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[ { "docid": "22238143", "title": "", "text": "not technically anions. However, since the patentee chose to be his own lexicographer, we will refer to these two acids as anions for purposes of this opinion. Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed.Cir.2005) (en banc). . The trial transcript reads, \"The patent examiner cannot [sic] have been aware of the Berge article as it was specifically noted and cited in the '303 patent itself. As such, the Court could not possibly find by clear and convincing evidence that the article and its teachings could not have been considered by the patent [sic] when ultimately determining whether the '303 patent was obvious.... ” Bench Order Tr. 22:16-22. We interpret this passage in the only way that makes sense— that the Examiner did consider the Berge reference during prosecution. While oral bench rulings are certainly authorized, they may be ill-advised in a case of this complexity- . The “clear and convincing” standard is an intermediate standard which lies somewhere in between the “beyond a reasonable doubt” and the \"preponderance of the evidence” standards of proof. Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); see also SSIH Equip. S.A. v. United States Int'l Trade. Comm’n, 718 F.2d 365, 380-81 (Fed.Cir.1983) (Nies, J., additional views). Although an exact definition is elusive, “clear and convincing evidence” has been described as evidence that \"placets] in the ultimate fact-finder an abiding conviction that the truth of its factual contentions are highly probable.” Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984) (internal quotations omitted). . We reject Apotex's assertion that the district court erred by giving weight to the commercial success of Norvasc®. The district court relied on the production of billions of amlodi-pine besylate tablets by Pfizer as evidence of non-stickiness rather than commercial success. Apotex’s arguments with regard to an alleged absence of a “nexus” between the claimed features and the sales of Norvasc® are therefore irrelevant." } ]

[ { "docid": "6942746", "title": "", "text": "particularly within an integrated instrument, and that Burns redesigned the luminometer through significant trial and error and experimentation to resolve problems with Toukan’s design. “Patent issuance creates a presumption that the named inventors are the true and only inventors.” Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460 (Fed.Cir.1998). Becton Dickinson conceded at the August 30, 2012 hearing that it bears the burden of proving Toukan’s inventorship. Inventorship must be proven by clear and convincing evidence. Id. Becton Dickinson has not carried its burden. Becton Dickinson argues there are no material disputes of fact concerning inventorship and the Court should find that Toukan is an inventor as a matter of law. But, “[ijnventorship is a mixed question of law and fact: The overall inventor-ship determination is a question of law, but it is premised on an underlying question of fact.” Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1362 (Fed.Cir.2004); see also Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1473 (Fed.Cir.1997) (“The determination of whether a person is a joint inventor is fact specific”). As explained below, the facts underlying the inventor-ship determination are disputed. Because the subject-matter jurisdiction determination turns on disputed issues of fact, the Court applies the standards for summary judgment. Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1558 (9th Cir.1987). There are disputed issues of fact concerning when conception occurred. “Conception is the touchstone of inventor-ship, ... 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.” Burroughs Wellcome Co. v. Barr Labs., Inc., 40 F.3d 1223, 1227-28 (Fed.Cir.1994) (emphasis added). While reduction to practice is not required, “[e]onception is complete only when the idea is so clearly defined in the inventor’s mind that only ordinary skill would be necessary to reduce the invention to practice, without extensive research or experimentation.” Id. at 1228 (emphasis added). Becton Dickinson has produced evidence of Toukan’s contributions to the luminometer, including the drawings of his design that appear in the specification," }, { "docid": "5921883", "title": "", "text": "to be heard. Id.; see also Stark v. Advanced Magnetics, Inc., 119 F.3d 1551, 1553 (Fed.Cir.1997). Both have been provided in this case. Therefore, the Court, if it is appropriate under the facts, may order correction of the patent. MCV, Inc. v. King-Seeley Thermos Co., 870 F.2d 1568, 1570 (Fed.Cir.1989) (“Section 256 ... explicitly authorizes judicial resolution of co-inventorship contests over issued patents ... ”). With respect to joint inventorship, the Federal Circuit has said: All that is required of a joint inventor is that he or she (1) contribute in some significant manner to the conception or reduction to practice of the invention; (2) make a contribution to the claimed invention that is not insignificant in quality, when that contribution is measured against the dimension of the full invention; and (3) do more than merely explain to the real inventors well-known concepts and/or the current state of the art. Pannu v. Iolab Corp., 155 F.3d 1344, 1351 (Fed.Cir.1998). Joint inventors must also be working in collaboration. See Kimberly-Clark Corp. v. Proctor & Gamble Distrib. Co., 973 F.2d 911, 917 (Fed.Cir.1992) (holding that joint inventorship requires some level of collaboration). However, “[t]he question of whether a person is a joint inventor is fact specific, and no bright-line standard will suffice in every case.” Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1473 (Fed.Cir.1997). Therefore, the facts of this case will be reviewed with respect to each patent to determine whether there is clear and convincing evidence that RPA’s five scientists meet the standard for joint inventorship. An inventorship analysis, like an infringement analysis, begins with a construction of each asserted claim. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 996 n. 7 (Fed.Cir.1995) (Mayer, J., concurring), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). After each asserted claim is construed, the second step is then to compare the alleged contributions of each asserted co-inventor with the subject matter of the properly construed claim to determine whether the correct inventors were named. Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460 (Fed.Cir.1998). Thus, the" }, { "docid": "10615699", "title": "", "text": "v. Proctor & Gamble Distrib. Co., 973 F.2d 911, 916 (Fed.Cir.1992) (emphases in original). “Individuals cannot be joint inventors if they are completely ignorant of what each other has done until ... after their individual independent efforts. They cannot be totally independent of each other and be joint inventors.” Id. at 917. Moreover, “co-inventors must collaborate and work together to collectively have a definite and permanent idea of the complete invention.” Vanderbilt Univ. v. ICOS Corp., 601 F.3d 1297, 1308 (Fed.Cir.2010). In other words, the statutory word “jointly” is not mere surplusage. For persons to be joint inventors under Section 116, there must be some element of joint behavior, such as collaboration or working under common direction, one inventor seeing a relevant report and building upon it or hearing another’s suggestion at a meeting. Kimberly-Clark, 973 F.2d at 917. A party seeking to be named joint inventor must also prove, by clear and convincing evidence, that her contribution to the invention in question was significant. Section 116 “sets no explicit lower limit on the quantum or quality of inventive contribution required for a person to qualify as a joint inventor.” Fina Oil, 123 F.3d at 1473. However, each joint inventor must “make a contribution to the conception of the claimed invention that is not insignificant in quality, when that contribution is measured against the dimension of the full invention.” Id. “The line between actual contributions to conception and the remaining, more prosaic contributions to the inventive process that do not render the contributor a co-inventor is sometimes a difficult one to draw.” Eli Lilly, 376 F.3d at 1359. For example, a contribution to conception does not include assisting the actual inventor after conception of the claimed invention. Id. III. Subject Matter of the Minireview Plaintiffs core inventorship contention is that Bass conceived of the critical structural characteristic of short-interfering RNAs claimed in the Tuschl II patents — that siR-NAs have overhangs of approximately 2 nucleotides on their 3’ end. At the hearing, the defendants argued as a threshold matter that this conception, as presented in the minireview, was not patent" }, { "docid": "19444911", "title": "", "text": "error an inventor is not named in an issued patent, the Director may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error. (b) PATENT VALID IF ERROR CORRECTED .-The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Director shall issue a certificate accordingly. 35 U.S.C. § 256 (2012). This section \"provides a cause of action to interested parties to have the inventorship of a patent changed to reflect the true inventors of the subject matter claimed in the patent.\" Fina Oil & Chem. Co. v. Ewen , 123 F.3d 1466, 1471 (Fed. Cir. 1997). Section 256 addresses two types of inventorship errors-misjoinder and nonjoinder. Stark v. Advanced Magnetics, Inc. , 119 F.3d 1551, 1553 (Fed. Cir. 1997). Misjoinder is the error of naming a person as an inventor who is not an inventor; nonjoinder is the error of omitting an inventor. See id. Through claims of misjoinder and nonjoinder together, § 256\"allows complete substitution of inventors.\" Id. at 1556 ; see id. at 1553. \"Conception is the touchstone of inventorship.\" Acromed Corp. v. Sofamor Danek Grp., Inc. , 253 F.3d 1371, 1379 (Fed. Cir. 2001) (quoting Burroughs Wellcome Co. v. Barr Labs., Inc. , 40 F.3d 1223, 1227 (Fed. Cir. 1994) ); accord Fina Oil , 123 F.3d at 1473. As to joint inventorship, a joint inventor must contribute to the invention's conception. E.g. , Eli Lilly & Co. v. Aradigm Corp. , 376 F.3d 1352, 1358-59 (Fed. Cir. 2004) ; Ethicon, Inc. v. U.S. Surgical Corp. , 135 F.3d 1456, 1460-61 (Fed. Cir. 1998) ; Fina Oil , 123 F.3d at 1473 (\"[T]o be a joint inventor, an individual must make a contribution to the conception of the claimed invention that is" }, { "docid": "11376046", "title": "", "text": "the facts of the instant case. In their brief on the motion to strike, Defendants delineated how they would differentiate the facts of Stem from the instant case. The Court finds that Lilly did not err in submitting additional authority on the in-ventorship issue. However, it did err when it sought to argue its position further along with its submission before seeking leave of the Court to further brief the issue already before it. As such, the Court will GRANT the motion to strike with respect to Lilly’s argument, but DENY the motion to strike with respect to submission of the supplemental authority itself. Defendants’ Joint Motion to Strike is GRANTED in part and DENIED in part. IV. DISCUSSION Because Lilly seeks summary judgment on the issue of whether or not the Doctors were inventors of the patents in suit, the standard for showing inventorship frames the Court’s analysis. An inventor may not have contributed to the subject matter of every claim of an invention, therefore, like most claims under patent law, the inventorship analysis begins with construction of the disputed claims. See Gemstar-TV Guide v. Int’l Trade Comm’n, 383 F.3d 1352, 1381-82 (Fed.Cir.2004). Then, the fact finder must compare “the alleged contributions of each asserted co-inventor with the subject matter of the correctly construed claim to determine whether the correct inventors were named.” Id. at 1382 (citing Trovan, Ltd. v. Sokymat SA, 299 F.3d 1292, 1302 (Fed.Cir.2002); Ethicon Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460-61 (Fed.Cir.1998)). Each alleged co-inventor, Dr. Crabtree and Dr. Plutzky, must establish his co-inventorship by clear and convincing evidence. See id. “To meet the burden of clear and convincing evidence, the [Doctors] must prove their contribution to the conception of the invention with more than their own testimony concerning the relevant facts.” Id. The Court uses a “rule of reason analysis” to determine whether each inventor’s testimony has been sufficiently corroborated. See id. The “rule of reason analysis” requires an evaluation of all pertinent evidence, including “records made contemporaneously with the inventive process[,]” oral testimony from someone other than the Doctors, and other" }, { "docid": "11289052", "title": "", "text": "is complete when one of ordinary skill in the art could construct the apparatus without unduly extensive research or experimentation.” Sewall v. Walters, 21 F.3d 411, 415, 30 USPQ2d 1356, 1359 (Fed.Cir.1994) (citing Summers v. Vogel, 52 C.C.P.A. 716, 332 F.2d 810, 816, 141 USPQ 816, 820 (1964)). An inventor may solicit the assistance of others when perfecting the invention without “losing” any patent rights. See Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 624, 225 USPQ 634, 641 (Fed.Cir.1985). However, the basic exercise of ordinary skill in the art, without an inventive act, does not make one a joint inventor. Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1473, 43 USPQ2d 1935, 1941 (Fed.Cir.1997). Because co-inventors need not “make a contribution to the subject matter of every claim of the patent,” 35 U.S.C. § 116, inventorship is determined on a claim-by-claim basis. See Ethicon, 135 F.3d at 1460, 45 USPQ2d at 1548. Moreover, an inventorship analysis, like an infringement or invalidity analysis, begins as a first step with a construction of each asserted claim to determine the subject matter encompassed thereby. Cf. Markman v. Westview Instruments, Inc., 52 F.3d 967, 996 n. 7, 34 USPQ2d 1321, 1344 n. 7 (Fed.Cir.1995) (Mayer, J., concurring), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996) (“A claim must be construed before determining its validity just as it is first construed before deciding infringement.”). The second step is then to compare the alleged contributions of each asserted co-inventor with the subject matter of the properly construed claim to then determine whether the correct inventors were named. See Ethicon, 135 F.3d at 1462, 45 USPQ2d at 1548-49. To meet the clear and convincing burden of proof, alleged co-inventors must prove their contribution to the conception with more than their own testimony respecting the facts surrounding a claim of derivation or priority of invention. Price v. Symsek, 988 F.2d 1187, 1194, 26 USPQ2d 1031, 1036 (Fed.Cir.1993). Whether the inventor’s testimony has been sufficiently corroborated is evaluated under a “rule of reason” analysis. Id. at 1195. Under this analysis, “[a]n" }, { "docid": "10615698", "title": "", "text": "“rule of reason” analysis to determine whether a putative co-inventor’s testimony has been sufficiently corroborated, which includes evaluation of contemporary records, oral testimony from someone other than the putative inventor, or other circumstantial evidence. Id. “The determination of whether a person is a joint inventor is fact-specific, and no bright-line standard will suffice in every case.” Fina Oil, 123 F.3d at 1472. The overall inventorship determination, though, is a question of law, premised on underlying questions of fact. Eli Lilly, 376 F.3d at 1362. One major requirement for establishing joint inventorship is collaboration. Joint inventorship may only arise “when collaboration or concerted effort occurs — that is, when the inventors have some open line of communication” surrounding their inventive efforts. Id. at 1359. Otherwise put, an individual must “demonstrate that his labors were conjoined with the efforts of the named inventors.” Id. The resulting invention must be “the product of collaboration of the inventive endeavors of two or more persons working toward the same end and producing an invention by their aggregate efforts.” Kimberly-Clark Corp. v. Proctor & Gamble Distrib. Co., 973 F.2d 911, 916 (Fed.Cir.1992) (emphases in original). “Individuals cannot be joint inventors if they are completely ignorant of what each other has done until ... after their individual independent efforts. They cannot be totally independent of each other and be joint inventors.” Id. at 917. Moreover, “co-inventors must collaborate and work together to collectively have a definite and permanent idea of the complete invention.” Vanderbilt Univ. v. ICOS Corp., 601 F.3d 1297, 1308 (Fed.Cir.2010). In other words, the statutory word “jointly” is not mere surplusage. For persons to be joint inventors under Section 116, there must be some element of joint behavior, such as collaboration or working under common direction, one inventor seeing a relevant report and building upon it or hearing another’s suggestion at a meeting. Kimberly-Clark, 973 F.2d at 917. A party seeking to be named joint inventor must also prove, by clear and convincing evidence, that her contribution to the invention in question was significant. Section 116 “sets no explicit lower limit on the quantum" }, { "docid": "10918544", "title": "", "text": "apply “even though ... they did not physically work together or at the same time, ... each did not make the same type or amount of contribution, or ... éach did not make a contribution to the subject matter of every claim of the patent.” Id. § 116. Because conception is the touchstone of inventorship, each “joint’ inventor must contribute in some significant manner to the conception of the invention.” Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1473 (Fed.Cir.1997); see also Ethicon, 135 F.3d at 1460. “Conception is 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.” Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376 (Fed.Cir.1986) (internal quotation marks omitted). “An inventor may solicit the assistance of others when perfecting the invention without ‘losing’ any patent rights.” Trovan, Ltd. v. Sokymat SA 299 F.3d 1292, 1302 (Fed.Cir.2002). Because co-inventors need not contribute to the subject matter of every claim of the patent, inventorship is determined on a claim-by-claim basis. Id. Moreover, the inventorship analysis, like an infringement or invalidity analysis, first requires the construction of each disputed claim to determine the subject matter en compassed thereby. Id. The second step is a comparison of the alleged contributions of each asserted co-inventor with the subject matter of the correctly construed claim to determine whether the correct inventors were named. Id.; Ethicon, 135 F.3d at 1460-61. Alleged co-inventors must establish their co-inventorship by facts supported by clear and convincing evidence. Ethicon, 135 F.3d at 1461. To meet the burden of clear and convincing evidence, the alleged co-inventors must prove their contribution to the conception of the invention with more than their own testimony concerning the relevant facts. Trovan, 299 F.3d at 1302 (citing Price v. Symsek, 988 F.2d 1187, 1194 (Fed.Cir.1993)). Whether the co-inventor’s testimony has been sufficiently corroborated is evaluated under a “rule of reason analysis,” which requires that an “evaluation of all pertinent evidence must be made so that a sound determination of the credibility" }, { "docid": "19444912", "title": "", "text": "Inc. , 119 F.3d 1551, 1553 (Fed. Cir. 1997). Misjoinder is the error of naming a person as an inventor who is not an inventor; nonjoinder is the error of omitting an inventor. See id. Through claims of misjoinder and nonjoinder together, § 256\"allows complete substitution of inventors.\" Id. at 1556 ; see id. at 1553. \"Conception is the touchstone of inventorship.\" Acromed Corp. v. Sofamor Danek Grp., Inc. , 253 F.3d 1371, 1379 (Fed. Cir. 2001) (quoting Burroughs Wellcome Co. v. Barr Labs., Inc. , 40 F.3d 1223, 1227 (Fed. Cir. 1994) ); accord Fina Oil , 123 F.3d at 1473. As to joint inventorship, a joint inventor must contribute to the invention's conception. E.g. , Eli Lilly & Co. v. Aradigm Corp. , 376 F.3d 1352, 1358-59 (Fed. Cir. 2004) ; Ethicon, Inc. v. U.S. Surgical Corp. , 135 F.3d 1456, 1460-61 (Fed. Cir. 1998) ; Fina Oil , 123 F.3d at 1473 (\"[T]o be a joint inventor, an individual must make a contribution to the conception of the claimed invention that is not insignificant in quality, when that contribution is measured against the dimension of the full invention.\"). He or she need not \"make the same type or amount of contribution\" to the invention nor contribute to every claim-a contribution to one claim is enough. Ethicon , 135 F.3d at 1460 (quoting 35 U.S.C. § 116 ). Further, with regard to joint inventorship, there must be \"some quantum of collaboration.\" Kimberly-Clark Corp. v. Procter & Gamble Distrib. Co. , 973 F.2d 911, 917 (Fed. Cir. 1992) (\"[T]here must be some element of joint behavior, such as collaboration or working under common direction, one inventor seeing a relevant report and building upon it or hearing another's suggestion at a meeting.\"); see Eli Lilly , 376 F.3d at 1359 (referring to the inventors having \"some open line of communication during or in temporal proximity to their inventive efforts\"). Accepting the complaint's well-pleaded factual allegations as true and drawing all reasonable inferences in Plaintiffs' favor, we conclude that Plaintiffs' claims for correction of inventorship are plausible. The complaint describes Goodyear's" }, { "docid": "5921884", "title": "", "text": "Co., 973 F.2d 911, 917 (Fed.Cir.1992) (holding that joint inventorship requires some level of collaboration). However, “[t]he question of whether a person is a joint inventor is fact specific, and no bright-line standard will suffice in every case.” Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1473 (Fed.Cir.1997). Therefore, the facts of this case will be reviewed with respect to each patent to determine whether there is clear and convincing evidence that RPA’s five scientists meet the standard for joint inventorship. An inventorship analysis, like an infringement analysis, begins with a construction of each asserted claim. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 996 n. 7 (Fed.Cir.1995) (Mayer, J., concurring), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). After each asserted claim is construed, the second step is then to compare the alleged contributions of each asserted co-inventor with the subject matter of the properly construed claim to determine whether the correct inventors were named. Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460 (Fed.Cir.1998). Thus, the construction of each of the patents will first be discussed, followed by a determination of whether joint inventorship is appropriate under the standard set forth above. A. The %97 Patent 1. Claim Construction The first patent for which RPA seeks to have its five scientists declared joint inventors is the ’497 patent or “Spencer patent”. For present purposes, the crucial claim in the ’497 patent is claim 46, which reads as follows: A glyphosate resistant, hybrid maize plant comprising a chromosomally integrated expression cassette comprising (a) a modified maize EPSPS gene encoding an EPSPS protein having isoleucine at position 102 and serine at position 106 and (b) a promoter active in maize oper-ably linked to said EPSPS gene, wherein said hybrid maize plant comprises a transformation event selected from the group consisting of GA21, seed comprising said GA21 transformation event having been deposited as ATCC Accession Number 209033, FI117, seed comprising said FI117 transformation event having been deposited as ATCC Accession Number 209031,GG25, seed comprising said GG25 transformation event having been deposited as ATCC Accession" }, { "docid": "10918543", "title": "", "text": "the ITC erred by failing to construe the claims, instead determining that Neil made contributions to “key facets” or “foci” of the patent. Gemstar maintains that the ITC erred in finding that Neil presented facts supported by clear and convincing evidence corroborating his contribution to the claims of the '121 patent. Scientific-Atlanta responds that the ITC specifically identified Neil’s inventive contributions, explained how those contributions appeared in particular claim limitations, and correctly concluded that Neil’s testimony was adequately corroborated under the “rule of reason” analysis. A patent is invalid if more or fewer than the true inventors are named. Jamesbury Corp. v. United States, 207 Ct.Cl. 516, 518 F.2d 1384, 1395 (1975). Because a patent is presumed valid under 35 U.S.C. § 282, there follows a presumpr tion that the named inventors on a patent are the true and only inventors. See Hess v. Advanced Cardiovascular Sys., Inc., 106 F.3d 976, 980 (Fed.Cir.1997). When two or more persons jointly invent, they must jointly apply for a patent. 35 U.S.C. § 116 (2000). Co-inventors must so apply “even though ... they did not physically work together or at the same time, ... each did not make the same type or amount of contribution, or ... éach did not make a contribution to the subject matter of every claim of the patent.” Id. § 116. Because conception is the touchstone of inventorship, each “joint’ inventor must contribute in some significant manner to the conception of the invention.” Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1473 (Fed.Cir.1997); see also Ethicon, 135 F.3d at 1460. “Conception is 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.” Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376 (Fed.Cir.1986) (internal quotation marks omitted). “An inventor may solicit the assistance of others when perfecting the invention without ‘losing’ any patent rights.” Trovan, Ltd. v. Sokymat SA 299 F.3d 1292, 1302 (Fed.Cir.2002). Because co-inventors need not contribute to the subject matter of every claim of" }, { "docid": "8181090", "title": "", "text": "“We review the [district court’s] underlying findings of fact for clear error.” Id. “Because the issuance of a patent creates a presumption that the named inventors are the true and only inventors, the burden of showing misjoinder or nonjoinder of inventors is a heavy one and must be proved by clear and convincing evidence.” Bd. of Educ. v. Am. BioSci, Inc., 333 F.3d 1330, 1337 (Fed.Cir.2003) (citations omitted). “A joint invention is the product of a collaboration between two or more persons working together to solve the problem addressed.” Burroughs Well-come Co. v. Barr Labs., Inc., 40 F.3d 1223, 1227 (Fed.Cir.1994). People may be joint inventors even though they do not physically work on the invention together or at the same time, and even though each does not make the same type or amount of contribution. 35 U.S.C. § 116. “Thus, the critical question for joint conception is who conceived, as that term is used in the patent law, the subject matter of the claims at issue.” Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460 (Fed.Cir.1998). “A contribution to one claim is enough.” Id. “The statute does not set forth the minimum quality or quantity of contribution required for joint inventorship.” Burroughs, 40 F.3d at 1227. Each joint inventor, however, “must contribute in some significant manner to the conception of the invention.” Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1473 (Fed.Cir.1997). Conception of a chemical compound “requires knowledge of both the specific chemical structure of the compound and an operative method of making it.” Id. The district court issued extensive findings of fact and concluded that Falana’s contribution of the Synthesis Protocol was sufficient contribution to the conception of the claimed invention as to render him a joint inventor on the patent. The Defendants do not challenge any of the district court’s findings of fact, but instead, only challenge the district court’s legal determination that Falana was a joint inventor. Specifically, the Defendants contend that even if Falana contributed the Synthesis Protocol method, that contribution is insufficient to make him a co-inventor of the claims" }, { "docid": "21204893", "title": "", "text": "from a patent may seek correction of the patent in federal court. In a § 256 proceeding, “the inventors as named in an issued patent are presumed to be correct.” Hess v. Advanced Cardiovascular Sys., Inc., 106 F.3d 976, 980 (Fed.Cir.1997) (citations and internal quotation marks omitted). Because of this presumption and the temptation for even honest witnesses to reconstruct events in a favorable manner, the claimed inventor must meet a heavy burden of proving his case by clear and convincing evidence. See id. To satisfy this standard, the claimed inventor must provide evidence corroborating his testimony concerning conception of the invention. See Ethicon, Inc. v. United States Surgical Corp., 135 F.3d 1456, 1461 (Fed.Cir.1998); Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1358 (Fed.Cir.2004). Corroborating evidence may take many forms, including contemporaneous documentary or physical evidence, oral testimony of others, and circumstantial evidence. See Trovan, Ltd. v. Sokymat SA, 299 F.3d 1292, 1303 (Fed.Cir.2002); Sandt Tech., Inc. v. Resco Metal & Plastics Corp., 264 F.3d 1344, 1350-51 (Fed.Cir.2001). Whether the testimony is sufficiently corroborated is evaluated under a “rule of reason” analysis, whereby the Court views all evidence before it in making a sound determination as to the credibility of the claimed inventor’s story. Id. at 1295. “To be a joint inventor, an individual must make a contribution to the conception of the claimed invention that is not insignificant in quality, when that contribution is measured against the dimension of the full invention.” Fina Oil and Chem. Co. v. Ewen, 123 F.3d 1466, 1473 (Fed.Cir.1997); see also Eli Lilly & Co., 376 F.3d at 1358; Ethicon Inc., 135 F.3d at 1460. Conception is a term of art in patent law. “Conception exists when a definite and permanent idea of an- operative invention, including every feature of the subject matter sought to be patented, is known.” Sewall v. Walters, 21 F.3d 411, 415 (Fed.Cir.1994). Conception is complete when “only ordinary skill would be necessary to reduce the invention to practice, without extensive research or experimentation.” Burroughs Wellcome Co. v. Barr Labs., Inc., 40 F.3d 1223, 1228 (Fed.Cir.1994). A" }, { "docid": "10615696", "title": "", "text": "be considered when evaluating the sufficiency of the evidence on a motion for summary judgment.” Id. Therefore, the summary judgment record should be considered in light of the plaintiffs burden to show joint inventorship by clear and convincing evidence. See, e.g., Linear Tech. Corp. v. Impala Linear Corp., 379 F.3d 1311, 1327 (Fed.Cir.2004). II. Correction of Inventorship 35 U.S.C. § 256 provides that whenever “through error an inventor is not named in an issued patent, the Director may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error.” In turn, 35 U.S.C. § 116 establishes the standard for joint inventorship: Inventors may apply for a patent jointly even though (1) they did not physically work together or at the same time, (2) each did not make the same type or amount of contribution, or (3) each did not make a contribution to the subject matter of every claim of the patent. In a § 256 proceeding, “the inventors as named in an issued patent are presumed to be correct.” Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1358 (Fed.Cir.2004) (internal quotation omitted). Accordingly, the party alleging non-joinder of inventors must “meet the heavy burden of proving its 'case by clear and convincing evidence.” Id. “The clear and convincing burden of proof is applied to joint inven-torship disputes because of a ‘strong temptation for persons who consulted with the inventor and provided him with materials and advice, to reconstruct, so as to further their own position, the extent of their contribution to the conception of the invention.’” Id. at 1366-67 (citation omitted). A putative co-inventor’s testimony cannot, standing alone, rise to the level of clear and convincing evidence. Ethicon, Inc. v. United States Surgical Corp., 135 F.3d 1456, 1461 (Fed.Cir.1998). To meet this burden, would-be co-inventors “must prove their contribution to the conception of the invention with more than their own testimony concerning the relevant facts.” Gemstar-TV Guide Int’l, Inc. v. Int’l Trade Comm’n, 383 F.3d 1352, 1382 (Fed.Cir.2004). Courts use a" }, { "docid": "21204897", "title": "", "text": "establish by clear and convincing evidence that he made a significant contribution to the conception of the claimed invention. The first step is to construct the scope of the claims. Only by doing so is it possible to compare the contributions of the claimed co-inventor with the subject matter of the properly construed claim to determine whether the correct inventors were named. See Eli Lilly & Co., 376 F.3d at 1360; Trovan, Ltd., 299 F.3d at 1302. Neither party has requested a formal claim construction hearing, and such a hearing is required only “when the meaning or scope of technical terms and words of art is unclear and in dispute.” United States Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed.Cir.1997). The Court must construe each patent separately in conducting this analysis, and will begin with the design patent. “A design patent protects the non-functional aspects of an ornamental design as seen as a whole and as shown in the patent.” KeyStone Retaining Wall Sys., Inc. v. Westrock, Inc., 997 F.2d 1444, 1450 (Fed.Cir.1993). “An ordinary observer test governs design patent infringement: ‘[I]f in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.’ ” Amini Innovation Corp. v. Anthony California, Inc., 439 F.3d 1365, 1371 (Fed.Cir.2006) (citing Gorham Co. v. White, 14 Wall. 511, 81 U.S. 511, 528, 20 L.Ed. 731 (1871)). A design patent usually consists of only drawings, with no descrip tion. See 37 C.F.R. § 1.153(a). This is the case here: the claim reads only, “I claim the ornamental design for a mixed cut diamond, as shown and described.” (Defs.’ Ex. G.) There follows five different perspectives of the diamond. Mardkha argues that the design patent protects the design “in a broad way” and is properly constructed as a cushion-shaped diamond with “brilliant cut crown facets and step cut pavilion facets.” (Defs.’ Mem. of" }, { "docid": "10615697", "title": "", "text": "as named in an issued patent are presumed to be correct.” Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1358 (Fed.Cir.2004) (internal quotation omitted). Accordingly, the party alleging non-joinder of inventors must “meet the heavy burden of proving its 'case by clear and convincing evidence.” Id. “The clear and convincing burden of proof is applied to joint inven-torship disputes because of a ‘strong temptation for persons who consulted with the inventor and provided him with materials and advice, to reconstruct, so as to further their own position, the extent of their contribution to the conception of the invention.’” Id. at 1366-67 (citation omitted). A putative co-inventor’s testimony cannot, standing alone, rise to the level of clear and convincing evidence. Ethicon, Inc. v. United States Surgical Corp., 135 F.3d 1456, 1461 (Fed.Cir.1998). To meet this burden, would-be co-inventors “must prove their contribution to the conception of the invention with more than their own testimony concerning the relevant facts.” Gemstar-TV Guide Int’l, Inc. v. Int’l Trade Comm’n, 383 F.3d 1352, 1382 (Fed.Cir.2004). Courts use a “rule of reason” analysis to determine whether a putative co-inventor’s testimony has been sufficiently corroborated, which includes evaluation of contemporary records, oral testimony from someone other than the putative inventor, or other circumstantial evidence. Id. “The determination of whether a person is a joint inventor is fact-specific, and no bright-line standard will suffice in every case.” Fina Oil, 123 F.3d at 1472. The overall inventorship determination, though, is a question of law, premised on underlying questions of fact. Eli Lilly, 376 F.3d at 1362. One major requirement for establishing joint inventorship is collaboration. Joint inventorship may only arise “when collaboration or concerted effort occurs — that is, when the inventors have some open line of communication” surrounding their inventive efforts. Id. at 1359. Otherwise put, an individual must “demonstrate that his labors were conjoined with the efforts of the named inventors.” Id. The resulting invention must be “the product of collaboration of the inventive endeavors of two or more persons working toward the same end and producing an invention by their aggregate efforts.” Kimberly-Clark Corp." }, { "docid": "8181089", "title": "", "text": "Falana. Appellee’s Br. 24. Thus, Falana asserts that even if the district court abused its discretion, any error was harmless. Id. at 26-27. This court finds no basis to upset the district court’s evidentiary ruling. Although the district court may have erred in excluding these exhibits without providing any explanation, any such error in this case was harmless. The Defendants sought to admit these exhibits not to demonstrate that the entire Synthesis Protocol was known in the art, but only to show that certain portions of the Synthesis Protocol were known. The district court did permit Seed the opportunity to explain the portions of the Synthesis Protocol that were known in the art and thus these exhibits would have been cumulative of his testimony. Accordingly, this court is unable to conclude that the error in the exclusion of exhibits CCCC and DDDD resulted in substantial injustice. Zamlen, 906 F.2d at 216. C. Joint Inventorship “Inventorship is a question of law that we review without deference.” Vanderbilt Univ. v. ICOS Corp., 601 F.3d 1297, 1303 (Fed.Cir.2010). “We review the [district court’s] underlying findings of fact for clear error.” Id. “Because the issuance of a patent creates a presumption that the named inventors are the true and only inventors, the burden of showing misjoinder or nonjoinder of inventors is a heavy one and must be proved by clear and convincing evidence.” Bd. of Educ. v. Am. BioSci, Inc., 333 F.3d 1330, 1337 (Fed.Cir.2003) (citations omitted). “A joint invention is the product of a collaboration between two or more persons working together to solve the problem addressed.” Burroughs Well-come Co. v. Barr Labs., Inc., 40 F.3d 1223, 1227 (Fed.Cir.1994). People may be joint inventors even though they do not physically work on the invention together or at the same time, and even though each does not make the same type or amount of contribution. 35 U.S.C. § 116. “Thus, the critical question for joint conception is who conceived, as that term is used in the patent law, the subject matter of the claims at issue.” Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d" }, { "docid": "8181092", "title": "", "text": "of the '789 Patent, which are all directed to chemical compositions and not methods. The Defendants also contend that Falana synthesized Compound 7, not Compound 9, and that Compound 7 does not fall within the scope of the claims. Falana responds that he was the one who developed the Synthesis Protocol, which made it possible to make a previously-unknown genus of compounds, to wit, naphthyl substituted TADDOLs. This was the method used by Falana to synthesize Compound 7, the method used by Seed to synthesize Compound 9, and the only method disclosed in the '789 Patent for making the claimed compounds. Finally, Falana contends that because he contributed the method of making the novel class of compounds claimed in the '789 Patent, his contribution to conception was sufficient to make him a joint inventor. The question before this court is whether a putative inventor who envisioned the structure of a novel chemical compound and contributed to the method of making that compound is a joint inventor of a claim covering that compound. The Defendants assert that American BioScience compels the answer “no” to the question before us. The Defendants contend that American BioScience held that a putative inventor’s contribution of a method for making chemical compounds is legally irrelevant to whether he is a joint inventor on a patent that “does not claim any method of making those compounds.” Appellant’s Br. 28 (quoting Am. BioSci, 333 F.3d at 1341). This reading of American BioScience is erroneous and the facts of this case are manifestly distinct. See Fina, 123 F.3d at 1473 (“The determination of whether a person is a joint inventor is fact specific and no bright-line standard will suffice in every case.”). In American BioScience, the court was faced with choosing between two competing groups of inventors. Am. BioSci, 333 F.3d at 1340; see also Vanderbilt Univer sity, 601 F.3d at 1306. The passage quoted by the Defendants concerns whether Nadizadeh, a putative co-inventor and scientist for FSU, was a joint inventor on the patent when Tao, named co-inventor and a scientist for ABI, allegedly used Nadizadeh’s “secret” method" }, { "docid": "11376047", "title": "", "text": "begins with construction of the disputed claims. See Gemstar-TV Guide v. Int’l Trade Comm’n, 383 F.3d 1352, 1381-82 (Fed.Cir.2004). Then, the fact finder must compare “the alleged contributions of each asserted co-inventor with the subject matter of the correctly construed claim to determine whether the correct inventors were named.” Id. at 1382 (citing Trovan, Ltd. v. Sokymat SA, 299 F.3d 1292, 1302 (Fed.Cir.2002); Ethicon Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460-61 (Fed.Cir.1998)). Each alleged co-inventor, Dr. Crabtree and Dr. Plutzky, must establish his co-inventorship by clear and convincing evidence. See id. “To meet the burden of clear and convincing evidence, the [Doctors] must prove their contribution to the conception of the invention with more than their own testimony concerning the relevant facts.” Id. The Court uses a “rule of reason analysis” to determine whether each inventor’s testimony has been sufficiently corroborated. See id. The “rule of reason analysis” requires an evaluation of all pertinent evidence, including “records made contemporaneously with the inventive process[,]” oral testimony from someone other than the Doctors, and other independent circumstantial evidence. Id. However, the preferable source is contemporaneous documentary evidence. See id. (citing Sandt Tech., Ltd. v. Resco Metal & Plastics Corp., 264 F.3d 1344, 1350-51 (Fed.Cir.2001)). Conception is the touchstone of inventorship. See id. at 1381 (citing Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1473 (Fed.Cir.1997)). “ ‘Conception is 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.’ ” Id. (quoting Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376 (FedCir.1986) (internal quotations omitted by Gemstar-Tv court)). In order to describe an invention with particularity, an inventor must have both (1) the idea of the invention’s structure and (2) possession of an operative method of making it.... Thus, with regard to a claimed chemical compound, conception requires that the inventor “be able to define” the compound “so as to distinguish it from other materials, and to describe how to obtain it.” Invitrogen Corp. v. Clontech Labs., Inc., 429" }, { "docid": "21204896", "title": "", "text": "Ford Co., 758 F.2d 613, 624 (Fed. Cir.1985) (“an inventor may use the services, ideas, and aid of others in the process of perfecting his invention without losing his right to a patent”). Thus, in Hess, a company representative who suggested a material to two inventors and a method of binding that material was not a co-inventor where the two inventors took the material and, after significant experimentation, used the material, but not the binding method. 106 F.3d at 980-81. Nor does exercising ordinary skill in the art to reduce an idea to practice make one a co-inventor. Sewall, 21 F.3d at 416. Thus, in Sewall, a computer chip designer following explicit specifications by the inventor was not deemed to be a co-inventor. Id. Nor does “merely assisting the actual inventor after conception of the claimed invention” make one a co-inventor. Ethicon, Inc., 135 F.3d at 1460. A. Patent Construction Assessing the evidence in the light most favorable to plaintiff, the Court must determine whether, as a matter of law, plaintiff will be unable to establish by clear and convincing evidence that he made a significant contribution to the conception of the claimed invention. The first step is to construct the scope of the claims. Only by doing so is it possible to compare the contributions of the claimed co-inventor with the subject matter of the properly construed claim to determine whether the correct inventors were named. See Eli Lilly & Co., 376 F.3d at 1360; Trovan, Ltd., 299 F.3d at 1302. Neither party has requested a formal claim construction hearing, and such a hearing is required only “when the meaning or scope of technical terms and words of art is unclear and in dispute.” United States Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed.Cir.1997). The Court must construe each patent separately in conducting this analysis, and will begin with the design patent. “A design patent protects the non-functional aspects of an ornamental design as seen as a whole and as shown in the patent.” KeyStone Retaining Wall Sys., Inc. v. Westrock, Inc., 997 F.2d 1444, 1450 (Fed.Cir.1993)." } ]

[ { "docid": "11646734", "title": "", "text": "not object to the departure or variance, the district court’s reasoning, or his sentence. Franklin appeals his sentence, claiming the district court committed both procedural and substantive error “by failing to consider Franklin’s lack of intent when determining the extent of an upward departure under U.S.S.G. § 5K2.2.” II. DISCUSSION In reviewing the sentence imposed by the district court, we must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence— including an explanation for any deviation from the Guidelines range. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If the district court did not procedurally err, we “then consider the substantive reasonable ness of the sentence imposed under an abuse-of-discretion standard.” Id. A. No Procedural Error Franklin contends the district court committed procedural error by failing “to explain whether and to what extent it had considered [U.S.S.G. § ] 5K2.2’s recommendation that a substantial departure is warranted only when the referenced injuries were intentionally inflicted.” (emphasis omitted). While the district court’s comments concerning the nature of the increase in Franklin’s sentence are somewhat ambiguous, we view this increase as more likely a variance, rather than a departure, and conclude the district court did not abuse its considerable discretion by varying upwards. See United States v. Richart, 662 F.3d 1037, 1053-54 (8th Cir.2011) (applying the standard of review). If the district court’s increase were a departure, we respond to Franklin’s arguments concerning an upward departure. We review this procedural challenge for plain error because Franklin did not raise the challenge in the district court. See United States v. Molnar, 590 F.3d 912, 914 (8th Cir.2010). Under plain error review, Franklin must show “(1) there was error, (2) the error was plain, and (3) the error affected his substantial rights,” meaning it was prejudicial. Id. at 915. “In the sentencing context, an error is" } ]

[ { "docid": "19940153", "title": "", "text": "to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments), the sentence for the instant offense shall be imposed as follows: (1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and (2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment. “Thus, § 5G1.3(b) provides for an adjustment in sentence only where the undischarged sentence was (1) for a crime that constitutes relevant conduct for the instant offense and (2) was the basis for an increase in the offense level for the instant offense under Chapters Two or Three of the Guidelines.” See United States v. Lino, 493 F.3d 41, 44 (2007). We begin, therefore, with an examination of how Rogers’ state offenses impacted the determination of his guideline offense level. Determining Rogers’ offense level was a multi-step process. First, under the 2003 Guidelines, § 2G2.4 provided the base offense level for a violation of 18 U.S.C. § 2252A(a)(5)(B). U.S.S.G. § 2G2.4 (2003). However, § 2G2.4(c)(l) provided that “[i]f the offense involved causing ... a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct,” § 2G2.1 applies. Id. § 2G2.4(c)(l). Under the Guidelines, a defendant’s “offense conduct” includes both the conduct underlying the specific federal charges — here, the 57 pornographic images on Rogers’ computer — -and all “relevant conduct.” Id. § 1B1.3. In Rogers’ case, the district court treated his possession of the videotapes of Child A and Child B as “relevant conduct.” Because the videotapes satisfied the requirements of § 2G2.4(e)(l), the district court looked to § 2G2.1 to determine Rogers’ offense level. In the 2003 Guidelines, § 2G2.1" }, { "docid": "20253988", "title": "", "text": "Consecutive sentences are specifically contemplated by the Sentencing Guidelines, which provide that, in cases where the defendant is subject to an undischarged term of imprisonment, “the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the pri- or undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” United States Sentencing Commission, Guidelines Manual, § 5G1.3(c) (Nov.1995) ; see also 18 U.S.C. § 3584(a) (authorizing a court to impose concurrent or consecutive sentences absent exceptions that do not apply here and stating that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently”). In determining whether to impose a concurrent or consecutive sentence, the Guidelines direct the sentencing court to: consider the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)) and be cognizant of: (a) the type {e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence; (b) the time served on the undischarged sentence and the time likely to be served before release; (c) the fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and (d) any other circumstance relevant to the determination of an appropriate sentence for the instant offense. USSG § 5G1.3, comment, (n.3). Here, we are satisfied that the district court’s discussion of the § 3553(a) factors was sufficient to comply \"with 18 U.S.C. § 3584 and USSG § 5G1.3. Additionally, it is clear that the district court was cognizant of the details of Lomeli’s Texas murder sentence, which is all that the Guidelines require. Thus, we find no plain error in the district court’s decision to order a consecutive sentence and, therefore, no procedural error in Lomeli’s sentence. Absent any procedural error, we “consider the substantive reasonableness of [Lomeli’s] sentence ... under an abuse-of-diseretion standard,” Gall, 552 U.S. at 51, 128 S.Ct. 586, and we hold that Lomeli’s sentence, which was within the advisory Guidelines range, was reasonable. See" }, { "docid": "22254680", "title": "", "text": "that he now alleges regarding the length of his sentence must be reviewed under the plain-error standard. See United States v. Lalonde, 509 F.3d 750, 757 (6th Cir.2007) (citing United States v. Vonn, 535 U.S. 55, 66, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (“A defendant’s right to review of error he let pass in silence depends upon the plain error rule.”)). “The defendant bears the burden of proof on plain error review” and, in order to prevail, he must show that there is (1) error, (2) that is plain, and (3) that affects [his] substantial rights. If all three conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or reputation of judicial proceedings. Id. at 757-58. B. Procedural reasonableness Polihonki argues that his sentence is procedurally unreasonable because the district court failed to adequately explain the basis for the sentence imposed. He specifically cites the court’s failure to (1) refer to the recommended Guidelines range set forth in Polihonki’s SRVR, and (2) address his argument that he had been employed and had a job waiting for him. 1. Consideration of the § 3553(a) factors and the Guidelines range “This court has held that in sentencing for revocation of supervised release, district courts must sentence in a manner that reflects consideration of certain factors listed in 18 U.S.C. § 3553.” United States v. Johnson, 403 F.3d 813, 815 (6th Cir.2005) (internal quotation marks omitted); see also United States v. Washington, 147 F.3d 490, 491 (6th Cir. 1998) (explaining that Chapter 7 of the Guidelines applies to sentences imposed following a supervised-release revocation, but that both the policy statements contained therein and the corresponding sentencing range “are merely advisory and do not bind the district court”); § 3583(e) (providing that the district court may revoke a term of supervised release upon consideration of the factors set forth in § 3553(a)). The relevant factors in this case, as in Johnson, are “the nature of the offense; the need to deter criminal conduct, to protect the" }, { "docid": "22333206", "title": "", "text": "an Undischarged Term of Imprisonment.” . At the time of Mr. Contreras’ sentencing, § 5G1.3(a) required a consecutive sentence when the defendant committed the instant offense while serving a term of imprisonment, or before the defendant began serving such a term. Section 5G1.3(b) required a concurrent sentence when “a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction.” Section 5G1.3(c), a policy statement, applied in any other case involving an undischarged term of imprisonment, and authorized the district court to impose a sentence to run concurrently, partially concurrently, or consecutively to the undischarged sentence “to achieve a reasonable punishment.” The parties agree subsection (a) did not apply here. Rather, Mr. Contreras contends subsection (b) mandated the imposition of a concurrent sentence because his illegal reentry and violation of supervised release sentences were based on the same underlying relevant conduct. Because Mr. Contreras failed to argue at sentencing that the court was required, as a matter of law, to order the sentence it imposed for the supervised release violation to run concurrently with the sentence imposed for his illegal reentry, we review this claim for plain error. United States v. Hurlich, 348 F.3d 1219, 1220 (10th Cir.2003). The plain error test requires Mr. Contreras to demonstrate the district court (1) committed error, (2) that is plain, and (3) affects substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If Mr. Contreras meets his burden of establishing the first three prongs of the plain error test, we may exercise discretion to correct the error if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 469-70, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). Here, however, we need not examine the second, third, or fourth prongs of the plain error test because we conclude the district court committed no error. \"TJ.S.S.G. § 5G1.3(b)'s central aim is to ensure no defendant is punished twice for the same crime.\" United States" }, { "docid": "19940152", "title": "", "text": "3584(a)); see United States v. Caldwell, 358 F.3d 138, 143 (1st Cir.2004). “Exercise of that authority, however, is predicated on the court’s consideration of the factors listed in 18 U.S.C. § 3553(a), including any applicable guidelines or policy statements issued by the Sentencing Commission.” U.S.S.G. § 5G1.3, cmt. background; see 18 U.S.C. § 3584(b); Caldwell, 358 F.3d at 143. Section 5G1.3 of the Guidelines addresses the “Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment.” U.S.S.G. § 5G1.3. Part (a) specifies when consecutive sentences are required; part (b) specifies when concurrent sentences are required; and part (c) covers “any other case” and gives the district court the discretion to impose sentence concurrently, partially concurrently or consecutively, “to achieve a reasonable punishment for the instant offense.” Id. § 5G1.3(a)-(e). Rogers argues on appeal, as he did before the district court, that his case is covered by § 5G1.3(b), which, in the 2003 version of the Guidelines, provided: If ... a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments), the sentence for the instant offense shall be imposed as follows: (1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and (2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment. “Thus, § 5G1.3(b) provides for an adjustment in sentence only where the undischarged sentence was (1) for a crime that constitutes relevant conduct for the instant offense and (2) was the basis for an increase in the offense level for the instant offense under Chapters Two or Three of the Guidelines.” See United States" }, { "docid": "10805997", "title": "", "text": "term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that was the basis for an increase in the offense level for the instant offense, ... the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment. U.S.S.G. § 5G1.3(b)(2). The district court stated it did “not believe that its decision with respect to the non-applicability of [§ ] 5G1.3[ (b) ] in this case is a departure from the Sentencing Guidelines.” Rec. vol. 3, at 585. The court’s stilted view was a • result of its refusal to properly consider Defendant’s North Dakota offense as relevant conduct under § lB1.3(a). As we just explained, the court had no discretion in this particular matter. In calculating Defendant’s advisory guideline range, § lB1.3(a)(l)(A) & (2) required the court to consider that prior offense as part of his relevant conduct rather than the resulting sentence as part of his criminal history. This, in turn, required the court to account for U.S.S.G. § 5G1.3(b)(2) and, absent a variance based on the § 3553(a) factors, impose a concurrent term of imprisonment on Defendant as part of any sentence within the applicable guideline range. On this point, the Government refuses to concede error, instead insisting in its appellate brief that the district court’s “thorough and individualized analysis of the [§ ] 3553(a) [factors] and why they support a consecutive sentence ... does not cause a ‘non-Guideline sentence’ and thus no procedural error occurs.” The Government cites no pertinent § 5G1.3 authority for this proposition and we have found none. At best the Government’s argument is disingenuous, as evidenced by the position it took on § 5G1.3’s application before the district court. In its supplemental sentencing memorandum, the Government acknowledged: “§ 5G1.3(b) applies and the court must take that into account in computing the applicable guideline range for [Defendant].” Rec. vol. 1, at 140 (emphasis added). The court too acknowledged at the preliminary sentencing" }, { "docid": "22115635", "title": "", "text": "sentences was therefore not a departure. Section 5G1.3 of the Guidelines divides cases in which defendants are, at the time of sentencing, subject to an existing undischarged term of imprisonment into three categories, providing for consecutive sentences for cases falling under § 5G1.3(a), concurrent sentences for cases falling under § 5G1.3(b), and concurrent, partially concurrent, or consecutive sentences for cases falling under § 5G1.3(c). See U.S.S.G. § 5G1.3. The imposition of consecutive sentences is thus a departure from the Guidelines only in cases that fall under § 5G1.3(b). See United States v. Kikuyama, 150 F.3d 1210, 1213 (9th Cir. 1998); cf. Williams, 291 F.3d at 1192. The present case falls under § 5G1.3(c), not § 5G1.3(b). Application Note 3(C) states that “[s]ubsection (c) applies in cases in which the defendant was on federal or state probation, parole, or supervised release at the time of the instant offense and has had such probation, parole, or supervised release revoked.” Id. § 5G1.3 cmt. n. 3(C). Fifield committed the federal offenses while he was serving a five-year period of probation. Because the conduct underlying the federal crimes violated the terms of his probation, the Montana court revoked his probation and sentenced him to the twenty-year term with twelve years suspended. Under application note 3(C), therefore, § 5G1.3(c) applies to Fifield’s case. Fifield contends that § 5G1.3(b) applies because his offense level was increased on the basis of one of his state convictions, but this contention is incorrect. Section 5G1.3(b) applies when subsection (a) does not apply, and a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments) .... U.S.S.G. § 5G1.3(b). Application note 2(B) clarifies that [sjubsection (b) does not apply in cases in which the prior offense increased the Chapter Two or Three offense level for the instant offense but was not relevant conduct to" }, { "docid": "18832666", "title": "", "text": "that the guidelines required that his federal sentence run concurrently with his state sentences. Since he failed to object to the consecutive sentence at the time, our review is limited to plain error. We agree that under the Olano test already discussed, Bartlett must be re-sentenced. Because we are satisfied that the requisites for plain error review are present, we do not reach Bartlett’s contention — raised for the first time on appeal — that his trial counsel’s failure to object to the consecutive sentence violated the Sixth Amendment. In this case, after the district court determined the guideline range for the conspiracy charge, it then considered whether to make the federal sentence consecutive or concurrent to the state sentences. The court found that although Bartlett had been allowed to plead guilty to second degree murder, the conduct underlying both convictions would have supported convictions for first degree murder. Concluding that under Massachusetts law Bartlett would be eligible for parole in 16 years and would probably not be held past that date, the court concluded the federal sentence should run consecutively rather than concurrently. The governing statute confers broad authority on the district court to determine whether a sentence is consecutive or concurrent. See 18 U.S.C. §§ 3553(a), 3584(a), (b). That discretion, however, is confined by guideline provisions that govern this choice where sentence is imposed on a defendant who is “subject to an undischarged term of imprisonment.” U.S.S.G. § 5G1.3. See United States v. Flowers, 995 F.2d 315, 316-17 (1st Cir.1993). The guideline applicable here provides that — with two exceptions not now relevant — “the sentence for the instant offense shall be imposed to run consecutively to the prior unexpired term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant offense.” U.S.S.G. § 5G1.3(c). The commentary then provides that to the extent practicable the court should determine the “reasonable incremental punishment” by determining a sentence “that results in a combined sentence that approximates the total punishment that would have been imposed under § 5G1.2 (Sentencing on Multiple Counts of Conviction) had all" }, { "docid": "20253986", "title": "", "text": "court’s decision to impose a consecutive sentence is similarly reviewed for reasonableness. See United States v. Shafer, 438 F.3d 1225, 1227 (8th Cir.2006). After reviewing the record, we can discern no procedural error in the court’s imposition of a 235-month sentence. The district court properly calculated Lomeli’s offense level and criminal history and correctly determined Lomeli’s advisory Guidelines sentencing range. The court then considered the 18 U.S.C. § 3553(a) factors in arriving at the sentence it deemed appropriate, and adequately explained its reasons for sentencing Lomeli at the top of the advisory Guidelines range, citing the seriousness of Lomeli’s past criminal conduct, the fact that this was his second drug-related conviction, and the fact that he is a violent and threatening person. As we explained above, it was not error for the court to consider Lomeli’s criminal history as this did not violate the U.S.-Mexico Extradition Treaty. We next turn to the question of whether the district court committed procedural error in ordering Lomeli’s sentence to run consecutively to the undischarged portion of his Texas murder sentence. In his brief, Lomeli makes passing reference to an abuse of discretion by the district court. We interpret this statement as an argument that the district court failed to consider the § 3553(a) factors and to be cognizant of the elements listed in section 5G1.3 of the Guidelines. Because this argument was raised for the first time on appeal, we review for plain error. See, e.g., United States v. Starfield, 563 F.3d 673, 674 (8th Cir.2009); United States v. Phelps, 536 F.3d 862, 865 (8th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 1390, 173 L.Ed.2d 641 (2009). “Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights.” Phelps, 536 F.3d at 865. If a defendant makes that showing, “an appellate court may exercise its discretion to correct a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997))." }, { "docid": "21449277", "title": "", "text": "purpose of punishing recidivism. See Martino, 294 F.3d at 351. Indeed, if the rule advocated by Lino were adopted, we would “insulate the very career criminals the [enhancement] is designed to reach— those continuously engaged in criminal conduct.” Martinez-Medina, 279 F.3d at 123. This we are quite unwilling to do. Next, Lino contends that the district court erred in declining to credit him with time he had already served on his undischarged sentence for his Massachusetts drug conviction under U.S.S.G. § 5G1.3(b). Section 5G1.3(b) of the November 2003 Guidelines (the version under which Lino was sentenced) provides: If ... a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction ... and ... was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments), the sentence for the instant offense shall be imposed as follows: the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determined that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons. Thus, § 5G1.3(b) provides for an adjustment in sentence only where the undischarged sentence was (1) for a crime that constitutes relevant conduct for the instant offense and (2) was the basis for an increase in the offense level for the instant offense under Chapters Two or Three of the Guidelines. United States v. Lozano, 486 F.3d 446, 448-49 (8th Cir.2007) (stating that both conditions must be met to trigger an adjustment under § 5G1.3(b)(1)). The second precondition is not met here. An adjustment under § 5G1.3(b) is not triggered “by the mere fact [that] the federal conspiracy charged encompassed a time period during which the state offense occurred,” where the state offense had no effect on the defendant’s offense level for the federal conviction. United States v. Hurley, 439 F.3d 955, 957 (8th Cir.2006). Lino concedes that “the crime for which [he] was serving a state sentence [did] not result in an increase to" }, { "docid": "14879133", "title": "", "text": "them in deciding the drug quantity attributable to Jones, and thus, the district court did not commit clear error in determining drug quantity. Jones next argues the district court committed error in failing to give him credit for the time he served on an undischarged state term of incarceration under § 5G1.3(b) of the U.S. Sentencing Guidelines Manual (U.S.S.G.). Subsection 5G1.3(a) of the Sentencing Guidelines provides, “If the instant offense was committed while the defendant was serving a term of imprisonment ... the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment.” This subsection applies when a defendant commits the current offense while on parole for another offense. See United States v. Murphy, 69 F.3d 237, 245 (8th Cir.1995). Subsection 5G1.3(b) provides, “If subsection (a) does not apply, and the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment .” As Jones concedes, he did not raise his § 5G1.3(b) argument in the district court, so he must show plain error to prevail. See United States v. Glasener, 981 F.2d 973, 975 (8th Cir.1992). Jones has not done so. See id. at 974-76. Jones incurred the state drug conviction from a one-sale incident in the midst of the federal conspiracy charged in this case. After his release from state prison in 1995, Jones resumed drug activity with his coconspira-tors while on parole in a halfway house. In 1997 state authorities received a report that Jones was violating his parole by incurring a new felony offense — the current federal drug conspiracy — and a parole violator’s warrant was issued for Jones’s arrest. Because Jones committed part of the federal conspiracy offense while on parole for the state offense, § 5G1.3(a) applies, and § 5G1.3(b) does not. See Murphy, 69 F.3d at 245. We thus conclude the district court did not commit error, much less plain error, in failing" }, { "docid": "3216282", "title": "", "text": "Eighth Amendment’s prohibition against cruel and unusual punishment. We affirm. Section 5G1.3 of the Guidelines addresses whether a federal sentence should be made concurrent with or consecutive to an undischarged prison term. Subsection (a) prescribes when the federal sentence “shall be imposed to run consecutively.” Subsection (b) prescribes when the federal sentence must be concurrent. Subsection (c) provides that “[i]n any other case ... the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively.” Atteberry first argues that the district court erred in imposing a consecutive sentence because a concurrent sentence was mandated by U.S.S.G. § 5G1.3(b), which applies if “a term of imprisonment resulted from another offense that is relevant conduct to the instant offense ... and that was the basis for an increase in the offense level for the instant offense.” This contention was not made in the district court and therefore we review it for plain error. Atteberry concedes that his state court conviction for attempted sexual abuse was not relevant conduct to his federal offense. But he argues that his state court conviction for pornography possession was relevant conduct because it was based, at least in part, on writings printed out from the computer and floppy disks seized in the warrant search and essential to his federal conviction. We need not consider the relevant conduct issue because, even if that part of his state offense was relevant conduct, it was not the basis for an increase in the offense level used to determine Atteberry’s guidelines range sentence. He received enhancements for images of prepubescent minors, pornography distribution, images portraying sadistic or masochistic conduct, use of a computer, and 300 or more images. See U.S.S.G. §§ 2G2.2(b)(l), (2)(E), (3), (5), (6)(C). Thus, his offense level “was increased because of the defendant’s conduct in the commission of the federal offense and not for his conduct in the state offenses.” United States v. Terry, 305 F.3d 818, 826 (8th Cir.2002), citing United States v. Tisdale, 248 F.3d 964, 976-77 (10th Cir.2001). There was no plain error. Atteberry next argues that the district court" }, { "docid": "22115655", "title": "", "text": "must still determine whether it has departed from the Guidelines and concluding that \"after Booker, the district court still is ‘required to articulate the reasons for the extent of the departure in sufficiently specific language to allow appellate review’ ” (internal quotation marks omitted)). . Section 5G1.3 provides, in full: (a) If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) or after sentencing for, but before commencing service of, such term of imprisonment, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment. (b) If subsection (a) does not apply, and a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments), the sentence for the instant offense shall be imposed as follows: (1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and (2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment. (c)(Policy Statement) In any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense. U.S.S.G. § 5G1.3. . At oral argument, Fifield’s counsel stated that § 5G1.3 was amended in 2004 and that the current version of § 5G1.3 is different from the 2003 version. This statement is incorrect. See U.S.S.G. § 5G1.3 hist. n. (2005) (noting that the most recent amendment to § 5G1.3 became effective November 1, 2003). It may be that Fifield’s" }, { "docid": "7918088", "title": "", "text": "this issue before the district court. While Rouse’s counsel did inquire of the court whether the federal sentence would be served concurrently or consecutively to the . state sentence, he neither cited § 5G1.3(b) nor argued that the court was required to impose a concurrent sentence. Therefore, our review is for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish plain error, Rouse must show that an error occurred, that the error was plain, and that the error affected his substantial rights. See Olano, 507 U.S. at 732, 113 S.Ct. 1770. Even if Rouse makes this three-part showing, correction of the error remains within our discretion, which we “should not exercise ... unless the error ‘seriously affeet[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (alteration in original)). A. Before turning to the application of the plain error standard, we pause for a housekeeping matter. Effective November 1, 2003, § 5G1.3 and the accompanying commentary were amended. As amended, § 5G1.3(b) provides as follows: If subsection (a) does not apply, and a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction ... and that was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments), the sentence for the instant offense shall be imposed as follows: (1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and (2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment. U.S.S.G. § 5G1.3(b) (2003), available at http://www.ussc.gov/2003guid/5gl_3.htm. Clarifying amendments are relevant in our construction of previous versions of the guidelines. See United States v. Butner, 277 F.3d" }, { "docid": "23521391", "title": "", "text": "defendant was on bail or other release status from another offense.” U.S.S.G. § 5G1.3(c), comment, (n. 4). If so, “a reasonable incremental penalty appropriately would include an additional enhancement equivalent to that provided in § 2J1.7 (Commission of Offense While on Release).” Id. The government argues that this note applies because Gullickson committed the federal offense while on probation for the state forgery offense and that probation constitutes “release status.” The three-level increase would raise Gul-lickson’s sentencing range to 168 to 210 months, and the combined 199-month sentence imposed by the district court would fall within this range. We reject this argument. Section 2J1.7 provides for a three-level increase to an offense level, “[i]f an enhancement under 18 U.S.C. § 3147 applies.” The statute mandates an enhanced sentence for “[a] person convicted of an offense committed while released under this chapter....” 18 U.S.C. § 3147. The chapter in which section 3147 appears is Chapter 207 of Title 18, which governs release of defendants pending trial, sentencing, or appeal. See 18 U.S.C. §§ 3141-3143. Gullickson’s status as a probationer does not fall within any of these categories. We therefore conclude that Gullickson was not on release status when he committed the federal crime, and he is not subject to the section 2J1.7 increase. The government next contends that 18 U.S.C. § 3584(a) authorized the district court to order the federal sentence to run consecutively to the unexpired state sentences notwithstanding U.S.S.G. § 5G1.3(c). The plain language of section 3584(a), read in isolation, appears to support this argument because it grants district courts discretion to order either consecutive or concurrent sentences when sentencing a defendant already subject to an unexpired term of imprisonment. Section 3584(a), however, does not exist in a vacuum. Section 3584(b) places limits on this discretion by providing that “[t]he court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider ... the factors set forth in section 3553(a).” Section 3553(a)(4) states that courts must consider “the kinds of sentences and the sentencing range ... set forth in the guidelines that are" }, { "docid": "22598972", "title": "", "text": "marijuana and corresponding revocation of probation and three history points for his conviction for possession of crack cocaine. 3. The District Court Erred When It Denied Knight’s Request To Credit the Time Knight Had Served in State Custody. The district court erred when it did not reduce Knight’s sentence for the time Knight served in state custody for obstruction of justice. The Guidelines instruct that where a defendant has a prior offense that is relevant to the instant offense and resulted in an increase in the offense level of the instant offense, the district court should (1) “adjust the [instant] sentence for any period of imprisonment already served on the undischarged term of imprisonment [for the prior offense] if the court determines that such period of imprisonment will not be credited ... by the Bureau of Prisons”; and (2) order that the instant sentence run concurrently with the sentence for the prior offense. U.S.S.G. § 5G1.3(b). The Bureau of Prisons will not credit Knight’s time served in state custody under the statute that governs the Bureau: Credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences — (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence. 18 U.S.C. § 3585(b). The United States concedes that the district court should have given Knight credit for the time served in state custody based on his conviction for obstruction of justice. The conduct related to the state conviction was used to enhance Knight’s federal sentence, but Knight’s time served in state custody will not be credited by the Bureau of Prisons toward Knight’s federal sentence. We vacate Knight’s sentence and remand with instructions that the district court adjust Knight’s sentence for time served in state custody for his conviction" }, { "docid": "23646859", "title": "", "text": "... most of his life,” that John Jr. had “made strides” in changing his life, and that the formal Guidelines calculation double-counted some of the underlying offenses, resulting in an “artificially high” Guidelines range. We do not doubt that the trial court recognized its discretion to take John Jr.’s prior conviction and imprisonment into account; the court simply did not agree with defendant that his previous incarceration for a crime to which he pled guilty should lead to a sentence reduction. To the extent that John Jr. argues that the district court committed a Guidelines error by not taking into account a possible downward departure under U.S.S.G. §§ 5G1.3 and 5K2.23, he did not present that argument to the trial court. We thus review the sentence on this ground for plain error only. United States v. Goodhue, 486 F.3d 52, 57 (1st Cir.2007); United States v. Wallace, 461 F.3d 15, 35 & n. 11 (1st Cir.2006). We pass over the questions of which Guidelines apply (the trial court applied the 1995 Guidelines, in effect at the time of the offense conduct) and whether, if the 1995 Guidelines do apply, the later amendments relevant here were retroactive. Even taking these questions in defendant’s favor, John Jr.’s argument does not survive the plain terms of § 5G1.3. Under the current Guidelines, § 5G1.3(b) provides for an adjustment of the sentence to account for an undischarged term of imprisonment that “resulted from another offense that is relevant conduct to the instant offense of conviction ... and that was the basis for an increase in the offense level for the instant offense.” Id. (emphasis added). Application note 4, which cross-references and uses the same language as § 5K2.23, approves the use of a downward departure when the prior term of imprisonment has been fully discharged, as long as the other requirements of § 5G1.3(b) are met. Neither section is applicable here, then, as the offense underlying racketeering act 13 was not taken into account in the Guidelines calculation; much less was it a “basis for an increase in the offense level” in this case." }, { "docid": "4070047", "title": "", "text": "you must find by the greater weight of the evidence that [Young] committed one or both of the Minnesota robberies. If you do not so find by the greater weight of the evidence, then you must disregard such evidence in its entirety.” We conclude that the district court did not abuse its discretion in admitting the evidence for the limited purpose set forth in its instruction. B. Significant Procedural Error Young concedes that the district court correctly calculated the advisory sentencing range, but he argues that the district court procedurally erred when it failed to recognize a preference in the Guidelines for concurrent sentencing and failed to adequately explain its reasons for imposing a mostly consecutive sentence. We review the imposition of sentences by applying an abuse-of-discretion standard. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc). We first ensure that the district court did not commit a significant procedural error. Id. The district court properly rejected Young’s assertion that there is a preference for sentences to run concurrently to undischarged sentences in the Guidelines. Young argues that § 5G1.3(b) “indicates a clear policy preference toward consideration of concurrent or partially concurrent sentences when certain crimes are inextricably intertwined.” Appellant’s Br. 18. Section 5G1.3(b) instructs the district court to give credit “for time served and that sentences should run concurrently when a defendant is subject to a prior, undischarged sentence.” United States v. Becker, 636 F.3d 402, 407 (8th Cir.2011). However, it applies only “where a defendant is subject to an undischarged term of imprisonment for another offense that is ‘relevant conduct to the instant offense of conviction ... and that was the basis for an increase in the offense level for the instant offense.’ ” Id. (quoting Guidelines § 5G1.3(b)). Young’s West Virginia offense occurred almost one year after the South Dakota robberies and was not considered relevant conduct by the district court. Accordingly, § 5G1.3(b) does not apply to Young’s undischarged West Virginia sentence. Instead, § 5G1.3(c) applies and instructs the district court to order the sentence “to run concurrently, partially concurrently, or consecutively to" }, { "docid": "20253987", "title": "", "text": "murder sentence. In his brief, Lomeli makes passing reference to an abuse of discretion by the district court. We interpret this statement as an argument that the district court failed to consider the § 3553(a) factors and to be cognizant of the elements listed in section 5G1.3 of the Guidelines. Because this argument was raised for the first time on appeal, we review for plain error. See, e.g., United States v. Starfield, 563 F.3d 673, 674 (8th Cir.2009); United States v. Phelps, 536 F.3d 862, 865 (8th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 1390, 173 L.Ed.2d 641 (2009). “Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights.” Phelps, 536 F.3d at 865. If a defendant makes that showing, “an appellate court may exercise its discretion to correct a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). Consecutive sentences are specifically contemplated by the Sentencing Guidelines, which provide that, in cases where the defendant is subject to an undischarged term of imprisonment, “the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the pri- or undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” United States Sentencing Commission, Guidelines Manual, § 5G1.3(c) (Nov.1995) ; see also 18 U.S.C. § 3584(a) (authorizing a court to impose concurrent or consecutive sentences absent exceptions that do not apply here and stating that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently”). In determining whether to impose a concurrent or consecutive sentence, the Guidelines direct the sentencing court to: consider the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)) and be cognizant of: (a) the type {e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence; (b) the time served on the undischarged sentence and the time likely" }, { "docid": "11721711", "title": "", "text": "into account in the determination of the offense level for the instant offense. See U.S.S.G. § 5G1.3(b). Thus, in Brewer’s case, subsection (b) should be applied only if the conduct underlying the Iowa Theft offense was fully taken into account in determining Brewer's offense level of 12. The district court not only stated it was not taking such conduct into account, but it explained its reasoning. Tr. at 184-87. , Moreover, at oral argument, Brewer recognized the district court's finding that “the Pat Chambers matter is [not] relevant conduct for purposes of this particular proceeding,” id. at 207. We find no error in the district court's findings, and, accordingly, we find no error in the district court’s refusal to apply subsection (b). .The government contends that Brewer has not preserved this issue for appeal. We disagree. See Tr. at 241-42. Even if Brewer had not raised the issue at the sentencing hearing, we could review for plain error if Brewer's substantial rights were affected. See Fritz v. United States, 995 F.2d 136, 137 (8th Cir.1993) (sentencing may be reviewed under plain error standard if error is outside the guideline range, caused by a sentence resulting in a violation of law, or derived from an incorrect application of the Sentencing Guidelines), cert. denied, - U.S. -, 114 S.Ct. 887, 127 L.Ed.2d 81 (1994); see also 18 U.S.C. § 3742(a) (1988). . Subsection (c) states in relevant part: (c) (Policy Statement) In any other case, the sentence for the instant offense shall be imposed to run consecutively to the prior undischarged term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant offense. U.S.S.G. § 5G1.3(c), p.s. (1992). . The district court stated: All right. Well, this is — these 5G1.3(c) issues are very difficult to resolve, and because you're just really trying to figure out and make what is hopefully an educated guess as to what's going to happen in the state system as to his likely release date, actual release date as opposed to mandatory release date under the State of Iowa's indeterminate sentencing, and" } ]

[ { "docid": "15933170", "title": "", "text": "Queensborough was sentenced contemplates upward departures based on extreme conduct because the application notes state that such a departure may be appropriate “[i]f a victim was sexually abused by more than one participant.” U.S.S.G. § 2A3.1, Application Note 5. The guideline does not state, and Queensbor-ough has not suggested, that abuse by more than one participant is the only basis for an extreme conduct departure. Here, given the patently degrading nature of the order that the two victims have sex, the District Court could properly have concluded that Queensborough’s conduct was extreme to a degree not adequately taken into account by the guidelines. See Lewis, 115 F.3d at 1538-39. 3. The Extent of the Departure Finally, Queensborough argues that even if an upward departure was permissible the District Court abused its discretion by ordering an excessive departure equivalent to an increase of five or six levels. He contends that even if he “had inflicted permanent or life-threatening bodily injury, the increase in his offense level would have been only four levels.” Appellant’s Br. at 28 (citing U.S.S.G. § 2A3.1(b)(4)). He relies on our statement that “analogy to the guidelines is also a useful and appropriate tool for determining what offense level a defendant’s conduct most closely approximates.” Kikumura, 918 F.2d at 1112. However, “[a]t this stage, the question is no longer whether the district court has substituted its judgment for that of the Sentencing Commission, but whether the court of appeals should substitute its judgment for that of the district court.” Id. at 1110. Our dissenting colleague, who agrees that an upward departure was appropriate, nonetheless would remand because he be lieves that the District Court gave “no clue as to why it decided that a five-level departure was warranted,” dissenting op. at 167, and that “the reasonableness of the degree of departure in this case is not apparent from the record.” Dissenting op. at 168. He would follow the process that we used in United States v. Jacobs, 167 F.3d 792 (3d Cir.1999). Unlike our colleague, we believe that both the justification for an upward departure of the extent" } ]

[ { "docid": "22293794", "title": "", "text": "counts 10 and 13, two substantive importation offenses, today have been affirmed. Well settled is the principle that a party to a continuing conspiracy may be responsible for a substantive offense committed by a co-conspirator in furtherance of the conspiracy, even though that party does not participate in the substantive offense or have any knowledge of it. Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Once the conspiracy and a particular defendant’s knowing participation in it has been established beyond a reasonable doubt, the defendant is deemed guilty of substantive acts committed in furtherance of the conspiracy by any of his criminal partners. United States v. Sullivan, 578 F.2d 121, 122-23 (5th Cir. 1978). This principle has been repeatedly applied by this circuit in cases involving drug conspiracies and substantive drug violations. E. g., United States v. Sullivan, supra; United States v. Decker, 543 F.2d 1102, 1103-04 (5th Cir. 1976), cert. denied sub nom. Vice v. United States, 431 U.S. 906, 97 S.Ct. 1700, 52 L.Ed.2d 390 (1977); United States v. Apollo, 476 F.2d 156, 162 (5th Cir. 1973). It should be no less strictly applied to hold the organizer or supervisor of a criminal enterprise responsible for the acts of his co-conspirators done in furtherance of the operation he manages. The Pinkerton vicarious-liability rationale is based upon an agreement or common purpose shared by co-conspirators; they are partners in crime, and the act of one in furtherance of the unlawful plan is the act of all. Pinkerton v. United States, 328 U.S. at 646-47, 66 S.Ct. 1180. This element is also present in the offense set out in 21 U.S.C. § 848 — conducting a continuing criminal enterprise — of which Belmares was convicted. The statute requires that a defendant must act “in concert” with five or more persons. The Supreme Court and this court have interpreted this to encompass the agreement required to prove a conspiracy. Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); see United States v. Johnson, 575 F.2d 1347 (5th Cir. 1978)." }, { "docid": "23520493", "title": "", "text": "the anti-tax beliefs of KIY members, or the association between the Donatos and McKee, either within RIY or in the Partnership itself. Based on the evidence we have already discussed, the participation element is also satisfied for both Joseph and Inge Donato. See Sleight v. United States, 82 F.2d 459 (D.C.Cir.1936) (a partner is liable for the criminal acts of a co-partner if he possesses guilty knowledge of the criminal act of his co-partner or is an accessory thereto either before or after the fact) (emphasis added); see also United States v. Ward, 168 F.2d 226, 229 (3d Cir.1948) (same). c. Overt Act Proof of a Klein conspiracy also requires proof of at least one overt act in furtherance of the charged conspiracy. An overt act is any act performed by any conspirator for the purpose of accomplishing the objectives of the conspiracy. See United States v. Falcone, 311 U.S. 205, 207, 61 S.Ct. 204, 85 L.Ed. 128 (1940) (“[T]he gist of the offense of conspiracy ... is agreement among the conspirators to commit an offense attended by an act of one or more of the conspirators to effect the object of the conspiracy”). The government’s evidence of an overt act focused on Inge Donato’s role in the preparation and filing of the payroll taxes. “The Supreme Court [has] held that the criminal act of one conspirator in furtherance of the conspiracy is attributable to the other conspirators for the purpose of holding them responsible for the substantive offense.” United States v. Lopez, 271 F.3d 472, 480 (3d Cir.2001) (citing Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946)). (quotations and original brackets omitted); see also United States v. Guadalupe, 979 F.2d 790, 793 (10th Cir.1992) (Under 18 U.S.C. § 371, a conviction for conspiracy requires that the government prove beyond a reasonable doubt that the defendants agreed to defraud the United States and that one of the conspirators committed an overt act in furtherance of the conspiracy.). However, an overt act of one conspirator is the act of all, even absent proof of" }, { "docid": "20930728", "title": "", "text": "on Pinkerton v. United States, 328 U.S. 640, at page 647, 66 S.Ct. 1180, at page 1184, 90 L.Ed. 1489 (1946), where the Court said: “ * * * so long as the partnership in crihie continues, the partners act for each other in carrying it forward. * * * The governing principle is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project. Johnson v. United States, 9 Cir., 62 F.2d 32, 34. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy under § 37 of the Criminal Code, 18 U.S.C.A. § 88 [7 F.C.A. title 18, § 88]. If that can be supplied by the act of one conspirator, we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense.” However, the Supreme Court immediately went on to speak of elements in the absence of which guilt for the substantive crime could not attach to all conspirators: “A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement.” Id., 328 U.S. at 647, 648, 66 S.Ct. at 1184. The court, in the present" }, { "docid": "22240413", "title": "", "text": "by a judge — instead of an element of the offense to be determined by a jury.” United States v. Bloom, 945 F.2d 14, 17 (2d Cir.1991). The District Court did not err in finding by a preponderance of the evidence that the conspiracy extended beyond November 1, 1987. Gabe also argues that he should not have been sentenced under the Guidelines because he played a “minimal role” in the conspiracy. The extent of Gabe’s role, while relevant in determining the appropriate length of his sentence within the Guidelines, see U.S.S.G. § 3B1.2 (Guideline adjustments for mitigating role in the offense), has no bearing on the threshold question of whether the Guidelines should apply to his conspiracy conviction. Napoli argues that application of the Guidelines to his conviction violates ex post facto principles because he “did nothing after November 1, 1987 and did not plan anything which ultimately transpired after that date.” Brief for Appellant Napoli at 140. The Court may find a continuation of conspiratorial liability even though the particular defendant has ceased to engage in overt conduct relating to the conspiracy prior to November 1, 1987, if it was foreseeable that the conspiracy would continue past that date. See, e.g., United States v. Devine, 934 F.2d 1325, 1332 (5th Cir.), cert. denied, — U.S. -, 112 S.Ct. 349, 116 L.Ed.2d 288 (1991). This holding derives from the basic principle that conspirators are generally held liable for the known or reasonably foreseeable acts of all other co-conspirators committed in furtherance of the conspiracy. See Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946). Contrary to Napoli’s contention, the acts of co-conspirators occurring after November 1, 1987, may be attributable to a defendant for purposes of the application of the Sentencing Guidelines in the absence of evidence that the defendant somehow “caused” those acts. See United States v. Rosa, 891 F.2d 1063, 1068-69 (3d Cir.1989) (applying Guidelines to co-conspirator who did nothing to further the conspiracy after 1986 in the absence of any proof that he affirmatively renounced the conspiracy pri- or to" }, { "docid": "11883304", "title": "", "text": "that opinion supports his position. He points, for example, to our observation in Pruitt that “[w]hile a person who participates in a drug conspiracy does not necessarily agree to a specific amount in advance, no defendant may be held responsible for acts beyond the scope of his or her participation in the conspiracy.” Id. at 644-45 (citing United States v. Myers, 102 F.3d 227, 237 (6th Cir.1996) (citing in turn Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946))). “[T]his rule,” we explained, “provides adequate protection against the possibility that a less culpable, ‘small-time’ seller of drugs will be caught up in the sweep of § 841(b) due to the acts of coconspirators.” Id. at 645, 66 S.Ct. 1180. We also observed that “the district court included only amounts for which [the appellant] was directly responsible, rather than imputing to him the acts of other defendants, despite conviction on the conspiracy count.” Id. These statements do not help Robinson as much as he would like. Again, the issue in Pruitt was whether a conspiracy comprising multiple transactions was a single violation of 21 U.S.C. § 841(a). The issue was not whether the appellant was culpable for acts of his co-conspirators, and any pronouncements on that topic are dicta. Moreover, that portion of Pruitt turned on an analysis of Pinkerton. Although our Pinkerton analysis was correct, it is inapplicable here. See United States v. Collins, 415 F.3d 304, 313 (4th Cir.2005) (“The principles outlined in Pinkerton ... have no applicability to a conviction under § 846. Pinkerton principles are relevant when a conspirator is charged with a substantive offense arising from the actions of a co-conspirator, not when a conspirator is charged with conspiracy.”). It is true that a conspirator is liable for the substantive offenses of his co-conspirators only if those offenses are, among other things, reasonably foreseeable to him. Pinkerton, 328 U.S. at 647-48, 66 S.Ct. 1180. But this principle is distinct from the equally established rule that conspiracy is an inchoate offense that needs no substantive offense for its completion. Iannelli v." }, { "docid": "17857819", "title": "", "text": "and counselled or advised the commission of the offense. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). With respect to the conspiracy theory Justice Douglas remarked: when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project .. . [t]he criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy under § 37 of the Criminal Code, 18 U.S.C. § 88. If that can be supplied by the act of one conspirator, we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense. 328 U.S. at 647, 66 S.Ct. at 1184. Pinkerton thus holds that a conspirator can be found guilty of a substantive offense based upon acts of his coconspirator so long as the act was done in furtherance of the conspiracy, was within the scope of the unlawful project, and could be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. United States v. Moreno, 588 F.2d 490, 493 (5th Cir. 1979), cert. denied, 441 U.S. 936, 99 S.Ct. 2061, 60 L.Ed.2d 666 (1979), is to the same effect. Once the conspiracy and the defendant’s knowing participation in it have been established beyond a reasonable doubt, the defendant will be vicariously liable for the substantive acts committed in furtherance of the conspiracy by his coconspirators. United States v. Michel, 588 F.2d 986, 999 (5th Cir. 1979), cert. denied, 444 U.S." }, { "docid": "9830442", "title": "", "text": "United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the Supreme Court held that a. co-conspirator may be vicariously liable for the substantive offense committed by coconspirator if the act is done “in furtherance of the conspiracy” and is “reasonably foreseen as a necessary or natural consequence of the unlawful agreement.” Id. at 647-48, 66 S.Ct. 1180; United States v. Myers, 102 F.3d 227, 237 (6th Cir.1996); see also Paul Marcus, Criminal Conspiracy Law: Time To Turn Back From An Ever Expanding Ever More Troubling Area, 1 Wm. & Mary Bill Rts. J. 1, 7 (1992) (observing that the Pinkerton theory-is one of imput ed causation; “it permits the government to hold a defendant criminally liable for all reasonably foreseeable acts of co-conspirators regardless of actual knowledge, intent, or participation”). Thus, if the Government is correct, all of the Defendants would be liable for Phillips’ death because it is reasonably foreseeable that someone will die after using heroin distributed by the conspiracy. The Government’s argument ignores the Sentencing Guideline’s treatment of conspiracy. U.S.S.G. § lB1.3(a)(l)(B) (“Relevant Conduct (Factors that Determine the Guideline Range”))' provides that the base offense level shall be determined by considering the following: [I]n the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction. U.S.S.G. § lB1.3(a)(l)(B). Application Note 2 provides in relevant part: In the case of a jointly undertaken criminal activity, subsection (a)(1)(B) provides that a defendant is accountable for the conduct (actg and omissions) of others that was both: (i) in furtherance of the jointly undertaken criminal' activity; and (ii) reasonably foreseeable in connection with that criminal activity. Because a count may be worded broadly and include the conduct of many participants over a period of time, the scope of the 'criminal activity jointly undertaken by the defendant (the “jointly undertaken criminal activity”) is not" }, { "docid": "22107956", "title": "", "text": "... hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings ... shall be fined under this title or imprisoned not more than ten years, or both. 18 U.S.C. § 1512(b)(3). . In Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the Supreme Court reviewed the law of conspiracy as it related to the liability of one conspirator for the substantive acts of another conspirator. The Court concluded that acts in furtherance of the conspiracy are \"attributable to the others for the purpose of holding them responsible for the substantive offense.” Id. at 647, 66 S.Ct. 1180. The Court went on to note that a \"different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement.” Id. at 647-48, 66 S.Ct. 1180. Thus, in addition to the requirement that acts be done in furtherance of the conspiracy, to be attributable to another conspirator, the acts must be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. . In Apprendi, the Supreme Court held that, \"[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Applying the Apprendi holding in Promise, we held that “Apprendi dictates that in order to authorize the imposition of a sentence exceeding the maximum allowable without a jury finding of a specific threshold drug quantity, the specific threshold quantity must be treated as an element of an aggravated drug trafficking offense, i.e., charged" }, { "docid": "489378", "title": "", "text": "shown to have specific knowledge of these two checks. On these facts I believe the jury had the right to view Barnes as a fully authorized agent of defendants Washer and Carney in cashing the two checks and to find that all three had knowingly engaged in a conspiracy (See 18 U.S.C. § 371) to violate the Interstate Travel Act. Barnes’ illegal acts in cashing the two interstate checks were wholly natural and foreseeable acts which defendants Washer and Carney were bound to anticipate under the circumstances which they had joined in creating. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). In Pinkerton the Court said: “It is settled that ‘an overt act of one partner may be the act of all without any new agreement specifically directed to that act.’ United States v. Kissel, 218 U.S. 601, 608, 31 S.Ct. 124, 126, 54 L.Ed. 1168. Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. Wiborg v. United States, 163 U.S. 632, 657-658, 16 S.Ct. 1127, 1197, 41 L.Ed. 289.” Pinkerton v. United States, 328 U.S. 640, 646-647, 66 S.Ct. 1180, 1184 (1946). In Blumenthal v. United States, the United States Supreme Court said concerning the evidence required to support a conspiracy conviction: “Secrecy and concealment are essential features of successful conspiracy. The more completely they are achieved, the more successful the crime. Hence the law rightly gives room for allowing the conviction of those discovered upon showing sufficiently the essential nature of the plan and their connections with it, without requiring evidence of knowledge of all its details or of the participation of others. Otherwise the difficulties, not only of discovery, but of certainty in proof and of correlating proof with pleading would become insuperable, and conspirators would go free by their very ingenuity.” Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947) (Footnote omitted)." }, { "docid": "17471904", "title": "", "text": "905 F.2d 599, 602 (2d Cir.1990), the sentencing court should select the same level “as if the object of the conspiracy ... had been completed.” U.S.S.G. § 2D1.4(a). Cardenas argues that the 60 kilograms found in the van should not be counted because he did not know the transaction involved that quantity of cocaine. He relies upon application of note 1 to § 2D1.4 that reads in pertinent part: “If the defendant is convicted of conspiracy, the sentence should be imposed only on the basis of the defendant’s conduct or the conduct of co-conspirators in furtherance of the conspiracy that was known to the defendant or was reasonably foreseeable.” Defendant’s assertion is grounded on an improper understanding of the guidelines. The cited application note simply reflects the common law principle first articulated in Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946), that a conspirator may only be held liable for the substantive crimes of his co-conspirators if they were done in furtherance of the conspiracy and were known or reasonably foreseeable to him. The Sentencing Commission sought through this commentary to protect, for example, a narcotics conspirator from being sentenced for an unplanned bank robbery committed by his co-conspirators that was not reasonably foreseeable by him. Such is not the present case. Cardenas was sentenced based upon his own conduct, not upon the conduct of others. Here the district court found that — during the period at issue— Cardenas himself knew he was acting in furtherance of a conspiracy to distribute cocaine regardless of his knowledge of the amount. Cardenas makes the additional argument that the court improperly considered the full 60 kilograms based upon the following Statement in application note 1 of § 2D 1.4: “If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount.” Defendant contends that this case involved negotiation “to traffic” in cocaine because it involved “the passing of goods from one person to another,” United" }, { "docid": "9764147", "title": "", "text": "cmt. (n.2). Thus, a drug dealer who engages in criminal activity with others to further their collective interests may be held liable for the quantities of drugs sold by his partners, if those sales were a reasonably foreseeable consequence of the jointly undertaken actions. This type of liability, however, has its limit: mere knowledge of another’s ac tivity is not enough to show liability under U.S.S.G. § 1B1.3. Rather, “the central concept ... is foreseeability.” United States v. O’Campo, 973 F.2d 1015, 1023 (1st Cir.1992). The defendant is only responsible for foreseeable conduct within the scope of his own explicit or implicit agreement. See, e.g., United States v. Carrozza, 4 F.3d 70, 76 (1st Cir.1993)(“So as to keep the criminal responsibility within bounds, § 1B1.3 requires sentencing courts to ascertain on an individual basis the scope of the criminal activity that the particular defendant agreed jointly to undertake.”); United States v. Innamorati, 996 F.2d 456, 488-89 (1st Cir.1993)(“[E]ach member of a drug conspiracy may be held accountable at sentencing for a different quantity of narcotics, depending on the circumstances of each defendant’s involvement”). While a conspiracy charge may encompass all acts by co-conspirators in furtherance of the conspiracy, see Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), “relevant conduct” is limited to the foreseeable acts resulting from the defendant’s particular agreement. Thus, the scope of relevant conduct is “not necessarily the same as the scope of the entire conspiracy.” U.S.S.G. § 1B1.3, cmt. (n.2). The record shows that Laboy was a high-level gang member who fully participated in the LGD’s drug trade. He was one of the “heads” of the gang charged with overseeing gang activities designed to protect the LGD’s heroin operation. Through his leadership in the LGD he helped to keep other dealers out of LGD “turf,” ensuring that only he and his fellow LGD members would be able to deal heroin in the area. He stepped in to supply Flores’s customers when the LGD “Lord” was out of town. He had other LGD members sell drugs on his behalf. Indeed," }, { "docid": "9830441", "title": "", "text": "§ 841(a)(1). Thus, under § 846, Defendants are subject to the same penalties as a person who actually violates § 841. See United States v. O’Brien, 52 F.3d 277, 278 (9th Cir.1995); Irvin, 2 F.3d at 75; United States v. Montoya, 891 F.2d 1273, 1293 (7th Cir.1989). Section 841(b) prescribes the penalty for violations of § 841(a). The district court sentenced Johnny Isaacs under § 841(b)(1)(C). It provides that “if death or serious bodily injury results from the use of such substance” distributed in violation of § 841(a)(1), such person “shall be sentenced to a term of not less than twenty years or more than life.” 21 U.S.C.A. § 841(b)(1)(C) (West 1999). Further, U.S.S.G. § 2Dl.l(a)(2) assigns a base offense level of 38 “if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A), (b)(1)(B), or (b)(1)(C) ... [and] death or seriously bodily injury resulted from the use of the substance.... ” U.S.S.G. § 2D1.1(a)(2) (1998). The Government argues that under the Pinkerton doctrine all of the Defendants are responsible for Phillips’ death. In Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the Supreme Court held that a. co-conspirator may be vicariously liable for the substantive offense committed by coconspirator if the act is done “in furtherance of the conspiracy” and is “reasonably foreseen as a necessary or natural consequence of the unlawful agreement.” Id. at 647-48, 66 S.Ct. 1180; United States v. Myers, 102 F.3d 227, 237 (6th Cir.1996); see also Paul Marcus, Criminal Conspiracy Law: Time To Turn Back From An Ever Expanding Ever More Troubling Area, 1 Wm. & Mary Bill Rts. J. 1, 7 (1992) (observing that the Pinkerton theory-is one of imput ed causation; “it permits the government to hold a defendant criminally liable for all reasonably foreseeable acts of co-conspirators regardless of actual knowledge, intent, or participation”). Thus, if the Government is correct, all of the Defendants would be liable for Phillips’ death because it is reasonably foreseeable that someone will die after using heroin distributed by the conspiracy. The Government’s argument ignores the Sentencing Guideline’s treatment of conspiracy." }, { "docid": "3149983", "title": "", "text": "charged in Counts 2 through 13 in furtherance of and as a foreseeable consequence of that conspiracy, then you should find the defendant guilty of that offense as well. Jury Instructions, Instruction No. 9. Appellants assert that the court’s use of the word “should,” rather than “may,” in the last sentence of the above-quoted language was prejudicial error requiring reversal of their convictions. Specifically, Appellants argue that the instruction invaded the province of the jury and misstated the relevant law. Appellants further assert that, but for the erroneous Pinkerton instruction, both Pierces would not have been found guilty of each substantive offense. We disagree. The seminal case establishing the co-conspirator vicarious liability doctrine at issue in this appeal is Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). In Pinkerton, the Supreme Court held that the overt act of one member of a conspiracy is attributable to all other members of the conspiracy. Id. at 646, 66 S.Ct. 1180. This Court has held that Pinkerton co-conspirator liability is applicable where the government proves beyond a reasonable doubt the existence of a conspiracy, that the substantive offense was committed in furtherance of the conspiracy, and that the substantive offense was reasonably foreseeable as a natural “outgrowth of the conspiracy.” United States v. Navarrete-Barron, 192 F.3d 786, 792-793 (8th Cir.1999). Appellants argue that the pattern jury instructions of the Fifth, Ninth, Tenth and Eleventh Circuits, which use permissive language and instruct the jury that it “may” convict a defendant for the substantive acts of his/her coconspirator if the Pinkerton factors are proven, in contrast to the mandatory instruction given in this case, correctly apply the Pinkerton doctrine. While each of these Circuits has in fact approved of such permissive language, as has this Court, see e.g., United States v. DeLuna, 763 F.2d 897, 918 (8th Cir.1985) (overruled on other grounds), each has also approved instructions containing mandatory language similar to that used by the district court in this case. For instance, in United States v. Basey, 816 F.2d 980 (5th Cir.1987), the Fifth Circuit cited with approval" }, { "docid": "23520494", "title": "", "text": "offense attended by an act of one or more of the conspirators to effect the object of the conspiracy”). The government’s evidence of an overt act focused on Inge Donato’s role in the preparation and filing of the payroll taxes. “The Supreme Court [has] held that the criminal act of one conspirator in furtherance of the conspiracy is attributable to the other conspirators for the purpose of holding them responsible for the substantive offense.” United States v. Lopez, 271 F.3d 472, 480 (3d Cir.2001) (citing Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946)). (quotations and original brackets omitted); see also United States v. Guadalupe, 979 F.2d 790, 793 (10th Cir.1992) (Under 18 U.S.C. § 371, a conviction for conspiracy requires that the government prove beyond a reasonable doubt that the defendants agreed to defraud the United States and that one of the conspirators committed an overt act in furtherance of the conspiracy.). However, an overt act of one conspirator is the act of all, even absent proof of any agreement directed to that act. United States v. Walls, 225 F.3d 858, 864 (7th Cir.2000). Viewed against the backdrop of RIY’s tax animus, the Partnership’s failure to report income of its RIY member employees established the overt act of concealment. See Bellomo, 176 F.3d at 591-92. Accordingly, we reject Defendants’ challenge to the sufficiency of the evidence to prove the conspiracy charged in Count One. 3. Failure to File Individual Tax Returns a) Inge Donato Inge Donato challenges the sufficiency of the evidence to convict her for willful failure to file tax returns in 1997 and 1999, Counts 14 and 16. The district court granted Inge’s motion to dismiss Counts 15 and 17 because the government did not establish that she had income for those tax years. However, the court denied her motion on Counts 14 and 16 based on evidence of income in the form of proceeds of three Partnership checks that purchased two cars titled in her name, and a paint job on her home where she lived with Joseph. To sustain" }, { "docid": "23607995", "title": "", "text": "his involvement in the charged conspiracy was significantly less than that of his co-conspirators, and when queried on this point at oral argument, stated that he was involved only in a “conspiracy to work the table,” and that he simply did not participate in the more serious criminal activity of his co-conspirators. It is well-settled, however, that a participant in joint criminal activity can be liable for the foreseeable criminal acts of another in furtherance of the joint criminal activity. See Pinkerton v. United States, 328 U.S. 640, 646-48, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); see also United States v. Missick, 875 F.2d 1294, 1301-02 (7th Cir.1989) (co-conspirators may be subject to enhanced sentences under Pinkerton liability theory). Furthermore, Harris made no written or verbal objections to the factual findings contained in or incorporated by reference into the PSR — findings that establish that Harris did more than merely work the table' — and cannot now challenge those facts on appeal. See United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000). The district court did not clearly err in finding that Harris possessed firearms during the offense for purposes of § 2D1.1(b)(1). Harris next contends that he merited a two-level downward adjustment under the “safety valve” provision, U.S.S.G. § 5C1.2. Under this section and § 2D1.1(b)(6), sentencing courts can adjust an offense level of 26 or greater downward two levels if the defendant can demonstrate that (1) he is a first time offender; (2) he did not possess or use a firearm in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) he was not an organizer or leader of the criminal activity; and (5) he made a good faith effort to cooperate with the government. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Whether co-conspirator liability is a basis for determining possession of a firearm under § 5C1.2 is an issue that we have never addressed, but the majority of circuits to reach the issue have ruled that it is not. Harris, however, did not raise" }, { "docid": "14733937", "title": "", "text": ". Williams v. United States, 361 F.2d 280, 5 Cir. 1966; Spencer v. United States, 295 F.2d 536, 5 Cir. 1961; McClain v. United States, 224 F.2d 522, 5 Cir. 1955. ORDER DENYING PETITION FOR REHEARING PER CURIAM: Following the rendition of this Court’s opinion on September 22, 1967, the appel-lee, United States of America, filed its petition for rehearing, in this cause as it pertains to Count Two of the indictment. The conviction of the appellant under Count Two of the indictment was reversed in this Court’s opinion (see page 540 F.2d). The theory of the petition for rehearing is based on Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), to the effect that a party to a conspiracy is liable as a principal for substantive offenses committed in furtherance of the conspiracy while such party is a member of the conspiracy. This Court applied the Pinkerton principle in its opinion in Gradsky v. United States (5 Cir., 1967), 376 F.2d 993. The Supreme Court stated in Pinkerton, 328 U.S. 640, at 647, 66 S.Ct. 1180, at 1184: “ * * * so long as the partnership in crime continues, the partners act for each other in carrying it forward. * * * The governing principle is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project. Johnson v. United States, 9 Cir., 62 F.2d 32, 34. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy under § 37 of the" }, { "docid": "17366501", "title": "", "text": "finding of three or more predicate offenses. This court “must accept the jury’s guilty verdict” where a rational trier of fact could have reasonably found that Moore committed at least three predicate offenses. United States v. Dykes, 406 F.3d 717, 721 (D.C.Cir.2005). The predicate offenses found by the jury included (1) the drug conspiracy charged in Count 1, see 21 U.S.C. § 846; (2) Gray’s possession with intent to distribute cocaine base on October 5, 1996 (Count 1, Overt Act 78); and (3) Raynor’s possession with intent to distribute heroin on February 8, 1997 (Count 1, Overt Act 90). The latter two were attributable to Moore as a co-conspirator pursuant to Pinkerton v. United States, 328 U.S. 640, 645-48, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946): “As long as a substantive offense was done in furtherance of the conspiracy, and was reasonably foreseeable as a ‘necessary or natural consequence of the unlawful agreement,’ then a conspirator will be held vicariously liable for the offense committed by his or her co-conspirators.” United States v. Washington, 106 F.3d 983, 1012 (D.C.Cir.1997) (quoting Pinkerton, 328 U.S. at 647-48, 66 S.Ct. 1180); see also United States v. Baker, 432 F.3d 1189, 1235 (11th Cir.2005); United States v. Hoover, 246 F.3d 1054, 1057-58 (7th Cir.2001). Moore’s challenge to these CCE predicate offenses rests on his contention that the charged conspiracy terminated before the statute of limitations period, when it split into separate conspiracies operating in different quadrants of the city more than five years prior to the filing of the superseding indictment. It follows, Moore maintains, that the government’s failure to prove the charged conspiracy negates the jury’s finding that these CCE predicate offenses were proven beyond a reasonable doubt. Moore suggests his conviction for the Count 1 drug conspiracy would be vacated and he would not be vicariously liable under Pinkerton for Gray’s and Ray-nor’s acts because there was no charged conspiracy to be furthered. See Washington, 106 F.3d at 1012. Because we conclude that Moore and Gray jointly led the charged drug conspiracy within the limitations period, see supra Part VII, and Moore" }, { "docid": "140385", "title": "", "text": "constructive possession. In our view, neither approach is appropriate in this case — the first as a matter of law, the second because of insufficient evidence. Under the doctrine of co-conspirator liability, conspirators are responsible for the reasonably foreseeable acts of fellow conspirators in furtherance of the conspiracy. See, e.g., Pinkerton v. United States, 328 U.S. 640, 646-48, 66 S.Ct. 1180, 1183-85, 90 L.Ed. 1489 (1946); cf. U.S.S.G. § lB1.3(a)(l)(B) (1995). Although well accepted in substantive criminal law, co-conspirator liability cannot establish possession under the Guidelines’ safety valve, as the Government seems to have acknowledged by virtually dropping this argument on appeal. The safety valve’s application note four provides that, “[consistent with § 1B1.3 (Relevant Conduct), the term ‘defendant,’ as used in subdivision (2), limits the accountability of the defendant to his own conduct and conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused.” Id. § 5C1.2, comment., n.4. This language parallels the wording of one of the two principal provisions defining the scope of relevant conduct for which defendants are held liable under the Guidelines: “all acts and omissions [they] committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused.” Id. § lB1.3(a)(l)(A). Notably absent from application note four, however, is any mention of the other principal provision defining the scope of relevant conduct, which holds defendants liable for “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.”. Id. § lB1.3(a)(l)(B). Omission of this co-conspirator liability language, we think, can hardly have been inadvertent. Its omission, moreover, is consistent with the safety valve’s basic purpose: to spare certain minor participants in drug trafficking enterprises from mandatory minimum sentences when imposition of the mandatory sentences would be disproportionate to the defendants' culpability. See H.R.Rup. No. 103-460, at 2-4. Given the great likelihood that at least one member of a drug distribution conspiracy will possess a firearm, see, e.g., United States v. Payne, 805 F.2d 1062, 1065 (D.C.Cir.1986) (noting courts' widespread recognition that guns are common \"tools of the trade\" for drug dealers), incorporating co-conspirator II-ability into the safety valve's" }, { "docid": "22033086", "title": "", "text": "bank before the robbery was under way. And as he wasn’t one of the robbers, why should he have been sentenced for robbery of the bank as well as for conspiring to rob it? The answer is that he admits having conspired to commit the bank robbery, and as a conspirator he is liable under the doctrine of Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), for crimes committed by his co-conspirators in furtherance of the conspiracy, and so for the robbery. Besides, the indictment to which he pleaded guilty had also charged him with aiding and abetting the robbery — an independent ground for the government’s charging him as a principal. 18 U.S.C. § 2113(a). The other objections that might be made to the sentence but that Bey’s lawyer thinks could not possibly persuade us involve the judge’s calculation of the guidelines sentencing range. The judge determined Bey’s total offense level to be 31 and his criminal history category to be IV, yielding a guidelines range of 151 to 188 months (making the sentence that the judge imposed fall far below the bottom of the range). The range was for the conspiracy and robbery charges together, because they were grouped for purposes of calculating the range, as required by U.S.S.G. § 3D1.2(b), which requires grouping when the “counts [of which the defendant was convicted] involve[d] the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.” Among the other factors that generated Bey’s high offense level were that Schoenhaar had brandished (displayed) a dangerous weapon, U.S.S.G. § 2B3.1(b)(2)(E), and had physically restrained coconspirator Thompson’s innocent coworker. § 2B3.1(b)(4)(B). These factors added five levels to Bey’s offense level. In addition, rejecting the probation service’s recommendation for a 2-level reduction for the defendant’s accepting responsibility for his crimes, § 3El.l(a), the judge instead added two offense levels for obstruction of justice, § 3C1.1, on the basis of evidence that the defendant had urged a potential -witness to ignore a subpoena" }, { "docid": "22080622", "title": "", "text": "F.3d 1095, 1101 (5th Cir.1993). Mrs. Parker failed to present any rebuttal evidence and while the individuals from whom Mrs. Parker extorted money may have been victims,' the SSA was also a victim because it paid monies due to Mrs. Parker’s actions that it otherwise might not have paid. Cf. United States v. Sidhu, 130 F.3d 644, 653-54 (5th Cir.1997) (holding that for doctor’s fraud, the victim impact should include not just amounts collected from patients, but amounts collected from insurance companies as well). Therefore, we reject Mrs. Parker’s argument. Mrs. Parker also argues that the district court erred in increasing her offense level under U.S.S.G. § 2B3.2 based on its finding that her offense involved threats of physical injury and property destruction. A conspirator may be held liable for the substantive offenses of a eoconspirator when the acts are reasonably foreseeable and are done in furtherance of the conspiracy, even where the first conspirator lacked knowledge of or participation in the acts. See Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S.Ct. 1180, 1184-85, 90 L.Ed. 1489 (1946). The trial court found that the threats were made by Mr. Parker, but that the threats were attributable to Mrs. Parker because they were coconspirators and his actions were reasonably foreseeable by her. Absent competent rebuttal evidence, the court properly adopted these facts. U.S.S.G. § 1B1.3(a)(1)(B). Mrs. Parker argues that the district court erred in increasing her offense level pursuant to § 3Bl.l(e) of the Guidelines for her leadership role. We review this sentence enhancement only for clear error, see United States v. Narvaez, 38 F.3d 162, 166 (5th Cir.1994), and no clear error results if the finding is plausible in light of the record read as a whole. See United States v. Watson, 966 F.2d 161, 162 (5th Cir.1992). The record of this case and testimony by government witnesses at trial fully supports the district court’s finding that Mrs. Parker exercised a leadership role in altering SSA documents. See U.S.S.G. § 3B1.1, cmt. 4. Finally, Mrs. Parker argues that the court erred in fading to consider her medical condition" } ]

[ { "docid": "7850517", "title": "", "text": "tho theory that the debtor, though a bankrupt or insolvent, may still have friends who will come to his aid. No ease, however, has been called to our attention, where the friends of a bankrupt or insolvent corporation have evinced such generosity. It seems to us, however, that this question becomes entirely immaterial when the whole state of the record here is considered. If we are to concede that, as the action stands upon the cashier’s check, plaintiff in error was released as its indorser by failure to present for payment at a bank where neither the bank nor its receiver had any lawful power to pay, then plaintiff in error is confronted with this situation: that his notes were not paid, and that the receiver of the First National Bank of Las Yegas would be entitled to recover on the notes. It is well settled that the delivery of a cheek or bill of exchange as a means of paying a debt does not constitute absolute payment, but conditional payment only. We quote the general rule from 22 Am. & Eng. Encyclopedia of Law (2d Ed.) p. 550. “The execution by a debtor to his creditor of a negotiable bill of exchange or draft for the amount of a precedent indebtedness does not, unless the parties expressly so agree, constitute a payment and discharge of the original indebtedness, but, upon nonpayment of the bill or draft, recovery may be had on the original indebted ness. The same rule with regard to the presumption. against the acceptance of a bill or draft as payment applies, where the bill or draft is drawn by’a third person.” Again, quoting from 9 Encyclopedia of TJ. S. Supreme Court Reports, 328: “A bill of exchange or promissory note given for a pre- ' cedent debt does not extinguish the debt or operate as payment of the same, in the absence of a local usage giving it that effect, unless it is expressly agreed that it is received as payment, or there is clear and satisfactory evidence, which leaves no reasonable doubt that such was" } ]

[ { "docid": "6520824", "title": "", "text": "Co. v. Mayflower Gold Mining Co. (C. C. A. 8th) 173 F. 855, 35 L. R. A. (N. S.) 1; Pflueger v. Lewis Foundry & Machine Co. (C. C. A. 6th) 134 F. 28; Norton on Bills and Notes (3d Ed.) 19; Daniel on Negotiable Instruments (2d Ed.) 557 et seq.; 21 R. C. L. 60, 61. And an agreement that the cheek was to be received in absolute payment is not to be implied from the fact that upon its receipt the note was marked paid and surrendered. Philadelphia Life Ins. Co. v. Hayworth, supra; Interstate Bank v. Ringo, 72 Kan. 116, 83 P. 119, 3 L. R. A. (N. S.) 1179, 115 Am. St. Rep. 176; Kinard v. First Nat. Bank, 125 Ga. 228, 53 S. E. 1018, 114 Am. St. Rep. 201; 21 R. C. L. pp. 64, 65. Whether or not the cheek was accepted by complainant in payment and discharge of the $6,000 note was a question of fact, and we agree with the learned District Judge that the evidence adduced did not support the theory that it was so accepted. The evidence showed, on the contrary, that the notes of March 21, 1912, were executed in renewal of the notes previously given, and that Melton and the other indorsers indorsed them as a continuance of the original obligation. It follows that no part of Melton’s debt to complainant was created after the conveyance to defendant, but that what was done on March 21, 1912, merely continued a liability which had been created prior to the conveyance. Complainant was not a subsequent creditor, therefore, within the meaning of the statute as to any part of his debt against Melton, and is not entitled for that reason to subject defendant’s land to the payment of his debt. It may be well to state that whether complainant was an antecedent or subsequent creditor is of importance, because the case is governed by the law as it existed prior to the 1914 amendment to the recording act (28 St. at Large S. C. p. 482). It would seem" }, { "docid": "13277235", "title": "", "text": "Chemical Company accepted their check, or because the Federal Reserve Bank, acting for the Chemical Company in the collection of the cheek, accepted from the drawee of the cheek a draft on its reserve deposits in the First National Bank of New Bern. As to the first proposition, it is well settled that, in the absence of special agreement to that effect, acceptance of a check does not operate as payment of a debt, unless the cheek is itself paid. Little v. Mangum (C. C. A. 4th) 17 F.(2d) 44; decided January 11, 1927; Philadelphia Life Ins. Co. v. Hayworth (C. C. A. 4th) 296 F. 339; Hayworth v. Philadelphia Life Ins. Co., 190 N. C. 757, 130 S. E. 612. And an agreement that a cheek is to be received in absolute payment is not to be implied from the fact that, upon its receipt evidences of debt are marked paid and surrendered or a receipt is given. 2 Morse on Banks and Banking (5th Ed.) § 544 ; 21 R. C. L. p. 64; Inter State Bank v. Ringo, 72 Kan. 116, 83 P. 119, 3 L. R. A. (N. S.) 1179, 115 Am St. Rep. 176; Little v. Mangum, supra. It is clear, therefore, that the acceptance of the cheek by the Chemical Company did not extinguish the debt of Cleve & White, unless the cheek itself has been paid. Whether the check has been paid or not depends upon whether or not acceptance by the Reserve Bank of the exchange draft on the reserve deposits of the drawee Bank of Vanceboro operated as payment of the, cheek. Undoubtedly the general rule is that acceptance of such draft operates as payment of the check and discharges the drawer of the check from further liability. Federal Reserve Bank v. Malloy, 264 U. S. 160, 44 S. Ct. 296, 68 L. Ed. 617, 31 A. L. R. 1261; Id. (C. C. A. 4th) 291 F. 763; Id. (D C.) 281 F. 997, and cases cited. The reason of the rule is that a cheek is payable only in cash," }, { "docid": "21713894", "title": "", "text": "15 Ind. App. 34; Gorman v. Brossard, 79 N. W. 903, 906, 120 Mich. 611; Brabin v. Hyde, 32 N. Y. 519; Young v. Ingalsbe, 102 N. E. 590, 208 N. Y. 503; Norwegian Plow Co. v. Hanthorn, 37 N. W. 825, 71 Wis. 529; Milos v. Covacevich, 40 Or. 239, 66 P. 914; Johnson v. Tabor; 57 So. 365, 101 Miss. 78; Mahan v. U. S., 16 Wall. (83 U. S.) 143, 21 L. Ed. 307; notes, 125 Am. St. Rep. 398, 21 Eng. Rul. Cas. 23, 27 Eng. Rul. Cas. 623, 23 A. L. R. 473; 25 R. C. L. p. 619, § 235; 27 C. J. p. 254, § 301. The rule is stated in 27 C. J., supra, as follows: “The actual discharge, in whole or in part, of an antecedent debt due to the buyer, will constitute a payment within the statute. But a mere agreement to credit the price of the goods on such indebtedness'will not suffice. There must be an actual cancellation and discharge of the indebtedness, * * * on the books of the creditor, or a written receipt executed by him, or some other like unequivocal act not resting in mere words which will bind him. An entry on a separate memorandum book, or on a blank leaf of an account book, is not sufficient as a part payment.” Whether in the instant case there was an actual discharge in whole or in part of the liability which arose out of the prior payment, sufficient to constitute a part payment under the statute of frauds, cannot, in our judgment, be determined from this record. If the defendant can prove such a part payment as to take the parol contract, made in September, 1921, without the statute of frauds under the rules above stated, then it should be permitted to offer proof in support of the contract set out in the counterclaim. If the defendant cannot establish its counter-, claim, plaintiff by an appropriate action for money had and received would be entitled to recover the $10,000 paid to the defendant. The" }, { "docid": "22159016", "title": "", "text": "'What is true about bonds is true about certificates of indebtedness. Indeed it is difficult to see any distinction between them as they are commonly known to the business world. The essence of each is that they contain a promise under seal of the corporation to pay a certain sum to order or bearer.’ “If the term 'certificates of indebtedness’ standing by itself be susceptible of a broader meaning than that given to it above, its association here with bonds and debentures excludes such broader meaning. The maxim noscitur a sociis applies. “A consideration of Title XI as a whole supports the conclusion above arrived at. Three classes of paper issued by individuals, partnerships, and corporations are subject thereunder to stamp tax: Bonds of indebtedness (subdivision 1), certificates of stock (subdivision 3), and drafts or checks and promissory notes (subdivision 6); i. e., instruments possessing to a greater or less extent the attributes of commercial paper. “The premises lead inevitably to the conclusion that it was not the intention of Congress to tax under subdivision 1 of the said Schedule A every evidence of indebtedness other than those included under the heads of shares or certificates of stock, promissory notes, or bills of exchange, but only those evidences of indebtedness which have the general character of investment securities and which may properly be included under the term ‘bonds of indebtedness.’ The definition of ‘certificate of indebtedness’ as ‘primarily any instrument acknowledging liability for the payment of money, not in the recognized form of a promissory note or bill of exchange,’ contained in T. D. 2713, is too inclusive and does not sufficiently delimit the instruments included in the term. “It is therefore held that the term ‘certificate of indebtedness’ as used in subdivision 1 of Schedule A, Title XI, Revenue Act of 1918, includes only instruments having the general character of in vestment securities, as distinguished from instruments evidencing debts arising in ordinary transaction between individuals; and that conditional bills of sale are not certificates of indebtedness. “T. D. 2713 should be modified to conform with this holding. “Robert N." }, { "docid": "11101086", "title": "", "text": "\"are made part of any bill of exchange, acceptance, draft, promissory note, or other written evidence of indebtedness.” Plainly the mortgage, and the stipulation therein for the payment of a solicitor’s fee upon the foreclosure of the mortgage, do.not fall within any of the classes of obligations mentioned in the statute, unless embraced by the words, \"other written evidence of indebtedness.” But it is familiar law in the construction of statutes that where specific terms are used covering specific objects, and other general words follow, the general words are to be construed with reference to their associates. The maxim applicable thereto is, “Noseitur a sociis.” Thus construed, the words, “other written evidence of indebtedness,” must be held to be evidence of indebtedness of like character with those described in the specific terms used in cataloguing the instruments in which a conditional agreement to pay an attorney’s fee is declared to be illegal and void. The mortgage is not the written evidence of the defendants’ indebtedness. The bond secured by the mortgage constitutes the written evidence pf indebtedness. The mortgage is a mere security for the performance of the obligation or duty assumed by the mortgagor. A mortgage is always regarded as an accessory to the principal thing, and the stipulation contained in the mortgage to pay a solicitor’s fee upon the foreclosure of the mortgage is not a part of the written evidence of the indebtedness of the defendants, but is a mere agreement of indemnity, a recovery upon which is dependent upon the breach of the mortgagors’ obligation to pay at maturity the • indebtedness secured by the mortgage. The stipulation is not, in and of itself, any evidence of an existing debt, nor is it a part of the written evidence of indebtedness. Of itself, it is a collateral agreement, constituting no part of the written evidence of indebtedness, and the right to enforce it depends upon the institution of a suit for the foreclosure of the mortgage. It does not seem to the court that, without a broad and latitudinary construction of the statute, which is not" }, { "docid": "23278611", "title": "", "text": "Mr. Justice Field, after stating the case, delivered the opinion of the court. In the record, the instruments upon which the action is brought are designated as “ drafts or bills of exchange.” In a general sense they may be thus designated; for they are orders of one party upon another for the payment of money, which is the essential characteristic of drafts or bills of exchange. They are also negotiable, and pass by delivery, and are wichin the description of instruments of that character in the act of March 3, 1875, prescribing the jurisdiction of Circuit Courts of the United States.' But, in strictness, they are bank checks. They have all the particulars in which such instruments differ or may differ from regular bills of exchange. They are drawn upon a bank having funds of the drawer for their payment, and they are payable upon demand, although the time of payment is not designated in them. A bill of exchange may be so drawn, but it usually states the time of payment, and days of grace are allowed upon it. There are no days' of grace'upon checks. The instruments here are also drawn in the briefest form possible in orders for the payment- of money, which is the usual characteristic of checks. A bill of exchange is generally drawn with more formality, and payment at sight, or at a specified number of days after date, is requested, and that the amount be charged to the drawer’s account. \"When intended for transmission to another state or country, they are usually drawn in duplicate or triplicate, and designated as first, second or third of exchange. A regular bill of exchange, it is true, may be in a form similar to a bank check, so that it may-sometimes be difficult, from their form, to distinguish between the two classes of instruments. But when the instrument is drawn upon a bank, or a person engaged in banking business, and simply directs the payment to a party named of a specified sum of money, which is at the time on deposit with the drawee," }, { "docid": "13277241", "title": "", "text": "absolute requirement of the common law that a check presented at the bank’s counter must be paid in cash. It gave the drawee bank the option to pay (by exchange only in certain eases, namely, when the cheek was ‘presented by or through any Federal Reserve Bank, post office or express company, or any respective agents thereof.’ The option was so limited because the only purpose of the statute was to relieve- state banks from the pressure which, by reason of the common-law require ment, federal reserve banks were in a position to exert and. thus compel submission to par clearance.” As Cleve & White did not specify cash payment in tbe face of tbe cheek, they must be held under the act of 1921 to have impliedly agreed that the Bank of Vanceboro might pay it by an exchange draft on reserve deposits, if it should be presented by or through the Federal Reserve Bank. The Reserve Bank could not require payment in any other medium. Federal Land Bank v. Barrow, 189 N. C. 303, 127 S. E. 3. The Reserve Bank, therefore, presented a check which, under the law, the Bank of Vanceboro was authorized at its option to treat as an order for an exchange draft. When it exercised this option, and gave an exchange draft pursuant to the order, was such draft payment, when not itself paid? We think not. If, under the case presented, Cleve & White had tendered an exchange draft of the Bank of Vanceboro in payment of their debt, there can be no doubt that this would not have extinguished the debt, if the draft had been dishonored, for the rule is well settled that, “in the absence of any special agreement to the contrary, the mere acceptance by a creditor from his debtor of the cheek of a third person, payable to the creditor’s order, for a pre-existing debt, is not absolute, but merely conditional, payment, defeasible on the dishonor or nonpayment of the check.” 21 R. C. L. p. 61, and eases there cited. The result cannot be different where" }, { "docid": "13277236", "title": "", "text": "64; Inter State Bank v. Ringo, 72 Kan. 116, 83 P. 119, 3 L. R. A. (N. S.) 1179, 115 Am St. Rep. 176; Little v. Mangum, supra. It is clear, therefore, that the acceptance of the cheek by the Chemical Company did not extinguish the debt of Cleve & White, unless the cheek itself has been paid. Whether the check has been paid or not depends upon whether or not acceptance by the Reserve Bank of the exchange draft on the reserve deposits of the drawee Bank of Vanceboro operated as payment of the, cheek. Undoubtedly the general rule is that acceptance of such draft operates as payment of the check and discharges the drawer of the check from further liability. Federal Reserve Bank v. Malloy, 264 U. S. 160, 44 S. Ct. 296, 68 L. Ed. 617, 31 A. L. R. 1261; Id. (C. C. A. 4th) 291 F. 763; Id. (D C.) 281 F. 997, and cases cited. The reason of the rule is that a cheek is payable only in cash, and if the holder accepts something other than cash he assumes the risk incident thereto, and is estopped to deny payment as against the drawer. As said in Anderson v. Gill, 79 Md. 312, 317, 29 A. 527, 25 L. R. A. 200, 47 Am. St. Rep. 402, and quoted with approval by the Supreme Court in Bank v. Malloy, supra: “Now a cheek on a bank or banker is payable in money, and in nothing else. Morse, Banks and Banking (2d Ed.) p. 268. The drawer, having funds to his credit with the drawee, has a right to assume that the payee will, upon presentation, exact in payment precisely what the cheek was given for, and that he will not accept, in lieu thereof, something for which it had not been drawn. It is certainly not within his contemplation that the payee should, upon presentation, instead of requiring the cash to be paid, accept at the drawer’s risk a cheek of the drawee upon some other bank or banker. The holder had a right" }, { "docid": "6520823", "title": "", "text": "$15,000, his liability was increased by the amount of $6,000, and that to the extent of this $6,000 complainant thus became a creditor of Melton after Melton had executed the conveyance to defendant and before it was recorded. vVe do not think, however, that this is the correct view of these transactions. There was no special agreement that the check should be accepted in absolute payment or discharge of the $6,000 note, and, in the absence of such special agreement, the presumption is that it was accepted on condition that it should itself be paid. In such case, the debt is not discharged until the cheek is paid or accepted at the bank at which it is made payable. Philadelphia Life Ins. Co. v. Hayworth (C. C. A. 4th) 296 F. 339; Bewley-Darst Coal Co. v. Laurens Gin & Fuel Co., 126 S. C. 219, 119 S. E. 589; The Emily Souder, 17 Wall. 666, 21 L. Ed. 683; The Bird of Paradise, 5 Wall. 545, 18 L. Ed. 662; A. Leschen & Sons Rope Co. v. Mayflower Gold Mining Co. (C. C. A. 8th) 173 F. 855, 35 L. R. A. (N. S.) 1; Pflueger v. Lewis Foundry & Machine Co. (C. C. A. 6th) 134 F. 28; Norton on Bills and Notes (3d Ed.) 19; Daniel on Negotiable Instruments (2d Ed.) 557 et seq.; 21 R. C. L. 60, 61. And an agreement that the cheek was to be received in absolute payment is not to be implied from the fact that upon its receipt the note was marked paid and surrendered. Philadelphia Life Ins. Co. v. Hayworth, supra; Interstate Bank v. Ringo, 72 Kan. 116, 83 P. 119, 3 L. R. A. (N. S.) 1179, 115 Am. St. Rep. 176; Kinard v. First Nat. Bank, 125 Ga. 228, 53 S. E. 1018, 114 Am. St. Rep. 201; 21 R. C. L. pp. 64, 65. Whether or not the cheek was accepted by complainant in payment and discharge of the $6,000 note was a question of fact, and we agree with the learned District Judge that the evidence" }, { "docid": "21713893", "title": "", "text": "and Missouri statutes, both being substantially the same as the seventeenth section of the English act. Under these acts it is not necessary that the payment be made at the time of the making of the contract. It may be made and received afterwards. 27 C. J. p. 253, § 297; 25 R. C. L. p. 620, § 236. However, in the instant ease, the national bank paid the defendant the sum of $10,000 before any contract had been entered into between the parties. By reason of this payment there arose an implied contract on the part of the defendant to repay the plaintiff the sum of $10,000. To constitute a part payment within the statute of frauds, there' must have been an actual discharge of defendant’s liability to plaintiff upon such implied contract. Walker v. Nussey, 16 M. & W. 302, 16 L. J. Exch. 120, 21 Eng. Rul. Cas. 18; Scott v. Mundy et al., 188 N. W. 972,193 Iowa, 1360, 23 A. L. R. 460; Galbraith v. Holmes, 43 N. E. 575, 15 Ind. App. 34; Gorman v. Brossard, 79 N. W. 903, 906, 120 Mich. 611; Brabin v. Hyde, 32 N. Y. 519; Young v. Ingalsbe, 102 N. E. 590, 208 N. Y. 503; Norwegian Plow Co. v. Hanthorn, 37 N. W. 825, 71 Wis. 529; Milos v. Covacevich, 40 Or. 239, 66 P. 914; Johnson v. Tabor; 57 So. 365, 101 Miss. 78; Mahan v. U. S., 16 Wall. (83 U. S.) 143, 21 L. Ed. 307; notes, 125 Am. St. Rep. 398, 21 Eng. Rul. Cas. 23, 27 Eng. Rul. Cas. 623, 23 A. L. R. 473; 25 R. C. L. p. 619, § 235; 27 C. J. p. 254, § 301. The rule is stated in 27 C. J., supra, as follows: “The actual discharge, in whole or in part, of an antecedent debt due to the buyer, will constitute a payment within the statute. But a mere agreement to credit the price of the goods on such indebtedness'will not suffice. There must be an actual cancellation and discharge of the indebtedness, *" }, { "docid": "18441599", "title": "", "text": "v. U. S., 219 U. S. 486, 31 S. Ct. 272, 55 L. Ed. 305; N. Y. C. & H. R. R. Co. v. Gray, 239 U. S. 583, 36 S. Ct. 176, 60 L. Ed. 451; Eggleston v. Plowman, 49 S. D. 609, 207 N. W. 981, 44 A. L. R. 1231.” In the case of L. & N. R. R. v. Mottley, 219 U. S. 467, 31 S. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671, cited by the trial court, the declaration is found in the third syllabus, “the statute means that transportation shall be paid for by all alike and only in cash,” and the exhaustive opinion of the court justifies and settles the conclusion. It is reiterated and adhered to in C. I. & L. Ry. Co. v. U. S., 219 U. S. 486, 31 S. Ct. 272, 55 L. Ed. 305, and followed in L. & N. Ry. Co. v. Maxwell, 237 U. S. 94, 35 S. Ct. 494, 59 L. Ed. 853, L. R. A. 1915E, 665, and N. Y. C. & H. R. R. Co. v. Gray, 239 U. S. 583, 36 S. Ct. 176, 60 L. Ed. 451. In the case of Eggleston v. Plowman, also cited by the trial court, it appeared that a taxpayer had delivered a draft to the county treasurer in payment of taxes. The county treasurer held the same for three weeks and until after the bank had failed. The statute of the state forbade the payment of taxeg in anything but money, and the court said: “It is the usual rule, in the absence of an express agreement otherwise, that payment by draft or cheek is conditional payment only, ripening into absolute payment when the draft or check is in fact paid. These propositions are conceded by appellant, but he undertakes to apply to the defendant as a public official the same rule that would obtain between private individuals, and to maintain that the draft, although conditional payment only when offered, yet, having been retained by the defendant instead of" }, { "docid": "7850516", "title": "", "text": "being that of an indorser only, he would he discharged absolutely, whether or not he was injured by the delay. We regard the latter question as the only troublesome one in the ease. Plaintiff in error cites Daniel on Negotiable Instruments (6th Ed.) vol. 2, § 1170, and quotes: “In the first place, the want of prejudice or injury to the drawer or indorser is never a sufficient excuse for default in making presentment or protest, or giving notice of dishonor.” The ease of Nuzum v. Sheppard, 87 W. Va. 243, 104 S. E. 587, 11 A. L. R. 1024, is cited as holding that inexcusable delay in presenting a check for payment will discharge an indorser from liability thereon if the check is not paid, whether the indorser is in fact injured by the delay or not. Other eases are cited to the same effect. On the other hand, cases holding the contrary doctrine are cited by defendant in error. Tho older cases, holding that pre judice is not material, are generally based upon tho theory that the debtor, though a bankrupt or insolvent, may still have friends who will come to his aid. No ease, however, has been called to our attention, where the friends of a bankrupt or insolvent corporation have evinced such generosity. It seems to us, however, that this question becomes entirely immaterial when the whole state of the record here is considered. If we are to concede that, as the action stands upon the cashier’s check, plaintiff in error was released as its indorser by failure to present for payment at a bank where neither the bank nor its receiver had any lawful power to pay, then plaintiff in error is confronted with this situation: that his notes were not paid, and that the receiver of the First National Bank of Las Yegas would be entitled to recover on the notes. It is well settled that the delivery of a cheek or bill of exchange as a means of paying a debt does not constitute absolute payment, but conditional payment only. We quote the" }, { "docid": "11101085", "title": "", "text": "attorney’s fees renders void the above-quoted provision on that subject contained in the mortgage. The statute of this state touching attorney’s fees is section 7532, 3 Burns’ Bev. St. 1894, which reads: “Any and all agreements to pay attorney’s fees, depending upon any condition therein set forth and made part of any hill of exchange, acceptance, draft, promissory note, or other written evidence of indebtedness, are hereby declared, illegal and void.” The court is of opinion that, if the mortgage is to be construed as an Indiana contract, the statute does not apply to' it. It is an elementary principle of law that statutes which abridge the power to contract, inasmuch as they are in derogation of common right, are to be strictly construed, and willTbe given no effect beyond the fair meaning of the words employed. The statute does not embrace every contract or agreement to pay attorney’s fees. It is limited to those depending upon a condition set forth in the agreement evidencing the indebtedness, and is further limited to such agreements as \"are made part of any bill of exchange, acceptance, draft, promissory note, or other written evidence of indebtedness.” Plainly the mortgage, and the stipulation therein for the payment of a solicitor’s fee upon the foreclosure of the mortgage, do.not fall within any of the classes of obligations mentioned in the statute, unless embraced by the words, \"other written evidence of indebtedness.” But it is familiar law in the construction of statutes that where specific terms are used covering specific objects, and other general words follow, the general words are to be construed with reference to their associates. The maxim applicable thereto is, “Noseitur a sociis.” Thus construed, the words, “other written evidence of indebtedness,” must be held to be evidence of indebtedness of like character with those described in the specific terms used in cataloguing the instruments in which a conditional agreement to pay an attorney’s fee is declared to be illegal and void. The mortgage is not the written evidence of the defendants’ indebtedness. The bond secured by the mortgage constitutes the written evidence" }, { "docid": "13277244", "title": "", "text": "the fact that the check had been charged against depositor’s account did not preclude him from claiming the deposit upon the dishonor of the exchange draft, nor from setting it off against liability on his note. The decision was based upon the holding that -payment by exchange draft was conditioned upon the draft being paid. The court said: “We have not overlooked the contention of plaintiff that by reason of chapter 20, Public Laws 1921, the Bank of Proctorville had the option to pay the cheek of J. R. Lawson, its depositor, when same was sent to it for collection through the post office, by draft on the Bank at Wilmington. This statute has been declared by the Supreme Court of the United States not to be' in violation of the Constitution of the United States, and therefore valid. Farmers’ & Merchants’ Bank of Monroe, N. C., v. Federal Reserve Bank of Richmond, Va., 262 U. S. 649, 43 S. Ct. 651, 67 L. Ed. 1157, 30 A. L. R. 635. The provisions of the statute, however, must be construed in accordance with well-settled rules of law; it will not be held that a drawee bank can charge cheeks drawn on it by its customers, to the accounts of such customers, remit in drafts or exchange to the forwarding bank, and thereby be released, notwithstanding that said drafts or exchange are, for valid and lawful reasons, not paid. Where a check drawn on a bank or trust company, chartered by this state, is presented to the drawee bank, ‘by or through any Federal Reserve Bank, post office or express company or any respective agent thereof,’ and such bank or trust company in the exercise of the option conferred by said statute, sends to the forwarding bank its draft on its reserve deposits, in payment of such cheek, it will not be discharged of liability for the collection of its depositor’s check until such draft on its reserve deposit has been paid.” Debtors contend that the effeet of the judgment of the court below is to require them to pay their" }, { "docid": "12364434", "title": "", "text": "in good faith and without notice. There can be no question, we think, but that the title of the bank was defective. The sale was a cash transaction, in which the passage of title depended upon payment; and it is well settled that, in the absence of special agreement to the contrary, a check is conditional payment only and does not operate to effect payment unless it is itself paid. Cleve v. Craven Chemical Co., supra (C. C. A. 4th) 18 F.(2d) 711, 712, 52 A. L. R. 980; Little v. Mangum (C. C. A. 4th) 17 F.(2d) 44; Philadelphia Life Ins. Co. v. Hayworth (C. C. A. 4th) 296 F. 339; Morris v. Cleve, supra, 197 N. C. 253, 148 S. E. 253, 259; Hayworth v. Philadelphia Life Ins. Co., 190 N. C. 757, 130 S. E. 612, 613. The rule that a check of a debtor is merely conditional payment applies to obligations arising out of immediate transactions, as well as to payment of antecedent debts; and, where there is a sale for cash on delivery, and payment is made by check of the buyer, such check constitutes only conditional payment. Until the check is itself paid, the title, as between the parties, passes only conditionally; and, upon dishonor of the check, the seller may rescind the transaction and reclaim that with which he has parted. See 21 R. C. L. 64; notes to 31 A. L. R. 578 and 54 A. L. R. 526 and cases cited, and particularly In re A. O. Brown & Co. (D. C.) 189 F. 442; Young v. Harris-Cortner Co., 152 Tenn. 15, 268 S. W. 125, 54 A. L. R. 516; Comer v. Cunningham, 77 N. Y. 391, 33 Am. Rep. 626; Hodgson v. Barrett, 33 Ohio St. 63, 31 Am. Rep. 527; First Nat. Bank v. Griffin & Griffin, 31 Okl. 382, 120 P. 595, 596, 49 L. R. A. (N. S.) 1020; People’s State Bank v. Brown, 80 Kan. 520, 103 P. 102, 23 L. R. A. (N. S.) 824; Johnson-Brinkman Commission Co. v. Central Bank, 116 Mo. 558," }, { "docid": "22159017", "title": "", "text": "1 of the said Schedule A every evidence of indebtedness other than those included under the heads of shares or certificates of stock, promissory notes, or bills of exchange, but only those evidences of indebtedness which have the general character of investment securities and which may properly be included under the term ‘bonds of indebtedness.’ The definition of ‘certificate of indebtedness’ as ‘primarily any instrument acknowledging liability for the payment of money, not in the recognized form of a promissory note or bill of exchange,’ contained in T. D. 2713, is too inclusive and does not sufficiently delimit the instruments included in the term. “It is therefore held that the term ‘certificate of indebtedness’ as used in subdivision 1 of Schedule A, Title XI, Revenue Act of 1918, includes only instruments having the general character of in vestment securities, as distinguished from instruments evidencing debts arising in ordinary transaction between individuals; and that conditional bills of sale are not certificates of indebtedness. “T. D. 2713 should be modified to conform with this holding. “Robert N. Miller, “Solicitor of Internal Revenue.” It should be said that the administrative practice, which we consider as crucial here, was not brought to the attention of the Court of Appeals in Niles-Bement-Pond Co. v. Fitzpatrick, supra. Nor do General Motors Acceptance Corp. v. Higgins, supra, or any of the cases cited in note 4, supra, advert to that practice. As long ago as 1916, no less an authority on corporate finance than the late Mr. F. L. Stetson described debentures in the following terms: “In the United States, as already mentioned, the term ‘debenture’ is understood to mean serial obligations of a corporation not secured by a specific mortgage, pledge or assignment of property. Of course a series of debentures may be issued without the execution of any indenture relating thereto. Prior to 1900 the few issues that had been made of such debentures were not accompanied by a trust agreement. In such case the rights and privileges given to bondholders were set forth at length in the obligation, thus making a somewhat lengthy instrument." }, { "docid": "18441598", "title": "", "text": "by the trial court as follows: “The Interstate Commerce Commission adopted a rule dated September 15, 1906, known as Conference Ruling 207, reading as follows : “ ‘207. Payment for Transportation.— Nothing but money can be lawfully received or accepted in payment for transportation subject to the act, whether of passengers or property, or for any service in connection therewith, it being the opinion of the Commission that the prohibition against charging or collecting a greater or less or different compensation than the established rates of fare in effeet at the time, precludes the acceptance of service, property, or other payment in lieu of the amount of money specified in the published schedules.’ ” “The foregoing rule of the Interstate Commerce Commission has the force and effect of United States Statute, and it must follow that the payment by the cheek was unlawful and that the plaintiff herein is entitled under the law to recover in this suit the charges for the freight which have never been legally paid. C. I. & L. Ry. Co. v. U. S., 219 U. S. 486, 31 S. Ct. 272, 55 L. Ed. 305; N. Y. C. & H. R. R. Co. v. Gray, 239 U. S. 583, 36 S. Ct. 176, 60 L. Ed. 451; Eggleston v. Plowman, 49 S. D. 609, 207 N. W. 981, 44 A. L. R. 1231.” In the case of L. & N. R. R. v. Mottley, 219 U. S. 467, 31 S. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671, cited by the trial court, the declaration is found in the third syllabus, “the statute means that transportation shall be paid for by all alike and only in cash,” and the exhaustive opinion of the court justifies and settles the conclusion. It is reiterated and adhered to in C. I. & L. Ry. Co. v. U. S., 219 U. S. 486, 31 S. Ct. 272, 55 L. Ed. 305, and followed in L. & N. Ry. Co. v. Maxwell, 237 U. S. 94, 35 S. Ct. 494, 59 L. Ed. 853, L." }, { "docid": "13277242", "title": "", "text": "303, 127 S. E. 3. The Reserve Bank, therefore, presented a check which, under the law, the Bank of Vanceboro was authorized at its option to treat as an order for an exchange draft. When it exercised this option, and gave an exchange draft pursuant to the order, was such draft payment, when not itself paid? We think not. If, under the case presented, Cleve & White had tendered an exchange draft of the Bank of Vanceboro in payment of their debt, there can be no doubt that this would not have extinguished the debt, if the draft had been dishonored, for the rule is well settled that, “in the absence of any special agreement to the contrary, the mere acceptance by a creditor from his debtor of the cheek of a third person, payable to the creditor’s order, for a pre-existing debt, is not absolute, but merely conditional, payment, defeasible on the dishonor or nonpayment of the check.” 21 R. C. L. p. 61, and eases there cited. The result cannot be different where the draft is tendered by the bank upon the order of the debtor, instead of by the debtor himself. The rule that acceptance of the draft of the drawee bank in payment of a check releases the drawer can have no application; for the reason of the rule, the common-law requirement of cash payment, no longer exists, and the maxim applies: “Cessante ratione legis, eessat ipsa lex.” We do not find that, the exact point presented by this ease has been heretofore decided, but the principles which we deem controlling were applied by the Supreme Court of North Carolina to a somewhat similar case in Graham v. Proctorville Warehouse Co., 189 N. C. 533, 127 S. E. 540. In that case the question was the right of a depositor to set off his deposit in an insolvent bank against a note which its receiver held against him. He had drawn a check against this deposit, .and in payment of the cheek an exchange draft had been given, which had been dishonored. It was .held that" }, { "docid": "2292751", "title": "", "text": "the bills of exchange or the promissory notes to Nikimiha by Trend, Weld Monde, Rafsky or Whirley. (Reply to Request for Admissions, ¶ 44). Nikimiha received partial payment of approximately 630,000 Pounds Sterling on the Trend obligation on September 30, 1984 from Export Credit Guarantee Department (“ECGD”) under a policy insuring Nikimiha against default by Trend. ECGD is a Department of the Secretary of State for Trade for the United Kingdom. (Tr. 2.99-102). Trend is liable to Nikimiha on the bills of exchange. Rafsky is liable to Nikimiha on his guarantee. Discussion I. Liability and Novation A. Bills of Exchange The first issue is whether Pennsylvania or English law applies. This is a diversity case, so Pennsylvania’s choice of law rules govern. Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Melville v. American Home Assurance Co., 584 F.2d 1306, 1308 (3d Cir.1978). Under Pennsylvania conflicts law, “the place having the most interest in the problem and which is the most intimately concerned with the outcome is the forum whose law should be applied.” Complaint of Banker’s Trust Company, 752 F.2d 874, 882 (3d Cir.1985). The Facility Agreement does not contain a choice of law provision. But whether Pennsylvania or English law applies is here immaterial because under both English and Pennsylvania law, Trend’s acceptance of the bills of exchange created an obligation on its part to pay Nikimina the sums stated therein. A Bill of Exchange is a negotiable instrument evidencing a debt on the part of the acceptor. 4 Halsbury’s Laws of Eng land 11356 (4th Ed.1973); 13 Pa.C.S.A. 3413(a). B. Promissory Notes The promissory notes executed March 12, 1984 each state that they “shall in all respects be interpreted in accordance with the laws of England.” (Emphasis supplied). (Ex. N-34, N-35). Nikimiha contends that in view of this language, English law controls whether or not the execution of these notes constituted a novation of the bills of exchange and the guarantee. Defendants argue whether or not there was a novation depends on the effect of the execution of" }, { "docid": "13277243", "title": "", "text": "the draft is tendered by the bank upon the order of the debtor, instead of by the debtor himself. The rule that acceptance of the draft of the drawee bank in payment of a check releases the drawer can have no application; for the reason of the rule, the common-law requirement of cash payment, no longer exists, and the maxim applies: “Cessante ratione legis, eessat ipsa lex.” We do not find that, the exact point presented by this ease has been heretofore decided, but the principles which we deem controlling were applied by the Supreme Court of North Carolina to a somewhat similar case in Graham v. Proctorville Warehouse Co., 189 N. C. 533, 127 S. E. 540. In that case the question was the right of a depositor to set off his deposit in an insolvent bank against a note which its receiver held against him. He had drawn a check against this deposit, .and in payment of the cheek an exchange draft had been given, which had been dishonored. It was .held that the fact that the check had been charged against depositor’s account did not preclude him from claiming the deposit upon the dishonor of the exchange draft, nor from setting it off against liability on his note. The decision was based upon the holding that -payment by exchange draft was conditioned upon the draft being paid. The court said: “We have not overlooked the contention of plaintiff that by reason of chapter 20, Public Laws 1921, the Bank of Proctorville had the option to pay the cheek of J. R. Lawson, its depositor, when same was sent to it for collection through the post office, by draft on the Bank at Wilmington. This statute has been declared by the Supreme Court of the United States not to be' in violation of the Constitution of the United States, and therefore valid. Farmers’ & Merchants’ Bank of Monroe, N. C., v. Federal Reserve Bank of Richmond, Va., 262 U. S. 649, 43 S. Ct. 651, 67 L. Ed. 1157, 30 A. L. R. 635. The provisions of the" } ]

[ { "docid": "1159435", "title": "", "text": "effect of the enforcement action would be to require adherence to the terms of the collective bargaining agreement. But the filing of the petition in bankruptcy means that the collective-bargaining agreement is no longer immediately enforceable, and may never be enforceable again. Consequently, Board enforcement of a claimed violation of § 8(d) under these circumstances would run directly counter to the express provisions of the Bankruptcy Code and to the Code’s overall effort to give a debtor-in-possession some flexibility and breathing space. We conclude that from the filing of a petition in bankruptcy until formal acceptance, the collective-bargaining agreement is not an enforceable contract within the meaning of NLRA § 8(d). Bildisco, 465 U.S. at 582, 104 S.Ct. at 1199 (citation omitted). The legislative response to Bildisco was swift. Only five months after the decision, Congress enacted 11 U.S.C. § 1113 as part of the 1984 amendments to the Bankruptcy Code. Subsection 1113(a) provides that the trustee or debtor-in-possession “may assume or reject a collective bargaining agreement only in accordance with the provisions of this section.” Subsection 1113(b) requires the trustee or debtor-in-possession to make a proposal to the union providing for employee benefit modifications that are necessary to permit the reorganization of the debtor and to assure that all creditors, the debtor, and all other affected parties are treated fairly. The debt- or must also provide the union with all information necessary to effectively evaluate the proposal. Subsection 1113(b) further requires meetings between the debtor-in-possession and the union. Subsection 1113(c) provides that the court shall approve an application for rejection of the collective bargaining agreement only if it finds that the debtor-in-possession has made a proposal that fulfills the requirements of subsection (b); that the union has refused to accept the proposal without good cause; and that the balance of the equities favors rejection of the contract. Subsection 1113(c) contains a timetable during which the bankruptcy court must rule on the petition. Subsection 1113(e) contains a provision allowing emergency relief as necessary to prevent irreparable damage to the debtor’s business. Finally, subsection 1113(f) provides that “[n]o provision of this" } ]

[ { "docid": "1092218", "title": "", "text": "and various benefits due and owing to their employees under the various agreements and concede that they have not petitioned the court for permission to terminate or alter the agreements pursuant to § 1113. They deny, however, that failure to make the required payments was in violation of § 1113(f). Debtors claim that failure to pay wages and benefits as required constituted a mere breach of the agreements, rather than a unilateral alteration thereof. This contention is without merit. The distinction between a breach and a unilateral alteration, upon which debtors insist, is of no significance in this instance. Debtors effected a unilateral alteration of the agreements, for purposes of § 1113(f), when they failed to abide by the provisions pertaining to payment of wages and benefits. The agreements remain in effect unless and until debtors comply with the provisions set forth in § 1113 for terminating or modifying them. See In re Ionosphere Clubs, Inc., 922 F.2d 984, 990 (2d Cir.1990), cert. denied sub nom. Air Line Pilots Ass’n v. Shugrue, — U.S. —, 112 S.Ct. 50, 116 L.Ed.2d 28 (1991). As a consequence, debtors remain obligated to pay wages and benefits set forth in the agreements as they become due. The nettlesome issue raised by the Motion and the objections thereto concerns the status to be accorded to claims which arise as a result of debtors’ violations of § 1113(f). The status of employee wage claims commonly is determined pursuant to § 507(a). According to movants, claims arising from a violation of § 1113(f) are to be treated “differently” and are to be accorded the “highest priority”. Movants maintain that § 1113(f), by its express terms, supersedes other Code provisions and necessitates that employee claims arising as a result of a violation of § 1113(f) are not to be ranked according to § 507(a). It is not altogether clear what movants are claiming when they assert that such claims are to be treated “differently” and enjoy the “highest priority”. At times movants appear to be arguing that claims arising from a violation of § 1113(f) are to be" }, { "docid": "1092225", "title": "", "text": "a scope and effect to § 1113(f). To the extent that these cases fail to carefully circumscribe the scope of § 1113(f) in rendering other Code provisions inoperative, we decline to follow them. In addition, overriding policy reasons cutting to the essence of bankruptcy philosophy militate against granting the moving parties’ prayer for relief. The bankruptcy filing grants a debtor a breathing spell and generally assures that creditors having similar status will be treated similarly. In the case at hand, we have at least two types of employees — i.e., employees covered by a collective bargaining agreement and employees covered by contract. Were we to accept the moving parties’ theory, individuals providing a similar service to these debtors would be treated in dissimilar fashion. One group of unsecured creditors would receive very favorable treatment and probably would be paid one hundred percent (100%) of their claims, whereas the other group of unsecured creditors would likely be paid nothing. Congress obviously did not intend such a result. Had Congress so intended, it would have said so in unequivocal terms. As has been noted, movants at times appear to suggest that their claims also take priority over NBD’s first priority secured claim, and that their claims are to be paid ahead of NBD out of the proceeds realized from the sales of the property in which NBD has a first priority security interest. Movants have provided no authority in support of this proposition. They have cited to no Code provisions or case law. Instead, movants appear to rely on the same premiss upon which they relied in support of their other contention. Specifically, movants appear to be arguing that § 1113(f), on its own terms, mandates that employee claims arising from a violation of § 1113(f) take precedence over all other claims, including those of holders of first priority secured interests in estate property- It is not necessary at this time for the court to divine the rationale for mov-ants’ contention. The proposition is patently untenable. As has been demonstrated, the priority accorded to employee claims arising from a violation of §" }, { "docid": "17886806", "title": "", "text": "bargaining agreements. Under both benefit plans, an employee’s annual vacation period increases based upon length of service. Accordingly, an employee’s vacation pay claim may reflect services rendered both before and after the petition date. As the debtor acknowledges, the portion which represents services rendered after the filing of the bankruptcy petition is an administrative expense entitled to first priority under 11 U.S.C. §§ 503(b) and 507(a)(1). Schatz Federal Bearings, 5 B.R. at 551. At issue in this proceeding is whether the amount of vacation pay which represents pre-petition employment must be afforded the same status as that which represents post-petition employment. As to nonunion employees whose rights to benefits emanate from Metropolitan’s corporate policy, it is well-settled that the portion of their vacation pay claims which is based upon work performed pre-petition is not entitled to priority administrative expense status. Straus-Duparquet, 386 F.2d at 650-51; Sulmeyer v. Southern California Pipe Trades Trust Fund, 301 F.2d 768 (9th Cir.1962); Chicago Lutheran Hospital, 75 B.R. at 856; Schatz Federal Bearings, 5 B.R. at 553-56. The rights of union members to severance and vacation pay which arise under collective bargaining agreements are regulated by 11 U.S.C. § 1113. The section sets forth the conditions under which a trustee in bankruptcy may assume or reject a collective bargaining agreement. Section 1113(f) provides as follows: No provision of this title shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collective bargaining agreement prior to compliance with the provisions of this section. 11 U.S.C. § 1113(f). Section 1107 extends to the debtor in possession all of the powers and duties of the trustee. Thus, Metropolitan, as debtor in possession, stands in the place of the trustee with respect to 11 U.S.C. § 1113. By its literal terms, section 1113(f) prevents collective bargaining agreements from being modified by the provisions of 11 U.S.C. § 503(b). That is, claims arising out of a collective bargaining agreement may be granted priority status regardless of whether they meet the requirements of 11 U.S.C. §§ 503(b) and 507(a). Thus, 11 U.S.C. § 1113(f) creates" }, { "docid": "1092215", "title": "", "text": "wages and benefits due under the agreements but deny that said failure constitutes a unilateral alteration of the agreements in violation of 11 U.S.C. § 1113(f). Debtors aver they merely “breached” the collective bargaining agreement. In addition, debtors deny that claims arising from a violation of § 1113(f) are entitled to super-priority status and deny that § 1113(f) supersedes § 507(a) of the Bankruptcy Code. Any priority to be accorded employee claims, debtors argue, is subject to the requirements of § 507(a). NBD, a first priority secured creditor with a lien on substantially all of debtors’ personal property, takes no position as to whether movants’ claims should be treated as administrative claims pursuant to § 507(a). It does, however, oppose the motion to the extent that movants seek a determination that employee claims have priority over their interest. NBD denies that § 1113(f) supersedes § 507(a) and argues that § 1113(f) does not accord employee claims arising from a violation of § 1113(f) super-priority status ahead of the claim of a first priority secured creditor. Movants’ motion will be denied for reasons set forth below. Although debtors’ breach may be the ultimate violation of § 1113(f), employee claims arising therefrom are not entitled to priority without regard to whether those claims qualify as priority claims pursuant to § 507(a). Debtors will not be required at this time to satisfy the claims in full from whatever funds are available. -I- FACTS Local 643 is a party to a collective bargaining agreement with debtor Bentley Industries, Inc. The agreement will expire on January 31, 1992. Local 650 is a party to a collective bargaining agreement with debtor Custom Concepts, Inc. The agreement will expire on October 14, 1992. Local 651 is a party to a collective bargaining agreement with debtor Armstrong Store Fixtures Incorporated. The agreement will expire on January 31, 1992. Debtors have failed to pay wages, vacation and severance pay, health insurance premiums and have failed to remit union dues, as provided for in the respective agreements. At no time since the filing of the bankruptcy petitions have debtors made" }, { "docid": "1183276", "title": "", "text": "filed. To that extent, they were pre-petition obligations. Thus, if Unimet does stand for the proposition that claims under a collective bargaining agreement are afforded protection equivalent to administrative expenses, then pre-petition claims must be included. The language of the Unimet Court did not distinguish between claims arising before or after the filing of the Chapter 11 petition. Unimet simply states that § 1113(f) requires a debtor-in-possession to - comply “with all provisions of the collective bargaining agreement unless■ and until rejection was permitted by the court.” In re Unimet, 842 F.2d 879, 882 (6th Cir.1988). This interpretation of the statute is supported by § 1113(e), which provides for emergency interim relief from a collective bargaining agreement before rejection is approved. If compliance with the collective bargaining agreement were not required prior to court approved rejection, an interim relief clause would not be necessary. The Bankruptcy Court, in ruling that violations of § 1113 must be prioritized according to §§ 503 and 507, followed the reasoning of In re Armstrong Store Fixtures Corp., 135 B.R. 18 (Bkrtcy W.D.Pa.1992). In so doing, the Bankruptcy Court not only misunderstood Unimet, but also the more recent In re Ionosphere, 922 F.2d 984 (2nd Cir.1990). The Ionosphere court followed this Circuit’s reasoning in Unimet by stating that “Congress intended that a collective bargaining agreement remain in effect and that the collective bargaining process continue after the filing of a bankruptcy petition unless and until the debtor complies 'with the provisions of § 1113.” Ionosphere at 990. The Ionosphere court also stated that § 1113(f) “was meant to prohibit the application of any other provision of the Bankruptcy Code when such application would permit a debtor to achieve unilateral termination or modification of a collective bargaining agreement without meeting the requirements of § 1113.” Id. at 991. To subject Appellant’s claims to the priority schedule of § 507 would result in the permission of a unilateral termination or modification of the terms of the agreement without meeting statutory requirements. Some of the employee benefit claims in question would be reduced, and others denied, despite the" }, { "docid": "14771705", "title": "", "text": "parties as to the substance of the CBA provisions. DISCUSSION 1. Standard of Review An order of the district court acting in its appellate capacity in a bankruptcy case is subject to plenary review. Ionosphere I, 922 F.2d at 988. Accordingly, we review the bankruptcy court’s conclusions of law de novo and its findings of fact for clear error. Id. 2. Sections 507 and 1113 On appeal, the Unions have dropped their contention that all claims for vacation pay accrued in 1988 are entitled to third-priority status simply because the pay was earned as of January 1,1989. They continue to maintain, however, that all vacation pay claims are entitled to a superpriority status equivalent at least to an administrative expense. Thus, we must determine whether, as the Unions assert, section 1113(f) of the Code preempts the application of the priority scheme of section 507. We conclude that it does not. Section 1113 of the Code provides the sole means by which a trustee may assume, reject or modify a CBA, Ionosphere I, 922 F.2d at 989. We have described the purposes of this provision as follows: It ensures that the debtor attempt to negotiate with the union prior to seeking to terminate a collective bargaining agreement. § 1113(b). In the event such negotiations fail, it delineates the standard by which an application by the debtor to terminate the collective bargaining agreement is to be judged by the bankruptcy court and establishes a time frame in which this determination is to be made. Id. Section 1113(f) provides that “[n]o provision of [the Code] shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collective bargaining agreement prior to compliance with the provisions of this section.” The Unions argue that section 1113(f) preempts the priority scheme of section 507 and mandates that the claims for pre-petition vacation pay receive first priority as administrative expenses. Whether section 1113(f) trumps section 507 to create a superpriority for claims arising under CBAs is an issue that has divided the courts within this Circuit and elsewhere. Compare In re Roth" }, { "docid": "14771706", "title": "", "text": "989. We have described the purposes of this provision as follows: It ensures that the debtor attempt to negotiate with the union prior to seeking to terminate a collective bargaining agreement. § 1113(b). In the event such negotiations fail, it delineates the standard by which an application by the debtor to terminate the collective bargaining agreement is to be judged by the bankruptcy court and establishes a time frame in which this determination is to be made. Id. Section 1113(f) provides that “[n]o provision of [the Code] shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collective bargaining agreement prior to compliance with the provisions of this section.” The Unions argue that section 1113(f) preempts the priority scheme of section 507 and mandates that the claims for pre-petition vacation pay receive first priority as administrative expenses. Whether section 1113(f) trumps section 507 to create a superpriority for claims arising under CBAs is an issue that has divided the courts within this Circuit and elsewhere. Compare In re Roth Am., Inc., 975 F.2d 949, 954-58 (3d Cir.1992) (holding that vacation pay claims arising under a CBA are subject to the priorities in § 507); In re Armstrong Store Fixtures Corp., 135 B.R. 18, 22 (Bankr. W.D.Pa.1992) (“§ 1113(f) does not supersede and render § 507(a) inoperative when determining the priority to be accorded to employee claims”); In re Murray Indus., 110 B.R. 585, 588 (Bankr.M.D.Fla.1990) (“the better view is one which reconciles § 507 with § 1113”), vacated as moot, 140 B.R. 298 (M.D.Fla.1992) with In re Golden Distribs., Ltd., 152 B.R. 35, 37 (S.D.N.Y.1992) (stating “[t]he only way that the intended result of full performance of the [CBA] can be assured, is if claims arising under the [CBA], are treated as administrative expenses”); United Steelworkers of Am. v. Ohio Corrugating Co., No. 4:90CV0810, 1991 WL 213850, at *1, 1991 U.S.Dist. LEXIS 18815, at *2-*4 (N.D.Ohio March 15, 1991) (section 1113 grants “a priority to collectively bargained claims over and above the priorities set forth in §§ 503 and 507”); In re Arlene’s Sportswear," }, { "docid": "1092214", "title": "", "text": "MEMORANDUM OPINION BERNARD MARKOVITZ, Bankruptcy Judge. Before the Court is a Motion To Pay Claims Pursuant To 1113(f) brought by Locals 650 and 651 of the United Electrical, Radio and Machine Workers of America and by Local 643 of the International Union of Electronic, Electrical, Technical Salaried and Machine and Furniture Workers (hereinafter “movants”). Movants maintain that the above debtors have failed to pay wages and other benefits to their employees as provided for in the collective bargaining agreements (“agreements”) executed by movants and debtors. Said failure, movants contend, constitutes unilateral alteration of the agreements and contravenes 11 U.S.C. § 1113(f). According to movants, employee claims resulting from debtors’ violations of § 1113(f) are entitled to “super-priority” status without regard to whether they qualify as priority claims pursuant to 11 U.S.C. § 507(a). Movants seek to have employee claims paid in full immediately from whatever funds are presently available. As the only available funds are fully encumbered the mov-ants, of necessity, aver they prime the secured creditor. Debtors admit that they have failed to pay wages and benefits due under the agreements but deny that said failure constitutes a unilateral alteration of the agreements in violation of 11 U.S.C. § 1113(f). Debtors aver they merely “breached” the collective bargaining agreement. In addition, debtors deny that claims arising from a violation of § 1113(f) are entitled to super-priority status and deny that § 1113(f) supersedes § 507(a) of the Bankruptcy Code. Any priority to be accorded employee claims, debtors argue, is subject to the requirements of § 507(a). NBD, a first priority secured creditor with a lien on substantially all of debtors’ personal property, takes no position as to whether movants’ claims should be treated as administrative claims pursuant to § 507(a). It does, however, oppose the motion to the extent that movants seek a determination that employee claims have priority over their interest. NBD denies that § 1113(f) supersedes § 507(a) and argues that § 1113(f) does not accord employee claims arising from a violation of § 1113(f) super-priority status ahead of the claim of a first priority secured creditor." }, { "docid": "1117647", "title": "", "text": "to reject! While § 1113 did not directly alter priorities, it indirectly impacted on the priority of prepetition collective bargaining agreement claims. Since most Chapter 11 debtors with union contracts would have to assume those contracts, the employees’ prepetition claims under the collective bargaining agreement would automatically become Chapter 11 administration claims as part of the cure of defaults required to assume an executory contract. § 365(b)(1). After assumption all prepetition and post-petition claims arising under the collective bargaining agreement enjoy Chapter 11 administration claim status even if the contract is thereafter breached or rejected. See, § 365(g). While § 1113 deals extensively with the act of assuming or rejecting a collective bargaining agreement, it says nothing about the effect of assumption or rejection. Therefore, it would appear that § 365 must apply to fill in the gap left by § 1113. See, § 103(f). However, § 365(g) only provides for the treatment of exec-utory contracts or leases assumed or rejected “under this section,” i.e., § 365. The court views the language in § 365(g) as a legislative gaffe, i.e., when Congress added § 1113 in 1984, it forgot to make conforming amendments to other provisions in the Bankruptcy Code, including § 365. Otherwise, the gaps in § 1113 would make it virtually impossible to determine the consequence of the assumption or rejection. . By the same token, if a collective bargaining agreement is rejected, both the damages caused by the rejection and any prepetition collective bargaining agreement claims are treated as prepetition claims entitled to that priority such prepetition claims would otherwise be entitled to. Cf. § 507(a)(3)-(4). There is simply no indication that Congress intended § 1113(f) to be a superpriority provision for claims arising both prepet-ition or postpetition under a collective bargaining agreement, including priority over other Chapter 11 administration claims. If that result was intended, Congress could have amended §§ 507(a)(3) and (4) to give superpriority status to collective bargaining agreement wage and benefit claims. Alternatively, Congress could have provided specifically in § 1113 for superpriority status for collective bargaining agreement wage and benefit claims. Congress" }, { "docid": "1092222", "title": "", "text": "claims arising from a violation of § 1113(f) is without merit. Subsection 1113(f) is “circumstance specific” rather than “section specific”. That is to say, Congress did not identify specific Code provisions whose application' was rendered inoperative by § 1113(f). Whether another Code provision is rendered inoperative by § 1113(f) depends on whether its application in a particular situation would defeat the purpose of § 1113(f). See In re Ionosphere Clubs, Inc., 922 F.2d at 991. There is no indication in the legislative history as to whether Congress intended that § 1113(f) supersede § 507(a) and render it inoperative when determining the priority of employee claims resulting from a violation of § 1113(f). Analysis therefore must begin with some elementary principles of statutory construction. “[W]hen two statutes are capable of coexistence, 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, 1993-94, 48 L.Ed.2d 540 (1976) (citation omitted). Consistent application of different statutory provisions, wherever possible, is encouraged in order to avoid the implied repeal of the earlier enactment. See Matter of Lawaetz, 728 F.2d 225, 229 (3rd Cir.1984). If two statutes are irreconcilable, the more recently enacted must be given effect because it is the more recent indication of legislative intent. See Radzanower, 426 U.S. at 154, 96 S.Ct. at 1993. Application of these canons of construction to § 1113(f) and to § 507(a) compels the conclusion that the former does not render the latter inoperative in determining the priority of employee claims arising from a violation of the former. The two provisions can be harmonized. Subsection 507(a) categorizes the claims that are to receive distribution and ranks them ordinally. Subsection 1113(f) is intended to prohibit the application of other Code provisions to the extent that their application would enable a debtor to effect unilateral termination or modification of a collective bargaining agreement without meeting the requirements of the other subsections of § 1113. See In re Ionosphere Clubs, Inc., 922 F.2d at 990-91. To the extent that another Code provision does not enable" }, { "docid": "1092224", "title": "", "text": "a debtor to do so, it is not rendered inoperative by § 1113(f). Application of § 507(a) would not facilitate unilateral termination or alteration by debtors of the agreements. To the contrary, § 507(a) comes into play only after a violation of § 1113(f) has occurred. Once unilateral termination or alteration has taken place, it becomes necessary to categorize and rank for distribution purposes employee claims arising from the violation. It follows from all of this that § 1113(f) does not supersede and render § 507(a) inoperative when determining the priority to be accorded to employee claims arising from a violation of § 1113(f). If a claim is to be treated as an administrative claim, for instance, it must qualify as such pursuant to § 507(a)(1). Those cases which have held that claims arising from a violation of § 1113(f) do not have to qualify under § 507(a)(1) in order to be accorded administrative priority — e.g., In re Unimet Corp., 842 F.2d 879, 884 (6th Cir.1988) and its progeny — erroneously ascribe too great a scope and effect to § 1113(f). To the extent that these cases fail to carefully circumscribe the scope of § 1113(f) in rendering other Code provisions inoperative, we decline to follow them. In addition, overriding policy reasons cutting to the essence of bankruptcy philosophy militate against granting the moving parties’ prayer for relief. The bankruptcy filing grants a debtor a breathing spell and generally assures that creditors having similar status will be treated similarly. In the case at hand, we have at least two types of employees — i.e., employees covered by a collective bargaining agreement and employees covered by contract. Were we to accept the moving parties’ theory, individuals providing a similar service to these debtors would be treated in dissimilar fashion. One group of unsecured creditors would receive very favorable treatment and probably would be paid one hundred percent (100%) of their claims, whereas the other group of unsecured creditors would likely be paid nothing. Congress obviously did not intend such a result. Had Congress so intended, it would have said so" }, { "docid": "1092220", "title": "", "text": "accorded administrative priority, regardless of whether they satisfy the requirements of § 507(a)(1). At still other times' movants appear to be arguing that such claims enjoy a priority above and beyond that enjoyed by administrative claims and that they take priority even over first priority secured claims. Employee claims, they appear to be arguing, are to be paid in full from whatever funds are available, whether or not those funds already are encumbered. It is not necessary to determine which of these positions movants are asserting in order for their motion to be resolved. Both interpretations rely upon the premiss that § 1113(f), by its terms, supersedes and thereby renders inoperative other Code provisions for determining the priority to be accorded to claims arising out of a violation of § 1113(f). As shall be seen, this premiss is incorrect. Analysis of the scope and effect to be given to § 1113(f) must begin with the circumstances leading to its enactment. The Supreme Court had held in NLRB v. Bildisco & Bildisco, 465 U.S. 513, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984), that the filing of a bankruptcy petition rendered unenforceable a collective bargaining agreement to which a debtor was a party. Id. at 532, 104 S.Ct. at 1199. As a consequence, a debtor could unilaterally terminate it or alter its provisions prior to seeking court approval for rejection of an executory contract pursuant to 11 U.S.C. § 365(a). Id. at 533-34, 104 S.Ct. at 1199. In response to the Bildisco firestorm, Congress promptly enacted § 1113 so as to provide a detailed and time-specific procedure whereby debtors “may assume or reject a collective bargaining agreement ... Subsection 1113(f) provides that “no provision of this title shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collective bargaining agreement prior to compliance with the provisions of this section. Movants’ contention that the broad language of § 1113(f) (“no provision of this title shall be construed”) supersedes and renders inoperative other Code provisions (§ 507(a) in particular) when determining the status to be accorded to employee" }, { "docid": "1092223", "title": "", "text": "to avoid the implied repeal of the earlier enactment. See Matter of Lawaetz, 728 F.2d 225, 229 (3rd Cir.1984). If two statutes are irreconcilable, the more recently enacted must be given effect because it is the more recent indication of legislative intent. See Radzanower, 426 U.S. at 154, 96 S.Ct. at 1993. Application of these canons of construction to § 1113(f) and to § 507(a) compels the conclusion that the former does not render the latter inoperative in determining the priority of employee claims arising from a violation of the former. The two provisions can be harmonized. Subsection 507(a) categorizes the claims that are to receive distribution and ranks them ordinally. Subsection 1113(f) is intended to prohibit the application of other Code provisions to the extent that their application would enable a debtor to effect unilateral termination or modification of a collective bargaining agreement without meeting the requirements of the other subsections of § 1113. See In re Ionosphere Clubs, Inc., 922 F.2d at 990-91. To the extent that another Code provision does not enable a debtor to do so, it is not rendered inoperative by § 1113(f). Application of § 507(a) would not facilitate unilateral termination or alteration by debtors of the agreements. To the contrary, § 507(a) comes into play only after a violation of § 1113(f) has occurred. Once unilateral termination or alteration has taken place, it becomes necessary to categorize and rank for distribution purposes employee claims arising from the violation. It follows from all of this that § 1113(f) does not supersede and render § 507(a) inoperative when determining the priority to be accorded to employee claims arising from a violation of § 1113(f). If a claim is to be treated as an administrative claim, for instance, it must qualify as such pursuant to § 507(a)(1). Those cases which have held that claims arising from a violation of § 1113(f) do not have to qualify under § 507(a)(1) in order to be accorded administrative priority — e.g., In re Unimet Corp., 842 F.2d 879, 884 (6th Cir.1988) and its progeny — erroneously ascribe too great" }, { "docid": "1133712", "title": "", "text": "decision based upon offerings and is thereafter requested to reconsider based upon new facts or new theories. The decision of January 2, 1992 was based upon the offerings of December 12, 1991, and will not be reconsidered. -I- FACTS Movants are parties to collective bargaining agreements with the above debtors. On October 24, 1991, movants filed a motion to pay claims pursuant to 11 U.S.C. § 1113(f) in which they alleged that debtors had violated the collective bargaining agreement by failing to pay wages and other benefits to their employees, as provided for in said agreements. Movants argued that employee claims arising from debtors’ violations of § 1113(f) were entitled to “the highest priority”, without regard as to whether these claims qualified as priority claims pursuant to 11 U.S.C. § 507(a), and should be paid immediately. A Memorandum Opinion and Order of Court were issued on January 2, 1992 in connection the motion. See In re Armstrong Store Fixtures Corp., 135 B.R. 18 (Bankr.W.D.Pa.1992). The court determined that debtors had failed to pay wages and benefits, as provided for in the collective bargaining agreements; and that said failure constituted a unilateral alteration of those agreements and therefore was in violation of 11 U.S.C. § 1113(f). However, the court rejected movants’ contention that § 1113(f) supersedes and renders 11 U.S.C. § 507(a) inoperative when determining the priority to be accorded employee claims arising from a violation of § 1113(f). The motion to pay claims immediately was denied because movants failed to demonstrate at that time that the claims were entitled to “highest priority”. Additionally, it did not then and does not now appear appropriate to order an immediate payment of funds if debtors have no funds with which to comply. If funds were available but were encumbered, it did not then and does not now appear lawful to utilize those encumbered funds to pay this creditor. Finally, it appeared to the court that utilizing movants theory could lead to an absurd result. Specifically, one type of worker could provide a service and be paid in full solely because he was covered" }, { "docid": "1092221", "title": "", "text": "S.Ct. 1188, 79 L.Ed.2d 482 (1984), that the filing of a bankruptcy petition rendered unenforceable a collective bargaining agreement to which a debtor was a party. Id. at 532, 104 S.Ct. at 1199. As a consequence, a debtor could unilaterally terminate it or alter its provisions prior to seeking court approval for rejection of an executory contract pursuant to 11 U.S.C. § 365(a). Id. at 533-34, 104 S.Ct. at 1199. In response to the Bildisco firestorm, Congress promptly enacted § 1113 so as to provide a detailed and time-specific procedure whereby debtors “may assume or reject a collective bargaining agreement ... Subsection 1113(f) provides that “no provision of this title shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collective bargaining agreement prior to compliance with the provisions of this section. Movants’ contention that the broad language of § 1113(f) (“no provision of this title shall be construed”) supersedes and renders inoperative other Code provisions (§ 507(a) in particular) when determining the status to be accorded to employee claims arising from a violation of § 1113(f) is without merit. Subsection 1113(f) is “circumstance specific” rather than “section specific”. That is to say, Congress did not identify specific Code provisions whose application' was rendered inoperative by § 1113(f). Whether another Code provision is rendered inoperative by § 1113(f) depends on whether its application in a particular situation would defeat the purpose of § 1113(f). See In re Ionosphere Clubs, Inc., 922 F.2d at 991. There is no indication in the legislative history as to whether Congress intended that § 1113(f) supersede § 507(a) and render it inoperative when determining the priority of employee claims resulting from a violation of § 1113(f). Analysis therefore must begin with some elementary principles of statutory construction. “[W]hen two statutes are capable of coexistence, 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, 1993-94, 48 L.Ed.2d 540 (1976) (citation omitted). Consistent application of different statutory provisions, wherever possible, is encouraged in order" }, { "docid": "1117648", "title": "", "text": "as a legislative gaffe, i.e., when Congress added § 1113 in 1984, it forgot to make conforming amendments to other provisions in the Bankruptcy Code, including § 365. Otherwise, the gaps in § 1113 would make it virtually impossible to determine the consequence of the assumption or rejection. . By the same token, if a collective bargaining agreement is rejected, both the damages caused by the rejection and any prepetition collective bargaining agreement claims are treated as prepetition claims entitled to that priority such prepetition claims would otherwise be entitled to. Cf. § 507(a)(3)-(4). There is simply no indication that Congress intended § 1113(f) to be a superpriority provision for claims arising both prepet-ition or postpetition under a collective bargaining agreement, including priority over other Chapter 11 administration claims. If that result was intended, Congress could have amended §§ 507(a)(3) and (4) to give superpriority status to collective bargaining agreement wage and benefit claims. Alternatively, Congress could have provided specifically in § 1113 for superpriority status for collective bargaining agreement wage and benefit claims. Congress certainly knows how to specify superpriority for any group of claims when it wants to. See, e.g., §§ 364(b)(1), 507(b), 726(b). There is no evidence that Congress intended § 1113(f) to be a superpriority provision. In fact, what § 1113(f) does is make clear what the rest of § 1113 implies, i.e., a Chapter 11 trustee (or debtor in possession) may not alter or terminate any of the terms or conditions of a collective bargaining agreement unless and until given permission to do so by the bankruptcy court after compliance with all of the provisions of § 1113. In fact, while the debtor in possession in this ease, by failing to make payments when due may have breached the collective bargaining agreement, the debtor has neither altered nor terminated the collective bargaining agreement. No term of the contract has been altered. No rights under the contract have been terminated. The contract is exactly the same collective bargaining agreement the parties entered into before the Chapter 11 case. Therefore, the debtor has not violated § 1113(f)." }, { "docid": "14771707", "title": "", "text": "Am., Inc., 975 F.2d 949, 954-58 (3d Cir.1992) (holding that vacation pay claims arising under a CBA are subject to the priorities in § 507); In re Armstrong Store Fixtures Corp., 135 B.R. 18, 22 (Bankr. W.D.Pa.1992) (“§ 1113(f) does not supersede and render § 507(a) inoperative when determining the priority to be accorded to employee claims”); In re Murray Indus., 110 B.R. 585, 588 (Bankr.M.D.Fla.1990) (“the better view is one which reconciles § 507 with § 1113”), vacated as moot, 140 B.R. 298 (M.D.Fla.1992) with In re Golden Distribs., Ltd., 152 B.R. 35, 37 (S.D.N.Y.1992) (stating “[t]he only way that the intended result of full performance of the [CBA] can be assured, is if claims arising under the [CBA], are treated as administrative expenses”); United Steelworkers of Am. v. Ohio Corrugating Co., No. 4:90CV0810, 1991 WL 213850, at *1, 1991 U.S.Dist. LEXIS 18815, at *2-*4 (N.D.Ohio March 15, 1991) (section 1113 grants “a priority to collectively bargained claims over and above the priorities set forth in §§ 503 and 507”); In re Arlene’s Sportswear, Inc., 140 B.R. 25, 27-28 (Bankr.D.Mass.1992). We find the Third Circuit’s holding in Roth — that sections 1113(f) and 507 can be reconciled — to be the better reasoned position and the one most consistent with our analysis of the preemptive scope of section 1113(f) in Ionosphere I. In Ionosphere I, we held that section 1113(f) precluded the application of the automatic stay provisions of section 362 to circumvent Eastern’s obligation under a CBA to arbitrate a dispute with ALPA, 922 F.2d at 992, but that it did not preclude the stay of an action brought by ALPA in the Southern District of Florida to enjoin Eastern from “wet-leasing” aircraft to replace Eastern aircraft that were grounded due to striking workers, id. at 994-95. We recognized that section 1113(f) was intended to reverse that portion of the decision in NLRB v. Bildisco & Bildisco, 465 U.S. 513, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984), in which the Supreme Court held that a CBA was an executory contract which the trustee could unilaterally reject pursuant to" }, { "docid": "1092219", "title": "", "text": "112 S.Ct. 50, 116 L.Ed.2d 28 (1991). As a consequence, debtors remain obligated to pay wages and benefits set forth in the agreements as they become due. The nettlesome issue raised by the Motion and the objections thereto concerns the status to be accorded to claims which arise as a result of debtors’ violations of § 1113(f). The status of employee wage claims commonly is determined pursuant to § 507(a). According to movants, claims arising from a violation of § 1113(f) are to be treated “differently” and are to be accorded the “highest priority”. Movants maintain that § 1113(f), by its express terms, supersedes other Code provisions and necessitates that employee claims arising as a result of a violation of § 1113(f) are not to be ranked according to § 507(a). It is not altogether clear what movants are claiming when they assert that such claims are to be treated “differently” and enjoy the “highest priority”. At times movants appear to be arguing that claims arising from a violation of § 1113(f) are to be accorded administrative priority, regardless of whether they satisfy the requirements of § 507(a)(1). At still other times' movants appear to be arguing that such claims enjoy a priority above and beyond that enjoyed by administrative claims and that they take priority even over first priority secured claims. Employee claims, they appear to be arguing, are to be paid in full from whatever funds are available, whether or not those funds already are encumbered. It is not necessary to determine which of these positions movants are asserting in order for their motion to be resolved. Both interpretations rely upon the premiss that § 1113(f), by its terms, supersedes and thereby renders inoperative other Code provisions for determining the priority to be accorded to claims arising out of a violation of § 1113(f). As shall be seen, this premiss is incorrect. Analysis of the scope and effect to be given to § 1113(f) must begin with the circumstances leading to its enactment. The Supreme Court had held in NLRB v. Bildisco & Bildisco, 465 U.S. 513, 104" }, { "docid": "1133713", "title": "", "text": "benefits, as provided for in the collective bargaining agreements; and that said failure constituted a unilateral alteration of those agreements and therefore was in violation of 11 U.S.C. § 1113(f). However, the court rejected movants’ contention that § 1113(f) supersedes and renders 11 U.S.C. § 507(a) inoperative when determining the priority to be accorded employee claims arising from a violation of § 1113(f). The motion to pay claims immediately was denied because movants failed to demonstrate at that time that the claims were entitled to “highest priority”. Additionally, it did not then and does not now appear appropriate to order an immediate payment of funds if debtors have no funds with which to comply. If funds were available but were encumbered, it did not then and does not now appear lawful to utilize those encumbered funds to pay this creditor. Finally, it appeared to the court that utilizing movants theory could lead to an absurd result. Specifically, one type of worker could provide a service and be paid in full solely because he was covered by a collective bargaining agreement, whereas another worker who is not covered by said agreement, but provides a similar service for the same employer, might receive nothing. We envision the following possible scenario. Employees A and B both come to work wearing their employer’s uniform. Employee A works at assembly line I and takes the employer’s product, provides a service, and places it on a table. Thereafter employee B takes said product from the table, provides a similar service, and places it on assembly line II. If A were covered by a collective bargaining agreement and B not, then A might be paid in full in bankruptcy whereas B might receive nothing. While this example is certainly extreme, it is certainly not impossible or improbable. Had Congress truly intended such a result, it would have said so in clear, unequivocal language. Movants subsequently filed the motion to reconsider which is presently before the court. The gist of the legal theory offered in support of the present motion is vague and is not easily understood or" }, { "docid": "1117649", "title": "", "text": "certainly knows how to specify superpriority for any group of claims when it wants to. See, e.g., §§ 364(b)(1), 507(b), 726(b). There is no evidence that Congress intended § 1113(f) to be a superpriority provision. In fact, what § 1113(f) does is make clear what the rest of § 1113 implies, i.e., a Chapter 11 trustee (or debtor in possession) may not alter or terminate any of the terms or conditions of a collective bargaining agreement unless and until given permission to do so by the bankruptcy court after compliance with all of the provisions of § 1113. In fact, while the debtor in possession in this ease, by failing to make payments when due may have breached the collective bargaining agreement, the debtor has neither altered nor terminated the collective bargaining agreement. No term of the contract has been altered. No rights under the contract have been terminated. The contract is exactly the same collective bargaining agreement the parties entered into before the Chapter 11 case. Therefore, the debtor has not violated § 1113(f). CONCLUSION Thus, the prepetition claims of the Union on behalf of its members are entitled to no priority whatsoever unless the debtor or trustee assumes the contract. If the debt- or or trustee assumes the collective bargaining agreement, prepetition and postpe-tition claims enjoy administrative priority. § 365(b)(1). If the debtor is allowed to reject the collective bargaining agreement under § 1113, the employees’ prepetition claims enjoy no priority whatsoever. If the debtor elects to, or is forced to, assume the collective bargaining agreement under § 1113, the employees’ claims, both prepetition and postpetition enjoy administrative priority. Of course, if the case fails and is converted to Chapter 7, § 1113 does not apply. See, § 103(f). See also § 365. In Chapter 7 cases, collective bargaining agreements are treated the same as any other executory contract. See, § 103(f). It is worth noting that if a collective bargaining agreement is not assumed by a Chapter 7 trustee within sixty days after the order for relief, it is automatically rejected. § 365(d)(1). Since § 1113(f) does" } ]

[ { "docid": "23120751", "title": "", "text": "together the amended complaint and the affidavits filed by appellant in the summary judgment proceeding, we find sufficient particulars stated with regard to the fraud averments to meet the requirements of rule 9(b). Any additional information appellees may desire concerning the circumstances relied upon to establish fraud may be sought in pretrial discovery proceedings. The judgment is reversed. . Section 10(b) and rule 10b-5 are quoted in Matheson v. Armbrust, 9 Cir., 284 F.2d 670, 672 notes 1, 2. Section 27 provides in part that the district courts shall have jurisdiction of all suits in equity and actions at law brought to enforce any liability or duty created by the 1934' act or the rules and regulations thereunder. . Errion v. Connell, 9 Cir., 236 F.2d 447; Fratt v. Robinson, 9 Cir., 203 F.2d 627, 37 A.L.R.2d 636. . Had we been of the view that Matheson should not be adhered to, this opinion would not have been filed, but we would have taken steps to have the case reheard en banc. See 9th Cir., Rule 23, 28 U.S.C.A. A decision of this court can be overruled only in en banc proceedings. Upton v. Com’r, 9 Cir., 283 F.2d 716, 723. . Hura v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148; Romero v. International Term Operating Co., 358 U.S. 354, 380, 79 S.Ct. 468, 3 L.Ed.2d 368. . This argument has at best only partial application here since a showing of common-law fraud is not essential to establish that part of the claim which is based on section 10(b) and rule 10b-5." } ]

[ { "docid": "4235278", "title": "", "text": "forum under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. Similarly in actions deemed equitable, but in absence of limitation, the state doctrine of laches was held to apply in Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079. Although the Supreme Court has laid down no general rule governing concurrent jurisdiction in a diversity case, Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602; and dictum in Russell v. Todd, 309 U.S. 280, 60 S.Ct. 527, 84 L.Ed. 754, dealing with federally created rights, the Third Circuit has ruled, a fortiori, the statute which bars the legal right also bars the equitable. Overfield v. Pennroad Corporation, 3 Cir., 146 F.2d 889. Both the applicable Penn-sylvania law and the weight of legal opinion were found in that case to be in ac-cord. In cases coming within its con-current jurisdiction the Delaware Court of Chancery has considered itself bound to apply the statute controlling actions at law, Bovay v. H. M. Byllesby & Co., 27 Del.Ch. 33, 29 A.2d 801, except under special circumstances, Bovay v. H. N. Byllesby & Co., 27 Del.Ch. 381, 38 A.2d 808,174 A.L.R. 1201. . Osborne v. Mallory, D.C.S.D.N.Y., 86 F. Supp. 869; Fischman v. Raytheon Mfg. Co., 2 Cir., 188 F.2d 783; Northern Trust Co. v. Essaness Theatres Corp., D.C.N.D.Ill., 103 F.Supp. 954; Fratt v. Robinson, 9 Cir., 203 F.2d 627, 37 A.L.R.2d 636. Also see Seaboard Terminals Corp. v. Standard Oil Co., D.C.N.Y., 24 F.Supp. 1018; Dipson Theatres v. Buffalo Theatres, D.C.N.Y., 8 F.R.D. 86. . Per Judge Goodrich in Overfield v. Pennroad Corporation, 3 Cir., 146 F.2d 889, 895, note 12. . See 53 C.J.S., Limitations of Actions, § 83, p. 1052. . Fratt v. Robinson, 9 Cir., 203 F.2d 627, 635, 37 A.L.R.2d 636: “To hold otherwise would be paying tribute to form inconsistent with the spirit and substance of the rule.” Accord: Thomas v. The Pick Hotels Corp., 10 Cir., 224 F.2d 664. . See Grier v. Dehan, 5 Houst, Del., 401; 2 Woolley, Delaware Practice §§" }, { "docid": "11567970", "title": "", "text": "section 10(b) is necessary to accomplish both that section’s purpose and the 1934 Act’s general purpose of establishing “reasonably complete and effective” control over securities transactions. Id. at 632. In gauging the potential of section 10(b) actions to deter fraudulent practices, we placed particular emphasis on the fact that violations would be redressable in federal court. See id. at 631, 632. We have reaffirmed our holding in Fratt in Ellis v. Carter, 291 F.2d 270 (9th Cir.1961); Mathe- son v. Armbrust, 284 F.2d 670 (9th Cir.1960), cert. denied, 365 U.S. 870, 81 S.Ct. 904, 5 L.Ed.2d 860 (1961); and in Errion v. Connell, 236 F.2d 447 (9th Cir.1956). The Fratt rationale views the 1933 and 1934 Acts as a comprehensive scheme to regulate securities, see Fratt, 203 F.2d at 63—32; accord Herman & MacLean v. Huddleston, 459 U.S. 375, 380, 103 S.Ct. 683, 686, 74 L.Ed.2d 548 (1983). Other circuits have adopted Fratt’s reasoning and have similarly stressed the need for judicial control over securities transactions. See Jordan Building Corp. v. Doyle, O’Connor & Co., 401 F.2d 47, 49 (7th Cir.1968), and Brouk v. Managed Funds, Inc., 286 F.2d 901, 907 (8th Cir.1961) , vacated as moot, 369 U.S. 424, 82 S.Ct. 878, 8 L.Ed.2d 6 (1962). The Supreme Court used similar reasoning in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 95 S.Ct. 1917, 1922, 44 L.Ed.2d 539 (1975), and J.I. Case Company v. Borak, 377 U.S. 426, 432, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964) (private enforcement of Rule 10b-5 may “[provide] a necessary supplement to Commission action”). The express lesson drawn by the Supreme Court is that the 1933 and 1934 Acts are interrelated components of the federal securities regulation scheme. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 206, 96 S.Ct. 1375, 1387, 47 L.Ed.2d 668 (1976). They are to be given “a cumulative construction” which “furthers their broad remedial purposes.” Herman, 459 U.S. at 386, 103 S.Ct. at 689. This same rationale also has been influential in deciding other questions of section 10(b) liability and interpreting its remedial purposes broadly. See," }, { "docid": "21210076", "title": "", "text": "to give a defrauded buyer an identical right to recover under the 1934 Act and Rule X-10B-5, particularly as the conditions and limitations imposed by the 1933 Act are lacking in the 1934 Act. Defendants recognize that the courts have held with virtual unanimity that a defrauded seller is entitled to sue civilly under Section 10 (b) of the 1934 Act and Rule X-10B-5, but they argue that precedents supporting such right are irrelevant since no comparable right to recover was granted to a defrauded seller by the 1933 Act. Defendants argue further that plaintiff is not entitled to recover under Section 12(2) of the 1933 Act because prior to suit it had not tendered to Redwall the Pineda Club, Inc., note as defendants say Section 12(2) requires. The argument that no recovery can be had by a defrauded buyer under Section 10(b) of the 1934 Act and Rule X-10B-5 because of the specific civil remedy accorded to a buyer by Section 12(2) of the 1933 Act was considered and rejected in Ellis v. Carter, 291 F.2d 270, 272-273 (9th Cir. 1961). There the court painstakingly analyzed the argument which is now presented. It recognized that “inescapable anomalies” exist regardless of whether Section 12(2) of the 1933 Act is construed to place a limitation upon a buyer’s right to recover under Rule X-10B-5 or the opposite view is adopted. It concluded, however, that the most desirable result was to permit a buyer to sue under Rule X-10B-5 free of any restriction to be implied from the 1933 Act. Earlier cases reached the same conclusion. Matheson v. Armbrust, 284 F.2d 670, 674 (9th Cir. 1960); cert. den. 365 U.S. 870, 81 S.Ct. 904, 5 L.Ed.2d 860 (1961); Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787 (2d Cir. 1951) ; Texas Continental Life Ins. Co. v. Bankers Bond Company, 187 F.Supp. 14 (W.D.Ky.1960); Osborne v. Mallory, 86 F.Supp. 869, 879 (S.D.N.Y.1949). Rosenberg v. Globe Aircraft Corp., 80 F.Supp. 123 (E.D.Pa.1948) and Montague v. Elec tronic Corporation, 76 F.Supp. 933 (S.D.N.Y.1948) express a contrary point of view. The reasoning of the court" }, { "docid": "2947830", "title": "", "text": "or with section 16. In any event, in a diversity case we are bound by the latest pronouncements of a state Supreme Court. The period of limitations applicable to plaintiffs’ federal claim under the Securities Exchange Act of 1934 must likewise be determined by reference to Michigan law since none is provided by the Act. Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280 (1895); Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241 (1906); Englander Motors, Inc. v. Ford Motor Co., 293 F.2d 802 (6th Cir. 1961). In such cases the Federal Courts must choose among the several state statutes of limitation and apply that one which best effectuates the federal policy at issue. International Union, United Automobile, etc., Workers, AFL-CIO v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). While several courts have considered the question of a limitation period for federal securities fraud actions under section 10(b), none has applied the provisions of the local Blue Sky Law in this regard. Janigan v. Taylor, 344 F.2d 781 (1st Cir. 1965); Fratt v. Robinson, 203 F.2d 627, 37 A.L.R.2d 636 (9th Cir. 1953); Azalea Meats, Inc. v. Muscat, 246 F.Supp. 780 (S.D.Fla.1965); Connelly v. Balkwill, 174 F.Supp. 49 (N.D.Ohio 1959) aff’d 279 F.2d 685 (6th Cir. 1960). In Fratt v. Robinson, supra, the Ninth Circuit compared the action under section 10(b) to the traditional common law fraud action and so applied the state fraud statute of limitations. This decision was followed by that Court in Er-rion v. Connell, 236 F.2d 447 (9th Cir. 1956). Although in some cases the local Blue Sky Law might be the more appropriate point of reference, in the present case the Michigan law contains no provision similar to section 10(b) of the federal law. Thus, the normal six-year period of M.S.A. § 27A.5813 should apply despite the fact that actions under section 10(b) are not exactly the same as common law fraud actions. Since we hold that neither of plaintiffs’ two basic claims are" }, { "docid": "15768588", "title": "", "text": "sole remedy is in equity,” and that as a consequence statutes of limitations barring actions at law are inapplicable, for the traditional equitable doctrine of laches controls instead. See Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 90 L.Ed. 743 (1946); Russell v. Todd, 309 U.S. 280, 289, 60 S.Ct. 527, 84 L.Ed. 754 (1940). We disagree. We are not persuaded that plaintiff’s sole remedy is in equity. Rather, we believe this action falls within the rule that where equity jurisdiction is exercised in aid or support of a legal right, or predicated upon a legal cause of action, or where it is concurrent with that at law, the federal court will withhold equitable relief if the forum’s limitation would bar the concurrent legal right. See Russell v. Todd, supra at 289, 60 S.Ct. 527; Cope v. Anderson, 331 U.S. 461, 463-464, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947). See also, 3 Loss, Securities Regulation, 2d ed. at 1771-1773 (1961). As stated by Judge Leahy: “The decisive feature, then, which gives jurisdiction the flavor of concurrency, is not the narrow question of whether formal relief requested in a particular action is equitable or legal, primary or incidental, but the broader determination of whether the federal right in issue may be judicially enforced in any action by means both legal and equitable.” Tobacco & Allied Stocks v. Transamerica Corp., 143 F.Supp. 323, 327 (D.Del.1956), aff’d 244 F.2d 902 (3d Cir. 1957). Petitioner’s complaint charges violations of federal securities laws which under the common law tort doctrine of private action based on violation of a statute and statutory provisions to the effect that every contract made in violation of a federal securities statute or any rule thereunder is void, provide the basis for an implied liability and a civil action at law for damages. See J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Brown v. Bullock, 194 F.Supp. 207 (S.D.N.Y.1961), aff’d 294 F.2d 415 (2d Cir.); Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787 (2d Cir. 1951); Osborne v. Mallory, 86" }, { "docid": "23477963", "title": "", "text": "Reed v. Riddle Airlines, 5 Cir., 1959, 266 F.2d 314, 315; Speed v. Transameriea Corp., D.C.D.Del.1951, 99 F.Supp. 808, modified and affirmed 3 Cir., 1956, 235 F.2d 369. Under the 1933 Act, which contains a specific civil recovery provision, a private cause of action has been implied for violations of the broader anti-fraud provisions of the statute, despite a narrower clause that expressly exempted the particular bonds from the misrepresentation provision. Thiele v. Shields, D.C.S.D.N.Y.1955, 131 F.Supp. 416, 419. The principle of implied liability was applied directly in Fischman v. Raytheon Mfg. Co., 2 Cir., 1951, 188 F.2d 783, involving a stockholders’ action under section 10(b) of the 1934 Act, which forbids the use of fraudulent devices in connection with the purchase and sale of securities. No remedy is expressly granted by that provision to the person aggrieved. The court, per Frank, J., held (at page 787): “Section 10(b) [of the 1934 Act], to be sure, does not explicitly authorize a civil remedy. Since, however, it does make ‘unlawful’ the conduct it describes, it creates such a remedy.” Accord: Hooper v. Mountain States Securities Corp., 5 Cir., 1960, 282 F.2d 195, 200-201; Errion v. Connell, 9 Cir., 1956, 236 F.2d 447, 453-455; Fratt v. Robinson, 9 Cir., 1953, 203 F.2d 627, 37 A.L.R. 2d 636; Slavin v. Germantown Fire Ins. Co., 3 Cir., 1949, 174 F.2d 799, 805-806; Osborne v. Mallory, D.C.S.D.N.Y.1949, 86 F.Supp. 869, 879; Kardon v. National Gypsum Co., D.C.E.D.Pa.1946, 69 F.Supp. 512; Id., D.C.E.D.Pa.1947, 73 F.Supp. 798. Another leading case is Baird v. Franklin, 2 Cir., 1944, 141 F.2d 238, certiorari denied 1944, 323 U.S. 737, 65 S.Ct. 38, 89 L.Ed. 591, interpreting section 6(b) of the 1934 Act which, as judicially construed, makes it the duty of every stock exchange to expel or discipline members for unethical conduct. No private right of action is provided for violation of this duty. In Baird v. Franklin, 2 Cir., 141 F.2d 238, at page 245, sustaining a private right of action, it was said: “The fact that the statute provides no machinery or procedure by which the individual right" }, { "docid": "22466647", "title": "", "text": "how his investment turns out before he decides to invoke the provisions of the Act. See Carr v. Warner, 137 F.Supp. 611, 615 (D. Mass.1955); Nash v. J. Arthur Warner & Co., 137 F.Supp. 615, 618 (D.Mass. 1955); cf. Goldenberg v. Bache & Co., 270 F.2d 675, 681 (5th Cir., 1959). In an action brought under section 10(b) of the Securities Exchange Act of 1934 there is no federal statute of limitations. In Fratt v. Robinson, supra, we applied the applicable state statute of limitations; we have not determined whether laches is also available in a section 10(b) action. Since the right of action created for a violation of section 10(b) may be enforced at law or in equity, it should be subject to the doctrine of laches as well as the statute of limitations. The applicable period of limitation should not depend “on the turn of a word fixed by a plaintiff at the pleading stage. * * * In the final analysis, recourse should be had not to the language of the pleader’s Complaint but to the terms of the federal act granting the right of action and to the remedy which the court can supply. The decisive feature, then, which gives jurisdiction the flavor of concurrency, is not the narrow question of whether formal relief requested in a particular action is equitable or legal, primary or incidental, but the broader determination of whether the federal right in issue may be judicially enforced in any action by means both legal and equitable.” Tobacco and Allied Stocks v. Transamerica Corp., 143 F.Supp. 323, 327 (D.Del.1956), aff’d without consideration of the point, 244 F.2d 902 (3rd Cir., 1957). In Straley we held that laches was not a bar to an action brought under the Securities Act of 1933, 15 U.S.C.A. §§ 77e and 77Z(1). But the cause of action in Straley was governed by a federal statute of limitations, 15 U.S.C.A. § 77m. Where Congress has provided a specific and relatively short statute of limitations, it can be inferred that the federally created limitation is not to be cut short;" }, { "docid": "21970756", "title": "", "text": "fraud cases shall be the statutes of limitations applied to civil actions brought under Section 10(b) of the Act. Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787 (2d Cir. 1951); Fratt v. Robinson, 203 F.2d 627, 634, 37 A.L.R.2d 636 (9th Cir. 1953). In New York, Section 213 of the Civil Practice Law and Rules provides for a statute of limitations with respect to fraud cases as follows: “The following actions must be commenced within six years: ****** (9) an action based upon fraud; the time within which the action must be commenced shall be computed from the time the plaintiff or the person under whom he claims discovered the fraud, or could with reasonable diligence have discovered it.” If plaintiff can bring a cause of action under Section 10(b) of the Act based on the same transaction and facts as his cause under Section 15(c), he would not here be barred from relief despite the fact that his action was commenced more than three years after the date of the alleged violations. Can plaintiff bring an action for violation of Section 10(b) as well as for violation of Section 15(c) alleging the same facts? A party injured by a violation of Section 10(b) of the Act has a civil cause of action against a party violating the statute. Cooper v. North Jersey Trust Co. of Ridgewood, N. J., 226 F.Supp. 972, 978 (S.D.N.Y.1964); Barnett v. Anaconda Co., 238 F.Supp. 766 (S.D.N.Y.1965). “Section 10(b), to be sure, does not explicitly authorize a civil remedy. Since, however, it does make ‘unlawful’ the conduct it describes, it creates such a remedy.” Fischman v. Raytheon Mfg. Co., supra, 188 F.2d at 787. Section 10(b) of the Act is, therefore, an antifraud provision on which an injured buyer may rely when seeking relief. It must be noted, however, that Section 10(b) is only one of three general antifraud provisions of the securities legislation. Professor Loss, 3 Loss, Securities Regulation, 1428-1429 (2 ed. 1961), has described these provisions as follows: “At present, in sum, there are three general antifraud provisions — § 17(a) of" }, { "docid": "21042979", "title": "", "text": "1004, 92 S.Ct. 564, 30 L.Ed.2d 558 (1971); Charney v. Thomas, 372 F.2d 97, 99-100 (6th Cir. 1967); Fratt v. Robinson, 203 F.2d 627, 634-35 (9th Cir. 1953); Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787 (2d Cir. 1951); Jerome v. Ampre Corp. [1978 Transfer Binder] Fed. Sec.L.Rep. (CCH) ¶ 96,343 (D.N.J.1978); Klapmeir v. Peat Marwick, Mitchell & Co., 363 F.Supp. 1212, 1217-18 (D.Mich.1973); Connelly v. Balkwill, 174 F.Supp. 49, 63-64 (N.D.Ohio 1959), aff’d per curiam, 279 F.2d 685 (6th Cir. 1960); Tobacco & Allied Stocks, Inc. v. Transameriea Corp., 143 F.Supp. 323, 327-28 (D.Del.1956), aff’d, 244 F.2d 902 (3d Cir. 1957). See also Janigan v. Taylor, 344 F.2d 781, 783 (1st Cir. 1965), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). We find the reasoning of these cases persuasive. In opposition the defendants invoke several cases in which federal courts have looked to the time-bar of the forum state’s Uniform Securities Act. In some of these cases the plaintiff was a buyer to whom section 410 of the Uniform Securities Act provides a cause of action. Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 124-28 (7th Cir. 1972); Vanderboom v. Sexton, 422 F.2d 1233, 1236-41 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); see Newman v. Prior, 518 F.2d 97, 98-100 (4th Cir. 1975). Since the state law relied upon afforded the complainant a cause of action the adoption of the state policy of repose applicable to that cause of action was arguably correct. The defendants also rely on Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 999-1000 (5th Cir. 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975) and Schaefer v. First National Bank of Lincoln-wood, 509 F.2d 1287, 1293-95 (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976). In these cases the court applied the state statute of limitations applicable to a state statutory cause of action, not the Uniform Securities Act, which largely paralleled section 10(b) and Rule 10b-5. There is no such" }, { "docid": "7525750", "title": "", "text": "sale of the $6. shares. Investment letters were sent to private investors and small business investment corporations. Letters in regard to this issue of stock were also sent to the National Newark and Essex Banking Company and the National State Bank of Newark. Ample evidence of actual sale of the $6. shares is present. The requirement of the use of a manipulative or deceptive device is evidenced by the fact that the directors and officers of Hydromatics, Inc. purchased some of these $6. shares before their participation in this distribution of stock was completed. I therefore conclude that the defendant directors violated Rule X-10B-5. “All that is required to establish a violation of section 10 is a showing that a means, instrumentality ór facility of a kind described in the introductory language of that section was used, and that in connection with that use an act of a kind described in section 10(a) or (b) occurred.” Matheson v. Armbrust, 9 Cir. 1960, 284 F.2d 670, 673, cert. den. 365 U.S. 870, 81 5. Ct. 904, 5 L.Ed.2d 860; citing Errion v. Connell, 9 Cir. 1956, 236 F.2d 447, 455. See also Fratt v. Robinson, 9 Cir. 1953, 203 F.2d 627, 634, 37 A.L.R.2d 636; Stevens v. Vowell, 10 Cir. 1965, 343 F.2d 374, 378-379. RULE X-10B-5 DAMAGES The corporation’s actual damages are recoverable. 15 U.S.C.A. § 78bb(a); Mills v. Sarjem Corp., 133 F. Supp. 753, 770 (D.N.J.1955); Meisel v. North Jersey Trust Co. of Ridgewood, N. J., 216 F.Supp. 469 (S.D.N.Y.1963); Speed v. Transamerica Corp., 135 F.Supp. 176, 186 (D.Del.1955), modified on other grounds, 235 F.2d 369 (3 Cir. 1956). No punitive damages are recoverable. Meisel v. North Jersey Trust Co. of Ridge-wood, N. J., supra. The actual discounts, as applied to the average market price, on the respective material' dates under Rule X-10B-5 were as follows: The expert testimony set forth a wide range of permissive discount which, under the facts here, is neither very helpful nor highly persuasive. I have concluded that a reasonable discount, under all the facts and circumstances of this case, was 20%. The measure" }, { "docid": "22838020", "title": "", "text": "of action was approved by this court in McClure v. Borne Chemical Co., 292 F.2d 824 (3d Cir.), cert. denied, 368 U.S. 939, 82 S.Ct. 832, 7 L.Ed.2d 339 (1961). . See e. g., Fischman v. Raytheon Mfg. Co., 188 F.2d 783 (2d Cir. 1951); Fratt v. Robinson, 203 F.2d 627 (9th Cir. 1953); Speed v. Transamerica Corp., 235 F.2d 369 (3d Cir. 1956); Errion v. Connell, 236 F.2d 447 (9th Cir. 1956); Estate Counseling Serv. Inc. v. Mountain State Sec. Corp., 282 F.2d 195 (5th Cir. 1960), cert. denied 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961); Texas Continental Life Ins. Co. v. Dunne, 307 F.2d 242 (6th Cir. 1962); Boone v. Baugh, 308 F.2d 711 (8th Cir. 1962). . Trussell v. United Underwriters Ltd., 228 F.Supp. 757 (D.Colo.1964). . See Sup’t. of Insurance v. Bankers Life & Casualty Co., 404 U.S. 6, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971); J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). Apparently Section 18 was intended to govern actions for damages based on material misrepresentations. It contains a statute of limitations, specifying that the plaintiff must have had no knowledge of the falsity and must have relied on the statement, and provides for the defenses of good faith and lack of knowledge of the falsehood. This section is not applicable to 10(b) actions, however, since it allows recovery only for statements made “in any application, report, or document filed pursuant to this title or any rule or regulation thereunder * * whereas neither Section 10(b) nor Rule 10b-5 require that “any application, report, or document” be filed. . See, General Time Corp. v. Talley Industries, Inc., 403 F.2d 159, 162 (2d Cir. 1968), cert. denied, 393 U.S. 1026, 89 S.Ct. 631, 21 L.Ed.2d 570 (1969), where for purposes of § 14(a) the test formulated for materiality was: “[w]hether, taking a properly realistic view, there is a substantial likelihood that the misstatement or omission may have led .a stockholder to grant a proxy to the solicitor or to withhold one from the other" }, { "docid": "23477962", "title": "", "text": "evidences a contrary intention. For example, the refusal of the courts to imply a private remedy under the National Labor Relations Act was based upon the fact that the statute by its terms gave the administrative agency the exclusive power to prevent unfair labor practices, and the Congressional reports specifically stated that no private right of action was contemplated. See Amalgamated Utility Workers v. Consolidated Edison Co., 1940, 309 U.S. 261, 267, 269, 60 S.Ct. 561, 84 L.Ed. 738. In a case involving purchases of securities effected in violation of the anti-fraud rules of the 1934 Act, Matheson v. Armbrust, 9 Cir., 1960, 284 F.2d 670, 673, the court held that, where plaintiff has a choice between suing in state or federal court to recover damages for the fraud which defendant perpetrated, “the long-established principle is applicable, that ‘the party who brings a suit is master to decide what law he will rely upon.’ The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716.” Accord: see Reed v. Riddle Airlines, 5 Cir., 1959, 266 F.2d 314, 315; Speed v. Transameriea Corp., D.C.D.Del.1951, 99 F.Supp. 808, modified and affirmed 3 Cir., 1956, 235 F.2d 369. Under the 1933 Act, which contains a specific civil recovery provision, a private cause of action has been implied for violations of the broader anti-fraud provisions of the statute, despite a narrower clause that expressly exempted the particular bonds from the misrepresentation provision. Thiele v. Shields, D.C.S.D.N.Y.1955, 131 F.Supp. 416, 419. The principle of implied liability was applied directly in Fischman v. Raytheon Mfg. Co., 2 Cir., 1951, 188 F.2d 783, involving a stockholders’ action under section 10(b) of the 1934 Act, which forbids the use of fraudulent devices in connection with the purchase and sale of securities. No remedy is expressly granted by that provision to the person aggrieved. The court, per Frank, J., held (at page 787): “Section 10(b) [of the 1934 Act], to be sure, does not explicitly authorize a civil remedy. Since, however, it does make ‘unlawful’ the conduct it describes, it creates" }, { "docid": "23196927", "title": "", "text": "federal courts have long referred to state statutes of limitations in the absence of any applicable federal statute. Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280; Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602; International Union, United Auto, etc., Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192; see also Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 90 L.Ed. 743. This is also true of actions brought under the Federal Securities Exchange Act and SEC Rule 10b-5. See Fratt v. Robinson, 203 F.2d 627, 634, 37 A.L.R.2d 636 (9th Cir. 1953); Errion v. Connell, 236 F.2d 447, 455 (9th Cir. 1956); Tobacco and Allied Stocks, Inc. v. Trans-america Corp., 244 F.2d 902 (3d Cir. 1957); 3 Loss, Securities Regulation, Ch. 11C, pp. 1771 et seq. (1961). In the present case, the parties have agreed that the Indiana 6-year statute governs such actions. Burns’ Indiana Stat.Anno. Section 2-601 (1967 Replacement). The transfer took place in 1957 and this action was not commenced until December 1966, nine years later. Plaintiffs contend, however, that the doctrine of fraudulent concealment of the wrong operates to toll the statute in this case until plaintiff discovered the fraud in 1964 or 1965. The federal doctrine of fraudulent concealment was first announced by the Supreme Court in Bailey v. Glover, 21 Wall. 342, 88 U.S. 342, 22 L.Ed. 636: “ * * * where the party injured by the fraud remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party.” 21 Wall, at 348, 88 U.S. at 348. Although introduced in equity, the rule has equal application in cases involving legal actions. Bailey v. Glover, 21 Wall. 342, 349, 88 U.S. 342, 349, 22 L.Ed. 636 (dictum); Moviecolor Limited v." }, { "docid": "23196926", "title": "", "text": "v. Armbrecht, 327 U.S. 392, 395-396, 66 S.Ct. 582, 90 L.Ed. 743; Russell v. Todd, 309 U.S. 280, 289, 60 S.Ct. 527, 84 L.Ed. 754; Swan v. Board of Higher Education, 319 F.2d 56, 59 (2d Cir. 1963). Under those authorities, the doctrine of laches would not apply even if this plaintiff were still alternatively seeking equitable relief. As stated in Myzel v. Fields, 386 F.2d 718, 742 (8th Cir. 1967), certiorari denied, 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1143, where the plaintiffs also sought damages for violation of Section 10(b) of the Act and Rule 10b-5: “The fact that plaintiffs’ original prayer was for recision or for damages in the alternative would not change the applicability of the state limitations statute as opposed to laches.” Accordingly, the trial court should not have sustained the defense of laches in this case. The Federal Cause of Action Defendants also raised the statute of limitations as a defense in bar of this action. In adjudicating claims for relief “at law” based upon federally created rights, federal courts have long referred to state statutes of limitations in the absence of any applicable federal statute. Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280; Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602; International Union, United Auto, etc., Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192; see also Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 90 L.Ed. 743. This is also true of actions brought under the Federal Securities Exchange Act and SEC Rule 10b-5. See Fratt v. Robinson, 203 F.2d 627, 634, 37 A.L.R.2d 636 (9th Cir. 1953); Errion v. Connell, 236 F.2d 447, 455 (9th Cir. 1956); Tobacco and Allied Stocks, Inc. v. Trans-america Corp., 244 F.2d 902 (3d Cir. 1957); 3 Loss, Securities Regulation, Ch. 11C, pp. 1771 et seq. (1961). In the present case, the parties have agreed that the Indiana 6-year statute governs such actions. Burns’ Indiana Stat.Anno. Section 2-601 (1967 Replacement). The transfer took place in 1957 and this" }, { "docid": "22466640", "title": "", "text": "attached as a part of the action brought by Har-giss in an effort to recover the money he had loaned the corporation. Eventually the entire tract was sold at a substantial loss, and the assets of the corporation were liquidated. Subsequent to the liquidation of the company Dr. Smith brought a suit under the provisions of section 10 of the Securities Exchange Act of 1934, as amended, 15 U.S.C.A. § 78j and Rule X-10B-5 (now Rule 10b-5) of the rules and regulations issued by the Securities and Exchange Commission under that Act, 17 C.F.R. § 240.10b-5. The suit was also based on sections 20 and 29 of the same Act, 15 U.S.C.A. §§ 78t(a) and 78cc. Notwithstanding the fact that neither section 10 nor Rule 10b-5 expressly provide a civil remedy, we have held that a civil cause of action may be brought to enforce this section of the Act. Errion v. Connell, 236 F.2d 447 (9th Cir., 1956); Fratt v. Robinson, 203 F.2d 627, 37 A.L.R.2d 636 (9th Cir., 1953). While the above cited cases involved sellers of securities, we later held that a civil remedy is also available to a purchaser of securities. Ellis v. Carter, 291 F.2d 270 (9th Cir., 1961); Matheson v. Armbrust, 284 F.2d 670 (9th Cir., 1960). In an action brought under section 10(b), common law fraud need not be alleged or ultimately proved. After establishing the use of some means of interstate commerce, the mails, or any national stock exchange facility (this is conceded in the instant case), Rule 10b-5 (b), a proper implementation of section 10(b), only requires proof of a material misstatement or an omission of a material fact in connection with the purchase or sale of any security to make out a prima facie case. See Ellis v. Carter, supra, 291 F.2d at 274; Matheson v. Armbrust, supra, 284 F.2d at 673. The trial court found that appellants failed and omitted to inform Dr. Smith of Hargiss’ resignation and demand for repayment of his money prior to Dr. Smith’s purchase of stock, said facts being material and necessary in order" }, { "docid": "11567969", "title": "", "text": "at 537; see also Weissbuch, 558 F.2d at 836. The Supreme Court has stated in a related context that Congress’ decision to leave section 10(b) intact suggests ratification of a judicial remedy under section 10(b). Herman & MacLean v. Huddle-ston, 459 U.S. 375, 384-86, 103 S.Ct. 683, 688-89, 74 L.Ed.2d 548 (1983); see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 381-82, 102 S.Ct. 1825, 1839, 1840-41, 72 L.Ed.2d 182 (1982) (finding that Congress’ comprehensive amendments to the Commodities Exchange Act was evidence that Congress intended to preserve the implied remedy under the Act). The policies served by judicial enforcement of section 10(b) and Rule 10b-5 reflect the unsuitability of arbitration for such claims. This can be seen in the many opinions of the Supreme Court and courts of appeals involving section 10(b). The leading opinion in this circuit is Fratt v. Robinson, 203 F.2d 627 (9th Cir.1953). We there held that section 10(b) implies a private right of action, primarily because the deterrent effect of private enforcement of section 10(b) is necessary to accomplish both that section’s purpose and the 1934 Act’s general purpose of establishing “reasonably complete and effective” control over securities transactions. Id. at 632. In gauging the potential of section 10(b) actions to deter fraudulent practices, we placed particular emphasis on the fact that violations would be redressable in federal court. See id. at 631, 632. We have reaffirmed our holding in Fratt in Ellis v. Carter, 291 F.2d 270 (9th Cir.1961); Mathe- son v. Armbrust, 284 F.2d 670 (9th Cir.1960), cert. denied, 365 U.S. 870, 81 S.Ct. 904, 5 L.Ed.2d 860 (1961); and in Errion v. Connell, 236 F.2d 447 (9th Cir.1956). The Fratt rationale views the 1933 and 1934 Acts as a comprehensive scheme to regulate securities, see Fratt, 203 F.2d at 63—32; accord Herman & MacLean v. Huddleston, 459 U.S. 375, 380, 103 S.Ct. 683, 686, 74 L.Ed.2d 548 (1983). Other circuits have adopted Fratt’s reasoning and have similarly stressed the need for judicial control over securities transactions. See Jordan Building Corp. v. Doyle, O’Connor & Co.," }, { "docid": "21042978", "title": "", "text": "can not be heard in state court. Thus, the effect of the district court’s ruling was not to accommodate a state policy of repose, as required by governing Supreme Court decisions, but to deprive plaintiff of the only forum which possessed jurisdiction to consider all the legal bases for the relief sought. The question here presented, whether the statute of limitations governing common law fraud should apply in section 10(b) and 14(a) actions has been considered by other courts. The common law fraud statute of limitations was held applicable in Stull v. Bayard, 561 F.2d 429, 431-32 (2d Cir. 1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 783 (1978); Arneil v. Ramsey, 550 F.2d 774, 780 (2d Cir. 1977); IDS Progres sive Fund, Inc. v. First of Michigan Corp., 533 F.2d 340 (6th Cir. 1976); United California Bank v. Salik, 481 F.2d 1012 (9th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973); Mitchell v. Texas Gulf Sulphur Company, 446 F.2d 90,103-04 (10th Cir.), cert. denied, 404 U.S. 1004, 92 S.Ct. 564, 30 L.Ed.2d 558 (1971); Charney v. Thomas, 372 F.2d 97, 99-100 (6th Cir. 1967); Fratt v. Robinson, 203 F.2d 627, 634-35 (9th Cir. 1953); Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787 (2d Cir. 1951); Jerome v. Ampre Corp. [1978 Transfer Binder] Fed. Sec.L.Rep. (CCH) ¶ 96,343 (D.N.J.1978); Klapmeir v. Peat Marwick, Mitchell & Co., 363 F.Supp. 1212, 1217-18 (D.Mich.1973); Connelly v. Balkwill, 174 F.Supp. 49, 63-64 (N.D.Ohio 1959), aff’d per curiam, 279 F.2d 685 (6th Cir. 1960); Tobacco & Allied Stocks, Inc. v. Transameriea Corp., 143 F.Supp. 323, 327-28 (D.Del.1956), aff’d, 244 F.2d 902 (3d Cir. 1957). See also Janigan v. Taylor, 344 F.2d 781, 783 (1st Cir. 1965), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). We find the reasoning of these cases persuasive. In opposition the defendants invoke several cases in which federal courts have looked to the time-bar of the forum state’s Uniform Securities Act. In some of these cases the plaintiff was a buyer to whom section 410 of the Uniform" }, { "docid": "22094500", "title": "", "text": "may be completely innocuous but still sufficient to constitute an offense if connected with the scheme to defraud. Gregory v. United States, 5 Cir., 1958, 253 F.2d 104, 109. And to cause the mails to be used it is sufficient if the use of the mails can reasonably be foreseen though not actually intended. Pereira v. United States, 1954, 347 U.S. 1, 8, 9, 74 S.Ct. 358, 98 L.Ed. 435; see also Abbott v. United States, 5 Cir., 1956, 239 F.2d 310 at page 314. “The statute forbids the use of the mails as a means of consummating frauds, and if the mail is used in its actual execution, it matters not whether it was intended or anticipated.” . Actions under Rule X-10B-5 the applicable statute of limitations is that of the state in which the Federal Court sits. Tobacco & Allied Stocks v. Transamerica Corp., 3 Cir., 1957, 244 F.2d 902; Fratt v. Robinson, 9 Cir., 1953, 203 F.2d 627, 634, 37 A.L.R.2d 636; Connelly v. Balkwill, D.C.N.D.Ohio, 1959, 174 F.Supp. 49, 63-64; Errion v. Connell, 9 Cir., 1956, 236 F.2d 447. . Alabama Code, Title 7, §§ 26 and 42. . See, e. g., Crummer Co. v. DuPont, 5 Cir., 1955, 223 F.2d 238, especially Crummer Co. v. DuPont, 5 Cir., 1958, 255 F.2d 425, reversing a directed verdict after jury trial on the preliminary issue of limitation; after remand it is our understanding the jury found that limitations had run thus putting an end to the litigation. . They cite Fischman v. Raytheon Mfg. Co., 2 Cir., 1951, 188 F.2d 783; Norris & Hirshberg, Inc. v. S. E. C., 1949, 85 U.S. App.D.C. 268, 177 F.2d 228; Fratt v. Robinson, 9 Cir., 1953, 203 F.2d 627; Ward LaFranee Truck Corp., 13 S.E.C. 372, 381. . They cite Phillips v. Malone, 1931, 223 Ala. 381, 136 So. 793; Wogahn v. Stevens, 1940, 236 Wis. 122, 294 N.W. 503, 133 A.L.R. 1033. . Defendants cite United States v. Jones, 10 Cir., 1956, 229 F.2d 84; Boger v. Jones Cotton Co., 1937, 234 Ala. 103, 173 So. 495. . §" }, { "docid": "7702106", "title": "", "text": "Act, creates a cause of action which accrues only to a purchaser or seller of securities, the price of which is affected by the manipulative practices therein proscribed. Hilton Hotels, not plaintiff, is alleged to be the purchaser of the securities involved in this suit. It affirmatively appears that plaintiff did not sell any of the securities involved. Plaintiff is, therefore, without any personal right of action under either of those sections. Her interest is secondary and derivative, and the right alleged is the right of the corporation. Section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. 78j, and Section 17(a) of the Securities Act of 1933, 15 U.S.C. 77q, each declare certain conduct to be unlawful without specifically authorizing actions for damages thereunder. It has been held that civil lia bility under each of those sections is implied by the language which makes the proscribed conduct unlawful. Pfeffer v. Cressaty, S.D.N.Y., 223 F.Supp. 756, and Osborne v. Mallory, S.D.N.Y., 86 F.Supp. 869; Cf., Texas Continental Life Ins. Co. v. Bankers Bond Co., W.D.Ky., 187 F. Supp. 14; Compare, Trussell v. United Underwriters, Ltd., D.Colo., 228 F.Supp. 757, all interpreting Section 17 of the 1933 Act; E. g., Ellis v. Carter, 9 Cir., 291 F.2d 270; Matheson v. Armbrust, 9 Cir., 284 F.2d 670, cert. denied 365 U.S. 870, 81 S.Ct. 904, 5 L.Ed.2d 860; Hooper v. Mountain States Securities Corp., 5 Cir., 282 F.2d 195, cert. denied 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693, and Fischman v. Raytheon Mfg. Co., 2 Cir., 188 F.2d 783, applying Section 10(b) of the 1934 Act. Where it has appeared that a corporation was the party injured by a violation of Section 10(b) of the 1934 Act, the courts have held that a shareholder of that corporation had standing to sue only on a derivative basis. Birnbaum v. Newport Steel Corp., 2 Cir., 193 F.2d 461, cert. denied 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356; Slavin v. Germantown Fire Ins. Co., 3 Cir., 174 F.2d 799, 805-806; Kremer v. Selheimer, E.D.Pa., 215 F.Supp. 549, 552. Though" }, { "docid": "22352400", "title": "", "text": "Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 42 L.Ed. 1540 (1960); Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960); 1 Moore, Federal Practice, U 0.145 [6]. . 15 U.S.C. § 78a et seq. . 15 U.S.C. § 78aa. . Hooper v. Mountain States Sec. Corp., 282 F.2d 195, 205 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed. 2d 693 (1961); Errion v. Connell, 236 F. 2d 447, 455 (9th Cir. 1956); Kane v. Central American Mining & Oil, Inc., 235 F.Supp. 559, 565 (S.D.N.Y.1964); Dauphin Corp. v. Redwell Corp., 201 F. Supp. 466, 469—470 (D.Del.1962); Dauphin Corp. v. Davis, 201 F.Supp. 470, 472 (D.Del.1962); Thiele v. Shields, 131 F. Supp. 416, 420 (S.D.N.Y.1955) ; Coburn v. Warner, 110 F.Supp. 850, 851 (S.D. N.Y.1953). . Eight of the complaints expressly allege violations of § 10(b), and the two others broadly allege violations of the Securities Act of 1934, thereby necessarily including § 10(b). . Vague pleading should not be permitted to serve as camouflage in avoidance of transfer; otherwise a party by means of his ‘“own acts or omissions” might prevent a fully warranted transfer. See Van Dusen v. Barrack, 376 U.S. 612, 623-624, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). Cf. Connecticut Mut. Life Ins. Co. v. Shields, 131 F.Supp. 363, 364 (S.D.N.Y. 1954). . Matheson v. Armbrust, 284 F.2d 670 (9th Cir. 1960), cert. denied, 365 U.S. 870, 81 S.Ct. 904, 5 L.Ed.2d 860 (1961) (telephone calls from forum district); Hooper v. Mountain States Sec. Corp., 282 F.2d 195, 204-205 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961) (telephone call to forum district, and transmission of writing) ; United States v. Riedel, 126 F.2d 81, 83 (7th Cir. 1942) (mailing from forum district); Clapp v. Stearns 6 Co., 229 F.Supp. 305, 307 (S.D.N.Y. 1964) (telephone calls from forum district). And see generally Kane v. Central Am. Mining & Oil, Inc., 235 F.Supp. 559, 565 (S.D.N.Y.1964). . Leber alleges a claim under § 9(a) (2) of the Act, and" } ]

[ { "docid": "17863352", "title": "", "text": "a statute that simply states, as does § 9041(a), that any agency action is reviewable, has displaced the finality test. On the contrary, the Senate Judiciary Committee explained that one purpose of § 704 was “to negative any intention to make reviewable merely preliminary or procedural orders where there is a subsequent and adequate remedy at law available, as is presently the rule.” 1945 Sen. Print 27, APA Leg.Hist. 37 (citations omitted). Moreover, the incorporation of the judicial review procedures of chapter 7 of title 5 through 26 U.S.C. § 9041(b) raises the inference that Congress expected the finality limitation of 5 U.S.C. § 704 to apply. Finally, we note that even if § 9041(b) did not refer to the judicial review procedures of the APA, courts commonly impose a finality requirement where statutes simply provide for judicial review of agency actions. See, e.g., Association of National Advertisers, Inc. v. FTC, 627 F.2d 1151, 1178 (D.C.Cir.1979) (Leventhal, J., concurring), cert, denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980); Rombough v. FAA, 594 F.2d 893, 895 n. 4 (2d Cir.1979); Greene County Planning Bd. v. FPC, 455 F.2d 412, 425-26 (2d Cir.), cert, denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). . The FEC adjusted the amount the Committee was to repay on October 22, 1981, and notified the Committee of the reduction on October 27. . In Abbott Laboratories, the Court found that “the publication of certain regulations by the Commissioner of Food and Drugs was ... final agency action subject to judicial review in an action for declaratory judgment brought prior to any Government action for enforcement.” FTC v. Standard Oil Co., 449 U.S. at 239, 101 S.Ct. at 493. Abbott Laboratories relied in turn on United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956) (FCC regulation stating that an applicant already owning five television licenses could not acquire another was final action; a specific license application need not be before the FCC); Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100" } ]

[ { "docid": "7518580", "title": "", "text": "compel the Forest Service to permit them to amend their buy-out applications to include Mt. Adams’ contracts in their buy-out program. Where, as here, injunctive relief and a declaratory judgment are sought with regard to an administrative determination, the “courts traditionally have been reluctant” to grant such relief unless there is a “controversy ‘ripe’ for judicial resolution.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967) (Abbott) (the “basic rationale” for the ripeness doctrine “is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties”). Under the ripeness doctrine, an agency must have taken “final” action before judicial review is appropriate. 5 U.S.C. § 704; Friedman Bros. Inv. Co. v. Lewis, 676 F.2d 1317, 1319 (9th Cir.1982) (Friedman). “It is the imposition of an obligation or the fixing of a legal relationship that is the indicium of finality of the administrative process.” Getty Oil Co. v. Andrus, 607 F.2d 253, 256 (9th Cir.1979). Indicia of finality include: the administrative action challenged should be a definitive statement of an agency’s position; the action should have a direct and immediate effect on the day-to-day business of the complaining parties; the action should have the status of law; immediate compliance with the terms should be expected; and the question should be a legal one. FTC v. Standard Oil Co., 449 U.S. 232, 239-40, 101 S.Ct. 488, 493, 66 L.Ed.2d 416 (1980) {Standard Oil) (citations omitted). In this case, the Secretary only concluded that “the volume entitlement of Mt. Adams and its affiliates has been applied for and granted by the Regional Forester.” The Secretary never addressed the question of whether Puget Sound and Publishers were prohibited from amending their previously approved buy-out applications. In fact, Puget Sound and Publishers were not parties to Mt. Adams’ administrative appeal. Based on the Secretary’s position in this appeal, Puget Sound and Publishers contend" }, { "docid": "7234941", "title": "", "text": "436 (D.C.Cir.1986) (quoting Federal Trade Comm’n v. Standard Oil Co. of Cal., 449 U.S. 232, 239, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980) (internal quotes omit ted)); see also Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (An agency action is final if it “mark[s] the consummation of the agency’s decisionmaking process” and is “one by which rights or obligations have been determined, or from which legal consequences will flow.” (citations and internal quotes omitted)). IPAA’s complaint not only does not challenge final agency action, it is not at all clear what agency action IPAA purports to challenge. The complaint states that IPAA challenges DOI’s “efforts to collect” royalties on take-or-pay settlement payments. What those “efforts” entail is less than clear. “What is clear, however, is that these “efforts” are not final agency actions fit for judicial review. At best, IPAA’s characterization of DOI’s “efforts” seems analogous to the National Wildlife Federation’s (“NWF”) attempt to challenge the Bureau of Land Management’s (“BLM”) “land withdrawal review program” in Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). NWF used the term “program” to describe BLM’s activities in complying with the Federal Land Management Policy Act of 1976, 43 U.S.C. § 1701 et seq. The Lujan Court explained that “[t]he term ‘land withdrawal review program’ ... does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations.” Lujan, 497 U.S. at 890, 110 S.Ct. 3177. Accordingly, the Court concluded that the program was not “an identifiable action,” id. at 899, 110 S.Ct. 3177, and therefore held that NWF’s claim could not be reviewed under the APA. See id. at 892-93, 110 S.Ct. 3177. Like the “program” in Lujan, the “efforts” that IPAA seeks to challenge do not refer to any particular action taken by DOI, much less to any particular order, regulation, or completed universe of orders or regulations. Cf. Sierra Club v. Peterson, 228 F.3d 559, 566 (5th Cir.2000) (en banc) (“This is not a justiciable challenge because" }, { "docid": "8914175", "title": "", "text": "to challenge the Report. Because we conclude that the Report was not final agency action, and therefore, that the district court lacked subject matter jurisdiction to hear plaintiffs’ claims, Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir.1994), we do not reach the standing issue. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (Brandeis, J., concurring) (“It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”). 5 U.S.C. § 702 of the APA provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” Other than agency action made specifically reviewable by statute, § 704 limits the APA’s non-statutory right of judicial review to final agency action. 5 U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.”). As the Radon Act does not create a specific private right of action, plaintiffs rest their claims for relief on the APA’s general review provisions, 5 U.S.C. §§ 702, 704. See Lujan v. National Wildlife Federation, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). To determine whether the Report is subject to judicial review under the APA, the court must decide whether the Report qualifies as final agency action under the APA. In Federal Trade Comm’n v. Standard Oil Co., 449 U.S. 232, 239-40, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980), the Supreme •Court articulated several factors for determining when agency action is “final” for the purposes of judicial review under the APA: (1) is the agency action a definitive statement of the agency’s position; (2) does the action have direct and immediate legal force requiring parties’ immediate compliance with the agency’s pronouncement; (3) do the challenges to the agency’s actions involve legal issues fit for judicial resolution; and (4) would immediate judicial review speed" }, { "docid": "23297140", "title": "", "text": "delay claim, jurisdiction exists under the general federal question statute, not the APA. See 28 U.S.C. § 1331; see also Dunn-McCampbell Royalty Interest, Inc. v. National Park Serv., 112 F.3d 1283, 1286 (5th Cir.1997). The APA then serves as the waiver of sovereign immunity that allows a private party to sue the government (here, the FEC). See Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir.1994). . Section 706 governs the standards to be applied on review and provides in part that ”[t]he reviewing court shall compel agency action unlawfully withheld or unreasonably delayed.” See 5 U.S.C. § 706; see also Heckler v. Chaney, 470 U.S. 821, 829, 105 S.Ct. 1649, 1654, 84 L.Ed.2d 714 (1985). The district court 'erred, however, in basing Stockman’s claim on section 706 because the provisions of the APA “do not declare self-actuating substantive rights, but rather, ... merely provide a vehicle for enforcing rights which are declared elsewhere.” Perales v. Casillas, 903 F.2d 1043, 1050 n. 4 (5th Cir. 1990); see also El Rescate Legal Servs. v. Executive Office of Immigration Review, 959 F.2d 742, 753 (9th Cir. 1991) (\"There is no right to sue for a violation of the APA in the absence of a relevant statute’ whose violation ‘forms the basis for [the] complaint.’ \" (quoting Lujan v. National Wildlife Fed’n, 497 U.S. 871, 883, 110 S.Ct. 3177, 3185-86, 111 L.Ed.2d 695 (1990))). . Although not dispositive to the question at hand, we note that Congress deleted the requirement that the FEC conduct an \"expeditious\" investigation of \"apparent violation[s]” of the Campaign Act when it amended the Act in 1979. Compare Federal Election Campaign Act Amendments of 1974, Pub.L. No. 93-443, § 208(a), 88 Stat. 1263, 1284 (1974), with Federal Election Campaign Act Amendments of 1979, Pub.L. No. 96-187, § 108, 93 Stat. 1339, 1358-59 (1980). Thus, the only remaining reference to \"expeditious” appears in the \"powers” section of the Act. See 2 U.S.C. §'437d(a). . The FEC can bring a cause of action at the conclusion of its investigation only after the affirmative vote of four members and" }, { "docid": "23494034", "title": "", "text": "F.3d 1108, 1118 (9th Cir.2004) (quoting 5 U.S.C. § 706(2)(A)). Courts apply a “rule of reason” standard in reviewing the adequacy of a NEPA document. Churchill County v. Norton, 276 F.3d 1060,1071 (9th Cir.2001). Through the NEPA process, federal agencies must “carefully consider[ ] detailed information concerning significant environmental impacts,” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989), but they are “not require[d] to do the impractical.” Inland Empire Public Lands Council v. United States Forest Serv., 88 F.3d 754, 764 (9th Cir.1996). Alternatively phrased, the task is to ensure that the agency has taken a “hard look” at the potential environmental consequences of the proposed action. Churchill County, 276 F.3d at 1072. The NEPA statute is accompanied by implementing regulations promulgated by the Council on Environmental Quality (“CEQ”) and found at 40 C.F.R. §§ 1501.1-1508.28. Courts must “to the fullest extent possible” interpret these regulations consistently with the policies embodied in NEPA. Churchill County, 276 F.3d at 1072 (quoting Lathan v. Brinegar, 506 F.2d 677, 687 (9th Cir.1974) (en banc)). Although an agency’s actions under NEPA are subject to careful judicial scrutiny, courts must also be mindful to defer to agency expertise, particularly with respect to scientific matters within the purview of the agency. See Anderson v. Evans, 371 F.3d 475, 489 (9th Cir.2004). As the Supreme Court stated in Citizens to Preserve Overton Park, Inc. v. Volpe, “the ultimate standard of review is a harrow one,” and “[t]he court is not empowered to substitute its judgment for that of the agency.” 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). III. NATIONAL ENVIRONMENTAL POLICY ACT NEPA “is our basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). It is a procedural statute that requires the Federal agencies to assess the environmental consequences of their actions before those actions are undertaken. For “major federal actions significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(2)(C), the agency is required to prepare an environmental impact statement (“EIS”). An EIS is a thorough analysis of" }, { "docid": "21443751", "title": "", "text": "a court are subject to judicial review.” 5 U.S.C. § 704. .Noting that no specific statute authorized review, the district court determined that the plaintiffs must establish that the POC Program was a “final agency action” •within the meaning of the APA. Relying primarily on Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), the district court found that none of the various activities, referred to as the “POC Program,” could be characterized as an agency action much less a “final agency action.” Section 10(a) of the APA, 5 U.S.C. § 702, provides for judicial review of agency actions if two requirements are met. National Wildlife Fed’n, 497 U.S. at 882, 110 S.Ct. at 3185. First, the claimants must identify an “agency action.” Id. “Agency action” includes the failure to act. Id. citing 5 U.S.C. § 551(13). Where, as here, the review is sought under the general review provisions of the APA the agency action must be “final agency action.” Id. citing 5 U.S.C. § 704. Second, the plaintiffs 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" }, { "docid": "5724652", "title": "", "text": "has not been entrusted to the Corps. Where Chevron deference is not applicable and an agency’s conclusion is predominately legal in character, as contrasted to one resting on fact finding or technical expertise, a reasonableness standard of review applies. Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660 (9th Cir.1998); Alaska Wilderness Rec. & Tourism v. Morrison, 67 F.3d 723, 727 (9th Cir.1995). NEPA is intended to assure that federal agencies consider the environmental consequences of their actions. It has been characterized as a statute which imposes procedural “action forcing” obligations on federal agencies, but it does not dictate a particular result. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). It follows that when measuring compliance with NEPA a court looks to see that adequate consideration has been afforded environmental consequences, rather than to see that the decision ultimately taken is in some objective sense correct. E. National Environmental Policy Act Under NEPA, a federal agency is required to prepare an environmental impact statement (“EIS”) for any “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). To determine whether a proposed action significantly affects the quality of the human environment, the federal agency prepares an environmental assessment (“EA”). 40 C.F.R. § 1501.4. An EA is “a concise public document ... that serves to ... [b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” 40 C.F.R. § 1508.9(a)(1). An EA must “include brief discussions of the need for the proposal, of alternatives as required by § 1002(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” Id. at § 1508.9(b). If the agency concludes in the EA that the proposed action will not significantly affect the environment, the agency is not required to prepare an EIS, but instead prepares a “finding of no significant impact” (“FONSI”). 40 C.F.R. § 1508.13. The Decision Document recites that it is the EA for NWP 29. (Decision Document at p." }, { "docid": "3150009", "title": "", "text": "15.1 at 305-06 (3d ed.1994) (citing Ticor Title Ins. Co. v. Federal Trade Comm’n, 814 F.2d 731 (D.C.Cir.1987), in which each of the panel judges relied on a different doctrine in reaching the same result). “Finality and exhaustion are particularly difficult to distinguish. Most cases can be resolved as easily through use of either of the two doctrines. If the petitioner has not yet exhausted an available administrative remedy, the agency’s action is not yet final.” Id. at 306. When, as here, the relevant administrative agency statutory provisions do not directly provide for judicial review, the APA authorizes judicial review only of “final agency action.” 5 U.S.C. § 704; Lujan v. Nat’l Wildlife Federation, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). If there is no “final agency action,” as required by the controlling statute, a court lacks subject matter jurisdiction. Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir.1994). “Agency action” is defined by the APA as including “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). “ ‘Order’ means the whole or a part of a final disposition, whether affirmative, negative, in-junctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.” 5 U.S.C. § 551(6). See Federal Trade Comm’n v. Standard Oil Co. of Calif., 449 U.S. 232, 238 n. 7, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980). Although the APA’s finality requirement is “flexible” and “pragmatic,” Abbott Laboratories v. Gardner, 387 U.S. at 149-50, 87 S.Ct. 1507, 18 L.Ed.2d 681. [a]s a general matter, two conditions must be satisfied for an agency action to be “final”: First, the action must mark the “consummation” of the agency’s de-cisionmaking process[ ]■—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow[.]” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)" }, { "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": "7234940", "title": "", "text": "Procedure Act, 5 U.S.C. § 704, provides for judicial review of final agency action— that is, for a court to have jurisdiction over a case brought pursuant to § 704, the complaint must challenge a final action of an agency. See Public Citizen, 970 F.2d at 918. As we stated in DRG Funding Corp. v. Secretary of Housing & Urban Development, 76 F.3d 1212 (D.C.Cir.1996), “[t]he requirement of a final agency action has been considered jurisdictional. If the agency action is not final, the court therefore cannot reach the merits of the dispute.” Id. at 1214 (citation omitted). The APA defines agency action to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). In determining whether such action is final, we consider “whether the agency’s position is ‘definitive’ and whether it has a ‘direct and immediate ... effect on the day-to-day business’ of the parties.” Ciba-Geigy Corp. v. United States Envtl. Protection Agency, 801 F.2d 430, 436 (D.C.Cir.1986) (quoting Federal Trade Comm’n v. Standard Oil Co. of Cal., 449 U.S. 232, 239, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980) (internal quotes omit ted)); see also Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (An agency action is final if it “mark[s] the consummation of the agency’s decisionmaking process” and is “one by which rights or obligations have been determined, or from which legal consequences will flow.” (citations and internal quotes omitted)). IPAA’s complaint not only does not challenge final agency action, it is not at all clear what agency action IPAA purports to challenge. The complaint states that IPAA challenges DOI’s “efforts to collect” royalties on take-or-pay settlement payments. What those “efforts” entail is less than clear. “What is clear, however, is that these “efforts” are not final agency actions fit for judicial review. At best, IPAA’s characterization of DOI’s “efforts” seems analogous to the National Wildlife Federation’s (“NWF”) attempt to challenge the Bureau of Land Management’s (“BLM”) “land withdrawal review program” in Lujan v." }, { "docid": "2394162", "title": "", "text": "Adventist’s activities were “in or affecting interstate commerce” was a fact-based question that could not be resolved prior to discovery. Meanwhile, Ukiah Valley and AHS/West brought this action in the district court on December 19, 1989. They sought an emergency restraining order and expedited hearing of a motion for a preliminary injunction. On December 20, 1989, United States District Judge Thelton E. Henderson denied their motion for a temporary restraining order. On January 16, 1990, Judge Alfonso Zirpoli denied their motion for a preliminary injunction, and ruled that the issuance of the FTC complaint did not constitute “final agency action” under FTC v. Standard Oil Co., 449 U.S. 232, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980), such that it is subject to judicial review in the district court. II We have jurisdiction of this appeal under 28 U.S.C. §§ 1291, 1292(a)(1) and 1294. The denial of the motion for a preliminary injunction will be reversed only if the district court abused its discretion or based its decision upon an erroneous legal standard or clearly erroneous finding of fact. Vision Sports, Inc. v. Melville Corp., 888 F.2d 609, 612 (9th Cir.1989). A dismissal for lack of jurisdiction is reviewed de novo. Assiniboine & Sioux Tribes v. Board of Oil & Gas Conservation, 792 F.2d 782, 787 (9th Cir.1986). III Ukiah Valley and AHS/West invoke Section 10(c) of the Administrative Procedure Act (“APA”), 5 U.S.C. § 704, which provides, in pertinent part: Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. There is no provision making the FTC’s issuance of an administrative complaint “reviewable by statute.” Thus, the critical inquiry in this case is whether the issuance of the complaint constitutes “final agency action for which there is no other adequate remedy in a court.” Id.; see FTC v. Standard Oil Co., 449 U.S. 232, 101 S.Ct. 488, 66 L.Ed.2d 416" }, { "docid": "7518581", "title": "", "text": "that is the indicium of finality of the administrative process.” Getty Oil Co. v. Andrus, 607 F.2d 253, 256 (9th Cir.1979). Indicia of finality include: the administrative action challenged should be a definitive statement of an agency’s position; the action should have a direct and immediate effect on the day-to-day business of the complaining parties; the action should have the status of law; immediate compliance with the terms should be expected; and the question should be a legal one. FTC v. Standard Oil Co., 449 U.S. 232, 239-40, 101 S.Ct. 488, 493, 66 L.Ed.2d 416 (1980) {Standard Oil) (citations omitted). In this case, the Secretary only concluded that “the volume entitlement of Mt. Adams and its affiliates has been applied for and granted by the Regional Forester.” The Secretary never addressed the question of whether Puget Sound and Publishers were prohibited from amending their previously approved buy-out applications. In fact, Puget Sound and Publishers were not parties to Mt. Adams’ administrative appeal. Based on the Secretary’s position in this appeal, Puget Sound and Publishers contend that the Forest Service will not permit them to amend their applications. “Agency advocacy in a judicial proceeding is obviously not such agency action as would be subject to judicial review under the Administrative Procedure Act_ Judicial review of administrative action under the Administrative Procedure Act is limited to orders of definitive character dealing with the merits of proceedings before an administrative agency.” Phillips for and on Behalf of N.L.R.B. v. United Workers of America, Dist. 19, 218 F.Supp. 103, 107 (D.C.Tenn.1963). Until the Forest Service acts, the agency’s action is speculative at best. Since the agency has not acted and there is no effect on the day-to-day business of the appellants, there is no final agency action subject to judicial review. 5 U.S.C. § 704. Accordingly, a challenge to the agency’s possible decision to prohibit amendments to previously approved buyout applications is premature, and as such, is not ripe for judicial review. See Standard Oil, 449 U.S. at 239-45, 101 S.Ct. at 493-95. AFFIRMED. . In 1978, Mt. Adams entered into a contract with" }, { "docid": "22205815", "title": "", "text": "action will endanger their interests. See Churchill County, 150 F.3d at 1078 (to establish causation, a plaintiff need only show a “ ‘reasonable probability of the challenged action’s threat to its concrete interest.’ ”). In order to establish redressability, plaintiffs asserting the inadequacy of an agency’s EIS, as Plaintiffs do here, need not show that further analysis by the government would result in a different conclusion. See Hall v. Norton, 266 F.3d 969, 977 (9th Cir.2001). Rather, they need only show that the decision could be influenced by the environmental considerations that NEPA requires an agency to study. Id. NEPA’s implementing regulations require an EIS to include the economic effects of a federal action, and its proximity to “prime farmlands.” See 40 C.F.R. § 1508.8 (“effects” include economic effects); 40 C.F.R. § 1508.27(requiring consideration of “unique characteristics of geographic area such as proximity to ... prime farmlands.”). Therefore, CALFED’s decision to convert agricultural land and water to other uses could be influenced by an environmental analysis that properly considered the above effects. Accordingly, we conclude that the Plaintiffs have adequately alleged an injury in fact sufficient to confer constitutional standing. IV The district court erred in holding that Plaintiffs’ NEPA claims were not ripe for review. NEPA claims are reviewed under the APA. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375-76, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). In addition to constitutional standing requirements, Plaintiffs must also meet the APA’s standing requirements that there be (1) a final agency action; and (2) that the plaintiff suffers an injury that falls within the “zone of interests” of the violated statutory provision. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882-83, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). The district court determined that Plaintiffs failed to meet the ripeness requirement embodied in the first prong of the APA test for prudential standing — that the challenged action be a final agency-action. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882-83, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). The district court, citing Whitman v. American Trucking Associations, Inc., 531 U.S.," }, { "docid": "20039460", "title": "", "text": "the Endangered Species Act under the “arbitrary and capricious” standard of the Administrative Procedure Act. Id. (citing 5 U.S.C. § 706(2)(A)). An “agency’s interpretation of the meaning of its own categorical exclusion should be given controlling weight unless plainly erroneous or inconsistent with the terms used in the regulation.” Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 857 (9th Cir.1999). Similarly, an agency’s “no effect” determination under, the Endangered Species Act must be upheld unless arbitrary and capricious. Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1448 (9th Cir.1996). Ninth Circuit jurisprudence distinguishes between the level of deference afforded to agency decisions that are primarily legal in nature and that afforded to decisions that are factual. Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 727 (9th Cir.1995) (‘We find that it makes sense to distinguish the strong level of deference we accord an agency in deciding factual or technical matters from that to be accorded in disputes involving predominately legal questions.”); see Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 667 (9th Cir.1998) (holding that “the less deferential standard of ‘reasonableness’ applies to threshold agency decisions that certain activities are not subject to NEPA’s procedures”). In the Ninth Circuit, “[a]n agency’s threshold decision that certain activities are not subject to NEPA is reviewed for reasonableness.” Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1070 (9th Cir.2002) (citing Northcoast, 136 F.3d at 667). The Supreme Court has noted, however, that “the difference between the ‘arbitrary and capricious’ and ‘reasonableness’ standards is not of great pragmatic consequence.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377 n. 23, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). II We now turn to the merits of the plaintiffs’ National Environmental Policy Act and Endangered Species Act claims and to the appropriateness of the remedy crafted by the district court. A The National Environmental Policy Act “is our basic national charter for protection of the environment.” N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1153 (9th Cir.2008)" }, { "docid": "8914176", "title": "", "text": "a court are subject to judicial review.”). As the Radon Act does not create a specific private right of action, plaintiffs rest their claims for relief on the APA’s general review provisions, 5 U.S.C. §§ 702, 704. See Lujan v. National Wildlife Federation, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). To determine whether the Report is subject to judicial review under the APA, the court must decide whether the Report qualifies as final agency action under the APA. In Federal Trade Comm’n v. Standard Oil Co., 449 U.S. 232, 239-40, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980), the Supreme •Court articulated several factors for determining when agency action is “final” for the purposes of judicial review under the APA: (1) is the agency action a definitive statement of the agency’s position; (2) does the action have direct and immediate legal force requiring parties’ immediate compliance with the agency’s pronouncement; (3) do the challenges to the agency’s actions involve legal issues fit for judicial resolution; and (4) would immediate judicial review speed enforcement and promote judicial efficiency? The Court refined its Standard Oil Co. finality analysis in Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), by narrowing the inquiry to two issues: First, the action must mark the “consummation” of the agency’s decision-making process — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.” Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154 (internal citations omitted); see also COM-SAT Corp. v. National Sci. Found., 190 F.3d 269, 274 (4th Cir.1999) (“[A]n agency action may be considered ‘final’ only when the action signals the consummation of an agency’s decisionmaking process and gives rise to legal rights or consequences.”) (italics in original). The parties do not dispute that the Report marks the consummation of the agency’s decisionmaking process. Thus, the critical issue is whether the Report gives rise to legal consequences, rights, or obligations. As acknowledged by the district court, the" }, { "docid": "19702230", "title": "", "text": "Credible scientific evidence that contraindicates a proposed action must be evaluated and disclosed. 40 C.F.R. § 1502.9(b). If an EA or EIS adequately discloses effects, NEPA’s goal is satisfied. Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir.1996) (emphasis in original). In addition to arguing that the Forest Service violated NEPA in this case, Plaintiffs also contend that the gather violated the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 1331 et seq. The Act, as discussed in more detail below, was enacted to designate and maintain specific ranges on public lands as sanctuaries for the horses’ protection and preservation. Id. at § 1333(a). Because neither NEPA nor the Act contains provisions allowing a private right of action (see Lujan v. National Wildlife Federation, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) and Ecology Center Inc. v. United States, 192 F.3d 922, 924 (9th Cir.1999) for this proposition under NEPA and NFMA, respectively), a party can obtain judicial review of alleged violations of NEPA only under the waiver of sovereign immunity contained within the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. Earth Island Institute v. U.S. Forest Sen., 351 F.3d 1291, 1300 (9th Cir.2003). Under the APA, the court must determine whether, based on a review of the agency’s administrative record, agency action was “arbitrary and capricious,” outside the scope of the agency’s statutory authority, or otherwise not in accordance with the law. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.1994). Review under the APA is “searching and careful.” Ocean Advocates v. U.S. Army Corps of Engineers, 361 F.3d 1108, 1118 (9th Cir. 2004). However, the court may not substitute its own judgment for that of the agen cy. Id. (citing Citizens to. Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). In reviewing an agency’s actions, then, the standard to be employed is decidedly deferential to the agency’s expertise." }, { "docid": "23201604", "title": "", "text": "never been subject to NEPA review. In 1995, a group of environmental organizations, including ONRC, filed suit alleging that the Guidelines were subject to NEPA review and required preparation of an EIS. In 1998, in Northcoast Environmental Center, we held that NEPA review and an EIS were not necessary for the Guidelines. We held first that the Guidelines did not constitute “final agency action” as required by the general review provision of the Administrative Procedure Act. See 136 F.3d at 669-70; see also 5 U.S.C. § 704; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Additionally, we held that the promulgation of the Guidelines did not constitute a “major federal action” as required by § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C). See Northcoast, 136 F.3d at 665. However, we noted in Northcoast that although the Guidelines in and of themselves were not subject to NEPA, if they were incorporated into a specific agency action they would be subject to NEPA in the context of that action. We noted that “[l]ong-range aims are quite different from concrete plans and specific undertakings such as the ... BLM’s Resource Management Plans which the Secretaries have submitted for purposes of environmental analysis under NEPA.” Id. at 668 (emphasis added). We also noted that we were not creating a “ ‘catch 22’ ” situation in which the Guidelines would escape review under NEPA: There is no reason plaintiffs cannot challenge the sufficiency of an agency EIS when a discrete agency action is called for. The agencies will be unable to shield their [Port Orford Cedar] program from NEPA review because they will not be able to avail themselves of the Council on Environmental Quality’s “tiering” provision. 40 C.F.R. § 1502.20.... Furthermore, the Secretaries have stated their intentions to prepare an EIS when they propose to implement particular control strategies with environmental impacts. As we stated in [Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346 (9th Cir.1994) ], judicial estoppel will prevent the Secretaries from arguing they have no further duty to consider their [Port Orford" }, { "docid": "18428045", "title": "", "text": "without prejudice. ONDA appeals the jurisdictional ruling related to its claims under § 706(2). III. Because the substantive statutes under' which ONDA seeks relief do not provide for a private right of action, ONDA challenges the AOIs under the judicial review provisions of the APA. See 5 U.S.C. § 702-706; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). To obtain judicial review under the APA, ONDA must challenge a final agency action. See 5 U.S.C. § 704; Lujan, 497 U.S. at 882, 110 S.Ct. 3177; Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 264 n. 1 (9th Cir.1990) (“finality is ... a jurisdictional requirement”). For an agency action to be final, the action must (1) “mark the consummation of the agency’s decisionmaking process” and (2) “be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett, 520 U.S. at 178, 117 S.Ct. 1154 (internal quotation marks omitted). “ ‘[T]he core question is whether the agency has completed its deci-sionmaking process, and whether the result of that process is one that will directly affect the parties.’ ” Indus. Customers of NW Utils, v. Bonneville Power Admin., 408 F.3d 638, 646 (9th Cir.2005) (quoting Franklin v. Massachusetts, 505 U.S. 788, 797, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992)). In determining whether an agency’s action is final, we look to whether the action “ ‘amounts to a definitive statement of the agency’s position’ ” or “ ‘has a direct and immediate effect on the day-to-day operations’” of the subject party, or if “ ‘immediate compliance [with the terms] is expected.’ ” Indus. Customers of NW Utils, 408 F.3d at 646 (quoting Cal. Dep’t of Water Res. v. FERC, 341 F.3d 906, 909 (9th Cir.2003)) (alteration in original); see also Ukiah Valley Med. Ctr., 911 F.2d at 264 (quoting FTC v. Standard Oil Co., 449 U.S. 232, 239, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980)). We focus on the practical and legal effects of the agency action: “[T]he ‘finality element must be interpreted in a pragmatic and flexible" }, { "docid": "10713660", "title": "", "text": "C.F.R. § 219.10(b)”). . See Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, 116 (9th Cir.1980) (federal loans for continued operation of airport does not trigger EIS); Sierra Club v. F.E.R.C., 754 F.2d 1506, 1509 (9th Cir.1985) (preliminary permit for hydro-dam does not trigger NEPA); Upper Snake River v. Hodel, 921 F.2d 232, 235 (9th Cir.1990) (discretionary agency action that does not alter status quo does not trigger NEPA); National Wildlife Fed’n v. Espy, 45 F.3d 1337 (9th Cir.1995) (transfer of land from federal to private ownership without change in land use not subject to NEPA); Douglas County, 48 F.3d at 1505 (protection of critical habitat for endangered species does not trigger NEPA requirements); Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1446 (9th Cir.1996) (closure of bicycle trail does not trigger EIS); Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 669 (9th Cir.1998) (conservation of rare timber stands does not require EIS). . Section 102(2)(c) of NEPA requires federal agencies to prepare an EIS for \"major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332. The Council on Environmental Quality regulations implementing NEPA define the term \"human environment” to mean \"the natural and physical environment and the relationship of people with that environment.” 40 C.F.R. § 1508.14. . In Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772, 103 S.Ct. 1556, 1560, 75 L.Ed.2d 534 (1983), the United States Supreme Court held that Congress intended NEPA to apply only where a federal action will have a demonstrable impact on the physical environment, \"the world around us, so to speak.” . For example, it is unclear why the Forest Service could not, or did not, consider alternatives along the lines suggested by Plaintiffs. That is, an alternative evaluating individual inventoried roadless areas and developing alternatives consistent with these areas' differing specific characteristics and/or an alternative in which roads, temporary or otherwise, could be built for forest management to reduce the risks of disease, insect infestations, and catastrophic wildfire on an ongoing, preventive basis, rather than merely in response to imminent" }, { "docid": "14191827", "title": "", "text": "from the facts alleged. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir. 1997); Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1334-35 (D.C.Cir.1985). DISCUSSION Defendants challenge Beverly’s claims on several grounds. They contend that all the claims should be dismissed because there has been no final agency action, that they are not ripe for judicial review, and that Beverly has failed to exhaust administrative remedies. Furthermore, defendants contend that, to the extent that Beverly brings a pre-enforcement challenge to DoL regulations, that claim violates the statute of limitations and is barred by laches. I. Whether Beverly’s Claims Implicate “Final Agency Action ” Under the\" APA, “[ajgency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704; see also FTC v. Standard Oil Co., 449 U.S. 232, 238, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980). “Final agency action” is a jurisdictional prerequisite to judicial review. See Hindes v. FDIC, 137 F.3d 148, 161 (3d Cir.1998); Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 266 (9th Cir.1990); Ticor Title Ins.. Co. v. FTC, 814 F.2d 731, 745 (D.C.Cir.1987) (Williams, J., concurring); Independent Petroleum Ass’n of America v. Babbitt, 971 F.Supp. 19, 29 n. 5 (D.D.C. 1997). Defendants contend that there is no final agency action in this case because Beverly filed its complaint while the case was still in an investigative posture. Moreover, although on March 13, 1998, the Wage and Hour Administrator (“the Administrator”) issued a written determination that Beverly violated R4RA and DoL regulations, defendants contend that, because Beverly appealed that decision to an Administrative Law Judge (“ALJ”) on March 28, 1998, that cannot be final agency action. The Supreme Court has made it clear that the “finality” element of the APA should be interpreted “in a pragmatic way.” Standard Oil, 449 U.S. at 239, 101 S.Ct. 488; Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Factors relevant to the finality inquiry include: (1) whether the" } ]

[ { "docid": "9549989", "title": "", "text": "attempt to destroy or damage property in these circumstances does come within the definition of explosive in section 844(j).” Id. at 942. Bunney urges that we distinguish Poulos because in that case witnesses testified as to an actual explosion whereas here witnesses could only speculate as to the possibility of an explosion. He also seeks to limit the holding to cases where the expert witnesses who testify agree that gasoline can be an explosive. We decline to read Poulos so narrowly. We note with the Ninth Circuit that “[w]e shall not face this problem again. Congress has amended 18 U.S.C. § 844 to include arson by fire (in addition to explosive) within its provisions. Anti-Arson Act of October 12, 1982, Pub.L. No. 97-298.” DeLuca, 692 F.2d at 1280-81. II. SUFFICIENCY OF THE EVIDENCE Bunney argues that the evidence was insufficient to convict him because his alleged attempts to destroy the three buildings amounted to no more than a series of conversations, i.e., mere planning and preparation. “[M]ere intention to commit a specified crime does not amount to an attempt. It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime.” United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir.1979). The issue before us, therefore, is whether Bunney’s actions constituted the requisite “overt act,” id., or “substantial step” toward the commission of the crime. “A substantial step must be strongly corroborative of the firmness of the 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). The defendants in Monholland were charged under 18 U.S.C. § 844(d) (1976) with attempting to receive in interstate commerce an explosive with the knowledge or intent that it would be used to kill a person. We held that the charges should have been dismissed because the alleged attempt was too remote from the ultimate crime and was “mere abstract talk.”" } ]

[ { "docid": "18155464", "title": "", "text": "fragment of a crime ... of such substantiality that, unless frustrated, the crime would have occurred.” Smith, 264 F.3d at 1016 (quoting DeSantiago-Flores, 107 F.3d at 1479) (internal quotation marks omitted). The act or acts “must be strongly corroborative of the firmness of the defendant’s criminal intent.” United States v. Bunney, 705 F.2d 378, 381 (10th Cir.1983) (quoting United States v. Mandujano, 499 F.2d 370, 376 (5th Cir.1974)) (internal quotation marks omitted). On appeal, Mr. Washington contends that he “did not perform a substan tial step that was ‘an appreciable fragment’ of murder.” Aplt. Opening Br. at 18. More specifically, he claims that the only steps he took — supposedly, only conspiring with Mr. Collins to kill Lt. Stark and traveling with him to Muskogee — were “preparatory act[s]” that were insufficient to warrant a conviction for attempt. Id. In arguing that his actions were merely preparatory, Mr. Washington relies heavily on United States v. Monholland, 607 F.2d 1311 (10th Cir.1979). There, this court found insufficient evidence to support a conviction for attempting to receive an explosive in interstate commerce where there “was nothing more than preliminary discussion[s]” about the purchase of some dynamite. Id. at 1317. The defendants in that case had asked the government informant what the price of a box of dynamite would be, and had later, and more specifically, asked the informant “what [he] would ... take for” the dynamite that he possessed. Id. A price was never indicated, as the informant told them the dynamite was not for sale, and there was no suggestion that the defendants actually had the money to pay for the explosives. Id. The panel concluded, therefore, that this evidence, “consisting as it does of mere abstract talk,” could not show a substantial step towards completion of the crime. Id. at 1318 (emphasis added). The court reasoned that mere acts of preparation, not proximately leading to the consummation of the intended crime, will not suffice to establish an attempt to commit it, especially when made at a distance from the place where the substantive offense is to be committed, for there" }, { "docid": "10059777", "title": "", "text": "date and time of the proposed transaction. The government failed to establish, however, that appellants performed any overt act to carry out the agreed upon purchase. See Manley, 632 F.2d at 988 (“It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime.” quoting United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir.1979)). Count Two of the indictment charged appellants with attempt to possess heroin on May 17, because they had failed to appear at the scheduled May 18 meeting. The only evidence of appellants’ actions on May 18 consisted of their returning Agent Franciosa’s telephone call. There was no evidence that appellants had set out for the meeting site but turned back; nor was there any evidence that they had either acquired or attempted to acquire the almost one million dollars necessary to complete the purchase. On May 17, appellants’ plan to possess heroin had only advanced to the stage of meeting with their purported suppliers to work out the terms of the deal. We hold that evidence of a verbal agreement alone, without more, is insufficient as a matter of law to support an attempt conviction. Therefore, Count Two of the indictment should not have been submitted to the jury. Accordingly, we reverse appellants’ attempt convictions and direct that Count Two be dismissed. II. Other Evidentiary Challenges A. Hearsay evidence admitted against Delvecchio Appellant Delvecchio argues that the admission of certain evidence against him was improper and claims that he was thereby denied a fair trial. The evidence he challenges is the out-of-court statement of the informant, DiChiara, that DiChiara intended to meet with Amen and Delvecchio on May 11, 1983. This statement was admitted against Delvecchio on the theory that it tended to prove his attendance at the May 11 meeting. When agent Franciosa testified about his surveillance of that meeting, however, he admitted that although he saw another person in the car with Amen, he could" }, { "docid": "17692667", "title": "", "text": "Cir.), cert. denied, 434 U.S. 941, 98 S.Ct. 434, 54 L.Ed.2d 301 (1977). When considering an attempt case, the federal courts have rather uniformly adopted the standard found in Section 5.01 of the American Law Institute’s Model Penal Code (Proposed Official Draft 1962). This standard provides that the requisite elements of attempt are (1) an intent to engage in criminal conduct; and (2) conduct constituting a “substantial step” towards the commission of the substantive offense which strongly corroborates the defendant’s criminal intent. United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982); United States v. Manley, 632 F.2d at 987; United States v. Snell, 627 F.2d 186, 187 (9th Cir.1980) (per curiam), cert. denied, 450 U.S. 957, 101 S.Ct. 1416, 67 L.Ed.2d 382 (1981); United States v. Monholland, 607 F.2d 1311, 1318-20 (10th Cir.1979); United States v. Mandujano, 499 F.2d 370, 376-77 (5th Cir.1974), cert. denied, 419 U.S. 1114,95 S.Ct. 792, 42 L.Ed.2d 812 (1975). We also adopt this standard. Mere intention to commit a crime can never amount to an attempt. It is absolutely essential that the defendant, with the intent of committing a particular crime, perform some overt act in furtherance of the criminal scheme. United States v. Monholland, 607 F.2d at 1318. Developing a general formulation which adequately describes what constitutes a “substantial step,” and at the same time distinguishes such a step from “mere preparation” for a criminal act, has proven to be a “perplexing problem.” United States v. Stallworth, 543 F.2d 1038, 1039 (2d Cir.1976). The difficulty in pinpointing the “elusive line” which separates “mere preparation” from a “substantial step” is traceable to the supreme importance of the facts in any attempt case. United States v. Jackson, 560 F.2d at 113-14. While the “semantical distinction between preparation and attempt is one incapable of being formulated in. a hard and fast rule,” United States v. Noreikis, 481 F.2d 1177, 1181 (7th Cir.1973), vacated on other grounds, 415 U.S. 904, 94 S.Ct. 1398, 39 L.Ed.2d 461 (1974), our analysis is greatly aided by the explanation given by the United States Court of Appeals for the Second Circuit." }, { "docid": "2785592", "title": "", "text": "government agent’s involvement in the crime. Hampton v. United States, 425 U.S. at 497, 96 S.Ct. at 1653. The dissenting justices also agreed with Justice Powell that due process principles or the Court’s supervisory powers would act to bar conviction, even though the defendant might have been predisposed, where the conduct of the law enforcement authorities is sufficiently offensive. Id. The dissent con-eluded that the government agents’ conduct in Hampton was sufficiently offensive to bar conviction. Id. . For a compilation of drug-related cases where defendants unsuccessfully argued outrageous government conduct, see United States v. Tobias, 662 F.2d 381, 392 n. 2 (5th Cir.1981), cert. denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982). . As the Tenth Circuit stated in United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir.1979), mere intention to commit a specified crime does not amount to an attempt. It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime." }, { "docid": "23666221", "title": "", "text": "to contain a kilogram of cocaine constituted a substantial step toward possession of cocaine with the intent to distribute. We disagree. While Joyce professed a desire to purchase cocaine during his preliminary discussions with Jones, Joyce never attempted to carry through with that desire by producing the money necessary to purchase and hence ultimately possess the cocaine. And, although Jones gave Joyce the sealed and wrapped package said to contain a kilogram of cocaine, Joyce did not open the package but immediately returned the package to Jones who in turn refused to open the package because Joyce refused to produce the money necessary to effectuate the purchase of a pound of cocaine. Thus, all we have here is a preliminary discussion regarding the purchase of cocaine which broke down before Joyce had committed any “overt act adapted to, approximating, and which in the ordinary and likely course of things [would] result in the commission of the [crime of possessing cocaine with the intent to distribute]” Monholland, 607 F.2d 1318. We also find unpersuasive the government’s claim that Joyce would have purchased the cocaine had it not been for Jones’ refusal to open the package of co caine. We simply fail to see why Joyce’s motive for refusing to commit a “substantial step” toward possession of the cocaine is particularly relevant. Joyce’s motive for refusing to purchase the cocaine here is no different than had he refused to purchase because he disagreed with Jones as to the price for which the cocaine was offered. And, while we may agree with the government’s suggestion that Joyce, who was presumably “street-wise,” may have been tipped off that Jones was a DEA undercover agent when Jones refused to open the package, we fail to see how an increased awareness of the risk of apprehension converts what would otherwise be “mere preparation” into an attempt. Finally, the government makes the rather novel suggestion that because Joyce was only one act away from the completed offense of possession of cocaine with the intent to distribute, he must, therefore, be guilty of attempting to commit the completed" }, { "docid": "23029040", "title": "", "text": "States v. Martinez, 775 F.2d 31, 35 (2d Cir.1985); United States v. Mowad, 641 F.2d 1067, 1073 (2d Cir.), cert. denied, 454 U.S. 817, 102 S.Ct. 94, 70 L.Ed.2d 86 (1981); United States v. Manley, 632 F.2d 978, 988-89 (2d Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981); United States v. Jackson, 560 F.2d 112, 117-20 (2d Cir.), cert. denied, 434 U.S. 941, 98 S.Ct. 434, 54 L.Ed.2d 301 (1977). By a “substantial” step, we mean “something more than mere preparation, yet [perhaps] less than the last act necessary before the actual commission of the substantive crime_”. United States v. Manley, 632 F.2d at 987; see United States v. Jackson, 560 F.2d at 118-19; United States v. Coplon, 185 F.2d 629, 632-33 (2d Cir.1950) (L. Hand, Ch. J.), cert. denied, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688 (1952). In all cases, we bear in mind that mere intention to commit a specified crime does not amount to an attempt. It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime. Whether conduct represents a substantial step towards the fulfillment of a criminal design is a determination so dependent on the particular factual context of each case that, of necessity, there can be no litmus test to guide the reviewing courts. United States v. Manley, 632 F.2d at 988 (quoting United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir.1979)). In the present case, if one or another of the facts proven had existed in isolation, one might reasonably conclude that Shoul-berg’s acts did not amount to an attempt. For example, if Shoulberg had merely asked for Penna’s address without indicating that he wanted it in order to forestall Penna’s cooperation with the government, or if he had merely expressed to Hamsho the hope that Penna was not cooperating without asking for Penna’s address, neither of those bare acts would have constituted an attempt to" }, { "docid": "7020478", "title": "", "text": "making [our] determination.” Id. (further quotation omitted). Ramirez first challenges the sufficiency of the evidence supporting his conviction for attempting to possess with intent to distribute more than fifty grams of methamphetamine. The crime of attempting to possess requires the government to prove that Ramirez possessed the requisite criminal intent, as well as the “commission of an act which constitutes a substantial step towards commission of the substantive offense.” United States v. Becker, 230 F.3d 1224, 1234 (10th Cir.2000). The “substantial step” required to establish an attempt must be something beyond mere preparation. It must be an act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime. A substantial step is an appreciable fragment of a crime and an action of such substantiality that, unless frustrated, the crime would have occurred. The step must be strongly corroborative of the firmness of the defendant’s criminal intent and must unequivocally mark the defendant’s acts as criminal. It should evidence commitment to the criminal venture. United States v. Smith, 264 F.3d 1012, 1016 (10th Cir.2001) (further quotation omitted). “Whether a defendant’s conduct amounts to a substantial step necessarily depends on the facts of each case.” Id. (further quotation omitted). There is ample evidence that Ramirez had the requisite criminal intent, and Ramirez does not seriously contend otherwise. He argues the government failed to prove he committed a substantial step towards an attempt to possess with intent to distribute. Indeed, Ramirez argues he and Agent Mora only “talk[ed] about doing a deal .... there was no price negotiated and no definite meeting place or time established.” Appellant’s Br. at 15. That conduct was, he asserts, mere preparation, and preparation does not constitute a substantial step. It is true that the substantial step required for an attempt conviction “must be something beyond mere preparation.” Smith, 264 F.3d at 1016 (further quotation omitted). Ramirez committed such a substantial step in this case. He met with Mora and discussed the amount to be purchased and agreed upon a place and a general time for" }, { "docid": "10059776", "title": "", "text": "accepted $650 in cash from an undercover agent to purchase an ounce of heroin for the agent, but had been unable to find a supplier. After reviewing the facts of these and other cases where courts have grappled with the issue of what constitutes a “substantial step,” e.g., Martinez, 775 F.2d 31; Ivic, 700 F.2d 51, we agree with appellants that the evidence in their case was insufficient to sustain their convictions for attempt to possess heroin. Viewing the evidence in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Esdaille, 769 F.2d 104, 108 (2d Cir.), cert. denied, — U.S. -, 106 S.Ct. 258, 88 L.Ed.2d 264 (1985), the proof at best established that appellants sought out DiChiara, a supplier of narcotics; attempted to contact DiChiara by sending him flowers; met with DiChiara on May 11 and May 17, 1983; and agreed on the price for five kilograms of heroin, the terms of payment, and the date and time of the proposed transaction. The government failed to establish, however, that appellants performed any overt act to carry out the agreed upon purchase. See Manley, 632 F.2d at 988 (“It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime.” quoting United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir.1979)). Count Two of the indictment charged appellants with attempt to possess heroin on May 17, because they had failed to appear at the scheduled May 18 meeting. The only evidence of appellants’ actions on May 18 consisted of their returning Agent Franciosa’s telephone call. There was no evidence that appellants had set out for the meeting site but turned back; nor was there any evidence that they had either acquired or attempted to acquire the almost one million dollars necessary to complete the purchase. On May 17, appellants’ plan to possess heroin" }, { "docid": "17307673", "title": "", "text": "beyond mere preparation and that there was never any true attempt to manufacture amphetamine. They focus on the facts that there is no proof McPherson ever met with the chemist, that he was still looking for another chemist to give a second opinion, and that he never actually assembled the chemicals and apparatus and commenced manufacturing. In United States v. Remigio, 767 F.2d 730, 733 (10th Cir.), cert. denied, 474 U.S. 1009, 106 S.Ct. 535, 88 L.Ed.2d 465 (1985), we defined attempt in a drug case as follows: “In order to be convicted of an attempt, the government must prove ‘an intent to engage in criminal conduct and the performance of acts which constitute a “substantial step” towards the commission of the substantive offense.’ United States v. Manley, 632 F.2d 978, 987 (2nd Cir.1980), cert. denied, sub nom. Williams v. United States, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981).” Defining conduct which constitutes a “substantial step” toward commission of the crime has proved to be a thorny task. In United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir.1979), we stated: “It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime.” We concluded that “[t]here must be an overt act pointed directly to the commission of the crime charged.” Id. at 1320. Furthermore, a substantial step must be conduct “strongly corroborative of the firmness of the defendant’s criminal intent.” United States v. Prichard, 781 F.2d 179, 181 (10th Cir.1986) (quoting 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)). Those definitions closely follow the model penal code which, in relevant part, defines criminal attempt as follows: “(1) Definition of Attempt. A person is guilty of an attempt to commit a crime . if, acting with the kind of culpability otherwise required for commission of the crime, he: * j«t >(< * # * “(c)" }, { "docid": "22966190", "title": "", "text": "that which has already been done as well as that which remains to be accomplished before commission of the substantive crime. United States v. Jackson, supra, 560 F.2d at 118-19. In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consumma tion of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute. As we noted in United States v. Busic, 549 F.2d 252, 257 n.9 (2d Cir. 1977), “Judicial inquiry into whether a defendant is chargeable with an attempt is necessarily predictive and focuses on the point when the accused’s conduct has progressed sufficiently to minimize the risk of an unfair conviction.” A second useful formulation may be found in United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir. 1979): The cases universally hold that mere intention to commit a specified crime does not amount to an attempt. It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime. Whether conduct represents a substantial step towards the fulfillment of a criminal design is a determination so dependent on the particular factual context of each case that, of necessity, there can be no litmus test to guide the reviewing courts. With respect to the case at bar, however, it is clear that the district judge properly submitted the matter to the trier of fact, and that the jury’s verdict was supported by evidence amply demonstrating both essential elements of criminal attempt. There can be no doubt that the evidence warranted a finding that Manley possessed the requisite state of mind. The circumstances constituting the probable cause for his arrest have been noted above and plainly bespeak an evil intent. Additionally following his detention he was found to be carrying a large" }, { "docid": "4102018", "title": "", "text": "meet with the informant and an undercover police officer, who was posing as a cocaine seller. The parties agreed on a price, but Joyce refused to tender the money until the police officer opened the package which allegedly contained cocaine. The police officer refused to open the package, and finally Joyce left without making the purchase. He was arrested and in his possession was the approximate amount of money which he had told the informant he would pay for the cocaine. Joyce was convicted of one count of attempting to possess cocaine with intent to distribute. On appeal, this court reversed, finding that Joyce’s acts had not constituted a substantial step. In reaching this conclusion, however, we emphasized that it was Joyce who had ended the negotiations: Whatever intention Joyce had to procure cocaine was abandoned prior to the commission of a necessary and substantial step to effectuate the purchase of cocaine. The attempt, of course, need not be successful, but generally the abortion of the attempt occurs because of events beyond the control of the attemptor. As the court recognized in [United States v. Monholland, 607 F.2d 1311, 1319 (10th Cir.1979)], “the [attemptor’s] act must have passed the preparation stage so that if it is not interrupted extraneously, it will result in a crime.\" Here it is undisputed that Joyce, despite having both the opportunity and ability to purchase the cocaine at the agreed upon price, unambiguously refused either to produce his money or to purchase the cocaine. This effectively negated the government’s effort to consummate the sale. 693 F.2d at 841-42 (citations omitted). Unlike Joyce, in the present case it was Sage, rather than Einfeldt, who ended the negotiations. It is clear from at least the last three phone conversations that Einfeldt had done all he could to obtain heroin short of getting Sage to agree to sell it to him. In each of these calls, Einfeldt contacted a known source of heroin and tried to negotiate a deal. Einfeldt repeatedly offered Sage definite sums of money in exchange for the heroin. He also indicated that he had" }, { "docid": "23666227", "title": "", "text": "jury to hear and observe a change of plea by another defendant. . The relevant portion of the Model Penal Code provides: Section 5.01. Criminal Attempt. (1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or (c)purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. (2) Conduct Which May Be Held Substantial Step Under Subsection (l)(c). Conduct shall not be held to constitute a substantial step under Subsection (l)(c) of this Section unless it is strongly corroborative of the actor’s criminal purpose .... Model Penal Code (Proposed Official Draft 1962). . It should be noted that Joyce’s momentary possession of the wrapped and sealed package containing a kilogram of cocaine is not the same possession that Joyce was charged with attempting. Joyce was indicted and tried for attempting to purchase and hence possess a pound of cocaine with the intent to distribute, not with attempting momentarily to possess a kilogram package of cocaine belonging to officer Jones. . In Monholland, the Tenth Circuit considered whether a defendant’s preliminary discussion with an undercover officer regarding the price at which the defendant could purchase dynamite similar to the sample held by the undercover officer constituted an attempt to receive in interstate commerce an explosive. The court concluded that defendant’s preliminary discussion did not constitute an overt act aimed toward commission of the crime defendant was charged with attempting. Id. at 1320. . If the defendant in Miller had shot" }, { "docid": "23666217", "title": "", "text": "(1981); 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); United States v. Monholland, 607 F.2d 1311, 1319-20 (10th Cir.1979); United States v. Mandujano, 499 F.2d 370, 376-77 (5th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975). While we adopt this standard here, we are also mindful of Judge Learned Hand’s candid, yet poignant, observation that a verbal formulation aimed at dividing mere preparation from attempt is, in itself, not particularly useful. United States v. Coplon, 185 F.2d 629, 633 (2nd Cir.1950), cert. denied, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688 (1952). Indeed, whether conduct represents a “substantial step” toward the commission of the criminal design is, in Justice Holmes’ words, “a question of degree,” necessarily depending on the factual circumstances peculiar to each ease. Commonwealth v. Peaslee, 177 Mass. 267, 272, 59 N.E. 55, 56 (1901). However, as the Tenth Circuit analyzed in United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir.1979): The cases universally hold that mere intention to commit a specified crime does not amount to an attempt. It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in the commission of the particular crime. With this in mind, we conclude that even assuming Joyce went to St. Louis intending to purchase cocaine, there was clearly insufficient evidence to establish that he engaged in conduct constituting a “substantial step” toward the commission of the crime of possession of cocaine with the intent to distribute. Whatever intention Joyce had to procure cocaine was abandoned prior to the commission of a necessary and substantial step to effectuate the purchase of cocaine. The attempt, of course, need not be successful, but generally the abortion of the attempt occurs because of events beyond the control of the attemptor. As the court recognized in Monholland, 607 F.2d 1319, “the [attemptor’s] act must have passed the preparation stage so" }, { "docid": "23666220", "title": "", "text": "States, 237 F. 775 (9th Cir.1916), the defendant, pursuant to a previous arrangement, met a sixteen-year-old girl in a closed store, presumably intending to have intercourse with her. However, after receiving some advice from a friend who was at the store, the defendant decided not to carry through with his criminal intent and left the store without ever approaching the girl. The Ninth Circuit reversed the defendant’s conviction for attempted rape, holding that while the defendant may have gone to the store with the intent of having intercourse with the girl, he. never committed an overt act toward the commission of the intended crime. Id. at 779. Thus, in these two cases and in the instant case, the defendant had the opportunity and ability to commit the completed offense, yet refused to engage in conduct constituting a “substantial step” toward commission of the completed offense. The government, however, urges that Joyce’s initially expressed interest in purchasing a pound of cocaine from Jones at the stated price and his momentary possession of the wrapped package said to contain a kilogram of cocaine constituted a substantial step toward possession of cocaine with the intent to distribute. We disagree. While Joyce professed a desire to purchase cocaine during his preliminary discussions with Jones, Joyce never attempted to carry through with that desire by producing the money necessary to purchase and hence ultimately possess the cocaine. And, although Jones gave Joyce the sealed and wrapped package said to contain a kilogram of cocaine, Joyce did not open the package but immediately returned the package to Jones who in turn refused to open the package because Joyce refused to produce the money necessary to effectuate the purchase of a pound of cocaine. Thus, all we have here is a preliminary discussion regarding the purchase of cocaine which broke down before Joyce had committed any “overt act adapted to, approximating, and which in the ordinary and likely course of things [would] result in the commission of the [crime of possessing cocaine with the intent to distribute]” Monholland, 607 F.2d 1318. We also find unpersuasive the government’s" }, { "docid": "1176615", "title": "", "text": "house. Apparently Prichard intended to “jimmy” the window and then wait to see if the police would respond. If there was no response, it is unclear whether he and Windsor would have entered the banker’s house that evening or the following morning. The evidence most strongly suggested that they did not plan to enter the banker’s house that evening, and that the primary purpose of the trip was to watch the banker’s house. As the two approached the banker’s house, the FBI arrested Prichard. I Prichard’s first claim is that his acts constituted mere preparation. As courts invariably and correctly state, the question of when preparation ends and attempt begins is exceedingly difficult. See, e.g., United States v. Brown, 604 F.2d 347, 350 (5th Cir.1979), cert. denied, 445 U.S. 962, 100 S.Ct. 1649, 64 L.Ed.2d 237 (1980). In United States v. Monholland, 607 F.2d 1311 (10th Cir.1979), we stated that under federal criminal law, “mere intention to commit a specified crime does not amount to an attempt. It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the crime.” Id. at 1318. Later, in United States v. Bunney, 705 F.2d 378, 381 (10th Cir.1983), we required a “substantial step” toward the commission of the crime, which we defined as an act that is “strongly corroborative of the firmness of the defendant’s criminal intent.” Id. (quoting 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)). In the instant case, therefore, we must determine whether Prichard’s objective acts, without relying on the intent underlying those acts, strongly corroborate his intent to rob the bank. See United States v. Pennell, 737 F.2d 521, 525 (6th Cir.1984), cert. denied, - U.S. -, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985); United States v. Oviedo, 525 F.2d 881, 885 (5th Cir.1976). Because Prichard was convicted, in responding to this inquiry, we must view the evidence in" }, { "docid": "17307674", "title": "", "text": "Monholland, 607 F.2d 1311, 1318 (10th Cir.1979), we stated: “It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime.” We concluded that “[t]here must be an overt act pointed directly to the commission of the crime charged.” Id. at 1320. Furthermore, a substantial step must be conduct “strongly corroborative of the firmness of the defendant’s criminal intent.” United States v. Prichard, 781 F.2d 179, 181 (10th Cir.1986) (quoting 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)). Those definitions closely follow the model penal code which, in relevant part, defines criminal attempt as follows: “(1) Definition of Attempt. A person is guilty of an attempt to commit a crime . if, acting with the kind of culpability otherwise required for commission of the crime, he: * j«t >(< * # * “(c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. “(2) Conduct That May Be Held Substantial Step Under Subsection (l)(c). Conduct shall not be held to constitute a substantial step under Subsection (l)(c) of this Section unless it is strongly corroborative of the actor’s criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: * * # * # * “(e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances; % * # # * # “(3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another to commit a crime" }, { "docid": "23666218", "title": "", "text": "cases universally hold that mere intention to commit a specified crime does not amount to an attempt. It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in the commission of the particular crime. With this in mind, we conclude that even assuming Joyce went to St. Louis intending to purchase cocaine, there was clearly insufficient evidence to establish that he engaged in conduct constituting a “substantial step” toward the commission of the crime of possession of cocaine with the intent to distribute. Whatever intention Joyce had to procure cocaine was abandoned prior to the commission of a necessary and substantial step to effectuate the purchase of cocaine. The attempt, of course, need not be successful, but generally the abortion of the attempt occurs because of events beyond the control of the attemptor. As the court recognized in Monholland, 607 F.2d 1319, “the [attemptor’s] act must have passed the preparation stage so that if it is not' interrupted extraneously, it will result in a crime.” Also see Mims v. United States, 375 F.2d 135, 148 n. 40 (5th Cir.1967); People v. Miller, 2 Cal.2d 527, 42 P.2d 308, 309 (1935). Here it is undisputed that Joyce, despite having both the opportunity and ability to purchase the cocaine at the agreed upon price, unambiguously refused either to produce, his money or \"to purchase the cocaine. This effectively negated the government’s effort to consummate the sale. This case is comparable to the case of People v. Miller, 2 Cal.2d 527, 42 P.2d 308 (1935) where the defendant announced his intention to kill another, obtained a .22 caliber rifle, pursued his intended victim into an open field carrying the .22 caliber rifle, and after loading the rifle apparently changed his mind and voluntarily surrendered the rifle to a third person standing nearby. The Supreme Court of California concluded that the defendant’s conduct did not rise to the level of an attempted murder. Id. at 310. Similarly in Wooldridge v. United" }, { "docid": "5184739", "title": "", "text": "also challenges the sufficiency of the evidence supporting his conviction for attempted kidnapping. To obtain a conviction for an attempt crime, the government must prove that the defendant “intend[ed] the completed crime and t[ook] a ‘substantial step’ toward its completion.” United States v. Gladish, 536 F.3d 646, 648 (7th Cir.2008) (citing Braxton v. United States, 500 U.S. 344, 349, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991)). Sanchez claims the evidence is insufficient on both ele ments, but we have already explained why the evidence was sufficient to establish that Sanchez intended to kidnap Vega and Jimenez. The remaining question is whether the government proved that Sanchez took a substantial step toward completing this crime. A substantial step is “ ‘some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime.’” Id. (quoting United States v. Manley, 632 F.2d 978, 988 (2d Cir.1980)); see also United States v. Rovetuso, 768 F.2d 809, 821 (7th Cir.1985) (noting that a substantial step is an overt act “strongly corroborative of the firmness of the defendant’s criminal intent” (quotation marks omitted)). It is “something more than mere preparation, but less than the last act necessary before the actual commission of the substantive crime.” United States v. Barnes, 230 F.3d 311, 315 (7th Cir.2000). The line between mere preparation and a substantial step is inherently fact specific; conduct that would appear to be mere preparation in one case might qualify as a substantial step in another. See United States v. Magana, 118 F.3d 1173, 1199 (7th Cir.1997). Although there is no easy way to separate mere preparation from a substantial step, we are guided by two general principles. First, a substantial step must be “something that makes it reasonably clear that had [the defendant] not been interrupted or made a mistake ... [he] would have completed the crime.” Gladish, 536 F.3d at 648; see also United States v. Pratt, 351 F.3d 131, 136 (4th Cir.2003) (“To determine whether conduct is preparation or an attempt, a court must assess how probable it would" }, { "docid": "7020479", "title": "", "text": "United States v. Smith, 264 F.3d 1012, 1016 (10th Cir.2001) (further quotation omitted). “Whether a defendant’s conduct amounts to a substantial step necessarily depends on the facts of each case.” Id. (further quotation omitted). There is ample evidence that Ramirez had the requisite criminal intent, and Ramirez does not seriously contend otherwise. He argues the government failed to prove he committed a substantial step towards an attempt to possess with intent to distribute. Indeed, Ramirez argues he and Agent Mora only “talk[ed] about doing a deal .... there was no price negotiated and no definite meeting place or time established.” Appellant’s Br. at 15. That conduct was, he asserts, mere preparation, and preparation does not constitute a substantial step. It is true that the substantial step required for an attempt conviction “must be something beyond mere preparation.” Smith, 264 F.3d at 1016 (further quotation omitted). Ramirez committed such a substantial step in this case. He met with Mora and discussed the amount to be purchased and agreed upon a place and a general time for the drug transaction. He then changed the location, from a restaurant to a more secluded location of his choosing, a motel. Furthermore, the wiretapped phone call, while somewhat cryptic, can reasonably be interpreted as indicating that Ramirez subsequently went to the motel and Mora did not. Ramirez’s eon- duct in (1) agreeing upon a general time and place and then changing to a specific location where he would bring the agreed upon narcotics and (2) going to the agreed location is “an act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime.” Id. (further quotation omitted). Indeed, it is a reasonable inference that but for Mora’s decision not to go through with the transaction because it would be too dangerous at the motel, the drug deal would likely have taken place. Given that we must view the evidence in the light most favorable to the government, considering whether any rational trier of fact could find the essential elements of the crime, we" }, { "docid": "4102019", "title": "", "text": "the attemptor. As the court recognized in [United States v. Monholland, 607 F.2d 1311, 1319 (10th Cir.1979)], “the [attemptor’s] act must have passed the preparation stage so that if it is not interrupted extraneously, it will result in a crime.\" Here it is undisputed that Joyce, despite having both the opportunity and ability to purchase the cocaine at the agreed upon price, unambiguously refused either to produce his money or to purchase the cocaine. This effectively negated the government’s effort to consummate the sale. 693 F.2d at 841-42 (citations omitted). Unlike Joyce, in the present case it was Sage, rather than Einfeldt, who ended the negotiations. It is clear from at least the last three phone conversations that Einfeldt had done all he could to obtain heroin short of getting Sage to agree to sell it to him. In each of these calls, Einfeldt contacted a known source of heroin and tried to negotiate a deal. Einfeldt repeatedly offered Sage definite sums of money in exchange for the heroin. He also indicated that he had secured increasingly larger sums of money to enable him to deal with Sage. It was only because Sage refused to deal with Einfeldt that Einfeldt was not successful in his endeavors. On that basis, this case is distinguishable from Joyce. It is our opinion that in the second through fourth phone calls Einfeldt’s conduct constituted a substantial step. Einfeldt’s acts passed the stage of mere preparation such that, but for Sage’s refusal to deal, Einfeldt’s acts would have resulted in a crime. See also United States v. May, 625 F.2d 186, 194 (8th Cir.1980) (sustaining conviction for attempt to conceal government documents where defendant asked another person to have the documents concealed, but the officer in charge of the documents refused to. cooperate). Einfeldt also relies on United States v. Monholland, 607 F.2d 1311 (10th Cir.1979) for support of his contention that his conduct was merely preparatory, rather than a substantial step. In Monholland, the defendants had been charged with attempt to receive in interstate commerce an explosive with knowledge that the explosive would be" } ]

[ { "docid": "23546686", "title": "", "text": "from the rule of automatic reversal, the government argues, based on these sources, that the erroneous denial of peremptory challenge is subject to harmless-error analysis. We strongly disagree. 1. Harmless-error analysis Under harmless-error analysis, an appellate court, upon finding that either a constitutional or non-constitutional error occurred in the trial court, may nonetheless affirm a conviction on the ground that the error was harmless. Federal Rule of Criminal Procedure 52(a) provides that “any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” The purpose of harmless-error analysis is to avoid “setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial,” because reversal would entail substantial social costs. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967) (emphasis added). In determining whether an error is subject to harmless-error analysis, a reviewing court must determine whether the error is a “classic ‘trial error,’ ” such as the improper admission of evidence. Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 1264, 113 L.Ed.2d 302 (1991). In Fulminante, the Supreme Court defined “trial error” as “error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Fulminante, 499 U.S. at 307-08, 111 S.Ct. at 1264 (emphasis added). “Structural” errors, in contrast, are “defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards [,]” id. at 309, 111 S.Ct. at 1265 (emphasis added), and affect “the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. at 310, 111 S.Ct. at 1265. Some commentators have treated harmless-error jurisprudence as establishing a strict dichotomy between trial error, which is subject to harmless-error analysis, and structural error, which is per se reversible. See “Twenty-Fourth Annual Review of Criminal Procedure,” 83 Georgetown L.J. 665, 1365 (March-April 1995). The case law does not appear to" } ]

[ { "docid": "23581177", "title": "", "text": "the interest of justice did not require a new trial. Not surprisingly, an appellate court reviews the district court’s “denial of a motion for a new trial for abuse of discretion and will reverse only if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.” United States v. Red Elk, 368 F.3d 1047, 1053 (8th Cir.2004) (citation omitted). We exert little effort in concluding the district court did not abuse its wide discretion in denying Walker’s motion for a new trial. Sufficient evidence supports the jury’s verdict. Walker’s conviction does not evince a serious miscarriage of justice such that we must reject the jury’s verdict or the district court’s sense of justice. C. Officer’s Testimony Walker contends “[t]he district court abused its discretion in allowing Lieutenant Shoemaker to speculate that [Walker] was reaching for a gun during their high-speed car chase.” Walker then maintains the district court’s erroneous ev-identiary decision prejudiced him, arguing Lieutenant “Shoemaker’s unfounded opinion was the only evidence that [Walker] had knowledge of the weapon’s presence and the intention to exercise dominion and control over it.” We review a district court’s evidentiary decisions under an abuse of discretion standard, but, “[e]ven if the district court erred in admitting the evidence, we will not reverse if the admission of the evidence was harmless.” United States v. Velazquez-Rivera, 366 F.3d 661, 666 (8th Cir.2004); see Fed.R.Crim.P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”). We see no reason to discuss the niceties of the district court’s rulings on Walker’s motion in limine and objection at trial. No obvious error of law or abuse of discretion is apparent. Instead, we focus on the impact of the court’s rulings, and conclude any error was harmless. We reach this conclusion based on our firm belief Lieutenant Shoemaker’s testimony that Walker reached for a gun or had a gun in his car was inconsequential to the jury’s verdict. Had the district court precluded Lieutenant Shoemaker from testifying she told another officer “there’s a gun in that car” or" }, { "docid": "18043070", "title": "", "text": "his share of the proceeds. Thus, we conclude that sufficient evidence supports both the jury’s verdicts on both of the money laundering charges. Ill Rivera next claims that the government improperly commented on his post-arrest silence diming its direct examination of Sergeant Larry Doreck. Doreck testified on direct examination that he interviewed Rivera after his arrest. Doreck further stated that he asked Rivera if he had withdrawn the $850 from the Bank of Houston. The prosecutor then asked Do-reck whether Rivera “answer[ed] any questions you asked him about the $850.” Doreck replied that Rivera had not answered any of his questions. The Supreme Court has held that the Due Process Clause prohibits the impeachment of a defendant’s exculpatory story using the defendant’s post-Miranda silence. See Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). “A prosecutor’s or witness’s remarks constitute comment on a defendant’s silence if the manifest intent was to comment on the defendant’s silence, or if the character of the remark was such that the jury would naturally and necessarily so construe the remark.” United States v. Shaw, 701 F.2d 367, 381 (5th Cir.1983). Ordinarily, we review prosecutorial comments about a defendant’s post-Miranda silence under the doctrine of harmless error by determining whether the error was harmless beyond a reasonable doubt. See United States v. Moreno, 185 F.3d 465, 472 (5th Cir.1999). Here, however, Rivera did not object to the prosecutor’s questioning. Thus, our review is limited to plain error. Garcia-Flores, 246 F.3d at 457 (explaining that when a defendant fails to object to a prosecutor’s alleged unconstitutional comment on a defendant’s silence, review is for plain error). “Plain error occurs when the error is so obvious and substantial that failure to notice and correct it would affect the fairness, integrity, or public reputation of judicial proceedings and would result in manifest injustice.” United States v. Mizell, 88 F.3d 288, 297 (5th Cir.1996). Therefore, in order to overturn Rivera’s conviction, we must conclude, first that the prosecutor’s comments violated Doyle and, if so, that our failure to reverse the conviction would result in" }, { "docid": "22567797", "title": "", "text": "Craig knew that Newsom had pictures of firearms tattooed on his body presents a completely different issue than whether Craig had ever seen Newsom possess an actual firearm. Even if Newsom had a pistol tattooed on his forehead and Craig admitted that she had seen it, that does not make Craig’s testimony that she had never seen Newsom with a firearm more or less believable. b. Whether the district court’s error was harmless Without any elaboration, the government argues that any error in allowing the question regarding Newsom’s firearm-related tattoos was “clearly harmless given the factual circumstances of the case.” The government is correct in stating that the harmless-error standard applies. Despite our conclusion that the district court erred when it allowed the government to cross-examine Craig about Newsom’s tattoos, we will reverse its judgment only if the error was “more than harmless.” Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 897 (6th Cir.2004) (“This court reviews a district court’s evi-dentiary rulings for abuse of discretion, and a district court’s determination will be reversed only if the abuse of discretion caused more than harmless error.”); see also United States v. Baldwin, 418 F.3d 575, 581 (6th Cir.2005) (“Even where a district court erroneously admits evidence, we will not reverse the defendant’s conviction if the error is deemed harmless.”). The government bears the burden to prove that any error was harmless. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (stating that in the harmless-error inquiry under Rule 52(a) of the Federal Rules of Criminal Procedure, the government bears the burden of persuasion). For the purposes of this appeal, “[a]n error is harmless when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Baldwin, 418 F.3d at 582 (citation and quotation marks omitted); see also Fed.R.Crim.P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”). Craig’s single response that she was not aware of any tattoos on New-som’s body depicting firearms is so attenuated an exchange in the" }, { "docid": "20729022", "title": "", "text": "prove facts at trial, correct?” A: “It’s to be part of the record, yes.” In addition, the primary purpose is also reflected on the face of the reports themselves, which state: “Law enforcement officials please be advised: this Report is being provided solely for the purpose of a law enforcement investigation into possible criminal behavior.” (emphasis on original removed). Even without the above, we would have no trouble finding that the CyberTipline Reports were testimonial. As such, they could not have been admitted without giving Cameron the opportunity to cross-examine their authors. Shehan admitted that he was “not the original analyst who processed” the Yahoo! CP Reports in this case. Thus, the admission of the Cyber-Tipline Reports in these circumstances violated the Confrontation Clause. E. Harmless Error Analysis That certain evidence was admitted in violation of Cameron’s Confrontation Clause rights does not necessarily mean that we must reverse Cameron’s convictions on any counts. Instead, we must determine whether or not the error was harmless beyond a reasonable doubt; if the error was harmless, we will not reverse. See United States v. Meises, 645 F.3d 5, 24 n. 26 (1st Cir.2011) (“Constitutional errors, such as a Confrontation Clause violation, require reversal unless shown to be harmless beyond a reasonable doubt.” (emphasis added) (citing United States v. Cabrera-Rivera, 583 F.3d 26, 36 (1st Cir.2009))). In Cabrera-Rivera, we explained that [i]n evaluating harmlessness, we consider a number of factors, including whether the challenged statements were central to the prosecution’s case; whether the statements were merely cumulative of other (properly admitted) evidence; the strength of corroborating or contradicting evidence; the extent to which cross-examination was permitted; and the overall strength of the ease. 583 F.3d at 36 (citing Earle, 488 F.3d at 546). The burden of proving harmlessness is on the government. Earle, 488 F.3d at 545 (referring to “[the government’s] burden of showing that any such error was harmless beyond a reasonable doubt”). It is clear that for many of the counts of conviction, the CP Report receipts and CyberTipline Reports were not even relevant, much less “central,” to the prosecution’s case. Cameron’s" }, { "docid": "2612202", "title": "", "text": "witnesses’ sentences and the sentence reduction orders themselves constituted error in the form of impermissible vouching for the credibility of the witnesses. However, in light of the context of the entire proceeding, including the strength of the evidence against Harlow, and the district court’s curative instruction, such error does not warrant a new trial. 2. Prosecutor’s Rebuttal Closing Argument Harlow next claims the district court erred by failing to sustain his objection to the government’s closing argument, which he says impermissibly offered personal opinion as to the truthfulness of the co-conspirators testimony. In the context of this case, because Harlow contemporaneously objected to the prosecutor’s closing argument statements and moved for a mistrial based on what is, essentially, an allegation of prosecutorial misconduct, we review the district court’s denial of Harlow’s motion for a mistrial for an abuse of discretion. United States v. Broomfield, 201 F.3d 1270, 1276 (10th Cir.2000). Applying this standard, we conclude the district court did not abuse its discretion. Reviewing claims of prosecutorial misconduct entails a two-step analysis. We must first determine whether the conduct was in fact improper. If the conduct was improper, we must then determine whether it warrants reversal. Lonedog, 929 F.2d at 572. Prosecutorial misconduct does not warrant a new trial if it was harmless error. United States v. Alexander, 849 F.2d 1293, 1296 (10th Cir.1988). “The Supreme Court has articulated different harmless-error standards, depending upon whether the error is of constitutional dimension. A non-constitutional error is harmless unless it had a ‘substantial influence’ on the outcome or leaves one in ‘grave doubt’ as to whether it had such effect.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (en banc) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). “On the other hand, most constitutional errors may be declared harmless only if we are convinced, beyond a reasonable doubt, that they did not affect the outcome of the trial.” Lonedog, 929 F.2d at 572; see United, States v. Martinez, 890 F.2d 1088, 1094 (10th Cir.1989). Improper vouching for witnesses is not considered to" }, { "docid": "22169910", "title": "", "text": "the offenses charged in those counts. The trial judge’s answer, quite properly, focused on this specific issue and decisively settled it. As he was never asked and consequently never told the jury to disregard the variance entirely, we find no merit to the challenge to the answer to the jury question about the sawed-off shotgun’s gauge. X Munoz maintains that the “synergistic prejudice caused by the combination of errors and improprieties” beginning with the search of the Rojas apartment and continuing through the jury’s verdict collectively mandate reversal. In doing so, he asks us to invoke the cumulative error doctrine, which provides that an aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless errors) can yield a denial of the constitutional right to a fair trial, which calls for reversal. See United States v. Labarbera, 581 F.2d 107, 110 (5th Cir.1978); United States v. Rothstein, 530 F.2d 1275, 1280 (5th Cir.1976); see also United States v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir.1993) (explaining the cumulative error doctrine), cert. denied, 512 U.S. 1223, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994); United States v. Necoechea, 986 F.2d 1273, 1282-83 (9th Cir.1993) (“In reviewing for cumulative error, the court must review all errors preserved for appeal and all plain errors.”). For the sake of discussion, we accept Munoz’s assumption that each of the errors are harmless. Since such miscues, if there are any, embody the non-constitutional variety of harmless error, we apply the standard articulated by Federal Rule of Criminal Procedure 52(a). See United States v. Rivera, 900 F.2d 1462, 1470 n. 6 (10th Cir.1990) (en banc). Compare Fed.R.Crim.P. 52(a) (stating the harmless nonconstitutional error standard) with United States v. Alexius, 76 F.3d 642, 646 (5th Cir.1996) (stating the harmless constitutional error standard). The coalescence of harmless errors, if any, arising in this case fail to result in a denial of a fair trial. Munoz’s claim of cumulative error, therefore, proves unavailing. XI Munoz disputes the trial judge assigning him to criminal history category VI based on the career offender sentencing enhancement. He considers this determination wrong because" }, { "docid": "8563885", "title": "", "text": "from jury instructions can be harmless), petition for cert. filed, — U.S.L.W.(U.S. Sept. 29, 2005) (No. 05-6764). As our sister circuits have done, we can distinguish Russell and Stirone. C. Our own precedents undermine Du Bo’s premise that omissions from the grand jury are not susceptible to harmless error review. In Du Bo, we asserted that omissions from the grand jury are, in general, not proper fodder for harmless error review. We reasoned that assessing grand jury error would require the court to “ ‘guess as to what was in the minds of the grand jury.’ ” Du Bo, 186 F.3d at 1179(quoting United States v. Keith, 605 F.2d 462, 464 (9th Cir.1979)). Our own precedents undermine this rationale. When defective indictments are challenged for the first time on appeal, our cases do not mandate automatic reversal but, rather, require us to review for plain error. In so doing, we perform a prejudice analysis nearly identical to the analysis that we refused to perform in Du Bo. See United States v. Velasco-Medina, 305 F.3d 839, 847 (9th Cir.2002) (holding that “any defect in the indictment was harmless”); United States v. Leos-Maldonado, 302 F.3d 1061, 1064(9th Cir.2002) (“Leos cannot meet the third condition[of the plain error standard].”). Except for the burden of proof, the third element of the plain error analysis is identical to the harmless error analysis: Both require us to determine whether the error “affect[ed] substantial rights,” i.e., prejudiced the defendant. United States v. Jordan, 291 F.3d 1091, 1095-96(9th Cir.2002). Compare Cotton, 535 U.S. at 631, 122 S.Ct. 1781 (setting forth the four prongs of plain error review: (1) an error; (2) that is plain; (3) that “affect[s] substantial rights ”; and (4) that “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings” (alteration in original) (emphasis added) (internal quotation marks omitted)), with Fed.R.Crim.P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” (emphasis added)). In Velasco-Medina and Leos-Maldonado, we held that omissions from indictments did not affect a defendant’s “substantial rights” because the defendant had notice of the missing" }, { "docid": "23569284", "title": "", "text": "or not to return any partial verdicts, the supplemental instruction effectively removed that discretion by directing the jury to return any partial verdicts that had been reached at that point. Thus, the supplemental instruction clearly had the potential to infringe on the jury’s discretion to decide for itself what deliberative process to utilize and undoubtedly infringed on the jury’s discretion to decide when, if at all, to report a partial verdict. See United States v. DiLapi, 651 F.2d 140 (2d Cir.1981) (discussing right of jury to return partial verdict in multi-defendant trial). We therefore hold that giving such an instruction was error. Nevertheless, we need not remand if we conclude that the error was harmless beyond a reasonable doubt. See Stiger, 413 F.3d at 1191 (potential error in verdict form did not warrant remand when any error did not affect the outcome of the trial). [20] The Appellants argue that the partial verdict instruction had the same effect as an Allen instruction, i.e., improperly coercing the jury to reach a verdict as to the charges still being deliberated at the time the District Court gave the supplemental instruction. We concluded above that this instruction did not coerce the jury’s verdict. As such, we hold that the District Court’s error in giving the supplemental instruction was harmless beyond a reasonable doubt. C. Cumulative Error The Appellants argue that they were denied their due process right to fundamental fairness through the combined effect of three discovery errors and thirteen errors in admitting testimony. A cumulative error analysis aggregates all the errors that individually are harmless, and therefore not reversible, and “analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir.1990) (en banc). “Only actual errors are considered in determining whether the defendant’s right to a fair trial was violated.” United States v. Toles, 297 F.3d 959, 972 (10th Cir.2002). 1. Discovery Rulings Ms. Gutierrez was one of the Government’s principal witnesses for both the conspiracy and assault charges." }, { "docid": "13960847", "title": "", "text": "actual guilt. In your consideration of the evidence of flight, you should consider that there may be reasons for the defendant’s actions that are fully consistent with innocence. It is up to you as members of the jury to determine whether or not evidence of intentional flight show[s] a consciousness of guilt and the weight or significance to be attached to any such evidence. Moreover, the evidence of Blanco’s “flight” — as provided. in Agent Bustos’s testimony — was both easily understandable and fairly innocuous. We believe that the jury was unlikely, based on this evidence, to have been misled into attributing to Blanco consciousness of guilt such that it affected the verdict. We therefore find the instructional error, standing alone, harmless. Because we are remanding to the district court for factfinding on the Brady/Giglio issue, we do not, at this stage of the proceedings, have occasion to consider the question of cumulative error. Conclusion The government has a duty to “turn over to the defense in discovery all material information casting a shadow on a government witness’s credibility.” Bemalr-Obeso, 989 F.2d at 334. We hold that the government suppressed information that should have been given to Blanco under Brady and Giglio, and we remand to the district court with directions that it order the government to produce all information in its possession pertaining to Rivera, including but not limited to information about his immigration status and his prior work for the DEA. We further hold that the district court erred in giving a flight instruction, but that this error, considered alone, was harmless. We AFFIRM in part and REMAND for further proceedings consistent with this opinion. . In a separate appeal, we reversed Alvarez’s conviction on a ground not relevant to this appeal. See United States v. Alvarez-Farfan, 338 F.3d 1043 (9th Cir.2003). . Our remand to the district court with directions to order the government to produce the above-described information makes it unnecessary for us to reach Blanco's argument that he is entitled to examine Rivera's DEA and INS files under United States v. Henthom, 931 F.2d 29" }, { "docid": "16377753", "title": "", "text": "number of Officer III in order to give him a present and “get in touch with him” after the sham transaction; and (3) the testimony by Officer II that “Angel [Rivera] was kind of interested in the guy, the other guy that was there” (presumably referring to Officer III). There were no objections at trial to these three types of evidence of Rivera’s sexual orientation, so we review their admission for plain error. See Powers, 702 F.3d at 10. Even if it was error to admit the foregoing evidence and argument, such an error will not permit us to overturn Rivera’s conviction if the error was harmless. See Fed.R.Crim.P. 52(a); see also Landrón-Class, 696 F.3d at 68; United States v. York, 572 F.3d 415, 429 (7th Cir.2009) (“Under either a plain error standard or an abuse-of-discretion standard, if those errors were harmless, [appellant’s] conviction will stand.”). Here, we find that “it is highly probable” that any error in allowing evidence of Rivera’s sexual orientation did not affect the verdict; thus, any such error was harmless. See Pridgen, 518 F.3d at 91. We agree with Rivera that evidence of his homosexuality was “relevant to nothing.” However, that same irrelevance cuts against him on the harmless-error analysis here. Rivera’s sexual orientation had absolutely nothing to do with whether his conduct satisfied the elements of the offenses of conviction, or whether he had a valid defense. Rivera fails to explain— under the particular facts of this case— precisely how evidence of his homosexuality affected the jury’s guilty verdict regarding his participation in the sham transaction. Unlike Delgado, Rivera did not seek to support an entrapment defense by presenting testimony and argument that an undercover agent improperly induced him to participate in the transaction by means of a romantic or sexual relationship. And Rivera makes no argument that the government’s evidence was otherwise so weak that evidence of his homosexuality was likely to have tipped the scales against him. Particularly given the highly incriminating evidence here — including the video recording and the testimony of the government witnesses and his codefendant— there is a" }, { "docid": "22955011", "title": "", "text": "them. C. Harmless Error Finally, we must determine whether the district court’s erroneous decisions to admit the conclusions of Dr. Ornelas, the prejudicial statements of Ms. Baum and Ms. Carlson, and the physical abuse-related opinion of Ms. Carlson were harmless. A non-constitutional error, such as a decision whether to admit or exclude evidence, is considered harmless “unless a substantial right of [a] party is affected.” Fed.R.Evid. 103(a). We have stated that an error affecting a substantial right of a party is an error which had a “ ‘substantial influence’ on the outcome or [which] leaves one in ‘grave doubt’ as to whether it had such effect.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (en banc) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). When conducting our harmless error analysis, we review the record as a whole. See United States v. McVeigh, 153 F.3d 1166, 1204 (10th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 1148, 143 L.Ed.2d 215 (1999). Harmless error analysis is not the same as insufficiency of the evidence analysis. See United States v. Tome, 61 F.3d 1446, 1455 (10th Cir.1995) (stating that “[t]he question is not whether, omitting the inadmissible statements, the record contains sufficient evidence for a jury to convict the defendant”). The burden of proving that an error is harmless falls on the government. See Rivera, 900 F.2d at 1469 n. 4. Harmless error is not an easy issue in this case. Defendant took the stand in his own defense and categorically denied ever inappropriately touching either of the girls. There was no physical evidence of abuse, and no eyewitnesses to the alleged misdeeds. On the other hand, both girls testified, each corroborating the other. Both were old enough to understand the trae nature of their accounts. D.J. especially had an undisputed and documented history of atypical medical conditions and complaints that was consistent with sexual abuse. In addition, both girls displayed symptoms of emotional distress that were consistent with sexual abuse. J. J. was distressed and fearful, and drew a picture of a" }, { "docid": "3154422", "title": "", "text": "as a matter of law, and also failed to instruct the jury that to convict the jury must find beyond a reasonable doubt that the crime was committed on Schofield Barracks. The court’s failure “to charge a necessary element of the offense generally is plain error.” United States v. King, 587 F.2d 956, 965 (9th Cir.1978); see also United States v. Aguon, 851 F.2d 1158, 1168 (9th Cir.1988) (en banc) (failure to charge on “vital” element is plain error). However, if such an error is harmless then, by definition, it does not affect a defendant’s substantial rights and is not reviewable as plain error. See Fed.R.Crim.P. 52. “The failure to instruct on every element of an offense is harmless error only if the omitted element is undisputed, and, therefore, its omission could not possibly have been prejudicial.” King, 587 F.2d at 966; see also Hennessy v. Goldsmith, 929 F.2d 511, 514-16 & n. 3 (9th Cir.1991) (failure to instruct on element of crime may be harmless beyond a reasonable doubt). In this case, the prosecution presented uncontroverted testimony that the crime occurred outside the Paradise Club, that the Paradise Club was an enlisted men’s club at Schofield Barracks, and that Scho-field Barracks was a United States Army base in Hawaii. An army base is within the special jurisdiction of the United States as defined in 18 U.S.C. § 7(3). Warren made no attempt to impeach this testimony and offered no contrary evidence. Indeed, in questioning a witness Warren’s counsel referred on the record to the fact that the Paradise Club was located on the Schofield base. There is no reasonable possibility that failure to instruct the jury on the jurisdictional element of the offense affected the verdict. United States v. Rubio-Villareal, 967 F.2d 294, 296 n. 3 (9th Cir.1992) (en banc); see also United States v. Cubean, 611 F.2d 257, 258 (8th Cir.1979) (failure to instruct on jurisdiction was harmless because there was no prejudice to defendant where issue was proved beyond a reasonable doubt and was uncontroverted at trial). Therefore, the judge’s failure to instruct the jury that it" }, { "docid": "2612203", "title": "", "text": "determine whether the conduct was in fact improper. If the conduct was improper, we must then determine whether it warrants reversal. Lonedog, 929 F.2d at 572. Prosecutorial misconduct does not warrant a new trial if it was harmless error. United States v. Alexander, 849 F.2d 1293, 1296 (10th Cir.1988). “The Supreme Court has articulated different harmless-error standards, depending upon whether the error is of constitutional dimension. A non-constitutional error is harmless unless it had a ‘substantial influence’ on the outcome or leaves one in ‘grave doubt’ as to whether it had such effect.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (en banc) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). “On the other hand, most constitutional errors may be declared harmless only if we are convinced, beyond a reasonable doubt, that they did not affect the outcome of the trial.” Lonedog, 929 F.2d at 572; see United, States v. Martinez, 890 F.2d 1088, 1094 (10th Cir.1989). Improper vouching for witnesses is not considered to impact an express constitutional right. See Cargle v. Mullin, 317 F.3d 1196, 1220 (10th Cir.2003). Therefore, we treat vouching as a non-constitutional error and examine whether it had a substantial influence on the outcome, or leaves us in grave doubt as to whether it had such an effect. In this case, the prosecutor’s statement in rebuttal closing argument makes explicit the problem implicit in the introduction of the Rule 35(b) motions and the sentence reduction orders. Specifically, the prosecutor stated, Separation of powers. It’s all here. Congress allows it to happen. The executive branch, representing the executive, we’re involved. We use them as witnesses. But what’s really important, and you can have a chance to take a look at this, you’ve go the orders reducing their sentences signed by the judicial branch, Judge Johnson. (R. at 271.) Aside from his inelegant discussion of our tripartite system of government, the prosecutor stated Judge Johnson had signed off on the testimony of Janway, Flint and Villa. In our view, this violates the prohibition against vouching. While the" }, { "docid": "22046582", "title": "", "text": "prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at 756. Were that the only holding of Booker, this appeal would be at an end because it is clear that no Sixth Amendment violation occurred — all operative sentencing facts were admitted. However, the Supreme Court also imposed a global remedy for the Sixth Amendment difficulties with the Sentencing Guidelines, invalidating their mandatory application and instead requiring district courts to consult them in an advisory fashion. Id. at 756 (excising 18 U.S.C. §§ 3553(b)(1), 3742(e)). That plainly did not occur in this case. Had it occurred, our task would be to determine whether the sentence is unreasonable considering the factors in 18 U.S.C. § 3553(a). We must apply the remedial holding of Booker to Mr. Labastida-Segura’s direct appeal even though his sentence does not involve a Sixth Amendment violation. Id. at 769. The Court has indicated that harmless error may be considered in such cases (thereby obviating the need for resentencing). Fed.R.Crim.P. 52(a) provides that “[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” In the context of a misapplication of the guidelines under 18 U.S.C. § 3742(f)(1), the Supreme Court held that “once the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court’s selection of the sentence imposed.” Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) (citing Fed. R.Crim.P. 52(a)); see also 28 U.S.C. § 2111. The district court plainly sentenced Mr. Labastida-Segura under the Sentencing Guidelines viewing them as mandatory. Although the Supreme Court indicated that not every guideline sentence contains Sixth Amendment error, and not every appeal requires resentencing, Booker, 125 S.Ct. at 769, in this case (where the" }, { "docid": "22075760", "title": "", "text": "555-56 (9th Cir.1985). Given the wide latitude accorded to final argument, distinguishing foul from hard blows is not an easy task. Id. Here, however, the task is not so difficult; this is a hard blow. The purpose of the trial was to prove that Necoechea was a drug dealer. This is not only a reasonable inference, it is the ultimate inference the jury had to make. Such a comment, though hard, is not foul when compared to other comments which we have found not to be error. See, e.g., United States v. Makhlouta, 790 F.2d 1400, 1403 (9th Cir.1986) (affirming district court which allowed prosecutor to argue “what kind of family man sells heroin that kids inject?”). Thus, we must consider whether the two instances of vouching cumulatively require reversal. Necoechea argues that once all errors are grouped, their cumulative impact must be reviewed under a harmless error standard, citing Berry. Berry, however, held that since the defendant charged “non-constitutional error,” the court should affirm if the cumulative error was more probably than not harmless. Berry, 627 F.2d at 201. Unlike those in Berry, all of the errors Necoechea raises are subject to plain error review. Therefore we review the cumulative impact of the possible plain errors for plain error. Cf. United States v. Rivera, 900 F.2d 1462, 1470 n. 6 (10th Cir.1990) (when aggregating errors, if any error is constitutional, then aggregate error should be reviewed under harmless beyond a reasonable doubt standard). We acknowledge that a defendant is more likely to be prejudiced by error or misconduct when the government’s case rests on uncorroborated accomplice testimony. United States v. Hibler, 463 F.2d 455, 462 (9th Cir.1972). Gibson’s testimony in this case is corroborated only by testimony that a “money man” would be at the drug deal. Thus, our review should be critical. Since both vouching errors affect the same issue—Gibson’s credibility—the possible prejudice grows when both errors are viewed together. Nevertheless, there is no cumulative error. The vouching during opening statement was mild, and was adequately cured by the court’s general instruction. There can be no “traces” of" }, { "docid": "22977791", "title": "", "text": "evidence under the Confrontation Clause. Therefore, we will apply the non-constitutional standard of review to the facts of this case. Under Fed.R.Crim.P. 52, “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” A harmless nonconstitutional error is one that did not have a “substantial influence” on the outcome in trial nor does it “leave[] one in ‘grave doubt’ as to whether it had such effect.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946)). After carefully reviewing the record, we are satisfied that the erroneous admission of the pager bill into evidence did not have a “substantial influence” on the outcome in trial nor are we left in “grave doubt” as to whether it had such effect. Once again, we begin by examining the purpose behind the government’s introduction of the U.S. West pager bill into evidence. The government hoped to link the bill to agent Young’s testimony regarding the frequent use of pagers by drug distributors in order to prove that Roosevelt was aware of the presence of the cocaine in the trunk and to prove that he had a stake in the distribution of the cocaine. Because there was an abundance of evidence, other than the pager bill, from which the jury could have reached these conclusions without depending upon the pager bill, we find that the admission of the pager bill into evidence was harmless. First, officers Matoon and Cole testified that Anthony had told officer Matoon that the trunk did not work before he searched it when, in fact, the trunk did work. Second, Tillis testified that the purpose of the trip was to purchase cocaine from sources in California and to hook Anthony into Til-lis’ drug connections in California. Third, Tillis testified that Anthony had paid him to make two prior crack purchases from his sources in California. Fourth, a government agent testified that the volume of cocaine discovered in the trunk of Tillis’ car was so large that it must" }, { "docid": "23706667", "title": "", "text": "by name. Although this court does not condone the prosecutor’s remark in this case, the reference was not of a magnitude to warrant reversal of the verdict. The prosecutor’s alleged misstatements of the evidence during the government’s closing statements, however, were not improper. All three statements cited by Toles were’either ambiguous or were inferences that a jury could have properly drawn from the evidence. See United States v. Pena, 930 F.2d 1486, 1490 (10th Cir.1991) (“[A] prosecutor’s summation may appropriately suggest to the jury what inferences it ought to draw from the evidence in the case.”). To the extent that any misstatement of the evidence could have been construed from the prosecutor’s statements, they were harmless, or, in the case of the third statement, did not constitute plain error. See United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir.1986). E. Cumulative Error Finally, Toles claims that even if each of the alleged errors do not rise to the level of reversible error, they collectively constitute cumulative error. A cumulative-error analysis aggregates all errors found to be harmless and “analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir.1990) (en banc). This court considers whether the defendant’s substantial rights were affected by the cumulative effect of the harmless errors. Id. Only actual errors are considered in determining whether the defendant’s right to a fair trial was violated. Id. at 1470-71. If any of the errors being aggregated are constitutional in nature, the cumulative error must be harmless beyond a reasonable doubt, in accordance with Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See id. at 1470 n. 6. In this case, the only errors to be aggregated are the court’s limitation on the cross-examination of Sh-Pone Harris, which we merely assumed was error, and the prosecutor’s improper reference to an individual juror during closing arguments. See Sections III.B., D., supra. After examining the proceedings in their entirety, we cannot say that" }, { "docid": "12676181", "title": "", "text": "to lay a foundation for application of the business records exception. The district court made an error of law by not requiring the government to lay the requisite foundation or forgo the use of the summaries, and thus abused its discretion in admitting the summaries. See Timberlake Constr. Co. v. U.S. Fidelity & Guar. Co., 71 F.3d 335, 341-42 (10th Cir.1995) (admission of documents not comporting with 803(6) foundational requirements was error). Such error, however, does not necessarily end the appellate inquiry. Federal Rule of Criminal Procedure 52(a) provides that an error “which does not affect substantial rights shall be disregarded.” Fed.R.Crim.P. 52(a); see also United States v. Charley, 176 F.3d 1265, 1281-84 (10th Cir.1999) (inquiring into whether the error had a “substantial influence” on the verdict or whether the court is left in “grave doubt” as to whether the evidence had such an effect (quoting United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (en banc))). Although the government makes no assertion whatsoever that the admission of these summaries without adequate foundation was harmless error, this court may in its discretion “initiate harmless error review in an appropriate case.” United States v. Torrez-Ortega, 184 F.3d 1128 (10th Cir.1999) (quotation omitted). In Torrez-Ortega, this court cited with approval three factors suggested by the Seventh Circuit in determining whether an appellate court should address harmlessness when the government has failed to do so: (1) the length and complexity of the record; (2) whether the harmlessness of the errors is certain or debatable; and (3) whether a reversal would result in protracted, costly, and futile proceedings in the district court. See id. (citing United States v. Giovannetti, 928 F.2d 225, 227 (7th Cir.1991)). The 2350 page record, over half of which constitutes trial transcript from a six-day jury trial, is lengthy. The length of the record is equaled or exceeded by its complexity. Samaniego and his co-defendant were indicted on over 70 counts, all addressed to their alleged participation in a several-dozen member multi-state conspiracy to distribute several tons of marijuana. Thirty of Samaniego’s thirty-one convictions involve discrete and specific transactions" }, { "docid": "8563886", "title": "", "text": "847 (9th Cir.2002) (holding that “any defect in the indictment was harmless”); United States v. Leos-Maldonado, 302 F.3d 1061, 1064(9th Cir.2002) (“Leos cannot meet the third condition[of the plain error standard].”). Except for the burden of proof, the third element of the plain error analysis is identical to the harmless error analysis: Both require us to determine whether the error “affect[ed] substantial rights,” i.e., prejudiced the defendant. United States v. Jordan, 291 F.3d 1091, 1095-96(9th Cir.2002). Compare Cotton, 535 U.S. at 631, 122 S.Ct. 1781 (setting forth the four prongs of plain error review: (1) an error; (2) that is plain; (3) that “affect[s] substantial rights ”; and (4) that “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings” (alteration in original) (emphasis added) (internal quotation marks omitted)), with Fed.R.Crim.P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” (emphasis added)). In Velasco-Medina and Leos-Maldonado, we held that omissions from indictments did not affect a defendant’s “substantial rights” because the defendant had notice of the missing element, because the weight of the evidence in the trial record established that element, and because the petit jury found the element proved beyond a reasonable doubt. Velasco-Medina, 305 F.3d at 847; Leos-Maldonado, 302 F.3d at 1064-65. Those holdings make it impossible to conclude that omissions from indictments are exempt from Rule 52(a) because they “are so intrinsically harmful,” Neder, 527 U.S. at 7, 119 S.Ct. 1827, that they necessarily “affect substantial rights.” See also id. (describing structural errors as those that “ ‘defy analysis by “harmless error” standards’ ” (quoting Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991))). Even more significant than those plain error decisions is a case in which we applied harmless error principles to review an indictment that was challenged in district court after the trial began. See United States v. James, 980 F.2d 1314, 1319 (9th Cir.1992) (concluding that “[t]he error in the indictment could have had no effect on the outcome of the trial and was harmless beyond a reasonable doubt ” (emphasis" }, { "docid": "23037192", "title": "", "text": "penalty. C. Harmless Error Even assuming that the indictment was defective because it failed to allege the requisite statutory aggravating factor or factors, Higgs would not be entitled to have his convictions or sentences overturned. It has long been “recognized that most constitutional errors can be harmless.” See Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (internal quotation marks omitted); Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (noting the settled “principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt”); Fed.R.Crim.P. 52(a) (providing that “[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded”). To determine whether a constitutional error is harmless, we ask “whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Neder, 527 U.S. at 15, 119 S.Ct. 1827 (internal quotation marks omitted). Higgs contends that such a “harmless error” inquiry is inappropriate because the indictment’s failure to charge the aggravating factors ultimately relied upon by the jury to impose a sentence of death is a structural error that mandates summary reversal of his capital convictions. We disagree. Unlike the vast majority of trial errors which are reviewed for harmlessness, structural errors are conclusively presumed to affect the substantial rights of the defendant because they “deprive defendants of ‘basic protections’ without which ‘a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair.’ ” Neder, 527 U.S. at 8-9, 119 S.Ct. 1827 (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). The Supreme Court has repeatedly stated that most constitutional errors are not structural and may, instead, be reviewed for harmlessness. See, e.g., id. at 8, 119 S.Ct. 1827. “If the defendant had counsel and was tried by an impartial adjudicator, there is" } ]

[ { "docid": "19107582", "title": "", "text": "The test for whether counsel has provided the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments was articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a person asserting a claim of ineffective assistance must satisfy a two prong test: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687, 104 S.Ct. at 2064. In a capital case, this two part test applies to claims of ineffective assistance during the sentencing phase as well as the guilt phase of the trial, because a “capital sentencing proceeding ... is sufficiently like a trial in its adversarial format and in the existence of standards for decision ... that counsel’s role in the proceeding is comparable to counsel’s role at trial — to ensure that the adversarial testing process works to produce a just result under the standards governing decision.” Id. at 686-87, 104 S.Ct. at 2064 (citations omitted). In subpart i, we examine Collier’s claims of ineffective assistance to determine whether he has satisfied the performance prong of the Strickland test. In subpart ii, we determine whether Collier has demonstrated that he was actually prejudiced by the acts and omissions of his attorneys. i. In order to satisfy his burden of demonstrating that his trial counsel were ineffective, Collier must demonstrate that their “representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. The performance inquiry thus seeks to determine whether, under “prevailing professional norms,” counsel’s “assistance was reasonable considering all the circumstances.” Id., 104 S.Ct. at 2065. In evaluating Collier’s ineffective assistance claim, we must give great deference to counsels’ choice of strategy and execution. Id. at 689," } ]

[ { "docid": "8292922", "title": "", "text": "issued Fields a COA in this case. “We ‘review a district court’s conclusions with regard to a petitioner’s § 2255 claim of ineffective assistance of counsel de novo.’ ” United States v. Molina-Uribe, 429 F.3d 514, 518 (5th Cir.2005) (quoting United States v. Conley, 349 F.3d 837, 839 (5th Cir.2003)). We review “a district court’s refusal to grant an evidentiary hearing on a § 2255 motion for abuse of discretion.” United States v. Cavitt, 550 F.3d 430, 435 (5th Cir.2008). III. DISCUSSION A. The Sixth Amendment guarantees defendants the “right to effective as sistance of counsel at every critical stage of the proceedings against them.” Burdim v. Johnson, 262 F.3d 336, 344 (5th Cir.2001); see Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003). This right “is denied when a defense attorney’s performance falls below an objective standard of reasonableness and thereby prejudices the defense.” Yarborough, 540 U.S. at 5, 124 S.Ct. 1 (citing Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). We review claims of ineffective assistance of counsel under the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir.1988). To satisfy this test, a petitioner “[f]irst ... must show that [his] counsel’s performance was deficient.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. The petitioner must demonstrate that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Second, the petitioner “must show that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. “This requires showing that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.” Id. To do so, the petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id." }, { "docid": "11190476", "title": "", "text": "of the United States.” 28 U.S.C. § 2254(d). Section 2254 creates a “highly deferential standard for evaluating state court rulings, which demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). The petitioner has the burden of showing that “there was no reasonable basis for the state court to deny relief.” Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). III. • The Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established the two-step process for assessing a Sixth Amendment claim of ineffective assistance of counsel: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052. To establish deficiency, the defendant “must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks omitted). However, the deference afforded counsel’s informed, strategic choices, does not eliminate counsel’s duty to “make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. Under Strickland’s second prong, a petitioner must establish “that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 466 U.S. at 687, 104 S.Ct. 2052; Day v. Quarterman, 566 F.3d 527, 536 (5th Cir.2009). Specifically, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been" }, { "docid": "18346067", "title": "", "text": "in § 2254(d)(1), encompasses only the holdings, as opposed to the dicta, of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. -, 127 S.Ct. 649, 658, 166 L.Ed.2d 482 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000)); Osborne v. Terry, 466 F.3d 1298, 1305 (11th Cir.2006). IV. DISCUSSION A. General Legal Principles The Supreme Court established the standards governing ineffective assistance of counsel claims in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail, a habeas petitioner must show that: (1) counsel’s performance was deficient because it fell below an objective standard of reasonableness; and (2) the deficient performance prejudiced the defense. Id. at 687-88, 104 S.Ct. at 2064; Grayson v. Thompson, 257 F.3d 1194, 1215 (11th Cir.2001). The standard for judging counsel’s performance is “ ‘reasonableness under prevailing professional norms.’ ” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.2000) (en banc) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065). The test for reasonableness is not whether counsel could have done something more or different; instead, we must consider whether the performance fell within the broad range of reasonable assistance at trial. Id. Furthermore, we recognize that “omissions are inevitable. But, the issue is not what is possible or ‘what is prudent or appropriate, but only what is constitutionally compelled.’ ” Id. (quoting Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 3126, 97 L.Ed.2d 638 (1987)). The burden of persuasion is on the petitioner to prove by a preponderance of the evidence that counsel’s performance was unreasonable. Id. Courts conduct highly deferential review of counsel’s performance and “ ‘indulge [the] strong presumption’ that counsel’s performance was reasonable and that counsel ‘made all significant decisions in the exercise of reasonable professional judgment.’ ” Id. at 1314 (quoting Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66); see also Williams v. Head, 185 F.3d 1223, 1235 (11th Cir.1999) (quoting same language from Strickland): Based on this strong presumption" }, { "docid": "1815132", "title": "", "text": "The familiar legal standards applicable to such claims derive from the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Williams, 529 U.S. at 390-91, 120 S.Ct. at 1511-12 (concluding that Strickland provided standards that were clearly established federal law applicable to ineffective assistance of counsel claims). In Fugate, we summarized these well-worn standards as follows: To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show (1) that “counsel’s performance was deficient” because it “fell below an objective standard of reasonableness,” Strickland, 466 U.S. at 687, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, and (2) that “the deficient performance prejudiced the defense,” id. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. In a capital case, the two-prong Strickland analysis is applied at both the guilt and penalty phases. Mincey v. Head, 206 F.3d 1106, 1142 (11th Cir.2000) (quoting Strickland, 466 U.S. at 686-87, 104 S.Ct. 2052, 80 L.Ed.2d 674). Counsel’s performance is entitled to “highly deferential” judicial scrutiny, and “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). This presumption is even stronger when the reviewing court is examining the performance of an experienced trial counsel. See Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir.2000) (en banc), cert. denied, 531 U.S. 1204, 121 S.Ct. 1217, 149 L.Ed.2d 129 (2001). In this case, the state habeas court acknowledged that ineffective assistance of counsel claims are governed by Strickland and that the petitioner was required to show both ineffectiveness and prejudice. To analyze the prejudice prong, a court must “evaluate the totality of the available mitigation evidence— both that adduced at trial, and the evidence adduced in the habeas proceeding — in reweighing it against the evidence in" }, { "docid": "16918936", "title": "", "text": "“We review de novo the district court’s decision about whether the [S]tate court acted contrary to clearly established federal law, or unreasonably applied federal law, or made an unreasonable determination of fact.” Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1332 (11th Cir.2009) (citing Hall v. Head, 310 F.3d 683, 690 (11th Cir.2002)). III. DISCUSSION A. Strickland Governs Claims of Ineffective Assistance In Strickland v. Washington, the United States Supreme Court established the federal law governing the evaluation of all ineffective assistance of counsel claims. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see 28 U.S.C. § 2254(d)(1). “The Sixth Amendment right to counsel includes the right to effective assistance of counsel, since the purpose of the right to counsel more generally is to ensure a fair trial.” Blankenship, 542 F.3d at 1272 (emphasis in original) (citing Strickland, 466 U.S. at 686, 104 S.Ct. at 2063-64). A petitioner’s claim that the assistance rendered by his counsel is “so defective as to require reversal of a ... death sentence has two components.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To establish an ineffective assistance of counsel claim under the Sixth Amendment, “[a] petitioner must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). To establish that counsel’s performance was deficient, “a petitioner must show that counsel’s representation fell below an objective standard of reasonableness.” Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir.2001) (citation and quotation marks omitted). The U.S. Supreme Court has “emphasized that [t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535 (citation and quotation marks omitted). To establish prejudice, the petitioner is required to prove “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. That is, “a petitioner must show" }, { "docid": "18057154", "title": "", "text": "show that “counsel’s representation fell below an objective standard of reasonableness,” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Wiggins, 539 U.S. at 521, 123 S.Ct. 2527; Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). If a defendant fails to satisfy either Strickland prong, we need not address both. See Windom v. Sec’y, Dep’t of Corr., 578 F.3d 1227, 1248 (11th Cir.2009) (“We need not determine whether counsel’s limited investigation into Windom’s background and mental health constituted deficient performance under the first prong of Strick7 land because we conclude that, even assuming counsel performed deficiently, Windom was not prejudiced thereby.”); see also Hall v. Head, 310 F.3d 683, 699 (11th Cir.2002). Because Brown has failed to satisfy Strickland’s prejudice prong, we assume for purposes of our decision that he met its performance prong, and only explore Strickland prejudice. For Brown to show prejudice, “It is not enough for the [petitioner] to show the errors had some conceivable effect on the outcome of the proceeding ...,” because “[v]irtually every act or omission of counsel would meet that test.” [Strickland, 466 U.S. at 693, 104 S.Ct. 2052], Nevertheless, a petitioner “need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Id. at 693[, 104 S.Ct. 2052], Rather, where, as here, a petitioner challenges a death sentence, “the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695[, 104 S.Ct. 2052], Putman v. Head, 268 F.3d 1223, 1248 (11th Cir.2001); see also Ferguson v. Sec’y for Dep’t of Corr., 580 F.3d 1183, 1198-99 (11th Cir.2009) (noting that Strickland asks if a different result is “reasonably probable,” not if it is “possible”). Thus, “[i]n assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating" }, { "docid": "7452139", "title": "", "text": "L.Ed.2d 674 (1984): First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687, 104 S.Ct. 2052. In other words, in order to prevail on a claim of ineffective representation, the petitioner must establish that, in light of all the circumstances, trial counsel’s performance fell below an objective standard of reasonableness and that the resulting prejudice deprived him of a fair trial. See Jones v. United States, 161 F.3d 397, 400 (6th Cir.1998) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Although we review the district court’s findings of fact pertinent to this question for clear error, the performance and prejudice components of the Strickland test are considered mixed questions of law and fact, and are thus subject to de novo review. See Sims v. Livesay, 970 F.2d 1575, 1579 (6th Cir.1992) (citing Strickland, 466 U.S. at 698, 104 S.Ct. 2052). We believe that Skaggs cannot meet the Strickland standard with respect to counsel’s performance at the guilt phase of the trial; however, we find that counsel’s very significant errors at the penalty phase of the trial—particularly the failure to investigate and present meaningful mitigating evidence, and their decision to use an incompetent and fraudulent “psychologist” as the central mitigation witness—rendered counsel constitutionally ineffective, such that our confidence in the outcome of the penalty phase of Skaggs’s trial has been nullified. 1. Guilt Phase Before trial, Skaggs’s counsel informed the court that he wished to raise a mental illness defense at trial. Because Skaggs was an indigent defendant with appointed counsel, he had the right to a psychiatric expert under Ake v. Oklahoma, The court appointed two psychiatric experts to assist Skaggs, but both experts refused to serve. The court then" }, { "docid": "13105946", "title": "", "text": "governing ineffective assistance claims in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003). “An ineffective assistance claim has two components: A petitioner must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense.” Id. (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674). Bearing these principles in mind, we consider whether the Alabama courts’ rejection of Williams’ ineffective assistance claim constituted an unreasonable application of Strickland. We address the performance and prejudice factors in turn. 1. Deficient Performance To establish deficient performance, a petitioner must demonstrate that counsel’s representation “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. The Supreme Court has “declined to articulate specific guidelines for appropriate attorney conduct and instead [has] emphasized that ‘[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.’ ” Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535 (second alteration in original) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2052). In applying this standard, we “ ‘indulge [the] strong presumption’ that counsel’s performance was reasonable and that counsel ‘made all significant decisions in the exercise of reasonable professional judgment.’ ” Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir.2000) (en banc) (alteration in original) (quoting Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66). Accordingly, a petitioner seeking to establish deficient performance bears a heavy — albeit not insurmountable — burden of persuasion. Id. In this case, the claim of deficient performance is based on trial counsel’s failure to investigate and present mitigating evidence concerning Williams’ background. We have recognized that “[a]n attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant’s background, for possible mitigating evidence.” Porter v. Singletary, 14 F.3d 554, 557 (11th Cir.1994) (citation omitted). This duty does not necessarily require counsel to investigate every evidentiary lead. Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.1989). However, the decision to limit an investigation “must flow" }, { "docid": "23168659", "title": "", "text": "the robbery and murder of Mr. Cantrell. We address these objections in turn. A. The standard for ineffective assistance of counsel is well-settled. “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000) (internal quotation marks omitted) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)); accord, Chandler v. United States, 218 F.3d 1305, 1312-1313 (11th Cir.2000) (en banc), cert. denied, — U.S. -, 121 S.Ct. 1217, 149 L.Ed.2d 129 (2001). The petitioner bears the burden of proof on the “performance” prong as well as the “prejudice” prong of a Strickland claim, and both prongs must be proved to prevail. The Strickland test is not easily met; as we have said, “the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.’ ” Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir.1995) (en banc) (citation omitted). To establish ineffective performance, a “petitioner must show that ‘counsel’s representation fell below an objective standard of reasonableness.’ ” Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986) (quoting Strickland, 466 U.S. at 668, 104 S.Ct. at 2065). This Circuit reviews a lawyer’s conduct under the “performance” prong with considerable deference, giving lawyers the benefit of the doubt for “heat of the battle” tactical decisions. See Mills v. Singletary, 161 F.3d 1273, 1285-6 (11th Cir.1998) (noting that Strickland performance review is a “deferential review of all of the circumstances from the perspective of counsel at the time of the alleged errors”); see also Waters, 46 F.3d at 1518 (“The test for ineffectiveness is not whether" }, { "docid": "23168660", "title": "", "text": "both prongs must be proved to prevail. The Strickland test is not easily met; as we have said, “the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.’ ” Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir.1995) (en banc) (citation omitted). To establish ineffective performance, a “petitioner must show that ‘counsel’s representation fell below an objective standard of reasonableness.’ ” Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986) (quoting Strickland, 466 U.S. at 668, 104 S.Ct. at 2065). This Circuit reviews a lawyer’s conduct under the “performance” prong with considerable deference, giving lawyers the benefit of the doubt for “heat of the battle” tactical decisions. See Mills v. Singletary, 161 F.3d 1273, 1285-6 (11th Cir.1998) (noting that Strickland performance review is a “deferential review of all of the circumstances from the perspective of counsel at the time of the alleged errors”); see also Waters, 46 F.3d at 1518 (“The test for ineffectiveness is not whether counsel could have done more; perfection is not required. Nor is the test whether the best criminal defense attorneys might have done more. Instead the test is ... whether what they did was within the ‘wide range of reasonable professional assistance.’” (citation omitted)); Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.1994) (stating that “[w]hen reviewing whether an attorney is ineffective, courts should always presume strongly that counsel’s performance was reasonable and adequate” (internal quotation marks omitted)). This Court, sitting en banc, recently discussed this inquiry at length in Chandler: The standard for counsel’s performance is reasonableness under prevailing professional norms. The purpose of ineffectiveness review is not to grade counsel’s performance.... To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. But, the issue is not what is possible or what is prudent or appropriate, but only what is constitutionally compelled.... The petitioner must establish that particular and identified acts or omissions of counsel were outside the wide range of professionally competent" }, { "docid": "16473014", "title": "", "text": "suppressed evidence undermines our confidence either in the verdict or in the punishment imposed, Petitioner cannot succeed under his first theory for relief. III. Strickland v. Washington Petitioner next claims that he suffered ineffective assistance of counsel during both the guilt and penalty phases of his trial. First, he argues that his trial counsel was ineffective in failing to discover that one of the jurors was ineligible for jury duty. Second, he contends that his trial counsel was ineffective for failing to present expert testimony regarding the impact of long term incarceration on Petitioner’s psyche and conduct. Neither claim merits relief. A. Legal Framework Claims of ineffective assistance of counsel are analyzed under the familiar two-part performance and prejudice framework established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. “Ineffectiveness is not a question of basic, primary, or historical fact,” but rather is “a mixed question of law and fact.” Id. at 698, 104 S.Ct. 2052. This Court determines whether counsel’s performance was deficient by reference to an objective standard of reasonableness, based on prevailing professional norms. Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir.1997) (citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Counsel’s performance must be" }, { "docid": "13788181", "title": "", "text": "ineffectiveness, Eagle has avoided the need to justify his procedural default of the Batson claim. We review the district court’s denial of habeas corpus relief de novo. See Agan v. Singletary, 12 F.3d 1012, 1017 (11th Cir.1994). In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2062, 80 L.Ed.2d 674 (1984), the Supreme Court held that the Sixth Amendment Counsel Clause guarantees criminal defendants a right to effective assistance of counsel. The Court in Strickland articulated a two-pronged test for determining whether a defendant was denied constitutionally adequate assistance of counsel: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687, 104 S.Ct. at 2064. The same standard applies whether we are examining the performance of counsel at the trial or appellate level. See Matire v. Wainwright, 811 F.2d 1430, 1436 (11th Cir.1987). A. To demonstrate that his appellate counsel rendered deficient representation, Eagle must show that her performance “fell below an objective standard of reason ableness.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Eagle asserts that it was unreasonable for counsel not to raise the Batson claim on appeal. As we noted in Bolender v. Singletary, 16 F.3d 1647, 1558 n. 12 (11th Cir.1994) (citations omitted), “[t]he question of whether a decision by counsel was a tactical one is a question of fact.” “Whether the tactic was reasonable, however, is a question of law and is reviewed de novo.” Collier v. Turpin, 177 F.3d 1184, 1199 (11th Cir.1999) (citing Horton v. Zant, 941 F.2d 1449, 1462 (1991)). The record contains no testimonial evidence as to whether Eagle’s appellate counsel made a tactical decision not to raise the Batson claim or, rather, simply overlooked that potential ground for reversal. Eagle did not specifically question his" }, { "docid": "16853716", "title": "", "text": "L.Ed.2d 389 (2000) (“[A]n unreasonable application of federal law is different from an incorrect application of federal law”). Our review of the district court’s decision to deny habeas relief is de novo. Spencer v. Sec’y, Dep’t of Carr., 609 F.3d 1170, 1177 (11th Cir.2010); Fotopoulos v. Sec’y, Dep’t of Carr., 516 F.3d 1229, 1232 (11th Cir.2008). We review any factual findings made by the district court for clear error, however. Spencer, 609 F.3d at 1177. A. To succeed on an ineffective assistance of counsel claim, Bishop has the burden of demonstrating both deficient performance and prejudice: he must establish both that “counsel’s representation fell below an objective standard of reasonableness,” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The Supreme Court also made clear in Strickland that a court need not address both prongs if the petitioner has made an insufficient showing on one of them, and that “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. at 697, 104 S.Ct. 2052; accord Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.2000) (“[T]he court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.” (citation omitted)). Moreover, we do not apply Strickland de novo, but rather through the additional prism of AEDPA deference. See 28 U.S.C. § 2254(d)(1). Under this standard, “[t]he pivotal question is whether the state court’s application of the Strickland standard was unreasonable.” Richter, 131 S.Ct. at 785; accord id. (“A state court must be granted a deference and latitude that are not in" }, { "docid": "2749972", "title": "", "text": "defendant must satisfy the familiar two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, he must show that counsel’s performance was deficient. To meet this prong, the defendant must demonstrate that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Id. at 687, 104 S.Ct. 2052. There is a strong presumption that counsel’s conduct fell within the range of reasonable professional assistance, and, therefore, counsel’s performance is deficient only if it falls below the wide range of competence demanded of lawyers in criminal cases. Id. at 689, 104 S.Ct. 2052. Then, the defendant must show that he suffered prejudice as a result of that performance. Id. at 687, 104 S.Ct. 2052. This requires establishing a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. A habeas petitioner claiming ineffective assistance of counsel must carry his burden on both Strickland prongs, and a court need not address both prongs if the defendant has made an insufficient showing on one. See id. at 697, 104 S.Ct. 2052; Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir.2001). The Supreme Court has long recognized that Strickland’s two-part inquiry applies to ineffective assistance of counsel arising out of the plea process. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Recently, in Missouri v. Frye, — U.S.-, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper, — U.S.-, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the Court clarified that the Sixth Amendment right to the effective assistance of counsel extends specifically “to the negotiation and consideration of plea offers that lapse or are rejected.” In re Perez, 682 F.3d 930, 932 (11th Cir.2012) (per curiam). The Court concluded that, in order to establish prejudice, a defendant must show a reasonable probability that but for counsel’s ineffectiveness: (1) “the plea offer would have been" }, { "docid": "465833", "title": "", "text": "counsel was ineffective at the guilt phase for three main reasons: (1) counsel failed to investigate and to present a self-defense argument, (2) counsel failed to challenge the state’s case on premeditation, and (3) counsel failed to cross-examine witnesses adequately. We review Petitioner’s claim of ineffective assistance de novo. Williams v. Head, 185 F.3d 1223, 1226-27 (11th Cir.1999). To prevail on a claim of ineffective assistance, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Petitioner first argues that trial counsel’s tactic not to present an argument of self-defense was deficient because it was not an informed decision made pursuant to an investigation. But, no absolute duty exists to investigate a particular line of defense. Counsel’s decision not to conduct an investigation need only be reasonable. See Strickland, 104 S.Ct. at 2066 (“[Cjounsel has a duty ... to make a reasonable decision that makes particular investigations unnecessary.”). This Circuit has refused to conclude that tactics “can be considered reasonable only if they are preceded by a ‘thorough investigation’”. Williams, 185 F.3d at 1236-37. “The reasonableness of a counsel’s performance is an objective inquiry.” See Chandler v. U.S., 218 F.3d 1305 (11th Cir.2000)(en banc); see also Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 2474, 91 L.Ed.2d 144 (1986) (noting that counsel’s performance did not fall below “an objective standard of reasonableness”). The inquiry focuses on whether a reasonable attorney could have acted in the same manner as trial counsel did act at the trial. See Chandler, 218 F.3d at 1315; see also Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.1995) (en banc)(“The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial ... ”). A reasonable attorney — in these circumstances — could have decided not to pursue" }, { "docid": "7452138", "title": "", "text": "and every ground raised by Skaggs in his habeas petition. As we stated at the outset, we find that only one issue raised by Skaggs warrants our discussion: whether Skaggs was denied his Sixth Amendment right to effective assistance of counsel. With respect to this issue, we conclude that the requirements set forth in post-AEDPA § 2253(c) have been met, because Skaggs’s Sixth Amendment claims make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c); see Mackey v. Dutton, 217 F.3d 399, 406-07 (6th Cir.2000) (holding that when a district court grants a certificate of probable cause instead of a COA, a reviewing court may consider an issue raised so long as the issue satisfies the statutory standards set forth in § 2253(c)). Accordingly, Skaggs’s claim of ineffective assistance of counsel is properly before this court. C. Ineffective Assistance of Counsel The familiar standard by which a Sixth Amendment ineffective assistance of counsel claim is reviewed is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687, 104 S.Ct. 2052. In other words, in order to prevail on a claim of ineffective representation, the petitioner must establish that, in light of all the circumstances, trial counsel’s performance fell below an objective standard of reasonableness and that the resulting prejudice deprived him of a fair trial. See Jones v. United States, 161 F.3d 397, 400 (6th Cir.1998) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Although we review the district court’s findings of fact pertinent to this question for clear error, the performance and prejudice components of the Strickland test" }, { "docid": "3393970", "title": "", "text": "applies it to the facts of the particular defendant’s case. Id. at 407, 120 S.Ct. 1495. A state court’s factual findings are presumed correct unless they are rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Ferrell’s two main arguments concern the ineffectiveness of trial counsel at the penalty phase, and the ineffectiveness of appellate counsel in conducting the same search for mitigating evidence to present in support of a motion for a new trial and on direct appeal. To succeed on these Sixth Amendment claims, Ferrell must show both deficient performance and prejudice: he must establish first that “counsel’s representation fell below an objective standard of reasonableness,” and then that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). “The question of whether an attorney’s actions were actually the product of a tactical or strategic decision is an issue of fact, and a state court’s decision concerning that issue is presumptively correct.” Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir.1998). However, “the question of whether the strategic or tactical decision is reasonable enough to fall within the wide range of professional competence is an issue of law not one of fact.” Id. Under AEDPA, we accord deference to a state court’s determinations on both Strickland prongs — performance and prejudice — so long as the state court reached the merits of the petitioner’s claim, and reached both prongs of the Strickland analysis. Moreover, we are instructed to afford state court habeas decisions a strong presumption of deference, even when the state court adjudicates a petitioner’s claim summarily — without an accompanying statement of reasons. Harrington v. Richter, - U.S.-, 131 S.Ct. 770, 780, 784, 178 L.Ed.2d 624 (2011); Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir.2002); see" }, { "docid": "1815131", "title": "", "text": "made by a State court shall be presumed to be correct,” and Crawford bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). For the reasons explained below, we conclude that the state court’s decision with respect to Crawford’s claim of ineffective assistance during the guilt-innocence phase of trial does not fall outside of the range of decisions to which we must defer under these standards, and Crawford consequently is not entitled to relief on that claim. With respect to Crawford’s penalty phase claim, we conclude that Crawford has failed to establish prejudice in support of his claim. Therefore, Crawford is not entitled to relief with respect to either of his ineffective assistance of counsel claims. 1. The Strickland Standard In order to begin our review of Crawford’s ineffective assistance of counsel claims, we must determine what the clearly established federal law as set out in Supreme Court decisions was as of the time that the state courts reviewed Crawford’s claims. See Robinson, 300 F.3d at 1342-43. The familiar legal standards applicable to such claims derive from the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Williams, 529 U.S. at 390-91, 120 S.Ct. at 1511-12 (concluding that Strickland provided standards that were clearly established federal law applicable to ineffective assistance of counsel claims). In Fugate, we summarized these well-worn standards as follows: To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show (1) that “counsel’s performance was deficient” because it “fell below an objective standard of reasonableness,” Strickland, 466 U.S. at 687, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, and (2) that “the deficient performance prejudiced the defense,” id. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. In a capital case, the two-prong Strickland analysis is applied at both the guilt and penalty phases. Mincey v. Head, 206 F.3d 1106, 1142 (11th Cir.2000) (quoting Strickland, 466 U.S. at 686-87, 104 S.Ct. 2052, 80 L.Ed.2d 674). Counsel’s performance is entitled to “highly deferential” judicial scrutiny, and “a court" }, { "docid": "22246555", "title": "", "text": "of ineffective assistance of counsel a petitioner must satisfy a two-prong test: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). When reviewing an ineffective assistance claim in a capital ease, we apply this two-prong test to the penalty phase as well as the guilt phase, because a capital sentencing proceeding ... is sufficiently like a trial in its adversarial format and in the existence of standards for decision ... that counsel’s role in the proceeding is comparable to counsel’s role at trial — to ensure that the adversarial testing process works to produce a just result under the standards governing decision. Id. at 686-87, 104 S.Ct. at 2064 (citations omitted). With respect to the first prong of the analysis, showing that counsel’s performance was deficient, Mincey had to demonstrate that his defense attorneys’ “representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. We judge the performance of a defense attorney with an eye towards “prevailing professional norms.” We must respect the counsel’s tactical decisions if they seem “reasonable considering all the circumstances.” Id., 104 S.Ct. at 2065. To that end, we give great deference to counsel’s choices and make every effort “to eliminate the distorting effects of hindsight,.to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. at 2065. We must also bear in mind that “[t]he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.” Id. at 691, 104 S.Ct. at 2066. Finally, in order to prevail on Strickland’s first prong, the petitioner “must" }, { "docid": "23047605", "title": "", "text": "cannot be relied on as having produced a just result.” 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In order to prevail on an ineffective-assistance-of-counsel claim, a petitioner must establish two things. First, he must prove that counsel’s performance was deficient. “Second, the [petitioner] must show that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. at 2064. We echo the caution sounded by the Court in Strickland: “Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.” Id. at 693, 104 S.Ct. at 2067. We also note the absence of any iron-clad rule requiring a court to tackle one prong of the Strickland test before the other. Indeed, we previously have concluded that because both parts of the test must be satisfied to show a Sixth Amendment violation, a court need not address the performance prong if the petitioner cannot meet the prejudice prong, and vice-versa. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.2000). In order to prove the deficient performance prong of the Strickland test, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. “Judicial scrutiny of counsel’s performance must be highly deferential” and there is a “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065. Indeed, as we have said, “[t]he test for ineffectiveness is not whether counsel could have done more; perfection is not required. Nor is the test whether the best criminal defense attorneys might have done more. Instead, the test is ... whether what [counsel] did was within the wide range of reasonable professional assistance.” Waters, 46 F.3d at 1518 (quotation marks and citation omitted). In order to establish that counsel’s conduct was unreasonable, therefore, the petitioner must prove “that no competent counsel would have taken the action that his counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir.2000)" } ]

[ { "docid": "5642107", "title": "", "text": "detailing drug transactions as well as Hu-guez-Ibarra’s motion to exclude the car payment receipt. The notebooks were admitted with a limiting instruction. In addition, the court denied Huguez-Ibarra’s motion for a continuance or mistrial based on the late disclosure of the videotape and the agents’ notes. Finally, the court denied Huguez-Ibarra’s proffered jury instruction on a so-called “lesser included offense.” Both Appellants were found guilty on each count of the indictment. On July 22, 1988, Huguez-Ibarra filed a motion for a new trial which was denied on September 16, 1988. On September 16, 1988, both Appellants were sentenced to six years im prisonment on both counts to run concurrently with one another. DISCUSSION 1. The Motions to Suppress Appellants have argued for suppression of evidence seized in the warrant-less search of the residence, and for evidence seized pursuant to the search warrants. We review de novo the trial court’s determination of the validity of a warrant-less entry into a residence. United States v. Lindsey, 877 F.2d 777, 780 (9th Cir.1989). In assessing the validity of the searches conducted pursuant to the warrants, we review the magistrate’s decision that probable cause existed for clear error. The district court’s determination of probable cause in a case with redacted affidavits is reviewed de novo. United States v. Dozier, 844 F.2d 701, 706 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988). A. The Warrantless Entry The agents’ warrantless entry securing the residence was a seizure subject to the requirements of the Fourth Amendment. United States v. Howard, 828 F.2d 552, 554 (9th Cir.1987). The government has the burden of justifying the seizure under one of a few specifically established exceptions to the warrant requirement. To justify a warrantless entry, the government must demonstrate both probable cause and the existence of an exception to the warrant requirement, such as exigent circumstances. Lindsey, 877 F.2d at 780. Because we find that there was no probable cause, we need not consider whether exigent circumstances existed. In reviewing a warrantless entry, it is up to this court “to make a practical, commonsense" } ]

[ { "docid": "19092183", "title": "", "text": "sock, one loaded with methamphetamine. D. District court proceedings Following their indictments for conspiracy to distribute and possession with intent to distribute fifty grams or more of methamphetamine, the defendants filed separate motions to suppress, which the district court denied. As to Hearn, the court found that exigent circumstances justified the officers’ warrantless entry into room 1711. The court also observed that the officers did not actually search the hotel room until they obtained a valid warrant. The district court found that the officers had probable cause for Collins’s arrest and that she knowingly and voluntarily waived her Miranda rights and freely consented to the officers’ search of her vehicle. Finally, the district court found that the officers had probable cause for Hammond’s arrest and that exigent circumstances justified the officers’ warrantless entry into room 923. After these rulings, the defendants each pleaded guilty to certain charges in the indictment. Each defendant reserved the right to challenge the district court’s denial of his or her motion to suppress. II. DISCUSSION In this consolidated appeal, the defendants challenge the propriety of the district court’s suppression rulings. When examining a district court’s ruling on a motion to suppress, we review questions of law de novo and factual findings for clear error. United States v. Hernandez, 279 F.3d 302, 306 (5th Cir.2002). Factual findings are clearly erroneous only if a review of the record leaves this Court with a “definite and firm conviction that a mistake has been committed.” Id. (citation omitted). A. Defendant Hearn — grounds for entering room 1711 Hearn contends that the district court committed reversible error by denying his motion to suppress the evidence. He argues that no exigent circumstances excused the officers’ warrantless entry into room 1711, or, alternatively, that the officers created the exigent circumstances through their own actions. We need not address Hearn’s arguments. Even assuming the unlawfulness of the officers’ entry into room 1711, the district court’s denial- of Hearn’s motion to suppress must be affirmed based on the untainted portions of the search warrant obtained by the officers shortly after their entry. See Sojourner" }, { "docid": "9743535", "title": "", "text": "the warrant did not constitute a search. On August 4, 1998, a jury convicted defendant of possession with intent to distribute heroin under count one of the indictment. Based on the 293.3 grams of heroin initially found in the package, defendant was assigned a base offense level of 26 under the Sentencing Guidelines. He was sentenced to seventy-two months in prison followed by a four year term of supervised release, and he was ordered to pay $150,032.24 in fines and to cover the costs of incarceration. Defendant now brings this appeal. II. A. Defendant first argues that the district court erred in denying his motion to suppress the heroin seized by agents at the Brace Street residence. Defendant alleges that the initial entry and the arrest of defendant were warrantless and illegal and that, as a result, any evidence seized later following the issuance of the telephonic search warrant should have been suppressed as well. In addition, defendant contests the district court’s conclusion that the examination of defendant’s hands did not constitute an impermissible search of his person. A district court’s findings of fact are reviewed only for clear error. The district court’s conclusion that facts constitute exigent circumstances for Fourth Amendment purposes is reviewed de novo. United States v. Rohrig, 98 F.3d 1506, 1511 (6th Cir.1996); United States v. Slaughter, 950 F.2d 1223, 1230 (6th Cir.1991). Warrantless searches are presumptively unreasonable under the Fourth Amendment. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). That presumption can be rebutted, however, by the existence of probable cause and exigent circumstances. The Supreme Court has held that “[wjhere there are exigent circumstances in which police action literally must be ‘now or never’ to preserve the evidence of the crime, it is reasonable to permit action without pri- or judicial evaluation.” Roaden v. Kentucky, 413 U.S. 496, 505, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). The law is well-settled that a warrant-less entry will be sustained when the circumstances then extant were such as to lead a person of reasonable caution to conclude that evidence of" }, { "docid": "3114704", "title": "", "text": "PER CURIAM: Jean Baptiste Joseph appeals his convictions for being a felon in possession of a firearm, possession with intent to distribute ethylone and marijuana, and for possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A)(ii), and 21 U.S.C. § 841(a)(1). Joseph also challenges the reasonableness of his 660-month total sentence. No reversible error has been shown; we affirm. I. Joseph challenges the district court’s denial of his motion to suppress evidence seized during two searches of Joseph’s bedroom. Joseph contends that no exigent circurpstances existed to justify the war-rantless entry into—and the initial search of—his bedroom. Joseph also argues that he did not consent voluntarily to the second search of his bedroom. In considering the district court’s denial of a motion to suppress, we review fact determinations for clear error and application of law to the facts de novo. United States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007). We construe all facts in the light most favorable to the prevailing party. See id. Under the Fourth Amendment, the police are prohibited “from making a war-rantless and non-consensual entry into a suspect’s home for purposes of making a felony arrest, unless exigent circumstances are present.” United States v. Standridge, 810 F.2d 1034, 1036 (11th Cir. 1987) (citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). We have identified, at least, five factors as being indicative of exigent circumstances justifying a warrantless entry: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) a reasonable belief that the suspect is armed; (3) probable cause to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; [and] (5) a likelihood that delay could cause the escape of the suspect or the destruction of essential evidence, or jeopardize the safety of officers or the public. Id. at 1037. Circumstances in this case—viewed in the light most favorable to the government—were sufficiently exigent to justify the officers’" }, { "docid": "9593509", "title": "", "text": "while he was at the station house, and from his apartment. The district court found that, while it was “a close case,” there was probable cause for Dessesaure’s arrest on the street. Id. at 91. The search at the station house was, as a result, also justified as a search incident to a lawful arrest. Id. Nonetheless, the district court granted Dessesaure’s motion to suppress the evidence found in his apartment on the grounds that there was no exigency that would justify a war-rantless entry and that any testimony by Broderick suggesting exigent circumstances was not credible. Id. The district court found that absent exigency, the pre-warrant entry into the apartment constituted a violation of the Fourth Amendment. Id. at 92-93. The district court further found that the warrant affidavit used tainted information, that is, (1) the observations made pursuant to the illegal pre-warrant entry, and (2) Broderick and Seoane’s testimony as to statements made by Dessesaure while in custody regarding the location of heroin in his apartment, which the court had found to be fabricated. Id. at 93-94. The district court concluded that the remaining untainted evidence “[did] not suffice to create probable cause to conclude that Dess-esaure kept drugs in his apartment, or anywhere else besides his car” and so suppressed all the evidence found in the apartment. Id. at 94. The government appeals only this finding as to probable cause and the suppression of the evidence from-Dessesaure’s apartment, leaving urn-challenged the court’s underlying findings regarding the legality of the warrantless entry and the falsity of the officers’ testimony. II. We turn to whether the district court erred in suppressing the evidence seized pursuant to the search warrant. Our review is bifurcated; factual findings are examined for clear error, while ultimate questions as to whether the later search under the warrant violated' the Fourth Amendment are reviewed de novo. See United States v. Weidul, 325 F.3d 50, 51 (1st Cir.2003). The district court’s analysis, as it correctly articulated, was governed by Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and Murray v. United" }, { "docid": "23129823", "title": "", "text": "all questions of law de novo. a. Warrantless Entry of Clear Cove Residence Manuel argues that evidence of statements he purportedly made to FBI agents after they had entered the Clear Cove residence to conduct a protective sweep should have been suppressed as fruit from the poisonous tree, because, according to Manuel, the statements were obtained as a direct result of that allegedly unconstitutional entry. He does not argue that the FBI agents lacked probable cause to enter his Clear Cove residence; rather, he complains that his Fourth Amendment guarantee to be free from unreasonable searches and seizures was violated because the agents did not have a warrant to enter his home. The government relies on the “exigent circumstances” exception to the warrant requirement to justify its entry into the Clear Cove residence. i. Exigent Circumstances Although presumptively un reasonable, a warrantless entry will survive constitutional scrutiny if, inter alia, “exigent cir cumstances exist to justify the intrusion.” The burden is on the government to prove the existence of the exigency. Exigent circumstances “include those in which officers reasonably fear for their safety, where firearms are present, or where there is a risk of a criminal suspect’s escaping or fear of destruction of evidence.” In evaluating whether exigent circumstances existed, we have found relevant the following factors: (1) the degree of urgency involved and amount of time necessary to obtain a warrant; (2) [the] reasonable belief that contraband is about to be removed; (8) the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband and the knowledge “that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.” There can be little doubt that exigent circumstances existed once the agents abandoned their covert surveillance of the Clear Cove residence and arrested Cuero in the van that was parked in front of that residence. As the district court aptly" }, { "docid": "10434532", "title": "", "text": "Defendants’ motions to suppress the evidence found in the apartment. This appeal followed. On appeal, the government contends the district court erred in granting Defendants’ motion to suppress. Specifically, the government argues that the district court applied the wrong legal standard to determine whether the agents’ decision to dispense with the knock and announce requirement of 18 U.S.C. § 3109 was justified. Applying the correct standard, the government asserts there were exigent circumstances sufficient to excuse the agents’ noncomplianee with § 3109 because the agents had an objectively reasonable belief that there was an emergency situation based upon the particular facts of the case. We address the government’s arguments in turn. The government first contends that the district court erred in granting Defendants’ motion to suppress because it applied the wrong legal standard when it determined that the government had failed to justify the FBI agents’ decision to effect a no-knock passkey entry of the apartment. In its conclusions of law, the district court ruled that “[t]o invoke the ‘physical peril to officer’ exception [to § 3109], the government must demonstrate with concrete, palpable facts that the defendant presents a danger to law enforcement officers in the context of resisting arrest with violence.” D.Ct. Order at 12. The government contends that the district court’s “resisting arrest with violence” standard is not supported by our precedent, and required too high a level of certainty that Defendant Maden would violently resist the agents’ entry into the apartment to excuse the agents’ noncompliance with § 3109. On appeal from a motion to suppress, we accept the district court’s factual findings unless clearly erroneous, review questions of law de novo, and view the evidence in the light most favorable to the prevailing party. United States v. Williamson, 1 F.3d 1134, 1135 (10th Cir.1993). The question whether exigent circumstances exist to excuse compliance with 18 U.S.C. § 3109 presents a mixed question of fact and law which we review de novo. United States v. Stewart, 867 F.2d 581, 584 (10th Cir.1989). The statutory standard which governs the agents’ conduct in the instant case is contained" }, { "docid": "21177688", "title": "", "text": "they were justified in attempting to grab him. The government asserted that the officers likely had probable cause to arrest Mowatt for marijuana possession and they at least had reasonable suspicion and a right to ensure that Mowatt did not have a weapon. The government alternatively maintained that even if the initial entry into the apartment was illegal, the evidence recovered via the search warrant was admissible because the officers relied in good faith on the warrant’s issuance. The district court denied Mowatt’s motion. The court ruled that the officers had probable cause to arrest Mowatt for marijuana possession and for assault (for striking Officer Parker). The court further decided that once Mowatt realized the officers were present, the risk of destruction of the evidence of marijuana possession constituted exigent circumstances justifying the officers’ warrantless entry into the apartment. The court reasoned that it was not necessary for the officers to obtain a warrant prior to approaching Mowatt’s apartment because their purpose in knocking on the apartment door was only to resolve the noise complaint, not to investigate a possible drug crime. The court also determined that the officers acted in good faith as evidenced by the fact that they did not seize any items prior to calling then-supervisor and obtaining a warrant and that their concern prior to entering the apartment had been only to resolve the noise complaint and not to investigate the smell of marijuana. After a jury trial in which the evidence at issue was admitted, Mowatt was convicted on all counts and sentenced to 197 months’ imprisonment. II. Mowatt argues that the district court erred in denying his suppression motion. In considering a district court’s decision regarding a motion to suppress, we review legal conclusions de novo and factual findings for clear error. See United States v. Seidman, 156 F.3d 542, 547 (4th Cir.1998). We also review for clear error a finding that exigent circumstances were present. United States v. Turner, 650 F.2d 526, 528 (4th Cir.1981). It is well established that, even when officers have probable cause to believe that contraband is present in" }, { "docid": "6274097", "title": "", "text": "Fourth Amendment to the United States Constitution; thus, he claims, the evidence uncovered as a result of the subsequently acquired and executed search warrant should be suppressed as fruit of the poisonous tree. See, e.g., Wong Sun v. United States, 871 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). First, Johnson argues that the search took place within the curtilage of his home, and thus was subject to the Fourth Amendment’s warrant requirement. Second, Johnson argues that the search cannot be supported by any exception to the Fourth Amendment’s warrant requirement, such as the “hot pursuit” or “exigent circumstances” exceptions. Because we conclude that the search was justified by hot pursuit and exigent circumstances, we assume but do not decide that the search occurred within the curtilage of Johnson’s home, and thus the warrant requirement of the Fourth Amendment was implicated. Johnson advances three reasons for his assertion that no exception to the warrant requirement made the officers’ initial entrance onto the property to search for Smith a constitutionally legitimate entrance and search. First, he argues that the officers had no objective knowledge that Smith was located on Johnson’s property. Second, he argues that the officers were not engaged in “hot pursuit” of Smith because their pursuit was neither immediate nor continuous. Finally, he argues that even if the officers were engaged in hot pursuit of Smith, the hot pursuit exception may not be applied where the pursuit is based on outstanding misdemeanor warrants. A. Standard of Review The validity of a warrantless search is reviewed de novo. United States v. Van Poyck, 77 F.3d 285, 290 (9th Cir. 1996). Probable cause determinations are reviewed de novo. United States v. Suarez, 902 F.2d 1466, 1467 (9th Cir.1990). Exigent circumstances present a mixed question of law and fact reviewed de novo. United States v. VonWillie, 59 F.3d 922, 925 (9th Cir.1995). However, findings of fact underlying the district court’s determination of exigent circumstances are reviewed for clear error. Id. B. Warrantless Searches — The Government’s Burden Because we assume that the search for Smith occurred within the curtilage of" }, { "docid": "12236605", "title": "", "text": "pursuant to Federal Rule of Criminal Procedure 11(a)(2). He was sentenced to 235 months’ imprisonment and 5 years supervised release. On appeal, Pierson argues that: (1) the district court erred in refusing to suppress the evidence seized from the hotel room because the officers’ entry into the room was unlawful, and therefore any evidence obtained as a result of such entry is “fruit of the poisonous tree;” and (2) his subsequent abandonment of the garment bag as well as his written consent to search the room was involuntary. II. DISCUSSION “We review the facts supporting the district court’s denial of the motion to suppress for clear error and review de novo the legal conclusions based on those facts.” United States v. Glenn, 152 F.3d 1047, 1048 (8th Cir.1998). First, we reject Pierson’s claim that the officers’ entry into room 243 was unlawful. The district court found: (1) Pierson was lawfully arrested without a warrant because he was in a public place; and (2) the officers’ subsequent entry into room 243 was supported by exigent circumstances. We agree with both findings. Once Pierson exited his room, the officers were entitled to arrest him without a warrant. See United States v. Wixom, 460 F.2d 206, 209 (8th Cir.1972) (no arrest warrant needed for arrest outside motel room as long as officer had probable cause to believe felony had been committed). Thereafter, exigent circumstances justified the officers’ entry into the room: Pierson was barely outside room 243 when arrested by the officers; Conklin was still in the room with the drugs and was ostensibly aware of the commotion taking place just outside the door; and she could have de stroyed the evidence if the officers had decided to wait for a search warrant before entering the room. See United States v. Knobeloch, 746 F.2d 1366, 1366-67 (8th Cir.1984). Although the officers’ entry into the room was lawful on the basis of exigent circumstances, it does not legitimate the subsequent search of the garment bag. See United States v. Halliman, 923 F.2d 873, 880 (D.C.Cir.1991) (lawful entry into hotel room based on exigent circumstances" }, { "docid": "5474657", "title": "", "text": "PER CURIAM: The defendant, Ronald Thompson, appeals his convictions on two grounds: (1) that the district court erred in finding that there were exigent circumstances which justified a warrantless search of his residence; and (2) that the district court erred in finding that these exigent circumstances were not deliberately created by the government. After reviewing the record and findings of the district court, we conclude there is no error, and accordingly affirm. Thompson was convicted of conspiracy to possess with intent to distribute cocaine hydrochloride and of possession with intent to distribute the same in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846 and 18 U.S.C. § 2. He was sentenced to serve five years on the conspiracy count and five years on the possession with intent to distribute count, to run concurrently, and he received a three-year special parole term on the second count. Thompson appealed his convictions, contending that the district court should have granted his motion to suppress evidence obtained by government agents who entered his home without a warrant. We vacated his convictions and sentences in United States v. Thompson, 700 F.2d 944, 952 (5th Cir.1983), and remanded the case to the district court for findings of fact and conclusions of law on the following issues: (1) whether there were exigent circumstances which would normally have justified the agents’ warrantless entry into Thompson’s home; and (2) whether those exigent circumstances cannot justify the entry in this case because they were deliberately created by the government. If the district court found that the agents’ entry into Thompson’s home was unlawful, then it was to suppress the evidence. If it found that the seizure of the evidence was lawful, then the original convictions and sentences were to be reinstated. On remand, the district court found that exigent circumstances justified a warrantless entry into Thompson’s house, and that these circumstances were not deliberately created by the government. Accordingly, Thompson’s convictions and sentences were reinstated. Thompson now challenges the district court’s finding that the agents’ entry into his home was lawful. The facts leading to Thompson’s convictions, and" }, { "docid": "23153963", "title": "", "text": "was constitutional “on at least two grounds:” (1) the officer had an objectively reasonable good-faith belief that he obtained valid consent to search the room; and (2) exigent circumstances. For Defendant’s post-arrest statements to Agent Herman, the magistrate judge concluded that Defendant made a voluntary, knowing, and intelligent waiver of his rights. The district court adopted the magistrate judge’s recommendations. A jury convicted Defendant on all counts. On appeal, Defendant argues that the district court erred in denying his motion to suppress and that the government presented insufficient evidence to support his convictions. II. Standard of Review In reviewing a district court’s denial of a motion to suppress, we review the findings of fact for clear error and the application of law to those facts de novo. United States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir.2007). When considering a ruling on a motion to suppress, we construe all facts in the light most favorable to the party prevailing in the district court-here, the government. Id. at 1235-36 (citing United States v. Hromada, 49 F.3d 685, 688 (11th Cir.1995)). We review challenges to the sufficiency of the evidence de novo. United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir.2005). We must determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. Ward, 197 F.3d 1076, 1079 (11th Cir.1999). In doing so, we view the evidence in the light most favorable to the government and all reasonable inferences and credibility choices are made in the government’s favor. United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir.2005). III. Discussion A. Motion to Suppress 1. Warrantless Search The Fourth Amendment protects a person’s reasonable expectation of privacy in his motel room. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964). And the general rule is that a hotel employee does not have authority to consent to a warrantless search of a room rented to a guest. Id. Nonetheless, a warrantless entry is valid when it is based upon the consent of a third party whom the police, at" }, { "docid": "1563264", "title": "", "text": "not necessarily in the same position as officers faced with the potential danger envisioned by the Supreme Court when it authorized the protective sweep in Buie. See Buie, 494 U.S. at 333, 110 S.Ct. 1093 (discussing the dangers of an in-home arrest). Accordingly, this Court declines to take this opportunity to expand Buie’s reach. Id. at *2. The district court therefore granted Moran’s motion to suppress and this appeal followed. DISCUSSION “When examining a ruling on a motion to suppress, ‘we review the district court’s factual findings for clear error and its conclusions of law de novo,’ viewing the evidence ‘in the light most favorable to the prevailing party.’ ” United States v. Awadallah, 349 F.3d 42, 71 (2d Cir.2003) (quoting United States v. Harrell, 268 F.3d 141, 145 (2d Cir.2001)). A determination of reasonable suspicion, such as that made by the district court with respect to the agents’ belief that someone was in Moran’s bathroom, “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). The government has conceded that it had neither a search warrant nor an arrest warrant, that it lacked probable cause to either search or arrest Moran, that there were no exigent circumstances, and that Moran expressly and unequivocally revoked his consent to the agents’ search of the bathroom. The only basis the government asserts for its claim that the bathroom search was legal is that it was permissible pursuant to Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The district court granted Moran’s motion to suppress on the ground that a protective sweep under Buie is constitutional only when conducted in the course of arresting someone on the premises. As the district court and magistrate recog nized, whether Buie established such a bright-line rule is an issue upon which circuit courts have differed. Compare United States v. Reid, 226 F.3d 1020, 1027 (9th Cir.2000) (interpreting Buie to require an arrest) with United States v. Gould, 364 F.3d 578, 584 (5th Cir.2004) (en banc) (holding that an arrest" }, { "docid": "23129822", "title": "", "text": "denying a motion to suppress statements he allegedly made to agents, and (2) allowing the government to introduce physical evidence obtained during the search of his home, the Clear Cove residence, which was conducted after the agents had entered the residence, conducted a protective sweep, and obtained Manuel’s purportedly coerced consent to search the premises further. 1. Motion to Suppress Evidence of Manuel’s Statements Manuel was arrested in his home on various narcoties-related charges. Over his objection, two arresting agents testified at trial about statements Manuel purportedly made after his arrest. Manual had moved to suppress evidence of those statements, claiming that (1) they were the fruit of a warrant-less entry and arrest inside his residence, and (2) any statements that he may have made were coerced, regardless of whether the entry and his arrest were lawful. We review a district court’s denial of a motion to suppress by viewing the facts in the light most favorable to the prevailing party (here, the government), accepting the district court’s factual findings unless clearly erroneous, and considering all questions of law de novo. a. Warrantless Entry of Clear Cove Residence Manuel argues that evidence of statements he purportedly made to FBI agents after they had entered the Clear Cove residence to conduct a protective sweep should have been suppressed as fruit from the poisonous tree, because, according to Manuel, the statements were obtained as a direct result of that allegedly unconstitutional entry. He does not argue that the FBI agents lacked probable cause to enter his Clear Cove residence; rather, he complains that his Fourth Amendment guarantee to be free from unreasonable searches and seizures was violated because the agents did not have a warrant to enter his home. The government relies on the “exigent circumstances” exception to the warrant requirement to justify its entry into the Clear Cove residence. i. Exigent Circumstances Although presumptively un reasonable, a warrantless entry will survive constitutional scrutiny if, inter alia, “exigent cir cumstances exist to justify the intrusion.” The burden is on the government to prove the existence of the exigency. Exigent circumstances “include those" }, { "docid": "14374265", "title": "", "text": "table for him to have seen and, thus, exigent circumstances were not present to justify the warrantless entry into their home. The Government counters by pointing to the officers’ affidavits, which it contends support a finding that, because their window blinds were open, the Taylors had no reasonable expectation of privacy in objects in plain view in the dining room, see United States v. Bellina, 665 F.2d 1335, 1341-42 (4th Cir.1981) (no legitimate expectation of privacy within meaning of Fourth Amendment when an object is exposed to plain view, even in a person’s own home). The Government also urges the finding that the officer’s observation of white cocaine-like powder provided exigent circumstances justifying the warrantless entry into the Taylors’ home, see United States v. Turner, 650 F.2d 526, 528 (4th Cir.1981) (war-rantless entry into residence justified when officers have probable cause to believe contraband is present that may be destroyed- or removed.before a warrant can be obtained). When material facts that affect the resolution of a motion to suppress evidence seized during a warrantless search are in conflict, the appropriate way to resolve the conflict is by holding an evidentiary hearing after which the district court will be in a position to make findings. See United States v. Berkowitz, 927 F.2d 1376, 1385 (7th Cir.1991). Here, the Government’s affidavits state that one of the officers observed through a window white cocaine-like powder on the Taylors’ dining room table in plain view. The Taylors’ affidavits directly contradict this critical assertion. In its order the district court apparently made a credibility determination and resolved conflicting positions in favor of the Government. It found that the actions of the officers were proper and that probable cause and exigent circumstances existed to justify the warrantless entry into the Taylors’ residence. Central to this conclusion was the finding of the district court that white cocaine-like powder was observed on the dining room table, a position directly in conflict with the one taken by the Taylors. Because the district court did not conduct an evidentiary hearing to resolve the material factual disputes,’ we vacate and remand" }, { "docid": "9889945", "title": "", "text": "to a police vehicle and that the door showed no marks from a sledgehammer. After hearing all of the evidence, the district court ruled that (1) the agents lawfully broke the padlock on the driveway gate due to exigent circumstances, namely the organization’s known violence, (2) agents announced their presence as soon as their safety was less compromised, and (3) Merced-Morales opened his door with no breaking or entering by police. While this Court reviews factual determinations supporting the' denial of suppression motions for clear error, see United States v. Twomey, 884 F.2d 46, 51-52 (1st Cir.1989), we review de novo whether exigent circumstances justify entry without notice, cf. United States v. Tibolt, 72 F.3d .965, 969 (1st Cir.1995) (“[Wjhether a particular set of circumstances gave rise to ... ‘exigent circumstances’ is reviewed de novo and findings of fact are reviewed for clear error.”); United States v. Gooch, 6 F.3d 673, 679 (9th Cir.1993) (‘We review de novo whether exigent circumstances justify a warrant-less arrest or seizure.”); United States v. Echegoyen, 799 F.2d 1271, 1277-78 (9th Cir.1986) (“The ultimate issue of whether exigent circumstances justify a warrantless entry and/or search is resolved under the de novo standard.”). “Where, as here, there are no explicit factual findings, the record below is assessed in the light most favorable to the trial court ruling.” Tibolt, 72 F.3d at 969. First, we reject Merced-Mor-ales’ argument that the search of his residence and automobile was unlawful in light of the agents’ failure to knock and announce. The Supreme Court has held: [F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); see also Steagald v. United States, 451 U.S. 204, 214 n. 7, 221, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (“Because an arrest warrant authorizes the police to deprive a person of his liberty, it necessarily also authorizes a limited invasion of" }, { "docid": "22948712", "title": "", "text": "that occurred. After a two-day hearing, the district court denied VonWillie’s motion to suppress the evidence seized from his house. The court also denied various other pretrial motions, jury instruction requests, and VonWillie’s Rule 29 motion for acquittal. The jury convicted VonWillie on both counts, and he was sentenced on May 23, 1994 to consecutive terms of imprisonment. Those prison terms were also imposed to run consecutively to a state court sentence for a drug offense that arose from the same search of VonWillie’s home. VonWillie timely appeals both his conviction and his sentence. DISCUSSION I. “KNOCK AND ANNOUNCE” STATUTE Prior to trial, VonWillie moved to suppress the evidence seized from his home, arguing that the officers executing the search warrant violated the federal “knock and announce” statute, 18 U.S.C. § 3109. Section 3109 requires “police officers [to] knock, announce and be refused entry before they break into a residence. Exigent circumstances excuse noncompliance.” United States v. Turner, 926 F.2d 883, 886 (9th Cir.), cert. denied, 502 U.S. 830, 112 S.Ct. 103, 116 L.Ed.2d 73 (1991). Following a two-day evidentiary hearing, the district court denied the motion, concluding that the requirements of section 3109 were satisfied because the officers had knocked and announced their presence and purpose before entering. The district court also concluded that exigent circumstances existed that excused noncompliance with section 3109. We affirm on the latter ground. This court reviews de novo the district court’s denial of the suppression motion and its conclusion that exigent circumstances were present. United States v. Becker, 23 F.3d 1537, 1539 (9th Cir.1994). The district court’s underlying factual findings are reviewed for clear error. Id. The determinative issue here is whether the entry at the front door was permissible. The relevant sequence of events is as follows: There was no knock at the front door — VonWillie opened the door before Anderson could knock and the door was not yet closed when Whitlow reached it; Whitlow did announce his identity and purpose as he reached through the door and grabbed VonWillie; Whitlow and another officer subsequently entered the house through the front" }, { "docid": "4374683", "title": "", "text": "back door without an arrest warrant. The agents arrested Gomez inside the house and Vasquez on the front lawn. Vasquez, Guajardo and Gomez were subsequently indicted and convicted of conspiracy to distribute, and of aiding and abetting the possession of more than 100 kilograms of marijuana with intent to distribute. They timely appeal, alleging that exigent circumstances did not justify a war-rantless entry into Gomez’s residence and that the evidence seized should have been suppressed. In addition, Vasquez raises three separate points of appeal, claiming that: (i) the evidence is insufficient to support his conviction under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846; (ii) the evidence is insufficient to support his conviction under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2; and (iii) the district court erred in admitting statements made by Vasquez’s co-conspirators under Fed.R.Evid. 801(d)(2)(E). We review each contention. II The defendants moved to suppress evidence seized from the house, alleging that the agents’ warrantless entry into the Auburn Street house violated their Fourth Amendment rights. The district court denied the motion, stating that exigent circumstances excused the agents’ failure to obtain a warrant. Defendants assert error in this holding by the district court. A warrantless entry into a home to effectuate a search or seizure presumptively unreasonable. See Payton v. New York, 445 U.S. 573, 586-87, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980) (citation omitted). However, the presence of exigent circumstances may justify a warrantless entry into a home for the purposes of arrest or search. See Minnesota v. Olson, 495 U.S. 91, 100-01, 110 S.Ct. 1684, 1690, 109 L.Ed.2d 85 (1990). A district court’s determination as to whether exigent circumstances existed is fact-specific, and will not be reversed unless clearly erroneous. See United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1071, 112 L.Ed.2d 1177 (1991) (citations omitted); see also United States v. Webster, 750 F.2d 307, 326 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340-41, 85 L.Ed.2d 855 (1985) (applying clearly erroneous standard to district court’s determination that exigent circumstances existed); United" }, { "docid": "7973155", "title": "", "text": "and seizure of Aguirre’s cell phone was proper both as a search incident to her arrest and pursuant to a valid warrant. The court also found the evidence in any event was admissible under the good-faith exception to the exclusionary rule. Reserving her right to appeal, Aguirre pleaded guilty to using a communications facility — her cell phone — to facilitate a drug-trafficking crime in violation of 21 U.S.C. § 843(b). She was sentenced to twenty-four months imprisonment, one year supervised release, and a special assessment of $100. This appeal followed. II. Our review of a district court’s denial of a motion to suppress is limited. We may affirm on any basis established by the record, considering the evidence presented at the suppression hearing “in the light most favorable to the prevailing party.” A determination of probable cause is a legal conclusion that we review de novo, while the existence of exigent circumstances is a factual finding we review for clear error. Under this “highly deferential” standard, we must uphold the district court’s ruling so long as it is supported by “any reasonable view of the evidence.” III. Aguirre first argues that the law enforcement officers’ warrantless entry into the mobile home violated the Fourth Amendment, an illegality tainting the search and seizure of her cell phone. The district court concluded that the officers’ entry was justified under the exigent circumstances doctrine and implicitly determined that there was probable cause for the entry. Under the Fourth Amendment, a warrantless search of a person’s home is presumptively unreasonable, and it is the government’s burden to bring the search within an exception to the warrant requirement. Exigent circumstances is such an exception. It is available only on a showing by the government that the officers’ entry into the home was supported by probable cause and justified by an exigent circumstance. “[N]o amount of probable cause can justify a warrantless search or seizure absent [such] exigent circumstances.” In other words, even if the officers had probable cause to search the mobile home, they had to have exigent circumstances to enter without a warrant." }, { "docid": "460632", "title": "", "text": "The police eventually entered the residence, found, and seized the marihuana. Vega, Izquierdo, and Companion were indicted in one count of conspiracy to possess with intent to distribute in excess of 50 kilograms of marihuana, and three counts of possession with intent to distribute less than 50 kilograms of marihuana. Vega and Izquierdo filed motions to suppress the evidence seized at the time of their arrest and their subsequent statements to the police. After a hearing the district court denied both motions. No reasons were assigned. Companion entered a guilty plea. A jury found Vega and Izquierdo guilty on all counts. The district court sentenced Vega to 27 months imprisonment to be followed by three years supervised release; Izquierdo was sentenced to 210 months imprisonment and three years supervised release. Vega and Izquierdo timely appealed. ANALYSIS Vega and Izquierdo contend that the district court erred in denying their motion to suppress evidence discovered during the search of the Elena Street residence. The government maintains that the actions of the Brownsville police did not violate the fourth amendment rights of either Izquier-do or Vega. It first contends that neither defendant’s interest in the home was sufficient to give rise to fourth amendment protections. It then asserts that the search was lawful despite the absence of a warrant because exigent circumstances necessitated an immediate entry. Finally, the government contends that Vega consented to the search of the residence. In reviewing the denial of a motion to suppress evidence under the fourth amendment, we “review the district court’s factual findings for clear error and its conclusions regarding the constitutionality of a warrantless search de novo. Further, the voluntariness of consent to a warrantless search is a finding of fact reviewed for clear error.” The finding of exigent circumstances is one of fact. The clear error standard in this instance must be relaxed because the record contains no findings of fact. As there are virtually no contested facts, however, our review herein is essentially de novo. The government insists that neither Izquierdo nor Vega has “standing” to contest the search of the Elena street" }, { "docid": "2888371", "title": "", "text": "to 63 months imprisonment on Count VI and one year imprisonment on Count I, to run concurrently. Issues On appeal, Scroger contends that the district court erred (1) in denying his motion to suppress the evidence obtained during the warrantless entry of his residence on July 19, 1995; (2) in instructing the jury that if it found beyond a reasonable doubt that a conspiracy existed and that Seroger was a mem ber of the conspiracy, then it could impute the acts and statements of co-conspirator Taylor to Scroger, when there was insufficient evidence presented to support a conspiracy conviction; and (3) in giving an aiding and abetting instruction applicable to all counts over Scroger's objection that he was unfairly surprised by the aiding and abetting theory. Discussion I. Warrantless Entry Scroger contends that the district court erred in denying his motion to suppress the evidence obtained in the July 19, 1995, search of his residence. Scroger asserts that the warrantless entry of his residence was not justified by exigent circumstances and that the police had sufficient probable cause to obtain a search warrant at least two weeks prior to the unlawful entry of his house based on a confidential informant's statements that methamphetamine was being manufactured in the house which were corroborated by Officer Barajas on June 30, 1995, when he smelled an odor consistent with methamphetamine manufacturing outside the residence. Scroger maintains that the circumstances defining exigency in this case were clearly subject to police manipulation and abuse and do not justify the warrantless entry of his residence. We review the district court's factual findings under the clearly erroneous standard and view the evidence in the light most favorable to the government. United States v. Wicks, 995 F.2d 964, 969 (10th Cir.), cert. denied, 510 U.S. 982, 114 S.Ct. 482, 126 L.Ed.2d 433 (1993); United States v. Carr, 939 F.2d 1442, 1443 (10th Cir.1991). However, the ultimate determination concerning reasonableness under the Fourth Amendment is a question of law which we review de novo. Wicks, 995 F.2d at 969. \"It is a `basic principle of Fourth Amendment law' that" } ]

[ { "docid": "22083856", "title": "", "text": "of the evidence. 751 F.2d at 120. Judge McCurn extracted from these decisions two approaches: (1) only a prima facie showing is needed to defeat a jurisdiction testing motion before discovery; (2) jurisdiction must be established by a preponderance of the evidence at a hearing conducted after discovery. The District Judge felt it was unclear which approach applied where a jurisdiction testing motion (either under Rule 12(b)(2) or Rule 56) is presented after discovery but before an evidentiary hearing. He selected the “prima facie” approach because Hoffritz is the more recent decision and because other district courts in the Circuit appear to be requiring only a prima facie showing in these circumstances. See, e.g., Lana Mora, Inc. v. S.S. Woermann Ulanga, 672 F.Supp. 125, 126-27 (S.D.N.Y.1987); Forgash v. Paley, 659 F.Supp. 728, 729-30 (S.D.N.Y.1987). We agree with Judge McCurn that the nature of the plaintiffs obligation varies depending on the procedural posture of the litigation. Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith, see Fed.R.Civ.P. 11, legally sufficient allegations of jurisdiction. At that preliminary stage, the plaintiffs prima facie showing may be established solely by allegations. After discovery, the plaintiffs prima facie showing, necessary to defeat a jurisdiction testing motion, must include an averment of facts that, if credited by the trier, would suffice to establish jurisdiction over the defendant. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d at 57; Birmingham Fire Insurance Co. v. KOA Fire & Marine Insurance Co., 572 F.Supp. 962, 964 (S.D.N.Y.1983). At that point, the prima facie showing must be factually supported. Where the jurisdictional issue is in dispute, the plaintiff’s averment of jurisdictional facts will normally be met in one of three ways: (1) by a Rule 12(b)(2) motion, which assumes the truth of the plaintiff’s factual allegations for purposes of the motion and challenges their sufficiency, (2) by a Rule 56 motion, which asserts that there are undisputed facts demonstrating the absence of jurisdiction, or (3) by a request for an adjudication of disputed jurisdictional facts, either at a hearing" } ]

[ { "docid": "10710277", "title": "", "text": "for lack of personal jurisdiction. These defendants include three of the Nordic banks; DnC, CHB, and KOP, and their respective officer defendants; Naper, Ostergaard, and Kaila. Although SHB does not challenge the Court’s in personam jurisdiction, its president, Jan Ekman, does. Stewart Smith and John Sclater, both English citizens and NBL’s associate director and managing director, respectively, also challenge the Court’s jurisdiction. The burden of establishing jurisdiction over a defendant, by a preponderance of the evidence, is upon the plaintiff. Until an evidentiary hearing is held, however, the plaintiff need make only a prima facie showing that jurisdiction exists, and this remains true notwithstanding a controverting presentation by the moving party. In the absence of an evidentiary hearing on the jurisdictional allegations, or a trial on the merits, all pleadings and affidavits are construed in the light most favorable to the plaintiff, and where doubts exist, they are resolved in the plaintiff’s favor. Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985) (citations omitted). In deciding these pretrial motions to dismiss for lack of personal jurisdiction, we have considerable procedural leeway. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). In exercising this flexibility, we permitted substantial discovery on the jurisdictional issues raised by these motions. The affected parties have proferred numerous affidavits, documents, and depositions to support their positions. However, we have foregone an evidentiary hearing. Since the complaint fails to state a claim under the Sherman Act and under the BHCA against any of the moving defendants, RICO is the only federal statute that might authorize the Court to exercise personal jurisdiction over the movants. In addition, the law of New York — the state in which this Court sits — supplies another possible basis for the assertion of personal jurisdiction over the moving defendants. Arrowsmith v. United Press International, 320 F.2d 219 (2d Cir.1963). None of these bases, however, avails the plaintiffs. The actions against the moving defendants must be dismissed. A. Jurisdiction Under RICO Section 1965 of RICO, 18 U.S.C. § 1965(b) (1982), authorizes nationwide service of process in" }, { "docid": "22333499", "title": "", "text": "York longarm statute, CPLR § 302(a)(1). We turn now to these contentions. Discussion There are several oft-encountered benchmarks in the law of personal jurisdiction. First, personal jurisdiction over a defendant in a diversity action is determined by reference to the law of the jurisdiction in which the court sits, United States v. First National City Bank, 379 U.S. 378, 381-82, 85 S.Ct. 528, 530-31, 13 L.Ed.2d 365 (1965); Arrowsmith v. United Press International, 320 F.2d 219, 223 (2d Cir.1963) (en banc). The burden of establishing jurisdiction over a defendant, by a preponderance of the evidence, is upon the plaintiff. Marine Midland Bank, N.A., 664 F.2d at 899. Until an evidentiary hearing is held, however, the plaintiff need make only a prima facie showing that jurisdiction exists, Beacon Enterprises, Inc., 715 F.2d at 768, and this remains true notwithstanding a controverting presentation by the moving party. Marine Midland Bank, N.A., 664 F.2d at 904; see American Eutectic, 439 F.2d at 430. In the absence of an evidentiary hearing on the jurisdictional allegations, or a trial on the merits, all pleadings and affidavits are construed in the light most favorable to plaintiff, and where doubts exist, they are resolved in the plaintiff’s favor. E.g., Beacon Enterprises, Inc., 715 F.2d at 768; Marine Midland Bank, N.A., 664 F.2d at 904; Cranston Print Works Co. v. Brockmann International A.G., 521 F.Supp. 609, 613 (S.D.N.Y.1981); Freeman v. Gordon & Breach, Science Publishers, Inc., 398 F.Supp. 519, 520 (S.D.N.Y.1975). Bearing these points in mind, we address first plaintiffs’ contention that CPLR section 301 provides jurisdiction over Ayers. Section 301 provides that “[a] court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore.” In the case of a foreign corporation, section 301 keeps alive the case law existing prior to its enactment, which provided that a corporation is “doing business” and is therefore “present” in New York and subject to personal jurisdiction with respect to any cause of action, related or unrelated to the New York contacts, if it does business in New York “not occasionally or casually, but with a" }, { "docid": "19145080", "title": "", "text": "district court sits; therefore the law of New York is applicable to this case. See United States v. First Nat’l City Bank, 379 U.S. 378, 381-82, 85 S.Ct. 528, 13 L.Ed.2d 365 (1965); Arrowsmith v. United Press Int’l, 320 F.2d 219, 222-23 (2d Cir.1963) (en banc). Furthermore, the exercise of jurisdiction must comport with federal constitutional principles of due process. See Mayes v. Leipziger, 674 F.2d 178, 183 (2d Cir.1982). Rule 12(d) of the F.R. Civ. P. grants the court broad discretion to hear and decide a motion to dismiss for lack of personal jurisdiction before trial or to defer the matter until trial. See CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364 (2d Cir.1986). The court may decide the motion solely upon pleadings and affidavits or by an evidentiary proceeding. See id.; Falik v. Smith, 884 F.Supp. 862, 864 (S.D.N.Y.1995) (Carter, J.). Where the court chooses not to conduct a full-blown evidentiary hearing before trial, plaintiff need only make a prima facie showing of personal jurisdiction over the defendant. See Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). However, it remains incumbent upon the plaintiff to ultimately establish that jurisdiction is proper by a preponderance of the evidence at trial. See id.; Mayes, 674 F.2d at 182 n. 3. In the instant case, no evidentiary hearing has been held and thus the court need only determine whether Palace has made a prima facie showing of jurisdiction, construing all pleadings and affidavits in the light most favorable to the plaintiff. See Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985). A. Jurisdiction under CPLR 302(a)(1) Plaintiff first contends that the court has jurisdiction pursuant to Section 302(a)(1) of the New York Civil Practice Law (“CPLR”). CPLR § 302(a)(1), which is part of New York’s long arm statute, allows personal jurisdiction over any non-domiciliary who in person or through an agent “transacts any business within the state or contracts anywhere to supply goods or services in the state” when the cause of action is i’elated to the transaction or the contract. See" }, { "docid": "18904042", "title": "", "text": "950-51 (Bkrtcy.W.D.Mo.1988) (post-petition contract over promise to pay debtor's attorney fees between successor and predecessor attorney for Chapter 12 debtor was core). AM Cable has also moved under Rule 12(b)(2). A Rule 12(b)(2) dismissal motion for lack of personal jurisdiction places the ultimate burden on the party asserting jurisdiction. The Second Circuit requires that until we hold an evidentiary hearing on a Rule 12(b)(2) motion, the plaintiff “need make only a prima facie showing by its pleadings and affidavits that [personal] jurisdiction [over the defendant] exists.” Cutco Industries v. Naughton, 806 F.2d 361, 365 (2d Cir.1986) (brackets added); Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). If the motion is on written submission, then all of the allegations of jurisdictional facts are presumed to be true. Factual disputes and doubts are to be resolved in favor of the party asserting personal jurisdiction. Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985); 2A Moore’s Federal Practice, paragraph 12.07[2.-2], p. 12-55, at 12-56 (2d Ed.1989). If oral evidence is taken in addition to the written submission, the party asserting jurisdiction must establish personal jurisdiction by a preponderance of the evidence. If the court chooses not to conduct a full-blown evidentiary hearing on the motion [to dismiss for lack of personal jurisdiction], the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials. Eventually, of course, the plaintiff must establish jurisdiction by a preponderance of the evidence, either at a pretrial evidentiary hearing or at trial. But until such a hearing is held, a prima facie showing suffices, notwithstanding any controverting presentation by the moving party, to defeat the motion. Marine Midland Bank, N.A. v. Miller, supra, 664 F.2d at 904 (emphasis and brackets supplied). Accord, Cutco Industries v. Naughton, supra, 806 F.2d at 365. In the instant proceeding, the parties waived a full-blown evidentiary pre-trial hearing on the issue of personal jurisdiction and, instead, chose to rely on their written submissions, pleadings, and affidavits. Thus, we test the Trustee’s claim of personal jurisdiction over AM Cable by" }, { "docid": "15778751", "title": "", "text": "contends that it was not a participant in the negotiations, but merely an observer. According to Plaintiffs, in early February, 1984, PFS breached its contract with Plaintiffs by announcing for the first time that Plaintiffs would be only sales representatives for PFS rather than partners in a joint venture, and that Plaintiffs would receive a 10% commission on the sale of any log cabins rather than the nearly equal division of profits previously agreed upon. Later that month, after this alleged breach, Plaintiffs notified Mr. Sundstrom that Scandia wished to continue with its prior oral agreement with him, even in the absence of a joint venture agreement with PFS. Plaintiffs claim that at this time PFS and Moberg conspired to cause Sundstrom to breach his contract with Scandia by intimidating him and threatening to terminate all their business dealings with him. Plaintiffs allege that Defendants did this so that PFS would obtain the exclusive importing and distribution rights in the United States. DISCUSSION Where a motion brought under Rule 12(b)(2) is decided on pleadings and affidavits, without an evidentiary hearing, the plaintiff need only make a prima facie showing that jurisdiction exists. CutCo Industries v. Naughton, 806 F.2d 361, 364-65 (2d Cir.1986). All pleadings and affidavits are construed in the light most favorable to the plaintiff, and all doubts are resolved in its favor. Id.; Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985). A plaintiff who succeeds in making this prima facie showing still bears the burden of establishing in person-am jurisdiction at trial by a fair preponderance of the evidence. Morse Typewriter Co. Inc. v. Samanda Office Communications Ltd., 629 F.Supp. 1150, 1151-52 (S.D.N.Y.1986) (citing Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981) and Teachers Ins. & Annuity Ass’n of America v. Butler, 592 F.Supp. 1097, 1099 (S.D.N.Y.1984)). In ruling on a motion to dismiss for lack of personal jurisdiction, a court must consider whether there is a statutory basis for jurisdiction and whether the exercise of personal jurisdiction under state law comports with due process under the fourteenth amendment." }, { "docid": "19257237", "title": "", "text": "N.Y.2d 426, 328 N.Y.S.2d 653, 278 N.E.2d 895, 896 (1972). Jurisdiction over a foreign defendant may also lie in New York under New York’s long-arm statute, N.Y. CPLR § 302 based upon the tortious act of a non-domiciliary who does not transact business in New York. Bensusan Restaurant Corporation v. King, 126 F.3d 25, 27 (2d Cir.1997). A plaintiff may defeat a motion to dismiss brought prior to discovery by making a prima facie showing of jurisdiction either through \"legally sufficient allegations of jurisdiction\" in the pleadings, Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990), or through its own affidavits and supporting materials. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). In deciding a motion to dismiss for lack of personal jurisdiction, the court has discretion to proceed either upon written submissions or through a full evidentiary hearing on the merits. Marine Midland, supra. Absent discovery or a full evidentiary hearing, the pleadings and affidavits are construed, and any ambiguity resolved, in favor of the plaintiff. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985); Marine Midland, supra, at 904. Such a prima facie showing does not, however, preclude the ultimate requirement that the plaintiff establish personal jurisdiction by a preponderance of the evidence either at a pretrial evidentiary hearing or at trial. Id. Nevertheless, until an evidentiary hearing is held, a prima facie showing of personal jurisdiction is sufficient to withstand a motion to dismiss. Id. This principle \"remains true notwithstanding a controverting presentation by the moving party.\" Hoffritz for Cutlery, supra, at 57. In support of the motion to dismiss, Superior’s President, Eric Willms, submitted an affidavit in which he avers that Superior has no office, employees, bank accounts or any other assets in New York, nor does it have any authorized agents or manufacturers’ representatives in New York and does not do business in New York either directly or indirectly through distributors who distribute products to customers in New York or through its" }, { "docid": "6339625", "title": "", "text": "absence of an evidentiary hearing, plaintiff need only make a prima facie showing of personal jurisdiction through affidavits and other supporting materials, notwithstanding any controverting presentation by the defendant. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981); Catsimatidis v. Innovative Travel Group, Inc., 650 F.Supp. 748, 750 (S.D.N.Y.1986); Bialek v. Racal-Milgo, Inc., 545 F.Supp. 25, 32-33 (S.D.N.Y.1982). The supporting materials are construed in the light most favorable to the plaintiff, and all doubts are to be resolved in plaintiff’s favor. Hoffritz for Cutlery, 763 F.2d at 57 (2d Cir.1985). Plaintiff’s contention that Douglas has consented to personal jurisdiction in New York is premised on the theory that Douglas is personally liable for the corporate acts of Caribbean. Incorporation generally shields shareholders, officers, managers and agents from liability arising out of corporate activities. Armada Supply, Inc. v. S/T Agios Nikolas, 613 F.Supp. 1459, 1471 (S.D.N.Y.1985). When, however, individuals use the corporation to perpetrate a fraud, or so dominate and disregard the corporate form that the corporation primarily transacts their personal business, the Court may pierce the corporate veil and impose liability directly upon the individuals. Kirno Hill Corp. v. Holt, 618 F.2d 982, 985 (2d Cir.1980); Armada Supply, Inc., 613 F.Supp. at 1471-72. Plaintiff has submitted enough evidence to make a prima facie case for piercing the corporate veil and holding Douglas bound by Caribbean's consent to New York jurisdiction. According to the deposition testimony of Daniel Montgomery, a participant in the early stages of the negotiations for a crude oil contract with Nigeria, Douglas treated the mandate to negotiate a crude oil contract for St. Kitts as a personal business opportunity. Prior to issuing the mandate to Caribbean, St. Kitts entered into a contract with Metropolitan Oil & Chemical of P.R. Inc. (“Metoil”), pursuant to which Metoil was to obtain a crude oil contract on St. Kitts’ behalf (Montgomery Dep’n at 124; Plaintiff’s Exh. 50). The contract provided Metoil with substantially the same authority as that granted in the Caribbean mandate (Plaintiff’s Exh. 50). Douglas, who held himself out as vice-president and treasurer of Metoil (Plaintiff’s" }, { "docid": "8934886", "title": "", "text": "reservation, Stratton must be contacted directly. Id. Discussion It is well settled in this Circuit that plaintiff has the burden of proving the court’s jurisdiction by a preponderance of the evidence. Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir.1983) (citations omitted). District courts have “considerable procedural leeway,” however, in deciding a pretrial motion to dismiss for lack of personal jurisdiction. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). The motion may be decided solely based upon the affidavits; or additional discovery may be had on the jurisdiction issues; or the court may hold an evidentiary hearing on the matter. Id. (citations omitted). To survive a motion to dismiss for lack of personal jurisdiction, however, until a pretrial evidentiary hearing is held or until the trial, the plaintiff need only make a prima facie showing that jurisdiction exists. Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985) (citation omitted); Marine Midland, 664 F.2d at 904. In Hoffritz, the Court explained: In the absence of an evidentiary hearing on the jurisdictional allegations, or a trial on the merits, all pleadings and affidavits are construed in the light most favorable to plaintiff, and where doubts exist, they are resolved in the plaintiff’s favor. Id. (citations omitted). In addition, at least one court has recognized that: [I]f a plaintiff’s proof [of jurisdictional facts] is limited to written materials, it is necessary only for these materials to demonstrate facts which support a finding of jurisdiction in order to avoid a motion to dismiss. Birmingham Fire Ins. Co. v. KOA Fire & Marine Ins., 572 F.Supp. 962, 964 (S.D.N.Y.1983) (citation omitted) (emphasis in original). It is equally well recognized that in a diversity action, such as this one, personal jurisdiction over the defendant is determined by the law of the state in which the federal court sits. United States v. First National City Bank, 379 U.S. 378, 381-82, 85 S.Ct. 528, 530-31, 13 L.Ed.2d 365 (1965); Arrowsmith v. United Press International, 320 F.2d 219, 223 (2d Cir.1963) (en banc). In New York, the relevant jurisdictional" }, { "docid": "11337841", "title": "", "text": "on July 23, 1976, TST became the sole ordinary shareholder of BATCo. See id. at ¶ 5. TST then changed its name to BAT Industries Limited, and later to BAT Industries p.l.e., the present defendant. See id. B & W, BATCo and BAT Industries p.l.e. have been and remain separate corporate entities. See id. at ¶ 6; Reply Affidavit of Peter L. Clarke (“Clarke Reply Aff.”), dated May 25,1998, at ¶ 9. III. Discussion Upon motion, the Court is obligated to dismiss actions against defendants over whom it has no in personam jurisdiction. See Fed.R.Civ.P 12(b)(2). A plaintiff bears the ultimate burden of showing by a preponderance of the evidence that jurisdiction over a defendant is proper. See Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). However, when a defendant brings a Rule 12(b)(2) motion prior to discovery, a plaintiff is only required to make out a prima facie case of jurisdiction through the pleadings and affidavits. See Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990); CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986); Kinetic Instruments, Inc. v. Lares, 802 F.Supp. 976, 981 (S.D.N.Y.1992) (when jurisdiction challenged prior to discovery, plaintiff may defeat the motion by good faith pleading of legally sufficient allegations). Such pleadings and affidavits are to be construed in the light most favorable to plaintiffs with all doubts resolved in plaintiffs’ favor. See Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985). BAT Industries does not reside nor was it served in New York. However, a federal court can assert jurisdiction over a nonresident defendant under the long-arm statute of the state in which it sits, provided that doing so comports with due process. See United States v. Montreal Trust Co., 358 F.2d 239, 240 (2d Cir.1966); see also Hoffritz, 763 F.2d at 57 (“Personal jurisdiction over a defendant in a diversity action is determined by reference to the law of the jurisdiction in which the court sits.”); Pilates, Inc. v. Pilates Institute, Inc., 891 F.Supp. 175, 179 (S.D.N.Y.1995) (personal jurisdiction in federal" }, { "docid": "8934885", "title": "", "text": "equipment in New York with any independent proof. Finally, based upon the affidavit of the president of Travel Smith, an Albany travel agency, plaintiff states that Stratton Mountain Inn and Stratton Mountain Villas, which plaintiff “believes” are owned by defendant, are listed in the “Hotel and Travel Index.” Smith Affidavit (11/6/87) at par. 4. That Index indicates that a travel agency which places a reservation at either of those facilities will receive a 10% commission. Id. at par. 4. Apparently, the Index also contains a display advertisement by defendant “promoting the availability of commissions for any reservations placed.” Id. at par. 5. Mr. Crawford, Strattons’s Chief Financial Officer, explained that, first of all, Stratton Corporation does not own either the Stratton Mountain Inn or the Stratton Mountain Villas. Crawford Affidavit at par. 7 (emphasis added). Mr. Crawford further explained that although Stratton does pay a 10% commission to travel agents who place reservations through Stratton, “none of those travel agents have the authority to offer confirmed, binding reservations.” Id. at par. 8. To confirm a reservation, Stratton must be contacted directly. Id. Discussion It is well settled in this Circuit that plaintiff has the burden of proving the court’s jurisdiction by a preponderance of the evidence. Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir.1983) (citations omitted). District courts have “considerable procedural leeway,” however, in deciding a pretrial motion to dismiss for lack of personal jurisdiction. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). The motion may be decided solely based upon the affidavits; or additional discovery may be had on the jurisdiction issues; or the court may hold an evidentiary hearing on the matter. Id. (citations omitted). To survive a motion to dismiss for lack of personal jurisdiction, however, until a pretrial evidentiary hearing is held or until the trial, the plaintiff need only make a prima facie showing that jurisdiction exists. Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985) (citation omitted); Marine Midland, 664 F.2d at 904. In Hoffritz, the Court explained: In the absence of an" }, { "docid": "23078002", "title": "", "text": "to file rule, the court in both cases expressed reservations as to whether personal jurisdiction could be exercised over the defendants. DISCUSSION On appeal, as in the district court, FCNB devotes much of its argument to proving that personal jurisdiction over Simmons and Moody exists in New York. FCNB, of course, bears the burden of establishing jurisdiction over defendants in these actions. See Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir.1983); Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). If the defendant contests the issue, the court may order an evidentiary hearing, at which plaintiff must demonstrate personal jurisdiction by a preponderance of the evidence. See Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1986). Although neither district court directly addressed the question of jurisdiction, nor did they hold an evidentiary hearing, there is some force to FCNB’s contention that it made the requisite prima facie showing here. Cf. Welinsky v. Resort of the World D.N.V., 839 F.2d 928, 930 (2d Cir.1988) (where court does not hold an evidentiary hearing, pri-ma facie showing of jurisdiction by plaintiff is required); Marine Midland Bank, 664 F.2d at 904 (same). New York’s long-arm statute states, in pertinent part, [a]s to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary ... who in person or through an agent: 1. transacts any business within the state.... N.Y. CPLR § 302(a) (McKinney 1972 & Supp.1989). Plaintiff alleged that National acted as Simmons’ and Moody’s agent in New York by locating a New York City lender and arranging for approval of the loan. In addition, it alleged that by signing promissory notes for the loans and pledging their partnership interests as security, Simmons and Moody “embark[ed] upon an ongoing relationship with the [b]ank in New York.” Accepting these allegations as true for the limited purpose of determining jurisdiction, see Stone v. Chung Pei Chemical Indus. Co., 790 F.2d 20, 21 (2d Cir.1986) (per curiam), it appears defendants conducted sufficient purposeful activity in" }, { "docid": "6902111", "title": "", "text": "for failure to state a claim as required by Federal Rule of Civil Procedure 12(b)(6). CEPA and Gevers have also moved to dismiss cross-claims asserted against them by the H & P Defendants. Stovin-Bradford and D’Souza, who is pro se, have filed motions to dismiss for lack of personal jurisdiction and for failure to state a claim. Finally, Altman and his firm have filed a motion to dismiss the single claim asserted against them, that of attorney malpractice, for failure to state a claim. If the claim is not dismissed, they ask that supplemental jurisdiction pursuant to 28 U.S.C. § 1367 not be exercised over the claim. I. PERSONAL JURISDICTION A. General Considerations. “On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the court has jurisdiction over [a] defendant.” Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.), cert. denied, — U.S. —, 117 S.Ct. 508, 136 L.Ed.2d 398 (1996). A district court has “considerable procedural leeway” in deciding a Rule 12(b)(2) motion. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). Here, some discovery has been taken on jurisdictional issues, but the court has not held an evidentiary hearing on the issue of the exercise of personal jurisdiction. In this procedural posture, the plaintiffs need only make a prima facie showing that personal jurisdiction exists, but this showing “must include an averment of facts that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction.” Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d at 567 (quotation omitted). In deciding the motion, all pleadings and affidavits must be construed in the light most favorable to the plaintiffs, and all doubts resolved in their favor. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985). However, in a case involving non-U.S. parties, the court must be mindful of the Supreme Court’s admonition that “(g)reat care and reserve should be exercised when extending our notions of personal jurisdiction into the international field.” Asahi Metal Industry Co. v." }, { "docid": "2555987", "title": "", "text": "it has insufficient contacts with this forum to be subject to jurisdiction. Personal jurisdiction in a federal diversity case is determined by reference to the law of the jurisdiction in which the court sits. United States v. First National City Bank, 379 U.S. 378, 85 S.Ct. 528, 13 L.Ed.2d 365 (1965); Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985). In doing so, a court may rely on material outside the pleadings to establish jurisdictional facts, the materials must be taken in the light most favorable to the plaintiff, and the plaintiff needs to make only a prima facie showing of jurisdiction, notwithstanding a controverting presentation by the moving party. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). See also Hoffritz, 763 F.2d at 55. New York Civ.Prac.Law § 301 provides: “A court may exercise such jurisdiction over persons, property or status as might have been exercised heretofore.” This preserves earlier New York case law “which provided that a corporation is ‘doing business’ and is therefore ‘present’ in New York and subject to personal jurisdiction with respect to any cause of action, related or unrelated to New York contacts, if it does business in New York ‘not occasionally or casually, but with a fair measure of permanence and continuity.’ ” Hoffritz For Cutlery v. Armajac, Ltd., 763 F.2d at 58 (quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915 (1917)). In discussing what constitutes “doing business,” the Second Circuit has observed: “The New York courts, in applying the pragmatic test for section 301 jurisdiction, have focused upon factors including: the existence of an office in New York; the solicitation of business in the state; the presence of bank accounts and other property in the state; and the presence of employees of the foreign defendant in the state.” Id. Here Bower has put forth facts to meet enough of these criteria to establish prima facie jurisdiction under § 301. Among other documents, Bower has submitted to the court a memorandum addressed to her and others from a Mitchell Reinschreiber," }, { "docid": "6339624", "title": "", "text": "in admiralty should give full effect to forum-selection clauses. M/V Bremen v. Zapata Offshore Co., 407 U.S. 1, 9-10, 92 S.Ct. 1907, 1912-1913, 32 L.Ed.2d 513 (1972). In Bremen, the Court recognized that a forum-selection clause is tantamount to consent to jurisdiction in a particular forum. See 407 U.S. at 10-11, 92 S.Ct. at 1913-1914 (1972) (citing National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 315-16, 84 S.Ct. 411, 414-15, 11 L.Ed.2d 354 (1964)). An arbitration agreement is a specialized kind of forum-selection clause, and is subject to the same principles. See Scherk v. Alberto-Culver Co., 417 U.S. 506, 519, 94 S.Ct. 2449, 2457, 41 L.Ed.2d 270 (1974). Accordingly, an agreement to arbitrate in a particular forum constitutes consent to personal jurisdiction in the courts of that forum. Merrill Lynch, Pierce, Fenner & Smith v. Lecopulos, 553 F.2d 842, 844 (2d Cir.1977). Plaintiff bears the burden of proving that Douglas has consented to personal jurisdiction in New York. See Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985). In the absence of an evidentiary hearing, plaintiff need only make a prima facie showing of personal jurisdiction through affidavits and other supporting materials, notwithstanding any controverting presentation by the defendant. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981); Catsimatidis v. Innovative Travel Group, Inc., 650 F.Supp. 748, 750 (S.D.N.Y.1986); Bialek v. Racal-Milgo, Inc., 545 F.Supp. 25, 32-33 (S.D.N.Y.1982). The supporting materials are construed in the light most favorable to the plaintiff, and all doubts are to be resolved in plaintiff’s favor. Hoffritz for Cutlery, 763 F.2d at 57 (2d Cir.1985). Plaintiff’s contention that Douglas has consented to personal jurisdiction in New York is premised on the theory that Douglas is personally liable for the corporate acts of Caribbean. Incorporation generally shields shareholders, officers, managers and agents from liability arising out of corporate activities. Armada Supply, Inc. v. S/T Agios Nikolas, 613 F.Supp. 1459, 1471 (S.D.N.Y.1985). When, however, individuals use the corporation to perpetrate a fraud, or so dominate and disregard the corporate form that the corporation primarily transacts their personal business, the" }, { "docid": "2555986", "title": "", "text": "a 12(b)(6) motion to rely on material outside the pleadings submitted by defendants unless converting the motion into a Rule 56 motion and giving plaintiff an opportunity to respond. Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir.1985). Accordingly, the court has disregarded the affidavits discussed by defendants. III. Failure to Comply with Previous Court Order Defendants argue that Bower has failed to comply with the court’s direction to allege which defendant committed which act. In the complaint that was the subject of that motion, Bower employed the term “defendant” without specification. Bower has now removed that uncertainty by alleging that each of them committed each of the acts in the first five claims, and that Weisman alone was responsible for certain acts in the sixth. Whether she will be able to prove this is another matter, but Bower has removed the flaw of indefiniteness as directed by the court, and enjoys the privilege of pleading inconsistently and in the alternative. Fed.R.Civ.P. 8(e)(2). IV. FWC’s Claim of Lack of Jurisdiction A. Contacts FWC claims that it has insufficient contacts with this forum to be subject to jurisdiction. Personal jurisdiction in a federal diversity case is determined by reference to the law of the jurisdiction in which the court sits. United States v. First National City Bank, 379 U.S. 378, 85 S.Ct. 528, 13 L.Ed.2d 365 (1965); Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985). In doing so, a court may rely on material outside the pleadings to establish jurisdictional facts, the materials must be taken in the light most favorable to the plaintiff, and the plaintiff needs to make only a prima facie showing of jurisdiction, notwithstanding a controverting presentation by the moving party. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). See also Hoffritz, 763 F.2d at 55. New York Civ.Prac.Law § 301 provides: “A court may exercise such jurisdiction over persons, property or status as might have been exercised heretofore.” This preserves earlier New York case law “which provided that a corporation is ‘doing business’ and is therefore ‘present’" }, { "docid": "3383442", "title": "", "text": "357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). The burden oí establishing jurisdiction over a defendant is on the plaintiff. The plaintiff must merely make a prima facie showing that jurisdiction exists, however, despite contrary allegations by the moving party. See A. I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79 (2d Cir.1993); Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981); Rolls-Royce Motors, Inc. v. Charles Schmitt and Co., 657 F.Supp. 1040, 1043 (S.D.N.Y.1987) (Leisure, J.). Giv en that no evidentiary hearing has been held, plaintiff need not, at this point, prove jurisdiction by a preponderance of the evidence. Rolls-Royce Motors, Inc., 657 F.Supp. at 1043. The Court is to construe all pleadings and affidavits in the light most favorable to the plaintiff, and is to resolve any doubts in the plaintiff's favor. See A.I. Trade Finance, Inc., 989 F.2d at 79, 80 (citing CutCo Industries, Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986) and Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985)); Rolls-Royce Motors, Inc., 657 F.Supp. at 1043. Whether this Court has personal jurisdiction over a defendant in a diversity action is determined under New York law. See Aluminal Industries, Inc. v. Newtown Commercial Associates, 89 F.R.D. 326, 328 (S.D.N.Y.1980). N.C.C. contends that this Court has jurisdiction over defendants on the basis of N.Y.Civ.Prac.L. & R. § 302(a)(1), as well as on the basis of § 302(a)(3). Under § 302(a)(1), personal jurisdiction is proper where an individual “transacts any business” in New York if the cause of action arises from this transacting of business. See CutCo Indust., Inc., 806 F.2d at 365; McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, 419 N.E.2d 321 (1981). Under § 302(a)(3), personal jurisdiction is proper where a defendant commits a tortious act outside of New York causing injury to person or property within New York. See Mareno v. Rowe, 910 F.2d 1043, 1046 (2d Cir.1990). B. APPLICATION OF N.Y. LONG-ARM STATUTE TO THE INSTANT ACTION This Court finds that it has jurisdiction over the" }, { "docid": "15778752", "title": "", "text": "affidavits, without an evidentiary hearing, the plaintiff need only make a prima facie showing that jurisdiction exists. CutCo Industries v. Naughton, 806 F.2d 361, 364-65 (2d Cir.1986). All pleadings and affidavits are construed in the light most favorable to the plaintiff, and all doubts are resolved in its favor. Id.; Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985). A plaintiff who succeeds in making this prima facie showing still bears the burden of establishing in person-am jurisdiction at trial by a fair preponderance of the evidence. Morse Typewriter Co. Inc. v. Samanda Office Communications Ltd., 629 F.Supp. 1150, 1151-52 (S.D.N.Y.1986) (citing Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981) and Teachers Ins. & Annuity Ass’n of America v. Butler, 592 F.Supp. 1097, 1099 (S.D.N.Y.1984)). In ruling on a motion to dismiss for lack of personal jurisdiction, a court must consider whether there is a statutory basis for jurisdiction and whether the exercise of personal jurisdiction under state law comports with due process under the fourteenth amendment. As the Supreme Court has often reiterated, for due process to be satisfied, the defendant must have “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); see Asahi Metal Ind. Co. v. Superior Ct. of California, 480 U.S. 102, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92 (1987); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980). To support long-arm jurisdiction, a plaintiff must show that the nondomiciliary defendant performed “some act by which [it] purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Asahi Metal Ind. Co. v. Superior Ct, 107 S.Ct. at 1031 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) and Hanson v. Denckla, 357 U.S. 235, 253, 78" }, { "docid": "10187959", "title": "", "text": "aval on the Welfin Notes. Dr. Chalabi has left Jordan and is now residing abroad. He denies any illegal or improper activities, asserting that his fugitive status arises from his opposition to Iraqi leader Saddam Hussein. Petra Bank’s operations have been taken over by a “management committee,” which has announced a moratorium on payment of all outstanding obligations. When the Welfin Notes reached their maturity, Petra Bank did not honor the avals. A.I. Trade sued Petra Bank in a New York district court sitting in diversity to enforce the avals with respect to its three Welfin Notes in the total amount of $7.5 million. Petra Bank has since entered liquidation proceedings in Jordan and A.I. Trade has also filed a claim in those proceedings. Shortly after A.I. Trade commenced this suit, it obtained an order attaching certain New York bank accounts belonging to Petra Bank with a combined balance of approximately $4 million. Petra Bank moved to vacate the attachment and, pursuant to Fed.R.Civ.P. 12(b)(2), moved to dismiss the complaint for lack of personal jurisdiction. By its order dated March 7, 1991, the district court granted Petra Bank’s motion. A.I. Trade’s motion for reargument was denied by an order dated October 22, 1992. We granted A.I. Trade’s motion for a stay of the vacatur and for an expedited appeal of the district court’s orders and the judgment entered thereon. II. DISCUSSION To survive the motion to dismiss, A.I. Trade was required to make only a prima facie showing that Petra Bank is amenable to personal jurisdiction in New York. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). Eventually personal jurisdiction must be established by a preponderance of the evidence, either at an evidentiary hearing or at trial. But where the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiff’s favor, notwithstanding a controverting presentation by the moving party. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985); see Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 196-98" }, { "docid": "14564616", "title": "", "text": "op. at 2, 1989 WL 225418; New England Systems, Inc. v. Service of North America, Inc., Civ. No. N87-359 (EBB) (D.Conn. Nov. 13, 1987), slip op. at 3-4; Teleco Oilfield Services, Inc. v. Skandia Ins. Co., 656 F.Supp. 753, 756 (D.Conn.1987). The plaintiff has the burden of establishing, by a preponderance of the evidence, that personal jurisdiction exists. Savin, supra, 898 F.2d at 306; Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985); Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981); Morris, supra, slip op. at 4; Mis chel, supra, slip op. at 16; Conlin, supra, slip op. at 3; Swanson v. Edgewood Golf Course of Southwick, Inc., Civ. No. H89470(PCD) (D.Conn. Feb. 20, 1990), slip op. at 2, 1990 WL 484232; Atlantic Maritime Enterprises Corp. v. Hong Kong Borneo Services, Inc., Civ. No. B88-674 (EBB) (D.Conn. Feb. 2, 1990), slip op. at 3, 1990 WL 484929; David, supra, 677 F.Supp. at 98; Crestmont Federal Savings & Loan Association v. Craumer, Civ. No. B89-503 (TFGD) (D.Conn. Nov. 16, 1989), slip op. at 3; Whelen Engineering Co., Inc. v. Tomar Electronics, Inc., 672 F.Supp. 659, 661 (D.Conn.1987); Teleco, supra, 656 F.Supp. at 756. In ruling upon a motion to dismiss for lack of personal jurisdiction, the court may proceed upon written submissions or through an evidentiary hearing; where no evidentiary hearing is held, the plaintiff need only make a prima facie showing, through affidavits and supporting materials, that jurisdiction exists. Hoffritz, supra, 763 F.2d at 57; Morris, supra, slip op. at 4; Conlin, supra, slip op. at 4; Swanson, supra, slip op. at 2; Atlantic Mari time, supra, slip op. at 3-4; NESP Co., Ltd. of Enfield v. Benchmark Industries, Inc., Civ. No. H86-1380(MJB) (Feb. 5, 1988), slip op. at 3; David, supra, 677 F.Supp. at 98; New England Systems, supra, slip op. at 4; Whelen, supra, 672 F.Supp. at 662; Teleco, supra, 656 F.Supp. at 756. All ambiguities must be resolved in the plaintiffs favor. Hoffritz, supra, 763 F.2d at 57; Marine Midland, supra, 664 F.2d at 904; Morris, supra, slip" }, { "docid": "23504974", "title": "", "text": "At this stage of the litigation&emdash;prior to an evidentiary hearing or discovery&emdash;Ben-susan may defeat a motion to dismiss the complaint for lack of personal jurisdiction by making merely a prima, facie showing of jurisdiction. See A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993); Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985); Rothschild v. Paramount Distillers, Inc., 923 F.Supp. 433, 435 (S.D.N.Y.1996); PI, Inc. v. Quality Prods., Inc., 907 F.Supp. 752, 758 (S.D.N.Y.1995); Dave Guardala Mouthpieces, Inc. v. Sugal Mouthpieces, Inc., 779 F.Supp. 335, 336-37 (S.D.N.Y.1991). In that regard, Bensusan is entitled to have its complaint and affidavits interpreted, and any doubts resolved, in the light most favorable to it. See Landoil Resources Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir.1991); Hoffritz for Cutlery, 763 F.2d at 57; Linzer v. EMI Blackwood Music, Inc., 904 F.Supp. 207, 211 (S.D.N.Y.1995); Editorial Musical Latino Americana, S.A. v. Mar Int’l Records, Inc., 829 F.Supp. 62, 64 (S.D.N.Y.1993). This burden is satisfied even when the moving party makes contrary allegations that place in dispute the factual basis of plaintiffs prima facie case. See A.I. Trade Finance, 989 F.2d at 79-80; Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981); Lancaster v. Zufle, 165 F.R.D. 38, 40 (S.D.N.Y.1996); National Cathode Corp. v. Mexus Co., 855 F.Supp. 644, 646 (S.D.N.Y.1994). Furthermore, where, as in this case, discovery has not commenced on this issue or any other, plaintiff is entitled to rely on mere factual allegations to make its prima facie showing of jurisdiction. See Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990); Rothschild, 923 F.Supp. at 436; Executive Telecard, Ltd. v. Engelman, No. 95 Civ. 9505, 1996 WL 191967, at *2 (S.D.N.Y. Apr. 19, 1996); Pilates, Inc. v. Pilates Inst., Inc., 891 F.Supp. 175, 177 (S.D.N.Y.1995); Palmieri v. Estefan, 793 F.Supp. 1182, 1186 (S.D.N.Y.1992); Kinetic Instruments, Inc. v. Lares, 802 F.Supp. 976, 981 (S.D.N.Y.1992). Matters outside the pleadings, however, may also be considered in" } ]

[ { "docid": "7070245", "title": "", "text": "infringe the Pettit patent, and they opposed the granting of the injunction solely upon the ground of noninfringement. The granting or refusing of a preliminary injunction in such a suit ordinarily rests in the sound discretion of the trial court, and the review thereof by an appellate court is limited to the inquiry whether there was abuse of discretion in granting the writ. This rule has been so often applied by this court, and is so well established by precedent, as to require the citation of no authorities. It is sufficient to refer to the language of Judge Jackson in Blount v. Societe Anonyme du Filtre Chamberland Systeme Pasteur et al., 53 Fed. 98, 3 C. C. A. 455: “The object and purpose of a preliminary injunction is to preserve the existing state of things until the rights of the parties can be fairly and fully investigated and determined upon strictly legal proofs and according to the course and principles of courts of equity. The prerequisites to the allowance and issuance of such injunction are that the party applying for the same must generally present a clear title, or one free from reasonable doubt, and set forth acts done or threatened by the defendant which will seriously or irreparably injure his rights under such title unless restrained.” See, also, the decision of this court in Jensen Can-Filling Machine Co. v. Norton, 64 Fed. 662, 12 C. C. A. 608, and Southern Pacific Co. v. Earl, 82 Fed. 690, 27 C. C. A. 185. It is held that, to entitle the complainant to a preliminary injunction in a suit for the infringement of a patent prior to a trial on the merits, he must show three things: First, a clear title to the patent; second, its presumptive validity; and, third, threatened infringement by the defendant. Edison Electric Light Co. v. Beacon Vacuum Pump & Electrical Co. (C. C.) 54 Fed. 679, and Norton v. Eagle Automatic Can Co. (C. C.) 57 Fed. 929. In the case last cited, Judge Hawley said: “I understand the rule to be well settled that where" } ]

[ { "docid": "16179532", "title": "", "text": "suits in which only private interests are involved the award is a matter of sound judicial discretion, in the exercise of which the court balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction.” The necessity of balancing the competing equities has been recognized by this Court. Pennsylvania Motor Truck Ass’n v. Port of Phila. M. T. Ass’n, 183 F.Supp. 910, 918 (E.D.Pa.1960). But the discretionary power to grant a preliminary injunction is a power to be exercised with great caution. Murray Hill Restaurant, Inc. v. Thirteen Twenty One Locust, 98 F.2d 578, 579 (3rd Cir. 1938). Since the injunction which is sought has mandatory aspects, the burden of making a strong showing, on the part of plaintiffs, is a heavy one. See W. A. Mack, Inc. v. General Motors Corporation, 260 F.2d 886 (7th Cir. 1958). To recite all the semantic variations of the phrases which courts have used in describing the chancellor’s chore cannot serve any useful purpose. It is enough to say that the issues are doubtful. As was said in Madison Square Garden Corporation v. Braddock, 90 F.2d 924, 927 (3rd Cir. 1937): “ * * * It has been well stated that upon an application for a preliminary injunction to doubt is to deny.” Accordingly, after hearing all of the plaintiffs’ evidence, and considering the exhibits and arguments, this Court finds that plaintiffs have failed to meet the burden required of them and, therefore, finds as a fact that plaintiffs have failed to prove bad faith, coercion, discrimination, or threatened irreparable harm warranting the issuance of a preliminary injunction under the law. It is to be understood however, that this Court is in no sense deciding the case on the merits. It is therefore the ruling of this Court that plaintiffs’ petition for preliminary injunction be dismissed and it is SO ORDERED." }, { "docid": "918672", "title": "", "text": "for the reasons set forth in the opinion of the learned trial judge. Accordingly, I dissent. . See also Springfield Crusher v. Transcontinental Insurance Co., 372 F.2d 125 (3 Cir. 1967): “There is an abuse of discretion * * * when the action of the trial judge is clearly contrary to reason and not justified by the evidence”; New York Asbestos Manufacturing Co. v. Ambler Asbestos Air-Cell Covering Company, 102 F. 890 (3 Cir. 1900), quoted in Murray Hill Restaurant v. Thirteen Twenty One Locust, 98 F.2d 578, 579 (3 Cir. 1938): “The granting of a preliminary injunction is an exercise of a very far reaching power, never to be indulged in except in a ease clearly demanding it; and the decision of a court of first instance, refusing such an injunction, will not, except for very strong reasons, be reversed by this court.” . “That the trial court could have viewed the facts differently, or that we might perhaps have done so, if we had been the initial trier thereof, does not alone entitle us to reverse. Under Rule 52 (a) and its interpretation in the United States Gypsum Co. case, [United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746], there must exist a stronger basis for overthrowing a finding of fact than a mere difference in personal judgment. Such evidentiary weight and such convictional certainty must be present that the appellate court does not feel able to escape the view that the trial court has failed to make a sound survey of or to accord the proper effect to all of the cogent facts, giving due regard, of course, to the trial court’s appraisal of witness credibility where that factor is involved.” Nee v. Linwood Securities Co., 174 F.2d 434, 437 (8 Cir. 1949). See also Judge Learned Hand’s observation in United States v. Aluminum Co. of America, 148 F.2d 416, 433 (2 Cir. 1945): “It is idle to try to define the meaning of the phrase ‘clearly erroneous’; all that can be profitably said is that an appellate court, though" }, { "docid": "2409181", "title": "", "text": "Co., 55 F.2d 42, 45 (4th Cir. 1932). Preliminary injunctions are not to be granted automatically. First Citizens Bank & Trust Co. v. Camp, 432 F.2d 481, 483 (4th Cir. 1970). Moreover, “[wjhere serious issues are before the court, it is a sound idea to maintain the status quo ante litem. ...” Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 194-195 (4th Cir. 1977). Accord: Singleton v. Anson County Board of Education, 387 F.2d 349 (4th Cir. 1967); Sinclair Refining Co. v. Midland Oil Co., supra. “The purpose of the preliminary injunction is to preserve the status quo until the rights of the parties can be fairly and fully investigated and determined by strictly legal proofs and according to the principles of equity, [citations omitted]” Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94, 97 (4th Cir. 1950). The authority of the district court judge to issue a preliminary injunction, especially a mandatory one should be sparingly exercised. Mandatory preliminary injunctions do not preserve the status quo and normally should be granted only in those circumstances when the exigencies of the situation demand such relief. I.C.C. v. Baltimore & Annapolis R. Co., 64 F.R.D. 337 (D.C.Md.1974). Furthermore, a preliminary injunction may not be availed of to secure a piecemeal trial. Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94, 96 (4th Cir. 1950). Accord: Singleton v. Anson County Board of Education, supra. Generally, the proper administration of justice necessitates that the appellate court have the case completely before it in rendering a decision thereon. Our decisions in Blackwelder Furniture Co. v. Seilig Manufacturing Co., supra, and Fort Sumter Tours, Inc., v. Andrus, 564 F.2d 1119 (4th Cir. 1977) are controlling with respect to the trial court standard for interlocutory relief. Judge Winter in North Carolina State Ports Authority v. Dart Containerline Co., Ltd., 592 F.2d 749 (4th Cir. 1979), aptly summarized the applicable rules of law as developed in this circuit: “Summarized, the principles laid down in those eases are that in this circuit the trial court standard for interlocutory relief is the balance of hardship test. Four" }, { "docid": "11279976", "title": "", "text": "justify the issuance of a preliminary injunction certain prerequisites must exist. The fact that violations of the antitrust laws have been alleged does not displace the normal rules of equity. Kay Instrument Sales Co. v. Haldex Aktiebolag, 296 F. Supp. 578 (S.D.N.Y.1968). The law of this circuit and district is well settled as to the showing which is required before a preliminary injunction will issue. A preliminary injunction will issue only “in a case clearly demanding it” and only “to preserve the status quo pendente lite.” Warner Bros. Pictures, Inc. v. Gittone, 110 F.2d 292, 293 (C.A. 3, 1940). In this district temporary injunctive relief must be denied unless the moving party can demonstrate (1) that there is no serious dispute between the parties as to the facts alleged or the law applicable, (2) that there is a reasonable probability of the moving party’s success at final hearing, (3) that irreparable injury will result to the moving party, for which there is no adequate remedy at law, unless the relief is granted, (4) that the moving party will suffer more severe injury if the relief is denied than the other party will suffer if the relief is granted. Henis v. Compania Agricola De Guatemala, 116 F.Supp. 223 (D.Del.1953), aff’d 210 F.2d 950 (C.A. 3, 1954); American Smelting and Refining Co. v. Pennzoil United, Inc., 295 F. Supp. 149 (D.Del.1969); Wilmington City Ry. Co. v. Taylor, 198 F. 159 (D.Del.1912); see also 78 Harv.L.Rev. 994, 1056 (1965). The moving party, the plaintiff in this case, has the burden of showing that he is entitled to the injunctive relief requested. Garlock, Inc. v. United Seal, Inc., 404 F.2d 256 (C.A. 6, 1968). The issuance of preliminary injunctive relief rests in the sound discretion of the trial court. United States v. Ingersoll-Rand Co., 320 F.2d 509 (C.A. 3, 1963). The party seeking a preliminary injunction to restrain acts claimed to be in violation of the Clayton Act and the Sherman Anti-Trust Act must allege only facts as to which there is no serious dispute and must demonstrate a reasonable likelihood of success. Vanadium" }, { "docid": "322627", "title": "", "text": "LEAHY, Chief Judge. A mere reading of the affidavits reveals sharp issues of fact between the parties. The pleadings also suggest difficult questions of law are in dispute. The relief which plaintiffs, here, seek, calls for one of the extraordinary equitable remedies. It is established law of this District and Circuit that a preliminary injunction will not issue under such circumstances. Sneider v. Transcontinental & Western Air., D.C.Del., 79 F. Supp. 339, 341; Reynolds International Pen Co. v. Eversharp, D.C.Del., 63 F. Supp. 423, citing Warner Bros. Pictures v. Gittone, 3 Cir., 110 F.2d 292; Murray Hill Restaurant v. Thirteen Twenty One Locust, 3 Cir., 98 F.2d 578; Hand v. Missouri-Kansas Pipe Line Co., D.C.Del., 54 F.Supp. 649; Oneida Community v. Fouke Fur Co., D.C.Del., 286 F. 757; General Talking Pictures v. Stanley Co., D.C.Del., 42 F.2d 904; Popular Mechanics v. Fawcett, D.C.Del., 1 F.Supp. 292; United States v. Weirton Steel Co., D.C. Del., 7 F.Supp. 255. The party seeking a preliminary injunction must not only allege facts as to which there is no serious dispute but also indicate such facts must show that the moving party has a reasonable probability of success upon final hearing. If any doubts are created by the paper record as to the merits of the claim for relief, the preliminary injunction will be denied. General Talking Pictures Corp. v. Stanley Co., D.C., 42 F.2d 904, 906; Porges v. Vadsco Sales Corp., 27 Del.Ch. 127, 135, 32 A.2d 148; Belle Isle Corp. v. MacBean, 29 Del.Ch. 261, 49 A.2d 5. The threatened injury, if it can be compensated for by a monetary award, will not support the issuance of the court’s injunctive process. The threatened damage must be irreparable. Hand v. Missouri-Kansas Pipe Line Co., supra. And Now, April 30, 1953, plaintiffs’ motion for preliminary injunction pendente lite having come on for argument, and counsel having been heard, it is Ordered that said motion for preliminary injunction be and the same hereby is denied. On Motion to Dismiss. This is a derivative action on behalf of International Railways of Central America, a New Jersey corporation" }, { "docid": "5611311", "title": "", "text": "case or in connection with antitrust or federal securities questions, Judge Winter laid down the following general principles with respect to preliminary injunctive relief: The decision to grant a preliminary injunction is discretionary with the district judge and may not be set aside on appeal unless an abuse of discretion is shown. Singleton v. Anson County Board of Education, 387 F.2d 349 (4 Cir. 1967); Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94 (4 Cir. 1950); Sinclair Refining Co. v. Midland Oil Co., 55 F.2d 42 (4 Cir. 1932). The factors to be considered by the district judge have long been settled in this circuit: [I]t is sufficient if the court is satisfied that there is a probable right and a probable danger and that the right may be defeated, unless the injunction is issued, and considerable weight is given to the need of protection to the plaintiff as contrasted with the probable injury to the defendant * * * Sinclair Refining Co. v. Midland Oil Co., 55 F.2d at 45. As the above quotation indicates, it is not necessary that Conservancy demonstrate an absolute right to the relief it seeks in order to sustain the issuance of this preliminary injunction; it need establish only “probable right.” It is apparent that Conservancy has raised substantial issues concerning the application of recent federal conservationist legislation to the administration of the National Forest system. Such issues are of great current public concern. They should be fully developed and litigated at the trial level in order to insure their proper resolution. It is at that stage that the various defenses raised by Dorrell should be asserted. While we express no opinion on these questions on their merits, we can say that their resolution is not immediately apparent. That is enough to say that Conservancy has not embarked on frivolous litigation, and thus interlocutory relief is not improper if Conservancy can also show a need for protection which outweighs any probable injury to Dorrell. * * * * * * The public interest is also a relevant consideration. Yakus v. United States, 321" }, { "docid": "23371118", "title": "", "text": "evidence being submitted, even though perhaps at least partially at the instigation and insistence of the litigants, it appears much broader than the relief requested and than the question at hand. The matter before the court was a motion for a preliminary injunction which by its nature has the purpose of preserving the status quo to prevent irreparable injuries until the merits of the issues can be decided. Seagram-Distillers Corp. v. New Cut Rate Liquors, 7 Cir., 221 F.2d 815, certiorari denied 350 U.S. 828, 76 S.Ct. 59, 100 L.Ed. 740; Missouri-Kansas-Texas R. Co. v. Randolph, 8 Cir., 182 F.2d 996; Meiselman v. Paramount Film Distributing Corp., 4 Cir., 180 F.2d 94. There was no showing in this case of threat of irreparable injuries or the necessity requiring the calling of a special meeting of the stockholders and election of directors in this manner. Furthermore, even an order for a preliminary injunction requires as a prerequisite a hearing, Rule 65(b), F.R.C.P., which is interpreted to mean a hearing of the facts pertinent to a decision on the, motion. Hawkins v. Board of Control of Florida, 5 Cir., 253 F.2d 752; Sims v. Greene, 3 Cir., 161 F.2d 87. The judgment awarded appears to provide the plaintiffs with practically all of the relief, if not more, than they sought on the merits, in granting the stockholders the right to fill vacancies of the board of directors occurring between annual meetings, and this at a meeting called by the court without the requisite number of shareholders requesting it. It further restrains an agency of the United States Government from exercising its statutory functions merely on unproven and vague allegations that representatives of the agency acted improperly, and it adjudicates rights of, and enjoin, persons not even parties to the litigation. A mandatory injunction of this nature, especially at the preliminary stage of proceedings, should not be granted except in rare instances in which the facts and law are clearly in favor of the moving party. American Lead Pencil Co. v. Schneegass, C. C., 178 F. 735; Zugsmith v. Davis, D.C.S.D.N.Y., 108 F.Supp." }, { "docid": "5611310", "title": "", "text": "make the new statute a potent tool for incumbent management to protect its own interests against the desires and welfare of the stockholders. These considerations bear on the kind of judgment to be applied in testing conduct — of both sides — and also on the issue of materiality. Id. at 948 * * * [emphasis by Judge Stapleton]. ifc Sfi . [W]e think that in administering § 14(d) and (e), district judges would do well to ponder whether, if a violation has been sufficiently proved on an application for a temporary injunction, the opportunity for doing equity is not considerably better than it will be later on. The court will have a variety of tools usable at that stage. If the filings are defective or the tender offer misleading, the court can [for example] require correction, along, of course, with an opportunity to withdraw . Id. at 947. In West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232, 235-36 (4th Cir. 1971), while not in the context of a tender offer case or in connection with antitrust or federal securities questions, Judge Winter laid down the following general principles with respect to preliminary injunctive relief: The decision to grant a preliminary injunction is discretionary with the district judge and may not be set aside on appeal unless an abuse of discretion is shown. Singleton v. Anson County Board of Education, 387 F.2d 349 (4 Cir. 1967); Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94 (4 Cir. 1950); Sinclair Refining Co. v. Midland Oil Co., 55 F.2d 42 (4 Cir. 1932). The factors to be considered by the district judge have long been settled in this circuit: [I]t is sufficient if the court is satisfied that there is a probable right and a probable danger and that the right may be defeated, unless the injunction is issued, and considerable weight is given to the need of protection to the plaintiff as contrasted with the probable injury to the defendant * * * Sinclair Refining Co. v. Midland Oil Co., 55 F.2d at 45. As the above" }, { "docid": "600139", "title": "", "text": "Chicago, B. & Q. Ry. Co., 8 Cir., 141 F. 898; Societe Anonyme du Filtre Chamberland Systeme Pasteur v. Allen, 9 Cir., 90 F. 815. The purpose of the preliminary injunction is to preserve the status quo until the rights of the parties can be fairly and fully investigated and determined by strictly legal proofs and according to the principles of equity. Blount v. Societe, 6 Cir., 53 F. 98; Kings County Raisin & Fruit Co. v. United States Consol. Raisin Co., 9 Cir., 182 F. 59.” Directly in point is the decision of the Court of Appeals of the Third Circuit in Warner Bros. Pictures v. Gittone, 3 Cir., 110 F.2d 292, 293, wherein the court said: “We have pointed out frequently that the granting of a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it. New York Asbestos Mfg. Co. v. Ambler Asbestos Air Cell Cov. Co., 3 Cir., 102 F. 890; Barker Painting Co. v. Brotherhood of Painters, 3 Cir., 15 F.2d 16; Murray Hill Restaurant v. Thirteen Twenty One Locust, 3 Cir., 98 F.2d 578. To justify the granting of such an injunction there must be a showing of irreparable injury during the pendency of the action. American Mercury v. Kiely 2 Cir., 19 F.2d 295; Murray Hill Restaurant v. Thirteen Twenty One Locust, supra. It must also appear that the injunction is required to preserve the status quo pendente lite. American Mercury v. Kiely, supra; 1 Joyce on Injunctions, § 109a; 1 High on Injunctions, § 10.” And the rule that the granting or denial of an interlocutory injunction will not be interfered with in the absence of an abuse of discretion by the trial court has been applied time after time by the Supreme Court. See South Carolina Power Co. v. South Carolina Commission, 286 U.S. 525, 52 S.Ct. 494, 76 L.Ed. 1268, affirming the denial of an interlocutory injunction where the question involved was a pure question of law, as appears from the opinion of the lower court reported in" }, { "docid": "13849254", "title": "", "text": "testing the credibility of the witnesses by having the benefit of their-cross-examination and, if possible,, their presence in court. In the absence of such opportunity the affidavits of each side were entitled to equal weight.” On numerous occasions the-Third Circuit has cautioned that the granting of a preliminary injunction is. an exercise of a very far-reaching power, never to be indulged in except in a-case clearly demanding it. See New York Asbestos Mfg. Co. v. Ambler Asbestos Air Cell Covering Co., 3 Cir., 1900, 102 F. 890, 891; Barker Painting Co. v. Brotherhood of Painters, 3 Cir., 1926, 15 F.2d 16. To justify the granting of suchi an injunction there must be a showing of irreparable injury during the pend-ency of the action and a finding of fact to such effect. Sims v. Greene, 3 Cir., 1947, 161 F.2d 87, 89; Murray Hill Restaurant v. Thirteen Twenty One Locust, supra. The burden is upon the complainant to prove its contentions and I find that the element of irreparable injury has not been sustained. Obviously the case is controlled by the rule repeatedly announced in the district and circuit that a preliminary injunction is never granted where the petition and affidavits disclose that plaintiff’s contentions, in fact and in law, are seriously disputed. Eutectic Welding Alloys Corp. v. Zeisel, D.C.N.J.1950, 11 F.R.D. 78; United States v. Republic Oil Refining Co., D.C.N.J.1934, 8 F.Supp. 897; Fleetway, Inc., v. Public Service Interstate Transportation Co., D.C.N.J.1933, 4 F.Supp. 482, affirmed 3 Cir., 1934, 72 F.2d 761, certiorari denied 1935, 293 U.S. 626, 55 S.Ct. 347, 79 L.Ed. 713. This case illustrates the futility of considering a motion for a preliminary injunction in cases of this kind upon ex parte affidavits. Not only is there a conflict of material facts, but there are serious and intricate questions of law involved, particularly as to the applicability of the Norris-La Guardia Anti-Injunction Act. It has been said that in weighing an application for a preliminary injunction, to doubt is to deny. Madison Square Garden Corp. v. Braddock, 3 Cir., 1937, 90 F.2d 924, affirming D.C.N.J.1937, 19 F.Supp." }, { "docid": "20939025", "title": "", "text": "772, which holds that Section 2283 is inapplicable to a suit brought by the United States. This clearly distinguishes it from the case at hand. If this Court had the authority to issue the injunction prayed for, it would not, as a federal Court of equity, issue such injunction in view of the facts disclosed at the hearing. Cleary v. Bolger, 371 U.S. 392, 83 S.Ct. 385, 9 L.Ed.2d 390; Wojcik v. Palmer, U.S.C.A.7th, 318 F.2d 171; Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Watchtower Bible & Tract Soc. v. City of Bristol, D.C., 24 F.Supp. 57, affirmed 305 U.S. 572, 59 S.Ct. 246, 83 L.Ed. 361. An injunction staying State criminal proceedings is an extraordinary remedy which will not be indulged in by a Federal Court of equity except in a case clearly demanding it. Bailey v. Patterson, 368 U.S. 346, 82 S.Ct. 282, 7 L.Ed.2d 332; Warner Bros. Pictures v. Gittone, U.S.C.A.3rd, 110 F.2d 292; Murray Hill Restaurant v. Thirteen Twenty One Locust, U.S.C.A.3rd, 98 F.2d 578; American Mercury v. Kiely, U.S.C.A.2d, 19 F.2d 295; 1 Joyce on Injunctions, Sec.109A; 1 High on Injunctions, Sec. 10; South Carolina Power Co. v. South Carolina Tax Commission, 286 U.S. 525, 52 S.Ct. 494, 76 L.Ed. 1268; United States v. Corrick, 298 U.S. 435, 56 S.Ct. 829, 80 L.Ed. 1263; Meccano Limited v. John Wanamaker, 253 U.S. 136, 40 S.Ct. 463, 64 L.Ed. 822; Westinghouse Electric Corp. v. Free Sewing Mach. Co., U.S.C.A. 7th, 256 F.2d 806; Meiselman v. Paramount Film Distributing Corp., U.S.C.A. 4th, 180 F.2d 94. The complaint alleges, and counsel for plaintiff contend that plaintiff will not receive a fair trial in the Courts of the State of Mississippi. There is no factual basis for any such contention, and there is a strong legal presumption to the contrary. Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152; Hawk v. Jones, U.S.C.A.8th, 160 F.2d 807; N.A.A.C.P. v. Bennett, D.C. Ark., 178 F.Supp. 191; Browder v. City of Montgomery, D.C.Ala., 146 F.Supp. 127. Realizing that their proof did not support" }, { "docid": "600138", "title": "", "text": "of the trial court will not be disturbed unless there has been a clear abuse of discretion. The granting of the temporary injunction does not determine the rights of the parties. In the exercise of its discretion it is sufficient if the court is satisfied that there is a probable right and a probable danger and that the right may be defeated unless the injunction is issued, and considerable weight is given to the need of protection to the plaintiff as contrasted with the probable injury to the defendant; and the test on appeal is not whether the appellate court would have granted or denied the injunction, but whether the record shows an abuse of authority by the trial judge. Meccano v. Wanamaker, 253 U.S. 136, 141, 40 S.Ct. 463, 64 L.Ed. 822; United States Gramophone Co. v. Seaman, 4 Cir., 113 F. 745; Ritter v. Ulman, 4 Cir., 78 F. 222; El Dorado & W. Ry. Co. v. Chicago, R. I. & P. Co., 8 Cir., 5 F.2d 777; Colorado Eastern Ry. Co. v. Chicago, B. & Q. Ry. Co., 8 Cir., 141 F. 898; Societe Anonyme du Filtre Chamberland Systeme Pasteur v. Allen, 9 Cir., 90 F. 815. The purpose of the preliminary injunction is to preserve the status quo until the rights of the parties can be fairly and fully investigated and determined by strictly legal proofs and according to the principles of equity. Blount v. Societe, 6 Cir., 53 F. 98; Kings County Raisin & Fruit Co. v. United States Consol. Raisin Co., 9 Cir., 182 F. 59.” Directly in point is the decision of the Court of Appeals of the Third Circuit in Warner Bros. Pictures v. Gittone, 3 Cir., 110 F.2d 292, 293, wherein the court said: “We have pointed out frequently that the granting of a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it. New York Asbestos Mfg. Co. v. Ambler Asbestos Air Cell Cov. Co., 3 Cir., 102 F. 890; Barker Painting Co. v. Brotherhood of Painters, 3" }, { "docid": "4795999", "title": "", "text": "EDELSTEIN, District Judge. Plaintiff, as holder of two “basket” patents, one mechanical and one design, has moved for a preliminary injunction against the defendant who is a manufacturer of ladies’ handbags, which are alleged to infringe both patents. The defendant puts in issue the validity of the patents and also denies infringement. The granting of a preliminary injunction “is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it.” Warner Bros. Pictures v. Gittone, 3 Cir., 110 F.2d 292, 293. “It is a cardinal principle of equity jurisprudence that a preliminary injunction shall not issue in a doubtful case. Unless the court be convinced with reasonable certainty that the complainant must succeed at final hearing the writ should be denied.” Hall Signal Co. v. General Ry. Signal Co., 2 Cir., 153 F. 907, 908. Moreover, to justify the granting of a preliminary injunction, there must be a showing of irreparable injury during the pendency of the action, and assuming that “the court is satisfied that there is a probable right and a probable danger and that the right may be defeated unless the injunction is issued, * * * considerable weight is given to the need of protection to the plaintiff as contrasted with the probable injury to the defendant * * *.” Meiselman v. Paramount Film Distributing Corp., 4 Cir., 180 F.2d 94, 96. By these standards, the motion for preliminary injunctive relief must be denied. Though plaintiff claims irreparable injury, no showing has been made beyond conclusory statements in an affidavit. There is no factual statement of the loss of sales or of the circumstances of their loss, or indeed, any statement at all about the extent of plaintiff’s business. The fear is expressed that the plaintiff will be forced out of business unless the defendant is restrained, and that in such an eventuality “the damage would be irreparable.” On the other hand the defendant has set forth in detail the considerable financial loss which would be incurred by him should an injunction be granted. In any event, the" }, { "docid": "13849253", "title": "", "text": "F. 986. This is the view of the Third Circuit expressed in numerous decisions. At no time was it more explicitly enunciated than in Lare v. Harper & Bros., 1898, 86 F. 481, 483, where the court said: “It is a rule, subject to few exceptions, that a preliminary injunction should not be awarded on ex parte affidavits, unless in a clear case.” In Murray Hill Restaurant v. Thirteen Twenty One Locust, 3 Cir., 1938, 98 F.2d 578, the Circuit Court reiterated its-view that the petition for preliminary injunction should be denied especially where it is supported only by affidavits. The reasoning of that court was spelled out further in Warner Bros. Pictures, Inc., v. Gittone, 3 Cir., 1941, 110 F.2d 292, 293, which warrants quotation: “Furthermore we think that a preliminary injunction should not. have been granted upon evidence-largely in the form of affidavits as. was done in the case before us. The-evidence was conflicting and the trial judge, in order to enable him to resolve these conflicts, should have-been afforded the opportunity of' testing the credibility of the witnesses by having the benefit of their-cross-examination and, if possible,, their presence in court. In the absence of such opportunity the affidavits of each side were entitled to equal weight.” On numerous occasions the-Third Circuit has cautioned that the granting of a preliminary injunction is. an exercise of a very far-reaching power, never to be indulged in except in a-case clearly demanding it. See New York Asbestos Mfg. Co. v. Ambler Asbestos Air Cell Covering Co., 3 Cir., 1900, 102 F. 890, 891; Barker Painting Co. v. Brotherhood of Painters, 3 Cir., 1926, 15 F.2d 16. To justify the granting of suchi an injunction there must be a showing of irreparable injury during the pend-ency of the action and a finding of fact to such effect. Sims v. Greene, 3 Cir., 1947, 161 F.2d 87, 89; Murray Hill Restaurant v. Thirteen Twenty One Locust, supra. The burden is upon the complainant to prove its contentions and I find that the element of irreparable injury has not been sustained. Obviously the" }, { "docid": "23661671", "title": "", "text": "studied it in detail. Their interest and the injury they would suffer are much more particularized and specific than those of Sierra Club and its members in a portion of Sequoia National Park. We think our case falls outside of the doctrine of Sierra Club, and, consistent with the other authorities we have cited, we conclude that Conservancy has standing to maintain this action. Ill We turn next to Dorrell’s contention that the district judge abused his discretion in granting a preliminary injunction. The decision to grant a preliminary injunction is discretionary with the district judge and may not be set aside on appeal unless an abuse of discretion is shown. Singleton v. Anson County Board of Education, 387 F.2d 349 (4 Cir. 1967); Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94 (4 Cir. 1950); Sinclair Refining Co. v. Midland Oil Co., 55 F.2d 42 (4 Cir. 1932). The factors to be considered by the district judge have long been settled in this circuit: [I] t is sufficient if the court is satisfied that there is a probable right and a probable danger and that the right may be defeated, unless the injunction is issued, and considerable weight is given to the need of protection to the plaintiff as contrasted with the probable injury to the defendant * * * Sinclair Refining Co. v. Midland Oil Co., 55 F.2d at 45. As the above quotation indicates, it is not necessary that Conservancy demonstrate an absolute right to the relief it seeks in order to sustain the issuance of this preliminary injunction; it need establish only “probable right.” It is apparent that Conservancy has raised substantial issues concerning the application of recent federal conservationist legislation to the administration of the National Forest system. Such issues are of great current public concern. They should be fully developed and litigated at the trial level in order to insure their proper resolution. It is at that stage that the various defenses raised by Dorrell should be asserted. While we express no opinion on these questions on their merits, we can say that their" }, { "docid": "9389551", "title": "", "text": "died on November 29, 1947, and this event certainly should have prompted the annual meeting of the shareholders to be held at the earliest possible date. (i) At a meeting of the Board of Directors on January 5, 1948, the action which fixed the meeting for January 21, 1948, was rescinded and the meeting set for February 16, 1948. (j) The plaintiff was denied a stock-liolders’ list although he agreed to pay for the same and gave the detailed reasons for his request, which made impossible the securing of the names and addresses of the stockholders a reasonable time before the meeting set for February Í6, 1948. Where it has been shown in advance of the annual meeting of the stockholders of a corporation that by reason of fraud, violence or other unlawful means a fair and honest election cannot be held, the courts of equity should intervene to supervise and control corporate elections. Jenkins et al. v. Baxter et al., 160 Pa. 199, 28 A. 682. The relief sought in the present case calls for an extraordinary process. It is the rule of this Circuit and in the Commonwealth of Pennsylvania that the power to grant the extraordinary remedy of injunction should be exercised by courts with great caution and applied only in very clear cases. Barker Painting Co. v. Brotherhood of Painters et al., 3 Cir., 15 F. 2d 16; Murray Hill Restaurant, Inc., v. Thirteen Twenty One Locust, 3 Cir., supra. The object of a preliminary injunction is simply preventive, to maintain things as they are until the rights of the parties can be considered and determined after a full hearing. It is designed to compel the party against whom it is granted to maintain his status merely until the matters in dispute shall by due process of the courts be determined. Audenried v. Philadelphia & Reading Railroad Co., 68 Pa. 370, 8 Am.Rep. 195; Fredericks et al. v. Huber et al., 180 Pa. 572, 37 A. 90; Warner Bros., Inc., v. Gittone, supra; Ball v. Paramount Pictures, Inc., D.C., 57 F. Supp. 505; Commonwealth v. Cohen," }, { "docid": "16179531", "title": "", "text": "should be exercised! by courts with great caution and applied only in very clear cases. Truly v. Wanzer, 5 How. 141, 12 L.Ed. 88; Irwin v. Dixion, 9 How. 11, 13 L.Ed. 25 * * Plaintiffs deny that the law requires a “clear case” (supra), and that a statement like the following, as stated in Charles Simkin & Sons, Inc v. Massiah, 289 F.2d 26, 29 (3rd Cir. 1961) is too strong under the law applicable here: “ * * * As a prerequisite to the issuance of an interlocutory injunction, the moving party must show a clear right to relief. There must be no disputed issues of fact.” Plaintiffs themselves do not deny, jhowever, that the party moving for preliminary injunction must at least make .a showing of probable success upon final hearing. North Carolina Natural Gas Corp. v. United States, 200 F.Supp. 740, '743 (D.Del.1961). They rely largely upon a dictum in Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. £34 (1943): “ * * * Even in suits in which only private interests are involved the award is a matter of sound judicial discretion, in the exercise of which the court balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction.” The necessity of balancing the competing equities has been recognized by this Court. Pennsylvania Motor Truck Ass’n v. Port of Phila. M. T. Ass’n, 183 F.Supp. 910, 918 (E.D.Pa.1960). But the discretionary power to grant a preliminary injunction is a power to be exercised with great caution. Murray Hill Restaurant, Inc. v. Thirteen Twenty One Locust, 98 F.2d 578, 579 (3rd Cir. 1938). Since the injunction which is sought has mandatory aspects, the burden of making a strong showing, on the part of plaintiffs, is a heavy one. See W. A. Mack, Inc. v. General Motors Corporation, 260 F.2d 886 (7th Cir. 1958). To recite all the semantic variations of the phrases which courts have used in describing the chancellor’s chore cannot serve any useful purpose." }, { "docid": "2409180", "title": "", "text": "specified date. This program is not embodied in the prison regulations but apparently is fully developed. Edwards stated in an affidavit that the Division would give serious consideration to putting Wetzel on the MAP program once the Commission indicates that he is a serious parole candidate. Moreover, Mr. Woodward, chairman of the Commission, stated, based on past experiences, that he felt that the Division would cooperate if and when the Commission requested that Wetzel be transferred to another facility for observation for parole. From this, appellants insist that Wetzel’s presence at Central Prison does not hurt his parole chances. I. The ultimate merits of the controversy are not before us on appeal and we do not decide them. This court decides only whether the grant of interlocutory relief to Wetzel was appropriate under the facts of this case. The standard of review on appeal is whether the record shows an abuse of discretion by the district court, not whether the appellate court would have granted or denied the injunction. Sinclair Refining Co. v. Midland Oil Co., 55 F.2d 42, 45 (4th Cir. 1932). Preliminary injunctions are not to be granted automatically. First Citizens Bank & Trust Co. v. Camp, 432 F.2d 481, 483 (4th Cir. 1970). Moreover, “[wjhere serious issues are before the court, it is a sound idea to maintain the status quo ante litem. ...” Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 194-195 (4th Cir. 1977). Accord: Singleton v. Anson County Board of Education, 387 F.2d 349 (4th Cir. 1967); Sinclair Refining Co. v. Midland Oil Co., supra. “The purpose of the preliminary injunction is to preserve the status quo until the rights of the parties can be fairly and fully investigated and determined by strictly legal proofs and according to the principles of equity, [citations omitted]” Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94, 97 (4th Cir. 1950). The authority of the district court judge to issue a preliminary injunction, especially a mandatory one should be sparingly exercised. Mandatory preliminary injunctions do not preserve the status quo and normally should be granted only" }, { "docid": "918671", "title": "", "text": "lowing statement contained in the majority opinion: “Basically, what is at stake in the instant appeal is the life or death of Allis, a viable independent company eager to continue as such, pitted against White, an aggressive, fast-moving acquirer of many diverse businesses, particularly in the past few years.” First, I question the validity of this conclusion, reached without a trial, that Allis-Chalmers cannot survive as an ongoing business if acquired by White. Moreover, I reject the assumption underlying this statement that the judicial branch has been entrusted with the task of policing the economy, preserving the “viability” of the corporate structure. Such a role cannot be justified within the framework of existing anti-trust legislation. It is only where the “life or death” of a corporate entity has anti-competitive effects that judicial intervention is proper. The district court concluded that Allis-Chalmers failed to establish a probability of anti-competitive effects. On the basis of the law and the evidence, I do not find that conclusion clearly erroneous. I would affirm the judgment of the lower court for the reasons set forth in the opinion of the learned trial judge. Accordingly, I dissent. . See also Springfield Crusher v. Transcontinental Insurance Co., 372 F.2d 125 (3 Cir. 1967): “There is an abuse of discretion * * * when the action of the trial judge is clearly contrary to reason and not justified by the evidence”; New York Asbestos Manufacturing Co. v. Ambler Asbestos Air-Cell Covering Company, 102 F. 890 (3 Cir. 1900), quoted in Murray Hill Restaurant v. Thirteen Twenty One Locust, 98 F.2d 578, 579 (3 Cir. 1938): “The granting of a preliminary injunction is an exercise of a very far reaching power, never to be indulged in except in a ease clearly demanding it; and the decision of a court of first instance, refusing such an injunction, will not, except for very strong reasons, be reversed by this court.” . “That the trial court could have viewed the facts differently, or that we might perhaps have done so, if we had been the initial trier thereof, does not alone entitle" }, { "docid": "542821", "title": "", "text": "a full trial on the merits. See Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir. 1953); cf. Grant v. United States, 282 F.2d 165, 168 (2d Cir. 1960). While it is usually possible to attain this goal by prohibitory injunction, at times the issuance of a mandatory writ will be necessary. 7 Moore, op. cit. supra at ¶ 65.04 [1]. However, a mandatory injunction should not be granted prior to final hearing “except in circumstances of the clearest and most urgent necessity * * Eighth Regional War Labor Bd. v. Humble Oil & Ref. Co., 145 F.2d 462, 464 (5th Cir. 1944), cert. denied, 325 U.S. 883, 65 S.Ct. 1577, 89 L.Ed. 1998 (1945); see W. A. Mack, Inc. v. General Motors Corp., 260 F.2d 886 (7th Cir. 1958); Clune v. Publishers’ Ass’n, 214 F.Supp. 520 (S.D.N.Y.), aff’d per curiam, 314 F.2d 343 (2d Cir. 1963). Furthermore, under most circumstances, a preliminary injunction will not issue where it would give plaintiff the actual advantage to be obtained in a final decree. W. A. Mack, Inc. v. General Motors Corp., supra, 260 F.2d at 890; Foundry Servs., Inc. v. Beneflux Corp., 206 F.2d 214 (2d Cir. 1953); Gross v. Kennedy, 183 F.Supp. 750, 757 (S.D.N.Y.1960); Carey v. General Elec. Co., 165 F.Supp. 127 (S.D.N.Y.1958). It is fundamental law that the grant or denial of the preliminary injunction will rest in the sound discretion of the court and such court will be called on to “balance the equities” or “balance the conveniences”. 7 Moore, op. cit. supra at ¶ 65.18 [3]. To be most importantly considered are the hardship to plaintiff if the injunction be granted, the benefit to plaintiff (Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S.Ct. 256, 73 L.Ed. 972 (1929) (per curiam)) and the relative hardship to which a defendant will be subjected. Corica v. Ragen, 140 F.2d 496 (7th Cir. 1944); Smith v. Staso Milling Co., 18 F.2d 736 (2d Cir. 1927). Applying the law to the facts of the instant case, I find that defendant will be more inconvenienced if" } ]

[ { "docid": "13759512", "title": "", "text": "1218, or whether “they are based upon a substantial error in the proceedings or upon a misapplication of the controlling law, or if they are unsupported by any substantial evidence, or if they are contrary to the clear weight of all the evidence”. Kauk v. Anderson, 8 Cir., 1943, 137 F.2d 331, 333. See Pendergrass v. New York Life Ins. Co., 8 Cir., 1950, 181 F.2d 136, 138. After a careful review of the entire record, we agree with the district court (a) that the referee’s finding that the evidence did not establish that the bankrupt did not intend to pay for the merchandise was not clearly erroneous, (b) that materially false statements were knowingly submitted to Endicott by the bankrupt, (c) that the referee’s finding that Endicott did not rely on the statements was clearly erroneous, and (d) that under Iowa law rescission was in order here, and was effected, and as a consequence the petition for reclamation must be granted. We therefore need not dwell on the factor of intent to pay. We consider only material falsity, the bankrupt’s knowledge thereof, and Endicott’s reliance. Material falsity. The material falsity of the bankrupt’s fiscal 1957 and 1958 balance sheets by way of substantial and material understatement of accounts payable has been stipulated and thereby established. Knowledge. That the bankrupt, through Woerderhoff, its President and Treasurer, who had operated the business as a corporation for a number of years, had actual or legally presumed knowledge of that falsity at the time the statements were submitted to Endicott seems to us to be an inescapable conclusion. The only evidence which we find in this record tending to support a lack of knowledge on the part of the bankrupt of the falsity of the statements is the answer to the following question propounded to Mr. Woerderhoff on redirect examination : “Question: When you prepared these financial statements, did you believe at that time they were true and correct? Answer: Yes, I did.” This was followed immediately, on recross, by: “Question: Mr. Woerderhoff, how did you arrive at the figure of $21,-476.10 accounts" } ]

[ { "docid": "5860306", "title": "", "text": "in liabilities, which he failed to disclose on the financial statement. Even the Referee found that “the evidence is clear that the Bankrupt was fully aware of the debts which he did not disclose.” The only explanation offered by the bankrupt to excuse these omissions is that he thought these debts were immaterial for a $16,000.00 loan, verbally okayed, that he thought in terms of the “general realm” of business assets and liabilities and that both of the omitted loans were secured. But the bankrupt also failed to disclose on his financial statement that he had pledged substantial assets as collateral in order to secure the two loans totaling $150,-000.00. Indeed, the bankrupt’s own testimony is very confusing and inconsistent and varies materially as to his own assets and liabilities. On February 6, 1967, the bankrupt estimated that his liabilities approximated $210,000.00 and that his assets were $80,000.00. Yet he testified that he told Mr. Moon that the only assets he himself owned were 2,000 shares of Reichhold Chemical stock plus a “few shares of Texas Gulf Sulphur,” and that all the rest belonged to his wife. In fact, he did not even own the Reichhold Chemical stock free and clear, since this stock was subject to a margin call by Boettcher and Company for which the loan was made. Only 32 days after his loan at the First National Bank had been approved, the bankrupt filed a voluntary petition in bankruptcy showing assets of only $3,654.91 and liabilities totaling $237,574.27. These numerous contradictions which appear throughout the bankrupt’s own testimony can but point to the one conclusion that he intentionally misrepresented his true financial status to the bank. This court has held that more than an erroneous financial statement is necessary for a statement to be considered “false.” It must be one that is intentionally false or one that is intended to deceive and must be relied upon. American National Bank of Denver v. Rainguet, 323 F.2d 881 (C.A. 10th Cir. 1963). After reviewing the evidence, we find that there is substantial evidence to support the district court’s finding" }, { "docid": "8105070", "title": "", "text": "oath that his Schedules and Statement of Affairs contained a true statement of his assets and liabilities. The referee found the five statements attacked by the objecting creditor to be false, but not made with intent to defraud. The District Court for the Southern District of New York, Irving Ben Cooper, D. J., on petition for review upheld the referee, and the objecting creditor appeals. We affirm. There is no question but that the omission of the bank account was an omission which would require denial of discharge if knowingly and fraudulently made. “The very purpose of the statement of affairs is to give dependable information without need of going further.” In re Tabibian, 289 F.2d 793, 796, 797 (2 Cir. 1961). The other statements, likewise made under oath and concededly incorrect would if made with the requisite knowledge and intent also require denial of discharge. The crucial question here is whether the requisite knowledge and intent existed. So far as the existence of the Manufacturers Trust personal loan was concerned, the referee credited the bankrupt’s testimony that he had forgotten the matter, the payments on which were made by his wife, until reminded of it by his wife some two weeks after the schedules had been filed, that he thereupon disclosed the omission to counsel, who advised that the only effect was not to extinguish the balance of the debt and that amendment was not necessary. This was corroborated by counsel. The referee credited Gross’ testimony that the omission of the Royal State Bank account was inadvertent, that the petition was prepared by counsel while the bankrupt was temporarily on training duty in the Army, while he was harassed by law suits and his wife distressed. He held that the statements that the schedules were true statements were not false because of the attorney’s advice. One difficulty with this is that the former existence of the Royal State Bank account had not been revealed by the bankrupt to counsel. The referee did, however, observe the demeanor of the bankrupt on the stand, where he promptly acknowledged discrepancies when called" }, { "docid": "22395709", "title": "", "text": "intention of hiding any debts from appellant. The record shows that appellant did not rely entirely on the appellee’s statements or the written documents. It reveals that appellant ran a credit clearance exchange search on appellee, but evidently used the wrong exchange. This supports appellee’s claim that he thought their own records and inquiries would disclose the AVCO transaction. Appellant’s representative did not deny appellee’s testimony that he did not list the Pico Rivera debt and other small bills because the representative told him that he did not need to. The representative just did not recall any conversation that he might have had with appellee with reference to other debts. Beyond that, appellee testified that appellant knew that “. . .1 had a loan with AVCO before. It was on their listing there.” Appellant’s witnesses testified that ap-pellee’s loan would never have been granted had he fully disclosed his liabilities, especially with regard to the AVCO security interest. In addition, appellant contended that it had no other way of knowing of appellee’s AVCO debt due to its being listed on an area credit clearance exchange different from their own. After a full evidentiary hearing, the referee found £hat the evidence did not sustain appellant’s burden of proving that appellee intended to deceive appellant in obtaining the loan. Accordingly, the debt to appellant was ordered discharged. ISSUES ON APPEAL I. Did the referee apply to the evidence the proper burden of proof? II. Did the referee err in finding that appellant failed to sustain its burden of proof? I. Section 17(a) of the Bankruptcy Act, 11 U.S.C. § 35(a), lists certain debts not affected by a discharge, including “(2) liabilities for obtaining money or property by false pretenses or false representations, or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his [bankrupt’s] financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive . . . [, 2] This section has traditionally been subject to" }, { "docid": "13104310", "title": "", "text": "OPINION THOMAS M. TWARDOWSKI, Bankruptcy Judge: The present proceedings concern the dis-chargeability of a certain debt founded on a loan allegedly made in reliance upon a false financial statement. In December, 1976, William and Mary Torneo, the bankrupts, applied for and obtained a loan from the plaintiff, HCC Consumer Discount Company (“HCC”), in the gross amount of $3,024, to be repaid in 36 monthly installments of $84 each. At the same time, the bankrupts gave HCC a security interest in their household goods (primarily furniture) which were valued by Mr. Torneo at $5,000. HCC duly perfected its security interest by filing a financing statement in the appropriate place on January 14, 1977. The bankrupts made only one payment on the loan before filing voluntary petitions in bankruptcy on April 15, 1977. In the bankrupts’ Schedule B-2 (personal property), the value of the same household items which are the subject of HCC’s security interest was listed as $600. N.T. at 4. On August 31,1977, HCC filed a complaint objecting to the discharge of the debt owed it by the bankrupts. The complaint alleges that in filling out the schedule of property in connection with the loan application, the bankrupt falsely stated the value of his household goods and that therefore the debt is nondischargeable by virtue of § 17a(2) of the Bankruptcy Act (11 U.S.C. § 35(a)(2), which provides, in pertinent part: a. A discharge in bankruptcy shall release a bankrupt from all of his provable debts, . except such as . (2) are liabilities . for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive In order to succeed on a § 17a(2) objection, the plaintiff must prove (1) that the bankrupt made the representations; (2) that the representations, when made, were materially false; (3) that he made them with the intention and purpose of deceiving the creditor; (4) that the creditor relied on" }, { "docid": "3100939", "title": "", "text": "view, it was a reasonable thing to do, to state the values on the net basis as he did ... even though an accountant might have ... done it somewhat differently.” The court concluded that under the circumstances, Dr. Miller “had some reasonable basis for what were the assets,” and “some reasonable basis to determine the values that were attached to them.” In rejecting a finding of intent to deceive, the court attached particular significance to the fact that Dr. Miller had “used substantial amounts of his own exempt assets to attempt to salvage the ... businesses which, of course, is directly contrary to one who would have an intent to deceive.” The district court reversed, holding that it was clearly erroneous for the bankruptcy court to fail to infer intent to deceive from the Millers’ omission of the promissory notes from their financial statements. The district court did not cite specifically to any evidence in the record, but merely noted that given Dr. Miller’s “extensive business background” there was a strong inference of his intent to deceive. As to Janet Miller, the district court held that given her co-signature of the loans, “she may not avoid responsibility as a spouse simply because she may not have been a knowing participant in the misrepresentations.” The bankruptcy court’s finding that the Millers lacked an intent to deceive was not clearly erroneous. It is plausible that the Millers’ financial estimates, though perhaps careless or presumptuous, were made without dishonest intent. As the bankruptcy court recognized, Dr. Miller offered reasons for each substantial contested entry and omission. As to the failure to list the promissory notes, for instance, Dr. Miller testified that although he had not listed them individually, he generally — albeit not precisely — had included the debts into the dealerships’ “net value.” That Dr. Miller wrote the word “NET” in capital letters on the financial statements, underneath his estimates, supports his testimony that he attempted to “net” his businesses’ values. So, too, does the fact that he left blank the spaces titled “amount mortgage or lien.” Further, as Miller pointed" }, { "docid": "8313503", "title": "", "text": "was made. In answer to the question on the financial statement as to real estate owned by the bankrupt, he listed property having a value of $7,500, subject to a mortgage of $3,000, the title to which was in the name of “A. M. Stine.” The bankrupt listed but one creditor, Bayne Construction Company, $475, for labor and material. The real estate listed in the financial statement was not in the name of “A. M. Stine,” but was in the joint names of bankrupt and his wife, Rose Stine. Debtor’s voluntary petition in bankruptcy was filed April 12, 1944. It listed unsecured creditors in the total sum of $11,819. The Referee found that the failure of the bankrupt to include his wife’s name as owner of the real estate in filling in the financial statement was not done with intention to mislead the Trust Company, and that the Trust Company did not rely upon the statement in making the loan to the bankrupt, but that the bankrupt did omit from his financial statement certain indebtedness and that the financial statement so made by the bankrupt was knowingly false and did induce the Tower Grove Trust Company to extend credit. We have read the record in this case, and we are unable to conclude that the findings of the Referee are erroneous and unless such be the case, findings should be sustained. In re Garmann et al., D.C., 18 F.2d 155. The record in this case not only sustains the findings of the Referee that the bankrupt omitted from the financial statement presented to the Trust Company a statement of the indebtedness owed by him to Wayne County, Michigan, but we think the record would sustain the finding that the bankrupt omitted to list certain other items of indebtedness owed by him on October 20, 1943. The objector introduced the financial statement signed by the bankrupt and the schedules which were signed by the bankrupt and are admissible against him. In re Margolis, D.C., 23 F.Supp. 735. These schedules, filed April 12, 1944, list twenty-four creditors (Schedule A-3) as holding unsecured" }, { "docid": "12750159", "title": "", "text": "report to see if bankrupts were making money, that he wanted to know if the business was paying, that he knew the financial condition of the bankrupts.” (Finding of Fact, No. 8.) Thereafter the bankrupts submitted to the creditor monthly statements commencing with one dated March 31, 1940, which reviewed the financial condition of the business for the preceding three months and ending with one for the month of July, 1940. In none of these did the indebtednesses to relatives appear either under the “Liabilities” column or in the “Net Worth” statement. Meanwhile, the creditor had shipped merchandise on credit to the bankrupts, the first shipment being after March 1, 1940. In his final finding the referee states that “It is inferred * * * that bankrupts obtained the goods shipped after April 10, 1940 * * * on credit by making and publishing materially false statements in writing respecting their financial condition.” The ultimate facts required to make § 14, sub. c(3) operative must be inferred in most instances by the trier from objective facts found since they involve a conclusion as to the state of mind of the maker of a representation. Unless “clearly erroneous” the conclusion is not to be set aside by a court on appeal. In this case, the ultimate finding, admittedly an inference, was precluded by the other findings of fact and is clearly erroneous. In order for a court to deny a discharge under § 14, sub. c(3) to a bankrupt, it must find that the statement made or published was “false.” In this use of the word, “ 'false’ means more than erroneous or untrue and imports an intention to deceive, * * 1 Collier on Bankruptcy, 14th Ed. 1940, § 14.40. If the statement is neither erroneous nor untrue, there is obviously no need for further inquiry for § 14, sub. c(3), by definition, is inapplicable. That is the case here. It is clear from Findings of Fact, numbered 7 and 8, made by the referee, that the creditor knew of the two debts owed by the bankrupts to their relatives." }, { "docid": "23257204", "title": "", "text": "establish a prima facie case, the objecting creditor, under the proviso to Section 14, sub. c, is required to “show to the satisfaction of the court that there are reasonable grounds for believing” that the above three factors are present. Once this is done, the bankrupt has the burden of proving facts which remove the case from the bar of the Act. In re Schwartz, 2 Cir., 135 F.2d 362, In re Di Palo, 2 Cir., 1955, 218 F.2d 816. We agree with the appellant that the evidence received at the hearing on discharge amply proved that in addition to the only debt disclosed on his financial statement concededly given, the bankrupt was also indebted at least to one Benson in a substantial amount. The indebtedness was evidenced by a promissory note for $700 given to the creditor Benson only a few months before making his statement to the Bank and in the intervening period several payments had been made on the note. It may well be that the bankrupt thought that because of the nature of past relations between Benson and the bankrupt's family, Benson would not enforce his note. But if so, that consideration was not enough to save his statement from classification as one which was falsely made. 1 Collier on Bankruptcy, p. 1357. The Referee’s finding that at least for its omission of the Benson debt the statement was materially false, was amply proved. In re Smith, D.C.N.Y., 232 F. 248, In re Gregor, D.C.E.D.N.Y., 50 F.Supp. 918, Cohn v. Arkin, 2 Cir., 132 F.2d 724. It only remains to determine whether the objecting creditor sufficiently proved, prima facie, that it made the loan or extended credit in reliance on the statement. As to this, the loan officer of the Bank testified that in making the loan the Bank did indeed rely on the statement. The Referee, we think, did not exceed his powers as a factfinder in withholding credit from this conclusionary testimony. However, reliance on a financial statement need not be proved by direct testimony. Ordinarily it may be proved by evidence showing that" }, { "docid": "22395710", "title": "", "text": "to its being listed on an area credit clearance exchange different from their own. After a full evidentiary hearing, the referee found £hat the evidence did not sustain appellant’s burden of proving that appellee intended to deceive appellant in obtaining the loan. Accordingly, the debt to appellant was ordered discharged. ISSUES ON APPEAL I. Did the referee apply to the evidence the proper burden of proof? II. Did the referee err in finding that appellant failed to sustain its burden of proof? I. Section 17(a) of the Bankruptcy Act, 11 U.S.C. § 35(a), lists certain debts not affected by a discharge, including “(2) liabilities for obtaining money or property by false pretenses or false representations, or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his [bankrupt’s] financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive . . . [, 2] This section has traditionally been subject to the same rule of strict, literal construction governing all other exceptions to the Bankruptcy Act. Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717 (1915). Courts have consistently held that in order for § 17(a)(2) to bar a discharge, the party alleging fraud must prove actual or positive fraud, not merely fraud implied by law. In re Dolnick, 374 F.Supp. 84, 90 (N.D. 111.1974); In re Adams, 368 F.Supp. 80 (D.S.D.1973); United States v. Syros, 254 F.Supp. 195, 198 (E.D.Mo.1966); 1A Collier on Bankruptcy § 17. (S). This fraud is the type involving moral turpitude or intentional wrong, and thus there can be no mere imputation of bad faith. According to Sweet v. Ritter Finance Co., 263 F.Supp. 540, 543 (W.D.Va. 1967), the objecting party’s burden of proof consists of five elements: “. . . (1) the debtor made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the creditor; (4) that the creditor relied on such" }, { "docid": "23575345", "title": "", "text": "MEMORANDUM OPINION AND ORDER BAUER, District Judge. This cause comes on the Referee’s certification for review of the Referee’s Order in which petitioner’s application to determine the dischargeability of the debt due petitioners from the bankrupt was denied and which also discharged the bankrupt from that debt. On March 30, 1971, the petitioners, the Bank of Ravenswood, a creditor of Alvin Dolnick, the bankrupt, filed its “Specification of Objections to Discharge” which contained, inter alia, the following allegations: 1. On or about January 6, 1970, for the purpose of obtaining money upon credit from the Bank of Ravenswood, the bankrupt made a . statement, in writing, to the said Bank of Ravenswood, respecting his financial condition, which statement was made with the intent to deceive the Bank of Ravenswood, and which written statement was materially false in several matters. 2. That statement in writing materially set forth that said bankrupt, upon January 6, 1970, owned assets in the total amount of $438,000.00 and which consisted of cash on hand and in banks, $2,000.00; United States Government Securities, $3,000.00; Unlisted Securities, $390,000.00; Real Estate owned, $40,000.00; and Automobiles and other Personal Property, $3,000.00 and that his liabilities consisted of notes payable to banks-seeured, $110,000.00; Real Estate Mortgages payable $18,000.00; or total liabilities of $128,000.00 and that he had a net worth of $310,000.00. By virtue of this statement, the bankrupt obtained from the Bank of Ravenswood the sum of $50,000.00 on credit. In truth and in fact, at the time that statement in writing was made for the purpose of obtaining money on credit, the bankrupt did not owe merely $128,000.-00 nor substantially that amount but owed grossly in excess of that amount. 3. Schedule A-2 of bankrupt’s Petition reveals that at or about the time bankrupt executed that statement in writing, the bankrupt was indebted to the Exchange National Bank of Chicago in the amount of $125,000.00. More specifically, the bankrupt was indebted to said Exchange National Bank of Chicago in the amount of $82,500.00 on January 5, 1970 which indebtedness does not appear on the statement in writing delivered" }, { "docid": "5947432", "title": "", "text": "inferring that defendant knew that credit would not be extended but for the misrepresentation. The record is totally bare of any such evidence.... That being the case, we cannot conclude that it would be clearly inequitable to grant an attorney’s fee to debtors. It is not uncommon that intent to deceive must be established by circumstantial evidence and by way of inference. Here, the debtor-appellees listed debts in the amount of $3,189, representing debts owed to approximately six creditors, on the financial statement. The debts that were not listed, which led to the filing of the false financial statement proceeding to determine dischargeability, were approximately $2,000 owed to Good Samaritan Hospital for two different occasions and to other creditors in the medical field; a sum “which in this case represents about one-half of the indebtedness” involved. The debtor also testified that he was aware of the substantial debt owed to the hospital. Specifically, he testified that he had received notification of the debt from a collection agency and had regularly received duns and demands for payment on the accounts owed to the hospital that were not disclosed on the financial statement. These are very strong circumstances indicating an intent to deceive. Furthermore, appellant testified that the loan to appellees would not have been made if these debts had been listed in the financial statement. The effect of the omission is exactly the same as if the Carmens had admitted an intent to deceive appellee. This evidence clearly shows that the record was not “totally bare” of evidence on the intent to deceive element of 11 U.S.C. § 523(d), but rather showed substantial circumstantial evidence of such intent. I would infer from the record that the debtor at the very least intended to obtain an advantage which he could not otherwise have obtained if he had set out the truth in the financial statement. The bankruptcy court, in its comments on appellee’s motion for attorney’s fees, explicitly recognized the difficult problem of proving intent to deceive: I find myself wondering just ... what a plaintiff must show in order to comply" }, { "docid": "12750160", "title": "", "text": "facts found since they involve a conclusion as to the state of mind of the maker of a representation. Unless “clearly erroneous” the conclusion is not to be set aside by a court on appeal. In this case, the ultimate finding, admittedly an inference, was precluded by the other findings of fact and is clearly erroneous. In order for a court to deny a discharge under § 14, sub. c(3) to a bankrupt, it must find that the statement made or published was “false.” In this use of the word, “ 'false’ means more than erroneous or untrue and imports an intention to deceive, * * 1 Collier on Bankruptcy, 14th Ed. 1940, § 14.40. If the statement is neither erroneous nor untrue, there is obviously no need for further inquiry for § 14, sub. c(3), by definition, is inapplicable. That is the case here. It is clear from Findings of Fact, numbered 7 and 8, made by the referee, that the creditor knew of the two debts owed by the bankrupts to their relatives. It is equally clear from these findings that the creditor expressly arranged with the bankrupts that the monthly statements were not to include these debts but were to list merchandise creditors only. This arrangement the bankrupts followed. In the absence of any evidence showing a revocation of the agreement, it cannot be said that a statement which complied with it was either erroneous or untrue as to the creditor requesting it. The only possible justification for the referee’s conclusion is his thesis that since the financial statements furnished after the visit of the creditor manager on February 20, 1940 omitted the two debts in the statement of liabilities and net worth, the creditor could believe the debts had been extinguished. In this respect, the referee, although conceding that there was no testimony to substantiate this hypothesis, maintained that there was “No good reason for omitting the debts to relatives from the monthly showing of net worth. * * * ” But, the referee’s own findings of fact, already shown, establish beyond doubt that the arrangement" }, { "docid": "8105071", "title": "", "text": "bankrupt’s testimony that he had forgotten the matter, the payments on which were made by his wife, until reminded of it by his wife some two weeks after the schedules had been filed, that he thereupon disclosed the omission to counsel, who advised that the only effect was not to extinguish the balance of the debt and that amendment was not necessary. This was corroborated by counsel. The referee credited Gross’ testimony that the omission of the Royal State Bank account was inadvertent, that the petition was prepared by counsel while the bankrupt was temporarily on training duty in the Army, while he was harassed by law suits and his wife distressed. He held that the statements that the schedules were true statements were not false because of the attorney’s advice. One difficulty with this is that the former existence of the Royal State Bank account had not been revealed by the bankrupt to counsel. The referee did, however, observe the demeanor of the bankrupt on the stand, where he promptly acknowledged discrepancies when called to his attention. Moreover, any fraudulent motive for omission of the relatively small Manufacturers Trust transaction, and the Royal State account is not readily apparent in view of the familiarity of Avallone and Kanon, Gross’ creditors and former attorneys with the mechanics of his financing of the stock purchase, and in Kanon’s case of the Manufacturers Trust loan’s purpose. Compare Thompson v. Eck, 149 F.2d 631 (2 Cir. 1945). With due regard for the value of demeanor testimony in weighing good faith, we cannot say that the referee was “clearly erroneous” in finding a lack of intent to defraud in Gross’ various omissions and misstatements. Order affirmed." }, { "docid": "19875475", "title": "", "text": "MAHONEY, Circuit Judge. On August 29, 1941, Charles K. Ellithorpe filed a voluntary petition in bankruptcy; was adjudged a bankrupt and the matter was referred to a referee for further proceedings. On November 18, 1941, Charles H. Watts et ah, Trustees, doing business as Personal Finance Company of Springfield, Massachusetts, petitioned the referee to examine the facts and circumstances under which the debt of $280 owed by the bankrupt to the Finance Company and listed in his schedules arose and for an order holding the debt not discharge-able. The following facts are alleged in the petition: The bankrupt on October 1, 1940, executed a promissory note signed by him and his wife in return for a loan from the Finance 'Company of $280. Before the loan had been granted he made and delivered to the Finance Company a statement in writing showing that on October 1, 1940, his complete financial liabilities totaled $108. The schedules and amendment to the schedules which were signed by him and filed with his petition showed that on the 1st day of October, 1940, he owed sums in excess of $472.25. The financial statement was made by him for the purpose of obtaining money or an extension of credit from the Finance Company and was accepted and relied upon by that company as a true statement of his financial condition in making the loan to him. Had the Finance Company known the true facts it would not have made the loan to the bankrupt. The financial statement was materially false and the bankrupt obtained-money or property on credit through false representations. The referee refused to pass upon the question of the dischargeability of the debt, and the matter then came before the district court. The district court had before it the petition filed with the referee and in addition an affidavit of the Assistant Manager of the Finance Company who made the loan to the bankrupt. The affidavit stated that in the light of the financial statement submitted by the bankrupt, the loan was a good risk but if his true financial condition showing his" }, { "docid": "4621701", "title": "", "text": "HARRY E. WATKINS, District Judge. Personal Finance Company, a creditor, objected to bankrupt’s petition for discharge. It is charged that the bankrupt obtained an extension or renewal of credit from the objecting creditor by making a materially false statement' in writing respecting his financial condition. Bankruptcy Act, Sec. 14, sub. b (3), as amended, 11 U.S.C.A. § 32, sub. b (3). The matter was referred to referee as special master. The special master has made a report in which he has made specific findings of fact and recommends that the discharge be denied. Exceptions to this report have been filed by the bankrupt. There is no dispute in the evidence that before executing an extension or renewal of his loan, the objecting creditor required him to sign a written financial statement, disclosing, among other things, his total indebtedness, exclusive of the amount owed to objecting creditor. The evidence also shows, without contradiction, that the written financial statement which bankrupt signed, and to which he made oath, placed such indebtedness at $107, all owing to one creditor; whereas bankrupt then knew that he owed seventeen creditors, aggregating $1,041.34. The conflict in the testimony relates to the circumstances under which such statement was made. Bankrupt says: (1) that the statement was not false because he did not understand it; (2) that he did not intend to deceive; and (3) that the creditor did not rely upon the statement in granting the extension of credit. Bankrupt had done business with this small loan company for more than ten years. Within two years previous to bankruptcy, he had obtained five loans, or extensions of credit. In two instances the loans were paid. In two other instances, after he had paid a small amount on the loans, he applied for renewals, and the loans were again increased to the limit of $300 permitted under the West Virginia Small Loan Act. Acts 1933, c. 13. On each of these previous occasions financial statements were given by bankrupt but these records have since been destroyed by the finance company. On November 30, 1937, the bankrupt owed the" }, { "docid": "14124870", "title": "", "text": "proof of fraudulent intent the objection is not good. The referee found that there was no intent to defraud. The next objection goes to the sufficiency of the bankrupt’s books. Under § 14, sub. c(2) of the Bankruptcy Act, 11 U.S.C. § 32, sub. c(2), discharge will be denied if the bankrupt has failed to keep books “from which his financial condition and business transactions might be ascertained, unless the court deems such * * * failure [to keep books] to have been justified under all the circumstances of the case.” The referee found that the books kept were sufficient. The final objection is that the bankrupt obtained money and credit from the bank by use of false financial statements. The word “false” means more than an incorrect statement. The statement must be made with actual knowledge of falsity or with reckless indifference to the actual facts and be relied upon in the extension of credit. The referee found that the questioned statements were submitted to the bank without intent to deceive or mislead and that the bank did not rely thereon in extending credit. No good purpose would be served by detailing the facts. We recognize the rule that when a prima facie case has been made by one objecting to a discharge, the burden shifts to the bankrupt to clear himself of the charge so made. The bankrupt was examined at length and gave his versions of the pertinent transactions. Substantial evidence supports the referee’s findings that the omissions from the schedules were not fraudulent, that the books were sufficient, and that the financial statements were not intended to deceive and'were not relied upon in the extension of credit. We are concerned with whether the findings of the referee were clearly erroneous. After reviewing the record the district court upheld the referee. From our review of the entire record we reach the same conclusion. Affirmed. . 1 Collier on Bankruptcy jf 14.23, pp. 1327-1328. . See § 14, sub. c(3) of the Bankruptcy Act, 11 U.S.C. § 32, sub. e(3). . Industrial Bank of Commerce v. Bissell, 2" }, { "docid": "8984847", "title": "", "text": "in the first meeting of creditors held on July 31, 1940, and such record is not an exhibit in this proceeding. Nevertheless the referee dismissed this specification. On the other hand, the decision of the referee of April 10, 1942 on which this petition to review is based, recites that he sustains each and every objection contained in the objecting creditor’s specifications. Apparently then, the referee must have re-considered his rulings in respect to specifications 1 and 2. He seems well advised to have done so for the books and records referred to were not produced in open court, and certainly the bankrupt cannot shift the burden with respect to the production of such books. Failure to keep personal books of account from which his financial condition could be ascertained would in itself be no ground of objection to discharge if the nature of his business did not require the keeping of such records, or indeed, if he were able, with independent records of corporations with which he was associated, or otherwise, to supplement the data disclosed in his informal records of financial transactions. Certainly, however, the burden is upon him to show that, from all available data however informal, his financial condition could be ascertained. See In re Herzog, 2 Cir., 121 F.2d 581; In re Muss, 2 Cir., 100 F.2d 395; and particularly White v. Schoenfeld, 2 Cir., 117 F.2d 131, in respect to the burden of proof. The final assignment of error is: The failure to schedule the Modern Industrial Bank as creditor was shown, without challenge, to have been due to an oversight on the part of a stenographer and no material omission from a statement of affairs was shown. The unintentional and inadvertent omission is insufficient to bar the petitioner’s right to a discharge. This assignment relates only to subdivision (a) of specification 3. The attorney for the bankrupt testified that the bankrupt furnished him with data which included reference to the Modern Industrial Bank as a creditor, but that in the preparation of the final form of the schedules the listing of the debt" }, { "docid": "13918323", "title": "", "text": "OPINION OF THE COURT GANEY, Circuit Judge. This case involves a bankrupt’s appeal from an order of the District Court denying his petition for review of an order of the referee. In the statement of all the property of the bankrupt accompanying his voluntary petition in bankruptcy, Laurence Semel, Esquire, licensed to practice law in New Jersey, stated that no debts were due him on open account, but that an amount estimated at $100 is due him for “Possible claims for professional services rendered, damages, possible contingent fees on legal matters heretofore handled, costs and disbursements advanced for clients.” At the first meeting of creditors, held twenty days after the petition was filed, the bankrupt, who acted as his own counsel, testified that many people owed him money, probably in excess of a quarter of a million dollars. When asked why he did not list that amount in the schedules, he replied that the sum represented miscellaneous claims for prior legal services and monies that he loaned to a number of people over the past thirty-eight years. And in response to the question why he did not list the names of these people in his schedules, he stated that the $100 item covered those amounts. At a Section 21a hearing (11 U.S.C.A. § 44(a)), held twenty-eight days later, the bankrupt gave as his reason for writing “None” under the heading “Debts due petitioner on open account”, his belief that the amounts, estimated by him at more than a quarter of a million dollars, owed him had no value to the bankrupt’s estate. He also said that he did not have a list of the names, but that he had files going back for many years. When the attorney for the trustee advised him that he was going to ask him to make a list of the people who owed him that money, the bankrupt said that he would refuse because it was not his duty to do so. The referee then orally directed him to furnish a list. The following day the referee issued a written order. The order, after" }, { "docid": "12389585", "title": "", "text": "was made by the bankrupt and relied upon by the objector, the burden of proving the opposite is shifted to the bankrupt. Industrial Bank of Commerce v. Bissell, 219 F.2d 624 (2d Cir. 1955). Upon these crucial issues there was a divergence of testimony, which is the basis for the bankrupt’s attack upon the Referee’s determinations. The bankrupt testified that on a date following the loan committee meeting he telephoned Walter Tindle, an officer Of the Bank, concerning his difficulty in filling out the financial statement, and that Tindle told him “Never mind, skip it”, and that accordingly this act “was an evidence of good faith on the part of Mr. Newman and myself and that the bank wasn’t dependent on this to be accurate.” He also maintained that there was no intent on his part to deceive the Bank by the issuance of the financial statement because at the time he was not aware of the contingent liability to Refined, and further, that the omission of the contingent liability from the financial statement did not render it materially false. The Referee found that the financial statement was delivered to the Bank on September 7, 1965; that the alleged conversation with Walter Tindle never took place; that the testimony of Bebar that he had forgotten the contingent liability was incredible, and that the omission of the contingent liability did render the statement materially false. Since the issues before this court exclusively involve factual determi nations and since we cannot overturn the Referee’s decision unless we conclude that his findings are “clearly erroneous” (In re Hygrade Envelope Corp., 366 F.2d 584 (2d Cir. 1966); In re Savarese, 56 F.Supp. 927 (E.D.N.Y.1944)), we must turn to an examination of these findings. Bank’s Reliance The Referee’s finding that the Bebar financial statement was considered and relied upon by the Bank’s loan committee at the September 8th meeting is supported by the testimony of Arthur F. Thompson, an officer of the Bank, who stated that the financial statements of the principals were discussed and considered. This is consistent with the fact that the statement" }, { "docid": "5860305", "title": "", "text": "be excused from keeping and preserving books of account or records under § 14, sub. c(2).” Id. at 914. The Referee found that the financial statement was not materially false even though the bankrupt was fully aware that he had omitted over $150,000.00 liabilities to two other banks. The district court reversed such finding as clearly erroneous. We agree with the court that the financial statement was materially false. The bankrupt submitted to the bank a misleading financial statement in order to get an unsecured short-term loan of $16,000.00 from the bank on February 6, 1967. But only 3 days prior, on February 3, the bankrupt had acquired liabilities of $150,000.00 which he failed to list. The financial statement also failed to show that most of the assets on this financial statement belonged to his wife, and actually at the time of the loan he was insolvent with debts of $210,000.00 and assets of $80,000.00. From the bankrupt’s own testimony it is clear that he was fully aware of the two secured-note obligations of $150,-000.00 in liabilities, which he failed to disclose on the financial statement. Even the Referee found that “the evidence is clear that the Bankrupt was fully aware of the debts which he did not disclose.” The only explanation offered by the bankrupt to excuse these omissions is that he thought these debts were immaterial for a $16,000.00 loan, verbally okayed, that he thought in terms of the “general realm” of business assets and liabilities and that both of the omitted loans were secured. But the bankrupt also failed to disclose on his financial statement that he had pledged substantial assets as collateral in order to secure the two loans totaling $150,-000.00. Indeed, the bankrupt’s own testimony is very confusing and inconsistent and varies materially as to his own assets and liabilities. On February 6, 1967, the bankrupt estimated that his liabilities approximated $210,000.00 and that his assets were $80,000.00. Yet he testified that he told Mr. Moon that the only assets he himself owned were 2,000 shares of Reichhold Chemical stock plus a “few shares of" } ]

[ { "docid": "22783154", "title": "", "text": "harmless violation of a statute or regulation on the part of the government.”). To establish prejudice, a protester is not required to show that but for the alleged error, the protester would have been awarded the contract. See, e.g., In re Management Healthcare Prods. & Servs., B-251503.2, 93-2 Comptroller Gen.’s Procurement Decisions (Federal Publications Inc.) ¶ 320, at 4 (Dec. 15, 1993) (“To establish prejudice, an offeror is not required to prove that it would have received the award but for the agency’s improper action____”); In re Manekin Corp., B-249040, 92-2 Comptroller Gen.’s Procurement Decisions (Federal Publications Inc.) ¶250, at 5 (Oct. 19, 1992) (same). Such a rule would make it virtually impossible for a protester ever to prevail, no matter how egregious the error in the procurement process. On the other hand, a showing of a mere possibility that the protester would have received the contract but for the error is inadequate to show prejudice. If that were sufficient, the requirement of prejudice would be virtually eliminated. The proper standard lies between these polarities. There have been variations in the verbal formulation of what is necessary to show prejudice. See CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1574-75 (Fed.Cir.1983) (finding that to satisfy the minimum requirements for standing to sue, a disappointed bidder must show that “‘there was a substantial chance that [it] would receive an award — that it was within the zone of active consideration’ ”) (quoting Morgan Business Assocs., Inc. v. United States, 223 Ct.Cl. 325, 619 F.2d 892, 896 (1980)); see also TRW Envtl. Safety Sys., Inc., 18 Cl.Ct. at 69 (finding that procurement defects adversely affected plaintiffs chances of selection and therefore that it had established prejudice); TRW Inc., GSBCA No. 11309-P, 92-1 B.C.A. (CCH) ¶ 24,389, at 121,789, 1991 WL 175673 (Aug. 29, 1991) (holding that government’s regulatory violation “does not itself necessarily entitle a protester to relief. In such situations, the Board must review the conduct of the procurement with heightened scrutiny to determine if the improper taint had any actual adverse effect on the procurement process.”); In re Diverco, Inc.," } ]

[ { "docid": "5506819", "title": "", "text": "regulations.’ ”). On the other hand, the court has found no statutory authority that immunizes a Contracting Officer’s NAICS Code selection from review under the Tucker Act, utilizing the APA standard of review. Accordingly, the court will exercise its Tucker Act jurisdiction in this case solely to review the Air Force CO’s selection of NA-ICS Code 811212 regarding Solicitation FA8773-04-R-0001. In doing so, the court actions are consistent with congressional rationale for amending the Tucker Act to extend bid protest jurisdiction based on an implied-in-fact contract, which in this case is with the Air Force, not the SBA. B. Red River Has Standing In This Case. 1. The “Substantial Chance” Standing Test Should Not Apply In A PreAward Bid Protest. The United States Court of Appeals for the Federal Circuit in bid protest cases requires that “because the question of prejudice goes directly to the question of standing, the prejudice issue must be reached before addressing the merits.” Information Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed.Cir.2003); see also National Fed’n of Fed. Employees v. Cheney, 883 F.2d 1038, 1053 (D.C.Cir.1989) (“Not every bidder in a solicitation may assert disappointed bidder standing, otherwise nuisance suits could handicap the procurement system.”). To establish prejudice, a plaintiff must show that “absent the error, ‘there was a substantial chance it would have received the contract award.’” Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed.Cir.2001) (quoting Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.1999)); see also Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996) (“To establish competitive prejudice, a protestor must demonstrate that but for the alleged error, there was a substantial chance that [it] would receive an award — that it was within the zone of active consideration.”) (citations omitted). All of these cases, however, address standing in a post-award context. See also Guilford Gravure, Inc. v. United States, 365 F.3d 1345, 1351, 2004 WL 876057, at *4 (Fed.Cir.2004) (post-award bid case); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1334 (Fed.Cir.2001) (same); Data General Corp. v." }, { "docid": "11143608", "title": "", "text": "is proven by establishing that the plaintiff had a substantial chance of receiving the contract, but for the alleged procurement error. Id. (citing Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.1999)). A protestor possessing a “substantial chance” of winning the contract has a “direct economic interest” in the procurement, and has standing before this court. See Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307-08 (Fed.Cir.2006) (citing Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369-70 (Fed.Cir.2002)). As the Federal Circuit has stated, “the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A) [ (2006), a standard used in the Administrative Procedure Act (APA) J: a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350-51 (Fed.Cir.2004) (citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed.Cir.2000)). Under this APA standard, a procurement decision may be set aside if it lacked a rational basis or if the agency’s decision-making involved a violation of regulation or procedure. Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001) (citations omitted). De minimis errors in the procurement process, however, do not justify relief. Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed.Cir.1996) (citing Andersen Consulting v. United States, 959 F.2d 929, 932-33, 935 (Fed.Cir.1992)). The bid protest plaintiff bears the burden of proving that a significant error marred the procurement in question. Id. (citing CACI Field Servs., Inc. v. United States, 854 F.2d 464, 466 (Fed.Cir.1988)). The court gives great deference to an agency’s technical evaluation of an offer- or’s proposal. “[TJeehnieal ratings ... involve discretionary determinations of procurement officials that a court will not second guess.” E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed.Cir.1996) (citations omitted); Omega World Travel, Inc. v. United States, 54 Fed.Cl. 570, 578 (2002) (“It is well settled that contracting officers are given broad discretion" }, { "docid": "17526177", "title": "", "text": "irregularity, no matter how small or immaterial, gives rise to the right to be compensated for the expense of undertaking the bidding process.” 854 F.2d at 466 (parentheses omitted). The term “prejudice” in the context of bid protests, has been confused in defining both standing and prejudice on the merits with the requirement that the protestor must show “some significant error in the procurement process, but also that there was a substantial chance it would have received the contract award.” Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996); see also Alfa Laval, 175 F.3d at 1367 (citing Statistica, 102 F.3d at 1581 and Data Gen., 78 F.3d at 1562). This formulation conflates the relative importance of the procurement error with the standing requirement set forth as early as 1983 in CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1574-75 (Fed.Cir. 1983). CACI-Fed had endorsed a substantial chance standard equated to being “within the zone of active consideration.” See id. (internal quotations omitted). Statistica defined “competitive prejudice” as a substantial chance of winning an award. 102 F.3d at 1581. Statistica was superseded in 2001 when the Federal Circuit in American Federation of Government Employees v. United States, 258 F.3d 1294, 1302 (Fed.Cir.2001) (“AFGE ”), adopted the standing requirement of the Competition in Contracting Act, 31 U.S.C. § 3551 enacted in 1984, to delineate the standing requirement to sue “as an interested party,” for injunctive relief under the 1996 ADRA. The holding from an opin ion, self-described as dealing with “standing,” deserves extended quotation: The term Congress did choose to define standing under § 1491(b), “interested party,” is a term that is used in another statute that applies to government contract disputes, the CICA. As set forth above, the CICA explicitly defines that terms as “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” 31 U.S.C. § 3551(2). Section 3551, by its own terms, applies only to contract disputes decided by the Comptroller General of the GAO pursuant to 31 U.S.C. §§ 3551-56." }, { "docid": "20483148", "title": "", "text": "it proceeds to determine, as a factual matter, if the bid protester was prejudiced by that conduct.” Bannum, 404 F.3d at 1351. In either case the plaintiff bears the “heavy burden” of proving this lack- of rational basis or violation of the law by a preponderance of the evidence. Domenico Garufi, 238 F.3d at 1333. If the agency action is determined either to violate an applicable procurement regulation, the court proceeds to address whether the action was significantly prejudicial to the protester. See Bannum, 404 F.3d at 1351, 1353; see also Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed.Cir.2009) (“When a challenge is brought on the second ground [of the Bannum test], the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.”). Even if a plaintiff can show that a procurement violation occurred, “[t]he prejudice determination assesses whether an adjudged violation of law warrants setting aside of a contract award.” Bannum, 404 F.3d at 1357. When making this evaluation, the court must be mindful that “[prejudice is a question of fact.” Bannum, 404 F.3d at 1353; Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057 (Fed.Cir.2000). “To establish prejudice, the claimant must show that there was a ‘substantial chance it would have received the contract award but for that error.’ ” Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1331 (Fed.Cir.2004) (quoting Statistica, Inc., 102 F.3d at 1582); see also Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.1999) (holding that in order to show prejudice, plaintiff need only show that it was within the zone of active consideration) (citing CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1574-75 (Fed.Cir.1983)). It is important to note that a plaintiff need not establish strict but-for causation in order to meet its burden of demonstrating that the agency’s procurement violation was prejudicial. See Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996). III. Standards of review for judgment on the administrative record and for in-junctive relief The parties filed cross-motions for judgment on the administrative record" }, { "docid": "21104818", "title": "", "text": "manufactured the exact purifier it proposed to supply, the evaluation panel granted West-falia extensions under the RFP, allowing it to meet several of the testing requirements with extrapolated data from\" other purifiers it has manufactured. The panel lacked “a set of measurements ... demonstrating [Westfalia’s] compliance with the solicitation’s Type II [vibration] testing requirements.” Alfa Laval, 40 Fed. Cl. at 232. The Navy nevertheless awarded the contract to Westfalia, and Alfa Laval filed a bid protest in the Court of Federal Claims, claiming that Westfalia’s proposal did not comply with the RFP’s mandatory requirements and market acceptability criteria. After a three-day trial on the merits, the Court of Federal Claims entered judgment in favor of the government and Westfalia. The court found that the Navy violated the applicable procurement statute and regulation by awarding the contract to Westfalia, because Westfalia’s proposal did not meet the Type II vibration testing requirement, but that the mistake was not sufficiently prejudicial to Alfa Laval to justify relief. Discussion Although we review legal conclusions of the Court of Federal Claims de novo, we disturb its factual findings only if they are “clearly erroneous.” See Alger v. United States, 741 F.2d 391, 393 (Fed.Cir.1984). To prevail in a bid protest, a protester must show a significant, prejudicial error in the procurement process. See Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996); Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996). “To establish prejudice, a protester is not required to show that but for the alleged error, the protester would have been awarded the contract.” Data General, 78 F.3d at 1562 (citation omitted). Rather, the protester must show “that there was a substantial chance it would have received the contract award but for that error.” Statistica, 102 F.3d at 1582; see CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1574-75 (Fed.Cir.1983) (to establish competitive prejudice, protester must demonstrate that but for the alleged error, “ ‘there was a substantial chance that [it] would receive an award — that it was within the zone of active consideration’ ” (citation omitted)). Westfalia and the government do" }, { "docid": "5506733", "title": "", "text": "plaintiff must show that “absent the error, ‘there was a substantial chance it would have received the contract award.’ ” Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed.Cir.2001) (quoting Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir. 1999)); see also Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996) (“To establish competitive prejudice, a protestor must demonstrate that but for the alleged error, there was a substantial chance that [it] would receive an award — that it was within the zone of active consideration.”) (citations omitted). As the revised proposals indicate, plaintiff was the third “offeror” with an acceptable technical rating and [] risk rating based on experience and past performance. See AR at 599. Although there was a[] difference between plaintiffs offer and Maximum Thunder’s offer, the Solicitation explained that: “The government may be willing to pay a higher price for evaluated superior Relevant Experience and/or Past Performance[.]” AR at 61. In addition, the CAP was advised that “American Marine ... compares to [plaintiff], the next offeror in line for an award, who was rated acceptable, with Very Low [E]xperience Risk, Very Low Performance Risk, and a Price of [].” AR at 596 (emphasis added). Therefore, by the Navy’s admission, plaintiff has established prejudice as the “next offeror in line for an award” with “a substantial chance” to receive one of the contracts. See Statistica, Inc., 102 F.3d at 1581. 2. Plaintiff Has Established That It Is An “Interested Party” In This Case. The protestor also must establish that it is “an interested party.” 28 U.S.C. § 1491(b)(1); cf. 31 U.S.C. § 3551(2) (for purposes of review by the GAO an “interested party [is] an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.”). A two-part test has been used to determine whether a protestor may be deemed an “interested party”: 1) the protestor must show a connection to the procurement; and 2) the protestor must have an economic interest in the procurement. See" }, { "docid": "5506821", "title": "", "text": "Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996) (same); C.A.C.I., Inc.-Fed. v. United States, 719 F.2d 1567, 1574-75 (Fed.Cir.1983) (same). Although the United States Court of Appeals for the Federal Circuit has not explicitly addressed the standard of review for a plaintiffs standing in a pre-award context, the court is persuaded that a plaintiff would not be required to establish that, but for the alleged error, “there was a substantial chance it would have received the contract award[.]” Alfa Laval, 175 F.3d at 1367. At the pre-award juncture, a plaintiff usually will not know who the other offerors are and may not know their bona fides. Indeed, if the plaintiff had knowledge of these facts, certainly a factual question of how that information was ascertained would raise an issue under the Sherman Act, 15 U.S.C. §§ 1 and perhaps the Procurement Integrity Act, 41 U.S.C. §§ 401-36, as well. Without at least some of this information, however, a plaintiff would have no idea whether its offer would be within the “zone of active consideration.” Statistica, 102 F.3d at 1581. Of course, a rule could be fashioned that would require a plaintiff to have prior comparable industry experience or experience as a government contractor, but such a rule would preclude a new entrant from being able to assert a bid protest. For these reasons, the court declines to require the plaintiff in this case to satisfy the “substantial chance” standing test pre-award, but rather will rely on the “interested party” test until the United States Court of Appeals for the Federal Circuit directs otherwise. 2. Red River Has Established That It Is An “Interested Party” In This Case. As a threshold matter, the Tucker Act specifically requires that a plaintiff must establish standing by being “an interested party.” 28 U.S.C. § 1491(b)(1); cf. 31 U.S.C. § 3551(2) (for purposes of review by the GAO an “interested party [is] an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.”). A two-part test has been used to determine" }, { "docid": "1919841", "title": "", "text": "229, 241 (1983). “In reviewing [plaintiffs] protest of the agency’s technical evaluation and decision to eliminate an offeror from the competitive range, we will not evaluate the proposal anew, but instead will examine the agency’s evaluation to ensure that it' was reasonable and in accord with the evaluation criteria listed in the solicitation.” Beneco Enterprises, Inc., 70 Comp. Gen. 574, 576 (1991); see Harris Data Communications, 2 Cl.Ct. at 241. In sum, the protestor must demonstrate significant, prejudicial error in the procurement process. See Statistica Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996). To establish prejudice, the protestor need not show that “but for the alleged error the protestor would have been awarded the contract.” Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996). “Rather, the protestor must show ‘that there was a substantial chance it would have received the contract award but for that error.’ ” Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365 (Fed.Cir.1999) (quoting Statistica, 102 F.3d at 1582). The Federal Circuit’s recent decision in Alfa Laval is instructive insofar as plaintiffs protest is based on State’s alleged failure to apply evenly a mandatory provision of the solicitation. In that case, the trial court determined, inter alia, that the agency awarded the contract to an offeror that had not complied with a mandatory solicitation provision. Although the provision had minor technical impact on the award, the court was constrained to find a clear violation of a mandatory procurement statute and regulation. However, the court pointed out that the Federal Circuit had adopted a de minim-is rule for bid protests under another bid protest statute, see Alfa Laval Separation, Inc. v. United States, 40 Fed.Cl. 215, 234 n. 23 (1998) (citing cases), which the appeals court could extend to the Tucker Act. Because the protestor’s prices vastly exceeded those of the awardee — and, indeed, were higher than those the agency earlier had rejected from the protestor — the trial court found that the violation did not effect a prejudice upon the protestor. In its reversal and remand, the Federal Circuit declined to adopt the" }, { "docid": "19164963", "title": "", "text": "to establish that, but for the alleged error, it would have won the contract. Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.1999). The “substantial chance of award” requirement is instead satisfied where, but for the government’s alleged error, the protestor would have been “within the zone of active consideration.” Allied Tech. Group, Inc. v. United States, 94 Fed.Cl. 16, 37 (2010), aff'd, 649 F.3d 1320 (Fed.Cir.2011). “In other words, the protestor’s chance of securing the award must not have been insubstantial.” Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed.Cir.2003). It is because PSS’s chance for award would not be insubstantial that the court is persuaded that the plaintiff has demonstrated that it has standing. Despite ranking fourth out of five offerors, PSS was in the competitive range, AR 1320-21, and therefore within the zone of active consideration. More importantly, if, as PSS alleges, it should have received at least two additional strengths and the Price evaluation of CWS were done properly, all of the agency’s ratings would need to be redone, and a new best value determination made. It is in this best value context that PSS has demonstrated that it would have had a substantial chance of receiving the award. See Info. Tech., 316 F.3d at 1319. Accordingly, the government’s and the defendant-intervenor’s motions to dismiss under RCFC 12(b)(1) are DENIED. b. Cross-Motions for Judgment on the Administrative Record i. Standard of Review In deciding bid protest cases, the court applies the standards of the Administrative Procedure Act, 5 U.S.C. § 706 (2012). See 28 U.S.C. § 1491(b)(4). A procurement decision must be upheld unless the court determines that the agency action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004). Under RCFC 52.1, the court makes factual findings “from the record evidence as if it were conducting a trial on the record.” Bannum,, Inc. v. United States, 404 F.3d 1346, 1357 (Fed.Cir.2005). This review is necessarily limited, as it is well" }, { "docid": "20348925", "title": "", "text": "then decide the factual question of whether the action was prejudicial to the bid protester. See Bannum, 404 F.3d at 1351-54. B. Was Tech Systems Potentially Prejudiced by the Challenged Actions? The issue of prejudice must first, however, be considered in the context of standing, before the Court may turn to the merits. See Info. Tech., 316 F.3d at 1319. In bid protests, prejudice “is a necessary element of standing,” and in all eases “standing is a threshold jurisdictional issue.” Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369-70 (Fed.Cir.2002); see also Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378-79 (Fed.Cir.2009). Under the ADRA, actions may be brought “by an interested party objecting ... to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). The Federal Circuit has construed the term “interested party” to have the same definition as under the Competition in Contracting Act, encompassing “actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” Am. Fed’n of Gov’t Employees, AFL-CIO v. United States, 258 F.3d 1294, 1302 (Fed.Cir.2001); see 31 U.S.C. § 3551(2). An offeror establishes an interest sufficient to support a post-award bid protest by showing that it would have had a substantial chance of receiving the contract award absent the alleged procurement errors. See Labatt, 577 F.3d at 1380; Info. Tech., 316 F.3d at 1319. This prejudice test for purposes of standing is the same as the test employed in the merits determination. See Labatt, 577 F.3d at 1378-80 (relying on, inter alia, the decisions on the merits in Bannum, 404 F.3d at 1354, 1358, and Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996)); Info. Tech., 316 F.3d at 1319 (relying on, inter alia, the merits decision in Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.1999)). But since, for purposes of standing, prejudice must be analyzed before" }, { "docid": "17526176", "title": "", "text": "of O-Tech, Mr. Palmer stated, “Absent a satisfactory explanation or waiving the PEA, I will need to forward this matter to the Small Business Administration.” Id. There was absolutely no evidence that the USCG engaged in any wrongful conduct. Once O-Tech chose to waive the PEA, O-Teeh has failed to prove that the USCG was under any obligation to continue to investigate O-Tech’s position. III. Prejudice as an overarching finding: Standing v. substantive prejudice Assuming that an applicable procurement regulation had been violated, analysis would next turn to whether the violation was prejudicial. See Bannum, 404 F.3d at 1351. The Federal Circuit originally restricted a showing of substantive prejudice to the requirement of showing a clear and prejudicial violation of a procurement statute or regulation. See CACI Field Services, Inc. v. United States, 854 F.2d 464 (Fed.Cir.1988). That decision quoted the standard for recovery of procurement costs in Keco Indus., Inc. v. United States, 203 Ct.Cl. 566, 492 F.2d 1200, 1203 (1974): “[I]f one thing is plain in this area it is that not every irregularity, no matter how small or immaterial, gives rise to the right to be compensated for the expense of undertaking the bidding process.” 854 F.2d at 466 (parentheses omitted). The term “prejudice” in the context of bid protests, has been confused in defining both standing and prejudice on the merits with the requirement that the protestor must show “some significant error in the procurement process, but also that there was a substantial chance it would have received the contract award.” Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996); see also Alfa Laval, 175 F.3d at 1367 (citing Statistica, 102 F.3d at 1581 and Data Gen., 78 F.3d at 1562). This formulation conflates the relative importance of the procurement error with the standing requirement set forth as early as 1983 in CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1574-75 (Fed.Cir. 1983). CACI-Fed had endorsed a substantial chance standard equated to being “within the zone of active consideration.” See id. (internal quotations omitted). Statistica defined “competitive prejudice” as a substantial chance of winning an award." }, { "docid": "5506732", "title": "", "text": "court has determined the interest of justice is best served by resolving parties’ respective motions for summary judgment on the administrative record. See RCFC 56.1. DISCUSSION A. Jurisdiction. The United States Court of Federal Claims has jurisdiction to review post-award bid protests, pursuant to the Tucker Act. See 28 U.S.C. § 1491 (b)(l)-(4), as amended by the Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320, § 12, 110 Stat. 3870, 3874-76 (1996). B. Issues Regarding Standing. 1. Plaintiff Has Established That It Has Been Prejudiced. The United States Court of Appeals for the Federal Circuit in bid protest cases requires that “because the question of prejudice goes directly to the question of standing, the prejudice issue must be reached before addressing the merits.” Information Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed.Cir. 2003); see also National Fed’n of Fed. Employees v. Cheney, 883 F.2d 1038, 1053 (D.C.Cir.1989) (“Not every bidder in a solicitation may assert disappointed bidder standing, otherwise nuisance suits could handicap the procurement system.”). To establish prejudice, a plaintiff must show that “absent the error, ‘there was a substantial chance it would have received the contract award.’ ” Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed.Cir.2001) (quoting Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir. 1999)); see also Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996) (“To establish competitive prejudice, a protestor must demonstrate that but for the alleged error, there was a substantial chance that [it] would receive an award — that it was within the zone of active consideration.”) (citations omitted). As the revised proposals indicate, plaintiff was the third “offeror” with an acceptable technical rating and [] risk rating based on experience and past performance. See AR at 599. Although there was a[] difference between plaintiffs offer and Maximum Thunder’s offer, the Solicitation explained that: “The government may be willing to pay a higher price for evaluated superior Relevant Experience and/or Past Performance[.]” AR at 61. In addition, the CAP was advised that “American Marine ... compares to [plaintiff], the next" }, { "docid": "5506820", "title": "", "text": "of Fed. Employees v. Cheney, 883 F.2d 1038, 1053 (D.C.Cir.1989) (“Not every bidder in a solicitation may assert disappointed bidder standing, otherwise nuisance suits could handicap the procurement system.”). To establish prejudice, a plaintiff must show that “absent the error, ‘there was a substantial chance it would have received the contract award.’” Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed.Cir.2001) (quoting Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.1999)); see also Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996) (“To establish competitive prejudice, a protestor must demonstrate that but for the alleged error, there was a substantial chance that [it] would receive an award — that it was within the zone of active consideration.”) (citations omitted). All of these cases, however, address standing in a post-award context. See also Guilford Gravure, Inc. v. United States, 365 F.3d 1345, 1351, 2004 WL 876057, at *4 (Fed.Cir.2004) (post-award bid case); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1334 (Fed.Cir.2001) (same); Data General Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996) (same); C.A.C.I., Inc.-Fed. v. United States, 719 F.2d 1567, 1574-75 (Fed.Cir.1983) (same). Although the United States Court of Appeals for the Federal Circuit has not explicitly addressed the standard of review for a plaintiffs standing in a pre-award context, the court is persuaded that a plaintiff would not be required to establish that, but for the alleged error, “there was a substantial chance it would have received the contract award[.]” Alfa Laval, 175 F.3d at 1367. At the pre-award juncture, a plaintiff usually will not know who the other offerors are and may not know their bona fides. Indeed, if the plaintiff had knowledge of these facts, certainly a factual question of how that information was ascertained would raise an issue under the Sherman Act, 15 U.S.C. §§ 1 and perhaps the Procurement Integrity Act, 41 U.S.C. §§ 401-36, as well. Without at least some of this information, however, a plaintiff would have no idea whether its offer would be within the “zone of active consideration.” Statistica, 102 F.3d" }, { "docid": "10826433", "title": "", "text": "Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004). Although “it is well-settled that procurement officials are entitled to broad discretion in the ... application of procurement regulations,” Metcalf Constr. Co. v. United States, 53 Fed.Cl. 617, 622 (2002), the court may set aside a procuring agency’s contract “if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure,” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001). The protester must show, by a preponderance of the evidence, that either ground justifies a set aside of the contract award. AmerisourceBergen Drug Corp. v. United States, 60 Fed.Cl. 30, 35 (2004); see also Gulf Group Inc. v. United States, 61 Fed.Cl. 338, 351 (2004) (articulating the preponderance of the evidence standard). Where, as here, “the challenge is brought on the second ground, the disappointed bidder must show ‘a clear and prejudicial violation of applicable statutes or regulations.’ ” Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1333 (quoting Kentron Haw., Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C.Cir.1973)); see also Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.Cir.2005) (holding that if the procuring agency’s decision was made in violation of the applicable statutes, regulations, or procedures, the court must then “determine, as a factual matter, if the bid protester was prejudiced by that conduct”); Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996) (stating that in addition to showing “a significant error in the procurement process,” a protester must show “that the error prejudiced it”). A protester must satisfy both requirements — significant and prejudicial error — in order to prevail. Bannum, Inc., 404 F.3d at 1351. “To establish prejudice ..., a protester must show that there was a ‘substantial chance’ it would have received the contract award absent the álleged error.” Banknote Corp. of Am., 365 F.3d at 1350 (quoting Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed.Cir.2001)); see also Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed.Cir.1996) (“[F]or [a protester] to prevail[,] it" }, { "docid": "5507030", "title": "", "text": "courts in the so-called Scanwell line of cases, referring to the 1970 case upholding district court APA review of Government procurement decisions. Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1331-32 (Fed.Cir.2001) (citing Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970), and explaining the history of judicial review of Government procurement decisions). Under the APA standard as applied in the Scanwell line of cases, and now in ADRA cases, “a bid award may be set aside if either (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Id. at 1332. When a challenge is brought on the first ground, the test is “whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a ‘heavy burden’ of showing that the award decision had no rational basis.” Id. at 1332-33 (citations omitted). “When a challenge is brought on the second ground, the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.” Id. at 1333. To establish prejudice under this second ground, a protester must show that there was a “substantial chance” it would have received the contract award absent the alleged error. Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed.Cir.2001); Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.1999). When the agency involved is the USPS, there is some question whether the above standard applies to its bid protests. This is because actions by the USPS are not normally subject to APA review. See 39 U.S.C. § 410(a); Emery, 264 F.3d at 1084. In Emery, we held that the Court of Federal Claims possesses jurisdiction over bid protest actions involving the USPS, id. at 1083-84, but we declined to decide whether 39 U.S.C. § 410(a) trumps the ADRA’s mandate to apply the APA standard of review. Id. at 1085. Neither party in that case contested the application of the APA standard; if we held that the Court of Federal Claims had jurisdiction over the" }, { "docid": "13185194", "title": "", "text": "The award to Sealift was based on relaxed standards not extended to Red River, in violation of the CICA. Red River prevailing under either or both asserted theories, however, does not end the court’s inquiry. Standing and prejudice Finding agency error does not sustain a protest. Standing is an element of this court’s bid protest jurisdiction. See Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307-08 (Fed.Cir.2006) (affirming dismissal for lack of subject matter jurisdiction because plaintiff was not an actual bidder and could not show prejudice — that it had a substantial chance of the award but for the error alleged). “[T]o prevail in a protest the protester must show not only a significant error in the procurement process, but also that the error prejudiced it.” Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996). To demonstrate prejudice, “the protester must show ‘that there was a substantial chance it would have received the contract award but for that error.’ ” Alfa Laval Separation, 175 F.3d at 1367 (quoting Statistica, Inc. v. Christopher, 102 F.3d 1577, 1582 (Fed.Cir.1996)); see Galen Med. Assocs., 369 F.3d at 1330 (clarifying that, in addition to significant error in procurement process, plaintiff must show that error was prejudicial) (citing Data Gen. Corp., 78 F.3d at 1562); Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed.Cir.2001); Info. Tech. & App. v. United States, 316 F.3d 1312, 1319 (Fed.Cir.2003) (“[T]he question of prejudice goes directly to the question of standing ... [and] ‘prejudice (or injury) is a necessary element of standing.’ ”) (quoting Myers, 275 F.3d at 1370). See also RhinoCorps, Ltd. v. United States, 87 Fed.Cl. 261, 272, n. 12 (2009) (analyzing these issues). The government asserts Red River lacks standing or is unable to establish prejudice because its proposal was lacking in several instances. As Red River aptly points out, however, the consequences of the government’s position would mean that an agency that improperly evaluates all proposals would be insulated from any review, a result recently rejected. See Dyonyx, L.P. v. United States, 83 Fed.Cl. 460 (2008) (“The Government originally" }, { "docid": "1919733", "title": "", "text": "actions is generally limited to the administrative record developed by the agency. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (“the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court\"). Given that the matters on which discovery was sought were addressed in the administrative record, no supplement to the administrative record is appropriate in this case. Cf. Cubic Applications, Inc. v. United States, 37 Fed.Cl. 339, 343 (1997). . The plaintiff, particularly in its final brief, makes much of the fact that the TEB had, after Garufi submitted its post-discussion revisions, prepared a list of ten questions to be asked in the event that Garufi remained in the competitive range. Garufi CR Memo at 3; AR at 2557-58. These additional comprehensive questions only serve to underscore the vast amount of information the TEB found lacking in Garufi's revised proposal. AR at 2557-58. . Plaintiff has also argued that recent federal circuit authority provides support for setting aside this procurement. Plaintiff's Motion for a Temporary Restraining Order filed June 28, 1999 (“Plaintiff’s TRO”) at 36 (citing Alfa Laval, 175 F.3d 1365 (Fed.Cir.1999)). The test used in Alfa Laval requires both that there be a significant error in the procurement and that there be a substantial chance that the protester would have received the award. Alfa Laval, 175 F.3d at 1367 (citing Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996); and Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996)). Plaintiff here meets neither requirement of Alfa Laval. First, we have found no error in the Navy’s conduct of the procurement. Second, as a matter of law, Garufi did not have a \"substantial chance” of receiving the award. The solicitation provided that \"[a] proposal must be rated at least 'acceptable' to be eligible for award.” AR at 1684. Because Garufi never submitted an acceptable proposal it did not have a “substantial chance” of receiving the award. See Statistica, 102 F.3d at 1581; Data Gen., 78 F.3d at 1562. Alfa Laval" }, { "docid": "19123951", "title": "", "text": "set aside if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Impresa, 238 F.3d at 1332. Challenges to decisions on the basis of a violation of a regulation or procedure “must show a clear and prejudicial violation of applicable statutes or regulations.” Impresa, 238 F.3d at 1333 (internal quotation and citation omitted). In order to prevail in a bid protest, a “protestor must show not only a significant error in the procurement process, but also that the error prejudiced [the protestor].” Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996); see also Alfa Laval Separation, Inc. v. United States (Alfa Laval), 175 F.3d 1365, 1367 (Fed.Cir.1999). If the court finds that there is no error, there is no prejudice and the government’s decisions must be left undisturbed. Alfa Laval, 175 F.3d at 1367 (requiring that a protestor establish “significant, prejudicial error” to prevail in a bid protest). The first step is to demonstrate error; to show that the agency acted in an arbitrary and capricious manner, without a rational basis or contrary to law. See Bannum, 404 F.3d at 1351. The next step is to determine whether the error was prejudicial. See id. “[B]ecause the question of prejudice goes directly to the question of standing, the prejudice issue must be reached before addressing the merits.” La-batt Food Serv. Inc. v. United States, 577 F.3d 1375, 1378 (Fed.Cir.2009) (quoting Info. Tech. & Applications Corp. v. United States (Info.Teck), 316 F.3d 1312, 1319 (Fed.Cir. 2003)). “Non-prejudicial errors in a bid process do not automatically invalidate a procurement.” Id. at 1380. The plaintiff must demonstrate both that an error occurred and that such error was prejudicial. Data General Corp., 78 F.3d at 1562. In the context of a post-award bid protest, “the plaintiff must demonstrate ‘substantial prejudice’ by showing that there was a ‘substantial chance’ it would have been awarded the contract but for the agency’s error.” Weeks Marine, Inc. v. United States (Weeks Marine I), 79 Fed. Cl. 22, 35 (2007) (internal citation omitted), aff'd in relevant" }, { "docid": "19349281", "title": "", "text": "unacceptable due to the exceptions it took to material terms and conditions of the RFQ, Allied cannot challenge DOJ’s determination that its quotation was non-compliant and that Monster’s quotation was acceptable. Id. at 27, 32. However, Defendant’s contention that standing is a function of a quotation’s acceptability misconstrues established case law. The Federal Circuit has made clear that the focus of a standing inquiry is whether an actual or prospective bidder had a “substantial chance” of receiving the award. Impresa, 238 F.3d at 1334. It is beyond dispute that Allied was an actual bidder in this ease. Indeed, the CO decided to evaluate the merits of Allied’s quotation— notwithstanding its alleged unacceptability— because “only one other competitor submitted a quote.” AR 1037. Thus, given the circumstances, the test is whether Allied has a direct economic interest in the resolution of the protest. Our Court has held that the prejudice requirement for standing is less stringent than that required for success on the merits. See Dyonyx, 83 Fed.Cl. at 465-66, n. 2. The prejudice requirement for standing is satisfied by a “nominal showing that a protestor ‘could compete for the contract.’ ” Id. (quoting Myers, 275 F.3d at 1370); see also Textron, Inc. v. United States, 74 Fed.Cl. 277, 284 (2006); Global Computer Enter., Inc. v. United States, 88 Fed.Cl. 350, 401 (2009) (“A prejudice determination for the purpose of evaluating standing is a ‘limited review’ that seeks ‘minimum requisite evidence necessary for plaintiff to demonstrate prejudice and therefore standing.’ ”) (citation omitted). Thus, a protestor has standing where it can demonstrate that absent the error, it would have had a substantial chance of receiving a contract award or would have been “within the zone of active consideration.” Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.1999) (citing CACI, Inc.-Federal v. United States, 719 F.2d 1567, 1574-75 (Fed.Cir.1983)); see also Info. Sci. Corp. v. United States, 73 Fed.Cl. 70, 94 (2006). The Federal Circuit has found that a protestor has standing where the protestor’s quotation would be next in line for selection if its protest were sustained. See" }, { "docid": "19349282", "title": "", "text": "standing is satisfied by a “nominal showing that a protestor ‘could compete for the contract.’ ” Id. (quoting Myers, 275 F.3d at 1370); see also Textron, Inc. v. United States, 74 Fed.Cl. 277, 284 (2006); Global Computer Enter., Inc. v. United States, 88 Fed.Cl. 350, 401 (2009) (“A prejudice determination for the purpose of evaluating standing is a ‘limited review’ that seeks ‘minimum requisite evidence necessary for plaintiff to demonstrate prejudice and therefore standing.’ ”) (citation omitted). Thus, a protestor has standing where it can demonstrate that absent the error, it would have had a substantial chance of receiving a contract award or would have been “within the zone of active consideration.” Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.1999) (citing CACI, Inc.-Federal v. United States, 719 F.2d 1567, 1574-75 (Fed.Cir.1983)); see also Info. Sci. Corp. v. United States, 73 Fed.Cl. 70, 94 (2006). The Federal Circuit has found that a protestor has standing where the protestor’s quotation would be next in line for selection if its protest were sustained. See Galen Med. Assoc., Inc., 369 F.3d at 1331 (holding that a disappointed bidder had standing to bring a bid protest, where it finished second to the contract awardee and thus had a substantial chance of receiving the award); Impresa, 238 F.3d at 1334 (“[I]f the [plaintiff’s] bid protest were allowed because of an arbitrary and capricious responsibility determination by the contracting officer, the government would be obligated to rebid the contract, and [plaintiff] could compete for the contract once again.”). Here, if the Court finds that Monster should have been disqualified and not Allied, Allied would be next in line to receive the award because it was the only other offeror considered for the BPA. Additionally, if the Court finds that both Allied and Monster were ineligible for award, DOJ would be obligated to resolicit the contract and Allied could compete for the contract again. Under either of these circumstances, the Court finds that Allied had a “substantial chance” of receiving the award, and thus has standing. See Info. Sci. Corp., 73 Fed.Cl. at 94-95." } ]

[ { "docid": "4675647", "title": "", "text": "Service under either of these paragraphs. The seized property, although in the custody of the Service, is, nevertheless, property of the debtor. Title to the property never passed to the Service or to anyone else. Any doubt about the debtor’s continued ownership of the property is soon dispelled upon the reading of § 6335 of the Internal Revenue Code of 1954 which provides for the sale of seized property. That section repeatedly refers to the taxpayer as the owner of the property. Therefore, paragraph 5 clearly applies in this case. Furthermore, even if the seizure had divested the debtor of title to the property, paragraph 6 would prevent the Service from unilaterally exercising its right to sell the property since such a sale would constitute an act to collect a claim against the debtor. See In re Avery Health Center, Inc., Civil Action No. 81-51E, BK 81-10130, 3 CBC 728, 8 B.R. 1016 (Bkrtcy. W.D.N.Y.1981). Having decided that the automatic stay is applicable to the Service with respect to the seized property we must now consider whether the stay should be continued or lifted. Here, the relevant section of the Code is § 362(d) which provides as follows: 362(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay— (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or (2) with respect to a stay of an act against property, if— (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization. It is readily apparent that the Service cannot succeed in lifting the stay under paragraph 2. The hearings required by 11 U.S.C. § 362(d) have been held and this Court finds with regard to those hearings that the property of the debtor is worth $162,876 as a going concern and that the only liens against that property are a" } ]

[ { "docid": "18552425", "title": "", "text": "of § 362(a)(3) is an examination of the provisions of the Bankruptcy Code governing use of property and turnover of property. The debtor generally may use property of the estate in the ordinary course of the debtor’s business. 11 U.S.C. § 363(c)(1). However, on request of a secured creditor, the court must condition such use on the debtor’s furnishing adequate protection. 11 U.S.C. § 363(e). In turn, under § 542(a) of the Code, a creditor “in possession, custody or control ... of property that the trustee may use, sell or lease under section 363 of this title, shall deliver to the trustee ... such property ... unless such property is of inconsequential value or benefit to the estate.” In Whiting Pools, the debtor sought a turnover order against the Internal Revenue Service (“IRS”). The court of appeals upheld the bankruptcy court’s power to order turnover. In seeking reversal of the court of appeals, the IRS urged that its prepetition seizure by tax levy removed the property from the reach of the debtor’s reorganization efforts. In disagreeing, the Supreme Court determined that § 542(a) mandates that a secured creditor in possession of the debtor’s property seized prepetition must turn over that property to the trustee if the trustee is authorized to use, sell or lease the property under § 363. Whiting Pools, 462 U.S. at 203-207, 103 S.Ct. at 2312-2315. The Court reasoned that “§ 542 modifies the procedural rights available to creditors to protect and satisfy their liens.... In effect, § 542 grants to the estate a possessory interest in certain property of the debtor that was not held by the debtor at the commencement of reorganization proceedings.” Id. at 206-207, 103 S.Ct. at 2314 (footnotes and citations omitted). Significant to the issue in this case, the Court went on to state that in return for giving up those possessory rights, “[t]he Bankruptcy Code provides secured creditors various rights, including the rights to adequate protection, and these rights replace the protection afforded by possession.” Id. at 207, 103 S.Ct. at 2315. In this regard, the Court concluded that “[t]he IRS," }, { "docid": "22615992", "title": "", "text": "a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.” 11 U. S. C. § 542(a) (1976 ed., Supp. V). Section 543(b)(1) requires a custodian to “deliver to the trustee any property of the debtor transferred to such custodian, or proceeds of such property, that is in such custodian’s possession, custody, or control on the date that such custodian acquires knowledge of the commencement of the case.” The Bankruptcy Court declined to base the turnover order on § 542(a) because it felt bound by In re Avery Health Center, Inc., 8 B. R. 1016 (WDNY 1981) (§ 542(a) does not draw into debtor’s estate property seized by IRS prior to filing of petition). Section 363(e) of the Bankruptcy Code provides: “Notwithstanding any other provision of this section, at any time, on request of an entity that has an interest in property used, sold, or leased, or proposed to be used, sold, or leased, by the trustee, the court shall prohibit or condition such use, sale, or lease as is necessary to provide adequate protection of such interest. In any hearing under this section, the trustee has the burden of proof on the issue of adequate protection.” 11 U. S. C. § 363(e) (1976 ed., Supp. V). Pursuant to this section, the Bankruptcy Court set the following conditions to protect the tax lien: Whiting was to pay the Service $20,000 before the turnover occurred; Whiting also was to pay $1,000 a month until the taxes were satisfied; the IRS was to retain its lien during this period; and if Whiting failed to make the payments, the stay was to be lifted. 10 B. R., at 761. Section 541(a)(1) speaks in terms of the debtor’s “interests ... in property,” rather than property in which the debtor" }, { "docid": "11204185", "title": "", "text": "362(a)(3) reaches only postpetition affirmative actions to take control of a debtor’s property. E.g., In re Richardson, 135 B.R. at 259. The passive act of continuing to possess property does not fall within the prohibition under § 362(h). In re Young, 193 B.R. at 625. If a vehicle has been lawfully repossessed prepetition, the creditor had a right to possess the vehicle on the date the debtor filed for bankruptcy. In re Fitch, 217 B.R. at 288. Since the purpose of the automatic stay is to maintain the status quo that existed on the date of a debtor’s bankruptcy filing, the creditor should not have to turn over the vehicle absent assurance that its prepetition position will be protected. Id. at 291. The often-cited decision in Young comments that if § 362(a)(3) were interpreted as requiring immediate turnover, it would represent a dramatic shift from the pre-Code practice of allowing secured creditors to retain repossessed collateral until adequate protection was provided by the debtor. In re Young, 193 B.R. at 626. Importantly, too, it would contravene the statutory scheme under §§ 363(e) and 542(a) to find that a creditor has an affirmative duty to turn over collateral repossessed prior to bankruptcy. ... § 542(a) also limits turnover to property that can be used under § 363. Under § 363(e) the creditor can obtain an order prohibiting a proposed use of the property unless the estate provides adequate protection. This constitutes a significant defense to the grant of a turnover order under § 542(a). The defense would be abrogated by an interpretation of § 362(a)(3) requiring turnover without permitting invocation of the defense. Such an approach is contrary to the logical interaction of §§ 363(e) and 542(a). The burden is on the trustee, when the issue is raised, to prove adequate protection. 11 U.S.C. § 363 (o)(l). Logically, therefore, the creditor should be entitled to hold onto the property during the pen-dency of the § 542 action until the adequate protection question is resolved. The obvious rationale implicit in permitting the secured creditor to retain possession of the seized property while" }, { "docid": "4679486", "title": "", "text": "and property rights: The term “levy” as used in this title includes the power of distraint and seizure by any means. ... In any case in which the Secretary of his delegate may levy upon property or rights to property, he may seize and sell such property or rights to property . ... The ultimate question presented is what is left for the original owner after the I.R.S. seizes property. That is, what can be left for the use of the debtor’s estate pursuant to § 363 of the Bankruptcy Code after all property and rights to property have been seized? The answer to this question is presented in part by I.R.C. § 6337. The taxpayer whose personal property has been levied retains the right to redeem the property at any time before it is sold. Further, the taxpayer has the right to receive notice of the sale (26 U.S.C. § 6335(b)) as well as surplus proceeds of the sale, if any. 26 U.S.C. § 6342(b). These interests remain as of the commencement of the case and become property of the estate. It is unsettled whether title actually passes when the I.R.S. seizes property. It is clear, however, that the seizure of property is “tantamount” to a transfer of ownership. United States v. Pittman, 449 F.2d 623, 626 (7th Cir. 1971). In any case, the title issue need not be decided here, because even if the title remains with the taxpayer upon seizure, such a bare legal title does not include the right of possession. The I.R.S. appears to be under no obligation to return the property unless or until the taxes are paid. See, 26 U.S.C. § 6337. The property of the estate consists of the Plaintiff’s remaining interests in the property as of the commencement of the case. 11 U.S.C. § 541(a)(1) (1978). The estate does not acquire all property in which the Plaintiff/Debtor has any interest. Bush Gardens, Inc. v. United States, supra at 1024. The legislative history supports this view: Thus, as section 541(a)(1) clearly states, the estate is comprised of all legal or equitable interests" }, { "docid": "6515042", "title": "", "text": "or turning the money over to the trustee as property of the estate. The failure of the I.R.S. to take either of these actions is in violation of both the automatic stay and of the turnover requirements of the Bankruptcy Code. The I.R.S. contends that it is entitled to adequate protection before it has to turn over the property of the estate. Once again, it cites no authority for this proposition. The Court assumes that the I.R.S. is claiming rights of setoff. The Court does not see how the setoff provisions of § 553 can apply, for the property in question did not come into the possession of the I.R.S. until after the filing of the bankruptcy. They therefore are not entitled to a secured claim under § 506(a) and cannot claim adequate protection for use of the cash collateral pursuant to § 363. Once again the I.R.S. argument appears to be without legal justification and no statute or cases are cited in support thereof. The remedy available to a debtor for a creditor’s violation of the automatic stay is contained in 11 U.S.C. § 362(h) which provides: An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, if appropriate circumstances, may recover punitive damages. The Internal Revenue Service is hereby ordered to turn over the funds in question to the debtor with interest from August 29, 1985. Although this property is clearly property of the estate, it has been exempted and the trustee has since abandoned any interest in it. Therefore, turnover to the debtor is appropriate. Furthermore, the Internal Revenue Service shall pay debtor’s attorney the actual amount of their fees incurred in this case. The debtor has also prayed for an award of punitive damages, however, the facts do not justify imposition of punitive damages because of the vague record as to the intent and knowledge of the I.R.S. employees involved, and in view of the fact that the debtor can be made whole by virtue of the return of the monies and" }, { "docid": "15129844", "title": "", "text": "post-petition lien against, property of the bankruptcy estate. 11 U.S.C. §§ 362(a)(3)-(5) (2003). Any entity that possesses property that the bankruptcy trustee may use, sell, or lease under the Bankruptcy Code is required to turn over or account for the property. Id. § 542(a). Before requiring a party to turn over property, however, courts must ensure that the party’s interest in the property is adequately protected. Id. §§ 362(d)(1), 363(e). The central question here is whether Tidewater Finance and the repossessed vehicle are subject to these automatic stay and turnover provisions of the Bankruptcy Code. A. We must first determine the nature of Moffett’s property interests in the repossessed vehicle, and whether those interests became part of her bankruptcy estate. A debtor’s bankruptcy “estate” is automatically created at the time she files for bankruptcy. It broadly includes, among other things, “all legal or equitable interests of the debtor in property as of the commencement of the case.” Id. § 541(a)(1). The inclusive scope of the bankruptcy estate reflects the desire of Congress to facilitate the financial rehabilitation of debtors. See United States v. Whiting Pools, Inc., 462 U.S. 198, 203-04, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). Yet, while federal law defines in broad fashion what property interests are included within the bankruptcy estate, state law determines the nature and existence of a debtor’s rights. Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); Universal Coops., Inc., v. FCX, Inc. (In re FCX, Inc.), 853 F.2d 1149, 1153 (4th Cir.1988). We therefore must look to Virginia law in determining the nature of Moffett’s interests in the vehicle upon repossession. Because we deal here with a debt- or’s default on a purchase agreement with a secured creditor, Virginia’s Uniform Commercial Code-Secured Transactions (“UCC”) controls our analysis. See Va. Code § 8.9A-601, et seq. (2003). Section 8.9A-609 of the UCC expressly permits a secured creditor to repossess the collateral protecting its security interest after default by the debtor. Upon repossession, Virginia’s UCC grants the secured creditor a number of important rights. Here, for example, once Tidewater" }, { "docid": "4679483", "title": "", "text": "MEMORANDUM OPINION AND ORDER JOHN P. MOORE, Bankruptcy Judge. THE MATTER before the Court is the Chapter 11 debtor’s (Plaintiff’s) Complaint to Compel Turnover of Property. The operative facts have been admitted, and the legal questions submitted to the Court on briefs. On May 14 and 15, 1980, the Defendant (I.R.S.) seized certain “equipment and vehicles” from the Plaintiff to satisfy tax liabilities. Subsequently, on June 3, 1980, the Plaintiff filed a petition for relief under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101 et seq. (Code). The issue thus presented is whether this Court has the authority to order the turnover of property seized by the I.R.S. prior to the petition date. At the outset, it must be made clear that this issue no longer depends upon the distinction between summary and plenary jurisdiction, as it did under the former Bankruptcy Act. Under The Code, the subject matter jurisdiction of this Court has been widely expanded to include “all civil proceedings . . . arising in or related to cases under title 11.” 28 U.S.C. § 1471(b) (1978). Because the property seized would be used by the Plaintiff/Debtor for its reorganization, this proceeding both arises in and is related to a case under title 11. Hence, insofar as cases such as Phelps v. United States, 421 U.S. 330, 95 S.Ct. 1728, 44 L.Ed.2d 201 (1975), turn on the “summary-plenary” jurisdictional distinction, they are not controlling or on point. In this case of first impression in this district the analysis of the issue begins with the plain language of the applicable Code sections. Section 542(a), entitled “Turnover of property to the estate”, provides in part: [A]n entity, other than a custodian, in possession, custody, or control during the case, of property that the trustee may use, sell, or lease under section 363 of this title, . . . shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate. Section 363, entitled “Use, sale, or lease of property”, only authorizes a" }, { "docid": "22956795", "title": "", "text": "is predicated on its possession of the plaintiff’s property in the face of a judicially ordered warrant of eviction. The debtor asserts that such possession constitutes an equitable interest deserving of protection under the automatic stay. There is no question that equitable interest in property is regarded as property of the estate within the meaning of 11 U.S.C. § 541. The commencement of a bankruptcy case creates an estate which, according to 11 U.S.C. § 541(a)(1) consists of “all legal or equitable interests of the debt- or in property as of the commencement of the case.” However, the debtor’s right to possess the property in question has been judicially determined as demonstrably nonexistent; resulting in the state court ordered warrant of eviction. Assuming, nevertheless, that the debtor’s de facto possession is a sufficient nexus to invoke the protection of the automatic stay under 11 U.S.C. § 362, such stay is subject to termination or modification by the court for grounds delineated in subsection (a)(3) of 11 U.S.C. § 362, which are expressed as follows: “(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (2) of this section, such as by terminating, annulling, modifying, or conditioning such stay— (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or (2) with respect to a stay of an act against property, if— (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization.” At the trial the debtor presented no evidence whatsoever concerning the issue of adequate protection of the plaintiff’s interest in the property. Since it was the debt- or’s burden to provide or propose a method of protection, the failure to meet this burden necessitates a modification of the automatic stay. See House Report No. 95-595, 95th Cong., 1st Sess. (1977) 338-40 U.S.Code Cong. & Admin.News 1978, p. 5787, 11 U.S.C. § 362(d)(1). Moreover, although the Bankruptcy Code does not indicate the nature of" }, { "docid": "4679485", "title": "", "text": "debtor or trustee to use, sell, or lease “property of the estate”. Code § 363(b) and (c). Consequently, unless the equipment and vehicles seized by the I.R.S. are “property of the estate”, the I.R.S. cannot be compelled to turn them over for the use of the Plaintiff. As it applies to this proceeding, Code § 541(a)(1) provides that property of the estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.\" [emphasis added] A determination must thus be made of what legal or equitable interests the Plaintiff had in the seized equipment and vehicles as of the commencement of this case. Reference must be made to the Internal Revenue Code and case law for this determination. Section 6331(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 6331, (I.R.C.), authorizes the collection of delinquent tax “by levy upon all property and rights to property ... for the payment of such tax.” Subsection (b) of I.R.C. § 6331 authorizes the seizure and sale of such property and property rights: The term “levy” as used in this title includes the power of distraint and seizure by any means. ... In any case in which the Secretary of his delegate may levy upon property or rights to property, he may seize and sell such property or rights to property . ... The ultimate question presented is what is left for the original owner after the I.R.S. seizes property. That is, what can be left for the use of the debtor’s estate pursuant to § 363 of the Bankruptcy Code after all property and rights to property have been seized? The answer to this question is presented in part by I.R.C. § 6337. The taxpayer whose personal property has been levied retains the right to redeem the property at any time before it is sold. Further, the taxpayer has the right to receive notice of the sale (26 U.S.C. § 6335(b)) as well as surplus proceeds of the sale, if any. 26 U.S.C. § 6342(b). These interests remain as of the commencement of the" }, { "docid": "1945346", "title": "", "text": "B.R. at 6; In re Sharon, 234 B.R. at 683-84. However, if a creditor is allowed to retain possession, then this burden is rendered meaningless — a creditor has no incentive to seek protection of an asset of which it already has possession. Thus, in order for the language of 11 U.S.C. § 363(e) to have meaning, Congress must have intended for the asset to be returned to the bankruptcy estate before the creditor seeks protection of its interest. A reading of 11 U.S.C. § 542(a) also indicates that turnover of a seized asset is compulsory. This provision states that a creditor in possession of an asset belonging to the bankruptcy estate “shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.” 11 U.S.C. § 542(a) (emphasis added). The majority of appellate courts have found that section 542(a) works with the stay provision in section 362(a) “to draw back into the estate a right of possession that is claimed by a lien creditor pursuant to a pre-petition seizure; the Code then substitutes ‘adequate protection’ for possession as one of the lien creditor’s rights in the bankruptcy case.” In re Sharon, 234 B.R. at 683. The right of possession is incident to the automatic stay. A subjectively perceived lack of adequate protection is not an exception to the stay provision and does not defeat this right. Id. at 684. Instead, section 362(d) “works in tandem with § 542(a) to provide creditors with what amounts to an affirmative defense to the automatic stay.” In re Yates, 332 B.R. at 5. First, the creditor must return the asset to the bankruptcy estate. Then, if the debtor fails to show that he can adequately protect the creditor’s interest, the bankruptcy court is empowered to condition the right of the estate to keep possession of the asset on the provision of certain specified adequate protections to the creditor. See id.; see also In re Colorirán, 210 B.R. 823, 827-28 (9th Cir. BAP 1997) (“A creditor who requires" }, { "docid": "1167588", "title": "", "text": "re Conti, 50 B.R. 142, 149 (Bkrtcy.E.D.Va.1985). The money in the bank accounts is property of the estate under 11 U.S.C. § 541(a)(1), which comprises “all legal or equitable interests of the debtor in property as of the commencement of the case.” Before a creditor may offset a debt with estate property in its possession, it must obtain relief from stay under 11 U.S.C. § 362(d). See United States on Behalf of I.R.S. v. Norton, 717 F.2d 767, 771 (3d Cir.1983); In re Conti, 50 B.R. 142, 149 (Bkrtcy.E.D.Va.1985); In re Nelson, 6 B.C.D. 985, 986, 6 B.R. 248, 249, 2 C.B.C.2d 1288 (Bkrtcy.D.Kan.1980). See, generally, Freeman, Set-off Under the New Bankruptcy Code, 97 Banking Law Journal 484 (1980); Ahart, Bank Setoff Under the Bankruptcy Reform Act of 1978, 53 American Bankruptcy Law Journal 205 (1979). Although the bank must seek relief from stay from the Court before it may act, the debtor in possession is similarly required to obtain either the authorization of the Court or the consent of the bank before drawing on accounts that the bank has rights in. Section 506(a) of the Code provides in pertinent part that: An allowed claim of a creditor ... that is subject to setoff under section 553 of this title, is a secured claim ... to the extent of the amount subject to setoff ... and is an unsecured claim to the extent that ... the amount so subject to setoff is less than the amount of such allowed claim. A claim is deemed “allowed” unless a party in interest objects to the claim, 11 U.S.C. § 502(a). If the claim is indeed allowed and if the bank’s right to setoff does not fall within the exceptions set out in 11 U.S.C. § 553(a)(1)-(3), the funds in the debt- or’s bank accounts represent the collateral for the bank’s secured claim. The Code specifically defines “cash collateral” to include “deposit accounts, or other cash equivalents whenever acquired in which the estate and an entity other than the estate have an interest ...” 11 U.S.C. § 363(a). Under § 363(c)(2), a trustee" }, { "docid": "4679484", "title": "", "text": "11.” 28 U.S.C. § 1471(b) (1978). Because the property seized would be used by the Plaintiff/Debtor for its reorganization, this proceeding both arises in and is related to a case under title 11. Hence, insofar as cases such as Phelps v. United States, 421 U.S. 330, 95 S.Ct. 1728, 44 L.Ed.2d 201 (1975), turn on the “summary-plenary” jurisdictional distinction, they are not controlling or on point. In this case of first impression in this district the analysis of the issue begins with the plain language of the applicable Code sections. Section 542(a), entitled “Turnover of property to the estate”, provides in part: [A]n entity, other than a custodian, in possession, custody, or control during the case, of property that the trustee may use, sell, or lease under section 363 of this title, . . . shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate. Section 363, entitled “Use, sale, or lease of property”, only authorizes a debtor or trustee to use, sell, or lease “property of the estate”. Code § 363(b) and (c). Consequently, unless the equipment and vehicles seized by the I.R.S. are “property of the estate”, the I.R.S. cannot be compelled to turn them over for the use of the Plaintiff. As it applies to this proceeding, Code § 541(a)(1) provides that property of the estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.\" [emphasis added] A determination must thus be made of what legal or equitable interests the Plaintiff had in the seized equipment and vehicles as of the commencement of this case. Reference must be made to the Internal Revenue Code and case law for this determination. Section 6331(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 6331, (I.R.C.), authorizes the collection of delinquent tax “by levy upon all property and rights to property ... for the payment of such tax.” Subsection (b) of I.R.C. § 6331 authorizes the seizure and sale of such property" }, { "docid": "15129843", "title": "", "text": "returned to Moffett. However, the bankruptcy court first required adequate protection in the reorganization plan for Tidewater Finance’s security interest. The modified plan provided for full payment of the amounts due under the contract — including the delinquent payments — over the course of the plan. Tidewater Finance complied with the orders and turned over the car, but filed a notice of appeal on June 27, 2002. The district court heard Tidewater Finance’s appeal of the bankruptcy court’s orders. Tidewater Finance claimed that Moffett did not have any interests in the car other than bare legal title and an intangible right of redemption. The district court, however, ruled that Moffett retained the statutory right of redemption. Therefore, the court held, the bankruptcy court properly required Tidewater Finance to turn over the repossessed vehicle once it was adequately protected in the reorganization plan. Tidewater now appeals that ruling. II. Once a debtor files for Chapter 13 bankruptcy, the Bankruptcy Code automatically stays any act by parties to exercise control over, or to enforce a pre-petition or post-petition lien against, property of the bankruptcy estate. 11 U.S.C. §§ 362(a)(3)-(5) (2003). Any entity that possesses property that the bankruptcy trustee may use, sell, or lease under the Bankruptcy Code is required to turn over or account for the property. Id. § 542(a). Before requiring a party to turn over property, however, courts must ensure that the party’s interest in the property is adequately protected. Id. §§ 362(d)(1), 363(e). The central question here is whether Tidewater Finance and the repossessed vehicle are subject to these automatic stay and turnover provisions of the Bankruptcy Code. A. We must first determine the nature of Moffett’s property interests in the repossessed vehicle, and whether those interests became part of her bankruptcy estate. A debtor’s bankruptcy “estate” is automatically created at the time she files for bankruptcy. It broadly includes, among other things, “all legal or equitable interests of the debtor in property as of the commencement of the case.” Id. § 541(a)(1). The inclusive scope of the bankruptcy estate reflects the desire of Congress to facilitate the" }, { "docid": "6515041", "title": "", "text": "paperwork was making its way through channels), then the delay was a violation of the automatic stay. Second, did the I.R.S., without any affirmative action to obtain the wages, violate the stay by receiving and keeping the wages post-petition, after actual notice of the bankruptcy? The I.R.S. contends that although it had actual notice of the bankruptcy, it performed no affirmative act to obtain possession of the wages, and merely received, post-petition, a check mailed to it by the county. The I.R.S. clearly had a duty under 11 U.S.C. § 542 to turn over to the trustee property of the estate, even if the debtor may exempt that property. Posi tive action on the part of the creditor is required not only to halt the continuation of the garnishment, but to turn over to the trustee sums that it received from the garnishee. Elder, supra, at 495. After learning of the bankruptcy, the I.R.S. had the choice of returning the check to the County, for it had received it in violation of the automatic stay, or turning the money over to the trustee as property of the estate. The failure of the I.R.S. to take either of these actions is in violation of both the automatic stay and of the turnover requirements of the Bankruptcy Code. The I.R.S. contends that it is entitled to adequate protection before it has to turn over the property of the estate. Once again, it cites no authority for this proposition. The Court assumes that the I.R.S. is claiming rights of setoff. The Court does not see how the setoff provisions of § 553 can apply, for the property in question did not come into the possession of the I.R.S. until after the filing of the bankruptcy. They therefore are not entitled to a secured claim under § 506(a) and cannot claim adequate protection for use of the cash collateral pursuant to § 363. Once again the I.R.S. argument appears to be without legal justification and no statute or cases are cited in support thereof. The remedy available to a debtor for a creditor’s violation" }, { "docid": "15508541", "title": "", "text": "was not a “provable debt” and therefore not dischargeable under the Bankruptcy Act. Zwick at 116. The court in Tragash reasoned that: . . . “Congress did not intend to exempt bankrupts from the provisions of the Commodities Act, a view supported by the absence of any reference to the Bankruptcy Act in the provision in question although other provisions of the Commodities Act do include references to bankruptcy.” at 1257. Applying this type of statutory construction to GNMA and the automatic stay, that is, HUD and secondary mortgages are mentioned in the Bankruptcy Code but no exception to the automatic stay is provided to GNMA, GNMA is not an entity exempt from the provisions of the Section 362 stay. In analyzing the cases cited by defendant and the entire problem posed by this contempt action, it is important to note that the Court is not being asked to rule on the ultimate effect of GNMA’s regulations. The issue before the court is simply whether GNMA is prevented from taking unilateral action by the force and effect of the automatic stay provided by Section 362 of the new Bankruptcy Code. PROPERTY OF THE ESTATE GNMA contends that the property which GNMA sought to seize is not property “of the estate” within the meaning of Section 541 of the Bankruptcy Code, and that the property in question was also not “property from the estate” within the meaning of Section 362(a)(3), and that this fact gives it the unilateral right to seize the property without application to and the consent of the Bankruptcy Court. The Bankruptcy Code clearly stays “any entity” from “any act to obtain possession of property of the estate or of ^perty from the estate.” Section 362(a)(3). Property classified in either of said categories, or in both, would be protected from the type of unilateral and unauthorized action taken by GNMA on March 3. Property of the Estate Defined In the Code, Section 541 defines property of the estate and actions which may be taken with respect thereto. Sub-part (a) of Section 541 defines “property of the estate” and" }, { "docid": "1945348", "title": "", "text": "possession in order to achieve or maintain perfection has the right to file a motion for relief from the stay and request adequate protection such that its lien rights are preserved. However, the creditor must tender the goods or face sanctions for violation of the stay. The creditor has a right to and may request terms of adequate protection while simultaneously returning the goods. However, while the creditor may suggest terms of adequate protection, it may not unilaterally condition the return of the property on its own determination of adequate protection.”), rev’d on other grounds, 165 F.3d 35 (9th Cir.1998). The Supreme Court, in Whiting Pools, 462 U.S. 198, 204, 103 S.Ct. 2309, 76 L.Ed.2d 515, adopted this interpretation of section 542(a) in the context of a Chapter 11 corporate reorganization bankruptcy. In Whiting Pools, a debtor corporation asked the Court to determine whether the I.R.S., which had seized some of the debt- or’s assets prior to its bankruptcy filing, was subject to the stay provisions of section 362(a). Id. at 200, 103 S.Ct. 2309. The Supreme Court unanimously held that the I.R.S. is subject to these provisions. Id. at 209,103 S.Ct. 2309. ‘ The Court further held, after analyzing the relevant legislative history, that section 542(a) “requires an entity (other than a custodian) holding, any property of the debtor that the trustee can use under § 363 to turn that property over to the trustee.” Id. at 205, 103 S.Ct. 2309. The Court stated that when a creditor seizes property before a debtor files for Chapter 11, the creditor’s “lien does not dissolve nor is its status as a secured creditor destroyed.” Id. A creditor is entitled to adequate protection for its interests, but it is required to seek protection of these interests according to congressionally established bankruptcy procedures rather than by withholding seized property from a debtor’s efforts to reorganize. Id. A creditor must look to section 363(e) for protection “rather than to the nonbank-ruptcy remedy of possession.” Id. at 204, 103 S.Ct. 2309. GMAC’s only argument against Whiting Pools’s direct applicability to this case is that, in" }, { "docid": "22303372", "title": "", "text": "debtor to seek recovery of property seized in violation of stay); In re Holman, 92 B.R. 764 (Bankr.S.D.Ohio 1988) (creditor’s continued retention of automobile after receiving notice of bankruptcy constituted willful stay violation); In re Carlsen, 63 B.R. 706, 711 (Bankr.C.D.Cal.1986) (failure of I.R.S. to return funds received pursuant to levy after receiving notice of bankruptcy was “violation of both the automatic stay and of the turnover requirements of the Bankruptcy Code”) (emphasis added). The above cases stand for a number of propositions that are relevant to the present case. First, and primarily, the cases are representative of a general rule that a creditor’s knowing retention of property of the estate constitutes a violation of the automatic stay. It is noteworthy that this result is found in cases such as Miller that were decided prior to the 1984 amendment to § 362(a)(3), an amendment which made it clear that post-petition control over estate property is a violation of the stay. Second, the above decisions appear to be based in part on the proposition that § 542 provides the right to the return of estate property, while § 362(h) provides the remedy for the failure to do so. Carlsen expressly states that the failure to return property of the estate with knowledge of the bankruptcy is a violation of both the automatic stay and of the turnover requirements of the Bankruptcy Code. 63 B.R. at 711. Support for this right/remedy concept is also found in the fact that the Code expresses no remedy for a violation of § 542, while § 362 contains its own remedial provision. See § 362(h). Moreover, the remedy and sanction provided by § 362(h) are specifically applicable to the issue before us, whereas the general provisions of § 105 leave its application open to question. A third common theme presented by these decisions is that the duty to insure the post-petition return of property of the estate lies with the entity in possession of such property, and not the debtor. A trustee or debtor-in-possession does have the ability to bring a motion to compel turnover under" }, { "docid": "1120890", "title": "", "text": "tax levy gives the government “full legal right” to the levied property as against the receiver in bankruptcy. Courts which have held that property subjected to a tax levy must be turned over to the trustee have not fully considered the effect of a tax levy on the taxpayer’s property rights. A levy and seizure of property by the IRS transfers from the taxpayer to the government the precise property right involved in a turnover proceeding — namely, the right to sell the levied property and to exclude others, such as the debtor, from using, selling or leasing the same. The Bankruptcy Code requires the turnover of property which the trustee may use, sell or lease; it does not require the turnover of property in which the debtor merely has some other interest. The debtor has argued that the automatic stay provisions of the Bankruptcy Code, 11 U.S.C. § 362, apply to the IRS and that the Bankruptcy Court’s turnover order was therefore proper. The stay provisions apply only prospectively. They do not undo the IRS’s seizure of the debtor’s property prior to the commencement of the case. The levy and seizure having been accomplished before the bankruptcy petition was filed, .the automatic stay provisions of the Bankruptcy Code do not revoke the rights obtained by the IRS with respect to the debtor’s property through such levy and seizure. Certain further considerations are not before me but probably must be dealt with in and by the Bankruptcy Court. The automatic stay provisions may prevent the IRS from unilaterally exercising its right to sell the levied property. Such may fall within the purview of 11 U.S.C. § 362(a)(6) as an “act to collect * * * a claim that arose before the commencement of the case.” Therefore, before it may sell the levied property, the IRS may have to seek relief in the Bankruptcy Court from the automatic stay provisions. Any power in that court to condition relief from the stay may enable it to protect the debtor’s remaining interests, and those of the debtor’s other creditors, in a surplus (over" }, { "docid": "23020385", "title": "", "text": "the debtor to appeal the dismissal. An appeal was taken and is still pending. On December 3, 1979, the debtor filed a petition under Chapter 11 of the Bankruptcy Reform Act of 1978 (Public Law 95-598) (hereinafter referred to as the “Bankruptcy Code”). The State moved to vacate the automatic stay imposed by Section 362 and, in addition, to dismiss the Chapter 11 proceeding or have it converted to a Chapter 7 case. Contemporaneously, the debtor filed a complaint pursuant to Section 542 of the Bankruptcy Code to compel the State to return the seized property. The debtor and the State have agreed that the issues presented by the complaint filed by the State are to be held in abeyance pending the court’s determination of the turnover issue. Section 542, in pertinent part, provides that an entity “. . .in possession, custody, or control ... of property that the trustee may use, sell, or lease under section 363 of this title . . . shall deliver to the trustee, and account for, such property or the value of such property unless such property is of inconsequential value or benefit to the estate.” An entity under the Bankruptcy Code “includes any person, estate, trust, governmental unit.” 11 U.S.C. § 101(14). “Governmental unit” includes the United States or any state. 11 U.S.C. § 101(21). Thus, if the property seized is property of the estate that the debtor may use, sell, or lease under § 363 of the Bankruptcy Code, and if it is property of more than inconsequential value or benefit to the estate, the State may be required to return the property. The initial question to be determined is whether the property seized by the State is property of the debtor. Under the Bankruptcy Code, an estate is created upon the-commencement of the case. 11 U.S.C. § 541(a). The estate created consists of “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). The legislative history indicates that the scope of Section 541 is extremely broad, and that it “." }, { "docid": "1784109", "title": "", "text": "lessor the right to adequate protection when a debtor decides to use or lease property. See In re Attorneys Office Management, Inc. The 1984 amendments to the Bankruptcy Code also undercut the Sweetwater analysis. Section 362(b)(10) was added to the Code and provides . an exception to the reach of the automatic stay for certain lessors of nonresidential real property. By implication, other lessors of nonresidential real property are restricted by the stay provisions of section 362(a). Section 365 was also amended by, inter alia, the addition of subsection (d)(3) requiring lessees of nonresidential real property to comply with all lease terms until a decision to reject the lease has been made. To follow Sweetwa-ter would mean that a lessor is effectively stayed upon the filing of the bankruptcy petition but the lessor cannot obtain relief from the stay when the trustee utilizes the leasehold under section 363 without adequate protection or when the trustee fails to comply with lease terms as required by section 365(d)(3). If Congress intended for lessors in a chapter 7 proceeding to be protected solely by section 365(d)(1), (4) and (g)(1) while the trustee is deciding whether to assume the lease, it would have said so more clearly. I must therefore decline to follow Sweetwater and I will apply the provisions of sections 361, 362(d)(1) and 363(e) to a leasehold interest in a chapter 7 proceeding involving a nonresidential lease. Since I have concluded that the provisions of section 365 alone do not govern this dispute, I must now resolve the question whether there is any lease to assume in this matter. I must also define adequate protection within the framework of this chapter 7 involuntary case where the 60 day period provided by section 365(d)(4) has not yet expired. IV. The lessors contend that the lease was terminated prior to the bankruptcy filing and that therefore there is no property of the estate which is even subject to the automatic stay. In this district, it has been settled for some time that “property of the estate” under 11 U.S.C. § 541 includes even a" } ]

[ { "docid": "9615090", "title": "", "text": "PHILLIPS, Chief Judge. Marie M. Ketchum brought this action against Denver, and Rio Grande Western Railroad Company to recover damages for personal injuries. Ketchum is the wife of a retired employee of the Railroad Company. On February 11, 1947, she held a pass theretofore issued to her by the Railroad Company, authorizing her to travel on trains of the Railroad Company, other than certain designated trains, without charge. Ketchum signed the pass immediately below the following provision: “This Pass accepted by me for use subject to conditions on back.” The reverse side of the pass contained the following condition: “The user assumes all risk of injury to person and loss or damage to property, whether by negligence or otherwise, and absolves any carrier honoring this pass, as well as its agents or employees, from any liability therefor.” On February 11, 1947, Ketchum entered the Railroad Company’s passenger station premises at Helper, Utah, to travel on a train of the Railroad Company from Helper, Utah, to Ogden, Utah. While proceeding along the walkway from the station to the train for the purpose of boarding it, she suffered an accident. A verdict was returned in favor of Ketchum. The trial court entered judgment notwithstanding the verdict on the ground that Ketchum was barred from recovering by virtue of the provisions of the pass. She has appealed. The relation of carrier and passenger arises, and the duty of the carrier to the passenger attaches, when the latter enters the station premises for the purpose of boarding a train of the carrier. Such relationship precedes the actual boarding of the train and comes into being when a person, with the consent of the carrier, express or implied, enters the appropriate premises of the Railroad Company with the bona fide intent to avail himself of the transportation facilities which the carrier offers. It follows that the relationship of carrier and passenger existed at the time the accident occurred. Section 1 of the Act of June 29, 1906, the Hepburn Act, as amended by the Acts of April 13, 1908, and June 18, 1910, 49 U.S.C.A." } ]

[ { "docid": "22997983", "title": "", "text": "And in the case before the court it was held to be a question for the jury, under all the circumstances, whether the plaintiff was chargeable with contributory negligence. The doctrine of the Terry case was approved in- Brassell v. New York, Central &c. Railroad, 84 N. Y. 246, and is sup ported by the following authorities: Atchison &c. Railroad v. Shean, 18 Colorado, '68; Phil. Wil. & Balt. Railroad v. Anderson, 72 Maryland, 519, 530; Balt. & Ohio Railroad v. State, 60 Maryland, 449, 463, 465 ; Pennsylvania Railroad v. White, 88 Penn. St. 327, 333, 334; Jewett v. Klein, 27 N. J. Eq. 550 ; Wheelock v. Boston & Albany Railroad, 105 Mass. 203. To concede the rule, and, in a given case, to take a passenger beyond its protection by holding that one who goes in proper time to a station for the purpose of taking a train oyer the road and has a ticket for travel thereon, is not to' be considered as a passenger' until he has manifested by some outward act his intention to board a train and become a passenger, is to admit the rule on the one hand and on the other to deny it. It is also clear that to say that one who goes to a station to take a train must exercise the same circumspection and care as a traveller on the highway or a trespasser, unless by some implication the corporation has invited the person to deport himself as a passenger, and that such implication must be determined as matter of law by the court and not of fact by the jury, is, in. effect, under the form of a qualification, to destroy the rule. The situation of the tracks, the location of the station building and the waiting, room, the coming of the local train and its stopping to receive passengers in a position which required the latter to cross a track in order to reach the train, involved necessarily a condition of things, which under one view of the testimony constituted an implied invitation to the" }, { "docid": "14235494", "title": "", "text": "they cannot protect themselves.’ ” Davis, 127 N.E. at 67 (quoting 4 Elliott on Railroads, 2nd ed., § 1590 and Moreland v. Boston & Providence R.R. Corp., 141 Mass. 31, 6 N.E. 225, 227 (1886)). “[I]n all [the eases enforcing the highest degree of care,] it is clear that the accidents happened in boarding or alighting from trains or in the course of their moving, and the reason for the highest degree of care in those cases was fully as great as if the passenger were on the moving train .... [T]he same degree of care is not required as to the stations and approaches to and from them, because the danger incurred in such surroundings is not the same as it is on moving trains.” Davis, 127 N.E. at 68 (emphasis added). At least when they are victims of accidents which involve the trains themselves, persons who are on the platform with intent to board a train are passengers, according to the above pronouncements of Illinois law. What distinguishes Joseph Aliotta’s case from the many cases cited in Katamay is that most of those involved passengers getting off trains or about to board trains that had already pulled into the station and stopped. The problem here, of course, was precisely that the train did not stop. There is at least one Illinois case in which a train failed to stop, Skelton v. Chicago Transit Authority, 214 Ill.App.3d 554, 158 Ill.Dec. 130, 573 N.E.2d 1315 (1991). Joseph Skelton was waiting for a CTA train at a station (what is now the Oak Park stop on the Blue Line) late at night, when a train passed without stopping. Frustrated, he attempted to flag down the next train, which was not slowing down to stop, and fell onto the tracks. The accident resulted in the amputation of his arm. The facts in that case are similar to those in the present one not only because both Josephs were unable to buy a ticket beforehand (the CTA station was unstaffed and a sign instructed riders to buy then-ticket on board, just as we" }, { "docid": "22217416", "title": "", "text": "condition directly and approximately contributed to the injury.” There was another ground of recovery submitted to the jury, but it was negatived by the findings and need not be considered further' It is clear enough, upon this statement of facts, that the railroad did not exercise proper care to afford the plaintiff and his • mother a reasonable opportunity to leave the car with safety. The train was late. The attention of the trainmen was fixed upon a quick starting and diverted from the care of-the passengers, and the stop at the station was very brief. Taking these circumstances into account with the failure to inform Mrs. Calhoun that she had arrived at her place of destination, there is' nó difficulty in concluding that the defendant was negligent. If Mrs. Calhoun and her son as they were about to step upon the station platform had been injured by the premature starting of the car, the defendant unquestionably would have been liable. But the injury did not occur in that way. Mrs. Calhoun handed the child to Mr. Robertson to take off the train, and she herself testified that “the child was safely off the train; I saw it in the arms of the gentleman.” The defendant contends .that the jury was permitted to find for the plaintiff on account of the negligence which occurred prior to the time he was. landed without injury, namely, the failure to announce the station, to assist the passengers, to light the platform adequately at the point of leaving the train, and the delay insufficient to allow passengers to leave the train with safety. The failure in the performance of the clear duty to afford the passengers a safe place and a reasonable timé in which to alight, was not, the defendant insists, the proximate cause of the subsequent injury, which was, on the. contrary, caused by the foolhardy conduct of Jones in attempting to put back the plaintiff on the train. Few questions have more frequently come before the courts than that whether a particular mischief was the result of a particular default. It" }, { "docid": "12941266", "title": "", "text": "it is plaintiff’s further contention, relying on Pennsylvania Company v. Purvis, 1906, 128 Ill, App. 367, and Flower v. London and North-Western Ry. Co. (C.A. 1894 C.A. 2, Hugh B. 63 L.J.Q.B. 547, 70 L.F. 829, 42 W.R. 519), that such provision could not bar his claim for the death of his two deceased minor children, the older of whom was nine years of age; or, the claim here made on behalf of their estate, even for common law negligence. This raises a very interesting question as to which there is a paucity of case law. See: Annotation 41 A.L.R. 1099, entitled, “Stipulations in Passes as Binding on Infants.” The following authorities sustain the proposition that a claim on behalf of a minor is barred by the stipulations avoiding liability in connection with a free railroad pass issued in consideration of the stipulation stated therein. Pinnell v. St. Louis-San Francisco Ry. Co., Mo.Sup.1924, 263 S.W. 182, 41 A.L.R. 1092, and Griswold v. New York & N. E. R. Co., 1895, 53 Conn. 371, 4 A. 261. In the Pinnell case, supra, a 19-year-old boy was killed in a train collision while riding as a free pass passenger. The Supreme Court of Missouri, applying federal law, held that the stipulation avoiding liability was valid; did not violate public policy; and, constituted a complete defense to the action. In the Griswold case, supra, a 17-year-old boy employed by a restaurant to sell sandwiches on defendant’s train, was furnished a free pass which provided that the holder assumes all risk of injury or death. The deceased minor was on a personal trip, riding in the baggage car, at the time of a train collision which caused his death. The Supreme Court of Connecticut held that the pass was gratuitous and not a part of the consideration to induce the restaurant to open a lunch room in defendant’s stations and that the trip not being for the benefit of defendant, the stipulation avoiding liability was valid. The Griswold opinion, supra, was cited with approval by the Supreme Court in its Northern and Boering opinions." }, { "docid": "22566082", "title": "", "text": "railroad here could not have defeated liability in this case on the ground that the passes stipulated that the users would assume the risk of injury. The trial judge charged the jury, however, that because of opinions of this Court the pass exemption stipulation was valid and barred recovery “for just ordinary negligence.” The Circuit Court of Appeals affirmed on the basis of this Court’s Adams and Van Zant cases. 162 F. 2d 813, 816. The action of the two lower courts was in accordance with their interpretation of this Court’s opinions notwithstanding the fact that long ago the Utah Supreme Court, in declaring state law, rejected such a contention in the following language: “It is argued that even if the ticket was a free pass gratuitously possessed with the conditions printed thereon, still the defendant could not escape liability for its negligence. We believe the plaintiff is correct in this contention.” Williams v. Oregon Short Line R. Co., 18 Utah 210, 221, 54 P. 991, 994 (1898). See also Houtz v. Union Pacific R. Co., 33 Utah 175, 179, 93 P. 439, 441; Hansen v. Oregon Short Line R. Co.. 55 Utah 577, 581-582, 188 P. 852, 854. This Court has itself recognized and acted on the fact that it is the law of Utah that “when a common carrier accepts a person as a passenger, he is not permitted to deny that he owes to him the duty of diligence, prudence, and skill, which, as carrying on a public employment, he owes to all his passengers; and that he cannot escape liability for a negligent performance of that duty resulting in injury by urging that the pass or commission was issued, or the gratuitous passage permitted, by him, in violation of law.” Southern Pac. Co. v. Schuyler, 227 U. S. 601, 609-610. In the Schuyler case this Court sustained a Utah judgment under the Utah wrongful death statute, which judgment permitted recovery for death of a “gratuitous” passenger killed while riding free, although assuming he was not a member of a group to whom the carrier might lawfully" }, { "docid": "13394059", "title": "", "text": "a path which led away from the platform at its western end. In making the turn, his foot became entangled in a steel wire barrel hoop, which happened to be lying there. Struggling to free himself, he proceeded between ten or twenty feet, and then tripped and fell, after he had stepped down from the station platform. The train was then in motion, having started quite promptly upon his leaving it, and as he fell he turned in such a manner that the rear wheels of the coach he had just left passed over his left hand. The plaintiff in the District Court depended upon two items of negligence on the part of the railway company, and, the ease having been submitted on these issues to the jury, a verdict in his favor in the sum of $6,000 was rendered. He complained and now argues (1) that the company was negligent in permitting the steel hoop to obstruct the safe passage of persons over the platform, and (2) that the railway company negligently started the train before the plaintiff had an* opportunity to get away from it safely and without danger to himself. The defendant on its part at the trial below and in this court contended (1) that there was no evidence of negligence to justify the submission' of the case to the jury, and (2) that the relation of passenger and carrier did not exist between the parties at the time of the accident, and that therefore the only duty owed to the plaintiff was not willfully or wantonly to injure him. The second contention of the railway is based upon the admitted fact that the plaintiff presented for his passage a ticket which, as shown by a notice printed on the back, had already expired. It was argued on the part of the plaintiff that the defect in the ticket had been waived by its acceptance on this occasion by the conductor, representing the railway company. We do not find it necessary, however, to decide this question, because, even if we assume that the railway company owed" }, { "docid": "22804308", "title": "", "text": "& P. R. Co. v. Rector, 104 Ill. 296; Chicago & E. I. R. Co. v. Jennings, 190 Ill. 478, 483; 60 N.E. 818; Michie, Carriers (1915), §§ 2126, et seg. Yet the negligence of a passenger in going into a known place of danger without the inducement or invitation of the carrier may bar his recovery for the resulting injury, even though the passenger-carrier relationship has begun and continues. See Warner v. Baltimore & Ohio R. Co., supra; Daley v. Boston, R. B. & L. R. Co., 241 Mass. 78; 134 N.E. 376. And in the case of the insured, who had come upon the station platform intending to be a passenger, it may be that negligence in jumping uninvited onto the moving train would bar his recovery from the carrier without resort to the artificial assumption of a hiatus in that relationship during the brief interval' required for boarding the train. The notion of such a suspension of the passenger-carrier relationship has been rejected in allowing recovery upon policies insuring against injury while travelling as a “ passenger ” on a railway train, both where the passenger alighted from the train at an intermediate stop and was injured in attempting to return to the train after it started to move again, Wharton v. New York Life Ins. Co., 178 N.C. 135, 138; 100 S.E. 266, and where the insured, in beginning his journey, was injured in attempting to board a moving train. Fidelity & Casualty Co. v. Morrison, 129 Ill. App. 360. But it is unnecessary here to follow the niceties of legal reasoning and terminology applied in negligence suits against common carriers, for we are interpreting a contract and are concerned only with the sense in which its words were used. Farber v. Mutual Life Ins. Co., 250 Mass. 250, 254; 145 N.E. 535; Boyd v. Royal Indemnity Co., 120 Oh. St. 515, 517; 166 N.E. 580. The phraseology of contracts of insurance is that chosen by the insurer and the contract in fixed form is tendered to the prospective policy holder who is often without technical" }, { "docid": "19538052", "title": "", "text": "Chief Justice ROBERTS delivered the opinion of the Court. The Foreign Sovereign Immunities Act shields foreign states and their agencies from suit in United States courts unless the suit falls within one of the Act's specifically enumerated exceptions. This case concerns the scope of the commercial activity exception, which withdraws sovereign immunity in any case \"in which the action is based upon a commercial activity carried on in the United States by [a] foreign state.\" 28 U.S.C. § 1605(a)(2). Respondent Carol Sachs is a resident of California who purchased in the United States a Eurail pass for rail travel in Europe. She suffered traumatic personal injuries when she fell onto the tracks at the Innsbruck, Austria, train station while attempting to board a train operated by the Austrian state-owned railway. She sued the railway in Federal District Court, arguing that her suit was not barred by sovereign immunity because it is \"based upon\" the railway's sale of the pass to her in the United States. We disagree and conclude that her action is instead \"based upon\" the railway's conduct in Innsbruck. We therefore hold that her suit falls outside the commercial activity exception and is barred by sovereign immunity. I A Petitioner OBB Personenverkehr AG (OBB) operates a railway that carries nearly 235 million passengers each year on routes within Austria and to and from points beyond Austria's frontiers. OBB is wholly owned by OBB Holding Group, a joint-stock company created by the Republic of Austria. OBB Holding Group in turn is wholly owned by the Austrian Federal Ministry of Transport, Innovation, and Technology. Sachs v. Republic of Austria, 737 F.3d 584, 587 (C.A.9 2013). OBB-along with 29 other railways throughout Europe-is a member of the Eurail Group, an association responsible for the marketing and management of the Eurail pass program. Brief for International Rail Transport Committee as Amicus Curiae 12; 737 F.3d, at 587. Eurail passes allow their holders unlimited passage for a set period of time on participating Eurail Group railways. They are available only to non-Europeans, who may purchase them both directly from the Eurail Group and" }, { "docid": "22804307", "title": "", "text": "Ore. 322, 330; 171 Pac. 1169. The Court of Appeals thoüght that the evidence here would have made no case for the jury in a suit against the carrier, and therefore concluded that the trial judge should have directed a verdict for the insurer on the issue of double indemnity. No doubt intending passengers who are injured in attempting to board a moving train, unless they were invited to do so, are not usually entitled to recover from the carrier. But it is not clear that such cases turn on the existence or non-existence of the passenger-carrier relationship. See Atchison, T. & S. F. Ry. Co. v. Holloway, 71 Kan. 1; 80 Pac. 31. It has often been recognized that the relationship of carrier and passenger may arise and the duty of the carrier to the passenger attach when the latter comes upon the station platform and before boarding the train. See Warner v. Baltimore & Ohio R. Co., 168 U.S. 339; Atchison, T. & S. F. Ry. Co. v. Holloway, supra; Wabash, St. L. & P. R. Co. v. Rector, 104 Ill. 296; Chicago & E. I. R. Co. v. Jennings, 190 Ill. 478, 483; 60 N.E. 818; Michie, Carriers (1915), §§ 2126, et seg. Yet the negligence of a passenger in going into a known place of danger without the inducement or invitation of the carrier may bar his recovery for the resulting injury, even though the passenger-carrier relationship has begun and continues. See Warner v. Baltimore & Ohio R. Co., supra; Daley v. Boston, R. B. & L. R. Co., 241 Mass. 78; 134 N.E. 376. And in the case of the insured, who had come upon the station platform intending to be a passenger, it may be that negligence in jumping uninvited onto the moving train would bar his recovery from the carrier without resort to the artificial assumption of a hiatus in that relationship during the brief interval' required for boarding the train. The notion of such a suspension of the passenger-carrier relationship has been rejected in allowing recovery upon policies insuring against injury while" }, { "docid": "16423545", "title": "", "text": "manufacturer that employed seventy-five people in 2002. . Not only commercial shipping and passenger vehicles pass through Henning, but also passenger buses operated by Greyhound, Inc., shuttle between Memphis and Dyersburg (and to points further south and north). Additionally, active railroad tracks owned by the Illinois Central Railroad run parallel to U.S. Route 51 through Henning. Freight trains frequent these tracks and AMTRAK runs passenger service along this route, connecting Chicago to New Orleans, with stops in Dyers-burg to the north and Memphis to the south. Any fire emergency in Henning involving a bus or a train would require the assistance of the HFD. . We do not conclude in this opinion that because every community's PPC depends on the training and geographic distribution of fire companies, all fire stations are automatically used in an activity affecting interstate commerce. Given Congress’s explicit instruction that the application of § 844(i) depends on the specific circumstances of a particular fire station, we limit our analysis to the fire station in Henning. SUTTON, Circuit Judge, dissenting. “Some say the world will end in fire, Some say in ice.” Robert Frost, Fire and Ice, in The Poetry of Robert Frost 220 (Edward Connery Lathem ed., 2002). From what the 970 residents of Henning, Tennessee have seen of John Latón, their fire chief, one could certainly understand why they would “hold with those who favor fire.” Id. Yet the incompatibility of this crime with this alleged criminal merely serves as a prelude to other oddities of this case. Consider what happened after the fire chief set fire to the Henning Fire Station. While arson is a state-law felony in Tennessee, as in all States, neither the local prosecutors nor the Attorney General of Tennessee indicted this defendant. While the federal crime of arson applies just to property “used in” interstate commerce, 18 U.S.C. § 844(i), the National Government indicted this defendant for destroying a building that has a uniquely public, noncommercial and sovereign purpose. And while the United States acknowledged at oral argument that it was not aware of a single other prosecution under §" }, { "docid": "12941267", "title": "", "text": "261. In the Pinnell case, supra, a 19-year-old boy was killed in a train collision while riding as a free pass passenger. The Supreme Court of Missouri, applying federal law, held that the stipulation avoiding liability was valid; did not violate public policy; and, constituted a complete defense to the action. In the Griswold case, supra, a 17-year-old boy employed by a restaurant to sell sandwiches on defendant’s train, was furnished a free pass which provided that the holder assumes all risk of injury or death. The deceased minor was on a personal trip, riding in the baggage car, at the time of a train collision which caused his death. The Supreme Court of Connecticut held that the pass was gratuitous and not a part of the consideration to induce the restaurant to open a lunch room in defendant’s stations and that the trip not being for the benefit of defendant, the stipulation avoiding liability was valid. The Griswold opinion, supra, was cited with approval by the Supreme Court in its Northern and Boering opinions. The Pennsylvania Company and Flower opinions, supra, relied on by plaintiff, antedating, as they do, the Northern, Boer-ing and Francis cases, supra, cannot be considered as militating against the validity of the ruling hereinafter made. In the case at bar it is clearly* established that the passes issued to plaintiff’s decedents were without consideration except that contained in the “Conditions of Contract” printed on the reverse side thereof. True, plaintiff states that “one of the reasons for (his) accepting employment” with TWA was that he had been advised he “would be entitled to passes on TWA flights for myself and the members of my family.” Yet, there is no evidence in this record that tends to establish such a condition was ever made a part of plaintiff’s contract of employment with TWA, such as considered by the Court in Martin v. Greyhound Corporation, 6 Cir., 1955, 227 F.2d 501. Absent an affirmative agreement that such a condition was, expressly or impliedly, a part of plaintiff’s contract of employment, plaintiff’s singular understanding regarding the issuance of" }, { "docid": "19538053", "title": "", "text": "upon\" the railway's conduct in Innsbruck. We therefore hold that her suit falls outside the commercial activity exception and is barred by sovereign immunity. I A Petitioner OBB Personenverkehr AG (OBB) operates a railway that carries nearly 235 million passengers each year on routes within Austria and to and from points beyond Austria's frontiers. OBB is wholly owned by OBB Holding Group, a joint-stock company created by the Republic of Austria. OBB Holding Group in turn is wholly owned by the Austrian Federal Ministry of Transport, Innovation, and Technology. Sachs v. Republic of Austria, 737 F.3d 584, 587 (C.A.9 2013). OBB-along with 29 other railways throughout Europe-is a member of the Eurail Group, an association responsible for the marketing and management of the Eurail pass program. Brief for International Rail Transport Committee as Amicus Curiae 12; 737 F.3d, at 587. Eurail passes allow their holders unlimited passage for a set period of time on participating Eurail Group railways. They are available only to non-Europeans, who may purchase them both directly from the Eurail Group and indirectly through a worldwide network of travel agents. Brief for International Rail Transport Committee as Amicus Curiae 12-13, and n. 3; Brief for Respondent 4-5. Carol Sachs is a resident of Berkeley, California. In March 2007, she purchased a Eurail pass over the Internet from The Rail Pass Experts, a Massachusetts-based travel agent. The following month, Sachs arrived at the Innsbruck train station, planning to use her Eurail pass to ride an OBB train to Prague. As she attempted to board the train, Sachs fell from the platform onto the tracks. OBB's moving train crushed her legs, both of which had to be amputated above the knee. 737 F.3d, at 587-588. Sachs sued OBB in the United States District Court for the Northern District of California, asserting five causes of action: (1) negligence; (2) strict liability for design defects in the train and platform; (3) strict liability for failure to warn of those design defects; (4) breach of an implied warranty of merchantability for providing a train and platform unsafe for their intended uses; and" }, { "docid": "14235497", "title": "", "text": "the station at a time when no train was scheduled to stop is dispositive here, since the appropriateness of Joseph’s expectations can be determined by the jury when it decides whether there was “actual or implied consent of the carrier” (a requirement common to IPI 100.09, the plaintiffs modified instruction and the holding in Skelton) to stand on the platform in preparation for boarding a train. Here the station was likely un-staffed and there was no schedule posted. Joseph had called the night before for the schedule, which information he interpreted in light of his many years of familiarity with the local train service. At, say, an abandoned station with no service at all, Amtrak perhaps should not be expected to account for the safety of those individuals who have no reason to expect a train to come and stop for them. Given the facts at hand, however, we believe that there is an open factual question as to the “actual or implied consent” of the railroad. In all other respects, we believe that Joseph met the Illinois legal definition of “passenger.” The jury instruction submitted by the plaintiff was an appropriate one under these particular circumstances, and IPI 100.09 was an inadequate statement of the law. The court also refused to give IPI 100.15, regarding the duty of common carriers to select safe boarding places, based on the defendants’ argument that IPI 100.15 does not apply to trains, whose stations are in fixed places, but rather applies only to conveyances, such as taxis or streetcars, on which the operator has discretion where to discharge or pick up a passenger. The defendants cite Davis, which states that a railroad does not have an elevated duty of care with regard to maintenance of its stations. However, as we noted above, Davis does not govern accidents which involve the motion of the train, but speaks more to those possible conditions of a station facility that are no different and no more dangerous than similar conditions in any other public space (e.g., a banana peel on a staircase). The defendants also note, accurately," }, { "docid": "16982729", "title": "", "text": "white. Plaintiff remained employed by Defendant until his suspension on August 16, 1995, and subsequent termination effective January 26, 1996. Amtrak provides free and reduced travel rates for its employees, their spouses, and their dependent children. Plaintiff was issued a rail travel privilege pass (“rail pass”), which allowed Plaintiff and his authorized dependents to ride for free on certain Amtrak passenger trains. Upon receipt of the rail pass, Plaintiff received written instructions setting forth the “Conditions of Use” of his rail pass. (Def. Ex. 4, Turner dep. at 188-188). According to the Conditions of Use “[it is] an Act of Larceny to Abuse your pass privilege or for anyone to willfully permit its misuse.” On August 16, 1995, due to an approaching hurricane, Amtrak’s long distance service south from New York was canceled. This required Amtrak to re-route passengers traveling southward. In order to assist passengers, Amtrak’s Manager of Customer Service at the Albany / Rensselaer Station, William Hollister, reviewed the passenger manifests for trains that left Albany earlier that day. While reviewing the manifests, Hollister noticed Plaintiffs name listed as a passenger on a train en route from Albany, New York to New York City, and then on to South Carolina. Knowing that Plaintiff was scheduled to work that day, Hollister wondered who was traveling under Plaintiffs rail pass. Hollister called New York and requested that the group of passengers traveling under Plaintiffs rail pass be escorted to Amtrak’s customer service office in New York’s Penn Station upon their arrival. Amtrak investigated Plaintiff for alleged violations of Amtrak’s Rules of Conduct. On August 21, 1995, Amtrak specifically alleged that Plaintiff “permitted and assisted unauthorized individuals to use [his] Rail Travel Privileges to obtain transportation on Amtrak resulting in a loss of revenue for the corporation.” (Defendant’s exhibit 11-13). On November 9, 1995, an administrative hearing was convened by a hearing officer in Amtrak’s Office of Disciplinary Investigations concerning the alleged administrative charges against Plaintiff. The case against Plaintiff involves three instances of unauthorized travel. The hearing resulted in a finding that Plaintiff abused his Rail Travel privileges, defrauding Amtrak" }, { "docid": "13394060", "title": "", "text": "train before the plaintiff had an* opportunity to get away from it safely and without danger to himself. The defendant on its part at the trial below and in this court contended (1) that there was no evidence of negligence to justify the submission' of the case to the jury, and (2) that the relation of passenger and carrier did not exist between the parties at the time of the accident, and that therefore the only duty owed to the plaintiff was not willfully or wantonly to injure him. The second contention of the railway is based upon the admitted fact that the plaintiff presented for his passage a ticket which, as shown by a notice printed on the back, had already expired. It was argued on the part of the plaintiff that the defect in the ticket had been waived by its acceptance on this occasion by the conductor, representing the railway company. We do not find it necessary, however, to decide this question, because, even if we assume that the railway company owed to the plaintiff all the duties which such a carrier owes to passengers on its premises, the evidence does not show negligence on the part of the railway company, but rather that the unfortunate accident which the plaintiff suffered was brought about by a circumstance for which it had no responsibility in law. The parties to the cause agree that the duty which a carrier owes to passengers on its premises, as distinguished from passengers on its trains, is to exercise reasonable or ordinary care for their safety, and, amongst other things, to provide and maintain safe and adequate platforms and stations for their use in waiting for approaching and leaving trains. See 10 Corpus Juris, §§ 1337, 1340-1342; Taylor v. Pennsylvania Railroad (C. C.) 50 F. 755. And so, if a passenger is injured upon a station platform by an obstacle which the carrier has negligently failed to remove, he is ordinarily entitled to recover damages. However, in such eases, as is usually true where a charge of negligence is involved, the liability depends" }, { "docid": "14235464", "title": "", "text": "CUDAHY, Circuit Judge. Loretta Aliotta, widow and executor of the estate of Joseph Aliotta, appeals an adverse judgment in a wrongful death lawsuit against the National Railroad Passenger Corporation (Amtrak), the Illinois Central Railroad Company (IC) and Gary Gilmer, an Amtrak engineer. A jury verdict was entered against her in the Northern District of Illinois after the case was removed to federal court by Amtrak. Loretta argues that she was unfairly prejudiced by certain rulings on evidence and jury instructions. Finding critical jury instructions to be inadequate statements of Illinois law, we reverse and remand for a new trial. I. Joseph Aliotta, a 69 year-old former nurse’s aide, lived with his wife Loretta in Watseka, Illinois, a town just south of Kankakee near the Amtrak route between Chicago and Carbondale. Two to three times a year for about fifteen years, Joseph would take the train north from nearby Gilman to Chicago to visit his sisters. Two passenger trains operate northbound between Gilman and Chicago, an evening local train from Carbondale to Chicago and a morning express train which originates in New Orleans. In late 1996, Amtrak changed its schedules, and the express train no longer stopped at Gilman. On July 30, 1997, Joseph Aliotta called Amtrak to find out when the train to Chicago would be at Gilman station, and was told 7:30. Unfortunately for Joseph, this turned out to be the scheduled stop for the evening train. Doubly unfortunately for Joseph, the morning train would pass through Gilman almost precisely twelve hours earlier, but without stopping. On the morning of July 31, Loretta drove her husband to the Amtrak station. After standing with him for a while on the platform, she went back to her car and waited for him to board the train. The train came and passed, without stopping, and she found Joseph dead about 180 feet down the tracks from the platform. What exactly happened to Joseph was a matter of dispute at the trial. Witnesses for the plaintiff said that Joseph was standing on an “island platform” along which the train whizzed by, suggesting that" }, { "docid": "22804304", "title": "", "text": "6th); Aetna Life Ins. Co. v. Davis, 191 Fed. 343 (C.C.A. 8th); Preferred Accident Ins. Co. v. Muir, 126 Fed. 926 (C.C.A. 3d); compare Fidelity & Casualty Co. v. Morrison, 129 Ill. App. 360. The policy provided for payment of a specified amount in case of loss of life of the insured resulting from accidental bodily injury and for payment of double that amount “if such injury is sustained by the insured (1) while a passenger in or on a public conveyance (including the platform, steps or running board thereof) provided by a common carrier for passenger service.” The insured, who had in his possession a ticket entitling him to transportation, arrived at the railroad station platform just as the train started to move out of the station. There was testimony from which the jury might have found that, while the train was moving at a speed of seven to ten miles an hour but was still within the station and opposite the platform, with vestibule doors open, the insured jumped onto the lower step of a car, his hand grasping the handrail, and that he continued for a brief time, while the train moved about twenty feet, to stand with both feet upon the step but with a small part of his body or clothing projecting beyond or outside the vestibule until it brushed against a bystander on the platform in a manner causing the insured to lose his hold and fall to his death. The trial judge instructed the jury that if the.insured held a ticket entitling him to ride as a passenger, and in attempting to board the train while in motion he stood with both feet upon the step, he was a passenger and entitled to recover under the double indemnity clause. The only question which it is necessary .to decide here is whether the insured was a “ passenger ” at the time of the accident within the meaning of the policy. The Court of Appeals ruled that he was not; it reached this conclusion by applying the term as it was said to be" }, { "docid": "22150139", "title": "", "text": "therefore the acts of the individuals in throwing the timber were acts which were performed with the authority of the defendant. The act would be performed with the authority of the defendant, if, being aware of the custom, the defendant or its agents permitted such acts and made no effort to prevent their performance and issued no orders forbidding them. If the jury should also find that the act was one of a dangerous nature, from which injury to an individual on the roadside might reasonably be expected, then the jury might find the defendant guilty of a neglect of duty in permitting its performance. \"We do not think the case of Snow v. Fitchburg Railroad, 136 Mass. 552, can be distinguished from this case by reason of the simple fact that the person injured was. a passenger who was at the station and upon the platform where the mail bag was thrown. It may be true the defendant owes a higher duty to its passengers, in the shape of a greater degree of care, than it does to the public generally, but it is a question only of degree. It owes a duty to the public not to injure any one negligently, and the- facts in this case make it a question for the jury to say whether it has not been guilty of negligence resulting in plaintiff’s injury. Considerable stress was laid upon the case of Walker v. Hannibal & St. Joseph Railroad, 121 Missouri, 575, as an authority against the principle which we have above referred to. W'e have examined that case and regard the facts therein set forth as so materially different that the case cannot be regarded as opposed to the views we have, stated. The'bag-gagemaster in gratuitously taking in his car the drills (not properly baggage) which he threw out at the station as he passed through, was held not to have been acting within the scope of his employment, and as there was no proof of knowledge on the part of the railroad authorities, it was held that the railroad company was not" }, { "docid": "21238583", "title": "", "text": "the freight station I receive and forward freight shipments, arrange for delivery of the same, and perform the necessary paper work with respect to the preparation of freight receipts, bills of lading, etc. In my work at the passenger station I sell passenger tickets. Only a small portion of my time is spent in connection with passenger traffic and ap proximately 90% of my duties involve the handling of freight. “The freight and passenger stations at Spring Valley in which I work are used not only by the trains of the Erie Railroad Company but also by the trains of The New Jersey and New York Railroad Company (Horace Banta, Trustee). In the course of my work, on instructions from my employer, Erie Railroad Company, I handle not only freight shipped via the Erie Railroad Company but also freight shipped via The New Jersey and New York Railroad Company. Likewise, passenger tickets are sold by me to passengers using the New Jersey and New York Railroad as well as to passengers using the Erie Railroad. “I understand that there is an arrangement between my employer, Erie Railroad Company, and the Trustee of The New Jersey and New York Railroad Company under which the latter pays my employer for part of the expenses of maintenance of the station facilities at Spring Valley, including my salary.” I do not think that these allegations overcome the flat statement that Angyal is the person in charge of the Trustee’s business in the State of New York. There is nothing improbable in that statement. The defendant Trustee has his office in New Jersey so that the railroad is directed from that state and there is no need for a special superintendent for the operation of the small part of the mileage which lies in New York. There is no reason to believe that the station agents at the other two New York stations, Nanuet and Pearl River, have any more exalted status than that of Angyal. Indeed, the probabilities are that they are the three permanent representatives of the Trustee in the State of New" }, { "docid": "14235495", "title": "", "text": "many cases cited in Katamay is that most of those involved passengers getting off trains or about to board trains that had already pulled into the station and stopped. The problem here, of course, was precisely that the train did not stop. There is at least one Illinois case in which a train failed to stop, Skelton v. Chicago Transit Authority, 214 Ill.App.3d 554, 158 Ill.Dec. 130, 573 N.E.2d 1315 (1991). Joseph Skelton was waiting for a CTA train at a station (what is now the Oak Park stop on the Blue Line) late at night, when a train passed without stopping. Frustrated, he attempted to flag down the next train, which was not slowing down to stop, and fell onto the tracks. The accident resulted in the amputation of his arm. The facts in that case are similar to those in the present one not only because both Josephs were unable to buy a ticket beforehand (the CTA station was unstaffed and a sign instructed riders to buy then-ticket on board, just as we are led to believe the Amtrak station was unstaffed), but also because neither Joseph had a meaningful opportunity to try to board his respective train. The Illinois Appellate Court noted in Skelton that “Illinois courts have long held that a contractual relationship between passenger and carrier begins when the passenger has presented himself at the proper place to be transported with the intention of becoming a passenger and is then either expressly or impliedly accepted by the carrier for transportation.” Id. at 1328. The fact that the train would not and did not stop, and therefore, that the act of becoming a passenger — if that is what it was — could not be “completed” does not seem determinative of anything. “Passengers” waiting on platforms for one train are frequently passed by other trains traveling at high speeds (which they obviously cannot board). There is no good reason why this change in the identity of the danger-laden vehicle should alter their status. Further, we do not believe that the fact that Joseph Aliotta was at" } ]

[ { "docid": "22057343", "title": "", "text": "this court •had practically decided its validity against the plaintiffs in error in Wright v. Railroad Co., 195 U. S. 219. But, as we have seen,-the Supreme Court of Georgia has expressly eliminated the element of bad faith in the taxpayer from the findings upon which its decision rests. The Wright case was held not to have concluded the contention that plaintiffs were denied' the equal protection of the laws, in that no other person or corporation in Georgia was assessed upon stock in a foreign corporation, nor the validity of the claim that the stock was not held in Georgia, nor other grounds alleged in the petitions, except so far as the Georgia Railroad was concerned- for the year 1900. 124 Georgia, 607. We must • decide the case in view of its relations to a taxpayer not fraudulently concealing his property and honestly contending, with reasonable grounds for tha contention, that it is not taxable -under the laws of the State. As we have seen, the system provided in Georgia- by the statutes of the State as construed by its highest court requires of the taxpayer that he return all his property, whether its liability is fairly contestable or not, upon pain of an ex parte valuation, against which there is no relief in the tax proceédings or in the courts, except in those cases where fraud or corruption can be shown in the action of the assessing officer. Reluctant as we are to interfere with the enforcement of the tax laws of a State, we are constrained to the conclusion that this system does not afford that due process of law which adjudges upon notice and opportunity to be heard, which it was the intention of the Fourteenth Amendment to protect against impairment by state action. The judgments of the Supreme Court of Georgia are reversed and the cases remanded for further proceedings not inconsistent with this opinion. Sec. 804. Returns to comptroller, how made.—The returns of all companies, or persons, required to be made to the comptroller-general must be in writing and sworn to, by the" } ]

[ { "docid": "15760620", "title": "", "text": "decided before the daté of the present constitution, that stock in railroads outside the State was not taxable in Georgia, the reason offered being that such stock is really but so many shares of the railroad’s property, and that that property is real estate, for the most part at least, and taxable by the State in which the road lies. Wright v. Southwestern Railroad, 64 Georgia, 783, 799. This reason is shown by later decisions to be an insufficient ground for a claim of constitutional right, and the language of the case probably does not represent' adequately the present opinion of the Supreme Court, although the passages are cited in the later of the two following cases. Georgia State Building and Loan Association v. Savannah, 109 Georgia, 63, 69; Peoples’ National Bank v. Cleveland, 117 Georgia, 908, 913, 915. If we look to the construction adopted by the Legislature there is no doubt as to that. The Code, after defining personalty as property movable in its nature, continues “stocks representing shares in. an incorporated company holding lands, or a franchise in or over lands, are personalty.” § 3070. The act of 1884-1885, touching returns of property for taxation, No. 457, § 2, p. 30, enacted in terms \"that personal property shall be construed, for purposes of taxation, to include . . . all stocks and securities, whether in corporations within this State or in other States, owned by citizens of this State, unless exempt)” etc. It is argued on one side and denied on the other that this section was repealed by the Code, but whether it was or not, it equally may be invoked for the purpose of interpretation at least. We do not understand and cannot believe that the Supreme Court of the State would deny the power of the Legislature under the present Constitution to tax stock. The argument against the tax is that the constitution of Georgia is satisfied if all the lands and goods in the State are taxed once, and that the appearance of the same capital in two forms technically distinct ought not" }, { "docid": "11471701", "title": "", "text": "that this construction accords with the intent of the charter. Aside from at least sixty years of legislative and executive acquiescence in reading this pai’tial exemption as applicable to; the capital stock of the company, there has been a series of 'cases'decided by the Supreme Court of Geoz'gia which involved the meaning of this clause. In each case the court has held, either, that the whole of the capital was exempt in whatever form invested, or so much of the investment 'as coiTesponded in value to the authorized - capital stock. City of Augusta v. Georgia Railroad & Banking Company, 26 Georgia, 651, 662 et.seq.; The State of Georgia v. Georgia Railroad & Banking Company, 54 Georgia, 423; Goldsmith, Comptroller &c., v. Georgia Railroad & Banking Company, 62 Georgia, 485. In the case of State of Georgia v. The Georgia Railroad & Banking Company, cited above, the court held that the act of 1874, which sought to assess an ad valorem ’tax against the property of the railroad' company was void, as in violation -.pf th.e obligation of a contract by which the State was limited to a tax which should not exceed one per cent “on its earn- inga.” Goldsmith, Comptroller, v. The Georgia Railroad & Banking Company is relied upon as overruling the earlier case. .But this is a mistake for more than one reason. That case was dismissed for want of jurisdiction over the subject of the legality or illegality of the tax resisted. Hence, all that was said about the taxability of the appellee’s property under (his charter exemption was obiter. But so far as the question of the applicability of this partial exemption to the capital of the company as invested in its railroad is concerned, the opinion distinctly accepts the former case as a settlement of the question. . Referring to the former case, Mr. Justice Bleckley said: “It seems to have been the purpose of this court to hold in 54 Georgia, 423, that except as to stock issued under the amendment of 1868 authorizing the Ólayton branch, the limit put by the" }, { "docid": "1998882", "title": "", "text": "to institute ctiminal proceedings under an unconstitutional act, which will seriously affect property rights, is no longer an open question. Such actions have been frequently brought and sustained. Wilson v. New, 243 U. S. 332, 37 Sup. Ct. 298, 61 L. Ed. 755, L. R. A. 1917E, 938, Ann. Cas. 1918A, 1024; Hammer v. Dagenhart, 247 U. S. 251, 38 Sup. Ct. 529, 62 L. Ed. 1101, 3 A. L. R. 649, Ann. Cas. 1918E, 724; United States v. L. Cohen Grocery Co., 255 U. S. 81, 41 Sup. Ct. 298, 65 L. Ed.-, are among late cases. Nor can there be any doubt at. this day that an order of a board, commission, or executive officer-, prescribing maximum rates for services performed, if no provisions for a review by the courts is made, entitles one who claims the rates to be confiscatory to a review by a court of equity, and especially if the penalties for violations of the order or regulation are so severe that every one would be deterred from testing them in a criminal prosecution. Ex parte Young, 209 U. S. 123, 147, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764; Missouri Pacific Ry. v. Tucker, 230 U. S. 340, 349, 33 Sup. Ct. 961, 57 L. Ed. 1507; Wadley Southern Ry. v. Georgia, 235 U. S. 651, 662, 35 Sup. Ct. 214, 59 L. Ed. 405; Oklahoma Operating Co. v. Love, 252 U. S. 333, 337, 40 Sup. Ct. 338, 340 (64 L. Ed. 596). In the last-cited case, the court even went so far as to hold that— “If upon final hearing the maximum rates fixed should be found not to bo eonfivaiory, a permanent injunction should nevertheless Issue io ro-'-'n’ln enforcement of penalties accrued pendente lile, provided that 5t also be found that plaintiff had reasonable ground to content them as being confi*catory.” In Wadley Southern Ry. v. Georgia, supra, the railroad company, instead of applying to a court of equity for relief, against an order of Ae Railroad Commission of the" }, { "docid": "11471705", "title": "", "text": "the case went off wholly upon the question as to whether'the trial court had any jurisdiction of the question, and the opinion, after construing the clause hero involved, passed on to this matter as to whether the uestion could be made under the statutory remedy resorted ) by the company, and concluded by holding that whether die railroad company had been taxed illegally or not, the court below ought to have dismissed the proceeding for want of jurisdiction, and that the remedy, if any, was by bill in equity. Accordingly the judgment which the Supreme Court entered was. one which reversed the judgment below and directed' that the proceeding be dismissed for want of jurisdiction.. This judgment in no way involved the construction of this exemption contract, nor the liability of the Georgia Railroad Company to taxation upon its property, or otherwise, and does not therefore have any efficacy as -an estoppel. Then' was therefore no error in the ruling of the Circuit Court that this plea was bad. Upon the other hand, when the plea of estoppel just disposed of came in, the complainants amended their bill and set up the judgment in the earlier case of the State of Georgia v. The Georgia Railroad & Banking Company, 54 Georgia, 423, as au adjudication concluding not only the claim that the exemption was ouly of the shares in the hands of shareholders, but as an adverse decision of this claim that only so much of the “investments” of the company were exempt from a general ad valorem tax as equalled.in value the authorized capital stock of the company under the charter and amendments prior to 18(53. But in Georgia Railroad Banking Company v. Wright, 124 Georgia, 596, the Supreme Court of Georgia seems to have definitely decided that a judgment in a suit to collect a tax assessed for one year is not a bar to a suit for taxes subse-quenlly assessed for another year, although the question decided in the first case, is the same question upón which the second suit must be also decided. . This court," }, { "docid": "22733136", "title": "", "text": "case of New Orleans v. Citizens’ Bank, 167 U. S. 371. That was a tax suit, and the issue was whether the judgment of a court of competent jurisdiction, in holding that the Citizens' Bank had exemption by contract from certain taxation, was res judicata and estopped the city from attempting to enforce subsequent taxes contrary to the same exemption. The Court, through Mr. Justice White, said (p. 396): “ The proposition that because a suit for a tax of one year is a different demand from the suit for a tax for another, therefore res judicata can not apply, whilst admitting in form the principle of the thing adjudged, in reality substantially denies and destroys it. The estoppel resulting from the thing adjudged does not depend upon whether there is the same demand in both cases, but exists, even although there be different demands, when the question upon which the recovery of the second demand depends has under identical circumstances and conditions been previously concluded' by a judgment between the parties or their privies.” This is not the rule in a number of the States. City of Newport v. Commonwealth, 106 Ky. 434; Louisville Bridge Co. v. City of Louisville, 81 Ky. 189; Bank v. Memphis, 101 Tenn. 154; State v. Bank, 95 Tenn. 221, 231; Georgia Railroad & Banking Co. v. Wright, 124 Ga. 596, 603; Michigan Southern, etc. R. R. v. People, 9 Mich. 448, 450; L. S. & M. S. R. R. v. People, 46 Mich. 193, 208; C. B. & Q. R. R. v. Cass County, 72 Neb. 489, 491; Adams v. Yazoo & Miss. R. R., 77 Miss. 194, 266; State v. American Sugar Refining Co., 108 La. 603. Judge Cooley in his work on Taxation, 8th ed., says, at pages 2648-9, that the state courts, differing from, this Court, do not generally regard an adjudication as' to taxes, for one year as making the decision of the supporting points res judicata for the following years. We have held that where, in a federal court, a judgment of a state court in a tax" }, { "docid": "21347502", "title": "", "text": "of opinion that it was ample to sustain a verdict for plaintiff, we hold untenable defendant’s repeated contention that it was entitled to the peremptory instruction, Defendant also contends that section 7.051, Compiled General Laws of Florida, which undertakes to create the presumption of negligence as against railroad companies upon proof of injury, and which the trial court applied in this case, is unconstitutional because it violates the due process and equal protection clauses of the Fourteenth Amendment. That section and the one following it, which provides for diminution of damages in cases of contributory negligence, are copied in the former opinion in this case; and also in Kirch v. Atlantic Coast Line R. Co. (C. C. A.) 38 F.(2d) 963, where we rejected the same contention. The Supreme Court held in Seaboard Air Line Railway Co. v. Watson, 287 U. S. 86, 53 S. Ct. 32, 77 L. Ed. 180, 86 A. L. R. 174, that section 7051 did not violate the equal protection clause of the Fourteenth Amendment; and in Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 31 S. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463, that the Mississippi statute, which provides that proof of injury inflicted by the running of locomotives or cars of a railroad company shall be prima facie evidence of negligence, violated neither the equal protection nor the due process clause of that amendment. Section 7051, as construed by the Florida Supreme Court, has the same meaning, in so far as is here material, as the Mississippi statute; and, although it was copied from a Georgia statute, the case of Western & Atlantic R. R. v. Henderson, 279 U. S. 639, 49 S. Ct. 445, 447, 73 L. Ed. 884, is not in point because the ruling there was that, as construed by the Georgia decisions, the statute '‘creates an inference that is given effect of evidence to be weighed against opposing testimony, and is to prevail unless such testimony is found by the jury to preponderate.” The" }, { "docid": "15760619", "title": "", "text": "the United States is concerned, but it is argued that the State has not attempted to use that power by its present constitution and laws. The constitution of Georgia provides that “ all taxation shall be uniform upon the same class of subjects, and ad valorem, on all property subject to be taxed within the territorial limits of' the authority levying the tax, and shall be levied and collected under general laws.” Code of 1895, § 5883. The words “within the territorial limits” plainly qualify “subject to be taxed.” The constitution further makes void all laws exempting. property from taxation, other than the property therein enumerated, which does not include this stock. § 5886. Following these requirements the General Tax Act for 1899 and 1900, Laws of 1898, No. 150, §§ 1, 2, p. 22, authorizes a tax on all of the taxable property of the State. The natural inference from the foregoing language is that the Comptroller General was bound to collect this tax. It is true that it was said,, in a case decided before the daté of the present constitution, that stock in railroads outside the State was not taxable in Georgia, the reason offered being that such stock is really but so many shares of the railroad’s property, and that that property is real estate, for the most part at least, and taxable by the State in which the road lies. Wright v. Southwestern Railroad, 64 Georgia, 783, 799. This reason is shown by later decisions to be an insufficient ground for a claim of constitutional right, and the language of the case probably does not represent' adequately the present opinion of the Supreme Court, although the passages are cited in the later of the two following cases. Georgia State Building and Loan Association v. Savannah, 109 Georgia, 63, 69; Peoples’ National Bank v. Cleveland, 117 Georgia, 908, 913, 915. If we look to the construction adopted by the Legislature there is no doubt as to that. The Code, after defining personalty as property movable in its nature, continues “stocks representing shares in. an incorporated company" }, { "docid": "15760618", "title": "", "text": "Mr. Justice Holmes delivered the opinion of the court. This case comes here on certiorari to the Circuit Court of Appeals, that court having affirmed, per curiam, a decree of' the Circuit Court enjoining the Comptroller General of Georgia from collecting a tax for the year 1900. 116 Fed. Rep. 669; 117 Fed. Rep. 1007. Ip view of the conclusion to which we have been driven, it is enough to say that the question presented is whether shares of stock in the Western Railway of Alabama, an Alabama corporation, held by the Georgia Railroad and Banking Company, a Georgia corporation, are taxable as property of the latter, by the State of Georgia, under its constitution and statutes.' The respondents, the plaintiifs below, are lessees of the Georgia corporation and are bound to reimburse the latter for the tax, if it has to be paid. Taking into account the decision in Kidd v. Alabama, 188 U. S. 730, the power of the State to tax the shares is not denied, so far as the Constitution of the United States is concerned, but it is argued that the State has not attempted to use that power by its present constitution and laws. The constitution of Georgia provides that “ all taxation shall be uniform upon the same class of subjects, and ad valorem, on all property subject to be taxed within the territorial limits of' the authority levying the tax, and shall be levied and collected under general laws.” Code of 1895, § 5883. The words “within the territorial limits” plainly qualify “subject to be taxed.” The constitution further makes void all laws exempting. property from taxation, other than the property therein enumerated, which does not include this stock. § 5886. Following these requirements the General Tax Act for 1899 and 1900, Laws of 1898, No. 150, §§ 1, 2, p. 22, authorizes a tax on all of the taxable property of the State. The natural inference from the foregoing language is that the Comptroller General was bound to collect this tax. It is true that it was said,, in a case" }, { "docid": "22057331", "title": "", "text": "section 814 it is provided that ‘ in all cases of default of payment of taxes upon returns or assessments., the comptroller-general shall enforce collections in the manner now provided by law.’ ‘If any corporation, company, person, agency, or institution, who are required to make their returns to the comptroller-general, shall fail to return the taxable property or specifics, or pay annually the taxes for which they are liable to the state treasury, the comptroller-general shall issue against them an execution for the amount of taxes due, according to law, together with the cost and penalties.’ Section 874.. ‘ When there is no return by which to assess the tax,, the comptroller-general shall, from the best information he can procure, assess in his discretion.’ Section 879. These sections of the Political Code are thus set out in order that we may have before us at the outset the various statutes bearing on the power of the comptroller-general to collect taxes on property which has not been returned. And at this point we will take occasion to say that in our opinion all considerations of-the good faith of the railroad company should be eliminated from this discussion. It may be conceded that the officials of the company honestly believed that this stock, was not taxable, and that there has never been on their part the slightest effort to conceal the Georgia Railroad’s ownership of it, or to deceive the comptroller-general in any way. In no jurisdiction has the maxim ‘ Ignorantia legis nerni- ■ nem eAcusat’ been more* rigidly applied than in Georgia. The railroad company was bound to know that this stock was • taxable, and its mistaken, though honest, belief to the contrary furnishes no excuse for non-payment.” In view of this statute as thus construed the question made is, whether due process of law is afforded where a taxpayer, without fraudulent intent and upon reasonable grounds, withholds property from tax returns with an honest belief, that it is' not taxable, and the assessing officer proceeds to assess the omitted property without opportunity to the taxpayer to be heard" }, { "docid": "22057326", "title": "", "text": "Georgia and there affirmed. 125 Georgia, 589, 617. The question of the taxability of these shares was a matter of litigation in the Federal courts of the Georgia District, and it was held such shares were not taxable. 116 Fed. Rep. 669 affirmed in the Court of Appeals, 117 Fed. Rep. 1007. The latter case was reversed and the stock held taxable'in the case of Wright v. Louisville & Nashville Railroad Company, decided by this court at the October term, 1904. 195 U. S. 219. Thereupon says the Supreme Court of Georgia (124 Georgia, 612):. “ On January 27, 1905, the comptroller-general wrote to the president of the Georgia Railroad and Banking Company the following letter: ‘The Supreme Court of the United States having recently held, as you doubtless are aware, that the shares of stock of the Western Railway of Alabama owned by the Georgia Railroad and Banking Company are taxable in Georgia, it becomes my duty to assess these shares of stock for taxation if or each of the years in which they are in default for their taxes. This assessment is required to be made by the comptroller-general from “the.best information obtainable.” I desire to proceed to the discharge of this duty intelligently, and therefore respectfully request yop to furnish me any data in your possession which will enable me to make perfectly fair, just, and legal assessments of this property. From your long connection with the property as president of the Georgia Railroad and Banking Company, and , your familiarity with-its value, you doubtless are in possession of information which will very greatly aid me in making an equitable assessment of the property. I trust, therefore, you will submit at your earliest possir ble convenience any facts or suggestions bearing upon, this line which you may deem proper. I would be glad to have any data which you may submit with reference to its value for each year, beginning with the year 1883, the year I am informed your corporation became the owner of these shares of stock. I expect to proceed with this matter some" }, { "docid": "22057332", "title": "", "text": "to say that in our opinion all considerations of-the good faith of the railroad company should be eliminated from this discussion. It may be conceded that the officials of the company honestly believed that this stock, was not taxable, and that there has never been on their part the slightest effort to conceal the Georgia Railroad’s ownership of it, or to deceive the comptroller-general in any way. In no jurisdiction has the maxim ‘ Ignorantia legis nerni- ■ nem eAcusat’ been more* rigidly applied than in Georgia. The railroad company was bound to know that this stock was • taxable, and its mistaken, though honest, belief to the contrary furnishes no excuse for non-payment.” In view of this statute as thus construed the question made is, whether due process of law is afforded where a taxpayer, without fraudulent intent and upon reasonable grounds, withholds property from tax returns with an honest belief, that it is' not taxable, and the assessing officer proceeds to assess the omitted property without opportunity to the taxpayer to be heard upon the validity of the tax or the amount of the assessment, either in the tax proceedings or afterward upon a suit to collect taxes, or by independent suit to enjoin their collection. Considerable discussion was had in the oral argument of the case concerning the effect of the rulings of the Supreme Court of Georgia in construing the sections of the Political Code governing this subject. . A perusal of the opinions delivered in these cases leaves no doubt in our minds that the Supreme Court of Georgia has held the taxing scheme of the State of Georgia, as laid down in its. statutes, to be that, while it provides for a method of valuation in case of the return of. property for taxation, it does not in tend to give to the taxpayer who fails to return property legally liable to be assessed any opportunity to be heard as to the value of the property or the amount of the assessment. But the failure to return places it within the power and duty" }, { "docid": "22057339", "title": "", "text": "be. open to the taxpayer, but if for good reason the taxpayer contests the taxability, of his property and does not return it the door of opportunity is closed upon him'. As in the present case, courts may differ as to the taxable character of the property, but the taxpayer must concede, its taxability, or be forever concluded by a determination of its value judicial in its nature (Hager v. Reclamation District, 111 U. S. 701, 710) in a proceeding where he has no. legal right to a hearing. But it is contended that plaintiffs in error had an opportunity to be heard, and were in fact heard, upon the question of the value of their property upon an issue made by an amendment to the answer in the Superior Court, after the case went back from the Supreme Court, tendering an issue and asking the court to pass upon the value of the property. Upon this subject we think the decision of the Supreme Court does not leave in doubt the effect 'of such hearing upon this issue. For it is said (125 Georgia, 605): “ As to those years in which the plaintiff had an opportunity to return its property for taxation and failed to do so, and for which the property has been assessed by the comptroller-general, whether the property has been excessively assessed cannot now be inquired into. Under the former ruling in this case it is concluded by the failure to return the property at the time required by law, and must bear the burden of the assessment made in conformity to law. There was neither averment nor proof that the assessment was the result of fraud or corruption on the part of the comptroller-general. If there had been, a different .question would have been presented.” And further in the same opinion (125 Georgia, 616): “The plaintiffs contend that the valuation placed by the comptroller-general' upon the stock was excessive. ' The defendant contended that, as the plaintiff was a defaulter, the valuation of the comptroller-general was conclusive untier the slaw. . In an amendment" }, { "docid": "14745206", "title": "", "text": "that he could recover back by suit a tax illegally assessed and collected. But it is not contemplated by any provision of law that one who is forced to pay an illegal penalty can recover it back by suit. Nor is it the law that a penalty as such is collectible by distraint proceedings. Section 3213 (Comp. St. § 5937) makes it the duty of collectors to sue for the collection of penalties and forfeitures, and opportunity is thus afforded for a hearing and defense. The fact that section 35 of the act does not provide for notice is persuasive that it was intended to assess penalties, to be enforced in the usual way by fine or by suit. If it had been intended to assess taxes, no doubt a requirement of notice before distraint, levy, and sale would have been provided in order to give opportunity to be heard. In Central of Ga. Ry. Co. v. Wright, 207 U. S. 127, 28 Sup. Ct. 47, 52 L. Ed. 134, 12 Ann. Cas. 463, it was held that a system of taxation by statute in Georgia, as construed by the highest court of that state, which did not allow the taxpayer an opportunity to be heard as to the valuation of his property, though not returned by him, except upon allegations of fraud or corruption, did not -afford due process of law; and it is stated in the opinion that— “Soinewliere during the process o£ the assessment the taxpayer must have an opportunity to be heard, and that this notice must be provided as an essential part of the statutory provision and not awarded as a mere matter of favor or grace.” It was held by the Supreme Court in United States v. Yugiuovich, supra, that Congress has the power to tax liquors, notwithstanding their production is prohibited and punished, and that in the passage of the act it manifested “the intention to tax liquors illegally as well as those legally pi-oduced.” The opinion in that case was dealing with an indictment charging violations of sections 3257, 3279, 3281, and" }, { "docid": "22057344", "title": "", "text": "of the State as construed by its highest court requires of the taxpayer that he return all his property, whether its liability is fairly contestable or not, upon pain of an ex parte valuation, against which there is no relief in the tax proceédings or in the courts, except in those cases where fraud or corruption can be shown in the action of the assessing officer. Reluctant as we are to interfere with the enforcement of the tax laws of a State, we are constrained to the conclusion that this system does not afford that due process of law which adjudges upon notice and opportunity to be heard, which it was the intention of the Fourteenth Amendment to protect against impairment by state action. The judgments of the Supreme Court of Georgia are reversed and the cases remanded for further proceedings not inconsistent with this opinion. Sec. 804. Returns to comptroller, how made.—The returns of all companies, or persons, required to be made to the comptroller-general must be in writing and sworn to, by the presiding officer, etc. Sec. 805. Returns and taxes, etc.-,—The returns of all railroad and insurance and express companies, and agents of foreign companies, authorized in this State, shall be made to the comptroller-general by the first day of May in each year, and the taxes thereof paid to the state treasurer by the first day of October, and not later than December twentieth of each year. Sec. 812. Returns to comptroller must he itemized,.—Whenever corporations, companies, persons, agencies, or institutions, are required by law to make returns of property, or gross receipts, or business, or income, gross, annual, net, or any other kind, or any other return, to the comptroller-general, for taxation, such return shall contain an itemized statement of property, each class or species to be. separately named and valued, or an itemized account of gross receipts, or business, or income, as above definedk or other matters required to be returned, and in case of net income only, an itemized account of gross receipts and expenditures, to show how the income returned is ascertained," }, { "docid": "11471706", "title": "", "text": "plea of estoppel just disposed of came in, the complainants amended their bill and set up the judgment in the earlier case of the State of Georgia v. The Georgia Railroad & Banking Company, 54 Georgia, 423, as au adjudication concluding not only the claim that the exemption was ouly of the shares in the hands of shareholders, but as an adverse decision of this claim that only so much of the “investments” of the company were exempt from a general ad valorem tax as equalled.in value the authorized capital stock of the company under the charter and amendments prior to 18(53. But in Georgia Railroad Banking Company v. Wright, 124 Georgia, 596, the Supreme Court of Georgia seems to have definitely decided that a judgment in a suit to collect a tax assessed for one year is not a bar to a suit for taxes subse-quenlly assessed for another year, although the question decided in the first case, is the same question upón which the second suit must be also decided. . This court, as is well settled, accords to a judgment of a State only that effect given to it by the court of the State in which it was rendered. Union Bank v. Memphis, 189 U. S. 71; Corington v. First Nat. Bank, 198 U. S. 100. We shall therefore disregard this plea, and determine the matter upon its merits, giving to the decision of the Georgia court consideration only as an authority. Coming then to the question on its merits: Under the\"original charter and certain amendments there exists to-day an authorized .capital stock of $4,15(5,000. This leaves put of account a small increase under a later act, aggregating 440 shares, which capital is\" subject to taxation and is not now in dispute. The railroad property, including its railway, depots, equipments and appurtenances proper, have a present value of some four millions of \"dollars in excess of the authorized capital.' Now the contention is that to the extent of this excess the property of the company is assessable and, taxable as other property. There is not much" }, { "docid": "22057325", "title": "", "text": "Me. Justice Day delivered'the opinion of the court. These cases are writs of error to the Supreme Court of the State of Georgia, in suits brought to enjoin the collection of certain taxes. In the view we take of them they may be considered together. Actions were begun by the plaintiffs in error, in the Superior Court of Fulton County, to enjoin the enforcement of executions in the hands of the sheriff, issued for taxes assessed by the comptroller-general on shares of the corporate stock of the Western Railway of Alabama, an Alabama corporation, which stock was alleged to be held and owned by the plaintiffs in error. ■ The Superior Court refused to award an injunction. Upon writs of error the. Supreme Court affirmed the judgments of the. court below. 124 Georgia, 596, 630.' The cases were remitted to the Superior Court of Fulton County, and that court rendered final decrees in favor of the defendants below, holding the tax executions to be lawful. The cases were again taken to the Supreme Court of Georgia and there affirmed. 125 Georgia, 589, 617. The question of the taxability of these shares was a matter of litigation in the Federal courts of the Georgia District, and it was held such shares were not taxable. 116 Fed. Rep. 669 affirmed in the Court of Appeals, 117 Fed. Rep. 1007. The latter case was reversed and the stock held taxable'in the case of Wright v. Louisville & Nashville Railroad Company, decided by this court at the October term, 1904. 195 U. S. 219. Thereupon says the Supreme Court of Georgia (124 Georgia, 612):. “ On January 27, 1905, the comptroller-general wrote to the president of the Georgia Railroad and Banking Company the following letter: ‘The Supreme Court of the United States having recently held, as you doubtless are aware, that the shares of stock of the Western Railway of Alabama owned by the Georgia Railroad and Banking Company are taxable in Georgia, it becomes my duty to assess these shares of stock for taxation if or each of the years in which they" }, { "docid": "22057328", "title": "", "text": "time the early part of next week if possible.’ Other correspondence took place, between the comptroller-general and various officers of the Georgia Railroad, including the general counsel, who eventually submitted to the comptroller-general a statement regarding what he considered the value of the railroad property in ques tion, together with a tabulated statement of the dividends which the Georgia Railroad had received from the stock, at the same time protesting that the,stock was not liable for taxation, and refusing to make any return-of it for that purpose. The comptroller-general thereupon, according,to his affidavit, ‘ assessed the same from the best information obtainable.’ It is insisted with great earnestness and ability that the levy of executions under these circumstances, without giving notice to the railroad company or allowing it any opportunity to be heard as to the basis of valuation upon which the assessment was made,, amounted to a seizure of its property without, due process of law. It is not claimed that the comptroller-general has violated the provisions of any existing statute, but that the laws of Georgia- do not' provide for the collection of taxes on omitted property after a return has been made by the taxpayer and accepted by the comptroller-general.” The first and perhaps principal question argued in the case arises upon the contention of the plaintiffs in error that the method of assessment provided for the taxation of property in such cases as the-present, as laid down in the statutes of the State of Georgia, as construed by the Supreme Court of the State, do not afford the taxpayer due process of law. The pertinent sections of the Political Code of Georgia are copied in the margin. Of the. system of taxation thus provided' the Supreme Court of Georgia in a summary of its provisions says (124 Georgia, 613): “The Political Code, section 812, prescribes the method by. which -‘ corporations, companies, persons, agencies, or institutions,’ shall make returns of their property to the comptroller-general for taxation; and provides that ‘such returns shall be carefully scrutinized by the comptroller-general, and if in his judgment the.property embraced" }, { "docid": "6997355", "title": "", "text": "Wright v. Louisville & Nashville R. R. Co., 195 U. S. 219, the question was whether shares of stock in a railroad corporation of another State, which were owned by a Georgia corporation were taxable under the constitution and laws of Georgia. The State’s power to tax the shares was not denied, so far as the Constitution of the United States was concerned, but it was contended that this power had not been exercised. The constitution of Georgia provided that all taxation should “be uniform upon the same class of subjects, an<jl ad valorem on all property subject to-be taxed within the territorial-limits of the authority levying the tax,” and should be levied and collected under general laws. The general tax act had authorized a tax on all of the-taxable property of the State, It was clear that -the State had directed' shares in foreign corporations to be taxed, provided these could be considered to be “property-subject to be taxed within the territorial limits” of the taxing authority. And such shares when held by ‘a resident being deemed to fall within this description, it was decided that the state officer was entitled to collect the tax. “Putting the case at the lowest,” said the court (p. 222), “the above cited section of the constitution was adopted in the interest of the State as a tax collector, and authorizes, if it does not require, a tax on the stock.” So also, in Darnell v. Indiana, 226 U. S. 390, the authority, of the State to tax the shares of its citizens in foreign corporations was recognized, the tax .being sustained against objections urged under the commerce clause, Art. I, § 8, and the equal protection clause of the Fourteenth Amendment. To support the contention that this familiar state action, hitherto assumed to be valid, is fundamentally violative of the Federal Constitution,, the plaintiff in error invokes the doctrine that a State has no right to tax the property of its citizens when it is permanently located in another jurisdiction. Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U. S. 385; Del.," }, { "docid": "11471702", "title": "", "text": "th.e obligation of a contract by which the State was limited to a tax which should not exceed one per cent “on its earn- inga.” Goldsmith, Comptroller, v. The Georgia Railroad & Banking Company is relied upon as overruling the earlier case. .But this is a mistake for more than one reason. That case was dismissed for want of jurisdiction over the subject of the legality or illegality of the tax resisted. Hence, all that was said about the taxability of the appellee’s property under (his charter exemption was obiter. But so far as the question of the applicability of this partial exemption to the capital of the company as invested in its railroad is concerned, the opinion distinctly accepts the former case as a settlement of the question. . Referring to the former case, Mr. Justice Bleckley said: “It seems to have been the purpose of this court to hold in 54 Georgia, 423, that except as to stock issued under the amendment of 1868 authorizing the Ólayton branch, the limit put by the charter of the Georgia Railroad and Banking Company upon the taxing power, extends to all the capital. stock of the'corporation as a railroad company, and. is irre-pealable.- These questions were, fairly involved in that, case, and the adjudication of them there announced ought to be accepted as final.” That Mr. Justice Bleckley afterward concluded that the former case had licit considered or decided whether any excess of value of property over the amount of the authorized and exempt capital would be subject to an ad valorem, tax is true; but that does not detract from the recognition of the former as ari authoritative opinion upon the point that the exemption was of the capital of the company. .We come now to the question as to whether so much of the value of the company’s railroad and appurtenances as exceeds in value the amount of the authorized capital stock, under the charter and amendments prior to 1863, is subject to taxation as other property- of like character, under the law óf the State. This value “it" }, { "docid": "22057342", "title": "", "text": "valuation was not excessive. As has been said, there was evidence justifying this finding of fact. Under the circumstances, even if there was any error in refusing to strike the prayer of the amendment .to the answer, the error was not of such a character as to require a reversal of the judgment.” That is to say, the Supreme Court, had already decided that the taxpayer being in default of return was not entitled to be heard upon the valuation of his property, except for the purpose of attacking the assessment for \"fraud or corruption” in the assessing officer, and the testimony did not show such excessive valuation as within the rule laid down in both decisions would avoid the action of the comptroller-general. The record discloses that for many years this class of property was not regarded as taxable in Georgia, and was not returned for taxation in the State. But it is contended that- the taxpayer here stands in the attitude- of one acting contumaciously, and denying the validity of the tax after this court •had practically decided its validity against the plaintiffs in error in Wright v. Railroad Co., 195 U. S. 219. But, as we have seen,-the Supreme Court of Georgia has expressly eliminated the element of bad faith in the taxpayer from the findings upon which its decision rests. The Wright case was held not to have concluded the contention that plaintiffs were denied' the equal protection of the laws, in that no other person or corporation in Georgia was assessed upon stock in a foreign corporation, nor the validity of the claim that the stock was not held in Georgia, nor other grounds alleged in the petitions, except so far as the Georgia Railroad was concerned- for the year 1900. 124 Georgia, 607. We must • decide the case in view of its relations to a taxpayer not fraudulently concealing his property and honestly contending, with reasonable grounds for tha contention, that it is not taxable -under the laws of the State. As we have seen, the system provided in Georgia- by the statutes" } ]

[ { "docid": "23255150", "title": "", "text": "discriminatory reasons. At the close of appellants’ case, Plastics’ motion to dismiss pursuant to Rule 41(b) was granted because the district court could find no evidence of racial discrimination. When the court several months later entered final judgment, it concluded that appellants’ action was “frivolous, groundless and unreasonable” and awarded defendant $5,000 in attorney’s fees. In their very perfunctory brief, appellants pose as a question for appellate consideration the issue “[wjhether the District Court should have certified the class,” but do not discuss the issue in their argument. Any contention that the trial court erred in denying certification is therefore abandoned. Fed.R.App.P. 28(a)(4); United States v. Lynn, 608 F.2d 132, 135 (5th Cir. 1979) (crim. case); Davis v. Hill Engineering, Inc., 549 F.2d 314, 324 (5th Cir. 1977). Appellants contend that it was error to grant the motion for judgment of dismissal, Fed.R.Civ.P. 41(b). We conclude, to the contrary, that the district court was entirely correct in determining that there was no evidence of racial discrimination. Appellants’ contention that they were disciplined more severely than were whites in similar circumstances was refuted by evidence of specific instances in which white employees were disciplined in precisely the same manner as appellants had been. There was no testimony indicating that the seniority system was instituted or maintained for racially discriminatory reasons. The seniority system is therefore “bona fide” and not actionable under Title VII. 42 U.S.C. § 2000e-2(h); Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); James v. Stockham Valves & Fittings Co., 559 F.2d 310, 352-53 (5th Cir. 1977), cert. denied 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). Neither is it actionable under 42 U.S.C. § 1981, which requires a showing of purposeful discrimination. The district court did not err in granting the motion for judgment of dismissal. Appellants argue that it was error to award attorney fees to Plastics because “[tjhere is sufficient evidence that . Harris and . . . Culberson did not prosecute this action in bad faith.” The Supreme Court held in Christiansburg Garment Co. v. E. E." } ]

[ { "docid": "10702067", "title": "", "text": "seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . ... ” (Emphasis added.) . The court used the term bona fide seniority system to refer to a system within the § 703(h) exemption. . In James v. Stockham Valves and Fittings Co., 559 F.2d 310 (5th Cir. 1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 787 (1978), the Fifth Circuit interpreted the state-, ment of criteria from Teamsters. “As we read the Teamsters opinion, the issue whether there has been purposeful discrimination in connection with the establishment or continuation of a seniority system is integral to a determination that the system is or is not bona fide ... The Court’s analysis suggests that the totality of the circumstances in the development and maintenance of the system is relevant to examining that issue ... In Teamsters the Court focused on four factors: 1) whether the seniority system operates to discourage all employees equally from transferring between seniority units; 2) whether the seniority units are in the same or separate bargaining units (if the latter, whether that structure is rational and in conformance with industry practice); 3) whether the seniority system had its genesis in racial discrimination; and 4) whether the system was negotiated and has been maintained free from any illegal purpose.” Id. at 351-52, 97 S.Ct. at 1862-63. . While defendants now contend that the positions are not substantially similar, the basis for UTU’s protests before the Railway Labor Board was that the porters were performing duties given to brakemen by the seniority agreement, i. e., that the two crafts performed the same function. See also Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 771 n.3, 72 S.Ct. 1022, 1024 n.3, 96 L.Ed. 1283 (1952) quoted infra note 11. . Rather than ratifying the craft designations, the Howard Court implied the specious nature of the distinctions between the" }, { "docid": "12743018", "title": "", "text": "plaintiffs raise is whether the application of Section 703(h) is limited to pre-Act seniority systems. Plaintiffs rely primarily on Patterson v. American Tobacco Co., 634 F.2d 744 (4th Cir.1980), rev’d 456 U.S. 63, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982), in which the Fourth Circuit concluded that “Congress intended the immunity accorded seniority systems by § 703(h) to run only to those systems in existence at the time of Title VIPs effective date, and of course to routine post-Act applications of such systems.” Id. at 749. The Supreme Court, however, recently reversed the Fourth Circuit’s decision in Patterson and resolved this issue against plaintiffs. American Tobacco Co. v. Patterson, 456 U.S. 63, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982). The Supreme Court in Patterson noted that “Section 703(h) on its face immunizes all bona fide seniority systems, and does not distinguish between the perpetuation of pre- and post-Act discrimination.” 102 S.Ct. at 1541 (quoting International Brotherhood of Teamsters v. United States, supra 431 U.S. at 348 n. 30, 97 S.Ct. at 1861 n. 30). After reviewing the legislative history, the Court held that Section 703(h) applies to all seniority systems regardless of whether the system was established before or after the enactment of Title VII. Id. In reaching this conclusion, the Court reasoned that “a construction of § 703(h) limiting its application to seniority systems in place prior to the effective date of the statute would be contrary to its plain language, inconsistent with our prior eases, and would run counter to the national labor policy .... ” Id. 102 S.Ct. at 1542.' In light of the Supreme Court’s decision in Patterson, there clearly is no merit to plaintiffs’ assertion that Section 703(h) is limited to pre-Act seniority systems. Accordingly, the court concludes that the district court did not err in applying Section 703(h) to the seniority system’s coverage of the Atlanta shop and yard employees. Applicability of Section 703(h) to Claims Under Section 1981 Plaintiffs next contend that the district court erred in holding that Section 703(h) of Title VII applies to plaintiffs’ claims under Section 1981. Plaintiffs argue" }, { "docid": "5419010", "title": "", "text": "resolution of this issue, we need not resolve the potential conflict over whether the modification in fact had only a prospective effect. The key to the bona fides of a seniority system that may have a discriminatory effect is the absence of purposeful discrimination. In a case decided after the Supreme Court decision in Teamsters, James v. Stockham Valves & Fitting Co., 559 F.2d 310, 351 (5th Cir. 1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978), we held “the issue whether there has been purposeful discrimination in connection with the establishment or continuation of a seniority system is integral to a determination that the system is or is not bona fide.” See Southbridge Plastics Division v. Local 759, International Union of Rubber Workers, 565 F.2d 913, 915 (5th Cir. 1978). To determine whether there has been purposeful discrimination, the court should examine the totality of the circumstances surrounding the seniority system, with particular emphasis on four factors the James court culled from the Supreme Court’s analysis in Teamsters. Swint v. Pullman-Standard, 624 F.2d 525, 530-34 (5th Cir. 1980). These factors include: whether the seniority system operates to discourage all employees equally from transferring between seniority units; whether the seniority units are in separate bargaining units and, if so, whether that structure is rational and in conformance with industry practice; whether the seniority system had its genesis in racial discrimination; and whether the system was negotiated and has been maintained free from any illegal purpose. James v. Stockham Valves & Fitting Co., 559 F.2d at 352. Oth er factors may of course be considered. Pettway v. American Cast Iron Pipe Co., 576 F.2d at 1192. In modifying its decree in this case, the district court responded to the Government’s contention that the system here was not bona fide by noting that the system was facially neutral and then holding: There is no evidence before the Court indicating that the seniority [system] provided for in the collective bargaining agreement between the Company and Local 84 is not “bona fide” as that term is used in section 703(h)." }, { "docid": "15658095", "title": "", "text": "a lesser degree than during the pre-Act period. We find the district court’s conclusion that no discrimination existed in post-Act assignments to be factually unsubstantiated. We have carefully reviewed the post-Act assignment statistics and, taken as a whole, they clearly support the appellants’ contention that Pullman-Standard discriminated against blacks in the assignment of employees to departments after the applicable period. II The appellants argue that the district court erred in concluding that the departmental seniority system is “bona fide” within the purview of Section 703(h) of the Civil Rights Act of 1964. In Teamsters v. United States, the Supreme Court held that, absent a showing of discriminatory purpose in a seniority system, that system is protected by § 703(h), 42 U.S.C. § 2000e-2(h) from attack on Title VII grounds. Harris v. Plastics Mfg. Co., 617 F.2d 438 (5th Cir. 1980). Fisher v. Proctor & Gamble Manufacturing Co., 613 F.2d 527 (5th Cir. 1980). Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978). Southbridge Plastics Division, etc. v. Local Valves & Fittings Co., 565 F.2d 913 (5th Cir. 1978). James v. Stockham Valves & Fittings Co., 559 F.2d 310 (1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). Section 703(h), provides in pertinent part: Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions or privileges of employment pursuant to a bona fide seniority . . system, . provided that such differences are not the result of an intention to discriminate because of race. In James v. Stockham Valves & Fittings Co., we noted that the analysis in Teamsters suggests that the totality of the circumstances in the development and maintenance of a seniority system is relevant to examining “whether there has been purposeful discrimination in connection with the establishment or continuation of a seniority system [which is] integral to a determination that the system is or is not bona fide.” James, at 351. James extracts four factors from Teamsters which are helpful in deciding" }, { "docid": "429775", "title": "", "text": "by the aforementioned evidence. We therefore reverse the judgment of the district court. Id. at 813-14. The Supreme Court vacated and remanded for a determination of whether the statistics which purported to show a prima facie violation had been gleaned from the relevant labor market. 433 U.S. at 313, 97 S.Ct. at 2744. Unlike Hazelwood, there is no issue in this case as to whether the statistics used to show a prima facie violation are appropriate. The prima facie violation in this case is shown by plaintiffs’ actual applicant data. Actual applicant data is an appropriate statistic for showing the disproportionate impact of defendants’ selection criteria. New York City Transit Auth. v. Beazer, 440 U.S. 568, 586 n.29, 99 S.Ct. 1355, 1366, n.29, 59 L.Ed.2d 587 (1979); Hazelwood School Dist., 433 U.S. at 308 n.13, 97 S.Ct. at 2742; Hester v. Southern Ry. Co., 497 F.2d 1374, 1379 n.6 (5th Cir. 1974); D. Baldus & J. Cole, Statistical Proof of Discrimination 106-11 (1980). . See also Fisher v. Proctor & Gamble Mfg. Co., 613 F.2d 527, 542 (5th Cir. 1980) (“Since Teamsters and Evans, however, we have recognized that an otherwise bona fide seniority system ‘is not itself illegal merely because it per-. petuates the effects of pre-Act or post-Act discrimination.’ ” Quoting Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1189 (5th Cir. 1978)). “Instead, ‘purposeful discrimination in connection with the establishment or continuation of a seniority system is integral to a determination that the system is or is not bona fide.’ ’’ Fisher, supra, quoting James v. Stockham Valves & Fittings Co., 559 F.2d 310, 351 (5th Cir. 1977); Firefighters Inst. v. City of St. Louis, 588 F.2d 235, 242 n.11 (8th Cir. 1978). . The district court held the plaintiffs’ evidence failed to show a discriminatory effect. 471 F.Supp. at 1342. It appears that this finding was based on the court’s application of the disproportionate impact test of Griggs. However, even if a disproportionate impact had been shown, the seniority system would not have been shown to be a prima facie violation of title VII" }, { "docid": "13565536", "title": "", "text": ". Patterson v. American Tobacco Co., 535 F.2d 257, 270 (4th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976), remand aff'd in part, rev'd in part 586 F.2d 300 (4th Cir. 1978), later appeal, 634 F.2d 744 (4th Cir. 1980), pet. for cert. filed 49 U.S.L.W. 3533 (Jan. 16, 1981) (No. 80-1199), quoting Waters v. Wisconsin Steel Works of International Harvester Co., 502 F.2d 1309, 1316 (7th Cir. 1974), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976). For the most part, title VII and section 1981 have similar requirements and remedies. Markey v. Tenneco Oil Co., 635 F.2d 497, 498 n.l (5th Cir. 1981); Whiting v. Jackson State Univ., 616 F.2d 116, 121 (5th Cir. 1980). Section 1981 affords no greater substantive protection than title VII against employment discrimination, New York City Transit Auth. v. Beazer, 440 U.S. 568, 583 n.24, 99 S.Ct. 1355, 1364 n.24, 59 L.Ed.2d 587 (1979), and in some respects may afford less. Compare Guardians Ass’n v. Civil Serv., 633 F.2d 232, 263-68 (2d Cir. 1980) with Davis v. County of Los Angeles, 566 F.2d 1334 (9th Cir. 1977), vacated as moot, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979), with regard to the question of whether a showing of disproportionate impact is sufficient to make a prima facie case under section 1981. Bona fide seniority systems appear to receive the same substantive protection under both title VII and section 1981, but the question may be open to some doubt. Compare Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1191 n.37 (5th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979); Johnson v. Ryder Truck Lines, Inc., 575 F.2d 471 (4th Cir. 1978), cert. denied, 440 U.S. 979, 99 S.Ct. 1785, 60 L.Ed.2d 239 (1979) with Bolden v. Pennsylvania State Police, 578 F.2d 912, 920-21 (3d Cir. 1978). In Person v. J. S. Alberici Constr. Co., 640 F.2d 916 (8th Cir. 1981), a panel of this court recognized that “the principles on the order and allocation of proof" }, { "docid": "18648707", "title": "", "text": "racial discrimination, and that it was negotiated and has been maintained free from any illegal purpose. Id. at 355-56, 97 S.Ct. at 1864-65. Teamsters, therefore, stands for the proposition that an otherwise neutral seniority system will not be held in violation of Title VII merely because it tends to perpetuate the effects of past discrimination. In order to violate Title VII, the seniority system must be found to be not bona fide. The Fourth Circuit has recently had occasion to consider the question of the bona fides of a unit seniority structure in Younger v. Glamorgan Pipe and Foundry Co., 621 F.2d 96, 97 (4th Cir. 1980), and on that occasion affirmed per curiam the decision of the District Court that the seniority system was bona fide. That District Court opinion set out in detail the factors to be considered when the bona fides of a seniority system is challenged. These factors were: 1) . Whether the system was facially neutral; /. e., whether it applied equally to all races and ethnic groups; 2) . Whether the type of seniority system in use was rational and in accord with industry practice; 3) . Whether the system had its genesis in racial discrimination; and 4) . Whether the system was negotiated and maintained free from any illegal purpose. Younger, 20 FEP Cases 776, 784 (W.D.Va. 1979). These factors have also been applied in this District, Carroll v. Bethlehem Steel Corp., Civil Action No. M-75-374, Opinion and Order at 20-21 (D.Md. May 15, 1980), aff’d Civil No. 80-1414 (4th Cir. December 30, 1980), and in other Circuits. See, e. g., James v. Stockham Valves & Fittings Co., 559 F.2d 310, 352 (5th Cir. 1977). Application of these four factors to the seniority system presently in effect at Patapsco reveals that the system is bona fide within the meaning of Title VII and § 1981. First, the system is facially neutral; there is no evidence to suggest that the system on its face is racially biased. Second, it is abundantly clear that the unit seniority system in effect at Patapsco was (and is)" }, { "docid": "23597179", "title": "", "text": "Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). Yet the immunity provided by section 703(h) extends to seniority systems with a disparate racial impact only when “differences in treatment [are] not the result of an intention to discriminate because of race.” Teamsters, 431 U.S. at 353, 97 S.Ct. at 1863; accord, Southbridge Plastics Division v. Local 759, 565 F.2d 913 (5th Cir. 1978). To assess the purposes underlying the Bessemer seniority system, we turn to the four factors identified in James v. Stockham Valves. The district court correctly found that the Bessemer seniority system had its genesis in purposeful racial discrimination. The record amply supports this conclusion by showing that the system arose in an era of overt racial discrimination at U.S. Pipe, when blacks were assigned to “dead-end” jobs, bargaining seniority units were defined by racial considerations, and seniority provisions allowed transfer to better units only through commission of “seniority suicide.” See our refusal to extend section 703(h) immunity to similar seniority systems in Swint v. Pullman-Standard, 624 F.2d 525 (5th Cir. 1980), and United States v. Georgia Power Co., 634 F.2d 929 (5th Cir. 1981). We need not decide whether the court’s specific finding of the racial genesis of the Bessemer system is tantamount to a finding of “purposeful discrimination in connection with the establishment ... of the system,” James, 559 F.2d at 351, because here, as in Swint and Georgia Power, we find evidence of discriminatory intent under each of the James factors and the totality of all circumstances. The district court clearly erred in concluding that the Bessemer seniority system was negotiated and maintained free of discriminatory purposes. The record before us amply shows that we again face a situation in which the seniority system negotiated through the collective bargaining process tracked and reinforced the purposefully segregated job classification scheme maintained by the company and the conclusion is inescapable that the seniority system it self shared in that same unlawful purpose. The seniority system under the collective bargaining agreement" }, { "docid": "5511833", "title": "", "text": "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. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). While Fowler may be correct that the allegedly illegal placement on the seniority list will have a continuing adverse impact on him, as did the seniority system in Evans, Evans made clear that the operation of a seniority system is not unlawful under Title VII even though it perpetuates discrimination that has not been the subject of a timely charge by the discriminatee. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 348 n.30, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Accordingly, the lower court’s application of the ninety-day rule to the alleged actions in 1969 and the other claims of discrimination that stem from that action was proper. See Dobbs v. City of Atlanta, Ga., 606 F.2d 557 (5th Cir. 1979). There is another reason why the district court must be affirmed in this case. These claims heretofore discussed and the claim that Fowler was passed over for positions for which he was qualified are also barred by the res judicata effect of the" }, { "docid": "23597173", "title": "", "text": "court upheld the validity of the seniority system except for the 1950 “swap” of positions between the Steelworkers and the Boilermakers and Machinists. The court correctly recognized that in order for a seniority system to be bona fide under § 703(h) of Title VII, it must not have been created or maintained with the intention to discriminate. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). The district court properly looked to the four factors extracted by us from the Supreme Court’s opinion in Teamsters, and set forth in James v. Stockham Valves & Fittings Co., 559 F.2d 310 (5th Cir. 1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978), to assist in determining whether a particular seniority system stems from nondiscriminatory motivations: (1) whether the seniority system operates to discourage all employees equally from transferring between seniority units; (2) whether the seniority units are in the same or separate bargaining units (if the latter, whether that structure is rational and in conformance with industry practice); (3) whether the seniority system had its genesis in racial discrimination; and (4) whether the system was negotiated and has been maintained free from any illegal purpose. James, 559 F.2d at 352. The district court found that one of the James factors weighed in favor of appellants: The seniority system had its genesis in racial discrimination. Specifically, the court found that racial considerations played a major role in the elections which produced the original bargaining and seniority units, and in the 1950 “swap” of employee positions between several units. The district court ruled, however, that none of the other three James factors suggested an intent to discriminate through the Bessemer seniority system. Regarding the equality with which the system operated upon all employees, the court noted that the “lock-in” provisions were neutral on their face and as applied. The court acknowledged that “a much larger percentage of blacks than whites would have reason to desire transfer but for the loss of seniority under the rules,” and that “the seniority system has been" }, { "docid": "17666465", "title": "", "text": "at 558, 97 S.Ct. at 1889. The attendant in Evans based her entire claim on the present application of a neutral seniority system which perpetuated the effects of a past discriminatory act not made the subject of a timely charge. The Court held that the operation of an otherwise bona fide and neutral seniority system is not unlawful under Title VII merely because it perpetuates post-Act discrimination that has not been made the subject of a timely charge of discrimination. Neither Evans nor Teamsters foreclose consideration of prior discrimination in all circumstances. They hold only that prior discrimination, by itself, cannot make the operation of an otherwise bona fide seniority system unlawful. They do not hold, as the Company suggests, that a continuing violation can never constitute an actionable wrong; only that the mere perpetuation of the effects of pre-Act or time barred discrimination does not constitute a present violation. See also, Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978); James v. Stockham Valves & Fitting Co., 559 F.2d 310 (5th Cir. 1977); Clark v. Olinkraft, Inc., 556 F.2d 1219 (5th Cir. 1977). In Olinkraft this court, noted that notwithstanding Evans, where an entire promotion system is challenged on the basis that it operates to hold plaintiffs “in lower echelons,” the 180 day statutory period is inconsequential in determining the admissibility of prior discriminatory acts. After reciting Company employment and promotion practices occurring pri- or to September 11, 1970, the district court noted that such evidence “is relevant and admissible to show possible plant-wide discriminatory conduct with continuing effects, the probability of the continuation of such conduct, and the relationship between past actions and present effects and actions.” Citing, Swint v. Pullman-Standard, 539 F.2d 77 (5th Cir. 1976); Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th Cir. 1973). There is no question that, without the benefit of Teamsters or.Evans, the district court overstated the test for the consideration of past discriminatory conduct. The challenged evidence was improperly considered, however, only if the district court viewed the prior discriminatory acts as constituting the actionable wrongs" }, { "docid": "4712910", "title": "", "text": "by the Supreme Court. 17. Defendant’s seniority system is also a “bona fide seniority system” within the meaning of § 703(h). In determining whether a particular employer’s seniority system is “bona fide,” the courts consider the following-factors: (1) whether the seniority system operates to discourage all employees equally from transferring between seniority units; (2) whether the seniority units are in the same or separate bargaining units (if the latter, whether that structure is rational and in conformance with industry practice); (3) whether the seniority system had its genesis in racial discrimination; and (4) whether the system was negotiated and has been maintained free from any illegal purpose. James v. Stockham Valves & Fittings Co., 559 F.2d 310, 352 (5th Cir.1977) (citing International Bhd. of Teamsters v. United States, 431 U.S. 324, 355-56, 97 S.Ct. 1843, 1864-65, 52 L.Ed.2d 396 (1977)), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). These factors are not exclusive, however. The Court can also consider the totality of the circumstances in the development and maintenance of the system. Id. See, e.g., Faulkner v. Republic Steel Corp., 30 FEP 555, 1979 WL 91 (N.D.Ala.1979). First, defendant’s seniority system is facially neutral and applied equally to all races. Pullman-Standard, 456 U.S. at 279, 102 S.Ct. at 1785. The evidence establishes that the same seniority rules apply to all employees, black or white. When an employee is promoted to a higher position, he begins accumulating job seniority in the new position. While any subsequent promotion is based in part on the newly accumulated job seniority, the employee, whether black or white, retains the advantages of his previous job seniority and his plant seniority. To the extent defendant’s seniority system “ ‘locks’ employees into [certain] jobs, it does so for all.” Teamsters, 431 U.S. at 355-56, 97 S.Ct. at 1864-65; see, e.g., Gantlin v. West Va. Pulp & Paper Co., 734 F.2d 980 (4th Cir.1984). The second factoz' set forth in James also compels the conclusion that defendant’s seniority system is bona fide. The employees in the paper machine department are members of the same bargaining" }, { "docid": "12743015", "title": "", "text": "concludes that the district court did not abuse its discretion in denying plaintiffs’ request to include applicants within the class. Applicability of Section 703(h) to Seniority System’s Coverage of Atlanta Shop and Yard Employees Section 703(h) of Title VII provides in pertinent part as follows: Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority ... system ... provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin .... 42 U.S.C. § 2000e-2(h). As previously discussed, the Supreme Court in Teamsters held that a seniority system may be bona fide, and therefore protected under Section 703(h), even though the system perpetuates the effects of prior discriminatory employment practices. International Brotherhood of Teamsters v. United States, supra 431 U.S. at 353-54, 97 S.Ct. at 1863-1864. Accordingly, under Teamsters a finding of a bona fide seniority system under Section 703(h) is precluded only where the system is created or maintained with an intent to discriminate. Id; Terrell v. United States Pipe & Foundry Co., 644 F.2d 1112, 1116 (5th Cir.1981); Hodge v. McLean Trucking Co., 607 F.2d 1118, 1120 (5th Cir.1979); James v. Stockham Valves and Fittings Co., 559 F.2d 310, 353 (5th Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). Prior to Teamsters, the Supreme Court had uniformly held that a prima facie case under Title VII could be established by merely showing that an employment policy or practice had a discriminatory impact. E.g., General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). In Griggs v. Duke Power Co., supra, the' Supreme Court held that: “[practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be" }, { "docid": "12743017", "title": "", "text": "maintained if they operate to ‘freeze’ the status quo of the prior discriminatory employment practices.” 401 U.S. at 430, 91 S.Ct. at 853. The Court in Teamsters, thus, construed Section 703(h) as an exception to its holding in Griggs that a neutral employment policy which perpetuates the effects of past discrimination is violative of Title VII. Plaintiffs do not challenge the district court’s finding that the seniority system at issue is bona fide within the meaning of Section 703(h). Rather, plaintiffs contend that the protection afforded bona fide seniority systems under Section 703(h) does not apply to seniority systems established after the 1964 enactment of Title VII. Based upon this interpretation of Section 703(h), plaintiffs argue that the seniority system’s coverage of the Atlanta shop and yard employees is not protected by Section 703(h) because these employees were not covered by the seniority system until 1969. Plaintiffs, therefore, argue that defendants are liable for the discriminatory effects of the seniority system on the Atlanta shop and yard employees under Griggs. The abstract legal question that plaintiffs raise is whether the application of Section 703(h) is limited to pre-Act seniority systems. Plaintiffs rely primarily on Patterson v. American Tobacco Co., 634 F.2d 744 (4th Cir.1980), rev’d 456 U.S. 63, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982), in which the Fourth Circuit concluded that “Congress intended the immunity accorded seniority systems by § 703(h) to run only to those systems in existence at the time of Title VIPs effective date, and of course to routine post-Act applications of such systems.” Id. at 749. The Supreme Court, however, recently reversed the Fourth Circuit’s decision in Patterson and resolved this issue against plaintiffs. American Tobacco Co. v. Patterson, 456 U.S. 63, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982). The Supreme Court in Patterson noted that “Section 703(h) on its face immunizes all bona fide seniority systems, and does not distinguish between the perpetuation of pre- and post-Act discrimination.” 102 S.Ct. at 1541 (quoting International Brotherhood of Teamsters v. United States, supra 431 U.S. at 348 n. 30, 97 S.Ct. at 1861 n. 30). After" }, { "docid": "22202742", "title": "", "text": "28 L.Ed.2d 158 (1971), a seniority system, not justified by business necessity, whose operation served to freeze the status quo of prior discriminatory employment practices, “would seem” to be unlawful. 97 S.Ct. at 1862. Nevertheless, the Court concluded that such a system would be legally valid under section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), if it were a bona fide seniority system within the mean ing of that section. That is to say,- a bona fide system is not itself illegal merely because it perpetuates the effects of pre-Act or post-Act discrimination. 97 S.Ct. at 1843 n.30. See James v. Stockham Valves & Fittings Co., 559 F.2d 310, 351-53 (5th Cir. 1977), for a discussion of the criteria for determining whether a seniority system is bona fide under Teamsters. The Court’s determination that such seniority systems are not intrinsically illegal was not meant to insulate all such systems from modifications necessary to accord relief for past discrimination. With regard to relief, the Court differentiated between pre- and post-Act discriminatory practices, holding that [p]ost-Act discriminatees . . . may obtain full “make whole” relief, including retroactive seniority . . . without attacking the legality of the seniority system as applied to them. 97 S.Ct. at 1860. As we elaborated in James v. Stockham Valves & Fittings Co., supra, after considering the effect of Teamsters on the district court’s decree: Seniority relief is mandatory in this case even if the district court finds the system bona fide. See Teamsters, 431 U.S. at 348, 97 S.Ct. 1843. The federal courts are empowered to fashion such retroactive seniority as the particular circumstances of a case may require to make whole, insofar as possible, the victims of racial discrimination in job assignments, transfers, and promotions. 559 F.2d at 355. Thus, the Court still permits seniority modifications necessary to remedy other illegal acts, so long as those other acts are independently actionable. Teamsters does, however, limit the scope of permissible relief. With regard to bona fide seniority systems, discrimination after the effective date of Title VII can no longer engender a remedy involving retroactive" }, { "docid": "22202741", "title": "", "text": "of this appeal. B. The Effect of Teamsters on Our Pri- or Mandate In Pettway III we concluded that the “neutral practices of the departmental seniority system and the posting and bidding procedure carry forward into the present the stratification of black employees into lower paying, non-skill departments and jobs resulting from past discrimination.” 494 F.2d at 236. After reviewing the relevant authorities, we ordered specific affirmative relief. See subsection 111(A)(3) supra. The recent Supreme Court decision in United States v. International Brotherhood of Teamsters, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), casts doubt upon the validity of our prior mandate insofar as it required plant-wide seniority to be calculated from the date of employment with ACIPCO. See also United Airlines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). In Teamsters the Supreme Court admitted that under the rationale of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), a seniority system, not justified by business necessity, whose operation served to freeze the status quo of prior discriminatory employment practices, “would seem” to be unlawful. 97 S.Ct. at 1862. Nevertheless, the Court concluded that such a system would be legally valid under section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), if it were a bona fide seniority system within the mean ing of that section. That is to say,- a bona fide system is not itself illegal merely because it perpetuates the effects of pre-Act or post-Act discrimination. 97 S.Ct. at 1843 n.30. See James v. Stockham Valves & Fittings Co., 559 F.2d 310, 351-53 (5th Cir. 1977), for a discussion of the criteria for determining whether a seniority system is bona fide under Teamsters. The Court’s determination that such seniority systems are not intrinsically illegal was not meant to insulate all such systems from modifications necessary to accord relief for past discrimination. With regard to relief, the Court differentiated between pre- and post-Act discriminatory practices, holding that [p]ost-Act" }, { "docid": "5419009", "title": "", "text": "Cir. 1979), cert. denied, 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 809 (1980), that “Teamsters prohibits abrogation of a seniority system only if that system is bona fide.” Thus, Teamsters would justify the district court’s discretionary modification of the earlier decree only if the seniority system came within the statutory definition of bona fide. See Patterson v. American Tobacco Co., 634 F.2d at 750. If the seniority system was not bona fide, however, the previously invalidated system would not be protected under section 703(h) and Teamsters, see Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1189 (5th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979), and accordingly it would be error for the district court to modify its decree on the basis of Teamsters. Thus, we must examine whether the district court was correct in its conclusion that the seniority system modified by the 1974 decree was bona fide when tested against the precedents of this Circuit. Since the disposition of this appeal turns on our resolution of this issue, we need not resolve the potential conflict over whether the modification in fact had only a prospective effect. The key to the bona fides of a seniority system that may have a discriminatory effect is the absence of purposeful discrimination. In a case decided after the Supreme Court decision in Teamsters, James v. Stockham Valves & Fitting Co., 559 F.2d 310, 351 (5th Cir. 1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978), we held “the issue whether there has been purposeful discrimination in connection with the establishment or continuation of a seniority system is integral to a determination that the system is or is not bona fide.” See Southbridge Plastics Division v. Local 759, International Union of Rubber Workers, 565 F.2d 913, 915 (5th Cir. 1978). To determine whether there has been purposeful discrimination, the court should examine the totality of the circumstances surrounding the seniority system, with particular emphasis on four factors the James court culled from the Supreme Court’s analysis in Teamsters. Swint v." }, { "docid": "5419011", "title": "", "text": "Pullman-Standard, 624 F.2d 525, 530-34 (5th Cir. 1980). These factors include: whether the seniority system operates to discourage all employees equally from transferring between seniority units; whether the seniority units are in separate bargaining units and, if so, whether that structure is rational and in conformance with industry practice; whether the seniority system had its genesis in racial discrimination; and whether the system was negotiated and has been maintained free from any illegal purpose. James v. Stockham Valves & Fitting Co., 559 F.2d at 352. Oth er factors may of course be considered. Pettway v. American Cast Iron Pipe Co., 576 F.2d at 1192. In modifying its decree in this case, the district court responded to the Government’s contention that the system here was not bona fide by noting that the system was facially neutral and then holding: There is no evidence before the Court indicating that the seniority [system] provided for in the collective bargaining agreement between the Company and Local 84 is not “bona fide” as that term is used in section 703(h). Indeed, the Court notes that the system agreed to by the Company and Local 84 is not untypical of those negotiated through collective bargaining. From the court’s terse treatment of the issue, it is apparent that it overlooked a number of findings made in the 1971 and 1974 decrees. Although the question whether the seniority system was bona fide was not legally relevant then, an examination of those findings in light of the factors in James demonstrates that this system could not be found to be bona fide within the meaning of section 703(h) of Title VII. Plaintiffs argue that a seniority system may be found non-bona fide on the basis of only one of the four James factors, citing Sears v. Atchison, Topeka & Santa Fe Railway Co., 454 F.Supp. 158, 179 (D.Kan.1978); Chrapliwy v. Uniroyal Inc., 15 Empl.Prac. Dec. 1 7933, at 6662 (N.D.Ind.1977). The issue under James and our subsequent decisions, however, is whether the totality of the circumstances demonstrates purposeful discrimination. Since we find that the Georgia Power seniority system does" }, { "docid": "18648708", "title": "", "text": "Whether the type of seniority system in use was rational and in accord with industry practice; 3) . Whether the system had its genesis in racial discrimination; and 4) . Whether the system was negotiated and maintained free from any illegal purpose. Younger, 20 FEP Cases 776, 784 (W.D.Va. 1979). These factors have also been applied in this District, Carroll v. Bethlehem Steel Corp., Civil Action No. M-75-374, Opinion and Order at 20-21 (D.Md. May 15, 1980), aff’d Civil No. 80-1414 (4th Cir. December 30, 1980), and in other Circuits. See, e. g., James v. Stockham Valves & Fittings Co., 559 F.2d 310, 352 (5th Cir. 1977). Application of these four factors to the seniority system presently in effect at Patapsco reveals that the system is bona fide within the meaning of Title VII and § 1981. First, the system is facially neutral; there is no evidence to suggest that the system on its face is racially biased. Second, it is abundantly clear that the unit seniority system in effect at Patapsco was (and is) rational and in accord with general industry practice. The evidence indicates, initially, that the unit system was a natural byproduct of the employment expectations of both labor and management. See, e. g., testimony of James A. Fisher, Master Mechanic at Patapsco, and Melvin S. Phelps, former Assistant Superintendent of Operations for the Railroad. These expectations, in general, center around the notion that an employee would begin and end his employment in a particular department or craft, acquiring a specialization within that craft along the way. This acquisition of a specialization within a particular craft is critical in that job experience within one railroad industry department is not a useful or valuable training for jobs existing within different departments. As a consequence, it was quite logical that seniority at Patapsco would be measured by an employee’s length of service within his unit, rather than by his plantwide service. Furthermore, the evidence is likewise clear that the unit seniority system was (and is) an industry-wide practice; Patapsco’s seniority system is in no way aberrational. The uncontroverted testimony" }, { "docid": "6261957", "title": "", "text": "race.” Id. at 353, 97 S.Ct. at 1863. Because the bona fides of the Teamsters system was conceded, the Teamsters Court was not, however, required to give detailed attention to the criteria by which bona fides in a contested situation is now to be determined. The Court did point out that the system before it “did not have its genesis in racial discrimination, and . .. was negotiated and [had] been maintained free of any illegal purpose.” Id. at 356,97 S.Ct. at 1865 [emphasis supplied]. Also emphasized were the facts that the system was facially neutral, applying alike to all employees, equally discouraging all from making intracompany transfers involving loss of seniority; and finally that the differences in employment conditions imposed by the system had a rational basis in the practices of the affected industry and were consistent with National Labor Board precedents. Id. at 355-56, 97 S.Ct. at 1864-65. From this it is clear that the modified judgment in this case was entered under a misapprehension on the part of both the district court and this court as to the proper application of § 703(h) to claims of Title VII violation through the operation of seniority systems. At odds with our then understanding lack of bona fides may not be rested solely upon a finding of perpetuation of pre-Act discrimination. See Johnson v. Ryder Truck Lines, Inc., 575 F.2d 471 (4th Cir. 1978). Defendants are accordingly entitled to relief from that judgment to the extent the present or a reopened record shows that the “seniority system” therein found violative of Title VII is immune to challenge because “bona fide” within contemplation of § 703(h). By their motions in the district court, the defendants contended that both the branch seniority system and the lines of progression policy were now revealed to be immune under § 703(h) because their bona fides was manifest on the record. The district court, without differentiating between the two and apparently treating them as constituting together “the seniority system” in issue, held flatly that the seniority system of the defendants in this case is not a" } ]

[ { "docid": "22383183", "title": "", "text": "intersection against a red light.” 588 F. 2d, at 555. See Melville v. American Home Assurance Co., 584 F. 2d 1306, 1315-1316 (CA3 1978); Ellis v. International Playtex, Inc., 745 F. 2d 292, 300-301 (CA4 1984); Kehm v. Procter & Gamble Mfg. Co., 724 F. 2d 613, 618 (CA8 1983); Jenkins v. Whittaker Corp., 785 F. 2d 720, 726 (CA9), cert. denied, 479 U. S. 918 (1986); Perrin v. Anderson, 784 F. 2d 1040, 1046-1047 (CA10 1986). Nor is the scope of Rule 803(8)(C) unexplored terrain among legal scholars. The leading evidence treatises are virtually unanimous in recommending the broad approach. See E. Cleary, McCormick on Evidence 890, n. 7 (3d ed. 1984); M. Graham, Handbook of Federal Evidence 886 (2d ed. 1986); R. Lempert & S. Saltzburg, A Modern Approach to Evidence 449-450 (2d ed. 1982); G. Lilly, An Introduction to the Law of Evidence 275-276 (2d ed. 1987); 4 D. Louisell & C. Mueller, Federal Evidence § 455, pp. 740-741 (1980); 4 J. Weinstein & M. Berger, Weinstein’s Evidence ¶803(8)[03], pp. 803-250 to 803-252 (1987). See generally Grant, The Trustworthiness Standard for the Public Records and Reports Hearsay Exception, 12 Western St. U. L. Rev. 53, 81-85 (1984) (favoring broad admissibility); Note, The Scope of Federal Rule of Evidence 803(8)(C), 59 Texas L. Rev. 155 (1980) (advocating narrow interpretation); Comment, The Public Documents Hearsay Exception for Evaluative Reports: Fact or Fiction?, 63 Tulane L. Rev. 121 (1988) (same). The court in Smith found it significant that different language was used in Rules 803(6) and 803(8)(C): “Since these terms are used in similar context within the same Rule, it is logical to assume that Congress intended that the terms have different and distinct meanings.” 612 F. 2d, at 222. The Advisory Committee Notes to Rule 803(6) make clear, however, that the Committee was motivated by a particular concern in drafting the language of that Rule. While opinions were rarely found in traditional “business records,” the expansion of that category to encompass documents such as medical diagnoses and test results brought with it some uncertainty in earlier versions of the" } ]

[ { "docid": "3348654", "title": "", "text": "fact that, as the defendants point out, correction officers receive strict instructions to make their reports truthfully does not diminish the motives that undermine the trustworthiness of such reports. Thus, the Incident Reports, the Communication Control Center Report,' and the Preliminary Telephone Report are inadmissible under the business records exception. 3. Bryan Report The Bryan Report, dated June 15, 1989, presents the results of Captain Bryan’s investigation of the May 1, 1989 incident. It incorporates statements from correction officers involved in the violence, describes the force used throughout by those officers, deems that force justified, and recommends punishing Mr. Lewis for causing the episode. Rule 803(8)(C) of the Federal Rules of Evidence allows the court to use its discretion to admit in civil eases “factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.” The term “factual findings” has been construed to include opinions or conclusions based upon investigations. Gentile v. County of Suffolk, 926 F.2d 142, 148 (2d Cir.1991); Perrin v. Anderson, 784 F.2d 1040, 1046-47 (10th Cir.1986); see also Litton Systems, Inc. v. American Telephone & Telegraph Co., 700 F.2d 785, 818-19 (2d Cir.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984); Anderson v. City of New York, 657 F.Supp. 1571, 1578 (S.D.N.Y.1987). The advisory committee’s note to the rule recommends four factors useful in assessing the trustworthiness of such materials: (1) the timeliness of the investigation; (2) the special skill or experience of the reporter; (3) whether a hearing was held in conjunction with the investigation, the level at which the hearing was conducted, and the procedures invoked; and (4) any motive on the part of the informant that could interfere with accuracy. See Fed.R.Evid. 803 advisory committee’s note; 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 803(6)[06] at 254 (1992); Gentile v. County of Suffolk, 129 F.R.D. 435, 450 (E.D.N.Y.1990), affd, 926 F.2d 142 (2d Cir.1991). The advisory committee noted that other factors “no doubt could be added,” and the Second Circuit, in addition" }, { "docid": "15572868", "title": "", "text": "the State of New York to obtain a confession” from the petitioner, who was convicted of homicide. Id. at 466. The court observed that the State Investigation Commission had found that “the manner in which [the police] conducted the investigation” into the victim’s death to be “characteristic of conduct long tolerated by responsible officials of the Suffolk County Police Department and the District Attorney’s Office____” Id. at 466 & n. 18 (citing SIC report at 28). It is incontrovertible that the Temporary Commission of Investigation of the State of New York had the authority pursuant to its enabling statute to investigate Suffolk County’s law enforcement agencies. See N.Y.Unconsol.Law § 7502; Henry v. New York State Comm’n of Investigation, 141 Misc.2d 849, 535 N.Y.S.2d 859 (Sup.Ct.) (refusing to enjoin Commission from issuing public report of its Suffolk County investigation and holding that Commission did not exceed its jurisdiction or violate rights of those being investigated), aff'd, 143 A.D.2d 914, 533 N.Y.S.2d 690 (2d Dep’t 1988). Compare, e.g., Pearce v. E.F. Hutton Group, Inc., 653 F.Supp. 810, 814 (D.D.C.1987) (draft report of Congressional subcommittee not admissible under Fed.R.Evid. 803(8)(C) because investigation was not within scope of subcommittee’s investigatory authority, but rather, was carried out as part of its oversight responsibilities). The factual findings read from the SIC report to the jury were more than mere recitations of factual observations. Although they represented the final evaluation and conclusions of the Commission, they were based on its factual studies. Whether they are sufficiently reliable to be admissible under Rule 803(8)(C) is the question to which we now turn. C. Criteria Of Trustworthiness Courts have looked to a number of factors in determining whether conclusions in an official report should be admitted as an exception to the hearsay rule. The Advisory Committee, which drafted the Federal Rules of Evidence, in its notes proposed a “nonexclusive” list of four factors emphasizing reliability. Advisory Committee note to 803(8), 56 F.R.D. 183, 313 (1972); Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 449 n. 11, 102 L.Ed.2d 445 (1988). These are listed infra, (l)-(4). To" }, { "docid": "796410", "title": "", "text": "the proceeding was uncontested, any findings of disability were premised on hearsay, and ECMC had no opportunity to test the record at that proceeding or in the instant proceeding (doc. # 22). Federal Rule of Evidence 803(8)(C) deems admissible [rjecords, reports, statements or data compilations, in any form, of public offices or agencies, setting forth ... factu al findings made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Fed.R.Evid. 803(8)(C). This rule “ ‘is based upon the assumption that public officers will perform their duties, that they lack motive to falsify, and that public inspection to which many such records are subject will disclose inaccuracies.’ ” Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d Cir.2000) (quoting 31 Michael H. Graham, Federal Practice and Procedure § 6759, at 663-64 (Interim ed.1992)). The rule renders presumptively admissible “not merely ... factual determinations in the narrow sense, but also ... conclusions or opinions that are based upon a factual investigation.” Gentile v. County of Suffolk, 926 F.2d 142, 148 (2d Cir.1991). While this Circuit has not specifically commented on the admissibility of Social Security ALJ findings in subsequent civil proceedings, it has observed a presumption of trustworthiness, under Rule 803(8)(C), in ALJ findings based upon factual investigations and such a presumption supports admission of the Decision. In Ariza v. City of New York, 139 F.3d 132 (2d Cir.1998), a police officer who sought admission of an Internal Affairs Bureau report argued that trustworthiness is presumed under Rule 803(8)(C) and the party opposing admission had the burden of showing untrustworthiness. There, the Second Circuit stated: However, before the court can presume trustworthiness, it must determine that the report contains factual findings based on a factual investigation. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169[, 109 S.Ct. 439, 102 L.Ed.2d 445] (1988) (“[T]he requirement that reports contain factual findings bars the admission of statements not based on factual investigation.”) It is the methodology of factual investigation which provides a threshold safeguard against untrustwor-thiness. Id. It follows from this reasoning in Rainey that reports" }, { "docid": "15572866", "title": "", "text": "of untrustworthiness required); United States v. AT & T Co., 498 F.Supp. 353, 360 (D.D.C.1980). Courts may review and edit portions of such reports; the edited portions retain the assumption of reliability accorded the government investigation as a whole. In re Air Crash Disaster at Stapleton International Airport, Denver, Colorado, 720 F.Supp. 1467, 1497 (D.Colo.1989) (citations omitted). The burden is on the party opposing introduction to make “ ‘an affirmative showing of untrustworthiness, beyond the obvious fact that the declarant is not in court to testify.’ ” Bradford Trust Co. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 805 F.2d 49, 54 (2d Cir.1986) (citation omitted). See also Keith v. Volpe, 858 F.2d 467, 481 (9th Cir.1988) (assumption is one of trustworthiness, with burden of establishing untrustworthiness on opponent of evidence); Ellis v. International Playtex, Inc., 745 F.2d 292, 301 (4th Cir.1984) (same); Advisory Committee Note to Rule 803(8), 56 F.R.D. 183, 313 (1972) (“[T]he rule ... assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present.”). “[F]actually based conclusions or opinions are not on that account excluded from the scope of Rule 803(8)(C).” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 446, 102 L.Ed.2d 445 (1988). Opinions and conclusions in official reports are admissible if they are “based on factual investigation.” Id. 109 S.Ct. at 449. Beech Aircraft did not explicitly address the issue of an evaluative report’s reliability, but merely noted that Rule 803(8) “requires the [trial] court to make a determination as to whether the report, or any portion thereof, is sufficiently trustworthy to be admitted.” Beech Aircraft, Id. at 449. The credibility of the SIC report itself was implicitly acknowledged in a recent Eastern District case. See Quartararo v. Mantello, 715 F.Supp. 449, 466 & nn. 17, 18 (E.D.N.Y.) (Korman, J.) (granting a habeas petition because “petitioner’s confessions were improperly obtained and erroneously used against him at his trial”), aff'd mem., 888 F.2d 126 (2d Cir.1989). Quartararo found that the Suffolk County Police “deliberately violated the Constitution of the United States and the laws of" }, { "docid": "16039906", "title": "", "text": "they are struck from the record. 3. Exhibit 6: Doctor’s Report Defendants next seek to strike Exhibit 6 from the record, a letter from a doctor regarding a hearing exam given to plaintiff,: which states the results of her examination and recommended treatment. Courts can consider medical reports on summary judgment on the assumption that the physicians who originated the report will be available to testify at trial if necessary. Jones v. City of Hartford, 285 F.Supp.2d 174, 185 (D.Conn.2003). As a result, the motion to strike Plaintiffs Exhibit 6B is denied. 4. Exhibit 8: CHRO’s Reasonable Cause Investigation Report The defendants also moved to strike plaintiffs Exhibit 8, the second reasonable cause determination by the CHRO filed after plaintiff was terminated. Factual findings in public records, which would include “conclusions or opinions” based on those facts, made after an investigation authorized by legal authority are presumptively admissible absent “information or other circumstances [that] indicate lack of trustworthiness.” Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d Cir.2000) (citing Fed.R.Evid. 803(8)(C)). “Findings of the EEOC or equivalent state agencies” fall within the ambit of the public records exception to hearsay. Paolitto v. John Brown E. & C., Inc., 151 F.3d 60, 64 (2d Cir.1998). The party seeking to strike public records has the burden to establish lack of trustworthiness. Bridgeway, 201 F.3d at 143 (citing Ariza v. City of New York, 139 F.3d 132, 134 (2d Cir.1998)); see Fed.R.Evid. 803(8)(C) advisory committee’s note (“Hence the rule ... assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present.”). In assessing trustworthiness, the court considers (1) the timeliness of the investigation; (2) the special skill or experience of the official; (3) whether a hearing was held and the level at which conducted;, [and] (4) [any motive of the investigator inconsistent with accuracy]. Fed.R.Evid. 803(8)(C) advisory committee’s note. The court may consider other factors, including the finality of the report or record as an official finding. Gentile v. County of Suffolk 129 F.R.D. 435, 458 (E.D.N.Y. 1990) (citing United Air Lines, Inc. v. Austin Travel" }, { "docid": "3884780", "title": "", "text": "Rule 803(8), a court may also admit “conclusion[sJ or opinion[s]” contained within a public record. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988).' Once proffered, a public record is presumptively admissible, and the opponent bears the burden of showing it is unreliable. Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d Cir. 2000). The State Department’s Patterns of Global Terrorism reports fit squarely within the public records exception., First, the reports contain both, factual findings and conclusions on Sudan’s support for terrorism in general and al Qaeda in. particular. Second, the reports were created pursuant to statute, see 22 U.S.C. § 2656f(a) (requiring annual reports on terrorism), and are therefore the product of a “legally authorized investigation.” See Bridgeway, 201 F.3d at 143 (holding State Department reports required by statute are public records). Indeed, in contested FSIA proceedings we have previously approved admission of the very reports Sudan challenges, Simpson, 470 F.3d at 361; Kilburn, 277 F.Supp.2d at 33, aff'd 376 F.3d at 1131, as have other courts, Damrah, 412 F.3d at 625 n.4. Sudan objects.on appeal to the “trustworthiness” of these, reports, but that objection should have been made in the district court. See Fed. R. Evid. 803(8)(B) (providing for the admission of public records if “the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness”). Even now, Sudan does not present any reason, beyond their reliance upon hearsay, to deem these reports unreliable. See Kehm v. Procter & Gamble Mfg. Co., 724 F.2d 613, 618 (8th Cir. 1983) (holding inclusion of hearsay is not a sufficient ground for excluding a public record as unreliable). Although the reports lack the details that the ■ expert witnesses provided concerning Sudan’s material support, they are competent, admissible evidence, which together with the plaintiffs’ admissible opinion evidence satisfy the burden of production on material support and jurisdictional causation. Because Sudan, by defaulting in the district court, has not carried its burden of persuasion, the district court properly asserted jurisdiction over the cases. D. Sufficiency" }, { "docid": "6966841", "title": "", "text": "its contents, see Fed.R.Evid. 803 advisory committee’s note (“In a hearsay situation, the declarant is, of course, a witness, and neither this rule nor Rule 804 dispenses with the requirement of firsthand knowledge.”); Fed.R.Evid. 803(6) (business record must be recorded by or from information supplied by an individual with personal knowledge), or for that matter to be qualified as a bomb investigator, see Matthews v. Ashland Chem., Inc., 770 F.2d 1303, 1309-10 (5th Cir.1985); 4 Jack B. Weinstein et al., Weinstein’s Evidence, ¶803(8)[03], at 803-283 (“Questions of the qualification of the expert can be raised as one of the circumstances indicating lack of trustworthiness.”); cf. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167 n. 11, 109 S.Ct. 439, 449 n. 11, 102 L.Ed.2d 445 (1988) (“investigator’s skill or experience” is factor establishing trustworthiness of government evaluative report). Finally, Scheid admitted that he employed no procedures for verifying or updating information in the EXIS database that had been submitted by agencies other than ATF. The underlying reports, arguably, come closest to falling within the hearsay exception for public records and reports, Fed.R.Evid. 803(8). In criminal cases, however, Rule 803(8) does not authorize the prosecution’s use of investigative reports that contain “matters observed by police officers and other law enforcement personnel,” Fed.R.Evid. 803(8)(B), or “factual findings resulting from an investigation made pursuant to an authority granted by law,” Fed.R.Evid. 803(8)(C). See United States v. Arias-Santana, 964 F.2d 1262, 1264 (1st Cir.1992) (police reports offered by prosecution generally inadmissible); but cf, e.g., United States v. Brown, 9 F.3d 907, 911-12 (11th Cir.1993) (Rule 803(8) does not necessarily prohibit the use of police records prepared in a routine non-adversarial setting that do not result from subjective investigation and evaluation), cert. denied, — U.S. —, 115 S.Ct. 152, 130 L.Ed.2d 91 (1994). Moreover, the exception provided by Rule 803(8) is further limited by the general qualification proscribing the use of public records if “the sources of information or other circumstances indicate a lack of trustworthiness.” Fed.R.Evid. 803(8). We have noted that Congress intended the residual hearsay exception to be used “ ‘very rarely, and" }, { "docid": "23015020", "title": "", "text": "data compilations, in any form, of public offices or agencies, setting forth ... (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Fed.R.Evid. 803(8). The OCRC letter contains a recitation of facts that tracks closely the events documented in the affidavits submitted by the defendant: that the plaintiff was required to fill out a job application, but a Caucasian applicant who was offered the position the same day as the interview was not. The letter also contains conclusions beyond mere factual findings. However, the Supreme Court has held that a report that contains the agency’s conclusion or opinion formed as the result of a factual investigation is admissible under this rule. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988); see also Bank of Lexington & Trust Co. v. Vining-Sparks Securities, Inc., 959 F.2d 606, 616 (6th Cir.1992) (“Opinions, conclusions, and evaluations, as well as facts, fall within the Rule 803(8)(C) exception.”). Moreover, the Supreme Court, citing Rule 803(8), has observed that “[p]rior administrative findings made with respect to an employment discrimination claim may, of course, be admitted as evidence at a federal-sector trial de novo.” Chandler v. Roudebush, 425 U.S. 840, 863 n. 39, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). The OCRC letter concludes with a finding of probable cause that unlawful discrimination occurred. The district court gave no evidentiary weight to that finding for several reasons. We do not agree with all of them, but we do concur that the letter does not establish a material fact question. The district court first cited this court’s unpublished opinion in E.E.O.C. v. Ford Motor Co., 98 F.3d 1341, 1996 WL 557800 (6th Cir.1996) (table), which authorized district courts to adopt a blanket rule refusing the admission of EEOC probable cause determinations at trial. In Ford Motor Co., the court noted that “an EEOC cause determination carries an evidentiary value of practically zero,” and" }, { "docid": "15572869", "title": "", "text": "814 (D.D.C.1987) (draft report of Congressional subcommittee not admissible under Fed.R.Evid. 803(8)(C) because investigation was not within scope of subcommittee’s investigatory authority, but rather, was carried out as part of its oversight responsibilities). The factual findings read from the SIC report to the jury were more than mere recitations of factual observations. Although they represented the final evaluation and conclusions of the Commission, they were based on its factual studies. Whether they are sufficiently reliable to be admissible under Rule 803(8)(C) is the question to which we now turn. C. Criteria Of Trustworthiness Courts have looked to a number of factors in determining whether conclusions in an official report should be admitted as an exception to the hearsay rule. The Advisory Committee, which drafted the Federal Rules of Evidence, in its notes proposed a “nonexclusive” list of four factors emphasizing reliability. Advisory Committee note to 803(8), 56 F.R.D. 183, 313 (1972); Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 449 n. 11, 102 L.Ed.2d 445 (1988). These are listed infra, (l)-(4). To these four we add a fifth, the finality of the findings. This was one of several additional guides employed by Judge Becker in a massive antitrust case in which the court was required to rule on the admissibility of hundreds of thousands of public documents. See Zenith Radio Corp. v. Matsushita Electric Industrial Co., 505 F.Supp. 1125, 1147 (E.D.Pa.1980), aff'd in part and rev’d in part sub nom. In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir.1983), rev’d on other grounds, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The tests useful to a court considering admissibility of conclusions under Rule 803(8)(C) are: 1. the timeliness of the investigation; 2. the special skill or experience of the officials conducting the investigation; 3. the procedures governing any hearings; 4. the existence of motivation problems on the part of either the investigators or other sources of information; 5. the finality of the findings made in the report. Interpretation of the original four suggestions of the Advisory Committee is greatly aided by Judge" }, { "docid": "3884779", "title": "", "text": "Sudanese, government continued, to harbor international terrorist groups in Sudan”); U.S. Dep’t of State, Patterns of Global Terrorism: 1998 (“Sudan provides safe haven to some, of the world’s most violent, terrorist groups, including Usama Bin Ladin’s al-Qaida”); U.S. Dep’t of State,-Patterns of Global Terrorism: 2000 (2001) (“Sudan .., continued to be used as a safe haven by members -of various groups, including associates of Osama bin Laden’s al-Qaeda organization”). These reports both bolster the experts’ conclusions about Sudan’s material support for the al Qaeda. embassy bombings and.,independently show the plaintiffs’ claims “ha[ve] some factual, basis,” as required by § 1608(e). Giampaoli, 628 F.2d at 1194. As with the expert testimony, Sudan contends these reports are inadmissible hearsay. The plaintiffs urge the State Department reports were admissible under the hearsay exception for public records. See Fed. R. Evid. 803(8). That exception allows the admission of “a record or statement of a public office if’ it: (1) contains factual findings (2) from a legally authorized investigation. Id at 803(8)(iii). Pursuant to the “broad approach to admissibility” under Rule 803(8), a court may also admit “conclusion[sJ or opinion[s]” contained within a public record. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988).' Once proffered, a public record is presumptively admissible, and the opponent bears the burden of showing it is unreliable. Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d Cir. 2000). The State Department’s Patterns of Global Terrorism reports fit squarely within the public records exception., First, the reports contain both, factual findings and conclusions on Sudan’s support for terrorism in general and al Qaeda in. particular. Second, the reports were created pursuant to statute, see 22 U.S.C. § 2656f(a) (requiring annual reports on terrorism), and are therefore the product of a “legally authorized investigation.” See Bridgeway, 201 F.3d at 143 (holding State Department reports required by statute are public records). Indeed, in contested FSIA proceedings we have previously approved admission of the very reports Sudan challenges, Simpson, 470 F.3d at 361; Kilburn, 277 F.Supp.2d at 33, aff'd 376 F.3d at 1131, as have other" }, { "docid": "7919109", "title": "", "text": "friends and relatives, and from evidence obtained at the scene of the crash. Appellants object to the admission of the detective’s testimony and his report. Based on his analysis of passenger records and information obtained from passengers’ and crew members’ friends and relatives, Henderson determined that the Samsonite bag containing the bomb was an unaccompanied bag from the Frankfurt flight. Defendants moved to exclude his reports as based on multiple’ layers of hearsay; Henderson had compiled his reports based upon other officers’ reports of interviews they had conducted in this necessarily lengthy and involved investigation. We believe the evidence was properly received under Fed.R.Evid. 803(8)(C), which provides an exception to the hearsay rule for reports of public agencies containing “factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.” See also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167, 109 S.Ct. 439, 448, 102 L.Ed.2d 445 (1988) (upholding broad admissibility of facts in government reports, unless circumstances demonstrate lack of trustworthiness). The determination as to any lack of trustworthiness remains one properly left to the district court, id., and its decision to admit a report under Fed.R.Evid. 803(8)(C) is one that we will uphold absent a mánifest error. See Gentile v. County of Suffolk, 926 F.2d 142, 151 (2d Cir.1991). Here there was no explicit finding of trustworthiness, but no such finding is required before an official report under Rule 803(8)(C) may be received. The plain language of the rule establishes general admissibility, unless a report is deemed to be untrustworthy. See Fed.R.Evid. 803(8) advisory committee’s note; Kehm v. Procter & Gamble Mfg. Co., 724 F.2d 613, 618 (8th Cir.1983). The district court carefully examined the report and did not make a finding of a lack of trustworthiness. Although the trial court did provide a detailed consideration of reliability concerns, it had no duty to state it found the report trustworthy. In any event, adequate evidence demonstrates trustworthiness in the case at hand. The Advisory Committee’s Note on Rule 803(8) suggests several factors to" }, { "docid": "12471906", "title": "", "text": "public official will perform his duty properly,” without bias or improper motivation. Kehm v. Procter & Gamble Mfg. Co., 724 F.2d 613, 618 (8th Cir.1983) (quoting Notes of Advisory Committee on Proposed Rule F.R.Ev. 803(8)); United States v. Versaint, 849 F.2d 827, 832 (3rd Cir.1988). The burden is on the party opposing admission to demonstrate the statement’s untrustworthiness. Kehm, 724 F.2d at 618. The Supreme Court made clear in Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 446, 102 L.Ed.2d 445 (1988), that “factually based conclusions or opinions are not on that account excluded from the scope of Rule 803(8)(C).” This includes opinions on the ultimate factual issues in a lawsuit. Id. 109 S.Ct. at 450 (admitting Navy investigative report of air crash which opined that pilot error was most likely cause of crash); Litton Systems, Inc. v. A.T. & T., 700 F.2d 785, 818 (2nd Cir.1983) (admitting FCC decisions that defendant’s tariffs were “unreasonable” and “discriminatory”), cert. denied, 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984). In so holding, the Supreme Court stated: A broad approach to admissibility under Rule 803(8)(C), as we have outlined it, is also consistent with the Federal Rules’ general approach of relaxing the traditional barriers to “opinion” testimony. Rules 702-705 permit experts to testify in the form of an opinion, and without any exclusion of opinions on “ultimate issues.” And Rule 701 permits even a lay witness to testify in the form of opinions or inferences drawn from her observations when testimony in that form will be helpful to the trier of fact. We see no reason to strain to reach an interpretation of Rule 803(8)(C) that is contrary to the liberal thrust of the Federal Rules. Beech Aircraft, 109 S.Ct. at 450. The Court concluded that as long as the public report contains factual findings and satisfies Rule 8Q3(8)(C)’s trustworthiness requirement, the opinions and conclusions incorporated therein should be admitted over a hearsay exception. Id. The Supreme Court also cited approvingly, in footnote 11 of its opinion, the non-exclusive list of four factors proposed by the Advisory Committee" }, { "docid": "16039907", "title": "", "text": "or equivalent state agencies” fall within the ambit of the public records exception to hearsay. Paolitto v. John Brown E. & C., Inc., 151 F.3d 60, 64 (2d Cir.1998). The party seeking to strike public records has the burden to establish lack of trustworthiness. Bridgeway, 201 F.3d at 143 (citing Ariza v. City of New York, 139 F.3d 132, 134 (2d Cir.1998)); see Fed.R.Evid. 803(8)(C) advisory committee’s note (“Hence the rule ... assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present.”). In assessing trustworthiness, the court considers (1) the timeliness of the investigation; (2) the special skill or experience of the official; (3) whether a hearing was held and the level at which conducted;, [and] (4) [any motive of the investigator inconsistent with accuracy]. Fed.R.Evid. 803(8)(C) advisory committee’s note. The court may consider other factors, including the finality of the report or record as an official finding. Gentile v. County of Suffolk 129 F.R.D. 435, 458 (E.D.N.Y. 1990) (citing United Air Lines, Inc. v. Austin Travel Corp., 867 F.2d 737, 742-43 (2d Cir.1989)). Ultimately, the court has the discretion to determine “whether the hearsay document offered in evidence has sufficient independent indicia of reliability to justify its admission.” City of New York v. Pullman Inc., 662 F.2d 910, 914 (2d Cir.1981), and ultimately whether to exclude an agency’s Reasonable Cause finding and any evidence underlying that finding. EEOC v. Regency Architectural Metals Corp., 896 F.Supp. 260, 263 (D.Conn.1995). In this case, the CHRO document is a preliminary investigation into whether discrimination or retaliatory conduct against plaintiff could have occurred. (PI. Exh. 8). Upon review of the findings and determinations by the CHRO, the court finds this report unreliable. While the investigator, Yvonne Duncan, found reasonable cause that plaintiff had been subject to retaliation, her conclusions are based largely on unreliable hearsay, and what plaintiff stated. It is clear that Duncan largely disregarded the testimony of the DPH officials, and significant evidence that provided support for the finding that plaintiff was terminated for legitimate reasons having nothing to do with her whistle-blower" }, { "docid": "17449627", "title": "", "text": "as a gatekeeper” when such issues arise. United States v. Holmquist, 36 F.3d 154, 167 (1st Cir.1994). “If the court discerns enough support in the record to warrant a reasonable person in determining that the evidence [could support that which it sets out to support, then] the weight to be given to the evidence is left to the jury.” United States v. Paulino, 13 F.3d 20, 23 (1st Cir.1994). Rule 104(a) is inapposite here, for no foundational facts were in issue. Virtually by definition, foundational facts are those facts upon which the admissibility of evidence rests. See United States v. Piper, 298 F.3d 47, 52 (1st Cir.2002); Paulino, 13 F.3d at 23. Those facts include matters such as the genuineness of a document or statement, the maker’s personal knowledge, and the like. See, e.g., Newton v. Ryder Transp. Servs., 206 F.3d 772, 775 (8th Cir.2000); Ricketts v. City of Hartford, 74 F.3d 1397, 1410 (2d Cir.1996); Onujiogu v. United States, 817 F.2d 3, 5 (1st Cir.1987). In this instance, those facts (e.g., the authenticity of the death certificate and the authority of the medical examiner to sign it) were never in dispute. The district court’s problem did not go to any foundational fact, but, rather, to the very core of the evidence: its persuasiveness. Where, as here, a piece of evidence rests upon a proper foundation, Rule 104(a) does not permit a trial judge to usurp the jury’s function and exclude the evidence based on the judge’s determination that it lacks persuasive force. The district court also suggested that Fed.R.Evid. 803(8) empowered it to redact the death certificate based on the perceived lack of credibility. We do not agree. The rule provides that public records are not excluded by the hearsay rule “unless the sources of information or other circumstances indicate lack of trustworthiness.” Fed.R.Evid. 803(8). Trustworthiness in this context refers to matters such as whether the evidence is self-authenticating or contemporaneously compiled by a person of adequate skill and experience. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167 n. 11, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988);" }, { "docid": "8895670", "title": "", "text": "exception is justified on the assumption that public officials will perform their duties properly and without bias. See Fed.R.Evid. 803(8) advisory committee’s note; United States v. De La Cruz, 469 F.3d 1064, 1069 (7th Cir.2006). Three categories of public records are covered by the exception, Fed.R.Evid. 803(8)(A)(i)-(iii) (formerly FRE 803(8)(A)-(C), respectively), and though there are important differences among the three, many public records fall into more than one category. See Mueller et al., Evidence Practice Under the Rules, supra, § 8.49, at 1008. The first category consists of records that set out a public office’s activities. Fed.R.Evid. 803(8)(A)(i); see, e.g., Chesapeake & Delaware Canal Co. v. United States, 250 U.S. 123, 128-29, 39 S.Ct. 407, 63 L.Ed. 889 (1919) (Treasury records); United States v. Lechuga, 975 F.2d 397, 399 (7th Cir.1992) (court records). The second category encompasses records that set out “a matter observed while under a legal duty to report,” though there is an exception to the exception in the context of criminal cases for matters observed by law-enforcement personnel. Fed.R.Evid. 803(8)(A)(ii); see, e.g., United States v. Meyer, 113 F.2d 387, 397-98 (7th Cir.1940) (map prepared by government engineer based on data compiled from workers under his supervision). The third category is comprised of records setting forth “factual findings from a legally authorized investigation” (though in criminal cases they may be used only against the government), Fed.R.Evid. 803(8)(A)(iii), which includes evaluative reports containing opinions and conclusions. See Beech Aircraft Corp., 488 U.S. at 166-70, 109 S.Ct. 439; Young v. James Green Mgmt., Inc., 327 F.3d 616, 624 (7th Cir.2003) (administrative findings concerning discrimination claims). Records falling into one of these categories are presumptively admissible but may be excluded, in the court’s discretion, if the party opposing admission establishes that the circumstances indicate a lack of trustworthiness. Fed.R.Evid. 803(8)(B); see also United States v. Romo, 914 F.2d 889, 896 (7th Cir.1990). As explained above, the defendants have failed to identify a hearsay exception applicable to Binns’s statement to Trooper Litt (and Binns’s statement to Niles) and have essentially conceded that admission of Trooper Litt’s testimony regarding that statement (as well" }, { "docid": "17449628", "title": "", "text": "the death certificate and the authority of the medical examiner to sign it) were never in dispute. The district court’s problem did not go to any foundational fact, but, rather, to the very core of the evidence: its persuasiveness. Where, as here, a piece of evidence rests upon a proper foundation, Rule 104(a) does not permit a trial judge to usurp the jury’s function and exclude the evidence based on the judge’s determination that it lacks persuasive force. The district court also suggested that Fed.R.Evid. 803(8) empowered it to redact the death certificate based on the perceived lack of credibility. We do not agree. The rule provides that public records are not excluded by the hearsay rule “unless the sources of information or other circumstances indicate lack of trustworthiness.” Fed.R.Evid. 803(8). Trustworthiness in this context refers to matters such as whether the evidence is self-authenticating or contemporaneously compiled by a person of adequate skill and experience. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167 n. 11, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988); FDIC v. Houde, 90 F.3d 600, 606 (1st Cir.1996); see also Fed. R.Evid. 803 advisory comm. notes to ¶ (8), subsection (c). As the district court’s explication makes plain, the court did not base its ruling on the manner in which the death certificate was completed, the sources of information utilized, the credentials of the person completing it, or how the record was maintained. Instead, the court premised its ruling on the substance of what the death certificate contained. This was error: Rule 803(8) does not authorize a trial court to deem evidence untrustworthy (and thus inadmissible) simply because the court finds the gist of the evidence incredible or unpersuasive. For these reasons, we conclude that the mid-trial redaction of the death certificate, based on the district court’s assessment that it lacked credibility, constituted error. B. Was the Error Harmless? Our determination that the district court erred in redacting the death certificate on the basis of a credibility determination does not end our inquiry. That error necessitates a new trial only if it affected the" }, { "docid": "15572862", "title": "", "text": "of their official duties under the direction or permission of the law. See Bradford Trust Co. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 805 F.2d 49, 54 (2d Cir.1986) (it is assumed that “public officials perform their duties properly without motive or interest other than to submit accurate and fair reports”); Fraley v. Rockwell Int’l Corp., 470 F.Supp. 1264, 1266 (S.D.Ohio 1979) (under Rule 803(8)(C) investigation need only be permitted by law; it need not be required). There are practical reasons for allowing public reports to be admitted. It would be almost impossible to require individual investigators to appear in court to testify any time the results of an investigation were probative of issues in individual litigation. Few individual litigants—particularly in civil rights cases—have the resources to duplicate the type of exhaustive reports produced by public agencies and funded by the taxpayers. See Note, The Trustworthiness of Government Evaluative Reports Under Federal Rule of Evidence 803(8)(C), 96 Harv.L.Rev. 492, 509 (1982) (suggesting that Rule 803(8)(C) operates' as an important link between administrative and judicial systems by allowing private litigants to take advantage of a valuable and generally reliable public resource). Litigants should not be denied use of critical evidence because they lack the financial ability to duplicate it. See id. at 505-06 (placing restrictions on admissibility of government reports favors institutional parties and suggests class bias). A wide variety of public documents have been admitted pursuant to Rule 803(8)(C). See, e.g., Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 443, 102 L.Ed.2d 445 (1988) (Navy report investigating and giving opinion on cause of air crash); Meriwether v. Coughlin, 879 F.2d 1037, 1039 (2d Cir.1989) (SIC Report entitled “Corruption and Abuses in the Correctional System: The Green Haven Correctional Facility,” concluding that there was widespread and institutionalized corruption among correctional staff); Bradford Trust Co. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 805 F.2d 49, 54-55 (2d Cir.1986) (FBI reports prepared for related criminal action); In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir.1983) (United States Treasury reports prepared under the Dumping Act, as" }, { "docid": "9739014", "title": "", "text": "reports are clearly hearsay. Fed.R.Evid. 801. Hearsay is generally inadmissible, Fed.R.Evid. 802, because oath, personal appearance at trial, and cross-examination are the best mechanisms to ensure truthful and accurate testimony. Nevertheless, some classes of hearsay are excluded from Rule 802’s prohibition against the admissibility of hearsay. Rule 803 excludes certain types of statements from the hearsay ban even though the declarant is available as a witness, primarily because “under certain circumstances, a statement, although it is hearsay, may still possess circumstantial guarantees of trustworthiness sufficient to justify its admission as evidence.” Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 280 (5th Cir.1991). Rule 803(8) excludes from the hearsay rule certain public records and reports. The Advisory Committee notes that “^Justification for the exception is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record.” See also Bradford Trust Co. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 805 F.2d 49, 54 (2d Cir.1986) (Rule 803(8) “is premised on the assumption that public officials perform their duties properly without motive or interest other than to submit accurate and fair reports.”). Rule 803(8)(C) covers evaluative reports and provides in relevant part: (8) Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (C) in civil actions and proceedings ... factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Opinions and conclusions, as well as facts, are covered by Rule 803(8)(C). Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 450, 102 L.Ed.2d 445 (1988). The Advisory Committee “assumes admissibility [of 803(8)(C) reports] in the first instance.” Thus, evaluative reports are presumed not to be excluded under the hearsay rule unless there are indications of untrustworthiness. If the reports are untrustworthy, they are inadmissible. The Advisory Committee proposed a nonexclusive list of four factors which are helpful in determining trustworthiness: (1) the timeliness of the investigation; (2) the special skill or expertise" }, { "docid": "15572867", "title": "", "text": "“[F]actually based conclusions or opinions are not on that account excluded from the scope of Rule 803(8)(C).” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 446, 102 L.Ed.2d 445 (1988). Opinions and conclusions in official reports are admissible if they are “based on factual investigation.” Id. 109 S.Ct. at 449. Beech Aircraft did not explicitly address the issue of an evaluative report’s reliability, but merely noted that Rule 803(8) “requires the [trial] court to make a determination as to whether the report, or any portion thereof, is sufficiently trustworthy to be admitted.” Beech Aircraft, Id. at 449. The credibility of the SIC report itself was implicitly acknowledged in a recent Eastern District case. See Quartararo v. Mantello, 715 F.Supp. 449, 466 & nn. 17, 18 (E.D.N.Y.) (Korman, J.) (granting a habeas petition because “petitioner’s confessions were improperly obtained and erroneously used against him at his trial”), aff'd mem., 888 F.2d 126 (2d Cir.1989). Quartararo found that the Suffolk County Police “deliberately violated the Constitution of the United States and the laws of the State of New York to obtain a confession” from the petitioner, who was convicted of homicide. Id. at 466. The court observed that the State Investigation Commission had found that “the manner in which [the police] conducted the investigation” into the victim’s death to be “characteristic of conduct long tolerated by responsible officials of the Suffolk County Police Department and the District Attorney’s Office____” Id. at 466 & n. 18 (citing SIC report at 28). It is incontrovertible that the Temporary Commission of Investigation of the State of New York had the authority pursuant to its enabling statute to investigate Suffolk County’s law enforcement agencies. See N.Y.Unconsol.Law § 7502; Henry v. New York State Comm’n of Investigation, 141 Misc.2d 849, 535 N.Y.S.2d 859 (Sup.Ct.) (refusing to enjoin Commission from issuing public report of its Suffolk County investigation and holding that Commission did not exceed its jurisdiction or violate rights of those being investigated), aff'd, 143 A.D.2d 914, 533 N.Y.S.2d 690 (2d Dep’t 1988). Compare, e.g., Pearce v. E.F. Hutton Group, Inc., 653 F.Supp. 810," }, { "docid": "6966840", "title": "", "text": "nothing establishing the reliability of the underlying reports. On cross-examination, Scheid, who had been solely responsible for EXIS since 1977, admitted that no agency outside of the ATF was required by law to send reports to the EXIS database and that state and local agencies submitting reports were not required to follow any express procedures or conform to any specific standards in collecting or recording the reported information. Indeed, it is far from clear the extent to which information memorialized in any of the reports derives from laboratory analyses, on-the-seene observations of police officers, second-hand descriptions of the device by layperson witnesses, or some other source. Cf. United States v. Scholle, 553 F.2d 1109, 1123-25 (8th Cir.) (allowing printouts from Drug Enforcement Administration (“DEA”) computer database where database comprised only chemical analyses performed at regional DEA laboratories), cert. denied, 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 (1977). Scheid further testified that the submitted reports need not be signed, and that nothing required the author of a submitted report to have personal knowledge of its contents, see Fed.R.Evid. 803 advisory committee’s note (“In a hearsay situation, the declarant is, of course, a witness, and neither this rule nor Rule 804 dispenses with the requirement of firsthand knowledge.”); Fed.R.Evid. 803(6) (business record must be recorded by or from information supplied by an individual with personal knowledge), or for that matter to be qualified as a bomb investigator, see Matthews v. Ashland Chem., Inc., 770 F.2d 1303, 1309-10 (5th Cir.1985); 4 Jack B. Weinstein et al., Weinstein’s Evidence, ¶803(8)[03], at 803-283 (“Questions of the qualification of the expert can be raised as one of the circumstances indicating lack of trustworthiness.”); cf. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167 n. 11, 109 S.Ct. 439, 449 n. 11, 102 L.Ed.2d 445 (1988) (“investigator’s skill or experience” is factor establishing trustworthiness of government evaluative report). Finally, Scheid admitted that he employed no procedures for verifying or updating information in the EXIS database that had been submitted by agencies other than ATF. The underlying reports, arguably, come closest to falling within the hearsay" } ]

[ { "docid": "23435501", "title": "", "text": "McAlester-Edwards Co., 262 U.S. 200, 43 S.Ct. 580, 67 L.Ed. 949 (1923); Payne v. Central Pac. Ry., 255 U.S. 228, 41 S.Ct. 314, 65 L.Ed. 598 (1921); Lane v. Hoglund, 244 U.S. 174, 37 S.Ct. 558, 61 L.Ed. 1066 (1917); Ballinger v. United States ex rel. Frost, 216 U.S. 240, 30 S.Ct. 338, 54 L.Ed. 464 (1910). Judge Browning of our court, in a thorough study of the Larson-MaloneDugan trilogy, has written that the language of the Dugan opinion refuted the possibility that Larson might stand for the broad proposition that sovereign immunity precluded all suits, although based on unconstitutional or ultra vires acts, for affirmative relief or for the disposition of property of the United States. Turner v. Kings River Conservation Dist., 360 F.2d 184, 189-190 (9th Cir. 1966). We read, at 190, “We conclude from this that although the relief sought may be such that under the ‘general rule’ a suit would appear to be one against the sovereign, the action is nonetheless maintainable against government officers under the two ‘exceptions’ to the ‘general rule’ if the acts of the officers were prohibited by statute or the Constitution.” We reaffirm our position in Turner that the Larson opinion was not intended to preclude, in the name of sovereign immunity, all suits for affirmative relief or for the recovery of property of the United States. We believe that the Court’s footnote 11 in Larson means that the purposes for the doctrine of sovereign immunity may be controlling in some suits against officers so that the suits must be dismissed as suits against the Government, even though the officers were not acting pursuant to valid statutory authority, because the relief sought would work an intolerable burden on governmental functions, outweighing any consideration of private harm. In such cases a party must be denied all judicial relief other than that available in a possible action for damages. See, e.g., Morrison v. Work, 266 U.S. 481, 485-486, 45 S.Ct. 149, 69 L.Ed. 394 (1924) (Opinion of the Court by Mr. Justice Brandeis). Although the Supreme Court in Dugan held that the federal" } ]

[ { "docid": "12588865", "title": "", "text": "that remedies for unlawful conduct should be designed to make its victims whole. For that reason, it is not surprising that courts have chafed under the limits established by Larson’s eleventh footnote. Taking advantage of the perceived permissive language of the footnote — lawsuits “may fail” — the Ninth Circuit has elected to ignore the limit altogether, at least so long as the affirmative relief requested would not impose an “intolerable burden” on the government’s functioning. State of Washington v. Udall, 417 F.2d 1310, 1318 (9th Cir.1969). The Fifth and Seventh Circuits have followed the Ninth. Schlafly v. Volpe, 495 F.2d 273, 280 (7th Cir.1974); Clark v. United States, 691 F.2d 837, 840 (7th Cir.1982); Saine v. Hospital Authority of Hall County, 502 F.2d 1033, 1037 (5th Cir.1974). See also Marcello v. Regan, 574 F.Supp. 586, 595 (D.R.I.1983). Whatever constructions other circuits may have placed upon the Larson footnote, Second Circuit authority is of course binding on me. That leads to a consideration of Judge Friendly’s opinion in Knight v. State of New York, 443 F.2d 415, 419-420 (2d Cir.1971). The plaintiff in Knight owned a section of land appropriated by the State for the purpose of building a highway. Under the applicable statute, title to the land vested in the State immediately upon the State’s filing a description of the property with the clerk of the county in which the land was situated. A pre-appropriation hearing was neither required by the statute nor actually held, although plaintiff apparently had a post-appropriation remedy in state court under a different statute. Rather than invoking that remedy, plaintiff chose instead to sue the State in federal court, alleging a taking without due process, and seeking the affirmative relief of setting aside all or part of the appropriation. Judge Friendly’s opinion for the Second Circuit initially upheld dismissal of the action on Eleventh Amendment grounds. 443 F.2d at 419. Judge Friendly’s opinion reaches the sovereign immunity question only in considering whether leave should have been granted to amend the complaint so that the suit might proceed against the commissioner of transportation, thereby avoiding" }, { "docid": "822084", "title": "", "text": "doctrine did not bar action challenging allegedly unconstitutional CSC regulation); Malone v. Bowdoin, 369 U.S. 643, 648, 82 S.Ct. 980, 8 L.Ed.2d 168 (1963); Dugan v. Rank, supra, 372 U.S. at 620, 83 S.Ct. 999. While the Second Circuit has suggested that the Larson footnote may still describe the current state of the law, Knight v. New York, supra, 443 F.2d at 421, other circuits have concluded that the “ruling recognizing the two jurisdictional exceptions is not modified or lessened in force by the footnote,” West Coast Exploration Co. v. McKay, 93 U.S.App.D.C. 307, 213 F.2d 582 (D.C.Cir.), cert. denied, 347 U.S. 989, 74 S.Ct. 850, 98 L.Ed. 1123 (1954), and that the “opinion was not intended to preclude in the name of sovereign immunity, all suits for affirmative relief,” Washington v. Udall, 417 F.2d 1310, 1318 (9th Cir. 1969) (noting that the Larson footnote says that “a suit may fail,” not that it must fail, if the relief requested for an unconstitutional or unauthorized act requires affirmative action by the sovereign). See Penn v. United States, 350 F.Supp. 752, 755 (N.D.Ala.1972). The Court concludes that the Larson footnote’s qualifying statement does not bar Doe from pursuing her claim that the CSC’s conduct violated her constitutional rights. First, it is questionable whether the Larson footnote should be deemed controlling over the Court’s other and more recent statements regarding the immunity exceptions. Second, and more importantly, it would be inappropriate to describe all the relief requested by Doe as requiring affirmative action by the government. Not only does Doe also seek a declaratory judgment, but part of the relief requested could be viewed as the cessation of unlawful conduct, not the performance of affirmative acts, a distinction that has been drawn by the Second Circuit in Berk v. Laird, supra, 429 F.2d at 306. See also Cortright v. Resor, 325 F.Supp. 797, 813 (E.D.N.Y.), rev’d on other grounds, 447 F.2d 245 (2d Cir. 1971), cert. denied sub nom. Cortright v. Froehlke, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1972) (“sovereign immunity is not a bar if the public official" }, { "docid": "12588872", "title": "", "text": "bar affirmative injunctive relief in actions alleging a constitutional violation. However, the pronouncement is self-proclaimed dictum. Even if Smith’s discussion of sovereign immunity took the form of a holding, it would then appear to overrule Knight, supra, which the Smith panel did not even mention. Ordinarily a single panel of the Second Circuit does not overrule the ruling of a prior panel without first consulting the whole court. See, B.K. Instrument, supra, 715 F.2d at 717. If after such a consultation the court refuses an en banc hearing, the earlier decision controls. Furman v. Cirrito, 741 F.2d 524, 525 (2d Cir.1984). Furthermore, the Smith panel, while failing to cite either Knight or Berk, finds authority for a direction of affirmative action (as did Judge McLaughlin) in Hampton v. Mow Sun Wong, 426 U.S. 88, 93 n. 5, 96 S.Ct. 1895, 1900 n. 5 (1975). With due deference, I do not see how the cited footnote in Hampton is instructive on the issue at hand. It does no more than note the district court’s ruling that sovereign immunity had been waived in the circumstances of the case. The Supreme Court granted certiorari in Hampton to consider the constitutionality of a United States Civil Service Commission regulation barring resident aliens from federal civil service employment. The Court concluded that the regulation was unconstitutional. Hampton, a 5-4 decision, nowhere discusses the question of sovereign immunity as a bar to suit for affirmative injunctive relief. The district court’s decision in Hampton indicates that plaintiffs sought no more than cessation of unconstitutional activity, specifically the enforcement of an allegedly unconstitutional policy. Mow Sun Wong v. Hampton, 333 F.Supp. 527, 529 (N.D.Cal.1971), rev’d, 500 F.2d 1031 (9th Cir.1974), aff'd, 426 U.S. 88, 96 S.Ct. 1895 (1975). Such relief fits comfortably within Larson. I conclude that the law of the Second Circuit is declared in Knight and Berk; and that the law of this circuit, in its interpretation of footnote 11 in Larson, applies the doctrine of sovereign immunity so as to foreclose affirmative injunctive relief in the case at bar. III. Tucker Act As an alternative" }, { "docid": "12588864", "title": "", "text": "unlawful or unconstitutional conduct of government officials and request only a cessation of the offensive behavior seek nothing from the sovereign. The cessation of an official’s unlawful behavior restores the official to a state of grace with the sovereign and her laws. Granting the requested relief will affect neither government property nor the lawful behavior of governmental officials; only “non-sovereign,” — i.e., unlawful— government activity is affected. But this fiction cannot readily accommodate lawsuits which seek to cause federal officials to act rather than stop acting, for the officials when taking the directed actions would be acting lawfully, and thus in their roles as agents of the sovereign. The sovereign not having consented to such direction, the doctrine of immunity bars it. By rigorously adhering to the logical dictates of the fiction in Larson, the Supreme Court implicitly held that individuals who are harmed by unlawful governmental activity are assured no more remedy than that the activity will not happen again. While this is some comfort, it runs counter to the traditional common law notion that remedies for unlawful conduct should be designed to make its victims whole. For that reason, it is not surprising that courts have chafed under the limits established by Larson’s eleventh footnote. Taking advantage of the perceived permissive language of the footnote — lawsuits “may fail” — the Ninth Circuit has elected to ignore the limit altogether, at least so long as the affirmative relief requested would not impose an “intolerable burden” on the government’s functioning. State of Washington v. Udall, 417 F.2d 1310, 1318 (9th Cir.1969). The Fifth and Seventh Circuits have followed the Ninth. Schlafly v. Volpe, 495 F.2d 273, 280 (7th Cir.1974); Clark v. United States, 691 F.2d 837, 840 (7th Cir.1982); Saine v. Hospital Authority of Hall County, 502 F.2d 1033, 1037 (5th Cir.1974). See also Marcello v. Regan, 574 F.Supp. 586, 595 (D.R.I.1983). Whatever constructions other circuits may have placed upon the Larson footnote, Second Circuit authority is of course binding on me. That leads to a consideration of Judge Friendly’s opinion in Knight v. State of New York, 443" }, { "docid": "822083", "title": "", "text": "a footnote stating: Of course, a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property. Id. at n.ll (citation omitted). This footnote has provoked considerable discourse, mostly critical, among courts and commentators. See, e. g., Knight v. New York, supra, 443 F.2d at 420; Byse, Proposed Reforms in Federal “Nonstatutory” Judicial Review: Sovereign Immunity Indispensable Parties, Mandamus, 75 Harv.L.Rev. 1479, 1485-93 (1962); Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1, 29-37 (1963). And the Supreme Court has reiterated and applied its initial statement of the immunity exceptions without the qualification described in the footnote. See, e. g., Hampton v. Mow Sun Wong, 426 U.S. 88, 93 n.5, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1975) (noting with approval district court’s ruling that sovereign immunity doctrine did not bar action challenging allegedly unconstitutional CSC regulation); Malone v. Bowdoin, 369 U.S. 643, 648, 82 S.Ct. 980, 8 L.Ed.2d 168 (1963); Dugan v. Rank, supra, 372 U.S. at 620, 83 S.Ct. 999. While the Second Circuit has suggested that the Larson footnote may still describe the current state of the law, Knight v. New York, supra, 443 F.2d at 421, other circuits have concluded that the “ruling recognizing the two jurisdictional exceptions is not modified or lessened in force by the footnote,” West Coast Exploration Co. v. McKay, 93 U.S.App.D.C. 307, 213 F.2d 582 (D.C.Cir.), cert. denied, 347 U.S. 989, 74 S.Ct. 850, 98 L.Ed. 1123 (1954), and that the “opinion was not intended to preclude in the name of sovereign immunity, all suits for affirmative relief,” Washington v. Udall, 417 F.2d 1310, 1318 (9th Cir. 1969) (noting that the Larson footnote says that “a suit may fail,” not that it must fail, if the relief requested for an unconstitutional or unauthorized act requires affirmative action by the sovereign). See Penn v." }, { "docid": "12588868", "title": "", "text": "plaintiff has an adequate remedy in the New York courts and a decision by us, only dubiously valid, sustaining federal jurisdiction over a suit against New York officials would open the way for a host of actions on a subject where the knowledge of local conditions possessed by state courts may be peculiarly important. Ibid. At the end of its opinion in Knight, the Second Circuit rejected the plaintiffs appeal to state law authorities which arguably could “be taken as expressing a less extensive notion of sovereign immunity than the Supreme Court has recognized for federal courts in the Larson footnote____” Id. at 422. I read Knight as holding that, at least until the Supreme Court clarifies the matter, Larson’s footnote 11 requires the application of sovereign immunity if the requested relief requires affirmative action by the sovereign. To be sure, Judge Friendly regarded that course as “particularly attractive” where a plaintiff has an adequate alternative remedy in state courts; but I do not read Knight as requiring the existence of such a remedy before sovereign immunity becomes applicable. That interpretation of Knight is consistent with the Second Circuit’s prior decision in Berk v. Laird, 429 F.2d 302 (2d Cir.1970), cert. denied sub nom. Orlando v. Laird, 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971). A private soldier, ordered to report to Vietnam, sought judgment declaring that his superiors were without authority to issue such orders, and a permanent injunction forbidding them to do so. Addressing the jurisdictional question, the Second Circuit said in part through Judge Anderson: “Sovereign immunity is no bar to this action, since the complaint alleges that agents of the Government have exceeded their constitutional authority while purporting to act in the name of the sovereign. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-691, 69 S.Ct. 1457, 1461-62, 93 L.Ed. 1628 (1949). The requested relief does not require affirmative governmental action, but only that the agent involved cease certain allegedly improper conduct. Id. at 691, n. 11, 69 S.Ct. 1457; cf. State of Washington v. Udall, 417 F.2d 1310, 1317-1318 (9" }, { "docid": "10514612", "title": "", "text": "challenged, on procedural due process grounds, the validity of a state law which vested title to condemned property in the state without notice to the property owner or a hearing on the propriety of the taking. The Knight court held that it would have been open to plaintiff to seek to enjoin the condemnation before it occurred but that footnote eleven of Larson barred him from seeking the property’s return once title had vested in the state by operation of state law. In the present case, if plaintiffs’ factual allegations are true, title to the disputed land can never vest in the State of Rhode Island without the permission of the federal government, see note 8 supra, and thus the Knight holding does not apply to this case. More analogous to the present case is. West Coast Exploration Co. v. McKay, 93 U.S.App.D.C. 307, 213 F.2d 582, cert. denied, 347 U.S. 989, 74 S.Ct. 850, 98 L.Ed. 1123 (1954). In West Coast, the court, without distinguishing between unconstitutional takings and other types of constitutional violations, held that an allegation of unconstitutional or ultra vires official action was sufficient to avoid the ban on suits against the government and that this result was not changed merely because the relief sought required disposition of “public lands.” Id. at 596. . Defendant argues that plaintiffs’ case depends upon a claim of title resting upon erroneous conclusions of state law. As discussed in note 8, supra, this is not the case. Plaintiffs’ claim is based on federal law and upon facts, assumed to be true for the purpose of this motion, necessary to make the statute applicable to them. Defendant apparently takes the view that, in questions of mixed law and fact, the Court cannot assume the facts to be true. This is not the case. The rule is rather that “unsupported conclusions of law or of mixed fact and law are not [assumed to be true].” Stanton v. United States, 434 F.2d 1273, 1276 (5th Cir. 1970) (emphasis added). In the present case, the Court has decided, see Narragansett I, 418 F.Supp. at" }, { "docid": "11184937", "title": "", "text": "1457, 93 L.Ed. 1628 (1949). The Court in Dugan, citing Larson, also recognized that there were two exceptions to the doctrine’s applicability: “(1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void.” 372 U.S. at 621-22, 83 S.Ct. at 1007. See also Larson v. Domestic and Foreign Commerce Corp., supra, 337 U.S. at 689-90, 69 S.Ct. 1457. The plaintiff contends that since the action of the Secretary in withholding benefits without first affording him the opportunity for a hearing was unconstitutional, this case comes within the second exception to the doctrine. If it were not for a footnote included by the Supreme Court in its opinion in Larson and the implications of that footnote, the plaintiff would likely be correct. In Larson, the Court, after setting out the two general exceptions noted above, added in a footnote: Of course, a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property. 337 U.S. at 691 n. 11, 69 S.Ct. at 1462. This footnote, the subject of much controversy, has been interpreted by some courts to require applicability of the doctrine in any situation where the relief sought contemplates affirmative action by the government or the disposition of government property. See e. g., Knight v. New York, 443 F.2d 415, 420-21 (2d Cir. 1971); Zapata v. Smith, 437 F.2d 1024, 1025 (5th Cir. 1971). Some courts have avoided the footnote’s broader implications by (1) holding that the relief being sought was not “affirmative” in nature since the cessation of unauthorized conduct was the object of the suit, see, e. g., State Highway Commission of Missouri v. Volpe, 479 F.2d 1099, 1123 (8th Cir. 1973); Knox Hill Tenant Council v. Washington, 145 U.S.App.D.C." }, { "docid": "10514611", "title": "", "text": "Lee was its apparent holding that any allegation of an illegal taking, whether the illegality was founded upon a statutory or constitutional violation or whether it was merely tortious, mistaken or in breach of contract is sufficient to wrest property from the hands of the government. The other cases relied upon by defendant in support of the above view, Hawaii v. Gordon, 373 U.S. 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963); Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Fresno v. California, 372 U.S. 627, 83 S.Ct. 996, 10 L.Ed.2d 28 (1963); Sierra Club v. Hickel, 467 F.2d 1048 (6th Cir. 1972), cert. denied, 411 U.S. 920, 93 S.Ct. 1545, 36 L.Ed.2d 313 (1973), are likewise, as plaintiffs demonstrate, inapposite. In none of these cases is there any allegation that the official being sued exceeded his or her statutory or constitutional powers. Knight v. State of New York, 443 F.2d 415 (2d Cir. 1970), also relied on by defendant, differs crucially from the case at bar. In Knight, plaintiff challenged, on procedural due process grounds, the validity of a state law which vested title to condemned property in the state without notice to the property owner or a hearing on the propriety of the taking. The Knight court held that it would have been open to plaintiff to seek to enjoin the condemnation before it occurred but that footnote eleven of Larson barred him from seeking the property’s return once title had vested in the state by operation of state law. In the present case, if plaintiffs’ factual allegations are true, title to the disputed land can never vest in the State of Rhode Island without the permission of the federal government, see note 8 supra, and thus the Knight holding does not apply to this case. More analogous to the present case is. West Coast Exploration Co. v. McKay, 93 U.S.App.D.C. 307, 213 F.2d 582, cert. denied, 347 U.S. 989, 74 S.Ct. 850, 98 L.Ed. 1123 (1954). In West Coast, the court, without distinguishing between unconstitutional takings and other types of constitutional violations," }, { "docid": "822082", "title": "", "text": "equitable actions brought under § 1331.” Id. at 718. Stating that it was “constrained to disagree with the Second Circuit,” the Third Circuit therefore held that “section 702, when it applies, waives sovereign immunity in ‘nonstatutory’ review of agency action under section 1331.” Id. . This exception to the sovereign immunity doctrine was described by the Supreme Court in what has been called the “unfortunate opinion” of Larson v. Domestic & Foreign Commerce Corp., supra. Knight v. New York, 443 F.2d 415, 420 (2d Cir. 1971). The Larson Court stated that the immunity doctrine would not bar a suit against a government official in two ' types of cases: “where the officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions;” and where “the power has been conferred in form but the grant is lacking in substance because of constitutional invalidity.” Larson v. Domestic & Foreign Commerce Corp., supra, 337 U.S. at 689-91, 69 S.Ct. at 1461-1462. The Court then complicated this relatively straightforward rule by adding a footnote stating: Of course, a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property. Id. at n.ll (citation omitted). This footnote has provoked considerable discourse, mostly critical, among courts and commentators. See, e. g., Knight v. New York, supra, 443 F.2d at 420; Byse, Proposed Reforms in Federal “Nonstatutory” Judicial Review: Sovereign Immunity Indispensable Parties, Mandamus, 75 Harv.L.Rev. 1479, 1485-93 (1962); Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1, 29-37 (1963). And the Supreme Court has reiterated and applied its initial statement of the immunity exceptions without the qualification described in the footnote. See, e. g., Hampton v. Mow Sun Wong, 426 U.S. 88, 93 n.5, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1975) (noting with approval district court’s ruling that sovereign immunity" }, { "docid": "12588871", "title": "", "text": "on the merits. Affirming, the Second Circuit indicated agreement with the sovereign immunity point: “We are also inclined to accept the district court’s conclusion that Smith’s constitutional claims are not barred by the doctrine of sovereign immunity, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1948), even where the success of Smith’s claims would require affirmative action on the part of the government. This difficult sovereign immunity question need not be decided, however, because Smith’s constitutional claims cannot succeed on the merits.” 689 F.2d at 345. Footnote 7 in the Second Circuit’s opinion reads as follows: “Judge McLaughlin’s view that sovereign immunity does not apply in cases of alleged constitutional violations even where the sovereign is called upon to take affirmative action was proper. See Hampton v. Mow Sun Wong, 426 U.S. 88, 93 n. 5, 96 S.Ct. 1895, 1900 n. 5, 48 L.Ed.2d 495 (1975).” The quoted passage from Smith v. Lehman is useful to plaintiffs because it states, clearly enough, that sovereign immunity does not bar affirmative injunctive relief in actions alleging a constitutional violation. However, the pronouncement is self-proclaimed dictum. Even if Smith’s discussion of sovereign immunity took the form of a holding, it would then appear to overrule Knight, supra, which the Smith panel did not even mention. Ordinarily a single panel of the Second Circuit does not overrule the ruling of a prior panel without first consulting the whole court. See, B.K. Instrument, supra, 715 F.2d at 717. If after such a consultation the court refuses an en banc hearing, the earlier decision controls. Furman v. Cirrito, 741 F.2d 524, 525 (2d Cir.1984). Furthermore, the Smith panel, while failing to cite either Knight or Berk, finds authority for a direction of affirmative action (as did Judge McLaughlin) in Hampton v. Mow Sun Wong, 426 U.S. 88, 93 n. 5, 96 S.Ct. 1895, 1900 n. 5 (1975). With due deference, I do not see how the cited footnote in Hampton is instructive on the issue at hand. It does no more than note the district court’s ruling that" }, { "docid": "18015995", "title": "", "text": "North Carolina v. Temple, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849 (1890). Larson, 337 U.S. at 691 n. 11, 69 S.Ct. 1457. The Cherokee Nation claims that the Freedmen improperly seek “affirmative action” on the part of tribal officers. The Second Amended Complaint requests an injunction preventing Chief Smith “from holding further elections without a vote of all citizens, including the Freedmen.” Pls.’ Second Am. Compl. ¶ 74, J.A. 138. According to the tribe, this injunction “would restrain the Nation from holding its elections and require the Nation to take action to amend its constitution and voting laws to include Plaintiffs as citizens with voting rights.” Cherokee Nation’s Br. at 50. At oral argument, counsel for the tribe said further, “what the relief would do is, it would paralyze the Nation, it would stop the Nation from having any elections, unless the Nation took affirmative steps to amend its constitution.” Oral Arg. Recording at 8:27-8:37. Citing decisions of our sister circuits, Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir.1997); Shermoen v. United States, 982 F.2d 1312, 1320 (9th Cir.1992), the tribe tells us that “[t]he Ex parte Young fiction simply does not survive Plaintiffs’ requested relief.” Cherokee Nation’s Br. at 50. Whatever the Larson Court meant when it referred to “affirmative action,” we con- elude that this dicta does not limit the force of Ex parte Young in the case at hand. We begin with an examination of footnote 11, a Delphic pronouncement that has been the subject of great judicial and scholarly attention. See, e.g., Knight v. New York, 443 F.2d 415, 420 (2d Cir.1971) (Friendly, J.) (“The Larson footnote has become the subject of microscopic scholarly scrutiny.”); David P. Currie, Sovereign Immunity and Suits Against Government Officers, 1984 Sup.Ct. Rev. 149,158 (“There was a grain of truth in this wholly gratuitous dictum, but its principal effect was to sow confusion.”); David L. Shapiro, Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Haev. L. Rev. 61, 74 n. 80 (1984) (referring to “the Larson Court’s troublesome footnote 11”); Antonin Scalia, Sovereign Immunity and" }, { "docid": "12588867", "title": "", "text": "the Eleventh Amendment obstacle. That question the court answered in the negative, on the authority of the Larson footnote. Judge Friendly observed that “many regard” Larson as an “unfortunate opinion”; and that its footnote “has become the subject of microscopic scholarly scrutiny” and ever “broader assaults” of criticism. 443 F.2d at 420. Notwithstanding that criticism, the Knight opinion continues, the Supreme Court “has not shown itself disposed to narrow Larson.” Ibid. Judge Friendly then analyzes a number of subsequent Supreme Court cases, which in his view “may suggest that Larson’s footnote 11 was deemed controlling.” Id. at 421. It is then said in Knight: In any event, whether or not the Court could qualify note 11 without having to overrule any of these cases, the task of doing so, whether as regards suits against the United States or those encountering the bar of the Eleventh Amendment, is better left to the only body that can speak with authority. We find this course particularly attractive when, as has already been demonstrated and will further appear below, plaintiff has an adequate remedy in the New York courts and a decision by us, only dubiously valid, sustaining federal jurisdiction over a suit against New York officials would open the way for a host of actions on a subject where the knowledge of local conditions possessed by state courts may be peculiarly important. Ibid. At the end of its opinion in Knight, the Second Circuit rejected the plaintiffs appeal to state law authorities which arguably could “be taken as expressing a less extensive notion of sovereign immunity than the Supreme Court has recognized for federal courts in the Larson footnote____” Id. at 422. I read Knight as holding that, at least until the Supreme Court clarifies the matter, Larson’s footnote 11 requires the application of sovereign immunity if the requested relief requires affirmative action by the sovereign. To be sure, Judge Friendly regarded that course as “particularly attractive” where a plaintiff has an adequate alternative remedy in state courts; but I do not read Knight as requiring the existence of such a remedy before" }, { "docid": "3910426", "title": "", "text": "5 U.S.C. § 702, because that waiver applies only to \"agencies,” and the federal judiciary is not an agency within the meaning of the act, see 5 U.S.C. § 701(b)(1)(B) (excluding \"the courts of the United States” from the definition of statutory definition of agency); see also Richard H. Fallon, Jr., Daniel J. Meltzer, & David L. Shapiro, Hart & Wechsler’s The Federal Courts and The Federal System 969 (5th ed.2003). . As Judge Friendly observed in Knight v. New York, the Larson footnote has been sub jected to “microscopic scholarly scrutiny.’’ 443 F.2d 415, 420 (2d Cir.1971). Notably, Professor Louis L. Jaffe, seizing on the footnote's use of the phrase “may fail,” has stated that if \"may is read as may and not as must, it is unobjectionable.” L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L.Rev. 1, 34 (1963). But, “if a decree which requires 'affirmative action by the sovereign,’ e.g., grant of a license, of a civil service post or any other of the actions traditionally enforced by mandamus, if such a decree could no longer be made, then Larson would have worked a sharp and startling change .... There is nothing whatever in the opinion to indicate an intention to override such well-established doctrines, let alone any reason to do so.” Id. A number of courts agreed and interpreted the Larson footnote narrowly to preclude only those suits where the affirmative equitable relief sought would impose an “intolerable burden on governmental functions.” Clark v. United States, 691 F.2d 837, 840 (7th Cir.1982); Washington v. Udall, 417 F.2d 1310, 1317-18 (9th Cir.1969); Saine v. Hospital Auth., 502 F.2d 1033, 1037 (5th Cir.1974). This court, however, was not among them. In Knight v. New York, a case arising under the Eleventh Amendment, we stated that, absent further guidance by the Supreme Court, Larson precluded a federal court from ordering affirmative action by either the state or federal government employees in their official capacities. 443 F.2d at 420-21; cf. Berk v. Laird, 429 F.2d 302, 306 (2d Cir.1970) (holding that sovereign immunity was not a bar" }, { "docid": "2926792", "title": "", "text": "the second category embraces cases where the statute is constitutional (in the Stimson case, preserving the navigability of a river) but the particular application is claimed not to be. If the Larson opinion had stopped there, it would occasion no difficulty to Knight since his claim is of the latter sort. However, the Court immediately qualified its statement by saying in a footnote: 11 Of course, a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property. North Carolina v. Temple, 1890, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849 (1890). The Larson footnote has become the subject of microscopic scholarly scrutiny. Professor Jaffe has seized on the use of “may” rather than “must” and notes that the Temple case cited in the footnote was a suit to require the state to levy taxes to fund bonds, an action lying at the very core of the Eleventh Amendment prohibition. He points out also that, if taken literally, the language would overrule a long line of decisions providing mandamus to order the grant of a patent to lands of the United States. Judicial Control of Administrative Action 226-27 (1965); cf. West Coast Exploration Co. v. McKay, 93 U.S.App.D.C. 307, 213 F.2d 582, cert. denied, 347 U.S. 989, 74 S.Ct. 850, 98 L.Ed. 1123 (1954). Whatever the merits of this position and of the even broader assaults of Professor Davis, Administrative Law Treatise, 1970 Supp., ch. 27, the Court has not shown itself disposed to narrow Larson. In Malone v. Bowdoin, supra, it reaffirmed that opinion’s statement that United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882), had “continuing vitality only ‘where there is a claim that the holding constitutes an unconstitutional taking of property without just compensation,’ ” 369 U.S. at 648, 82 S.Ct. at 983-984, citing" }, { "docid": "15208005", "title": "", "text": "of sovereign immunity still obtains because the relief sought here falls within an exception carved out by the Supreme Court in footnote 11 of the Larson opinion. That footnote provides that sovereign immunity may preclude suit if the relief sought “will require affirmative action by the sovereign or the disposition of unquestionably sovereign property.” Larson v. Domestic & Foreign Corp., supra, 337 U.S. at 691 n. 11, 69 S.Ct. at 1462. This Circuit, however, has interpreted footnote 11 to mean that sovereign immunity will bar relief in cases only when “the relief sought would work an intolerable burden on governmental functions, outweighing any consideration of private harm.” Washington v. Udall, 417 F.2d 1310, 1318 (9th Cir. 1969). The record is clear that the relief sought by the plaintiffs in this case does not work an intolerable burden on governmental functions since, at most, the repayments would amount to $92,500.00. It is also equally clear that the plaintiffs will suffer considerable harm if the Secretary seeks to recoup payments which they received in good faith and without fault. While the Secretary cites Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), in support of his position, Edelman is distinguishable because it involved a suit against a state and the application of the Eleventh Amendment. Here, in a case involving a suit against the federal government, we have found that Regulation 619.13 is inconsistent with the purposes of the legislation and is outside the scope of the Secretary’s authority. In De Lao v. Califano, 560 F.2d 1384 (9th Cir., September 16, 1977), recently decided by this Circuit, the Court held that payment of retroactive benefits from the federal treasury would, in that case, “work an intolerable burden” on the government and, consequently, was barred by the doctrine of sovereign immunity. Since the funds involved in this case had been appropriated by Congress, and since there is no showing that an intolerable burden on governmental functions would result from returning the recouped payments, we hold that the doc trine of sovereign immunity does not operate as a bar. See" }, { "docid": "12588866", "title": "", "text": "F.2d 415, 419-420 (2d Cir.1971). The plaintiff in Knight owned a section of land appropriated by the State for the purpose of building a highway. Under the applicable statute, title to the land vested in the State immediately upon the State’s filing a description of the property with the clerk of the county in which the land was situated. A pre-appropriation hearing was neither required by the statute nor actually held, although plaintiff apparently had a post-appropriation remedy in state court under a different statute. Rather than invoking that remedy, plaintiff chose instead to sue the State in federal court, alleging a taking without due process, and seeking the affirmative relief of setting aside all or part of the appropriation. Judge Friendly’s opinion for the Second Circuit initially upheld dismissal of the action on Eleventh Amendment grounds. 443 F.2d at 419. Judge Friendly’s opinion reaches the sovereign immunity question only in considering whether leave should have been granted to amend the complaint so that the suit might proceed against the commissioner of transportation, thereby avoiding the Eleventh Amendment obstacle. That question the court answered in the negative, on the authority of the Larson footnote. Judge Friendly observed that “many regard” Larson as an “unfortunate opinion”; and that its footnote “has become the subject of microscopic scholarly scrutiny” and ever “broader assaults” of criticism. 443 F.2d at 420. Notwithstanding that criticism, the Knight opinion continues, the Supreme Court “has not shown itself disposed to narrow Larson.” Ibid. Judge Friendly then analyzes a number of subsequent Supreme Court cases, which in his view “may suggest that Larson’s footnote 11 was deemed controlling.” Id. at 421. It is then said in Knight: In any event, whether or not the Court could qualify note 11 without having to overrule any of these cases, the task of doing so, whether as regards suits against the United States or those encountering the bar of the Eleventh Amendment, is better left to the only body that can speak with authority. We find this course particularly attractive when, as has already been demonstrated and will further appear below," }, { "docid": "3910427", "title": "", "text": "if such a decree could no longer be made, then Larson would have worked a sharp and startling change .... There is nothing whatever in the opinion to indicate an intention to override such well-established doctrines, let alone any reason to do so.” Id. A number of courts agreed and interpreted the Larson footnote narrowly to preclude only those suits where the affirmative equitable relief sought would impose an “intolerable burden on governmental functions.” Clark v. United States, 691 F.2d 837, 840 (7th Cir.1982); Washington v. Udall, 417 F.2d 1310, 1317-18 (9th Cir.1969); Saine v. Hospital Auth., 502 F.2d 1033, 1037 (5th Cir.1974). This court, however, was not among them. In Knight v. New York, a case arising under the Eleventh Amendment, we stated that, absent further guidance by the Supreme Court, Larson precluded a federal court from ordering affirmative action by either the state or federal government employees in their official capacities. 443 F.2d at 420-21; cf. Berk v. Laird, 429 F.2d 302, 306 (2d Cir.1970) (holding that sovereign immunity was not a bar to plaintiff’s action against federal authorities charged with exceeding their authority because the relief requested did not require affirmative government action). As discussed, infra, however, subsequent guidance provided by the Supreme Court in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), indicates that no bar prevents a federal court from granting equitable relief in the form of an order directing government officials to reinstate either benefits or employment. . This court cited approvingly to Dwyer in Russell v. Dunston, a case in which we ruled \"that an order reinstating [state employee] Russell to medical leave for purposes of his applying for disability retirement is prospective relief permitted by the Eleventh Amendment.\" 896 F.2d 664, 665 (2d Cir.1990). In rejecting the defense argument that such an order might require payments from the state treasury, we noted that the type of reinstatement Dwyer found permissible would have \"directly entitled the plaintiff to a salary and thus had a far more certain and immediate effect on the state treasury than would result from" }, { "docid": "12588873", "title": "", "text": "sovereign immunity had been waived in the circumstances of the case. The Supreme Court granted certiorari in Hampton to consider the constitutionality of a United States Civil Service Commission regulation barring resident aliens from federal civil service employment. The Court concluded that the regulation was unconstitutional. Hampton, a 5-4 decision, nowhere discusses the question of sovereign immunity as a bar to suit for affirmative injunctive relief. The district court’s decision in Hampton indicates that plaintiffs sought no more than cessation of unconstitutional activity, specifically the enforcement of an allegedly unconstitutional policy. Mow Sun Wong v. Hampton, 333 F.Supp. 527, 529 (N.D.Cal.1971), rev’d, 500 F.2d 1031 (9th Cir.1974), aff'd, 426 U.S. 88, 96 S.Ct. 1895 (1975). Such relief fits comfortably within Larson. I conclude that the law of the Second Circuit is declared in Knight and Berk; and that the law of this circuit, in its interpretation of footnote 11 in Larson, applies the doctrine of sovereign immunity so as to foreclose affirmative injunctive relief in the case at bar. III. Tucker Act As an alternative to injunctive relief, plaintiffs have requested that the Court enter an order directing that the Perspectives grant request be approved. The government argues in its reply brief that because of this request for relief the action must be brought in the Claims Court since, under the Tucker Act, only that court has jurisdiction to hear actions against the United States for a money judgment in excess of $10,000. The jurisdiction of the district courts and the Claims Court over actions against the United States asking damages under $10,-000 is concurrent, but the Claims Court has exclusive jurisdiction over actions whose claims exceed that amount. 28 U.S.C. §§ 1346(a)(2), 1491. It has been held that actions which are in effect suits for a money judgment over $10,000 may not evade the Claims Court by being framed as suits for equitable relief. See, e.g., Clark v. United States, 596 F.2d 252, 253 (7th Cir.1979); Polos v. United States, 556 F.2d 903, 905 (8th Cir.1977). The government contends that “[n]o matter how [plaintiffs] may seek to characterize their" }, { "docid": "4205784", "title": "", "text": "party is irrelevant to the question of whether this action is one against the sovereign. Accordingly, the doctrine of sovereign immunity operates to deprive the court of jurisdiction unless (1) the defendants have acted beyond their statutory powers, (2) the powers exercised by the defendants (or the manner in which they were exercised) are constitutionally void, or (3) the government has consented to be sued. In the instant case, plaintiffs have clearly alleged ultra vires conduct on the part of federal officials. The substance of Count I of the complaint is that the action taken by the defendants was beyond their statutory authority, since termination of federal assistance is not authorized by 42 U.S.C. § 2000d-l unless the conditions precedent to such action have been satisfied. But the implications of Larson’s footnote 11, as construed by various Courts of Appeals, serve to confuse what might otherwise be a simple process of logical deduction. As previously indicated, footnote 11 advised that “a suit may' fail” even though federal officials have acted in an ultra vires manner, if the relief sought “will require affirmative action by the sovereign.” In reliance upon the language of footnote 11, some courts have held the doctrine applicable in any instance in which the relief sought contemplates affirmative action by the sovereign or the disposition of sovereign property. For example, in Knight v. State of New York, 443 F.2d 415 (2nd Cir. 1971), the court reasoned that footnote 11 “qualified” the exceptions set forth in the main body of the Larson Opinion, and held that where the relief sought would have required the disposition of sovereign property, the doctrine of sovereign immunity was applicable. Similarly, the Fifth Circuit has held, under like circumstances, that footnote 11 represents “a well recognized exception to the exception which applies to this case . . .”. Zapata v. Smith, 437 F.2d 1024, 1025 (5th Cir. 1971). The inclination to close the courthouse doors to litigants solely because affirmative action may be required on the part of the government, however, is not as “well recognized” as the Zapata decision implies. In Knox" } ]

[ { "docid": "13968713", "title": "", "text": "exaggerated. This court is not condoning the improper and prejudicial statement by the Government. Under the facts of the particular case, however, we do not believe that the improper comment infected the whole decision-making process of the jury so as to require a new trial. Government’s Argument on Defendant’s Insanity Defense Conflicting psychiatric testimony was submitted on the sole issue before the jury — whether defendant was sane at the time of the offense. Defendant asserts that the Government’s argument was improper in that it limited the jury’s ability to consider the question of defendant’s sanity. The common element in cases reversed because of improper Government argument relating to the defense of insanity is a prosecutor’s invitation to the jury to convict even though it might believe the defendant to be insane in order to keep the defendant off the streets and away from society. Evalt v. United States, 359 F.2d 534 (9th Cir. 1966); United States v. Birrell, 421 F.2d 665 (9th Cir. 1970); Bruce v. Estelle, 483 F.2d 1031 (5th Cir. 1973). That element is not present in the case at bar. On cross-examination Dr. Slutsky stated that defendant knew the purpose of his examination. (Tr. 181.) Based on this testimony, the Government twice argued that defendant understood that the psychiatric examination by Dr. Slutsky offered a potential way out through an insanity defense. The focus of the Government’s argument was a possible motivation for defendant to lie during his psychiatric examination. The single reference to defendant walking out of the courtroom did not have an effect which would convince the jury to convict to keep defendant off the streets but instead cast doubt on Dr. Slutsky’s findings of insanity. The Government was not calling upon the jury to convict regardless of whether defendant was sane or insane. In addition, the Government made reference only once during its closing argument to defendant walking out of the courtroom. The remark was made in passing and was not emphasized. In response to a question from the jury as to whether defendant would receive help if found guilty or not guilty" } ]

[ { "docid": "22748527", "title": "", "text": "the other hand, maintained that he was an innocent passenger.’ At the close of the evidence but before final argument, Gagliardi elected to plead guilty , to a charge of second-degree murder. The court advised the jury that Gagliardi had pleaded guilty and that respondent’s trial would continue. Respondent did not seek an instruction that the jury was to draw no inference from the plea, and no such instruction was given. Respondent’s claims of constitutional error focus on two remarks made by the prosecutor during the course of his rather lengthy closing argument to the jury. The first involved the expression of a personal opinion as to guilt, perhaps offered to rebut a somewhat personalized argument by respondent’s counsel. The majority of the Court of Appeals agreed with the Supreme Judicial Court of Massachusetts that this remark was improper, but declined to rest its holding of a violation of due process on that remark. It turned to a second remark that it deemed “more serious.” The prosecutor’s second challenged comment was directed at respondent’s motives in standing trial: “They [the respondent and his counsel] said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree- murder.” Respondent’s counsel objected immediately to the statement and later sought an instruction that the remark was improper and should be disregarded. The court then gave the following instruction: “Closing arguments are not evidence for your consideration. ... . “Now-in his. closing, the District Attorney, I noted, made a statement: T don’t know what they want you to do by way of a verdict. They said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree' murder.’ There is no evidence of that whatsoever, of course, you are instructed to disregard that statement made by the District Attorney. “Consider the case as though no such statement was made.” ' The majority of the Supreme Judicial Court of Massachusetts, though again not" }, { "docid": "22435649", "title": "", "text": "Grand Jury] all about it .... ” When Outley answered in the affirmative, the prosecutors remarked that “[a] lot of people have fallen for that con.” Fields argues that prosecutors may not engage in name-calling. However, “[t]he use of colorful pejoratives is not improper.” United States v. Shoff, 151 F.3d 889, 893 (8th Cir.1998); see United States v. Malatesta, 583 F.2d 748, 759 (5th Cir.1978) (“Unflattering characterizations of a defendant do not require a new trial when such descriptions are supported by the evidence.”). In this case, it appears that Fields deliberately tried to mislead the jury. In context, referring to Fields’s actions as a “con” was not out-of-bounds. See United States v. Windom, 510 F.2d 989, 994 (5th Cir.1975) (no mistrial was warranted where prosecutor called the defendant a “con artist”); United States v. Caballero, 277 F.3d 1235, 1249-50 (10th Cir.2002) (no prosecutorial misconduct where defense questioning invited prosecutors to elicit testimony characterizing him as a “con man”); Shoff 151 F.3d at 893 (no prosecutorial misconduct where prosecutor labeled the defendant a “con man” in opening statements). Thus, the prosecutor did not make an improper remark. iv. Improper Closing Argument Finally, Fields complains that the prosecutors made several improper remarks at closing argument. Since Fields did not object below to the remarks, we review for plain error. See United States v. Gallardo-Trapero, 185 F.3d 307, 321 (5th Cir.1999). Most significantly, the prosecutors called Fields a “psychopath.” Assuming arguendo that this remark was clearly or obviously improper, it did not affect Fields’s substantial rights. Undoubtedly, the “psychopath” remark had some risk of inflaming the jury. However, the district court instructed the jury that it must decide the case based on the evidence and that “statements ... or arguments made by the lawyers are not evidence” and are “not binding upon you.” Additionally, though Fields argues the murder case against him was not airtight, the Government produced strong evidence of Fields’s guilt. For example, four witnesses testified that Fields admitted murdering the victim. Those confessions were corroborated by physical evidence showing cause of death and the killer’s attempt to hide the" }, { "docid": "17394802", "title": "", "text": "trial time would have substantially increased. In fact, the record demonstrates that many facts stipulated to were testified to at trial by several of the codefendants. In denying defendant’s motion for a new trial, the court did not find the attorney’s conduct or trial strategy improper. Stipulations are of necessity often part of trial strategy. Frequently, the defense is well-advised not to have a multitude of witnesses testifying about each and every minute piece of evidence, thus emphasizing and amplifying to the jury the overwhelming evidence against the accused. Although the defense strategy did prove to be unsuccessful, from our perusal of the record we find nothing contained therein indicating that the defendant’s counsel failed to satisfy the required standard of professional competency in his representation of the defendant. “A defendant is entitled to a fair trial but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1958). D. CLOSING ARGUMENT The defendant claims that the prosecutor’s argument during rebuttal was prejudicial, in that the prosecutor implied that marijuana was being distributed to jurors’ families and friends and that references were made to charges of an alleged murder which had been stricken from the indictment. The standard used in this circuit to determine whether a prosecutor’s comments were so egregious as to require reversal was stated in United States ex rel. Clark v. Fike, 538 F.2d 750, 760 (7th Cir.1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781 (1977) (quoting United States ex rel. Kirk v. Petrelli, 331 F.Supp. 792, 795-96 (N.D.Ill.1971)). “The question to be decided is whether the ... statements were so inflammatory and prejudicial to the defendant petitioner as to deprive him of a fair trial and thus deprive him of his liberty without due process of law as proscribed by the Fourteenth Amendment. The standard for the court to apply in making a determination of whether the petitioner was afforded a fair trial is [by] jurispruden tial necessity a broad one.... [E]ach case must be decided on its unique facts.” “It is thus" }, { "docid": "17394803", "title": "", "text": "prosecutor implied that marijuana was being distributed to jurors’ families and friends and that references were made to charges of an alleged murder which had been stricken from the indictment. The standard used in this circuit to determine whether a prosecutor’s comments were so egregious as to require reversal was stated in United States ex rel. Clark v. Fike, 538 F.2d 750, 760 (7th Cir.1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781 (1977) (quoting United States ex rel. Kirk v. Petrelli, 331 F.Supp. 792, 795-96 (N.D.Ill.1971)). “The question to be decided is whether the ... statements were so inflammatory and prejudicial to the defendant petitioner as to deprive him of a fair trial and thus deprive him of his liberty without due process of law as proscribed by the Fourteenth Amendment. The standard for the court to apply in making a determination of whether the petitioner was afforded a fair trial is [by] jurispruden tial necessity a broad one.... [E]ach case must be decided on its unique facts.” “It is thus necessary to examine the allegedly prejudicial remarks of the prosecutor in the context of the trial as a whole.” United States ex rel. Garcia v. Lane, 698 F.2d 900, 902 (7th Cir.1983). During his closing argument the prosecutor made a reference to the “Company’s” bringing in “200,000 pounds of marijuana into our country for distribution to our children and friends.” Based upon our reading of the allegedly improper statement, it appears that the prosecutor was making a reference to the “Company’s” threat to our society as a whole (“families” and “friends” used as generalities) rather than to any individual’s particular family and friends. A prosecutor can impress upon the jury the seriousness of the charges and a comment on the gravity of the drug problem in this country is certainly not inappropriate. See Malley v. Manson, 547 F.2d 25, 28 (2d Cir.1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1335, 51 L.Ed.2d 598 (1977). Appellant also objects to the prosecutor’s comments about DEA agents who “risked their lives, went undercover, [and] gained the confidences of" }, { "docid": "13929412", "title": "", "text": "be drawn from the evidence presented.” Id. We do not find that these improper remarks were sufficiently prejudicial to warrant reversal of Rodriguez’s conviction. There is no fundamental miscarriage of justice in finding that Rodriguez defaulted on this issue when he failed to present it to the Illinois Supreme Court. 2. Constitutional Violation During rebuttal summation, the prosecutor stated: Let’s look at the third major premises [sic] put to you by the defense in then-case. They told you that the defendant was found not guilty of the past crime. That’s true. Now let’s assume for a second that he didn’t do that. This makes my case even more powerful. Let’s assume that he never sexually assaulted [A.S.]. Speeifically-well, I don’t believe that’s what happened, but let’s assume-if you want to look at my case in the worst light, let’s assume that he is right, that the defendant was unjustly accused. Again I deny that is true. Defense counsel objected to these comments. Where a prosecutor’s comments during closing argument have been objected to at trial, we must “determine whether those remarks were so prejudicial as to deprive the defendant of a fair trial.” United States v. Fakhoury, 819 F.2d 1415, 1422 (7th Cir.1987) (citation omitted). “To decide whether a prosecutor’s comments have deprived a defendant of a fair trial, we first look at the disputed remarks in isolation to determine if they are proper.” United States v. Brisk, 171 F.3d 514, 524 (7th Cir.1999) (citations omitted), cert. denied, — U.S. —, 120 S.Ct. 150, — L.Ed.2d — (1999). Although the prosecutor stated that Rodriguez had been acquitted of the charge and placed his comments in the context of a hypothetical, we believe that the prosecutor’s comments were inappropriate in asking the jury to assume that Rodriguez was guilty of a previous charge for which he had already been acquitted. The prosecutor improperly asked the jury to speculate outside the parameters of the law. If the remarks are found to be improper, we must consider the remarks in light of the entire record. Brisk, 171 F.3d at 524; see also United" }, { "docid": "22462311", "title": "", "text": "honesty, good morals, justice or ethics to be shocking to the moral sense of the community,” id. at cmt. g. Here, there is a serious risk that the jury decided to convict Talley simply because it believed he was a murderer, not because it weighed the evidence for proof of drug conspiracy and possession, the crimes actually charged. See United States v. Pirovolos, 844 F.2d 415, 426 (7th Cir.1988) (“Any implication that a criminal defendant is guilty of uncharged offenses unfairly encourages the jury to find the defendant guilty because of his or her bad character, rather than because the evidence warrants a guilty verdict.”). Second, the prosecutor’s unforeseen claim of murder was prejudicial because it came at a point when it could not be countered with a factual defense. Talley’s lawyer did all he could in the circumstances by arguing that Talley was not on trial for murder. But because of the last-minute nature of the charge, Talley’s lawyer was deprived of any chance to learn about and present what could have been the best defense: that someone else had been convicted for the murder. Finally, Talley was prejudiced by the murder remarks because he did not know that the testimony of Perkins and Debnam, the two witnesses who discussed his shot at the car, would be used to establish him as a murderer. Because the murder assertion came well after Perkins and Debnam were off the stand, Talley had no opportunity to cross-examine them about any murder claim. b. The second factor relevant to the prejudice determination is whether the remarks were isolated or extensive. The prosecutor’s argument that Talley was a murderer was not isolated; instead, it was prominent and thoroughly developed. In both his initial closing argument and in his rebuttal the prosecutor painted in detail a scene of Talley killing someone over a drug deal turned sour. The prosecutor began the murder argument with a reference to the trial testimony of Perkins and Debnam. He recounted for the jury Perkins and Debnam’s testimony about Talley firing at a car that was later found off the" }, { "docid": "1170940", "title": "", "text": "(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 Zyls tra, 713 F.2d at 1339); see also Peco, 784 F.2d at 805. After examining the trial record, including the closing statements and the jury instructions, we have determined that Mr. Shepard’s right to a fair trial has not been violated. We do not condone the statements of the prosecutor. We only conclude that, in the context of the trial as a whole, the statements were not “ ‘so inflammatory and prejudicial to the defendant ... as to deprive him of a fair trial.’ ” Zylstra, 713 F.2d at 1339 (quoting United States ex rel. Clark v. Fike, 538 F.2d 750, 760 (7th Cir. 1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781 (1977)). The prosecutor’s statements, while grossly improper, did not manipulate or misstate the evidence. Neither did the statements implicate any specific rights of Mr. Shepard. Moreover, the trial judge instructed the jury that the closing arguments of the defense counsel and the prosecutor were not to be considered as evidence of the petitioner’s guilt. The jurors were also instructed only to consider the evidence that had been introduced at trial. We have already noted that the weight of the evidence against Mr. Shepard was overwhelming. As this court stated in United States v. Mazzone, 782 F.2d 757, 764 (7th Cir.), cert. denied, — U.S. -, 107 S.Ct. 141, 93 L.Ed.2d 84 (1986): “The evidence against the appellants was overwhelming; it included substantial eyewitness evidence ... as well as physical evidence---- It is almost inconceivable that if the prosecutor had refrained from making the remarks that he did, the appellants would have been acquitted.” Mr. Shepard argues that, in evaluating" }, { "docid": "20162420", "title": "", "text": "here. This was a voluntary act on his part, not some involuntary act where he didn’t know what he was doing. Viewed in context, it is clear that the prosecutor was not arguing that Ellison was guilty because he was charged. Instead, he was trying to make the point that it was Ellison’s mental state that was at issue in the case, not Smith’s or King’s, because it was Ellison’s actions that, in the view of the prosecution, caused Quincy’s death. The prosecutor was telling the jury that it was to determine Ellison’s state of mind, his intent, while he was shaking Quincy. Unlike Ellison, neither Smith nor King had admitted to shaking the child, the undisputed cause of death, and thus neither had been charged with the crime. They were not accused of having taken the actions that caused Quincy’s death, and thus their intent was irrelevant. This was apparently why Ellison’s previous appellate counsel reported in his Anders brief to the Illinois Appellate Court that the prosecutor’s remarks were “fair comment on the evidence.” Because the prosecutor’s argument was unclear and arguably susceptible to the improper meaning Ellison has attached to it, the trial judge nevertheless sustained the objection Attorney Pantoga interposed. Thus, to the extent that the jurors may have understood the prosecutor’s remarks as implying that Ellison was guilty simply because he had been charged with a crime, the trial judge’s ruling on the objection alerted them that the statement should be ignored, just as any question to which an objection was sustained should be ignored. See U.S. ex rel. Clark v. Fike, 538 F.2d 750, 759 (7th Cir.1976) (“Although it is always improper for the prosecution to suggest that a defendant is guilty from the mere fact that he is being prosecuted, in this context with part of the comment stricken and the other part made in response to defense assertions, we cannot say that the comment deprived the petitioner of a fair trial.”). The jury was also instructed that the indictment charging the defendant with a crime was not evidence against the defendant and" }, { "docid": "5465750", "title": "", "text": "whether the petitioner was afforded a fair trial is [by] jurisprudential necessity a broad one.... [E]ach case must be decided on its unique facts.” United States v. Zylstra, 713 F.2d 1332 at 1339 (7th Cir.1983); United States ex rel. Clark v. Fike, 538 F.2d 750, 760 (7th Cir. 1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781 (1977). “It is thus necessary to examine the allegedly prejudicial remarks of the prosecutor in the context of the trial as a whole.” United States ex rel. Garcia v. Lane, 698 F.2d 900, 902 (7th Cir.1983). Placing the prosecutor’s remarks in their proper context, the record reveals that at that point in his closing and rebuttal arguments the prosecutor was impressing upon the jury the credibility of Anna Shelby. Her “story” had remained consistent throughout the trial. The prosecutor pointed out that Carter’s “story” about access to a car had changed and that Shelby was a more believable witness because her testimony was also supported by documents. The thrust of the prosecutor’s closing argument was that Anna Shelby was a more credible witness than the appellant. See, e.g., United States ex rel. Garcia v. Lane, 698 F.2d at 903. The prosecutor may in argument suggest reasonable inferences from the evidence previously admitted. United States v. McPartlin, 595 F.2d 1321, 1360 (7th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979). Though the Government never introduced a proof of title evidencing Carter’s car ownership, the prosecutor did ask Carter, “Beginning March of 1981, you had just purchased a new car in your name, hadn’t you, a 1979 Thunderbird?” This question, which was answered in the affirmative, reveals that the Government knew when the automobile was purchased and that it was a 1979 Thunderbird. With these facts before them, a jury could reasonably infer that the Government knew of Carter’s car ownership thus causing Carter to change her “story.” Though we may have tempered our remarks in closing argument so as to avoid even the suggestion of prejudice, the prosecutor’s comments, herein, fail to rise to the level" }, { "docid": "3038336", "title": "", "text": "was denied “due process of law and a fair trial” as a result of the prosecution’s allegedly inflammatory statements at closing argument. “As a general matter, improper comments during closing arguments rarely rise to the level of reversible error, and considerable discretion is entrusted to the district court to supervise the arguments of counsel.” United States v. Wilson, 985 F.2d 348, 353 (7th Cir.1993) (internal quotation omitted). A new trial is required only if the improper comments prejudiced the defendant’s right to a fair trial. See United States v. DePriest, 6 F.3d 1201, 1209-10 (7th Cir.1993); see also Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (“[I]t is not enough that the prosecutors’ remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors’ comments so infected the trial iuith unfairness as to make the resulting conviction a denial of due process.”) (citations and internal quotations omitted) (emphasis added). In determining whether statements by a prosecutor rise to the level of a constitutional infraction, we apply the standard endorsed by us in United States ex rel. Clark v. Fike, 538 F.2d 750, 760 (7th Cir.1976) (quoting United States ex rel. Kirk v. Petrelli, 331 F.Supp. 792, 795-96 (N.D.Ill.1971)): “The question to be decided is whether the ... statements were so inflammatory and prejudicial to the defendant petitioner as to deprive him of a fair trial and thus deprive him of his liberty without due process of law as proscribed by the Fourteenth Amendment.” United States ex rel. Garcia v. Lane, 698 F.2d 900, 902 (7th Cir.1983). In reviewing whether a prosecutor’s statements deprived a defendant of a fair trial, we examine five factors: 1.) the nature and seriousness of the misconduct; 2.) the extent to which the comments were invited by the defense; 3.) the extent to which any prejudice was ameliorated by the court’s instruction to the jury; 4.) the defense’s opportunity to counter any prejudice; and 5.) the weight of the evidence supporting the conviction. See United States v. Kelly, 991 F.2d 1308, 1315 (7th Cir.1993) (citation omitted). Initially," }, { "docid": "2965279", "title": "", "text": "in finding his prior escape conviction constituted a violent felony. II. DISCUSSION A. Prosecutorial Misconduct Levering argues he was denied a fair trial due to an improper remark made by the prosecutor during closing argument. The district court is afforded broad discretion in controlling closing arguments, and we overturn its decisions only when the district court clearly abuses that discretion. United States v. Cannon, 88 F.3d 1495, 1502 (8th Cir.1996). “ ‘To obtain a reversal for prosecutorial misconduct, the defendant must show that (1) the prosecutor’s remarks were improper, and (2) such remarks prejudiced the defendant’s rights in obtaining a fair trial.’ ” United States v. Ehrmann, 421 F.3d 774, 783 (8th Cir. 2005) (quoting United States v. King, 36 F.3d 728, 733 (8th Cir.1994)). In his rebuttal closing argument, the prosecutor said: So again it’s all before you, ladies and gentlemen, the evidence and the exhibits and the testimony. It establishes beyond a reasonable doubt that the defendant is guilty of the crimes charged. The defendant attempted to run away from these crimes at the scene on February 19th. I ask that you not let him run away again. The law protects the community but the community enforces the law. And if you represent the community here, you decide. Thank you. Defense counsel objected and moved to strike. The court overruled the objection. On appeal, Levering focuses on the last two sentences of the rebuttal closing argument and complains the prosecution im-permissibly implored the jury to act as the “conscience of the community.” We disagree. Those final remarks must be read in the context of the prosecutor’s entire rebuttal. The prosecutor first asked the jury to focus its attention on the testimonial evidence presented and how that evidence satisfied the government’s burden of proof. He then urged the jury to follow the court’s instructions and apply the evidence to the elements of the crimes charged. Finally, he admonished the jury to find the defendant guilty of those crimes. The remark, “the community enforces the law, you represent the community, you decide,” was not improper in this context. United States" }, { "docid": "13929411", "title": "", "text": "remarks about the police officers, “The government is free to draw any reasonable inference from the evidence adduced at trial and may also comment on the credibility of a witness, including the defendant.” Spivey, 859 F.2d at 466. While a prosecutor is not permitted to express or imply his personal opinion concerning a witness’s truthfulness, Robinson, 8 F.3d at 415 (citations omitted), the prosecutor’s remarks about the police officers did not constitute improper vouching but were within the bounds of acceptable argument. See id. When viewed against the record as a whole, and taken in context with his explanation of the officers’ background and their abilities in gathering evidence, the prosecutor’s comment directing the jury to “believe these [officers] that [the] crime happened,” does not rise to the necessary level of prejudice. While some of the other statements were undoubtedly inflammatory, ie., that Rodriguez was accused of the “unspeakable” and that his ex-wife believed he had done the “unspeakable,” these remarks were not opinions on the merits of the case, but were “reasonable inferences to be drawn from the evidence presented.” Id. We do not find that these improper remarks were sufficiently prejudicial to warrant reversal of Rodriguez’s conviction. There is no fundamental miscarriage of justice in finding that Rodriguez defaulted on this issue when he failed to present it to the Illinois Supreme Court. 2. Constitutional Violation During rebuttal summation, the prosecutor stated: Let’s look at the third major premises [sic] put to you by the defense in then-case. They told you that the defendant was found not guilty of the past crime. That’s true. Now let’s assume for a second that he didn’t do that. This makes my case even more powerful. Let’s assume that he never sexually assaulted [A.S.]. Speeifically-well, I don’t believe that’s what happened, but let’s assume-if you want to look at my case in the worst light, let’s assume that he is right, that the defendant was unjustly accused. Again I deny that is true. Defense counsel objected to these comments. Where a prosecutor’s comments during closing argument have been objected to at trial," }, { "docid": "22467450", "title": "", "text": "argument” in his closing argument. Thus, it is difficult to find merit in the defendants’ contention that the prosecutor’s remarks in rebuttal closing argument were inappropriate under the circumstances; they were responsive to Gallegos’ closing argument, and there were no objections to the prosecutor’s comment in the initial closing argument which Gallegos contends opened up the issue of intent to murder. We need not decide the propriety of the prosecutor’s comments, however, because even if we assume the prosecutor’s statements were inappropriate, the ultimate question is whether the statements amounted to harmful error. Murrah, 888 F.2d at 27. In light of the context of the arguments and the entirety of the trial, any prejudicial impact on the defendants was minimal. The prosecutor’s remarks in rebuttal closing arguments were only a small portion of the entire closing arguments and the prosecutor phrased her remarks in such a manner that they amounted to a suggested inference from the evidence rather than an argument outside the record. As soon as the remarks were made, the district court immediately instructed the jury to disregard the prosecutor’s statements, effectively eliminating any prejudicial effect the statements might have had on the defendants. See Cardenas, 778 F.2d at 1132. In addition, during the jury instructions following the closing arguments, the district court emphasized to the jury that statements of counsel were not evidence and the defendants were being tried only for the offenses charged. Furthermore, after reviewing the entirety of the evidence, consisting of witness’ testimony, fingerprint identifications, hotel and rental car records, telephone company records, recorded telephone conversations, photographs and other physical items of evidence, we find there was sufficient evidence to convict each defendant. The following evidence connected Rocha and Gallegos to the conspiracy: (1) Rocha joined Padilla and Baker as soon as Padilla arrived with Baker in Dallas, Texas; (2) Rocha rented the motel room where Baker was confined; (3) Baker observed a bulge inside Rocha’s waistband which Baker believed was a gun; (4) during Padilla’s absence for a couple of hours, Rocha was alone with Baker; (5) while with Rocha, Baker felt he" }, { "docid": "13112236", "title": "", "text": "only case from this circuit that the majority cites as support for its plain error standard, we reviewed the prosecutorial misconduct claim for plain error “[bjecause defense counsel did not specifically object to the prosecutor’s remarks about the reasonable person standard.” United States v. Gonzalez-Montoya, 161 F.3d 643, 650 (10th Cir.1998) (emphasis added). The lack of precedent from our circuit which directly supports the majority’s position is telling, particularly considering how frequently we review claims of prosecutorial misconduct. Application to Defendant’s trial Under the appropriate standard of review applicable to the issues raised, Defendant’s prosecutorial misconduct claim still fails. The two-step process for evaluating claims of prosecutorial misconduct requires us first to “examine whether the conduct was, in fact, improper.” Oberle, 136 F.3d at 1421. As Defendant argues, and the government does not seriously contest, the prosecutor’s appeal to the jury to assist in solving a pressing social problem by convicting Defendant was improper. See, e.g., United States v. Johnson, 968 F.2d 768, 769-70 (8th Cir.1992) (reversing the defendant’s conviction and holding that “the prosecutor’s remarks ... were unduly inflammatory and improper” where the prosecutor’s rebuttal closing argument included the following: “Your decision to uphold the law is very important to society. You’re the people that stand as a bulwark against the continuation of what Mr. Johnson is doing on the street, putting this poison on the street.”); United States v. Solivan, 937 F.2d 1146, 1148-55 (6th Cir.1991) (reversing the defendant’s conviction where, during closing argument, the prosecutor told the jury, “And I’m asking you to tell her and all of the other drug dealers like her that we don’t want that stuff in Northern Kentucky and that anybody who brings that stuff in Northern Kentucky....”); United States v. Monaghan, 741 F.2d 1434, 1442-43 (D.C.Cir. 1984) (holding that the prosecutor’s remarks, in his rebuttal closing argument, that the defendant was not an exemplary police officer and should be held to a higher standard of conduct as a police officer, were improper). Nevertheless, the prosecutor’s improper comment during opening argument does not warrant reversal. “A prosecutor’s improper statement to the jury" }, { "docid": "23070072", "title": "", "text": "now seeks, however, to diminish the impropriety of the remarks by claiming that “sexual orientation was relevant to the issues in the case because it was the problems arising from the relationship with Johnson that provided the motivation for the robbery and murders.” (Appellee’s Br. at 42.) I agree with the majority that the second set of comments is in no way responsive to petitioner’s claim that he “was suffering extreme mental and emotional disturbances with regard to his relationship with [Johnson] which affected his mental thought processes.” (II Original R. at 138.) I also agree with the majority that the argument was improper. My only disagreement is that I consider the error to be of a greater degree. Admittedly, this would be a different case if the prosecutor’s remarks had been limited to his first set of comments, in which he argued that “losing a lover does not put you in the emotional state where it would justify this.” (V Trial Tr. at 1283.) Those comments are responsive to petitioner’s mitigation evidence and not a direct invocation of anti-homosexual bias. 3. Were the prosecutor’s comments invited or responsive? No. “[T]he idea of ‘invited response’ is used not to excuse improper comments, but to determine their effect on the trial as a whole.” Darden, 477 U.S. at 182, 106 S.Ct. 2464. This factor highlights a critical point in this case. As in my earlier dissent, I reject the proposition that the subject remarks were harmless because the defendant brought up the fact of his homosexuality and gay relationship. Under “he brought it up” reasoning, a direct appeal to a jury that it consider a defendant’s race would be permissible if a defendant introduced evidence of his ethnicity — or that of a partner — or if it was otherwise apparent that a defendant belonged to a particular minority group; and an appeal to consider a defendant’s religion would be permissible if the defendant introduced relevant testimony about his religious persuasion — or that of a partner — or if it was otherwise apparent. To accept the “he brought it up”" }, { "docid": "18731693", "title": "", "text": "The prosecutor’s remarks, those we quoted above and a few more like them (but somewhat less objectionable), must be placed in the context of a 45-minute rebuttal, the rest of which was unobjectionable, following five hours of vigorous closing argument by the defendants’ counsel. It is almost inconceivable that if the prosecutor had refrained from making the remarks that he did, the appellants would have been acquitted. It is more likely that the judge’s admonitions reduced the stature of the assistant U.S. attorney in the jury’s eyes than that the remarks that were admonished swayed the jury. That does not excuse the government’s conduct, of course. It makes it, if anything, less excusable; in Talleyrand’s phrase, it was worse than a crime, it was a blunder. So while we reprimand the government for the prosecutor’s conduct and for its attempt to defend that conduct before us, we do not find reversible error: a conclusion reinforced by the very large number of cases that refuse to reverse convictions for prosecutorial excesses of the kind committed here. See, e.g., United States v. Howard, 774 F.2d 838, 847-49 (7th Cir. 1985) (prosecutor said, “My job is to bring out the truth,” etc.); United States v. West, 670 F.2d 675, 689 (7th Cir.1982) (“The government doesn’t need cases”); United States ex rel. Clark v. Fike, 538 F.2d 750, 758 (7th Cir.1976) (“I [the prosecutor] work for you as well as for the defendant”); United States v. Strmel, 744 F.2d 1086, 1089 (5th Cir.1984) (“thank God for Customs and the Drug Enforcement Administration____ Thank God for their diligence and their expertise”); United States v. Shackelford, 709 F.2d 911, 913 (5th Cir. 1983) (per curiam) (“You [the jury] were to be tricked [by defense counsel]”); United States v. Esposito, 523 F.2d 242, 251 (7th Cir.1975) (prosecutor described defendant as “the lowest form of life in the country”). The strongest case for the appellants, United States v. Garza, 608 F.2d 659 (5th Cir.1979), is distinguishable. The improper remarks were more egregious, and also more prejudicial since it was a close case. See id. at 661-62, 665-66. It" }, { "docid": "241414", "title": "", "text": "the facts of this case. Its admission thus did not violate Rule 404. Moreover, as with the evidence about Forester’s death, the probative value of this “lifestyle” evidence outweighed any risk of unfair prejudice. We conclude, therefore, that admitting this evidence was not an abuse of the district court’s discretion. C. Government’s Rebuttal Argument Hattaway, Stimac, and Curran next contend that the prosecutor’s rebuttal argument contained improper remarks that constitute reversible error. The test for determining if a prosecutor’s statements in closing argument require reversal of a conviction is whether the remarks were so prejudicial that the defendant was deprived of a fair trial. United States v. Zylstra, 713 F.2d 1332, 1339-40 (7th Cir.), cert. denied, — U.S. -, 104 S.Ct. 403, 78 L.Ed.2d 344 (1983); United States ex rel. Clark v. Fike, 538 F.2d 750, 760 (7th Cir. 1976), cert, denied, 429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781 (1977). The trial court ruled that none of the prosecutor’s remarks constituted reversible error, and our review of the record convinces us that the trial court’s ruling was correct. Hattaway argues that the prosecutor “ridiculed” ‘ the presumption of innocence by telling the jury “not to pay lip service to some slogan.” Tr. at 1853. When the prosecutor’s comment is examined in context, however, the slogan to which the prosecutor referred might have been certain obscure Latin phrases evoked by counsel for Stimac and Miller during their closing arguments, instead of the presumption of innocence. See tr. at 1852-53. The prosecutor’s comment was at most ambiguous; it certainly did not deprive Hattaway of a fair trial. Curran contends that the prosecutor improperly suggested that Curran stole the purse of a woman in Milwaukee, from which Curran obtained an I.D. card which he later gave to Darlene Callahan. The court overruled Curran’s objection to this argument. In light of the circumstantial evidence suggesting that Curran was involved in procuring the I.D. card, we find that the prosecutor’s remark was not improper. Furthermore, any prejudicial effect of this argument certainly was minimal, as an allegation of purse-stealing is far less serious" }, { "docid": "20162421", "title": "", "text": "evidence.” Because the prosecutor’s argument was unclear and arguably susceptible to the improper meaning Ellison has attached to it, the trial judge nevertheless sustained the objection Attorney Pantoga interposed. Thus, to the extent that the jurors may have understood the prosecutor’s remarks as implying that Ellison was guilty simply because he had been charged with a crime, the trial judge’s ruling on the objection alerted them that the statement should be ignored, just as any question to which an objection was sustained should be ignored. See U.S. ex rel. Clark v. Fike, 538 F.2d 750, 759 (7th Cir.1976) (“Although it is always improper for the prosecution to suggest that a defendant is guilty from the mere fact that he is being prosecuted, in this context with part of the comment stricken and the other part made in response to defense assertions, we cannot say that the comment deprived the petitioner of a fair trial.”). The jury was also instructed that the indictment charging the defendant with a crime was not evidence against the defendant and did not create any inference of guilt, that the defendant was presumed to be innocent of the charges against him, and that the opening statements and closing arguments of the attorneys were not evidence. These instructions would likewise have disabused the jury of any confusion the prosecutor’s comments may have caused. We also note that even though counsel had not asked for a curative instruction on the issue, the prosecutor in essence provided such an instruction himself. Immediately following the comments quoted above, the prosecutor continued: Yes, this defendant, like all defendants in all cases, is presumed to be innocent of the charge, and it’s our burden to prove him guilty. We have accepted that burden from the beginning of the ease because he is guilty. If you look at him, you think about that presumption of innocence he has. Just look at him and think about that presumption of innocence. And when you look at him, think about that presumption of innocence, also look at him and think about having a baby in his" }, { "docid": "5465749", "title": "", "text": "car and then look at her documents and realize I could impeach her on that, and come back and change her story. She didn’t lie about that either, did she?” Defense counsel failed or decided not to object to these remarks during trial or request any curative instructions. In the absence of any objection, our review of the closing argument is limited to determining whether or not the prosecutor’s remarks were so prejudicial as to amount to plain error. United States v. West, 670 F.2d at 688; United States v. Spain, 536 F.2d 170, 174 (7th Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 96, 50 L.Ed.2d 97 (1976). To determine whether the prosecutor’s comments were so egregious as to require reversal, we must ask whether the “statements were so inflammatory and prejudicial to the defendant petitioner as to deprive him of a fair trial and thus deprive him of his liberty without due process of law as proscribed by the Fourteenth' Amendment. The standard for the court to apply in making a determination of whether the petitioner was afforded a fair trial is [by] jurisprudential necessity a broad one.... [E]ach case must be decided on its unique facts.” United States v. Zylstra, 713 F.2d 1332 at 1339 (7th Cir.1983); United States ex rel. Clark v. Fike, 538 F.2d 750, 760 (7th Cir. 1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781 (1977). “It is thus necessary to examine the allegedly prejudicial remarks of the prosecutor in the context of the trial as a whole.” United States ex rel. Garcia v. Lane, 698 F.2d 900, 902 (7th Cir.1983). Placing the prosecutor’s remarks in their proper context, the record reveals that at that point in his closing and rebuttal arguments the prosecutor was impressing upon the jury the credibility of Anna Shelby. Her “story” had remained consistent throughout the trial. The prosecutor pointed out that Carter’s “story” about access to a car had changed and that Shelby was a more believable witness because her testimony was also supported by documents. The thrust of the prosecutor’s closing argument was" }, { "docid": "16961566", "title": "", "text": "have to tell the truth after you’ve entered into this agreement.’ ‘Oh, yes, yes.’ ” (Tr. v. 25 p. 8). During rebuttal, the prosecutor’s disputed remark was “the plea agreement from Tom Kaltenberg does not say you will get credit and good recommendations if you testify, just testify against other people involved, but only if you testify truthfully, and if you, in fact, testify untruthfully, even if it benefits the government in some way, the government won’t tolerate it.” (Tr. v. 23 p. 3). If the defense struck the first blow, and the prosecutor tries to right the scale with a reasonable remark, the statement will not warrant reversal. Young, 470 U.S. at 13, 105 S.Ct. at 1045. Here, defense counsel’s remarks come very close to inviting the prosecutor’s comments by insinuating that the wit ness was lying to receive the benefits of the plea agreement. Nonetheless, because the lawyer was tossing neither horseshoes nor hand grenades, very close does not count. The prosecutor’s remark was not invited. But the lack of invitation does not render the trial unfair. We have held that it is not improper for the government to point out that a plea agreement provides the defendant with a motive to testify truthfully. Spivey, 859 F.2d at 466. We believe the prosecutor’s statement here was little more than that. Moreover, the district court immediately instructed the jury that the prosecutor’s statement was improper, and that it was the jury, not the prosecutor, who decided the credibility of the witnesses. We rely on our belief that juries heed the instructions. United States v. Neely, 980 F.2d 1074, 1085 (7th Cir.1992). Although the defense did not have an opportunity to counter allegedly improper vouching through surrebuttal, the weight of the evidence was strongly against Severson. Many witnesses, both co-eonspir-ators and government agents, testified to Severson’s role in the conspiracy. Some of that testimony was supported by audio taped conversations. We believe that the prosecutor’s statement was harmless error beyond a reasonable doubt. Severson also complains that the prosecutor improperly inflamed the jury’s passion by asking for the preservation of" } ]

[ { "docid": "7888009", "title": "", "text": "the action was brought. The law is clear as stated in Morrison v. Jack Richards Aircraft Co., 328 F.Supp. 580, 582 (W.D.Okl. 1971) : It is undisputed that three of the six Defendants are citizens of Oklahoma, they appear to have been properly joined (no claim is made to the contrary), two of them have been served and one has entered his appearance. In these circumstances, the case is not removable on diversity grounds. 28 U.S.C. § 1441(b); Martin v. Snyder, 148 U.S. 663, 13 S.Ct. 706, 37 L.Ed. 602 (1893); Fine v. Phillip Morris, Inc., 239 F.Supp. 361 (S.D.N.Y.1964); 1 Barron & Holtzoff (Wright Ed.) § 103 and notes 31 and 31.2 thereunder. Dow and General Crude contend, however, that even if we find the attorney General should be aligned as a defendant, we should also find that he is a nominal party. In determining the question of removability, the citizenship and non-joinder of a party who is merely nominal or formal is disregarded. Only the citizenship and non-joinder of those who are real parties must be considered. Salem Trust Co. v. Manu. Finance Co., 264 U.S. 182, 44 S.Ct. 266, 68 L.Ed. 628 (1924); Hann v. City of Clinton, 131 F.2d 978 (10th Cir. 1942); Aberle Hosiery Co. v. American Arbitration Assn., 337 F.Supp. 90 (E.D.Pa. 1972) ; Stonybrook Tenants Assoc., Inc. v. Alpert et al., 194 F.Supp. 552 (D. Conn.1961); Helms v. Ehe, 279 F.Supp. 132 (S.D.Tex.1968); Leadman v. Fidelity & Casualty Company, 92 F.Supp. 782 (S.D.W.Va. 1950). Because the determination of whether a party is necessary or indispensable to a proceeding is dispositive of the existence of federal jurisdiction, the question of the status of a particular party must be decided by applying federal law. Kramer v. Caribbean Mills, Inc., 394 U.S. 823, 89 S.Ct. 1487, 23 L.Ed.2d 9 (1969). There is no question, however, that the Court may look for guidance to the nature of the officer’s function, which derives from state law, and the status which would be given that party in the state courts. Commonwealth v. Brown, 260 F.Supp. 323 (E.D.Pa.1966); Hann v." } ]

[ { "docid": "12557118", "title": "", "text": "properly served at the time the removal petition is filed; (2) when the non-joining defendant is merely a nominal or formal party; and (3) when the removed claim is separate and independent from other aspects of the lawsuit filed in state court as defined by 28 U.S.C. § 1441(c). See Northern Ill. Gas Co. v. Aireo Indus. Gases, 676 F.2d 270, 272 (7th Cir.1982); Nannuzzi v. King, 660 F.Supp. 1445 (S.D.N.Y. 1987); McKinney, 464 F.Supp. at 62. In the present case, IBS maintains that RH did not join the removal petition because RH falls within the second exception, i.e. that RH is only a nominal or formal party to the lawsuit. IBS argues that RH is a corporation without assets and is not presently engaged in any business enterprise. In support of its position that RH was not required to join the petition for removal, IBS cites a variety of cases in which defendants were not required to join a removal petition due to their status as purely nominal parties. See, e.g., Stonybrook Tenants Assn., Inc. v. Alpert, 194 F.Supp. 552 (D.Conn.1961). This Court’s task, therefore, is to analyze the relevant statutory provisions and case law on this issue in light of the known facts in the present case to determine whether or not RH is, indeed, a nominal party or is, instead, a real party in interest whose failure to join the petition for removal requires the Court to remand the case to the Circuit Court of Fluvanna County, Virginia. See Tri-Cities Newspapers, Inc. v. Tri-Cities P.P. & A. Local 349, 427 F.2d 325, 327 (5th Cir.1970) (discussing the trial court’s responsibility of conducting an ad hoc examination of each case to determine whether or not a party can accurately be described as a nominal or formal party). To begin with, the Court accepts IBS' representations that RH is no longer operating as a business and, for this reason, did not intend to respond to the complaint filed in this case. Putting these representations aside, however, it is still undisputed that RH remains a corporation properly licensed under the" }, { "docid": "23433536", "title": "", "text": "factual foundation; or (2) for interposing a paper for an improper purpose, such as harassment, unnecessary delay or needless increase in litigation costs. Fed.R.Civ.P. 11; Zaldivar at 831. Yagman sought removal pursuant to 28 U.S.C. § 1441(b), federal question jurisdiction removal, and 28 U.S.C. § 1443, civil rights cases removal. Yagman’s removal petition was frivolous, however, because he lacked a “good faith argument” for removal under both section 1441(b) and section 1443. Id. First, Yagman failed to join the defendant, the City of Stanton, in the petition for removal. All defendants must join in a removal petition with the exception of nominal parties. 28 U.S.C. § 1446(b); Chicago, R.I. & P.R. Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900); Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressman & Assistants’ Local 349, 427 F.2d 325, 326-27 (5th Cir.1970). A defendant is a nominal party where his role is limited to that of a stakeholder or depositary. Id. at 327. Yagman argued that the City was a nominal party because its liability was merely derivative and dependent on Sperl’s liability. This argument is plainly frivolous. As a municipality, the City could be held liable even if the good faith qualified immunity defense would shield Sperl from liability. Owen v. City of Independence, 445 U.S. 622, 657, 100 S.Ct. 1398, 1418-19, 63 L.Ed.2d 673 (1980); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681 (9th Cir.1984). The City could also be liable under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), even if Sperl were exonerated, as long as Sperl had, in fact, acted pursuant to municipal policy or regulation. Heller v. Bushey, 759 F.2d 1371, 1374-75 (9th Cir.1985). Thus, there is no legal basis for arguing that the City is a nominal party. Second, the court had rejected Yagman’s previous removal petition for failure to join all defendants. Here, Yagman argued that as nominal party the City need not be joined. As discussed above, however, this argument was frivolous. Thus, Yagman filed the second petition without" }, { "docid": "23477271", "title": "", "text": "matter jurisdiction in the district court, the removal petition was procedurally defective because the consent of all defendants was not obtained. Accordingly, the district court’s denial of the remand petition is REVERSED and the case is REMANDED to the district court with instructions to remand the cause to the state court. . American Nat. Red Cross v. S.G., — U.S.-, 112 S.Ct. 2465, 120 L.Ed.2d 201 (1992). . Because the Red Cross had alleged diversity as an alternate means of finding federal jurisdiction the petition for remand also contended that there was no diversity between the parties. The district court did not reach this issue, and we need not discuss it. .— U.S. at-, 112 S.Ct. at 2468. ., See id. at-and n. 16, 111 S.Ct. at 2476 and n. 16. The Court also made clear the fact that jurisdiction in the case was based on the specific statutory grant by Congress (and thus fell within the “arising under” jurisdiction of Article III) rather than being based on the \"arising under” jurisdiction of 28 U.S.C. § 1331. .Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen & Assistants Local 349, 427 F.2d 325 (5th Cir.1970) (citing Chicago, R.I. & P. Ry. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900)). . See, e.g., 1A Moore’s Federal Practice ¶0.168[3.-2-2] at 547-48 (1992). . Hill, 706 F.Supp. at 968. . 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900). . Id. at 251, 20 S.Ct. at 856. . Hess v. Great Atl. & Pac. Tea Co., 520 F.Supp. 373, 375 (N.D.Ill.1981). . 28 U.S.C. § 1442 (emphasis added). . Bradford v. Harding, 284 F.2d 307, 310 (2d Cir.1960). See also Allman v. Hanley, 302 F.2d 559, 562 (5th Cir.1962) (citing Bradford). . In re Franklin Nat. Bank Sec. Litig. v. Andersen, 532 F.2d 842, 846 (2d Cir.1976). See also Davis v. FSLIC, 879 F.2d 1288, 1289 (5th Cir.1989) (noting, but not deciding, that independent statutory basis for removal by FSLIC may mean that FSLIC does not have to obtain co-defendants’ consent to removal) and Arango v. Guzman Travel Advisors Corp.," }, { "docid": "712468", "title": "", "text": "385 F.Supp. at 948. See also Percell’s Inc. v. Central Telephone Co., 493 F.Supp. 156, 157 (D.Minn.1980); Friedrich v. Whittaker Corp., 467 F.Supp. 1012, 1014 (S.D.Tex.1979); Vendetti v. Schuster, 242 F.Supp. 746, 754 (W.D.Pa.1965); Seigler v. American Surety Company, 151 F.Supp. 556, 559 (N.D.Cal.1957). To hold otherwise would, it seems, run athwart the fundamental purposes underlying congressional fashioning of the thirty day limitation period. Thus, under the prevailing view, neither a stipulation of the parties nor an order of the state court may extend the time within which a removal petition may be docketed. See, e.g., Sunbeam Corp. v. Brazin, 138 F.Supp. 723, 725 (E.D.Ky.1956); Burns v. Standard Life Insurance Co. of Indiana, 135 F.Supp. 904, 906-07 (D.Del.1955). In addition, the federal district court does not have authority to elongate this time span pursuant to either Fed. R.Civ.P. 6(b), Hamilton v. Hayes Freight Lines, 102 F.Supp. 594, 597 (E.D.Ky.1952), or Fed.R.Civ.P. 6(e). E.g., Ross v. Barrett Centrifugals, 580 F.Supp. 1510, 1512 (D.Me.1984); Youngson v. Lusk, 96 F.Supp. 285, 289 (D.Neb.1951). As a corollary proposition, it is established beyond peradventure that, by virtue of a fair reading of 28 U.S.C. § 1446(a), all defendants who have been served and who .are eligible to join the removal petition must so join. Chicago, Rock Island and Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900); Tri-Cities Newspapers, Inc. v. TriCities Printing Pressmen and Assistants Local 349, 427 F.2d 325, 326-27 (5th Cir.1970); Bradford v. Harding, 284 F.2d 307, 309 (2nd Cir.1960); Friedrich, 467 F.Supp. at 1013. “In other words, unanimity among all defendants substantively entitled to remove is required for removal.” Id. There are three basic exceptions to this rule in a diversity case: (i) nominal or formal parties are not required to join in the removal petition, Albonetti v. GAF Corp.-Chemical Group, 520 F.Supp. 825, 827 (S.D.Tex.1981), (ii) defendants who have not yet been served with process at the time of the petition for removal are not required to conjoin, Pullman v. Jenkins, 305 U.S. 534, 540-41, 59 S.Ct. 347, 350, 85 L.Ed. 334" }, { "docid": "624194", "title": "", "text": "pleadings. 28 U.S.C. § 1446(b); Unicom Systems, Inc. v. Nat’l Louis Univ., 262 F.Supp.2d 638, 640 (E.D.Va.2003); see Chicago, R.I. & P.R. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900). This “rule of unanimity” requires that each defendant “register to the Court its official and unambiguous consent to a removal petition filed by a co-defendant.” Stonewall Jackson Mem’l Hosp. v. Am. United Life Ins. Co., 963 F.Supp. 553, 558 (N.D.W.Va.1997). One exception to the rule of unanimity is that the defendant seeking removal does not need the consent of a codefendant present in the case as “merely a nominal or formal party.” Bellone, 748 F.Supp. at 436-37. The party seeking removal has the burden of proving that the objecting party is merely nominal. See Blue Mako, Inc. v. Minidis, 472 F.Supp.2d 690, 696 (M.D.N.C.2007) (citing 14C Wright, Miller & Cooper, Federal Practice and Procedure § 3731, at 270-71 (3d ed.1998)). In this case, the Commonwealth does not consent to removal. Whether removal is proper, then, turns on whether the Commonwealth should be considered “merely a nominal or formal party,” or, instead, a real party in interest whose failure to join the petition for removal requires the Court to remand the case to the Virginia Circuit Court. Id. at 437. Plaintiff argues that the Commonwealth is more than a nominal party because it is subject to liability under the VTCA. The Commonwealth, while agreeing with the Individual Defendants that ultimately it should not be held liable in the case, asserts that it is more than a nominal party because the procedural posture of the case puts its sovereign immunity into issue. The Fourth Circuit has not defined “nominal party” for removal purposes. See Allen v. Monsanto Co., 396 F.Supp.2d 728, 732 (S.D.W.Va.2005). Other courts have employed a variety of definitions. The Fifth Circuit has identified a nominal party as one serving solely as a “depositary or stakeholder;” whether a defendant party is nominal, the court explained, depends on the facts of each case. Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen and Assistants’ Local 349, 427 F.2d" }, { "docid": "22844277", "title": "", "text": "was unnecessary to effect removal. The court’s opinion did not address NI-Gas’ arguments that the initial petition was fatally defective for failure to allege the reason for non-joinder and that the amended petition’s untimeliness precluded it from curing the defect. The court also denied NI-Gas’ motion for a permanent stay of arbitration and dismissed the cause, directing the parties to submit their dispute to arbitration. Removal Jurisdiction NI-Gas argues that the district court erred in denying its motion to remand. NI-Gas does not appeal from the ruling below that the AAA is a nominal party; instead it contends that the initial removal petition was defective for its failure to allege the nominal party status of the AAA and that the amended petition was untimely. As a general rule, all defendants must join in a removal petition in order to effect removal. Chicago, Rock Island, & Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900); P. P. Farmers Elevator Co. v. Farmers Elevator Mutual Insurance Co., 395 F.2d 546, 547 (7th Cir. 1968). Nominal parties, however, are disregarded for removal purposes and need not join in the petition. Ryan v. State Board of Elections of the State of Illinois, 661 F.2d 1130, 1134 (7th Cir. 1981); First National Bank of Chicago v. Mottola, 302 F.Supp. 785, 790-91 (N.D.II1.1969), aff’d sub nom., First National Bank of Chicago v. Ettilinger, 465 F.2d 343, 345 (7th Cir. 1972). See Salem Trust Co. v. Manufacturers Finance Co., 264 U.S. 182, 189, 44 S.Ct. 266, 267, 68 L.Ed. 628 (1924); The Removal Cases, 100 U.S. 457, 469, 25 L.Ed. 593 (1879). Because it is incumbent upon a party petitioning to remove a state court case to federal court to allege in the petition “a short and - plain statement of the facts which entitle” him to remove, 28 U.S.C. § 1446(a), a petition filed by less than all of the named defendants is considered defective if it fails to contain an explanation for the absence of co-defendants. Wright v. Missouri Pacific Railroad Co., 98 F.2d 34, 36 (8th" }, { "docid": "18317817", "title": "", "text": "of our jurisdiction is the Labor Management Act, 29 U.S.C. § 185, and there is no need for diversity of citizenship when the basis of jurisdiction is a federal question. Crawford v. East Asiatic Co., 156 F.Supp. 571 (N.D.Cal.1957). However, we agree with plaintiff that the Union was a party defendant at the time the removal petition was filed and its failure to join in the petition is fatal to removal. Section 1441(a) of 28 U.S.C. states that an action may be removed “by the defendant or the defendants.” This has generally been read to mean that where there are multiple defendants, all defendants must join in the removal petition. 1A Moore’s Federal Practice, ¶ 0.160 at p. 193, notes and cases cited therein (2nd ed. 1979). There appears to be a practical reason for the rule in diversity cases. It facilitates an early determination of whether there is in fact complete diversity of all defendants and, by requiring an affirmation of federal jurisdiction by all defendants, probably reduces the number of improvident removals. The rationale for requiring joinder of all defendants in a removal petition in federal question cases has rarely been discussed by the courts or the commentators. Chicago Rock Island & Pacific Ry. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900); Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen & Assistants, Local 349, 427 F.2d 325 (5th Cir. 1970); McKinney v. Rodney C. Hunt Co., 464 F.Supp. 59 (W.D.N.C.1978); Moore’s Federal Practice, supra, at ¶¶ 0.160, 0.168[3.—2], However, at least three arguments can be made for applying the rule to federal question cases. First, it eliminates the risk of inconsistent adjudications in state and federal court. The same thing could, of course, be accomplished by simply allowing the entire case to be removed upon the petition of any one defendant. However, this suggests the second argument for the requirement that all defendants join — the concern that one defendant not be permitted to impose his choice of forum upon other unwilling defendants and an unwilling plaintiff. Chicago, Rock Island & Pacific Ry. Co.," }, { "docid": "23094673", "title": "", "text": "action against the non-removing defendants in state court.” B., Inc., 663 F.2d at 549. Diversity/Federal Question, Same Rule Applies Because the basis for removal jurisdiction in this case was federal question jurisdiction, Farias contends the nominal parties exception is not applicable. The nominal party cases in our circuit have dealt solely with diversity jurisdiction. See, e.g., Robinson, 808 F.2d 1119 (5th Cir.1987); Green v. Amerada Hess Corp., 707 F.2d 201 (5th Cir.1983), cert. denied, 464 U.S. 1039, 104 S.Ct. 701, 79 L.Ed.2d 166 (1984); B., Inc., 663 F.2d 545 (5th Cir.1981); Tedder v. F.M.C. Corp., 590 F.2d 115 (5th Cir.1979); Tri-Cities Newspapers, Inc., 427 F.2d 325 (5th Cir.1970). Until now, the exception has not been applied to a case in which removal is based on federal question jurisdiction. The grandaddy case in our circuit dealing with nominal parties and removal is Tri-Cities Newspapers, Inc., 427 F.2d 325 (5th Cir.1970). Tri-Cities discusses nominal parties as being those parties who are neither necessary nor indispensable to join in the action. Id. at 327. The Tri-Cities test of whether defendants are nominal parties “is whether in the absence of the [defendant], the Court can enter a final judgment consistent with equity and good conscience which would not be in any way unfair or inequitable to the plaintiff.” Id. (quoting Stonybrook Tenants Assoc., Inc. v. Alpert, 194 F.Supp. 552, 559 (D.Conn.1961)). The test places no limitation on whether removal is based on diversity or federal question jurisdiction and neither do we . Since equity is the major concern in the nominal party inquiry, no limitation should be placed on the type of jurisdiction used to remove the action from state to federal court. Similarly, the test for determining a nominal party stated above applies equally whether diversity or federal question jurisdiction is the mode of removal. The bottom line concern in determining a nominal party is whether the plaintiff can establish a cause of action against the nonremoving defendant in state court. The bottom line concern answered In this case, for reasons to be explained, we find the plaintiff could in no way establish" }, { "docid": "10655971", "title": "", "text": "such a claim, the general rule is that all defendants except purely nominal defendants who have been served and who could join in the removal petition must join. Chicago, Rock Island and Pacific Railway Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900); TriCities Newspapers, Inc. v. Tri-Cities Printing Pressmen and Assistants’ Local 349, 427 F.2d 325 (5th Cir. 1970); P. P. Farmers’ Elevator Co. v. Farmers Elevator Mutual Insurance Co., 395 F.2d 546 (7th Cir. 1968); Bradley, supra; Coogan v. DeBoer Properties Corp., 354 F.Supp. 1058 (S.D.Tex.1973). Several courts have held’ that compliance with the 30-day time limitation for removal action is not a jurisdictional pre-requisite. Adams v. Western Steel Buildings, Inc., 296 F.Supp. 759 (D.Colo.1969); Meyers-Arnold Company v. Maryland Casualty Company, 248 F.Supp. 140 (D.S.C.1965). The fact that the filing of the removal petition within the limitation period is not a jurisdictional pre-requisite is not dispositive of the issue in the instant action. The determination that compliance with the time limits is not jurisdictional merely permits a federal court to hear the case when the plaintiff waives his right to have the action remanded to the state court. In this action, there has been no such waiver and the important issue is whether the Court must strictly enforce the statutory limits when presented with a motion to remand. Both the great weight of authority and the better reasoning support the proposition that the time limitation is mandatory and must be strictly applied and where a party fails to file a petition within the applicable time limits, he is precluded from doing so. Vendetti v. Schuster, 242 F.Supp. 746 (W.D.Pa.1965); Seigler v. American Surety Company, 151 F.Supp. 556 (N.D. Cal.1957); Sunbeam Corp. v. Brazin, 138 F.Supp. 723 (E.D.Ky.1956); Biscup v. People, 129 F.Supp. 765 (W.D.N.Y.1955). Thus, under the prevailing view, neither a stipulation of the parties nor an order of the state court may extend the time to file a removal petition. Sunbeam Corp., supra; Burns v. Standard Life Insurance Co. of Indiana, 135 F.Supp. 904 (D.Del.1956). In addition, the federal district court does not" }, { "docid": "10655970", "title": "", "text": "of the thirty-day period, but before the filing of a motion to remand, the consent of the co-defendant “relates back” to the filing of the removal petition. The right of removal and the procedure for removal are entirely statutory. 28 U.S.C. § 1441 et. seq. Moreover, the removal statutes must be strictly construed and a federal court may encroach upon a state court’s right to determine cases properly brought before the state court only with the express authority given by Congress. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Bradley v. Maryland Casualty Co., 382 F.2d 415 (8th Cir. 1967); Hoyt v. Sears, Roebuck & Co., 130 F.2d 636 (9th Cir. 1942); Resident Advisory Board v. Tate, 329 F.Supp. 427 (E.D.Pa.1971); Wood v. DeWeese, 305 F.Supp. 939 (W.D.Ky. 1969); Proteus Foods and Industries, Inc. v. Nippon Reizo Kabushiki, 279 F.Supp. 876 (S.D.N.Y.1967). There is no allegation that this suit contains separate and independent claims or causes of action pursuant to 28 U.S.C. § 1441(e). Absent such a claim, the general rule is that all defendants except purely nominal defendants who have been served and who could join in the removal petition must join. Chicago, Rock Island and Pacific Railway Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900); TriCities Newspapers, Inc. v. Tri-Cities Printing Pressmen and Assistants’ Local 349, 427 F.2d 325 (5th Cir. 1970); P. P. Farmers’ Elevator Co. v. Farmers Elevator Mutual Insurance Co., 395 F.2d 546 (7th Cir. 1968); Bradley, supra; Coogan v. DeBoer Properties Corp., 354 F.Supp. 1058 (S.D.Tex.1973). Several courts have held’ that compliance with the 30-day time limitation for removal action is not a jurisdictional pre-requisite. Adams v. Western Steel Buildings, Inc., 296 F.Supp. 759 (D.Colo.1969); Meyers-Arnold Company v. Maryland Casualty Company, 248 F.Supp. 140 (D.S.C.1965). The fact that the filing of the removal petition within the limitation period is not a jurisdictional pre-requisite is not dispositive of the issue in the instant action. The determination that compliance with the time limits is not jurisdictional merely permits a federal court" }, { "docid": "3277332", "title": "", "text": "to removal. Chicago, R. I. & P. Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900), Tri-Cities Newspaper, Inc. v. Tri-Cities Printing Pressman and Assistants Local 349, 427 F.2d 325, 327 (5th Cir. 1970), P. P. Farmers’ Elevator Co. v. Farmers Elevator Mutual Insurance Co., 395 F.2d 546, 548 (7th Cir. 1968), Bradley v. Maryland Casualty Co., 382 F.2d 415, 419 (8th Cir. 1967), Glenmede Trust Co. v. Dow Chemical Co., 384 F.Supp. 423, 429 (E.D.Pa.1974), Sun Oil Co. of Pennsylvania v. Pennsylvania Department of Labor & Industry, 365 F.Supp. at 1406, Resident Advisory Board v. Tate, 329 F.Supp. 427, 432 (E.D.Pa.1971). It follows that all defendants must join within the thirty-day period directed by § 1446(b). DiCesare-Engler Productions, Inc. v. Mainman Ltd., 421 F.Supp. 116, 119-20 (W.D.Pa.1976) (“[o]n petition to remove a case to federal court, the defendants are to be treated collectively, and ... all defendants who may properly join in the removal petition must do so”) (emphasis added), Sun Oil Co. of Pennsylvania v. Pennsylvania Department of Labor & Industry, supra (remanded where intervening defendants joined in removal more than thirty days after original defendants served), Crawford v. Fargo Manufacturing Co., 341 F.Supp. 762 (M.D. Fla.1972) (remanded where consent to removal was filed by co-defendant subsequent to expiration of time for filing), Norwich Realty Corp. v. United States Fire Insurance Co., 218 F.Supp. 484 (D.Conn.1963) (remanded where all defendants had not joined in removal petition within required time). To hold otherwise would elide this requirement from the statute altogether, for the purpose of § 1446(b) is “to provide a uniform and definite time for a defendant to remove an action”. Haun v. Retail Credit Co., 420 F.Supp. 859, 863 (W.D.Pa.1976) (emphasis added). See also Sun Oil of Pennsylvania v. Pennsylvania Department of Labor & Industry, 365 F.Supp. at 1407. Accordingly, plaintiff’s motion to remand will be granted. . The lease contract was arranged through defendant B & N Leasing Corporation (B & N), which later assigned it to defendant Network Leasing Company, Inc. (Network). . The parties agree that Park Ward" }, { "docid": "22855627", "title": "", "text": "was required to join in the petition for removal. If it was, then the cause must be remanded to the state court. If not, then the litigation on this cause is terminated. The law is clear that under 28 U.S.C. § 1446(a), removal procedure re quires that all defendants join in the removal petition. Chicago, R. I. & P. R. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900); P. P. Farmers’ Elevator Co. v. Farmers Elevator Mutual Ins. Co., 7 Cir., 1968, 395 F.2d 546. However, nominal or formal parties, being neither necessary nor indispensable, are not required to join in the petition for removal. Shattuck v. North British and Mercantile Ins. Co., 8 Cir., 1893, 58 F. 609; Stonybrook Tenants Association, Inc. v. Alpert, 194 F.Supp. 552 (D.Conn., 1961). The test of whether or not a named defendant is a nominal party is if “his role in the law suit is that of a depositary or stakeholder * * * ”. Colman v. Shimer, 163 F.Supp. 347, 350 (W.D.Mich., 1958). Another court has said that: “The ultimate test of whether the * * * defendants are * * * indispensable parties * * * is whether in the absence of the [defendant], the Court can enter a final judgment consistent with equity and good conscience which would not be in any way unfair or inequitable to plaintiff.” Stonybrook Tenants Association, Inc. v. Alpert, supra, 194 F.Supp. 559. An examination of the facts, though not fully developed in the District Court below, indicate that the case should be remanded to the District Court to more fully explore the facts here involved. The question of whether or not a named defendant is a nominal party depends on the facts in each case. See, e. g., Boeing Airplane Co. v. Aeronautical Industrial, 91 F.Supp. 596 (W.D.Wash., 1950). This is an action based on breach of contract, so that the issue of whether International was a party to the contract is important here. However, as the company points out in its brief, it is ineumbent on our courts" }, { "docid": "21226612", "title": "", "text": "and Civil Action No. 9313- and in the subject matter of said actions (Grant County Deposit Bank v. McCampbell, 194 F.2d 469, 473, 31 A.L.R.2d 909 (6 Cir. 1952) ); (2) that Frances T. Master-son is neither a necessary nor indispensable party to. Civil Action No. 9342, but is a nominal or formal party thereto (Shields v. Barrow, 58 U.S. (17 How.) 129, 139, 15 L.Ed. 158 (1854); Leadman v. Fidelity & Casualty Company of New York, 92 F.Supp. 782, 784 (S.D.W.Va.1950) ); (3) that this Court, in determining whether requisite diversity of citizenship exists, must look to the citizenship of the real parties in interest and must disregard the citizenship of nominal or formal parties having no real interest in the controversy (Iiann v. City of Clinton, 131 F.2d 978, 981 (10 Cir. 1942); 3 Moore’s Federal Practice, 1J17.04, pp. 1312, 1315 (2d ed. 1948)); (4) that the right of removal’ cannot be defeated by joining an unnecessary or dispensable party such as Frances T. Masterson (Salem Trust Company v. Manufacturers’ Finance Company, 264 U.S. 182, 189-190, 44 S.Ct. 266, 68 L.Ed. 628 (1924); Olsen v. Jacklowitz, 74 F.2d 718, 719 (2 Cir. 1935) ); (5) that, in the absence of Frances T. Masterson, the Court can enter a final judgment consistent with equity and good conscience which will not be in any way unfair or inequitable to the parties hereto (Shields v. Barrow, supra at 139; Stony-brook Tenants Association v. Alpert, 194 F.Supp. 552, 559 (D.Conn. 1961)); (6) requisite diversity jurisdiction here exists since Nellie Atherton on one side is of citizenship diverse to that of Arthur M. Masterson on the other side (Indianapolis v. Chase National Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 86 L.Ed. 47 (1941); Salem Trust Company v. Manufacturers’ Finance Company, supra at 189; Removal Cases, 100 U.S. 457, 468-470, 25 L.Ed. 593 (1879); Strawbridge v. Curtiss, 7 U.S. (3 Crunch) 267, 2 L.Ed. 435 (1806) ), the Court having arranged the parties with respect to the actual controversy and having looked beyond the formal arrangement made in the complaint (Helm v. Zarecor," }, { "docid": "22855626", "title": "", "text": "between the Tri-Cities Newspapers, Inc. * * * hereinafter called the Publisher, the party of the first part, and Tri-Cities Printing Pressmen Union No. 349, subordinate to the International Printing Pressmen and Assistants’ Union of North America, hereinafter called the Union, the party of the second part * * # The contract was signed by officials of the local union, and, on a separate line, by the president of the international. At the outset, it is not necessary for us to determine whether or not the District Court had original jurisdiction so as to permit this removal under 28 U.S.C. § 1441(a) and (b). Avco Corporation v. Aero Lodge et al., 390 U.S. 557, 559, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). Nor is it necessary for this Court to pass on the question of whether the District Court’s dissolution of the state court’s injunction was proper. Sinclair Refining Company v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962). The only question before this Court is whether or not the international union was required to join in the petition for removal. If it was, then the cause must be remanded to the state court. If not, then the litigation on this cause is terminated. The law is clear that under 28 U.S.C. § 1446(a), removal procedure re quires that all defendants join in the removal petition. Chicago, R. I. & P. R. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900); P. P. Farmers’ Elevator Co. v. Farmers Elevator Mutual Ins. Co., 7 Cir., 1968, 395 F.2d 546. However, nominal or formal parties, being neither necessary nor indispensable, are not required to join in the petition for removal. Shattuck v. North British and Mercantile Ins. Co., 8 Cir., 1893, 58 F. 609; Stonybrook Tenants Association, Inc. v. Alpert, 194 F.Supp. 552 (D.Conn., 1961). The test of whether or not a named defendant is a nominal party is if “his role in the law suit is that of a depositary or stakeholder * * * ”. Colman v. Shimer, 163 F.Supp. 347, 350 (W.D.Mich.," }, { "docid": "18317818", "title": "", "text": "rationale for requiring joinder of all defendants in a removal petition in federal question cases has rarely been discussed by the courts or the commentators. Chicago Rock Island & Pacific Ry. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900); Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen & Assistants, Local 349, 427 F.2d 325 (5th Cir. 1970); McKinney v. Rodney C. Hunt Co., 464 F.Supp. 59 (W.D.N.C.1978); Moore’s Federal Practice, supra, at ¶¶ 0.160, 0.168[3.—2], However, at least three arguments can be made for applying the rule to federal question cases. First, it eliminates the risk of inconsistent adjudications in state and federal court. The same thing could, of course, be accomplished by simply allowing the entire case to be removed upon the petition of any one defendant. However, this suggests the second argument for the requirement that all defendants join — the concern that one defendant not be permitted to impose his choice of forum upon other unwilling defendants and an unwilling plaintiff. Chicago, Rock Island & Pacific Ry. Co., 178 U.S. at 248, 20 S.Ct. at 855; Van Slambrouck v. Employers Mutual Liability Ins. Co. of Wisconsin, 354 F.Supp. 366, 368 (E.D.Mich.1973). Third, and perhaps most important, is the legislative and judicial policy that state courts are considered as competent as federal courts to hear federal questions that Congress has not committed to exclusively federal jurisdiction. Dowd Box Co. v. Courtney, 368 U.S. 502, 507-08, 82 S.Ct. 519, 522-23, 7 L.Ed.2d 483 (1962); Testa v. Katt, 330 U.S. 386, 390-91, 67 S.Ct. 810, 813, 91 L.Ed. 967 (1947). See also Hamilton, The Federalist, No. 82. The plaintiff’s choice of a state forum is to be given deference and jurisdictional questions on removal are strictly construed against federal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Greenshields v. Warren Petroleum Corp., 248 F.2d 61, 65 (10th Cir. 1957). See also Wright, Law of Federal Courts 154, 154 n. 52 (3d ed. 1976). The Labor Management Act does not provide for exclusive federal jurisdiction." }, { "docid": "712469", "title": "", "text": "is established beyond peradventure that, by virtue of a fair reading of 28 U.S.C. § 1446(a), all defendants who have been served and who .are eligible to join the removal petition must so join. Chicago, Rock Island and Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900); Tri-Cities Newspapers, Inc. v. TriCities Printing Pressmen and Assistants Local 349, 427 F.2d 325, 326-27 (5th Cir.1970); Bradford v. Harding, 284 F.2d 307, 309 (2nd Cir.1960); Friedrich, 467 F.Supp. at 1013. “In other words, unanimity among all defendants substantively entitled to remove is required for removal.” Id. There are three basic exceptions to this rule in a diversity case: (i) nominal or formal parties are not required to join in the removal petition, Albonetti v. GAF Corp.-Chemical Group, 520 F.Supp. 825, 827 (S.D.Tex.1981), (ii) defendants who have not yet been served with process at the time of the petition for removal are not required to conjoin, Pullman v. Jenkins, 305 U.S. 534, 540-41, 59 S.Ct. 347, 350, 85 L.Ed. 334 (1939), and (iii) distinct and independent claims or causes of action may be separately removable pursuant to 28 U.S.C. § 1441(c). Perrin, 385 F.Supp. at 947. The instant defendants have not urged the applicability of any of these exceptions to the case at bar. III. ISSUE PRESENTED Refined to their barest essence, the circumstances of this case reflect that the plaintiff sued out a removable complaint against Abbott; that Abbott forewent its right to transfer the case to a federal forum; that, when the other defendants were added, Merck and Merck alone filed a timely petition for removal; that the remaining defendants (including Abbott) joined in Merck’s petition after the motion to remand was filed (but before the expiration of thirty days from the date of service of the amended complaint); that none of the defendants is a nominal or formal party; and that the plaintiff’s claims against all of the defendants are so closely intertwined that the prophylaxis of 28 U.S.C. § 1446(c) is not available. The following questions emerge under § 1446(b): if" }, { "docid": "4026698", "title": "", "text": "relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. § 1446(a) has been interpreted to mean that all defendants in multi-defendant cases must join in the petition for removal or consent to such action within the 30 day time limitation applicable to removal procedures. On petition to remove a case to federal court, the defendants are to be treated collectively, and as a general rule, all defendants who may properly join in the removal petition must do so. Gableman v. Peoria, D. & E. R. Co., 179 U.S. 335, 21 S.Ct. 171, 45 L.Ed. 220 (1900); Chicago, R. I. & P. R. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900); Tri-Cities Newspapers, Inc. v. Tri-Cities Pressman & Assistants’ Local 349, 427 F.2d 325 (Fifth Cir. 1970); P. P. Farmers’ Elevator Co. v. Farmers Elevator Mutual Insurance Co., 395 F.2d 546 (Seventh Cir. 1968); Pettit v. Arkansas Louisiana Gas Co., 377 F.Supp. 108 (E.D.Okl.1974). There are exceptions to this requirement'. When a separate and independent claim that is removable under 28 U.S.C. § 1441(c) is joined with other nonremovable claims, only the defendant or defendants to the separate and independent claim need seek removal. See 14 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3731, at 719 (1976). Nominal or formal parties may be disregarded. TriCities Newspapers, Inc. v. Tri-Cities Pressman & Assistants’ Local 349, supra; see Reed v. Safeway Stores, Inc., 400 F.Supp. 702 (N.D.Okl.1975). An improperly joined party is not required to join in the removal petition. Williams v. Atlantic Coast Line Railroad Co., 294 F.Supp. 815 (S.D.Ga.1968); Derry v. Roadway Express, Inc., 248 F.Supp. 843 (E.D.Ky.l965); 14 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3723, at 610 (1976). A nonserved, nonresident defendant need not join in the removal petition. DiCesare-Engler Productions, Inc. v. Mainman Ltd., 421 F.Supp. 116 (W.D.Pa.1976). In the instant" }, { "docid": "16754252", "title": "", "text": "the Cincinnati Reds and Major League Baseball are properly joined as defendants and whose citizenship cannot be ignored under any applicable rule of law. Second, it is also a long-established doctrine that a federal court, in its determination of whether there is diversity of citizenship between the parties, must disregard nominal or formal parties to the action and determine jurisdiction based only upon the citizenship of the real parties to the controversy. Navarro Savings Ass’n v. Lee, 446 U.S. 458, 100 S.Ct. 1779, 64 L.Ed.2d 425 (1980). Early in its history, [the Supreme Court] established that the ‘citizens’ upon whose diversity a plaintiff grounds jurisdiction must be real and substantial parties to the controversy. McNutt v. Bland, 2 How. 9, 15 [11 L.Ed. 159] (1844); see Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 328-329 [14 L.Ed. 953] (1854); Coal Co. v. Blatchford, 11 Wall. 172, 177 [20 L.Ed. 179] (1871). Thus a federal court must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy. E.g., McNutt v. Bland, supra [2 How], at 14; see 6 C. Wright & A. Miller, Federal Practice & Procedure § 1556, pp. 710-711 (1971). Id. at 460-61, 100 S.Ct. at 1781-82; Salem Trust Co. v. Manufacturers’ Finance Co., 264 U.S. 182, 190, 44 S.Ct. 266, 267, 68 L.Ed. 628 (1924). A real party in interest defendant is one who, by the substantive law, has the duty sought to be enforced or enjoined. Sun Oil Co. of Pennsylvania v. Pennsylvania Dept. of Labor & Industry, 365 F.Supp. 1403, 1406 (E.D.Pa.1973). In contrast to a “real party in interest,” a formal or nominal party is one who, in a genuine legal sense, has no interest in the result of the suit, Grant County Deposit Bank v. McCampbell, 194 F.2d 469, 472 (6th Cir.1952); Bedell v. H.R.C. Ltd., 522 F.Supp. 732, 736 (E.D.Ky.1981), or no actual interest or control over the subject matter of the litigation. Stonybrook Tenants Ass’n, Inc. v. Alpert, 194 F.Supp. 552, 556 (D.Conn.1961). While these related governing principles of federal court jurisdiction" }, { "docid": "13633894", "title": "", "text": "L.Ed. 1055 (1900); Bradford v. Harding, 284 F.2d 307, 309 (2d Cir. 1960); Committee of Interns v. N.Y. Labor Rel. Bd., 420 F.Supp. 826, 832 (S.D.N.Y.1976). Assuming I would realign or disregard the New York defendants and thus dispense with the need for their joinder in the removal petition, see Committee of Interns, supra, 420 F.Supp. at 832-33; First Nat’l Bank v. Mottola, 302 F.Supp. 785 (D.I11.1969), the fact remains that Banco, properly joined and served as an intervenor defendant at the time of removal, also did not join in the petition. For this reason alone the removal was improvident. Committee of Interns, supra, 420 F.Supp. at 832-33. . The cases cited by Ospina and CEI do not compel a finding that Steinfeld and CCC are merely “nominal parties” for jurisdictional purposes. For example, in Salem Trust Co. v. Manufacturer's Finance Co., 264 U.S. 182, 44 S.Ct. 266, 68 L.Ed. 628 (1924), it was the depositary of the fund in suit, who had no interest in the outcome of the litigation, that was disregarded for the purpose of determining diversity. Here, neither Steinfeld nor CCC are “stakeholders” without any real interest in the suit. In Stonybrook Tenants Assn., Inc. v. Alpert, 194 F.Supp. 552 (D.Conn.1961), the corporate alter egos of the individual defendants, which had neither assets nor liabilities, had been liquidated prior to suit, and were in the process of formal dissolution, were disregarded as merely nominal. In this case, the argument is for piercing the corporate veil of CCC (which apparently retains formal corporate existence and continues to have corporate liabilities) to reach Steinfeld and then disregarding Steinfeld entirely for jurisdictional purposes. Finally, in the cited cases of Bradley v. Maryland Cas. Co., 382 F.2d 415 (8th Cir. 1967) and Wallis v. Southern Silo Co., Inc., 369 F.Supp. 92 (N.D. Miss.1973), the issue was whether certain defendants should be disregarded for the purpose of determining who should have joined in the removal petition. In the Bradley case, third party defendants, against whom plaintiff had raised no claim, who had removed the case prior to an earlier remand, and" }, { "docid": "23094672", "title": "", "text": "the nonremoving defendants in this case are more than “nominal” or “formal” parties. “[A]ll defendants who are properly joined and served must join in the removal petition, and ... failure to do so renders the petition defective.” Getty Oil Corp., Div. of Texaco, Inc. v. Insurance Co. of N. Am., 841 F.2d 1254, 1262 (5th Cir.1988) (citations omitted); see Johnson v. Helmerich & Payne, Inc., 892 F.2d 422, 423 (5th Cir.1990). There is an exception to this general rule, however. “Nominal” or “formal” parties need not join in the removal petition. See Robinson v. National Cash Register Co., 808 F.2d 1119, 1123 (5th Cir.1987); B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549-50 (5th Cir. Unit A Dec.1981); Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen and Assistants’ Local 349, Int’l Printing Pressmen and Assistants’ Union of N. Am., 427 F.2d 325, 327 (5th Cir.1970). To establish that non-removing parties are nominal parties, “the removing party must show ... that there is no possibility that the plaintiff would be able to establish a cause of action against the non-removing defendants in state court.” B., Inc., 663 F.2d at 549. Diversity/Federal Question, Same Rule Applies Because the basis for removal jurisdiction in this case was federal question jurisdiction, Farias contends the nominal parties exception is not applicable. The nominal party cases in our circuit have dealt solely with diversity jurisdiction. See, e.g., Robinson, 808 F.2d 1119 (5th Cir.1987); Green v. Amerada Hess Corp., 707 F.2d 201 (5th Cir.1983), cert. denied, 464 U.S. 1039, 104 S.Ct. 701, 79 L.Ed.2d 166 (1984); B., Inc., 663 F.2d 545 (5th Cir.1981); Tedder v. F.M.C. Corp., 590 F.2d 115 (5th Cir.1979); Tri-Cities Newspapers, Inc., 427 F.2d 325 (5th Cir.1970). Until now, the exception has not been applied to a case in which removal is based on federal question jurisdiction. The grandaddy case in our circuit dealing with nominal parties and removal is Tri-Cities Newspapers, Inc., 427 F.2d 325 (5th Cir.1970). Tri-Cities discusses nominal parties as being those parties who are neither necessary nor indispensable to join in the action. Id. at 327. The Tri-Cities test of" } ]

[ { "docid": "6795795", "title": "", "text": "process” would survive a constitutional attack). We need go no further. The challenged statute, 21 U.S.C. § 860(a), passes constitutional muster under the Commerce Clause. Hence, the defendants’ convictions and sentences must stand. Affirmed. STATUTORY APPENDIX The sentence-enhancing statute, 21 U.S.C. § 860(a), provides in relevant part (with certain exceptions not applicable here) that: Any person who violates section 841(a)(1) ... of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, is ... subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice.any term of supervised release authorized by section 841(b) of this title for a first offense. A fine up to twice that authorized by section 841(b) of this title may be imposed in addition to any term of imprisonment authorized by this subsection.... Section 860(a) cross-references 21 U.S.C. § 841(a)(1), which provides in relevant part: Except as [otherwise authorized by law], it shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.... Section 860(a) also cross-references 21 U.S.C. § 841(b)(1), which provides in relevant part: Except as otherwise provided in section 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows: (B) In the case of violation of subsection (a) of this section involving— * * # * * * (ii) 500 grams or more of a mixture or substance containing a detectable amount of— * * * * $ * (II) cocaine, its salts, optical and geometric isomers, and salts of isomers; * * if! # * * such person shall be sentenced" } ]

[ { "docid": "11113912", "title": "", "text": "an incorrect application qf the guidelines, (3) was outside the guideline range and is unreasonable, or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.’ ” United States v. Mathena, 23 F.3d 87, 89 (5th Cir.1994) (quoting United States v. Headrick, 963 F.2d 777, 779 (5th Cir.1992)). In this regard, the district court’s interpretation of a federal statute is subject to de novo review. Id. I. “Felony Drug Offense” Sandle first contends that the district court erred by denying his motion to set aside his sentence enhancement under 21 U.S.C. § 841(b)(1)(A). According to Sandle, because the applicable statute contains no express definition of “felony drug offense,” we should look to section 4B1.2(2) of the United States Sentencing Guidelines, which defines “controlled substance offense.” As “controlled substance offense” under section 4B1.2(2) requires an intent to manufacture, import, export, or distribute, United States v. Gaitan, 954 F.2d 1005, 1008 (5th Cir.1992), Sandle argues that enhancement under section 841(b)(1)(A) likewise should not be permitted when a prior “felony drug offense” is for “mere” possession. As Sandle’s argument is founded on an erroneous reading of the enhancement statute, we reject his argument and affirm the district court’s application of section 841(a)(1)(A)’s enhancement provision. Section 841(b)(1)(A), as currently written, provides in pertinent part: “(b) Except as otherwise provided in section 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows: (1)(A) In the case of a violation of subsection (a) of this section involving— * * * * * * (iii) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base; such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life.... If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment_” 21" }, { "docid": "15386139", "title": "", "text": "and convicted by a jury under 21 U.S.C. § 845a(a) (now 21 U.S.C. § 860), which does not require a specific quantity of drugs. The statutory maximum for an offense under Section 845a(a) is 480 months. See 21 U.S.C. § 860(a) (maximum punishment under Section 860(a), formerly Section 845a(a), is twice the punishment authorized by Section 841(b)); 21 U.S.C. § 841(b)(1)(C) (maximum punishment for offense under Section 841(a)(1) is 240 months). Because defendant’s term of imprisonment on Count 6 is less than the statutory maximum, it must stand under Apprendi. The Tenth Circuit recently explained: we find that the indictment was legally sufficient and that [defendant’s] sentence, because it falls within the minimum statutory range set forth in 21 U.S.C. § 841(b)(1)(C), is supported by the facts alleged and proven. In so doing, we join several of our sister circuits, which have made similar findings. For example, the Fifth Circuit has held that where a defendant is charged under 21 U.S.C. § 841(a), found guilty beyond a reasonable doubt, and sentenced within the minimum statutory range of 0-20 years, there is no Apprendi violation for a failure to charge and prove the amount of drugs involved. Further, the court held that, where a non-jury factual determination is used to enhance a sentence within the minimum statutory range, Apprendi is not violated. United States v. Meshack, 225 F.3d 556, 576 (5th Cir.2000); accord United States v. Hernandez Guardado, 228 F.3d 1017, 1027 (9th Cir.2000) (holding that a fact enhancing a defendant’s sentence within a minimum statutory range does not trigger Apprendi and need not be decided by a jury applying the reasonable doubt standard); United States v. Corrado, 227 F.3d 528, 542 (6th Cir.2000) (same); United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.2000) (holding that it is not a violation of Ap-prendi for a judge-found fact to alter a defendant’s sentence for violating 21 U.S.C. § 841(a) so long as that alteration remains within the minimum statutory range established by 21 U.S.C. § 841(b)(1)(C)). United States v. Thompson, 237 F.3d 1258, 1262 (10th Cir.2001); see United States v. Sullivan," }, { "docid": "13394323", "title": "", "text": "before the court nor necessary to the resolution of the issue before it. Contrary to the government’s assertions, therefore, this court has not held that § 860 is a sentence enhancer of § 841 rather than a substantive offense. Accordingly, we now address the issue. In determining whether a statute constitutes a sentence enhancer or a substantive offense, we look to the intent of Congress. See Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985). As always, we begin with the plain language of the statute. See United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). Section 860 provides, in relevant part: (a) Penalty Any person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, is (except as provided in subsection (b) of this section) subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. A fine up to twice that authorized by section 841(b) of this title may be imposed in addition to any term of imprisonment authorized by this subsection. Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year. The mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of marihuana. 21 U.S.C. § 860(a). In United States v. Davis, 801 F.2d 754, 756 (5th Cir.1986), this court identified" }, { "docid": "2592394", "title": "", "text": "and Anderson makes no complaint respecting any forfeiture order. Similarly, Anderson’s reliance on the terms of the plea agreement is misplaced; the plea agreement does not make any reference to the section 8553(f) “safety valve” provision (though it does refer to the distinctly different provision of section 8553(e)). In fact, count one of the indictment, the plea agreement, the sentencing hearing transcript, and the judgment of conviction (see note 4 supra and accompanying text) all explicitly refer to Anderson having violated section 860. We, therefore, conclude that Anderson was charged with, pleaded guilty to, and was convicted of violating section 860. As Anderson concedes, by its terms, the “safety valve” provision applies only to convictions under five specified offenses: 21 U.S.C § 841, § 844, § 846, § 960, and § 963. U.S.S.G. § 5C1.2. The selection of these five statutes reflects an intent to exclude others, including 21 U.S.C. § 860. See United States v. Koonce, 991 F.2d 693, 698 (11th Cir.1993) (recognizing the canon of statutory construction that the inclusion of one implies the exclusion of others: inclusio unius est exclusio aIterius). Accordingly, a defendant convicted and sentenced for violating section 860 is not eligible for the “safety valve.” See McQuilkin, 78 F.3d at 108. Anderson was convicted of and sentenced for violating section 860, and therefore was ineligible for the “safety valve” provision. Except for the district court’s refusal to apply the “safety valve” provision, Anderson presents no complaints regarding his conviction and sentence. Neither do we discern any error. Section 860(a) incorporates the mandatory minimum sentence penalties provided in section 841(b). See 21 U.S.C. § 860(a) (“Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year.”). Anderson was attributed with 5.72 grams of cocaine base, an amount under section 841(b)(1)(B) that requires “a term of imprisonment which may not be less than 5 years.” 21 U.S.C. § 841(b)(1)(B). Anderson’s sentence of sixty months’ imprisonment satisfies section 841(b)(l)(B)’s mandatory minimum requirement" }, { "docid": "16433614", "title": "", "text": "holding that the safety valve provision of 18 U.S.C. § 3553(f) does not apply to convictions under 21 U.S.C. § 860. See United States v. Anderson, 200 F.3d 1344, 1348 (11th Cir.2000); McQuilkin, 78 F.3d at 109. The decision of the district court is AFFIRMED. . Title 21 U.S.C. § 841(a)(1) provides in part: [I]t shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense ... a controlled substance!.] . A person violates 21 U.S.C. § 860(a) when that person “violates section 841(a)(1) ... by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or housing facility owned by a public housing authority- ...” .Title 18 U.S.C. § 3553(f) provides: Limitation on applicability of statutory minimums in certain cases. — Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the. court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that- [Listing five requirements.] . Although the heading for subsection 860(a) is \"Penalty/' the entire statute’s title is “Distribution or manufacturing in or near schools and colleges.” 21 U.S.C. § 860." }, { "docid": "2429995", "title": "", "text": "in question was not a separate offense statute but rather one that involved sentence enhancement), cert. denied, 495 U.S. 935, 110 S.Ct. 2181, 109 L.Ed.2d 509 (1990). It is clear that the drug trafficking offenses described in 21 U.S.C. § 841 are lesser included offenses of 21 U.S.C. § 860, for the only elements of the latter crime are (1) a violation of 21 U.S.C. § 841 and (2) within 1000 feet of a school. Moreover, from the plain language of the statute and uncontradicted by the legislative history, it does not appear that Congress intended separate punishments for violations of the two statutes. The “distribution near schools” provision specifically references 21 U.S.C. § 841, and sentences for violating 21 U.S.C. § 860 are calculated only by increasing the penalties for violations of 21 U.S.C. § 841 or § 856. Under these circumstances, the Court cannot allow to stand defendants’ convictions for the same conduct under both 21 U.S.C. § 841 and 21 U.S.C. § 860. Accordingly, the Court will vacate the unconstitutional convictions at the time of sentencing. IT IS SO ORDERED. . 21 U.S.C. § 860(a) provides: Any person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, ... is ... subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) may be imposed in addition to any term of imprisonment authorized by this subsection____ . Ball was authored by then-Chief Justice Burger, and Justice Stevens and Justice Marshall concurred in the judgment. . Although the government suggests that the convictions should be vacated “at sentencing,” Government’s Response, at 2, Ball advises that a Court should enter judgment on only one of the statutory offenses should the jury return guilty verdicts for each count. 470" }, { "docid": "6057653", "title": "", "text": "“incorporates the sentencing enhancement element into the underlying offense.” Id. (emphasis added). Thus the court’s analysis reveals some confusion as to whether § 860 required an additional element of proof or was simply an enhancement provision. Moreover, all other courts of appeals that have addressed the issue have held § 860 is not an enhancement provision. See e.g. United States v. Ashley, 26 F.3d 1008, 1011 (10th Cir.) (holding § 860 is not a sentencing enhancer) cert. denied, — U.S. -, 115 S.Ct. 348, 130 L.Ed.2d 303 (1994); see also United States v. Horsley, 56 F.3d 50, 51 (11th Cir.1995) (§ 841(a) is a lesser included offense of § 860); United States v. Parker, 30 F.3d 542, 553 (4th Cir.) (same), cert. denied, — U.S. -, 115 S.Ct. 605, 130 L.Ed.2d 515 (1994); United States v. Scott, 987 F.2d 261, 266 (5th Cir.1993) (same). We conclude § 860 is a separate offense and not a sentencing enhancement of § 841(a). Accordingly, § 3553(f) may not mitigate the mandatory minimum penalty under § 860. IV. For the foregoing reasons we will affirm the judgment of sentence. . Title 21 U.S.C. § 841 (“ordinary\" distribution) provides in part: (a) Unlawful acts Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense ... a controlled substance.... (b) Penalties Except as otherwise provided in section 849, 859, 860, or 861 of this tide, any person who violates subsection (a) of this section shall be sentenced as follows: \"(Í)---- (B) In the case of a violation of subsection (a) of this section involving — ■ (viii) 10 grams or more of methamphetamine ... or 100 grams or more of a mixture or substance containing a detectable amount of methamphetamine ...; such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years____ . Title 21 U.S.C. § 846 provides: Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as" }, { "docid": "21565780", "title": "", "text": "knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.... . 21 U.S.C. § 845a(a) (Supp.1989) reads: Distribution or manufacturing in or near schools and colleges (a) Penalty Any person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or within 100 feet of a playground, public or private youth center, public swimming pool, or video arcade facility, is (except as provided in subsection (b) of this section) punishable (1) by a term of imprisonment, or fine, or both up to twice that authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a term of imprisonment under this subsection shall be not less than one year. The mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of marihuana. .18 U.S.C. § 2 (1969) reads: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. NATHANIEL R. JONES, Circuit Judge, concurring in part and dissenting in part. I agree with the court’s holding that the second reason for upward departure — the threat of “crack” to society — is not a proper justification. However, I believe that the district court’s first reason for departure was also improper because the dismissed count of McDowell’s plea agreement did not constitute “relevant conduct” for the district court to consider in" }, { "docid": "6057645", "title": "", "text": "quantity was reasonably foreseeable and jointly undertaken by him. Based on the attributable amount of methamphetamine and taking into account his acceptance of responsibility, MeQuilkin’s sentencing guidelines range was 57 to 71 months imprisonment. The district court held that McQuilkin’s convictions under 21 U.S.C. §§ 841 and 846 met the criteria for the “safety valve” provision of 18 U.S.C. § 3553(f). But the court ruled that 21 U.S.C. § 860, the “schoolyard” statute, required a five year mandatory minimum term of imprisonment, and that 18 U.S.C. § 3553(f) did not apply to the mandatory minimum sentence under § 860. The district court sentenced McQuilkin to 60 months imprisonment to be served concurrently on all counts. In imposing sentence, the court stated that it intended to sentence McQuilkin to the lowest sentence allowed by law. McQuilkin has appealed contending the “safety valve” provision of 18 U.S.C. § 3553(f) permits a shorter sentence than the statutory minimum of 60 months. We exercise plenary review. See United States v. Sabarese, 71 F.3d 94, 95 n. 1 (3d Cir.1995), amended by, No. 95-5160 (3d Cir. Jan. 22, 1996). III. A. This is a matter of statutory interpretation. Title 21 U.S.C. § 860 (the schoolyard statute) provides in part: Any person who violates section 841(a)(1) ... of this title by distributing ... a eon-trolled substance in or on, or within one thousand feet of, the real property comprising a ... school ... is (except as provided in subsection (b) of this section) subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. A fine up to twice that authorized by section 841(b) of this title may be imposed in addition to any term of imprisonment authorized by this subsection. Except to the extent a greater minimum sentence is otherwise provided by section 8Ul(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year Because under the relevant facts" }, { "docid": "13394324", "title": "", "text": "a playground, or housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, is (except as provided in subsection (b) of this section) subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. A fine up to twice that authorized by section 841(b) of this title may be imposed in addition to any term of imprisonment authorized by this subsection. Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year. The mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of marihuana. 21 U.S.C. § 860(a). In United States v. Davis, 801 F.2d 754, 756 (5th Cir.1986), this court identified four factors to be used in determining whether Congress intended a statute to be a sentence enhancer or a substantive offense: “(1) whether the statute predicates punishment upon conviction under another section, (2) whether the statute multiplies the penalty received under another section, (3) whether the statute provides guidelines for the sentencing hearing, and (4) whether the statute is titled as a sentencing provision.” United States v. Vasquez-Olvera, 999 F.2d 943, 945 (5th Cir.1993) (citing Davis). Applying these factors to § 860, we conclude that § 860 is a substantive offense and not merely a sentence enhancer of § 841(a)(1). First, although § 860 incorporates the elements of § 841(a)(1) (“any person who violates § 841(a)(1) ... by distributing ...”), it requires that the government prove a separate and distinct element — i.e., distribution within 1000 feet of a protected location. See United States v. Smith, 13 F.3d 380, 382-83 (10th Cir.1993) (holding that “§ 860 constitutes an ‘offense’ which has as an element of proof that the distribution occurred within 1000 feet of a" }, { "docid": "23480728", "title": "", "text": "and 860. Hence the verdict in the present case was not ambiguous, for the jury could not have found that a defendant performed an act that was prohibited in § 841(a) but not in § 860. In sum, unlike in Ekinci, the guilty verdict did not leave open the' possibility that a defendant had engaged in conduct for which a § 860 sentence enhancement is not authorized. Nor was the sentence unauthorized simply because the defendants were not convicted of substantive offenses. The conspiracy section of Title 21 provides that [a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy. 21 U.S.C. § 846. Since count two of the superseding indictment alleged that the object of defendants’ conspiracy was distribution of, and possession with intent to distribute, narcotics within 1,000 feet of an elementary school in violation of § 860, the penalty for the conspiracy alleged in count two was the same as the penalty prescribed for a substantive violation of § 860. We see no error in the imposition of the § 860 penalties. C. The Apprendi Challenges and the Jury Interrogatories In sentencing defendants on counts one and two, the district court applied 21 U.S.C. § 841 (b)(l)(A)(iii), which provides, to the extent pertinent here, that a defendant convicted of distributing or possessing with intent to distribute 50 or more grams of crack cocaine “shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life,” 21 U.S.C. § 841(b)(1)(A)(iii); see 21 U.S.C. § 846 (penalties for § 846 conspiracy are the same as those prescribed for the substantive offense that was the object of the conspiracy). As indicated above, Alberto was sentenced to concurrent 180-month terms; Grimes was sentenced to concurrent 420-month terms; Bruce, Carf, and Johnson were sentenced to concurrent life terms. Defendants do not challenge the sufficiency of the evidence that the quantity of crack cocaine in which" }, { "docid": "5630445", "title": "", "text": "part and reversed in part. Appendix Relevant excerpts from the United States Code 21 U.S.C. §§ 841, 846, 860 (1994 & Supp. V1999). § 841. Prohibited acts A (a) Unlawful acts.... [I]t shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.... (b) Penalties.... [A]ny person who violates subsection (a) of this section shall be sentenced as follows: (1) (C) In the case of [heroin and certain other controlled substances, and] except as provided in subparagraphs (A), (B), and (D), such person shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not less than twenty years or more than life.... If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment.... § 846. Attempt and conspiracy Any person who attempts or conspires to commit any offense defined in this title shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy. § 860. Distribution in or near schools (a) Penalty. Any person who violates section 401(a)(1) [21 USCS § 841(a)(1) ] ... by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, is (except as provided in subsection (b)) subject to (1) twice" }, { "docid": "2592390", "title": "", "text": "contends that section 860 is not explicitly excluded from the list and that because count one includes an allegation of a violation of section 841 and the judgment of conviction refers to the “Title & Section” of the count one offense as “21 U.S.C. § 841(a)(1) & 860,” his conviction permits the application of the “safety valve” provision. Anderson asserts that he satisfied the five requirements of the “safety valve” provision and that the district court erred by failing to reduce his offense level by two points and by imposing a five-year mandatory minimum sentence. In response, the government argues that Anderson was charged with, pleaded guilty to, and was convicted of violating section 860 and that this conviction precludes the application of the “safety valve” provision to his sentence for violating section 860. We review the district court’s interpretation of the relevant sentencing statutes and Sentencing Guidelines de novo. See United States v. Saavedra, 148 F.3d 1311, 1313 (11th Cir. 1998). 21 U.S.C. § 841(a)(1) provides in pertinent part: “[I]t shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance....” Anderson was convicted of violating 21 U.S.C. § 860, the schoolyard statute, which provides, in pertinent part: “Any person who violates section 841(a)(1) or section 856 of this title by distributing ... a controlled substance in or on, or within one thousand feet of, the real property comprising a ... school ... is (except as provided in subsection (b) of this section) subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense.... Except to the extent a greater minimum, sentence is otherwise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year.... ” 21 U.S.C. § 860(a) (emphasis added). This Court has held that section 841(a)(1) is a lesser included offense" }, { "docid": "3667305", "title": "", "text": "did not err in sentencing Harris to 60 months’ imprisonment Harris finally argues that the district court violated his rights under the Fifth and Sixth Amendments by not requiring the indictment to allege, and the jury to find beyond a reasonable doubt, the precise quantity of marijuana that he possessed or conspired to distribute. Instead, the judge determined the amount at sentencing. Harris makes the same argument with respect to the enhancement of his base offense level for possessing a firearm, because the judge, not the jury, found the fact of Harris’s firearm possession. The Supreme Court has 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 v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). “But Apprendi is not triggered where the defendant receives a term of imprisonment within the statutory maximum that would have applied even without the enhancing factor (such as the drug amount).” Burns, 298 F.3d at 544 (internal quotation marks omitted). The first question, then, is whether a term of 60 months exceeds the statutory maximum for a marijuana-conspiracy conviction where the amount of the drug is undetermined. Harris argues that 21 U.S.C. § 841(b)(4) furnishes the applicable statutory maximum. That subsection provides that any person who violates the prohibition on possessing or distributing marijuana “by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of Title 18.” 21 U.S.C. § 841(b)(4). The maximum term of imprisonment under § 844 is one year. In contrast, the government contends that 21 U.S.C. § 841(b)(1)(D), which provides for a maximum sentence of five years “[i]n the case of less than 50 kilograms of marihuana,” is the statutory maximum. We believe that the government is correct. Because Apprendi is concerned with the facts that a jury must decide, “the proper ‘baseline’ or ‘default’ provision is not the provision with the lowest" }, { "docid": "16876610", "title": "", "text": "under 21 U.S.C. § 860 was a mandatory enhancement. That statute provides in relevant part that a person who violates § 841(a)(1) by possessing with intent to distribute a controlled substance within 1,000 feet of an elementary school is “subject to (1) twice the maximum punishment authorized by section 841(b) of this title for a first offense.” 21 U.S.C. § 860, however, is silent as to any minimum mandatory penalty with the exception of mandating a minimum sentence of one year imprisonment. For this reason, we remand Diaz-Gonzalez’ case to the district court for resentencing. We also remand Diaz-Gonzalez’ sentencing on double jeopardy grounds as hereinafter discussed. B. Double Jeopardy Diaz-Gonzalez contends that he received multiple punishments for the same conduct in violation of the Fifth Amendment’s double jeopardy clause. Specifically, Diaz-Gonzalez argues that his Count I conviction for possession with intent to distribute cocaine under 21 U.S.C. § 841(a) is a lesser included offense of his Count III conviction for possession with intent to distribute cocaine within 1,000 feet of an elementary school under 21 U.S.C. § 860. Citing Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the government maintains that if the legislature so intends, multiple punishment can be constitutionally imposed under two statutes proscribing the same offense. The Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) announced that for double jeopardy purposes, two crimes are to be treated as the same offense unless each crime requires proof of an additional element that the other does not require. Under this test, 21 U.S.C. § 841(a) and 21 U.S.C. § 860 constitute the same offense for double jeopardy purposes. As noted before, 21 U.S.C. § 860 states that a person who possesses with intent to distribute a controlled substance within 1,000 feet of a school is subject to: (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. A fine up" }, { "docid": "6057646", "title": "", "text": "amended by, No. 95-5160 (3d Cir. Jan. 22, 1996). III. A. This is a matter of statutory interpretation. Title 21 U.S.C. § 860 (the schoolyard statute) provides in part: Any person who violates section 841(a)(1) ... of this title by distributing ... a eon-trolled substance in or on, or within one thousand feet of, the real property comprising a ... school ... is (except as provided in subsection (b) of this section) subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. A fine up to twice that authorized by section 841(b) of this title may be imposed in addition to any term of imprisonment authorized by this subsection. Except to the extent a greater minimum sentence is otherwise provided by section 8Ul(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year Because under the relevant facts here, 21 U.S.C. § 841(b)(l)(B)(viii) mandates a five year minimum term of imprisonment, it supersedes the one year minimum term in § 860. The issue on appeal is whether 18 U.S.C. § 3553(f) may relieve a defendant from the mandatory minimum penalty for violating 21 U.S.C. § 860. Section 3553(f) provides: (f) Limitation on applicability of statutory mínimums in certain cases. — Notwithstanding any other provision of law, in the case of an offense under ... 21 U.S.C. §§ 841, 844, 846 ... 961, 963 the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission ... without regard to any statutory minimum sentence, if the court finds at sentencing [that the defendant satisfies certain criteria]. In the event of a violation under §§ 841, 844, 846, 961 and 963,18 U.S.C. § 3553(f) allows a sentencing court under specified conditions to disregard the statutory minimum and impose a sentence in accordance with the guidelines. By its terms, 18 U.S.C. § 3553(f) applies only to convictions under 21 U.S.C. §§ 841," }, { "docid": "16876609", "title": "", "text": "a doubling of the minimum mandatory ten-year sentence required by 21 U.S.C. § 841(b). Although the district court has discretion to double the maximum punishment of life imprisonment authorized by § 841(b), the government concedes that a mandatory doubling of the § 841(b) minimum sentence of ten years imprisonment is not ordained by § 860. The parties do not dispute that the district court properly determined Diaz-Gonzalez’ base offense level to be 37. Cross-referenced with a criminal history category of I, Diaz-Gonzalez’ presumptive guideline sentence range was 210 to 262 months imprisonment. The district court sentenced Diaz-Gonzalez to concurrent terms of 240 months imprisonment on Counts I, II, and III, to be followed by a concurrent term of five years supervised release on Counts I and II and a consecutive term of ten years supervised release on Count III. Diaz-Gonzalez’ 240 month sentence was imposed to comply with Guidelines § 5G1.1(c)(2) direction that it be “not less than any statutorily required minimum sentence.” The district court, however, incorrectly determined that enhancement of the minimum sentence under 21 U.S.C. § 860 was a mandatory enhancement. That statute provides in relevant part that a person who violates § 841(a)(1) by possessing with intent to distribute a controlled substance within 1,000 feet of an elementary school is “subject to (1) twice the maximum punishment authorized by section 841(b) of this title for a first offense.” 21 U.S.C. § 860, however, is silent as to any minimum mandatory penalty with the exception of mandating a minimum sentence of one year imprisonment. For this reason, we remand Diaz-Gonzalez’ case to the district court for resentencing. We also remand Diaz-Gonzalez’ sentencing on double jeopardy grounds as hereinafter discussed. B. Double Jeopardy Diaz-Gonzalez contends that he received multiple punishments for the same conduct in violation of the Fifth Amendment’s double jeopardy clause. Specifically, Diaz-Gonzalez argues that his Count I conviction for possession with intent to distribute cocaine under 21 U.S.C. § 841(a) is a lesser included offense of his Count III conviction for possession with intent to distribute cocaine within 1,000 feet of an elementary school under" }, { "docid": "2592391", "title": "", "text": "any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance....” Anderson was convicted of violating 21 U.S.C. § 860, the schoolyard statute, which provides, in pertinent part: “Any person who violates section 841(a)(1) or section 856 of this title by distributing ... a controlled substance in or on, or within one thousand feet of, the real property comprising a ... school ... is (except as provided in subsection (b) of this section) subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense.... Except to the extent a greater minimum, sentence is otherwise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year.... ” 21 U.S.C. § 860(a) (emphasis added). This Court has held that section 841(a)(1) is a lesser included offense of section 860. See United States v. FreyreLazaro, 3 F.3d 1496, 1507 (11th Cir.1993). We have also held that section 860 “is a substantive criminal statute, not a mere sentence enhancer for section 841(a),” Saavedra, 148 F.3d at 1316, that the applicable guideline for section 860 is section 2D1.2, and that “ § 2D1.2 is a substantive offense guideline section applicable to criminal violations of 21 U.S.C. § 860, rather than a mere sentence enhancer for certain classes of drug offenses under section 841(a).” Id. Section 2D1.1, the guideline applicable to section 841(a) violations, provides that when the offense level is 26 or above and the defendant meets the five safety valve criteria of section 5C1.2(l)-(5), the offense level is to be decreased by two levels. Section 2D1.2, the guideline applicable to section 860 offenses, has no comparable provision. We, however, have not expressly addressed the issue presented in this appeal: whether a defendant convicted of an offense under section 860 (which necessarily includes a violation of either section 841(a) or section 856) is eligible" }, { "docid": "15333535", "title": "", "text": "individuals who violate 21 U.S.C. § 841(a). 21 U.S.C. § 841(b)(1)(D) defines the sentence for cases dealing with “less than 50 kilograms of marihuana,” and includes the sentence applicable to an individual with a prior felony drug conviction. 21 U.S.C. § 841(b)(1)(D). On the other hand, 21 U.S.C. § 841(b)(4) states that “[njotwith-standing paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of Title 18.” 21 U.S.C. § 841(b)(4). Section 844 of Title 21 addresses offenses involving simple possession, and provides for a maximum sentence of imprisonment of one year. 21 U.S.C. § 844. Green was convicted under counts 1 and 2 of the indictment. Count 1 charged the defendants with conspiracy to “possess with intent to distribute and to distribute a Schedule I controlled substance, to wit; marijuana, in violation of the laws of the United States, 21 U.S.C. § 841(a)(1) and (b)(1)(B) ... [a]ll in violation of 21 U.S.C. § 846.” Count 2 charged that defendant Green “did knowingly and intentionally, unlawfully attempt to possess with intent to distribute a Schedule I Controlled Substance: to wit, marijuana. In violation of 21 U.S.C. § 846.” Campbell was convicted under counts 1 and 5 of the indictment. Count 1 is set forth above; Count 5 charged that defendant Campbell “did knowingly, intentionally, unlawfully possess with intent to distribute marijuana, a Schedule I Controlled Substance. In violation of 21 U.S.C. § 841(a)(1).” Appellants contend that 21 U.S.C. § 841(b)(4) is the least stringent statutory maximum, and cite to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), for the proposition that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi 530 U.S. at 490, 120 S.Ct. 2348. Appellants also cite to United States v. Page, 232 F.3d 536, 543-44 (6th Cir.2000)," }, { "docid": "21565779", "title": "", "text": "commission of the offense. We conclude with one last quote, which is relevant to the district court’s departure: When, as here, a district court departs from the guidelines in reliance on factors adequately evaluated in the formulation of the guidelines, its “ruling indicates dissatisfaction with the guidelines rather than a reasoned judgment that particular characteristics of the offense ... have not been accounted for.” United States v. Nuno-Para, 877 F.2d 1409, 1414 (9th Cir.1989). Judicial dissatisfaction alone, no matter how steeped in real-world wisdom, cannot be enough to trigger departures, lest the entire system crumble.... Aguilar-Pena, 887 F.2d at 353. This case is REMANDED for resentenc-ing consistent with this opinion. . 21 U.S.C. § 846 reads: \"Any person, who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” . 21 U.S.C. § 841(a)(1) reads: (a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.... . 21 U.S.C. § 845a(a) (Supp.1989) reads: Distribution or manufacturing in or near schools and colleges (a) Penalty Any person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or within 100 feet of a playground, public or private youth center, public swimming pool, or video arcade facility, is (except as provided in subsection (b) of this section) punishable (1) by a term of imprisonment, or fine, or both up to twice that authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. Except to the extent a greater minimum sentence" } ]

[ { "docid": "10241004", "title": "", "text": "law. See In re Williams, 11 B.R. 504 (Bkrtcy.S.D.Tx.1981) and General Motors Acceptance Corp. v. Uresti, 553 S.W.2d 660 (Tex.Civ.App.—Tyler 1977, writ ref’d n. r. e.) In the McIntyre case acceleration occurred when the payee exercised his option under the contract and gave written notice of that fact to the debtor. In addition the payee had commenced a non-judicial foreclosure. In Hardin the payee obtained a state court money judgment for the entire matured obligation and an order directing the sheriff to conduct a foreclosure sale of the security. The sheriff had not completed this foreclosure sale when Hardin filed his Chapter 13 petition. In McIntyre the real property securing the indebtedness is the debtor’s homestead; in Hardin it is not. The relevant portions of the Code are contained in 11 U.S.C. § 1322(b) which sets out what may be contained in a Chapter 13 plan. They provide: (b) ... the plan may . . . (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; ... (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; ... The bankruptcy courts throughout the country are in substantial disagreement over the interpretation to be given this statute. As noted in In re Pearson, 10 B.R. 189, 7 B.C.D. 567 (Bkrtcy.E.D.N.Y.1981), there appears to be unanimity that the right to cure exists until there has been an acceleration of the indebtedness and that it ceases once the property has been sold at foreclosure. Beyond that the cases may be divided into three general groups; (1) those which deny the right to cure an acceleration. See In re La Paglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981) (contractual" } ]

[ { "docid": "8390313", "title": "", "text": "Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 2312, 76 L.Ed.2d 515 (1983). Property of the estate inter alia includes property in which a creditor has a secured interest. Id. 103 S.Ct. at 2313. “Although Congress might have safeguarded the interests of secured creditors outright by excluding from the estate any property subject to a secured interest, it chose instead to include such property in the estate and to provide secured creditors with ‘adequate protection’ for their interests.” Id. Moreover, the Supreme Court has determined that property of the estate includes property in which the debtor had ho possessory rights at the time the bankruptcy petition was filed. Id. at 2313-14 (citing 11 U.S.C. § 542(a)). Thus, “the reorganization estate includes property of the debtor that has been seized by a creditor prior to the filing of a petition for reorganization.” Id. at 2315. The creditor remains entitled to adequate protection for its interests and to certain other rights enjoyed by secured creditors. While the opinion said that such a creditor must seek the protection of its interest “according to the congressionally established bankruptcy procedures, rather than by withholding the seized property from the debtor’s efforts to reorganize,” (id. at 2317), Whiting Pools also stated that property seized pre-petition was property of the bankruptcy estate and could be subject to turnover (while not specifying whether this principle would apply in a Chapter 13 case). Id. at 2315 n. 17. Still, most bankruptcy and district court opinions have decided that a Chapter 13 debtor retains sufficient interest in a vehicle that was repossessed prebankruptcy to maintain an action or motion for turnover. See Spears v. Ford Motor Credit Co., 223 B.R. 159, 163 (Bankr.N.D.Ill.1998) (collecting cases); „ see also In re Pluto, 200 B.R. 740, 742 (Bankr.D.Mass.1996) (finding car remained property of estate because debtor still had right to redeem); In re Brooks, 207 B.R. 738, 741 (Bankr.N.D.Fla.1997) (finding creditor had obligation to return car upon learning of bankruptcy); In re Massey, 210 B.R. 693, 696 (Bankr.D.Md.1997) (finding creditor could keep car only until debtor provided adequate protection); In re Attinello," }, { "docid": "1077969", "title": "", "text": "982-83 (Bankr.E.D.Pa.1991); and In re Ford, 78 B.R. 729, 736 (Bankr.E.D.Pa.1987). Cf. Juras v. Aman Collection Service, Inc., 829 F.2d 739, 742-43 (9th Cir.1987), cert. denied, 488 U.S. 875, 109 S.Ct. 192, 102 L.Ed.2d 162 (1988) (a college is the owner of its transcripts, subject to the debtor’s right of access to it). Moreover, in a situation where a debtor seeks the return of property of the estate which a creditor retains on the basis of a pre-petition security interest or other special interest, the debtor is normally obliged to provide adequate protection to the creditor as a condition for the return of that property. See United States v. Whiting Pools, Inc., 462 U.S. 198, 204-05, 103 S.Ct. 2309, 2313-14, 76 L.Ed.2d 515 (1983); Shapiro, supra, 124 B.R. at 982-83; and Ford, supra, 78 B.R. at 734-37. Thus, in most jurisdictions, in situations where the debtor seeks the turnover of a motor vehicle that a secured creditor has repossessed but not yet resold prior to a bankruptcy filing, the result has been that the debtor must both provide adequate protection to the creditor and seek affirmative relief to obtain a turnover. See In re Richardson, 135 B.R. 256, 258-60 (Bankr.E.D.Tex.1992); In re Koresko, 91 B.R. 689, 695 (Bankr.E.D.Pa.1988); In re Loof 41 B.R. 855, 856 (Bankr.E.D.Pa.1984) (GOLDHABER, Ch. J.); In re Attinello, 38 B.R. 609, 610-12 (Bankr.E.D.Pa.1984) (TWARDOWSKI, present Ch.J.); and In re English, 20 B.R. 877, 879 (Bankr.E.D.P.1982) (KING, J.). We acknowledge the presence of a few decisions which hold that even a secured creditor’s post-petition continued retention of a motor vehicle repossessed pre-petition is a violation of 11 U.S.C. § 362(a). See In re Knaus, 889 F.2d 773, 774-75 (8th Cir.1989); and Carr v. Security Savings & Loan Ass’n, 130 B.R. 434, 437-38 (D.N.J.1991). However, we agree with the observation of the Richardson court, 135 B.R. at 260, that the courts in neither Knaus nor Carr appear to have focused on the adequate protection requirement. We agree with the reasoning of Richardson and the prior decisions in this jurisdiction which support it. We therefore reject the assumption made" }, { "docid": "7900737", "title": "", "text": "to its sale is that of a right of redemption under Section 9-506 of the Uniform Commercial Code. Utah Code Ann. § 70A-9-506 (Repl.1980). See In re Anderson, 29 B.R. 563, 564 (Bkrtcy.E.D.Va.1983). Under Section 9-506, the debtors have the right to redeem collateral that has been repossessed, provided (1) the creditor has not disposed of the collateral or contracted for its disposition under Section 9-504; (2) the creditor’s right to retain the collateral has not become fixed under Section 9-505(2); (3) the parties have not otherwise agreed in writing after the default; and (4) the debtors tender fulfillment of the secured obligation, plus the expenses incurred in repossessing the collateral. Utah Code Ann. § 70A-9-506, supra. A debt- or’s right to redeem is property of the estate. In re King, 14 B.R. 316, 317-18, 7 B.C.D. 530 (Bkrtcy.M.D.Tenn.1981); In re Brickel, 11 B.R. 353, 355, 7 B.C.D. 957 (Bkrtcy.D.Me.1981); In re Gunder, 8 B.R. 390, 393 (Bkrtcy.S.D.Ohio 1980); In re Williams, 6 B.R. 789, 6 B.C.D. 1219 (Bkrtcy.E.D.Mich.1980). Furthermore, Section 1322(b)(3) permits a Chapter 13 debtor to cure any default, and thereby negates the effect of acceleration clauses. In re Taddeo, 685 F.2d 24 (2d Cir.1982). See In re Anderson, supra, 29 B.R. at 565; In re Kokkinis, 22 B.R. 353, 355 (Bkrtcy.N.D.Ill., 1982). A turnover proceeding “is essentially a proceeding for restitution.” Maggio v. Zeitz, 333 U.S. 56, 63, 68 S.Ct. 401, 405, 92 L.Ed. 476 (1948). The Bankruptcy Court can order the turnover of property in which the debtor holds only a contingent possessory right, such as a right of redemption or the right to cure a default, as long as adequate protection can be afforded to the secured party. United States v. Whiting Pools, Inc., 674 F.2d 144, 155-56 (2d Cir.1982), aff'd 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515, supra; Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962, 966-67 (5th Cir.1983); In re Sunrise Equipment and Development Corp., 24 B.R. 26, 27 (Bkrtcy.D.Ariz.1982); In re Alpa Corp., 11 B.R. 281, 289-90, 7 B.C.D. 791 (Bkrtcy.D.Utah 1981); Matter of Day Resource & Development" }, { "docid": "7900736", "title": "", "text": "the debtor in property as of the commencement of the ease, as well as property and earnings acquired after the commencement of the case but before the case is closed, converted, or dismissed. 11 U.S.C. §§ 541, 1306. Property of the estate, as defined by Section 541, encompasses more than just property in the debtor’s possession at the time of filing the bankruptcy petition. United States v. Whiting Pools, 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 67-68 (1977), 1978 U.S.Code Cong. & Admin. News, pp. 5787, 6323-24; S.Rep. No. 95-989, 95th Cong., 2d Sess. 82-3 (1978), 1978 U.S.Code Cong. & Admin.News, pp. 5868-69. See In re Independent Clearing House Company, 41 B.R. 985, 998, 12 B.C.D. 44, 11 C.B.C.2d 196 (Bkrtcy.D.Utah 1984). Section 541(a)(1) defines property of the estate as all legal and equitable interests held by a debtor. In re Southern Equipment Sales, Co., Inc., 24 B.R. 788, 792 (Bkrtcy.D.N.J.1982). The debtors’ interest in the 1978 Chevrolet pickup truck after its repossession and prior to its sale is that of a right of redemption under Section 9-506 of the Uniform Commercial Code. Utah Code Ann. § 70A-9-506 (Repl.1980). See In re Anderson, 29 B.R. 563, 564 (Bkrtcy.E.D.Va.1983). Under Section 9-506, the debtors have the right to redeem collateral that has been repossessed, provided (1) the creditor has not disposed of the collateral or contracted for its disposition under Section 9-504; (2) the creditor’s right to retain the collateral has not become fixed under Section 9-505(2); (3) the parties have not otherwise agreed in writing after the default; and (4) the debtors tender fulfillment of the secured obligation, plus the expenses incurred in repossessing the collateral. Utah Code Ann. § 70A-9-506, supra. A debt- or’s right to redeem is property of the estate. In re King, 14 B.R. 316, 317-18, 7 B.C.D. 530 (Bkrtcy.M.D.Tenn.1981); In re Brickel, 11 B.R. 353, 355, 7 B.C.D. 957 (Bkrtcy.D.Me.1981); In re Gunder, 8 B.R. 390, 393 (Bkrtcy.S.D.Ohio 1980); In re Williams, 6 B.R. 789, 6 B.C.D. 1219 (Bkrtcy.E.D.Mich.1980). Furthermore, Section 1322(b)(3) permits a Chapter" }, { "docid": "3754547", "title": "", "text": "1137, 1140 n. 3 (N.D.N.Y.1975) (“[Article 46] supplants existing law which applies Article 9 of the U.C.C. to security interests in motor vehicles.”). Although Appellant contends that he perfected his security interest in accordance with the Uniform Commercial Code, I can find no statutory provision or controlling case decision which entitles him to do so. On the contrary, the Official Comment to U.C.C. § 9-302 unequivocally states that subsection (3) of that provision exempts from the filing provisions (of Article 9) transactions as to which an adequate system of filing, state or federal, has been established. Article 46 of the New York Vehicle and Traffic Law is such a system. The Official Comment goes on to state that “when such a system exists perfection of a relevant security interest can be had only through compliance with that system (i.e., filing under this article is not a permissible alternative.)” N.Y. U.C.C. § 9-302, Official Comment 8 (McKinney 1978) (emphasis added); see also N.Y. U.C.C. § 9-307, Official Comment 3 (McKinney 1978) (“[W]here motor vehicles are concerned, in a state having such a certificate of title law, perfection will be under that law.”). Based on the foregoing, Appellant’s failure to comply with the Article 46 clearly renders his security interest unperfected and, accordingly, his claim unsecured. See General Motors Acceptance Corp. v. Wali gora, 24 B.R. 905, 906 (Bankr.W.D.N.Y.1982); In re Harvey, 80 B.R. 533, 540 (Bankr.N.D.Okl.1987). Thus, the next inquiry is what effect, if any, the filing of a Chapter 13 petition has on an unsecured creditor’s pre-petition repossession of a debtor’s vehicle. In United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983), the Supreme Court held that collateral which has been repossessed by a secured creditor immediately prior to the filing of a Chapter 11 petition is property of the bankruptcy estate and therefore subject to turnover pursuant to section 542(a) of the Bankruptcy Code (“Code”). Several courts have analyzed the Whiting Pools decision and determined that the holding, which cited the Congressional goal of encouraging and facilitating Chapter 11 reorganizations, should be" }, { "docid": "18522828", "title": "", "text": "2314 (footnotes omitted and emphasis supplied). The Supreme Court further found that, “[i]n effect, § 542(a) grants to the estate a possessory interest in certain property of the debtor that was not held by the debtor at the commencement of reorganization proceedings. The Bankruptcy Code provides secured creditors various rights, including the right to adequate protection, and these rights replace the protection afforded by possession.” Id. at 207, 103 S.Ct. at 2314-15 (footnotes omitted). Chrysler urges that this Court give a restrictive reading to Whiting Pools and find that under Massachusetts law the Debtor’s only property interest in the repossessed Jeep is his right to redeem it. This Court finds that such a reading of Whiting Pools would be unduly restrictive and unsupported by recent case law. In support of its position, Chrysler cites the following inapposite cases: In re Gull Air, Inc., 890 F.2d 1255 (1st Cir.1989) (concerning debtor’s license to use airport slots); Good Hope Refineries, Inc. v. Benavides, 602 F.2d 998 (1st Cir.1979) (concerning debtor’s rights under an agreement similar to option contract); In re Players’ Pub, 45 B.R. 387 (Bankr.D.Mass.1985) (concerning debtor’s rights under a real property lease); In re Anne Cara Oil Co., Inc., 32 B.R. 643 (Bankr.D.Mass.1983) (concerning debtor’s rights under a franchise agreement). These cases are distinguishable from the instant ease since in none did the Debtor own more than a contract right. In the instant case, the Debtor owns the res. Even after Chrysler repossessed the Collateral, title to the Jeep was in the Debtor’s name and, under Mass.Gen.L. eh. 255B, § 20B(c), would so remain until it was sold, under contract for sale, or until Chrysler obtained the right to retain the collateral in satisfaction of the Debtor’s obligation. In support of its argument, Chrysler also cites In re Morgan, 23 B.R. 700 (Bankr.E.D.Pa.1982), which case is on point. In Morgan, the Court found that under Pennsylvania state law the Debtor’s rights in a repossessed automobile were limited only to the right to redeem. The Morgan decision, however, predates Whiting Pools. Since Whiting Pools, several bankruptcy courts have considered debtors’ rights" }, { "docid": "18557856", "title": "", "text": "in possession or control of property that the trustee may use, sell or lease under 11 U.S.C. § 363, or that the debtor may exempt, shall deliver such property to the trustee unless that property is of inconsequential value to the estate. In construing § 542, the United States Supreme Court has recently held that “the reorganization estate [of a chapter 11 debtor] includes property of the debtor that has been seized by a creditor prior to the filing of the petition for reorganization.” United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 2315, 76 L.Ed.2d 515 (1983). The debtor’s right to turnover apparently terminates when the creditor becomes vested with an ownership interest in the repossessed property rather than a mere posses-sory interest. Id. at 2316. Turnover likewise must be denied unless the debtor proves that the creditor’s interest in the property is adequately protected. 11 U.S.C. § 363(e); Whiting Pools, 103 S.Ct. at 2313. In the case at bench the vehicle in question is not insured and as such it is not adequately protected. In Re Heinzeroth, 40 B.R. 518 (Bankr.E.D.Pa., 1984); First National Bank and Trust Company of Rockford v. Ausherman (In Re Ausherman), 34 B.R. 393 (Bankr.N.D.Ill.1983); Ward v. Scott Segal Farms, Inc. (In Re Scott Segal Farms, Inc.), 31 B.R. 377 (Bankr.S.D.Fla.1983). In light of this conclusion we need not decide whether the rule announced in Whiting Pools for chapter 11 debtors is applicable to the case at bench which is a chapter 13 proceeding. We will enter an order denying the complaint for turnover. . This opinion constitutes the findings of fact and conclusions of law required by Bankruptcy Rule 7052 (effective August 1, 1983). . § 542. Turnover of property to the estate (a) Except as provided in subsection (c) or (d) of this section, an entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to" }, { "docid": "8508977", "title": "", "text": "the Automobile that became part of her bankruptcy estate. The Debtor’s estate is comprised of the Debtor’s interest in property as of the commencement of the bankruptcy, 11 U.S.C. § 541(a)(1), and that interest is in turn governed by state law. Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993); Butner v. U.S., 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). On the date the petition was filed, Chrysler had repossessed the Automobile but had not sold it. If Debtor still had a right to recover the Automobile, she had a property interest protected by the automatic stay. See General Motors v. English (In re English), 20 B.R. 877, 878-79 (Bankr.E.D.Pa.1982) (finding that Debt- or had limited property interest in automobile repossessed pre-petition as defined by the MVSFA). According to the Notice of Repossession, the Debtor had the right to renew her contract through reinstatement or redeem the Automobile by full payment “AT ANY TIME BEFORE IT IS SOLD.” Ex. P-2 (capitalized in original). The Automobile was sold on December 14, 1999. As of that date, Debtor contends that she had complied with the Notice of Repossession so that Chrysler was obligated to return the Automobile to her. Significantly, even if she had not yet complied, she would still have had the right to do so since the Automobile had not been sold as of the date bankruptcy was commenced. Id.; General Motors Acceptance Corp. v. Morgan (In re Morgan), 23 B.R. 700, 702 (Bankr.E.D.Pa.1982) (because debtor filed Chapter 13 petition during period in which he could exercise his right of redemption, that right was property of the estate as of date of filing or petition). Compare Weiser v. Pennsylvania Nat’l Bank (In re Weiser), 44 B.R. 224, 225 (Bankr.M.D.Pa.1984) (petition to redeem filed subsequent to redemption period so car was not property of the estate under § 541). Therefore, there can be no doubt that Chrysler’s post-petition sale of the Automobile, without first seeking court approval, was a violation of the automatic stay under 11 U.S.C. §§ 362(a)(3), (a)(4), (a)(5) and" }, { "docid": "14137160", "title": "", "text": "as adequate protection. Whiting Pools, 462 U.S. at 207, 103 S.Ct. 2309. The Ohio UCC permits repossession and eventual sale of a debtor’s vehicle as the procedural mechanism to foreclose and satisfy a security interest. Contrary to Tidewater’s assertions, this procedural remedy does not change the parties’ substantive rights. Only the diminution of the value of the collateral is entitled to protection. Whiting Pools, 462 U.S. at 210-11, 103 S.Ct. 2309; In re Balderas, 328 B.R. 707, 720 (Bankr.W.D.Tex.2005). In support of its tenuous argument that payment of the full redemption value is the sole method to adequately protect its interest, Tidewater relies upon the distinguishable decisions of the Eleventh Circuit Court of Appeals in Bell-Tel Fed. Credit Union v. Kalter (In re Kalter), 292 F.3d 1350 (11th Cir.2002) and Charles R. Hall Motors, Inc. v. Lewis (In re Lewis), 137 F.3d 1280 (11th Cir.1998). In Kalter and Lewis, applying Florida and Alabama law respectively, the Eleventh Circuit determined that ownership of the vehicles immediately transferred to the creditors upon repossession; therefore, the debtor’s only interest in the vehicle was a bare right of redemption. In re Kalter, 292 F.3d at 1360; In re Lewis, 137 F.3d at 1284. Relying on state law, the Eleventh Circuit held that turnover was inappropriate because the debtors’ chapter 13 plans failed to redeem their vehicles. In re Kalter, 292 F.3d at 1356; In re Lewis, 137 F.3d at 1285. Tidewater’s reliance upon Kalter is misplaced. Ohio law, unlike Florida law, does not provide for immediate transfer of full ownership until disposition, usually repossession sale, of the vehicle. As the Eleventh Circuit later recognized in Motors Acceptance Corp. v. Rozier (In re Rozier), 376 F.3d 1323, 1324 (11th Cir.2004), the result is governed by applicable state law. In Rozier, the Eleventh Circuit certified the question of ownership to the Georgia Supreme Court which held that, under Georgia law, ownership does not pass to the creditor upon repossession alone. Id. at 1324; Motors Acceptance Corp. v. Rozier, 278 Ga. 52, 597 S.E.2d 367, 368 (2004). Consistent with the answer to its certified question, the Eleventh" }, { "docid": "14137159", "title": "", "text": "law, based upon power to modify secured creditor’s claim). Just as the Debtor lost the right of possession to her vehicle prior to her chapter 13 petition and outside of bankruptcy could not have regained possession without redeeming the vehicle through payment in full, the debtor in Whiting Pools lost the right of possession by virtue of the IRS seizure prior to filing its bankruptcy petition and outside of bankruptcy could not have regained possession except by tendering payment in full, much like redeeming the collateral under the UCC. See 26 U.S.C. § 6337(a). However, despite the Internal Revenue Code’s requirement of full payment of all obligations owed to regain possession, the Supreme Court’s opinion in Whiting Pools is conspicuously silent on any requirement that a debtor must make full payment in a reorganization plan. Rather, in Whiting Pools the Court held that bankruptcy law gives the debtor a right of possession enforceable by turnover under § 542(a) and the Bankruptcy Code replaces the protection afforded to secured creditors by possession with other rights such as adequate protection. Whiting Pools, 462 U.S. at 207, 103 S.Ct. 2309. The Ohio UCC permits repossession and eventual sale of a debtor’s vehicle as the procedural mechanism to foreclose and satisfy a security interest. Contrary to Tidewater’s assertions, this procedural remedy does not change the parties’ substantive rights. Only the diminution of the value of the collateral is entitled to protection. Whiting Pools, 462 U.S. at 210-11, 103 S.Ct. 2309; In re Balderas, 328 B.R. 707, 720 (Bankr.W.D.Tex.2005). In support of its tenuous argument that payment of the full redemption value is the sole method to adequately protect its interest, Tidewater relies upon the distinguishable decisions of the Eleventh Circuit Court of Appeals in Bell-Tel Fed. Credit Union v. Kalter (In re Kalter), 292 F.3d 1350 (11th Cir.2002) and Charles R. Hall Motors, Inc. v. Lewis (In re Lewis), 137 F.3d 1280 (11th Cir.1998). In Kalter and Lewis, applying Florida and Alabama law respectively, the Eleventh Circuit determined that ownership of the vehicles immediately transferred to the creditors upon repossession; therefore, the debtor’s only" }, { "docid": "3505500", "title": "", "text": "the forfeiture of all rights to the motor vehicle itself.”). Citadel contends that this provision of Pennsylvania’s MVSFA, which allows the owner only a right to redeem the vehicle upon repossession and only for a very limited period of 15 days, differs from other jurisdictions and restricts this debt- or’s property rights under chapter 13. It asserts: The filing of the Petition under Chapter 13 of the Bankruptcy Code did not change the Debtor’s rights under Pennsylvania law, and her only option was her right to redeem. Citadel’s Memorandum, at 4. In support thereof, Citadel cites decisions such as In re Harrington, Bankr. No. 04-30028 (Bankr.E.D.Pa., Oct. 27, 2004); In re Morgan, 23 B.R. 700 (Bankr.E.D.Pa.1982); and In re Haines, 10 B.R. 856 (Bankr.E.D.Pa.1981). The debtor counters that those decisions applying Pennsylvania law to restrict application of section 542(a) overlook the Supreme Court’s interpretation of this Bankruptcy Code provision in United States v. Whiting Pools, Inc. Ms. Reid further relies upon decisions such as In re Singer, 368 B.R. 435 (Bankr.E.D.Pa.2007); In re Patterson, 2000 WL 1692838 (Bankr.E.D.Pa.2000); and In re Attinello, 38 B.R. 609 (Bankr.E.D.Pa.1984), maintaining that Pennsylvania’s limited right of redemption after repossession does not preclude a chapter 13 debtor from recovering the vehicle from the lender by virtue of federal bankruptcy law. I decline the parties’ invitation to analyze the effect of a chapter 13 filing upon a prepetition repossession pursuant to Pennsylvania’s MVSFA. Both parties have overlooked the terms of the financing contract, which states in relevant part: 15. SOME THINGS YOU SHOULD KNOW IF WE REPOSSESS THE VEHICLE: If we repossess without using a judicial process: a. REDEMPTION: You have the right to buy back (redeem) the Vehicle before we sell the Vehicle. If you do not redeem, you give up all claim to the Vehicle. b. SALE: If you don’t redeem by the sale date, we will sell the Vehicle. 17. GOVERNING LAW: This contract is to be interpreted according to the law of Delaware. Complaint, ex. A. As assignee, Citadel is bound by these provisions. See generally Medtronic AVE, Inc. v. Advanced Cardiovascular" }, { "docid": "3754548", "title": "", "text": "in a state having such a certificate of title law, perfection will be under that law.”). Based on the foregoing, Appellant’s failure to comply with the Article 46 clearly renders his security interest unperfected and, accordingly, his claim unsecured. See General Motors Acceptance Corp. v. Wali gora, 24 B.R. 905, 906 (Bankr.W.D.N.Y.1982); In re Harvey, 80 B.R. 533, 540 (Bankr.N.D.Okl.1987). Thus, the next inquiry is what effect, if any, the filing of a Chapter 13 petition has on an unsecured creditor’s pre-petition repossession of a debtor’s vehicle. In United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983), the Supreme Court held that collateral which has been repossessed by a secured creditor immediately prior to the filing of a Chapter 11 petition is property of the bankruptcy estate and therefore subject to turnover pursuant to section 542(a) of the Bankruptcy Code (“Code”). Several courts have analyzed the Whiting Pools decision and determined that the holding, which cited the Congressional goal of encouraging and facilitating Chapter 11 reorganizations, should be extended to Chapter 13 cases as well. See In re Attinello, 38 B.R. 609, 611 (Bankr.E.D.Pa.1984); In re Robinson, 36 B.R. 35, 37 (Bankr.E.D.Ark.1983); In re Radden, 35 B.R. 821, 827 (Bankr.E.D.Va.1983). In that vein, the court in Robinson, supra, stated: the congressional goal of encouraging individual reorganization under Chapter 13 is as high a priority, if not higher, as the goal of encouraging Chapter 11 which the Supreme Court refers to in Whiting Pools. The broad application of § 542(a) in a Chapter 13 proceeding is entirely consistent with this goal and is consistent with the Supreme Court analysis and conclusion in Whiting Pools. 36 B.R. at 38. I concur with those courts which have extended Whiting Pools to the Chapter 13 context. Furthermore, this court is of the opinion that the Whiting Pools rationale applies with equal, if not greater, force in this case for the very fact that Appellant is an unsecured creditor. Such an extension is rational in that an unsecured creditor’s rights are generally subordinate to those of a secured" }, { "docid": "18522829", "title": "", "text": "contract); In re Players’ Pub, 45 B.R. 387 (Bankr.D.Mass.1985) (concerning debtor’s rights under a real property lease); In re Anne Cara Oil Co., Inc., 32 B.R. 643 (Bankr.D.Mass.1983) (concerning debtor’s rights under a franchise agreement). These cases are distinguishable from the instant ease since in none did the Debtor own more than a contract right. In the instant case, the Debtor owns the res. Even after Chrysler repossessed the Collateral, title to the Jeep was in the Debtor’s name and, under Mass.Gen.L. eh. 255B, § 20B(c), would so remain until it was sold, under contract for sale, or until Chrysler obtained the right to retain the collateral in satisfaction of the Debtor’s obligation. In support of its argument, Chrysler also cites In re Morgan, 23 B.R. 700 (Bankr.E.D.Pa.1982), which case is on point. In Morgan, the Court found that under Pennsylvania state law the Debtor’s rights in a repossessed automobile were limited only to the right to redeem. The Morgan decision, however, predates Whiting Pools. Since Whiting Pools, several bankruptcy courts have considered debtors’ rights in repossessed collateral. Under substantially similar facts and applicable repossession and redemption statutes to the case at bar, the court in the case of In re Teri Lynn Karr, 129 B.R. 498 (Bankr.S.D.Ohio 1991) found that “[w]here the collateral is not sold pre-petition, the debtor has an interest constituting property of the estate and, under the rationale of United States v. Whiting Pools, Inc., ... [citation omitted], turnover may be ordered pursuant to 11 U.S.C. § 542.” In the case of In re Bruce Allen Bingham, 116 B.R. 541, 543 (Bankr.N.D.Ohio 1990), after finding that “the mere act of repossession” was insufficient to transfer ownership of a repossessed vehicle under Ohio law and that the debtor maintained an equity of redemption, the court ordered the creditor to turnover the property. Accord In re Young, 193 B.R. 620, 621 (Bankr.D.D.C.1996) (finding that “the mere seizure of the vehicle did not suffice to destroy the debtor’s title as long as the debtor had a right to redeem”); In re Wallace, 102 B.R. 114 (Bankr.S.D.Ohio 1989). This Court" }, { "docid": "3505499", "title": "", "text": "the debtor’s property interests at the time of her bankruptcy filing on December 17th are determined by state law. Those property rights, Citadel maintains, are severely limited by Pennsylvania’s Motor Vehicle Sales Finance Act (“MVSFA”), 69 P.S. §§ 601, et seq., which statute permits repossession of a motor vehicle upon a debtor’s default. 69 P.S. § 623. Moreover, upon repossession, Pennsylvania law provides that the owner of the vehicle has only 15 days from the date of notice of repossession to redeem the vehicle from the lender, upon payment of the loan balance due plus repossession costs and interest. 69 P.S. § 625. If the vehicle is not redeemed within that time period, the MVSFA provides: When a repossessed motor vehicle under an installment sale contract in not redeemed by the buyer ... within the fifteen (15) day notice of redemption period, the buyer shall forfeit all claim to such motor vehicle.... 69 P.S. § 626(a); see Whiteman v. Degnan Chevrolet Inc., 217 Pa.Super. 424, 428, 272 A.2d 244 (1970) (section 626(a) “specifically provides for the forfeiture of all rights to the motor vehicle itself.”). Citadel contends that this provision of Pennsylvania’s MVSFA, which allows the owner only a right to redeem the vehicle upon repossession and only for a very limited period of 15 days, differs from other jurisdictions and restricts this debt- or’s property rights under chapter 13. It asserts: The filing of the Petition under Chapter 13 of the Bankruptcy Code did not change the Debtor’s rights under Pennsylvania law, and her only option was her right to redeem. Citadel’s Memorandum, at 4. In support thereof, Citadel cites decisions such as In re Harrington, Bankr. No. 04-30028 (Bankr.E.D.Pa., Oct. 27, 2004); In re Morgan, 23 B.R. 700 (Bankr.E.D.Pa.1982); and In re Haines, 10 B.R. 856 (Bankr.E.D.Pa.1981). The debtor counters that those decisions applying Pennsylvania law to restrict application of section 542(a) overlook the Supreme Court’s interpretation of this Bankruptcy Code provision in United States v. Whiting Pools, Inc. Ms. Reid further relies upon decisions such as In re Singer, 368 B.R. 435 (Bankr.E.D.Pa.2007); In re Patterson, 2000" }, { "docid": "10345572", "title": "", "text": "notice of redemption period, the buyer shall forfeit all claim to such motor vehicle and collateral security. Pa.Stat.Ann. tit. 69, § 626 A (Purdon 1967). Pennsylvania law clearly provides that once an automobile has been repossessed the buyer has only two options. First, he can treat the sales contract as terminated, in which case the buyer cannot recover the automobile. Or, in the alternative, he can pay in full the redemption value (as defined in that statute) of the automobile. See In re Haines, 10 B.R. 856 (Bkrtcy.E.D.Pa.1981). The debtor in the case at bench has not attempted to exercise any of these rights. GMAC argues, we think, incorrectly, that the automobile in question is not property of the debtor’s estate because the debt- or, on the date the petition was filed, had no interest in the automobile other than the right to redeem it from GMAC. See GMAC’s memorandum of law, p. 4. To the contrary, it is precisely this right to redeem, subject to the provisions of section 108(b), infra, of the Code, that is property of the debtor’s estate. As we said in Haines, supra: sf; j}: s|s [Hjere GMAC has more than a security interest in the automobile, it has possession of the automobile with the right to resell it. Further, by repossessing the automobile GMAC has cut off all rights of the debtor therein save the right to redeem. We agree with GMAC’s assertion that nothing in the Code expands the interest which the debtor had in the automobile at the time of the filing of her petition. That interest was at that time limited to the right to redeem, (emphasis added). 10 B.R. at 859. Consequently, we conclude that, because the debtor filed his chapter 13 petition during that period of time within which he could exercise his redemptive right, his right of redemption under section 626 A of the Vehicle Sales Act was property of the estate as of the date of the filing of the petition. Nevertheless, we find section 108(b) of the Code to be the dispositive factor in this case." }, { "docid": "18141788", "title": "", "text": "an exception to the similar duty to pay a matured obligation owed to the estate, it did so clearly within section 542(b). See 11 U.S.C. § 542(b) (excusing payment of a mature obligation to the estate if the obligor has a right of setoff). Neither section 362 nor section 542 contains any language that would indicate an exception to the turnover obligation for secured creditors who have unilaterally determined that their interests are not adequately protected. Instead, as Sharon noted, the procedural framework established by the Code places the burden of moving for a determination of adequate protection or limitations on the debtor’s use of estate property upon the secured creditor, not the debtor. See In re Sharon, 234 B.R. 676, 687 (6th Cir. BAP 1999); In re Metromedia Fiber Network, Inc., 290 B.R. 487, 493 (Bankr.S.D.N.Y.2003) (holding that secured creditor’s failure to turn over collateral upon debtor’s request, “necessitating commencement of [an] adversary proceeding, constituted an exercise of control over the debt- or’s property in violation of the automatic stay under Section 362(a)(3)”); Nissan Motor Acceptance Corp. v. Baker, 239 B.R. 484 (N.D.Tex.1999) (“Appellant’s action is a violation of its obligation under § 542(a) to turnover estate property, and subverts the authority of the Bankruptcy Court as specified in § 363(e) to order adequate protection when the Bankruptcy Court, not the creditor, deems such protection necessary.”). Courts on both sides of the split cite the United States Supreme Court’s decision in In re Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983), in support of their respective holdings. However, setting aside the fact that the issue before this Court was not actually before the Supreme Court in Whiting Pools, the holding and language of Whiting Pools favor the majority’s interpretation of the interplay between section 542(a) and section 363. Whiting Pools stands for two propositions: 1) property repossessed prior to the filing of a bankruptcy petition becomes property of the bankruptcy estate; and 2) a debtor can seek turnover of that property if the creditor fails to turn it over, even if the creditor is" }, { "docid": "5132893", "title": "", "text": "third element of proof that the property is of consequential value or benefit to the estate, this Court notes, without further discussion, that because the property is necessary for an effective reorganization of the debtor under its Chapter 13 plan that it does indeed have value and is of benefit to the estate. Courts have often ordered the turnover of an automobile to Chapter 13 debtor in circumstances similar to those of the instant case. In re Williams, 6 B.R. 789 (Bkrtcy.E.D.Mich.1980). In In re Williams, it is significant to note that one reason the Court granted the turnover to the Chapter 13 debtor was “it is also foreseeable that Williams will be unable to propose or complete the Chapter 13 plan if deprived of the use of the vehicle.” 6 B.R. at 792. See also, In re Anderson, 29 B.R. 563 (Bkrtcy.E.D.Va.1983); In re Brickel, 11 B.R. 353 (Bkrtcy.D.Maine 1981); In re King, 14 B.R. 316 (Bkrtcy.M.D.Tenn.1981); In re Barsky, 6 B.R. 624 (Bkrtcy.E.D.Pa.1980). As a final note the Court acknowledges that until recently a split of authority existed as to whether the debtor retained a sufficient interest in repossessed property upon which that debtor could obtain turnover pursuant to § 542. Compare Cross Electric Co. v. United States, 664 F.2d 1218, (4th Cir.1981) with In re Whiting Pools, Inc., 674 F.2d 144 (2nd Cir.1982). This Court is satisfied that the United States Supreme Court’s decision in United States v. Whiting Pools, Inc., - U.S. -, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983), resolves this conflict between the circuits. In the opinion, the Court states that “while there are explicit limitations on the reach of § 542(a) none requires that the debtor hold a possessory interest in the property at the commencement of the reorganization proceedings”. 103 S.Ct. at 2314. The court goes on to state that the right of adequate protection provided for in 11 U.S.C. § 363(e) replaces the protection afforded by possession. Therefore, the debtor herein had sufficient interest in the property upon which to base § 542 turnover complaint. For the reasons discussed above, this" }, { "docid": "3505504", "title": "", "text": "Delaware has the right to redeem her collateral until its sale under section 9-610. 6 Del. C. § 9-623(c). III. While there are decisions supporting Citadel’s position opposing turnover, when a debtor files a bankruptcy petition under chapter 13 (or 11) after her vehicle has been repossessed, but before its sale by the secured creditor, “[t]he majority view provides that the vehicle is property of the estate and must be turned over to the debtor.” 7 Norton Bank. L. & Prac.3d, § 143:18 (2010). For example, In re Estis, 311 B.R. 592 (Bankr.D.Kan.2004), after analyzing the provisions of UCC Revised Article 9 (mentioned above), which were enacted by Kansas, the court concluded that the prepetition repossession of a vehicle does not transfer all of the debt- or’s ownership rights, those residual rights become property of the debtor’s bankruptcy estate under section 541(a) upon commencement of the case, and the vehicle is subject to turnover under section 542(a) (upon demonstration of adequate protection). Furthermore, the secured claim of the lender is not eliminated by the UCC upon repossession. See also, e.g., In re Curry, 347 B.R. 596 (6th Cir. BAP 2006), aff'd, 509 F.3d 735 (6th Cir.2007); Turnover Rights Revisited (Or Repudiated Sub Silentio?): Who “Owns ” Collateral Repossessed by a Secured Creditor?, Bankruptcy Law Letter, 2002 WL 1786081 (Aug.2002). For the following reasons, the Supreme Court’s decision in United States v. Whiting Pools, 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983), supports the position of decisions such as Curry and Estis. Therefore, Ms. Reid’s bankruptcy estate under section 541(a) includes property rights provided by Delaware’s Revised Article 9 of the UCC, which rights entitle her to turnover of the vehicle repossessed by Citadel pursuant to 11 U.S.C. § 542(a), upon provision of adequate protection. In Whiting Pools, the Internal Revenue Service had levied, prepetition, upon the taxpayer’s personal property. It had also seized and was in possession of that personal property prior to the taxpayer filing a voluntary chapter 11 bankruptcy petition. Id., 462 U.S. at 200, 103 S.Ct. 2309. Under federal law, as with the UCC, the" }, { "docid": "13553533", "title": "", "text": "definition. United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 2312, 76 L.Ed.2d 515 (1983). Property of the estate inter alia includes property in which a creditor has a secured interest. Id. at 2313. “Although Congress might have safeguarded the interests of secured creditors outright by excluding from the estate any property subject to a secured interest, it chose instead to include such property in the estate and to provide secured creditors with ‘adequate protection’ for their interests.” Id. Moreover, the Supreme Court has determined that property of the estate includes property in which the debtor had no possessory rights at the time the bankruptcy petition was filed. Id. at 2313-14 (citing 11 U.S.C. § 542(a)). Thus, “the reorganization estate includes property of the debtor that has been seized by a creditor prior to the filing of a petition for reorganization.” Id. at 2315. The creditor remains entitled to adequate protection for its interests and to certain other rights enjoyed by secured creditors. The opinion said that such a creditor must seek the protection of its interest “according to the con-gressionally established bankruptcy procedures, rather than by withholding the seized property from the debtor’s efforts to reorganize.” Id. at 2317 It was further held that property seized pre-petition was property of the bankruptcy estate and could be subject to turnover (while not specifying whether or not this principle would apply in a Chapter 13 case). Id. at 2315 n. 17. Most bankruptcy and district court opinions have decided that a Chapter 13 debtor retains sufficient interest in a vehicle that was repossessed pre-bankruptcy to maintain an action or motion for turnover. See In re Spears v. Ford Motor Credit Co., 223 B.R. 159, 163 (Bankr.N.D.Ill.1998) (collecting cases); see also In re Pluta, 200 B.R. 740, 742 (Bankr.D.Mass.1996) (finding car remained property of estate because debtor still had right to redeem); In re Brooks, 207 B.R. 738, 741 (Bankr.N.D.Fla.1997) (finding creditor had obligation to return car upon learning of bankruptcy); In re Massey, 210 B.R. 693, 696 (Bankr.D.Md.1997) (finding creditor could keep car only until debtor provided adequate" }, { "docid": "18141789", "title": "", "text": "Motor Acceptance Corp. v. Baker, 239 B.R. 484 (N.D.Tex.1999) (“Appellant’s action is a violation of its obligation under § 542(a) to turnover estate property, and subverts the authority of the Bankruptcy Court as specified in § 363(e) to order adequate protection when the Bankruptcy Court, not the creditor, deems such protection necessary.”). Courts on both sides of the split cite the United States Supreme Court’s decision in In re Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983), in support of their respective holdings. However, setting aside the fact that the issue before this Court was not actually before the Supreme Court in Whiting Pools, the holding and language of Whiting Pools favor the majority’s interpretation of the interplay between section 542(a) and section 363. Whiting Pools stands for two propositions: 1) property repossessed prior to the filing of a bankruptcy petition becomes property of the bankruptcy estate; and 2) a debtor can seek turnover of that property if the creditor fails to turn it over, even if the creditor is the Internal Revenue Service. See id. Some courts have read into Whiting Pools a requirement that the debtor-in-possession or trustee must provide the secured creditor with adequate protection before the creditor will have an affirmative obligation to turn over the property, but Whiting Pools does not address this issue. The Supreme Court itself framed the issue before it as whether section 542(a) “authorized the Bankruptcy Court to subject the IRS to a turnover order with respect to the seized property.” Id. at 199, 103 S.Ct. 2309. Whether the IRS violated the automatic stay by failing to release the seized property to the debtor-in-possession upon the demand of the debtor-in-possession was not an issue before the Court, and the Court was not asked to opine on whether the creditor’s failure to turn over estate property was a violation of section 362(a)(3), which did not then contain the “exercise control” language, added to that section in 1984. See In re Del Mission, Ltd., 98 F.3d 1147 (9th Cir.1996) (“The ‘exercise control’ clause of § 362(a)(3) was added" } ]

[ { "docid": "21178570", "title": "", "text": "to every prosecution under the statute’ and of which the accused is entitled to be apprised by the indictment.” (320 F.2d at 191) Lauer expressly distinguishes Rivera on this ground. It is settled in this and other circuits that a plea of guilty to an indictment is an admission of all non-jurisdictional facts alleged in the charge, and that the judgment and sentence may not be collaterally attacked under 28 U.S.C. § 2255 for technical or non-jurisdictional defects. See Fiano v. United States, 9 Cir., 1961, 291 F.2d 113. We think that Robison’s point 2, that the indictment is duplicitous because it states that he did “sell or facilitate the sale” of heroin, if a defect at all, is non-jurisdictional. The same is true of his 5th point, that the indictment does not show the alleged offense to be in violation of any statute of the United States. It is true that the body of the indictment does not refer to the statute, but it is in the language of the statute, and this is enough. Furthermore, the indictment is entitled “Indictment, 21 U.S.C. 174 — Sale of Heroin.” Each of the three counts charges a separate sale, under that statute. This leaves only point 3, that the indictment is defective because it does not show how and by what means appellant knew the heroin involved was illegally imported. The difficulty with this contention is that the indictment does directly allege Robison’s knowledge. His plea of guilty admitted this knowledge. See Berg v. United States, 9 Cir., 1949, 176 F.2d 122; Forthoffer v. Swope, 9 Cir., 1939, 103 F.2d 707. Under these circumstances, Robison is in no position to attack the “presumption” embodied in the second paragraph of 21 U.S.C. § 174. This is a matter of proof. Robison having admitted knowledge by his plea, the presumption played no part in his conviction. Affirmed." } ]

[ { "docid": "23036355", "title": "", "text": "(marihuana); Pon Wing Quong v. United States, 111 F.2d 751, 754-755 (9th Cir. 1940) (opium); Hood v. United States, 78 F. 2d 150 (10th Cir. 1935) (opium derivative); Wong Lung Sing v. United States, 3 F.2d 780, 781 (9th Cir. 1925) (opium). See also Brown v. United States, 222 F. 2d 293 (9th Cir. 1955) (heroin); Rodriguez v. United States, 218 F.2d 810 (5th Cir. 1955) (narcotic drug); United States v. Rodgers, 218 F.2d 536 (5th Cir. 1955) (heroin); Miller v. United States, 300 F. 529, 533 (6th Cir. 1924) (intoxicating liquor). But see Current v. United States, 287 F.2d 268, 269 (9th Cir. 1961) (marihuana) (dictum). Appellant argues that the cases relating to opium depend upon the premise that the importation of opium was wholly forbidden by statute. Language in early opinions lends support to this view. However, as we have noted, opium may be imported legally (Caudillo v. United States, 253 F.2d 513, 517 (9th Cir. 1958); Hernandez v. United States, 300 F.2d 114, 118 n. 11 (9th Cir. 1962)), and in any event we think a practical approach to criminal pleading requires the application of the rule where legal importation is extremely rare as well as where it is impossible. . Keck v. United States, 172 U.S. 434, 437, 19 S.Ct. 254, 43 L.Ed. 505 (1S09) (diamonds); Babb v. United States, 218 F.2d 538, 541 (5th Cir. 1955) (cattle). Compare Steiner v. United States, 229 F.2d 745, 748-749 (9th Cir. 1956) (psittacine birds). . A misapprehension reflected in the government’s brief should be corrected. Contrary to the government’s assumption, factually unrelated charges against some defendants could not be joined for trial simply because all of the defendants (except one as to whom severance was granted) were jointly charged with conspiracy in Count Three of the indictment. This is true even though the charges in all counts were “of the same or similar character,” and therefore under Rule 8(a), might have been joined in an indictment against a single defendant. Where multiple defendants are involved, Rule 8(b) requires that each count of the indictment arise out of “the" }, { "docid": "508647", "title": "", "text": "possession, invoking the provision of 21 U.S.C. § 174 whereby possession of narcotics “shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.” The defendant challenges the constitutionality of the presumption as applied at the trial to possession of isonipecaine. Isonipecaine is one of a series of narcotic drugs defined in 26 U.S.C. § 4731: “(f) Isonipecaine. — The word ‘isonipecaine’, as used in this part shall mean any substance identified chemically as l-methyl-4-phenylpiperidine-4-carboxylie acid ethyl ester, or any salt thereof, by whatever trade name designated.” and to which the prohibitions of 21 U.S.C. § 174 apply. The only evidence in the record casting any light on the nature and substance of isonipecaine may be fairly summarized as follows: The substance at the trial was identified as demerol, known variously as isonipecaine, meperidine hydrochloride and pethidine. It is used for medicinal purposes as a pain killer, is prescribed by doctors and is available by prescription only. We are furnished no information as to the amount of the drug manufactured either here or abroad nor are we referred to any authority on the subject. We have no reason to believe, on the basis of this record, that Congress’ enactment of the presumption as applied to isonipecaine is any less reasonable than the same presumption as applied to heroin, United States v. Savage, 292 F.2d 264 (2d Cir.), cert. denied 368 U.S. 880, 82 S.Ct. 129, 7 L.Ed.2d 80 (1961); marijuana, United States v. Gibson, 310 F.2d 79 (2d Cir. 1962); morphine, United States v. Moe Liss, 105 F.2d 144 (2d Cir. 1939), and opium, Yee Hee v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925), as to all of which drugs this or a similar presumption has been held constitutional. The defendant’s major reliance is upon Erwing v. United States, 323 F.2d 674 (9th Cir. 1963), in which the Ninth Circuit recently held unconstitutional the presumption of 21 U.S.C. § 174 as applied to cocaine hydrochloride. Assuming the Erwing case to have been correctly decided, it is" }, { "docid": "23243953", "title": "", "text": "court held in Pon Wing Quong v. United States, 9 Cir., 1940, 111 F.2d 751, 756, that tlie framers of Section 174 in using the word “facilitate”, “must have had in mind the common and ordinary definition as expressed by a standard dictionary. Quoting from Webster’s Unabridged Dictionary ‘facilitate’ is defined as follows: ‘To make easy or less .difficult; to free from difficulty or impediment; as to facilitate the execution of a task.’ ” . The statute makes “possession of the prohibited article prima facie evidence of guilt.” Yee Hem v. United States, 1925, 268 U.S. 178, 185, 45 S.Ct. 470, 472, 69 L.Ed. 904. It “does not define the substantive offenses; it deals with their proof. It merely makes proof of possession presumptive evidence, prima facie, of the facts essential to make out a case.” Corollo v. Dutton, 5 Cir., 1933, 63 F.2d 7, 8. See also United States v. Brown, 7 Cir., 1953, 207 F.2d 310, 312; Velasquez v. United States, 10 Cir., 1957, 244 F.2d 416. . In its charge to the jury after specifying the elements of the offense and quoting the provision of § 174, relative to possession, the court said in part: “As I have stated, a defendant on trial may overcome inferences arising against him from actual or constructive possession of a narcotic drug by facts and circumstances and by satisfactory proof that in his case possession of narcotics did not involve a violation of the statute, either because the narcotics were not imported contrary to law or because he had no knowledge of unlawful importation. ***** “Any evidence which satisfies the jury that possession of a narcotic drug was innocent possession, constitutes a sufficient explanation under the statute. “Despite the fact that the indictment contains the allegations that the narcotic drug involved had been imported into the United States contrary to law, and that the defendants knew such to be the fact, nevertheless, the statute makes it unnecessary for the government to offer any evidence in support of the charge as to these elements if the government shows that the defendants were" }, { "docid": "23278516", "title": "", "text": "here, a statute creating an offense sets forth fully, directly, and expressly, all of the essential elements necessary to constitute the crime intended to be punished, it is sufficient if the indictment charges the offense in substantially the words of the statute. The precise point urged here was decided contrary to appellant’s contention in Pon Wing Quong v. United States, 9 Cir., 1940, 111 F.2d 751. See, also, Yip Wah v. United States, 9 Cir., 1925, 8 F.2d 478. The validity of the indictment being established, we proceed to consider the sufficiency of the evidence. Sufficiency of the Evidence The last paragraph of Section 174, Title 21 U.S.C.A., reads as follows: “Whenever on trial for a violation of this subdivision the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the pos session to the satisfaction of the jury.” It is the contention of appellant that the evidence is insufficient to sustain the judgment, inasmuch as it is claimed there is no proof that appellant ever had possession of the narcotics. But there is no charge that he ever had possession of the narcotics. Possession is not required for conviction of the offenses of which appellant was charged and convicted. The record reveals that Stafford paid money to appellant; that appellant then introduced him to a man and directed the man to deliver to Stafford the agreed upon quantity of heroin; that on another occasion after negotiating with appellant, Stafford paid him the agreed sum for heroin, whereupon two women appeared and actually handed appellant a package containing narcotics. In Mullaney v. United States, 9 Cir., 1936, 82 F.2d 638, 642, this court approved an instruction of the trial court that “ ‘possession of a thing means having in one’s control or under one’s dominion’ ”. It is not necessary that possession be immediate or exclusive. Mullaney v. United States, supra; Borgfeldt v. United States, 9 Cir., 1933, 67 F.2d 967. While it is true that Stafford’s reputation was not clean," }, { "docid": "21479163", "title": "", "text": "of the unlawful importation of any narcotic drugs; (b) absence of evidence of possession of heroin by appellant; and (c) absence of evidence of illegal importation of cocaine. (2) Prejudicial error in instructing the jury; (3) Appellant has been twice placed in jeopardy for the same offense; (4) Errors in the admission of evidence ; (5) Errors in certain rulings and actions of the District Court; (6) Appellant was deprived of a fair trial by prejudicial misconduct of government counsel during the course of the trial and in his argument to the jury; and (7) Title 21 U.S.C. § 174 is unconstitutional. 21 U.S.C. § 174, makes it a Federal offense to import narcotic drugs il legally or to deal with such drugs knowing that the same have been illegally imported. Under the second paragraph of Section 174, the proof of possession of a narcotic drug by defendant shifts to him the burden of explaining such possession to the satisfaction of the jury. In the absence of such satisfactory explanation, the application of the statutory rule of evidence or prima facie presumption set forth in Section 174 shall be deemed sufficient to authorize conviction. In such circumstances the statutory rule of evidence or prima facie presumption furnishes sufficient proof to establish the illegal importation of the narcotic drug, and the defendant’s knowledge that the narcotic drug was illegally imported. Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925); Erwing v. United States, 323 F.2d 674 (9th Cir. 1963); United States v. Jones, 308 F.2d 26 (2nd Cir. 1962); Hernandez v. United States, 300 F.2d 114 (9th Cir. 1962); Cellino v. United States, 276 F.2d 941 (9th Cir. 1960); Caudillo v. United States, 253 F.2d 513 (9th Cir. 1952), C.D. Romero v. United States, 357 U.S. 931, 78 S.Ct. 1375, 2 L.Ed.2d 1373. The term “possession” is not further defined in the section. It has not been narrowly construed by the courts. The term has been construed by the courts to embrace power to control the disposition of the drugs as well as mere physical" }, { "docid": "23036354", "title": "", "text": "conspiracies to commit such offenses. Id. 229 F.2d at 748 n. 7. . Hill v. United States, 42 F.2d 812, 814 (4th Cir. 1930). See Huff v. United States, 273 F.2d 56, 59 (5th Cir. 1959); Babb v. United States, 218 F.2d 538, 539-540 (5th Cir. 1955) (dictum); Hill v. United States, 42 F.2d 812, 813-814 (4th Cir. 1930); Musey v. United States, 37 F.2d 673, 674 (5th Cir. 1930). . The sentence on Count Three was five-years imprisonment, the minimum which the court was permitted by law to impose. 21 U.S.C.A. § 176a. Compare United States v. Hines, 256 F.2d 561 (2d Cir. 1958). . 369 U.S. at 764, 82 S.Ct. at 1047, . Ibid. . Id. at 766, 82 S.Ct. at 1048. . Caudillo v. United States, 253 F.2d 513 (9th Cir. 1958). As we there said, “this Court knows of no medical or scientific use to be made of marihuana, save perhaps for occasional testing * * Id. at 517. . United States v. Davis, 272 F.2d 149, 150-151 (7th Cir. 1959) (marihuana); Pon Wing Quong v. United States, 111 F.2d 751, 754-755 (9th Cir. 1940) (opium); Hood v. United States, 78 F. 2d 150 (10th Cir. 1935) (opium derivative); Wong Lung Sing v. United States, 3 F.2d 780, 781 (9th Cir. 1925) (opium). See also Brown v. United States, 222 F. 2d 293 (9th Cir. 1955) (heroin); Rodriguez v. United States, 218 F.2d 810 (5th Cir. 1955) (narcotic drug); United States v. Rodgers, 218 F.2d 536 (5th Cir. 1955) (heroin); Miller v. United States, 300 F. 529, 533 (6th Cir. 1924) (intoxicating liquor). But see Current v. United States, 287 F.2d 268, 269 (9th Cir. 1961) (marihuana) (dictum). Appellant argues that the cases relating to opium depend upon the premise that the importation of opium was wholly forbidden by statute. Language in early opinions lends support to this view. However, as we have noted, opium may be imported legally (Caudillo v. United States, 253 F.2d 513, 517 (9th Cir. 1958); Hernandez v. United States, 300 F.2d 114, 118 n. 11 (9th Cir. 1962)), and in any" }, { "docid": "14256743", "title": "", "text": "that the substance involved in this case is a narcotic drug as defined in the Statute. (See Footnote 3). For purposes of our opinion, we will assume that the evidence is sufficient to establish possession by the appellant of the cocaine hydrochloride. It is to be noted that mere possession of a narcotic drug is not an offense under the Statute. United States v. Brown, 207 F.2d 310 (7 Cir., 1953); Rodella v. United States, 286 F.2d 306 (9 Cir., 1960), C.D. 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199. Illegal possessions of a narcotic drug is a criminal offense under the laws of the State of California. §§ 11500 and 11712 Health and Safety Code of the State of California. Under the second paragraph of Section 174, quoted supra, the proof of possession of a narcotic drug by defendant shifts to him the burden of explaining such possession to the satisfaction of the jury. In the absence of such satisfactory explanation, the application of the statutory rule of evidence or prima facie presumption set forth in Section 174 shall be deemed sufficient to authorize conviction. In such circumstances the statutory rule of evidence or prima facie presumption furnishes sufficient proof to establish the illegal importation of the narcotic drug and the defendant’s knowledge that the narcotic drug was illegally imported. Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925); Hernandez v. United States, 300 F.2d 114 (9 Cir., 1962); Cellino v. United States, 276 F.2d 941 (9 Cir., 1960); Caudillo v. United States, 253 F.2d 513 (9 Cir., 1952), C.D. 857 U.S. 931, 79 S.Ct. 1375, 2 L.Ed.2d 1373. The authority of Congress to prohibit importation of narcotic drugs, and as a measure reasonably calculated to aid in the enforcement of the prohibition to make its possession and concealment with knowledge of its unlawful importation a criminal offense, has long been established. See Yee Hem v. United States supra, in which smoking opium was the prohibited article. The question presented to the court in that case was whether the Congress had the" }, { "docid": "9507330", "title": "", "text": "a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is necessary.’ * * * ”. Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 302, 71 L.Ed. 545 (1927). Wong Tai is the leading case on the sufficiency of conspiracy indictments. Like the present appeal, it involved a conspiracy to traffic in narcotics; the indictment was sustained against an attack of vagueness. We have followed the rule enunciated in Wong Tai in many cases. Schino v. United States, 9 Cir., 1954, 209 F.2d 67; cert. denied 347 U.S. 937, 74 S.Ct. 627, 98 L.Ed. 1087 (1954); Steiner v. United States, 9 Cir., 1956, 229 F.2d 745; cert. denied 351 U.S. 953, 76 S.Ct. 845, 100 L.Ed. 1476; rehearing denied 352 U.S. 860, 77 S.Ct. 24, 1 L.Ed.2d 70 (1960); Medrano v. United States, 9 Cir., 1961, 285 F.2d 23; cert. denied 366 U.S. 968, 81 S.Ct. 1931, 6 L.Ed.2d 1258; rehearing denied 368 U.S. 872, 82 S.Ct. 64, 7 L.Ed.2d 73 (1961); Williamson v. United States, 9 Cir., 1962, 310 F.2d 192. In Steiner, the substantive counts, as well as the conspiracy count, charged the illegal importation of psittacine birds in violation of 18 U.S.C.A. § 545 with knowledge that such importation was contrary to law. Each count “failed to state what law (other than 18 U.S.C.A. § 545) the importation mentioned therein was contrary to, or in what respect such importations were contrary to such law.” 229 F.2d 747. The court set aside the convictions on all substantive counts on the ground that they failed to charge offenses against the United States, but affirmed the conviction on the conspiracy count on the authority of Wong Tai. In Medrano, the count alleging conspiracy to violate 21 U.S.C.A. § 174 was less specific than Count I in the present case and likewise failed to allege knowledge of the unlawful importation of heroin. We sustained validity on the ground that: “The sufficiency of an indictment is to be determined on the basis of practical rather than technical considerations, and it" }, { "docid": "17834478", "title": "", "text": "denied 311 U.S. 681, 61 S.Ct. 62, 85 L.Ed. 439; Moore v. Aderhold, 10 Cir., 108 F.2d 729; United States v. Schneiderman, (S.D.Cal.) 104 F.Supp. 405, 409. In Velasquez v. United States, 10 Cir., 244 F.2d 416, 418, in considering the constitutionality of Section 2(c) of the Narcotic Drugs Import and Export Act, we said: “Another ground of the motion for a directed verdict of acquittal upon the charge contained in the first count of the indictment was that the provision in the statute making proof of possession of a narcotic drug sufficient evidence to warrant conviction unless the defendant explains such possession to the satisfaction of the jury is unconstitutional. The contention does not call for extended discussion. It is enough to say without laboring the question that the constitutional validity of the provision in the statute has consistently withstood like challenge. Yee Hem v. United States, supra [268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904]; Dear Check Quong v. United States, supra [82 U.S.App.D.C. 8, 160 F.2d 251]; Stein v. United States, 9 Cir., 166 F.2d 851, certiorari denied 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768.” This conclusion was reaffirmed in Griego v. United States, 10 Cir., 298 F.2d 845. We find no prejudicial error in the record. Affirmed. . Title 21 U.S.C.A. § 174 reads in part: “Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000.” . The second paragraph of 21 U.S.C.A. § 174 provides: “Whenever on trial for a violation of this section the defendant" }, { "docid": "2904785", "title": "", "text": "or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.” Therefore, although section 174 makes knowledge of illegal importation a substantive element of the offense, the last- quoted provision virtually eliminates the need to prove this element directly. Of course a defendant has the right to challenge the possession inference by showing that the heroin was not imported. In Turner v. United States, 396 U. S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), the scheme of section 174 was upheld with respect to heroin and rejected with respect to cocaine. When charging the jury originally the trial court failed to include any reference to the presumption provision of section 174. The reason is unclear. The government did not request a charge based on this presumption. Without this instruction the jury, of necessity, was left to struggle with the question whether the government had proved beyond a reasonable doubt that defendant knew the heroin he possessed was illegally imported. Apparently the jurors were facing this kind of difficulty for they returned a question to the judge after the first charge: “The jury does not fully understand the part of the indictment which states ‘knowing that the said narcotic drug had theretofore been imported and brought into the United States contrary to law.’ ” At this point the Turner case was brought to the attention of the court. On reading that case, the court concluded it should charge the jury that unexplained possession sufficed for conviction as section 174 provides. The jury was still having difficulties after this charge. They again returned to inform the court that no unanimous verdict could be agreed upon. The court instructed the jury to return for further deliberations. In doing so, the judge reiterated several points from his previous charge, including the knowledge element of section 174. The judge did not, however, repeat the point that, under the statute, unexplained possession sufficed to convict. After these events the jury propounded the following question to" }, { "docid": "21478753", "title": "", "text": "accord only the narrowest stare decisis adherence to Lauer, stating that “Our decision in Lauer should be limited strictly to indictments brought under Title 26, § 4705(a)”. Thus, application of the Lauer holding was refused to be made in Powell to a charge of unlawful sale under 26 U.S.C. § 4704(a), and in United States v. Holmes, 340 F.2d 23, 24 (7 Cir. 1964) to a charge of unlawful sale under 21 U.S.C. § 174. Our decisions have applied the same rule to all three of these statutes. The second sentence attacked involved a charge of unlawfully receiving and concealing heroin in violation of 21 U.S.C. § 174. Section 174 constitutes as an offense a receiving or concealing on the part of anyone of “any * * * narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law”. Here, the information had charged that appellant “did unlawfully, wilfully, knowingly and feloniously receive and conceal * * * 123 grains * * * of heroin hydrochloride, after said heroin hydrochloride had been imported and brought into the United States contrary to the laws of the United States; In violation of Section 174, Title 21, United States Code”. The contention made is that the failure of the information to include the language of the statute, “knowing the same to have been imported or brought into the United States contrary to law”, or otherwise to expressly allege that appellant had knowledge that the heroin had been unlawfully imported, caused it to be fatally defective so as not to charge an offense and hence not to be capable of affording the basis for a conviction. United States v. Calhoun, 257 F.2d 673 (7 Cir. 1958) and Robinson v. United States, 263 F.2d 911 (10 Cir. 1959) support appellant’s contention. Stein v. United States, 313 F.2d 518, 521 (9 Cir. 1962) however, has disagreed with the view of those cases. And Palomino v. United States, 318 F.2d 613 (9 Cir. 1963) has made reiteration of the Ninth Circuit’s refusal to follow" }, { "docid": "23278515", "title": "", "text": "but also that defendant then and there well knew that said heroin was imported into the United States contrary to law. Appellant makes the further argument that since each of the various acts proscribed by Title 21 U.S.C.A. § 174 constitutes a separate offense, Counts Three, Four, and Five are defective inasmuch as each states more than one offense, viz.: Count Three charges that appellant and another did knowingly and unlawfully: “sell * * * and knowingly assist in so doing,” a certain drug; Count Four charges appellant did knowingly and unlawfully: “receive, conceal, and facilitate the transportation of, a certain narcotic drug,” and Count Five charges that appellant and another did knowingly and unlawfully : “receive, conceal, and facilitate the transportation of, a certain narcotic drug, * * * and knowingly assist in so doing * * It is true, as appellant urges, that offenses created by statute as well as offenses at common law, must be described in such detail that the accused is informed of the charge against him. But where, as here, a statute creating an offense sets forth fully, directly, and expressly, all of the essential elements necessary to constitute the crime intended to be punished, it is sufficient if the indictment charges the offense in substantially the words of the statute. The precise point urged here was decided contrary to appellant’s contention in Pon Wing Quong v. United States, 9 Cir., 1940, 111 F.2d 751. See, also, Yip Wah v. United States, 9 Cir., 1925, 8 F.2d 478. The validity of the indictment being established, we proceed to consider the sufficiency of the evidence. Sufficiency of the Evidence The last paragraph of Section 174, Title 21 U.S.C.A., reads as follows: “Whenever on trial for a violation of this subdivision the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the pos session to the satisfaction of the jury.” It is the contention of appellant that the evidence is insufficient to sustain the judgment, inasmuch as" }, { "docid": "12150949", "title": "", "text": "The district court charged the jury in accordance with these principles. Appellant, however, contends that the evidence does not justify application of the statutory presumption in his case because Cornelius had actual possession of the heroin at the time of arrest and also because Cornelius testified that his companion knew nothing about the heroin. Considering the case most favorably to the Government, as we must, we find that Garza’s history and conduct, as well as the presence in his automobile of items related to the use of narcotics, constitute a sufficient evidentiary basis for a finding of possession. Even without benefit of the statutory presumption of possession, there was sufficient evidence for the jury to find that appellant knowingly facilitated the transportation and concealment of illegally imported heroin. See Mendoza v. United States, 5th Cir. 1966, 365 F.2d 268. From the facts of the case, especially from appellant’s tactic of driving outside of Roma and then returning to the river, the jury could have inferred that he knew heroin was being illegally imported and that he knowingly facilitated its transportation and concealment. Moreover, the evidence justifying conviction on this ground would also justify conviction under the aider and abettor statute, 18 U.S.C. § 2. The jury was so charged. No contentions other than sufficiency of evidence having been raised, we accordingly Affirm. . The first paragraph of 21 U.S.C. § 174 deseribos the offense: Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, * * *. [penalties] The second and final paragraph discusses the possession presumption: Whenever on trial for a violation of this section the defendant is shown to have or to have had" }, { "docid": "3607554", "title": "", "text": "v. United States, 413 F.2d 297 (9th Cir. 1969). “Until (and unless) the Supreme Court holds otherwise, we shall adhere to the prior decisions of this court which have held the presumption concerning knowledge of illegal importation of narcotic drugs contained in § 174 is constitutional.” Jordan v. United States, 416 F.2d 338 (9th Cir. 1969). “In our view Leary v. United States, 395 U.S. 6 [89 S.Ct. 1532, 23 L.Ed.2d 57] (1969), a marihuana case, * * * is here of no importance. By express language, it excluded heroin from its impact. Consequently, Yee Hem v. United States, 268 U.S. 178 [45 S.Ct. 470, 69 L.Ed. 904] (1925), must guide our action on the § 174 counts.” Gonzalez Ramirez v. United States, 419 F.2d 1330, Nov. 21, 1969, 9th Cir.). (c) That the provision of 21 U.S.C. § 174 forces an accused to testify and constitutes in effect a comment upon his failure if he does not. Such a contention was authoritatively rejected by Yee Hem, supra, 268 U.S. at p. 185, 45 S.Ct. 470. See also United States v. Gainey, 380 U.S. 63, 70, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). (d) That the indictment as to Counts 1, 2, 3, 5, 6, 8 and 9 was fatally defective because it simply charged in the language of section 174 that the narcotics were imported “contrary to law” without specifying the law or laws. This circuit has repeatedly rejected such a contention: Wong Lung Sing v. United States, 3 F.2d 780 (9th Cir. 1925) ; Pon Wing Quong v. United States, 111 F.2d 751 (9th Cir. 1940) ; Tenorio v. United States, 390 F.2d 96 (9th Cir. 1968). (e) That 21 U.S.C. § 174 requires an accused to incriminate himself because to constitute the importation legal and hence not “contrary to law” he must declare the drug at the border and thus risk prosecution by the state where entry is made. Chisum’s proposition suggests only “ * * * ‘imaginary and insubstantial’ hazards of incrimination, rather than the ‘real and appreciable’ risks needed to support Fifth Amendment Claim.” Minor" }, { "docid": "3607555", "title": "", "text": "470. See also United States v. Gainey, 380 U.S. 63, 70, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). (d) That the indictment as to Counts 1, 2, 3, 5, 6, 8 and 9 was fatally defective because it simply charged in the language of section 174 that the narcotics were imported “contrary to law” without specifying the law or laws. This circuit has repeatedly rejected such a contention: Wong Lung Sing v. United States, 3 F.2d 780 (9th Cir. 1925) ; Pon Wing Quong v. United States, 111 F.2d 751 (9th Cir. 1940) ; Tenorio v. United States, 390 F.2d 96 (9th Cir. 1968). (e) That 21 U.S.C. § 174 requires an accused to incriminate himself because to constitute the importation legal and hence not “contrary to law” he must declare the drug at the border and thus risk prosecution by the state where entry is made. Chisum’s proposition suggests only “ * * * ‘imaginary and insubstantial’ hazards of incrimination, rather than the ‘real and appreciable’ risks needed to support Fifth Amendment Claim.” Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (Dec. 8, 1969). His argument assumes, erroneously, that narcotic drugs can be legally imported into this country if declared at the border. But 21 U.S.C. § 173 makes importation of all narcotics illegal, and provides for seizure and summary forfeiture at the border. It is difficult for us to understand how a border declaration could serve to incriminate the would-be importer. (f) That 26 U.S.C. § 4705(a), which makes unlawful the transfer of heroin unless pursuant to a written order on an official order form, secured by a registered dealer from the Secretary, violates the transferor’s Fifth Amendment right against self incrimination because the form, when completed as required by the statute, contains incriminating information, must be kept available for inspection by law enforcement officers and a copy filed with the Secretary. Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, Dec. 8, 1969, considered and rejected this identical proposition. (g) That because heroin was declared contraband in 1956 by the amendment" }, { "docid": "7825709", "title": "", "text": "agents observed a transaction between the informer and Perea at the rear of a carport which was situated at the side of the house. The informer, again closely followed by the agents, returned to the previous meeting place where the agents repeated their search and took custody of a tinfoil package. The five $20-bills were not found. Upon analysis, the substance contained therein was found to be heroin. Perea was not arrested until two months later because the informer was being used to aid in other narcotics investigations. Initially, Perea attacks the jurisdiction of the trial court, arguing that under 21 U.S.C. § 174 illegal importation of the heroin was a jurisdictional fact, proof of which was a prerequisite to the vesting of jurisdiction in the trial court. Without a preliminary showing of subject matter jurisdiction over the offense charged, it is contended, the trial court was powerless to proceed with the trial. 18 U.S.C. § 3231 lodges original jurisdiction of all offenses against the United States in the district courts. Authority for the bifurcated method of proceeding contended for does not exist. The indictment charged offenses against the United States in language similar to that of the statutes. Subject matter jurisdiction was vested in the district court upon the filing of the indictment. Young v. United States, 10 Cir., 354 F. 2d 449, cert. denied, 384 U.S. 912, 86 S. Ct. 1355, 16 L.Ed.2d 364; cf. Mosher v. City of Phoenix, 287 U.S. 29, 53 S.Ct. 67, 77 L.Ed. 148; Thompson v. Terminal Shares, Inc., 8 Cir., 89 F.2d 652, cert. denied sub nom. Guaranty Trust Co. v. Thompson, 302 U.S. 735, 58 S.Ct. 121, 82 L.Ed. 568; 22 C.J.S. Criminal Law § 143. Appellant next attacks the constitutionality of the “presumption” relating to the unexplained possession of narcotics created by 21 U.S.C. § 174. The argument is that subsequent to the enactment of § 174, Congress legalized under certain regulated conditions the domestic production of opium (21 U.S.C. §§ 188-188n), thereby rendering the inference of knowledge of illegal importation from possession alone obsolete. But Congress expressly provided that" }, { "docid": "23243940", "title": "", "text": "with the narcotics. In ten or fifteen minutes Bruno did return and, in the presence of Ulrey and appellant, handed Velasquez six small white packets containing heroin. Under these facts appellant clearly “facilitated” the sale by Bruno. The primary question on this appeal is whether the United States may rely upon the statutory presumption arising from possession to establish that the heroin was imported contrary to law and that appellant knew that it was so imported. Possession is not an element of the offense charged. Rather, proof of possession in “the defendant” is deemed sufficient evidence to authorize conviction in the absence of satisfactory explanation. In other words, proof of possession avoids the necessity of proving both illegal importation and the defendant’s knowledge thereof. But under the ex press provision of § 174 “the defendant” must be shown “to have or have had possession.” It is not disputed that Bruno had possession of the narcotics. Appellant contends, however, that there is no evidence that he ever had possession, and that the Government may not rely upon possession in Bruno to prove illegal importation or knowledge thereof as to appellant, since the presumption arises only where “the defendant is shown to have or to have had possession of the narcotics drug.” Title 18 U.S.C. § 2 reads: “Whoever commits an offense against- the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.” The Government contends that the possession required by § 174 need “not be that of the person convicted” and that upon proof that the appellant “facilitated” or “aided and abetted” in the sale, possession in his co-defendant Bruno was then sufficient to make the presumption effective against appellant. The Government relies primarily upon United States v. Cohen, 2 Cir., 1941, 124 F.2d 164, 165, certiorari denied Bernstein v. United States, 315 U.S. 811, 62 S.Ct. 796, 86 L.Ed. 1210, where the court said: “Under the first statute we have quoted (21 U.S.C. § 174) it was only necessary to show possession of the narcotics to establish guilt and under the second statute (18" }, { "docid": "21479164", "title": "", "text": "rule of evidence or prima facie presumption set forth in Section 174 shall be deemed sufficient to authorize conviction. In such circumstances the statutory rule of evidence or prima facie presumption furnishes sufficient proof to establish the illegal importation of the narcotic drug, and the defendant’s knowledge that the narcotic drug was illegally imported. Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925); Erwing v. United States, 323 F.2d 674 (9th Cir. 1963); United States v. Jones, 308 F.2d 26 (2nd Cir. 1962); Hernandez v. United States, 300 F.2d 114 (9th Cir. 1962); Cellino v. United States, 276 F.2d 941 (9th Cir. 1960); Caudillo v. United States, 253 F.2d 513 (9th Cir. 1952), C.D. Romero v. United States, 357 U.S. 931, 78 S.Ct. 1375, 2 L.Ed.2d 1373. The term “possession” is not further defined in the section. It has not been narrowly construed by the courts. The term has been construed by the courts to embrace power to control the disposition of the drugs as well as mere physical custody. As stated in Hernandez v. United States, supra, 300 F.2d at pp. 116-117: “We early held that ‘possession’ of narcotic drugs sufficient to support the inference of guilt under the statute meant ‘having [the narcotic drugs] in one’s control or under one’s dominion.’ Mullaney v. United States, 82 F.2d 638, 642 (9th Cir. 1936), and we have recently reexamined and re-affirmed this basic position. Rodella v. United States, 286 F.2d 306 (9th Cir. 1960), cert. denied 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199. As the Rodella opinion and the authorities which it cites amply demonstrate, it follows from this definition of ‘possession’ in Section 174 that so long as the evidence establishes the requisite power in the defendant to control the narcotic drugs, it is immaterial that they may not be within the defendant’s immediate physical custody, or, indeed, that they may be physically in the hands of third persons — ’‘possession’ as used in this statute includes both actual and constructive possession. The power to control an object may be shared" }, { "docid": "22885863", "title": "", "text": "85 S.Ct. 754, 13 L.Ed.2d 658 (1965), and United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965), interpreting other statutes providing for similar inferences. . An explanation of possession “to the satisfaction of the jury,” as those words are used in the second paragraph of § 174, means any evidence, direct or circumstantial, which is sufficient to satisfy the jury that despite evidence of possession by the defendant the. government has failed to meet its burden of proof. Such a failure of proof may occur, despite proof of possession, with respect to any one of the essential elements of the § 174 offense. In United States v. Llanes, 374 F.2d 712, 715 (2d Cir. 1967), Judge Friendly offers examples of exculpatory evidence with respect to each of the elements of the offense except that of illegal importation. A possible basis for evidence negating this clement of the offense is afforded by the provision of 21 U.S.C. § 513 authorizing importation “of any narcotic drug or drugs” for scientific purposes. Cf. Erwing v. United States, 323 F.2d 674 (9th Cir. 1963). Llanes, as well as Chavez v. United States, 343 F.2d 85, 90 (9th Cir. 1965), and Griego v. United States, 298 F.2d 845, 848 (10th Cir. 1962), hold that testimony that the defendant did not know that the drugs found in his possession were illegally imported requires submission of the issue of knowledge of unlawful importation to the jury for determination under the standard of reasonable doubt. Cf. United States v. Christmann, 298 F.2d 651, 653 (2d Cir. 1962), which holds that the defendant’s testimony that she thought the package which she illegally imported contained “essence of perfume” rather than heroin, made satisfaction of the requirement that the physical act specified in the statute be done “knowingly” an issue of fact for the jury. . Turner points out that he moved for judgment of acquittal under rule 29(a), Fed.R.Crim.P., at the close of the government’s case, and contends that testimony subsequently introduced as part of his own case should not be considered in reviewing the" }, { "docid": "14771772", "title": "", "text": "his failure to take the stand in violation of the Fifth Amendment. This court has previously held to the contrary. Brown v. United States, 370 F.2d 874, 876 (9 Cir. 1966). The appellant contends that the phrase “to the satisfaction of the jury” is so vague that the defendant cannot know what burden he has; in addition, he contends that this standard merely leaves the sufficiency of the explained possession to the subjective determination of the jury rather than the objective reasonable doubt standard. This contention is also without merit. There are four elements of the crime charged in § 174 which must be proven beyond a reasonable doubt in order to convict a person charged thereunder. Verdugo v. United States, 402 F.2d 599, 603 (9 Cir. 1968): “The first paragraph of section 174 creates an offense having the following elements: (1) participation in a transaction involving narcotic drugs in any one of the ways specified in the statute (importation, receipt, concealment, purchase, etc.); (2) commission of this physical act “fraudulently or knowingly”; (3) illegal importation of the narcotic drug; and (4) knowledge of the illegal importation.” Also United States v. Llanes, 374 F.2d 712, 715 (2 Cir. 1967). A defendant in a § 174 prosecution is not required to prove the lawfulness of his possession in order to overcome the presumption. United States v. Peeples, 377 F.2d 205, 210 (2 Cir. 1967). The presumption is rebutted if he presents evidence which raises reasonable doubt as to the existence of any one of the required elements. Chavez v. United States, 343 F.2d 85, 89 (9 Cir. 1965). Therefore, a person charged with violation of 21 U.S.C. § 174 does not face a statute containing a “vague” requirement; just as any other individual accused of a crime, he must be proven guilty beyond a reasonable doubt. Appellant next contends that he is denied equal protection of the law since he is required to prove his innocence while other defendants charged with different crimes go free if reasonable doubt exists as to their guilt. As discussed above, a defendant in a §" } ]

[ { "docid": "3050835", "title": "", "text": "that the district court erred in overruling his motion for mistrial based on comments of the trial court. In a criminal trial, the trial judge is permitted to ask questions of witnesses in an attempt to clarify testimony and to elicit necessary facts. See United States v. Gleason, 766 F.2d 1239, 1243 (8th Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 801, 88 L.Ed.2d 777 (1986). The role of a trial judge is more than a “mere moderator” of the trial, and it includes the prerogative, and sometimes the duty, to elicit facts deemed necessary to a clear presentation of the issues. Id. The court must take care, however, to preserve “an attitude of impartiality and [to guard] against giving the jury an impression that the court believes the defendant is guilty.” Id. (quoting Llach v. United States, 739 F.2d 1322, 1329-30 (8th Cir.1985)) (other quotations omitted). “We have always been reluctant to disturb a judgment of conviction by reason of a few isolated, allegedly prejudicial comments of a trial judge, particularly in a long trial.” United States v. Leuth, 807 F.2d 719, 727 (8th Cir.1986) (citing United States v. Bland, 697 F.2d 262, 265 (8th Cir.1983)). When faced with a claim that a trial judge’s prejudicial comments prevented a fair trial, this court will “balance and weigh the comments of the judge against the overall fairness of the trial ... [and conclude that] the balance is adversely tipped against the defendant in a criminal trial where the judge’s role loses its color of neutrality and tends to accentuate and emphasize the prosecution’s case.” Leuth at 727. United States v. Van Dyke, 14 F.3d 415, 417-18 (8th Cir.1994) (alteration in original). Scott’s assertion of trial court misconduct stems from the combination of three incidents. In one instance, while cross-examining Wilkey, Scott’s counsel incorrectly stated that he (counsel) was not getting paid. The trial court later told the jury that defense counsel’s comment was “an inappropriate remark” because, in fact, defense counsel was being compensated under the Criminal Justice Act. (Trial Tr. at 179-80.) In the second instance, while the government" } ]

[ { "docid": "1169899", "title": "", "text": "the district court’s finding that probable cause existed to search Lueth’s and McCarthy’s residences is not clearly erroneous. Henry, 763 F.2d at 331. II. Amel Lueth argues that the trial judge improperly abandoned his neutral and impartial role and injected himself into the trial on behalf of the prosecution. Specifically, he points to ten separate occasions, over the course of the four-week trial, where he claims the trial judge aided and counseled the government’s attorney in the presentation of his case, thus giving the jury “the impression of onesidedness,” U.S. v. Ellis, 747 F.2d 1205, 1208 n. 2, (8th Cir.1984), and warranting reversal and a new trial. We have always been reluctant to disturb a judgment of conviction “by reason of a few isolated, allegedly prejudicial comments of a trial judge,” United States v. Bland, 697 F.2d 262, 265 (8th Cir.1983), particularly in a long trial. Id. Our task is to balance and weigh the comments of the judge against the overall fairness of the trial. United States v. Singer, 710 F.2d 431, 436 (8th Cir.1983); Bland, 697 F.2d at 265. “[T]he balance is adversely tipped against the defendant in a criminal trial where the judge’s role loses its color of neutrality and tends to accentuate and emphasize the prosecution’s case.” Bland, 697 F.2d at 265. We need not detail each statement by the trial judge that Lueth claims was improper. Of the ten, seven were made outside the jury’s presence. Our cases addressing impartiality of trial judge conduct stress the importance of the jury’s perception that the judge is favoring the prosecution or believes the defendant to be guilty. See United States v. Holmes, 794 F.2d 345, 349 (8th Cir.1986) (sidebar conference regarding government’s burden of proof did not give impression of partiality to the jury); Singer, 710 F.2d at 436 (impermissible effects of trial judge’s conduct were to (1) cast prosecutor in role of underdog “in the eyes of the jury,” and (2) to “suggest to the jury” that the judge favored the government’s position); Bland, 697 F.2d at 265-66 (“A judge’s slightest indication that he favors the" }, { "docid": "21569901", "title": "", "text": "and in his roles as a bank officer and trustee. The trial judge declined to rule on evidentiary motions.before the issues came up at trial, and also informed counsel at the outset that he would not allow sidebar conferences. Analysis We need not address each issue raised in this appeal, because we agree that Mr. Van Dyke’s trial was prejudiced by several errors on the part of the district court — most notably its intervention in questioning and commenting on witness’ testimony. ‘We have always been reluctant to disturb a judgment of conviction by reason of a few isolated, allegedly prejudicial comments of a trial judge, particularly in a long trial.” United States v. Leuth, 807 F.2d 719, 727 (8th Cir.1986) (citing United States v. Bland, 697 F.2d 262, 265 (8th Cir.1983)). When faced with a claim that a trial judge’s prejudicial comments prevented a fair trial, this court will “balance and weigh the comments of the judge against the overall fairness of the trial ... [and conclude that] the balance is adversely tipped against the defen dant in a criminal trial where the judge’s role loses its color of neutrality and tends to accentuate and emphasize the prosecution’s case.” Leuth at 727. In this case, we conclude that the district court’s comments throughout the trial were sufficiently one-sided and distractive to defendant’s case to deprive him of a fair trial. We will not set forth every statement which appellant claims is improper, in part because taken in isolation most of the trial judge’s comments would not justify reversal. However, it is necessary to point out some of the most colorful and damaging statements. First, the trial judge repeatedly interrupted defendant’s testimony, often taking on an impeaching air and/or bolstering the prosecution’s case. Early on in defendant’s testimony, while background was being laid out, the trial judge responded to an objection by saying “I sort of drifted away. What was the question?” Tr. 1915. Such a statement could have given the jury an early impression (even if incorrect) that the trial judge was not interested in what Mr. Van Dyke" }, { "docid": "6814815", "title": "", "text": "jury. At trial Flying Hawk first testified that she could not remember if she saw Dreamer standing outside Al, Sr.’s house shortly after it caught fire. Flying Hawk then admitted that she testified at a previous grand jury hearing that she saw Dreamer standing outside the house shortly after it caught fire. Later, Flying Hawk testified that she did not see anyone standing outside the house shortly after it caught fire. Flying Hawk also stated that she “kind of made up a story” when she testified under oath before the grand jury. Shortly after Flying Hawk’s comment that she “kind of made up a story,” Dreamer’s attorney asked the district judge to advise Flying Hawk that she might be committing the crime of perjury. The district judge advised Flying Hawk about the crime of perjury and the penalties for committing perjury. After the judge advised Flying Hawk, the following exchange took place between the judge and Flying Hawk: FLYING HAWK: My first statement was true. THE COURT: Which first statement. FLYING HAWK: The one I gave to Lyle Brings Him Back. THE COURT: The one you gave to Lyle Brings Him Back. FLYING HAWK: That was the very first statement. THE COURT: So the statement you gave before the grand jury was false. FLYING HAWK: They were true. THE COURT: Very well. Anything further? Dreamer now objects to this exchange, arguing that the district judge became an advocate for the government. A district judge may ask questions to clarify the testimony of a witness in order to avoid any misunderstanding of the testimony by the jury. See United States v. Cooper, 596 F.2d 327, 380 (8th Cir.1979). The district judge’s questions, however, may not become so one-sided against the defendant as to deprive him of a fair trial. United States v. Van Dyke, 14 F.3d 415, 417-18 (8th Cir.1994). The district judge’s questions were an attempt to clarify the confusing and contradictory testimony of Flying Hawk. The judge simply attempted to determine which of Flying Hawk’s contradictory statements was the truth. When Flying Hawk refused to say which one was" }, { "docid": "21569910", "title": "", "text": "objection and instruct the jury to disregard it. We’re not going to sit here and speculate. What he knows, I’ll take. Tr. 1958. Athough exclusion of this testimony might have been appropriate in itself, the trial judge’s comments here reinforce what could very well have been a growing perception by the jury that he was not looking favorably at the defendant’s testimony in particular or his ease in general. In United States v. Jerde, 841 F.2d 818 (8th Cir.1988), we summarized this Circuit’s position on a trial judge’s intervention as follows: The trial court has a duty to make the interrogation of witnesses and the presentation of evidence effective for the ascertainment of truth.... In doing so, the trial court is permitted to interrogate witnesses, ... particularly when it deems the questioning necessary to clarify testimony. and to elicit necessary facts.... The trial court’s intervention should not be so extensive as to destroy the overall fairness of the trial, however. Unfairness to the defendant can result where the trial court loses its color of neutrality and tends to accentuate and emphasize the prosecution’s case.... Athough the trial court may interject isolated questions to clarify ambiguities, it cannot assume the mantle of an advocate and take over the cross-examination for the government to merely emphasize the government’s proof or to question the credibility of the defendant. Id. at 823 (citations omitted). In this instance, we find that the trial court did “assume the mantle” of an advocate — or at least very probably gave the jury the impression that he had done so. Viewing defendant’s testimony as a whole, we find that the district court could very well have passed along a perception to the jury that he favored or felt compelled to assist the prosecutors, and that the charges were indefensible. One final aspect of the district court’s intervention during defendant’s testimony that warrants mention is its refusal to admit a letter written by defendant to Mr. Meine. As noted above, part of the charges against defendant involved an $82,200 loan to the family trust that was allegedly misappropriated, and" }, { "docid": "21548302", "title": "", "text": "favored the prosecution, resulting in the deprivation of appellant’s right to a fair trial. Since defense counsel did not object to the court’s interjections at trial, this court must review the alleged error under the plain error doctrine and in terms of whether such participation by the trial court affected substantial rights of the appellant. See Fed.R.Crim.P. 52(b). As this court has stated, A trial judge is more than a “mere moderator” of a trial * * *. [The trial judge] has the prerogative, and at times the duty, of eliciting facts he deems necessary to the clear presentation of the issues. To this end he may examine witnesses who testify, so long as he preserves an attitude of impartiality and guards against giving the jury an impression that the court believes the defendant is guilty. United States v. Gleason, 766 F.2d 1239, 1243 (8th Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 801, 88 L.Ed.2d 777 (1986), (quoting Llach v. United States, 739 F.2d 1322, 1329-30 (8th Cir.1984)). After a thorough examination of the record we conclude that the trial judge’s questioning neither lacked the color of neutrality nor improperly emphasized the prosecution’s case. See United States v. Bland, 697 F.2d 262, 265-66 (8th Cir.1983). The record reflects that the trial judge’s questions were made for the purpose of clarifying ambiguous testimony and that no prejudice resulted. We also find that the trial court’s comment after the verdict regarding the final witness’ “flagrant perjury” does not warrant reversal. Because the remark was made after the verdict, it cannot be deemed prejudicial. While such comments could indirectly reveal the judge’s feelings throughout the trial, see United States v. Bland, supra, 697 F.2d at 266, such is not the case here where the judge’s comments went to the last witness presented. Any attitude which the judge adopted at this point in the case is not properly attributed to questions he raised earlier in the trial. V. We also reject appellant’s argument that the district court improperly admitted into evidence two audio cassette tapes which had been seized from appellant’s residence following" }, { "docid": "429203", "title": "", "text": "United States v. Porter, 441 F.2d 1204 (8th Cir.), cert. denied, 404 U.S. 911, 92 S.Ct. 238, 30 L.Ed.2d 184 (1971). Each case must turn on its own circumstances. Here, the judge injected himself into the trial throughout the entire proceeding. Chief Justice Hughes observed in Quercia v. United States, supra, 289 U.S. at 470, 53 S.Ct. at 699, that a judge’s privilege of comment in order to give appropriate assistance to the jury is too important to be left without safeguards against abuses. The influence of the trial judge on the jury “is necessarily and properly of great weight” and “his lightest word or intimation is received with deference, and may prove controlling.” .. , Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841. We have recently had occasion to explain the legal principles applicable in this kind of situation. In United States v. Bland, 697 F.2d 262, 265-66 (8th Cir.1983), we said: This Court has always been reluctant to disturb a judgment of conviction by reason of a few isolated, allegedly prejudicial comments of a trial judge. This is particularly true in a long trial. In each case a balancing process must be employed to determine whether the trial judge’s comments have pervaded the overall fairness of the proceedings. We think the balance is adversely tipped against the defendant in a criminal trial where the judge’s role loses its color of neutrality and tends to accentuate and emphasize the prosecution’s case. A trial judge s isolated questioning to clarify ambiguities is one thing; however, a trial judge cannot assume' the mantle of an advocate and take over the cross-examination for the government to merely emphasize the government’s proof or to question the credibility of the defendant and his witnesses. A judge’s slightest indication that he favors the government’s case can have an immeasurable effect upon a jury. A trial judge should seldom intervene in the questioning of a witness and then only to clarify isolated testimony. A trial court should never assume the burden of direct or cross-examination. (Footnotes and citations omitted)" }, { "docid": "398720", "title": "", "text": "Shot argues that the district court improperly allowed the government to reopen its direct examination of K.I.S., effectively instructing the government it needed to elicit additional facts to avoid a directed verdict. We review a district court’s decision to allow either side to reopen its case-in-chief for abuse of discretion, “and we have previously characterized the discretion it exercises in doing so as wide.” United States v. Boone, 437 F.3d 829, 836 (8th Cir.2006) (quotation omitted). Additionally, when a trial judge’s comments are alleged to have caused prejudice, we “ ‘balance and weigh the comments of the judge against the overall fairness of the trial ... [and conclude that] the balance is adversely tipped against the defendant in a criminal trial where the judge’s role loses its color of neutrality and tends to accentuate and emphasize the prosecution’s case.’ ” United States v. Van Dyke, 14 F.3d 415, 417-18 (8th Cir.1994) (alterations in original) (quoting United States v. Lueth, 807 F.2d 719, 727 (8th Cir.1986)). The district court initiated a sidebar conference with counsel following the government’s direct examination of K.I.S., its key witness on Count IV. The court warned the government that it may suffer a directed verdict on Count IV because the government’s questions may not have elicited sufficient testimony establishing all the necessary elements of the charge. The court’s interjection may have prompted the government to strengthen its case by directing counsel to elicit certain additional facts in its reopened direct examination. The jury, however, did not hear the court’s comments. The jury’s ignorance of the court’s statements is an important factor in determining the actual prejudice suffered and whether the “trial judge probably so impressed the jury with his partiality to the prosecution that this became a factor in determining defendant’s guilt.” Van Dyke, 14 F.3d at 423; see also United States v. Bland, 697 F.2d 262, 263-66 (8th Cir.1983) (reversing a criminal conviction when the trial judge unnecessarily questioned witnesses in the hearing of the jury, which showed a bias in favor of the prosecution). Unlike the cases cited by Never Misses A Shot, the" }, { "docid": "7927893", "title": "", "text": "Long Crow was competent to stand trial. (Supp.App. at 5.) “[A] medical opinion on the mental competency of an accused is usually persuasive evidence on the question of whether a sufficient doubt exists.” Griffin, 935 F.2d at 930; see also Lindhorst v. United States, 658 F.2d 598, 607-08 (8th Cir.1981) (holding that no new trial was required where medical reports indicated the defendant was competent and there was no contemporary evidence in conflict with the medical finding of competency), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 309 (1982). Long Crow contends, however, that his demeanor in the substitution of counsel hearing and at trial should have given the district court new doubt as to his competency and the continuing validity of Dr. Bickart’s opinion. Dr. Bickart’s evaluation was submitted to the district court in March, approximately four months before trial. Long Crow’s testimony at the substitution of counsel hearing one month before trial was, to a large extent, irrelevant rambling. At trial, although Long Crow occasionally rambled on in a monologue, most of his testimony was very coherent and articulate, indicating that he had a rational understanding of the proceedings against him. Additionally, there is no indication of the type of irrational or bizarre behavior that would normally indicate a competency problem. We are firmly convinced that “a trial court is better able than we are to judge the demeanor of an accused.” Griffin, 935 F.2d at 931. Given all the facts and circumstances before the district court, we cannot conclude that the district court acted unreasonably by failing to doubt Long Crow’s competence to stand trial. Therefore, the district court did not violate Long Crow’s right to due process by not holding a sua sponte hearing to determine his competency to stand trial. V. Based upon the foregoing, we affirm the judgment of the district court. . The Honorable Richard H. Battey, United States District Judge for the District of South Dakota. . The Honorable Donald J. Porter, Senior United States District Judge for the District of South Dakota. . Dr. Bickart's report which diagnosed Long" }, { "docid": "8644575", "title": "", "text": "the record reflects that the comment was made out of the jury’s hearing, we find that no plain error warranting reversal exists. See United States v. Ellis, 747 F.2d 1205, 1208 (8th Cir.1984). A trial judge is more than a “mere moderator” of a trial. United States v. Woods, 696 F.2d 566, 570-71 (8th Cir.1982) (quoting Dranow v. United States, 307 F.2d 545, 572 (8th Cir.1962)). [The trial judge] has the prerogative, and at times the duty, of eliciting facts he deems necessary to the clear presentation of the issues. To this end he may examine witnesses who testify, so long as he preserves an attitude of impartiality and guards against giving the jury an impression that the court believes the defendant is guilty. Llach v. United States, 739 F.2d 1322, 1329-30 (8th Cir.1984) (quoting Dranow, 307 F.2d at 572). Those questions that the trial judge did ask of witnesses were properly intended to clarify testimony and elicit necessary facts; the judge’s questioning did not become so one-sided as to deprive Gleason of a fair trial. See United States v. Bland, 697 F.2d 262, 265 (8th Cir.1983) (when trial judge has made allegedly prejudicial comments, appeals court must use balancing process to determine whether such comments have “pervaded over-all fairness” of proceedings). In sum, the trial court did not err in denying Gleason’s motions for a new trial and for a mistrial based on alleged misconduct. III. Alleged Violation of Speedy Trial Act Gleason also contends that her right to a speedy trial pursuant to the Speedy Trial Act, 18 U.S.C. §§ '3161-3174 (1982), was violated in this case. For consideration of this issue we review the relevant dates involved. Gleason originally waived indictment and pled guilty to a one-count information on July 27, 1983. The district court subsequently allowed her to withdraw her guilty plea November 23, 1983. The grand jury then handed down a nine-count indictment against Gleason and J.C. Baxter, in which Gleason was named in seven of the nine counts. Upon defense counsel’s motion, the magistrate on January 9, 1984 ordered that the trial be continued" }, { "docid": "19934844", "title": "", "text": "cross-examination, he acknowledged a chemical difference between 1,4 BD and GHB, but maintained that they are substantially similar. On re-direct, Dr. DeFrancesco said that they “are about as similar as they can be.” After re-direct, the district court asked: The Court: And a substance in order to be an analogue must be substantially similar, correct? Dr. DeFrancesco: In both the chemical structure and the pharmacology. -9- The Court: In fact, if it were not substantially similar, but were, was exactly the same, it wouldn’t be an analogue, would it? Dr. DeFrancesco: There would be no argument, it would be the same thing. The Court: That’s right, it would be the same thing. So if one point two (sic) Butanediol was the same as GHB, it would be GHB? Dr. DeFrancesco: That’s correct. The next day, Bamberg moved for a mistrial. Bamberg contends that the court’s questions are additional testimony and unfairly enhanced Dr. DeFrancesco’s credibility. This court will “balance and weigh the comments of the judge against the overall fairness of the trial,” and will overturn a conviction only when “the judge’s role loses its color of neutrality and tends to accentuate and emphasize the prosecution’s case.” United States v. Scott, 26 F.3d 1458, 1464 (8th Cir.1994). A judge may question a witness in order to clarify testimony and to elicit necessary facts. Id. But a trial judge should not act as an advocate and ask questions merely to emphasize the government’s proof. United States v. Van Dyke, 14 F.3d 415, 420 (8th Cir.1994). The purpose of the court’s questions was to clarify that 1,4 BD is not identical to GHB. Whether they are identical was not part of the government’s proof. The government argued that 1,4 BD is “substantially similar” to GHB and therefore a controlled substance analogue. Bamberg’s expert testified that they are not “substantially similar,” because the differences are too great. The court’s questions did not advance the government’s case, and were not prejudicial to Bamberg. VII. The judgment of the district court is affirmed. . The Honorable Richard H. Battey, United States District Judge for the" }, { "docid": "7927892", "title": "", "text": "presume that a defendant is competent absent some contrary indication. Id. at 982. Factors that might give a contrary indication include, “(1) evidence of irrational behavior by the accused, (2) the demeanor of the accused at trial, and (3) any prior medical opinion on the mental competency of the accused to stand trial.” Griffin, 935 F.2d at 930 (citing Drope, 420 U.S. at 180, 95 S.Ct. at 908). In order for Long Crow to mount a successful due process challenge, he must make “a showing that the trial judge failed to see the need for a competency hearing when, • based on the facts and circumstances known to him at the time, he should have seen such a need.” Day, 949 F.2d at 982. ■ The district court was -aware that Long Crow’s counsel was concerned about his competency and that a competency evaluation had previously been conducted. The report submitted by Dr. Bickart in March diagnosed Long Crow with mild severity PTSD, episodic alcohol abuse, personality disorder, and headaches, but Dr. Bickart concluded that Long Crow was competent to stand trial. (Supp.App. at 5.) “[A] medical opinion on the mental competency of an accused is usually persuasive evidence on the question of whether a sufficient doubt exists.” Griffin, 935 F.2d at 930; see also Lindhorst v. United States, 658 F.2d 598, 607-08 (8th Cir.1981) (holding that no new trial was required where medical reports indicated the defendant was competent and there was no contemporary evidence in conflict with the medical finding of competency), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 309 (1982). Long Crow contends, however, that his demeanor in the substitution of counsel hearing and at trial should have given the district court new doubt as to his competency and the continuing validity of Dr. Bickart’s opinion. Dr. Bickart’s evaluation was submitted to the district court in March, approximately four months before trial. Long Crow’s testimony at the substitution of counsel hearing one month before trial was, to a large extent, irrelevant rambling. At trial, although Long Crow occasionally rambled on in a monologue, most" }, { "docid": "17083410", "title": "", "text": "showing of what other witnesses were available, how they would have testified, and why such additional evidence would likely have affected the result” (emphases added)). In view of the “great deference” that we accord to the district court regarding the admissibility and probative value of evidence, United States v. Anderson, 446 F.3d 870, 873 (8th Cir.2006), we do not believe that the district court abused its discretion by refusing to allow Williams to play all 170 hours of audio recordings. 2. District Court’s Remarks During Trial Williams also claims that the district court made comments to him in front of the jury that were a “rebuke” and that “reflected] the general disdain in which Judge Strom held Mr. Williams.” These comments pertain primarily to Williams’s pro se presentation of evidence and, more specifically, to Williams’s dupli-cative questioning of witnesses. In particular, Williams points to several instances in which the district court told him to “move on” to a different subject. Williams claims that these remarks demonstrate a “loss of neutrality” and sent a “subtle signal of favoritism to the jury.” “[T]he balance [between a judge’s comments and the overall fairness of trial] is adversely tipped against the defendant in a criminal trial where the judge’s role loses its color of neutrality and tends to accentuate and emphasize the prosecution’s case.” United States v. Lueth, 807 F.2d 719, 727 (8th Cir.1986) (first alteration in original) (citation and internal quotation marks omitted). Reversal is warranted where “the court’s comments throughout a trial are one-sided and interfere with a defendant’s case to such an extent that the defendant is deprived of the right to a fair trial.” United States v. Warfield, 97 F.3d 1014, 1027 (8th Cir.1996). Williams relies on United States v. Singer, 710 F.2d 431 (8th Cir.1983) (en banc), for his argument that the district court “inappropriately injected itself into the proceedings in such a way that calls into question whether the jury was impartial.” The facts of Singer, however, are materially distinguishable from this case. In Singer, the district court actively participated in the defendants’ trial to help the government" }, { "docid": "9790419", "title": "", "text": "Cir.1992). Moreover, defendant made this same argument — that the evidence showed nothing more than that he was an innocent co-traveller with Rivera — to the jury. Because there was sufficient evidence to make reasonable a finding of guilt, the jury was entitled to discredit his theory of innocence. See, e.g., id. II. The Judge’s Conduct Defendant next urges us to reverse because, he asserts, the district judge became “a partisan of the government’s case,” thus depriving him of a fair trial. See, e.g., United States v. Wilensky, 757 F.2d 594, 598 (3d Cir.1985) (criminal trial unfair when “the judge’s role loses its color of neutrality and tends to accentuate and emphasize the prosecutor’s case”), cited in United States v. Corgain, 5 F.3d 5, 9 (1st Cir.1993). The judge’s allegedly improper conduct consists of questioning a prosecution witness and admonishing the prosecutor on her trial strategy in a manner reflecting adversely on defendant’s case. We have reviewed these matters, as well as the entire record, and find no conduct by the judge warranting reversal. The role of a federal trial judge, of course, is not limited to that of a “mere umpire.” United States v. Polito, 856 F.2d 414, 418 (1st Cir.1988). Instead, the judge “is the governor of the trial for assuring its proper conduct.” Desjardins v. Van Buren Community Hosp., 969 F.2d 1280, 1281 (1st Cir.1992) (per curiam) (quoting Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 698, 77 L.Ed. 1321 (1933)). In the exercise of this power, a trial judge has “the prerogative, and at times the duty, of eliciting facts he deems necessary to the clear presentation of issues. To this end he may examine witnesses who testify, so long as he preserves an attitude of impartiality and guards against giving the jury the impression that the court believes the defendant is guilty.” United States v. Paz Uribe, 891 F.2d 396, 400-01 (1st Cir.1989) (quoting Llach v. United States, 739 F.2d 1322, 1329-30 (8th Cir. 1984)). An appellate court, when asked to reverse because of asserted improper conduct by a trial judge, must" }, { "docid": "14812802", "title": "", "text": "he lived? MR. BLAND: No, sir. THE COURT: How many other people saw him with the gun? MR. BLAND: I don’t know. THE COURT: When he had the gun were there more than you around? Were there other people around? MR. BLAND: Yes, sir. We had a couple other guys. THE COURT: Was there an argument up there that night? MR. BLAND: Not really, no, Your Honor, sir, but it might have been. THE COURT: Were you involved in any argument? MR. BLAND: No, sir, I wasn’t. This court has always been reluctant to disturb a judgment of conviction by reason of a few isolated, allegedly prejudicial comments of a trial judge. Cf. United States v. Haley, 452 F.2d 398, 404 (8th Cir.1971), cert. denied, 405 U.S. 977, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972); United States v. Porter, 441 F.2d 1204, 1215-16 (8th Cir.), cert. denied, 404 U.S. 911, 92 S.Ct. 238, 30 L.Ed.2d 184 (1971). This is particularly true in a long trial. In each case a balanc-Nr ing process must be employed to determine whether the trial judge’s comments have pervaded the overall fairness of the proceedings. We think the balance is adversely tipped against the defendant in a criminal trial where the judge’s role loses its color of neutrality and tends to accentuate and emphasize the prosecution’s case. A trial judge’s isolated questioning to clarify ambiguities is one thing; however, a trial judge cannot assume the mantle of an advocate and take over the cross-examination for the government to merely emphasize the government’s proof or to question the credibility of the defendant and his witnesses. A judge’s slightest indication that he favors the government’s case can have an immeasurable effect upon a jury. A trial judge should seldom intervene in the questioning of a witness and then only to clarify isolated testimony. A trial court should never assume the burden of direct or cross-examination. In the present case the judge’s questioning was not necessary; the government was represented by competent and experienced counsel. See United States v. Hickman, 592 F.2d 931, 934 (6th Cir.1979). Upon return" }, { "docid": "5567593", "title": "", "text": "did not plead guilty to all three indictments, and he was subsequently convicted, his sentences would run consecutively. In fact, McMullen could not have been sentenced consecutively unless the district court determined that an upward departure was required, a possibility not raised by this case. See, e.g., United States v. Marsanico, 61 F.3d 666, 668-69 (8th Cir. 1995), and U.S.S.G. § 5G1.2(c), § 5G1.3(b). His attorney admits that he gave McMullen erroneous advice, and there appears to be no question that he is correct in this. The determination of whether a defendant may withdraw a guilty plea is left to the sound discretion of the trial court. See, e.g., United States v. Newson, 46 F.3d 730, 732 (8th Cir.1995). A defendant may withdraw his plea only if he has a “fair and just reason” to do so. See Fed.R.Crim.P. 32(e) and United States v. Capito, 992 F.2d 218, 219 (8th Cir.1993). Defense counsel’s performance can serve as the requisite “fair and just reason” for withdrawal only if McMullen demonstrates both that his attorney’s performance was deficient and that he was prejudiced by it. See, e.g., Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370-71, 88 L.Ed.2d 203 (1985). That is, he must prove “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59, 106 S.Ct. at 370. The district court faded to determine whether McMullen was prejudiced by his counsel’s errors. In fact, the court never asked McMullen whether his counsel’s inaccurate advice caused him to plead guilty. McMullen made only one statement at the hearing. When asked if he wished to speak, he responded, “I just wish I could withdraw because I didn’t understand completely what the situation of the morning was. I was stressed out, Your Honor.” We are unable to determine from this record whether the court should have allowed McMullen to withdraw his remaining plea. We therefore remand the case for an evidentiary hearing on this issue. If the court finds that McMullen would not have" }, { "docid": "10846366", "title": "", "text": "the logs, and in light of the substantial evidence supporting the jury’s guilty verdict, we affirm the district court’s ruling. II. The District Court’s Interference With the Testimony of Defendants’ Expert Defendants next argue that the testimony of their expert, Captain Edwin Geary, was rendered ineffective because the district court interfered with his testimony. Defendants complain that the court: (1) interrupted and clouded Captain Geary’s significant findings; (2) questioned his calculations; (3) questioned his testimony regarding hull speed; (4) confused the issues by interrupting his testimony; (5) attempted to bolster or rehabilitate the previous testimony of government witnesses; (6) emphasized points helpful to the prosecution; (7) attacked Captain Geary’s credibility; and (8) communicated to the jury that it did not believe the witness. Defendants complain that the court’s interference rose to the level of advocacy and denied them a fair trial by communicating to the jury that the court had taken a side. The government responds that the district court merely attempted to clarify vague and confusing testimony for its own benefit and the benefit of the jury. We have stated previously that the trial judge is more than a “mere moderator” in a federal trial and that the trial judge has the prerogative of eliciting facts he deems necessary to the clear presentation of issues. See United States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir.1989). Thus, the judge “may examine witnesses who testify, so long as he preserves an attitude of impartiality and guards against giving the jury an impression that the court believes the defendant is guilty.” Id. at 400-01 (quoting Llach v. United States, 739 F.2d 1322, 1329-30 (8th Cir.1984)). In Paz Uribe, we found that testimony presented by the defendant was confusing and that the district court acted appropriately in attempting to clarify the testimony. See id. at 401. Similarly, we find here that the district court appropriately questioned the defense expert, while managing to preserve an attitude of impartiality. Captain Geary’s testimony was confusing in that it included numerous maritime calculations. The district court did interrupt several times to ask questions, but the" }, { "docid": "8644574", "title": "", "text": "contain no comments by the trial judge at all, while others contain comments made by the judge out of the presence of the jury, thus averting any chance of prejudice. Other passages cited by Gleason consist of comments made by the judge to the prosecutor or defense counsel, including rulings on objections. Still other comments by the judge appear in the record as having been made in the presence, but out of the hearing, of the jury. Gleason’s counsel contends that one such comment in particular, when the judge stated that a witness had been “dead wrong” in his testimony concerning the tax free benefits of ministers, was audible at the counsel table and therefore probably to the jury as well. Counsel, however, did not make a contemporaneous objection to the comment. Had an objection been made at the time of the perceived error, the trial court would have had the opportunity to determine whether members of the jury had in fact overheard the comment. In the absence of such an objection, however, and because the record reflects that the comment was made out of the jury’s hearing, we find that no plain error warranting reversal exists. See United States v. Ellis, 747 F.2d 1205, 1208 (8th Cir.1984). A trial judge is more than a “mere moderator” of a trial. United States v. Woods, 696 F.2d 566, 570-71 (8th Cir.1982) (quoting Dranow v. United States, 307 F.2d 545, 572 (8th Cir.1962)). [The trial judge] has the prerogative, and at times the duty, of eliciting facts he deems necessary to the clear presentation of the issues. To this end he may examine witnesses who testify, so long as he preserves an attitude of impartiality and guards against giving the jury an impression that the court believes the defendant is guilty. Llach v. United States, 739 F.2d 1322, 1329-30 (8th Cir.1984) (quoting Dranow, 307 F.2d at 572). Those questions that the trial judge did ask of witnesses were properly intended to clarify testimony and elicit necessary facts; the judge’s questioning did not become so one-sided as to deprive Gleason of a fair" }, { "docid": "5641684", "title": "", "text": "allegedly suppressed. United States v. Agurs, - U.S. -, 96 S.Ct. 2392, 49 L.Ed.2d 342, (1976); United States v. Crow Dog, 532 F.2d 1182 (8th Cir. 1976). Evidence of the supposed bargain could be used only to impeach Shelton’s testimony. The test for materiality is whether it could have been used by skilled counsel to develop “a reasonable doubt [of guilt] in the minds of enough jurors to avoid a conviction.” United States v. Crow Dog, supra, 532 F.2d at 1191. It is obvious that the evidence here could not have been used to create a reasonable doubt at either trial. At both trials, appellant’s counsel made thorough attempts to impeach Shelton’s testimony. At the Cass Federal trial, counsel brought out the fact that Shelton had several prior convictions. He elicited testimony that certain charges against Shelton (including a narcotics charge and a charge of assaulting a police officer) had been dropped. He showed that charges in a Carbondale bank robbery had been brought against Shelton’s companions, but not against Shelton. Counsel also took the stand and testified that, in his presence, Shelton had once threatened to kill appellant’s co-defendant. At the Washington Federal trial appellant’s counsel attempted similar impeachment tactics. Indeed, as we said on appeal, “The record is otherwise replete with derogatory information about Shelton and it is highly doubtful that his credibility could have been more seriously undermined that it was.” United States v. Smith, 464 F.2d 222, 224 (8th Cir. 1972). Despite this wealth of impeachment material at both trials, both juries credited Shelton’s testimony and found appellant guilty. We fail to see how evidence of the dropping of one more set of charges could have affected this result. We conclude that the evidence allegedly suppressed could not have been used to create a reasonable doubt in the jury’s mind, and that materiality, an essential element of a Brady claim, is therefore necessarily absent. Appellant cannot show a denial of due process, either under Napue v. Illinois, supra, or Brady v. Maryland, supra. Affirmed. . The Honorable James H. Meredith, Chief Judge, United States District Court" }, { "docid": "19934845", "title": "", "text": "overturn a conviction only when “the judge’s role loses its color of neutrality and tends to accentuate and emphasize the prosecution’s case.” United States v. Scott, 26 F.3d 1458, 1464 (8th Cir.1994). A judge may question a witness in order to clarify testimony and to elicit necessary facts. Id. But a trial judge should not act as an advocate and ask questions merely to emphasize the government’s proof. United States v. Van Dyke, 14 F.3d 415, 420 (8th Cir.1994). The purpose of the court’s questions was to clarify that 1,4 BD is not identical to GHB. Whether they are identical was not part of the government’s proof. The government argued that 1,4 BD is “substantially similar” to GHB and therefore a controlled substance analogue. Bamberg’s expert testified that they are not “substantially similar,” because the differences are too great. The court’s questions did not advance the government’s case, and were not prejudicial to Bamberg. VII. The judgment of the district court is affirmed. . The Honorable Richard H. Battey, United States District Judge for the District of South Dakota." }, { "docid": "17083411", "title": "", "text": "of favoritism to the jury.” “[T]he balance [between a judge’s comments and the overall fairness of trial] is adversely tipped against the defendant in a criminal trial where the judge’s role loses its color of neutrality and tends to accentuate and emphasize the prosecution’s case.” United States v. Lueth, 807 F.2d 719, 727 (8th Cir.1986) (first alteration in original) (citation and internal quotation marks omitted). Reversal is warranted where “the court’s comments throughout a trial are one-sided and interfere with a defendant’s case to such an extent that the defendant is deprived of the right to a fair trial.” United States v. Warfield, 97 F.3d 1014, 1027 (8th Cir.1996). Williams relies on United States v. Singer, 710 F.2d 431 (8th Cir.1983) (en banc), for his argument that the district court “inappropriately injected itself into the proceedings in such a way that calls into question whether the jury was impartial.” The facts of Singer, however, are materially distinguishable from this case. In Singer, the district court actively participated in the defendants’ trial to help the government on substantive matters. For example, the district court assisted the prosecution in making objections to defense counsel’s questioning of witnesses, see id. at 433; commandeered the prosecution’s questioning of witnesses and gave “hint[s]” to the prosecution regarding what questions to ask, see id. at 433-34; and conjured up excuses for the prosecution when the government’s attorney made a misstatement at trial, id. at 435. In one instance, the district court stated that it had, up to that point in time, been “try[ing] the Government’s case for it,” id. at 433 (internal quotation marks omitted), and in another instance stated that it was “helping the Government to try its case,” id. at 435-36 (internal quotation marks omitted). After reviewing the record, we find no abuse of discretion in the district court’s attempts to avoid either duplicative evidence or Williams’s unnecessarily lengthy presentation of evidence, or both. In contrast to Singer, the district court’s statements to “move on” that Williams claims demonstrate a bias against him pertain to trial management and trial efficiency — not the substantive" } ]

[ { "docid": "18063657", "title": "", "text": "Differences in the practical problems of eliminating racial segregation under the varying situations of states or local districts must look for their margins of latitude in effecting that result to the principles laid down in Brown v. Board of Education, 349 U.S. 294, 299-300, 75 S.Ct. 753, 756, 99 L.Ed. 1083. In this field of constitutional pai*amountcy, a placement or assignment statute is entitled to be accorded recognition only as an implement or adjunctive element on the part of a state for effecting an orderly solution to its desegregation difficulties, in proper relationship to its other school-system problems, but with a subservience to the supreme-law declaration of the Brown cases as to all imposed segregation and the obligation owed to get rid thereof within the tolerance entitled to be allowed play under these decisions for accomplishing that result. But there is no need here to extend further these generalized observations. Reverting to the facial constitutionality of the Placement Act, it follows that the plaintiffs are without any general public-school right under Arkansas law to seek admission to a particular school, except on the basis of and in accordance with the provisions of that Act. While their federal constitutional rights have been previously violated in that they have been required to attend a school segregated under administrative authority, the Placement Act provides a means for them now to seek admission to the school which they think they are otherwise entitled to attend and, insofar as the provisions of the Act are concerned, have their right to do so determined without regard to their race or color. Section 4 of the Act permits a Board of Education to delegate to the Superintendent of Schools the general task of making assignment of pupils among the schools of a District. But Section 7 makes provision for a right on the part of a parent or guardian of a pupil to file objections in writing to an assignment so made, to make request for a transfer of the pupil to a designated schoel, and to demand a hearing. The Board is required in such a" } ]

[ { "docid": "17611862", "title": "", "text": "an effective tool to accomplish racial desegregation in an orderly manner, in accordance with the Supreme Court’s directive, we also recognize that there is nothing in the Arkansas pupil assignment law or the implementing resolution “clearly inconsistent with a continuing policy of compulsory racial segregation,” Gibson v. Board of Public Instruction, Dade County, Fla., 5 Cir., 272 F.2d 763, 766; Mannings v. Board of Public Instruction, 5 Cir., 277 F.2d 370, 372, and, the criteria which are a part of the Act here could be used in such a way as to be a vehicle for frustrating the constitutional requirement laid down by the Supreme Court. In Dove v. Parham, 8 Cir., 282 F.2d at page 258, supra, we considered the validity of the Arkansas law, and stated: “The recognition of facial validity which we thus gave to the statute was on the basis of it constituting a ‘legislative non-racial scheme’, intended to serve in effecting student location through ‘overall pattern’, instead of by promiscuous result.” We have counseled in explicit language that the Act cannot “be made to serve through artificial application, as an instrument for maintaining * * * a system of racial segregation.” Parham v. Dove, 271 F.2d at page 136, supra. See also, Shuttlesworth v. Birmingham Board of Education, D.C.N.D.Ala., 162 F.Supp. 372, affirmed 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145, and Jones v. School Board of City of Alexandria, Virginia, 4 Cir., 278 F.2d 72, at pages 75 and 77, where this pertinent comment appears : “Such criteria [residence and intelligence or scholarship attainment] are in effect in many school systems throughout the country. In the absence of a showing that these factors are used in such a way as to deprive individuals of their constitutional rights, they are, of course, not objectionable on constitutional grounds. **«•*■»* “If the criteria should be applied only to Negroes seeking transfer or enrollment in particular schools and not to white children, then the use of the criteria could not be sustained. Or, if the criteria are, in the future, applied only to applications for transfer and" }, { "docid": "8277442", "title": "", "text": "approaches to desegregation, whereby most schools remain either all black or all white, the changes in school populations have been almost as rapid. Courts recognize that rapid changeovers of this sort also occur in systems under zone assignment plans which preserve the existing patterns to any significant extent. The law therefore dictates that school systems are not effectively desegregated either by piecemeal approaches or compartmentalization, or by separate consideration of par ticular geographic areas. See, e. g., Davis v. Board of School Commissioners of Mobile, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); U. S. v. Board of School Commissioners of Indianapolis (S.D.Ind., Aug. 1971) ; Haney v. County Bd. of Ed. of Sevier County, 410 F.2d 920; Swann & Charlotte-Mecklenberg Bd. of Ed., 431 F.2d 138 (4th Cir. 1970), rev’d. in part 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Yarbrough v. Hulbert-West Memphis School District No. 4, 329 F.Supp. 1059, 1065 (E.D.Ark. 1971). The weakness of such an approach, noted by courts, is that it preserves the racial identifiability of individual facilities. Racial identifiability, therefore, is a function of the composition of the school community and the pupil assignment scheme for the individual schools. Community Perceptions Schools the racial composition of which departs significantly from the community parity, educators agree, are perceived by parents, teachers, administrators, public officials, pupils, and the community at large as facilities designed and operated for one race or the other. Generally schools attended under these circumstances by disproportionate numbers of black students are perceived as inferior. Experts generally concur that this has adverse effects not only on black pupils and teachers, but the entire community. This impact affects both the cognitive and affective development of the pupils. Analogous effects impede the development of white students in disproportionately white schools. In the case of the black student, impairment in the affective domain, that of perception of one’s own ability to learn, to function in society, and to control one’s destiny, is coupled with failure to advance m the cognitive sphere. Experts agree that this adverse impact cumulates in effect and" }, { "docid": "8903024", "title": "", "text": "the relevant evidence, we express our agreement with the District Judge. 3) Faculty desegregation. In the accomplishment of desegregation in the involved schools, there remain some that are attended only by Negro and others only by white children. The teaching staff conforms substantially to this pattern — all Negro teachers in the all Negro schools and all white teachers in the all white schools. Little attention was paid to the teaching staff in the early desegregation cases. Brown v. Board of Education, supra, did not speak on it, nor did the early relevant decisions from this circuit. In Mapp v. Board of Education of Chattanooga, 319 F.2d 571, 576 (CA 6, 1963), however, we ordered restored to the complaint there involved allegations and prayers for relief relating to assignment of teachers and principals, but ordered also that “decision of the legal question presented await development in the progress of the plan approved.” 319 F.2d at 576. And we further concluded that “[w]ithin his discretion, the District Judge may determine when, if at all, it becomes necessary to give consideration to the question * * Id. This leisurely postponement of consideration of faculty desegregation appealed to the Fourth Circuit, when in Bradley v. School Board of City of Richmond, Virginia, 345 F.2d 310, 320, 321 (CA 4, 1965), it said: “The possible relation of a reassignment of teachers to protection of the constitutional rights of pupils need not be determined when it is speculative. When all direct discrimination in the assignment of pupils has been eliminated, assignment of teachers may be expected to follow the racial patterns established in the schools. An earlier judicial requirement of general reassignment of all teaching and administrative personnel need not be considered until the possible detrimental effects of such an order upon the administration of the schools and the efficiency of their staffs can be appraised along with the need for such an order in aid of protection of the constitutional rights of pupils.” But the Supreme Court declared this would not do, and in Bradley v. School Board, 382 U.S. 103, 86 S.Ct. 224," }, { "docid": "2880847", "title": "", "text": "to transfer to a school where his race was in the minority. As stated by Judge Young, this modification would permit Negro students who would otherwise be locked into predominantly Negro schools to transfer to predominantly white schools. Other modifications made, which Judge Young conceded were gerrymandering, were designed to further racial balance in the schools. The Board’s plan as modified was approved. The court in its decree retained jurisdiction over the case and required the Board to report further upon the operation of the plan. For the reasons assigned by Judge Young in his well-considered opinion, we believe the modified plan as approved meets constitutional standards. Everything has been done that could be done short of abandonment of the neighborhood school system to eliminate segregation. Plaintiffs have pointed to no existing state law that prevents desegregation or integration and we find no such law. It can no longer be fairly said that the desegregation process is impeded by state law. Geographic attendance zones fairly laid out without racial discrimination by a unitary system should meet the constitutional standards set forth in Brown I and subsequent Supreme Court cases commanding a racially nondiscriminatory school system. There is no question here of dual attendance zones or of a state imposed pattern of segregation. The neighborhood school concept, as shown by expert testimony in the record, is a well-established and acceptable means of providing a proper educational program in all sections of the country for people of all nationalities and races. President Nixon in a recent public statement has said neighborhood schools “will be deemed the most appropriate base” for an acceptable school system, and “transportation of pupils beyond normal geographical school zones for the purpose of achieving racial balance will not be required.” The basic issue presented on this appeal appears to be whether upon the facts disclosed by the record a fairly established geographical zoning system for neighborhood schools must be abolished in order to attain racial balance and if so, whether such balance in each school must closely approach the percentage of each race in the district. It would" }, { "docid": "11928973", "title": "", "text": "a method involving discriminatory practices and then requiring them, or even permitting them, to extricate themselves from situations thus illegally created, will not be approved. In Jeffers v. Whitley, supra, this court placed the stamp of approval upon the right of free choice of schools to be exercised by parents and pupils at the time of initial pupil assignment and at reasonable intervals thereafter. In the more recent decision in Bradley v. School Board of City of Richmond, Virginia, 345 F.2d 310, which was handed down on April 7, 1965, the majority of this court held: “ * * * A state or a school district offends no constitutional requirements when it grants to all students uniformly an unrestricted freedom of choice as to schools attended, so that each pupil, in effect, assigns himself to the school he wishes to attend.” In Bradley the School Board had discontinued the use of long established dual attendance maps and zones in determining pupil assignments on a racial basis and the use of a racial feeder system which had been earlier condemned. Instead, the schools were being operated under a system whereby each student was accorded the truly unrestricted freedom to attend the school of his choice. There was no problem with respect to overcrowding beyond the capacity of any school. This system was approved as meeting constitutional requirements. However, as was pointed out in Bradley, “ * * * In this circuit, we do require the elimination of discrimination from initial assignments as a condition of approval of a free transfer plan.” We do not think that any statements appearing in the decisions of this court in the Jeffers and Bradley cases would provide a basis for continuing in effect beyond the 1964-65 school term the Board’s plan of pupil assignment in the City of Durham, even as enlarged by the court as to the pupil’s right to transfer to a school other than the one to which he is assigned. If the Board so desires, it may abandon its objectionable plan and substitute in lieu thereof the unrestricted freedom of choice" }, { "docid": "17611861", "title": "", "text": "basis of residence of the pupils, we must rule that the Board was not rendered without authority to modify, or, more accurately stated, to supplement such plan by applying the factors and criteria set forth in the assignment laws, so long as they are not applied in an artificial manner and for the purpose of continuing segregation in the Little Rock schools. In the final analysis, the controlling question for determination is whether the constitutional rights of children not to be discriminated against in school admission on grounds of race or color, have been violated. See Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 3 L.Ed.2d 5. To properly evaluate the Board's actions preceding the 1959-60 school term, and to make determination as to whether, as urged by the Board, it proceeded in good faith, recognizing its duties as above outlined, we give attention to the controlling principles of law. While proper application of pupil assignment laws may be an effective tool to accomplish racial desegregation in an orderly manner, in accordance with the Supreme Court’s directive, we also recognize that there is nothing in the Arkansas pupil assignment law or the implementing resolution “clearly inconsistent with a continuing policy of compulsory racial segregation,” Gibson v. Board of Public Instruction, Dade County, Fla., 5 Cir., 272 F.2d 763, 766; Mannings v. Board of Public Instruction, 5 Cir., 277 F.2d 370, 372, and, the criteria which are a part of the Act here could be used in such a way as to be a vehicle for frustrating the constitutional requirement laid down by the Supreme Court. In Dove v. Parham, 8 Cir., 282 F.2d at page 258, supra, we considered the validity of the Arkansas law, and stated: “The recognition of facial validity which we thus gave to the statute was on the basis of it constituting a ‘legislative non-racial scheme’, intended to serve in effecting student location through ‘overall pattern’, instead of by promiscuous result.” We have counseled in explicit language that the Act" }, { "docid": "11928972", "title": "", "text": "this court in Jeffers v. Whitley, 309 F.2d 621 (4 Cir. 1962). While the Board’s plan made provision for a transfer privilege and the pupil’s right to attend a school of his choice, the court, in final disposition, enlarged to some extent upon the proposal. For these efforts, to adopt legally acceptable procedures with respect to the 1964-65 school year, the court is to be commended since the apparent objective was to further desegregation of the schools and to eliminate racial discrimination in their operation. This is not to say, however, that the August 3, 1964, order should or will be accorded full approval. To permit the Board’s plan to operate as the basic method of determining initial assignments from gerrymandered zones and to control subsequent assignments, a legally indefensible plan which violates the lower court’s order of January 2, 1963, in material respects, is contrary to this court’s pronouncements concerning a permissible plan which, in operation, would afford complete freedom of choice, entirely free of any imposed racial considerations. Channeling pupils into schools by a method involving discriminatory practices and then requiring them, or even permitting them, to extricate themselves from situations thus illegally created, will not be approved. In Jeffers v. Whitley, supra, this court placed the stamp of approval upon the right of free choice of schools to be exercised by parents and pupils at the time of initial pupil assignment and at reasonable intervals thereafter. In the more recent decision in Bradley v. School Board of City of Richmond, Virginia, 345 F.2d 310, which was handed down on April 7, 1965, the majority of this court held: “ * * * A state or a school district offends no constitutional requirements when it grants to all students uniformly an unrestricted freedom of choice as to schools attended, so that each pupil, in effect, assigns himself to the school he wishes to attend.” In Bradley the School Board had discontinued the use of long established dual attendance maps and zones in determining pupil assignments on a racial basis and the use of a racial feeder system which" }, { "docid": "2215724", "title": "", "text": "court orders and the Constitution. As noted previously, CMS operated its schools in nearly perfect racial balance for almost twenty years under a pupil assignment plan, adopted by the board and approved by the district court in 1974, which primarily utilized paired elementary schools, satellite attendance zones, a feeder system, and three experimental “optional schools.” See Swann, 379 F.Supp. at 1103-05; J.A. XXVIII-13,536-44. In 1991, however, CMS hired Dr. Stolee to examine racial imbalance that was being caused anew by the demographic shifts and population growth in Mecklenburg County. The result of Dr. Stolee’s labors was a new pupil assignment plan, entitled “CMS Student Assignment Plan: A New Generation of Excellence.” This new plan emphasized the use of magnet schools, which would allow CMS to phase out the unpopular paired elementary schools. Magnet schools, many of which were located in predominately black neighborhoods, offered a specialized curriculum or innovative instructional styles not found in the other schools in the system. Former Superintendent Murphy oversaw implementation of the Stolee plan and testified that the magnet program was adopted because CMS “wanted to attract more white youngsters into the inner city schools” in order to meet CMS’s racial-balance goals. J.A. VI-2709. Dr. Stolee observed in his report that “Charlotte-Mecklenburg has had a long and successful experience with mandatory school assignments,” but that in order to combat demographic shifts CMS should adopt a plan based on voluntarism. J.A. XXXII-15,581; see also Missouri v. Jenkins, 515 U.S. 70, 92, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (Jenkins III) (“Magnet schools have the advantage of encouraging voluntary movement of students within a school district in a pattern that aids desegregation on a voluntary basis, without requiring extensive busing and redrawing of district boundary lines.”); J.A. XXVIII-13,796 (student assignment plan boasting that “Charlotte, the city which prides itself on leading the nation in integration through busing, now has the opportunity to become the city to lead the nation in voluntary busing”). A desegregation plan using magnet schools, according to Dr. Stolee, would “give[ ] each parent an opportunity to make a choice between a school serving" }, { "docid": "19019754", "title": "", "text": "school system under during the immediately pending school year. The press now contains a dispatch, indicating that the board has announced that it has assigned one 6-yeax--old Negro girl to the first grade in one of its two white schools for the pending year, and quoting the board as stating that it hoped that its action would help preserve the Ax-kansas pupil assignment law. We do no more than to note the item. The trial court may possibly desire to have indication made, in the more definitive expression of program which the board is being required to make, of what scope of opportunity generally was afforded for admission, in relation to such action. Two further comments should pex’haps here be made. Both we and the trial court have regarded the board as having been acting with subjective good faith. The question here, howevex*, is not state of mind but required action. Required action is measurable only by objectivity. The second relates to the statement of the trial court, 183 F.Supp. at page 393, as follows: “The Board has stated with candor that in making assignments consideration will be given to race. As indicated, where a transition period has been initiated, limited consideration in assigning students may be given to race”. Where a board has adopted a definitive plan of effecting desegregation by reasonable transitional steps, the racial question necessarily is geared to the scope of those steps. But only in that sense and within that need, we think, is there basis to say that consideration in assigning students may be given to race. The board may in such a situation find it necessary to make selection between Negro students, and it will be entitled to do so on proper judgment as to what will best serve to accomplish its program. However, as we have said above, it has ■no right to resolve or take action at any time on the basis that it is better for some individual not to have the enjoyment of his constitutional right. II. As to appeal No. 16,437, relating to the court’s refusal to order" }, { "docid": "8277468", "title": "", "text": "and black residential areas, and in fact was so intended. Coupled with the hard and fast policy of not transporting pupils across school division lines to promote desegregation and also drawing attendance zones within divisions on a rough proximity basis, county construction policy has given rise to a number of identifiably white schools. Black facilities near the periphery of Richmond —the prime example is Kennedy High School, physically located in Henrico — in the meantime have been built and opened on a segregated basis because Richmond could or would not exchange pupils with the counties in order to desegregate. The counties’ policies of drawing attendance zones roughly on a basis of proximity has been departed from on occasion, but so far as this record shows not in an effort to desegregate. Rather new construction was planned for black schools without regard to the possibility of accommodating an expanding black pupil population in white schools. Passing consideration of the role of any governmental agencies in the creation of segregated housing patterns by other means, the construction policies of the school administrators, in which, of course, the State Board played a very substantial role, both perpetuated and manufactured anew the constitutional wrong of school segregation. The construction of new schools and the closing of old ones is one of the most important functions of local school authorities and also one of the most complex. They must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student assignment, will determine the racial composition of the student body in each school in the system. Over the long run, the consequences of the choices will be far reaching. People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner city neighborhoods." }, { "docid": "17611881", "title": "", "text": "integration plan which, as found herein, may be supplemented by a proper application of the Pupil Assignment Act of Arkansas. This injunction further requires that they “take affirmative steps, on their own initiative” to facilitate and accomplish operation of the school district on a non-discriminatory basis. (Emphasis supplied.) Aaron v. Cooper, 261 F.2d at page 108, supra; Aaron v. Cooper, 169 F.Supp. at page 337, supra. (2) The standards and criteria of the pupil assignment law cannot be given application to preserve imposed segregation. The obligation to disestablish imposed segregation is not met by applying placement or assignment standards, educational theories or other criteria so as to produce the result of leaving the previous racial situation existing as it was before. If application of standards and criteria has the effect of preserving a created status of constitutional violation, such application fails to constitute a sufficient remedy in dealing with the constitutional wrong. Dove v. Parham, 282 F.2d at page 259, supra. (3) The standards and criteria of the pupil assignment law must be applied objectively in the making of initial assignments of all students in the Little Rock school system to the end that imposed segregation is discontinued in the Little Rock schools as contemplated by the plan of integration. (4) The standards and criteria of the pupil assignment law must be applied objectively in processing applications for transfers or re-assignments, and without discrimination based on race or color to the end that imposed segregation is discontinued in the Little Rock schools as contemplated by the plan of integration. The judgment is reversed and the cause is remanded, and the district court is directed to retain jurisdiction of the cause to the end that our views as herein expressed are carried into effect. . See Aaron v. Cooper, D.C., 156 F.Supp. 220, enjoining Governor and other officials of the State of Arkansas from, inter alia, obstructing or preventing Negro students from attending Little Rock Central High School, affirmed sub. nom. Faubus v. United States, 8 Cir., 254 F.2d 797, certiorari denied 358 U.S. 829, 79 S.Ct. 49, 3 L.Ed.2d 68;" }, { "docid": "14958192", "title": "", "text": "preferences, the Board has no projections for the 1969-70 enrollments at either North Little Rock High School or Northeast High School, except that, as indicated, the Board does predict that 147 Negro 10th graders will be assigned to Northeast. There are five junior high attendance zones: Rose City, Jones, Jefferson Davis, Ridgeroad, and Lakewood. The old Fourth Street Junior High School is to be closed. For Rose City the Board projects a total enrollment of 542 including 153 Negroes, for Jones 501 students of whom 159 will be white, for Jefferson Davis 641 pupils of whom 197 will be Negroes, for Ridgeroad 784 pupils including no Negroes, and for Lakewood (“Northeast Complex”) 669 junior high school students all of whom will be white. With regard to faculty desegregation the plan amounts actually to nothing but a pledge that the District will refrain from racial discrimination in hiring, compensating, promoting, demoting, and discharging professional employees, and that reductions of force caused by desegregation will be handled in a racially non-discriminatory manner. The Court has given careful consideration to the plan in the light of the District’s constitutional requirement to disestablish its present dual school system and to replace it with a unitary system of integrated schools. Had this plan come before the Court in 1959, the Court might have been able to approve it as a “transitional” plan. But, the Court is convinced that in 1969 the plan as written cannot be approved as either a permanent plan or as an interim plan. Assuming for a moment that the plan should be approved in its entirety and put into operation this fall, the following situation would exist: 1. An essentially segregated faculty with only token desegregation to the extent described heretofore. 2. An elementary school system operating under a freedom of choice method of pupil assignments which has not up to now served to disestablish the existing dual elementary school system, and with respect to which there is no reason to believe that it will prove effective to do so in the foreseeable future, if ever. 3. All students in the" }, { "docid": "19019741", "title": "", "text": "74 S.Ct. 686, 98 L.Ed. 873, and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, ought by then to have prompted. We held, however, that, in view of the enactment of a state pupil placement or assignment statute, Act No. 461 of 1959, Ark.Stats. § 80-1525 et seq., the District would not be summarily required to make admission of the three individual plaintiffs involved to the school they sought to attend, but should be afforded the opportunity to make use of the provisions of the statute as a means or an aid in effecting an orderly location of pupils generally, in relation to the various factors which could be involved as to distribution in its school system, except those of purely racial consideration. 271 F.2d at page 137. The recognition of facial validity which we thus gave to the statute was on the basis of it constituting a “legislative non-racial scheme”, intended to serve in effecting student location through “overall pattern”, instead of by promiscuous result. Id., at page 138. But we cautioned that “the statute cannot * * * be made to serve through artificial application, as an instrument for maintaining * * * a system of racial segregation”. Id., at page 136. Judicial persuasion would not normally tend to be produced that a placement or assignment statute was being used as an auxiliary in effecting an orderly solution of a school district’s integration problems, where the district had refrained from adopting any program to disestablish its previous racial discrimination, where the only application of the statute engaged in by it was to Negro students seeking to escape their segregated status, and where the only result brought about thereby was to leave the racial situation in the school system remaining exactly as before. Standards of placement cannot be devised or given application to preserve an existing system of imposed segregation. Nor can educational principles and theories serve to justify such a result. These elements, like everything else, are subordinate to and may not prevent the vindication of constitutional rights. An individual cannot be deprived of the enjoyment of" }, { "docid": "2880828", "title": "", "text": "of pupil placement, could not be used to assign students, if it failed to correct the segregated character of the system. Dove v. Parham, 282 F.2d 256 (8th Cir. 1960). In 1968, prior to the Green trilogy, we were faced with a “freedom of choice” plan. Kemp v. Beasley, 389 F.2d 178 (8th Cir. 1968) (Kemp II). It too was asserted to be educationally sound and devoid of racial considerations. However, we tested “freedom of choice” as applied in that particular instance and found it lacking; not by viewing it in the abstract, but rather by considering whether it effectively advanced the desegregation process. Our analysis in Kemp II was, of course, approved by the Green trilogy. And, only very recently we again found “freedom of choice” to be constitutionally deficient in Kemp III, supra. Although desegregation had been accomplished at the high school level by pairing and the junior high level by “freedom of choice,” application of “freedom of choice” to the elementary grades left 5 of the 10 schools racially identifiable. We ordered the District to take the necessary steps to correct the segregated character of those 5 elementary schools. Thus, as of this date, it is not enough that a scheme for the correction of state sanctioned school segregation is non-discriminatory on its face and in theory. It must also prove effective. As the Court observed in Green: “In the context of the state-imposed pattern of long standing, the fact that in 1965 the Board opened the doors of the former ‘white’ school to Negro children and of the ‘Negro’ school to white children merely begins, not ends, our inquiry whether the Board has taken steps adequate to abolish its dual, segregated system. Brown II was a call for the dismantling of a well-entrenched dual system.” 391 U.S. at 437, 88 S.Ct. at 1694. We believe that geographic attendance zones, just as the Arkansas pupil placement statutes, “freedom of choice” or any other means of pupil assignment must be tested by this same standard. In certain instances geographic zoning may be a satisfactory means of desegregation. In" }, { "docid": "19019740", "title": "", "text": "JOHNSEN, Chief Judge. These appeals are from orders made by the District Court, 181 F.Supp. 504 and 183 F.Supp. 389 in a transition by Dollar-way School District No. 2, Jefferson County, Arkansas, from a segregated to a desegregated school system. Involved are the things which have occurred in the situation since our remand in Parham v. Dove, 8 Cir., 271 F.2d 132. One of the directions in our mandate, 271 F.2d at page 135, was that an injunction should be entered against the District and its officers to prevent them from continuing to maintain, as against the student plaintiffs and the class represented by them, the system of unconstitutional segregation to which the District had been subjecting them in their educational process. This direction was made because the school board had up to that time taken no steps, even of a transitional nature, to bring about the disestablishment of the existing unlawful status- — -which a recognition of the responsibility made clear by the Brown cases, Brown v. Board of Education etc., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, ought by then to have prompted. We held, however, that, in view of the enactment of a state pupil placement or assignment statute, Act No. 461 of 1959, Ark.Stats. § 80-1525 et seq., the District would not be summarily required to make admission of the three individual plaintiffs involved to the school they sought to attend, but should be afforded the opportunity to make use of the provisions of the statute as a means or an aid in effecting an orderly location of pupils generally, in relation to the various factors which could be involved as to distribution in its school system, except those of purely racial consideration. 271 F.2d at page 137. The recognition of facial validity which we thus gave to the statute was on the basis of it constituting a “legislative non-racial scheme”, intended to serve in effecting student location through “overall pattern”, instead of by promiscuous result. Id., at page 138. But we cautioned that" }, { "docid": "11928971", "title": "", "text": "system which had been used in the past to produce and foster the continuation of the proscribed segregation and racial dis crimination in the public schools. Possibly the Board reasoned that, by incorporating the proposed right of transfer provisions into the plan, it could escape or sidestep the restraints imposed by the January 1963 order. The District Court found that the proposed school zone boundaries had, in part, been gerrymandered and were based upon racial considerations. The continuation of initial assignments, the pattern of assignments into junior high schools, and the feeder system into the high schools would clearly be in violation of the court’s order. The time for commencement of the 1964-65 term was fast approaching when the.court entered its order of August 3, 1964; the court was obligated to act without undue delay. The plan submitted by the Board as to pupil assignments was constitutionally unacceptable and could not be approved, as the court recognized. It appears from colloquies between court and .counsel that the court was undertaking to follow the pronouncements of this court in Jeffers v. Whitley, 309 F.2d 621 (4 Cir. 1962). While the Board’s plan made provision for a transfer privilege and the pupil’s right to attend a school of his choice, the court, in final disposition, enlarged to some extent upon the proposal. For these efforts, to adopt legally acceptable procedures with respect to the 1964-65 school year, the court is to be commended since the apparent objective was to further desegregation of the schools and to eliminate racial discrimination in their operation. This is not to say, however, that the August 3, 1964, order should or will be accorded full approval. To permit the Board’s plan to operate as the basic method of determining initial assignments from gerrymandered zones and to control subsequent assignments, a legally indefensible plan which violates the lower court’s order of January 2, 1963, in material respects, is contrary to this court’s pronouncements concerning a permissible plan which, in operation, would afford complete freedom of choice, entirely free of any imposed racial considerations. Channeling pupils into schools by" }, { "docid": "2880827", "title": "", "text": "not hold that a ‘freedom of-choice’ plan might of itself be unconstitutional, although that argument has been urged upon us. Rather all we decide today is that in desegregating a dual system a plan utilizing ‘freedom of choice’ is not an end in itself.” 391 U.S. at 439-440, 88 S.Ct. at 1694. (emphasis in the second and third paragraphs supplied). More recent pronouncements by the Court are consistent with this pragmatic approach. In Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969), the Court ordered the “immediate” termination of dual school systems and the operation of “unitary school systems within which no person is to be effectively excluded from any school because of race or color.” Id. at 20, 90 S.Ct. at 30. (emphasis supplied). Review of desegregation decisions from this circuit reveals that we too have tested proposed plans of desegregation by their effectiveness. For instance, ten years ago we held that the Arkansas pupil placement statute, on its face a non-discriminatory and educationally rational means of pupil placement, could not be used to assign students, if it failed to correct the segregated character of the system. Dove v. Parham, 282 F.2d 256 (8th Cir. 1960). In 1968, prior to the Green trilogy, we were faced with a “freedom of choice” plan. Kemp v. Beasley, 389 F.2d 178 (8th Cir. 1968) (Kemp II). It too was asserted to be educationally sound and devoid of racial considerations. However, we tested “freedom of choice” as applied in that particular instance and found it lacking; not by viewing it in the abstract, but rather by considering whether it effectively advanced the desegregation process. Our analysis in Kemp II was, of course, approved by the Green trilogy. And, only very recently we again found “freedom of choice” to be constitutionally deficient in Kemp III, supra. Although desegregation had been accomplished at the high school level by pairing and the junior high level by “freedom of choice,” application of “freedom of choice” to the elementary grades left 5 of the 10 schools racially identifiable. We ordered" }, { "docid": "17224925", "title": "", "text": "al., 246 F.2d 913, 914, C.A.5, the court said, at p. 914: “Neither that nor any other law can justify a violation of the Constitution of the United States by the requirement of racial segregation in the public schools. So long as that requirement continues throughout the public school system of Dade County, it would be premature to consider the effect of the Florida laws as to the assignment of pupils to particular schools.” See also, Mannings v. Board of Public Instruction of Hillsborough County, Florida, 277 F.2d 370, C.A.5. In Parham v. Dove, 271 F.2d 132, C.A. 8, the court required three Negroes, individually, who sought transfers to white schools to exhaust their administrative remedies. However, the court said, at p. 137: “In this field of constitutional paramountcy, a placement or assignment statute is entitled to be accorded recognition only as an implement or adjunctive element on the part of a state for effecting an orderly solution to its desegregation difficulties, in proper relationship to its other school-system problems, but with a subservience to the supreme-law declaration of the Brown cases as to all imposed segregation and the obligation owed to get rid thereof within the tolerance entitled to be allowed play under these decisions for accomplishing that result.” (Emphasis added.) This position was reaffirmed in Dove v. Parham, 282 F.2d 256, 261, C.A.8, where the court held that assignment and placement laws were “subordinate to the duty to move forward, by whatever means necessary, to correct the existing constitutional violation with ‘all deliberate speed’.” Opinions of the Fourth Circuit have been cited in support of the defendants’ position. We consider them, as did the Fifth Circuit. “Obviously, unless some legally nonsegregated schools are provided, there can be no constitutional assignment of a pupil to a particular school. We do not understand that the Fourth Circuit has ruled to the contrary. The net effect of its rulings, as we understand them, is that the desegregation of the public schools may occur simultaneously with and be accomplished by the good faith application of the law providing for the assignment of" }, { "docid": "17114091", "title": "", "text": "steps will be taken toward the elimination of segregation of teaching and staff personnel: “1. The pre-school in-service countywide teachers meetings will be held on a completely integrated basis. 2. All countywide staff meetings will be completely integrated. 3. All in-service classes will be open to all teachers regardless of race, color or national origin. “B. This school system will not demote or refuse to re-employ principals, teachers, and other staff members who serve pupils on the basis of race, color or national origin. Any reduction in staff which may be required as a result of a decrease in enrollment will be accomplished without regard to race, color or national origin.” The school board has prefaced its plan by stating it has adopted a policy of complete freedom of choice for assignments. Freedom of choice is a term frequently used when speaking of school desegregation. It has several meanings which should not be confused. It may refer to enrollment of pupils in segregated schools with the aid of state tuition grants in preference to attendance at public desegregated schools. See Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 222, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Dure, Individual Freedom versus “State Action,” 38 Va.Q.Rev. 400 (1962); Dillard, Freedom of Choice and Democratic Values, 38 Va.Q.Rev. 410 (1962). In its plan the county uses the phrase, “freedom of choice,” in an entirely different context. It employs the term to describe its method of assigning pupils to the public schools. The phrase probably was adopted from, “A General Statement of Policies under Title VI of the Civil Rights Act of 1964 Respecting Desegregation of Elementary and Secondary Schools,” published by the Department of Health, Education and Welfare. The term freedom of choice has been used to describe various methods of assigning pupils. One method initially assigns pupils on a racial basis and allows freedom of choice to transfer from the initial assignment. This system of assignment is not sanctioned in this Circuit. In Bradley v. School Board of the City of Richmond, Va., 345 F.2d 310, 319 (4th" }, { "docid": "2761705", "title": "", "text": "can be taken to effect faculty and staff desegregation.” It recommends: (1) encouragement of voluntary transfers from majority to minority staff situations, and (2) vacancies, when possible, to be filled by qualified and competent teachers to effect racial balance. Only if these steps were to fail did we refer staff desegregation to Board assignment. Our suggestions in Kelley, repeated here, are not rigid ones. Local conditions may command different considerations. However, it is not enough to file a plan only incorporating the policy statements set out in Clark and Yarbrough. A plan should not only specify “a positive commitment to a reasonable program”; it should also state what that program is. This embodies (1) the steps to be carried out, and (2) the time schedule to be followed in doing so. Cf. Bowman v. County School Bd., 4 Cir., 382 F.2d 326, 328 n. 4. Appellees urge in their brief: “[Transition is complete when the authorities of the district have made clear their commitment to handling this phase of their operations on a non-racial basis, and have confirmed their announced ‘good intentions’ by affirmatively breaking the pre-exist-ing racial pattern of faculty assignments. * * * racial balance is no more mandated by the Constitution for public school faculties than it is for the student bodies. The mandate is ending state-imposed segregation based on racial classification.” This rationale adopts the earlier Fourth Circuit view in Bradley v. School Bd., 345 F.2d 310, 320 (1965), when it said: “The possible relation of a reassignment of teachers to protection of the constitutional rights of pupils need not be determined when it is speculative. When all direct discrimination in the assignment of pupils has been eliminated, assignment of teachers may be expected to follow the racial patterns established in the schools.” This view was promptly rejected and the case reversed by the Supreme Court. Bradley v. School Bd., 382 U.S. 103, 105, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965). Appellees’ argument that racial balance is not mandated demonstrates continued misconstruction of their constitutional obligation under Brown, as interpreted by this Court in Kemp, Clark," } ]

[ { "docid": "13242688", "title": "", "text": "USCMA 44, 17 CMR 44 (1954), a rear admiral assigned by the Bureau of Personnel as a permanent court member acted as a president of a general court-martial. He prepared the fitness report of permanent court members, his rating being based primarily upon their court performance. The danger of infringement on other court members’ right to act freely, brought about by the unusual nature of this type of fitness report, was one of several reasons for reversing that accused’s conviction. In United States v Hayes, 7 USCMA 477, 479, 22 CMR 267 (1957), a conviction was sustained, although the trial counsel, as the staff judge advocate, was the defense counsel’s superior and rating officer. Since civilian counsel conducted Hayes’s defense, the Court found no improper influence. The opinion did state, however, that: “. . . [I]n certain circumstances the official relationship between the two [military counsel] might adversely affect the freedom of action of the subordinate and seriously circumscribe his professional judgment.” This observation follows the views expressed in Blackburn and Moore, both supra. Neither the Uniform Code of Military Justice nor the Manual for Courts-Martial, United States, 1969 (Revised edition), prohibits the relationship that is the issue in this case. Congress has recently considered the safeguards it considers appropriate as a result of the defense counsel’s being a member of a military organization, in which status his performance must be evaluated for the purpose of his advancement or elimination from service. The Military Justice Act of 1968 added this subsection to Article 37, Uniform Code of Military Justice, 10 USC § 837: “(b) In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or" } ]

[ { "docid": "23513279", "title": "", "text": "INVALID PREMISE (No Reasonably Possible Perception That Appellate Judges Shape Their Opinions Because of Fitness Reports) Appellant’s second supposition supporting his due process claim is that a reasonable person or observer might perceive that appellate military judges generally shape their judgments to secure better fitness reports from the JAG or AJAG. Such an argument implies that the appellate decisions of these military judges can be reasonably viewed as an appropriate subject for a Naval officer fitness report. We reject both contentions as a matter of law. United States v. Graf and United States v. Mabe, both supra at 135. The above argument is simply not justified in view of the realities of our present military justice system. Three reasons support our conclusion. First, the challenged decision of the Court of Military Review in this case was handed down in May of 1993. Its judicial action occurred long after our decisions in United States v. Mabe, 33 MJ 200 (1991), and United States v. Graf, 35 MJ 450 (1992), cert. denied, — U.S. -, 114 S.Ct. 917, 127 L.Ed.2d 206 (1994), which expressly prohibit the Judge Advocate General or his designee’s use of fitness reports to control the findings- and-sentencing decisions of military judges. Second, not a shred of evidence has been presented to this Court that the Judge Advocate General or his Assistant for Military Law have disregarded these decisions with respect to the fitness reports on the appellate military judges involved in this ease. See also United States Navy-Marine Corps Court of Military Review (hereafter NMCMR) v. Carlucci, 26 MJ 328, 336 (CMA 1988) (military judges subject to ABA Code of Judicial Conduct). Third, review of the opinions of the Court of Military Review judges in this ease reveal that none of those judges actually believed that their fitness reports could be used to evaluate their findings-and-senteneing decisions. Cf. United States v. Deain, 5 USCMA 44, 53, 17 CMR 44, 53 (1954). Thus, accepting, arguendo, existence of the possibility of a reasonable perception of prosecutorial bias on the part of JAG or AJAG, we unequivocally conclude that it is" }, { "docid": "22233884", "title": "", "text": "in accordance with Article 26(b), Uniform Code of Military Justice, 10 USC § 826(b); sworn in accordance with Article 42(a), UCMJ, 10 USC § 842(a); and detailed to this case. The appellate military judges in this case were Senior Judge James A. Freyer, a Navy Captain; Senior Judge Richard A. Strickland, a Marine Colonel; and Judge James E. Orr, a Navy Captain. These judges constituted Panel No. 1 of the Court of Military Review, and they reviewed appellant’s case in accordance with that court’s internal rules. The issue of law raised by appellate defense counsel and granted by this Court focuses on the “designation]” of the military judge who tried his case and the “designation]” of the military appellate judges who heard his appeal. Appellant does not contend that these designations were accomplished in violation of the Uniform Code of Military Justice. Instead, he contends that they were not accomplished in accordance with the Appointments Clause of the United States Constitution. Art. II, § 2, para. 2, el. 2. Relying heavily on the recent Supreme Court decision in Freytag v. C.I.R., supra, he asserts that military judges “are ‘Officers of the United States’ ” who must be “appointed as such by the President, the Courts of Law, or the Head of a Department.” Final Brief at 10. Finally, he asserts that the designation of these military judges by the Judge Advocate General of the Navy fails to satisfy this constitutional appointment standard. II The Statutes Establishing The Military Judge A necessary step in resolving the granted issue is to understand the statutes which create the military trial and appellate judges and provide for persons to fill these judicial positions. At the outset I note that Congress has not expressly provided that a person be “appointed” a military trial judge or appellate judge. However, in the version of the Uniform Code of Military Justice enacted in 1950, Congress did provide for “appoint[mentj” of a law officer, the statutory predecessor of the military judge, by appropriate convening authorities. See Art. 26(a), UCMJ, 50 USC § 590(a), recodified in 10 USC § 826(a)" }, { "docid": "23513262", "title": "", "text": "general responsibility includes, inter alia, receiving cases from the field and preparing them for review by this Court and by the Court of Military Appeals; issuing mandates and orders di- ‘ rected by the appellate courts; and supervising appellate counsel for the appellants and the Government. 37 MJ at 905-06 (emphasis added). INTRODUCTION This is the third of three recent cases in which a major facet of the military justice system has been challenged. United States v. Weiss, 36 MJ 224 (CMA 1992), aff'd, — U.S. -, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994) (appointment of military judges and terms of office for military judges); see United States v. Graf, 35 MJ 450 (CMA 1992), cert. denied, — U.S.-, 114 S.Ct. 917,127 L.Ed.2d 206 (1994). Today, this Court holds’ that Naval regulations requiring officer-fitness reports for appellate military judges do not abrogate the Fifth Amendment; Article 37, UCMJ, 10 USC § 837; or RCM 902, Manual for Courts-Martial, United States, 1984. See generally United States v. Mate, 33 MJ 200 (CMA 1991). All these eases are significant because they show that the process which Congress has devised to permit challenges to our system works. Courageous and competent military defense counsel are bringing these challenges at the trial level. The same courage and expertise has also been shown at the appellate level. In addition, this Court has not summarily denied review in these cases, using our discretionary review power. Art. 67(a)(3), UCMJ, 10 USC § 867(a)(3)(1989). Finally, the Supreme Court has recognized the importance of the Constitutional rights of servicemembers by granting certiorari in two of these cases. As Justice Ginsburg observed in her separate opinion in Weiss: “[M]en and women in the Armed Forces do not leave constitutional safeguards and judicial protection behind when they enter military service.” — U.S. -, 114 S.Ct. at 769. I DEFENSE CLAIM Appellant’s case was reviewed by the Navy-Marine Corps Court of Military Review in accordance with Article 66 of the Code. He asserts that the Due Process Clause of the Fifth Amendment requires that such a judicial review be done by a court" }, { "docid": "22585339", "title": "", "text": "have a fixed term of office of any length in order to independently perform his duties. However, it has held that the Due Process Clause of the Fifth Amendment does not require tenure during good behavior for such judges. See Palmore v. United States, 411 U.S. 389, 410, 93 S.Ct. 1670, 1682, 36 L.Ed.2d 342 (1973). In view of other guarantees of independence provided for military trial judges in the Uniform Code of Military Justice, noted below, we further hold that court-martial judges can independently and fairly perform their duties without protection of a fixed term of office. In reality, the Uniform Code of Military Justice provides substantial independence and protection for military judges, both trial and appellate, despite their subordinate position in the military hierarchy. First, it provides for an administrative method of complaint against interfering superiors within the uniformed service itself, which ultimately requires the attention of the civilian secretary of that service. Art. 138, UCMJ, 10 USC § 938. Second, it provides for the preferral of charges and possible court-martial of any servicemember, whatever his grade or rank, who influences or attempts to influence a judge’s findings or sentencing decisions at courts-martial. Art. 98, UCMJ, 10 USC § 898. See Art. 37. Finally, in extraordinary cases where the above remedies are not adequate, resort to this Court under the All Writs Act, 28 USC § 1651(a), is possible. See NMCMR v. Carlucci, 26 MJ 328; see also Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300; Bozin v. Secretary of the Navy, 657 F.Supp. 1463. While invocation of any of these procedures as weapons to maintain judicial independence may incur some hostility, official retaliation as a result of their utilization cannot and will not be tolerated. See Commission Report, supra at 9. Our third concern is whether Supreme Court precedents suggest that military judges serving without fixed terms of office somehow offend traditional notions of fundamental fairness. We think not. In this regard we note that, prior to 1968 and the creation of the military judge, the Su preme Court was well aware that the military justice" }, { "docid": "23513289", "title": "", "text": "Corp., supra. The test is whether a reasonable person who knew all the facts might question these appellate military judges’ impartiality. See United States v. Kincheloe, 14 MJ 40, 50 (CMA 1982); United States v. Couch, 896 F.2d at 82. See also Bradshaw v. McCotter, 785 F.2d 1327 (5th Cir.1986), modified in part, 796 F.2d 100 (5th Cir.1986). Moreover, this Court, in addressing similar appearance questions, has repeatedly recognized that we cannot close our eyes to “everyday, even necessary eircumstance[s] in the life of Judge Advocate General Corps Officers.” See United States v. Hurt, 9 USCMA 735, 754, 27 CMR 3, 22 (1958). See also Weiss v. United States, — U.S. at-, 114 S.Ct. at 760, citing Middendorf v. Henry, 425 U.S. at 43, 96 S.Ct. at 1291. rv REASONS FOR DENYING MANUAL CLAIM In considering the import of the Court of Military Review Judges’ comments for purposes of RCM 902(a), we initially note that they fall far short of the required finding for disqualification. The judges below only acknowledged that a reasonable argument could be made that the administration of the fitness-report system in and of itself is “inappropriate.” They did not find, however, that a reasonable person knowing all the facts and circumstances about that system could question their impartiality or independence in reviewing appellant’s ease. In addition, for the salient reasons stated in United States v. Graf, swpra, we hold that a reasonable person could not question the impartiality of the appellate military judges in this ease. The first fact or circumstance of which a reasonable observer would be aware is that he is assessing the impact or possible impact of this fitness-report system on a military judge. See Art. 26(c), UCMJ, 10 USC § 826(c). The latter is a military officer who has sworn to do his duty under law, see 5 USC § 3331, and has taken an oath to dispense justice “impartially,” see Art. 42(a), UCMJ, 10 USC § 842(a); RCM 807(b)(2), Discussion. See also United States v. Hubbard, 20 USCMA 482, 43 CMR 322 (1971) (defense counsel not disqualified because fitness-report endorser was" }, { "docid": "1190670", "title": "", "text": "the witness’ opinion of appellant’s lack of military rehabilitative potential. As noted above, I agree that this is a valid sentencing consideration at a court-martial as a component of the accused’s “character and potential” in general. See United States v. Horner, supra at 296; United States v. Ohrt, supra at 303. I also would hold that this particular comment directly and rationally relates to this sentencing concern. It provides a particular insight into the accused’s personal circumstances in the military context. See United States v. Vandelinder, 20 MJ 41, 44-45 (CMA 1985). This type of opinion testimony, either for or against a military accused, is not something new in the military justice system. See United States v. Vogel, 17 USCMA 198, 199, 37 CMR 462, 463 (1967); United States v. Guy, 17 USCMA 49, 37 CMR 313 (1967); United States v. Robbins, 16 USC-MA 474, 477-78, 37 CMR 94, 97-98 (1966). The above-cited cases make clear that such testimony could be introduced by an accused to show his character and thus mitigate his punishment awarded at a court-martial. See generally para. 75c(4), Manual for Courts-Martial, United States, 1951. See also United States v. Barfield, 22 USCMA 321, 46 CMR 321 (1973). Moreover, if the defense opened the door on this issue, the prosecution was entitled to introduce unfavorable opinion testimony as a matter in rebuttal. See United States v. Blau, 5 USCMA 232, 241-44, 17 CMR 232, 241-44 (1954). RCM 1001(b)(5) changed this practice only to the extent that it permitted the prosecution sua sponte to introduce character testimony in sentencing rather than simply respond to defense proffers on this issue. See Drafters’ Analysis of RCM 1001(b)(5), 1984 Manual, supra at A21-64 (Change 3). Accordingly, the challenged testimony of Captain Cozart was relevant to a valid sentence consideration. In my view, the President in promulgating RCM 1001(b)(5), see Art. 36(a), UCMJ, 10 USC § 836(a), clearly authorized a person who has sufficient knowledge of the accused and his military service to come into a court-martial and state his or her opinion of the past work record and the future work" }, { "docid": "23513280", "title": "", "text": "917, 127 L.Ed.2d 206 (1994), which expressly prohibit the Judge Advocate General or his designee’s use of fitness reports to control the findings- and-sentencing decisions of military judges. Second, not a shred of evidence has been presented to this Court that the Judge Advocate General or his Assistant for Military Law have disregarded these decisions with respect to the fitness reports on the appellate military judges involved in this ease. See also United States Navy-Marine Corps Court of Military Review (hereafter NMCMR) v. Carlucci, 26 MJ 328, 336 (CMA 1988) (military judges subject to ABA Code of Judicial Conduct). Third, review of the opinions of the Court of Military Review judges in this ease reveal that none of those judges actually believed that their fitness reports could be used to evaluate their findings-and-senteneing decisions. Cf. United States v. Deain, 5 USCMA 44, 53, 17 CMR 44, 53 (1954). Thus, accepting, arguendo, existence of the possibility of a reasonable perception of prosecutorial bias on the part of JAG or AJAG, we unequivocally conclude that it is not reasonable to further perceive that fitness reports of appellate military judges can be used to evaluate their judicial decisions. D INADEQUATE CIVILIAN CONSTITUTIONAL CLAIM Appellant broadly asserts that the Naval officer fitness-report system creates a constitutionally unacceptable appearance of impropriety with respect to the appellate review of his case by military judges. Even if we applied the civilian Constitutional standard for determining an unfair tribunal to this claim, we would find it to be without merit. He has simply not persuaded us that his reasonable man perceptions concerning the Naval officer fitness-report system created a constitutionally impermissible risk that his case was decided unfairly by his appellate military judges. See generally Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 820-25, 106 S.Ct. 1580, 1584-87, 89 L.Ed.2d 823 (1986) (defining constitutionally impermissible risk of unfairness to parties). Cf. Liljeberg v. Health Service Acquisition Corp., 486 U.S. at 858-62, 108 S.Ct. at 2201-04 (defining statutorily impermissible risk of injustice to the parties). The Supreme Court has provided general guidance in determining when the appearance of" }, { "docid": "12129034", "title": "", "text": "by a senior member’s role in the preparation of efficiency reports. I do not recall having heard a single allegation that an efficiency report has been downgraded as a result of service as a court-martial member. Indeed, the congressional hearings giving rise to the Uniform Code of Military Justice prove that a driving force behind the creation of the Code was to eliminate such coercion. Article 37(b), UCMJ, 10 U.S.C. § 837, reflects this concern. SULLIVAN, Judge (concurring with reservations): I concur with the holdings and the text of the majority opinion. However, since the footnote is personal in nature, I do not adopt it. EVERETT, Chief Judge (concurring in part and dissenting in part): I In United States v. Deain, 5 U.S.C.M.A. 44, 17 C.M.R. 44 (1954), this Court invalidated an arrangement whereunder a Navy Admiral served as permanent president of a general court-martial and submitted to the convening authority fitness reports on two other members of the court-martial. Although we expressed doubt that the impartiality of a court-martial member would be negated simply because one was “the normal reporting senior of the other,” id. at 52, 17 C.M.R. at 52, we concluded that, under the circumstances, the “freedom and independence of action” of the two members had been unduly threatened. Therefore, the findings and sentence were “set aside”; and, in “the interests of justice,” the charges were dismissed. Id. at 53, 17 C.M.R. at 53. In 1968, as a result of congressional concern about the possible use “of an effectiveness, fitness, or efficiency report” to influence the action of court members, Article 37 of the Code, 10 U.S.C. § 837, was amended to prohibit consideration of “the performance of duty of any” person “as a member of a court-martial” in preparing such a report on that person. Art. 37(b); Pub.L.No. 90-632, § 2(13)(D), 82 Stat. 1338. Moreover, in order to assure that the judges of Courts of Military Review would retain their independence, Congress amended Article 66(g) of the Code, 10 USC § 866(g), to prohibit a “member of a Court of Military Review” from “prepar[ing] ... or" }, { "docid": "23513295", "title": "", "text": "a vehicle to protect the professional reputation of military attorneys involved in command-influence cases. Moreover, it is not designed to implement or facilitate the routine bureaucratic functioning of the officer’s fitness report system. These are responsibilities of the Judge Advocate Gen eral of the Navy. Art. 26(c), Uniform Code of Military Justice, 10 USC § 826(c). Our duty is to insure that servicemembers receive a fair court-martial in accordance with law. Art. 67, UCMJ, 10 USC § 867. (Emphasis added). . Of course, there is another forum in which consideration of these concerns is especially appropriate, i.e., Congress. After all, it is specifically authorized to “make Rules for the Government and Regulation of the land and naval Forces.” U.S. Const, art. I, § 8, cl. 14. Moreover, in the past it has considered and remedied some of the very problems now raised with respect to fitness reports of appellate military judges. For example, Article 66(g) states: (g) No member of a Court of Military Review shall be required, or on his own initiative be permitted, to prepare, approve, disapprove, review, or submit, with respect to any other member of the same or another Court of Military Review, an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the armed forces, or in determining whether a member of the armed forces should be retained on active duty. (Emphasis added.) Finally, the President acting pursuant to Article 6a, UCMJ, 10 USC § 806a (1989), might also consider these concerns. Article 6a provides: § 806a. Art. 6a. Investigation and disposition of matters pertaining to the fitness of military judges (a) The President shall prescribe procedures for the investigation and disposition of charges, allegations, or information pertaining to the fitness of a military judge or military appellate judge to perform the duties of the judge’s position. To the extent practicable, the procedures shall be uniform for" }, { "docid": "11265171", "title": "", "text": "findings as well as on sentence. Art. 37(a). This coercion results from the well-recognized effect of fitness-report evaluations on a military lawyer’s service advancement and security. See generally Sanders v. United States, 594 F.2d 804, 814, 219 Ct.Cl. 285 (1979); see, e.g., Muse v. United States, 21 Cl.Ct. 592, 603 (1990). See Wiener, The Army’s Field Judiciary System: A Notable Advance, 46 A.B.A.J. 1178,1180 (Nov.1960); Fidell, Military Judges and Military Justice: The Path to Judicial Independence, 37 Fed. Bar News and Journal 346, 351 (1990). Finally, it permits de facto disciplinary sanction of a judge for mere error or decisional unpopularity, a practice not otherwise accepted in American jurisprudence. See J. Shaman, S. Lubet, and J. Alfini, Judicial Conduct and Ethics 5-8, 22-27, 93-96 (1990). We have examined the legislative history of the 1968 amendments to the Uniform Code and are convinced that Congress did not create or intend to create such a judicial sham. See S.Rep. No. 1601, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.Code Cong. & Admin.News 4501. See generally United States Navy-Marine Corps Court of Military Review v. Carlucci, 26 MJ 328, 336 (CMA 1988). The minority’s view of the military judge’s status in the military justice system also conflicts with other sections of the Uniform Code of Military Justice and our case law applying the same. First, the authorities relied on by these judges do not similarly support such control on sentencing by members. Art. 16(1)(A) and (2)(A) and (B), UCMJ, 10 USC § 816(1)(A) and (2)(A) and (B). See United States v. Deain, 5 USCMA 44, 17 CMR 44 (1954). Thus, the integrity and reliability of a military accused’s sentence would vary depending on the forum selected by him in total ignorance of this unknown judicial regulation. Such an intrinsically contradictory system of law would be neither uniform nor just. Second, such sentencing control conflicts with Congress’ express delegation of the authority to set sentencing limits to the President in Article 56, UCMJ, 10 USC § 856. See also Art. 6a, UCMJ, 10 USC § 806a (1989). The absence of any recognition of" }, { "docid": "23513291", "title": "", "text": "trial counsel). Cf. United States v. Deain, 5 USCMA 44, 52-53, 17 CMR 44, 52-53 (1954) (permanent members of court-martial panel disqualified because president of panel prepared fitness reports on that duty). Surrender to such a temptation would not only constitute a judicial ethical violation but it could also expose these military officers to criminal liability under the Uniform Code of Military Justice. Arts. 92(1) and 133, UCMJ, 10 USC §§ 892(1) and 933, respectively. See United States v. Graf, 35 MJ at 463; NMCMR v. Carlucci, 26 MJ at 336. The second fact or circumstance that a reasonable observer would be aware of is that the fitness report, no matter who it was prepared by or signed by, could not consider the judge’s findings or sentencing decisions. United States v. Graf, 35 MJ at 465; United States v. Mabe, supra; see Weiss v. United States, — U.S. at-n. 7, 114 S.Ct. at 763 n. 7; see also United States v. Martinez, 11 USCMA 224, 29 CMR 40 (1960). In the absence of some evidence to the contrary, we must presume not only that the Judge Advocate General and his assistant know the law but also that they follow it. E.g., United States v. Mabe, 33 MJ at 206. See generally Withrow v. Larkin, 421 U.S. at 47, 95 S.Ct. at 1464 (“presumption of honesty and integrity in those serving as” administrative investigators and “adjudicators”). Accordingly, even if prosecutorial bias actually existed on the part of the JAG or AJAG, there is no reason to expect it might be exercised through the fitness-report system. The third fact or circumstance known to the reasonable observer is that the appellate military judge has viable remedies to protect himself from untoward influence of the Judge Advocate General or his subordinate. United States v. Graf, supra at 463. None of the appellate military judges availed himself or attempted to avail himself of these remedies with respect to appellant’s case or with respect to the performance of his judicial duties while that case was pending. Cf. NMCMR v. Carluccy supra. Moreover, no Court of Military" }, { "docid": "11265169", "title": "", "text": "military supervisory authority. In particular, they assert that his Memorandum was the functional equivalent of a fitness report and that its comments on sentencing were appropriate matters in the routine judicial evaluation of a military judge. Moreover, they found that his reference to “grumblings in the Med” was a legitimate consideration for the designee of the Judge Advocate General of the Navy in forming his assessment of a military judge’s “Judgment” and “Navy Organizational Support.” 30 MJ at 1272. Judicial independence, they contend, means independence from command, not the Judge Advocate General or his designee, i.e., the Chief of the Navy-Marine Corps Trial Judiciary. Id. at 1270. The bottom line of their opinion is that the sentencing process at judge-alone courts-martial not only can but must be controlled by the Judge Advocate General or his designee, i.e., the Chief Judge of the Trial Judiciary. This assertion rests on the language of Article 26(c), UCMJ, 10 USC § 826(c) ; the decision of this Court in United States v. Moorehead, 20 USCMA 574, 578, 44 CMR 4, 8 (1971); and service regulations concerning officer fitness reports in the Navy-see generally NAVMIL-PERSCOM INST 1611.1 (12 May 1981). 30 MJ at 1269-70, 1272. The method of control or direction preferred in the opinion concurring in the result is the fitness-report system for the officer-judges, although formalism is not required and more informal vehicles such as the letter-memorandum at issue in this case will suffice. Even if this method of control is unauthorized, the two judges in the minority assert that the lack of specificity in the memorandum with respect to appellant’s case pre eludes a conclusion that Article 37(a) was violated. We unequivocally reject this admittedly “personal” view of the military justice system and its concomitant undermining of the independence of the military judge. It improperly reduces the court-martial judge, already without tenure, to the status of a mere alter-ego of the Judge Advocate General or his designee. See United States v. Ledbetter, 2 MJ 37, 42 (CMA 1976). Moreover, it impermissibly authorizes judge advocate command coercion of the military judge’s decisions on" }, { "docid": "11265172", "title": "", "text": "States Navy-Marine Corps Court of Military Review v. Carlucci, 26 MJ 328, 336 (CMA 1988). The minority’s view of the military judge’s status in the military justice system also conflicts with other sections of the Uniform Code of Military Justice and our case law applying the same. First, the authorities relied on by these judges do not similarly support such control on sentencing by members. Art. 16(1)(A) and (2)(A) and (B), UCMJ, 10 USC § 816(1)(A) and (2)(A) and (B). See United States v. Deain, 5 USCMA 44, 17 CMR 44 (1954). Thus, the integrity and reliability of a military accused’s sentence would vary depending on the forum selected by him in total ignorance of this unknown judicial regulation. Such an intrinsically contradictory system of law would be neither uniform nor just. Second, such sentencing control conflicts with Congress’ express delegation of the authority to set sentencing limits to the President in Article 56, UCMJ, 10 USC § 856. See also Art. 6a, UCMJ, 10 USC § 806a (1989). The absence of any recognition of this sub rosa punishment control in the Manual for Courts-Martial strongly suggests its invalidity. See RCM 104(b)(2)(B), Manual for Courts-Martial, United States, 1984. Third, neither Article 26(c) nor the decision in United States v. Moorehead, supra, nor fitness-report regulations provide express recognition of this unusual sentencing-policy power in the Judge Advocate General or his designee. Finally, the Judge Advocate General of the Navy has not asserted such unlimited power in this case and, in fact, has acted in a manner totally inconsistent with the minority judges’ opinion. See also § 0165(c), Manual of the Judge Advocate General of the Navy (Change 5) (1986) ; RCM 109. The opinion below concurring in the result also particularly attacks the majority opinion because of its purported extrapolation of dicta from our opinion in United States v. Ledbetter, supra. We state again today that the fitness-report system cannot be used as a conduit for command complaints against judge-alone sentencing. We also conclude that the majority of the court below committed no legal error in finding for this reason that" }, { "docid": "17043345", "title": "", "text": "a legal officer shall review certain cases and provide a written recommendation to a convening authority concerning disposition. See RCM 1106(a). Congress has made clear that the staff judge advocate or a non-lawyer “legal officer” (see United States v. Curry, 28 MJ 419, 422 (CMA 1989)) who provides the post-trial recommendation must not be disqualified by prior participation in the case. Article 6(c), UCMJ, 10 USC § 806(c), states: No person who has acted as a member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case may later act as a staff judge advocate or legal officer to any reviewing authority upon the same case. (See also Art. 64(a), UCMJ, 10 USC § 864(a)(1983); RCM 1106(b).) Although we have not declared recommendations prepared by a disqualified officer void, we have strictly applied this statute in light of its purpose “to assure the accused a thoroughly fair and impartial review.” See United States v. Lynch, 39 MJ at 228, citing United States v. Crunk, 4 USCMA 290, 293,15 CMR 290, 293 (1954); see also United States v. Jeter, 35 MJ 442 (CMA 1992). The first question we will address is whether the Court of Criminal Appeals was correct in applying the plain-error doctrine. It made a predicate finding of waiver of the right to challenge the post-trial recommendation on the basis of defense counsel’s failure to object at the time of the post-trial recommendation to LCDR Small’s participation as legal officer. However, waiver entails the “intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993); quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,1023, 82 L.Ed. 1461 (1938). Here, it is unrebutted that defense counsel did not become aware of the full extent of LCDR Small’s involvement until after trial and completion of the post-trial recommendation. A finding of waiver of appellant’s right to challenge the recommendation is not appropriate where defense counsel was not fully aware of the circumstances of disqualification. See also United States" }, { "docid": "23513290", "title": "", "text": "be made that the administration of the fitness-report system in and of itself is “inappropriate.” They did not find, however, that a reasonable person knowing all the facts and circumstances about that system could question their impartiality or independence in reviewing appellant’s ease. In addition, for the salient reasons stated in United States v. Graf, swpra, we hold that a reasonable person could not question the impartiality of the appellate military judges in this ease. The first fact or circumstance of which a reasonable observer would be aware is that he is assessing the impact or possible impact of this fitness-report system on a military judge. See Art. 26(c), UCMJ, 10 USC § 826(c). The latter is a military officer who has sworn to do his duty under law, see 5 USC § 3331, and has taken an oath to dispense justice “impartially,” see Art. 42(a), UCMJ, 10 USC § 842(a); RCM 807(b)(2), Discussion. See also United States v. Hubbard, 20 USCMA 482, 43 CMR 322 (1971) (defense counsel not disqualified because fitness-report endorser was trial counsel). Cf. United States v. Deain, 5 USCMA 44, 52-53, 17 CMR 44, 52-53 (1954) (permanent members of court-martial panel disqualified because president of panel prepared fitness reports on that duty). Surrender to such a temptation would not only constitute a judicial ethical violation but it could also expose these military officers to criminal liability under the Uniform Code of Military Justice. Arts. 92(1) and 133, UCMJ, 10 USC §§ 892(1) and 933, respectively. See United States v. Graf, 35 MJ at 463; NMCMR v. Carlucci, 26 MJ at 336. The second fact or circumstance that a reasonable observer would be aware of is that the fitness report, no matter who it was prepared by or signed by, could not consider the judge’s findings or sentencing decisions. United States v. Graf, 35 MJ at 465; United States v. Mabe, supra; see Weiss v. United States, — U.S. at-n. 7, 114 S.Ct. at 763 n. 7; see also United States v. Martinez, 11 USCMA 224, 29 CMR 40 (1960). In the absence of some evidence" }, { "docid": "23513261", "title": "", "text": "the preparation of the judges’ fitness reports, an explanation of his duties is in order. He is generally responsible to the JAG for performance of the JAG’s military justice duties under the UCMJ, the Manual for Courts-Martial (MCM), and Judge Advocate General Instruction 5800.7C of 3 October 1990 (JAGMAN). OJAG Organization Manual, § 107. In this capacity he supervises the Director, Criminal Law Division, and is responsible for that officer’s performance of his duties. Id. The duties of the Director, Criminal Law Division, include drafting legal and policy .advice for the JAG on military justice matters; reviewing legislative and regulatory proposals affecting military justice; reviewing all decisions of military appellate courts for systemic malfunction; staffing JAG certification of issues for appellate review; and providing timely guidance to all military justice practitioners in the Department of the Navy. Id. The AJAG also serves as the Offieer-in-Charge, Navy-Marine Corps Appellate Review Activity (ÑAMARA). In that capacity, he is responsible to the JAG for the administrative processing of courts-martial under Articles 66, 67, 69 and 73, UCMJ. This general responsibility includes, inter alia, receiving cases from the field and preparing them for review by this Court and by the Court of Military Appeals; issuing mandates and orders di- ‘ rected by the appellate courts; and supervising appellate counsel for the appellants and the Government. 37 MJ at 905-06 (emphasis added). INTRODUCTION This is the third of three recent cases in which a major facet of the military justice system has been challenged. United States v. Weiss, 36 MJ 224 (CMA 1992), aff'd, — U.S. -, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994) (appointment of military judges and terms of office for military judges); see United States v. Graf, 35 MJ 450 (CMA 1992), cert. denied, — U.S.-, 114 S.Ct. 917,127 L.Ed.2d 206 (1994). Today, this Court holds’ that Naval regulations requiring officer-fitness reports for appellate military judges do not abrogate the Fifth Amendment; Article 37, UCMJ, 10 USC § 837; or RCM 902, Manual for Courts-Martial, United States, 1984. See generally United States v. Mate, 33 MJ 200 (CMA 1991). All these eases" }, { "docid": "7250495", "title": "", "text": "concur. Judges CRAWFORD, GIERKE, and WISS did not participate. . At his court-martial, appellant was acquitted by the members of specifications alleging rape of MB; indecent assault upon MB; attempted sodomy with MB; and disobedience of a lawful order by driving an official government vehicle within 8 hours after consuming alcoholic beverages, in violation of Articles 120, 134, 80, and 92, Uniform Code of Military Justice, 10 USC §§ 920, 934, 880, and 892, respectively. The court-martial convicted appellant, contrary to his pleas, of five specifications of conspiracy: (1) to commit adultery with MB; (2) to commit wrongful sexual intercourse with KH and DJ; (3) to commit wrongful purchase and delivery of alcoholic beverages to minors; (4) to disobey a lawful order by driving a government vehicle for matters of personal convenience; and (5) to disobey a lawful order by driving a government vehicle after drinking alcoholic beverages. (Art. 81, UCMJ, 10 USC § 881). We note that the court-martial order (number 12-89) fails to state these specifications separately. In addition, the court-martial convicted appellant, contrary to his pleas, of separate specifications of disobeying a lawful order by driving a government vehicle for matters of personal convenience; committing sodomy with DJ (the basis of the granted issue); false swearing; wrongful purchase and delivery of alcoholic beverages to minors in violation of state law; and wrong fully having sexual intercourse with DJ, KH and MB. Arts. 92, 125, and 134, UCMJ, 10 USC §§ 892, 925, and 934, respectively. The Court of Military Review set aside appellant’s conviction of wrongfully having sexual intercourse and dismissed that specification. Recognizing that \"fornication is not prohibited under military law, or apparently, the laws of the Commonwealth of Massachusetts,\" the court found the other circumstances of the case insufficient to convert lawful conduct into criminal conduct under the general article. 32 MJ 941, 945 (1991). See United States v. Hickson, 22 MJ 146 (CMA 1986); United States v. Berry, 6 USC-MA 609, 20 CMR 325 (1956); United States v. Snyder, 1 USCMA 423, 4 CMR 15 (1952). In addition, that court, with government concession, set" }, { "docid": "22233909", "title": "", "text": "the chief judge may assign special trial judges to render the decisions of the Tax Court in declaratory judgment proceedings and limited-amount tax cases. The Commissioner concedes that in cases governed by subsections (b)(1), (2), and (3), special trial judges act as inferior officers who exercise independent authority. 501 U.S. at-, 111 S.Ct. at 2640 (emphasis added). The position of military judge is established by law. See Arts. 26 and 66, UCMJ, 10 USC §§ 826 and 866, respectively. The duties and functions of a person in this position are also established by statute. See Arts. 26, 39, 51, and 66, UCMJ, 10 USC §§ 826, 839, 851, and 866, respectively. The Code authorizes military judges to hear and determine motions on various pretrial, trial, and posttrial matters (see Art. 39(a)); rule on all questions of law and interlocutory questions at courts-martial (Art. 51(b)); and impose Federal convictions up to and including life in prison, punitive separations from the service, and substantial financial penalties (Arts. 16(1)(B) and 18, UCMJ, 10 USC §§ 816(1)(B) and 818, respectively). A judge sitting with court members also instructs them on the various matters necessary to reach appropriate findings and sentences, even in capital cases where a servicemember’s life is at stake. (Art. 51(c)). These are not ministerial tasks but judicial ones calling for the exercise of significant discretion. See United States v. Graf, 35 MJ 450; United States v. Cole, 31 MJ 270, 272 (CMA 1990). Finally, judges exercise independent authority. Art. 37, UCMJ, 10 USC § 837. See United States v. Graf, supra. In my view, the military trial judges and appellate military judges are “Officers of the United States,” as provided for in Article II, § 2 of the Constitution. VI The Constitutional Requirements for a Valid Appointment My next inquiry concerns the particular requirements provided in the Constitution for a valid appointment of “Officers of the United States.” The answer to this question in large part depends on whether a military judge is one of “all other Officers of the United States” or is one of the “inferior Officers” generally denominated" }, { "docid": "23513294", "title": "", "text": "of Military Review. Art. 66 of the Code. He is clearly entitled to such a review, independent both in fact and appearance, both as a matter of constitutional and military due process. See Aetna Life Insurance Co. v. Lavoie and United States v. Kincheloe, both supra; and RCM 902. Yet it is obvious to us that the judges of the Navy-Marine Corps Court of Military Review, at least those participating in appellant’s case, are concerned about the fairness of their treatment as professional military officers. We sense dissatisfaction in the Navy appellate judges with respect to their officer-fitness-report system. See.generally Noyd v. Bond, 395 U.S. 683, 695, 89 S.Ct. 1876, 1883, 23 L.Ed.2d 631 (1969). Nevertheless, our recognition of their complaints does not authorize this Court to employ our appellate powers to create, revamp, or eliminate the mihtary-officer-fitness-report system. We say again what we said in United States v. Mabe, 33 MJ at 206 n. 6: The two minority judges below misconstrue the purpose of appellate review in the military justice system. It is not a vehicle to protect the professional reputation of military attorneys involved in command-influence cases. Moreover, it is not designed to implement or facilitate the routine bureaucratic functioning of the officer’s fitness report system. These are responsibilities of the Judge Advocate Gen eral of the Navy. Art. 26(c), Uniform Code of Military Justice, 10 USC § 826(c). Our duty is to insure that servicemembers receive a fair court-martial in accordance with law. Art. 67, UCMJ, 10 USC § 867. (Emphasis added). . Of course, there is another forum in which consideration of these concerns is especially appropriate, i.e., Congress. After all, it is specifically authorized to “make Rules for the Government and Regulation of the land and naval Forces.” U.S. Const, art. I, § 8, cl. 14. Moreover, in the past it has considered and remedied some of the very problems now raised with respect to fitness reports of appellate military judges. For example, Article 66(g) states: (g) No member of a Court of Military Review shall be required, or on his own initiative be permitted," }, { "docid": "22585325", "title": "", "text": "judge’s designee. In addition, the Judge Advocate General of the Navy promulgated JAG Instruction 5813.4E (10 March 1986) to further implement the above regulations. The bottom line is that the circuit military judge, except in certain delineated cases reserved for the Chief of the Trial Judiciary, details trial judges to individual cases. See United States v. Allen, 31 MJ 572, 584, 586 (NMCMR 1990), affd, 33 MJ 209 (CMA 1991). Finally, the Uniform Code of Military Justice provides for establishment of procedures for handling complaints against military trial and appellate judges with respect to their fitness for duty as a judge. Article 6a, UCMJ, 10 USC § 806a (Nov. 29, 1989), states: § 806a. Art. 6a. Investigation and disposition of matters pertaining to the fitness of military judges (a) The President shall prescribe procedures for the investigation and disposition of charges, allegations, or information pertaining to the fitness of a military judge or military appellate judge to perform the duties of the judge’s position. To the extent practicable, the procedures shall be uniform for all armed forces. (b) The President shall transmit a copy of the procedures prescribed pursuant to this section to the Committees on Armed Services of the Senate and House of Representatives. Congress’ intent in this regard was to provide for establishment of rules on the fitness of military judges, which “to the extent consistent with the Uniform Code of Military Justice ... should emulate the standards and procedures that govern investigation and disposition of allegations concerning judges in the civilian sector.” H.R. Conf. Rep. No. 331, 101st Cong., 1st Sess. 659 (1989), reprinted in 1989 U.S.Code Cong. & Admin. News 838, 977, 1116. See United States Navy-Marine Corps Court of Military Review [hereafter NMCMR] v. Carlucci, 26 MJ 328 (CMA 1988). See also United States v. Mabe, 33 MJ 200. In view of the above, the Government is correct in asserting that the Uniform Code of Military Justice does not require a fixed term of office of any length for trial or appellate military judges. Appellate defense counsel, however, contends that this judicial protection is not" } ]

[ { "docid": "23496575", "title": "", "text": "with the ADA’s legislative history, thus, an individual’s disability must be assessed without regard to mitigating measures); Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996) (stating determination made without regard to mitigating measures without discussion or application), cert. denied, - U.S. -, 117 S.Ct. 1349, 137 L.Ed.2d 506 (1997); Fallacaro v. Richardson, 965 F.Supp. 87, 93 (D.D.C.1997) (“This Court finds that the EEOC’s ‘no mitigating measures’ interpretation is eminently reasonable, consistent with the language and purpose of the Rehabilitation Act, and supported by the legislative history of the ADA.”); Wilson v. Pennsylvania State Police Dep’t, 964 F.Supp. 898, 902-907 (E.D.Pa.1997) (expressly adopting EEOC guidance); Sarsycki v. United Parcel Serv., 862 F.Supp. 336, 340 (W.D.Okla.1994) (relying on EEOC interpretation as authoritative without discussion). . See Gilday v. Mecosta County, 124 F.3d 760, 767-68 (6th Cir.1997) (holding EEOC's interpretive guidance in conflict with statutory language and disability determinations should be made taking into consideration any mitigating measures) (2-1 decision); Cline v. Fort Howard Corp., 963 F.Supp. 1075, 1081 n. 6 (E.D.Okla.1997) (recognizing split of authority and determining that \"the better reasoned approach in the context of vision is one which evaluates the limitation with regard to the use and effectiveness of corrective devises”); Gaddy v. Four B Corp., 953 F.Supp. 331, 337 (D.Kan.1997) (\"EEOC Interpretive Guideline § 1630.2(j)’s pre-medicated perspective is in direct conflict with the ADA’s express statutory language....”); Moore v. City of Overland Park, 950 F.Supp. 1081, 1088 (D.Kan.1996) (same); Murphy v. United Parcel Serv., Inc., 946 F.Supp. 872, 881 (D.Kan.1996) (rejecting \"without” portion of § 1630.2(j) because \"plain language of the ADA conflicts with the EEOC’s Interpretive Guidance”); Schluter v. Industrial Coils, Inc., 928 F.Supp. 1437, 1445 (W.D.Wis.1996) (\"EEOC’s interpretation is in direct conflict with the language of the statute that requires plaintiffs in ADA cases to show that an impairment 'substantially limits' their lives.”); Coghlan v. H.J. Heinz Co., 851 F.Supp. 808, 813 (N.D.Texas 1994) (concluding \"EEOC interpretation requires that one not having a limitation be considered as having a disability even though the statutory language clearly requires substantial limitation\"); See also Ellison v. Software" } ]

[ { "docid": "1499", "title": "", "text": "we explained that according to the United States Equal Employment Opportunity Commission’s (EEOC) interpretive guidelines, whether an impairment “substantially limits” a major life activity should be evaluated “without regard to mitigating measures such as medicines, or assistive or prosthetic devices.” Id. at 937 (quoting 29 C.F.R. Pt. 1630, App. § 1630.2© at 348). We recognized that although the EEOC’s interpretive guidelines are not entitled to the same degree of deference as regulations, we give the EEOC’s interpretations “a great deal of deference since Congress charged the EEOC with issuing regulations to implement the ADA.” Id. We added that “we must give the EEOC’s interpretation of its own regulations ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation[s].’ ” Id. (quoting, Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 2386, 129 L.Ed.2d 405 (1994)). Legislative history reinforces the EEOC’s position and shows that Congress intended mitigating measures to be excluded from the evaluation of when an impairment substantially limits a major life activity: “[PJersons with impairments, such as epilepsy or diabetes, which substantially limit a major life activity are covered under the first prong of disability, even if the effects of the impairment are controlled by medication.” Id. (quoting H.R.Rep. No. 101-485(11), at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 334) See also H.R.Rep. No. 101-485(111), at 28 (1989), reprinted in 1990 U.S.C.C.A.N. 451; S.Rep. No. 101-116, at 23 (1989). We recognize that the Tenth Circuit has rejected this view and held that disabilities should be evaluated based on their'mitigated state. See Sutton v. United Air Lines, Inc., 130 F.3d 893, 902 (10th Cir.1997), cert. granted, — U.S. -, 119 S.Ct. 790, 142 L.Ed.2d 653 (1999). And we are aware that the Supreme Court has decided to review Sutton along with two similar cases. See Murphy v. United Parcel Service, 141 F.3d 1185 (10th Cir.1998)(unpub-lished table decision), cert. granted, — U.S. -, 119 S.Ct. 790, 142 L.Ed.2d 653 (1999); Kirkingburg v. Albertson’s Inc., 143 F.3d 1228 (9th Cir.1998), cert. granted, — U.S. -, 119 S.Ct. 791, 142 L.Ed.2d 654 (1999). Nonetheless, we remain firm in" }, { "docid": "21443716", "title": "", "text": "to qualify as “individuals with disabilities” under the ADA, but this result does not mean courts are applying a per se rule rather than an individualized analysis. F Finally, the majority of federal circuit courts that have considered this issue have followed the EEOC interpretation that ameliorative measures should not be considered in determining whether an impairment substantially limits an individual’s major life activities. See Matczak, 136 F.3d at 936-37; Doane v. City of Omaha, 115 F.3d 624, 627-28 (8th Cir.), cert. denied, — U.S.-, 118 S.Ct. 693, 139 L.Ed.2d 638 (1998); Harris, 102 F.3d at 520-21 (reviewing legislative history and concluding that the EEOC Interpretive Guidance is a permissible construction of the statute); Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1349, 137 L.Ed.2d 506 (1997); Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir.1995). But see Sutton v. United Air Lines, 130 F.3d 893, 902 (10th Cir.1997); Gilday v. Mecosta County, 124 F.3d 760, 767 (6th Cir.1997) (Kennedy, J., concurring in part and dissenting in part); id. at 768 (Guy, J., concurring in part and dissenting in part); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 191 n. 3 (5th Cir.1996) (dicta). UPS argues in its brief that these courts did not really follow the EEOC interpretation of-the law but rather “merely acknowledged the existence of the EEOC guidelines.” UPS is simply wrong. Matczak, Doane, Roth, and Harris do not merely “acknowledge” the “existence” of the guidelines. They state a principle of law — that ameliorative medications are not to be considered in determining whether an individual is disabled and therefore protected by the ADA from discrimination — and then cite the EEOC guidelines as one ground in support of this principle. See Matczak, 136 F.3d at 936-37; Doane, 115 F.3d at 627 (stating that “analysis of whether [plaintiff] is disabled does not include consideration of mitigating measures”); Roth, 57 F.3d at 1454; Harris, 102 F.3d at 521 (concluding that the EEOC’s interpretation is “firmly rooted in the ADA’s legislative history”). UPS is correct that the" }, { "docid": "21443715", "title": "", "text": "should apply. On the contrary, the EEOC regulations and guidelines emphasize the requirement that every person’s situation be treated individually. See Appendix to Part 1630, “Background” (observing that “[t]his ease-by-case approach is essential”); . 29 C.F.R. Part 1630, App. § 1630.2(j) (Determinations of “impairment” and “substantial limitation]” should be made “on a ease by case basis.”); id. (“Some impairments may be disabling for particular individuals but not for others.”). Again, the only question before us is whether the impairment whose effects are evaluated in this case-by-ease approach is the treated or the untreated medical condition. UPS’s argument blurs the distinction between our analytical process or methodology, on the one hand, and the substantive conclusion that results from that process. The EEOC’s reading of the statute does not become a per se rule simply because, when an individualized evaluation is applied to individuals who have a particular medical condition, the result will almost always turn out to be the same. For example, even under UPS’s reading of the statute, virtually all quadriplegics will probably be found to qualify as “individuals with disabilities” under the ADA, but this result does not mean courts are applying a per se rule rather than an individualized analysis. F Finally, the majority of federal circuit courts that have considered this issue have followed the EEOC interpretation that ameliorative measures should not be considered in determining whether an impairment substantially limits an individual’s major life activities. See Matczak, 136 F.3d at 936-37; Doane v. City of Omaha, 115 F.3d 624, 627-28 (8th Cir.), cert. denied, — U.S.-, 118 S.Ct. 693, 139 L.Ed.2d 638 (1998); Harris, 102 F.3d at 520-21 (reviewing legislative history and concluding that the EEOC Interpretive Guidance is a permissible construction of the statute); Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1349, 137 L.Ed.2d 506 (1997); Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir.1995). But see Sutton v. United Air Lines, 130 F.3d 893, 902 (10th Cir.1997); Gilday v. Mecosta County, 124 F.3d 760, 767 (6th Cir.1997) (Kennedy, J., concurring in" }, { "docid": "23554308", "title": "", "text": "the two claims for different reasons. Because Waddell does not address the district court's rationale for granting summary judgment on his Rehabilitation Act claim, we deem his appeal on that issue waived. In any event, because we evaluate claims brought under the Rehabilitation Act and the ADA under the same standards, Sutton v. Lader, 185 F.3d 1203, 1207-08 n. 5 (11th Cir.1999), our conclusion that Waddell is not otherwise qualified for his employment position is fatal to both his Rehabilitation Act and ADA claims. .Valley Forge also argues that Waddell has failed to establish that he is disabled because his asymptomatic HIV does not substantially limit one of his major life activities and because HIV is not a disability per se. See 42 U.S.C. § 12102(2)(A). Waddell alleges in his pleadings that HIV has substantially limited his intimate and sexual relationships, his participation in societal and community life, his ability to plan his life and care for himself, and his ability to travel. Even if we assume that these constitute major life activities, we cannot determine whether Waddell is substantially limited as to any of these, given that we have before us such a skeletal record on the issue. As to the disability per se issue, we recognize that some of our past cases suggest in dicta that HIV should be treated as a per se disability. See, e.g., Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1445 n. 5 (11th Cir.1998). We note, however, that in Bragdon v. Abbott, the Supreme Court declined to address whether asymptomatic HIV is a per se disability, arguably suggesting, at least implicitly, that the preferred method is to address whether an impairment causes a substantial limitation upon a major life activity on a case-by-case, individualized basis. 524 U.S. 624, 641-42, 118 S.Ct. 2196, 2207, 141 L.Ed.2d 540 (1998). Two recent cases further demonstrate that the Supreme Court favors an individualized analysis. See Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999)." }, { "docid": "12675745", "title": "", "text": "for himself, and so we focus our discussion on these two major life activities. In Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998), the Supreme Court set forth a three-part analysis to determine whether a plaintiff has shown that she is substantially limited in a major life activity, which asks: (1) whether the condition alleged constitutes a physical or mental impairment, (2) whether that impairment affects a major life activity, and (3) whether the impairment operates as a substantial limit on the major life activity asserted. Id. at 632 — 42, 118 S.Ct. 2196. Moreover, in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), the Supreme Court stated, in answering the third question, that individuals whose impairment “ ‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures were not taken,” but “is corrected by medication or other measures” cannot be considered disabled under the statute. 527 U.S. at 482-83, 119 S.Ct. 2139. In other words, in applying the statute to specific impairments, courts may consider only the limitations of an individual that persist after taking into account mitigation measures (e.g., medication) and the negative side effects of the measures used to mitigate the impairment. See id.; see also Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999). This is not, however, license for courts to meander in “would, could, or should-have” land. We consider only the measures actually taken and consequences that actually follow. Cf. Sutton, 527 U.S. at 482-84, 119 S.Ct. 2139 (reasoning that an “approach [that] would often require courts and employers to speculate about a person’s condition and would, in many cases, force them to make a disability determination based on general information about how an uncorrected impairment usually affects individuals, rather than on the individual’s actual condition” is “contrary to the letter and the spirit of the ADA”). Those who discriminate take their victims as they find them. Nawrot is a diabetic. But his diabetic status, per se, is not sufficient to qualify as" }, { "docid": "9935386", "title": "", "text": "U.S. at 196, 122 S.Ct. 681. In determining whether an impairment substantially limits a major life activity, courts derive guidance from the regulations promulgated by the EEOC. See, e.g., Waldrip, 325 F.3d at 655 n. 1; Dupre v. Charter Behavioral Health Systems of Lafayette Inc., 242 F.3d 610, 614 (5th Cir. 2001); Gonzales v. City of New Braunfels, 176 F.3d 834, 836 (5th Cir.1999). EEOC regulations define “major life activities” to include functions such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” 29 C.F.R. § 1630.2(f); Aldrup v. Caldera, 274 F.3d 282, 286-87 (5th Cir.2001). Whether an impairment is “substantially limiting” depends on “(1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term impact.” Dupre, 242 F.3d at 614 (citing 29 C.F.R. § 1630.2©). “[TJemporary, non-chronic impairments of short duration, with little or no longer term or permanent impact, are usually not disabilities.” Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir.1998); see also Deas v. River West, L.P., 152 F.3d 471, 479 (5th Cir.1998) (holding that temporary loss of awareness from petit mal seizures did not constitute a substantial limitation on a major life activity, even though awareness encompasses the major life activities of seeing, hearing, and speaking). Moreover, determination of whether an impairment substantially limits a major life activity must be made with consideration of any mitigating measures exercised by the individual. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482-83, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); Equal Employment Opportunity Comm. v. R.J. Gallagher Co., 181 F.3d 645, 653-54 (5th Cir.1999). “A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently ‘substantially limits’ a major life activity.” Sutton, 527 U.S. at 482-83, 119 S.Ct. 2139. d. Disability Analysis: Substantially Limiting Impairment The parties hotly dispute whether Hickman has — or more importantly, in 2005 at the time of her employment with DPH, had — a “disability” under the ADA and TCHRA. Hickman primarily contends" }, { "docid": "18470145", "title": "", "text": "The Second Circuit has “ruled that failure to make reasonable accommodation, when the employee has satisfied the first three elements of [her] claim, amounts to discharge ‘because of [her] disability.” Parker, 204 F.3d at 332 (citing Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 870 (2d Cir.1998)). D. ADA Disability In determining whether an individual has an ADA-qualifying disability, the Second Circuit uses the three-step approach taken by the Supreme Court in Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). See Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 641 (2d Cir.1998). First, plaintiff must show that she suffers from a physical or mental impairment. See id. (citing Bragdon, 524 U.S. at 631, 118 S.Ct. 2196). Second, plaintiff must identify the activity claimed to be impaired and establish that it constitutes a “major life activity.” See id. Third, the plaintiff must show that her impairment “substantially limits” the major life activity previously identified. See id. If a plaintiff fails to satisfy each of these three prongs, her discrimination claim must be dismissed. See Monroe v. Cortland County, N.Y., 37 F.Supp.2d 546, 550 (N.D.N.Y.1999) (citing Colwell, 158 F.3d at 641). 1. Impairment The Equal Employment Opportunity Commission (“EEOC”) has promulgated regulations and issued interpretive guidelines implementing the ADA. One such regulation defines “mental impairment” as “any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 29 C.F.R. § 1630.2(h)(2). Determining whether a person has a disability under the ADA is an individualized inquiry that is impacted by a wide variety of factors. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Felix’s stated impairment was post-traumatic stress disorder (“PTSD”) which she suffered for approximately four years after the firebombing incident. See PI. 56.1 ¶ 5 at 14-15. While this condition was not permanent, it was of sufficient duration to qualify as an ADA impairment. See Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir.1998) (“The regulations and the EEOC’s interpretive guidelines clearly state that" }, { "docid": "12990770", "title": "", "text": "term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2). Michigan’s Persons with Disabilities Civil Rights Act substantially mirrors the ADA, and resolution of a plaintiffs ADA claim will generally, though not always, resolve the plaintiffs PWDCRA claim. Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 n. 3 (6th Cir.1998); Chiles v. Machine Shop, Inc., 238 Mich.App. 462, 606 N.W.2d 398, 405 (1999). To state a claim under the ADA, a plaintiff must establish that: “1) he is an individual with a disability; 2) he is ‘otherwise qualified’ to perform the job requirements, with or without reasonable accommodation; and 3) he was discharged solely by reason of his handicap.” Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir.1996). The issue before us is whether Cotter is disabled within the meaning of the statute. A. We must make an individualized inquiry into whether a plaintiff is disabled. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Thus, though colitis might not be a disability for everyone who has it, it might be a disability for Cotter. Moreover, because we must take into account “measures that mitigate the individual’s impairment,” id. at 475, 119 S.Ct. 2139, the colitis must be viewed in its medicated-and thus substantially controlled — state. In determining whether Cotter’s colitis is disabling, we consider three factors: 1) whether his colitis constitutes a physical impairment; 2) if so, whether any life activity which the colitis purportedly curtails constitutes a major life activity under the ADA; and 3) if so, whether the colitis substantially limits that major life activity. See Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). In his complaint, Cotter alleged, without elaborating, that his colitis “substantially limits major life activities.” In an affidavit filed after Ajilon’s motion for summary judgment, Cotter claimed that his colitis restricts his ability to perform manual tasks such as lifting, bending, standing and carrying things. Apart from this perfunctory statement, however, Cotter offered no evidence from which a reasonable jury could" }, { "docid": "15014174", "title": "", "text": "that substantially limits one or more of the major life activities of such individual; (B) A record of such impairment; or' (C) Being regarded as having such an impairment. 42 U.S.C. § 12102(2). Plaintiff asserts that he is disabled under section (A) above. Thus, to qualify as disabled, plaintiff must show (1) he suffers from a physical or mental impairment (2) which affects a “major life activity,” (3) to a “substantial” degree. See Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 2202, 141 L.Ed.2d 540 (1998); Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 155 (1st Cir.1998). Plaintiff maintains that his diabetes limits a major life activity by requiring that he not stand for long periods of time. Plaintiff asserts that his “diabetes, by its very nature, requires that his blood glucose level be maintained at a certain level, or ‘within certain parameters,’ because otherwise he can not function.” (Doc. 28, p. 2). However, plaintiff does not qualify as disabled under the ADA merely because he has diabetes. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Although if uncontrolled the illness could certainly affect the major life activities of an individual, “[t]he Supreme Court has made it clear that the determination whether an individual is disabled for ADA purposes is to be made with reference to measures that mitigate the impairment.” Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir.2000) (citing Sutton, 527 U.S. at 475, 119 S.Ct. 2139). As the Supreme Court explained in Sutton: The use or nonuse of a corrective device [or medication] does not determine whether an individual is disabled; that determination depends on whether the limitations an individual with an impairment actually faces are in fact substantially limiting. Sutton, 527 U.S. at 488, 119 S.Ct. 2139. Otherwise, “[a] diabetic whose illness does not impair his or her daily activities would therefore be considered disabled simply because he or she has diabetes.” Id at 483, 119 S.Ct. 2139. Such an approach “is contrary to both the letter and the spirit of the ADA.” Id at" }, { "docid": "11749854", "title": "", "text": "pt. 11, at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 334 (insulin-dependent diabetes constitutes a substantial limitation on a major life activity); S.Rep. No. 101-116, at 23 (1989) (same)). Only a few decisions have concluded that an impairment should be assessed in its treated state. One involved non-insulin dependent diabetes and was the product of a divided court. See Gilday v. Mecosta County, 124 F.3d 760, 766 (6th Cir.1997) (Kennedy J., concurring in part and dissenting in part) (voting two to one that the ADA requires that the disability be considered after taking into account mitigating measures). Another involved an easily correctable ailment. See Sutton v. United Air Lines, Inc., 130 F.3d 893 (10th Cir.1997) (nearsightedness corrected with prescription lenses), cert. granted, — U.S. -, 119 S.Ct. 790, 142 L.Ed.2d 653 (1999). Royal’s argument that Burke was not disabled are not persuasive. First, Royal’s reliance on Burke’s testimony that he was not limited in his ability to “drive, read, walk, talk, concentrate on problems and use the computer,” see Def.’s Mem. of Law at 16-17, fails to consider that Burke would have such limitations if he did not take the required insulin. In addition, Royal’s focus on the effect of Burke’s diabetes on his work fails to recognize that the ADA defines disability as a substantial limitation on a major life activity, not a major work activity. See Bragdon, 118 S.Ct. at 2205 (rejecting notion that the substantial limitation must involve a person’s public, economic, or work life). Fi nally, Royal’s reliance on Burke’s diabetic condition in March 1996 rather than in August 1996, when the adverse employment decision was made, fails to consider that Burke’s condition deteriorated after March 1996, when his diabetes changed from Type II to Type I. For all these reasons, and based upon the above cited judicial authority, and the regulations and interpretive guidelines of the EEOC, I conclude that Burke’s type I, insulin-dependent diabetes constitutes a disability within the meaning of the ADA. 2. Burke’s Prima Facie Showing of Discriminatory Treatment To shift the burden to Royal to present a nondiscriminatory reason for terminating" }, { "docid": "17141369", "title": "", "text": "Abbott, the Court stated “[t]he [ADA] addresses substantial limitations on major life activities, not utter inabilities.” 524 U.S. 624, 641, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). The Bragdon Court also noted that when an individual’s impairment created significant limitations, the ADA definition of disability is met even if the difficulties created by the impairment are not insurmountable. See id. In considering the record as a whole and the effects of Otting’s impairment, we find that at the time of her termination, Ot-ting’s epilepsy substantially limited one or more major life activities. Despite her attempts to control her impairment with medication, at the time she was terminated, Otting met the definition of disabled found in 42 U.S.C. § 12102(2)(A). That is, Otting suffered from a physical impairment which substantially limited the major life activities of walking, seeing and speaking. In making this determination, we have considered the factors delineated in the EEOC regulations for determining whether an individual is substantially limited in a major life activity: “i) [t]he nature and severity of the impairment; ii) [t]he duration or expected duration of the impairment; and iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” 29 C.F.R. § 1630.2(j)(2). We note that Otting's epilepsy is severe and has been resistant to attempts at control. Further, due to the nature of Ot-ting’s impairment, when she suffers a seizure she is rendered entirely incapable of speaking, walking, and seeing. Additionally, Otting’s impairment is most likely permanent. In light of the foregoing discussion, we affirm the district court’s denial of J.C. Penney’s motion for JAML on the issue of liability. B. Punitive Damages We next address Otting’s contention that the district court erred in partially granting J.C. Penney’s motion for JAML by striking the jury’s award of punitive damages. We review a district court’s grant of JAML de novo and will affirm “[o]nly when there is a complete absence of probative facts to support” the jury’s verdict. Blackmon v. Pinkerton Security & Investigative Services, 182 F.3d 629, 635 (8th Cir.1999)(internal quotations omitted). Punitive" }, { "docid": "1500", "title": "", "text": "or diabetes, which substantially limit a major life activity are covered under the first prong of disability, even if the effects of the impairment are controlled by medication.” Id. (quoting H.R.Rep. No. 101-485(11), at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 334) See also H.R.Rep. No. 101-485(111), at 28 (1989), reprinted in 1990 U.S.C.C.A.N. 451; S.Rep. No. 101-116, at 23 (1989). We recognize that the Tenth Circuit has rejected this view and held that disabilities should be evaluated based on their'mitigated state. See Sutton v. United Air Lines, Inc., 130 F.3d 893, 902 (10th Cir.1997), cert. granted, — U.S. -, 119 S.Ct. 790, 142 L.Ed.2d 653 (1999). And we are aware that the Supreme Court has decided to review Sutton along with two similar cases. See Murphy v. United Parcel Service, 141 F.3d 1185 (10th Cir.1998)(unpub-lished table decision), cert. granted, — U.S. -, 119 S.Ct. 790, 142 L.Ed.2d 653 (1999); Kirkingburg v. Albertson’s Inc., 143 F.3d 1228 (9th Cir.1998), cert. granted, — U.S. -, 119 S.Ct. 791, 142 L.Ed.2d 654 (1999). Nonetheless, we remain firm in our belief that legislative history and deference to the administering agency require the rule announced in Matczak, and we are, of course, bound by our prior precedent. We would add that the majority of circuits which have considered the issue have held that disabilities should be judged based on their unmitigated state. See Arnold v. United Parcel Service, Inc., 136 F.3d 854, 857-866 (1st Cir.1998); Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir.1995); Doane v. City of Omaha, 115 F.3d 624, 627-28 (8th Cir.1997); Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996); Harris v. H & W Contracting Co., 102 F.3d 516, 520-21 (11th Cir.1996); but see Washington v. HCA Health Services of Texas, Inc., 152 F.3d 464 (5th Cir.1998)(only “serious impairments” like diabetes, epilepsy, and hearing impairments will be assessed in their unmitigated state; permanent corrections will be evaluated based on the mitigated condition); Gilday v. Mecosta County, 124 F.3d 760, 767-68 (6th Cir.1997)(Kennedy, J., concurring in part); id. at 768 (Guy, J., concurring in part and dissenting" }, { "docid": "9946560", "title": "", "text": "a particular major life activity as compared to ... the average person.’ ” Nawrot, 277 F.3d at 904 (quoting 29 C.F.R. § 1630.2(j)). An impairment need not cause an “utter inability]” to perform the major life activity in order to constitute a substantial limitation on that activity. Bragdon v. Abbott, 524 U.S. 624, 641, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). The determination whether a particular person with an impairment is substantially limited must be individualized; in other words, we may not declare that all individuals who suffer from a particular medical condition are disabled for the purposes of the Rehabilitation Act. See Sutton v. United Air Lines, 527 U.S. 471, 483-84, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Underlining the specificity that is required in making an individualized determination of disability, the Supreme Court has noted that it would be contrary to the language of the ADA to find “all diabetics to be disabled,” regardless of whether an individual diabetic’s condition actually impaired his daily activities. Id. at 483, 119 S.Ct. 2139. Thus, we emphasize that, even though this court has determined on two separate occasions that a person with Type I diabetes can be substantially limited with respect to one or more major life activities, see Nawrot, 277 F.3d at 905; Laivson, 245 F.3d at 926, neither of those cases dictates the outcome here. To hold otherwise would be to contravene the Supreme Court’s determination that “both the letter and the spirit” of the ADA require an individualized assessment of each plaintiffs “actual condition,” rather than a “determination based on general information about how an uncorrected impairment usually affects individuals.” Sutton, 527 U.S. at 483, 119 S.Ct. 2139. Furthermore, we emphasize that our holding in this case does not affect the principle that “diabetic status, per se, is not sufficient to qualify as a disability.” Nawrot, 277 F.3d at 904; see also Homey-er v. Stanley Tulchin Assocs., Inc., 91 F.3d 959, 962 (7th Cir.1996) (“Some impairments may be disabling for particular individuals but not for others .... ”). For example, a “ ‘diabetic whose illness does not impair" }, { "docid": "14564515", "title": "", "text": "187, 191 n. 3 (5th Cir.1996) (dicta) (cancer was successfully treated) and Gilday v. Mecosta County, 124 F.3d 760, 767 (6th Cir.1997) (non-insulin-dependent diabetes mellitus was controlled with medication). The majority of the circuits, however, have, like the Eighth Circuit, followed the EEOC’s guidance and concluded that mitigating measures should not be considered in determining whether an impairment substantially limits a major life activity. See Arnold v. United Parcel Service, Inc., 136 F.3d 854, 866 (1st Cir.1998) (insulin-dependent diabetes mellitus was controlled with medication), Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933, 936-937 (3rd Cir.1997) (epilepsy), Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir.1995) (legally blind in one eye), Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996) (psychiatrically disabled due to work related stress), and Harris v. H & W Contracting Co., 102 F.3d 516, 520-521 (11th Cir.1996) (Graves’ disease). [¶ 13] Although not specifically discussed by the Eighth Circuit in Doane, that decision is supported by the legislative history of the ADA. An examination of that history reveals Congress’ intent to exclude mitigating measures from assessments of disability. One congressional committee noted, “[P]ersons with impairments, such as epilepsy or diabetes, which substantially limit a major life activity are covered under the first prong of disability, even if the effects of the impairment are controlled by medication.” H.R.REP. NO. 101-485(11), at 52 (1990) (emphasis added), reprinted in 1990 U.S.C.C.A.N. 334; see also S.REP. NO. 101-116, at 23 (1989) (committee report stating “whether a person has a disability should be assessed without regard to the availability of mitigating measures Thus, the ADA’s legislative history bolsters the interpretation offered by the EEOC’s guidelines. That is, disabled individuals who control their disability with medication may still invoke the protections of the ADA. Matczak v. Frankford Candy and Chocolate Co., 136 F.3d at 937. This Court is obviously bound by the law in the Eighth Circuit. Were this Court “writing on a clean slate,” the Court would adopt the rationale of the Tenth Circuit in Sutton. By way of personal example, I cannot read at all," }, { "docid": "7324666", "title": "", "text": "assignment made five days in advance of the delivery date. During this time, Hein did not attempt to meet with another doctor or obtain a temporary refill of his blood-pressure medication. Yet Hein, by his own admission, had the responsibility to keep himself medicated. It was thus Hein, rather than his employer, who placed himself in the position of being forced to either violate the federal motor carrier safety laws or abandon his work duties. Accordingly, we find that the public policy exception to the at-will em ployment doctrine is inapplicable under these circumstances. C. Disability discrimination claim Hein next alleges disability discrimination under the ADA and the PDCRA. The federal ADA and the Michigan PDCRA each require an individual seeking redress to show that he has an impairment that substantially limits a major life activity. See Gilday v. Mecosta County, 124 F.3d 760, 762 (6th Cir.1997) (finding no disability under the ADA where the plaintiffs diabetes, which was controlled by medication, did not substantially impair any of his major life activities); Chmielewski v. Xermac, Inc., 457 Mich. 593, 580 N.W.2d 817, 823 (1998) (holding that a plaintiff who received a liver transplant, and whose anti-rejection medication allowed him to live a normal life, did not have a disability). Hein’s hypertension, therefore, does not rise to the level of a disability as defined under those statutes. The Supreme Court has expressly held that courts must evaluate a person with high blood pressure in his medicated state in order to determine whether he is disabled under the ADA. See Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999) (holding that Murphy, a truck driver, was not disabled under the ADA because his hypertension did not substantially limit his major life activities when he was medicated). Michigan law is similar in requiring claimants to be evaluated in their medicated, rather than unmedicated, condition. See Chmielewski, 580 N.W.2d at 824. Hein tries to distinguish his situation from Murphy and Chmielewski by noting that both Murphy and Chmielewski were on medication when fired. In contrast, Hein argues" }, { "docid": "14564514", "title": "", "text": "893 (10th Cir.1997). The Tenth Circuit concluded in that case that “while the EEOC’s Interpretative Guidance may be entitled to some consideration in our analysis, it does not carry the force of law and is not entitled to any special deference under Chevron.” Id. at 899 n. 3. The Sutton court applied the EEOC’s Interpretative Guidance as to whether Sutton had an impairment because it “is reasonable and consistent with the statutory mandates themselves.” Id. at 899. However, the Tenth Circuit rejected the Interpretative Guidance as to whether the impairment substantially limits a major life activity, holding that the Interpretative Guidance “is in direct conflict with the plain language of the ADA_In making disability determinations, we are concerned with whether the impairment affects the individual in fact, not whether it would hypothetically affect the individual without the use of corrective measures.” Id. at 902 (plaintiffs’ eyesight is correctable to 20/20 with glasses or contact lenses). The Fifth and Sixth Circuits have also rejected the EEOC’s Interpretative Guidance. See Ellison v. Software Spectrum, Inc., 85 F.3d 187, 191 n. 3 (5th Cir.1996) (dicta) (cancer was successfully treated) and Gilday v. Mecosta County, 124 F.3d 760, 767 (6th Cir.1997) (non-insulin-dependent diabetes mellitus was controlled with medication). The majority of the circuits, however, have, like the Eighth Circuit, followed the EEOC’s guidance and concluded that mitigating measures should not be considered in determining whether an impairment substantially limits a major life activity. See Arnold v. United Parcel Service, Inc., 136 F.3d 854, 866 (1st Cir.1998) (insulin-dependent diabetes mellitus was controlled with medication), Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933, 936-937 (3rd Cir.1997) (epilepsy), Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir.1995) (legally blind in one eye), Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996) (psychiatrically disabled due to work related stress), and Harris v. H & W Contracting Co., 102 F.3d 516, 520-521 (11th Cir.1996) (Graves’ disease). [¶ 13] Although not specifically discussed by the Eighth Circuit in Doane, that decision is supported by the legislative history of the ADA. An examination of that" }, { "docid": "11749853", "title": "", "text": "477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986) (internal quotations omitted) (citations omitted). The EEOC, the federal agency charged with implementing the ADA, has promulgated regulations and guidelines indicating that a disability should be assessed without regard to ameliorative medications and that insulin-dependent diabetes is a disability within the meaning of the ADA. See 29 C.F.R. § 1630.2(j)(l)(ii) (the term “substantially limits” contained in the definition of disability means, inter alia, “[significantly restricted as to the condition, manner or duration under which an individual can perform a 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”); Appendix to 29 C.F.R. § 1630.2(j) (noting, in interpretive guidelines, that a disability should be assessed “without regard to mitigating measures such as medicines,” and that “a diabetic who without insulin would lapse into a coma would be substantially limited because the individual cannot perform major life activities without the aid of medication”) (citing H.R.Rep. No. 101-485 pt. 11, at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 334 (insulin-dependent diabetes constitutes a substantial limitation on a major life activity); S.Rep. No. 101-116, at 23 (1989) (same)). Only a few decisions have concluded that an impairment should be assessed in its treated state. One involved non-insulin dependent diabetes and was the product of a divided court. See Gilday v. Mecosta County, 124 F.3d 760, 766 (6th Cir.1997) (Kennedy J., concurring in part and dissenting in part) (voting two to one that the ADA requires that the disability be considered after taking into account mitigating measures). Another involved an easily correctable ailment. See Sutton v. United Air Lines, Inc., 130 F.3d 893 (10th Cir.1997) (nearsightedness corrected with prescription lenses), cert. granted, — U.S. -, 119 S.Ct. 790, 142 L.Ed.2d 653 (1999). Royal’s argument that Burke was not disabled are not persuasive. First, Royal’s reliance on Burke’s testimony that he was not limited in his ability to “drive, read, walk, talk, concentrate on problems and use the computer,” see Def.’s Mem. of Law at 16-17," }, { "docid": "17141368", "title": "", "text": "of the ADA. We agree that ladder-climbing is not a major life activity, see Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir.1999), cert. denied, - U.S. -, 120 S.Ct. 794, 145 L.Ed.2d 670 (2000) (finding that walking up stairs is not a major life activity for the purposes of ADA). Nonetheless, we disagree with J.C. Penney’s contention that ladder-climbing is the only activity which should be considered when determining whether Otting is disabled. Otting testified that during her seizures she could not speak, walk, see, work, or control the left side of her body. We hold that it is these major life activities, not the activity of ladder-climbing, which should be considered in determining Otting’s status under the ADA. We note the Supreme Court’s statement in Sutton that “whether a person has a disability under the ADA is an individualized inquiry.” Sutton, 119 S.Ct. at 2147. Moreover, we are mindful of recent Supreme Court pronouncements on the issue of whether an individual is substantially limited in a major life activity. In Brag-don v. Abbott, the Court stated “[t]he [ADA] addresses substantial limitations on major life activities, not utter inabilities.” 524 U.S. 624, 641, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). The Bragdon Court also noted that when an individual’s impairment created significant limitations, the ADA definition of disability is met even if the difficulties created by the impairment are not insurmountable. See id. In considering the record as a whole and the effects of Otting’s impairment, we find that at the time of her termination, Ot-ting’s epilepsy substantially limited one or more major life activities. Despite her attempts to control her impairment with medication, at the time she was terminated, Otting met the definition of disabled found in 42 U.S.C. § 12102(2)(A). That is, Otting suffered from a physical impairment which substantially limited the major life activities of walking, seeing and speaking. In making this determination, we have considered the factors delineated in the EEOC regulations for determining whether an individual is substantially limited in a major life activity: “i) [t]he nature and severity of the impairment; ii)" }, { "docid": "7618666", "title": "", "text": "pretext for discrimination. Daigle v. Liberty Life Insurance Co., 70 F.3d 394, 396 (5th Cir.1995). The threshold issue in a plaintiffs prima facie case of discrimination under the ADA is a showing that he suffers from a disability protected by the ADA. Talk, 165 F.3d at 1024 (citing Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir.1996)). Under the ADA, a disability is defined as a \"physical or mental impairment that substantially limits one or more of the major life activities of such individual. . . .\" 42 U.S.C. § 12102(2). The Supreme Court has promulgated a three-step process in determining whether plaintiff has a disability pursuant to the ADA. First, the court must consider whether the condition in question constitutes a physical impairment. Second, the court must identify the plaintiffs life activity and determine if it classifies as a \"major life activity\" under the ADA. Filially, the court must ask whether the plaintiff's impairment substantially limits the major life activity. Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 2202, 141 L.Ed.2d 540 (1998); Equal Employment Opportunity Commission v. R.J. Gallagher Company, 181 F.3d 645, 652 (5th Cir.1999). It is without question that Plaintiff suffers from a physical impairment within the meaning of § 12102(2). Plaintiff suffers from epilepsy which is defined as a \"disorder of the nervous systeni, usually characterized by fits of convulsions that end with loss of consciousness.\" Random House College Dictionary 444 (Revised Ed.1984). Without medication, Plaintiff would suffer daily seizures, including grand mal seizures which involve loss of consciousness, general thrashing, and to-noclonic activity. Epilepsy qualifies as a physical impairment for the purposes of defining disability under the ADA requirements. The life activity most applicable to the Plaintiff in the present case is working. The EEOC regulations define major life activities as \"functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.\" 29 C.F.R. § 1630.2(I). Based on these guidelines, courts have concluded that working falls within the category of major life activities. R.J. Gallagher Company, at 652-53. In addition to working, Plaintiff identifies" }, { "docid": "12675744", "title": "", "text": "Anthony Med. Ctr., Inc., 117 F.3d 1051, 1053 (7th Cir.1997) (“The Act is not a general protection of medically afflicted persons.”). To claim the protection of the ADA, plaintiffs must come within the coverage of the statutory definition of disability. See Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 950 (7th Cir.2000). Nawrot argues that he is disabled because he meets the first and third statutory definition of disability. We address only his argument under the first definition. Nawrot argues that his diabetes is a physical or mental ifnpairment that substantially limits the major life activities of working, thinking, and caring for himself. Although all these major life activities were not explicitly identified to the district court, we believe that these issues were adequately raised below, and that the reasons behind the waiver rule do not require its application in this circumstance. Cf. Bailey v. Int’l Bhd. of Boilermakers, 175 F.3d 526, 529-30 (7th Cir.1999). We agree with Nawrot that he has demonstrated that his impairment substantially limits his ability to think and care for himself, and so we focus our discussion on these two major life activities. In Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998), the Supreme Court set forth a three-part analysis to determine whether a plaintiff has shown that she is substantially limited in a major life activity, which asks: (1) whether the condition alleged constitutes a physical or mental impairment, (2) whether that impairment affects a major life activity, and (3) whether the impairment operates as a substantial limit on the major life activity asserted. Id. at 632 — 42, 118 S.Ct. 2196. Moreover, in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), the Supreme Court stated, in answering the third question, that individuals whose impairment “ ‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures were not taken,” but “is corrected by medication or other measures” cannot be considered disabled under the statute. 527 U.S. at 482-83, 119 S.Ct. 2139. In other words, in applying the statute to specific" } ]

[ { "docid": "22603803", "title": "", "text": "of opinion that' such a distinction is altogether unsound. The Siler and like cases announce the rule broadly, without qualification; and we perceive no sufficient reason' for the exception suggested. It is stated in these decisions as a rule of general application, and we hold it to be such — as. controlling in patent, trademark, and copyright cases as it was in the cases, where, it is announced. ' ’ „, But the rule does not go so far as to permit a federal court to assume jurisdiction of a separate and distinct non-federal cause of action because it is joined in the same complaint with a federal cause of action. The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a' federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting ■ in substance,- the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the non-federal ground; in the latter it may not do so upon the non-federal cause of action. The case at bar'falls within the first category.' The bill alleges the violation of a single right, namely, the right to protection of the copyrighted play. And it is this violation which constitutes-the cause of action. Indeed, the claims of infringement and unfair competition so precisely rest upon idéntica! facts as to be little more than the equivalent of different epithets to characterize the same-group of circumstances. The primary relief sought is an injunction to' put' an end to ,an essentially single wrong, however differently characterized, not to enjoin distinct ■wrongs constituting the basis for independent causes of action. The applicable rule is stated, and authorities cited, in Baltimore S. S. Co. v. Phillips, 274 U.S. 316. “A cause!of action.does not consist of facts,” this court there said (p. 321), “but of the unlawful violation" } ]

[ { "docid": "22910934", "title": "", "text": "damages in a single action for copyright infringement (federal question) and unfair competition (a state question), both arising out of the same set of facts. The court in Hum v. Oursler, supra, made this distinction, 289 U.S. at page 245, 53 S.Ct. at page 589: “But the rule does not go so far as to permit a federal court to assume jurisdiction of a separate and distinct nonfederal cause of action because it is joined in the same complaint with a federal cause of action. The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the.former, where the federal question averred is. not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the nonfederal cause of action.” [Emphasis supplied.] It is alleged in the complaint in our ease, and the trial court found, a single cause of action involving a single fraudulent scheme to defraud Mrs. Connell of her property. There were involved two types of property, one being securities over which the federal court had jurisdiction, and the other non-securities over which the federal court normally has no jurisdiction. But the single fraudulent scheme arising out of the same set of facts encompassed both types of property. The thought of requiring two law suits in 'this situation is untenable. We therefore hold that the trial court could correctly award damages for the entire fraudulent scheme, even though non-securities were involved. Lastly, as a jurisdictional, argument, appellants claim that appellee did not establish that any act or transaction,’constituting a violation of the Security Exchange Act of 1934 or any rule of the Commission promulgated thereunder, occurred within the Western District of Washington. This court held in Fratt v. Robinson, supra," }, { "docid": "8650360", "title": "", "text": "U.S. 175, 191, 29 S.Ct. 451, 53 L.Ed. 753. But it is likewise true that the rule has been limited by the Supreme Court in Hurn, et al v. Oursler, et al, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 where Mr. Justice Sutherland, speaking for the court, said at pages 245 and 246 of 289 U.S., at page 589 of 53 S.Ct.: “But the rule does not go so far as to permit a federal court to assume jurisdiction of a separate and distinct nonfederal cause of action because it is joined in the same complaint with a federal cause of action. The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the nonfederal eause of action.” It i-s the opinion of the Court that the present case is clearly in the latter class as defined by the Supreme Court in the Hurn opinion, supra. There is here the joinder of a federal cause of action with a non-federal cause of action; the federal cause of action being the action against the railroad under the Federal Employers’ Liability Act and the Safety Appliance Act, the Court having jurisdiction, and the non-federal cause of action being the action against Hofkin under the common law of Pennsylvania, the Court being without jurisdiction. It is the opinion of the Court that this argument does not establish jurisdiction in this matter in the District Court. Taking up the next argument of appellant, it is that the action against. Hofkin is ancillary to the action against the railroad and, therefore the Court may retain jurisdiction." }, { "docid": "15208927", "title": "", "text": "this combination was motivated primarily by functional requirements, and was therefore not patentable. Hueter v. Compco Corporation, 7 Cir., 1950, 179 F.2d 416. Because Hopkins’ design of a baggage rack was not new and original, and because it was dictated by functional requirements, the Hopkins- Design Patent 156,008 must be and is hereby declared invalid. Ill Hopkins, who is plaintiff in the suit for patent infringement, contends that Waco Products, Inc. and its president, Troccoli, engaged in unfair competitive practices, and violated the Illinois Fair Trade Act. Waco and Troccoli urge that this court is without jurisdiction to rule upon these nonfederal claims. Since there is no diversity of citizenship between the parties, jurisdiction, if any, would be based upon 28 U.S.C.A. § 1338(b), which provides : “The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent or trademark laws.” This statute codifies the body of law which emanated from Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. In that case, the Supreme Court held that once a district court has assumed jurisdiction of a suit arising under the copyright laws, the court acquires and retains jurisdiction of nonfederal claims, such as unfair competition, which are based upon the same set of facts as the copyright suit. The limits.of the rule were marked out by the Court in this manner, 289 U.S. at page 246, 53 S.Ct. at page 589: “The distinction to ¡be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do-" }, { "docid": "6173730", "title": "", "text": "1968, Coulter moved to join Berg as a counterclaim defendant and Particle Data orally moved the court to reconsider its motion to dismiss the third counterclaim. On November 21, 1968, the trial court entered a Memorandum of Decision denying Coulter’s motion to join Berg and granting Particle Data’s motion to dismiss the third counterclaim. Coulter contends that the district court had jurisdiction of the third counterclaim under Title 28, U.S.C.A. § 1338(b) and abused its discretion in dismissing such counterclaim. Section 1338(b) is the statutory codification of the judicially developed doctrine of pendent jurisdiction. 80th Congress House Report No. 308 (1947). It provides: “The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent or trademark laws.” This case, like many before it, involves the double question of whether the instant claim is a “claim of unfair competition” and whether, if it is, it is “related” to the patent and trademark claims in suit. Because of our disposition of this appeal, we may assume, without deciding, that Coulter has properly denominated its third counterclaim as one of “unfair competition” rather than one merely of breach of contract, as Particle Data contends. Coulter urges that its counterclaim is “related” within the meaning of Section 1338(b). The first case to bring pendent jurisdiction into prominence was Hurn v. Ousler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), wherein the Supreme Court distinguished proper from improper exercises of federal pendent jurisdiction over state law claims by contrasting “a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it" }, { "docid": "22650849", "title": "", "text": "of the claim based on Tennessee law. There was no need to decide a like question in Teamsters Union v. Morton, 377 U. S. 252, since the pertinent state claim there was based on peaceful secondary activities and we held that state law based on such activities had been pre-empted by § 303. But here respondent’s claim is based in part on proofs of violence and intimidation. “[W]e have allowed the States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order. United Automobile Workers v. Russell, 356 U. S. 634; United Construction Workers v. Laburnum Corp., 347 U. S. 656. . . . State jurisdiction has prevailed in these situations because the compelling state interest, in the scheme of our federalism, in the maintenance of domestic peace is not overridden in the absence of clearly expressed congressional direction.” San Diego Building Trades Council v. Garmon, 359 U. S. 236, 247. The fact that state remedies were not entirely preempted does not, however, answer the question whether the state claim was properly adjudicated in the District Court absent diversity jurisdiction. The Court held in Hum v. Oursler, 289 U. S. 238, that state law claims are appropriate for federal court determination if they form a separate but parallel ground for relief also sought in a substantial claim based on federal law. The Court distinguished permissible from nonpermissible exercises of federal judicial power over state law claims by contrasting “a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the non-federal ground; in the latter it may not do so upon the non-federal cause of action" }, { "docid": "9395853", "title": "", "text": "claim against a private party named as co-defendant in a suit against the United States under the Federal Tort Claims Act. See Carvelli v. United States, 174 F.Supp. 377 (E.D.N.Y.1959), and eases cited therein. In 1 Jayson, Handling Federal Tort Claims (1969) § 177, it is stated: “Although other defendants may be joined with the United States when the claimant sues under the Tort Claims Act, there must be a separate and independent basis of federal jurisdiction to support the claim against the private defendants.” The doctrine of those cases, that a separate basis of federal jurisdiction is necessary, has not been reviewed in the light of the Supreme Court’s decisions in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) and Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). None of the cases which have been called to the court’s attention discuss the Gibbs or Rosado decisions. Under the earlier rule established in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), a federal court with federal jurisdiction of one cause of action could keep jurisdiction of a state-law cause of action only if it stated separate grounds for the same relief, not if it stated a separate cause of action. The court in Hurn stated (289 U.S. at 246, 53 S.Ct. at 589): “The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground-, in the latter it may not do so upon the nonfederal cause of action.” (Emphasis from original) The Hurn rule was expressly changed in United Mine Workers v. Gibbs, supra, where" }, { "docid": "6173731", "title": "", "text": "disposition of this appeal, we may assume, without deciding, that Coulter has properly denominated its third counterclaim as one of “unfair competition” rather than one merely of breach of contract, as Particle Data contends. Coulter urges that its counterclaim is “related” within the meaning of Section 1338(b). The first case to bring pendent jurisdiction into prominence was Hurn v. Ousler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), wherein the Supreme Court distinguished proper from improper exercises of federal pendent jurisdiction over state law claims by contrasting “a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the non-federal cause, of action.” 289 U.S. at 246, 53 S.Ct. at 589. In United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L. Ed.2d 218 (1965), the Court found this “limited approach * * * unnecessarily grudging.” The Court held “pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * U.S.Const., Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ * * * The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power" }, { "docid": "5953316", "title": "", "text": "trial court considering the claim of infringement, on the merits, found that there had been no infringement of the copyright laws of the United States. It decided also that, in view of its finding of non-infringement, it was without jurisdiction to entertain the claim based on unfair competition, based as it was on state law. The Supreme Court held that where two grounds, one federal, the other non-federal, are urged in support of the same cause of action, a federal court has jurisdiction to adjudicate both grounds — providing, of course, that the federal ground is substantial. In deciding this point the Court made this distinction: But the rule does not go so far as to permit a federal court to assume jurisdiction of a separate and distinct non-federal cause of action because it is joined in the same complaint with a federal cause of action. The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the non-federal ground; in the latter it may not do so upon the nonfederal cause of action. (53 S.Ct. at p. 589; emphasis added.) Thus the rationale of Hurn v. Oursler, supra, appeared to preclude the complete adjudication of cases, such as the one now before us, which present not merely two grounds in support of the same cause of action, but more than one cause of action — or claim for relief. The prevailing interpretation seemed to be that adopted by the Court of Appeals for the Second Circuit in Musher Foundation v. Alba Trading Co., 127 F.2d 9 (2 Cir. 1942). In that case, which involved a claim of trade mark infringement combined with one of" }, { "docid": "5387555", "title": "", "text": "L.Ed. 1148: “The rule does not go so far as to permit a federal court to assume jurisdiction of a separate and distinct nonfederal cause of action because it is joined in the same complaint with a federal cause of action. The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case on the nonfederal ground; in the latter it may not do so on the nonfederal cause of action.” (Emphásis added.) What is the difference between two separate causes of action joined in the same complaint, and a single cause of action based upon two grounds? “A cause of action may mean one thing for one purpose and something different for another.” United States v. Memphis Cotton Oil Co., 1933, 288 U.S. 62, 53 S.Ct. 278, 280, 77 L.Ed. 619. The Federal Rules of Civil Procedure, 28 U.S.C.A., do not use the phrase “cause of action”. The facts, circumstances and laws sought to be enforced must determine whether there are two separate and distinct causes of action or two grounds for a single cause of action. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702, has made it plain that a separate and independent non-federal claim is not within the constitutional jurisdiction of the federal courts, and that the Judicial Code of 1948 restricted jurisdiction of non-federal matters. Snell, v. Potters, 2 Cir., 1937, 88 F.2d 611; Hydraulic Press Mfg. Co. v. Columbus Malleable Iron Co., D.C.1940, 35 F.Supp. 603; Fur Grooving & Shearing Co. v. Turano, D.C.1941, 39 F.Supp. 877, all hold that the federal court does not acquire jurisdiction of separate and distinct non-federal claims merely" }, { "docid": "22850201", "title": "", "text": "parallel ground for relief also sought in a substantial claim based on federal law. The Court distinguished permissible from non-permissible exercises of federal judicial power over state law claims by contrasting ‘a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a ease where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the nonfederal cause of action.’ ” As in United Mine Workers v. Gibbs, supra, the question here is, into which of the two categories suggested does this common law claim fall. The District Court stated its opinion was “that two separate causes of action are alleged, only one of which is federal in character. The other is based upon the common law.” 294 F.Supp. at 1183. Thus the District Court dismissed the common law claim. But the Supreme Court in United Mine Workers v. Gibbs, supra, took a much less restrictive view of what constitutes a cause of action, and concomitantly took a more expansive view of federal court power under the doctrine of pendent jurisdiction, stating at 725, 86 S.Ct. at 1138: “Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * U.S.Const. Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or" }, { "docid": "22650850", "title": "", "text": "preempted does not, however, answer the question whether the state claim was properly adjudicated in the District Court absent diversity jurisdiction. The Court held in Hum v. Oursler, 289 U. S. 238, that state law claims are appropriate for federal court determination if they form a separate but parallel ground for relief also sought in a substantial claim based on federal law. The Court distinguished permissible from nonpermissible exercises of federal judicial power over state law claims by contrasting “a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the non-federal ground; in the latter it may not do so upon the non-federal cause of action 289 U. S., at 246. The question is into which category the present action- fell. Hum was decided in 1933, before the unification of law and equity by the Federal Rules of Civil Procedure. At the time, the meaning of “cause of action” was a subject of serious dispute; the phrase might “mean one thing for one purpose and something different for an other.” United States v. Memphis Cotton Oil Co., 288 U. S. 62, 67-68. The Court in Hum identified what it meant by the term by citation of Baltimore S. S. Co. v. Phillips, 274 U. S. 316, a case in which “cause of action” had been used to identify the operative scope of the doctrine of res judicata. In that case the Court had noted that “ The whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time.’ ” 274 U. S., at 320. It stated its holding in the following language, quoted in part in the Hum" }, { "docid": "13915015", "title": "", "text": "held that the District Court was not without jurisdiction of the claim for unfair competition and should have disposed of it on the merits. Since the same defect which was fatal to the claim of copyright infringement was also fatal to the claim based on unfair competition, the Supreme Court merely modified the decree by providing for the dismissal of the claim based on unfair competition on the merits. In holding that the District Court had jurisdiction of the claim based on unfair competition the Supreme Court called attention to the fact that the claim for copyright infringement and the claim based on unfair competition were supported by substantially the same facts .and that they were not different causes ■ of action but merely stated different grounds for success upon the same cause of action, saying 289 U.S. at page 246, 53 S.Ct. at page 589: “The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one ■only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the nonfederal cause of action.” Plaintiff argues that all of the claims .alleged in the complaint are supported by substantially the same facts and con.stitute but a single cause of action, that, therefore, the federal court has jurisdiction of the subject matter of all of the claims since it has jurisdiction of the subject matter of the claim based on the Investment Company Act and that, therefore, the personal jurisdiction that the court has obtained over the moving defendants for the purposes of the claim under the Investment Company Act constitutes personal jurisdiction over them for the purposes of the “pendent” claims. There is certainly no" }, { "docid": "9395854", "title": "", "text": "L.Ed. 1148 (1933), a federal court with federal jurisdiction of one cause of action could keep jurisdiction of a state-law cause of action only if it stated separate grounds for the same relief, not if it stated a separate cause of action. The court in Hurn stated (289 U.S. at 246, 53 S.Ct. at 589): “The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground-, in the latter it may not do so upon the nonfederal cause of action.” (Emphasis from original) The Hurn rule was expressly changed in United Mine Workers v. Gibbs, supra, where the Supreme Court stated (383 U.S. at 725, 86 S.Ct. at 1138): “This limited approach is unnecessarily grudging. Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *,’ U.S. Const., Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case’. * * * The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” (Emphasis from original) In Rosado, the court stated (397 U.S. at 405, 90 S.Ct. at 1214): “We are not willing to defeat the common" }, { "docid": "22659896", "title": "", "text": "jurisdiction, as distinguished from merits, is wanting where the claim set forth in the pleading is plainly unsubstantial. The cases have stated the rule in a variety of ways, but all to that effect. . . . And the federal question averred may be plainly unsubstantial either because obviously without merit, or 'because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.’ ” 289 U. S., at 105-106. Hurn v. Oursler, 289 U. S. 238, 245-246 (1933): “But the rule does not go so far as to permit a federal court to assume jurisdiction of a separate and distinct non-federal cause of action because it is joined in the same complaint with a federal cause of action. The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the non-federal ground; in the latter it may not do so upon the non-federal cause of action.” (Emphasis in original.) The Court in Mine Workers v. Gibbs, 383 U. S., at 727, also stated: “[Recognition of a federal court's wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant’s effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.” I also see no reason why federal courts should be required to “tolerate” efforts to impose upon them" }, { "docid": "13915016", "title": "", "text": "federal question, and a case where two separate and distinct causes of action are alleged, one ■only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the nonfederal cause of action.” Plaintiff argues that all of the claims .alleged in the complaint are supported by substantially the same facts and con.stitute but a single cause of action, that, therefore, the federal court has jurisdiction of the subject matter of all of the claims since it has jurisdiction of the subject matter of the claim based on the Investment Company Act and that, therefore, the personal jurisdiction that the court has obtained over the moving defendants for the purposes of the claim under the Investment Company Act constitutes personal jurisdiction over them for the purposes of the “pendent” claims. There is certainly no ground for the assertion that the claim against defendant Eaton based on the sale of C & O stock by Alleghany to him for an inadequate price is supported by substantially the same facts as the claim based on the alleged unregistered sale of New York Central stock by C & 0 to Alleghany, a company subject to the Investment Company Act. Thus, even if there is substance to plaintiff’s claim that where there is pendent jurisdiction over the subject matter there is pendent jurisdiction over the person, there is no pendent jurisdiction over the subject matter of the claim against defendant Eaton based on the sale of the C & 0 stock by Alleghany to him. I have grave doubt whether even the claim against the moving defendants based on the sale of New York Central stock to Alleghany for an inadequate price can be considered to be so related to the claim under the Investment Company Act as to be pendent thereon. I need not decide that, however, since, in spite of Miller" }, { "docid": "16594759", "title": "", "text": "court lacked jurisdiction, to try the claims of state trade-mark infringement and unfair competition. We consider the second point decisive in the instant appeal for reasons which will hereinafter appear. The leading case on the subject of joinder of federal and non-federal causes of action is, of course, Hurn v. Oursler, 289 U. S. 238, at pages 245, 246, 53 S.Ct. 586 at page 589, 77 L.Ed. 1148. Mr. Justice Sutherland stated: “But the rule [of joinder of causes of action] docs not go so far as to permit a federal court to assume jurisdiction of a separate and distinct non-federal cause of action because it is joined in the same complaint with a federal cause of action. The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the non-federal cause of action.” The cause of -action based on trade-mark infringement and unfair competition arises out of the law of California. This fact is indecisive. What is decisive is that there are two separate and distinct causes of action, one federal, one state, and the grounds, the operative facts, in support of each are not the same but are very different. The patent contains only “method” claims. The fact that Camp allegedly simulated Hubik’s trade-mark to sell his, Camp’s, steaks, bears no relation to the alleged patent infringement. The instant case therefore falls within the second category designated by Mr. Justice Sutherland in Hurn v. Oursler. In tfie case at bar the federal and non-federal causes of action may not be joined. We so interpret the law. The court below, therefore, was" }, { "docid": "15208928", "title": "", "text": "238, 53 S.Ct. 586, 77 L.Ed. 1148. In that case, the Supreme Court held that once a district court has assumed jurisdiction of a suit arising under the copyright laws, the court acquires and retains jurisdiction of nonfederal claims, such as unfair competition, which are based upon the same set of facts as the copyright suit. The limits.of the rule were marked out by the Court in this manner, 289 U.S. at page 246, 53 S.Ct. at page 589: “The distinction to ¡be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do- so upon the non-federal cause of action.” The Court in Hurn v. Oursler noted that in that case, “the claims of infringement and unfair competition so precisely rest upon identical facts as to be little more than the equivalent of different epithets to characterize the same group of circumstances”, and concluded that the district court should have retained jurisdiction of the unfair competition claim despite an absence of diverse citizenship between the parties. If, in the instant case, the claim for unfair competition and the claim for patent infringement were based upon the same set of facts, the invalidity of the patent would not deprive this court of its power to dispose of the claim for unfair competition. Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 1938, 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195. Clearly, however, the two claims do not rest upon the same set of facts. In reviewing the mass of testimony and exhibits which were adduced at the trial, it becomes evident that the federal and non-federal claims are each" }, { "docid": "20965193", "title": "", "text": "153 F.2d 88. So construed, the complaint is not so deficient as to warrant the entry of judgment. The individual defendants also move to dismiss the first count against them on the ground of lack of diversity. The motion must be dismissed. The complaint alleges two distinct grounds in support of a single cause of action, one of which presents a federal question. Since the federal question is not plainly wanting in substance, we may take jurisdiction also upon the non-federal ground, under the doctrine of pendant jurisdiction. Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L. Ed. 1148. That doctrine is succinctly stated at page 245 of the opinion in 289 U.S., at page 589 of 53 S.Ct: “But the rule does not go so far as to permit a federal court to assume jurisdiction of a separate and distinct non-federal cause of action because it is joined in the same complaint with a federal cause of action. The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the non-federal cause of action.” The doctrine of pendant jurisdiction was also carefully expounded in the opinion of our Court of Appeals in Jordine v. Walling, 3 Cir., 1950, 185 F.2d 662. Order Now, March 28th, 1961, after careful consideration, it is ordered and decreed that: 1. Defendants’ motion for summary judgment on the second count be, and it is, denied. 2. The individual defendants’ motion to dismiss the first count be, and it is, denied." }, { "docid": "22850200", "title": "", "text": "tolled the statute of limitations for purposes of this case. It appears obvious that since ITC was not a party to the South Dakota action, it could not claim any benefits that might accrue relative to that suit. See 54 C.J.S. Limitations of Actions § 278 (1948). PENDENT JURISDICTION ISSUE Appellants next assert that the District Court erred in dismissing appellants’ common law fraud claim. Issue is not taken with the District Court’s determination that due to the presence of ITC (an Arkansas corporation) in the lawsuit, complete diversity between the parties was lacking. However, appellants claim the common law action should have been heard under the doctrine of pendent jurisdiction. In United Mine Workers v. Gibbs, 383 U.S. 715, at page 722, 86 S.Ct. 1130, at pages 1137-1138, 16 L.Ed.2d 218 (1966) the Su preme Court discussed the doctrine of pendent jurisdiction: “The Court held in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, that state law claims are appropriate for federal court determination if they form a separate but parallel ground for relief also sought in a substantial claim based on federal law. The Court distinguished permissible from non-permissible exercises of federal judicial power over state law claims by contrasting ‘a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a ease where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the nonfederal cause of action.’ ” As in United Mine Workers v. Gibbs, supra, the question here is, into which of the two categories suggested does this common law claim fall. The District Court stated its opinion was “that two separate causes of action are alleged, only one of which is federal in" }, { "docid": "18215744", "title": "", "text": "of judicial economy and convenience, the facts on liability being the same in both cases and the defendants in both cases being the same. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218; Wilson v. American Chain & Cable Co., 364 F.2d 558 (3rd Cir. 1966); Borror v. Sharon Steel Co., 327 F.2d 165 (3rd Cir. 1964); Raybould v. Mancini-Fattore Co., 186 F.Supp. 235 (E.D.Mich.1960); Morris v. Gimbel Bros., Inc., 246 F.Supp. 984 (E.D.Pa. 1965); and Wiggs v. City of Tullahoma, 261 F.Supp. 821 (E.D.Tenn.1966). Plaintiff having filed a motion to remand,, the case presents a very interesting question of federal removal jurisdiction. Prior to the decision in United Mine Workers v. Gibbs, supra, the leading case on pendent (or ancillary) jurisdiction over non-federal questions was Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, where the Supreme Court drew a distinction between: “ * * * a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal case averred is plainly not wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the nonfederal cause of action * * Although the court in the Gibbs case seemed willing to extend Hurn somewhat, saying: “This limited approach is unnecessarily grudging,” still in the final analysis, the court in Gibbs seems to apply Hurn as the ultimate test, at least to the extent of saying that before jurisdiction of one question, clearly within the jurisdiction of a federal court, can carry with it pendent jurisdiction over another clearly not within it, the relationship between the two must be such that, in reality, only one “Constitutional case” is involved. Applying this test in the present case," } ]

[ { "docid": "22175956", "title": "", "text": "that, without regard to the “horizontal” conspiracy between the named defendant baking companies, disputed issues of fact had been raised concerning a “vertical” conspiracy between Continental, ITT, and McKinsey. Continental contended that this allegation had been raised too late in the proceedings to be considered in connection with its motions for summary judgment. Continental raises the same argument on appeal, although it appears that the district court based its decision on other grounds. The issue presented is an unusual one. It is undisputed that Inglis’ complaint alleged a conspiracy in violation of the Sherman Act. It appears, however, that throughout much of the lengthy pretrial proceedings in this case, the parties assumed that the only conspiracy at issue was the horizontal one between the named defendants. Nevertheless, Inglis’ complaint did raise the possibility of a conspiracy between one or more of the named defendants and unnamed third parties. Inglis, however, was not required to sue all of the alleged conspirators inasmuch as antitrust coeonspirators are jointly and severally liable for all damages caused by the conspiracy. Wilson P. Abraham Construction Corp. v. Texas Industries, Inc., 604 F.2d 897, 904 n.15 (5th Cir. 1979), cert. granted sub nom. Texas Industries, Inc. v. Radcliff Materials, Inc., 449 U.S. 949, 101 S.Ct. 351, 66 L.Ed.2d 213 (1980); Walker Distributing Co. v. Lucky Lager Brewing Co., 323 F.2d 1, 8 (9th Cir. 1963), cert. denied, 385 U.S. 976, 87 S.Ct. 507, 17 L.Ed.2d 438 (1966). Nor was Inglis required to name all of the co-conspirators in its complaint. Walker Distributing Co., supra, 323 F.2d at 8. Notwithstanding these settled principles, Inglis was required, at some point, to make more concrete the nature of its “vertical” conspiracy allegations. The federal rules contemplate that the process of defining and narrowing the issues raised in the pleadings will be accomplished through discovery and other pretrial procedures. See Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1182, at 12 (1969). Through these procedures, a party may even be permitted" } ]

[ { "docid": "18423279", "title": "", "text": "effects of the alleged conspiracy. General Electric Co. v. Bucyrus-Erie Co., 563 F.Supp. 970, 975 (S.D.N.Y.1983). Fox contends that the amended complaint charges only unilateral activity. A careful reading of the amended complaint belies this assertion. Paragraph 24, incorporated by reference in the fourth and fifth claims, states, “Between October 27, 1980 and June 1981, on at least two separate occasions, in violation of the Production-Distribution Agreement, defendants agreed that defendant Fox would disburse and defendant Harrison & Associates would receive not less than $250,000 from the funds intended for the joint venturers.” Amended Complaint ¶ 24. This paragraph identifies two parties to an agreement and specifies the content of that agreement. The plaintiffs need not, as the defendant maintains, identify the consideration for the agreement. See Fed.R.Civ.P. 8. The pleadings suffice to withstand this branch of the motion to dismiss. b. Antitrust Standing and Antitrust Injury According to Fox, neither plaintiff has standing under the antitrust laws to bring its claim nor has either alleged the requisite “antitrust injury.” 1) Antitrust Standing The Supreme Court has termed the question of antitrust standing an inquiry into the conceptually difficult question of “ ‘which persons have sustained injuries too remote [from an antitrust violation] to give them standing to sue for damages____’” Blue Shield v. McCready, 457 U.S. 465, 476, 102 S.Ct. 2540, 2546, 73 L. Ed.2d 149 (1982) (quoting Illinois Brick Co. v. Illinois, 431 U.S. 720, 728 n. 7, 97 S.Ct. 2061, 2065 n. 7, 52 L.Ed.2d 707 (1977)). The Court has identified several factors that should guide the standing inquiry. Factors weighing against a grant of standing include the speculative nature of the damage theory alleged, the risk of duplicative recoveries, and the danger of complex apportionment of damages. Those that counsel for a grant of standing are the directness of the asserted injury, the presence of an improper motive for the conduct alleged, and the manageability of the resulting litigation. Associated General Contractors, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (‘‘Associated General Contractors ”); see also Triple" }, { "docid": "13606076", "title": "", "text": "an effort to circumvent Illinois Brick, plaintiffs suggested to the district court that they might seek to prove a resale price maintenance conspiracy between defendants and retail dealers. At paragraph “fourth,” the district court ruled that plaintiffs must join retail dealers as defendants if they pursue a conspiracy claim. Without benefit of specific factual allegations that the future amended complaint may contain, we express no opinion on whether a vertical conspiracy claim may be appropriate in this case. Assuming such a claim may be stated, however, we find no error in the district court’s ruling. Absent joinder of retail dealers, serious risks of duplicative recovery and inconsistent adjudications would ensue. In re Beef Industry Antitrust Litigation, supra, 600 F.2d at 1148. If plaintiffs recovered damages for a vertical conspiracy between defendants and non-party retail dealers, any of those dealers could prove in a subsequent action that they were not conspirators and, as direct purchasers, were entitled to damages arising out of the same events. In Illinois Brick, the Court expressly found unacceptable the risk of duplicative recovery created by allowing direct and indirect purchasers to claim damages resulting from a single transaction that violated the antitrust laws. 431 U.S. at 730-31, 97 S.Ct. at 2066-67. McCready, - U.S. at -, 102 S.Ct. at 2546. We also cannot accept plaintiffs’ contention that no duplicative recovery can occur here because there is no intervening market between the defendants and their retail dealers. We note that fifteen defendants in this action are named as defendants in other litigation where a certified class of lessee retail dealers, who bought gasoline from defendants during the period covered by the complaints in this case, similarly allege that defendants, through exclusive supply arrangements with their dealers, have eliminated horizontal competition at the wholesale level. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 447 (3rd Cir. 1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978). We further reject plaintiffs’ argument that an exception to a rule requiring joinder should obtain where, as here, the statute of limitations has run on direct purchasers. We note" }, { "docid": "23332295", "title": "", "text": "L.Ed.2d 723 (1983) and Blue Shield of Virginia v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982). These factors, designed in combination to put principled limits on the literally unbounded reach of the threefold damage remedy authorized by § 4 of the Clayton Act, see Associated Contractors, 459 U.S. at 529-35, 103 S.Ct. at 903-07, include: the risk of duplicative recovery by multiple antitrust claimants, Blue Shield, 457 U.S. at 474-75, 102 S.Ct. at 2545-46; Associated Contractors, 459 U.S. at 544-45, 103 S.Ct. at 911-12; the extent to which the claim is based upon speculative, abstract, or impractical measures of damages, Blue Shield, 457 U.S. at 475 n. 11, 102 S.Ct. at 2546 n. 11; see also Associated Contractors, 459 U.S. 542-45, 103 S.Ct. 910-12; the causal connection between the alleged violation and the harm suffered, Blue Shield, 457 U.S. at 476-78, 102 S.Ct. at 2546-48; see also Associated Contractors, 459 U.S. at 537, 540-42, 103 S.Ct. at 908, 909-11; and the relationship of the injury alleged to the forms of injury about which Congress was concerned when it created a private remedy Blue Shield, 457 U.S. at 478, 481-84, 102 S.Ct. at 2547, 2549-51; see also Associated Contractors, 459 U.S. at 538-40, 103 S.Ct. at 908-10. Applying these factors, we agree with the district court that any harm to Pocahontas resulting from Coal America contract terminations in 1981 and 1982 is not a cognizable antitrust injury compensable under § 4. Though there is obviously a causal relation between the conduct and harm as alleged, it is remote rather than direct. The direct antitrust injury, if any, is that of Coal America. This raises a threat of duplicative treble damages recoveries which counsels restraint in allowing recovery for more indirect injuries in a chain of causation. The ascertainment of damages based on loss of necessarily speculative royalties would necessarily be difficult and equally speculative. We also affirm the district court’s ruling that Pocahontas does not have standing to seek injunctive relief for any injury resulting from the 1981 and 1982 terminations of the Coal America contracts. The" }, { "docid": "13606084", "title": "", "text": "shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee. . The Court had previously held that in a suit by a direct purchaser, an antitrust violator may not defend on the ground that the direct purchaser has not been injured because it had passed on the illegal overcharge to its own customers. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). In Illinois Brick, the Court expressed a desire to maintain symmetry with its previous decision. . In Blue Shield v. McCready, - U.S. -, -, 102 S.Ct. 2540, 2546, 73 L.Ed.2d 149 (1982), the Court reiterated that in Illinois Brick it had concluded that “direct purchasers rather than indirect purchasers were the injured parties who as a group were most likely to press their claims with the vigor that the § 4 treble-damages remedy was intended to promote.” (citation omitted). . Prior to Illinois Brick, one court in this circuit allowed an umbrella claim. Washington v. American Pipe & Construction Co., 280 F.Supp. 802 (W.D.Wash.1968). . In Blue Shield v. McCready, - U.S. -, -, 102 S.Ct. 2540, 2547, 73 L.Ed.2d 149 (1982), the Court noted that two analytically distinct types of limitations have been imposed on the § 4 remedy: 1) those arising out of Illinois Brick and Hawaii v. Standard Oil Co., 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972), involving considerations of duplicative recovery and unwarranted evidentiary complexities engendered by speculative damage claims and 2) those arising out of claims that a particular injury is too remote from the alleged violation to accord a plaintiff standing under § 4. Because we decide this case on the basis of Illinois Brick, we need not decide whether" }, { "docid": "11653831", "title": "", "text": "direct and indirect purchasers to claim damages resulting from a single transaction that violated the antitrust laws. 431 U.S. at 730-31, 97 S.Ct. at 2066-67. [Blue Shield of Va. v.] McCready, [457] U.S. [465] at [474], 102 S.Ct. [2540] at 2546 [73 L.Ed.2d 149]. Id. at 1342. We note, however, that conflict exists in the Ninth Circuit. In 1981, the year prior to the decision in Pretrial Proceedings, a separate Ninth Circuit panel decided the case of William Inglis & Sons Baking Co. v. ITT Continental Baking Co., Inc., 668 F.2d 1014 (9th Cir.1981), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982). That court stated: The issue presented is an unusual one. It is undisputed that Inglis' complaint alleged a conspiracy in violation of the Sherman Act. It appears, however, that throughout much of the lengthy pretrial proceedings in this case, the parties assumed that the only conspiracy at issue was the horizontal one between the named defendants. Nevertheless, Inglis’ complaint did raise the possibility of a conspiracy between one or more of the named defendants and unnamed third parties. Inglis, however, was not required to sue all of the alleged conspirators inasmuch as antitrust coconspirators are jointly and severally liable for all damages caused by the conspiracy____ Nor was Inglis required to name all of the coconspirators in its complaint. Id. at 1052-53 (citations omitted) (emphasis added). The Inglis court did not discuss the issue in terms of Illinois Brick and, consequently, we do not find its reasoning to be persuasive. See also Wilson P. Abraham Construction Corp. v. Texas Industries, Inc., 604 F.2d 897 (5th Cir.1979), aff'd, 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981). In the present case, Sentry and the State also argue that because the statute of limitations has run on the claims of the coconspirators, no risk of duplicitous liability exists. Without addressing the tolling issues, we choose not to endorse this ad hoc approach. See In re Coordinated Pretrial Proceedings, 691 F.2d 1335 (9th Cir.1982), cert. denied, — U.S.—, 104 S.Ct. 972, 79 L.Ed.2d 211 (1984). The" }, { "docid": "11653832", "title": "", "text": "more of the named defendants and unnamed third parties. Inglis, however, was not required to sue all of the alleged conspirators inasmuch as antitrust coconspirators are jointly and severally liable for all damages caused by the conspiracy____ Nor was Inglis required to name all of the coconspirators in its complaint. Id. at 1052-53 (citations omitted) (emphasis added). The Inglis court did not discuss the issue in terms of Illinois Brick and, consequently, we do not find its reasoning to be persuasive. See also Wilson P. Abraham Construction Corp. v. Texas Industries, Inc., 604 F.2d 897 (5th Cir.1979), aff'd, 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981). In the present case, Sentry and the State also argue that because the statute of limitations has run on the claims of the coconspirators, no risk of duplicitous liability exists. Without addressing the tolling issues, we choose not to endorse this ad hoc approach. See In re Coordinated Pretrial Proceedings, 691 F.2d 1335 (9th Cir.1982), cert. denied, — U.S.—, 104 S.Ct. 972, 79 L.Ed.2d 211 (1984). The Supreme Court recently reaffirmed its position that the risk of duplicitous liability must be avoided. In Associated General Contractors of California, Inc. v. California State Council, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) the Court reiterated: The indirectness of the alleged injury also implicates the strong interest, identified in our prior cases, in keeping the scope of complex antitrust trials within judicially manageable limits. These cases have stressed the importance of avoiding either the risk of duplicate recoveries on the one hand, or the danger of complex apportionment of damages on the other. Thus, in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), we refused to allow the defendants to discount the plaintiffs’ damages claim to the extent that overcharges had been passed on to the plaintiffs’ customers. We noted that any attempt to ascertain damages with such precision “would often require additional long and complicated proceedings involving massive evidence and complicated theories.” Id., at 493, 88 S.Ct., at 2231. In Illinois" }, { "docid": "13606077", "title": "", "text": "duplicative recovery created by allowing direct and indirect purchasers to claim damages resulting from a single transaction that violated the antitrust laws. 431 U.S. at 730-31, 97 S.Ct. at 2066-67. McCready, - U.S. at -, 102 S.Ct. at 2546. We also cannot accept plaintiffs’ contention that no duplicative recovery can occur here because there is no intervening market between the defendants and their retail dealers. We note that fifteen defendants in this action are named as defendants in other litigation where a certified class of lessee retail dealers, who bought gasoline from defendants during the period covered by the complaints in this case, similarly allege that defendants, through exclusive supply arrangements with their dealers, have eliminated horizontal competition at the wholesale level. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 447 (3rd Cir. 1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978). We further reject plaintiffs’ argument that an exception to a rule requiring joinder should obtain where, as here, the statute of limitations has run on direct purchasers. We note that the claims in Bogosian, supra, overlap the claims at issue here. Moreover, the record indicates that plaintiffs intend to seek damages up to the time of trial for a continuing conspiracy. Under these circumstances, dealer claims against defendants covering the last four years would not be time-barred. Plaintiffs’ suggestion, therefore, does not remove the risk of multiple liability. Furthermore, we are unwilling to countenance ad hoc case-by-case exceptions to a rule of intended general application. See Illinois Brick, 431 U.S. at 743-45, 97 S.Ct. at 2073-74. We accordingly uphold the ruling of the district court that if a proper vertical conspiracy claim is alleged, joinder of retail dealers is required to prevent a serious risk of multiple liability. II. The second interlocutory appeal is from the district court’s order denying plaintiffs’ motion to certify classes of indirect purchaser retail consumers pursuant to Rule 23(b)(3), Fed.R.Civ.P. A decision denying class certification is reviewable on appeal only for abuse of discretion or for application of impermissible legal criteria. Pattillo v. Schlesinger, 625 F.2d 262, 264 (9th" }, { "docid": "18087684", "title": "", "text": "that these exceptions exist, they are very limited in their scope and application. b. The Direct Purchaser Rule and Standing The direct purchaser rule articulated in Hanover Shoe and Illinois Brick is not a standing rule. In articulating the direct purchaser rule, the Supreme Court has distinguished between the question of who can recover damages and who has standing to sue. Illinois Brick, 97 S.Ct. at 2066 n. 7 (standing under Section 4 of the Clayton Act is a conceptually distinct issue from the damage issue; Court did not decide standing issue). This makes intuitive sense, because even if a plaintiff may not present evidence to demonstrate damages under Section 4 of the Clayton Act, a plaintiff may nevertheless have standing to seek injunctive relief. The Supreme Court has identified factors to be considered by a trial court in determining whether a party has standing under Section 4 of the Clayton Act. See Assoc. General Contractors, 103 S.Ct. at 908 (“[T]he infinite variety of claims that may arise make it virtually impossible to announce a black letter rule that will dictate the result in every case.”). These factors are: “1) the specific intent of the alleged conspirators; 2) the directness of the injury; 3) the character of the damages, including the risk of duplicative recovery, the complexity of apportionment, and their speculative character; 4) the existence of other, more appropriate plaintiffs; [and] 5) the nature of the plaintiff’s claimed injury.” R.C. Dick Geothermal Corp. v. Thermogenics, Inc., 890 F.2d 139, 146 (9th Cir.1989) (citing Assoc. General Contractors, 103 S.Ct. at 912). The direct injury rule may inform the standing determination: if a party would be barred from raising damage claims by the direct purchaser rule, the Court may consider that in determining whether to grant standing. Assoc. General Contractors, 103 S.Ct. at 912 (quoting Blue Shield of Virginia v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 2547 n. 11, 73 L.Ed.2d 149 (1982)). How ever, no single factor is decisive; all must be balanced by a trial court. R.C. Dick Geothermal Corp., 890 F.2d at 146. 2. Application of Substantive" }, { "docid": "23560552", "title": "", "text": "jury that it must decide whether or not the railroads did conspire to foreclose private dock competition. There is nothing erroneous about this charge. B. Standing In addressing the “standing” of parties to bring a claim under § 4 of the Clayton Act, the Supreme Court has focused on the nexus between the antitrust violation and the plaintiffs harm and on whether the harm alleged is of the type for which Congress provides a remedy. Blue Shield of Virginia v. McCready, 457 U.S. 465, 478, 102 S.Ct. 2540, 2548, 73 L.Ed.2d 149 (1982). In determining that the plaintiffs had standing here, the district court focused on Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), in which the Supreme Court held that § 4 does not generally permit indirect purchasers' to sue on a “pass-on theory”, that is, a theory that illegal overcharges have been passed on through a chain of distribution. Three important policies -supported this holding: avoiding the risk of multiple liability for defendants, avoiding evidentiary complications in identifying affected parties and measuring their damages, and avoiding the difficulties of managing large and complex suits. Id. at 741, 745, 97 S.Ct. at 2072, 2074. Later, in Blue Shield of Virginia v. McCready, the Court discussed the range of § 4 plaintiffs, and while recognizing “a point beyond which the wrongdoer should not be held liable”, McCready, 457 U.S. at 477, 102 S.Ct. at 2547, the Court also discouraged “engraft[ing] artificial limitations on the § 4 remedy”, id. at 472, 102 S.Ct. at 2545. In Associated General Contractors, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (“AGC”), the Supreme Court synthesized its prior decisions and outlined a multi-factor inquiry to determine standing questions. Although the development' of the doctrine is important to understanding the concerns of the Court in granting or denying standing, it is the AGC analysis — the most recent, comprehensive and relevant statement by the Court — which will resolve the standing question here. We exercise plenary review over application of" }, { "docid": "12042921", "title": "", "text": "there is “no subsequent Ninth Circuit authority that affirmatively endorses a general rule applying Bhan’s reasonably interchangeable and cross-elastic requirements to the market participant inquiry in section 1 cases.” Id. at 1138 (explaining that reasonable interchangeability of use and cross-elasticity of demand are concepts traditionally important in section 2 cases where “definition of the ‘relevant market’ is key”). In AGC, the Supreme court articulated a number of factors that courts should consider when evaluating whether a plaintiff has antitrust standing. The Court identified the “nature” of the injury as the most important factor, specifically whether it is “of a type that Congress sought to redress in providing a private remedy for violations of the antitrust laws.” AGC, 459 U.S. at 538, 103 S.Ct. 897 (quoting Blue Shield of Virginia v. McCready, 457 U.S. 465, 482, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982)). The Court also instructed that courts should consider whether “a causal connection [exists] between an antitrust violation and the harm to the [plaintiff],” id. at 537, 103 S.Ct. 897; whether “the defendants intended to cause that harm,” id.; whether the plaintiff was “a consumer [or] a competitor in the market in which trade was restrained,” id. at 539, 103 S.Ct. 897; whether the interests of the plaintiff would be served by remedying the violation, id.; the directness or indirectness of the alleged injury, id. at 540,103 S.Ct. 897; and whether there are more immediate victims of the violation, such that denying standing to the plaintiff would not “leave a significant antitrust violation undetected or unremedied.” Id. In addition, the Court stated that courts should evaluate whether the plaintiffs damages are speculative and whether the plaintiffs claim would potentially lead to duplicative recovery or the complex apportionment of damages. Id. at 543, 103 S.Ct. 897 (citing Illinois Brick, 431 U.S. at 737-38, 97 S.Ct. 2061). Here, the complaint alleges that the direct purchaser plaintiffs purchased TFT-LCD products directly from cartel members at supra-competitive prices as the result of a conspiracy to fix prices. DP-CC ¶¶ 9-20. Defendants do not cite any case holding that a plaintiff who purchases directly" }, { "docid": "11653829", "title": "", "text": "permits recognizing the exception when, as here, the alleged co-conspirator middlemen are not named as parties defendant. Absent joinder of the packers and slaughterhouses, the rule forbidding one antitrust conspirator from maintaining an action against another for damages arising from the joint activity would not protect these defendants from the risk of overlapping liability. The retail chains could not, in a suit brought by the packers, use a judgment or finding of vertical conspiracy in the instant case to prevent the packers from successfully asserting in their own lawsuit that they did not in fact conspire with the chains and are therefore not barred by the co-conspirator doctrine from recovering damages from the retail chains. E.g., Mosher Steel Corp. v. N.L.R.B., 5 Cir.1978, 568 F.2d 436. Because the packers are not parties to this suit, the possibility of inconsistent adjudications on the issue of the existence of a vertical conspiracy leaves the defendants subject to the risk of multiple liability that the Illinois Brick Court found unacceptable. Id. at 1163 (emphasis added). See also In re Coordinated Pretrial Proceedings, 497 F.Supp. 218, 228 (C.D.Cal.1980), aff'd, 691 F.2d 1335, 1341-2 (9th Cir.1982), cert. denied, — U.S. —, 104 S.Ct. 972, 79 L.Ed.2d 211 (1984); In re Mid-Atlantic Toyota Antitrust Litigation, 516 F.Supp. 1287, 1296 (D.Md.1981); Dart Drug Corp. v. Corning Glass Works, 480 F.Supp. 1091, 1103-04 (D.Md.1979). The same reasoning set forth in In re Beef was applied in In re Coordinated Pretrial Proceedings, 691 F.2d 1335 (9th Cir.1982), cert. denied, — U.S. —, 104 S.Ct. 972, 79 L.Ed.2d 211 (1984). As stated in Pretrial Proceedings: Absent joinder of retail dealers, serious risks of duplicative recovery and inconsistent adjudications would ensue. In re Beef Industry Antitrust Litigation, supra, 600 F.2d at 1148. If plaintiffs recovered damages for a vertical conspiracy between defendants and non-party retail dealers, any of those dealers could prove in a subsequent action that they were not conspirators and, as direct purchasers, were entitled to damages arising out of the same events. In Illinois Brick, the Court expressly found unacceptable the risk of duplicative recovery created by allowing" }, { "docid": "2670914", "title": "", "text": "decisions in Blue Shield of Virginia v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982) and Associated General Contractors of California, Inc. v. California State Council of Carpenters,-U.S.-, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). In McCready plaintiff Carol McCready (McCready) subscribed to a group health plan which had been purchased by her employer, Prince William County, Virginia, from defendant Blue Shield of Virginia (Blue Shield). The Blue Shield health plan authorized reimbursement to subscribers for psychotherapy services provided by psychiatrists but did not provide similar reimbursement for services rendered by psychologists unless the treatment was supervised by and billed through a physician. McCready engaged the services of a psychologist and was subsequently denied reimbursement by Blue Shield in accordance with the plan’s provisions. McCready thereupon initiated a class action alleging that Blue Shield and the Neuropsychiatric Society of Virginia, Inc. had conspired in violation of § 1 of the Sherman Act, 15 U.S.C. § 1, to exclude and boycott clinical psychologists from receiving compensation under Blue Shield group health plans. The Fourth Circuit, applying the target area doctrine, adjudged that McCready’s loss was not “too remote” or indirect to be covered by the Act. 649 F.2d 228 (4th Cir.1981). Affirming, the Supreme Court majority in McCready concluded that deference to statutory policy had prompted acknowledgement of two categories of judicial confinement of the § 4 remedy: (1) cases presenting-a risk of duplicative recovery and (2) cases wherein the persons “sustained injuries too remote [from an antitrust violation] to give them standing to sue for damages under § 4”. 102 S.Ct. at 2547, citing Illinois Brick Co. v. Illinois, 431 U.S. 720, 728 n. 7, 97 S.Ct. 2061, 2065 n. 7, 52 L.Ed.2d 707 (1977). Two areas of sub-analysis were employed by the Court to identify those injuries characterized as “too remote”: [W]e look (1) to the physical and economic nexus between the alleged violation and the harm to the plaintiff, and (2) more particularly, to the relationship of the injury alleged with those forms of injury about which Congress was likely to have been concerned in" }, { "docid": "13731685", "title": "", "text": "31, 481 F.2d at 129; see McCready, - U.S. at -, 102 S.Ct. at 2549 (citing language). We need not, in the Supreme Court’s remoteness formulation, examine the “physical and economic nexus between the alleged violation and the harm to the plaintiff,” and “the relationship of the injury alleged with those forms of injury about which Congress was likely to have been concerned ... in providing a private remedy under § 4,” McCready, - U.S. at —, 102 S.Ct. at 2548, because we find that granting Stein standing would violate the second statutory policy limitation on antitrust recovery, that of double recovery, see id. at -, 102 S.Ct. at 2546. The Supreme Court first expressed this policy in Hawaii v. Standard Oil Co., 405 U.S. 251, 262-64, 92 S.Ct. 885, 891-892, 31 L.Ed.2d 184 (1972), when it denied Hawaii standing to sue for injury to the state’s general economy arising from anticompetitive activity, in part because it was unwilling to “open the door to duplicative recoveries.” The Court enforced this limitation most clearly in Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). The Court there denied standing to an indirect purchaser who alleged that illegal anticompetitive overcharges had been passed on to it, because allowing such recovery would create a “serious risk of multiple liability for defendants.” Id. at 730-31, 97 S.Ct. at 2066-2067. See generally Handler, Changing Trends in Antitrust Doctrines: An Unprecedented Supreme Court Term — 1977, 77 Colum.L.Rev. 979, 989-1004 (1977) (discussing related doctrines of standing, antitrust injury, and passed-on damages). Hawaii and Illinois Brick thus “focused on the risk of duplicative recovery engendered by allowing every person along a chain of distribution to claim damages arising from a single transaction that violated the antitrust laws.” McCready, - U.S. at -, 102 S.Ct. at 2546. The prevention of possibly duplicate recoveries supports limiting the section 4 remedy. Id.; see Mid-West Paper Products Co. v. Continental Group, 596 F.2d 573, 583 (3d Cir. 1979); Calderone Enterprises Corp. v. United Artists Theatre Circuit, Inc., 454 F.2d 1292, 1295 (2d Cir. 1971), cert." }, { "docid": "11653830", "title": "", "text": "re Coordinated Pretrial Proceedings, 497 F.Supp. 218, 228 (C.D.Cal.1980), aff'd, 691 F.2d 1335, 1341-2 (9th Cir.1982), cert. denied, — U.S. —, 104 S.Ct. 972, 79 L.Ed.2d 211 (1984); In re Mid-Atlantic Toyota Antitrust Litigation, 516 F.Supp. 1287, 1296 (D.Md.1981); Dart Drug Corp. v. Corning Glass Works, 480 F.Supp. 1091, 1103-04 (D.Md.1979). The same reasoning set forth in In re Beef was applied in In re Coordinated Pretrial Proceedings, 691 F.2d 1335 (9th Cir.1982), cert. denied, — U.S. —, 104 S.Ct. 972, 79 L.Ed.2d 211 (1984). As stated in Pretrial Proceedings: Absent joinder of retail dealers, serious risks of duplicative recovery and inconsistent adjudications would ensue. In re Beef Industry Antitrust Litigation, supra, 600 F.2d at 1148. If plaintiffs recovered damages for a vertical conspiracy between defendants and non-party retail dealers, any of those dealers could prove in a subsequent action that they were not conspirators and, as direct purchasers, were entitled to damages arising out of the same events. In Illinois Brick, the Court expressly found unacceptable the risk of duplicative recovery created by allowing direct and indirect purchasers to claim damages resulting from a single transaction that violated the antitrust laws. 431 U.S. at 730-31, 97 S.Ct. at 2066-67. [Blue Shield of Va. v.] McCready, [457] U.S. [465] at [474], 102 S.Ct. [2540] at 2546 [73 L.Ed.2d 149]. Id. at 1342. We note, however, that conflict exists in the Ninth Circuit. In 1981, the year prior to the decision in Pretrial Proceedings, a separate Ninth Circuit panel decided the case of William Inglis & Sons Baking Co. v. ITT Continental Baking Co., Inc., 668 F.2d 1014 (9th Cir.1981), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982). That court stated: The issue presented is an unusual one. It is undisputed that Inglis' complaint alleged a conspiracy in violation of the Sherman Act. It appears, however, that throughout much of the lengthy pretrial proceedings in this case, the parties assumed that the only conspiracy at issue was the horizontal one between the named defendants. Nevertheless, Inglis’ complaint did raise the possibility of a conspiracy between one or" }, { "docid": "2928475", "title": "", "text": "evidence to determine how the overcharge was apportioned throughout the distribution chain. 431 U.S. at 731-32, 745, 97 S.Ct. at 2067, 2074. The Court in Illinois Brick expressly noted, however, that the newly announced rule barring damage suits by indirect purchasers was not absolute. Whether allegations of a retail price-fixing conspiracy such as the one alleged by the consumers would avoid the bar of Illinois Brick was expressly reserved by this circuit in In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 691 F.2d 1335, 1341 n. 9 (9th Cir.1982); see also In re Beef Industry Antitrust Litigation, 600 F.2d 1148, 1161-63 (5th Cir.1979) (also reserving issue), cert. denied, 449 U.S. 905, 101 S.Ct. 280, 66 L.Ed.2d 137 (1980). Numerous other courts have found Illinois Brick inapplicable to claims against remote sellers when the plaintiffs allege that the sellers conspired with intermediates in the distribution chain to fix the price at which the plaintiffs purchased. See, e.g., Fontana Aviation, Inc. v. Cessna Aircraft Co., 617 F.2d 478 (7th Cir.1980); In re Mid-Atlantic Toyota Antitrust Litigation, 516 F.Supp. 1287, 1295-96 (D.Md.1981); Reiter v. Sonotone Corp., 486 F.Supp. 115, 119-20 (D.Minn.1980); Abrams v. Interco Inc., 1980-2 Trade Cas. ¶ 63,292 at 75,552 (S.D.N.Y.1980); Vermont v. Densmore Brick Co., 1980-2 Trade Cas. ¶ 63,347, at 75,778 (D.Vt.1980); Florida Power Corp. v. Granlund, 78 F.R.D. 441, 443 (D.Fla.1978); In re Anthracite Coal Antitrust Litigation, 1978-1 Trade Cas. ¶ 62,059, at 74,587, 74,590 (D.Pa.1978); Gas-A-Tron of Arizona v. American Oil Co., 1977-2 Trade Cas. ¶ 61,789, at 73,245 (D.Ariz.1977); see also Donson Stores, Inc. v. American Bakeries Co., 58 F.R.D. 481, 485 (S.D.N.Y.1973) (preIllinois Brick); Note, Scaling the Illinois Brick Wall: The Future of Indirect Purchasers in Antitrust Litigation, 63 Cornell L.Rev. 309, 331-32 (1978). We examine the facts of the present case to determine if the policies underlying Illinois Brick require dismissal of the consumers’ action. Blue Shield v. McCready, 457 U.S. 465, 473, 102 S.Ct. 2540, 2546, 73 L.Ed.2d 149 (1982); In re Petroleum Products Litigation, 691 F.2d at 1339. 1. Double Recovery Shamrock argues that if the consumers are allowed to" }, { "docid": "19734159", "title": "", "text": "because they cannot, as a matter of law, be injured by a conspiracy to raise market prices. (ChevronTexaco Corp.’s Mem. of P. & A. in Supp. of Mot. to Dismiss (“Mot. to Dismiss”) at 10-11.) ChevronTexaco asserts that unlawfully increased gas prices form “the basis of plaintiffs’ Sherman Act Claims.” (Id. at 10.) Although it is true that plaintiffs’ Sherman Act claims are grounded in defendants’ alleged price inflation, plaintiffs do not claim that they compete with defendants in the wholesale market, where defendants allegedly raised prices. Rather, plaintiffs claim they compete with defendants in the retail market, where defendants allegedly sold natural gas at a reduced price. (2d Supp.ComplA 11.) Because plaintiffs do not claim they compete with defendants in the wholesale market, where defendants allegedly inflated prices, their alleged antitrust injury is not barred as a matter of law. C. The Directness of the Injury The antitrust laws have never been interpreted “to allow suit by every party affected by an antitrust violation’s ‘ripple of harm.’ ” Adams v. Pan Am. World Airways, Inc., 828 F.2d 24, 26 (D.C.Cir.1987) (quoting Blue Shield of Va. v. McCready, 457 U.S. 465, 476-77, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982)). Indirect purchasers are barred “from asserting claims for damages based on any overcharges they may have paid as an indirect purchaser of defendants.” In re Vitamins Antitrust Litig., No. 99-197, 2001 WL 855463, at *1 (D.D.C. July 2, 2001); see also Stern v. Lucy Webb Hayes Nat'l Training School for Deaconesses & Missionaries, 367 F.Supp. 536, 538 (D.D.C.1973). It is inappropriate, however, to deny indirect purchasers antitrust standing where “the direct purchaser is owned or controlled by its customer.” Ill. Brick Co. v. Illinois, 431 U.S. 720, 737 n. 16, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). Control is a “functional economic or other unity between the direct purchaser and either the defendant or the indirect purchaser [such that] there effectively has been only one sale.” Jewish Hosp. Ass’n of Louisville, Ky., Inc., v. Stewart Mech. Enters., 628 F.2d 971, 975 (6th Cir.1980). This type of economic unity can exist “through" }, { "docid": "18423280", "title": "", "text": "Court has termed the question of antitrust standing an inquiry into the conceptually difficult question of “ ‘which persons have sustained injuries too remote [from an antitrust violation] to give them standing to sue for damages____’” Blue Shield v. McCready, 457 U.S. 465, 476, 102 S.Ct. 2540, 2546, 73 L. Ed.2d 149 (1982) (quoting Illinois Brick Co. v. Illinois, 431 U.S. 720, 728 n. 7, 97 S.Ct. 2061, 2065 n. 7, 52 L.Ed.2d 707 (1977)). The Court has identified several factors that should guide the standing inquiry. Factors weighing against a grant of standing include the speculative nature of the damage theory alleged, the risk of duplicative recoveries, and the danger of complex apportionment of damages. Those that counsel for a grant of standing are the directness of the asserted injury, the presence of an improper motive for the conduct alleged, and the manageability of the resulting litigation. Associated General Contractors, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (‘‘Associated General Contractors ”); see also Triple M. Roofing Corp. v. Tremco, Inc., 753 F.2d 242, 247 (2d Cir.1985) (listing factors). The defendant’s objection to ITP’s standing borders on the ludicrous. None of the factors weigh against granting standing to ITP; in fact, most weigh in its favor. ITP is the direct victim of the allegedly unlawful conspiracy. The potential for duplicative recoveries or complex apportionment of damages is nil, and the rela tionship between the conduct alleged and the alleged injury is neither tenuous nor speculative. Dicta from the Supreme Court’s opinion in Associated General Contractors supports our conclusion that ITP has antitrust standing to assert its claims. The plaintiffs in that case, various unions and their local affiliates, claimed that the Associated General Contractors, an association of building and construction contractors, conspired with members and nonmembers of their association in an effort to coerce subcontractors to refrain from hiring members of the plaintiff unions. “According to the complaint, defendants applied coercion against certain landowners and other contracting parties in order to cause them to divert business from certain union contractors" }, { "docid": "13606068", "title": "", "text": "products only if the conspiring retail dealers are joined as parties defendant.” For the reasons set forth below, we affirm these rulings. Paragraph “Third” Paragraph “third” dismissed plaintiffs’ claims for damages sought under an “umbrella” theory of liability. Plaintiffs contend that defendants’ successful price-fixing conspiracy created a “price umbrella” under which non-conspiring competitors of the defendants raised their gasoline prices to an artificial level at or near the fixed price. Since defendants are allegedly responsible for creating a market situation where conduct of this nature is possible, plaintiffs argue that defendants should be held responsible for damages resulting from their competitors’ higher prices. The umbrella theory is essentially a consequential damages theory. It seeks to hold price-fixers liable for harm allegedly flowing from the illegal conduct even though the price-fixing defendants received none of the illegal gains and were uninvolved in their competitors’ pricing decisions. Since the decision in Illinois Brick, at least one district court has allowed plaintiffs to proceed under an umbrella theory. In re Bristol Bay, Alaska, Salmon Fishery Antitrust Litigation, 530 F.Supp. 36 (W.D.Wash.1981). The Third Circuit, however, has expressly rejected its use. Mid-West Paper Products Co. v. Continental Group, Inc., 596 F.2d 573 (3d Cir. 1979). Although the Court in Illinois Brick was not faced with an umbrella claim, the rationale for its decision barring indirect purchasers from seeking antitrust damages must be considered in determining the viability of an umbrella theory of liability. In Illinois Brick, plaintiffs attempted to recover damages from defendants who allegedly had overcharged the sellers from whom the plaintiffs purchased. The plaintiffs claimed that their immediate sellers passed on the overcharges to them. In rejecting the offensive use of a pass-on theory, the Court noted the possibility of duplicative recovery if both direct and indirect purchasers could claim damages resulting from a single overcharge by an antitrust defendant. 431 U.S. at 730-31, 97 S.Ct. at 2066-67. The Court reasoned that, by concentrating the recovery in direct purchasers rather than among a broad class of potentially affected plaintiffs, the antitrust laws would be enforced more effectively. The Court further noted the" }, { "docid": "6279337", "title": "", "text": "seamless web. In fact, as we have had occasion to observe previously, this area of the law is rife with “doctrinal confusion.” In re Uranium Antitrust Litigation, 473 F.Supp. 393, 401 (N.D.Ill.1979). However, our analysis is aided by the Supreme Court’s recent opinion in Blue Shield of Virginia v. MeCready, - U.S. -, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982), which clarifies somewhat the analysis required under the rubric of antitrust standing. The Court identified two types of limitations on the ability of private par ties to sue under the antitrust laws which are embodied in the law of antitrust standing. A party seeking to recover damages must demonstrate first that it is an appropriate party to bring suit and second that it has suffered a direct injury of the type that antitrust laws were intended to recompense. See 102 S.Ct. at 2545-48. The first limitation identified by the Court attempts to filter out claims which, if permitted, would lead to unfair or unworkable results. For example, this doctrine prevents indirect purchasers of goods from recovering higher prices which they have been forced to pay because of antitrust violations, since allowing the indirect purchasers a right of recovery in addition to the recovery already permitted direct purchasers under § 4 would create an intolerable risk of duplicative recoveries, see McCready, 102 S.Ct. at 2546; Illinois Brick Co. v. Illinois, 431 U.S. 720, 730-31, 97 S.Ct. 2061, 2066-2067, 52 L.Ed.2d 707; and because it would be difficult if not impossible to determine the amount of damages due to the difficulty of tracing the higher prices charged by the original seller through to the price paid by the indirect purchaser, see id. at 731-32, 741-45,97 S.Ct. at 2067, 2072-2074. Similarly, a state cannot sue to recover damages to its economy caused by antitrust violations because of the difficulty of measuring those damages and the risk of double recovery such actions would create, see McCready, 102 S.Ct. at 2546; Reiter v. Sonotone Corp., 442 U.S. 330, 342, 99 S.Ct. 2326, 2332, 60 L.Ed.2d 931 (1979); Hawaii v. Standard Oil Co., 405 U.S. 251," }, { "docid": "2928474", "title": "", "text": "overcharges passed on to them by intermediates in the distribution chain who purchased directly from the al leged antitrust violator. 431 U.S. at 746, 97 S.Ct. at 2074. The Court recognized that indirect purchasers, even when able to trace an injury to an antitrust violation, are not in the “preferred position as private attorneys general” intended by Congress to enforce the antitrust laws. Id. The Court relied on two policy considerations to support its conclusion. First, it found that allowing every person along a chain of distribution to claim damages arising from a single violation of the antitrust laws would create a risk of duplicative recovery against the violator unintended by Congress. 431 U.S. at 730, 97 S.Ct. at 2066. The Court reasoned that direct purchasers absorb at least some and often most of the overcharges and are more likely to come forward to collect their damages. 431 U.S. at 746-47, 97 S.Ct. at 2074-75. Second, the Court sought to avoid increasing the cost and burden of antitrust actions with complicated damage theories necessitating massive evidence to determine how the overcharge was apportioned throughout the distribution chain. 431 U.S. at 731-32, 745, 97 S.Ct. at 2067, 2074. The Court in Illinois Brick expressly noted, however, that the newly announced rule barring damage suits by indirect purchasers was not absolute. Whether allegations of a retail price-fixing conspiracy such as the one alleged by the consumers would avoid the bar of Illinois Brick was expressly reserved by this circuit in In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 691 F.2d 1335, 1341 n. 9 (9th Cir.1982); see also In re Beef Industry Antitrust Litigation, 600 F.2d 1148, 1161-63 (5th Cir.1979) (also reserving issue), cert. denied, 449 U.S. 905, 101 S.Ct. 280, 66 L.Ed.2d 137 (1980). Numerous other courts have found Illinois Brick inapplicable to claims against remote sellers when the plaintiffs allege that the sellers conspired with intermediates in the distribution chain to fix the price at which the plaintiffs purchased. See, e.g., Fontana Aviation, Inc. v. Cessna Aircraft Co., 617 F.2d 478 (7th Cir.1980); In re Mid-Atlantic Toyota Antitrust" } ]

[ { "docid": "9667757", "title": "", "text": "substituted a competing view of the facts for the ALJ’s reasonable factual determinations. We note that apparently nothing in the ALJ’s factual findings, and certainly nothing in our view of the substantial evidence supporting those findings, hinges on the fact that Pasula required Phelps Dodge to bear a burden of persuasion on its defense rather than a burden of production. We therefore have no occasion to consider attacks by the Secretary and Phelps Dodge on the allocation of burdens of proof established in Pasula, see Boich v. FMSHRC, 704 F.2d 275 (6th Cir.1983) (striking Pasula rule that employer bears burden of persuasion on defense, rather than mere burden of production). Ill The petition for review is granted and the case remanded to the Commission for disposition consistent with this opinion. It is so ordered. . The section reads in part: No person shall discharge or in any manner discriminate against ... or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal or other mine subject to this chapter because such miner, representative of miners or applicant for employment has filed or made a complaint under or related to this chapter, including a complaint notifying the operator or the operator’s agent, or the representative of the miners at the coal or other mine of an alleged danger or safety or health violation in a coal or other mine, ... or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded by this chapter. 30 U.S.C. § 815(c)(1) (Supp. V 1981). . In granting the petition, the Commission limited review to the issues raised in section IV(E) of the petition. J.A. 394. That section bore the heading: “The [ALJ’s] Decision That MSHA Had Sustained Its Burden of Proof and/or Burden of Establishing A Prima Facie Case Is Clearly Contrary to Established Principals [sic] of Law.” J.A. 386. The Commission declined to grant review on the remainder of the petition, several portions of which enumerated" } ]

[ { "docid": "21549613", "title": "", "text": "Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS. HARRY T. EDWARDS, Circuit Judge: This case involves a petition for review of a decision of the Federal Mine Safety and Health Review Commission (“FMSHRC” or “Commission”). The petitioner, John Gilbert, a miner working for Sandy Fork Mining Company (“Sandy Fork”), claims that he was fired by Sandy Fork because of his refusal to perform work that he reasonably believed to be unsafe, and that this action by the employer violated section 105(c)(1) of the Federal Mine Safety and Health Act of 1977 (“Act” or “Mine Act”), 30 U.S.C. § 815(c)(1) (1982). The Commission adopted the finding of an Administrative Law Judge (“AU”) that Gilbert lacked good faith when he refused to work; accordingly, FMSHRC rejected Gilbert’s claim that he was the subject of a discriminatory discharge in violation of the Act. FMSHRC also held that Gilbert had no right to initiate an action in his own behalf under section 105(c)(3) of the Act prior to a determination by the Secretary of Labor (“Secretary”) as to whether a violation of section 105(c) had occurred. Because Gilbert filed his complaint before the Secretary had made this determination, and because the Secretary subsequently filed a complaint on behalf of Gilbert, the Commission dismissed Gilbert’s individual complaint. Gilbert petitions this court to reverse the Commission’s dismissal of his individual complaint, and to set aside the Commission’s judgment on the merits of his claim under the Act. On the merits of the case, we can find no basis in the record before us to support the Commission’s judgment against Gilbert. We therefore reverse and remand for further consideration by FMSHRC. We also remand for further consideration of Gilbert’s individual complaint. The ALJ found that, under then-extant Commission rules, Gilbert properly filed an individual action under section 105(c)(3) when the Secretary failed to act on his complaint within 90 days. The Secretary petitioned FMSHRC for discretionary review of the AU’s determination on this point. Pursuant to the Secretary’s petition, the Commission overturned the rule under which Gilbert had filed his individual complaint, and adopted" }, { "docid": "239889", "title": "", "text": "motive. The FMSHRC acknowledged that decisions under other employment discrimination statutes reject this subjective test and adopt, instead, the analysis used by the AU; in a Delphic pronouncement, however, the Commission dismissed cases under other statutes as inapposite and stated that “section 105 of the Mine Act is essentially an anti-retaliation provision.” Id. Simpson, joined by the Secretary of Labor, asserts that the Commission’s proof standard is incompatible with the broad remedial purpose of the Mine Act. Congress’ paramount concern for miner safety, in their view, is ill-served by requiring miners to prove operator motivation. See 30 U.S.C. § 801(a) (declares miner safety “the first priority and concern”). Jackson answers, essentially, that we should defer to Commission’s standard as a reasonable construction of the Mine Act, a position that finds some support in decisions of the two federal circuits in which the subjective constructive discharge analysis persist. See Yates v. AVCO Corp., 819 F.2d 630 (6th Cir.1987) (Title VII); Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th Cir.1981) (same). Jackson’s brief also features selected passages from Clark, 665 F.2d 1168, which suggest that employer intention is relevant to the constructive discharge doctrine this circuit employs under Title VII. Respondent’s Brief at 25. But see Hopkins v. Price Waterhouse Inc., 825 F.2d 458, 472 (D.C.Cir.1987) (majority and dissent approve objective constructive discharge standard). In Clark, however, we expressly rejected a motivation test identical to the one adopted by the Commission, noting that “an employer’s subjective intent is irrelevant” to the issue of constructive discharge. 665 F.2d at 1175 & n. 8. In light of the acceptance of an objective constructive discharge standard in Title VII cases, id., the predominance of this standard across a range of remedial antidiscrim-ination statutes, see supra notes 8 and 9, and the Secretary of Labor’s support for the AU’s reasoning, Brief for Amicus Curiae at 11-12, the Commission cannot defend its decision simply by invoking the court’s general obligation to defer to reasonable agency interpretations of their organic statutes. Mead Johnson Pharmaceutical Group v. Bowen, 838 F.2d 1332, 1335 (D.C.Cir.1988). We have previously noted that" }, { "docid": "21549627", "title": "", "text": "In a decision dated August 25, 1987, FMSHRC concluded that “substantial evidence supports the judge’s finding that Gilbert was not discharged but voluntarily gave up his job at a point in time when he was not faced with a hazard justifying a refusal to work at that time.” 9 F.M.S.H. R.C. at 1386. The Commission therefore adopted the AU’s conclusion that section 105(c)(1) had not been violated. The Commission also held that the AU had erred in denying the Secretary’s motion to dismiss Gilbert’s individual complaint filed pursuant to Commission Procedural Rule 40(b). The Commission observed that the “intent of this procedural rule was to protect miners from prejudicial delay by the Secretary in filing discrimination complaints and to encourage the Secretary to meet his statutory responsibilities under section 105(c) in a timely manner.” Id. Nevertheless, the Commission noted that the Secretary, who until this time had not objected to the rule, now argued that Rule 40(b)’s authorization of a private complaint prior to the Secretary’s determination conflicted with the enforcement schemes set forth in section 105(c) of the Mine Act. Id. The Commission therefore deleted the clause in Rule 40(b) that permitting the filing of individual actions when the Secretary has not made a determination of a violation within 90 days. The Commission stated that its decision was to apply “prospectively and also to any such individual complaints pending presently before the Commission,” id. at 1338-39, including this case and its companion case, Chaney Creek Coal Co. v. FMSHRC, 9 F.M.S.H.R.C. 1314 (1987), rev’d on other grounds, 866 F.2d 1424 (D.C.Cir.1989). Gilbert has petitioned this court for review both of his discrimination claim and the dismissal of his individual action. II. Analysis A. The Discrimination Claim It is by now well settled that section 105(c)(1) protects a miner’s right to refuse work under conditions that he reasonably and in good faith believes to be hazardous. See Secretary ex rel. Bush v. Union Carbide Corp., 5 F.M.S.H.R.C. 993, 997 (1983); Secretary ex rel. Robinette v. United Castle Coal Co., 3 F.M.S.H.R.C. 803 (1981). Although the Mine Act does not state" }, { "docid": "239869", "title": "", "text": "me none.” Simpson, when he left his job, did not notify foreman Noe, mine operator Jackson, or anyone else in authority, of the reasons for his refusal to continue working at the Black Joe Mine. Simpson knew that Jackson’s home was within a few miles of his own, yet Simpson apparently made no attempt to communicate with Jackson until December 1982. Simpson then told Jackson that he had left work in September because there was at that time no boss and no test auger at the mine. Having heard through a member of the crew that the mine now had both, Simpson asked Jackson for his job back. Jackson refused, saying he had no openings. Jackson also warned Simpson, “[n]ext time you’ll learn not to get a wild hair.” Simpson thereupon filed a complaint with the FMSHRC, alleging that Jackson and Kenta Energy had discriminated against him in violation of section 105(c)(1) of the Mine Act, 30 U.S.C. § 815(c)(1). Complaint, Joint Appendix (J.A.) iii. Section 105(c)(1) prohibits mine operators from discriminating against miners for asserting rights conferred by the Mine Act, including, in the Commission’s view, the right to refuse to work in conditions the miner reasonably and in good faith believes to be hazardous. See Miller v. Federal Mine Safety & Health Review Commission, 687 F.2d 194, 195-96 (7th Cir.1982); Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981). After an investigation by the Mine Safety and Health Administration, the Secretary of Labor declined to prosecute and Simpson pursued the claim through private counsel. After a hearing, the ALJ concluded that Simpson had “quit work in good faith because of concerns for his safety,” and that Simpson’s safety concerns were reasonable. Simpson v. Kenta Energy, Inc., 6 FMSHRC 1454, 1460 (1984). The ALJ therefore held that Simpson’s work refusal was protected by the Mine Act. Id. The Commission ordinarily requires those asserting Mine Act protection to communicate their reasons for a work refusal to the operator. Citing Commission precedent, the ALJ observed that this communication requirement is not critical when notice to the" }, { "docid": "7582681", "title": "", "text": "affirmed the AU in all three cases. Secretary of Labor ex rel. Smith v. Stafford Construction Co., 5 F.M.S.H.R.C. 618 (1983). The Secretary of Labor now petitions this court for review of the Commission’s decision in the Anderson case. The Company has not sought further review of the Smith decisions. II. Analysis Our standard for reviewing the Commission’s findings is the same standard that governs FMSHRC review of AU findings of fact: we must uphold the Commission’s findings if they are supported by substantial evidence. See 30 U.S.C. § 816(a)(1) (Supp. Y 1981) (“findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive” in subsequent judicial review proceedings); compare Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 87 (D.C.Cir.1983) (“Unlike the Administrative Procedure Act, ... the Commission’s generic statute limits the agency’s review of an AU’s findings of fact to an inquiry into whether they are supported by substantial evidence.”) (citing 30 U.S.C. § 823(d)(2)(A) (Supp. V 1981)). This court may, of course, reject erroneous legal conclusions of the Commission, especially those that “would [otherwise] frustrate the congressional purpose to encourage the reporting of safety violations____” Baker v. Interior Board of Mine Operations Appeals, 595 F.2d 746, 749 (D.C.Cir.1978). Initially, it should be noted that we have no reason to question the AU’s holding that Anderson was a “miner” under 30 U.S.C. § 802(g) (Supp. V 1981), even though she was not directly involved in the extraction process. See 3 F.M.S.H.R.C. at 2196 (citing National Industrial Sand Association v. Marshall, 601 F.2d 689 (3d Cir.1979)). Furthermore, even if Anderson did not qualify as a “miner” within the meaning of the Act, she would be protected against retaliation for providing testimony in federal mine safety proceedings involving the Company. Cf. I The Developing Labor Law 262 (C. Morris ed., 2d ed. 1983) (noting that the NLRB has held that even employees who are otherwise not covered under National Labor Relations Act are protected against retaliation for filing charges or giving testimony in Board" }, { "docid": "239888", "title": "", "text": "Act of 1964, 42 U.S.C. §§ 2000e et seq. See Clark v. Marsh, 665 F.2d 1168 (D.C.Cir.1981). The same test also is employed in adjudicating constructive discharge claims under other statutes that protect employees exercising statutory rights from adverse job action. The standard applied by the AU, although in wide use, was rejected by the Commission. The FMSHRC recognized the “blatant violations of the Mine Act” at the Black Joe Mine, 8 FMSHRC at 1038, and assumed for analytical purposes that Simpson’s work refusal had been protected. Id. at 1040. Nevertheless, the Commission overturned the AU’s finding of constructive discharge because “no evidence in this record [showed] that Jackson or Kenta were motivated to create or maintain the conditions” in order to force Simpson to quit. Id. Under the subjective standard announced by the Commission, a miner must prove that an operator imposed intolerable working conditions with the specific intent of retaliating for protected activity. According to the Commission, a constructive discharge claim like Simpson’s must fail absent proof that the operator harbored a retaliatory motive. The FMSHRC acknowledged that decisions under other employment discrimination statutes reject this subjective test and adopt, instead, the analysis used by the AU; in a Delphic pronouncement, however, the Commission dismissed cases under other statutes as inapposite and stated that “section 105 of the Mine Act is essentially an anti-retaliation provision.” Id. Simpson, joined by the Secretary of Labor, asserts that the Commission’s proof standard is incompatible with the broad remedial purpose of the Mine Act. Congress’ paramount concern for miner safety, in their view, is ill-served by requiring miners to prove operator motivation. See 30 U.S.C. § 801(a) (declares miner safety “the first priority and concern”). Jackson answers, essentially, that we should defer to Commission’s standard as a reasonable construction of the Mine Act, a position that finds some support in decisions of the two federal circuits in which the subjective constructive discharge analysis persist. See Yates v. AVCO Corp., 819 F.2d 630 (6th Cir.1987) (Title VII); Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th Cir.1981) (same). Jackson’s brief also features selected" }, { "docid": "239873", "title": "", "text": "Commission declared, does not suffice to support a finding of futility. 8 FMSHRC at 1039-40. Because Jackson might have responded to Simpson’s concerns had they been communicated, the Commission concluded, Simpson’s work refusal was unprotected by the Mine Act. While acknowledging case law support for the constructive discharge analysis adopted by the AU and endorsed by the Secretary of Labor, the Commission announced a more restrictive standard: it held that retaliatory motive must be shown in order to make out a claim of discriminatory discharge under the Mine Act. To meet this subjective standard, a miner asserting constructive discharge must prove that the operator created intolerable conditions with the specific intention of forcing the miner to quit. Even if Simpson had engaged in protected activity, the Commission said, the requisite demonstration of intent had not been made. 8 FMSHRC at 1040-41. In a footnote, the Commission also reversed the AU’s determination that Kenta Energy and Jackson engaged in a separate act of unlawful discrimination by refusing to rehire Simpson. The Commission said, with no further explanation, that this determination had “insufficient record support.” 8 FMSHRC at 1041 n. 4. Finally, the Commission addressed Simpson’s motion to reopen the proceedings to determine if the Black Joe Coal Company, as a legal successor to Kenta Energy, should assume liability for the AU’s judgment against Kenta Energy. Although Kenta Energy, unlike Jackson, had not petitioned for review of the AU’s decision, the Commission ruled that, there being “no violation of the Act, there is no liability on behalf of any respondent. In these circumstances, Simpson’s argument that he has a binding judgment against Kenta because Kenta did not separately seek review is rejected.” 8 FMSHRC at 1041. The Commission thus denied Simpson's motion, essentially to substitute Black Joe Coal Company for Kenta Energy, by vacating, on its own motion, Simpson’s judgment against Kenta. In this petition for review, Simpson asks that we reverse the Commission’s decision and approve the AU’s rulings. II. We note, initially, that this case raises for the court novel issues of Mine Act interpretation. We therefore recite at the" }, { "docid": "239870", "title": "", "text": "asserting rights conferred by the Mine Act, including, in the Commission’s view, the right to refuse to work in conditions the miner reasonably and in good faith believes to be hazardous. See Miller v. Federal Mine Safety & Health Review Commission, 687 F.2d 194, 195-96 (7th Cir.1982); Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981). After an investigation by the Mine Safety and Health Administration, the Secretary of Labor declined to prosecute and Simpson pursued the claim through private counsel. After a hearing, the ALJ concluded that Simpson had “quit work in good faith because of concerns for his safety,” and that Simpson’s safety concerns were reasonable. Simpson v. Kenta Energy, Inc., 6 FMSHRC 1454, 1460 (1984). The ALJ therefore held that Simpson’s work refusal was protected by the Mine Act. Id. The Commission ordinarily requires those asserting Mine Act protection to communicate their reasons for a work refusal to the operator. Citing Commission precedent, the ALJ observed that this communication requirement is not critical when notice to the operator would be futile. Id. at 1460-61; see Secretary on behalf of Dunmire & Estle v. Northern Coal Co., 4 FMSHRC 126, 133 (1982). Jackson was aware of the hazardous conditions at the Black Joe Mine that prompted Simpson’s work refusal, the AU said, and further notice by Simpson would have been futile as that term is comprehended by the Commission. 6 FMSHRC at 1460-61. The AU next held that Simpson had been constructively discharged for his protected activity, and that this discharge constituted unlawful discrimination under section 105(c)(1). Guided by decisions of this and other circuits under comparable anti-discrimination statutes, the AU reasoned that a constructive discharge under the Mine Act occurs when conditions are so intolerable that a reasonable miner would feel compelled to resign. Even if Jackson and Kenta Energy did not specifically intend that Simpson should quit, the AU stated, they had notice of and were responsible for the deplorable safety conditions at the Black Joe Mine, and those conditions would have led a reasonable miner in Simpson’s position to quit." }, { "docid": "239872", "title": "", "text": "6 FMSHRC at 1460-61. The AU also held that Jackson’s refusal to rehire Simpson constituted a second act of unlawful discrimination. 6 FMSHRC at 1462. Accordingly, the AU awarded Simpson requested relief, including reinstatement, backpay, and attorney’s fees. After an additional hearing, the AU held Jackson personally liable for the award. Simpson v. Kenta Energy Co., 7 FMSHRC 272, 286 (1985). Jackson, but not Kenta Energy, sought review by the Commission, which reversed the AU’s decision and dismissed the complaint. Simpson v. Kenta Energy Inc., 8 FMSHRC 1034 (1986). The Commission agreed that conditions at the Black Joe Mine presented “blatant violations of the Mine Act,” 8 FMSHRC at 1038, but disagreed with the AU regarding the consequences of Simpson’s failure to notify the mine operator when Simpson stopped working. The Commission said it could not “simply presume that [giving notice to the operator] would have been futile.” 8 FMSHRC at 1039. The notice requirement may be excused only in “exceptional circumstances,” the Commission observed; standing alone, “possible operator awareness of a hazardous condition,” the Commission declared, does not suffice to support a finding of futility. 8 FMSHRC at 1039-40. Because Jackson might have responded to Simpson’s concerns had they been communicated, the Commission concluded, Simpson’s work refusal was unprotected by the Mine Act. While acknowledging case law support for the constructive discharge analysis adopted by the AU and endorsed by the Secretary of Labor, the Commission announced a more restrictive standard: it held that retaliatory motive must be shown in order to make out a claim of discriminatory discharge under the Mine Act. To meet this subjective standard, a miner asserting constructive discharge must prove that the operator created intolerable conditions with the specific intention of forcing the miner to quit. Even if Simpson had engaged in protected activity, the Commission said, the requisite demonstration of intent had not been made. 8 FMSHRC at 1040-41. In a footnote, the Commission also reversed the AU’s determination that Kenta Energy and Jackson engaged in a separate act of unlawful discrimination by refusing to rehire Simpson. The Commission said, with no further" }, { "docid": "6062654", "title": "", "text": "have a basis for a reasonable belief that the complained-of conditions are safe, and without addressing the miner’s fears, the exercise of the right to register safety complaints and to refuse work will be chilled. Metric II, 6 FMSHRC at 231. Because Metric’s belief that the work conditions were safe was unreasonable, and Complainants’ belief that the conditions were unsafe was reasonable, the Commission accepted the AU’s conclusion that the discharge of Complainants was discriminatory and a violation of section 105(c)(1) of the Mine Act. We affirm the Commission’s determination that Metric discharged Complainants in violation of section 105(c)(1). The Commission’s findings that Complainants held a good faith belief that their work conditions were hazardous, and that they were discharged as a result of engaging in protected activity is supported by substantial evidence. See section 106(a)-(b) of the Mine Act, 30 U.S.C. § 816(a)-(b) (on judicial review of a Commission order, the findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record as a whole shall be conclusive). Congress enacted the Mine Act out of concern for the health and safety of miners. See 30 U.S.C. § 801; Sewell Coal Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir.1982). The anti-discrimination provision, section 105(c)(1), is to be interpreted expansively to effect this concern. See Donovan ex rel. Anderson v. Stafford Construction Co., 732 F.2d 954, 961 (D.C.Cir.1984); Boich v. FMSHRC, 704 F.2d 275, 283, vacated on other grounds, 719 F.2d 194 (6th Cir.1983). To accept Metric’s position that it satisfied its obligation under section 105(c)(1) by offering Complainants the choice of returning to the hazardous conditions or going home would run counter to the strong remedial purpose of the Mine Act. Metric's argument that it had no alternative work available for Complainants is without merit. We agree with the Commission’s decision that Metric’s conduct constituted a violation of section 105(c)(1). See Boich, 704 F.2d at 280, (quoting Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979)) (an interpretation of the Mine Act by the" }, { "docid": "7582680", "title": "", "text": "admitted that she did not have firsthand knowledge of the Company’s bookkeeping operation, and that she was unsure whether the payroll disarray was attributable to Anderson. After deliberating for approximately one year, the AU issued an opinion in the consolidated cases disposing of the four discriminatory discharge claims. Secretary of Labor ex rel. Smith v. Stafford Construction Co., 3 F.M.S.H.R.C. 2177 (1981). The AU held that the Smith brothers had been discharged in retaliation for their safety complaints, and ordered the Company to pay backpay and penalties. The AU next held that the firing of Donald Hansen had not been illegal; he therefore dismissed the Secretary of Labor’s complaint in that case. Finally, the AU held in the Patricia Anderson case that Anderson’s firing was not in retaliation for protected activity. Accordingly, the complaint in her case was also dismissed. The Secretary of Labor petitioned the FMSHRC for review of the AU’s decision regarding Anderson; the Company cross-petitioned for review of the AU’s holdings that Stephen and Tom Smith had been illegally discharged. The Commission affirmed the AU in all three cases. Secretary of Labor ex rel. Smith v. Stafford Construction Co., 5 F.M.S.H.R.C. 618 (1983). The Secretary of Labor now petitions this court for review of the Commission’s decision in the Anderson case. The Company has not sought further review of the Smith decisions. II. Analysis Our standard for reviewing the Commission’s findings is the same standard that governs FMSHRC review of AU findings of fact: we must uphold the Commission’s findings if they are supported by substantial evidence. See 30 U.S.C. § 816(a)(1) (Supp. Y 1981) (“findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive” in subsequent judicial review proceedings); compare Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 87 (D.C.Cir.1983) (“Unlike the Administrative Procedure Act, ... the Commission’s generic statute limits the agency’s review of an AU’s findings of fact to an inquiry into whether they are supported by substantial evidence.”) (citing 30 U.S.C. § 823(d)(2)(A) (Supp. V" }, { "docid": "239877", "title": "", "text": "Act of 1977 (Leg. Hist.) 623 (1978). Sponsors of the Mine Act reiterated this understanding during debate on the Senate floor; they ranked as “essential,” “the right to refuse work under conditions that a miner believes in good faith to threaten his health and safety.” 123 Cong.Rec. 20043, 95th Cong., 1st Sess. (June 21, 1977) (Sen. Williams), Leg. Hist. at 1089. See generally Miller v. FMSHRC, 687 F.2d 194, 195 (7th Cir.1982) (“so clear a statement in the principal committee report is powerful evidence of legislative purpose”). This evidence warrants our approbation of the work refusal doctrine, even if Congress’ intent is “imperfectly expressed in the statutory language.” Id.; see generally INS v. Cardoza-Fonseca, — U.S. —, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987). Circuits that previously have reached the issue are in accord, e.g., Consolidation Coal Co. v. FMSHRC, 795 F.2d 364 (4th Cir.1986) (listing cases), and further support may be found in this court’s construction of the mine safety law that preceded the Mine Act. See Munsey v. Morton, 507 F.2d 1202 (D.C.Cir.1974); see also Sen. Report at 36, U.S.Code Cong. & Admin.News 1977, 3436, Leg. Hist, at 644 (list of protected rights “intended to be illustrative and not exclusive.”). Simpson’s claim concerns the particulars of the miner’s work refusal right, for the right itself, as we have just developed, is beyond genuine debate. As a corollary to the requirement that miners exercise the right in good faith, based on an objectively reasonable fear of hazard, the Commission has set forth one further requirement: Where reasonably possible, a miner refusing work should ordinarily communicate, or at least attempt to communicate, to some representative of the operator his belief in the safety or health hazard at issue. “Reasonable possibility” may be lacking where, for example, a representative of the operator is not present, or exigent circumstances require swift reaction. We also have used the word “ordinarily” in our formulation to indicate that even where such communication is reasonably possible, unusual circumstances — such as futility — may excuse a failure to communicate. Secretary on behalf of Dunmire &" }, { "docid": "239898", "title": "", "text": "or health violation in a coal or other mine, or because such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential transfer under a standard published pursuant to section 811 of this title or because such miner, representative of miners or applicant for employment has instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded by this chapter. 30 U.S.C. § 815(c)(1). . See Letter to Robert Simpson from Ronald J. Schell, Joint Appendix (J.A.) iv. Complaints of discrimination under the Mine Act initially are investigated by the Secretary of Labor, through the Mine Safety and Health Administration. 30 U.S.C. § 815(c)(2). If the Secretary does not find that a violation of the Mine Act has occurred, the complainant may initiate proceedings before the Commission in his or her own behalf. 30 U.S.C. § 815(c)(3). The complaint may then be heard by an administrative law judge; Commission review of administrative law judge decisions is discretionary. 30 U.S.C. § 823(d). . The Secretary of Labor participated in this case before the Commission, and as an amicus curiae before this court, in support of the constructive discharge standard urged by Simpson and adopted by the AU. The Secretary has taken no position on whether substantial evidence in the record supports the AU’s fact findings, Brief for Amicus Curiae at 7 n. 6, and has declined to address the AU’s treatment of Simpson’s failure expressly to notify his employer of the reasons for his work refusal. Id. at 11 n. 7. . The Commission may review an ALJ’s decision only on one or more of five specified grounds: (I) A finding or conclusion of material fact is not supported by substantial evidence. (II) A necessary legal conclusion is erroneous. (III) The decision is contrary to law or to the duly promulgated rules or decisions" }, { "docid": "6062653", "title": "", "text": "no discharge in fact occurred. Metric submits that essential to a finding of a discharge is the denial to an employee of an opportunity to do available work. Because the employment here was temporary, no alternative work existed; because Complainants were offered what work was available, Complainants cannot be said to have been discharged. Further, Metric states that because section 105(c)(1) does not obligate the operator to correct any alleged safety problems in work conditions, it satisfied its duty under that section by allowing Complainants to continue their employment, which they refused. In affirming the AU’s conclusion that Metric’s termination of Complainants violated section 105(c)(1), the Commission determined that substantial evidence supported the AU’s finding that Metric did not have a reasonable belief that the work conditions were safe when it gave Complainants the option of returning to those conditions or not working at all. The Commission found persuasive Metric’s total failure to investigate the safety complaints. As the Commission stated, If an operator may take action which adversely affects miners when it does not have a basis for a reasonable belief that the complained-of conditions are safe, and without addressing the miner’s fears, the exercise of the right to register safety complaints and to refuse work will be chilled. Metric II, 6 FMSHRC at 231. Because Metric’s belief that the work conditions were safe was unreasonable, and Complainants’ belief that the conditions were unsafe was reasonable, the Commission accepted the AU’s conclusion that the discharge of Complainants was discriminatory and a violation of section 105(c)(1) of the Mine Act. We affirm the Commission’s determination that Metric discharged Complainants in violation of section 105(c)(1). The Commission’s findings that Complainants held a good faith belief that their work conditions were hazardous, and that they were discharged as a result of engaging in protected activity is supported by substantial evidence. See section 106(a)-(b) of the Mine Act, 30 U.S.C. § 816(a)-(b) (on judicial review of a Commission order, the findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record as a whole shall be" }, { "docid": "6062652", "title": "", "text": "then remanded the case to the AU for reconsideration of an issue not relevant to this appeal. On April 24, 1984, the AU issued an order in accordance with the Commission’s decision as to Metric’s liability, the reduction of Brown’s back pay, and the denial of Parker’s back pay. Secretary v. Metric Constructors Inc., 6 FMSHRC 1050 (1984) (Metric III). Because the Commission denied the Secretary’s petition for review of this order of the AU, the AU’s order became a final Commission decision 40 days after its issuance. Both the Secretary, as petitioner, and Metric, as cross-petitioner, appeal to this court from this order of the Commission. I. Metric’s Violation of Section 105(c)(1). Metric does not challenge the Commission’s finding that Complainants engaged in a “protected work refusal.” Instead, Metric argues that the Commission erred in finding that Metric discharged Complainants in violation of section 105(c)(1) of the Mine Act. Because it offered Complainants the opportunity to do what work was available, that is, the jobs to which they were originally assigned, Metric contends that no discharge in fact occurred. Metric submits that essential to a finding of a discharge is the denial to an employee of an opportunity to do available work. Because the employment here was temporary, no alternative work existed; because Complainants were offered what work was available, Complainants cannot be said to have been discharged. Further, Metric states that because section 105(c)(1) does not obligate the operator to correct any alleged safety problems in work conditions, it satisfied its duty under that section by allowing Complainants to continue their employment, which they refused. In affirming the AU’s conclusion that Metric’s termination of Complainants violated section 105(c)(1), the Commission determined that substantial evidence supported the AU’s finding that Metric did not have a reasonable belief that the work conditions were safe when it gave Complainants the option of returning to those conditions or not working at all. The Commission found persuasive Metric’s total failure to investigate the safety complaints. As the Commission stated, If an operator may take action which adversely affects miners when it does not" }, { "docid": "239887", "title": "", "text": "of course, must satisfy the bedrock requirement that it comport with a reasonable construction of the Mine Act. B. Constructive Discharge Simpson next challenges the Commission’s rejection of the AU’s conclusion that Jackson and Kenta Energy constructively discharged him. All parties apparently agree that if the work refusal was protected, a constructive discharge would have amounted to unlawful discrimination within the meaning of section 105(c)(1) of the Mine Act, 30 U.S.C. § 815(c)((l). The dispute is one of proof: what standard must a Mine Act complainant satisfy to prevail on a constructive discharge claim? Constructive discharge doctrines simply extend liability to employers who indirectly effect a discharge that would have been forbidden by statute if done directly. The AU reasoned that a constructive discharge occurs whenever a miner engaged in protected activity can show that an operator created or maintained conditions so intolerable that a reasonable miner would have felt compelled to resign. 6 FMSHRC at 1460-61. This objective standard is the one we employ in cases arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. See Clark v. Marsh, 665 F.2d 1168 (D.C.Cir.1981). The same test also is employed in adjudicating constructive discharge claims under other statutes that protect employees exercising statutory rights from adverse job action. The standard applied by the AU, although in wide use, was rejected by the Commission. The FMSHRC recognized the “blatant violations of the Mine Act” at the Black Joe Mine, 8 FMSHRC at 1038, and assumed for analytical purposes that Simpson’s work refusal had been protected. Id. at 1040. Nevertheless, the Commission overturned the AU’s finding of constructive discharge because “no evidence in this record [showed] that Jackson or Kenta were motivated to create or maintain the conditions” in order to force Simpson to quit. Id. Under the subjective standard announced by the Commission, a miner must prove that an operator imposed intolerable working conditions with the specific intent of retaliating for protected activity. According to the Commission, a constructive discharge claim like Simpson’s must fail absent proof that the operator harbored a retaliatory" }, { "docid": "21549630", "title": "", "text": "bad faith. Bush, 5 F.M.S.H.R.C. at 997. Thus, the principal question here is relatively straightforward: Did Gilbert reasonably and in good faith believe that he would be required to work in hazardous mine conditions? In reviewing a Commission judgment on this issue, the Mine Act instructs that a reviewing court must up hold Commission findings “if supported by substantial evidence on the record considered as a whole.” 30 U.S.C. § 816(a)(1) (1982); see also Donovan ex rel. Anderson v. Stafford Constr. Co., 732 F.2d 954, 958 (D.C.Cir.1984). The Commission has employed two evidentiary guidelines to facilitate the assessment of a miner’s “good faith.” First, “[w]hen reasonably possible, a miner refusing work should ordinarily communicate, or at least attempt to communicate, to some representative of the operator, his belief in the safety or health hazard at issue.” Secretary ex rel. Dunmire & Estle v. Northern Coal Co., 4 F.M.S.H.R.C. 126, 133 (1982). This requirement serves an “evidentiary function” in “ ‘weeding out work refusals infected by bad faith.’ ” Simpson, 842 F.2d at 459 (quoting Dunmire, 4 F.M.S.H.R.C. at 134). Second, when a miner expresses a reasonable, good faith fear in a hazard, the operator has a corresponding obligation to address the perceived danger. Bush, 5 F.M.S.H.R.C. at 997-98; Pratt, 5 F.M.S.H.R.C. at 1534; Secretary v. Metric Constructors, Inc., 6 F.M.S.H.R.C. 226 (1984), aff'd sub nom. Brock ex rel. Parker v. Metric Constructors, Inc., 766 F.2d 469 (11th Cir.1985); Hogan & Ventura, 8 F.M.S.H.R.C. at 1074. In other words, if a miner refuses to work only after an operator has failed or refused to respond to a reasonable complaint regarding an unsafe work condition, it is not likely that the miner has acted in bad faith. In the instant case, even accepting the facts exactly as FMSHRC found them, we can find no basis in the record to support the determination that Gilbert could not have entertained a reasonable, good faith belief that he would be required to work in a hazardous area. The undisputed evidence reveals that Gilbert was working in an area in the mine in which it appeared" }, { "docid": "239878", "title": "", "text": "(D.C.Cir.1974); see also Sen. Report at 36, U.S.Code Cong. & Admin.News 1977, 3436, Leg. Hist, at 644 (list of protected rights “intended to be illustrative and not exclusive.”). Simpson’s claim concerns the particulars of the miner’s work refusal right, for the right itself, as we have just developed, is beyond genuine debate. As a corollary to the requirement that miners exercise the right in good faith, based on an objectively reasonable fear of hazard, the Commission has set forth one further requirement: Where reasonably possible, a miner refusing work should ordinarily communicate, or at least attempt to communicate, to some representative of the operator his belief in the safety or health hazard at issue. “Reasonable possibility” may be lacking where, for example, a representative of the operator is not present, or exigent circumstances require swift reaction. We also have used the word “ordinarily” in our formulation to indicate that even where such communication is reasonably possible, unusual circumstances — such as futility — may excuse a failure to communicate. Secretary on behalf of Dunmire & Estle v. Northern Coal Co., 4 FMSHRC 126, 133 (1982). While this requirement is not planted in the language or history of the Mine Act, it is certainly “rational and consistent with the statute,” United Food & Commercial Workers, 108 S.Ct. at 421, and we therefore accept this qualified communication requirement as part of a reasonable interpretation of the Mine Act by the Commission. The communication requirement serves the Mine Act in three critical ways. The requirement promotes safety, as the Commission has said, because prompt notice of a hazard “may permit the opérator to correct the condition in a timely fashion and may protect others in the mine from harm.” Northern Coal, 4 FMSHRC at 133. Furthermore, a reasonably perceived danger may, in time or upon investigation, prove nonexistent, in which case communication affords the operator a chance to allay worker fears and thus prevent an interruption in mine production. The requirement also serves an evidentiary function: the Commission believes that “the practical effect of this rule will be to assist in weeding out" }, { "docid": "239896", "title": "", "text": "Energy, even though Kenta Energy had not sought review of the ALJ’s decision. 8 FMSHRC at 1041. The Commission’s return to the merits of Simpson’s case obviously may compel a return to this last holding, so we note at this point only the questionable consistency of the Commission’s action vacating the judgment against Kenta Energy with its review authority. See supra note 5; 30 U.S.C. § 823(d) (limiting the grounds for discretionary review by the Commission, and denying authority to “raise or consider additional issues” not presented by the petition for review). Conclusion For the reasons stated, we grant Simpson’s petition for review, reverse the Commission’s decision, and remand the case to the Commission with an instruction to reconsider whether Simpson’s work refusal was protected, and if it was, for analysis of Simpson’s constructive discharge and refusal to rehire claims in a manner consistent with this opinion. The Commission should also revisit its decision vacating, on its own motion, the judgment against Kenta Energy. It is so ordered. . The AU's fact findings, when supported by substantial evidence, are conclusive under the Mine Act. See 30 U.S.C. § 815(a)(1). In the background section that follows, we rely dominantly on the AU’s recitation of facts, as reported in Simpson v. Kenta Energy, Inc., 6 FMSHRC 1454, 1455-59 (1982). Except as specifically noted, neither the Commission nor the mine operator now challenges the AU's fact determinations. . Section 105(c)(1) provides, in pertinent part: (c) Discrimination or interference prohibited: complaint; investigation; determination; hearing (1) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal or other mine subject to this chapter because such miner, representative of miners or applicant for employment has filed or made a complaint under or related to this chapter, including a complaint notifying the operator or the operator’s agent, or the representative of the miners at the coal or other mine of an alleged danger or safety" }, { "docid": "21549629", "title": "", "text": "this right explicitly, this court has recently noted that “the legislative history of the statute unequivocally supports the Commission’s view.” Simpson v. FMSHRC, 842 F.2d 453, 458 (D.C.Cir.1988). In analyzing whether a miner's fear is reasonable, the Commission consistently has held that the perception of a hazard must be viewed from the miner’s perspective at the time of the work refusal. Secretary ex rel. Pratt v. River Hurricane Coal Co., 5 F.M.S.H.R.C. 1529, 1533-34 (1983); Haro v. Magma Copper Co., 4 F.M.S.H.R.C. 1935, 1944 (1982). To be accorded the protection of the Act, the miner need not objectively prove that an actual hazard existed. Secretary ex rel. Hogan & Ventura v. Emerald Mines Corp., 8 F.M.S.H.R.C. 1066, 1072-73 (1986); Pratt, 5 F.M.S.H.R.C. at 1533-34; Haro, 4 F.M.S.H.R.C. at 1943-44; Robinette, 3 F.M.S.H.R.C. at 810. The Commission has explained that “[gjood faith belief simply means honest belief that a hazard exists.” Robinette, 3 F.M.S.H.R.C. at 810. The burden of proving good faith rests with the complaining miner, but the miner need not demonstrate an absence of bad faith. Bush, 5 F.M.S.H.R.C. at 997. Thus, the principal question here is relatively straightforward: Did Gilbert reasonably and in good faith believe that he would be required to work in hazardous mine conditions? In reviewing a Commission judgment on this issue, the Mine Act instructs that a reviewing court must up hold Commission findings “if supported by substantial evidence on the record considered as a whole.” 30 U.S.C. § 816(a)(1) (1982); see also Donovan ex rel. Anderson v. Stafford Constr. Co., 732 F.2d 954, 958 (D.C.Cir.1984). The Commission has employed two evidentiary guidelines to facilitate the assessment of a miner’s “good faith.” First, “[w]hen reasonably possible, a miner refusing work should ordinarily communicate, or at least attempt to communicate, to some representative of the operator, his belief in the safety or health hazard at issue.” Secretary ex rel. Dunmire & Estle v. Northern Coal Co., 4 F.M.S.H.R.C. 126, 133 (1982). This requirement serves an “evidentiary function” in “ ‘weeding out work refusals infected by bad faith.’ ” Simpson, 842 F.2d at 459 (quoting Dunmire," } ]

[ { "docid": "6868407", "title": "", "text": "TRIEBER, District Judge. The plaintiff in error, hereafter referred to as the defendant, seeks by this writ of error to reverse a judgment of conviction on an indictment charging him in two counts with the crime of perjury. Although found guilty on both counts and sentenced to imprisonment on each, the confinement is concurrent. Without setting out all the formal allegations in the indictment, the sufficiency of which is not questioned, it charges the defendant, in the first count, with having sworn falsely while a witness in his own behalf in a cause pending in the District Court of the United States for the. District of North Dakota, in which he and another defendant were charged with the crime of larceny from an interstate railroad car. The second count charges him with having sworn falsely, while testifying in the same case, in which he was charged in the second count of the indictment, with having in his possession certain articles which had been stolen from a railroad car in process of transportation in interstate commerce, knowing that they had been feloniously stolen from such a car. Although it is alleged in the assignment of errors that the court erred in denying defendant’s motion to direct a verdict of acquittal at the close of the government’s evidence, and again at the close of all the testimony in the case, the record fails to show that such motions were made at any time in behalf of the defendant; but, as the defendant’s personal liberty is involved, we have considered the assignment that the court erred in refusing to direct a verdict of acquittal at the close of all the testimony. As to the denial of the motion for a directed verdict at the close of the' government’s testimony, even if it had been made, it could not be considered by this court, as it was waived when the defendant introduced testimony in his defense. A careful reading of the testimony satisfies beyond question that, unless the court erred as a matter of law in submitting the cause to the jury, it committed" } ]

[ { "docid": "1919034", "title": "", "text": "demurrer was based on lack of evidence to prove that defendants were residents of their respective townships on the dates charged in the information; in other words, that the evidence was not sufficient to sustain the charge. If assignment of error No. 8 was specific enough to cover this question, nevertheless it is the well-established rule that a motion to direct a verdict on the ground of lack of evidence at the close of the government’s, or plaintiff’s, ease (and that is what this demurrer amounted to) is waived by defendants proceeding to introduce evidence. Collins v. United States, 219 F. 670, 135 C. C. A. 342; Short v. United States, 221 F. 248, 137 C. C. A. 104; Steffen v. United States (C. C. A.) 293 F. 30; McCabe & Steen Construction Co. v. Wilson, 209 U. S. 275, 28 S. Ct. 558, 52 L. Ed. 788; Accident Ins. Co. v. Crandal, 120 U. S. 527, 7 S. Ct. 685, 30 L. Ed. 740. Counsel also seek in the same assignment of error to present alleged erroneous instructions. There are some portions of the instructions not entirely clear, and, had the court’s attention been called thereto, could have been easily clarified. At the close of the instructions the court asked if there were any exceptions, to which counsel for defendants replied, “No, sir.”- It is evident that, having made no objections to the instructions of the court or excepted to any part thereof, defendants are not in position here to urge alleged errors therein. Savage v. United States, 213 F. 31, 130 C. C. A. 1; Hickory v. United States, 151 U. S. 303, 14 S. Ct. 334, 38 L. Ed. 170; Stewart v. Wyoming Ranche Co., 128 U. S. 383, 9 S. Ct. 101, 32 L. Ed. 439. Assignment of error No. 5 is that the verdict of the jury, upon whieh the judgment of the eourt was based, was contrary to the evidence. As to this wo And the record in substantially the same condition as to the instructions. The question of sufficiency of the evidence was" }, { "docid": "6908899", "title": "", "text": "to entertain a motion to quash, it is regarded discretionary, and the ruling presents no question for review. Livezey v. United States (C. C. A.) 279 F. 496. The record here discloses no abuse of discretion. Assignment 4 is to the refusal to order the taking of depositions of defendant’s witnesses residing out of the state. It is urged that the West Virginia statute in regard to taking depositions controls. We cannot accept this view. Congress has made provision for service and attendance of witnesses in criminal eases. It was early determined that no power existed in the federal courts to order the taking of depositions in criminal eases. United States v. Thomas, Fed. Cas. No. 16,476. They were unknown and unauthorized at common'law. 8 R. C. L. pp. 86 and 1134. Assignments 5, 6, and 8 are to the refusal to direct a verdict of not guilty at the close of the evidence for the United States, and at the close of all the evidence, and to set .aside the verdict. We have carefully examined the evidence and find no error. The evidence, if believed, was fully sufficient to support the verdict. At the close of the evidence for the United States, defendant moved to strike out overt acts 1, 2, 3, 5, 8, and 9 from the indictment. No reason was assigned at the trial why they should be stricken. It is now urged that they are indefinite and insufficient to constitute overt acts of the conspiracy charged. The indictment, containing but one count, charged a general conspiracy in anticipation of bankruptcy to conceal from the trustee in bankruptcy $5,000 in money and goods, wares, merchandise, and other property, the total value and more definite description of which 'were to the jurors unknown. ' It set forth thirteen overt acts alleged to be committed in furtherance of, pursuant to, and 'to effect the object of the conspiracy. The averments of the conspiracy cannot be aided b^ the allegations respecting the overt acts. United States v. Britton, 108 U. S. 199, 205, 2 S. Ct. 531, 27 L. Ed." }, { "docid": "7829439", "title": "", "text": "Request No. 1 was given substantially, except the part which asked that the jury be instructed that the evidence as to count 4 was entirely circumstantial. That part was properly refused. Request No. 5 was upon the defense of entrapment. The court in its charge correctly stated the law governing that defense. 10. From the amended assignment of errors filed it appears that the alleged incompetent testimony admitted was that disposed of under specifications 5 and 7, supra. No other testimony has been brought to our attention as required by rule 11 of this court. 11. Error cannot be assigned to the overruling of a motion for new trial. In so far as the motion in arrest preserved the challenge to the sufficiency of the indictment, the point has been ruled under specifications 1 and 2, supra. 8 and 12. We come, finally, to the question of whether the evidence was sufficient to sustain the judgment, and whether the court erred in refusing to direct a verdict of acquittal. With respect to counts 3 and 4 we think the court erred. It was an essential element of the offense in both counts that defendants were dealers in morphine, and required to register and pay the special tax as such under the provisions of the first penal provision of section 1 of the act (26 TJSCA § 211, 691, et seq.; Comp. St. § 6287g). It is true that count 3 is for conspiracy, but the conspiracy charged was to violate this first penal provision of said section 1. There being no evidence that defendants were dealers within the restrictive definition of such contained in the act itself, we are constrained to hold that in counts 3 and 4 the government failed to establish a material element of the offense charged. For the reasoning in support of this conclusion see O’Neill v. United States (C. C. A. 8) 19 F.(2d) 322, and Maupin et al. v. United States (C. C. A.) 23 F. 470, decided this day. Respecting the first count we have reached a different conclusion. This count is for" }, { "docid": "10900631", "title": "", "text": "to have been sold are not named”; and on the ground that the “charges in the several counts in the indictment being indefinite, uncertain,, and so general in nature that they do not apprise the defendant of the nature of the accusation made against him, which is in violation of constitutional guaranties.” At the time this motion was made the evidence disr closed the name of the purchaser and all the details of the offense. The. only assignment of error on this subject is “Assignment of error No. Ill, in not directing a verdict of not guilty in favor of defendant.” The appellant was not entitled to an acquittal. Neither, the motion nor the assignment segregate the counts alleging sale, and the motion was for a directed verdict on all counts. This was a permissible form of indictment according to 41 Stat. 317, § 32, 27 USCA § 49; Haussener v. U. S. (C. C. A.) 4 F.(2d) 884; Myers v. U. S. (C. C. A.) 15 F.(2d) 977. The error assigned is not well taken. The indictment is sufficient to sustain the judgment. At the close of the evidence counsel moved the court to instruct the jury to disregard the evidence of the prior conviction, for the reason that the conviction did not precede the alleged offense. The evidence had been received without objection. The court denied the motion on the ground that the conviction occurred prior to the indictment in this case. Inasmuch as the only function of a prior conviction is to augment the penalty for the later offenses, and the province of the jury only to determine whether the defendant was so convicted, so that the court can be guided thereby in fixing the sentence for the iater offense, no prejudice resulted from the ruling. In order that a conviction shall affect the penalty for subsequent offenses, it must be prior to the commission of the offense. Singer v. U. S. (C. C. A.) 278 F. 415; Massey v. U. S. (C. C. A.) 281 F. 293; Biddle v. Thiele (C. C. A.) 11 F.(2d) 235;" }, { "docid": "10900630", "title": "", "text": "defense against those who attempted to interfere with his business. It is argued on appeal that this evidence tended to prove offenses other than those charged in the indictment, and that therefore their admission was-erroneous and prejudicial. These statements were admissible as a part of the res gesta, and could not he excluded merely because-they tended to prove other offenses. Flood v. United States (C. C. A.) 36 F.(2d) 444. Moreover, there is no assignment of error predicated upon the admission of 'such testimony. The appellant calls our attention to the fact that counts 2 and 4 of the indictment charging sales do not allege the name of the-person to whom the sales were made. No demurrer was.interposed to the indictment and no bill of particulars demanded, and the question was not raised in the trial court until after all the evidence was in, whereupon the appellant moved for a directed verdict on the ground that the indictment “fails to state a crime, in that the names of the persons to-whom intoxicating liquors. were alleged to have been sold are not named”; and on the ground that the “charges in the several counts in the indictment being indefinite, uncertain,, and so general in nature that they do not apprise the defendant of the nature of the accusation made against him, which is in violation of constitutional guaranties.” At the time this motion was made the evidence disr closed the name of the purchaser and all the details of the offense. The. only assignment of error on this subject is “Assignment of error No. Ill, in not directing a verdict of not guilty in favor of defendant.” The appellant was not entitled to an acquittal. Neither, the motion nor the assignment segregate the counts alleging sale, and the motion was for a directed verdict on all counts. This was a permissible form of indictment according to 41 Stat. 317, § 32, 27 USCA § 49; Haussener v. U. S. (C. C. A.) 4 F.(2d) 884; Myers v. U. S. (C. C. A.) 15 F.(2d) 977. The error assigned is not well" }, { "docid": "11846947", "title": "", "text": "An alleged error of the trial court in denying a motion for a directed verdict at the close of the government’s ease; (2) the constitutionality of the Act of Congress of June 30,1919 (41 Stat. 4). As to the first, it is sufficient to say that testimony was introduced by the defendant after the denial of the motion for a directed verdict at the close of the government’s case. The alleged error was thereby waived. Youngblood v. United States, 266 F. 795 (C. C. A. 8); Marron v. United States (C. C. A.) 8 F.(2d) 251, 258. The motion was not renewed at the close of all the evidence, and the facts and circumstances of the case are not of such character as to impel us to review the evidence in the absence of a proper assignment of error. Turning to the second matter; the Act of June 30,1919, under which the indictment was drawn, reads as follows: “For the suppression of the traffic in intoxicating liquors among Indians, $100,000: [Provided, that on and after July 1, 1919, possession by a person of intoxicating liquors in the Indian country or where the introduction is or was prohibited by treaty or federal statute shall be an offense and punished in accordance with the provisions of the Acts of July 23, 1892 (Twenty-Seventh Statutes at Large, page 260), and January 30, 1897 (Twenty-Ninth Statutes at Large, page 506):] Provided further, that the provisions of article IX of the agreement with the Nez Perce Indians of Idaho, dated May 1, 1893, and ratified and confirmed by the Act of Congress approved- August 15, 1894 (Twenty-Eighth Statutes at Large, pages 286-330), prohibiting the sale of intoxicating liquors to those Indians or its introduction upon their lands, are hereby extended for the period of ten years.” The statute prohibits possession of intoxicating liquor in two classes of places: (1) Indian country; (2) places where the introduction of such Jiquor was or is prohibited by treaty or federal statute. It is not claimed by the government that the place of possession in the instant case (Okfuskee" }, { "docid": "21516419", "title": "", "text": "and to effectuate the scheme they mailed and caused to be maile.d certain letter's addressed to named persons, setting forth in alluring terms the value of the investment and the probabilities of dividends. Rasmussen was convicted under counts 4, 7, and 8, and Thayer was convicted under count 4. They sued out writs and filed separate assignments of error and briefs. Defendants urge that the court erred in denying their motion for a 'directed verdict upon the ground that the evidence was insufficient to sustain conviction. But as the bill ofv exceptions signed by the judge fails to show affirmatively or by inference that it contains all the testimony produced upon the trial, the question whether there was any substantial evidence to warrant a conviction is not before us for review. Oregon American Lumber Co. v. Simpson, 8 F. (2d) 946 (decided November 16, 1925). Obviously, the appellate court cannot say that the presumption in favor of the verdict has been overcome in that there is lack of evidence, unless all the testimony that was produced before the lower court is brought up for review. Meyer v. Everett Pulp & Paper Co., 193 F. 857, 113 C. C. A. 643; Goldfarb v. Keener (C. C. A.) 263 F. 357; Buessel v. United States, 258 F. 811, 170 C. C. A. 105; Taylor Craig Corporation v. Hage, 69 F. 581, 16 C. C. A. 339; Greenspaln v. United States (C. C. A.) 298 F. 736. We therefore pass to assignments founded upon the rulings admitting or excluding evidence. Defendants complain because the court permitted a government witness, Fisher, to testify to transactions with defendants relating to certain oil leases in Kentucky. Fisher said he had advanced various sums of money for the acquisition of interests in certain leases; that he dealt with Thayer, who told him lie had a telegram concerning the property from Rasmussen and Bigelow, who were then in Kentucky; that he was to have an individual interest in one of the leases referred to in the indictment. On cross-examination witness said that some time afterwards he sold the" }, { "docid": "23067125", "title": "", "text": "the verdict of the jury and the judgment of the court are contrary to the law. “3. The verdict of the jury and the judgment of the court are contrary to both the law and the evidence. “4. That the evidence introduced in the cause did not justify a submission to the jury a question of fact on the third count of the indictment. “5. That the evidence in the cause was not sufficient upon which to base a conviction of this defendant on the third count of the indictment. “6. That the judgment of the court sentencing this defendant to serve six months in jail is excessive “7. That the court erred in permitting S. M. Gurley, J. W. Ledbetter and W. F. Willis, over the objection of the defendant, to testify to finding whisky and beer on the night of June 27, 1931, as evidence against this defendant.” The errors specified in the brief of the appellant are identical with those stated in the first five assignments. The government contends that, since there was no sufficient motion for a directed verdict, and since the assignment of errors and specification of errors are insufficient and do not comply with the rules of this court, we are precluded from considering the question of the sufficiency of the evidence to justify the verdict. That the specifications of error and the first five assignments of error — with which we are only concerned, the other two assignments having been abandoned [Allen v. Hudson (C. C. A.) 35 F.(2d) 330] — are insufficient is obvious. Referring to such assignments, Judge Gilbert, of the Ninth Circuit, in the ease of Hecht v. Alfaro (C. C. A.) 10 F.(2d) 464, 466, said: “They bring up for review no ruling of the trial court. They do not show that at any point in the proceedings the court below committed error. Upon no question thus presented does it appear that the trial court was requested to make a ruling or give an instruction to the jury. This court has no authority to retry an action at law" }, { "docid": "4277348", "title": "", "text": "(leased to another) had been made without a search warrant. The court’s refusal is assigned as error. The question might he pertinent and certainly would require consideration were it not that Chepo disclaimed any interest in the downstairs premises searched and any interest in or knowledge of the goods there seized. His room upstairs was not searched and in it nothing was seized. By that disclaimer he himself showed that no constitutional right of his had been invaded and, therefore, that he is not in a position to attack the search and seizure. Rouda v. United States (C. C. A.) 10 F.(2d) 916; Rosenberg v. United States (C. C. A.) 15 F.(2d) 179; Armstrong v. United States (C. C. A.) 16 F. (2d) 62; Id., 273 U. S. 766, 47 S. Ct, 571, 71 L. Ed. 881; Coon v. United States (C. C. A.) 36 F.(2d) 164, 165. At the trial Chepo was confronted by seven counts of the indictment charging crimes briefly stated as follows: (1) Operating a still without registering the same; (2) carrying on the business of a distiller with intent to defraud the United States of the tax; (3) without giving bond; (4) in a building not authorized by law; (5) without displaying a sign bearing the words “Registered Distillery”; and, Anally, (6) unlawfully manufacturing and (7) unlawfully possessing intoxicating liquor of a prohibited alcoholic content. At the close of the trial Chepo moved not for a directed verdict but that all seven counts he “dismissed.” Regarding this motion as mistakenly named and construing 'it as a motion for a directed verdict, refusal of which, on exceptions, is assigned as error, it will he enough to say that, even if the court were wrong in refusing to direct a verdict of acquittal on the first, second, third and fourth counts for want of evidence, that will not help the appellant because there was enough evidence of the operation of the distillery without a displayed sign under the fifth count and ample evidence of manufacture and possession of liquor under the sixth and seventh counts to submit" }, { "docid": "2590250", "title": "", "text": "WILBUR, Circuit Judge. The defendants and appellants were charged with having mailed or caused to be delivered by mail certain letters and circulars set forth in counts one to ten, inclusive, of the indictment to execute or attempt to execute a scheme and artifice devised by them for obtaining money and property by means of false and fraudulent pretenses, representations, and promises in the promotion and sale of stock in Nathaniel Baldwin, Incorporated, in violation of section 215 of the Federal Penal Code (18 USCA § 338), and in count 11 of the indictment with having conspired to so use the mails in violation of section 37 of the Federal Penal Code (18 USCA § 88). The trial court directed a verdict in favor of the defendant Fred R. Woolley. The remaining sixteen defendants were convicted and all appeal. As to the defendant-appellant Charles ,H. Barnett, who died since his appeal was perfected, the criminal action has abated. The appeal as to him is therefore dismissed. Rossi v. United States (C. C. A.) 21 F. (2d) 747. There were ten briefs submitted on behalf of the various appellants and many alleged errors are argued in the briefs which were not assigned as error. This court has repeatedly held that errors argued in the briefs but not assigned as error will not be considered. Holsman v. U. S. (C. C. A. 9), 248 F. 193, 198; Wight v. Washoe County Bank (C. C. A.) 251 F. 819; Pattis v. U. S. (C. C. A.) 17 F.(2d) 562. Assignments of errors Nos. 1, 2, 6, and 8 deal with the trial court’s denial of the respective appellants’ motions for directed verdicts. Assignment No. 6 alleges as error the statement of the trial judge, made in the presence of the jury at the time these motions were interposed, to the effect that\" the evidence introduced by the government was sufficient to sustain a conviction in the event the jury should convict the defendants. It will be noted that this was the very question the trial judge was called upon to determine in ruling" }, { "docid": "23645460", "title": "", "text": "trial of the ease lasted more than six weeks. The record is voluminous, consisting of 2,500 printed pages. The assignments of error on behalf of defendant Sunderland are 357 in number; those on behalf of the other plaintiffs in error are to a considerable extent, but not wholly, covered by those in behalf of Sunderland. To discuss them all would be impractical and would serve no useful purpose. They may be grouped roughly as follows : Those challenging the rulings as to the sufficiency and validity of the indictment. Those relating to the conduct of the trial and the character of the proceedings during the same. Those relating to questions of evidence. Those relating to the charge to the jury. Duplicity. The first attack made on the indictment is that each of the counts is duplicitous. The attack was not made in the eonrt below in tbe classic ways: by motion to quash or by demurrer; but instead, by motion to exclude any evidence, motion to require the government to elect at tbe close of tbe evidence, motion for a directed verdict, and motion in arrest of judgment. Tbe first method of attack is not recognized in the federal courts, at least in this circuit. Morris v. United States (C. C. A.) 161 F. 672, 678; McSpadden v. United States (C. C. A.) 224 F. 935; McKnight v. United States (C. C. A.) 252 F. 687; Boone v. United States (C. C. A.) 257 F. 963. And the last method of attack is equally unavailable. Connors v. United States, 158 U. S. 408, 411, 15 S. Ct. 951, 39 L. Ed. 1033; Morgan v. United States (C. C. A.) 148 F. 189; Lemon v. United States (C. C. A.) 164 F. 953, 958; Chew v. United States (C. C. A.) 9 F.(2d) 348, 353. Assuming, but mtbout deciding, that the other methods were sufficient to raise the question of duplicity, yet we think the charge cannot be sustained. Duplicity is the joining in one count of two or more distinct offenses. In the case at. .bar the contention of plaintiffs" }, { "docid": "21617436", "title": "", "text": "being forced to search the record to determine what the issue is. Crape Creek Coal Co. v. Farmers’ Loan & T. Co. (C. C. A.) 63 F. 891; Piper v. Cashell (C. C. A.) 122 F. 614; Deering Harvester Co. v. Kelly (C. C. A.) 103 F. 261; Haldane v. United States (C. C. A.) 69 F. 819; Northwestern S. B. & Mfg. Co. v. Great Lakes E. Works (C. C. A.) 181 F. 38; Bandy v. United States (C. C. A.) 245 F. 98; Federal Surety Co. v. Standard Oil Co. (C. C. A.) 32 F.(2d) 119; Lahman v. Burnes Nat. Bank (C. C. A.) 20 F.(2d) 897; Robinette v. Sidener (C. C. A.) 33 F.(2d) 37. These rules must be observed, and, as was said by this court as early as Haldane v. United States (C. C. A.) 69 F. 819, 821: “We have invariably held that we would not consider alleged errors in the admission and exclusion of evidence unless the testimony that is claimed to have been erroneously admitted or excluded is set out substantially in the assignment of errors and in the brief, as required by rules 11 and 24 of this court.” We must therefore decline to pass upon these alleged errors in the admissibility of evidence. [3-5] By assignment No. 12, defendant challenges the ruling of the court in denying its motion for a directed verdict made at the close of all the testimony. This requires a consideration of the evidence for the purpose of determining whether or not there is substantial evidence sustaining the verdict. It is challenged in two particulars: (1) That it fails to show that the vapors and gases arising from the sulphuric acid gases in the vats were poisonous; and (2) that it fails to show that the tuberculosis from which plaintiff was confessedly suffering was caused thereby. The plaintiff having alleged in his petition that the vapors and gases arising from these vats were poisonous, it is the claim of the defendant that this presented a scientific chemical question which could be answered only by those qualified" }, { "docid": "23067126", "title": "", "text": "was no sufficient motion for a directed verdict, and since the assignment of errors and specification of errors are insufficient and do not comply with the rules of this court, we are precluded from considering the question of the sufficiency of the evidence to justify the verdict. That the specifications of error and the first five assignments of error — with which we are only concerned, the other two assignments having been abandoned [Allen v. Hudson (C. C. A.) 35 F.(2d) 330] — are insufficient is obvious. Referring to such assignments, Judge Gilbert, of the Ninth Circuit, in the ease of Hecht v. Alfaro (C. C. A.) 10 F.(2d) 464, 466, said: “They bring up for review no ruling of the trial court. They do not show that at any point in the proceedings the court below committed error. Upon no question thus presented does it appear that the trial court was requested to make a ruling or give an instruction to the jury. This court has no authority to retry an action at law and render such judgment as we may think should have been rendered. We can review only rulings made by the trial court on questions brought to its attention and passed upon by it. Oregon R. & Nav, Co. v. Dumas, 181 F. 781, 104 C. C. A. 641; Bort v. E. H. McCutchen & Co., 187 P. 798, 109 C. C. A. 558; United States v. National City Bank (C. C. A.) 281 F. 754. These considerations are sufficient to dispose of the case upon the writ of error from this court.” See, also, Southern Surety Co. v. Lee County Bank, Title & Trust Co. (C. C. A. 8) 36 F.(2d) 220; Flanagan v. Benson (C. C. A. 8) 37 P.(2d) 69; Allen v. Hudson, supra; Stewart v. United States (C. C. A. 9) 12 F.(2d) 524. Even if the denial of the appellant’s motion in the court below for a directed verdict had been assigned and specified as error, it would not have entitled him to a review of the question of the sufficiency" }, { "docid": "2590251", "title": "", "text": "(2d) 747. There were ten briefs submitted on behalf of the various appellants and many alleged errors are argued in the briefs which were not assigned as error. This court has repeatedly held that errors argued in the briefs but not assigned as error will not be considered. Holsman v. U. S. (C. C. A. 9), 248 F. 193, 198; Wight v. Washoe County Bank (C. C. A.) 251 F. 819; Pattis v. U. S. (C. C. A.) 17 F.(2d) 562. Assignments of errors Nos. 1, 2, 6, and 8 deal with the trial court’s denial of the respective appellants’ motions for directed verdicts. Assignment No. 6 alleges as error the statement of the trial judge, made in the presence of the jury at the time these motions were interposed, to the effect that\" the evidence introduced by the government was sufficient to sustain a conviction in the event the jury should convict the defendants. It will be noted that this was the very question the trial judge was called upon to determine in ruling upon the motions and there was no error in so stating his conclusions. This is particularly true in view of the fact that the trial judge in a federal court has the right to comment upon and to state his opinion as to the evidence being careful to advise the jury that his opinion as to the evidence is not binding on them but that they are the sole and exclusive judges of the facts. Chetkovich v. U. S. (C. C. A.) 53 F.(2,d) 26. Moreover, no objections were made and no exceptions were taken to the remarks of the trial court at the time and, consequently, error cannot be predicated thereon. Assignment No. 1 is based upon the alleged error that the trial court denied the motion of appellants for directed verdicts interposed at the close of the government’s ease. Appellants, having thereafter introduced evidence in their behalf, have waived their objection and cannot urge the matter on appeal. Deupree v. U. S. (C. C. A. 9) 2 F.(2d) 44; Edwards v. U. S." }, { "docid": "3205488", "title": "", "text": "WILBUR, Circuit Judge. The information under which appellant was convicted charges that appellant “did knowingly, wilfully and unlawfully solicit from one Charles F. Dycer, the sum of one thousand dollars ($1,000.00) for personal emolument, in consideration of the promise of use of influence of said Harrison A. Love in behalf of the said Charles F. Dycer in obtaining an appointive office under the Government of the United States, to-wit: Chief Inspector of Aeronautics of the Department of Commerce of the United States.” 18 US CA § 150. The appellant assigns twenty-three errors. His brief reduces these to six specifications of error. All assignments of error not covered by the specifications of error in the brief and not argued are waived. Allen v. Hudson (C. C. A.) 35 F.(2d) 330; McCarthy v. Ruddock (C. C. A.) 43 F.(2d) 976; Nash v. Rehmann Bros. (C. C. A.) 53 F.(2d) 624; Wynne v. Fries (C. C. A.) 50 F.(2d) 761; Schevenell v. Blackwood (C. C. A.) 35 F.(2d) 421; Maryland Casualty Co. v. Jones, 279 U. S. 796, 49 S. Ct. 484, 73 L. Ed. 960; Id. (C. C. A. 9) 35 F.(2d) 791. We will, therefore confine our attention to the six specifications of error set forth in appellant’s brief and argued. The first, third, fourth, and fifth all relate to the sufficiency of the evidence to support the verdict; and really constitute but a single specification of error which will not be considered because the question was not raised in the trial court. As said by this court, speaking through Judge Gilbert, in the case of Clements v. United States, 297 F. 206, 207: “The ruling of the trial court on a motion for a new trial is not subject to review in an appellate court, and, as there was no motion for a directed verdict in behalf of the plaintiffs in error, we are not authorized to enter into a discussion of the sufficiency of the evidence to sustain the verdict of the jury.” And see United States v. Rice (C. C. A. 9) 47 F.(2d) 749, 750; Caldwell v." }, { "docid": "11846946", "title": "", "text": "BOOTH, Circuit Judge; By an indictment returned in the Northern district of Oklahoma, plaintiff in error and M. M. Wells were charged with having unlawfully in their possession intoxicating liquor, to wit, whisky, “in an Indian country, to wit, Okfuskee county, state of Oklahoma, where the said liquor was had, possessed, and kept by the said defendants, having been within the limits of the Indian Territory, and a part thereof prior to the admission of the state of Oklahoma into the Union as one of the United States of America, and being then and there a place where the introduction of spirituous and intoxicating liquor is and was prohibited by the federal statutes, and which said possession of said liquor was contrary to the form of the statute in such ease made and provided, and against the peace and dignity of the United States of America.” Wells pleaded guilty. Lucas was tried and found guilty. He sued out'this writ of error. The assignments of error bring to the attention of the court two matters: (1) An alleged error of the trial court in denying a motion for a directed verdict at the close of the government’s ease; (2) the constitutionality of the Act of Congress of June 30,1919 (41 Stat. 4). As to the first, it is sufficient to say that testimony was introduced by the defendant after the denial of the motion for a directed verdict at the close of the government’s case. The alleged error was thereby waived. Youngblood v. United States, 266 F. 795 (C. C. A. 8); Marron v. United States (C. C. A.) 8 F.(2d) 251, 258. The motion was not renewed at the close of all the evidence, and the facts and circumstances of the case are not of such character as to impel us to review the evidence in the absence of a proper assignment of error. Turning to the second matter; the Act of June 30,1919, under which the indictment was drawn, reads as follows: “For the suppression of the traffic in intoxicating liquors among Indians, $100,000: [Provided, that on and after" }, { "docid": "23067127", "title": "", "text": "and render such judgment as we may think should have been rendered. We can review only rulings made by the trial court on questions brought to its attention and passed upon by it. Oregon R. & Nav, Co. v. Dumas, 181 F. 781, 104 C. C. A. 641; Bort v. E. H. McCutchen & Co., 187 P. 798, 109 C. C. A. 558; United States v. National City Bank (C. C. A.) 281 F. 754. These considerations are sufficient to dispose of the case upon the writ of error from this court.” See, also, Southern Surety Co. v. Lee County Bank, Title & Trust Co. (C. C. A. 8) 36 F.(2d) 220; Flanagan v. Benson (C. C. A. 8) 37 P.(2d) 69; Allen v. Hudson, supra; Stewart v. United States (C. C. A. 9) 12 F.(2d) 524. Even if the denial of the appellant’s motion in the court below for a directed verdict had been assigned and specified as error, it would not have entitled him to a review of the question of the sufficiency of the evidence to justify the verdict. The applicable rule is stated in Mansfield Hardwood Lumber Co. v. Horten (C. C. A. 8) 32 F.(2d) 851, 852, in which this court said: “Under the first specification of error appellant has argued the question whether there was any substantial evidence to support a verdict for plaintiff. “We are constrained to hold that the motion was not sufficient to raise the question. Por many years this court has laid down the rule that the question whether there was any substantial evidence to support a judgment for the opposite party can be raised, so as to be reviewable, only by a motion, request for a ruling, request for a declaration of law, or other equivalent action, at the close of the evidence; that such motion, request, or other equivalent action must be based upon a specific ground or grounds stated in apt words and brought sharply to the attention of the court; that a ruling must be obtained and an exception preserved. A general motion stating no grounds" }, { "docid": "15675401", "title": "", "text": "and granted a new trial. Since this was not done, we must affirm as to Hills, and reverse and grant a new trial as to Chicco. Reversed as to Chicco. Affirmed as to Hills. WOODS, Circuit Judge (dissenting). I am unable to agree that the District Judge should have directed the jury to acquit the defendant Chicco for lack of evidence. First. It is significant that neither in the assignments of error nor in the argument did the learned counsel contend that the evidence actually admitted did not make a case for the jury on the issue of the guilt of -Chicco as well as the other defendants. As appears from the twenty-fifth assignment of error and the argument, the contention in the District Court and in this court was that incompetent evidence was admitted, that it should have been struck out, and that without this alleged incompetent evidence the remaining evidence was not sufficient to support a verdict of conviction. The holding of this court that the motion to exclude the evidence was properly refused leaves no basis in the assignments of error for a reversal on the ground that a verdict of acquittal should have been directed. Second. This court cannot set aside a verdict because in its opinion the evidence is not convincing of guilt beyond a reasonable doubt. If there is any competent evidence reasonably tending to prove guilt, the trial judge should submit the case to the jury; the issue of reasonable doubt is for the jury alone. Hays v. United States, 231 Fed. 106, 145 C. C. A. 294; Humes v. United States, 170 U. S. 210, 212, 18 Sup. Ct. 602, 42 L. Ed. 1011; Burton v. United States, 202 U. S. 344, 373, 26 Sup. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362. There was no motion for a new trial; and, even if there had been, the refusal to grant such a motion made on the ground of insufficiency of evidence cannot be assigned as error. Third. The record, as it appears to me, does not bear out the" }, { "docid": "1919033", "title": "", "text": "F. 248, 137 C. C. A. 104; Hoskins v. United States (C. C. A.) 4 F.(2d) 804; Feinberg v. United States (C. C. A.) 2 F.(2d) 955. The eighth assignment is as follows: “For the reason that the court committed error of law in the trial of said cause.” This assignment .is entirely too general to cover the points attempted to be argued under it, and does not conform to the rules of this court. Baggs v. Martin et al., 108 F. 33, 47 C. C. A. 175; Harrington, et al. v. United States (C. C. A.) 267 F. 97; McCabe & Steen Co. v. Wilson, 209 U. S. 275, 28 S. Ct. 558, 52 L. Ed. 788. Passing that question, however, we may say that counsel under this assignment argues: First, that the demurrer filed at the close of the government’s evidence should have been sustained, and that it was error in the court not so to do; second, that certain statements in the instructions of the court to the jury were erroneous. The demurrer was based on lack of evidence to prove that defendants were residents of their respective townships on the dates charged in the information; in other words, that the evidence was not sufficient to sustain the charge. If assignment of error No. 8 was specific enough to cover this question, nevertheless it is the well-established rule that a motion to direct a verdict on the ground of lack of evidence at the close of the government’s, or plaintiff’s, ease (and that is what this demurrer amounted to) is waived by defendants proceeding to introduce evidence. Collins v. United States, 219 F. 670, 135 C. C. A. 342; Short v. United States, 221 F. 248, 137 C. C. A. 104; Steffen v. United States (C. C. A.) 293 F. 30; McCabe & Steen Construction Co. v. Wilson, 209 U. S. 275, 28 S. Ct. 558, 52 L. Ed. 788; Accident Ins. Co. v. Crandal, 120 U. S. 527, 7 S. Ct. 685, 30 L. Ed. 740. Counsel also seek in the same assignment of error to" }, { "docid": "6908898", "title": "", "text": "is not ordinarily assignable for error. United States v. Rosenberg, 5 Wall. 580, 583, 19 L. Ed. 263; Logan v. United States, 144 U. S. 263, 12 S. Ct. 617, 36 L. Ed. 429; Durland v. United States, 161 U. S. 314, 16 S. Ct. 508, 40 L. Ed. 712; Chadwick v. United States (C. C. A.) 141 F. 225, 235; Dillard v. United States (C. C. A.) 141 F. 303, 305; Hillegass v. United States (C. C. A.) 183 F. 199, 200; Lewis v. United States (C. C. A.) 295 F. 441; Stewart v. United States (C. C. A.) 300 F. 769. “As a motion to quash is always addressed to the discretion of the court, a decision upon it is not error, and cannot be reviewed on a writ of error.” United States v. Hamilton, 109 U. S. 63, 3 S. Ct. 9, 27 L. Ed. 857. The courts are not in unison as the propriety of inquiring into the evidence produced before the grand jury. While the federal courts recognize the right to entertain a motion to quash, it is regarded discretionary, and the ruling presents no question for review. Livezey v. United States (C. C. A.) 279 F. 496. The record here discloses no abuse of discretion. Assignment 4 is to the refusal to order the taking of depositions of defendant’s witnesses residing out of the state. It is urged that the West Virginia statute in regard to taking depositions controls. We cannot accept this view. Congress has made provision for service and attendance of witnesses in criminal eases. It was early determined that no power existed in the federal courts to order the taking of depositions in criminal eases. United States v. Thomas, Fed. Cas. No. 16,476. They were unknown and unauthorized at common'law. 8 R. C. L. pp. 86 and 1134. Assignments 5, 6, and 8 are to the refusal to direct a verdict of not guilty at the close of the evidence for the United States, and at the close of all the evidence, and to set .aside the verdict. We have carefully" } ]

[ { "docid": "464888", "title": "", "text": "Rock v. Coombe, 694 F.2d 908, 914 (2 Cir.1982), cert. denied, 460 U.S. 1083 (1983), in which we held that, if a habeas petitioner expressly and unequivocally acknowledged to the district court that he was abandoning his unexhausted claims, we sometimes would exercise our discretion to allow him to do so without requiring the “formalization” of the withdrawal by filing a new petition in the district court. In the instant case, we are convinced that to exercise our discretion in this way would be unwarranted for two reasons. First, in Rock, supra, we stated that “[w]here the petitioner has not clearly and unambiguously abandoned his unexhausted claims at either [the trial or appellate] level, we have remanded to the district court for further proceedings in accordance with Lundy.” Id. at 914 n. 5 (citing Gulliver v. Dalsheim, 687 F.2d 655, 659 (2 Cir.1982)). In the instant case, appellant did not unequivocally abandon his claims at either the trial or the appellate level. At the district court level, he asserted that the claims were exhausted. The district court, after accepting appellant’s assertion, proceeded to rule on all the claims on their merits. On appeal, appellant has stated only conditionally that his claims would be withdrawn, that is, on the condition that we were to find the claims to have been unexhausted. As in Shears v. Israel, 712 F.2d 1220, 1222 (7 Cir.1983), the district court “considered and decided on the merits one of the unexhausted claims”. Thus, “abandonment of that claim at this stage would be more than a formal gesture.” Id. Second, we hold that the unexhausted claims are intertwined with appellant’s claim that he was denied a fair trial by the admission of the children’s testimony and in-court identifications. The state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole. III. To summarize: We hold that appellant has failed to exhaust state remedies with regard to two claims raised on appeal. Accordingly, we vacate the judgment of the district court and remand the case with" } ]

[ { "docid": "12120910", "title": "", "text": "103 S.Ct. 392, 74 L.Ed.2d 521 (1982). In such circumstances, adequate and independent state grounds exist to bar federal habeas review. However, where a constitutional claim is clearly not subject to procedural forfeiture under state law, an inference that the state appellate court’s silence indicates a decision resting on a procedural default rather than a negative view of the merits cannot be justified. Federal habeas review of the merits in such circumstances is not barred. Hawkins v. LeFevre, 758 F.2d 866, 874 (2d Cir.1985). Under New York law, the Court of Appeals will entertain a claim of ineffective assistance of counsel despite the defendant’s failure to raise that claim at trial or before the Appellate Division. See People v. Angelakos, 70 N.Y.2d 670, 673, 518 N.Y.S.2d 784, 786, 512 N.E.2d 305, 307 (1987); People v. Jones, 55 N.Y.2d 771, 773, 447 N.Y.S.2d 242, 243, 431 N.E.2d 967, 968 (1981). Given that rule, we cannot infer that in silently affirming Waterhouse’s conviction, the Court of Appeals’ decision was based on a procedural default rather than on the merits. Accordingly, we hold that Waterhouse’s ineffective assistance of counsel claim was exhausted and now turn to the merits. 3. Waterhouse’s Sixth Amendment Claim In holding that Waterhouse was deprived of his sixth amendment right to effective assistance of counsel, the district court relied solely upon Solina v. United States, 709 F.2d 160 (2d Cir.1983). Solina had been represented at his trial for bank robbery by one Coleman, a law school graduate who had never been admitted to the practice of law in any state. Eleven years after his conviction, Solina learned of Coleman’s unlicensed status. He then brought an action under 28 U.S.C. § 2255 seeking vacatur of his conviction and a new trial. The district court agreed that Solina had been denied his sixth amendment right to effective assistance of counsel but denied the motion based upon its conclusion that the sixth amendment violation was harmless beyond a reasonable doubt. See id. at 161-62. We agreed with the district court’s conclusion that, given the evidence against Solina, even a lawyer admitted in" }, { "docid": "23595498", "title": "", "text": "petition asserting that representation by LaFreniere on the day he was disbarred was a per se infringement of Waterhouse’s Sixth Amendment right to counsel. We ruled that this claim must be rejected. There was no suggestion that LaFreniere had not been duly and properly admitted to practice law, and implicit in our decision was the view that disbarment is not necessarily the equivalent of nonadmission. In addition, we noted that Solina’s discussion of the risks attendant on representation by a person who had not been duly admitted as an attorney had no applicability to LaFreniere, because as soon as LaFreniere became aware of his disbarment he withdrew. Thus, during his representation of Waterhouse, “LaFreniere had no reason to fear that vigorous advocacy on behalf of his client would expose him to” disclosure of, and penalties for, unauthorized practice. Id. at 383. We therefore concluded that Waterhouse had not “ ‘lacked counsel’ in any way implicating the concerns behind the per se rule of Solina.” Id. In general, other courts that have dealt with the effect of disbarment or suspension have tended to follow the substantive-technical dichotomy discussed in Solina. For example, where the defendants’ attorneys have been suspended for merely technical reasons such as nonpayment of bar dues, the courts have ruled these grounds insufficient to warrant a conclusion of per se violation of the right to counsel. See, e.g., People v. Medler, 177 Cal.App.3d 927, 930, 223 Cal.Rptr. 401, 402 (1986); Johnson v. State, 225 Kan. 458, 590 P.2d 1082, 1086-87 (1979) (cited in Solina); Hill v. State, 393 S.W.2d 901, 904 (Tex.Crim.App.1965); see also United States v. Mouzin, 785 F.2d 682, 694-99 (9th Cir.) (where federal appeals court had suspended attorney from practice in that court for procedural defaults and kiting a check to court reporter in unrelated case, district court was not required automatically to suspend him immediately from practice in district court but rather had discretion to permit him to continue with lengthy trial without violating trial defendant’s Sixth Amendment rights), cert. denied, 479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 577 (1986). In contrast, where" }, { "docid": "12901634", "title": "", "text": "a crucial witness. Brown stated: “I want to reopen this on the grounds that it’s my opinion that this defendant’s constitutional rights have been violated.” Tr. 227. Although Brown did not raise the subject of LaFreniere’s disbarment explicitly, he did raise a sixth amendment claim when he said that prior counsel failed to call a vital witness and that this violated Waterhouse’s constitutional rights. What is more, when Waterhouse petitioned in April 1969 for a writ of error coram nobis, he raised the question of ineffective assistance of counsel by discussing the disbarment of LaFreniere and his failure to call important witnesses. The attack on LaFreniere’s effectiveness continued in Waterhouse’s briefs in the appellate division and the court of appeals. See, e.g., Brief for Appellant at 11, People v. Waterhouse, 35 N.Y.2d 688, 319 N.E.2d 422, 361 N.Y.S.2d 160 (1974) (“[T]he threat of disbarment facing Mr. LaFreniere on the day of the Huntley hearing substantially affected that attorney’s representation of the appellant.”). It is true that Waterhouse did not present his sixth amendment claim to the state courts with the same care and thoroughness that he demonstrated in this court. But he gave the state courts a fair chance to decide the sixth amendment claim, and that suffices to satisfy the exhaustion requirement. In light of this court’s conclusion that Waterhouse did present his sixth amendment claim to the state trial and appellate courts, the court finds no merit in the State’s contention that there was a procedural waiver within the meaning of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Because Waterhouse adequately presented his sixth amendment claim to the state courts, the court turns to the merits of the claim. II. Sixth Amendment Claim Twenty years ago, the D.C. Circuit held that the sixth amendment, which guarantees criminal defendants the assistance of counsel, is violated when a defendant is represented by an individual who is not a member of the bar. Writing for the court, Judge Robinson stated: Failure to heed the constitutional admonition that the accused enjoy the right to assistance of" }, { "docid": "12120901", "title": "", "text": "to make a telephone call or seek legal counsel. Mr. Brown wished to produce this witness who was then in the courtroom again. In Point II, “Finding of voluntariness of statement and waiver of rights not supported by the record,” Waterhouse argued that the warnings given to him were insufficient by the standards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that his confession was involuntary. The Appellate Division affirmed Waterhouse’s conviction without opinion. People v. Waterhouse, 38 A.D.2d 1010, 331 N.Y.S. 2d 372 (2d Dep’t 1972). Acting pro se, Waterhouse then sought leave to appeal to the New York State Court of Appeals. In support of his motion, he contended that he had been given only a partial Huntley hearing because he was not afforded the opportunity to call witnesses who were present at the hearing. Waterhouse argued that the refusal to reopen the Huntley hearing so hampered Brown’s representation that he was denied effective assistance of counsel and forced to accept a last-chance plea. Waterhouse also sent a letter to Judge Marcus G. Christ of the Appellate Division. In this letter, he repeated his argument concerning the lack of opportunity to call witnesses upon his behalf. He also stated that he had urged his appellate counsel “repeatedly to raise this issue on appeal with no apparent success.” Finally, he raised for the first time a claim that LaFreniere’s (rather than Brown’s) representation, had been ineffective. He stated that “the total circumstances of the initial hearing and counsels [sic] disbarment, raised serious questions of said counsels [sic] competency and the affect upon appellant’s right to a full plenary hearing.” The state responded that the “alleged inadequacy of various attorneys assigned to him during the various proceedings” involved events that were not part of the record on appeal. Judge Christ granted leave to appeal to the Court of Appeals on May 22, 1972. Water-house was assigned new counsel for the appeal. Waterhouse’s brief in the Court of Appeals raised two new points, one of which, “Point III,” is relevant to the present appeal." }, { "docid": "12901632", "title": "", "text": "exhaustion: In summary, the ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984). The court finds that Waterhouse has satisfied the requirements of Daye. Waterhouse’s claim that he was denied the effective assistance of counsel has two branches. The second branch, which the court does not reach, is that Waterhouse was the victim of bad lawyering in a pretrial hearing and in his appeal to the New York Court of Appeals. The first branch, which the court finds exhausted and meritorious, is that Waterhouse’s attorney was disbarred during the pretrial hearing. The pretrial “Huntley hearing,” see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), concerned Waterhouse’s contention that his confession was coerced. Waterhouse was represented throughout the Huntley hearing by Edward LaFreniere, who was disbarred on the second day of the hearing. See Suffolk County Bar Association v. LaFreniere, 26 A.D.2d 946, 274 N.Y.S.2d 656 (2d Dep’t 1966), motion for leave to appeal dismissed, 19 N.Y.2d 809, 226 N.E.2d 700, 279 N.Y.S.2d 967 (1967). On the same day, the hearing court concluded that Waterhouse “knowingly, intelligently and voluntarily waived his rights and the statement is admissible,” Tr. 183. At trial, which began more than three months later before a different judge, Waterhouse’s new attorney, Harry R. Brown, repeatedly requested a new Huntley hearing. The main thrust of Brown’s argument was that he should not be bound by the hearing court’s determination, because LaFreniere failed to call" }, { "docid": "12120915", "title": "", "text": "this case. LaFreniere was a member of the bar when the Huntley hearing began. He ceased representation of Waterhouse immediately after learning of the disbarment. There was thus no conflict of interest, much less the sort of egregious conduct that the rule in Solina is designed to prevent. It is by no means clear that a state can sanction a lawyer for representing a client when a disbarment order has been entered that day but is as yet unknown to the lawyer. Such a rule would encounter a severe, if not insurmountable, constitutional objection and is unnecessary in light of the state’s power to suspend attorneys pending final disposition of grievances against them. Unlike thé phony attorney in Soli-na, or the attorney who himself was guilty of the same crimes for which his client was being tried in Cancilla, LaFreniere had no reason to fear that vigorous advocacy on behalf of his client would expose him to criminal liability or any other sanction. If anything, the charges pending against La-Freniere provided an incentive for the vigorous efforts he appears to have expended. Moreover, the charges underlying his disbarment were unrelated to his representation of Waterhouse, and we do not agree with the district court that these charges were “very similar” to his failure to call Norwood at the Huntley hearing. LaFre-niere did call Waterhouse himself and otherwise participated vigorously in the hearing. Given Norwood’s limited contact with pertinent events, the failure to call him is hardly the equivalent of the acceptance of legal fees with no subsequent representation. We therefore cannot accept the district court’s conclusion that on the second day of the hearing, Waterhouse “lacked counsel” in any way implicating the concerns behind the per se rule of Solina. CONCLUSION The order of the district court conditionally granting the writ on the grounds that Waterhouse’s sixth amendment rights were violated is reversed. We remand to the district court for consideration of his coerced-confession claim, which can proceed after Waterhouse withdraws the involuntary-plea claim. . Our recent decision in Grady v. Lefevre, 846 F.2d 862 (2d Cir.1988), is thus distinguishable." }, { "docid": "12120902", "title": "", "text": "sent a letter to Judge Marcus G. Christ of the Appellate Division. In this letter, he repeated his argument concerning the lack of opportunity to call witnesses upon his behalf. He also stated that he had urged his appellate counsel “repeatedly to raise this issue on appeal with no apparent success.” Finally, he raised for the first time a claim that LaFreniere’s (rather than Brown’s) representation, had been ineffective. He stated that “the total circumstances of the initial hearing and counsels [sic] disbarment, raised serious questions of said counsels [sic] competency and the affect upon appellant’s right to a full plenary hearing.” The state responded that the “alleged inadequacy of various attorneys assigned to him during the various proceedings” involved events that were not part of the record on appeal. Judge Christ granted leave to appeal to the Court of Appeals on May 22, 1972. Water-house was assigned new counsel for the appeal. Waterhouse’s brief in the Court of Appeals raised two new points, one of which, “Point III,” is relevant to the present appeal. In that point, Waterhouse argued that “[w]here the physical condition of the defense attorney brings into question the fairness of the proceedings, a new evidentiary hearing is in order.” Waterhouse asserted that the pressure of facing disbarment substantially affected LaFreniere's representation of Waterhouse at the Huntley hearing. In response, the state argued that Water-house's failure to raise LaFreniere’s impairment at trial or on appeal to the Appellate Division constituted a waiver. In the alternative, the state argued there was no evidence that LaFreniere was incapacitated. On October 7, 1974, the Court of Appeals affirmed, without opinion, the judgment of the Appellate Division. People v. Waterhouse, 35 N.Y.2d 688, 361 N.Y.S.2d 160, 319 N.E.2d 422 (1974). DISCUSSION- 1. The Rose v. Lundy Problem Judge Glasser granted the writ on the grounds that Waterhouse had exhausted his sixth amendment claim in the state courts and that that claim was meritorious under our decision in Solina. He did not reach Waterhouse’s other claims. He understandably perceived no need to reach the coerced-confession claim, conceded by respondents to have" }, { "docid": "12120892", "title": "", "text": "He had been paroled in 1975. On December 19, 1986, Waterhouse filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982) in the Eastern District seeking vacatur of the New York conviction as part of a collateral attack upon the Florida death sentence. His petition set out three claims. The first and second alleged that a confession used against him was coerced and that his guilty plea was involuntary. Judge Glasser granted the writ on Waterhouse’s third claim, which asserted that the disbarment of Waterhouse’s counsel during a pretrial suppression hearing resulted in the denial of Waterhouse’s sixth amendment right to effective assistance of counsel under Solina. Waterhouse v. Rodriguez, 660 F.Supp. 319 (E.D.N.Y.1987). On appeal, respondents argue that Waterhouse’s failure to raise his sixth amendment claim either at trial or in his appeal to the Appellate Division precludes a finding that he has exhausted this claim in the state courts. In the alternative, they contend that, even if the claim is deemed exhausted, Solina does not apply in the circumstances of this case and that the petition should be dismissed on the merits. We hold that Waterhouse exhausted his sixth amendment claim but that Solina does not apply on the facts of this case. Accordingly, we reverse and remand. BACKGROUND At about 8:15 p.m. on February 11, 1966, the nude body of Mrs. Ella Mae Carter, a 76-year old resident of Greenport, New York, was found lying across her bed. She had multiple injuries on her head and body and had been strangled. When Water-house arrived home sometime after 1:00 a.m., on February 12, he found a message that the police wanted to speak to him. Accompanied by a family friend, Kenneth Norwood, he. voluntarily arrived at the Greenport police station at approximately 2:00. a.m. Sometime later, Norwood was told to leave. After questioning Waterhouse about Mrs. Carter’s death for approximately one hour, the police became concerned about the number of people passing through the station who could look through a window into the room in which they were interrogating Waterhouse. They decided," }, { "docid": "12120900", "title": "", "text": "should have been decided before trial commenced.” The three-paragraph argument in support of this proposition was based entirely upon Section 813-h of the New York Criminal Procedure Law (repealed 1970, current version at N.Y.Crim.Pro.Law § 710.40(3) (McKinney 1984)), which required pretrial suppression motions to be decided prior to trial. In the fourth and final paragraph of Point I,. Wa-terhouse argued: The entire concept behind the preliminary hearing process was breached when this crucial question [of whether there should be a new Huntley hearing] was left open by the trial judge. Certainly Mr. Brown should have been granted the right to a new hearing. The hearing conducted by Mr. LaFreniere was fine as far as it went, but many questions were unanswered that could have been supplied by a witness who was present in court. That witness was Kenneth Norwood. He could have testified as to the degree of the defendant’s intoxication when he voluntarily appeared at the police station in Greenport. He might have been able to testify concerning the requests made by the defendant to make a telephone call or seek legal counsel. Mr. Brown wished to produce this witness who was then in the courtroom again. In Point II, “Finding of voluntariness of statement and waiver of rights not supported by the record,” Waterhouse argued that the warnings given to him were insufficient by the standards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that his confession was involuntary. The Appellate Division affirmed Waterhouse’s conviction without opinion. People v. Waterhouse, 38 A.D.2d 1010, 331 N.Y.S. 2d 372 (2d Dep’t 1972). Acting pro se, Waterhouse then sought leave to appeal to the New York State Court of Appeals. In support of his motion, he contended that he had been given only a partial Huntley hearing because he was not afforded the opportunity to call witnesses who were present at the hearing. Waterhouse argued that the refusal to reopen the Huntley hearing so hampered Brown’s representation that he was denied effective assistance of counsel and forced to accept a last-chance plea. Waterhouse also" }, { "docid": "12120916", "title": "", "text": "vigorous efforts he appears to have expended. Moreover, the charges underlying his disbarment were unrelated to his representation of Waterhouse, and we do not agree with the district court that these charges were “very similar” to his failure to call Norwood at the Huntley hearing. LaFre-niere did call Waterhouse himself and otherwise participated vigorously in the hearing. Given Norwood’s limited contact with pertinent events, the failure to call him is hardly the equivalent of the acceptance of legal fees with no subsequent representation. We therefore cannot accept the district court’s conclusion that on the second day of the hearing, Waterhouse “lacked counsel” in any way implicating the concerns behind the per se rule of Solina. CONCLUSION The order of the district court conditionally granting the writ on the grounds that Waterhouse’s sixth amendment rights were violated is reversed. We remand to the district court for consideration of his coerced-confession claim, which can proceed after Waterhouse withdraws the involuntary-plea claim. . Our recent decision in Grady v. Lefevre, 846 F.2d 862 (2d Cir.1988), is thus distinguishable. In that case, the exhausted and unexhausted claims were \"intertwined,\" id. at 865, and the state courts never had an \"opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole.\" Id. . The decisions cited occurred well after Water-house’s appeal. Nevertheless, they equate the right to effective assistance with the right to counsel. See Jones, 55 N.Y.2d at 773, 447 N.Y.S. 2d at 243, 431 N.E.2d at 968 (citing People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 (1981)). The right to counsel, of course, pre-exists Waterhouse’s appeal." }, { "docid": "12120909", "title": "", "text": "in state court provides dispositive and independent state grounds for upholding the conviction, thereby rendering federal habeas review superfluous. Id. at 86-87, 97 S.Ct. at 2506-07. We must thus address the question whether Waterhouse’s failure to raise the sixth amendment claim earlier was a procedural default and was the basis for the Court of Appeals’ affirmance of his conviction. In its brief to the Court of Appeals, the state argued that Waterhouse’s “Point III” had not been previously raised and was therefore barred under New York law. The Court of Appeals affirmed without opinion. When the state has urged affirmance of a conviction on procedural grounds as well as on the mer its and the state appellate court affirms without opinion, a federal court will generally infer that the state appellate court based its decision upon the petitioner’s procedural default. See Rosenfeld v. Dunham, 820 F.2d 52, 54 (2d Cir.), cert. denied, — U.S.-, 108 S.Ct. 463, 98 L.Ed.2d 402 (1987); Martinez v. Harris, 675 F.2d 51, 54 (2d Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 392, 74 L.Ed.2d 521 (1982). In such circumstances, adequate and independent state grounds exist to bar federal habeas review. However, where a constitutional claim is clearly not subject to procedural forfeiture under state law, an inference that the state appellate court’s silence indicates a decision resting on a procedural default rather than a negative view of the merits cannot be justified. Federal habeas review of the merits in such circumstances is not barred. Hawkins v. LeFevre, 758 F.2d 866, 874 (2d Cir.1985). Under New York law, the Court of Appeals will entertain a claim of ineffective assistance of counsel despite the defendant’s failure to raise that claim at trial or before the Appellate Division. See People v. Angelakos, 70 N.Y.2d 670, 673, 518 N.Y.S.2d 784, 786, 512 N.E.2d 305, 307 (1987); People v. Jones, 55 N.Y.2d 771, 773, 447 N.Y.S.2d 242, 243, 431 N.E.2d 967, 968 (1981). Given that rule, we cannot infer that in silently affirming Waterhouse’s conviction, the Court of Appeals’ decision was based on a procedural default rather than on" }, { "docid": "12120897", "title": "", "text": "asleep about halfway to Riverhead. They conceded that he was told to remove his clothes so the officers might determine whether he had bruises in addition to observable facial scratches. After five minutes, he was allowed to dress. After the Huntley hearing concluded on the morning of November 15, 1966, Judge Mclnerney found beyond a reasonable doubt that the facts were as the police had described and that the confession was admissible because “as a matter of law ... the defendant knowingly, intelligently and voluntarily waived his rights.” Jury selection was scheduled to commence shortly thereafter. Instead, the court declared a mistrial when it learned that LaFreniere, who had been a member of the New York bar since 1934, had been disbarred for misappropriating client funds and for failing to represent clients after accepting fees. See Suffolk County Bar Ass’n v. La Freniere, 26 A.D.2d 946, 274 N.Y.S.2d 656 (2d Dep’t 1966), appeal dismissed, 19 N.Y.2d 809, 279 N.Y.S.2d 967, 226 N.E.2d 700, motion denied, 19 N.Y.2d 920, 201 N.Y.S.2d 105, 227 N.E.2d 899 (1967). The order of disbarment became effective when entered on November 15, 1966, the second and final day of the Huntley hearing. LaFreniere withdrew as Waterhouse’s counsel upon learning of his disbarment. Harry R. Brown was thereafter appointed as counsel for Waterhouse. On March 6, 1967, jury selection began, this time before Judge Stark. Brown made several oral applications, including a motion for a new Huntley hearing. He claimed that he should not be bound by the actions of his client’s previous attorney. Brown, who had read a transcript of the Huntley hearing, noted LaFreniere’s failure to call witnesses other than Waterhouse and referred specifically to Norwood, who was again present in the courtroom. He also stated his belief that the challenge to Waterhouse’s confession would have succeeded had other witnesses been called. Judge Stark was not persuaded but gave Brown permission to file a memorandum addressing his right to reopen the hearing. On March 8, 1967, after jury selection had been completed, Brown renewed his motion for another Huntley hearing. Judge Stark denied the motion" }, { "docid": "23595497", "title": "", "text": "the period of representation and had later been suspended or disbarred. The Felder court noted that it expressed no view as to the effect, under the Sixth Amendment, of a disbarment of the accused’s counsel. 47 N.Y.2d at 294 n. 6, 418 N.Y.S.2d at 298 n. 6, 391 N.E.2d at 1277 n. 6. This Court was concerned with the effect of disbarment in Waterhouse v. Rodriguez, 848 F.2d 375 (2d Cir.1988), cert. denied, — U.S. -, 110 S.Ct. 564, 107 L.Ed.2d 558 (1989), which involved a defendant whose attorney, one LaFreniere, was disbarred for misappropriating client funds and failing to represent clients after accepting their fees. The order of disbarment, which was premised on conduct unrelated to the representation of Waterhouse, was entered on the second and final day of a pretrial hearing in Waterhouse’s case. As soon as LaFreniere learned of his disbarment, he withdrew from representing Waterhouse. Successor counsel moved unsuccessfully for a new pretrial hearing on the ground of LaFreniere’s disbarment, and the case came to us in connection with Water-house’s habeas petition asserting that representation by LaFreniere on the day he was disbarred was a per se infringement of Waterhouse’s Sixth Amendment right to counsel. We ruled that this claim must be rejected. There was no suggestion that LaFreniere had not been duly and properly admitted to practice law, and implicit in our decision was the view that disbarment is not necessarily the equivalent of nonadmission. In addition, we noted that Solina’s discussion of the risks attendant on representation by a person who had not been duly admitted as an attorney had no applicability to LaFreniere, because as soon as LaFreniere became aware of his disbarment he withdrew. Thus, during his representation of Waterhouse, “LaFreniere had no reason to fear that vigorous advocacy on behalf of his client would expose him to” disclosure of, and penalties for, unauthorized practice. Id. at 383. We therefore concluded that Waterhouse had not “ ‘lacked counsel’ in any way implicating the concerns behind the per se rule of Solina.” Id. In general, other courts that have dealt with the effect" }, { "docid": "12120891", "title": "", "text": "WINTER, Circuit Judge: In Solina v. United States, 709 F.2d 160 (2d Cir.1983), we held that a criminal defendant is denied his sixth amendment right to effective assistance of counsel when, unbeknownst to the defendant, he is represented by unlicensed counsel. This appeal raises the question whether Solina applies when a defendant’s counsel is disbarred during a pretrial proceeding but withdraws after becoming aware of the disbarment. Petitioner Robert B. Waterhouse is under a sentence of death in Florida for first-degree murder of Deborah Kammer in 1980. Waterhouse v. State, 429 So.2d 301 (Fla.), cert. denied, 464 U.S. 977, 104 S.Ct. 415, 78 L.Ed.2d 352 (1983). Two of the five aggravating factors that justified imposition of the death sentence concern a prior encounter Waterhouse had with the New York legal system. The first was Water-house's previous conviction in a New York court for second-degree murder, a crime of violence. The second was that Waterhouse was still on parole for the New York murder, and therefore under a sentence of imprisonment, when he murdered Deborah Kammer. He had been paroled in 1975. On December 19, 1986, Waterhouse filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982) in the Eastern District seeking vacatur of the New York conviction as part of a collateral attack upon the Florida death sentence. His petition set out three claims. The first and second alleged that a confession used against him was coerced and that his guilty plea was involuntary. Judge Glasser granted the writ on Waterhouse’s third claim, which asserted that the disbarment of Waterhouse’s counsel during a pretrial suppression hearing resulted in the denial of Waterhouse’s sixth amendment right to effective assistance of counsel under Solina. Waterhouse v. Rodriguez, 660 F.Supp. 319 (E.D.N.Y.1987). On appeal, respondents argue that Waterhouse’s failure to raise his sixth amendment claim either at trial or in his appeal to the Appellate Division precludes a finding that he has exhausted this claim in the state courts. In the alternative, they contend that, even if the claim is deemed exhausted, Solina does not apply in" }, { "docid": "12120907", "title": "", "text": "a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. Id. Although we cannot agree with the district court that Waterhouse raised his ineffective assistance of counsel argument before the Appellate Division, we believe that issue was raised in the Court of Appeals. His argument in the Appellate Division was essentially a claim that a second Huntley hearing was necessary because of the requirements of New York procedural law. His subsequent letter to Judge Christ in support of his motion for leave to appeal claimed for the first time that he had received ineffective assistance from LaFreniere. After that motion was granted, his brief to the Court of Appeals noted that LaFreniere was disbarred as of the last day of the Huntley hearing and claimed that the prospect of disbarment “substantially affected” LaFreniere’s representation. Although the claim may have been spare in detail, we believe that it sufficed “to call to mind a specific right protected by the Constitution” or amounted to an “allegation of a pattern of facts that is well within the mainstream of constitutional litigation.” Id. The state’s response to the motion for leave to appeal acknowledged that Waterhouse’s papers complained of the “inadequacy” of his various counsel, and its brief in the Court of Appeals recognized the nature of his newly-raised claim by denying there was any evidence of LaFreniere’s incapacitation at the Huntley hearing. Although Waterhouse now frames his claim as a per se violation of his sixth amendment right in light of Solina, we believe that his claim was raised in a sufficiently precise manner in the Court of Appeals to satisfy the requirements of Daye. Even though Waterhouse has satisfied the “fair opportunity” standard of Daye so far as the New York Court of Appeals is concerned, his failure to raise it in the lower New York courts may nevertheless bar him from obtaining federal review of his claim. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). According to Sykes, a procedural default" }, { "docid": "12120913", "title": "", "text": "constraints on their ability to provide effective representation to a criminal defendant. “Such a person cannot be wholly free from fear of what might happen if a vigorous defense should lead the prosecutor or the trial judge to inquire into his background and discover his lack of credentials.” Id. at 164. We also noted that someone insensitive to the duty not to undertake representation in a criminal proceeding without a license is hardly likely to be more sensitive to his or her duty of undivided loyalty to the client. Id. at 164-65. The alternative rationale of Solina was embraced in United States v. Cancilla, 725 F.2d 867 (2d Cir.1984), where a defendant was represented by licensed counsel who was himself guilty of the same criminal conduct for which the defendant was being tried. The rationale for applying the per se rule was that, as in Solina, a vigorous defense risked exposure of the defense counsel’s participation in the crimes. Id. at 870. Nevertheless, we have adopted and applied the per se rule “without enthusiasm,” however, see Solina, 709 F.2d at 169; Cancilla, 725 F.2d at 870, and we have never purported to expand applicability of the rule beyond the sort of egregious conduct present in Solina and Cancilla. The district court concluded that LaFreniere’s representation of Waterhouse at the Huntley hearing fell squarely within Soli-na on the ground that Waterhouse lacked licensed counsel because “LaFreniere was not an attorney” during the second day of the Huntley hearing. 660 F.Supp. at 324. The district court also noted that LaFreniere was disbarred for “want of moral character” within the meaning of that phrase in Solina. Id. Indeed, the district court considered the charges that led to LaFreniere’s disbarment — that he accepted fees from clients but failed to make any efforts on their behalf and that he misappropriated client funds — “very similar” to Waterhouse’s charge that LaFreniere failed to call available witnesses at the Huntley hearing. Id. We disagree, however, with both the district court’s interpretation of the record and its conclusion that the per se rule of Solina applies to" }, { "docid": "12901633", "title": "", "text": "New York Court of Appeals. The first branch, which the court finds exhausted and meritorious, is that Waterhouse’s attorney was disbarred during the pretrial hearing. The pretrial “Huntley hearing,” see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), concerned Waterhouse’s contention that his confession was coerced. Waterhouse was represented throughout the Huntley hearing by Edward LaFreniere, who was disbarred on the second day of the hearing. See Suffolk County Bar Association v. LaFreniere, 26 A.D.2d 946, 274 N.Y.S.2d 656 (2d Dep’t 1966), motion for leave to appeal dismissed, 19 N.Y.2d 809, 226 N.E.2d 700, 279 N.Y.S.2d 967 (1967). On the same day, the hearing court concluded that Waterhouse “knowingly, intelligently and voluntarily waived his rights and the statement is admissible,” Tr. 183. At trial, which began more than three months later before a different judge, Waterhouse’s new attorney, Harry R. Brown, repeatedly requested a new Huntley hearing. The main thrust of Brown’s argument was that he should not be bound by the hearing court’s determination, because LaFreniere failed to call a crucial witness. Brown stated: “I want to reopen this on the grounds that it’s my opinion that this defendant’s constitutional rights have been violated.” Tr. 227. Although Brown did not raise the subject of LaFreniere’s disbarment explicitly, he did raise a sixth amendment claim when he said that prior counsel failed to call a vital witness and that this violated Waterhouse’s constitutional rights. What is more, when Waterhouse petitioned in April 1969 for a writ of error coram nobis, he raised the question of ineffective assistance of counsel by discussing the disbarment of LaFreniere and his failure to call important witnesses. The attack on LaFreniere’s effectiveness continued in Waterhouse’s briefs in the appellate division and the court of appeals. See, e.g., Brief for Appellant at 11, People v. Waterhouse, 35 N.Y.2d 688, 319 N.E.2d 422, 361 N.Y.S.2d 160 (1974) (“[T]he threat of disbarment facing Mr. LaFreniere on the day of the Huntley hearing substantially affected that attorney’s representation of the appellant.”). It is true that Waterhouse did not present his sixth amendment claim to" }, { "docid": "12901645", "title": "", "text": "when he was represented by an attorney who, unknown to the defendant, had engaged in criminal conduct similar to that charged in the indictment. Indeed, Strickland itself held that “[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.” 466 U.S. at 692, 104 S.Ct. at 2067. That is precisely what occurred here, because LaFreniere was not an attorney during the second day of Waterhouse’s Huntley hearing. The Court has reiterated that harmless error analysis does not apply when an accused is denied the right to counsel, because this deprivation renders his trial fundamentally unfair. See Pope v. Illinois, — U.S. -, —, 107 S.Ct. 1918, 1922, 95 L.Ed.2d 439 (U.S.1987); Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986); cf. Walberg v. Israel, 766 F.2d 1071, 1074 (7th Cir.) (Posner, J.) (harmless error analysis does not apply when defendant is deprived of right to modicum of adversary procedure), cert. denied, — U.S. -, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985); id. at 1075 (per se rule of Solina and United States v. Hoffman, 733 F.2d 596, 599-600 (9th Cir., 1984), remains valid in wake of Strickland). In short, Solina is the law of this circuit and governs this case. Waterhouse’s New York conviction cannot stand because he was deprived of his sixth amendment right to the effective assistance of counsel. III. Conclusion A writ of habeas corpus, vacating Water-house’s New York conviction, shall be issued unless the State retries him within sixty days of the date of this memorandum and order. In view of the court’s resolution of Waterhouse’s sixth amendment claim, it is unnecessary to reach his other two claims. Waterhouse’s claim that his guilty plea was not a knowing and voluntary waiver of his rights becomes moot. His claim that his confession was coerced may be dealt with in a suppression hearing before his new trial. This time, Water-house will have an opportunity to seek suppression with the effective assistance of counsel. SO ORDERED." }, { "docid": "12120893", "title": "", "text": "the circumstances of this case and that the petition should be dismissed on the merits. We hold that Waterhouse exhausted his sixth amendment claim but that Solina does not apply on the facts of this case. Accordingly, we reverse and remand. BACKGROUND At about 8:15 p.m. on February 11, 1966, the nude body of Mrs. Ella Mae Carter, a 76-year old resident of Greenport, New York, was found lying across her bed. She had multiple injuries on her head and body and had been strangled. When Water-house arrived home sometime after 1:00 a.m., on February 12, he found a message that the police wanted to speak to him. Accompanied by a family friend, Kenneth Norwood, he. voluntarily arrived at the Greenport police station at approximately 2:00. a.m. Sometime later, Norwood was told to leave. After questioning Waterhouse about Mrs. Carter’s death for approximately one hour, the police became concerned about the number of people passing through the station who could look through a window into the room in which they were interrogating Waterhouse. They decided, therefore, to take him to the Seventh Squad detective office in River-head, a half hour ride from Greenport. The questioning continued during the ride, except for a fifteen minute period during which Waterhouse appeared to have fallen asleep. Sometime after arriving in Riverhead, Waterhouse confessed to the killing. A confession was then typed out, which Wa-terhouse signed after initialing some corrections. The second paragraph of the confession stated “I have been advised-that I do not have to give a statement, but I would like to cooperate and give this statement. I do not want a lawyer now but would like to have one when I go to court.” Waterhouse signed the confession at approximately 6:00 a.m. on the morning of February 12, 1966. He was then arrested and charged with first-degree murder. Waterhouse’s first lawyer, Edward La-Freniere, obtained a pretrial “Huntley hearing,” see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), before Judge Mclnemey of Suffolk County Court, to determine whether Waterhouse’s confession had been coerced. At the hearing, four" }, { "docid": "12120903", "title": "", "text": "In that point, Waterhouse argued that “[w]here the physical condition of the defense attorney brings into question the fairness of the proceedings, a new evidentiary hearing is in order.” Waterhouse asserted that the pressure of facing disbarment substantially affected LaFreniere's representation of Waterhouse at the Huntley hearing. In response, the state argued that Water-house's failure to raise LaFreniere’s impairment at trial or on appeal to the Appellate Division constituted a waiver. In the alternative, the state argued there was no evidence that LaFreniere was incapacitated. On October 7, 1974, the Court of Appeals affirmed, without opinion, the judgment of the Appellate Division. People v. Waterhouse, 35 N.Y.2d 688, 361 N.Y.S.2d 160, 319 N.E.2d 422 (1974). DISCUSSION- 1. The Rose v. Lundy Problem Judge Glasser granted the writ on the grounds that Waterhouse had exhausted his sixth amendment claim in the state courts and that that claim was meritorious under our decision in Solina. He did not reach Waterhouse’s other claims. He understandably perceived no need to reach the coerced-confession claim, conceded by respondents to have been exhausted, because Waterhouse would be entitled to a new Huntley hearing at his new trial. Judge Glasser also held that there was no need to reach the involuntary-plea issue in view of Waterhouse’s entitlement to a new trial. Whether the involuntary-plea claim has been exhausted is a matter in dispute, however, and under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the district court should not have reached the merits of any of Waterhouse’s claims until it first determined that each of them had been exhausted. Indeed, as matters now stand on this appeal, there is a question as to whether we can address the merits of the granting of the writ in light of the status of the involuntary-plea claim. We believe it clear that the involuntary-plea claim was never raised in the state courts. The only claim involving his guilty plea was Waterhouse’s assertion that he had not been advised of his right to appeal (which he was then accorded). He never argued that his plea was" } ]

[ { "docid": "22690715", "title": "", "text": "of two divergent or conflicting systems of law, one to be applied in . the state courts, the other to be availed Of in. the federal courts, only in case of diversity of citizenship. That object would be thwarted if the federal courts were free to choose their own rulés of decision whenever the highest court of the state has not spoken.. A state is not without law save as its highest court has declared it.. There are many rules of decision commonly accepted and acted upon by the bar and inferior courts which are nevertheless laws of the state although the highest court of the state has never passed- upon them. In those circumstances-a'federal court is not free to reject the state rule merely because it has not received the sanction of the highest-state court,, even though it thinks the rule, is unsound in principle or that- another is preferable. State law is to be applied in the federal as well as the state courts and it is the duty of the former in every case to ascertain from all the available data what the state law is and apply it rather than to prescribe a . different rule, however superior it may appear from the viewpoint of “general law” and however much the state rule may have departed from prior decisions of the fed-' eral courts. See Erie Railroad Co. v. Tompkins, supra, 78; Russell v. Todd, supra, 203. Where an intermediate appellate state court rests its considered -judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by á federal court unless it is convinced by other persuasive data that the highest court of the. state would .decide otherwise. Six Companies of California v. Joint Highway District, ante; p; 180; Fidelity Union Trust Co. v. Field, ante, p. 169. Cf. Graham v. White-Phillips Co., 296 U. S. 27; Wichita Royalty Co. v. City National Bank, supra, 107; Russell v. Todd, supra. This is the more so-where, as in this ■case, the highest court.has refused" } ]

[ { "docid": "1910224", "title": "", "text": "English Language 1402 (William Morris ed., New College ed.l976)(defining \"unless” as \"[ejxcept on the condition that; except under the circumstances that”). A more aggressive reading of the passage — namely the requirement that the intervening case \"resolv[e] the issue” — might additionally compel the determination that any intervening case law must definitively and directly contradict the Tenth Circuit interpretation in order to be considered \"intervening.” It is difficult, to know whether Judge McConnell’s limitation of \"intervening decision” to cases from the highest state court was an oversight or intentional. Most of the Tenth Circuit's previous formulations of this rule have defined intervening decisions inclusively as all subsequent decisions of \"that state's courts,” a term which seems to include trial and intermediate appellate courts. Even Koch v. Koch Industries, Inc., 203 F.3d 1202, 1231 (10th Cir.2000), the primary authority upon which Wankier v. Crown Equipment Corp. relies, uses the more inclusive definT tion. In fact, Wankier v. Crown Equipment Corp. quotes its relevant passage: In the absence of intervening Utah authority indicating that a plaintiff is not required to prove a safer, feasible alternative design, we are bound to follow the rule of Allen [v. Minnstar, Inc., 8 F.3d 1470 (10th Cir.1993), a Tenth Circuit case interpreting an issue of Utah law], as was the district court. \"Following the doctrine of stare de-cisis, one panel of this court must follow a prior panel's interpretation of state law, absent a supervening declaration to the contrary by that state's courts or an intervening change in the state's law.” Koch v. Koch Indus., Inc., 203 F.3d at 1231. Wankier v. Crown Equip. Corp., 353 F.3d at 867. Whether the decision to limit the intervening authority a district court can consider was intentional or not, the Tenth Circuit has picked it up and run with it. In Kokins v. Teleflex, Inc., the Tenth Circuit, quoting Wankier v. Crown Equipment Corp., refused to consider an opinion from the Colorado Court of Appeals holding directly the opposite of an earlier Tenth Circuit interpretation of Colorado law. See Kokins v. Teleflex, Inc., 621 F.3d 1290, 1297 (10th Cir.2010)" }, { "docid": "2351858", "title": "", "text": "test inappropriate.” Id. In light of Montag, however, we interpret Colorado law on this question as follows: where a case is defined primarily by technical and scientific information, the court must use only the risk-benefit test; it may not use the consumer expectation test, and it may not use both tests together. See Montag, 75 F.3d at 1419. Appellants seem to acknowledge that we closed the door to their argument in Montag when we held that “claims involving primarily technical and scientific information require use of a risk-benefit test rather than a consumer expectations test.” Id. (emphasis added). But Appellants would distinguish or ignore this precedent, arguing that the “suggestion that Montag somehow ties this Court’s hands and prevents it from considering the analysis in Biosera ... is flawed.” Aplt. Reply Br. at 6 n.2. To the contrary, it is Appellants’ argument that is flawed; Montag is controlling law. Appellants are correct to note, see id., that “[t]he decision of an intermediate appellate state court is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1077 (10th Cir.2007) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940)) (internal quotation marks omitted). But, as we stated above, “when a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state’s highest court has resolved the issue.” Wankier, 353 F.3d at 866 (emphasis added). Biosera came after Montag; however, the Colorado Court of Appeals decided Biosera, so it is not an “intervening decision of the state’s highest court.” Id. (emphasis added). And Colorado’s highest court, the Colorado Supreme Court, has not offered any intervening guidance — through interpretation of Camacho or otherwise — indicating that a trial court is authorized to instruct" }, { "docid": "1490143", "title": "", "text": "a national bank) to many (Congress may set quotas on wheat-growing for personal consumption), expanding outward from the general (states must grant criminal jury trials) to the specific (the jury need not be twelve people, nor must it be unanimous)—federal cases interpreting state law often become stale. New state court cases—even when not directly rebuking the federal court’s statement of law—alter the common-law legal landscape with their dicta, their insinuations, and their tone. The Supreme Court, which picks its cases sparingly and for maximum effect, almost never grants certiorari to resolve issues of state law. The Court’s views on Erie, of course, mean little if the Tenth Circuit does not agree. In Wankier v. Crown Equipment Corp., the Tenth Circuit said that, [wjhere no controlling state decision exists, the federal court must attempt to predict what the state’s highest court would do. In performing this ventriloquial function, however, the federal court is bound by ordinary principles of stare decisis. Thus, when a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state’s highest court has resolved the issue. Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir. 2003)(McConnell, J.). From this passage, it seems clear the Tenth Circuit only permits a district court to deviate from its view of state law on the basis of a subsequent case \"of the state's highest court.” See The American Heritage Dictionary of the English Language 1402 (William Morris ed., New College ed. 1976)(defining \"unless” as \"[ejxcept on the condition that; except under the circumstances that”). A more aggressive reading of the passage—namely the requirement that the intervening case ”resolv[e] the issue\"—might additionally compel the determination that any intervening case law must definitively and directly contradict the Tenth Circuit interpretation in order to be considered “intervening.” It is difficult to know whether Judge McConnell’s limitation of \"intervening decision” to cases from the highest state court was an oversight or intentional. Most of the Tenth Circuit’s previous formulations" }, { "docid": "7443994", "title": "", "text": "defendants’ second argument. In so doing, the court cited interpretations of the WRSA by the Wyoming Supreme Court in Halpern v. Wheeldon, 890 P.2d 562 (Wyo.1995) and by this court in Cooperman v. David, 214 F.3d 1162 (10th Cir.2000). In addition, the district court considered the testimony of the plaintiffs expert witness and found that nothing in her testimony, “suggests that a horse bolting as it nears a corral is not an inherent risk of horseback riding.” Aplt’s App. doc. 7 at 129 (Order, filed February 16, 2001). Thus, it reasoned that under the WRSA the defendants owed the plaintiff no duty. Accordingly, the district court granted the defendants’ motion for summary judgment. Daya now appeals the district court’s grant of that motion. II. Discussion a. Standard of Review We review the grant of summary judgment by the district court de novo. See Simms, 165 F.3d at 1326. In so doing, we apply the same legal principles as used by the district court. See id. Specifically, a grant of summary judgment requires that there be no factual questions which might affect the outcome of the suit under existing law. See Chickasaw Nation v. United States, 208 F.3d 871, 874-74 (10th Cir.2000); Fed.R.Civ.P. 56(c). Although a mere factual dispute need not preclude summary judgment, genuine issues of material fact “will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “As to materiality, the substantive law will identify which facts are material.” Id. Further, when applying this standard, we “view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Simms, 165 F.3d at 1326. Because this is a diversity case, we apply the substantive law of Wyoming, the forum state. See Wood v. Eli Lilly & Co., 38 F.3d 510, 513 (10th Cir.1994) (“[W]e must apply the most recent statement of state law by the state’s highest court.”). In a diversity action, “[w]here no state cases exist on a point, we turn to other state court decisions, federal decisions, and the" }, { "docid": "1490144", "title": "", "text": "is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state’s highest court has resolved the issue. Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir. 2003)(McConnell, J.). From this passage, it seems clear the Tenth Circuit only permits a district court to deviate from its view of state law on the basis of a subsequent case \"of the state's highest court.” See The American Heritage Dictionary of the English Language 1402 (William Morris ed., New College ed. 1976)(defining \"unless” as \"[ejxcept on the condition that; except under the circumstances that”). A more aggressive reading of the passage—namely the requirement that the intervening case ”resolv[e] the issue\"—might additionally compel the determination that any intervening case law must definitively and directly contradict the Tenth Circuit interpretation in order to be considered “intervening.” It is difficult to know whether Judge McConnell’s limitation of \"intervening decision” to cases from the highest state court was an oversight or intentional. Most of the Tenth Circuit’s previous formulations of this rule have defined intervening decisions inclusively as all subsequent decisions of \"that state's courts,” a term which seems to include trial and intermediate appellate courts. Even Koch v. Koch Industries, Inc., 203 F.3d 1202, 1231 (10th Cir. 2000), the primary authority upon which Wankier v. Crown Equipment Corp. relies, uses the more inclusive definition. In fact, Wankier v. Crown Equipment Corp, quotes its relevant passage: In the absence of intervening Utah authority indicating that a plaintiff is not required to prove a safer, feasible alternative design, we are bound to follow the rule of Allen [v. Minnstar, Inc., 8 F.3d 1470 (10th Cir. 1993), a Tenth Circuit case interpreting an issue of Utah law], as was the district court. \"Following the doctrine of stare decisis, one panel of this court must follow a prior panel’s interpretation of state law, absent a supervening declaration to the contrary by that state’s courts or an intervening change in the state’s law.” Koch v. Koch Indus., Inc., 203 F.3d at 1231. Wankier v. Crown Equip. Corp., 353" }, { "docid": "2351859", "title": "", "text": "to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1077 (10th Cir.2007) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940)) (internal quotation marks omitted). But, as we stated above, “when a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state’s highest court has resolved the issue.” Wankier, 353 F.3d at 866 (emphasis added). Biosera came after Montag; however, the Colorado Court of Appeals decided Biosera, so it is not an “intervening decision of the state’s highest court.” Id. (emphasis added). And Colorado’s highest court, the Colorado Supreme Court, has not offered any intervening guidance — through interpretation of Camacho or otherwise — indicating that a trial court is authorized to instruct the jury in products liability cases that are defined primarily by technical and scientific information regarding the consumer expectation test, in addition to the risk-benefit test. Thus, we appropriately apply Montag here. Consequently, we conclude that the district court committed no legal error when it held that it was required to instruct the jury on only the risk-benefit test. b. “Primarily” Technical and Scientific Information Appellants also contend that the district court erred in instructing the jury concerning the risk-benefit test in any event because the case does not involve primarily technical and scientific information. In that regard, Appellants assert: “Although the case does involve some technical and scientific information, an ordinary person can form reasonable expectations regarding the dangerous risks posed by the cable and the efficacy of alternative designs.” Aplt. Reply Br. at 11 (emphasis added); see also id. at 7 (“Plaintiffs have never argued that this case does not involve some technical and scientific information.” (emphasis added)). We discern no error. To assess this argument we must look to Colorado cases to" }, { "docid": "2351850", "title": "", "text": "Appellants first argue that the district court erred when it refused to instruct the jury on Colorado’s consumer expectation test. We detect no error in the instruction given by the district court. 1. Standard of Review “We review the district court’s decision about whether to give a particular instruction for abuse of discretion.” Martinez v. Caterpillar, Inc., 572 F.3d 1129, 1132 (10th Cir.2009). “We review the trial court’s conclusions on legal issues de novo, however, and need not defer to its decisions on questions of law.” City of Wich ita v. U.S. Gypsum Co., 72 F.3d 1491, 1495 (10th Cir.1996). In a diversity case like this one, the substance of jury instructions is a matter of state law. City of Wichita, 72 F.3d at 1494-95; see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 77-80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In such a case, our task is “not to reach [our] own judgment regarding the substance of the common law, but simply to ascertain and apply the state law.” Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.2003) (quoting Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944)) (internal quotation marks omitted). To properly discern the content of state law, we “must defer to the most recent decisions of the state’s highest court.” Id. Of course, by the principles of stare decisis, we also are bound by our own prior interpretations of state law. “[W]hen a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state’s highest court has resolved the issue.” Id. (emphasis added). 2. Legal Background Appellants argue that the district court misapplied Colorado law when it refused to instruct the jury on both the consumer expectation test and the risk-benefit test. To grapple with this contention, we must discern the import of Colorado law. The guiding case for us is Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240 (Colo.1987). The plaintiff" }, { "docid": "8638560", "title": "", "text": "to the contrary by that state's courts or an intervening change in the state’s law.” Koch [v. Koch Indus., Inc.], 203 F.3d at 1231. Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.2003)(McConnell, J.)(emphasis added). In the first quoted paragraph, Judge McConnell defines \"intervening decision” to include only decisions from the state supreme court. See The American Heritage Dictionary of the English Language 1402 (William Morris ed., New College ed,1976)(defining \"unless” as ”[e]x-cept on the condition that; except under the circumstances that”). It seems likely that this limitation was accidental. Wankier v. Crown Equipment Corp., itself, involved a situation where no intervening state authority of any kind existed; it was not a case where Judge McConnell chose to ignore an intervening state intermediate appellate-court decision because it did not come from the state supreme court. Moreover, the fundamental Erie inquiry does ask what the state’s highest court, specifically, would do—it would be easy to conflate limitations on the core inquiry with limitations on the indicia to which a court may look in answering that core inquiry. If Wankier v. Crown Equipment Corp. were the Tenth Circuit’s final word on the subject, the Court would be inclined to continue using the inclusive Koch v. Koch Industries, Inc. definition—which, after all, Judge McConnell quoted without alteration later on in his opinion—rather than Judge McConnell’s apparent one-time slip-up. For better or for worse, however, the Tenth Circuit picked up Judge McConnell’s restrictive definition and ran with it in the third and final case in the three-case string, Kokins v. Teleflex, Inc., 621 F.3d 1290 (10th Cir.2010) (Holmes, J.). In that case, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, applied a Tenth Circuit interpretation of Colorado law even though there was a more-recent interpretation from the Colorado Court of Appeals that came to the opposite conclusion. See Kokins v. Teleflex, Inc., 621 F.3d at 1297. Judge Holmes zoomed straight in on Judge McConnell’s restrictive language, even adding italics for emphasis: “[Tlhe Colorado Court of Appeals decided Biosera[, Inc. v. Forma Scientific, Inc., 941 P.2d 284 (Colo.Ct.App.1996)]," }, { "docid": "20198487", "title": "", "text": "685, 689 (6th Cir.1985). Without taking a case en banc, a “panel cannot” reconsider a prior published case that interpreted state law, “absent an indication by the [state] courts that they would have decided [the prior case] differently.” Blaine Constr. Corp. v. Ins. Co. of N. Am., 171 F.3d 343, 350 (6th Cir.1999). Or, as we recently stated in a diversity case, “[w]e are bound by [a prior published case that interpreted Ohio law] unless Ohio law has measurably changed in the meantime.” Big Lots Stores, Inc. v. Luv N’ Care, Ltd., 302 Fed.Appx. 423, 427 (6th Cir.2008). The Tenth Circuit has explained: Where no controlling state decision exists, the federal court must attempt to predict what the state’s highest court would do. In performing this ventriloquial function, however, the federal court is bound by ordinary principles of stare decisis. Thus, when a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state’s highest court has resolved the issue. Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.2003). As no Ohio court has suggested that Andrews misapplied Ohio law or reached a contrary holding, Andrews’s holding that laches, estoppel, and waiver do not apply to expressly granted easements controls this case. See Andrews, 544 F.3d at 630-31. That conclusion is sufficient to resolve this case. Moreover, we decline to exercise our discretion to certify questions of state law to the Ohio Supreme Court. First, no party has requested certification at any stage of this litigation. Second, certification is not warranted because it would arguably be inconsistent with the Andrews court’s determination not to seek such a certification sua sponte. Third, available evidence does not suggest that the Ohio Supreme Court is likely to disagree with Andrews’s interpretation of Ohio law. At the parties’ request, we consider the district court’s purported nunc pro tunc order as a confirmation that Columbia has agreed to the dismissal of its counterclaims. Because the order appealed from properly" }, { "docid": "23394443", "title": "", "text": "a suit for breach of contract and a suit for specific performance, which seek two remedies for the same substantive wrong, a breach of contract). If the legislature has determined that three years is sufficient time to sue for a breach of fiduciary duty, that determination could be undermined by permitting less timely claims for such breach when only equitable remedies are sought. Third, even if the statute is not controlling, the Colorado law that would then apply still gives great weight to the statutory period. A recent decision of the Colorado Court of Appeals stated the following rule: “Absent extraordinary circumstances, ... a court ‘ “will usually grant or withhold relief in analogy to the statute of limitations relating to actions at law of like character.” ’ ” Interbank, 12 P.3d at 1230 (quoting Brooks v. Bank of Boulder, 911 F.Supp. 470, 477 (D.Colo.1996) (quoting Shell v. Strong, 151 F.2d 909, 911 (10th Cir.1945)). To be sure, as Grynberg argues, we are not bound by decisions of state intermediate appellate courts when we apply state law in a diversity case; rather, we are to follow decisions of the state’s highest court, or, when none is in point, predict how it would rule on the issue. See Pompa v. Am. Family Mut. Ins. Co., 520 F.3d 1139, 1142 (10th Cir.2008). But Interbank is not contrary to any Colorado Supreme Court decision, and we see no reason to believe that the state supreme court would adopt a rule more favorable to Grynberg than the Interbank rule. See Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1077 (10th Cir.2007) (we will not disregard an intermediate state court’s decision unless we are “convinced by other persuasive data that the highest court of the state would decide otherwise.”). The Interbank rule is in accord with a “modern view” that in litigious times, certainty is a virtue. Rather than making an individualized assessment of the laches factors in each case, a court can rely on a precise statute of limitations for analogous claims, although — after all, we are dealing with equitable" }, { "docid": "23394444", "title": "", "text": "state law in a diversity case; rather, we are to follow decisions of the state’s highest court, or, when none is in point, predict how it would rule on the issue. See Pompa v. Am. Family Mut. Ins. Co., 520 F.3d 1139, 1142 (10th Cir.2008). But Interbank is not contrary to any Colorado Supreme Court decision, and we see no reason to believe that the state supreme court would adopt a rule more favorable to Grynberg than the Interbank rule. See Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1077 (10th Cir.2007) (we will not disregard an intermediate state court’s decision unless we are “convinced by other persuasive data that the highest court of the state would decide otherwise.”). The Interbank rule is in accord with a “modern view” that in litigious times, certainty is a virtue. Rather than making an individualized assessment of the laches factors in each case, a court can rely on a precise statute of limitations for analogous claims, although — after all, we are dealing with equitable relief — extraordinary circumstances may provide an avenue of escape. See generally, Gail L. Heriot, A Study in the Choice of Form: Statutes of Limitation and the Doctrine of Laches, 1992 BYU L.Rev. 917, 952-54 (1992). Thus, if Grynberg cannot survive application of the Interbank rule, his claims would surely be doomed under Colorado Law. The first step under Interbank is to determine whether the claim would be untimely under the statute of limitations for analogous claims — here, the three-year period under Colo.Rev.Stat. § 13-80-101(l)(f). We have already made that determination. As we concluded in our discussion on the breach-of-fiduciary-duty claims, that limitations period ran before Grynberg filed suit. Under Interbank, our next step would ordinarily be to consider whether Grynberg has proved that extraordinary circumstances justify the tardy filing of his lawsuits. But Grynberg has failed to allege extraordinary circumstances. We therefore rule that his unjust-enrichment claims are barred as untimely. We reject Grynberg’s argument that we must apply the six-year statute-of-limitations period set forth in Colo.Rev.Stat. § 13-80-103.5(l)(a). The argument was raised" }, { "docid": "14156697", "title": "", "text": "law does not allow tort actions premised on an insurer’s breach of its contractual duty to defend. The court also rejected Mr. Wade’s breach of contract and breach of implied covenant of good faith claims because Mr. Wade is not the real party in interest, as he assigned those claims to Mr. Nguyen. Both Mr. Nguyen and Mr. Wade appeal from the district court’s order. II. The Bad Faith Claim Against EMCASCO Brought By Assignee Nguyen A. Insurance Bad Faith Claims Under Kansas Law In cases arising under diversity jurisdiction, the federal court’s task is not to reach its own judgment regarding the substance of the common law, but simply to “ ‘ascertain and apply the state law.’ ” Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.2003) (quoting Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944)); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The federal court must follow the most recent decisions of the state’s highest court. Wankier, 353 F.3d at 866. “Where no controlling state decision exists, the federal court must attempt to predict what the state’s highest court would do.” Id. In doing so, it may seek guidance from decisions rendered by lower courts in the relevant state, Progressive Cas. Ins. Co. v. Engemann, 268 F.3d 985, 988 (10th Cir.2001), appellate decisions in other states with similar legal principles, United States v. DeGasso, 369 F.3d 1139, 1148 (10th Cir.2004), district court decisions interpreting the law of the state in question, Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1100, 1104-05 (10th Cir.2002), and “the general weight and trend of authority” in the relevant area of law, MidAmerica Constr. Mgmt., Inc. v. MasTec N. Am., Inc., 436 F.3d 1257, 1262 (10th Cir.2006) (internal quotation marks omitted). Ultimately, however, the Court’s task is to predict what the state supreme court would do. Our review of the district court’s interpretation of state law is de novo. Roberts v. Printup, 422 F.3d 1211, 1215 (10th Cir.2005). No party to this case has" }, { "docid": "19002105", "title": "", "text": "standing because Colorado law, properly interpreted, did not entitle Plaintiff to the damages he claimed. See id. Rather, the court should have “taken as correct for purposes of standing” Plaintiffs “non-frivolous contention” regarding the interpretation of Brennan. Info. Handling Servs., Inc. v. Defense Automated Printing Servs., 338 F.3d 1024, 1030 (D.C.Cir.2003). Taking his contention as correct for purposes of standing, we conclude that Plaintiff “alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (internal quotation marks omitted). Although we hold that Plaintiff had standing, we conclude that his claim fails on the merits. This court recently held in Stickley v. State Farm Mutual Automobile Insurance Co., 505 F.3d 1070, 1080 (10th Cir.2007), that Brennan does not entitle the insured to “reformation of the entire policy to provide enhanced PIP benefits for all categories of people.” Rather, “when an insurance policy is found to violate [the Colorado Auto Accident Reparations Act], only the defective portion of the policy is reformed to comply with [the statute]. It does not wipe the slate clean and give the insured the fullest amount of benefits available for every category possible.” Id. at 1080. Based on Stickley, we conclude that reformation of Plaintiffs policy would not entitle him to enhanced PIP benefits for his own injuries as the named insured because the alleged defect in Defendant’s offer of coverage concerned only passengers and pedestrians. See Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.2003) (“[W]hen a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on ... subsequent panels of this Court, unless an intervening decision of the state’s highest court has resolved the issue.”); see also Campbell v. Allstate Ins. Co., 2007 WL 3046304, at *6-7 (10th Cir. Oct.18, 2007) (stating in dicta that the named insured could not obtain PIP coverage for injuries she sustained in an automobile accident because she only alleged that the policy excluded enhanced PIP coverage for pedestrians" }, { "docid": "1490146", "title": "", "text": "F.3d at 867. Whether the decision to limit the intervening authority a district court can consider was intentional or not, the Tenth Circuit has picked it up and run with it. In Kokins v. Teleflex, Inc., the Tenth Circuit, quoting Wankier v. Crown Equipment Corp., refused to consider an opinion from the Court of Appeals of Colorado holding directly the opposite of an earlier Tenth Circuit interpretation of Colorado law. See Kokins v. Teleflex, Inc., 621 F.3d 1290, 1297 (10th Cir. 2010)(Holmes, J.)(\"[T]he Colorado Court of Appeals decided Biosera[, Inc. v. Forma Scientific, Inc., 941 P.2d 284 (Colo. Ct. App. 1998)], so it is not an ‘intervening decision of the state’s highest court.' ”)(emphasis in original)(quoting Wankier v. Crown Equip. Corp., 353 F.3d at 866). The Tenth Circuit has set forth a stringent restriction on its district courts’ ability to independently administer the Erie doctrine. More importantly, the Tenth Circuit’s view may be at tension with the above-quoted Supreme Court precedent, as well as its own prior case law. Moore's lists the Tenth Circuit as having been, at one time, a \"court[ that] hold[s] that a prior federal appellate decision [interpreting state law] is persuasive.” Moore's § 124.22[4] (citing State Farm Mut. Auto. Ins. Co. v. Travelers Indem. Co., 433 F.2d 311, 312 (10th Cir. 1970)). Still,, the Court is bound to abide by the Tenth Circuit's interpretation of Erie. This scheme may be inefficient, because the plaintiffs may appeal, after trial, the Court's ruling on the marketable , condition rule. The Tenth Circuit may certify the question to the Supreme Court of New Mexico, and the Tenth Circuit may then have to reverse the Court after a full trial on the merits. 9. The 2004 amendments to Uniform Jury Instruction 13-305 eliminated the word ‘'proximate\" within the instruction. See Use Note, N.M. Rul. Amend. Civ. UJI 13-305. The drafters added, however, that the change was \"intended to make the instruction clearer to the jury and do[es] not signal any change in the law of proximate cause.\" Editor’s Notes, N.M. Rul. Amend. Civ. UJI 13-305. . The \"rule of unanimity,”" }, { "docid": "1490145", "title": "", "text": "of this rule have defined intervening decisions inclusively as all subsequent decisions of \"that state's courts,” a term which seems to include trial and intermediate appellate courts. Even Koch v. Koch Industries, Inc., 203 F.3d 1202, 1231 (10th Cir. 2000), the primary authority upon which Wankier v. Crown Equipment Corp. relies, uses the more inclusive definition. In fact, Wankier v. Crown Equipment Corp, quotes its relevant passage: In the absence of intervening Utah authority indicating that a plaintiff is not required to prove a safer, feasible alternative design, we are bound to follow the rule of Allen [v. Minnstar, Inc., 8 F.3d 1470 (10th Cir. 1993), a Tenth Circuit case interpreting an issue of Utah law], as was the district court. \"Following the doctrine of stare decisis, one panel of this court must follow a prior panel’s interpretation of state law, absent a supervening declaration to the contrary by that state’s courts or an intervening change in the state’s law.” Koch v. Koch Indus., Inc., 203 F.3d at 1231. Wankier v. Crown Equip. Corp., 353 F.3d at 867. Whether the decision to limit the intervening authority a district court can consider was intentional or not, the Tenth Circuit has picked it up and run with it. In Kokins v. Teleflex, Inc., the Tenth Circuit, quoting Wankier v. Crown Equipment Corp., refused to consider an opinion from the Court of Appeals of Colorado holding directly the opposite of an earlier Tenth Circuit interpretation of Colorado law. See Kokins v. Teleflex, Inc., 621 F.3d 1290, 1297 (10th Cir. 2010)(Holmes, J.)(\"[T]he Colorado Court of Appeals decided Biosera[, Inc. v. Forma Scientific, Inc., 941 P.2d 284 (Colo. Ct. App. 1998)], so it is not an ‘intervening decision of the state’s highest court.' ”)(emphasis in original)(quoting Wankier v. Crown Equip. Corp., 353 F.3d at 866). The Tenth Circuit has set forth a stringent restriction on its district courts’ ability to independently administer the Erie doctrine. More importantly, the Tenth Circuit’s view may be at tension with the above-quoted Supreme Court precedent, as well as its own prior case law. Moore's lists the Tenth Circuit as" }, { "docid": "1910223", "title": "", "text": "Anderson Living Trust v. ConocoPhillips Co., 952 F.Supp.2d 979, 1033 (D.N.M.2013) (Browning, J.)). The Court’s views' on Erie, of course, mean little if the Tenth Circuit does not agree. In Wankier v. Crown Equipment Corp., the Tenth Circuit said that, [wjhere no controlling state decision exists, the federal court must attempt to predict what the state’s highest court would do. In performing this ventriloquia! function, however, the federal court is bound by ordinary principles of stare decisis. Thus, when a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state’s highest court has resolved the issue. Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.2003) (McConnell, J.). From this passage, it seems clear the Tenth Circuit only permits a district court to deviate from its view of state law on the basis of a subsequent case \"of the state’s highest court.” See The American Heritage Dictionary of the English Language 1402 (William Morris ed., New College ed.l976)(defining \"unless” as \"[ejxcept on the condition that; except under the circumstances that”). A more aggressive reading of the passage — namely the requirement that the intervening case \"resolv[e] the issue” — might additionally compel the determination that any intervening case law must definitively and directly contradict the Tenth Circuit interpretation in order to be considered \"intervening.” It is difficult, to know whether Judge McConnell’s limitation of \"intervening decision” to cases from the highest state court was an oversight or intentional. Most of the Tenth Circuit's previous formulations of this rule have defined intervening decisions inclusively as all subsequent decisions of \"that state's courts,” a term which seems to include trial and intermediate appellate courts. Even Koch v. Koch Industries, Inc., 203 F.3d 1202, 1231 (10th Cir.2000), the primary authority upon which Wankier v. Crown Equipment Corp. relies, uses the more inclusive definT tion. In fact, Wankier v. Crown Equipment Corp. quotes its relevant passage: In the absence of intervening Utah authority indicating that a plaintiff is" }, { "docid": "1910225", "title": "", "text": "not required to prove a safer, feasible alternative design, we are bound to follow the rule of Allen [v. Minnstar, Inc., 8 F.3d 1470 (10th Cir.1993), a Tenth Circuit case interpreting an issue of Utah law], as was the district court. \"Following the doctrine of stare de-cisis, one panel of this court must follow a prior panel's interpretation of state law, absent a supervening declaration to the contrary by that state's courts or an intervening change in the state's law.” Koch v. Koch Indus., Inc., 203 F.3d at 1231. Wankier v. Crown Equip. Corp., 353 F.3d at 867. Whether the decision to limit the intervening authority a district court can consider was intentional or not, the Tenth Circuit has picked it up and run with it. In Kokins v. Teleflex, Inc., the Tenth Circuit, quoting Wankier v. Crown Equipment Corp., refused to consider an opinion from the Colorado Court of Appeals holding directly the opposite of an earlier Tenth Circuit interpretation of Colorado law. See Kokins v. Teleflex, Inc., 621 F.3d 1290, 1297 (10th Cir.2010) (Holmes, J.)(“[T]he Colorado Court of Appeals decided Biosera[, Inc. v. Forma Scientific, Inc., 941 P.2d 284 (Colo.Ct.App.1996) ], so it is not an 'intervening decision of the state’s highest court.’ \" (emphasis in original)(quoting Wankier v. Crown Equip. Corp., 353 F.3d at 866)). The Tenth Circuit has set forth a stringent restriction on its district courts' ability to independently administer the Erie doctrine. More importantly, the Tenth Circuit's view may be at tension with the above-quoted Supreme Court precedent, as well as its own prior case law. Moore’s lists the Tenth Circuit as having been, at one time, a \"court [that] hold[s] that a prior federal appellate decision [interpreting state law] is persuasive.” Moore’s § 124.22[4] (citing State Farm Mut. Auto. Ins. Co. v. Travelers Indem. Co., 433 F.2d 311, 312 (10th Cir.1970)). Still, the Court is bound to abide by the Tenth Circuit's interpretation of Erie. This scheme may be inefficient, because the plaintiffs may appeal, after trial, the Court's ruling on the marketable condition rule. The Tenth Circuit may certify the question to" }, { "docid": "8638561", "title": "", "text": "that core inquiry. If Wankier v. Crown Equipment Corp. were the Tenth Circuit’s final word on the subject, the Court would be inclined to continue using the inclusive Koch v. Koch Industries, Inc. definition—which, after all, Judge McConnell quoted without alteration later on in his opinion—rather than Judge McConnell’s apparent one-time slip-up. For better or for worse, however, the Tenth Circuit picked up Judge McConnell’s restrictive definition and ran with it in the third and final case in the three-case string, Kokins v. Teleflex, Inc., 621 F.3d 1290 (10th Cir.2010) (Holmes, J.). In that case, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, applied a Tenth Circuit interpretation of Colorado law even though there was a more-recent interpretation from the Colorado Court of Appeals that came to the opposite conclusion. See Kokins v. Teleflex, Inc., 621 F.3d at 1297. Judge Holmes zoomed straight in on Judge McConnell’s restrictive language, even adding italics for emphasis: “[Tlhe Colorado Court of Appeals decided Biosera[, Inc. v. Forma Scientific, Inc., 941 P.2d 284 (Colo.Ct.App.1996)], so it is not an 'intervening decision of the state’s highest court.\"' Kokins v. Teleflex, Inc., 621 F.3d at 1297 (emphasis in original). The Court cannot ignore that statement. While the Court would feel comfortable taking a loose reading of Wankier v. Crown Equipment Corp., it cannot defy the Tenth Circuit’s express holding in Kokins v. Teleflex, Inc., which is that federal district courts may only consider cases from a state supreme courts to be \"intervening authority” when balancing Erie and vertical stare decisis. The Tenth Circuit has set forth a stringent restriction on its district courts’ ability to independently administer the Erie doctrine. More importantly, the Tenth Circuit's view may be at tension with the above-quoted Supreme Court precedent, as well as its own prior case law. Moore's lists the Tenth Circuit as having been, at one time, a ”court[that] hold[s] that a prior federal appellate decision [interpreting state law] is persuasive.” Moore's § 124.22[4] (citing State Farm Mut. Auto. Ins. Co, v. Travelers Indem. Co., 433 F.2d 311, 312 (10th Cir.1970)). Still, the" }, { "docid": "19002106", "title": "", "text": "the defective portion of the policy is reformed to comply with [the statute]. It does not wipe the slate clean and give the insured the fullest amount of benefits available for every category possible.” Id. at 1080. Based on Stickley, we conclude that reformation of Plaintiffs policy would not entitle him to enhanced PIP benefits for his own injuries as the named insured because the alleged defect in Defendant’s offer of coverage concerned only passengers and pedestrians. See Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.2003) (“[W]hen a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on ... subsequent panels of this Court, unless an intervening decision of the state’s highest court has resolved the issue.”); see also Campbell v. Allstate Ins. Co., 2007 WL 3046304, at *6-7 (10th Cir. Oct.18, 2007) (stating in dicta that the named insured could not obtain PIP coverage for injuries she sustained in an automobile accident because she only alleged that the policy excluded enhanced PIP coverage for pedestrians and passengers). We therefore hold that Plaintiff is not entitled to any relief on his claim for reformation. Plaintiff does not challenge the district court’s conclusion that his other claims all depend upon his claim for reformation. Because we conclude that Plaintiff is not entitled to any relief on that claim, we AFFIRM the district court’s grant of summary judgment in favor of Defendant. . Plaintiff is no longer insured by Defendant. . Although Defendant argues that Plaintiff would not have accepted compliant PIP coverage in any event, Plaintiff points out that the Colorado Court of Appeals has held that reformation cannot be avoided by evidence suggesting that the insured would not have purchased compliant coverage had it been offered. Thompson v. Budget Rent-A-Car Sys., Inc., 940 P.2d 987, 990 (Colo.Ct.App.1996); see also Fincher v. Prudential Prop. & Cas. Ins. Co., 76 Fed.Appx. 917, 921-22 (10th Cir.2003) (refusing to consider the defendant’s argument that the insured drivers would have rejected compliant enhanced PIP coverage because they were on a fixed income and declined other offers" }, { "docid": "8638559", "title": "", "text": "attempt to predict what the state’s highest court would do. In performing this ventriloquial function, however, the federal court is bound by ordinary principles of stare decisis. Thus, when a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state's highest court has resolved the issue. [Blackhawk-Cent. City Sanitation Dist. v. Am. Guar., 214 F.3d 1183, 1194 n. 4 (10th Cir. 2000)]; Koch v. Koch Indus., Inc., 203 F.3d 1202, 1231 (10th Cir.2000). In the absence of intervening Utah authority indicating that a plaintiff is not required to prove a safer, feasible alternative design, we are bound to follow the rule of Allen [v. Minns-tar, Inc., 8 F.3d 1470 (10th Cir.1993), a Tenth Circuit case interpreting an issue of Utah law], as was the district court. “Following the doctrine of stare decisis, one panel of this court must follow a prior panel’s interpretation of state law, absent a supervening declaration to the contrary by that state's courts or an intervening change in the state’s law.” Koch [v. Koch Indus., Inc.], 203 F.3d at 1231. Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.2003)(McConnell, J.)(emphasis added). In the first quoted paragraph, Judge McConnell defines \"intervening decision” to include only decisions from the state supreme court. See The American Heritage Dictionary of the English Language 1402 (William Morris ed., New College ed,1976)(defining \"unless” as ”[e]x-cept on the condition that; except under the circumstances that”). It seems likely that this limitation was accidental. Wankier v. Crown Equipment Corp., itself, involved a situation where no intervening state authority of any kind existed; it was not a case where Judge McConnell chose to ignore an intervening state intermediate appellate-court decision because it did not come from the state supreme court. Moreover, the fundamental Erie inquiry does ask what the state’s highest court, specifically, would do—it would be easy to conflate limitations on the core inquiry with limitations on the indicia to which a court may look in answering" } ]

[ { "docid": "22197951", "title": "", "text": "acknowledged the- error but upheld her conviction, reasoning: “[R]eversal is not required because ‘[e]rror cannot be predicated upon an isolated phrase, sentence or excerpt from the instructions since the correctness of an instruction is to be determined in its relation to the other instructions and in light of the instructions as a whole.’ Here, when all of the jury instructions on voluntary manslaughter and imperfect self-defense, are considered in their entirety, it is not reasonably likely that the jury would have misunderstood the requirements of the imperfect self-defense component of voluntary manslaughter. On the contrary, these instructions repeatedly informed the jury that if the defendant had an honest (or actual) but unreasonable belief in the need to act in self-defense, then the offense would be manslaughter and the defendant could not be convicted of murder. Furthermore, in arguing to the jury, the prosecutor set forth the appropriate standard, stating ‘[i]f you believe it is an imperfect self-defense, that she actually believed but that a reasonable person would not believe in the necessity for self-defense, that lessens the crime to what is called, “voluntary manslaughter.’”” App. to Pet. for Cert. 33-34 (citations omitted). Respondent then sought federal habeas relief. The District Court denied her petition, but the Ninth Circuit reversed. 344 F. 3d 988 (2003). We now grant the State’s petition for a writ of certiorari and respondent’s motion for leave to proceed in forma pauperis, and reverse. II A federal court may grant habeas relief to a state prisoner if a state court’s adjudication of his constitutional claim was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. § 2254(d)(1). “Where, as here, the state court’s application of governing federal law is challenged, it must be~shown to be not only erroneous, but objectively unreasonable.” Yarborough v. Gentry, 540 U. S. 1, 5 (2003) (per curiam); see Williams v. Taylor, 529 U. S. 362, 409 (2000). In a criminal trial, the State must prove every element of the offense, and a jury instruction violates" } ]

[ { "docid": "1800786", "title": "", "text": "have stated that the “[f]ailure of a state court to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding.” James v. Reese, 546 F.2d 325, 327 (9th Cir.1976) (per curiam). Due process, however, requires that a lesser included offense instruction to a capital offense be given when the evidence warrants such an instruction. See Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367 (1982); Beck v. Alabama, 447 U.S. 625, 637-38,100 S.Ct. 2382, 2389-90, 65 L.Ed.2d 392 (1980) (Beck). Woratzeck first contends that he was entitled to a lesser included offense jury instruction on second-degree murder. Under Arizona law, however, second-degree murder is not a lesser included offense of felony-murder. See State v. Arias, 131 Ariz. 441, 443-44, 641 P.2d 1285, 1287-88 (1982). The constitutional protection prohibits the state “from withdrawing [the lesser included offense] option from the jury in a capital case.” Beck, 447 U.S. at 638, 100 S.Ct. at 2390. As there was no option to withdraw, Woratzeck was not denied due process by the trial judge’s failure to instruct the jury sua sponte concerning second-degree murder. Woratzeck’s argument that the trial judge erred in failing to instruct the jury concerning theft — which is a lesser included offense of robbery — when robbery served as one of the underlying felonies for the felony-murder conviction, is more persuasive. Cf. United States v. Steams, 707 F.2d 391, 393 (9th Cir.1983) (permitting felony-murder prosecution where defendant had earlier been tried and convicted for lesser included offense related to same transaction, but observing that defendant could not be punished again for the underlying theft if convicted of felony-murder), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 182 (1984). We need not decide this issue, however, because even if the theft instruction should have been given, the trial judge’s failure to do so would not have changed the outcome. The trial judge instructed the jury that to convict Woratzeck of felony-murder, it had to find that he committed or attempted to" }, { "docid": "16566699", "title": "", "text": "CLIFTON, Circuit Judge: Under Arizona law, a conviction for first-degree murder can be based on either or both of two theories: premeditated murder (an intentional, planned killing) or felony murder (a killing that results from the intentional commission by defendant of another felony, but which does not necessarily involve an intent to kill). Michael Evanchyk was tried in Arizona state court, together with other defendants, for multiple crimes in connection with events that resulted in a death. He was acquitted by a jury of first-degree murder and of burglary, but was convicted of second-degree murder and of conspiracy to commit first-degree murder. He petitioned the district court for habeas corpus relief under 28 U.S.C. § 2254, challenging only the conviction for conspiracy to commit first-degree murder. The district court granted his petition conditionally, subject to the State of Arizona’s ability to retry him on that charge. The district court held that under the instructions given to the jury, Evanchyk could have been convicted for, in effect, conspiracy to commit felony murder, which is not a crime under Arizona law. The State appeals, contending that there was no instructional error and that any error was harmless, in any event. Evanchyk cross-appeals, arguing that the district court’s conditional grant, permitting a re-trial, was erroneous on double jeopardy or collateral estoppel grounds, and also that the district court erroneously denied his ineffective assistance of counsel claim. We affirm. In response to certified questions from the district court, the Arizona Supreme Court made clear that, under Arizona law, intent to kill is an essential element of the offense of conspiracy to commit first-degree murder. The instructions given in this case permitted the jury to convict Evanchyk of that offense without requiring a finding of that essential element, an intent to kill. This constitutes a violation of Evanchyk’s federal constitutional right to due process. The circumstances do not permit us to find that the error in this case was harmless, so habeas relief is appropriate. At the same time, because there was substantial evidence to support the State’s allegation of an agreement to kill, with" }, { "docid": "23236643", "title": "", "text": "118 S.Ct. 1895. The Court explained that the crucial distinction between Beck and Hopkins “is the distinction, between a State’s prohibiting instructions on offenses that state law recognizes as lesser included, and a State’s refusing to instruct on offenses that state law does not recognize as lesser included.” Id. at 99 n. 7, 118 S.Ct. 1895. The former is unconstitutional, while the latter is not. Id. In Hopkins, the Court held that Nebraska was not constitutionally required to give an instruction on the non-capital charge of second-degree murder when the defendant was charged with the capital count of felony murder because, under Nebraska law, second-degree murder was not a lesser included offense of felony-murder. Id. at 96-97, 118 S.Ct. 1895. Specifically, the Court noted that under Nebraska law, second-degree murder was not a lesser included offense of felony murder because second-degree murder requires an intent to cause death, whereas felony murder does not. Id. at 95-96, 118 S.Ct. 1895. As a result, the Supreme Court upheld a conviction for felony murder (and the subsequent death penalty that was imposed by a separate three-judge panel) even though the jury at the guilt phase was given no option to find the defendant guilty of a non-capital crime. Id. Hopkins is relevant here. At the time of Anderson’s first trial, similar to the Nebraska law at issue in Hopkins, California law did not require the prosecution to prove that Anderson intended to kill Mrs. Lyman as an element of felony murder. See Anderson, B8 Cal.3d at 61, 210 Cal. Rptr. 777, 694 P.2d 1149; see also People v. Avalos, 98 Cal.App.3d 701, 718, 159 Cal. Rptr. 736 (1979). The law only required proof of the specific intent to commit the underlying felony. Id. Moreover, while there do not appear to be any California eases in existence at the time of Anderson’s trial explicitly stating that there were no lesser-included offenses to felony murder, in deciding not to give such an instruction, the trial court relied on Avalos, see 1RT at 2629, which held that where the prosecution relies solely on felony murder, California" }, { "docid": "19038103", "title": "", "text": "certain to be an adequate state bar. The district court correctly concluded that the government failed to meet its burden and that Townsend’s claims are not procedurally defaulted. We, therefore, address the merits of Townsend’s claims. C. Townsend’s Due Process Rights Townsend claims that he is entitled to habeas relief because the California trial court violated his Fourteenth Amendment due process rights when it instructed the jury on the crime of felony-murder, thus permitting the jury to convict him of second degree murder absent proof of malice aforethought. See Carella v. California, 491 U.S. 263, 265, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (observing that “[t]he Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense.”). We affirm the denial of Townsend’s habeas claim based upon a violation of his due process rights. Federal habeas corpus relief is available to a state prisoner when it is shown that “a state court’s adjudication of his constitutional claim was ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ ” Middleton v. McNeil, 541 U.S. 433, 436, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (quoting 28 U.S.C. § 2254(d)(1)). Here, Townsend challenges “the state court’s application of governing federal law,” and thus he is required to show that this application is “not only erroneous, but objectively unreasonable.” Id. (internal quotation marks and citations omitted). Due process requires that jury instructions in criminal trials give effect to the prosecutor’s burden of proving every element of the crime charged beyond a reasonable doubt. Id. at 437, 124 S.Ct. 1830. “Nonetheless, not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation.” Id. Federal habeas relief is available for jury instruction errors that “so infected the entire trial that the resulting conviction violates due process,” thus rendering the trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385" }, { "docid": "19038110", "title": "", "text": "Unlike the tangential refer ence at issue here, in Suniga, the trial court did instruct the jury on the separate theory of felony-murder. Unlike here, the jury in Suniga was also instructed that an assault with a deadly weapon is a felony that is inherently dangerous to human life. Id. at 666, 668-70. The Suniga court found a due process violation because, by virtue of being instructed on felony murder as well as the felony of assault with a deadly weapon, the jury could have convicted Suniga of murder by inappropriately relying on his commission of the underlying felony and without considering the element of malice. Id. at 669-70. Because Townsend’s jury was not provided with the instructions found objectionable in Suniga, the reasoning and result in that decision do not apply here. Considering the. challenged instruction in the context of all the instructions provided, we conclude that its tangential reference to “felony” and “murder” did not so infect the trial “that the resulting conviction violates due process.” Estelle, 502 U.S. at 72, 112 S.Ct. 475. A review of Townsend’s jury instructions has not shown that “there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” Id. (internal quotation marks and citation omitted). Because the challenged jury instruction did not so infect the entire trial that Townsend’s resulting conviction violated due process, we conclude that the district court did not err when it denied Townsend’s claim for habeas relief. The district court correctly concluded that the California Superior Court’s rejection of Townsend’s due process claim was not contrary to or an unreasonable application of clearly established federal law. D. Ineffective Assistance of Counsel Townsend claims that his trial counsel rendered ineffective assistance because he failed to object to the jury instruction that made the alleged reference to felony murder. The Sixth Amendment guarantees the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on this claim, Townsend must show that his counsel’s performance fell below an objective standard of" }, { "docid": "426207", "title": "", "text": "the more stringent habeas corpus standard. Finally, the record indicates that Suniga did not object to the challenged instruction at the trial court. It is even possible that he participated in requesting the instruction, at least in a general way. He first challenged the instruction on appeal. Nevertheless, the California Court of Appeal considered ' the challenge, as did the district court. The state has never asserted that a procedural default occurred. Thus, we will consider the challenge on its merits. See Panther v. Hames, 991 F.2d 576, 582 (9th Cir.1993) (per curiam). DISCUSSION The prosecution never did rely upon a felony-murder theory in this case. It did not argue that theory to the jury; it relied upon malice to support a conviction. Thus, when the trial court instructed on felony-murder it interjected an issue that had not previously been part of the case. That is not all. The particular felony-murder theory on which the court instructed does not even exist. In California, there cannot be a second degree murder based upon the theory that a death occurred during the perpetration of an assault with a deadly weapon (ADW) upon the victim. While that is a state — not a constitutional-rule, it is based upon considerations of policy-and justice. As the California Supreme Court said in People v. Ireland, 70 Cal.2d 522, 539, 75 Cal.Rptr. 188, 198, 450-P.2d 580, 590 (1969): We have concluded that the utilization of the felony-murder rule in circumstances such as those before us [,ADW,] extends the operation of that rule “beyond any rational function that it is designed to serve.” To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all eases wherein homicide has been committed as a result of a feloneous assault — a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of" }, { "docid": "9436035", "title": "", "text": "case, the court finds that “the evidence was [not] so dispositive of [malice] that [it] can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.” Rose v. Clark, — U.S. at -, 106 S.Ct. at 3109. See, e.g., Franklin, 105 S.Ct. at 1977; Brooks v. Kemp, 762 F.2d at 1391-93; Phillips v. Rose, 690 F.2d at 81. Therefore based on the aforesaid, Bush’s petition for a writ of habeas corpus must be and hereby is GRANTED. Respondents are directed to retry or release petitioner from custody within 90 days of the entry of this order. SO ORDERED. . The issues raised in the petition at bar were not raised on Bush’s appeal of right to the North Carolina Supreme Court. . These assignments of error constitute the issues at bar. . As the Magistrate correctly notes, the trial court instructed the jury on the alternate theories of felony murder and premeditated murder in the first degree. The jury, upon returning its verdict, failed to indicate on which theory it relied in convicting the petitioner. For purposes of its consideration of the case, the North Carolina Supreme Court assumed the jury relied on the theory of premeditation and deliberation. This-presumption, of course, was favorable to Bush, since under felony-murder it would have been unnecessary for the jury to reach any decision on whether the homicide was committed with or without malice. Thus, erroneous instructions on this issue would have been rendered irrelevant and obviously harmless. Like the North Carolina Supreme Court, this court assumes the jury relied on the premeditated and deliberate murder theory. . Petitioner denied making this statement. . Intent to kill is an element of the offense of malice murder in Georgia. . A conclusive presumption completely removes the presumed element from the case once the state proves all the predicate facts giving rise to the presumption. A rebuttable presumption does not remove the element, but nevertheless mandates the jury find the presumed element unless the defendant persuades the jury such a finding is unwarranted. 105 S.Ct. at 1971" }, { "docid": "22589735", "title": "", "text": "[state] court, was correct and the other, the application of the federal law that the [state] court adopted, was erroneous.... ” Id. at 1153-54. III. The Felony-Murder Instruction We first consider Shackleford’s contention that he was denied due process by the trial court’s felony-murder instruction. We conclude that, although the trial court erred in giving the felony-murder instruction, that error was harmless under Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The trial court, after explaining that a willful and deliberate killing is first-degree murder, told the jury, The unlawful killing of a human being whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of torture, is murder of the first degree when the perpetrator had the specific intent to commit such crime. The specific intent to commit torture in the commission or attempted commission of such crime must be proved beyond a reasonable doubt. The crime of murder by torture does not require any proof that the perpetrator intended to kill his victim or any proof that the victim was aware of pain or suffering. There is no question that this instruction was erroneous. Indeed, the State concedes as much. The instruction told the jury that Shackleford could be found guilty of first-degree murder provided he “committed the crime of torture.” But torture was not one of the five felonies enumerated in the 1988 version of California Penal Code section 189 that would have triggered the felony-murder rule. See Cal. Pen.Code § 189 (West 1988).- As a result, a killing that occurred during the infliction of torture was not first-degree murder without a finding of malice. See People v. Dillon, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, 710 (1983); People v. Mattison, 4 Cal.3d 177, 93 Cal.Rptr. 185, 481 P.2d 193, 196 (1970). As the California Supreme Court explained in Mattison, It must be emphasized ... that a Killing by one of the means enumerated in [Penal Code § 189] is not murder of the first degree unless it is first established that it" }, { "docid": "22211145", "title": "", "text": "affirm the district court’s decision to deny the writ on this ground. 3. Lesser-included Offense Instruction (Claim One). Turner asserts error in the trial court’s failure to (1) instruct the jury sua sponte on the offense of theft, a lesser-included offense to the charge of robbery; and (2) provide jury verdict forms regarding theft. During trial, however, Turner did not request a jury instruction or verdict form regarding the offense of theft. The district court found that because “[t]he trial court’s failure to give a theft instruction, as the lesser-included offense of robbery, did not eliminate the jury’s option to find first degree murder without special circumstances, a noncapital offense,” the failure was not error. The jury was instructed on first degree murder based on the alternative theories of premeditated and robbery-felony-murder. The special circumstance finding was an independent finding based on robbery-felony-murder. Thus, the jury could have convicted Turner of first degree premeditated murder, without the special circumstance of robbery, and Turner would have been convicted of a noncapital offense. Because the district court believed that Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and its progeny require only that the jury not be faced with an all-or-nothing, capital conviction- or-acquittal choice, it found no error. In the alternative, the district court, relying on the California Supreme Court, found that even if the failure to give a theft instruction was erroneous under federal law, the error was harmless because it was not prejudicial. As the California Supreme Court observed, the jury demonstrated its belief that Turner was guilty of robbery both in the conviction for Count II and in the special circumstance finding. Turner, 50 Cal.3d at 693, 268 Cal.Rptr. 706, 789 P.2d 887. The California court could not “imagine [the jury] would employ [a] reluctant verdict to support findings of first degree murder and death eligibility under a robbery-murder special circumstance.” Id. Furthermore, “[kjnowing that a murder in the commission of robbery was the sole basis of defendant’s eligibility for the death penalty, they nonetheless actually returned a death verdict.” Id. We agree" }, { "docid": "7010557", "title": "", "text": "against Mannix. Thus Roy’s conviction of first-degree murder of Mannix necessarily reflected a conclusion by the jury that Roy was guilty of felony murder of Mannix in the course of aiding and abetting the robbery of Mannix by McHargue. The jury was given an aiding and abetting instruction which stated that “[a] person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.” This instruction allowed the jury to convict Roy if he provided “knowing aid”-that is, if he knew of McHar-gue’s intention to rob Mannix and took some action that had the effect of furthering the robbery. After Roy’s case was tried, the California Supreme Court held in People v. Beeman, 35 Cal.3d 547,199 Cal.Rptr. 60, 674 P.2d 1318 (1984), that an instruction identical to the one given in Roy’s case was flawed because an aiding and abetting conviction requires proof not merely of “knowing aid” but also that the defendant intended to encourage or facilitate the offense with which the principal was charged. On direct appeal, Roy contended the state trial court erred by failing to instruct the jury on the specific intent element of aiding and abetting identified in Beeman. The California court of appéal concluded error had occurred but was harmless beyond a reasonable doubt. The California Supreme Court denied relief on collateral review, and Roy then filed this federal habeas petition raising the Beeman issue. In denying the petition, the district court held the omission from the instruction of the specific intent requirement was error, but agreed with the state courts that the error was harmless beyond a reasonable doubt because “[n]o rational juror could find that Roy aided McHargue, knowing what McHargue’s purpose was, without also finding that Roy intended to aid McHargue in his purpose.” A divided panel of this court affirmed. Roy v. Gomez, 55 F.3d 1483 (9th Cir.1995). II. We have held that omission of the specific intent element from jury instructions in the trial" }, { "docid": "426217", "title": "", "text": "-,-, 113 S.Ct. 1770, 1781, 123 L.Ed.2d 508 (1993) (citations omitted), “ ‘[It is] the almost invariable assumption of the law that jurors follow then-instructions’_ ‘[We] presum[e] that jurors, conscious of the gravity of their task, attend closely the particular language of the court’s instructions in a criminal case ... and follow the instructions given them.’ ” A juror would, therefore, have been perfectly justified in deciding that there was no need to worry about malice at all because felony-murder would do as well. This is no phantom, as a fanciful example will illustrate. Suppose in the middle of this awful event Suniga stepped on and killed an ant and the judge instructed the jury that Suniga could be found guilty of the felony-murder of Guantes with the felony being the squashing of an ant. True, that is ludicrous. But felony-murder ADW is no more a crime than felony-murder death of an ant. Indeed, ADW is a more dangerous formulation because the jury would most likely perceive the absurdity of felony-murder ant-squashing while the flaw in felony-murder ADW is not at all obvious, even though the California Supreme Court has dubbed it irrational and unsupported by logic or law. See Ireland, 70 Cal.2d at 539, 75 Cal.Rptr. at 198, 450 P.2d at 590. In short, when the various strands of theory we have described are woven together, the tapestry which emerges depicts an indisputable truth: Our sense of justice re-siles from convicting a person without proving every element of an existing criminal offense of which he has notice. The unusual instructional error in this case permitted the jury to unwittingly abnegate that truth. But, the state argues, the evidence of malice was strong. We agree; it was very strong. There can be little doubt that Suniga was equipped with a gun, called out to the victim, and showed nothing but a hateful disposition after his victim was felled. Of course, there is also no doubt that the victim did charge at Suniga and that the men grappled over the gun. Suniga’s drinking is also unquestioned. But all of this is" }, { "docid": "15279705", "title": "", "text": "when an “in-custody interrogation” occurs under the state statute is a question of state law which is not inextricably linked to the evolving federal standard for an “in-custody interrogation” actionable under Miranda. Not only has the Supreme Court of North Carolina previously determined that, in the instant case, there was no “in-custody interrogation” under state law but Chance has failed to demonstrate that the state court’s interpretation of the state statute infringed upon any federally protected right. Matters of state law not involving federal constitutional issues are not appropriate grounds for federal habeas corpus relief, Grundler v. North Carolina, 283 F.2d 798 (4 Cir. 1960). Chance contends further that he was denied a fair trial because (1) the jury was charged on two “felony murder” theories which had no factual basis, and (2) the jury was not instructed on the lesser included offenses of manslaughter and second degree murder although he had presented evidence that he was intoxicated when the crimes were committed. Normally, instructions to the jury in state trials are purely matters of state law and procedure and it is only in circumstances where the instructions impugn fundamental fairness or infringe upon specific constitutional protections that a federal question is presented. Grundler v. North Carolina, supra at 802. Here, Chance has failed to demonstrate that the instructions given impugned fundamental fairness. His challenge to the jury charge relates to instructions given with respect to two felony murder theories based upon kidnapping; he argues that the court erred in giving these instructions because there was insufficient evidence presented at trial to permit the jury to find that the kidnappings occurred. We find this argument entirely without merit. Chance was convicted not only of first degree murder but also of the two counts of kidnapping upon which the felony murder charges were based. Evidence sufficient to prove the substantive offense of kidnapping is sufficient to prove kidnapping as an element of first degree murder under the felony murder rule. Furthermore, evidence of Chance’s intoxication did not entitle him to additional instructions as to lesser included offenses. Under North Carolina law," }, { "docid": "23236644", "title": "", "text": "penalty that was imposed by a separate three-judge panel) even though the jury at the guilt phase was given no option to find the defendant guilty of a non-capital crime. Id. Hopkins is relevant here. At the time of Anderson’s first trial, similar to the Nebraska law at issue in Hopkins, California law did not require the prosecution to prove that Anderson intended to kill Mrs. Lyman as an element of felony murder. See Anderson, B8 Cal.3d at 61, 210 Cal. Rptr. 777, 694 P.2d 1149; see also People v. Avalos, 98 Cal.App.3d 701, 718, 159 Cal. Rptr. 736 (1979). The law only required proof of the specific intent to commit the underlying felony. Id. Moreover, while there do not appear to be any California eases in existence at the time of Anderson’s trial explicitly stating that there were no lesser-included offenses to felony murder, in deciding not to give such an instruction, the trial court relied on Avalos, see 1RT at 2629, which held that where the prosecution relies solely on felony murder, California law does not require an instruction on lesser-included homicide offenses, despite the defendant’s assertion of a diminished capacity defense. Id. at 718-19, 159 CaLRptr. 736. Under Hopkins, therefore, because the trial court relied on California case law, which did not require any further jury instruction, the court’s decision not to instruct on second-degree murder or manslaughter did not violate the Eighth Amendment as construed in Beck. Anderson cites People v. Ford, 65 Cal.2d 41, 58 n. 9, 52 Cal.Rptr. 228, 416 P.2d 132 (1966), and People v. Mosher, 1 Cal.3d 379, 390, 82 Cal.Rptr. 379, 461 P.2d 659 (1969), to support his argument that the court was required to instruct on lesser-included offenses. However, in addition to other distinguishable facts, in contrast to Anderson’s case, the prosecution in Ford and Mosher did not rely exclusively on felony murder to secure a conviction. Id. at 389-91, 82 Cal.Rptr. 379, 461 P.2d 659; Ford, 65 Cal.2d at 56, 52 Cal.Rptr. 228, 416 P.2d 132. In addition, even assuming the state trial court erred in relying on Avalos" }, { "docid": "22589737", "title": "", "text": "is Murder. If the killing was not murder, it cannot be first degree murder, and a killing cannot become murder in the absence of malice aforethought. Without a showing of malice, it is immaterial that the killing was perpetrated by one of the means enumerated in the statute. 93 Cal.Rptr. 185, 481 P.2d at 196. Because the trial court’s felony-murder instruction permitted the jury to convict Shackleford of first-degree murder by reference to a predicate felony that did not exist, the error was contrary to clearly established federal law. See Suniga v. Bunnell, 998 F.2d 664, 669-70 (9th Cir.1993). Relying on Suniga, Shackleford argues that the instructional error infected the entire trial, and therefore we should not apply a harmless error analysis. See id. at 670. We disagree. In Suniga, the jury could have convicted the defendant of second-degree murder, without ever considering malice, simply by using, improperly, assault with a deadly weapon as the predicate felony. Here, the jury could not have convicted Shackleford of first-degree murder by torture without finding malice. Suniga is inapplicable. See Ficklin v. Hatcher, 177 F.3d 1147, 1151 (9th Cir.1999), cert. denied, 528 U.S. 941, 120 S.Ct. 352, 145 L.Ed.2d 275 (1999) (explaining that Suniga is “inapplicable” when a reviewing court “can tell with certainty from the jury instructions that the jury rested its verdict on a ground that did not implicate petitioner’s constitutional rightfs]”). Shackleford was found guilty of first-degree murder by torture. See Cal. Pen. Code § 189. In California, at the time of Shackleford’s conviction, to find a defendant guilty of first-degree murder by torture, a jury had to find, just as Shackleford’s jury was instructed, that the defendant killed the victim with malice aforethought and that the killing was committed with the intent to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion, or for any other sadistic purpose. See People v. Davenport, 41 Cal.3d 247, 221. Cal.Rptr. 794, 710 P.2d 861, 872 (1985); People v. Wiley, 18 Cal.3d 162, 133 Cal.Rptr. 135, 554 P.2d 881, 883-84 (1976). “The defendant need not have an intent to kill" }, { "docid": "22589736", "title": "", "text": "his victim or any proof that the victim was aware of pain or suffering. There is no question that this instruction was erroneous. Indeed, the State concedes as much. The instruction told the jury that Shackleford could be found guilty of first-degree murder provided he “committed the crime of torture.” But torture was not one of the five felonies enumerated in the 1988 version of California Penal Code section 189 that would have triggered the felony-murder rule. See Cal. Pen.Code § 189 (West 1988).- As a result, a killing that occurred during the infliction of torture was not first-degree murder without a finding of malice. See People v. Dillon, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, 710 (1983); People v. Mattison, 4 Cal.3d 177, 93 Cal.Rptr. 185, 481 P.2d 193, 196 (1970). As the California Supreme Court explained in Mattison, It must be emphasized ... that a Killing by one of the means enumerated in [Penal Code § 189] is not murder of the first degree unless it is first established that it is Murder. If the killing was not murder, it cannot be first degree murder, and a killing cannot become murder in the absence of malice aforethought. Without a showing of malice, it is immaterial that the killing was perpetrated by one of the means enumerated in the statute. 93 Cal.Rptr. 185, 481 P.2d at 196. Because the trial court’s felony-murder instruction permitted the jury to convict Shackleford of first-degree murder by reference to a predicate felony that did not exist, the error was contrary to clearly established federal law. See Suniga v. Bunnell, 998 F.2d 664, 669-70 (9th Cir.1993). Relying on Suniga, Shackleford argues that the instructional error infected the entire trial, and therefore we should not apply a harmless error analysis. See id. at 670. We disagree. In Suniga, the jury could have convicted the defendant of second-degree murder, without ever considering malice, simply by using, improperly, assault with a deadly weapon as the predicate felony. Here, the jury could not have convicted Shackleford of first-degree murder by torture without finding malice. Suniga is" }, { "docid": "16566721", "title": "", "text": "Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) (the constitutional prohibition against successive prosecutions does not prevent the State from retrying a defendant who succeeds in getting his first conviction set aside because of trial error). III. CONCLUSION The instructions given by the trial court permitted the jury to convict for conspiracy to commit first-degree murder without finding intent to kill. The Arizona Supreme Court has explicitly held that intent to kill is an essential element of the crime. Thus, Evanchyk’s federal right to due process was violated. We cannot conclude that the error was harmless. The state court’s decisions, affirming Evanchyk’s conviction and denying his habeas petition, were contrary to clearly established federal law as determined by the Supreme Court. We therefore affirm the district court’s judgment granting habeas relief under 28 U.S.C. § 2254(d). AFFIRMED. . Under Arizona law, first-degree murder is a unitary crime, and a defendant can be convicted even though the jurors are not unanimous on the theory, i.e., premeditated murder or felony murder. State v. Schad, 163 Ariz. 411, 788 P.2d 1162, 1168 (1989). Submitting a multi-theory crime to the jury without requiring unanimity on any one predicate theory is not a constitutional violation. Schad v. Arizona, 501 U.S. 624, 644-45, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). . Evanchyk argues that harmless error analysis would be inappropriate here and that automatic reversal is required, citing Suniga, 998 F.2d 664; Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 2, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); Schad, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555; and Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). We disagree. Those cases involved jury instructions for crimes based on facially invalid or legally impossible theories, or \"non-existent” crimes. In contrast, conspiracy to commit first-degree murder is a legitimate and valid crime under Arizona" }, { "docid": "23239155", "title": "", "text": "L.Ed.2d 734 (1989). Unlike second degree murder, conviction for felony murder under 18 U.S.C. § 1111 requires the commission of an enumerated felony with the requisite mens rea for the underlying offense. Ob-versely, second degree murder requires proof that defendant acted with malice aforethought, Lesina, 833 F.2d at 159, whereas under a felony murder charge the commission of the underlying offense substitutes for malice aforethought. Davis v. State of Tennessee, 856 F.2d 35, 36 (6th Cir.1988). Therefore, the elements of second degree murder are not a subset of the elements of first-degree felony murder, for “each offense requires proof of an element that the other does not.” Whalen v. United States, 445 U.S. 684, 693 n. 7, 100 S.Ct. 1432, 1438 n. 7, 63 L.Ed.2d 715 (1980) (discussing in dictum felony and second degree murder under D.C.Code). Under the Schmuck test, second degree murder is thus not a lesser included offense of felony murder under federal law. Accordingly, the district court’s decision to instruct the jury on second degree murder was a discretionary judgment to which Chischilly was not legally entitled. See Woratzeck v. Ricketts, 820 F.2d 1450, 1457 (9th Cir.1987) (rejecting appellant’s contention that he was entitled to lesser included offense jury instruction on second degree murder where state law provided that second degree murder was not a lesser included offense of felony murder). Chischilly presented and we find no authority for the proposition that where a judge, as a matter of discretion rather than law, instructs the jury as to a lesser included offense of the crime charged, the judge must in turn instruct the jury as to the elements of a tertiary offense included within such lesser included offense. Accordingly, we reject the contention that the second degree murder instruction entitled Chis-chilly to further jury instructions. VII. The Imposition of Concurrent Life Sentences Chischilly contends lastly that the two counts on which he was convicted, felony murder and aggravated sexual abuse, should have been grouped together under Section 3D1.2(a) and (c) of the Federal Sentencing Guidelines (the “Guidelines”) and that the district court’s reason for its departure" }, { "docid": "12998990", "title": "", "text": "or that lethal force be employed; or that the petitioner was a major participant in the felony underlying a felony murder conviction and acted with reckless indifference to human life. See, e.g., Fox v. Ward, 200 F.3d 1286, 1294 (10th Cir.), cert. denied, 531 U.S. 938, 121 S.Ct. 329, 148 L.Ed.2d 264 (2000); United States v. McVeigh, 153 F.3d 1166, 1195 (10th Cir.1998). The jury convicted Johnson of malice aforethought, rather than felony, murder. Johnson, nonetheless, argues that, because the first-stage instructions relieved the State of its burden of proving beyond a reasonable doubt that he possessed the requisite intent to commit malice murder, he is entitled to habeas relief from both his conviction and death sentence. In particular, he challenges instruction No. 9, permitting the jury to convict Johnson either because he committed the murder or because he knowingly aided and abetted Masquat’s commission of malice murder, with “a design to commit a crime or to commit acts the probable consequences of which are criminal.” Johnson contends this instruction permitted the jury to convict him of first degree murder if it found that he possessed only a general criminal intent, rather than the specific intent to Mil Webb. The OMahoma Court of Criminal Appeals held the jury instructions, considered as a whole, properly instructed jurors that they had to find that Johnson acted with “malice aforethought” before they could convict Mm of first degree murder. See Johnson, 928 P.2d at 316; see also id. at 319 (rejecting Enmund/Tison claim). That determination was not contrary to, nor an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). The criminal information, read to the jury, charged Johnson with acting in concert with Masquat and “with premeditated design to effect” Webb’s death. Instruction No. 1. The trial court further instructed the jury that, in order to convict, it had to find four elements, including that Webb’s “death was caused with malice aforethought,” Instruction No. 16, defined as the “deliberate intention to take away” another’s life, Instruction No. 17. Additionally, the trial court specifically instructed jurors that the State" }, { "docid": "426208", "title": "", "text": "a death occurred during the perpetration of an assault with a deadly weapon (ADW) upon the victim. While that is a state — not a constitutional-rule, it is based upon considerations of policy-and justice. As the California Supreme Court said in People v. Ireland, 70 Cal.2d 522, 539, 75 Cal.Rptr. 188, 198, 450-P.2d 580, 590 (1969): We have concluded that the utilization of the felony-murder rule in circumstances such as those before us [,ADW,] extends the operation of that rule “beyond any rational function that it is designed to serve.” To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all eases wherein homicide has been committed as a result of a feloneous assault — a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged, [citations omitted] That view is widely held. See Robert L. Simpson, Annotation, Application of Felony-Murder Doctrine Where the Felony Relied Upon Is an Includible Offense With the Homicide, 40 A.L.R. 1341 § 4 (1971) and (1992 Supp.). Given this, we cannot brush aside Suniga’s claim on the theory that what occurred was simply an error of state law. It was an error of state law, but it was not simply that. It was also an error that allowed the jury to convict Suniga on a theory of culpability that did not exist. It is that aspect which raises the specter of fundamental unfairness and which requires us. to look harder. Suniga asserts that the effect of the instruction was to allow the jury to convict him of an element of murder on a lesser standard than beyond a reasonable doubt. See Sandstrom, 442 U.S. at 521-24, 99 S.Ct. at 2458-59; see also Francis" }, { "docid": "7216949", "title": "", "text": "be given orally by the judge”). The court’s erroneous instruction that general intent is an element of murder in the second degree based on implied malice allowed the jury to convict Ho of second-degree murder based on a finding that he had the general intent to commit the crime. Therefore, the court’s failure to instruct the jury properly violated Ho’s “historical and constitutionally guaranteed right ... to demand that the jury decide guilt or innocence on every issue,” Gaudin, 515 U.S. at 513, 115 S.Ct. 2310, and was constitutional error. Pursuant to 28 U.S.C. § 2254(d)(1), we are required to determine whether the rul ings of the California courts “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.” The ruling of the Court of Appeal involved an unreasonable application of established federal law. “The ‘unreasonable application’ clause requires the state court decision to be more than incorrect or erroneous.” Lockyer, 123 S.Ct. at 1174. Therefore, we may reverse a state court’s decision as involving an “unreasonable application” of clearly established federal law only if we determine that the state court’s “application of clearly established law [is] objectively unreasonable.” Id. When reviewing Ho’s direct criminal appeal, the Court of Appeal seemed to interpret the erroneous jury instruction as ambiguous. The court analyzed the issue under the standard of whether there was a “ ‘reasonable likelihood’ that the jury properly understood [the] law and were the points appellant sought to make at trial adequately covered,” People v. Ho, No. A074863, at 11 (Cal. Ct.App. June 30,1998) (citations omitted), which is essentially the same standard for interpreting whether an ambiguous jury instruction rises to the level of constitutional error outlined by the Supreme Court in Estelle, 502 U.S. at 72, 112 S.Ct. 475. Thus, the Court of Appeal identified correctly the governing legal rule for evaluating the effect of an ambiguous jury instruction. However, the court unreasonably applied the rule to a facially incorrect instruction on the elements of the crime of second-degree murder" } ]

[ { "docid": "22547456", "title": "", "text": "law presumes men and women of the age of the prisoners to be sane, to be responsible agents. Where therefore a homicide is proved to have been committed in such way and under such circumstances as, when done by a person of sane mind, would constitute murder, the presumption of law, as of common sense and general experience, supplies that link. It presumes men to be sane till the contrary is shown. The presumption of law stands until it is met and overcome by the evidence in the case. This evidence may come, of course, as well from the witnesses for the Government as the witnesses for the defence; and when the evidence is all in, the jury must be satisfied, in order to convict the prisoner, not only of the doing of the acts which constitute murder, but that they proceeded from a responsible agent, one capable of committing the offence. This is the rule to be applied to a case where the defence is idiocy, an original defect and want of capacity. Whether the rule is modified where the defence relied upon is insanity, disease of the mind or delusion, it is not necessary now to inquire.” In respect to that case we observe that, upon principle, the rule as to the burden of proof in criminal cases cannot be materially different, where the defence is insanity, disease of the mind or delusion, from the rule obtaining when the defence is an original defect and want of capacity. In Commonwealth v. Pomeroy, (reported in Wharton on Homicide, 2d ed. 753, Appendix,) which was tried in 1874 before Mr. Justice Gray (then Chief Justice of the Supreme Judicial Court of Massachusetts) and Mr. Justice Morton, afterwards Chief Justice of the same court, it was contended by the prosecution that the question of sanity, raised by the defendant, was to be determined by the preponderance of proof; that the Commonwealth was not bound to prove the sanity of the accused beyond a reasonable doubt. But the court said : “ The burden is upon the government to prove everything essential" } ]

[ { "docid": "12097767", "title": "", "text": "direct appeal. But unless Greene’s argument is that the prosecution can only prevail on a felony murder charge if it secures an actual conviction on the underlying felony — and we hold below that there is no such requirement — his argument can only be that the prosecution must prove all the elements of the underlying felony. Thus, the issue is whether the Government proved all the elements of the rescue felony as part of its burden of proving the felony murder charge. As the only arguable issue on the rescue count is whether the D.C. or U.S. burden for proof of sanity applied, the question collapses to whether the trial court was wrong to have applied the D.C. insanity burden to the felony murder count. We hold below that this issue was decided on direct appeal. We recognize, nonetheless, that there are two sources of ambiguity. First, the direct appeal panel, in approving the application of the D.C. insanity burden to Greene’s felony murder charge, never explicitly stated that it was of no consequence to this determination that the underlying offense was a U.S. Code felony. Second, a recent motions panel order in this case suggested that there was “some support” for the position that conviction on the underlying felony is a prerequisite to conviction on a felony murder charge. United States v. Greene, No. 86-5202 (D.C.Cir. Apr. 29, 1987). We therefore address these two issues. We then turn to United States v. Cohen, which provides an alternative basis for our conclusion. B. Conviction on the Underlying Felony To the extent Greene suggests that actual conviction on the underlying felony is a necessary predicate to conviction for felony murder under District of Columbia law, we disagree. While the Government must prove beyond a reasonable doubt all the positive elements of the underlying felony, there is no requirement that it indict and convict the defendant on that underlying felony in order to secure a conviction for felony murder. This is the established law in the District of Columbia and other jurisdictions. Counsel has not directed this court to any case" }, { "docid": "12097766", "title": "", "text": "941, 943 (D.C.Cir.1967). Recently, we had occasion to summarize the rule against relitigation in Garris v. Lindsay, 794 F.2d 722 (D.C.Cir.), cert. denied, — U.S.—, 107 S.Ct. 595, 93 L.Ed.2d 595 (1986), as follows: It is well established in the federal circuits that a federal prisoner cannot raise collaterally any issue litigated and adjudicated on a direct appeal from his conviction, absent an intervening change in the law. Any other rule would frustrate policies strongly favoring conservation of judicial resources and finality of judicial decisions.... ... Collateral review may be available to rectify an error not correctable on direct appeal, or when exceptional circumstances excuse a failure to assert the error on appeal. But “it must be remembered that direct appeal is the primary avenue for review of a conviction or sentence,” and mere lack of success on that appeal does not pave the way for collateral attack. Id. at 726-27 (footnotes omitted). In this case, Greene’s petition urges that the felony murder conviction must fall because the underlying rescue felony was not sustained on direct appeal. But unless Greene’s argument is that the prosecution can only prevail on a felony murder charge if it secures an actual conviction on the underlying felony — and we hold below that there is no such requirement — his argument can only be that the prosecution must prove all the elements of the underlying felony. Thus, the issue is whether the Government proved all the elements of the rescue felony as part of its burden of proving the felony murder charge. As the only arguable issue on the rescue count is whether the D.C. or U.S. burden for proof of sanity applied, the question collapses to whether the trial court was wrong to have applied the D.C. insanity burden to the felony murder count. We hold below that this issue was decided on direct appeal. We recognize, nonetheless, that there are two sources of ambiguity. First, the direct appeal panel, in approving the application of the D.C. insanity burden to Greene’s felony murder charge, never explicitly stated that it was of no consequence" }, { "docid": "12097773", "title": "", "text": "Court Reform Act making its provisions relating to the defense of insanity applicable to offenses committed in the District of Columbia, clearly has application to ... count 3 (felony murder committed while perpetrating the crime of rescuing a federal prisoner)_” 489 F.2d at 1153. In addition, it is clear that the 1973 panel, like this panel, considered only proof of the elements of the underlying felony, not actual conviction of it, a prerequisite to a felony murder conviction. Had the court not held this view, it could not have upheld Greene’s felony murder conviction — as it did — while vacating his conviction on the underlying rescue felony. These findings could result only in the conclusion that there was no reason to apply any sanity burden other than that applicable to the crime charged, i.e., felony murder under section 22-2401 of the D.C. Code. The only issue left open by this court fourteen years ago was whether the D.C. insanity burden could have been applied to a U.S. Code offense standing alone, see 489 F.2d at 1157-58, but that situation is not before us. We hold, therefore, that the issue now raised by Greene was decided by this court on direct review, and that collateral attack is inappropriate. While it could be said that our illumination of this court’s 1973 decision comes long after the fact, we believe that .society’s strong interest in the finality of convictions, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 261-62, 93 S.Ct. 2041, 2065-66, 36 L.Ed.2d 854 (1973) (Powell, J., concurring), is not overcome simply because this court failed to state explicitly what it undoubtedly implied. D. Cohen Even if the insanity burden applicable to the underlying felony were of some significance, this court’s decision in United States v. Cohen, 733 F.2d 128 (D.C.Cir. 1984) (en banc), would prevent Greene from successfully challenging the application of the insanity burden of D.C.Code Ann. § 24 — 301(j) to his felony murder charge. In Cohen, this court interpreted section 24-301(d)(l) of the D.C.Code, which provides for automatic commitment of defendants acquitted solely by reason of insanity." }, { "docid": "12097758", "title": "", "text": "Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS. HARRY T. EDWARDS, Circuit Judge: In a case raising issues ranging from the insanity defense to the unique status of the District of Columbia, this court in 1973 affirmed LaVance Greene’s conviction of felony murder for his killing of a United States Deputy Marshal during an attempt to free his brother from federal custody. While affirming the felony murder conviction, this court vacated Greene’s conviction on the underlying felony — rescue of a federal prisoner, in violation of 18 U.S.C. § 752(a). In so doing, it avoided the constitutional issue of whether Congress could impose on defendants tried for federal offenses in the District of Columbia a burden of proof for insanity different from that required of defendants tried elsewhere. In the present action, brought under 28 U.S.C. § 2255, Greene contends that his felony murder conviction cannot stand, because his conviction on the underlying felony was vacated. Although there is a strong argument that the issue Greene now raises was decided on direct appeal and cannot be attacked collaterally, we recognize that there is some ambiguity in the 1973 opinion and in a recent order of a motions panel of this court. We have therefore decided to issue an opinion. We hold, first, that indictment and conviction on the underlying felony are not requisites to a conviction for felony murder. Rather, the Government need only prove all the positive elements of the underlying felony beyond a reasonable doubt. Second, we hold that this court’s 1973 decision on direct appeal necessarily concluded that it was proper to apply the District of Columbia insanity burden to a felony murder charge under the D.C.Code, notwithstanding the fact that the underlying felony was a U.S.Code offense. Even were this not so, our subsequent decision in United States v. Cohen, 733 F.2d 128 (D.C. Cir.1984) (en banc), which rejected statutory and constitutional challenges to the application of D.C.Code insanity provisions to U.S.Code offenses, would preclude any challenge. For these reasons, we affirm the District Court’s denial of Greene’s motion to set aside his" }, { "docid": "12013446", "title": "", "text": "the 1970 amendments of the D.C.Code were rightly applied to his trial under 18 U.S.C. § 1114 (count 1), for premeditated murder of a federal officer. The general Federal rule provides that once the defendant has adduced appropriate evidence concerning the insanity de fense, the burden is on the government to prove beyond a reasonable doubt that defendant did not have such mental disease in order to prove him guilty of having committed such an offense. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895). A question arises as to whether the Davis rule, which was applicable to all other federal district courts, is inapplicable to the United States District Court for the District of Columbia, by virtue of the 1970 amendment to the D.C.Code, when that court is engaged in the trial of an indictment charging violation of a federal murder statute, i. e., 18 U.S.C. § 1114. The question raises serious issues, compare United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333 (1971), cert. denied, 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed.2d 467 (1972). We do not think it necessary to decide that issue in this case, however, because of the concurrent sentences for felony murder under the D.C.Code, and accordingly, we think it in the interest of justice to follow the practice set forth in the Hooper line of cases, and will vacate the judgment on Count 1. We discern no prejudice to the government and this course obviates the need for ruling in this case on an issue that should be decided only where it is truly material to the controversy. VI. RESCUE OF A FEDERAL PRISONER IN VIOLATION OF 18 U.S.C. § 572(a) Appellant attacks the conviction under this section of Title 18 on the same basis as his attack on Count 1 (premeditated murder of a Federal officer). The trial court sentenced the defendant LaVance Greene consecutively under this count. The sentence imposed by the trial court for the offense of rescue was consecutive to the sentence imposed for felony murder and armed robbery. In Blockburger v." }, { "docid": "12013445", "title": "", "text": "recognized as in United States v. Bennett, 148 U.S.App.D.C. 364, 460 F.2d 872 (1972), that an entire defense may be prejudiced by the intermingling at trial the insanity defense with the defense on the merits. In- Bennett’s case, the testimony of the government psychiatrist that Bennett had a very good recollection of the events and that he recalled minutely what happened prior to the offense was deemed prejudicial. It is obvious that bifurcation would have been the preferable course in Bennett’s case. It is also obvious that a serious question was raised under 18 U.S.C. § 4244 by the admission of such testimony. We held that reversal was required for that and other reasons. Here, no abuse of discretion has been shown. Additionally, the obvious way to avoid confusion in instructing a jury on the standard of proof required of one interposing insanity as a defense, namely, by a preponderance of the evidence, is to bifurcate the insanity defense. V. PREMEDITATED MURDER OF A FEDERAL OFFICER Appellant raises a question whether the procedure followed under the 1970 amendments of the D.C.Code were rightly applied to his trial under 18 U.S.C. § 1114 (count 1), for premeditated murder of a federal officer. The general Federal rule provides that once the defendant has adduced appropriate evidence concerning the insanity de fense, the burden is on the government to prove beyond a reasonable doubt that defendant did not have such mental disease in order to prove him guilty of having committed such an offense. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895). A question arises as to whether the Davis rule, which was applicable to all other federal district courts, is inapplicable to the United States District Court for the District of Columbia, by virtue of the 1970 amendment to the D.C.Code, when that court is engaged in the trial of an indictment charging violation of a federal murder statute, i. e., 18 U.S.C. § 1114. The question raises serious issues, compare United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333 (1971), cert. denied, 405 U.S." }, { "docid": "12097772", "title": "", "text": "evidence to sustain a conviction on the underlying felony, Head v. United States, 451 A.2d 615, 624-25 (D.C.1982); State v. McCowan, 223 Kan. 329, 573 P.2d 1029, 1031-32 (1978). We have found no case where a felony murder conviction was overturned despite the fact that all the essential elements of the underlying felony had been proved, merely because a formal conviction had not been obtained. C. This Court’s 1973 Holding As indicated above, the 1973 opinion of the panel that heard Greene’s direct appeal was not as explicit in every detail as it might have been. It is nonetheless clear to us that that panel fully considered and resolved the question which Greene now presents on collateral review. In particular, the panel necessarily, albeit implicitly, held that where a defense of insanity is interposed to a felony murder prosecution, the standard for determining sanity is the one specified for the crime of felony murder, and not the standard applicable to the underlying felony. This is clear from the court’s holding that “[t]he provision of the Court Reform Act making its provisions relating to the defense of insanity applicable to offenses committed in the District of Columbia, clearly has application to ... count 3 (felony murder committed while perpetrating the crime of rescuing a federal prisoner)_” 489 F.2d at 1153. In addition, it is clear that the 1973 panel, like this panel, considered only proof of the elements of the underlying felony, not actual conviction of it, a prerequisite to a felony murder conviction. Had the court not held this view, it could not have upheld Greene’s felony murder conviction — as it did — while vacating his conviction on the underlying rescue felony. These findings could result only in the conclusion that there was no reason to apply any sanity burden other than that applicable to the crime charged, i.e., felony murder under section 22-2401 of the D.C. Code. The only issue left open by this court fourteen years ago was whether the D.C. insanity burden could have been applied to a U.S. Code offense standing alone, see 489 F.2d" }, { "docid": "12013432", "title": "", "text": "of 22 D.C.Code § 2401 — count 2 (felony murder committed while perpetrating a robbery) and count 3 (felony murder committed while perpetrating the crime of rescuing a federal prisoner) — whether those crimes are prosecuted in the United States District Court for the District of Columbia or in the Superior Court of the District of Columbia. We continue to put to one side, as we did in Brawner, whether those provisions were intended to or can have application to a prosecution in the District Court of a violation of Title 18 of the United States Code, which is intended for enforcement throughout the Federal court system. In enacting local criminal statutes in the exercise of its singular constitutional responsibility to legislate for the District, Congress need not hew to the same path it elects in defining criminal offenses of nationwide applicability, pursuant to its Federal legislative powers. Thus viewed, we find no inconsistency whatever in applying to a D.C. Code offense — albeit tried in the United States District Court — a standard of proof different from that of a Federal offense tried, for example, in the District Court for the Southern District of New York. Indeed, it would be more anomalous for one standard, at least of a substantive or crucial nature, to be applied when a D.C.Code offense is tried in the Superior Court and another when the same offense is tried in the District Court. Section 207(6) obviates this by providing that a single rule of insanity shall apply to all D.C.Code offenses, regardless of the tribunal before which they are tried. We cannot accept appellant’s suggestion that this works a denial of the equal protection of the laws. Appellant also contends that Section 207(6) of the Court Reform Act amounts to a denial of due process. We find this contention equally without merit. The Supreme Court in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), sustained an Oregon statute which required a defendant asserting insanity as a defense to prove that defense beyond a reasonable doubt. Here, Congress, in its" }, { "docid": "12013461", "title": "", "text": "to a recent amendment to the D.C.Code requiring a defendant to prove his insanity defense by a preponderance of the evidence. For disarming several federal marshals, and then shooting one of them as he assisted his brother to escape, La Vance Greene was convicted of two U.S. Code offenses — -premeditated murder of a federal officer, and assisting a federal prisoner to escape; he was also convicted of five D.C.Code offenses — felony murder, and four counts of armed robbery. The jury rejected a plea of insanity after being instructed in accordance with the recently enacted D.C. Code provision requiring a defendant to establish his plea by a “preponderance of the evidence.” The court affirms all of appellant’s D.C.Code convictions, and vacates all of his U.S.Code convictions. A brief summary of the court’s holdings, and my views thereon, which I will address more fully below, are as follows: I. The court holds that the D.C.Code felony murder statute applies to U.S. Code felonies. (Court’s opinion at 1150, 1151.) In my view: A. The court’s reasons do not support its interpretation of the D.C. Code felony murder statute, and there are strong reasons for limiting the statute to local offenses. (Pp. 1161-1164.) B. If the D.C.Code felony murder provision applies to federal offenses, it is a denial of equal protection. (Pp. 1164-1165.) C. This court’s decision in United States v. Canty requires vacation of appellant’s D.C. felony murder conviction irrespective of the general application of the D.C. felony murder provision. (Pp. 1166-1165.) II. The court expressly recognizes that the federal premeditated murder conviction, for which sentence was imposed concurrently with the sentence on the D.C.Code felony murder conviction, raises a serious constitutional question. To avoid this serious issue, it vacates the federal homicide conviction under the Hooper doctrine. (Court’s opinion at 1157-1158.) It also vacates the federal conviction for assisting escape because, as the underlying felony of the felony murder conviction, it merges into the felony murder. (Court’s opinion at 1158.) In my view: A. The court’s use of Hooper is an improper exercise of appellate discretion. (Pp. 1166-1167.) B. It" }, { "docid": "12097759", "title": "", "text": "appeal and cannot be attacked collaterally, we recognize that there is some ambiguity in the 1973 opinion and in a recent order of a motions panel of this court. We have therefore decided to issue an opinion. We hold, first, that indictment and conviction on the underlying felony are not requisites to a conviction for felony murder. Rather, the Government need only prove all the positive elements of the underlying felony beyond a reasonable doubt. Second, we hold that this court’s 1973 decision on direct appeal necessarily concluded that it was proper to apply the District of Columbia insanity burden to a felony murder charge under the D.C.Code, notwithstanding the fact that the underlying felony was a U.S.Code offense. Even were this not so, our subsequent decision in United States v. Cohen, 733 F.2d 128 (D.C. Cir.1984) (en banc), which rejected statutory and constitutional challenges to the application of D.C.Code insanity provisions to U.S.Code offenses, would preclude any challenge. For these reasons, we affirm the District Court’s denial of Greene’s motion to set aside his conviction. I. Background The events that gave rise to this case sixteen years ago are not in dispute. Greene’s half-brother Randolph, who was serving a prison sentence for bank robbery, was permitted to attend his father’s funeral in Washington, D.C., on September 24, 1971. During the funeral service, La-Vance Greene attempted to help his brother escape by disarming three marshals accompanying him. In fleeing the scene, La-Vance Greene shot to death a fourth marshal who had given chase. Both brothers were apprehended after a high-speed automobile pursuit. At the brothers’ trial in U.S. District Court, seven counts against LaVance Greene were ultimately submitted to the jury. Four were counts of armed robbery under the District of Columbia Code. Two were violations of the United States Code— premeditated murder of a federal officer, in violation of 18 U.S.C. § 1114, and rescue of a federal prisoner, in violation of 18 U.S.C. § 752(a). The last count — which is at issue here — was a charge of felony murder under D.C.Code Ann. § 22-2401, for which" }, { "docid": "12097777", "title": "", "text": "over the District of Columbia, without being obliged simultaneously to take like measures under its general legislative powers. See 733 F.2d at 138-39 (citing Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955)). We see no reason why Cohen’s constitutional analysis should not extend to subsection 24-301(j). The parties have vigorously debated whether the 1984 Cohen decision can tell us anything about the standard that should have been applied when Greene’s direct appeal was decided in 1973. See Brief for the United States at 23-25; Reply Brief for Appellant at 12-18. We find it unnecessary to decide this question, for Cohen makes it very clear what standard would apply if Greene were to be retried now. The applicable insanity burden now would be the same one that was applied to Greene’s felony murder count in 1973, namely that specified in section 24 — 301(j) of the D.C.Code. Thus, if there was error, it would not be sufficient to require reversal even on direct appeal, see Fed.R.Crim.P. 52(a), much less on collateral review. See United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239, 60 L.Ed.2d 805 (1979). Conclusion For the reasons discussed above, the order of the District Court denying appellant Greene’s motion to set aside his felony murder sentence is Affirmed. . The court received invaluable assistance in this case from Sean Connelly, appointed counsel for the appellant, and from Roy T. Englert, counsel for the Government. We are pleased to commend both counsel for the very high quality of their briefs and oral arguments. . The United States District Court for the District of Columbia has jurisdiction over criminal violations of the D.C.Code when they are prosecuted jointly with violations of the U.S.Code. See D.C.Code Ann. § 11-502(3). . In 1984 Congress changed the insanity burden in federal prosecutions. The defendant now has the burden of proving insanity by clear and convincing evidence. See 18 U.S.C. § 17(b) (Supp.IV 1986). . The court explained that Congress need not follow the same path in exercising its separate constitutional authority to" }, { "docid": "12013428", "title": "", "text": "847 (1962). In Coleman, the defendant was convicted of first degree felony murder. Counsel attacked the indictment for the reason that it did not contain the statutory allegation that the defendant was of sound memory and discretion. He recognized that such a. contention had been specifically rejected by this Court in the Hill (Hill v. United States) case, 22 App.D.C. 395, 400-402. In United States v. Green, 150 U.S. App.D.C. 222, 463 F.2d 1313 (1972), in footnote 5, we affirmed what we held in Hill and Coleman, supra. The trial court in instructing the jury on the elements of felony murder (Tr. 985) set them forth clearly and explicitly. There is in the record ample evidence to support the jury’s'finding of guilty. III. INSANITY AS A DEFENSE Appellant attacks Section 207(6) of the District of Columbia Court Reform and Criminal Procedure Act of 1970, P. L. 91-358, which added a new sentence at the end of 24 D.C.Code § 301(j), so as to place the burden upon a defendant asserting insanity as a defense to prove this defense by a preponderance of the evidence. Section 301(j), as amended, provides: Insanity shall not be a defense in any criminal proceeding in the United States District Court for the District of Columbia or in the Superior Court of the District of Columbia, unless the accused or his attorney in such proceeding, at the time the accused enters his plea of not guilty or within fifteen days thereafter or at such later time as the court may for good cause permit, files with the court and serves upon the prosecuting attorney written notice of his intention to rely on such defense. No person accused of an offense shall be acquitted on the ground that he was insane at the time of its commission unless his insanity, regardless of who raises the issue, is affirmatively established by a preponderance of the evidence. (Emphasis supplied.) This ease presents no ex post facto question, as the provision became effective February 1, 1971, prior to the September 24, 1971, date of the homicide in this case. Appellant’s" }, { "docid": "12013519", "title": "", "text": "U.S.App.D.C. 264, 407 F.2d 1199 (1968); Calloway v. United States, 130 U.S.App.D.C. 273, 399 F.2d 1006 (1968); Coleman v. United States, 111 U.S.App.D.C. 210, 295 F.2d 555 (1962); Carter v. United States, 96 U.S.App.D.C. 40, 223 F.2d 332 (1955); Wheeler v. United States, 82 U.S.App.D.C. 363, 165 F.2d 225 (1947). . The D.O. felony murder conviction carries a minimum sentence that is five years greater than the minimum sentence on the federal premeditated murder conviction, see n. 27 supra. The federal assisting escape conviction, vacated by the court, carried a 20 month, minimum sentence. Thus, appellant’s sentence was increased by three years and four months. . If the D.C.Code provision governing the burden of proof on insanity pleas could not apply to U.S.Code offenses, appellant was entitled to a retrial on the insanity phase of all of his convictions. See p. 1170-1171 infra. . If appellant had been acquitted by reason of insanity on the federal murder charge, he probably would have been sent to Saint Elizabeths for treatment even if his D.C.Code armed robbery convictions were affirmed. See Kent v. United States, 119 U.S.App.D.C. 378, 343 F.2d 247, 250 (1965). . See United States v. Williams, 150 U.S. App.D.C. 122, 463 F.2d 958 (1972). . Although the question has never been considered, it seems clear that a defendant acquitted by reason of insanity on the underlying felony cannot also be convicted of felony murder since the underlying felony provides the mental state and intent otherwise needed for first degree murder. See p. 1168 supra. . The statute governing the burden of proof was an amendment to the general D.C.Code provision on the insanity defense, which is applicable “in any criminal proceeding in the United States District Court for the District of Columbia or in the Superior Court of the District of Columbia . . . ” 24 D.C. Code § 301 (j) (1973) (emphasis supplied). See also notes 58, 65, 66 & 67 infra. . “[S]eetion 301 (j) would have to be stretched far beyond the breaking point to be held applicable only to local offenses.” . An under" }, { "docid": "12013460", "title": "", "text": "offense, the same considerations are applicable when the State (here the District of Columbia) happens to define its criminal offenses in terms of a concomitant intent to violate, or violation of, the criminal laws of another state (or of the Federal Government). . P.L. 91-358, § 207(6), amending 24 D.C. Code § 301 (j) (1973). STATEMENT OF CHIEF JUDGE BAZELON AS TO WHY HE WOULD GRANT REHEARING EN BANC.. BAZELON, Chief Judge: In large part this case involves questions arising out of the interplay between the District of Columbia (local) Criminal Code, on the one hand, and the 1. This case does not involve the problem of United States v. Thompson, 147 U.S.App. D.C. 1, 452 F.2d 1333 (1971), and I at least would have grave difficulty with an assertion that the legislature could require, in a prosecution under the national criminal code, that one Federal district court must deny important protections granted to defendants by other Federal district courts. United States (federal) Criminal Code, on the other. It also involves a due process challenge to a recent amendment to the D.C.Code requiring a defendant to prove his insanity defense by a preponderance of the evidence. For disarming several federal marshals, and then shooting one of them as he assisted his brother to escape, La Vance Greene was convicted of two U.S. Code offenses — -premeditated murder of a federal officer, and assisting a federal prisoner to escape; he was also convicted of five D.C.Code offenses — felony murder, and four counts of armed robbery. The jury rejected a plea of insanity after being instructed in accordance with the recently enacted D.C. Code provision requiring a defendant to establish his plea by a “preponderance of the evidence.” The court affirms all of appellant’s D.C.Code convictions, and vacates all of his U.S.Code convictions. A brief summary of the court’s holdings, and my views thereon, which I will address more fully below, are as follows: I. The court holds that the D.C.Code felony murder statute applies to U.S. Code felonies. (Court’s opinion at 1150, 1151.) In my view: A. The court’s reasons" }, { "docid": "12097760", "title": "", "text": "conviction. I. Background The events that gave rise to this case sixteen years ago are not in dispute. Greene’s half-brother Randolph, who was serving a prison sentence for bank robbery, was permitted to attend his father’s funeral in Washington, D.C., on September 24, 1971. During the funeral service, La-Vance Greene attempted to help his brother escape by disarming three marshals accompanying him. In fleeing the scene, La-Vance Greene shot to death a fourth marshal who had given chase. Both brothers were apprehended after a high-speed automobile pursuit. At the brothers’ trial in U.S. District Court, seven counts against LaVance Greene were ultimately submitted to the jury. Four were counts of armed robbery under the District of Columbia Code. Two were violations of the United States Code— premeditated murder of a federal officer, in violation of 18 U.S.C. § 1114, and rescue of a federal prisoner, in violation of 18 U.S.C. § 752(a). The last count — which is at issue here — was a charge of felony murder under D.C.Code Ann. § 22-2401, for which the federal rescue offense was the underlying felony. In a bifurcated proceeding, the jury first determined that Greene had in fact committed the acts charged in all of the counts. It then considered his defense of insanity. At the time, different burdens of proof for insanity existed under the D.C.Code and federal common law. While the federal courts generally followed the rule of Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), which placed on the Government the burden of proving sanity beyond a reasonable doubt, section 24-301(j) of the D.C.Code — recently amended by the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. No. 91-358, § 207(6), 84 Stat. 473, 602— placed the burden on the defendant to prove insanity by a preponderance of the evidence. The trial judge held that this D.C. burden should apply to all of the counts in the proceeding, including those based on the U.S. Code. The jury found that Greene had failed to carry his burden of proving insanity" }, { "docid": "12013422", "title": "", "text": "Here, the Court is confronted with no comparable situation. II. THE FELONY MURDER CONVICTION The third count of the indictment on which La Vance Greene was convicted is drawn under 22 D.C.Code § 2401 (1967) and charges him with first degree murder committed while perpetrating the crime of rescuing a federal prisoner. In pertinent part, 22 D.C. Code § 2401 reads as follows: Whoever, being of sound memory and discretion, kills another purposely, * * * in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, * * *. (Emphasis added.) The crime of rescuing a federal prisoner is defined by 18 U.S.C. § 752(a). The appellant argues that the term “any offense” in Section 22-2401 “includes only the local felonies created by D.C.Code and not the national felonies created by U.S.Code.” Contending the rescuing a federal prisoner “is exclusively a national crime”, counsel for the appellant reaches the conclusion that there is no statute which creates the offense alleged in the third count. In support of this thesis doubt is expressed that Congress intended “parochial penal legislation”, such as the District of Columbia statute, to be applied in implementing statutes creating “national crimes”. It is said “a construction favoring such unnecessary implementation will produce discriminatory, harsh results” in that the penalty for first degree felony murder will be more severe in the District of Columbia than elsewhere under the federal statute. The question presented is one of congressional intent: did Congress intend the plain words “any offense” to include a Title 18 offense committed in the District of Columbia? We think Congress did so intend. The Federal Criminal Code embodied in Title 18 and the District of Columbia Criminal Code of Title 22 were both enacted by Congress and were intended to exist together. Johnson v. United States, 225 U.S. 405, 32 S.Ct. 748, 56 L.Ed. 1142 (1912). We believe further that they were intended to mesh with each other, and they have been so construed in the past. Thus a violation of the District of Columbia Code has been held to be an offense" }, { "docid": "12097762", "title": "", "text": "and that he was therefore guilty on all counts. On direct appeal, this court affirmed Greene’s conviction on the armed robbery counts (which are of no concern in the present litigation) and the felony murder charge. The court held that a felony murder charge under the D.C.Code could be based on an underlying U.S. Code felony. United States v. Greene, 489 F.2d 1145, 1150-51 (D.C.Cir.1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1974). It further held that the D.C. insanity burden applied to the D.C.Code offenses, whether they were prosecuted in the United States District Court or the District of Columbia Superior Court, and that the heavier burden for D.C. offenses did not constitute a denial of equal protection. Id. at 1152-53, 1158. The court also rejected Greene’s argument that the D.C. provision requiring the defendant to prove his insanity amounted to a denial of due process. The court relied on Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), in which the Supreme Court had sustained a similar provision in an Oregon statute. Rejecting Greene’s argument that Leland had in effect been overruled by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which had held that the prosecution must prove all elements of an offense beyond a reasonable doubt, this court held that proof of sanity was not an essential element of a criminal offense. 489 F.2d at 1153-56. The court found Greene’s convictions on the two U.S. Code counts — murder of a federal officer and rescue of a federal prisoner — more problematic. Stating that application of the D.C. insanity burden to U.S. Code offenses raised a serious equal protection issue, the court chose to avoid that issue by vacating Greene’s convictions on these two counts on technical grounds. Because the sentence for murder of a federal official was concurrent with the sentence for felony murder, the court used its discretion under United States v. Hooper, 432 F.2d 604 (D.C.Cir.1970), to vacate the former. 489 F.2d at 1157-58. Similarly, the court vacated Greene’s rescue" }, { "docid": "12013427", "title": "", "text": "of the Virginia legislature to legislate concerning homicides occurring within the territorial limits of Virginia, and could go beyond the Federal maritime code. Counsel also attacks the charge in Count 3 for the reason that the trial court did not instruct on all the elements. Particularly, he says that the trial court did not tell the jury that the government was required to prove, among other things, that LaVance Greene was of sound memory and discretion. It is well settled that no allegation of sanity is required in an indictment, nor does the language of Section 2401 of Title 22 of the D.C.Code require that the indictment include the allegation that the defendant was of sound memory and discretion. See Jones v. United States, 111 U.S.App.D.C. 276, 296 F.2d 398, cert. denied, 370 U.S. 913, 82 S.Ct. 1260, 8 L.Ed.2d 406 (1962). See also Coleman v. United States, 111 U.S.App.D.C. 210, 295 F.2d 555, cert. denied, 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 613, rehearing denied, 369 U.S. 842, 82 S.Ct. 870, 7 L.Ed.2d 847 (1962). In Coleman, the defendant was convicted of first degree felony murder. Counsel attacked the indictment for the reason that it did not contain the statutory allegation that the defendant was of sound memory and discretion. He recognized that such a. contention had been specifically rejected by this Court in the Hill (Hill v. United States) case, 22 App.D.C. 395, 400-402. In United States v. Green, 150 U.S. App.D.C. 222, 463 F.2d 1313 (1972), in footnote 5, we affirmed what we held in Hill and Coleman, supra. The trial court in instructing the jury on the elements of felony murder (Tr. 985) set them forth clearly and explicitly. There is in the record ample evidence to support the jury’s'finding of guilty. III. INSANITY AS A DEFENSE Appellant attacks Section 207(6) of the District of Columbia Court Reform and Criminal Procedure Act of 1970, P. L. 91-358, which added a new sentence at the end of 24 D.C.Code § 301(j), so as to place the burden upon a defendant asserting insanity as a defense to" }, { "docid": "12097763", "title": "", "text": "a similar provision in an Oregon statute. Rejecting Greene’s argument that Leland had in effect been overruled by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which had held that the prosecution must prove all elements of an offense beyond a reasonable doubt, this court held that proof of sanity was not an essential element of a criminal offense. 489 F.2d at 1153-56. The court found Greene’s convictions on the two U.S. Code counts — murder of a federal officer and rescue of a federal prisoner — more problematic. Stating that application of the D.C. insanity burden to U.S. Code offenses raised a serious equal protection issue, the court chose to avoid that issue by vacating Greene’s convictions on these two counts on technical grounds. Because the sentence for murder of a federal official was concurrent with the sentence for felony murder, the court used its discretion under United States v. Hooper, 432 F.2d 604 (D.C.Cir.1970), to vacate the former. 489 F.2d at 1157-58. Similarly, the court vacated Greene’s rescue conviction because it found that consecutive sentences on the felony murder and rescue counts were improper under Blockburger v. United States, 284 U.S. 299, 304, 52 5.Ct. 180, 182, 76 L.Ed. 306 (1932), and because there had been a “merger” between the felony murder count and the rescue felony on which it was based. 489 F.2d at 1158 (citing United States v. Benn, 476 F.2d 1127 (D.C.Cir.1972) (as amended Mar. 8, 1973)). Over a lengthy dissent by Chief Judge Bazelon, 489 F.2d at 1160-80, the court denied Greene’s suggestion for rehearing en banc. Id. at 1159. The Supreme Court, three Justices dissenting, denied certiorari. 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1974). In moving under 28 U.S.C. § 2255 to set aside his felony murder sentence, Greene argues that because the underlying felony conviction was vacated, his felony murder sentence can no longer stand. The District Court denied Greene’s motion on February 28, 1986. Upon appeal to this court, a motions panel found “some support” for the position that one “cannot be guilty" }, { "docid": "12097761", "title": "", "text": "the federal rescue offense was the underlying felony. In a bifurcated proceeding, the jury first determined that Greene had in fact committed the acts charged in all of the counts. It then considered his defense of insanity. At the time, different burdens of proof for insanity existed under the D.C.Code and federal common law. While the federal courts generally followed the rule of Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), which placed on the Government the burden of proving sanity beyond a reasonable doubt, section 24-301(j) of the D.C.Code — recently amended by the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. No. 91-358, § 207(6), 84 Stat. 473, 602— placed the burden on the defendant to prove insanity by a preponderance of the evidence. The trial judge held that this D.C. burden should apply to all of the counts in the proceeding, including those based on the U.S. Code. The jury found that Greene had failed to carry his burden of proving insanity and that he was therefore guilty on all counts. On direct appeal, this court affirmed Greene’s conviction on the armed robbery counts (which are of no concern in the present litigation) and the felony murder charge. The court held that a felony murder charge under the D.C.Code could be based on an underlying U.S. Code felony. United States v. Greene, 489 F.2d 1145, 1150-51 (D.C.Cir.1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1974). It further held that the D.C. insanity burden applied to the D.C.Code offenses, whether they were prosecuted in the United States District Court or the District of Columbia Superior Court, and that the heavier burden for D.C. offenses did not constitute a denial of equal protection. Id. at 1152-53, 1158. The court also rejected Greene’s argument that the D.C. provision requiring the defendant to prove his insanity amounted to a denial of due process. The court relied on Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), in which the Supreme Court had sustained" } ]

[ { "docid": "425784", "title": "", "text": "crime. See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J.Pol.Eeon. 169 (1968). For recent elaborations see, e.g., Lucian Arye Bebehuk & Louis Kaplow, Optimal Sanctions When Individuals Are Imperfectly Informed about the Probability of Apprehension, 21 J.Leg.Stud. 365 (1992); Michael K. Block, Optimal Penalties, Criminal Law and the Control of Corporate Behavior, 71 B.U.L.Rev. 395 (1991); John R. Lott, Jr., An Attempt at Measuring the Total Monetary Penalty from Drug Convictions, 21 J.Leg.Stud. 159 (1992); A. Mitchell Polinsky & Steven Shavell, Enforcement Costs and the Optimal Magnitude and Probability of Fines, 35 J.L. & Econ. 133 (1992). (Professor Block was a member of the Sentencing Commission \"when § 5E1.2(i) was adopted, and Professor Lott was the Commission’s Chief Economist.) Nothing in § 3553 or § 994 rejects an approach to deterrence that includes the costs of custody among the considerations that influence the selection of a fine. Two other considerations troubled the third circuit. First, that court observed that Congress has instructed the Commission to “study the feasibility of requiring prisoners incarcerated in Federal correctional institutions to pay some or all of the costs incident to the prisoner’s confinement.” Section 7301 of Pub.L. 100-690, 102 Stat. 4463 (1988). Such a command implies, the court believes, that “study” is the only permissible activity for the Commission. 976 F.2d at 166. Why? The statute does not create such a restriction. Section 5E1.2(i) was part of the Guidelines on their promulgation in 1987, before the enactment of § 7301. Section 7301 does not mention or subtract from any of the Commission’s permanent legislation, and we all know the canon that repeals by implication are disfavored. The authors of § 7301 likely were unaware of § 5E1.2(i). At all events, what better way to study something than to try it out and see what happens? Second, the third circuit was disturbed by the disparity between the text of § 5E1.2(i), which calls for a fine “at least sufficient to pay the costs to the government” of custody or supervised release, and the actual disposition of the money collected from the defendant," } ]

[ { "docid": "15035215", "title": "", "text": "pay, achievement awards, special awards and vacation. Id. Admittedly, two prisoners assessed the same monetary fine but assigned to different levels of prison work are subject to disparate economic impacts when the fines are deducted from their prison income, but as we have explained, the courts do not and should not have control over these disparities, for this is a matter for prison authorities. Cf., Bell v. Wolfish, 441 U.S. 520, 544, 99 S.Ct. 1861, 1876-77, 60 L.Ed.2d 447 (1979). We do not agree, nor have the defendants’ presented any authority to support their contention, that in passing the Sentencing Reform Act, Congress charged the Sentencing Commission with the task of developing a scheme that equalized, or even considered, such factors as vocational ability in order to avoid “disparate impacts” arising from the imposition of fines. We are aware of no language, nor have counsel presented us with any such language in the Sentencing Reform Act, much less case law, that supports their contention that judges do not have the authority to impose fines on indigent prisoners to be paid out of their prison wages. Instead, Vargas and Sanchez ask this court to infer an alleged Congressional intent of reducing sentencing disparity is to be interpreted as embracing the alleged objective of reducing the disparate impacts felt by similarly sentenced defendants. This is an inference we refuse to accept in light of the Senate Report which espouses the virtues of individualized sentences. See 1984 U.S.C.C.A.N. 3182, at 3235. Assume, for the sake of argument, that the district court imposed identical sentences on both defendants in this case and neither defendant was fined. In accordance with Bureau of Prison guidelines, each of them were given a job assignment in prison adapted to the individual’s particular needs, including, but not limited to, his skills, aptitude, interests, and abilities. Assume also that one excels and is a more dedicated worker, excels in his job performance, and earns additional bonus pay. As a result of the combined effects of the differential based upon job assignment, different work skills, and the bonus pay, one defendant" }, { "docid": "15035216", "title": "", "text": "indigent prisoners to be paid out of their prison wages. Instead, Vargas and Sanchez ask this court to infer an alleged Congressional intent of reducing sentencing disparity is to be interpreted as embracing the alleged objective of reducing the disparate impacts felt by similarly sentenced defendants. This is an inference we refuse to accept in light of the Senate Report which espouses the virtues of individualized sentences. See 1984 U.S.C.C.A.N. 3182, at 3235. Assume, for the sake of argument, that the district court imposed identical sentences on both defendants in this case and neither defendant was fined. In accordance with Bureau of Prison guidelines, each of them were given a job assignment in prison adapted to the individual’s particular needs, including, but not limited to, his skills, aptitude, interests, and abilities. Assume also that one excels and is a more dedicated worker, excels in his job performance, and earns additional bonus pay. As a result of the combined effects of the differential based upon job assignment, different work skills, and the bonus pay, one defendant ends up with significantly higher wages than the other. Both were sentenced to identical periods of confinement, neither defendant was fined, yet a disparate impact has resulted because one defendant has earned more money for his account than the other while enjoying all the amenities and conveniences this additional money provides. Note that this hypothetical encompasses the disparate impact solution proposed by the appellants in this case, elimination of the fine, yet the two defendants still experience a disparate economic impact. Disparate impacts of varying degrees are unavoidable. The appellants cite no authority for then-theory that disparate impacts are impermissible under the Guidelines. In fact, if we were to follow the defendants’ argument to its logical conclusion, then the courts could never impose fines because of unavoidable disparities in prison job assignments and individual talents and skills are inevitable. Yet we know that this conclusion is neither accurate nor valid vis a vis the imposition of penalty fines because Congress specifically provided for the payment of fines, in fact it mandated payment of the same" }, { "docid": "15035211", "title": "", "text": "Just so with fines. Gomez, 24 F.3d at 927 (citing House, 808 F.2d 508, and United States v. Tosca, 18 F.3d 1352, 1355 (6th Cir.1994)). Notwithstanding our decision in Gomez, Vargas and Sanchez argue that prison wage garnishment for the purpose of making an indigent defendant pay a criminal fine is improper and contrary to the intent of the Guidelines. In essence, the appellants are trying to limit the scope of Gomez, and argue that our holding in that case is not applicable to indigent defendants. We reject their attempt to narrowly proscribe the very clear language of Gomez, and hold that the principle enunciated therein, namely that prison wages can be garnished to pay prisoners’ fines, is applicable to Vargas and Sanchez. 1. Sentence Impact Disparity The defendants initially contend that prison wage garnishment has the potential to produce “disparate impacts” on inmates sentenced for committing identical offenses. According to the defendants, this disparity arises from the sliding scale of inmate wages. Thus, for example, two inmates serving identical terms of confinement and having had similar monetary fines imposed, but earning different wages as a result of different work assignments, will suffer disparate degrees of hardship during the period the fine payments are deducted from their wages. The inmate at the lower wage may very well suffer greater hardship while incarcerated than the prisoner with the higher wage because he will be left with less money in his prison trust account following the deduction of the fine payment. We reject this novel “disparate impact” argument because the Sentencing Reform Act charges sentencing courts with responsibility to avoid sentencing disparities, not sentencing impact disparities. It is intuitive that the former objective is amenable to court action while the latter involves factors that are beyond the control of the sentencing judge. We note that the defendants in this case were convicted of different offenses and that although they both had criminal history categories of I, they had different criminal history records, a factor that should and usually does have an impact on defendants’ sentences. Further, the sentence imposed is impacted by" }, { "docid": "12270363", "title": "", "text": "of four months imprisonment in a federal prison camp with no personal fine. The district court accepted the plea and held that the Guidelines were to be used in sentencing. Subsequently the government filed a motion under Guideline § 5K1.1 requesting that the district court depart from the Guidelines in order to impose no personal fine because of Mr. Pippin’s cooperation with the government’s investigation. The government argued that the motion for departure was for only the fine portion of the sentence and that “no departure from the jail sentence portion of the Guidelines sentence [was] being sought.” At the sentencing hearing, the district court strongly disagreed with the government’s position that the 5K1.1 motion could be limited to the fine portion of the sentence. It appears that ultimately the district court decided not to depart from the Guidelines for either the fine or incarceration imposed. Commenting that its sen-fence was “within the Guidelines,” the district court imposed a punishment of four months of community confinement followed by one year of supervised release; and payment of any costs incident to the confinement and supervision of release, a $25,000.00 fine, and a $50.00 special assessment. II. On appeal both parties agree that the district court did not sentence within the Guidelines but disagree on what sentence should have been imposed. The sharply conflicting views held by the government, the defendant, the probation officer who prepared the presentence report, and the district court, all demonstrate the “ ‘horri-pilating confusion’ ” that the Guidelines have wrought. However, we need not waste time disentangling a snarly rope if the Guidelines may not be used. Thus, we first address the defendant’s argument that the Guidelines are inapplicable here. A. The Guidelines went into effect on November 1, 1987, and only apply to criminal offenses “committed after” that date. See Sentencing Act of 1987, Pub.L. No. 100-182, § 2(a), 101 Stat. 1266 (1987). While the legislative history may not be entirely clear, we conclude that Congress intended for the Guidelines to be used both for offenses commenced after November 1, 1987 and offenses begun before but" }, { "docid": "15035220", "title": "", "text": "of convicting a person and incarcerating them in a federal institution, just as many states have done. See, e.g., I.L.C.S. § 5/5-9-1 (Smith-Hurd 1995); Wis.Stat. §§ 939.12 & 973.05 (1995). Thus, appellants’ argument that § 7301 is to be interpreted as restricting a sentencing judge’s power to impose a fine on an indigent inmate is not persuasive. If Sanchez and Vargas wish to persist in their arguments, they should take them to the halls of Congress. Congress enacts legislation; we the court merely interpret it. 3. Duration of Installment Payments Sanchez and Vargas also argue that their fines were improperly imposed because the installment period for repayment of the loan exceeded the suggested twelve month limit described in § 5E1.2(g) of the Sentencing Guidelines, and is contrary to the Sentencing Reform Act. However, the Act, 18 U.S.C. § 3572 provides: (d) A person sentenced to pay a fine or other monetary penalty shall make such payment immediately, unless, in the interr est of justice, the court provides for payments on a date certain or in installments. If the court provides for payment in installments, the installments shall be in equal monthly payments over the period provided by the court, unless the court establishes another schedule. If the judgment permits other than immediate payment, the period provided for shall not exceed five years, excluding any period served by the defendant as imprisonment for the offense. (Emphasis added). Congress’s language makes clear the fact that district judges have the discretion to fashion installment payments that extend beyond the twelve month suggestion contained in U.S.S.G. § 5E1.2(g). Courts may provide for incremental' payment schedules which have a duration of up to the number of years in confinement plus the first five years after release. When U.S.S.G. § 5E1.2 is read in conjunction with the Sentencing Reform Act, it becomes apparent that the immediate payment of the entire amount of an imposed fine is preferred over installment payments because payment of the entire amount immediately upon the imposition of the sentence no doubt advances the punitive goals of the Guideline’s provisions calling for fines." }, { "docid": "15035204", "title": "", "text": "defendant’s argument that the district judge abused his discretion when he refused to grant a two-level reduction for acceptance of responsibility is without merit. B. FINES Vargas and Sanchez both appeal the district court’s order directing that their fines be paid out of their prison earnings. The principle argument advanced by the appellants is that the imposition of fines on indigent inmates is a violation of one of the fundamental tenets of the Sentencing Reform Act (18 U.S.C. §§ 3551, et seq.) and the Sentencing Guidelines, that of reducing disparity in sentences for conduct similar in nature. According to the defendants, the basis for this disparity is the widely differing levels of compensation earned by inmates employed while in the prison system because under the prison compensation system, two inmates convicted of the same crime and assessed identical fines could suffer disparate economic treatment if they were assigned to jobs with different compensation levels. The inmate who is fortuitous enough to obtain one of the higher paying prison jobs will suffer considerably less of a hardship than the inmate who is required to pay the identical fine out of lesser earnings. Because the trial judge at the time of sentencing is in no position to accurately predict an inmate’s future prison work assignment and earnings, Vargas and Sanchez argue that it should be “impermissible” for a sentencing judge to impose a fine on an indigent defendant to be paid from his or her prison wages because the absence of actual knowledge regarding the inmate’s future prison earnings makes disparate treatment of similarly situated indigent defendants unavoidable. Accordingly, Vargas and Sanchez argue that district judges should be prohibited from imposing fines on indigent defendants to be paid from their prison wages until the Sentencing Commission promulgates guidelines to guide the process. We do not agree that the sentencing judge’s discretion should be so limited. Under the Guidelines, the mandatory minimum fine for Vargas’s offense level is $15,000 and the mandatory minimum for Sanchez’s offense level is $17,500. U.S.S.G. § 5E1.2(c)(3). Sanchez and Vargas were both explicitly- informed about the possible fines" }, { "docid": "425783", "title": "", "text": "assessing the costs of imprisonment (in addition to other fines) deters criminal conduct”. Spiropoulos, 976 F.2d at 165. This is equivalent to asserting that higher fines do not increase deterrence, a proposition that leaves us flabbergasted. The system of penalties under the Guidelines is constructed on the belief that higher fines, and longer sentences of imprisonment, are more effective deterrents. A large body of evidence supports this intuition. Daryl A. Heilman & Neil O. Alper, Economics of Crime: Theory and Practice (2d ed. 1990); David J. Pyle, The Economics of Crime and Law Enforcement (1983); William N'. Trumbull, Estimations of the Economic Model of Crime Using Aggregate and Individual Level Data, 56 S.Econ.J. 423. (1989). Guideline 5E1.2(i) increases the fines imposed on defendants, and therefore increases deterrence. A carefully thought out theory of criminal penalties proposed by Professor Gary Beck er-a theory that was cited when Becker received the 1992 Nobel Prize in Economics-includes the costs of incarceration (and the other costs of the criminal justice system) as part of the socially optimal punishment for crime. See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J.Pol.Eeon. 169 (1968). For recent elaborations see, e.g., Lucian Arye Bebehuk & Louis Kaplow, Optimal Sanctions When Individuals Are Imperfectly Informed about the Probability of Apprehension, 21 J.Leg.Stud. 365 (1992); Michael K. Block, Optimal Penalties, Criminal Law and the Control of Corporate Behavior, 71 B.U.L.Rev. 395 (1991); John R. Lott, Jr., An Attempt at Measuring the Total Monetary Penalty from Drug Convictions, 21 J.Leg.Stud. 159 (1992); A. Mitchell Polinsky & Steven Shavell, Enforcement Costs and the Optimal Magnitude and Probability of Fines, 35 J.L. & Econ. 133 (1992). (Professor Block was a member of the Sentencing Commission \"when § 5E1.2(i) was adopted, and Professor Lott was the Commission’s Chief Economist.) Nothing in § 3553 or § 994 rejects an approach to deterrence that includes the costs of custody among the considerations that influence the selection of a fine. Two other considerations troubled the third circuit. First, that court observed that Congress has instructed the Commission to “study the feasibility of requiring prisoners incarcerated" }, { "docid": "15035205", "title": "", "text": "hardship than the inmate who is required to pay the identical fine out of lesser earnings. Because the trial judge at the time of sentencing is in no position to accurately predict an inmate’s future prison work assignment and earnings, Vargas and Sanchez argue that it should be “impermissible” for a sentencing judge to impose a fine on an indigent defendant to be paid from his or her prison wages because the absence of actual knowledge regarding the inmate’s future prison earnings makes disparate treatment of similarly situated indigent defendants unavoidable. Accordingly, Vargas and Sanchez argue that district judges should be prohibited from imposing fines on indigent defendants to be paid from their prison wages until the Sentencing Commission promulgates guidelines to guide the process. We do not agree that the sentencing judge’s discretion should be so limited. Under the Guidelines, the mandatory minimum fine for Vargas’s offense level is $15,000 and the mandatory minimum for Sanchez’s offense level is $17,500. U.S.S.G. § 5E1.2(c)(3). Sanchez and Vargas were both explicitly- informed about the possible fines they were facing in their signed plea agreements which provided: [T]he total potential sentence carried under the counts to which [Sanchez] will plead guilty is a mandatory term of at least fifteen years’ imprisonment and up to life imprisonment, as well as a $4,250,000 fine, a term of supervised release, and any restitution ordered by the Court. [T]he total potential sentence carried under the count to which [Vargas] will plead guilty is a mandatory term of at least ten years’ imprisonment and up to life imprisonment, as well as a $4,000,000 fine, a term of supervised release, and any restitution ordered by the Court. Neither party offered any objections to the maximum fines they might face. Furthermore, both defendants acknowledged that al though the government would recommend the mandatory minimum sentences, that: the sentencing judge is neither a party to nor bound by this Agreement and, subject to the limitations of the sentencing guidelines, may impose the maximum penalties as set forth in [the paragraph] above. The defendant further acknowledges that if the court does" }, { "docid": "15035219", "title": "", "text": "on indigent inmates. In support of this argument, the defendants cite to Congressional legislation enacted several years after the Guidelines instructing the Sentencing Commission to “study the feasibility of requiring prisoners incarcerated in federal correctional institutions to pay some or all of the costs incident to the prisoner’s confinement.” Section 7301 of Pub.L. 100-690, 102 Stats. 4463 (1988). Sanchez and Vargas somehow interpret this language as indicating a Congressional intent that fines not be imposed on indigent inmates until such time as the Sentencing Commission conducts empirical feasibility studies. Notwithstanding the observation that § 7301 concerns payment of the costs of incarceration and the case at bar deals with criminal fines, this court has previously interpreted § 7301 as expansive in scope relative to the sentencing guidelines, not restrictive. United States v. Turner, 998 F.2d 534, 537 (7th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 639, 126 L.Ed.2d 598 (1993). The cost of imprisonment is extremely high, and certainly it is not improper for the government to attempt to recoup some of the costs of convicting a person and incarcerating them in a federal institution, just as many states have done. See, e.g., I.L.C.S. § 5/5-9-1 (Smith-Hurd 1995); Wis.Stat. §§ 939.12 & 973.05 (1995). Thus, appellants’ argument that § 7301 is to be interpreted as restricting a sentencing judge’s power to impose a fine on an indigent inmate is not persuasive. If Sanchez and Vargas wish to persist in their arguments, they should take them to the halls of Congress. Congress enacts legislation; we the court merely interpret it. 3. Duration of Installment Payments Sanchez and Vargas also argue that their fines were improperly imposed because the installment period for repayment of the loan exceeded the suggested twelve month limit described in § 5E1.2(g) of the Sentencing Guidelines, and is contrary to the Sentencing Reform Act. However, the Act, 18 U.S.C. § 3572 provides: (d) A person sentenced to pay a fine or other monetary penalty shall make such payment immediately, unless, in the interr est of justice, the court provides for payments on a date certain or in" }, { "docid": "4240026", "title": "", "text": "a punitive fine under 5E 1.2(c) must have been imposed initially. We respectfully disagree with the reasoning of these cases: As the district court noted, it makes little sense to impose a token punitive fine under 5E 1.2(c) merely to be able to impose a fine representing the government’s costs. The cases cited above compel the court, if it imposes a fine of $1 under 5E1.2(c), to add a fine for incarceration, yet if no punitive fine is levied the defendant cannot be committed to pay the costs of incarceration. We do not think that the Sentencing Commission could have possibly intended such a result. If one needs a technical argument to support this commonsense conclusion, one could say that the imposition of a fine in the amount of zero dollars furnishes the required statutory predicate for an “additional” fine compensating the government for the costs of supervision. See United States v. Sellers, 42 F.3d 116, 119 (2d Cir.1994); United States v. Favorito, 5 F.3d 1338, 1340 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1374, 128 L.Ed.2d 50 (1994); United States v. Turner, 998 F.2d 534, 538 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 639, 126 L.Ed.2d 598 (1993). A less technical argument in support of the district court’s holding can be premised on the observation that the Guidelines require that “[t]he court shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine.” U.S.S.G. § 5E1.2(a). Conceptually, therefore, in every case the district court should select a fine under § 5E 1.2(e), decide whether to add a costs fine under § 5E1.2(i), and then appropriately reduce the total fine for inability to pay under § 5E1.2(f). Turner, 998 F.2d at 538. Under this scheme the characterization of the costs fine as an “additional” fine makes perfect sense. We conclude therefore that the district court did not err in imposing a fine under 5E1.2(i) without imposing a fine under 5E1.2(e). Aguilera also maintains that the Guidelines were incorrectly" }, { "docid": "15035222", "title": "", "text": "U.S.S.G. § 5E1.2(e) (“The amount of the fine should always be sufficient to insure that the fine, taken together with other sanctions imposed, is punitive”). Thus, the provision allowing for installment payments of the fine is to be extended to a defendant only when he is able to demonstrate that a lump sum has an “unduly severe impact” on him. U.S.S.G. § 5E1.2(g). The language of the passages cited above makes it abundantly clear that the purpose of the short duration installment period of twelve months was to make payment by installment as punitive as possible and to ensure that the fine is collected in a timely fashion. Furthermore, the Guidelines state that the installment period “generally should not” exceed twelve months; however, when payment of the fine over a twelve month period is impractical, and when the defendant faces a lengthy period of incarceration during which he is likely to be earning wages, extension of the installment period is an outcome to be preferred over waiver of. the fíne. Additionally, we have previously examined this provision of the Guidelines and stated that the word “ ‘generally’ is a plastic term,” ie., a term which gives the sentencing judge considerable discretion in fashioning fines, and not one that merits our intervention to carefully scrutinize fine schedules. Gomez, 24 F.3d at 927. The Guidelines specifically authorize the use of an incremental payment schedule and we refuse to vacate the fines merely because the defendants read Congress’ flexible language in a rigid manner. Sanchez’s and Vargas’s next argument is one in which they try to analogize probation to supervised release. Their argument fails for a number of reasons, but most importantly because they try to conflate two distinct punishments that have entirely different theories and goals of punishment. Probation is a “sentence in and of itself,” and is an “alternative to incarceration,” U.S.S.G. § 5B1.1, Introductory Comment (emphasis added), whereas supervised release follows imprisonment. U.S.S.G. § 5D1.1. The two sentence options are mutually exclusive. Therefore, when Vargas and Sanchez argue that because the statutes under which they were convicted do not authorize" }, { "docid": "17121279", "title": "", "text": "over subsection (c) of this section. . Pursuant to 42 U.S.C. § 10601(c)(1)(B), criminal fines are deposited into the Treasury’s Crime Victim Fund up to a maximum of $150 million per fiscal year. The first $2.2 million of any excess goes to the judicial branch for administrative costs, and the remainder goes to the Treasury’s general fund. The fact that the monies collected on the basis of the cost of imprisoning a given criminal are expended to generally benefit the victims of crime and realize the goals of 18 U.S.C. § 3553(a) also snuffs out another of Hagmann’s arguments: section 5E1.2(i) is not premised on the legislative intent of having a criminal pay part or all of the cost of his or her own confinement. See Appellant’s Brief at 31: In 1988 Congress enacted a law requiring the Sentencing Commission \"to study the feasibility” of having federal prisoners pay part or all of the cost of their confinement. Pub.L. [No.] 100-690, § 7301, 100th Cong., 2d Sess., 102 Stat. 4463. There could hardly be clearer evidence that Congress had not, in the Sentencing Reform Act of 1984, already authorized the levying of \"additional fine amounts” for such purposes. Only by treating that legislation on point as entirely nugatory can U.S.Sent.Comm'n Guideline § 5E1.2(i) be supported." }, { "docid": "15035218", "title": "", "text": "except in exceptional circumstances. Clearly, the legislative history and provisions in the Guidelines prove that it is disparity in sentencing that the Sentence Reform Act sought to ameliorate, not “impact” disparity. Therefore, based upon the reasoning, case law and statutes set forth herein, we hold that prison authorities may withdraw money from the wages of indigent prisoners, upon the receipt of a proper court order to do so, in order to pay the inmate’s criminal fines. 2. Guideline Authorization Sanchez’s and Vargas’s next argument is that because imposition of fines on indigent inmates, to be paid during and after confinement, is not expressly authorized in the Guidelines, it should not be left to the district courts “to fashion ingenious devices to reduce the inherently inequitable affect of fines on indigent inmates.” Rather, they argue that it is up to the Sentencing Commission to develop guidelines specifically devised for purposes of fining indigent inmates. In the absence of such guidelines, Vargas and Sanchez contend that it should be “legally impermissible” for district courts to impose fines on indigent inmates. In support of this argument, the defendants cite to Congressional legislation enacted several years after the Guidelines instructing the Sentencing Commission to “study the feasibility of requiring prisoners incarcerated in federal correctional institutions to pay some or all of the costs incident to the prisoner’s confinement.” Section 7301 of Pub.L. 100-690, 102 Stats. 4463 (1988). Sanchez and Vargas somehow interpret this language as indicating a Congressional intent that fines not be imposed on indigent inmates until such time as the Sentencing Commission conducts empirical feasibility studies. Notwithstanding the observation that § 7301 concerns payment of the costs of incarceration and the case at bar deals with criminal fines, this court has previously interpreted § 7301 as expansive in scope relative to the sentencing guidelines, not restrictive. United States v. Turner, 998 F.2d 534, 537 (7th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 639, 126 L.Ed.2d 598 (1993). The cost of imprisonment is extremely high, and certainly it is not improper for the government to attempt to recoup some of the costs" }, { "docid": "17121278", "title": "", "text": "of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. 18 U.S.C.A. § 3553(a) (1985 & Supp.1991). In addition to these goals. Congress provided another six (seven in the case of an organizational defendant) considerations for the court’s determination of a fine amount: (i) the defendant’s finances, (ii) hardship to dependents, (iii) pecuniary loss to victims, (iv) restitution, (v) deprivation of illegal gains, and (vi) the ability to pass on the cost of any fine. See 18 U.S.C.A. § 3572(a) (Supp.1991). . Hagmann would, presumably, accept a fine table carrying significantly higher ranges within the statutory maximum but omitting the cost-of-imprisonment calculation. . U.S.S.G. § 5E1.2(b) (Nov. 1, 1988): (b) Except as provided in subsections (f) and (i) below, or otherwise required by statute, the fine imposed shall be within the range specified in subsection (c) below. If, however, the guideline for the offense in Chapter Two provides a specific rule for imposing a fine, that rule takes precedence over subsection (c) of this section. . Pursuant to 42 U.S.C. § 10601(c)(1)(B), criminal fines are deposited into the Treasury’s Crime Victim Fund up to a maximum of $150 million per fiscal year. The first $2.2 million of any excess goes to the judicial branch for administrative costs, and the remainder goes to the Treasury’s general fund. The fact that the monies collected on the basis of the cost of imprisoning a given criminal are expended to generally benefit the victims of crime and realize the goals of 18 U.S.C. § 3553(a) also snuffs out another of Hagmann’s arguments: section 5E1.2(i) is not premised on the legislative intent of having a criminal pay part or all of the cost of his or her own confinement. See Appellant’s Brief at 31: In 1988 Congress enacted a law requiring the Sentencing Commission \"to study the feasibility” of having federal prisoners pay part or all of the cost of their confinement. Pub.L. [No.] 100-690, § 7301, 100th Cong., 2d Sess., 102 Stat. 4463. There could hardly be clearer" }, { "docid": "15035234", "title": "", "text": "prevailing hourly rate.” 28 C.F.R. § 545.27(a). . In Turner, we concluded that § 7301 did not restrict the Sentencing Commission to merely \"studying” the feasibility of requiring inmates to pay for some or all of the costs of their incarceration. In so holding, we noted that § 7301 did not \"subtract from any of the Commission’s permanent legislation, and we all know the canon that repeals by implication are disfavored.” 998 F.2d at 537. .U.S.S.G. § 5E1.2(g) provides: If the defendant establishes the payment of the fine in a lump sum would have an. unduly severe impact on his or her dependents, the court should establish an installment schedule for payment of the fíne. The length of the installment schedule generally should not exceed 12 months, and shall not exceed the maximum term of probation authorized for the offense. The defendant should be required to pay a substantial installment at the time of the sentencing. If the court authorizes a defendant sentenced to probation or supervised release to pay a fine on an installment schedule, the court shall require as a condition of probation or supervised release that the defendant pay the fine according to the schedule. The court also may impose a condition prohibiting the defendant ■ from incurring new credit charges or opening additional lines of credit unless he is in compliance with the payment schedule. . We also note that should the defendants fail to pay the remainder of their fines during the period of supervised release, the United States may have a lien on the defendants' property imposed in its favor until the fine is paid pursuant to 18 U.S.C. §§ 3612 & 3613. . Congress amended § 3572(d) in 1987 with Public Law 100-185. Pub.L. 100-185, § 7, Dec. 11, 1987, 101 Stat. 1280. The legislative history accompanying this act indicates that the law was changed from the passive to the active voice to insure that when the judge is silent regarding the time of payment for an imposed fine the fine would be due immediately. 1987 U.S.Code Cong, and Adm.News, p. 2137, at" }, { "docid": "15035233", "title": "", "text": "§ 545.23(d) provides: In making the work and/or program assignment(s), staff shall consider the inmate’s capacity to learn, interests, requests, needs, and eligibility. 28 C.F.R. § 545.50 defines the UNICOR program: Federal Prison Industries, Inc. (UNICOR), provides inmates confined in Bureau of Prison institutions an opportunity to obtain a work assignment within each institution's industrial location. 28 C.F.R. § 545.51 discusses the procedures for placing inmates in the UNICOR program. The regulations require the maintenance of a waiting list from which inmates are to be selected for the UNICOR assignments as they become available. However: (c) The Warden or designee may make an exception to either paragraph ... of this section when there exists a supported need for a specific skill. When this occurs, an inmate with that skill, regardless of position on the list, may be hired to fill the vacancy, at the position’s existing grade level. . \"An inmate who has worked full-time for 12 consecutive months on an institution work assignment is eligible to take a five-day paid vacation at the inmate’s prevailing hourly rate.” 28 C.F.R. § 545.27(a). . In Turner, we concluded that § 7301 did not restrict the Sentencing Commission to merely \"studying” the feasibility of requiring inmates to pay for some or all of the costs of their incarceration. In so holding, we noted that § 7301 did not \"subtract from any of the Commission’s permanent legislation, and we all know the canon that repeals by implication are disfavored.” 998 F.2d at 537. .U.S.S.G. § 5E1.2(g) provides: If the defendant establishes the payment of the fine in a lump sum would have an. unduly severe impact on his or her dependents, the court should establish an installment schedule for payment of the fíne. The length of the installment schedule generally should not exceed 12 months, and shall not exceed the maximum term of probation authorized for the offense. The defendant should be required to pay a substantial installment at the time of the sentencing. If the court authorizes a defendant sentenced to probation or supervised release to pay a fine on an installment" }, { "docid": "15224057", "title": "", "text": "Erves, 880 F.2d 376, 380-81 (11th Cir.), cert. denied sub nom. Villarreal-Farias v. United States, — U.S. -110 S.Ct. 416, 107 L.Ed.2d 381 (1989); United States v. White, 869 F.2d at 827; United States v. Saldivar, 730 F.Supp. 329, 331 (D.Nev.1990); United States v. Amesquita-Padilla, 691 F.Supp. 277, 288 (W.D.Wash.1988). Our reading of 28 U.S.C. § 994(g) and its legislative history leads us to the same conclusion. First, the statute itself states only that the Commission should attempt to “minimize” the Guidelines’ impact on the prison population — not that it maintain the prison population at its present level. In fact, 28 U.S.C. § 994(g) authorizes the Commission to recommend the expansion of prison facilities. Furthermore, the legislative history indicates that 28 U.S.C. § 994(g) was not intended to “limit the Sentencing Commission in recommending guidelines that it believes will best serve the purposes of sentencing.” S.Rep. at 175, 1984 U.S.Code Cong. & Admin.News 3358. In light of these factors, we find that the expected 10% increase in the federal prison population over a 10-year period does not violate the congressional mandate of 28 U.S.C. § 994(g). 3. Supervised Release Appellant also argues that the Sentencing Commission’s imposition of mandatory supervised release following incarceration for any person convicted of a felony violates its congressional mandate. We, like the district courts which have addressed this question, find no merit in this argument. See Amesquita-Padilla, 691 F.Supp. at 288-89 (upholding Guidelines against this challenge); Saldivar, 730 F.Supp. at 331 (same). Congress instructed the Sentencing Commission that it make “a determination whether a sentence to a term of imprisonment should include a requirement that the defendant be placed on a term of supervised release after imprisonment, and, if so, the appropriate length of such a term.” 28 U.S.C. § 994(a)(1)(C). In doing so, Congress did not specify whether the Commission was to create a discretionary structure, a quasi-discretionary structure, or a mandatory structure. Id. Accordingly, the Commission’s establishment of mandatory supervised release, while not particularly magnanimous, was “sufficiently reasonable” in responding to 28 U.S.C. § 994(a)(1)(C). See Guidelines Manual §§ 5D1.1-1.3. 4. Fines" }, { "docid": "15035217", "title": "", "text": "ends up with significantly higher wages than the other. Both were sentenced to identical periods of confinement, neither defendant was fined, yet a disparate impact has resulted because one defendant has earned more money for his account than the other while enjoying all the amenities and conveniences this additional money provides. Note that this hypothetical encompasses the disparate impact solution proposed by the appellants in this case, elimination of the fine, yet the two defendants still experience a disparate economic impact. Disparate impacts of varying degrees are unavoidable. The appellants cite no authority for then-theory that disparate impacts are impermissible under the Guidelines. In fact, if we were to follow the defendants’ argument to its logical conclusion, then the courts could never impose fines because of unavoidable disparities in prison job assignments and individual talents and skills are inevitable. Yet we know that this conclusion is neither accurate nor valid vis a vis the imposition of penalty fines because Congress specifically provided for the payment of fines, in fact it mandated payment of the same except in exceptional circumstances. Clearly, the legislative history and provisions in the Guidelines prove that it is disparity in sentencing that the Sentence Reform Act sought to ameliorate, not “impact” disparity. Therefore, based upon the reasoning, case law and statutes set forth herein, we hold that prison authorities may withdraw money from the wages of indigent prisoners, upon the receipt of a proper court order to do so, in order to pay the inmate’s criminal fines. 2. Guideline Authorization Sanchez’s and Vargas’s next argument is that because imposition of fines on indigent inmates, to be paid during and after confinement, is not expressly authorized in the Guidelines, it should not be left to the district courts “to fashion ingenious devices to reduce the inherently inequitable affect of fines on indigent inmates.” Rather, they argue that it is up to the Sentencing Commission to develop guidelines specifically devised for purposes of fining indigent inmates. In the absence of such guidelines, Vargas and Sanchez contend that it should be “legally impermissible” for district courts to impose fines" }, { "docid": "15035210", "title": "", "text": "fine” to allow for incremental payment. U.S.S.G. § 5E1.2(g). The guidelines also afford the district court the option of imposing a reduced fine or an alternative punishment to a fine under certain other limited circumstances. U.S.S.G. § 5E1.2(f). Because we are in agreement with the heavy burden a defendant must bear before he is absolved of having to pay the criminal fines imposed, we observed in Gomez that the Inmate Financial Responsibility Program, 28 C.F.R. §§ 545.10 & 545.11, while permitting prisoners to retain the first half of their earned prison wages, 28 C.F.R. § 545.11(b)(2), specifically mandates that the other half of their earnings are assessable for satisfaction of alimony obligations, civil debts, and fines. 28 C.F.R § 545.11(a)(3). Accordingly, we held that [n]either the text of the regulations nor any of defendants’ argument suggests that funds available to pay civil debts should be unavailable to pay criminal debts. Prison ers have no inherent right to chocolate bars and other snacks; we have accordingly held that trust accounts may be tapped to pay restitution. Just so with fines. Gomez, 24 F.3d at 927 (citing House, 808 F.2d 508, and United States v. Tosca, 18 F.3d 1352, 1355 (6th Cir.1994)). Notwithstanding our decision in Gomez, Vargas and Sanchez argue that prison wage garnishment for the purpose of making an indigent defendant pay a criminal fine is improper and contrary to the intent of the Guidelines. In essence, the appellants are trying to limit the scope of Gomez, and argue that our holding in that case is not applicable to indigent defendants. We reject their attempt to narrowly proscribe the very clear language of Gomez, and hold that the principle enunciated therein, namely that prison wages can be garnished to pay prisoners’ fines, is applicable to Vargas and Sanchez. 1. Sentence Impact Disparity The defendants initially contend that prison wage garnishment has the potential to produce “disparate impacts” on inmates sentenced for committing identical offenses. According to the defendants, this disparity arises from the sliding scale of inmate wages. Thus, for example, two inmates serving identical terms of confinement and having" }, { "docid": "22326839", "title": "", "text": "convicted of misdemeanors, however, may be permitted to go at large until the fine is paid. N. J. Stat. Ann. §2A: 166-15. Moreover, felony defendants indigent for transcript purposes may be able to obtain the money to pay a fine and thus avoid confinement in an institution and the reimbursement obligation that such confinement, entails. Moreover, in view of another New Jersey statute, it appears that wages may not be withheld from every inmate who would otherwise be indebted to a county. N. J. Stat. Ann §30:4-92 provides in relevant part: “Compensation for inmates of correctional institutions may be in the form of cash or remission of time from sentence or both.” Hence, some inmates may not receive cash in exchange for their labor. Other inmates, of course, may not be assigned to work. The reimbursement statute appears to allow for these variations insofar as it provides that “. . . the county treasurer shall be reimbursed from any institutional earnings of such person.” (Emphasis supplied.) See N. J. Stat. Ann. §2A:168-2; N. J. Stat. Ann. §2A:167-8. See, Kamisar & Choper, The Right, to Counsel in Minnesota: Some Field Findings and Legal-Policy Observations, 48 Minn. L. Rev. 1, 23-24: “The practice of certain judges in some of [the counties studied] and of all judges in others is to require, as a condition of probation, that the convicted indigent repay the county’s expenditure for his lawyer. The probation officer usually informs the judge of the amount the defendant should be expected to repay each week. The survey indicates that this condition of probation is rarely, if ever, violated.” See N. J. Stat. Ann. §2A:17-50. Mr. Justice Harlan, dissenting. New Jersey recoups the cost of trial transcripts furnished to indigents out of prison allowances made to incarcerated prisoners, but does not seek reimbursement from parolees or convicted defendants not imprisoned. The Court holds this differentiation to violate the Equal Protection Clause. I am unable to agree. Under conventional equal-protection standards which disapprove only irrational and arbitrary classifications, the statute is plainly valid. See McLaughlin v. Florida, 379 U. S. 184, 190-191; McGowan" } ]

[ { "docid": "22326290", "title": "", "text": "He fails to note, however, that one of the agents testified that he looked “scared” and “shocked,” and the insurance agent testified that Martinez-Lugo looked nervous while in her office. And although the marijuana in the tires had deteriorated, suggesting that appellant did not put it there, this does not negate that he could have known of its presence. In short, because there was sufficient evidence from which the jury could have inferred guilty knowledge, it is not necessary that every reasonable hypothesis of innocence be excluded. See Ortega Reyna, 148 F.3d at 543. The evidence was sufficient to convict. Martinez-Lugo’s second contention is that his sentence should be vacated because it was imposed pursuant to a mandatory application of the sentencing Guidelines. Although he couches his argument in terms of a Sixth Amendment violation and “Booker ” error, Martinez-Lugo’s sentence was enhanced based only on the amount of marijuana found in the tires of the tractor-trailer, i.e., the amount with which he was charged and found guilty by the jury. Technically, this is a “Fanfan” error, not a Booker error. See United States v. Villegas, 404 F.3d 355, 364 (5th Cir.2005) (discussing the distinction between the two types of error asserted by the respondents in Booker); see also United States v. Mares, 402 F.3d 511, 520, n. 9 (5th Cir.2005) (same). We review this contention, unpreserved in the district court, under a plain error standard. See Mares, 402 F.3d at 520. The error here satisfies the first two prongs of that standard by being both “plain” and “error.” The third prong of plain error analysis considers whether the error affected Martinez-Lugo’s substantial rights. Id. In United States v. Olano, the Supreme Court held that the standard for determining whether an error affects a litigant’s substantial rights requires a showing that the error “must have affected the outcome of the district court proceedings.” 507 U.S. 725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993). Martinez-Lugo argues that the district court’s application of the Guidelines as mandatory, notwithstanding the absence of Booker error, is a “structural error” that is “insusceptible”" } ]

[ { "docid": "22317014", "title": "", "text": "ANDERSON, Circuit Judge: The panel’s opinion in this case issued on August 18, 2004, and was published in 381 F.3d 1070 (11th Cir.2004). A petition for rehearing en banc was filed. We construe it also as a petition for rehearing by the original panel. We now grant panel rehearing, vacate the previous opinion published in 381 F.3d 1070, and substitute in its stead the instant opinion. In this opinion, we focus on Duncan’s sentencing argument, reviewing for plain error in light of the Supreme Court’s decision in United States v. Booker, 542 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We conclude that Duncan cannot overcome the third prong of plain error analysis because he cannot show an error that affectéd his substantial rights. See United States of America v. Rodriguez, 398 F.3d 1291, (11th Cir.2005). In his initial brief on appeal, Duncan argued that the jury and not the district court judge should have made the determination of the type and quantity of drugs involved in a drug conspiracy for the purpose of sentencing. After the initial briefing in this case, the Supreme Court decided Blakely v. Washington, 542 U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and accordingly, we ordered supplemental briefing on the issue.' In Blakely, the Supreme Court applied the rule set out in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and held that the imposition—based solely on the sentencing judge’s factual findings — of a sentencing enhancement above the range indicated in the State of Washington’s Sentencing Reform Act violated Blakely’s Sixth Amendment rights because the facts supporting the findings were neither admitted by Blakely nor found by a jury. In our initial opinion, we reviewed Duncan’s sentence for plain error and concluded that the district court could not have committed “plain” error by failing to apply Blakely in the context of the Federal Sentencing Guidelines (“Guidelines”). After our initial opinion, the Supreme Court decided United States v. Booker, — U.S. -, 135 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Supreme Court issued two" }, { "docid": "14321606", "title": "", "text": "Opinion for the Court filed by Chief Judge GINSBURG. GINSBURG, Chief Judge. Defendant Lee Ayers was convicted by a jury of unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). On appeal he challenges his sentence, which was imposed after the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but prior to its decision in United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court, aware that the United States Sentencing Guidelines were vulnerable after Blakely, imposed a sentence of 53 months, near the low end of the applicable guidelines range (51-63 months), and announced an alternative but identical sentence “should the guidelines be struck down and ruled unconstitutional in their totality.” Ayers anticipated the actual result in Booker and, believing the record did not contain all the evidence relevant to a non-guidelines sentence, asked that he be permitted to supplement the record with additional mitigating evidence, which request the court denied. Ayers challenged under the Sixth Amendment to the Constitution of the United States the mandatory enhancement of his sentence (a two-level enhancement of his base offense level under U.S.S.G. § 2K2.1(b)(4) for a stolen firearm) based upon facts not proven' to a jury beyond a reasonable doubt. In light of the Supreme Court’s decision in Booker, the Government now concedes the district court’s constitutional error. The Government argues, however, that the error was harmless in that it can show “beyond a reasonable doubt that the error complained of did not contribute to the [sentence] obtained.” See United States v. Coumaris, 399 F.3d 343, 351 (D.C.Cir.2005) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)) (alteration in original); cf. United States v. Coles, 403 F.3d 764, 767 (D.C.Cir.2005) (where defendant did not preserve constitutional error, review is for plain error and defendant must show prejudice). Under Booker, the error “is the mandatory use of the Guidelines enhancement, not the fact of the enhancement.” Coles, 403 F.3d at 769 (quoting United States" }, { "docid": "23499046", "title": "", "text": "a prior conviction”); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.2005) (stating that Booker indicates the remedial scheme should apply \"to those defendants, like Fanfan, who had been sentenced under the mandatory regime without suffering a constitutional violation”); United States v. Hamm, 400 F.3d 336, 339 (6th Cir.2005) (finding plain error although defendant's sentence was based upon facts admitted in his guilty plea \"[g]iven that the Supreme Court has held that the Guidelines are now discretionary”); United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir.2005) (\"it was Booker error for the district court to sentence Shelton under a mandatory guidelines scheme, even in the absence of a Sixth Amendment enhancement violation''); United States v. Williams, 399 F.3d 450, 453-54 (2d Cir.2005) (deciding that the Supreme Court implicitly ruled, by its remand of the sentence imposed on Fanfan, that a sentencing judge commits error by mandatorily imposing the Guidelines even though it was based only on facts found by the jury); United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.2005) (determining that in light of Booker the first two plain error requirements — an error exists and that error is clear at the time of appeal — are satisfied whenever district court has treated the Guidelines as mandatory at the time of sentencing). EASTERBROOK, Circuit Judge, dissenting from the decision not to hear these appeals en banc. These cases pose one of the transition problems in implementing United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). What happens when there has not been a violation of the sixth amendment — because, for example, the only consideration that raised the sentence is a prior conviction, see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), or the defendant has waived his right to submit any dispute to the jury, see Shepard v. United States, — U.S. —, 125 S.Ct. 1254, 1263 n. 5, 161 L.Ed.2d 205 (2005); Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 2541, 159 L.Ed.2d 403 (2004)—but the district judge treated the Guidelines as conclusive?" }, { "docid": "22570448", "title": "", "text": "Caldwell, 219 F.3d 1186, 1193-94 (10th Cir.2000) (noting that the relatively minor nature of a prior offense was a factor to consider under § 4A1.3 but was not, standing alone, a sufficient basis for departure). The district court’s error was therefore harmless. c. Combination of Factors Sierra-Castillo also argued before the district court that he was entitled to a downward departure based on the combination of his family circumstances and criminal history. Combining two invalid departure grounds, however, cannot give rise to a valid ground for departure. See United States v. Contreras, 180 F.3d 1204, 1213 (10th Cir.1999). B. Booker Error In supplemental briefing, Sierra-Castillo argues that his sentence under the Guidelines violates the Supreme Court’s holding in United States v. Blakely, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Supreme Court in Booker held that mandatory application of the Sentencing Guidelines violates the Sixth Amendment when judge-found facts, other than the fact of prior convictions, are employed to enhance a defendant’s sentence. Booker, 125 S.Ct. at 755-56. The only Guidelines enhancement applied to Sierra-Castillo’s sentence was a sixteen-level enhancement based on his prior conviction for attempted sexual assault. As this court noted in United States v. Gonzalez-Huerta, a Guidelines enhancement based on the fact of a prior conviction does not implicate the' Sixth Amendment concerns on which the holding in Booker was based. 403 F.3d 727, 738 (10th Cir.2005) (en banc). Nevertheless, Sierra-Castillo’s sentence does implicate Booker’s remedial holding, making the Guidelines advisory in all cases pending on direct review. See id. at 731-32. Because Sierra-Castillo did not raise a challenge to the constitutionality of his sentence before the district court, his argument on appeal is subject to review for plain error. United States v. Cotton, 535 U.S. 625, 629-31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); Gonzalez-Huerta, 403 F.3d at 732. This court has discretion to recognize plain error that was not raised in the district court when (1) there is an error; (2) that is plain; (3) that affects" }, { "docid": "22453868", "title": "", "text": "Morris, 131 F.3d 1136, 1140 (5th Cir.1997) (upholding the district court’s application of an enhancement for perjury under U.S.S.G. § 3C1.1 where the district court had found that the defendant “was untruthful at trial with respect to material matters in this case”). IX. Validity of Sentencing Enhancements Creech also argues that his sentence is improper under Blakely and Booker because the judge relied on facts not found by a jury beyond a reasonable doubt in calculating his sentence under the U.S. Sentencing Guidelines. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because he did not raise this issue below, we review for plain error. - See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005). Creech’s base offense level for each of Counts 1 (conspiracy) and 4-7 (mail fraud) was calculated at 20. See U.S.S.G. § lB1.2(d). , The district court applied a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1 and a two-level enhancement for Creech’s role in the conspiracy under U.S.S.G. § 3Bl.l(c). Under the Guidelines, the resulting offense level of 24, when combined with a Criminal History Category I, yielded a range of 51 to 63 months in prison. The district court assessed a. sentence of 51 months for each of Counts 1 and 4-7, to run concurrently. Finally, the judge imposed a 10 year sentence for Creech’s conviction on Count 3 (using fire to commit a felony), to run consecutive to the 51 months already assessed as required by 18 U.S.C. § 844(h). In total, Creech was sentenced to 171 months imprisonment. We may only correct any error in Creech’s sentence if “there is (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met an appellate court may then exercise its discretion to notice a forfeited error but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 520 (citations and quotation marks omitted). The first prong of the" }, { "docid": "4508132", "title": "", "text": "jury. Patterson argues that the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), ruling that a prior conviction is a sentencing factor for the court rather than a fact issue for the jury, has been undermined by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). To the contrary, the Supreme Court reaffirmed the Almendarez-Torres principle in Booker, 125 S.Ct. at 756, noting that the fact of “a prior conviction” need not be admitted by the defendant or proved to a jury beyond a reasonable doubt. See also Shepard v. United States, — U.S. -, 125 S.Ct. 1254, 1264, 161 L.Ed.2d 205 (2005) (Thomas J., concurring) (noting that the Court has not reconsidered its decision in Almendarez-Torres). Patterson also ar gues that categorizing a prior conviction as a “violent felony” requires a factual finding beyond simply finding a prior conviction. But we previously have rejected the argument that the nature of a prior conviction is to be treated differently from the fact of a prior conviction. United States v. Kempis-Bonola, 287 F.3d 699, 703 (8th Cir.), cert. denied, 537 U.S. 914, 123 S.Ct. 295, 154 L.Ed.2d 196 (2002); United States v. Davis, 260 F.3d 965, 969 (8th Cir.2001), cert. denied, 534 U.S. 1107, 122 S.Ct. 909, 151 L.Ed.2d 876 (2002). Once the sentencing court determines that a prior conviction exists, the characterization of that conviction as a violent felony is a legal matter for the court. United States v. Marcussen, 403 F.3d 982, 984 (8th Cir.2005); United States v. Nolan, 397 F.3d 665, 667 n. 2 (8th Cir.2005). The District Court did not commit a Sixth Amendment violation, let alone plain error, when it sentenced Patterson as an armed career criminal based on his prior convictions for violent felonies. As his second ground for appealing his sentence, Patterson asserts that the District Court committed plain error in sentencing him under a mandatory guidelines scheme. As Patterson notes, the Supreme Court in" }, { "docid": "23620138", "title": "", "text": "hunting, Erhart responded “I don’t know [ ], I don’t think it works for ducks though. I think you need a longer barrel though.” Sufficient evidence supported the finding that Erhart knew that the gun he possessed was an illegal sawed-off shotgun. We affirm Erhart’s conviction under § 5861(d). B. Booker Error After his case was submitted for oral argument, but before we issued an opinion, the United States Supreme Court issued its ground shifting decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Blakely decision was extended to the United States Sentencing Guidelines in United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered the Guidelines advisory. Nonetheless, the Court explained that a Booker claim not argued at the district court would be subject to application of the plain error test. Booker, 125 S.Ct. at 769. In United States v. Pirani, 406 F.3d 543, 550 (2005) (en banc), we held that there must be “a specific reference to Apprendi or Blakely or the Sixth Amendment” to preserve a Booker claim. Under our plain error analysis, Erhart is required to show “a ‘reasonable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence” to show that his substantial rights were affected. Id. at 552 (applying the third prong of the plain error test found in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). In this case, Erhart did not argue Ap-prendi Blakely, or the Sixth Amendment to the district court, and, thus, we review his Booker argument for plain error. Nothing in the record indicates that the district court would have given Erhart a lesser sentence had it viewed the Guidelines in an advisory capacity. See Pirani, 406 F.3d at 553. As such, Erhart’s Booker claim fails. C. Loss Determination Erhart argues next that the district court erred in setting the fraud rate at seventy-five percent. Specifically he argues that the court discounted all evidence regarding the fraud rate and" }, { "docid": "5893511", "title": "", "text": "of the district court. IV. Prior to oral argument in this case, the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and we granted leave to the parties to file supplemental briefs on the effect of Blakely on Monnier’s sentence. We now address Monnier’s sentencing arguments in the light of the post-Blakely decisions in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Pirani, 406 F.3d 543, (8th Cir.2005) (en banc). Because Monnier did not raise a Blakely or Booker challenge to the enhancement at sentencing, we review for plain error. Pirani, 406 F.3d at 549. Monnier challenges the two-level upward adjustment that he received for obstruction of justice. To resolve this challenge, we conduct plain error review under the four-part test of United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Pursuant to that test, before we can correct an error not raised at trial, “there must be (1) error, (2) that is plain, and (3) that affects substantial rights. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).” If all three conditions are met, we may remedy the error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. The district court’s enhancement for obstruction of justice was erroneous in light of Booker because it was imposed on the basis of judge-found facts in a mandatory guidelines regime. In these circumstances, the first two Olano factors are satisfied. See Pirani, 406 F.3d at 550. Whether the error affected Monnier’s substantial rights is another matter. To satisfy this factor, “the defendant must show a ‘reasonable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.” Id. at 552. Absent the upward adjustment, Monnier would have been sentenced at an offense level of 38, with a corresponding sentencing range of 292-365 months. With the adjustment, his offense level of 40 resulted in a range of" }, { "docid": "22131391", "title": "", "text": "MARCUS, Circuit Judge: Miguel Orduno-Mireles appeals his 46-month sentence, imposed after he pled guilty to illegally reentering the United States after being deported subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal, he presents the following arguments: (1) the district court erred when it found that he previously was deported after a conviction for a felony that is a “crime of violence,” thus qualifying him for a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A), and (2) the § 2L1.2(b)(l)(A) enhancement was unconstitutional because it was based on facts that were neither charged in his indictment nor proven to a jury, in violation of Blakely v. Washington, 542 U.S. — , 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which extended to the federal Sentencing Guidelines recently in United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We review de novo a district court’s determination that a prior conviction qualifies as a crime of violence for purposes of an enhancement under U.S.S.G. § 2L1.2(b)(1)(A). United States v. Wilson, 392 F.3d 1243, 1245 (11th Cir.2004). As for Orduno-Mireles’s Blakely/Booker argument, since he raises it for the first time of appeal, we review the issue only for plain error. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993); United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005) (applying plain error review to newly raised Blakely/Booker claim). We will correct plain error only where (1) there is an error; (2) the error is plain or obvious; (3) the error affects the defendant’s substantial rights in that it was prejudicial and not harmless; and (4) the error seriously affects the fairness, integrity, or public reputation of a judicial proceeding. See United States v. Chisholm, 73 F.3d 304, 307 (11th Cir.1996). Upon thorough review of the record, as well as careful consideration of the parties’ briefs, we find no reversible error and therefore we affirm. First, Orduno-Mireles argues that neither of his two prior felony convictions, one-for unlawful sexual activity'with certain minors and the other" }, { "docid": "7465791", "title": "", "text": "Citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Plumman contends the district court’s sentencing findings, based on a preponderance of the evidence, which supported a force enhancement pursuant to section 2A3.1(b)(1), and a custody, care or supervision enhancement pursuant to section 2A3.1(b)(3)(A), coupled with the court’s acceptance of the Presentence Investigation Report’s finding that Plumman engaged in a pattern of sexual activity involving prohibited sexual conduct pursuant to section 4B1.5(b)(l), contravened his Sixth Amendment right to a jury trial. The government argues the force and custody enhancements are supported by sufficient evidence. The government further argues Plumman, at sentencing, failed to raise either a Fifth Amendment Due Process Clause challenge or a Sixth Amendment right to a jury trial challenge. The Supreme Court has held the mandatory Sentencing Guidelines scheme is unconstitutional. United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Guidelines are now “effectively advisory.” Id. at 743, 757. Although Plumman objected to the sentencing enhancements, his objections were not based on a Sixth Amendment challenge, nor did he make specific reference to Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or Blakely. Therefore, we review Plumman’s Booker challenge only for plain error. United States v. Pirani, 406 F.3d 543 (8th Cir.2005) (en banc). “Plain error is error that is ‘plain’ (that is, clear or obvious), ‘affects substantial rights’ (that is, prejudicial) and ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Rashid, 383 F.3d 769, 775 (8th Cir.2004) (citing United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). See also Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). The first two Olano factors are satisfied because “[t]he district court (understandably) committed Booker error by applying the Guidelines as mandatory, and the error is plain.” Pirani, 406 F.3d at 550. In determining whether plain error has affected substantial rights, we focus on “what sentence would have been imposed absent the error.”" }, { "docid": "7407313", "title": "", "text": "at 464, 116 S.Ct. 1480. The prosecutor’s discretion is, of course, subject to constitutional constraints. Id. No evidence in the record shows the prosecutor engaged in misconduct, see supra n. 1., and no constitutional violation occurred here. IV. Third, Defendant argues the district court violated his right to a jury trial under the Sixth Amendment when it adjusted his base offense level upward two levels for obstruction of justice. See U.S.S.G. § 3C1.1; Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Defendant did not raise his Booker argument in the district court. We thus review Defendant’s forfeited Booker error for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727, 732-733 (10th Cir.2005) (en banc). A. In Booker, 125 S.Ct. at 756, the Supreme Court held that, under the Guidelines, the Sixth Amendment requires: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” To remedy the constitutional infirmity inherent in the Guidelines, the Court rendered the Guidelines advisory. Id. at 757. A pre-Booker sentencing court could, therefore, commit “non-constitutional Booker error” or “constitutional Booker error.” Gonzalez-Huerta, 403 F.3d at 731. Non-constitutional Booker error exists if the sentencing court mandatorily applied the Guidelines. Id. Constitutional Booker error exists if the sentencing court relied upon judge-found facts, other than those of a prior conviction, to enhance a defendant’s sentence mandatorily. Id. If forfeited, both types of Booker error are reviewed under the plain-error test. Gonzalez-Huerta, 403 F.3d at 732, ; United States v. Dazey, 403 F.3d 1147, 1173 (10th Cir.2005). As a result, we can only correct an alleged Booker error not raised in the district court if (1) the sentencing court committed an actual error, (2) the error is plain or obvious, (3) the plain error affects substantial rights, and (4) the plain error seriously affects" }, { "docid": "1955362", "title": "", "text": "of drugs. USSG § 4B1.4(b)(3)(A). The court’s findings and subsequent application of the mandatory Guidelines’ enhancement provisions increased his sentence range from a maximum of 210 months to a maximum of 235 months. Taylor was sentenced to 230 months, 20 months above the maximum without the enhancement. Taylor’s objection at sentencing was not based on the Sixth Amendment or other constitutional grounds but on the court’s interpretation of the Guidelines. Only on appeal did Taylor assert his sentence violated his Sixth Amendment rights under Booker because the judge found the relevant facts used to determine the enhancement. Because the judge-found facts increased Taylor’s sentence beyond the maximum allowed by the indictment, this case presents constitutional Booker error. By now, it is axiomatic under plain error review that a court commits error that is plain when it enhances a defendant’s sentence based on judicially-found facts. See, e.g. Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403; Booker, 543 U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621; Gonzalez-Huerta, 403 F.3d at 732. Because the court below did both, Taylor satisfies the first two prongs of plain error analysis. To satisfy the third prong of the plain error test, however, Taylor must demonstrate that the error affected his substantial rights, i.e., that the error disturbed “the outcome of the district court proceedings.” United States v. Cotton, 535 U.S. 625, 632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). We look to see if there is a “reasonable probability” that the error led to a higher sentence under the Guidelines as applied prior to Booker. See Gonzalez-Huerta, 403 F.3d at 733. One way of showing a sentencing error affected substantial rights is to show the district court incorrectly applied the Guidelines. United States v. Smith, 919 F.2d 123, 124 (10th Cir.1990). When a sentencing court misapplies the Guidelines, a defendant’s substantial rights may be affected if there is more than a reasonable probability that such misapplication led to a higher sentence. See Gonzalez-Huerta, 403 F.3d at 739 n. 11 (application of the wrong range under the Guidelines affects a defendant’s substantial rights in the" }, { "docid": "22046572", "title": "", "text": "of the provisions at issue with the rest of § 2L1.2 and with the rest of the Guidelines, and the purpose of the provisions in § 2L1.2 that have express, time limitations, it is clear that § 2L1.2 contains no general time restriction for applicable convictions. Therefore, we have no occasion to apply the rule of lenity. See United States v. Saunders, 318 F.3d 1257, 1264 (11th Cir.2003) (noting that “the interpretation of the sentencing guidelines is governed by traditional rules of statutory interpretation”). III. Camacho next contends that his sentence is unconstitutional in light of the Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United States v. Booker, — U.S. — , 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Camacho argues that his guilty plea encompassed only conduct that was sufficient for the district court to apply the eight-point enhancement for a previous “aggravated felony” pursuant to U.S.S.G. § 2L1.2(b)(1)(C). He asserts that by applying the sixteen-point enhancement under § 2L1.2(b)(1)(A)(ii), the district court violated his Sixth Amendment rights by applying facts that were neither found by a jury beyond a reasonable doubt nor admitted by him in his plea. Because Camacho failed to raise this issue before the district' court, we review only under a plain error standard. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). “An appellate court may not correct an error the defendant failed to raise in the district court unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal citation and quotations omitted). Camacho’s sixteen-level enhancement was based solely on the fact that he had previous convictions.. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court held that the government need not allege in its indictment and need not prove" }, { "docid": "10035958", "title": "", "text": "with five years’ supervised release. On appeal, Cramer makes two arguments against the district court’s upward departure for inadequacy of criminal history category under U.S.S.G. § 4A1.3. First, he contends that the upward departure unfairly double counts when an enhancement based on § 4B1.5(a)’ has already been imposed. Second, he argues that there is insufficient evidence to support the district court’s upward departure. II. Discussion A. Booker Error Prior to oral argument, Cramer filed a letter pursuant to Fed. R.App. P. 28(j) arguing that his Sixth Amendment rights were violated under authority of the United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The reasoning in Blakely was extended to the Federal Sentencing Guidelines. See United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Edüd 621 (2005) (Stevens, J.). Cramer, however, failed to make a Sixth Amendment argument to the district court. As such, we will review his Booker claim1 for plain error. See United States v. Pirani, 406 F.3d 543, 550-51 (8th Cir.2005) (en banc). To establish plain error, Cramer must show that (1) there was an error; (2) the error was plain; and (3) that the error affected 'substantial rights. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Even when all three conditions are met, relief is discretionary with an appellate court and will be exercised only when “the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotations omitted). In Pirani, we held that a Booker error is plain. Pirani, 406 F.3d at 552-53. However, we explained that the error only “affects substantial rights” if there is a reasonable probability that but for the error the defendant would have received a more favorable sentence. Id. Nothing in the record indicates that the district court would have imposed a more favorable sentence under an advisory system, and, thus, Cramer cannot show that the Booker error affected his substantial rights. Pirani, 406 F.3d at 547. B. Duplication of Sentencing Enhancements Cramer argues that the district" }, { "docid": "1955361", "title": "", "text": "States v. Booker, 543 U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in two ways. First, the court committed constitutional Booker error by making the factual finding that he used a firearm in connection with another offense. See Gonzalez-Huerta, 403 F.3d at 731. Second, the court committed non-constitutional Booker error by mandatorily applying the Guidelines in sentencing Taylor. Id. We conclude that neither Booker error warrants re-sentencing in this case. Taylor’s failure to object on constitutional grounds during sentencing requires us to review the district court’s enhancement of his sentence for plain error. See United States v. Dowlin, 408 F.3d 647, 669 (10th Cir.2005) (citations omitted). “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. 1. Constitutional Booker Error During sentencing, Taylor objected to the district court’s factual finding that he possessed a gun “in connection with” another offense because, he argues, the gun was not used to facilitate the sale of drugs. USSG § 4B1.4(b)(3)(A). The court’s findings and subsequent application of the mandatory Guidelines’ enhancement provisions increased his sentence range from a maximum of 210 months to a maximum of 235 months. Taylor was sentenced to 230 months, 20 months above the maximum without the enhancement. Taylor’s objection at sentencing was not based on the Sixth Amendment or other constitutional grounds but on the court’s interpretation of the Guidelines. Only on appeal did Taylor assert his sentence violated his Sixth Amendment rights under Booker because the judge found the relevant facts used to determine the enhancement. Because the judge-found facts increased Taylor’s sentence beyond the maximum allowed by the indictment, this case presents constitutional Booker error. By now, it is axiomatic under plain error review that a court commits error that is plain when it enhances a defendant’s sentence based on judicially-found facts. See, e.g. Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403; Booker, 543 U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621; Gonzalez-Huerta, 403 F.3d at 732. Because the court below" }, { "docid": "22411758", "title": "", "text": "Angu-lo-Quinones these enhancements following Booker, and we want him to revisit these enhancements for Angulo-Quinones when he resentences Angulo-Quinones and Ramirez on remand for the amount or weight of cocaine involved, which we explain in the next section. F. Plain-Error Analysis Among Angulo-Quinones’s appellate issues was that his sentence enhancements violated his Sixth Amendment rights because they were neither charged in the indictment nor proved to a jury; he relied on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). These alleged unconstitutional enhancements were his enhancements for being captain of the go-fast boat, being an organizer/leader, and the amount of cocaine involved. Originally, Ramirez certified to this court that no issue regarding sentencing would be raised in his appeal, and his sentencing proceeding was not transcribed. Subsequently, Ramirez moved to adopt Angulo-Quinones’s sentencing issues, the only one of which applied to him was the amount of cocaine involved. We ordered that Ramirez’s sentencing proceeding be transcribed so that we could review it. Additionally, the Supreme Court decided Booker, which extends Blakely, and holds that the Sixth Amendment is violated when a sentencing judge enhances a sentence based on facts found by the judge under Sentencing Guidelines believed to be mandatory, and those facts were not admitted by the convicted defendant or found by the jury. Following Booker; our court issued United States v. Rodriguez, 398 F.3d 1291(11th Cir.), cert. denied, — U.S.-, 125 S.Ct. 2935, 162 L.Ed.2d 866 ( 2005). In Rodriguez, we recognized that plain-error analysis governs our review of alleged sentencing errors such as Angulo-Quinones and Rodriguez raise in this appeal because then objections were not made in district court. Id. at 1298. Under this review standard, we cannot correct an error that the convicted defendant failed to raise in district court, unless it is “ ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’ ” Id. (citation omitted). If all of these conditions are satisfied, then we have discretion to address a forfeited error “ ‘only if (4) the error seriously affects the fairness, integrity, or public reputation of" }, { "docid": "4525847", "title": "", "text": "sustain Ha-gan’s convictions. III. Hagan asserts on appeal that the district court violated Blakely v. Washington in sentencing him to 292 months imprisonment, because his sentence was based upon facts not in the jury verdict. He asserts that he was convicted of attempted manufacture of at least 5 grams of methamphetamine, but his sentence was based on at least 35 grams of methamphetamine. The district court relied on a stipulation at trial and the evidence in the record. The parties stipulated to an amount of “at least 12-40 grams.” The district court found ample support in the record that Hagan attempted to manufacture over 35 grams of methamphetamine. Because the laboratory report showed a potential yield of 44 grams of meth, the district court did not clearly err in this finding. See United States v. Killgo, 397 F.3d 628, 631 (8th Cir.2005). The district court, however, made this finding applying the Sentencing Guidelines as mandatory. In United States v. Booker, — U.S.-, 125 S.Ct. 738, 757, 160 L.Ed.2d 621 (2005), the Supreme Court held that mandatory application of the guidelines violates the Sixth Amendment principles articulated in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). To preserve a Booker error, a defendant below must argue Apprendi or Blakely error or that the Guidelines were unconstitutional. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc). Here, Hagan did not preserve the error. Hagan’s objection at sentencing to the sufficiency of the government’s evidence of drug quantity is not sufficient to preserve a claim of Booker error on appeal. Id. at 550. Booker error not preserved at trial is reviewed for plain error. Id. To establish plain error there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)." }, { "docid": "16588679", "title": "", "text": "(8th Cir.2000). The items inside the closet were not clearly labeled or specifically identified as belonging only to Clark. See id.; Czeck, 105 F.3d at 1239 (noting that everything in the room except the toolbox, which the officers obtained a warrant to search, appeared to belong to the person consenting). We agree with the magistrate judge that Sherry’s statement that Clark hid things in the closet did not establish that she lacked access to the space or that Clark had exclusive access to it. See Report and Recommendation of July 1, 2002, at 9. D. Finally, Clark argues that the sentencing enhancements that the district court applied under the sentencing guidelines for obstruction of justice, U.S.S.G. § 3C1.1(A), and possession of a firearm while committing a felony assault, U.S.S.G. § 2K2.1(b)(1)(A), were based on facts found by the distinct court in violation of the Sixth Amendment. United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), decided in the wake of Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, established that it is unconstitutional for the district court to impose enhancements under a mandatory federal sentencing guidelines scheme based on facts not es tablished by a plea of guilty or a jury verdict. Booker, 125 S.Ct. at 750, 756. As a remedy for the constitutional error, the Court replaced the mandatory scheme with an advisory one by excising two statutory provisions. Id. at 764. Because Clark first raised a Sixth Amendment Booker-related claim on appeal, we review for plain error. Id. at 769. We examine the error using the four-part test of United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), as described in United States v. Pirani, 406 F.3d 543 (8th Cir.2005) (en banc). We ask whether there is (1) error (2) that is plain and (3) that affects substantial rights such that (4) “the fairness, integrity, or public reputation of judicial proceedings” is affected. Olano, 507 U.S. at 732, 113 S.Ct. 1770. We have determined that the constitutional error, in light of Booker, “arose from the" }, { "docid": "3044746", "title": "", "text": "sufficiency challenge, to say nothing of the plain error standard that applies in this case, there was sufficient evidence for the jury to find, beyond a reasonable doubt, that Diaz possessed the firearm and ammunition. C. Sentencing Enhancement Diaz also protests the ACCA sentencing enhancement applied by the dis trict court, arguing that his Sixth Amendment rights were violated because the enhancement was based on prior convictions that were never presented to the jury and proved beyond a reasonable doubt. Constitutional challenges to ACCA enhancements are subject to de novo review. See United States v. Duval, 496 F.3d 64, 80 (1st Cir.2007). We hold, as we have held before, that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)(holding that fact of prior conviction for sentencing purposes need not be proved to jury beyond reasonable doubt). See United States v. Earle 488 F.3d 537, 549 (1st Cir.2007); Ivery, 427 F.3d at 74-75. Diaz notes that Justice Thomas, in a recent concurrence, cast doubts on the continuing viability of Almendarez-Torres. See Shepard v. United States, 544 U.S. 13, 27-28, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)(Thomas, J., concurring). Diaz relies on a line of Supreme Court cases from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), through Shepard and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to buttress his argument. This court has rejected nearly identical arguments in the past, however, observing that “[t]he Shepard majority noted the possibility that Apprendi may eventually be extended to require proof of prior convictions to a jury, but cautioned that this ‘is up to the future to show.’ ... [B]oth Blakely and Booker recognized the continued viability of the Almendarez-Torres exception.” Ivery, 427 F.3d at 75 (quoting Shepard, 544 U.S. at 26 n. 5, 125 S.Ct. 1254). Unless and until a majority of the Supreme Court decides otherwise, Almendarez-Torres continues to be binding precedent upon this" }, { "docid": "9882917", "title": "", "text": "his possession. Dorsey claims that this sentence violated his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the weight of the cocaine base was determined by the judge by preponderance of the evidence; the weight was neither charged in the indictment or admitted by the defendant in his plea. See id at 2537-38. In an initial test of the crack cocaine seized from Dorsey’s car, the cocaine weighed 3.088 grams. A subsequent measurement indicated that the weight was 2.988 grams. At sentencing, the government presented testimony explaining that the difference in weight was due to small amounts of cocaine consumed in laboratory testing, small amounts clinging to the packaging when drugs are removed, and water evaporating from the suspect sample. Dorsey presented no contrary testimony. The district court accepted the government’s explanation, and sentenced Dorsey for possession of three or more grams of crack cocaine. Dorsey concedes that he is raising this Sixth Amendment challenge for the first time on appeal. Consequently, we must review his sentence for plain error. See United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 769, 160 L.Ed.2d 621 (2005); United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005). He is not entitled to relief unless his sentence amounts to plain error, meaning that there is 1) error, 2) that is plain, and 3) that affects substantial rights. Ameline, 409 F.3d at 1078. Because it was given “in reliance upon judge-made findings under the then-mandatory guidelines,” Dorsey’s sentence was constitutional error and he satisfies the first two prongs of the plain error test. Ameline, 409 F.3d at 1078. The next question is whether the error affected Dorsey’s substantial rights, i.e. “whether the outcome of [Dorsey’s] sentencing was affected by erroneous enhancement of [Dorsey’s] sentence on the basis of judge-made findings in the mandatory guidelines regime.” Id. Dorsey “must demonstrate a reasonable probability that he would have received a different sentence had the district judge known that the sentencing guidelines were advisory.” Id. In cases, like this one, where “the record does not provide" } ]

[ { "docid": "22327027", "title": "", "text": "the Barge itself could be and was sued as the “offending thing” and, being located in the district of suit, this action in rem against it could not have been brought elsewhere without respondent's consent, it was as possible for the Barge voluntarily to enter appearance in and submit to the venue and jurisdiction of the transferee court as it would have been for one sued in personam to do so, and that their motion to transfer had that effect. Whether jurisdiction over a res in an action in rem may be conferred by consent of its owner, given either before or after the action has been brought, upon a court that does not have territorial jurisdiction or custody of the res we need not decide, for the question here is not such, but, rather, it is simply whether a District Court is empowered by § 1404 (a) to transfer such an action to a district in which the libellant did not have the right to bring it, independently of the will or wishes of the claimant-respondent. That question was ruled in the negative by Hoffman v. Blaski, 363 U. S. 335, and I think it follows that the judgment in this case should be reversed. See note 15, infra. Petitioner, Continental Grain Company, is a Delaware corporation maintaining its principal office in New York, New York, but is also authorized to do and is doing business in the City of Memphis in the Western District of Tennessee. Federal Barge Lines, Inc., a Delaware corporation, is a common carrier by water, operating on the Mississippi River and its principal tributaries, and has offices and does business in, among other places, Memphis, Tennessee, and New Orleans, Louisiana. The principal averments of the affidavit referred to were (1) that on June 27, 1958, Federal Barge Lines, Inc., filed an action at law against petitioner, Continental Grain Company, in the Circuit Court’ of Shelby County, Tennessee, for damages to its Barge FBL-585, caused by the alleged negligence of the grain company in loading it at Memphis on November 6, 1957, which action was" } ]

[ { "docid": "8702484", "title": "", "text": "MEMORANDUM OPINION DECKER, District Judge. This is a patent infringement action by Siemens Aktiengesellschaft (Siemens) against Sonotone Corporation (Sonotone) and Beltone Electronics Corporation (Beltone), manufacturers of allegedly infringing hearing aid devices, and Sonotone Corporation of Chicago (Sonotone Chicago), a distributor of hearing aids. Defendants Sonotone and Sonotone Chicago have moved for severance of the complaint against them and, pursuant to 28 U.S.C. § 1404(a), an order transferring the venue of this action as to those defendants to the United States District Court for the Southern District of New York. By its terms, Section 1404(a) allows for transfer only to a district in which the action “might have been brought.” ■ Although Sonotone Chicago has joined in the motion for severance and transfer, the phrase in Section 1404(a) “where it might have been brought” cannot be interpreted to mean “where it may now be rebrought, with defendants’ consent,” Hoffman v. Blaski, 363 U.S. 335, 343, 80 S.Ct. 1084, 1089, 4 L.Ed.2d 1254 (1960); transfer under this statute does not depend upon the “wish or waiver of the defendant.” Hoffman v. Blaski, supra. The situation when the suit was instituted is the sole relevant factor. At that time, this action could not have been brought against Sonotone Chicago in the proposed transferee district because it has neither resided nor maintained a regular and established place of business in that jurisdiction. This court, therefore, is without power to transfer the action as to Sonotone Chicago to New York. This does not mean, however, that transfer as to the defendant Sonotone would be improper. Courts have authorized severance and transfer of claims as to less than all defendants in a multi-defendant suit upon a determination that the defendant as to whom venue is improper in the transferee district is only peripherally involved in the litigation. Wyndham Associates v. Bintliff, 398 F. 2d 614 (2d Cir.), cert. denied, 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968); Mobile Oil Corp. v. W. R. Grace & Co., 334 F.Supp. 117 (S.D.Texas 1971); Burroughs Corp. v. Newark Electronics Corp., 317 F.Supp. 191 (N. D.Ill.1970); General Elec." }, { "docid": "8702485", "title": "", "text": "the defendant.” Hoffman v. Blaski, supra. The situation when the suit was instituted is the sole relevant factor. At that time, this action could not have been brought against Sonotone Chicago in the proposed transferee district because it has neither resided nor maintained a regular and established place of business in that jurisdiction. This court, therefore, is without power to transfer the action as to Sonotone Chicago to New York. This does not mean, however, that transfer as to the defendant Sonotone would be improper. Courts have authorized severance and transfer of claims as to less than all defendants in a multi-defendant suit upon a determination that the defendant as to whom venue is improper in the transferee district is only peripherally involved in the litigation. Wyndham Associates v. Bintliff, 398 F. 2d 614 (2d Cir.), cert. denied, 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968); Mobile Oil Corp. v. W. R. Grace & Co., 334 F.Supp. 117 (S.D.Texas 1971); Burroughs Corp. v. Newark Electronics Corp., 317 F.Supp. 191 (N. D.Ill.1970); General Elec. Credit Corp. v. James Talcott, Inc., 271 F.Supp. 699 (S.D.N.Y.1966); Leesona Corp. v. Cotwool Mfg. Corp., Judson Mills Div., 204 F.Supp. 139 (W.D.S.Car.), appeal dismissed, 308 F.2d 895 (4th Cir. 1962). Although some courts apparently refuse to transfer in multiple defendant cases unless all the defendants can be transferred, see, e. g., Leyden v. Excello Corp., 188 F.Supp. 396, 397 (D.N.J. 1960); Anschell v. Sackheim, 145 F. Supp. 447 (D.N.J.1956), this court has previously adopted the former view. Burroughs Corp. v. Newark Electronics Corp., supra. Were the rule otherwise, “a plaintiff could preclude the court from considering whether transfer would serve the interest of justice by including a defendant, not subject to suit in the more convenient district, who was in some manner peripherally involved in the alleged wrongdoing.” Wyndham Associates v. Bintliff, supra, 398 F.2d at 619, quoted in Burroughs Corp. v. Newark Electronics Corp., supra, 317 F. Supp. at 193. The question thus arises whether defendant Sonotone Chicago is only secondarily involved in the subject matter of this suit. Sonotone Chicago, a proprietorship," }, { "docid": "16174541", "title": "", "text": "on the asserted claims. The motion to transfer is made against this background, and the question is whether, at the time the suit was commenced, the plaintiffs could have brought the suit in Minnesota against the defendants served here in New York. Cf. Ackert v. Ausman, 198 F.Supp. 538, 543 (S.D.N.Y. 1961); Schoen v. Mountain Producers Corp., 170 F.2d 707, 710 (3d Cir. 1948). The answer is no because jurisdiction over Alleghany, Purcell and Eppler did not exist independently of the wishes of those defendants. Movants urge that Hoffman v. Blaski, supra, has been held inapplicable when suit could have been instituted in the transferee district against one of several defendants and the remaining defendants consent to the transfer. They rely on Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960), decided by the Supreme Court two weeks after Hoffman v. Blaski. The two cases are clearly distinguishable, and the Court pointed out in Continental Grain that to deny the transfer there would violate its decision in Blaski. In Continental Grain the Court disregarded the fiction that a vessel is a separate person apart from its owner, and although both were named as defendants the Court granted transfer because there was only one party defendant in a single civil action. The Court said: “We are asked here, however, to transplant this ancient salt-water admiralty fiction into the dry-land context of foruin non conveniens, where its usefulness and possibilities for good are questionable at best. In fact, the fiction appears to have no relevance whatever in a District Court’s determination of where a case can most conveniently be tried. A fiction born to provide convenient forums should not be transferred into a weapon to defeat that very purpose.” 364 U.S. at 23, 80 S.Ct. at 1473. The defendants seek to avoid the effect of the Blaski rule by attempting to distinguish the facts of that case from those present here. In Blaski it was stipulated that the action was properly brought in the transferor district, and neither jurisdiction over the defendants nor proper venue" }, { "docid": "17612611", "title": "", "text": "have a costly and prolonged trial aborted on appeal because of jurisdictional error. See Hoffman v. Blaski, 363 U.S. at 334, n. 9, 80 S.Ct. 1084. But see IB J. Moore, Federal Practice ¶ 0.404[8] (2d ed. 1974). . 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960). In Continental Grain, the controversy arose from a shipping mishap in Memphis, Tennessee. The barge owners brought suit against the grain company in a Tennessee state court but that action was later removed to the federal district court in Memphis. Jurisdiction with respect to the barge lines could have been had in either Memphis or New Orleans, but the barge itself having been taken to New Orleans, Continental Grain filed its subsequent federal suit, against both the barge in rem and the owners in personam, in New Orleans. When the barge line sought to transfer the Continental Grain case to Memphis, which was the more convenient forum, the grain company resisted the move on the ground that it could not have acquired in rem jurisdiction,in Memphis, the barge being in New Orleans. . See Ferri v. United Aircraft Corp., 357 F.Supp. 814, 817 (D.Conn.1973). . 376 U.S. 612, 616-24, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)." }, { "docid": "2896077", "title": "", "text": "Texas Gulf Sulphur Co., 38 F.R.D. 336 (N.D.Ill. 1965). As Judge Wyatt stated in Sehlusselberg v. Werly, 274 F.Supp. 758, 764 (S.D.N.Y. 1967), a failure to transfer under the circumstances here faced would be “inexcusably poor judicial administration.” Plaintiff advances several reasons for his opposition to transfer. First, he contends that to the extent jurisdiction herein asserted is in rem to determine the claims of tangible or intangible property whose situs is in Delaware, the ease cannot be transferred to another district court. Undoubtedly, this is the rule with respect to a purely in rem action because it has generally been held that power is lacking under § 1404(a) to transfer such a case to a forum which has no jurisdiction over the res and thus is not one which “might have been brought” in the transferee district. Clinton Foods v. United States, 188 F.2d 289 (C.A. 4, 1951) cert. den. 342 U.S. 825, 72 S.Ct. 45, 96 L.Ed. 624 (1951); Hughes v. S. S. Santa Irene, 209 F.Supp. 440 (S.D.N.Y.1962). But the rule is entirely different when in rem claims are joined with in personam claims. In such cases, the entire action may be transferred under § 1404(a) to a transferee district where the action “might have been brought” based on the in personam claims alone. Continental Grain Co. v. Federal Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed. 2d 1540 (1960); Ladson v. Kibble, 307 F.Supp. 11 (S.D.N.Y.1969). As already pointed out, the plaintiff could have brought this action in the Southern District of New York to vindicate rights protected by the Federal Securities laws since proper venue would have existed under section 27 of the ’34 Act. The plaintiff could also have obtained personal service upon all the defendants by the “long-arm” provisions of section 27. The same is true with respect to the instant case. However, the plaintiff here instead of obtaining personal service upon defendants resorted to Rule 4(e), F.R.Civ.P. and 10 Del.C. §§ 365 and 366 to obtain an order of sequestration and an order for substituted service. The in rem nature" }, { "docid": "20157783", "title": "", "text": "however, opposes the plaintiffs motion to strike the affirmative defense of lack of personal jurisdiction as to him and, in turn, cross-moves to dismiss on that ground pursuant to Fed.R.Civ.P. 12(b)(2). In addition, both defendants move to transfer this action to the Southern District of Florida pursuant to 28 U.S.C. § 1404(a). III.DISCUSSION The Court first considers the propriety of a transfer, then addresses the issue of personal jurisdiction over the defendant Johnson. A. Motion to Transfer: A motion to transfer venue from one federal district court to another, when venue is initially proper, is governed by 28 U.S.C. § 1404(a), which provides, in pertinent part: “(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” The goal of 28 U.S.C. § 1404(a) “is to prevent waste ‘of time, energy and money’ and ‘to protect litigants, witnesses and the public against unnecessary inconvenience and expense’ ” (Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 809, 11 L.Ed.2d 945 [1964], quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26-27, 80 S.Ct. 1470, 1474-75, 4 L.Ed.2d 1540 [1960]). The inquiry on such a motion to transfer is two-fold: First, whether the action sought to be transferred is one that “might have been brought” in the district court which the movant seeks to have the case litigated, i.e., the “transferee” court. If so, second, whether, considering “the convenience of parties and witnesses” and “the interest of justice”, a transfer to the proposed district is appropriate (see Schneider v. Sears, 265 F.Supp. 257, 261 [S.D.N.Y.1967] [Weinfeld, J.]). On such a motion to transfer, the movant bears the burden to “clearly” establish that a transfer is appropriate and that the motion should be granted (see Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218-19 [2d Cir.1978], cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 [1979]; see also Arrow Elecs., Inc. v. Ducommun, Inc., 724 F.Supp. 264, 265 [S.D.N.Y.1989], quoting Morales v. Navieras" }, { "docid": "12672872", "title": "", "text": "the parties in this lawsuit to accomplish transfer, and (ii) that even if such power exists, it should not be so exercised because the District Court in the transferee forum would not do so. To read the cited cases distinguishes them. In none of them was there a discussion of a court’s power to transfer a severed cause of action to a forum in which the cause against the transferred defendant could properly have been brought. See for example: Wyndham v. Bintliff, supra, 398 F.2d at 618, Leesona Corp. v. Duplan Corp., 317 F.Supp. 290, 299 (D.R.I.1970). In Blaski the Supreme Court was confronted with a situation where the district court transferred a multiple defendant suit to a forum in which one of the transferred defendants could not have been sued without waiving his rights to proper venue and service. In that situation the Court held that the transferor court did not have the power to transfer the cause to the transferee forum because it was not a forum “where it might have been brought.” The Connecticut District Court cases can be construed no further. In Silver v. Goodman, supra, Judge Zampano refused to transfer a multiple defendant action from Connecticut to New York because one of the defendants could not have been sued there. Likewise, in Lemelson v. Sears Roebuck and Co., supra, another multiple defendant action in which each of them could not have been sued in New York, Judge Zampano followed Blaski and Goodman in holding that the Court did not have the power to transfer the cause to New York. There have been numerous federal decisions since Blaski which have authorized a federal district court to sever the claims of several defendants to create a new cause of action susceptible to § 1404 (a) transfer. Wyndham Associates v. Bintliff, supra; Leesona Corp. v. Cot-wool Mfg. Co., supra; Potter Instrument Co., Inc. v. Control Data Corp., supra; Burroughs Corp. v. Newark Electronics Corp., supra. In these cases the transferred defendant could originally have been sued in the transferee forum without his consent to service or venue. Id." }, { "docid": "20801172", "title": "", "text": "even on a matter as fundamental as jurisdiction, for all of the reasons stated by Justice Frankfurter in his dissenting opinion in Hoffman v. Blaski, 363 U.S. 335, 345, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960). But the decision of the Court in Blaski holds that a district court to which an action has been improperly transferred should return the case, even when the propriety of the transfer has been upheld by a court of appeals decision declining to issue mandamus against the transferring judge. Some of the reasons for this view are elaborated by the Court in a footnote. 363 U.S. at 340, n. 9, 80 S.Ct. 1084, 4 L.Ed.2d 1254. Notwithstanding Judge King’s order, I am obliged, in determining my own jurisdiction, to consider the propriety of the transfer. Before Judge King, all parties agreed that Hoffman v. Blaski, supra, precluded transfer of the entire action unless jurisdiction and venue could be established in this district with respect to all defendants, and all parties agree that jurisdiction and venue are lacking here as to the defendant carriers. But defendants have shifted from the position they took in Florida and now urge that Blaski precludes transfer only where none of the defendants might have been sued in the transferee district. They rely on dictum in the Seventh Circuit’s decision in Hoffman v. Blaski, 260 F.2d 317, 322 (7th Cir. 1958). That dictum appears to have been rejected by the reasoning of the Supreme Court’s decision in Blaski. Since the Supreme Court’s decision, numerous courts, including this district, have held that a transfer is improper under § 1404(a) unless jurisdiction and venue exist with respect to all defendants. Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971); Johnson & Johnson v. Picard, 282 F.2d 386 (6th Cir. 1960); Lemelson v. Sears Roebuck & Co., 292 F.Supp. 170 (D.Conn. 1968); Levin v. Mississippi River Corp., 289 F.Supp. 353 (S.D.N.Y.1968). Nor can a transfer be accomplished by the defendants’ consenting to the jurisdiction of the transferee district and" }, { "docid": "19693626", "title": "", "text": "38 at 5) Defendants claim that as against “at least Sauer and SAS,” the 414 action could have been brought in Iowa. (414-D.I. 26 at 6) Defendants go on to argue that the only reason plaintiffs joined Hydro-Gear and He-chinger is to prevent transfer. When such is the case, they argue, the remaining nontransferable parties’ action should be stayed while the action against the transferable parties should be transferred. In the alternative, defendants suggest that because He-chinger and Hydro-Gear are now willing to be joined as plaintiffs in the Iowa action, this case can be treated as an appropriate candidate for transfer to Iowa. (414-D.I. 26 at 7) The defendants’ position is without merit. “The Supreme Court has held that the power of transfer under § 1404(a) does not depend upon the wish or waiver of the defendants and concluded that defendants may not establish venue in a transferee district by merely waiving possible objections to venue.” Magee v. Essex-TEC Corp., 704 F.Supp. 543, 546 (D.Del.1988) (citing Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960)). To claim that the transferee district is an appropriate one based on the willingness of some parties to transfer there, although the transferee district does not have jurisdiction over them, is a misstatement of the law. Furthermore, the plaintiffs choice of a forum is paramount. Critikon Inc. v. Becton Dickinson Vascular Access, 821 F.Supp. 962, 964 (D.Del.1993); Waste Distillation, 775 F.Supp. at 762; Willemijn Houdstermaatschaapij BV v. Apollo Computer, Inc., 707 F.Supp. 1429, 1436 (D.Del.1989). The defendants are correct to point out that such deference to plaintiffs choice of forum applies when plaintiff has chosen its “home turf’ as the forum for the lawsuit. “ ‘Home turf has been defined as the forum closest to [plaintiffs] home in which plaintiff could affect personal jurisdiction over the principle defendant.” Kirschner Bros. Oil, Inc. v. Pannill, 697 F.Supp. 804, 806 (D.Del.1988). Delaware and Iowa are equidistant from Tennessee. However, TTC could not obtain jurisdiction over all the defendants in Iowa. Therefore, Delaware may be considered the plaintiff’s “home turf.” Even if this" }, { "docid": "12672871", "title": "", "text": "S.Ct. 444, 21 L.Ed.2d 438 (1968); Leesona Corp. v. Cotwool Mfg. Corp., 308 F.2d 895 (4th Cir. 1962) ; affirming and denying mandamus from; 204 F.Supp. 139 (W.D.S.C.1962); Potter Instrument Co., Inc. v. Control Data Corp., 169 U.S. P.Q. 86-89 (S.D.Ind.1971); Burroughs Corp. v. Newark Electronics Corp., 317 F.Supp. 191 (N.D.Ill.1970); General Tire and Rubber Co. v. Jefferson Chemical Co., 50 F.R.D. 112, 114 (S.D.N.Y. 1970). This Court has the power to sever the claims against properly joined defendants, Wyndham Associates v. Bintliff, supra; 3 J. W. Moore, Moore’s Federal Practice, par. 21.05[2] (1970), and to stay the proceedings as to one of them in appropriate circumstances. Landis v. North American Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 81 L.Ed. 153 (1936); 1 J. W. Moore, supra, par. 0.204 (1970). Mobil cites the cases of Hoffman v. Blaski, supra, Lemelson v. Sears Roebuck and Co., 292 F.Supp. 170 (D.Conn. 1968); and Silver v. Goodman, 234 F. Supp. 415 (D.Conn.1964) for the two-pronged proposition (i) that this Court does not have the power to restructure the parties in this lawsuit to accomplish transfer, and (ii) that even if such power exists, it should not be so exercised because the District Court in the transferee forum would not do so. To read the cited cases distinguishes them. In none of them was there a discussion of a court’s power to transfer a severed cause of action to a forum in which the cause against the transferred defendant could properly have been brought. See for example: Wyndham v. Bintliff, supra, 398 F.2d at 618, Leesona Corp. v. Duplan Corp., 317 F.Supp. 290, 299 (D.R.I.1970). In Blaski the Supreme Court was confronted with a situation where the district court transferred a multiple defendant suit to a forum in which one of the transferred defendants could not have been sued without waiving his rights to proper venue and service. In that situation the Court held that the transferor court did not have the power to transfer the cause to the transferee forum because it was not a forum “where it might have been brought.”" }, { "docid": "1028174", "title": "", "text": "the Eastern District of Missouri. The parties herein do not dispute that the LeVasseur action is substantially identical to the Levin action presently before this Court. In the LeVasseur action all fifteen Mopac directors are named as defendants. However, as of February 21, 1968, only three directors were served. The Motion to Transfer This motion seeks to transfer the action to the United States District Court for the Eastern District of Missouri, Eastern Division, pursuant to 28 U.S.C. § 1404(a). That section provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” (Emphasis added.) Defendants Craft, Davis and Mil-bank are citizens of New York and are, therefore, not amenable to process in Missouri. It is clear, therefore, that this Court lacks the power to transfer the action because the Eastern District of Missouri is not a district “where it might have been brought” at the time suit was commenced. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960); Johnson & Johnson v. Picard, 282 F.2d 886, 388 (6th Cir. 1960) (per curiam); Blackmar v. Guerre, 190 F.2d 427, 429 (5th Cir. 1951), affirmed, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534 (1952); Glicken v. Bradford, 204 F.Supp. 300, 302-303 (S.D.N.Y.1962); Ackert v. Ausman, 198 F.Supp. 538 (S.D.N.Y.1961), petition for writ of mandamus denied sub nom. Ackert v. Bryan, 299 F.2d 65 (2nd Cir. 1962); Shelley v. The Maccabees, 191 F.Supp. 742 (E.D.N.Y.1961). The affidavits submitted by defendants Craft and Milbank consenting to the jurisdiction and venue of the Missouri court cannot alter this conclusion. The relevant inquiry under 28 U.S.C. § 1404(a) is whether the suit “might have been brought” in the transferee court “ * * * independently of the wishes of defendants] * * Hoffman v. Blaski, 363 U.S. at 344, 80 S.Ct. at 1090; Johnson & Johnson v. Picard, supra; Glicken v. Bradford, supra. Defendants argue, however, that the Court can circumvent the problem of its power to transfer" }, { "docid": "22537336", "title": "", "text": "the reach of the process of the respective transferee courts.” Id., at 341. Two weeks after Hoffman the Court decided Continental Grain Co. v. Barge FBL-585, 364 U. S. 19. See infra, at 622. In that ease a cargo owner, seeking damages from a barge owner, had joined in a single complaint an in personam claim against the barge owner and an in rem claim against the barge. The complaint was filed in the Federal District Court in New Orleans. At that time the barge, or the res, was in New Orleans. The plaintiff-cargo owner opposed a motion to transfer to the District Court in Memphis on the ground that the in rem claim could not have been brought in that forum which had only personal jurisdiction over the barge owner at the time the New Orleans suit was brought. The Court, rejecting this argument, held that for purposes of assessing where the litigation “might have been brought” the in personam and in rem claims should be practically viewed as a single “civil action” in which the complainant had chosen “an alternative way of bringing the owner into court.” Id., at 26. See Comment, 31 U. of Chi. L. Rev. 373 (1964). A similar rule had been applied in Felchlin v. American Smelting & Refining Co., 136 F. Supp. 577 (D. C. S. D. Cal. 1955). See Note, 60 Yale L. J. 183 (1951). The analogous provisions of § 1406 (a), which shares the same statutory context, contain a similar phrase: “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U. S. C. § 1406 (a). (Emphasis added.) See Goldlawr, Inc., v. Heiman, 369 U. S. 463; Hart and Wechsler, The Federal Courts and the Federal System (1953), p. 979; Comment, 30 U. of Chi. L. Rev. 735 (1963). 28 U. S. C. §§1391 (a)(b), 1392 (a)(b), 1393 (b), 1395 (d), 1396," }, { "docid": "2896078", "title": "", "text": "entirely different when in rem claims are joined with in personam claims. In such cases, the entire action may be transferred under § 1404(a) to a transferee district where the action “might have been brought” based on the in personam claims alone. Continental Grain Co. v. Federal Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed. 2d 1540 (1960); Ladson v. Kibble, 307 F.Supp. 11 (S.D.N.Y.1969). As already pointed out, the plaintiff could have brought this action in the Southern District of New York to vindicate rights protected by the Federal Securities laws since proper venue would have existed under section 27 of the ’34 Act. The plaintiff could also have obtained personal service upon all the defendants by the “long-arm” provisions of section 27. The same is true with respect to the instant case. However, the plaintiff here instead of obtaining personal service upon defendants resorted to Rule 4(e), F.R.Civ.P. and 10 Del.C. §§ 365 and 366 to obtain an order of sequestration and an order for substituted service. The in rem nature of the jurisdiction thus obtained is more limited in scope than he would otherwise be entitled to under section 27 of the ’34 Act. In Van Dusen v. Barrack, 376 U.S. 612, 624, 84 S.Ct. 805, 813, 11 L.Ed.2d 945 (1964), the Supreme Court stated that § 1404(a) “should be construed to prevent parties who are opposed to a change of venue from defeating a transfer which, but for their own deliberate acts or omissions, would be proper, convenient and just.” The Court therefore concludes that despite the limited in rem nature of the jurisdiction actually obtained in Delaware, transfer to the Southern District of New York is proper since venue exists there and personal jurisdiction over the defendants is available there. The action is one which “might have been brought” in New York and is thus transferable under the standards set forth in Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960); Continental Grain Co. v. Barge FBL-585, supra; Van Dusen v. Barrack, supra. A party should not be allowed" }, { "docid": "17612601", "title": "", "text": "1404(a), as interpreted in Hoffman v. Blaski, such a showing is an essential predicate for transfer. What is important to our current inquiry is the capacity of the plaintiff to have “brought” the suit in the transferee district in the first instance. Absent this necessary element, the denial of Skil’s motion to remand the cause to Illinois would appear unwarranted, unless Hoffman v. Blaski is distinguishable. The defendants attempt to differentiate Hoffman v. Blaski by drawing an analogy between the instant case and Continental Grain Co. v. Barge FBL-585, where a transfer was permitted although jurisdiction over the barge could not have been obtained in the transferee forum. Continental Grain hinged on the fact that although there were suits against different defendants, there was but one real party in interest. The plaintiff had brought suit in rem against the barge and in personam against the owners of the barge; any claim secured against the barge would, of course, redound to the detriment of the barge owners. The case before this Court involves three defendants in addition to Lucerne, but Lu cerne has agreed to indemnify the other parties. Consequently, Lucerne is presented by the defendants as the only real party in interest and, in the defendants’ view, the principle underlying Continental Grain applies as well to the present case. The disregard of the limitations on venue imposed by the in rem proceeding in Continental Grain was, however, founded on the fictitious nature of the in rem law suit. There, in rem jurisdiction depended upon the legal fiction that the barge had an independent personality. Hence, suit could be brought against the barge even where its owner could not be reached. It was possible in Continental Grain to ignore this legal fiction because it did not serve any legitimate purpose for the plaintiff in that case; it had not been necessary to employ the legal fiction in order to bring suit, since in personam jurisdiction over the owners of the barge had been obtained. Here, the defendants are quite different from Barge FBL-585, since each has a real and independent legal" }, { "docid": "20801173", "title": "", "text": "to the defendant carriers. But defendants have shifted from the position they took in Florida and now urge that Blaski precludes transfer only where none of the defendants might have been sued in the transferee district. They rely on dictum in the Seventh Circuit’s decision in Hoffman v. Blaski, 260 F.2d 317, 322 (7th Cir. 1958). That dictum appears to have been rejected by the reasoning of the Supreme Court’s decision in Blaski. Since the Supreme Court’s decision, numerous courts, including this district, have held that a transfer is improper under § 1404(a) unless jurisdiction and venue exist with respect to all defendants. Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971); Johnson & Johnson v. Picard, 282 F.2d 386 (6th Cir. 1960); Lemelson v. Sears Roebuck & Co., 292 F.Supp. 170 (D.Conn. 1968); Levin v. Mississippi River Corp., 289 F.Supp. 353 (S.D.N.Y.1968). Nor can a transfer be accomplished by the defendants’ consenting to the jurisdiction of the transferee district and waiving their objection to improper venue. Alabama Great Southern R. Co. v. Allied Chemical Co., 312 F.Supp. 3 (E.D.Va. 1970); Jaffe v. Dolan, 264 F.Supp. 845 (E.D.N.Y.1967); Silver v. Goodman, 234 F.Supp. 415 (D.Conn.1964). More substantial is defendants’ contention that even if Blaski precludes transfer unless the action might have been brought in the transferee district against all defendants, an exception to this rule has been created by the Supreme Court’s later decision in Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960). In that case plaintiff had joined in a single action an in personam claim against a barge owner and an in rem claim against the barge for damages arising out of a single incident. Plaintiff sought to resist transfer of the action on the ground that the transferee district lacked jurisdiction over the res, and hence the action was not one that could have been brought in its entirety in the transferee district. Over the dissent of the author of Blaski, the Court upheld the" }, { "docid": "22537335", "title": "", "text": "Supp. 426, 437. Nor is there any question concerning the propriety either of venue or of jurisdiction in the Eastern District of Pennsylvania, the transferor forum. The District Court indicated that one of the cases arising from the Boston Harbor crash had \"already been transferred due to improper venue . . . .” Id.., at 427, n. 1. The Court of Appeals noted that counsel suggested that two other cases “must eventually be transferred to the district court in Massachusetts since venue in the Eastern District of Pennsylvania is improper.” 309 F. 2d 953, at 958. The transfers ordered in these cases were not contested in the Court of Appeals, ibid., and are not involved in the present case. See notes 11, 29, infra. The text of Rule 17 (b) is set forth in note 2, supra. In the two cases decided sub nom. Hoffman v. Blaski, supra, the petitioners conceded “that statutory venue did not exist o'ver either of these actions in the respective transferee districts, and that the respective defendants were not within the reach of the process of the respective transferee courts.” Id., at 341. Two weeks after Hoffman the Court decided Continental Grain Co. v. Barge FBL-585, 364 U. S. 19. See infra, at 622. In that ease a cargo owner, seeking damages from a barge owner, had joined in a single complaint an in personam claim against the barge owner and an in rem claim against the barge. The complaint was filed in the Federal District Court in New Orleans. At that time the barge, or the res, was in New Orleans. The plaintiff-cargo owner opposed a motion to transfer to the District Court in Memphis on the ground that the in rem claim could not have been brought in that forum which had only personal jurisdiction over the barge owner at the time the New Orleans suit was brought. The Court, rejecting this argument, held that for purposes of assessing where the litigation “might have been brought” the in personam and in rem claims should be practically viewed as a single “civil action” in" }, { "docid": "19881696", "title": "", "text": "reasoned that even though the laws of the state where the transferee district was located would have disqualified plaintiffs from bringing the case in the transferee district, transfer was not barred when convenience and the interests of justice strongly favored transfer. 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). Another exception is where “[cjourts have authorized severance and transfer of claims as to less than all defendants in a multi-defendant suit upon a determination that the defendant as to whom venue is improper in the transferee district is only peripherally involved in the litigation,” even though the plaintiff could not have brought its case (i.e., all its claims against all defendants) in the transferee district. Siemens Aktiengesellschaft v. Sonotone Corp., 370 F.Supp. 970, 972 (N.D.Ill.1973) (citations omitted). Moreover, the Seventh Circuit has concluded that to avoid injustice “there is no absolute bar to the transfer of a multi-defendant suit to a district in which one of the defendants cannot be served.” Wild v. Subscription Plus, Inc., 292 F.3d 526, 531 (7th Cir.2002), cert. denied, 537 U.S. 1045, 123 S.Ct. 619, 154 L.Ed.2d 517 (2002). Finally, in Continental Grain Co. v. Barge FBL-585, the Supreme Court encountered unjust circumstances where a strict application of its reasoning in Hoffman would have defeated the purpose behind 28 U.S.C. § 1404(a). 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960). Continental Grain Co. involved a plaintiff suing a barge and the owner of the barge in the United States District Court in New Orleans, and the barge owner argued for transfer of the case to the District Court of Tennessee because another action involving the sinking of the same barge was already underway there. Id. at 20-21, 80 S.Ct. 1470. The plaintiff argued against transfer because the barge, which was considered a party unto itself under admiralty law, was located in New Orleans and the plaintiff could not have as a matter of right brought the case against the barge in the District of Tennessee. Id. at 22-23, 80 S.Ct. 1470. The Supreme Court took what it called a common-sense approach" }, { "docid": "16174540", "title": "", "text": "The Court said, quoting with approval the language used in Blaski v. Hoffman, 260 F.2d 317, 321 (7th Cir. 1958) and Behimer v. Sullivan, 261 F.2d 467, 469 (7th Cir. 1958): “ ‘If when a suit is commenced, plaintiff has a right to sue in that district, independently of the wishes of defendant, it is a district “where [the action] might have been brought.” If he does not have that right, independently of the wishes of defendant, it is not a district “where it might have been brought,” and it is immaterial that the defendant subsequently [makes himself subject, by consent, waiver of venue and personal jurisdiction defenses or otherwise, to the jurisdiction of some other forum].’” 363 U.S. at 344, 80 S.Ct. at 1090. We have here multiparty litigation, and it appeals that plaintiffs could not obtain jurisdiction and proper venue in one district as to all named defendants. Consequently, they chose that forum where they could serve process on those defendants whom they consider most advantageous and important to the proof and recovery on the asserted claims. The motion to transfer is made against this background, and the question is whether, at the time the suit was commenced, the plaintiffs could have brought the suit in Minnesota against the defendants served here in New York. Cf. Ackert v. Ausman, 198 F.Supp. 538, 543 (S.D.N.Y. 1961); Schoen v. Mountain Producers Corp., 170 F.2d 707, 710 (3d Cir. 1948). The answer is no because jurisdiction over Alleghany, Purcell and Eppler did not exist independently of the wishes of those defendants. Movants urge that Hoffman v. Blaski, supra, has been held inapplicable when suit could have been instituted in the transferee district against one of several defendants and the remaining defendants consent to the transfer. They rely on Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960), decided by the Supreme Court two weeks after Hoffman v. Blaski. The two cases are clearly distinguishable, and the Court pointed out in Continental Grain that to deny the transfer there would violate its decision in Blaski." }, { "docid": "12672870", "title": "", "text": "forum is not one in which Pontiac-Champlin could have been originally sued without their waiving their statutory service and venue rights. See: 28 U.S.C. §§ 1400(b) and 1404(a); Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960); Foster Milburn Co. v. Knight, 181 F.2d 949 (2nd Cir. 1950) (per Learned Hand, J.). There is no suggestion by plaintiff, however, that Grace could not have been sued originally in Connecticut, its place of incorporation. This Court is faced first with the threshold questions whether (i) to sever the causes of action against properly joined parties, (ii) to transfer the cause as to the one defendant, and (iii) thereafter stay the cause as to the other. The criteria for determining the three questions involve the same relevant criteria— namely the determination by the Court of whether the movants have made a clear showing that the balance of convenience and the interests of justice require the proposed actions. Wyndham Associates v. Bintliff, 398 F.2d 614 (2nd Cir. 1968), cert, denied 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968); Leesona Corp. v. Cotwool Mfg. Corp., 308 F.2d 895 (4th Cir. 1962) ; affirming and denying mandamus from; 204 F.Supp. 139 (W.D.S.C.1962); Potter Instrument Co., Inc. v. Control Data Corp., 169 U.S. P.Q. 86-89 (S.D.Ind.1971); Burroughs Corp. v. Newark Electronics Corp., 317 F.Supp. 191 (N.D.Ill.1970); General Tire and Rubber Co. v. Jefferson Chemical Co., 50 F.R.D. 112, 114 (S.D.N.Y. 1970). This Court has the power to sever the claims against properly joined defendants, Wyndham Associates v. Bintliff, supra; 3 J. W. Moore, Moore’s Federal Practice, par. 21.05[2] (1970), and to stay the proceedings as to one of them in appropriate circumstances. Landis v. North American Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 81 L.Ed. 153 (1936); 1 J. W. Moore, supra, par. 0.204 (1970). Mobil cites the cases of Hoffman v. Blaski, supra, Lemelson v. Sears Roebuck and Co., 292 F.Supp. 170 (D.Conn. 1968); and Silver v. Goodman, 234 F. Supp. 415 (D.Conn.1964) for the two-pronged proposition (i) that this Court does not have the power to restructure" }, { "docid": "20801174", "title": "", "text": "waiving their objection to improper venue. Alabama Great Southern R. Co. v. Allied Chemical Co., 312 F.Supp. 3 (E.D.Va. 1970); Jaffe v. Dolan, 264 F.Supp. 845 (E.D.N.Y.1967); Silver v. Goodman, 234 F.Supp. 415 (D.Conn.1964). More substantial is defendants’ contention that even if Blaski precludes transfer unless the action might have been brought in the transferee district against all defendants, an exception to this rule has been created by the Supreme Court’s later decision in Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960). In that case plaintiff had joined in a single action an in personam claim against a barge owner and an in rem claim against the barge for damages arising out of a single incident. Plaintiff sought to resist transfer of the action on the ground that the transferee district lacked jurisdiction over the res, and hence the action was not one that could have been brought in its entirety in the transferee district. Over the dissent of the author of Blaski, the Court upheld the transfer on the ground that the in rem action was only “an alterna tive way of bringing the owner into court,” 364 U.S. at 26, 80 S.Ct. at 1475. The Court also concluded that the admiralty fiction that a vessel may be assumed to be a person for purposes of filing a lawsuit should not be permitted' to defeat the transfer. Id. at 22-23, 80 S.Ct. 1470. See Van Dusen v. Barrack, 376 U.S. 612, 620, n. 9, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). Defendants analogize . the claim against the carriers here to the in rem claim in Continental Grain. It is true that United Aircraft has agreed to pay any judgments that may be rendered against the carriers just as the barge owner agreed to pay any judgment rendered against the barge, 364 U.S. at 27, 80 S.Ct. 1470. Nevertheless the analogy is not exact. The claim against the carriers is not an alternative way of bringing the manufacturer into court, and the claims against the carriers surely do not rest on" } ]

[ { "docid": "1516979", "title": "", "text": "present at the post-indictment photographic identification session that took place several weeks prior to trial. He argues that photographic identifications are just as susceptible to prejudicial manipulation as line-ups and that when a defendant has already been indicted and is represented by counsel, the police should not be allowed to circumvent the Wade rule by resorting to photographic identifications. This Court has already rejected that argument in United States v. Ben nett, 409 F.2d 888 (2d Cir.), cert. denied sub nom. Haywood v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969). In that case we held that the right to the presence of counsel applies only when the defendant is actually confronted by witnesses in a pretrial identification, and not to photographic identifications from which the defendant is absent. See also United States v. Edmons et al., 432 F.2d 577 (2d Cir. 1970); United States v. Smith, 423 F.2d 1290 (9th Cir. 1970); McGee v. United States, 402 F.2d 434 (10th Cir. 1968), cert. denied 394 U.S. 908, 89 S.Ct. 1020, 22 L.Ed.2d 220 (1969); United States v. Collins, 416 F.2d 696, 699 (4th Cir. 1969), cert. denied 396 U.S. 1025, 90 S.Ct. 601, 24 L.Ed.2d 519 (1970). Fitzpatrick’s next contention is that the pretrial photographic identifications were impermissibly suggestive. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court held that “convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 390 U.S. at 384, 88 S.Ct. at 971. Fitzpatrick argues that since the majority of photographs were of older men whereas the witnesses had informed authorities that the suspect was a young “clean-cut American boy,” the procedure was impermissibly suggestive. It was also impermissibly suggestive, claims Fitzpatrick, because during the second identification session, the three bank witnesses were in the same room when they seriatim picked Fitzpatrick’s picture. We reject this contention. Although fifteen" } ]

[ { "docid": "21925475", "title": "", "text": "396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), it is not constitutionally required that he be tried by a jury including persons of his race or economic class, or by a jury proportionately representative of his community. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) ; Thomas v. Texas, 212 U.S. 278, 29 S.Ct. 393, 53 L. Ed. 512 (1909). III— METHOD OF SEQUESTRATION The sequestration of witnesses rests within the discretion of the trial court. United States v. Harris, 409 F. 2d 77 (4th Cir. 1969); 6 Wigmore on Evidence [¶] 1837 (3d ed. 1940). Here, after consultation with counsel, the Court sequestered the witnesses outside the courtroom, where they returned immediately after testifying. Appellant contends that the method employed was inherently prejudicial “since he [had] no way of determining whether a subsequent witness [was] conforming his testimony to that of a former witness .” However, no specific prejudice is alleged and in any event, since no objection was made at trial, appellant is precluded from raising this issue on appeal. See United States v. Carter, 401 F.2d 748 (3d Cir. 1968), cert. denied, 393 U.S. 1103, 89 S.Ct. 905, 21 L.Ed.2d 797 (1969). IV— PRETRIAL IDENTIFICATION PROCEDURES Citing our opinion in United States v. Zeiler, 427 F.2d 1305 (3d Cir. 1970), Dorsey contends that the showing of certain photographs in the absence of counsel was a denial of his Sixth Amendment rights. This argument is precluded by our recent decision in United States ex rel. Reed v. Anderson, 461 F.2d 739 (3d Cir. 1972). Further, our review of the identification procedure at issue convinces us that it did not give rise to a “very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). V — RIGHT TO A PRELIMINARY HEARING No preliminary hearing was held since Dorsey was indicted prior to his arrest. Citing Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), appellant argues that the failure to hold a hearing pursuant to Rule" }, { "docid": "10728226", "title": "", "text": "resolved against the claims of this appellant. The language of Judge Friendly in United States v. Bennett, 409 F.2d 888 (2nd Cir. 1969) cert. denied, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101, reh. denied, 396 U.S. 949, 90 S.Ct. 376, 24 L.Ed.2d 256, meets with our approval and effectively disposes of the appellant’s claims in this respect. As stated by Judge Friendly in 409 F.2d 888, at 889, 900: \"Against this, to require that defense counsel be allowed or appointed to attend out-of-court proceedings where the defendant himself is not present would press the Sixth Amendment beyond any previous boundary. None of the classical analyses of the assistance to be given by counsel, Justice Sutherland’s in Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and Justice Black’s in Johnson v. Zerbst, supra, 304 U.S. [458] at 462-463, 58 S.Ct. 1019, [82 L.Ed. 1461] and Gideon v. Wainwright, supra, 372 U.S. [335] at 344-345, 83 S.Ct. 792, [9 L.Ed.2d 799], suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant’s absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered. Many other aspects of the prosecution’s interviews with a victim or a witness to a crime afford just as much opportunity for undue suggestion as the display of photographs; so, too, do the defense’s interviews, notably with alibi witnesses. Although in Simmons [Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed. 1247] the Court noted that the right to counsel was not involved, since the photographs were shown to the witnesses before any arrests had been made, Mr. Justice Harlan’s opinion contains, language bearing on this problem, 390 U.S. at 384, 88 S.Ct. 967, at 971: Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of" }, { "docid": "23526624", "title": "", "text": "940, 943 (2 Cir. 1964), cert, denied, 380 U.S. 951, 85 S.Ct. 1083, 19 L.Ed.2d 969 (1965). The judge’s refusal to give some instruction on the dangers of mistaken identification coupled with his unwarranted denial of counsel’s request to be allowed to object outside the presence of the jury thus would tip the scale for reversing this judgment, even if we were satisfied that the error in admitting the photographic identification testimony was itself harmless error. Reversed for a new trial. . It is not and could not successfully be here contended that the presentation of the photographs after indictment and without the presence of counsel was per se illegal. See United States v. Fitzpatrick, 437 F.2d 19, 25-26 (2 Cir. 1970); United States v. Mojica, 442 F.2d 920, 921 (2 Cir. 1971). See also United States v. Bennett, 409 F.2d 888, 898-900 (2 Cir. 1969), cert. denied sub nom. Haywood v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L. Ed.2d 101 (1970). However, prosecutors might well consider whether they would not only better protect the rights of the defendant but save themselves much needless argument if, in a case like this, where the defendant was in custody and there was no time pressure, they would have a properly conducted lineup. Compare Simmons v. United States, 390 U.S. 377, 386 n. 6, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). . In liglit of our conclusion that the second array was impermissibly suggestive, we need not pass upon the argument that defense counsel's cross-examination of Agent Sweeney at the suppression hearing with respect to the circumstances of the identification was improperly curtailed. . The record and the briefs contain much discussion over the fact that several bank employees had earlier said that the robber wearing the navy blue pea jacket was only some 5'6\" to 5'S\" in height, whereas, as shown by his post-arrest photograph, Fernandez is 6' tall even without the added height of the Afro. In connection with this, defense counsel requested, but never succeeded in obtaining, material allegedly in the Government’s files showing the dimensions of" }, { "docid": "6907532", "title": "", "text": "day the prosecutor exhibited nine photographs to Levine for the purpose of determining whether he recognized “O’Connor’s” picture among them. Defense counsel introduced the photographs into evidence and extensively cross-examined Levine on his selection. Thus the jury was fully informed of the nature of the photographic identification to assist it in weighing Levine’s credibility. The record reveals no basis for a claim that the identification procedure was impermissibly suggestive. Cf. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Baker, 419 F. 2d 83, 89-90 (2 Cir. 1969), cert. denied, 397 U.S. 976, 90 S.Ct. 1096, 25 L.Ed.2d 271 (1970). Under these circumstances, the photographic identification, in the absence of appellant’s counsel, was not constitutionally proscribed. United States v. Bennett, 409 F.2d 888, 898-900 (2 Cir. 1969); accord, United States v. Ballard, 423 F.2d 127 (5 Cir. 1970); contra, United States v. Zeiler, 427 F.2d 1305 (3 Cir. June 5, 1970). Shortly before he was called to testify, Levine was asked by the prosecutor to leave the witness room during a recess “to see if O’Connor was in the courtroom.” Levine entered the courtroom and observed among the four people there a person (presumably the appellant) who “resembled O’Connor.” Thereupon Levine returned to the witness room and informed the prosecutor that he had seen someone who “looked like O’Connor,” but that he could not be sure of his identification. The prosecutor did not press him for a positive identification and, as previously indicated, Levine’s testimony on the issue at trial was equivocal. Appellant contends that Wade entitled him to advance notice of the walk through and to the assistance of counsel during the proceeding. We agree. Although Wade was directly concerned only with a formal post-indictment lineup, we find its principles equally applicable to an informal post-indictment confrontation arranged by the Government. Cf. Mason v. United States, 134 U.S. App.D.C. 280, 414 F.2d 1176 (1969). Indeed, the more informal the viewing procedure the greater the possibility of subtle suggestiveness. Long v. United States, 137 U.S.App.D.C. 811, 314, 424 F.2d 799, 802" }, { "docid": "8098746", "title": "", "text": "16, 1969 photographic identification could not be shown at trial and that Arline Holloway could not testify as to her prior identification of Johnson by means of photographs. Justice Murtagh, however, denied Johnson’s motion to suppress any in-court identification. He held that Johnson did not have a right to counsel at the photographic identification session; that the identification procedure in question was not impermis-sibly suggestive; and, in any event, that the in-court identification would be based exclusively on the original identification and would not be tainted by the photographic identification. At trial Arline Holloway identified Johnson as the assailant and adhered to her identification despite some inconsistencies developed by defense counsel. II. Relying on United States v. Wade, 388 U.S. 218 (1967), Johnson contends that he had a right to have his counsel present at the post-indictment photographic identification session where Arline Holloway selected his photograph as one of the assailants. In United States v. Bennett, 409 F.2d 888, 898-900 (2 Cir. 1969), cert. denied sub nom. Haywood v. United States, 396 U.S. 852 (1970), a case involving a post-arrest, pre-indictment photographic identification, we rejected appellant’s claim that he had a right to have his counsel present. We have consistently adhered to this position and have also followed it with respect to post-indictment photographic identifications such as in the present case. See, e. g., United States v. Fernandez, 456 F.2d 638, 641 n. 1 (2 Cir. 1972); United States v. Mojica, 442 F.2d 920, 921 (2 Cir. 1971); United States v. Fitzpatrick, 437 F.2d 19, 25-26 (2 Cir. 1970). The reasons for not extending Wade to post-arrest photographic identifications were cogently set forth by Chief Judge Friendly in United States v. Bennett, supra, 409 F.2d at 899-900, and apply equally to post-indictment identifications: “[T]o require that defense counsel be allowed or appointed to attend out-of-court proceedings where the defendant himself is not present would press the Sixth Amendment beyond any previous boundary. None of the classical analyses of the assistance to be given by counsel . . . suggests that counsel must be present when the prosecution is interrogating witnesses" }, { "docid": "878771", "title": "", "text": "of the petition. Affirmed. . Pella was not entitled to be represented by counsel at the photographic displays. See United States ex rel. Johnson v. New York Dept. of Correctional Services, 461 F.2d 956 (2d Cir. 1972) (no right to counsel at post-indictment, pre-trial display); United States v. Bennett, 409 F.2d 888, 898-900 (2d Cir.), cert. denied sub nom. Jessup v. United States, 396 U.S. 852, 90 S.Ct. 117, 24 L.Ed.2d 101 (1969) (no right to counsel at post-arrest pre-indictment display). . In Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the test established by the Court for use in cases involving pre-trial identification by photograph contains the slightly different language “impermissibly” suggestive. In the Simmons and Stovall progeny, the tests have been virtually equated. See United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-15 (2d Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970). . 388 U.S. at 302, 87 S.Ct. 1967. Or, whether the procedure is so “conducive to irreparable misidentification” under Simmons v. United States, supra. . We also find both United States ex rel. Gonzalez v. Zelker, supra, and United States ex rel. Rivera v. McKendrick, 448 F.2d 30 (2d Cir. 1971), cert. denied, 404 U.S. 1025, 92 S.Ct. 678, 30 L.Ed.2d 675 (1972), to be distinguishable on their facts. In the former case, only two photographs were shown to the identifying witness and they were of the two defendants charged with the robbery. In the latter, the witness was shown a single photograph, presumably of defendant, and instead of making an identification, he inquired of the police officer, “Is this the man?” . Nor any “substantial likelihood of irreparable mistaken identification,” 388 U.S. at 302 87 S.Ct. 1967. OAKES, Circuit Judge (concurring): I concur in the result. I cannot agree with the proposition that Alder’s in-court identification was free of taint from an unnecessarily suggestive photographic display or derived from an independent source, a matter.as to which the State had the burden of proof “by clear and convincing evidence.” United States v." }, { "docid": "23526625", "title": "", "text": "better protect the rights of the defendant but save themselves much needless argument if, in a case like this, where the defendant was in custody and there was no time pressure, they would have a properly conducted lineup. Compare Simmons v. United States, 390 U.S. 377, 386 n. 6, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). . In liglit of our conclusion that the second array was impermissibly suggestive, we need not pass upon the argument that defense counsel's cross-examination of Agent Sweeney at the suppression hearing with respect to the circumstances of the identification was improperly curtailed. . The record and the briefs contain much discussion over the fact that several bank employees had earlier said that the robber wearing the navy blue pea jacket was only some 5'6\" to 5'S\" in height, whereas, as shown by his post-arrest photograph, Fernandez is 6' tall even without the added height of the Afro. In connection with this, defense counsel requested, but never succeeded in obtaining, material allegedly in the Government’s files showing the dimensions of the interior of the bank so as to permit a calculation of the height of the man wearing the dark pea jacket in the surveillance photographs. This should be promptly furnished if available; if not, the Government should cooperate in enabling counsel to get this material from the bank. There is also much debate about a list of some 30 persons who were in the bank at the time of the robbery, allegedly compiled by Manager O’Connor, and a list of the names of nine such people which Agent Sweeney made up, at the request of defense counsel, in the course of the first trial. The latter list was introduced as a defense exhibit, but could not be located at the second trial. We have expressed our concern at the careless way in which exhibits are often handled, see United States v. Silverman, 430 F.2d 106, 127 n. 2 (2 Cir. 1970), cert, denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971). See also Second Circuit Local Rule § 11. Whatever the rights" }, { "docid": "23526623", "title": "", "text": "the presence of the jury. The rule is so plain, and its purpose so obvious, that we can perceive no justification for ignoring it. Here we need not go so far as to hold, as was done in Hall v. United States, 378 F.2d 349 (10 Cir. 1967), that refusal to grant a request that objections to the charge be heard out of the presence of the jury calls for automatic reversal. However, enforcement of F.R.Cr.P. 30 demands a principle at least as severe as that which we have applied in civil cases. This is that such refusal will relieve a deprived party of the burden of showing that an objection to the charge pressed upon appeal has been sufficiently made below, and will demand reversal “if there is reasonable basis for concluding that the colloquy held in the presence of the jury as a result of the judge’s ignoring or denying a proper request [to permit the objection to be made outside the jury’s hearing] was prejudicial.” Swain v. Boeing Airplane Co., 337 F.2d 940, 943 (2 Cir. 1964), cert, denied, 380 U.S. 951, 85 S.Ct. 1083, 19 L.Ed.2d 969 (1965). The judge’s refusal to give some instruction on the dangers of mistaken identification coupled with his unwarranted denial of counsel’s request to be allowed to object outside the presence of the jury thus would tip the scale for reversing this judgment, even if we were satisfied that the error in admitting the photographic identification testimony was itself harmless error. Reversed for a new trial. . It is not and could not successfully be here contended that the presentation of the photographs after indictment and without the presence of counsel was per se illegal. See United States v. Fitzpatrick, 437 F.2d 19, 25-26 (2 Cir. 1970); United States v. Mojica, 442 F.2d 920, 921 (2 Cir. 1971). See also United States v. Bennett, 409 F.2d 888, 898-900 (2 Cir. 1969), cert. denied sub nom. Haywood v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L. Ed.2d 101 (1970). However, prosecutors might well consider whether they would not only" }, { "docid": "23189770", "title": "", "text": "for the trial court to hold that the government established its burden of proving by clear and convincing evidence that the in-court testimony was not tainted. 427 F.2d 1308. Contrariwise in Zeiler II, after remand, we were able to reach the opposite conclusion in a review of a display of photographs involving other witnesses in the first trial. 447 F.2d 993 (3d Cir. 1971). Indeed, Wade and Gilbert contain sufficient references suggesting that the court did not consider the photographic identification process as a procedure extremely difficult to reconstruct at trial. Wade spoke of “fingerprints, blood sample, clothing, hair, and the like,” and said that the “variables in techniques [are] few enough.” 388 U.S. at 227, 87 S.Ct. at 1932. Gilbert held that the taking of exemplars of handwriting was not a critical stage because “there is minimal risk that the absence of counsel might derogate from his right to a fair trial.” 388 U.S. at 267, 87 S.Ct. at 1953. And as Judge Friendly observed in United States v. Bennett, 409 F.2d 888, 898-900 (2d Cir. 1969), cert. denied, Jessup v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101, rehearing denied, 396 U.S. 949, 90 S.Ct. 376, 24 L.Ed.2d 256: in Wade itself, the Court listed as one of the ways the prosecution might attempt to show that a witness’ identification of defendant at trial was not the fruit of a lineup held in the absence of counsel a showing of “the identification by picture of the defendant prior to the lineup,” 388 U.S. at 241, 87 S.Ct. 1926, at 1940, which clearly implies that such identifications are permissible even when defendant’s counsel is not present. We turn now to the pervasive concern of the Court — “the vagaries of eyewitness identification.” We do not minimize the importance of imposing safeguards which the Court described as “pe culiarly riddled with innumerable dangers and variable factors.” 388 U.S. at 228, 87 S.Ct. at 1933. Indeed, exercising our supervisory power in United States v. Barber, 442 F.2d 517, 528 (3d Cir. 1971), we imposed mandatory jury instructions designed" }, { "docid": "12113660", "title": "", "text": "was only tentative into one that is positively certain,” Solomon v. Smith, 645 F.2d 1179, 1185 (2d Cir.1981). The procedural principles define the proper role of the federal habeas court in determining the facts to which the substantive principles are to be applied. In general, a pretrial photographic identification procedure used by law enforcement officials violates due process if the procedure “is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1969); accord Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). When the number of photographs shown has not been so small as to make the presentation itself unfairly suggestive, see United States v. Boston, 508 F.2d 1171, 1177 (2d Cir.1974) (eight not impermissibly suggestive), cert. denied, 421 U.S. 1001, 95 S.Ct. 2401, 44 L.Ed.2d 669 (1975); see also United States v. Bennett, 409 F.2d 888, 898 (2d Cir.) (six not impermissibly suggestive), cert. denied, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969), and there is nothing suggestive in the officials’ manner of presentation, the principal question is whether the picture of the accused, matching descriptions given by the witness, so stood out from all of the other photographs as to “suggest to an identifying witness that [that person] was more likely to be the culprit.” United States v. Archibald, 734 F.2d 938, 940 (2d Cir.1984). We have found, for example, that a photographic array was impermissibly suggestive when witnesses had described a bank robber as a light-skinned Black man with an Afro haircut, and of the six photographs presented, only that of defendant showed a Black having a light skin tone. United States v. Fernandez, 456 F.2d 638 (2d Cir.1972). And in addressing the similar question of the suggestiveness of a lineup, we have held that the presence of only the defendant wearing a shirt of the color described by witnesses was impermissibly suggestive. United States ex rel. Cannon v. Montanye, 486 F.2d 263 (2d Cir.1973), cert. denied, 416" }, { "docid": "14501563", "title": "", "text": "linking him to the knapsack found near the crime scene; his expenditure of a large sum of cash to purchase a car and money orders, in the names of other people, shortly after the robbery; Anglin’s departure from New York the day after the FBI interviewed Beckford about the robbery; the false name he gave to the Georgia police; and his false exculpatory statements when interviewed by the FBI: all combine circumstantially to identify Anglin as the robber, or to show his consciousness of guilt, which in practical terms comes to the same thing. While this evidence may not have compelled the jury to draw the inferences of identity and guilt suggested by the government, it certainly permitted it to do so; and, viewing this proof together with the testimony of the eyewitnesses, we cannot overturn the conviction on the ground of insufficiency of evidence that Anglin robbed the City College Branch. The In-Court Identification Anglin next contends that the district court should have suppressed teller Marshall’s in-court identification of him as the robber. We review a district court’s decision to admit identification evidence for clear error. See Salameh, 152 F.3d at 125. As noted, Marshall’s prior identification of Anglin was from a photo array. Anglin argues that this furnished an inadequate basis for Marshall’s in-court identification. In aid of his argument, Anglin reminds us of Judge Friendly’s dictum in United States v. Fernandez, 456 F.2d 638, 641 n. 1 (2d Cir.1972): It is not and could not successfully be here contended that the presentation of the photographs after indictment and without the presence of counsel was per se illegal. However, prosecutors might well consider whether they would not only better protect the rights of the defendant but save themselves much needless argument if, in a case like this, where the defendant was in custody and there was no time pressure, they would have a properly conducted lineup. (citations omitted). In his opinion in United States v. Boston, 508 F.2d 1171 (2d Cir.1974), cert. denied, 421 U.S. 1001, 95 S.Ct. 2401, 44 L.Ed.2d 669 (1975), District Judge Frankel, sitting by" }, { "docid": "12961102", "title": "", "text": "We are not told whether the witness appeared later or whether he did or did not testify. The granting of the continuance rested in the sound discretion of the trial judge. No prejudice has been shown. V. VI. We consider here both contentions No. 5 and No. 6. Petitioner’s contention No. 5 is that the trial court allowed the admission of evidence of a pretrial lineup to bolster the courtroom identification. Petitioner’s claim No. 6 is that “counsel should have been notified and counsel's presence a prerequisite to the identification by picture of petitioner prior to the pretrial line-up.” In his petition he specified one witness (unnamed) testified that the witness identified petitioner from a group of photographs brought to him prior to the pretrial line-up. In his brief he states “various witnesses” were shown photographs of petitioner. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) involved use of photographs for identification. The Court said, in referring to identification by photograph, “We are unwilling to prohibit its em ployment, either in the exercise of our supervisorial power, or, still less, as a matter of constitutional requirement. Instead we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidenti-fication.” (p. 384, 88 S.Ct. p. 971). Various circuits have considered the contention that the right to counsel at a line-up, held to exist in Wade and Gilbert, should be extended to a case involving an out-of-court identification by use of photos. The following cases hold that Wade and/or Gilbert do not apply to an out-of-court photographic identification. McGee v. United States (10 Cir. 1968) 402 F.2d 434, 436, cert. denied 394 U.S. 908, 89 S.Ct. 1020, 22 L.Ed.2d 220; United States v. Robinson (7 Cir. 1969) 406 F.2d 64, 66-68; United States v. Bennett (2 Cir. 1969) 409 F.2d 888, 898-900; Rech" }, { "docid": "14501565", "title": "", "text": "designation, quoted Judge Friendly’s observation in Fernandez, but then went on to say: The court has not held or intimated, however, that, as the appellants now argue, law enforcement officers must employ a lineup rather than photographs whenever a suspect is in custody and available. Indeed, the court has rejected the argument that it is prejudicial error for the trial judge to deny a defendant’s request for a lineup prior to trial. Id. at 1176-77. Prior to this Court’s decisions in Fernandez and Boston, the Supreme Court in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), while acknowledging that in contrast to a photographic identification “a corporeal identification ... is normally more accurate,” id. at 386 n. 6, 88 S.Ct. 967, affirmed the propriety of photographic arrays, relying upon “a course of cross-examination at trial which exposes to the jury the method’s potential for error” and explicitly declining “to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement,” id. at 384, 88 5.Ct. 967. In the decades following these decisions, no case has departed from the rule that a witness may testify to a prior out-of-court identification based on a photo array if that array was not tainted. Each ease turns on its own circumstances; but a prior identification from a photo array will be excluded only if the procedure “is so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law,” United States v. Simmons, 923 F.2d 934, 950 (2d Cir.) (internal quotation marks omitted), cert. denied, 500 U.S. 919, 111 S.Ct. 2018,114 L.Ed.2d 104 (1991), a challenge that Anglin does not make on this appeal. An unbroken line of our decisions, of which Salameh, 152 F.3d at 125, is a recent example, permits use of a non-suggestive photo array for identification purposes and trial testimony based upon that identification. See also United States v. Thai, 29 F.3d 785, 807-08 (2d Cir.), cert. denied sub nom. Lan Ngoc Tran v. United States, 513 U.S. 977," }, { "docid": "23443973", "title": "", "text": "aptly, his lack of recollection — of the photographic identification. Appellant also objects to the court’s having instructed the jury that it could “consider” Perkins’ photographic identification and sketch without having given the instruction requested by the defendant as to the dangers inherent in eyewitness identification. In United States v. Fernandez, 456 F.2d 638, 643-44 (2 Cir. 1972), we said: While a defendant is not entitled to a reading of all that was said about the dangers of misidentification in United States v. Wade, supra, 388 U.S. [218] at 228-236, 87 S.Ct. at 1926, 18 L.Ed.2d 1149, and Simmons v. United States, supra, 390 U.S. [377] at 383-384, 88 S.Ct. at 967, 19 L.Ed.2d 1247, we would think it reasonable that a properly drafted instruction, drawing particularly on Mr. Justice Harlan's language in Simmons, should be given if requested. Whether failure to do so would constitute reversible error would depend upon the circumstances. The reversal in that case rested on other grounds. Defendant has cited no decision holding that the giving of such a charge is mandatory, and a number have refused to do so. United States v. Evans, 484 F.2d 1178, 1187-88 (2 Cir. 1973); United States v. Gentile, 530 F.2d 461, 469 (2 Cir.), cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976); United States v. Barber, 442 F.2d 517, 525-26 (3 Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971) (noting “formidable precedential authority” that cautionary instruction is not required). This would be an exceedingly inappropriate case for seeking to make new law on this subject. The identifications were only a part of the case that Marchand was the supplier, a less important part than counsel would have us believe, and the circumstances were such that a cautionary instruction might have led the jury away from the truth rather than toward it. (2) Alleged errors concerning Roy’s grand jury testimony. Defendant complains in regard to the Government’s summation and the charge with respect to Roy’s grand jury testimony. The complaints about the summation relate to statements that Roy “gave sworn" }, { "docid": "23526618", "title": "", "text": "walk slowly along the jury box demonstrating his left side. While it could very well be that the jury found Fernandez guilty solely on the basis of their own comparison of him with the surveillance photographs, as they could properly have done without any eyewitness testimony, and upon eye witnesses’ in-court identification of defendant, which, as we indicate below, may properly be admitted again upon a retrial, we cannot say that under the circumstances of this case the testimony of Mrs. Kalata and Mr. Pesch concerning their photographic identification on March 2, 1971, did not play a part in the result. We need not decide, however, whether the admission of this testimony alone would require reversal since the combined effect of the error in admitting the photographic identification testimony, in failing to give a cautionary instruction on the danger of misidentification and in requiring defense counsel to make her objections to the charge in the presence of the jury, the latter two discussed in Part IV, infra, calls for a new trial. What has just been written nearly suffices to answer the question whether the photographic identification gave rise to such a “substantial likelihood of irreparable misidentification,” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), on the part of the four employees who made this — Mrs. Kalata, Mr. Pesch, Mr. O’Connor (the bank manager) and Mr. Benjamin — that they should be precluded from making an in-court identification at a new trial. Cf. United States ex rel. Phipps v. Follette, 428 F.2d 912 (2 Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970); United States v. Sutherland, 428 F.2d 1152, 1154-1156 (5 Cir. 1970). On this point, the employees’ rejection of the earlier photographic array indeed has great force. The robbery took five to seven minutes during daylight hours, and there is enough in the record to show, without any further “taint” hearing, that the witnesses had excellent opportunity for observation and displayed no uncertainty about their initial identification. See United States ex rel. Geralds v. Deegan, 307" }, { "docid": "2388957", "title": "", "text": "trial judge to deny a de fendant’s request for a lineup prior to trial. United States v. Ravich, 421 F.2d 1196, 1203 (2d Cir.), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970). It would seem to follow a fortiori that the argument of the appellants before us must fail. And we are not persuaded that the view taken in Ravich, seemingly shared in other Circuits which have considered the problem, see United States v. King, 149 U.S.App.D.C. 61, 461 F.2d 152, 155 (1972), should be repudiated. Coming, then, to the photographic identifications here in question, the appellants complain of the numbers of photographs in the spreads, the use of the photograph that had been published in a newspaper story, and the re-use of some photographs in the spread containing Moore’s picture after they had been used in the spread including Boston’s. We have considered each of these points seri-atim, and all of them cumulatively, and rule against the claims that the out-of-court identification procedures were “im-permissibly suggestive,” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), or “so unnecessarily suggestive and conducive to irreparable mistaken identification,” Sto-vall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), as to warrant reversal. Boston’s photograph was contained in a spread of eight, Moore’s in a spread of nine. While a spread of ten photographs might be preferable, see Sobel, Eye-Witness Identification: Legal and Practical Problems 110 (1972), there is no magic number. Appellants’ complaint that there were too few photographs is not substantial. Cf. United States v. Kaylor, 491 F.2d 1127, 1131 (2d Cir. 1973) (nine photographs); United States v. Bennett, 409 F.2d 888, 898 (2d Cir.), cert. denied, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969) (six photographs). No more impressive is the argument of appellant Moore that the spread from which Jackson and Dente identified him contained four photos that had been in the spreads used previously to identify Boston and Washington. The nature of the asserted prejudice from this is never quite specified." }, { "docid": "14501564", "title": "", "text": "review a district court’s decision to admit identification evidence for clear error. See Salameh, 152 F.3d at 125. As noted, Marshall’s prior identification of Anglin was from a photo array. Anglin argues that this furnished an inadequate basis for Marshall’s in-court identification. In aid of his argument, Anglin reminds us of Judge Friendly’s dictum in United States v. Fernandez, 456 F.2d 638, 641 n. 1 (2d Cir.1972): It is not and could not successfully be here contended that the presentation of the photographs after indictment and without the presence of counsel was per se illegal. However, prosecutors might well consider whether they would not only better protect the rights of the defendant but save themselves much needless argument if, in a case like this, where the defendant was in custody and there was no time pressure, they would have a properly conducted lineup. (citations omitted). In his opinion in United States v. Boston, 508 F.2d 1171 (2d Cir.1974), cert. denied, 421 U.S. 1001, 95 S.Ct. 2401, 44 L.Ed.2d 669 (1975), District Judge Frankel, sitting by designation, quoted Judge Friendly’s observation in Fernandez, but then went on to say: The court has not held or intimated, however, that, as the appellants now argue, law enforcement officers must employ a lineup rather than photographs whenever a suspect is in custody and available. Indeed, the court has rejected the argument that it is prejudicial error for the trial judge to deny a defendant’s request for a lineup prior to trial. Id. at 1176-77. Prior to this Court’s decisions in Fernandez and Boston, the Supreme Court in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), while acknowledging that in contrast to a photographic identification “a corporeal identification ... is normally more accurate,” id. at 386 n. 6, 88 S.Ct. 967, affirmed the propriety of photographic arrays, relying upon “a course of cross-examination at trial which exposes to the jury the method’s potential for error” and explicitly declining “to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement,”" }, { "docid": "7582291", "title": "", "text": "women and a picture of defendant which was retouched to make him look like a woman (long hair was added to his picture). Defendant relies upon Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) to support his contention. However, Simmons is distinguishable on its facts from those of- this case. Here, unlike in Simmons, the eyewitness was thoroughly cross-examined in the presence of the jury as to the circumstances surrounding her viewing of the photographs, and the array of photographs from which the identification was made were shown to the jury. In addition, while in Simmons there was a positive identification of the suspect, in the instant case the eyewitness could only declare that a similarity existed between the defendant and the person she saw at the “robbed” teller’s window. The only reason she gave for even having had taken notice of this individual, under otherwise ordinary circumstances, was that the “woman” had her blouse on backwards. The District Court concluded, and we agree, that there was nothing unnecessarily suggestive about this identification method. See, United States v. Black, 412 F.2d 687, 690 (6th Cir. 1969), cert. denied 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970). However, even if the method was constitutionally circumspect, there, was other identification evidence which amply corroborated the eyewitness’ testimony (e. g., a positive identification by defendant’s accomplice), and if the pretrial identification method used in this case made admission of the eyewitness’ testimony constitutional error, it was harmless under the standards set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and Harrington v. United States, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). See also, United States v. De Bose (6th Cir. decided October 27, 1970); United States v. Satterfield, 410 F.2d 1351, 1354 (7th Cir. 1969), cert. denied. 399 U.S. 934, 90 S.Ct. 2250, 26 L.Ed.2d 806. The second issue raised by defendant is that the District Court erred in not dismissing his conviction for entering the bank for the purpose of committing a felony following" }, { "docid": "22078892", "title": "", "text": "a photographic array containing his picture shortly prior to trial. We reject these contentions. A defendant’s right to due process includes the right not to be victimized by suggestive police identification procedures, including suggestive displays of photographs, that create “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); see also Manson v. Brathwaite, 432 U.S. 98, 105 n. 8, 114, 97 S.Ct. 2243, 2249 n. 8, 2253, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972); Concepcion, 983 F.2d at 377; Jarrett v. Headley, 802 F.2d 34, 40-41 (2d Cir.1986). The fairness of a photographic array depends on a number of factors, including the size of the array, the manner of presentation by the officers, and the array’s contents. Concepcion, 983 F.2d at 377. If there is nothing inherently prejudicial about the presentation, such as use of a very small number of photographs, see, e.g., United States v. Bennett, 409 F.2d 888, 898 (2d Cir.) (array of six not so small as to be impermissibly suggestive), cert. denied, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969), or the use of suggestive comments, the “principal question is whether the picture of the accused, matching descriptions given by the witness, so stood out from all of the other photographs as to ‘suggest to an identifying witness that [that person] was more likely to be the culprit,’” Jarrett v. Headley, 802 F.2d at 41 (quoting United States v. Archibald, 734 F.2d 938, 940, modified on other grounds, 756 F.2d 223 (2d Cir.1984)). In this case, one month prior to trial, Colon was shown a photo spread of six Organization members and was asked if he could name them. At a Wade hearing (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)), held after Colon had begun to testify at trial, a government agent testified that Colon had proceeded to identify five of the six by their names or nicknames, including Rodriguez, who" }, { "docid": "878770", "title": "", "text": "three days after the crime, a period well within the time allowances recognized in this circuit. See United States ex rel. Rutherford v. Deegan, supra, 406 F.2d at 220 (10 days); United States ex rel. Bisordi v. LaVallee, 461 F.2d 1020, 1024 (2d Cir. 1972) (9 days). Finally, at trial both of the witnesses were cross-examined at length as to the certainty of their identifications, thereby considerably reducing the measure of possibility that Pella’s conviction was based on misidentification. See Simmons v. United States, supra; United States ex rel. Bisordi v. LaVallee, supra, at 1026. As to petitioner’s final contention that he was denied the opportunity to cross-examine Mrs. Cingarelli at trial, we are convinced that no such refusal took place, and we are in agreement with Judge Foley’s findings on the question. Petitioner has neither raised nor briefed this issue on appeal, and finding no error in the District Court’s judgment, we think the issue merits no further attention. For the reasons here stated, we affirm the denial of the writ and the dismissal of the petition. Affirmed. . Pella was not entitled to be represented by counsel at the photographic displays. See United States ex rel. Johnson v. New York Dept. of Correctional Services, 461 F.2d 956 (2d Cir. 1972) (no right to counsel at post-indictment, pre-trial display); United States v. Bennett, 409 F.2d 888, 898-900 (2d Cir.), cert. denied sub nom. Jessup v. United States, 396 U.S. 852, 90 S.Ct. 117, 24 L.Ed.2d 101 (1969) (no right to counsel at post-arrest pre-indictment display). . In Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the test established by the Court for use in cases involving pre-trial identification by photograph contains the slightly different language “impermissibly” suggestive. In the Simmons and Stovall progeny, the tests have been virtually equated. See United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-15 (2d Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970). . 388 U.S. at 302, 87 S.Ct. 1967. Or, whether the procedure is so “conducive to irreparable" } ]

[ { "docid": "23583322", "title": "", "text": "drum mounted in a frame, and driven by an electric motor. From the periphery of the drum extend a plurality of flexible fingers projected at an angle of inclination of about 14°. The fingers are arranged in spaced rows completely around the drum, each row being staggered with respect to the adjacent rows. Each finger has closely spaced screw-thread corrugations extending part way down the finger from the outer end. In the preferred form the fingers have a tapered bore extending from the outer or free end almost as far as the corrugations extend. The specifications also stated* that solid fingers would remove feathers but that the operation was speeded by the use of hollow fingers. Before a chicken is plucked it is immersed in hot water and the higher the temperature of the water, the more easily the feathers are removed. When chickens are prepared commercially for immediate sale, a water temperature of 128° is used. However, when the chickens are to be placed in cold storage, water of a lower temperature (semi-scald) is used. The operator presses the chicken against the fingers projecting from the revolving drum. By turning the chicken to different positions all parts of its body will be contacted by the fingers of the machine and the feathers will be removed by a rubbing or scrubbing action. Even when only the semi-scald has been used the Hunt manual machine will quickly remove up to 95% of the feathers without injuring the delicate outer layer of the chicken’s skin. When the higher temperature water is used, the Hunt manual machine removes practically all of the feathers within a period of 8 to 10 seconds. The patent in suit, although of comparatively recent date, has been the subject of considerable litigation. In Mueller et al. v. Campbell et al., D.C.S.D.Ohio, 68 F.Supp. 464, decided June, 1945, the action was against one Campbell who had been involved in one of the interference proceedings in the Patent Office. Judge Nevin held that the machine Claims 2, 3, 7, 10 and 17 and the finger Claims 12, 14 and 19" } ]

[ { "docid": "3243084", "title": "", "text": "to the institution of this suit claim 16 of the patent was disclaimed. Defendant was charged with the infringement of claims 2, 3, 7, 8, Í0, 12, 14, 17 and 19 by reason of its use of machines and fingers for such machines manufactured respectively by F. J. Albright Company and Gordon Johnson Company. The device disclosed by the patent comprises a hollow drum mounted in a frame and driven by an electric motor. From the outside surface of the' drum extend flexible fingers arranged completely around the drum and extending outward at an angle or inclination of 14 degrees. The fingers are arranged in spaced rows, each, row being staggered with reference to the adjacent rows. In the preferred form the fingers have a tapered bore extending from the outer or free end almost as far as the corrugations extend. The specifications recite that solid fingers would remove feathers but that the operation was speeded by the use of hollow fingers. Before a chicken is processed it is dipped in hot water, the temperature varying, dependent upon whether the chicken is being prepared for immediate sale or for cold storage. The operator places the chicken against the fingers projecting from the revolving drum and by turning the chicken to different positions all parts of its body are contacted by the fingers of the machine and the feathers ¡removed by a rubbing or scrubbing action. When higher temperatured water is used the machine removes practically all of the feathers within a period of from eight to ten seconds and the machine does a noticeably better job of picking than does the hand picker. The court found that, “Until the Hunt patent, and the disclosures made by Hunt, no machine had been built or constructed which successfully picked fowl by mechanical means. Such prior art as has been disclosed consists entirely of ‘paper’ patents for machines that were either never built or never operated in accordance with the disclosures of those patents.” The court also found that the machine defined by the finger claims of the patent “were new and useful," }, { "docid": "16996112", "title": "", "text": "of unclean hands, implied license and the other issues raised by the counter-claim and the reply thereto. It would serve no useful purpose, therefore, to discuss these questions further at this time. Such reference to them as is necessary is made in the Court’s Findings and Conclusions. The issues remaining to be now determined are those of (1) validity of the Patent and (2) infringement. VALIDITY. Involved in the question of the validity of the patents are the defenses asserted by defendants of (a) anticipation; (b) exercise of invention as distinguished from mechanical skill; (c) whether or not Claims 16, 17 and 19 are indefinite and ambiguous, and (d) whether or not claims 12, 14, and 16 are based upon new matter in the patent-in-suitl The patent-in-suit was issued on October 27, 1942. It is for “Feather-picking apparatus for fowls and the like.” It contains 19 claims. Of these, claims 2, 3, 7, 10, 12, 14, 16, 17 and 19 only are here in issue. These claims may be further classified as follows: Claims 2, 3, 7, 10 and 17 are machine claims; Claims 12, 14 and 19 are Finger Claims; and Claim 16 is a Method claim. The device of the patent-in-suit consists of an apparatus used in the poultry business for picking feathers from fowls in the course of preparing poultry for the market. Its purpose, broadly, is to eliminate hand picking of feathers from poultry. Basically, the machine consists of a drum mounted in a frame and revolved by an electric motor, having flexible fingers arranged completely around the drum and extending outwardly from the periphery thereof. A chicken (or other fowl) which has previously been scalded, is pressed against the revolving drum and the fingers remove the feathers by a rubbing or scraping action. The operator manipulates the bird by turning it and twisting it so that all parts of the body contact the fingers of the revolving drum. (A) Anticipation. (As to the Machine and Finger Claims.) At the trial defendants selected claim 2 as typical of the Machine claims in issue. Plaintiffs, however, prefer" }, { "docid": "6314511", "title": "", "text": "the Southern District of Ohio in the case of the plaintiffs herein v. Harold C. Campbell, H. D. Thomas, and William E. Ginovan, in a decision, plaintiffs’ Exhibit 34, reported at 68 F.Supp. 464, which decision was affirmed by the Court of Appeals for the Sixth Circuit in a decision reported at 159 F.2d 803. Each of claims 2, 7, 10, 12, 17 and 19 was held to be infringed by the Campbell and Thomas Machine illustrated by plaintiffs’ Exhibit 36 herein. 6. In a decision finding Campbell and Thom,as guilty of civil contempt, plaintiffs’ Exhibit 98, reported at 68 F.Supp. 475, the District Court for the Southern District of Ohio held each of claims 2, 3, 7, 10, 12, 14, 17 and 19 of the patent here in suit to be infringed by the “modified” machines sold by Campbell and Thomas embodying solid fingers and illustrated in plaintiffs’ Exhibit 102 herein. The patent in suit is also involved in a suit of the plaintiffs herein against Robert F. Wolfinger d. b. a. Superior Manufacturing Company, 68 F.Supp. 485, in which case the District ’Court for the Southern District of Ohio found that the plaintiffs were entitled to a bond or a preliminary injunction against the manufacture by defendants of machines illustrated in plaintiffs’ Exhibit 109 herein. 7. The device shown and described in the Hunt patent in suit consists of an apparatus used in the poultry business for picking feathers from fowl in the course of preparing poultry for the market. The machine comprises a structure consisting of a drum mounted in a frame, and revolved by an electric motor, having flexible fingers arranged completely around the drum, and extending outwardly from the periphery thereof. In operating the device, a chicken (or other fowl) which has previously been scaled is pressed against the revolving drum, and the fingers remove the feathers by a rubbing or scrubbing action. The operator manipulates the chicken by turning it and twisting it so that all parts of the body contact the fingers of the revolving drum. 8. The problem which existed in the" }, { "docid": "8138437", "title": "", "text": "to the provision of novel “fingers” for use in removing feathers. The problem was to provide a machine which could be used to pick fowls economically, in lieu of hand picking, which was slow and tedious and hard on the pickers, and which resulted in skin tears and other injuries to the fowl. Such a machine, in addition to preserving the flesh without injury, should preferably preserve the “bloom” on the skin, which if maintained, adds to the salability of the fowl and keeps out germs; and finally, such apparatus must be capable of effective use on a fowl which has received a “slack” scald, that is, has been dipped in water no hotter than 128 degrees. Fowls which have received hotter scalds are easier to pick, but do not keep as long in cold storage and some times can not be prepared by cooks in the manner they might wish. There was no mechanical picker on the. market up to 1936. Practically all picking was by hand, with a supplementary wax dip to remove smaller feathers. Hunt, a rubber worker, began his experiments in 1931, using rubber flaps on a two-inch rotating pipe. He followed this with experimental disks, combs, etc. The first commercial model, consisting of a wooden drum, and hollow rubber fingers, was used on April 15, 1939. The Hunt apparatus, patented in 1942, consisted of a hollow, motor-driven roller or drum from the outer periphery of which a plurality of flexible fingers projected at an angle of inclination of about 14 degrees from the radial. The fingers were arranged completely around the drum in a plurality of spaced rows, each row of'which was staggered with respect to the next. Being of flexible material, they could be mounted, removed and replaced by forcing the base through openings, extending through the rim portion, of the drum. In the preferre.d form, the outside of each finger, for the greater portion of its length, was provided with a plurality of relatively closely-spaced corrugations or projections. In the preferred type these projections were indicated as screw threads, although it was said" }, { "docid": "7599100", "title": "", "text": "an annular rotatable member and a plurality of spaced transverse rows of flexible fingers extending outwardly from said member, a plurality of said fingers being in each row, each finger being provided with a plurality of spaced projections arranged on the side thereof so that upon bending of each finger such projections successively engage the feathers of a fowl pressed thereagainst, each finger being provided with a longitudinal bore extending at least partially inwardly from the outer end of the finger. “Claim 17. A poultry plucking machine comprising a rotatable drum and a plurality of flexible studs projecting outwardly from the drum, each stud having a plurality of projections on the face thereof, the outer end' of each stud being recessed to provide edges thereon in spaced relation in the plane of the edges.” The finger claims are as follows: “Claim 12. A poultry plucking finger member of the character described comprising a substantially cylindrical body formed of elastic material and having projections on the outer surface thereof, a portion of said body throughout its length being hollow, the walls of the body being sufficiently thick to avoid collapse in a di rection parallel to the longitudinal axis when the finger is in use. “Claim 14. A poultry plucking finger member of the character described comprising a substantially cylindrical body formed of elastic material and having projections on the outer surface thereof, a portion of said body having a thin wall and the remainder thereof having thicker wall portions, the walls of the body being sufficiently thick to avoid collapse in a direction parallel to the longitudinal axis when the finger is in use. “Claim 19. A plucking finger for a rotary drum of a plucking machine comprising a member greater in length than width with a plurality of projections on the outer surface of the portion of greater length, the outer surface of the free and thereof being recessed to provide space surfaces.” The court takes notice that claims 3, 14, 17 and 19 of the Hunt patent do not recite the hollow features found in some of the" }, { "docid": "8138438", "title": "", "text": "smaller feathers. Hunt, a rubber worker, began his experiments in 1931, using rubber flaps on a two-inch rotating pipe. He followed this with experimental disks, combs, etc. The first commercial model, consisting of a wooden drum, and hollow rubber fingers, was used on April 15, 1939. The Hunt apparatus, patented in 1942, consisted of a hollow, motor-driven roller or drum from the outer periphery of which a plurality of flexible fingers projected at an angle of inclination of about 14 degrees from the radial. The fingers were arranged completely around the drum in a plurality of spaced rows, each row of'which was staggered with respect to the next. Being of flexible material, they could be mounted, removed and replaced by forcing the base through openings, extending through the rim portion, of the drum. In the preferre.d form, the outside of each finger, for the greater portion of its length, was provided with a plurality of relatively closely-spaced corrugations or projections. In the preferred type these projections were indicated as screw threads, although it was said they might be in other than spiral form so long as they were spaced relatively close together to permit a number to come into contact with the fowl when bent. At the outer end was a flange or projection of larger size than the spirals, for which it was claimed in the specification, that it speeded up feather removal, since it more readily entered the indentations in the body of the fowl. In the preferred form, the outer portion of the finger was hollow for a considerable part of its length. The hollowed portion had a conical bore with the largest diameter of the opening at the outer end. The specification stated that a solid finger would remove feathers, but that the operation was speeded up by the hollowed finger. The finger was of such strength, according to the specification, that although it flattened out somewhat in operation, its wall would not collapse upon itself, even when, in contact with the fowl, it was bent almost at right angles. The drum and motor which operated" }, { "docid": "7599098", "title": "", "text": "them, including Bouda, was merely an inventor’s dream. None of them was ever built and none of them ever picked a chicken. It is enough to say that Defendant’s Exhibits 34 and 35 omit the rollers which were Bouda’s means of plucking; Defendant’s Exhibit 36, supposed to illustrate the Richards patent, was not built in accordance with the Richards specification. It follows that the defense of prior art must fail and be disregarded. Marr Oil Heat Mach. Corp. et al. v. Hardinge Bros. Inc., D.C., 20 F.2d 241. It is my holding that the patent is valid as to all of the claims in suit; and, furthermore, that it is a pioneer patent, basic in nature, and constituted novel invention in a new field which had never before been successfully entered by any mechanical device. The claims are divided into two groups; i. e., the machine claims, being Nos. 2, 3, 7, 10 and 17, and the finger claims, being Nos. 12, 14 and 19. The machine claims are as follows: “Claim 2. A feather plucking device comprising a rotatable member having secured thereto means projecting from the outer surface thereof, said means being substantially cylindrical in shape, of elastic material, and having projections on the surface thereof, a portion of said means adjacent one end thereof being hollow. “Claim 3. A feather plucking device comprising a rotatable member having secured thereto' means projecting from the outer surface thereof, said means being substantially cylindrical in shape, of elastic material, and having projections on the surface thereof, a portion of said means ■having a thin wall and the remainder thereof having thicker wall portions. “Claim 7. Apparatus for removing feathers from fowls comprising a rotatable member and a plurality of spaced flexible fingers extending outwardly from said member, each finger being provided with a plurality of relatively closely spaced projections arranged so that upon bending of each finger such projections successively engage the feathers of a fowl pressed ■thereagainst, each finger being annular in cross-section and having said projections arranged completely therearound. “Claim 10. Apparatus for removing feathers from fowls comprising" }, { "docid": "8138439", "title": "", "text": "they might be in other than spiral form so long as they were spaced relatively close together to permit a number to come into contact with the fowl when bent. At the outer end was a flange or projection of larger size than the spirals, for which it was claimed in the specification, that it speeded up feather removal, since it more readily entered the indentations in the body of the fowl. In the preferred form, the outer portion of the finger was hollow for a considerable part of its length. The hollowed portion had a conical bore with the largest diameter of the opening at the outer end. The specification stated that a solid finger would remove feathers, but that the operation was speeded up by the hollowed finger. The finger was of such strength, according to the specification, that although it flattened out somewhat in operation, its wall would not collapse upon itself, even when, in contact with the fowl, it was bent almost at right angles. The drum and motor which operated it were mounted in a frame. Illustrations indicated that the upper portion of the drum was supported at an elevation about waist high, and was wholly inclosed in front and partially inclosed at the sides and rear by metal shields. The top portion thereof was exposed for operative purposes. The operator stood in front of the machine, and the exposed fingers moved in a direction away from him, although in their mounting they inclined backward from the direction of movement, toward the operator. In operation, the previously scalded fowl was held in contact with the moving fingers, and was manipulated to bring different parts of the body successively in contact therewith. The specification stated, “Since the angle of the fingers is opposite to -the direction of rotation, the fingers are readily bent and the speed of rotation is such that some of the projections * * * are continuously in engagement with the feathers of the fowl and quickly remove these feathers without tearing or otherwise injuring the skin. * * * By providing fingers" }, { "docid": "23583320", "title": "", "text": "the wing and tail to the small cover feathers, down feathers and pin feathers. In plucking a chicken it is very desirable to remove all the feathers without breaking the skin, because germs then may enter which will spoil the flesh of the chicken. In the 'commercial processing of chickens care must also be taken to avoid bruising and discoloring the flesh. For many years before Flunt there had been a strong and insistent demand for some device to remove feathers from fowl mechanically. Many skilled in the art had searched for a solution of the problem and many efforts were made to construct chicken picking devices, but none of them was successful. Hunt was a mechanic living in Akron, Ohio. In 1931 he started working in the basement of his home on the problem of developing a workable, efficient chicken picking device. His efforts failed until in 1937 he produced a machine that removed most of the feathers of a chicken, but was too slow in operation to be of commercial value. Hunt continued his research and in 1939 produced a machine substantially as shown by the drawings of the patent in suit. Hunt produced several machines by hand and sold them. Hunt filed his patent application on November 16, 1939. After three interferences in which the awards were to Hunt, and after claims had been rejected, amended and rewritten, and after a demonstration of the Hunt machine before the principal examiner of the Patent Office and his assistant, the patent in suit was issued on October 27, 1942. Conrad B. Mueller obtained an exclusive license on the Hunt invention and started to manufacture machines on a commercial scale. The machines met with immediate and widespread acceptance. The impact upon the industry is impressive. Within four years after the Hunt machines were first put on the market, about 85% of the commercially dressed poultry was picked on machines while the percentage at the present time is about 90%. Mueller assigned his exclusive license to the plaintiff, Greenbrier Company. The device shown by the patent in suit is a hollow" }, { "docid": "16996132", "title": "", "text": "2, 3, 7, 10, 12, 14, 16, 17 and 19 are here in issue. These claims are divided as follows: Claims 2, 3, 7, 10, and 17 are Machine Claims; Claims 12, 14 and 19 are Finger Claims, and Claim 16 is a Method 'Claim. 5. The device shown and described in the Hunt patent-in-suit consists of an apparatus used in the poultry business for picking feathers from fowl in the course of preparing poultry for the market. The machine comprises a structure consisting of a drum mounted in a frame, and revolved by an electric motor, having flexible fingers arranged completely around the drum and extending outwardly from the periphery thereof. In operating the device, a chicken (or other fowl) which has previously been scalded is pressed against the revolving drum, and the fingers remove the feathers by a rubbing or scrubbing action. The operator manipulates the chicken by turning it and twisting it so that all parts of the body contact the fingers of the revolving drum. 6. The problem which existed in the art prior to'the invention covered by the Hunt patent-in-suit was in general to pluck poultry (fowl) mechanically and specifically to remove feathers from poultry rapidly and effectively without injury to the poultry and in such a manner that quantity production could be obtained. This problem in particular had existed and had been recognized in the art at least since 1916 within the knowledge of the witnesses testifying in this case and to general knowledge always. At least since 1916 throughout the poultry industry there had been a need and a demand for a machine for plucking poultry, which would increase production and decrease the labor required, without injuring the poultry. Always there had been a demand and a need for a machine which would pluck poultry. 7. From time immemorial poultry has been plucked by hand. Hand plucking had many disadvantages which had long been recognized in the art. Hand plucking was slow and laborious, very unsanitary, expensive, and involved considerable loss from scuffing, barking, or breaking the skin of the poultry. 8. Leading" }, { "docid": "16996113", "title": "", "text": "3, 7, 10 and 17 are machine claims; Claims 12, 14 and 19 are Finger Claims; and Claim 16 is a Method claim. The device of the patent-in-suit consists of an apparatus used in the poultry business for picking feathers from fowls in the course of preparing poultry for the market. Its purpose, broadly, is to eliminate hand picking of feathers from poultry. Basically, the machine consists of a drum mounted in a frame and revolved by an electric motor, having flexible fingers arranged completely around the drum and extending outwardly from the periphery thereof. A chicken (or other fowl) which has previously been scalded, is pressed against the revolving drum and the fingers remove the feathers by a rubbing or scraping action. The operator manipulates the bird by turning it and twisting it so that all parts of the body contact the fingers of the revolving drum. (A) Anticipation. (As to the Machine and Finger Claims.) At the trial defendants selected claim 2 as typical of the Machine claims in issue. Plaintiffs, however, prefer to use claims 2 and 3 as representative. These claims read as follows: “2, a feather plucking device comprising a rotable member having secured thereto means projecting from the outer surface thereof, said means being substantially cylindrical in shape, of elastic material, and having projections on the surface thereof, a portion of said means adjacent one' end thereof being hollow. 3, a feather plucking device comprising a rotable member having secured thereto means projecting from the outer surface thereof, said means being substantially cylindrical in shape, of elastic material, and having projections on the surface thereof, a portion of said means having a thin wall and the remainder thereof having thicker wall portions.” Claim 12 — selected by defendants as representative (Br. pp. 32 et seq.) of the Finger Claims in issue- — -reads as follows: “12, a poultry plucking finger member of the character described comprising a substantially cylindrical body formed of elastic material and having projections on the outer surface thereof, a portion of said body throughout its length being hollow, the walls" }, { "docid": "3243083", "title": "", "text": "GARDNER, Chief Judge. This appeal is from a judgment holding Hunt Patent No. 2,300,157, for “Feather-Picking Apparatus for Fowls and the Like,” valid and infringed by certain chicken-picking machines used by appellant but built by others. The parties will be referred to as they were designated in the trial court. Plaintiff Anna May Hunt, Administratrix, is the owner and plaintiff Greenbrier Company is the licensee of the Hunt patent. The defendant is a poultry processor. Defendant challenged the validity of the patent, denied infringement, and affirmatively pleaded patent misuse. By stipulation of the parties the case was tried on the record made in an earlier suit under the same patent against Armour and Company, Hunt v. Armour & Co., D.C., 90 F.Supp. 767. The trial court found all the issues in favor of plaintiffs and entered judgment enjoining defendant from using or causing to be used any poultry-picking machines embodying the invention described in the Hunt patent and adjudging that plaintiffs recover general damages for the infringement. The Hunt patent contains 19 claims but prior to the institution of this suit claim 16 of the patent was disclaimed. Defendant was charged with the infringement of claims 2, 3, 7, 8, Í0, 12, 14, 17 and 19 by reason of its use of machines and fingers for such machines manufactured respectively by F. J. Albright Company and Gordon Johnson Company. The device disclosed by the patent comprises a hollow drum mounted in a frame and driven by an electric motor. From the outside surface of the' drum extend flexible fingers arranged completely around the drum and extending outward at an angle or inclination of 14 degrees. The fingers are arranged in spaced rows, each, row being staggered with reference to the adjacent rows. In the preferred form the fingers have a tapered bore extending from the outer or free end almost as far as the corrugations extend. The specifications recite that solid fingers would remove feathers but that the operation was speeded by the use of hollow fingers. Before a chicken is processed it is dipped in hot water, the temperature" }, { "docid": "16996119", "title": "", "text": "after which the feathers may be withdrawn by pneumatic or other means and conveyed to any suitable location.” The scheme of Morrison is not practicable for a commercial device — it would be even slower than hand picking. The Jahns (German) patents Nos. 450,-570 and 450,571 are respectively for a machine and roller “for the removal of scales from fish.” As plaintiffs point out (Br. p. 55) the only fair interpretation of the Jahns patent (No. 450,570) is that Jahns contemplated using in this patent only the type of teeth or brush shown in the second Jahns patent (No. 450,571). The device and fingers of the Griggs patent No. 920,566 differ in structure, mode of operation and results from the Hunt patent. The “pickers” (fingers) “are controlled in part by pneumatic means.” The rubber finger (or picker) of Griggs was to be expanded and contracted longitudinally with the view that feathers might be gripped in the corrugations of the contracted fingers and released when the finger was expanded as shown in figure 6. Even if a few feathers could be gripped in the folds of the finger and withdrawn, the device would be too slow for commercial use, nor was it ever so used. (B) Exercise of Invention as Distinguished from Mechanical Skill. Mr. Corey, defendant’s expert, testified (R. pp. 756, 757, see also Exhibit 50), that the unsolved problem of “poultry picking” was the invention and production of “a machine suitable for picking poultry rapidly and effectively without injury to the tissue of the fowl, and in such manner that quantity production may be attained.” As plaintiffs state in their brief (p. 46) the difficulty of a part of the problem (that is mechanically picking poultry without injury to the skin or flesh of the fowl) was enhanced by the variety of feathers which are grown upon chickens (Exhibits 51 and 54) and the various recesses and reentrant parts over the fowl which must be reached. Broadly speaking, there are five different kinds of feathers upon a chicken — the flight feathers, the cover feathers, the down feathers, the" }, { "docid": "16996120", "title": "", "text": "a few feathers could be gripped in the folds of the finger and withdrawn, the device would be too slow for commercial use, nor was it ever so used. (B) Exercise of Invention as Distinguished from Mechanical Skill. Mr. Corey, defendant’s expert, testified (R. pp. 756, 757, see also Exhibit 50), that the unsolved problem of “poultry picking” was the invention and production of “a machine suitable for picking poultry rapidly and effectively without injury to the tissue of the fowl, and in such manner that quantity production may be attained.” As plaintiffs state in their brief (p. 46) the difficulty of a part of the problem (that is mechanically picking poultry without injury to the skin or flesh of the fowl) was enhanced by the variety of feathers which are grown upon chickens (Exhibits 51 and 54) and the various recesses and reentrant parts over the fowl which must be reached. Broadly speaking, there are five different kinds of feathers upon a chicken — the flight feathers, the cover feathers, the down feathers, the hair feathers, and the pin feathers. Sometimes the pin feathers do not extend above the surface of the skin. It was necessary that the machine should remove substantially all of these feathers, no matter where they are located upon the fowl. They must be taken out from under the wings and from under the thighs. The evidence in the instant case shows that there are about 8,000 feathers on a chicken and that the Hunt machine removes all types of feathers from all positions of the fowl, doing so at the rate of approximately (1,000) feathers a second or perhaps even faster. There is no proof that any of the machines referred to in the prior art can or will pick poultry so rapidly and effectively without injury to the tissue of the fowl, and in such a manner that quantity production can be attained, nor is there any proof that a single machine of the prior art was ever used commercially. In a very recent decision (May 21, 1945), the Supreme Court in the" }, { "docid": "7599099", "title": "", "text": "plucking device comprising a rotatable member having secured thereto means projecting from the outer surface thereof, said means being substantially cylindrical in shape, of elastic material, and having projections on the surface thereof, a portion of said means adjacent one end thereof being hollow. “Claim 3. A feather plucking device comprising a rotatable member having secured thereto' means projecting from the outer surface thereof, said means being substantially cylindrical in shape, of elastic material, and having projections on the surface thereof, a portion of said means ■having a thin wall and the remainder thereof having thicker wall portions. “Claim 7. Apparatus for removing feathers from fowls comprising a rotatable member and a plurality of spaced flexible fingers extending outwardly from said member, each finger being provided with a plurality of relatively closely spaced projections arranged so that upon bending of each finger such projections successively engage the feathers of a fowl pressed ■thereagainst, each finger being annular in cross-section and having said projections arranged completely therearound. “Claim 10. Apparatus for removing feathers from fowls comprising an annular rotatable member and a plurality of spaced transverse rows of flexible fingers extending outwardly from said member, a plurality of said fingers being in each row, each finger being provided with a plurality of spaced projections arranged on the side thereof so that upon bending of each finger such projections successively engage the feathers of a fowl pressed thereagainst, each finger being provided with a longitudinal bore extending at least partially inwardly from the outer end of the finger. “Claim 17. A poultry plucking machine comprising a rotatable drum and a plurality of flexible studs projecting outwardly from the drum, each stud having a plurality of projections on the face thereof, the outer end' of each stud being recessed to provide edges thereon in spaced relation in the plane of the edges.” The finger claims are as follows: “Claim 12. A poultry plucking finger member of the character described comprising a substantially cylindrical body formed of elastic material and having projections on the outer surface thereof, a portion of said body throughout its" }, { "docid": "23583319", "title": "", "text": "DUFFY, Circuit Judge. U. S. Patent No. 2,300,157 for Feather-Picking Apparatus for Fowls And The Like was issued to George R. Hunt on October 27, 1942. This appeal is from a judgment holding Claims 2, 3, 7, 10, 12, 14, 17 and 19 of said patent valid and infringed by various chicken-picking machines constructed by E. J. Albright Company and Gordon Johnson Company and owned and used by defendant. Defendant urges the defenses of non-infringement, invalidity and patent misuse and argues that the doctrine of equivalents which it claims was relied on by the trial court may not be resorted to because of an alleged file wrapper estoppel. The patent in suit relates to improvements in picking feathers from fowl, and particularly to the provision of novel fingers for use in removing feathers. The problem confronting Hunt was to find some means or evolve or invent some device which would avoid the slow, tedious and expensive process of handpicking of fowl. There are 8000 feathers on a chicken, ranging from the large flight feathers on the wing and tail to the small cover feathers, down feathers and pin feathers. In plucking a chicken it is very desirable to remove all the feathers without breaking the skin, because germs then may enter which will spoil the flesh of the chicken. In the 'commercial processing of chickens care must also be taken to avoid bruising and discoloring the flesh. For many years before Flunt there had been a strong and insistent demand for some device to remove feathers from fowl mechanically. Many skilled in the art had searched for a solution of the problem and many efforts were made to construct chicken picking devices, but none of them was successful. Hunt was a mechanic living in Akron, Ohio. In 1931 he started working in the basement of his home on the problem of developing a workable, efficient chicken picking device. His efforts failed until in 1937 he produced a machine that removed most of the feathers of a chicken, but was too slow in operation to be of commercial value. Hunt continued" }, { "docid": "8138441", "title": "", "text": "that are hollow at their outer ends, when these fingers are bent, they flatten out somewhat and present a greater area on each projection for contact with the feathers.” It was further pointed out that in the case of feathers difficult to remove, the pressure of the fowl against the rotating fingers could be increased. It was claimed for this machine that its picking speed was 150 to 350 chickens per hour. It was certainly useful and met with speedy imitation. The drum and fingers could be used in an automatic process, although when so used, the evidence indicated that there was no attempt to clean pick; and were usually used in conjunction with the wax dip to which we have referred. Machines manufactured under the patent were notably successful commercially. Hunt entered into a license agreement with Mueller in 1939. Sales that year were 60; the next year 580; in 1941, 854; in 1942 (with priority restrictions on steel) 551; in 1943, 871; and to April 30, 1944, 265. Gross sales for those years were $971,558.40. Appellants insist that there was nothing revolutionary in the device, that it consisted basically of a rotatable drum with flexible fingers extending outwardly from the periphery thereof; and that this was an old combination operating in a number of prior art patents, including some in the chicken picking art. They point out rightly enough that lack of commercial recognition of prior art devices is not inconsistent with their full effect as anticipation, citing Republic Iron & Steel Co. v. Youngstown S. & T. Co., 6 Cir., 272 F. 386. But the same case adds the qualifications (on page 390) that when the question is, not whether there is full anticipation, “hut * * * whether the advance shown by the later over the earlier device is of an inventive character, the failure of the earlier to get recognition in the trade may be persuasive evidence that an apparently slight advance was more important than it seems.” And no claim is made by appellants that any single device fully anticipates. Moreover, appellants’ expert, Corey," }, { "docid": "8138440", "title": "", "text": "it were mounted in a frame. Illustrations indicated that the upper portion of the drum was supported at an elevation about waist high, and was wholly inclosed in front and partially inclosed at the sides and rear by metal shields. The top portion thereof was exposed for operative purposes. The operator stood in front of the machine, and the exposed fingers moved in a direction away from him, although in their mounting they inclined backward from the direction of movement, toward the operator. In operation, the previously scalded fowl was held in contact with the moving fingers, and was manipulated to bring different parts of the body successively in contact therewith. The specification stated, “Since the angle of the fingers is opposite to -the direction of rotation, the fingers are readily bent and the speed of rotation is such that some of the projections * * * are continuously in engagement with the feathers of the fowl and quickly remove these feathers without tearing or otherwise injuring the skin. * * * By providing fingers that are hollow at their outer ends, when these fingers are bent, they flatten out somewhat and present a greater area on each projection for contact with the feathers.” It was further pointed out that in the case of feathers difficult to remove, the pressure of the fowl against the rotating fingers could be increased. It was claimed for this machine that its picking speed was 150 to 350 chickens per hour. It was certainly useful and met with speedy imitation. The drum and fingers could be used in an automatic process, although when so used, the evidence indicated that there was no attempt to clean pick; and were usually used in conjunction with the wax dip to which we have referred. Machines manufactured under the patent were notably successful commercially. Hunt entered into a license agreement with Mueller in 1939. Sales that year were 60; the next year 580; in 1941, 854; in 1942 (with priority restrictions on steel) 551; in 1943, 871; and to April 30, 1944, 265. Gross sales for those years" }, { "docid": "6314512", "title": "", "text": "Company, 68 F.Supp. 485, in which case the District ’Court for the Southern District of Ohio found that the plaintiffs were entitled to a bond or a preliminary injunction against the manufacture by defendants of machines illustrated in plaintiffs’ Exhibit 109 herein. 7. The device shown and described in the Hunt patent in suit consists of an apparatus used in the poultry business for picking feathers from fowl in the course of preparing poultry for the market. The machine comprises a structure consisting of a drum mounted in a frame, and revolved by an electric motor, having flexible fingers arranged completely around the drum, and extending outwardly from the periphery thereof. In operating the device, a chicken (or other fowl) which has previously been scaled is pressed against the revolving drum, and the fingers remove the feathers by a rubbing or scrubbing action. The operator manipulates the chicken by turning it and twisting it so that all parts of the body contact the fingers of the revolving drum. 8. The problem which existed in the art prior to the invention covered by the Hunt patent in suit was in general to pluck poultry (fowl) mechanically and specifically to remove feathers from poultry rapidly and effectively without injury to the poultry and in such a manner that quantity production could be obtained. This problem in particular had existed and had been recognized in the art at least since 1916 within the knowledge of witnesses testifying in this case and to general knowledge always. At least since 1916 throughout the poultry industry there had been a need and a demand for a machine for plucking poultry, which would increase production and decrease the labor required, without injuring the poultry. There had always been a demand and a need for a machine which would pluck poultry. 9. From time immemorial poultry has been plucked by hand. Hand plucking had many disadvantages which had long been recognized in the art. Hand plucking was slow and laborious, very unsanitary, expensive, and involved considerable loss from scuffing, barking, or breaking the skin of the poultry. 10." }, { "docid": "16996131", "title": "", "text": "No. 2,300,157, issued to George R. Hunt on October 27, 1942, pursuant to an application filed November 16, 1939. The patent is for a “Feather-picking apparatus for fowls and the like.” 2. Plaintiff, George R. Hunt, is the owner of the legal title of the patent-in-suit, and plaintiff, Conrad B. Mueller is the owner of the equitable title thereof by virtue of an exclusive license agreement dated February 14, 1940. 3. Defendant, Harold C. Campbell, residing at Ashley, Ohio, has been doing business at Delaware, Ohio, since October 27, 1942, manufacturing and selling the accused poultry picking machines, illustrated in 'Campbell patent No. 2,302,525. Defendant, H. D. Thomas, since October 27, 1942, has been doing business as The Thomas Company at Delaware, Ohio, selling the accused machine manufactured by defendant, Harold C. Campbell. Defendant, William E. Ginovan, is doing business as Ginovan Poultry Market, at Xenia, Ohio, and since September, 1943, has been using one of the accused machines manufactured by defendant, Harold C. Campbell. 4. The patent-in-suit contains 19 Claims. Of these only Claims 2, 3, 7, 10, 12, 14, 16, 17 and 19 are here in issue. These claims are divided as follows: Claims 2, 3, 7, 10, and 17 are Machine Claims; Claims 12, 14 and 19 are Finger Claims, and Claim 16 is a Method 'Claim. 5. The device shown and described in the Hunt patent-in-suit consists of an apparatus used in the poultry business for picking feathers from fowl in the course of preparing poultry for the market. The machine comprises a structure consisting of a drum mounted in a frame, and revolved by an electric motor, having flexible fingers arranged completely around the drum and extending outwardly from the periphery thereof. In operating the device, a chicken (or other fowl) which has previously been scalded is pressed against the revolving drum, and the fingers remove the feathers by a rubbing or scrubbing action. The operator manipulates the chicken by turning it and twisting it so that all parts of the body contact the fingers of the revolving drum. 6. The problem which existed in" } ]

[ { "docid": "22777058", "title": "", "text": "Mr. Justice GBIER delivered the opinion of the court. The steamer Flushing being aground on Hampton Bar, out of the channel or course of vessels navigating the bay or harbor, and incapable of motion, cannot be justly charged with any participation in causing the collision. The collision being caused by the Louisiana drifting from her moorings, she must be liable for the damages consequent thereon, unless she can show affirmatively that the drifting was the result of inevitable accident, or a vis major, which human skill and precaution, and a proper display of nautical skill could not have prevented. Now the facts show that the Louisiana has entirely failed to establish her defence. 1. The drifting of this vessel was not caused by any sudden hurricane which nautical experience could not anticipate. None of the other numerous vessels, at that time in the harbor, were driven from their moorings. The wind which arose was only of such a character that its effects might have been anticipated, and, by proper precaution, prevented; — “a half gale,” “ a stiff breeze,” “ a little more than ordinary.” The fact that the steamer was ordered by the government officers to take in coal at the old wharf, which had a narrow front when compared with the great length of the vessel, could not relieve the officers of the boat from the duty of securing her in such a manner as to prevent her drifting when the change of the tide and winds changed the direction of the forces acting upon the vessel. And the fact that under these circumstances she did drift, is conclusive evidence that she was not sufficiently and properly secured. It requires no assumption or affectation of any very great nautical skill in this court to point out the defects of the management of this vessel by the mate, who was left in charge of her. If the tide and wind could have been reasonably expected to remain as it was when, according to the mate’s idea, the vessel was lying so “ very nice to the wharf” we should" } ]

[ { "docid": "12979648", "title": "", "text": "near the Rio Maracana. Evidence accepted by the district judge indicates that The Cabins arrived at buoy 2-CB-off Cape Henry and reduced speed in order to take on a Maryland pilot at buoy 2-A to guide her to Baltimore. Her-speed was gradually reduced from the time of her arrival at buoy 2-CB until' the time of the collision. As she headed' for buoy 2-A her navigators saw the running lights of the Rio Maracana,. then located about a half mile southwest of buoy 2-A and headed in a southerly direction. The Cabins then changed her course three or four degrees to the right so as to put the Rio Marcana on the port bow and pass between her and the buoy. The Cabins proceeded at a reduced speed' and as she drew within two ships’ length of the Rio Maracana she noticed her swinging to the left and apparently directing her course across the path The-Cabins was taking. Thereupon the engines of The Cabins were put in reverse in an effort to avoid a collision, but when it was seen to be inevitable the engines of the The Cabins were put full speed' ahead with left rudder so as to lessen the-impact of the blow, with the result that the bow of the Rio Maracana struck f;he port side of The Cabins at right angle and scraped along the length of the vessel. It is urged, on behalf of the Rio Maracana, that more effective efforts should have been taken to avoid the collision by retarding the engines or changing the course of The Cabins before her navigators realized that otherwise a collision was imminent. But we think the reasons given by the district judge in discussing the facts in his opinion jus tify his conclusion that negligence on the part of The Cabins in the emergency caused by the maneuvers of the Rio Maracana was not proved. The case is a typical one for the application of the established rule that when the fault on the part of one vessel in a collision, sufficient to account for the disaster," }, { "docid": "19074677", "title": "", "text": "In collision cases the accident is said to be inevitable when it is not possible to prevent it«by the exercise of due care, caution, and nautical skill. The term is usually applied to collisions caused by a vis major or by the intervention of other vessels or floating ice, or a severe snowstorm or the disablement of the steering gear. In The Mabey and Cooper, 14 Wall. 204, 215 (20 L. Ed. 881) the court said: “Inevitable accident, as applied to a case of this description, must be understood to mean a collision which. occurs wben both, parties have endeavored, by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident, and where the proofs show that it' occurred in spite of everything that nautical skill, care, and precaution could do to keep the vessels from coming together.” The Fullerton being without fault, -the question arises whether the officers in charge of the Transit endeavored by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the collision. The fact of the collision cast upon the appellee the burden of1 proof of showing that the Transit was without fault, for the officers of the Transit were well aware of the position of the Fullerton, having passed her many times in the three months during which she had been at anchor. Once or twice they had passed within 100 feet of her. At other times- their course had run as far as a mile north of her. In The Virginia Ehrman, 97 U. S. 309, 315 (24 L. Ed. 890) the court said: “Vessels in motion are required to keep out of tbe way of a vessel at anchor, if the latter is without fault, unless it appears that the collision was the result of inevitable accident; the rule being that the vessel in motion must exonerate herself from blame, by showing that it was not in her power to prevent the collision by adopting any practicable precaution.”" }, { "docid": "10012704", "title": "", "text": "U. S. 125, 133, 22 L. Ed. 148. A rule applicable to such a situation was to proceed at such a rate of speed as would enable her after discovering a vessel through the fog to have stopped and reversed her engines in time to prevent a collision. The Great Eastern, Brown. & L. 287, 291; The Nacoochee, 137 U. S. 330, 339, 11 Sup. Ct. 122, 34 L. Ed. 687; The Umbria, 166 U. S. 404, 417, 17 Sup. Ct. 610, 41 L. Ed. 1053; The Belgian King, 125 Fed. 869, 876, 60 C. C. A. 451. This she did not do; and she was therefore clearly at fault. Was the dredge also in fault? A dredge lawfully fixed in a channel for improving it is to be considered as a vessel at anchor, and is under obligation to use -the same precautions to guard against collisions that a vessel at anchor is in respect to the exhibition of lights, maintaining a watch, and measures calculated to make its situation known. Spencer on Marine Collisions, §'’118. American Dredging Co. v. The Bedowin, 1 Fed. Cas. No. 299. The Virginia Ehrman and The Agnese, 97 U. S. 309, 24 L. Ed. 890. The Portland was lawfully engaged in dredging the channel at the point of collision. She- was therefore to be considered as a vessel at anchor. “A vessel when at anchor shall, at intervals of not more than one minute, ring the bell rapidly for five seconds.” Article 15, cl. “d,” Act June 7, 1897 (30 Stat. 96, 99). The dredge had a bell, but whether it was rung rapidly' for about five seconds at intervals of not more than one minute during the fog immediately' preceding the collision was a question of fact upon which the evidence was conflicting. The testimony upon this question was furnished by 16 witnesses — 4 by deposition, and 12 by testimony in open court. The-court reviewed this testimony, and said: “I tliink there can be no question that the bell on the dredge was rung at proper intervals during the approach of" }, { "docid": "2414692", "title": "", "text": "PARDEE, Circuit Judge (after stating the facts as above). In the case of The Degama, 150 Fed. 323, 80 C. C. A. 93, this court held: “When a vessel in motion runs into a vessel moored, the rule is that the moving vessel must exonerate herself from blame. The Virginia Ehrman and The Agnese, 97 U. S. 309-315, 24 L. Ed. 890, and cases there cited. In such a ease there is a presumption of fault on the part of the moving ship, and the burden of proof is on her to exonerate herself from liability. The Oregon, 158 U. S. 186, 15 Sup. Ct. 804, 39 L. Ed. 943; The Granite State, 3 Wall. 310, 314, 18 L. Ed. 179; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 554, 11 Sup. Ct. 653, 35 L. Ed. 270; Pennsylvania R. Co. v. Ropner (C. C.) 105 Fed. 397; The Bridgeport, 14 Wall. 116, 20 L. Ed. 787.” The claimants in this case show no proof exonerating the moving tug and barge from liability. The only evidence that looks in that direction is that showing that the eyebolt in the drum of the steering wheel of the tug, fastening or holding the end of the tiller' rope, and which eyebolt was free from flaw or fault, broke, when„ to avoid the collision, the wheel was sharply turned in an effort to put the helm hard astarboard, and thus the steering gear of the tug was disabled—all of which is claimed to be an inevitable accident. The mate of the tug, who was at the wheel at the time, testified as follows: “Q. Did you do anything in order to keep away from the steamer? A. I altered my course a little towards the west in order to swing the barge away from the ship, and in trying to alter the bow of the barge my helm gave way. “Q. How many points did you turn on your compass? A. I should judge about eight points. “Q. You turned about, eight points around towards the steamer? A. Yes, sir." }, { "docid": "8593242", "title": "", "text": "* Two anchor lights were properly set, indicating, under rule 2, a vessel more than 150 feet long at anchor, and a fog bell was regularly sounded as required by rule 15, until the collision. There was a strong southeast wind blowing, so that the Hesperides lay heading generally towards the southeást. While so lying at anchor the fog whistle of a steamer approaching from the south was heard, and about 11:36 p. m. the steamer Persian under way came into collision with the Hesperides, hitting her near the stem with the Persian’s bow and causing damage to both vessels. “The Persian that night was bound from Philadelphia to Boston. Her witnesses state that she encountered thick fog before she reached the Pollock Rip Light Vessel. She passed near the light vessel and Bell Buoy No. 1. Her captain testifies that shortly after passing the bell buoy she was put bn a course N. E. by N. % N. This course would take her about half a mile east of the Pollock Rip Shoals Lightship. She was proceeding carefully, stopping several times and then proceeding ahead slowly. She met and passed the steamer Whitney to the west of and before reaching the Whistling Buoy No. 2. After passing the Whitney, and while the whistling buoy was distinctly heard to the eastward of the starboard side of the Persian, a bell of a vessel was reported by the lookout. The engines were stopped. A white light was then reported on the starboard side of the Persian. The engines were immediately started and her wheel starboarded; the captain testifying that he supposed the light was on a schooner or small vessel and that he would pass the schooner on his starboard side. Immediately a white light was reported on the port bow. Perceiving that the two lights were anchor lights on a large vessel directly in front, the engines were ordered full speed' astern, but almost immediately, perceiving that the Persian still forged ahead, and that a collision was inevitable, the engines were ordered full speed ahead and the wheel put hard" }, { "docid": "19074676", "title": "", "text": "bearing so taken, if extended 1.000 yards, would place the Fullerton more than 1,000 feet south of the north line of the anchorage ground, and if extended a greater distance it would place her still farther away from that line. The Fullerton was 235 feet in length, and she was well equipped with heavy anchors, her port anchor weighing something over 5,000 pounds and her starboard anchor 4,500 pounds, and both anchors were out when gales were blowing. The Transit’s fairway opposite the point wheré the Fullerton was anchored was 4,500 feet wide. At no time had com plaint been made either by the harbor commissioners or by the officers of the Transit that the Fullerton was not anchored in a proper place. Other vessels were anchored within a quarter of a mile of her. She being thus properly anchored with bright riding lights up and her fog bell ringing, no fault can be imputed to her as contributing to the collision. The court below held that the collision was the result of inevitable accident. In collision cases the accident is said to be inevitable when it is not possible to prevent it«by the exercise of due care, caution, and nautical skill. The term is usually applied to collisions caused by a vis major or by the intervention of other vessels or floating ice, or a severe snowstorm or the disablement of the steering gear. In The Mabey and Cooper, 14 Wall. 204, 215 (20 L. Ed. 881) the court said: “Inevitable accident, as applied to a case of this description, must be understood to mean a collision which. occurs wben both, parties have endeavored, by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident, and where the proofs show that it' occurred in spite of everything that nautical skill, care, and precaution could do to keep the vessels from coming together.” The Fullerton being without fault, -the question arises whether the officers in charge of the Transit endeavored by every means in their power," }, { "docid": "23132400", "title": "", "text": "If a vessel anchors at a point in a channel where, notwithstanding sueh anchorage, other vessels, navigated with the care the situation requires, can safely pass, then she has neither violated the statute, nor rendered herself liable under the general rules applicable to navigation, even though to a certain extent she has obstructed the channel.” In; the instant case, the proofs show that the outboard side of scow 37 extended 59 feet into the channel from the northerly bank, leaving 241 feet of open navigable water. The beam of the Orion was 17 feet. The general manager of the canal testified that the purpose of having dolphins at the eastern end of the canal is to provide a mooring place for vessels awaiting orders and otherwise delayed in transit; that vessels tie up two abreast frequently, and sometimes three abreast; that by tying up two abreast it leaves a wider channel than is available in the inner section of the canal where the channel is only 100 feet wide; that the tying of barges abreast is done to conserve space and leave mooring space for other vessels expected to arrive. The proofs further show that the steamer from Boston to New York passed the spot without any trouble two and a half hours before the collision, and that there is a local custom in the canal, having the sanction of the canal authorities, of mooring vessels two abreast at these dolphins. We are of the opinion that the District Court was right in holding “that the scows were properly moored.” 2. It must he found, then, that the Orion collided with a vessel properly moored; that she must be presumed to have been in fault, and to have the duty upon her to exonerate herself from blame by showing that it was not within her power to have prevented the collision by taking reasonable and practicable precautions. The Granite State, 3 Wall. 310, 314,18 L. Ed. 179; The Oregon, 158 U. S. 186, 15 S. Ct. 804, 39 L. Ed. 943; Virginia Ehrman, 97 U. S. 309, 315, 24 L." }, { "docid": "17933432", "title": "", "text": "in holding that the fault of the Hubbard was the sole cause of the collision. The navigating officers of the Hubbard admit that ‘they saw the Pollock and neighboring ships and fully understood their relative positions before the maneuver was commenced which resulted in the collision. There was, as we have said, nothing so unusual in the weather, and nothing so unusual in the current of the'river and the presence of ice in it as to affect the navigating of the Hubbard, and her officers say that she was in all respects in good working condition. Since the testimony shows beyond substantial dispute that the Pollock .was anchored in a proper place, and that the officers of the Hubbard saw her lights and realized what her position was, in the language of the Su preme Court, we are not called upon to inquire wherein the Hub-hard was not managed with proper nautical skill. “Such inquiries are superfluous where the collision was caused by a vessel having the power to move or stop at pleasure in a channel of sufficient breadth, without any superior force compelling her to the place of collision.” “The fact that in these circumstances the steamboat did collide with the barge [anchored Pollock] is conclusive evidence that she was not properly managed, and that she should be condemned to pay the damages caused by the collision.” The Granite State, 3 Wall. 310, 18 L. Ed. 179. To the same effect is The Virginia Ehrman and The Agnese, 97 U. S. 309, 24 L. Ed. 890, where the Supreme Court says: “Vessels in motion are required to keep out of the way of the vessel at anchor, if the latter is without fault, unless it appears that the collision was the result of inevitable accident; the rule being that the vessel in motion must exonerate herself from blame, by showing that it was not in her power to prevent the collision by adopting any practicable precautions.” To precisely the same effect is The Oregon, 158 U. S. 186, 15 Sup. Ct. 804, 39 L. Ed. 943, where, after" }, { "docid": "17218371", "title": "", "text": "true to the point of collision. The Luckenbach’s course from her anchorage off Windmill Point was N. % E- magnetic, until some five minutes before the collision, when she changed her course to N. W. % W. The Indrakuala proceeded down the channel in the regular course for downgoing vessels, and the Luckenbach was on the proper course for ascending vessels, being to the eastward of the channel. Between the Euckenbach’s place of anchorage, off Windmill Point, and the scene of the accident, the Merchants’ & Miners’ Transportation Company’s steamship Essex, also ascending the bay, passed the Luckenbach to the westward of her, that is, on her port side; and the Essex met and passed the Indrakuala above the scene of the collision to the eastward, that is, to the port side of that vessel. The collision occurred at 7:36 of the Indrakuala’s time, and 7:45 of the Euckenbach’s time (there being a difference between the two ships of some 9 minutes in time), and after the passing of the two ships by the Essex as above indicated. The distance below Tangier Buoy, where it happened, is ascertained with reasonable certainty, namely, 3% miles, though just- where the fog set in, and where the Essex and Indrakuala passed each other below Tangier Buoy, as well as where the Indrakuala, on account of the fog, reduced her speed, is in dispute — the Indrakuala’s contention being that when about three-fourths of a mile, or less, of the scene of the collision, at 7:30 she reduced her speed one-half, at 7:33 stopped and reversed full speed astern, and at 7:34 repeated the full speed astern order, and subsequently, after sighting the Euckenbach about two ship’s lengths away, she signaled to stop and hardaported, and that at the time of the collision she was substantially stopped in the water, and had lost steerage way; whereas the Euckenbach contends that the Indrakuala was at least a mile and a quarter away when she should have reduced her speed, and that she was making undue speed before and at the time of the collision, and" }, { "docid": "17933433", "title": "", "text": "a channel of sufficient breadth, without any superior force compelling her to the place of collision.” “The fact that in these circumstances the steamboat did collide with the barge [anchored Pollock] is conclusive evidence that she was not properly managed, and that she should be condemned to pay the damages caused by the collision.” The Granite State, 3 Wall. 310, 18 L. Ed. 179. To the same effect is The Virginia Ehrman and The Agnese, 97 U. S. 309, 24 L. Ed. 890, where the Supreme Court says: “Vessels in motion are required to keep out of the way of the vessel at anchor, if the latter is without fault, unless it appears that the collision was the result of inevitable accident; the rule being that the vessel in motion must exonerate herself from blame, by showing that it was not in her power to prevent the collision by adopting any practicable precautions.” To precisely the same effect is The Oregon, 158 U. S. 186, 15 Sup. Ct. 804, 39 L. Ed. 943, where, after detailing circumstances strikingly similar to those prevailing at the time of the collision complained of in this case, the Supreme Court,'speaking through Justice Brown, says: .“The circumstances above detailed raise a presumption of fault on the part of The Oregon, and the burden of proof is upon her to exonerate herself from liability.” And again (page 197 of 158 U. S., page 809 of 15 Sup. Ct, 39 L. Ed. 943): “Where one vessel, clearly shown to have been guilty of a fault adequate in itself to account for the collision, seeks to impugn the management of the other vessel, there is a presumption in favor of the latter, which can only be rebutted by clear proof, of a contributing fault. This principle is peculiarly applicable to the case of a vessel at anchor, since there is not only a presumption in her favor, by the fact of her being at anchor, but a presumption of fault on the part of the other vessel, which shifts the burden of proof upon the latter.” The collision" }, { "docid": "11668784", "title": "", "text": "not see the raft, and did not know at that time that the raft was there. There was-no evidence that any one on the steamer saw the raft, or knew of its proximity, although it was in evidence that there was a man on the raft, who ■called to the steamer, and warned it of the peril 'the raft was in. The evidence was that the logs which were lost were worth the amount sued for, to wit, $90. Where a vessel properly moored at a dock, at anchor, or not in motion, is damaged by a vessel in motion, the presumption of law is that it was the fault of the one under way; and it is presumptively liable until the contrary is shown, the burden of doing which is upon the vessel under way. The Morrisania, 13 Blatchf. 512, Fed. Cas. No. 9,838; The Tiger Lilly (D. C.) 11 Fed. 745; The Worthington (D. C.) 19 Fed. 836; The Drew (D. C.) 22 Fed. 852; The Rhode Island (D. C.) 24 Fed. 295; The El Dorado (D. C.) 27 Fed. 762; The Ogemaw (D. C.) 32 Fed. 919; The New York (D. C.) 34 Fed. 757. The vessel in motion must exonerate herself from blame by •showing that it was not in her power to prevent the injury by adopting any practicable precautions. The Virginia Ehrman, 97 U. S. 309, 24 L. Ed. 890; The Bridgeport, 14 Wall. 119, 20 L. Ed. 787. It is the duty of steamers passing docks or other mooring places to pass at such a rate of speed that no danger will result from her swell, or to pass at such a distance that no harm will result to a vessel, lawfully there and properly moored, from the suction produced by her passage through the water or from her displacement wave; and she is bound to know the effect of her swell. Spencer on Marine Collisions, § 72. “A steamboat passing in the vicinity of other craft in shallow water is bound to use all reasonable precautions to avoid doing them injury from" }, { "docid": "21481174", "title": "", "text": "course in the fog and navigating outside her channel. The Quirigua was clearly at fault for colliding with an anchored vessel. The Virginia Ehrman, 97 U.S. 309, 24 L.Ed. 890; The Providence, supra. She has not explained why she was moving at all under existing conditions, certainly not in moving at the admitted speed. After passing Buoy 14 and until the point of collision, her visibility was about 250 feet. Under such atmospheric conditions she could and should have sought an anchorage immediately. There were three available localities. Her maximum drift was 23'6\". After passing Buoy 16, she could have gone a safe distance out of the channel and anchored. After passing Buoy 18, there was sufficient water for her east of the line of the channel between Buoy 18 and the Gravesend Anchorage grounds. She might also have anchored at the Gravesend Anchorage. If she could not maintain steerage-way and at the same time keep her speed under control, she must come to anchor. The Umbria, 166 U.S. 404, 17 S.Ct. 610, 41 L.Ed. 1053; The Youngstown, 40 F.2d 420 (C.C.A.2); The Haven, 277 F. 957 (C.C.A.2). Her captain expressly admitted, whatever may be the speed she was making, that she was unable to stop within the distance he could see ahead. This is explanatory of the collision and a violation of the statutory requirement of moderate speed in fog. The Umbria, supra; The Providence, supra; New York Central R. Co. v. City of New York, 19 F.2d 294 (C.C.A.2); The Manch-ioneal, 243 F. 801, 805 (C.C.A.2); The Nacoochee, 137 U.S. 330, 11 S.Ct. 122, 34 L.Ed. 687. These faults are sufficient to hold the Quirigua for her negligent participation in the collision. Both vessels were properly held liable. Decree affirmed." }, { "docid": "9793639", "title": "", "text": "was heard ahead. The Frostburg (D. C.) 25 Fed. 451. She had taken a bearing north northwest, which took her into the anchorage for the purpose of getting her bearings while away from the course of vessels navigating in the channel. In these circumstances, if she had been in the channel, it was her duty, under article 16 of the Pilot Rules (Comp. St. § 7854), to go at a moderate speed, having careful regard for the existing circumstances and conditions. The pilot took a course which brought the steamship where vessels were likely to be lying at anchor intending when the fog horn of the nearby lighthouse was heard to take a course into the channel, and, being in a dense fog, more than ordinary caution was required. What is moderate speed in a channel where moving vessels .may take care'of themselves may not be moderate speed in proceeding through a known anchorage, where the anchored vessel has no protection excepting her bell or horn. The purpose of the pilot was to get off the channel so as to get his bearings. Getting off the channel was a wise precaution for the safety of the Cananova, but was not sufficiently cautious having regard for the safety of anchored vessels. The fact that the testimony of Garcia, the lookout, was not taken when it could have been obtained is significant. The respondent called witnesses to show what efforts had been made to locate Garcia, whose testimony, in view of his position and duty at the time of the accident, was most important. The testimony does not show that any attempt was made immediately after the accident to obtain his testimony. It does appear, however, that he was a member of the crew until it was paid off. It is well settled in admiralty that the absence of an important witness whose testimony could have been procured through reasonable diligence warrants the inference that his testimony would not have been favorable to the party by whom he should have be^n called. The Richmond (D. C.) 275 Fed. 970; The Prudence (D." }, { "docid": "21481173", "title": "", "text": "(C.C.A.2); The Limon, 35 F.2d 730 (C.C.A.1); The Persian, 181 F. 439 (C.C.A.2.). The authorities to which libelant refers are distinguishable. In The City of Norfolk, 266 F. 641, the anchored vessel was lying partly within and partly without the channel, and the Fourth Circuit Court of Appeals said that all the circumstances and conditions, the width of the channel, the flow of the tide, the force of the wind, the probability of meeting other vessels, the size of the ship and distance and course to the nearest anchorages, relieved it from blame. Interlake S. S. Co. v. Great Lakes Transit Corporation, 89 F.2d 694 (C.C.A.2), was a clear weather case where the anchored vessel could be seen in ample time. In a fog, the position of the Southern Cross in the channel was a danger. In The Providence, 67 F.2d 865 (C.C.A.2), the moving vessel had several times safely passed the anchored vessel which was not in the channel of the moving vessel, and the latter was held at fault in getting off her course in the fog and navigating outside her channel. The Quirigua was clearly at fault for colliding with an anchored vessel. The Virginia Ehrman, 97 U.S. 309, 24 L.Ed. 890; The Providence, supra. She has not explained why she was moving at all under existing conditions, certainly not in moving at the admitted speed. After passing Buoy 14 and until the point of collision, her visibility was about 250 feet. Under such atmospheric conditions she could and should have sought an anchorage immediately. There were three available localities. Her maximum drift was 23'6\". After passing Buoy 16, she could have gone a safe distance out of the channel and anchored. After passing Buoy 18, there was sufficient water for her east of the line of the channel between Buoy 18 and the Gravesend Anchorage grounds. She might also have anchored at the Gravesend Anchorage. If she could not maintain steerage-way and at the same time keep her speed under control, she must come to anchor. The Umbria, 166 U.S. 404, 17 S.Ct. 610, 41 L.Ed." }, { "docid": "12979647", "title": "", "text": "provisions of Rule 4(a) of the International Rules for Navigation at Sea, 33 U.S.C.A. § 145b (a), which require that a vessel not under control for lack of power shall, in lieu of the white running lights, exhibit two red lights in a vertical line visible for two miles. It seems that the vessel was near the boundary line but actually inside the national waters. The red lights were nevertheless displayed but changes were made in them by hauling down the kerosene lights originally displayed and substituting electric lights for them and at the same time the white running lights and colored side lights were put on so that no adequate or certain information, of the helpless condition of the ship was given. Consequently when the anchor-was weighed and the ship swung around to the left toward the north the navigators of The Cabins were understandably-confused as to the condition and intentions of the Rio Maracana. The Cabins is nevertheless accused of negligence in failing to take proper precautions to avoid the collision as she-drew near the Rio Maracana. Evidence accepted by the district judge indicates that The Cabins arrived at buoy 2-CB-off Cape Henry and reduced speed in order to take on a Maryland pilot at buoy 2-A to guide her to Baltimore. Her-speed was gradually reduced from the time of her arrival at buoy 2-CB until' the time of the collision. As she headed' for buoy 2-A her navigators saw the running lights of the Rio Maracana,. then located about a half mile southwest of buoy 2-A and headed in a southerly direction. The Cabins then changed her course three or four degrees to the right so as to put the Rio Marcana on the port bow and pass between her and the buoy. The Cabins proceeded at a reduced speed' and as she drew within two ships’ length of the Rio Maracana she noticed her swinging to the left and apparently directing her course across the path The-Cabins was taking. Thereupon the engines of The Cabins were put in reverse in an effort to avoid a collision," }, { "docid": "1910604", "title": "", "text": "than merely suggest the possibility that the tort of another may have intervened. * * * The burden of proving that an intervening act of negligence caused the loss was on the appellant.” See, also, The City of New York, 147 U.S. 72, 85, 13 S.Ct. 211, 37 L.Ed. 84; The Bartle Daly, 2 Cir., 45 F.2d 605; The Mexico, 2 Cir., 84 F. 504. We recognize the principle that a vessel failing to show the proper lights will not for that reason be held solely at fault when she was in fact seen by the other vessel in time for the latter to have avoided the collision and the latter vessel negligently failed to take proper avoiding action. Chamberlain v. Ward, 21 How. 548, 62 U.S. 548, 16 L.Ed. 211. But the appellant here has not proved facts which render that principle applicable. He has not borne the heavy burden of showing that the Green-well’s failure to carry proper lights and his own failure to navigate his small, unlighted vessel so as to avoid the Virginia were not the sole causes of the collision. The faults charged by the appellant against the Virginia are these: (1) that she was travelling at an excessive rate of speed; (2) that she had an incompetent lookout; and (3) that she failed to take proper avoiding action after sighting the Greenwell. The Virginia was travelling at her regularly-scheduled speed of 14 knots. There is no statutory rule governing the ■speed of vessels in Hampton Roads or the James River, and the propriety of the Virginia’s speed must be determined on the basis of such factors as the state of the weather and visibility, traffic conditions at the time and the maneuverability of the. vessel. We have already described the weather conditions. While the absence of any moonlight made it difficult to observe unlighted objects, visibility was such- that lights could be seen at a normal distance. As the Virginia cleared the buoys and turned up the James River, she saw no lights ahead and was entirely warranted in assuming that the waters ahead" }, { "docid": "8013378", "title": "", "text": "the vessel must have been unseaworthy at the beginning of the voyage which had so shortly theretofore begun. The circumstance is certainly undoubtedly entitled to careful consideration as one of the possible explanations of the accident. On the other hand, it is suggested that the sheer of the Nordhvalen was caused by the negligence of her pilot in carrying the heavily laden ship so near to the bank of a narrow channel that she became unmanageable. Similar accidents were discussed in The Howard Reeder, 207 F. 929, 125 C. C. A. 377; The Hamilton (D. C.) 212 F. 1016; The Monroe C. Smith (D. C.) 201 F. 569; Nicholas Transit Co. v. Pittsburgh S. S. Co., 209 F. 348, 126 C. C. A. 274, and there are circumstances in the ease at bar which render it not improbable that such was the cause of the accident in this case. The ship was proceeding at 6 miles per hour — her best speed when heavily loaded. She was sailing close to the bank, according to the testimony of her own pilot, being not more than 40 to 60 feet therefrom. It is not perfectly clear why the first order to port the helm was given, unless it was that.the pilot noticed some movement to port. The ship was already close io her own starboard side of the channel. According to the phot’s testimony, the-light on the buoy midway on this side of the channel was out. In the nighttime the vessel may very easily have been even nearer to the bank than he realized, so that she was thrown sharply to port from no apparent cause. This seems the more probable in view of the many changes in the course which had necessarily taken place in the progress of the vessel from her pier at Curtis Bay to the point of collision. Only a few minutes before the collision she had answered her port helm by rounding the turning buoy at the junction of the two channels. A very short time before the collision, when the vessel would not answer the" }, { "docid": "8593243", "title": "", "text": "She was proceeding carefully, stopping several times and then proceeding ahead slowly. She met and passed the steamer Whitney to the west of and before reaching the Whistling Buoy No. 2. After passing the Whitney, and while the whistling buoy was distinctly heard to the eastward of the starboard side of the Persian, a bell of a vessel was reported by the lookout. The engines were stopped. A white light was then reported on the starboard side of the Persian. The engines were immediately started and her wheel starboarded; the captain testifying that he supposed the light was on a schooner or small vessel and that he would pass the schooner on his starboard side. Immediately a white light was reported on the port bow. Perceiving that the two lights were anchor lights on a large vessel directly in front, the engines were ordered full speed' astern, but almost immediately, perceiving that the Persian still forged ahead, and that a collision was inevitable, the engines were ordered full speed ahead and the wheel put hard aport This swung the Persian around so that with her port bow she struck the Hesperides a glancing blow near the stem.” The district judge held the Persian in fault because after the'lookout reported the sound of the Hesperides’ bell ahead she was not navigated vvith sufficient caution, in that her captain immediately assumed that the first light he saw was an anchor light on a schooner or small ves7 sel and ordered the engines ahead to pass the supposed schooner on his starboard hand. The southeast wind swung the Hesperides towards the northwest, so that the stern anchor light was further away than the bow light. The district judge found that: “For the captain to have assumed, on seeing one anchor light, that the vessel was a small one and to have instantly started ahead at increased speed under a starboard helm, only changing the course enough to pass a small vessel, was, in my opinion, not navigating with caution until danger of collision was over.” He did not find the Persian guilty of" }, { "docid": "19074678", "title": "", "text": "with due care and caution, and a proper display of nautical skill, to prevent the collision. The fact of the collision cast upon the appellee the burden of1 proof of showing that the Transit was without fault, for the officers of the Transit were well aware of the position of the Fullerton, having passed her many times in the three months during which she had been at anchor. Once or twice they had passed within 100 feet of her. At other times- their course had run as far as a mile north of her. In The Virginia Ehrman, 97 U. S. 309, 315 (24 L. Ed. 890) the court said: “Vessels in motion are required to keep out of tbe way of a vessel at anchor, if the latter is without fault, unless it appears that the collision was the result of inevitable accident; the rule being that the vessel in motion must exonerate herself from blame, by showing that it was not in her power to prevent the collision by adopting any practicable precaution.” See, also, The Oregon, 158 U. S. 186, 15 Sup. Ct. 804, 39 L. Ed. 943. We think the Transit was at fault in not coming to a stop and ascertaining the position of1 the bell which was heard shortly before the collision, and that the bell which was heard was the Fullerton’s fog bell, notwithstanding that all the Transit’s ^witnesses testified that the bell which they heard was the bell established by the appellee on the Mission Bay slip to guide the Transit in locating the slip in foggy weather, and that they did not hear the Fullerton’s bell before the collision. The master of the Transit testified that a bell was heard 22 or 23 minutes after he had left the Oakland Mole. The fastest trip of the Transit across the bay that night, which must have.been at full speed, for it was before the fog set in, was made in 38 minutes, and the average trip that night was 43% minutes, so that the bell m-ust have been heard while the Transit" }, { "docid": "11668785", "title": "", "text": "The El Dorado (D. C.) 27 Fed. 762; The Ogemaw (D. C.) 32 Fed. 919; The New York (D. C.) 34 Fed. 757. The vessel in motion must exonerate herself from blame by •showing that it was not in her power to prevent the injury by adopting any practicable precautions. The Virginia Ehrman, 97 U. S. 309, 24 L. Ed. 890; The Bridgeport, 14 Wall. 119, 20 L. Ed. 787. It is the duty of steamers passing docks or other mooring places to pass at such a rate of speed that no danger will result from her swell, or to pass at such a distance that no harm will result to a vessel, lawfully there and properly moored, from the suction produced by her passage through the water or from her displacement wave; and she is bound to know the effect of her swell. Spencer on Marine Collisions, § 72. “A steamboat passing in the vicinity of other craft in shallow water is bound to use all reasonable precautions to avoid doing them injury from the known suction she causes.” The Drew (D. C.) 22 Fed. 852. In that case Judge Brown says: “The liability to do damage to boats lying in shallow waters through the swell and suction of her passage is a familiar fact.” “The undoubted right of the steamer to the navigation of the river is subject to the restriction that it must be exercised in a reasonable and careful manner, and ■do no injury to others that care and prudence may avoid.” The Morrisania, supra. Upon the evidence I cannot find that the injury to the raft was attributable to any neglect on its part or of its owner. It was in a lawful and proper place, and no reasonable caution in respect to its construction or mooring had been omitted. It cannot be disputed that the immediate cause of the injury was the swell and suction created by the steamer as she attempted at full speed to go ahead over the obstruction so near the bank and the raft. Whether or not she saw the" } ]

[ { "docid": "22265630", "title": "", "text": "Plaintiffs have exchanged their right to obtain adjudicatory relief which would fully eliminate the effects of discrimination in the past as well as in the future. Id.; Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). A consent decree, therefore, should be strictly construed to preserve the bargained for position of the parties. See ITT Continental Baking Co., 420 U.S. at 238, 95 S.Ct. at 935; Stotts, 679 F.2d at 557. A court has no occasion to resolve the merits of the disputed issues or the factual underpinnings of the various legal theories advanced by the parties. See Stotts, 679 F.2d at 552; City of Miami, 664 F.2d at 440; Airline Stewards and Stewardesses Assoc. v. American Airlines, 573 F.2d 960, 963-64 (6th Cir.) (per curiam), cert. denied, 439 U.S. 876, 99 S.Ct. 214, 58 L.Ed.2d 190 (1978); Carson v. American Brands, 450 U.S. 79, 88 n. 14, 101 S.Ct. 993, 998 n. 14, 67 L.Ed.2d 59 (1981). A consent decree, however, is also a final judicial order. See Carson, 450 U.S. at 84, 101 S.Ct. at 996; United States v. Kellum, 523 F.2d 1284, 1287 (5th Cir.1975); Stotts, 679 F.2d at 557. Judicial approval of a settlement agreement places the power and prestige of the court behind the compromise struck by the parties. See Stotts, 679 F.2d at 557; City of Miami, 664 F.2d at 441. Judicial approval, therefore, may not be obtained for an agreement which is illegal, a product of collusion, or contrary to the public interest. See City of Miami, 664 F.2d at 441. Once approved, the prospective provisions of the consent decree operate as an injunction. See Plummer v. Chemical Bank, 668 F.2d 654, 659 (2d Cir. 1982); Carson, 450 U.S. at 84 n. 9, 101 S.Ct. at 996 n. 9; City of Miami, 664 F.2d at 441. The injunctive quality of consent decrees compels the court to: 1) retain jurisdiction over the decree during the term of its existence, Stotts, 679 F.2d at 562-63; 2) protect the integrity of the decree with its contempt powers, Id.;" } ]

[ { "docid": "11574778", "title": "", "text": "not adequate in the civil rights realm.” J.A. 35. Furthermore, the district court found that by extending the consent decree, the goals of the decree “will be fulfilled in a short period of time and this action will then 'come to an end”; however, if the decree was not modified, “it is evident that minority participation will regress and ... the goals of the [consent decree] will not have been achieved, but will be frustrated.” J.A. 35-36. Consequently, the district court approved the Stipulation and Order, thereby permitting the provisions of the 1983 decree to remain in effect for the duration of the eligibility lists from the 1988 promotional examination. Finally, in its. order approving the modification to the consent decree, the district court stated that when the eligibility lists from the 1988 promotional examination expire, “[n]o further extensions of the goals of the [consent decree] will be permitted ... even if said goals have not been met, provided that the City acts in good faith ... and complies with the • terms of [this] Order and with applicable law.” J.A. 38'. This timely appeal by the Union followed. II. A. This court reviews a district court’s modification of a consent decree under an abuse of discretion standard. Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1147-48 (6th Cir.1992), cert. denied, — U.S.-, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993). “ ‘A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.’ ” Id. at 1148 (quoting Black Law Enforcement Officers Ass’n v. City of Akron, 824 F.2d 475, 479 (6th Cir.1987)). Further, “[m]odification of a consent decree requires ‘a complete hearing and findings of fact.’ ” Akers v. Ohio Dep’t of Liquor Control, 902 F.2d 477, 479 (6th Cir.1990) (per curiam) (quoting Brown v. Neeb, 644 F.2d 551, 560 (6th Cir.1981)). “A consent decree is a strange hybrid in the law.” Brown, 644 F.2d at 557. It is both “a voluntary settlement agreement which could be fully effective without judicial" }, { "docid": "148041", "title": "", "text": "Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1148 (6th Cir.1992) (observing that a con sent decree is best described as a “strange hybrid in the law,” id. (quoting Brown v. Neeb, 644 F.2d 551, 557 (6th Cir.1981)) (internal quotation marks omitted), that “is at once a voluntary settlement agreement which could be fully effective without judicial intervention and a final judicial order ... placing] the power and prestige of the court behind the compromise struck by the parties,” id. (alteration in original) (quoting Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983)) (internal quotation marks omitted)); cf, e.g., Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 519, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986) (“[Cjonsent decrees bear some of the earmarks of judgments entered after litigation. At the same time, because their terms are arrived at through mutual agreement of the parties, consent decrees also closely resemble contracts.”). Unlike an opinion, which is aided by an adversarial system that grants a judge the occasion formally to review the merits of the claims asserted, “the means employed in reaching [a consent judgment] are still the same as those used to enter into private settlement or any private commercial contract,” Ku, supra, at 427, in that “the parties can be treated as orchestrating the decision-making process by privately negotiating the terms of the settlement and then presenting them to the court as a fait accompli which any court would be hard-pressed to reject,” id. at 428. The ways in which parties maneuver to transform a settlement agreement into a judicially approved consent judgment, then, cannot be fairly characterized as direct “petitioning” — at least not as that word is commonly understood in the context of the political process. Cf. Sosa v. DIRECTV, Inc., 437 F.3d 923, 933 (9th Cir.2006) (observing that “only litigation activities which constitute ‘communications] to the court’ may be fairly described as ‘petitions’ ” and that “[s]uch communications include [a] complaint, an answer, a counterclaim and other assorted documents and pleadings, in which plaintiffs or defendants make representations" }, { "docid": "16102850", "title": "", "text": "and his fellow class members, but from the defendants directly. Moore phrases it as merely forcing the defendants to reallocate some of the money from the implementation of the consent decree to his incentive award, but that misses the point. “A consent decree, although in effect a final judgment, is a contract founded on the agreement of the parties.” Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.), cert. denied, 506 U.S. 827, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992). “ ‘It should [therefore] be construed to preserve the position for which the parties bargained.’” Gonzales v. Galvin, 151 F.3d 526, 531 (6th Cir.1998) (citation omitted). Forcing the defendants to pay the incentive award is certainly an additional expenditure, and it is therefore impermissible. See Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1153 (6th Cir.1992) (holding that an increase of one party’s “financial obligations under the consent decree beyond [the agreed-upon amount] constitutes an abuse of discretion and cannot stand”), cert. denied, 509 U.S. 905, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993). D. Costs Moore’s second claim is that he is entitled to costs. He includes as his “costs” his claims for lost wages, copying costs, word processors and repairs, supplies, storage lockers, and postage in the total amount of $30,955.04. The district court quickly resolved this claim, holding that no statute or case law allows Moore to recover these expenses without explicit authorization in the consent decree. This decision is correct, but a little explanation is necessary. Prevailing parties are usually entitled to costs. See Fed. R.CÍV.P. 54(d) (noting that “costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs”). Although Rule 54(d) allows a party to be reimbursed for its “costs,” this term is given a far narrower interpretation than its vernacular meaning might suggest. See 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2666, at 202 (3d ed.1998) (noting that “[although ‘costs’ has an everyday meaning synonymous with ‘expenses,’ the concept of taxable costs" }, { "docid": "17028366", "title": "", "text": "that .a consent decree has “attributes of both a contract and of a judicial act” and is “essentially a settlement agreement subject to continued judicial policing.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983); accord Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1017 (6th Cir.1994). In fact, “ ‘[o]nce approved, the prospective provisions of a consent decree operate as an injunction.’ ” Vanguards, 23 F.3d at 1018 (quoting Williams, 720 F.2d at 920); see also Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). This court has recognized that this injunctive quality requires courts to: “1) retain jurisdiction over the decree during the term of its existence; 2) protect the integrity of the decree with its contempt powers; and 3) modify the decree should ‘changed circumstances’ subvert its intended purpose.” Williams, 720 F.2d at 920 (citations omitted); see also United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932) (“If the reservation [of power to modify] had been omitted, power there still would be by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.”). Courts, therefore, have a duty to enforce, interpret, modify, and terminate their consent decrees as required by circumstance. This court has further found that [although interpretation of a consent decree is to follow the general rules prescribed in contract law, the courts, in effectuating the purposes or accomplishing the goals of a decree, are not bound under all circumstances by the terms contained within the four comers of the parties’ agreement. Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1148 (6th Cir.1992) (emphasis added), cert. denied, Lorain Bd. of Educ. v. Ohio Dep’t of Educ., 509 U.S. 905, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993). At the very least, United States v. Knote, 29 F.3d 1297, 1302 (8th Cir.1994) (quoting United States v. City of Fort Smith, 760 F.2d 231, 233 (8th Cir.1985) (quoting" }, { "docid": "17028367", "title": "", "text": "been omitted, power there still would be by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.”). Courts, therefore, have a duty to enforce, interpret, modify, and terminate their consent decrees as required by circumstance. This court has further found that [although interpretation of a consent decree is to follow the general rules prescribed in contract law, the courts, in effectuating the purposes or accomplishing the goals of a decree, are not bound under all circumstances by the terms contained within the four comers of the parties’ agreement. Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1148 (6th Cir.1992) (emphasis added), cert. denied, Lorain Bd. of Educ. v. Ohio Dep’t of Educ., 509 U.S. 905, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993). At the very least, United States v. Knote, 29 F.3d 1297, 1302 (8th Cir.1994) (quoting United States v. City of Fort Smith, 760 F.2d 231, 233 (8th Cir.1985) (quoting Swift, 286 U.S. at 114-15, 52 S.Ct. at 462-63 (1932))); accord Lorain, 979 F.2d at 1148. Whether the situation presented here rises to the level where judicial modification is appropriate is a factual issue for the district court to decide in the first instance. even if the structure, language, and context of the decree d[o] not combine to render the district court’s interpretation of the- text permissible, the district court “has [the] inherent equitable power to modify a consent decree if satisfied that the decree ‘has been turned through changing circumstances into an instrument of wrong.’ ” III. CONCLUSION Without reaching the merits of the underlying cause of action or giving any opinions as to whether WMO has presented new factual considerations or events which have rendered the strict enforcement of a consent decree so inequitable that a modification would be justified, this court concludes that the district court does possess the subject matter jurisdiction to address such an issue. Case law clearly suggests that a district court is not required to remain blind to" }, { "docid": "2321167", "title": "", "text": "ordered to pay attorneys’ fees incurred by the Board and CHIP in seeking an increase in state funding. The State of Ohio has appealed and the Lorain Board of Education has cross-appealed. II. The Lorain school desegregation consent decree is injunctive in nature, and appellate jurisdiction over the district court’s modification of the decree therefore attaches under 28 U.S.C. § 1292(a)(1). See Bradley v. Milliken, 772 F.2d 266, 270-71 (6th Cir.1985). We review a district court’s modification of a consent decree under an abuse of discretion standard. United States v. Michigan, 940 F.2d 143, 159 (6th Cir.1991). “ ‘A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.’ ” Black Law Enforcement Officers Ass’n v. City of Akron, 824 F.2d 475, 479 (6th Cir.1987) (quoting Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d 1354, 1356 (6th Cir.), cert. dismissed, 469 U.S. 1200, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985)). III. The district court addressed much of its attention, as the parties to this appeal did, to the issue of the proper standards to be applied in deciding Lorain’s request for a modification of the consent decree to increase the State’s financial liability. The State of Ohio argues that a strict standard is to be applied, while Lorain and CHIP contend that the district court correctly applied a relaxed modification standard. We shall address this issue as part of a general discussion of the nature and treatment of consent decrees, and the role of the courts in interpreting, enforcing, and modifying their terms. The consent decree is “a strange hybrid in the law.” Brown v. Neeb, 644 F.2d 551, 557 (6th Cir.1981). It is at once “a voluntary settlement agreement which could be fully effective without judicial intervention” and “a final judicial order ... placing] the power and prestige of the court behind the compromise struck by the parties.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983). Thus, a consent decree is aptly described as “a settlement agreement subject" }, { "docid": "11574779", "title": "", "text": "Order and with applicable law.” J.A. 38'. This timely appeal by the Union followed. II. A. This court reviews a district court’s modification of a consent decree under an abuse of discretion standard. Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1147-48 (6th Cir.1992), cert. denied, — U.S.-, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993). “ ‘A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.’ ” Id. at 1148 (quoting Black Law Enforcement Officers Ass’n v. City of Akron, 824 F.2d 475, 479 (6th Cir.1987)). Further, “[m]odification of a consent decree requires ‘a complete hearing and findings of fact.’ ” Akers v. Ohio Dep’t of Liquor Control, 902 F.2d 477, 479 (6th Cir.1990) (per curiam) (quoting Brown v. Neeb, 644 F.2d 551, 560 (6th Cir.1981)). “A consent decree is a strange hybrid in the law.” Brown, 644 F.2d at 557. It is both “a voluntary settlement agreement which could be fully effective without judicial intervention” and “a final judicial order ... placing] the power and prestige of the court behind the compromise struck by the parties.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983). Hence, a consent decree is a “settlement agreement subject to continued judicial policing.” Id. Accordingly, the “‘scope of a consent decree must be discerned within its four comers, and not by reference to what might satisfy the purposes of one of the parties to it’” or by what “ ‘might have been written had the plaintiff established his factual claims and legal theories in litigation.’ ” Firefighters Local Union No. 178b v. Stotts, 467 U.S. 561, 574, 104 S.Ct. 2576, 2585, 81 L.Ed.2d 483 (1984) (quot- mg United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971)). However, a consent decree should be construed to preserve the position for which the parties bargained. Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.) (citing Williams, 720 F.2d at 920), cert. denied, — U.S. -, 113" }, { "docid": "11574781", "title": "", "text": "S.Ct. 86, 121 L.Ed.2d 49 (1992). Nevertheless, judicial approval of a consent decree places the power and prestige of the court behind the agreement reached by the parties. Williams, 720 F.2d at 920. “Once approved, the prospective provisions of the consent decree operate as an injunction.” Id. (citing Plumer v. Chemical Bank, 668 F.2d 654, 659 (2d Cir.1982)). The injunctive quality of a consent decree compels the approving court to: (1) retain jurisdiction over the decree during the term of its existence, (2) protect the integrity of the decree with its contempt powers, and (3) modify the decree if “changed circumstances” subvert its intended purpose. Id. Further, even if the consent decree does not expressly grant the district court jurisdiction to modify the decree, it is well-settled that “ ‘courts retain the inherent power to enforce agreements entered into in settlement of litigation pending before them.’” Sarabia v. Toledo Police Patrolman’s Ass’n, 601 F.2d 914, 917 (6th Cir.1979) (quoting Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1371 (6th Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 165, 50 L.Ed.2d 140 (1976)). In Heath v. DeCourcy, 888 F.2d 1105 (6th Cir.1989), this court set forth the standard for modification of consent decrees arrived at by mutual agreement of the parties. We stated that [t]o modify such consent decrees, the court need only identify a defect or deficiency in its original decree which impedes achieving its goal, either because experience has proven it less effective, disadvantageous, or because circumstances and conditions have changed which warrant fine-tuning the decree. Id. at 1110. The modification must further the purpose of the consent decree, without upsetting the basic agreement between the parties. Id. .However, in Rufo v. Inmates of Suffolk County Jail, — U.S. -, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), the Supreme Court adopted a slightly more restrictive but flexible standard to be applied by the courts in rulings on motions to modify consent decrees under Federal Rule of Civil Procedure 60(b). Under Rufo, “a party seeking modification of a consent decree bears the burden of establishing that a significant change" }, { "docid": "23446070", "title": "", "text": "dismiss the case for lack of subject matter jurisdiction. NATHANIEL R. JONES, Circuit Judge, dissenting. Because the majority opinion vacates the consent decree on an issue waived by Defendants, because it misapplies Rufo v. Inmates of Suffolk County Jail, — U.S. -, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), because it fails to recognize that the present case involves substantive rather than merely procedural regulations, and because it usurps the district court’s discretion to exercise supplemental jurisdiction over this case, I respectfully dissent. I. The majority reasons that, because, under Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), and Inmates of Orient Correctional Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233 (6th Cir.1991), “procedural statutes and regulations governing parole do not create federal procedural due process rights,” it follows that no basis in federal law exists for the injunctive relief imposed in this ease. Ante at 1164-65. The majority opinion ignores the fact that Defendants raised this argument in 1984. At that time, the district court rejected Defendants’ argument on its merits, and Defendants voluntarily chose not to appeal. This constitutes a waiver of the issue, and I feel it is improper for the majority to consider it here. See Ackermann v. United States, 340 U.S. 193, 197, 200, 71 S.Ct. 209, 211, 212, 95 L.Ed. 207 (1950) (holding that Rule 60(b)(6) relief from allegedly erroneous judgment was unavailable for petitioner who made “voluntary, deliberate, free, untrammeled choice ... not to appeal”); Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1151 (6th Cir.1992) (holding that when parties enter into consent decrees to avoid further litigation, the waiver of the right to litigate defenses must be respected), cert. denied, — U.S. -, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993); Epp v. Kerrey, 964 F.2d 754, 756 (8th Cir.1992) (declining to vacate a nine year old injunction against state officials in part because “the State slept on its rights when it failed to appeal the 1983 Injunction.”); Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir.1991) (issues raised in lower court" }, { "docid": "20111570", "title": "", "text": "require, as the district court suggests, that successor liability be rejected altogether. It only requires rejecting successor liability in this case, because we believe that is what the parties intended. The district court erred because it applied the suceessorship doctrine in order to effectuate what it considered to be the “goals” of the decree. Its task, however, was to ascertain the intent of the parties at the time of settlement. In United States v. Armour & Co., 402 U.S. 673, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971), the Supreme Court explained that [e]onsent decrees are entered into by parties to a ease after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four comers, and not by reference to what might satisfy the purposes of one of the parties to it. Id. at 681-82, 91 S.Ct. at 1757 (emphasis in original) (emphasis added) (footnote omitted). See also Stotts, 467 U.S. at 574, 104 S.Ct. at 2585-85; Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1148 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993). As Armour indicates, the issue is not whether successor liability should be imposed to protect the plaintiffs or labor policy goals, but whether the parties intended to apply the Group Monitoring System to a single facility that GM sold to a third party. Section VII makes clear that compliance with the" }, { "docid": "148040", "title": "", "text": "immunity is justified based upon the nature of the activity in question and the source of the injury to competition. This Article proposes that immunity attaches when: 1) the conduct represents valid petitioning. Valid petitioning is defined as a formal or informal attempt to persuade an independent governmental decision maker consistent with the rules of the political forum in question, and 2) any anticompetitive harms flow directly or indirectly from those persuasive efforts. Raymond Ku, Antitrust Immunity, the First Amendment and Settlements: Defining the Boundaries of the Right to Petition, 33 Ind. L.Rev. 385, 404 (2000). Ku asserts that this self-described, two-pronged “means/souree test” ultimately can be reduced to a single question: “Is the private conduct a valid effort to influence government?” Id. at 421. Applying Ku’s framework to the instant case, it becomes clear that the consent judgments entered by the New Jersey District Court are not eligible candidates for Noerr-Pennington coverage. Courts have acknowledged that the distinction between private settlements and consent judgments is far from obvious and modest at best. See, e.g., Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1148 (6th Cir.1992) (observing that a con sent decree is best described as a “strange hybrid in the law,” id. (quoting Brown v. Neeb, 644 F.2d 551, 557 (6th Cir.1981)) (internal quotation marks omitted), that “is at once a voluntary settlement agreement which could be fully effective without judicial intervention and a final judicial order ... placing] the power and prestige of the court behind the compromise struck by the parties,” id. (alteration in original) (quoting Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983)) (internal quotation marks omitted)); cf, e.g., Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 519, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986) (“[Cjonsent decrees bear some of the earmarks of judgments entered after litigation. At the same time, because their terms are arrived at through mutual agreement of the parties, consent decrees also closely resemble contracts.”). Unlike an opinion, which is aided by an adversarial system that grants a judge the occasion" }, { "docid": "6250317", "title": "", "text": "area in its response to the State’s motion for clarification. Western District of Tennessee Local Rule 7.2 does not provide for a reply brief when filing motions in civil cases, and although the State was working on a motion to file a reply, the district court ruled on its motion to clarify six days after NEF’s response, before the State was able to file a request for permission to file a reply. In light of these unique facts, the State’s Rule 59(e) motion was the first opportunity for it to raise this argument. Turning at last to the merits of the case, the first question we must answer is whether the Agreed Order prohibits the State from working independently of the Corps in the WTT Project area. Undis-putedly, the State has the inherent power to alter or improve rivers and channels within its territory, absent some restraint upon that power. The only potential restraint upon that power that is germane to this appeal is the Agreed Order. “A consent decree is essentially a settlement agreement subject to continued judicial policing.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983). It is a hybrid in the law, sharing features of both a voluntary settlement agreement that requires no judicial intervention and a final judgment order that throws the prestige of the court behind the compromise struck by the parties. Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1017 (6th Cir.1994). The court’s task in interpreting a consent decree is “to ascertain the intent of the parties at the time of settlement.” Huguley v. Gen. Motors Corp., 67 F.3d 129, 134 (6th Cir.1995). The parties, however, frequently have competing goals in forming a consent decree. As the Supreme Court observed, “[t]he decree itself cannot be said to have a purpose; rather, the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.” United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971)." }, { "docid": "6250318", "title": "", "text": "subject to continued judicial policing.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983). It is a hybrid in the law, sharing features of both a voluntary settlement agreement that requires no judicial intervention and a final judgment order that throws the prestige of the court behind the compromise struck by the parties. Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1017 (6th Cir.1994). The court’s task in interpreting a consent decree is “to ascertain the intent of the parties at the time of settlement.” Huguley v. Gen. Motors Corp., 67 F.3d 129, 134 (6th Cir.1995). The parties, however, frequently have competing goals in forming a consent decree. As the Supreme Court observed, “[t]he decree itself cannot be said to have a purpose; rather, the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.” United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971). Additionally, each party to a consent decree will frequently achieve a measure of what it could have hoped to obtain through litigation, but in exchange the party must waive its constitutional rights. Thus, “the conditions upon which [a party] has given that waiver must be respected, and the instrument must be construed as it is written,” and not as if either party had obtained all that it sought in litigation. Id.; see also Vanguards, 23 F.3d at 1017 (“[T]he scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it or by what might have been written had the plaintiff established his factual claims and legal theories in litigation.” (internal quotation marks omitted) (quoting Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 573, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984))); Williams, 720 F.2d at 920 (“A consent decree ... should be strictly construed to preserve the bargained for position of the parties.”). All parties agree" }, { "docid": "16102849", "title": "", "text": "fund); Brotherton, 141 F.Supp.2d at 913-14 (granting a $50,000 incentive award out of a $5.25 million fund). Without a common fund, however, there is no place from which to draw an incentive award. Unsurprisingly, we are unable to find any case where a claim for an incentive award that is not authorized in a settlement agreement has been granted in the absence of a common fund. Here there is neither authorization in the consent decree for this incentive award nor a common fund from which it could be drawn. As a result, it is plainly inappropriate to grant an incentive award. We also note that this result comports with our holdings on consent decrees generally. Moore here is essentially asking the defendants to take on the additional burden of an incentive award above and beyond the liabilities they had agreed to in the consent decree settling the lawsuit — -for the absence of a common fund here means that Moore would have to obtain the incentive award not from a communal fund belonging to him and his fellow class members, but from the defendants directly. Moore phrases it as merely forcing the defendants to reallocate some of the money from the implementation of the consent decree to his incentive award, but that misses the point. “A consent decree, although in effect a final judgment, is a contract founded on the agreement of the parties.” Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.), cert. denied, 506 U.S. 827, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992). “ ‘It should [therefore] be construed to preserve the position for which the parties bargained.’” Gonzales v. Galvin, 151 F.3d 526, 531 (6th Cir.1998) (citation omitted). Forcing the defendants to pay the incentive award is certainly an additional expenditure, and it is therefore impermissible. See Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1153 (6th Cir.1992) (holding that an increase of one party’s “financial obligations under the consent decree beyond [the agreed-upon amount] constitutes an abuse of discretion and cannot stand”), cert. denied, 509 U.S. 905, 113 S.Ct. 2998, 125 L.Ed.2d" }, { "docid": "23605761", "title": "", "text": "purpose. See United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). “Judicial approval of a settlement agreement places the power and prestige of the court behind the compromise struck by the parties.” Williams, 720 F.2d at 920 (emphasis added). The standard for justifying the modification of a consent decree is a strict one and “a consent decree is, after all, a judgment and entitled to a presumption of finality.” Delaware Valley Citizens’ Council for Clean Air v. Pennsylvania, 674 F.2d 976, 980-81 (3d Cir.), cert. denied, 459 U.S. 905, 103 S.Ct. 206, 74 L.Ed.2d 165 (1982). Amicus’s argument, citing to Groseclose v. Dutton, 788 F.2d 356 (6th Cir.1986), that the November 3, 1989 order to design and implement a revised professionally-based classification plan and validating procedure was not a final appealable order is misconceived. Assuming, arguendo, the correctness of amicus curiae’s position, it should be noted that the orders of November 3 and November 6, 1989, the two separate orders dated January 24, 1990, as well as the decision of April 4, 1990, had their common origin in the July 16, 1984 consent decree and incorporated state plan. Read in pan materia, the district court’s orders dated November 3,1989, November 6, 1989, and January 24, 1990 mandated, in detail, the content, nature, and scope of the validating procedures that Michigan was to implement in performing its future compliance audits to satisfy its commitments in the July 16, 1984 consent decree. A comparison of Michigan’s June 3, 1988 professionally-based classification plan and validating procedures with the court’s prescribed classification plan and monitoring procedures, which were mandated to be incorporated into Michigan’s revised classification plan, disclosed that they joined legal issues that could be decided without further factual elaboration. Thus, they were immediately reviewable upon appeal even though the appeal was from an entry of a preliminary injunction. Any future action that could have been taken by the district court would not have changed or affected the legal issues presented in this appeal. Accordingly, appellate review of the injunctive orders of the district" }, { "docid": "17028360", "title": "", "text": "Release Escrowed Funds, filed May 2, 1995). On July 26, 1996 the district court ordered the release of the escrowed funds upon deciding that it only had subject matter jurisdiction to determine “whether [the] Settlement Agreement and the Consent Decree permit WM[0] to locate the buildings on the south side” and could not address the impact of any state law claims in answering this question. J.A at 41 (District Ct. Op. at 10). The scope of the district court’s subject matter jurisdiction over this dispute is the narrow issue now on appeal before this court. The district court had jurisdiction over the action that ended with entry of the Consent Decree pursuant to 28 U.S.C. § 1331 (federal question). This court has appellate jurisdiction, pursuant to 28 U.S.C. § 1292(a)(1), over the district court’s July 26,1996 interlocutory order refusing to modify a consent decree which is injunctive in nature. See Carson v. American Brands, Inc., 450 U.S. 79, 86-87, 101 S.Ct. 993, 997-98, 67 L.Ed.2d 59 (1981); Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1147 (6th Cir.1992), cert. denied, 509 U.S. 905, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993). II. ANALYSIS This court should review de novo the district court’s jurisdictional ruling. See In re Dow Corning Corp., 86 F.3d 482, 488 (6th Cir.1996), cert. denied, Official Comm. of Tort Claimants v. Dow Corning Corp., — U.S. -, 117 S.Ct. 718, 136 L.Ed.2d 636 (1997), and cert. denied, Breast Implant Tort Claimants v. Dow Corning Corp., — U.S. -, 117 S.Ct. 718, 136 L.Ed.2d 636 (1997); accord Greater Detroit Resource Recovery Auth. v. United States EPA, 916 F.2d 317, 319 (6th Cir.1990). Furthermore, while factual findings must be accepted unless clearly erroneous, any application of legal principles to these subsidiary factual determinations will also be reviewed de novo. See Waxman v. Luna, 881 F.2d 237, 240 (6th Cir.1989); accord Alaska v. Babbitt, 75 F.3d 449, 451 (9th Cir.), cert. denied, — U.S. -, 117 S.Ct. 70, 136 L.Ed.2d 30 (1996). WMO claims that the district court does possess subject matter jurisdiction over the buildings relocation issue even" }, { "docid": "8877733", "title": "", "text": "52 S.Ct. 460, 464, 76 L.Ed. 999 (1932), decided long before adoption of the rule, controlled its application. Swift had announced a stringent test: with respect to the antitrust consent decree before the Court, “[njothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions” would warrant modifying the decree at the behest of the enjoined parties. 286 U.S. at 119, 52 S.Ct. at 464. On its face Swift’s “grievous wrong” language seemed to reflect a “hardening of the usual standards for modifying decrees of injunctive relief_” New York State Ass’n for Retarded Children, Inc. v. Carey, 706 F.2d at 968. The setting of Swift, however, indicated that the opinion might have a more limited compass: the defendants there had waged a strenuous campaign to avoid compliance; and the “modification on which the Supreme Court passed in Swift would have robbed the 1920 consent decree of so much of its force that the Court considered it ‘revers[al] under the guise of readjustment’, 286 U.S. at 119 [52 S.Ct. at 464].” 706 F.2d at 968. Any doubts about the continued significance of Swift were, we believe, laid to rest in Rufo. Relying substantially on New York State Ass’n for Retarded Children, Inc. v. Carey, the Supreme Court rejected the idea that Rule 60(b)(5) codified Swift’s “grievous wrong” test. 502 U.S. at 378-79, 112 S.Ct. at 757. Rather, Rule 60(b)(5) set down a “less stringent ... standard” intended to meet the “need for flexibility in administering consent decrees,” id. at 380, 112 S.Ct. at 758. All parties to this, appeal — AT & T, the United States, BellSouth and Bell Atlantic — therefore agree that in reviewing the district court’s order we must look to Rufo rather than Swift. Two courts of appeals, however, have treated Rufo as a decision limited to institutional reform litigation, see Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1148-49 (6th Cir.1992) (in banc), cert. denied, — U.S. -, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993); W.L. Gore & Assocs., Inc. v. C.R. Bard, Inc., 977 F.2d 558, 562 (Fed.Cir.1992); another" }, { "docid": "11574780", "title": "", "text": "intervention” and “a final judicial order ... placing] the power and prestige of the court behind the compromise struck by the parties.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983). Hence, a consent decree is a “settlement agreement subject to continued judicial policing.” Id. Accordingly, the “‘scope of a consent decree must be discerned within its four comers, and not by reference to what might satisfy the purposes of one of the parties to it’” or by what “ ‘might have been written had the plaintiff established his factual claims and legal theories in litigation.’ ” Firefighters Local Union No. 178b v. Stotts, 467 U.S. 561, 574, 104 S.Ct. 2576, 2585, 81 L.Ed.2d 483 (1984) (quot- mg United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971)). However, a consent decree should be construed to preserve the position for which the parties bargained. Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.) (citing Williams, 720 F.2d at 920), cert. denied, — U.S. -, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992). Nevertheless, judicial approval of a consent decree places the power and prestige of the court behind the agreement reached by the parties. Williams, 720 F.2d at 920. “Once approved, the prospective provisions of the consent decree operate as an injunction.” Id. (citing Plumer v. Chemical Bank, 668 F.2d 654, 659 (2d Cir.1982)). The injunctive quality of a consent decree compels the approving court to: (1) retain jurisdiction over the decree during the term of its existence, (2) protect the integrity of the decree with its contempt powers, and (3) modify the decree if “changed circumstances” subvert its intended purpose. Id. Further, even if the consent decree does not expressly grant the district court jurisdiction to modify the decree, it is well-settled that “ ‘courts retain the inherent power to enforce agreements entered into in settlement of litigation pending before them.’” Sarabia v. Toledo Police Patrolman’s Ass’n, 601 F.2d 914, 917 (6th Cir.1979) (quoting Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1371 (6th Cir.), cert. denied, 429 U.S." }, { "docid": "2321168", "title": "", "text": "much of its attention, as the parties to this appeal did, to the issue of the proper standards to be applied in deciding Lorain’s request for a modification of the consent decree to increase the State’s financial liability. The State of Ohio argues that a strict standard is to be applied, while Lorain and CHIP contend that the district court correctly applied a relaxed modification standard. We shall address this issue as part of a general discussion of the nature and treatment of consent decrees, and the role of the courts in interpreting, enforcing, and modifying their terms. The consent decree is “a strange hybrid in the law.” Brown v. Neeb, 644 F.2d 551, 557 (6th Cir.1981). It is at once “a voluntary settlement agreement which could be fully effective without judicial intervention” and “a final judicial order ... placing] the power and prestige of the court behind the compromise struck by the parties.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983). Thus, a consent decree is aptly described as “a settlement agreement subject to continued judicial policing.” Id. Since consent decrees and orders share many of the attributes of ordinary contracts, “they should be construed basically as contracts, without reference to the [claims the plaintiffs] originally sought to enforce but never proved applicable through litigation.” United States v. ITT Continental Baking Co., 420 U.S. 223, 236-37, 95 S.Ct. 926, 934-35, 43 L.Ed.2d 148 (1975). Furthermore, the Supreme Court has stated that “ ‘the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other_’” Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 522, 106 S.Ct. 3063, 3075, 92 L.Ed.2d 405 (1986) (quoting United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971)). For these reasons, “the ‘scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it’ or by what ‘might have been written had the plaintiff established" }, { "docid": "544392", "title": "", "text": "v. ITT Continental Baking Co., 420 U.S. 223, 235-37, 95 S.Ct. 926, 933-35, 43 L.Ed.2d 148 (1975). In this case, the parties, after much negotiation, reached an agreement on certain steps defendants will take to improve conditions of confinement at the subject institutions and on how the plaintiff will monitor defendants’ compliance with the Decree. The parties’ purposes, in accordance with the provisions of CRIP A, were to protect the inmates’ constitutional rights and to do so in a manner consistent with the precepts of comity and federalism. With regard to the issue presently before the Court, the parties agreed to allow the Knop plaintiffs to participate in this case as an amicus curiae. A consent decree, however, particularly one that implicates the interests of the public and of specific groups of persons who are not parties to the decree, is more than simply a contract between two parties. It also is a judicial order and a continuing decree of injunctive relief. “Judicial approval of a settlement agreement places the power and prestige of the court behind the compromise struck by the parties.” Williams, 720 F.2d at 920. The Court thus maintains a significant interest in the implementation of the decree, and always maintains the authority to modify the injunction “in adaptation to changed conditions.” United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932). In particular, a court retains the authority to modify a decree in light of changed conditions so as to ensure that its purposes are fully implemented. United States v. United Shoe Corp., 391 U.S. 244, 249, 88 S.Ct. 1496, 1499-1500, 20 L.Ed.2d 562 (1968). The Court thus can modify the Consent Decree in this case if it determines that a modification is needed to achieve the Decree’s purposes, i.e., to improve the conditions of confinement at the subject institutions, and thus protect the constitutional rights of the inmates, in a manner consistent with the precepts of comity and federalism. The record reflects that I have done that in the past, such as by appointing an Independent Expert" } ]

[ { "docid": "22160648", "title": "", "text": "clients. Although rigidly enforcing the ethical obligation of confidentiality, the courts have seen no need to fashion a rule that prevents an attorney from ever repre senting an interest adverse to that of a former client. Thus, to disqualify his former counsel, the moving party must prove not only the existence of prior attorney-client relationship but also that there is a genuine threat that confidences revealed to his former counsel will be divulged to his present adversary. The party seeking disqualification is not required, however, to point to specific confidences revealed to his former attorney that are relevant to the pending case. Instead, he “need only to show that the matters embraced within the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented him.” Wilson P. Abraham Constr. Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 89 (5th Cir. 1976); T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 268 (S.D.N.Y.1953). Once the former client proves that the subject matters of the present and prior representations are “substantially related,” the court will irrebuttably presume that relevant confidential information was disclosed during the former period of representation. Id. We find that the district court, though purporting to apply the substantial relationship test, strayed from the legal principles announced in our disqualification cases. As we have indicated, the party seeking disqualification of his former counsel must bear the burden of proving that the present and prior representations are substantially related. In this case the district court appears to have relieved Merrill Lynch of this burden. In discussing the substantial relationship test, the court quoted from the Seventh Circuit’s opinion in Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F.2d 221 (7th Cir. 1978): [Ojnly where it is clearly discernible ‘that the issues involved in a current case do not relate to matters in which the attorney formerly represented the adverse party will the attorney’s present representation be treated as measuring up to the standard of legal ethics.’ Id." } ]

[ { "docid": "8810889", "title": "", "text": "To compel the client to show, in addition to establishing that the subject of the present adverse representation is related to the former, the actual confidential matters previously entrusted to the attorney and their possible value to the present client would tear aside the protective cloak drawn about the lawyer-client relationship. For the Court to probe further and sift the confidences in fact revealed would require the disclosure of the very matters intended to be protected by the rule. T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 269 (S.D.N.Y.1953). Consequently, to avoid this dilemma, courts have been virtually unanimous in requiring only that the moving party in a disqualification motion show (1) that there was an attorney-client relationship between the movant and counsel representing the opposing party and (2) that the subject matter of the current suit is “substantially related” to the matters or cause of action of the suspect attorney’s prior representation. E. g. Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 607-08 (8th Cir. 1977), cert. denied, 436 U. S. 905, 98 S.Ct. 2235, 56 L.Ed.2d 403 (1978); Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); Akerly v. Red Barn System, Inc., 551 F.2d 539, 544 n. 12 (3d Cir. 1977); Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir. 1976); NCK Organization Ltd. v. Bregman, 542 F.2d 128, 132-33 (2d Cir. 1976); Redd v. Shell Oil Co., 518 F.2d 311, 315 (10th Cir. 1975). Once these two facts have been shown, [t]he Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into their nature and extent. T. C. Theatre Corp. v. Warner Bros. Pictures, supra at 268. Accord Schloetter v. Railoc of Indiana, Inc., supra at 710. It is important to note that the reason the courts have created this presumption of counsel possessing confidential information is to prevent the possible use of those confidences or secrets against the former client." }, { "docid": "22581715", "title": "", "text": "“the moving party delineates with specificity the subject matters, issues and causes of action” common to prior and current representations and the court engages in a “ ‘painstaking analysis of the facts and precise application of precedent.’ ” Duncan, 646 F.2d at 1029 (quoting Brennan’s, Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168, 174 (5th Cir.1979)). Finally, the party seeking disqualification bears the burden of proving that the present and prior representations are substantially related. Duncan, 646 F.2d at 1028. This circuit adopted the substantial relationship test before the promulgation of the Rules of Professional Conduct. We must decide the application of the substantial relationship, test under these new Rules. Texas Rule 1.09 provides in relevant part: (a) Without prior consent, a lawyer who personally has formally represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client: (2) if the representation in reasonable probability will involve a violation of Rule 1.05; or (3) if it is the same or a substantially related matter. Rule 1.09(a)(2) incorporates Rule 1.05, which prohibits a lawyer’s use of confidential information obtained from a former client to that former client’s disadvantage. Rule 1.09 thus on its face forbids a lawyer to appear against a former client if the current representation in reasonable probability will involve the use of confidential information or if the current matter is substantially related to the matters in which the lawyer has represented the former client. In providing two distinct grounds for disqualification, the Rules expand the protections for former clients beyond those afforded by the substantial relationship test. The Rules are not, however, broader than the protections provided by our precedents. While the focus of our cases has been on the substantial relationship test, we have indicated that a former client could also disqualify counsel by showing that his former attorney possessed relevant confidential information in the manner contemplated by Rule 1.09(a)(2). As Duncan, for example, stated: “[The moving party may disqualify counsel on the basis of prior representations] either by establishing that the present and previous representations are substantially" }, { "docid": "22212937", "title": "", "text": "Cir. Man. Corp., 216 F.2d 920, 927 (2d Cir. 1954). And we have never believed that labels alone — partner, clerk, co-counsel — should control our decisions in so sensitive an area. Here, where Meister worked closely with Morgan Lewis not only in King (a related case) but in SEC v. Vesco, an appearance of impropriety arises from this close association. Further, given the extraordinary, sui generis facts underlying this action, the generally stated rule that a ‘co-counsel’ relationship will not alone warrant disqualification is of little relevance to this case. See Consolidated Theatres, Inc. v. Warner Bros. Cir. Man. Corp., supra; Akerly v. Red Barn System, Inc., 551 F.2d 539 (3d Cir. 1977); American Can Co. v. Citrus Feed Co., 436 F.2d 1125 (5th Cir. 1971). B. The impropriety of Meister’s continued representation of the Fund appears with even greater clarity in the context of Canon 4’s admonition that an attorney must not disclose the confidences of his client. That Canon has been applied in a long series of cases within this Circuit, starting with a landmark district court opinion in T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y.1953). Confronted with a case where a lawyer was seeking to represent a client whose interests were adverse to those of a former client, Judge Weinfeld instructed that: the former, client [must] show no more than that the matters embraced within the pending suit wherein his former attorney appears . . . are substantially related to the matters or cause of action where the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed . . .. Only in this manner can the lawyer’s duty of absolute fidelity be enforced and the spirit of the rule . . . be maintained. T. C. Theatre Corp. v. Warner Bros. Pictures, supra, at 268-9. The so-called ‘substantially related’ test in T. C. Theatre has been given form over the years, both in the exclusive context of private practice, see, e. g., Emle Industries, Inc. v. Patentex, Inc.," }, { "docid": "23025459", "title": "", "text": "Canon 4 is designed to preserve the trust of the client in his lawyer, without which the practice of law, whatever else it might become, would cease to be a profession. Because Canon 4 is limited by its language to the duty of the lawyer to his client, International Electronics Corp. v. Flanzer, 527 F.2d 1288 (2d Cir. 1975), one who seeks to employ Canon 4 to disqualify opposing counsel must show that counsel to have, or to have had, an attorney-client relationship with an adverse party in the present suit. The movants in In re Yarn Processing Patent Validity Litigation, 530 F.2d 83 (5th Cir. 1976), established an attorney-client relationship by proving they had engaged the attorney whose disqualification was sought. The court in Continental Oil Co. v. United States, 330 F.2d 347 (9th Cir. 1964), found an attorney-client relationship in the advice and representation provided certain parties. It is not here contended or shown that members of the Lashly firm were engaged by, or advised or represented, Shell or Amoco in the prior antitrust suit. The evidence supports the finding of the district court that neither Shell nor Amoco was ever a client of the Lashly firm. Canon 4 is therefore inapplicable. In reliance on Canon 4, Shell and Amoco argue unnecessarily that the Lashly firm had “access” to confidential information. The attorney-client relationship raises an irrefutable presumption that confidences were disclosed. In re Yarn Processing, 530 F.2d at 89. Further, the presumed access of a partner to confidential information results in imputation of that information to others in his firm. Laskey Bros, of W. Va., Inc. v. Warner Bros. Pictures, Inc., 224 F.2d 824 at 827 (2nd Cir. 1955). The presump tion is an absolute necessity if the goal sought by Canon 4 is to be achieved. Indeed, a failure to apply the presumption in attempted disqualification cases would impinge upon, if not destroy, the underlying client’s privilege against disclosure of the information imparted in confidence to his lawyer: [T]he court need not, indeed cannot, inquire whether the lawyer did, in fact, receive confidential information during his" }, { "docid": "21582899", "title": "", "text": "Code of Prof. Resp., DR5-105(D); American Can Co., v. Citrus Feed Co., 436 F.2d 1125 (5th Cir.1971); Amoco Chem. Corp. v. MacArthur, 568 F.Supp. 42 (N.D.Ga.1983). In this case, however, the attorney involved in Tipton’s estate representation submitted an affidavit stating that she had never discussed her representation of Tipton with the lawyers in her firm representing CIBC except in immaterial ways specifically identified in the affidavit. Moreover, CIBC’s attorneys attested that they had obtained no confidential information with respect to Tipton from the attorney representing Tip-ton in the property dispute. After reviewing the record and the applicable statutory and case law, we find that the district court properly denied Tipton’s motion for disqualification. E. Costs for Defending this Appeal Pursuant to 28 U.S.C.A. § 1912 and Rule 38 of the Federal Rules of Appellate Procedure, CIBC moves this court to assess damages and double costs against Tipton for bringing this “frivolous appeal.” We do not agree that Tipton’s appeal was frivolous, and therefore, CIBC’s request for costs is hereby denied. III. CONCLUSION For the reasons stated above, we find that the district court properly granted summary judgment on Tipton’s contract, fraud, and tortious interference claims, and properly denied Tipton’s motion to disqualify CIBC’s counsel. We also find that the district court’s findings on Tipton’s discrimination claims were not clearly erroneous. Accordingly, we AFFIRM the rulings of the district court. . On appeal, Tipton does not challenge the district court's findings on the disparate treatment claim. Instead, Tipton argues only that the district court erred in ruling against her on the retaliation claim. To the extent Tipton’s appeal can be viewed as challenging the district court's findings on the disparate treatment claim, however, we note that the district court’s findings were not clearly erroneous, and therefore, must be affirmed. See Pullman-Standard, 456 U.S. at 287, 102 S.Ct. at 1789. . The letter agreement provided as follows: We refer to our recent interview with you and are pleased to offer you employment with the Bank as Manager, Corporate Banking, Atlanta at a commencing salary of $43,000 per annum effective the date" }, { "docid": "23213580", "title": "", "text": "closeness in the same field of representation as the relationship between the Chadwell Firm and Kraft. More importantly, the precedents of this circuit do not indicate that even great prejudice to the party whose attorney is disqualified would warrant departure from the substantial relationship standard. Container’s third argument is that the presumption that confidences had been given by Kraft to the Chadwell Firm has been rebutted in this case because every Chad-well lawyer has submitted an affidavit swearing that he or she did not give Kraft ■ advice on these matters. That raises a question not decided before in this circuit, to wit, whether the presumptions that arise under the substantial relationship test are rebuttable. As the Seventh Circuit has noted, there are two presumptions to be dealt with. The first is that confidential information has been given to the attorney actually doing work for the client. The second is that the attorney shared the information with his partners. Novo Terapeutisk Laboratorium A/S v. Baxter Travenol Laboratories, Inc., 607 F.2d 186, 196 (7th Cir. 1979). This circuit has exhibited reluctance to apply the latter presumption repeatedly to disqualify new partners of an attorney vicariously disqualified by virtue of his former partners’ representing certain clients. American Can Co. v. Citrus Feed Co., 436 F.2d 1125, 1129 (5th Cir. 1971). The Second Circuit refused to disqualify an attorney who had a short association with a large law firm when he represented an adversary of one of his former firm’s clients. Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751, 753-54 (2d Cir. 1975), overruled on appealability issue, Armstrong v. McAlpin, 625 F.2d 433, 440 (2d Cir. 1980), vacated, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981). While this presumption of imputed knowledge may be unduly harsh in some circumstances, it is not here. Kraft is Chadwell’s oldest client. The fees gener ated by work for Kraft indicate that it is a substantial client. Though the attorneys who worked most closely with Kraft during the period in question have now left the Chadwell Firm, imputing their knowledge to those" }, { "docid": "13338283", "title": "", "text": "has employed him and extends this obligation beyond termination of the employment. Indeed, an attorney is prohibited from accepting a subsequent representation where there ‘may be the appearance of a possible violation of confidences’ even though this may not be true in fact. ABA Committee on Professional Ethics, Informal Opinion No. 885 (1965). Courts have enforced these precepts by requiring disqualification of counsel where it appears that the subject matter of a pending suit in which the attorney represents an interest adverse to a prior employer is such that during the course of the former representation the attorney ‘might have acquired substantially related material.’ Richardson v. Hamilton Int’l Corp. 469 F.2d [1382] at 1385 (3d Cir. 1972); T. C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F.Supp. 265 (S.D.N.Y.1953). American Roller Company v. Budinger, 513 F.2d 982, 984 (3d Cir. 1975). If an attorney is prohibited by the Code from representing a particular client in a particular action, all the members of his law firm are similarly disqualified. DR 5 — 105(D); American Can Co. v. Citrus Feed Co., 436 F.2d 1125, 1128 (5th Cir. 1971). If Mr. Tobias acquired any “substantially related material” in the prior matter, and is ethically prohibited from serving as counsel to the plaintiffs in this case, Ober, Grimes and Shriver must be disqualified as a firm. The “substantial relationship” standard must be used, as Budinger, supra, indicates, to test the likelihood that certain “material” in the former and present actions is substantially similar. There is no requirement that the former and present suits involve similar causes of action; the two cases may be entirely dissimilar. However, the Court must attempt to prevent confidential information that might have been gained in the first representation from being used to the detriment of the former client in the subsequent action. If the client in the prior representation might have imparted confidential information to his lawyer to aid the lawyer in dealing with particular issues, and if issues arise in the second suit which would permit the use of such confidences against the original client, the substantial" }, { "docid": "23213582", "title": "", "text": "partners remaining in the firm presumes only that which makes lawyers associate themselves in a shared practice of their profession. Among partners and regarding a long-time substantial client, this single-imputation rule cannot be rebutted. We now return to the first presumption, that confidences were given by the client to the attorney. One of the first articulations of that presumption was in T.C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F.Supp. 265 (S.D.N.Y.1953). In granting the motion to disqualify based on Canon 6 of the Canons of Professional Ethics (which have been superseded by the Code of Professional Responsibility), the court stated: [T]he former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into their nature and extent. Only in this manner can the lawyer’s duty of absolute fidelity be enforced and the spirit of the rule relating to privileged communications be maintained. Id. at 268-69. In that case, the only issue was what the movant had to show. Thus, there was no occasion for the court to determine whether the presumption was rebut-table. Several decisions of this court have cited T.C. Theatre Corp. approvingly. Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); American Can Company v. Citrus Feed Co., 436 F.2d 1125, 1128 (5th Cir. 1971). In Wilson P. Abraham this court said: This rule [the substantial relationship rule] rests upon the presumption that confidences potentially damaging to the client have been disclosed to the attorney during the former period of representation. The Court may not even inquire as to whether such disclosures were in fact made or whether the attorney in fact is likely to use the damaging disclosures to the detriment of its former client" }, { "docid": "7344987", "title": "", "text": "to the State’s position, we find no compelling reason to break with stare decisis in requiring as a necessary condition to proving an “actual conflict” the actual revelation of confidential information during the prior representation. The rule of law in this circuit is (and will continue to be) that “once the former client [petitioner] proves that the subject matters of the present and prior representations are ‘substantially related,’ the court will irrebutably presume that relevant confidential information was disclosed during the former period of representation.” Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020, 1028 (5th Cir.1981), cert. denied, 454 U.S. 895, 102 S.Ct. 394, 70 L.Ed.2d 211 (1981). It is true that this rule has its origin in pretrial proceedings concerning motions to disqualify lawyers, as opposed to post-conviction proceedings concerning Sixth Amendment violations. E.g., Duncan, 646 F.2d at 1033 (vacating district court’s order granting defendant’s motion to disqualify plaintiffs lawyer, for want of sufficient evidence that lawyer’s current representation of plaintiff substantially related to the lawyer’s former representation of defendant). Yet, the rationale behind the rule applies to both types of proceedings. The reason for this presumption is that it is not practical or fair to require a subsequent client {e.g., Freund) to prove what specific facts the former client {e.g., Trent and Mills) disclosed to the lawyer during the prior representation. Moreover, standards of professionalism often prevent the lawyer from disclosing such information without the former client’s consent. To avoid these complications, upon a showing of substantial relatedness, we presume that the former client {e.g., Trent and Mills) divulged to the lawyer {e.g., Colton) all of his or her confidences relevant to the subject of the representation. The State fails to' reconcile its position with these practical difficulties of proof that are equally present in the post-conviction context. See Appellee’s En Banc Answer Brief at 8 (“[T]he presumption serves no useful purpose in the context of the instant case since representation of the new client, i.e. Freund had already occurred when the allegation of conflict arose.”). Nor do we accept the State’s view that" }, { "docid": "22581713", "title": "", "text": "represented American in matters substantially related to the present case and VE’s representation of Northwest in this case will likely involve the use to American’s disadvantage of confidential information obtained during these earlier representations. We will first discuss the applicable ethical standards. We will then apply these standards to the prior representations alleged by American to warrant VE’s disqualification. A. American contends that VE’s prior representations of American make disqualification appropriate under this court’s precedents and the Texas Rules. Our review in previous cases involving prior representations has been governed by the “substantial relationship” test: A party seeking to disqualify opposing counsel on the ground of a former repre- ■ sentation must establish two elements: 1) an actual attorney-client relationship between the moving party and the attorney he seeks to disqualify and 2) a substantial relationship between the subject matter of the former and present representations. Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1569 (5th Cir.1989); In re Corrugated Container Antitrust Litigation, 659 F.2d 1341, 1345 (5th Cir. 1981); Duncan v. Merrill Lynch, Pierce, Fenner & Smith, 646 F.2d 1020, 1028 (5th Cir.), cert. denied, 454 U.S. 895, 102 S.Ct. 394, 70 L.Ed.2d 211 (1981). Because it is not disputed that VE represented American in the matters under consideration, the sole issue is whether these prior representations are substantially related to the present case. Our inquiry may be narrowed to this single question because the substantial relationship test is governed by an irrebuttable presumption. Once it is established that the prior matters are substantially related to the present case, “the court will irrebuttably presume that relevant confidential information was disclosed during the former period of representation.” Duncan, 646 F.2d at 1028; Corrugated, 659 F.2d at 1347. The test is categorical in requiring disqualification upon the establishment of a substantial relationship between past and current representations. But we have never applied the test in a mechanical way that might “prevent[] an attorney from ever representing an interest adverse to that of a former client.” Duncan, 646 F.2d at 1027-28. Rather, a substantial relationship may be found only after" }, { "docid": "22581714", "title": "", "text": "Lynch, Pierce, Fenner & Smith, 646 F.2d 1020, 1028 (5th Cir.), cert. denied, 454 U.S. 895, 102 S.Ct. 394, 70 L.Ed.2d 211 (1981). Because it is not disputed that VE represented American in the matters under consideration, the sole issue is whether these prior representations are substantially related to the present case. Our inquiry may be narrowed to this single question because the substantial relationship test is governed by an irrebuttable presumption. Once it is established that the prior matters are substantially related to the present case, “the court will irrebuttably presume that relevant confidential information was disclosed during the former period of representation.” Duncan, 646 F.2d at 1028; Corrugated, 659 F.2d at 1347. The test is categorical in requiring disqualification upon the establishment of a substantial relationship between past and current representations. But we have never applied the test in a mechanical way that might “prevent[] an attorney from ever representing an interest adverse to that of a former client.” Duncan, 646 F.2d at 1027-28. Rather, a substantial relationship may be found only after “the moving party delineates with specificity the subject matters, issues and causes of action” common to prior and current representations and the court engages in a “ ‘painstaking analysis of the facts and precise application of precedent.’ ” Duncan, 646 F.2d at 1029 (quoting Brennan’s, Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168, 174 (5th Cir.1979)). Finally, the party seeking disqualification bears the burden of proving that the present and prior representations are substantially related. Duncan, 646 F.2d at 1028. This circuit adopted the substantial relationship test before the promulgation of the Rules of Professional Conduct. We must decide the application of the substantial relationship, test under these new Rules. Texas Rule 1.09 provides in relevant part: (a) Without prior consent, a lawyer who personally has formally represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client: (2) if the representation in reasonable probability will involve a violation of Rule 1.05; or (3) if it is the same or a substantially related matter. Rule 1.09(a)(2)" }, { "docid": "23025471", "title": "", "text": "Inc. v. Chrysler Motors Corp., 496 F.2d 800 (2nd Cir. 1974) (Silver Chrysler I); Cord v. Smith, 338 F.2d 516, 521 (9th Cir. 1964) clarified 370 F.2d 418 (9th Cir. 1966). Appeal under § 1292(b), discretionary with the district and appellate courts, is uncertain in result and not generally used. See Silver Chrysler I, supra. . The movant must also show (as here) that “the matters involved in the pending suit in which his former attorney represents his adversary are substantially related to the matters or cause of action in which the attorney previously represented him . . . .” American Can Co. v. Citrus Feed Co., 436 F.2d 1125, 1128 (5th Cir. 1971) (speaking of former Canons 6 and 37, the predecessors of Canon 4). . H. Drinker, Legal Ethics 106 (1965). . We need not decide whether an appearance of impropriety might be created by prior representation of a codefendant, where a full, substantive defense was jointly prepared • and presented in a completed trial, or whether such representation might shift the burden of proof to the challenged lawyer. . Shell and Amoco point to the self-disqualification of Judge Regan, but that disqualification turned on the appearance of partiality, not impropriety. The Lashly firm, as an advocate, is not expected to be impartial." }, { "docid": "23340443", "title": "", "text": "See Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1577 (Fed.Cir.1984). In addition, Childs’ knowledge may be imput- ed to his current partners and employees. See American Can Co. v. Citrus Feed Co., 436 F.2d 1125, 1129 (5th Cir.1971); see also In re Corrugated Container Antitrust Litigation, 659 F.2d 1341, 1346-47 (5th Cir. Unit A Oct. 1981); cf. Mallard v. M/V “Germundo”, 530 F.Supp. 725, 727 (S.D. Fla.1982), aff'd mem., 746 F.2d 813 (11th Cir.1984) (discussing Canon 4 and Canon 9 together). Thus, even though ACIPCO has never been a Wiggins client, it may be treated as a former one for the purposes of Canon 4. See American Can Co., 436 F.2d at 1129. The second prong of the test requires that ACIPCO prove that the matters handled by Childs previously are “substantially related” to the issues in the current litigation. ACIPCO notes that Childs was exposed to its employment practices while he worked on company matters and that Childs actually helped develop ACIPCO’s pre-certification poll conducted in this case. Moreover, Childs negotiated the 1980 consent decree on ACIPCO’s behalf in the Pettway case. As this court noted in the previous Cox appeal, a “difficult question” exists regarding whether certain class members who obtained relief in Pettway could also prevail in this litigation. See Cox, 784 F.2d at 1561. Because of his efforts in Pettway and his prior work on this case, ACIPCO argues, Childs has represented the company in matters substantially related to those being litigated here. In Duncan, 646 F.2d at 1029, the court stated that “[o]nly when the moving party delineates with specificity the subject matters, issues, and causes of action presented in former representation can the district court determine if the substantial relationship test has been met.” Again, the district court did not explicitly decide whether ACIPCO sufficiently showed the issues to be substantially related. Fortunately, however, we need not reach this question. For purposes of this portion of the opinion, we will assume that ACIPCO has met its burden of proof. According to the plaintiffs, ACIPCO waived its right to seek disqualification" }, { "docid": "8660978", "title": "", "text": "federal law. Woods v. Covington County Bank, 537 F.2d 804, 810 (5th Cir.1976); see also In re Corrugated Container Antitrust Litigation, 659 F.2d 1341, 1344 (5th Cir.1981); In re Dresser Industries, Inc., 972 F.2d 540, 543 (5th Cir.1992). Disqualification may be either “actual,” based on the attorney’s own relation to the movant, or “imputed,” based on the attorney’s relation to another attorney disqualified from representing the movant. Nationwide’s motion implicates both forms of disqualification. I. Actual Disqualification. A. Confidentiality and Conflict of Interest. Motions to disqualify based on confidentiality and conflict of interest are governed by the same two-part test. Compare Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir.), cert. denied, 528 U.S. 817, 120 S.Ct. 57, 145 L.Ed.2d 50 (1999)(conflict of interest) and Cossette v. Country Style Donuts, Inc., 647 F.2d 526, 528, 530 (5th Cir.1981)(same) with Duncan v. Merrill Lynch, 646 F.2d at 1027-28 (confidentiality) and United States v. Kitchin, 592 F.2d 900, 904 (5th Cir.1979)(same) with American Can Co. v. Citrus Feed Co., 436 F.2d 1125, 1128 (5th Cir.1971)(both). The movant must first establish that an attorney-client relationship formerly existed between the movant and its opponent’s counsel. E.g., Cox v. American Cast Iron Pipe, 847 F.2d at 728; Duncan v. Merrill Lynch, 646 F.2d at 1028; In re Corrugated Container, 659 F.2d at 1345; American Can v. Citrus Feed, 436 F.2d at 1129. As noted, it is uncontroverted that Satter-white and Erwin both rendered professional services to Nationwide while associated with Janecky Newell. The first element of Nationwide’s motion to disqualify is therefore satisfied. When a motion to disqualify is based on confidentiality or conflict of interest, “the moving party must prove ... that there is a genuine threat that confidences revealed to his former counsel will be divulged to his present adversary.” Duncan v. Merrill Lynch, 646 F.2d at 1028. If the movant shared confidences with former counsel, and if these confidences are relevant to the present matter, a genuine threat exists that the attorney will use the confidences against his former client. Id. The second element necessary to support disqualification, discussed below, identifies the" }, { "docid": "23213581", "title": "", "text": "This circuit has exhibited reluctance to apply the latter presumption repeatedly to disqualify new partners of an attorney vicariously disqualified by virtue of his former partners’ representing certain clients. American Can Co. v. Citrus Feed Co., 436 F.2d 1125, 1129 (5th Cir. 1971). The Second Circuit refused to disqualify an attorney who had a short association with a large law firm when he represented an adversary of one of his former firm’s clients. Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751, 753-54 (2d Cir. 1975), overruled on appealability issue, Armstrong v. McAlpin, 625 F.2d 433, 440 (2d Cir. 1980), vacated, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981). While this presumption of imputed knowledge may be unduly harsh in some circumstances, it is not here. Kraft is Chadwell’s oldest client. The fees gener ated by work for Kraft indicate that it is a substantial client. Though the attorneys who worked most closely with Kraft during the period in question have now left the Chadwell Firm, imputing their knowledge to those partners remaining in the firm presumes only that which makes lawyers associate themselves in a shared practice of their profession. Among partners and regarding a long-time substantial client, this single-imputation rule cannot be rebutted. We now return to the first presumption, that confidences were given by the client to the attorney. One of the first articulations of that presumption was in T.C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F.Supp. 265 (S.D.N.Y.1953). In granting the motion to disqualify based on Canon 6 of the Canons of Professional Ethics (which have been superseded by the Code of Professional Responsibility), the court stated: [T]he former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will" }, { "docid": "8810890", "title": "", "text": "U. S. 905, 98 S.Ct. 2235, 56 L.Ed.2d 403 (1978); Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); Akerly v. Red Barn System, Inc., 551 F.2d 539, 544 n. 12 (3d Cir. 1977); Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir. 1976); NCK Organization Ltd. v. Bregman, 542 F.2d 128, 132-33 (2d Cir. 1976); Redd v. Shell Oil Co., 518 F.2d 311, 315 (10th Cir. 1975). Once these two facts have been shown, [t]he Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into their nature and extent. T. C. Theatre Corp. v. Warner Bros. Pictures, supra at 268. Accord Schloetter v. Railoc of Indiana, Inc., supra at 710. It is important to note that the reason the courts have created this presumption of counsel possessing confidential information is to prevent the possible use of those confidences or secrets against the former client. This approach preserves the interest of the former client, in the specific information as well as the public interest in encouraging clients to freely “make known to their attorneys all facts pertinent to their cause.” T. C. Theatre Corp. v. Warner Bros. Pictures, supra at 269 (footnote omitted). Limiting the inquiry to determining whether a possibility exists that confidential information might be used against a former client also avoids a nightmarish enforcement situation which would be caused by forcing the actual use of confidences to be shown by the moving party or somehow gleaned from in camera inspection by the court. Lengthy experience with this most basic ethical rule has convinced numerous courts that when an attorney represents a party in opposing a former client on a matter substantially related to the previous relationship, the possibility of the attorney using confidential information against his former client exists and the lawyer must be disqualified. E. g. Akerly v. Red Barn System, Inc., supra at 544; NCK Organization Ltd. v. Bregman, supra at 134; In re Yarn" }, { "docid": "21582898", "title": "", "text": "including her insubordinate remarks to Cropley, her inability to work under Cropley’s authority, and her blatant challenges to Cropley’s authority. We are unwilling to say that the statement in the reference substantially swayed the district court’s decision-making process. Consequently, we hold that the admission of the statement, even if error, was only a harmless one. D. Disqualification At the time Tipton filed the instant suit, she was being represented by another attorney in defense counsel’s law firm in an unrelated property dispute. When defense counsel’s law firm discovered the alleged conflict, it sent a letter to Tipton withdrawing their representation of Tipton in the property dispute. Tipton filed a motion to disqualify CIBC’s counsel, but the motion was denied by the district court. Tipton contends that attorneys or law firms must be disqualified from representing a party in a legal action if they have acquired knowledge of the affairs of an opposing party through an attorney-client relationship with the opposing party, and could use such knowledge to the detriment of the opposing party. See ABA Code of Prof. Resp., DR5-105(D); American Can Co., v. Citrus Feed Co., 436 F.2d 1125 (5th Cir.1971); Amoco Chem. Corp. v. MacArthur, 568 F.Supp. 42 (N.D.Ga.1983). In this case, however, the attorney involved in Tipton’s estate representation submitted an affidavit stating that she had never discussed her representation of Tipton with the lawyers in her firm representing CIBC except in immaterial ways specifically identified in the affidavit. Moreover, CIBC’s attorneys attested that they had obtained no confidential information with respect to Tipton from the attorney representing Tip-ton in the property dispute. After reviewing the record and the applicable statutory and case law, we find that the district court properly denied Tipton’s motion for disqualification. E. Costs for Defending this Appeal Pursuant to 28 U.S.C.A. § 1912 and Rule 38 of the Federal Rules of Appellate Procedure, CIBC moves this court to assess damages and double costs against Tipton for bringing this “frivolous appeal.” We do not agree that Tipton’s appeal was frivolous, and therefore, CIBC’s request for costs is hereby denied. III. CONCLUSION For the" }, { "docid": "8654490", "title": "", "text": "733 P.2d 1024, 1027 (Wyo.1987); Prehoda v. Edward Hines Lumber Co., 399 F.Supp. 643, 646 (D.Wyo.1975). Section 207 of the Second Restatement states that “[t]he measure of recovery for a breach of contract is determined by the local law of the state selected by application of the rules of §§ 187-188.” Here, because the parties selected Colorado law in their contract, § 187 dictates that Colorado law applies. Comment e to § 207 instructs that “[t]he local law of the state selected by application of the rule of this Section determines whether plaintiff can recover interest, and, if so, the rate, upon damages awarded him for the period between the breach of contract and the rendition of judgment.” Thus, because § 207 selects Colorado, that state’s law of prejudgment interest applies to this case. The district court erred by applying the whole law of Colorado, including its conflict rules, rather than just the substantive Colorado law of prejudgment interest. This maneuver, known as a renvoi, is appropriate only in limited circumstances not present here. See Restatement (Second) of Conflict of Laws § 8(2) & (3) (1971). Thus we must remand this aspect of the case for the district court to reconsider the availability and, if applicable, the calculation of prejudgment interest under Colorado law. IV Upon being sued by Amoco for breach of § 5.11 of the Unit Operating Agreement, An-schutz filed a number of unrelated counterclaims. The district court found in favor of Anschutz on four of them and ordered Amoco to pay $4,940,585.03. In No. 92-8027, Amoco now appeals these rulings. A In 1985 NGPL sought a declaratory judgment absolving it from liability under its long-term take-or-pay contract with An-schutz. As a result, Anschutz hired law firms in Denver and Chicago and counterclaimed for breach of contract. The ensuing discovery and motion practice lasted three and one-half years. In association with the suit, Anschutz incurred $3.6 million in attorneys’ fees. The district court found, and Amoco does not dispute, that Anschutz’s in-house counsel regularly reviewed the monthly billings of the law firms and found the charges to be" }, { "docid": "22433246", "title": "", "text": "case as a party. In Consolidated Threatres v. Warner Bros. Circuit Management Corp., 216 F.2d 920, 926 (2d Cir. 1954), the court explained that this might typically occur where the former client realizes that any prior disclosures will not prejudice him in the new case. Such consent will prevent the disqualification of the attorney even in a criminal case. United States v. Garcia, 517 F.2d 272 (5th Cir. 1975). A former client seeking to disqualify an attorney who appears on behalf of his adversary need only to show that “the matters embraced within the pending suit * * * are substantially related to the matters or cause of action wherein the attorney previously represented him.” T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y.1953); Emle Industries, Inc. v. Patentex, Inc., supra, at 570. This rule rests upon the presumption that confidences potentially damaging to the client have been disclosed to the attorney during the former period of representation. The court may not even inquire as to whether such disclosures were in fact made or whether the attorney in fact is likely to use the damaging disclosures to the detriment of his former client. Emle Industries, Inc., supra, at 571. The former client is also aided by the presumption that any confidences given to the attorney were shared among the attorney’s partners and employees associated with the attorney at that time. American Can Co. v. Citrus Feed Co., 436 F.2d 1125, 1129 (5th Cir. 1971). These presumptions would seem necessary to aid the frank exchange between attorney and client by helping to preclude even a possibility that information given in confidence by the former client will be used without the client’s consent. Public perception of that possibility will tend to undermine public confidence in the legal profession and the judicial process even if the former client is not in fact damaged. These considerations do not apply where the former client does not object to the seemingly adverse representation. The underlying rules relating to attorney conflicts of interest are designed to allay any apprehension a client may have in" }, { "docid": "8660979", "title": "", "text": "must first establish that an attorney-client relationship formerly existed between the movant and its opponent’s counsel. E.g., Cox v. American Cast Iron Pipe, 847 F.2d at 728; Duncan v. Merrill Lynch, 646 F.2d at 1028; In re Corrugated Container, 659 F.2d at 1345; American Can v. Citrus Feed, 436 F.2d at 1129. As noted, it is uncontroverted that Satter-white and Erwin both rendered professional services to Nationwide while associated with Janecky Newell. The first element of Nationwide’s motion to disqualify is therefore satisfied. When a motion to disqualify is based on confidentiality or conflict of interest, “the moving party must prove ... that there is a genuine threat that confidences revealed to his former counsel will be divulged to his present adversary.” Duncan v. Merrill Lynch, 646 F.2d at 1028. If the movant shared confidences with former counsel, and if these confidences are relevant to the present matter, a genuine threat exists that the attorney will use the confidences against his former client. Id. The second element necessary to support disqualification, discussed below, identifies the circumstances under which the requisite sharing of relevant confidences may be shown. To support disqualification based on confidentiality or conflict of interest, the movant must establish either: (1) that the attorney actually obtained confidential information in connection with his prior representation of the movant that is relevant to the present matter; or (2) that one or more of the matters as to which the attorney rendered professional services to the movant bears a “substantial relation” to the present matter. E.g., Smith v. White, 815 F.2d 1401, 1405 (11th Cir.1987); Cossette v. Country Style Donuts, 647 F.2d at 530; Duncan v. Merrill Lynch, 646 F.2d at 1032; Church of Scientology v. McLean, 615 F.2d 691, 692 (5th Cir.1980). The law indulges a presumption that, in the course of his former representation, the attorney received the movant’s store of confidential information relevant to that representation. Cox v. American Cast Iron Pipe, 847 F.2d at 729; In re Corrugated Container, 659 F.2d at 1346. This presumption is irrebuttable and may not be countered with evidence that, in fact," } ]

[ { "docid": "10245318", "title": "", "text": "C. A. 5th Cir. Certiorari denied. Mr. Justice White, dissenting. This case concerns the standard of care required of plaintiffs seeking to recover damages for violations of § 10 (b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5. In the wake of this Court’s decision in Ernst & Ernst v. Hochfelder, 425 U. S. 185 (1976), the Courts of Appeals have reached differing conclusions as to the degree of diligence appropriately required. The court below held that because Ernst & Ernst had imposed on defendants a standard not stricter than nonrecklessness, a plaintiff would not be barred from recovery unless he had been reckless. 551 F. 2d 1005. Similarly, the Tenth and Seventh Circuits have held that, after Ernst & Ernst, the contributory fault of the plaintiff would bar recovery only if it constituted “gross conduct somewhat comparable to that of defendant.” Holdsworth v. Strong, 545 F. 2d 687, 693 (CA10 1976), cert. denied, 430 U. S. 955 (1977); Sundstrand Corp. v. Sun Chemical Corp., 553 F. 2d 1033, 1048 (CA7), cert. denied, ante, p, 875. Also, the Third Circuit now “require [s] only that the plaintiff act reasonably” and has shifted to the defendant the burden of proving the plaintiff’s unreasonable conduct. Straub v. Vaisman & Co., 540 F. 2d 591, 598 (1976). The Second Circuit, however, appears to adhere to the view that the plaintiff must demonstrate due diligence in discovering important information. Hirsch v. Du Pont, 553 F. 2d 750, 762-763 (1977); accord, NBI Mortgage Investment Corp. v. Chemical Bank, 75 Civ. 3411 (SDNY May 24, 1977) (“the standard of due diligence is still viable and accepted in this circuit”). The Court should take this opportunity to clarify the standard of care expected of plaintiffs in litigation under Rule 10b-5. Business can be transacted more freely and efficiently if the responsibility for verifying underlying facts is clearly allocated. Because securities litigation can be complex and expensive, it shoud be avoided to the maximum extent by early clarification of the ground rules. This Court should thus promptly resolve the existing uncertainty as to' the proper" } ]

[ { "docid": "23351007", "title": "", "text": "prove both the defendant’s scien-ter and his own due diligence, the remedy would be undesirably restricted. Holds-worth decided that “[i]f contributory fault of plaintiff is to cancel out wanton or intentional fraud, it ought to be gross conduct somewhat comparable to that of defendant.” 545 F.2d at 693. The opinion went on to note that at common law a plaintiff’s contributory negligence was not a defense to intentional fraud. Holdsworth is thus in harmony with the antecedents to our present federal securities law. I am convinced that the resolution in Holdsworth of the competing policy consid erations was correct in light of Ernst v. Ernst and the common law underpinning of the securities law protections. One of the principal policies behind the Acts is to protect investors against fraud and, through the imposition of specified civil liabilities, to promote ethical standards of honesty and fair dealing. Ernst v. Ernst, supra, 425 U.S. at 195, 96 S.Ct. at 1382; Dupuy v. Dupuy, 551 F.2d 1005, 1019 (5th Cir.), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d 197. The majority here is understandably concerned about aiding a plaintiff who has failed to read material furnished him concerning the investment. There are two responses to that concern.. First, the policy of prevention of fraud is' the core of the securities laws and must not be overlooked simply because other conflicting policies are also implicated. Indeed, not only in the area of securities but generally the policy of deterring intentional misconduct outweighs that of deterring negligent or reckless conduct. Precisely for this reason Holdsworth has been influential when other courts have reexamined these issues. See, e.g., Dupuy v. Dupuy, supra, 551 F.2d at 1018. “[T]he federal policy of deterring intentional misconduct in securities dealings outweighs the policy of deterring negligent behavior by investors.” Dupuy v. Dupuy, supra, 551 F.2d at 1019. Secondly, the jury here found for the plaintiff under a charge that clearly required the plaintiff to prove that he justifiably relied on the misrepresentations, “that he did not intentionally close his eyes and refuse to investigate, concerning the circumstances in" }, { "docid": "23276176", "title": "", "text": "prove scienter as part of his cause of action, the plaintiffs lack of diligence in investigating the information available to him should not defeat recovery because the defendant’s culpability would be of a far greater degree. The Dupuy court rejected this argument, however: [T]o abandon completely the consideration of reliance in fact and reasonable reliance ignores not only the above[-stated] policies of due diligence but also the need for a causal link between the misrepresentation or omission and the injury suffered by the private plaintiff. The cause of action would no longer provide compensation for losses occasioned by the violation of the [1934] Act because a plaintiff could sue without relying on the fraud. This would transform the action into an enforcement mechanism. We reject this approach .... Id. at 1016. The court did agree, however, that Hochfelder called for a modification of the standard of care under which the plaintiffs conduct would be judged — i. e., a modification that would broaden the definition of “reasonable” reliance. Backing away somewhat from our previous definition of reasonableness, as expressed in cases such as Clement A. Evans & Co. v. Mc Alpine, 434 F.2d 100, 103-04 (5th Cir. 1970), cert. denied, 402 U.S. 988, 91 S.Ct. 1660, 29 L.Ed.2d 153 (1971), the Dupuy court held that mere negligence was not enough to make the reliance unreasonable; instead, to defeat recovery on grounds that the plaintiffs reliance was unreasonable, the plaintiffs conduct must have been a refusal to investigate in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. 551 F.2d at 1020. This court has steadfastly adhered to Dupuys requirement that the plaintiffs reliance have been reasonable — i. e., within the standard of care articulated by the Dupuy court. See, e. g., Paul F. Newton & Co. v. Texas Commerce Bank, 630 F.2d 1111, 1121-22 (5th Cir. 1980) (Charles Clark, J.); Swenson v. Engelstad, 626 F.2d 421, 424 (5th Cir. 1980). The majority points out" }, { "docid": "10092532", "title": "", "text": "view of the fact that negligence had been held inadequate to satisfy the defendant’s intent requirement. The Fifth Circuit undertook this task in Dupuy, 551 F.2d 1005, and held that after Ernst, the relevant inquiry in determining due diligence is whether the plaintiff has “intentionally refused to investigate in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” Dupuy, 551 F.2d 1005 at 1020 (citing W. Prosser, § 34 at 185 (1971)). This “recklessness” standard has been followed without exception in the Fifth Circuit. Stephenson principally contends that the Supreme Court’s decision in Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 105 S.Ct. 2622, 86 L.Ed.2d 215 (1985) essentially abolished the due diligence requirement for private 10b-5 actions as well as the equitable defenses of estoppel, waiver, and ratification. Without citing any apposite language from Bate-man Eichler, appellant asserts that because Bateman Eichler narrowed the availability of the in pari delicto defense in securities fraud cases brought by tip-pees, it correlatively expanded the scope of all private 10b-5 causes of action. We disagree. Bateman Eichler neither discussed the elements of the plaintiff’s cause of action under Rule 10b-5 (as it assumed they existed in the case) nor suggested that its principles govern any other equitable defenses than in pari delicto. In the absence of support from the holding or even dictum of Bateman Eichler, Stephenson must rely solely on analogy to defeat the requirement of a plaintiffs diligence and the possibility of other equitable defenses. His analogy, founded on general references to the deterrent aspects of the federal securities laws, fails. Although due diligence, equitable defenses and the in pari delicto doctrine are arguably related in that they inquire into a plaintiffs conduct, they are applied in decidedly different contexts. The doctrine of due diligence and equitable defenses, like waiver, laches, estoppel or ratification, require an investor to be attentive to self-protection, whereas in pari delicto applies where the plaintiff has failed in" }, { "docid": "23351008", "title": "", "text": "54 L.Ed.2d 197. The majority here is understandably concerned about aiding a plaintiff who has failed to read material furnished him concerning the investment. There are two responses to that concern.. First, the policy of prevention of fraud is' the core of the securities laws and must not be overlooked simply because other conflicting policies are also implicated. Indeed, not only in the area of securities but generally the policy of deterring intentional misconduct outweighs that of deterring negligent or reckless conduct. Precisely for this reason Holdsworth has been influential when other courts have reexamined these issues. See, e.g., Dupuy v. Dupuy, supra, 551 F.2d at 1018. “[T]he federal policy of deterring intentional misconduct in securities dealings outweighs the policy of deterring negligent behavior by investors.” Dupuy v. Dupuy, supra, 551 F.2d at 1019. Secondly, the jury here found for the plaintiff under a charge that clearly required the plaintiff to prove that he justifiably relied on the misrepresentations, “that he did not intentionally close his eyes and refuse to investigate, concerning the circumstances in disregard of a risk known to him, or so. obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” (I J.A. 288). To satisfy the requirement of showing that defendants were guilty of intentional misconduct here, there was evidence before the jury of an extended period of discussions for 30 days or more by the defendants, repeatedly extolling the investments. For example, in comparing the Coal-X issue to other investment opportunities that Phil Rasmussen had been offered by Baker and his company, Baker said that the Coal-X venture was “one of their best, probably the best.” (II J.A. 374, 377). Rasmussen also testified that he raised all his doubts and questions in discussions with defendants on two occasions and that defendants repeatedly assured him that the deal was as good as it was presented to be, if not better. (II J.A. 375-77). Rasmussen testified that the project was described as “a sure thing,” a deal on which “you can’t miss,”" }, { "docid": "17142608", "title": "", "text": "disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976). The standard for misrepresentation is whether the information disclosed, understood as a whole, would mislead a reasonable potential investor. Laird v. Integrated Resources, Inc., 897 F.2d 826, 832 (5th Cir.1990). The scope of this standard is determined by the relative status and sophistication of the parties. Id. As the trial court found, Wyshak’s misrepresentations were material. Wyshak was presented as a Harvard-educated attorney and former Assistant U.S. Attorney, thus it was reasonable that TCL would be misled by Wyshak’s misrepresentations. Wyshak also argues that TCL’s reliance on his custodianship was not justifiable, and that TCL had not performed any semblance of a due diligence examination prior to investing. Wyshak argues that TCL failed to underwrite the NNP transactions, neglected to obtain readily available information on the identity of the borrower, the repayment structure, and failed to obtain financial and credit information. He points out that TCL failed to demand possession of the GNMA certificates or the PD-1832 Assignments, and failed to verify ownership through Chemical Bank before committing funds. Due diligence is a separate element of a private cause of action for violation of Rule 10b-5. The standard for due diligence is “whether the plaintiff has ‘intentionally refused to investigate in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’” Laird, 897 F.2d at 837. Nevertheless, because the federal policy of deterring intentional misconduct in securities dealings outweighs the policy of deterring negligent behavior by investors, a plaintiff should not be held to a standard stricter than recklessness. See Dupuy v. Dupuy, 551 F.2d 1005, 1019-20 (5th Cir.1977), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d 197 (1977). A number of factors may be used to gauge whether a plaintiffs conduct" }, { "docid": "17142607", "title": "", "text": "as well as either knowledge of that danger, or a danger so obvious that the actor must be aware of it. Warren v. Reserve Fund, Inc., 728 F.2d 741, 745 (5th Cir.1984). Analysis of scienter requires an examination of defendant’s conduct, not a mere assertion of plaintiffs confused mind. Warren, 728 F.2d at 745. Wyshak and Eggleston knew at all times that they did not hold the actual GNMAs. Moreover, Wyshak and Eggleston must at the very least have suspected that the formulators of the scheme did not really own the GNMAs in question from their experiences with the FBI and the Utah Insurance Commission. Wys-hak even sent a letter accusing Reliance of fraud, yet he turned around and assured TCL that his firm was indeed the custodian for the GNMA “assets.” Thus, as the trial court found, Wyshak intentionally misrepresented the situation to TCL by' failing to disclose that he did not have the GNMAs. For the purposes of the securities laws, an omission is material if there is a “substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976). The standard for misrepresentation is whether the information disclosed, understood as a whole, would mislead a reasonable potential investor. Laird v. Integrated Resources, Inc., 897 F.2d 826, 832 (5th Cir.1990). The scope of this standard is determined by the relative status and sophistication of the parties. Id. As the trial court found, Wyshak’s misrepresentations were material. Wyshak was presented as a Harvard-educated attorney and former Assistant U.S. Attorney, thus it was reasonable that TCL would be misled by Wyshak’s misrepresentations. Wyshak also argues that TCL’s reliance on his custodianship was not justifiable, and that TCL had not performed any semblance of a due diligence examination prior to investing. Wyshak argues that TCL failed to underwrite the NNP transactions, neglected to obtain readily available information on the identity of the borrower, the repayment structure," }, { "docid": "22264141", "title": "", "text": "predominance prerequisite problematical, but it allows defendant the opportunity to argue that they should escape accountability altogether. Berry, Ending Substance’s Indenture to Procedure: The Imperative for Comprehensive Revision of the Class Damage Action, 80 Colum.L. Rev. 299, 303 (1980). . The facts to which the Second Circuit found Hirsch addressed were “where the comptroller of a large New York stock brokerage firm contemplating merger with another had received an answer to a questionnaire from the latter revealing ‘a possible massive capital deficiency’ and failed to pursue the line of inquiry plainly suggested by this. This went far beyond negligence.” Mallis v. Bankers Trust Co., 615 F.2d at 79. . Courts which have addressed this question following Hochfelder have differed in their application of this doctrine. Compare Dupuy v. Dupuy, 551 F.2d 1005, 1014-20 (5th Cir.), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d 197 (1977) (plaintiff may recover unless reckless in not investigating “in disregard of a risk known to him or so obvious that he must be taken to be aware of it, and so great as to make it highly probable that harm would follow”); and Holmes v. Bateson, 583 F.2d 542, 559 & n.21 (1st Cir. 1978) (same) with Holdsworth v. Strong, 545 F.2d 687, 693 (10th Cir. 1976), cert. denied, 430 U.S. 955, 97 S.Ct. 1600, 51 L.Ed.2d 805 (1977) (plaintiff’s lack of due diligence no bar to action after Hochfelder unless plaintiffs actions constituted “gross conduct ... comparable to that of defendant”) and Sunstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, 1048 (7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 224, 54 L.Ed.2d 155 (1977) (same) and Straug v. Vaisman and Co., 540 F.2d 591, 598 (3d Cir. 1976) (due diligence is an affirmative defense; plaintiff required only to act reasonably under all facts and circumstances) and with Hirsch v. duPont, 553 F.2d 750, 762-63 (2d Cir. 1977) (plaintiff must demonstrate due diligence in discovering material information) and NBI Mortgage Investment Corp. v. Chemical Bank, [1977-78] CCH Fed.Sec.L.Rep. ¶ 96,066 at 91,799 (same) and with Mallis v. Bankers Trust Co., 615" }, { "docid": "22895540", "title": "", "text": "liability may be imposed, also demonstrates the strength of congressional intent to “prevent ‘manipulative and deceptive practices which . . . fulfill no useful function’ ”. 425 U.S. at 206, 96 S.Ct. at 1387, citing S.Rep. No. 792, 73d Cong., 2d Sess., 12-13 (1934); H.R.Rep. No. 1383, 73d Cong., 2d Sess., 10-11, 20-21 (1934). The prospect of unreasonable behavior by investors apparently did not generate such concern; at least the legislative history does not speak of it. It is therefore fair to say that the federal policy of deterring intentional misconduct in securities dealings outweighs the policy of deterring negligent behavior by investors. This argument leads to the conclusion that nothing in the Act requires disregard for the comparative equities of the parties. If it is fairer for a judicially allocated loss to fall upon the more culpable actor under tort law, the judicially created remedial system for the Securities Acts can respond to similar notions of equity without disrupting the legislative scheme. Still another reason to adhere to this approach is that Ernst diminished substantially the need to limit the scope of the 10b-5 remedy. Before Ernst, tremendous liability could result from the negligent behavior of any person connected with a stock sale or purchase. For accountants, lawyers, brokers, dealers, and underwriters who handled these transactions, this potential liability posed a substantial risk to their professional existence. The principle of due diligence and other elements of the private cause of action provide mechanisms for limiting potential liability. See Clement A. Evans & Co. v. McAlpine, 5 Cir. 1970, 434 F.2d 100, 104. With the scienter requirement, liability will be imposed only upon reckless or intentional wrongdoers, reducing substantially the risk on most actors in securities transactions. The need, then, for further limitation by the reasonable diligence requirement becomes questionable. Indeed, the Tenth Circuit has argued that requiring proof of both the scienter of the defendant and the reasonable diligence of the plaintiff would impermissibly limit 10b-5 recoveries to the “extraordinary” cases. Holdsworth v. Strong, 10 Cir. 1976, 545 F.2d 687, 693. The final argument for relaxing the reasonable diligence" }, { "docid": "22443949", "title": "", "text": "plaintiff’s duties in actions for fraud and for negligent misrepresentation; the assertion of a greater federal interest (loosely inferred from the history of the Securities Exchange Act) in deterring intentional misconduct than in deterring negligent misconduct by investors, id. at 1019; a diminished need to limit the scope of 10b-5 liability in the wake of Ernst & Ernst; and the observation “that most 10b-5 cases, when limited to their facts, are consistent with the distinction between intentional and negligent misrepresentation,” i. e., they either held that plaintiff’s negligence was irrelevant in light of defendant’s intentional fraud, or they examined plaintiff’s conduct under the negligence standard while failing to require scienter on the part of the defendant, a course no longer permissible under Ernst & Ernst. Following Prosser’s definition of “willful”, “wanton” or “reckless”, Dupuy concluded that the appropriate standard for evaluating plaintiff’s behavior in a Rule 10b-5 action was whether he intentionally refused to investigate “in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” 551 F.2d at 1020. As against this, Bankers Trust asserts that this circuit is committed to a contrary view by Hirsch v. du Pont, 553 F.2d 750, 762-63 (1977), and particularly by the statement that: The securities laws were not enacted to protect sophisticated- businessmen from their own errors of judgment. Such investors must, if they wish to recover under federal law, investigate the information available to them with the care and prudence expected from people blessed with full access to information. Id. 763. Although district courts in this circuit have so held, see NBI Mortgage Investment Corp. v. Chemical Bank, [CCH] Fed.Dec.L.Rep. ¶ 96,066 at 91,799 (S.D.N.Y.1977); Edwards & Hanly v. Wells Fargo Sec. Clearance Corp., 458 F.Supp. 1110, 1128 & n.12 (S.D.N.Y.1978), rev’d on other grounds but with the opinion approving Hirsch, 602 F.2d 478, 486 (2 Cir. 1979) petition for certiorari filed, 48 U.S.L.W. 3457 (1980), the quoted statement in Hirsch should be limited to facts similar" }, { "docid": "17142610", "title": "", "text": "indicates a lack of due diligence amounting to recklessness so as to bar recovery. Id. The trial court found that TCL relied on its trust officer, James Crank and its attorneys, Johnson & Gibbs to properly authenticate its potential investments. That TCL’s reliance may have been misplaced does mean that it was reckless with regard to its investment, and the federal policy of deterring misconduct such as Wyshak’s outweighs the policy of encouraging investors such as TCL to be more stringent in investigating their trust office/s’ and attorneys’ advice. In sum, Wyshak’s argument that he should not have been found liable under Section 10b-5 is rejected because TCL has established all elements of the claim. Wyshak and Eggleston knowingly and with scienter made material misstatements in connection with the purchase of a security. TCL justifiably relied on those material misstatements and that reliance proximately caused injury to TCL. Recusal Finally, Wyshak argues that the trial court should have been recused under 28 U.S.C. § 455(a) because of an ex parte communication with an unnamed FBI agent. Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). In order to determine whether a court’s impartiality is reasonably in question, the objective inquiry is whether a well-informed, thoughtful and objective observer would question the court’s impartiality. United States v. Jordan, 49 F.3d 152, 155-58 (5th Cir.1995). Apparently, the court disclosed prior to the start of the trial that it had a conversation via telephone with an unnamed FBI agent. Even if, as Wyshak claims, the agent revealed information regarding the case in the course of that conversation, Wyshak nowhere alleges what that information was which could have influenced the court’s decision, nor does he allege that the verdict was based on that information. Wyshak further alleges that the court demonstrated bias when it denied Wyshak’s motion to continue the trial due to his illness, refused to permit Wyshak’s objections to exhibits and depositions, overruled Wyshak’s and Eggleston’s objections to testimony, and concluded that neither Wyshak" }, { "docid": "22895542", "title": "", "text": "standard after Ernst is that most 10b-5 cases, when limited to their facts, are consistent with the distinction between intentional and negligent misrepresentation. In Carroll v. First National Bank, 7 Cir. 1969, 413 F.2d 353, cert. denied, 1970, 396 U.S. 1003, 90 S.Ct. 552, 24 L.Ed.2d 494, for example, the Court said: whatever the relevance of plaintiffs’ negligence might be to the issues at a trial on the merits, it does not support the dismissal of the amended complaint which is based on fraud rather than negligence. Id. at 358. Other cases that required plaintiffs to act reasonably did not require proof of intentional misconduct by defendants. E. g., White v. Abrams, 9 Cir. 1974, 495 F.2d 724; Vohs v. Dickson, 5 Cir. 1974, 495 F.2d 607; Arber v. Essex Wire Corp., 6 Cir. 1974, 490 F.2d 414; City National Bank v. Vanderboom, 8 Cir. 1970, 422 F.2d 221; Rogen v. Ilikon Corp., 1 Cir. 1966, 361 F.2d 260; Jackson v. Oppenheim, S.D.N.Y.1974, 411 F.Supp. 659. See A. Bromberg, Securities Law-Fraud SEC Rule 10b-5 § 8.4(652) (1971). Indeed, because most cases before Ernst did not require scienter, they can be read consistently with the distinction between intentional and negligent misrepresentation cases. We consider that Ernst & Ernst v. Hochfelder prompts a change in the law of due diligence, as it is applicable in 10b-5 cases. Both tort law and federal securities policy support imposing on the plaintiff only a standard of care not exceeding that imposed on the defendant. Although the “scienter” requirement may still be unsettled, the Supreme Court has imposed on defendants a standard not stricter than recklessness. In this case, then, the question should not be whether Milton acted unreasonably by failing to investigate the condition of Lori Corporation. Instead, the Court should ask whether Milton intentionally refused to investigate “in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” W. Prosser, § 34 at 185 (1971). 4. The Due Diligence of" }, { "docid": "10092531", "title": "", "text": "good faith. Dupuy v. Dupuy, 551 F.2d 1005, 1014 (5th Cir.1977), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d 197 (1977). Our analysis in this case focuses on the due diligence element of the claim. Prior to the Supreme Court’s holding in Ernst and Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), reh’g denied, 425 U.S. 986, 96 S.Ct. 2194, 48 L.Ed.2d 811 (1976), many courts adopted a negligence standard in determining whether a plaintiff’s duty of due diligence had been met. See, e.g. Clement A. Evans & Co. v. McAlpine, 434 F.2d 100, 103 (5th Cir.1970); City National Bank of Fort Smith Ark. v. Vanderboom, 422 F.2d 221, 230 (8th Cir.1970), cert. denied, 399 U.S. 905, 90 S.Ct. 2196, 26 L.Ed.2d 560 (1970). In Ernst, the Supreme Court held that mere negligence on the part of a defendant cannot satisfy the scienter requirement for liability under 10b-5. This ruling prompted several circuit courts to reevaluate the appropriateness of a negligence standard in the due diligence context in view of the fact that negligence had been held inadequate to satisfy the defendant’s intent requirement. The Fifth Circuit undertook this task in Dupuy, 551 F.2d 1005, and held that after Ernst, the relevant inquiry in determining due diligence is whether the plaintiff has “intentionally refused to investigate in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” Dupuy, 551 F.2d 1005 at 1020 (citing W. Prosser, § 34 at 185 (1971)). This “recklessness” standard has been followed without exception in the Fifth Circuit. Stephenson principally contends that the Supreme Court’s decision in Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 105 S.Ct. 2622, 86 L.Ed.2d 215 (1985) essentially abolished the due diligence requirement for private 10b-5 actions as well as the equitable defenses of estoppel, waiver, and ratification. Without citing any apposite language from Bate-man Eichler, appellant asserts that because Bateman Eichler narrowed the availability of the" }, { "docid": "13639921", "title": "", "text": "DUE DILIGENCE In their motion for summary judgment, Sorcic and Planning Ahead argued that the plaintiffs failed to exercise due diligence. Comments from the transcript of the motion for summary judgment suggest that the district court may have relied, in part, on due diligence in dismissing the plaintiffs’ suit. Sorcic and Planning Ahead claimed that, inter alia, the plaintiffs did not request forms filed with the Securities and Exchange Commission under Investment Adviser Act regulations. These forms, the argument continues, would have disclosed Sorcic’s receipt of commissions on investments he recommended. Under Fifth Circuit case law, “[i]n order to demonstrate a violation of rule 10(b) — 5, the plaintiff must prove ... due diligence by the plaintiff to pursue his or her own interest with care and good faith.” Stephenson v. Paine Webber Jackson & Curtis. The standard for due diligence is “whether the plaintiff has ‘intentionally refused to investigate in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’ ” “[A] number of factors may be used to gauge whether a plaintiff’s conduct indicates a lack of due diligence amounting to recklessness so as to bar recovery, including ‘[the] existence of a fiduciary relationship...” Under this standard, questions of fact remain regarding the plaintiffs’ due diligence. The district court did not admit evidence of Sorcic’s alleged representations that he did not receive commissions on investments he recommended or consider Sorcic’s fiduciary status as an investment adviser. On remand, the plaintiffs’ due diligence must be judged against these and any other relevant factors. V. RICO The plaintiffs alleged four predicate acts to support their RICO claim: (1) misrepresentation and/or failure to disclose under rule 10(b) — 5; (2) churning; (3) mail fraud; and (4) wire fraud. Each is fraud-based. The district court, however, dismissed the RICO claim as a matter of law because the court found no merit to the plaintiffs’ rule 10(b)-5 claim. Finding Sorcic’s disclosure adequate as a matter of law for the" }, { "docid": "22443948", "title": "", "text": "Hirsch v. du Pont, infra; Sunstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, 1048-49 (7 Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977); Holdsworth v. Strong, 545 F.2d 687, 692-95 (10 Cir. 1976), cert. denied, 430 U.S. 955, 97 S.Ct. 1600, 51 L.Ed.2d 805 (1977); Straub v. Vaisman & Co., 540 F.2d 591, 596-98 (3 Cir. 1976). Another circuit has signalled its rejection of the requirement. See Holmes v. Bateson, 583 F.2d 542, 559 n.21 (1 Cir. 1978). The most complete analysis is in Dupuy. That case, like Straub and Holdsworth, involved the alleged betrayal of a close relationship — plaintiff’s sale of a 47% interest in a closed corporation to his brother. The Dupuy district court entered judgment N.O.V. for defendant on the ground that plaintiff failed to exercise due diligence. The Fifth Circuit reversed, determining that plaintiff’s conduct ought to have been evaluated by a “reckless” standard. 551 F.2d at 1020. Its rationale for the new standard included inter alia an analogy to the tort distinction between plaintiff’s duties in actions for fraud and for negligent misrepresentation; the assertion of a greater federal interest (loosely inferred from the history of the Securities Exchange Act) in deterring intentional misconduct than in deterring negligent misconduct by investors, id. at 1019; a diminished need to limit the scope of 10b-5 liability in the wake of Ernst & Ernst; and the observation “that most 10b-5 cases, when limited to their facts, are consistent with the distinction between intentional and negligent misrepresentation,” i. e., they either held that plaintiff’s negligence was irrelevant in light of defendant’s intentional fraud, or they examined plaintiff’s conduct under the negligence standard while failing to require scienter on the part of the defendant, a course no longer permissible under Ernst & Ernst. Following Prosser’s definition of “willful”, “wanton” or “reckless”, Dupuy concluded that the appropriate standard for evaluating plaintiff’s behavior in a Rule 10b-5 action was whether he intentionally refused to investigate “in disregard of a risk known to him or so obvious that he must be taken to have been aware" }, { "docid": "17142609", "title": "", "text": "and failed to obtain financial and credit information. He points out that TCL failed to demand possession of the GNMA certificates or the PD-1832 Assignments, and failed to verify ownership through Chemical Bank before committing funds. Due diligence is a separate element of a private cause of action for violation of Rule 10b-5. The standard for due diligence is “whether the plaintiff has ‘intentionally refused to investigate in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’” Laird, 897 F.2d at 837. Nevertheless, because the federal policy of deterring intentional misconduct in securities dealings outweighs the policy of deterring negligent behavior by investors, a plaintiff should not be held to a standard stricter than recklessness. See Dupuy v. Dupuy, 551 F.2d 1005, 1019-20 (5th Cir.1977), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d 197 (1977). A number of factors may be used to gauge whether a plaintiffs conduct indicates a lack of due diligence amounting to recklessness so as to bar recovery. Id. The trial court found that TCL relied on its trust officer, James Crank and its attorneys, Johnson & Gibbs to properly authenticate its potential investments. That TCL’s reliance may have been misplaced does mean that it was reckless with regard to its investment, and the federal policy of deterring misconduct such as Wyshak’s outweighs the policy of encouraging investors such as TCL to be more stringent in investigating their trust office/s’ and attorneys’ advice. In sum, Wyshak’s argument that he should not have been found liable under Section 10b-5 is rejected because TCL has established all elements of the claim. Wyshak and Eggleston knowingly and with scienter made material misstatements in connection with the purchase of a security. TCL justifiably relied on those material misstatements and that reliance proximately caused injury to TCL. Recusal Finally, Wyshak argues that the trial court should have been recused under 28 U.S.C. § 455(a) because of an ex parte communication with an unnamed FBI" }, { "docid": "23627638", "title": "", "text": "not preclude him from recovery. Appellants also submit that this inaccuracy was further exacerbated by the interrogatory which asked the jury, without additional explanation, whether due diligence had in fact been exercised in the stock purchase. The appropriate starting point for issues of this type is the language of the instruction itself. With respect to due diligence, the court instructed the jury that By way of defense, defendants contend that plaintiffs did not exercise due diligence regarding the purchase of stock in the Bank of St. Charles & Trust Company. For, even if you should find that any of the defendants violated Rule 10b-5, the plaintiffs are not entitled to recover unless you also find that the plaintiffs exercised due diligence in the transaction. In this regard, you must determine whether or not the plaintiffs intentionally refused to investigate in disregard of a risk known to them or so obvious that they must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. Therefore, if you, the jury, find that the plaintiffs did not intentionally refuse to investigate, as stated above, you must conclude that they exercised due diligence in the purchase of the stock. However, if you find that the plaintiffs did intentionally refuse to so investigate, there can be no recovery. The burden of proof is upon the plaintiffs to prove, by a preponderance of the evidence, that they exercised due diligence in the purchase of the Bank’s stock. Record, vol. 8, at 19-20. Rather than define due diligence as “recklessly refused to investigate” — the minimum standard of conduct in this Circuit to bar recovery • — the trial court defined it as “intentionally [refused] to investigate.” It is difficult to understand appellants’ quarrel with this charge in that the standard expressed was both stricter and more favorable to their position than was required by law. If error was committed, it inured to their benefit. The claim that the interrogatory propounded on the subject of due diligence was misleading and defective is also groundless. The interrogatory" }, { "docid": "18344178", "title": "", "text": "the analysis of due diligence merits mention. Since the decision in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), to recover damages under section 10(b) and Rule 10b-5, a plaintiff must show the defendant acted with scienter, defined as “intent to deceive, manipulate, or defraud.” Id. at 193 n.12, 96 S.Ct. at 1381 n.12. This decision prompted some circuits to reexamine that element of a 10b-5 action which requires that plaintiff’s reliance on the defendant’s statements be justifiable, i.e. that plaintiff acted with due diligence in accepting and relying on the representations of the defendant. See, e.g., Dupuy v. Dupuy, 551 F.2d 1005, 1014, 1017 (5th Cir.), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d 197 (1977) (White, J., dissenting). This standard generally meant a plaintiff who was negligent in relying on the defendant’s statements could not recover. Id. 551 F.2d at 1017. When a negligence standard for plaintiff was coupled with a scienter standard for defendant, a 10b-5 action took on an asymmetrical appearance unappealing to potential plaintiffs. Holdsworth v. Strong, 545 F.2d 687, 692-693 (10th Cir. 1976), cert. denied, 430 U.S. 115, 97 S.Ct. 1600, 51 L.Ed.2d 805 (1977). “If the negligence standard were being applied it might be appropriate to allow due diligence to be exacted from the victim, but where liability of the defendant requires proof of intentional misconduct, the exaction of a due diligence standard from the plaintiff becomes irrational and unrelated.” Id. at 692. To remedy this imbalance, some circuits have held that a plaintiff falls short of the due diligence standard only if he “intentionally refused to investigate ‘in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’ ” Dupuy, 551 F.2d at 1020 (quoting W. Prosser, Law of Torts § 34 at 185 (4th ed. 1971)). At least one court has applied this relaxed standard of due diligence in the context of the commencement and tolling of the" }, { "docid": "22895543", "title": "", "text": "8.4(652) (1971). Indeed, because most cases before Ernst did not require scienter, they can be read consistently with the distinction between intentional and negligent misrepresentation cases. We consider that Ernst & Ernst v. Hochfelder prompts a change in the law of due diligence, as it is applicable in 10b-5 cases. Both tort law and federal securities policy support imposing on the plaintiff only a standard of care not exceeding that imposed on the defendant. Although the “scienter” requirement may still be unsettled, the Supreme Court has imposed on defendants a standard not stricter than recklessness. In this case, then, the question should not be whether Milton acted unreasonably by failing to investigate the condition of Lori Corporation. Instead, the Court should ask whether Milton intentionally refused to investigate “in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” W. Prosser, § 34 at 185 (1971). 4. The Due Diligence of Milton. After reviewing the voluminous trial record, we hold that a reasonable jury could find that Milton did not act recklessly when he sold his stock. The district court’s instructions were, as we view them, more favorable to Clarence than to Milton. The district court instructed the jury that to recover Milton must prove that he acted reasonably, an instruction consistent with previous holdings of this. Court. The jury found that Milton had met this burden of proof — that he had acted reasonably; “with due diii- gence” (the language of the court’s interrogatory). After Ernst, the jury did not have to decide whether Milton acted negligently, but only that he did not act recklessly. We reinstate the jury’s verdict, then, because there is sufficient evidence in the record to support a holding that Milton did not have knowledge of the risk of Clarence’s forming the partnership with Monteleone and obtaining financing for the hotel. There is also sufficient evidence to support a jury conclusion that Milton did not act in intentional disregard of whether" }, { "docid": "1978104", "title": "", "text": "the previous day, less expenses incurred in buying, selling and managing its business. “V” represents the Fund’s net asset value as of the close of business of the New York Stock Exchange on the preceding day, or the total dollar value of its outstanding shares. The number 36,500 is used to generate an annualized yield. . “Current yield” did not include capital adjustments resulting from fluctuations in interest rates because inclusion of such nonrecurring factors in the daily quote would severely distort the yield reporting when annualized. The historical yields, however, did include unrealized appreciation and depreciation. Inclusion of appreciation and depreciation in historical quotations is more appropriate than in daily yield quotations because the fluctuations are smoothed in the averaging process and tend to project a more typical yield. . Mr. William E. Donaghue, Registered Financial Adviser with the Securities and Exchange Commission; publisher of “Donaghue’s Money Fund Report,” a review of money market funds for investors. . In Dupuy v. Dupuy, 551 F.2d 1005 (5th Cir.), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d 197 (1977), this Court held that due diligence by the plaintiff was established unless the investor “refused to investigate ‘in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’ ” 551 F.2d at 1020, citing W. Prosser, § 34 at 185 (1971). . Rule 11 gives the district court the authority to impose sanctions, including attorney’s fees, against a party who submits pleadings without a reasonable belief that the arguments are supported by fact and law. Section 1927 similarly allows the district court to impose the burden of attorney’s fees on an attorney who “unreasonably and vexatiously” complicates legal proceedings." }, { "docid": "17142601", "title": "", "text": "liability claim are well established: The plaintiff must prove (1) a misstatement or omission (2) of material fact (3) occurring in connection with the purchase or sale of a security, that (4) was made with scienter and (5) upon which the plaintiff justifiably relied, (6) and that proximately caused injury to the plaintiff. Rubinstein v. Collins, 20 F.3d 160, 166 (5th Cir.1994). Wyshak argues that he should not have been found liable under federal securities law because (1) the notes given as security for the funds advanced by TCL were not “securities”; (2) only a “purchaser” or “seller” of a security may assert a claim under the federal rule and TCL was neither; (3) neither he nor Eggleston made any representations to TCL in connection with the transaction, so TCL could not have justifiably relied on any; (4) Wyshak, Eggleston, and his firm had no “scienter” that the'GNMAs were not authentic; and (5) while Wyshak, Eggleston, and his firm’s conduct may have abetted a fraudulent scheme, they should not be held liable under 10b-5 because their actions, did not amount to knowing or intentional misconduct. To determine whether a note is a security within the meaning of the Securities Acts, the Supreme Court has established the “family resemblance” test. Reves v. Ernst & Young, 494 U.S. 56, 65-67, 110 S.Ct. 945, 951-52, 108 L.Ed.2d 47 (1990). A note is presumed to be a “security,” and that presumption may be preliminarily rebutted by a showing that it more closely resembles the “family” of instruments found not to be securities. Reves, 494 U.S. at 67, 110 S.Ct. at 952. That family includes the note delivered in consumer financing, the note secured by a mortgage on a home, the short-term note secured by a lien on a small business or some of its assets, the note evidencing a “character” loan to a bank customer, short-term notes secured by an assignment of accounts receivable, or a note which simply formalizes an open-account debt incurred in the ordinary course of business. Reves, 494 U.S. at 65, 110 S.Ct. at 951. Then, if the instrument is" } ]

[ { "docid": "21588846", "title": "", "text": "the jury to consider whether the product was unreasonably dangerous in light of the risks and benefits. The use of the word “may” does not realistically undercut the imperative of the entire instruction. In addition, both the trial court and Squibb’s counsel appeared to believe that the jury was required to balance the risks against the benefits. In context, we do not believe that the use of the word “may” renders the instruction inconsistent with the requirements of Rhode Island law. More importantly, Squibb never objected to this aspect of the instruction. While Squibb did object to the risk-benefit test, that objection did not go to any specific problem with the instruction as given, but rather to the application by a jury of a balancing test at all. Fed.R.Civ.P. 51 requires that the grounds for objection be clearly stated after the charge to give the judge an opportunity to correct his error. See, e.g., Linn v. Andover Newton Theological School, Inc., 874 F.2d 1, 5 (1st Cir.1989). Squibb has cited cases which indicate that when a rule of law has undergone substantial change, a court will order a new trial despite the failure of counsel to object. See Saunders v. State of Rhode Island, 781 F.2d 81 (1st Cir.1984); Hegger v. Green, 646 F.2d 22 (2d Cir.1981). As in the instant case, the court in Saunders certified three novel questions to the Rhode Island Supreme Court after the return of the jury-verdict. Despite the absence of an objection, this court in Saunders stated that “in light of the unusual certification procedure used, the basis for objection only became known long after the charge was given.” Saunders, 731 F.2d at 85. But in Saunders, unlike in this case, the Rhode Island court imposed a new requirement for the plaintiff to prove in a prison negligence action. Neither the district court nor the parties had contemplated the element. In the case at bar, rather than imposing a radically different legal requirement, the Castrignano court confirmed that the trial court had accurately interpreted Rhode Island law by applying comment k on a case-by-case" } ]

[ { "docid": "7847551", "title": "", "text": "wearing his seatbelt to conclude that the negligent design was not the proximate cause of Eduardo’s injuries. Hyundai failed to properly preserve this argument. Under Fed.R.Civ.P. 51, a party wishing to object to an instruction must raise the objection “before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” Our interpretation of Rule 51 is quite strict. See Gray v. Genlyte Group, Inc., 289 F.3d 128, 134 (1st Cir.2002), cert. denied, 537 U.S. 1001, 123 S.Ct. 485, 154 L.Ed.2d 397 (2002). It is well-settled in this Circuit that “[e]ven if the initial request for an instruction is made in detail, the requesting party must object again after the instructions are given but before the jury retires for deliberations.” Foley v. Commonwealth Elec. Co., 312 F.3d 517, 521 (1st Cir.2002); see Gray, 289 F.3d at 134; Smith v. Mass. Inst. of Tech., 877 F.2d 1106, 1109 (1st Cir.1989). It is also well-settled “that an objection on one ground does not preserve appellate review of a different ground.” Negron v. Caleb Brett U.S.A., Inc., 212 F.3d 666, 672 (1st Cir.2000); see Cambridge Plating Co. v. Napco, Inc., 85 F.3d 752, 766 (1st Cir.1996). Prior to trial, Hyundai requested an instruction informing the jury, inter alia, that it could consider the evidence that Eduardo was not wearing his seatbelt “[i]n deciding whether the allegedly defective airbag was the proximate cause of [his] death.” The district court refused to give this instruction and instead instructed the jury that it could only consider the evidence that Eduardo was not wearing his seatbelt on the issue of superseding cause. After the court instructed the jury and before the jury retired to deliberate, Hyundai objected to this instruction. However, at that time, Hyundai objected only on the ground that the jury should have been instructed that evidence of Eduardo’s failure to wear his seatbelt could be considered in deciding if the So nata’s design was crashworthy. This was not sufficient. When an objection to a jury instruction is forfeited, we apply the plain error standard. See Gray," }, { "docid": "14934497", "title": "", "text": "entitled to a new trial on the privacy claim. Its belated claim fails. The record clearly discloses that American did not raise a proper objection to the jury charge as required by Fed.R.Civ.P. 51. “No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” Fed.R.Civ.P. 51. Our cases state that objections to jury instructions are to be made after the charge has been delivered to the jury. Poulin v. Greer, 18 F.3d 979, 982 (1st Cir.1994); McGrath v. Spirito, 733 F.2d 967, 968 (1st Cir.1984). After the jury charge was given below, the following colloquy occurred: [The Court]: Please. And to the charge, we’ll discuss that up here. [Plaintiffs counsel]: No problem with the charge. [Defendant’s counsel]: I have no problem with the charge. [The Court]: Without prejudice of your disagreement over the cutoff date, as [a] matter of law, you have no problem with the charge? [Defendant’s counsel]: That’s correct. We have stated repeatedly that ‘“[a] trial court’s statement after the charge that objections made prior to it will be saved does not absolve an attorney from following the strictures of the rule. Objections cannot be carried forward. The rule is binding on both the court and attorneys and neither can circumvent it.’ ” Poulin, 18 F.3d at 982 (finding that post-charge sidebar conference during which court began by stating to counsel — “Okay. First, in addition to any objections previously made, do you have an objection you wish to make as to the general content of the instructions at this time?”— failed to preserve for appeal a claim previously raised, where trial counsel failed to reiterate objection after the jury charge) (quoting McGrath, 733 F.2d at 969); see also Elgabri v. Lekas, 964 F.2d 1255, 1259 (1st Cir.1992) (“It is the obligation of trial counsel, as well as the trial court, to comply with the strict requirements of the Rule.”). American failed to object to the instruction at" }, { "docid": "18744111", "title": "", "text": "and manufactured helmet, you must return a verdict for the defendant. (Defendant’s request for instruction number 9.) Appellant alleges that the court not only did not charge as requested, but did not charge at all on the concepts of general cause, concurrent cause or superseding cause. Neither did the court mention or define the term “proximate or legal cause” for the jury. Furthermore, appellant complains that the “boilerplate” instructions given to the jury bore no relationship to the facts of the case. It is not clear from the record whether the trial court was sufficiently aware of the scope of appellant’s objection based on its not giving the requested instruction on proximate cause as well as of the objection to the form of the charge. The specific grounds of these objections were not stated for the record after delivery of the charge to the jury and no transcript of a conference held in chambers prior to the charge is available. Rule 51, Fed.R.Civ.Proc. is clear that “[n]o party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objections.” (Emphasis ours.) These objections, and the grounds therefor must be made after the charge, not before. See McGrath v. Spirito, 733 F.2d 967, 968 (1st Cir.1984), Carrillo v. Sameit Westbulk, 514 F.2d 1214, 1219 (1st Cir.), cert. denied 423 U.S. 1014, 96 S.Ct. 445, 46 L.Ed.2d 385 (1975), Dunn v. St. Louis-San Francisco Railway, 370 F.2d 681, 683-684 (10th Cir. 1966). Departure from this procedure not only frustrates the purpose of the rule, which is to give the trial judge an opportunity to correct any errors before it is too late, Gay v. P.K. Lindsay Co., 666 F.2d 710, 712 (1st Cir.1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2240, 72 L.Ed.2d 849 (1982), but also impedes this court in making a fair determination on whether the judge was in fact given such an opportunity. Although “[i]n our discretion we may overlook insufficient" }, { "docid": "14934496", "title": "", "text": "first time, that there was insufficient evidence of a privacy violation within the one-year limitations period. The district court denied the motion, ruling that the one-year limitations period on the privacy claim had been tolled, on May 11, 1992, by the filing of an administrative charge with the Puerto Rico Antidiscrimi-nation Unit, thereby rendering actionable all conduct after May 11, 1991. Later, in an effort to minimize confusion, the district court instructed the jury to consider only evidence of conduct occurring on and after July 15, 1991, explaining that evidence of earlier events could be considered “as background evidence only ... [and] cannot be the object of recovery.” After the jury returned its verdict for Kerr on the privacy claim, and the district court entered judgment, American renewed its Rule 50 motion, which neither challenged the one-year limitations period nor the district court instruction on the purposes for which the jury could consider Kerr’s evidence relating to the privacy violations. American only now contends that the jury instruction was erroneous and, therefore, that it is entitled to a new trial on the privacy claim. Its belated claim fails. The record clearly discloses that American did not raise a proper objection to the jury charge as required by Fed.R.Civ.P. 51. “No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” Fed.R.Civ.P. 51. Our cases state that objections to jury instructions are to be made after the charge has been delivered to the jury. Poulin v. Greer, 18 F.3d 979, 982 (1st Cir.1994); McGrath v. Spirito, 733 F.2d 967, 968 (1st Cir.1984). After the jury charge was given below, the following colloquy occurred: [The Court]: Please. And to the charge, we’ll discuss that up here. [Plaintiffs counsel]: No problem with the charge. [Defendant’s counsel]: I have no problem with the charge. [The Court]: Without prejudice of your disagreement over the cutoff date, as [a] matter of law, you have no problem with" }, { "docid": "4264236", "title": "", "text": "expenses incurred in attempting to resolve the original dispute with Raytheon. Instructions to the Jury Raytheon also assigns as error the district judge’s failure to instruct the jury that the inability of other firms to obtain comparable results in manufacturing ZnS/cvd and ZnSe/cvd is evidence that tends to show the existence of trade secrets in Raytheon’s process and machinery. As indicated previously, the inability of competitors to reproduce a product or process tends to prove the existence of trade secrets. See, e.g., Curtiss-Wright Corp., supra, 381 Mass, at 11, 407 N.E.2d at 326, Eastern Marble, supra, 372 Mass, at 839, 364 N.E.2d at 802; Junker v. Plummer, 320 Mass. 76, 78, 67 N.E.2d 667, 668 (1946). Nevertheless, counsel for Raytheon did not properly object to the omission of this instruction, and, therefore, pursuant to Rule 51 of the Federal Rules of Civil Procedure, the failure to include the requested instruction cannot constitute reversible error. Rule 51 in pertinent part provides: No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating dis tinctly the matter to which he objects and the grounds of his objection. Fed.R.Civ.P. 51. “We have held that Rule 51 means what it says: the grounds for objection must be stated ‘distinctly’ after the charge to give the judge an opportunity to correct his error.” Jordan v. United States Lines, Inc., 738 F.2d 48, 51 (1st Cir.1984). See Ouimette v. E.F. Hutton & Co., Inc., 740 F.2d 72, 75-76 (1st Cir.1984); McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir.1984). Reading a list of the numbers of the requested instructions is not sufficient to preserve an objection under Rule 51. See Charles A. Wright, Inc. v. F.D. Rich Co., 354 F.2d 710, 713 (1st Cir.), cert. denied, 385 U.S. 890, 87 S.Ct. 14, 17 L.Ed.2d 122 (1966). What occurred in this case illustrates the necessity of requiring a strict interpretation and adherence to this rule. In this case, the trial judge indicated to counsel at a conference after the close" }, { "docid": "21625966", "title": "", "text": "the jury first retired, even though the district judge warned that specific objections would be necessary to preserve the objections; the only debatable case is discussed below. As for the requested supplemental instructions, the district court after giving its supplemental instruction asked for objections. Gray’s counsel responded, “Just simply the ones I have already stated, your Honor.” This is not enough. The governing rule provides that a party cannot assign as error the giving of or failure to give an instruction “unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” Fed.R.Civ.P. 51 (emphasis added). “Objection” means to the instruction as given; thus, even if the initial request is made in detail, the party who seeks but did not get the instruction must object again after the instructions are given but before the jury retires for deliberations. Smith v. Mass. Inst. of Tech., 877 F.2d 1106, 1109 (1st Cir.1989). Further, it is not enough for counsel in renewing an objection merely to refer back generically to objections made before the charge. This may seem harsh, but it accords with the language of Rule 51, which requires that the objection state “distinctly the matter objected to and the grounds of the objection,” Fed.R.Civ.P. 51, and we are in any event bound by a long line of precedents. See note 1, above. Further, in many instances, the judge will not know just what it is in the instructions as given that has not satisfied counsel. It is easier to have a flat rule than try to decide case by case when the judge should have been warned more “distinctly” as to the concern, although there will always remain some gray-area cases posing hard questions. See Wilson, 150 F.3d at 7-8. Despite the unqualified language of Rule 51, this court has allowed appellate review for “plain error” despite the lack of a proper objection, but plain error is “confined to the exceptional case.” Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1st Cir.1991) (internal quotations omitted). We have" }, { "docid": "4264237", "title": "", "text": "unless he objects thereto before the jury retires to consider its verdict, stating dis tinctly the matter to which he objects and the grounds of his objection. Fed.R.Civ.P. 51. “We have held that Rule 51 means what it says: the grounds for objection must be stated ‘distinctly’ after the charge to give the judge an opportunity to correct his error.” Jordan v. United States Lines, Inc., 738 F.2d 48, 51 (1st Cir.1984). See Ouimette v. E.F. Hutton & Co., Inc., 740 F.2d 72, 75-76 (1st Cir.1984); McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir.1984). Reading a list of the numbers of the requested instructions is not sufficient to preserve an objection under Rule 51. See Charles A. Wright, Inc. v. F.D. Rich Co., 354 F.2d 710, 713 (1st Cir.), cert. denied, 385 U.S. 890, 87 S.Ct. 14, 17 L.Ed.2d 122 (1966). What occurred in this case illustrates the necessity of requiring a strict interpretation and adherence to this rule. In this case, the trial judge indicated to counsel at a conference after the close of evidence that he intended to give Raytheon’s requested instruction, number 12, over the plaintiffs’ objection. The next day, however, the district judge did not mention this instruction in instructing the jury. When the district judge finished instructing the jury, he asked counsel for their objections. Counsel for Raytheon objected to, among other things, the court’s failure to give requested instructions “12, 16, 17, 18, 19, 20, and 21 [which] refer to the duty of an employee not to disclose, irrespective of the trade secret category ... confidential information.” It is apparent that this objection did not state “distinctly” the matter to which counsel objected or “the grounds of his objection.” Indeed, it indicated a basis entirely unrelated to its present objection. Thus, it is impossible for this Court on appeal to know whether the district judge reconsidered his original decision that this instruction was proper, or simply omitted this instruction through inadvertence. By failing to state distinctly the grounds of his objection, as required by Rule 51, counsel for Raytheon deprived the district judge" }, { "docid": "16680639", "title": "", "text": "in his capacity as Chairman of the City Council was acting pursuant to Rule 29G or trying to control the content of McGrath’s speech by ordering her ejected from a City Council meeting before she had finished speaking. Appellant raises two issues on appeal: that the district court erred in its instruction to the jury relative to the interplay of plaintiff’s first amendment rights and defendant’s authority under Rule 29G; and that the district court erred in failing to make a preliminary determination of the constitutionality of Rule 29G. Appellant’s jury instruction objection was lost because he failed to follow the requirements of Federal Rule of Civil Procedure 51: Rule 51. Instructions to Jury: Objection At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. [Emphasis added.] We have held that the rule requires that the objection to jury instructions be made after the charge, not before. Carrillo v. Sameit Westbulk, 514 F.2d 1214, 1219 (1st Cir.), cert. denied, 423 U.S. 1014, 96 S.Ct. 445, 46 L.Ed.2d 385 (1975). The reason for requiring that objections to instructions be made after the charge and that they state distinctly the matter to which a party objects and the grounds of the objection is to give the trial judge an opportunity to correct any errors before it is too late. Gay v. P.K. Lindsay Co., Inc., 666 F.2d 710, 712 (1st Cir.1981), cert. denied, 456 U.S." }, { "docid": "16680640", "title": "", "text": "the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. [Emphasis added.] We have held that the rule requires that the objection to jury instructions be made after the charge, not before. Carrillo v. Sameit Westbulk, 514 F.2d 1214, 1219 (1st Cir.), cert. denied, 423 U.S. 1014, 96 S.Ct. 445, 46 L.Ed.2d 385 (1975). The reason for requiring that objections to instructions be made after the charge and that they state distinctly the matter to which a party objects and the grounds of the objection is to give the trial judge an opportunity to correct any errors before it is too late. Gay v. P.K. Lindsay Co., Inc., 666 F.2d 710, 712 (1st Cir.1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2240, 72 L.Ed.2d 849 (1982). The record makes it clear that no objection was made by appellant after the charge. The court stated, “I will preserve any objections you have at this point on the instructions. Anything further?” Defense counsel responded, “No.” A trial court’s statement after the charge that objections made prior to it will be saved does not absolve an attorney from following the strictures of the rule. Objections cannot be carried forward. The rule is binding on both the court and attorneys and neither can circumvent it. In the exercise of our discretion we may, in compelling circumstances, overlook failure to comply with the rule, “but a party takes his chances and cannot rely on an assurance by the district court that his rights are saved.” Carrillo v. Sameit Westbulk, 514 F.2d at 1219. There is no reason here to overlook appellant’s failure to follow the rule. It is true that prior to the charge there was a general discussion of the proposed instructions and defense counsel did object" }, { "docid": "18851786", "title": "", "text": "waived the right to press an objection on appeal. See Fed.R.Civ.P. 51 (“No party may assign as error the giving [of] or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.”); see also Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1st Cir.1991) (failure to raise an objection to the charge when and as required by Civil Rule 51 works a waiver of the objection); Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.) (same), cert. denied, 488 U.S. 955, 109 S.Ct. 392, 102 L.Ed.2d 381 (1988). To be sure, the appellant seeks to avoid the preclusive force of Rule 51 by arguing that the error was “fundamental.” But simply labelling an error as fundamental does not make it so. We have recently pointed out that “[t]he plain error standard, high in any event, is near its zenith in the Rule 51 milieu.” Toscano, 934 F.2d at 385 (internal citations omitted). In this instance, the court’s illustration, if erroneous at all — a matter which we need not reach— surely did not “seriously affect[ ] the fairness, integrity, or public reputation of judicial proceedings.” 9 C. Wright & A. Miller, Federal Profetice & Procedure § 2558, at 675 (1971). Thus, plain error was plainly absent. See, e.g., Toscano, 934 F.2d at 385; Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 568 (1st Cir.1989); Smith v. Massachusetts Inst. of Technology, 877 F.2d 1106, 1110 (1st Cir.), cert. denied, — U.S. -, 110 S.Ct. 406, 107 L.Ed.2d 372 (1989); Wells, 850 F.2d at 809; Almonte v. National Union Fire Ins. Co., 787 F.2d 763, 769 (1st Cir.1986); Morris v. Travisono, 528 F.2d 856, 859 (1st Cir.1976). IV The defendant has asked that we award double costs and counsel fees. “If a court of appeals shall determine that an appeal is frivolous, it may award just damages and ... double costs to the appellee.” Fed.R.App.P. 38. Rule 38 is aimed at “discouraging] litigants from wasting the" }, { "docid": "12060917", "title": "", "text": "negligence questions, the jury found that defendant was negligent in the design or manufacture of the machine and in the failure to provide adequate warnings or instructions about its use. It also found that the conduct of plaintiff’s employer “either standing alone or combined with any negligence of the plaintiff was the sole proximate cause of Phav’s injuries.” In its answers to the breach of warranty questions the jury unequivocally found defendant liable. We do not know whether the jury was confused. But we do know that defendant has waived its right to assert that the jury questions were a source of any confusion. In its appellate brief defendant argued that the district court erred in formulating the special questions, implying that we should reverse on that ground alone. At oral argument, defendant glossed over this issue, focussing instead on its claim that the jury’s answers to the special questions indicated a compromise verdict. This claim, if accepted, would require reversal and a retrial on all the issues. As plaintiff points out, there is an understandable reason why defendant switched from a legal attack on the jury questions to an attempt to use them as evidence of confusion: the jury questions issue was not preserved below and is not properly before us. Fed.R.Civ.P. 51 states: “No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” This court has consistently construed Rule 51 to require that objections to the instructions be raised after the charge to the jury, in order to give the judge an opportunity to correct the error. See, e.g., Castrignano v. E.R. Squibb & Sons, Inc., 900 F.2d 455, 460 (1st Cir.1990); Smith v. Massachusetts Inst. of Tech., 877 F.2d 1106, 1109 (1st Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 406, 107 L.Ed.2d 372 (1989). The rule applies to special interrogatories as well as verbal instructions. See Anderson v. Cryovac, 862 F.2d 910, 918 (1st Cir.1988) (“[I]t" }, { "docid": "12088385", "title": "", "text": "the objection pursuant to Federal Rule of Civil Procecure 51. See, e.g., Brown v. Freedman Baking Co., Inc., 810 F.2d 6, 9 (1st Cir.1987); Coy v. Simpson Marine Safety Equipment, Inc., 787 F.2d 19, 26 (1st Cir.1986); Emery-Waterhouse Co. v. Rhode Island Hosp. Trust Nat’l Bank, 757 F.2d 399, 411 (1st Cir.1985); McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir.1984); Monomoy Fisheries, Inc. v. Bruno & Stillman Yacht Co., 625 F.2d 1034, 1036 (1st Cir.1980); Carrillo v. Sameit Westbulk, 514 F.2d 1214, 1219 (1st Cir.1975); United States v. Taglianetti, 456 F.2d 1055, 1056-57 (1st Cir. 1972); Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970, 976 (1st Cir.1972); Dunn v. St. Louis-San Francisco Ry. Co., 370 F.2d 681 (10th Cir.1966) (Aldrich, J., sitting by designation); Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir.1955). Wells Real Estate v. Greater Lowell Bd. of Realtors,, 850 F.2d 803, 809 (1st Cir.) (footnote omitted), cert. denied, — U.S. -, 109 S.Ct. 892, 102 L.Ed.2d 381 (1988). The reason for “firm adherence to Rule 51 is to give the trial court an ‘opportunity to correct any errors before it is too late.’ ” Kelley v. Schlumberger Technology Corp., 849 F.2d 41, 44 (1st Cir.1988) (quoting Brown v. Freedman Baking Co., 810 F.2d 6, 9 (1st Cir.1987)). The failure of plaintiff's counsel to be present when the third set of supplementary instructions was given to the jury constituted a waiver of any objections to the instructions. And the waiver could not be cured by telephonic objection to the proposed instruction beforehand. Supplementary instructions in response to jury questions may be just as important as the initial charge, if not more so. It is the duty of counsel to be either in the courtroom during jury deliberations or available on short notice, in the event a problem arises. A jury case is not over until the verdict is finally returned. If supplementary instructions become necessary and counsel is not present, this constitutes a waiver of any objections to the supplemental instruction. Lawyers cannot be compelled to be present during jury deliberations but if they choose to" }, { "docid": "3784239", "title": "", "text": "of the instructions at this time?” Plaintiffs’ counsel replied, “No.” Rule 51 of the Federal Rules of Civil Procedure provides that, “[n]o party may assign as error the giving or failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict....” ‘We have construed the Rule’s requirement that a party must object ‘before the jury retires to consider its verdict’ to mean that the objection must be made after the instructions are given to the jury.” Smith v. Massachusetts Inst. of Technology, 877 F.2d 1106 (1st Cir.), cert. denied, 493 U.S. 965, 110 S.Ct. 406, 107 L.Ed.2d 372 (1989); see Phav v. Trueblood, Inc., 915 F.2d 764, 769 (1st Cir.1990); McGrath v. Spirito, 733 F.2d 967, 968 (1st Cir.1984). Even if plaintiffs’ requested instructions had been proper, counsel’s failure to object to their omission after the charge constitutes waiver of the objection. See Smith, 877 F.2d at 1109; Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.) (collecting cases), cert. denied, 488 U.S. 955, 109 S.Ct. 392, 102 L.Ed.2d 381 (1988). The record here is clear: no objection was made by plaintiffs after the charge. The district court’s post-charge indication that the parties’ prior objections would be preserved is of no help to plaintiffs. “A trial court’s statement after the charge that objections made prior to it will be saved does not absolve an attorney from following the strictures of the rule. Objections cannot be carried forward. The rule is binding on both the court and attorneys and neither can circumvent it.” McGrath, 733 F.2d at 969; see Elgabri v. Lekas, 964 F.2d 1255, 1259 (1st Cir.1992) (“It is the obligation of trial counsel, as well as the trial court, to comply with the strict requirements of the Rule.”). Because of plaintiffs’ failure to comply with Rule 51, we review the trial court’s instructions only for plain error. The “plain error” rule “ ‘should be applied sparingly and only in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice.’ ” Wells Real" }, { "docid": "21625965", "title": "", "text": "(3). Based on the verdict form, a “no” answer to question (3) ended the case in defendant’s favor and spared the jury from having to consider the company’s knowledge of the harassment, the adequacy of steps taken to prevent it and the amount of damages to be awarded. This appeal followed. On appeal, five of the eight claims of error advanced by Gray concern the failure to give instructions or errors in the instructions that were given. Such claims are reviewed de novo (e.g., failure to give an instruction) or under an abuse of discretion standard (e.g., court’s choice of language). Wilson v. Maritime Overseas Corp., 150 F.3d 1, 10 & n. 7 (1st Cir.1998). However, casting a shadow over Gray’s claims is Genlyte’s contention that none of the objections to the instructions was adequately preserved, so they are reviewable only for plain error. We agree with Gen-lyte. Insofar as the initial instructions are concerned, none of the errors or omissions now objected to was specifically identified by Gray’s counsel after the instructions and before the jury first retired, even though the district judge warned that specific objections would be necessary to preserve the objections; the only debatable case is discussed below. As for the requested supplemental instructions, the district court after giving its supplemental instruction asked for objections. Gray’s counsel responded, “Just simply the ones I have already stated, your Honor.” This is not enough. The governing rule provides that a party cannot assign as error the giving of or failure to give an instruction “unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” Fed.R.Civ.P. 51 (emphasis added). “Objection” means to the instruction as given; thus, even if the initial request is made in detail, the party who seeks but did not get the instruction must object again after the instructions are given but before the jury retires for deliberations. Smith v. Mass. Inst. of Tech., 877 F.2d 1106, 1109 (1st Cir.1989). Further, it is not enough for counsel in renewing an objection" }, { "docid": "3784238", "title": "", "text": "court declined to instruct the jury that it could draw an adverse inference from the fact that Greer did not testify at trial. Greer lived beyond the subpoena power of the court, and chose not to attend the trial. His deposition testimony was entered into evidence. In response, defendants contend that the failure to give plaintiffs’ requested instructions was not erroneous, but, in any event, plaintiffs waived their challenges by failing to comply with Fed.R.Civ.P. 51. Before the district court charged the jury, it received proposed instructions from the parties and held a pre-charge conference. At the conference, the court informed the parties which portions of their proposed instructions it would read. Plaintiffs duly stated their objections to the court’s omission of various portions of their proposed charge, including those portions at issue on this appeal. After the court instructed the jury, the judge called counsel over to the sidebar and asked: “Okay. First, in addition to any objections previously made, do you have an objection you wish to make as to the general content of the instructions at this time?” Plaintiffs’ counsel replied, “No.” Rule 51 of the Federal Rules of Civil Procedure provides that, “[n]o party may assign as error the giving or failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict....” ‘We have construed the Rule’s requirement that a party must object ‘before the jury retires to consider its verdict’ to mean that the objection must be made after the instructions are given to the jury.” Smith v. Massachusetts Inst. of Technology, 877 F.2d 1106 (1st Cir.), cert. denied, 493 U.S. 965, 110 S.Ct. 406, 107 L.Ed.2d 372 (1989); see Phav v. Trueblood, Inc., 915 F.2d 764, 769 (1st Cir.1990); McGrath v. Spirito, 733 F.2d 967, 968 (1st Cir.1984). Even if plaintiffs’ requested instructions had been proper, counsel’s failure to object to their omission after the charge constitutes waiver of the objection. See Smith, 877 F.2d at 1109; Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.) (collecting cases), cert. denied," }, { "docid": "3883925", "title": "", "text": "COURT: I will tell them the owner doesn’t have to know of the unseaworthiness, but I won’t say that (indicating). END OF CONFERENCE AT THE BENCH THE COURT: I have been asked to supplement the instructions to you briefly by telling you that if the plaintiff proves that there was an unseaworthiness condition aboard the vessel and that caused his injury he does not have to prove the owner of the vessel knew the unseaworthiness condition existed at the time of the injury. MR. ABROMOVITZ: Thank you, your Honor. This objection does not meet the requirement of Fed.R.Civ.P. 51 which states: No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds for his objection. We note that plaintiff made a later objection, before the judge, answering a question from the jury, defined “unseaworthiness” a second time. But this objection also failed to comply with Rule 51. We have held that Rule 51 means what it says: the grounds for objection must be stated “distinctly” after the charge to give the judge an opportunity to correct his error. McGrath v. Spirito, 733 F.2d 967 (1st Cir., 1984); Gay v. P.K. Lindsay Co., Inc., 666 F.2d 710, 712 (1st Cir.1981). Since appellant did not comply with this rule (and since we see no “plain error”), we find no basis for reversal in the instructions. The judgment of the district court is Affirmed." }, { "docid": "18744112", "title": "", "text": "the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objections.” (Emphasis ours.) These objections, and the grounds therefor must be made after the charge, not before. See McGrath v. Spirito, 733 F.2d 967, 968 (1st Cir.1984), Carrillo v. Sameit Westbulk, 514 F.2d 1214, 1219 (1st Cir.), cert. denied 423 U.S. 1014, 96 S.Ct. 445, 46 L.Ed.2d 385 (1975), Dunn v. St. Louis-San Francisco Railway, 370 F.2d 681, 683-684 (10th Cir. 1966). Departure from this procedure not only frustrates the purpose of the rule, which is to give the trial judge an opportunity to correct any errors before it is too late, Gay v. P.K. Lindsay Co., 666 F.2d 710, 712 (1st Cir.1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2240, 72 L.Ed.2d 849 (1982), but also impedes this court in making a fair determination on whether the judge was in fact given such an opportunity. Although “[i]n our discretion we may overlook insufficient compliance with the rule,” Carrillo v. Sameit Westbulk, 514 F.2d 1214 (citing Bouley v. Continental Casualty Co., 454 F.2d 85 (1st Cir.1972), we may do so “only in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice.” Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir.1966). Only where the error in the instructions was committed and “has seriously affected the fairness, integrity or public reputation of judicial proceedings” may we reverse a judgment despite failure to comply with Rule 51. Morris v. Travisono, 528 F.2d 856, 859 (1st Cir.1976) (quoting from Wright and Miller, Federal Practice and Procedure: Civil Section 2558, at 675 (1977)). We have carefully reviewed the record of this case and find that no such error was committed. The requested instruction was confusing and, insofar as it dealt with “enhanced injuries,” irrelevant to the case. Furthermore, we find that the court adequately covered the causation issue. The court correctly instructed the jury on plaintiffs burden of proof on its two causes of action, namely, one brought under an" }, { "docid": "23401414", "title": "", "text": "(only defendant’s business generally need affect interstate commerce). It is this standard that appellants urge on us here, and we agree that it would have been proper to instruct the jury in such a manner. Unfortunately for plaintiff, however, Wells’ attorneys, did not ask for the “practical economics” instruction at the charge conference prior to closing arguments. Instead, counsel proffered precisely the interpretation of McLain that we rejected in Cordova & Simonpietri. App. 3481-83. “My only point,” counsel contended, “is my understanding of McLain as well as the Cordova case is it is not the alleged illegal acts that need to be in commerce, but rather activities of the defendants generally, illegal or legal.” Id. at 3482-83. This request was properly rejected by the court, as it does not comport with our reading of McLain. See Ouimette v. E.F. Hutton & Co., Inc., 740 F.2d 72, 76 (1st Cir.1984) (“a requested instruction to the jury may be correctly refused if it is improper or erroneous”). Although the court’s eventual instruction to the jury erred in the other extreme, plaintiff never asked for a correct definition of the interstate commerce element. An exception on one ground cannot serve as the basis for another, on a different ground, on appeal. Gillentine v. McKeand, 426 F.2d 717, 723 n. 19 (1st Cir.1970). Even if plaintiffs requested instruction had been proper, counsel failed to raise that objection again subsequent to the actual charge. According to a long line of precedents in this circuit, such an omission constitutes waiver of the objection pursuant to Federal Rule of Civil Procedure 51. See, e.g., Brown v. Freedman Baking Co., Inc., 810 F.2d 6, 9 (1st Cir.1987); Coy v. Simpson Marine Safety Equipment, Inc., 787 F.2d 19, 26 (1st Cir.1986); Emery-Waterhouse Co. v. Rhode Island Hosp. Trust Nat’l Bank, 757 F.2d 399, 411 (1st Cir.1985); McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir.1984); Monomoy Fisheries, Inc. v. Bruno & Stillman Yacht Co., 625 F.2d 1034, 1036 (1st Cir.1980); Carrillo v. Sameit Westbulk, 514 F.2d 1214, 1219 (1st Cir.1975); United States v. Taglianetti, 456 F.2d 1055, 1056-57 (1st" }, { "docid": "12060918", "title": "", "text": "understandable reason why defendant switched from a legal attack on the jury questions to an attempt to use them as evidence of confusion: the jury questions issue was not preserved below and is not properly before us. Fed.R.Civ.P. 51 states: “No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” This court has consistently construed Rule 51 to require that objections to the instructions be raised after the charge to the jury, in order to give the judge an opportunity to correct the error. See, e.g., Castrignano v. E.R. Squibb & Sons, Inc., 900 F.2d 455, 460 (1st Cir.1990); Smith v. Massachusetts Inst. of Tech., 877 F.2d 1106, 1109 (1st Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 406, 107 L.Ed.2d 372 (1989). The rule applies to special interrogatories as well as verbal instructions. See Anderson v. Cryovac, 862 F.2d 910, 918 (1st Cir.1988) (“[I]t is well settled that a litigant who accedes to the form of a special interrogatory will not be heard to complain after the fact.”). Here, defendant challenged the formulation of the questions when it was first shown the court’s interrogatories. It did not, however, raise any objection to the jury instructions or special questions after the charge; nor did it object to the jury’s answers as inconsistent after the verdict was read and before the jurors were dismissed. As we have repeatedly said, the use of special interrogatories puts the parties on notice that there might be an inconsistent verdict. See Austin v. Lincoln Equip. Assoc., Inc., 888 F.2d 934, 939 (1st Cir.1990). “If a slip has been made, the parties detrimentally affected must act expeditiously to cure it, not lie in wait and ask for another trial when matters turn out not to their liking.” Anderson, 862 F.2d at 918. There is an exception to this rule for “plain error” but it applies only where the error results in a “clear miscarriage of justice”" }, { "docid": "12088384", "title": "", "text": "an attorney from following the strictures of the rule. Objections cannot be carried forward. The rule is binding on both the court and attorneys and neither can circumvent it. This admonition was repeated in Ouimette v. E.F. Hutton & Co., Inc., 740 F.2d 72, 76 (1st Cir.1984). Although the court made no record reference to the telephone conversation, we accept counsel’s representation that there was one and as to what was said. But regardless of any assurances the court may have implied as to saving objections to the proposed instruction, it had no authority to allow counsel to deviate from or circumvent the rule. We have construed the Rule’s requirement that a party must object “before the jury retires to consider its verdict” to mean that the objection must be made after the instructions are given to the jury: Even if plaintiff’s requested instruction had been proper, counsel failed to raise that objection again subsequent to the actual charge. According to a long line of precedents in this circuit, such an omission constitutes waiver of the objection pursuant to Federal Rule of Civil Procecure 51. See, e.g., Brown v. Freedman Baking Co., Inc., 810 F.2d 6, 9 (1st Cir.1987); Coy v. Simpson Marine Safety Equipment, Inc., 787 F.2d 19, 26 (1st Cir.1986); Emery-Waterhouse Co. v. Rhode Island Hosp. Trust Nat’l Bank, 757 F.2d 399, 411 (1st Cir.1985); McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir.1984); Monomoy Fisheries, Inc. v. Bruno & Stillman Yacht Co., 625 F.2d 1034, 1036 (1st Cir.1980); Carrillo v. Sameit Westbulk, 514 F.2d 1214, 1219 (1st Cir.1975); United States v. Taglianetti, 456 F.2d 1055, 1056-57 (1st Cir. 1972); Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970, 976 (1st Cir.1972); Dunn v. St. Louis-San Francisco Ry. Co., 370 F.2d 681 (10th Cir.1966) (Aldrich, J., sitting by designation); Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir.1955). Wells Real Estate v. Greater Lowell Bd. of Realtors,, 850 F.2d 803, 809 (1st Cir.) (footnote omitted), cert. denied, — U.S. -, 109 S.Ct. 892, 102 L.Ed.2d 381 (1988). The reason for “firm adherence to Rule 51 is to give the" } ]

[ { "docid": "22901152", "title": "", "text": "McDonnell Douglas burden shifting analysis.” McKenzie, 92 F.3d at 483. Applying this mode of analysis, if Gleason establishes a prima facie case of retaliation, the burden of production then shifts to Mesirow to “come forward with a legitimate, non-retaliatory reason for its actions.” Id. If the defendant rebuts Gleason’s prima facie case in this manner, however, the burden shifts back to the plaintiff to demonstrate that her employer’s proffered reasons for terminating her were pretextual. Id. To establish a prima facie case of retaliation under Title VII, Gleason must establish that (1) she engaged in what our case law refers to as “statutorily protected expression” (i.e., reporting or otherwise opposing conduct prohibited by Title VII, such as sexual harassment), (2) she suffered an adverse, job-related action by her employer (in this case, termination), and (3) there is causal link between her opposition to unlawful discrimination and her termination. Id.; Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1313 (7th Cir.1989). “In order to demonstrate the ‘causal link,’ [Gleason] must demonstrate that [Mesirow] would not have taken the adverse action ‘but for’ the protected expression.” McKenzie, 92 F.3d at 483. Gleason fails to establish the first element of a prima facie case of retaliation (engaging in “protected expression”) because she never reported her allegations of sexual harassment during her term of employment with the defendant-appellee. In order to demonstrate a ease of retaliatory discharge, a plaintiff must show that she opposed conduct prohibited by Title VII, or at a minimum that she had a “reasonable belief’ she was challenging such conduct. Dey, 28 F.3d at 1458. Gleason and others did complain about Novak’s management style, in general terms. However, Gleason concedes that she did not raise the subject of sexual harassment to anyone in authority (including Novak and McGowan), and she admits that she neglected to follow the company’s procedures for reporting sexual harassment. Gleason claims in her deposition testimony that she “feels” that Novak’s objectionable behavior “encompassed ... sexual discrimination,” but unless she made these “feelings” known to her employer, they are irrelevant. Based on this record, we" } ]

[ { "docid": "22256963", "title": "", "text": "not suffering. Moreover, even assuming that any inappropriate treatment directed towards Mrs. Drake was because of her race, we cannot hold that the treatment directed towards her was so severe that it “unreasonably interfered” with her work environment. 2. The Retaliation Claims The Drakes also claim that 3M retaliated against them in a number of ways. As indicated previously, it is “an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice” by Title VII. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must demonstrate: (1) that he engaged in statutorily protected expression; (2) that he suffered an adverse action by his employer; and (3) that there was a causal link between the protected expression and the adverse action. See, e.g., McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir.1997). While we have defined adverse employment actions quite broadly, see McDonnell v. Cisneros, 84 F.3d 256, 258-59 (7th Cir.1996), it remains true that the adverse action must be material. See Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir.1996). “[N]ot everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that ‘an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.’” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996) (quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.1996)). With respect to Mr. Drake’s retaliation claim, only his comments printed in the local newspaper regarding race relations at the 3M plant can be characterized as protected expression. See Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1182 (7th Cir.1982) (noting that an employee’s good faith belief that he was opposing discrimination, even if that belief was incorrect, triggers Title VII’s retaliation provisions). Although Mr. Drake argues that the aid he gave Hawkins in filing grievances also constituted protected expression, see McDonnell, 84 F.3d at 262 (recognizing that an employee’s endeavors to obtain his employer’s compliance with Title VII" }, { "docid": "22085357", "title": "", "text": "along with all the other evidence. We thus reverse the grant of summary judgment on Dey’s sexual harassment claim and remand for trial. B. Retaliation Title VII also makes it unlawful “for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under that section, Dey must show that “(1) she engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) there is a causal link between the protected expression and the adverse action.” Holland v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1313 (7th Cir.1989); see also Rennie, 3 F.3d at 1109; Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 321 (7th Cir.1992). If she makes that showing, the burden of producing a legitimate, nondiscriminatory reason for her discharge shifts to Colt, and once it does so, Dey bears the burden of showing that Colt’s proffered reasons are pretextual and that its actual reason was discriminatory. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Johnson v. Sullivan, 945 F.2d 976, 980 (7th Cir.1991); Holland, 883 F.2d at 1313. 1. Dey’s prima facie case Colt contends that Dey did not establish a prima facie case of retaliation because she failed to show that she engaged in statutorily protected expression or that there was a causal link between that expression and her discharge. On the first question, our cases hold that an employee may engage in statutorily protected expression under section 2000e-3(a) even if the challenged practice does not actually violate Title VII. Holland, 883 F.2d at 1314; Collins v. State of Illinois, 830 F.2d 692, 702 (7th Cir.1987); Jennings v. Tinley Park Community Consolidated School Dist. No. 146, 796 F.2d 962, 967 (7th Cir.1986), cert. denied, 481 U.S. 1017, 107 S.Ct. 1895, 95 L.Ed.2d 502 (1987)." }, { "docid": "23496376", "title": "", "text": "an employer from retaliating against an employee because she has opposed any practice unlawful under Title VII. See 42 U.S.C. § 2000e-3(a). As we recently reiterated in McKenzie v. Illinois Department of Transportation, 92 F.3d 473, 482-83 (7th Cir.1996), the familiar framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), governs retaliation cases. The plaintiff must prove that (1) she engaged in statutorily protected expression or activity, (2) she suffered an adverse action by her employer, and (3) there is a causal link between the protect ed expression and the adverse action. McKenzie, 92 F.3d at 482-83; Brenner v. Brown, 36 F.3d 18 (7th Cir.1994); Reed v. Shepard, 939 F.2d 484, 492 (7th Cir.1991). Once she has done so, the employer must articulate a legitimate, non-retaliatory reason for its actions, and if it does, then the burden shifts back to the plaintiff to show that the proffered reasons are pretextual. None of this matters, however, once the case has been properly submitted to the jury and the jury has ruled for the plaintiff; at that point, the only issue is whether the jury’s verdict is against the weight of the evidence. The issue on which the State focuses to support its claim that the jury should not have been given this case is the necessary link to the employer’s action. Its objection appears to have been based on the theory that fellow employee action can never be enough to hold an employer liable under Title VII, no matter what the surrounding circumstances. If this is what the State was saying, then it is wrong. It is well established that an employer can be held liable under Title VII for sexual harassment by an employee’s co-workers if the employer had actual or constructive knowledge of the harassment and failed to address the problem adequately. See Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 446 (7th Cir.1994) (no evidence that employer had either actual or constructive notice of harassment by coworkers); Carr v. Allison Gas Turbine Division, GMC, 32 F.3d 1007, 1012" }, { "docid": "12682718", "title": "", "text": "the prima facie case of retaliation under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff must show: (1) she engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) there was a causal link between the protected expression and the adverse action. Brenner v. Brown, 36 F.3d 18, 19 (7th Cir.1994) (per curiam); Juarez v. Ameritech Mobil Communications, Inc., 957 F.2d 317, 321 (7th Cir.1992). If she makes this prima facie showing, the burden of producing a legitimate nondiscriminatory reason for her firing shifts to Gerhardt. Once Gerhardt meets this burden, Alexander bears the burden of showing that Gerhardt’s reasons are pretextual and that its actual reason was discriminatory. Dey v. Colt Const. & Development Co., 28 F.3d 1446, 1457 (7th Cir.1994), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). On review, this Court will not overturn the district court’s findings regarding the retaliation claims unless those findings are clearly erroneous. Anderson v. Bessemer City, 470 U.S. 564, 573, 84 L.Ed.2d 518 (1985); Brenner v. Brown, 36 F.3d 18 at 19; Rennie v. Dalton, 3 F.3d 1100, 1106 (7th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1054, 127 L.Ed.2d 375 (1994); Starks v. George Court Co., Inc., 937 F.2d 311, 314-315 (7th Cir.1991). This Court has explicitly noted that district court findings “will not be overturned if they are supported by evidence or inferences which avoid the realm of nonsense. In other words, the defendants must leave us Svith the definite and firm conviction that a mistake has been committed’ by the district court.” Starks, 937 F.2d at 314-315 (citations omitted). Here, the district court’s findings are well supported by the record. Alexander established her prima facie case of retaliatory discharge. The record reflects that Alexander engaged in statutorily protected expression. Her July 26, 1989 memorandum clearly indicated her negative emotional reaction to Marella’s comment. The professional and" }, { "docid": "12682717", "title": "", "text": "in the district court’s shoes we might agree with Gerhardt’s claim. However, this Court has made clear that “if ever there was a ease for reviewing the determinations of a trial court under a highly deferential version of the ‘abuse of discretion’ standard, it is in the matter of determining the reasonableness of the time spent by a lawyer on a particular task in a litigation in that court.” Ustrak, 851 F.2d at 987. This deference, coupled with the district court’s careful scrutiny of the fee calculation and its reduction of the award by 25 percent, leads us to leave the award as it stands. IV. Finally, Gerhardt challenges the sufficiency of the evidence supporting the district court’s conclusion that Alexander was fired in retaliation for her filing the complaint. Section 704 of Title VII makes it unlawful “for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). In order to establish the prima facie case of retaliation under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff must show: (1) she engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) there was a causal link between the protected expression and the adverse action. Brenner v. Brown, 36 F.3d 18, 19 (7th Cir.1994) (per curiam); Juarez v. Ameritech Mobil Communications, Inc., 957 F.2d 317, 321 (7th Cir.1992). If she makes this prima facie showing, the burden of producing a legitimate nondiscriminatory reason for her firing shifts to Gerhardt. Once Gerhardt meets this burden, Alexander bears the burden of showing that Gerhardt’s reasons are pretextual and that its actual reason was discriminatory. Dey v. Colt Const. & Development Co., 28 F.3d 1446, 1457 (7th Cir.1994), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). On review, this Court" }, { "docid": "22291330", "title": "", "text": "opposed any act or practice made unlawful by [the ADA] or ... has made a charge [under the ADA].” 42 U.S.C. § 12203(a). It further provides that it is “unlawful to coerce, intimidate, threaten, or interfere with any individual ... on account of his or her having ... exercisefd] ... any right granted or protected by [the ADA].” 42 U.S.C. § 12203(b). A plaintiff bringing a retaliation claim may prevail by presenting either direct evidence of discrimination or indirect evidence under the burden-shifting method set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Smart v. Ball State Univ., 89 F.3d 437, 439 (7th Cir.1996). One following the latter course first must demonstrate a prima facie case of retaliation: He “ ‘must establish that (1) he engaged in statutorily protected expression; (2) he suffered an adverse action; and (3) there is a causal link between the protected expression and the adverse action.’ ” Talanda, 140 F.3d at 1095 (quoting Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1459 (7th Cir.1995)). If the employee succeeds in proving his prima facie case, the employer then must offer a nondiscriminatory reason for its adverse action. If the employer’s justification is lawful, the employee then must rebut that legitimate reason and establish that a discriminatory motive was the determining factor behind the employer’s action. See id. at 1095-96. “Although the burden of production shifts under this method, ‘the burden of persuasion rests at all times on the plaintiff.’ ” Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir.1998) (quoting Klein v. Trustees of Indiana Univ., 766 F.2d 275, 280 (7th Cir.1985)). In this case, we focus in particular on the second step in the prima facie case, the adverse employment action. An employee claiming retaliation must show that he suffered a “materially adverse employment action.” McDonnell v. Cisneros, 84 F.3d 256, 258 (7th Cir.1996). We have defined the phrase broadly in this circuit; it of course includes readily quantifiable losses such as loss or reduction of pay or monetary benefits, but it can" }, { "docid": "22278866", "title": "", "text": "977 F.2d 195, 199 (5th Cir.1992) (holding that an employer created a sexually hostile environment by transferring an employee to a department supervised by someone who had previously harassed the employee). However, in this case, as discussed above, Gray did not engage in harassment, let alone “particularly severe or pervasive harassment.” Therefore, as a matter of law, the City’s actions in assigning Gray to work near Adusumilli did not create an objectively hostile environment. See Saxton v. American Telephone and Telegraph Co., 10 F.3d 526, 536 n. 18 (7th Cir.1993) (holding misconduct insufficiently severe or pervasive to cause supervisor’s mere presence to render the employee’s environment hostile when misconduct consisted of supervisor placing his hand on employee’s leg above the knee, rubbing his hand along her upper thigh, forcibly kissing her, and lurching at her from behind bushes). Because we hold that the incidents alleged by Adusumilli do not constitute harassment, we need not discuss the City’s liability for the conduct of its employees.. 2. Retaliation Under Title VII, it is “an unlawful employment practice for an employer to discriminate against any of his employees ... because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Under the McDonnell Douglas burden shifting method of proving discrimination, Adu-sumilli must first establish a prima facie case of retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In order to do so, she must show that “(1) she engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) there is a causal link between the protected expression and the adverse action.” Dey v. Colt Construction & Development Co., 28 F.3d 1446, 1457 (7th Cir.1994) (internal quotation marks and citations omitted). Once Adusumilli makes this showing, the burden shifts to the City to state a “legitimate, nondiscriminatory reason” for the adverse action. Id. If the City is able to state such a reason, the burden shifts back to Adusumilli to show that the “proffered reasons" }, { "docid": "23678822", "title": "", "text": "Grugel notes that it was not uncommon at UWEC for minor pay distinctions based on such slight differences in experience to be eliminated over time. Johnson does not provide any evidence that these asserted nondiscriminatory reasons were pretextual. 2. Retaliation In order to establish a prima fa-cie case of Title VII retaliation, a plaintiff must show that 1) she engaged in statutorily protected expression; 2) she suffered an adverse action by her employer; and 3) there is a causal link between the protected expression and the adverse action. Brenner v. Brown, 36 F.3d 18, 19 (7th Cir.1994); Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 321 (7th Cir.1992). In order to demonstrate the “causal link,” the plaintiff must demonstrate that the employer would not have taken the adverse action “but for” the protected expression. Klein v. Trustees of Indiana Univ., 766 F.2d 275, 280 (7th Cir.1985). Under the McDonnell Douglas burden-shifting analysis, after the plaintiff establishes a prima facie ease, the burden of production shifts to the defendant employer to come forward with a legitimate, non-retaliatory reason for its actions. Griffin v. Board of Regents of Regency Univ., 795 F.2d 1281, 1294 (7th Cir.1986). If the defendant rebuts the plaintiffs prima facie case in this manner, the plaintiff then has a chance to show that the defendant’s proffered reasons are pretextual. Id. Johnson asserts a number of retaliatory actions; we will address them all in turn. First, Johnson asserts that her 1992-93 salary was reduced in retaliation for her June 1991 protest regarding her 1991-92 base rate. The stumbling block for Johnson’s prima facie case, however, is her failure to present any evidence of a causal link between her salary protest and the 1992-93 base rate. The fact that Johnson’s 1992-93 base rate was cut to 93.447% of her 1991-92 base rate is not evidence of retaliation, since all the English academic staff had their base rates reduced in this manner. Furthermore, the substantial reduction in Johnson’s appointment percentage for the 1992-93 academic year (to a 50% appointment) also fails as evidence of retaliation, since all the academic staff," }, { "docid": "22291331", "title": "", "text": "1446, 1459 (7th Cir.1995)). If the employee succeeds in proving his prima facie case, the employer then must offer a nondiscriminatory reason for its adverse action. If the employer’s justification is lawful, the employee then must rebut that legitimate reason and establish that a discriminatory motive was the determining factor behind the employer’s action. See id. at 1095-96. “Although the burden of production shifts under this method, ‘the burden of persuasion rests at all times on the plaintiff.’ ” Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir.1998) (quoting Klein v. Trustees of Indiana Univ., 766 F.2d 275, 280 (7th Cir.1985)). In this case, we focus in particular on the second step in the prima facie case, the adverse employment action. An employee claiming retaliation must show that he suffered a “materially adverse employment action.” McDonnell v. Cisneros, 84 F.3d 256, 258 (7th Cir.1996). We have defined the phrase broadly in this circuit; it of course includes readily quantifiable losses such as loss or reduction of pay or monetary benefits, but it can encompass many other forms of adversity. See Smart, 89 F.3d at 441 (citing examples). Adverse employment actions include “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). Minor or trivial actions that make an employee unhappy are not sufficient to qualify as retaliation under the ADA. See Smart, 89 F.3d at 441. When the employee demonstrates that the action against him was adverse, he then must show that there was a causal link between that action and the expression protected under the ADA. a. Sergeant Silk’s first claim is that, even though the CPD did accommodate him by giving him the day watch, it discriminated and retaliated against him by forbidding him from teaching as his secondary employment and by suspending him for his violation of the secondary employment rule in Order 89-8. Order 89-8 sets forth a general policy, applicable to all police department members, concerning secondary employment. It states that police work takes priority over all" }, { "docid": "22278867", "title": "", "text": "for an employer to discriminate against any of his employees ... because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Under the McDonnell Douglas burden shifting method of proving discrimination, Adu-sumilli must first establish a prima facie case of retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In order to do so, she must show that “(1) she engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) there is a causal link between the protected expression and the adverse action.” Dey v. Colt Construction & Development Co., 28 F.3d 1446, 1457 (7th Cir.1994) (internal quotation marks and citations omitted). Once Adusumilli makes this showing, the burden shifts to the City to state a “legitimate, nondiscriminatory reason” for the adverse action. Id. If the City is able to state such a reason, the burden shifts back to Adusumilli to show that the “proffered reasons are pre-textual and that [the] actual reason was discriminatory.” Id. Although the burden of production shifts under this method, “the burden of persuasion rests at all times on the plaintiff.” Klein v. Trustees of Indiana University, 766 F.2d 275, 280 (7th Cir.1985). The district court held that Adusumilli had satisfied the first two elements of a prima facie case of retaliation. First, her complaint about Gray’s conduct was protected expression. Adusumilli, 1997 WL 769457 at *8. Second, placing Adusumilli in the Behavior Alert program and subsequently firing her were adverse actions. Id. However, the lower court held that Adusumilli had not created a genuine issue of fact with respect to the causal link between the protected ac tivity and the adverse action. Furthermore, the court held, Adusumilli had not created a genuine issue regarding whether the City’s proffered reason for its adverse actions was pretextual. Adusumilli challenges these determinations. It is settled in this Circuit that, “a plaintiff may establish ... a [causal] link' [between .protected expression and adverse action] through evidence that the discharge" }, { "docid": "8489627", "title": "", "text": "must ‘set forth specific facts showing that there is a genuine issue for trial.’ ” Vitug v. Multistage Tax Comm’n, 88 F.3d 506, 512 (7th Cir.1996) (quoting Fed.R.Civ.P. 56(e)). If “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,” the nonmovant has not demonstrated a dispute of material fact exists. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). Discrimination may be proven either directly, such as by an admission by the defendant, or indirectly under the burden-shifting method established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Herron v. DaimlerChrysler Corp., 388 F.3d 293, 299-302 (7th Cir.2004); Alexander v. Wis. Dep’t of Health & Family Servs., 263 F.3d 673, 682 (7th Cir.2001). For his discrimination claim, Seaife makes no argument relating to the direct method, opting instead to proceed only under the indirect method. McDonnell Douglas places the initial burden on the plaintiff to establish a prima facie case, which is the same whether the claim is brought under Title VII or § 1981. See Cerutti v. BASF Corp., 349 F.3d 1055, 1060-61 n. 4 (7th Cir.2003) (citations omitted). A prima fa-cie case of discrimination is established if the employee provides evidence that: (1) he is a member of a protected class; (2) he was meeting his employer’s legitimate expectations at the time of the alleged adverse action; (3) he was subjected to an adverse employment action; and (4) the employer treated similarly situated employees not in the protected class more favorably. Herron, 388 F.3d at 299 (citation omitted). Similarly, retaliation may be proven directly or indirectly. A prima fa-cie case for retaliation under the indirect method requires the plaintiff to show that: (1) he engaged in statutorily protected activity; (2) he was performing his job according to his employer’s legitimate expectations; (3) he suffered a materially adverse action; and (4) he was treated worse than a similarly situated employee who did not engage in statutorily" }, { "docid": "23057388", "title": "", "text": "for a retaliation claim; the employee need only have a sincere and reasonable belief that she is challenging conduct that violates Title VII. Holland v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1314 (7th Cir.1989). The McDonnell Douglas burden-shifting test applies to Golliday’s retaliation claim just as it did to her pregnancy discrimination claim. Knox v. State of Indiana, 93 F.3d 1327, 1333 (7th Cir.1996). To establish her prima facie retaliation case Golliday must show (a) that she engaged in statutorily protected expression, (b) that she suffered adverse action by her employer, and (c) that a causal link exists between the protected expression and the adverse action. Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1457 (7th Cir.1994). Under the McDonnell Douglas test, Metro Water can rebut the inference from a prima facie ease with a legitimate nondiseriminatory reason and shift the burden back to Golliday to show pretext. Golliday has not provided any evidence that she took any action under Title VII prior to February 1993, so Metro Water’s conduct before that date need not be considered. But as we have noted, Golliday did file a complaint with Ms. Wilkins, Metro Water’s internal equal, employment opportunity officer, on February 1, 1993, and another one with the E.E.O.C. on or about April 28,1993. Casey testified that in the winter of 1993 he met with Wilkins for six to eight hours regarding Golliday’s internal charges, so it is clear that at least one of her supervisors had knowledge of the internal complaint. It of course is undisputed that she suffered adverse actions by her employer — -the initial suspension and the suspension pending termination. It follows, then, that the first two elements of a prima facie case are satisfied. On the third element, the district court determined that Golliday failed to show a causal link between her protected activity and her problems with her supervisors or her termination. The court believed her problems at work began with her requests for a letter of verification and promotion rather than any protests of discrimination, and these problems began long before" }, { "docid": "22142590", "title": "", "text": "false, and that discrimination was the real reason.” Id. (emphasis in the original); see also McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 797 (7th Cir.1997) (“Once the employer makes this showing [of a legitimate, non-discriminatory reason for the adverse employment action], the burden then shifts back to the employee to show that the employer’s proffered reasons are pretextual and that its actual reason was discriminatory or retaliatory.”). 3. Turning to the case before us, there can be no dispute that sufficient evidence exists in the record to satisfy the first two factors required to establish a prima facie case of retaliatory discharge. King engaged in protected activity by taking leave pursuant to the FMLA, and PTG’s termination of her qualifies as an adverse employment decision. The evidence also establishes the third component of the prima facie case, the demonstration of a causal link between the employee’s participation in the protected activity and the adverse employment action. This element may be satisfied by reference to the temporal proximity between King’s taking of the protected leave and her termination. “Generally, a plaintiff may establish such a link through evidence that the discharge took place on the heels of protected activity.” Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir.1994). Evidence demonstrating such a connection “is generally enough to satisfy the third element of the prima facie test.” Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir.1996). PTG terminated King only one day after she completed her leave of absence under the FMLA. Such a close proximity is sufficient to establish a prima facie ease of retaliation. See, e.g., McClendon, 108 F.3d at 797 (concluding that a sequence of events over a 2-3 day period between the protected activity and the adverse employment action was sufficient to establish a prima facie case of retaliation). Because the evidence in the record before us establishes a prima facie case of retaliation under the FMLA, the burden of production shifts to PTG to articulate a legitimate, non-discriminatory reason for the adverse employment action. Burdine, 450 U.S. at 254, 101 S.Ct. 1089." }, { "docid": "22803273", "title": "", "text": "withstand Jefferson’s summary judgment motion, we must examine her Title VII claim pursuant to the burden-shifting framework enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under this framework, we must first ask whether the plaintiff can establish a prima facie case of discrimination. If the plaintiff successfully establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its challenged action. Once such a reason has been articulated, the burden shifts back to the plaintiff to show that the articulated reason is pretextual. This can be accomplished by showing, through circumstantial evidence, that the employer’s articulated explanation is not worthy of credence. Such a showing permits an inference of discrimination. See Burdine, 450 U.S. at 252-56, 101 S.Ct. at 1093-95; McDonnell Douglas, 411 U.S. at 802-05, 93 S.Ct. at 1824-26; McMillian, supra, 878 F.2d at 188-89; Reeder-Baker v. Lincoln Nat’l Corp., 834 F.2d 1373, 1377 (7th Cir.1987). We therefore turn to the question of Mrs. Holland’s prima facie case. 1. Prima facie case of retaliation Section 704 of Title VII of the Civil Rights Act of 1964 makes it unlawful “for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, Mrs. Holland must show that (1) she engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) there is a causal link between the protected expression and the adverse action. See, e.g., Jennings v. Tinley Park Community Consol. School Dist. No. 146, 796 F.2d 962, 966-67 (7th Cir.1986), cert. denied, 481 U.S. 1017, 107 S.Ct. 1895, 95 L.Ed.2d 502 (1987); Klein v. Trustees of Indiana Univ., 766 F.2d 275, 280 (7th Cir.1985); Reeder-Baker v. Lincoln Nat’l. Corp., 649 F.Supp. 647, 657 (N.D.Ind.1986), aff'd, 834 F.2d" }, { "docid": "3517767", "title": "", "text": "law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On appeal, Dunn argues that the district court erred by granting summary judgment because issues of fact existed with regard to whether: (1) Nordstrom retaliated against him by demoting him following his initial complaint to the EEOC; (2) Nordstrom retaliated against him by promoting Sims following his second EEOC complaint; and (3) Nordstrom behaved in a discriminatory manner by terminating him despite an unofficial policy that, regardless of Nord-strom’s official policy to the contrary, permitted employees to store firearms in the employee service area. Because Dunn presents no direct evidence in support of his claims, he must present sufficient evidence to establish a prima facie case of discrimination under the burden-shifting methodology of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In order to prove a prima facie case of discrimination, Dunn must show that (1) he was a member of a protected class; (2) he was meeting Nordstrom’s legitimate performance expectations; (3) he suffered an adverse employment action; and (4) he was treated less favorably than similarly situated employees outside of his protected class. See Foster v. Arthur Andersen, L.L.P., 168 F.3d 1029, 1035 (7th Cir.1999). The standard for establishing a prima facie case of retaliation is slightly different. Due to a “causal connection” requirement, “[t]he McDonnell Douglas standard that we apply in most of our retaliation cases is not really the McDonnell Douglas standard.” See Bourbon v. Kmart Corp., 223 F.3d 469, 475 (7th Cir.2000) (Posner, J., concurring). Rather, a plaintiff'must establish that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action subsequent to his participation; and (3) there was a causal link between the adverse action and the protected activity. See Sweeney v. West, 149 F.3d 550, 555 (7th Cir.1998). To prove a causal link, the plaintiff is re quired to show that the employer would not have taken the adverse action “but for” the plaintiffs engagement in the protected activity. See McKenzie v." }, { "docid": "3106835", "title": "", "text": "acts of non-promotion “was discriminatory and had harmed [him].” Jones, 42 F.3d at 1058. Moreover, as in Jones, each promotion was a “discrete decision” of which Plaintiff was, or should have been, aware. Accordingly, it would not have been unreasonable to expect Plaintiff to sue separately on éach act of non-promotion. In sum, the continuing violation doctrine does not rescue Plaintiff’s time-barred claims. b. Plaintiff’s Remaining Title VII Retaliation Claims: Retaliatory Discharge, Retaliatory Harassment, and Two Acts of Retaliatory Failure to Promote A plaintiff who brings a retaliation claim under Title VII must either present direct evidence of retaliation or proceed within the familiar burden-shifting framework set forth in McDonnell. Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 482-83 (7th Cir.1996). Under the burden-shifting framework, Plaintiff can establish a prima facie case of retaliation by showing, first, that he engaged in statutorily protected expression or activity — that is, that he “opposed” an employment practice made unlawful by Title VII. Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187, 195 (7th Cir.1994); 42 U.S.C. § 2000e-3(a). To constitute opposition, the conduct an employee objects to need not actually violate Title VII. Dey v. Colt Const. & Development Co., 28 F.3d 1446, 1458 (7th Cir.1994). Rather, the test is whether the employee “reasonably believed in good faith that the practice she opposed violated Title VII.” Alexander, 40 F.3d at 195. Second, the plaintiff must demonstrate that she suffered an adverse action by her employer. Knox, 93 F.3d at 1333. Any action qualifies, so long as it is in some way adverse. Id. at 1334 (observing that “There is nothing in the law of retaliation that restricts the type of retaliatory act that might be visited upon an employee who seeks to invoke her rights by filing a complaint”). Finally, the plaintiff must establish a causal link between the protected activity or expression and the adverse action. Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 938-39 (7th Cir.1996). Such a link may be established by evidence" }, { "docid": "16771784", "title": "", "text": "discharge from the Milwaukee County Medical Examiner’s Office was in retaliation for the allegations of discrimination in the letters sent to his elected officials. Payne, who is African-American, also contends that the County’s failure to promote him, his lowered work evaluation, and his subsequent discharge were all based on his race. Under the now familiar McDonnell Douglas indirect method of proof, Payne attempted to establish a prima facie ease for his race discrimination and retaliation claims. Essex v. United Parcel Serv., Inc., 111 F.3d 1304, 1308 (7th Cir.1997) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Although a prima facie case for each of these claims is different, the shifting burdens of production set forth in McDonnell Douglas apply to both. Id. If the plaintiff establishes a prima facie case, there is a rebuttable presumption of discrimination and the employer must offer a legitimate, nondiscriminatory or non-retaliatory reason for the adverse employment action. Id. at 1308-09. If the employer gives a legitimate, non-dis: criminatory reason for the adverse employment action, the plaintiff must prove this reason is mere pretext for discrimination. Id. at 1309. 1. Retaliation Payne contends that his discharge was retaliatory due to the allegations of discrimination in his letters to his elected officials. Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1035 (7th Cir.1998). In order to establish a prima facie ease of retaliation under the McDonnell Douglas frame work, Payne must establish that: (1) he participated in a protected activity under Title VII; (2) he suffered an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action. Id. Payne asserts that “but for” the letters to his elected officials, he would not have been fired, suggesting that this establishes the necessary causal nexus. Although Payne misconstrued the nature of the activities protected under a Title VII claim of retaliation, Payne’s EEOC complaint is a protected activity under element one. See id." }, { "docid": "23353369", "title": "", "text": "prima facie ease. “Generally, a plaintiff may establish such a link through evidence that the discharge took place on the heels of protected activity.” Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir.1994); accord Hunt-Golliday v. Metropolitan Water Reclamation Dist., 104 F.3d 1004, 1014-15 (7th Cir.1997). A close temporal connection between the two events “is generally enough to satisfy the third eler ment of the prima facie test.” Rabinovitz, 89 F.3d at 489. However, “as the temporal distance between [the claimant’s] protected expression and the adverse action increase[s], it is less likely that there is a causal link between the two events.” McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473, 485 (7th Cir.1996); accord Johnson v. University of Wisconsin-Eau Claire, 70 F.3d 469, 480 (7th Cir.1995) (“[T]he substantial time lapse between the two events is counter-evidence of any causal connection.”). We have found the causal nexus sufficiently demonstrated when the time period between the filing of a complaint and the adverse action was one day or one week. Similarly, in this case we must conclude that the sequence of events over the 2-3 day period between Mr. McClendon’s filing of his complaint and his termination has established a prima facie case of retaliation. ISI responds to Mr. McClendon’s prima facie case by articulating a legitimate, non-discriminatory reason for the discharge; Mr. McClendon’s insubordination. In his affidavit, Yonover stated that insubordination always had been a ground for discharge at ISI during Mr. McClendon’s term of employment there, and that Mr. McClendon’s grossly insubordinate conduct during the September 23, 1994 meeting was the reason for his termination. Once the employer makes this showing, the burden then shifts back to the employee to show that the employer’s proffered reasons are pretextual and that his actual reason was discriminatory or retaliatory. Alexander, 40 F.3d at 195; Dey, 28 F.3d at 1457. The only evidence relied upon by Mr! McClendon to prove that ISI’s proffered reason for his discharge was a mere pretext for, retaliation was the decision of the Administrative Law Judge (“ALJ”) of the Indiana Department of Workforce" }, { "docid": "6681254", "title": "", "text": "two claims; 1) that he was terminated in retaliation for his opposition to Metra’s allegedly discriminatory policies and 2) he was terminated due to his national origin. The court will deal with each claim separately. Examination of a Title VII claim, generally, is made pursuant to the burden shifting analysis stated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that analysis, the plaintiff has the initial burden to establish a prima facie case of discrimination. If the plaintiff is successful, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the challenged action. If the defendant is successful, the burden shifts back to the plaintiff to show that the articulated reason is pretextual. McDonnell Douglas, 411 U.S. at 802-05, 93 S.Ct. at 1824-26; see also, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981). In order to establish a prima fa-cie case of retaliation under Title VII, a plaintiff must show: 1) that he engaged in statutorily protected expression; 2) he suffered an adverse action by his employer and; 3) there is a causal link between the protected expression and the adverse action. Holland v. Jefferson National Life Insurance Co., 883 F.2d 1307, 1313 (7th Cir.1989). In order to have a protected expression under Title VII, a plaintiff need only have a reasonable belief that the practice challenged is in violation of Title VII. Holland, 883 F.2d at 1314. Moreover, Title VII protects not only formal charges of discrimination, such as charges filled with the Equal Employment Opportunity Commission, but informal complaints to supervisors as well. Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir.1990). Plaintiff claims he was retaliated against for complaining to Cole and Nielsen concerning possible hiring discrimination against minorities. Plaintiffs Response, p. 11-12. Plaintiff had a reasonable belief that a violation was occurring. As such, his expression is certainly protected under Title VII. As well, there is no question that plaintiffs termination is an adverse action by Metra. The remaining question" }, { "docid": "22291329", "title": "", "text": "in this case is accommodation. When the Sergeant requested no first watch, his request was approved. When he requested only second watch, again he was provided with the requested accommodation. See Feliberty v. Kemper Corp., 98 F.3d 274, 280 (7th Cir.1996) (“Determining whether an accommodation is reasonable depends, to a significant extent, upon determining whether the employer has acceded to the disabled employee’s request.”). Sergeant Silk has not complained that the accommodations were unreasonable or in any way missed the mark. Moreover, we note that the CPD engaged in an interactive process with the Sergeant and gave him the accommodations that enabled him to continue working. See 29 C.F.R. § 1630.2(o)(3); Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir.1998) (describing interactive process between employer and employee to determine the appropriate accommodation). Therefore, we accept that the CPD made all of the reasonable accommodations sought by Sergeant Silk for his disability. 2. The first count of Sergeant Silk’s complaint is a retaliation claim under the ADA. The retaliation provision protects any individual who “has opposed any act or practice made unlawful by [the ADA] or ... has made a charge [under the ADA].” 42 U.S.C. § 12203(a). It further provides that it is “unlawful to coerce, intimidate, threaten, or interfere with any individual ... on account of his or her having ... exercisefd] ... any right granted or protected by [the ADA].” 42 U.S.C. § 12203(b). A plaintiff bringing a retaliation claim may prevail by presenting either direct evidence of discrimination or indirect evidence under the burden-shifting method set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Smart v. Ball State Univ., 89 F.3d 437, 439 (7th Cir.1996). One following the latter course first must demonstrate a prima facie case of retaliation: He “ ‘must establish that (1) he engaged in statutorily protected expression; (2) he suffered an adverse action; and (3) there is a causal link between the protected expression and the adverse action.’ ” Talanda, 140 F.3d at 1095 (quoting Roth v. Lutheran Gen. Hosp., 57 F.3d" } ]

[ { "docid": "3852411", "title": "", "text": "C.F.R. § 1632.14(a). See United States v. Sandbank, 403 F.2d 38 (2d Cir. 1968), cert. denied, 394 U.S. 961, 89 S.Ct. 1301, 22 L.Ed.2d 562 (1969). Cf. United States v. Wagner, 292 F.Supp. 1 (W.D.Wash.1967), aff’d. 403 F.2d 1 (9th Cir. 1968) (reh. denied). Regulation 1632.2 “Postponement of induction; general” refers to a postponement due to specified circumstances such as death or “other extreme emergency beyond registrant’s control.” This type of “formal postponement” ordinarily would result from a request initiated by the registrant himself. The type of delay in the date of induction which occurred in this case was authorized by Army Regulation 601-270, Ch. 2, Sec. 3, Para. 40(b)(6) (superseded June 1969) and comes within the terms of 32 C.F.R. § 1632.14(a) (1969) which provides that “If the time when the registrant is ordered to report for induction is postponed, it shall be the continuing duty of the registrant to report for induction upon the termination of such postponement and he shall report for induction at such time and place as may be fixed by the local board.” Appellant does not contend that his induction order issued February 26, 1969 was canceled or in any way invalid or invalidated. Therefore, the board’s letter of May 16, 1969 was a notification, referred to in 32 C.F.R. § 1632.14(a), of the new date for his induction, which had been postponed but never canceled. Third, appellant’s argument overlooks Subdivision (d) of the very regulation upon which he relies. Regulation 1632.2 (d) (1969) provides that “A postponement of induction shall not render invalid the Order to Report for Induction (SSS Form No. 252) which has been issued to the registrant but shall operate only to postpone the reporting date and the registrant shall report on the new date without having issued to him a new Order to Report for Induction (SSS Form No. 252).” 32 C.F.R. § 1632.2(d) (1969). Thus, a postponement under the circumstances of this case does not invalidate an induction order but, rather, operates only to defer the reporting date. Where there has been a postponement, the registrant is required" } ]

[ { "docid": "13549671", "title": "", "text": "mailed, did the petitioner present a prima facie case that the change in his status was a result of circumstances beyond his control? The Court now turns to a discussion of the first question. The pertinent portion of the hardship deferment regulation reads as follows: “In Class III-A shall be placed any registrant whose induction into the armed forces would result in extreme hardship to his wife, divorced wife, child, parent, grandparent, brother, or sister who is dependent upon him for support * * 32 C.F.R. § 1622.-30(b). In order to receive a III-A or hardship deferment, it would appear that the registrant must demonstrate two things: one, a relative must depend upon the registrant for “support” and two, if such “support” was removed, the dependent would suffer extreme hardship. The cases, which have interpreted or applied this regulation, generally have involved a dependency deferment upon the ground of financial hardship. See e. g., Petrie v. United States, supra; Howze v. United States, 409 F.2d 27 (9th Cir. 1969); United States v. Burlich, supra. There are cases which have dealt with financial considerations interrelated with the poor health of the dependent. See, e. g., Lewis v. Secretary, Department of Army, 402 F.2d 813 (9th Cir. 1968); Hamilton v. Commanding Officer, Armed Forces Examining and Induction Station, 328 F.2d 799 (9th Cir. 1964) (registrant claimed deferment upon ground he wanted to be conservator of his mother’s estate, since his mother was suffering from Parkinson’s disease); There are also cases in which the registrant claimed the hardship deferment upon the ground that the dependent was in ill health. See, e. g., United States v. Ronne, 414 F.2d 1340 (9th Cir. 1969) (Ditmars appeal); Reap v. Shambora, 241 F.2d 803, 807 (5th Cir. 1957). However, the Court has been unable to find a case which directly deals with whether a dependency deferment can be predicated upon emotional hardship in that the dependent is emotionally attached to the registrant. One case had a fact pattern in which the board considered an emotional dependency deferment but the court never decided this point. See United States" }, { "docid": "23366602", "title": "", "text": "(conscientious objector) and a regulation analogous to § 1631.7, we endorsed these same basic principles. There being evidence that Baker had been classified I-A, the Government was not obliged to prove an express order of the Board directed to Baker. 2. The call out of proper order. The State Director’s Notice of Call on Local Board (SSS Form 201) required the Board to select and deliver 21 men (in addition to delinquents) following the order of selection required by 26 C.F.R. § 1631.7. The pertinent portion of § 1631.7 provides that “Such registrants * * * shall be selected and ordered to report for induction in the following order: * * * (3) Nonvolunteers who have attained the age of 19 years and have no (sic) attained the age of 26 years and who (A) do not have a wife with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first, or (B) have a wife whom they married after the effective date of this amended sub-paragraph and with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first. * * *.” Manifestly, the order of call affects registrants’ substantial rights. In deed Congress has regarded the matter as so vital to the fairness of the operation of the Selective Service System that it enacted legislation prohibiting an administrative change of the present method of determining the relative order of induction within the specified age groups. 50 U.S.C. App. § 455(a) (2). And we hold that a strict compliance is essential to the validity of an Order to Report for Induction. Ordinarily the Government need not affirmatively prove that a registrant was so selected but may rely upon the presumption of regularity surrounding official proceedings to establish that fact. Greer v. United States, 378 F.2d 931 (5th Cir. 1967); Yates v. United States, 404 F.2d 462 (1st Cir. 1968). But in the instant case Baker adduced direct evidence that he" }, { "docid": "4477837", "title": "", "text": "law enforcement agencies, or antisocial attitudes or behavior which, while not a cause for administrative rejection, are tangible evidence of an impaired char-acterological capacity to adapt to the military service. (4) Drug addiction.” AR 40-501, ¶ 2-34a. . Appellant testified that he discovered that he was I-A only when, having lost his wallet, he obtained a duplicate SSS Form 110 from his local board in January, 1971. . “Such registrants . . . shall be selected and ordered to report for induction in the following order: (3) Non-volunteers who have attained the age of 19 years and have no [sic] attained the age of 26 years ... in the order of their dates of birth with the oldest being selected first.” 32 C.F.R. § 1631.7(a) (1967). . The Motion for Discovery states that these documents were sought “to determine if the defendant was called for induction and physical examination in the proper order and whether or not others should have been called instead of him. 32 C.F.R. 1628.11 and 1631.7, Yates v. United States, 404 F.2d 462, reh. [denied] 407 F.2d 50 (1st Cir. 1968 [1969]).”" }, { "docid": "13549692", "title": "", "text": "mental breakdowns and the death of his father. Due to this Court’s finding that the petitioner did not present a prima facie case to his Board that he was entitled to a hardship deferment, the above finding in reference to changed circumstances is of no avail’ to the petitioner. . When a call is placed without designation of age group or groups, each local board, upon receiving a Notice of Call on Local Board (SSS Form 201) from the State Director of Selective Service (1) for a specified number of men to be delivered for induction * * * shall select and order to report for induction the number of men required to fill the call from among its registrants who have been classified in Class I-A and Class I-A-0 and have been found acceptable for service in the Armed Forces and to whom the local board has mailed a Statement of Acceptability (DD Form 62) at least 21 days before the date fixed for induction * * * Such registrants * * * shall be selected and ordered to report for induction in the following order: (1) Delinquents who have attained the age of 19 years in the order of their dates of birth with the oldest being selected first. (2) Volunteers who have not attained the age of 26 years in the sequence in which they have volunteered for induction. (3) Nonvolunteers who have attained the age of 19 years and have not attained the age of 26 years and who (A) do not have a wife with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first, or (B) have a wife whom they married after the effective date (August 26, 1965) of this amended subparagraph and with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first. (4) Nonvolunteers who have attained the age of 19 years and have not at- ' tained the age of" }, { "docid": "4477836", "title": "", "text": ".” AR 601-270, ¶ 4-20h(l) (b). United States v. Powell, 449 F.2d 706, 708 (3d Cir. 1971). . AR 601-270, ¶ 4-20(6) states in part that “When documents prepared by physicians are submitted by the examinee in evidence of an existing physical condition which indicates that the individual has received treatment for a reported condition, such documents will be attached to each Standard Form 88.” . For fitness standards relating to the abdomen and gastrointestinal system, see AR 40-501, ¶ 2-3. . Of. United States v. Lloyd, 431 F.2d 160 (9th Cir. 1970). In Lloyd, the court affirmed the trial court’s rejection of an offer of proof that a similar letter from a named doctor was not attached to defendant’s file by the examining station, on the grounds that no showing was made as to its contents or as to the unavailability of a copy. 431 F.2d at 164 n. 10, 166. . More specifically, King emphasizes that one cause for rejection is a “character or behavior disorder” as evidenced by “(1) Frequent encounters with law enforcement agencies, or antisocial attitudes or behavior which, while not a cause for administrative rejection, are tangible evidence of an impaired char-acterological capacity to adapt to the military service. (4) Drug addiction.” AR 40-501, ¶ 2-34a. . Appellant testified that he discovered that he was I-A only when, having lost his wallet, he obtained a duplicate SSS Form 110 from his local board in January, 1971. . “Such registrants . . . shall be selected and ordered to report for induction in the following order: (3) Non-volunteers who have attained the age of 19 years and have no [sic] attained the age of 26 years ... in the order of their dates of birth with the oldest being selected first.” 32 C.F.R. § 1631.7(a) (1967). . The Motion for Discovery states that these documents were sought “to determine if the defendant was called for induction and physical examination in the proper order and whether or not others should have been called instead of him. 32 C.F.R. 1628.11 and 1631.7, Yates v. United States, 404" }, { "docid": "3270179", "title": "", "text": "also, United States ex rel. Bayly v. Reckord, 51 F.Supp. 507, decided on August 16, 1943 in the District Court of Maryland, abstracted in 12 L.W. 2110. Note, Judicial Review of Selective Service Board Classifications by Habeas Corpus, supra, at p. 830. See Selective Service Regulations, detailing the administrative procedures. G OH War Law Service, Statutes, p. 18,-601 et seq. § 10(a) (2) of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix § 310(a) (2). See the Note in Geo. Wash. L. Rev., supra. Chin Tow v. United States, 1909, 208 U.S. 8, 13, 28 S.Ct. 201, 52 L.Ed. 369. See Chin Yow v. United States, supra. As amended July 11, 1942, 7 Fed. Reg. 5342. “§ 622.31 Glass III-A: Mam deferred by reason of dependency. In Class III-A shall be placed any registrant who has one or more dependents as defined in § 622.32 and who is not engaged in a civilian activity which is necessary to war production or which is supporting the war effort. (For exceptions see § 622.-36.)” “§ 622.31-1 Class III-B: Man deferred both by reason of dependency and activity. In Class III-B shall be placed any registrant who has one or more dependents as defined in § 622.32 and who is engaged in a civilian activity which is necessary to war production or which is supporting the war effort. (For exceptions see § 622.36.)” “§ 622.32 ‘Dependent’ defined. To be considered as a dependent of a registrant: “(a) A person must be the wife or child of the registrant with whom the registrant maintains a bona fide family relationship in their home, or a person must depend for support upon the registrant and be either the wife or child (with whom the registrant does not maintain a bona fide family relationship in their home), divorced wife, parent, brother, sister, grandparent, grandchild, a person under 18 years of age whose support the registrant' has assumed in good faith, or a person of any age physically or mentally handicapped whose support the registrant has assumed in good faith; and “(b) Such status must" }, { "docid": "19866237", "title": "", "text": "in Gutkneeht, was taken. Reversed. When the mandate goes down, the indictment will be dismissed . 32 C.F.R. § 1631.7(b) stated in 1969: (b) When a call is placed with designation of age group or groups, each local board, upon receiving a Notice of Call on Local Board (SSS Form 201) from the State Director of Selective Service for a specified number of men to be delivered for induction, shall select and order to report for induction the number of men required to fill the call from among its registrants who have been classified in Class I-A and Class I-A-0 and who have been found acceptable for service in the Armed Forces and to whom the local board has mailed a Statement of Acceptability (DD Form 62) at least 21 days before .the date fixed for induction; Provided, That a registrant classified in Class I-A or Class I-A-0 who is a delinquent may be selected and ordered to report for induction to fill an induction call notwithstanding the fact that he has not been found acceptable for service in the Armed Forces and has not been mailed a Statement of Acceptability (DD Form 62) ; And provided further, That a registrant classified in Class I-A or Class I-A-0 who has volunteered for induction may be selected and ordered to report for induction notwithstanding the fact that he has not been found acceptable for service in the Armed Forces and regardless of whether a Statement of Acceptability has been mailed to him. Such registrants shall be selected and ordered to report for induction in the following-order : (1) Delinquents who have attained the age of 19 years in the order of their dates of birth with the oldest being selected first. (2) Volunteers who have not attained the age of 26 years in the sequence in which they have volunteered for induction. (3) Begistrants in the designated age group; and registrants who previously have been deferred in Class I-S-C after attaining the age of 19 years, or who have requested and have been granted a deferment in Class II-S after the" }, { "docid": "23504807", "title": "", "text": "paragraph may be substantially restricted or terminated by the President only upon a finding by him that the needs of the Armed Forces require such action. No person who has received a student deferment under the provisions of this paragraph shall thereafter be granted a deferment under this subsection, nor shall any such person be granted a deferment under subsection (i) of this section if he has been awarded a baccalaureate degree, except for extreme hardship to dependents (under regulations governing hardship deferments), or for graduate study, occupation, or employment necessary to the maintenance of the national health, safety, or interest. Any person who is in a deferred status under the provisions of subsection (i) of this section after attaining the nineteenth anniversary of the date of his birth, or who requests and is granted a student deferment under this paragraph, shall, upon the termination of such deferred status or deferment, and if qualified, be liable for induction as a registrant within the prime age group irrespective of his actual age, unless he is otherwise deferred under one of the exceptions specified in the preceding sentence. As used in this subsection, the term ‘prime age group’ means the age group which has been designated by the President as the age group from which selections for induction into the Armed Forces are first to be made after delinquents and volunteers.” . There are two other penalties which Congress wrote into the 1967 Act, which are also intended to prevent the “pyramiding” of the now mandatory undergraduate deferment: The recipient’s draft liability extends to age thirty-five, and upon graduation he reverts to a prime age group of eligible candidates for induction. See 50 U.S.C. App. §§ 456(h) (1), 456(h) (2) (Supp. IV, 1965-1968). . Selective Service Regulation No. 1622.-15(b) provides: “(b) In Class I-S shall be placed any registrant who while satisfactorily pursuing a full-time course of instruction at a college, university or similar institution of learning; and during his academic year at such institution is ordered to report for induction, except that no registrant shall be placed in Class I-S under" }, { "docid": "20085760", "title": "", "text": "registered under this Act. Application of Greenberg, D.C., 39 F.Supp. 13, a decision by District Judge Forman of New Jersey on May 26, 1941, is cited in support of the selectee’s contention. Greenberg was engaged to be married and actually married before induction into service. In his questionnaire, he stated his intention to marry because he was engaged. This was not considered an “evasion marriage”. As yet, this case has not been reviewed. The conclusion reached in that case is not pertinent to the matter at hand. Each case must be determined on the facts presented and the inferences to be drawn therefrom. As to the dependency of the wife of the selectee, Congress has defined the word “dependent” in Section 15(c), 50 U.S.C.A. Appendix, § 315(c), as follows: “The term ‘dependent’ when used with respect to a person registered under provisions of this Act includes only an individual (1) who is dependent in fact on such person for support in a reasonable manner, and (2) whose support in such a manner depends on income earned by such person in a business, occupation, or employment.” The regulations issued pursuant to the Act, in Section XXIII, Paragraph 355, sets forth a further definition of the word “dependent” which reads as follows : “A person shall be considered a registrant’s dependent only when all of the following conditions are satisfied: “A. Such person must be either (1) the registrant’s wife, divorced wife, child, parent, grandparent, brother or sister, or (2) a person under 18 years of age, or a person of any age who is physically or mentally handicapped, whose support the registrant has assumed in good faith. “B. Such person must either be a United States citizen or live in the United States, its territories, or possessions. “C. Such person, at the time the registrant is classified, must depend in fact for support in a reasonable manner, in view of such person’s circumstances, on income earned by the registrant by his work in a business, occupation, or employment (including employment on work relief projects but excluding employment as an enrollee in" }, { "docid": "3929230", "title": "", "text": "order to report for induction was valid. Defiance thereof was not. Joseph Ellwood Steiner, Jr. thus chose to walk a route which a jury of his peers has duly determined took him outside the law. Accordingly, the judgment and commitment is Affirmed. . Military Selective Service Act of 1967, 50 U.S.C.A. § 451 et seq., particularly § 454. . See Steiner v. Officer in Command, 436 F.2d 687 (5th Cir. 1970). . 50 U.S.C.A. § 462(a) provides in pertinent part: [A]ny person . . . who . refuses . . . service in the armed forces ... or who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title . . . shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment .... . (a) In Class II-C shall be placed any registrant who is employed in the production for market of a substantial quantity of those agricultural commodities which are necessary to the maintenance of the national health, safety, or interest. ... 32 C.F.R. § 1622.24 (1969). . This recall and review action was necessitated by Steiner’s claim of a lower classification than that which he had previously requested and appealed. 32 C.F.R. § 1623.2 requires that every registrant be classified in the lowest class for which he is determined to be eligible. Under this regulation Class III-A is a lower class than II-C. Thus, the pending appeal as to Steiner’s entitlement to the higher class could not proceed in the face of his newest claim. . (b) In Class III-A shall be placed any registrant whose induction into the armed forces would result in extreme hardship . . to his grandparent . . . who is dependent upon him for support. ... 32 C.F.R. § 1622.30 (1969). . The local board may reopen and consider anew the classification of a registrant (a) upon the" }, { "docid": "13549693", "title": "", "text": "be selected and ordered to report for induction in the following order: (1) Delinquents who have attained the age of 19 years in the order of their dates of birth with the oldest being selected first. (2) Volunteers who have not attained the age of 26 years in the sequence in which they have volunteered for induction. (3) Nonvolunteers who have attained the age of 19 years and have not attained the age of 26 years and who (A) do not have a wife with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first, or (B) have a wife whom they married after the effective date (August 26, 1965) of this amended subparagraph and with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first. (4) Nonvolunteers who have attained the age of 19 years and have not at- ' tained the age of 26 years and who have •a wife whom they married on or before the effective date (August 26, 1965) of this amended subparagraph and with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first. (5) Nonvolunteers who have attained the age of 26 years in the order of their dates of birth with the youngest being selected first. (6) Non volunteers who have attained the age of 18 years and 6 months and who have not attained the age of 19 years in thp order of their dates of birth with the oldest being selected first. 32 C.F.R. § 1631.7(a)." }, { "docid": "23504808", "title": "", "text": "deferred under one of the exceptions specified in the preceding sentence. As used in this subsection, the term ‘prime age group’ means the age group which has been designated by the President as the age group from which selections for induction into the Armed Forces are first to be made after delinquents and volunteers.” . There are two other penalties which Congress wrote into the 1967 Act, which are also intended to prevent the “pyramiding” of the now mandatory undergraduate deferment: The recipient’s draft liability extends to age thirty-five, and upon graduation he reverts to a prime age group of eligible candidates for induction. See 50 U.S.C. App. §§ 456(h) (1), 456(h) (2) (Supp. IV, 1965-1968). . Selective Service Regulation No. 1622.-15(b) provides: “(b) In Class I-S shall be placed any registrant who while satisfactorily pursuing a full-time course of instruction at a college, university or similar institution of learning; and during his academic year at such institution is ordered to report for induction, except that no registrant shall be placed in Class I-S under the provisions of this paragraph (1) who has previously been placed in Class I-S thereunder or (2) who has been deferred as a student in Class II-S and has received his baccalaureate degree. A registrant who is placed in Clsss I-S under the provision of this paragraph shall be retained in Class I-S (1) until the end of his academic year or (2) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier.” 32 C.F.R. § 1622.15(b). . This is the manner in which the Second Circuit has chosen to read Local Board Memorandum No. 87. See Marsano v. Laird, 412 F.2d 65, 69 (2d Cir. 1969); Carey v. Local Board No. 2, 297 F. Supp. 252 (D.Conn.1969), affirmed, 412 F.2d 71 (2d Cir. 1969). . 32 C.F.R. § 1622.60. . 32 C.F.R. § 1626.1. . 32 C.F.R. § 1625.3. . “Where a public official is a party to an action in his official capacity he resides in the judicial district where he maintains his official residence, that is where he" }, { "docid": "19866238", "title": "", "text": "acceptable for service in the Armed Forces and has not been mailed a Statement of Acceptability (DD Form 62) ; And provided further, That a registrant classified in Class I-A or Class I-A-0 who has volunteered for induction may be selected and ordered to report for induction notwithstanding the fact that he has not been found acceptable for service in the Armed Forces and regardless of whether a Statement of Acceptability has been mailed to him. Such registrants shall be selected and ordered to report for induction in the following-order : (1) Delinquents who have attained the age of 19 years in the order of their dates of birth with the oldest being selected first. (2) Volunteers who have not attained the age of 26 years in the sequence in which they have volunteered for induction. (3) Begistrants in the designated age group; and registrants who previously have been deferred in Class I-S-C after attaining the age of 19 years, or who have requested and have been granted a deferment in Class II-S after the enactment of the Military Selective Service Act of 1967, and who are no longer so deferred, shall be considered as being within the age group called regardless of their actual age. These registrants shall be integrated and called according to the month and day of their birth, the oldest first. Begistrants who have been deferred in Class I-S-G or Class II-S and have been integrated with a prime age group under the provisions of this paragraph shall, for the purposes of selection and call, thereafter bo considered a member of such age group. . The regulations were amended by an Executive- Order on June 16, 1970, to permit a local board to order the induction of a registrant who fails to report for a physical examination as ordered, without the necessity of first finding him acceptable for service or mailing him a Statement of Acceptability 21 days prior to induction. 32 O.E.R. § 1631.7(a)." }, { "docid": "12694464", "title": "", "text": "MEMORANDUM OF DECISION GARRITY, District Judge. Defendant was indicted for wilfully failing to comply with an order of his local draft board to report for and submit to induction, thereby violating 50 U.S.C. App. § 462. The case was tried without jury. It was stipulated that the defendant was ordered to report for induction on October 15, 1969 and that he failed and neglected to submit to induction at that time. The only issue is whether defendant was called for service in proper order, i.e., the so-called order-of-call defense. Cf. Gutknecht v. United States, 1970, 396 U.S. 295, 304-306, 90 S.Ct. 506, 24 L.Ed.2d 532; see Yates v. United States, 1 Cir., 1968, 404 F.2d 462. Selective Service regulations in effect at the time required local boards to call available registrants “oldest first,” see 32 C.F.R. § 1631.7, and the government must meet the burden of demonstrating that the proper order was followed. See Yates v. United States, 1 Cir., 1969, 407 F.2d 50, 51. The facts are not disputed. On September 9, 1969 the state director, Selective Service System, mailed a Notice of Call on Local Board to Local Board No. 83, Springfield, Massachusetts, requesting delivery of 27 men for induction on October 15. Pursuant to this notice, the executive secretary of Local Board No. 83 mailed 31 orders to report for induction on September 12; by age, defendant was thirteenth from the top of the list of those called. By letter dated September 19 and received by the Local Board on September 22, the state director ordered that the call be reduced from 27 to 16 men and that “those registrants issued induction orders but who as a result of the reduction in the call on your local board would not be selected shall be notified that their induction order is cancelled. . . . ” [Emphasis is original.] Local Board No. 83 did not cancel any of the original 31 orders. For the defendant to prevail under the order-of-call defense, mere non-p re judicial error on the Board’s part as to one or more registrants older than" }, { "docid": "16344231", "title": "", "text": "and bar his induction at this time. We find this theory without merit in this case, though we assume the facts alleged to be true for the purpose of testing the trial court’s dismissal. In filing a requisition for a specified number of men to be inducted into the armed forces, the local board must call those non-volunteers, either unmarried or those married subsequent to August 26, 1965, between nineteen and twenty-six years of age in the “order of their dates of birth with the oldest being selected first.” 32 C.F.R. § 1631.-7. The regulations relating to the order of call within age groups comport with the command of the Military Selective Service Act of 1967 that selection of persons for training and service shall be made in an impartial manner. Section 5(a) (1), 50 U.S.C.A. App. § 455(a) (1). Cf. United States v. Gutknecht, 406 F.2d 494 (8th Cir.), cert. granted, 394 U.S. 997, 89 S.Ct. 595, 22 L.Ed.2d 775 (1969). Section 5(a) (2) of the Act, 50 U.S.C.A. App. § 455(a) (2), freezes the existing administrative regulations governing the order of call within age groups until specifically otherwise authorized by law. Some administrative flexibility must be preserved in carrying out the prescribed order of call. Thus, the regulations recognize that induction of a registrant may be postponed by illness or family emergencies. The State Director of the Selective Service may postpone the issuance of an induction order for “a good cause”. 32 C.F.R. § 1632.2. Petitioner Green’s allegation that ten older men classified I-A remained on the draft rolls presents no picture of facially unlawful draft board procedures in inducting him as was the case in Oestereich. Green’s claims instead invite the court to review the factual or discretionary decisions made by the board in processing registrants, determinations whether the other ten men should properly have been called ahead of Green. To have the courts intervene to stay induction pending judicial review in this kind of situation could work havoc with the orderly processing of registrants which Congress sought to prevent in enacting § 10(b) (3). See Clark" }, { "docid": "13549670", "title": "", "text": "since at once it denies the registrant the opportunity of personal appearance before the Board with the right to make a statement, to point out in what respect he believes they erred and what they overlooked, and to present any additional information to assist the Board in determining his proper classification, and at the same time effectively forecloses an appeal from its determination. United States v. Burlich, supra, at 911. In applying the above principles of law to the present case, the Court has several determinations to make. One, under the provisions of 32 C.F.R. § 1622.30, the dependency deferment regulation, can a registrant claim a hardship deferment upon a ground other than a financial one? Or, in the terms of the present case, can he claim an “emotional hardship” deferment? Two, if a registrant can obtain an emotional dependency deferment, did the petitioner present a prima facie case to his Board that would have entitled him to said deferment? Three, since the petitioner sought a reopening of his classification after an induction order was mailed, did the petitioner present a prima facie case that the change in his status was a result of circumstances beyond his control? The Court now turns to a discussion of the first question. The pertinent portion of the hardship deferment regulation reads as follows: “In Class III-A shall be placed any registrant whose induction into the armed forces would result in extreme hardship to his wife, divorced wife, child, parent, grandparent, brother, or sister who is dependent upon him for support * * 32 C.F.R. § 1622.-30(b). In order to receive a III-A or hardship deferment, it would appear that the registrant must demonstrate two things: one, a relative must depend upon the registrant for “support” and two, if such “support” was removed, the dependent would suffer extreme hardship. The cases, which have interpreted or applied this regulation, generally have involved a dependency deferment upon the ground of financial hardship. See e. g., Petrie v. United States, supra; Howze v. United States, 409 F.2d 27 (9th Cir. 1969); United States v. Burlich, supra. There" }, { "docid": "13433703", "title": "", "text": "of Federal regulations provides: “ * * * Such registrants . shall be selected and ordered to report for induction in the following order: (1) Delinquents who have attained the age of 19 years in the order of their dates of birth with the oldest being selected first. (2) Volunteers who have not attained the age of 26 years in the sequence in which they have volunteered for induction. (3) Nonvolunteers who have attained the age of 19 years and have no [sic] attained the age of 26 years and who (A) do not have a wife with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first, or (B) have a wife whom they married after the effective date of this amended subparagraph and with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first. (4) Nonvolunteers who have attained the age of 19 years and have not attained the age of 26 years and who have a wife whom they married on or before the effective date of this amended subparagraph and with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first. (5) Nonvolunteers who have attained the age of 26 years in the order of their dates of birth with the youngest being selected first. (6) Nonvolunteers who have attained the age of 18 years and 6 months and who have not attained the age of 19 years in the order of their dates of birth with the oldest being selected first. In selecting registrants in the order of their dates of birth, if two or more registrants have the same date of birth they shall, as among themselves, be selected in alphabetical order.” This order is a matter of substance central to the present statutory scheme of the selective service system. In recent months the issue of order of call" }, { "docid": "13433702", "title": "", "text": "800, 812-813 (3d Cir.), cert. denied, 380 U.S. 919, 85 S.Ct. 913, 13 L.Ed.2d 804 (1964) (signing an order by rubber stamp violated regulations but did not void order to report for civilian work). The issue presented is whether this departure from law is so serious as to be characterized as “jurisdictional” under Estep. The history and policy of the draft law strongly suggest that violation of the order of call regulation is of sufficient consequence to warrant a finding that the local board exceeded its jurisdiction. Intertwined in this provision are two central objectives of the draft law: (1) that men be called for induction according to a specified order, and (2) that the burdens and opportunities of a conscientious objector for serving his country be as equivalent as possible to service in the Armed Forces. Order of Call-Up The order in which men are called to duty is specifically set out with detailed precision allowing a minimum of discretion in local boards. Subdivision (a) of section 1631.7 of title 32 of the Code of Federal regulations provides: “ * * * Such registrants . shall be selected and ordered to report for induction in the following order: (1) Delinquents who have attained the age of 19 years in the order of their dates of birth with the oldest being selected first. (2) Volunteers who have not attained the age of 26 years in the sequence in which they have volunteered for induction. (3) Nonvolunteers who have attained the age of 19 years and have no [sic] attained the age of 26 years and who (A) do not have a wife with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first, or (B) have a wife whom they married after the effective date of this amended subparagraph and with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first. (4) Nonvolunteers who have attained the age of 19" }, { "docid": "16344230", "title": "", "text": "negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the^ classification assigned to such registrant.” In Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), the Court construed that section inapplicable to bar a pre-induction review of action of the local draft board, conceded to be unlawful, which deprived a ministerial student of his exemption from the draft as mandated by the statute. Appellant contends that the Military Selective Service Act of 1967 specifies the order of call to be followed in drafting men for the armed services. Theorizing from Oestereich, Green argues that because his local board issued an induction notice to him contrary to this statutory mandate, the federal courts should intervene and bar his induction at this time. We find this theory without merit in this case, though we assume the facts alleged to be true for the purpose of testing the trial court’s dismissal. In filing a requisition for a specified number of men to be inducted into the armed forces, the local board must call those non-volunteers, either unmarried or those married subsequent to August 26, 1965, between nineteen and twenty-six years of age in the “order of their dates of birth with the oldest being selected first.” 32 C.F.R. § 1631.-7. The regulations relating to the order of call within age groups comport with the command of the Military Selective Service Act of 1967 that selection of persons for training and service shall be made in an impartial manner. Section 5(a) (1), 50 U.S.C.A. App. § 455(a) (1). Cf. United States v. Gutknecht, 406 F.2d 494 (8th Cir.), cert. granted, 394 U.S. 997, 89 S.Ct. 595, 22 L.Ed.2d 775 (1969). Section 5(a) (2) of the Act, 50 U.S.C.A. App. § 455(a) (2), freezes" }, { "docid": "23366601", "title": "", "text": "Local Board (SSS Form No. 201) to select and deliver registrants for induction. Selective Service Regulation § 1631.7 provides in part that a local board “upon receiving a Notice of Call * * * shall select and order to report for induction the number of men required to fill the call from among its registrants. * * * ” This language does suggest the need for a post-call meeting of a board, however we are clear that a literal construction is not required. The First Circuit in a very recent and well reasoned opinion involving this particular regulation has concluded that an order of the Board contingent upon a later call is valid and that such an order may be implied from the action of a board in classifying a registrant I-A. United States v. Powers, 413 F.2d 834, (1st Cir., July 14, 1969). We are in accord with that decision and note that in Brede v. United States, 396 F.2d 155, modified 400 F.2d 599 (9th Cir., 1968), a case involving a 1-0 registrant (conscientious objector) and a regulation analogous to § 1631.7, we endorsed these same basic principles. There being evidence that Baker had been classified I-A, the Government was not obliged to prove an express order of the Board directed to Baker. 2. The call out of proper order. The State Director’s Notice of Call on Local Board (SSS Form 201) required the Board to select and deliver 21 men (in addition to delinquents) following the order of selection required by 26 C.F.R. § 1631.7. The pertinent portion of § 1631.7 provides that “Such registrants * * * shall be selected and ordered to report for induction in the following order: * * * (3) Nonvolunteers who have attained the age of 19 years and have no (sic) attained the age of 26 years and who (A) do not have a wife with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first, or (B) have a wife whom they married after" } ]

[ { "docid": "4791238", "title": "", "text": "claim of the creditor against the debtor which arose prior to the commencement of the bankruptcy case; and 3. The debt and claim are mutual obligations. In re Fred Sanders Co., 33 B.R. 310 (Bankr.E.D.Mich.1983); In re Taylor Motors, 60 B.R. 760 (Bankr.Nev.1986); In re Brooks, 70 B.R. 368 (Bankr.E.D.Wis.1987). In re Sandman, 5 Mont.B.R. at 78, states: “[Bjefore a setoff can be made against the debts owed by a petitioner in bankruptcy, a creditor must seek relief from the automatic stay. IRS v. Norton, 717 F.2d 767, 771 (3rd Cir.1983).” The Debtor argues that mutuality does not exist, i.e., there are no pre-petition debts and claims because the Debtor under Chapter 12 is not the same Debtor pre-petition, that the CRP contract is executory and upon assumption creates a post-petition debt, and the funds held by ASCS are not funds by the same agency which seeks setoff. As to the latter argument, I adopt the position taken by the U.S. District Court of South Dakota, in U.S. Small Business Administration v. Rinehart, 88 B.R. 1014 (D.S.D.1988), aff'd and rev’d on other grounds, 887 F.2d 165 (8th Cir.1989). This Court agrees that in deciding whether federal agencies stand in the same capacity for section 553 offsets, there is no authority for distinguishing between the capacity of parties in relation to each other outside of bankruptcy and that capacity following the filing of bankruptcy petition. After citing federal regulations (7 C.F.R. § 13.2(b), 13.4(f) and 13.5(c)), together with 31 U.S.C. § 3716(c)(2), Rinehart decides, based on In re Thomas, 84 B.R. 438 (Bankr.N.D.Tex.1988); In re Britton, 83 B.R. 914 (Bankr.S.D.N.C.1988) and In re Hazelton, 85 B.R. 400 (Bankr.E.D.Mich.1988), that there is but one federal government, made up of independent agencies, which agencies stand in the same capacity to satisfy the mutuality of parties concept of the setoff doctrine. Next, the Debtor states that mutuality does not exist because Majorie Mohar, the pre-petition Debtor is different than Marjorie Mohar, the Debtor-In-Possession. Allied with this argument is that the CRP contract is executory which must be assumed under § 365 of the Code," } ]

[ { "docid": "221709", "title": "", "text": "setoff purposes. Id. at 553-23. Thus, the question is whether mutuality exists between the three departments and Lakeside. More particularly, under bankruptcy law, is Illinois or is each department individually the creditor? The answer in this case is that each department is a creditor individually for purposes of setoff. Section 101 of 11 U.S.C. defines the relevant parties as delineated in § 553. A creditor is an “entity that has a claim against the debtor....” 11 U.S.C. § 101(10). An entity “includes person, estate, trust, [and] governmental unit_” Id. at § 101(15). Finally, governmental unit “means United States; State; ... [or] department, agency, or instrumentality of the United States ... [or of] a State_” Id. at § 101(27). The list enumerates separately both “State” and “department, [or] agency of the State”. Congress intended that these units were to be treated as distinguishable and therefore not the same creditor within the provisions of the statute. In this case, there are three different departments. Based on this statutory interpretation, the Department of Revenue and Department of Employment Security are two different creditors. Illinois argues that “creditor” really means “government unit,” which in turns means the State, relying on Cherry Cotton Mills, Inc. v. United States, 327 U.S. 536, 66 S.Ct. 729, 90 L.Ed. 835 (1946), In re Cook United, Inc., 117 B.R. 301 (Bankr.N.D.Ohio 1990), and In re Thomas, 84 B.R. 438 (Bankr.N.D.Tex.1988), aff'd in part, rev’d in part, 91 B.R. 731 (N.D.Tex), amended, 93 B.R. 475 (N.D.Tex.1988). Illinois’s conclusion is not supported by these cases. Illinois’s reliance on Cherry is inappropriate as authority for their position for two reasons. First, Cherry was not a bankruptcy case and thus did not involve the same issues or rights. In Cherry, the federal government sought to setoff a tax refund due the petitioner under the Agriculture Adjustment Act against a loan the petitioner owed to the Reconstruction Finance Corporation under 28 U.S.C. § 250(1). Cherry, 327 U.S. at 537, 538, 66 S.Ct. at 729, 730. In Cherry, no other creditors were involved, merely a federally-created corporation. In this case, other unsecured creditors are involved." }, { "docid": "18890795", "title": "", "text": "the arguments presented therein should not be considered. The Court notes that all parties, including FmHA, agreed to allow the filing of the Amicus Brief. Thus, the Amicus Brief was included among the materials considered in arriving at this decision. . These regulations allow, upon satisfaction of certain conditions, setoff of \"amounts approved by Agricultural Stabilization and Conservation county committees for disbursement to [program participants] ... against debts of such [participants] owing to any department or agency of the United States.” 7 C.F.R. § 13.1. .That section provides \"[i]n case of indebtedness subject to setoff ... the head of any creditor agency of the Department of Agriculture ... may ... defer or subordinate in whole or in part, the right of the creditor agency to recover through setoff ... or may withdraw a request for setoff, if he determines that such action is in the best interest of ... such creditor agency ...\" 7 C.F.R. § 13.4(a) (emphasis added). . See infra pp. 412-13, where this issue is separately addressed. . The ASCS contract required debtor to satisfy certain set-aside requirements, maintain soil conservation practices, and file compliance reports. 63 B.R. at 58. . In the event of debtor’s failure to perform those duties, the contract provided CCC with damage remedies including the right to withhold payments, the right to require debtor to refund payments previously received, and the right to require debtor to pay liquidated damages. 69 B.R. at 531. .The cases cited by FmHA to support this contention are United States ex rel. Farmers Home Admin. v. Parrish (In re Parrish), 75 B.R. 14 (N.D.Tex.1987); Waldron v. Farmers Home Admin., 75 B.R. 25 (N.D.Tex.1987); Buske v. McDonald (In re Buske), 75 B.R. 213 (Bankr.N.D. Tex. 1987); Pinkert v. Farmers Home Admin. (In re Pinkert), 75 B.R. 218 (Bankr.N.D.Tex.1987); In re Ratliff, 79 B.R. 930 (Bankr.D.Colo.1987); and In re Thomas, 84 B.R. 438 (Bankr.N.D.Tex. 1988). . See e.g. Parrish, 75 B.R. at 15; Buske, 75 B.R. at 216; and Pinkert, 75 B.R. at 220. In each of these cases, the debtors conceded that FmHA and ASCS/CCC are the same" }, { "docid": "18801031", "title": "", "text": "an obligation by a different governmental department or agency is Cherry Cotton Mills, Inc. v. United States, 327 U.S. 536, 66 S.Ct. 729, 90 L.Ed. 835 (1946). In that non-bankruptcy case, the plaintiff was entitled to a tax refund under the Agricultural Adjustment Act but owed a balance on a loan from the Reconstruction Finance Corporation. When the government sought to offset the loan balance with the tax refund, the plaintiff appealed, arguing that the RFC should be treated as if it were a privately owned corporation and that setoff was inappropriate. The Court concluded that: “[e]very reason that could have prompted Congress to authorize the Government to plead counterclaims for debts owed to any of its other agencies applies with equal force to debts owed to the R.F.C. ... That the Congress chose to call it a corporation does not alter its characteristics so as to make it something other than what it actually is, an agency selected by Government to accomplish purely Governmental purposes.” Id. at 539, 66 S.Ct. at 730. Thus Cherry stands for the proposition that government agencies, even when acting in the capacity of private commercial lenders, may be considered as a single entity for purposes of setoff and counterclaims. Increasingly, courts have extended Cherry to apply to setoffs in the bankruptcy context. See, e.g., Thomas, 84 B.R. at 440 (relying on Cherry); In re Julien Co., 116 B.R. 628, 624 (Bankr.W.D.Tenn.1990) (holding that mutuality exists between the Commodity Credit Corporation and the Agricultural Marketing Service based upon Thomas and Cherry)-, Rinehart, 88 B.R. at 1016 (relying on Thomas and Cherry). These courts found no authority for distinguishing between setoffs within bankruptcy and setoffs outside the bankruptcy context. Rinehart, 88 B.R. at 1016. If such a distinction is made, debtors might attempt to improve their position visa-vis a government agency merely by filing a bankruptcy petition. Thomas, 84 B.R. at 440. As a result, “there appears to be an exception to the mutuality requirement when the federal government is involved.” Julien, 116 B.R. at 624. Thus this line of authority holds that mutuality for setoff" }, { "docid": "221710", "title": "", "text": "Security are two different creditors. Illinois argues that “creditor” really means “government unit,” which in turns means the State, relying on Cherry Cotton Mills, Inc. v. United States, 327 U.S. 536, 66 S.Ct. 729, 90 L.Ed. 835 (1946), In re Cook United, Inc., 117 B.R. 301 (Bankr.N.D.Ohio 1990), and In re Thomas, 84 B.R. 438 (Bankr.N.D.Tex.1988), aff'd in part, rev’d in part, 91 B.R. 731 (N.D.Tex), amended, 93 B.R. 475 (N.D.Tex.1988). Illinois’s conclusion is not supported by these cases. Illinois’s reliance on Cherry is inappropriate as authority for their position for two reasons. First, Cherry was not a bankruptcy case and thus did not involve the same issues or rights. In Cherry, the federal government sought to setoff a tax refund due the petitioner under the Agriculture Adjustment Act against a loan the petitioner owed to the Reconstruction Finance Corporation under 28 U.S.C. § 250(1). Cherry, 327 U.S. at 537, 538, 66 S.Ct. at 729, 730. In Cherry, no other creditors were involved, merely a federally-created corporation. In this case, other unsecured creditors are involved. Second, the Cherry court itself limited its conclusions to the facts of that case or similar circumstances in nonbankruptcy cases. Cherry, 327 U.S. at 539-40, 66 S.Ct. at 730. Because of these differences, Illinois’s reliance on Cherry is misplaced. Similarly, reliance on Cook for the proposition that mutuality exists between different governmental agencies is incorrect. Cook involved the issue of whether a government agency waived sovereign immunity under 11 U.S.C. § 106(a) when it filed a proof of claim in a bankruptcy case. Cook, 117 B.R. at 303. Neither § 106 nor the court’s opinion involve the question of mutuality. Therefore, Cook does not support Illinois’s mutuality argument. Finally, Thomas involved the right of setoff between two federal agencies under 7 C.F.R. § 13.1 which specifically authorized setoff of Agriculture Stabilization and Conservation Service payments “against debts of such person owing to any department or agency of the United States.” Thomas, 84 B.R. at 440. The regulation in Thomas explicitly permitted obligations owed by a nonbankrupt debtor to any governmental creditor (the Small Business Administration," }, { "docid": "18890779", "title": "", "text": "borrowed money from FmHA, and that when Debtors’ bankruptcy petition was filed on July 11, 1988, the Indebtedness amounted to $257,687.37. Therefore, the requirement that FmHA have a pre-petition claim against Debtors is satisfied. 3. Mutuality of Obligations Finally, § 553 requires “a mutual debt owing by such creditor to the debtor ... and a claim of such creditor against the debtor....” 11 U.S.C.A. § 553(a). The Bankruptcy Code does not define “mutual debt,” therefore other authority must be consulted. Collier’s treatise provides “[t]o be mutual, the debts must be in the same right and between the same parties standing in the same capacity.” 4 Collier on Bankruptcy, ¶ 553.04[2] (15th ed. 1988); see also In re Rinehart, 76 B.R. 746, 750 (Bankr.D.S.D.1987). This requirement is to be strictly construed. 4 Collier on Bankruptcy, ¶ 553.04[1] (15th ed. 1988); see also In re Rinehart, 76 B.R. 746, 750 (Bankr.D. S.D.1987). a. Are FmHA and ASCS/CCC the same entity for setoff purposes? This question arises because it is not readily apparent that FmHA, the entity holding a claim against Debtors, is the same as ASCS/CCC, the entity from which Debtors will potentially be eligible to receive money. The first question to be resolved in establishing mutuality of the obligations at issue is whether FmHA and ASCS/CCC stand in the same capacity visa-vis Debtors for setoff purposes. Numerous decisions are cited to support FmHA’s claim that FmHA and ASCS/CCC are the same parties for setoff purposes. Trustee points out, quite correctly, that not all of the cases cited by FmHA deal directly with this issue. Courts squarely addressing the issue and finding the requisite identity of capacity between FmHA and ASCS/CCC for setoff purposes have based their decisions on various authorities. In Waldron v. Farmers Home Admin., the Supreme Court case of Cherry Cotton Mills v. United States, 327 U.S. 536, 539, 66 S.Ct. 729, 730, 90 L.Ed. 835 (1946), is cited for the proposition that “Mgeneies of the United States government may make setoffs to collect debts owed to other United States agencies.” 75 B.R. 25, 27 (N.D.Tex.1987); see also In" }, { "docid": "13839213", "title": "", "text": "the same capacity.” 4 Collier on Bankruptcy, para. 553.04[2] (15th ed.1988). The fact that the United States operates through different agencies does not mean that each agency “stands in a different capacity.” See Cherry Cotton Mills v. United States, 327 U.S. 536, 66 S.Ct. 729, 90 L.Ed. 835 (1946); In re Sound Emporium, 48 B.R. 1 (Bankr.W.D.Tex. 1984), aff'd. 70 B.R. 22 (W.D.Tex.1987). Nevertheless, at least one court has held that the different U.S. agencies should not be considered the same party in reorganization cases. In In re Rinehart, 76 B.R. 746 (Bankr.D.S.D.1987), the court stated: “Serious bankruptcy reorganization policy concerns are also raised by this issue. To allow a governmental agency like the SBA, FmHA, or the like to piggyback under the guise of “government” and offset ASCS-CCC farm program payments may effectively deny farmers or ranchers a meaningful opportunity [to] attempt to reorganize in a Chapter 11, 12, or 13 setting.” Id. at 754; see also In re Hazelton, 85 B.R. 400, 405-06, 17 B.C.D. 680, 683 (Bankr.E.D. Mich.1988) (“Setoff is inconsistent with the purposes of chapter 12 and the rehabilitation of American farmers.”) However much this Court may be persuaded by this policy argument, the District Court decision in Sound Emporium, which held that the IRS and the U.S. Army are sufficiently identical to allow an offset, controls. The final statutory requirement is that the debts must be mutual, i.e. the debt owed by ASCS-CCC and the claim by FmHA must both be pre-petition obligations. There is no dispute that the claim by FmHA is a pre-petition claim. The contracts between ASCS-CCC and the Debtor were all entered into pre-petition. However, the contracts were executory on April 3, 1987 when the Debtor filed his petition; the Debtor had certain farming practices to implement and ASCS-CCC owed benefits to the Debtor. See In re Walat Farms, Inc., 69 B.R. 529 (Bankr.E.D.Mich.1987). The Court assumes for the purposes of this discussion that the Debtor’s plan provides for the assumption of this contract as no separate motion to assume the contract has been filed. See 11 U.S.C. sec. 365(d)(2); Bankruptcy" }, { "docid": "18903689", "title": "", "text": "it owes the debtor against the unpaid employment taxes. The debtor argues that the claims lack mutuality because the Department of Employment Security is not the Department of Mental Health and Mental Retardation and because the fourth quarter 1989 taxes were not payable until after the petition. II. The elements of setoff under 11 U.S.C. § 553 are: 1. a debt by the creditor to the debtor which arose prepetition; 2. a claim of the creditor against the debtor which arose prepetition; and 3. the debt and claim must be mutual obligations. Waldschmidt v. Columbia Gulf Transmission Co. (In re Fulghum Constr. Corp.), 23 B.R. 147, 151 (Bankr.M.D.Tenn.1982). Mutuality exists when each party owes something to the other in the same right and capacity. See 2 Norton, Bankr.L & Prac. § 33.05 (Callaghan 1987). Similarity of obligations is not required. Tradex, Inc. v. United States (In re IML Freight, Inc.), 65 B.R. 788, 793 (Bankr.D.Utah 1986). Obligations owing to and from departments of the same governmental entity can be mutual. See United States v. Rein hart, 88 B.R. 1014 (D.S.D.1988), aff'd in part and rev’d in part, 887 F.2d 165 (8th Cir.1989) (Small Business Administration and Agricultural Stabilization and Conservation Service — Commodity Credit Corporation have same capacity for setoff purposes); In re Thomas, 84 B.R. 438 (Bankr.N.D.Tex.1988), aff'd in relevant part, 91 B.R. 731 (N.D.Tex.1988) (stay lifted to allow Farmers Home Administration, Small Business Administration, Commodity Credit Corporation, and Internal Revenue Service to offset obligations); In re Sound Emporium, 70 B.R. 22 (W.D.Tex.1987) (IRS may set off taxes against amounts owed to debtor by U.S. Army); Tradex, Inc. v. United States (In re IML Freight, Inc.), 65 B.R. 788 (Bankr.D.Utah 1986) (allows IRS to set off tax penalties against shipping charges owed by United States to debtor); In re Julien Co., 116 B.R. 623 (Bankr.W.D.Tenn.1990) (Commodity Credit Corp. can set off obligation to debtor against debt owed by debtor to Agricultural Marketing Service.). The Department of Employment Security and the Department of Mental Health and Retardation are departments or agencies of the state. Premiums due under the Employment Security" }, { "docid": "11716915", "title": "", "text": "facts of that case or similar circumstances in nonbankruptcy cases. 327 U.S. at 539^10, 66 S.Ct. at 730. 151 B.R. at 892 (citations omitted). As the court in Shugrue adds, in Cherry the government “sought neither immunity nor priority.” 164 B.R. at 842. Thus, the decision in Cherry, like a decision to find no mutuality between different government agencies, avoids disruption of “the prime bankruptcy policy of equality of distribution among creditors.” Id. (quoting Jarboe, 137 B.R. at 847). To summarize, this Court finds that mutuality does not exist between different government agencies for purposes of § 553 of the Code. Accordingly, one government agency may not set off the claims and debts of another in a bankruptcy proceeding. IT IS SO ORDERED. . In re Donco Industries, Inc., No. 92-49331-NS (Bankr.N.D.Cal.1992). . Pursuant to an order dated August 24, 1994, Westamerica Bank (\"Westamerica\") was substituted for Donco to pursue litigation on behalf of Donco’s Chapter 7 bankruptcy estate. . The bankruptcy case was converted to a case under Chapter 7 on September 22, 1993. . In an order dated June 11, 1994, the Court granted the United States' motion to dismiss the subcontractors’ actions, mooting any potential offset claims by the United States relating to these claims. . This order addresses only the United States' motion regarding setoff, not its motion regarding recoupment. To the extent the latter claim survives and the United wishes to pursue it, the United States shall rebrief the issue, as directed by the Court. .Even if this Court were to hold that there is mutuality between different government agencies for purposes of setoff under § 553, the EPA and the FCA claims appear to be unlikely candidates for setoff on the facts of this case. The EPA claim appears subordinate by way of stipulation, if not as a matter of law, to other unsecured claims against the Donco estate. The FCA claim appears to collapse with the dismissal of the subcontractors’ claims. . The United States would, of course, have to prove any such claims as a precondition of offset and/or recoupment. . Compare," }, { "docid": "2571896", "title": "", "text": "when no payments were due and owing on the filing date; and it relied on Cherry Cotton Mills, which did not arise in a bankruptcy setting. In re Rinehart, 76 B.R. 746, 751-52 (Bankr.D.S.D.1987), aff'd, 88 B.R. 1014 (D.S.D.1988), aff'd in part, rev’d in part, 887 F.2d 165 (8th Cir.1989); see also Matter of Mehrhoff, 88 B.R. 922, 930 (Bankr.S.D.Iowa 1988) (“[Luther arose] under section 64(a)(5) of the Bankruptcy Act which is the predecessor of 11 U.S.C. § 507(a).... [Neither section 64(a) nor section 507 entails the ‘mutuality’ consideration found in the offset sections.” (internal citation omitted)). We note, moreover, that the policies underlying the reorganization provisions — which aim to give a petitioner the opportunity to begin anew — differ fundamentally from those driving the liquidation provisions — which simply attempt to salvage as much money as possible for creditors. See Rinehart, 76 B.R. at 754. We therefore conclude that Luther does not bind our determination of the mutuality question. This issue has apparently not yet been addressed by any of the Courts of Appeal. It has, however, been considered by several bankruptcy and district courts, which have divided on the issue. In our judgment, the most thorough and thoughtful of these opinions is In re Hancock, 137 B.R. 835 (Bankr.N.D.Okla.1992), which held that no mutuality exists between government agencies in this context. See also In re Ionosphere Clubs, Inc., 164 B.R. 839, 842-43 (Bankr.S.D.N.Y.1994); In re Pyramid Indus., Inc., 170 B.R. 974, 982-84 (Bankr.N.D.Ill.1994); Mehrhoff, 88 B.R. at 930-34. But see In re Gibson, 176 B.R. 910, 915-16 (Bankr.D.Or.1994); Matter of Butz, 154 B.R. 541 (S.D.Iowa 1989); In re Mohar, 140 B.R. 273, 277 (Bankr.D.Mont.1992); In re Julien Co., 116 B:R. 623, 624-25 (Bankr.W.D.Tenn.1990); In re Thomas, 84 B.R. 438, 440 (Bankr.N.D.Tex.1988), aff'd in part, rev’d in part, 91 B.R. 731 (N.D.Tex.1988); Small Business Admin. v. Rinehart, 88 B.R. 1014, 1016 (D.S.D.1988), aff'd in part, rev’d in part, 887 F.2d 165 (8th Cir.1989). Hancock involved an effort by the SBA to offset a tax refund owed by the IRS to the Hancocks against a loan from the SBA" }, { "docid": "18890781", "title": "", "text": "re Thomas, 84 B.R. at 440 (N.D.Tex.1988). Another source of authority for such finding was recognized in In re Ratliff, 79 B.R. 930 (D.Colo.1987). The Ratliff court found FmHA’s right to offset ASCS/CCC payments within the regulations set forth at 7 C.F.R. § 13.4. Id. at 933. These regulations essentially provide that “payments due from CCC must be setoff against any other debt owed by the recipient to any agency of the Department of Agriculture.” Id. Debtors, Trustee and the Amicus contend that FmHA and CCC do not stand in the same capacity as is necessary for set-off. Supporting this contention, the Butz court held FmHA and ASCS were not “mutual” entities because of the differences in their missions, staffs, administrators and budgets. In re Butz, 86 B.R. 595, 602 (Bankr.S.D.Iowa 1988). However, no authority was cited for this conclusion. Id. at 602. Brooks Farms involved the question of setoff of CCC’s claim against debt owed CCC. 70 B.R. at 369. Thus, the question presented herein was not addressed in that case. Nor was the instant question before the Braniff Airways court, or the Brendern Enterprises court. In re Braniff Airways, Inc., 42 B.R. 443 (Bankr.N.D.Tex. 1984); Brendern Enters., Inc. v. Micro-Acoustics Corp. (In re Brendern Enters., Inc.), 12 B.R. 458 (Bankr.E.D.Pa.1981). In both those cases, the necessity for identity of capacity was set forth, but its existence between FmHA and ASCS/CCC was not at issue. 42 B.R. at 443; 12 B.R. at 458. One of the cited cases, In re Rinehart, 76 B.R. 746 (D.S.D.1987), was appealed. Upon appeal, the district court examined the decision of the Thomas court, the Cherry Cotton Mills case, and the regulations set forth at 7 C.F.R. § 13.4. United States ex rel. Small Bus. Admin. v. Rinehart, 88 B.R. 1014, 1016-17 (D.S.D.1988). Ultimately, the district court disagreed with the bankruptcy court and found that federal agencies are the same entities for setoff purposes. Id. at 1016. The weight of authority appears to allow setoff among the various agencies of the Department of Agriculture. In light of the foregoing, this Court is persuaded that" }, { "docid": "1510667", "title": "", "text": "all of its agencies, represented by the GSA in the present case, should be deemed a single creditor. The Government asserts that all government claims and obligations are mutual in relation to one another, regardless of whether they are incurred by different agencies within the government. The Debtor argues that each agency is an independent entity and therefore interagency setoff should not be permitted. In general, there is a divergence of authority as to whether mutuality exists among governmental agencies for purposes of setoff. A number of courts have found that debts and claims incurred or generated by different governmental departments are mutual. See United States ex rel. Small Business Admin. v. Rinehart, 88 B.R. 1014 (D.S.D. 1988), aff'd in part, rev’d in part, 887 F.2d 165 (8th Cir.1989); In re Britton, 83 B.R. 914 (Bankr.E.D.N.C.1988); In re Schons, 54 B.R. 665 (Bankr.W.D.Wash.1985); In re Sound Emporium, Inc., 48 B.R. 1 (Bankr.W.D.Tex. 1984), aff'd, 70 B.R. 22 (W.D.Tex.1987). However, these cases either contain no analysis of the issue or rely upon the Supreme Court case of Cherry Cotton Mills, Inc. v. United States, 327 U.S. 536, 66 S.Ct. 729, 90 L.Ed. 835 (1946). In Cherry, the federal government was permitted to set off a tax refund owed to the petitioner under the Agricultural Adjustment Act against money that the petitioner owed the Reconstruction Finance Corporation on a note. Although that factual scenario is somewhat analogous to the case at bar, it is clearly distinguishable. As the court explained in Lakeside, 151 B.R. at 892: In Cherry, no other creditors were, involved, merely a federally-created corporation. In this case, other unsecured creditors are involved. Second, the Cherry court itself limited its conclusions to the facts of that case or similar circumstances in nonbankruptcy cases. The government in Cherry “sought neither immunity nor priority.” Cherry, 327 U.S. at 540, 66 S.Ct. at 712. In contrast, here, the GSA seeks priority over Eastern’s other unsecured creditors through the assertion of its setoff rights. This would clearly disrupt “the prime bankruptcy policy of equality of distribution among creditors.” Jarboe v. United States Small Business" }, { "docid": "4778454", "title": "", "text": "stabilization. The CCC is an agency of the United States. 15 U.S.C. § 714. The Agricultural Marketing Service is a cotton division of the United States Department of Agriculture. 7 U.S.C. §§ 54-55. Clearly, the two government agencies are not the same. However, there appears to be an exception to the mutuality requirement when the federal government is involved. In reversing the Bankruptcy Court, the District Court in U.S. v. Rinehart, 88 B.R. 1014, 1016 (D.S.D.1988), aff'd in part and rev’d in part, SBA v. Rinehart, 887 F.2d 165 (8th Cir.1989), concluded “that in deciding whether federal agencies stand in the same capacity for section 553 offsets, there is no authority for distinguishing between the capacity of parties in relation to each other outside of bankruptcy and that capacity following the filing of a bankruptcy petition.” See also In re Thomas, 84 B.R. 438, 440 (Bankr.N.D.Tex. 1988), aff'd in part, rev’d in part, 91 B.R. 731 (D.N.D.Tex.1988) (the appeal did not involve the issue of mutuality). Setoff under § 553 “recognizes setoff rights existing prior to a bankruptcy filing: U.S. v. Rine-hart, 88 B.R. at 1016. As both the Rinehart and Thomas Courts discussed, “[t]he right of the Federal Government to setoff amounts due to it from amounts which it is obligated to pay has been long recognized.” In re Thomas, 84 B.R. at 439, citing, Gratiot v. U.S., 40 U.S. (15 Pet.) 336, 10 L.Ed. 759 (1841); see also U.S. v. Rinehart, 88 B.R. at 1016, citing Gratiot and Cherry Cotton Mills v. U.S., 327 U.S. 536, 539, 66 S.Ct. 729, 730, 90 L.Ed. 835 (1946). These authorities recognize that each federal entity is a “part of the Government.” Cherry Cotton Mills v. U.S., 327 U.S. at 538, 66 S.Ct. at 729-730. See also S.B.A. v. McClellan, 364 U.S. 446, 450, 81 S.Ct. 191, 194, 5 L.Ed.2d 200 (1960). Further, the Rinehart Court pointed to Section 13.4(f) of Title 7 of the Code of Federal Regulations which provides for set-off by CCC and ASCS: Setoff shall be made and appropriate notification thereof forwarded to the debtor ... where: (f)" }, { "docid": "11716914", "title": "", "text": "Mills, Inc. v. United States, 327 U.S. 536, 66 S.Ct. 729, 90 L.Ed. 835 (1946), on which the United States and many of the courts finding mutuality between different government agencies rely, is not inconsistent. In Cherry, the federal government was permitted to set off a tax refund owed to the petitioner under the Agricultural Adjustment Act against money that the petitioner owed the Reconstruction Finance Corporation on a note. 327 U.S. 536, 66 S.Ct. 729, 90 L.Ed. 835. As the court explained in Lakeside, Cherry does not control the disposition of the issue presented: First, Cherry was not a bankruptcy case and thus did not involve the same issues or rights. In Cherry, the federal government sought to setoff a tax refund due the petitioner under the Agriculture Adjustment Act against a loan the petitioner owed the Reconstruction Finance Corporation under 28 U.S.C. § 250(1). In Cherry, no other creditors were involved, merely a federally-created corporation. In this case, other unsecured creditors are involved. Second, the Cherry court itself limited its conclusions to the facts of that case or similar circumstances in nonbankruptcy cases. 327 U.S. at 539^10, 66 S.Ct. at 730. 151 B.R. at 892 (citations omitted). As the court in Shugrue adds, in Cherry the government “sought neither immunity nor priority.” 164 B.R. at 842. Thus, the decision in Cherry, like a decision to find no mutuality between different government agencies, avoids disruption of “the prime bankruptcy policy of equality of distribution among creditors.” Id. (quoting Jarboe, 137 B.R. at 847). To summarize, this Court finds that mutuality does not exist between different government agencies for purposes of § 553 of the Code. Accordingly, one government agency may not set off the claims and debts of another in a bankruptcy proceeding. IT IS SO ORDERED. . In re Donco Industries, Inc., No. 92-49331-NS (Bankr.N.D.Cal.1992). . Pursuant to an order dated August 24, 1994, Westamerica Bank (\"Westamerica\") was substituted for Donco to pursue litigation on behalf of Donco’s Chapter 7 bankruptcy estate. . The bankruptcy case was converted to a case under Chapter 7 on September 22, 1993." }, { "docid": "18801032", "title": "", "text": "stands for the proposition that government agencies, even when acting in the capacity of private commercial lenders, may be considered as a single entity for purposes of setoff and counterclaims. Increasingly, courts have extended Cherry to apply to setoffs in the bankruptcy context. See, e.g., Thomas, 84 B.R. at 440 (relying on Cherry); In re Julien Co., 116 B.R. 628, 624 (Bankr.W.D.Tenn.1990) (holding that mutuality exists between the Commodity Credit Corporation and the Agricultural Marketing Service based upon Thomas and Cherry)-, Rinehart, 88 B.R. at 1016 (relying on Thomas and Cherry). These courts found no authority for distinguishing between setoffs within bankruptcy and setoffs outside the bankruptcy context. Rinehart, 88 B.R. at 1016. If such a distinction is made, debtors might attempt to improve their position visa-vis a government agency merely by filing a bankruptcy petition. Thomas, 84 B.R. at 440. As a result, “there appears to be an exception to the mutuality requirement when the federal government is involved.” Julien, 116 B.R. at 624. Thus this line of authority holds that mutuality for setoff is present in the sense that both agencies are part of the federal government. Id. at 626. However, some courts have concluded that setoff in bankruptcy cases should be treated differently than setoff in other contexts. “[T]he federal law of bankruptcy presents different and unique considerations, as payments made by one government agency to another during a bankruptcy proceeding may operate to the detriment of other creditors.” Bosarge v. United States Dept. of Educ., 5 F.Bd 1414, 1419 n. 7 (11th Cir.1998) (noting the split in authority). Bankruptcy is generally oriented toward the prevention of preferential treatment of creditors. Sampsell v. Imperial Paper & Color Corp., 313 U.S. 215, 219, 61 S.Ct. 904, 907, 85 L.Ed. 1293 (1941); Boston & Maine, 785 F.2d at 566; Ionosphere Clubs, 164 B.R. at 843; Lakeside, 151 B.R. at 893; Martin, 130 B.R. at 939; IML Freight, 65 B.R. at 791. Treating each governmental department or agency as a separate creditor advances the bankruptcy policy of treating similarly situated creditors alike. “[T]he operation of this privilege of setoff has" }, { "docid": "18903690", "title": "", "text": "hart, 88 B.R. 1014 (D.S.D.1988), aff'd in part and rev’d in part, 887 F.2d 165 (8th Cir.1989) (Small Business Administration and Agricultural Stabilization and Conservation Service — Commodity Credit Corporation have same capacity for setoff purposes); In re Thomas, 84 B.R. 438 (Bankr.N.D.Tex.1988), aff'd in relevant part, 91 B.R. 731 (N.D.Tex.1988) (stay lifted to allow Farmers Home Administration, Small Business Administration, Commodity Credit Corporation, and Internal Revenue Service to offset obligations); In re Sound Emporium, 70 B.R. 22 (W.D.Tex.1987) (IRS may set off taxes against amounts owed to debtor by U.S. Army); Tradex, Inc. v. United States (In re IML Freight, Inc.), 65 B.R. 788 (Bankr.D.Utah 1986) (allows IRS to set off tax penalties against shipping charges owed by United States to debtor); In re Julien Co., 116 B.R. 623 (Bankr.W.D.Tenn.1990) (Commodity Credit Corp. can set off obligation to debtor against debt owed by debtor to Agricultural Marketing Service.). The Department of Employment Security and the Department of Mental Health and Retardation are departments or agencies of the state. Premiums due under the Employment Security law are \"deemed to be taxes due to the State of Tennessee.” TENN.CODE ANN. § 50-7-204(a)(3). Although the debtor was instructed to invoice the state through its Department of Health and Mental Retardation, the debtor’s bid for the roofing job constituted a contract with the State of Tennessee when it was accepted by the Department of General Services, Purchasing Division. The obligations between the debtor and the State of Tennessee are mutual. III. The State of Tennessee’s tax claim is a prepetition claim. The fourth quarter taxes were incurred prepetition when the debtor paid its employees’ wages. See TENN.CODE ANN. § 50-7-401. The claim became payable a month later on January 31, 1990. That the claim matured or became payable after the petition does not frustrate the right to payment of taxes that arose prepetition at the time of payment of wages. This outcome is consistent with the Supreme Court’s broad interpretation of “claim.\" See Pennsylvania Dep’t of Public Welfare v. Davenport, — U.S. —, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990). In re Howell," }, { "docid": "221718", "title": "", "text": "be elevated to secured status, notwithstanding their statutory unsecured status. At the same time, though, other unsecured creditors would retain their unsecured status. Thus, the Departments of Revenue and Employment Security would be awarded an artificial preference. Second, because of this preference, the Department of Revenue and Department of Employment Security would be allowed 100% of their claims, in contrast to the pro rata share to which they would ordinarily be entitled. The money paid to the Department of Revenue and Department of Employment Security, which would normally have gone into the bankruptcy estate, would never make it into the estate. Therefore, less money would be available for distribution to other unsecured creditors and ultimately, their pro rata shares would be less. Allowing unequal treatment between similarly situation creditors and allowing the Department of Revenue and Department of Employment Security to setoff the funds due Lakeside from the Department of Public Aid would violate principles of equity and would not achieve the consistent treatment required by the Bankruptcy Code. Finally, the court is aware that a number of cases presented in this appeal which address the issue have treated governmental departments as mutual. See In re Sound Emporium, Inc., 48 B.R. 1 (Bankr.W.D.Tex.1984) (court considered Internal Revenue Service and Army mutual without discussion), aff'd, 70 B.R. 22 (W.D.Tex.1987); In re Schons, 54 B.R. 665 (Bankr.W.D.Wash.1985) (court found Internal Revenue Service and Agriculture Stabilization and Conservation Service mutual by simply referring to the agencies collectively as “United States” without discussion); In re Britton, 83 B.R. 914 (Bankr.E.D.N.C.1988) (court found Farmers Home Administration and Commodity Credit Corporation mutual by relying on Cherry); In re Thomas, 84 B.R. 438 (Bankr.N.D.Tex.1988) (court found Farmers Home Administration, Small Business Administration, and Commodity Credit Corporation mutual by relying on Cherry and Sound), aff'd in part, rev’d in part, 91 B.R. 731 (N.D.Tex.), amended, 93 B.R. 475 (N.D.Tex.1988); In re Hazelton, 85 B.R. 400 (Bankr.E.D.Mich.1988) (court found Farmers Home Administration and Agriculture Stabilization and Conservation Service mutual without discussion), rev’d on other grounds, 96 B.R. 111 (E.D.Mich.1988); United States ex rel. Small Business Admin. v. Rinehart, 88" }, { "docid": "221712", "title": "", "text": "Farmers Home Administration, Commodity Credit Corporation, and Internal Revenue Service in Thomas) to be setoff against Agriculture Stabilization and Conservation Service payments owed to that debtor. Thomas, 84 B.R. at 440. Conversely, neither the Illinois statute creating setoff in this case, nor § 553 and supporting definitions, explicitly state that funds owed to Lakeside by the Department of Public Aid may be setoff against any obligations Lakeside owes to another state department or agency. Therefore, Thomas does not support mutuality in this case. In summary, Illinois’s reliance on Cherry, Cook, and Thomas is misplaced. The court concludes the three departments are each separate creditors for purposes of § 553, and not the same parties for establishing mutuality for purposes of setoff under § 553. The court has considered other elements of mutuality before deciding that the three departments are not mutual within § 553. The Department of Revenue, Department of Employment Security, and Department of Public Aid are related, but they are not identical for purposes of § 553. The different state agencies have separate identities and interests, see Jarboe v. United States Small Business Admin. (In re Hancock), 137 B.R. 835, 846 (Bankr.N.D.Okla.1992) (idle to pretend that Federal agencies have no separate identities); In re Julien Co., 116 B.R. 623 (Bankr.W.D.Tenn.1990) (two government agencies are not the same), which serve to distinguish them for purposes of bankruptcy. The departments possess different rights, claims, privileges, powers, and relationships with the debtor. Further, their administrative structures are distinct: budgets, staffs, services, functions, and supervising authority. Mutuality requires the parties to stand in the same capacity, right, and kind. Boston, 785 F.2d at 566; Martin, 130 B.R. at 939-40. The Departments of Revenue, Employment Security, and Public Aid do not satisfy these conditions. Each department exhibits distinct characteristics administratively, and more importantly, each has distinct functions with regard to Lakeside. Likewise, the departments do not hold the same rights as against Lakeside. The Department of Revenue and Department of Employment Security are similar in that they levy and collect taxes, and insure that Illinois’s revenue code is followed. However, the Department of" }, { "docid": "221719", "title": "", "text": "a number of cases presented in this appeal which address the issue have treated governmental departments as mutual. See In re Sound Emporium, Inc., 48 B.R. 1 (Bankr.W.D.Tex.1984) (court considered Internal Revenue Service and Army mutual without discussion), aff'd, 70 B.R. 22 (W.D.Tex.1987); In re Schons, 54 B.R. 665 (Bankr.W.D.Wash.1985) (court found Internal Revenue Service and Agriculture Stabilization and Conservation Service mutual by simply referring to the agencies collectively as “United States” without discussion); In re Britton, 83 B.R. 914 (Bankr.E.D.N.C.1988) (court found Farmers Home Administration and Commodity Credit Corporation mutual by relying on Cherry); In re Thomas, 84 B.R. 438 (Bankr.N.D.Tex.1988) (court found Farmers Home Administration, Small Business Administration, and Commodity Credit Corporation mutual by relying on Cherry and Sound), aff'd in part, rev’d in part, 91 B.R. 731 (N.D.Tex.), amended, 93 B.R. 475 (N.D.Tex.1988); In re Hazelton, 85 B.R. 400 (Bankr.E.D.Mich.1988) (court found Farmers Home Administration and Agriculture Stabilization and Conservation Service mutual without discussion), rev’d on other grounds, 96 B.R. 111 (E.D.Mich.1988); United States ex rel. Small Business Admin. v. Rinehart, 88 B.R. 1014 (D.S.D.1988) (court found Small Business Administration, Agriculture Stabilization and Conservation Service, and Commodity Credit Corporation mutual by relying on Cherry), aff'd in part, rev’d in part, 887 F.2d 165 (8th Cir.1989); In re Bennett Co., 118 B.R. 564 (Bankr.M.D.Tenn.1990) (court found Department of Mental Health and Mental Retardation and Department of Employment Security mutual by citing to Rinehart, Thomas, Sound, Julien as authority that different agencies could be mutual); In re Gore, 124 B.R. 75 (Bankr.E.D.Ark.1990) (court found Agriculture Stabilization and Conservation Service and Small Business Administration mutual by relying on Cloverleaf and Rinehart); In re Stall, 125 B.R. 754 (Bankr.S.D.Ohio 1991) (court found Department of Education and IRS mutual by citing to Thomas and Sound). Yet, most of these cases place reliance on Cherry. As discussed above, reliance on Cherry is misplaced. Thus, while there is precedent for the argument that different governmental agencies are the same, there is little sound reasoning or support for such decisions. Contrarily, the several cases which have found that mutuality is lacking are coherent, reasoned opinions." }, { "docid": "18890780", "title": "", "text": "a claim against Debtors, is the same as ASCS/CCC, the entity from which Debtors will potentially be eligible to receive money. The first question to be resolved in establishing mutuality of the obligations at issue is whether FmHA and ASCS/CCC stand in the same capacity visa-vis Debtors for setoff purposes. Numerous decisions are cited to support FmHA’s claim that FmHA and ASCS/CCC are the same parties for setoff purposes. Trustee points out, quite correctly, that not all of the cases cited by FmHA deal directly with this issue. Courts squarely addressing the issue and finding the requisite identity of capacity between FmHA and ASCS/CCC for setoff purposes have based their decisions on various authorities. In Waldron v. Farmers Home Admin., the Supreme Court case of Cherry Cotton Mills v. United States, 327 U.S. 536, 539, 66 S.Ct. 729, 730, 90 L.Ed. 835 (1946), is cited for the proposition that “Mgeneies of the United States government may make setoffs to collect debts owed to other United States agencies.” 75 B.R. 25, 27 (N.D.Tex.1987); see also In re Thomas, 84 B.R. at 440 (N.D.Tex.1988). Another source of authority for such finding was recognized in In re Ratliff, 79 B.R. 930 (D.Colo.1987). The Ratliff court found FmHA’s right to offset ASCS/CCC payments within the regulations set forth at 7 C.F.R. § 13.4. Id. at 933. These regulations essentially provide that “payments due from CCC must be setoff against any other debt owed by the recipient to any agency of the Department of Agriculture.” Id. Debtors, Trustee and the Amicus contend that FmHA and CCC do not stand in the same capacity as is necessary for set-off. Supporting this contention, the Butz court held FmHA and ASCS were not “mutual” entities because of the differences in their missions, staffs, administrators and budgets. In re Butz, 86 B.R. 595, 602 (Bankr.S.D.Iowa 1988). However, no authority was cited for this conclusion. Id. at 602. Brooks Farms involved the question of setoff of CCC’s claim against debt owed CCC. 70 B.R. at 369. Thus, the question presented herein was not addressed in that case. Nor was the" }, { "docid": "2571897", "title": "", "text": "Appeal. It has, however, been considered by several bankruptcy and district courts, which have divided on the issue. In our judgment, the most thorough and thoughtful of these opinions is In re Hancock, 137 B.R. 835 (Bankr.N.D.Okla.1992), which held that no mutuality exists between government agencies in this context. See also In re Ionosphere Clubs, Inc., 164 B.R. 839, 842-43 (Bankr.S.D.N.Y.1994); In re Pyramid Indus., Inc., 170 B.R. 974, 982-84 (Bankr.N.D.Ill.1994); Mehrhoff, 88 B.R. at 930-34. But see In re Gibson, 176 B.R. 910, 915-16 (Bankr.D.Or.1994); Matter of Butz, 154 B.R. 541 (S.D.Iowa 1989); In re Mohar, 140 B.R. 273, 277 (Bankr.D.Mont.1992); In re Julien Co., 116 B:R. 623, 624-25 (Bankr.W.D.Tenn.1990); In re Thomas, 84 B.R. 438, 440 (Bankr.N.D.Tex.1988), aff'd in part, rev’d in part, 91 B.R. 731 (N.D.Tex.1988); Small Business Admin. v. Rinehart, 88 B.R. 1014, 1016 (D.S.D.1988), aff'd in part, rev’d in part, 887 F.2d 165 (8th Cir.1989). Hancock involved an effort by the SBA to offset a tax refund owed by the IRS to the Hancocks against a loan from the SBA on which the Hancocks had defaulted. As in this case, the administrative offset was properly carried out under the federal regulations and the payment was made within ninety days prior to the filing of the debtor’s bankruptcy petition. The debtors then sought to have the transfer set aside as a voidable preference under 11 U.S.C. § 547. As in this case, in Hancock, the “basic issue involve[d] a collision between avoidance of preferential transfers under 11 U.S.C. § 547 and setoff under 11 U.S.C. § 553.” Hancock, 137 B.R. at 837. After reviewing the legislative history of the relevant code provisions, the Hancock court concluded: “[S]etoff’ should be construed so as to minimize its interference with § 547. This is best accomplished by giving “setoff’ its traditional, rather narrow meaning. Where a transaction actually appears to be “somewhat different” from the general run of preferences, in that it involves a mere netting-out of counterclaims or reconciliation of accounts and not a transfer of money or property, then such transaction may be considered a “setoff’ within" } ]

[ { "docid": "22393999", "title": "", "text": "this rejection, however, we make the observation that the ground of rejection seems to use somewhat confused, that it is unclear whether the affidavit was deemed truly irrelevant to the patentability of the claimed compounds, which alone were the “subject matter sought to be patented,” and unclear to what extent, if any, obviousness of the compounds was predicated on the contention that the applicant should claim his invention as a process, which is the only way a “use” can be claimed. 35 U.S.0.100 (b) and 101. The last sentence of the above quotation seems to involve a non sequitur. The examiner who made the above rejection next filed a very long and very argumentative Examiner’s Answer, which reverts to the theme that appellant’s “contribution” was not in the novel compounds claimed per se, “but rather in the newly discovered properties which are advantageous for.a particular utility.” Said the examiner: Such contribution may properly be protected by claims to the mode of employing the compounds for their unexpected novel use, but does not support claims covering compounds which are structurally obvious and which also exhibit a family of properties and characteristics common to, and not differing significantly from, those of the homologue known and available to the prior art. An unexpected difference in a single property should not be adequate to support a claim for a novel, but obvious, homologue, which claim will dominate all properties and uses of the homologue, including those differing only in the expected manner from the known product. This passage being only an expression of what might be termed the background sentiments of the examiner, the actual rejection was legally predicated by him on section 103 and its essence is contained in the following quotation: In view of the known general relationship of homology, the disclosure of an organic chemical structure immediately suggests and renders obvious to the organic chemist of ordinary skill its homologues, as organic compounds. The homologous compound being obvious it is not seen how it can become less obvious, as a compound, merely by discovering that in addition to the community of" } ]

[ { "docid": "11244091", "title": "", "text": "allowable over a clear disclosure of the compound in its previously known amorphous form. “Claims 5 to 8, inclusive, to the process, call for crystallizing the hygroscopic salt from a lower aliphatic alcohol. The reference discloses precipitation of the salt from a lower aliphatic alcohol solution with isopropyl ether as a part of the concentration and purification technique there described, but does not disclose the step of ‘crystallizing.’ Further, the reference is not concerned with a process of making the hygroscopic material nonhygroscopic. However, in essence, these claims are considered to be for nothing more than the broad concept of crystallizing out the salt from an alcohol. The use of alcohol is old practice for crystallizing, as the Examiner points out, and since the claims teach the art no new process, at least one that would not be obvious to the skilled worker in this field, for the crystallization of calcium pantothenate, it is our opinion that the claims are unpatentable. “The claims are broadly drawn and we agree with the Examiner that the process step defined is broadly old. No invention is seen in its broad application to a specific compound.” At one point in their brief appellants seem to question the accuracy of some of the statements of fact made in the decisions below, but we do not find them challenged in the reasons of appeal, and, at any rate, as is pointed out by the Solicitor for the Patent Office, “* * *' appellants did not request that these statements be supported by an affidavit, as they were entitled to do under Patent Office rule 66, 35 U.S.C.A. Appendix and did not present any factual evidence to controvert them.” They are not, therefore, in a position to have any question of such accuracy considered here. In re Lewis, 96 F.2d 1009, 25 C.C.P.A., Patents, 1273. So far as the reference article is concerned, it concededly did not relate to a crystallized product, but to an amorphous product produced from what had previously been named “panothenic acid,” which in turn had been derived from liver. As we understand" }, { "docid": "7090554", "title": "", "text": "SMITH, Judge. The principal issues for decision are: (1) whether the compounds defined in appealed claims 17 through 22 would have been obvious to one of ordinary skill in the art within the meaning of 35 U. S.C. § 103; and (2) whether claim 25 is an improper “product-by-process” claim. The Patent Office Board of Appeals affirmed the examiner’s rejection of the claims in issue presented in appellants’ application. The Invention Appellants’ claimed invention is directed to condensation products of substituted or unsubstituted diphenylamine-4-diazonium salts with formaldehyde. The condensation products, which are polyfunctional diazonium salts, are obtained as phosphates free from metal salts. Appellants’ specification admits that certain polyfunetional diazonium salts are known to the prior art. It states: It is known to the art to prepare polyfunctional diazonium salts by condensing diphenylamine-4-diazonium salts with carbonyl compounds in the presence of mineral acids. In most instances, condensation of diazonium salts with formaldehyde is effected in sulfuric acid of high concentration; hydrochloric acid has also been used as a condensation medium. Isolation of the products produced by condensation in sulfuric acid is accomplished according to a variety of methods, e. g. by precipitation as zinc chloride double salt, as an acid sulfate, or as a diazo sulfonate. The isolation of the condensation products produced in hydrochloric acid has not been specifically described. Appellants urge that the known methods of isolation of the diazonium condensation products considerably limit the technical application of these compounds. According to appellants’ method, substituted or unsubstituted diphenylamine-4-diazonium salts of acids having a boiling point below 150° C. are condensed with formaldehyde in a phosphoric acid condensation medium. Either before or after condensation, the anions of the original diphenylamine-4-diazonium salts are removed from the reaction mixture. The polyfunctional diazonium phosphates thus formed are precipitated from the reaction mixture, after dilution of the mixture if necessary, by means of organic solvents, in which the phosphates are either insoluble or soluble with some difficulty. After precipitation, the diazonium phosphates are separated by filtration and dried. Appellants point out that it is not necessary to effect the actual condensation of the" }, { "docid": "21372400", "title": "", "text": "was acted with [upon by] penicillinase.” “Peni-cin” is depicted as having the formula: Arnstein et al. disclose suggested pathways of penicillin biosynthesis. Set forth as a possible reaction mechanism is a process which starts with cysteinylvaline, the final step in the penicillin biosynthe-sis being postulated as consisting of the acylation of a compound having the structural formula: The examiner rejected claims 2 and 4 as “lacking invention” over Kuhne or Sakaguchi et al. or Arnstein et al., all of which wei*e considered to “teach the concept of 6-aminopenicillanic acid which is the compound that is instantly being claimed.” The examiner stated that the presence of 6-APA could be readily appreciated by one skilled in the art in view of the cited references. The patentability of isolating 6-APA from the fermentation liquor obtained in the biosynthesis of penicillins was said by the examiner to have been recognized by the Patent Office since appellants’ parent application, serial No. 750,057, of the instant application serial No. 833,680 has matured into US patent No. 2,941,995 and the claims of the parent application “are directed to a method of recovering the 6-aminopeni-cillanie acid from an aqueous solution.” In affirming the examiner's rejection the board stated: “In each of these publications [Sakaguchi et al., Kuhne and Arn-stein et al.] the compound claimed was described by its structural formula which is the means most commonly used by chemists to accurately describe an organic chemical. From the publications a chemist would be informed of, and understand the exact nature of the claimed compound and its relationship to valuable compounds of the prior art.” Appellants contend that they have produced a compound which was not available before and have made possible “new penicillins both for commercial exploitation and for extensive research work.” They urge that they were the first to produce, isolate and purify solid 6-APA and to determine its properties. It is argued that the prior art had depicted the structural formula of 6-APA, not to describe an alleged existing compound, but rather as a possible merely theoretical' intermediate which might exist along a suggested pathway of reaction" }, { "docid": "11800287", "title": "", "text": "point, the Italian patent clearly supports the belief of the prior art that it was necessary first to produce calcium beta alanate before reaction with pantoyl lactone to produce calcium pantothenate. Since the reference disclosure is clear and specific in teaching the separate two-stage reaction, the Patent Office position has to be based at least in part on the assumption that looking at the disclosure as a whole, there would be no reason not to conclude that the process could be performed in a single stage. This is, in effect, a conclusion, which must have some support,, either hi logic or in cold, hard facts. No evidence has been submitted to support it, and to us it seems more logical and reasonable to infer that one teaching a chemical reaction process would set out the least number of reactions thought necessary to accomplish the desired objective. Thus, one skilled in the art who reads the teaching would have to presume that if the reactants were not combined in the manner shown, some adverse side reaction or no reaction at all would occur. With these considerations in mind we must hold that, on the record before us, the Patent Office has failed to present enough evidence to support a prima facie case and the conclusion of obviousness must fall. The decision of the Board of Appeals must, therefore, be reversed. Serial No. 237,339, filed November 13, 1962. Italian patent 420,229, granted April 18, 1947. German Auslegesehrift 1,041,967, published October 30, 1958. We note that the following statement appears in the later-published German reference: It is known to prepare calcium pantothenate by condensation of [pantoyl lactone] with calcium B-alanate in alcohol . . .; This is an apparent reference to the teaching of the Italian patent and is worth considering as a more contemporaneous indication of what the art felt was necessary to-produce calcium pantothenate. It appears to lend support to appellant’s argument that-the art thought it necessary to first prepare the calcium beta alanate. The position we have taken makes it unnecessary to consider appellant’s assertion of unexpected results. We will," }, { "docid": "18920743", "title": "", "text": "carbamates and in no way consider the properties of the claimed chloroformates. Under such circumstances we find the affidavits insufficient because they do not relate to the compounds in issue. The properties of the carbamates are inherent in those compounds, and not in any of the reactants from which they may have been prepared. See our concurrent decision in In re Druey 50 CCPA 1538, 319 F. 2d 237, 138 USPQ 39. The rejection of claims 15-17 is affirmed. The Cusic reference discloses a process for preparing carbamac acid esters (carbamates) by heating an aryl chloroformate with an alkalene-diamine in an inert organic solvent. The examiner characterized that reaction as being “a classic method of preparing car-hamic acid esters.” Appellants admit that Cusic discloses the same type of reaction as claimed, but is applied to different though “somewhat analogous starting materials.” They urge the following proposition: Claims to a novel process which utilizes a known type reaction- for making a patentable final product ought be allowed where either (a) the final product made by the process is patentable due to non-obvious differences from prior art ■of the molecular structure, or (b) the principal starting material was unknown at the time the claimed process was invented. Points (a) and (b) serve to -distinguish the facts from those of In re Larsen. Appellants state in their brief that in Larsen this court found: “The compounds reacted are conceded to be old” and “. . . the allowance of the claims to the compounds (by the Examiner) was based on the fact that they possessed unique and presumably unexpected properties.” Those statements, quoted out of context, do not represent the reasons for the decision in that case. Larsen held that even though the compounds themselves were patentable, the processes by which they were prepared may or may not be obvious, adding further that: In view of the obviously close parallel between the claimed processes -and those of the references, we agree with the conclusion of the Patent Office that if the compounds recited in appellant’s allowed claims were disclosed in the prior art" }, { "docid": "23679924", "title": "", "text": "stabilizing solvent. Koppanyi, Dumez, U.S. Dispensatory, and the British patent disclose propylene glycol as a solvent for various medical preparations, vitamins and drugs, including barbiturates and barbiturate salts. Dumez and the British patent place the barbiturate or barbiturate salt, respectively, in anhydrous propylene glycol to form solutions which have sufficient stability to permit of sterilization and which protect the barbiturate material against hydrolysis previously encountered with aqueous solutions. The examiner and the board regarded Carpenter et al. as cumulative and discussion of that reference here, beyond what appears below, is unnecessary. The examiner rejected claims 9 and 13-16 as unpatentable over Lancet in view of Bodin et al., and claims 9, 11, 12, 16 and 17 as un-patentable over Lancet in view of any one of Dumez, Koppanyi, U.S. Dispensatory, or the British specification. The examiner’s position is that, since the secondary references teach the use of polyethylene glycol or propylene glycol as a solvent for medicináis in general and barbiturates or barbiturate salts in particular to alleviate problems encountered with hydrolysis of the barbiturate materials in aqueous solution, it would “not involve invention” to use the glycols as a solvent for the methetharimide of Lancet. The examiner states that, since “it is well known in the pharmaceutical art that methetharimide is structurally very similar to the barbiturates which are shown to be stabilized by the glycols in the art of record * * * it would be obvious to one skilled in the art to try the glycols (in the place of water) as solvents for the methetharimide * * *.” The board affirmed, seeing nothing unreasonable in the examiner’s conclusion that methetharimide would be expected to be soluble in gly-cols in view of art showing solubility of barbiturates in glycols. The board added, “Chemists are well aware that chemical structure has a bearing on solubility and that compounds of similar structure are, in general, soluble in the same solvents.” Appellants contend that the examiner’s position that “* * * it would be obvious to one skilled in the art to try the glycols (in the place of water)" }, { "docid": "1698663", "title": "", "text": "that a rubbery butadiene polymeric product is obtained from tee obvious process is not seen to aid appellant’s' cause. Obviousness does not require absolute predictability of the properties to be obtained. * ⅜ * It seems to us that the error in the Patent Office position is best summed up by the following excerpt from the solicitor’s brief: ⅜ * * the preceding discussion has already considered at length why the claimed process for preparing polybutadiene — employing the claimed starting material, catalyst system and promotor — would have been obvious to one skilled in this art from the combined teachings of the references. Although tee references do not specifically indicate that tee addition of a promotor to the Crawford process would necessarily result in a rubbery polymer having a high 1,2-addition, apparently this is an inherent result which would flow naturally from combining tee teachings of the prior art. * * * However, appellant is not claiming simply a process for preparing polybutadiene. Rather it is a process for preparing a particular polybutadiene having a particular microstructure and particular properties. Concededly, the reference combination does not teach that the Crawford process, as modified 'by the disclosure of Badische-Anilin, would produce the product sought by appellant and recited in his claims. We cannot ignore the particular product unexpectedly produced by the claimed process, as the Patent Office apparently has done, in determining whether the claimed subject matter as a whole is obvious. Moreover, the fact that a rubbery polybutadiene having high 1,2-addition might be inherent in following the combined teachings of the prior art is quite immaterial if, as the record establishes here, one of ordinary skill in the art would not appreciate or recognize that inherent result. As we recently pointed out in In re Spormann, 53 CCPA 1375, 363 F. 2d 444, 150 USPQ 449: ⅜ * * rphg inherency of an advantage and its obviousness are entirely different questions. That wbicb may be inherent is not necessarily known. Obviousness cannot be predicated on what is unknown. The Patent Office has relied on Badische-Anilin’s teachings (that addition of" }, { "docid": "4390980", "title": "", "text": "that resistant or immune strains of bacteria develop. We think this position was correctly answered by the board in its opinion of February 27, 1961 where it stated: * * * The step that appellant took was, in our opinion, merely one that would logically flow from the teachings of the prior art, i.e., the use of a later discovered and more potent antibiotic in place of an older less potent antibiotic in the same relationship (together with soap on the skin). From the very nature of neomycin, it would seem logical to expect better results. * * * While appellant’s brief stresses the “substantivity of neomycin, we are unable to find in the specification anything other than an assumption as to the existence of this effect and an inference that the results of the Cade tests were due to adherence of the neomycin on the skin. The Abbey affidavit establishes that a soap containing neomycin (as base) in an amount of 0.00495% killed the test bacteria “on contact (10 sec)”, thus, it seems to us that the greater concentration of neo-mycin base in the test evaluations set forth in the table in the specification even when diluted with soap and water could also kill the skin flora bacteria on contact. Be that as it may, the references show the properties of neomycin in dermatological tests both in oil bases and in water-miscible bases. To the extent that its germicidal properties are related to its “substan-tivity”, in spite of its water-soluble properties, it seems to us this relationship is as well established by the prior art teachings as it is by anything in appellant’s specification and test data. We therefore agree with the examiner and the board that the soap disclosed by appellant and claimed in the appealed claims is not patentable. Despite the asserted unpredictability of the results achieved as urged by appellant, we think the substitution of the antibiotic neo-mycin for the antibiotic tyrothricin in the soaps disclosed by Craige et al. would have been obvious to one of ordinary skill in this art at the time of" }, { "docid": "12150295", "title": "", "text": "references relied upon, we do not think it is. Nor, apparently, did the examiner, for he stated: * * * Obviously neither reference alone anticipates appellant’s process. Obviously, the combination also does not teach that one can produce a “rubbery polybutadiene containing at least 80% of the 1,2 addition” by adding the promotors of Badische-Anilin to the MoC15-AlR3 of Crawford. * * * It is readily admitted that the precise structure and physical nature of the polybutadienes resulting from following the teachings of Badische-Anilin could not be predicted with any accuracy. * * * Rather, the examiner thought “it would be obvious to one skilled in the art to use the ether or amide promotors of Badische-Anilin with the M0CI5AIR3. catalyst of Crawford for the polymerization of butadiene” because “the three advantages described by * * * [Bad-ische-Anilin]” would “provide reasons why one would try the promotors of Badische-Anilin in the process of Crawford.” The board agreed, adding * * * The failure of the references to teach that a rubbery butadiene polymeric product is obtained from the obvious process is not seen to aid appellant’s cause. Obviousness does, not require absolute predictability of the properties to be obtained. * * *• It seems to us that the error in the Patent Office position is best summed up by the following excerpt from the solicitor’s brief: * * * the preceding discussion has already considered at length why the-claimed process for preparing poly-butadiene — employing the claimed starting material, catalyst system and promotor — would have been obvious to one skilled in this art from the combined teachings of the references. Although the references do not specifically indicate that the addition of a pro-motor to the Crawford process would necessarily result in a rubbery polymer having a high 1,2-addition, apparently this is an inherent result which would flow naturally from combining the teachings of the prior art. * * * However, appellant is not claiming simply a process for preparing polybuta-diene. Rather it is a process for preparing a particular polybutadiene having a particular microstructure and particular properties. Concededly, the" }, { "docid": "10062202", "title": "", "text": "matter which is admittedly unobvious in view of the prior art. Appellant would appear to avoid the reasoning of the board by merely utilizing a different form of claim. It does not seem to me that the form of claim used is either relevant or controlling. The subject matter sought to be patented, the invention, must be considered, not the form of claim utilized. The board was also of the opinion that appellant should restrict himself to “claims in method of use form.” From this statement I assume the board intended that appellant claim a process of using the claimed products, section 100 (b). This type of reasoning was presented in In re Papesch, 315 F.2d 381, 50 CCPA 1084. Therein the examiner reasoned, “The obvious compound is not made less obvious by its properties in an art use. * * * It appears that if * * * [a patentable] invention is present, it resides in the use of the claimed compounds as anti-inflammatory agents and should be claimed as such.” 315 F.2d at 384, 50 CCPA at 1088. We disagree with this reasoning. We quoted the following, 315 F.2d at 389, 50 CCPA at 1095, from In re Larsen, 292 F.2d 531, 49 CCPA 711: -» * * ^he allowance of the claims to the compounds was based on the fact that they possessed unique, and presumably unexpected, properties. Since there was nothing to indicate that the compounds, when made, would have these properties, it was not obvious to make the compounds. In such a case the allowance of claims to the compounds must depend on the proposition that it was unobvious to conceive the idea of producing them, within the meaning of Title 35 U.S.C. § 103. [Emphasis added.] As to “structural obviousness” the opinion in Papesch quotes the following, 315 F.2d at 390, 50 CCPA at 1096, from In re Lambooy, 300 F.2d 950, 49 CCPA 985: A comparison of the structural formulas of these two compounds shows clearly that there is substantial structural similarity. But more appears from the facts of this case than structural" }, { "docid": "3316053", "title": "", "text": "Smith, Judge, delivered the opinion of the court: The principal issues for decision are: (1) whether the compounds defined in appealed claims 17 through 22 would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103; and (2) whether claim 25 is an improper “product-by-process” claim. The Patent Office Board of Appeals affirmed the examiner’s rejection of the claims in issue presented in appellants’ application. The Invention Appellants’ claimed invention is directed to condensation products of substituted or unsubstituted diphenylamine-4-diazonium salts with formaldehyde. The condensation products, which are polyfunctional diazonium salts, are obtained as phosphates free from metal salts. Appellants’ specification admits that certain polyfunctional diazonium salts are known to the prior art. It states: It is known to tbe art to prepare polyfunctional diazonium salts by condensing dipbenylamine-4-diazonium salts with carbonyl compounds in the presence of mineral acids. In most instances, condensation of diazonium salts with formaldehyde is effected in sulfuric acid of high concentration; hydrochloric acid has also been used as a condensation medium. Isolation of the products produced by condensation in sulfuric acid is accomplished according to a variety of methods, e. g. |by precipitation as zinc chloride double salt, as and acid sulfate, or as a diazo sulfonate. The isolation of the condensation products produced in hydrochloric acid has not been specifically described. Appellants urge that the known methods of isolation of the diazonium condensation products considerably limited the technical application of these compounds. According to. appellants’ method, substituted or unsubstituted diphenylamine-4-diazonium salts of acids having a boiling point below 150° C. are condensed with formaldehyde in a phosphoric acid condensation medium. Either before or after condensation, the anions of the original diphenylamine-4-diazoiiium salts are removed from the reaction mixture. The polyfunctional diazonium phosphates thus formed are precipitated from the reaction mixture, after dilution of the mixture if necessary, by means of organic solvents, in which the phosphates are either insoluble or soluble with some difficulty. After precipitation, the diazonium phosphates are separated by filtration and dried. Appellants point out that it is not necessary to effect the" }, { "docid": "23679929", "title": "", "text": "Lancet (“Shaw states that * * * [methetharimide] is quite innocuous”), are far more persuasive that the “physiologically innocuous” property set forth here is indeed obvious and expected. Appellants concede in their brief that the prior art was aware that methetharimide in aqueous physiological saline solution hydrolyzed and lost effectiveness. It would appear self-evident that elimination of water and utilization of a non-aqueous solvent would solve this problem. The means by which similar stability problems with other hydrolyzable drugs were eliminated was well known in the art prior to appellant’s invention, as is apparent from a consideration of Dumez (“Propylene glycol is * * * used to prepare anhydrous solutions of the barbiturates of sufficient stability to permit of sterilization”), British (* * * “The alkali metal salts of the barbituric acids * * * are rather unstable in the presence of water; * * * they undergo chemical decompositions, probably by hydrolysis. * * * The present invention is based on the discovery that by dissolving the alkali metal salts of barbituric acids in glycols, in the absence of water, stable and sterilizable solutions are obtained * * *”), or Carpenter etal. (“* ⅜ * increasing concentrations of * * * [polyethylene glycol 400] have the effect of increasing the stability of pentobarbital sodium”). Clear ly the characteristic of stability against hydrolysis of the claimed solutions is both obvious and expected from the references of record. The appellants further argue that the Patent Office disregarded Lampe’s teaching that the “central activity” (effect on the central nervous system) of propylene glycol warrants “more thorough investigation” since experiments showed the glycol to depress the central nervous system of mice in a manner analogous to the barbiturates. Thus, the appellants contend that, in administering the solution of barbiturate antagonist in propylene glycol to overcome the effects of barbiturate narcosis, one would expect the depressant action of barbiturate and glycol to be cumulative, with the end result that the solution has less effect, in therapy, as a barbiturate antagonist. We believe Lampe et al. to be inconclusive support for the appellants’ position. The" }, { "docid": "18920744", "title": "", "text": "process is patentable due to non-obvious differences from prior art ■of the molecular structure, or (b) the principal starting material was unknown at the time the claimed process was invented. Points (a) and (b) serve to -distinguish the facts from those of In re Larsen. Appellants state in their brief that in Larsen this court found: “The compounds reacted are conceded to be old” and “. . . the allowance of the claims to the compounds (by the Examiner) was based on the fact that they possessed unique and presumably unexpected properties.” Those statements, quoted out of context, do not represent the reasons for the decision in that case. Larsen held that even though the compounds themselves were patentable, the processes by which they were prepared may or may not be obvious, adding further that: In view of the obviously close parallel between the claimed processes -and those of the references, we agree with the conclusion of the Patent Office that if the compounds recited in appellant’s allowed claims were disclosed in the prior art it would be obvious to a person of ordinary skill in the art to prepare them by the processes set forth in the appealed claims. * * * “It is well settled that the allowability of one set of claims cannot be predicated on the patentability of other claims in the same application.” In re Touvay, 46 CCPA 823, 264 F. 2d 901, 121 USPQ 265. Claims to a method of preparing -a chemical compound must be found patentable independently of claims to the compound itself. If the instant process claims are patentable, they must themselves be unobvious over the prior art. Whatever may have been the reasons for allowance of claims to the carbamate products, whether because of unobvious structure or property, those unobvious features are inherent in the carbamates themselves, and not in the method of their preparation, or in the reactants from which they are produced. Here we have process claims which define simply “reacting” a particular chloroformate with a particular amine to produce a particular carbamate. That type of reaction is" }, { "docid": "12150296", "title": "", "text": "obtained from the obvious process is not seen to aid appellant’s cause. Obviousness does, not require absolute predictability of the properties to be obtained. * * *• It seems to us that the error in the Patent Office position is best summed up by the following excerpt from the solicitor’s brief: * * * the preceding discussion has already considered at length why the-claimed process for preparing poly-butadiene — employing the claimed starting material, catalyst system and promotor — would have been obvious to one skilled in this art from the combined teachings of the references. Although the references do not specifically indicate that the addition of a pro-motor to the Crawford process would necessarily result in a rubbery polymer having a high 1,2-addition, apparently this is an inherent result which would flow naturally from combining the teachings of the prior art. * * * However, appellant is not claiming simply a process for preparing polybuta-diene. Rather it is a process for preparing a particular polybutadiene having a particular microstructure and particular properties. Concededly, the reference combination does not teach that the Crawford process, as modified by the disclosure of Badische-Anilin, would produce the product sought by appellant and recited in his claims. We cannot ignore the particular product unexpectedly produced by the claimed process, as the Patent Office apparently has done, in determining whether the claimed subject matter as a whole is obvious. Moreover, the fact that a rubbery polybuta-diene having high 1,2-addition might be inherent in following the combined teachings of the prior art is quite immaterial if, as the record establishes here, one of ordinary skill in the art would not appreciate or recognize that inherent result. As we recently pointed out in In re Spor-mann, 363 F.2d 444, 53 CCPA 1375: * * * The inherency of an advantage and its obviousness are entirely different questions. That which may be inherent is not necessarily known. Obviousness cannot be predicated on what is unknown. The Patent Office has relied on Bad-ische-Anilin’s teachings (that addition of ethers and amines to Ziegler catalysts used in polymerization of mono-olefins increases" }, { "docid": "10497516", "title": "", "text": "render claims to the crystalline form allowable over a clear disclosure of the compound in its previously known amorphous form. Claims 5 to 8, inclusive, to the process, call for crystallizing the hygroscopic salt from a lower aliphatic alcohol. The reference discloses precipitation, of the salt from a lower aliphatic alcohol solution with isopropyl ether as a part of the concentration and purification technique there described, but does not disclose the step of “crystallizing.” Further, the reference is not concerned with a process of making the hygroscopic material nonhygroscopie. However, in essence, these claims are considered to be for nothing- more than the broad concept of crystallizing out the salt from an alcohol. The use of alcohol is old practice for crystallizing, as the Examiner points out, and since the claims teach the art no new process, at least one that would not be obvious to the skilled worker in this field, for the crystallization of calcium pantothenate, it is our opinion that the claims are unpatentable. The claims are broadly drawn and we agree with the Examiner that the process step defined is broadly old. No invention is seen in its broad application to a specific compound. At one point in their brief appellants seem to question the accuracy of somé of the statements of fact made in the decisions below, but we do not find them challenged in the reasons .of appeal, and, at any rate, as is pointed out by the Solicitor for the Patent Office, “* * * appellants did not request that these statements be supported by an affidavit, as they were entitled to do under Patent Office rule 66, and did not present any factual evidence to controvert them.” They are not; therefore, in a position to have any question of such accuracy considered here. In re Lewis, 25 C. C. P. A. (Patents) 1273, 96 F. (2d) 1009, 37 USPQ 786. So far as the reference article is concerned, it concededly did not relate to a crystallized product, but to an amorphous product produced from what had previously been named “panothenic acid,” which" }, { "docid": "23679925", "title": "", "text": "materials in aqueous solution, it would “not involve invention” to use the glycols as a solvent for the methetharimide of Lancet. The examiner states that, since “it is well known in the pharmaceutical art that methetharimide is structurally very similar to the barbiturates which are shown to be stabilized by the glycols in the art of record * * * it would be obvious to one skilled in the art to try the glycols (in the place of water) as solvents for the methetharimide * * *.” The board affirmed, seeing nothing unreasonable in the examiner’s conclusion that methetharimide would be expected to be soluble in gly-cols in view of art showing solubility of barbiturates in glycols. The board added, “Chemists are well aware that chemical structure has a bearing on solubility and that compounds of similar structure are, in general, soluble in the same solvents.” Appellants contend that the examiner’s position that “* * * it would be obvious to one skilled in the art to try the glycols (in the place of water) as solvents for the methetharimide * * *” is contrary to 35 U.S.C. 103 as well as our decision in In re Huellmantel, 51 CCPA 845, 324 F. 2d 998, 139 USPQ 496, wherein we said: We feel compelled to comment on the Patent Office analysis by which patent-ability under 35 U.S.C. 103 is herein determined. The examiner concedes that appellant’s composition “shows improved results.” The board accepts this as “fact,” but concludes it is immaterial since “it is obvious to at least, try” [our emphasis] to substitute one steroid for another in the prior art composition. We believe this reasoning, insofar as it negates consideration of properties in determining obviousness under section 103, flys in the face of the plain language of the statute * * *. Section 103 says, inter alia, “The subject matter as a whole would have been obvious * * Nothing is said about “obvious to try.” Consideration of the subject matter “as a whole” in chemical cases requires comparison of properties, pharmaceutical or otherwise, as well as comparison of" }, { "docid": "7525996", "title": "", "text": "an intense blue violet coloration by ninhydrin reagent after it was acted with [upon by] penicillinase.” “Penicin” is depicted as having the formula: Arnstein et al. disclose suggested pathways of penicillin biosynthesis. Set forth as a possible reaction mechanism is a process which starts with cysteinylvaline, the final step in the penicillin biosynthesis being postulated as consisting of the acylation of a compound having the structural formula: The examiner rejected claims 2 and 4 as “lacking invention” over Kuhne or Sakaguchi et al. or Arnstein et al., all of which were considered to “teach the concept of 6-aminopenicillanic acid which is the compound that is instantly being claimed.” The examiner stated that the presence of 6-APA could be readily appreciated by one skilled in the art in view of the cited references. The patentability of isolating 6-APA from the fermentation liquor obtained in the bio-synthesis of penicillins was said by the examiner to have been recognized by the Patent Office since appellant’s parent application, serial No. 730,057, of the instant application serial No. 833,680 has matured into US patent No. 2,941,995 and the claims of the parent application “are directed to a method of recovering the 6-aminopenicillanic acid from an aqueous solution.” In affirming the examiner’s rejection the board stated: In each of these publications [Sakaguchi et al., Kuhne and Arnstein et al.] the compound claimed was described by its structural formula which is the means most commonly used by chemists to accurately describe an organic chemical. From the publications a chemist would he informed of, and understand the exact nature of the claimed compound and its relationship to valuable compounds of the prior art. Appellants contend that they have produced a compound which was not available before and have made possible “new penicillins both for commercial exploitation and for extensive research work.” They urge that they were the first to produce, isolate and purify solid 6-APA and to determine its properties. It is argued that the prior art had depicted the structural formula of 6-APA, not to describe an alleged existing compound, but rather as a possible merely theoretical" }, { "docid": "13308145", "title": "", "text": "no apparent purpose or result is to be achieved, no reason or motivation to be satisfied, upon modifying the reference compounds’ structure ? Where the prior art reference neither discloses nor suggests a utility for certain described compounds, why should it be said that a reference makes obvious to one of ordinary skill in the art an isomer, homolog or analog of related structure, when that mythical, but intensely practical, person knows of no “practical” reason to make the reference compounds, much less any structurally related compounds? In short, of what significance is it to a determination of obviousness that it is reasonable to assume or expect the compounds of the prior art and of the claims to possess similarities in significant properties or uses, if in fact no one prior to appellant’s entry into the field knew what any of those properties or uses are ? In any event, the board’s finding of a prima facie case of obviousness which it predicated on obviousness of the compounds’ structure “to a chemist”— if, indeed, there be such a case here — is not necessarily conclusive as to obviousness of the subject matter as a whole under § 103. In re Papesch and Comr. of Pats. v. Deutsche Gold-und-Silber-Schei-deanstalt, supra. The board recognized as much, but nevertheless considered itself bound to sustain the rejection “[i]n the absence of a proper showing to negate the structural obviousness raised by the reference combination.” Unfortunately, the board did not detail what “proper showing” it would have considered adequate. We may safely assume that it would require more than what appellant concededly has presented in his specification — a disclosure of a particular, significant usefulness for his claimed compounds which, so far as the record shows, was not known or obvious to those in the art. Appellant argues that that disclosure which he has imparted to the art is relevant evidence of unobviousness and is adequate consideration for a patent grant on the-compounds, where the prior art previously was unaware of any usefulness for the class of compounds to which the claimed compounds belong. Is" }, { "docid": "17649768", "title": "", "text": "system used discloses, “As a reaction medium one can in principle use water to which, however, a water-miscible organic solvent is added as solubilizer, since humulon is practically insoluble in water. As mentioned above, water-ethanol mixtures are preferred.” None of the examples in the grandparent application use other than aqueous systems consisting of water or water in addition to a water-miscible solvent such as ethanol. It is only with the filing of the continuation-in-part application, the parent of this application, now U.S. Patent No. 3,952,061, that appellants added examples drawn to the use of water-immiscible solvent systems. Appellants recognized the fact that there was no support in the original application to claim the use of a water-immiscible system which they are now trying to recoup in view of the Worden patent disclosure. It is interesting to note that in the parent application, appellants cancelled all claims directed to the use of water-immiscible solvent systems in view of a rejection over there[sic] own priority documents which had become available as prior art. * * * Up until Worden published his invention, no one had ever isomerized the alpha-acids of hops resins to iso-alpha acids in non-aqueous systems. It was Worden that [sic] discovered the great processing benefits that accrued to the use of such a system. The use of aqueous systems in place of non-aqueous systems prior to Worden was unknown. Therefore, appellants cannot allege that the use of non-aqueous systems was implied in their original disclosure since it was not specifically used, disclosed or known in the art at that time. Appellants readily admit that they added new matter in the continuation-in-part application but are attempting to imply that it was there all the time. If it were present in the parent (grandparent of this application), the new matter would not have been needed nor the additional added examples. Appellants [sic] position is believed to be in error since (1) there is no specific disclosure of the use of non-aqueous systems, the contrary being true, and (2) it cannot be inferred that the use of non-aqueous systems would have [been]" }, { "docid": "4390981", "title": "", "text": "us that the greater concentration of neo-mycin base in the test evaluations set forth in the table in the specification even when diluted with soap and water could also kill the skin flora bacteria on contact. Be that as it may, the references show the properties of neomycin in dermatological tests both in oil bases and in water-miscible bases. To the extent that its germicidal properties are related to its “substan-tivity”, in spite of its water-soluble properties, it seems to us this relationship is as well established by the prior art teachings as it is by anything in appellant’s specification and test data. We therefore agree with the examiner and the board that the soap disclosed by appellant and claimed in the appealed claims is not patentable. Despite the asserted unpredictability of the results achieved as urged by appellant, we think the substitution of the antibiotic neo-mycin for the antibiotic tyrothricin in the soaps disclosed by Craige et al. would have been obvious to one of ordinary skill in this art at the time of appellant’s invention in view of the disclosures in the Merck Index and in the Journal of the American Medical Association as to the properties of neomycin and its use in various carriers in topical applications. Under these circumstances, the grant of a patent thereon is prohibited by 35 U.S.C. 103. For the foregoing reasons, the decision of the board is affirmed. Martin, J., did not sit or participate because of illness. The specification states at one point: “It is not known whether the compound does actually adhere to the skin.” Later, however, it states “the neomycin does apparently adhere to the skin.”" } ]

[ { "docid": "22585283", "title": "", "text": "compelled by the wide discretion the Copyright Act affords the trial court in setting the amount of statutory damages. 17 U.S.C. § 504(c)(1) and (2); Harris v. Emus Records Corp., 734 F.2d 1329, 1335 (9th Cir.1984); Blendingwell Music, Inc. v. Moor-Law, Inc., 612 F.Supp. 474, 485 (D.Del.1985); United Features Syndicate, Inc. v. Spree, Inc., 600 F.Supp. 1242, 1246 (E.D.Mich.1984), appeal dismissed, 779 F.2d 53 (6th Cir.1985); RSO Records, Inc. v. Pen, 596 F.Supp. 849, 862 (S.D.N.Y. 1984); Boz Scaggs Music v. KND Corp., 491 F.Supp. 908, 914 (D.Conn.1980). Under § 504(c)(1) an award of statutory damages may be made from $250 up to $10,000 “as the court considers just.” In cases where the court finds, as here, that the infringement was committed willfully, the award may be increased to a sum of $50,000 for each infringement. § 504(c)(2). It might be thought difficult to set a single award of statutory damages when the determination involves two defendants, one of which might be more blameworthy than the other. Here, for instance, the district court believed that as between the two defendants, Baylor was the more culpable. Yet, such potential problems are largely chimerical. Most of the factors relied upon in deciding upon the appropriate statutory damages award do not depend on the trial court’s weighing the blameworthiness of one defendant against another. For example, the expenses saved and the profits reaped by the infringers are considered. Rare Blue Music, Inc. v. Guttadauro, 616 F.Supp. 1528, 1530 (D.Mass.1985); Milene Music, Inc. v. Gotauco, 551 F.Supp. 1288, 1296 (D.R.I.1982). Other factors — not dependent on a particular defendant’s culpability — are also examined, including the revenues lost by the plaintiff, Boz Scaggs Music, 491 F.Supp. at 914, the value of the copyright, see, e.g., Spree, 600 F.Supp. at 1246, and the deterrent effect on others besides the defendant. United Feature Syndicate, Inc. v. Sunrise Mold Co., 569 F.Supp. 1475, 1481 (S.D.Fla.1983). Some factors do focus upon an individual defendant’s culpability, for instance, whether the defendant’s conduct was innocent or willful, Blendingwell Music, 612 F.Supp. at 486, or whether a defendant has cooperated in" } ]

[ { "docid": "2766102", "title": "", "text": "no proved actual damages. Id. at *8. . In this case, the District Court’s original award was $25,000 or $50,000 from each of the nine defendants, depending on whether the defendant faced one or both of the plaintiffs. See Gucci Am., Inc., et al. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 399 (S.D.N.Y.1998). The District Court later reopened the issue of damages and decreased this award. See Guess?, Inc. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 409 (S.D.N.Y.1998) (decreasing award from $25,000 to $4,500). In response to the decrease, the Second Circuit \"reverse[d] and order[ed] reinstatement of the original monetary judgments!,] conclud[ing] that the district court erred in granting the motion to vacate the damages portion of the judgments.” Gucci Am., Inc., et al. v. Gold Ctr. Jewelry, et al., 158 F.3d 631, 635 (2d Cir.1998). The Second Circuit reversed only the decrease of the original award; it explicitly affirmed all other determinations of the District Court, such as the factual findings, the original statutory damages award, and the award of attorney fees. See id. (“In all other respects, the decision of the district court is hereby affirmed.”)." }, { "docid": "2766091", "title": "", "text": "his continuing counterfeiting, Tr. Sept. 17, 1998 at 24-30 (September 11, 1998 purchase); Tr. Sept. 18, 1998 at 65-68 (Au-gusft-September 1998 observations), the court noted that he was “a witness I don’t credit at all”: We heard all of this before from this witness about how he is not involved in this business, and he has been held in contempt and the seizure order was then confirmed. I have heard all of this before. I don’t credit this man for one second. In my view, he is a completely incredible person. I have heard him many times here, and the evidence shows that he is continuing to do exactly what he was enjoined from doing and why his goods were seized. Id. at 93. Active effort to mislead the court about continued willful counterfeiting is a traditional aggravating factor in statutory damages inquiries, including the one § 1117(e) determination in the Southern District. In Gucci Am., Inc., et al. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 399, 401 (S.D.N.Y.), modified on other grounds, 997 F.Supp. 409 (S.D.N.Y.), rev’d on other grounds, 158 F.3d 631 (2d Cir.1998), the District Court’s § 1117(c) determinations considered that the defendants continued their infringements after receiving cease and desist letters, 997 F.Supp. at 401, and that a key defendant’s “credibility is subject to serious question ... [and] conduct during the course of the litigation was entirely inappropriate,” 997 F.Supp. at 411. Affirmative efforts to mislead aside, the defendants have failed to provide evidence that would allow a more informed damages determination. Sara Lee reported that it “never received any response to discovery requests. These defendants kept little or no records as to sale and surely none which would allow a plaintiff to calculate the profits.” Tr. at 9 (Brokate). It is not clear whether the defendants “kept little or no records,” kept records but refused to disclose them, or, as at the September 18, 1998 hear ing, produced implausibly exculpatory purported records, Tr. Sept. 18, 1998 at 81-82, 87-88 (Mr. Helou denying selling 10 counterfeits for $835 by claiming that his bags cost $32" }, { "docid": "2766083", "title": "", "text": "can order awards anywhere from $500 to $100,-000, with the maximum increasing to $1,000,-000 for “willful” violations. 15 U.S.C. § 1117(e)(1),(2). Because a key purpose of § 1117(e) is to provide a monetary remedy in cases of amorphous damage, courts assessing statutory damages must exercise discretion in examining whatever facts and considerations are available in a setting of limited information. 2. Analogy to Copyright Act Statutory Damages In Guess?, Inc. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 409 (S.D.N.Y.), rev’d on other grounds, 158 F.3d 631 (2d Cir.1998), the District Court decided that because of the paucity of cases applying the relatively new 1996 Act, it would look to “an analogy [in] the Copyright Act[,] ... which provide[s] for awards of statutory damages for willful copyright infringement. Hence, cases decided under the Copyright Act, which deals with a similar problem and a similar legislative grant of discretion, afford guidance here.” 997 F.Supp. at 411 (citing 17 U.S.C. § 504(c)). The Copyright Act is not only similar in principle to the Trademark Act but identical in much of its statutory damages language. Both authorize determinations within a broad range “as the court considers just,” 15 U.S.C. § 1117(c)(1),(2); 17 U.S.C. § 504(c)(1),(2), with the maximum increasing for “willful” infringements, 15 U.S.C. § 1117(e)(2); 17 U.S.C. § 504(c)(2). While only three District Courts have interpreted § 1117(c) of the Trademark Act, the Second Circuit has had years to interpret the § 504(c) of the Copyright Act. Fitzgerald Pub. Co. v. Baylor Pub. Co., et al., 807 F.2d 1110 (2d Cir.1986), noted several factors for courts to consider. First, the relevant factors include whatever dollar figures are available, such as “the expenses saved and the profits reaped by the infringers[,] ... the revenues lost by the plaintiff, ... [and] the value of the copyright.” Id. at 1117. Second, “[s]ome factors do focus on an individual defendant’s culpability, for instance, whether the defendant’s conduct was innocent or willful, ... or whether a defendant has cooperated in providing particular records from which to assess the value of the infringing material produced.” Id. Third, “the" }, { "docid": "2766099", "title": "", "text": "right to attorneys’ fees.... ‘Exceptional’ circumstances include willful infringement.” Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 854 (2d Cir.1995). Accord Guess?, Inc. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 409, 412 (S.D.N.Y.) (“Usually, the type of conduct that has sufficed to make out an ‘exceptional case’ is intentional, deliberate, or willful infringement.” (quotation omitted)), rev’d on other grounds, 158 F.3d 631 (2d Cir.1998); Playboy Enter., Inc. v. Asiafocus Int’l, Inc., et al., No. Civ. A. 97-834-A, 1998 WL 724000, at *9 (E.D.Va. Apr. 10, 1998) (“[Djefendant acted willfully and in bad faith in initiating and continuing their infringing activities despite notice from [plaintiff] and the commencement of this litigation. This ease is therefore ‘exceptional’ ... and warrants the award of attorneys fees.”). The broader question is whether a defendant’s deliberate misconduct caused such unwarranted delay and expense for which the plaintiff deserves compensation. Accordingly, the sort of misconduct that supports an attorney fees award includes not only willful infringement, but also willful defiance and protraction of judicial processes attempting to stop the illegalities. The award of attorney fees stands under § 1117(a),(b) because both forms of misconduct are present here, as in Guess?, Inc.: “Here, the willfulness of the infringement is established. Moreover, defendant’s conduct with respect to the litigation has caused needless expense for the plaintiff and unnecessarily consumed a great deal of the Court’s time. In consequence, an award of attorney’s fees is appropriate.” 997 F.Supp. at 412. The Default Judgment’s costs award also stands because § 1117(a) awards plain tiffs “the costs of the action” only “subject to the principles of equity” even without the higher showing of willfulness that justifies attorney fees. The two submissions from Sara Lee attorneys sufficiently document fee requests that are reasonable for this case. See Decl. Thomas A. Smart Supp. Att’ys’ Fees; Decl. Brian W. Brokate Supp. Att’ys’ Fees. The hourly rates appropriately vary based on each attorney’s standing and experience. See Smart Decl. at 5; Brokate Decl. at 5. The amount of work was not excessive under the circumstances, in light of the following considerations: the" }, { "docid": "2766082", "title": "", "text": "S.Rep. No. 177, 104th Cong., 2d Sess. (1995)), rev’d on other grounds, 158 F.3d 631 (2d Cir.1998). The fact that infringer nondisclosure is a key reason for statutory damages explains why two of the three cases applying § 1117(c) are judgments against infringers who, after commencement of litigation, defaulted and continued their wrongdoing. See Gucci Am., Inc., et al. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 399 (S.D.N.Y.), modified on other grounds, 997 F.Supp. 409 (S.D.N.Y.), rev’d on other grounds, 158 F.3d 631 (2d Cir.1998); Playboy Enterprises, Inc. v. Asiafocus Intern. Inc., et al., No. Civ. A. 97-834-A, 1998 WL 724000 (E.D.Va. Apr. 10, 1998). “The statute itself does not afford much guidance as to how the courts are to fix appropriate amounts in statutory damage cases.” Guess?, Inc. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 409, 411 (S.D.N.Y.), rev’d on other grounds, 158 F.3d 631 (2d Cir.1998). The 1996 Act limited its textual guidance purposefully, however; it specifically provided for broad judicial discretion in instructing that “as the court considers just,” it can order awards anywhere from $500 to $100,-000, with the maximum increasing to $1,000,-000 for “willful” violations. 15 U.S.C. § 1117(e)(1),(2). Because a key purpose of § 1117(e) is to provide a monetary remedy in cases of amorphous damage, courts assessing statutory damages must exercise discretion in examining whatever facts and considerations are available in a setting of limited information. 2. Analogy to Copyright Act Statutory Damages In Guess?, Inc. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 409 (S.D.N.Y.), rev’d on other grounds, 158 F.3d 631 (2d Cir.1998), the District Court decided that because of the paucity of cases applying the relatively new 1996 Act, it would look to “an analogy [in] the Copyright Act[,] ... which provide[s] for awards of statutory damages for willful copyright infringement. Hence, cases decided under the Copyright Act, which deals with a similar problem and a similar legislative grant of discretion, afford guidance here.” 997 F.Supp. at 411 (citing 17 U.S.C. § 504(c)). The Copyright Act is not only similar in principle to the Trademark Act but identical" }, { "docid": "2766080", "title": "", "text": "to compensate as under § 1117(a), but “to deter potential counterfeiters.” Louis Vuitton S.A., et al. v. Spencer Handbags Corp., 765 F.2d 966, 970 (2d Cir.1985). These distinctions among § 1117(a),(b),(c) clarify the nature of § 1117(c) awards: § 1117(a) provides strictly compensatory relief; § 1117(b) provides strictly capped punitive relief; and § 1117(e) provides both compensatory and punitive relief without the strict limits of § 1117(a),(b). While § 1117(c) looks to compensatory considerations (e.g., actual losses and trademark value), it also looks to punitive considerations (e.g., deterrence of other infringers and redress of wrongful defense conduct). See infra Part II.B. Thus, damages inquiries under § 1117(e) and those under § 1117(a),(b) look to similar considerations but differ in that under § 1117(c), “there is no necessary mathematical relationship between the size of such an award and the extent or profitability of the defendant’s wrongful activities” because § 1117(c) omits the strict limits on compensatory and punitive relief of § 1117(a),(b). Gucci Am., Inc., et al. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 399, 404 (S.D.N.Y.), modified on other grounds, 997 F.Supp. 409 (S.D.N.Y.), rev’d on other grounds, 158 F.3d 631 (2d Cir.1998). See also, e.g., Playboy Enter., Inc. v. Universal Tel-A-Talk, Inc., et al., No. Civ. A. 96-6961, 1998 WL 767440, at *8 (E.D.Pa. Nov.3, 1998) (“[Djefendants did not have any profits and plaintiff has failed to prove actual damages. Nevertheless, ... plaintiff may elect to recover statutory damages.”). B. Criteria for Statutory Damages Determination 1. Broad Judicial Discretion in Setting Amount of Damages Statutory damages are most appropriate when infringer nondisclosure during fact finding leaves damages uncertain. This problem motivated the enactment of § 1117(c) in the 1996 Act: The creation of this alternative to the more traditional damage remedies of recovery of the plaintiffs damages or the defendant’s profits reflected a harsh reality — counterfeiters often do not keep or secrete records of their unlawful activities, thus making proof of the extent of the plaintiffs injury or the counterfeiters’ profits impossible as a practical matter. Guess?, Inc. v. Gold Center Jewelry, 997 F.Supp. 409 (S.D.N.Y.) (citing" }, { "docid": "2766086", "title": "", "text": "1996 Act codified as 15 U.S.C. § 1117(c), the Second Circuit has held that uncapped statutory damages under 17 U.S.C. § 504(c)(1),(2) may be punitive as necessary to deter the defendants, to deter others, and to redress wrongful litigation conduct. See N.A.S. Import, Corp., 968 F.2d at 252; Fitzgerald Pub. Co., 807 F.2d at 1117. 3. The Three 1998 District Court Cases Applying § 1117(c) In the three existing § 1117(c) cases, District Court awards have paralleled the Copyright Act precedents. Playboy Enter., Inc. v. Universal Tel-A-Talk, Inc., et al., No. Civ. A. 96-6961, 1998 WL 767440, at *8 (E.D.Pa. Nov.3, 1998), found no willfulness and awarded $10,000 in statutory damages. The other cases awarded sums of six or seven figures after finding the sort of aggravating circumstances the Copyright Act precedents establish as factors in statutory damages determinations. See Playboy Enter., Inc. v. Asiafocus Int’l, Inc., et al., No. Civ. A. 97-834-A, 1998 WL 724000 (E.D.Va. Apr. 10, 1998) (awarding $3,000,000 with per-infringement statutory damage awards of $500,000 to $1,000,000); Gucci Am., Inc., et al. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 399, 400 (S.D.N.Y.) (awarding $275,000 with per-defendant statutory damage awards of $25,000 to $50,000), modified, 997 F.Supp. 409 (S.D.N.Y.) (decreasing award), rev’d, 158 F.3d 631 (2d Cir.1998) (reinstating original award). C. Statutory Damages in the Present Case The determination of a proper amount of statutory damages must look to the full range of factors discussed above. Though actual damages, such as profits and losses, are a typical starting point for analysis, they are difficult to determine here beyond rough estimates of the amount of counterfeiting. Moreover, the circumstances make especially salient the various non-monetary factors based on the defendants’ misconduct. Mr. Helou, who controlled BNY and NYNYH, willfully infringed Coach trademarks for over two years, defying all attempts at deterrence and supporting the counterfeiting operation by concealing evidence and lying under oath repeatedly. 1. Willfulness of Infringements The court agrees with Sara Lee that “the wilful activity of the defendants resulted in a methodical long-time operation of a counterfeit Coach factory knowing full well ... that" }, { "docid": "2766098", "title": "", "text": "punish, so the same trebling of actual damages is an unadventurous corollary to the court’s finding of willfulness. The failure of earlier, milder measures against the defendants highlight both the need for stronger deterrence and the need to redress the defendants’ repeated efforts to defy and mislead the court. If the $250,000 award necessary for purely compensatory relief is trebled, then the statutory damages award rises to $750,000. Even if the amount necessary for purely compensatory relief were somewhat lower than $250,000, an increase of the statutory damages award to $750,000 is in conformity with the precedents instructing that awards increase to deter and punish a willful continuous course of infringements and defiance of the judicial process. D. Attorney Fees and Costs The Default Judgment ordered the defendants to pay “reasonable attorneys’ fees and costs pursuant to 15 U.S.C. § 1117(b).” Awards of attorney fees for Trademark Act violations are appropriate in “exceptional cases” under § 1117(a) and for willful violations under § 1117(b), conditions that overlap significantly because “[t]he finding of willfulness determines the right to attorneys’ fees.... ‘Exceptional’ circumstances include willful infringement.” Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 854 (2d Cir.1995). Accord Guess?, Inc. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 409, 412 (S.D.N.Y.) (“Usually, the type of conduct that has sufficed to make out an ‘exceptional case’ is intentional, deliberate, or willful infringement.” (quotation omitted)), rev’d on other grounds, 158 F.3d 631 (2d Cir.1998); Playboy Enter., Inc. v. Asiafocus Int’l, Inc., et al., No. Civ. A. 97-834-A, 1998 WL 724000, at *9 (E.D.Va. Apr. 10, 1998) (“[Djefendant acted willfully and in bad faith in initiating and continuing their infringing activities despite notice from [plaintiff] and the commencement of this litigation. This ease is therefore ‘exceptional’ ... and warrants the award of attorneys fees.”). The broader question is whether a defendant’s deliberate misconduct caused such unwarranted delay and expense for which the plaintiff deserves compensation. Accordingly, the sort of misconduct that supports an attorney fees award includes not only willful infringement, but also willful defiance and protraction of judicial processes attempting to stop" }, { "docid": "20036560", "title": "", "text": "in the amount of— (1) not less than $1,000 or more than $200,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just; or (2) if the court finds that the use of the counterfeit mark was willful, not more than $2,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just. “The lack of information regarding defendants’ sales and profits make statutory damages particularly appropriate for these kinds of default cases.” Century 21 Real Estate LLC v. Paramount Home Sales, Inc., No. 06-CV-2861, 2007 WL 403397, at *4 (E.D.N.Y. Aug. 20, 2007) (collecting cases). “The standard for willfulness is whether the defendant had knowledge that [his] conduct represented infringement or perhaps recklessly disregarded the possibility.” Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283, 288 (2d Cir.1999). It would be difficult for me to conclude that the infringements were anything but willful. Here, the parties voluntarily engaged in negotiations for Defendants to use properly the DUKE ELLINGTON trademarks in the marketing and promotion of a cognac, but the negotiations were unsuccessful. However, Defendants proceeded to use the trademarks without authorization. Courts are vested with broad discretion when determining statutory damages under the Lanham Act, in part because of the paucity of statutory guidance. See Sara Lee Corp. v. Bags of New York, Inc., 36 F.Supp.2d 161, 165-66 (S.D.N.Y.1999). There is little evidence in the complaint of how extensive or widespread the infringement actually was. Indeed, Defendants were promoting and marketing “Duke Ellington XO Cognac,” but there is no evidence as to how many bottles of cognac Defendants actually sold or attempted to sell. On the other hand, Defendants are in the business of selling celebrity-branded liqueurs and their infringement directly relates to their business model. Moreover, “there is no necessary mathematical relationship between the size of such an award and the extent or profitability of the defendant’s wrongful activities.” Gucci Am., Inc. v. Gold Ctr. Jewelry, 997 F.Supp. 399, 404 (S.D.N.Y.), modified on other grounds, 997 F.Supp. 409 (S.D.N.Y.), rev’d on" }, { "docid": "2766087", "title": "", "text": "al. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 399, 400 (S.D.N.Y.) (awarding $275,000 with per-defendant statutory damage awards of $25,000 to $50,000), modified, 997 F.Supp. 409 (S.D.N.Y.) (decreasing award), rev’d, 158 F.3d 631 (2d Cir.1998) (reinstating original award). C. Statutory Damages in the Present Case The determination of a proper amount of statutory damages must look to the full range of factors discussed above. Though actual damages, such as profits and losses, are a typical starting point for analysis, they are difficult to determine here beyond rough estimates of the amount of counterfeiting. Moreover, the circumstances make especially salient the various non-monetary factors based on the defendants’ misconduct. Mr. Helou, who controlled BNY and NYNYH, willfully infringed Coach trademarks for over two years, defying all attempts at deterrence and supporting the counterfeiting operation by concealing evidence and lying under oath repeatedly. 1. Willfulness of Infringements The court agrees with Sara Lee that “the wilful activity of the defendants resulted in a methodical long-time operation of a counterfeit Coach factory knowing full well ... that what was being produced was unlawful to sell.” Tr. at 7 (Brokate). Mr. Helou’s sales pitch at BNY was that he sold counterfeit, not genuine, Coach products: the BNY price list stated that “all styles pictured in [BNY’s] catalog are Coach look-a-likes,” Tr. at 55; Pl.’s Ex. 6 (BNY price list) (emphasis added); the BNY catalog and showroom racks identified the BNY bags by Coach style numbers, Tr. at 19, 29-31; Pl.’s Ex. 5 (catalog); and Mr. Helou told customers that he could sell them items he showed them in Coach catalogs, Tr. at 21, 27. Further evidencing willfulness is Sara Lee’s proof that the defendants persisted from at least June 1996 to. September 1998 in the face of repeated and clear official determinations that their operations were illegal counterfeiting. 2. Efforts to Mislead and Conceal The defendants concealed evidence and lied under oath to mislead the plaintiffs and the court. At every stage, Mr. Helou, through his sworn testimony and his counsel, protested that he had stopped committing any infringements, only to be caught" }, { "docid": "2766101", "title": "", "text": "attorneys’ ultimate success; the need for time-consuming investigation of the defendants’ clandestine operations; and the culpability of the defendants for the past two years of extensive efforts to enforce the injunction against then counterfeiting. Accordingly, the court finds reasonable, and awards a recovery of, the requested $46,-045.63 in attorney fees and costs, divided between the $38,065.38 requested by Mr. Smart and the $7;980.25 requested by Mr. Brokate. III. Conclusion For the above reasons, the court awards the plaintiff $750,000 in statutory damages as well as $46,045.63 in attorney fees and costs to be divided as per the attorney submissions. The defendants are liable on these awards jointly and severally. . There are only three recorded cases because the 1996 Act was enacted only on July 2, 1996, as Pub.L. 104-153, § 7, 110 Stat. 1388. The one case that was not a default judgment, Playboy Enter., Inc. v. Universal Tel-A-Talk, Inc., et al., No. Civ. A. 96-6961, 1998 WL 767440 (E.D.Pa. Nov.3, 1998), found statutory damages to be ail appropriate remedy for infringements that caused no proved actual damages. Id. at *8. . In this case, the District Court’s original award was $25,000 or $50,000 from each of the nine defendants, depending on whether the defendant faced one or both of the plaintiffs. See Gucci Am., Inc., et al. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 399 (S.D.N.Y.1998). The District Court later reopened the issue of damages and decreased this award. See Guess?, Inc. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 409 (S.D.N.Y.1998) (decreasing award from $25,000 to $4,500). In response to the decrease, the Second Circuit \"reverse[d] and order[ed] reinstatement of the original monetary judgments!,] conclud[ing] that the district court erred in granting the motion to vacate the damages portion of the judgments.” Gucci Am., Inc., et al. v. Gold Ctr. Jewelry, et al., 158 F.3d 631, 635 (2d Cir.1998). The Second Circuit reversed only the decrease of the original award; it explicitly affirmed all other determinations of the District Court, such as the factual findings, the original statutory damages award, and the award of attorney fees." }, { "docid": "20036561", "title": "", "text": "ELLINGTON trademarks in the marketing and promotion of a cognac, but the negotiations were unsuccessful. However, Defendants proceeded to use the trademarks without authorization. Courts are vested with broad discretion when determining statutory damages under the Lanham Act, in part because of the paucity of statutory guidance. See Sara Lee Corp. v. Bags of New York, Inc., 36 F.Supp.2d 161, 165-66 (S.D.N.Y.1999). There is little evidence in the complaint of how extensive or widespread the infringement actually was. Indeed, Defendants were promoting and marketing “Duke Ellington XO Cognac,” but there is no evidence as to how many bottles of cognac Defendants actually sold or attempted to sell. On the other hand, Defendants are in the business of selling celebrity-branded liqueurs and their infringement directly relates to their business model. Moreover, “there is no necessary mathematical relationship between the size of such an award and the extent or profitability of the defendant’s wrongful activities.” Gucci Am., Inc. v. Gold Ctr. Jewelry, 997 F.Supp. 399, 404 (S.D.N.Y.), modified on other grounds, 997 F.Supp. 409 (S.D.N.Y.), rev’d on other grounds, 158 F.3d 631 (2d Cir.1998). Accordingly, I find that based on the facts alleged in the complaint, $325,000 is an appropriate award for damages. 3. Attorney’s Fees Plaintiff chose not to pursue attorney’s fees if the Court grants statutory damages. (PL Supp. Mot. 15.) I decline to recommend any attorney’s fees or costs because I agree with Plaintiff that the recommended statutory damages adequately compensate Plaintiff. 4. Injunctive Relief In addition to damages, Plaintiff also seeks a permanent injunction restraining and enjoining Defendants from using the DUKE ELLINGTON trademarks. (Compl. at wherefore clause ¶ 2.) It also requests a turnover of all, inter alia, products bearing the DUKE ELLINGTON trademarks and an affidavit confirming that Defendants have complied with the injunction. (Compl. at wherefore clause ¶¶ 3-4.) Section 34(a) of the Lanham Act provides Courts with the “power to grant injunctions, according to the principles of equity and upon such terms as the Court may deem reasonable, to prevent the violation of any right of the registrant of a mark registered in the" }, { "docid": "2766079", "title": "", "text": "was willful, not more than $1,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just. 15 U.S.C. § 1117(c). This is an alternative to traditional awards based on actual losses under § 1117(a),(b). Under § 1117(a), a “plaintiff shall be entitled ... to recover (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action.” Courts have discretion under § 1117(a) to increase the award to three times actual damages or to otherwise adjust the award, but only to “constitute compensation and not a penalty.” Under § 1117(b), willful violations automatically merit treble profits or damages and attorney fees “unless the court finds extenuating circumstances.” Unlike § 1117(a), which merely permits trebling of damages in the court’s discretion, § 1117(b) requires trebling of damages upon a finding of willfulness, absent extenuating circumstances. Also unlike § 1117(a) is what the Second Circuit has termed “the punitive nature of the treble damages provision” under § 1117(b), which trebles damages not to compensate as under § 1117(a), but “to deter potential counterfeiters.” Louis Vuitton S.A., et al. v. Spencer Handbags Corp., 765 F.2d 966, 970 (2d Cir.1985). These distinctions among § 1117(a),(b),(c) clarify the nature of § 1117(c) awards: § 1117(a) provides strictly compensatory relief; § 1117(b) provides strictly capped punitive relief; and § 1117(e) provides both compensatory and punitive relief without the strict limits of § 1117(a),(b). While § 1117(c) looks to compensatory considerations (e.g., actual losses and trademark value), it also looks to punitive considerations (e.g., deterrence of other infringers and redress of wrongful defense conduct). See infra Part II.B. Thus, damages inquiries under § 1117(e) and those under § 1117(a),(b) look to similar considerations but differ in that under § 1117(c), “there is no necessary mathematical relationship between the size of such an award and the extent or profitability of the defendant’s wrongful activities” because § 1117(c) omits the strict limits on compensatory and punitive relief of § 1117(a),(b). Gucci Am., Inc., et al. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 399," }, { "docid": "15674704", "title": "", "text": "or (2) if the court finds that the use of the counterfeit mark was willful, not more than $2,000,000 per counterfeit mark .... 15 U.S.C. § 1117(c); see Sara Lee Corp. v. Bags of New York, Inc., 36 F.Supp.2d at 164-65. A counterfeit mark is defined as “a spurious mark which is identical with, or substantially indistinguishable from, a registered mark.” 15 U.S.C. § 1127. A party may be held liable for trading on a counterfeit mark whether or not that party knew the mark was registered. 15 U.S.C. § 1116(d)(1)(B)(i). “Section 1117(c) was enacted to address the difficulty of calculating actual damages caused by counterfeiters.” Ermenegildo Zenga Corp. v. 56th St. Menswear, Inc., No. 06 CV 7827, 2008 WL 4449533, at *4 (S.D.N.Y. Oct. 2, 2008). An award of statutory damages may be designed not only to compensate the plaintiff, but also to deter the defendant and others from future infringing activities. See Gucci America, Inc. v. MyReplicaHandbag.com, No. 07 CV 2438, 2008 WL 512789, at *3 (S.D.N.Y. Feb. 26, 2008). In addition, one factor that courts look to in determining the size of an award is whether the defendant “has cooperated in providing particular records from which to assess the value of the infringing material produced.” Gucci America, Inc. v. MyReplicaHandbag.com, 2008 WL 512789, at *3 (internal quotation marks omitted). Damage awards entered by district courts in New York under section 1117(c) have ranged from $55,000 to $1,000,000 per counterfeit mark. See id. at *5 & nn. 1-3 (citing cases). Willfulness means “ ‘knowledge that [a defendant’s] conduct represented infringement or perhaps recklessly disregarded the possibility.’ ” Nike, Inc. v. Top Brand Co., No. 00 CV 8179, 2005 WL 1654859, at *6 (S.D.N.Y. July 13, 2005) (quoting Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283, 288 (2d Cir.1999)). “When a defendant has defaulted, then by virtue of its default it is deemed to be a willful infringer.” Gucci America, Inc. v. MyReplicaHandbag.com, 2008 WL 512789, at *3; accord Tiffany (NJ) Inc. v. Luban, 282 F.Supp.2d 123, 124 (S.D.N.Y.2003). Here, plaintiffs seek statutory damages in connection with the sale of" }, { "docid": "15436218", "title": "", "text": "understood to mean instances of “fraud or bad faith,” Twin Peaks Productions v. Publications International, Ltd., 996 F.2d 1366, 1383 (2d Cir.1993) (quoting Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1004 (9th Cir.1985)), or “willful infringement,” Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 854 (2d Cir.1995). The District Court awarded the Plaintiff its attorney’s fees in the amount of $250,351.56 because of the Defendants’ misconduct in presenting fraudulent documents during the course of the litigation. That ruling raises the issue of whether attorney’s fees may be awarded in Lanham Act litigation not only for willful infringement but also for acts of fraud in the course of conducting trademark litigation. Prior to Judge Martin’s fee award in this case, two other judges of the Southern District had relied on misconduct in the course of trademark litigation to support an award of attorney’s fees, although the litigation misconduct was in addition to willful infringement. See Sara Lee Corp. v. Bags of New York, Inc., 36 F.Supp.2d 161, 170 (S.D.N.Y.1999) (Motley, J.); Guess?, Inc. v. Gold Center Jewelry, 997 F.Supp. 409, 412 (S.D.N.Y.1998) (Kaplan, J.). In the pending case, an award of attorney’s fees would not have been warranted in the absence of the litigation misconduct because the Defendants had a good faith basis for resisting the Plaintiffs suit in view of the PTO Examiner’s ruling that the Plaintiff could not use its mark for sauces. We agree with Judge Martin that fraudulent conduct in the course of conducting trademark litigation permits a finding that a case is “exceptional” for purposes of an attorney’s fee award under the Lanham Act. Although such misconduct might be sanctioned as a contempt or pursuant to 28 U.S.C. § 1927 without a shifting of all attorney’s fees, a party that seeks to prevail in trademark litigation through fraudulent means has no basis for complaint that it risks liability for its adversary’s attorney’s fees. And the need to deter such misconduct justifies an award of up to the entire fee, in the exercise of a district judge’s discretion, without the need for" }, { "docid": "3541082", "title": "", "text": "be similar enough to evidence copying by Tang). Plaintiff alleges that its infringed photograph of a POWTECH extension cord appears in both its 1997 flyer and its 1998 catalog. Cpt. ¶ 65. The photograph that appears in the 1997 flyer, however, is not the same photograph that appears in Tang's catalogs or Eastern’s 1998 catalog. The photograph in the 1997 flyer does not have the same white smudge as the others, nor are the ends of the cord positioned in the same manner. Thus, plaintiff has not proven that the photograph in its 1997 flyer was copied by Tang. Compare PX 8-2-12 with PX 22-8 and 22-28. . 17 U.S.C. § 504(a). . In order to establish the infringer’s profits, the copyright owner must present proof of the infringer’s gross revenue. 17 U.S.C. § 504(b). . Id. § 504(c). . Id. . See Guess?, Inc. v. Gold Center Jewelry, 997 F.Supp. 409, 411 (S.D.N.Y.), rev’d on other grounds sub nom. Gucci America, Inc. v. Gold Center Jewelry, 158 F.3d 631 (2d Cir.1998); see also F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233, 73 S.Ct. 222, 97 L.Ed. 276 (1952); N.A.S. Import Corp. v. Chenson Enter., Inc., 968 F.2d 250, 252-53 (2d Cir.1992); Fitzgerald Publishing Co. v. Baylor Publishing Co., 807 F.2d 1110, 1117 (2d Cir.1986). . The statutory range provided in 17 U.S.C. § 504(c) was increased recently. The Court need not decide whether the current or the prior range governs this case as it would reach the same result under either range. . 17 U.S.C. § 504(c)(1). . See Stokes Seeds Ltd. v. Geo. W. Park Seed Co., 783 F.Supp. 104 (W.D.N.Y.1991). . Because the remedies for plaintiffs claim of unfair competition arising from infringement of its copyrights are no greater than those imposed by the Court for Tang's copyright violations, the Court denies plaintiffs claim of unfair competition related to Tang's copying of its photographs. The Court does not find Tang's conduct sufficiently “gross, wanton, or willful[ly] fraudulent]’’ to merit punitive damages for unfair competition. See Getty Petroleum Corp. v. Island Transportation Corp., 878 F.2d" }, { "docid": "2766081", "title": "", "text": "404 (S.D.N.Y.), modified on other grounds, 997 F.Supp. 409 (S.D.N.Y.), rev’d on other grounds, 158 F.3d 631 (2d Cir.1998). See also, e.g., Playboy Enter., Inc. v. Universal Tel-A-Talk, Inc., et al., No. Civ. A. 96-6961, 1998 WL 767440, at *8 (E.D.Pa. Nov.3, 1998) (“[Djefendants did not have any profits and plaintiff has failed to prove actual damages. Nevertheless, ... plaintiff may elect to recover statutory damages.”). B. Criteria for Statutory Damages Determination 1. Broad Judicial Discretion in Setting Amount of Damages Statutory damages are most appropriate when infringer nondisclosure during fact finding leaves damages uncertain. This problem motivated the enactment of § 1117(c) in the 1996 Act: The creation of this alternative to the more traditional damage remedies of recovery of the plaintiffs damages or the defendant’s profits reflected a harsh reality — counterfeiters often do not keep or secrete records of their unlawful activities, thus making proof of the extent of the plaintiffs injury or the counterfeiters’ profits impossible as a practical matter. Guess?, Inc. v. Gold Center Jewelry, 997 F.Supp. 409 (S.D.N.Y.) (citing S.Rep. No. 177, 104th Cong., 2d Sess. (1995)), rev’d on other grounds, 158 F.3d 631 (2d Cir.1998). The fact that infringer nondisclosure is a key reason for statutory damages explains why two of the three cases applying § 1117(c) are judgments against infringers who, after commencement of litigation, defaulted and continued their wrongdoing. See Gucci Am., Inc., et al. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 399 (S.D.N.Y.), modified on other grounds, 997 F.Supp. 409 (S.D.N.Y.), rev’d on other grounds, 158 F.3d 631 (2d Cir.1998); Playboy Enterprises, Inc. v. Asiafocus Intern. Inc., et al., No. Civ. A. 97-834-A, 1998 WL 724000 (E.D.Va. Apr. 10, 1998). “The statute itself does not afford much guidance as to how the courts are to fix appropriate amounts in statutory damage cases.” Guess?, Inc. v. Gold Ctr. Jewelry, et al., 997 F.Supp. 409, 411 (S.D.N.Y.), rev’d on other grounds, 158 F.3d 631 (2d Cir.1998). The 1996 Act limited its textual guidance purposefully, however; it specifically provided for broad judicial discretion in instructing that “as the court considers just,” it" }, { "docid": "2766085", "title": "", "text": "deterrent effect on others besides the defendant ... [and] the potential for discouraging the defendant ... factor[ ] into the determination of the award” because “[ajwards of statutory damages serve two purposes — compensatory and punitive.” Id. Accord N.A.S. Import, Corp., et al. v. Chenson Enter., Inc., 968 F.2d 250, 252 (2d Cir.1992) (“[T]he ‘statutory rule, formulated after long experience, not merely compels restitution of profit and reparation of injury but also is designed to discourage wrongful conduct.’ ”) (quoting F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233, 73 S.Ct. 222, 97 L.Ed. 276 (1952)). The second and third sets of factors distinguish statutory damages under § 1117(c) from traditional Trademark Act damages un der § 1117(a),(b). Courts applying § 1117(a),(b) must base awards on actual losses, with limited upward flexibility. Under § 1117(a), increased awards still must constitute compensation, not a penalty; under § 1117(b), increased awards for punitive and deterrence purposes are limited to three times actual losses. In contrast, in interpreting Copyright Act language parallel to that in the 1996 Act codified as 15 U.S.C. § 1117(c), the Second Circuit has held that uncapped statutory damages under 17 U.S.C. § 504(c)(1),(2) may be punitive as necessary to deter the defendants, to deter others, and to redress wrongful litigation conduct. See N.A.S. Import, Corp., 968 F.2d at 252; Fitzgerald Pub. Co., 807 F.2d at 1117. 3. The Three 1998 District Court Cases Applying § 1117(c) In the three existing § 1117(c) cases, District Court awards have paralleled the Copyright Act precedents. Playboy Enter., Inc. v. Universal Tel-A-Talk, Inc., et al., No. Civ. A. 96-6961, 1998 WL 767440, at *8 (E.D.Pa. Nov.3, 1998), found no willfulness and awarded $10,000 in statutory damages. The other cases awarded sums of six or seven figures after finding the sort of aggravating circumstances the Copyright Act precedents establish as factors in statutory damages determinations. See Playboy Enter., Inc. v. Asiafocus Int’l, Inc., et al., No. Civ. A. 97-834-A, 1998 WL 724000 (E.D.Va. Apr. 10, 1998) (awarding $3,000,000 with per-infringement statutory damage awards of $500,000 to $1,000,000); Gucci Am., Inc., et" }, { "docid": "12433872", "title": "", "text": "counterfeiting activity actually engaged in, making proving actual damages in these cases extremely difficult if not impossible. See id. 27. In the absence of clear guidelines for setting a statutory damage award, courts have tended to use their wide discretion to compensate plaintiffs, as well as to deter and punish defendants, often borrowing from factors developed in fixing a statutory damage award for copyright infringement. See Rolex Watch U.S.A., Inc. v. Brown, No. 01 Civ. 9155 JGK AJP, 2002 WL 1226863, at *2 (S.D.N.Y. June 5, 2002) (awarding $1 million maximum without multiplication for. multiple marks where plaintiffs sought $1 million for each mark); Rolex Watch U.S.A., Inc. v. Jones, No. 99 Civ. 2359(DLC)(FM), 2002 WL 596354, at *5-6 (S.D.N.Y. Apr. 17, 2002) (awarding $500,000 for internet sales); Microsoft Corp. v. Wen, No. C 99-04561, 2001 WL 1456654, at *5 (N.D.Cal. Nov.13, 2001) (plaintiffs argued entitlement to maximum of $1 million for each of nine counterfeit marks, but only sought a total of $450,000 which court granted); Microsoft Corp. v. Logical Choice Computers, Inc., No. 99 C 1300, 2001 WL 58950, at *11 (N.D.Ill. Jan.22, 2001) (court granted plaintiffs’ request for $200,00 for each of seven trademarks); Microsoft Corp. v. Compusource Distrib., Inc., 115 F.Supp.2d 800, 811-12 (E.D.Mich.2000) (plaintiffs argued entitlement to maximum of $1 million for each of eight counterfeit marks, but only sought a total of $100,000 for each mark; court awarded $50,000 for each mark for “egregious conduct”); Sara Lee Corporation v. Bags of New York, Inc., 36 F.Supp.2d 161 (S.D.N.Y.1999) (awarding $750,000); Playboy Enter., Inc. v. Smith, No. Civ.A. 97-734-A, 1998 WL 724000, at *8-9 (E.D.Va. Apr.10, 1998); (determining that maximum award warranted .because of “broad, extensive, blatant, and. willful” internet sales, but that award should be lowered to $500,000 for each merchandise category); Playboy, 1998 WL 767440, at *9 (awarded $10,000). 28. In analyzing the appropriate statutory award for copyright infringement eases; courts consider the defendant’s profits, as well as- saved expenses, the plaintiffs lost revenues, and the defendant’s- state of mind. See Palmer v. Slaughter, No. Civ.A. 99-899-GMS, 2000 WL 1010261, at *3 (D.Del." }, { "docid": "9808839", "title": "", "text": "provide guidelines for courts to use in determining an appropriate award,” Louis Vuitton Malletier v. Veit, 211 F.Supp.2d 567, 583 (E.D.Pa.2002), as it is only limited by what “the court considers just.” 15 U.S.C. § 1117(c). However, courts have found some guidance in the caselaw of an analogous provision of the Copyright Act, 17 U.S.C. § 504(c), which also provides statutory damages for willful infringement. See, e.g., Louis Vuitton, 211 F.Supp.2d at 583; Sara Lee Corp. v. Bags of N.Y., Inc., 36 F.Supp.2d 161, 166 (S.D.N.Y.1999). Under the Copyright Act, courts look to factors such as: (1) “the expenses saved and the profits reaped;” (2) “the revenues lost by the plaintiff;” (3) “the value of the copyright;” (4) “the deterrent effect on others besides the defendant;” (5) “whether the defendant’s conduct was innocent or willful;” (6) “whether a defendant has cooperated in providing particular records from which to assess the value of the infringing material produced;” and (7) “the potential for discouraging the defendant.” Fitzgerald Pub. Co., Inc. v. Baylor Pub. Co., 807 F.2d 1110, 1117 (2d Cir.1986). To the extent possible, statutory damages “should be woven out of the same bolt of cloth as actual damages.” See 4 Melville B. Nimmer & David Nimmer, Nim-mer on Copyright § 14.04[E][1], at 14-69 (2003). Under Section 35 of the Lanham Act, actual damages for a willful violation generally include three times the amount of the defendant’s profits or the plaintiffs losses (whichever is greater), plus attorney’s fees. See 15 U.S.C. § 1117(b). Under the statutory damages provision applicable here, the parties agreed in their joint pretrial order that a willful violation would give the Court discretion to award between $2,000 and $2 million in damages. Not surprisingly, DFA and Soren urge the Court to award Gucci only $2,000 in damages, and Gucci seeks the full $2 million. After considering the factors explained above, the Court considers just an award of $2 million. First, the Court examines DFA’s ill-gotten profits. As stated, DFA wrote about $250,000 in checks to Harvest Wrap which were marked with “Gucci.” Comparing the proportion of Gucci checks" } ]

[ { "docid": "9966971", "title": "", "text": "under ... this title does not discharge an individual debtor from any debt ... for money ... to the extent obtained by ... use of a statement in writing — (1) that is materially false; (ii) respecting the debtors ... financial condition; (iii) on which the creditor to whom the debtor is liable for such money ... reasonably relied; and (iv) that the debt- or caused to be made or published with intent to deceive; ... Because the dischargeability of a certain debt will affect the debtors’ ability to obtain a fresh start, these exceptions must be strictly construed against creditors and in favor of debtors. In re Cerar, 84 B.R. 524 (Bankr.C.D.Ill.1988); In re Burke, 83 B.R. 716 (Bankr.D.N.D.1988); In re Ramonat, 82 B.R. 714 (Bankr.E.D.Pa.1988); Matter of Ethridge, 80 B.R. 581 (Bankr.M.D.Ga.1987). The creditor must prove each element by clear and convincing evidence. In re Black, 787 F.2d 503 (10th Cir.1986); In re Hunter, 780 F.2d 1577 (11th Cir.1986); In re Bonnett, 73 B.R. 715 (C.D.Ill.1987); Matter of Ayers, 83 B.R. 83 (Bankr.M.D. Ga.1988); In re Denkler, 79 B.R. 749 (Bankr.W.D.Tenn.1987). In the case at bar Fleet must prove that: (1) the Liptaks provided Fleet with a written statement of their financial condition; (2) said statement was materially false; (3) Fleet reasonably relied on the financial statement; and (4) the Liptaks made or published the statement with the intent to deceive. See In re Black, supra; In re Figueredo, 84 B.R. 856 (Bankr.S.D.Fla.1988); In re Picou, 81 B.R. 152 (Bankr.S.D.Fla.1988); In re Lesher, 80 B.R. 121 (Bankr.E.D.Ark.1987). The only issue to be litigated was the intent of the Liptaks. Knowing that defendants will rarely if ever admit to having possessed an intent to deceive or defraud another, the courts have allowed the use of circumstantial evidence to reach such a finding. The standard for decision includes recklessness, indifference, and/or disregard for accuracy. In re Black, supra; In re Martin, 761 F.2d 1163 (6th Cir.1985); Matter of Duncan, 81 B.R. 665 (Bankr.M.D.Fla.1987); In re Lesher, supra. Fleet elicited sufficient testimony from the Liptaks and its own witness to prove" } ]

[ { "docid": "17620174", "title": "", "text": "nondischargeable un der section 523(a)(2)(B) “because the promissory note contains materially false statements about [the debtor’s] financial condition upon which Nunzio Carto, Jr. reasonably relied, and the facts show that Debtor made these statements in order to deceive Nunzio Carto, Jr. and induce him to loan the Defendant $65,000.00.” Debt- or’s Posttrial Memorandum, at 13 (unpagi-nated). A creditor must prove the following to establish nondischargeable relief under subsection 523(a)(2)(B): Subsection (2)(B) ... was designed to bar the bankruptcy discharge of a debt obligation that was induced by a false written statement of the debtor’s financial condition.... In order to satisfy subsection (2)(B), a creditor must prove five elements: (1) “use of a statement in writing,” (2) “that [was] materially false,” (3) “respecting the debtor’s ... financial condition,” (4) “on which the creditor ... reasonably relied,” and (5) “that the debtor caused to be made or published with intent to deceive.” § 523(a)(2)(B). In re Sharp, 340 Fed.Appx. 899, 901 (4th Cir.2009); see also In re Cohn, 54 F.3d 1108, 1114 (3d Cir.1995): The burden of proving that a debt is nondischargeable under § 523(a) is upon the creditor, who must establish entitlement to an exception by a preponderance of the evidence.... Thus, pursuant to § 523(a)(2)(B), INA must prove that Cohn used a statement in writing: (1) that is materially false; (2) respecting his financial condition; (3) upon which INA reasonably relied; and (4) with the intent to deceive INA. “Section 523(a)(2)(B) does not cover every material statement of fact made in writing to the creditor to induce the credit. It is confined in its application to statements about the financial condition of the debtor[.]” In re Bashor, 2011 WL 4595508, at *5-*6 (W.D.N.C. Sept. 29, 2011) (citing 4 Collier on Bankruptcy § 523.08[2][c]). “To satisfy section 523(a)(2)(B), the statement must do more than just prompt speculation about the debtor’s finances. It must be ‘sufficient to determine financial responsibility.’ Transactional documents that merely imply a certain financial status, on the other hand, will not.” In re Brzakala, 305 B.R. 705, 709 (Bankr.N.D.Ill.2004) (quoting In re Price, 123 B.R. 42, 45" }, { "docid": "1799961", "title": "", "text": "with intent to deceive; ... Since the dischargeability of a debt can significantly affect a debtor’s ability to make a fresh start, the exceptions to dischargeability set forth in 11 U.S.C. § 523(a)(2)(B) are to be strictly construed against the creditor and in favor of the debtor. In re Ward, 88 B.R. 727 (Bankr.W.D.Pa.1988). The creditor must prove each and every element of a given exception to discharge by clear and convincing evidence. In re Ward, supra at 729. Horowitz must prove each of the following in order to establish that the above debts to it are nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(B): (1) that Debtor provided Horowitz with a written statement of her financial condition; (2) that the statement was materially false; (3) that Horowitz reasonably relied on it; and (4) that Debtor caused it to be made or published it with intent to deceive Horowitz. See In re Liptak, 89 B.R. 3 (Bankr.W.D.Pa.1988). In addition to its being reasonable, the reliance by the creditor must be detrimental in order for the debt arising out of that reliance to be nondischargeable under 11 U.S.C. § 523(a)(2)(B). In re Long, 44 B.R. 300 (Bankr.D.Minn.1983); In re Richards, 81 B.R. 527 (Bankr.D.Minn. 1987). Proof of detrimental reliance lies with the creditor who brings an action pursuant to § 523(a)(2)(B). In re Richards, supra at 531. Numerous courts have adopted this principle by making it one of the essential elements of a § 523(a)(2)(B) action. The creditor must have suffered the alleged damage or loss as the proximate result of the representations. See, e.g., In re Hott, 99 B.R. 664 (Bankr.W.D. Pa.1989). COUNT I HOROWITZ v. VIRGINIA C. HALL GUARANTY AND SURETYSHIP AGREEMENT Debtor does not deny that she provided Horowitz with a written statement of her financial condition in connection with the $600,000.00 loan and could not seriously deny that it was materially false. These matters do not appear to be at issue here. Rather, Debtor denies that she published it with intent to deceive Horowitz and denies that Horowitz reasonably relied on the financial statement. This Court does not" }, { "docid": "17997362", "title": "", "text": "paid them to Dr. Rodriguez. It now seeks to bar the discharge of the debt pursuant to 11 U.S.C. § 523(a)(2)(B). We agree with the position of LIT and find the subject debt nondis-chargeable in bankruptcy. II DISCUSSION A debtor may be denied a discharge of a debt incurred because of a false financial statement. 11 U.S.C. § 523(a)(2)(B) provides: (a) A discharge under section 727,1141 or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for obtaining money, property, services, or an extension, renewal, or refinance of credit, by— ****** (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 obtaining such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive. The creditor seeking nondis-chargeability of a debt has the burden of proving each element of the above section. The appropriate standard of proof necessary to satisfy this burden is by a showing of clear and convincing evidence. In re DeRosa, 20 B.R. 307, 311 (Bkrtcy.S.D.N.Y.1982); Matter of Newmark, 20 B.R. 842, 853 (Bkrtey.E.D.N.Y.1982); In re Magnusson, 14 B.R. 662, 667, 8 B.C.D. 708 (Bkrtcy.N.D. N.Y.1981); In re Brian K. Callery, 6 B.R. 527, 529 (Bkrtcy.S.D.N.Y.1980). The court finds that the plaintiff has satisfied this burden and standard. Accordingly, the obligation of the debtor to the plaintiff is deemed nondischargeable. The following is a discussion of the above elements. A. Materiality The debtor issued a financial statement that was materially false. A “materially false” statement sufficient to render a debt nondischargeable means a substantial or important untruth. Magnusson, supra; In re Torneo, 1 B.R. 673, 676 (Bkrtcy.E.D.Pa.1979). What is substantial is always a question of fact. An understatement of a debtor’s liability by approximately 25 per cent, Magnusson, supra, as well as an overstatement by $12,000 of the value of real property owned by the debtor, In re Voeller, 14 B.R. 857 (Bkrtcy.D.Mont.1981), have both been held to" }, { "docid": "4708951", "title": "", "text": "Dischargeability Under 11 U.S.C. § 523(a)(2)(B) The first two of Plaintiff’s three Counts invoke § 523(a)(2)(B) which excepts from discharge any debt for money or property to the extent it was obtained by the use of a written statement: (i)that is materially false; (ii)respecting the debtor’s financial condition; (iii)on which the creditor to whom the debtor is liable for such money or property reasonably relied; and (iv)that the debtor made with intent to deceive. 11 U.S.C. § 523(a)(2)(B). A creditor must prove all of the above elements to prevail. In re Jones, 88 B.R. 899, 903 (Bkrtcy.E.D.Wis.1988). The standard of proof regarding § 523 litigation in this District is a “preponderance of the evidence”. In re Garner, 73 B.R. 26, 29 (Bkrtcy.W.D.Mo.1987). In light of the Code’s strong “fresh start” policy, discharge provisions under the Code are construed strictly against the objecting creditor and liberally in favor of the debtor. In re Stelweck, 86 B.R. 833, 845 (Bkrtcy.E.D. Pa.1988). Another important, and often competing, policy of the Code related to the discharge provisions is that debts incurred through a debtor’s fraudulent conduct do not deserve the Code’s protection and are nondischargeable. Matter of Bogstad, 779 F.2d 370, 373 n. 4 (7th Cir.1985). In reconciling the inherent tension between these two policies, the debtor’s fresh start merits greater protection than the rights of creditors who act unreasonably. In re Newmark, 20 B.R. 842, 861 (Bkrtcy.E.D.N.Y. 1982); see also In re Brewood, 15 B.R. 211, 215 (Bkrtcy.D.Kan.1981). The \"fresh start” policy mandates, however, that exceptions to discharge “be confined to those plainly expressed” in the Code. Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed. 717 (1915). In a previous application of § 523(a)(2)(B), the Court likened the provision to a slalom ski event in which the “contestant is required to pass through a certain number of gates in a certain sequence” to remain qualified upon reaching the finish. In re Savich, 82 B.R. 1011, 1012 (Bkrtcy.W.D.Mo.1988). Should Plaintiff miss but one gate, he cannot prevail no matter what else he proves. Id. Plaintiff is clearly owed a" }, { "docid": "17620173", "title": "", "text": "just noted, Mr. Carto also seeks relief under 11 U.S.C. § 523(a)(2)(A) and (B). Section 523(a)(2) states that “[a] discharge under section 727 ... 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; [or] (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 deceived] See generally Field v. Mans, 516 U.S. 59, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995); In re Brady, 243 B.R. 253, 258 (E.D.Pa.2000); In re Lee, 2000 WL 815928, at *2 (Bankr.E.D.Pa. June 21, 2000). The plaintiff contends that his claim against the debtor is nondischargeable un der section 523(a)(2)(B) “because the promissory note contains materially false statements about [the debtor’s] financial condition upon which Nunzio Carto, Jr. reasonably relied, and the facts show that Debtor made these statements in order to deceive Nunzio Carto, Jr. and induce him to loan the Defendant $65,000.00.” Debt- or’s Posttrial Memorandum, at 13 (unpagi-nated). A creditor must prove the following to establish nondischargeable relief under subsection 523(a)(2)(B): Subsection (2)(B) ... was designed to bar the bankruptcy discharge of a debt obligation that was induced by a false written statement of the debtor’s financial condition.... In order to satisfy subsection (2)(B), a creditor must prove five elements: (1) “use of a statement in writing,” (2) “that [was] materially false,” (3) “respecting the debtor’s ... financial condition,” (4) “on which the creditor ... reasonably relied,” and (5) “that the debtor caused to be made or published with intent to deceive.” § 523(a)(2)(B). In re Sharp, 340 Fed.Appx. 899, 901 (4th Cir.2009); see also In re Cohn, 54 F.3d 1108, 1114 (3d Cir.1995): The burden of" }, { "docid": "4708950", "title": "", "text": "debts at issue and request relief under 11 U.S.C. 523(d) for their costs and reasonable attorney’s fees. In addition to their Answer, Debtors filed a two count Counterclaim against Plaintiff. In Count I Debtors claim that upon repossessing the Residential Property, Plaintiff converted for his own use personal property belonging to Debtors valued at $150.00. Count II alleges that during the parties’ partnership, Plaintiff converted partnership property for his own use and thereby breached his purported fiduciary duty to Debtors. QUESTIONS PRESENTED 1. Whether the judgment debt underlying the parties’ lease-purchase agreement meets the requirements of a nondischargeable debt under 11 U.S.C. § 523(a)(2)(B). 2. Whether a Bankruptcy’s Court’s traditional equitable powers enable it to treat a comaker of a loan as a “creditor” who has standing to challenge the dischargeability of a debt under 11 U.S.C. § 523(a)(2)(B). 3. Whether a general fiduciary relationship exists between business partners within the meaning of the 11 U.S.C. § 523(a)(4), which makes a debt nondischargeable for fraud or defalcation while acting in a fiduciary capacity. DISCUSSION I. Dischargeability Under 11 U.S.C. § 523(a)(2)(B) The first two of Plaintiff’s three Counts invoke § 523(a)(2)(B) which excepts from discharge any debt for money or property to the extent it was obtained by the use of a written statement: (i)that is materially false; (ii)respecting the debtor’s financial condition; (iii)on which the creditor to whom the debtor is liable for such money or property reasonably relied; and (iv)that the debtor made with intent to deceive. 11 U.S.C. § 523(a)(2)(B). A creditor must prove all of the above elements to prevail. In re Jones, 88 B.R. 899, 903 (Bkrtcy.E.D.Wis.1988). The standard of proof regarding § 523 litigation in this District is a “preponderance of the evidence”. In re Garner, 73 B.R. 26, 29 (Bkrtcy.W.D.Mo.1987). In light of the Code’s strong “fresh start” policy, discharge provisions under the Code are construed strictly against the objecting creditor and liberally in favor of the debtor. In re Stelweck, 86 B.R. 833, 845 (Bkrtcy.E.D. Pa.1988). Another important, and often competing, policy of the Code related to the discharge provisions is that" }, { "docid": "8311426", "title": "", "text": "proved by clear and convincing evidence. Haxby v. National Boulevard Bank of Chicago, 90 B.R. 340 (N.D.Ill.1988); In re Figge, 94 B.R. 654 (Bankr.C.D.Calif.1988); In re Liptak, 89 B.R. 3 (Bankr.W.D.Pa.1988). The parties agree that Defendant did in fact obtain money as a result of his submission to Plaintiff of a written statement of his financial condition. It does not appear that Defendant questions Plaintiff’s reliance on the statement and it is clear that Plaintiff’s loss was proximately caused by Debtor’s financial statement. It is not clear if Defendant concedes that the omission of the student loan caused the statement to be materially false; however, based upon his testimony regarding alleged instructions to omit it, we presume that issue is contested. The major contended issue is whether Defendant intentionally deceived Plaintiff as to his true financial status in order to obtain the funds. Material falsity has been defined as “an important or substantial untruth”. In re Jones, 88 B.R. 899, 903 (Bankr.E.D.Wis.1988), quoting Matter of Bogstad, 779 F.2d 370 (7th Cir.1985). It includes any omission, concealment or understatement of the Defendant’s material liabilities. In re Jones, supra. By omitting his single largest debt, a debt which by itself is as great as the remainder of his debt in combination, Defendant created a material falsity in his financial statement. The reason for the omission is relevant to intent, not materiality. The decision of this Court then, will be determined by issues of credibility. Under § 523(a)(2)(B) a rebuttable presumption of intent to deceive arises by use of a false statement. In re Jones, supra. Defendant can rebut the presumption; and the Plaintiff will bear the ultimate burden of proof. Knowing, however, that the Defendant will rarely if ever admit to such an intent, the courts have permitted the use of circumstantial evidence of the intent. In re Liptak, supra. Thereafter, the Defendant cannot overcome the inference by making additional unsupported declarations of veracity. In re Jones, supra. The standard for decision includes recklessness, indifference, and/or disregard for accuracy. In re Martin, 761 F.2d 1163 (6th Cir.1985); In re Liptak, supra. Defendant" }, { "docid": "9967318", "title": "", "text": "income ratio would have been substantially higher than ITT’s 50% cut-off ratio. On July 9, 1987, the Debtors signed a Disclosure Statement, Note and Security Agreement, which reflects that the total amount obtained by the Debtors was $2,659.56; $673.22 of which was used by the Debtors to pay off their first loan with ITT. (Joint Exh. 1) Based on the foregoing, it is the contention of ITT that the debt should be determined to be nondischargeable pursuant to § 523(a)(2)(B) of the Bankruptcy Code, which provides as follows: § 523. Exceptions to discharge (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (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; It is now well established that exceptions to discharge as set forth in § 523 are liberally construed in favor of the Debt- or and strictly construed against the creditor to carry out the “fresh start” policy of the Bankruptcy Code. In re Linn, 38 B.R. 762 (9th Cir. BAP 1984). As a result, the creditor seeking the determination of non-dischargeability bears the burden of proving by clear and convincing evidence each element set forth in § 523(a)(2)(B). In re Besch, 42 B.R. 45 (Bkrtcy.Ill.1984) Specifically, the creditor must show that a statement in writing is materially false respecting the Debtor’s financial condition, that the creditor reasonably relied on the statement, and that the Debtor made the false statement with the intent to deceive. In re Duncan, 35 B.R. 323 (Bkrtcy.Ky.1983). While there is no evidence that the first financial statement was tainted by any falsity, there is no question that the July 1987 financial statement was false. That leaves" }, { "docid": "9967319", "title": "", "text": "and (iv) that the debtor caused to be made or published with intent to deceive; It is now well established that exceptions to discharge as set forth in § 523 are liberally construed in favor of the Debt- or and strictly construed against the creditor to carry out the “fresh start” policy of the Bankruptcy Code. In re Linn, 38 B.R. 762 (9th Cir. BAP 1984). As a result, the creditor seeking the determination of non-dischargeability bears the burden of proving by clear and convincing evidence each element set forth in § 523(a)(2)(B). In re Besch, 42 B.R. 45 (Bkrtcy.Ill.1984) Specifically, the creditor must show that a statement in writing is materially false respecting the Debtor’s financial condition, that the creditor reasonably relied on the statement, and that the Debtor made the false statement with the intent to deceive. In re Duncan, 35 B.R. 323 (Bkrtcy.Ky.1983). While there is no evidence that the first financial statement was tainted by any falsity, there is no question that the July 1987 financial statement was false. That leaves for consideration whether the falsity was material. As was noted in In re Denenberg, 37 B.R. 267 (Bkrtcy.D.Mass.1983), “a materially false statement is one which paints a substantially untruthful picture of a financial condition by misrepresenting information of the type which would normally affect the decision to grant credit.” Id at 271. Based on the evidence presented, the Court is satisfied that as the mortgage obligations, if listed, would have drastically affected ITT’s computation of the debt to net income ratio necessary to qualify for a loan, this omission was material. Further, there is no question that as ITT used the information provided on the financial statement to determine whether to make the loan to the Debtors, it reasonably relied on the financial statement. Finally, the Court is satisfied that the Debtors’ failure to disclose the mortgage obligations was done with the requisite intent to deceive. This is so as “intent to deceive” may be inferred when a Debtor knew or should have known the falsity of a statement made. In re Valley, 21 B.R." }, { "docid": "1824278", "title": "", "text": "DISCUSSION As is clear from the foregoing, the Plaintiff maintains that the Debtors’ indebtedness to it is nondischargeable because the debts were incurred as a result of its reliance upon a materially false financial statement pursuant to 11 U.S.C. § 523(a)(2)(B). That Code section provides that a debt is not discharged if it is (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (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 ... Any dischargeability matter must be approached with the acknowledgement that the purpose of the bankruptcy laws is to provide the debtor with a “fresh start” by granting comprehensive relief from the burden of his or her indebtedness. See, e.g., In re Gaebler, 83 B.R. 264, 267 (Bankr.E.D.Pa.1988); and In re Woerner, 66 B.R. 964, 971 (Bankr.E.D.Pa.1986), aff'd, C.A. No. 86-7324 (E.D.Pa. April 28, 1987). In light of this principle, any exceptions to discharge “ ‘must be construed strictly against the objector and liberally in favor of the debtor.’ ” Id. As in the case of § 523(a)(2)(A), see, e.g., In re Fitzgerald, 73 B.R. 923, 926 (Bankr.E.D.Pa.1987), all of the statutory prerequisites of § 523(a)(2)(B) must be proven by clear and convincing evidence by the plaintiff in a dischargeability case based on this Code section. See, e.g., In re Bogstad, 779 F.2d 370, 372 (7th Cir.1985); In re Bonnett, 73 B.R. 715, 717 (C.D.Ill.1987); In re O’Karma, 46 B.R. 422, 423 (M.D.Pa.1984); In re Figueredo, 84 B.R. 856, 857 (Bankr.S.D.Fla.1988); In re Lippert, 84 B.R. 612, 617 (Bankr.D.Minn.1988); In re Duncan, 81 B.R. 665, 667 (Bankr.M.D.Fla.1987); In re Bossard, 74 B.R. 730, 734 (Bankr.N.D.N.Y.1987); and In re Turner, 69 B.R. 995, 996 (Bankr.S.D.Ohio 1987). The Plaintiff here maintains that the Statement was materially false in that it 1. Omitted the First Peoples" }, { "docid": "12869671", "title": "", "text": "agree with INA that under an agency scenario, common law principles of agency law would probably dictate the imputation of an agent’s fraud to a principal under a § 523(a)(2)(B)(iv) analysis. If principles of imputability applied, Cohn could be held responsible for Scutto’s statements and intent to deceive. However, under the facts of this case, agency law is not directly applicable. In the case at hand, Cohn signed the application; Cohn made representations to INA; INA relied on Cohn’s representations. The third party — INA—never relied upon anything Cohn’s agent said on behalf of Cohn. Because INA relied only upon the principal’s representations, agency law is irrelevant to this case. What Cohn relied upon — the advice of Scutto — is relevant only to the question of his own state of mind. Accordingly, on remand the question remains whether Cohn, in light of the totality of the circumstances, intended to deceive, or was reckless in making the representations. Last, we find of interest discussion in certain bankruptcy courts within this circuit regarding a rebuttable presumption of intent to deceive that arises upon the making of a false financial statement, see, e.g., Horowitz Finance Corp. v. Hall (In re Hall), 109 B.R. 149, 155 (Bankr.W.D.Pa.1990); First Seneca Bank v. Galizia (In re Galizia), 108 B.R. 63, 67 (Bankr.W.D.Pa.1989); Signal Consumer Discount Co. v. Hott (In re Hott), 99 B.R. 664, 667 (Bankr.W.D.Pa.1989), and a shifting burden of production of evidence upon a creditor’s establishing a prima facie case, see, e.g., Beneficial Consumer Discount Co. v. Russell (In re Russell), 18 B.R. 325, 327 (Bankr.E.D.Pa.1982) (once creditor satisfies the first three elements of § 523(a)(2)(B), a prima facie case is established and the debtor then has the burden of going forward with evidence on the question of intent to deceive); Bucks County Teachers’ Federal Credit Union v. McVan (In re McVan), 21 B.R. 632, 634 (Bankr.E.D.Pa.1982); Wybro Federal Credit Union v. Mann (In re Mann), 22 B.R. 306, 308 (Bankr.E.D.Pa.1982). We understand that these bankrupt cy courts were motivated to formulate the presumption and shifting burdens of persuasion in order to assist" }, { "docid": "18517392", "title": "", "text": "debt— (2) for money, property, services, or an extension, renewal, or refinancing or credit, to the extent obtained by— (B) use of a statement in writing— (i) that is materially false; (ii) respecting the debtor’s ... financial condition; (in) 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. § 528(a)(2)(B). To prevail on a complaint under § 523(a)(2)(B), a creditor must prove: (1) that the Debtor made a statement in writing; (2) that the statement was materially false; (3) that the statement concerned the Debt- or’s or an insider’s financial condition; (4) that in making this misrepresentation, the Debtor had an intent to deceive the Creditor; and (5) that the Creditor actually and reasonably relied upon the misrepresentation. In re Bogstad, 779 F.2d 370, 372 (7th Cir.1985). The Rezins have not established any written statements made by Bruce Barr regarding his financial condition. The Sale Contract or the Construction Agreements do not qualify as written statements regarding a “Debtor’s or insider’s financial condition” because they did not deal with Bruce Barr’s financial condition. The record does not contain any other written statements that were authored or signed by Bruce Barr or which even remotely could be construed as dealing with his financial condition. Section 523(a)(6) Section 523(a)(6) excepts from discharge any debt incurred by “willful and malicious injury,” and provides in pertinent part: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C. § 523(a)(6). In order for a debt to be held nondischargeable under § 523(a)(6), plaintiffs must prove that injury resulted from an act that was both willful and malicious. Dornik v. Maurice (In re Maurice), 138 B.R. 890, 896 (Bankr.N.D.Ill.1992), aff'd 1992 WL 308535 (N.D.Ill. Oct. 19, 1992), aff'd, 21 F.3d 767 (7th Cir.1994) (quoting Kimzey, 761 F.2d at 424);" }, { "docid": "12869652", "title": "", "text": "S.Ct. 654, 659-60, 112 L.Ed.2d 755 (1991). Thus, pursuant to § 523(a)(2)(B), INA must prove that Cohn used a statement in writing: (1) that is materially false; (2) respecting his financial condition; (3) upon which INA reasonably relied; and (4) with the intent to deceive INA. A. The bankruptcy court held that “[i]t cannot be disputed that debtor’s application contains a materially false statement regarding debt- or’s financial condition.” Cohn, 131 B.R. at 21. The court noted Cohn’s admission that at the time he executed the application he did not have legal and equitable title to real estate valued at $110,000. Id. Citing Century Bank of Pinellas County v. Clark (In re Clark), 1 B.R. 614, 617 (Bankr.M.D.Fla.1979), the bankruptcy court held that Cohn’s financial statement was sufficiently overstated such that it was a materially false statement within the meaning of § 523(a)(2)(B)®. Id. While Cohn does not deny that his statement was false, he asserts that the statement was not material. He cites Landmark Leasing Inc. v. Martz (In re Martz), 88 B.R. 663, 671 (Bankr.E.D.Pa.1988) and Afsharnia v. Roland (In re Roland), 65 B.R. 1003, 1006 (Bankr.D.Conn.1986) for the proposition that the “materially false” component of § 523(a)(2)(B)® requires a showing both that the statement was in fact false, and that the falsehood was material to the creditor’s decision to enter into the transaction. We note, however, that In re Bogstad, 779 F.2d 370 (7th Cir.1985), the case upon which both the Martz and Roland courts rely, in actuality has a narrower holding than the proposition asserted by Cohn. The Court of Appeals for the Seventh Circuit wrote: Material falsity has been defined as “an important or substantial untruth.” A recurring guidepost used by courts has been to examine whether the lender would have made the loan had he known of the debt- or’s true financial condition. Bogstad, 779 F.2d at 375 (citations omitted) (emphasis added). Thus, it would appear that the effect of the falsity on the creditor’s decision to enter into the transaction should be used only as one indicia of the materiality of the falsity;" }, { "docid": "8852109", "title": "", "text": "of dischargeability is dependent upon 11 U.S.C. § 523(a)(2)(B), which provides: A discharge under section 727(a), ... of this title does not discharge an individual debtor from any debt — for money, property, services, or an extension, renewal of refinancing of credit, to the extent obtained by — use of a statement in writing — that is materially false; respecting a debtor’s or an insider’s financial condition; on which the creditor to whom the debtor is liable for such money, property, services or credit reasonably relied; and that the debtor made or published with intent to deceive; ... Debtor’s written statements submitted in support of her loan request — written applications, financial statements, the check and the affidavit — were materially and substantially inaccurate. In re Bundy, 95 B.R. 1004, 1008 (Bankr.W.D.Mo.1989) (B.J. Koger). Omissions from the written statements constitute material falsity. In re Kroh, 89 B.R. 808 (Bankr.W.D.Mo.1988) (B.J. See). The creditors reasonably relied upon the written statements, as they would not have made the loans without the information and would not have made the loans had the true facts been known. Bundy, 95 B.R. at 1008. Intent to deceive may be inferred from all of the circumstances surrounding the transactions. In re Kroh, 88 B.R. 972 (Bankr.W.D.Mo.1988) (B.J. See). As I previously stated, the entire circumstances show that debtor had no intention of repaying this debt, and as such, there is requisite intent to deceive AYCO and ITT. Furthermore, the evidence demonstrates that she and Mr. Bartlett intended to deceive both companies about her income. Just because she helps out in his business, and he gives her $500 to pay household expenses — when the funds are available— does not mean that she has income of $500 per week. Her tax returns as well as the Bankruptcy Court filings show no income. Based on all these facts, an intent to deceive has been proven. With respect to the credit card debts owing to FCC National Bank, United Missouri Bank, and Mercantile Bank of Illinois, the determination of dischargeability is dependent upon 11 U.S.C. § 523(a)(2)(A), which provides: A" }, { "docid": "8311425", "title": "", "text": "states in pertinent part: (a) A discharge under section 727 ... does not discharge an individual debtor from any debt — ... (2)for money ... to the extent obtained by—... (B) use of a statement in writing— (i) that is materially false; (ii) respecting the debtor’s ... financial condition; (iii) on which the creditor to whom the debtor is liable for such money ... reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive ... The elements to be proved by Plaintiff are as follows: (1) the debtor obtained money; (2) by a financial statement; (3) in writing; (4) concerning the debtor’s financial condition; (5) that the financial statement was materially false; (6) that the debtor cause it to be made with the intent to deceive the creditor; (7) that the creditor relied on it; (8) that such reliance was reasonable; and (9) that the loss was the proximate result of the making of the financial statement. In re Pascucci, 90 B.R. 438 (Bankr.C.D.Calif.1988). Each element must be proved by clear and convincing evidence. Haxby v. National Boulevard Bank of Chicago, 90 B.R. 340 (N.D.Ill.1988); In re Figge, 94 B.R. 654 (Bankr.C.D.Calif.1988); In re Liptak, 89 B.R. 3 (Bankr.W.D.Pa.1988). The parties agree that Defendant did in fact obtain money as a result of his submission to Plaintiff of a written statement of his financial condition. It does not appear that Defendant questions Plaintiff’s reliance on the statement and it is clear that Plaintiff’s loss was proximately caused by Debtor’s financial statement. It is not clear if Defendant concedes that the omission of the student loan caused the statement to be materially false; however, based upon his testimony regarding alleged instructions to omit it, we presume that issue is contested. The major contended issue is whether Defendant intentionally deceived Plaintiff as to his true financial status in order to obtain the funds. Material falsity has been defined as “an important or substantial untruth”. In re Jones, 88 B.R. 899, 903 (Bankr.E.D.Wis.1988), quoting Matter of Bogstad, 779 F.2d 370 (7th Cir.1985). It includes any omission," }, { "docid": "12869651", "title": "", "text": "Title 11, section 523(a)(2) of the United States Code provides for exceptions to discharge as follows: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual 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. § 523(a)(2) (1988). The burden of proving that a debt is nondischargeable under § 523(a) is upon the creditor, who must establish entitlement to an exception by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 287-88, 111 S.Ct. 654, 659-60, 112 L.Ed.2d 755 (1991). Thus, pursuant to § 523(a)(2)(B), INA must prove that Cohn used a statement in writing: (1) that is materially false; (2) respecting his financial condition; (3) upon which INA reasonably relied; and (4) with the intent to deceive INA. A. The bankruptcy court held that “[i]t cannot be disputed that debtor’s application contains a materially false statement regarding debt- or’s financial condition.” Cohn, 131 B.R. at 21. The court noted Cohn’s admission that at the time he executed the application he did not have legal and equitable title to real estate valued at $110,000. Id. Citing Century Bank of Pinellas County v. Clark (In re Clark), 1 B.R. 614, 617 (Bankr.M.D.Fla.1979), the bankruptcy court held that Cohn’s financial statement was sufficiently overstated such that it was a materially false statement within the meaning of § 523(a)(2)(B)®. Id. While Cohn does not deny that his statement was false, he asserts that the statement was not material. He cites Landmark Leasing Inc. v. Martz (In re Martz), 88 B.R. 663," }, { "docid": "12869672", "title": "", "text": "of intent to deceive that arises upon the making of a false financial statement, see, e.g., Horowitz Finance Corp. v. Hall (In re Hall), 109 B.R. 149, 155 (Bankr.W.D.Pa.1990); First Seneca Bank v. Galizia (In re Galizia), 108 B.R. 63, 67 (Bankr.W.D.Pa.1989); Signal Consumer Discount Co. v. Hott (In re Hott), 99 B.R. 664, 667 (Bankr.W.D.Pa.1989), and a shifting burden of production of evidence upon a creditor’s establishing a prima facie case, see, e.g., Beneficial Consumer Discount Co. v. Russell (In re Russell), 18 B.R. 325, 327 (Bankr.E.D.Pa.1982) (once creditor satisfies the first three elements of § 523(a)(2)(B), a prima facie case is established and the debtor then has the burden of going forward with evidence on the question of intent to deceive); Bucks County Teachers’ Federal Credit Union v. McVan (In re McVan), 21 B.R. 632, 634 (Bankr.E.D.Pa.1982); Wybro Federal Credit Union v. Mann (In re Mann), 22 B.R. 306, 308 (Bankr.E.D.Pa.1982). We understand that these bankrupt cy courts were motivated to formulate the presumption and shifting burdens of persuasion in order to assist creditors in proving the elusive element of a debtor’s intent. As a preliminary matter, we are not aware of any courts outside of the Eastern and Western Districts of Pennsylvania that have utilized a shifting burdens approach. Further, we conclude that it is not necessary to utilize a presumption of intent or a shifting burden of production in processing objections to the discharge of a debt. We observe that in other areas of commercial litigation in which fraud is alleged, courts have not utilized a shifting burden of production. A shifting burden is no more necessary in the realm of discharge in bankruptcy than in any other area of commercial litigation in which fraud is alleged. It is sufficient that fraud must be pled and proven with particularity. See Fed.R.Civ.P. 9(b). Thus, the creditor at all times retains both the burden of proof and the burden of production regarding all four elements of § 523(a)(2)(B). We believe that the standards adopted today (i.e., that “intent to deceive” includes both recklessness and subjective intent and that" }, { "docid": "1799960", "title": "", "text": "totalling $1,400,-000.00 by Naples to Skyline Development Group, another Hall family business. The loans in question occurred between August 1, 1985 and December 11, 1986, which was prior to the statement of financial affairs as of January 1, 1987 submitted by Debtor in support of the $600,000.00 loan application. ANALYSIS Section 523(a) of the Bankruptcy Code provides that a discharge under Section 727 does not apply to certain debts. Section 523(a)(2)(B), for instance, provides in relevant part that: § 523. Exceptions to discharge. (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2)for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (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 on published with intent to deceive; ... Since the dischargeability of a debt can significantly affect a debtor’s ability to make a fresh start, the exceptions to dischargeability set forth in 11 U.S.C. § 523(a)(2)(B) are to be strictly construed against the creditor and in favor of the debtor. In re Ward, 88 B.R. 727 (Bankr.W.D.Pa.1988). The creditor must prove each and every element of a given exception to discharge by clear and convincing evidence. In re Ward, supra at 729. Horowitz must prove each of the following in order to establish that the above debts to it are nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(B): (1) that Debtor provided Horowitz with a written statement of her financial condition; (2) that the statement was materially false; (3) that Horowitz reasonably relied on it; and (4) that Debtor caused it to be made or published it with intent to deceive Horowitz. See In re Liptak, 89 B.R. 3 (Bankr.W.D.Pa.1988). In addition to its being reasonable, the reliance by the creditor must be detrimental in order for the debt" }, { "docid": "4660251", "title": "", "text": "advances and goods they knew they did not have either the present ability or a realistic prospect to repay this debt and they incurred the debt by false pretenses, false representations, or actual fraud. See, In re Hall, 101 B.R. 781 (Bankr.M.D.Fla.1989). False Statement in Writing 11 U.S.C. § 523(a)(2)(B) provides in relevant part: (a) A discharge under ... this title does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing or credit, to the extent obtained by— (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.... To prevail on a claim under this section, a creditor must prove the following elements: (i) The use of a materially false statement in writing regarding the debtor or an insider’s financial condition; (ii) The debtor caused this statement to be published to the plaintiff with an intent to deceive; (iii) The plaintiff relied on the false statement and sustained a loss as a result thereof. See, In re Seaborne, 106 B.R. 711 (Bankr. M.D.Fla.1989). Again, it is the creditor seeking a judgment of nondischargeability that bears the burden of proof through clear and convincing evidence. In re Brink, supra; In re Finley, 89 B.R. 938, 939 (Bankr.M.D.Fla. 1988). Defendants caused a written statement regarding their financial condition to be published by providing plaintiff’s telephone solicitor the financial information contained on the written application for a credit card. A written statement does not have to be physically prepared by a defendant. The requirements of § 523(a)(2)(B) are met if the existence of a written statement was caused to be prepared by the defendant. In re Roy, 40 B.R. 452, 454 (Bankr.S.D.Fla.1984). The financial information set forth on the credit card application grossly misstated the income of Joe Alan Graham. Defendants obtained a deed to their residence" }, { "docid": "1935869", "title": "", "text": "encumbered boat as collateral would harm North Shore’s interest. Section 523(a)(2)(B). The plaintiff also alleged that when its loan to David Jones was renewed, the defendant debtors fraudulently represented and warranted in writing that they were the owners of the collateral free of all liens and encumbrances except those of the plaintiffs. Furthermore, the financial statement submitted did not disclose all of the debtors’ debts. Since this is a statement respecting the debtors’ financial condition, it properly falls under § 523(a)(2)(B). In order to have a debt declared nondischargeable under § 523(a)(2)(B), a creditor must prove all of the following elements by a showing of clear and convincing evidence: 1. the existence of a statement in writing, 2. that is materially false, 3. respecting the debtors’ financial condition, 4. upon which the creditor reasonably relied, and 5. that the debtor made with intent to deceive. 11 U.S.C. § 523(a)(2)(B); In re Blatz, 37 B.R. 401, 403 (Bankr.E.D.Wis.1984). In addition, the creditor must show that it sustained the alleged loss and damage as a proximate result 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" } ]

[ { "docid": "18516690", "title": "", "text": "Cir.1993). The bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. Sousa, 32 F.3d at 1372. The court’s decision about the proper amount of legal fees to be awarded is reviewed for an abuse of discretion. In re Film Ventures Int’l, Inc., 75 B.R. 250, 253 (9th Cir. BAP 1987). II. DISCLOSURE OF THE SOURCE OF THE RETAINER The bankruptcy court must ensure that attorneys who represent the debtor do so in the best interests of the bankruptcy estate. See In re Lincoln N. Assocs., Ltd., 155 B.R. 804, 808 (Bankr.E.D.Mass.1993); In re EWC, Inc., 138 B.R. 276, 280-81 (Bankr.W.D.Okla.1992). The court must ensure, for example, that the attorneys do not have interests adverse to those of the estate, 11 U.S.C. § 327, that the attorneys only charge for services that benefit the estate, Pfeiffer v. Couch (In re Xebec), 147 B.R. 518, 523 (9th Cir. BAP 1992), and that they charge only “reasonable” fees, 11 U.S.C. § 329(b). To facilitate the court’s policing responsibilities, the Bankruptcy Code and Federal Rules of Bankruptcy Procedure impose several disclosure requirements on attorneys who seek to represent a debtor and who seek to recover fees. See 11 U.S.C. § 329; Fed.R.Bankr.P. 2014 & 2016. The disclosure rules impose upon attorneys an independent responsibility. Thus, failure to comply with the disclosure rules is a sanetionable violation, even if proper disclosure would have shown that the attorney had not actually violated any Bankruptcy Code provision or any Bankruptcy Rule. In re Film Ventures Int’l, 75 B.R. at 252. When a debtor’s attorney seeks compensation for fees, Federal Rule of Bankruptcy Procedure 2016(a) requires the attorney to file an application that includes “a statement as to what payments have theretofore been made or promised ..., [and] the source of the compensation so paid or promised.” Regardless of whether fees are actually sought, 11 U.S.C. § 329 requires the attorney to “file with the court a statement of the compensation paid or agreed to be paid, ... and the source of such compensation.” Neben & Starrett’s disclosures" } ]

[ { "docid": "15250353", "title": "", "text": "330 review, i.e., the Wildman three-part test discussed earlier. Uziel erroneously relies on 11 U.S.C.A. § 328(a) (West Supp.1990) to support his argument that the bankruptcy court erred in refiguring his fees. Section 328(a) provides: [A] committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section ... 1103 of this title ... on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. Because there is no evidence that the court approved Uziel’s fee arrangement, § 328 is not applicable. That section only applies where the court has validated a previous fee arrangement and later seeks to change it. In re Benassi, 72 B.R. 44, 47 (D.Minn. 1987). Here, where there is no such prior approval, the court may review Uziel’s fee application under § 330. See In re C & P Auto Transport, Inc., 94 B.R. 682, 685 & 686 n. 5 (E.D.Cal.1988). Moreover, even if the bankruptcy court approved an hourly rate, if it did not fix the number of allowed hours, that matter still would be subject to the court’s review. In re Confections by Sandra, Inc., 83 B.R. 729, 733 (9th Cir. BAP 1987). Finally, Uziel offers no support for the assertion that the court was bound by its treatment of his previous applications. Notwithstanding the alleged agreement and the court’s treatment of Uziel’s previous applications, Uziel argues that courts must always start with the “lodestar,” multiplying a reasonable number of hours by a reasonable hourly rate, citing In re Manoa Finance Co., 853 F.2d 687 (9th Cir.1988). Uziel also argues that fee shifting cases, in which courts start with the “lodestar”, are binding in" }, { "docid": "22473918", "title": "", "text": "would be paid prior to receiving court approval of the fees sought. The bankruptcy court rejected the Trustee’s argument and, on November 24, 1986, entered an order approving the Procedure. In January and March of 1987, the bankruptcy court approved virtually identical fee payment and application procedures for the Debtors’ accountants, Peat, Marwick, Mitchell & Co., and for counsel for the Knudsen creditors’ committee, Shea & Gould. The Trustee timely appealed the three orders authorizing the use of the above procedure. Because they all address the same issue, the appeals have been consolidated. QUESTION PRESENTED Whether the bankruptcy court has authority to approve a fee payment and application procedure that permits periodic post-petition payments to professionals without prior court approval of the payments. STANDARD OF REVIEW Generally, a bankruptcy court’s award of attorneys fees or similar compensation is reviewed on appeal for an abuse of discretion. See In re Nucorp Energy, Inc., 764 F.2d 655, 657 (9th Cir.1985). The case at bar, however, presents a question of statutory construction which we review de novo. See Trustees of the Amalgamated Ins. Fund v. Geltman Indus., Inc., 784 F.2d 926, 929 (9th Cir.1986). DISCUSSION Under Bankruptcy Code section 328(a), 11 U.S.C. § 328(a), bankruptcy courts may authorize the employment of professionals “on any reasonable terms and conditions of employment, including a retainer, on an hourly basis, or on a contingent fee basis.” Bankruptcy Code section 331, which incorporates by reference section 330, regulates the allowance of fees for, inter alia, professionals employed by the debtor. 11 U.S.C. §§ 331, 330. Under these provisions, the court may allow and disburse fees to professionals in accordance with specific criteria and “after notice and a hearing”. The instant case requires us to reconcile section 328’s broad language which includes the term “retainer” with section 331’s specific requirements including notice and hearing. At the outset, we note that the issue presented here is one of first impression. Judge Matheson of the U.S. Bankruptcy Court in Colorado has, in at least two cases, used a fee payment procedure similar to the one here. See In re Frontier" }, { "docid": "15903559", "title": "", "text": "that FE had failed to establish that its work on the sale motion was necessary or that it had conveyed a benefit to the estate. Instead, the court noted that the sale motion appeared to have been an attempt to derail the Unsecured Creditors’ Committee’s proposed reorganization plan, a plan that would have removed Forshpan as B.U.M.’s principal. The bankruptcy court also reiterated the reasons that it had rejected the motion-it had been brought late and was unsupported by evidence that it was a feasible transaction, much less a viable alternative to the Committee’s plan. FE appealed to the district court, which affirmed the bankruptcy court’s denial of the contingency fees. FE filed a timely notice of appeal. II. Standard of Review This court independently reviews the bankruptcy court’s decision and need not give deference to the district court’s determinations. See Worthington v. General Motors Corp. (In re Claremont Acqui sition Corp.), 113 F.3d 1029, 1031 (9th Cir.1997); Federal Deposit Insurance Corp. v. Daily (In re Daily), 47 F.3d 365, 367 (9th Cir.1995). The bankruptcy court’s interpretation of the applicable law is reviewed de novo, and its findings of fact are reviewed for clear error. See In re Claremont Acquisition, 113 F.3d at 1031. A bankruptcy court’s decision on the amount of fees to be awarded is reviewed for an abuse of discretion. See Neben & Starrett, Inc. v. Chartwell Financial Corp. (In re Park-Helena Corp.), 63 F.3d 877, 880 (9th Cir.1995). III. Analysis The outcome of this case turns upon the relationship between two different Bankruptcy Code provisions, 11 U.S.C. §§ 328 and 330. A. The Statutes In pertinent part, 11 U.S.C. § 328, reads: Limitation on compensation of professional persons (a) The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the" }, { "docid": "18849641", "title": "", "text": "first fee application, interim compensation in the amount of $148,373.75 and reimbursement of expenses in the amount of $6,909.00 was sought for the period June 21, 1988 through July 30, 1988. No objections were filed to that application. All interested parties who appeared at that hearing strongly supported full allowance of the request in marked contrast to the objections lodged against the instant application. Pursuant to the first fee application, the Court awarded compensation in the amount of $144,573.75 and authorized reimbursement of expenses in the amount of $6,427.27. V. DISCUSSION A. COMPENSATION STANDARDS Pursuant to Section 330 of the Code, professionals applying for fees must demonstrate that their services were actual, necessary and reasonable. The legislative history of section 330 expressly notes the Court’s correlative duty to closely examine the reasonableness and necessity of the fees incurred. Federal Rule of Bankruptcy Procedure 2016 in turn requires that, “[a]n entity seeking interim or final compensation for services, or reimbursement of necessary expenses, from the estate shall file with the court an application setting forth a detailed statement of (1) the services rendered, time expended and expenses incurred, and (2) the amounts requested.” Fed.R.Bankr.P. 2016(a). Unfortunately, the only statutory cap setting maximum fees regards bankruptcy trustee fees as provided in section 326. Section 328, however, provides a potential check on the compensation of professionals. Section 328(a) states: The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. (Emphasis added). 11 U.S.C. § 328(a). Even" }, { "docid": "23678661", "title": "", "text": "nature of the appeal, there are no opposing Briefs and the facts are substantiated by the record. ISSUE Whether the trial court abused its discretion by allowing only $8,694.88 in attorney’s fees and costs to the debtor’s attorney. DISCUSSION The appellant contends, that because the Bankruptcy Judge had specifically authorized the employment and terms and conditions of compensation, it was an abuse of discretion to award fees differing from the fees so fixed without a specific finding of “unanticipated developments” as set forth in Section 328(a) of the Bankruptcy Code. Section 328(a) provides as follows: The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments unanticipated at the time of the fixing of such terms and conditions. 11 U.S.C. § 328(a) (1982). This section “anticipates that the terms of the fee arrangement will be established prior to the rendition of professional services.” In re Benassi, 72 B.R. 44, 47 (D.Minn.1987) (emphasis added). The only limitation is the language which permits the court to award fees at variance with the terms of its prior order when they “prove to have been improvident in light of developments unanticipated” at the time the approval was given. Id. In the instant case, the trial court did not make any specific finding that the originally approved fee arrangement was “improvident in light of developments unanticipated.” Further, it does not appear from the record that any such unanticipated developments existed or were known. At the time the fee arrangement was approved by the Bankruptcy Judge, the estate had virtually no assets other than the claim" }, { "docid": "15903560", "title": "", "text": "court’s interpretation of the applicable law is reviewed de novo, and its findings of fact are reviewed for clear error. See In re Claremont Acquisition, 113 F.3d at 1031. A bankruptcy court’s decision on the amount of fees to be awarded is reviewed for an abuse of discretion. See Neben & Starrett, Inc. v. Chartwell Financial Corp. (In re Park-Helena Corp.), 63 F.3d 877, 880 (9th Cir.1995). III. Analysis The outcome of this case turns upon the relationship between two different Bankruptcy Code provisions, 11 U.S.C. §§ 328 and 330. A. The Statutes In pertinent part, 11 U.S.C. § 328, reads: Limitation on compensation of professional persons (a) The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. 11 U.S.C. § 330 provides: Compensation of officers (a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. (2) The court may, on its own motion or on the motion of the United States Trustee, the United States Trustee for the District or Region, the trustee for the estate, or any other party in interest, award compensation that is less" }, { "docid": "5521903", "title": "", "text": "extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a) (emphasis added). Section 331 states: A trustee, an examiner, a debtor’s attorney, or any professional person employed under section 327 or 1103 of this title may apply to the court not more than once every 120 days after an order for relief in a case under this title, or more often if the court permits, for such compensation for services rendered before the date of such an application or reimbursement for expenses incurred before such date as is provided under section 330 of this title. After notice and a hearing, the court may allow and disburse to such applicant such compensation or reimbursement. 11 U.S.C. § 331 (emphasis added). Finally, section 328(a) states in part: The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. As these Code provisions indicate, generally, professionals whose services are retained pursuant to § 327 must file an application for compensation, which is subject to a noticed hearing, prior to allowance and payment of fees. See 11 U.S.C. §§ 330 and 331; In re Knudsen Corp., 84 B.R. 668, 672 (9th Cir. BAP 1988). However, the debtor’s counsel argues, and several courts have held that fee payments and application procedures whereby professionals may be paid each month without prior court approval of billing statements are permissible pursuant to § 328 of the Code which authorizes the employment of professionals on any reasonable terms and conditions, including retainers. See e.g. In re Knudsen Corp., 84 B.R. 668 (9th Cir. BAP 1988). In this case, the bankruptcy court found that the procedure for payment at issue is similar" }, { "docid": "17549427", "title": "", "text": "of the members of such committee are present, and with the court’s approval, such committee may select and authorize the employment by such committee of one or more attorneys, accountants, or other agents, to represent or perform services for such committee. 11 U.S.C. § 1103(a). .The parties agree, per the Stipulated Employment Order, that § 330 governs in determining reasonable fees for Lurie. See Aplt. App. at 149 (\"The terms of the retainer agreement which are contrary to the provisions of 11 U.S.C. § 330 are void.”). Professional fees may also be awarded pursuant to 11 U.S.C. § 328(a): The trustee, or a committee appointed under section 1102 of this title, with the court's approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, on a fixed or percentage fee basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. 11 U.S.C. § 328(a). However, § 328 governs when there is pri- or court approval given to a certain compensation, and the court modifies the agreed upon compensation only for unforeseen developments. See In re Pilgrim’s Pride Corp., 690 F.3d 650, 655 n. 3 (5th Cir.2012) (\"If prior approval is given to a certain compensation, § 328 controls and the court starts with that approved compensation, modifying it only for developments unforeseen when originally approved.”) (quotations omitted); In re Federal Mogul-Global Inc., 348 F.3d 390, 396-97 (3d Cir.2003) (explaining that § 330 authorizes a bankruptcy court to award a professional reasonable compensation for actual necessary services rendered, but that when a bankruptcy court has fixed the terms and conditions of an employment application, the court pursuant to" }, { "docid": "186191", "title": "", "text": "represent an interest adverse to the estate, and that are disinterested per sons, to represent or assist the trustee in carrying out the trustee’s duties under this title. 11 U.S.C. § 327(a). . Section 328(a) provides: The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. 11 U.S.C. § 328(a). . \"Section 224 of the Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, rewrote section 330(a). In doing so, the 1994 Act added two subparagraphs numbered 330(a)(3)(A). It appears that the first reference to paragraph 330(a)(3)(A) is extraneous.” Alan N. Resnick, et al., 2004 Collier Pamphlet Edition, Bankruptcy Code § 330, n. 1 (Matthew Bender & Co.2003). Accordingly, the reference to subparagraph (A) will be ignored. . The Sixth Circuit Court of Appeals has shown some disfavor for these qualitative factors in the past. See Northcross v. Bd. of Educ. of Memphis City Sch., 611 F.2d 624, 642-43 (6th Cir.1979). However, more recently, in Boddy, the court stated: The bankruptcy court also may exercise its discretion to consider other factors such as the novelty and difficulty of the issues, the special skills of counsel, the results obtained, and whether the fee awarded is commensurate with fees for similar professional services in non-bankruptcy cases in the local area. In many cases, these factors will be duplicative if the court first determines the lodestar amount because the lodestar presumably subsumes all of these factors in its analysis of the reasonable hourly rate and the reasonable" }, { "docid": "18849642", "title": "", "text": "detailed statement of (1) the services rendered, time expended and expenses incurred, and (2) the amounts requested.” Fed.R.Bankr.P. 2016(a). Unfortunately, the only statutory cap setting maximum fees regards bankruptcy trustee fees as provided in section 326. Section 328, however, provides a potential check on the compensation of professionals. Section 328(a) states: The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. (Emphasis added). 11 U.S.C. § 328(a). Even though private compensation agreements are permissible under the Code, the Court retains the responsibility of ensuring that the compensation awarded to professional persons falls within the parameters prescribed by section 330. See In re Churchfield Management & Invest. Corp., 98 B.R. 893 (Bankr.N.D.Ill.1989). The burden of proof to show entitlement to the fees requested is on the applicant. In re Pettibone Corp., 74 B.R. 293, 299 (Bankr.N.D.Ill.1987); In re Lindberg Products, Inc., 50 B.R. 220, 221 (Bankr.N.D.Ill.1985). Moreover, fee applications must stand or fall on their own merits. See In re Wildman, 72 B.R. 700 (Bankr.N.D.Ill.1987). Even if no objections are raised to a fee application, the Court is not bound to award the fees sought, and in fact has a duty to independently examine the reasonableness of the fees. In re Chicago Lutheran Hospital Association, 89 B.R. 719, 734-735 (Bankr.N.D.Ill.1988); Pettibone, 74 B.R. at 299-300; In re NRG Resources, Inc., 64 B.R. 643, 650 (W.D.La.1986). Several courts have denied or drastically reduced compensation in unsuccessful Chapter 11 cases. See In re King, 96 B.R." }, { "docid": "308975", "title": "", "text": "that the Court has jurisdiction over and considerable discretion in the awarding of fees. 11 U.S.C. §§ 329, 330, 331; Stroock & Stroock & Lavan v. Hillsborough Holdings Corp. (In re Hillsborough Holdings Corp.), 127 F.3d 1398, 1404 (11th Cir.1997); Grant v. George Schumann Tire & Battery Co., 908 F.2d 874, 878 (11th Cir.1990). Relying on the Objection to Final Report and Amendment to Application, Special Counsel seeks approval of the entire contingent fee in the amount of $12,545.33 plus reimbursement of expenses in the amount of $1,069.16. In the alternative, should Special Counsel share a pro rata distribution with the chapter 7 administrative claimants, Special Counsel requests the allowance of a chapter 7 priority expense in the amount of $15,794.49, plus reimbursement of expenses in the amount of $1,069.16, to receive payment in the amount of $13,614.49. Section 330 provides for the review of fees, after services are provided, under a reasonableness standard. Section 330 is subject to section 328. 11 U.S.C. § 330; In re Westbrooks, 202 B.R. 520, 522 (Bankr.N.D.Ala.1996) (“Section 330 provides the framework for review while Section 328 provides the standard of review”). Section 328 permits the Trustee to employ professionals pursuant to contingency fee agreements: The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. 11 U.S.C. § 328(a). Thus, under section 328, a professional may obtain court approval of the fee arrangement prior to performing the contemplated services, and the court may allow different compensation after" }, { "docid": "4344972", "title": "", "text": "negotiated with the Committee for several weeks over the terms of their compensation for their work as financial advisors. After listening to the testimony presented at the November 19, 2007 hearing, it is clear that these terms were not the result of “bad drafting” or “mistake.” On the contrary, the parties appeared to have created a practical solu tion for the time: set the amount of monthly compensation now and address the issue of a success, completion or other “back-end” fee at a later date. For reasons explained below, the Court finds neither FTI’s nor Lazard’s requests for a success fee were “preapproved” in their retention applications under Bankruptcy Code Section 328. Furthermore, their request for a success fee also fails to meet the standard outlined under Bankruptcy Code Section 330. I. Review of FTI’s and Lazard’s Request for Success Fees A. FTI FTI was retained pursuant to Bankruptcy Code Sections 328(a) and 1103(a), which cover the compensation of professionals retained by a committee. Section 328(a), in pertinent part, authorizes, with court approval, a “committee appointed under section 1102 of this title,” to “employ ... a professional person under section 327 or 1103 ... on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, on a fixed or percentage fee basis, or on a contingent fee basis.” 11 U.S.C. § 328 (2008). Section 1103(a) authorizes a creditor’s committee, with court approval, to select and employ agents to represent to perform services on behalf of the committee. 11 U.S.C. § 1103 (2008). FTI was to be compensated pursuant to the procedures set forth in Section 330 of the Bankruptcy Code, although its monthly compensation and expenses would not be challenged except under the standard of review established in Bankruptcy Code Section 328(a). FTI Retention Order at p. 2. Under Section 328(a), professionals such as FTI, may obtain pre-approval of their compensation arrangements from the Court. The “pre-approval” affords the professional assurances the amount of compensation approved will not be modified by the Court unless it is proven that the amount was “improvident in light developments" }, { "docid": "15903558", "title": "", "text": "brought at a very late date, resulting in a lack of notice to the creditors. Shortly after the Unsecured Creditors’ Committee’s reorganization plan was approved, the court held a hearing on FE’s application for $127,500 in monthly fees and $916,827 in contingency fees for its work in the B.U.M. bankruptcy case. The monthly fees were uncontested and approved by the court. However, the court rejected in its entirety the requested contingent fees. In so doing, the court conducted an 11 U.S.C. § 330 inquiry and determined that FE’s services had not benefitted the estate. With regard to the spinoff motion, the court noted that it appeared to have been designed primarily to benefit Forshpan at the expense of the creditors by taking everything of value out of the estate, and spinning it into a new entity controlled by him. The court found that to whatever extent FE had participated in the spinoff motion, FE had failed to show that its services were necessary or provided a benefit to the estate. The bankruptcy court also found that FE had failed to establish that its work on the sale motion was necessary or that it had conveyed a benefit to the estate. Instead, the court noted that the sale motion appeared to have been an attempt to derail the Unsecured Creditors’ Committee’s proposed reorganization plan, a plan that would have removed Forshpan as B.U.M.’s principal. The bankruptcy court also reiterated the reasons that it had rejected the motion-it had been brought late and was unsupported by evidence that it was a feasible transaction, much less a viable alternative to the Committee’s plan. FE appealed to the district court, which affirmed the bankruptcy court’s denial of the contingency fees. FE filed a timely notice of appeal. II. Standard of Review This court independently reviews the bankruptcy court’s decision and need not give deference to the district court’s determinations. See Worthington v. General Motors Corp. (In re Claremont Acqui sition Corp.), 113 F.3d 1029, 1031 (9th Cir.1997); Federal Deposit Insurance Corp. v. Daily (In re Daily), 47 F.3d 365, 367 (9th Cir.1995). The bankruptcy" }, { "docid": "9644736", "title": "", "text": "recovery. Objections were filed by the Barrons and a creditor who objected to payment of Daniels’s fee in priority to his claim. The bankruptcy court held a hearing, at the conclusion of which Daniels was asked to prepare an itemization of her charges. In November 1997, the bankruptcy court entered an order approving compensation for Daniels in the amount of $24,431.25 with an additional expense allowance of $2,500.00. In an accompanying opinion, the bankruptcy court concluded that its approval of the contingency fee had been improvident. Daniels appealed from this order to the district court. The district court affirmed, and Daniels filed this timely appeal. II. DISCUSSION A bankruptcy court’s determination of attorney’s fees is reviewed for abuse of discretion. See In re Fender, 12 F.3d 480, 487 (5th Cir.1994). “ ‘The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’ ” In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir.1999) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)) (alteration in original). “The bankruptcy court’s conclusions of law are reviewed de novo.” In re Texas Securities, Inc., 218 F.3d 443, 445 (5th Cir.2000). Section 328 of the Bankruptcy Code allows an attorney seeking to represent a bankruptcy estate to obtain prior court approval of her compensation plan. See 11 U.S.C. § 328(a) (“The trustee ... may employ or authorize the employment of a professional person under section 327 or 1103 of this title ... on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis.”); In re National Gypsum Co., 123 F.3d 861, 862 (5th Cir.1997) (“Under present § 328 the professional may avoid ... uncertainty by obtaining court approval of compensation agreed to with the trustee (or debtor or committee).”). Under § 328, once a compensation plan has received bankruptcy court approval, “the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove" }, { "docid": "9644737", "title": "", "text": "L.Ed.2d 392 (1996)) (alteration in original). “The bankruptcy court’s conclusions of law are reviewed de novo.” In re Texas Securities, Inc., 218 F.3d 443, 445 (5th Cir.2000). Section 328 of the Bankruptcy Code allows an attorney seeking to represent a bankruptcy estate to obtain prior court approval of her compensation plan. See 11 U.S.C. § 328(a) (“The trustee ... may employ or authorize the employment of a professional person under section 327 or 1103 of this title ... on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis.”); In re National Gypsum Co., 123 F.3d 861, 862 (5th Cir.1997) (“Under present § 328 the professional may avoid ... uncertainty by obtaining court approval of compensation agreed to with the trustee (or debtor or committee).”). Under § 328, once a compensation plan has received bankruptcy court approval, “the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions.” 11 U.S.C. § 328(a) (emphasis added). On appeal, Daniels argues that the bankruptcy court erred in modifying her pre-approved compensation plan absent a proper finding to support a conclusion that the contingency fee was “improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions.” Id. In its opinion on the matter, the bankruptcy court stated its understanding of the applicable law as follows: The law, applicable to the issue now before this court, has been clearly delineated by the Fifth Circuit Court of Appeals in Matter of Nat. Gypsum Co., 123 F.3d 861 (5th Cir.1997) decided October 8, 1997. Judge Reavley, writing for the court, stated the following: Prior to 1978 the most able professionals were often unwilling to work for bankruptcy estates where their compensation would be subject to the uncertainties of what a judge thought the work was" }, { "docid": "308976", "title": "", "text": "provides the framework for review while Section 328 provides the standard of review”). Section 328 permits the Trustee to employ professionals pursuant to contingency fee agreements: The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. 11 U.S.C. § 328(a). Thus, under section 328, a professional may obtain court approval of the fee arrangement prior to performing the contemplated services, and the court may allow different compensation after the representation has concluded only if the terms and conditions of the fee arrangement are improvident in light of unanticipated developments. 11 U.S.C. § 328(a). “Without such a finding, the prior fee agreement should not be disturbed. Section 330’s reasonableness standard does not supplant Section 328(a) and give the judge free reign to void a previously authorized employment agreement for a percentage fee.” Unsecured Creditors Comm. v. Webb & Daniel, 204 B.R. 830, 834 (M.D.Ga.1997) (Fitzpatrick, J.) (citing In re Westbrooks, 202 B.R. 520, 522 (Bankr.N.D.Ala.1996)). Special Counsel is employed by the Trustee to represent the estate in the Pearce Adversary Proceeding on a contingency fee basis. Neither the Application to Employ Special Counsel nor the Order granting said application specifies whether the fee provision is governed by section 328 or section 330. The Order approving the Application to Employ Special Counsel states “payment of compensation as set forth in Trustee’s Application is subject to allowance by the Court upon application, notice and hearing thereon.” Order approving Application to Employ Special Counsel, pp. 1. Thus," }, { "docid": "4727327", "title": "", "text": "abused its discretion or erroneously applied the law.” Boldt v. Crake (In re Riverside-Linden Investment Co.), 945 F.2d 320, 322 (9th Cir.1991). DISCUSSION The bankruptcy code contains specific provisions governing compensation of professionals. Section 330 provides: After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328 and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney 11 U.S.C. § 330. The provision at issue here, governing professionals employed by a trustee, states: The trustee ... with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. 11 U.S.C. § 328(a). Under section 328, where the bankruptcy court has previously approved the terms for compensation of a professional, when the professional ultimately applies for payment, the court cannot alter those terms unless it finds the original terms “to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions.” In re Confections by Sandra, Inc., 83 B.R. 729, 731 (Bankr. 9th Cir.1987); Seiler v. First Nat’l Bank of Babbitt (In re Benassi), 72 B.R. 44, 47-48 (Bankr.D.Minn.1987); see also Unsecured Creditors’ Comm. v. Puget Sound Plywood, Inc., 924 F.2d 955, 960 (9th Cir.1991) (citing Benassi; section 328 “applies where the court has validated a" }, { "docid": "22880544", "title": "", "text": "Cir.2000) (en banc). We apply the same standards of review that govern the district court’s review, Ting v. Chang (In re Chang), 163 F.3d 1138, 1140 (9th Cir.1998), giving no deference to the district court’s decision, Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir.2001). A bankruptcy court’s award of attorneys’ fees will not be disturbed on appeal absent an abuse of discretion or an erroneous application of law. In re Nucorp Energy, Inc., 764 F.2d 655, 657 (9th Cir.1985). A bankruptcy court’s denial of a recusal motion is also reviewed for abuse of discretion. United States v. $292,888.04 U.S. Currency, 54 F.3d 564, 566(9th Cir.1995). Questions of law are reviewed de novo. Nu-corp, 764 F.2d at 657. A. Attorneys’ Fees Smith opposes the fees awarded to E & H and JPL on both general and specific grounds. Smith’s general objections to the fee awards require an analysis of how the Bankruptcy Code provides compensation for attorneys working on a case. 1. Analytical Framework for Attorney Compensation Smith argues that 11 U.S.C. § 330(a) does not permit the award of fees to Chapter 7 or Chapter 11 debtor’s attorneys. Thus, he argues, the bankruptcy court was not authorized to award fees to either E & H or JPL who served in that capacity. Even if section 330(a) does allow such an award of fees, Smith argues that the fee awards cannot be supported under the benefit analysis approach employed in Pfeiffer v. Couch (In re Xebec), 147 B.R. 518 (9th Cir.BAP 1992). We address these contentions in turn. Section 330(a) of the Bankruptcy-Code governs the compensation of officers and professionals working on a bankruptcy case. Prior to 1994, section 330(a) provided that: After notice to any parties in interest and to the United States trustee and a hearing, ... the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title [which authorizes the trustee or creditors’ committee to employ attorneys and other professionals], or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services" }, { "docid": "16871318", "title": "", "text": "Services, Inc., 231 B.R. 351, 354 (Bankr.N.D.Okla.1999); In re International Horizons, Inc., 10 B.R. 895, 897-98 (Bankr.N.D.Ga.1981); Collier II 333.01. . The Court recognizes that it may not be cost-effective for the professionals to create new categories or realign the ones they are currently using. Those professionals who were instructed at the outset of the case to use the same categories to the extent possible but failed to do so will be expected to correct this deficiency at no cost to the estate. . Section 328(a) provides: The trustee, or a committee appointed under section 1102 of this title, with the court's approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. . There is no doubt that security retainers, the most common form of retainer employed in bankruptcy, remain property of the estate and cannot be drawn upon absent court authorization. See In re Tundra Corporation, 243 B.R. 575, 582-83 (Bankr.D.Mass.2000). . The Court need not address whether section 328(a) implicates a different standard for reviewing fee applications. The orders in this case have been clear; fees and expenses will be reviewed under the \"reasonable and necessary” standard of Section 330. . Section 506(c) provides: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. . The phrase \"after notice and a hearing” is subject to rules of construction contained in section 102 of the Bankruptcy Code. Section 102 provides: In" }, { "docid": "4727326", "title": "", "text": "recovering $37,871.30 for the estate on the claim. In August, 1986, the trustee filed an application seeking authorization to pay Giles $15,101.10 (40% of the amount recovered). At a first hearing on the application, the court directed the trustee to file additional supporting materials. At a subsequent hearing, the court again requested additional materials, in particular records of Giles’ billable hours. Giles ultimately submitted, rather than documentation regarding his hours, copies of documents related to the litigation of the claim. On February 11, 1988, the bankruptcy court entered an order approving payment to Giles of only $6,000. The court arrived at this amount by estimating that Giles had spent 60 hours on the case, and multiplying this by his $100 hourly rate. The trustee and Giles filed a motion for reconsideration; the court refused to hold a hearing on the motion, and denied it. Pitrat and Giles appealed to the district court, which affirmed. STANDARD OF REVIEW This court “will not disturb a bankruptcy court’s award of attorney’s fees absent a finding that the court abused its discretion or erroneously applied the law.” Boldt v. Crake (In re Riverside-Linden Investment Co.), 945 F.2d 320, 322 (9th Cir.1991). DISCUSSION The bankruptcy code contains specific provisions governing compensation of professionals. Section 330 provides: After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328 and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney 11 U.S.C. § 330. The provision at issue here, governing professionals employed by a trustee, states: The trustee ... with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis." } ]

[ { "docid": "22725345", "title": "", "text": "paid. 427 N. E. 2d 686, 690, n. 9 (1981). When a party is unreasonable in failing to protect its interest despite its ability to do so, due process does not require that the State save the party from its own lack of care. The balance required by Mullane clearly weighs in favor of finding that the Indiana statutes satisfied the requirements of due process. Accordingly, I dissent. In Mullane v. Central Hanover Bank & Trust Co., 339 U. S., at 314, we held that “[p]ersonal service has not in all circumstances been regarded as indispensable to the process due to residents, and it has more often been held unnecessary as to nonresidents.” The Court is simply incorrect in asserting that before Mullane, constructive notice was rarely deemed sufficient even as to in rem proceedings when residents of the State were involved, ante, at 796-797, n. 3. See, e. g., Longyear v. Toolan, 209 U.S. 414, 417-418 (1908). See also Note, The Constitutionality of Notice by Publication in Tax Sale Proceedings, 84 Yale L. J. 1505, 1507 (1975) (“This rule [permitting constructive notice] was . . . extended to all in rem proceedings, whether involving property owned by nonresidents or residents”). In Mullane, the Court contrasted those parties whose identity and whereabouts are known or “at hand” with those “whose interests or whereabouts could not with due diligence be ascertained.” 339 U. S., at 318, 317. This language must be read in the light of the facts of Mullane, in which the identity and location of certain beneficiaries were actually known. In addition, the Court in Mullane expressly rejected the view that a search “under ordinary standards of diligence” was required in that case. Id.. at 317. The Court suggests that the notice that it requires “may ultimately relieve the county of a more substantial administrative burden if the mortgagee arranges for payment of the delinquent taxes prior to the tax sale.” Ante, at 800, n. 6. The Court neglects the fact that the State is a better judge of how it wants to settle its tax debts than is" } ]

[ { "docid": "22452802", "title": "", "text": "pending and can choose for himself whether to appear or default, acquiesce or contest.’” Id. at 793 (quoting Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)); Glasgow v. United States Drug Enforcement Admin., 12 F.3d 795, 797 (8th Cir.1994) (“a claimant’s right to compel the agency to proceed by judicial forfeiture is an important statutory cheek on the government’s power to forfeit private property. Therefore, DEA’s compliance with statutory and constitutional notice requirements are essential components of the statutory regime.”). Madewell’s assertion appears to be that because he did not receive the proper written notice, even though he was a “party who appears to have an interest in the seized article,” he was never able to challenge the forfeiture in federal court, and thus was deprived of his property without due process of law. In Woodall, this court, examining the notice requirement for administrative forfeiture, said, [T]he Constitution requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane [v. Central Hanover Trust Co.], 339 U.S. [306,] 314, 70 S.Ct. [652,] 657, [94 L.Ed. 865 (1950)]. Whether notice was adequate is measured at the time the notice was sent. See Sarit v. Drug Enforcement Admin., 987 F.2d 10, 14 (1st Cir.), cert. denied, — U.S. -, 114 S.Ct. 241, 126 L.Ed.2d 195 (1993). When the government has actual knowledge of an interested party’s whereabouts at the time forfeiture is commenced, failure to direct the statutorily required personal notice to that address cannot be considered compliance with either the statute or minimum due process standards. See Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983).... Moreover, if the government is incarcerating or prosecuting the property owner when it elects to impose the additional burden of defending a forfeiture proceeding, fundamental fairness surely requires that either the defendant or his counsel receive actual notice of the agency’s intent to forfeit in time to decide whether to" }, { "docid": "18623416", "title": "", "text": "determine the dischargeability of the debts asserted by the Ziegler Claimants and to enjoin further proceedings in the state court. In the Final Summary Judgment, the Bankruptcy Court draws a distinction between trade creditors and individual tort claimants with regard to the sufficiency requirements for notice of the Bar Date. The Bankruptcy Court concluded that the notice in this case was insufficient for individual tort claimants. The Bankruptcy Court concluded that the one-time publication of the Bar Date notice in the six publications did not comport with due process. Based on relevant law and the facts of this case, this Court must respectfully disagree with the Bankruptcy Court’s conclusion regarding the sufficiency of notice of the Bar Date. Publication notice to unknown creditors, of course, does not violate due process. See e.g. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Matter of GAC Corp., 681 F.2d 1295 (11th Cir.1982). The type of notice required by the Bankruptcy Court’s Bar Date Order is exactly the kind of notice required by the Supreme Court: An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Mullane, 339 U.S. at 314, 70 S.Ct. at 657 (emphasis added). “For creditors who are not ‘reasonably ascertainable,’ publication notice can suffice.” Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 1347, 99 L.Ed.2d 565 (1988). The Supreme Court noted that it “has not hesitated to approve of resort to publication as a customary substitute” when more definite and certain notice is not reasonably possible or practicable. Mullane, 339 U.S. at 317, 70 S.Ct. at 658. . Thus it has been recognized that in the case of persons missing or unknown employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no con stitutional bar to a final decree foreclosing their rights." }, { "docid": "16229578", "title": "", "text": "(1988). Courtesy notice is just that, a “courtesy,” and Customs’ providing, or failure to provide, such a notice cannot create any legally cognizable right in the importer. See United States v. Reliable Chemical Co., 605 F.2d 1179, 1184 (CCPA 1979) (“Early notice of liquidation, forwarded as a ‘courtesy’ by the Government, is not and cannot be converted into the statutory notice at the election of an importer.”). B. The Due Process requirements of the Constitution were satisfied. In addition, Goldhofer argues that Customs’ failure to provide courtesy notice abridged the minimum due process requirements of the Constitution. Goldhofer con tends that, under those minimum requirements as articulated by the United States Supreme Court in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), Greene v. Lindsey, 456 U.S. 444, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982), Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), and Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), Customs is required to provide Gol-dhofer mail notice of liquidation. We disagree. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314, 70 S.Ct. at 657. “Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” Mennonite Board of Missions, 462 U.S. at 800, 103 S.Ct. at 2712 (emphasis supplied) (quoted in Tulsa Professional Collection Services, Inc., 108 S.Ct. at 1344). Clearly, Customs’ liquidation of, and assessment of duties on, Goldhofer’s goods are elements of a proceeding that may adversely affect Goldhofer’s property interest in its goods. Because, as importer of record, Goldhofer’s name" }, { "docid": "23317727", "title": "", "text": "framework, it is clear that when an incarcerated individual is the one being served, the serving party must attempt to effect service where the prisoner may be found — that is, in prison, not the pre-incarceration address. See Robinson v. Hanrahan, 409 U.S. 38, 40, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972) (per curiam). As the Magistrate Judge’s report recounted, this Court has ruled that notices in other forfeiture proceedings involving McGlory were inadequate when they did 'not attempt to reach him where he was incarcerated. See United States v. $184,505.01, 72 F.3d 1160 (3d Cir.1995). B. The government argues that precedent supports the conclusion that direct mail always satisfies due process requirements. Indeed, Supreme Court authority indicates that mailing to the location where the party can be found usually suffices for due process purposes. See Mullane, 339 U.S. at 318, 70 S.Ct. 652. In Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the Court opined, “[njotice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party ... if its name and address are reasonably ascertainable.” The government points to this language and to Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), for the proposition that notice by direct mail suffices to establish its successful discharge of its obligations to McGlory under the Due Process Clause. See id. at 490, 108 S.Ct. 1340 (“We have repeatedly recognized that mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice.”). While this argument carries strong surface appeal, it ignores the framework that Mullane decreed. Precedents endorsing, direct mail as a means of meeting constitutional notice requirements in certain contexts do not establish that such mailings result in per se satisfaction of notice requirements. Adequacy of notice is always evaluated by reference to the surrounding circumstances. See Mullane, 339 U.S. at 314, 70 S.Ct. 652. “The focus is on" }, { "docid": "20283362", "title": "", "text": "terms gives the government discretion to provide direct notice “as a substitute for published notice as to those persons so notified.” (emphasis added). The provision thus does not give the government a free hand in deciding whether to provide interested third parties with direct notice; it merely gives the government discretion to employ direct notice as a substitute for published notice. Practically speaking, that means parties who receive direct notice may not complain about defects in publication notice because the direct notice operates as a substitute— a safe harbor — for any publication notice otherwise required. See United States v. Puig, 419 F.3d 700, 703-04 (8th Cir.2005) (claimant who received actual notice may not complain about defect in published notice). Buttressing this conclusion is the constitutional-avoidance canon. If a statute is susceptible of “two plausible ... constructions,” one of which “would raise a multitude of constitutional problems, the other should prevail.” Clark v. Martinez, 543 U.S. 371, 380-81, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005). Imagine if the statute did not require direct notice to parties whom the government knows, or reasonably should know, have an interest in the forfeitable property. That would raise serious, likely devastating, constitutional objections. Due process requires the government to provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of’ a legal action that will determine their rights to property, and to “afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). When the government knows not whom the forfeiture affects, constructive notice by publication suffices. Id. at 317, 70 S.Ct. 652. But that is not true when the government knows or reasonably should know whom to notify. As to them, the government must attempt to provide direct notice of the proceeding. Id. at 318-19, 70 S.Ct. 652; see also Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 797-98, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983) (requiring government to provide direct notice to mortgage holder who has a publicly recorded interest" }, { "docid": "23317726", "title": "", "text": "McGlory, 202 F.3d 664 (3d Cir.2000) (en banc). We turn then to consideration of whether due process requires the government to go further and provide actual notice to an incarcerated defendant against whom it has initiated forfeiture proceedings. A. Our analysis perforce begins with Mullane v. Central Hanover Bank & Trust, Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), which established the framework for evaluating the adequacy of notice for due process purposes. As described by the Supreme Court, the judgment is a highly contextual one. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. at 314, 70 S.Ct. 652 (emphasis added). A person or entity seeking to give notice must employ means “such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Id. at 315, 70 S.Ct. 652. Under this framework, it is clear that when an incarcerated individual is the one being served, the serving party must attempt to effect service where the prisoner may be found — that is, in prison, not the pre-incarceration address. See Robinson v. Hanrahan, 409 U.S. 38, 40, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972) (per curiam). As the Magistrate Judge’s report recounted, this Court has ruled that notices in other forfeiture proceedings involving McGlory were inadequate when they did 'not attempt to reach him where he was incarcerated. See United States v. $184,505.01, 72 F.3d 1160 (3d Cir.1995). B. The government argues that precedent supports the conclusion that direct mail always satisfies due process requirements. Indeed, Supreme Court authority indicates that mailing to the location where the party can be found usually suffices for due process purposes. See Mullane, 339 U.S. at 318, 70 S.Ct. 652. In Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the Court opined, “[njotice by mail or other means as certain to ensure" }, { "docid": "18256002", "title": "", "text": "339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Gonzalez-Gonzalez, 257 F.3d at 36; United States v. One Urban Lot Located at 1 Street A-1, 885 F.2d 994, 998-99 (1st Cir.1989). This depends, in turn, on what information was reasonably available to the government when it commenced the forfeiture proceeding. While every case is different and context can be all-important,, this paradigm means, in general, that when the government knows or easily can ascertain the identity and whereabouts of a potential claimant, reasonableness requires the government, at a minimum, to take easily available steps in its attempt to notify the claimant. See Tulsa Prof'l Collection Servs., 485 U.S. at 491, 108 S.Ct. 1340; Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798 n. 4, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983); Lombard v. United States, 356 F.3d 151, 155 (1st Cir.2004). When, however, a potential claimant’s name or whereabouts are unknown and, practically speaking, unavailable, notice by publication can serve as a satisfactory surrogate. See Mullane, 339 U.S. at 317, 70 S.Ct. 652; Approximately 2,538.85 Shares of Stock, 988 F.2d at 1285; One Urban Lot, 885 F.2d at 998. The hard cases are those in which an interested party’s name or whereabouts were not actually known to the government but may or may not have been reasonably ascertainable. In those instances, an inquiring court must look to “the practicalities and peculiarities of the case.” Mullane, 339 U.S. at 314, 70 S.Ct. 652. The rule of thumb is that the government, in endeavoring to identify and locate po tential claimants, must exercise a degree of diligence commensurate with the particular circumstances — but it need not undertake endless or impractical investigations in the hope of finding a needle in a haystack. See id. at 317-18, 70 S.Ct. 652. In this case, it is undisputed that the government knew there was an additional investor (“possibly a doctor or dentist”) but did not know the investor’s name. There is no exact formula for determining the quantum of diligence due an unidentified yet potentially ascertainable claimant. Rather, the court must consider" }, { "docid": "23501204", "title": "", "text": "U.S. 306, 315, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). The Government’s efforts to notify Patel met this standard. In addition to publishing notice in the Fresno Business Journal, the Government sent copies of the complaint and summons by certified mail to Patel at the Fresno County Jail on March 8, 1993, and the documents were signed for by Doug King, a Fresno County Correctional Officer. According to a Watch Commander at the Jail, certified mail is handled according to the following procedure: Jail personnel sign for it, open it in the presence of the inmate and inspect it for contraband, and then distribute it directly to the inmate. Patel provides no evidence, beyond his own bald declaration, that he failed to be served in this manner. Moreover, the Government simultaneously sent the documents to Patel’s criminal defense attorney, Marc Stefano. It is difficult to imagine — and Patel appears unable to suggest — what additional steps one desirous of informing Patel of the forfeiture proceedings reasonably might have taken. In view of the Government’s efforts to notify Patel, we reject Patel’s claim that due process requires that he have received actual notice of the forfeiture proceedings. While this Court has not had occasion to decide whether putative claimants must receive actual notice of forfeiture proceedings, we have declined to hold that due process requires actual notice in other contexts. See, e.g., Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir.1994) (determining that “best notice practicable,” rather than actual notice, is proper standard for providing notice of proposed settlement to absent class members in Rule 23(b) class action). Moreover, other circuit courts have explicitly refused to require that actual notice of forfeiture proceedings be given to potential claimants. See United States v. 51 Pieces of Real Property Roswell, N.M., 17 F.3d 1306, 1316 (10th Cir.1994); United States v. One Urban Lot Located at 1 Street A-l, 885 F.2d 994, 999 (1st Cir.1989). In circumstances strikingly similar to those presented by this case, other circuits also have refused to require personal service to potential claimants incarcerated in prison. See United" }, { "docid": "22925340", "title": "", "text": "seizure violated Nitsua’s right to due process. The illegality of the seizure, however, does not necessarily invalidate the forfeiture. See United States v. James Daniel Good Property, 971 F.2d 1376, 1384 (9th Cir.1992), aff'd in part, rev’d in part, — U.S. -, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993); United States v. 4492 S. Livonia Rd., 889 F.2d 1258, 1265-66 (2d Cir.1989) (and cases cited therein). The judgment of forfeiture may still stand, “so long as impermissi-bly obtained evidence is not used in the forfeiture proceeding.” 4492 S. Livonia Rd., 889 F.2d at 1265. The government, however, must return to Nitsua the rents that accrued during the illegal seizure of the properties at issue. See James Daniel Good Property, 971 F.2d at 1384. IV. Reasonableness of Means Employed to Give Notice. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). “The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Id. at 315, 70 S.Ct. at 657. The Supplemental Rules require the government to give notice of the forfeiture proceedings only by publication. See Fed. R.CÍV.P. C(4). When the government can reasonably ascertain the name and address of an interested party, however, notice by publication is not sufficient, Mullane, 339 U.S. at 317-18, 70 S.Ct. at 658-59; Walker v. City of Hutchinson, 352 U.S. 112, 116, 77 S.Ct. 200, 202, 1 L.Ed.2d 178 (1956); due process requires that the government send “[n]otice by mail or other means as certain to ensure actual notice,” Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983). Due process does not require, however, that the interested party actually receive notice. Weigner v. City of New York, 852 F.2d 646, 649 (2d" }, { "docid": "18256001", "title": "", "text": "the entry of default. This is not to say that actual notice is required in every case and under every set of circumstances. It is not. See Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 490, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988); Whiting, 231 F.3d at 76. But the absence of actual notice of the forfeiture proceeding means that an inquiring court must look beyond Lane’s knowledge of the seizure and consider whether, given the totality of the circumstances, the published announcements (which Lane claims not to have seen) satisfied the government’s obligation to provide Lane with some constitutionally sufficient notice. In cases involving the absence of actual notice, the result of the ensuing inquiry does not depend on whether the government actually attempted individually to contact each and every party in interest but, rather, on whether the government’s attempt to provide notice is, under all the circumstances, reasonably designed to apprise the parties in interest of the currency of the forfeiture action. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Gonzalez-Gonzalez, 257 F.3d at 36; United States v. One Urban Lot Located at 1 Street A-1, 885 F.2d 994, 998-99 (1st Cir.1989). This depends, in turn, on what information was reasonably available to the government when it commenced the forfeiture proceeding. While every case is different and context can be all-important,, this paradigm means, in general, that when the government knows or easily can ascertain the identity and whereabouts of a potential claimant, reasonableness requires the government, at a minimum, to take easily available steps in its attempt to notify the claimant. See Tulsa Prof'l Collection Servs., 485 U.S. at 491, 108 S.Ct. 1340; Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798 n. 4, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983); Lombard v. United States, 356 F.3d 151, 155 (1st Cir.2004). When, however, a potential claimant’s name or whereabouts are unknown and, practically speaking, unavailable, notice by publication can serve as a satisfactory surrogate. See Mullane, 339 U.S. at 317, 70 S.Ct." }, { "docid": "18797542", "title": "", "text": "objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). Reasonable notice of a bankruptcy proceeding includes notice of the bar date for filing a proof of claim. See In re Spring Valley Farms, Inc., 863 F.2d 832, 834 (11th Cir.1989) (“due process prevents Section 1141 from being read to extinguish their claims when no notice of the bar date for filing a proof of claim has been sent.”); In re Turning Point Lounge, LTD., 111 B.R. 44, 47 (Bankr.W.D.N.Y.1990) (“The courts which have addressed this issue have uniformly held that the debt owed to a creditor who was not scheduled, did not receive notice of the bar date for filing a proof of claim and therefore, could not participate in the reorganization process is not bound by the plan and its claim is not discharged notwithstanding § 1141(c) and (d)(1)(A)(i)”). The proper inquiry in evaluating the adequacy of notice is whether a party “acted reasonably in selecting means likely to inform persons affected.” Weigner v. City of New York, 852 F.2d 646, 649 (2d Cir.1988), cert. denied, 488 U.S. 1005, 109 S.Ct. 785, 102 L.Ed.2d 777 (1989). In providing notice, “a debtor must make reasonably diligent efforts to uncover the identities of those who have claims against the debtor, although the debtor is not required to search out each conceivable or possible creditor and urge the creditor to file a proof of claim.” In re Thomson McKinnon Securities, Inc., 130 B.R. 717, 720 (Bankr.S.D.N.Y.1991). While creditors with reasonably ascertainable names and addresses are entitled to actual notice, publication notice has been held adequate for unknown creditors. See Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 490, 108 S.Ct. 1340, 1347, 99 L.Ed.2d 565 (1988) (“For creditors who are not ‘reasonably ascertainable,’ publication notice can suffice.”). In the circumstances here: 1. When notice of the bar date was sent out, all those former seamen who were known to be actual or potential claimants (i.e., all those who Waterman knew had manifested signs of illness) were entitled to" }, { "docid": "20283371", "title": "", "text": "have given him direct notice of the forfeiture action and an opportunity to assert the claim. C. The government offers several explanations for not providing direct notice to the trustee. It claims it had no reason to believe the bankruptcy case was still open in 2009, seven years after the filing of the bankruptcy petition. But a quick check of the docket would have shown the case remained open, surely the kind of “reasonably diligent effort[ ]” due process requires the government to undertake in identifying potential third-party claimants. Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 491, 108 S.Ct. 1840, 99 L.Ed.2d 565 (1988). Nor was the trustee a mysterious claimant lurking in the shadows. He had previously objected to the forfeiture of other Erpenbeck assets. On this record, the trustee’s interest in the cash was not merely “conjectural” but one that, “in due course of business,” should have “come to [the government’s] knowledge.” Mullane, 339 U.S. at 317, 70 S.Ct. 652. The government also assumed the trustee would receive notice of the preliminary order of forfeiture through the district court’s case management and electronic case filing (“CM/ECF”) system because the trustee had previously filed a motion in Erpenbeck’s criminal case objecting to the forfeiture of other property. But the government, not the trustee, bears the burden of establishing compliance with statutory notice requirements, see United States v. Robinson, 78 F.3d 172, 173, 175 (5th Cir.1996); cf. Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 377 F.3d 592, 597 (6th Cir.2004), aff'd on other grounds, 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005), and the government offers no evidence that reliance on CM/ECF in this instance to deliver notice was “reasonably calculated, under all the circumstances, to apprise [the trustee] of the pendency of’ the forfeiture proceeding. Mullane, 339 U.S. at 314, 70 S.Ct. 652. The government provided no evidence about how the evolving CM/ECF notification system worked at this time: whether it sent notices of docket activity to all counsel or just to counsel of record for the principal parties, not" }, { "docid": "11410921", "title": "", "text": "L.Ed.2d 40 (1988); Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572(1980); Buzzanco v. Lord Corp., 173 F.Supp.2d 376, 381 (E.D.Pa.2001); Breslin v. Brainard, 2002 WL 31513425 *3 (E.D.Pa.). As is shown below, the Plaintiff has plainly set forth the first requirement, but it is unclear whether she has adequately plead the second. Is a Constitutional Violation Alleged? The Complaint alleges that the County’s decision to serve the rule by publication when it had confirmed the Plaintiffs mailing address is constitutionally inadequate. Complaint, Count I. The County defends its action arguing the Pennsylvania rules of procedure provide for published service. Motion, 8. Does publication service pass constitutional muster when other, more direct methods, are available? Beginning with Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Supreme Court has consistently made clear that service by publication alone failed the “elementary and fundamental requirement of due process ... which is to ... apprise interested parties of the pen-dency of the action and afford them an opportunity to present their objections.” Id. at 314, 70 S.Ct. 652 (citations omitted). Mullane remains the touchstone on the question of the adequacy of the method used to give notice. See Dusenbery v. United States, 534 U.S. 161, 168, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002); Mennonite Board of Missions v. Adams, 462 U.S. 791, 797, 103 S.Ct. 2706, 2710, 77 L.Ed.2d 180 (1983); Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 484, 108 S.Ct. 1340, 1344, 99 L.Ed.2d 565 (1988). That is not to say, however, that notice by publication can never be sufficient service. See City of New York v. New York, N.H. & H.R. Co., 344 U.S. 293, 296, 73 S.Ct. 299, 301, 97 L.Ed. 333 (1953) (“[W]hen the names, interests and addresses of persons are unknown, plain necessity may cause a resort to publication.”). But with respect to individuals whose names and addresses are known or easily ascertainable, notice by publication is simply insufficient. See Schroeder v. City of New York, 371 U.S. 208, 212-213, 83" }, { "docid": "18256003", "title": "", "text": "652; Approximately 2,538.85 Shares of Stock, 988 F.2d at 1285; One Urban Lot, 885 F.2d at 998. The hard cases are those in which an interested party’s name or whereabouts were not actually known to the government but may or may not have been reasonably ascertainable. In those instances, an inquiring court must look to “the practicalities and peculiarities of the case.” Mullane, 339 U.S. at 314, 70 S.Ct. 652. The rule of thumb is that the government, in endeavoring to identify and locate po tential claimants, must exercise a degree of diligence commensurate with the particular circumstances — but it need not undertake endless or impractical investigations in the hope of finding a needle in a haystack. See id. at 317-18, 70 S.Ct. 652. In this case, it is undisputed that the government knew there was an additional investor (“possibly a doctor or dentist”) but did not know the investor’s name. There is no exact formula for determining the quantum of diligence due an unidentified yet potentially ascertainable claimant. Rather, the court must consider the circumstances, balance the interests of the government and the individual, and determine whether, on the whole of the record, the government’s efforts were reasonable. See Tulsa Prof'l Collection Servs., 485 U.S. at 484, 108 S.Ct. 1340. The case law makes it clear that the government’s burden is not a heavy one. The government is not required to engage in a sprawling, open-ended investigation to identify and track down unidentified, but potentially interested, parties. See, e.g., Chemetron Corp. v. Jones, 72 F.3d 341, 346 (3d Cir.1995). If, however, the government has easy access to a lead that it knows (or reasonably should know) is potentially fruitful, it has some duty to elicit the available information and take reasonable action in response to it. See Small v. United States, 136 F.3d 1334, 1338 (D.C.Cir.1998); cf. Gonzalez-Gonzalez, 257 F.3d at 38 (suggesting that the government’s failure to act upon available information might result in a due process violation). The extent of the required follow-up will, of course, vary with the nature of the lead, the costs of" }, { "docid": "7649047", "title": "", "text": "We review a district court’s decision to grant summary judgment de novo and draw all reasonable inferences in favor of the nonmoving party. Tatum v. Arkansas Dept. of Health, 411 F.3d 955, 959 (8th Cir.2005). The due process clause of the fifth amendment provides that no person shall “be deprived of ... property, without due process of law.” U.S. Const, amend. Y. An individual facing forfeiture risks being deprived of his or her property and thus is entitled to notice and an opportunity to be heard. See Dusenbery v. United States, 534 U.S. 161, 167, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002). The due process clause does not require that the interested party receive actual notice of the pending action, however. Id. at 169-70, 122 S.Ct. 694. Instead, due process is satisfied if the method of notice is “reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Notice by mail is ordinarily presumed to be constitutionally sufficient. See, e.g., id. at 319, 70 S.Ct. 652; Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 490, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988). But there is no rule that mailed notice need always be considered adequate. See United States v. One Toshiba Color Television, 213 F.3d 147, 153 (3d Cir.2000) (en banc); cf. Covey v. Town of Somers, 351 U.S. 141, 146-47, 76 S.Ct. 724, 100 L.Ed. 1021 (1956). In Dusenbery, the Supreme Court addressed some of the requirements of due process with respect to forfeiture notices sent to prisoners. The Court held that the government had satisfied the due process clause when it sent forfeiture notices via certified mail to a prisoner in a facility that had the following standard mail-delivery practices: A mailroom staff member would sign for the certified letter at the post office and it would be entered into a logbook at the prison; a different staff member, one assigned" }, { "docid": "18256000", "title": "", "text": "putative claimant’s actual knowledge of a forfeiture proceeding can defeat a subsequent due process challenge, even if the government botches its obligation to furnish him with notice. See Gonzalez-Gonzalez v. United States, 257 F.3d 31, 36 (1st Cir.2001); Whiting v. United States, 231 F.3d 70, 74 (1st Cir.2000). Pressing this point, the government emphasizes Lane’s concession that he knew of the initial seizure of the sailboat long before the institution of the forfeiture action. The district court’s denial of Lane’s Rule 60(b) motion appears to have been premised on this theory. The difficulty, however, is that a claimant’s knowledge of a seizure, without more, is insufficient to defeat a challenge premised on an absence of actual notice. In such situations, due process entails “advance notice-in-fact of forfeiture proceedings, as opposed to notice-in-fact of seizure.” Gonzalez-Gonzalez, 257 F.3d at 38. And although Lane was aware of the seizure as early as October of 2004, there is no evidence in the thin record presently before us that suggests he knew of the judicial forfeiture action until after the entry of default. This is not to say that actual notice is required in every case and under every set of circumstances. It is not. See Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 490, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988); Whiting, 231 F.3d at 76. But the absence of actual notice of the forfeiture proceeding means that an inquiring court must look beyond Lane’s knowledge of the seizure and consider whether, given the totality of the circumstances, the published announcements (which Lane claims not to have seen) satisfied the government’s obligation to provide Lane with some constitutionally sufficient notice. In cases involving the absence of actual notice, the result of the ensuing inquiry does not depend on whether the government actually attempted individually to contact each and every party in interest but, rather, on whether the government’s attempt to provide notice is, under all the circumstances, reasonably designed to apprise the parties in interest of the currency of the forfeiture action. See Mullane v. Cent. Hanover Bank & Trust Co.," }, { "docid": "10720861", "title": "", "text": "those interested to make their appearance. Id. at 83, quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 [70 S.Ct. 652, 94 L.Ed. 865] (1950). Notice to creditors embodies a “basic principle of justice-that a reasonable opportunity to be heard must precede judicial denial of a party’s claimed rights.” In re Arch Wireless, Inc., 534 F.3d at 84, quoting City of New York v. New York, N.H. & H.R. Co., 344 U.S. 293, 296, 73 S.Ct. 299, 97 L.Ed. 333 (1953). To ensure creditors’ due process in bankruptcy proceedings, Fed. Rs. Bankr.P. 1007(a) and 2002 require a debtor to list all of his/her/its creditors and notify them of the key events in the bankruptcy proceeding. Caselaw distinguishes between “unknown” and “known” creditors. See In re Arch Wireless, Inc., 534 F.3d at 84. “Unknown creditors” are those whose “interests are either conjectural or future or, although they could be discovered upon investigation, do not in due course of business come to knowledge [of the debtor].” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. at 317, 70 S.Ct. 652. “Known creditors” are those whose claims and identity are actually known or “reasonably ascertainable” by the debtor. Tulsa Prof'l Collection Servs. Inc. v. Pope, 485 U.S. 478, 490, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988). A creditor is “reasonably ascertainable” if his/her/its claim can be discovered through “reasonably diligent efforts.” Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983). These efforts generally include “a careful search of the debtor’s own records.” Louisiana Dep’t of Envt’l Quality v. Crystal Oil Co. (In re Crystal Oil Co.), 158 F.3d 291, 297 (5th Cir.1998). “[I]n order for a claim to be reasonably ascertainable, the debtor must have in his possession ... some specific information that reasonably suggests both the claim for which the debtor may be liable and the entity to whom he would be liable.” Id. at 297. The distinction between these known and unknown creditors implies different approaches to due process. Known creditors must receive notice of deadlines for filing" }, { "docid": "20353074", "title": "", "text": "claims date. City of New York v. New York, N.H. & H.R. Co., 344 U.S. 293, 296, 73 S.Ct. 299, 301, 97 L.Ed. 333 (1953). For unknown claimants, notification by publication will generally suffice. See In re Argonaut Fin. Serv., Inc., 164 B.R. 107, 112 (N.D.Cal.1994); In re Thomson McKinnon Sec., Inc., 130 B.R. 717, 719-20 (Bankr.S.D.N.Y.1991). As characterized by the Supreme Court, a “known” creditor is one whose identity is either known or “reasonably ascertainable by the debtor.” Tulsa Professional Collection Serv., Inc. v. Pope, 485 U.S. 478, 490, 108 S.Ct. 1340, 1347, 99 L.Ed.2d 565 (1988). An “unknown” creditor is one whose “interests are either conjectural or future or, although they could be discovered upon investigation, do not in due course of business come to knowledge [of the debtor].” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 317, 70 S.Ct. 652, 659, 94 L.Ed. 865 (1950). A creditor’s identity is “reasonably ascertainable” if that creditor can be identified through “reasonably diligent efforts.” Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798 n. 4, 103 S.Ct. 2706, 2711 n. 4, 77 L.Ed.2d 180 (1983). Reasonable diligence does not require “impracticable and extended searches ... in the name of due process.” Mullane, 339 U.S. at 317, 70 S.Ct. at 659. A debtor does not have a “duty to search out each conceivable or possible creditor and urge that person or entity to make a claim against it.” In re Charter Co., 125 B.R. 650, 654 (M.D.Fla.1991). Precedent demonstrates that what is required is not a vast, open-ended investigation. See Mullane, 339 U.S. at 317, 70 S.Ct. at 658-59 (“Nor do we consider it unreasonable for the State to dispense with more certain notice to those beneficiaries whose interests are either conjectural or future or, although they could be discovered upon investigation, do not in due course of business come to knowledge of the common trustee.”); see also Trump Taj Mahal Assocs. v. O’Hara (In re Trump Taj Mahal Assocs.), 1993 WL 534494, 1993 U.S. Dist. LEXIS 17827 at * 9 (D.N.J. Dec. 13, 1993) (explaining that" }, { "docid": "7715870", "title": "", "text": "of the above factors leads the Court to conclude that the exercise of specific personal jurisdiction over Defendants Shleifer and Hay is reasonable and appropriate in this case. 2. Personal Service on Hay Defendant Hay reasserts the defense of lack of service of process by claiming that personal service on his attorney was not “good and sufficient.” Due process concerns require that notice be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” United States v. Giraldo, 45 F.3d 509, 511 (1st Cir.1995) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)). In order to provide personal service on Hay, Chief Judge Hornby directed that service of process be made on attorney Lawrence Spiegel, Esq. of Skadden Arps Slate Meagher & Flom, LLP in New York pursuant to Fed.R.Civ.P. 4(f)(3). See Order (Docket No. 22). Plaintiffs served, pursuant to that Order, a Summons and copy of the Complaint on Attorney Spiegel via certified mail, and the Return of Service was filed with this Court. Judge Hornby concluded “that service of process via Spiegel is appropriate given Hay’s efforts to evade service in Russia and Spiegel’s recent acceptance of service on Hay’s behalf in a case also involving Hay’s business dealings in Russia.” Id. Attorney Speigel never argued that Hay failed to have notice, or that Speigel was not in contact with Hay. In fact, Defendant Hay obtained local counsel in Portland, Maine and filed a Motion to Dismiss. It appears that the court-directed service to Hay’s attorney, Speigel, was reasonably calculated to, and did, in fact, accomplish such notice to Defendant Hay. The service of process on Hay comports with due process, and is, therefore, “good and sufficient.” United States v. One Urban Lot, 885 F.2d 994, 998-99 (1st Cir.1989) (quoting Mullane, 339 U.S. at 314, 70 S.Ct. 652). 3. Transfer Defendants have moved for Transfer to the United States District Court for the District of Massachusetts because of improper venue, pursuant" }, { "docid": "16035000", "title": "", "text": "and, by its terms, it is not specifically limited to previously submitted information. Additionally, the section can be read so as to provide a deadline for which Commerce can proceed to the verification of all information provided previous to this deadline. .The court does not address here the issue of which parties were known and which parties were unknown to Commerce and why. It appears from the record that Commerce knew of 211 producers of wooden bedroom furniture. Preliminary Determination, 69 Fed.Reg. at 35,313. Commerce has not indicated how it came to know of these producers, and what procedures it follows in order to ascertain producers, other than sending a letter to MOFCOM. If Maria Yee were \"reasonably ascertainable,” that is could be identified through \"reasonably diligent efforts” it might have been necessary to send Maria Yee \"[n]otice by mail or other means as certain to ensure actual notice.” Tulsa Prof'l Collection Servs. v. Pope, 485 U.S. 478, 491, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (quoting Mennonite Bd. of Missions v. Adams 462 U.S. 791, 798 n. 4 & 800, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983)); but cf. Dusenbery v. United States, 534 U.S. 161, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002) (providing notice by sending a certified letter to a prison inmate satisfied the requirements of notice, even though the inmate did not receive the notice). Unknown parties, on the other hand, are those parties whose “interests are either conjectural or future or, although they could be discovered upon investigation, do not in due course of business come to knowledge....” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 317, 70 S.Ct. 652, 94 L.Ed. 865 (1950); see also Chemetron Corp. v. Jones, 72 F.3d 341, 345-46 (3rd Cir.1995); In re U.S.H. Corp. of N.Y.; Grant v. U.S. Home Corp., 223 B.R. 654, 659-60 (Bankr.S.D.N.Y.1998). As we do not know the extent to which Commerce searched for wooden bedroom furniture manufacturers in China, we are proceeding under the assumption that Maria Yee is properly classified as an unknown party. . For a more detailed consideration" } ]

[ { "docid": "8666462", "title": "", "text": "of a felony of the fourth degree if he or she has previously been convicted or pleaded guilty to a violation of this section. § 2919.12(D). The physician may also be liable for civil compensatory and punitive damages to the minor and her parents. § 2919.12(E). Finally, a doctor violating § 2919.12 may have his or her certificate to practice medicine limited, revoked or suspended, or may be subject to reprimand and probation. Ohio Rev.Code Ann. § 4731.22 (Page Supp. 1985) (“§ 4731.22”). However, the physician can assert the affirmative defenses that he or she was misled regarding the age, marital status, or emancipation of the child, or that the notification was impossible because of an immediate threat of serious risk to the minor’s life or physical health by an emergency requiring the immediate performance of an abortion. § 2919.12(C). B. The Parties Plaintiff The Akron Center for Reproductive Health (“Akron Center”) operates a free-standing medical facility in Summit County, Ohio, offering birth control, pregnancy and abortion services to patients including unmarried, unemancipated women under the age of eighteen. The Akron Center alleges that it, its agents or its employees could be subjected to civil and criminal liability under H.B. 319. Plaintiff Max Pierre Gaujean, M.D., is a physician who performs abortions at the Akron Center. He alleges that he will be subjected by H.B. 319 to criminal and civil penalties and possible impairment of his ability to practice medicine in the state of Ohio. Both Dr. Gaujean and the Akron Center sue on behalf of their minor patients as well as on their own behalf. Plaintiff Patty Poe is an unmarried minor living with her parents in Summit County who is sexually active and believes that she may be pregnant. She alleges that she is mature and that notification to her parents of her pregnancy would cause her emotional harm and force her to continue her pregnancy. Plaintiff Rachel Roe is an unmarried minor living in the home of one of her parents with her two-year old child. She alleges that she is mature and that she has been" } ]

[ { "docid": "21567167", "title": "", "text": "is consistent with the dictates of Bellotti II. We further conclude that the bypass procedure established by Amended Substitute House Bill 319 does not comply with the standards established in Bellotti II and its progeny, and we therefore affirm the judgment of the district court enjoining enforcement of the statute in its entirety. III. The district court found several distinct aspects of the Ohio statute to be constitutionally deficient. They will be discussed seriatim. A. Requirement that the Physician Effectuate Notification The Ohio statute provides that the person who will perform the abortion must notify the minor’s parent of her decision. The district court held that this provision unduly burdens a minor’s right to seek an abortion, and we agree. This court decided a similar issue in Akron I, in which we struck down a statutory provision requiring the attending physician to perform preabortion counseling. [T]he practice of all three plaintiff clinics has been for the counseling to be conducted by persons other than the doctor who performs the abortion. In the absence of a showing that the state’s compelling interest in maternal health would be served by a requirement that such counseling be done by the attending physician, this section is invalid. 651 F.2d at 1207. The Supreme Court upheld this determination. We are not convinced ... that there is as vital a state need for insisting that the physician performing the abortion, or for that matter any physician, personally counsel the patient in the absence of a request. The State’s interest is in ensuring that the woman’s consent is informed and unpressured; the critical factor is whether she obtains the necessary information and counseling from a qualified person, not the identity of the person from whom she obtains it_ [W]e believe that it is unreasonable for a state to insist that only a physician is competent to provide the information and counseling relevant to the informed consent. 462 U.S. at 448-49, 103 S.Ct. at 2502 (footnote omitted). Similarly, in the present case, the state’s interest is in insuring that immature, un-emancipated minors or minors whose best interests require" }, { "docid": "8666464", "title": "", "text": "subjected to physical abuse in her home. Roe has been refused an abortion at the Akron Center because of the imminent operation of H.B. 319. Defendant Gary M. Rosen is the City Prosecutor for the City of Akron, Ohio. Defendant Lynn Slaby is the Prosecuting Attorney of Summit County, Ohio. Plain tiffs allege that Rosen is responsible for prosecuting misdemeanors and Slaby for prosecuting felonies arising under § 2919.-12. Defendant Anthony Celebrezze is the Attorney General of the state of Ohio, and defendant Richard F. Celeste is the Ohio governor. All defendants are sued in their official capacities. Plaintiffs also sue Rosen and Slaby as representatives of all Ohio prosecutors charged with prosecuting violations of § 2919.12, and plaintiffs Poe and Roe also seek to represent the entire class of unmarried, unemancipated minor women in Ohio who are or may become pregnant. However, plaintiffs have not filed a motion to certify either plaintiff or defendant classes. CONCLUSIONS OF LAW II. A. Standing of the Plaintiffs Present case law indisputably supports the standing of the Akron Center and Dr. Gaujean to assert the due process rights of their patients. Birth Control Centers, Inc. v. Reizen, 743 F.2d 352, 358 (6th Cir. 1984); American College of Obstetricians and Gynecologists v. Thornburgh, 737 F.2d 283, 290 n. 6, (3d Cir.1984), prob. juris, noted, — U.S. —, 105 S.Ct. 2015, 85 L.Ed.2d 297 (1985) (“ACOG”), and cases cited therein. It is also indisputable that the Akron Center and Dr. Gaujean have standing to assert their own interests. E.g., Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983). Rachel Roe’s standing is obvious and has not been challenged by the defendants. Defendants Celeste and Celebrezze, however, argue that Patty Poe is not a proper plaintiff in this case because she does not state a claim. Poe’s affidavit states that she is currently sexually active and that she is “uncertain as to whether or not I am pregnant as of this date," }, { "docid": "22979693", "title": "", "text": "should be obvious that “considering her probable education, employment skills, financial resources, and emotional maturity, unwanted motherhood may be exceptionally burdensome for a minor.” Ibid. The State of Ohio has acted with particular msensitivity in enacting the statute the Court today upholds. Rather than create a judicial-bypass system that reflects the sensitivity necessary when dealing with a minor making this deeply intimate decision, Ohio has created a tortuous maze. Moreover, the State has failed utterly to show that it has any significant state interest in deliberately placing its pattern of obstacles in the path of the pregnant minor seeking to exercise her constitutional right to terminate a pregnancy. The challenged provisions of the Ohio statute are merely “poorly disguised elements of discouragement for the abortion decision.” Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 763 (1986). II The majority does not decide whether the Ohio parental-notice statute must contain a judicial-bypass procedure because the majority concludes that the bypass procedure in the statute “meets the requirements identified for parental consent statutes in Danforth, Bellotti, Ashcroft, and Akron.” Ante, at 510. I conclude, however, that, because of the minor’s emotional vulnerability and financial dependency on her parents, and because of the “unique nature of the abortion decision,” Bellotti II, 443 U. S., at 642, and its consequences, a parental-notice statute is tantamount to a parental-consent statute. As a practical matter, a notification requirement will have the same deterrent effect on a pregnant minor seeking to exercise her constitutional right as does a consent statute. See Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 441, n. 31 (1983); H. L. v. Matheson, 450 U. S. 398, 420, n. 9 (1981) (concurring opinion). Thus a notice statute, like a consent statute, must contain a bypass procedure that comports with the standards set forth in Bellotti II. Because I disagree with the Court’s conclusion that the Ohio bypass procedure complies with the dictates of Bellotti II and its progeny, I would strike down Ohio Amended Substitute House Bill 319. The Bellotti II principal opinion stated: “A" }, { "docid": "21567142", "title": "", "text": "at the Akron Center because of the imminent operation of H.B. 319. Defendants were Gary Rosen, City Prosecutor for the City of Akron; Lynn Slaby, Prosecuting Attorney for Summit County, Ohio; Anthony Celebrezze, Attorney General of the State of Ohio; and Richard Celeste, Governor of the State of Ohio. Only the State of Ohio, as intervenor, is participating in this appeal. STATUTORY PROVISIONS Section 2919.12 provides that no person shall knowingly perform or induce an abortion upon an unemancipated minor unless one of the following circumstances is present: (1) the person performing the abortion has given at least twenty-four hours actual notice, in person or by telephone, to the parent or guardian of the minor; (2) one of the woman’s parents or her guardian has consented in writing; (3) a juvenile court has issued an order authorizing the minor to proceed with the abortion in the absence of parental notification; or (4) the juvenile court has constructively authorized the minor to consent to the abortion through its inaction. In lieu of parental notification, the statute further provides that notice may be given to a specified sibling, stepparent or grandparent in a limited range of circumstances. The statute also provides that, if the person required to be notified cannot be reached after reasonable effort, the person providing the abortion must give at least forty-eight hours constructive notice by both regular and certified mail to that person. If the person to whom notice is re quired to be given cannot be reached within the forty-eight hour period, the abortion may proceed. If the person required to be notified under the statute clearly and unequivocally expresses that he or she does not wish to consult with the pregnant minor prior to her abortion, then the abortion may proceed without further delay. For purposes of the statute, there exists a rebuttable presumption that a woman who is unmarried and under the age of eighteen is un-emancipated. The legislation provides that an individual who violates this section for the first time is guilty of a misdemeanor of the first degree, and that a second violation" }, { "docid": "8666461", "title": "", "text": "her parents has engaged in a pattern of physical, sexual, or emotional abuse against her or that notification is otherwise not in her best interests. § 2151.85(A)(4). The court is then required to appoint counsel for the complainant, hear the case within five business days, and immediately decide the case at the end of the hearing. § 2151.85(B)(1), (B)(2), and (C). If the court finds against the minor and dismisses the complaint, it must immediately notify the woman of her right to appeal the decision under Ohio Rev.Code Ann. § 2505.073 (Page Supp.1985) (“§ 2505.073”). A physician is not required to notify a minor’s parents before performing an abortion if a waiver is authorized by the court. § 2919.12(B)(l)(iii). The doctor may also proceed without notification after five days have elapsed from the docketing of the complaint before the juvenile or the appellate court, without a judgment entry by that court. § 2919.12(B)(l)(iv). A physician who violates § 2919.12 is guilty of a misdemeanor of the first degree for hi's or her first offense, and of a felony of the fourth degree if he or she has previously been convicted or pleaded guilty to a violation of this section. § 2919.12(D). The physician may also be liable for civil compensatory and punitive damages to the minor and her parents. § 2919.12(E). Finally, a doctor violating § 2919.12 may have his or her certificate to practice medicine limited, revoked or suspended, or may be subject to reprimand and probation. Ohio Rev.Code Ann. § 4731.22 (Page Supp. 1985) (“§ 4731.22”). However, the physician can assert the affirmative defenses that he or she was misled regarding the age, marital status, or emancipation of the child, or that the notification was impossible because of an immediate threat of serious risk to the minor’s life or physical health by an emergency requiring the immediate performance of an abortion. § 2919.12(C). B. The Parties Plaintiff The Akron Center for Reproductive Health (“Akron Center”) operates a free-standing medical facility in Summit County, Ohio, offering birth control, pregnancy and abortion services to patients including unmarried, unemancipated women under" }, { "docid": "22979678", "title": "", "text": "erroneous deprivation under these provisions and no need to require additional procedural safeguards. The clear and convincing evidence standard, for reasons we have described, does not place an unconstitutional burden on the types of proof to be presented. The minor is assisted by an attorney and a guardian ad litem and the proceeding is ex parte. The standard ensures that the judge will take special care in deciding whether the minor’s consent to an abortion should proceed without parental notification. As a final matter, given that the statute provides definite and reasonable deadlines, Ohio Rev. Code Ann. §2505.073(A) (Supp. 1988), the constructive authorization provision, § 2151.85(B)(1), also comports with due process on its face. > 1 — I Appellees, as a final matter, contend that we should invalidate H. B. 319 in its entirety because the statute requires the parental notice to be given by the physician who is to perform the abortion. In Akron, the Court found unconstitutional a requirement that the attending physician provide the information and counseling relevant to informed consent. See 462 U. S., at 446-449. Although the Court did not disapprove of informing a woman of the health risks of an abortion, it explained that “[t]he State’s interest is in ensuring that the woman’s consent is informed and unpressured; the critical factor is whether she obtains the necessary information and counseling from a qualified person, not the identity of the person from whom she obtains it.” Id., at 448. Appellees maintain, in a similar fashion, that Ohio has no reason for requiring the minor’s physician, rather than some other qualified person, to notify one of the minor’s parents. Appellees, however, have failed to consider our precedent on this matter. We upheld, in Matheson, a statute that required a physician to notify the minor’s parents. See 450 U. S., at 400. The distinction between notifying a minor’s parents and informing a woman of the routine risks of an abortion has ample justification; although counselors may provide information about general risks as in Akron, appel-lees do not contest the superior ability of a physician to garner and" }, { "docid": "22979661", "title": "", "text": "juvenile court must conduct the hearing to preserve the anonymity of the complainant, keeping all papers confidential. §§ 2151.85(D), (F). The minor has the right to expedited review. The statute provides that, within four days after the minor files a notice of appeal, the clerk of the juvenile court shall deliver the notice of appeal and record to the state court of appeals. § 2505.073(A). The clerk of the court of appeals dockets the appeal upon receipt of these items. Ibid. The minor must file her brief within four days after the docketing. Ibid. If she desires an oral argument, the court of appeals must hold one within five days after the docketing and must issue a decision immediately after oral argument. Ibid. If she waives the right to an oral argument, the court of appeals must issue a decision within five days after the docketing. Ibid. If the court of appeals does not comply with these time limits, a constructive order results authorizing the minor to consent to the abortion. Ibid. B Appellees in this action include the Akron Center for Reproductive Health, a facility that provides abortions; Max Pierre Gaujean, M. D., a physician who performs abortions at the Akron Center; and Rachael Roe, an unmarried, un-emancipated, minor woman, who sought an abortion at the facility. In March 1986, days before the effective date of H. B. 319, appellees and others brought a facial challenge to the constitutionality of the statute in the United States District Court for the Northern District of Ohio. The District Court, after various proceedings, issued a preliminary injunction and later a permanent injunction preventing the State of Ohio from enforcing the statute. Akron Center for Reproductive Health v. Rosen, 633 F. Supp. 1123 (1986). The Court of Appeals for the Sixth Circuit affirmed, concluding that H. B. 319 had six constitutional defects. These points, discussed below, related to the sufficiency of the expedited procedures, the guarantee of anonymity, the constructive authorization provisions, the clear and convincing evidence standard, the pleading requirements, and the physician’s personal obligation to give notice to one of the" }, { "docid": "22979696", "title": "", "text": "L. Rev. 83, 100 (1989). The majority considers each provision in a piecemeal fashion, never acknowledging or assessing the “degree of burden that the entire regime of abortion regulations places” on the minor. Ibid. A The obstacle course begins when the minor first enters the courthouse to fill out the complaint forms. The “ ‘procedural trap,’” as it appropriately was described by the Court of Appeals, Akron Center for Reproductive Health v. Slaby, 854 F. 2d 852, 863 (CA6 1988), requires the minor to choose among three forms. The first alleges only maturity; the second alleges only that the abortion is in her best interest. App. 6-11. Only if the minor chooses the third form, which alleges both, id., at 12-13, may the minor attempt to prove both maturity and best interest as is her right under Bellotti II. See Ohio Rev. Code Ann. § 2151.85(C)(3) (Supp. 1988). The majority makes light of what it acknowledges might be “some initial confusion” of the unsophisticated minor who is trying to deal with an unfamiliar and mystifying court system on an intensely intimate matter. Ante, at 516-517. The Court points out that the minor, with counsel appointed after she filed the complaint, “may move for leave to amend the pleadings” and avers that it “seems unlikely that the Ohio courts will treat a minor’s choice of complaint form without due care.” Ante, at 517. I would take the Ohio Legislature’s word, however, that its pleading requirement was intended to be meaningful. The constitutionality of a procedural provision cannot be analyzed on the basis that it may have no effect. If the pleading requirement prevents some minors from showing either that they are mature or that an abortion would be in their best interests, it plainly is unconstitutional. The majority fails to elucidate any state interest in setting up this barricade for the young pregnant woman — a barricade that will “serve only to confuse . . . her and to heighten her anxiety.” Thornburgh, 476 U. S., at 762. The justification the State put forward before the Court of Appeals was the" }, { "docid": "22979694", "title": "", "text": "in Danforth, Bellotti, Ashcroft, and Akron.” Ante, at 510. I conclude, however, that, because of the minor’s emotional vulnerability and financial dependency on her parents, and because of the “unique nature of the abortion decision,” Bellotti II, 443 U. S., at 642, and its consequences, a parental-notice statute is tantamount to a parental-consent statute. As a practical matter, a notification requirement will have the same deterrent effect on a pregnant minor seeking to exercise her constitutional right as does a consent statute. See Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 441, n. 31 (1983); H. L. v. Matheson, 450 U. S. 398, 420, n. 9 (1981) (concurring opinion). Thus a notice statute, like a consent statute, must contain a bypass procedure that comports with the standards set forth in Bellotti II. Because I disagree with the Court’s conclusion that the Ohio bypass procedure complies with the dictates of Bellotti II and its progeny, I would strike down Ohio Amended Substitute House Bill 319. The Bellotti II principal opinion stated: “A pregnant minor is entitled in such a [judicial-bypass] proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.” 443 U. S., at 643-644 (opinion of Powell, J.) (footnote omitted). The language of the Ohio statute purports to follow the standards for a bypass procedure that are set forth in Bellotti II, but at each stage along the way, the statute deliberately places “substantial state-created obstacles in the pregnant [minor’s] path to an abortion,” Maher v. Roe, 432 U. S. 464, 477, n. 10 (1977), in the legislative hope that she will stumble, perhaps fall, and at least ensuring that she “conquer a multi-faceted obstacle course” before she is able to exercise her constitutional right to an abortion. Dellinger & Sperling, Abortion and the Supreme Court: Retreat from Roe v. Wade, 138 U. Pa." }, { "docid": "22979677", "title": "", "text": "E. 2d 1298, 1302 (1984) (finding a liberal amendment policy in the state civil rules). Regardless of whether Ohio could have written a simpler statute, H. B. 319 survives a facial challenge. Ill Appellees contend our inquiry does not end even if we decide that H. B. 319 conforms to Danforth, Bellotti, Mathe-son, Ashcroft, and Akron. They maintain that H. B. 319 gives a minor a state-law substantive right “to avoid unnecessary or hostile parental involvement” if she can demonstrate that her maturity or best interests favor abortion without notifying one of her parents. They argue that H. B. 319 deprives the minor of this right without due process because the pleading requirements, the alleged lack of expedition and anonymity, and the clear and convincing evidence standard make the bypass procedure unfair. See Mathews v. Eldridge, 424 U. S. 319, 335 (1976). We find no merit in this argument. The confidentiality provisions, the expedited procedures, and the pleading form requirements, on their face, satisfy the dictates of minimal due process. We see little risk of erroneous deprivation under these provisions and no need to require additional procedural safeguards. The clear and convincing evidence standard, for reasons we have described, does not place an unconstitutional burden on the types of proof to be presented. The minor is assisted by an attorney and a guardian ad litem and the proceeding is ex parte. The standard ensures that the judge will take special care in deciding whether the minor’s consent to an abortion should proceed without parental notification. As a final matter, given that the statute provides definite and reasonable deadlines, Ohio Rev. Code Ann. §2505.073(A) (Supp. 1988), the constructive authorization provision, § 2151.85(B)(1), also comports with due process on its face. > 1 — I Appellees, as a final matter, contend that we should invalidate H. B. 319 in its entirety because the statute requires the parental notice to be given by the physician who is to perform the abortion. In Akron, the Court found unconstitutional a requirement that the attending physician provide the information and counseling relevant to informed consent. See" }, { "docid": "16968231", "title": "", "text": "authorizing exemption from strictures of parental notification scheme in “those cases in which ... notification of the minor’s parents is not in the minor’s best interests” (emphasis added)). Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, concurring in the judgment. We assumed in Ohio v. Akron Center for Reproductive Health, 497 U. S. 502 (1990) (Akron II), that a young woman’s demonstration that an abortion would be in her best interest was sufficient to meet the requirements of the Ohio statute’s judicial bypass provision. In my view, that case requires us to make the same assumption here. Whether that is a necessary showing is a question we need not reach. In Akron II, we upheld a statute authorizing a judicial bypass of a parental notice requirement on the understanding that Ohio Rev. Code Ann. § 2151.85(C)(2) (1995) required the juvenile court to authorize the procedure whenever it determined that “the abortion is in the minor’s best interest,” 497 U. S., at 511. Given the fact that the relevant text of the Montana statute at issue in this case, Mont. Code Ann. § 50-20-212(5)(b) (1995), is essentially identical to the Ohio provision, coupled with the fact that the Montana Attorney General has advised us that “the best interests standard in § 50-20-212(5)(b) [is] either identical to or substantively indistinguishable from the best interests” provision construed in Akron II, Pet. for Cert. 7, it is surely appropriate to assume that the Montana provision also requires the court to authorize the minor’s consent whenever the abortion is in her best interests. So understood, the Montana statute is plainly constitutional under our ruling in Akron II. Because the Court of Appeals erroneously construed the statute in a manner that caused that court to hold the statute unconstitutional, I agree with the majority that the judgment below should be reversed. While a showing that an abortion is in a young woman’s best interest is therefore sufficient to satisfy the Montana judicial bypass provision as we understood an analogous statute in Akron II, I do not think the Court need address whether the Montana" }, { "docid": "22979662", "title": "", "text": "this action include the Akron Center for Reproductive Health, a facility that provides abortions; Max Pierre Gaujean, M. D., a physician who performs abortions at the Akron Center; and Rachael Roe, an unmarried, un-emancipated, minor woman, who sought an abortion at the facility. In March 1986, days before the effective date of H. B. 319, appellees and others brought a facial challenge to the constitutionality of the statute in the United States District Court for the Northern District of Ohio. The District Court, after various proceedings, issued a preliminary injunction and later a permanent injunction preventing the State of Ohio from enforcing the statute. Akron Center for Reproductive Health v. Rosen, 633 F. Supp. 1123 (1986). The Court of Appeals for the Sixth Circuit affirmed, concluding that H. B. 319 had six constitutional defects. These points, discussed below, related to the sufficiency of the expedited procedures, the guarantee of anonymity, the constructive authorization provisions, the clear and convincing evidence standard, the pleading requirements, and the physician’s personal obligation to give notice to one of the minor’s parents. Akron Center for Reproductive Health v. Slaby, 854 F. 2d 852 (1988). The State of Ohio, on appeal under 28 U. S. C. § 1254(2) (1982 ed.), prob. juris, noted, 492 U. S. 916 (1989), challenges the Court of Appeals’ decision in its entirety. Appellees seek affirmance on the grounds adopted by the Court of Appeals and on other grounds. II We have decided five cases addressing the constitutionality of parental notice or parental consent statutes in the abortion context. See Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976); Bellotti v. Baird, 443 U. S. 622 (1979); H. L. v. Matheson, 450 U. S. 398 (1981); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476 (1983); Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983). We do not need to determine whether a statute that does not accord with these cases would violate the Constitution, for we conclude that H. B. 319 is consistent with them. A This dispute turns," }, { "docid": "22979671", "title": "", "text": "in and more able to interpret the laws of their respective States’ ” than are we, Frisby v. Schultz, 487 U. S. 474, 482 (1988), the Court of Appeals’ decision strikes us as dubious. Interpreting the term “days” in § 2505.073(A) to mean business days instead of calendar days seems inappropriate and unnecessary because of the express and contrasting use of “business day[s]” in § 2151.85(B)(1). In addition, because appellees are making a facial challenge to a statute, they must show that “no set of circumstances exists under which the Act would be valid.” Webster v. Reproductive Health Services, 492 U. S. 490, 524 (1989) (O’Connor, J., concurring). The Court of Appeals should not have invalidated the Ohio statute on a facial challenge based upon a worst-case analysis that may never occur. Cf. Ohio Rev. Code Ann. § 2505.073(A) (Supp. 1988) (allowing the court of appeals, upon the minor’s motion, to shorten or extend the time periods). Moreover, under our precedents, the mere possibility that the procedure may require up to 22 days in a rare case is plainly insufficient to invalidate the statute on its face. Ashcroft, for example, upheld a Missouri statute that contained a bypass procedure that could require 17 calendar days plus a sufficient time for deliberation and decisionmak-ing at both the trial and appellate levels. See 462 U. S., at 477, n. 4, 491, n. 16. B Appellees ask us, in effect, to extend the criteria used by some Members of the Court in Bellotti and the cases following it by imposing three additional requirements on bypass procedures. First, they challenge the constructive authorization provisions in H. B. 319, which enable a minor to obtain an abortion without notifying one of her parents if either the juvenile court or the court of appeals fails to act within the prescribed time limits. See Ohio Rev. Code Ann. §§2151.85 (B)(1), 2505.073(A), and 2919.12(B)(l)(a)(iv) (1987 and Supp. 1988). They speculate that the absence of an affirmative order when a court fails to process the minor’s complaint will deter the physician from acting. We discern no constitutional defect in" }, { "docid": "22979715", "title": "", "text": "risk of violence. I would affirm the judgments below on the grounds of the several constitutional defects identified by the District Court and the Court of Appeals. The pleading requirements, the so-called and fragile guarantee of anonymity, the insufficiency of the expedited procedures, the constructive-authorization provision, and the “clear and convincing dence” requirement singly and collectively cross the limit of constitutional acceptance. Ill Even if the Ohio statute complied with the Bellotti II requirements for a constitutional court bypass, I would conclude that the Ohio procedure is unconstitutional because it requires the physician’s personal and nondelegable obligation to give the required statutory notice. Particularly when viewed in context with the other impediments this statute places in the minor’s path, there is more than a “possibility” that the physician-notification provision “was motivated more by a legislative interest in placing obstacles in the woman’s path to an abortion, see Maher v. Roe, 432 U. S. 464, 474 (1977), than by a genuine interest in fostering informed deci-sionmaking. ” Ante, at 524 (Stevens, J., concurring in judgment). Most telling in this regard is the fact that, according to the Court of Appeals and the District Court, the State has never claimed that personal notice by the physician was required to effectuate an interest in the minor’s health until the matter reached this Court. In fact, the State has taken three different positions as to its justification for this provision. See 854 F. 2d, at 862 (“[T]he state’s interest is in insuring that immature, unemancipated minors or minors whose best interests require notification have an adequate opportunity for parental intervention. The state has made no showing that this interest is advanced by requiring the attending physician, as opposed to another qualified, responsible person, to effectuate notification”); 633 F. Supp., at 1135 (“[T]he state’s attempt to characterize this duty as ‘merely ministerial’ does not advance its case at all, but rather suggests that its interest in having the physician perform this function is even less weighty than having him or her perform counseling to obtain informed consent [that was struck down in Akron v. Akron" }, { "docid": "1278953", "title": "", "text": "BRUNETTI, Circuit Judge: Plaintiffs-appellees Dr. Eugene Glick, a physician, and Planned Parenthood of Washoe County, a non-profit family planning clinic, challenged the constitutionality of Nevada Revised Statute (NRS) 442.-253(l)(c), which requires that an attending physician performing an abortion explain the physical and emotional implications of having an abortion to the woman; NRS 442.255, which requires parental notification or court authorization before a physician may perform an abortion upon an un-emancipated minor; NRS 442.2555, which provides an appeal procedure when such court authorization has been denied; and NRS 442.257, which provides for criminal penalties for the violation of NRS 442.-253(l)(c) and NRS 442.255. Appellees sought declaratory and injunctive relief pursuant to the Constitution and 42 U.S.C. § 1983. Defendants-appellants are the Attorney General of the State of Nevada and Nevada’s seventeen District Attorneys, the state and local officials charged with enforcing the challenged statute. On motion for preliminary injunction, the district court held that the explanation requirement was constitutional, but that the parental notification requirement (NRS 442.255), the appeal procedure (NRS 442.-2555), and the criminal penalty provision (NRS 442.257) would be preliminarily enjoined. Glick v. McKay, 616 F.Supp. 322 (D.Nev.1985). Defendants appeal the court’s preliminary injunction order. After briefing and argument, we withheld judgment pending the decision of the United States Supreme Court in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), Hartigan v. Zbaraz, 484 U.S. 171, 108 S.Ct. 479, 98 L.Ed.2d 478 (1987), Hodgson v. Minnesota, — U.S. -, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990), and Ohio v. Akron Center for Reproductive Health, — U.S.-, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (Akron II), which had been accepted for review. We now affirm. I. A district court’s order regarding preliminary injunctive relief is subject to limited review. The grant of a preliminary injunction will be reversed only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Religious Technology Center, Church of Scientology Int’l, Inc. v. Scott, 869 F.2d 1306, 1309 (9th Cir.1989). However, the" }, { "docid": "21567161", "title": "", "text": "notification was not in their best interests. Accordingly, the only issue before the Court was whether a mere notification requirement violated the constitutional rights of an immature dependent minor. The Court held that it did not. The Supreme Court once again considered the constitutionality of a parental intervention municipal ordinance in Akron I, 462 U.S. at 416, 103 S.Ct. at 2485. In Akron I, the Court affirmed in part and reversed in part the judgment of this court in Akron Center for Reproductive Health v. City of Akron, 651 F.2d 1198 (6th Cir.1981). Under consideration in Akron I were two provisions of an Akron ordinance regarding parental notice and consent. Section 1870.-05(A) was a parental notification requirement which provided that no physician could perform an abortion on an unmarried pregnant woman under the age of eighteen without first having given twenty-four hours actual notice to one of her parents, or if the parent could not be reached after reasonable effort, seventy-two hours constructive notice by certified mail to the last known address of the parent. Section 1870.05(B) was a parental consent provision prohibiting abortion upon a woman under the age of fifteen without the informed written consent of one of her parents. This court struck down section 1870.-05(B), the parental consent provision, on the authority of Danforth. We concluded that, because the ordinance provided a blanket veto over the minor’s decision to have an abortion, it could not withstand constitutional challenge. With regard to the notification provisions contained in section 1870.05(A), we concluded that, under Matheson, supra, a parental notification statute is valid insofar as it applies to immature minors or minors who are unable to establish that their best interests are not served by parental intervention. Because none of the plaintiffs before this court were mature or emancipated minors or minors claiming that notification would not be in their best interests, we refused to find section 1870.05(A) facially unconstitutional. The Supreme Court affirmed this court’s determination that the parental consent requirement for minors under fifteen was unconstitutional. Akron I, 462 U.S. at 441-42, 103 S.Ct. at 2498-99. Because the" }, { "docid": "21567148", "title": "", "text": "she wishes to have an abortion. DISTRICT COURT’S CONCLUSIONS On April 22, 1986, the district court filed its memorandum and order enjoining enforcement of the statute. Akron Center for Reproductive Health v. Rosen, 633 F.Supp. 1123 (N.D.Ohio 1986). After disposing of procedural arguments not relevant to the pending appeal, the district court proceeded to the merits of the constitutional claims presented by the plaintiffs. The district court recognized that the constitution is not violated by a statute which requires notice to the parents of immature, dependent minors seeking abortions. However, the district court went on to conclude that a bypass procedure is constitutionally mandated in order that notification is not required to be given to the parents of mature minors or minors whose best interests do not include parental intervention. The district court concluded that the bypass procedure contained in the Ohio statute was constitutionally deficient for several reasons; viz., the “constructive order” provision, which allows an abortion to be performed without parental notification when the court fails to act in a timely manner, was unconstitutionally vague; the statutory requirement that the notice be given by the physician, as opposed to some other responsible individual, unduly burdened the minor woman’s right of access to an abortion; and the “clear and convincing evidence ” standard of proof constituted an impermissible burden on the right of access to an abortion. Likewise, the pleading requirements contained in the Ohio legislation were found defective because they have the effect of precluding juvenile court judges from making all findings of fact required by controlling precedent. The district court further found that the length of time required to complete the bypass procedure was impermissibly long and that the statute’s confidentiality provision was inadequate to protect the rights of the minor complainants. However, the district court rejected the plaintiffs’ arguments that the twenty-four hour postnotification waiting period constituted an impermissible burden on the right to seek an abortion. Finally, the district court rejected the argument that each complainant must be provided with court-appointed counsel on appeal. In summary, the district court concluded: [Tjhere are numerous constitutional defects" }, { "docid": "22979695", "title": "", "text": "pregnant minor is entitled in such a [judicial-bypass] proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.” 443 U. S., at 643-644 (opinion of Powell, J.) (footnote omitted). The language of the Ohio statute purports to follow the standards for a bypass procedure that are set forth in Bellotti II, but at each stage along the way, the statute deliberately places “substantial state-created obstacles in the pregnant [minor’s] path to an abortion,” Maher v. Roe, 432 U. S. 464, 477, n. 10 (1977), in the legislative hope that she will stumble, perhaps fall, and at least ensuring that she “conquer a multi-faceted obstacle course” before she is able to exercise her constitutional right to an abortion. Dellinger & Sperling, Abortion and the Supreme Court: Retreat from Roe v. Wade, 138 U. Pa. L. Rev. 83, 100 (1989). The majority considers each provision in a piecemeal fashion, never acknowledging or assessing the “degree of burden that the entire regime of abortion regulations places” on the minor. Ibid. A The obstacle course begins when the minor first enters the courthouse to fill out the complaint forms. The “ ‘procedural trap,’” as it appropriately was described by the Court of Appeals, Akron Center for Reproductive Health v. Slaby, 854 F. 2d 852, 863 (CA6 1988), requires the minor to choose among three forms. The first alleges only maturity; the second alleges only that the abortion is in her best interest. App. 6-11. Only if the minor chooses the third form, which alleges both, id., at 12-13, may the minor attempt to prove both maturity and best interest as is her right under Bellotti II. See Ohio Rev. Code Ann. § 2151.85(C)(3) (Supp. 1988). The majority makes light of what it acknowledges might be “some initial confusion” of the unsophisticated minor who is trying to deal with an unfamiliar and mystifying" }, { "docid": "22979663", "title": "", "text": "minor’s parents. Akron Center for Reproductive Health v. Slaby, 854 F. 2d 852 (1988). The State of Ohio, on appeal under 28 U. S. C. § 1254(2) (1982 ed.), prob. juris, noted, 492 U. S. 916 (1989), challenges the Court of Appeals’ decision in its entirety. Appellees seek affirmance on the grounds adopted by the Court of Appeals and on other grounds. II We have decided five cases addressing the constitutionality of parental notice or parental consent statutes in the abortion context. See Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976); Bellotti v. Baird, 443 U. S. 622 (1979); H. L. v. Matheson, 450 U. S. 398 (1981); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476 (1983); Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983). We do not need to determine whether a statute that does not accord with these cases would violate the Constitution, for we conclude that H. B. 319 is consistent with them. A This dispute turns, to a large extent, on the adequacy of H. B. 319’s judicial bypass procedure. In analyzing this aspect of the dispute, we note that, although our cases have required bypass procedures for parental consent statutes, we have not decided whether parental notice statutes must contain such procedures. See Matheson, supra, at 413, and n. 25 (upholding a notice statute without a bypass procedure as applied to immature, dependent minors). We leave the question open, because, whether or not the Fourteenth Amendment requires notice statutes to contain bypass procedures, H. B. 319’s bypass procedure meets the requirements identified for parental consent statutes in Danforth, Bellotti, Ashcroft, and Akron. Danforth established that, in order to prevent another person from having an absolute veto power over a minor’s decision to have an abortion, a State must provide some sort of bypass procedure if it elects to require pa rental consent. See 428 U. S., at 74. As we hold today in Hodgson v. Minnesota, ante, p. 417, it is a corollary to the greater intrusiveness of consent statutes" }, { "docid": "21567141", "title": "", "text": "MILBURN, Circuit Judge. Intervenor-appellant State of Ohio appeals the judgment of the district court declaring Ohio Amended Substitute House Bill 319 (H.B. 319) unconstitutional. H.B. 319, which enacted Ohio Rev.Code §§ 2151.85 and 2505.073 and amended Ohio Rev.Code § 2919.12, requires parental notification by physicians who'intend to perform abortions on unmarried, unemanci-pated women under the age of eighteen. For the reasons that follow, we affirm. I. On March 21, 1986, plaintiffs filed an action challenging the constitutionality of H.B. 319 (attached hereto as Appendix I) which requires that a physician who intends to perform an abortion on an unmarried, unemancipated minor must notify her parents unless one of several exceptions is present. Plaintiffs were the Akron Center for Reproductive Health, a facility which performs abortions on minors; Dr. Max Pierre Gaujean, a physician who performs abortions at the Akron Center; Patty Poe, an unmarried minor who believed she might be pregnant; and Rachel Roe, an unmarried minor living in the home of one of her parents with her two-year-old son. Roe was refused an abortion at the Akron Center because of the imminent operation of H.B. 319. Defendants were Gary Rosen, City Prosecutor for the City of Akron; Lynn Slaby, Prosecuting Attorney for Summit County, Ohio; Anthony Celebrezze, Attorney General of the State of Ohio; and Richard Celeste, Governor of the State of Ohio. Only the State of Ohio, as intervenor, is participating in this appeal. STATUTORY PROVISIONS Section 2919.12 provides that no person shall knowingly perform or induce an abortion upon an unemancipated minor unless one of the following circumstances is present: (1) the person performing the abortion has given at least twenty-four hours actual notice, in person or by telephone, to the parent or guardian of the minor; (2) one of the woman’s parents or her guardian has consented in writing; (3) a juvenile court has issued an order authorizing the minor to proceed with the abortion in the absence of parental notification; or (4) the juvenile court has constructively authorized the minor to consent to the abortion through its inaction. In lieu of parental notification, the statute" } ]

[ { "docid": "9780128", "title": "", "text": "BOOTH, District Judge. These two actions were commenced in the state court of Kansas, and removed to the federal court by the defendant Empire Gas & Fuel Company on the alleged grounds: (1) That the complaints stated a separable controversy between the defendant company and the respective plaintiffs; (2) that the individual defendants were fraudulently joined for the purpose of defeating removal. Issue was joined in the federal court on the question of removal. A hearing was had and testimony taken. Motions were made at the same time to remand the cases to the respective state courts whence they had been removed. The federal court denied the motions to remand, resting its decision upon the first ground, and not passing upon the ground of fraudulent joinder. The cases were thereafter consolidated for trial, and tried, resulting in verdicts and judgments for the defendants. By separate writs of error the respective plaintiffs, seek reversal of said judgments. The two cases have been heard here together, the assignment of errors being substantially the same in each case. Considering the assignments of error in groups, it appears that plaintiffs in error rely upon four grounds for reversal: (1) Refusal of the trial court to remand the cases to the state court; (2) giving of certain instructions to the jury to which exceptions were taken; (3) refusal to give -certain requested instructions to the jury; (4) sustaining objections to the introduction of the testimony of one witness. The complaints in the two actions are in substance identical. Each contains allegations that an oil lease in the usual form existed between plaintiff as lessor and the defendant company as lessee; a copy of the lease is made part of the complaint; that the defendant company owned similar leases on all of the lands immediately adjoining plaintiff’s land; that the individual defendants were managing agents of the defendant company, and had control and management of the operation of said leases; that the defendants drilled wells on the lands adjoining plaintiff’s land, and thereby drained oil from the plaintiff’s land; that defendants failed and refused to develop" } ]

[ { "docid": "16041597", "title": "", "text": "that the circuit court of Grundy county had no jurisdiction on the ground that, nnder the venue statutes of Missouri, the action could not be brought against him in Grundy county. Street also answered to the merits. The plea to the jurisdiction was overruled by the state eourt. Defendant Standard Oil Company removed the case to the United States court for the Western district of Missouri. The grounds of removal alleged were: First, diversity of citizenship between the defendant Standard Oil Company and plaintiff, and a separable controversy between them; second, that the acts of negligence alleged against Street were all acts of nonfeasance and not such acts of misfeasance as conld make him jointly liable with defendant Standard Oil Company; third, that Street was not a real hut a mere paper defendant, inasmuch as the circuit eourt of Grundy county had not acquired and could not acquire jurisdiction over the person of Street; fourth, that the joinder of Street was fraudulent and made for the purpose of preventing removal. The facts claimed to constitute fraud were set out at length and consisted mainly in averments that the acts of negligence charged against Street were false and known by plaintiff to he false. Plaintiff filed a motion to remand, denying the allegations of the petition for removal. There weiw thus presented to the trial court four questions: First, whether the complaint showed on its face that plaintiff attempted to state a joint cause of action against the Standard Oil Company and Street; second, whether Street was a real defendant in the ease; third, whether the facts stated in the complaint could, as a matter of law, constitute a joint cause of action against the two defendants; fourth, whether plaintiff had in fact, though not on the face of the complaint, fraudulently joined Street as a defendant in order to prevent removal. The fourth question involved an issue of fact. Evidence was accordingly taken thereon. The court finally denied the motion to remand, but without indicating the particular ground or grounds of the ruling. The plaintiff declining to proceed further with" }, { "docid": "22574526", "title": "", "text": "Plaintiffs by the escape of gasoline from Defendants’ property onto Plaintiffs’ property. Defendant Coleman was served with a copy of the complaint on September 29,1995. On October 20, Defendants filed a notice of removal of the case to the District Court for the Northern District of Georgia; Defendants alleged that Georgia-resident Defendant Coleman had been fraudulently joined to defeat diversity jurisdiction. On November 13, Defendant Coleman submitted a motion for summary judgment, claiming that he did not cause Plaintiffs’ harm. In support of this motion, Coleman submitted his own affidavit and the affidavit of a Crown engineer. These affidavits said that, although Crown formerly operated a service station on the land adjacent to Plaintiffs’ property and stored petroleum in underground storage tanks (USTs), those USTs were removed from the ground before Coleman became the owner of the property. Coleman swore in his affidavit that, during his ownership, he “never caused the release of any petroleum products at the S. Atlanta Rd. property [that is, his own land].” Also on November 13, Plaintiffs moved for remand to state court, arguing that they stated a valid claim for continuing nuisance against Coleman under Georgia law. Defendants responded by contending that Plaintiffs’ complaint only alleged a cause of action for trespass and, if a nuisance had been alleged, that Plaintiffs could succeed on no nuisance claim against Coleman. On November 30, Plaintiffs moved to amend their complaint to state expressly a cause of action for nuisance. On January 11, 1996, the district court issued an order (1) denying Plaintiffs’ motion to remand to state court, concluding there was no possibility Plaintiffs could establish a cause of action against Coleman; (2) denying Plaintiffs’ motion to amend the complaint as futile; and (3) granting Defendant Coleman’s motion for summary judgment. II. Discussion A. The Law of Remand In a removal case alleging fraudulent joinder, the removing party has the burden of proving that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant" }, { "docid": "9780130", "title": "", "text": "plaintiff’s land by drilling such offset or protection wells on plaintiff’s land as would prevent the drainage of oil therefrom; that the defendants willfully and negligently so handled the pumping of such wells as were drilled on plaintiff’s land that a greatly reduced quantity of oil was produced therefrom; that a conspiracy existed between all of the defendants for the doing of the aforesaid acts, and that said acts were done pursuant thereto; that ill will existed on the part of the defendants toward plaintiff, growing out of some disassociated matter; that plaintiff was damaged by the acts mentioned in the amount of royalties which would have accrued to the plaintiff but for the commission of such acts. 1. On the question of remand, the contention of the plaintiffs is that their cause of action is in tort; that all of the defendants were tort-feasors, and that plaintiffs had the election to sue them jointly, and have done so; and, further, that by reason of tide conspiracy alleged the cause of action is against all of the defendants. The contention of de fend&nts is that the only cause of action stated against the defendant company is for breach of a contract of lease, and that to this cause of action the individual defendants are neither necessary nor proper parties ; that, if any cause of action is stated against the individual defendants, it is one in tort. In our opinion, neither contention is wholly right. An analysis of the complaint leads us to the conclusion that at least two causes of action are stated, though they are so blended in the complaint as to appear but one. The existence of the lease, and of the implied covenant accompanying the same to drill protection wells on plaintiff’s land when and where necessary (admitted by both parties), and failure of the defendant company to drill such wells, make up one cause of action against the defendant company. This cause of action is for breach of contract. The allegation of ill will does not change its character; the allegation of conspiracy with the" }, { "docid": "10481657", "title": "", "text": "the retention of the cause in the state court. A merely defective statement of the plaintiff’s action does not warrant removal ; and it is universally thought that the motive for joining such a defendant is immaterial. It is only where the plaintiff has not, in fact, a cause of action against the resident defendant, and has no reasonable ground for supposing he has, and yet joins him in order to evade the jurisdiction of the federal court, that the joinder can be said to be fraudulent, entitling the real defendant to a removal. In considering the claim of fraudulent joinder in this instance it is of significance that nowhere in the removal petitions or in the affidavits supporting them is it specifically said that Hawksley did not distribute the particular issue of Pic or the placards accompanying it. Hawksley’s affidavit admits his employment by the American News Company. All he says on this subject, aside from hazy general denials, is that he did not represent appellee Street & Smith Publications and that he had no knowledge of or responsibility for the libelous article. He says that the copies of the magazine containing it were purchased by the dealers “in tied bundles from said American News Company.” Too, the affidavit of the president of the latter Company states that the local activities of Hawksley were carried on for its account, and that that Company maintains in Washington stocks of the magazine published by its codefendant Street & Smith. On the point of the communication of the libel, we conclude that the complaint sufficiently discloses a cause of action against Hawksley under the principles prevailing in removal cases. It can hardly he doubted that the extensive and elaborately advertised distribution of the libelous article to the news-stand of Spokane constituted a communication thereof — certainly a communication to the persons operating the stands. And it is elementary that one can not defend against the charge of circulating defamatory matter on the ground that he acted merely as agent for another. However, the briefs appear to assume that the pleading must allege" }, { "docid": "7118841", "title": "", "text": "MEMORANDUM OPINION KEADY, Chief Judge. In this diversity action, the plaintiffs are Cook Industries, Inc., suing on behalf of its corporate subsidiary, Riverside Industries (Riverside), a business entity engaged in processing cotton and bean seed, refining vegetable oil, and manufacturing agricultural chemicals, and the City of Marks, Mississippi (Marks), and the defendants are two sisters, Beverly M. Carlson and Ellen M. Berlin, who are Tennessee citizens owning certain farmlands and subdivision property in and near Marks, Mississippi. The suit was originally brought on December 16, 1969, in the Chancery Court of Quitman County, Mississippi, in which plaintiffs averred that Riverside as lessee-operator of the industrial property and Marks as its lessor-owner held an easement for water drainage across the adjoining property of defendants and sought an injunction to require the opening of a drainage ditch on the Carlson property as well as damages for defendants’ closing the ditch on the previous day. The Chancellor immediately and without notice issued the temporary injunction requested. On January 14, 1970, defendants removed the case to federal court, asserting in their removal petition that their farm tenant, E. T. Kelsay, Jr., a Mississippi citizen, was fraudulently joined as a defendant for the sole purpose of defeating federal diversity jurisdiction. Plaintiffs did not seek any relief against Kelsay, nor did they file a motion to remand or otherwise question removability. Kelsay has made no appearance in the cause. Thus the court disregards his joinder as a party defendant in accepting jurisdiction. Plaintiffs charge in their complaint that for 25 years Marks has continuously used and maintained an easement across defendants’ lands for the drainage of storm and surface waters from a large portion of the city’s area and that Riverside for more than 10 years had used the same drainage ditches for draining water used in its manufacturing operations; and that the closing by defendants of a portion of the drainage ditch at a point near Riverside’s property line, if allowed to remain, would cause the water to back up and flood Riverside’s plant, thereby causing it great property damage and the discontinuance of its" }, { "docid": "4228310", "title": "", "text": "is a separate cause of action stated against the corporation which renders the entire case removable under 28 U.S.C.A. § 1441(c). The latter statute provides: “Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.” The contention that joinder of the individual defendants by the plaintiff is a sham, cannot be supported. The complaint is designed to obtain a joint judgment against all of the defendants, and at least “colorable” grounds for such a judgment have been pleaded. In Smith v. Southern Pacific Co., 9 Cir., 187 F.2d 397, 401, the court said: “But this is not the test in removal cases. The only question we have to determine is whether the complaints evidence a real intention to secure a joint judgment, and colorable ground for it was shown as the record stood when the causes were removed from the state court.” The corporation argues that plaintiff’s motive in joining the individual defendants was to defeat removal. It is clear, however, that plaintiff’s motive is immaterial. See Albi v. Street & Smith Publications, 9 Cir., 140 F.2d 310, 312, where the court said: “ * * * it is universally thought that the motive for joining such a defendant is immaterial. It is only where the plaintiff has not, in fact, a cause of action against the resident defendant, and has no reasonable ground for supposing he has, and yet joins him in order to evade the jurisdiction of the federal court, that the joinder can be said to be fraudulent, entitling the real defendant to a removal.” Since the corporation has failed to show that plaintiff does not have a cause of action against the individual defendants, it is the conclusion of this Court that the joinder of those defendants was proper. Defendant corporation relies almost entirely on the" }, { "docid": "11947164", "title": "", "text": "a derrick, .placed machinery on the premises, and spudded in a test well, at which time-they were to be delivered to it; that the leases and the drilling agreement were assigned to plaintiff; that a well was spudded in while the escrow agreement was in full force;' that the bank refused to deliver the 'leases to plaintiff but returned them to the land owners, who thereafter gave leases to other persons; that the action of the lánd owners and the escrow agent has prevented plaintiff from completing the test well. The prayer of the complaint was that-plaintiff be dectfeedto be the equitable owner of the oil and gas rights under all of the original oil and gas leases on all the real estate covered thereby; that the defendant owners be required to execute new leases to plaintiff; that the defendants now holding leases on the land be decreed to be trustees for plaintiff; and that the defendants who have produced oil or gas- from any of the premises be required to account to plaintiff for the same. Motions were filed to dismiss-the bill of complaint on..the ground that it failed to state a cause of action, because the alleged cause of action was barred by the Statute of Limitations. The motions to dismiss were sustained on the ground that the cause of action was barred by the Statute of Limitations and by laches, and judgment was_ entered for defendants and against plaintiff, from which judgment this appeal is taken. The parties will be referred to as they appeared in the court below. The admitted facts show that prior to January 25, 1921, a large block of oil and gas leases was assembled in Russell County, Kansas, covering approximately four townships. The leases were five year leases, providing by their terms that they were to expire five years from date unless oil and gas was then being produced on the premises. The Focks Drilling and Manufacturing Company was grantee in the leases. An escrow agreement was executed by the Focks Drilling and Manufacturing Corporation, and the Bunker Hill State Bank, wherein" }, { "docid": "22554623", "title": "", "text": "In Bobby Jones Garden Apartments v. Suleski, supra, the Court of Appeals noted that Florida state law was unsettled but that any uncertainties would be resolved in favor of the plaintiff. In Dudley v. Community Public Service Company, 108 F.2d 119 (5th Cir. 1939) our institutional forebearers put the issue quite succinctly: “Though for lack of an exact prece dent there may be doubt whether the [in-state defendant] is legally liable, that would not render his joinder fraudulent.” See also, Howard v. General Motors Corporation, 287 F.Supp. 646 (N.D.Miss.1968). . In Bobby Jones, supra, an out-of-state corporate defendant sought to remove an action from the Florida state courts. Although the plaintiff had joined the corporation’s in-state agent as a codefendant, the corporate defendant argued on appeal that the joinder was fraudulent. Finding that as a matter of state law liability was at best uncertain, this Court nevertheless held that since the possibility of liability did exist, the case was cognizable only in the state courts. . In Tedder, this Court applied the rule set forth in Parks and Bobby Jones, stating that “in accepting as true every fact alleged in Tedder’s state court petition, there is ... no reasonable basis for predicting that [the plaintiff] could prevail under Louisiana law as it exists today.” Tedder at 117. . In Keating, supra, a Louisiana plaintiff brought suit in Louisiana state court against an out-of-state corporation and its in-state agents. The plaintiff, an employee of the corporate defendant, sought damages for a personal injury allegedly caused by the corporation’s in-state agents. Upon the institution of state court proceedings, the out-of-state defendant sought to remove the action to federal court, alleging that its in-state agents had been fraudulently joined. In support of its allegations of fraudulent joinder, the out-of-state defendant invoked a Louisiana statute which provided employers and their agents with an immunity from negligent tort liability and argued that as a matter of law no recovery was possible against the instate agent. In response, the plaintiff argued that the in-state defendant who had allegedly caused the plaintiffs injuries had not been acting" }, { "docid": "21860943", "title": "", "text": "METZNER, District Judge. Plaintiff moves, pursuant to 28 U.S.C. § 1447(c), to remand this action to the Supreme Court, New York County, on the ground that complete diversity of citizenship does not exist between the parties. Plaintiff manufactures jewelry and alleges that it sells its product by means of advertisements placed in newspapers published by the corporate defendant, Army Times Publishing Company. It claims to have a contract with this defendant for this purpose. Plaintiff is a New York corporation. The corporate defendant is incorporated in Delaware, with its principal place of business in Washington, D. C. The fact that its national advertising director may be located in New York does not, on the facts submitted, affect the finding that the corporate defendant is not a citizen of New York for diversity purposes. The individual defendants are residents of New York, and employees of the corporate defendant. Neither one is an officer or a director of the corporation. Remand is resisted by the corporate defendant on the ground that the joinder of the individual defendants in the complaint was fraudulent because no valid cause of action is alleged against them. Plaintiff first contends that the petition for removal is fatally defective because it fails to set forth facts, with sufficient particularity, to sustain the charge of fraudulent joinder. § 1446(a) provides that the petition on removal should contain “a short and plain statement of the facts” which entitle defendants to removal. A reading of the petition here shows that it complies with the directive of the statute. Even if a defendant has been joined solely to prevent removal, such joinder is not fraudulent if the plaintiff does have a claim against the resident defendants. Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 189, 52 S.Ct. 84, 76 L.Ed. 233 (1931). In Parks v. New York Times Co., 308 F.2d 474, at p. 477 (5th Cir. 1962), cert. denied, 376 U.S. 949, 84 S.Ct. 964, 11 L.Ed.2d 969 (1964), the court said: “The joinder is fraudulent if it is clear that, under the law of the state in which the action" }, { "docid": "20954128", "title": "", "text": "employees of Reynolds. Defendants removed the case to federal district court, Southern District of Alabama, on July 20, 1998 on the basis of diversity jurisdiction pursuant to 28 U.S.C.- §§ 1332 and 1441, and plaintiff filed a motion to remand in August 1998. In October 1998, the district court denied plaintiffs motion to remand and dismissed the retailers and individual defendants as fraudulently joined. Plaintiff voluntarily dismissed RJR Nabisco, Inc., which left Reynolds as the sole defendant. Plaintiff is a citizen of Alabama and Reynolds is a New Jersey corporation with its principal place of business in North Carolina. In January 2000, the district court granted defendant’s motion to dismiss for failure to state a claim and entered judgment in favor of Reynolds. See Tillman v. Reynolds Tobacco Co., 89 F.Supp.2d 1297 (S.D.Ala.2000). For removal under 28 U.S.C. § 1441 to be proper, no defendant can be a citizen of the state in which the action was brought. 28 U.S.C. § 1441(b). Even if a named defendant is such a citizen, however, it is appropriate for a federal court to dismiss such a defendant and retain diversity jurisdiction if the complaint shows there is no possibility that the plaintiff can establish any cause of action against that defendant. See Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.1998). “If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court.” Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir.1983), superceded by statute on other grounds as stated in Wilson v. General Motors Corp., 888 F.2d 779 (11th Cir.1989). “The plaintiff need not have a winning case against the allegedly fraudulent defendant; he need only have a possibility of stating a valid cause of action in order for the joinder to be legitimate.” Triggs, 154 F.3d at 1287 (emphasis in original). 1. Individual defendants. We affirm the district court’s decision that the complaint" }, { "docid": "11038715", "title": "", "text": "STONE, Circuit Judge. ■ These are separate but companion ■cases in each of which an alternative motion to dismiss or for summary judgment for defendants was filed. The grounds stated for dismissal were (1) failure to join indispensable parties plaintiff and defendant which would defeat diversity of citizenship and (2) no cause of action set forth. The ground stated for summary judgment was that the petition disclosed the action barred by limitation. Affidavits were filed by both parties in each suit. The court consolidated the cases for hearing on the motions and delivered one opinion covering both cases. Judgments of dismissal for lack of indispensable parties were entered from which these appeals. The two appeals will be covered by one opinion as they have most matters in common. Where necessary they will be examined separately herein. Each suit is in ejectment and for rents, profits and injury to the freehold and for injury to the freehold prior to title dn plaintiffs. The land involved is 308 acres in Columbia County, Arkansas. In the Young case, plaintiff alleges title and right of possession to %4 undivided interest in the land. In the Gilbert case, plaintiffs allege common ownership of a undivided interest in the land. Defendants are the same in each case (Levi Garrett, Asa C. Garrett, Frank Garrett, R. S. Foster, Mid-Continent Petroleum Corporation and The Carter Oil Company). In both cases, the charges against the defendants and the relief sought are substantially identical. As to the individual defendants, the charge is they (the Garretts as to part of the land and Foster as to the balance) “are now attempting to claim said lands and have occupied and used the same to the exclusion of the plaintiffs and have cut and caused to be cut and have converted to their own use the timber therefrom and have sold and attempted to sell interests in the oil and gas therein and have converted the same to their own use and have executed oil and gas leases thereon and caused wells to be drilled thereon and oil and gas removed therefrom and" }, { "docid": "21860944", "title": "", "text": "in the complaint was fraudulent because no valid cause of action is alleged against them. Plaintiff first contends that the petition for removal is fatally defective because it fails to set forth facts, with sufficient particularity, to sustain the charge of fraudulent joinder. § 1446(a) provides that the petition on removal should contain “a short and plain statement of the facts” which entitle defendants to removal. A reading of the petition here shows that it complies with the directive of the statute. Even if a defendant has been joined solely to prevent removal, such joinder is not fraudulent if the plaintiff does have a claim against the resident defendants. Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 189, 52 S.Ct. 84, 76 L.Ed. 233 (1931). In Parks v. New York Times Co., 308 F.2d 474, at p. 477 (5th Cir. 1962), cert. denied, 376 U.S. 949, 84 S.Ct. 964, 11 L.Ed.2d 969 (1964), the court said: “The joinder is fraudulent if it is clear that, under the law of the state in which the action is brought, the facts asserted by the plaintiff as the basis for the liability of the resident defendant could not possibly create such liability so that the assertion of the cause of action is as a matter of local law plainly a sham and frivolous.” To the same effect, see Hancock v. Missouri-Kansas-Texas R. Co., 28 F.2d 45, 46 (W.D.Okl.1928); Gillette v. Koss Construction Co., 149 F.Supp. 353, 355 (W.D. Mo.1957). The frame of reference, therefore, based on the issue presented to the court on this motion, is the complaint. Smith v. Southern Pacific Co., 187 F.2d 397, 401 (9th Cir. 1951); New York Cent R. Co. v. Rodermond Industries, Inc., 113 F.Supp. 435, 436 (D.N.J.1953). The individual defendants are named in the sixth and seventh causes of action. The sixth cause of action alleges that all three defendants entered into a conspiracy “to intentionally inflict financial harm on Harris [the plaintiff].” Pursuant to this conspiracy, it is alleged that the defendants wilfully and maliciously refused to accept plaintiff’s advertisements, although the advertisements complied with" }, { "docid": "22211726", "title": "", "text": "contention that no other proper defendant exists. Neither can we agree with Jernigan’s contention that Ashland Oil’s failure to explain the absence of its codefendants’ consent is fatal. Ashland Oil’s notice to remove makes clear that it takes the position that no other proper defendant exists. Certainly, if there is no need to obtain the consent of the improperly or fraudulently joined defendants, it follows that the defendant need not explain the absence of consent. B. Determination of Jurisdiction Once a case has been removed, the removing party bears the burden of proving that the court has jurisdiction to hear the claim. If the removing party alleges jurisdiction on the basis that non-diverse parties have been fraudulently joined, then the removing party must prove the existence of fraud. To prove its allegation of fraud, Ashland Oil “must show either that there is no 'possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that1 there has been outright fraud in the plaintiff’s pleadings of jurisdictional facts.” In determining whether the joinder of parties was fraudulent, the district court “must evaluate all of the factual allegations in the light most favorable to the plaintiff, resolving all contested issues of substantive fact in favor of the plaintiff.” In this context, the proceeding “is similar to that used for ruling on a motion for summary judgment under Fed.R.Civ.P., Rule 56(b).” If there is “arguably a reasonable basis for predicting that the state law might impose liability on the facts involved,” then there is no fraudulent join-der. Ashland Oil proceeded to prove that, as a matter of law, Jernigan cannot establish a cause of action against any of the Louisiana corporations in state court. In support of this position, Ashland Oil submitted affidavits and depositions to the district court. That court found such evidence compelling and concluded that the Louisiana corporations had been fraudulently joined. In reaching this conclusion, the court found that there was ample evidence to support Ashland Oil’s claims that (1) Baker was a division or subsidiary of Theta II" }, { "docid": "4228311", "title": "", "text": "for it was shown as the record stood when the causes were removed from the state court.” The corporation argues that plaintiff’s motive in joining the individual defendants was to defeat removal. It is clear, however, that plaintiff’s motive is immaterial. See Albi v. Street & Smith Publications, 9 Cir., 140 F.2d 310, 312, where the court said: “ * * * it is universally thought that the motive for joining such a defendant is immaterial. It is only where the plaintiff has not, in fact, a cause of action against the resident defendant, and has no reasonable ground for supposing he has, and yet joins him in order to evade the jurisdiction of the federal court, that the joinder can be said to be fraudulent, entitling the real defendant to a removal.” Since the corporation has failed to show that plaintiff does not have a cause of action against the individual defendants, it is the conclusion of this Court that the joinder of those defendants was proper. Defendant corporation relies almost entirely on the case of Hamilton v. Empire Gas & Fuel Co., 8 Cir., 297 F. 422, certiorari denied 266 U.S. 607, 45 S.Ct. 92, 69 L.Ed. 465, to support its argument that the complaint discloses a separate cause of action against it. In that case the plaintiff had granted an oil lease to the corporate defendant. The complaint alleged that the corporate defendant also held oil leases on property surrounding that of plaintiff; that the individual defendants were the managing agents' of the corporation; and that the defendants refused to develop plaintiff’s land although they had drilled wells on adjoining lands, thereby draining oil from under plaintiff’s property. There were allegations that the defendants acted negligently and wilfully, and that ill will existed between plaintiff and the defendants. The court held that the complaint set forth two causes of action, in effect, one for breach of contract against the corporate lessee for violation of an implied covenant of the oil lease, and another' in tort against all the defendants jointly for negligent management of the pumping of" }, { "docid": "4228312", "title": "", "text": "case of Hamilton v. Empire Gas & Fuel Co., 8 Cir., 297 F. 422, certiorari denied 266 U.S. 607, 45 S.Ct. 92, 69 L.Ed. 465, to support its argument that the complaint discloses a separate cause of action against it. In that case the plaintiff had granted an oil lease to the corporate defendant. The complaint alleged that the corporate defendant also held oil leases on property surrounding that of plaintiff; that the individual defendants were the managing agents' of the corporation; and that the defendants refused to develop plaintiff’s land although they had drilled wells on adjoining lands, thereby draining oil from under plaintiff’s property. There were allegations that the defendants acted negligently and wilfully, and that ill will existed between plaintiff and the defendants. The court held that the complaint set forth two causes of action, in effect, one for breach of contract against the corporate lessee for violation of an implied covenant of the oil lease, and another' in tort against all the defendants jointly for negligent management of the pumping of wells on plaintiff’s land. The corporate defendant here seeks to analogize the Hamilton case to the case at bar, claiming that the complaint in the instant case in reality comprises one cause of action against the corporation for breach of a contract of employment, and another cause of action in tort against the individual defendants for interference with contract relations. The weakness in the Hamilton case is that the court was primarily concerned with the theory of the action — whether it was based on tort or contract — and the case was decided at a time when the test of removability (under the predecessor to 28 U.S.C.A. § 1441(c)) was whether there was a “separable controversy.” The court said, 297 F. at page 429: “The removal of this separable controversy carried the whole case into the federal court.” This test was deliberately changed by Congress in 1948 when Section 1441(c) was enacted in its present form. The change and its significance was carefully considered in the leading case of American Fire & Casualty Co." }, { "docid": "12936862", "title": "", "text": "defendants have Alabama domicile. Therefore, complete diversity does not exist on the face of the complaint. This much is incontestible. Strawbridge v. Curtiss, 3 Cranch (7 U.S.) 267, 2 L.Ed. 435 (1806). Although the rule of complete diversity is of rather' rare vintage in our system of laws, it was also recognized some years ago that a defendant’s “right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy.” Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921). The two “classic” forms of fraudulent joinder exist when “there is no possibility that the plaintiff would be able to establish a cause of action against the resident defendant in state court or [when] there has been outright fraud in the plaintiffs pleading of jurisdictional facts.” Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983); also see Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir.1989). As a corollary to the first form of fraudulent joinder, the Eleventh Circuit has said that a removed case must be remanded if there is any “reasonable basis for predicting that the state law might impose liability on the facts involved.” Crowe v. Coleman, 113 F.3d 1536, 1542 (11th Cir.1997) citing B, Inc. v. Miller Brewing Co., 663 F.2d 545 at 550 (5th Cir. Unit A 1981). More recently, the Court of Appeals has recognized that an “egregious misjoinder” will also support a finding of fraudulent joinder. Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1360 (11th Cir.1996). The court concludes that the Distributor defendants are fraudulently joined to this action because there is “no possibility” that the plaintiff could establish any cause of action against them. Of course, if the plaintiffs could establish any claim against the Distributor defendants, then they would not be fraudulently joined. It is therefore necessary to analyze in some detail each of the claims raised in the complaint. A. COUNT I: NEGLIGENCE AND WANTONNESS Defendants contend that the plaintiffs can establish no negligence cause of" }, { "docid": "16735807", "title": "", "text": "and independent claim or cause of action as to the removing defendants Kirby and General Crude. Defendants oppose remand, pointing to the well known rule that it is the duty of the court to align the parties in the light of the actual controversy; and that, since plaintiffs and Mrs. Hooks are claiming under the same chain of title, they should be aligned as plaintiffs, there being no real controversy between them, citing, among other cases, Peters v. Standard Oil Company of Texas, 5 Cir., 174 F.2d 162. The Peters case is not in point. There, Mrs. Peters, for herself and as guardian for J. S. Peters (non compos mentis), sought to set aside an oil and gas lease on land in which she and her husband owned an undivided % interest. Lindsey, who owned another % interest, was made a party to the suit, it being alleged by Mrs. Peters that he was an indispensable party to a suit for cancellation of the lease, in which he had joined originally. The court held that Lindsey would profit from a cancellation of the lease and therefore should, from plaintiffs petition, be arrayed as a plaintiff. Plaintiff’s complaint in the state court stated a joint cause of action against all defendants. It is difficult to remove a trespass to try title suit brought under the Texas statute. Lomax v. Foster Lumber Co., 5 Cir., 174 F. 959, 965. Cf. Murphy v. Johnson, D.C.Tex., 49 F.2d 410. While the removing defendants here alleged that plaintiffs’ cause of action as against them was separate and independent, there is no allegation of fraudulent joinder of Mrs. Hooks as a party. • In determining whether the right exists to remove, as a separate and independent claim under Sec. 1441(c), the Court must look to the plaintiffs’ pleading, which controls; and this is jurisdictional, Ameriican Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702; Edwards v. E. I. DuPont de Nemours & Co., 5th Cir., 183 F.2d 165. In the absence of a charge that plaintiff acted in bad faith" }, { "docid": "10481656", "title": "", "text": "the libelous article, together with 1,000 extra copies thereof, to be distributed to the news-stands in the city of Spokane. Further, that it caused placards to be posted throughout the city calling special attention to the article. It would appear to be an unavoidable conclusion to be drawn from the pleading that Hawksley, in the conduct of his principal’s business, caused the libelous article to be extensively distributed to news dealers in the city named. The question whether the pleading is sufficiently definite on the point is one of local law, Chicago, R. I. & Pac. Ry. v. Schwyhart, 227 U.S. 184, 193, 33 S.Ct. 250, 57 L.Ed. 473. A Washington statute, § 285, Remington’s Revised Statutes, provides that “in the construction of a pleading, for the purpose of determining its effect, its allegation [s] shall be liberally construed, with a view to substantial justice between the parties.” In borderline situations, where it is doubtful whether the complaint states a cause of action against the resident defendant, the doubt is ordinarily resolved in favor of the retention of the cause in the state court. A merely defective statement of the plaintiff’s action does not warrant removal ; and it is universally thought that the motive for joining such a defendant is immaterial. It is only where the plaintiff has not, in fact, a cause of action against the resident defendant, and has no reasonable ground for supposing he has, and yet joins him in order to evade the jurisdiction of the federal court, that the joinder can be said to be fraudulent, entitling the real defendant to a removal. In considering the claim of fraudulent joinder in this instance it is of significance that nowhere in the removal petitions or in the affidavits supporting them is it specifically said that Hawksley did not distribute the particular issue of Pic or the placards accompanying it. Hawksley’s affidavit admits his employment by the American News Company. All he says on this subject, aside from hazy general denials, is that he did not represent appellee Street & Smith Publications and that he had" }, { "docid": "4228309", "title": "", "text": "CARTER, District Judge. Plaintiff brought suit in the Superior Court of the State of California against a corporate defendant and two individual defendants, alleging generally that he was wrongfully suspended as an employee by the corporation, and that the individual defendants wrongfully induced the corporation to suspend him. The suit was removed to this Court by the corporate defendant and plaintiff now moves to remand. The complaint is in seven counts, and contains allegations that the defendants negligently, wrongfully and maliciously caused plaintiff to be suspended from his employment, and contains a prayer for declaratory relief, for an injunction against plaintiff's further suspension from his employment, an accounting, compensatory damages, and punitive damages. Although the amount in controversy is in excess of $3,000 and there is diversity of citizenship between plaintiff and the corporate defendant, the two individual defendants are citizens of the same state as the plaintiff. The corporation bases its removal on the ground that the joinder of the individual defendants is a sham, and on the ground that in any case there is a separate cause of action stated against the corporation which renders the entire case removable under 28 U.S.C.A. § 1441(c). The latter statute provides: “Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.” The contention that joinder of the individual defendants by the plaintiff is a sham, cannot be supported. The complaint is designed to obtain a joint judgment against all of the defendants, and at least “colorable” grounds for such a judgment have been pleaded. In Smith v. Southern Pacific Co., 9 Cir., 187 F.2d 397, 401, the court said: “But this is not the test in removal cases. The only question we have to determine is whether the complaints evidence a real intention to secure a joint judgment, and colorable ground" }, { "docid": "13823802", "title": "", "text": "MINTON, Circuit Judge. This is the second appeal to this Court on the pleadings. On the first appeal, the plaintiff appealed from an order dismissing his amended complaint for failure to allege facts entitling him to any relief. The plaintiff was the owner of a 1/32 interest in the oil, gas, gasoline, casinghead gas and petroleum distillates in, on and under certain described lands in Illinois. The defendant was assignee of a lease upon these lands which entitled it to explore and drill for oil and gas. As the question of whether the plaintiff could sue alone without joining his co-tenants was not presented to us on the first appeal, we held that the complaint stated facts sufficient to constitute a cause for relief for negligence against the defendant. It was also alleged that large quantities of oil and gas had been wasted. We held that the plaintiff, on this point-of waste, stated no cause for relief against the defendant as it was not alleged that the defendant had burned and wasted the oil and gas. 7 Cir., 145 F.2d 820. As the case went back to the District Court, we had held that the plaintiff had stated a cause for relief on the ground of negligence. The case had been briefed and argued before us as a tort action for negligence and waste. The amended complaint was capable of that construction. After the case was returned to the District Court, the plaintiff on January 16, 1945, amended the allegations of his origi nal amended complaint so as to allege that the oil and gas that were burned and wasted were burned and wasted by defendant. This amended complaint will be referred to as the second amended complaint. On February 2, 1945, the defendant answered and in paragraph 13 of its answer, it alleged that the cause of action sued upon by the plaintiff was personal, and that he could not maintain his several action, and that he must join his co-tenants. The plaintiff moved to strike this answer on the ground that it did not present a legal defense." } ]

[ { "docid": "16874736", "title": "", "text": "GOODMAN, District Judge. By these four actions, consolidated for trial, plaintiff newspaper publishers seek refund of insurance contributions and unemployment taxes collected from them, for taxable periods within the years 1937-1940, upon the compensation received by vendors of their publications on the streets of the City of San Francisco who, it is claimed by plaintiffs, were not their employees. The single issue to be here determined is the status of these vendors during that period. If their relationship to plaintiffs was one of employment within the purport of the applicable statutes, Social Security Act, Title VIII and Title IX, 42 U.S.C.A. §§ 1001-1110; Federal Insurance Contributions Act, 26 U.S.C.A. Int.Rev.Code, §§ 1400-1432; Federal Unemployment Tax Act, 26 U.S.C.A. Int.Rev.Code, §§ 1600-1611, the taxes were properly imposed; otherwise not. The Facts. Plaintiffs are owners and publishers of daily newspapers circulated primarily in San Francisco; a substantial portion of this circulation is effected through street sales by the news vendors whose status is here in issue. During all of the period here involved, (1937-1940) except from April, 1937 to August, 1937, plaintiff publishers and their vendors were governed in their relationship .by successive written contracts between the San Francisco Newspaper Publishers’ Association, as the publishers’ representatives, 'and the Newspaper and Periodical Vendors’ and Distributors’ Union No. 468 representing the vendors. (The latter is a labor union chartered by the American Federation of Labor.) Three such written contracts were negotiated during the pertinent taxable period, in 1937, 1939 and 1940. However all the contracts are admittedly similar in such of their terms as are here material. And al though there was no written agreement between publishers and vendors from April 1937 to August 1937, their relationship was akin to that established by the succeeding written contracts, except for the exercise of a greater degree of control by the publishers over activities of the vendors in matters which were thereafter settled by the terms of the negotiated contracts. The facts bearing on the relationship between publishers and vendors as fixed by contract and as appearing from their actual operations during the period here involved" } ]

[ { "docid": "13201426", "title": "", "text": "retail store in Boston, Massachusetts. Dansereau was the principal witness at the hearing on the motion to dismiss, and his testimony was substantially uncontradicted. The district court found the following facts: The defendant, Lafayette Radio Electronics Corporation, is engaged in selling at wholesale and retail electronic equipment and parts, and various related items. Its general offices and mail order department are located in Syosset, and it owns directly several retail stores in New York City. It has, at least in its own name, no place of business in Massachusetts; it employs no residents of Massachusetts; and it has no property, tangible or intangible, located in Massachusetts. The retail store of which Dansereau is manager is owned by Lafayette Radio Corporation of Massachusetts, a Massachusetts corporation wholly owned by the defendant and sharing the defendant’s directors and officers (except for the statutory clerk required to be a resident of Massachusetts). Dansereau supervises the selling and purchasing policies of the Boston store, deposits its receipts in the corporation’s account with a Boston bank, and approves bills before transmitting them to the corporation’s general offices for payment. The checks, as well as the corporation’s other books and accounts, are kept at its offices in New York and New Jersey, and all disbursements (including the salaries of Dansereau and the other employees) are made from there by checks drawn on the Boston account. Dansereau testified that he did not know who was in charge of advertising for the Boston store, but assumed that it was handled by the other officers of the corporation. Lafayette of Massachusetts is engaged in the retail sale of the same sorts of electronic products sold by the defendant, including some bearing the Lafayette “house brand”. It purchases its inventory partly from the defendant, partly from other suppliers, and pays the defendant on the same basis as the others. It maintains a repair department, and Dansereau testified that he would normally undertake to repair or replace equipment bearing the Lafayette name, wherever purchased, but that he would not feel obliged to do so except “for customer’s service and good will”." }, { "docid": "12023530", "title": "", "text": "United States to exercise its jurisdiction over one of its own nationals involves no conflict with the sovereignty of the Republic of Mexico. Bulova Watch Company, at vast expense, has built up an asset of good will in the use of its trade mark or trade name “Bulova”, that extends into if not throughout Mexico. If its watches are not actually being sold in that country now, Mexico may reasonably be expected to be within the normal expansion of its business. Bad faith on Steele’s part may clearly be inferred from his deliberate appropriation of the “Bulova” trade name. Further, one of the witnesses testified that when he complained that the price Steel was asking for a watch was too high, Steele replied, “Not for a Bulova”. Steele’s conduct involved the purchase of watch cases and dials in the United States. It not only had a substantial effect on foreign commerce, but it resulted in injury to the Bulova Watch Company within the borders of the United States. The representative of the Bulova Watch Company in the State of Texas testified as follows: “Q. Concerning the trade area there, are there a considerable number of purchases of watches as a result of the advertising from Mexican areas? A. Oh, I would say a great deal, sir. “Q. At the same time, 'have you received complaints concerning watches that are not true Bulovas, watches that have come from Mexico? A. I have had numerous complaints, and personal complaints, from practically every one of the jewelers in this particular district. “Q. What is the character of those complaints? A. Well, they claim— * * these people along the Border towns especially come into me and show me watches brought in for repair, claiming that they couldn’t repair them. Well, I would not naturally have the watchmaker to open them up, and open up some of them myself, and look at them, but by just glancing at the watch, you can tell that it is not a Bulova watch; after all, I have handled the product for a good many years. “Q. To" }, { "docid": "17615210", "title": "", "text": "CLIFFORD, District Judge. This is an action to recover taxes, penalties, and interest, assessed and collected under the Federal Unemployment Tax Act, 26 U.S.C.1946 ed. § 1600 et seq., in the amount of $231.78 for the calendar years 1947 and 1948, with statutory interest thereon. During the years in question, the plaintiff was engaged in the business of selling at retail, household merchandise, appliances, and furniture under the name of United Home Equipment Company. His store was located in Waterville, Maine. Throughout this two year period, plaintiff utilized the services of various individuals in different capacities. He engaged bookkeepers, store clerks, collector-salesmen, truck drivers, and commission agents. The basic issue in this case is whether or not the plaintiff was an employer under the Federal Unemployment Tax Act, 26 U.S.C.1946 ed. § 1607(a), which reads as follows: “(a) Employer. The term 'employer’ does not include any person unless on each of some twenty days during the taxable year, each day being in a different calendar week, the total number of individuals who were employed by him in employment for some portion of the day (whether or not at the same moment of time) was eight or more.” This issue was narrowed during the course of the trial. After evidence had been adduced in the form of oral testimony, and exhibits had been presented by both sides on the question of the status and number of people engaged by the plaintiff during the years in question, the crux of the controversy was revealed through the testimony of Mr. James J. George, a witness called by the defense. Mr. George had been a field examiner for the Maine Employment Security Commission for almost sixteen years. He conducted an extensive examination of plaintiff’s records in order to determine liability to the Federal Government and to the State of Maine for unemployment taxes for the years 1947 and 1948. He testified in detail and at great length from records and memoranda compiled by him. Mr. George impressed this Court as a man of integrity, frankness, and fairness. He volunteered the information that the plaintiff" }, { "docid": "13913334", "title": "", "text": "stores and such services are rendered in respect to merchandise already sold to retail customers by the retail stores, for we assume that it is no part of the conventional function of a wholesaler to polish, repair, deliver or replace imperfect parts of retailed merchandise at the stores, or in the homes of customers or to maintain a facility for that purpose in its warehouse. If, as the cases exemplified by the Phillips decision hold, the wholesale activity of a chain store organization is within the stream of commerce until outstate merchandise is delivered to retail stores, it would seem to be implicit, in such rationalization, that interstate transportation terminates when the goods are placed on sale in a retail establishment and sold to customers thereof. No case holds otherwise. If this view is sound, the employees of the appellant who were, during the period here involved, engaged in loading, checking and dispatching retail deliveries to customers, receiving back incompleted retail deliveries, handling the clerical work incidental thereto, and those engaged in the repair and servicing of merchandise for retail customers and in handling incidental clerical work, are engaged in a local retail activity. Employees in these categories are not within the coverage of the Fair Labor Standards Act It is not clear, however, from the record or findings, that employees engaged in the repair, polishing or refurbishing of merchandise for delivery to customers or at the homes of customers after delivery, do not also repair and polish merchandise received in the warehouse from interstate shipments before it is offered for sale at retail. If employees there are who perform both functions, each for a substantial portion of time, the judgments in their favor will be sustained. The judgment as to others appealing must be reversed. A collateral issue relative to attorney fees is also raised by the appeal. 'The court allowed attorney fees in the sum of $2,000, arriving at that amount by an allowance of $25 for each of the 80 successful plaintiffs. The appellant urges that if the judgments in favor of some are set aside that" }, { "docid": "2325536", "title": "", "text": "and renders assistance to the franchisees, including extension of credit and guaranteeing their financial obligations. This corporation also empowers wholesale grocers to franchise retail grocery stores and assists the latter in the conduct of their businesses, receiving a percentage of the gross sales of all franchised Piggly Wiggly Stores. It authorized 3. Piggly Wiggly Wholesale, Inc., which is engaged in buying and selling groceries with its principal location in South Carolina, to award franchises for the use of the Piggly Wiggly trade name. At the same time it performs various services for the franchised retail stores, for which Wholesale receives a percentage of their sales as its compensation. 4. Joseph T. Newton, Jr., whose office is in South Carolina, is alleged to be “an owner, officer, director or stockholder of some or all of the corporations defendant\" here. 5. Paradise Ice Cream Co., Inc., a South Carolina corporation with its principal place of business there, was purchased within the two years preceding the institution of this suit by defendant Wholesale and other defendants herein, and is now operated by them as a milk processing plant. 6. Greenbax Stamp Co., incorporated in South Carolina with its office at Charleston, is owned by defendant Wholesale and/or defendant Newton and it primarily engages in issuing and handling trading stamps for use by the franchised Piggly Wiggly stores. At times it has loaned money or extended credit to the defendant Paradise. 7. The remaining defendants are thirteen Piggly Wiggly retail stores located in South Carolina and franchised by Wholesale. They are alleged to own an interest in the defendant Paradise and to be representative of all the other franchisers, as a class, doing business in South Carolina. Leave is asked to join the unnamed retailers as defendants as and when they become known to the plaintiffs. Alleging that all of the defendants are “regularly engaged in interstate commerce in groceries and other items customarily sold in grocery stores including milk and milk products”, the complaint accuses them of engaging, since January 1963, in a combination and conspiracy in restraint of trade and commerce in" }, { "docid": "1732691", "title": "", "text": "for promotion or transfer shall be notified of the reasons for the denial and shall have a right to protest the denial (¶ 36). . Xerox’s “Western Region” includes the following states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Utah and Washington. . There is some dispute between the parties as to whether “Customer Representative” is technically a “sales” position. Plaintiff contends it' is, or should be so considered; defendant contends that it is not, as evidenced by the fact that compensation for the position is by straight salary, without the commissions or bonuses which are the earmarks of “sales” positions. . The proposed class defined in the original complaint was as follows: “ . . all women who are now, have been or will be employed by Xerox Corporation (Business Products Group) at its offices throughout the State of California as sales representatives, account representatives and area sales managers or who have applied for or trained for such posttions and been turned down, who have been denied, or in the future will be denied, equal employment opportunities by said defendant on the ground of their sex.” (Complaint, ¶ V). . See this court’s previous Memorandum of Decision in this action, filed May 1, 1974. . Although some of these district courts, in narrowly interpreting Rule 23, do not clearly distinguish between the last three requirements of Rule 23(a) and often collectively treat these last three requirements under the heading “adequacy of representation”, the issues raised by these cases are considered here by this court, as more closely related to the question of commonality and typicality. . See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). . It is not clear from the instant record whether plaintiff Piva was employed at both the Oakland and San Francisco Branch Offices, or just the Oakland office. . 42 U.S.C. § 2000e~5(g) provides: “If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an" }, { "docid": "6729726", "title": "", "text": "jointly organized a New York corporation originally known as the Swiss Watch Repair Parts Information Bureau, Inc., and then renamed The Watchmakers of Switzerland Information Center, Inc. FH also retained the advertising firm Foote, Cone & Belding, to assist it in this campaign. Ebauches, through Watchmakers and Foote, Cone & Belding, standardized and faeilitáted the cataloguing and ordering of repair parts. Watchmakers, which FH and Ebauches jointly created, is a New York corporation of which fifty percent of the stock is held by FH and fifty percent by Ebauches. It is a small organization having only nine employees and a budget of approximately $70,000 a year. Its General Manager is Paul Tschudin, a former employee of Ebauches. Its budget is submitted at the beginning of each year for the joint approval of FH and Ebauches, and Tschudin reports to these organizations monthly as to his actual expenditures and thus his activities. It performs advertising and promotional work in furtherance of the joint FHEbauches program, but claims that this is done on an industry-wide basis, rather than as an adjunct of FH or Ebauches. It also acts as a liaison agency in the servicing of the American market with Ebauches repair parts. It claims, however, that it performs the same function also with respect to parts not manufactured by Ebauches. It. also collects trade information and this information is relayed to FH and Ebauches. It also receives information and takes action to protect Ebauches trademarks and parts from misuse. Whether or not manufacturers of repair parts other than Ebauches derive advantages from the activities of Tschudin and Watchmakers, its activities have, from the beginning, been undertaken principally for the benefit of Ebauches. When Tschudin first came to the United States in 1946, for the purpose of setting up the repair parts program, he was an employee of Ebauches. In 1948, when Watchmakers was established, the first step in its program was the publication of a two-part catalogue codifying the identification system for all repair parts. The first part of the catalogue, published in 1948, was devoted exclusively to parts manufactured by" }, { "docid": "15205897", "title": "", "text": "intervenor agree that all of the facts stipulated were competent or material. 5. At the time of tire trial plaintiffs were granted permission to amend their complaint to set forth the total number of hours that had been worked by each subsequent to January 25, 1950, and prior to March 23, 1951. There is no dispute as to hours worked by each plaintiff, nor as to the additional amount due as wages and liquidated damages in the event plaintiffs are entitled to recover. The hours worked and the amount claimed by each plaintiff is as follows: 6. The Court finds the facts to be as stipulated in the written stipulation filed herein, and incorporates said stipulation by reference. 7. Defendant, Traders Compress Company, is a corporation engaged in the business of compressing, storing and otherwise handling raw cotton. The defendant owns and operates a plant for this purpose in Muskogee, Oklahoma. The plaintiffs, and each of them, were employed as watchmen at the defendant’s Muskogee plant. 8. The duties of each of the plaintiffs were to protect and guard from thieves, vandals, fire and other hazards raw cotton in bales stored in the plant of defendant. As a part of these duties, plaintiffs were required to.make periodic rounds of the plant and premises during periods when the same were not open for business, keeping a' lookout for any circumstance or condition which might constitute a. threat of loss or injury to the cotton stored in the plant and, incidentally, to the plant itself. At no time did any of the plaintiffs physically handle or otherwise physically work upon such cotton. 9. Throughout the period involved, defendant was engaged exclusively as a bailee for hire in compressing, storing and otherwise physically handling baled cotton for market. Baled cotton is an agricultural commodity in its raw or natural state. All services rendered and all operations conducted by the company were or are performed on account of and in accordance with instructions’ received from the owners of such cotton. Defendant did not at any time own, buy or sell cotton, or for its" }, { "docid": "1436651", "title": "", "text": "1. Plaintiffs’ ¡claim is based upon alleged violations of Sections 78j, and regulations thereunder, 78k(d), 78q(a), and regulations thereunder (specifically Rule X-17A-5), and 78t(a) of Title IS U.S.C.A., The Securities Exchange Act of 1934. The plaintiffs, R. P. Plawkins, J. K. Fraser, Rose Goodman, Raymond Allen, C. R. Sadler and C. W. Schacht, are citizens and residents of the State of Arkansas. The defendants, Merrill, Lynch, Pierce, Fenner & Beane, are partners and are engaged in the brokerage business. They are members of the New York Stock Exchange and other principal stock and commodity exchanges throughout the United States. Their principal place of business is located at 70 Pine Street, New York, New York, but maintain branch offices at Hot Springs and Little Rock in the State of Arkansas; and at all times involved herein were transacting business in the Western District of Arkansas under the supervision and control of the Arkansas State Banking Department. Defendants, as one of the major brokerage firms in the United States, have a national organization with ninety-eight branch offices and twelve wire connections or correspondents in various cities. They perform the usual functions of a brokerage firm, including the purchase and sale ¡of stocks, bonds, securities and commodities for their customers and the maintenance of a research department to correlate and distribute pertinent information as to the ¡status and ¡financial structure of corporations that have ¡stock, bonds, and securities on the market, which information is a necessary basis for advice given to prospective investors. Their compensation is derived from commissions charged to their customers for the services performed. 2. The firm of defendants was organized and has been in existence with its present general partners since August 18, 1941. At that time defendants took ¡over the facilities, accounts and business ¡of the partnership of Fenner & Beane. The latter firm, or more specifically the persons comprising it, have been engaged in the 'brokerage business for a number of years, but it is necessary to consider D. S. Waddy’s connection or status since 1932, only. Waddy, trading as D. S. Waddy & ¡Company, first became" }, { "docid": "6729728", "title": "", "text": "Ebauches. The second part to contain an identification system for repair parts made by other manufacturers was promised for a year later. Foote, Cone & Belding, in its report to Ebauches on the progress of the repair program, emphasizes the advantages it derived from the activities of Watchmakers. Tschudin’s correspondence with importers is concerned to a great extent with problems and transactions arising in connection with Ebauches parts. Finally, even to the extent that Watchmakers activities benefited manufacturers other than Ebauches, its activities were within Ebauches’ policy of leadership in this program for the benefit of the industry and the indirect benefit to itself as one principally concerned with the industry’s welfare. Realistically appraised the Information Center has no business of its own. Its principal purpose was the advancement of the program of FH and Ebauches. The watch repair program it conducted was sponsored by FH and Ebauches directly (See Exhibit B, Hoffman affidavit May 5, 1955). Their officers were in this country when it was formulated and commenced, and almost annually thereafter. The fact that this was a minor rather than major part of their business does not make the activity of Watchmakers any less their own. Undoubtedly Watchmakers did benefit to some extent the entire watchmaking industry but there seems little room for doubt that it only intentionally benefited those who conformed to the policies of FH and Ebauches. Whether the correspondence shows that the Information Center was a “policing” agency, as claimed by the government, at least it shows that it was dedicated to the policies of FH and Ebauches. Relying on Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 334-337, 45 S.Ct. 250, 69 L.Ed. 634, FH and Ebauches contend that they are not present here because it was there held that a parent’s complete commercial and financial domination of its subsidiary did not bring the parent within the jurisdiction as long as the formal separation was scrupulously maintained. As to this rule, there is no dispute. See also Echeverry v. Kellogg Switchboard & Supply Co., 2 Cir., 175 F.2d 900, 903; Spacrab, Inc.," }, { "docid": "15060149", "title": "", "text": "that is due to delay is the classic example) are not recoverable in a breach of contract suit, with exceptions not applicable here. Rar-din had no contract with T & D, and his claim against T & D is a tort claim; consequential damages are the norm in tort law. We agree with the district judge that Illinois law does not provide a tort remedy in a case such as this. We may put a simpler version of the case, as follows: A takes his watch to a retail store, B, for repair. B sends it out to a watchmaker, C. Through negligence, C damages the watch, and when it is returned to A via B it does not tell time accurately. As a result, A misses an important meeting with his creditors. They petition him into bankruptcy. He loses everything. Can he obtain damages from C, the watchmaker, for the consequences of C’s negligence? There is no issue of causation in our hypothetical case; there is none in Rardin’s. We may assume that but for C’s negligence A would have made the meeting and averted the bankruptcy, just as but for T & D’s negligence the press would have arrived in working condition. The issue is not causation; it is duty. The basic reason why no court (we believe) would impose liability on C in a suit by A is that C could not estimate the consequences of his carelessness, ignorant as he was of the circumstances of A, who is B’s customer. In principle, it is true, merely to conclude that C was negligent is to affirm that the costs of care to him were less than the costs of his carelessness to all who might be hurt by it; that, essentially, is what negligence means, in Illinois as elsewhere. See McCarty v. Pheasant Run, Inc., 826 F.2d 1554, 1556-57 (7th Cir.1987). So in a perfect world of rational actors and complete information, and with damages set equal to the plaintiff’s injury, there would be no negligence: the costs of negligence would be greater to the defendant than" }, { "docid": "22208007", "title": "", "text": "to assume that Congress certainly did not intend the Act to cover them. . These may be either the very securities sold or bought or other securities of the same issue as in Schoenbaum. . The Steele case is distinguishable, in part on this basis. There the Bulova Watch Company, a New York corporation, brought an action in the federal District Court for the Western District of Texas for trademark infringement in violation of the Lanham Trade-Mark Act of 1946, 15 U.S.C. §§ 1051-1127, against an American citizen residing in San Antonio, Texas, who conducted a watch manufacturing business in Mexico City. By its terms the Lanham Act was intended to reach “all commerce which may lawfully be regulated by Congress.” § 45. The defendant had taken advantage of the fact that the Bulova name had not been registered in Mexico. Assembling Swiss watch movements and dials and cases imported from that country and the United States, he stamped “Bulova” on his watches and sold them as such. In finding subject matter jurisdiction, the Court noted that spurious “Bulovas” had filtered back into the United States. This specific ‘effect’ of the assembly and distribution of these watches was reflected in the many’ complaints which Bulova’s Texas representatives received from retail jewelers in the Mexican border area whose customers brought in for repair defective “Bulovas” which upon inspection often turned out not to be products of that company. This effect on Bulova’s business within the United States was the “direct and foreseeable” result of defendant’s activities in Mexico, within the meaning of § 18 of the Restatement (2d). Nothing in the Bulova opinion suggests that the Court would have found subject matter jurisdiction if all that was proved was that Steele’s “Bulovas” gave the American watchmaking industry a bad name in foreign countries. A second distinction between the instant situation and Steele stems from the many delicate questions of foreign relations law that potentially may arise here, as well as the problem of judgment recognition that is discussed below, see p. 3178 infra. Prior to the Supreme Court’s decision in Steele" }, { "docid": "15060148", "title": "", "text": "order. He brought this suit against Whitacre, T & D, and others; settled with Whitacre; dismissed all the other defendants except T & D; and now appeals from the dismissal of his case against T & D for failure to state a claim. (The facts we recited are all taken from the complaint.) The only issue is whether Rardin stated a claim against T & D under Illinois law, which the parties agree controls this diversity suit. The contract indemnified Rardin against physical damage to the press caused by the negligence of Whitacre’s contractor, T & D, and the settlement with Whitacre extinguished Rardin’s claim for the cost of repairing the damage. The damages that Rardin seeks from T & D are the profits that he lost as a result of the delay in putting the press into operation in his business, a delay caused by T & D’s negligence in damaging the press. Rardin could not have sought these damages from Whitacre under the warranty, because consequential damages (of which a loss of profits that is due to delay is the classic example) are not recoverable in a breach of contract suit, with exceptions not applicable here. Rar-din had no contract with T & D, and his claim against T & D is a tort claim; consequential damages are the norm in tort law. We agree with the district judge that Illinois law does not provide a tort remedy in a case such as this. We may put a simpler version of the case, as follows: A takes his watch to a retail store, B, for repair. B sends it out to a watchmaker, C. Through negligence, C damages the watch, and when it is returned to A via B it does not tell time accurately. As a result, A misses an important meeting with his creditors. They petition him into bankruptcy. He loses everything. Can he obtain damages from C, the watchmaker, for the consequences of C’s negligence? There is no issue of causation in our hypothetical case; there is none in Rardin’s. We may assume that but" }, { "docid": "13201427", "title": "", "text": "transmitting them to the corporation’s general offices for payment. The checks, as well as the corporation’s other books and accounts, are kept at its offices in New York and New Jersey, and all disbursements (including the salaries of Dansereau and the other employees) are made from there by checks drawn on the Boston account. Dansereau testified that he did not know who was in charge of advertising for the Boston store, but assumed that it was handled by the other officers of the corporation. Lafayette of Massachusetts is engaged in the retail sale of the same sorts of electronic products sold by the defendant, including some bearing the Lafayette “house brand”. It purchases its inventory partly from the defendant, partly from other suppliers, and pays the defendant on the same basis as the others. It maintains a repair department, and Dansereau testified that he would normally undertake to repair or replace equipment bearing the Lafayette name, wherever purchased, but that he would not feel obliged to do so except “for customer’s service and good will”. The Boston store maintains a stock of the defendant’s mail-order catalogue for consultation in the store and distribution over the counter to customers. The catalogue contains an order form bearing the defendant’s New York address. Lafayette of Massachusetts does not fill mail orders, and it forwards any it may receive to the defendant’s mail-order center in New York. Dansereau receives no commission or credit for any merchandise sold by mail. - - On these facts the district court concluded that the retail business of Lafayette of Massachusetts was not controlled by the defendant, and that Lafayette of Massachusetts was not the defendant’s agent in fact, so that the defendant was not “doing business” in Massachusetts for the purposes of personal jurisdiction. It also found that in distributing the catalogues Lafayette of Massachusetts was the defendant’s agent for the solicitation of business in Massachusetts, but it ruled that under state law “mere solicitation” would not support jurisdiction unless the cause of action arose from the solicitation. I We agree with the district court. We have consistently" }, { "docid": "1204612", "title": "", "text": "Art Store, a California corporation; SBP Leasing Company, a Nevada corporation; SBP Transportation Company, Inc., a California corporation; and Promark Group West, a Nevada corporation. Collectively, debtors are one of the largest manufacturers, distributors and retailers of paint and paint related merchandise in the Western United States. Debtor SBP’s only function is being the holding company for its various subsidiaries. (Declaration of Dan Bane). Debtors are vertically integrated. With some overlap, debtors operate as follows: Debtor subsidiary Paint Co. operates retail paint and paint-related stores. Debtor subsidiary Major manufactures paint and paint-related items. Debtor subsidiary Zynolyte is the distribution subsidiary for paint manufactured by Major. Debtor subsidiary Realty owns or manages real estate holdings, including those where Paint operates the retail paint stores. (Declaration of Dan Bane). The evidence on this motion is uncontro-verted that the five debtor corporations and the nonfiled subsidiaries have always operated as a consolidated entity, with the subsidiaries and parent all being dependent on each other to make a functional whole. (Declarations of Dan Yukelson and Dan Bane). It is uncontroverted that the debtors have always operated with consolidated financial statements and have always done their reporting to the SEC on a consolidated basis. (Declarations of Dan Yukelson and Dan Bane). The evidence is also un-controverted that the five debtors have always held themselves out to creditors as being a consolidated entity, and have never given any creditor separate financial information for any single subsidiary. (Declarations of Dan Yukelson and Dan Bane). The debtors would suffer negative tax effects if the debts between/among the debtors were permanently cancelled. Cancellation of debt would affect debtors’ state net operating loss carryovers and their adjusted state tax basis in property. (Declaration of Jeffrey Tolin). Forgiveness of intercompany indebtedness could result in adverse state income tax results (apparently because forgiveness of debt is “phantom” income, though this is not stated expressly). (Declaration of Irving Thau). Similarly, dissolving the four debtor subsidiaries or merging them into the parent could result in adverse tax effects. (Declaration of Jeffrey Tolin). By previous order, the court administratively consolidated the handling of the five" }, { "docid": "16378502", "title": "", "text": "to 37,000 square feet, and on August 15,1950, entered into a written sub-lease with plaintiff for that amount of storage space. As a result of this situation, about 83,000 square feet of storage space was vacant in the warehouse for a period of about one month. After the uncertainty regarding the status of plaintiff’s lease arose during the latter part of July 1950, most of the goods stored by customers were placed in the warehouse on a week-to-week or month-to-month basis instead of on the annual basis that is customary in commercial warehouses. 33. An audit of plaintiff’s books shows that as of December 31,1950, plaintiff’s profit from the business amounted to $9,949.30, and that as of March 31, 1951, its income had exceeded operating expenses by $3,887.50. These figures do not include an item of $14,480, which is not reflected by plaintiff’s books and records and which consists of plaintiff’s estimate of the expense of liquidating the business after November 1, 1950. The estimated liquidation expenses include accounting fees, travel expenses incurred in presenting plaintiff’s claims, and the salaries of the partners during the time they worked on the liquidation of the business and assisted in the preparation of the claims presented to defendant. Also, the statement of income and expense does not include an item of $4,750, which plaintiff expended for repairs and improvements to the leased property. 34. When plaintiff entered into possession of the leased premises, it had to make certain repairs in order to render the buildings usable for operation as warehouses. The repair work involved reconditioning of the sidings and doors, patching the roof, and installing new glass in the skylights. In addition, when the Ordnance Department vacated the premises, all of the electrical wiring and transformers were removed, and it was necessary for plaintiff to employ an electrical contractor to install transformers, conduits, and wiring for lighting the buildings. Sometime after November 1, 1950, while plaintiff was engaged in evacuating stored goods from the warehouse so that the Army could move its supplies in, the post engineer of Sharpe General Depot had a" }, { "docid": "6729725", "title": "", "text": "executed an agreement for the regulation of the production, sale and export of watches, component parts and repair parts of the Swiss ( watch industry, known as the Collective Convention. This Convention is still in effect. It restricts the activities of not only the Swiss firms, but their American affiliates as well. FH, Ebauches and UBAH are empowered to suspend purchases from or sales to any firm charged with its breach and to cancel the Convention membership of any violating firm whether the violation is by the firm itself or its foreign affiliates. In 1947 in an effort to increase the sale of Swiss watches to American customers, Ebauches and FH jointly planned and have since then executed a program in the United States having two purposes: (1) to create a favorable public attitude toward Swiss watches; and, (2) to meet the greatest competitive disadvantage of these watches, the lack of easily obtainable repair parts. As a part of this pror gram, FH established a new department known as its marketing department. FH and Ebauches jointly organized a New York corporation originally known as the Swiss Watch Repair Parts Information Bureau, Inc., and then renamed The Watchmakers of Switzerland Information Center, Inc. FH also retained the advertising firm Foote, Cone & Belding, to assist it in this campaign. Ebauches, through Watchmakers and Foote, Cone & Belding, standardized and faeilitáted the cataloguing and ordering of repair parts. Watchmakers, which FH and Ebauches jointly created, is a New York corporation of which fifty percent of the stock is held by FH and fifty percent by Ebauches. It is a small organization having only nine employees and a budget of approximately $70,000 a year. Its General Manager is Paul Tschudin, a former employee of Ebauches. Its budget is submitted at the beginning of each year for the joint approval of FH and Ebauches, and Tschudin reports to these organizations monthly as to his actual expenditures and thus his activities. It performs advertising and promotional work in furtherance of the joint FHEbauches program, but claims that this is done on an industry-wide basis, rather" }, { "docid": "21972686", "title": "", "text": "to maintain separate identities. Plaintiff has cited ample authority for the proposition that a parent corporation may be subject to domestic jurisdiction through the contacts of its subsidiary, but offers no decisions to support the converse proposition that a foreign subsidiary may be subject to jurisdiction through the contacts of its local parent. It appears to the Court that the foreign subsidiary is subject to jurisdiction only in a case in which the foreign subsidiary exercises a certain degree of control over the parent corporation, and where the parent can be said to have acted as agent of the subsidiary. Thus, United States v. Watchmakers of Switzerland Information Center, 133 F.Supp. 40 (S.D.N.Y., 1955), an antitrust action brought against multiple defendants in the watchmaking industry, held a Swiss subsidiary subject to New York jurisdiction through the contacts of its New York parent corporation. The Court in Watchmakers found that both parent and subsidiary exhibited various degrees of control over each other: “The American parent may have bought the Swiss company but the Swiss company through its knowhow and its collective Swiss relationship determines what watches the American parent shall sell and at what price and terms and the American company has committed itself to acquiesce.” In this case the parent was acting at the direction of the subsidiary, and the foreign subsidiary acted in the capacity of principal directing the activities of its American parent; thus, the subsidiary was “present” in the forum for purposes of jurisdiction. The Court emphasized the principal-agent rationale in its denial of motion for rehearing (134 F.Supp. 710, 712): “Longines (American parent) having acted for Wittnauer (Swiss subsidiary) as well as the others in this regard, its acts may be regarded as those of Wittnauer.” There is no evidence in the present case that the foreign subsidiary had any contacts of its own in Louisiana or in any manner manipulated the conduct of its local parent. Indeed, all of the facts are to the contrary, that the American parent controlled the activities of its subsidiary-agent in Australia, and that the latter company had no authority" }, { "docid": "2325535", "title": "", "text": "forbidden in the antitrust laws”, the predicate of liability under the Clayton Act. Concluding that the complaint states a case upon which relief can be granted, we reverse and remand the case for trial. The South Carolina Council of Milk Producers, Incorporated, is a non-profit organization chartered by South Carolina with about 400 members who are milk producers in that State as well as in North Carolina and Georgia. The president and secretary of the Council, who are members and also milk producers, sue here as individuals and as representatives of all other members. The defendants and their connections as alleged in the complaint are as follows: 1. Commodore Points Terminal Cor~ poration, chartered in Florida with its principal place of business there, is engaged in the manufacture of store fixtures. It owns and controls 2. Piggly Wiggly Corporation, known as Trade Name Corporation, chartered by Delaware with its principal establishment in Florida and the owner of the trade name Piggly Wiggly. It grants franchises throughout the country for the use of the trade name and renders assistance to the franchisees, including extension of credit and guaranteeing their financial obligations. This corporation also empowers wholesale grocers to franchise retail grocery stores and assists the latter in the conduct of their businesses, receiving a percentage of the gross sales of all franchised Piggly Wiggly Stores. It authorized 3. Piggly Wiggly Wholesale, Inc., which is engaged in buying and selling groceries with its principal location in South Carolina, to award franchises for the use of the Piggly Wiggly trade name. At the same time it performs various services for the franchised retail stores, for which Wholesale receives a percentage of their sales as its compensation. 4. Joseph T. Newton, Jr., whose office is in South Carolina, is alleged to be “an owner, officer, director or stockholder of some or all of the corporations defendant\" here. 5. Paradise Ice Cream Co., Inc., a South Carolina corporation with its principal place of business there, was purchased within the two years preceding the institution of this suit by defendant Wholesale and other defendants herein, and" }, { "docid": "1564628", "title": "", "text": "CYNTHIA HOLCOMB HALL, Circuit Judge: Jeffery A. Jackson appeals his convictions for aiding and abetting the interstate transportation of stolen jewelry, in violation of 18 U.S.C. §§ 2 and 2314, and for conspiracy to transport stolen jewelry in interstate commerce, in violation of 18 U.S.C. §§ 371 and 2314. On appeal, Jackson contends that the district court erred by admitting evidence of a prior state conviction for theft of watches and by admitting evidence of his state parole status. The district court had jurisdiction over Jackson’s prosecution under 18 U.S.C. § 3231.- We have jurisdiction under 28 U.S.C. § 1291. Because the district court abused its discretion by admitting both pieces of evidence and these errors were not harmless, we REVERSE. FACTS At approximately 5:30 a.m., on June 15, 1999, a Bailey, Banks and Biddle jewelry store in San Antonio, Texas, was burglarized. The burglars smashed through a sliding glass door and took several valuable watches and other jewelry worth almost $700,000. The burglary, which only lasted a few minutes, was caught on a security camera. The video showed four masked individuals. No identifiable fingerprints were found in the store. Throughout the months surrounding this burglary, a number of Bailey, Banks and Biddle stores were burglarized in similar “smash and grab jobs” throughout California and Nevada. The burglaries were believed to be the work of the infamous “three-minute gang” which may have been responsible for stealing up to $80 million of jewelry in twelve states over a five-year-period. The “three-minute gang,” referred to as such because of their apparent ability to get in and out of a jewelry store in less than three minutes, was based in California. See generally Scott Marshall, “Three Minute Gang” Suspects Arrested in Las Vegas, Contra Costa Times, November 2,1999. Appellant, Jackson, a resident of San Antonio, was not a member of the gang. According to the prosecutor, Jackson was “local talent” used only in the burglary at issue. The core of the gang consisted of Jackson’s co-defendant, Clinton Randolph, Clinton’s brother Clayton and Jabby Lawson, the government’s principal witness at trial. The three all" } ]

[ { "docid": "22204623", "title": "", "text": "the adjudged sentence with the nature of the offenses of which appellant presently stands convicted, we are convinced that the inadmissible previous convictions prejudicially influenced the military judge in his determination of an appropriate sentence. Article 59(a), UCMJ. The decision of the United States Army Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Army. The Court of Military Review may reassess and approve a sentence not including a bad-conduct discharge or it may return the case to the trial forum for a rehearing as to sentence. Judge COOK and Senior Judge FERGUSON concur. . Department of the Army Form 20B (Insert Sheet to DA Form 20), Record of Court-Martial Conviction. . Paragraph 2-25, Army Regulation 27-10 (Dec. 17, 1971) directs the custodian of personnel records to reflect completion of supervisory review of a summary court-martial by placing his signature, the date of appellate or supervisory review, and certain other pertinent information in items 51 and 52 of DA Form 20B. See also paragraph 2-31, AR 27-10. . Paragraph 75b (2), Manual for Courts-Martial, United States, 1969 (Rev.), bars the admission into evidence of previous convictions “[u]nless the accused had been tried for an offense within the meaning of Article 44(b), [Uniform Code of Military Justice].” Article 44(b), 10 U.S.C. § 844(b) defines a trial as a court-martial in which a “finding of guilty has become final after review of the case has been fully completed.” (Emphasis added.) . The inference that a conviction has become final through lapse of time does not arise where, as here, a finality entry on the official record is required. Compare United States v. Wilson, 7 U.S.C.M.A. 656, 23 C.M.R. 120 (1957) and United States v. Larney, 2 U.S.C.M.A. 563, 10 C.M.R. 61 (1953) with United States v. Pope, 5 U.S.C.M.A. 29, 17 C.M.R. 29 (1954) and United States v. Engle, 3 U.S.C.M.A. 41, 11 C.M.R. 41 (1953). . While trial defense counsel did object to the admission of the DA Form 20B, he did so on grounds other than finality asserting that the" } ]

[ { "docid": "1102716", "title": "", "text": "on notice that they may offer proof to negate the government’s evidence or support the defense. See United States v. Lucas, 5 M.J. 167 (C.M.A.1978); United States v. Iturralde-Aponte, 1 M.J. 196, 198 (C.M.A.1975). Indeed, the stipulations of testimony offered by the defense later in the court-martial provide no indication that such testimony would have been elicited from these witnesses on behalf of the defense. Under these circumstances, we are reluctant to conclude the military judge erred in denying this part of the appellant’s motion. The decision of the United States Army Court of Military Review is affirmed. Judge PERRY concurs. . The appellant’s court-martial took place on April 8, 1975, and May 6, 1975. Our decision in United States v. Jackson, 3 M.J. 101 (C.M.A.1977), renders our holding in United States v. Courtney, 1 M.J. 438 (C.M.A.1976), inapplicable to the present case. . Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a). . United States v. Catlow, 23 U.S.C.M.A. 142, 146, 48 C.M.R. 758, 762 (1974); United States v. Overton, 9 U.S.C.M.A. 684, 688, 26 C.M.R. 464, 468 (1958). . In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636 (1890). . See Footnote 2 to Line 5 of Table 2-6, Army Regulation 601-210, Personnel Procurement, Regular Army Enlistment Program (Change 8, June 24, 1971). . Cf. United States v. Catlow, supra at 143, 48 C.M.R. at 759; see also United States v. Russo, 1 M.J. 134 (C.M.A.1975). . See n. 5, supra. . United States v. Blanton, 7 U.S.C.M.A. 664, 23 C.M.R. 128 (1957). . Section 1116 (Revised Statutes U.S.). . See Casella, Armed Forces Enlistment: The Use and Abuse of Contract, 39 U.Chi.L.Rev. 783, 784 (1972). . United States v. Russo, supra; United States v. Catlow, supra. . Though dicta in our opinion in United States v. Lightfoot, 4 M.J. 262, 263 n. 3 (C.M.A.1978), supports this conclusion, this precise question was not at issue in that case. In that Navy case, no regulation comparable to the Army regulation in the present case was alleged to have been violated, nor, as indicated in" }, { "docid": "22459787", "title": "", "text": "with the mission of providing defense services to soldiers. Among those involved, we are particularly impressed with the dedication and professionalism of Captain Stephen R. Kane, then Senior Defense Counsel, Hanau Field Office, United States Army Trial Defense Service. . United States v. Littrice, 3 U.S.C.M.A. 487, 491, 13 C.M.R. 43, 47 (1953). . See generally paras. 29-35, 94, 128, Manual for Courts-Martial, United States, 1969 (Revised edition). . United States v. Littrice, 3 U.S.C.M.A. at 491-93, 13 C.M.R. at 47-49. . Paragraphs 30g and 33h, Manual for Courts-Martial, United States, 1969 (Revised edition), state the general requirement that charges should be referred to \"the lowest court that has power to adjudge an appropriate and adequate sentence.” Thus General Anderson's concern with appropriate referral recommendations was a legitimate command interest. . United States v. Treakle, CM 443599 (A.C.M.R.19 Aug. 1983) (unpub.). . 10 U.S.C. 801(9) (1982). . United States v. Lynch, 9 U.S.C.M.A. 523, 26 C.M.R. 303 (1958); United States v. Daniels, 27 C.M.R. 515, opinion on reconsideration, 27 C.M.R. 527 (A.B.R.1958). . 10 U.S.C. 822, 823, 824 (1982). . See Curry v. Secretary of Army, 595 F.2d 873, 879-81 (D.C.Cir.1979); see generally Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. of the House Comm, on Armed Services, 81st Cong., 1st Sess. 606 (1949). . See United States v. Crawley, 6 M.J. 811, 813 (A.F.C.M.R.1978), pet. denied, 7 M.J. 67 (C.M.A. 1979); cf. Cooke v. Orser, 12 M.J. 335 (C.M.A. 1982) (convening authority cannot abdicate his prosecutorial responsibilities); United States v. Hardin, 7 M.J. 399 (C.M.A. 1979) (referral process is essentially prosecutorial in nature). . United States v. Crossley, 10 M.J. 376, 378 (C.M.A.1981); Brookins v. Cullins, 23 U.S.C.M.A. 216, 218, 49 C.M.R. 5, 7 (1974); United States v. Gordon, 1 U.S.C.M.A. 255, 259-62, 2 C.M.R. 161, 165-68 (1952). . United States v. Conn, 6 M.J. 351, 354 (C.M.A. 1979). . Cf. United States v. Wood, 13 U.S.C.M.A. 217, 223-24, 32 C.M.R. 217, 223-24 (1962) (circumstances did not indicate unlawful command influence where court members could not recall policy letter). . Compare United States v. Smith," }, { "docid": "22057737", "title": "", "text": "was not met at a critical point in the case against this appellant. Therefore, reversal must obtain. The decision of the United States Navy Court of Military Review is reversed. The findings and sentence are set aside. A rehearing may be ordered. . U.S.Const. amend. V. . In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); United States v. Greene, 21 U.S.C.M.A. 543, 45 C.M.R. 317 (1972); paragraph 149b (1), Manual for Courts-Martial, United States, 1969 (Revised edition). . Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). . U.S.Const. amend. V. . 8 Wigmore, Evidence § 2252 (McNaughton rev. 1961). . For a discussion of whether and when the direct testimony ought to be stricken as a remedy for such a denial of cross-examination, see McCormick, Evidence § 19 (2d ed. 1972). . See United States v. Grunden, 3 M.J. 41 (1977); United States v. Sharriberger, 1 M.J. 377 (1976); United States v. Heflin, 23 U.S.C. M.A. 505, 50 C.M.R. 644, 1 M.J. 131 (1975); United States v. Gaiter, 23 U.S.C.M.A. 438, 50 C.M.R. 397, 1 M.J. 54 (1975); United States v. Graves, 23 U.S.C.M.A. 434, 50 C.M.R. 393, 1 M.J. 50 (1975); United States v. Pinkney, 22 U.S.C.M.A. 595, 48 C.M.R. 219 (1974). . Indeed, in some rare instances, it may even be to the perceived advantage of the defense to retain the direct testimony in the record even in light of thé denial of effective cross-examination in a certain area. While the’ wishes of counsel are not determinative where evidence is per se inadmissible or where the military judge has an independent and paramount obligation to guide the proceedings toward the end of justice, see United States v. Grunden, supra, we believe tactical decisions of the sort involved here properly are made by the party subject to be aggrieved. . • ; . Article 27(a), Uniform Code of Military Justice, 10 U.S.C. § 827(a); see Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976). . Article 27(b)-(c), UCMJ, 10 U.S.C. § 827(b)-(c). . Powell" }, { "docid": "1185626", "title": "", "text": "met in the instant case. The sole inquiry by the judge of the appellant concerning the quantum portion of the agreement consists of the following: “MJ: Now, Private Goode, there is another part of this agreement pertaining to sentence. Now I don’t want to know what that portion of the agreement is, but what I’m asking you is do you know what it is? ACC: Yes, sir. MJ: Are you satisfied with it? ACC: Yes, sir.” Even after the judge announced his sentence, and examined that part of the pretrial agreement pertaining to the sentence, he did not explore the matter further with appellant or his counsel. As stated earlier, this is, in my view, inadequate compliance with the dictates of United States v. Green, supra. The findings of guilty and the sentence are set aside and a rehearing may be ordered. . United States v. Elmore, 24 U.S.C.M.A. 81, 51 C.M.R. 254, 1 M.J. 262 (1976). . We recognize that minimal compliance would be acceptable. See United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971); United States v. Kilgore, 21 U.S.C.M.A. 35, 44 C.M.R. 89 (1971); United States v. Wimberly, 20 U.S.C.M.A. 50, 42 C.M.R. 242 (1970). . United States v. Terry, 21 U.S.C.M.A. 442, 45 C.M.R. 216 (1972); United States v. Hook, 20 U.S.C.M.A. 516, 43 C.M.R. 356 (1971). . “ . . .a plea bargain inquiry is essential to satisfy the statutory mandate that a guilty plea not be accepted unless the trial judge first determines that it has been voluntarily and providently made. See Article 45(a), Uniform Code of Military Justice, 10 U.S.C. § 845(a).” United States v. Green, supra, U.S.C.M.A. at 302, C.M.R. at 13, 1 M.J. at 456. DeFORD, Judge with whom Judge DRIBBEN joins, concurring in the result: I agree with Judge Cook that the military judge failed to comply in three regards with the requirements set forth in United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976). Judge Cook’s opinion sets forth the requirements of that case. Here, the military trial judge failed (1) to" }, { "docid": "23445963", "title": "", "text": "system. See Noyd v. Bond, supra, 395 U.S. at 695 n. 7, 89 S.Ct. 1876. Whatever those limits are, as to matters reasonably comprehended within the provisions of the Uniform Code of Military Justice, we have jurisdiction to require compliance with applicable law from all courts and persons purporting to act under its authority. See Collier v. United States, 19 U.S.C.M.A. 511, 42 C.M.R. 113 (1970); Johnson v. United States, supra. This is not to say, however, that our extraordinary jurisdiction can be invoked for all of the errors that can be reviewed by way of ordinary appeal under Article 67. See United States v. Henderson, 1 M.J. 421 (1976); Michaud v. United States, 23 U.S.C.M.A. 684 (1974); Henderson v. United States, 23 U.S.C.M.A. 684 (1974); Horner v. Resor, 19 U.S.C.M.A. 285, 41 C.M.R. 285 (1970). Here, the findings of fact by the trial judge establish that the offenses of which the accused stands convicted cannot, constitutionally, be tried by court-martial. See United States v. Uhlman, 1 M.J. 419 (1976). Consequently, the conviction is void, and the accused is entitled to relief from it. Fleiner v. Koch, 19 U.S.C.M.A. 630 (1969). Article 69, UCMJ, 10 U.S.C. § 869, authorizes the Judge Advocate General to vacate a conviction in a case such as the accused’s on the ground, among others, that there is “lack of jurisdiction over the . . .offense.” Accordingly, a writ will issue to the Judge Advocate General of the Air Force directing that he vacate the accused’s conviction and provide, in accordance with the provision of Article 75, that the accused be restored to all rights, privileges and property affected by the execution of the sentence imposed by the court-martial and approved and ordered executed by the convening authority. Chief Judge FLETCHER and Judge PERRY concur. . United States v. Ware, 24 U.S.C.M.A. 102, 51 C.M.R. 275, 1 M.J. 282 (1976). . See Mangsen v. Snyder, 1 M.J. 287, 288 (1976); Priest v. Koch, 19 U.S.C.M.A. 293, 41 C.M.R. 293 (1970). . In pertinent part, Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 provides:" }, { "docid": "22752795", "title": "", "text": "members were substantially misled as to a critical factor in their sentencing deliberations. Such a suggestion ignores the unique sentencing powers of the Court of Military Review. Cf. United States v. Lenoir, 13 M.J. 452 (C.M.A.1982). We hold that the decision of the United States Army Court of Military Review is reversed as to sentence. The record of trial is returned to the Judge Advocate General of the Army for submission to that Court for reassessment of the sentence in light of this opinion. United States v. Cabebe, 13 M.J. 303, 307 (C.M.A.1982); United States v. Smith, 1 M.J. 260 (C.M.A.1976); United States v. Burney, 21 U.S.C.M.A. 71, 44 C.M.R. 125 (1971). . The defense broadly asserts that these two offenses were multiplicious. Multiplicity is a term which is barren of substantive meaning unless it is considered within a particular procedural context. For example, a multiplication of charges as a matter of pleading may infringe on the defendant’s right to a fair trial or his right to prepare a defense. See Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894); Article 36, Uniform Code of Military Justice, 10 U.S.C. § 836; para. 26b, Manual for Courts-Martial, United States, 1969 (Revised edition). Multiple convictions may raise questions concerning Double Jeopardy under the Fifth Amendment and Article 44, UCMJ, 10 U.S.C. § 844. See Notes and Comments, Twice in Jeopardy, 75 Yale L.Rev. 262, 311-13 (1965). Multiple punishments not only raise Double Jeopardy questions (Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981)), but also due process questions in the military justice system. Article 56, UCMJ, 10 U.S.C. § 856; para. 76a (5), Manual, supra. . This Court originally viewed an unreasonable multiplication of charges as error without prejudice unless an accused was sentenced separately for both offenses. See United States v. Posnick, 8 U.S.C.M.A. 201, 24 C.M.R. 11 (1957), and cases cited therein. In United States v. Drexler, 9 U.S.C.M.A. 405, 408, 26 C.M.R. 185, 188 (1958), this Court began dismissing the charges which were found unduly multiplicious as a result" }, { "docid": "23574995", "title": "", "text": "omission from the transcript renders the record nonverbatim within the meaning of Article 54, Uniform Code of Military Justice, 10 U.S.C. § 854, and that the sentence must be adjusted so as not to include a punitive discharge or confinement in excess of 6 months. See Article 19, UCMJ, 10 U.S.C. § 819. Under the circumstances of this case, we agree that corrective action is required. Article 54(a) provides: Each general court-martial shall keep a separate record of the proceedings in each case brought before it. This Court consistently has interpreted Article 54(a) to require such proceedings to be substantially verbatim. United States v. Douglas, 1 M.J. 354 (C.M.A.1976); United States v. Webb, 23 U.S.C.M.A. 333, 49 C.M.R. 667 (1975); United States v. Boxdale, 22 U.S.C.M.A. 414, 47 C.M.R. 351 (1973); United States v. Nelson, 3 U.S.C.M.A. 482, 13 C.M.R. 38 (1953); see United States v. Weber, 20 U.S.C.M.A. 82, 42 C.M.R. 274 (1970); cf. United States v. Sturdivant, 1 M.J. 256 (C.M.A.1976). Of course, “[ijnsubstantial omissions from a record of trial do not affect its characterization as a verbatim transcript. United States v. Donati, 14 U.S.C.M.A. 235, 34 C.M.R. 15 (1963); United States v. Nelson, 3 U.S.C.M.A. 482, 13 C.M.R. 38 (1953).” United States v. Boxdale, supra at 415, 47 C.M.R. at 352 (1973). Therefore, as the Government put it in its brief in this Court: [T]he key consideration in the case at bar is whether the failure to record this particular side-bar conference is a substantial omission from the record of trial which renders it non-verbatim within the meaning of Article 54, Uniform Code of Military Justice. Within these guidelines, it cannot be controverted that “[n]ot every sidebar conference must be recorded verbatim, but one involving a ruling by the judge affecting rights of the accused at trial must be fully recorded if the transcript is to be verbatim. United States v. Richardson, 21 U.S.C.M.A. 383, 45 C.M.R. 157 (1972); Manual for Courts-Martial, United States, 1969 (Rev.), paragraph 39c.” United States v. Sturdivant, supra at 257. The case at bar would seem to fall within this admonition. However," }, { "docid": "22459789", "title": "", "text": "1 M.J. 1204 (N.C.M.R.1977) (convening authority's statements to subordinates condemning recruit maltreatment could not be reasonably construed as unlawful command influence), pet. denied, 3 M.J. 165 (C.M.A.1977) with United States v. Hawthorne, 7 U.S.C.M.A. 293, 22 C.M.R. 83 (1956) (rehearing ordered when company commander based recommendation for court-martial on policy letter); United States v. Doherty, 5 U.S.C.M.A. 287, 17 C.M.R. 287 (1954) (reconsider sentence when convening authority approved bad-conduct discharge because of Navy policy); United States v. Charleson, 26 C.M.R. 630 (A.B.R.1958) (reassess sentence when company commander’s decision to recommend court-martial had been influenced by battalion executive officer). . 10 U.S.C. 907, 921, 932 (1982). . Article 32, Uniform Code of Military Justice, 10 U.S.C. 832 (1982). . 10 U.S.C. 837(a) (1982). . See United States v. Rosser, 6 M.J. 267 (C.M.A.1979). . See generally United States v. Johnson, 14 U.S.C.M.A. 548, 34 C.M.R. 328 (1964). . United States v. Rosser, 6 M.J. at 272. . United States v. Walls, 9 M.J. 88, 90-92 (C.M.A.1980). See also United States v. Hunt, 10 M.J. 222 (C.M.A.1981); United States v. Logan, 22 U.S.C.M.A. 349, 47 C.M.R. 1 (1973). . Mil.R.Evid. 404. . Mil.R.Evid. 403. . 10 U.S.C. 837(a) (1982). . See United States v. Olson, 11 U.S.C.M.A. 286, 29 C.M.R. 102 (1960); United States v. Estrada, 7 U.S.C.M.A. 635, 23 C.M.R. 99 (1957); United States v. Littrice, 3 U.S.C.M.A. 487, 13 C.M.R. 43 (1953); United States v. Olivas, 26 C.M.R. 686 (A.B.R.1958). . United States v. Cole, 17 U.S.C.M.A. 296, 297-98, 38 C.M.R. 94, 95-96 (1967); United States v. Kitchens, 12 U.S.C.M.A. 589, 693, 31 C.M.R. 175, 179 (1961); United States v. Zagar, 5 U.S.C.M.A. 410, 414, 18 C.M.R. 34, 38 (1955); United States v. Toon, 48 C.M.R. 139, 143 (A.C.M.R.1973). . See United States v. Ray, 20 U.S.C.M.A. 331, 43 C.M.R. 171 (1971); United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). . Cf. United States v. Rosser, 6 M J. at 272 (total effect of unlawful conduct considered to ascertain extent of prejudice and appearance of fairness). NAUGHTON, Judge, concurring: I agree with the majority’s analysis and disposition" }, { "docid": "1202983", "title": "", "text": "questions asked him did not influence the verdict. (3) Conceding prejudice as to the marihuana offense, I perceive no justification for the majority’s conclusion that the findings of guilty of the heroin offenses must be set aside. Even the accused has not asked for that relief. The circumstances of the commission of the two offenses were entirely different, and the accused’s credibility in regard to the heroin offense was barely mentioned in the final arguments. On the record I cannot conclude, therefore, that the two sets of transactions and the accused’s credibility in relation to them were “ ‘so interrelated as to be inseparable.’ ” United States v. Johnson, 3 M.J. 143, 151-52 (C.M.A.1977) (Cook, J., dissenting). See also, United States v. April, 7 U.S.C.M.A. 594, 23 C.M.R. 58 (1957). I believe, therefore, that the proper disposition of the case is to disapprove only the marihuana offense, and to return the record of trial to the Court of Military Review for reassessment of the sentence on the basis of the findings of guilty of the heroin offenses. In fact, United States v. Moore, 24 U.S.C.M.A. 217, 51 C.M.R. 514, 1 M.J. 390 (1976), cited in the majority opinion, upheld the findings of guilty of one offense, while setting aside those pertaining to the offense as to which the error in the admission of evidence pertained. In this connection, I note that the Court of Military Review changed the sentence approved by the convening authority by substituting a bad-conduct discharge for the dishonorable discharge and reducing the period of confinement and forfeitures from 36 months to 24 months. This action was taken by the court because it was believed to be required by United States v. Courtney, 24 U.S.C.M.A. 280, 51 C.M.R. 796, 1 M.J. 438 (1976), as the charges were alleged as violations of Article 134 rather than as violations of Article 92 of the Uniform Code of Military Justice. That construction of Courtney was disapproved in United States v. Jackson, 3 M.J. 101 (C.M.A. 1977), pet. for recon. denied, 3 M.J. 257 (C.M.A.1977). Although a preference has been expressed" }, { "docid": "22459788", "title": "", "text": "822, 823, 824 (1982). . See Curry v. Secretary of Army, 595 F.2d 873, 879-81 (D.C.Cir.1979); see generally Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. of the House Comm, on Armed Services, 81st Cong., 1st Sess. 606 (1949). . See United States v. Crawley, 6 M.J. 811, 813 (A.F.C.M.R.1978), pet. denied, 7 M.J. 67 (C.M.A. 1979); cf. Cooke v. Orser, 12 M.J. 335 (C.M.A. 1982) (convening authority cannot abdicate his prosecutorial responsibilities); United States v. Hardin, 7 M.J. 399 (C.M.A. 1979) (referral process is essentially prosecutorial in nature). . United States v. Crossley, 10 M.J. 376, 378 (C.M.A.1981); Brookins v. Cullins, 23 U.S.C.M.A. 216, 218, 49 C.M.R. 5, 7 (1974); United States v. Gordon, 1 U.S.C.M.A. 255, 259-62, 2 C.M.R. 161, 165-68 (1952). . United States v. Conn, 6 M.J. 351, 354 (C.M.A. 1979). . Cf. United States v. Wood, 13 U.S.C.M.A. 217, 223-24, 32 C.M.R. 217, 223-24 (1962) (circumstances did not indicate unlawful command influence where court members could not recall policy letter). . Compare United States v. Smith, 1 M.J. 1204 (N.C.M.R.1977) (convening authority's statements to subordinates condemning recruit maltreatment could not be reasonably construed as unlawful command influence), pet. denied, 3 M.J. 165 (C.M.A.1977) with United States v. Hawthorne, 7 U.S.C.M.A. 293, 22 C.M.R. 83 (1956) (rehearing ordered when company commander based recommendation for court-martial on policy letter); United States v. Doherty, 5 U.S.C.M.A. 287, 17 C.M.R. 287 (1954) (reconsider sentence when convening authority approved bad-conduct discharge because of Navy policy); United States v. Charleson, 26 C.M.R. 630 (A.B.R.1958) (reassess sentence when company commander’s decision to recommend court-martial had been influenced by battalion executive officer). . 10 U.S.C. 907, 921, 932 (1982). . Article 32, Uniform Code of Military Justice, 10 U.S.C. 832 (1982). . 10 U.S.C. 837(a) (1982). . See United States v. Rosser, 6 M.J. 267 (C.M.A.1979). . See generally United States v. Johnson, 14 U.S.C.M.A. 548, 34 C.M.R. 328 (1964). . United States v. Rosser, 6 M.J. at 272. . United States v. Walls, 9 M.J. 88, 90-92 (C.M.A.1980). See also United States v. Hunt, 10 M.J. 222 (C.M.A.1981);" }, { "docid": "23078972", "title": "", "text": "was promulgated to bring military practice into accord with Supreme Court and other federal decisions. Regardless of the correctness of the drafter's assessment of that law thirty-four years ago, it does not accurately reflect the practice of dismissing lesser-included offenses today. See n. 7, infra. Moreover, its concern with the tasks of reviewing authorities, although justified in an earlier era of military law, does not release this Court from its statutory responsibilities. Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867. Finally, the discussion therein does not take into consideration the ramifications such a provision might have on the substantive lawmaking power of Congress and Article 44, UCMJ, 10 U.S.C. § 844. See generally Missouri v. Hunter, 459 U.S. 359, 103 U.S. 673, 74 L.Ed.2d 535 (1983). . Hearings on H.R. 2498 Before a Subcomm. of the House Armed Services Committee, 81st Cong., 1st Sess. 1235, 1237-40 (1949), reprinted in Index and Legislative History, Uniform Code of Military Justice. . Prior to 1982, wrongful possession, use, transfer, sale, or introduction of drugs were normally punished under Article 134, UCMJ, 10 U.S.C. § 934. See Form Specifications 144-46, Appendix 6c, Table of Maximum Punishments, and para. 127c, 1969 Manual, supra; United States v. Simmons, 19 C.M.R. 640, 644 n. 1 (A.F.B.R. 1955); cf. United States v. Thurman, 7 M.J. 26 (C.M.A. 1979). . Two decisions of this Court, United States v. Fruscella, 21 U.S.C.M.A. 26, 44 C.M.R. 80 (1971) and United States v. Maginley, 13 U.S.C.M.A. 445, 32 C.M.R. 445 (1963), have been cited for the proposition that as a matter of military law, possession is not a lesser-included offense of transfer. See United States v. Long, 7 M.J. 342 (C.M.A. 1979). Those cases hold only that possession and transfer are not lesser-included offenses of sale and turn on the technical definition of sale as a transfer of title with or without possession. Today, we decide whether possession is a lesser-included offense of distribution when defined as delivery or transfer of an item to the possession of another. See para. 213g (3), 1969 Manual, supra. . In both Brown" }, { "docid": "12099105", "title": "", "text": "an appropriate convening authority for a new review and action, in which the sentence will be reassessed in light of the error. The review will be served upon counsel for the accused pursuant to United States v. Goode, 1 M.J. 3 (C.M.A.1975), and United States v..Iverson, supra. . As this trial preceded United States v. Courtney, 1 M.J. 438 (C.M.A.1976), which has only prospective application, United States v. Jackson, 3 M.J. 101 (C.M.A.1977), the approach used in United States v. Walter, 20 U.S.C.M.A. 367, 43 C.M.R. 207 (1971), controls the disposition of this case. . United States v. Walter, supra at 371, 43 C.M.R. at 211 (emphasis added). . Id. at 371-72, 43 C.M.R. at 211-12. . See n.1, supra. . The other issue granted for review is deemed to lack merit. United States v. Varacalle, 4 M.J. 181 (C.M.A.1978). FLETCHER, Chief Judge (concurring): I concur. This is an instance in which a charge brought under Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, subjects a defendant to a more serious penalty than that imposable for the same misconduct under Article 134, UCMJ, 10 U.S.C. § 934, and paragraph 127c, Manual for Courts-Martial, United States, 1969 (Revised edition). See United States v. Courtney, 1 M.J. 438, 441 n.10 (C.M.A.1976). However, this court-martial was tried prior to our decision in the above case. See United States v. Jackson, 3 M.J. 101 (C.M.A.1977). In any event, the same result would have been reached under the new law. COOK, Judge (concurring in the result): My separate opinion in United States v. Iverson, 5 M.J. 440 (C.M.A.1978), inclines me to sustain service of the post-trial review on counsel other than the military lawyer who represented the accused at trial. However, as I regard as incorrect trial counsel’s argument on general deterrence as a factor in sentence determination (see my dissent in United States v. Varacalle, 4 M.J. 181, 187 (C.M.A.1978)), I believe it appropriate to vacate the action of the reviewing authority to allow him to reconsider the sentence. I observed in my dissent in United States v. Courtney, 1 M.J." }, { "docid": "8219661", "title": "", "text": "County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Linkletter v. Walker, supra. . See United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801); Carpenter v. Wabash Railroad Company, 309 U.S. 23, 60 S.Ct. 416, 84 L.Ed. 558 (1940); United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763 (1934); Vanderbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941). . United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969); citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). . United States v. Care, supra at 542, 40 C.M.R. at 254. . See United States v. Schmeltz, 23 U.S.C.M.A. 377, 50 C.M.R. 83, 1 M.J. 8 (1975), affirmed in part and reversed in part, 24 U.S.C.M.A. 93, 51 C.M.R. 266, 1 M.J. 273 (1976), and the cases cited concerning this subject in United States v. Cordova, 4 M.J. 604 (A.C.M.R. 1977). . See United States v. Walls, 3 M.J. 882 (A.M. C.R. 1977), petition granted, 4 M.J. 196 (C.M.A. 1977). COOK, Senior Judge, dissenting: Because I believe that the Government severed an attorney-client relationship in this case, without good cause, I cannot join my fellow judges in affirming this case. I Appellant was tried by court-martial on 28 April 1976 and sentenced inter alia, to a dishonorable discharge and confinement at hard labor for 18 months. On 28 April 1976 appellant requested in writing that, in accordance with the terms of Article 70, Uniform Code of Military Justice, he be represented before this Court by appellate defense counsel appointed by The Judge Advocate General of the Army. On 10 June 1976, “pursuant to the provisions of Article . . . 70(c)(1), Uniform Code of Military Justice, . . . The Judge Advocate General . . . directed that the accused ... be represented, . by the Chiefs ... of the Defense Appellate Division and . such other appellate counsel as Pie] may detail.” On 28 October 1976, Captain Burén R. Shields, III, filed a" }, { "docid": "12142791", "title": "", "text": "a total of four factors weighing in favor of the military exercising its jurisdiction, the first, and perhaps the most significant, was that the criminal intent was formulated on-post, even though the physical transfer occurred “just outside” the installation boundary. Such reasoning is perfectly harmonious with that of the Court in their earlier case of United States v. Sexton, supra, where, in addition to the military status of the parties, the Court collaterally stressed that service connection exists when some essential acts are committed on a military installation even though others occur in the civilian community. United States v. Crapo, 18 U.S.C.M.A. 594, 40 C.M.R. 306 (1969); United States v. Regó, 19 U.S.C.M.A. 9, 41 C.M.R. 9 (1969). We conclude, therefore, that the military interest in these offenses, formulated as they were on the military installation, and linked as they were to the offenses that were both formulated and executed on the base, is pervasive. Under the circumstances, the military community had the primary, if not singular, interest in prosecuting all offenses. United States v. McCarthy. See also Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973). The next issue for resolution is whether the cocaine and hashish sales are multiplicious for sentencing purposes. At trial, the military judge, without objection, determined the offenses were separately punishable. As they were charged under Article 134, Code, supra, he calculated the maximum confinement to be 45 years on the basis of ten years for each sale of cocaine, and five years for each of the hashish sales. Manual for Courts Martial, 1969, (Rev.), paragraph 127c. On the authority of United States v. Hughes, 24 U.S.C.M.A. 169, 51 C.M.R. 388, 1 M.J. 346 (1976), and United States v. Mosely, 24 U.S.C.M.A. 173, 51 C.M.R. 392, 1 M.J. 350 (1976), and as conceded by appellate Government counsel, each of the three instances of sale of different drugs must be considered a single offense for punishment purposes. In Hughes, the Court of Military Appeals held that simultaneous possession of various controlled drugs, obviously not involving multiple victims, are not separately punishable" }, { "docid": "1143261", "title": "", "text": "that the possession and use of false ID, ration, and meal cards were plaguing the unit or adversely affecting military discipline, security, or privileges. Neither can we find any other basis for the search. Accordingly, the heroin that was found in the illegal search should not have been admitted into evidence. We turn finally to the question of the legality of the order given to appellant by his company commander to empty his pockets. Appellant maintains the order was illegal as it forced him to incriminate himself in violation of Article 31(a), UCMJ. We agree. Appellant knew that compliance with the order would incriminate him, and even though he did not specifically so state, we are convinced that that was the basis for his refusal. Therefore, “to the extent that [the order] required the appellant to participate, without his consent, in the production of evidence which was self-incriminating, [the order] was . . . violative of Article 31, Uniform Code of Military Justice.” United States v. Kinane, 24 U.S.C.M.A. 120, 51 C.M.R. 310, 1 M.J. 309 n. 1 (1976). Accord United States v. Ruiz, 23 U.S.C.M.A. 181, 48 C.M.R. 797 (1974); United States v. Pyatt, 22 U.S.C.M.A. 84, 46 C.M.R. 84 (1972). As this order violated that article, the conviction for disobedience must also fall. The findings of guilty and the sentence are set aside. The charges are dismissed. Judge FULTON and Judge FELDER concur. . This does not mean that valid inspections could not be unannounced, during nonduty hours, or at irregular intervals. For maximum effectiveness, inspections must sometimes vary from the routine. . Hunt, Inspections, 54 Mil.L.Rev. 225, 246 (1971). . See United States v. Fontennette, 3 M.J. 566 (A.C.M.R.1977), and United States v. Mitchell, 3 M.J. 641 (A.C.M.R.1977), for discussions of the present state of the law on the subject of generalized searches." }, { "docid": "12099104", "title": "", "text": "LSD by the appellant was subject to an aggregate maximum sentence of confinement of 1 year, as was his conspiracy to sell LSD. See Table of Maximum Punishments for violation of Article 81, conspiracy. In total, then, the maximum sentence to confinement facing the appellant at trial was only 2 years and 6 months. As the appellant’s approved sentence to confinement is 3 years and 6 months, prejudice is apparent. One further matter warrants our attention. Appellant correctly points out that the staff judge advocate’s post-trial review was served on substitute defense counsel, instead of his trial defense counsel who stood available to continue the representation of his client, the appellant. See United States v. Palenius, 2 M.J. 86 (C.M.A. 1977). This was error, and remedial action is necessary. United States v. Iverson, 5 M.J. 440 (C.M.A.1978). The decision of the United States Army Court of Military Review is reversed and the action of the convening authority is set aside. The record is returned to the Judge Advocate General of the Army for remand to an appropriate convening authority for a new review and action, in which the sentence will be reassessed in light of the error. The review will be served upon counsel for the accused pursuant to United States v. Goode, 1 M.J. 3 (C.M.A.1975), and United States v..Iverson, supra. . As this trial preceded United States v. Courtney, 1 M.J. 438 (C.M.A.1976), which has only prospective application, United States v. Jackson, 3 M.J. 101 (C.M.A.1977), the approach used in United States v. Walter, 20 U.S.C.M.A. 367, 43 C.M.R. 207 (1971), controls the disposition of this case. . United States v. Walter, supra at 371, 43 C.M.R. at 211 (emphasis added). . Id. at 371-72, 43 C.M.R. at 211-12. . See n.1, supra. . The other issue granted for review is deemed to lack merit. United States v. Varacalle, 4 M.J. 181 (C.M.A.1978). FLETCHER, Chief Judge (concurring): I concur. This is an instance in which a charge brought under Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, subjects a defendant to a more serious penalty" }, { "docid": "12130803", "title": "", "text": "Article 92, 10 U.S.C. § 892 or Article 134, 10 U.S.C. § 934 made applicable to cases tried after date of United States v. Courtney, 1 M.J. 438 (C.M.A. 1976). . Also, selecting the date of the convening order could lead to a situation in which for an offense committed after 1 May 1978, Newcomb could be circumvented by the simple device of referring the charges to a court-martial convened by an order issued prior to 1 May 1978. Selecting the referral date would not lead to such an extreme situation, but would nevertheless permit some unnecessary delay in compliance. . Cf. United States v. Gann, 3 U.S.C.M.A. 12, 11 C.M.R. 12 (1953). . Articles 22, 23, 24, 26 and 27, Uniform Code of Military Justice, 10 U.S.C. §§ 822, 823, 824, 826, 827. See also Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691 (1950); Runkle v. United States, 122 U.S. 543, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887); cf. Wright v. United States, 2 M.J. 9 (C.M.A. 1976); United States v. Durham, 15 U.S.C.M.A. 479, 35 C.M.R. 451 (1965); United States v. Robinson, 13 U.S.C.M.A. 674, 33 C.M.R. 206 (1963). See also W. Winthrop, Military Law and Precedents, Ch. VI (2nd Ed. 1920). . United States v. Ryan, 5 M.J. 97 (C.M.A. 1978). . Id. at 100. . Id. at 101. . Supra at 7. . 10 U.S.C. § 839(a). . Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Linkletter v. Walker 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940). . See United States v. Cannon, 5 M.J. 198 (C.M.A. 1978); United States v. Jackson, 3 M.J. 101 (C.M.A. 1977); United States v. Jordan, 1 M.J. 334 (C.M.A. 1976). The foregoing cases all dealt with rules of evidence at trial or applicable maximum punishment. As these issues involved matters at trial, their prospectivity was determined to be applicable to cases tried after the date of those opinions." }, { "docid": "21584016", "title": "", "text": "Professor Perkins indicated in 1957 that homicide occasioned by ordinary negligence was criminally punishable by statute in a minority of jurisdictions, but that it was not a crime at common law or by statute in the majority of jurisdictions. See Perkins, supra. . See United States v. Kirchner, 1 U.S.C.M.A. 477, 478, 4 C.M.R. 69, 70 (1952). See generally Zoghby, Is There a Military Common Law of Crimes? 27 Mil.L.Rev. 75, 90-91 (January 1965). . See also Manual for Courts-Martial, United States, 1969 (Revised edition): Appendix 12, Table of Commonly Included Offenses for Articles 118-19; Appendix 6c, sample specification 154; para. 213f(12); para. 127c, Table of Maximum Punishments, under Article 134; Manual for Courts-Martial, United States, 1951: Appendix 12, Table of Commonly Included Lesser Offenses for Articles 118-19; Appendix 6c, sample specification 144; para. 198b; para. 127(c), Table of Maximum Punishments for Article 134. . United States v. Romero, 1 M.J. 227 (C.M.A.1975); United States v. Bryan, 19 U.S.C.M.A. 184, 41 C.M.R. 184 (1970); United States v. Greenfeather, 13 U.S.C.M.A. 151, 32 C.M.R. 151 (1962); United States v. Russell, 3 U.S.C.M.A. 696, 14 C.M.R. 114 (1954); United States v. Kirchner, supra; United States v. Clark, 1 U.S.C.M.A. 201, 2 C.M.R. 107 (1952); United States v. Roman, 1 U.S.C.M.A. 244, 2 C.M.R. 150 (1952). . The genesis of such an interpretation of the intent of Congress in enacting these particular provisions of the UCMJ rests on the legal maxim of statutory construction: “Expressio unius est exclusio alterius.” See Sutherland, Statutes and Statutory Construction, § 47.23 (4th ed. Sands 1973). . See Index and Legislative History, Uniform Code of Military Justice (Washington, D. C. 1950), Hearings before a Subcommittee of the House Armed Services Committee on H.R. 2498, 81st Congress, 1st Session, pages 1231-32, 1240-50. . In addition, the legislative history of Article 134, UCMJ, indicates that Congress intended this codal provision to allow prosecution of the disorder offenses previously punishable under the 96th Article of War. See Index, supra at 1235-38. . See footnote 5, supra, and para. 180a, Manual for Courts-Martial, United States Army 1949; and Manual for Courts-Martial, U." }, { "docid": "1143504", "title": "", "text": "would not alter my conclusion. . “Military jurisdiction has two aspects. First, the accused must be subject to military law at the time of the commission of the offense and at the time of trial. Secondly, the offense must be committed at a time when the accused is amenable to the Uniform Code.” United States v. Schuering, 16 U.S.C.M.A. 324, 327, 36 C.M.R. 480, 483 (1966). (Emphasis supplied). . Some cases interpreting what is an action with a view to trial are United States v. Hout, 19 U.S.C.M.A. 299, 41 C.M.R. 299 (1970); United States v. Schuering, supra; United States v. Rubenstein, 7 U.S.C.M.A. 523, 22 C.M.R. 313 (1957); United States v. Sippel, 4 U.S.C.M.A. 50, 15 C.M.R. 50 (1954); United States v. Calley, 46 C.M.R. 1131 (A.C.M.R.1973); United States v. Entrekin, 42 C.M.R. 530 (A.C.M.R. 1970); United States v. Maurer, 23 C.M.R. 503 (1957); United States v. Mansberger, 20 C.M.R. 449 (A.B.R.1955). . Whether this paragraph is a proper exercise of the President’s powers under Article 36, UCMJ (see United States v. Heard, 3 M.J. 14, n. 12 (1977); United States v. Ware, 24 U.S.C.M.A. 102, 51 C.M.R. 275, 1 M.J. 282, n. 10 (1976), does not detain me as I am of the opinion that the regulation in question, to be discussed anon, is within the Secretary of the Army’s statutory power to promulgate. See footnote 7, infra. . While I am aware of the presence of the qualifier “normally” I view it as an example of normal legalistic precaution, and not as an additional condition in the regulation permitting non-compliance with the other specific provisions of the regulation. Consequently, I construe this paragraph to say that a soldier will be separated on his ETS date unless his retention is permitted by Section V. . To those who say that the Secretary of the Army is without authority to issue such a regulation, I suggest they consult 10 U.S.C. § 3012(g) and 5 U.S.C. § 301. Because I find the regulation to be complementary of and not in conflict with the statute, I find it is legal. United" }, { "docid": "12130802", "title": "", "text": "(2 specifications), and absence without leave (2 specifications), in violation of Articles 117, 128, and 86, Uniform Code of Military Justice, 10 U.S.C. §§ 917, 928 and 886 (1976). . Appellant was sentenced to a bad-conduct discharge, forfeiture of $265.00 pay per month for four months, confinement at hard labor for four months, and reduction to Private (E-l). The convening authority approved the sentence. . “To come together, meet, or assemble in a group or body.” Websters Third New International Dictionary, Unabridged. . United States v. Jordan, 1 M.J. 334 (C.M.A. 1976) : Standard for foreign searches made applicable to trials by court-martial commencing after the date of the opinion. United States v. Cannon, 5 M.J. 198 (C.M.A. 1978): Rule on admissibility of previous convictions by summary court-martial and Article 15, 10 U.S.C. § 815 punishments made applicable to cases tried after United States v. Booker, 5 M.J. 238 (C.M.A. 1977). United States v. Jackson, 3 M.J. 101 (C.M.A. 1977) : Rule on maximum penalty for drug offenses which could have been charged under either Article 92, 10 U.S.C. § 892 or Article 134, 10 U.S.C. § 934 made applicable to cases tried after date of United States v. Courtney, 1 M.J. 438 (C.M.A. 1976). . Also, selecting the date of the convening order could lead to a situation in which for an offense committed after 1 May 1978, Newcomb could be circumvented by the simple device of referring the charges to a court-martial convened by an order issued prior to 1 May 1978. Selecting the referral date would not lead to such an extreme situation, but would nevertheless permit some unnecessary delay in compliance. . Cf. United States v. Gann, 3 U.S.C.M.A. 12, 11 C.M.R. 12 (1953). . Articles 22, 23, 24, 26 and 27, Uniform Code of Military Justice, 10 U.S.C. §§ 822, 823, 824, 826, 827. See also Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691 (1950); Runkle v. United States, 122 U.S. 543, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887); cf. Wright v. United States, 2 M.J. 9 (C.M.A. 1976); United States" } ]

[ { "docid": "11109527", "title": "", "text": "the Government could not escape liability by delegating the work to an independent contractor. The Arkansas rule in this regard is stat ed in Southwestern Bell Telephone Co. v. Smith, 220 Ark. 223, 225, 247 S.W.2d 16, 17, as follows: “ ‘While it is true that as a general rule, the employer would not be liable for the negligence of an independent contractor, there are exceptions to this rule. One exception is that where the work to be performed is inherently dangerous, as here, the employer will not be permitted to escape liability for negligent injury to the property of another, by an em-' ployee, to whom the employer has delegated, or contracted, the performance of the work.’ ” See also, McKennon v. Jones, 219 Ark. 671, 244 S.W.2d 138; Kennedy v. Clayton, 216 Ark. 851, 227 S.W.2d 934; Giem v. Williams, 215 Ark. 705, 222 S.W.2d 800. Thus, under the Arkansas law the Government if a private person would be liable for the negligence, if any, on the part of the employees of NFOC, and the question is presented as to whether the Government would be liable for such alleged negligence under the Tort Claims Act. The question presents two distinct problems, i. e., (1) whether the nondelegable rule is a type of absolute liability condemned by the Dalehitec case, or (2) whether the nondelegable rule is applicable to federal tort claim actions since the negligent actor is not an employee of the United States. As to the first problem, there is little question but that the nondelegable rule is a type of absolute liability without fault, inasmuch as the contractor is held liable for the negligence of the independent contractor’s employees even though there is no fault whatsoever on the part of the contractor. However, the doctrine of respondeat superior in itself is also a type of absolute liability without fault, since the master is held liable for the negligence of his servant even though the master himself is guilty of no breach of care. See, Comment, Absolute Liability in Arkansas, 8 Ark. Law Review 83, 88. The" } ]

[ { "docid": "12458323", "title": "", "text": "an employer gains knowledge of a dangerous situation created by an independent contractor it may incur liability through its failure to halt the operation or otherwise remove the danger. Maule Industries, Inc. v. Messana, 62 So.2d 737 (Fla.1953); Breeding’s Dania Drug Co. v. Runyon, 147 Fla. 123, 2 So.2d 376 (1941); Peairs v. Florida Publishing Co., 132 So.2d 561 (Fla.App. 1961). Second, Florida recognizes the principle that one who employs an independent contractor to engage in certain types of activity has a -‘nondelegable duty” to see to it that the independent contractor carries out his task in a non-negligent manner. The employer’s liability is not absolute, nor is he held vicariously liable for the negligence of the independent contractor. Rather liability is imposed on the employer for his own failure to exercise reasonable care in a situation in which the work is sufficiently dangerous that the employer himself has a duty to third persons who may sustain injuries from the work unless proper precautions are taken in the performance thereof. The taking of such precautions is a duty which the employer may not delegate to his independent contractor so as to evade liability. Should injury occur under such circumstances of sufficiently great danger the employer is liable for the breach of his own “nondelegable duty” to take precautions against harm to third parties. Florida Power & Light Co. v. Price, 170 So.2d 293 (Fla. 1964), articulates the extent of danger required to bring the non-delegable duty into existence as “inherently or intrinsically dangerous work.” While the rule is not limited to landlord cases, see Peairs v. Florida Publishing Co., supra, it is clearly stated by the Florida Supreme Court in a recent landlord case. Mai Kai, Inc. v. Colucci, 205 So.2d 291 (Fla.1967): The duty to exercise * * * reasonable case is nondelegable in the sense that a contract for its performance by another will not necessarily eliminate an owner’s responsibility. The duty, however, remains one of due care or reasonable care in preventing or correcting an unsafe condition, as opposed to absolute liability for a contractor’s negligence. Counsel" }, { "docid": "18049755", "title": "", "text": "Court misinterpreted Nebraska law by failing to hold that NUCOR, acting as a general contractor, had a nondelegable duty to provide a safe place for a contractor’s employees to work; third, that the Court erred in failing to determine that NUCOR retained enough control to implement whatever safety precautions it deemed necessary, including compliance with OSHA regulations; fourth, that the Court erred in failing to categorize NU-COR as a “multi-employer” subject to OSHA regulations; and fifth, that the Court erred in failing to hold that the use of the crane constituted a peculiar risk or inherently dangerous activity giving rise to liability. We affirm the decision of the District Court in all respects with regard to NUCOR. Mr. Jordan contends that the District Court erred in granting summary judgment in favor of Carlisle for the following reasons: first, that the District Court failed to hold that the crane was an inherently dangerous instrument and that Car-lisle, as lessor, was subject to liability; second, that the Court failed to hold Car-lisle liable for the negligent performance of its undertaking as the crane’s lessor; third, that the Court erred in holding that the crane horn was operational and sounded before the lift that culminated in Mr. Jordan’s injuries; fourth, that the Court erred in failing to determine that Mr. Jordan was entitled to the presumption that he would have heeded a proper warning had one been given; and fifth, that the Court erred in failing to infer that Carlisle failed to produce certain evidence under its control because that evidence would have been unfavorable to Carlisle. We affirm the decision of the District Court in all respects with regard to Carlisle. I. Mr. Jordan was an employee of Lexicon, Inc., one of five independent contractors constructing an addition to the NUCOR steel plant in Norfolk, Nebraska. On the date of the accident, Lexicon employees were fabricating deflector shields at the NUCOR site. This process involved attaching pieces of steel to a crane in order to move them to another area where the shields would be assembled. The crane was being operated by" }, { "docid": "11951184", "title": "", "text": "an ex-trahazardous or inherently dangerous instrumentality. See 27 Am.Jur., Independent Contractors, Sec. 39. It may be seriously doubted whether fire can be regarded as a dangerous- instrumentality within the meaning of that rule. See Pfeiffer v. Aue, 53 Tex.Civ.App. 98, 115 S.W. 300, 301. Whether so or not, liability would not be fastened on the United States because (a) the district court has found as a fact that the evidence was insufficient to establish negligence on the part of the United States, thus negativing the breach of any duty to supervise the work because damage to others is likely to occur unless the work is properly performed; and (b) any “slight residue of theory of absolute liability without fault” was disposed of in Dalehite v. United States, supra, see opinion 346 U.S. at pages 44 and 45, 73 S.Ct. at page 972. We construe the judgment to be without prejudice as to any subsequent actions of the appellants, plaintiffs below, against J. B. Mayfield. So construed, the judgment is Affirmed. . 28 U.S.C.A. §§ 1346(b), 1402, 1504, 2110, 2401, 2402, and 2671-2680. . “Findings of Fact “(1) The evidence adduced by plaintiffs is not sufficient to show negligence on the part of the United States of America proximately causing damages to either or all of the plaintiffs. “(2) The fires in question in these actions occurring in September, 1951, in the Whitney Dam Reservoir Area, which caused damage to plaintiffs herein, were proximately caused by the negligence of the third party defendant, J. B. Mayfield. “Conclusions of Law “(1) The evidence adduced by plaintiffs in these cases is insufficient to establish negligence on the part of the United States of America. “(2) The third party defendant, J. B. Mayfield, was not an agent or employee of the United States of America during any of the times involved in these consolidated actions, but was an independent contractor. “(3) The third party defendant, J. B. Mayfield, was a ‘contractor’ within the meaning of Title 28, Section 2671, United States Code, at all times pertinent to the above consolidated cases, and was not" }, { "docid": "8372123", "title": "", "text": "the contractor was required to provide flagmen, wearing red coats and carrying a red hat or sign. When plaintiff was injured, no flagmen were working and the plaintiff, the injured employee of the contractor, was not wearing a red or orange jacket. There, the court imposed liability on the City for its failure to exercise care in a situation in which the work was sufficiently dangerous that it had a duty to others who might sustain injuries from the work unless proper precautions were taken in the performance thereof. It went on to hold that the taking of such precautions was a duty which the city could not delegate to its independent contractor so as to evade liability. Under California law, the Bureau, in this case, was under a duty to exercise reasonable care to see that proper precautions were taken by the contractor. On the record before us, no such precautions were taken. While generally speaking, the mere reservation of a right to inspect work performed by an independent contractor, including the right to stop the work if precautions are not taken, does not impose upon the government any duty of inspection or control, Roberson v. United States, 382 F.2d 714 (CA9 1967), this rule does not apply to a factual background, such as this, where the work is extra-dangerous. Although an extra-dangerous condition may have been involved in Roberson, the court refused to consider this problem for the reason that the issue had not been raised in the lower court. P. 718. Since we perceive of no significant distinction between the non-delegable duties of an owner in his contract relationship with an independent contractor, and the same duties in the relationship between an independent contractor and his subcontractor, we think the following cases are also in point on the California law to be applied to the record here presented, to wit: Kirk v. Kemp Bros., 12 Cal.App.3d 136, 90 Cal.Rptr. 553 (1970); Anderson v. L. C. Smith Construction Co., 276 Cal.App.2d 436, 81 Cal.Rptr. 73 (1969). The Bureau attempts to distinguish between the facts in Van Arsdale and" }, { "docid": "12458322", "title": "", "text": "reference to “the law of the place where the act or omission occurred,” 28 U.S.C.A. § 1346(b). See United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963); Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). It is clear the United States may not be held liable without fault. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Strangi v. United States, 211 F.2d 305 (5th Cir. 1954); Hopson v. United States, 136 F.Supp. 804 (W.D.Ark.1956). Nor do the terms of the Act permit the negligence of an independent contractor to be imputed to the United States. See United States v. Page, 350 F.2d 28 (10th Cir. 1965). But there is another possibility— despite the existence of an employer-independent contractor relationship Florida law casts directly upon the employer itself (here the United States) legal duties which its employees may have failed to discharge. Florida recognizes such duties under at least two applicable theories. First, Florida follows the rule that where an employer gains knowledge of a dangerous situation created by an independent contractor it may incur liability through its failure to halt the operation or otherwise remove the danger. Maule Industries, Inc. v. Messana, 62 So.2d 737 (Fla.1953); Breeding’s Dania Drug Co. v. Runyon, 147 Fla. 123, 2 So.2d 376 (1941); Peairs v. Florida Publishing Co., 132 So.2d 561 (Fla.App. 1961). Second, Florida recognizes the principle that one who employs an independent contractor to engage in certain types of activity has a -‘nondelegable duty” to see to it that the independent contractor carries out his task in a non-negligent manner. The employer’s liability is not absolute, nor is he held vicariously liable for the negligence of the independent contractor. Rather liability is imposed on the employer for his own failure to exercise reasonable care in a situation in which the work is sufficiently dangerous that the employer himself has a duty to third persons who may sustain injuries from the work unless proper precautions are taken in the performance thereof. The taking of such precautions" }, { "docid": "2237322", "title": "", "text": "it was to be done. Germany died before the case was decided. The directions to Corban and the others of the Downs crew were given by Downs’ foreman, Germany. It is not contended that Hoover gave any orders or suggestions directly to Corban. Two thirty-six inch Stillson wrenches were affixed to the rod. One of these was placed above and the other below a joint or coupling. With two men working on each wrench the rod was twisted in a counterclockwise direction. The coupling between the two wrenches loosened and the joint became unscrewed. This released the upper wrench and the entire force of the torque was shifted to the lower wrench. The lower wrench spun out of control and struck Corban who was one of those manning the lower wrench. He was injured and sought damages from Skelly, asserting that the use of the Stillson wrenches was negligence for which Skelly was responsible because Skelly’s pumper ordered that they be used, and that whether or not such order was given, Skelly had the right to control and owed to Corban the non-delegable duty to see that the work was done with reasonable care. Skelly asserted that its pumper, Hoover, had no authority to direct the work and did not, in fact, attempt to direct it. Skelly denied that it owed Corban any duty to see that the work was done with reasonable care and alleged that Corban’s own negligence caused the injury. The district court granted Skelly’s motion for a summary judgment and set forth its reasons for so doing in a letter opinion. The Arkansas Workmen’s Compensation Law contains a provision which provides for “statutory employers”. The provision is valid. Brothers v. Dierks Lumber Co., 217 Ark. 632, 232 S.W.2d 646. By another provision of the Arkansas statute third party tort liability is preserved. One who contracts for the services of an independent contractor has, we think, the same liabilities and immunities as does a prime contractor under the statute, and the independent contractor is in the same position as a subcontractor. 58 Am.Jur. 614, Workmen’s Compensation §" }, { "docid": "5502319", "title": "", "text": "of another AEC independent contractor, was injured as a result of negligent safety precautions. Plaintiff sued the United States, arguing that even if the Government had attempted to delegate completely to the University responsibility for safety at the site, it was nevertheless liable under the “non-delegable duty” doctrine which applies to employers of independent contractors where the work is inherently dangerous or involves a peculiar risk of injury unless special precautions are taken. The court held that under New Mexico law the United States could not be held liable to the plaintiff under the nondelegable duty doctrine. In describing the contract clause in question, the court said that it placed the responsibility for safety precautions upon the University, and gave the AEC the right to inspect and to stop work for failure to comply with safety regulations. Because of the contractual delegation of safety responsibilities to its independent contractors, the AEC apparently maintains only a very small staff to oversee this and several other contracts. 595 F.2d at 1142. Other clauses in the contract, discussed in the district court’s opinion, see Bramer v. United States, 412 F.Supp. 569 (C.D.Cal.1976), make it clear that the University, as operator of the site, had major day-to-day control over the safety aspects of the site. The AEC retained few safety responsibilities, primarily the power to inspect the site. Thus the relationships between the AEC, the “safety” independent contractor (the University and F&S), and the injured party (an employee of another independent contractor at the site) differ materially in the Bramer case and our case. The court in Bramer did not hold, and properly so, that the general “boilerplate” safety clause, even as interpreted by extrinsic evidence, was intended by itself to oblige the University, or F&S in our case, to supervise in detail the safety aspects of work performed by other AEC independent contractors at the site. In addition, the court recognized the general rule that “neither the reservation of a right to inspect and approve of the work of an independent contractor nor actual inspection, even if allegedly negligent, alone subjects the government" }, { "docid": "2237327", "title": "", "text": "recognized and applied the doctrine, “ * * * that generally the existence of the relation of independent contractor and employer excludes the relation between the parties of principal and agent or master and servant. Nevertheless, there is not necessarily such repugnance between them that both relationships could not exist at the same time in connection with different phases of the work. An employee might be an independent contractor as to certain work and a mere servant as to other work not embraced within the independent contract.” Helms v. Sinclair Refining Co, 5 Cir., 1948, 170 F.2d 289, 291. See 27 Am.Jur. 500, Independent Contractors, § 20. Such is the rule in Arkansas. See Soltz Machinery & Supply Co. v. McGehee, 208 Ark. 747, 187 S.W.2d 896; Parker Stave Co. v. Hines, supra; where it is held that it is the relationship at the time of the injury that determines the rights of the worker. We agree with the district court that if Corban was subject to the control of Skelly in the performance of the stripping job he became its employee and his right to recover was limited to workmen's compensation. Cf. Fontenot v. Stanolind Oil & Gas Co., D.C.W.D.La.1956, 144 F.Supp. 818, affirmed 5 Cir., 1957, 243 F.2d 574. The employer of an independent contractor is under a duty to exercise reasonable care to maintain its premises and equipment to be furnished by it in safe condition for use and is liable for injuries to an employee of the independent contractor resulting from its failure to do so. Sunray Oil Corporation v. Allbritton, 5 Cir., 1951, 187 F.2d 475, 188 F.2d 751, certiorari denied 342 U.S. 828, 72 S.Ct. 51, 96 L.Ed. 626. No contention is made by Corban that the premises were unsafe or that Skelly furnished or was required to furnish any of the tools or equipment for doing the work. On behalf of Corban it is urged that the work being done at the time of his injury was inherently dangerous regardless of the equipment used, and that, in such cases, the principal owes a" }, { "docid": "12800416", "title": "", "text": "subjected to the risk of personal injury because of a latent and unreasonably dangerous condition resulting from that negligence.” Id. at 22, 517 A.2d 336. In situations where “the dangerous condition is discovered before it results in injury, an action in negligence will lie for the recovery of the reasonable cost of correcting the condition.” Id. To the extent that the third-party negligence claim brought against Gutschick actually derives from plaintiffs’ claims against the Ryan Defendants, Brantly Development and Nantucket, it is necessary to consider the applicable law pertaining to Brantly Development’s and Nantucket’s liability to plaintiffs. When a developer or vendor transfers property upon which a dangerous condition exists, “the vendor’s duty to third parties and to the vendee will survive the sale and transfer if the vendor knew or had reason to know of the condition and of the risk involved, and failed to disclose that information to the vendee.” Council of Co-Owners, 308 Md. at 37, 517 A.2d 336. This tort duty remains with the vendor “only until the vendee has notice of the condition and a reasonable opportunity to take precautions against it.” Id. (footnote omitted). In Council of Co-Owners, the Court of Appeals stated that “a strong argument may be advanced in favor of the recognition of a nondelegable duty on the part of the developer with respect to unreasonably dangerous conditions created as a result of the development ....” Id. at 39, 517 A.2d 336. “Where the developer has been guilty of no independent negligence and is made to respond in damages solely by reason of vicarious liability resulting from the nondelegable nature of [his] duty, he will have a right to indemnity from an independent contractor employed by him whose negligence actually caused the breach.” Id. at 41, 517 A.2d 336. Brantly Development’s and Nantucket’s right to indemnity from Gutschick as an “independent contractor” is based upon the claim that Gutschick’s negligence caused the unreasonably dangerous condition. An engineer is negligent if he or she does not use that degree of care and skill which a reasonably competent professional person acting in similar" }, { "docid": "2237323", "title": "", "text": "to control and owed to Corban the non-delegable duty to see that the work was done with reasonable care. Skelly asserted that its pumper, Hoover, had no authority to direct the work and did not, in fact, attempt to direct it. Skelly denied that it owed Corban any duty to see that the work was done with reasonable care and alleged that Corban’s own negligence caused the injury. The district court granted Skelly’s motion for a summary judgment and set forth its reasons for so doing in a letter opinion. The Arkansas Workmen’s Compensation Law contains a provision which provides for “statutory employers”. The provision is valid. Brothers v. Dierks Lumber Co., 217 Ark. 632, 232 S.W.2d 646. By another provision of the Arkansas statute third party tort liability is preserved. One who contracts for the services of an independent contractor has, we think, the same liabilities and immunities as does a prime contractor under the statute, and the independent contractor is in the same position as a subcontractor. 58 Am.Jur. 614, Workmen’s Compensation § 57. If the principal, Skelly, was in legal effect the employer of Corban, his remedy under the Workmen’s Compensation Act was exclusive, but if Skelly was not an employer, either actual or statutory, and Corban was not an employee, Skelly was a third party under the Arkansas statute and subject to a common law tort action for negligence. Anderson v. Sanderson & Porter, 8 Cir., 1945, 146 F.2d 58; Carroll v. Lanza, D.C.W.D.Ark.1953, 116 F.Supp. 491, Lanza v. Carroll, 8 Cir., 1954, 216 F.2d 808, Carroll v. Lanza, 349 U.S. 408, 75 S.Ct. 804, 99 L.Ed. 1183; Baldwin Company v. Maner, 1954, 224 Ark. 348, 273 S.W.2d 28. Since Downs carried workmen’s compensation insurance, Skelly was not a statutory employer. It is the general rule that a prime contractor is not the employer of those hired by an independent subcontractor. Baldwin Company v. Maner, supra. And of course those hired by an independent contractor are generally not the employees of the principal. In order for Corban to recover he must show negligence of Skelly in" }, { "docid": "2237328", "title": "", "text": "the stripping job he became its employee and his right to recover was limited to workmen's compensation. Cf. Fontenot v. Stanolind Oil & Gas Co., D.C.W.D.La.1956, 144 F.Supp. 818, affirmed 5 Cir., 1957, 243 F.2d 574. The employer of an independent contractor is under a duty to exercise reasonable care to maintain its premises and equipment to be furnished by it in safe condition for use and is liable for injuries to an employee of the independent contractor resulting from its failure to do so. Sunray Oil Corporation v. Allbritton, 5 Cir., 1951, 187 F.2d 475, 188 F.2d 751, certiorari denied 342 U.S. 828, 72 S.Ct. 51, 96 L.Ed. 626. No contention is made by Corban that the premises were unsafe or that Skelly furnished or was required to furnish any of the tools or equipment for doing the work. On behalf of Corban it is urged that the work being done at the time of his injury was inherently dangerous regardless of the equipment used, and that, in such cases, the principal owes a nondelegable duty to see that the work is performed with the appropriate degree of care. It has been stated that “An employer is liable for injuries caused by the failure of an independent contractor to exercise due care with respect to the performance of work which is inherently or intrinsically dangerous. The theory upon which the liability is based is that a person who engages a contractor to do work of an inherently dangerous character remains subject to an absolute, nondelegable duty to see that it is performed with that degree of care which is appropriate to the circumstances, or, in other words, that all reasonable precautions shall be taken during its performance, to the end that third persons may be effectually protected against injury”. 27 Am.Jur. 517, Independent Contractors, § 39. Thus it appears that the rule is designed to protect third persons. As we have shown Corban was not in this class. We have seen no case where the inherently dangerous doctrine has been extended so as to permit an employee of an" }, { "docid": "151793", "title": "", "text": "that a landlord may not escape liability to his tenant for injuries resulting from negligent work because it was performed by an independent contractor. The ease cited in support of the general proposition that failure to comply with the plumbing code placed the installation in the inherently dangerous category also dealt with the claim of a disinterested third party rather than the employee of an independent contractor. City of Hazard Municipal Housing Commission v. Hinch, supra. That case involved damage from blasting which has long been considered an inherently dangerous activity. No mention was made in the Rietze opinion of any previous case involving claims by employees of an independent contractor against the owner of the premises upon which the injury took place. Absent a clear intent to overrule previous decisions such as Jennings v. Vincent’s Adm’x., supra; Nashville Bridge Co. v. Marsh, supra, and Simmons v. Clark Construction Co., supra, or explicit inclusion of such cases within the rule we think the Court of Appeals of Kentucky would limit the decision in Rietze. Where an installation or mechanism is the property of an independent contractor and is under the sole control of such contractor, a failure to comply with the standards of safety applicable to such installation or mechanism does not, of itself, render it “inherently dangerous” for the purpose of permitting an injured employee of the independent contractor to recover from the principal or the owner of the premises. Simmons v. Clark Construction Co., 426 S.W.2d 930 (Ky.1968). One other contention should be answered briefly. It is maintained that the contract provisions which gave Island Creek the right to terminate the contract with Cementation for breaches of applicable laws and regulations imposed upon Island Creek a duty, not to Cementation, but to the decedent, to take steps to obtain a correction of the safety defects which it admittedly knew existed. The District Court pointed out the similarities between the contract in this case and that in Grogan v. United States, supra, and observed that the same argument had been made in Gro-gan. We do not find any provision" }, { "docid": "12458324", "title": "", "text": "is a duty which the employer may not delegate to his independent contractor so as to evade liability. Should injury occur under such circumstances of sufficiently great danger the employer is liable for the breach of his own “nondelegable duty” to take precautions against harm to third parties. Florida Power & Light Co. v. Price, 170 So.2d 293 (Fla. 1964), articulates the extent of danger required to bring the non-delegable duty into existence as “inherently or intrinsically dangerous work.” While the rule is not limited to landlord cases, see Peairs v. Florida Publishing Co., supra, it is clearly stated by the Florida Supreme Court in a recent landlord case. Mai Kai, Inc. v. Colucci, 205 So.2d 291 (Fla.1967): The duty to exercise * * * reasonable case is nondelegable in the sense that a contract for its performance by another will not necessarily eliminate an owner’s responsibility. The duty, however, remains one of due care or reasonable care in preventing or correcting an unsafe condition, as opposed to absolute liability for a contractor’s negligence. Counsel have pointed us to no Florida cases holding that aerial spraying of herbicides or insecticides is an activity sufficiently dangerous to warrant application of the Florida nondelegable duty rule. Nor has our own research produced such a Florida case. In the leading case of S. A. Gerrard Co. v. Fricker, 42 Ariz. 503, 27 P.2d 678 (1933), the defendant hired an independent contractor to spray lettuce fields with insecticide from the air. Drifting spray damaged plaintiff’s bee colony on nearby property. Plaintiff sued the owner of the lettuce field. The Arizona Supreme Court held: The defendant was within its legal rights in depositing the insecticide on its lettuce field for the purpose of ridding it of the worms with which it was infested, and it could do this work itself or it could contract it, but, because of the very great likelihood of the poisonous dust or spray spreading to adjoining or nearby premises and damaging or destroying valuable property thereon, it could not delegate this work to an independent contractor and thus avoid liability." }, { "docid": "12800417", "title": "", "text": "of the condition and a reasonable opportunity to take precautions against it.” Id. (footnote omitted). In Council of Co-Owners, the Court of Appeals stated that “a strong argument may be advanced in favor of the recognition of a nondelegable duty on the part of the developer with respect to unreasonably dangerous conditions created as a result of the development ....” Id. at 39, 517 A.2d 336. “Where the developer has been guilty of no independent negligence and is made to respond in damages solely by reason of vicarious liability resulting from the nondelegable nature of [his] duty, he will have a right to indemnity from an independent contractor employed by him whose negligence actually caused the breach.” Id. at 41, 517 A.2d 336. Brantly Development’s and Nantucket’s right to indemnity from Gutschick as an “independent contractor” is based upon the claim that Gutschick’s negligence caused the unreasonably dangerous condition. An engineer is negligent if he or she does not use that degree of care and skill which a reasonably competent professional person acting in similar circumstances would use. MPJI § 27:7. ‘Although there may be some situations that necessitate expert testimony relative to the standard of care required,” such expert testimony as to degree of care is not needed where the average juror would know the defendant’s conduct ordinarily was not that of a prudent person. Free State Bank & Trust v. Ellis, 45 Md.App. 159, 163, 411 A.2d 1090 (1980). The applicable law pertaining to Gut-schick’s contractual duty to Brantly Development and Nantucket cannot be accurately determined here because none of the parties have submitted copies of the relevant contracts or even quoted any contractual language. The amended third-party complaint broadly alleges that “Gutschick was contractually obligated to Brantly Development and Nantucket to determine the suitable placement of improvements [homes and residential roads] in the Calvert Ridge subdivision.” To the extent that this alleged contractual duty is similar to Gutschick’s general tort duty, the question of whether Gutschick breached its contracts may be determined by applying the same legal standard as applied to Brantly Development’s and Nantucket’s negligence claim." }, { "docid": "23368838", "title": "", "text": "power for the premises, was dealing with a highly dangerous substance and, under Tennessee law, owed a duty to all persons rightfully on the premises to exercise due care for their safety commensurate with the danger involved. Further that the government knew or should have known that possible injuries might result from such electricity unless adequate precautions were taken to protect the workmen on the power lines from its dangerous propensities. Plaintiff asserts that the government failed to take such precautions and that his injuries resulted from its negligence in failing to do so. Indeed it is asserted that electricity is an imminently dangerous substance and that, under Tennessee law, the government had a nondelegable duty to take adequate precautions to safeguard the workers on the project. In opposition the government has set up certain defenses: (1) That plaintiff’s right to recovery is barred by his receipt of benefits under the Tennessee Workmen’s Compensation Statute, T.C. A. § 50-901 et seq.; (2) that plaintiff assumed the risks incident to his work; (3) that he was guilty of contributory negligence; (4) that his injuries were caused by a fellow servant which bars recovery; (5) that the companies charged with the rehabilitation work were independent contractors for whose negligent acts or omissions the government is not liable; (6) that it was the negligence of plaintiff’s foremen (employee of independent contractor) in leading-plaintiff to believe the power was off that was the proximate cause of the accident rather than negligence on the part of any employee of the government; (7) that defendant’s agents and employees were executing a regulation of the Department of the Army and therefore the case falls within the exclusion of 28 U.S.C.A. § 2680(a); (8) that under the same section the court has no jurisdiction because defendant’s agents and employees were performing a discretionary function; (9) that plaintiff has failed to show that any agent or employee of the government was negligent; and (10) assuming the electricity to be an inherently dangerous substance, no absolute liability rests upon the government. Although substantial questions are raised, under the evidence plaintiff" }, { "docid": "8177567", "title": "", "text": "status of the general contractor: whether a safety program and the government’s monitoring of it converts an independent contractor into some kind of joint venturer with the government. In view of the absence of any day-to-day control over the contractor’s operations there is no basis for finding, contrary to the contract, that the United States was in a “joint endeavor” with Day & Zimmerman. Cf. United States v. Page, 10 Cir. 1965, 350 F.2d 28, 31. Ill Still, the plaintiff contends and the district court held that the accident was caused by a breach of a duty of care owed the decedent by United States employees. Under Texas law a person having work or services performed by an independent contractor generally is not liable for injuries sustained by employees of an independent contractor. Allen v. Texas Electric Service Co., 350 S.W.2d 866, 867 (Civ.App.Tex.1961). The Texas rule of nonliability does not apply, however, where the work performed under the contract is inherently dangerous as a result of circumstances brought about by the employer or where the employer retains control over the operative details and the right to direct the manner in which employees of the independent contractor perform their work. Id. at 867-68 (citing Sun Oil Co. v. Kneten, 5 Cir. 1948, 164 F.2d 806, 809). Neither theory, however, warrants recovery in this case. Under Texas law, one engaging an independent contractor to perform inherently dangerous work has a nondelegable duty to assure that the work is performed safely. H.M.R. Construction Co. v. Wolco of Houston, Inc., 422 S.W.2d 214, 217 (Civ.App.Tex.1967); Cage v. Creed, 308 S.W.2d 78, 80 (Civ.App.Tex.1957); Randle v. Naugle, 299 S.W. 297, 300 (Civ.App.Tex.1927). Under the Texas version of the inherently dangerous activity doctrine, negligence of an independent contractor which causes an injury to a third party is imputed to the employer of the independent contractor. Id. Active negligence of the employer is immaterial assuming, of course, that the employer is not in actual control of the premises or the dangerous activity. The district court, citing United States v. Babbs, 9 Cir. 1973, 483 F.2d 308," }, { "docid": "6260616", "title": "", "text": "e.g., Restatement (Second) of Torts §§ 414, 416, 428. The district court found the United States liable on three grounds: (1) for negligently retaining Contel after it became aware of the contractor’s incompetence; (2) for breaching a nondelegable duty to take, or to ensure that the contractor takes, adequate safety precautions; and (3) for violating its duty as a statutory employer by failing to take steps to eliminate an unsafe condition of which it had actual knowledge. Concluding, as we do, that the Government is liable for breaching its nondelegable duty to ensure adequate safety precautions were taken by Contel, we do not address the other theories for liability. California has followed the Restatement (Second) of Torts by imposing a nondelegable duty of due care on the employer of an independent contractor where the work to be performed involves special dangers. See Slagle v. United States, 612 F.2d at 1162; Van Arsdale v. Hollinger, 68 Cal.2d 245, 66 Cal.Rptr. 20, 437 P.2d 508 (1968); Aceves v. Regal Pale Brewing Co., 24 Cal.3d 502, 156 Cal.Rptr. 41, 595 P.2d 619 (1979); Restatement (Second) of Torts §§ 413, 416, 427 (1965). Such work includes work dangerous in the absence of special precautions. Van Arsdale v. Hollinger, 68 Cal.2d at 253, 66 Cal.Rptr. at 25, 437 P.2d at 513. Where such danger is present in the work, the Government may be held liable for injuries to an employee of an independent contractor caused by the absence of the proper precautions, even though in its contract the Government merely reserved the rights to inspect the work performed and to stop the work if adequate precautions were not taken. Thorne v. United States, 479 F.2d 804, 809 (9th Cir. 1973); cf. McGarry v. United States, 549 F.2d 587, 590 (9th Cir. 1976) (giving deference to California law in a Nevada case and finding a government duty to become “reasonably satisfied” that safety guidelines are complied with), cert. denied, 434 U.S. 922, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977). The fact that the contract requires specified safety precautions does not negate the employer’s liability where the" }, { "docid": "2237329", "title": "", "text": "nondelegable duty to see that the work is performed with the appropriate degree of care. It has been stated that “An employer is liable for injuries caused by the failure of an independent contractor to exercise due care with respect to the performance of work which is inherently or intrinsically dangerous. The theory upon which the liability is based is that a person who engages a contractor to do work of an inherently dangerous character remains subject to an absolute, nondelegable duty to see that it is performed with that degree of care which is appropriate to the circumstances, or, in other words, that all reasonable precautions shall be taken during its performance, to the end that third persons may be effectually protected against injury”. 27 Am.Jur. 517, Independent Contractors, § 39. Thus it appears that the rule is designed to protect third persons. As we have shown Corban was not in this class. We have seen no case where the inherently dangerous doctrine has been extended so as to permit an employee of an independent contractor to recover from the principal for a breach of the non-delegable duty. We find it unnecessary to decide whether a so-called stripping job is inherently dangerous. But if it be such then Corban became, for the purpose of such work, the em ployee of Skelly. Hammond Ranch Corporation v. Dodson, 199 Ark. 846, 136 S.W.2d 484. As an employee of Skelly he would be limited to his workmen’s compensation benefits. Since we are in accord with the district court’s view that Skelly had no liability to Corban arising out of negligence, we do not reach the question of contributory negligence. The judgment of the district court is Affirmed. . “I have considered the record and your briefs upon the motion for summary judgment filed by Skelly Oil Company in the above styled matter and am of the opinion that the motion for summary judgment is -well taken and should be sustained. The Plaintiff cannot prevail upon any theory of his ease. It is my judgment, however, that J. B. Downs, Inc. was an" }, { "docid": "23116228", "title": "", "text": "court concluded that “although not necessary to the decision of the case” because of the inherently dangerous nature of the work, the Government would be liable under Utah law as expressed in Section 427 of the Restatement of Tofts for the negligence of the independent contractor. Section 427 provides that: “One who employs an independent contractor to do work which is inherently dangerous to others is subject to liability for bodily harm caused to them by the contractor’s failure to exercise reasonable care to prevent harm resulting from the dangerous character of the work.” There is no question but that Hercules was a responsible independent contractor properly selected. Also, liability under this theory is not predicated on actual control or interference exercised or reserved by the United States, and the record shows there was none. Rather, the duty imposed upon the United States, if any, stems entirely from the nature of the activity and the hazards it creates to third persons. The general law on the subject casts serious doubts as to whether the doctrine of nondelegable duty as here involved applies to injuries to employees of the independent contractor. Corban v. Skelly Oil Co., 256 F.2d 775 (5th Cir.), expressly held that it did not so apply. Similar holdings appear in Galbraith v. United States, 296 F.2d 631 (2d Cir.); Sword, Houston Fire & Cas. Ins. Co., In-tervener v. Gulf Oil Corp., 251 F.2d 829 (5th Cir.); Hurst, Employers Cas. Co., Intervener v. Gulf Oil Corp., 251 F.2d 836 (5th Cir.); Cagle v. McQueen, 200 F.2d 186 (5th Cir.). The Utah Supreme Court apparently has not been faced directly with this question, but the view taken by the courts in the above cited cases is supported by dictum in Dayton v. Free, 46 Utah 277, 148 P. 408, and nothing to the contrary has been advanced. But in any event it must be first decided whether an independent contractor is an “employee” within the meaning of 28 U.S.C.A. § 1346(b) so as to render the United States liable for the contractor’s negligence under the Federal Tort Claims Act. The" }, { "docid": "7360765", "title": "", "text": "independent contractors that clearly is not found at common law. II. FEDERAL MOTOR CARRIER REGULATIONS The appellants next contend that federal motor carrier regulations, see generally 49 C.F.R. Part 390, create a duty for Hill that extends to members of the general public. We disagree. The regulations apply to employers “engaged in a business affecting interstate commerce who own[] or lease[] a commercial motor vehicle in connection with that business, or assign[ ] employees to operate it_” 49 C.F.R. § 390.5. Hill did not “own or lease” the commercial motor vehicle in the ease. Herrington owned the truck. The regulations impose no safety inspection duties on Hill that extend to Herrington’s truck. III. NONDELEGABLE DUTY Lastly, we address the appellants’ argument that, under the common law, Hill is liable for Herrington’s actions because Herrington was performing a nondelegable duty. Idaho has used the Restatement (Second) of Torts in developing its law regarding employer liability for independent contractors’ torts. See, e.g., Peone, 744 P.2d at 106-107 (construing Restatement §§ 418, 416). Therefore, we consider the Restatement’s application to this case. The Restatement §§ 418, 416, and 427 describe exceptions to the general rule that employers are not liable for the torts of independent contractors. All three sections address the nondelegable duty employers have for work that involves unusual dangers inherent in the work. These sections do not address ordinary dangers that are not special to the work at hand, and against which any careful contractor would take precautions. Rather, they address “special dangers to others which the employer knows or has reason to know to be inherent in or normal to the work.” Id. at § 427; see also § 413 comment b, § 416 comments a, b. Therefore, the threshold question for application of these exceptions to employer nonliability is whether the work poses a peculiar risk in its normal operation that must be countered with special precautions. This question is a question of fact for the jury, unless, viewing the facts in the light most favorable to the non-moving party in a summary judgment motion, the answer is clear" } ]

[ { "docid": "23167620", "title": "", "text": "agency’s organization, general methodology, rules of procedure, substantive rules, final opinions, and statements of policy and interpretation that have been adopted by the agency. 5 U.S.C. § 552(a). The FOIA, however, specifically exempts nine categories of documents from its otherwise broad disclosure requirement. 5 U.S.C. § 552(b). Unless documents fall within one of the nine specific exemptions to the disclosure requirement of the FOIA, they are presumed to be available for public inspection. See 5 U.S.C. § 552(c) (“This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section.”) (emphasis added). Moreover, “[t]he burden of proof is on the agency to show that the documents are exempt from its duty to disclose.” Willamette Industries v. United States, 689 F.2d 865, 868 (9th Cir.1982). As the basis for its decision to withhold the disputed documents, the Forest Service relies on exemption 5, which exempts “inter-agency or intra-agency memorandums [sic] or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Pursuant to this exemption, the Forest Service invokes the “deliberative process” privilege, which shields from public disclosure confidential inter-agency memoranda on matters of law or policy. See Wolfe v. Department of Health and Human Services, 839 F.2d 768, 773 (D.C.Cir.1988) (en banc) (Wolfe). The decisive issue in this case is thus whether the remaining withheld portions of the draft Forest Plans, draft EISs, and “previews” can be considered part of the Forest Service’s “deliberative process,” thereby triggering exemption 5. B. To qualify for exemption 5 under the “deliberative process” privilege, a document must be both (1) “predecisional” or “antecedent to the adoption of agency policy” and (2) “deliberative,” meaning “it must actually be related to the process by which policies are formulated.” Jordan v. United States Department of Justice, 591 F.2d 753, 774 (D.C.Cir.1978) (Jordan). These twin requirements recognize that the underlying purpose of this privilege is to “protect[] the consultative functions of government by maintaining the confidentiality of advisory opinions, recommendations, and deliberations" } ]

[ { "docid": "7305255", "title": "", "text": "of the individual descriptions of each document and category descriptions of each applicable FOIA exemption provided in the Vaughn Index, this Court GRANTS defendant’s motion for summary judgment with regard to the adequacy of its segregability analysis. D. Exemption 5 Withholdings Exemption 5 allows an agency to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Exemption 5 covers inter-agency or intra-agency documents “routinely ... shielded from discovery in private litigation because of the government’s ‘executive privilege,’ which protects the ‘deliberative or policymaking processes’ of government agencies.” Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1194 (D.C.Cir.1991) (citations omitted). Exemption 5 covers “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Petroleum Info. Corp. v. U.S. Dep’t of the Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992). The purpose of Exemption 5 is to “encourage the ‘frank discussion of legal and policy issues’ ” within the government, Wolfe v. Dep’t of Health and Human Servs., 839 F.2d 768, 773 (D.C.Cir.1988), and “prevent injury to the quality of agency decisions,” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). Nonetheless, Exemption 5 “is to be construed as narrowly as consistent with efficient Government operations.” Petroleum Info. Corp., 976 F.2d at 1434 (citations and quotations omitted). An agency bears the burden of demonstrating that requested material is properly withheld pursuant to an applicable exemption. Access Reports, 926 F.2d at 1194; see also Students Against Genocide, 257 F.3d at 833. An agency asserting the applicability of Exemption 5 with regard to the deliberative process privilege must show that the document is both “pre-decisional” and “deliberative.” Access Reports, 926 F.2d at 1194. Further, an agency “must supply sufficient information so that the Court ‘can sensibly determine whether each invocation of deliberative process privilege ... is properly grounded.” Lipsey v. U.S. Dep’t of Justice Executive Office for United States Attorneys, 2007 WL 842956, at *3 (D.D.C." }, { "docid": "20286042", "title": "", "text": "7(E). Instead, the plaintiffs argue generally that the work-product privilege is improperly applied because the documents were not created in anticipation of litigation and that the IRS did not release factual portions of the withheld documents. Pis. Memo, at 25. The IRS claims that the memorandum sets forth “litigation guidelines for enforcing IRS summons” and that disclosure of the memorandum “could provide parties who do not wish to comply with the summons with information they could use to fight or otherwise circumvent the summons.” Def. Opp. 18-19. As such, the IRS argues that the memorandum could be used to circumvent the law. Id. at 19. This rationale also indicates that the document is used in preparation of potential litigation to enforce a summons. Thus, under either Exemption 5 or 7, the IRS has properly withheld the document and will not be forced to disclose it. 5. Documents Withheld Pursuant to Exemption 5 and Deliberative Process Privilege Plaintiffs object generally to the IRS’s application of Exemption 5 and the deliberative process privilege, without naming specific documents. Pis. Memo. 18-21. Instead, plaintiffs assert that the privilege is overly applied in this case and that “there is a good possibility that numerous documents Moss and other IRS employees working on the ‘V.I. Project’ have received qualify as the IRS’s ‘working law’ and should be disclosed as they would fall within the definition of [requested information].” Pis. Memo. 20-21. The deliberative process privilege provides protection for those documents which reflect “advisory opinions, recommendations, and deliberations that are part of a process by which Government decisions and policies are formulated.” Dep’t of the Interior v. Klamath Water Users Protective Assoc., 532 U.S. 1, 8-9, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (citing N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. at 150, 95 S.Ct. 1504). The purpose of the privilege is three-fold: first, it “protects candid discussions within an agency;” second, “it prevents public confusion from premature disclosure of agency opinions before the agency established its final policy;” and, third, “it protects the integrity of an agency’s decision,” preventing the public from judging officials based" }, { "docid": "12678622", "title": "", "text": "that they were “mistakenly redacted based on the belief that they were communications with EPA consultants,” and decided to release them in full. See EPA Reply at 3 n.2; see also 2d Armann Decl. ¶ 7 (describing the release of the four documents that were mistakenly redacted). PEER has not asserted that any other documents fail to pass over the Exemption 5 threshold. In light of the parties’ resolution of the threshold issue, there is no genuine dispute that the remaining documents withheld pursuant to Exemption 5 are intra- or inter-agency records for the purposes of Section 552(b)(5). Thus, the Court can turn to the question of whether EPA properly withheld materials under the deliberative process and attorney-client privileges incorporated by Exemption 5. 2. Deliberative Process EPA relies on the deliberative process privilege to justify the vast majority of its withholdings, but PEER makes several arguments challenging that reliance. Because the Court finds that EPA’s Vaughn indices are inadequate, it cannot reach the ques tion of whether the material has been properly withheld under the deliberative process privilege. Instead, the Court will direct EPA to revise its Vaughn indices, taking into account the issues addressed here. The deliberative process privilege “covers ‘documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.’ ” Klamath Water Users, 532 U.S. at 8, 121 S.Ct. 1060 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)). The privilege is intended “to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.” Id. at 9, 121 S.Ct. 1060 (internal citation and quotation marks omitted). The privilege “rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.” Id. at 8-9, 121 S.Ct. 1060; see also Dow Jones & Co. v. U.S. Dep’t of Justice, 917 F.2d 571, 573-74 (D.C. Cir. 1990). For the deliberative process privilege to apply, a court must first" }, { "docid": "5729898", "title": "", "text": "returns, which are specifically exempt from disclosure pursuant to ... § 6103 of the Internal Revenue Code.” Vaughn Index at 3. Therefore, summary judgment for the defendants is warranted on the exemption 3 withhold-ings. b) FOIA Exemption 5 Exemption 5 bars disclosure of “inter-agency or infra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). A document may be properly withheld under exemption 5 only if it satisfies “two conditions: its source must be a [g]overnment agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” U.S. Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). The Court of Appeals has interpreted exemption 5 “to encompass the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context, including materials which would be protected under the attorney-client privilege, the attorney work-product privilege, or the executive deliberative process privilege.” Formaldehyde Inst. v. Dep’t of Health & Human Servs., 889 F.2d 1118, 1121 (D.C.Cir.1989) (internal quotation marks omitted). The agency seeking to withhold a document bears the burden of showing that it falls within the cited exemption. Natural Res. Def. Counsel, Inc. v. Nuclear Regulatory Comm’n, 216 F.3d 1180, 1190 (D.C.Cir.2000). USCIS properly redacted the “handwritten notes” of a USCIS adjudicator from an immigration worksheet (pages 240, 634) as deliberative process material because “the notes [are pre-decisional] and reveal the adjudicator’s impressions and recommendations to a supervisor regarding agency action on” a form application ■ for immigration benefits. Vaughn Index at 10. Similar information was redacted from Form 1-130 (page 386), id. at 25, and comprised a one-page interoffice memorandum from an adjudicator that was withheld in full (page 427), id. at 26. See Abtew v. United States Dep’t of Homeland Sec., 47 F.Supp.3d 98, 103-05, 2014 WL 2620982, at *4-5 (D.D.C. June 13, 2014) (discussing the deliberate process privilege and upholding exemption 5 application" }, { "docid": "19973170", "title": "", "text": "applies to documents that are privileged in the civil discovery context, such as communications protected by the attorney-client, work product and deliberative process privileges. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149-150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). The deliberative process privilege shields predecisional confidential intraagency advisory opinions that reflect the consultative functions of the government. Id. at 150, 95 S.Ct. 1504. Without protection from disclosure, officials would be reluctant to freely exchange ideas and proposed policies. Klamath, 532 U.S. at 8-9, 121 S.Ct. 1060; Wolfe v. Dep’t of Health and Human Serv., 839 F.2d 768, 776 (D.C.Cir.1988). Thus, the privilege fosters open and frank discussion among those who contribute to and make decisions. Klamath, 532 U.S. at 8-9, 121 S.Ct. 1060. To invoke the deliberative process privilege, the agency need not identify the specific policy decision related to the document. Sears, Roebuck, 421 U.S. at 153 n. 18, 95 S.Ct. 1504. The privilege turns on the process, not the result. Documents may be privileged even though the recommendations and discussions contained in them did not result in final action or decision. See id. Consequently, even though the process does not result in a final decision, the documents generated during that process are exempt. The deliberative process privilege goes to conceptualizing and not to the gathering of facts. Documents that contain only factual material, even though used in the deliberative process, must be disclosed. Wolfe, 839 F.2d at 774 (citing Mead Data Cent., 566 F.2d at 256). However, when factual material exposes the deliberative process, it can be withheld unless the agency can redact the exempt material without revealing the thought process. Id. The exemption shields only predecisional communications that disclose the deliberative process. Sears, Roebuck, 421 U.S. at 151-52, 95 S.Ct. 1504. Postdecisional communications that explain decisions are not exempt. Id. Given this distinction, Exemption 5 permits the withholding of documents that reflect the thought process in developing law and policy, but requires disclosure of all opinions and interpretations implementing the agency’s law and policy. Id. at 152-53, 95 S.Ct. 1504. Once an agency references or" }, { "docid": "589483", "title": "", "text": "properly withheld in whole or in part. We reverse the award of summary judgment as to the documents R & HW challenge on adequacy grounds for the claim of exemption and remand to the district court for further proceedings consistent with this opinion. We affirm the district court’s award of summary judgment as to the adequacy of the Vaughn index entries for the documents R & HW does not challenge. 2. Applicability of Exemption 5 Next, R & HW contend the district court erred because the USPTO failed to show that many of the documents it claimed as exempt fell within Exemption 5. Some of the documents R & HW challenge on this basis overlap with those challenged above. As we have explained above, if the district court lacked an adequate factual basis for determining whether the exemption applied, it erred. We consider in this section only the documents R & HW challenge that do not overlap, that is, the Vaughn index is adequate to determine the application of the claimed exemption. The sole issue we now examine as to those documents is the district court’s determination that Exemption 5 applies, in whole or in part. As noted earlier, Exemption 5 protects from disclosure “inter-agency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). To qualify, a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it. Dep’t of the Interior v. Klamath Water Users Protective Ass’n (“Klamath”), 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). Among the privileges Exemption 5 encompasses are the attorney-client privilege, the attorney-work product privilege, and the deliberative process privilege. Id. at 8-9,121 S.Ct. 1060; see also N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 149-50, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). Exemption 5 is “designed to protect the quality of administrative decisionmaking" }, { "docid": "2582198", "title": "", "text": "other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). To be covered by Exemption 5, a document’s “source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Dep’t of Interior & Bureau of Indian Affairs v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). “[T]he parameters of Exemption 5 are determined by reference to the protections available to litigants in civil discovery; if material is not ‘available’ in discovery, it may be withheld from FOIA requesters.” Burka v. Dep’t of Health & Human Servs., 87 F.3d 508, 516 (D.C.Cir.1996). Thus, Exemption 5 covers “ ‘those documents, and only those documents, normally privileged in the civil discovery context,’ those privileges being: (1) the deliberative process privilege ‘(sometimes referred to as executive privilege)’; (2) the attorney-client privilege; and (3) the attorney work-product privilege.” Citizens for Responsibility & Ethics in Washington v. Nat’l Archives & Records Admin., 715 F.Supp.2d 134, 138 (D.D.C.2010) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-49, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)). The DOJ here has invoked the deliberative process privilege. This privilege protects from disclosure “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Sears, 421 U.S. at 150, 95 S.Ct. 1504 (internal quotation marks omitted). Designed to promote “candid discussion within the agency” and to improve the decisionmaking process, Formaldehyde Inst. v. Dep’t of Health & Human Servs., 889 F.2d 1118, 1122 (D.C.Cir.1989) (internal quotation marks and citation omitted), the privilege ensures that government agencies are not “forced to operate in a fishbowl,” Petroleum Info., 976 F.2d at 1434 (internal quotation marks and citation omitted). To qualify for protection under the deliberative process privilege, the agency must show that the document is both (1) predecisional and (2) deliberative. Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 39 (D.C.Cir.2002). “A document is ‘predecisional’ if it precedes, in temporal" }, { "docid": "4878176", "title": "", "text": "of our Circuit. See id. at 862. A. FOIA Exemption 5 FOIA Exemption 5 exempts from disclosure “inter-agency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). To qualify for this exemption, a document “must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds fit.” Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). Courts have incorporated certain civil discovery privileges into Exemption 5, such as attorney-work product, attorney-client privilege, and “deliberative process” privilege. See Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132; 148-49, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C.Cir.1980). Here, defendants assert Exemption 5 to withhold records relating to communications between MSHA and DOL about topics discussed in the Wagner Memorandum, see Supp. Plick Deck ¶¶ 7-9; Ex. G-l to Defs.’ Opp’n, and documents relating to the Comprehensive Request. See Declaration of Lanesia Washington Regarding Comprehensive Request (“Comprehensive Washington Deck”) ¶¶ 32, 35, Ex. 1 to Defs.’ CMR Mot., July 15, 2011. 1. Attorney-Work Product The attorney-work product doctrine protects records prepared by or for an attorney in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495, 509-10, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Coastal States Gas Corp., 617 F.2d at 864. The withheld materials listed in the Wagner Vaughn Index were prepared by the Solicitor of Labor, the top attorney at DOL, “in contemplation of litigation that would result from investigations being conducted by DOJ and MSHA into the April 5, 2010 explosion.” Plick Deck ¶¶ 22-24. As clearly stated in the Plick Declaration, the materials were withheld to protect records reflecting “mental impressions, opinions, legal theories, notes, draft documents, that was either prepared by the Solicitor of Labor, an agency attorney, or DOL officials and subordinates acting on the Solicitor’s behalf.” Id. ¶ 22; see" }, { "docid": "20207995", "title": "", "text": "the Attorney General of facts which he in turn would make available to members of Congress.” 677 F.2d 931, 936 (D.C.Cir.1982). EPIC challenges four of DHS’s withholdings of what it considers to be “purely factual” material: 1. Draft Fact Sheet on Radiation Exposure: This document, withheld in full, contains “[e]arly, internal draft versions of a fact sheet on radiation exposure and AIT.” Def.’s Ex. A to Decl. of Bert Coursey (“TES Vaughn Index”) 604-05, ECF No. 9-2. 2. Working Document on Radiation Exposure: This document, withheld in full, is an “[i]nternal working DHS document compiling estimates of radiation exposure from various types of AIT based on external, unverified data.” TES Vaughn Index 606. 3. Draft Fact Sheets on Health & Safety: These documents, withheld in full, are “working drafts of DHS ‘fact sheet[s]’ on health and safety issues related to AIT.” TSL Vaughn Index WHIF B. 4. E-mails re: Dosimeters: This email exchange, withheld in full, “contains an informal question-and-answer discussion between two government employees regarding types of dosimeters (personal radiation monitors) that could be appropriate for measuring radiation from AIT.” TSL Vaughn Index WHIF H. See PL’s Opp’n, Ex. 1 § 111(a). The Court finds that all of these materials, factual or not, were properly withheld under exemption 5, because they are all part of DHS’s deliberative process regarding the future of the AIT program. Disclosure of these deliberations would cause “injury to the quality of agency decisions” and will not be required. Sears, Roebuck & Co., 421 U.S. at 151, 95 S.Ct. 1504. EPIC quotes from DHS’s brief and the Vaughn Index to bolster its claim that these materials are ineligible because the materials are purely factual documents: “[t]he agency is withholding ‘fact sheets,’ ‘preliminary testing results,’ and information regarding types of dosimeters (personal radiation monitors that could be appropriate for measuring radiation from AIT devices.)” PL’s Opp’n 17-18 (quoting Def.’s Br. 14, 16; TSL Vaughn Index WHIF H.). EPIC’s quotation is misleading: the government’s brief actually states that DHS withheld “records related to the drafting process of ... fact sheets.” Def.’s Br. 14 (emphasis added). Elsewhere, as" }, { "docid": "944057", "title": "", "text": "9, 1991) (quoting Exxon v. DOE, 585 F.Supp. 690, 698 (D.D.C.1983)). Courts discourage disclosing rejected drafts since “such documents, if released, may actually mislead the public as to the policy of the agency.” Pies v. IRS, 668 F.2d 1350, 1353 (D.C.Cir.1981). Mere classification of a document as a “draft document” does not end the inquiry; the government must also prove that the document is pre-decisional and related to the deliberative process. Coastal States Gas, 617 F.2d at 866. The majority of the disputed documents are classified as “draft documents.” The parties specifically dispute document number 15, which was prepared in 2007 and withheld in its entirety. Vaughn 10. Document 15 is pre-decisional because it relates to a final agency decision, as it is a draft of the Office of the Inspector General’s review of the Benefit Fraud Referral Process. Id. OIG did not release this document until April 2008, and the Vaughn Index indicates that the document contains pre-decisional commentary. Id. Document 15 was also a part of the deliberative process because it was modified prior to its final release in April 2008. Id. Releasing this document would provide the public with conflicting information, and thus USCIS properly withheld it in its entirety. For the same reasons, USCIS properly withheld draft documents numbered 5, 6, 7, and 8. Vaughn 3-6. 3. Advisory Opinions Are Exempt Under FOIA Exemption 5 Documents that are specifically protected by the deliberative process privilege include “advisory opinions, recommendations and deliberations, comprising part of a process by which governmental decisions and policies are formulated.” NLRB, 421 U.S. at 150, 95 S.Ct. 1504. Thus, documents that reflect personal opinions or provide advice cannot be disclosed under FOIA Exemption 5. Exxon, 585 F.Supp. at 698; see also Mead, 566 F.2d at 256 (explaining that even a discussion regarding implementation of a policy is exempt under FOIA Exemption 5). USCIS properly withheld documents 9-13, 23, 35, 37, 41, 42, 44, 46, 52, and 53 in their entirety pursuant to Exemption 5. Vaughn 6-9, 15, 23-31. Documents 9-12, which consist of “intra-agency” memoranda regarding H-1B Anti-Fraud Initiatives, are pre-decisional and" }, { "docid": "19973171", "title": "", "text": "in them did not result in final action or decision. See id. Consequently, even though the process does not result in a final decision, the documents generated during that process are exempt. The deliberative process privilege goes to conceptualizing and not to the gathering of facts. Documents that contain only factual material, even though used in the deliberative process, must be disclosed. Wolfe, 839 F.2d at 774 (citing Mead Data Cent., 566 F.2d at 256). However, when factual material exposes the deliberative process, it can be withheld unless the agency can redact the exempt material without revealing the thought process. Id. The exemption shields only predecisional communications that disclose the deliberative process. Sears, Roebuck, 421 U.S. at 151-52, 95 S.Ct. 1504. Postdecisional communications that explain decisions are not exempt. Id. Given this distinction, Exemption 5 permits the withholding of documents that reflect the thought process in developing law and policy, but requires disclosure of all opinions and interpretations implementing the agency’s law and policy. Id. at 152-53, 95 S.Ct. 1504. Once an agency references or inserts a document into a final opinion, the document loses its exempt status unless it is exempt under another exemption. Id. at 161, 95 S.Ct. 1504. Citing Exemption 5, Treasury withheld draft versions of evidentiary memoranda, personal notes, and inter-agency documents containing pre-decisional analyses and discussions provided to OFAC in its decision-making. It claims that the information is protected by the deliberative process privilege. Cozen contends Treasury has not provided sufficient information regarding the nature of the documents and the process in which they were developed to make a determination that the privilege applies. It suggests that the Vaughn index must include the same detailed information that is ordinarily included in a privilege log in civil discovery. All the exhibits withheld under Exemption 5 are covered by Exemption 1. Because Treasury properly withheld these documents under Exemption 1, it is not necessary to analyze the applicability of Exemption 5. Nevertheless, the Vaughn index indicates that the documents or redactions do reflect the deliberation process and are covered by Exemption 5. There is ample information showing" }, { "docid": "15057912", "title": "", "text": "See Robinson v. Attorney General, 534 F.Supp.2d at 80 (citing Crooker v. BATF, 670 F.2d 1051, 1053 (D.C.Cir.1981)). The government makes no effort to do so in the Vaughn Index or accompanying affidavits. It therefore has not met its burden to justify withholding. See id. at 80 (finding agency’s “conclusory statements of the risk of harm” inadequate to justify withholding under the high 2 exemption). 2. Exemption 5 Exemption 5 of the FOIA protects from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency.” 5 U.S.C. § 552(b)(5). This provision applies to materials that normally are privileged in the civil discovery context, including those protected by the attorney work product privilege, the attorney-client privilege, and the deliberative process privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); see also FTC v. Grolier, Inc., 462 U.S. 19, 26, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983) (“The test under Exemption 5 is whether the documents would be ‘routinely’ or ‘normally’ disclosed upon a showing of relevance.”); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C.Cir.1987) (same). As with all FOIA exemptions, Exemption 5 is construed narrowly, see Department of the Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001), and the burden is on the agency invoking Exemption 5 to “establish its right to withhold evidence from the public.... [C]onclusory assertions of privilege will not suffice to carry the agency’s burden.” Senate of the Commonwealth of Puerto Rico v. United States Dep’t of Justice, 823 F.2d 574, 585 (D.C.Cir.1987) (internal quotation omitted). DHS has withheld some thirty pages of documents in whole or in part based on Exemption 5. Its withholdings under Exemption 5 fall into two general categories: (1) those that it asserts are protected by either the attorney-client or attorney work product privileges, and (2) those that it asserts are protected by the deliberative process privilege. It is not always" }, { "docid": "21621559", "title": "", "text": "108 F.Supp.2d 19, 34 (D.D.C.2000) (quoting Jones v. FBI, 41 F.3d 238, 242 (6th Cir.1994)). While there is no set form for a Vaughn index, the agency should describe the documents with “as much information as possible without thwarting the exemption’s purpose.” King, 830 F.2d at 224. Moreover, a Vaughn index must provide “a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 251 (D.C.Cir.1977). The D.C. Circuit notes three important elements for an adequate Vaughn index: (1) the index should be one document, (2) the index must adequately describe the withheld documents or deletions, (3) the index must state the particular FOIA exemption, and explain why the exemption applies. Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C.Cir.1979). Finally, the index also should note if the agency has segregated any diseloseable information from each withheld document. Vaughn, 484 F.2d at 827. 2. Legal Standard for Exemption 5 Deliberative Process Privilege Exemption 5 of FOIA protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The Supreme Court and the D.C. Circuit both have construed Exemption 5 to “exempt those documents, and only those documents, normally privileged in the civil discovery context.” Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C.Cir.1987). In other words, Exemption 5 incorporates “all civil discovery rules.” Martin, 819 F.2d at 1185. Thus, all discovery privileges that exist in civil discovery apply to Exemption 5. United States v. Weber Aircraft Corp., 465 U.S. 792, 800, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984). The three traditional privileges that courts have incorporated into Exemption 5 are the deliberative-process privilege, the attorney work-product privilege and the attorney-client privilege. Sears, 421 U.S. at 149," }, { "docid": "23651157", "title": "", "text": "the defendant on this issue. III. FOIA EXEMPTION 5 Exemption 5 allows an agency to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). “To qualify, a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standard that would govern litigation against the agency that holds it.” Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001); see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). Among the privileges incorporated by FOIA Exemption 5 are the “deliberative process” privilege and the “attorney work product” privilege. Klamath, 532 U.S. at 8, 121 S.Ct. 1060; see Loving v. Dep’t of Defense, 550 F.3d 32, 37 (D.C.Cir.2008); Baker & Hostetler LLP v. Dep’t of Commerce, 473 F.3d 312, 321 (D.C.Cir.2006). The Board claims that Exemption 5 protects from disclosure a substantial majority of the documents or portions thereof sought by GATA. (Vaughn Index Item Nos. [“Documents”] 1-6, 9-10, 11-20, and portions of Documents 7, 8, and 11.) Plaintiff challenges the Board’s reliance on Exemption 5. All of the Board’s Exemption 5 claims rest at least in part on the deliberative process privilege. The deliberative process privilege “covers ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’ ” Klamath, 532 U.S. at 8, 121 S.Ct. 1060 (quoting NLRB v. Sears, 421 U.S. at 150, 95 S.Ct. 1504.) The privilege “rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance ‘the quality of agency decisions.’ ” Id. at 8-9, 121 S.Ct. 1060 (quoting Sears, 421 U.S. at 151, 95 S.Ct." }, { "docid": "21942540", "title": "", "text": "available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Exemption 5 incorporates the privileges that the Government may claim when litigating against a private party, including the governmental attorney-client and attorney work product privileges, the presidential communications privilege, the state secrets privilege, and the deliberative process privilege. See Baker & Hostetler LLP v. Department of Commerce, 473 F.3d 312, 321 (D.C.Cir.2006). Here, the Department asserts the deliberative process privilege. This “privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.” Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1, 8-9, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). The privilege serves to preserve the “open and frank discussion” necessary for effective agency decision-making. Id. at 9, 121 S.Ct. 1060. The privilege protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (internal quotation marks omitted). As we have stated, officials “should be judged by what they decided, not for matters they considered before making up their minds.” Russell v. Department of the Air Force, 682 F.2d 1045, 1048 (D.C.Cir.1982) (brackets omitted). To qualify for the deliberative process privilege, an intra-agency memorandum must be both pre-decisional and deliberative. See Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C.Cir.1980). “A document is ‘predecisional’ if it precedes, in temporal sequence, the ‘decision’ to which it relates.” Senate of the Commonwealth of Puerto Rico v. Department of Justice, 823 F.2d 574, 585 (D.C.Cir.1987); see also Coastal States, 617 F.2d at 866 (pre-decisional documents are “generated before the adoption of an agency policy”). And a document is deliberative if it is “a part of the agency give-and-take—of the deliberative process—by which the decision itself is made.” Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C.Cir.1975); see also Coastal States, 617 F.2d at 866. In" }, { "docid": "2582197", "title": "", "text": "agency has disclosed and withheld a large number of docu ments, ... particularity may actually impede court review and undermine the functions served by a Vaughn index.” Id. In holding that the Vaughn index was adequate, the court noted the index included eleven categories of information describing the nature of each record. Id. at 146-47. Motley, 508 F.3d at 1122-23. Agencies are permitted to “submit other measures in combination with or in lieu of the index itself,” such as “supporting affidavits,” so long as the materials “ ‘give the reviewing court a reasonable basis to evaluate the claim of privilege.’” Judicial Watch, 449 F.3d at 146 (quoting Gallant v. NLRB, 26 F.3d 168, 172-73 (D.C.Cir.1994)). Ultimately, the Court’s analysis must “focus on the functions of the Vaughn index, not the length of the document descriptions.” Id. C. FOIA Exemption 5 and the Deliberative Process Privilege The only FOIA Exemption at issue in this case is Exemption 5, which protects “interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). To be covered by Exemption 5, a document’s “source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Dep’t of Interior & Bureau of Indian Affairs v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). “[T]he parameters of Exemption 5 are determined by reference to the protections available to litigants in civil discovery; if material is not ‘available’ in discovery, it may be withheld from FOIA requesters.” Burka v. Dep’t of Health & Human Servs., 87 F.3d 508, 516 (D.C.Cir.1996). Thus, Exemption 5 covers “ ‘those documents, and only those documents, normally privileged in the civil discovery context,’ those privileges being: (1) the deliberative process privilege ‘(sometimes referred to as executive privilege)’; (2) the attorney-client privilege; and (3) the attorney work-product privilege.” Citizens for Responsibility & Ethics in Washington v. Nat’l Archives &" }, { "docid": "993449", "title": "", "text": "process by which, governmental decisions and policies are formulated.” Id. at 8, 121 S.Ct. 1060 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)). For the deliberative process privilege to apply, a court must first determine whether the document is both predecisional and deliberative. Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991). “A document is predecisional if it is ‘generated before the adoption of an agency policy.’ ” McKinley v. FDIC, 744 F.Supp.2d 128, 138 (D.D.C. 2010) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). A document is “deliberative” if it “reflects the give-and-take of the consultative process,” id. (quoting Coastal States Gas, 617 F.2d at 866), “by which the decision itself is made,” Jowett, Inc. v. Dep’t of the Navy, 729 F.Supp. 871, 875 (D.D.C. 1989) (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)). The DOJ claims that Exemption 5 justifies. withholding sections of multiple After Action Review Reports. See Vaughn Index at 1-7, 10-11, 26 (dealing with exemptions from Request Nos. 2010-12533, 2011-1351, and 2012-39). After Action Review Reports are “prepared by Bureau staff, and ... reviewed by additional Bureau staff ....” See Statement Mat. Facts Not Genuine Dispute ¶ 11, ECF No. 293-1. The BOP claims that it withheld “recommendations regarding whether a use of force was appropriate and suggestions for improving uses of force for the future” from its disclosures of the reports. See, e.g., 3d Chris-tenson Decl. ¶ 17; see also Vaughn Index at 1-7, 10-11, 26 (describing portions of documents withheld in response to Request Nos. 2010-12533, 2011-1351, and 2012-39). Pinson argues that the DOJ must disclose the After Action Review Reports in their entirety here because it has previously disclosed similar documents during discovery in civil litigation. See Pin-son Decl. ¶ 6, ECF No. 314. However, FOIA exemptions are not coextensive with civil discovery standards. See Stonehill v. IRS, 558 F.3d 534, 538 (D.C. Cir. 2009). FOIA permits agencies to make “discretionary disclosures” of information that is exempt" }, { "docid": "21838273", "title": "", "text": "U.S.C. § 552(b)(5). “[T]he parameters of Exemption 5 are determined by reference to the protections available to litigants in civil discovery; if material is not ‘available’ in discovery, it may be withheld from FOIA requesters.” Burka v. United States Dep’t of Health and Human Servs., 87 F.3d 508, 516 (D.C.Cir.1996); Nat'l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 148, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). The deliberative process privilege “shields only government ‘materials which are both predecisional and deliberative.’ ” Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 616 (D.C.Cir.1997) (quoting Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 774 (D.C.Cir.1988) (en banc)). To show that a document is predecisional, the agency need not identify a specific final agency decision; it is sufficient to establish “what deliberative process is involved, and the role played by the documents at issue in the course of that process.” Heggestad v. United States Dep’t of Justice, 182 F.Supp.2d 1, 7 (D.D.C.2000) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C.Cir.1980)). A document is “deliberative” if it “makes recommendations or expresses opinions on legal or policy matters.” Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C.Cir.1975). The deliberative process privilege is thought to “prevent injury to the quality of agency decisions.” Sears, Roebuck & Co., 421 U.S. at 151, 95 S.Ct. 1504. Such protection encourages frank discussion of policy matters, prevents premature disclosure of proposed policies, and avoids public confusion that may result from disclosure of rationales that were not ultimately grounds for agency action. See, e.g., Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C.Cir.1982). Attorney work product is among the types of material that is not available in discovery. See, e.g., Fed. Trade Comm’n v. Grolier, Inc., 462 U.S. 19, 27, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983). The attorney work-product privilege protects material gathered and memo-randa prepared by an attorney in anticipation of litigation. See Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Records are properly withheld as attorney work product" }, { "docid": "2903899", "title": "", "text": "under consideration within the Executive Branch, see, e.g., Hilton Deck ¶ 184, Ex. A (Documents 37, 42, 47, 100, 110, 123); [Grafeld Deck], ¶¶ 11-17 (Document 103); [Hackett Deck], ¶¶ 12-21 (Documents 3, 4, 62, 103-104, 107-111, 130 and 243); [Stearns Deck], ¶¶ 9, 11-12 (Document 284); [Hecker Deck], ¶¶ 4-5, 11-12 (Documents 103,192). (Def. Mem. at 39-40.) Plaintiffs attack the CIA’s assertion of the deliberative process privilege on several grounds including: (1) records fail the intra- or inter-agency requirement; (2) insufficient declarations and Vaughn index to establish the privilege; and (3) unwarranted reliance on “draft status” to justify withholdings. (PI. Mem. at 34-36.) Each of Plaintiffs’ arguments will be discussed in turn. 1. Intra- or Inter-agency Requirement Plaintiffs argue that some of the documents fail the intra- or inter-agency requirement because the documents either were sent to or sent from a member of Congress. Specifically, Plaintiffs assert that documents 66, 79, and 96 do not fall within the requirements of Exemption 5 because “members of Congress are not within the definition of,‘agency.’” (PI. Mem. at 34.) Although some of Plaintiffs’ arguments are meritorious, any documents that fail to meet the requirements of Exemption 5 are nonetheless properly withheld under Exemptions 1 or 3. First, Document 79 is a letter from a member of Congress to the DNI. (Hilton Decl., Ex. A.) It is clear from the Vaughn index description that Exemption 5 is invoked not to withhold the letter itself (which is withheld pursuant to Exemptions 1 and 3), but to withhold the handwritten notes from the reviewing official who was commenting on the letter received from the member of Congress. Such analysis clearly “‘[reflects] advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated,’ ” and thus is properly withheld. N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966)). It is unclear from the declarations and Vaughn index entries, however, why the portions withheld in Documents 66 and" }, { "docid": "2903900", "title": "", "text": "at 34.) Although some of Plaintiffs’ arguments are meritorious, any documents that fail to meet the requirements of Exemption 5 are nonetheless properly withheld under Exemptions 1 or 3. First, Document 79 is a letter from a member of Congress to the DNI. (Hilton Decl., Ex. A.) It is clear from the Vaughn index description that Exemption 5 is invoked not to withhold the letter itself (which is withheld pursuant to Exemptions 1 and 3), but to withhold the handwritten notes from the reviewing official who was commenting on the letter received from the member of Congress. Such analysis clearly “‘[reflects] advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated,’ ” and thus is properly withheld. N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966)). It is unclear from the declarations and Vaughn index entries, however, why the portions withheld in Documents 66 and 96 satisfy the requirements of Exemption 5. With respect to these Documents, while the information might otherwise fit the deliberative process privilege, both documents do not satisfy the inter-agency requirement. (See Document 66 (from foreign liaison to CIA attorney); Document 96 (from CIA Executive Director to Member of Congress).) Exemption 5, standing alone, could not protect the disclosure of these deliberations. See Dow Jones & Co. v. U.S. Dep’t of Justice, 917 F.2d 571, 574 (D.C.Cir.1990) (concluding that Exemption 5 did not cover communications between executive branch and Congress). Nevertheless, the contents of the two contested Documents are properly withheld pursuant to Exemptions 1 and 3. 2. Insufficient Declarations Plaintiffs maintain that both the Vaughn index descriptions and declarations in support of the CIA’s use of Exemption 5 “do not adequately demonstrate that the records are ‘deliberative’ because they fail to provide meaningful identification of ‘the deliberative process involved and the role played by each document in the course of that process.’ ” (PI. Mem. at 35 (quoting Greenberg v. U.S. Dep’t of Treasury, 10" } ]

[ { "docid": "4582111", "title": "", "text": "F.3d 1325, 1328 (Fed.Cir.2003). A bailment is a type of contract whereby “an owner, while retaining title, delivers personalty to another for some particular purpose.... The relationship includes a return of the goods to the owner or a subsequent disposition in accordance with his instructions.” Lionberger v. United States, 371 F.2d 831, 840 (Ct.Cl.1967). The Complaint fails to allege sufficient facts to find a bailment in a number of aspects. Plaintiff contends that both the oral promise to return the computer within seven days and the signed Customs Form 6051D stating that the computer would be returned within thirty days gave rise to an implied promise to use due care during the alleged bailment. Am. Compl. at ¶ A(a). However, these Government promises do not give rise to a bailment. First, the Complaint does not allege that Plaintiff “delivered] personalty” to the Government. Lionberger, 371 F.2d at 840. Rather, the property was seized. See, e.g. Am. Compl. at ¶ A. Second, the Complaint does not allege that the computer would be returned “in accordance with [Plaintiffs] instructions.” Lionberger, 371 F.2d at 840. Moreover, there are no facts in the Complaint demonstrating an explicit promise that the goods would be guarded or carefully handled. See Hatzlachh Supply Co. v. United States, 7 Cl.Ct. 743, 747 (1985) (holding no implied bailment created when plaintiff could not point to any “promise, representation or statement that [plaintiffs] goods would be guarded or carefully handled pending resolution of the forfeitures incurred”). Furthermore, the Complaint fails to allege facts demonstrating the parties’ mutual intent. The “purely unilateral act” of seizing a person’s personal property does not evidence intent to enter into a bailment contract. Aide, S.A. v. United States, 28 Fed.Cl. 26, 31 (1993). Moreover, the Complaint describes the Government’s actions as a “seizure.” See, e.g. Am. Compl. at ¶ A The oral promise to return the computer in seven days and the Customs Form 6051D are not enough to overcome the unilateral nature of the transaction. See Husband v. United States, 90 Fed.Cl. 29, 37 (2009) (no bailment despite a government receipt given to Plaintiff" } ]

[ { "docid": "12512449", "title": "", "text": "in a hurricane. The court held that the government was not liable on either contract or takings theory, because: The Customs Service eventually did seek forfeiture of the aircraft. In light of these facts, it is difficult to fathom how plaintiff believed the Customs Service was indicating that it would safeguard the aircraft and its contents for later return to plaintiff. Quite to the contrary, the Customs Service was actively seeking to permanently deprive plaintiff of ownership of the aircraft through forfeiture proceedings. 28 Fed.Cl. at 32. The Aide ruling provides no support for this court’s holding that the government has no liability for the destruction of Mr. Kam-Almaz’s detained property, with no accusation of wrongdoing, before or after the detention. The record supports Mr. Kam-Almaz’s position that the Customs agent stated the intent to return his property in a short time. The Customs agent was told that the computer held important and valuable business information, for the government permitted Mr. Kam-Almaz to copy one but not all of his files. The Complaint states: At the time of seizure of his computer, Agent Craig Moldowan orally promised to return it to the Plaintiff within seven (7) days after a security review of its contents was performed by the Defendants. Agent Moldowan signed a written Customs Form 6051D, evidencing his written offer not to detain the Plaintiffs computer for longer than thirty days.... The Defendants breached their implied contract with Plaintiff when they failed to use due care in a prompt manner in the handling of the Plaintiffs computer, due to a Government, operator-caused system crash.... In addition, the Defendants failed to mitigate these damages by simply allowing the Plaintiff to make a copy of his operating software and data files, as he requested the defendants do. Applying law and precedent to the pleadings, Mr. Kam-Almaz has stated a claim for relief on an implied-in-fact contract theory. The complaint was improperly dismissed for failure to state a claim. II. The Takings Claim The panel majority also dismisses Mr. Kam-Almaz’s Fifth Amendment takings claim, on the ground that his property was “seized" }, { "docid": "12512423", "title": "", "text": "did not “deliver[] personalty” to the government as a bailment requires. Id. at 88. The court further found that the complaint failed to allege that the government promised to return the computer in accordance with Kam-Almaz’s instructions or to guard or carefully handle the equipment. Again focusing on the fact that the complaint described the government’s act as a “seizure,” the court found that the complaint failed to allege facts demonstrating the required mutuality of intent between the parties. Finally, the court held that the complaint lacked the necessary allegations of Muldowan’s authority to enter into a bailment contract. The Court of Federal Claims also dismissed Kam-Almaz’s takings claim under RCFC 12(b)(6). The court explained that property seized and retained pursuant to the government’s police power is not taken for a public use within the context of the Fifth Amendment’s Takings Clause. Noting that border agents do not have authority to seize property without having reasonable cause to suspect a violation of law, the court rejected Kam-Almaz’s theory that the laptop was seized, not according to the police power, but according to an administrative border search for security purposes. The court further explained that, if the seizure was unauthorized, then the Court of Federal Claims would lack jurisdiction, because due process and Fourth Amendment claims are reserved for district courts. Finally, the court held that even assuming the government’s actions were authorized and that an unreasonable delay in returning the property amounted to a taking, the court lacks jurisdiction over damage claims for due process violations. Kam-Almaz appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). Discussion To avoid dismissal for failure to state a claim under RCFC 12(b)(6), “a complaint must allege facts ‘plausibly suggesting (not merely consistent with)’ a showing of entitlement to relief.” Acceptance Ins. Cos., Inc. v. United States, 583 F.3d 849, 853 (Fed.Cir.2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The facts as alleged “must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations" }, { "docid": "12512447", "title": "", "text": "Mr. Kam-Almaz’s computer and files, for the bailment was compulsory and solely for the benefit of the government. The panel majority is incorrect in holding that Mr. Kam-Almaz’s claim is barred because he “did not voluntarily ‘deliver’ his equipment to Muldowan,” maj. op. at 1369, for, as the Supreme Court and other courts have explained, the involuntary detention with a promise to return the property confirms the implied-in-fact bailment. Mr. Kam-Almaz was given a written receipt for the laptop, stating in writing that it would be returned within thirty days. This is written confirmation of the contract of bailment. The fact that Mr. Kam-Almaz did not voluntarily part with his laptop does not absolve the government from liability for the injury to his property. Acquiescence in Customs’ seizure for inspection of the property does not include authorization to destroy the property. As the Court stated in Kosak, the “owner of property detained by the Customs Service” has “at least” an implied-in-fact contract remedy. Ignoring this direct precedent, my colleagues dismiss Mr. Kam-Almaz’s contract claim, seeking support in seizures of contraband or illegal activity. In Llamera v. United States, 15 Cl.Ct. 593 (1988), the Court of Federal Claims held that the government was not liable on a bailment theory for loss of a vessel that was seized by the Coast Guard for violation of law. The Court of Federal Claims found that the Coast Guard had told the plaintiff that the Coast Guard “was assuming no responsibility whatsoever for the vessel” it had seized, and “told plaintiffs brother that he could stay with the vessel or have someone board the vessel to watch it for him.” 15 Cl.Ct. at 597-98. Such explicit statement of absence of responsibility for the vessel is far removed from the facts of this case. The panel majority also places inappropriate reliance on the criminal seizure in Alde, S.A. v. United States, 28 Fed.Cl. 26 (1993), where the government seized an aircraft from the Dominican Republic, on its arrival in Puerto Rico, on warrant for suspected violation of law. While in government control, the aircraft was damaged" }, { "docid": "12512448", "title": "", "text": "support in seizures of contraband or illegal activity. In Llamera v. United States, 15 Cl.Ct. 593 (1988), the Court of Federal Claims held that the government was not liable on a bailment theory for loss of a vessel that was seized by the Coast Guard for violation of law. The Court of Federal Claims found that the Coast Guard had told the plaintiff that the Coast Guard “was assuming no responsibility whatsoever for the vessel” it had seized, and “told plaintiffs brother that he could stay with the vessel or have someone board the vessel to watch it for him.” 15 Cl.Ct. at 597-98. Such explicit statement of absence of responsibility for the vessel is far removed from the facts of this case. The panel majority also places inappropriate reliance on the criminal seizure in Alde, S.A. v. United States, 28 Fed.Cl. 26 (1993), where the government seized an aircraft from the Dominican Republic, on its arrival in Puerto Rico, on warrant for suspected violation of law. While in government control, the aircraft was damaged in a hurricane. The court held that the government was not liable on either contract or takings theory, because: The Customs Service eventually did seek forfeiture of the aircraft. In light of these facts, it is difficult to fathom how plaintiff believed the Customs Service was indicating that it would safeguard the aircraft and its contents for later return to plaintiff. Quite to the contrary, the Customs Service was actively seeking to permanently deprive plaintiff of ownership of the aircraft through forfeiture proceedings. 28 Fed.Cl. at 32. The Aide ruling provides no support for this court’s holding that the government has no liability for the destruction of Mr. Kam-Almaz’s detained property, with no accusation of wrongdoing, before or after the detention. The record supports Mr. Kam-Almaz’s position that the Customs agent stated the intent to return his property in a short time. The Customs agent was told that the computer held important and valuable business information, for the government permitted Mr. Kam-Almaz to copy one but not all of his files. The Complaint states: At" }, { "docid": "12512433", "title": "", "text": "finally, in Acadia, a case involving a takings claim under the Fifth Amendment, we noted “that an owner [of property detained by Customs] might be able to bring a suit under the Tucker Act for money damages under a theory of breach of an implied-in-fact contract of bailment between the owner and Customs,” but “we expressed] no opinion as to whether the facts [alleged] might support such a claim.” 458 F.3d at 1334 n. 2. In the present case, it is unnecessary to opine whether under some hypothetical set of alleged facts an implied-in-fact bailment contract could conceivably arise from the detainment of property by Customs. We merely hold, on the specific facts alleged and for the reasons stated, that Kam-Almaz’s complaint fails to state a claim for an implied-in-fact bailment contract. II We next turn to Kam-Almaz’s claim for a compensable taking. The Fifth Amendment to the United States Constitution provides in part, “nor shall private property be taken for public use, without just compensation.” The purpose of the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). Kam-Almaz asserts that the Court of Federal Claims erred by dismissing his takings claim for failure to state a claim under RCFC 12(b)(6). According to Kam-Almaz, the government’s seizure of his laptop constituted a physical taking for public use, for which just compensation is due. Kam-Almaz further contends that his claim alleges a compensable taking because, unlike cases such as Bennis v. Michigan, 516 U.S. 442, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996), a crime was not committed using the seized property. In addition, Kam-Almaz argues that the reasoning of the Court of Federal Claims was flawed because it did not define the extent of the government’s “police power.” The government, in response, contends that the Court of Federal Claims lacked jurisdiction over Kam-Almaz’s takings claim because Kam-Almaz asserted that the seizure of his laptop" }, { "docid": "12512446", "title": "", "text": "customs had checked them against the invoice. Such a promise need not be formalized in a written agreement or even made the subject of a specific conversation. It arises from the implied promise to return the goods to the lawful owner after the customs inspection has been completed. Id. at 532. The court held that the government “voluntarily undertook a bailment of the goods in question, a promise on its part to use due care during the term of the bailment can and should be implied.” Id. Contrary to precedent, my colleagues hold that “because Kam-Almaz did not voluntarily deliver his property to the government, his complaint fails to allege any valid consideration.” Maj. op. at 1369. In Alliance the court explained that “the owner’s trusting him with the goods is a sufficient consideration to oblige him to a careful management,” and that “compelling reason to find consideration exists here because the bailment, although gratuitous, was compulsory and for the exclusive benefit of the bailee.” Id. at 533. This reasoning applies in Customs’ detention of Mr. Kam-Almaz’s computer and files, for the bailment was compulsory and solely for the benefit of the government. The panel majority is incorrect in holding that Mr. Kam-Almaz’s claim is barred because he “did not voluntarily ‘deliver’ his equipment to Muldowan,” maj. op. at 1369, for, as the Supreme Court and other courts have explained, the involuntary detention with a promise to return the property confirms the implied-in-fact bailment. Mr. Kam-Almaz was given a written receipt for the laptop, stating in writing that it would be returned within thirty days. This is written confirmation of the contract of bailment. The fact that Mr. Kam-Almaz did not voluntarily part with his laptop does not absolve the government from liability for the injury to his property. Acquiescence in Customs’ seizure for inspection of the property does not include authorization to destroy the property. As the Court stated in Kosak, the “owner of property detained by the Customs Service” has “at least” an implied-in-fact contract remedy. Ignoring this direct precedent, my colleagues dismiss Mr. Kam-Almaz’s contract claim, seeking" }, { "docid": "12512427", "title": "", "text": "dealt with according to his directions, or kept until he reclaims it, as the case may be.” (international quotation marks omitted)). Kam-Almaz, as the plaintiff, bears the burden of proving the existence of an implied-in-fact contract. See Hanlin v. United States, 316 F.3d 1325, 1330 (Fed.Cir.2003). Kam-Almaz contends that the Court of Federal Claims erred by concluding that his complaint failed to allege facts sufficient to assert a plausible claim for breach of an implied bailment contract. Kam-Almaz asserts that his complaint plausibly alleges a bailment because Kam-Almaz “delivered personalty” by transferring possession of his laptop to ICE, and because his computer was expected to be held only for a short period of time and then returned in working condition. Kam-Almaz further contends that his complaint plausibly alleges a breach of an implied-in-fact contract because the facts alleged demonstrate (1) mutuality of intent to contract, (2) a negotiation demonstrating offer, acceptance, and consideration, and (3) actual authority of Muldowan to bind the United States in contract. Finally, he contends that Supreme Court and Federal Circuit cases recognize that a party in Kam-Almaz’s shoes may be able to establish a breach of an implied contract when property temporarily detained by the government is damaged. The government, in response, contends that the Court of Federal Claims correctly dismissed Kam-Almaz’s complaint on the pleadings. According to the government, Kam-Almaz did not allege mutual intent to contract because the government lawfully-seized the laptop pursuant to its police power. The government further asserts that Kam-Almaz failed to establish any other element of an implied-in-fact bailment contract, including an offer, acceptance, consideration, and actual authority to contract. We agree with the government that the Court of Federal Claims correctly dismissed Kam-Almaz’s complaint for failure to allege facts plausibly suggesting a breach of an implied-in-fact bailment contract. Like the Court of Federal Claims, we find numerous deficiencies in Kam-Almaz’s complaint. The complaint does not plausibly allege the required elements of a bailment. Kam-Almaz did not voluntarily “deliver” his equipment to Muldowan. See Goudy & Stevens, Inc. v. Cable Marine, Inc., 924 F.2d 16, 18 (1st Cir.1991). Rather," }, { "docid": "12512420", "title": "", "text": "Opinion for the court filed by Circuit Judge LOURIE. Dissenting opinion filed by Circuit Judge NEWMAN. LOURIE, Circuit Judge. Majd Kam-Almaz appeals from the final decision of the United States Court of Federal Claims dismissing his breach of contract and Fifth Amendment taking claims. We affirm. Background Kam-Almaz alleged the following facts in his pleadings before the Court of Federal Claims. See Compl., Jan. 5, 2009, ECF No. 1; Am. Compl., Jan. 25, 2010, ECF No. 23. Kam-Almaz is a United States citizen employed in the business of international disaster relief assistance. On April 7, 2006, Kam-Almaz returned home from an overseas business trip. At Dulles International Airport in Loudoun County, Virginia, Agent Craig Muldowan of the United States Immigration and Customs Enforcement (“ICE”) detained Kam-Almaz, informing him that he was a “person of interest to ICE.” Compl. ¶ 8. Muldowan seized Kam-Almaz’s laptop and two flash drives for review by ICE. Before Muldowan seized the equipment, however, Kam-Almaz informed him that it contained the only copies of his business files; in response, Muldowan permitted Kam-Almaz to copy and retain one computer file. Upon seizing the equipment, Muldowan provided to Kam-Almaz a signed Customs Form 6051D indicating that the equipment would be detained for up to thirty days. Muldowan also verbally assured Kam-Almaz that the equipment would be held for no more than seven days. While the laptop was detained, its hard drive failed, destroying much of Kam-Almaz’s business software. On May 15, 2006, a representative from the U.S. Customs and Border Protection (“Customs”) sent Kam-Almaz a letter seeking to assure him that a prompt resolution of the issue would be addressed by Muldowan. On June 21, 2006, about ten weeks after its seizure, the laptop was returned to Kam-Almaz. On June 24, 2006, the Director of Investigations for ICE sent Kam-Almaz a letter representing that “ICE has made every attempt to minimize the inconvenience to [Kam-Almaz]. ICE copied the files and provided them to Mr. Kam-Almaz during the initial border stop.” Compl. ¶¶ 18-19. On January 5, 2009, Kam-Almaz filed suit in the Court of Federal Claims, alleging breach" }, { "docid": "12512428", "title": "", "text": "cases recognize that a party in Kam-Almaz’s shoes may be able to establish a breach of an implied contract when property temporarily detained by the government is damaged. The government, in response, contends that the Court of Federal Claims correctly dismissed Kam-Almaz’s complaint on the pleadings. According to the government, Kam-Almaz did not allege mutual intent to contract because the government lawfully-seized the laptop pursuant to its police power. The government further asserts that Kam-Almaz failed to establish any other element of an implied-in-fact bailment contract, including an offer, acceptance, consideration, and actual authority to contract. We agree with the government that the Court of Federal Claims correctly dismissed Kam-Almaz’s complaint for failure to allege facts plausibly suggesting a breach of an implied-in-fact bailment contract. Like the Court of Federal Claims, we find numerous deficiencies in Kam-Almaz’s complaint. The complaint does not plausibly allege the required elements of a bailment. Kam-Almaz did not voluntarily “deliver” his equipment to Muldowan. See Goudy & Stevens, Inc. v. Cable Marine, Inc., 924 F.2d 16, 18 (1st Cir.1991). Rather, as Kam-Almaz repeatedly alleged, it was involuntarily “seized.” See Compl. ¶¶ 4, 5, 8, 10-12, 14, 16; Am. Compl. ¶ 3. The complaint further fails to allege facts indicating the mutual intent required for an implied-in-fact contract. A seizure, essentially by definition, lacks mutual intent. Thus, as the government correctly points out, a seizure pursuant to the government’s authority to police the border generally will not give rise to an implied-in-fact bailment contract. See Llamera v. United States, 15 Cl.Ct. 593, 597 (1988); see also Alde, S.A. v. United States, 28 Fed.Cl. 26, 30 (1993) (collecting cases and observing that “[t]hese cases evince a uniform reluctance to find an implied bailment contract ... where plaintiffs property has been seized pursuant to the Government’s exercise of its police power”). Further, because Kam-Almaz did not voluntarily deliver his property to the government, his complaint fails to allege any valid consideration. See Llamera, 15 Cl.Ct. at 598. In summary, we agree with the Court of Federal Claims that “[t]he ‘purely unilateral act’ of seizing a person’s personal property" }, { "docid": "12512425", "title": "", "text": "in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted). At the same time, a court is “ ‘not bound to accept as true a legal conclusion couched as a factual allegation.’ ” Id. (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). We review de novo a decision to dismiss a complaint for failure to state a claim under RCFC 12(b)(6). Hearts Bluff Game Ranch, Inc. v. United States, 669 F.3d 1326, 1328 (Fed.Cir.2012). We also review de novo the grant or denial of a motion to dismiss for lack of jurisdiction. See Frazer v. United States, 288 F.3d 1347, 1351 (Fed.Cir.2002). I We first address Kam-Almaz’s claim for breach of an implied-in-fact bailment contract. “An implied-in-fact contract with the government requires proof of (1) mutuality of intent, (2) consideration, (3) an unambiguous offer and acceptance, and (4) actual authority on the part of the government’s representative to bind the government in contract.” Hanlin v. United States, 316 F.3d 1325, 1328 (Fed.Cir.2003) (internal quotation marks omitted). An implied-in-fact contract is founded upon a meeting of the minds and “ ‘is inferred, as a fact, from the conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.’ ” Id. (quoting Balt. & Ohio R.R. v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923)). “A bailment relationship is said to arise where an owner, while retaining title, delivers personalty to another for some particular purpose upon an express or implied contract. The relationship includes a return of the goods to the owner or a subsequent disposition in accordance with his instructions.” Lionberger v. United States, 371 F.2d 831, 840 (Ct.Cl.1967); see also 19 Williston on Contracts § 53:1 (4th ed. 2012) (defining a bailment as “a delivery of personalty for some particular purpose, or on mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled it shall be redelivered to the person who delivered it, or otherwise" }, { "docid": "12512442", "title": "", "text": "whether the government, having taken possession of the computer and destroyed its hard drive and files, had any responsibility for the property and has any liability for the loss incurred. The court now condones and ratifies this injury to Mr. Kam-Almaz’s property, and holds that he is without remedy. I respectfully dissent. Discussion This suit is brought under the Tucker Act. The government’s position is that the government action is not a Fifth Amendment taking of property because the property was taken in exercise of police power. The government also states its action did not create an implied-in-fact bailment contract because the computer was seized without mutual consent, and that all contracts require consent. My colleagues agree, and since the Supreme Court has held that no remedy is available on a theory of tort, transfer to a district court is not available, depriving Mr. Kam-Almaz of all access to remedy. However, as I shall explain, the court errs in holding that Mr. Kam-Almaz is without Tucker Act remedy for the destruction of his property by the government. I. The Contract Claim The court holds that Mr. Kam-Almaz’s claim for breach of an implied contract of bailment cannot lie, because his complaint states that his property was seized. The court reasons that a “seizure, essentially by definition, lacks mutual intent,” maj. op. at 1369, and thus that the government cannot be liable on contract theory because it took the property without consent. This holding is contrary to law and precedent. In several rulings, typified by Kosak v. United States, 465 U.S. 848, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984), the Court held, under circumstances of Customs seizure, that remedy may be available on a theory of implied-in-fact contract of bailment. In Kosak the Customs Service seized antiques and objects of art belonging to the plaintiff. The property was eventually returned, but was damaged while in the custody of the Customs Service. The plaintiff brought suit under the Federal Tort Claims Act. The Court held that the Tort Claims Act did not apply to injury to property detained by the Customs Service," }, { "docid": "12512421", "title": "", "text": "Kam-Almaz to copy and retain one computer file. Upon seizing the equipment, Muldowan provided to Kam-Almaz a signed Customs Form 6051D indicating that the equipment would be detained for up to thirty days. Muldowan also verbally assured Kam-Almaz that the equipment would be held for no more than seven days. While the laptop was detained, its hard drive failed, destroying much of Kam-Almaz’s business software. On May 15, 2006, a representative from the U.S. Customs and Border Protection (“Customs”) sent Kam-Almaz a letter seeking to assure him that a prompt resolution of the issue would be addressed by Muldowan. On June 21, 2006, about ten weeks after its seizure, the laptop was returned to Kam-Almaz. On June 24, 2006, the Director of Investigations for ICE sent Kam-Almaz a letter representing that “ICE has made every attempt to minimize the inconvenience to [Kam-Almaz]. ICE copied the files and provided them to Mr. Kam-Almaz during the initial border stop.” Compl. ¶¶ 18-19. On January 5, 2009, Kam-Almaz filed suit in the Court of Federal Claims, alleging breach of an implied-in-fact contract. On January 25, 2010, he amended his complaint and included a takings claim. Kam-Almaz alleged damages totaling $469,480.00 due to lost business contracts resulting from his inability to access his computer files as well as replacement hardware, software, and warranty costs. On June 30, 2010, the government moved to dismiss, arguing that the Court of Federal Claims lacked jurisdiction over Kam-Almaz’s complaint, and that the complaint failed to state a claim upon which relief could be granted. In a decision dated January 7, 2011, the Court of Federal Claims granted the government’s motion to dismiss. Kam-Almaz v. United, States, 96 Fed.Cl. 84, 86 (2011). On the breach of contract claim, the court dismissed under Rule 12(b)(6) of the United States Court of Federal Claims (“RCFC 12(b)(6)”) for failure to state a claim upon which relief can be granted. The court held that the complaint failed in several respects to allege facts sufficient to find a bailment contract. The court found that, because the complaint stated that his property was seized, Kam-Almaz" }, { "docid": "12512429", "title": "", "text": "as Kam-Almaz repeatedly alleged, it was involuntarily “seized.” See Compl. ¶¶ 4, 5, 8, 10-12, 14, 16; Am. Compl. ¶ 3. The complaint further fails to allege facts indicating the mutual intent required for an implied-in-fact contract. A seizure, essentially by definition, lacks mutual intent. Thus, as the government correctly points out, a seizure pursuant to the government’s authority to police the border generally will not give rise to an implied-in-fact bailment contract. See Llamera v. United States, 15 Cl.Ct. 593, 597 (1988); see also Alde, S.A. v. United States, 28 Fed.Cl. 26, 30 (1993) (collecting cases and observing that “[t]hese cases evince a uniform reluctance to find an implied bailment contract ... where plaintiffs property has been seized pursuant to the Government’s exercise of its police power”). Further, because Kam-Almaz did not voluntarily deliver his property to the government, his complaint fails to allege any valid consideration. See Llamera, 15 Cl.Ct. at 598. In summary, we agree with the Court of Federal Claims that “[t]he ‘purely unilateral act’ of seizing a person’s personal property does not evidence intent to enter into a bailment contract.” Kam-Almaz, 96 Fed.Cl. at 88 (quoting Alde, 28 Fed.Cl. at 31). In support of his bailment claim, Kam-Almaz points to Muldowan’s statement that the laptop would be seized “for no more than seven days” and the document receipt stating that “shipments may be detained for up to thirty (30) days.” Compl. ¶ 12. Those estimates of when the seized property might be returned to Kam-Almaz, however, are insufficient to allege a bailment contract. See, e.g., Llamera, 15 Cl.Ct. at 597 (noting that even though the plaintiff received “a receipt” for his seized property, the facts “did not evidence any intent to enter into a bailment agreement”). Furthermore, as the relevant regulation indicates, the fact that Kam-Almaz received a receipt in no way diminishes the characterization of Muldowan’s actions as a unilateral seizure. See 19 C.F.R. § 162.21(a) (“A receipt for seized property shall be given at the time of seizure to the person from whom the property is seized.”). Kam-Almaz also alleges that correspondence between" }, { "docid": "12512424", "title": "", "text": "to the police power, but according to an administrative border search for security purposes. The court further explained that, if the seizure was unauthorized, then the Court of Federal Claims would lack jurisdiction, because due process and Fourth Amendment claims are reserved for district courts. Finally, the court held that even assuming the government’s actions were authorized and that an unreasonable delay in returning the property amounted to a taking, the court lacks jurisdiction over damage claims for due process violations. Kam-Almaz appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). Discussion To avoid dismissal for failure to state a claim under RCFC 12(b)(6), “a complaint must allege facts ‘plausibly suggesting (not merely consistent with)’ a showing of entitlement to relief.” Acceptance Ins. Cos., Inc. v. United States, 583 F.3d 849, 853 (Fed.Cir.2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The facts as alleged “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).” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted). At the same time, a court is “ ‘not bound to accept as true a legal conclusion couched as a factual allegation.’ ” Id. (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). We review de novo a decision to dismiss a complaint for failure to state a claim under RCFC 12(b)(6). Hearts Bluff Game Ranch, Inc. v. United States, 669 F.3d 1326, 1328 (Fed.Cir.2012). We also review de novo the grant or denial of a motion to dismiss for lack of jurisdiction. See Frazer v. United States, 288 F.3d 1347, 1351 (Fed.Cir.2002). I We first address Kam-Almaz’s claim for breach of an implied-in-fact bailment contract. “An implied-in-fact contract with the government requires proof of (1) mutuality of intent, (2) consideration, (3) an unambiguous offer and acceptance, and (4) actual authority on the part of the government’s representative to bind the government in contract.” Hanlin v. United States, 316" }, { "docid": "12512438", "title": "", "text": "property for law enforcement purposes, the [takings] inquiry remains focused on the character of the government action, not the culpability or innocence of the property holder.” 525 F.3d at 1154. Accordingly, Kam-Almaz’s innocence does not convert ICE’s seizure into a compensable taking under the Fifth Amendment. Kam-Almaz further asserts that the government’s seizure was not an exercise of its police power. We disagree. Customs officers unquestionably have the authority to search and seize property at our nation’s borders. See, e.g., 19 C.F.R. §§ 162.6, 162.21. Under the relevant regulation, “[p]roperty may be seized ... by any Customs officer who has reasonable cause to believe that any law or regulation enforced by Customs and Border Protection or Immigration and Customs Enforcement has been violated....” Id. § 162.21. Lawful seizures performed pursuant to such authority necessarily fall within the government’s power to police the border. The “police powers ... are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions.” The License Cases, 46 U.S. 504, 583, 5 How. 504, 12 L.Ed. 256 (1847) (opinion of Taney, C.J.). As we have noted, “[although the precise contours of the principle are difficult to discern, it is clear that the police power encompasses the government’s ability to seize and retain property to be used as evidence in a criminal prosecution.” AmeriSource, 525 F.3d at 1153. We therefore hold that the Court of Federal Claims correctly dismissed Kam-Almaz’s takings claim under RCFC 12(b)(6). Whatever claim Kam-Almaz may have against the United States, if any, it is not under a breach of an implied-in-fact contract or a takings theory. Conclusion We have considered Kam-Almaz’s remaining arguments and find them unpersuasive. The judgment of the Court of Federal Claims dismissing Kam-Almaz’s complaint is affirmed. AFFIRMED . Kam-Almaz relies on Shelden v. United States, 7 F.3d 1022 (Fed.Cir.1993), in asserting that a takings claim may lie when property is seized by the government from an innocent owner pursuant to a criminal investigation. Shelden, however, was decided before Bennis. As we noted in AmeriSource, ''[t]o the extent that [Shelden ]" }, { "docid": "12512426", "title": "", "text": "F.3d 1325, 1328 (Fed.Cir.2003) (internal quotation marks omitted). An implied-in-fact contract is founded upon a meeting of the minds and “ ‘is inferred, as a fact, from the conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.’ ” Id. (quoting Balt. & Ohio R.R. v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923)). “A bailment relationship is said to arise where an owner, while retaining title, delivers personalty to another for some particular purpose upon an express or implied contract. The relationship includes a return of the goods to the owner or a subsequent disposition in accordance with his instructions.” Lionberger v. United States, 371 F.2d 831, 840 (Ct.Cl.1967); see also 19 Williston on Contracts § 53:1 (4th ed. 2012) (defining a bailment as “a delivery of personalty for some particular purpose, or on mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled it shall be redelivered to the person who delivered it, or otherwise dealt with according to his directions, or kept until he reclaims it, as the case may be.” (international quotation marks omitted)). Kam-Almaz, as the plaintiff, bears the burden of proving the existence of an implied-in-fact contract. See Hanlin v. United States, 316 F.3d 1325, 1330 (Fed.Cir.2003). Kam-Almaz contends that the Court of Federal Claims erred by concluding that his complaint failed to allege facts sufficient to assert a plausible claim for breach of an implied bailment contract. Kam-Almaz asserts that his complaint plausibly alleges a bailment because Kam-Almaz “delivered personalty” by transferring possession of his laptop to ICE, and because his computer was expected to be held only for a short period of time and then returned in working condition. Kam-Almaz further contends that his complaint plausibly alleges a breach of an implied-in-fact contract because the facts alleged demonstrate (1) mutuality of intent to contract, (2) a negotiation demonstrating offer, acceptance, and consideration, and (3) actual authority of Muldowan to bind the United States in contract. Finally, he contends that Supreme Court and Federal Circuit" }, { "docid": "12512434", "title": "", "text": "Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). Kam-Almaz asserts that the Court of Federal Claims erred by dismissing his takings claim for failure to state a claim under RCFC 12(b)(6). According to Kam-Almaz, the government’s seizure of his laptop constituted a physical taking for public use, for which just compensation is due. Kam-Almaz further contends that his claim alleges a compensable taking because, unlike cases such as Bennis v. Michigan, 516 U.S. 442, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996), a crime was not committed using the seized property. In addition, Kam-Almaz argues that the reasoning of the Court of Federal Claims was flawed because it did not define the extent of the government’s “police power.” The government, in response, contends that the Court of Federal Claims lacked jurisdiction over Kam-Almaz’s takings claim because Kam-Almaz asserted that the seizure of his laptop was unlawful and unjust. Assuming the court had jurisdiction, the government asserts that the court correctly dismissed Kam-Almaz’s claim. According to the government, the complaint failed to allege a constitutional taking because an authorized seizure of property pursuant to the government’s police power is not for public use, and thus cannot be a taking. In addition, the government argues that property detained or seized by ICE officials is necessarily taken pursuant to the government’s police power. As an initial matter, we agree with Kam-Almaz that the Court of Federal Claims possessed jurisdiction over his takings claim. The assertion in Kam-Almaz’s complaint that he suffered “an unjust and unlawful taking of his property,” Compl. at II22, could be read in at least two ways. On the one hand, as the government contends, it could be an assertion that the government’s seizure was unauthorized, in which case the district court, not the Court of Federal Claims, would possess jurisdiction. See Acadia, 458 F.3d at 1331 (“[The] Tucker Act does not create jurisdiction in the Court of Federal" }, { "docid": "12512430", "title": "", "text": "does not evidence intent to enter into a bailment contract.” Kam-Almaz, 96 Fed.Cl. at 88 (quoting Alde, 28 Fed.Cl. at 31). In support of his bailment claim, Kam-Almaz points to Muldowan’s statement that the laptop would be seized “for no more than seven days” and the document receipt stating that “shipments may be detained for up to thirty (30) days.” Compl. ¶ 12. Those estimates of when the seized property might be returned to Kam-Almaz, however, are insufficient to allege a bailment contract. See, e.g., Llamera, 15 Cl.Ct. at 597 (noting that even though the plaintiff received “a receipt” for his seized property, the facts “did not evidence any intent to enter into a bailment agreement”). Furthermore, as the relevant regulation indicates, the fact that Kam-Almaz received a receipt in no way diminishes the characterization of Muldowan’s actions as a unilateral seizure. See 19 C.F.R. § 162.21(a) (“A receipt for seized property shall be given at the time of seizure to the person from whom the property is seized.”). Kam-Almaz also alleges that correspondence between him and the government supports the plausibility of his claim for an implied-in-fact bailment contract. But those letters do not evidence the government’s intent to enter into an enforceable implied-in-fact contract with Kam-Almaz. See Hanlin, 316 F.3d at 1330 n. 3. We therefore conclude that Kam-Almaz failed to plausibly allege a mutual intent to contract, as an implied-in-fact contract requires, and further failed to plausibly allege a voluntary delivery of property, as needed for a bailment contract. We need not address the other deficiencies in Kam- Almaz’s pleadings identified by the Court of Federal Claims in order to conclude that the court correctly dismissed Kam-Almaz’s claim for breach of an implied-in-fact bailment contract. Finally, Kam-Almaz contends that the Court of Federal Claims “treated the issue of the bailment as if such a claim were legally not viable,” and in so doing disregarded the Supreme Court’s opinions of Kosak v. United States, 465 U.S. 848, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984) and Hatzlachh Supply Co. v. United States, 444 U.S. 460, 100 S.Ct. 647, 62" }, { "docid": "12512439", "title": "", "text": "How. 504, 12 L.Ed. 256 (1847) (opinion of Taney, C.J.). As we have noted, “[although the precise contours of the principle are difficult to discern, it is clear that the police power encompasses the government’s ability to seize and retain property to be used as evidence in a criminal prosecution.” AmeriSource, 525 F.3d at 1153. We therefore hold that the Court of Federal Claims correctly dismissed Kam-Almaz’s takings claim under RCFC 12(b)(6). Whatever claim Kam-Almaz may have against the United States, if any, it is not under a breach of an implied-in-fact contract or a takings theory. Conclusion We have considered Kam-Almaz’s remaining arguments and find them unpersuasive. The judgment of the Court of Federal Claims dismissing Kam-Almaz’s complaint is affirmed. AFFIRMED . Kam-Almaz relies on Shelden v. United States, 7 F.3d 1022 (Fed.Cir.1993), in asserting that a takings claim may lie when property is seized by the government from an innocent owner pursuant to a criminal investigation. Shelden, however, was decided before Bennis. As we noted in AmeriSource, ''[t]o the extent that [Shelden ] purports to create any rules with respect to innocent owners in the takings context, it plainly lacks force.” 525 F.3d at 1156. Kam-Almaz's reliance on Shelden is therefore not persuasive. . The parties do not dispute that Agent Muldowan of ICE served as a Customs officer in performing the acts alleged in Kam-Almaz’s complaint. See 19 C.F.R. §§ 162.6, 162.21; see also 19 U.S.C. § 1401 (i). We therefore have no occasion in this case to distinguish between Customs and ICE concerning the authority of their officers to perform border searches and seizures. NEWMAN, Circuit Judge, dissenting. Mr. Kam-Almaz, a United States citizen, returning to Dulles International Airport from international business travel, was accused of no wrongdoing, and his property was seized, detained, and damaged. He was without fault and without accusation. The court now condones this action and injury, denying all remedy for the destruction of his hard drive and the loss of valuable business information on his computer. Mr. Kam-Almaz was travelling abroad for his work with the International Institute for Psychosocial Development," }, { "docid": "12512422", "title": "", "text": "of an implied-in-fact contract. On January 25, 2010, he amended his complaint and included a takings claim. Kam-Almaz alleged damages totaling $469,480.00 due to lost business contracts resulting from his inability to access his computer files as well as replacement hardware, software, and warranty costs. On June 30, 2010, the government moved to dismiss, arguing that the Court of Federal Claims lacked jurisdiction over Kam-Almaz’s complaint, and that the complaint failed to state a claim upon which relief could be granted. In a decision dated January 7, 2011, the Court of Federal Claims granted the government’s motion to dismiss. Kam-Almaz v. United, States, 96 Fed.Cl. 84, 86 (2011). On the breach of contract claim, the court dismissed under Rule 12(b)(6) of the United States Court of Federal Claims (“RCFC 12(b)(6)”) for failure to state a claim upon which relief can be granted. The court held that the complaint failed in several respects to allege facts sufficient to find a bailment contract. The court found that, because the complaint stated that his property was seized, Kam-Almaz did not “deliver[] personalty” to the government as a bailment requires. Id. at 88. The court further found that the complaint failed to allege that the government promised to return the computer in accordance with Kam-Almaz’s instructions or to guard or carefully handle the equipment. Again focusing on the fact that the complaint described the government’s act as a “seizure,” the court found that the complaint failed to allege facts demonstrating the required mutuality of intent between the parties. Finally, the court held that the complaint lacked the necessary allegations of Muldowan’s authority to enter into a bailment contract. The Court of Federal Claims also dismissed Kam-Almaz’s takings claim under RCFC 12(b)(6). The court explained that property seized and retained pursuant to the government’s police power is not taken for a public use within the context of the Fifth Amendment’s Takings Clause. Noting that border agents do not have authority to seize property without having reasonable cause to suspect a violation of law, the court rejected Kam-Almaz’s theory that the laptop was seized, not according" } ]

[ { "docid": "12785338", "title": "", "text": "particularly since the defendants have the burden of proof on this issue. Although defendants argue that the plaintiffs never demonstrated the causal connection between the defects of the vessel and the damage to the cargo, it was not its obligation to do so. Once it successfully demonstrated that the cargo was loaded in good condition, and discharged in damaged condition, the burden was on the defendants to show that the cause of the damage was one of the risks for which carriers are not liable. Its failure to do this supports the judgment for the plaintiffs. Damages Defendants challenge the inclusion in the damage award of several specific items. This Court has observed that “[g]reat latitude is given the trial judge in awarding damages, . .” Drake v. E. I. DuPont deNemours & Co., 432 F.2d 276, 279 (5th Cir. 1970). The plaintiffs submitted in support of their claims numerous receipts and other documentation of ex penses incurred in rectifying the problems caused by the cargo contamination. Defendants have failed to demonstrate that the damage award should be disturbed on this appeal. Prejudgment Interest Mobil, in its direct appeal, seeks relief from the district court’s decision to deny prejudgment interest. In admiralty, interest should be granted unless there are exceptional or peculiar circumstances. American Zinc Co. v. Foster, 441 F.2d 1100 (5th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 99, 30 L.Ed.2d 95 (1971); Mid-America Transportation Co., Inc. v. Rose Barge Line, Inc., 477 F.2d 914 (8th Cir. 1973). Prejudgment interest is not awarded as a penalty, but is in the nature of compensation for the use of funds. See Rosa v. Insurance Company of the State of Pennsylvania, 421 F.2d 390, 393 (9th Cir. 1970). In the instant case the defendants have had the use of money during the entire period of this protracted litigation, to which the plaintiffs have ultimately been found entitled. Nonetheless, the district court concluded that prejudgment interest should not be awarded here because of “[t]he complex nature of these consolidated cases, the extensive discovery required, the stay required because of [a] pending related" } ]

[ { "docid": "17823874", "title": "", "text": "after tax, future wage loss, discounted to present value is $496,963.00. The Court accepts Dr. Rice’s testimony and therefore awards Baham $496,963.00 for his future loss of wages. PREJUDGMENT INTEREST Under maritime law, an award of pre-judgment interest on past damages “is the rule rather than the exception, and, in practice, well-nigh automatic.” Reeled Tubing, Inc. v. M/V Chad G, 794 F.2d 1026, 1028 (5th Cir.1986); Couch v. CroMarine Transport, Inc., 44 F.3d 319, 328 (5th Cir.1995). A trial court only has the discretion to deny pre-judgment interest where peculiar circumstances would make such an award inequitable. Reeled Tubing, 794 F.2d at 1028. The general rule is that prejudgment interest is to be awarded from the date of the casualty to ensure the plaintiff is compensated in full. See Probo II London v. M/V Isla Santay, 92 F.3d 361 n. 2 (5th cir.1996); Reeled Tubing, 794 F.2d at 1028; City of Milwaukee v. Cement Div., Nat. Gypsum Co., 515 U.S. 189, 115 S.Ct. 2091, 2095-2096, 132 L.Ed.2d 148 (1995). It is within the discretion of the Court to select an equitable rate of pre-judgment interest, and the court may look to reasonable guideposts. Harrison v. Diamond Offshore Drilling, Inc., 2008 WL 708076, *24 (E.D.La.2008) citing Hansen v. Continental Ins. Co., 940 F.2d 971, 984 (5th Cir.1991); Reeled Tubing, 794 F.2d at 1029. The Court finds that an award of prejudgment interest from the date of plaintiff’s accident (September 14, 2006) is appropriate in this case at the rate of 1.125%, which is the most recently quoted rate for three-year treasury notes, on the plaintiffs past damages as a described above (past lost wages and past pain and suffering). wmo.treaswnjdirect.gov and Couch, 44 F.3d at 328 (a district court may not award prejudgment interest on future damages). SUMMARY On the basis of the foregoing findings of fact and conclusions of law, the Court finds that the plaintiff is entitled to recover the following damages: Past Lost Wages $106,230.50 Future Lost Wages $496,963.00 Past Medical Expenses $ 68,599.89 Future Medical Expenses $ 28,200.00 Past Pain and Suffering $125,000.00 Future Pain and Suffering" }, { "docid": "23507318", "title": "", "text": "to prove the existence of any such obligation running directly from Smith to Lumar. Therefore, we apply the traditional view of no contribution as exemplified by cases such as Halcyon, and deny Lumar contribution from Smith respecting Mrs. Simeon’s loss of consortium. VII. Prejudgment interest We must modify the district court’s award of prejudgment interest. The court refused to order prejudgment interest on the Jones Act damages awarded by the jury against Smith. This ruling is correct because Smith’s liability arises under the Jones Act and “prejudgment interest is not recoverable in Jones Act cases tried to a jury.” See McPhillamy v. Brown & Root, Inc., 810 F.2d 529, 532 n. 1 (5th Cir.1987) (citing Fifth Circuit precedent). Lumar’s liability to Simeon and his wife arises under general maritime law after a bench trial. The district court exercised its discretion and ordered prejudgment interest on those maritime damages. This was proper because “[t]he award of prejudgment interest under maritime law is ‘well-nigh automatic.’ ” Id. (quoting Reeled Tubing, Inc. v. M/V CHAD G, 794 F.2d 1026, 1028 (5th Cir.1986)). However, the district court should not have ordered prejudgment interest on all the damages recoverable from Lumar because some of them were to compensate for future (i.e., posttrial) harm. Martin v. Walk, Haydel & Associates, 794 F.2d 209, 212 (5th Cir.1986); Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 491 (5th Cir.1985). As in Martin, we remand this case so that the district court may apportion damages (both economic and other) between past and future harm and award prejudgment interest only on those damages that the plaintiff in question had incurred as of the initial judgment date. Lumar must pay prejudgment interest on so much of the $500,838.75 damages for which it is liable to Simeon in Simeon’s case against it as represents damages incurred prior to trial, and on so much of Mrs. Simeon’s $72,000 loss of consortium damages for which it is liable as represents damages incurred by her prior to trial, but Lumar may not recover in a contribution action against Smith any amount representing prejudgment" }, { "docid": "7859074", "title": "", "text": "district court will confront it on remand. As a general rule, prejudgment interest is allowed in admiralty cases. It is not a penalty, but compensation for the use of funds wrongfully withheld. It may be denied only where peculiar circumstances make its granting inequitable. Noritake Co. v. M/V Hellenic Champion, 627 F.2d at 728-30; In re M/V Vulcan, 553 F.2d 489 (5th Cir.), cert. denied, 434 U.S. 855, 98 S.Ct. 175, 54 L.Ed.2d 127 (1977). On remand, the district court should determine whether such circumstances exist, and if they do not it should award prejudgment interest. The interest should be calculated on Platoro’s share of the fund, not on the element of time and labor. Texas’ argument that interest should accrue only from the date of filing suit disregards the purpose of the award. It is to compensate Platoro for the fact that Texas has had the use of the artifacts since 1968 or 1969, while Platoro has not had the use of the salvage award to which it was entitled. Noritake, 627 F.2d at 728. Any interest awarded should therefore accrue from the time at which Platoro became entitled to a salvage award, i.e., when the res was returned to Texas. This is the usual rule: admiralty courts ordinarily award interest from the date of loss. In re M/V Vulcan, supra; Geotechnical Corp. v. Pure Oil Co., 214 F.2d 476 (5th Cir.1954). Texas’ final contention is that the rate of any prejudgment interest allowed should be limited to 6%, rather than the 9% rate used by the district court in its discussion. The premise of this argument is that the admiralty court is bound by the rate set by the law of the state in which it sits. This premise is false. Admiralty courts have discretion in setting the rate of prejudgment interest. Gator Marine Service Towing, Inc. v. J. Ray McDermott & Co., 651 F.2d 1096 (5th Cir.1981); In re M/V Vulcan, supra; Geotechnical Corp. v. Pure Oil Co., supra. They may be guided by state law, Gator Marine, supra; Geotechnical Corp., supra, but they are not bound" }, { "docid": "23507322", "title": "", "text": "court’s denial of prejudgment interest in Simeon’s suit against Smith; and (13) hold that Simeon and Mrs. Simeon are entitled to appropriate prejudgment interest from Lumar on, but only on, so much of their damages recoverable from Lumar as were incurred and had accrued prior to trial, but not on the portion thereof which would accrue or be incurred after trial, and remand to the district court to divide such damages accordingly and determine the appropriate prejudgment interest, all as stated in part VII, supra, of our opinion. Accordingly, the judgment below is AFFIRMED in part and REVERSED in part, and the cause is REMANDED for further proceedings consistent herewith. . The limitations period applicable to Jones Act claims is three years. 45 U.S.C. § 56 (Federal Employers’ Liability Act limitations period applicable to Jones Act); Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir.1984). No set limitations period governs maritime claims. Instead, the doctrine of laches is applied with a presumption that the claim is barred if filed past the Jones Act limitations period. Albertson, 749 F.2d at 233; Watz v. Zapata Off-Shore Co., 431 F.2d 100, 111 (5th Cir.1970). . Before trial, the parties stipulated both to Si-meon’s seaman status and that his lost past (1126,403.50) and future ($43,500) wages totaled $169,903.50. The parties also stipulated that Smith's insurer had paid, at date of trial, (1) $73,416 of this sum (leaving a balance of $96,-487.50, consisting of $52,978 past and $43,500 future wages); (2) all of Simeon’s medical expenses (cure) incurred to date of trial ($51,-457.47); and (3) $12,880 in maintenance. Therefore, the only damages as to which findings were sought at trial were for (1) Simeon’s past and future pain, suffering, loss of enjoyment of life, disablement, and disfigurement; (2) his future medical expenses; and (3) Mrs. Simeon’s claim for loss of consortium. .Although there was not complete diversity between the parties, it is settled that an unseaworthiness claim when combined with a Jones Act claim is likewise triable to the jury even in the absence of diversity. Cruz v. Hendy International Co., 638" }, { "docid": "7453987", "title": "", "text": "the Court relied on Congress’ failure to amend the FELA to provide for prejudgment interest in the face of more than seven decades of judicial unanimity wherein state and federal courts have denied such prejudgment interest. Monessen, 486 U.S. at 338-40, 108 S.Ct. at 1844. However, the same reasoning in the instant case leads to the conclusion that prejudgment interest is appropriate. Section 905(b) actions are general maritime actions for which prejudgment interest has been jurisprudentially sanctioned. Hernandez v. M/V Rajaan, 841 F.2d 582, 590 (5th Cir.), cert. denied, — U.S. -, 109 S.Ct. 530, 102 L.Ed.2d 562 (1988); Helaire v. Mobil Oil Co., 709 F.2d 1031, 1042-43 (5th Cir.1983) (though the awarding of pre judgment interest lies within the discretion of the trial judge, the allowance of prejudgment interest in maritime law is the rule rather than the exception). See also, Noritake Co., Inc. v. M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir.1980). Because Congress has made no indication that prejudgment interest is inappropriate in maritime cases, the award is upheld as proper. As the Randolphs correctly point out, one measure of prejudgment interest that has been upheld as within a trial court’s discretion is the prejudgment interest rate of the state in which the court sits. Bartholomew v. CNG Producing Co., 832 F.2d 326, 331 (5th Cir.1987); Marine Overseas Services, Inc. v. Crossocean Shipping Co., Inc., 791 F.2d 1227, 1236 (5th Cir.1986); Todd Shipyards Corp. v. Auto Transportation, S.A., 763 F.2d 745, 753 (5th Cir.1985). Thus the trial court’s imposition of prejudgment interest at the rate of ten percent per annum compounded daily was permissible. However, such interest should run from the date each item of past damages was incurred. See Farmland Industries, Inc. v. Andrews Transport Co., 888 F.2d 1066, 1068 (5th Cir.1989); Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1435 n. 16 (5th Cir.1988). Laeisz also contends that the inter-venor, Reliance Insurance Company, waived its right to prejudgment interest and therefore that the court erred in awarding such interest on $59,196.55, the amount paid by the intervenor in compensation and medical benefits" }, { "docid": "3804686", "title": "", "text": "circumstances would make such an award inequitable. Reeled Tubing, Inc. v. M/V CHAD G, 794 F.2d 1026, 1028 (5th Cir.1986); Ryan Walsh Stevedoring Co. v. James Marine Servs., Inc., 792 F.2d 489, 492 (5th Cir.1986). While the district court’s finding of peculiar circumstances is reviewed under the clearly erroneous standard (Noritake Co. v. M/V HELLENIC CHAMPION, 627 F.2d 724, 729 (5th Cir. Unit A 1980)), denial of prejudgment interest based on those peculiar circumstances “is reviewable under an ‘abuse of discretion’ standard.” P & E Boat Rentals, 872 F.2d at 655 (citing Inland Oil & Transp. Co. v. Ark-White Towing, 696 F.2d 321, 327 (5th Cir.1983)). In Reeled Tubing, we outlined some of the circumstances that justify denial of prejudgment interest: (1) an improper delay of the action caused by the plaintiff; (2) a genuine dispute over a good faith claim in a mutual fault setting; (3) equitable considerations which caution against an award; and (4) a damage award substantially less than that claimed by the plaintiff. 794 F.2d at 1028. In the instant case, the district court found that the following circumstances justified denial of prejudgment interest: (1) a genuine dispute as to liability between the parties, including applicability of the dock tariff; (2) complex issues of fact as to engineering and design criteria which the plaintiff introduced at trial; and (3) a judgment substantially less than the amount originally claimed. First, although a genuine liability dispute between the parties may have existed, it certainly was not a dispute that the plaintiff’s fault contributed to the loss. See Reeled Tubing, 794 F.2d at 1029 (limiting the genuine dispute exception to a mutual fault setting). Fault of at least one of the defendants was highly probable. Like in Reeled Tubing, “no more evidence of a ‘good faith’ dispute exists here than would exist in any nonfrivolous admiralty suit.” Id. Moreover, Orduna ultimately prevailed on all issues, including the nonapplicability of the dock tariff. Defendants further argue that in the past we often have denied prejudgment interest to plaintiffs without any showing of fault on their part. For example in P" }, { "docid": "1430558", "title": "", "text": "American Zinc Co. v. Foster, 441 F.2d 1100 (5th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 99, 30 L.Ed.2d 95 (1971); Socony Mobil Oil Co., 559 F.2d at 1014. Although this circuit’s authority on the subject addresses the propriety of prejudgment interest in tort cases, prejudgment interest is equally appropriate in breach of contract actions. Prejudgment interest is not a penalty, “but is in the nature of compensation for the use of funds.” Socony Mobil Oil Co., 559 F.2d at 1014. See also Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir. 1980) . Indeed, an admiralty court should deny prejudgment interest even more rarely in contract cases than in tort cases, at least where the contract claim is for a liquid debt. Van Nievelt, Goudriaan Co.'s Stoomvart Maatschappij v. Cargo & Tankship Management Corp., 421 F.2d 1183, 1185 (2d Cir. 1970) (reversing district court’s denial of prejudgment interest as an abuse of discretion). See also Doucette v. Vincent, 194 F.2d 834, 839 (1st Cir. 1952) (an admiralty decision applying Restatement of Contracts § 337, which would mandate prejudgment interest on liquidated contract claims); 3 Benedict on Admiralty § 419 (A. Knauth 6th ed. 1940) (“In admiralty, interest on claims arising out of breach of contract is a matter of right but the allowance of interest on damages in cases of collision, or other tort or for unliquidated damages, is always in the discretion of the court .... ”); The Atlanta, 82 F.Supp. 218, 239 (S.D.Ga.1948) (greater discretion in admiralty than in other branches of the law to award or deny prejudgment interest, but controlling factor is whether the claim is liquidated). We conclude, therefore, that F&S is entitled to prejudgment interest. AFFIRMED in part, REVERSED in part. . International Paint Co. v. M/V Mission Viking, 462 F.Supp. 899 (S.D.Ala.1978). . Order of Mar. 31, 1979. . Following the district court’s order reported at 426 F.Supp. 899, the court held a hearing to establish the priorities and correctness of various claims. The court gave the parties additional time to file affidavits respecting their claims (Order of" }, { "docid": "8966096", "title": "", "text": "prejudgment interest on damages for future medical costs. We remanded the prejudgment interest award because the district court had failed to explain its basis, indicating that prejudgment interest on awards for future loss was improper: One would normally expect any of an amount awarded that is aimed at compensating for future pain, suffering, or emotional loss to be included in the lump sum award itself without additional interest. Certainly any of the award that was designed to compensate for future medical payments should have been included in the fixed (pre-interest) sum in an amount that, if invested, would grow to equal the fees likely charged at future times. Id. at 573. In his dissent, Judge Aldrich agreed with the majority insofar as “[tjhere could be no occasion for adding seven years back interest at 12% ($23,000) to ‘fully compensate’ plaintiff for expenses not yet incurred.” Id. at 578 (Aldrich, J., dissenting). See also Williamson v. Handy Button Mach. Co., 817 F.2d 1290, 1298 (7th Cir.1987) (“[ijnterest is not available on lost future wages and pensions”); Pickle v. International Oilfield Divers, Inc., 791 F.2d 1237, 1241 (5th Cir.1986) (“a victorious plaintiff has not suffered any delay in payment of [future damages], whether they have been discounted to present value or not, and hence there should be no prejudgment interest allowed on them”), cert. denied, 479 U.S. 1059, 107 S.Ct. 939, 93 L.Ed.2d 989 (1987); Valley Line Co. v. Ryan, 771 F.2d 366, 377 (8th Cir.1985) (prejudgment interest improperly awarded on damages for future medical expenses); Deakle v. John E. Graham & Sons, 756 F.2d at 834 (no interest allowed on award for lost future wages); Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 491 (5th Cir.1985) (prejudgment interest may not be awarded with respect to future damages); Wyatt v. Penrod Drilling Co., 735 F.2d 951, 956 n. 4 (5th Cir.1984) (same); City of New York v. Bernstein, 332 F.2d at 1008 (“To the extent that there are elements of future losses which are represented in the final damages prejudgment interest is, of course, not appropriate.”). In the present case," }, { "docid": "23507319", "title": "", "text": "1026, 1028 (5th Cir.1986)). However, the district court should not have ordered prejudgment interest on all the damages recoverable from Lumar because some of them were to compensate for future (i.e., posttrial) harm. Martin v. Walk, Haydel & Associates, 794 F.2d 209, 212 (5th Cir.1986); Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 491 (5th Cir.1985). As in Martin, we remand this case so that the district court may apportion damages (both economic and other) between past and future harm and award prejudgment interest only on those damages that the plaintiff in question had incurred as of the initial judgment date. Lumar must pay prejudgment interest on so much of the $500,838.75 damages for which it is liable to Simeon in Simeon’s case against it as represents damages incurred prior to trial, and on so much of Mrs. Simeon’s $72,000 loss of consortium damages for which it is liable as represents damages incurred by her prior to trial, but Lumar may not recover in a contribution action against Smith any amount representing prejudgment interest paid to the Si-meons. Smith is not directly obligated to pay Simeon prejudgment interest and, as noted in part VI, supra, there has been no suggestion of any independent obligation running from Smith to Lumar requiring it to indemnify or share in damages for which Smith could not have been directly responsible. Conclusion In sum, we: (1) reject Smith’s claim that it is entitled to a new trial; (2) order a further remittitur to $600,000 of Simeon's pain and suffering damages in his action against Smith; (3) order a remittitur to $10,000 of Simeon’s future medical expense damages in his actions against Smith and Lumar ; (4) reject Simeon’s attack on the district court’s fixing of his pain and suffering damages at $450,000 in his action against Lumar; (5) affirm the district court’s unattacked award of contribution to Smith and against Lumar respecting Smith’s pretrial payments to Simeon; (6) sustain, as stated in part IV, supra, hereof, Simeon’s contention that the district court erred in making the judgment against Smith and Lumar entirely several," }, { "docid": "16064040", "title": "", "text": "in any way contribute to the loss, complete apportionment between the negligent parties, based on their respective degrees of fault, is the proper method for calculating and awarding damages in maritime cases. See generally Harrison v. Flota Mercante Grancolombiana, S.A., 577 F.2d 968, 981-82 (5th Cir.1978). The doctrines of intervening negligence and last clear chance should not be used to circumvent this “proportional fault” concept. We therefore decline Ste vens’ invitation to reverse the judgment of the court below on this ground. D. Did the District Court Improperly Award Prejudgment Interest to Aet-na? Stevens’ final claim is that, because much of the pre-trial delay in this case was attributable to Aetna’s 1980 appeal from the dismissal of its intervention petition, and because the case involved numerous parties and complex issues, the district court improperly awarded prejudgment interest to Aetna. We reject this claim on the basis of Noritake Co., Inc. v. M/V Hellenic Champion, 627 F.2d 724 (5th Cir. Unit A 1980), in which this court’s predecessor explained: As a general rule, prejudgment interest should be awarded in admiralty cases — not as a penalty, but as compensation for the use of funds to which the claimant was rightfully entitled. Discretion to deny prejudgment interest is created only when there are “peculiar circumstances” that would make it inequitable for the losing party to be forced to pay prejudgment interest____ ... Whether such circumstances exist is a question of fact, and the standard to be applied on review is the “clearly erroneous” standard____ But even if an appellant can demonstrate that it would be clearly erroneous to say that there are no peculiar circumstances, the appellant must further show that when the trial court declined the request to deny prejudgment interest, the trial court abused the discretion that was created by the peculiar circumstances. Id. at 728-29. Even assuming that Stevens is correct in asserting the existence of “peculiar circumstances” that might warrant the denial of prejudgment interest, Stevens has not shown that the court below abused its discretion in awarding prejudgment interest to Aetna. III. CONCLUSION On the basis of" }, { "docid": "17265242", "title": "", "text": "as follows: (1) Past wage loss: $89,604 (2) Future wage loss: $263,771.12 (3) Past medical expenses: $28,760 (4) Future medical expenses: $180,000 (5) Past pain and suffering: $75,000 (6) Future pain and suffering: $300,000 (6) Seacor’s vessel, the MISS KATHRYN, sustained damage as a result of the collision in the amount of $74,293.07. Seacor is entitled to receive from International Marine 65% of that sum, or the amount of $48,290.50. Pre-Judgment Interest In admiralty cases, the award of prejudgment interest is discretionary with the court, but is normally awarded unless specific circumstances are present that would make the award inequitable. The rate of prejudgment interest, as well the date from which it accrues, is also discretionary with the court. See Schoenbaum, Admiralty and Maritime Law § 5-21 (4th ed.). However, prejudgment interest is not allowed on future damages. See Martin v. Walk, Haydel, & Assoc., 794 F.2d 209 (5th Cir.1986). The Court finds that an award of pre-judgment interest is warranted on the Plaintiffs past damages at the rate of 5.5% from the date of the collision. The Court does not feel that it is appropriate for Seacor to receive prejudgment interest on its losses because its vessel, the MISS KATHRYN, was partially at fault in causing the collision. Summary On the basis of the above Findings of Fact and Conclusion of Law, the Court finds that the Plaintiff, Paul Duet, sustained damages due to the negligence of International Marine, LLC, and Seacor Marine, LLC, in the proportion of 65% to International Marine and 35% to Seacor Marine in the following amounts: (1) Past wage loss: $89,604 (2) Future wage loss: $263,771.12 (3) Past medical expenses: $28,760 (4) Future medical expenses: $180,000 (5) Past pain and suffering: $75,000 (6) Future pain and suffering: $300,000 The plaintiff is entitled to prejudgment interesting at the rate of 5.5% on the above mentioned past losses, totaling $193,364, from the date of the collision until paid. In addition, the plaintiff is also entitled to interest at the judicial rate on all future damages, totaling $743,771.12, from date of judgment until paid. Because the plaintiff" }, { "docid": "23216338", "title": "", "text": "this case, Great Lakes had been warned by local pilots’ association about the possibility of the exact type of collision that occurred (involving a ship shearing into the barge), yet Great Lakes chose to ignore the warnings, and may not even have passed the warnings on to the crew of the dredge Alaska. Furthermore, Great Lakes’ failure to maintain adequate safety devices and procedures on the Alaska may rise to the level of willfulness or recklessness. In light of these facts, we think that some specific determination about punitive damages must be made. We will leave the initial decision to the district court on remand. See Complaint of Merry Shipping, Inc., 650 F.2d 622 (5th Cir. Unit B July 1981) (remanding for findings on punitive damages). 4.Prejudgment Interest Again, the lower court opinion is silent about prejudgment interest. In general, prejudgment interest should be awarded in admiralty cases — not as a penalty, but as compensation for the use of funds to which the claimant was rightfully entitled. Discretion to deny prejudgment interest is created only when there are “peculiar circumstances” that would make it inequitable for the losing party to be forced to pay prejudgment interest. Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir. Unit 1980) (footnote and citations omitted). Although it is accepted practice to award prejudgment interest without making specific findings, see id. at 729, a denial of interest usually calls for specific findings. [I]n any admiralty case in which the trial court refuses to award prejudgment interest, the best practice would be for it to detail the peculiar circumstance it has found, and specifically indicate that it is denying prejudgment interest as an exercise of the discretion created by the existence of peculiar circumstances. Id. at 729 n. 4. In the absence of clear findings by the district court, an appellate court could search the record for “peculiar circumstances” and decide to award or deny prejudgment interest without a remand. See Noritake, 627 F.2d at 730 (awarding interest); Parker Towing Co. v. Yazoo River Towing, Inc., 794 F.2d 591, 594 (11th Cir.1986)" }, { "docid": "8966097", "title": "", "text": "Pickle v. International Oilfield Divers, Inc., 791 F.2d 1237, 1241 (5th Cir.1986) (“a victorious plaintiff has not suffered any delay in payment of [future damages], whether they have been discounted to present value or not, and hence there should be no prejudgment interest allowed on them”), cert. denied, 479 U.S. 1059, 107 S.Ct. 939, 93 L.Ed.2d 989 (1987); Valley Line Co. v. Ryan, 771 F.2d 366, 377 (8th Cir.1985) (prejudgment interest improperly awarded on damages for future medical expenses); Deakle v. John E. Graham & Sons, 756 F.2d at 834 (no interest allowed on award for lost future wages); Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 491 (5th Cir.1985) (prejudgment interest may not be awarded with respect to future damages); Wyatt v. Penrod Drilling Co., 735 F.2d 951, 956 n. 4 (5th Cir.1984) (same); City of New York v. Bernstein, 332 F.2d at 1008 (“To the extent that there are elements of future losses which are represented in the final damages prejudgment interest is, of course, not appropriate.”). In the present case, the jury made a lump sum award which included both past and future damages. We hold that prejudgment interest may properly be added to damage awards for past lost wages, medical expenses that have been incurred, and past pain and suffering; the date of the start of trial is the usual cut-off date. Prejudgment interest, however, is not to be factored into an award for damages for future loss of earnings, future medical expenses, and/or future pain and suffering. The case, therefore, must be remanded to the district court for determination of a remittitur in accord with this holding or, if plaintiff does not agree, for a new trial on damages. Approved in part, reversed in part. Remanded for further proceedings in accord herewith. Appellant is awarded 75% of his costs on appeal. . In actions at law under the Jones Act, recovery of prejudgment interest has been held to be impermissible. Theriot v. J. Ray McDermott & Co., 742 F.2d 877, 883 (5th Cir.1984). Prejudgment interest is generally available under admiralty law. See City" }, { "docid": "936627", "title": "", "text": "Noble Drilling Corp., 608 F.2d 169 (5th Cir. 1979), for the proposition that the allowance of prejudgment interest is the rule rather than the exception. We recently reaffirmed that rubric in Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir. 1980), wherein we stated: As a general rule, prejudgment interest should be awarded in admiralty cases— not as a penalty, but as compensation for the use of funds to which the claimant was rightfully entitled. Discretion to deny prejudgment interest is created only when there are “peculiar circumstances” that would make it inequitable for the losing party to be forced to pay prejudgment interest. See, e. g., Socony Mobil Oil Co. v. Texas Coastal & International, Inc., 559 F.2d 1008, 1014 (5th Cir. 1977); American Zinc Co. v. Foster, 441 F.2d 1100, 1101 (5th Cir.), cert. denied sub nom. Ingalls Shipbuilding Division of Litton Systems, Inc. v. American Zinc Co., 404 U.S. 855, 92 S.Ct. 99, 30 L.Ed.2d 95 (1971). (Footnote omitted.) But a denial of prejudgment interest is not in itself an abuse of discretion. As we stated in Noritake: If the, trial court explicitly denies prejudgment interest (rather than merely omitting any reference to it), then this is based on a factfinding that peculiar circumstances exist; the factfinding is sometimes explicitly set out, with the peculiar circumstances detailed in the court’s findings of fact and conclusions of law, or it may be implicit in the denial of prejudgment interest without a listing of the circumstances. If the trial court was not clearly erroneous in finding that peculiar circumstances exist, then its denial of prejudgment interest was discretionary. In most instances, we have not found such a denial to be an abuse of discretion. 627 F.2d at 729 (footnote omitted). In the present case, the trial judge made no reference to prejudgment interest in the initial judgment or in the findings of fact and conclusions of law. However, Pluyer filed a post-trial motion seeking a modification of the judgment to provide for, inter alia, prejudgment interest and a specific rate for the interest awarded. The trial" }, { "docid": "6479528", "title": "", "text": "under the Jones Act, the recovery of prejudgment interest is not permitted. See Theriot v. J. Ray McDermott, 742 F.2d 877 (5th Cir.1984). Nevertheless, the same rule does not apply to Jones Act cases brought under the court’s admiralty jurisdiction, tried without a jury. Pursuant to the court’s admiralty jurisdiction invoked under the Federal Rules of Civil Procedure 9(h), when a Jones Act case is brought under the court’s admiralty jurisdiction, and the case is tried to the Court and not to a jury, an allowance of prejudgment interest is within the discretion of the trial court, even if there is not a finding of unseaworthiness. See Williams v. Reading and Bates Drilling Co., 750 F.2d 487 (5th Cir.1985); Doucet v. Wheless Drilling, 467 F.2d 336 (5th Cir.1972). The Court finds that an award of prejudgment interest from date of judicial demand is appropriate in this case at the rate of 4.9% on the plaintiffs past damages as a described above. See Martin v. Walk, Haydel & Assoc., 794 F.2d 209 at 212 (5th Cir.1986). TV. SUMMARY On the basis of the following findings of fact and conclusions of law, the Court finds that plaintiff, Robert R. Bush, has sustained damages in the following amounts: Past earnings loss .13,000.00 Future earnings loss. 25,000.00 Past medical expenses.6,500.00 Future medical expenses .20,000.00 Pain and suffering, past, present and future.:.130,000.00 TOTAL LOSS.$194,500.00 The defendant Diamond is liable to the plaintiff for the total of these losses with prejudgment interest from the date of judicial demand for the amount representing the past losses and interest from the date of judgment for future losses." }, { "docid": "8603175", "title": "", "text": "L.Ed.2d 194 (1973). At trial, Bell satisfied the requirements by testifying that he was the custodian of the documents, by properly identifying the documents, and by testifying that they were prepared pursuant to federal regulations. 3. Prejudgment Interest In admiralty, prejudgment interest, although within the district court’s discretion, should be awarded as a general rule. Masters v. Transworld Drilling Co., 688 F.2d 1013, 1014 (5th Cir.1982). “Discretion to deny prejudgment interest is created only where there are ‘peculiar circumstances’ that would make it inequitable for the losing party to be forced to pay prejudgment interest.” Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 728 & n. 3 (5th Cir.1980) (noting that prejudgment interest may be denied, for example, in cases involving genuine dispute over good faith claim in mutual fault setting, improper delaying tactics by claimant, laches, or estoppel). Central Gulf claims that it is inequitable to award prejudgment interest in this case, because CCC intended to donate the soybean oil and did not replace the cargo. We cannot agree with Central Gulf. CCC suffered a loss inasmuch as it lost the use of the funds it had borrowed to purchase the missing soybean oil. Central Gulf cannot use CCG’s humanitarian orientation to avoid damages otherwise properly awarded. Furthermore,' it was within the district court’s discretion to set the rate of prejudgment interest at the rate that CCC paid to the Treasury Department. See Sabine Towing and Transportation Co. v. Zapata Ugland Drilling, Inc., 553 F.2d 489 (5th Cir.1977), cert. denied, 434 U.S. 855, 98 S.Ct. 175, 54 L.Ed.2d 127 (1977). AFFIRMED. . Even if we agreed with Central Gulf that the standing regulation is invalid and title was dis-positive, the United States would still have standing. The agreement between CLUSA and AID provides that \"title to goods shall pass to CLUSA FAS vessel (i.e., ex-ships-tackle), port of entry, India.” In other words, title passed at delivery in India. See U.C.C. § 2-319(2)(b) (1978); see also T.J. Stevenson & Co. v. 81,193 Bags of Flour, 629 F.2d 338 (5th Cir.1980). Fur thermore, CLUSA assigned any rights it might have" }, { "docid": "8966098", "title": "", "text": "the jury made a lump sum award which included both past and future damages. We hold that prejudgment interest may properly be added to damage awards for past lost wages, medical expenses that have been incurred, and past pain and suffering; the date of the start of trial is the usual cut-off date. Prejudgment interest, however, is not to be factored into an award for damages for future loss of earnings, future medical expenses, and/or future pain and suffering. The case, therefore, must be remanded to the district court for determination of a remittitur in accord with this holding or, if plaintiff does not agree, for a new trial on damages. Approved in part, reversed in part. Remanded for further proceedings in accord herewith. Appellant is awarded 75% of his costs on appeal. . In actions at law under the Jones Act, recovery of prejudgment interest has been held to be impermissible. Theriot v. J. Ray McDermott & Co., 742 F.2d 877, 883 (5th Cir.1984). Prejudgment interest is generally available under admiralty law. See City of Boston v. S.S. Texaco Texas, 773 F.2d 1396, 1401 (1st Cir.1985). The Fifth Circuit has ruled that where a jury awards damages on Jones Act and unseaworthiness claims without allocating the award between the claims, the plaintiff is not entitled to prejudgment interest. Colburn v. Bunge Towing, Inc., 883 F.2d 372, 378 (5th Cir.1989); McPhillamy v. Brown & Root, Inc., 810 F.2d 529, 532 (5th Cir.1987); Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 491 (5th Cir.1985); Wyatt v. Penrod Drilling Co., 735 F.2d 951, 956 (5th Cir.1984). Defendant here appeals not the imposition of prejudgment interest itself but the district court’s application of such interest to the entire damages award. We therefore do not decide whether prejudgment interest was improperly awarded on a combined Jones Act-admiralty award." }, { "docid": "1430557", "title": "", "text": "With respect to F&S’s claim of subrogation to the lien in favor of its employees, one who advances money to pay crew’s wages is entitled to a maritime lien of the same rank. Bank of New Orleans and Trust Co. v. Oil Screw Tracy Marie, 455 F.Supp. 78, 80 (W.D.La.), aff’d, 580 F.2d 808 (5th Cir. 1978). By paying the salaries of its employees F&S was subrogated to their priority lien against the Mission Viking. Prejudgment interest The district court denied prejudgment interest on the award of F&S’s claim for crew’s wages. Although an admiralty court has discretion to grant or deny prejudgment interest, “[t]he general rule in admiralty cases is that prejudgment interest should be awarded” absent “peculiar circumstances.” E. g., Dow Chemical Co. v. M/V Gulf Seas, 593 F.2d 613, 614 (5th Cir. 1979) ; Socony Mobil Oil Co. v. Texas Coastal and International, Inc., 559 F.2d 1008, 1014 (5th Cir. 1977). The trial court’s discretion is thus limited, and this circuit has reversed denials of prejudgment interest in appropriate cases. E. g., American Zinc Co. v. Foster, 441 F.2d 1100 (5th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 99, 30 L.Ed.2d 95 (1971); Socony Mobil Oil Co., 559 F.2d at 1014. Although this circuit’s authority on the subject addresses the propriety of prejudgment interest in tort cases, prejudgment interest is equally appropriate in breach of contract actions. Prejudgment interest is not a penalty, “but is in the nature of compensation for the use of funds.” Socony Mobil Oil Co., 559 F.2d at 1014. See also Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir. 1980) . Indeed, an admiralty court should deny prejudgment interest even more rarely in contract cases than in tort cases, at least where the contract claim is for a liquid debt. Van Nievelt, Goudriaan Co.'s Stoomvart Maatschappij v. Cargo & Tankship Management Corp., 421 F.2d 1183, 1185 (2d Cir. 1970) (reversing district court’s denial of prejudgment interest as an abuse of discretion). See also Doucette v. Vincent, 194 F.2d 834, 839 (1st Cir. 1952) (an admiralty decision applying Restatement" }, { "docid": "9959217", "title": "", "text": "the Court finds that an award of prejudgment interest would be patently unfair. In those cases where prejudgment interest is available, the trial judge has discretion to deny such an award where there are “ ‘peculiar circumstances’ that would make it inequitable for the losing party to be forced to pay prejudgment interest.” Oglebay Norton Co. v. CSX Corp., 788 F.2d 361, 368 (6th Cir.), cert. denied, 479 U.S. 849, 107 S.Ct. 173, 93 L.Ed.2d 109 (1986) (quoting Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir.1980)). In a later case, the Fifth Circuit listed several situations where “peculiar circumstances” exist: Peculiar circumstances may be found where plaintiff improperly delayed resolution of the action, where a genuine dispute over a good faith claim exists in a mutual fault setting, where some equitable doctrine cautions against the award, or where the damages award was substantially less than the amount claimed by plaintiff. Reeled Tubing, Inc. v. M/V Chad G, 794 F.2d 1026, 1028 (5th Cir.1986) (emphasis added). The present ease arguably involves a “genuine dispute over a good faith claim ... in a mutual fault setting.” Id. This seems to be the basis upon which the District Court based its decision to deny plaintiffs’ request for prejudgment interest. Because we question whether the “mutual fault” rationale remains a viable basis on which to rest a denial of an award of prejudgment interest, we find it necessary to reach the issue of whether prejudgment interest is available in this case. With respect to Jones Act cases, this Court has noted that “[i]n a seaman’s action to recover for personal injury or death, the general rule is that interest is awarded ‘from the date that the damages have been judicially determined,’ and not prejudgment interest from the date of injury.” Oglebay, 788 F.2d at 367 (quoting Cleveland Tankers, Inc. v. Tierney, 169 F.2d 622, 626 (6th Cir.1948)). By contrast, in admiralty cases where recovery for property damage is sought, prejudgment interest is awarded absent “peculiar circumstances.” Oglebay, 788 F.2d at 367-68. The law is not as clear with respect to" }, { "docid": "7453988", "title": "", "text": "As the Randolphs correctly point out, one measure of prejudgment interest that has been upheld as within a trial court’s discretion is the prejudgment interest rate of the state in which the court sits. Bartholomew v. CNG Producing Co., 832 F.2d 326, 331 (5th Cir.1987); Marine Overseas Services, Inc. v. Crossocean Shipping Co., Inc., 791 F.2d 1227, 1236 (5th Cir.1986); Todd Shipyards Corp. v. Auto Transportation, S.A., 763 F.2d 745, 753 (5th Cir.1985). Thus the trial court’s imposition of prejudgment interest at the rate of ten percent per annum compounded daily was permissible. However, such interest should run from the date each item of past damages was incurred. See Farmland Industries, Inc. v. Andrews Transport Co., 888 F.2d 1066, 1068 (5th Cir.1989); Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1435 n. 16 (5th Cir.1988). Laeisz also contends that the inter-venor, Reliance Insurance Company, waived its right to prejudgment interest and therefore that the court erred in awarding such interest on $59,196.55, the amount paid by the intervenor in compensation and medical benefits and recovered by it. Laeisz points to no place in the record indicating such waiver by the intervenor and this Court’s independent review of the record reveals no evidence of such a waiver. The judgment grants a total past actual damages award to Randolph of $211,-235.82 to which the ten percent interest rate is attached. Thereafter, the judgment orders Randolph to reimburse Reliance in the amount of $59,196.55 and is silent as to interest. We find it implicit in the judgment that the proportionate interest earned on the sum owed to Reliance should be paid to Reliance and not retained by Randolph. Thus there is no “double recovery” for Randolph. See Webster v. M/V Moolchand, Sethia Liners, Ltd., 730 F.2d 1035, 1041 (5th Cir.1984); Howell v. Marmpegaso Compania Naviera, 578 F.2d 86, 87 (5th Cir.1978). Severance The Randolphs’ action against Laeisz had been in discovery for more than three years and was set for trial April 14, 1988 when Laeisz joined ITO as a third party defendant on January 8, 1988. Fed. R.Civ.P. 42 provides" } ]

[ { "docid": "1376104", "title": "", "text": "intention, which was to impose a sentence of seven years on the first count and five years on the second. This question is not a new one. The Sixth and Ninth Circuits have held that the Lange rule must be applied. Dug-gins v. United States, 240 F.2d 479 (6th Cir. 1957); Kennedy v. United States, 330 F.2d 26 (9th Cir. 1964). Cf. United States v. Adams, 362 F.2d 210 (6th Cir. 1966). Dicta in the First Circuit is in accord, Ekberg v. United States, 167 F.2d 380 (1st Cir. 1948), as is also dicta in the Fourth Circuit, United States v. Magliano, 336 F.2d 817 (4th Cir. 1964). Although there are no cases in point in this circuit, an analogous situation was presented in Miller v. United States, 147 F.2d 372 (2d Cir. 1945). Defendant there was sentenced on two counts to run consecutively. After serving part of the sentence, he moved to correct the sentence on the ground that the offense charged in the second count was a lesser included offense of that charged in the first count. This court agreed and ruled that the sentence under the second count was void; it held further that defendant could not be resentenced on the first count even though the statutory maximum for that offense exceeded the total of the sentences originally imposed on the two counts consecutively. To the same effect is United States v. Chiarella, 214 F.2d 838 (2d Cir.), cert. denied, 348 U.S. 902, 75 S.Ct. 226, 99 L.Ed. 708 (1954). There is one case in point reaching a contrary result. Phillips v. Biddle, 15 F.2d 40 (8th Cir. 1926), cert. denied, 274 U.S. 735, 47 S.Ct. 576, 71 L.Ed. 1311 (1927). We note that the Eighth Circuit in its opinion made no effort to explain or distinguish Ex Parte Lange and, in fact, did not mention it. We are of the opinion that a judge should not be permitted to increase a sentence clearly and explicitly imposed, after the prisoner has begun to serve it, even though the judge later recollects that he had intended at the" } ]

[ { "docid": "22903944", "title": "", "text": "29 L.Ed.2d 120 (1971) (Trial judge had the power to recall defendant several hours later to impose a corrected sentence which judge clearly intended to impose originally.); Williams v. United States, 422 F.2d 1318 (5th Cir. 1970) (Defendant, originally sentenced to concurrent terms of four years each on two counts, who had not yet commenced service of sentence may be recalled for imposition of consecutive sentences.); Vincent v. United States, 337 F.2d 891, 894 (8th Cir. 1964), cert. denied, 380 U.S. 988, 85 S.Ct. 1363, 14 L.Ed.2d 281 (1965) (Court had the power to resentence the defendant increasing the severity of the sentence so long as it was done prior to commencement of service.); United States v. Byars, 290 F.2d 515, 516 (6th Cir.), cert. denied, 368 U.S. 905, 82 S.Ct. 185, 7 L.Ed.2d 99 (1961) (Where service of sentence had not begun, “the district judge had the power to resentence the defendant increasing its severity.”); Acme Poultry Corp. v. United States, 146 F.2d 738, 739 (4th Cir. 1944), cert. denied, 324 U.S. 860, 65 S.Ct. 865, 89 L.Ed. 1417 (1945) (Where no part of fine paid nor service of sentence commenced, there is no basis for saying that “[defendant] is subjected to double punishment because the sentence is increased ... during the term.”). In contrast to acquittals, the practice, at least in most of the federal courts, has never protected any defendant who has had what appeared to be a final sentence imposed upon him from the possibility of having that sentence later increased. Since our decision in United States v. Bozza, supra, this court, however, has had before it a number of cases which have held that an increase in the severity of punishment upon resentencing offended the Double Jeopardy Clause. In United States v. Fredenburgh, 602 F.2d 1143 (3d Cir. 1979), the defendant had been convicted on 13 counts charging misapplication of bank funds, a conspiracy count, and two counts charging the making of false statements in bank loan applications and sentenced on all counts. On appeal, the convictions on all counts except those for making false" }, { "docid": "17212600", "title": "", "text": "valid punishment for an offense instead of an invalid punishment for that offense.” In following Bozza, the Court of Appeals for the District of Columbia in Hayes v. United States, 1957, 249 F.2d 516, certiorari denied 356 U.S. 914, 78 S.Ct. 672, 2 L.Ed.2d 586, approved the increase, after two months, of an original sentence providing for confinement of from thirty to ninety months to a mandatory ten-year sentence. In doing so, the court stated, at pages 517-518: “It seems clear that if the March 8 sentence were valid it could not be augmented once defendant had begun to serve it. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354; Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872; United States v. Rosenstreich, 2 Cir., 204 F.2d 321; Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499. It also seems clear that, if the sentence were invalid and defendant successfully attacked it, he could be validly resentenced though the resentence increased the punishment. The defendant in such case is held to have waived his protection against double jeopardy. (Citations omitted.) * * * ****** “We are persuaded also that a sentence which does not conform with the applicable statute may be corrected though defendant has not appealed from the judgment embodying the invalid sentence, has begun to serve it, and steps to correct it are not initiated by him but by the Government.” See also Mathes v. United States, 9 Cir., 1958, 254 F.2d 938, and Cook v. United States, 1 Cir., 1948, 171 F.2d 567, certiorari denied 336 U.S. 926, 69 S.Ct. 647, 93 L.Ed. 1088. We conclude here that the original sentence imposed on Count 6 was erroneous and a nullity, it being for less than the minimum period provided in § 174, Title 21 U.S.C.A. Being an erroneous sentence, it could be corrected at any time. The trial court was entirely within its jurisdiction so to do. In fact, that was the trial court’s duty. In the performance of that duty, the appellant was no more placed in double jeopardy" }, { "docid": "13209394", "title": "", "text": "contends that the Notice of Appeal does not reach the conviction itself, and, therefore, that insofar as there is an attempt to appeal from an order denying a pretrial motion to suppress evidence the attempt must fail. Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442, holds that the denial of a motion to suppress is not appealable independently, though a question of error in such denial may be considered on appeal from the judgment of conviction. Since, however, the Notice of Appeal is directed to “the order of MAY 8, 1957 amending the order of March 8, 1957,” it may be suggested that the appeal reaches the judgment of conviction of March 8, 1957, on the ground that the latter is brought forward as part of the amending order of May 8, 1957, which clearly is within the Notice of Appeal. But in the end such a construction of the scope of the appeal would not help appellant, for we find no error in the denial of the motion to suppress. Defendant supplied no evidence to support the bare motion filed by his attorney. There is no question as to the validity and timeliness of the appeal from the order of May 8, 1957. The question is whether the District Court, Judge Keech sitting, following procedure the appropriateness of which is not in dispute, could augment the March 8 sentence without offending the Fifth Amendment provision against placing a person twice in jeopardy for the same offense. * * * * * It seems clear that if the March 8 sentence were valid it could not be augmented once defendant had begun to serve it. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354; Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872; United States v. Rosenstreich, 2 Cir., 204 F.2d 321; Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499. It also seems clear that, if the sentence were invalid and defendant successfully attacked it, he could be validly resentenced though the resentence increased the punishment. The" }, { "docid": "23281128", "title": "", "text": "Corp. v. United States, 146 F.2d 738, 739 (4th Cir. 1944), cert. denied, 324 U.S. 860, 65 S.Ct. 865, 89 L.Ed. 1417 (1945); Williams v. United States, 422 F.2d 1318, 1318 (5th Cir.1970); United States v. Busic, 639 F.2d 940, 948 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); Neidinger v. United States, 647 F.2d 408, 410 (4th Cir.), cert. denied, 454 U.S. 859, 102 S.Ct. 311, 70 L.Ed.2d 155 (1981). As we said in an earlier case: The power of the judge to modify or set aside judgments during the term is an ancient one and founded upon the soundest reasons. Upon more mature consideration he may, and frequently does, decide that a sentence imposed during the term should be lightened or increased. He may learn additional facts about a case which show the original sentence to be entirely inadequate or unreasonably harsh; and, if the mere incorporation in the sentence of [a provision that the defendant enter immediately upon service of the sentence] is to deprive him of further power over the case, the greatest embarrassments in the administration of justice and the greatest hardships may result, for the judge would be powerless to reduce a sentence which he thought excessive, or grant a new trial to a prisoner shown to be innocent, even though such prisoner were in the courtroom and actually at the bar of the court. He would likewise be powerless to increase punishment, although it should develop that the sentence originally imposed was entirely inadequate. Cisson, 37 F.2d at 332. At the same time we have repeatedly stated that a “limitation upon this power is that the sentence may not be increased if a fine has been paid or if the defendant has entered upon the service of a term of imprisonment.” Acme Poultry, 146 F.2d at 739; Neidinger, 647 F.2d at 410; Cisson, 37 F.2d at 332; see Benz, 282 U.S. at 307, 51 S.Ct. at 114. Although we have not had occasion to reverse a trial court’s enhancement of sentence for having been ordered after commencement" }, { "docid": "2311831", "title": "", "text": "of the United States. In support of his contention, he cites the following cases: Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1973); United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928); United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499 (1940); Acme Poultry Corp. v. United States, 4 Cir., 146 F.2d 738 (1944), cert. den. 324 U.S. 860, 65 S.Ct. 865, 89 L.Ed. 1417; Oxman v. United States, 8 Cir., 148 F.2d 750 (1945); United States v. Rosenstreich, 2 Cir., 204 F.2d 321 (1953); United States v. Chiarella, 2 Cir., 214 F.2d 838 (1954), cert. den. 348 U.S. 902, 75 S.Ct. 226, 99 L.Ed. 708; Deutschmann v. United States, 9 Cir., 254 F.2d 487 (1958), cert. den. 357 U.S. 928, 78 S.Ct. 1377, 2 L.Ed.2d 1374; Aga v. United States, 8 Cir., 312 F.2d 637 (1963); United States v. Sacco, 2 Cir., 367 F.2d 368 (1966); Schultz v. United States, 5 Cir., 384 F.2d 374 (1967); Sullens v. United States, 5 Cir., 409 F.2d 545 (1969). A good statement of the general rule established by these cases is found in the Rosenstreich opinion where the Court said: “It is well settled that, thanks to the double-jeopardy provision of the Fifth Amendment, a federal court may not increase (a) a sentence of imprisonment, once execution of the sentence has begun, or (b) a sentence to pay a fine, after the fine first imposed has been paid . . . ” 204 F.2d, at 321. This rule applies to cases where the first sentence is a legal one. The following quotations show that the law is different where the first sentence is illegal. “ . . . The Constitution does not require that sentencing should be a game in which a wrong move by a judge means immunity for the prisoner. See King v. United States, 69 App.D.C. 10, 98 F.2d 291, 296. In this case the court ‘only set aside what it had no authority to do," }, { "docid": "2311833", "title": "", "text": "and substitute[d] directions required by law to be done upon conviction of the offender.’ In re Bonner, supra, 151 U.S. [242] at page 260, 14 S.Ct. [323] at page 327, 38 L.Ed. 149. It did not twice put the petitioner in jeopardy for the same offense. The sentence, as corrected imposes a valid punishment for an offense instead of an invalid punishment for that offense.” Bozza v. United States, 330 U.S. 160, 167, 67 S.Ct. 645, 649, 91 L.Ed. 818, 822 (1947). “Concededly, in the present case, as in Bozza, the prisoner had begun to serve an illegal punishment. In Bozza, however, the court had no choice under the statute but to increase the sentence, because the original penalty had been too light. The conflict between Lange, which forbids a heavier punishment, and the statute, which required it, could not be resolved. If an exception was not made to Lange, no legal sentence could be imposed . . ..” Sullens v. United States, supra, 409 F.2d at page 548. The following is quoted from the footnote to the sentence above quoted from the Rosenstreich case: “Nor are eases in point which hold valid a sentence heavier than the original sentence where the latter was ruled to be invalid on defendant’s suit, Murphy v. Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711, or where the original sentence was invalid because of the failure to impose the required minimum penalties, Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818. Of course, reduction of a sentence partly executed is not invalid, United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354.” 204 F.2d at 322. Where the punishment imposed by the court in a criminal case does not conform to the applicable penalty statute, it is illegal. Bozza v. United States, supra; Reyes v. United States, 5 Cir., 262 F.2d 801 (1959); Caille v. United States, supra; Tanner v. United States, 5 Cir., 493 F.2d 1350 (1974); Hayes v. United States, 102 U.S.App.D.C. 1, 249 F.2d 516 (1957); Deutsehmann v. United States, 9 Cir.," }, { "docid": "2311832", "title": "", "text": "Cir., 384 F.2d 374 (1967); Sullens v. United States, 5 Cir., 409 F.2d 545 (1969). A good statement of the general rule established by these cases is found in the Rosenstreich opinion where the Court said: “It is well settled that, thanks to the double-jeopardy provision of the Fifth Amendment, a federal court may not increase (a) a sentence of imprisonment, once execution of the sentence has begun, or (b) a sentence to pay a fine, after the fine first imposed has been paid . . . ” 204 F.2d, at 321. This rule applies to cases where the first sentence is a legal one. The following quotations show that the law is different where the first sentence is illegal. “ . . . The Constitution does not require that sentencing should be a game in which a wrong move by a judge means immunity for the prisoner. See King v. United States, 69 App.D.C. 10, 98 F.2d 291, 296. In this case the court ‘only set aside what it had no authority to do, and substitute[d] directions required by law to be done upon conviction of the offender.’ In re Bonner, supra, 151 U.S. [242] at page 260, 14 S.Ct. [323] at page 327, 38 L.Ed. 149. It did not twice put the petitioner in jeopardy for the same offense. The sentence, as corrected imposes a valid punishment for an offense instead of an invalid punishment for that offense.” Bozza v. United States, 330 U.S. 160, 167, 67 S.Ct. 645, 649, 91 L.Ed. 818, 822 (1947). “Concededly, in the present case, as in Bozza, the prisoner had begun to serve an illegal punishment. In Bozza, however, the court had no choice under the statute but to increase the sentence, because the original penalty had been too light. The conflict between Lange, which forbids a heavier punishment, and the statute, which required it, could not be resolved. If an exception was not made to Lange, no legal sentence could be imposed . . ..” Sullens v. United States, supra, 409 F.2d at page 548. The following is quoted from the" }, { "docid": "11158400", "title": "", "text": "beyond his lawful powers. Reversed. . Ex parte Lange, 18 Wall. 163, 173, 21 L.Ed. 872; In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500. See also United States v. Benz, 282 U.S. 304, 306, 51 S.Ct. 113, 75 L.Ed. 354; De Maggio v. Coxe, 2 Cir., 70 F.2d 840; Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499, 501; Acme Poultry Corp. v. United States, 4 Cir., 146 F.2d 738, 739; cf. Frankel v. United States, 6 Cir., 131 F.2d 756, 758-759. Decisions are not in point which hold that a sentence may be increased on the same day that the original sentence was imposed and while defendant was still in the courthouse; for, in such a situation, the execution had not started. See, e. g., Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499; Oxman v. United States, 8 Cir., 148 F.2d 750, 159 A.L.R. 155; De Maggio v. Coxe, 2 Cir., 70 F.2d 840. Nor are cases in point which hold valid a sentence heavier than the original sentence where the latter was ruled to be invalid on defendant’s suit, Murphy v. Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711, or where the original sentence was invalid because of the failure to impose the required minimum penalties, Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818. Of course, reduction of a sentence partly executed is not invalid. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354. . Cooper v. United States, 5 Cir., 91 F.2d 195, 199; Nix v. United States, 5 Cir., 131 F.2d 857, 858; cf. Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41. . Sanford v. King, 5 Cir., 136 F.2d 106, 108. AUGUSTUS N. HAND, Circuit Judge (concurring). The majority opinion holds that placing the defendant on probation started the execution of his sentence. I think there may be some doubt about this, since three Justices of the Supreme Court have indicated that there is no constitutional bar to increasing a sentence if probation has" }, { "docid": "8718953", "title": "", "text": "pending hearing of defendant’s motion for new trial. On April 29, 1960, defendant, by motion to correct judgment, asked that the Judgment and Commitment of March 30, 1960, be corrected by striking therefrom the provision that the sentences thereby imposed were to run consecutively to the earlier sentence. Such motion was bottomed upon the conflict between the sentences as announced in open court and those recited in the Judgment and Commitment. On September 29, 1960, the defendant and his counsel were in open court and the district judge announced his decision on various pending motions. His oral discussion stated his conclusion that the portion of his previous Judgment and Commitment which provided that the sentences imposed should run consecutively to an earlier sentence, “must be stricken.” He then announced his opinion that inasmuch as the defendant had not commenced service of the sentences originally imposed, the court still had the power to make such change in the sentences as he considered appropriate. He thereupon again imposed concurrent sentences of three years on each count and directed that such sentences be served consecutively to the sentence previously imposed for another offense. Defendant argues that the court was without power to do this. The defendant had not then, and still has not, begun service of any sentence imposed for the conviction here involved. Under such circumstances, the district judge had the power to resentence the defendant, increasing its severity. Cisson v. United States, 4 Cir., 1930, 37 F.2d 330, 332; Hatem v. United States, 4 Cir., 1930, 42 F.2d 40, certiorari denied 282 U.S. 887, 51 S.Ct. 103, 75 L.Ed. 782; Acme Poultry Corp. v. United States, 4 Cir., 1944, 146 F.2d 738, certiorari denied 324 U.S. 860, 65 S.Ct. 865, 89 L.Ed. 1417; Kelley v. United States, 4 Cir., 1956, 235 F.2d 44; Rowley v. Welch, 1940, 72 App.D.C. 351, 114 F.2d 499. Failure to accord defendant opportunity to make statement prior to sentence. Prior to the open court imposition of sentence on March 30, 1960, there was an extended colloquy between the court and defense counsel, but it does not" }, { "docid": "11158399", "title": "", "text": "FRANK, Circuit Judge. It is well settled that, thanks to the double-jeopardy provision of the Fifth Amendment, a federal court may not increase (a) a sentence of imprisonment, once execution of the sentence has begun, or (b) a sentence to pay a fine, after the fine first imposed has been paid. We think that, for this purpose at least, probation— which has been called an “authorized mode of mild and ambulatory punishment” — should be deemed the equivalent of imprisonment. A probationary period starts when the judge imposes sentence. It is suggested that here it did not commence until the probation officer in New York was advised of the sentence; but assuming, arguendo, the cogency of this suggestion in appropriate circumstances, it has no relevance here since such advise had been given to the officer previous to July 8. We think that the sentence imposed on June 30 must be considered a unit. Accordingly, it had been executed in part before July 8, and the judge’s action oh that date, by augmenting the fine, was beyond his lawful powers. Reversed. . Ex parte Lange, 18 Wall. 163, 173, 21 L.Ed. 872; In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500. See also United States v. Benz, 282 U.S. 304, 306, 51 S.Ct. 113, 75 L.Ed. 354; De Maggio v. Coxe, 2 Cir., 70 F.2d 840; Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499, 501; Acme Poultry Corp. v. United States, 4 Cir., 146 F.2d 738, 739; cf. Frankel v. United States, 6 Cir., 131 F.2d 756, 758-759. Decisions are not in point which hold that a sentence may be increased on the same day that the original sentence was imposed and while defendant was still in the courthouse; for, in such a situation, the execution had not started. See, e. g., Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499; Oxman v. United States, 8 Cir., 148 F.2d 750, 159 A.L.R. 155; De Maggio v. Coxe, 2 Cir., 70 F.2d 840. Nor are cases in point which hold valid a sentence heavier than the original sentence" }, { "docid": "2311830", "title": "", "text": "a motion for reconsideration of the order of November 27th on the ground that the opinion in Caille v. United States, supra, handed down on November 26, 1973, supported his contention that the special parole term could not be added without his being afforded an opportunity to be present. At a hearing on the motion held on December 17, 1973, with Llerena and his counsel and an Assistant United States Attorney present, the Court set aside the corrected judgment of June 4th and sentenced Llerena to eighteen months imprisonment with a special parole term of three years added thereto. Judgment dated December 17, 1973, but effective nunc pro tunc as of October 5, 1971, the date of the original judgment, was entered accordingly. The last judgment cured the defects which had been fatal to the two previous ones; but Llerena here claims that it should be set aside because it was pronounced after he had discharged the eighteen months prison sentence, and therefore violated the double jeopardy provisions of the Fifth Amendment to the Constitution of the United States. In support of his contention, he cites the following cases: Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1973); United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928); United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499 (1940); Acme Poultry Corp. v. United States, 4 Cir., 146 F.2d 738 (1944), cert. den. 324 U.S. 860, 65 S.Ct. 865, 89 L.Ed. 1417; Oxman v. United States, 8 Cir., 148 F.2d 750 (1945); United States v. Rosenstreich, 2 Cir., 204 F.2d 321 (1953); United States v. Chiarella, 2 Cir., 214 F.2d 838 (1954), cert. den. 348 U.S. 902, 75 S.Ct. 226, 99 L.Ed. 708; Deutschmann v. United States, 9 Cir., 254 F.2d 487 (1958), cert. den. 357 U.S. 928, 78 S.Ct. 1377, 2 L.Ed.2d 1374; Aga v. United States, 8 Cir., 312 F.2d 637 (1963); United States v. Sacco, 2 Cir., 367 F.2d 368 (1966); Schultz v. United States, 5" }, { "docid": "2311834", "title": "", "text": "footnote to the sentence above quoted from the Rosenstreich case: “Nor are eases in point which hold valid a sentence heavier than the original sentence where the latter was ruled to be invalid on defendant’s suit, Murphy v. Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711, or where the original sentence was invalid because of the failure to impose the required minimum penalties, Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818. Of course, reduction of a sentence partly executed is not invalid, United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354.” 204 F.2d at 322. Where the punishment imposed by the court in a criminal case does not conform to the applicable penalty statute, it is illegal. Bozza v. United States, supra; Reyes v. United States, 5 Cir., 262 F.2d 801 (1959); Caille v. United States, supra; Tanner v. United States, 5 Cir., 493 F.2d 1350 (1974); Hayes v. United States, 102 U.S.App.D.C. 1, 249 F.2d 516 (1957); Deutsehmann v. United States, 9 Cir., 254 F.2d 487 (1958); Mathes v. United States, 9 Cir., 254 F.2d 938 (1958); Orrie v. United States, 8 Cir., 302 F.2d 695 (1962); United States v. Thomas, E.D.N.Y., 356 F.Supp. 173, affirmed, 2 Cir., 474 F.2d 1336 (1973); Garcia v. United States, 10 Cir., 492 F.2d 395 (1974); Thompson v. United States, 1 Cir., 495 F.2d 1304 (1974). Caille, Tanner, Thomas, Garcia and Thompson were cases where the mandatory special parole term under the Comprehensive Drug Abuse Prevention and Control Act of 1970 was inadvertently omitted from the original sentence and was later added by corrective judgment. When the sentencing court discovers that a sentence imposed by it did not conform to the applicable penalty statute, it has the duty to correct the sentence so as to comply with the statute even though service of the sentence first imposed has begun, and though the corrected sentence is required to be more onerous. Reyes v. United States, Caille v. United States, Mathes v. United States, United States v. Thomas, and Thompson v. United States, all" }, { "docid": "8718954", "title": "", "text": "directed that such sentences be served consecutively to the sentence previously imposed for another offense. Defendant argues that the court was without power to do this. The defendant had not then, and still has not, begun service of any sentence imposed for the conviction here involved. Under such circumstances, the district judge had the power to resentence the defendant, increasing its severity. Cisson v. United States, 4 Cir., 1930, 37 F.2d 330, 332; Hatem v. United States, 4 Cir., 1930, 42 F.2d 40, certiorari denied 282 U.S. 887, 51 S.Ct. 103, 75 L.Ed. 782; Acme Poultry Corp. v. United States, 4 Cir., 1944, 146 F.2d 738, certiorari denied 324 U.S. 860, 65 S.Ct. 865, 89 L.Ed. 1417; Kelley v. United States, 4 Cir., 1956, 235 F.2d 44; Rowley v. Welch, 1940, 72 App.D.C. 351, 114 F.2d 499. Failure to accord defendant opportunity to make statement prior to sentence. Prior to the open court imposition of sentence on March 30, 1960, there was an extended colloquy between the court and defense counsel, but it does not appear that any inquiry was made of defendant directly as to whether he wished to say anything before imposition of sentence on him. The following colloquy concluded the district judge’s resentencing of defendant on September 29, 1960: “So the defendant being present in court at this time with his attor ney, the court will now direct that an appropriate judgment and order be entered imposing the sentence upon defendant in the same terms as heretofore imposed at the time the sentence was announced but providing that the sentence shall run consecutively to the sentence in Nashville Criminal No. 12,680. “The order will be prepared to this effect, and I would like for the order to set out fully the authorities which I have cited from the bench to support the proposition. “Mr. Quillen: May it please the court, we will file a notice of appeal within the time allowed. “The Court: In this same connection, I might point out and would like for the order to show that it appears in this record that the" }, { "docid": "18415217", "title": "", "text": "cites are those in which a different punishment was imposed after service of sentence had begun (United States v. Murray, 1928, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309) where an attempt was made to increase the penalty after some service of the lesser sentence (United States v. Benz, supra; United States v. Rosenstreich, 2 Cir., 1953, 204 F.2d 321; Crowe v. United States, 6 Cir., 1952, 200 F.2d 526), and those in which an “either or” punishment was authorized and the court imposed both after first imposing only one. Ex parte Lange, 1873, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872. The Supreme Court considered precisely the question here before us in Boz-za v. United States, 1947, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818. There the crime required imprisonment and fine; the defendant was sentenced to imprisonment only. After five hours detention in the federal jail, defendant was returned to court and fined, in addition to his imprisonment. To the claim that increasing the sentence after service had begun constituted double jeopardy, the Supreme Court said: “In this case the court only ‘set aside what it had no authority to do and substitute[d] directions required by law to be done upon the conviction of the offender.’ ” Id., 330 U.S. at page 167, 67 S.Ct. at page 649. Appellant seeks here to distinguish the Bozza case on two grounds: (a) if the criticized procedure was void, a total release of the prisoner would be effected (which the Supreme Court desired to avoid); (b) the court did not consider that the five hour delay constituted entry of service upon the sentence first imposed. The Bozza case cannot be so distinguished. After referring to the cases where a sentence had been increased after service had begun, the court said: “ * * * the fact that petitioner had been twice before the judge for sentencing and in a federal place of detention during the five hour interim cannot be said to be double jeopardy as we have heretofore considered it. * * * If this inadvertent error" }, { "docid": "13923841", "title": "", "text": "(emphasis added). And again in Reid v. Covert, 354 U.S. 1, 37 n. 68, 77 S.Ct. 1222, 1241 n. 68, 1 L.Ed.2d 1188 (1957), Mr. Justice Black’s plurality opinion, discussing the application of the Bill of Rights to military trials, stated: In Swaim v. United States, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823, this Court held that the President or commanding officer had power to return a case to a court-martial for an increase in sentence. If the double jeopardy provisions of the Fifth Amendment were applicable such a practice would be unconstitutional. In Walsh v. Picard, 446 F.2d 1209 (1st Cir. 1971), cert. denied, 407 U.S. 921, 92 S.Ct. 2465, 32 L.Ed.2d 807 (1972), the court up- ■ held the Massachusetts statute which allows a reviewing court to increase as well as decrease the sentence of a defendant who seeks sentence review. But the court explicitly noted that “the Massachusetts procedure does not permit the state to reopen the question of sentence on its own initiative. Were it to do so, it would of course violate the proscription against double jeopardy.” Id. at 1211. Several other courts of appeal, including this one, have stated that a sentence may not be increased, at least where, as here, the punishment already has been partly suffered, United States v. Chiarella, 214 F.2d 838, 841 (2d Cir.), cert. denied, 348 U.S. 902, 75 S.Ct. 226, 99 L.Ed. 708 (1954); Oxman v. United States, 148 F.2d 750, 753 (8th Cir.), cert. denied, 325 U.S. 887, 65 S.Ct. 1569, 89 L.Ed. 2001 (1945); Frankel v. United States, 131 F.2d 756, 758 (6th Cir. 1942); Rowley v. Welch, 72 App. D.C. 351, 114 F.2d 499, 501 n. 3 (1940), and the defendant has not challenged the sentence. United States v. Coke, 404 F.2d 836, 845 (2d Cir. 1968) (en banc). Although such dicta of course are not legally binding, their number and the high authority of their sources offer impressive evidence of the strength and prevalence of the view that the double jeopardy clause bars an increase in the sentence imposed by the district_" }, { "docid": "17212599", "title": "", "text": "imposed at all. Cf. Jordan v. United States, 60 F.2d 4, 6, with Barrow v. United States, 54 App.D.C. 128, 295 F. 949. This Court has rejected the ‘doctrine that a prisoner, whose guilt is established, by a regular verdict, is to escape punishment altogether, because the court committed an error in passing the sentence.’ In re Bonner, supra [151 U.S.] at 260 [14 S.Ct. at page 327, 38 L.Ed. 149], The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. See King v. United States, 69 App.D.C. 10, 15, 98 F.2d 291, 296. In this case the court ‘only set aside what it had no authority to do and substitute [d] directions required by the law to be done upon the conviction of the offender.’ In re Bonner, [151 U.S.] supra at [page] 260 [14 S.Ct. at page 327, 38 L.Ed. 149.] It did not twice put petitioner in jeopardy for the same offense. The sentence, as corrected, imposes a valid punishment for an offense instead of an invalid punishment for that offense.” In following Bozza, the Court of Appeals for the District of Columbia in Hayes v. United States, 1957, 249 F.2d 516, certiorari denied 356 U.S. 914, 78 S.Ct. 672, 2 L.Ed.2d 586, approved the increase, after two months, of an original sentence providing for confinement of from thirty to ninety months to a mandatory ten-year sentence. In doing so, the court stated, at pages 517-518: “It seems clear that if the March 8 sentence were valid it could not be augmented once defendant had begun to serve it. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354; Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872; United States v. Rosenstreich, 2 Cir., 204 F.2d 321; Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499. It also seems clear that, if the sentence were invalid and defendant successfully attacked it, he could be validly resentenced though the resentence increased the punishment. The defendant in such case" }, { "docid": "13209395", "title": "", "text": "suppress. Defendant supplied no evidence to support the bare motion filed by his attorney. There is no question as to the validity and timeliness of the appeal from the order of May 8, 1957. The question is whether the District Court, Judge Keech sitting, following procedure the appropriateness of which is not in dispute, could augment the March 8 sentence without offending the Fifth Amendment provision against placing a person twice in jeopardy for the same offense. * * * * * It seems clear that if the March 8 sentence were valid it could not be augmented once defendant had begun to serve it. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354; Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872; United States v. Rosenstreich, 2 Cir., 204 F.2d 321; Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499. It also seems clear that, if the sentence were invalid and defendant successfully attacked it, he could be validly resentenced though the resentence increased the punishment. The defendant in such case is held to have waived his protection against double jeopardy. Murphy v. Commonwealth of Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711; Robinson v. United States, 6 Cir., 144 F.2d 392, 397, affirmed 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944; King v. United States, 69 App.D.C. 10, 13, 98 F.2d 291, 295; Hammers v. United States, 5 Cir., 279 F. 265; Bryant v. United States, 8 Cir., 234 F. 51. Contra, In re Johnson, C.C.D.Mass., 46 F. 477. This has been held even where the defendant has appealed on other grounds and the prosecution has then raised the issue of error in the sentence. Barrow v. United States, 54 App.D.C. 128, 295 F. 949. We are persuaded also that a sentence which does not conform with the appli cable statute may be corrected though defendant has not appealed from the judgment embodying the invalid sentence, has begun to serve it, and steps to correct it are not initiated by him but by the Government. This is such" }, { "docid": "10429519", "title": "", "text": "at any time during the term at which it is imposed. The only limitation upon this power is that the sentence may not be increased if a fine has been paid or if the defendant has entered upon the service of a term of imprisonment; and the only reason for this limitation is that it is held double jeopardy, in violation of the 5th Amendment to the Constitution, to increase the penalty after it has been paid in part. Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309; United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 3-54. Where, however, a defendant has not paid any part of a fine nor been subjected to any sort of punishment as the result of a sentence, there is no basis for saying that he is subjected to double punishment because the sentence is increased or otherwise changed during the term. Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499; DeMaggio v. Coxe, 2 Cir., 70 F.2d 840; Hatem v. United States, 4 Cir., 42 F.2d 40, certiorari denied 282 U.S. 887, 51 S.Ct. 103, 75 L.Ed. 782; Cisson v. United States, 4 Cir., 37 F.2d 330, 332. As said by this court in the case last cited, which dealt with a provision in a sentence that the defendant should enter immediately upon the service thereof: “The power of the judge to modify or set aside judgments during the term is an ancient one and founded upon the soundest reasons. Upon more mature consideration he may, and frequently does, decide that a sentence imposed during the term should be lightened or increased. He may learn additional facts about a case which show the original sentence to be entirely inadequate or unreasonably harsh; and, if the mere incorporation in the sentence of such a provision as we have here is to deprive him of further power over the case, the greatest embarrassments in the administration of justice and the greatest hardships may result, for the judge would be" }, { "docid": "13923842", "title": "", "text": "would of course violate the proscription against double jeopardy.” Id. at 1211. Several other courts of appeal, including this one, have stated that a sentence may not be increased, at least where, as here, the punishment already has been partly suffered, United States v. Chiarella, 214 F.2d 838, 841 (2d Cir.), cert. denied, 348 U.S. 902, 75 S.Ct. 226, 99 L.Ed. 708 (1954); Oxman v. United States, 148 F.2d 750, 753 (8th Cir.), cert. denied, 325 U.S. 887, 65 S.Ct. 1569, 89 L.Ed. 2001 (1945); Frankel v. United States, 131 F.2d 756, 758 (6th Cir. 1942); Rowley v. Welch, 72 App. D.C. 351, 114 F.2d 499, 501 n. 3 (1940), and the defendant has not challenged the sentence. United States v. Coke, 404 F.2d 836, 845 (2d Cir. 1968) (en banc). Although such dicta of course are not legally binding, their number and the high authority of their sources offer impressive evidence of the strength and prevalence of the view that the double jeopardy clause bars an increase in the sentence imposed by the district_ court. The conclusion reached here does not conflict with the Supreme Court’s decision in North Carolina v. Pearce, supra, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. There the Court held that the double jeopardy clause did not prohibit imposition of a greater sentence on retrial than had been imposed at the original trial of a defendant, where the defendant succeeded in getting his first conviction set aside. The Court relied in Pearce on United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), which had established that “this constitutional guarantee imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside,” Pearce, supra, 395 U.S. at 720, 89 S.Ct. at 2078 (emphasis in original), and on Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), which held that a corollary of that power to retry was the power to impose any legally authorized sentence. Although various rationales have been advanced and rejected for the" }, { "docid": "23281127", "title": "", "text": "represents the kind of formal commencement of sentence that barred resentencing under our previous double jeopardy holdings. Neidinger v. United States, 647 F.2d 408, 410 & n. 1 (4th Cir.), cert. denied, 454 U.S. 859, 102 S.Ct. 311, 70 L.Ed.2d 155 (1981); see 18 U.S.C. § 3568 (1982). We do not view this question as bearing on our deci sion, however, because, even if he had commenced service of his sentence, it is our view that the Double Jeopardy Clause was not violated by the enhancement on resentencing. The general rule has long been recognized that a trial court has the power to recall a defendant who had already been sentenced and to impose a sentence different from that originally imposed. Bassett v. United States, 76 U.S. (9 Wall.) 38, 19 L.Ed. 548 (1969); Ex parte Lange, 85 U.S. (18 Wall.) 163, 167, 21 L.Ed. 872 (1874); United States v. Benz, 282 U.S. 304, 306-07, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931); Cisson v. United States, 37 F.2d 330, 332 (4th Cir.1930); Acme Poultry Corp. v. United States, 146 F.2d 738, 739 (4th Cir. 1944), cert. denied, 324 U.S. 860, 65 S.Ct. 865, 89 L.Ed. 1417 (1945); Williams v. United States, 422 F.2d 1318, 1318 (5th Cir.1970); United States v. Busic, 639 F.2d 940, 948 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); Neidinger v. United States, 647 F.2d 408, 410 (4th Cir.), cert. denied, 454 U.S. 859, 102 S.Ct. 311, 70 L.Ed.2d 155 (1981). As we said in an earlier case: The power of the judge to modify or set aside judgments during the term is an ancient one and founded upon the soundest reasons. Upon more mature consideration he may, and frequently does, decide that a sentence imposed during the term should be lightened or increased. He may learn additional facts about a case which show the original sentence to be entirely inadequate or unreasonably harsh; and, if the mere incorporation in the sentence of [a provision that the defendant enter immediately upon service of the sentence] is to deprive him" } ]

[ { "docid": "22203513", "title": "", "text": "which a Notice of Disagreement is filed on or after November 18, 1988, by providing that the Veterans’ Judicial Review Act “shall apply with respect to any case in which a notice of disagreement is filed ... on or after the date of the enactment of this Act [November 18, 1988].” Pub.L. No. 100-687, title IV, § 402. It is rudimentary law that in order for any court inferior to the Supreme Court of the United States to exercise jurisdiction it must have been supplied by an act of Congress. Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 2006, 104 L.Ed.2d 593 (1989) (citing The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252, 18 L.Ed. 851 (1868)). This proposition applies with equal force to courts created under both Article III and Article I of the United States Constitution. As early as 1807 the Supreme Court noted that “courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.” Id. 109 S.Ct. at 2005 (citing Ex parte Bollman, 8 U.S. (4 Cranch) 75, 93, 2 L.Ed. 554 (1807)). More recently, the Supreme Court noted that courts may not in any case, even in the interest of justice, extend their jurisdiction where none exits. Christianson v. Colt Industries Operating Co., 486 U.S. 800, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988). The jurisdiction conferred upon the United States Court of Veterans Appeals is expressly limited to claims where the Notice of Disagreement was filed on or after November 18, 1988. In the present case, appellant’s Notice of Disagreement was filed on February 16, 1988. Because the Notice of Disagreement predates November 18, 1988, the Court is without jurisdiction to review the decision of the BVA. Accordingly, the appeal is dismissed for lack of jurisdiction." } ]

[ { "docid": "10204437", "title": "", "text": "rating for the right leg disability because of limitation of motion of the right ankle. R. at 52. On April 3, 1989, appellant’s representative filed a statement with the BVA that appellant claimed an increased rating for his leg condition; in an October 1989 transcribed hearing, the representative stated that appellant continued to seek the 20% rating he had claimed in the January 1988 appeal to the BVA. R. at 55, 57. On January 30, 1990, the BVA remanded the case for clarification of the discrepancy between the April 1988 non-compensable rating and the rating listed in the August 1988 SSOC. R. at 59. The RO issued a rating decision on remand which established that the rating for the right leg disability continued to be 0%, despite the 10% rating noted on the SSOC. R. at 62. The BVA affirmed that determination. Herbert A. Tomlin, BVA 91-24029 (Aug. 13, 1991). II. Analysis This Court’s jurisdiction derives exclusively from the statutory grant of authority provided by Congress, and the Court may not extend its jurisdiction beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2179, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392 (Fed. Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). A prerequisite for the Court to have jurisdiction over an appeal is that the appellant must have filed a valid NOD on or after November 18, 1988. See Veteran’s Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note (West 1991)); see also Hamilton v. Brown, 4 Vet.App. 528, 531 (1993) (en banc). The statutory requirements for an NOD are set forth in section 7105(b) of title 38 of the United States Code. 38 U.S.C.A. § 7105(b). Section 7105(b) provides in pertinent part that an NOD must be filed with the agency of original jurisdiction (AOJ), that is, the agency which entered the initial review or determination concerning a claim (38 U.S.C.A. § 7105(b)(1)); that an NOD must be filed within one year from" }, { "docid": "10225051", "title": "", "text": "Court lacks authority to review the March 1984 RO rating decision originally rating appellant’s right epididymitis under DC 7599-7804 or the September 1986 RO decision with which he expressed disagreement concerning the diagnostic code. See Russell v. Principi, 3 Vet.App. 310, 315 (1992) (it would be inconsistent with Court’s jurisdiction for it to conduct a ‘full review’ of previous decisions over which it does not have plenary jurisdiction). Appellant could not have filed an NOD that could have conferred jurisdiction upon the Court with respect to either the March 1984 or the September 1986 RO decision. See Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note (West 1991)) (Court does not have jurisdiction unless an appellant has filed a valid NOD on or after November 18, 1988); 38 U.S.C.A. § 7105(b)(1) (West 1991) (NOD must be “filed within one year from the date of mailing of notice of the result of the initial review or determination”); 38 C.F.R. § 20.302 (1992); Prenzler v. Derwinski, 928 F.2d 392 (Fed.Cir.1991). Appellant’s recourse is to seek reconsideration of those decisions on the basis of clear and unmistakable error. Appellant also contends that the RO deprived him of procedural due process when it reduced the epididymitis rating without affording him an opportunity for a pre-reduction hearing. Br. at 16-19. However, appellant raises the “due process” argument for the first time here in this Court. A claimant seeking to appeal an issue to the Court must first obtain a final BVA decision on that issue. See 38 U.S.C.A. §§ 7266(a), 7252(a) (West 1991); see also Rosalinas v. Brown, 5 Vet.App. 1, 2 (1993) (claim of constitutional violation was not ripe for consideration by Court where BVA had not had the opportunity to express a view as to the constitutionality of 38 U.S.C.A. § 107(b) as applied to appellant); Saunders v. Brown, 4 Vet.App. 320, 326 (1993) (Court remanded constitutional claim where it was intertwined with factual questions that had not been developed for review). “Review in the Court shall be on the record" }, { "docid": "11968744", "title": "", "text": "panel shall constitute the final decision of the Board” and the previous BVA decision is nullified. Boyer v. Derwinski, 1 Vet.App. 531, 532-35 (1991). VA regulations outline in more detail when reconsideration may be accorded: (1) on allegation of obvious error of fact or law; (2) on new and material evidence from service department records; or (3) where allowance of benefits was influenced by false or fraudulent evidence. 38 C.F.R. § 20.1000. A motion for reconsideration must be in writing and include the name of the veteran or other claimant, the VA file number, and the date of the BVA “decision, or decisions, to be reconsidered.” 38 C.F.R. § 20.1001(a). In addition: [The motion] must also set forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting Reconsideration. If the applicable Board of Veterans’ Appeals decision, or decisions, involved more than one issue on appeal, the motion for reconsideration must identify the specific issue, or issues, to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion. 38 C.F.R. § 20.1001(a). This Court’s appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress, and the Court may not extend that jurisdiction beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178-79, 100 L.Ed.2d 811 (1988); see also Premier v. Derwinski, 928 F.2d 392 (Fed.Cir.1991); Skinner v. Derwinski 1 Vet.App. 2 (1990). In establishing this Court, Congress mandated that only cases “in which a notice of disagreement [has been] filed under section [7105] ... of title 38, United States Code, on or after [November 18, 1988]” would be heard by this Court. Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); 38 U.S.C. § 7251 note; see also Burton v. Derwinski, 933 F.2d 988, 989 (Fed.Cir.1991) (“a notice of disagreement has a specific meaning in the context of" }, { "docid": "9939521", "title": "", "text": "unacceptable for employment); Bagwell, supra (remanding, with regard to § 3.321(b), because Board failed to provide full reasons-or-bases analysis with regard to a letter from an employer who denied employment on basis of veteran’s disabilities). . See Douglas v. Derwinski, 2 Vet.App. 435, 439-40 (1992) (en banc); EF v. Derwinski, 1 Vet.App. 324, 326 (1991); Payne v. Derwinski, 1 Vet.App. 85, 87 (1990). . This Court's appellate jurisdiction derives exclusively from statutory grants of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178-79, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). The Court has jurisdiction to review only those final BVA benefits decisions prior to which an NOD was filed on or after November 18, 1988, as to an underlying decision of an RO or other VA agency of original jurisdiction. See Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note). See generally Hamilton v. Brown, 4 Vet.App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir.1994). . In Russell v. Principi, the Court defined CUE as follows: Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.... [CUE] is the sort of error which, had it not been made, would have manifestly changed the outcome ... [, an error that is] undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed. Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc). \"In order for there to be a valid claim of [CUE], ... [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated.” Ibid. \"If a claimant-appellant wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is" }, { "docid": "10204438", "title": "", "text": "that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2179, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392 (Fed. Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). A prerequisite for the Court to have jurisdiction over an appeal is that the appellant must have filed a valid NOD on or after November 18, 1988. See Veteran’s Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note (West 1991)); see also Hamilton v. Brown, 4 Vet.App. 528, 531 (1993) (en banc). The statutory requirements for an NOD are set forth in section 7105(b) of title 38 of the United States Code. 38 U.S.C.A. § 7105(b). Section 7105(b) provides in pertinent part that an NOD must be filed with the agency of original jurisdiction (AOJ), that is, the agency which entered the initial review or determination concerning a claim (38 U.S.C.A. § 7105(b)(1)); that an NOD must be filed within one year from the date of mailing of notice of the determination (id.); and that an NOD “must be in writing and may be filed by the claimant, the claimant’s legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal guardian.” 38 U.S.C.A. § 7105(b)(2). An NOD is defined by VA regulations as “[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the [AOJ] and a desire to contest the result.” 38 C.F.R. § 20.201 (1992) (as to the pertinent language, the regulation was essentially the same, but codified at 38 C.F.R. § 19.118, at the time relevant to the procedural facts of this appeal). VA’s governing regulation requires that an NOD be a “written communication,” 38 C.F.R. § 20.-201, while the statute requires that it “must be in writing.” 38 U.S.C.A. § 7105(b)(2). However, we construe the regulation to impose no technical formal requirements for an NOD beyond the requirements set by the statute, for to impose" }, { "docid": "1149136", "title": "", "text": "an initial matter, the Court must determine whether it has jurisdiction over the Board’s decision to deny the appellant an increased disability rating for his service-connected PTSD. This Court’s jurisdiction derives exclusively from the statutory grant of authority provided by Congress and the Court may not extend its jurisdiction beyond that permitted by law. See Prenzler v. Derwinski, 928 F.2d 892 (Fed.Cir.1991). As established by the Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note), this Court has jurisdiction only over cases in which an NOD was filed on or after November 18, 1988. The Court has previously held that: There can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.... [Wjhere the BVA remands to an RO for further development and readjudication a claim previously decided by the RO and properly appealed to the BVA ..., an expression of disagreement with a subsequent RO readjudication on remand cannot be an NOD. Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc) (emphasis in original). The RO granted the appellant a 30% disability rating for PTSD in April 1988. An NOD was submitted in May 1988. In March 1990, the Board granted the appellant a 50% disability rating. The appellant had not asked for a specific rating in his appeal to the BVA, but merely appealed on the ground that the 30% rating was insufficient. Moreover, he did not seek reconsideration of the Board’s decision upgrading his rating. The May 1990 rating decision continued and implemented the 50% disability rating, and was part and parcel of the same claim. The appellant expressed no disagreement with the RO’s sua sponte decision to continue the 50% disability rating. See In the Matter of the Fee Agreement of William G. Smith in Case Number C 21 317 717, 6 Vet.App. 25, 27 (1993). The appellant" }, { "docid": "18543131", "title": "", "text": "7251 note) ].” Id. at 47. Specifically, the Court noted that the Board decision on appeal had not addressed the question whether the appellant qualified as an accrued-benefits claimant under section 5121(a). Id. at 48. The Court in Erro, after noting Landi-cho ’s reasoning that the Court is not an initial trier of facts and could not resolve issues not addressed by the Board, held that the asserted children of a widow could not substitute as a party in the appeal of the widow’s pending claim for DIC. The Court in Erro concluded that a veteran’s asserted children must meet certain criteria in order to be considered claimants for survivors’ benefits and that there had been no VA adjudication with respect to their own DIC claim, including claimant status, for the Court to review. Erro, 8 Vet.App. at 501. Because no timely application for accrued benefits had been made in Erro, the. Court expressly did not address the issue whether the asserted children may be substituted as parties in the appeal as to an accrued-benefits claim. See Erro, 8 Vet.App. at 502 (citing requirement in section 5121(c) that accrued-benefits claim be filed within one yeár after death of person entitled to periodic monetary benefits). The holdings in both Landicho and Erro stem from the basic principle that this Court’s appellate jurisdiction derives exclusively from statutory grants of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178-79, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). It has been firmly established that this Court has jurisdiction to review only those final BVA benefits decisions prior to which a Notice of Disagreement (NOD) was filed on or after November 18, 1988, as to an underlying decision of a VA regional office (RO) or other agency of original jurisdiction (AOJ). See VJRA; 38 U.S.C. § 7105. Thus, two prerequisites for the Court to have jurisdiction over this appeal are a final" }, { "docid": "16957481", "title": "", "text": "The Board raised the matter of the timeliness of the NOD for the first time in its decision and dismissed the veteran’s appeal due to an untimely NOD. The Board, noting that the postmark on the envelope containing the veteran’s NOD was not of record, stated that there was no proof that the NOD had actually been mailed on the April 3, 1995, date on it, and concluded that the NOD bore a date-stamp showing that it had been received at the RO on April 19,1995. A subsequent motion for BVA reconsideration was denied, and the appellant timely appealed to the Court. II. Analysis A. Court’s Jurisdiction This Court’s appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2, 3 (1990). In general, the Court has jurisdiction to review a final BVA decision only where an NOD was filed under 38 U.S.C. § 7105 on or after November 18, 1988, as to the underlying RO decision. See Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) [hereinafter VJRA § 402]; Hamilton v. Brown, 4 Vet.App. 528, 531-32 (1993) (en banc), aff'd, 39 F.3d 1574, 1583-85 (Fed.Cir.1994). But see Pub.L. No. 105-111, § 1(c)(2), 111 Stat. 2271, 2272 (1997) (permitting appeal to this Court of Board decision on clear and unmistakable error in prior Board decision, which is an original claim to the Board, without jurisdiction-conferring NOD). It is equally clear that the Court has jurisdiction to assess its own jurisdiction. See Smith (Irma) v. Brown, 10 Vet.App. 330, 332 (1997) (“Court always has jurisdiction to determine its jurisdiction over a ease”); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir.1996) (“it is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating" }, { "docid": "1103716", "title": "", "text": "claim as to arthritis and myalgia, the BVA stated that “the service medical records are negative for those disorders”, and that a musculoskeletal disability was not shown until many years after the veteran’s military service and not until after his 1963 accident. Id. at 10. II. Analysis A. The Court’s Jurisdiction Over the Kidney-Disorder Claim Although neither party has raised the issue, the Court must first determine whether it has jurisdiction over the appealed claim. See Phillips v. General Services Admin., 924 F.2d 1577, 1579 (Fed.Cir.1991); Fugere v. Derwinski, 972 F.2d 331, 334 n. 5 (Fed.Cir.1992); Noll v. Brown, 5 Vet.App. 80, 82 (1993); Hamilton v. Brown, 4 Vet.App. 528, 541 (1993) (en banc). In order for this Court to have jurisdiction over a claim on appeal from an adverse BVA decision, a claimant or his or her representative must have filed with an RO a valid NOD with respect to that claim on or after November 18, 1988. Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) (VJRA § 402); see Hamilton, 4 Vet.App. at 531. Furthermore, Hamilton held: “There can be only one valid NOD as to a particular claim until a. final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.” Hamilton, 4 Vet.App. at 538. To be valid for any purpose, an NOD must be in writing and must be filed by the claimant or his or her representative within one year after “the date of mailing of notice of the result of initial review or determination”. 38 U.S.C. § 7105(b)(1); see Rowell v. Principle 4 Vet.App. 9, 15 (1993), A BVA remand decision “is in the nature of a preliminary order and does not constitute a final Board decision.” 38 C.F.R. § 20.1100(b) (1993). Here, the veteran filed an NOD in May 1987 as to the RO’s disallowance of his claims for service connection for a kidney disorder, hypertension, myalgia, and arthritis. R. at 140. Those claims were pending on appeal to the" }, { "docid": "11968745", "title": "", "text": "to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion. 38 C.F.R. § 20.1001(a). This Court’s appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress, and the Court may not extend that jurisdiction beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178-79, 100 L.Ed.2d 811 (1988); see also Premier v. Derwinski, 928 F.2d 392 (Fed.Cir.1991); Skinner v. Derwinski 1 Vet.App. 2 (1990). In establishing this Court, Congress mandated that only cases “in which a notice of disagreement [has been] filed under section [7105] ... of title 38, United States Code, on or after [November 18, 1988]” would be heard by this Court. Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); 38 U.S.C. § 7251 note; see also Burton v. Derwinski, 933 F.2d 988, 989 (Fed.Cir.1991) (“a notice of disagreement has a specific meaning in the context of these cases: it is a document that initiates an appeal from an agency of original jurisdiction.”). This Court, sitting en banc, has held that “[t]here can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.” Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir.1994). Thus, the jurisdiction-conferring NOD referred to in VJRA § 402 is a written communication that initiates appellate review of an initial determination by the agency of original jurisdiction. Hamilton, 39 F.3d at 1582, aff'g 4 Vet.App. at 535-37. Here, the- appellant filed an NOD in September 1990 respecting an RO decision refusing to reopen his claim. Propelled by that NOD, the BVA issued a decision in August 1991. In response to the August 1991 decision, the appellant filed a motion for reconsideration of that, and only that, Board decision. The" }, { "docid": "10137252", "title": "", "text": "We can, and we do, raise this issue, sua sponte. A prerequisite for the Court to have jurisdiction over an appeal is that a valid NOD must have been filed on or after November 18,1988. Veteran’s Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note (West 1991)); see also Hamilton v. Brown, 4 Vet.App. 528, 531 (1993) (en banc). To be valid, an NOD must be a “written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result.” 38 C.F.R. § 20.201 (1992); Hamilton, 4 Vet.App. at 531. The NOD must be filed within one year from the date of mailing of notice of the result of initial review and determination by the RO. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.302(a) (1992). The claim at issue in this case is that filed by appellant, not the claim filed by the veteran. Although appellant’s claim for accrued benefits is related to the veteran’s claim, during his lifetime, for IU benefits, entitlement to accrued benefits arises under 38 U.S.C.A. § 5121(c) (West 1991). Pursuant to section 5121(c), an application for accrued benefits must be filed within one year of the veteran’s death. See 38 C.F.R. § 3.1000(c) (1992); Hayes v. Brown, 4 Vet.App. 353, 358 (1993). Thus, appellant’s claim must have been submitted after the veteran’s death, and constitutes a separate claim from the veteran’s. Therefore, she is required to file an NOD as to an adjudication of her claim in order to initiate review by the BVA and the Court. The only potential NOD in this case is that of appellant’s letter of April 16, 1991. However, this letter did not express disagreement with an adjudicative determination, as there had not yet been an adjudication of appellant’s claim; thus the letter is not an NOD. See 38 C.F.R. § 20.201 (1992); Hamilton, 4 Vet.App. at 531. Therefore, because the July 31, 1991, decision which forms the" }, { "docid": "11961520", "title": "", "text": "also Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). The Court has jurisdiction to review only those final BVA benefits decisions prior to which an NOD was filed on or after November 18, 1988, as to an underlying decision of an RO or other agency of original jurisdiction. See Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note). The Court’s opinion in Hamilton v. Brown clearly established that “[tjhere can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant”, Hamilton, 4 Vet.App. 528, 538 (1993), aff'd 39 F.3d 1574, 1584-85 (Fed.Cir.1994). This case presents a question whether under West an original NOD disagreeing with an RO’s denial of service connection for a particular disability is the only valid NOD such that a subsequent RO adjudication (prior to the issuance of an SOC and the filing of a 1-9 Appeal) granting-service connection and assigning a rating would be part of the case to which the original NOD applied, and a request for a higher disability rating thus would not constitute a separate claim as to which a separate NOD may be filed. In West, the veteran’s claim for VA disability compensation had been denied in March 1987. In January 1988, he filed an NOD, and subsequently a VARO issued an SOC. In September 1988, the BVA remanded the claim. In March and December 1989, the RO continued the denial of service connection for the claim. In June 1990, the BVA granted entitlement to service connection and returned the claim to the RO for assignment of a disability rating. In July 1990, the RO assigned a rating and an effective date. In September 1990, the veteran filed an “NOD” as to the July 1990 RO decision. In March 1992, the BVA awarded an earlier effective date but" }, { "docid": "1132993", "title": "", "text": "of Disagreement.” Id. In a rating decision dated October 1989, the RO noted that the July 1989 correspondence could not function as an NOD since the case already was under consideration by the BVA and no further action could be taken on the NOD. R. at 216. In a letter dated December 1989, the Chairman of the BVA wrote to the RO and noted that, because appellant had requested a personal hearing and such a hearing had not been conducted prior to the BVA’s March 1989 decision, the veteran’s due process rights had been violated. R. at 217. The Chairman requested that the RO schedule appellant for a hearing as soon as possible. Id. On March 15,1990, appellant testified at a personal hearing. R. at 219. On September 20, 1990, the BVA vacated its earlier decision based on its failure to properly schedule appellant for a personal hearing prior to its March 1989 decision. R. at 257-59; see 38 C.F.R. § 20.904(a)(3) (1992) (authorizing the BVA, upon its own motion, to vacate one of its decisions based on a denial of due process, including a prejudicial failure to afford appellant a personal hearing, but noting that where a hearing is subsequently scheduled and appellant fails to appear, the decision will not be vacated). On March 15, 1991, the BVA rendered its decision currently on appeal to this Court. Burnett M. Frazer, BVA_ (Mar. 15, 1991). This Court’s jurisdiction derives exclusively from the statutory grant of authority provided by Congress, and the Court may not extend its jurisdiction beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). A prerequisite for the Court to have jurisdiction over an appeal is that appellant must have filed a valid NOD on or after November 18, 1988. Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note (West 1991)); see also Hamilton," }, { "docid": "1132994", "title": "", "text": "decisions based on a denial of due process, including a prejudicial failure to afford appellant a personal hearing, but noting that where a hearing is subsequently scheduled and appellant fails to appear, the decision will not be vacated). On March 15, 1991, the BVA rendered its decision currently on appeal to this Court. Burnett M. Frazer, BVA_ (Mar. 15, 1991). This Court’s jurisdiction derives exclusively from the statutory grant of authority provided by Congress, and the Court may not extend its jurisdiction beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). A prerequisite for the Court to have jurisdiction over an appeal is that appellant must have filed a valid NOD on or after November 18, 1988. Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note (West 1991)); see also Hamilton, 4 Vet.App. at 530-31. An NOD is defined by VA regulations as “[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction [AOJ] and a desire to contest the result.” 38 C.F.R. § 20.201 (1992). In Hamilton, this Court noted: The NOD referred to in VJRA § 402 is one “filed under section 4005 (now 38 U.S.C.A. § 7105) of title 38, United States Code.” The purpose of the NOD, to which VJRA § 402 refers as one “filed under section [7105]”, is to “initiate” BVA “appellate review” by letting VA know, within one year from the date of VA’s “mailing of notice of the result of initial review or determination (by the AOJ)”, of the intent to appeal to the BVA. 38 U.S.C.A. § 7105(a), (b) (West 1991). Thus, the NOD is to obtaining BVA review what a Notice of Appeal (NOA) under 38 U.S.C.A. § 7266(a) (West 1991) is to obtaining review in this Court.... Id. 4 Vet.App." }, { "docid": "11961519", "title": "", "text": "on appeal stated that an appeal had been taken from the December 1987 RO decision for, inter alia, a compensable evaluation for the left-eye condition, and confirmed that previous decision. Suppl.R. at 42. In a January 1991 BVA decision, the Board determined that it had jurisdiction over the veteran’s left-eye claim and remanded the ease to the RO so that the veteran could be furnished an SSOC that included a summary of pertinent law and regulations (regarding claims, other than the eye condition, that were also on appeal). R. at 126-27. In February 1991, the RO issued an SSOC. R. at 129-32. In the September 1991 BVA decision here on appeal, the Board, inter alia, denied a compensable evaluation for the veteran’s left-eye disability. Grantham, BVA 91-26911 at 8. C. Analysis This Court’s appellate jurisdiction derives exclusively from statutory grants of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). The Court has jurisdiction to review only those final BVA benefits decisions prior to which an NOD was filed on or after November 18, 1988, as to an underlying decision of an RO or other agency of original jurisdiction. See Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note). The Court’s opinion in Hamilton v. Brown clearly established that “[tjhere can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant”, Hamilton, 4 Vet.App. 528, 538 (1993), aff'd 39 F.3d 1574, 1584-85 (Fed.Cir.1994). This case presents a question whether under West an original NOD disagreeing with an RO’s denial of service connection for a particular disability is the only valid NOD such" }, { "docid": "10141434", "title": "", "text": "ignored. On May 14, 1991, the BVA issued a decision which denied the appellant entitlement to service connection for the cause of the veteran’s death. II. ANALYSIS In order for this Court to have jurisdiction over a claim on appeal from an adverse BVA decision, a claimant or his or her representative must have filed with the RO a valid NOD with respect to that claim on or after November 18, 1988. Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note (West 1991)) (VJRA § 402); see Hamilton v. Brown, 4 Vet.App. 528, 531 (1993) (en banc). There can only be one valid NOD as to a particular claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant. Hamilton, 4 Vet.App. at 538. On review of the record on appeal in this case, the original rating decision on the issue of service connection for the cause of the veteran’s death was issued in April 1987. An NOD was filed to that decision in October 1987. Therefore, under Hamilton, there is no jurisdictionally valid NOD on or after November 18, 1988. However, in response to the Court’s order dated May 12,1993, to show cause why this appeal should not be dismissed for lack of jurisdiction, the appellant argued that she made two distinct claims in her appeal: (1) a claim for dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1310 (West 1991) and (2) an alternative claim for DIC compensation under 38 U.S.C.A. § 1318(b) (West 1991). The appellant concedes that the Court lacks jurisdiction over the 38 U.S.C.A. § 1310 claim since the NOD was filed in October 1987. However, the appellant contends that the October 1987 NOD does not apply to the 38 U.S.C.A. § 1318(b) claim since this claim was raised for the first time in the appellant’s lengthy letter dated October 1990. Thus, the appellant argues, “any notice of disagreement with respect to a claim for benefits under 38 U.S.C. §" }, { "docid": "16957482", "title": "", "text": "review a final BVA decision only where an NOD was filed under 38 U.S.C. § 7105 on or after November 18, 1988, as to the underlying RO decision. See Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) [hereinafter VJRA § 402]; Hamilton v. Brown, 4 Vet.App. 528, 531-32 (1993) (en banc), aff'd, 39 F.3d 1574, 1583-85 (Fed.Cir.1994). But see Pub.L. No. 105-111, § 1(c)(2), 111 Stat. 2271, 2272 (1997) (permitting appeal to this Court of Board decision on clear and unmistakable error in prior Board decision, which is an original claim to the Board, without jurisdiction-conferring NOD). It is equally clear that the Court has jurisdiction to assess its own jurisdiction. See Smith (Irma) v. Brown, 10 Vet.App. 330, 332 (1997) (“Court always has jurisdiction to determine its jurisdiction over a ease”); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir.1996) (“it is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits”); Phillips v. Brown, 10 Vet.App. 25, 30 (1997). _ We thus proceed to consider the question of this Court’s jurisdiction to review the BVA’s decision on the timeliness of the NOD. In order for there to be an NOD that complies with VJRA § 402 and thus give this Court jurisdiction over an appeal, there must be a document that meets the definition of an NOD in law and regulation, see 38 C.F.R. § 20.201 (1997); Hamilton, 4 Vet.App. at 535-36, and that is filed within one year after the date of mailing of notice of the RO’s determination. See 38 U.S.C. § 7105(b)(1). This is not a case where it is undisputed that the veteran timely filed an NOD on a substantive issue and in which the Board sua sponte raised a jurisdictional matter other than one pertaining to whether there was a valid NOD; in such a case, the NOD on the substantive issue would appear to encompass also any question of jurisdiction because a claim that an administrative agency or" }, { "docid": "16947271", "title": "", "text": "also contends that the Board failed to address an implicit secondary-serviee-eonnection claim that his gastrointestinal disorder was the result of, inter alia, pain medication taken for his service-connected right-shoulder condition. It is true that the Board must liberally construe all submissions. See EF v. Derwinski, 1 Vet.App. 324, 326 (1991). However, this Court’s appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178-79, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2, 3 (1990). The Court has no jurisdiction over an issue absent a post-November 18, 1988, NOD, expressing disagreement with an RO’s decision on that issue or with an RO’s failure to adjudicate that claim. See Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); Slater v. Brown, 9 Vet. App. 240, 244-45 (1996); Isenbart v. Brown, 7 Vet.App. 537, 540-41 (1995); see also Barrera v. Gober, 122 F.3d 1030, 1032 (Fed.Cir.1997) (“veteran’s overall claim, or case, for benefits is comprised of separate issues, and ... Court of Veterans Appeals has jurisdiction to consider an appeal concerning one or more of those issues, provided a[n] NOD has been filed after the effective date of the [VJRA] with regard to the particular issue”); Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed.Cir.1997); see also Johnston v. Brown, 10 Vet.App. 80, 89-91 (1997) (Steinberg, J., concurring) (“absent a valid NOD as to the ... claim in this case, the Court lacks jurisdiction to remand that claim to the BVA”). Because the Court can find no jurisdiction-conferring NOD in the record as to the RO’s failure to adjudicate a secondary-service-connection claim for a gastrointestinal disorder, such a claim is not properly before the Court. Compare Ledford v. West, 136 F.3d 776, 779-80 (Fed.Cir.1998) (Court lacked jurisdiction over constitutional challenge as to denial of claim for total disability based on individual unemployability (TDIU)" }, { "docid": "9939520", "title": "", "text": "U.S.C. § 7251 note), as to service-connection claim, \"a claim based on the diagnosis of a new mental disorder, taken alone or in combination with a prior diagnosis of a related mental disorder, states a new claim, for the purpose of the jurisdictional requirement, when the new disorder had not been diagnosed and considered at the time of the prior [NOD]”, and hence separate NOD is required to put into appellate status a claim as to that newly-diagnosed disorder); Ephraim, 5 Vet.App. at 551-54 (Steinberg, J., dissenting). .See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Facts so alleged are presumed credible for the purpose of determining whether a claim is well grounded. See Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995); King v. Brown, 5 Vet.App. 19, 21 (1993). . See Shipwash, supra (where no evidence of \"an exceptional disability picture [including the itemized criteria]\", Board need not evaluate for ex-traschedular rating); Fleshman, supra (remanding, with regard to § 3.321(b), where Board failed to satisfy reasons-or-bases requirement to discuss, inter alia, reason veteran found unacceptable for employment); Bagwell, supra (remanding, with regard to § 3.321(b), because Board failed to provide full reasons-or-bases analysis with regard to a letter from an employer who denied employment on basis of veteran’s disabilities). . See Douglas v. Derwinski, 2 Vet.App. 435, 439-40 (1992) (en banc); EF v. Derwinski, 1 Vet.App. 324, 326 (1991); Payne v. Derwinski, 1 Vet.App. 85, 87 (1990). . This Court's appellate jurisdiction derives exclusively from statutory grants of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178-79, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). The Court has jurisdiction to review only those final BVA benefits decisions prior to which an NOD was filed on or after November 18, 1988, as to an underlying decision of an RO or other VA agency of original jurisdiction. See Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402, 102" }, { "docid": "6782962", "title": "", "text": "in April 1993 specifically discussing the veteran’s complaints of back pain and describing the in-service injury to his back. R. at 193. Accordingly, the Court holds that the veteran filed a claim for service connection for his back in 1945, and that that claim has never been adjudicated. The Secretary apparently concedes this. See Br. at 14 (Secretary “acknowledges” that appellant’s back claim “has never been adjudicated by the BVA”). This Court’s appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988); Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Ve lez v. West, 11 Vet.App. 148, 157 (1998); Skinner v. Derwinski 1 Vet.App. 2, 3 (1990). The Court has jurisdiction to review only those final BVA decisions prior to which a Notice of Disagreement (NOD) was filed on or after November 18, 1988, as to an underlying decision of an RO or other agency of original jurisdiction. See Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) [hereinafter VJRA § 402]; 38 U.S.C. § 7105; Barrera v. Gober, 122 F.3d 1030, 1031 (Fed.Cir.1997); Grantham v. Brown, 114 F.3d 1156, 1157 (Fed.Cir.1997); Velez, 11 Vet.App. at 157 (“Court has no jurisdiction over an issue absent a post-November 18, 1988, NOD, expressing disagreement with an RO’s decision on that issue or with an RO’s failure to adjudicate that [issue]”). An NOD is defined by regulation as “[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the [RO] and a desire to contest the result”; it “must be in terms which can be reasonably construed as [expressing] disagreement with that determination and a desire for appellate review”. 38 C.F.R. § 20.201 (1997); see also Beyrle v. Brown, 9 Vet.App. 24, 27 (1996); Hamilton v. Brown, 4 Vet.App. 528, 531 (1993) (en banc), aff'd, 39 F.3d 1574, 1584-85 (Fed.Cir." } ]

[ { "docid": "12403388", "title": "", "text": "disregard” Gaglione’s second statement “because it contradicts his prior deposition testimony.” Id. We conclude that this was error. The “sham issue of fact” doctrine “prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts the party’s previous sworn testimony.” In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir.2013) (per curiam) (emphasis supplied). See also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001) (“[Factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiffs affidavit opposing summary judgment and that affidavit contradicts her own prior deposition testimony.”); Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996) (“[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.”). The purpose of the doctrine is clear: “[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969). Thus, factual issues that a party creates by filing an affidavit crafted to oppose a summary judgment motion that contradicts that party’s prior testimony are not “genuine” issues for trial. Id. Here, however, Gaglione was not a party to the action, nor did he have a familial or other close relationship with the plaintiff that suggests Moll could influence Gaglione’s testimony. Moreover, there is nothing in the record to suggest that Ga-glione submitted the declaration solely to create a genuine issue of fact. Therefore the district court was not required to disregard Gaglione’s second sworn statement. In certain circumstance we have held that sham issue of fact doctrine applies to third-party witnesses, particularly expert witnesses. See Fosamax, 707 F.3d at 193 (holding that the sham affidavit doctrine" } ]

[ { "docid": "3405940", "title": "", "text": "hope of creating an issue of fact....” Id. at 959. The Court observed: [t]he entire content of the affidavit is con-elusory, it does not set forth facts of which the plaintiff has personal knowledge and it does not give specific facts, but only generalities. If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly dimmish the utility of summary judgment as a procedure for screening out sham issues of fact. Id. at 960 (internal quotation marks and citations omitted). The Court of Appeals for the Seventh Circuit likewise held: [a] party may not create a genuine issue of fact by contradicting his own earlier statements, at least without a plausible explanation for the sudden change of heart. As we have recently stated, “[i]t is well established that a party cannot create a genuine issue of fact by an affidavit containing conclusory allegations wMch contradict plain admissions in prior deposition or otherwise sworn testimony.” Richardson v. Bonds, 860 F.2d 1427, 1438 (7th Cir.1988) (citations omitted). Plaintiff provides no explanation for the difference between his November 9, 1995 deposition testimony and his contradictory January 4, 1996 affidavit. The conclusory allegations of Plaintiffs affidavit contradicting his earlier deposition testimony do not, therefore, create a genuine issue of fact, but, at most, a sham issue of fact. To establish a prima facie ease of age discrimination, Plaintiff must show at least that he was replaced by someone not in the protected class. The Court finds and concludes Defendant has demonstrated an absence of evidence supporting Plaintiffs case. Because Plaintiff has not raised a genuine issue of fact, the Court GRANTS Defendant’s motion for summary judgment and DENIES Plaintiffs motion for summary judgment. The Court further ORDERS tMs case dismissed with prejudice. . The Clerk is directed to send a copy of tMs Memorandum OpiMon and Order to counsel of record. . This action was originally filed in the Circuit Court of Wood County, West Virginia on March 9, 1995 and subsequently was removed to" }, { "docid": "22941626", "title": "", "text": "work in Monterey. In her declaration in opposition to Arcata’s motion for summary judgment, appellant stated that she only expressed a preference for working in Mon-terey, and not that she would refuse employment elsewhere. This statement contradicted her prior deposition testimony that she conditioned her employment on being located in Monterey, and that the condition was repeated in her June 1981 letter to Buck Wong. Foster characterized the purpose of her letter to Wong as an effort to “clear the air and bring to Wong’s attention the inequities [in her salary] and not to confirm that I would only work in Monterey.” Foster stated that Areata knew I needed and wanted to work, and assigned me to jobs in Nellis, Sacramento and Burlingame. I expressed interest in working at Burlin-game and Nellis if I were properly compensated. These discussions were held with Barnett and Smothers, both Vice Presidents of Areata. Appellant also contends that she expressed an interest in the Nellis position by the fact that she had been responsible for management of the Nellis contract and had worked at Nellis when required during 1980-82. The district court disregarded appellant’s declaration in opposition to the motion for summary judgment to the extent that it was contrary to her deposition testimony, based on our decision in Rado-benko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir.1975). In that case, this court refused to permit the appellant to create his own issue of fact by an affidavit contradicting his prior deposition testimony. We quoted a decision by the Second Circuit in which that court noted: [I]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact. 520 F.2d at 544 (quoting Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969)). We agree with the district court that Radobenko is apposite. Appellant’s declarations that she only expressed a preference for working in Monterey" }, { "docid": "22370448", "title": "", "text": "testimony. Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969) (examining omission in four-day deposition); Martin v. City of New York, 627 F.Supp. 892, 896 (E.D.N.Y.1985) (examining direct contradiction between deposition and affidavit). “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma, 410 F.2d at 578. Thus, factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not “genuine” issues for trial. Id. Guided by these cardinal principles, we conclude that the district court erred in disregarding portions of Hayes’ second deposition. In short, the circumstances in this ease do not justify the court’s refusal to consider portions of the second deposition. First, the conflict in this case does not arise out of an affidavit crafted for the specific purpose of defeating a motion for summary judgment. It does not arise out of an affidavit at all. . In Perma, we concluded that statements in an affidavit filed in response to a summary judgment motion could not create material factual disputes where none existed without such affidavit. We recognized that a deposition of a witness, subject to cross-examination, is generally more reliable than an affidavit submitted to oppose a summary judgment motion. 410 F.2d at 578. In this case, however, the conflict arises from a deposition taken long before the defendants filed their motion for summary judgment. Second, the circumstances surrounding the deposition testimony in this case are significantly different from the circumstances sur rounding the affidavit in Perma. In this case, Hayes was not represented by counsel at the first deposition. He had conducted only limited discovery pro se by the time of the first deposition. Moreover, as is apparent from the transcript, the first deposition was very brief. By the time of the second deposition, appellant had retained pro bono counsel and counsel had conducted significant discovery. Additionally, the second" }, { "docid": "22101253", "title": "", "text": "a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.’ ” (quoting Foster v. Arcata Assocs., Inc., 772 F.2d 1453, 1462 (9th Cir.1985))); cf. Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, -, 119 S.Ct. 1597, 1603-04, 143 L.Ed.2d 966 (1999) (recognizing, without endorsing, similar “sham affidavit” holdings of every circuit). In the present case, Leslie’s letters to ICA appear to contradict his assertion of a contract entitling him to a percentage fee. This is different, however, from our “sham affidavit” cases, because Leslie’s deposition testimony and sworn declaration in this case are consistent and are contradicted only by Leslie’s unsworn letters. See Shockley v. City of Newport News, 997 F.2d 18, 23 (4th Cir.1993) (explaining that a sworn affidavit is not a “sham” merely because it contradicts unsworn letters). Additionally, Leslie’s deposition testimony and sworn declaration seek to explain his prior statements. See Messick v. Horizon Indus., Inc., 62 F.3d 1227, 1231 (9th Cir.1995) (stating that, even under the “sham affidavit” doctrine, “the non-moving party is not precluded from elaborating upon, explaining or clarifying prior testimony” and that “minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit”); see also Seshadri, 130 F.3d at 804 (recognizing “that a party might be able to explain away his prior inconsistent statements” and stating that a party should be bound by such statements only if they are unexplained). Here, as the district court acknowledged, if Leslie’s deposition testimony and sworn declaration are believed, his claims may not be dismissed on summary judgment. In T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626 (9th Cir.1987), we explained that, “at summary judgment, the judge must view the evidence in the light most favorable to the nonmoving party: if direct evidence produced by the moving party conflicts with direct evidence produced by the nonmov-ing" }, { "docid": "12403387", "title": "", "text": "or retaliated against her, the district court is free to re-consider summary judgment for Verizon. We note, however, that the district court erred when it concluded that it “must disregard” Christopher Gaglione’s sworn statement that Moll’s transfer was motivated by retaliatory intent because it con tradicted his prior deposition testimony. Moll, 2012 WL 1985087, at *22. The district court was not required to disregard Gaglione’s testimony. In November 2005, when Gaglione was employed by Verizon, he testified at his deposition that there was a valid reason for Moll’s transfer to the Syracuse office— specifically, to centralize resources in the office where Gaglione, their manager, was located. In November 2011, however, after Gaglione was fired from Verizon, he stated in a declaration that “[t]he primary factor for [the] decision [to transfer Moll] was an effort to retaliate against ... [her] for [her] continuing complaints of discrimination and retaliation.” He went on to say that Verizon “justified this transfer with the pretext that all [System Engineers] ... should work together.” The district court determined that it “must disregard” Gaglione’s second statement “because it contradicts his prior deposition testimony.” Id. We conclude that this was error. The “sham issue of fact” doctrine “prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts the party’s previous sworn testimony.” In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir.2013) (per curiam) (emphasis supplied). See also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001) (“[Factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiffs affidavit opposing summary judgment and that affidavit contradicts her own prior deposition testimony.”); Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996) (“[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.”). The purpose of the doctrine is clear: “[i]f a party who has been examined at length on deposition could" }, { "docid": "5403406", "title": "", "text": "In Camfield, we addressed “the troublesome issue of whether summary judgment may be granted when one of the parties after giving a deposition later files an affidavit with directly contrary statements.” Id. In affirming the district court’s grant of summary judgment for the defendant, this court held that an affidavit filed by the plaintiff in opposition to a motion for summary judgment that directly contradicted the plaintiffs previous deposition testimony was insufficient to create a genuine issue of material fact under Rule 56. Id. at 1365. We stated: The very purpose of summary judgment under Rule 56 is to prevent “the assertion of unfounded claims or the interposition of specious denials or sham defenses ....” 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2712 (1983). If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own earlier testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact. Id. We emphasized that while summary judgment “is to be reserved for those cases in which there is no genuine material issue of fact for determination,” if “testimony under oath ... can be abandoned many months later by the filing of an affidavit, probably no cases would be appropriate for summary judgment.” Id. No party should be allowed to create “issues of credibility” by contradicting his own previous testimony. Id. at 1366. District courts, however, must use extreme care in examining such issues and only grant summary judgment where “the conflicts between the deposition and affidavit raise only sham issues.” Id. Accordingly, when the affiant states in his affidavit that he was confused in his deposition or where the affiant needs to explain portions of his deposition testimony that were unclear, the district court should not strike the affidavit from the record. Id. at 1364-65. In addition, when the affiant’s affidavit does not actually contradict his earlier testimony, the district court should not strike the affidavit from the record. Bass v. City of Sioux" }, { "docid": "22055101", "title": "", "text": "could not remember anything else that had been said. When the question was repeated Ms. Batchelor answered, “No.” The district court properly refused to deny summary judgment on the basis of the affidavit. A party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts her earlier deposition testimony. Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir.1984). Even in response to a leading question in her deposition Ms. Batchelor replied that no promise was made at the interview to the effect that she didn’t have to worry about being laid off. If such a statement had been made she was required to bring it out at the deposition and could not contradict her deposition testimony in a subsequent affidavit. In Biechele v. Cedar Point, Inc., 747 F.2d at 215, we quoted from Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969): If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact. The issue concerning the Sears handbook raised by the affidavit will be treated in connection with similar claims by the other two plaintiffs. IV. A. We conclude that summary judgment was proper in all three cases. A contract to discharge only for cause may not be based on “a mere subjective expectancy.” Schwartz v. Michigan Sugar Co., 106 Mich.App. 471, 478, 308 N.W.2d 459 (1981), appeal denied, 414 Mich. 870 (1982). The plaintiffs maintain that they had more than a subjective expectancy of continued employment; that the “Employe Rules” created an implied contract to discharge only for cause. The plaintiffs argue that by listing conduct that “may result in the termination of your employment” in the handbook Sears limited its right to discharge employees and that a discharge for any other reason would not be for good cause. They rely principally on Schipani v." }, { "docid": "1989946", "title": "", "text": "evidence to show that Officer Adey was responsible for the assaults on Howard, Barnett, or Stevenson, or that Officer Lowery was responsible for the assaults on Howard or Barnett. We say “credible” evidence because Appellants did submit multiple affidavits with their opposition to Appellees’ motion for summary judgment. Those affidavits — and specifically Barnett’s affidavit — were what Appellants principally relied upon at the summary judgment hearing to show that there remained disputes of material fact for trial. But as the district court noted, Barnett’s affidavit contradicted his earlier-given testimony and was “riddled with inconsistencies.” For example, Barnett stated in his affidavit that he “witnessed an Officer, whose name [he] later learned was Adey, strike Chris Howard in the face and knock [Howard] unconscious.” Yet, Barnett previously stated at his deposition that it was not until “after [Howard was knocked out] that[ ] ... Officer Adey sprung into action.” (Emphasis added.) More importantly, when Barnett was asked pointblank in his deposition, “Did you see Officer Adey physically hit, touch or come into contact with you or Mr. Stevenson or Mr. Bond or Mr. Howard?”, Barnett replied only, “Mr. Bond.” This Court has previously referred to bogus affidavits submitted in opposition to summary judgment for the purpose of. creating disputes of material fact as “sham” affidavits. See, e.g., Jackson v. Consolidation Coal Co., 21 F.3d 422 (4th Cir.1994) (unpublished table decision); see also Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.1984). (“If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” (citation and internal quotation marks omitted)). Here, we recognize that the events immediately preceding the assault on Appellants occurred suddenly and that Appellants were subjected to a great deal of stress; thus, we do not accuse Appellants, and specifically Barnett, of submitting a sham affidavit to create a bogus material factual dispute with the goal of defeating summary judgment. Nevertheless, we must" }, { "docid": "20295207", "title": "", "text": "of fact and thereby defeat summary judgment by the simple expedient of filing an affidavit that contradicts previous sworn testimony. “Courts have long held that a party may not create a material issue of fact simply by contradicting [her] prior sworn testimony____ ‘[T]he objectives of summary judgment would be seriously impaired if the district court were not free to disregard [the later statement].’ ”' Pyramid Securities Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C.Cir.1991) (quoting Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 706 (3d Cir.1988)); see Gagne v. Northwestern Nat. Ins. Co., 881 F.2d 309, 315 (6th Cir.1989). “If a party who has been examined at length in deposition could raise an issue of fact simply by submitting an affidavit contradicting [her] own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma Research and Development Co. v. Singer Co. 410 F.2d 572, 578 (2d Cir.1969). “[A] party’s affidavit which contradicts [her] own prior deposition testimony should be disregarded on a motion for summary judgment.” Mack v. United States, 814 F.2d 120, 124 (2d Cir.1987); see Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986); Kalekiristos v. CTF Hotel Management Corp., 958 F.Supp. 641, 669 (D.D.C. 1997). Plaintiff was deposed by counsel for all defendants, and plaintiffs counsel had more than one chance to correct any confusion plaintiff may have suffered. Although plaintiffs counsel had every opportunity to clarify plaintiffs testimony regarding FDA approval both during the deposition and within thirty days thereafter, see Rule 30(e), Fed.R.Civ.P., he made no attempt to do so. Furthermore, despite plaintiffs allegations to the contrary, her affidavit does not “clarify” confusing testimony; her deposition testimony with regard to this particular point, although damaging to her case, was quite clear: she would have gone ahead with the surgery even if she had known the pedicle screws had not been approved by the FDA. “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create" }, { "docid": "20295206", "title": "", "text": "perform on your back, he was going to use screws or plates, that while they had not been approved by the FDA, in his judgment and his opinion, they were something that would provide you with the relief you were looking for, would you have gone ahead and had the procedure? Deposition of Lilian Reetz at 143-44. Plaintiff responded: “Yes. I would have went ahead I guess.” Id. at 144. In response to the Hospital’s argument that this testimony concedes the crucial genuine issue of material fact and thus defeats all of plaintiffs claims, plaintiff has filed an affidavit that attempts to “clarify” her damning testimony. See Pl.’s Opp’n, Ex. A, Affidavit of Lilian Reetz. Her affidavit, dated August 8, 1997, states in part, “When I gave my deposition earlier in this action ... I did not at that time, nor do I presently know what the FDA is or what it does.” Id. The Court will lend no credence to this part of plaintiffs self-serving affidavit. Plaintiff cannot create or resurrect a genuine issue of fact and thereby defeat summary judgment by the simple expedient of filing an affidavit that contradicts previous sworn testimony. “Courts have long held that a party may not create a material issue of fact simply by contradicting [her] prior sworn testimony____ ‘[T]he objectives of summary judgment would be seriously impaired if the district court were not free to disregard [the later statement].’ ”' Pyramid Securities Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C.Cir.1991) (quoting Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 706 (3d Cir.1988)); see Gagne v. Northwestern Nat. Ins. Co., 881 F.2d 309, 315 (6th Cir.1989). “If a party who has been examined at length in deposition could raise an issue of fact simply by submitting an affidavit contradicting [her] own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma Research and Development Co. v. Singer Co. 410 F.2d 572, 578 (2d Cir.1969). “[A] party’s affidavit which contradicts [her] own prior deposition testimony should be disregarded" }, { "docid": "2050037", "title": "", "text": "the deponents were still the substantial equivalent of a Rule 56(c) affidavit. In In re Sunset Bay Associates, 944 F.2d 1503, 1510 (9th Cir.1991), it was held that a witness’s sworn statement given in a question and answer format, without crossexamination or the witness’s signature was still admissible under Rule 56(c). “Because there is no reason to believe that the sworn answers to questions are less reliable than an affidavit, to the extent that the content of the deposition testimony is otherwise admissible, that testimony should be admissible on summary judgment.” Id. at 1510. Duffee, 160 F.R.D. at 604. The statements complained of here are written witness statements given under oath, administered by a registered merit reporter or court reporter, and transcribed by the same. (See Dk. 133, statements of Glauberman, Cox, Covitz and Kelly). For the reasons set forth in Duffee, the court finds those statements to be competent evidence and will consider them to the same extent as if they were affidavits. The bulk of defendants’ responses to the alleged facts challenge plaintiffs credibility, and urge the court to discount plaintiffs affidavit in support of her summary judgment motion because it conflicts with her deposition testimony given earlier. The court is well aware that in assessing a conflict under these circumstances, the court should disregard a contrary affidavit only if it constitutes an attempt to create a sham fact issue. Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986); Bohn v. Park City Group, Inc., 94 F.3d 1457, 1463 (10th Cir.1996). The rationale underlying such decisions is that the utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony. Franks, 796 F.2d at 1237. The court finds it unnecessary to examine the factors established in Franks. Plaintiffs affidavit does not contradict her earlier deposition testimony, but rather supplements it by adding details that are consistent with her earlier version of events, and about which she was not specifically questioned at the time." }, { "docid": "9998687", "title": "", "text": "of proof rule that governs customs forfeitures. See 18 U.S.C. § 981(d); 21 U.S.C. § 881(d); 19 U.S.C. § 1615. The Second Circuit, in analyzing this shared rule, has noted that “[n]o doubt uncertainty caused by the fungibility of money will make it difficult and in many cases impossible for claimants to satisfy this burden. But it is precisely the function of burden of proof rules to determine which party loses where evidence is lacking or at best ambiguous.” Banco Cafetero, 797 F.2d at 1161. Matos has tried to avoid summary judgment by stating that his guilty plea to the money laundering violations was coerced and that he in fact never attempted to disguise the source of the illegitimate funds. (Matos Response to Pl.R. 3(g) Stmt. ¶¶ 3-4.) Matos hopes that by contradicting his prior sworn statements, he can undermine the government’s demonstration of probable cause and create a genuine issue of material fact for trial. However, [i]t is well settled in this circuit that a party’s affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment____ As we stated in Perma Research: “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Mack v. United States, 814 F.2d 120, 124-25 (2d Cir.1987) (quoting Perma Research and Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969)); see also Trans-Orient Marine v. Star Trading & Marine, 925 F.2d 566, 572 (2d Cir.1991) (“The rule is well-settled in this circuit that a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony.”) Thus, Matos cannot avoid summary judgment by simply renouncing his prior sworn statements to create a material issue of fact based on his own credibility. Matos has also attempted to defeat summary judgment by raising an issue of" }, { "docid": "22347372", "title": "", "text": "statements made by Radobenko the deponent and Radobenko the affiant. Thus, we are presented with the question of whether contradictory testimony of a plaintiff alone can be used by him to defeat a defendant’s summary judgment motion where the only issue of fact results from the necessity of choosing between the plaintiff’s two conflicting versions. Specifically, appellant contends that there are presented the following issues of fact in the proofs which are both material and relevant: 1. Plaintiff Radobenko in his deposition testified under oath that he was offered employment with Kasper; in the affidavit, later filed in opposition to defendant’s motion for summary judgment, he denies that there was any such offer of employment. 2. Plaintiff Radobenko in his deposition testified that he agreed to go on a leave of absence with pay to consider the offer of new employment; his affidavit denies this. 3. Plaintiff Radobenko in his deposition testified that he “quit” the employ of AEC; in his affidavit and in other deposition testimony, he denies this. While the facts embraced in these three recitals are both material and relevant to the issues raised by the pleadings, we reject appellants’ efforts to characterize them as genuine issues of fact. When confronted with the question of whether a party should be allowed to create his own issue of fact by an affidavit contradicting his prior deposition testimony, the Court of Appeals for the Second Circuit held that no genuine issue of fact was raised. Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969). Therein the Court noted: “[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” 410 F.2d at 578. The very object of summary judgment is to separate real and genuine issues from those that are formal or pretended, so that only the former may subject the moving party to the burden of trial." }, { "docid": "22101252", "title": "", "text": "Supreme Court’s clear pronouncement limiting the scope of summary judgment, other circuits have carved out various exceptions under which a court may disregard self-serving and incredible testimony or affidavits. See, e.g., Seshadri v. Kasraian, 130 F.3d 798, 802 (7th Cir.1997) (explaining circumstances under which “testimony can and should be rejected without a trial [because] no reasonable person would believe it”); Johnson v. Washington Metro. Area Transit Auth., 883 F.2d 125, 128 (D.C.Cir.1989) (“The removal of a factual question from the jury is most likely when a plaintiffs claim is supported solely by the plaintiffs own self-serving testimony, unsupported by corroborating evidence, and undermined either by other credible evidence, physical impossibility or other persuasive evidence that the plaintiff has deliberately committed perjury.”). In cases that ICA contends are similar to the present one, we have held that a court may disregard a “sham” affidavit that a party files to create an issue of fact by contradicting the party’s prior deposition testimony. See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991) (“ ‘[I]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.’ ” (quoting Foster v. Arcata Assocs., Inc., 772 F.2d 1453, 1462 (9th Cir.1985))); cf. Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, -, 119 S.Ct. 1597, 1603-04, 143 L.Ed.2d 966 (1999) (recognizing, without endorsing, similar “sham affidavit” holdings of every circuit). In the present case, Leslie’s letters to ICA appear to contradict his assertion of a contract entitling him to a percentage fee. This is different, however, from our “sham affidavit” cases, because Leslie’s deposition testimony and sworn declaration in this case are consistent and are contradicted only by Leslie’s unsworn letters. See Shockley v. City of Newport News, 997 F.2d 18, 23 (4th Cir.1993) (explaining that a sworn affidavit is not a “sham” merely because it contradicts unsworn letters). Additionally, Leslie’s deposition testimony and sworn declaration seek to" }, { "docid": "3405939", "title": "", "text": "met him. I don’t know what job he has or if he is still up there. Q. How old is he? A. I’m not sure. I don’t know. Q. Do you have an estimate of how old he is? A. Not really, I never laid eyes on him, so I couldn’t even guess.... Q. How about Melame Collins? A. No, never met her. Q. Do you know what positions any of those ... folks were performing when they were employed by Cabot, assuming they were employed by Cabot? A. No, I don’t. Q. Do you know whether any of those folks are still employed by Cabot? A. Not Certain. Q. Do you know whether any of those individuals were performing the same duties or substantially the same duties wMch you performed at the time you were terminated? A. No. McDonald Dep. at 60-61. In Barwick v. Celotex Corp., 736 F.2d 946 (4th Cir.1984), the plaintiff, “in order to resurrect Ms law suit when faced with [a] summary judgment motion” filed a similar affidavit “in the hope of creating an issue of fact....” Id. at 959. The Court observed: [t]he entire content of the affidavit is con-elusory, it does not set forth facts of which the plaintiff has personal knowledge and it does not give specific facts, but only generalities. If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly dimmish the utility of summary judgment as a procedure for screening out sham issues of fact. Id. at 960 (internal quotation marks and citations omitted). The Court of Appeals for the Seventh Circuit likewise held: [a] party may not create a genuine issue of fact by contradicting his own earlier statements, at least without a plausible explanation for the sudden change of heart. As we have recently stated, “[i]t is well established that a party cannot create a genuine issue of fact by an affidavit containing conclusory allegations wMch contradict plain admissions in prior deposition or otherwise sworn testimony.” Richardson v." }, { "docid": "18788670", "title": "", "text": "no specifics of the fraud claim. In a subsequent affidavit, the president referred to a conversation in which a representative of the defendant allegedly stated that the defendant “never had any intention of performing the ... contract.” Id. at 577 (emphasis deleted). The Second Circuit concluded that the district court had properly granted summary judgment since the statement in the affidavit was blatantly inconsistent with the earlier deposition. “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Id. at 578 (citations omitted). The Second Circuit’s rationale has been followed by other courts faced with a party’s attempt to create a factual dispute through a contradictory affidavit. For example, in Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir.1975), the Ninth Circuit affirmed a grant of summary judgment where an issue of fact existed “only because of the inconsistent statements made by Radobenko the deponent and Radobenko the affiant.” Id. at 543. The court recognized that “[t]he very object of summary judgment is to separate real and genuine issues from those that are formal or pretended,” id. at 544 (citation omitted), and concluded “that the issues of fact created by Radobenko are not issues which this Court could reasonably characterize as genuine; rather, they are sham issues which should not subject the defendants to the burden of a trial.” Id. The Eleventh Circuit authority is Van T. Junkins & Associates v. U.S. Industries, 736 F.2d 656 (11th Cir.1984). In that case, this court affirmed a grant of summary judgment, holding that a district court may properly find that a party’s contradictory affidavit is a sham. “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Id. at 657. See also Camfield Tires," }, { "docid": "5403405", "title": "", "text": "on the City’s claim of negligent misrepresentation. We review a district court’s grant of summary judgment de novo. Stuart v. General Motors Corp., 217 F.3d 621, 630 (8th Cir. 2000). A. Striking of Sparks’s Affidavit The City first argues that the district court erred in striking Sparks’s affidavit from the record, claiming that Sparks’s subsequent affidavit does not directly contradict his previous deposition testimony. The City relied on Sparks’s affidavit in response to SWBT’s motion for summary judgment. SWBT counters that the district court did not err in striking the affidavit because it amounted to a “sham” affidavit under this court’s precedent. Under Federal Rule of Civil Procedure 56(c), we will sustain an entry of 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 summary judgment as a matter of law.” Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1363 (8th Cir.1983). In Camfield, we addressed “the troublesome issue of whether summary judgment may be granted when one of the parties after giving a deposition later files an affidavit with directly contrary statements.” Id. In affirming the district court’s grant of summary judgment for the defendant, this court held that an affidavit filed by the plaintiff in opposition to a motion for summary judgment that directly contradicted the plaintiffs previous deposition testimony was insufficient to create a genuine issue of material fact under Rule 56. Id. at 1365. We stated: The very purpose of summary judgment under Rule 56 is to prevent “the assertion of unfounded claims or the interposition of specious denials or sham defenses ....” 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2712 (1983). If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own earlier testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of" }, { "docid": "3485773", "title": "", "text": "party may not create a genuine issue of material fact by contradicting deposition testimony with a more recent affidavit. In Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir.1984), the Sixth Circuit recognized that “[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” As a result, a party cannot create a genuine issue of material fact by filing an affidavit, after a motion for summary judgment has been filed, that contradicts his earlier deposition testimony. Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986). In the present case, however, the Court finds a genuine issue of material fact regarding Broadway’s dealings with USLC, without respect to Bailen’s May 22, 1999, affidavit. In his 1996 deposition testimony, Bailen stated that everyone on his customer price list had sold batteries to USLC. (Bailen depo. of Sept. 26, 1996, at 19). He recalled purchasing “scrap batteries” from Broadway. (Id. at 24-25). Construed most strongly in the Respondents’ favor, this testimony is sufficient to raise a genuine issue of material fact as to whether Broadway ever dealt directly with USLC. Without question, Bailen’s subsequent January 22, 1999, deposition testimony is inconsistent with his September 26, 1996, testimony. In his 1999 testimony, Bailen failed to recall dealing directly with Broadway. This inconsistency does not mean, however, that Broadway is entitled to judgment as a matter of law. Rather, it simply creates a genuine issue of material fact for the trier of fact to resolve. Bail-en’s deposition testimony presents a situation quite unlike the traditional scenario, in which a party first makes a damaging statement in a deposition and later tries to undo the harm by submitting a, contradictory affidavit. Herein, Bailen’s initial deposition testimony was favorable to the Respondents. To the extent that his 1999 testimony contradicts his former testimony, that contradiction favors Broadway, not the Respondents. In light of the traditional role" }, { "docid": "23000631", "title": "", "text": "vaccine caused the reaction in this particular case. We agree with the district court that, if limited to the evidence set forth above, summary judgment in this case would be “unproblematic.” In an affidavit attached to plaintiffs’ response to defendant’s motion for summary judgment, however, Dr. Cox states: It is my opinion that the DPT vaccine administered to Tyressa Rohrbough on February 2, 1984 caused the neurological injuries from which she has suffered and continues to suffer. This statement alone would appear to defeat defendant’s motion for summary judgment unless, as the district court found, Dr. Cox’s affidavit is in such conflict with his earlier deposition testimony that the affidavit should be disregarded as a sham issue of fact. In Barwick v. Celotex Corp., 736 F.2d 946 (4th Cir.1984), this court considered a situation in which a plaintiff, when faced with a summary judgment motion, submitted an affidavit that contradicted his prior sworn deposition testimony: “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” A genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff’s testimony is correct. Barwick, 736 F.2d at 960 (citations omitted). Dr. Cox’s deposition contrasts starkly with his affidavit. After explaining at length on deposition the possible theories by which DTP vaccine can cause injury similar to that of Tyressa, Dr. Cox refused, when questioned directly concerning the cause of Tyressa Rohrbough’s injuries, to give as his opinion that a causal link existed between the vaccine and the minor plaintiff’s symptoms. Yet months later, when faced with defendant’s motion for summary judgment, Dr. Cox boldly gave his opinion by way of affidavit that the vaccine caused the injuries in question. In addition, like the affidavit in Barwick, Dr. Cox’s affidavit is very nearly entirely con-clusory and devoid of specific facts to support his" }, { "docid": "13510154", "title": "", "text": "at 1170 n. 2; Carney v. Dexter Shoe Co., 701 F.Supp. 1093, 1103 (D.N.J.1988). In Martin, the parents of a child with birth defects sought damages from the manufacturer of a drug and contended the drug taken by the mother during her pregnancy caused the defects. After discovery was taken, the defendant moved for summary judgment based upon the deposition of the mother, answers by plaintiffs to interrogatories and an affidavit from an expert. Plaintiffs opposed the motion with an affidavit which squarely contradicted her earlier sworn statements. 851 F.2d at 705. The Circuit recognized the “affidavit [was] submitted only after [plaintiffs] faced almost certain defeat in summary judgment, [and that it] flatly contradicted no less than eight of [the mother’s] prior sworn statements^.]” Id. The court, in quoting the Second Circuit, noted: “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Id. at 706 (quoting Perma Research and Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969)). In this case, Maietta submitted his affidavit after his deposition “only after [he] faced almost certain defeat in summary judgment_” Martin, 851 F.2d at 705. Maietta flatly contradicted no less than six of his prior sworn statements concerning: (1) his job opportunities and offers from other employers while at UPS — at deposition he said he made no such applications and had no such job offers or opportunities, his affidavit is to the contrary, see supra, at 1349 n. 4, (2) what he was given at the time of his first interview — at deposition he stated he was not given the Policy Book or other manual, his affidavit says he received the Policy Book and read it, see supra, at 1351 and n. 6, (3) the length of time he was interviewed — at deposition he said it was three hours, in his affidavit he says four hours, see supra, 1353 n." } ]

[ { "docid": "9728432", "title": "", "text": "you recall, it was set down at one time and continued at his request and set down again .and he is not able to go to court again. He is not able to go to court today. Now, the court has the responsibility of seeing that the work is accomplished that is set out for it. I think we have been more than understanding in his case. Mr. Buckalew is a former district attorney. He has had lots of experience and I am sure will represent you very ably before this court. I consider Mr. Buckalew able counsel and [he] has had lots of experience in this respect. I hope you understand the court’s position, that is, we can’t continue it further. I have no objection to granting Mr. Buckalew’s request if the Government does not oppose it. We can pick the jury this morning and then go to trial tomorrow morning.” . Under the practice then in effect in Alaska, counsel appointed to represent an indigent defendant were apparently entitled to receive certain compensation. . As to this the court said: “[T]ou have more of a moral obligation than any other person based upon the fact you office with counsel who is not present. That is one of the responsibilities you take on when you office with counsel, is to protect him when he is not able to protect himself.” . Crooker v. State of California, 357 U.S. 433, 439, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Chandler v. Fretag, 348 U.S. 3, 9, 75 S. Ct. 1, 99 L.Ed. 4; Lee v. United States, 98 U.S.App.D.C. 272, 235 F.2d 219, 221; Smith v. United States, 5 Cir., 216 F.2d 724, 726. . His desire not to be represented by Buckalew would presumably have been more forcefully expressed had he been aware of Buckalew’s reluctance to serve and his low opinion of a White Slave offense as compared to “a good respectable crime, like robbery or murder.”" } ]

[ { "docid": "14996314", "title": "", "text": "Chief Justice Nix dissented, and was joined in his dissent by Justice Zappala, because he concluded that, in accordance with Bell, Banks had assumed a function allocated to counsel and \"was acting as his own attorney and was representing himself.” 521 A.2d at 23. While Chief Justice Nix's interpretation of Pennsylvania case law would require a waiver colloquy so as to afford federal constitutional protections, his was not the majority opinion. None of the Pennsylvania cases referred to us by Banks appears to be directly on point. Further, it is not our province to determine whether the Pennsylvania Supreme Court's decision was contrary to, or an unreasonable application of, its own precedent, but, rather, of clearly established federal precedent. The three federal cases that Banks cites in addition to McKaskle and Faretta as defining an \"exclusive province of counsel” at trial are inapposite. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) is concerned exclusively-with whether appellate counsel is obligated to raise all nonfrivolous claims proffered by the appellant. See id. at n. 7. In Vess v. Peyton, 352 F.2d 325 (4th Cir.1965), cert. denied, 383 U.S. 953, 86 S.Ct. 1215, 16 L.Ed.2d 214 (1966), the Fourth Circuit affirmed the district court's determination that there was no error in appellant's not having been provided counsel at a preliminary hearing (a determination that is no longer good law) and that the record supported the conclusion that appellant's guilty plea was knowingly and voluntarily offered. The court also rejected appellant's contention that the failure to call certain witnesses suggested by the defendant did not constitute inadequate representation of counsel. Likewise, Buckelew v. United States, 575 F.2d 515 (5th Cir.1978) rejected a claim that an uncalled out-of-state witness constituted ineffective assistance of counsel. None of these cases could be read to mandate that a trial judge treat defendant's insistence upon testifying, and his introduction of evidence as part of that testimony — or even the directing and conducting of the cross-examination — as an assertion of a right to proceed pro se. . See, e.g., Robinson v. United States," }, { "docid": "5992399", "title": "", "text": "if not mentally ill”). . See, e. g., Rinehart v. Brewer, 561 F.2d 126, 130 (8th Cir. 1977). . See, e. g., United States ex rel. Delle Rose v. LaVallee, supra at 571 (following wife’s death, defendant was “in a state of severe agitation,” and was “dazed and bewildered much of the time\"). . Barnes v. United States, Crim.No. 923-69 (D.D.C. Nov. 3, 1976). . Tr. 65-67, 74-76. . 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The Jackson Court emphasized “[tjhe danger that matters pertaining to the defendant’s guilt will infect the jury’s findings of fact bearing upon voluntariness, as well as its conclusion upon that issue itself.” Id. at 383, 84 S.Ct. at 1784. The Court added that when the jury considers both “reliability and voluntariness” of a confession, a reviewing court cannot presume “a reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant . . \" Id. at 387, 84 S.Ct. at 1786. See Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967); Lindsey v. Craven, 521 F.2d 1071, 1072 (9th Cir. 1975); Clifton v. United States, 125 U.S.App.D.C. 257, 262-63, 371 F.2d 354, 359-60 (D.C.Cir.1966), cert. denied, 386 U.S. 995, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967). . 150 U.S.App.D.C. at 322, 464 F.2d at 831. . Id., 150 U.S.App.D.C. at 321, 464 F.2d at 830. . Nor did Barnes raise the voluntariness issue in his original pro se § 2255 petition. Even if he had raised the voluntariness question, however, it would not necessarily preclude action on this petition: Denial of a motion for relief without a hearing cannot be taken as a denial on the merits for the purpose of determining whether a subsequent application based on the same ground may be summarily denied, and it is doubtful whether even a full hearing on the merits may be deemed “adequate” for this purpose if the applicant was through no fault of his own not represented by counsel. Tucker v. United States, 138 U.S.App.D.C. 345, 347, 427 F.2d 615, 617 (1970) (footnote omitted)." }, { "docid": "23069343", "title": "", "text": "misunderstand the waiver or assert any confusion as to the meaning of the term “miscarriage of justice” used by the Court during the colloquy. In our Order entered on January 8, 2007, we granted the certificate of appeala-bility as to the following issues: (1) whether appellant’s waiver of his right to appeal and collaterally challenge his sentence was knowing and voluntary and whether that waiver is enforceable, see United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir.2001); (2) if so, whether that waiver either bars consideration of appellant’s 28 U.S.C. § 2255 motion or precludes relief on the merits of his claim that his counsel rendered ineffective assistance by failing to file a requested appeal, see, e.g., Campusano v. United States, 442 F.3d 770, 773-75 (2d Cir.2006); Gomez-Diaz v. United States, 433 F.3d 788, 793-94 (11th Cir.2005); and (3) whether appellant is entitled to relief on the claims that he asserts his counsel should have raised on direct appeal. The Clerk will request counsel to represent appellant under Internal Operating Procedure 10.3.2. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and § 2255(d). See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir.2007). We review the validity of a waiver de novo. United States v. Khattak, 273 F.3d 557, 560 (3d Cir.2001). II. Discussion Criminal defendants may waive both constitutional and statutory rights, provided they do so voluntarily and with knowledge of the nature and consequences of the waiver. See Town of Newton v. Rumery, 480 U.S. 386, 393, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987); Brady v. United States, 397 U.S. 742, 752-53, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Adams v. United States, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). The right to appeal in a criminal case is among those rights that may be waived. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). We have acknowledged the clear precedent validating waivers of basic rights, even in criminal cases. Khattak, 273 F.3d at 561. Noting the benefits of such waivers to the defendant," }, { "docid": "863371", "title": "", "text": "v. Massachusetts, 382 F.2d 292 (CA1 1967). Appellant does not claim that the California state bail system was administered with caprice or discrimination. This contention is meritless. RIGHT TO RETAINED COUNSEL Here, appellant contends that the seizure of his funds effectively precluded him from retaining private counsel of his choice. This claim is made despite the fact that appellant was represented by appointed counsel at the trial. Appellant argues that cases such as United States v. Jones, 369 F.2d 217, 219 (CA7 1966), cert. denied sub nom. Watkins v. United States, 386 U.S. 944, 87 S.Ct. 976, 17 L.Ed.2d 875 (1967), give him a constitutional right to retained counsel. We disagree. The broad statement that an accused has a constitutional right to retained counsel must be qualified in at least two important respects. Either the accused must have been denied effective assistance of appointed counsel, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), or he must have been entirely unrepresented by counsel. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954). In United States v. Jones, supra, the effective assistance of appointed counsel prevented the accused from successfully claiming a constitutional deprivation by reason of absence of counsel of his own choice. This circuit is in accord. Sherman v. United States, 241 F.2d 329, 331, 332, 336 (CA9 1957), cert. denied 354 U.S. 911, 77 S.Ct. 1299, 1 L.Ed.2d 1429; rehg. denied 355 U.S. 852, 78 S.Ct. 78, 2 L.Ed.2d 61. Here appellant makes no claim of ineffective assistance of counsel, and is entitled to no relief on this claim. CLAIM FOR JUDGMENT Although prosecuted under the shield of a 42 U.S.C. § 1983 Civil Rights action, the appellant’s demand for judgment for the sum of $4,575.94, seized under the jeopardy assessment of the California Franchise Tax Board is nothing less than a claim for a tax refund. United States v. Freedman, 444 F.2d 1387 (CA9 1971), cert. denied sub nom. Freedman v. United States, 404 U.S. 992, 92 S.Ct. 538, 30 L.Ed.2d 544, is authority for the proposition that regardless" }, { "docid": "12548794", "title": "", "text": "the opportunity to do so’. In effect, therefore, Ripple was not claiming a denial of his right to court-appointed counsel, but a denial of the opportunity to secure private counsel of his own choosing.” Id. at 306. The Court remanded the case for a District Court hearing on the habeas corpus petition “ * * * as implemented by the more specific allegations contained in [his] application for a certificate.” Id. at 307. It is well established that where a defendant is able to retain counsel of his own choice, he must be given a reasonable opportunity to do so. “It is a fundamental principle that an accused be permitted to choose his own counsel, the practice of assigning counsel being reserved for cases where the accused cannot or does not select his own.” Lee v. United States, 98 U.S.App.D.C. 272, 274, 235 F.2d 219, 221 (1956). The right of an accused to counsel for his defense, secured in state prosecutions by the Fourteenth Amendment guarantee of due process, includes not only the right to have an attorney appointed by the state where necessary, but also the right of an accused to retain counsel of his own choosing. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954); Cooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958). Here, relator would have been able to retain counsel of his own choosing had his money been returned to him. The Commonwealth, in its brief contra relator’s petition, presents three major objections to the granting of the writ. The first is that, with regard to relator’s failure to testify on his own behalf at his evidentiary hearing, “The petitioner has failed to meet his burden through his own inaction.” As authority for this assertion, it cites Bolden v. Pegelow, 218 F.Supp. 152 (E.D.Va. 1963); and Sewell v. Kennedy, United States Court of Appeals, 4th Cir., Memorandum Order, March 26, 1964, as standing for the proposition that “ * * * a petitioner in" }, { "docid": "15142519", "title": "", "text": "issue appears to have had validity at the time of the trial. See Eddings v. Oklahoma, 455 U.S. 104, 113-114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Agreeing with the majority, I would remand that issue for an evidentiary hearing, so that appellate counsel, if he can recall, may explain why he failed to raise that issue on appeal. He may have had strategic reasons for omitting the issue, or his client may have requested that it be omitted. Because no court has yet heard testimony from appellate counsel on that question, it is appropriate for the district court to decide whether appellate counsel’s performance met the test under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, I depart from the decision by the majority to remand this matter to the district court for consideration of ineffective assistance of appellate counsel for failing to raise the other issues, to-wit, (1) ineffective assistance of trial counsel; (2) other jury instructions requiring the jury to reject the death penalty unanimously before considering a life sentence; and (3) the hesitation of Juror Chatman to reply in a more positive matter at the time of the jury poll. The general principles of ineffective assistance of counsel bear repeating, to some degree. First, there is a strong presumption that counsel was constitutionally effective. Strickland, 466 U.S. at 688,104 S.Ct. 2052. Second, counsel decides which issues to pursue on appeal and there is no duty to raise every possible claim. See Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). The “process of ‘winnowing out weaker arguments on appeal and focusing on’ those most likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (quoting Jones v. Barnes, 463 U.S. at 751-52, 103 S.Ct. 3308). Finally, “[effective advocacy does not require the appellate attorney to raise every non-frivolous issue under the sun, of course.” Mason v. Hanks, 97 F.3d 887, 893 (7th Cir.1996) (citing" }, { "docid": "15046301", "title": "", "text": "389 F.Supp. 917, 921-922 (D.D.C.1975). . See, e. g., Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958); Chandler v. Fretag, 348 U.S. 3, 9-10, 75 S.Ct. 1, 99 L.Ed. 4 (1954); Releford v. United States, 288 F.2d 298, 301 (9th Cir. 1961); Lee v. United States, 98 U.S.App.D.C. 272, 274, 235 F.2d 219, 221 (1956). . Later, in denying Mardian’s post-trial motion for a new trial, the court amplified on the grounds for its ruling. It referred to the well established rule that a defendant’s right to an attorney of his choice is “not so absolute as to permit disruption of the fair and orderly administration of justice when another competent attorney is available to continue the defense. See generally Lofton v. Procunier, 487 F.2d 434, 435 (9th Cir. 1973); United States v. Harrelson, 477 F.2d 383, 384 (5th Cir.), cert. denied, 414 U.S. 847, 94 S.Ct. 133, 38 L.Ed.2d 95 (1973); McGill v. United States, 121 U.S.App.D.C. 179, 348 F.2d 791, 794-95 (1965).” JA 869, 389 F.Supp. at 921-922. The rule is undeniably sound but, as we develop more fully in text, the District Court failed to take adequate account of the strength of Mardian’s interest in light of the Kelly showing he had made in connection with his pretrial severance motion. Likewise, the court overestimated the degree of disruption, given the prosecutor’s determination not to oppose the Nov. 1 motion. . Cf. Giacalone v. Lucas, 445 F.2d 1238 (6th Cir. 1971), cert. denied, 405 U.S. 922, 92 S.Ct. 960, 30 L.Ed.2d 793 (1972). There the question was whether the District Court should have granted a continuance until the defendant’s chief counsel was released from the hospital. The court listed the factors to be considered, including significantly “whether the delay seems to be for legitimate reasons, or whether it is purposeful and dilatory * * *.” Id. at 1240. . In moving for severance at the Nov. 1 hearing, Mardian’s counsel emphasized: “I would also like the Court to consider all of the other grounds which we have raised for severance heretofore in" }, { "docid": "22297499", "title": "", "text": "relief in a proceeding under 28 U.S.C.A. § 2255. 3. Appellant alleges that he was denied his Sixth Amendment right to effective assistance of counsel. General conclusory allegations to this effect are inadequate as a matter of law, and impose no obligation upon the district court to hold an evidentiary hearing. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The only specifics alleged in appellant’s petition were that his appointed counsel failed to raise the objections which we have considered above, and failed to request a bill of particulars. Assuming that counsel erred in the latter respect and in failing to object to the admission of evidence, more is required to constitute denial of the effective assistance of counsel guaranteed by the Sixth Amendment. This court has repeatedly said that to be sufficient the allegations must disclose a performance by counsel so incompetent as to make the trial “a farce or a mockery of justice.” Stanley v. United States, 239 F.2d 765, 766 (9th Cir. 1956). It is at least clear that “accused persons are not guaranteed counsel who do not make mistakes” (Moore v. United States, 95 U.S.App.D.C. 92, 220 F.2d 198, 199 (D.C.Cir. 1955)); and the allegations of the present petition reveal nothing more than claimed errors by trial counsel of the extent and kind common to all human efforts. 4. Appellant’s brief also contains general allegations that collusion occurred between his counsel and govenment counsel, and that the prosecution knowingly employed perjured testimony. We do not consider these allegations because they initially appeared in papers filed in this court, and because they are only general charges lacking specificity. Since the allegations with which we have thus far dealt were either conclusory, or as a matter of law clearly entitled appellant to no relief under Section 2255, the district court did not commit reversible error in dismissing the petition, as to these allegations, without an evidentiary hearing. See Williams v. United States, 307 F.2d 366 (9th Cir. 1962). We should note, however, that the Supreme Court has recently held that where charges" }, { "docid": "22297498", "title": "", "text": "in the form of this one would not be vulnerable to attack even on direct appeal from a judgment of conviction. See United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Young v. United States, 109 U.S.App.D.C. 414, 288 F.2d 398 (D.C.Cir. 1961) ; Blumenfield v. United States, 284 F.2d 46, 49-50 (8th Cir. 1960); Young v. United States, 94 U.S. App.D.C. 54, 212 F.2d 236 (D.C.Cir. 1954). 2. Appellant asserts that the failure of the government to call the informer who purchased the marihuana as a witness denied appellant a constitutional right to confront and cross examine his accuser. He also complains that government agents were permitted to testify to statements made by the informer which were inadmissible hearsay. We rejected identical arguments in Cauley v. United States, 294 F.2d 318, 320 (9th Cir. 1961), on the grounds (1) that the government is not required to call all of the witnesses to a crime, and (2) that the erroneous admission of evidence, as such, is not a basis for relief in a proceeding under 28 U.S.C.A. § 2255. 3. Appellant alleges that he was denied his Sixth Amendment right to effective assistance of counsel. General conclusory allegations to this effect are inadequate as a matter of law, and impose no obligation upon the district court to hold an evidentiary hearing. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The only specifics alleged in appellant’s petition were that his appointed counsel failed to raise the objections which we have considered above, and failed to request a bill of particulars. Assuming that counsel erred in the latter respect and in failing to object to the admission of evidence, more is required to constitute denial of the effective assistance of counsel guaranteed by the Sixth Amendment. This court has repeatedly said that to be sufficient the allegations must disclose a performance by counsel so incompetent as to make the trial “a farce or a mockery of justice.” Stanley v. United States, 239 F.2d 765, 766 (9th Cir. 1956). It is at" }, { "docid": "21592871", "title": "", "text": "in which he was a named plaintiff, Judge Langston replied “I don’t care who you’ve sued, Mr. Smith_” (App. 76). At one point, however, the judge pondered the idea of appointing a different attorney, but the prosecutor vigorously argued against doing so and the judge decided against it. (App. 71-72). Although the judge did give Smith the opportunity to speak, Judge Langston failed to ask Smith any questions. Without further inquiry, and notwithstanding Marquette’s expressed concern about the conflict, the judge overruled Smith’s motion for new counsel. A federal lawsuit pitting the defendant against his attorney certainly suggests divided loyalties and gives the attorney “a personal interest in the way he conducted [Smith’s] defense — an interest independent of, and in some respects in conflict with, [Smith’s] interest in obtaining a judgment of acquittal.” Douglas v. United States, 488 A.2d 121, 136 (D.C.App.1985) (finding a conflict of interest when defendant filed a complaint against his retained counsel with the Office of the Bar Counsel). Also instructive is United States v. Hurt, 543 F.2d 162 (D.C.Cir.1976). In Hurt, appellate counsel argued that trial counsel was constitutionally ineffective, prompting the trial counsel to file a defamation claim against the appellate attorney. Id. at 164. The appellate court had remanded the case to the district court for an evidentiary hearing on the ineffectiveness claim, and appellate counsel objected to continuing his representation with the defamation suit hanging over his head. Id. The trial judge ordered him to continue his representation. Id. The Court of Appeals reversed, holding that there was a clear conflict of interest, even though the chance of the defamation suit succeeding was minuscule. Id. at 166-167. 0 We believe Smith showed sufficient cause for substitution of counsel when he cited both a conflict of interest between him and his appointed attorney and explained that they were unable to communicate with each other. Once good cause was shown, the trial judge violated Smith’s sixth amendment rights by failing to appoint different counsel to assist him at the omnibus hearing, which was a critical stage of the proceedings. The important issues considered" }, { "docid": "5992392", "title": "", "text": "voluntary statement.” That observation, however, was followed by the phrase, “since this police officer asked him no questions.” The issue thus addressed was whether Barnes volunteered the remark, not whether the statement was voluntary in a constitutional sense. The opinion never discussed the claim that defendant’s due process rights were violated by the admission of his allegedly involuntary statements. The “files and records” of the case therefore do not reveal any prior adjudication of appellant’s voluntariness claim, and the district court’s denial of petitioner’s § 2255 motion on that ground was erroneous. III. The government contends that even if the district court ruling was in error, Barnes is precluded from raising the volun-tariness question in this petition because he “deliberately bypassed the orderly federal procedures provided at or before trial and by way of appeal . . . .” Brief for Appellee at 9, quoting Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 1075 n. 8, 22 L.Ed.2d 227 (1969). Because the present record is subject to differing interpretations, however, we cannot determine whether counsel’s failure to raise the voluntariness claim was an informed and deliberate strategic waiver. Standing alone, counsel’s trial conduct might suggest that his failure to object was intentional. Counsel not only remained silent when Barnes’ statements were introduced; he even tried to capitalize on them by arguing that they demonstrated that the remorseful Barnes had claimed from the outset that the fire was an accident. Moreover, when the prosecutor specifically raised the voluntariness issue by requesting an instruction on that question, counsel tried to prevent the charge from being given, thus rejecting yet another opportunity to have the statements excluded from the jury’s consideration. On the other hand, counsel’s pretrial efforts to have these same statements suppressed on Miranda grounds belies any suggestion that his repeated waiver of the vol-untariness issue was an intentional trial tactic; rather, through lack of adequate legal or factual preparation, counsel may simply have been unaware that the alleged involuntariness of the statements would constitute an independent basis for their suppression. Under this hypothesis, counsel’s efforts" }, { "docid": "5568841", "title": "", "text": "postage meter checks. Further, Weaver’s trial counsel established in cross-examination of the government’s witness that no document showed Weaver acting as a close-out supervisor on May 12. IV. Weaver claims that his trial counsel was constitutionally ineffective, in violation of the Sixth Amendment to the Constitution. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When this issue is raised for the first time on appeal, as it is here, our general practice is to remand to the dis- triet court for an evidentiary hearing unless it is clear from the record that counsel was -or was not ineffective, or that the supposed defect in representation amounted to a strategic choice by defense counsel. See United States v. Geraldo, 271 F.3d 1112, 1116 (D.C.Cir.2001); United States v. Richardson, 167 F.3d 621, 626 (D.C.Cir.1999); United States v. Pinkney, 543 F.2d 908, 915 (D.C.Cir.1976). The theory presumably is that trial counsel cannot be expected to argue his own ineffectiveness in a motion for a new trial, and so we ought to allow new counsel to argue it on appeal. Geraldo, 271 F.3d at 1116, points out that our approach may place us in a minority of one among the courts of appeals. (Other courts of appeals require defendants to raise their ineffectiveness claims only in a collateral proceeding. Id.) Rule 33 of the Federal Rules of Criminal Procedure requires new trial motions to be filed within 7 days of the verdict, yet our practice of remanding to the district court for an evidentiary hearing has the effect of greatly extending that time limit. Weaver’s claim of ineffectiveness, as set forth in his opening brief, is on two scores, both of which may be rejected without a remand for an evidentiary hearing. The first deals with counsel’s failure to object to the testimony of Carole Edwards, the forfeiture specialist who testified that Weaver’s expenditures far exceeded his known income from 1994 to 1996. Weaver basically repeats his claim that Edwards was an expert witness giving her “opinion, not fact.” Brief of Appellant at 39-40. We have already rejected" }, { "docid": "1919386", "title": "", "text": "PER CURIAM: Gerald Payne, a federal prisoner proceeding pro se, appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Payne v. United States, 546 F.Supp.2d 1312 (M.D.Fla.2008). We granted a certificate of appealability on the issue of “[wjhether appellate counsel was ineffective for failing to argue that the trial court erred by enhancing appellant’s sentence based on abuse of a trust position.” Payne, who received the enhancement based on his status as a pastor, asserts his appellate counsel provided him with ineffective assistance by failing to challenge his two-level sentencing enhancement for abuse of a position of trust. He notes this Court reversed the abuse-of-trust enhancement given to one of his codefendants who was also a pastor in United States v. Hall, 349 F.3d 1320 (11th Cir.2003). An ineffective-assistance-of-counsel claim presents a mixed question of law and fact, which this Court reviews de novo. Devine v. United States, 520 F.3d 1286, 1287 (11th Cir.2008). To prevail on a claim for ineffective assistance of counsel, a defendant must show (1) his counsel’s performance was deficient, and (2) this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). An attorney’s performance is deficient if he does not provide reasonably effective assistance. Id., 104 S.Ct. at 2064. “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. at 2065. In evaluating an attorney’s conduct, a court must avoid “the distorting effects of hindsight” and must “evaluate the conduct from counsel’s perspective at the time.” Id., 104 S.Ct. at 2065. The Supreme Court has held a criminal defendant’s appellate counsel is not required to raise all nonfrivolous issues on appeal. Jones v. Barnes, 463 U.S. 745, 751-54, 103 S.Ct. 3308, 3312-14, 77 L.Ed.2d 987 (1983). In so holding, the Court noted, “[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Id. at 751-52, 103" }, { "docid": "5992400", "title": "", "text": "L.Ed.2d 593 (1967); Lindsey v. Craven, 521 F.2d 1071, 1072 (9th Cir. 1975); Clifton v. United States, 125 U.S.App.D.C. 257, 262-63, 371 F.2d 354, 359-60 (D.C.Cir.1966), cert. denied, 386 U.S. 995, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967). . 150 U.S.App.D.C. at 322, 464 F.2d at 831. . Id., 150 U.S.App.D.C. at 321, 464 F.2d at 830. . Nor did Barnes raise the voluntariness issue in his original pro se § 2255 petition. Even if he had raised the voluntariness question, however, it would not necessarily preclude action on this petition: Denial of a motion for relief without a hearing cannot be taken as a denial on the merits for the purpose of determining whether a subsequent application based on the same ground may be summarily denied, and it is doubtful whether even a full hearing on the merits may be deemed “adequate” for this purpose if the applicant was through no fault of his own not represented by counsel. Tucker v. United States, 138 U.S.App.D.C. 345, 347, 427 F.2d 615, 617 (1970) (footnote omitted). See Price v. Johnston, 334 U.S. 266, 291, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). . Tr. at 540-41. . The following discussion ensued between counsel and the court: [PROSECUTOR]: I would propose . a simple instruction that there is evidence of a statement in the form of an admission or confession to a police officer, and before you may consider it as evidence in the case you must find beyond a reasonable doubt that it was voluntarily given by the defendant. [DEFENSE COUNSEL]: That would be a defense request, Your Honor. I don’t want to request that. I think that draws undue attention to it. THE COURT: I believe the cases say we must do it. [PROSECUTOR]: That’s right. THE COURT: Because otherwise they have no right to consider it. [DEFENSE COUNSEL]: Very well. Tr. at 579. It is difficult to perceive the exact basis of defense counsel’s objection. He may have wanted to avoid any mention of Barnes’ statements in the hope that the jury would forget about them. But this interpretation seems" }, { "docid": "20820702", "title": "", "text": "be of little worth.” (Citations omitted) Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954). This case teaches us that the right to retain counsel is absolute and if a state cannot deprive a defendant of this fundamental constitutional imperative, I find no difficulty in analogizing it to the situation at hand of denial by fear from a private source. The essence and meaning of Chandler is the right to one’s own available counsel. To say this is satisfied by forcing other counsel on an accused would be a sardonic conclusion to a cherished right and it matters not whether the culprit be the state or a third party private individual, the end result is the same. The willingness of courts to protect the right of the accused to counsel of his own choosing is illustrated by Lee v. United States, 98 U.S.App.D.C. 272, 235 F.2d 219 (1956), which held that the trial court abused its discretion by assigning as counsel an attorney to whom the accused objected. ' In reversing and remanding for a new trial, Judge Bazelon stated, “It is a fundamental principle that an accused be permitted to choose his own counsel.” Id. at 221. There the attorney in question had earlier in the same case been retained by the accused but had been given permission to withdraw when defendant objected to him. This attorney was appointed by the court when the accused’s chosen attorney withdrew from the case on the day of trial. Nor do I feel the position I take is nullified by the reality that coerced counsel conducted a defense. The argument that it apparently was satisfactory is sheer sophistry for the conflict of interest as existed in this case carries its own inherent prejudicial evil, albeit, the trial counsel’s efforts were conscientious. It has been said that although the accused may be represented by counsel of his own choice, “[effective] representation is lacking * * * if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents * * *" }, { "docid": "9382616", "title": "", "text": "(D.C.Cir.1979) (quoting Braniff Airways v. CAB, 379 F.2d 453, 466 (D.C.Cir.1967)). . Appellant claims the MSPB decision conflicts with the stricture set forth in Burkett v. United States, 402 F.2d 1002, 1007-08 (Ct.Cl.1968), that \"[f]or an offence so intimately related to the constitutional protections of free speech and the right to petition ..., both the malice and the intent-to-harm should be of relatively high order.” We note first that Burkett was decided prior to Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), which held that discharge for speech on matters not of public concern does not violate the First Amendment. Also, in Burkett the plaintiffs sole intent-to-harm was an intent to embarrass his superior, whereas here it can reasonably be inferred from the letters themselves that Barnes' intention was a good deal more serious — if his allegations had been credited the employees charged might have faced removal or worse. .Without substantial evidence of adverse effect, 5 U.S.C. § 2302(b)(10-ll) would also be violated. See supra note 5. . In its summary judgment opinion, the district court indicated it would consider evidence of anti-union animus in its decision on Barnes’ retaliatory discharge case. Barnes, mem. op. on cross-motions for summary judgment at 3-4, J.A. at 18-19. In that later decision, the court found that Barnes had failed to show the agency’s asserted reason for his discharge was pre-textual, which subsumes a finding of no anti-union animus. Barnes, mem. op. at 8, J.A. at 14. . Appellant asserts the issue of collective bargaining contract violations was not raised before the FLRA General Counsel. But in its appeal of the FLRA Regional Director’s decision not to issue an unfair labor practice complaint, Barnes' union specifically referred to relevant provisions of the collective bargaining agreement. J.A. at 301. Appellant also argues that because the charging party for the unfair labor practice complaint was his union rather than he personally, the dismissal of that complaint is not relevant to his appeal before the MSPB. This argument is baseless. The petition for the unfair labor practice complaint and Barnes’ appeal" }, { "docid": "5992394", "title": "", "text": "at trial to turn Barnes’ remarks to his advantage can be seen as only an attempt to make the best of a bad situation, the. trial judge previously having held the statement admissible. These conflicting interpretations of the record can be resolved only by an evi-dentiary hearing in the district court. Should the court conclude that counsel’s failure to raise the voluntariness issue amounted to a “deliberate bypass,” it may deny relief on the ground that appellant has waived his right to collateral review. If, however, the district court is unable to find that a deliberate bypass has occurred, it must then determine whether that standard, or the “narrower” “cause and prejudice” test, is the appropriate waiver rule in the circumstances of this case. Because Barnes’ trial predated the 1975 amendments to the Federal Rules of Criminal Procedure, the express waiver provisions contained in the present Rule 12(f) are inapplicable. Although we have held in similar circumstances that a procedural default forecloses collateral review under § 2255 only where it amounts to a “deliberate bypassing attributable to the defendant,” the district court should nevertheless consider whether the Supreme Court’s recent decision in Wainwright v. Sykes, supra, requires us to abandon that standard in favor of the “cause and prejudice” test. Compare Pacelli v. United States, 588 F.2d 360 (2d Cir. 1978) (applying “deliberate bypass” standard to constitutional claim not controlled by statutory waiver provision), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979) and Coco v. United States, 569 F.2d 367 (5th Cir. 1978) (denying § 2255 motion on “deliberate bypass” theory) with Sincox v. United States, 571 F.2d 876 (5th Cir. 1978) (employing “cause and prejudice” test to evaluate effect of procedural default on § 2255 review) and Ramsey v. United States, 448 F.Supp. 1264 (N.D.Ill.1978) (concluding that “cause and prejudice” standard replaces “deliberate bypass” test in § 2255 cases). On remand, therefore, the district court may pursue either of two procedures. The court may first determine whether Barnes’ statements were voluntary and hence admissible at trial. If so, appellant is entitled to no relief. Alternatively," }, { "docid": "22781224", "title": "", "text": "after the Government rested, despite their explicit waiver of an opening. Mr. Cosentino returned on April 16th and the same opportunities were made available to him. From April 11th, when testimony concerning Loicano began, to April 16th, Mr. Todaro was representing only Loicano. These three appellants claim that the trial judge, by proceeding with the trial while their retained counsel were absent and by appointing Mr. Todaro to represent all three on an interim basis, deprived them of the effective assistance of counsel and the right to counsel of their own choice. A defendant in a federal court is, of course, entitled under the Sixth Amendment to the assistance of counsel for his defense, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and where he is able to obtain counsel for himself he must be given a reasonable time and a fair opportunity to secure counsel of his own choosing. Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958); Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954). An accused’s right to select his own counsel, however, cannot be insisted upon or manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. United States v. Terranova, 309 F.2d 365 (2d Cir. 1962); United States v. Arlen, 252 F.2d 491 (2d Cir. 1958); United States v. Paccione, 224 F.2d 801 (2d Cir.), cert. denied, 350 U.S. 896, 76 S.Ct. 155, 100 L.Ed. 788 (1955); United States v. Mitchell, 138 F.2d 831 (2d Cir. 1943), cert. denied, 321 U.S. 794, 64 S.Ct. 785, 88 L.Ed. 1083 (1944). Thus, if a defendant does not give the court adequate notice that his retained counsel will be unable to attend the trial, the trial court may, in the exercise of its sound discretion, do what is reasonably necessary to meet the situation. And where the inability of retained counsel to serve gives promise of unreasonable delay or inconvenience in completing the trial, the court may require the defendant to secure other counsel." }, { "docid": "5992396", "title": "", "text": "the court may first determine whether the failure to raise the voluntariness issue either at trial or on appeal should preclude consideration of that claim in this § 2255 petition. If so, the court may deny relief without inquiring into the merits of appellant’s contentions. Remanded for further proceedings consistent with this opinion. . 28 U.S.C. § 2255 (1976). . Trial Transcript (Tr.) at 17-20, 297-99. . Id. at 58, 357. . Id. at 35, 313. . Closing Note and Summary of the Clinical Record of Bennie E. Barnes. St. Elizabeth’s Hospital (Dr. Elizabeth Strawinsky, July 21, 1970). . Id. . Letter to Clerk, United States District Court for the District of Columbia, from St. Elizabeth’s Hospital (July 17, 1970), Despite the statement as to a lack of causal connection, the hospital findings, if presented in evidence, would have provided a sufficient basis for sending the case to the jury on a plea of not guilty by reason of insanity. See McDonald v. United States, 114 U.S.App.D.C. 120, 122-23, 312 F.2d 847, 849-50 (1962) (en banc). This course was never pursued by defense counsel, however. . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Tr. at 579-80. See note 24 infra. . United States v. Barnes, 150 U.S.App.D.C. 319, 464 F.2d 828 (1972). . United States v. Barnes, Crim. No. 923-69 (D.D.C., Apr. 6, 1973); Barnes v. United States, Crim. No. 923-69 (D.C.Cir., Dec. 20, 1973) (denying motion to proceed on appeal in forma pauperis). . Lack of medical care was cited as part of the “totality of the circumstances” creating involuntariness in, e. g., Greenwald v. Wisconsin, 390 U.S. 519, 520, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968) (no medication offered for high blood pressure) and United States ex rel. Delle Rose v. LaVallee, 342 F.Supp. 567, 571, 574 (S.D.N.Y.1972) (back injury left suspect “racked with physical pain”), rev’d on other grounds, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973). . Courts have regularly considered the influence of alcohol and other drugs in producing involuntary statements. See e. g., Sanders v. United States, 373" }, { "docid": "22966339", "title": "", "text": "disclosure would pose a danger to the safety of any individual whose identity might be revealed. See Dennis v. United States, supra. Instead, the material will be kept secret only as long as appellant is represented by Mr. Erlbaum. Once the court has disqualified Mr. Erlbaum, the Government is prepared to summon appellant before the grand jury and, through its questions, reveal to him the same information that has been disclosed to the court in camera. Although grand jury proceedings are conducted in secret, witnesses who appear before it are not sworn to secrecy. Rule 6(e), F.R.Cr.P. The Government concedes that not only would appellant be free to discuss his grand jury testimony with anyone, but also that he could rehire Mr. Erlbaum to represent him at any subsequent criminal proceeding. It is fair to say that the secrecy interest, which the Government seeks to protect through the court’s in camera proceeding, would obtain only as long as it will take the appellant to reach the door to the grand jury room through which he will leave. Balanced against this minimal governmental interest are valuable rights of both appellant and Mr. Erlbaum. The in camera proceeding deprives them, respectively, of an opportunity to refute the claims made by the Government with respect to Taylor’s right to counsel of his choice, Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954); NCR Org’n Ltd. v. Bregman, 542 F.2d 128, 135 (2d Cir. 1976); Hull v. Cela-nese Corp., 513 F.2d 568, 572 (2d Cir. 1975); cf. Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932); United States v. Arlen, 252 F.2d 491 (2d Cir. 1958); his right to associate for the purpose of retaining legal representation, NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); and, the right of Mr. Erlbaum to practice one’s chosen profession, Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (1889); cf. Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); In re" } ]

[ { "docid": "9406399", "title": "", "text": "for Preliminary Injunction. Logging is now proceeding at the site. This case epitomizes the conflict between meaningful participation in public decisions about land use and deference to agency expertise. II. Analysis A.Preliminary Injunction “To obtain a preliminary injunction, a party must show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in its favor.” Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 523 (9th Cir.1984); See also Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200-01 (9th Cir.1980). These two formulations create a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. Coliseum, 634 F.2d at 1201. Plaintiffs must also show a significant threat of irreparable injury. Flynt Distributing Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.1984). The purpose of a preliminary injunction is to preserve the status quo. Coliseum, 634 F.2d at 1200. “A preliminary injunction is sought upon the theory that there is an urgent need for speedy action to protect the plaintiffs rights. By sleeping on its rights a plaintiff demonstrates the lack of need for speedy action.” Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir.1984). Purely monetary injuries are not normally considered irreparable. Coliseum, 634 F.2d at 1202. B. The Supplemental Information Report Plaintiffs argue that the increase from about 3 mmbf to 9.5 mmbf is a “significant new circumstance! ] or information relevant to environmental concerns and bearing on the proposed action or its impacts,” and obligates the Forest Service to supplement the existing EA pursuant to 40 C.F.R. § 1508.9(c)(l)(ii). The Forest Service responds that it took the requisite hard look at the proposed changes in volume and acreage and determined that the change was not significant and did not significantly affect the analyses or conclusion in the EA. The Forest Service determined that a supplemental EA was not warranted here because it determined that the effects of the project" } ]

[ { "docid": "11121369", "title": "", "text": "Cir.1980). A preliminary injunction is not a preliminary adjudication on the merits, but a device for preserving the status quo and preventing the irreparable loss of rights before judgment. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.1984). “In this circuit, the moving party may meet its burden by demonstrating either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor.” Los Angeles Mem’l Coliseum Comm’n, 634 F.2d at 1201. The district court found that Textile would suffer irreparable harm if the arbitration were not stayed, that the balance of hardships tipped in Textile’s favor and that it was in the public interest to stay arbitration. These findings were not clearly erroneous, and A..BMH does not contest them on appeal. Thus, to obtain a preliminary injunction, Textile needed only to show that serious questions were raised. The district court determined that not only were serious questions raised, but that Textile had shown a probability of success on the merits. The district court did not err in that assessment. A Section 2207 of the California Commercial Code controls contract interpretation when the parties have exchanged conflicting forms. See Diamond Fruit Growers, Inc. v. Krack Corp., 794 F.2d 1440, 1443-44 (9th Cir.1986) (holding that a corresponding section of the Oregon U.C.C. statute applies in such circumstances). It provides: (1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, un-léss acceptance is expressly made conditional on assent to the additional or different terms. (2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: (a) The offer expressly limits acceptance to the terms of the offer; (b) They materially alter it; or (c) Notification of objection to them has already been given or is given" }, { "docid": "22872993", "title": "", "text": "legal standards or clearly erroneous findings of fact. Id.; Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 752 (9th Cir.1982); Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). III. DISCUSSION 1. Standard For Issuing a Preliminary Injunction “To obtain a preliminary injunction, a party must show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in its favor.” Apple Computer, 725 F.2d at 523; see also Los Angeles Memorial Coliseum, 634 F.2d at 1200-01. These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. See 634 F.2d at 1201. Under any formulation of the test, plaintiff must demonstrate that there exists a significant threat of irreparable injury. See American Passage Media Corp. v. Cass Communications, Inc., 750 F.2d 1470, 1473 (9th Cir.1985) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1969)); Flynt Distributing Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.1984)). Because the Tribune has not made that minimum showing we need not decide whether it is likely to succeed on the merits. 2. Irreparable Injury Plaintiff initially claims injury because it will lose circulation and revenue, but as plaintiff seems to admit, this involves purely monetary harm measurable in damages. Plaintiff also asserts that “readers who do not reject the paper but continue to buy it and read it with its deficiencies are provided with a product that cannot effectively deliver a full range of information, features and viewpoints.” This is potentially three separate arguments. First, on its surface, it appears to seek the injunction to prevent harm to plaintiff’s readers. But plaintiff’s reply brief indicates that it does not seek “standing to sue for the intangible losses suffered by its readers.” Cf. Stein v. United Artists Corp., 691 F.2d 885, 896 (9th Cir.1982) (shareholder and creditors of corporation" }, { "docid": "8744547", "title": "", "text": "Nevada, to enjoin enforcement of Rule 199(1). On September 18, 2002, Bare filed an Opposition to Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction. (Doc. # 9.) Bare also filed Defendant’s Exhibits to Defendant’s Opposition to Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (Doc. # 10) on September 18, 2002. Michel filed Plaintiffs’ Reply in Support of Motion for Preliminary Injunction (Doc. # 12) on October 7, 2002. Rule 199(1) became effective on September 24, 2002. However, at the September 6, 2002, hearing on Michel’s Motion for Temporary Restraining Order, the parties stipulated that the State Bar would take no further enforcement action against Michel pending the resolution of the present litigation. II. LEGAL STANDARD The Ninth Circuit uses two alternative tests to determine whether a preliminary injunction should issue. According to the “traditional test”: The traditional equitable criteria for granting preliminary injunctive relief are: (1) a strong likelihood of success on the merits; (2) the possibility of irreparable injury to the plaintiffs if injunctive relief is not granted; (3) a balance of hardships favoring the plaintiffs; and (4) advancement of the public interest. Textile Unlimited, Inc. v. A..BMH & Co., Inc., 240 F.3d 781, 786 (9th Cir.2001) (citing Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1200 (9th Cir.1980)). A preliminary injunction is “a device for preserving the status quo and preventing the irreparable loss of rights before judgment.” Id. (citing Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.1984). In the alternative, the Ninth Circuit uses a “sliding scale” or balancing test: Preliminary injunctive relief is available to a party who demonstrates either: (1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips in its favor. A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001) (citing Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 874 (9th Cir.2000)). Additionally, pursuant to Federal Rule of Civil Procedure 65(a)(2), a United States District" }, { "docid": "11015968", "title": "", "text": "the licensing agreements by selling GAZLINE fittings in the U.S. LEGAL STANDARD A district court may issue a preliminary injunction when the moving party demonstrates either “(1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor.” Arcammi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir.1987); Los Angeles Memorial Coliseum Comm’n v. National Football League, 634 F.2d 1197, 1201 (9th Cir.1980). “These formulations are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases.” Big Country Foods, Inc. v. Board of Educ. of the Anchorage School District, 868 F.2d 1085, 1088 (9th Cir.1989). A. Trademark Infringement: Likelihood of Confusion For Ultrapure to prevail on its application for a preliminary injunction it must establish at least a fair chance of success on the merits. In a trademark infringement claim, a plaintiff is likely to succeed on the merits if the plaintiff can establish that the defendant’s use of its mark gives rise to a “likelihood of confusion” in the consuming public. Metro Pub. Ltd. v. San Jose Mercury News, 987 F.2d 637, 640 (9th Cir.1993); E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1290 (9th Cir.1992). A likelihood of confusion exists when consumers are apt to assume that a product or service is associated with a source other than its actual source due to similarities between the two sources’ marks or marketing techniques. Metro, 987 F.2d at 640; Nutri/System, Inc. v. Con-Stan Indus., Inc., 809 F.2d 601, 604 (9th Cir.1987). The Ninth Circuit has developed an eight factor test to determine whether a substantial likelihood of confusion exists in a trademark case: 1) strength of the allegedly infringed mark; 2) proximity or relatedness of the goods; 3) similarity of the sight, sound and meaning of the marks; 4) evidence of actual confusion; 5) degree to which marketing channels converge; 6) type of goods and degree" }, { "docid": "11462679", "title": "", "text": "is appropriate to issue a preliminary injunction if the moving party establishes either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in favor of the moving party. Stuhlbarg Intern. Sales Co. v. John D. Brush and, Co., 240 F.3d 832, 839-840 (9th Cir.2001). “ ‘These formulations are not different tests, but represent two points on a sliding scale in which the degree of irreparable harm increases as likelihood of success on the merits decreases.’ ” Associated Gen. Contractors of Calif. v. Coalition for Economic Equity, 950 F.2d 1401, 1410 (9th Cir.1991) (quoting Big Country Foods, Inc. v. Board of Education, 868 F.2d 1085, 1088 (9th Cir.1989)). Under either formulation of the test, a party seeking a preliminary injunction always must show that a significant threat of irreparable harm exists. American Passage Media Carp. v. Cass Communications, Inc., 750 F.2d 1470, 1473 (9th Cir. 1985). Thus, if the moving party cannot show irreparable harm, a court need not reach the issue of likelihood of success on the merits. Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1376 (9th Cir.1985). In addition, within the Ninth Circuit, the Court must also consider the public interest when it assesses the propriety of issuing an injunction. Sammartano v. First Judicial District Court, 303 F.3d 959, 973 (9th Cir.2002). Preliminary injunctive relief may not be the normal mechanism in FOIA cases. However, such relief has been found appropriate where a requesting party has established that its requests are entitled to expedited processing under the Act, and the government fails to process them in a timely manner. See Electronic Frontier Foundation v. Office of the Director of National Intelligence (“EFF\"), 2007 WL 4208311, *3-4, 2007 U.S. Dist. LEXIS 89585, *9 (N.D.Cal., Nov. 27, 2007) (citing cases). B. Likelihood of Success on the Merits. The Court finds this case remarkably similar to the facts presented in EFF, supra, wherein Judge Illston of this Court found that Plaintiff had carried its burden of demonstrating that it" }, { "docid": "6722726", "title": "", "text": "futile since INS’ position is already set. Id. at 746. Petitioners were not required to raise the non-accepting government issue in their administrative proceedings. II. Preliminary Injunction Although the parties now agree that the injunction issued by the Court should be made permanent, the original posture of the motion as briefed and argued was that of a preliminary injunction. Therefore, the Court begins its analysis under standards for a preliminary injunction. For a preliminary injunction to issue, Petitioners must meet their burden by demonstrating either: (1) a combination of probable success on the merits and the possibility of irreparable injury; or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. Textile Unlimited, Inc. v. A..BMH Co., Inc., 240 F.3d 781, 786 (9th Cir.2001); Mayo v. United States Gov. Printing Off., 839 F.Supp. 697, 699 (N.D.Cal.1992), aff'd, 9 F.3d 1450 (9th Cir.1993). These two formulations are not separate tests but represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir.1987). A. Harm The possibility of irreparable injury to the plaintiffs is extremely high. The Government’s position appears to be that because no one who is removed to Somalia returns to the United States, acceptance has .occurred. Yet nothing in the record attests to any first hand knowledge of prior transport success or failure to repatriate Somalis to the geographical territory of Somalia. The INS is likewise unable to inform the Court what happens to Somalis who are removed, or even to confirm that the Somalis handed over to the charter aviation company are in fact transported to Somalia. Petitioners state that they fear that they will be persecuted or even killed upon their arrival in Somalia. First Amended Pet. at 3. While Petitioners’ fears of persecution and torture may not be relevant to seeking asylum at this stage of their proceedings, they are certainly relevant to a finding of irreparable harm. Nothing has made this point more clearly than" }, { "docid": "16234627", "title": "", "text": "preliminary injunction balances the plaintiffs likelihood of success against the relative hardship to the parties.” Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir.2003). This circuit has recognized two different sets of criteria for preliminary injunctive relief. Under the traditional test, a plaintiff must show: “(1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases).” Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1120 (9th Cir.2005). The alternative test requires that a plaintiff demonstrate “either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.” Id. (emphasis in original). “These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success de creases. They are not separate tests but rather outer reaches of a single continuum.” Id. As we conclude below, the district court’s finding that R-CALF had a strong likelihood of success on the merits was premised on legal error. Further, we disagree with the district court’s assessment of the irreparable harm threatened by the Final Rule. Thus, we hold that a preliminary injunction was unwarranted in this case. A. Likelihood of Success on the Merits The district court identified three distinct grounds for its finding that R-CALF had a strong likelihood of success on the merits: (1) that the Final Rule was arbitrary and capricious under the APA; (2) that USDA had failed to satisfy NEPA’s procedural requirements; and (3) that USDA had failed adequately to consider the Final Rule’s effect on small businesses, as required by the RFA. None of these grounds withstands scrutiny. 1. Administrative Procedure Act The APA provides that a court, when reviewing agency action, shall “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse" }, { "docid": "22779141", "title": "", "text": "erroneous legal standard or on clearly erroneous findings of fact. San Antonio Community Hosp. v. Southern Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1233 (9th Cir.1997). We review issues of law underlying the preliminary injunction de novo. Id. The traditional equitable criteria for granting preliminary injunctive relief are: (1) a strong likelihood of success on the merits; (2) the possibility of irreparable injury to the plaintiffs if injunctive relief is not granted; (3) a balance of hardships favoring the plaintiffs; and (4) advancement of the public interest. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). A preliminary injunction is not a preliminary adjudication on the merits, but a device for preserving the status quo and preventing the irreparable loss of rights before judgment. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.1984). “In this circuit, the moving party may meet its burden by demonstrating either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its fa- vor.” Los Angeles Memorial Coliseum Commission, 634 F.2d at 1201. The district court concluded that the plaintiffs raised serious questions as to whether IIRIRA § 309(c)(7) limits the number of suspensions of deportation unaccompanied by adjustment of status, and whether the directives were properly issued. Although we express no view on the ultimate disposition of these issues, we can readily agree that the district court did not abuse its discretion in determining that a sufficiently serious question existed that justified the entry of a preliminary injunction. First, there is a legitimate question concerning whether issuance of the directives violated the Administrative Procedures Act. “When a federal agency issues a directive concerning the future exercise of its discretionary power, for purposes of APA section 553, its directive will either constitute a substantive rule, for which notice-and-comment procedures are required, or a general statement of policy, for which they are not.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir.1987). Except in specified" }, { "docid": "15640853", "title": "", "text": "Def. Ctr., Inc. v. U.S. EPA, 344 F.3d 832, 858 n. 36 (9th Cir.2003). Furthermore, it is fair to assume that a rate that is set arbitrarily, without reference to the Section 30(A) requirements, is unlikely to meet the equal access and quality requirements. Thus, a beneficiary plaintiff may insist that the State, at a minimum, consider the effect of a rate reduction on equal access to quality services in light of provider costs. Orthopaedic Hosp., 103 F.3d at 1500. V. Preliminary Injunction Standard The traditional factors for granting a preliminary injunction are: (1) a strong likelihood of success on the merits; (2) irreparable injury; (3) a balance of hardships in the movant’s favor; and (4) the public interest (in cases affecting it). See L.A. Mem’l Coliseum Com’n v. Nat’l Football League, 634 F.2d 1197, 1200 (9th Cir.1980). The moving party can meet its burden by making “a clear showing of either (1) a combination of probable success on the merits and a possibility of irreparable injury, or (2) that its claims raise serious questions as to the merits and that the balance of hardships tips in its favor.” Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 321 F.3d 878, 881 (9th Cir.2003). “These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.” Taylor By and Through Taylor v. Honig, 910 F.2d 627, 631 (9th Cir.1990). A. Irreparable Injury An irreparable injury is one that cannot be adequately redressed by a legal or equitable remedy following trial. Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir.1992). Plaintiffs come forward with adequate evidence that the rate reduction has a likelihood of reducing the recipient plaintiffs’ access to medical services, including services by pharmacists. (See supra note 5.) Medi-Cal re cipients who must wait until after trial to receive appropriate services may well sustain irreparable injury, whether in pain suffered or irremediable worsening of a condition. A future permanent injunction after a full trial is not an adequate remedy for someone" }, { "docid": "8744548", "title": "", "text": "of hardships favoring the plaintiffs; and (4) advancement of the public interest. Textile Unlimited, Inc. v. A..BMH & Co., Inc., 240 F.3d 781, 786 (9th Cir.2001) (citing Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1200 (9th Cir.1980)). A preliminary injunction is “a device for preserving the status quo and preventing the irreparable loss of rights before judgment.” Id. (citing Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.1984). In the alternative, the Ninth Circuit uses a “sliding scale” or balancing test: Preliminary injunctive relief is available to a party who demonstrates either: (1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips in its favor. A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001) (citing Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 874 (9th Cir.2000)). Additionally, pursuant to Federal Rule of Civil Procedure 65(a)(2), a United States District Court may consolidate “the hearing of an application for a preliminary injunction” with “the trial of the action on the merits.” Fed.R.Civ.P. 65. At the hearing conducted on Plaintiffs’ Motion for Preliminary Injunction on October 15, 2002, the parties agreed that all facts and applicable law were before the Court, and this action was ripe for full adjudication on its merits without the need for further trial. III. FINDINGS OF FACT AND CONCLUSIONS OF LAW Michel asserts that Rule 199(1) violates the Fust Amendment commercial speech doctrine as outlined in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. 447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Michel further contends that Rule 199(1) violates his Fourteenth Amendment right to equal protection. Bare offers a variety of arguments in response. First, Bare asserts that several state supreme courts have upheld the regulation of trade names, and Nevada’s regulations on the use of trade names should similarly be upheld. Second, relying principally on the United States Supreme Court’s holding in" }, { "docid": "12507784", "title": "", "text": "proceed with the loan; and i. Qualifying Ms. Alcaraz for an unaffordable loan; and 10. A (tenth) quiet title cause of action that the Wachovia defendants lack a lien or interest in the property. The complaint seeks, among other things, general, special and punitive damages, attorney fees, declaratory relief to the effect that Wachovia’s security interest in the property is void, and an injunction to prevent foreclosure of the property. The Wachovia defendants have responded to the complaint with a F.R.Civ.P. 12(b)(6) motion to dismiss its claims and a F.R.Civ.P. 12(f) motion to strike punitive damages claims. This Court elected to proceed first with Ms. Alcaraz’ preliminary injunction motion and will address the Wa-chovia defendants’ motions to dismiss and strike as necessary. DISCUSSION Preliminary Injunction Standards “A preliminary injunction is not a preliminary adjudication on the merits, but a device for preserving the status quo and preventing the irreparable loss of rights before judgment.” Textile Unlimited, Inc. v. A..BMH and Company, Inc., 240 F.3d 781, 786 (9th Cir.2001) (citing Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.1984)). The traditional equitable criteria for granting preliminary injunctive relief are: 1. A strong likelihood of success on the merits; 2. The possibility of irreparable injury to the moving party if injunctive relief is denied; 3. A balance of hardships favoring the moving party; and 4.Advancement of public interest. Textile Unlimited, 240 F.3d at 786 (citing Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1200 (9th Cir.1980)). “In this circuit, the moving party may meet its burden by demonstrating either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor.” Los Angeles Mem’ Coliseum Comm’n, 634 F.2d at 1201. Ms. Alcaraz argues that she is entitled to a preliminary injunction in that she faces irreparable harm from foreclosure of her residence, that she will succeed on the merits, and that there are “serious questions” raised by the Wachovia defendants’ trustee sale. The Wachovia" }, { "docid": "11462678", "title": "", "text": "person requesting records demonstrates a compelling need,” and (ii) “in other cases determined by the agency.” 5 U.S.C. § 552(a)(6)(E)(I). EFOIA defines “compelling need” to mean, “with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.” 5 U.S.C. § 552(a)(6)(E)(v). The EFOIA further provides that “[a]n agency shall process as soon as practicable any request for records for which the agency has granted expedition.” 5 U.S.C. § 552(a)(6)(E)(iii) (emphasis added). In response to the current motion for a preliminary injunction, Defendants submitted declarations from various individuals tasked with conducting the subject searches. The individual declarants each concede that Plaintiffs requests were given expedited status, and were moved to the front of the FOIA request queue. However, none of the defendant agencies, nor defense counsel at oral argument, have adequately demonstrated that compliance with the FOIA would be impracticable. ANALYSIS A. Legal Standards Applicable to Motions for Preliminary Injunction. The standards for obtaining a preliminary injunction are well established. It is appropriate to issue a preliminary injunction if the moving party establishes either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in favor of the moving party. Stuhlbarg Intern. Sales Co. v. John D. Brush and, Co., 240 F.3d 832, 839-840 (9th Cir.2001). “ ‘These formulations are not different tests, but represent two points on a sliding scale in which the degree of irreparable harm increases as likelihood of success on the merits decreases.’ ” Associated Gen. Contractors of Calif. v. Coalition for Economic Equity, 950 F.2d 1401, 1410 (9th Cir.1991) (quoting Big Country Foods, Inc. v. Board of Education, 868 F.2d 1085, 1088 (9th Cir.1989)). Under either formulation of the test, a party seeking a preliminary injunction always must show that a significant threat of irreparable harm exists. American Passage Media Carp. v. Cass Communications, Inc., 750 F.2d 1470, 1473 (9th Cir. 1985). Thus, if the moving party cannot show irreparable harm, a" }, { "docid": "5345416", "title": "", "text": "action on the merits. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). The Ninth Circuit has noted that [traditionally, a preliminary injunction is an equitable remedy granted where the moving party shows, (1) a likelihood of success on the merits, (2) a possibility of irreparable injury if the preliminary injunction is not issued, (3) a balance of hardships tipping decidedly in its favor, and (4) in some cases that granting the preliminary injunction will be in the public interest. Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1212-13 (9th Cir.1984). The standard in this Circuit for the entry of a preliminary injunction is as follows: “To obtain a preliminary injunction, a party must show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in its favor.” Apple Computer, 725 F.2d at 523; see also Los Angeles Memorial Coliseum, 634 F.2d at 1200-01. These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. See 634 F.2d at 1201. Under any formulation of the test, plaintiff must demonstrate that there exists a significant threat of irreparable injury. Oakland Tribune, Inc. v. Chronicle Publishing Co., Inc., 762 F.2d 1374, 1376 (9th Cir.1985); Associated General Contractors of California, Inc. v. Coalition for Economic Equity, 950 F.2d 1401, 1410 (9th Cir.1991). To show irreparable injury, a Plaintiff must show an immediate threatened injury for which there is no adequate remedy at law. Associated General Contractors, 950 F.2d at 1410. Americans With Disabilities Act. Plaintiff contends that Defendants violated Title III of the Americans With Disabilities Act [ADA], 42 U.S.C. § 12181, et seq., by failing to reasonably accommodate Plaintiffs learning disability. The relevant portion of the ADA provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place" }, { "docid": "19744375", "title": "", "text": "PER CURIAM Opinion; Concurrence by Judge WALLACE; Concurrence by Judge McKEOWN PER CURIAM. Grocery Outlet, Inc. (“Grocery”) appeals from a preliminary injunction granted in favor of Albertson’s, Inc. (“Albertson’s”), one of its competitors in the retail grocery industry. The district court concluded, at this stage of the proceedings, that Albert-son’s was the legal owner of the LUCKY mark for retail grocery services and products and rejected Grocery’s claim that Al-bertson’s abandoned the LUCKY mark through its publicly advertised announcement that LUCKY stores were converted to Albertson’s stores after a company merger in late 1999. We review a preliminary injunction for abuse of discretion. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 (9th Cir.2001). We review underlying legal issues de novo and findings of fact for clear error. Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1046 (9th Cir.1999). A preliminary injunction may be granted in a trademark case where the moving party demonstrates either “(1) a combination of probable success on the merits and the possibility of irreparable injury or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in [its] favor.” Sardi’s Rest. Corp. v. Sardie, 755 F.2d 719, 723 (9th Cir.1985) (emphases in original). “These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.” A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001) (quotation marks and citation omitted). They are not separate tests but “the outer reaches of a single continuum.” Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1201 (9th Cir.1980) (quotation marks and citation omitted). To establish infringement of a registered trademark, the trademark holder must show that it is (1) the owner of a valid, protectable mark, and (2) that the alleged infringer is using a confusingly similar mark. 15 U.S.C. § 1114(1); Brookfield, 174 F.3d at 1046. Abandonment is a defense to a claim of infringement of a registered trademark. 15" }, { "docid": "10713626", "title": "", "text": "State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983); Friends of Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir.2000). Under the APA the Court may overturn agency action only if the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” or in excess of its statutory jurisdiction or authority. 5 U.S.C. § 706(2)(A), (C); Idaho Farm Bureau v. Babbitt, 58 F.3d 1392, 1401 (9th Cir.1995). The standard of review is “highly deferential” and presumes an agency’s action to “be valid.” Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C.Cir.1976). A court reviewing an APA challenge, therefore, begins with the “presumption to which administrative agencies are entitled — that they will act properly and according to law.” FCC v. Schreiber, 381 U.S. 279, 289, 85 S.Ct. 1459, 1470, 14 L.Ed.2d 383 (1965). Section 705 of Title 5 of the United States Code permits a reviewing Court to postpone the effective date of agency action pending conclusion of the review proceedings. The test to be applied for issuing such a stay or injunction pending judicial review is the same as that applied to a request for preliminary injunction. In determining whether to award a preliminary injunction, the court must balance the plaintiffs likelihood of success against the relative hardship to the parties. See e.g., Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir.1999); Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1118 (9th Cir.1999). Specifically, Plaintiffs must demonstrate either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of the hardships tips in its favor. See Idaho Spoiling Congress v. Alexander, 222 F.3d 562, 565 (9th Cir.2000). These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. Id. IV. ANALYSIS Plaintiffs seek a preliminary injunction challenging the promulgation of the Road-less Rule as violative of, inter alia, NEPA. The Intervenors resist" }, { "docid": "12507785", "title": "", "text": "Inc., 739 F.2d 1415, 1422 (9th Cir.1984)). The traditional equitable criteria for granting preliminary injunctive relief are: 1. A strong likelihood of success on the merits; 2. The possibility of irreparable injury to the moving party if injunctive relief is denied; 3. A balance of hardships favoring the moving party; and 4.Advancement of public interest. Textile Unlimited, 240 F.3d at 786 (citing Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1200 (9th Cir.1980)). “In this circuit, the moving party may meet its burden by demonstrating either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor.” Los Angeles Mem’ Coliseum Comm’n, 634 F.2d at 1201. Ms. Alcaraz argues that she is entitled to a preliminary injunction in that she faces irreparable harm from foreclosure of her residence, that she will succeed on the merits, and that there are “serious questions” raised by the Wachovia defendants’ trustee sale. The Wachovia defendants contend that Ms. Alcaraz should remain accountable for her loan which she claims she is no longer able to pay due to job loss. Iireparable Harm Ms. Alcaraz contends that foreclosure of a home “is conclusively irreparable harm.” “Losing one’s home through foreclosure is an irreparable injury.” Wrobel v. S.L. Pope & Assocs., 2007 WL 2345036, *1 (S.D.Cal.2007); see Cronkhite v. Kemp, 741 F.Supp. 822, 825 (E.D.Wash.1989) (irreparable injury established where deed of trust contained no redemption period, and foreclosure would result in plaintiff losing home and all equity). Ms. Alcaraz notes that she unlikely will be able to purchase another home in that “this litigation poses serious, unjustifiable threats to Ms. Alcar-az’ credit rating, which will make it difficult for her to buy another house.” Clearly, loss of a home is a serious injury. However, the record suggests that Ms. Alcaraz sought a loan beyond her financial means and expectation of job loss. Such resulting harm does not alone entitle her to injunctive relief. Success On Merits Ms. Alcaraz argues that she will" }, { "docid": "10483743", "title": "", "text": "the trademark claims presént serious questions for litigation, coupled with the finding that the balance of hardships tips markedly in Dr. Seuss’s favor presents an independent ground for granting an injunction. Accordingly, the injunction shall continue as modified until the conclusion of the trial on the merits. II. STANDARD GOVERNING PRELIMINARY INJUNCTIONS Courts within the Ninth Circuit may issue a preliminary injunction if the following standard is met. To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. These formulations are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases. Under either formulation, the moving party must demonstrate a significant threat of irreparable injury, irrespective of the magnitude of the injury. Big Country Foods, Inc. v. Board of Education, 868 F.2d 1085, 1088 (9th Cir.1989) (internal citations omitted). The plaintiff’s burden of showing a likelihood of success on the merits includes the burden of showing a likelihood that it would prevail against any affirmative defenses raised by the defendant. Atari Games Corp. v. Nintendo of America Inc., 975 F.2d 882, 837 (Fed.Cir.1992) (citing Gutierrez v. Municipal Court of the Southeast Judicial District, County of Los Angeles, 838 F.2d 1031, 1038-45 (9th Cir.1988) (Title VII claim)). The exigencies of preliminary relief often prevent the movant from procuring supporting evidence in a form that would meet Rule 56(e)’s requirement of evidence admissible at trial. Such evidence may yet be considered by the court, which has discretion to weight the evidence as required to reflect its reliability. See 11A Charles Alan Wright et al., Federal Practice and Procedure § 2949 at 215-18 (1995) [hereinafter Wright]. Whether it grants or denies the application for a preliminary injunction, Rule 52(a) re quires that the court “set forth the findings of fact and conclusions of law which constitute the grounds for its action.” Fed.R.Civ.P." }, { "docid": "3318018", "title": "", "text": "diminution of the members’ recreational access and use, SOS has established sufficient standing to maintain this action. Ill A As we observed in Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir.2003), “[t]he standard for granting a preliminary injunction balances the plaintiffs likelihood of success against the relative hardship to the parties.” We have described two sets of criteria for preliminary injunctive relief. Under the “traditional” criteria, a plaintiff must show “(1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases).” Johnson v. Cal. State Bd. Of Accountancy, 72 F.3d 1427, 1430 (9th Cir.1995). Alternatively, a court may grant the injunction if the plaintiff “demonstrates either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.” Id. (internal quotation marks and citations omitted). As we have said many times regarding the two alternative formulations of the preliminary injunction test: “These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. They are not separate tests but rather outer reaches of a single continuum.” Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir.1998) (internal quotation marks and citations omitted). A district court’s order with respect to preliminary injunctive relief is subject to limited review and will be reversed only if the district court “abused its discretion or based its decision on an erroneous legal standard or on a clearly erroneous finding of fact.” United States v. Peninsula Communications, Inc., 287 F.3d 832, 839 (9th Cir.2002). Our review may be de novo under circumstances in which the district court’s ruling rests solely on a premise of law and the facts are either established or undisputed. A & M Records, Inc. v. Napster, Inc., 284" }, { "docid": "6722725", "title": "", "text": "make such designation. The immigration judge shall then specify and state for the record the country, or countries in the alternative, to which the alien’s removal will be directed pursuant to section 241(b) of the Act if the country of his or her designation mil not accept him or her into its territory ... 8 C.F.R. § 1240.10 (emphasis added). Although parties have litigated before the BIA the question of whether the government appropriately disregarded a designation and lawfully chose another country, Matter of Niesel, 10 I & N Dec. 57, 59, 1962 WL 12904 (1962), Petitioners are not required to anticipate that the government would violate statutory provisions and attempt to remove them to a non-accepting country. Even if there were a statutory exhaustion requirement, Petitioners’ claims fall into the two exceptions to the exhaustion requirement noted above. First, requiring exhaustion would be particularly inappropriate since Petitioners allege violations of the statutory rights of a class. El Rescate Legal Servs., 959 F.2d at 746-47. Second, consideration of Petitioners’ claims by the agency would be futile since INS’ position is already set. Id. at 746. Petitioners were not required to raise the non-accepting government issue in their administrative proceedings. II. Preliminary Injunction Although the parties now agree that the injunction issued by the Court should be made permanent, the original posture of the motion as briefed and argued was that of a preliminary injunction. Therefore, the Court begins its analysis under standards for a preliminary injunction. For a preliminary injunction to issue, Petitioners must meet their burden by demonstrating either: (1) a combination of probable success on the merits and the possibility of irreparable injury; or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. Textile Unlimited, Inc. v. A..BMH Co., Inc., 240 F.3d 781, 786 (9th Cir.2001); Mayo v. United States Gov. Printing Off., 839 F.Supp. 697, 699 (N.D.Cal.1992), aff'd, 9 F.3d 1450 (9th Cir.1993). These two formulations are not separate tests but represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability" }, { "docid": "11121368", "title": "", "text": "arbitration agreement in a forum dictated by the disputed arbitration clause would run counter to that fundamental principle. Ill The district court did not abuse its discretion in granting the preliminary injunction. Gorbach v. Reno, 219 F.3d 1087, 1091 (9th Cir.2000) (en banc). We will reverse an order granting a preliminary injunction only if the district court abused its discretion, made an error of law, or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1233 (9th Cir.1997). We review issues of law underlying the preliminary injunction de novo. Id. at 1234. The traditional equitable criteria for granting preliminary injunctive relief are: (1) a strong likelihood of success on the merits; (2) the possibility of irreparable injury to the plaintiffs if injunctive relief is not granted; (3) a balance of hardships favoring the plaintiffs; and (4) advancement of the public interest. Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1200 (9th Cir.1980). A preliminary injunction is not a preliminary adjudication on the merits, but a device for preserving the status quo and preventing the irreparable loss of rights before judgment. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.1984). “In this circuit, the moving party may meet its burden by demonstrating either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor.” Los Angeles Mem’l Coliseum Comm’n, 634 F.2d at 1201. The district court found that Textile would suffer irreparable harm if the arbitration were not stayed, that the balance of hardships tipped in Textile’s favor and that it was in the public interest to stay arbitration. These findings were not clearly erroneous, and A..BMH does not contest them on appeal. Thus, to obtain a preliminary injunction, Textile needed only to show that serious questions were raised. The district court determined that not only were serious questions raised, but that" } ]

[ { "docid": "22539399", "title": "", "text": "of Torts §28:5, p. 24 (1991). Furthermore, “to permit a convicted criminal defendant to proceed with a malicious prosecution claim would permit a collateral attack on the conviction through the vehicle of a civil suit.” Ibid. This, Court has long expressed similar concerns for finality and consistency and has generally declined to expand opportunities for collateral attack, see Parke v. Raley, 506 U. S. 20, 29-30 (1992); Teague v. Lane, 489 U. S. 288, 308 (1989); Rooker v. Fidelity Trust Co., 263 U. S. 413 (1923); Voorhees v. Jackson, 10 Pet. 449, 472-473 (1836). We think the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution. We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U. S. C. §2254. A claim for damages bearing that relationship, to a conviction or sentence that has not been so invalidated is not cognizable under §1983. Thus, when a state prisoner seeks damages in a §1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit." } ]

[ { "docid": "11741560", "title": "", "text": "to the United States Mail “A state prisoner cannot seek damages pursuant to 42 U.S.C. § 1983 for an unconstitutional conviction or imprisonment without first demonstrating the invalidity of the conviction.” Gibson v. City of New York, No. 96 CV 4958, 1998 WL 960303 (E.D.N.Y. Dec. 9, 1998). As the Supreme Court has stated: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Thus, a district court considering a state prisoner’s Section 1983 claim must decide whether a judgment in favor of the plaintiff in a civil suit would imply the invalidity of the plaintiffs underlying criminal conviction; if it would, the complaint must be dismissed unless the conviction has already been invalidated by a state court. Id. Here, Tucker was convicted, upon his guilty pleas, of three misdemeanor charges in full satisfaction of the indictment: Criminal Mischief in the Fourth Degree, and two counts of Criminal Contempt in the Second Degree. One of those charges, the criminal mischief count, related to conduct occurring on the date of his arrest, December 25, 1995. His conviction was affirmed on appeal to the New York State Appellate Division, Second Department. Accordingly, his claim for damages relating to convictions and sentences that have been upheld on appeal is not cognizable under Section 1983. Heck v. Humphrey, 512 U.S. at 487, 114 S.Ct. 2364. For this reason, the defendants’ motion for summary judgment dismissing the complaint as to the Section 1983 malicious prosecution claim is granted, and" }, { "docid": "12868048", "title": "", "text": "the criminal proceed ing did not end in Bush’s favor and there is no claim for malicious prosecution. Bush does not have a claim for unconstitutional conviction or imprisonment. In Heck v. Humphrey, the Supreme Court wrote: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. In other words, if a judgment in plaintiffs favor implies the invalidity of his or her conviction or imprisonment, plaintiff must show that the conviction or sentence was reversed or in some way declared invalid by an authorized tribunal. If a judgment in favor of the plaintiff in a section 1983 action would not “necessarily” imply the invalidity of his conviction or sentence, the Court in Heck held: [T]he § 1983 plaintiff must prove not only that the [allegedly unconstitutional action] was unlawful, but that it caused him actual compensable injury ... which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned). Heck, 512 U.S. at 487 n. 7, 114 S.Ct. 2364. In the present case, regardless of whether a judgment in favor of Bush would necessarily imply the invalidity of his conviction or sentence, his complaint must be dismissed at this time. If judgment in Bush’s favor in the present case would necessarily imply the invalidity of his conviction or sentence, then the complaint must be dismissed, because Bush’s allegedly unconstitutional conviction has not been reversed, expunged, declared invalid, or called into question by a writ of habeas corpus. Heck, 512 U.S. at 487, 114 S.Ct. 2364. If judgment in Bush’s favor in the present case would not necessarily imply the invalidity of his conviction or" }, { "docid": "13524096", "title": "", "text": "1383, 128 L.Ed.2d 58 (1994), this Court held that a passenger has standing to challenge the constitutionality of a vehicle stop because a stop results in a seizure of the passenger. Nevertheless, we find the district court’s error is harmless because Jackson’s testimony at the Spears hearing reveals that his claim is not ripe under Heck v. Humphrey. A complaint, as amended by a Spears hearing, may be dismissed pursuant to a Rule 12(b)(6) motion by the defendant or by 28 U.S.C. § 1915(d) if it lacks an arguable basis in law. The dispositive issue is whether Jackson’s § 1983 complaint is ripe. In Heck, the Supreme Court directed that: [i]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. — U.S. at —, 114 S.Ct. at 2372 (footnote omitted). Heck requires the district court to consider “whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate, that the conviction or sentence has already been invalidated.” Id. In addition to convictions and sentences, Heck applies to proceedings which eall into question the fact or duration of parole. See Cotton v. Texas Dep’t Criminal Justice, No. 94-10532, 35 F.3d 560 (5th Cir. Aug. 26, 1994) (parole proceeding) (unpublished). Cotton indicates that Heck should also apply to proceedings that call into question the fact or duration of probation. A judgment in favor of Jackson on his illegal seizure claim would necessarily imply the invalidity of the revocation of his" }, { "docid": "8067608", "title": "", "text": "1983 complaint sought restoration of forty-five days of good time credit. The district court properly dismissed this claim as barred by Preiser. See Blair-Bey v. Nix, 919 F.2d 1338, 1339 (8th Cir.1990), cert. denied, 502 U.S. 899, 112 S.Ct. 275, 116 L.Ed.2d 227 (1991). Portley-El also sued for other relief-expunging of his disciplinary conviction, restoration of privileges such as his prison job, suspension of his administrative segregation classification in Colorado, and money damages. Preiser did not address whether these claims are also barred, and lower federal courts struggled with the issue for many years, as illustrated by our divided opinion in Offet v. Solem, 823 F.2d 1256 (8th Cir.1987). The Supreme Court clarified matters in Heck v. Humphrey, extending Preiser to bar § 1983 actions for money damages - that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement .... We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a write of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. 512 U.S. at 486-87, 114 S.Ct. 2364 (footnote omitted). Under Heck’s “favorable termination” rule, a § 1983 action seeking damages for prison discipline that resulted in a loss of good time credits does not arise until the inmate has successfully challenged that discipline through habeas or some other proceeding. Appealing only the dismissal of his due process claim for damages, Portley-El argues that claim is not Heck-barred because it is a claim for which habeas relief is not available. By abandoning his claim for the restoration of good time credits, Portley-El attempts to bring himself within cases holding that Heck does" }, { "docid": "8171116", "title": "", "text": "the “Heck preclusion doctrine” or the “Heck bar” is based on the following paragraph in the Supreme Court’s opinion: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit. 512 U.S. at 486-87, 114 S.Ct. 2364 (footnotes omitted). In Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir.2005) (en banc), we recognized that ‘“if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed.’ Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.1996).” Consequently, “the relevant question is whether success in a subsequent § 1983 suit would ‘necessarily imply’ or ‘demonstrate’ the invalidity of the earlier conviction or sentence....” Id. quoting Heck, 512 U.S. at 487, 114 S.Ct. 2364. In addressing this question in City of Hemet, we recognized that an allegation of excessive force by a police officer would not be" }, { "docid": "20364126", "title": "", "text": "at -, 114 S.Ct. at 2372, the Court concluded: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Id. at -, 114 S.Ct. at 2372 (footnote and citations omitted). If “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence ... the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. The FTCA, like § 1983, creates liability for certain torts committed by government officials. As such, we conclude the same common law principles that informed the Supreme Court’s decision in Heck should inform the decision of whether an action under the FTCA is cognizable when it calls into question the validity of a prior conviction. We conclude the FTCA, like § 1983, is “not [an] appropriate vehiele[ ] for challenging the validity of outstanding criminal judgments.” Id. at -, 114 S.Ct. at 2372; cf. Stephenson v. Reno, 28 F.3d 26 (5th Cir.1994) (per curiam) (applying Heck to a Bivens action pursuant to 28 U.S.C. § 1331 where plaintiff had not yet challenged the validity of his confinement. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)). Because Mr. Parris’s convictions have been affirmed on direct appeal, his motion under 28 U.S.C. § 2255 was denied, and he has not demonstrated that his convictions have been declared invalid or otherwise called into question, we conclude the district court properly granted summary judgment for defendants. The judgment" }, { "docid": "12275707", "title": "", "text": "defend its case. Id. at 322-24, 106 S.Ct. 2548. ' In analyzing whether a question of fact exists, the court construes the evidence in the light most favorable to the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The mere existence of some factual dispute does not defeat a summary judgment motion, however; there must be a genuine issue of material fact for the case to survive. Id. at 247-48, 106 S.Ct. 2505. 1. Heck v. Humphrey One issue defendants have raised as to plaintiffs Fourth Amendment claim should be addressed at the outset since, if decided in defendants’ favor, it would seem to dispose of the entire action without further discussion. Defendants claim that plaintiffs Fourth Amendment claim is barred under the rule of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the Supreme Court held: ... in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. 512 U.S. at 486-87, 114 S.Ct. 2364. In this case, plaintiffs conviction has not been overturned or set aside. Although his conviction on the original charges was reversed, he later entered into a plea agreement with the State that resulted in misdemeanor convictions for the same conduct. Thus, under Heck, it would seem that plaintiffs action should be barred as to those claims that would have rendered his underlying conviction invalid. In response, plaintiff points out that Heck is not bar to § 1983 claims that “would not necessarily imply that" }, { "docid": "12577822", "title": "", "text": "PER CURIAM. Appellant Peter Perez, an inmate at the Westville Correctional Center, brought this action under 42 U.S.C. § 1983 against several police officers. Appellant maintained that the appellee police officers violated his civil rights in procuring his conviction for child molestation. The district court granted summary judgment to the appellees on the basis of res judicata. We remand with instructions. DISCUSSION Appellant was convicted of child molestation in Indiana state court on February 2, 1989, and sentenced to 15 years in prison. Appellant maintains that the appellee police officers violated his civil rights in conspiring to procure his conviction through a variety of improper actions, including an illegal search, an illegal arrest, committing perjury, falsifying evidence, and withholding exculpatory evidence. Appellant seeks substantial compensatory damages. The majority of appellant’s claims are not cognizable under § 1983. The Supreme Court has recently held that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.” Heck v. Humphrey, — U.S. -, -, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994) (internal footnote omitted). Most of appellant’s claims, if proven, would necessarily invalidate his conviction. As appellant has not yet successfully challenged his conviction, these claims are barred by Heck. However, because appellant could renew these claims if he ever succeeds in overturning his conviction, dismissal without prejudice is appropriate. The claims relating to an illegal search and an improper arrest may not be barred, as neither claim would necessarily undermine the validity of the conviction. See Heck, — U.S. at - n. 7, 114 S.Ct. at 2372 n. 7;" }, { "docid": "2076919", "title": "", "text": "should identify the allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth;” and (3) “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir.2011) (citations omitted). 2. Count I — Fourth Amendment Claims In his amended complaint, Plaintiff lists several grounds for his Fourth Amend ment claim, including unlawful search, false arrest, false imprisonment and excessive force. (Am. Compl. ¶¶ 76-83.) Defendants argue that all Fourth Amendment claims should be dismissed, other than the claims for excessive force against the Defendant Officers. Essentially, Defendants assert that the claims for unreasonable search and seizure are not cognizable under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), in light of Plaintiffs guilty plea; and in any event, they argue his guilty plea establishes the existence of probable cause for his arrest, any search associated with his arrest, and his imprisonment. Further, Defendants posit that the claims against the Defendant Boroughs fail to state a claim under the requirements of Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). We address each of these arguments in turn. a. Fourth Amendment Claims Against Defendant Officers In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court considered whether a person convicted of a crime may recover damages related to his conviction under 42 U.S.C. § 1983. The Court held that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas eorpus[.]” Id. at 486-87, 114 S.Ct." }, { "docid": "23303838", "title": "", "text": "unlawful acts which denied Plaintiff his right to access the courts, Plaintiff cannot seek remedy by way of causes of action mentioned in the previous paragraph since they are either time barred or moot. 85. As a proximate result of the aforementioned acts, Plaintiff has been damaged and has suffered severe emotional injuries, including mental distress and anguish. (Appellant App. at A-100 to A-103) (emphasis added.) . At the outset, we note that Gibson was not pursuing a malicious prosecution claim. (Appellant App. at A-22). It appears that Gibson may have simply quoted the phrase \"unconstitutional conviction or imprisonment” from the Supreme Court's holding in Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which held that \"to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” (footnote omitted) (emphasis added). As noted infra, Heck holds that the statute of limitations on certain claims does not run until the underlying conviction is set aside. However, Gibson cannot avoid the statute of limitations applicable to § 1983 claims not covered by Heck by merely cloaking such claims in the \"right to be free from an unconstitutional conviction and imprisonment.” With the possible exception of malicious prosecution claims, such cloaking would, in effect, nullify the statute of limitations for all of Gibson's § 1983 claims, and we believe this is why the District Court read the Complaint as it did. . The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched," }, { "docid": "2782761", "title": "", "text": "1983 creates a species of tort liability,” “the appropriate starting point for the inquiry under § 1983” is the common law rules of tort. Id. at 483,114 S.Ct. at 2370-71. Recognizing that “[t]he common-law cause of action for malicious prosecution provides the closest analogy to” Heck’s § 1983 claim, and that “[o]ne element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused,” the Court imposed a favorable-termination requirement on “§ 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement.” Id. at 484, 486, 114 S.Ct. at 2371, 2372. In doing so, it invoked “the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments.” Id. at 486, 114 S.Ct. at 2372. We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Id. at 486-87, 114 S.Ct. at 2372 (footnote omitted). Though cognizant that the case lay “at the intersection of the two most fertile sources of federal-court prisoner litigation' — the Civil Rights Act of 1871 ..., as amended, 42 U.S.C. § 1983, and the federal habeas corpus" }, { "docid": "15075233", "title": "", "text": "would necessarily imply the invalidity of his conviction or sentence,” unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated. This ease presents the question whether a claim for damages and declaratory relief brought by a state prisoner challenging the validity of the procedures used to deprive him of good-time credits is cognizable under § 1983. Edwards v. Balisok, 117 S.Ct. at 1586. Heck, which Edwards relied upon, was a § 1983 claim for due process violations during a state criminal prosecution, a suit that the Supreme Court analogized to a malicious prosecution action. In Heck, the Supreme Court held: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must he dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit. Heck v. Humphrey, 512 U.S. at 486-87, 114 S.Ct. at 2372-73 (fns. omitted & emphasis added). Edwards applied Heck to a prisoner’s challenge to the prison disciplinary proceeding that resulted in a deprivation of good time credits: “We conclude, therefore, that" }, { "docid": "15548761", "title": "", "text": "1983 claim challenged the validity of his state court conviction for resisting arrest, such claim would not accrue until and unless that conviction was invalidated. Our jurisdiction arises under 28 U.S.C. § 1291. We review a grant of summary judgment de novo. Kane v. Capital Guardian Trust Co., 145 F.3d 1218, 1221 (10th Cir.1998). Because our review of the record reveals that a judgment in favor of Martinez in his federal civil rights action would not necessarily imply the invalidity of his state court conviction for resisting arrest, we reverse the district court’s judgment. I. We begin our discussion with the Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the Supreme Court addressed the question of whether a state prisoner could challenge the constitutionality of his state court conviction in a § 1983 suit for damages. The Court held that- in order to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. 512 U.S. at 486-88, 114 S.Ct. 2364 (emphasis in original) (internal citation and footnote omitted). The Court then provided an example of “other harm caused by actions whose unlawfulness would render a conviction or sentence invalid:” A state defendant is convicted of and sentenced for the crime of resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest.... He then brings a § 1983 action against the arresting officer, seeking damages for violation of his Fourth Amendment right to be free from unreasonable seizures. In order to prevail in this § 1983 action, he would have" }, { "docid": "14162926", "title": "", "text": "appears to concede that the one-year statute of limita tions bars him from basing a claim on any of the conduct that Defendants assert occurred prior to his arrest on October 27, 1993. Because Mr. Zupan has not raised any argument or presented facts to the contrary, the Court grants Defendants summary judgment as to their liability for any conduct that occurred before October 27,1993. III. The Arrest and Search Claims A. Heck v. Humphrey Defendants argue that Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), bars Mr. Zupan from bringing claims based on his parole violation arrest and search. In Heck, the Supreme Court held that, in order to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other injuries caused by actions whose unlawfulness would render the conviction or imprisonment invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Id. at pp. 486-187, 114 S.Ct. 2364 (emphasis in original) (footnote omitted). . The Heck Court held further that when a State prisoner seeks damages in a § 1983 suit, “the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at p. 487, 114 S.Ct. 2364. If the district court determines, however, that the plaintiffs action would not necessarily demonstrate the invalidity of the criminal judgment against the plaintiff, it should allow the § 1983 action to proceed. Id. The Fifth Circuit in McGrew v. Texas Board of Pardons and Paroles, 47 F.3d 158 (5th Cir.1995), held that an" }, { "docid": "8171115", "title": "", "text": "are entitled to file an amended complaint, if an amendment is deemed necessary or advisable. Ill Plaintiffs raise two issues on appeal. First, they argue that Heck should be strictly interpreted and may not be applied to § 1983 actions where the plaintiffs have not been convicted or charged with any crimes. Second, they argue even if Heck were applicable, it would not bar their civil action. They argue that they should be allowed to show that Deputy Winter had managed to move to one side of the truck when he shot GPR through a side window, and accordingly Deputy Winter was no longer in danger when he shot, and the shooting occurred subsequent to GPR’s criminal activity. We address their arguments in reverse order because our conclusion that Heck would otherwise bar this action focuses our consideration of whether the preclusion extends to these plaintiffs who were not criminally prosecuted or convicted. A. The underlying facts are within the coverage of Heck. 1. The Heck preclusion doctrine What has come to be known as the “Heck preclusion doctrine” or the “Heck bar” is based on the following paragraph in the Supreme Court’s opinion: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction" }, { "docid": "23303806", "title": "", "text": "occurred more than two years before this suit was brought, and therefore all would be barred by the two-year statute of limitations. The dispute between the parties is whether or not these claims are saved from being untimely because they fall under the Heck delayed accrual rule, and did not accrue until Gibson’s conviction was set aside in 2002. In Heck v. Humphrey, Heck brought a § 1983 suit while his criminal appeal was pending. Id. at 479,114 S.Ct. 2364. Heck alleged numerous constitutional violations in the conduct of his trial, and requested compensatory and punitive money damages, but no injunctive relief. Id. The Supreme Court concluded that such a claim was not cognizable under § 1983 until Heck’s conviction or sentence had been invalidated, not because there was an exhaustion requirement, but simply because no claim existed until that time. Id. at 489, 114 S.Ct. 2364. As the Court explained, “to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Id. at 486-87, 114 S.Ct. 2364 (footnote omitted). Nevertheless, the Supreme Court in Heck was careful to explain that not all constitutional claims arising from an arrest and prosecution are the kind that are subject to the deferred accrual rule. Some claims would not necessarily invalidate a conviction. The Court laid particular emphasis on Fourth Amendment claims in footnote seven, explaining: For example, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiffs still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, see Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)," }, { "docid": "20364125", "title": "", "text": "El Reno, not because I am guilty.” Thus, as the district court concluded, Mr. Parris “squarely calls into question the validity of his convictions.” In Heck v. Humphrey, — U.S. -, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court addressed whether a state prisoner may challenge the constitutionality of his conviction in a suit for damages under 42 U.S.C. § 1983. The inmate in Heck alleged, inter alia, as does Mr. Parris here, that evidence existed “which was exculpatory in nature and could have proved [his] innocence” but that the evidence was improperly withheld. Id. at -, 114 S.Ct. at 2368. The Court noted the case “call[ed] into question the lawfulness of [the plaintiffs] conviction or confinement.” Id. at -, 114 S.Ct. at 2370. Because § 1983 created a form of tort liability, the Court looked to the common law of torts for guidance. Id. at -, 114 S.Ct. at 2370-71. Relying on “the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments,” id. at -, 114 S.Ct. at 2372, the Court concluded: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Id. at -, 114 S.Ct. at 2372 (footnote and citations omitted). If “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence ... the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. The FTCA, like § 1983, creates liability for certain torts committed by government officials." }, { "docid": "450396", "title": "", "text": "594 (1989). The statute of limitations for personal injury actions in Pennsylvania, where Mr. Wright’s claims arose, is two years. 42 Pa. Cons. Stat. § 5524(2); Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). Here, there is no dispute as to the applicable statute of limitations. Rather, the parties dispute when the claims Mr. Wright asserts in Counts 2-4 of his Complaint began to accrue and when, then, the two years began to run. Federal law governs the accrual date of a § 1983 claim. Wallace, 549 U.S. at 388, 127 S.Ct. 1091. Under federal law, “the standard rule” is that accrual occurs “when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief.” Id. (internal citation and quotation marks omitted) (quoting Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997)); see also id. at 391, 127 S.Ct. 1091 (“Under the traditional rule of accrual ... the tort cause of action accrues, and the statute of limitations commences to run, when the wrongful act or omission results in damages.”) (citation omitted). A § 1983 claim, however, is not cognizable if success on the claim would necessarily imply the invalidity of an underlying conviction or sentence. Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. In Heck, the Supreme Court held that: in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Id. (footnote omitted). Accordingly, pursuant to Heck, a § 1983 cause of action that would impugn the validity of an underlying conviction or sentence does not accrue until the underlying criminal proceedings terminate" }, { "docid": "11764239", "title": "", "text": "Higgins, 754 F.2d 186 (6th Cir.1985). Moreover, the opinion in Bonds, which explicitly overruled Kunze, was not issued until April 6, 1994, several months after plaintiff alleged the Fourth Amendment violation transpired: Thus, at the time of the alleged incident, the Sixth Circuit case law indicated police retention of personalty where the initial seizure was reasonable did not give rise to a Fourth Amendment claim. Consequently, defendants are entitled to qualified immunity and this claim will be dismissed. b. Counts IV & V: Arrests and Incarceration for “Discretionary Time” Plaintiffs remaining claims are based on his assertion that his arrests and incarcerations for “discretionary time” violated his due process and Sixth Amendment rights. Where plaintiffs claims for damages stem from an assertion that his arrest or conviction was unconstitutional, the Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), is controlling: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by, actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Id. at 486-87, 114 S.Ct. at 2372-73; Schilling v. White, 58 F.3d 1081, 1085-86 (6th Cir.1995) (stating Heck concluded proof that a conviction has been reversed is a necessary element of the § 1983 cause of action); Shea v. Ohio, No. 96-3458, 1997 WL 144228, *1 (6th Cir. Mar. 27, 1997) (holding Heck applicable in non-prisoner case). Since plaintiffs claims are based on his assertion that several of his arrests and convictions are unconstitutional because he was not provided with notice of the charges against him, counsel, an opportunity to be heard, to post bond, or to appeal, his" }, { "docid": "16830727", "title": "", "text": "as being involved in any denial of medical treatment. His only specific reference to any individual concerning a denial of medical treatment is to [someone], who has never been served with the Complaint in this action. Because Plaintiff fails to allege or offer specific facts linking either Defendant [police officers] to his requests and alleged denial of medical treatment, Defendants are entitled to summary judgment on this issue.”). III. ALL DEFENDANTS SHOULD BE GRANTED SUMMARY JUDGMENT ON MCALLISTER’S FALSE ARREST AND MALICIOUS PROSECUTION CLAIMS UNDER HECK V. HUMPHREY The Supreme Court held in Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994), that in order for a § 1983 plaintiff who has been convicted to recover damages for an unconstitutional conviction or imprisonment, including false arrest, malicious prosecution, or-other harm which would invalidate the conviction or sentence, the plaintiff must prove the conviction or sentence has been reversed or otherwise declared invalid: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Id. at 486-87, 114 S.Ct. at 2372 (fn.omit-ted). The Supreme Court explained that permitting a § 1983 attack on a conviction that still stands would “expand opportunities for collateral attack”" } ]

[ { "docid": "22968289", "title": "", "text": "first, that the counts were misjoined because they alleged three separate crimes: second, that there was not enough evidence to ■ support the verdict: third, that the prosecutor misconducted himself in his address to the jury, and that the judge was partial and unfair to the accused during the trial. There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused’s guilt, the sum of it will convince them as to all. This possibility violates the doctrine that only direct evidence of the transaction charged will ordinarily be accepted, and that the accused is not to be convicted because of his criminal disposition. Yet in the ordinary affairs of life such a disposition is a convincing factor, and its exclusion is rather because the issue- is practically unmanageable than because it is not rationally relevant. When the accused’s conduct on several separate occasions can properly be examined in detail, the objection disappears, and the only consideration is whether the trial as a whole may not become too confused for the jury. Hence it was the rule at common-law- — certainly as to misdemeanors— that separate crimes could be joined in the court’s discretion (Bishop’s New Crim. Proc. § 452); and section 557 of Title 18, U.S.Code, 18 U.S.C.A. § 557, has made that doctrine applicable to felonies as well. (Indeed, that was probably also true at common-law so long as felonies and misdemeanors were not mixed in one indictment). Under that section “two or more acts or. transactions of the same class of crimes” may be joined, if that can “properly” be done; that is, if the defendant can be fairly tried on all the charges at once. That rests in the discretion of the trial judge. Pointer v. United States, 151-U.S. 396, 400-404, 14 S.Ct. 410, 38 L.Ed. 208; Dolan v. United States, 8 Cir., 133 F. 440; Corbin v. United States, 5 Cir., 264 F." } ]

[ { "docid": "15905159", "title": "", "text": "be considered to be of the same or similar character as those charged in counts one and two. I agree with Judge Goodstein that count three must be severed and will not disturb his order. III. CONCLUSION THEREFORE, IT IS ORDERED that the government’s objections are overruled, the motion to sever is granted, and count three is severed from counts one and two. . The motion and order were based on the original indictment. The government has since filed a superseding indictment correcting deficiencies in counts one and two. However, the issue of whether count three is properly joined remains, and both parties wish me to address it. . Judge Learned Hand once wrote: \"There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all.\" United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.1939). . In Randazzo, the court noted that while the \"same act or transaction” and \"common scheme or plan” prongs of the rule obviously serve the underlying purposes of joinder, the \"same or similar character” prong “is less clear.” 80 F.3d at 627. \"About the best one can say is that in such cases the evidence of one crime is more likely to be independently admissible, on theories reflected in Fed. R.Evid. 404(b), in proving the other, 'similar' crime.” Id. at 628 n. 1 .See Richardson, 161 F.3d at 734 (\"Where there is no substantial overlap in evidence and particularly where the evidence necessary to prove each of the offenses would be inadmissible in a trial of the other, judicial econo my does not favor joinder.\"); see also Drew, 331 F.2d at 88. . Halper, 590 F.2d at 431 (“The rule set down by [the D.C. Circuit], which we here endorse, requires a severance of offenses that are purportedly of the ‘same or similar character' unless evidence of the joined offenses would" }, { "docid": "11425639", "title": "", "text": "of his home on June 2. However, the government has not argued nor is it obvious that this connection between the incidents would have been relevant at trial. . Note, however, that these concerns in fact may be greatly diminished at joint trials. Judge Learned Hand explained: There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all. This possibility violates the doctrine that only direct evidence of the transaction charged will ordinarily be accepted, and that the accused is not to be convicted because of his criminal disposition. Yet in the ordinary affairs of life such a disposition is a convincing factor, and its exclusion is rather because the issue is practically un manageable than because it is not rationally relevant. When the accused’s conduct on several separate occasions can properly be examined in detail, the objection disappears, and the only consideration is whether the trial as a whole may not become too confused for the jury. United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939). But see Drew, 331 F.2d at 89-90 & n. 8 (citing Underhill and Wigmore for a more expansive view of prejudice from \"other crimes” evidence). . Contrast this language with the language delineating the other types of offense joinder recognized in Rule 8(a) and the case-specific reference used: \"Two or more offenses may be charged in the same indictment ... if the offenses charged ... are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan” (emphasis added). . The offenses need not be of identical statutory origin in order to be similar, but their correspondence in type is obviously central to their proper joinder on this ground. See United" }, { "docid": "7941893", "title": "", "text": "spent examining character witnesses. On the whole, however, the “trials” on the joined charges are distinct. See 8 Moore’s Federal Practice H 8.05[2], at 8-19. At the same time, the risk to the defendant in such circumstances is considerable. The disadvantage to which a defendant is put and the potential danger to which a defendant is exposed by joinder of offenses of “same or similar character” are easily understood. As explained by the Court of Appeals for the District of Columbia Circuit: (1) [the defendant] may become embarrassed or confounded in presenting separate defenses; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find. A less tangible, but perhaps equally persuasive, element of prejudice may reside in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one. Drew v. United States, 118 U.S.App.D.C. 11, 14, 331 F.2d 85, 88 (1964). See also Robinson v. United States, 148 U.S.App.D.C. 58, 66-67, 459 F.2d 847, 855-56 (1972). This Court has made quite similar observations. In United States v. Lotsch, supra, 102 F.2d at 36, Judge Learned Hand explained: There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused’s guilt, the sum of it will convince them as to all. This possibility violates the doctrine that only direct evidence of the transaction charged will ordinarily be accepted, and that the accused is not to be convicted because of his criminal disposition. And in United States v. Smith, supra, 112 F.2d at 85, Judge Clark noted that “even when cautioned, juries are apt to regard with a more jaundiced eye a" }, { "docid": "11425638", "title": "", "text": "contemplating the Savage Arms shotgun when framing his response. . Rule 8(a) also permits joinder when offenses are “based on the same act or transaction or on two or more acts or transactions connected together or constituting part of a common scheme or plan.\" It is undisputed that this case does not involve either of these brands of joinder. . The magistrate below acknowledged that this longer interval, approaching two years, \"may perhaps be reaching the outer edge of a 'relatively short period of time,' ” but upheld joinder of all counts because of our general instruction to construe Rule 8 broadly to allow joinder. See United States v. Archer, 843 F.2d 1019, 1021 (7th Cir.), cert. denied, 488 U.S. 837, 109 S.Ct. 100, 102 L.Ed.2d 76 (1988). . There is at least a slight link between the May 23 and June 2 incidents — Dybul originally summoned Coleman for the office visit on June 2 because of a report of his May 23 gun possession which, in part, constituted grounds for the parole search of his home on June 2. However, the government has not argued nor is it obvious that this connection between the incidents would have been relevant at trial. . Note, however, that these concerns in fact may be greatly diminished at joint trials. Judge Learned Hand explained: There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all. This possibility violates the doctrine that only direct evidence of the transaction charged will ordinarily be accepted, and that the accused is not to be convicted because of his criminal disposition. Yet in the ordinary affairs of life such a disposition is a convincing factor, and its exclusion is rather because the issue is practically un manageable than because it is not rationally relevant. When the accused’s conduct on several separate occasions can" }, { "docid": "15905158", "title": "", "text": "government is left with, then, is that each count alleges the use of force. But for the categorical approach to have any meaning, it must permit more than two categories of offenses—violent and non-violent. The government also notes that all three offenses occurred within the period of about one month. But mere closeness in time is an insufficient basis for joinder. See Coleman, 22 F.3d at 134 n. 10 (noting that proximity in time is rarely probative of sameness). Even offenses committed on the same day must be categorically similar to justify joinder. Id. at 133. Here, there is no such similarity. Finally, there is no indication that under Fed.R.Evid. 404(b) evidence pertaining to count three would be admissible at a trial on counts one and two. The charges of assault with intent to kill and resisting an officer do not appear to involve common motives or a common modus operandi. Nor does it appear that the offenses are linked by some other Rule 404(b) factor. In sum, the offense charged in count three cannot be considered to be of the same or similar character as those charged in counts one and two. I agree with Judge Goodstein that count three must be severed and will not disturb his order. III. CONCLUSION THEREFORE, IT IS ORDERED that the government’s objections are overruled, the motion to sever is granted, and count three is severed from counts one and two. . The motion and order were based on the original indictment. The government has since filed a superseding indictment correcting deficiencies in counts one and two. However, the issue of whether count three is properly joined remains, and both parties wish me to address it. . Judge Learned Hand once wrote: \"There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all.\" United States v. Lotsch, 102 F.2d" }, { "docid": "7941894", "title": "", "text": "by the charging of several crimes as distinct from only one. Drew v. United States, 118 U.S.App.D.C. 11, 14, 331 F.2d 85, 88 (1964). See also Robinson v. United States, 148 U.S.App.D.C. 58, 66-67, 459 F.2d 847, 855-56 (1972). This Court has made quite similar observations. In United States v. Lotsch, supra, 102 F.2d at 36, Judge Learned Hand explained: There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused’s guilt, the sum of it will convince them as to all. This possibility violates the doctrine that only direct evidence of the transaction charged will ordinarily be accepted, and that the accused is not to be convicted because of his criminal disposition. And in United States v. Smith, supra, 112 F.2d at 85, Judge Clark noted that “even when cautioned, juries are apt to regard with a more jaundiced eye a person charged with two crimes than a person charged with one.” See also United States v. Nadler, 353 F.2d 570, 572 (2d Cir. 1965). Despite these realities, joinder of offenses under the Rule 8(a) rubric of “same or similar character” has been upheld where evidence of the one offense would be admissible in a separate trial on the other offense as evidence of “other crimes, wrongs, or acts.” In such circumstances, the reasoning goes, the defendant is not unfairly prejudiced by the joint trial of the offenses. Thus, the District of Columbia Circuit in Drew v. United States, supra, recognized both the inherent prejudice in a joinder of offenses of the “same or similar character” and the reality that this element of prejudice is largely absent in situations where evidence of the separate crimes would be admissible anyway. The rule set down by that court, which we here endorse, requires a severance of offenses that are purportedly of the “same or similar character” unless evidence of the joined offenses would be mutually admissible in separate" }, { "docid": "12267620", "title": "", "text": "Rivera’s crimes were minors, only their first names were given at trial. . The chart gathered data under the following headers: name, age, year, virgin (Y or N), and \"fucked” (number of times). The government also introduced a handwritten version of the same chart. . The template, saved under file name \"BlackMail.doc,” stated: Hey _ I decided to blackmail you. U WILL have sex with ME in real LIFE, again, and you WILL let me make a PORN video with you. IF you don't do as I say and let me do what I want, I'll write to your PARENTS at this address_And I will let them know that you are GAY. I will also send them info about your online \"activities” \"chats” and will also tell them where they can find more info/ NOTE: IF you banish [sic] from online without giving in to my demands I will still do what I just said above. U can’t hide, U will be the loser. . \"Given to or expressing lust; lecherous” or \"[ejxciting sexual desires; salacious.” The American Heritage Dictionary of the English Language (4th ed.2006). . In the District Court, Rivera asserted that joinder would prejudice his right to testify on certain counts but not on others. He has forfeited that argument on appeal, relying instead on the broader concern expressed in United States v. Werner, 620 F.2d 922 (2d Cir.1980), that \"the jury may use the evidence cumulatively; that is, that although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all.” Id. at 929 (quoting United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.1939)) (Learned Hand, /.)." }, { "docid": "543085", "title": "", "text": "likeness.” U.S. v. Lindsey, 782 F.2d 116, 117 (8th Cir.1986) (citing United States v. Werner, 620 F.2d 922, 926 (2d Cir.1980)). Joinder in this case is proper. Because all counts involve false representations made to financial institutions, the government has charged the defendants with crimes of similar character. See U.S. v. Levine, 983 F.2d 165, 167 (10th Cir.1992) (joinder of bank fraud and mail fraud charges proper where both charges result from attempts to defraud victims through the submission of falsified documents). The court may, however, despite proper joinder under Rule 8, sever the counts of an indictment, for Rule 14 cautions that a court may grant a severance if the joinder is prejudicial. See Fed.R.Crim.P. 14. It is up to the defendant, however, to persuade the court that joinder is prejudicial. “The defendant bears a heavy burden of showing -real prejudice from the joinder of the two counts.” United States v. Holland, 10 F.3d 696, 699 (10th Cir.1993) (citing United States v. Hayes, 861 F.2d 1225, 1231 (10th Cir.1988)). Prejudicial joinder occurs when an individual’s right to a fail- trial is threatened. Id. at 699 (quoting United States v. Sturmoski, 971 F.2d 452, 460 (10th Cir.1992)). “In deciding on a motion for severance, the district court has a duty to weigh the prejudice resulting from a single trial of counts against the expense and inconvenience of separate trials.” United States v. Hollis, 971 F.2d 1441, 1456 (10th Cir.1992). The defendants have not met then-burden to show the court that the prejudice resulting from a single trial on all the counts against them will threaten their right to a fair trial. The defendants argue that they are prejudiced by the possibility that a jury may use the evidence of one crime to convict on the other or may cumulate the evidence under both charges. A district court, however, is not required to sever the counts simply because the cumulative effect of evidence of similar misconduct might potentially prejudice the defendants. See Hollis, 971 F.2d at 1457; United States v. Cox, 934 F.2d 1114, 1120 (10th Cir.1991); United States v. Taylor," }, { "docid": "18777179", "title": "", "text": "likeness.” United States v. Werner, 620 F.2d 922, 926 (2d Cir.1980) (quoting Webster’s New International Dictionary (2d ed.)). In view of the proscription against requiring a precise identity between the character of offenses, possession of two different types of firearms is “nearly corresponding” in nature. Finally, the evidence as to the two counts with which Lindsey was charged overlap somewhat. The offenses are predicated on the same felony, Lindsey’s 1977 perjury conviction. Moreover, the record indicates that the offense charged in Count II was developed in the course of federal agents’ investigation of the transaction underlying Count I. We thus conclude that the offenses are of the “same or similar character” and that the trial court properly joined the offenses under Rule 8(a). Lindsey did testify at trial in this matter, but he asserts that if the counts had been severed, he would have testified in a trial on Count II (possession of a shotgun), but not in a trial on Count I (possession of a pistol). Severance of counts under Fed.R. Crim.P. 14 is warranted, however, only when a defendant has made a convincing showing that he has both important testimony to give concerning one count and a strong need to refrain from testifying on the other. United States v. Jardan, 552 F.2d 216, 220 (8th Cir.), cert. denied, 433 U.S. 912, 97 S.Ct. 2982, 53 L.Ed.2d 1097 (1977). A review of the record convinces us that Lindsey failed to make a showing requiring severance of counts. Moreover, we find here that even if the trial court had severed the counts, the government would be allowed to admit evidence concerning the first offense in a trial for the second offense. Therefore, Lindsey was not prejudiced either initially or at trial and the district court thus did not abuse its discretion in refusing to sever the two offenses. See United States v. Werner, 620 F.2d at 928, 930. Having examined the record and considered the briefs and arguments, we affirm Lindsey’s conviction on both counts. . The Honorable Miles W. Lord, Senior United States District Judge for the District of" }, { "docid": "12267613", "title": "", "text": "rely on impulse or revulsion, or lack any framework for reasoned dialogue in the jury room. In short, the Dost factors impose useful discipline on the jury’s deliberations. They may do so imperfectly, but they have not been much improved upon. We need not decide whether the Dost factors would govern in every case that touches on child pornography. Among other things, it matters whether production or possession is the charge. But it is no error for a district court to recommend the Dost factors as considerations, making any adaptations or allowances warranted by the facts and charges in a particular case. That said, the jury should not be made to rely on the Dost factors with precision to reach a mathematical result, or to weigh or count them, or to rely on them exclusively. II Rivera argues that the District Court erred in denying his motion to sever counts two (enticement of Brian) and three (interstate travel relating to Brian) from counts one (enticement of Garrett), four (production of child pornography depicting David) and five (possession of child pornography). Rivera contends that joinder of these five charges was improper under Federal Rule of Criminal Procedure 8(a), or in the alternative, that the District Court abused its discretion in declining to sever the charges under Rule 14(a). “Our scrutiny of the district court’s denial of a Rule 8 motion to sever requires a twofold inquiry: whether join-der of the counts was proper, and if not, whether misjoinder was prejudicial to the defendant.” United States v. Ruiz, 894 F.2d 501, 505 (2d Cir.1990). Rule 8(a) allows for the joinder of offenses that “are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Fed.R.Crim.P. 8(a). “Similar” charges include those that are “somewhat alike,” or those “having a general likeness” to each other. United States v. Werner, 620 F.2d 922, 926 (2d Cir.1980) (quoting the dictionary). Counts that have a “sufficient logical connection” to each other can be tried together, Ruiz, 894 F.2d at" }, { "docid": "22695681", "title": "", "text": "“criminal propensity” prejudice would be in no way enlarged by the fact of joinder. When, for example, the two crimes arose out of a continuing transaction or the same set of events, the evidence would be independently admissible in separate trials. Similarly, if the facts surrounding the two or more crimes on trial show that there is a reasonable probability that the same person committed both crimes due to the concurrence of unusual and distinctive facts relating to the manner in which the crimes were committed, the evidence of one would be admissible in the trial of the other to prove identity. In such cases the prejudice that might result from the jury’s hearing the evidence of the other crime in a joint trial would be no different from that possible in separate trials. Ill The federal courts, including ■our own, have, however, found no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials under the rules just discussed. 'This rests upon the assumption that, with a proper charge, the jury can easily keep such evidence separate in their deliberations and, therefore, the danger of the jury’s cumulating the evidence is substantially reduced. In the leading case of United States v. Lotsch, 102 F.2d 35 (2d Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939), Judge Learned Hand said (102 F.2d at p. 36): “There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused’s guilt, the sum of it will convince them as to all. This possibility violates the doctrine that •only direct evidence of the transaction charged will ordinarily be accepted, and that the accused is not to be convicted because of his criminal disposition. Yet in the ordinary affairs of life such a disposition is a convincing factor, and its exclusion is rather" }, { "docid": "10340046", "title": "", "text": "the sense that each involved fraud and had the objective of persuading a bank to lend its money. Even if it be assumed that the charged felonies are of the “same or similar character,” that is the weakest basis for joinder of offenses. In United States v. Halper, 590 F.2d 422, 430 (2d Cir.1978), the Second Circuit said: When all that can be said of two separate offenses is that they are of the “same or similar character,” the customary justifications for joinder (efficiency and economy) largely disappear. But the risk to the defendant of unfair prejudice, through confusion of the issues or cumulative use of evidence by the jury, is heightened. Thus Halper held that Rule 8(a) was violated to defendant’s prejudice when a Medicaid fraud indictment arising from defendant’s failure to ensure that his laboratory engaged in honest billing practices was joined for trial with an income tax evasion indictment. The government relies upon the Second Circuit’s statement in United States v. Gordon, 655 F.2d 478, 484 (2d Cir.1981), “that ‘too precise an identity between the character of the offenses’ charged in one indictment should not be required” (citing and quoting United States v. Werner, 620 F.2d 922, 926 (2d Cir.1980)). But the facts in Gordon are inapposite. The Second Circuit made the quoted statement in the context of an indictment containing eight counts of mail fraud and one count of interstate transportation of stolen property. The court of appeals rejected defendant’s contention of impermissible Rule 8(a) joinder “because the acts of mailing charged in the first eight counts form part of a ‘common and continuous scheme and plan ...’ (quoting the district court). In each of these counts Gordon was alleged to have abused his position as a financial advisor for the purpose of defrauding his clients.” Id. at 484. “Moreover,” the Second Circuit continued, “Gordon’s representations to the individuals named in the indictment were similar in nature; in each case he promised to invest money in certificates of deposit or other property.” Id. at 485. In the case at bar, Harris’ conduct in relation to the" }, { "docid": "22273412", "title": "", "text": "apt to regard with a more jaundiced eye a person charged with two crimes than a person charged with one. But Congress has authorized consolidation in the belief that public considerations of economy and speed outweigh possible unfairness to the accused.”); United States v. Barrett, supra, 505 F.2d at 1106 (“Obviously any adding of offenses to others is prejudicial to some extent.”). While the mere fact that “juries are apt to regard with a more jaundiced eye a person charged with two crimes than a person charged with one” does not call for relief under Rule 14, trial courts must be alert to the danger that, as said by Judge L. Hand before adoption of the Rules of Criminal Procedure, in United States v. Lotsch, 102 F.2d 35, 36 (2 Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939): the jury may use the evidence cumulatively; that is, that although so much as would be admissible upon any one of the charges might not have persuaded them of the accused’s guilt, the sum of it will convince them as to all. However, as he went on to explain: When the accused’s conduct on several separate occasions can properly be examined in detail, the objection disappears, and the only consideration is whether the trial as a whole may not become too confused for the jury. Id. The latter quotation fits this case exactly. The jury could readily examine Werner’s conduct on the two different occasions separately and Judge Costantino clearly and repeatedly ordered it to do so, see Appendix 42, 62, 63, 75, in language fully measuring up to that approved by the cases. See, e. g., United States v. Jamar, 561 F.2d 1103, 1107 (4 Cir. 1977); United States v. Pacente, 503 F.2d 543, 547-48 (7 Cir.) (en banc), cert. denied, 419 U.S. 1048, 95 S.Ct. 623, 42 L.Ed.2d 642 (1974); United States v. Hatcher, 423 F.2d 1086, 1089-90 (5 Cir.), cert. denied, 400 U.S. 848, 91 S.Ct. 35, 27 L.Ed.2d 86 (1970). This case differs totally from Drew v. United States, 118 U.S.App. D.C. 11," }, { "docid": "22695682", "title": "", "text": "discussed. 'This rests upon the assumption that, with a proper charge, the jury can easily keep such evidence separate in their deliberations and, therefore, the danger of the jury’s cumulating the evidence is substantially reduced. In the leading case of United States v. Lotsch, 102 F.2d 35 (2d Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939), Judge Learned Hand said (102 F.2d at p. 36): “There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused’s guilt, the sum of it will convince them as to all. This possibility violates the doctrine that •only direct evidence of the transaction charged will ordinarily be accepted, and that the accused is not to be convicted because of his criminal disposition. Yet in the ordinary affairs of life such a disposition is a convincing factor, and its exclusion is rather because the issue is practically unmanageable than because it is not rationally relevant. When the accused’s conduct on several separate occasions can properlyx^ be examined in detail, the objection disappears, and the only consideration is whether the trial as a whole may not become too confused for the jury. * * * Here we can see no prejudice from joining the three charges: the evidence as to each was short and simple; there was no reasonable ground for thinking that the jury could not keep separate what was relevant to each. The joinder was therefore proper * * *-» Judge Hand recognizes the possibility, of course, that the jury may misuse the evidence, no matter how simple and separable; his position is merely that the possibility is somewhat reduced. However, the possibility of the jury’s becoming hostile or inferring guilt from belief as to criminal disposition is just as substantial. For this reason great care must be exercised to protect the defendant from this possibility when joinder is tolerated under this theory In summary, then," }, { "docid": "12267619", "title": "", "text": "Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment)). “[0]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” Ewing v. California, 538 U.S. 11, 21, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (internal quotations omitted) (rejecting Eighth Amendment challenge to 25-year sentence for theft of golf clubs worth $1,200). After Rivera served a state sentence for molesting his niece and nephew throughout their childhood, he sexually exploited four adolescent boys, one of them only thirteen years old. In light of the gravity of Rivera’s offenses and his recidivist nature, we cannot draw “an inference of gross disproportionality” from the mandatory life sentence at issue here. Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680 (Kennedy, J., concurring). Lastly, Rivera’s Sixth Amendment challenge to his sentence is defeated by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). CONCLUSION For the foregoing reasons, we affirm. . Because the victims of Rivera’s crimes were minors, only their first names were given at trial. . The chart gathered data under the following headers: name, age, year, virgin (Y or N), and \"fucked” (number of times). The government also introduced a handwritten version of the same chart. . The template, saved under file name \"BlackMail.doc,” stated: Hey _ I decided to blackmail you. U WILL have sex with ME in real LIFE, again, and you WILL let me make a PORN video with you. IF you don't do as I say and let me do what I want, I'll write to your PARENTS at this address_And I will let them know that you are GAY. I will also send them info about your online \"activities” \"chats” and will also tell them where they can find more info/ NOTE: IF you banish [sic] from online without giving in to my demands I will still do what I just said above. U can’t hide, U will be the loser. . \"Given to or expressing lust; lecherous” or \"[ejxciting sexual desires;" }, { "docid": "22273411", "title": "", "text": "defendant has an extremely difficult burden of showing on appeal that the lower court’s action was an abuse of discretion.” The reason why substantial prejudice from a denial of relief under Rule 14 must be shown is that to reverse on any lesser showing would undermine the policies behind Rule 8 and essentially read that rule from the books. Rule 8(a), with which we are here concerned, necessarily recognizes the adverse effect on the defendant by a joinder of counts, but considers this to be outweighed by gains in trial economy when one of the criteria of the rule are met. Granting separate trials under Rule 14 simply on a showing of some adverse effect, particularly solely the adverse effect of being tried for two crimes rather than one, would reject the balance struck in Rule 8(a), since this type of “prejudice” will exist in any Rule 8(a) case. See United States v. Smith, 112 F.2d 83, 85 (2 Cir. 1940) (“That [defendant] suffered some disadvantage is not improbable, for, even when cautioned, juries are apt to regard with a more jaundiced eye a person charged with two crimes than a person charged with one. But Congress has authorized consolidation in the belief that public considerations of economy and speed outweigh possible unfairness to the accused.”); United States v. Barrett, supra, 505 F.2d at 1106 (“Obviously any adding of offenses to others is prejudicial to some extent.”). While the mere fact that “juries are apt to regard with a more jaundiced eye a person charged with two crimes than a person charged with one” does not call for relief under Rule 14, trial courts must be alert to the danger that, as said by Judge L. Hand before adoption of the Rules of Criminal Procedure, in United States v. Lotsch, 102 F.2d 35, 36 (2 Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939): the jury may use the evidence cumulatively; that is, that although so much as would be admissible upon any one of the charges might not have persuaded them of the accused’s guilt," }, { "docid": "6481935", "title": "", "text": "F.2d 460 (2d Cir.), cert. denied, 419 U.S. 833, 95 S.Ct. 58, 42 L.Ed.2d 59 (1974); United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1974). Carmichael and Flowers also argue that even if joinder was permissible under Rule 8, the judge in his discretion should have granted severance under Rule 14 because joinder resulted in prejudice to them. They reason that they were prejudiced because the jury might have improperly cumulated all the evidence to infer a criminal disposition or to find guilt on all offenses when they may have been acquitted in separate trials solely on evidence of the separate offenses. See United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir. 1977). As the government points out, however, evidence of the conspiracy and actual vote buying would have been admissible against each defendant in separate trials for obstruction of justice to prove motive. Likewise, evidence supporting the obstruction of justice count against each defendant would be admissible against each defendant in a separate trial on conspiracy and the substantive counts to show criminal intent. See United States v. Seidel, 620 F.2d 1006, 1012 (4th Cir. 1980). Carmichael and Flowers vigorously contend, however, that if they had been tried separately on the obstruction of justice counts, evidence supporting the obstruction charge against Carmichael would not have been admissible against Flowers and vice versa. Nevertheless, prejudice does not result automatically from a situation where some evidence not admissible in separate trials is admitted in a joint trial. We agree with the Sixth Circuit that absent any unusual circumstances the matter of severance rests in the sound discretion of the trial judge, particularly where there is a charge of conspiracy as well as other counts of an indictment alleging substantive violations. United States v. Branan, 457 F.2d 1062, 1066 (6th Cir. 1972). Although every bit of evidence that was admissible in the defendants’ joint trial might not be admissible against each of them in separate trials of the obstruction charges, we perceive no particular danger that the jury would cumulate such evidence against either Flowers or Carmichael. We, therefore, find" }, { "docid": "20928009", "title": "", "text": "2 of the indictment are dismissed as time barred. II. Defendant’s Motion to Sever Count 11 of the Indictment is Denied Defendant argues that Count 11 of the indictment should be severed as improperly joined or, in the alternative, because it will unfairly prejudice him. The government opposes. Rule 8(a) of the Federal Rules of Criminal Procedure provides that “[t]he indictment ... may charge a defendant in separate counts with 2 or more offenses if the offenses charged ... are of the same or similar character ... or are connected with or constitute parts of a common scheme or plan.” Fed. R.Crim. P. 8(a). The Second Circuit has stressed that Rule 8(a) joinder “is not limited to crimes of the ‘same’ character but also covers those of ‘similar’ character, which means ‘[n]early corresponding; resembling in many respects; somewhat alike; having a general likeness.’ ” United States v. Werner, 620 F.2d 922, 926 (2d Cir.1980) (quoting Webster’s New International Dictionary (2d ed.)). Courts also have found joinder proper for distinct criminal acts where they originated from a common scheme. Id. at 927 (citing United States v. Rabbitt, 583 F.2d 1014, 1021 (8th Cir.1978)) (Join-der is proper for separate bribery schemes because defendant used his “power, authority, and influence as a legislator” to obtain money.). Important policy considerations “of trial convenience and economy of judicial and prosecutorial resources” also support Rule 8(a) joinders. Werner, 620 F.2d at 928. Where the proper joinder of offenses in an indictment appears to prejudice a defendant, a district court may order separate trials. See Fed. R.Crim. P. 14(a). That decision is within the “sound discretion” of' the district court. United States v. Salameh, 152 F.3d 88, 115 (2d Cir.1998) (citations omitted). To prevail under a Rule 14 motion for a separate trial, “ ‘the defendant must show not simply some prejudice but substantial prejudice.’ ” United States v. Sampson, 385 F.3d 183, 190 (2d Cir.2004) (quoting Werner, 620 F.2d at 928) (emphasis in original). Substantial prejudice means “ ‘prejudice so great as to deny [the defendant] a fair trial.’ ” Salameh, 152 F.3d at 115 (quoting" }, { "docid": "18958536", "title": "", "text": "and the same principles of prophylaxis are applicable. Id. at 89-90 (emphasis added). These concerns were perhaps best summarized by then Circuit Court of Appeals Judge Learned Hand in United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.1939), when he said: There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused’s guilt, the sum of it will convince them as to all. This possibility violates the doctrine that only direct evidence of the transaction charged will ordinarily be accepted, and that the accused is not to be convicted because of his criminal disposition. Yet in the ordinary affairs of life such a disposition is a convincing factor, and its exclusion is rather because the issue is practically unmanageable than because it is not rationally relevant---- In military practice, concerns arising from joinder of offenses must be vigilantly addressed by all practitioners, as severance is rarely granted. As Chief Judge Cox accurately observed in United States v. Haye, 29 M.J. 213, 215 (C.M.A.1989), severance motions have historically been frowned upon, and unitary sentencing in the military favors joining all known offenses at a single trial. We are apparently comfortable in military practice with the assumption that properly drafted and delivered instructions are sufficient to prevent juries from cumulating evidence, thus avoiding improper spill-over. See United States v. Duncan, 48 M.J. 797, 803 (N.M.Ct.Crim.App.1998); United States v. Diaz, 39 M.J. 1114, 1117-8 (A.F.C.M.R.1994). That is a safe assumption only to the extent that such instructions are actually given. In this case they were not. The standard spill-over instruction currently used in military court-martial practice reads as follows: Each offense must stand on its own and you must keep the evidence of each offense separate. The burden is on the prosecution to prove each and every element of each offense beyond a reasonable doubt. Proof of one offense carries with it no inference that the accused is guilty" }, { "docid": "18958535", "title": "", "text": "Cir.1998). Similar concerns exist when separate offenses are joined together for trial at the same time. The possibility is very real that juries will use the evidence of one of the crimes charged to infer a criminal disposition on the part of an accused in regard to other crime(s) charged. Generally, the law seeks to prevent juries from cumulating the evidence of the various crimes charged to find guilt when, if considered separately, they would not so find. Drew v. United States, 331 F.2d 85, 87 (D.C.Cir.1964). As Judge McGowan wrote in Drew: It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged. Since the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose. The same dangers appear to exist when two crimes are joined for trial, and the same principles of prophylaxis are applicable. Id. at 89-90 (emphasis added). These concerns were perhaps best summarized by then Circuit Court of Appeals Judge Learned Hand in United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.1939), when he said: There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused’s guilt, the sum of it will convince them as to all. This possibility violates the doctrine that only direct evidence of the transaction charged will ordinarily be accepted, and that the accused is not to be convicted because of his criminal disposition. Yet in the ordinary affairs of life such a disposition is a convincing factor, and its exclusion is rather because the issue is practically unmanageable than because it is not rationally relevant---- In military practice, concerns arising from joinder of offenses must be vigilantly addressed by all" } ]

[ { "docid": "334061", "title": "", "text": "Opinion of the Court SULLIVAN, Judge: In May 1983 appellant was tried by a general court-martial composed of officer and enlisted members at Fort Clayton, Panama. Contrary to his pleas, he was found guilty of involuntary manslaughter and assault and battery upon a child under 16, in violation of Articles 119 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 919 and 928, respectively. He was sentenced to bad-conduct discharge, confinement for 2 years and 6 months, and reduction to the lowest enlisted grade. The convening authority approved the sentence, and the Court of Military Review affirmed in an unpublished opinion. We granted appellant’s petition for review to consider the following issue: WHETHER THE EVIDENCE WAS SUFFICIENT TO SHOW GUILT OF MORE THAN NEGLIGENT HOMICIDE. We hold, based on the evidence of record, that a rational trier of fact could have concluded beyond a reasonable doubt that appellant was guilty of involuntary manslaughter. See generally Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d. 560 (1979); United States v. Harper, 22 M.J. 157 (C.M.A.1986). The evidence shows that the alleged victim, 13-month-old Jeanie Jenkins, lived with her mother, Specialist Four Kelly Jenkins; her mother’s fiance, Private First Class Donald Holm; and appellant’s wife at his government quarters. Private Edward Kinser, a friend of appellant, also spent considerable time at the quarters and regularly ate dinner there. All of the residents of the quarters assisted Specialist Jenkins in caring for her daughter, Jeanie. Specialist Jenkins testified that on the afternoon of January 19, 1983, she bathed Jeanie. At that time Jeanie had no bruises or other marks on her body indicating ill treatment. Between 1800 and 1900 Kinser came by. As Jenkins spoke to him outside the quarters, she heard Jeanie crying and saw appellant holding the child at the door to the quarters. Shortly thereafter she heard the baby’s voice take on “a high pitched tone.” Jenkins further testified that after she entered the quarters, she questioned appellant as to the whereabouts of the child. Appellant responded “that he had carried” the child “around.. .to show her" } ]

[ { "docid": "16486028", "title": "", "text": "for review under Article 67(a)(2), UCMJ, 10 USC § 867(a)(2)(1989). On June 15, 1994, this Court affirmed the decision of the Court of Military Review. 39 MJ 288. A rehearing on the unpremeditated-murder charge and the sentence was held before a general court-martial composed of a military judge sitting alone at Bolling Air Force Base, Washington, D.C., between January and March 1995. Appellant pleaded guilty and was found guilty of the unpremeditated murder of his son, in violation of Article 118. On March 22, 1995, he was sentenced to a dishonorable discharge, 21 years’ confinement, and reduction to the rank of airman basic. On August 10, 1995, the convening authority approved the sentence except for confinement in excess of 20 years, in accordance with a pretrial agreement. On July 30, 1996, the Court of Criminal Appeals affirmed in an unpublished opinion. On March 4,1997, this Court granted review on the following issue of law: WHETHER APPELLANT IS ENTITLED TO CONFINEMENT CREDIT FOR THE PERIOD BETWEEN HIS FIRST TRIAL AND THE SUBSEQUENT REHEARING BECAUSE HIS CONFINEMENT WAS NOT PROPERLY TOLLED OR BECAUSE HE WAS SUBJECT TO PUNISHMENT IN VIOLATION OF ARTICLE 13, UCMJ. We hold that 20-months’ additional sentence credit is warranted as a result of appellant’s punishment by military authorities after his first court-martial sentence was set aside but before his second court-martial sentence was imposed. See generally United States v. Cruz, 25 MJ 326 (CMA1987). The Court of Criminal Appeals stated the following concerning this issue: Confinement Credit We released our first opinion setting aside appellant’s conviction of Charge II, unpremeditated murder, and the sentence on October 8, 1992. On October 21, 1992, appellant was released from the United States Disciplinary Barracks (USDB) notwithstanding the government’s decision to certify our decision to our superior court. During the pendency of the government’s unsuccessful appeal ... [but prior to] appellant’s post-trial confinement following the rehearing on March 22, 1995, he was assigned as a “casual” to Lowry Air Force Base (AFB), Colorado. With the closure of Lowry AFB, appellant was transferred to the Charleston Navy Brig, Charleston, South Carolina, in July" }, { "docid": "12133494", "title": "", "text": "Opinion of the Court SULLIVAN, Judge: In October 1985, appellant was tried by a military judge sitting alone as a general court-martial at Fort Benning, Georgia. Contrary to his pleas, he was found guilty of involuntary manslaughter and assault consummated by a battery upon a child under the age of 16, in violation of Articles 119(b)(1) and 128(a), Uniform Code of Military Justice, 10 U.S.C. §§ 919(b)(1) and 928(a), respectively. Appellant was sentenced to a dishonorable discharge, confinement for 34 months, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence as adjudged. The Court of Military Review affirmed the findings and sentence in a short-form opinion. This Court specified the following issue for review: WHETHER, AS A MATTER OF LAW, THE EVIDENCE IS SUFFICIENT TO PROVE THAT APPELLANT WAS GUILTY OF THE OFFENSES OF WHICH HE STANDS CONVICTED. We hold, based on the evidence of record, that a rational factfinder could have concluded beyond a reasonable doubt that appellant was guilty of involuntary manslaughter and the assault. See generally Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Harper, 22 M.J. 157 (C.M.A.1986). Appellant was found guilty of killing by culpable negligence his natural son, Terry-Brown, Jr., and of beating his 7-year-old stepson, Alton. His wife, Jacqueline Brown, testified to the events of June 6, 1985, which surrounded the death of her 5-week-old boy. They included a period of exclusive custody by appellant and a high pitched scream by the baby during this time. She also testified that appellant’s prior play with this child included shaking the child and throwing him in the air. Appellant essentially confirmed this testimony. In addition, Alton testified concerning his observations on the night in question. Various doctors testified to the physical condition of the baby that night and statements made by appellant and his wife. Finally, other doctors, including one who performed the autopsy, offered their expert opinions that violent shaking caused the baby’s death. There was, however, no eyewitness testimony that appellant committed a negligent act which caused the death" }, { "docid": "13527110", "title": "", "text": "Judge GIERKE delivered the opinion of the Court. Appellant was charged with the unpremeditated murder of his infant daughter and making a false official statement, in violation of Articles 118 and 107, Uniform Code of Military Justice, 10 USC §§ 918 and 907, respectively. A general court-martial composed of officer and enlisted members convicted him, contrary to his pleas, of involuntary manslaughter, a lesser-included offense of unpremeditated murder, in violation of Article 119, UCMJ, 10 USC § 919, and making a false official statement. The adjudged and approved sentence provided for a dishonorable discharge, confinement for 8 years, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the conviction of involuntary manslaughter but set aside the conviction of making a false official statement, because it found the evidence factually insufficient. See Art. 66(c), UCMJ, 10 USC § 866(c). It reassessed the sentence and reduced the confinement from 8 years to 7 years. 50 MJ at 680, 685. On appellant’s petition, this Court granted review to determine whether the military judge erred by failing to instruct on the defense of accident and by failing to instruct on the lesser-included offense of negligent homicide in violation of Article 134, UCMJ, 10 USC § 934. Factual Background On May 9, 1995, appellant’s 9-month-old daughter died as a result of edema, caused by a subdural hematoma. The prosecution theory was that appellant killed his infant daughter by striking and shaking her. The defense theory was that the infant was fatally injured because she was not properly secured in her car seat when appellant swerved his vehicle to avoid a traffic accident. There were no witnesses to the infliction of injuries on the infant or the alleged traffic incident, except for appellant. It was uncontested that the infant was in appellant’s custody when the fatal injuries occurred. Appellant made three statements explaining the infant’s injuries. In all three, he described an incident where he violently swerved and braked to avoid a traffic accident. There was no collision. On May 9, 1995, immediately after the infant was taken to a" }, { "docid": "12126237", "title": "", "text": "Opinion of the Court GIERKE, Judge: A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of attempted unpremeditated murder, assault on a child under the age of 16 (two specifications), and false swearing, in violation of Articles 80, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 880, 928, and 934, respectively. The approved sentence provided for a dishonorable discharge, confinement for 11 years, total forfeitures, and reduction to Private E-l. The Court of Military Review reversed one of the assault convictions for insufficient evidence, affirmed the remaining findings, and reassessed the sentence, affirming only so much of the sentence as provided for a dishonorable discharge, confinement for 10 years, total forfeitures, and reduction to Private E-1. 34 MJ 1071, 1076 (1992). We granted review of the following issue: WHETHER THE EVIDENCE IS SUFFICIENT AS A MATTER OF LAW TO SUPPORT THE FINDING OF GUILTY TO FALSE SWEARING. The various charges against appellant all arose from allegations that he abused his infant son. With respect to the charge of false swearing, appellant gave a written statement to a criminal investigator, Special Agent (SA) Steven Lawhead, claiming that the skull fracture suffered by his son was an accident. The military judge found that this statement was false and convicted appellant of false swearing. Before this Court appellant contends that the evidence is insufficient to support his conviction as a matter of law because the Government failed to prove that the oath for the written statement was administered by a person having authority to do so. We disagree. In this case SA Lawhead testified that he was a criminal investigator who investigated the allegations that appellant had abused his child. As part of that investigation SA Law-head interviewed appellant, reduced appellant’s statement to writing (pros. ex. 1), and administered an oath to appellant. The preprinted form containing appellant’s written statement includes an “Affidavit” section containing appellant’s signature followed by the entry: “Subscribed and sworn to before me, a person authorized by law to administer oaths, this 4th day of Oct, 1989, at Babenhausen CID/IC office.”" }, { "docid": "22315701", "title": "", "text": "Judge GIERKE delivered the opinion of the Court. A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of a 12-day unauthorized absence and assault on a child under the age of sixteen years (two specifications), in violation of Articles 86 and 128, Uniform Code of Military Justice (UCMJ), 10 USC §§ 886 and 928, respectively. The adjudged sentence provides for a dishonorable discharge, confinement for three years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority reduced the confinement to 24 months but otherwise approved the sentence. The Court of Criminal Appeals set aside the conviction of unauthorized absence and reassessed and affirmed the sentence. 55 MJ 666 (2001). On reconsideration, the court below granted appellant 12 days of confinement credit under United States v. Allen, 17 MJ 126 (CMA 1984). 54 MJ 954 and 55 MJ 670 (2001). This Court granted review of the following issue: WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN CONCLUDING THAT APPELLANT HAD NOT BEEN PREJUDICED BY EXCESSIVE POST-TRIAL DELAY WHERE THE COURT BELOW CONCLUDED THAT THE DELAY WAS BOTH “UNEXPLAINED AND UNREASONABLE” AND “CASTS A SHADOW OF UNFAIRNESS OVER OUR MILITARY JUSTICE SYSTEM.” For the reasons set out below, we hold that a Court of Criminal Appeals has authority under Article 66(c), UCMJ, 10 USC § 866(e), to grant appropriate relief for unreasonable and unexplained post-trial delays. We further hold that this authority under Article 66(e) is distinct from the court’s authority under Article 59(a), UCMJ, 10 USC § 859(a), to overturn a finding or sentence “on the ground of an error of law[.]” Finally, we hold that the court’s authority to grant relief under Article 66(c) does not require a predicate holding under Article 59(a) that “the error materially prejudices the substantial rights of the accused.” Because the court below considered itself constrained from granting relief by Article 59(a) and did not consider the impact of the post-trial delays in its review under Article 66(c), we remand the case for further consideration. Appellate History The chronology of post-trial events in appellant’s" }, { "docid": "12108368", "title": "", "text": "Opinion of the Court SULLIVAN, Chief Judge: 1. In August and September 1992, appellant was tried by a general court-martial composed of officer and enlisted members at Bremerhaven, Germany. Contrary to his pleas, he was found guilty of involuntary manslaughter, assault with a dangerous weapon (2 specifications), and carrying a concealed weapon, in violation of Articles 119, 128(b)(2), and 134, Uniform Code of Military Justice, 10 USC §§ 919, 928(b)(2), and 934, respectively. The members sentenced appellant to confinement for 24 months, total forfeitures, and reduction to pay grade E-l. On January 19,1993, the convening authority approved the sentence as adjudged. On July 26, 1994, the Court of Military Review set aside the findings of guilty of the involuntary manslaughter and assault charges, and dismissed those charges and specifications. That court reassessed the sentence and affirmed only so much of the sentence as provided for confinement and total forfeitures for 6 months, and reduction to Private El. 40 MJ 914, 917, 919 (1994). 2. On October 25, 1994, this Court granted review on the following issue raised by appellate defense counsel: WHETHER THE ARMY COURT OF MILITARY REVIEW ABUSED ITS DISCRETION IN REASSESSING RATHER THAN SETTING ASIDE THE SENTENCE AFTER SETTING ASIDE THE FINDINGS OF GUILTY AND DISMISSING CHARGES OF INVOLUNTARY MANSLAUGHTER AND ASSAULT BY INTENTIONAL INFLICTION OF GRIEVOUS BODILY HARM FOR SHOOTING INDISCRIMINATELY INTO A CROWD AND INJURING TWO INDIVIDUALS (TWO SPECIFICATIONS), LEAVING ONLY A CONVICTION FOR CARRYING A CONCEALED WEAPON. We hold that the Court of Military Review did not err in reassessing appellant’s sentence. See United States v. Jones, 39 MJ 315, 317 (CMA 1994); United States v. Glazier, 26 MJ 268, 271 (CMA 1988). 3. The facts, as found by the Court of Military Review, are as follows: The evidence of record unequivocally establishes that, while attending a festival in Bremerhaven, Germany, on the evening of 18 May 1992, the appellant fired a nine-millimeter pistol into a group of young men of Turkish descent, wounding three of them, one fatally. The appellant’s actions may have been spawned by another incident that had occurred at the festival" }, { "docid": "12121677", "title": "", "text": "Opinion of the Court COX, Judge: Appellant stands convicted, contrary to his pleas, of unpremeditated murder, larceny, and maiming, in violation of Articles 118(2), 121, and 124, Uniform Code of Military Justice, 10 USC §§ 918(2), 921, and 924, respectively. His approved sentence extends to a dishonorable discharge, confinement for life, and reduction to Private E-1. The Court of Military Review affirmed these results. See 35 MJ 555 (1992). We granted review of three issues. The first relates both to the murder and the maiming charges and questions whether an item of erroneously received hearsay evidence prejudiced appellant. The second challenges the sufficiency of evidence of murder and maiming. The third questions the correctness of the military judge’s instructions on unpremeditated murder. 38 MJ 225 (1993). Taking these issues out of order, we resolve each of them against appellant, and we affirm. Regarding the correctness of the military judge’s instructions on murder and the sufficiency of evidence of murder, appellant’s contention primarily is that his conviction cannot be based, in whole or in part, on his “omissions,” here his failure to seek free medical attention for his obviously deteriorating child. In so arguing, appellant takes on a firmly-established principle of Anglo-American law. Before discussing the law, however, a solid basis in fact is necessary. The Court of Military Review partially summarized the evidence of record, as follows: The murder, maiming, and neglect charges involved the physical abuse and neglect of Sergeant Valdez’ young daughter, Michelle. Eight years old at the time of her death, Michelle was physically abused, despised, and neglected by her stepmother, her older sister, and two stepsisters. The appellant, who also participated from time to time in the abuse, frequently turned a blind eye to the treatment of Michelle by his family and to the deteriorating physical condition of the child. His failure to intervene, to provide medical care, as well as his abusive and neglectful course of conduct are the subject of the case before us. Michelle’s death came to light on the morning of 28 March 1990, when the appellant received a telephone call from" }, { "docid": "16486027", "title": "", "text": "Opinion of the Court SULLIVAN, Judge: In 1990, appellant, then a technical sergeant (E-6) in the Air Force, was tried by a general court-martial consisting of members at Kadena Air Base, Okinawa, Japan. Contrary to his pleas, he was found guilty of the unpremeditated murder of his 18-month-old son, battery of his 3-year-old daughter, and willful disobedience of a lawful order not to be alone with his children, in violation of Articles 118, 128, and 91, Uniform Code of Military Justice, 10 USC §§ 918, 928, and 891, respectively. On September 26, 1990, he was sentenced to a dishonorable discharge, confinement for 50 years, total forfeitures, and reduction to airman basic. On October 8, 1992, the Court of Military Review set aside the findings of guilty to unpremeditated murder but affirmed the findings of guilty to battery and disobedience of an order. It also set aside the sentence and ordered a rehearing if practicable. 35 MJ 820. On November 4, 1992, the Judge Advocate General of the Air Force certified this ease to our Court for review under Article 67(a)(2), UCMJ, 10 USC § 867(a)(2)(1989). On June 15, 1994, this Court affirmed the decision of the Court of Military Review. 39 MJ 288. A rehearing on the unpremeditated-murder charge and the sentence was held before a general court-martial composed of a military judge sitting alone at Bolling Air Force Base, Washington, D.C., between January and March 1995. Appellant pleaded guilty and was found guilty of the unpremeditated murder of his son, in violation of Article 118. On March 22, 1995, he was sentenced to a dishonorable discharge, 21 years’ confinement, and reduction to the rank of airman basic. On August 10, 1995, the convening authority approved the sentence except for confinement in excess of 20 years, in accordance with a pretrial agreement. On July 30, 1996, the Court of Criminal Appeals affirmed in an unpublished opinion. On March 4,1997, this Court granted review on the following issue of law: WHETHER APPELLANT IS ENTITLED TO CONFINEMENT CREDIT FOR THE PERIOD BETWEEN HIS FIRST TRIAL AND THE SUBSEQUENT REHEARING BECAUSE HIS CONFINEMENT" }, { "docid": "17058750", "title": "", "text": "the case for factual sufficiency. It is undisputed that military judges are presumed to know the law and to follow it, absent clear evidence to the contrary. United States v. Prevatte, 40 MJ 396, 398 (CMA 1994), citing United States v. Vangelisti, 30 MJ 234 (CMA 1990). Certainly, appellate judges of the Courts of Criminal Appeals are deserving of no less a presumption. Secondly, the lead opinion below demonstrates that the two judges who agreed that the evidence was not factually sufficient to sustain the conviction did not consider the polygraph evidence when making that determination. The lead opinion clearly states, “Furthermore, we have made a conscious effort not to be influenced by the inadmissible exculpatory polygraph.” Unpub. op. at 4, 1996 WL 104904. We know of no proposition of law that would allow us to disbelieve this assertion absent clear and convincing evidence to the contrary. We are satisfied that the Court of Criminal Appeals did not stray from its statutory charter in its review of this case. Accordingly, the certified question is answered in the negative. The decision of the United States Air Force Court of Criminal Appeals dismissing the charges is affirmed. Appellant was tried by a military judge sitting alone as a general court-martial at Tyndall Air Force Base, Florida. Contrary to his pleas, he was convicted of sodomy and committing indecent acts with a child, in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 USC §§ 925 and 934, respectively. He was sentenced to a dishonorable discharge, confinement for 8 years, total forfeitures, and reduction to the lowest enlisted pay grade. The Court of Criminal Appeals set aside the findings and sentence and dismissed all of the charges in an unpublished opinion." }, { "docid": "16068480", "title": "", "text": "Judge CRAWFORD delivered the opinion of the Court. Contrary to his pleas, Appellant was convicted of receiving and possessing child pornography, and misusing the Internet in an attempt to entice minors in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000). The convening authority approved the sentence of a dishonorable discharge, forty-five months of confinement, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. FACTS In light of United States v. O’Connor, 58 M.J. 450 (C.A.A.F.2003), we set aside the findings of guilty to possessing and receiving child pornography and remanded the case. United States v. Moffeit, 60 M.J. 348 (C.A.A.F.2004). The lower court was given the option of either dismissing those specifications and reassessing the sentence based on the remaining internet offense, or order a rehearing. Id. The lower court reassessed the sentence reducing the confinement to thirty-three months. The lower court, citing United States v. Sales, 22 M.J. 305 (C.M.A. 1986), said: Applying this [SaZes] analysis, and after careful consideration of the entire record, we are satisfied beyond a reasonable doubt that, in the absence of Specifications 1 and 2 of the Charge, the military judge would have adjudged a sentence of no less than a dishonorable discharge, confinement for [thirty-three] months, forfeiture of all pay and allowances, and reduction to E-l. United States v. Moffeit, No. ACM 35159, 2004 CCA LEXIS 297, at *3,2005 WL 11588, at *1 (A.F.Ct.Crim.App. Dee. 8, 2004). Judge Johnson, concurring in part and dissenting in part, indicated she would have returned this case for a new sentence rehearing. Id. at 2004 CCA LEXIS 297, at *4, 2005 WL 11588, at *1. After reassessment, we granted the following issue: WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION BY REASSESSING APPELLANT’S SENTENCE TO INCLUDE A DISHONORABLE DISCHARGE AND 33 MONTHS OF CONFINEMENT RATHER THAN ORDERING A REHEARING ON THE SENTENCE. In Sales, we held that a Court of Criminal Appeals (CCA), in dismissing a charge, may reassess the sentence and that sentence must be equal to or no greater than a" }, { "docid": "1290673", "title": "", "text": "Judge EFFRON delivered the opinion of the Court. At a general court-martial composed of a military judge sitting alone, Appellant was convicted, pursuant to mixed pleas, of disobeying a superior officer (two specifications); violating a general regulation; violating the Child Pornography Prevention Act (CPPA), 18 U.S.C. § 2252A (2000) (four specifications); soliciting another to rape a child; and false swearing, in violation of Articles 90, 92, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 890, 892, 934 (2000), respectively. The adjudged sentence included a dishonorable discharge, confinement for ten years, total forfeiture of pay and allowances, and reduction to the lowest enlisted grade. The convening authority approved the sentence and granted Appellant ninety-nine days of confinement credit. In an unpublished opinion, the United States Army Court of Criminal Appeals disapproved the finding of guilty for soliciting the rape of a child but approved a finding of guilty to the lesser offense of soliciting another person to commit the offense of carnal knowledge. The court affirmed the remaining findings of guilt, reassessed the sentence, and affirmed only so much of the sentence as provided for a dishonorable discharge, confinement for 114 months, total forfeiture of pay and allowances, and reduction to the lowest enlisted grade. United States v. Hays, No. ARMY 20001100 (A. Ct. Crim. App. Jan. 22, 2004). On Appellant’s petition, we granted review of the following four issues: I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING A FINDING OF GUILTY OF SOLICITATION OF CARNAL KNOWLEDGE WHERE: (1) THE COURT USED AN OVERBROAD DEFINITION OF SOLICITATION; AND (2) THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT A FINDING THAT APPELLANT SOLICITED “JOHN D_” TO COMMIT CARNAL KNOWLEDGE BECAUSE APPELLANT’S ACTS DID NOT AMOUNT TO SOLICITATION. II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING A CONVICTION OF SOLICITATION OF CARNAL KNOWLEDGE WHERE: (1) THE COURT RELIED ON ERRONEOUSLY INTRODUCED EVIDENCE OF UNCHARGED MISCONDUCT; (2) THE COURT RELIED ON IMPROPER EXPERT TESTIMONY WHICH WAS UNHELPFUL AND AMOUNTED TO INADMISSIBLE PROFILE EVIDENCE AND LEGAL OPINIONS; AND (3) THE COURT MISTAKENLY DETERMINED THAT THE COMBINED IMPACT" }, { "docid": "17039992", "title": "", "text": "see generally Art. 59(a), UCMJ, 10 USC § 859(a). Finally, even if appellant’s admitted conduct did not violate any subsection of 18 USC § 2252 (1994), I would still affirm his conviction under Article 134, UCMJ, 10 USC § 934. Possession of 126 computer images of child pornography, lasciviously organized into four directories on a personal computer, in government housing on a military post, is per se service discrediting conduct in my view. Affirmance of his conviction for this conduct under Article 134 is warranted, even if no civilian offense was established. See United States v. Gallegos, 41 MJ 446 (1995) (manifest example of conduct prejudicial to good order and discipline affirmed as offense under Article 134, despite failure to constitute civilian offense). CRAWFORD, Judge (dissenting): When investigative officers searched appellant’s home in June 1996, they seized not only his computer, which contained 126 files of child pornography divided into 4 directories he had labeled “Children,” “Pre-teen,” “Weird,” and “XXX”; they also seized one picture of verified child pornography and subscription information for the pornographic bulletin-board system appellant was running from his home. In the end, appellant was only charged with a single specification of possession of child pornography, in addition to his larceny, conspiracy, and false claim offenses. Pursuant to a pretrial agreement, appellant pled guilty to all the charges and was sentenced only to a dishonorable discharge, 42 months’ confinement, total forfeitures, and a reduction to the lowest rank. He fared well. Appellant now argues that his plea to the child pornography offense was improvident and that this Court should dismiss the conviction and reassess his sentence. For the following reasons, I believe that we should not do so. By pleading guilty, appellant waived a trial on the facts and made a conscious decision to relieve the Government of its responsibility to prove all of the elements of its case. See United States v. Faircloth, 45 MJ 172 (1996). Essentially, a plea of guilty by an accused changes the substance of the court-martial. Further, “[bjecause [appellant] pleaded guilty, the issue must be analyzed in terms of providence of" }, { "docid": "15619454", "title": "", "text": "Senior Judge COX delivered the opinion of the Court. On October 22, December 9, 12, and 13, 1996, and January 16, 1997, appellant, a staff sergeant, was tried by a general court-martial comprised of officer and enlisted members. Pursuant to his pleas, he was found guilty of carnal knowledge, in violation of Article 120, Uniform Code of Military Justice, 10 USC § 920. Contrary to his pleas, he was found guilty of one specification each of maltreatment and assault consummated by a battery, in violation of Articles 93 and 128, UCMJ, 10 USC §§ 893 and 928, respectively. Appellant was sentenced to a bad-conduct discharge, 5 years’ confinement, forfeiture of $874.00 pay per month for 60 months, and reduction to the grade of Private E-l. The convening authority approved this sentence. The carnal-knowledge conviction resulted from appellant’s admitted sexual intercourse (3 times) with S, a 14-year-old girl he was babysitting. Appellant does not appeal this conviction. The maltreatment and assault-consummated-by-a-battery convictions resulted from incidents which occurred between appellant and Specialist (SPC) MC over a year (June 1995-June 1996). The Court of Criminal Appeals set aside the finding of guilty of maltreatment of SPC MC and dismissed that charge in an unpublished opinion. The convictions for carnal knowledge (of SP) and assault consummated by a battery (of SPC MC) were affirmed. Unpub. op. at 2-3. The sentence was also affirmed, based on the entire record and the error noted, under United States v. Sales, 22 MJ 305 (CMA1986). Unpub. op. at 3. We granted review of the following issues: I WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO PROVE APPELLANT GUILTY OF ASSAULT AND BATTERY AS [SPC MC] CONSENTED TO THE TOUCHING. II WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO PROVE APPELLANT GUILTY OF ASSAULT AND BATTERY AS [SPC MC’s] CONDUCT GAVE APPELLANT THE MISTAKEN BELIEF THAT SHE CONSENTED TO THE TOUCHING. FACTS At the time of the offenses, SPC MC was stationed at Fort Drum in the 10th Mountain Division Band. According to SPC C, appellant was SPC C’s squad leader, operations NCO, and friend. When asked if appellant had ever" }, { "docid": "7147070", "title": "", "text": "lieu of court-martial. Relief can be granted, however, only if the error materially prejudiced appellant. The Government brief in reply to the assignment of errors states that the testimony of Corporal Hutchens “inured to the benefit of the appellant because he was found guilty of an offense which carried a lesser punishment.” This argument misses the point altogether, since it overlooks the fact that the statements were used by the Government to convict the accused of the lesser included offense when without them he might have been found not guilty. Indeed, the only real factual issue concerning the charged offense of destroying government property was whether the property was destroyed or lost willfully or through neglect or by some non-criminal means, and whether the evidence was sufficient to prove guilt of an Article 108, UCMJ, offense beyond a reasonable doubt. The record of trial contains no evidence that the messages were lost, other than the testimony of Corporal Hutchens. The testimony of Corporal Polly points to willful destruction, of which the members refused to convict. We have little doubt, therefore, that the members' finding of guilt as to the lesser included offense of negligently losing government property is based entirely, as to the one element, on the erroneously admitted testimony of Corporal Hutchens. Prejudice to appellant is obvious. The maximum punishment that the members could have awarded for the offenses of which the accused was found guilty was dishonorable discharge, confinement for 11 years, 4 months, total forfeiture of all pay and allowances, and reduction to E-l. The thrust of the sentencing arguments by both prosecution and defense centered upon what could be described as the physical abuse of a child on two occasions. Appellant was also convicted of other discreditable offenses. We feel confident in reassessing the sentence at this level without ordering a rehearing on the sentence. Accordingly, the finding of guilty of Charge IV and its specification as excepted and substituted is set aside and that charge and specification are dismissed. The remaining findings of guilty are affirmed. Upon reassessment, we affirm the sentence as adjudged and" }, { "docid": "12074002", "title": "", "text": "Opinion of the Court COX, Judge: Contrary to his pleas, appellant was convicted by a military judge sitting alone as a general court-martial of involuntary manslaughter, false swearing, sale of cocaine, and two specifications of transfer of cocaine, in violation of Articles 119 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 919 and 934, respectively. His sentence to confinement for 119 months, forfeiture of all pay and allowances, reduction to E-l, and a dishonorable discharge was approved by the convening authority. The Court of Military Review affirmed the findings and sentence in an unpublished opinion. We granted review of the following issue: WHETHER THE EVIDENCE IS SUFFICIENT AS A MATTER OF LAW TO SUSTAIN A FINDING OF GUILTY AS TO THE SPECIFICATION OF CHARGE I (INVOLUNTARY MANSLAUGHTER). Finding the evidence to be legally sufficient, we affirm. Appellant was convicted of involuntary manslaughter by culpable negligence under Article 119(b)(1) on the basis of a specification reading as follows after findings: In that Specialist Four Garry L. Henderson, US Army, Medical Company B, Tripler Army Medical Center, did, at Tripler Army Medical Center, Hawaii, an installation under military control, on or about 16 June 1981, by culpable negligence unlawfully kill Specialist Four Myers W. Hickman, a member of Medical Company B, Tripler Army Medical Center, by making available to the said Specialist Four Myers W. Hickman a large quantity of cocaine, then knowing of Specialist Four Myers W. Hickman’s propensity to abuse cocaine and then knowing that the said Specialist Four Myers W. Hickman would inject a large amount of the cocaine into his body; by permitting the said Specialist Four Myers W. Hickman to utilize his (the accused’s) room in which to inject the drugs into his body. The Government had the burden of proving beyond a reasonable doubt that the following occurred: (1) Myers W. Hickman was dead; (2) his death resulted from the acts of appellant, as alleged; and (3) appellant’s acts constituted culpable negligence. Para. 1986, Manual for Courts-Martial, United States, 1969 (Revised edition). Without question, the Government proved that Myers Hickman was dead and that" }, { "docid": "13068130", "title": "", "text": "Judge GIERKE delivered the opinion of the Court. A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of assault with a dangerous weapon and assault consummated by a battery, in violation of Article 128, Uniform Code of Military Justice (UCMJ), 10 USC § 928. The military judge also convicted appellant, contrary to his pleas, of soliciting another person to murder his wife, in violation of Article 134, UCMJ, 10 USC § 934. The military judge sentenced appellant to a dishonorable discharge, confinement for eight years, total forfeitures, and reduction to the lowest enlisted grade. In accordance with a pretrial agreement, the convening authority approved the adjudged sentence but suspended all confinement in excess of five years for a period of ten years. The Court of Criminal Appeals, 2001 WL 536028, affirmed the findings in an unpublished decision. However, it held that appellant’s trial defense counsel was ineffective during the sentencing hearing. Therefore, the court reassessed the sentence and affirmed “only such portion of the sentence as extends to a dishonorable discharge, confinement for seven years, reduction to E-l, and forfeiture of all pay and allowances.” Unpub. op. at 16. This Court granted review of the following issue: WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT’S SENTENCE IN THE ABSENCE OF A COMPLETE RECORD IN EXTENUATION AND MITIGATION OR BY FAILING TO APPLY THE PROPER STANDARD FOR SENTENCE REASSESSMENT TO REMEDY A TRIAL ERROR OF CONSTITUTIONAL MAGNITUDE. SEE UNITED STATES V. BOONE, 49 MJ 187, 195, AND 197-99 (1998). For the reasons set out below, we set aside the sentence and authorize a sentence rehearing. Background During the sentencing hearing, appellant made a lengthy unsworn statement that focused on his mental and emotional condition at the time of the offenses. On April 19, 1989, while he was assigned aboard the battleship USS IOWA, an ordnance explosion in a gun turret 30 feet from his work station killed 47 sailors inside the turret. Appellant’s work area immediately filled with smoke. He ordered the eight sailors under his supervision to don emergency escape breathing devices and to evacuate" }, { "docid": "14920804", "title": "", "text": "enunciated by our superior court in United States v. Doss, 57 M.J. 182, 185 (C.A.A.F.2002) and United States v. Sales, 22 M.J. 305 (C.M.A.1986). For errors of a constitutional magnitude, we must be persuaded beyond a reasonable doubt that our sentence reassessment has rendered the constitutional error harmless. United States v. Boone, 49 M.J. 187, 195 (C.A.A.F.1998). In ruling on the multiplicity issue at trial, the military judge stated his findings were in the alternative and entered for purposes of exigencies of proof. See R.C.M. 907(b)(3)(B) and R.C.M. 307(c)(4), Discussion. He went on to note that he considered the charges multiplicious for sentencing and thus determined the maximum confinement was 10 years—the maximum authorized confinement for involuntary manslaughter (as compared to 7 years for maiming). In sentencing the appellant to a dishonorable discharge, confinement for 6 years, forfeiture of all pay and allowances, and reduction to the grade of E-l, the military judge noted for purposes of appellate review that the court's sentence would have been “exactly the same” for either offense. Consequently, based upon the military judge’s clear statement of intent, we are satisfied beyond a reasonable doubt that the multiplicious charge had no effect on his determination of an appropriate sentence. The approved findings, as conditionally modified, and the sentence are correct in law and fact and no error prejudicial to the substantial rights of the appellant occurred. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.2000). Accordingly, the conditionally approved findings and the approved sentence are AFFIRMED. . At common law, an accused could not be convicted of murder unless the victim's death occurred within a year and a day of the injury. This common law rule was omitted from military practice in 1951 because it was considered \"archaic.” Legal and Legislative Basis, Manual for Courts-Martial, United States, 269 (1951). . For comparison purposes, we note that the MCM does not define or otherwise address the issue of brain death. However, in United States v. Gomez, 15 M.J. 954, 958-62 (A.C.M.R.1983), the Army Court of Military Review adopted a definition" }, { "docid": "18953655", "title": "", "text": "Judge GIERKE delivered the opinion of the Court. Before a military judge sitting as a general court-martial, appellant pleaded guilty to wrongfully using marijuana but not guilty to fraternization, in violation of Articles 112a and 134, Uniform Code of Military Justice, 10 USC §§ 912a and 934, respectively. The military judge found appellant guilty of wrongfully using marijuana, as alleged. The fraternization specification alleged that ap pellant, a second lieutenant, hosted three enlisted airmen at his home, accompanied them to public locations for personal, social reasons, consumed alcohol with them, allowed the airmen to address him by his first name, and did not require them to extend any military courtesies to him. The military judge also found appellant guilty of fraternization, but only for allowing the airmen to address him by his first name. The adjudged and approved sentence provides for a dismissal, reprimand, and forfeiture of $500.00 pay per month for 2 months. The Court of Criminal Appeals set aside appellant’s conviction of fraternization, applying its statutory factfinding powers under Article 66(c), UCMJ, 10 USC § 866(c), and stating, “[W]e are not convinced beyond a reasonable doubt that appellant’s conduct amounted to fraternization.” Unpub. op. at 3. The court then reassessed and affirmed the sentence, reasoning as follows: Reassessing appellant’s sentence in light of only the remaining marijuana use offense, we are convinced it would have been the same. United States v. Peoples, 29 MJ 426 (CMA 1990). The fraternization offense was relatively trivial in comparison to appellant’s drug use with an airman. Unpub. op. at 4. This Court granted review of the following issue: WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FAILING TO ORDER A REHEARING ON SENTENCE AFTER IT DISMISSED THE CHARGE OF FRATERNIZATION. We affirm the decision of Court of Criminal Appeals, for the reasons set out below. The facts on which the court below set aside the conviction of fraternization and reassessed the sentence are summarized in the court’s unpublished opinion, as follows: Appellant was a 25-year-old Air Force Academy graduate serving as a combat missile crew commander at Malmstrom Air Force" }, { "docid": "13045092", "title": "", "text": "Chief Judge CRAWFORD delivered the judgment of the Court. Appellant was charged with assaulting his two-and-a-half-year-old son, Timothy Ellis, Jr. (Timmy), on June 2, 1994, and on June 3, 1994. He was also charged with murdering Timmy on June 4, 1994. Contrary to his pleas, appellant was convicted by officer and enlisted members of involuntary manslaughter and assault upon a child, in violation of Articles 119 and 128, Uniform Code of Military Justice (UCMJ), 10 USC §§ 919 and 928. The convening authority approved the sentence of a bad-conduct discharge, six years’ confinement, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in an opinion that chronicles the facts and evidence. 54 MJ 958 (2001). We granted review of the following issues: I. WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS APPELLANT’S INVOLUNTARY CONFESSION. II. WHETHER THE MILITARY JUDGE ERRED IN FAILING TO DISMISS THE CHARGES OR TO ORDER OTHER APPROPRIATE RELIEF BASED ON THE GOVERNMENT’S DESTRUCTION OF KEY EVIDENCE. We hold that the military judge did not err in failing to suppress the confession, and that any error in failing to take appropriate action because of the destruction of evidence was harmless beyond a reasonable doubt. BACKGROUND Two-and-a-half-year-old Timmy was one of seven children in the home of appellant and his wife. At the time of his death, Timmy weighed 38 pounds and was 35 inches in length. In April, 1994, one month after appellant gained custody over Timmy and his four-year-old sister Teresa from appellant’s ex-wife (and mother of the children), he called Ms. Carmen L. Colon, a case manager for the Family Advocacy Program at the Naval Air Station, Jacksonville, Florida. Appellant told Ms. Colon that he was having problems coping with Timmy’s and Teresa’s impact on the family and indicated he wanted to return them to the custody of the state rather than to his ex-wife. As appellant was undergoing family counseling, no decision was made on his request to return Timmy to the state for care. On June 4, 1994, appellant’s wife brought Timmy," }, { "docid": "12134002", "title": "", "text": "Opinion of the Court WISS, Judge: After a contested trial, a general court-martial of officer and enlisted members convicted appellant of involuntary manslaughter and committing indecent acts with a child under the age of 16 years. See Arts. 119 and 134, Uniform Code of Military Justice, 10 USC §§ 919 and 934, respectively. The members sentenced appellant to a bad-conduct discharge, confine ment for 1 year, and reduction to the lowest enlisted grade. The convening authority approved these results. On appeal, the Court of Military Review concluded that the evidence was insufficient to establish the required criminal intent relating to the indecent acts. 33 MJ-832, 833 (1991). Additionally, that court concluded that “there is insufficient evidence to support a finding of culpable negligence, and thus the manslaughter conviction cannot stand.” In the court’s view, however, the evidence was both legally and factually sufficient “to support a finding of negligent homicide. Art. 134, UCMJ.” Id. at 834. Accordingly, the court affirmed only a finding of negligent homicide and, on reassessment of the sentence “on the basis of the errors noted and the entire record,” a sentence extending only to reduction to the grade of E-5. Id. at 835. On appellant’s petition, this Court agreed to review: “Whether the Army court erred in finding the evidence to be sufficient as a matter of law to support a finding of guilty to negligent homicide in violation of ... Article 134.” On further consideration of the decision below, we agree with one prong of appellant’s multi-faceted attack within this issue: We hold that the evidence of appellant’s negligence — even the simple negligence that is in issue in negligent homicide, see para. 85b(4), Part IV, Manual for Courts-Martial, United States, 1984 — is insufficient as a matter of law to support the finding affirmed below. I The opinion of the Court of Military Review told the truly sad story of the anorexic/bulimic mission that appellant’s son Brad set for himself and the tragic, fatal consequences. Added to this human tragedy for appellant was his own court-martial for alleged negligence in letting his son pursue" } ]

[ { "docid": "21333853", "title": "", "text": "of survivorship in the entire property; that no funds were con tributed by the daughter Ann towards the purchase price and that Robert Zed-dies gratuitously conveyed his interest in said property to his daughter by means of an intermediary. Additionally, it was found that on July 20,1953, the date of the conveyance from Robert Zeddies to his daughter Ann, Robert Zeddies’ total liabilities exceeded his total assets, and that after said gratuitous conveyance, Robert Zeddies failed to retain sufficient assets to satisfy his indebtedness to the United States of America. The court concluded that the 1953 conveyance from Robert Zeddies to his daughter Ann was fraudulent and void as to the United States, and that the government had a right to foreclose federal tax liens that attached to Robert Zeddies’ undivided one-half interest in the property. Appellants are Erna Brand Zeddies and Ann Louise Henderson. They challenge certain findings of the district court as not supported by the evidence and contend that the initial acquisition of the Kenilworth property by Robert Zeddies and Erna Zeddies, taking title in joint tenancy, did not constitute a gift from the wife to her husband, but gave rise to a resulting trust since the purchase money was furnished by the wife and, it is claimed, by the daughter. Further, it is contended that the government had failed to meet its burden of establishing that the 1953 conveyance from Robert Zeddies to his daughter Ann was fraudulent in fact or in law. Assuming that the transaction by which Robert and Erna Zeddies acquired the Kenilworth property was in the nature of a gift from the wife to her husband, the government nevertheless cannot rely on foreclosure of its liens, as in United States v. Trilling, 328 F.2d 699 (7th Cir. 1964), because assessment of liability for income tax was made after the taxpayer, Robert Zeddies, had parted with legal title to the property. Statutory liens under Section 6322, Title 26 U.S.C.A. arise at the time assessment is made. United States v. Speers, 382 U.S. 266, 86 S.Ct. 411, fn. 412, 15 L.Ed.2d 314 (1965). In" } ]

[ { "docid": "14750345", "title": "", "text": "(5th Cir. 1967). Thus it is clear that quiet title actions are intended to be as final and reliable as possible. The government now takes the position that while quiet title suits may be designed to settle all claims, the government’s instant claim was not in existence at the time of the quiet title suit and that the government was not bound to litigate it. We reject this position in order to preserve the integrity of the quiet title action and to give full effect to what Congress must have intended in 28 U.S.C. § 2410. There can be no doubt that the government was fully aware of these transactions in 1969 when the quiet title suit was brought. The Service had been feuding with the Perrys, both in court and out, for several years. The question is whether the government, a creditor of those who transferred land, is required to come in and assert any claim of fraudulent conveyance in any action brought by a third-party transferee to quiet title to the land. In the instant case, where all the necessary facts are known to the government at the time of the quiet title action, we find that it was obligated to assert its claim of a fraudulent conveyance at that time and failure to do so subjects the government to res judicata. Under Alabama law, as this court has recognized, all matters are to be settled in quiet title actions, including matters available for presentation but not presented: . the Alabama state courts would not allow relitigation either of issues raised in the prior suits or of issues which could have been raised in those suits. By the Alabama statutes which control quieting title and determination of claims to land, the Circuit Court decrees “ . . . clear up all doubts or disputes concerning [the land].” Alabama Code, Title 7, §§ 1109, 1116 (Recomp.1958). [emphasis added] Warrior River Coal & Land Co. v. Alabama State Land Co., 1907, 154 Ala. 135, 45 So. 53. See Cheney v. Nathan, 1896, 110 Ala. 254, 20 So. 99. The decrees" }, { "docid": "14750344", "title": "", "text": "about title to land as far as all persons given notice of the suit are concerned. The Alabama Supreme Court has stated: The primary purpose of [the quiet title action] is to enable a party who is in the peaceable possession of land, and who, for this reason, cannot maintain an action at law, to compel a party who claims a right, title, or interest in the land, or who is ever reputed to so claim, to come into a court of equity and propound and show the nature, character, and kind of his title, claim, and demand, and to have it determined, and to have the court to decree and adjudge whether it is good or bad. Wylie v. Lewis, 263 Ala. 522, 83 So.2d 346, 347 (1955). This court has recently recognized this as Alabama law: By the Alabama statutes which control quieting title and determination of claims to land, the Circuit Court decrees “. . . clear up all doubts or disputes concerning [the land].” Anderson v. Moorer, 372 F.2d 747, 751 (5th Cir. 1967). Thus it is clear that quiet title actions are intended to be as final and reliable as possible. The government now takes the position that while quiet title suits may be designed to settle all claims, the government’s instant claim was not in existence at the time of the quiet title suit and that the government was not bound to litigate it. We reject this position in order to preserve the integrity of the quiet title action and to give full effect to what Congress must have intended in 28 U.S.C. § 2410. There can be no doubt that the government was fully aware of these transactions in 1969 when the quiet title suit was brought. The Service had been feuding with the Perrys, both in court and out, for several years. The question is whether the government, a creditor of those who transferred land, is required to come in and assert any claim of fraudulent conveyance in any action brought by a third-party transferee to quiet title to the land. In" }, { "docid": "4494825", "title": "", "text": "authority of the Internal Revenue Service. Lonsdale v. United States, 919 F.2d 1440, 1443 (10th Cir.1990). A taxpayer typically must admit that the assessment is proper to maintain a quiet title action. Schmidt, 913 F.2d at 839; accord Egbert v. United States, 752 F.Supp. 1010 (D.Wyo.1990). Here, the plaintiff is not the taxpayer, but a third-party. Plaintiff concedes the validity of the tax assessments against Defendant Wilson. Plaintiff prays only for declaratory relief to establish that her alleged equitable mortgage takes priority over the three federal tax liens. Therefore, we look to authorities outside the Tenth Circuit to evaluate the non-taxpayer’s position as plaintiff in a 28 U.S.C.A. § 2410(a) action. The Supreme Court has noted that the purpose of 28 U.S.C.A. § 2410(a) was “to lift the bar of sovereign immunity which had theretofore been considered to work a particular injustice on private lienors.” United States v. Brosnan, 363 U.S. 237, 246, 80 S.Ct. 1108, 1114, 4 L.Ed.2d 1192 (1960) (emphasis added). This language affirms that third-party, non-taxpayers comprise the intended beneficiaries of 28 U.S.C.A. § 2410(a). The Fifth Circuit, in particular, has considered the ability of third-party, non-taxpayers to bring quiet title actions. In Morrison, 247 F.2d at 286-87, a seller of real property claimed that he held a vendor’s lien on the property that took priority over federal tax liens placed on the property while in the hands of the taxpayer-purchaser. The government argued that a third-party private lienor could not maintain a 28 U.S.C.A. § 2410(a)(1) quiet title action, but must bring a 28 U.S.C.A. § 2410(a)(2) foreclosure action to assert priority over a federal tax lien. Id. at 289. The Morrison Court rejected this argument, concluding that an action to quiet title encompassed cases where a private lienor seeks “a determination that a tax lien does not exist, has been extinguished, or is inferior in rank.” Id. at 291. The Fifth Circuit reaffirmed the principle that lien priority disputes fell within the meaning of a 28 U.S.C.A. § 2410(a)(1) quiet title action. Estate of Johnson v. United States, 836 F.2d 940, 946 (5th Cir.1988). In" }, { "docid": "14435798", "title": "", "text": "trustee has the exclusive authority to make claims on behalf of the estate and the failure of the trustee to institute proceedings to recover property does not give the creditors the right to institute such proceedings), to support their argument. After the plaintiffs submitted their filings on this issue, the court of appeals decided Hatchett v. United States, 330 F.3d 875 (6th Cir.2003), which reversed the district court on a similar standing issue and held that “[although the trustee has the exclusive right to bring an action for fraudulent conveyance during the pendency of the bankruptcy proceedings, the Bankruptcy Code does not extinguish the right of the Government to bring a state law action for fraudulent conveyance after the debtor receives a discharge in bankruptcy.” Id. at 886. The standing question in this case is governed by Hatchett, which speaks directly to the issue. Here, a bankruptcy discharge was issued and the bankruptcy case terminated following the decision of the court of appeals on August 22, 1995 and the issuance of the mandate. The plaintiffs filed their complaint to quiet title in this case in the Cheboygan County Circuit Court on April 10, 2001. The United States removed this case on May 18, 2001, and filed its counterclaim thereafter. The United States has standing to bring its claims. III. Citizens of the States may bring an action in any appropriate state court or United States district court against the United States to quiet title in land in which the United States claims an interest by virtue of a lien or otherwise. See 28 U.S.C. § 2410. Such actions, when brought in state court, are removable to federal court. See 28 U.S.C. § 1444. The Michigan legislature has established a statutory cause of action to quiet title by Mich. Comp. Laws § 600.2932(1), which states that “[a]ny person, whether he is in possession of the land in question or not, who claims any right in, title to, equitable title to, interest in, or right to possession of land, may bring an action in the circuit courts against any other person who" }, { "docid": "14750340", "title": "", "text": "LEWIS R. MORGAN, Circuit Judge. The Internal Revenue Service brought this action against the appellees to set aside the transfer of certain real property as fraudulent against the government and to impress and foreclose an equitable lien on the property. The District Court for the Northern District of Alabama dismissed the government’s claim as barred by an earlier state court quiet title action under principles of res judi-cata. From that adverse decision, the Internal Revenue Service appeals. I. Appellees-taxpayers, Henry and Annie Mae Perry, were charged by the government with failure to pay a total of approximately $84,000 in federal income tax for various years from 1959 to 1965. At the times that these liabilities accrued, Henry and Annie Mae Perry owned the piece of real property which was subject of the conveyance that the IRS now asserts to be fraudulent. In January, 1967, taxpayers Henry and Annie Mae entered a contract to transfer this real estate to Perrylanes, Inc., a corporation whose sole stockholders were the children of Henry and Annie Mae, in exchange for assumption of outstanding mortgages. When the actual deed delivery came on March 11, 1967, however, the property was transferréd by warranty deed to the Perry children jointly, rather than to the corporation. Between November, 1967, and March, 1968, the IRS assessed deficiencies against the Perrys totaling $84,617,83. Notice of liens were filed by the government in the appropriate county offices on March 15 and June 11, 1968, pursuant to 26 U.S.C. § 6322. In September, 1969, the corporation, Perrylanes, Inc., commenced a suit in the circuit court of Morgan County, Alabama, to reform the deed to show Perry-lanes, not the children, as grantee, and to quiet title. Named defendants were the Perry children, the parties holding mortgages on the property, and the United States government. The United States was properly served with process, both in Alabama and in Washington, as required by federal law. The filed tax liens claimed by the United States were specifically set out in the complaint. The United States failed to make any appearance in this state court action and" }, { "docid": "15236891", "title": "", "text": "BRUNETTI, Circuit Judge: Plaintiff/appellant Earl Winebrenner (“Winebrenner”) filed an action against the United States and Elmer Kletke (“Kletke”), a District Director of the Internal Revenue Service (“IRS”), seeking a quiet title order and the removal of tax liens on their property pursuant to 28 U.S.C. § 2410 and 26 U.S.C. § 7426 and general damages. On July 27, 1988, the district court dismissed the wrongful levy action for failing to file within the limitations period and the claim for general damages. On May 1, 1989, the district court granted the government’s motion for summary judgment on the remaining quiet title action and dismissed the action against Kletke. Winebrenner has appealed. We affirm. FACTS AND PROCEEDINGS The Internal Revenue Service made federal tax assessments against Dudley Steele (“taxpayer”) in 1985 and 1986. Revenue Officer Douglas McDonald (“McDonald”) believed the taxpayer owned certain real property at 1829 Val Verde Lane, Delano, California. The record owners of the property are Winebrenner and his wife, Emo-gene Winebrenner. In May, July, and August, 1986, the IRS recorded Nominee Notices of Federal Tax liens for the taxpayer’s unpaid federal tax liabilities specifying the Delano property and naming Earl and Emogene Winebrenner as nominees of the taxpayer. On March 12, 1987, McDonald served the taxpayer, at the Delano residence, with copies of a notice of levy and a notice of seizure. The taxpayer stated, in a declaration filed with Winebrenner’s opposition to the government’s summary judgment motion, that he accumulated the grant deed and various other documents and presented them to Revenue Officer McDonald explaining that the Winebrenners were the true owners and the title holders of 1829 Val Verde Lane and had been since 1971. On April 15, 1987, the Winebrenners were served with copies of the notice of levy and seizure. Winebrenner states on appeal that “he denied he and his wife were nominees of [the taxpayer] with respect to the property, and asserted that they were the owners of said property and had a right to its possession.” On January 24,1988, Winebrenner filed a suit against the United States and Kletke to quiet title" }, { "docid": "14750349", "title": "", "text": "The Court of Appeals held that the government, by not seeking removal, had chosen to litigate the matter in state court and that the district court action should be stayed pending resolution in the state courts. These cases suggest to this court that the quiet title action indeed covers the resolution of fraudulent conveyance claims and that the government has seemingly recognized this principle by asserting its fraud claims in those cases. Therefore, it appears to this court that the government has no viable argument that res judicata is improper because the issues involved in quiet title and fraudulent conveyances are so different. It seems to us that the quiet title action is an overall umbrella type proceeding which includes, as a constituent part necessary to preserve the integrity of the quiet title action, the resolution of available fraudulent conveyance cláims. The government’s highly technical second claim is an assertion that the earlier proceeding cannot bind it because notice of the lien claimed was not alleged with specificity as required by 28 U.S.C. § 2410(b). In the quiet title suit, plaintiff Perrylanes set out the name of the taxpayers, the land involved, the identity of the local IRS office handling the Perrys’ problems and the location and page of the lien notices which had been filed by the government. In short, the plaintiff gave just about all the information which it could. The government maintains that to comply with the statute, the plaintiff in a quiet title suit, to avoid a later fraudulent conveyance action by the government, would have to allege that the United States might claim the transaction was fraudulent and specifically give notice, not just as to the land transaction, and taxpayers, but also hypothesize what the government might later wish to assert. The government admits that this would never be done if it is indeed possible to describe the contingency. Furthermore, the government argues that even if such an allegation were made, it would seek dismissal on that issue arguing that there could never be a fraudulent conveyance issue until the government filed such a suit" }, { "docid": "15236892", "title": "", "text": "Federal Tax liens for the taxpayer’s unpaid federal tax liabilities specifying the Delano property and naming Earl and Emogene Winebrenner as nominees of the taxpayer. On March 12, 1987, McDonald served the taxpayer, at the Delano residence, with copies of a notice of levy and a notice of seizure. The taxpayer stated, in a declaration filed with Winebrenner’s opposition to the government’s summary judgment motion, that he accumulated the grant deed and various other documents and presented them to Revenue Officer McDonald explaining that the Winebrenners were the true owners and the title holders of 1829 Val Verde Lane and had been since 1971. On April 15, 1987, the Winebrenners were served with copies of the notice of levy and seizure. Winebrenner states on appeal that “he denied he and his wife were nominees of [the taxpayer] with respect to the property, and asserted that they were the owners of said property and had a right to its possession.” On January 24,1988, Winebrenner filed a suit against the United States and Kletke to quiet title of the Delano property pursuant to 28 U.S.C. § 2410 and seeking to remove the lien under 26 U.S.C. § 7426. The suit also sought $20,000 in general damages. On July 27, 1988, the district court granted the government’s motion to dismiss the wrongful levy action under 26 U.S.C. § 7426 and the claim for general damages. The government’s motion was denied as to the quiet title action. On March 31, 1989, the government filed an amended motion to dismiss the remaining claim to quiet title or in the alternative for summary judgment. The district court granted the motion on June 1, 1989. This appeal followed. ANALYSIS I. The district court granted the government’s motion for summary judgment on the question whether the district court lacked jurisdiction over Winebrenner’s quiet title action because his exclusive remedy is a wrongful levy action under section 7426 of the Internal Revenue Code (“Section 7426”). We review de novo the district court’s grant of summary judgment. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989)," }, { "docid": "23352567", "title": "", "text": "immunity in cases where a taxpayer whose property has been seized, as opposed to a third party who claims an interest in that property, brings suit against the United States. In addition, it contends that the district court correctly determined that both the Anti-Injunction and Declaratory Judgment Acts prohibit this suit. We turn first to the question of whether, based on the allegations contained in the complaint, this suit may be treated as an action to quiet title to property on which the United States has a lien. We think that this question must be answered in the affirmative. At the time of the proceedings below, title to the license remained in plaintiff’s name on the records of the Pennsylvania Liquor Control Board. In addition, neither the IRS nor Saltz had obtained physical possession of the license document as it remained for safekeeping in the Liquor Control Board’s offices in Harrisburg. Certainly, both the tax lien asserted by the government and the sale of the license to Saltz, if indeed invalid, would cast clouds on the title to the license. See Little River Farms, Inc. v. United States, 328 F.Supp. 476 (N.D. Ga.1971). An action to quiet title is the proper method of removing such clouds on title. United States v. Coson, supra at 457. Our conclusion in this regard is not undermined by the fact that the license is personal rather than real property. Although suits to quiet title have traditionally involved real property, this particular action is governed by federal rather than state law. And, the relevant federal statute, § 2410, contemplates, by its very terms, actions to quiet title to personalty on which the United States has or claims a lien. Little River Farms, Inc. v. United States, supra at 479; Yannicelli v. Nash, 354 F.Supp. 143 (D.N.J.1973). Having determined that this suit may be properly viewed as an action to quiet title, we turn to the crucial issue of whether a taxpayer whose property is subjected to a federal tax lien may bring suit against the United States under § 2410(a)(1). Plaintiff concedes that an action" }, { "docid": "14750356", "title": "", "text": "This conclusion as to the government’s usual practice is reinforced by the government attorney’s statement to the district court. See footnote 1 supra. . (b) The complaint or pleading shall set forth with particularity the nature of the interest or lien of the United States. In actions or suits involving liens arising under the internal revenue laws, the complaint or pleading shall include the name and address of the taxpayer whose liability created the lien and, if a notice of the tax lien was filed, the identity of the internal revenue office which filed the notice, and the date and place such notice of lien was filed. In actions in the State courts service upon the United States shall be made by serving the process of the court with a copy of the complaint upon the United States attorney for the district in which the action is brought or upon an assistant United States attorney or clerical employee designated by the United States attorney in writing filed with the clerk of the court in which the action is brought and by sending copies of the process and complaint, by registered mail, or by certified mail, to the Attorney General of the United States at Washington, District of Columbia. In such actions the United States may appear and answer, plead or demur within sixty days after such service or such further time as the court may allow. . We note that the government argues that no real harm to the integrity of the quiet title action can come in these cases since it concedes that any tona fide purchaser taking from the one who obtains the bill to quiet title before the government files a fraudulent conveyance action will be protected. This overlooks the very real possibility that the transferee who seeks a bill to quiet title may be doing so as a prelude to making substantial investment and/or improvements in the property in reliance on that bill. Once such a party had made substantial investments he might be tempted to settle even an essentially groundless fraudulent conveyance claim to protect" }, { "docid": "14750352", "title": "", "text": "“fool” the government. Congress wanted to ensure that “hidden” liens were not removed without notice to the government; it never indicated that the government could not be required to litigate all claims growing out of the specific liens, property, and taxpayers clearly identified to the Service. Congress sought to provide, through the basic enactment of § 2410, a method to force the government to litigate tax liens to enable persons, both taxpayers and third parties, to clear title and have uncertainty conclusively removed so they could take certain actions without fear of later challenge. To allow the government to always hold back one possible defect will never fulfill the goal of conclusively settling these disputes. It is well-known that the administration process, even in the IRS, is often slow and unresponsive. To offset this and to prevent the obvious harm which can come from administrative harassment, Congress provided a method to settle the issue. We do not feel that any undue burden is put on the government by requiring it to assert any fraudulent conveyance claim in a quiet title action. First, it is given notice that a transfer has occurred, the terms of the transfer, the identities of the parties involved and the nature of the tax difficulties involved. The government has an absolute right of removal to federal court. The complaint itself and the information it contains is enough to give the IRS ample information for deciding whether a fraudulent conveyance claim may lie. The values sought to be established in the quiet title action sufficiently outweigh any administrative convenience since in reality the only chance of harm to the government comes from negligence or inattention on the government’s part. The notice given herein was all that realistically could be given and was, under the circumstances, sufficient to comply with statutory requirements. Furthermore, our reading of 28 U.S.C. § 2410 does not lead us to believe that Congress intended the IRS to escape an adjudication which would be an adequate bar to a private litigant. Here, as we have already discussed, we feel the courts of Alabama would" }, { "docid": "23352566", "title": "", "text": "immunity by the United States. Quinn v. Hook, 231 F.Supp. 718 (E.D. Pa. 1964), aff’d 341 F.2d 920 (3d Cir. 1965). However, plaintiff argues that the required waiver is found in § 2410(a)(1) which provides that the United States may be named as a party in any civil action “to quiet title to . real or personal property on which the United States has or claims a mortgage or other lien.” Finally, plaintiff maintains that neither the Anti-Injunction Act nor the Declaratory Judgement Act operates to deprive a federal court of its jurisdiction under §§ 1340 and 2410 when the taxpayer involved merely challenges the validity of a tax lien for failure to comply with statutory requirements and refrains from contesting the merits of the underlying tax assessment itself. The government agrees that § 1340 is a possible jurisdictional basis for this action. However, it maintains, and the district court found, that even assuming that this suit may be treated as an action to quiet title, § 2410(a)(1) does not lift the bar of sovereign immunity in cases where a taxpayer whose property has been seized, as opposed to a third party who claims an interest in that property, brings suit against the United States. In addition, it contends that the district court correctly determined that both the Anti-Injunction and Declaratory Judgment Acts prohibit this suit. We turn first to the question of whether, based on the allegations contained in the complaint, this suit may be treated as an action to quiet title to property on which the United States has a lien. We think that this question must be answered in the affirmative. At the time of the proceedings below, title to the license remained in plaintiff’s name on the records of the Pennsylvania Liquor Control Board. In addition, neither the IRS nor Saltz had obtained physical possession of the license document as it remained for safekeeping in the Liquor Control Board’s offices in Harrisburg. Certainly, both the tax lien asserted by the government and the sale of the license to Saltz, if indeed invalid, would cast clouds on" }, { "docid": "14750348", "title": "", "text": "would be of prime importance in achieving the end for which the quiet title suit exists. We note that in other cases where, under similar facts, the government has been joined in a quiet title action, the Service has been quick to come in and assert its fraudulent conveyance claim. In Zeddies v. United States, 7th Cir., 1966, 357 F.2d 897, the taxpayer had conveyed property to his daughter prior to the recording by the government of liens against the taxpayer. After the daughter brought a state court quiet title action, the government both filed an action alleging a fraudulent conveyance in federal court and had the state action removed. These cases were consolidated in federal court. In Smith v. United States, 6th Cir., 1958, 254 F.2d 865, the taxpayer husband conveyed property to his wife two years before a tax lien was filed. The United States filed an action to perfect its lien against the wife in district court. Prior to this filing, however, the wife had instituted quiet title proceedings in state court. The Court of Appeals held that the government, by not seeking removal, had chosen to litigate the matter in state court and that the district court action should be stayed pending resolution in the state courts. These cases suggest to this court that the quiet title action indeed covers the resolution of fraudulent conveyance claims and that the government has seemingly recognized this principle by asserting its fraud claims in those cases. Therefore, it appears to this court that the government has no viable argument that res judicata is improper because the issues involved in quiet title and fraudulent conveyances are so different. It seems to us that the quiet title action is an overall umbrella type proceeding which includes, as a constituent part necessary to preserve the integrity of the quiet title action, the resolution of available fraudulent conveyance cláims. The government’s highly technical second claim is an assertion that the earlier proceeding cannot bind it because notice of the lien claimed was not alleged with specificity as required by 28 U.S.C. § 2410(b)." }, { "docid": "14750347", "title": "", "text": "are also “. . . binding and conclusive upon all the parties . ” in the suit. Alabama Code, Title 7, §§ 1112, 1126 (Reeomp.1958). The Alabama Supreme Court has, further, embraced for all cases (not merely for quiet title actions) the federal rule that “. . . res judicata must be pleaded as a bar, not only as respects matters actually presented to sustain or defeat the right asserted in the earlier proceeding, ‘but also as respects any other available matter which might have been presented to that end.’ ” 25 So.2d 515. [Citations omitted.] Plaintiff has asserted no legal basis for lifting the bar of res judicata. That bar is neither sinister nor harsh; often it is salutary and, occasionally, merciful. Anderson v. Moor- er, 372 F.2d 747, 751-752 (5th Cir. 1967). Here it is very clear that any claim of the United States would go to the heart of a quiet title action. The claim of fraudulent conveyance, known and available to the government at the time of the quiet title suit, would be of prime importance in achieving the end for which the quiet title suit exists. We note that in other cases where, under similar facts, the government has been joined in a quiet title action, the Service has been quick to come in and assert its fraudulent conveyance claim. In Zeddies v. United States, 7th Cir., 1966, 357 F.2d 897, the taxpayer had conveyed property to his daughter prior to the recording by the government of liens against the taxpayer. After the daughter brought a state court quiet title action, the government both filed an action alleging a fraudulent conveyance in federal court and had the state action removed. These cases were consolidated in federal court. In Smith v. United States, 6th Cir., 1958, 254 F.2d 865, the taxpayer husband conveyed property to his wife two years before a tax lien was filed. The United States filed an action to perfect its lien against the wife in district court. Prior to this filing, however, the wife had instituted quiet title proceedings in state court." }, { "docid": "14750343", "title": "", "text": "the instant fraudulent conveyance action. Rather, the government asserts that the lien involved herein is a totally new equitable lien which did not, and indeed could not, come into existence until the instant suit was brought in 1971. At the outset, it is necessary to understand the basis for the original suit to quiet title. Congress has expressly granted to appropriate state and federal courts the power to entertain suits of this type in 28 U.S.C. § 2410 One of the purposes of this statute was “to provide a method to clear real estate titles of questionable or valueless liens.” It was in response to the recognized need for a way to force disputes over government tax liens to resolution, rather than leaving the United States in complete control of the timing. It is against this background that the effect of the quiet title proceeding attacked herein must be resolved. Both the Alabama courts and this court construing Alabama law have rec ognized that quiet title actions in Alabama are designed to end all doubts about title to land as far as all persons given notice of the suit are concerned. The Alabama Supreme Court has stated: The primary purpose of [the quiet title action] is to enable a party who is in the peaceable possession of land, and who, for this reason, cannot maintain an action at law, to compel a party who claims a right, title, or interest in the land, or who is ever reputed to so claim, to come into a court of equity and propound and show the nature, character, and kind of his title, claim, and demand, and to have it determined, and to have the court to decree and adjudge whether it is good or bad. Wylie v. Lewis, 263 Ala. 522, 83 So.2d 346, 347 (1955). This court has recently recognized this as Alabama law: By the Alabama statutes which control quieting title and determination of claims to land, the Circuit Court decrees “. . . clear up all doubts or disputes concerning [the land].” Anderson v. Moorer, 372 F.2d 747, 751" }, { "docid": "14750346", "title": "", "text": "the instant case, where all the necessary facts are known to the government at the time of the quiet title action, we find that it was obligated to assert its claim of a fraudulent conveyance at that time and failure to do so subjects the government to res judicata. Under Alabama law, as this court has recognized, all matters are to be settled in quiet title actions, including matters available for presentation but not presented: . the Alabama state courts would not allow relitigation either of issues raised in the prior suits or of issues which could have been raised in those suits. By the Alabama statutes which control quieting title and determination of claims to land, the Circuit Court decrees “ . . . clear up all doubts or disputes concerning [the land].” Alabama Code, Title 7, §§ 1109, 1116 (Recomp.1958). [emphasis added] Warrior River Coal & Land Co. v. Alabama State Land Co., 1907, 154 Ala. 135, 45 So. 53. See Cheney v. Nathan, 1896, 110 Ala. 254, 20 So. 99. The decrees are also “. . . binding and conclusive upon all the parties . ” in the suit. Alabama Code, Title 7, §§ 1112, 1126 (Reeomp.1958). The Alabama Supreme Court has, further, embraced for all cases (not merely for quiet title actions) the federal rule that “. . . res judicata must be pleaded as a bar, not only as respects matters actually presented to sustain or defeat the right asserted in the earlier proceeding, ‘but also as respects any other available matter which might have been presented to that end.’ ” 25 So.2d 515. [Citations omitted.] Plaintiff has asserted no legal basis for lifting the bar of res judicata. That bar is neither sinister nor harsh; often it is salutary and, occasionally, merciful. Anderson v. Moor- er, 372 F.2d 747, 751-752 (5th Cir. 1967). Here it is very clear that any claim of the United States would go to the heart of a quiet title action. The claim of fraudulent conveyance, known and available to the government at the time of the quiet title suit," }, { "docid": "14371906", "title": "", "text": "than cash. Suppose the government had seized an heirloom of Harrell’s and proposed to sell it in order to collect taxes that the government claims he owed. Even if Harrell admitted that he owed the taxes, he could challenge by way of a quiet-title action the government’s claim of a lien in the heirloom, assuming the lien was for some reason not authorized by law. We think the principle should be the same when the form the property takes is a vested right to cash wages. Farr v. United States, supra, 990 F.2d at 453; Hughes v. United States, supra, 953 F.2d at 538. The anti-injunction act is no obstacle. It bars a suit challenging the collection or assessment of taxes, but not a suit to remove a lien without questioning the entitlement of the government to collect the taxes in some other way. Robinson v. United States, 920 F.2d 1157, 1159-61 (3d Cir.1990); In re Estate of Johnson, 836 F.2d 940, 948 (5th Cir.1988). If a taxpayer tries to defeat the government’s efforts at assessment or collection by filing groundless suits to prevent the government from levying on his assets to collect the taxes that he owes, the government’s remedies include dismissal, sanctions, an injunction against vexatious litigation — or, as we shall see, recharacterization of the taxpayer’s conduct as a de facto effort to enjoin the collection of taxes, thus bringing the anti-injunction act into play. All the quiet-title act does is waive sovereign immunity. It does not authorize quiet-title suits; it does not confer federal jurisdiction over them; it merely clears away the obstacle that sovereign immunity would otherwise place in the path of such a suit. Harrell has no problem, however, finding a basis for federal jurisdiction for his quiet-title suit; it is 28 U.S.C. § 1340, which bestows on the federal district courts original jurisdiction of any civil action arising under the internal revenue laws. Harrell’s claim is that the levy on his wages violated the provisions authorizing federal tax liens; that claim arises under the Internal Revenue Code and is therefore within the jurisdiction" }, { "docid": "14750342", "title": "", "text": "never requested, as was its right, that the action be removed to federal district court. On September 15, 1970, a decree pro confesso was entered against the government, ostensibly freeing the property of all government claims. On April 7, 1971, the IRS commenced this action to declare the transfer to Perrylanes to be fraudulent against the government and, void. The district court held that action was barred by res judicata. II. In this appeal, the government alleges two grounds for reversal which are very closely connected. Both arguments rest on the acceptance of the government’s view of the nature and origin of the lien it now seeks to enforce. The first argument is substantive. The second is procedural and highly technical. The government argues that the notice of liens filed March and June, 1968, were against the taxpayers and not the property, and so at the time of the judgment of the Morgan County court the government had no claim on the property. The government maintains that these recorded liens are not the subject of the instant fraudulent conveyance action. Rather, the government asserts that the lien involved herein is a totally new equitable lien which did not, and indeed could not, come into existence until the instant suit was brought in 1971. At the outset, it is necessary to understand the basis for the original suit to quiet title. Congress has expressly granted to appropriate state and federal courts the power to entertain suits of this type in 28 U.S.C. § 2410 One of the purposes of this statute was “to provide a method to clear real estate titles of questionable or valueless liens.” It was in response to the recognized need for a way to force disputes over government tax liens to resolution, rather than leaving the United States in complete control of the timing. It is against this background that the effect of the quiet title proceeding attacked herein must be resolved. Both the Alabama courts and this court construing Alabama law have rec ognized that quiet title actions in Alabama are designed to end all doubts" }, { "docid": "5552987", "title": "", "text": "with approval this Court’s opinion in Thermo-Stitch, Inc. v. Chemi-Cord Processing Corp., 294 F.2d 486 (5th Cir. 1961): “It is therefore immaterial that the case at bar contains a stronger basis for equitable relief than was present in Beacon Theatres [Beacon Theatres v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988], It would make no difference if the equitable cause clearly outweighed the legal cause so that the basic issue of the case taken as a whole is equitable. As long as any legal cause is involved the jury rights it creates control. This is the teaching of Beacon Theatres, as we construe it.” 369 U.S. at 473 n.8, 82 S.Ct. at 897, quoting 294 F.2d at 491 (emphasis added). Duncan may have had a right to a jury trial for his quiet title suit at the state level if he requested it. See Ga.Code Title 37 § 1416. However, since such a request was not made, Fed.R.Civ.P. 81(c) does not give appellant the right to a jury trial. Under Rule 81(c), appellant was required to file a demand for jury trial within ten days after the petition for removal was filed because under state law a demand was required and had not been made prior to removal. Furthermore, if the quiet title suit was improperly brought and the state court had no jurisdiction, it is clear that the federal district court had jurisdiction of the government’s counterclaim to set aside the fraudulent conveyance and foreclose the government’s tax liens. The government’s counterclaim is also equitable in nature and Duncan was therefore not entitled to a trial by jury. We are convinced that whether or not the quiet title suit was proper, the federal district court had jurisdiction and, in any event, appellant was not entitled to a jury trial under Fed.R.Civ.P. 81(c) or under McMahan. III. FRAUDULENT CONVEYANCES Appellant argues that there was insufficient evidence from which the federal district court could have concluded that the conveyances from Hill to Duncan were fraudulent. Georgia law provides creditors with the right to set aside fraudulent transfers. See Ga.Code" }, { "docid": "14750350", "title": "", "text": "In the quiet title suit, plaintiff Perrylanes set out the name of the taxpayers, the land involved, the identity of the local IRS office handling the Perrys’ problems and the location and page of the lien notices which had been filed by the government. In short, the plaintiff gave just about all the information which it could. The government maintains that to comply with the statute, the plaintiff in a quiet title suit, to avoid a later fraudulent conveyance action by the government, would have to allege that the United States might claim the transaction was fraudulent and specifically give notice, not just as to the land transaction, and taxpayers, but also hypothesize what the government might later wish to assert. The government admits that this would never be done if it is indeed possible to describe the contingency. Furthermore, the government argues that even if such an allegation were made, it would seek dismissal on that issue arguing that there could never be a fraudulent conveyance issue until the government filed such a suit at its own pleasure. In short, the government says that there is no way for any party by any action to avoid the possibility that the government will later bring suit claiming a fraudulent conveyance. We do not feel that this position should be sustained. To allow this interpretation to be given the statute would infringe the intent of Congress and prohibit full usage of a valuable tool — the quiet title action — for conclusively settling all claims to land. The specificity provisions are in the statute to ensure that the government is given full notice of what claims the parties are talking about and what land and parties are involved. Here the taxpayers whose problems gave rise to the assessments were identified, the fact of a. transaction involving a specific piece of land and the identity of the transferee were disclosed. The government had specific notice to come in and litigate about this piece of property. There could be no mistake about the material issues; there was no bad faith or attempt to" } ]

[ { "docid": "22059047", "title": "", "text": "as a general matter federal courts incorporate § 1983 law into Bivens actions. See Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 433 n. 5, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993). In addition, to the extent that federal judicial officers are not immune from suits for injunctive relief, their liability is based on § 1983 law as set out in Pulliam. As a result, even assuming arguendo that Pul-liam does apply to federal judges, the 1996 amendment to § 1983 would limit the relief available to plaintiffs to declaratory relief. As discussed below with regard to the defendant prosecutors, plaintiffs are not entitled to declaratory relief as there is an adequate remedy at law. Therefore, for this reason as well, the district court properly dismissed plaintiffs’ claims against the defendant judges. D. Defendant Prosecutors Prosecutors are also entitled to absolute immunity from damages for acts or omissions associated with the judicial process, in particular, those taken in initiating a prosecution and in presenting the government’s case. See Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir.1999); Fullman v. Graddick, 739 F.2d 553, 558-59 (11th Cir.1984). Our predecessor court has held that prosecutors are not immune from claims for injunctive relief, however. See Tarter v. Hury, 646 F.2d 1010, 1012 (5th Cir.1981) (“[Pjrosecutors do not enjoy absolute immunity from [declaratory and in-junctive relief] claims.”). Further, we have found no case distinguishing between state and federal prosecutors in this regard as has been done between state and federal judges. However, we do not resolve this question because the district court’s dismissal of plaintiffs’ claims against the defendant prosecutors may so clearly be upheld on an alternate ground. In order to receive declaratory or injunctive relief, plaintiffs must establish that there was a violation, that there is a serious risk of continuing irreparable injury if the relief is not granted, and the absence of an adequate remedy at law. See Newman v. Alabama, 683 F.2d 1312 (11th Cir.1982). As aptly noted by the Ninth Circuit in Mullís," } ]

[ { "docid": "17282625", "title": "", "text": "absolutely insulates judges from declaratory or injunctive relief with respect to their judicial acts.”). In 1996, the Congress, however, effectively reversed the Courts’ rulings with regard to injunctive relief with the enactment of the Federal Courts Improvement Act of 1996, Pub.L. No. 104-317, 110 Stat. 3847 (1996) (amending 42 U.S.C. § 1983). As amended, § 1983 now provides that “in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983. Thus, the doctrine of absolute judicial immunity now extends to cover suits against judges where the plaintiff seeks not only monetary relief, but injunctive relief as well, unless preceded by a declaration, or by a showing that such declaratory relief is unavailable. See, e.g., Jacobs v. Mostow, 271 Fed.Appx. 85, 88 (2d Cir.2008) (unpublished opinion) (affirming dismissal of plaintiff’s claims for prospective injunctive relief under Rule 12(b)(6) where complaint failed to allege “a violation of a prior declaratory decree”); Montero v. Travis, 171 F.3d 757, 761 (2d Cir.1999) (“Montero ... alleges neither the violation of a declaratory decree, nor the unavailability of declaratory relief. Montero’s claim for injunctive relief is therefore barred under § 1983.”). Here, the practice by the Justices of adjudicating cases under Town rental laws is unquestionably judicial in nature. Thus, to the extent Plaintiffs’ declaratory claims are retrospective in nature in that they seek a declaration that the Justices’ past enforcement of the Town’s rental law has violated the Constitution, they are barred by the doctrine of absolute immunity. See, e.g., LeDuc v. Tilley, 2005 WL 1475334, at *7 (D.Conn. June 22, 2005) (“Declaratory relief against a judge for actions taken within his or her judicial capacity is ordinarily available by appealing the judge’s order.”). To the extent Plaintiffs seek prospective declaratory relief, viz. a declaration that the Justices’ enforcement of the Town rental law constitutes a continuing violation of the Constitution, Plaintiffs’ claims are not barred by judicial immunity. See Francis v. Pellegrino, 224 Fed.Appx. 107," }, { "docid": "20523507", "title": "", "text": "bar rules, promulgated by state courts in non-judicial proceedings, which do not require review of a final state court judgment in a particular case. They do not have jurisdiction, however, over challenges to state court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court’s action was unconstitutional. Review of those decisions may be had only in this Court. 28 U.S.C. § 1257. Feldman, 460 U.S. at 485-86, 103 S.Ct. 1303 (citations omitted). It should be apparent that statutes — in this case, 42 U.S.C. § 1983 — are like Feldman’s state bar rules. But, like the Third Circuit Court of Appeals in another case, the Court “believe[s] that [Mr. Mikhail] is not seeking declaratory relief in the true legal sense, however. See Fed.R.Civ.P. 57; 28 U.S.C. § 2201. [Although Mr. Mikhail] asks that the ... Court ‘declare’ that his constitutional rights were violated[, djeclaratory judgment is inappropriate solely to adjudicate past conduct.” Corliss v. O’Brien, 200 Fed.Appx. 80, 84 (3d Cir.2006) (per curiam) (emphasis added); see also, e.g., Burrell v. Ross, No. 12-2504, 2013 WL 3097320, at *5 (M.D.Pa. June 18, 2013) (“These claims simply ask the court to declare past action unconstitutional retroactively, which basically amounts to declaring one party liable to another, so declaratory judgment is not appropriate here.”). Mr. Mikhail is really only asking for an as-applied ruling, and that is a request that Rooker-Feldman forbids the Court from even considering. See, e.g., Kwasnik v. LeBlon, 228 Fed.Appx. 238, 242 (3d Cir.2007) (per curiam) (“The Amended Complaint requests review of the constitutionality of N.J.S.A. § 9:2-4(c).... As important, the Amended Complaint includes new requests ... to prohibit enforcement of N.J.S.A. § 9:2-4(c) in divorce proceedings, and to stay his family court proceedings in state court. As to these requests for relief and their accompanying allegations, the District Court lacks subject matter jurisdiction under Rooker-Feldman as clarified by Exxon Mobil.”); Wagner v. Dist. Att’y, No. 11-762, 2012 WL 2090093, at *5 (W.D.Pa. R & R May 21, 2012) (“Plaintiff is not challenging through this civil rights action the constitutionality" }, { "docid": "20523685", "title": "", "text": "are alleged to have been done maliciously or corruptly. A distinction as to their liability made between acts done by them in excess of their jurisdiction and acts done by them in the clear absence of all jurisdiction over the subject-matter.\" (emphasis added)). . Examples of dismissals of injunctive relief claims on the grounds of judicial immunity abound. See, e.g., Clark v. Punshon, 516 Fed.Appx. 97, 99 (3d Cir.2013) (per curiam) (“With respect to Clark’s claims against Judge Capuzzi, we agree with the District Court that absolute judicial immunity precludes Clark’s claims for injunctive relief.”); Bukovinsky v. Pennsylvania, 455 Fed.Appx. 163, 165-66 (3d Cir.2011) (per curiam) (\"[A] claim for injunctive relief against the judicial officers would be barred by the language of § 1983, and Bukovinsky has not alleged that a declaratory decree was violated or that declaratory relief was unavailable.”); Chadwick v. Court of Common Pleas, 244 Fed.Appx. 451, 455 (3d Cir.2007) (per curiam) (\"Chadwick does not argue that the statutory exceptions set out in this provision should apply, and we agree with the District Courts determination that the challenged actions of the judges of the Court of Common Pleas fell within the range of judicial action.”); Robinson v. Smyth, 258 Fed.Appx. 469, 470 (3d Cir.2007) (per curiam) (\"Robinson’s claims for injunctive relief against Judge Smyth were also barred because Robinson did not allege that the judge violated a declaratory decree or that declaratory relief was not available in his case.”); Catanzaro v. Cottone., 228 Fed.Appx. 164, 167 (3d Cir.2007) (per curiam) (\"Under the 1996 amendments to § 1983, injunctive relief against judicial officers for acts or omissions taken in the officer's judicial capacity ‘shall not be granted’ unless a declaratory decree was violated or declaratory relief was unavailable. See 42 U.S.C. § 1983.... Catanzaro’s Complaint-is devoid of any allegation that declaratory relief is unavailable or that a declaratory decree has been denied, and, thus, his claim for injunctive relief is barred.” (citation omitted)); Shallow v. Rogers, 201 Fed.Appx. 901, 904 n. 4 (3d Cir.2006) (per curiam) (\"To the extent that Shallow sought injunctive and declaratory relief against Judge" }, { "docid": "23533674", "title": "", "text": "are also immune from suit because they are state entities, not individual state officers. However, the Eleventh Amendment does not bar suit against the Director of the California Department of Fish & Game, who has direct authority over and principal responsibility for enforcing Proposition 4. The fact that only declaratory, rather than injunctive, relief may be available does not alter this conclusion. Under the principle of Ex Parte Young, private individuals may sue state officials for prospective relief against ongoing violations of federal law. See Ex Parte Young, 209 U.S. at 159-60, 28 S.Ct. 441. As subsequent cases have pointed out, Ex Parte Young itself was decided well before declaratory relief was available in the federal courts. See Steffel v. Thompson, 415 U.S. 452, 466-67, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (explaining that the 1934 Declaratory Judgment Act was passed “to provide a milder alternative to the injunction remedy” (citation omitted)). Nevertheless, we have long held that the Eleventh Amendment does not generally bar declaratory judgment actions against state officers. See, e.g., Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041 (9th Cir.2000) (applying Ex Parte Young exception to declaratory relief against state board of equalization); Los Angeles Bar Assoc. v. Eu, 979 F.2d 697, 704 (9th Cir.1992) (holding that “the Eleventh Amendment presents no barrier to the Bar Association’s request for declaratory relief against an alleged ongoing violation of federal law”); see also Balgowan v. New Jersey, 115 F.3d 214 (3rd Cir.1997) (finding jurisdiction to hear FSLA claim for declaratory relief against state commissioner under Ex Parte Young exception). The only question is whether the declaratory action is seeking prospective, rather than retrospective, relief. See, e.g., Eu, 979 F.2d at 704 (“[T]he Eleventh Amendment does not bar action seeking only prospective declaratory or injunctive relief against state officers in their official capacities, (emphasis added)). While a declaratory judgment is generally prospective relief, in some situations it has been recognized as retrospective. F.E.R. v. Valdez, 58 F.3d 1530, 1533 (10th Cir.1995). In F.E.R., this Court found that the plaintiffs’ claim for an injunction was mooted by a" }, { "docid": "17282627", "title": "", "text": "108 (2d Cir.2007) (unpublished opinion) (finding that doctrine of judicial immunity not a bar to prospective declaratory relief.); B.D.S. v. Southold Union Free Sch. Dist., 2009 WL 1875942, at *20 (E.D.N.Y. June 24, 2009) (“[T]he doctrine of absolute immunity does not extend to claims for declaratory relief based upon continuing violations of federal law.”); LeDuc, 2005 WL 1475334, at *7 (“The doctrine of judicial immunity does not shield judges from claims for prospective declaratory relief.”). The question of whether Plaintiffs’ claims for injunctive relief are barred by the amended version of § 1983 is more complicated. As noted above, such claims are barred unless Plaintiffs allege that “a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983. Plaintiffs cannot allege that declaratory relief is unavailable because Plaintiffs can, and indeed have, pursued a claim seeking a declaration that the Town rental law is unconstitutional. Plaintiffs argue, however, that they have plausibly alleged that “a declaratory decree was violated.” In this regard, Plaintiffs’ First Amended Complaint relies upon a declaration issued by the Second Department in Anthony v. Town of N. Hempstead, 2 A.D.3d 378, 767 N.Y.S.2d 814 (2d Dep’t 2003). In Anthony, the Second Department held that §§ 2 — 104(B)(3) and 2-113 of the Town of North Hempstead Code (the “Code”) were unconstitutional. Section 2-103 of the Code, which was not declared unconstitutional, prohibits an owner of a dwelling unit from renting such unit without a permit. Section 2-104(B)(3) mandated that the permit application contain “[t]he names, ages and relationships, if any, to the owner of the premises of each person presently residing in or occupying such premises intended for rental occupancy.” 767 N.Y.S.2d at 815 (quoting Code). Section 2-113 required the owner of the dwelling unit to file a new rental registration form whenever a dwelling unit or portion thereof became vacant and the owner intended to rent the unit to a new tenant. Id. The Second Department held that “Sections 2-104(B)(3) and 2-113 of the Code are unconstitutional because they limit the tenants’ right to privacy and are not narrowly tailored to achieve" }, { "docid": "17282626", "title": "", "text": "prior declaratory decree”); Montero v. Travis, 171 F.3d 757, 761 (2d Cir.1999) (“Montero ... alleges neither the violation of a declaratory decree, nor the unavailability of declaratory relief. Montero’s claim for injunctive relief is therefore barred under § 1983.”). Here, the practice by the Justices of adjudicating cases under Town rental laws is unquestionably judicial in nature. Thus, to the extent Plaintiffs’ declaratory claims are retrospective in nature in that they seek a declaration that the Justices’ past enforcement of the Town’s rental law has violated the Constitution, they are barred by the doctrine of absolute immunity. See, e.g., LeDuc v. Tilley, 2005 WL 1475334, at *7 (D.Conn. June 22, 2005) (“Declaratory relief against a judge for actions taken within his or her judicial capacity is ordinarily available by appealing the judge’s order.”). To the extent Plaintiffs seek prospective declaratory relief, viz. a declaration that the Justices’ enforcement of the Town rental law constitutes a continuing violation of the Constitution, Plaintiffs’ claims are not barred by judicial immunity. See Francis v. Pellegrino, 224 Fed.Appx. 107, 108 (2d Cir.2007) (unpublished opinion) (finding that doctrine of judicial immunity not a bar to prospective declaratory relief.); B.D.S. v. Southold Union Free Sch. Dist., 2009 WL 1875942, at *20 (E.D.N.Y. June 24, 2009) (“[T]he doctrine of absolute immunity does not extend to claims for declaratory relief based upon continuing violations of federal law.”); LeDuc, 2005 WL 1475334, at *7 (“The doctrine of judicial immunity does not shield judges from claims for prospective declaratory relief.”). The question of whether Plaintiffs’ claims for injunctive relief are barred by the amended version of § 1983 is more complicated. As noted above, such claims are barred unless Plaintiffs allege that “a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983. Plaintiffs cannot allege that declaratory relief is unavailable because Plaintiffs can, and indeed have, pursued a claim seeking a declaration that the Town rental law is unconstitutional. Plaintiffs argue, however, that they have plausibly alleged that “a declaratory decree was violated.” In this regard, Plaintiffs’ First Amended Complaint relies upon a declaration issued by" }, { "docid": "14530729", "title": "", "text": "reflects the language Congress added to the statute in 1996 as part of the Federal Courts Improvement Act. The Third Circuit has described the added, language: The ... amendatory language to § 1983 does not expressly authorize suits for declaratory relief against judges. Instead, it implicitly recognizes that declaratory relief is available in some circumstances, and then limits the availability of injunctive relief to circumstances in which declaratory relief is unavailable or inadequate____A review of the legislative history confirms this reading of the amendment. The Senate Report accompanying the amendment suggests that the amendment’s purpose was to overrule the Supreme Court’s decision in Pulliam v. Allen, 466 U.S. 522, 541-43 [104 S.Ct. 1970, 80 L.Ed.2d 565] (1984) ... not to alter the landscape of declaratory relief. Brandon E. ex rel. Listenbee v. Reynolds, 201 F.3d 194, 197-98 (3d Cir.2000). In Pulliam, the Supreme Court concluded that “judicial immunity is not a bar to prospective relief against a judicial officer acting in her judicial capacity.” Pulliam, 466 U.S. at 541-42, 104 S.Ct. 1970. The Court also stated that “it is for Congress, not this Court, to determine whether and to what extent to abrogate the judiciary’s common-law immunity.” Id. at 543, 104 S.Ct. 1970. Congress took note of this responsibility and enacted the amendatory language to § 1983, which effectively overruled Pulliam. Section 1983 now implicitly recognizes that declaratory relief is available against judicial officers. Moreover, sovereign immunity does not bar plaintiffs’ declaratory judgment claim against Judge Ridge and Clerk Boss in their official capacities. Plaintiffs seek a declaration that Judge Ridge and Clerk Boss violated and continue to violate the Constitution. This falls squarely within the Ex parte Young doctrine. In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court stated an exception to sovereign immunity that allows individuals to seek prospective relief against state officials who violate federal laws or the Constitution. The Ex parte Young doctrine “rests on the premise — less delicately called a ‘fiction[ ]’ ... — that when a federal court commands a state official to do nothing" }, { "docid": "14530728", "title": "", "text": "plaintiffs’ complaint, which seeks both a declaratory judgment and injunctive relief, was properly dismissed with respect to the injunction claim. Plaintiffs cannot seek an injunction against a judicial officer without first seeking a declaratory judgment, and the district court properly dismissed the injunction claim. However, the plain language of § 1983 contemplates a declaratory judgment against judicial officers like Judge Ridge and Clerk Boss in their official capacities. Section 1983 states, in part: Every person who, under color of any statute ... of any State, subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in ... [a] suit in equity ... except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive re-, lief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 42 U.S.C. § 1983 (emphasis added). The italicized portion reflects the language Congress added to the statute in 1996 as part of the Federal Courts Improvement Act. The Third Circuit has described the added, language: The ... amendatory language to § 1983 does not expressly authorize suits for declaratory relief against judges. Instead, it implicitly recognizes that declaratory relief is available in some circumstances, and then limits the availability of injunctive relief to circumstances in which declaratory relief is unavailable or inadequate____A review of the legislative history confirms this reading of the amendment. The Senate Report accompanying the amendment suggests that the amendment’s purpose was to overrule the Supreme Court’s decision in Pulliam v. Allen, 466 U.S. 522, 541-43 [104 S.Ct. 1970, 80 L.Ed.2d 565] (1984) ... not to alter the landscape of declaratory relief. Brandon E. ex rel. Listenbee v. Reynolds, 201 F.3d 194, 197-98 (3d Cir.2000). In Pulliam, the Supreme Court concluded that “judicial immunity is not a bar to prospective relief against a judicial officer acting in her judicial capacity.” Pulliam, 466 U.S. at 541-42, 104 S.Ct. 1970. The Court also" }, { "docid": "1601551", "title": "", "text": "discharging a prosecutorial or investigatory role, and that the absence of a representative of the commonwealth or county at the hearing requires the judge “to juggle both his prosecutorial and judicial roles simultaneously.” We reject both of the plaintiffs’ arguments. Congress amended 42 U.S.C. § 1983 in 1996 as part of the Federal Courts Improvement Act (“96 Amendments”) for that year. As amended, § 1983 now provides: Every person who, under color of any statute ... of any State, subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in ... [a] suit in equity ... except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 42 U.S.C. § 1983 (emphasis added). The italicized portion reflects the language Congress added to the statute by the ’96 Amendments. The foregoing amendatory language to § 1983 does not expressly authorize suits for declaratory relief against judges. Instead, it implicitly recognizes that declaratory relief is available in some circumstances, and then limits the avail ability of injunctive relief to circumstances in which declaratory relief is unavailable or inadequate. The language is not an express authorization of declaratory relief, but simply a recognition of its availability or unavailability, depending on the circumstances, which the statute does not delineate. A review of the legislative history confirms this reading of the amendment. The Senate Report accompanying the amendment suggests that the amendment’s purpose was to overrule the Supreme Court’s decision in Pulliam v. Allen, 466 U.S. 522, 541-43, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984) (holding that judicial immunity was not a bar to awards of attorney’s fees and costs or to demands for injunctive relief), not to alter the landscape of declaratory relief. See S.Rep. No. 104-366, reprinted in 1996 U.S.C.C.A.N. 4202, 4217. Because the ’96 amendments to § 1983 were not" }, { "docid": "3321398", "title": "", "text": "U.S.C. § 1988(b); see also Shelton v. Seay, 1999 WL 1101254, at *2 (10th Cir.1999); Kampfer v. Scullin, 989 F.Supp. 194, 201-02 (N.D.N.Y.1997). The Tenth Circuit has applied the FCIA amendments to limit any attorney fee awards available against federal judges under Bivens. See Shelton, 1999 WL 1101254, at *2. As discussed above, it cannot be stated that any action or inaction taken by Defendant Krieger was in excess of her jurisdiction. As such, Plaintiffs claims for attorney fees are barred. Therefore, the only type of relief available to the plaintiff is declaratory relief. See Lawrence, 271 Fed.Appx. at 766 (citing Schepp v. Fremont County, 900 F.2d 1448, 1452 (10th Cir.1990)). D. Claims Against Defendant Krieger for Declaratory Relief Plaintiff seeks a declaration that “Defendants’ practices” of issuing “designer” and “unpublished” opinions which “fabricate and/or elide key facts” violated his constitutional rights. (Am. Compl. at 3^4.) “A declaratory judgment is meant to define the legal rights and obligations of the parties in anticipation of some future conduct, not simply to proclaim liability for a past act.” Lawrence at 766 (citing Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1266 (10th Cir.2004)). As of the time the amended complaint in this case was filed, Defendant Krieger had not issued any opinions against Plaintiff. Therefore, a declaration of any past liability by Defendant Krieger would be inappropriate. Moreover, Defendant Krieger is no longer assigned to this case, and Smith V was dismissed and closed after the plaintiff filed his complaint in this case. Since there is no basis for any declaration in anticipation of future conduct by Defendant Krieger regarding issues germane to the plaintiff, the plaintiff lacks standing to pursue declaratory judgment against Defendant Krieger. A declaratory judgment would serve no purpose here and, thus, is not available. See S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 730 (10th Cir.1997). Accordingly, Plaintiffs claims for declaratory relief against Defendant Krieger are properly dismissed for failure to state a claim upon which relief can be granted. As this court has found the claims against the Federal Defendants and" }, { "docid": "20523508", "title": "", "text": "also, e.g., Burrell v. Ross, No. 12-2504, 2013 WL 3097320, at *5 (M.D.Pa. June 18, 2013) (“These claims simply ask the court to declare past action unconstitutional retroactively, which basically amounts to declaring one party liable to another, so declaratory judgment is not appropriate here.”). Mr. Mikhail is really only asking for an as-applied ruling, and that is a request that Rooker-Feldman forbids the Court from even considering. See, e.g., Kwasnik v. LeBlon, 228 Fed.Appx. 238, 242 (3d Cir.2007) (per curiam) (“The Amended Complaint requests review of the constitutionality of N.J.S.A. § 9:2-4(c).... As important, the Amended Complaint includes new requests ... to prohibit enforcement of N.J.S.A. § 9:2-4(c) in divorce proceedings, and to stay his family court proceedings in state court. As to these requests for relief and their accompanying allegations, the District Court lacks subject matter jurisdiction under Rooker-Feldman as clarified by Exxon Mobil.”); Wagner v. Dist. Att’y, No. 11-762, 2012 WL 2090093, at *5 (W.D.Pa. R & R May 21, 2012) (“Plaintiff is not challenging through this civil rights action the constitutionality or adequacy of the Pennsylvania DNA testing procedures. Rather, he claims that Defendant, as well as the state courts he has sought to obtain relief from, have refused, in violation of his constitutional rights, to provide him with the DNA evidence he seeks.”), adopted, 2012 WL 2089799 (W.D.Pa. June 8, 2012). Moreover in fact, Mr. Mikhail cannot bring a claim for true declaratory relief—i.e., to declare Pennsylvania’s Protection from Abuse Act, 23 Pa. Cons.Stat. Ann. §§ 6101-6122, unconstitutional— against the Defendants he has named. Where judges act as adjudicators, as here, they are not the proper defendants in a § 1983 suit challenging the constitutionality of a statute. Brandon E. ex rel. Listenbee v. Reynolds, 201 F.3d 194, 198-200 (3d Cir.2000). Not all of Mr. Mikhail’s PFA proceedings—based claims are barred by Rooker-Feldman. Of course, any harms caused by Ms. Kahn and her attorneys, such as fraud upon the court or malicious prosecution, for example, are not barred by Rooker-Feldman because they are not caused by any state court judgment (although the fact that they" }, { "docid": "3321397", "title": "", "text": "immunity from declaratory or injunctive relief.” Pulliam, 466 U.S. at 541-42, 104 S.Ct. 1970. However, in 1996, Congress effectively reversed Pulliam with the enactment of the Federal Courts Improvement Act (“FCIA”), Pub.L. No. 104-317, 110 Stat. 3847 (1996) (amending 42 U.S.C. § 1983). Section 309(c) of the FCIA bars injunctive relief in any § 1983 action “against a judicial officer for an act or omission taken in such officer’s judicial capacity ... unless a declaratory decree was violated or declaratory relief was unavailable.” Neither statutory limitation appears to apply in this case, and Plaintiffs Amended Complaint says nothing to the contrary. Thus, judicial immunity extends not only to Plaintiffs claims for monetary relief, but to his claims for injunctive relief. See Lawrence v. Kuenhold, 271 Fed.Appx. 763, 766 (10th Cir.2008). The FCIA also amended 42 U.S.C. § 1988 to bar courts from awarding costs, including attorney’s fees, “against a judicial officer for an act or omission taken in such officer’s judicial capacity ... unless such action was clearly in excess of such officer’s jurisdiction.” 42 U.S.C. § 1988(b); see also Shelton v. Seay, 1999 WL 1101254, at *2 (10th Cir.1999); Kampfer v. Scullin, 989 F.Supp. 194, 201-02 (N.D.N.Y.1997). The Tenth Circuit has applied the FCIA amendments to limit any attorney fee awards available against federal judges under Bivens. See Shelton, 1999 WL 1101254, at *2. As discussed above, it cannot be stated that any action or inaction taken by Defendant Krieger was in excess of her jurisdiction. As such, Plaintiffs claims for attorney fees are barred. Therefore, the only type of relief available to the plaintiff is declaratory relief. See Lawrence, 271 Fed.Appx. at 766 (citing Schepp v. Fremont County, 900 F.2d 1448, 1452 (10th Cir.1990)). D. Claims Against Defendant Krieger for Declaratory Relief Plaintiff seeks a declaration that “Defendants’ practices” of issuing “designer” and “unpublished” opinions which “fabricate and/or elide key facts” violated his constitutional rights. (Am. Compl. at 3^4.) “A declaratory judgment is meant to define the legal rights and obligations of the parties in anticipation of some future conduct, not simply to proclaim liability for a past" }, { "docid": "20523686", "title": "", "text": "District Courts determination that the challenged actions of the judges of the Court of Common Pleas fell within the range of judicial action.”); Robinson v. Smyth, 258 Fed.Appx. 469, 470 (3d Cir.2007) (per curiam) (\"Robinson’s claims for injunctive relief against Judge Smyth were also barred because Robinson did not allege that the judge violated a declaratory decree or that declaratory relief was not available in his case.”); Catanzaro v. Cottone., 228 Fed.Appx. 164, 167 (3d Cir.2007) (per curiam) (\"Under the 1996 amendments to § 1983, injunctive relief against judicial officers for acts or omissions taken in the officer's judicial capacity ‘shall not be granted’ unless a declaratory decree was violated or declaratory relief was unavailable. See 42 U.S.C. § 1983.... Catanzaro’s Complaint-is devoid of any allegation that declaratory relief is unavailable or that a declaratory decree has been denied, and, thus, his claim for injunctive relief is barred.” (citation omitted)); Shallow v. Rogers, 201 Fed.Appx. 901, 904 n. 4 (3d Cir.2006) (per curiam) (\"To the extent that Shallow sought injunctive and declaratory relief against Judge Rogers, the claims were also properly dismissed.”); Corliss, 200 Fed.Appx. at 84-85 (\"To the extent that Corliss seeks injunctive relief, the 1996 amendment to § 1983 bar Corliss's claims for injunctive relief against the state court judges.”). . See also, e.g., Newsome v. Merz, 17 Fed.Appx. 343, 345 (6th Cir.2001) (“If he fails to prevail in case No. 99-473, Newsome can appeal that judgment as well. Thus, New-some had or has adequate remedies at law to address Magistrate Judge Merz's alleged misdeeds.” (citing Pulliam, 466 U.S. at 541-42, 104 S.Ct. 1970)); Bolin, 225 F.3d at 1242-43; Smith v. Stark, 777 F.Supp.2d 795, 800 (D.Del.2011) (\"Bolin emphasizes that injunctive relief ought not be granted to plaintiffs who have adequate remedies at law. Plaintiff has adequate remedies in both State and Federal court by right of appeal.” (citation omitted)); Leisure v. Frost, No. 07-968, 2008 WL 4186226, at *3 (S.D.Ohio Sept. 8, 2008) (\"[B]ecause plaintiff can appeal any final judgment entered in Leisure v. Reynoldsburg, she cannot, as a matter of law, demonstrate a right to injunctive" }, { "docid": "6935076", "title": "", "text": "nor do they con tend he lacked subject matter jurisdiction over the quiet title action. Instead, they argue they should be allowed to seek an unspecified form of declaratory relief against Judge Kuenhold. The only type of relief available to a plaintiff who sues a judge is declaratory relief, see Schepp v. Fremont County, 900 F.2d 1448, 1452 (10th Cir.1990), but not every plaintiff is entitled to this remedy. Lawrence and Greenstreet do not specify what form declaratory relief would take and their complaint cannot be read to request declaratory relief in the true legal sense. A declaratory judgment is meant to define the legal rights and obligations of the parties in anticipation of some future conduct, not simply to proclaim liability for a past act. See Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1266 (10th Cir.2004) (McConnell, J., concurring) (“[A] declaratory judgment action involving past conduct that will not recur is not justiciable.”); Francis E. Heydt Co. v. United States, 948 F.2d 672, 676-77 (10th Cir.1991). Lawrence and Greenstreet’s complaint is captioned as a “Complaint for Vacation of a Void Judgment.” (R. Vol. I, Doc. 1 at 1.) What they are seeking is a declaration of past liability, not future rights between them and Judge Kuenhold. A declaratory judgment would serve no purpose here and thus, is not available. See S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 730 (10th Cir.1997) (concluding a declaratory judgment was not available because it “would serve no purpose in this case”). Moreover, Lawrence and Greenstreet are not eligible for declaratory relief because there is a more suitable remedy — namely, a motion for relief from judgment under Rule 60(b) of the Colorado Rules of Civil Procedure. See State Farm Fire & Casu alty Co. v. Mhoon, 31 F.3d 979, 983 (10th Cir.1994) (one of the factors for a court to consider in deciding whether to hear a declaratory action is “whether there is an alternative remedy which is better or more effective”) (quotation omitted). We decline Lawrence and Greenstreet’s invitation to remand the case to allow them" }, { "docid": "6935075", "title": "", "text": "Greenstreet’s complaint should not have been dismissed under Rooker-Feldman, we will consider whether the court correctly concluded Judge Kuenhold was immune from suit. In an action for monetary damages, “[judicial] immunity is overcome in only two circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. Second, a judge is not immune from actions, though judicial in nature, taken in the complete absence of jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (citations omitted); see also Beedle, 422 F.3d at 1072 (“ ‘A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction.’ ”) (quoting Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)). Lawrence and Greenstreet do not contend Judge Kuenhold acted outside of his judicial capacity; nor do they con tend he lacked subject matter jurisdiction over the quiet title action. Instead, they argue they should be allowed to seek an unspecified form of declaratory relief against Judge Kuenhold. The only type of relief available to a plaintiff who sues a judge is declaratory relief, see Schepp v. Fremont County, 900 F.2d 1448, 1452 (10th Cir.1990), but not every plaintiff is entitled to this remedy. Lawrence and Greenstreet do not specify what form declaratory relief would take and their complaint cannot be read to request declaratory relief in the true legal sense. A declaratory judgment is meant to define the legal rights and obligations of the parties in anticipation of some future conduct, not simply to proclaim liability for a past act. See Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1266 (10th Cir.2004) (McConnell, J., concurring) (“[A] declaratory judgment action involving past conduct that will not recur is not justiciable.”); Francis E. Heydt Co. v. United States, 948 F.2d 672, 676-77 (10th Cir.1991). Lawrence and Greenstreet’s" }, { "docid": "20523615", "title": "", "text": "or omission taken in such officer’s judicial capacity ... unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983; Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir.2000) (explaining that the amendment applies to both state and federal judges). Because Azubuko has not alleged that a declaratory decree was violated or that declaratory relief is unavailable, and because the injunctive relief sought by Azubuko does not address the actions of Judge Royal other than in his judicial capacity, his claim for injunctive relief is barred. Azubuko, 443 F.3d at 303-04 (citations omitted). This Court has been unable to find any case holding otherwise. Moreover, even before the 1996 amendments to § 1983, which superseded the Supreme Court’s holding in Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, by severely restricting the availability of injunctive relief against judges, a plaintiff seeking injunctive relief against a judge in the judge’s individual capacity still had to demonstrate that there was no “adequate remedy at law, rendering equitable relief inappropriate.” Pulliam, 466 U.S. at 542, 104 S.Ct. 1970; accord, e.g., Chadwick v. Court of Common Pleas, 244 Fed.Appx. 451, 455 (3d Cir.2007) (per curiam) (“Moreover, even if such claims were not barred by judicial immunity, Chadwick has not demonstrated ‘an inadequate remedy at law,’ see Pulliam, 466 U.S. at 537-38, 104 S.Ct. 1970.”); Bolin, 225 F.3d at 1242-43. Such adequate remedies includes appellate review. See Pulliam, 466 U.S. at 543 n. 22, 104 S.Ct. 1970. As already discussed at length above, Mr. Mikhail not only can appeal PFA and custody judgments against him (or could have), but, as his allegations themselves indicate, he has done so. His adequate remedies at law are yet a further reason that his § 1983 claims against the judges must be dismissed with prejudice. 3. Absolute Quasi-Judicial Immunity for the Court-Appointed Defendants Mr. Mikhail also brings claims against Drs. Lustig and Pisa and Ms. Sobel. As discussed above, the Court is dismissing with prejudice the § 1983 claims against Dr. Lustig because the statute of limitations has run, see supra Section III.C. The" }, { "docid": "6935080", "title": "", "text": "at 466, 126 S.Ct. 1198. . Such an argument would be unavailing as Colorado state district courts are courts of general jurisdiction. See Colo. Const, art. VI, § 9 (\"The district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, probate, and criminal cases____”). . In Schepp, we cited Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984), for the proposition that a judge “is not shielded by absolute [judicial] immunity from declaratory or injunctive relief.” 900 F.2d at 1452. In 1996, Congress effectively reversed Pulliam with the enactment of the Federal Courts Improvement Act of 1996 (\"FCIA”), Pub.L. No. 104-317, 110 Stat. 3847 (1996) (amending 42 U.S.C. § 1983). Section 309(c) of the FCIA bars injunctive relief in any § 1983 action \"against a judicial officer for an act or omission taken in such officer's judicial capacity ... unless a declaratory decree was violated or declaratory relief was unavailable.” Thus, the doctrine of judicial immunity now extends to suits against judges where a plaintiff seeks not only monetary relief, but injunctive relief as well. See Roth v. King, 449 F.3d 1272, 1286 (D.C.Cir.2006), cert. denied sub nom., Sitomer v. King, - U.S. -, 127 S.Ct. 1357, 167 L.Ed.2d 82 (2007) (\"42 U.S.C. § 1983, as amended in 1996 by the [FCIA], explicitly immunizes judicial officers against suits for injunctive relief.”); Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir.2000) (discussing the effect of the FCIA on Pulliam). . Furthermore, it could not be granted as \"[t]he Eleventh Amendment does not permit judgments against state officers declaring that they violated federal law in the past.” Johns v. Stewart, 57 F.3d 1544, 1553 (10th Cir.1995) (quotation omitted). . Providing in pertinent part: On motion and upon such terms as are just, the court may relieve a party ... from a final judgment ... for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the" }, { "docid": "12179786", "title": "", "text": "zoning officials from permitting such shooting range operations in the future: Clearly, all of the Lorizes’ claims were inextricably intertwined with the state court decisions. In order for the district court to grant the requested declaratory or injunctive relief, or to award damages, the district court would be forced to review the decisions of the Ohio Division of Wildlife, the BZA, the Ohio Court of Common Pleas, and the Ohio appellate court. Moreover, the relief the Lorizes seek—a declaration that the state courts reached an improper result based on a faulty application of the law—is not a general challenge to the constitutionality of the state law, but rather a specific grievance over specific decisions. These claims are exactly the type the Rooker-Feldman doctrine intended to bar in the lower federal courts. Id. at 475 (emphasis added). Other circuits have applied similar reasoning to conclude that claims seeking injunctive relief are barred by Rooker-Feldman if they necessarily require the federal court to determine that a state court judgment was erroneously entered. See Mann v. Boatright, 477 F.3d 1140, 1147 (10th Cir.2007) (holding that plaintiffs’ prayer for permanent enjoinment of allegedly unconstitutional probate order barred by Rooker-Feldman), cert. denied, — U.S. -, 128 S.Ct. 897, 169 L.Ed.2d 728 (2008); Mickens v. Tenth Judicial Circuit, 181 Fed.Appx. 865, 874-75 (11th Cir.) (noting that “the Rooker-Feldman doctrine can bar injunctive relief as well as other forms of relief’ and holding that district court lacked jurisdiction over plaintiffs’ request for preliminary injunction to enjoin mortgage foreclosure sale of their property), cert. denied, — U.S. -, 127 S.Ct. 834, 166 L.Ed.2d 666 (2006). Finally, we note that Lawrence’s second cause of action is not outside the scope of Rooker-Feldman by virtue of being a “general challenge” to the constitutionality of a state law or rule. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 483-86, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Instead, Lawrence’s second claim challenges only defendants’ application of their admission criteria to him. J.A. 29-30 (Compl.¶ 61). For this reason, Lawrence’s claim is distinguishable from the general challenges to" }, { "docid": "2948081", "title": "", "text": "of the ... recommendations to which objection is made.” Thus, both judges were entitled to immunity from Johnson’s claims for damages. We now turn to Johnson’s claim for injunctive and “declaratory” relief. The Supreme Court of the United States has held that judicial immunity does not extend to injunctive relief, Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984); Scruggs v. Moellering, 870 F.2d 376, 378 (7th Cir.1989), abrogated on other grounds, Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432 n. 3, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993), but at least two circuits have carved an exception to that rule for cases where the defendant is a federal judge (sued in a Bivens action) rather than a state judge (sued under 42 U.S.C. § 1983), Bolin v. Story, 225 F.3d 1234, 1239-42 (11th Cir.2000) (per curiam); Mullis v. United States Bankr. Ct. for the Dist. of Nev., 828 F.2d 1385, 1391-94 (9th Cir.1987). We found that exception to be “of doubtful merit,” Scruggs, 870 F.2d at 378, but our doubt is now irrelevant because Congress has since amended § 1983 to provide that “injunctive relief shall not be granted” in an action brought against “a judicial officer for an act or omission taken in such officer’s judicial capacity ... unless a declaratory decree was violated or declaratory relief was unavailable.” This amendment bars injunctive relief against both state and federal judges because “federal courts incorporate § 1983 law into Bivens actions.” Bolin, 225 F.3d at 1242. Thus, the amendment to § 1983 limits the type of relief available to plaintiffs who sue judges to declaratory relief. Id. But Johnson is not seeking declaratory relief in the true legal sense. See Fed. R.Civ.P. 57; 28 U.S.C. § 2201. In his complaint Johnson asks the district court to “declare” that Magistrate Judge Bernthal and Judge McCuskey acted improperly in various ways when deciding the motion for a change of venue. Declaratory judgments, however, are meant to define the legal rights and obligations of the parties in the anticipation of some future conduct. See Bontkowski" }, { "docid": "2948082", "title": "", "text": "but our doubt is now irrelevant because Congress has since amended § 1983 to provide that “injunctive relief shall not be granted” in an action brought against “a judicial officer for an act or omission taken in such officer’s judicial capacity ... unless a declaratory decree was violated or declaratory relief was unavailable.” This amendment bars injunctive relief against both state and federal judges because “federal courts incorporate § 1983 law into Bivens actions.” Bolin, 225 F.3d at 1242. Thus, the amendment to § 1983 limits the type of relief available to plaintiffs who sue judges to declaratory relief. Id. But Johnson is not seeking declaratory relief in the true legal sense. See Fed. R.Civ.P. 57; 28 U.S.C. § 2201. In his complaint Johnson asks the district court to “declare” that Magistrate Judge Bernthal and Judge McCuskey acted improperly in various ways when deciding the motion for a change of venue. Declaratory judgments, however, are meant to define the legal rights and obligations of the parties in the anticipation of some future conduct. See Bontkowski v. Smith, 305 F.3d 757, 761 (7th Cir.2002); see generally 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2751 (3d ed.1998). For example, a party may seek a declaratory judgment to determine whether a particular contract term is binding and need not risk breaching the contract and await a suit. See Bontkowski, 305 F.3d at 761 (explaining how a declaratory judgment may be used as “a method of depriving the defendant of delay as a weapon”). Declaratory judgments are not meant simply to proclaim that one party is liable to another. See Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1553-54 (Fed.Cir. 1994) (en banc) (concluding that the plaintiffs prayer for a “declaration” of a regulatory taking was “different from a formal declaration under the Declaratory Judgment Act”). AFFIRMED." } ]

[ { "docid": "23168068", "title": "", "text": "a class settlement agreement, a district court must determine that the requirements for class certification under Federal Rule of Civil Procedure 23(a) and (b) are met and must determine that the settlement is fair to the class under Federal Rule of Civil Procedure 23(e). As the Supreme Court has made clear: “Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, for the proposal is that there be no trial. But other specifications of [Rule 23] — those designed to protect absentees by blocking unwarranted or overbroad class definitions— demand undiluted, even heightened, attention in the settlement context.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (citation omitted). “[I]f a fairness inquiry under Rule 23(e) controlled certification, eclipsing Rule 23(a) and (b), and permitting class designation despite the impossibility of litigation, both class counsel and court would be disarmed.” Id. at 621, 117 S.Ct. 2231. Thus, it is important to “applyf ] the class certification requirements of Rules 23(a) and (b) separately from [the] fairness determination under Rule 23(e).” In re Prudential Ins. Co., 148 F.3d at 308. “The requirements of [Rule 23](a) and (b) are designed to insure that a proposed class has ‘sufficient unity so that absent class members can fairly be bound by decisions of class representatives.’ ” Id. at 309 (quoting Amchem, 521 U.S. at 621, 117 S.Ct. 2231). Under Rule 23(a), the prerequisites to class certification are: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a); see Amchem, 521 U.S. at 613, 117 S.Ct. 2231. If all of the prerequisites of Rule 23(a) are satisfied, a class action may be maintained if the standards set forth in Rule 23(b) are satisfied" } ]

[ { "docid": "14847174", "title": "", "text": "broke with the majority and overruled its previous decisions on this issue. See Powell v. Barrett, 541 F.3d 1298 (11th Cir.2008) (overruling Wilson v. Jones, 251 F.3d 1340 (11th Cir.2001)). The court in Powell held that a blanket strip-search policy for all arrestees can be constitutional under Bell. It reasoned that the Bell balancing test allows for the interest of prison security to outweigh the individual privacy interests of detainees, regardless of whether there is reasonable suspicion that the particular arrestee is concealing weapons or contraband. See id. at 1309-12. Another circuit is reconsidering its line of cases on the issue and rehearing a strip-search case en banc. See Bull v. City and County of San Francisco, 539 F.3d 1193 (9th Cir.2008), rehearing en banc granted, 558 F.3d 887 (9th Cir.2009). The Court of Appeals for the Third Circuit has yet to rule on this issue. The plaintiffs in this case, therefore, would have to establish that the City’s policy was unconstitutional under the Bell standard. To do so, they must show that Bell requires a reasonable suspicion to conduct a strip-search of pre-trial detainees. They must then show that, under the Bell factors, the policy was unreasonable as applied to all persons arrested for misdemeanors and minor crimes, including those charged with violence, drug, or weapons-related crimes and those with a previous felony or violence, drug, or weapons-related misdemeanor conviction. A. Class Certification A court presented with a joint request for approval of a class certification and settlement must separate its analysis of the class certification from its determination that the settlement is fair. See In re Insurance Brokerage Antitrust Litigation, 579 F.3d 241, 257-58 (3d Cir.2009). To certify a class under Rule 23, a court must find that all four requirements of Rule 23(a) and at least one part of Rule 23(b) are met. See Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir.1994). The Settlement Class includes all individuals who were placed into the custody of PPS after being charged with misdemeanors or other minor crimes and were strip-searched upon entry. The class period commences on" }, { "docid": "14847210", "title": "", "text": "without further litigation, under circumstances where the liability issues are still vigorously contested among the Parties to this litigation. This Settlement provides Class Members with a substantial monetary benefit. c. This Settlement is clearly a product of hard-fought litigation between the Parties, and not a result of any collusion on the part of Class Counsel or Counsel for the Defendant. 11. Class Counsel submitted to the Court and served on the Defendant their application for reasonable attorneys’ fees, costs, and expenses consistent with the terms of the Settlement Agreement. This Court has considered Class Counsel’s request and hereby grants the request. 12. The claims procedure established under the Settlement Agreement is fair, a simplified process, and workable. In any event, the Court will retain jurisdiction to work out any unanticipated problems. NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS OF FACT, THE COURT HEREBY MAKES THE FOLLOWING CONCLUSIONS OF LAW: 13. This Court has jurisdiction over the Parties and the subject matter of this proceeding. 14. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the following Settlement Class is certified for purposes of final settlement: Settlement Class: All persons who were placed into the custody of the Philadelphia Prison System after being charged with misdemeanors; summary offenses; traffic infractions, civil commitments, or other minor crimes; or bench warrants and/or probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime; and who were strip searched in the absence of reasonable suspicion upon their entry into the Philadelphia Prison System pursuant to the policy, custom and practice of the Philadelphia Prison System and the City of Philadelphia. The class period commences on April 21, 2003 and extends to, and includes, October 9, 2007. Subclass I: All persons in the Settlement Class, EXCEPT for persons who (1) were charged with certain violence, drug and/or weapons (hereinafter “VDW”) related misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor" }, { "docid": "14847164", "title": "", "text": "into two subclasses, defined as follows: All persons who were placed into the custody of the Philadelphia Prison System after being charged with misdemeanors; summary offenses; traffic infractions, civil commitments, or other minor crimes; or bench warrants and/or probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime; and who were strip-searched in the absence of reasonable suspicion upon their entry into the Philadelphia Prison System pursuant to the policy, custom and practice of the Philadelphia Prison System and the City of Philadelphia. The class period commences on April 21, 2003 and extends to, and includes, October 9, 2007. Subclass I: All persons in the Settlement Class, EXCEPT for persons who (1) were charged with certain violence, drug and/or weapons (hereinafter “VDW”) related misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission. Subclass II: All persons in the Settlement Class who were (1) charged with VDW misdemean- or charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission. Settlement Agreement at 7. The Settlement Agreement recognized that the City had changed its policy to stop strip-searching all pretrial detainees on a blanket basis and to stop strip-searching misdemeanor detainees in the absence of reasonable suspicion. See id. at 10. The City adopted a model policy that uses modern technology such as metal-detecting chairs and ion scanners to thoroughly search all pretrial detainees without a strip-search. See Parties’ Mot. for Class Cert, and Settlement at 3. The Settlement Agreement states that the City’s current written policy has been reviewed by the City of Philadelphia Law Department for compliance with state and federal law. The City maintains that the current policy is constitutional. The Settlement Agreement requires that all correction officers" }, { "docid": "14847163", "title": "", "text": "on February 16, 2007, and the defendants responded on April 16, 2007. The plaintiffs also filed a motion for preliminary injunction on March 23, 2007. A hearing on both of the plaintiffs’ motions was held on June 28, 2009. At the hearing, the City informed the Court that it was preparing procedures for the use of equipment that would be used in lieu of strip-searching. In view of the City’s proposed change in policy, the Court referred the matter to Magistrate Judge Elizabeth Hey for settlement. Negotiations began in July of 2007. The parties met with Judge Hey eleven times over the course of the year. These negotiations concluded with a mediation held on July 21, 2008, before retired Magistrate Judge James R. Melinson, in which settlement was reached. After reaching the settlement, the parties memorialized the terms in a Settlement Agreement, prepared for the administration of the settlement, and drafted the class notice. They executed the proposed Settlement Agreement on February 20, 2009. B. The Settlement Agreement The Settlement Agreement divides the Settlement Class into two subclasses, defined as follows: All persons who were placed into the custody of the Philadelphia Prison System after being charged with misdemeanors; summary offenses; traffic infractions, civil commitments, or other minor crimes; or bench warrants and/or probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime; and who were strip-searched in the absence of reasonable suspicion upon their entry into the Philadelphia Prison System pursuant to the policy, custom and practice of the Philadelphia Prison System and the City of Philadelphia. The class period commences on April 21, 2003 and extends to, and includes, October 9, 2007. Subclass I: All persons in the Settlement Class, EXCEPT for persons who (1) were charged with certain violence, drug and/or weapons (hereinafter “VDW”) related misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission. Subclass II: All persons" }, { "docid": "1605252", "title": "", "text": "OPINION AND ORDER LYNCH, District Judge. A settlement agreement between plaintiffs and defendants in the above-captioned class action was preliminarily approved by this Court on June 21, 2005. Plaintiffs now move for final approval of the settlement pursuant to Fed.R.Civ.P. 23(e)(1)(A). Intervenorplaintiffs object to the proposed settlement and request that it be rejected. For the reasons below, plaintiffs’ motion for approval will be granted and intervenors’ objections will be overruled. BACKGROUND This case has a long history, much of which is laid out in this Court’s opinion certifying the plaintiff class, McBean v. City of New York (McBean I), 228 F.R.D. 487 (S.D.N.Y.2005). In that opinion, this Court defined the plaintiff class as “pre-trial detainees who, during the class period [July 15, 1999 through July 22, 2002], were arraigned on certain misdemeanors, violations, and misdemeanor charges of civil contempt, and non-felony warrants regarding same, and who, after arraignment, were strip-searched in DOC jails pursuant to the standard new admission strip search procedure.” Id. at 496 (emphasis omitted). Plaintiffs claim that because the searches were conducted without individualized reasonable suspicion, the defendants violated their federal civil rights. On May 13, 2005, after several settlement conferences under the close supervision of Magistrate Judge Theodore E. Katz, plaintiffs and defendants entered into a stipulation of settlement. The proposed settlement incorporates this Court’s definition of the class, and explicitly excludes “pre-trial detainees who, at the time they were admitted ..., were charged with [various specified drug-related or weapon-related crimes].” (Settlement 1IH 1, 2.) Under the proposed settlement, class members are eligible to receive $750 if they were subjected to one qualifying strip search, and $1000 if they were subjected to two or more qualifying strip searches. (Id. HH28, 29, 30.) In exchange for this payment eligibility, class members agree to release all claims arising from defendants’ “new admission” strip search policy, including claims made in this action, and agree not to pursue any new action against defendants arising from the policy. (Id. UK 18, 20.) To receive a payment under the settlement, class members must have completed and returned a claim form before the" }, { "docid": "14847175", "title": "", "text": "a reasonable suspicion to conduct a strip-search of pre-trial detainees. They must then show that, under the Bell factors, the policy was unreasonable as applied to all persons arrested for misdemeanors and minor crimes, including those charged with violence, drug, or weapons-related crimes and those with a previous felony or violence, drug, or weapons-related misdemeanor conviction. A. Class Certification A court presented with a joint request for approval of a class certification and settlement must separate its analysis of the class certification from its determination that the settlement is fair. See In re Insurance Brokerage Antitrust Litigation, 579 F.3d 241, 257-58 (3d Cir.2009). To certify a class under Rule 23, a court must find that all four requirements of Rule 23(a) and at least one part of Rule 23(b) are met. See Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir.1994). The Settlement Class includes all individuals who were placed into the custody of PPS after being charged with misdemeanors or other minor crimes and were strip-searched upon entry. The class period commences on April 21, 2003 and extends to, and includes, October 9, 2007. The Settlement Class is then divided into two Subclasses. Subclass I includes all persons in the Settlement Class except those who (1) were arrested for violence, drugs or weapons-related misdemeanor charges, (2) were charged with bench warrants or probation violations where the underlying charge was a violence, drugs or weapons-related misdemeanor charge, or (3) had convictions for felonies or violence, drugs or weapons-related misdemeanors. Subclass II includes all members of the Settlement Class excluded from Subclass I. 1. Analysis Under Rule 23(a) Federal Rule of Civil Procedure Rule 23(a) requires that four requirements be met in order for a to be certified: numerosity, commonality, typicality, and adequate representation. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The Court finds that the four requirements of Rule 23(a) are met. a. The Numerosity Requirement Rule 23(a)(1) requires a class to be so numerous that joinder of all members is impracticable. Classes exceeding forty or more class members" }, { "docid": "14847179", "title": "", "text": "represent the entire class, it may under Rule 23(c)(5) divide a class into subclasses where appropriate. When class members have different claims or defenses or have conflicting or antagonistic interests, subclasses are appropriate. Each subclass is then to be treated as a class within the rule, and each must have its own representative. See id. at 312; Amchem, 521 U.S. at 627, 117 S.Ct. 2231. In this case, the parties have separated the settlement class into two subclasses: Subclass I includes all persons in the Settlement Class except those who (1) were arrested for violence, drugs or weapons-related misdemeanor charges, (2) were charged with bench warrants or probation violations where the underlying charge was a violence, drugs or weapons-related misdemeanor charge, or (3) had convictions for felonies or violence, drugs or weapons-related misdemeanors; Subclass II includes all members of the Settlement Class excluded from Subclass I. The Court finds that the creation of subclasses is appropriate here because each of the two subclasses will have to make a different showing to establish that the City lacked the reasonable suspicion to strip search the subclass members. For the members of Subclass I to prevail on their claims, they must establish both that Bell requires a reasonable suspicion to conduct a strip search of all pre-trial detainees and that the City lacked such a reasonable suspicion with regard to them. The members of Subclass II, however, will have to make the additional showing that the City could not strip-search them categorically based upon the reasonable suspicion that they are more likely to attempt to smuggle contraband into the pris on due to the nature of the charges against them or their criminal history. The members of Subclass II therefore would have to show that reasonable suspicion to strip-search must be established individually and cannot be found categorically. The proposed division into these two subclasses is reflected in the decisions of other courts, in that courts routinely certify classes with definitions excluding individuals violence, drug, or weapons-related charges. The class representatives in this case have claims typical of, and no interests antagonistic to," }, { "docid": "14053202", "title": "", "text": "L.Ed.2d 447 (1979). Specifically, this balancing test requires courts to “consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id. In applying the Bell test in the context of misdemeanor detainees, the First Circuit concluded that strip and visual body cavity searches “must be justified by at least a reasonable suspicion that the arrestee is concealing contraband or weapons.” Swain v. Spinney, 117 F.3d 1, 7 (1st Cir.1997). See also Wood v. Clemons, 89 F.3d 922, 929 (1st Cir.1996)(reasonable suspicion standard is the appropriate one for justifying strip searches of prison visitors); United States v. Uricoechea-Casallas, 946 F.2d 162, 166 (1st Cir.1991)(reasonable suspicion standard is the appropriate one for justifying strip searches non-routine border searches). In the years following Swain, the First Circuit has reaffirmed that strip searches of persons arrested on a misdemeanor charge and brought to a local jail for booking must be justified by individualized reasonable suspicion of concealed weapons or contraband. See Wood v. Hancock County, 354 F.3d 57, 62 (1st Cir. 2003); Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir.2001); Miller v. Kennebec County, 219 F.3d 8, 12-13 (1st Cir.2000); see also Savard v. Rhode Island, 338 F.3d 23, 37 (1st Cir.2003)(en banc)(equally divided court affirmed district court’s grant of qualified immunity to defendants based on conclusion that unlawfulness of strip search of misdemeanants housed at a state’s maximum security prison without particularized suspicion was not clearly established). The record in this case establishes that pursuant to Knox County’s written policy corrections officers at the Knox County Jail routinely strip search newly-arrived felony arrestees regardless of the charge. The jail policies do not differentiate between violent felonies and other non-violent, non-weapon, or non-drug Class “C” crimes. Robbins Depo. at 12. Under Maine law, there are some felony crimes that do not involve violence, weapons, or drugs. For example, Maine’s “Operating Under the Influence” statute provides a Class C felony. See 29-A M.R.S.A. § 2411. .It cannot be understood that being accused of operating under the" }, { "docid": "14847183", "title": "", "text": "settlement context.” Amchem, 521 U.S. at 620, 117 S.Ct. 2231. a. The Predominance Requirement Under Rule 23(b)(3), a court must determine that common questions of law or fact predominate over any questions affecting only individual members. Predominance is found when common questions represent a significant part of the case and can be resolved for all members of the class in a single adjudication. See 7AA Charles A. Wright, et al., Federal Practice and Procedure § 1778 (3d ed.2005). To establish predominance, the plaintiffs must show by a preponderance of the evidence that the elements of their claim can be proven by evidence common to all in their class. See In re Hydrogen Peroxide Anti-trust Litig., 552 F.3d 305, 311-12 (3d Cir.2008). For the members of Subclass I, the question is whether the City’s policy of strip-searching all pre-trial detainees in the absence of reasonable suspicion violates the Fourth Amendment. General evidence of the policy and its blanket application to the subclass members will be required to prove the subclass’s claim. Evidence of the circumstances of each individual search would not be necessary to prove this claim. This has led many courts to conclude that the common question of the constitutionality of such a blanket strip-search policy as applied to members of classes similar to Subclass I meets the predominance requirement. Members of Subclass II would need to prove that the City’s policy was unconstitutional as applied to arrestees charged with violence, drug or weapons-related crimes or arrestees with a previous felony or violence, drug or weapons-related misdemeanor conviction. The members of this subclass must not only show that the City’s policy was unconstitutional as applied to all arrestees, but also that the City was constitutionally required to establish reasonable suspicion for each individual arrestee before conducting a search. This common question of whether individualized reasonable suspicion is constitutionally required predominates over any individual questions within this subclass. Within each subclass, then, a common issue predominates over any individual claims, and the elements of each claim can be proven with evidence common to all. The predominance requirement under Rule 23(b)(3) is" }, { "docid": "14847192", "title": "", "text": "upon a number of variables, including the circumstances and severity of the search and the effect of the search on the class members. A consideration of damages also weighs towards settlement. b. The Increased Risks of Liability for the Members of Subclass II The Court must also decide whether the disparity in recovery amounts between the subclasses is fair, reasonable and adequate. The Court concludes that the limited recovery to members of Subclass II is fair, reasonable and adequate when considering the increased risk to the members of Subclass II in establishing liability. Courts in at least two circuits have stated that a violent or drug-related charge alone creates a reasonable suspicion that would allow prison authorities to strip-search pretrial detainees like those placed in Subclass II. See Masters, 872 F.2d at 1255 (“It is objectively reasonable to conduct a strip search of one charged with a crime of violence before that person comes into contact with other inmates”); Mary Beth G., 723 F.2d at 1272 (distinguishing the constitutionality of strip-searches where there is no reasonable suspicion for pretrial detainees held on “inherently dangerous” crimes from the unconstitutionality of strip searches of “minor offenders”). Under this view, even if a court were to find that a blanket strip-search policy was unconstitutional as applied to the members of Subclass I, it could still find that the policy was constitutional as applied to individuals charged with violence, drug or weapons-related crimes. These members of Subclass II, therefore, have more of a risk in establishing liability than the members of Subclass I. Class definitions in similar strip-search class actions often exclude individuals with violence, drug or weapons-related charges. In this case, these subclass members will still receive some relief, which is a more generous result than similarly-situated individuals in other cases have received. This fact, coupled with the greater risk in establishing liability, makes the settlement for these members of Subclass II under the fourth and fifth Girsh factors fair, adequate and reasonable. There is similar support for the inclusion of individuals with preexisting felony or violence, drug or weapons-related misdemeanor convictions in" }, { "docid": "14847159", "title": "", "text": "MEMORANDUM McLAUGHLIN, District Judge. The parties have moved for the certification of a class and approval of a settlement in this case involving the policy of the City of Philadelphia to strip-search all pretrial detainees upon admission to the Philadelphia Prison System (PPS). Class counsel has also moved for an award of attorneys’ fees and reimbursement of out-of-pocket expenses. After a hearing held on September 29, 2009, the Court grants these motions and enters final judgment and an order of dismissal. I. Background A. History of the Litigation Class representative Nakisha Boone brought this class action on behalf of herself and all others who were strip-searched after being charged with a misdemeanor or other minor crime. Ms. Boone was arrested for violating a bench warrant with an underlying charge of endangering the welfare of a child. She was strip-searched before being placed into detention. She argued that PPS’s policy of strip-searching all pretrial detainees upon admission was unconstitutional. The complaint named the City, the PPS, the Prisons Commissioner, members of the Prisons’ Board of Trustees and three of the prison’s Deputy Commissioners as defendants. The class was defined in the complaint as [a]ll persons who have been or will be placed into the custody of the PPS after being charged with misdemeanor violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were or will be strip searched upon entry into PPS pursuant to the policy, custom and practice of the PPS and the City of Philadelphia. Compl. at 7. The class period commenced on April 21, 2003, and was to extend until the defendants were enjoined from or otherwise ceased enforcing the policy. Id. The parties engaged in extensive discovery from July 2005 until November 2005. This initial period of discovery focused on the PPS’s policy. It included the production of documents relating to the prison policies, an inspection of the PPS facility, and depositions of prison officials and staff. The plaintiff filed a motion for partial summary judgment on the issue of the constitutionality of the defendants’ blanket strip-search policy on January 23," }, { "docid": "14847180", "title": "", "text": "lacked the reasonable suspicion to strip search the subclass members. For the members of Subclass I to prevail on their claims, they must establish both that Bell requires a reasonable suspicion to conduct a strip search of all pre-trial detainees and that the City lacked such a reasonable suspicion with regard to them. The members of Subclass II, however, will have to make the additional showing that the City could not strip-search them categorically based upon the reasonable suspicion that they are more likely to attempt to smuggle contraband into the pris on due to the nature of the charges against them or their criminal history. The members of Subclass II therefore would have to show that reasonable suspicion to strip-search must be established individually and cannot be found categorically. The proposed division into these two subclasses is reflected in the decisions of other courts, in that courts routinely certify classes with definitions excluding individuals violence, drug, or weapons-related charges. The class representatives in this case have claims typical of, and no interests antagonistic to, members of their respective subclasses. Mr. Byrd who, represents Subclass I, was charged with a non-violence, drug or weapons-related misdemeanor and had no previous criminal history. Ms. Boone represents Subclass II. Although she was arrested for a nonviolence, drug or weapons-related crime, she had a criminal history involving violent crimes. Finally, class counsel in this case has substantial experience in litigating complex civil rights actions. They have served as class counsel in at least twenty strip-search class actions. Class counsel have also vigorously represented the class through four years of litigation, including discovery and motion practice. They fulfill the adequacy requirement of Rule 23(a). For these reasons, the Court finds that the four requirements of Rule 23(a), numerosity, commonality, typicality and adequacy, are met in this case. 2. Analysis Under Rule 23(b) Once a court determines that the requirements of Rule 23(a) are met, it must consider whether the action is maintainable under one of the three parts of Rule 23(b). The parties seek to have this class certified under Rule 23(b)(3). Rule 23(b)(3) allows" }, { "docid": "14847178", "title": "", "text": "or defenses of the class and that the representative parties will fairly and adequately protect the interests of the class. The Court of Appeals for the Third Circuit has noted that these two inquiries tend to merge because both evaluate the relation of the claims and the potential conflicts between the class representatives and the class in general. Beck v. Maximus, Inc., 457 F.3d 291, 296 (3d Cir.2006). The typicality inquiry centers on whether the interests of the class representatives align with the interests of the absent class members such that the former is working towards the benefit of the class as a whole. See In re Prudential, 148 F.3d at 311. Two distinct inquiries comprise the adequacy requirement. See In re Prudential, 148 F.3d at 312. The first inquiry determines whether any significant antagonistic interests or conflicts exist between the class representatives and absent class members. The second inquiry looks to the experience and expertise of class counsel in representing the class. See id. If a court finds that a single class representative cannot represent the entire class, it may under Rule 23(c)(5) divide a class into subclasses where appropriate. When class members have different claims or defenses or have conflicting or antagonistic interests, subclasses are appropriate. Each subclass is then to be treated as a class within the rule, and each must have its own representative. See id. at 312; Amchem, 521 U.S. at 627, 117 S.Ct. 2231. In this case, the parties have separated the settlement class into two subclasses: Subclass I includes all persons in the Settlement Class except those who (1) were arrested for violence, drugs or weapons-related misdemeanor charges, (2) were charged with bench warrants or probation violations where the underlying charge was a violence, drugs or weapons-related misdemeanor charge, or (3) had convictions for felonies or violence, drugs or weapons-related misdemeanors; Subclass II includes all members of the Settlement Class excluded from Subclass I. The Court finds that the creation of subclasses is appropriate here because each of the two subclasses will have to make a different showing to establish that the City" }, { "docid": "14847193", "title": "", "text": "reasonable suspicion for pretrial detainees held on “inherently dangerous” crimes from the unconstitutionality of strip searches of “minor offenders”). Under this view, even if a court were to find that a blanket strip-search policy was unconstitutional as applied to the members of Subclass I, it could still find that the policy was constitutional as applied to individuals charged with violence, drug or weapons-related crimes. These members of Subclass II, therefore, have more of a risk in establishing liability than the members of Subclass I. Class definitions in similar strip-search class actions often exclude individuals with violence, drug or weapons-related charges. In this case, these subclass members will still receive some relief, which is a more generous result than similarly-situated individuals in other cases have received. This fact, coupled with the greater risk in establishing liability, makes the settlement for these members of Subclass II under the fourth and fifth Girsh factors fair, adequate and reasonable. There is similar support for the inclusion of individuals with preexisting felony or violence, drug or weapons-related misdemeanor convictions in Subclass II. At least one court has explicitly held that reasonable suspicion exists to strip-search all temporary detainees with prior records of felony or violence, drug or weapons misdemeanor-misdemeanor convictions. See Smith v. Montgomery County, Md., 643 F.Supp. 435, 439 (D.Md.1986) (“Reasonable suspicion also exists to strip search all temporary detainees with prior records of convictions or unresolved arrests for felony offenses, or for misdemeanors involving weapons or contraband”). Other courts have held that a detainee’s prior record is at least relevant in determining whether or not reasonable suspicion exists. For similar reasons to those charged with violence, drug or weapons-related crimes, then, individual class members who are included within this category also stand an increased risk of not establishing liability than the members of Subclass I. 2. The Complexity, Expense, and Likely Duration of the Litigation The first Girsh factor, the complexity, duration, and expense of the litigation, weighs towards settlement in this case. At trial, the plaintiffs would face the task of proving the unconstitutionality of the defendant’s policy, which would be complex," }, { "docid": "14847176", "title": "", "text": "April 21, 2003 and extends to, and includes, October 9, 2007. The Settlement Class is then divided into two Subclasses. Subclass I includes all persons in the Settlement Class except those who (1) were arrested for violence, drugs or weapons-related misdemeanor charges, (2) were charged with bench warrants or probation violations where the underlying charge was a violence, drugs or weapons-related misdemeanor charge, or (3) had convictions for felonies or violence, drugs or weapons-related misdemeanors. Subclass II includes all members of the Settlement Class excluded from Subclass I. 1. Analysis Under Rule 23(a) Federal Rule of Civil Procedure Rule 23(a) requires that four requirements be met in order for a to be certified: numerosity, commonality, typicality, and adequate representation. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The Court finds that the four requirements of Rule 23(a) are met. a. The Numerosity Requirement Rule 23(a)(1) requires a class to be so numerous that joinder of all members is impracticable. Classes exceeding forty or more class members are generally held to meet the numerosity requirement. See Stewart v. Abraham, 275 F.3d 220, 226-227 (3d Cir.2001). The Settlement Class consists of over 37,000 individuals. Currently, 5,400 of those individuals have submitted verified claims forms. Because joinder of such a large class is impracticable, the plaintiffs satisfy the numerosity requirement. b. The Commonality Requirement Rule 23(a)(2) requires that there are questions of law or fact common to the class. If class members share at least one question of law or fact in common, factual differences among the claims of the class members do not defeat certification. In re Prudential Ins. Co. America Sales Practice Litigation Agent Actions, 148 F.3d 283, 310 (3d Cir.1998) (In re Prudential). In this case, there is a legal issue common to all class members: whether the defendant’s blanket policy of strip-searching all detainees upon admission was constitutional. This satisfies the Rule 23(a)(2) commonality requirement. c. The Typicality and Adequacy Requirements Rule 23(a)(3) and (a)(4) require that the claims or defenses of the representative parties be typical of the claims" }, { "docid": "14847211", "title": "", "text": "of Civil Procedure, the following Settlement Class is certified for purposes of final settlement: Settlement Class: All persons who were placed into the custody of the Philadelphia Prison System after being charged with misdemeanors; summary offenses; traffic infractions, civil commitments, or other minor crimes; or bench warrants and/or probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime; and who were strip searched in the absence of reasonable suspicion upon their entry into the Philadelphia Prison System pursuant to the policy, custom and practice of the Philadelphia Prison System and the City of Philadelphia. The class period commences on April 21, 2003 and extends to, and includes, October 9, 2007. Subclass I: All persons in the Settlement Class, EXCEPT for persons who (1) were charged with certain violence, drug and/or weapons (hereinafter “VDW”) related misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission. Subclass II: All persons in the Settlement Class who were (1) charged with VDW misdemean- or charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission. 15. The Court finds that, for the purpose of this Settlement, the requirements of Rule 23 of the Federal Rules of Civil Procedure are satisfied, and that a class action is an appropriate method for resolving the disputes in this litigation. All the prerequisites for class certification under Rule 23 are present. The Class Members are ascertainable and too numerous to be joined. Questions of law and fact common to all Class Members predominate over individual issues and should be determined in one proceeding with respect to all Class Members. The Class Representatives’ claims are typical of those of the Class. The Class action mechanism is superior to alternative means" }, { "docid": "14847184", "title": "", "text": "each individual search would not be necessary to prove this claim. This has led many courts to conclude that the common question of the constitutionality of such a blanket strip-search policy as applied to members of classes similar to Subclass I meets the predominance requirement. Members of Subclass II would need to prove that the City’s policy was unconstitutional as applied to arrestees charged with violence, drug or weapons-related crimes or arrestees with a previous felony or violence, drug or weapons-related misdemeanor conviction. The members of this subclass must not only show that the City’s policy was unconstitutional as applied to all arrestees, but also that the City was constitutionally required to establish reasonable suspicion for each individual arrestee before conducting a search. This common question of whether individualized reasonable suspicion is constitutionally required predominates over any individual questions within this subclass. Within each subclass, then, a common issue predominates over any individual claims, and the elements of each claim can be proven with evidence common to all. The predominance requirement under Rule 23(b)(3) is therefore satisfied, b. The Superiority Requirement Under the superiority requirement, the court asks whether a class action, rather than individual litigation, is the best method for achieving a fair and efficient adjudication. See Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3d Cir.2001). A class action in this case saves the time, effort and expense of litigating the claims of as many as 37,000 class members individually and guarantees uniform treatment of individual class members within their respective subclasses. The parties have not identified, and the Court is not aware of, any other strip-search litigation involving PPS or the City of Philadelphia. Because it is generally desirable to concentrate many smaller claims into a single forum, a class action is appropriate in this case. A class action is the superior method for adjudicating this particular matter. Finding that the requirements of Rule 23(a) and Rule 23(b)(3) are met, the Court hereby certifies the class as presented by the parties. B. Notice Under Rule 23(c)(2)(B), notice must be given to potential class" }, { "docid": "17218114", "title": "", "text": "therefore not all post-intake searches are legal, see Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), it does not strike the Court as unreasonable or in way demonstrating plaintiffs’ inadequacy that their view of the proper award amounts has been shaped by the difficulty of proving damages where plaintiffs have been subjected to what may be a co-mingled set of legal and illegal official conduct. Thus, there is no substance to intervenorplaintiffs’ claims that plaintiffs have casually abandoned potentially valuable claims at the expense of absent class members, and any settlement in this case purporting to extinguish rights to pursue claims of illegal post-intake searches will not be approved. To prevent confusion, however, the Court will amend plaintiffs’ proposed class definition to “pre-trial detainees who, during the class period [July 15, 1999 through July 22, 2002], were arraigned on certain misdemeanors, violations, and misdemeanor charges of civil contempt, and non-felony warrants regarding same, and who, after arraignment, were strip-searched in DOC jails pursuant to the standard new admission strip search procedure. ” 2. Narrowing the Class Definition Intervenor-plaintiffs next argue that plaintiffs and their counsel have inadequately represented the class’s interests in that they agreed to narrow the original class definition to exclude misdemeanor arrestees charged with weapons or narcotics-related offenses, thus “cut[ing] [those individuals] loose to fend for themselves” in exchange for settlement. (Intervenor-P.Cert.Opp.Mem.13.) Plaintiffs concede that the class for which they now request certification was narrowed because defendants perceive the law as unsettled with regard to individuals charged with narcotics and weapons-related offenses and are unwilling to settle the claims of such individuals. Plaintiffs contend, however, that narrowing the class permitted them to obtain a fair settlement on behalf of the class they now seek to certify, their only obligation. (P. Cert. Reply Mem. 4-5.) Those detained on narcotics or weapons charges remain free to pursue their claims in a separate action, or via the presence in this case of intervenorplaintiffs charged on narcotics or weapons-related offenses. Indeed, intervenor-plaintiffs cannot make the direct argument that narrowing the class definition shows that plaintiffs" }, { "docid": "14847181", "title": "", "text": "members of their respective subclasses. Mr. Byrd who, represents Subclass I, was charged with a non-violence, drug or weapons-related misdemeanor and had no previous criminal history. Ms. Boone represents Subclass II. Although she was arrested for a nonviolence, drug or weapons-related crime, she had a criminal history involving violent crimes. Finally, class counsel in this case has substantial experience in litigating complex civil rights actions. They have served as class counsel in at least twenty strip-search class actions. Class counsel have also vigorously represented the class through four years of litigation, including discovery and motion practice. They fulfill the adequacy requirement of Rule 23(a). For these reasons, the Court finds that the four requirements of Rule 23(a), numerosity, commonality, typicality and adequacy, are met in this case. 2. Analysis Under Rule 23(b) Once a court determines that the requirements of Rule 23(a) are met, it must consider whether the action is maintainable under one of the three parts of Rule 23(b). The parties seek to have this class certified under Rule 23(b)(3). Rule 23(b)(3) allows certification only if the questions of law or fact common to class members predominate over any questions affecting only individual members and if a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. This is commonly broken out into the so-called “predominance” and “superiority” requirements. See In re: Ins. Brokerage Anti-trust Litigation, 579 F.3d at 258-59. Rule 23(b)(3) also provides a non-exhaustive list of factors to aid the court in determining whether a class action is the best method of adjudication: (1) the class members’ interests in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already begun by or against class members; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the likely difficulties in managing a class action. Although the fourth factor has been held to be not relevant in a settlement-only class certification, the other requirements of the rule “demand undiluted, even heightened, attention in the" }, { "docid": "14847194", "title": "", "text": "Subclass II. At least one court has explicitly held that reasonable suspicion exists to strip-search all temporary detainees with prior records of felony or violence, drug or weapons misdemeanor-misdemeanor convictions. See Smith v. Montgomery County, Md., 643 F.Supp. 435, 439 (D.Md.1986) (“Reasonable suspicion also exists to strip search all temporary detainees with prior records of convictions or unresolved arrests for felony offenses, or for misdemeanors involving weapons or contraband”). Other courts have held that a detainee’s prior record is at least relevant in determining whether or not reasonable suspicion exists. For similar reasons to those charged with violence, drug or weapons-related crimes, then, individual class members who are included within this category also stand an increased risk of not establishing liability than the members of Subclass I. 2. The Complexity, Expense, and Likely Duration of the Litigation The first Girsh factor, the complexity, duration, and expense of the litigation, weighs towards settlement in this case. At trial, the plaintiffs would face the task of proving the unconstitutionality of the defendant’s policy, which would be complex, expensive and, as discussed in more detail above, risky. These facts make settlement the best option under the first Girsh factor. 3. The Reaction of the Class to the Settlement ' The second factor, reaction of the class, also favors approval of the settlement. Out of over 37,000 potential class members, only three have formally objected. A low number of objectors compared to the number of potential class members creates a strong presumption in favor of approving the settlement. See In re Cendant Corp. Litigation, 264 F.3d 201, 234-35 (3d Cir.2001). Moreover, only five class members chose to opt out of the class. The fact that so few potential class members objected to or opted out of the settlement supports a finding of general acceptance of the settlement in the class. 4. The Stage of the Proceedings and the Amount of Discovery Completed The third factor, the stage of the proceeding and the amount of discovery, similarly weighs towards acceptance of the settlement. Post-discovery settlements are more likely to reflect the true value of the" } ]

[ { "docid": "22616766", "title": "", "text": "be persecuted on account of his religion were he to return to Pakistan. See Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992). The standard for withholding of removal is more stringent than the well-founded fear standard of asylum in that it requires the applicant to show a greater likelihood of persecution. See id. at 1258. But even for purposes of the less stringent asylum standard, the applicant must show more than the existence of a generalized or random possibility of persecution in his native country. See Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999). An applicant’s claim of persecution upon return is weakened, even undercut, when similarly-situated family members continue to live in the country without incident, see Mendez-Efrain v. INS, 813 F.2d 279, 282 (9th Cir.1987), or when the applicant has returned to the country without incident, see Belayneh v. INS, 213 F.3d 488, 491 (9th Cir.2000). Here, the State Department report indicates that of the 3.5 million Ahmadis in Pakistan, 145 Ahmadis are awaiting trial under the blasphemy laws, and that in 1998, 44 Ahmadis were charged under the blasphemy laws. Although unfortunate, this evidence does not compel the conclusion that Hakeem, more likely than not, will be arrested or persecuted under these laws. Hakeem contends that according to Koranic law, not Pakistani secular law, one is sentenced to death if one changes religions. This contention, however, does not change the fact that no one in Hakeem’s family has ever been charged, arrested, or physically harmed based on their Ahmadi faith. In addition, Hakeem has returned twice to Pakistan and practiced his faith without incident. Hakeem has not demonstrated that it is more likely than not that he will face physical harm upon return to Pakistan. Cf. Mgoian, 184 F.3d at 1038 (granting withholding petition where petitioner was member of prominent Kurdish-Moslem family, her uncle was murdered, a witness was harassed into silence, her mother was threatened with death, and she received threats directing her to leave the country). Accordingly, because the IJ’s decision denying withholding of removal is supported by substantial evidence, we deny the" } ]

[ { "docid": "22093616", "title": "", "text": "denied Raj’s application for withholding of removal because that standard is more difficult to meet than the asylum standard. He ruled that because Raj could not meet the lesser asylum standard, he necessarily could not meet the stricter standard for withholding of removal. Lastly, the IJ determined that Raj was not entitled to relief under CAT. The IJ cited his credibility ruling and further held that, even if Raj’s allegations were true, the harm that he had suffered at the police station did not rise to the level of torture as that term is defined under CAT. On December 13, 2002, the BIA affirmed the IJ’s decision without an opinion. Raj filed a motion to reopen, which the BIA denied. He subsequently petitioned for review of both rulings. This appeal consolidates the two petitions for review, although Raj’s brief does not address the denial of his motion to reopen. STANDARD OF REVIEW We review for substantial evidence the BIA’s decision that an applicant has not established eligibility for asylum. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). Under that standard, the BIA’s determination must be upheld if it is supported by reasonable, substantial and probative evidence from the record. Knezevic v. Ashcroft, 367 F.3d 1206, 1210-11 (9th Cir.2004); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (“[t]o reverse the BIA finding we must find that the evidence not only supports that conclusion, but compels it”). We also review under the substantial evidence standard the BIA’s decision that an applicant has not met the higher burden required for withholding of removal, Thomas v. Ashcroft, 359 F.3d 1169, 1174 (9th Cir.2004) reh’g en banc granted, 382 F.3d 1154 (9th Cir.2004), superceded sub nom. Thomas v. Gonzales, 409 F.3d 1177 (9th Cir.2005), and the findings underlying its decision that an applicant is not eligible for relief under CAT. Bellout v. Ashcroft, 363 F.3d 975, 979 (9th Cir.2004). Adverse credibility determinations are also reviewed under the substantial evidence standard. Tawadrus v. Ashcroft, 364 F.3d 1099, 1102 (9th Cir.2004). Where, as here, the BIA" }, { "docid": "22784755", "title": "", "text": "must file her application within one year after arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The limitations period will be tolled if the applicant can establish changed circumstances that materially affect her eligibility for asylum. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4)®. Contrary to the government’s argument, we have jurisdiction to review an agency’s changed circumstances determination. See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.2007) (per curiam) (holding that the Real ID Act restored jurisdiction over the “changed circumstances” question because this question involved the application of a statutory standard to undisputed facts). Petitioners argue that Sael v. Ashcroft, 386 F.3d 922 (9th Cir.2004), and Lolong v. Gonzales, 400 F.3d 1215 (9th Cir.2005) (“Lolong I”), rev’d, 484 F.3d 1173 (9th Cir.2007) (en banc) (“Lolong II”), constituted changed circumstances because they changed United States law in a way that materially affects their eligibility for asylum. 8 C.F.R. § 208.4(a)(4)(i)(B). We review the IJ’s changed circumstances determination for substantial evidence. See Ramadan, 479 F.3d at 657. Petitioners’ argument fails because both Sael and Lo-long were decided after petitioners filed their asylum applications. Accordingly, those decisions could not have tolled the one-year statute of limitations. We affirm the IJ’s denial of petitioners’ asylum application as untimely. IV. WITHHOLDING OF REMOVAL Unlike asylum, there is no statutory time limit for filing a withholding application. Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir.2004) (citing 8 U.S.C. § 1231(b)(3)). Accordingly, petitioners’ application for withholding of removal is not time-barred. Petitioners argue that the BIA erred by failing to apply disfavored group analysis to their withholding claim because Christians are a disfavored group in Indonesia. We agree and remand to the BIA to use the disfavored group analysis in determining whether petitioners are entitled to withholding of removal. A. Christians Are a Disfavored Group in Indonesia A “disfavored group” is “a group of individuals in a certain country or part of a country, all of whom share a common, protected characteristic, many of whom are mistreated, and a substantial number of whom are persecuted” but who are “not threatened by a" }, { "docid": "22607342", "title": "", "text": "on that ground. In the alternative,, he denied her application for asylum because she did not demonstrate a nexus between the mistreatment she suffered and a protected ground. The IJ found algo that the social group that Rosa-lina claimed to be a member of for refugee purposes was too broad. He further found that it was possible for Rosalina to relocate to Manila. He denied also her applications for withholding and CAT protection. The BIA reversed the adverse credibility finding, but otherwise affirmed the IJ. It found also that the IJ did not commit a due process violation when he denied Ro-salina’s motion to permit her relatives to testify by telephone. II STANDARD OF REVIEW We review findings of fact for substantial evidence. Li v. Ashcroft, 356 F.3d 1153, 1157 (9th Cir.2004) (en banc). To reverse the BIA’s finding that Rosalina did not demonstrate a nexus between the harm she suffered and a protected ground, the evidence must “not only support [] that conclusion, but compel [ ] it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Denial of relief under CAT is reviewed for substantial evidence. Bellout v. Ashcroft, 363 F.3d 975, 979 (9th Cir.2004). Ill DISCUSSION A. Past Persecution To be eligible for asylum, Rosalina must show that she is unwilling or unable to return to her country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “Once eligibility is established, it is within the Attorney General’s discretion to grant asylum.” Lopez-Galarza v. INS, 99 F.3d 954, 958 (9th Cir.1996). As a preliminary matter, the rape and physical abuse inflicted on Rosalina support a finding of past persecution under 8 U.S.C. § 1101(a)(42)(A). See id. at 959. Consequently, the issue before us is whether the record compels a conclusion that the NPA subjected Rosalina to past persecution on account of a protected ground. We hold that the record compels a conclusion that Rosalina was persecuted on account of an" }, { "docid": "21246857", "title": "", "text": "family home, it is not unreasonable to expect her to locate there. Thus, we conclude that there is substantial evidence to support the BIA’s determination that Ms. Kaharudin has not demonstrated that ethnic Chinese Christians face a pattern or practice of discrimination. However, in the alternative, Ms. Kaharu-din asserts that she is entitled to withholding of removal under the “disfavored group” analysis adopted by the Ninth Circuit. Under that analysis, the greater the risk to all members of a group, the less individual persecution need be shown in order to qualify for relief. See Sael v. Ashcroft, 386 F.3d 922, 925 (9th Cir.2004); Kotasz v. INS, 31 F.3d 847, 852-54 (9th Cir.1994). The Ninth Circuit has deemed ethnic Chinese a disfavored group in Indonesia, see Sael, 386 F.3d at 927, and Ms. Kaharudin urges this court to do the same. We previously have considered and rejected the application of the Ninth Circuit’s “disfavored group” analysis in the context of withholding of removal, and we decline to revisit the issue in this case. See Firmansjah v. Gonzales, 424 F.3d 598, 607 n. 6 (7th Cir.2005); see also Lie v. Ashcroft, 396 F.3d 530, 538 n. 4 (3d Cir.2005) (declining to adopt the Ninth Circuit’s “disfavored group” analysis). Conclusion The denial of Ms. Kaharudin’s applications for asylum and withholding of removal was supported by substantial evidence. Therefore, we deny Ms. Kaharudin’s petition for review and affirm the order of the BIA. Petition Denied ORDER Affirmed . Ms. Kaharudin refers to these individuals as \"native Indonesians.” For ease of discussion, we shall do the same. . Ms. Kaharudin was seventeen years old when she arrived in the United States. She turned eighteen in December of 1998, before her visa expired and more than two years before applying for asylum. . Ms. Kaharudin does not challenge the denial of her request for CAT relief. . Ms. Kaharudin relies primarily upon the Fifth Circuit's decision in Eduard v. Ashcroft, 379 F.3d 182, 192 (5th Cir.2004), to support her \"pattern or practice” claim. In Eduard, the court concluded that persecution against Chinese Christians was so widespread" }, { "docid": "22713554", "title": "", "text": "the BIA’s decision, the petition is timely. 8 U.S.C. § 1252(b)(1). Where, as here, the BIA issued a decision on the merits and not simply a summary affirmance, we review the BIA's, not the IJ's, decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001). We must uphold the BIA’s factual findings if they are \"supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 480, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We should find substantial evidence lacking only where the evidence \"was so compelling that no reasonable factfinder could fail to find the alien eligible for asylum or withholding of removal.” Id. at 483-84, 112 S.Ct. 812; see also 8 U.S.C. § 1252(b)(4)(B); Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001). . In Sael v. Ashcroft, 386 F.3d 922 (9th Cir.2004), the Ninth Circuit found that an ethnically Chinese citizen of Indonesia established a well-founded fear of persecution. In Sael, the panel did not find sufficient evidence of a \"pattern or practice\" of persecution of Chinese Christians in Indonesia, but rather required a lower level of individualized fear of future persecution because Chinese Christians were at least a \"disfavored group.” Id. at 925-27. A group may be deemed \"disfavored” on the basis of evidence of mistreatment that is less pervasive and less severe than would be required to establish a \"pattern or practice” of persecution, although \"the 'more serious and widespread the threat' to the group in general, 'the less individualized the threat of persecution needs to be.' \" Id. at 925 (quoting Mgoian v. INS, 184 F.3d 1029, 1035 n. 4 (9th Cir.1999)). We disagree with the Ninth Circuit's use of a lower standard for individualized fear absent a \"pattern or practice” of persecution and, similarly, we reject the establishment of a \"disfavored group” category." }, { "docid": "22160720", "title": "", "text": "must conclude that Loho has produced insufficient evidence to compel the conclusion that she suffered past persecution or has a well-founded fear of future persecution in Indonesia. Kohli v. Gonzales, 473 F.3d 1061, 1071-72 (9th Cir.2007). III Because Loho’s asylum claim fails, she necessarily cannot satisfy the more stringent standard of proof required to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Moreover, in light of the IJ’s adverse credibility finding, we are satisfied that substantial evidence supports denial of Loho’s claim under CAT. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003) (noting that relief under CAT requires a showing that “it is ‘more likely than not’ that [the petitioner] will be tortured if returned to [his native land]” (quoting 8 C.F.R. § 208.16(c)(2))); see also Farah, 348 F.3d at 1157 (noting that “[the petitioner’s] claims under the Convention Against Torture are based on the same statements ... that the BIA determined to be not credible”). rv For the foregoing reasons, the petition for review is DENIED." }, { "docid": "21246858", "title": "", "text": "Gonzales, 424 F.3d 598, 607 n. 6 (7th Cir.2005); see also Lie v. Ashcroft, 396 F.3d 530, 538 n. 4 (3d Cir.2005) (declining to adopt the Ninth Circuit’s “disfavored group” analysis). Conclusion The denial of Ms. Kaharudin’s applications for asylum and withholding of removal was supported by substantial evidence. Therefore, we deny Ms. Kaharudin’s petition for review and affirm the order of the BIA. Petition Denied ORDER Affirmed . Ms. Kaharudin refers to these individuals as \"native Indonesians.” For ease of discussion, we shall do the same. . Ms. Kaharudin was seventeen years old when she arrived in the United States. She turned eighteen in December of 1998, before her visa expired and more than two years before applying for asylum. . Ms. Kaharudin does not challenge the denial of her request for CAT relief. . Ms. Kaharudin relies primarily upon the Fifth Circuit's decision in Eduard v. Ashcroft, 379 F.3d 182, 192 (5th Cir.2004), to support her \"pattern or practice” claim. In Eduard, the court concluded that persecution against Chinese Christians was so widespread in Indonesia as to constitute a \"pattern or practice” of persecution, such that the applicant for asylum was not required to show that he had been targeted personally. Id. at 192. However, in Eduard, the Fifth Circuit did not address the question of whether the Indonesian government was complicit in or unwilling or unable to prevent violence against ethnic Chinese Christians. As we already have stated, harm at the hands of private persons cannot constitute persecution without such a showing. We note also that each of the other circuits to address the issue has declined to find a pattern or practice of persecution of Christian Indonesians of Chinese descent. See Lolong v. Gonzales, 484 F.3d 1173, 1180-81 (9th Cir.2007) (en banc) (holding that the petitioner had failed to demonstrate a pattern or practice of persecution of ethnic Chinese Christians because the Indonesian government did not perpetrate the discrimination and had \"taken concrete steps to suppress ethnic and religious violence”); Tolego v. Gonzales, 452 F.3d 763, 766 (8th Cir.2006) (noting the absence of evidence of acquiescence" }, { "docid": "22713553", "title": "", "text": "Lie has not raised any argument regarding the denial of her CAT claim except by mentioning the Convention in her concluding paragraph; nor did she rebut the govern-merit's argument that she has waived this issue in her reply brief or at oral argument. As such, we deem her appeal of the CAT claim to have been waived. See Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir.1993) (holding that absent \"extraordinary circumstances” appellant must present an argument in support of each issue raised on appeal or such issues are abandoned and waived). . The BIA seems to have conflated Lie's testimony about the earlier robbery of her husband’s store with her testimony about the subsequent break-in and robbery at her home. This mistake, however, does not appear to undermine the outcome of the BIA's reasoning. . We have jurisdiction to review final, orders of the Board of Immigration Appeals under section 242(a)(1) of the Immigration arid Nationality Act, 8 U.S.C. § 1252(a)(1) (1999). As the petition for judicial review was filed within thirty days of the BIA’s decision, the petition is timely. 8 U.S.C. § 1252(b)(1). Where, as here, the BIA issued a decision on the merits and not simply a summary affirmance, we review the BIA's, not the IJ's, decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001). We must uphold the BIA’s factual findings if they are \"supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 480, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We should find substantial evidence lacking only where the evidence \"was so compelling that no reasonable factfinder could fail to find the alien eligible for asylum or withholding of removal.” Id. at 483-84, 112 S.Ct. 812; see also 8 U.S.C. § 1252(b)(4)(B); Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001). . In Sael v. Ashcroft, 386 F.3d 922 (9th Cir.2004), the Ninth Circuit found that an ethnically Chinese citizen of Indonesia established a well-founded fear of persecution. In Sael, the panel did" }, { "docid": "11068056", "title": "", "text": "she had failed to show that the threat existed in all parts of Indonesia. II DISCUSSION Ms. Ingmantoro submits that the BIA erred in denying her application for asylum and that she has met her burden for establishing both a claim for withholding of removal and a claim for CAT relief. We review the IJ’s decision, as supplemented by the BIA’s opinion. See Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir.2008). We shall uphold the denial of relief if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). In other words, “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812; Chatta v. Mukasey, 523 F.3d 748, 752 (7th Cir.2008). An asylum applicant who proves past persecution is entitled to a rebuttable presumption that she has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1); see also Haxhiu v. Mukasey, 519 F.3d 685, 690 (7th Cir.2008). Ms. Ingmantoro first submits that her testimony, which the IJ credited, and the evidence she presented establish past persecution. She contends that she was the real target of the men who burned down her father’s store. We have defined persecution as the “ ‘punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate.’ ” Zeqiri v. Mukasey, 529 F.3d 364, 370 (7th Cir.2008) (quoting DeSouza v. INS, 999 F.2d 1156, 1158 (7th Cir.1993)). The IJ rejected Ms. Ingmanto-ro’s past-persecution claim because she did not suffer any harm in the incident at her father’s store and because she could not claim derivative persecution from the harm suffered by her father. At the outset, we have significant reservations as to whether this claim can be characterized as “derivative.” In a derivative claim, the petitioner typically is seeking relief because she has shared in the harm leveled at a family member" }, { "docid": "22884087", "title": "", "text": "of race, religion, nationality, membership in a particular social group, or political opinion.” If an applicant proves that he or she is the victim of past persecution, then a presumption arises of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13. Where an applicant is unable to establish past persecution, the applicant may nevertheless be entitled to relief if he or she proves the existence of a well-founded fear of future persecution — i.e., a fear that is both subjectively genuine and objectively reasonable. Knezevic v. Ashcroft, 367 F.3d 1206, 1213 (9th Cir.2004). “Even a ten percent chance that the applicant will be persecuted in the future is enough to establish a well-founded fear.” Id. The BIA’s factual determination that an alien is ineligible for asylum is reviewed under the substantial evidence standard. Mgoian v. INS, 184 F.3d 1029, 1034 (9th Cir.1999); Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.1999). The court “must sustain factual findings if supported by reasonable, substantial, and probative evidence in the record.” Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003). The test for reversal of an agency finding of ineligibility is whether the evidence presented “was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). See also Mgoian, 184 F.3d at 1034 (“we reverse only if the evidence presented to the BIA was so compelling that no reasonable trier of fact could fail to find the requisite fear of persecution.”). To prevail on a withholding of deportation claim, an applicant must show that there is a clear probability of persecution if he or she returns. Arteaga v. INS, 836 F.2d 1227(9th Cir.1988). Because the asylum standard is more lenient, a petitioner’s failure to establish eligibility for asylum forecloses the availability of withholding of deportation relief. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). III Petitioners challenge the deportation order claiming that the BIA erred in (1) failing to find a pattern or practice of persecution against individuals such as" }, { "docid": "22694950", "title": "", "text": "that the German police investigated the complaints, but were ultimately unable to solve the crimes. The IJ found Nahrvani’s testimony to be credible. Based on Nahrvani’s testimony, the IJ determined that, due to his Christian beliefs, Nahrvani would face persecution if returned to Iran. Although the IJ denied Nahrvani’s asylum claim because he was firmly resettled in Germany, the IJ granted Nahrvani’s request for withholding of removal and CAT relief from Iran. The IJ denied Nahrvani’s request for asylum from Germany on the basis that Nahrvani had failed to establish a well-founded fear of future persecution in Germany. Specifically, the IJ determined that Nahrvani had not established that the German government was unwilling or unable to protect him from the alleged persecution. For similar reasons, the IJ denied Nahrvani’s requests for withholding of removal and CAT relief. The BIA affirmed the IJ’s denial of asylum without opinion. Nahrvani filed a timely petition for review. II. STANDARDS OF REVIEW Because the BIA affirmed the IJ’s ruling without an opinion, the IJ’s decision is the final agency action for purposes of this appeal. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.2003). The IJ’s determination that Nahrvani is ineligible for asylum “can be reversed only if the evidence presented by [Nahrvani] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted). To reverse the IJ’s finding, we “must find that the evidence not only supports that conclusion, but compels it[.]” Id. at 481 n. 1, 112 S.Ct. 812. To that end, “[t]he [IJ’s] decision need only be supported by substantial evidence.” Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 998 (9th Cir.2003) (citation omitted). “This is a highly deferential standard of review.” Marcu v. INS, 147 F.3d 1078, 1080-81 (9th Cir.1998). III. DISCUSSION A. Iran Nahrvani bears the burden of proof with respect to his eligibility for asylum from Iran. 8 C.F.R. § 1208.13(a). An application for asylum must be denied if the alien has firmly resettled in another" }, { "docid": "22683750", "title": "", "text": "of one of five protected grounds. 8 U.S.C. §§ 1158(b)(1) and 1101(a)(42)(A). A well-founded fear must be subjectively and objectively reasonable. Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999); Montecino v. INS, 915 F.2d 518, 521 (9th Cir.1990). The subjective prong is satisfied upon credible testimony that the applicant genuinely fears harm. Singh v. Moschorak, 53 F.3d 1031, 1034 (9th Cir.1995). The objective prong may be satisfied “ ‘in one of two ways: either by establishing that she has suffered persecution. in the past or by showing that she has a good reason to fear future persecution.’ ” Sael v. Ashcroft, 386 F.3d 922, 924-925(9th Cir.2004) (quoting Mgoian, 184 F.3d at 1035). A person who establishes that he or she was subjected to persecution in the past is entitled to a presumption of a well-founded fear of future persecution. Popova v. INS, 273 F.3d 1251, 1259 (9th Cir.2001). Otherwise, an applicant must generally show an individualized, rather than a generalized, risk of persecution. Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003). This may be demonstrated in several ways, either by establishing “a pattern or practice of persecution of persons similarly situated,” or by showing membership in a “disfavored group” coupled with a showing that the individual is likely to be “targeted” for persecution as a member of that group. Sael, 386 F.3d at 925. Next, the person seeking relief must also show that the feared persecution is being carried out “on account of’ one of the five protected grounds enumerated in the statute, including “membership in a particular social group.” See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). This may be established by direct or circumstantial evidence. Sangha v. INS, 103 F.3d 1482, 1486-87 (9th Cir.1997). We have recently reaffirmed that “family membership may constitute membership in a ‘particular social group.’ ” Thomas v. Gonzales, 409 F.3d 1177, 1180 (9th Cir.2005) (en banc). Specifically, we held that white South African family members who were “targeted on account of their shared, immutable, characteristic, namely, their familial relationship” with a hated boss met" }, { "docid": "22784767", "title": "", "text": "CAT claim. See, e.g., Husyev v. Mukasey, 528 F.3d 1172, 1183 (9th Cir.2008) (concluding that the petitioner waived CAT claim by failing to advance any arguments in favor of relief); Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (concluding that petitioner waived a claim that was referenced in the statement of the case, but not discussed in the body of the opening brief). . Furthermore, neither Sael nor Lolong I materially affected petitioners’ eligibility for asylum. The panel’s decision in Lolong I is not precedential because it was vacated, reheard en banc, and not adopted in Lolong II. See 9th Cir. R. 35-3, Advisory Note 3(\"The three-judge panel opinion shall not be cited as precedent ..., except to the extent adopted by the en banc court.”). Moreover, the holding in Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), that the ethnic Chinese minority in Indonesia are a disfavored group, does not apply here because petitioners are not ethnically Chinese. In addition, disfavored group analysis existed well before we decided Sael. See Wakkary v. Holder, 558 F.3d 1049, 1062-63 (9th Cir.2009) (reviewing the development of \"disfavored group” analysis beginning with Kotasz v. INS, 31 F.3d 847 (9th Cir. 1994)). Therefore, Sael does not constitute a changed circumstance that materially affects petitioners’ eligibility for asylum. . Two avenues are available for establishing eligibility for withholding of removal: (1) past persecution, which creates a presumption of eligibility for withholding of removal; and (2) a clear probability of future persecution. See 8 C.F.R. § 208.16(b); see also Al-Harbi v. INS, 242 F.3d 882, 888-89 (9th Cir.2001) (discussing the \"clear probability standard” for withholding of removal). A clear probability of future persecution may be established in one of two ways. First, the applicant may demonstrate that it is more likely than not that she will be singled out individually for persecution on account of a protected ground. See 8 C.F.R. § 1208.16(b)(2). Second, in the absence of any individualized targeting, the applicant may demonstrate that she is a member of a group that is subject to a \"pattern or practice of persecution” in" }, { "docid": "11068055", "title": "", "text": "A.R. at 27-28. The IJ found that Ms. Ingmantoro suffered no harm in the incident at her father’s store and that the harm suffered by her father was not very great; her father was able to relocate to another city in Indonesia and is considering starting a new business. The IJ also questioned Ms. Ingmantoro’s explanation as to why the men were looking for her in the first place and held that she had not demonstrated that she would be harmed if she returned to Indonesia. In addition, the IJ held that Ms. Ing-mantoro had failed to show that the Indonesian government was unwilling or unable to prevent the threats and violence against her. The IJ concluded that, given the general conditions in Indonesia, Ms. Ing-mantoro had not demonstrated a well-founded fear of future persecution. Finally, the IJ denied her requests for withholding of removal and CAT relief. Ms. Ingmantoro appealed to the BIA, which affirmed on all grounds. In addition, the BIA concluded that, even if Ms. Ing-mantoro had demonstrated a threat of persecution, she had failed to show that the threat existed in all parts of Indonesia. II DISCUSSION Ms. Ingmantoro submits that the BIA erred in denying her application for asylum and that she has met her burden for establishing both a claim for withholding of removal and a claim for CAT relief. We review the IJ’s decision, as supplemented by the BIA’s opinion. See Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir.2008). We shall uphold the denial of relief if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). In other words, “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812; Chatta v. Mukasey, 523 F.3d 748, 752 (7th Cir.2008). An asylum applicant who proves past persecution is entitled to a rebuttable presumption that she has a well-founded fear of" }, { "docid": "22745629", "title": "", "text": "egregious the showing of group persecution — the greater the risk to all members of the group — the less evidence of individualized persecution must be adduced” to meet the objective prong of a well-founded fear showing. Id. (emphases added); see also Mgoian, 184 F.3d at 1035 n. 4. Since Kotasz, we have found petitioners from a number of groups to have established that they are members of disfavored groups for asylum purposes. See, e.g., El Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir.2004) (stateless Palestinians born in Kuwait); Hoxha v. Ashcroft, 319 F.3d 1179, 1182-83 (9th Cir.2003) (ethnic Albanians in Kosovo); Singh v. INS, 94 F.3d 1353, 1359-60 (9th Cir.1996) (ethnic Indians in Fiji). We first applied disfavored group analysis to the asylum claim of a member of Indonesia’s Chinese Christian minority in Sael v. Ashcroft, 386 F.3d 922 (9th Cir.2004). In Sael, we found that the record evidence, documenting centuries of popular and official discrimination against the Chinese and Christian minorities in Indonesia, “estabhshe[d] that ethnic Chinese are significantly disfavored in Indonesia.” 386 F.3d at 927. Accordingly, Sael, as a Chinese Christian woman, had to “demonstrate a ‘comparatively low' level of individualized risk in order to prove that she ha[d] a well-founded fear of future persecution.” Id. We concluded that Sael met her burden of showing individualized risk by adducing evidence of her past personal experiences of threats, vandalism, and threatened violence by native Indonesians. Id. at 927-29. These experiences, “even [though] not sufficient to compel a finding of past persecution,” were “indicative of individualized risk [of future harm].” Id. at 928-29. When viewed in the context of the country-conditions evidence of widespread discrimination against Chinese Christians, Sael’s evidence of individualized risk compelled the conclusion that her own fear of future persecution was objectively well-founded. Id. at 929. ii The application of disfavored group analysis to withholding claims Until today, we have applied the disfavored group approach only to asylum claims. In Sael, we expressly reserved the question whether this mode of analysis is applicable in the context of withholding of removal claims as well. Sael, 386" }, { "docid": "22160719", "title": "", "text": "was put on notice of the possibility of staying in the United States by her cousin, yet when Loho learned that her cousin was too busy to assist her, she failed to take any additional steps to avoid returning to Indonesia. We are persuaded that Loho’s two voluntary returns to her home country support the IJ’s adverse credibility finding even though she was not specifically aware of the possibility of applying for asylum. What cuts against Loho’s credibility is not that she failed to submit an asylum application during her previous visits, but that after leaving her home country for the safety of the United States, Loho took minimal steps to investigate the availability of some means of avoiding a return to the country she claims to have feared. In light of the “extremely deferential” review of an IJ’s decision that applies, see Wang v. INS, 352 F.3d 1250, 1257 (9th Cir.2003), such evidence is sufficient to support the IJ’s adverse credibility finding. See Don v. Gonzales, 476 F.3d 738, 743 (9th Cir.2007). Accordingly, we must conclude that Loho has produced insufficient evidence to compel the conclusion that she suffered past persecution or has a well-founded fear of future persecution in Indonesia. Kohli v. Gonzales, 473 F.3d 1061, 1071-72 (9th Cir.2007). III Because Loho’s asylum claim fails, she necessarily cannot satisfy the more stringent standard of proof required to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Moreover, in light of the IJ’s adverse credibility finding, we are satisfied that substantial evidence supports denial of Loho’s claim under CAT. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003) (noting that relief under CAT requires a showing that “it is ‘more likely than not’ that [the petitioner] will be tortured if returned to [his native land]” (quoting 8 C.F.R. § 208.16(c)(2))); see also Farah, 348 F.3d at 1157 (noting that “[the petitioner’s] claims under the Convention Against Torture are based on the same statements ... that the BIA determined to be not credible”). rv For the foregoing reasons, the petition for review" }, { "docid": "22707527", "title": "", "text": "In addition, the IJ noted that Halim has a sibling who has remained in Indonesia, attends church, has a “significant job.” There was no indication of any particular incidents against the sibling. Finally, the IJ observed that Halim claimed that he was not involved in political activity and had no problems obtaining a passport and leaving the country. The IJ denied Halim relief, but granted him the privilege of voluntary departure. Halim appealed to the Board of Immigration Appeals (“BIA”), which affirmed the IJ’s decision without an opinion. Halim then filed a timely petition for review of the BIA’s order by this court. Ill Where, as here, the BIA affirms an IJ’s decision without an opinion, we review the IJ’s decision as if it were the BIA’s decision. De Mercado v. Mukasey, 566 F.3d 810, 814 n. 1 (9th Cir.2009) (citing Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003)); see also Renteria-Morales v. Mukasey, 551 F.3d 1076, 1081 (9th Cir.2008) (noting that “where the BIA summarily affirms the holding of the IJ without opinion, we review the IJ’s decision as the final agency determination”). Legal determinations are reviewed de novo. Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1126-27 (9th Cir.2007). The substantial evidence standard governs adverse credibility findings and all other factual findings. See Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.2006); Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). “Under the substantial evidence standard, ‘administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Zehatye, 453 F.3d at 1185 (quoting 8 U.S.C. § 1252(b)(4)(B)). “[W]e must uphold the IJ’s determination if it is supported by reasonable, substantial, and probative evidence in the record.” Id. (citing INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). IV On appeal, Halim essentially raises three issues: (1) whether the IJ’s conclusion that Halim’s reported incidents of harassment do not constitute persecution is supported by substantial evidence; (2) whether the IJ’s conclusion that Halim does not have a well-founded fear of future persecution is supported by substantial" }, { "docid": "7599568", "title": "", "text": "The Department of Homeland Security (“DHS”) placed the petitioner and her family in removal proceedings on February 21, 2006. Petitioner conceded removability. On May 18, 2007, the IJ held a hearing on the merits of Sugiarto’s application. In an oral decision issued that day, the IJ found that petitioner testified credibly but that her testimony as to the attempted robbery and the bomb threat in Indonesia failed to establish harm sufficiently severe as to rise to the level of “past persecution.” Moreover, the IJ found that nothing in the record established a nexus between these incidents and petitioner’s status as a Christian. The IJ further found that petitioner failed to show a well-founded fear of future persecution in that petitioner has not shown that she and her family were specifically singled out on account of their religion, nor that there is a “pattern or practice” of persecution against Christians in Indonesia. The IJ thus denied the petitioner’s applications for asylum, withholding, and CAT relief, but granted voluntary departure to Sugiarto and Jeisy. Sugiarto timely appealed to the BIA, which, in an order issued October 20, 2008, affirmed the IJ’s reasoning and decision, and dismissed the appeal. This petition for review followed. II. Discussion A. Standard of Review This court has appellate jurisdiction over petitions for judicial review from the BIA under 8 U.S.C. § 1252. “Review of legal rulings is de novo but is deferential as to findings of fact and the determination as to whether the facts support a claim of persecution.” Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir.2008). We review fact-based determinations under a “substantial evidence” standard, which requires that we must affirm provided that the BIA’s decision is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)); see also 8 U.S.C. § 1252(b)(4)(B). Unless the record compels a contrary conclusion, evidence in the record supporting a conclusion contrary to that reached by the BIA is not" }, { "docid": "22663341", "title": "", "text": "of future persecution. Likewise, he denied withholding of removal on the ground that Zehatye did not demonstrate a clear probability or real likelihood that she would be persecuted if she returned to Eritrea. Additionally, he found no evidence of torture to support a claim for relief under CAT. The BIA summarily affirmed and Zehatye filed this timely appeal, which challenges only the denial of asylum and withholding of removal. When the BIA summarily affirms the IJ’s decision, we review the IJ’s decision as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). The decision that an alien has not established eligibility for asylum or withholding of removal is reviewed for substantial evidence. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). Under the substantial evidence standard, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we must uphold the IJ’s determination if it is supported by reasonable, substantial, and probative evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). III. A. Asylum Zehatye claims that she is eligible for asylum because she was persecuted in Eritrea on account of her religion. To qualify for asylum, an applicant must demonstrate that he or she has suffered past persecution or has a well-founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b). Specifically, an alien is eligible for asylum if he or she can show past persecution on account of [race, religion, nationality, membership in a particular social group, or political opinion]. Once past persecution is demonstrated, then fear of future persecution is presumed, and the burden shifts to the government to show, by a preponderance of the evidence, that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution, or the applicant could avoid future persecution by relocating to another part of the applicant’s country. An applicant may also qualify for asylum by actually showing a well-founded fear of future persecution," }, { "docid": "6531144", "title": "", "text": "of her political opinion, her Creole ethnicity, or her family affiliation. The BIA affirmed the IJ’s decision in a brief opinion and noted that it agreed with the reasoning underlying the IJ’s conclusions that the respondent failed to satisfy her burden of proof for proving eligibility for asylum or withholding of removal. It further held that Pieterson had not established eligibility for relief under the CAT because she had not shown that it was more likely than not that she would be harmed “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” if returned to Sierra Leone. The BIA noted that the existence of a pattern of severe violations of human rights does not in itself constitute a sufficient ground for concluding that a particular person would be in danger of being subjected to torture as defined by the CAT. III. We review the BIA’s denial of Piet-erson’s asylum claim under the deferential substantial evidence standard. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Albathani v. INS, 318 F.3d 365, 372 (1st Cir.2003). The BIA’s finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it. Elias-Zacarias, 502 U.S. at 481 & n. 1, 112 S.Ct. 812; Albathani, 318 F.3d at 372. An asylum applicant bears the burden of establishing that she fits within the statutory definition of refugee, 8 U.S.C. § 1101(a)(42)(A), and thus qualifies for asylum consideration. 8 C.F.R. § 208.13(a). Carrying that burden involves proving “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see 8 C.F.R. § 208.13(b); Khem v. Ashcroft, 342 F.3d 51, 53 (1st Cir.2003). To establish a well-founded fear of future persecution based on one . of the five statutory grounds, an asylum applicant must demonstrate that her fear of persecution is both genuine and objectively reasonable. Khem, 342 F.3d at 53; Guzman v. INS, 327 F.3d 11, 16 (1st" } ]

[ { "docid": "17661773", "title": "", "text": "protected group. HUD claims that it met this burden by showing that Mountain Side’s three-person rule disproportionately excludes families with three children. The FHA prohibits discrimination in housing on the basis of familial status. 42 U.S.C. § 3604. Discrimination may occur either by disparate treatment or disparate impact. Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 (10th Cir.1995). A claim of disparate impact, unlike a claim of disparate treatment, does not require a finding of intentional discrimination. Indeed, “the necessary premise of the disparate impact approach is that some [housing] practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987, 108 S.Ct. 2777, 2785, 101 L.Ed.2d 827 (1988) (Title VII employment discrimination); Drake v. City of Fort Collins, 927 F.2d 1156, 1161 (10th Cir.1991) (Title VII). To establish a prima facie case of disparate impact discrimination, plaintiffs must show that a specific policy caused a significant disparate effect on a protected group. Ortega v. Safeway Stores, Inc., 943 F.2d 1230,1242 (10th Cir.1991). In Title VII employment discrimination cases, plaintiffs may rely solely on a statistical showing of disparate effect to establish a prima facie case of disparate impact. However, this circuit has not decided whether discriminatory effect alone is sufficient to establish a prima facie case of disparate impact in Title VIII housing discrimination cases. Here, the Secretary relied on national statistics to establish a case of disparate effect. The Secretary presented national statistics showing that “at least 71.2% of all U.S. households with four or more persons contain one or more children under the age of 18 years; that at least 50.5% of U.S. families with minor children have four or more individuals; and that at most 11.7% of households without minor children have four or more persons” to determine that the plaintiffs had proven discriminatory effect. (Secretary’s Second Remand at 7). In his Initial Decision and Order, the ALJ found that there “... is no evidence that statistics which establish the percentage of families with minor children nationwide are the" } ]

[ { "docid": "18651227", "title": "", "text": "sought to discriminate was not a racial class but was, instead, the class of social misfits who are ordinarily shunned by any community which is concerned with protecting its quality of life. No racial animus existed in the adoption of the residency requirement. See United States v. West Peachtree Tenth Corp., 437 F.2d 221, 223-24 (5th Cir. 1971) (dictum) (recognizing the appropriateness of policies against admission of drunks, hippies, and other undesirables of any race as not contravening § 3604 so long as policy is not a smoke screen for unlawful discrimination). . Every court of appeals which has dealt with the requirements of a prima facie case under § 3604 has adopted the effects test. E. g., Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir. 1979) (In an action brought by an individual plaintiff, the court reasoned that the only role which discriminatory motivation played in a § 3604 action occurred when a defendant attempted to rebut an individual plaintiffs prima facie case.); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 146-48 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 1458, 55 L.Ed.2d 499 (1978); Smith v. Anchor Bldg. Corp., 536 F.2d 231, 233 (8th Cir. 1976); United States v. City of Black Jack, 508 F.2d 1179, 1184-85 (8th Cir. 1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975); United States v. Youritan Construction Co., 370 F.Supp. 643, 648 (N.D.Cal.1973), aff’d in part, 509 F.2d 623 (9th Cir. 1975). . 24 C.F.R. § 841.115(c)(5) (HEW regulations regarding residency requirements). . See e. g., Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1040-43 (2d Cir. 1979) (suggested approach when looking for intent in cases brought under Fair Housing Act); Hawkins v. Town of Shaw, 461 F.2d 1171, 1172 (5th Cir. 1972) (en banc) (per curiam)." }, { "docid": "11035955", "title": "", "text": "effect. Although the Sixth Circuit has stated that discriminatory impact may be sufficient to violate the FHA, Arthur v. Toledo, 782 F.2d 565 (6th Cir.1986), discriminatory impact cases generally involve facially neutral policies or laws that have a significant statistical effect of disfavoring members of a protected class. See Southend Neighborhood Improv. Ass’n v. County of St. Clair, 743 F.2d 1207, 1209 (7th Cir.1984) (noting that not every action which produces discriminatory effects is illegal); Betsey v. Turtle Creek Associates, 736 F.2d 983 (4th Cir.1984) (noting statistical impact of new all-adult policy); Bronson v. Crestwood Lake Section 1 Holding Corp., 724 F.Supp. 148, 154-55 (S.D.N.Y.1989) (holding that rental policies had statistically disproportionate impact). See also Robert G. Schwemm, Housing Discrimination Law and Litigation § 10.4(2)(b) (1991) (“Schwemm”). Here, in contrast, there is no policy or law at issue. Rather, Plaintiffs complain about a single allegedly discriminatory transaction. As such, the scope of this case is too narrow to qualify as one involving a discriminatory impact. The Court will review Plaintiffs’ § 3604(f)(1) claim ás a discriminatory intent claim. In analyzing claims of discriminatory intent, courts often borrow from the analysis used in Title VII eases. Selden Apartments v. U.S. Dept. of Housing & Urban Dev., 785 F.2d 152, 159 (6th Cir.1986); Shaw v. Cassar, 558 F.Supp. 303, 312 (E.D.Mich.1983); Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1036-37 (2d Cir.1979). Under the analysis established by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 801-05, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), the plaintiff must initially establish a prima facie showing of discrimination. If he establishes a prima facie case, the defendant must respond with a legitimate, nondiscriminatory reason for the denial of housing. If the defendant does so, the plaintiff must then prove that that reason is pretextual. Id. The Court will adopt the basic approach of the McDonnell Douglas Court and will determine whether Plaintiffs have established a prima facie case of discrimination against Defendants. In Hamilton v. Svatik, 779 F.2d 383 (7th Cir.1985), the Seventh Circuit established a test for determining whether" }, { "docid": "2819734", "title": "", "text": "relief’). The Court further finds that monetary damages would be inadequate to compensate the other plaintiffs for their inability to provide housing to recovering drug and alcohol addicts who need it to sustain their recovery. Thus, the Court concludes that plaintiffs have shown irreparable harm. B. LIKELIHOOD OF SUCCESS ON THE MERITS: FAIR HOUSING ACT Plaintiffs argue that the town’s attempt to stop the operation of the three group homes violates plaintiffs’ rights under the FHA in three ways. Section 3604(f)(1) makes it unlawful to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of— (A) that buyer or renter, (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available, or (C) any person associated with that buyer or renter. Plaintiffs claim two violations of this provision. First, plaintiffs may show that section 3604(f)(1) was violated by presenting evidence of “discriminatory intent” on the part of the defendants. The evidence must show that the handicapped status of the residents of the group homes was one factor, but not necessarily the sole factor, in defendants’ zoning decisions. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450 (1977); Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1042 (2d Cir.1979); Stewart B. McKinney, 790 F.Supp. at 1210-11. Plaintiffs also claim a violation of this provision using a “disparate impact analysis.” This method “considers whether the effect of a defendant’s action is unnecessarily discriminatory even though plaintiff does not show an intent to discriminate.” Stewart B. McKinney, 790 F.Supp. at 1211, citing Metropolitan Hous. Dev. Corp. v. Village of Arlington Heights 558 F.2d 1283, 1290 (7th Cir.1977), cert. denied 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978). See also H.R.Rep. No. 711, 100th Cong., 2d Sess. 24 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2185. (“The Act is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or" }, { "docid": "17075722", "title": "", "text": "favorably because of race, color, religion, sex or national origin and proof of discriminatory motive. In a discriminatory treatment class action, plaintiffs must prove by a preponderance of the evidence that sex or race discrimination was the defendant’s “standard operat ing procedure,” and was maintained through systematic intentional discrimination. Bazemore v. Friday, 478 U.S. 385, 398, 106 S.Ct. 3000, 3007, 92 L.Ed.2d 315 (1986) (Brennan, J. concurring); Penk v. Oregon State Bd. of Higher Educ., 816 F.2d 458, 463 (9th Cir.1987), cert. denied, 484 U.S. 853, 108 S.Ct. 158, 98 L.Ed.2d 113 (1986). 430. To establish a prima facie case of purposeful discrimination a plaintiff must offer evidence that “give[s] rise to an inference of intentional discrimination.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court identified one model for establishing a prima facie case of disparate treatment. However, the facts a plaintiff must assert to raise an inference of discrimination will necessarily vary depending upon the situation. Foster v. Arcata Assoc., Inc., 772 F.2d 1453, 1460 (9th Cir.1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986). The principal requirement is simply that the plaintiff “must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.” Teamsters, 431 U.S. at 358, 97 S.Ct. at 1866. 431. Proof of discriminatory intent may be direct, circumstantial, or may be inferred from statistical evidence. See Green v. USX Corp., 896 F.2d 801, 807 (3d Cir.1990) (disparate impact of employer’s challenged actions may be highly relevant in evaluation of disparate treatment claim), cert. denied, — U.S. —, 111 S.Ct. 53, 112 L.Ed.2d 29 (1990); see also Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (statistical evidence of racial disparity may be probative of purposeful discrimination). “All evidence that a plaintiff presents can contribute to" }, { "docid": "2819735", "title": "", "text": "evidence must show that the handicapped status of the residents of the group homes was one factor, but not necessarily the sole factor, in defendants’ zoning decisions. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450 (1977); Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1042 (2d Cir.1979); Stewart B. McKinney, 790 F.Supp. at 1210-11. Plaintiffs also claim a violation of this provision using a “disparate impact analysis.” This method “considers whether the effect of a defendant’s action is unnecessarily discriminatory even though plaintiff does not show an intent to discriminate.” Stewart B. McKinney, 790 F.Supp. at 1211, citing Metropolitan Hous. Dev. Corp. v. Village of Arlington Heights 558 F.2d 1283, 1290 (7th Cir.1977), cert. denied 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978). See also H.R.Rep. No. 711, 100th Cong., 2d Sess. 24 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2185. (“The Act is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such persons to live in the residence of their choice in the community.”). Plaintiffs’ final argument is that defendants have violated the FHA by failing to make a reasonable accommodation for plaintiffs’ handicap as required by section 3604(f)(3)(B). This provision states that discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling....” 42 U.S.C. § 3604(f)(3)(B). The legislative history accompanying this section requires a defendant to take affirmative steps to change its rules or practices if necessary to allow a handicapped person to use or enjoy a dwelling. The concept of “reasonable accommodation” has a long history in regulations and case law dealing with discrimination on the basis of handicap. A discriminatory rule, policy, practice or service is not defensible simply because that is the manner in which such rule or practice has traditionally been constituted. This section would require that" }, { "docid": "5364652", "title": "", "text": "present proof of intentional discrimination or racial animus to avoid summary judgment. We disagree and find that the district court’s assessment of the proper elements of a prima facie case are more in line with existing caselaw and common sense. Judge Lozano found that in order to prevail on a § 3617 claim, the plaintiff must show that “(1) [s]he is a protected individual under the FHA[], (2)[s]he was engaged in the exercise or enjoyment of [her] fair housing rights ..., (3) Defendants were motivated in part by an intent to discriminate, or their conduct produced a disparate impact, and (4) Defendants coerced, threatened, intimidated, or interfered with Plaintiff on account of [her] protected activity under the FHA[].” A number of district courts have, appropriately we believe, adopted such an approach. See Grubbs v. Hous. Auth. of Joliet, No. 91 C 6454, 1997 WL 281297, at *25 (N.D.Ill. May 20, 1997) (citing People Helpers, Inc. v. City of Richmond, 789 F.Supp. 725, 732 (E.D.Va.1992)). We hold that a showing of intentional discrimination is an essential element of a § 3617 claim. Cf. Halprin, 388 F.3d at 330 (requiring “a pattern of harassment, invidiously motivated”); see also Walton v. Claybridge Homeowners Assoc., Inc., No. 1:03-CV-69-LJM-WTL, 2004 WL 192106, at *8 (S.D.Ind. Jan.22, 2004) (stating that the plaintiff “will have to provide sufficient evidence that the conduct was racially-motivated to survive at summary judgment”); Marthon v. Maple Grove Condo. Assoc., 101 F.Supp.2d 1041, 1050 (N.D.Ill.2000). East-Miller has met the first two elements of her prima facie case: she is African-American and she exercised her fair housing rights by purchasing a house in a white neighborhood. In order to prove the third element, intentional discrimination, East-Miller “may establish that [the Lake County highway department] had a discriminatory intent either directly, through direct or circumstantial evidence, or indirectly, through the inferential burden shifting method known as the McDonnell Douglas test.” Kormoczy v. Sec’y, U.S. Dep’t of Hous. & Urban Dev., 53 F.3d 821, 823-24 (7th Cir.1995). There is also a question as to whether the conduct Easb-Miller alleges, even viewed in the light most" }, { "docid": "5714701", "title": "", "text": "42 U.S.C. § 3602(k). “It has long been recognized that to give full measure to the Congressional purpose behind the FHA, courts have given broad interpretation to the statute.” Baxter v. City of Belleville, Ill., 720 F.Supp. 720, 731 (S.D.Ill.1989) (citations omitted). The Department of Housing and Urban Development (“HUD”) “has adopted a three-part test set forth in McDonnell Douglas Corp. v. Green, for evaluating claims of discrimination under the Fair Housing Act.” U.S. v. Badgett, 976 F.2d 1176, 1178 (8th Cir.1992) (citation omitted). See also Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1533 (7th Cir.1990) (noting that courts use employment discrimination analysis in FHA cases). First, plaintiffs must bear the initial burden of proving a prima facie case of housing discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). There are two theories of discrimination by which plaintiffs may proceed under the FHA: disparate treatment and disparate impact. Here, the Snyders’ only viable option is disparate impact, as they do not state that Bany only applied its occupancy policy to families. See Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1288 (7th Cir.1977) (noting that courts need not find an absence of discrimination simply- because a policy impacts non-protected as well as protected groups). To establish a prima facie case of disparate impact under the FHA, plaintiffs “must show at least that the defendant’s actions had a discriminatory effect.” Id. at 1289-90; Keith v. Volpe, 858 F.2d 467, 482 (9th Cir.1988). If plaintiffs succeed in establishing a prima facie case of discrimination, a presumption of illegality arises and the burden shifts to the defendants to articulate legitimate non-discriminatory reasons for the challenged policies. Badgett, 976 F.2d at 1178. If the defendants satisfy this burden, plaintiffs have the opportunity to prove by a preponderance that the non-discriminatory reasons asserted by the defendants are merely pretext for discrimination. Id. A Prima Facie Case The Seventh Circuit requires courts to consider four factors when evaluating whether FHA disparate impact plaintiffs have established" }, { "docid": "11015196", "title": "", "text": "liberal manner. Jenkins v. Blue Cross Mutual Hospital Ins. Co., 538 F.2d 164, 167-68 (7th Cir.1976); EEOC v. Western Publishing Co., 502 F.2d 599, 602-03 (8th Cir.1974). The plaintiff in a Title VII case bears the initial burden of demonstrating by a preponderance of the evidence a prima facie case of sex discrimination. Once the plaintiff meets her burden, the employer can rebut plaintiff’s prima facie case by coming forward with legitimate nondiscriminatory reasons for its actions. The burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the reasons that the employer has articulated are, in fact, a pretext for unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Chaffin v. Rheem Mfg. Co., 904 F.2d 1269, 1272 (8th Cir.1990). “Despite these shifting burdens, the plaintiff retains throughout the case the ultimate burden of persuading the trier of fact that the-employer discriminated against her.” Chaffin v. Rheem Mfg. Co., 904 F.2d at 1272, (citing 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)). A Plaintiff who proceeds under a disparate treatment theory of discrimination rather than a disparate impact theory bears the burden of proving that her different treatment was the result of a discriminatory motive on the part of her employer. Meyer v. Missouri State Highway Commission, 567 F.2d 804, 807-08 (8th Cir.1977). “What constitutes a prima facie case of discrimination necessarily varies according to the facts of the case.” Meyer, 567 F.2d at 808. A prima facie case can be established through direct proof of discrimination. A plaintiff can make also out a prima facie case through indirect proof by meeting the factors set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas test a plaintiff must show: 1. She is a member of a protected class; 2. She applied for and qualified for a job for which the employer was seeking applicants; 3. Despite her qualifications she was rejected; 4." }, { "docid": "4911699", "title": "", "text": "The plaintiff was rated eligible for rehire on his exit interview form. Mr. Barnes states that he told the plaintiff that he could re-apply in the future if he desired but that the plaintiff never reapplied at any Wal-Mart store. The plaintiff filed a charge of race and religion discrimination with the Equal Employment Opportunity Commission (“EEOC”) on June 16, 1994, and the EEOC mailed the plaintiff a “notice of Right to Sue” on May 30, 1995. Thereafter, the plaintiff commenced this action on August 29, 1995. In his complaint, the plaintiff asserts a Title VII claim for race discrimination based on a theory of wrongful termination. The plaintiff also asserts Title VII claims for religion discrimination based upon the theories of hostile work environment and wrongful termination. DISCUSSION In an action alleging disparate treatment under Title VII, a plaintiff must prove an intentional discriminatory motive by presenting either direct or circumstantial evidence. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519, 113 S.Ct. 2742, 2753-54, 125 L.Ed.2d 407 (1993); see e.g., Lee v. Russell County Bd. of Educ., 684 F.2d 769, 771-72 (11th Cir.1982). Absent direct evidence, as here, a plaintiff can establish intentional discrimination under the three-part burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); see also St. Mary’s, 509 U.S. at 518, 113 S.Ct. at 2753. Under the McDonnell Douglas and Bur-dine framework, the plaintiff first must raise an inference of discrimination by establishing a prima facie case. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.1994) (citation omitted). The purpose of the prima facie case is to show an adverse employment decision that resulted from a discriminatory motive. See Perryman v. Johnson Products Co., 698 F.2d 1138, 1143 (11th Cir.1983). If a plaintiff succeeds in showing a prima facie case of discrimination, the burden shifts to the defendant to “articulate some legitimate, nondiscriminatory reason” for the adverse employment decision. McDonnell Douglas, 411 U.S. at 802," }, { "docid": "3940741", "title": "", "text": "80, 130 L.Ed.2d 33 (1994) (“[T]he allocation of burdens under Title VII applies to proving in tentional discrimination under section 1981 as well.”) (citation omitted). In an action alleging disparate treatment under Title VII, a plaintiff must prove an intentional discriminatory motive by presenting either direct or circumstantial evidence. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519-21, 113 S.Ct. 2742, 2754, 125 L.Ed.2d 407 (1993); see e.g., Lee v. Russell County Bd. of Educ., 684 F.2d 769, 771-72 (11th Cir.1982). Absent direct evidence, a plaintiff can establish intentional discrimination under the three-part burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Def't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under the McDonnell Douglas and Burdine framework, the plaintiff first must raise an inference of race discrimination by establishing a prima facie case. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.1994) (citation omitted). The purpose of the prima facie ease is to show an adverse employment decision that resulted from a discriminatory motive. See Perryman v. Johnson Products Co., 698 F.2d 1138, 1143 (11th Cir.1983). Here, the individual plaintiffs have alleged discrimination in various facets of their employment at Wal-Mart, including promotions, terminations and work environments. Because the elements of the prima facie case vary depending upon the challenged employment decision, the court will discuss the prima facie standards separately when addressing the claims of each individual plaintiff. . If a plaintiff succeeds in showing a prima facie ease of discrimination, the burden shifts to the defendant to “articulate some legitimate, nondiscriminatory reason” for the adverse employment decision. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. The defendant’s burden is “exceedingly light,” Perryman, 698 F.2d at 1142, as it “must merely proffer [race neutral] reasons, not prove them.” Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1019 (11th Cir.1994) (citation omitted) (brackets supplied). Once the defendant satisfies its burden of production, the McDonnell Douglas framework, with its presumptions and burdens, drops out of the ease," }, { "docid": "15115881", "title": "", "text": "2505. Further, the nonmoving party cannot rest on its pleadings to avoid summary judgment. It must support its claim with some probative evidence. Kraft v. United States, 991 F.2d 292, 296 (6th Cir.), cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993). IY. Analysis A. Applicable Law A federal housing discrimination claim may be established by proving either disparate treatment and discriminatory intent, or disparate impact. See Larkin v. State of Michigan Dept. of Social Services, 89 F.3d 285, 289 (6th Cir.1996). Federal fair housing law prohibits using impermissible criteria such as race, col- or, or familial status in real estate transactions. 42 U.S.C. § 3604(a). Other federal anti-discrimination laws confirm that citizens should enjoy equal rights to lease property and enter contracts without regard to race or color. 42 U.S.C. §§ 1981, 1982. In this Circuit, the same analysis applies to all federal fair housing violations claimed in this case [denial of rental application based on race]. [Jackson v. Whitehouse, No. 92-CV-74725-DT, 1993 U.S. Dist. LEXIS 18766, at *14 (E.D. Mich. Nov. 23 1993) ]. All turn on the three-part evi-dentiary standard first developed in the employment discrimination context by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Courts have adapted this test to fair housing claims by requiring the plaintiff to first establish a prima facie case of discrimination. Then, in response, the defendant must offer a legitimate nondiscriminatory reason for the housing decision made. Finally, the plaintiff must show that the proffered reason is a pretext that masks discrimination. Selden v. United States Dep’t of Hous. and Urban Dev., 785 F.2d 152, 160 (6th Cir.1986). Mencer v. Princeton Square Apts., 228 F.3d 631, 634 (6th Cir.2000). A prima facie disparate treatment claim requires the plaintiff to establish that he is a member of a protected class, that he applied for and was qualified to receive a housing benefit, that his application was rejected, and that the property benefit remained available to others. Id. at 634. In contrast, a prima facie disparate impact claim requires the plaintiff to" }, { "docid": "23252530", "title": "", "text": "structure under the disparate treatment theory, the burden of showing disparate impact always remains with the plaintiff and the employer has only the burden of production, on the issue of business justification, once a prima facie case has been established). No proof of intentional dis crimination is necessary. See Watson, 108 5.Ct. at 2784-85. Alternatively, the Title VII plaintiff can argue a disparate treatment theory of discrimination. This is the theory advanced by the EEOC in the instant case. A disparate treatment violation is made out when an individual of a protected group is shown to have been singled out and treated less favorably than others similarly situated on the basis of an impermissible criterion under Title VII. See, e.g., International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977). Unlike the disparate impact theory, proof of the employer’s discriminatory motive is critical under this analysis. Id. Discriminatory intent can either be shown by direct evidence, see, e.g., Slack v. Havens, 7 Fair Empl.Prac.Cas. (BNA) 885 (S.D.Cal.1973), aff'd as modified, 522 F.2d 1091 (9th Cir.1975), or through indirect or circumstantial evidence. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If discriminatory intent is shown indirectly, the burden of production can be shifted to the employer once the plaintiff establishes a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. The employer’s burden is to articulate a legitimate, nondiscriminatory reason for the adverse action. However, the ultimate burden of persuasion on the issue of intent remains with the Title VII plaintiff. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). In the seminal case of McDonnell Douglas, the Supreme Court set forth the by now quite familiar four-prong test for what constitutes a prima facie case. However, the Court cautioned that the “facts necessarily will vary in Title VII cases, and the specification ... of the prima facie proof required from [the complainant]" }, { "docid": "4712915", "title": "", "text": "claim. C. Plaintiffs’ Disparate Treatment Promotion Claims. 19. The plaintiffs in this case have elected to proceed under the disparate treatment theoz-y as well as the disparate impact theory. The plaintiff in a disparate tzeatment case such as this one must prove “intentional discz’imizzation” in oz’der to prevail. Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). The Supz’eme Court has stated unequivocally that “[p]roof of diseziminatoz-y motive is czitical” in a Title VII disparate treatment ease. International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977); see United States Postal Service v. Athens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983); Clark v. Huntsville City Bd. of Educ., 717 F.2d 525, 528-29 (11th Cir.1983) (“discriminatory motive, purpose or animus”). 20. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a Title VII hiring case, the Supreme Court held that a plaintiff must carry the initial burden of establishing a prima facie case of discrimination. A plaintiff alleging disparate treatment may establish a prima facie case of discrimination either by “circumstantial evidence,” McDonnell Douglas Corp., 411 U.S. at 792, 93 S.Ct. 1817, or by producing “credible direct evidence of discriminatory intent.” Smith v. Horner, 839 F.2d 1530, 1536 (11th Cir.1988). A plaintiff can establish a prima facie case of race discrimination based on circumstantial evidence in a Title VII promotion case by showing: (1) he or she is a member of a protected minority, (2) was qualified for and applied for the promotion, (3) was rejected despite these qualifications, and (4) other employees with equal or lesser qualifications who were not members of the protected minority were promoted. Smith, 839 F.2d at 1536; see Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir.1988), cert. denied, 490 U.S. 1006, 109 S.Ct. 1641, 104 L.Ed.2d 156 (1989); Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 n. 7 (11th Cir.1983). 21. If the plaintiff succeeds in establishing a" }, { "docid": "9791991", "title": "", "text": "at 805; Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir.1985). Under Title VII and § 1983, the plaintiffs ultimate burden of proof requires a showing by the preponderance of the evidence that the defendants “acted with discriminatory intent.” Richardson, 71 F.3d at 805. The plaintiffs claims are premised upon a disparate treatment, as opposed to a disparate impact, theory of liability. In an action alleging disparate treatment, a plaintiff may prove a racially, discriminatory intent by either direct or circumstantial evidence. Lee, 684 F.2d at 773. The plaintiff seeks to prove her case by circumstantial evidence. Direct evidence is not at issue. Where the evidence is circumstantial, a plaintiff establishes intentional discrimination under a variation of the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 518, 113 S.Ct. 2742, 2753, 125 L.Ed.2d 407 (1993). Under this framework, the plaintiff must first raise an inference of discrimination by establishing a prima facie case. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.1994) (citation omitted). The court finds that the analysis used in evaluating discriminatory discharge claims governs the plaintiffs prima facie proof of race discrimination in the non-renewal of her nine-month probationary contract. Lee, 684 F.2d at 773. (In determining whether the nonrenewal of an untenured teacher’s contract was based upon race considerations, the Eleventh Circuit applied the prima facie case used in discriminatory discharge eases.); Richardson, 729 F.Supp. at 810 (same). Hence, the plaintiff must prove by a preponderance of the evidence: (1) that she belongs to a protected class; (2) that she was qualified for the position held; (3) that she was discharged despite her qualifications; and (4) that she was “replaced by a person outside of the protected class or was discharged while a person outside of the class with equal or lesser qualifications was re-tained____” Lee, 684 F.2d at 773 (citations omitted). In establishing the" }, { "docid": "8724268", "title": "", "text": "a different manner than others. See Potomac Group Home, 823 F.Supp. at 1295 (“To prove discriminatory intent, a plaintiff need only show that the handicap of the potential residents [of a group home] ... was in some part the basis for the policy being challenged.”) (quotation omitted); Horizon House Dev. Servs., Inc. v. Township of Upper Southampton, 804 F.Supp. 683, 694, 696 (W.D.Pa.1992), aff'd, 995 F.2d 217 (1993); Stewart B. McKinney Found., Inc. v. Town Plan and Zoning Comm’n of Fairfield, 790 F.Supp. 1197, 1211 (D.Conn.1992). Thus, a plaintiff makes out a prima facie case of intentional discrimination under the FHAA merely by showing that a protected group has been subjected to explicitly differential— i.e. discriminatory — treatment. In applying a discriminatory intent analysis to this case, we do not imply that FHAA claims cannot also be based on the discriminatory effect of a facially neutral policy. It is widely accepted that an FHAA violation can be demonstrated by either disparate treatment or disparate impact. See, e.g., Doe v. City of Butler, Pa., 892 F.2d 315, 323 (3d Cir.1989); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 934-35 (2d Cir.), aff'd, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988) (per curiam); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 146-47 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978); Metropolitan Hous. Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978); United States v. City of Black Jack, Mo., 508 F.2d 1179, 1184-85 (8th Cir.1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975). We also do not suggest that the differential treatment in this case has not caused a “disparate impact” on the handicapped in an everyday sense — as probably all intentional discriminatory treatment does. However, the legal framework for discriminatory effects, or disparate impact, claims remains inappropriate for this case. “A disparate impact analysis examines a facially-neutral policy or practice, such as a hiring test or zoning law, for its" }, { "docid": "5364653", "title": "", "text": "element of a § 3617 claim. Cf. Halprin, 388 F.3d at 330 (requiring “a pattern of harassment, invidiously motivated”); see also Walton v. Claybridge Homeowners Assoc., Inc., No. 1:03-CV-69-LJM-WTL, 2004 WL 192106, at *8 (S.D.Ind. Jan.22, 2004) (stating that the plaintiff “will have to provide sufficient evidence that the conduct was racially-motivated to survive at summary judgment”); Marthon v. Maple Grove Condo. Assoc., 101 F.Supp.2d 1041, 1050 (N.D.Ill.2000). East-Miller has met the first two elements of her prima facie case: she is African-American and she exercised her fair housing rights by purchasing a house in a white neighborhood. In order to prove the third element, intentional discrimination, East-Miller “may establish that [the Lake County highway department] had a discriminatory intent either directly, through direct or circumstantial evidence, or indirectly, through the inferential burden shifting method known as the McDonnell Douglas test.” Kormoczy v. Sec’y, U.S. Dep’t of Hous. & Urban Dev., 53 F.3d 821, 823-24 (7th Cir.1995). There is also a question as to whether the conduct Easb-Miller alleges, even viewed in the light most favorable to her, “rose to the level of coercion, intimidation or interference that § 3617 was designed to address.” Walton, 2004 WL 192106, at *5. The district court found that East-Miller failed to show that the highway department’s alleged actions were discriminatory. We agree that she provided no direct evidence of intentional discrimination. See, e.g., Kormoczy, 53 F.3d at 824 (“Direct evidence is that which can be interpreted as an acknowledgment of the defendant’s discriminatory intent.”). The highway department did not acknowledge discriminatory intent in its dealings with Eash-Miller; in fact, there is no evidence that the drivers who allegedly damaged Easb-Miller’s mailbox even knew that she was African-American. Also, unlike cross-burning or name-calling, one cannot infer race discrimination from the substance of the alleged actions — damaging the mailbox four or five times in a six-year period, pushing snow into the driveway, and headlights shining in windows are not methods traditionally used to force minority families out of predominantly white neighborhoods. East-Miller also attempted to prove discrimination through the indirect burden-shifting method set out" }, { "docid": "23523482", "title": "", "text": "only from the AU’s dismissal of the section 3604(a) and (c) claims, we address only the aspects of the AU’s opinion that dealt with those statutory provisions. A. Section 3604(a) The burden shifting procedure employed in examining a section 3604(a) claim is well settled in this Circuit. See Robinson v. 12 Lofts Realty, 610 F.2d 1032, 1036-43 (2d Cir.1979) (applying McDonnell Douglas Gory. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to section 3604(a) claim); Sassower v. Field, 752 F.Supp. 1182, 1187 (S.D.N.Y.1990) (“The law in this circuit on housing discrimination claims was laid down in Robinson.”). To make out a prima facie discriminatory housing refusal case, a plaintiff must show that he is a member of a statutorily protected class who applied for and was qualified to rent or purchase housing and was rejected although the housing remained available. See Robinson, 610 F.2d at 1038. A plaintiff in stating a claim under the FHA need allege “only discriminatory effect, and need not show that the decision complained of was made with discriminatory intent.” United States v. Yonkers Board of Education, 837 F.2d 1181, 1217 (2d Cir.1987), cert, denied, 486 U.S. 1055, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988). However, satisfying the requirements of a prima facie case does not guarantee recovery to a plaintiff. In part to ensure fairness, where a member of a protected group establishes that he was denied housing that remained available, we allow the defendant to explain whether his actions were motivated by impermissible considerations. Cf. McDonnell Douglas, 411 U.S. at 800-01, 93 S.Ct. at 1823 (“ ‘[Title VII] does not command that any person be hired ... because he is a member of a minority group.... What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers ... when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.’ ”) (citation omitted). If, however, the defendant declines the opportunity to present evidence toward this end, the plaintiff is entitled to relief. See Robinson, 610 F.2d at 1039. If the defendant does come" }, { "docid": "21458622", "title": "", "text": "Accordingly, the court will consider Plaintiffs claims in concert. The theory of “disparate treatment” has been stated by the Supreme Court of the United States as follows: [Disparate treatment is] the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment, [citation omitted]. Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII. International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Thus, the essence of disparate treatment is different treatment: in this case, it involves proof that Plaintiff, as a white, or male, or older employee, was treated differently than black or female or younger employees. In an action alleging disparate treatment under the statutes cited above, a plaintiff must prove an intentional discriminatory motive by presenting either direct or circumstantial evidence. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Lee v. Russell County Bd. of Educ., 684 F.2d 769, 771-72 (11th Cir.1982). The court finds that, even viewing the record in a light most favorable to Plaintiff, he has failed to establish the necessary elements of a discrimination claim with either direct or circumstantial evidence. A. Plaintiff fails to establish a Prima Facie Case of Discrimination through Circumstantial Evidence. Plaintiff may establish intentional discrimination on the basis of race, gender or age under the three-part burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); see also St. Mary’s, 509 U.S. at 518. Under the McDonnell Douglas and Burdine framework, the plaintiff must first raise an inference of discrimination by establishing a prima facie case. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.1994) (citation" }, { "docid": "2543604", "title": "", "text": "(1975) (holding unequivocally that § 1981 protects against racial discrimination in private employment). Section 1981 liability must be founded on purposeful discrimination. See General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 389, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982); Lincoln v. Board of Regents of the University System of Georgia, 697 F.2d 928, 935 n. 6 (11th Cir.1983). Thus, a showing of disparate impact through a neutral practice is insufficient to prove a § 1981 violation because proof of discriminatory intent is essential. See id. at 388, 102 S.Ct. 3141. (recognizing that the drafters of § 1981 were not concerned with practices that were facially neutral). Accordingly, only direct or circumstantial modes of proving intentional discrimination are available to the § 1981 plaintiff. See Larkin v. Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549, 1561 (11th Cir.1988), overruled on other grounds by Swint v. Pullman-Standard, Inc., 493 U.S. 929, 110 S.Ct. 316, 107 L.Ed.2d 307 (1989) (where plaintiff proceeded on a theory of disparate impact, plaintiff is limited to Title VII and cannot seek the broader § 1981 remedies and longer liability period). The test for intentional discrimination in suits under § 1981 is the same as that used in Title VII discriminatory treatment cases. Ferrill v. Parker Group, 168 F.3d 468 (11th Cir.1999). The plaintiff has the burden of establishing a prima facie case of employment discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This prima facie case can be established in any one of three ways: (1) by presenting direct evidence of discriminatory intent; (2) by presenting circumstantial evidence of discriminatory intent through the McDonnell Douglas test; or (3) by demonstrating through statistics a pattern of discrimination. Earley v. Champion International Corp., 907 F.2d 1077, 1081 (11th Cir.1990). Where the plaintiff wishes to prove a claim of discrimination through circumstantial rather than direct evidence, the court evaluates the claims using the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." }, { "docid": "10367289", "title": "", "text": "Fed.R.Civ.P. 56(e)). Under Title VII, an employer may be found hable for unlawful discrimination under any one of three discrete theories: disparate treatment discrimination, pattern and practice discrimination, or disparate impact discrimination. EEOC v. Joe’s Stone Crab, 220 F.3d 1263, 1273 (11th Cir.2000). The first two theories require proof of discriminatory intent, while the third does not. Id. at 1273. Defendants argue that summary judgment is appropriate here because Plaintiff has failed to establish a claim of intentional discrimination or disparate impact. Plaintiff objects, arguing that there are genuine issues of material fact precluding summary judgment as to both Plaintiffs intentional discrimination and disparate impact claims. Because the theories place different burdens on the parties, the Court will address them separately. A. Intentional Discrimination To establish a prima facie case of race discrimination under a disparate treatment theory, Plaintiff may offer either direct or circumstantial evidence of discriminatory intent. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802- 03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Alexander v. Fulton County, Ga., 207 F.3d 1303 (11th Cir.2000). If the plaintiff presents direct evidence of discrimination, the defendant is then required to prove by a preponderance of the evidence that it would have taken the adverse employment action even in the absence of discrimination. To make a prima facie case using circumstantial evidence, a plaintiff may use the test established in McDonnell Douglas. A plaintiff may establish a prima facie case by demonstrating 1) that he belongs to a protected class under Title VII; 2) that he was qualified for and applied for the job; 3) that he was rejected; and 4) that others who were not members of the protected class were promoted. Denney v. City of Albany, 247 F.3d 1172, 1183 (11th Cir.2001); Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997). If the plaintiff provides sufficient circumstantial evidence to support a prima facie case, a legal presumption of unlawful discrimination arises and the burden of production shifts to the defendant to articulate a legitimate, non-diseriminatory reason for the challenged employment action. McDonnell Douglas, 411 U.S. at" } ]

[ { "docid": "21653414", "title": "", "text": "523(a)(15). . In re Yeates, 807 F.2d 874, 878 (10th Cir.1986)(citing In re Crist, 632 F.2d 1226, 1229 (5th Cir.1980)); see also In re Sampson, 997 F.2d at 721. . In re Yeates, 807 F.2d at 878. . 808 F.2d 1391 (10th Cir.1987). . In re Sampson, 997 F.2d at 722. The Sampson court rejected the suggestion in Yeates that an unambiguous agreement normally controls the court's determination. . In re Sampson, 997 F.2d at 722-23, quoting In re Goin, 808 F.2d at 1392. . (1) The absence of an explicit maintenance division under the circumstances in which the payee had a demonstrated need for support at the time of the divorce; (2) disparate income between the parties and the presence of minor children; (3) whether payments were directed to the payee in installments over a period of time; and (4) whether the obligation terminates upon death or remarriage. In re Goin, 808 F.2d at 1392-93. . In re Sampson, 997 F.2d at 723, quoting in the second statement 2 Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 17.7, at 305 (2d ed. 1987); emphasis is provided by the Sampson court. . In re Yeates, 807 F.2d 874, 879 (10th Cir. 1986). . In re Williams, 703 F.2d 1055, 1057 (8th Cir.1983). . In re Sampson, 997 F.2d at 726. . Id. . See In re Cole, 226 B.R. 647, 652-53 (9th Cir. BAP 1998); see also In re Mascoll, 246 B.R. 697 (Bankr.D.C.2000). . See In re Miller, 55 F.3d 1487 (10th Cir.1995)(holding that guardian ad litem and psychologist's fees incurred for the benefit of the parties’ minor children attendant to divorce proceedings were a nondischargeable obligation, even when payable to a third party)- . Id. at 1490. . Id. at 1489. . 921 F.2d 252 (10th Cir.1990). . Id. . Id. . Sylvester v. Sylvester, 865 F.2d 1164, 1166 (10th Cir.1989). . See In re Rush, 100 B.R. 55 (D.Kan.1989)(statmg that the debtor's obligation to make a monthly house payment for the house occupied by the debtor's ex-spouse and children is nondischargeable" } ]

[ { "docid": "18545364", "title": "", "text": "a question of fact, i.e., whether under the circumstances the award of attorney’s fees at issue bears the trappings of a support or maintenance obligation. That said, the Court will turn its attention to the substance of the award at issue. B. Is This Particular Fee Award “in the Nature of Alimony, Support or Maintenance?” In determining the “nature” of a debt for the purposes of 11 U.S.C. § 523(a)(5), courts should allow the intent of the obligation’s maker to control. Sampson v. Sampson (In re Sampson), 997 F.2d 717, 723 (10th Cir.1993). Thus, in the context of an attorney’s fee award, the intent of the divorce court to provide support should form the object of any inquiry under section 523(a)(5). See Long v. West (In re Long), 794 F.2d 928, 931 (4th Cir.1986) (intent of state court controls); Foiles, 1995 WL 463101 at *2; Bangert v. McCauley (In re McCauley), 105 B.R. 315, 320 (E.D.Va.1989). As with other standards which turn on preex isting intent, however, the determination of a divorce court’s motive in awarding fees most likely will not be resolved from the introduction of direct evidence. Consequently, courts rely upon set factors which are said to evidence the requisite intent. Ewing, 180 B.R. at 446 (citing McCauley, 105 B.R. at 319). Somewhat predictably, there appears to be a split of authority regarding the dominant standard for divining a state court’s intent in awarding attorney’s fees and the consequent dischargeability of that award. Several courts, for instance, view the function served by the award as dispositive evidence of the state court’s intent. Adams v. Zentz, 963 F.2d 197, 199 (8th Cir.1992); In re Gianakas, 917 F.2d 759, 763 (3d Cir.1990); Rul-Lan v. Rul-Lan (In re Rul-Lan), 186 B.R. 938, 944 (Bankr.W.D.Mo.1995). To that end, these courts focus upon the relative financial positions of the two former spouses at the time of the award and, particularly, whether it looks as though the state court took any such imbalance into consideration. Joseph, 16 F.3d at 88 (“the attorney’s fee award is deemed nondischargeable if the award itself reflects a balancing" }, { "docid": "17833985", "title": "", "text": "hard of hearing, and Gerald is 51 years old and also suffers from a very serious hearing disability, and it would appear to the Court that neither is likely employable at this time in their lives. DISCUSSION In Count I of her Complaint, Norma asked that Gerald be denied discharge with respect to the joint debts which were allocated to Gerald by the divorce court, pursuant to the provisions of 11 U.S.C. § 523(a)(5). That section provides as follows: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— * * * (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. 11 U.S.C. § 523(a)(5). The question that must be answered by this Court then is whether Gerald’s obligation to pay the debts allocated to him by the divorce court constitutes a liability “in the nature of alimony, maintenance, or support.” Whether an obligation is in the nature of alimony, maintenance, or support is a matter of federal bankruptcy law. Williams v. Williams (In re Williams), 703 F.2d 1055, 1056 (8th Cir.1983). The characterization of the obligation depends primarily on the function the award was intended to serve at the time it was awarded, In re Reiff, 166 B.R. 694, 696 (Bankr.W.D.Mo.1994), and debts payable to a third party may be nondisehargeable if the parties intended them to serve as alimony, maintenance, or support. Holliday v. Kline (In re Kline), 65 F.3d 749, 751 (8th Cir.1995), rev’g In re Kline, 174 B.R. 525 (W.D.Mo.1994), rev’g In re Kline 172 B.R. 279 (Bankr.W.D.Mo.1994); In re Williams, 703 F.2d at 1057." }, { "docid": "12289827", "title": "", "text": "would have received had the marriage continued. In the context of § 523(a)(5), “substance prevails over form.” In re Warren, 160 B.R. 395, 398 (Bankr.D.Me. 1993); In re Sweck, 174 B.R. 532, 534 (Bankr.D.R.I., 1994)(Code requires the bankruptcy court “to determine the nature of the debts, regardless of the labels placed on them by the parties or the family court”). In conducting this inquiry, a court cannot rely solely on the label used by the parties. As other courts have recognized, “it is likely that neither the parties nor the divorce court contemplated the effect of a subsequent bankruptcy when the obligation arose.” In re Gianakas, 917 F.2d 759, 762 (3rd Cir.1990) (citations omitted). Applying federal principles, the bankruptcy court must examine the circumstances that existed at the time that the obligation was created to ascertain whether it then functioned to provide support to the non-Debtor obligee. In re Sweck, 174 B.R. at 535; In re Fitzgerald, 9 F.3d 517 (6th Cir.1993); In re Sampson, 997 F.2d 717, 723 (10th Cir.1993); In re Gianakas, 917 F.2d 759, 763 (3rd Cir.1990) (While the intention of the parties or the divorce court is the ultimate question, even the uncontradicted testimony of one of the spouses is not decisive. The trial court is entitled to weigh the credibility of the witness, the worth of the testimony when weighed against the language of the agreement, the actual situation of the parties at the time when the agreement was made, and any other evidence that may help to determine the reality of the nature of the payments.) Other than the two “judgments” introduced as Plaintiffs Exhibits 2 and 3, the court received no other pleadings from the state court divorce proceedings, no transcript of the proceedings and no copy of an “Interim Order” which is referred to in several places in Px. 2, ¶ 17, 18, 21 or any of the exhibits, transcript, pleadings or orders emanating from the contempt hearing and testimony on offsets, held in September 1999. See Px. 2 ¶ 18. These items would have been helpful in discerning the intent of" }, { "docid": "23123184", "title": "", "text": "Substance of the Section. In the context of § 523(a)(5), “substance prevails over form.” Warren v. Warren (In re Warren), 160 B.R. 395, 398 (Bankr.D.Me.1993); see Sweck v. Sweck (In re Sweck), 174 B.R. 532, 534 (Bankr.D.R.I. 1994) (Code requires the bankruptcy court “to determine the nature of the debts, regardless of the labels placed on them by the parties or the family court.”); see also Gibbons v. Gibbons (In re Gibbons), 160 B.R. 473, 475 (Bankr.D.R.I.1993); Stitham v. Stitham (In re Stitham), 154 B.R. 1, 3 (Bankr.D.Me.1993); Zalenski v. Zalenski (In re Zalenski), 153 B.R. 1, 2 (Bankr.D.Me.1993); Young v. Young, 72 B.R. 450, 452 (Bankr.D.R.I.1987). Applying federal principles, the bankruptcy court must examine the circumstances that existed at the time that the obligation was created to ascertain whether it then functioned to provide support to the non-debtor obligee. In re Sweck, 174 B.R. at 535; In re Stitham, 154 B.R. at 4 n. 8; see Fitzgerald v. Fitzgerald (In re Fitzgerald), 9 F.3d 517, 520 (6th Cir.1993) (distinguishing Long v. Calhoun (In re Calhoun), 715 F.2d 1103 (6th Cir.1983)); Sampson v. Sampson (In re Sampson), 997 F.2d 717, 723 (10th Cir.1993); Gianakas v. Gianakas (In re Gianakas), 917 F.2d 759, 763 (3rd Cir.1990); Sylvester v. Sylvester, 865 F.2d 1164 (10th Cir.1989); Forsdick v. Turgeon, 812 F.2d 801 (2d Cir.1987); Draper v. Draper, 790 F.2d 52, 54 (8th Cir.1986); Harrell v. Sharp (In re Harrell), 754 F.2d 902, 906 (11th Cir.1985); Boyle v. Donovan, 724 F.2d 681, 683 (8th Cir.1984). In evaluating obligations created by a divorce settlement agreement, the parties’ intention is a “‘crucial element.’” In re Gibbons, 160 B.R. at 475 (quoting In re Young, 72 B.R. at 452); see In re Gianakas, 917 F.2d 759, 762. To assay the character of obligations arguably in the nature of alimony or support, the courts have coined and applied a number of multi-factor tests. Although the tests vary one from another in detail, their essence is to ascertain and appreciate the dissolution dynamics that led to the obligations’ creation and how these obligations functioned under extant circumstances. See In" }, { "docid": "18545363", "title": "", "text": "Magill v. Bronstein (In re Magill), 1994 WL 416425, No. 93-2426, at *1 (4th Cir. Aug. 10, 1994); Zerbe v. Zerbe (In re Zerbe), 161 B.R. 939, 940 (E.D.Va.1994); Martin v. Morello (In re Morello), 185 B.R. 753, 757-58 (Bankr.E.D.Tenn.1995); Wester v. Wester (In re Wester), 187 B.R. 358, 361 (Bankr.M.D.Fla.1995); but see Ricci v. Simmons (In re Simmons), 179 B.R. 645, 646 (Bankr.E.D.Mo.1995) (finding fee award payable to attorney dischargeable because “[t]he clear language of the statute requires that the debt be to a spouse, former spouse or child of a debtor”). Just as a direction of fee reimbursement to the spouse may create an obligation of support, an order of payment directly to the attorney will create a nondischargeable debt, provided that it truly came “in the nature of alimony, support or maintenance.” Spong, 661 F.2d at 10-11; In re Calhoun, 715 F.2d 1103, 1107 (6th Cir.1983); Spear v. Constantine (In re Constantine), 183 B.R. 335, 336 (Bankr.D.Mass.1995). In light of these clearly established legal parameters, the Court finds itself presented solely with a question of fact, i.e., whether under the circumstances the award of attorney’s fees at issue bears the trappings of a support or maintenance obligation. That said, the Court will turn its attention to the substance of the award at issue. B. Is This Particular Fee Award “in the Nature of Alimony, Support or Maintenance?” In determining the “nature” of a debt for the purposes of 11 U.S.C. § 523(a)(5), courts should allow the intent of the obligation’s maker to control. Sampson v. Sampson (In re Sampson), 997 F.2d 717, 723 (10th Cir.1993). Thus, in the context of an attorney’s fee award, the intent of the divorce court to provide support should form the object of any inquiry under section 523(a)(5). See Long v. West (In re Long), 794 F.2d 928, 931 (4th Cir.1986) (intent of state court controls); Foiles, 1995 WL 463101 at *2; Bangert v. McCauley (In re McCauley), 105 B.R. 315, 320 (E.D.Va.1989). As with other standards which turn on preex isting intent, however, the determination of a divorce court’s motive in" }, { "docid": "17833986", "title": "", "text": "alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. 11 U.S.C. § 523(a)(5). The question that must be answered by this Court then is whether Gerald’s obligation to pay the debts allocated to him by the divorce court constitutes a liability “in the nature of alimony, maintenance, or support.” Whether an obligation is in the nature of alimony, maintenance, or support is a matter of federal bankruptcy law. Williams v. Williams (In re Williams), 703 F.2d 1055, 1056 (8th Cir.1983). The characterization of the obligation depends primarily on the function the award was intended to serve at the time it was awarded, In re Reiff, 166 B.R. 694, 696 (Bankr.W.D.Mo.1994), and debts payable to a third party may be nondisehargeable if the parties intended them to serve as alimony, maintenance, or support. Holliday v. Kline (In re Kline), 65 F.3d 749, 751 (8th Cir.1995), rev’g In re Kline, 174 B.R. 525 (W.D.Mo.1994), rev’g In re Kline 172 B.R. 279 (Bankr.W.D.Mo.1994); In re Williams, 703 F.2d at 1057. The parties’ intent is determined by the totality of circumstances at the time of the award, In re Frye, 231 B.R. 71, 73 (Bankr.E.D.Mo.1999); In re Williams, 703 F.2d at 1057-58, but most courts have narrowed the inquiry down to one or more of three main factors: (1) the language and substance of the dissolution decree or separation agreement, In re Kline, 172 B.R. 279, 281 (Bankr.W.D.Mo.1994); In re Peterson, 133 B.R. 508, 512 (Bankr.W.D.Mo.1991); (2) the relative financial circumstances at the time of the dissolution; Holliday v. Kline, 65 F.3d. at 751; In re Stamper, 131 B.R. at 433, 435 (Bankr.W.D.Mo.1991); and (3) the degree to which the obligation enables the recipient to maintain daily necessities. In re Stamper, 131 B.R. at 435; In re Jensen, 17 B.R. 537, 539-40 (Bankr.W.D.Mo.1982) (holding that a debtor’s obligation to pay various joint consumer debts was nondisehargeable where the award was “intended to free money that she [the non-debtor spouse] might otherwise have to pay the debtor’s bills so that she might use it for her own" }, { "docid": "18571174", "title": "", "text": "re Donahue), 862 F.2d 259, 262 (10th Cir.1988); In re Coil, 680 F.2d 1170, 1171 (7th Cir.1982) (citing In re Maitlen, 658 F.2d 466 (7th Cir.1981))); Shine v. Shine (In re Shine), 802 F.2d 583, 586 (1st Cir.1986); Kavanakudiyil v. Kavanakudiyil (In re Kavanakudiyil), 143 B.R. 598, 601-02 (Bankr.S.D.N.Y.1992); Schmerzler v. Goodnight (In re Goodnight), 102 B.R. 799, 802 (D.Kan.1989). Whether an obligation is one of alimony, maintenance or support is a question of federal bankruptcy law, not state law. Mackey v. Kaufman (In re Kaufman), 115 B.R. 435, 439-40 (Bankr.E.D.N.Y.1990) (citing cases); Williams v. Williams (In re Williams), 703 F.2d 1055, 1056 (8th Cir. 1983). “Under bankruptcy law, the intent of the parties at the time a separation agreement is executed determines whether a payment pur suant to the agreement is alimony, support or maintenance within the meaning of section 528(a)(5).” Brody v. Brody (In re Brody), 8 F.3d 35, 38 (2d Cir.1993) (emphasis ours) (citing Davidson v. Davidson (In re Davidson), 947 F.2d 1294, 1296-97 (5th Cir.1991); Gianakas v. Gianakas (In re Gianakas), 917 F.2d 759, 762 (3d Cir.1990)); e.g., Sampson v. Sampson (In re Sampson), 997 F.2d 717, 722-23 (10th Cir.1993) (citations omitted); Morel v. Morel (In re Morel), 983 F.2d 104, 105 (8th Cir.1992); Davidson v. Davidson (In re Davidson), 947 F.2d 1294, 1296 (5th Cir.1991); Long v. West (In re Long), 794 F.2d 928, 931 (4th Cir.1986); Telgmann v. Maune (In re Maune), 133 B.R. 1010, 1014 (Bankr.E.D.Mo.1991) (the court must “determine what function the award was intended to serve and on that basis either discharge it as a property settlement or except it from discharge as a support obligation”). Bankruptcy courts have developed a number of factors to be considered in ascertaining the parties’ intent, and in determining whether a particular obligation is a dis-chargeable property settlement or a non-disehargeable obligation for support or maintenance; a non-exhaustive list of such factors routinely includes the following: (1) whether the obligation terminates upon the death or remarriage of either spouse, upon any children reaching majority or upon some other similar event; (2) how the obligation is" }, { "docid": "18571175", "title": "", "text": "917 F.2d 759, 762 (3d Cir.1990)); e.g., Sampson v. Sampson (In re Sampson), 997 F.2d 717, 722-23 (10th Cir.1993) (citations omitted); Morel v. Morel (In re Morel), 983 F.2d 104, 105 (8th Cir.1992); Davidson v. Davidson (In re Davidson), 947 F.2d 1294, 1296 (5th Cir.1991); Long v. West (In re Long), 794 F.2d 928, 931 (4th Cir.1986); Telgmann v. Maune (In re Maune), 133 B.R. 1010, 1014 (Bankr.E.D.Mo.1991) (the court must “determine what function the award was intended to serve and on that basis either discharge it as a property settlement or except it from discharge as a support obligation”). Bankruptcy courts have developed a number of factors to be considered in ascertaining the parties’ intent, and in determining whether a particular obligation is a dis-chargeable property settlement or a non-disehargeable obligation for support or maintenance; a non-exhaustive list of such factors routinely includes the following: (1) whether the obligation terminates upon the death or remarriage of either spouse, upon any children reaching majority or upon some other similar event; (2) how the obligation is characterized in the parties’ settlement agreement or divorce decree, and the context in which it appears; (3) whether the payments appear to balance disparate income between the former spouses; (4) whether the payments are to be made directly to the spouse or to a third party; (5) whether the payment is payable in a lump sum or in installments over time; (6) whether the parties intended to create an obligation of support or to divide marital property; (7) whether an assumption of debt has the effect of providing necessary support to insure that the daily needs of the former spouse and any children of the marriage are met; (8) whether an assumption of debt has the effect of providing support necessary to insure a home for the non-debtor spouse and his or her minor children. Mackey v. Kaufman (In re Kaufman), 115 B.R. 435, 440—11 (Bankr.E.D.N.Y.1990) (numerous citations given); see also Goin v. Rives (In re Goin), 808 F.2d 1391, 1392-93 (10th Cir.1987) (citing Shaver v. Shaver (In re Shaver), 736 F.2d 1314, 1316 (9th" }, { "docid": "18776315", "title": "", "text": "the bankrupt a “fresh start,” this was not to be at the expense of a needy spouse. The policy of the new Bankruptcy Act is therefore similar to the old Act in that payments to third parties which are necessary for the support of the spouse are expressly made non-dis-chargeable. It is appropriate to examine cases decided under the old Act and state court cases as well in order to determine whether attorney’s fees are characterized as alimony. The Seventh Circuit is only one of many courts that held under the old Bankruptcy Act that attorney’s fees awarded to a spouse in an Illinois divorce but paid directly to the attorney are “in the nature of alimony” and non-dischargeable. Matter of Cornish, 529 F.2d 1363 (7th Cir. 1976). See also Matter of Steingesser, 602 F.2d 36 (2nd Cir. 1979); In re Birdseye, 548 F.2d 321 (10th Cir. 1977). The criteria for determining whose obligations the attorney’s fees will be in a divorce action is similar to the criteria for determining whether a spouse is entitled to alimony: the court must consider the financial resources of the parties. Compare Ill.Rev.Stat. ch. 40, § 504 (alimony), with Ill.Rev.Stat. ch. 40, § 508 (attorney’s fees). See also Held v. Held, 73 Ill.App.3d 561, 29 Ill.Dec. 612, 616, 392 N.E.2d 169, 173 (1979). Unlike obligations to other third-party creditors, “[t]he allowance to (her) for solicitors’ fees is based upon the same underlying thought as is an allowance to (her) to buy food, shelter, and clothing .... It has obviously all the qualities of an allowance for support commonly termed ‘alimony.’ ” Merriman v. Hawbaker, 5 F.Supp. 432 (E.D.Ill.1934), quoted in Cornish, 529 F.2d at 1365. The award of attorney’s fees is directly occasioned by the divorce, insures that the spouse’s rights are protected in the divorce proceeding and thus is a necessary aid to the spouse for obtaining alimony, support and maintenance. See discussion in In re Christ, 632 F.2d 1226, 1229-30 (5th Cir. 1980); In re Evan, 2 B.R. 85, 91 (Bkrtcy.W.D.Mo.1979) (both cases decided under the old Act). We hold that the" }, { "docid": "1859323", "title": "", "text": "(C.A.8 1986); Sylvester v. Sylvester, 865 F.2d 1164 (C.A.10 1989); In re Harrell, 754 F.2d 902 (C.A.11 1985); In re Fritz, 227 B.R. 700, 702 (Bkrtcy.S.D.Ind.1997); In re Smith, 114 B.R. 457, 463-64 (Bkrtcy.S.D.Miss.1990); In re Stone, 79 B.R. 633, 639 (Bkrtcy.D.Md.1987); see also In re Chedrick, 98 B.R. 731 (W.D.Pa.1989). As a leading treatise explains: “In In re Calhoun, the Sixth Circuit stated that the inquiry must focus on whether the purpose and effect of the obligation at the time it was created was to provide for the daily needs of the former spouse and any children. The court also held that an additional consideration is the current abilities and needs of the parties. However, virtually all other courts have held that the current financial posture of the parties is not relevant.” COLLIER ON BANKRUPTCY, ¶ 523.11[6][b] (15TH ed.2001) (citations omitted). A requirement that a former spouse’s present need for support or changed circumstances be analyzed in determining dischargeability finds no support in either the language or the legislative history of § 523(a)(5). See In re Harrell, 754 F.2d 902, 906-907 (C.A.11 1985). As that court states: “[t]he language used by Congress in § 523(a)(5) requires bankruptcy courts to determine nothing more than whether the support accurately reflects that the obligation at issue is ‘actually in the nature of alimony, maintenance, or support.’ ” Id., at 906. Further, Defendant’s proposition that a court engage in this sort of inquiry and decide whether an obligation is reasonable presents a real concern to the integrity of the judicial system. Not only would this require federal courts to duplicate state court functions, but federal courts would be modifying state court judgments and embroiling themselves in areas traditionally reserved to state courts. The law recognizes a domestic relations exception to federal jurisdiction that permits federal courts to refrain from acting in matters pertaining to divorce, alimony, or child support claims. Cole v. Cole, 633 F.2d 1083, 1088 (C.A.4 1980); Ankenbrandt v. Richards, 504 U.S. 689, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992). This court will not consider Defendant’s argument that she cannot afford" }, { "docid": "1859322", "title": "", "text": "to pay child support. The record allows one conclusion only that the reason the parties set child support at $0.00 was in recognition of their shared physical and legal custody of the children on comparable incomes (under the child support guidelines, Defendant would have been required to pay only $23.00 a week), and because of their corresponding agreement to share equally in the expenses of their children, including private school tuition. The court must also reject Defendant’s argument, espoused at the summary judgment hearing, that the obligation at issue is unreasonable. All circuits deciding this issue, but one—the Sixth Circuit in In re Calhoun, 715 F.2d 1103 (C.A.6 1983), have held that a court cannot look to evidence of present need or changed circumstances to determine reasonableness of an alimony, support, or maintenance award. Forsdick v. Turgeon, 812 F.2d 801 (C.A.2 1987); In re Gianakas, 917 F.2d 759, 763 (C.A.3 1990); In re Swate, 99 F.3d 1282, 1286 (C.A.5 1996); Boyle v. Donovan, 724 F.2d 681, 683 (C.A.8 1984); Draper v. Draper, 790 F.2d 52 (C.A.8 1986); Sylvester v. Sylvester, 865 F.2d 1164 (C.A.10 1989); In re Harrell, 754 F.2d 902 (C.A.11 1985); In re Fritz, 227 B.R. 700, 702 (Bkrtcy.S.D.Ind.1997); In re Smith, 114 B.R. 457, 463-64 (Bkrtcy.S.D.Miss.1990); In re Stone, 79 B.R. 633, 639 (Bkrtcy.D.Md.1987); see also In re Chedrick, 98 B.R. 731 (W.D.Pa.1989). As a leading treatise explains: “In In re Calhoun, the Sixth Circuit stated that the inquiry must focus on whether the purpose and effect of the obligation at the time it was created was to provide for the daily needs of the former spouse and any children. The court also held that an additional consideration is the current abilities and needs of the parties. However, virtually all other courts have held that the current financial posture of the parties is not relevant.” COLLIER ON BANKRUPTCY, ¶ 523.11[6][b] (15TH ed.2001) (citations omitted). A requirement that a former spouse’s present need for support or changed circumstances be analyzed in determining dischargeability finds no support in either the language or the legislative history of § 523(a)(5). See" }, { "docid": "18545359", "title": "", "text": "the general policy of absolution, or ‘fresh start’ ” so as to “enforce an overriding public policy favoring the enforcement of family obligations.” Shaver v. Shaver (In re Shaver), 736 F.2d 1314, 1315-16 (9th Cir.1984) (citations omitted); In re Harrell, 754 F.2d 902, 906 n. 6 (11th Cir.1985). Whether a debt to a former spouse qualifies as nondischargeable support is said to involve questions of federal rather than state law. Gianakas v. Gianakas (In re Gianakas), 917 F.2d 759, 762 (3d Cir.1990); Sylvester v. Sylvester, 865 F.2d 1164, 1166 (10th Cir.1989). Thus, a label placed upon the obligation by the consent agreement or court order which created it will not determine its subsequent dischargeability in bankruptcy. Joseph v. O’Toole (In re Joseph), 16 F.3d 86, 88 (5th Cir.1994); Sampson v. Sampson (In re Sampson), 997 F.2d 717, 722 (10th Cir.1993). Rather than relying upon such labels, courts will look to factors such as: (1) Whether the obligation under consideration is subject to contingencies, such as death or remarriage; (2) Whether the payment was fashioned in order to balance disparate incomes of the parties; (3) Whether the obligation is payable in installments or a lump sum; (4) Whether there are minor children involved in a marriage requiring support; (5) The respective physical health of the spouse and the level of education; (6) Whether, in fact, there was a need for spousal support at the time of the circumstances of the particular case. See In re Bowsman, 128 B.R. 485, 487 (Bankr.M.D.Fla.1991); see also In re Edwards, 33 B.R. 942, 944 (Bankr.N.D.Ga.1983) (advaneing a standard involving substantially similar points of consideration). Ultimately, as the party objecting to discharge of the debt in question, the marital creditor must carry the burden of proving the debt’s non-disehargeability under section 523(a)(5). See Fed.R.Bankr.P. 4005; see also Gianakas 917 F.2d at 761; In re Long, 794 F.2d 928, 930 (4th Cir.1986). II. The Award of Attorney’s Fees. A. May an Award of Attorney’s Fees which is Intended as Support Come within the Proviso of Section 523(a)(5)? In addressing the dischargeability of the state divorce court’s attorney’s" }, { "docid": "17833987", "title": "", "text": "The parties’ intent is determined by the totality of circumstances at the time of the award, In re Frye, 231 B.R. 71, 73 (Bankr.E.D.Mo.1999); In re Williams, 703 F.2d at 1057-58, but most courts have narrowed the inquiry down to one or more of three main factors: (1) the language and substance of the dissolution decree or separation agreement, In re Kline, 172 B.R. 279, 281 (Bankr.W.D.Mo.1994); In re Peterson, 133 B.R. 508, 512 (Bankr.W.D.Mo.1991); (2) the relative financial circumstances at the time of the dissolution; Holliday v. Kline, 65 F.3d. at 751; In re Stamper, 131 B.R. at 433, 435 (Bankr.W.D.Mo.1991); and (3) the degree to which the obligation enables the recipient to maintain daily necessities. In re Stamper, 131 B.R. at 435; In re Jensen, 17 B.R. 537, 539-40 (Bankr.W.D.Mo.1982) (holding that a debtor’s obligation to pay various joint consumer debts was nondisehargeable where the award was “intended to free money that she [the non-debtor spouse] might otherwise have to pay the debtor’s bills so that she might use it for her own maintenance and support.”). The Court finds that in the present case all three of these factors indicate that the dissolution decree ordering Gerald to assume and pay certain joint debts was intended to function as maintenance. The first factor clearly weighs in favor of a finding that the arrangement in the divorce decree was intended to function as maintenance. The decree explicitly states, “Respondent’s [Gerald’s] assumption and obligation to pay the above referenced joint debts, to the exclusion of the Petitioner [Norma], are in the nature and lieu of spousal maintenance ...” And although this Court is not bound by the determination of the state court as to the nature of the obligation, we believe that due deference should be given to the parties’ or state court’s characterization of the award. In re Stamper, 131 B.R. at 485 (“The Court will not necessarily be bound by the labels attached to the award by the state court, but will give weight to the findings of the prior Court.”); In re Peterson, 133 B.R. at 512 (“In" }, { "docid": "18883689", "title": "", "text": "the agreement to pay attorney’s fees was intended as support, and the evidence included the wife’s poor health, her lack of employment, and the fact that her expenses exceeded her income from social security and other sources. In Gibson, the court held that the award of attorney’s fees was “more consistent with a division of community property and debt than with a support award”, because the state court did not appear to consider the relative need or financial circumstances of the parties in making the award. 103 B.R. at 222. The courts in this district have similarly held that the financial need of the non-debt- or spouse at the time of the award for attorney’s fees is relevant to deciding whether the award is in the nature of alimony, maintenance or support within the meaning of § 523(a)(5). Fitzpatrick v. Schiltz (In re Schiltz), 97 B.R. 671 (Bankr.N.D.Ga.1986); Blanchard v. Booch (In re Booch), 95 B.R. 852 (Bankr.N.D.Ga.1988). In Booch, the court enumerated four factors to consider in determining whether a particular obligation is an item of support: “(1) the disparity of earning power of the parties, (2) the intent of the parties, (3) the adequacy of support and (4) the specific substance of the obligation assumed.” Id. at 855 (citing Balthazor v. Winnebago County, 36 B.R. 656 (Bankr.E.D.Wis.1984)). In Schiltz, the court examined the financial condition of the parties at the time of a child custody modification proceeding and concluded that “the only basis for finding that an award for attorney’s fees in a state court divorce, post-divorce, or child custody proceeding is actually in the nature of support, is to determine whether the award was intended to address a financial necessity of the nondebtor spouse to enable that person to sue or defend such an action.” 97 B.R. at 674 (other citations omitted). In holding that the obligation to pay attorney’s fees was dischargeable, the court in Schütz recognized the existence of conflicting policies and stated “[c]haracterizing all family obligations as support may sweep too broadly and the general rule that exceptions to discharge should be narrowly construed" }, { "docid": "23611866", "title": "", "text": "Schuermann, 607 P.2d 619, 621, 94 N.M. 81 (1980). To insure this the New Mexico Supreme Court stated it was important for trial judges to liberally award attorney fees in a custody case so that economic disparity between the parties would not cause oppression. “To do otherwise would directly effect a parent’s ability to present his or her case and upon the trial judge’s ability to determine which parent can provide best for a child’s welfare.” Id. at 622. Allowing counsel fees within a divorce action enables the wife to be on an equal footing and these fees are on the same basis as alimony or other forms of support, therefore such counsel fees are found nondis-chargeable in Allison v. Allison, 150 Colo. 377, 372 P.2d 946 (1962). Attorney fees for representing a child in a divorce proceeding have also been found nondischargeable. In re Morris, 14 B.R. 217 (Bkrtcy.D.Colo.1981). The Bankruptcy Court stated an analysis of 11 U.S.C. Sections 727(b), 1328(c)(2) and 523(a)(5) showed “a Congressional judgment that the need for enforcement of obligations arising out of the family relationship and the stability generated thereby outweighs the general bankruptcy goal of fresh start.” Id. at 220. It was found that attorney fees and costs awarded to an ex-wife in an attempt to collect child support obligations of the Debtor can not be separated from the Debtor’s duty to support his child and are nondischargeable in the matter of In re Mineer, 11 B.R. 663 (Bkrtcy.D.Colo.1981). The 10th Circuit, in examining whether an award of attorney fees was a form of alimony and support or property settlement, noted that fees awarded as a result of defending custody matters are allowed as part of a court’s continuing jurisdiction to modify alimony and custody orders. Citing cases from the 1st, 5th, 7th and 9th Circuits, the Court found itself in accord with the “general rule” that attorney fees awarded in a divorce proceeding are treated as a form of alimony and not dischargeable in a bankruptcy proceeding In re Birdseye, 548 F.2d 321 (10th Cir.1977). In looking at all these factors, this" }, { "docid": "16108125", "title": "", "text": "B.R. 464, 467-69 (Bkrtcy.S.D.Cal.1981) (nondischargeable); Janashak v. Demkow (In re Demkow), 8 B.R. 554, 555 (Bkrtcy.N.D.Ohio 1981) (nondischargeable); A. A. Legal Clinic, Ltd. v. Wells (In re Wells), 8 B.R. 189, 193 (Bkrtcy.N.D.Ill. 1981) (nondischargeable) (Illinois law); Bennett v. Knabe (In re Knabe), 8 B.R. 53, 56-57 (Bkrtcy.S.D.Ind.1981) (nondischargeable) (Indiana law); Bell v. Bell (In re Bell), 5 B.R. 653, 655 (Bkrtcy.W.D.Okla.1980) (nondischargeable) (Oklahoma law); Pelikant v. Richter (In re Pelikant), 5 B.R. 404, 407-08 (Bkrtcy.N.D.Ill. 1980) (nondischargeable) (Illinois law); with In re Crawford, 8 B.R. 552 (Bkrtcy.D.Kan.1981) (dischargeable because fees owed to spouse’s attorney rather than to spouse); Asgeirson v. Delillo (In re Delillo), 5 B.R. 692, 694 (Bkrtcy.D. Mass. 1980) (same); Monday v. Allen (In re Allen), 4 B.R. 617, 620 (Bkrtcy.E.D.Tenn.1980) (same). . Federal courts have generally held a debt for attorney’s fees to be nondischargeable under section 17(a)(7) when the fees are awarded to a bankrupt’s spouse in a divorce action. See DuBroff v. Steingesser (In re Steingesser), 602 F.2d 36, 38 (2d Cir. 1979) (New York law); Brody & Brody v. Birdseye (In re Birdseye), 548 F.2d 321, 323-25 (10th Cir. 1977) (Connecticut law); Schiller v. Cornish (In re Cornish), 529 F.2d 1363, 1364-65 (7th Cir. 1976) (Illinois law); Nunnally v. Nunnaiiy (In re Nunnaliy), 506 F.2d 1024, 1026-27 (5th Cir. 1975) (Texas law); Damon v. Damon, 283 F.2d 571, 573-74 (1st Cir. 1960) (Maine law); In re Hargrove, 361 F.Supp. 851, 853-54 (W.D.Mo.1973) (Missouri law) (state post-divorce proceeding); Gagnon v. Gagnon (In re Gagnon), No. BK-79-52 (Bankr.D.Me. April 29, 1980) (Maine law); Mahoney v. Smith (In re Smith), 3 B.R. 224, 231-32 (Bkrtcy.E.D.Va.1980) (District of Columbia law). But see Krings v. Moyer, 13 B.R. 436 (Bkrtcy.W.D.Mo.1981) (Missouri law). . Catlow also argues that section 17(a)(7) is unconstitutional because, in failing to make alimony paid to a husband nondischargeable, it creates a gender-based distinction violative of the Due Process Clause of the Fifth Amendment. Catlow, however, did not raise this issue before either the bankruptcy court or the district court. We therefore refuse to consider the issue on appeal. See Albin v. Albin (In re" }, { "docid": "5179170", "title": "", "text": "cases is now in accord with the majority view. See, Annotation, Debts for Alimony, Maintenance, and Support as Exceptions to Bankruptcy Discharge, Under § 523(a)(5) of Bankruptcy Code of 1978 (11 USCS § 523(a)(5)), 69 A.L.R. Fed. 403, § 6b at 419-430 (1984) (Notably, the 1989 Supplement to 69 A.L.R. Fed. lists Eighteen (18) new cases holding that debts awarded for a spouses attorney’s fees are not dischargeable under § 523(a)(5), and no new cases allowing discharge.); Ravin, Ro-sen, The Dischargeability in Bankruptcy of Alimony, Maintenance and Support Obligations, 60 Am.Bankr.L.J. 1, 17 (1986). Other courts have held that divorce related attorney’s fees are nondischargeable when the litigant awarded fees was successful in securing support in the divorce action. In re Angel, 105 B.R. 825, 832 (Bankr.S.D.Ohio 1989); In re Stanjevich, 96 B.R. 138, 141 (Bankr.S.D.Ohio 1989); In re Jackson, 58 B.R. 72, 74 (Bankr.W.D.Ky.1986). Under this criteria, the attorney’s fees would also be nondischargeable as Mrs. Portaro was awarded support in the judgment of divorce. Sixth, the Debtor asserts that his obligation to pay for part of his child’s college education should be dischargeable. The record reflects that the Debtor initially requested that he be made responsible for the educational expenses. Transcript of Decision of the Court on the Judgment of Divorce, at 22-24. The state court complied with that request. Other courts have held obligations to pay higher education expenses to be nondischargeable. See, Sylvester v. Sylvester, 865 F.2d 1164 (10th Cir.1989); In re Harrell, 754 F.2d 902 (11th Cir.1985); Boyle v. Donovan, 724 F.2d 681 (8th Cir.1984); In re Magee, 98 B.R. 62 (Bankr.M.D.Fla.1989); In re Pierce, 95 B.R. 154 (Bankr.N.D.Cal.1988); In re Brown, 74 B.R. 968 (Bankr.D.Conn.1987); In re Bedingfield, 42 B.R. 641 (S.D.Ga.1983). It appears that Mr. Portaro’s obligation to pay a portion of the college expenses of his child were intended as support, and will have that effect when and if the child attends college. Accordingly, under the first two prongs of the Calhoun test, the debt is nondischargeable. Seventh, the Debtor has contested the award of a share of the present value of" }, { "docid": "12289826", "title": "", "text": "65 F.3d 749, 751 (8th Cir.1995). To make this determination, a bankruptcy court should undertake “a simple inquiry as to whether the obligation can legitimately be characterized as support, that is, whether it is in the nature of support”. In re Harrell, 754 F.2d 902, 906 (11th Cir. 1985) If the debt is in the nature of “alimony, maintenance or support,” the debt is not dischargeable. The Fifth Circuit has set forth a list of factors to consider in determining this issue, including intent of the parties. See Dennis v. Dennis, 25 F.3d 274, 279 (5th Cir.1994); In re Davidson, 947 F.2d 1294, 1296 (5th Cir.1991); In re Benich, 811 F.2d 943, 945 (5th Cir.1987). In Dennis, the Fifth Circuit stated: [T]his Court set forth a nonexclusive list of factors which bankruptcy courts should review in deciding whether a divorce obligation constitutes alimony, maintenance, or support. The considerations include the parties’ disparity in earning capacity, their relative business opportunities, their physical condition, their educational background, their probable future financial needs, and the benefits each party would have received had the marriage continued. In the context of § 523(a)(5), “substance prevails over form.” In re Warren, 160 B.R. 395, 398 (Bankr.D.Me. 1993); In re Sweck, 174 B.R. 532, 534 (Bankr.D.R.I., 1994)(Code requires the bankruptcy court “to determine the nature of the debts, regardless of the labels placed on them by the parties or the family court”). In conducting this inquiry, a court cannot rely solely on the label used by the parties. As other courts have recognized, “it is likely that neither the parties nor the divorce court contemplated the effect of a subsequent bankruptcy when the obligation arose.” In re Gianakas, 917 F.2d 759, 762 (3rd Cir.1990) (citations omitted). Applying federal principles, the bankruptcy court must examine the circumstances that existed at the time that the obligation was created to ascertain whether it then functioned to provide support to the non-Debtor obligee. In re Sweck, 174 B.R. at 535; In re Fitzgerald, 9 F.3d 517 (6th Cir.1993); In re Sampson, 997 F.2d 717, 723 (10th Cir.1993); In re Gianakas, 917" }, { "docid": "4583715", "title": "", "text": "the state court that had issued the divorce decree \"specifically characterized the attorney fee award as a support obligation.” Id. at 544. That state court order provided: the Decree of January 24, 2008, is clarified to provide that the attorney's fees awarded in this Court’s Decree were awarded to be paid on behalf of the Wife as a consequence of the attorney's efforts in establishing an award to the Wife for her support and maintenance as well as the support and maintenance of the minor children. That due to the parties’ disparate income status as found and indicated by this Court’s findings, it would not be possible for the Wife to satisfy the reasonable attorney’s fees incurred during the litigation of this matter and that it would be necessary for the Husband to pay the same on the Wife’s behalf. That the Court intended for said award to be in the nature of support for the Wife due to her inability to pay the same. Andrews, 434 B.R. at 544. .Many federal courts have held that the labels attached by state courts to the awards in a divorce case, such as alimony, maintenance, support or equitable distribution, while instructive, are not determinative as to priority or nondischargeable status. In re Brody, 3 F.3d 35, 39 (2d Cir.1993); Forsdick v. Turgeon, 812 F.2d 801, 802-03 (2d Cir. 1987); see also In re Evert, 342 F.3d 358, 368 (5th Cir.2003); In re Werthen, 329 F.3d 269, 273 (1st Cir.2003); In re Reines, 142 F.3d 970, 972 (7th Cir.1998); Sylvester v. Sylvester, 865 F.2d 1164, 1165-1166 (10th Cir.1989); Tilley v. Jessee, 789 F.2d 1074, 1077-1078 (4th Cir. 1986); Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir.1984); In re Williams, 703 F.2d 1055, 1057-58 (8th Cir.1983). . Section 523(a)(5) at that time read: A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt ... (5) to a spouse, former spouse, or child of the debt- or, for alimony to, maintenance for, or support of both spouse or child, in connection with a separation" }, { "docid": "23611867", "title": "", "text": "arising out of the family relationship and the stability generated thereby outweighs the general bankruptcy goal of fresh start.” Id. at 220. It was found that attorney fees and costs awarded to an ex-wife in an attempt to collect child support obligations of the Debtor can not be separated from the Debtor’s duty to support his child and are nondischargeable in the matter of In re Mineer, 11 B.R. 663 (Bkrtcy.D.Colo.1981). The 10th Circuit, in examining whether an award of attorney fees was a form of alimony and support or property settlement, noted that fees awarded as a result of defending custody matters are allowed as part of a court’s continuing jurisdiction to modify alimony and custody orders. Citing cases from the 1st, 5th, 7th and 9th Circuits, the Court found itself in accord with the “general rule” that attorney fees awarded in a divorce proceeding are treated as a form of alimony and not dischargeable in a bankruptcy proceeding In re Birdseye, 548 F.2d 321 (10th Cir.1977). In looking at all these factors, this Court finds it is in the best interests of the children to have custody matters fully and fairly litigated. Insuring this is done is part of the debtor’s duty to support his children. The petitioner in this case has been awarded the attorney fees to put her on an equal footing to pursue the matter of custody and support. By full representation the trial judge can better determine what is for the best interests to insure the welfare of the children. This Court therefore finds that the attorney fees in the amount of $76,-377.00 plus costs are a nondischargeable debt under 11 U.S.C. Section 523(a)(5). Further this Court finds that the Plaintiff should be granted relief from stay to pursue collection of these amounts. The next question to be determined is the nature of the $10,000.00 awarded to the former wife as costs expended by her in the pursuit of the custody of the children and seeking to collect the back child support. This would also appear to be an award to put the spouse" } ]

[ { "docid": "22125968", "title": "", "text": "which limits use of such evidence to the issue on which it was originally introduced. It was perhaps only initially introduced on the issue of likelihood of confusion due to uncertainty as to whether the validity of Carbide’s mark was in issue, see part I.A., and confusion over whether incontestability prevented EverReady from raising descriptiveness as a defense. We have held that this defense should not have been considered in part I.B. In each of the surveys an insignificant number of persons named Carbide as the maker of defendants’ products, but in excess of 50% of those interviewed associated Carbide products, such as batteries and flashlights, with defendants’ mark. The only conclusion that can be drawn from these results is that an extremely significant portion of the population associates Carbide’s products with a single anonymous source. The survey questions were not designed to establish secondary meaning; but once the issue of descriptiveness was improperly considered, the survey results could not be ignored. Additionally, we find it difficult to believe that anyone living in our society, which has daily familiarity with hundreds of battery-operated products, can be other than thoroughly acquainted with the EVEREADY mark. While perhaps not many know that Carbide is the manufacturer of EVEREADY products, few would have any doubt that the term was being utilized other than to indicate the single, though anonymous, source. A court should not play the ostrich with regard to such general public knowledge. We hold that the district court’s determination that there was inadequate evidence to find that EVEREADY had acquired a secondary meaning is clearly erroneous. D. Summary Once Carbide’s mark was established as incontestable, the district court should not have considered descriptiveness as a defense to plaintiff’s suit. The only grounds upon which the validity of the mark could have been challenged were those enumerated in § 1115(b). Regardless of incontestability, plaintiff clearly established the validity of its mark on the basis of secondary meaning even if we were to accept the district court’s conclusion that the mark is descriptive. II. Likelihood of Confusion Section 1114, in relevant part, provides" } ]

[ { "docid": "2262590", "title": "", "text": "found that a slightly different order better facilitates the analysis of the particular issues presented by this case. . But marks that are merely descriptive (without a secondary meaning) are generally weak and not entitled to strong protection. A mark is descriptive with a secondary meaning when the mark \"is interpreted by the consuming public to be not only an identification of the product or services, but also a representation of the origin of those products of services.\" In general [a secondary meaning] is established through extensive advertising which creates in the minds of consumers an association between the mark and the provider of the services advertised under the mark. Commerce Nat’l Ins. Serv. Inc., 214 F.3d at 438. (quoting Scott Paper Co., 589 F.2d at 1228); see also Ford Motor Co., 930 F.2d at 292 (listing a \"non-exclusive list of factors which may be considered [in determining whether a mark has achieved a secondary meaning,] including] the extent of sales and advertising leading to buyer association, length of use, exclusivity of use, the fact of copying, customer surveys, customer testimony, the use of the mark in trade journals, the size of the company, the number of sales, the number of customers, and actual confusion.”); Charles Jacquin Et Cie, Inc. v. Destileria Serralles, Inc., 921 F.2d 467, 476 (3d Cir.1990) (“While consumer surveys are useful, and indeed the most direct method of demonstrating secondary meaning and likelihood of confusion, they are not essential where, as here, other evidence exists.”). . In A & H Sportswear, we recently held, Although the conceptual strength of a mark is often associated with the particular category of \"distinctiveness” into which a mark falls (i.e., arbitrary, suggestive, or descriptive), that is not the only measure of conceptual strength. This is because the classification system's primary purpose is to determine whether the mark is protectable as a trademark in the first place — that is, to determine whether consumers are likely to perceive the mark as a signifier of origin, rather than as a mere identification of the type of product. The classification of a. mark" }, { "docid": "5094215", "title": "", "text": "and 1125(a) depends on a determination that the defendant’s use of a two colored stripe diagonally across its packaging is likely to cause confusion, or to cause mistake or deceive, not merely of purchasers nor simply as to source of origin. The Lanham Act specifically recognizes that not only words or names may be trademarks but that the term “trademark” also includes “any * * * symbol or device” adopted by a manufacturer to identify his goods and distinguish them from those manufactured or sold by others. 15 U.S.C. § 1127. Section 43(a) of the Lanham Act encompasses a broad spectrum of marks, symbols, design elements and characters which the public directly associates with a single producer or its products and that only a likelihood of confusion or deception need be shown in order to obtain equitable relief. The law regarding trademark infringement is well-settled. In order to establish protection for its unregistered mark, plaintiff must establish that the double stripes are a non-functional part of the product and that it has acquired a secondary meaning. Dallas Cowboys v. Pussy Cat Cinema, 604 F.2d 200 (2d Cir.1979). To determine whether a product has attained secondary meaning, the Court must determine whether the mark has been so associated in the mind of consumers with the entity that it identifies that the goods sold by that entity are distinguished by the mark or symbol from goods sold by others. Thus, the question is whether the primary significance of the double stripes points to the producer of the product. Plaintiff has failed to carry its burden with credible evidence to establish that the Mennen stripes have acquired secondary meaning. Moreover, there is no actual or subliminal similarity between the Mennen stripes and the Gillette stripe, as we shall see later. Mennen set forth survey evidence that purported to show that 63% of the public canvassed, associated the Mennen stripes with the Mennen company. However, this survey was shown to be fatally defective and untrustworthy in a number of ways. In this survey, respondents were shown the Mennen stripes and asked: “Please look at" }, { "docid": "19767618", "title": "", "text": "dressing, see Henri’s Food Prods. Co. v. Tasty Snacks, Inc., 817 F.2d 1303, 1306 (7th Cir.1987); see also 2 McCarthy § 12:19. A descriptive term is eligible for trademark protection only if it acquires distinctiveness — also known as secondary meaning — such that the public has come to associate the mark primarily with its user. See PaperCutter, 900 F.2d at 562 (“[D]e-scriptive terms may, unlike generic terms, become entitled to protection if the ‘descriptive meaning’ of a word becomes sub ordinate and the term instead becomes primarily a symbol of identification, a process by which, put another way, the term acquires ‘secondary meaning.’ ”). In contrast, a suggestive mark is one that does not describe, but merely suggests, the features of a product, requiring the purchaser to use “imagination, thought and perception to reach a conclusion as to the nature of goods.” Time, Inc. v. Petersen Pub. Co. L.L.C., 178 F.3d 113, 118 (2d Cir.1999) (internal quotation marks and citation omitted). Examples of suggestive marks include “At A Glance” for calendars, see Cullman Ventures, Inc. v. Columbian Art Works, Inc., 717 F.Supp. 96, 119-20 (S.D.N.Y.1989), “Citibank” for an urban bank, see Citigroup Inc. v. City Holding Co., 171 F.Supp.2d 333 (S.D.N.Y.2001), “Habitat” for home furnishings, see Habitat Design Holdings, Ltd. v. Habitat, Inc., 436 F.Supp. 327, 331 (S.D.N.Y.1977), and “L’eggs” for women’s hosiery, see Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 465 (4th Cir.1996); see also 2 McCarthy § 11:72. A suggestive mark is considered inherently distinctive, and is protected without a showing of secondary meaning. Lastly, arbitrary marks are those that employ common words in an uncommon way, such as “Ivory” for soap, while fanciful marks use words that were coined specifically to serve as a trademark, such as “Kodak” or “Exxon.” See Gruner + Jahr USA Publ’g v. Meredith Corp., 991 F.2d 1072, 1075-76 (2d Cir.1993). Arbitrary and fanciful marks are, like suggestive ones, inherently distinctive, and they receive the highest degree of trademark protection. Id. at 1076. Contrary to defendants’ assumption, the classification of a mark “is a question of fact left to the" }, { "docid": "5989655", "title": "", "text": "Co. v. Stuart Hale Co., 1 F.3d 611, 618 (7th Cir.1993) (holding that a plaintiffs consumer survey can be evidence of actual confusion). And evidence of actual confusion (so long as it is not de minimis) ordinarily is sufficient to create a genuine issue of material fact on the issue of likelihood of confusion. See Thane Intern., Inc. v. Trek Bicycle Corp., 305 F.3d 894, 902 (9th Cir.2002) (“[I]f a party produces evidence from which a reasonable jury could surmise that an appreciable number of people are confused about the source of the product, then it is entitled to a trial on the likelihood of confusion.”) (emphasis in original and internal quotation omitted); Thomas & Betts Corp. v. Panduit Corp., 138 F.3d 277, 297 (7th Cir. 1998) (“[Ejvidence of actual confusion, where it exists, is entitled to substantial weight.”). The fact that some of Top Quality’s promotional materials disclaimed association with Harley merely underscores the need for a jury to resolve the conflicting evidence relating to this issue. D. Unfair Competition The district court’s ruling on Harley’s unfair competition claim was premised on its mistaken belief that Harley’s “HOG” mark is generic. Because we conclude that the “HOG” mark is not generic, we reverse the district court’s ruling on this claim as well. III. Conclusion For the foregoing reasons, we ReveRSe the district court’s ruling granting summary judgment in Top Quality’s favor and RemaND the case for further proceedings consistent with this opinion. . The Trademark Office issued the “HOG’’ mark after Harley filed this suit. The parties do not discuss what legal effect this may have on the burden of proof, see 15 U.S.C. 1115, and we believe the issue, if raised, is one best resolved in the first instance by the district court. . For example, if an apple-seller names its company \"APPLE,” its name is generic. McCarthy, supra at § 12:1. If an apple-seller names its product \"TASTY,” its name is descriptive. Id. at § 11:18. . Top Quality does not argue that Harley’s mark lacks secondary meaning, and neither party discusses whether Harley is required to" }, { "docid": "18232852", "title": "", "text": "the appearance of an affiliation between plaintiff and defendant, leading to consumer confusion. 1. Secondary meaning Trade dress has secondary meaning if there exists “a mental association in buyers’ minds between the alleged mark and a single source of the product.” Packman v. Chicago Tribune Co., 267 F.3d 628, 641 (7th Cir.2001) (citing 2 McCarthy, Trademarks and Unfair Competition, § 15:5, at 15-9 (4th ed.2001)); see also Qualitex v. Jacobson Products Co., Inc., 514 U.S. 159, 163, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995) (secondary meaning acquired when “in the minds of the public, the primary significance of a product feature ... is to identify the source of the product rather than the product itself’). Secondary meaning arises when a mark “has been used so long and so exclusively by one company in association with its goods or services that the word or phrase has come to mean that those goods or services are the company’s trademark.” Packman, 267 F.3d at 641. The fact that the Trademark Office has issued a federal trademark registration for plaintiffs red knob mark creates a presumption that the mark is valid and that plaintiff has established secondary meaning. 15 U.S.C. §§ 1057(b) and 1115(a); Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 936 (7th Cir.1986) (registration of mark “entitles the plaintiff to a presumption that its registered trademark is not merely descriptive or generic, or, if merely descriptive, is accorded secondary meaning”). Defendant may overcome this presumption with evidence that the mark lacks secondary meaning, Packman v. Chicago Tribune Co., 267 F.3d 628, 639 (7th Cir.2001), or by showing that plaintiffs trade dress is functional. Eco Manufacturing LLC v. Honeywell International, Inc., 357 F.3d 649, 653 (7th Cir.2003). The Court of Appeals for the Seventh Circuit considers the following seven factors in determining whether a mark has acquired secondary meaning: (1) direct consumer testimony and consumer surveys; (2) exclusivity, length and manner of use; (3) amount and manner of advertising; (4) amount of sales and number of customers; (5) established place in the market; and (6) proof of intentional copying. Echo Travel," }, { "docid": "20293370", "title": "", "text": "must be a more protected mark than a descriptive mark. As a result, she finds that “BREAK & BAKE” is a suggestive mark without ever indicating what it suggests. The issue in this case, though, is whether the term “BREAK & BAKE” describes this particular type of cookie dough or is a term that requires imagination, thought or perception to conjure up an association to the product. Based on the Michaelis study, as well as on the evidence explained in / & J Snack I, there is no genuine issue about whether “BREAK & BAKE” could be classified as a suggestive term. It cannot. As a result, the term is descriptive and this Court cannot deny summary judgment based on J & J’s assertion that the term is a protectable suggestive mark. (3) Whether the mark has secondary meaning Because the term is descriptive, this Court must decide if it has secondary meaning because descriptive terms are only protected by trademark law if they have acquired a secondary meaning for the consuming public. Two Pesos Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). Secondary meaning is shown when the “primary significance of the term in the minds of the consuming public is not the product but the producer.” FM 103.1, 929 F.Supp. at 194. Generally, secondary meaning is established by extensive advertising which connects the mark to the provider advertising the mark in the minds of the target consumer. J & J Snack I, 149 F.Supp.2d at 152 (citing Commerce Nat’l, 214 F.3d at 438). The more descriptive the mark, the heavier the evidentiary burden is on the plaintiff to establish secondary meaning. Id. (citing 2 McCarthy, Trademarks and Unfair Competition § 15:33 at 15-51). The Third Circuit has listed nonexclusive factors to consider when determining the existence of secondary meaning: 1) the extent of sales and advertising that leads to consumer association; 2)length of use; 3) exclusivity of use; 4) the fact of copying; 5) customer surveys; 6) customer testimony; 7) the use of the mark in trade journals; 8) the" }, { "docid": "6707517", "title": "", "text": "Mexican-style ice cream what “ge-lato” is to Italian ice cream or “mochi” is to Japanese ice cream. See id. PLM’s equivocation, though not ideal in a post-trial briefing, is understandable. This is admittedly a difficult factual question to answer. The TTAB could not reach a clear conclusion, stating that the term “has some significance suggesting a connection with ‘Michoacan’” but that its meaning and usage in the United States were unclear. TTAB Decision at *14. If the marks are descriptive, then PROLACTO must establish secondary meaning. Here, the same evidence that would be' required to establish secondary meaning would also’ resolve whether “Mi-choacana” is arbitrary or descriptive. Establishing secondary meaning requires “proof that the public recognizes only one source of the product or service.” Blinded Veterans, 872 F.2d at 1040. “[A] term has acquired secondary meaning when ‘the primary significance of the term in the minds of the consuming public is not the product but the producer.’ ” Id. (quoting Kellogg Co. v. Nat’l Biscuit Co., 305 U.S. 111, 118, 59 S.Ct. 109, 83 L.Ed. 73 (1938)); see also Fernandez v. Jones, 653 F.Supp.2d 22, 29-30 (D.D.C.2009) (‘“The prime element of secondary meaning is a mental association in buyers’ minds between the alleged mark and a single source of the product.’ ” (quoting 2 McCarthy on Trademarks § 15:5 (4th ed. 2009)). “To acquire a secondary meaning in the minds of the buying public, a labelled product, when shown to a prospective customer, must prompt the reaction, ‘That is the product I want because I know that all. products with that label come from a single source and have the same level of quality.’ ” Id. at 30 (citation omitted); see also 2 McCarthy on Trademarks § 15:11 (4th ed. 2009). In this Circuit, commonly considered evidence for ascertaining whether secondary meaning has attached to a mark includes survey evidence, the length and manner of use of the name, the nature and extent of advertising and promotion of the name, the volume of sales, and instances of actual confusion. See Libya v. Miski, 889 F.Supp.2d 144, 155 (D.D.C.2012). The Court’s" }, { "docid": "3985384", "title": "", "text": "refers to a mark that “has become distinctive of the applicant’s goods in commerce, i.e., to a mark that consumers associate with a producer or distributor rather than with the product itself.” Best Buy Warehouse v. Best Buy Co., 920 F.2d 536, 537 (8th Cir. 1990) (citations omitted), cert. denied, — U.S.-, 111 S.Ct. 2893, 115 L.Ed.2d 1058 (1991). As evidence that a mark has acquired secondary meaning, courts will accept direct evidence of customer confusion, or, because direct evidence may be difficult to find, evidence from consumer surveys showing likelihood of confusion. Id. “Cellular Sales” falls within the definition of a generic trade name. The terms “cellular” and “sales” individually are generic in nature. Moreover, even when combined, “cellular sales” does not describe a particular product, but instead describes the sale of cellular telephone equipment, which is a genus or class of products, and in no way describes the particular cellular phones sold by Webb. In fact, the record shows that there are eight unrelated firms, in addition to Cellular Sales and Cellular Sales North, listed in the Kansas City phone book that use the term “cellular” in their names. Further, Webb himself has listed Cellular Installation, Cellular Rental, Cellular Repair and Cellular Service in the white pages of the phone book, all of which are answered at Webb’s phone number. In First Federal, supra, 929 F.2d at 384, this court concluded that “First Federal” is not a generic phrase, reasoning that “First Federal” is not the same as savings and loan institutions generally. The court found that “First Federal” does not refer generically to banks and savings and loans as a group, but instead describes a “first-rate (or first in time in the area), federally chartered savings and loan.” Id. In contrast, there are a number of companies that sell cellular telephone equipment and access to a cellular telephone network; these companies are accurately described generically as “cellular sales” companies. The term “cellular sales” defines this category of companies selling cellular telephone equipment. Even if we were to find that “Cellular Sales” was entitled to some trade name" }, { "docid": "13793294", "title": "", "text": "product as plaintiff’s goods. Plaintiff advised the court that it had attempted, although due to misinformation unsuccessfully at least in Maryland, to shop stores where both plaintiff’s and defendant’s ties were sold. Where plaintiff was successful in selecting stores carrying both plaintiff’s and defendant’s ties the sales people had no reason or motive for offering the shopper ties other than plaintiff’s ties if “Color Guide” had indicated source origin to the clerks. Where only Wembley ties were available the sales people in offering to the shoppers plaintiff’s ties were not doing so in a meaningful response to a request for a “Color Guide” tie. The survey testimony conclusively shows that plaintiff’s mark is descriptive, that it is not distinctive or capable of designating origin and that, after years of use of the alleged mark and after years of intensive advertising in consumer and trade magazines and on television, “Color Guide” has not even acquired a secondary meaning. There can be no likelihood of confusion as to the source of goods when the designation purposely chosen by plaintiff is, because of its descriptive nature, incapable of designating source. The fact that one buyer out of all of those questioned apparently connected the name “Color Guide” with Wembley does not establish distinctiveness or secondary meaning. Proof of distinctiveness requires more than proof of the existence of one person or of even a relatively small number of people who associate the words “Color Guide” with Wembley. “Distinctiveness means that the primary meaning of the word, in this limited field, is as a designation of source rather than of a characteristic of the product. * * * To show that a common descriptive name has acquired a de facto secondary meaning, in the sense that some or even many people have come to associate it with a particular producer, is not in itself enough to show that it has become entitled to registration as a trademark.” Roselux Chemical Co. v. Parsons Ammonia Company, C.C.P.A.1962, 299 F.2d 855, 862, 863. For all of the foregoing reasons the court holds that plaintiff’s marks were not entitled" }, { "docid": "23098141", "title": "", "text": "find the additional names of these businesses significantly more distinctive than the more general additional words that Discount applies to its business name. See infra. We also find them more specialized than and less related to Safeway Stores’ retail trade than is Discount. See infra. We do not, however, imply any judgment concerning whether these third-party users are themselves illegally using the word Safeway. . Had we held, as Discount argues, that the word Safeway is merely descriptive, it could be protected only if the word had acquired a secondary meaning peculiar to Safeway Stores. See Sun Banks, supra, 651 F.2d at 315. Once a mark is shown at least to have a suggestive quality, secondary meaning need not be shown. Id. . The parties attempted to supplement the number of instances of actual confusion with market surveys. The district court, finding the surveys conflicting and of little value, appeared to give them little weight. Its action followed the trend of cases in the former Fifth Circuit, in which market surveys have not fared well as evidence in trademark cases. See Amstar, supra, 615 F.2d at 264; Holiday Inns, Inc. v. Holiday Out in Am., 481 F.2d 445, 448 (5th Cir. 1973). In this case, discussion of the surveys would require an extended and intricate analysis that would, at most, conclude that there is some added indication of confusion. Since we find the evidence of a Lanham Act violation by Discount to be sufficiently clear even without whatever additional evidence of likelihood of confusion the survey might provide, such a discussion would be of little value. . Compare Junior Food Stores of West Florida v. Jr. Food Stores, Inc., 226 So.2d 393, 396-98 (Fla. 1969), in which the court noted that, under the common law rule governing trademark protection, it was necessary to inquire into the territorial scope of a business in order to determine whether there was any competition with or confusion between a prior user of a trade name and a subsequent user. Absent overlap in territorial scope, there was no unfair use of a prior user’s trade" }, { "docid": "5507483", "title": "", "text": "Generic terms generally do not have common alternatives, thus warranting a court’s reluctance to grant protection to such trademarks because of a fear of giving one competitor the advantage of the exclusive use of a common term in an industry. Id. A ready availability of alternatives indicates that a party is using a descriptive, rather than a generic, mark in its operations. Id. The trial court held that there is no genuine issue that “Leelanau Cellars” is a descriptive mark. (J.A. 19) For a descriptive service mark to be protected, Appellant must also demonstrate that its mark has a secondary meaning. Appellant must show that “the public identifies the trademark with a particular ‘source’ rather than the product.” Wynn Oil, 839 F.2d at 1190. In determining whether a particular mark has developed a secondary meaning, a trial court must consider the following factors: (1) duration and manner of usage; (2) effort and expenditure of money toward developing a reputation; (3) survey evidence; (4) sales volume; and (5) extent of advertising expense. See also Sprinklets Water Ctr., Inc. v. McKesson Corp., 806 F.Supp. 656, 661 (E.D.Mich.1992). With regard to the secondary meaning issue, the trial court below stated, A “mark’s strength” is gauged by its “distinctiveness and degree of recognition in the marketplace.” Homeowners Group, Inc. v. Home Mktg. Specialists, Inc., 931 F.2d 1100, 1107 (6th Cir.1991). Leelanau is a geographically descriptive mark which, without a showing of acquired secondary meaning, is inherently weak. (J.A. 29). The district court found that the mark lacked strength in large part due to its ruling that the record is “completely devoid of any consumer survey ... that consumers understand ‘Leelanau,’ when used in connection with wine, to refer to [Appellant].” (J.A. 31). During oral argument on appeal, Appellant asserted that the issues regarding the presumption of the mark’s secondary meaning and the likelihood of confusion established by Appellant were un-rebutted by Appellee. Appellee did not dispute this fact during oral argument. This assertion is confirmed within the district court’s August 13, 2002 order and in its February 14, 2003 order when it stated that" }, { "docid": "3985383", "title": "", "text": "is well established that generic terms are not entitled to trademark protection because such words are in “the public domain and available for all to use,” Hallmark Cards, Inc. v. Hallmark Dodge, Inc., 634 F.Supp. 990, 997 (W.D.Mo.1986), and because such terms “describ[e] not only a particular product or service but also a type or kind of product or service.” First Fed. Sav. & Loan Ass’n of Council Bluffs v. First Fed. Sav. & Loan Ass’n of Lincoln, 929 F.2d 382, 383 (8th Cir.1991). The standard of proof that must be met by the plaintiff in seeking injunctive relief varies depending upon the type of mark at issue. If the mark is the strongest possible mark — an arbitrary or fanciful mark — it is “entitled to maximum legal protection and do[es] not require proof of secondary meaning.” Hallmark Cards, supra, 634 F.Supp. at 998. If the mark is the weakest protectable mark — a descriptive trademark or trade name — the plaintiff must prove that the mark has an accepted “secondary meaning.” Secondary meaning refers to a mark that “has become distinctive of the applicant’s goods in commerce, i.e., to a mark that consumers associate with a producer or distributor rather than with the product itself.” Best Buy Warehouse v. Best Buy Co., 920 F.2d 536, 537 (8th Cir. 1990) (citations omitted), cert. denied, — U.S.-, 111 S.Ct. 2893, 115 L.Ed.2d 1058 (1991). As evidence that a mark has acquired secondary meaning, courts will accept direct evidence of customer confusion, or, because direct evidence may be difficult to find, evidence from consumer surveys showing likelihood of confusion. Id. “Cellular Sales” falls within the definition of a generic trade name. The terms “cellular” and “sales” individually are generic in nature. Moreover, even when combined, “cellular sales” does not describe a particular product, but instead describes the sale of cellular telephone equipment, which is a genus or class of products, and in no way describes the particular cellular phones sold by Webb. In fact, the record shows that there are eight unrelated firms, in addition to Cellular Sales and Cellular Sales" }, { "docid": "3352884", "title": "", "text": "manner of advertising under a claimed mark, (3) the length and manner of use of a claimed mark, and (4) whether use of a claimed mark has been exclusive. See Committee for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 822 (9th Cir.1996). Association of a mark with a particular product is most often proven by use of consumer surveys, though where there has been substantial advertising under the mark no such survey is explicitly necessary for secondary meaning. See id. Here, Plaintiff has provided almost no evidence of any secondary meaning. He admits that he has commissioned no consumer survey, and the facts indicate that sales, promotion, and advertising of the Rice Video were extremely limited. Plaintiff can point to no widespread evidence of association of the “Mystery Magician” mark in the minds of the consuming public with the product of the Rice Video. Indeed, the only “evidence” of secondary meaning to which he can point is the alleged “celebrity” he allegedly achieved at the time his videotape was released, based on the “furor [it] created within the magic community.” Trademark/False Advertising Opposition at 4. The evidence to which Plaintiff points establishes no such thing; at best it may show that there was a brief period of news coverage of the Rice Video at its release. This does not establish that consumers would associate the “product” of a video about revealing magicians’ secrets with the “Mystery Magician” mark, even at the time the Rice Video was released in 1986, let alone eleven years later, in 1997. Plaintiff has made no showing of secondary meaning associated with his merely descriptive “Mystery Magician” mark, and therefore has failed to establish a valid trademark, and a right to protection. As a result, Plaintiff cannot state a Section 43(a) claim on this basis. The Court need not even engage in “likelihood of confusion” analysis, as Plaintiffs failure to establish a protectable mark would make this a mere ly superfluous exercise. See Comedy III, 200 F.3d at 595. Similarly defective is Plaintiffs claim to a protectable mark in the “character” of the Mystery" }, { "docid": "5507484", "title": "", "text": "Ctr., Inc. v. McKesson Corp., 806 F.Supp. 656, 661 (E.D.Mich.1992). With regard to the secondary meaning issue, the trial court below stated, A “mark’s strength” is gauged by its “distinctiveness and degree of recognition in the marketplace.” Homeowners Group, Inc. v. Home Mktg. Specialists, Inc., 931 F.2d 1100, 1107 (6th Cir.1991). Leelanau is a geographically descriptive mark which, without a showing of acquired secondary meaning, is inherently weak. (J.A. 29). The district court found that the mark lacked strength in large part due to its ruling that the record is “completely devoid of any consumer survey ... that consumers understand ‘Leelanau,’ when used in connection with wine, to refer to [Appellant].” (J.A. 31). During oral argument on appeal, Appellant asserted that the issues regarding the presumption of the mark’s secondary meaning and the likelihood of confusion established by Appellant were un-rebutted by Appellee. Appellee did not dispute this fact during oral argument. This assertion is confirmed within the district court’s August 13, 2002 order and in its February 14, 2003 order when it stated that in a prior ruling, it held: “[d]efendants failed to present any evidence to rebut the presumption of secondary meaning arising under § 1052(f) for purposes of showing that the registration was invalid.... [It also held] that application of the Sixth Circuit’s eight-factor test, based upon the evidence in the record, demonstrated a likelihood of confusion between the two marks” (J.A. 28). See J.A. 217. As previously stated, in order to demonstrate that a mark has a secondary meaning, a showing must be made that “the public identifies the trademark with a particular ‘source’ rather than the product.” Wynn Oil, 839 F.2d at 1190. In determining whether a particular mark has developed a secondary meaning, the court should consider, among other factors, survey evidence. Sprinklets, 806 F.Supp. at 661. Since the issue of “secondary meaning” was not originally in dispute and because the district court originally ruled that there was no genuine issue of material fact on the likelihood of confusion issue, Appellant argues it did not introduce consumer survey evidence because likelihood of confusion was" }, { "docid": "19767617", "title": "", "text": "Cir.1992); see PaperCutter, 900 F.2d at 563 (descriptive terms are those “conveying the characteristics of the goods, services or business, or indicating the purpose, function, size, quantity, capacity, or merits of a product, the effects of its use, or the class of intended purchasers.”) (internal quotation marks and citation omitted). “A term can be descriptive in two ways: ‘[i]t can literally describe the product, or it can describe the purpose or utility of the product.’ ” Centaur Commc’ns, Ltd. v. A/S/M Commc’ns, 830 F.2d 1217, 1220 (2d Cir.1987) (quoting 20th Century Wear, Inc. v. Sanmark-Stardust Inc., 747 F.2d 81, 87 (2d Cir.1984)); see PaperCutter, 900 F.2d at 563. Terms held to be descriptive include “Apple Rai sin Crisp” for breakfast cereal, see Gen. Mills, Inc. v. Kellogg Co., 824 F.2d 622, 625 (8th Cir.1987), “The Sports Authority” for a sporting goods store, see Sports Authority, Inc. v. Prime Hospitality Corp., 89 F.3d 955 (2d Cir.1996), “Snakelight” for a flashlight with a flexible neck, see Black & Decker, 944 F.Supp. at 225, and “Tasty” for salad dressing, see Henri’s Food Prods. Co. v. Tasty Snacks, Inc., 817 F.2d 1303, 1306 (7th Cir.1987); see also 2 McCarthy § 12:19. A descriptive term is eligible for trademark protection only if it acquires distinctiveness — also known as secondary meaning — such that the public has come to associate the mark primarily with its user. See PaperCutter, 900 F.2d at 562 (“[D]e-scriptive terms may, unlike generic terms, become entitled to protection if the ‘descriptive meaning’ of a word becomes sub ordinate and the term instead becomes primarily a symbol of identification, a process by which, put another way, the term acquires ‘secondary meaning.’ ”). In contrast, a suggestive mark is one that does not describe, but merely suggests, the features of a product, requiring the purchaser to use “imagination, thought and perception to reach a conclusion as to the nature of goods.” Time, Inc. v. Petersen Pub. Co. L.L.C., 178 F.3d 113, 118 (2d Cir.1999) (internal quotation marks and citation omitted). Examples of suggestive marks include “At A Glance” for calendars, see Cullman Ventures," }, { "docid": "3352905", "title": "", "text": "goods ... uses in commerce any word, term, name, symbol or device, or any combination thereof, or any false designation of origin ... or false or misleading representation of fact, which — (A) 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 ..or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods ... shall be liable in a civil action by any person who believes that he or she is likely to be damaged ...” 15 U.S.C. § 1125(a)(1)(A) and (B) (emphasis added). . Plaintiff claims there is no need for a commissioned survey in light of the fact that he has produced evidence of \"actual confusion’’ between his product and Defendants' (by a single distributor). Again, Plaintiff has substantially misunderstood the relevant doctrine. He cites to cases stating that proof of actual confusion is strong proof of a \"likelihood of confusion.” See, e.g., Trademark/False Advertising Opposition at 5 (citing, inter alia, Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1219 (9th Cir.1987)). However, this evidence of \"likelihood of confusion” only becomes relevant after a plaintiff has first satisfied the \"validity” prong of the trademark analysis. A mark must first be “inherently distinctive” or have acquired secondary meaning, and then the court examines the \"likelihood of confusion” as between the plaintiff’s valid mark and the defendant’s infringement. In other words, although actual confusion is strong evidence of there being a \"likelihood of confusion,” this evidence is irrelevant to the initial required showing of secondary meaning, which is often shown by use of commissioned consumer surveys, or extensive advertising. . \"A false endorsement claim based on the unauthorized use of a celebrity’s identity is a type of false association claim, for it alleges the misuse of a trademark, i.e., a symbol or device such as a visual likeness, vocal imitation, or other uniquely distinguishing characteristic ... likely to" }, { "docid": "9984778", "title": "", "text": "-thing. It is very similar to an adjective.” Nartron Corp. v. STMicroelectronics, Inc., 305 F.3d 397, 404 n. 7 (6th Cir.2002), cert. denied, 538 U.S. 907, 123 S.Ct. 1486, 155 L.Ed.2d 227 (2003). . \"To acquire a secondary meaning in the minds of the buying public, an article of merchandise when shown to a prospective cus- tainer must prompt the affirmation, 'That is the article I want because I know its source,' and not the negative inquiry as to ‘Who makes that article?' \" Esercizio v. Roberts, 944 F.2d 1235, 1239 (6th Cir.1991), cert. denied, 505 U.S. 1219, 112 S.Ct. 3028, 120 L.Ed.2d 899 (1992) (internal quotation marks omitted). When determining whether a particular mark or trade dress has acquired a secondary meaning, we apply a seven-factor test which considers: \"(a) direct consumer testimony; (b) consumer surveys; (c) exclusivity, length, and manner of use; (d) amount and manner of advertising; (e) amount of sales and number of customers; (f) established place in the market; and (g) proof of intentional copying.” Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 640 n. 14 (6th Cir.2002) (citations omitted). Merely descriptive marks that have been registered federally and that have become incontestable pursuant to 15 U.S.C. § 1065 are presumed to have acquired a secondary meaning. See Nartron, 305 F.3d at 404 n. 7. .\"A generic term is one that is commonly used as the name of a kind of goods. Unlike a trademark, which identifies the source of a product, a generic term merely identifies the genus of which a particular product is a species. If a mark's primary significance is to describe a type of product rather than the producer, it is generic and is not a valid trademark.” Nartron, 305 F.3d at 404 (internal quotation marks and citations omitted). . The district court’s oral ruling on the question of the TUMBLEBUS mark’s distinctiveness is admittedly a bit opaque; however, based on the district court's reference to actual use and its characterization of the mark as “unique,” we conclude that the district court classified TUMBLEBUS as a" }, { "docid": "14565906", "title": "", "text": "and recognition characterized as secondary meaning, and can show likelihood of confusion with a competitor. The district court found no secondary meaning, and consequently did not address the question of likelihood of confusion. Because the acquisition of secondary meaning is a question of fact, Norm Thompson Outfitters, Inc. v. General Motors Corp., 448 F.2d 1293, 1296 (9th Cir. 1971), the findings of the district court cannot be set aside unless clearly erroneous. The district court’s finding that American Scientific had not acquired a secondary meaning in its name is clearly erroneous. “Secondary meaning has been defined as association, nothing more”. Carter-Wallace, Inc. v. Procter & Gamble Co., 434 F.2d 794, 802 (9th Cir. 1970). In order to obtain protection for its trade name, plaintiff “must show that the primary significance of the term in the minds of the consuming public is not the product but the producer”. Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 118, 59 S.Ct. 109, 113, 83 L.Ed. 73 (1938). Although there are numerous cases determining secondary meaning, there is no consensus on its elements. In Carter-Wallace, the court asked simply if the mark denotes “a single thing coming from a sin gle source”, 434 F.2d at 802. Here, the district court looked to 1 McCarthy, Trademarks and Unfair Competition, §§ 15:10-15:21, and cited ten forms of evidence of secondary meaning. It said: Diverse types of evidence have been considered by courts in determining whether a mark has acquired a secondary meaning. The evidence may include customer surveys, customer testimony, the use of the mark in trade journals, the size of the company, number of sales, the amount, nature and geographical scope of advertising, the period of time during which the mark has been used, the number of customers, and actual confusion. (E.R. p. 90) Using the McCarthy criteria, the foundational facts in the district court’s opinion indicate that American Scientific’s name has acquired secondary meaning. The court found that American Scientific has used its name for over 13 years (now over 14 years); competes in a market that is specialized, limited and close-knit; advertises" }, { "docid": "18232853", "title": "", "text": "plaintiffs red knob mark creates a presumption that the mark is valid and that plaintiff has established secondary meaning. 15 U.S.C. §§ 1057(b) and 1115(a); Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 936 (7th Cir.1986) (registration of mark “entitles the plaintiff to a presumption that its registered trademark is not merely descriptive or generic, or, if merely descriptive, is accorded secondary meaning”). Defendant may overcome this presumption with evidence that the mark lacks secondary meaning, Packman v. Chicago Tribune Co., 267 F.3d 628, 639 (7th Cir.2001), or by showing that plaintiffs trade dress is functional. Eco Manufacturing LLC v. Honeywell International, Inc., 357 F.3d 649, 653 (7th Cir.2003). The Court of Appeals for the Seventh Circuit considers the following seven factors in determining whether a mark has acquired secondary meaning: (1) direct consumer testimony and consumer surveys; (2) exclusivity, length and manner of use; (3) amount and manner of advertising; (4) amount of sales and number of customers; (5) established place in the market; and (6) proof of intentional copying. Echo Travel, Inc. v. Travel Associates, Inc., 870 F.2d 1264, 1267 (7th Cir. 1989). The existence of secondary mean ing is a question of fact, Bishops Bay Founders Group, Inc. v. Bishops Bay Apartments, LLC, 301 F.Supp.2d 901, 909 (W.D.Wis.2003). a. Direct consumer testimony and consumer surveys In this case, the direct evidence of consumers associating red knobs with plaintiffs ranges and rangetops is minimal. Neither party has presented evidence of consumer surveys. Plaintiffs evidence establishes only that there are a few dealers and distributors who associate red knobs with Wolf and have interacted with customers who associate red knobs with Wolf. Defendant’s evidence establishes that there are a few distributors or dealers who do not associate red knobs with Wolf and do not recall a customer walking into their store to request “the range with red knobs” or recall customers associating red knobs with Wolf. This minimal evidence regarding consumer association of red knobs does not disturb the presumption in favor of the validity and secondary meaning of plaintiffs trade dress. b. Exclusivity, length and manner" }, { "docid": "15441106", "title": "", "text": "(15 U.S.C. § 1052(e)), if the applicant for registration can show that a “secondary meaning” has attached to the mark, so that the consuming public connects the mark with the producer rather than the product, the mark can be protected. Carter-Wallace, Inc. v. Procter & Gamble Company, 434 F.2d 794 (9 Cir. 1970). The district court found that even if the term “Surgicenter” were considered “descriptive” rather than “generic”, “it has not developed a secondary meaning in this area in which Medical operates”. The history and policy behind the doctrine of “secondary meaning” and relevant factors to be considered were well summarized in Union Carbide Corp. v. Ever-Ready, Inc., supra. In that case the court assumed the correctness of the finding of the district court that Carbide’s name “Everready” was descriptive, but held that Carbide had “clearly established the validity of its mark on the basis of secondary meaning”. Substantial direct consumer testimony and consumer surveys demonstrated that “an extremely significant portion of the population associates Carbide’s products with a single anonymous source”. 531 F.2d at 381. There was also substantial evidence of confusion on the part of the consuming public. Id. at 388. The district court properly recognized that one of the indicia of secondary mean ing is the likelihood of confusion among buyers, citing Norm Thompson Outfitters, Inc. v. General Motors Corp., 448 F.2d 1293 (9 Cir. 1971). As the district court noted, the parties agree that there has been no actual confusion. The court found that there was “no likelihood of confusion”, saying in part: The only contact Surgicenters has made with Portland is a letter of inquiry concerning the possibility of establishing a facility. This does not establish any likelihood of confusion. No consumer surveys or extensive advertising campaigns have been presented to prove that consumers connect out-patient surgical centers with Surgicenters’ sponsorship only. Indeed, as indicated in footnote 4, (see note 3, supra) the evidence is to the contrary. (e) Suggestive and Arbitrary and Fanciful Marks In pointing out the distinction between a “suggestive” term and a “descriptive” term, the court in Abercrombie & Fitch" } ]

[ { "docid": "12456389", "title": "", "text": "federal income tax liability for the years 1972-74 and thus did not make false statements in the W-4E forms. He contends that he was paid in Federal Reserve notes that were not lawful money and that he therefore had no income upon which he could be taxed. We have rejected this argument as frivolous. United States v. Gardiner, 531 F.2d 953 (9th Cir. 1976); United States v. Wangrud, 533 F.2d 495 (9th Cir. 1976). Kelley further contends that he had no tax liability for the year 1973 because of the failure of the IRS to conduct an administrative assessment of his tax after refusing to accept his incomplete return. See United States v. Radue, 486 F.2d 220, 222 (5th Cir. 1973), cert. denied, 416 U.S. 908, 94 S.Ct. 1615, 40 L.Ed.2d 113 (1974). The IRS is required to follow certain procedures in assessing the liability of a taxpayer before it can bring a civil suit to enforce a collection of the tax due. 26 U.S.C. §§ 6020(b), 6201 et seq.; 26 C.F.R. §§ 301.6020 — 1, 301.6201-1 et seq. (Supp. 1975). There is no requirement, however, that an administrative assessment record be filed before there can be a criminal prosecution for failing to report or pay income tax under 26 U.S.C. §§ 7201-07. Tax liability is imposed by statute independent of any administrative assessment. United States v. Radue, supra, 486 F.2d at 222; Funkhouser v. United States, 260 F.2d 86, 87 (4th Cir. 1958), cert. denied, 358 U.S. 940, 79 S.Ct. 346, 3 L.Ed.2d 348 (1959); 10 J. Mertens, Federal Income Taxation § 55A.05 (1970 rev. ed.); see United States v. Commerford, 64 F.2d 28, 30 (2d Cir.), cert. denied, 289 U.S. 759, 53 S.Ct. 792, 77 L.Ed. 1502 (1933). The testimony of an IRS agent that he computed Kelley’s income tax liability for 1973 to be $1,003.77 was sufficient evidence that Kelley’s statement of zero liability for 1973 was false. III. Instruction on Willfulness Kelley contends that the district court erred by refusing to instruct the jury that the government needed to prove Kelley acted willfully with a “bad" } ]

[ { "docid": "16680194", "title": "", "text": "concluded that “[wjhile a lawyer is admitted into a federal court by way of state court, he is not automatically sent out of the federal court by the same route.” Id. at 281, 77 S.Ct. at 1276. Subsequently, in In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, modified, 392 U.S. 919, 88 S.Ct. 2257, 20 L.Ed.2d 1380 (1968) (omitting taxation of costs), the Court reaffirmed its decision that a state disbarment is not conclusively binding on a federal court and that an attorney facing disbarment from a federal court is entitled to procedural due process. Therefore, we are confronted with the issue whether representation by an attorney suspended from his home state bar association during trial, but not suspended from practice before the federal district court until after trial, qualifies as representation by counsel within the sixth amendment. Before addressing that issue, however, we wish to make it clear that we in no way condone Vernell’s failure to inform the court of his Florida suspension. Any discipline for that act would occur in a separate proceeding. We are confronted here only with Hoffman’s sixth amendment claim and not consideration of the proper sanctions to be imposed on Vernell. We start from the premise that the sixth amendment guarantee of counsel means representation by an attorney admitted to practice law. Solina v. United States, 709 F.2d 160, 166-67 (2d Cir.1983); United States v. Wilhelm, 570 F.2d 461, 464-65 (3d Cir.1978); United States v. Irwin, 561 F.2d 198, 200 (10th Cir.1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 725, 54 L.Ed.2d 755 (1978); Achtien v. Dowd, 117 F.2d 989, 992 (7th Cir.1941); Turner v. American Bar Association, 407 F.Supp. 451 (W.D.Wis.1975), aff’d sub nom. Taylor v. Montgomery, 539 F.2d 715 (7th Cir.1976) (without opinion) & Pilla v. American Bar Association, 542 F.2d 56 (8th Cir.1976); see United States v. Wright, 568 F.2d 142, 142-43 (9th Cir.1978); United States v. Kelley, 539 F.2d 1199, 1203 (9th Cir.), cert. denied, 429 U.S. 963, 97 S.Ct. 393, 50 L.Ed.2d 332 (1976). But see United States v. Whitesel, 543 F.2d 1176 (6th" }, { "docid": "3368819", "title": "", "text": "system. Appellant’s fascination with the phrase “money of account” apparently derives from the fact that money of account is expressed in dollars, 31 U.S.C. § 371, and that dollars are in turn legally measurable in gold. Appellant’s thesis seems to be that the only “legal tender dollars” are those which contain a mixture of gold and silver and that only those dollars may be constitutionally taxed. This contention has been dismissed as frivolous by this circuit. United States v. Daly, 481 F.2d 28, 30 (8th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973). If, on the other hand, appellant intends to say that Federal Reserve notes are not taxable dollars and cannot be declared legal tender by Congress, this argument too has been rejected. 31 U.S.C. § 392; United States v. Rifen, 577 F.2d 1111 (8th Cir. 1978); United States v. Schmitz, 542 F.2d 782 (9th Cir. 1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1134, 51 L.Ed.2d 556 (1977); United States v. Whitesel, 543 F.2d 1176 (6th Cir. 1976), cert. denied, 431 U.S. 967, 97 S.Ct. 2924, 53 L.Ed.2d 1062 (1977). The only other question regarding “money of account” is whether the IRS’s alleged refusal to define the term is proof of the Service’s bad faith. Citing 26 C.F.R. §§ 601.701, 601.702, appellant claims he is entitled to a definition of this term upon the Service’s receipt of his proper request for a definition. Appellant has not alleged that a definition of “money” or “money of account” has been rendered by the IRS. If such a determination exists and if it exists in the form of a “ruling, determination letter or technical advice letter” within the meaning of 26 C.F.R. § 601.702(d)(11) (1978), appellant might be entitled to a copy of the determination under 26 U.S.C. § 6110. But even assuming the existence of such determination in a disclosable form, appellant’s remedy for non-disclosure of information is to file a petition in the United States Tax Court or a complaint in the United States District Court for the District of Columbia for an order" }, { "docid": "22952369", "title": "", "text": "self-incrimination, if validly exercised, is an absolute defense to a section 7203 prosecution for failure to file an income tax return. Garner v. United States, supra, 424 U.S. at 662-63, 96 S.Ct. at 1186-1187. The Court has also held, however, that the privilege does not justify an outright refusal to file any income tax return at all. United States v. Sullivan, 274 U.S. 259, 263, 47 S.Ct. 607, 71 L.Ed. 1037 (1927). Furthermore, an objection may properly be raised only in response to specific questions asked in the return. Id. See Garner v. United States, 501 F.2d 228, 239 n.18 (9th Cir. 1974) (en banc), aff'd Garner v. United States, supra, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370. We are here faced with a case in which the taxpayer did assert his privilege in response to specific questions in the tax return form, but did so on such a wholesale basis as to deny the IRS any useful financial or tax information. Other circuits, faced with similar wholesale assertions of the privilege against self-incrimination, have concluded that a tax return form which contains no information from which tax liability can be calculated does not constitute a tax return within the meaning of the IRS laws. Once these courts determine that the taxpayer has filed no return, simple application of the Sullivan precedent, which states that the Fifth Amendment will never justify a complete failure to file a return, invalidates the Fifth Amendment defense. E. g., United States v. Irwin, 561 F.2d 198, 201 (10th Cir. 1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 725, 54 L.Ed.2d 755 (1978); United States v. Silkman, 543 F.2d 1218, 1219-20 (8th Cir. 1976) (per curiam), cert. denied, 431 U.S. 919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977); United States v. Daly, 481 F.2d 28, 30 (8th Cir.) (per curiam), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973). Although we recognize the ease with which, the logic used in these cases would resolve the issue before us, we conclude that such reliance upon the definition of a tax return" }, { "docid": "6686948", "title": "", "text": "of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent the exercise of his constitutional rights. United States v. Berrios, 501 F.2d 1207, 1211 (2nd Cir.1974) (emphasis added). This test has been recognized in a majority of circuits. See, e.g., United States v. Murdock, 548 F.2d 599 (5th Cir.1977); United States v. Ojala, 544 F.2d 940 (8th Cir.1976); United States v. Bourque, 541 F.2d 290 (1st Cir.1976); United States v. Peskin, 527 F.2d 71 (7th Cir.1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976); United States v. Scott, 521 F.2d 1188 (9th Cir.1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976). See also United States v. Cooper, 577 F.2d 1079, 1086 (6th Cir.), cert. denied, 439 U.S. 868, 99 S.Ct. 196, 58 L.Ed.2d 179 (1978); United States v. Leg-get & Platt, Inc., 542 F.2d 655, 658 (6th Cir.1976), cert. denied, 430 U.S. 945, 97 S.Ct. 1579, 51 L.Ed.2d 792 (1977). Therefore, it is only when this prima facie showing has been made and the defendant has proven a “colorable entitlement” to a dismissal for selective prosecution, that an evidentiary hearing should be held. United States v. Brown, 591 F.2d 307, 310-11 (5th Cir.1979). A mere allegation that the exercise of First Amendment rights led to the prosecution does not mandate a full evidentiary hearing. Rather, “[a] hearing is necessary only when the motion alleges sufficient facts to take the question past the frivolous state and raises a reasonable doubt as to the prosecutor’s purpose.” United States v. Larson, 612 F.2d 1301, 1304-05 (8th Cir.1980) (emphasis added). In the present case, the appellants alleged the following facts before the district court in support of their motion for dismissal for selective prosecution: (1) 34 other members of the Michigan tax revolt group committed tax violations but were not facing prosecution; and (2) the defendants" }, { "docid": "23459709", "title": "", "text": "Schmitz, 542 F.2d 782 (9th Cir. 1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1134, 51 L.Ed.2d 556 (1977); United States v. Wangrud, 533 F.2d 495 (9th Cir.), cert. denied, 429 U.S. 818, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976). The specific answer to Rifen’s argument is that article I, section 10 of the United States Constitution prohibits the states from declaring legal tender anything other than gold or silver, but does not limit Congress’ power to declare what shall be legal tender for all debts. The Legal Tender Case, 110 U.S. 421, 446, 4 S.Ct. 122, 28 L.Ed. 204 (1884); Chermack v. Bjornson, 302 Minn. 213, 223 N.W.2d 659 (1974), cert. denied, 421 U.S. 915, 95 S.Ct. 1573, 43 L.Ed.2d 780 (1975). We must also reject Rifen’s attorney’s contention that evidence of willfulness was insufficient for conviction under 26 U.S.C. §§ 7203, 7205. The element of willfulness in offenses under the tax code does not require proof of any motive other than an intentional violation of a known legal duty. United States v. Pomponio, 429 U.S. 10, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976); United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973); United States v. Olson, 576 F.2d 1267, at 1272 (8th Cir. 1978); United States v. Ojala, 544 F.2d 940 (8th Cir. 1976). The evidence of Rifen’s prior tax paying history and of attempts by Rifen’s employer and the Internal Revenue Service to explain legal requirements to Rifen is sufficient to sustain the jury’s finding that Rifen was aware of his legal obligations under the tax laws and intentionally chose not to comply. When viewed in the light most favorable to the government, the evidence is also sufficient to sustain the jury’s verdict on the three counts of making a fraudulent claim against an agency of the United States. 18 U.S.C. § 287. The jury heard Rifen’s testimony and was in position to assess his credibility. They apparently did not believe that he acted out of a genuine misconception of the law, or found his belief in the legality of his conduct" }, { "docid": "5274580", "title": "", "text": "v. Wright, No. 77-1021 (10th Cir. Feb. 13, 1978); United States v. Rifen, 577 F.2d 1111 (8th Cir. 1978); United States v. Daly, 481 F.2d 28 (8th Cir.), cert. denied, 414 U.S. 1063, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973); United States v. Schmitz, 542 F.2d 782 (9th Cir. 1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1134, 51 L.Ed.2d 556 (1977); United States v. Gardiner, 531 F.2d 953 (9th Cir.), cert. denied, 429 U.S. 853, 97 S.Ct. 145, 50 L.Ed.2d 128 (1976); United States v. Whitesel, 543 F.2d 1176 (6th Cir. 1976), cert. denied, 431 U.S. 967, 97 S.Ct. 2924, 53 L.Ed.2d 1062 (1977). The above decisions have summarily rejected arguments such as are raised here, the essence of which is that whenever economic conditions are inflationary, adjustments must be made in the values to be attributed to income and that this affects the filing requirements of Internal Revenue Code § 6012. One of the arguments made is that a certain statute was not mentioned in the brief or in oral argument, 31 U.S.C. § 463, and that we are precluded from considering it. This is specious on its face. No more needs to be said. Counsel complains that § 463 is not applicable to federal reserve notes. This court did not make any such suggestion in its opinion that it had direct affect on such notes. This fact does not change the basic thrust of the court’s opinion, which is that Congress is exclusive authority in this field. It is said that § 463 was repealed in October 1977. It was, however, in force in 1973, 1974 and 1975, the years involved in this case. The fact that Congress took this action does not affect the issue whether Congress had the power to regulate the currency. This section was cited in the opinion in relation to a discussion of Norman v. Baltimore & Ohio Railroad Co., 294 U.S. 240, 55 S.Ct. 407, 79 L.Ed. 885 (1935), which upheld the statute as a valid exercise of the power of the Congress over the monetary system of the United States." }, { "docid": "5274579", "title": "", "text": "for rehearing raises a number of points, none of which have merit, but since the motion contains irresponsible statements and charges, we choose to comment on it. The fundamental basis for the opinion is that Congress rather than the court has the power to regulate the value of money. This is a power guaranteed by the Constitution, and the conclusion that the courts do not have a role in this area cannot be questioned. The motion fails to ever come to grips with this basic issue. It is to be noted at the outset that this court as well as the Sixth, Eighth and Ninth Circuits have had occasion to review tax evasion cases in which the contention has been advanced that salaries paid in federal reserve notes were not taxable under the Internal Revenue Code. This apparently is based on a belief that inflation has affected the value of these notes. The following are the cases that have dealt with this: United States v. Johnson, No. 77-1366 (10th Cir. Mar. 22, 1978); United States v. Wright, No. 77-1021 (10th Cir. Feb. 13, 1978); United States v. Rifen, 577 F.2d 1111 (8th Cir. 1978); United States v. Daly, 481 F.2d 28 (8th Cir.), cert. denied, 414 U.S. 1063, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973); United States v. Schmitz, 542 F.2d 782 (9th Cir. 1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1134, 51 L.Ed.2d 556 (1977); United States v. Gardiner, 531 F.2d 953 (9th Cir.), cert. denied, 429 U.S. 853, 97 S.Ct. 145, 50 L.Ed.2d 128 (1976); United States v. Whitesel, 543 F.2d 1176 (6th Cir. 1976), cert. denied, 431 U.S. 967, 97 S.Ct. 2924, 53 L.Ed.2d 1062 (1977). The above decisions have summarily rejected arguments such as are raised here, the essence of which is that whenever economic conditions are inflationary, adjustments must be made in the values to be attributed to income and that this affects the filing requirements of Internal Revenue Code § 6012. One of the arguments made is that a certain statute was not mentioned in the brief or in oral argument, 31 U.S.C." }, { "docid": "16680195", "title": "", "text": "occur in a separate proceeding. We are confronted here only with Hoffman’s sixth amendment claim and not consideration of the proper sanctions to be imposed on Vernell. We start from the premise that the sixth amendment guarantee of counsel means representation by an attorney admitted to practice law. Solina v. United States, 709 F.2d 160, 166-67 (2d Cir.1983); United States v. Wilhelm, 570 F.2d 461, 464-65 (3d Cir.1978); United States v. Irwin, 561 F.2d 198, 200 (10th Cir.1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 725, 54 L.Ed.2d 755 (1978); Achtien v. Dowd, 117 F.2d 989, 992 (7th Cir.1941); Turner v. American Bar Association, 407 F.Supp. 451 (W.D.Wis.1975), aff’d sub nom. Taylor v. Montgomery, 539 F.2d 715 (7th Cir.1976) (without opinion) & Pilla v. American Bar Association, 542 F.2d 56 (8th Cir.1976); see United States v. Wright, 568 F.2d 142, 142-43 (9th Cir.1978); United States v. Kelley, 539 F.2d 1199, 1203 (9th Cir.), cert. denied, 429 U.S. 963, 97 S.Ct. 393, 50 L.Ed.2d 332 (1976). But see United States v. Whitesel, 543 F.2d 1176 (6th Cir.1976), cert. denied, 431 U.S. 967, 97 S.Ct. 2924, 53 L.Ed.2d 1062 (1977). The question before us is whether suspension from practice before the predicate state bar automatically results in a lack of representation by counsel as guaranteed by the sixth amendment. Hoffman cites no precedent that convinces us that a per se rule is warranted and we refuse to establish one on the facts of this case. In the related situation where a defendant was unknowingly represented by a person posing as a lawyer, but who had never been admitted to membership in any bar, several courts have applied a per se rule and found that the right to counsel was violated. E.g., Solina v. United States, 709 F.2d at 168 (graduate of accredited law school who had failed New York bar examination twice and had not been admitted to any other bar); Harrison v. United States, 387 F.2d 203, 212-14 (D.C. Cir.1967) (reversing one defendant’s conviction because the government used the defendant’s statements elicited during earlier trial when the defendant was represented by" }, { "docid": "3368818", "title": "", "text": "United States v. Salter, 432 F.2d 697, 700 (1st Cir. 1970). Appellant’s most persistent argument in these proceedings is that the IRS has refused his many requests for a definition of the “money of account” of the United States. He urges that two results, follow from the Service’s failure to define this phrase. First, since “money of account” is expressed in dollars, appellant claims he cannot know what constitutes a dollar and cannot determine whether he has such gross income (as stated in dollars) as would require the filing of a tax return under 26 U.S.C. § 6012. Second, Hein argues that the Service’s refusal to define “money of account” evidences a “pattern of deceit and harassment” and bad faith. Appellant adopts the posture of one who would willingly comply with federal tax requirements if only the IRS provided him with the requested definition instead of pursuing its summonses in bad faith. There is no merit in any of these arguments insofar as they represent an attack on the United States’ monetary and federal reserve system. Appellant’s fascination with the phrase “money of account” apparently derives from the fact that money of account is expressed in dollars, 31 U.S.C. § 371, and that dollars are in turn legally measurable in gold. Appellant’s thesis seems to be that the only “legal tender dollars” are those which contain a mixture of gold and silver and that only those dollars may be constitutionally taxed. This contention has been dismissed as frivolous by this circuit. United States v. Daly, 481 F.2d 28, 30 (8th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973). If, on the other hand, appellant intends to say that Federal Reserve notes are not taxable dollars and cannot be declared legal tender by Congress, this argument too has been rejected. 31 U.S.C. § 392; United States v. Rifen, 577 F.2d 1111 (8th Cir. 1978); United States v. Schmitz, 542 F.2d 782 (9th Cir. 1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1134, 51 L.Ed.2d 556 (1977); United States v. Whitesel, 543 F.2d 1176 (6th Cir. 1976)," }, { "docid": "2603012", "title": "", "text": "on the briefs and record. 3 $159.45 is the alleged average price of 1 ounce of gold in the Daily (London) Gold Price Final Fixing 1974 for the 52 petitioners’ weekly paydays during the year 1974, per attachment to return. 4 $35,184.82 (taxable income) x $42.22/1 ounce of gold x 1 ounce of gold/$159.45 = taxable income in its alleged gold value. 5 $35,184.82 x $42.22/$159.45 = $9,316.42 taxable income converted into its alleged gold value or, in petitioners’ nomenclature, “(S$)9,316.42 statutory dollars.” Taxpayers then computed their income tax liability upon the $9,316.42 figure. The Commissioner determined that the correct figure to be reported as taxpayers’ taxable income was $35,184.82 (rounded to $35,185.00) and computed their tax on this amount to be $8,220.60. Taxpayers thereafter petitioned the Tax Court to redetermine the deficiency asserted by the Commissioner. On motion for summary judgment, the Tax Court concluded that the Commissioner’s computation was correct and entered its decision accordingly. II Our research confirms the Commissioner’s contention that this case is but one “in a seemingly endless series of tax cases challenging the federal monetary system.” (Brief for Appellee, p. 3.) See, e. g., Mathes v. Commissioner, 576 F.2d 70 (5th Cir. 1978), cert. denied, 440 U.S. 911, 99 S.Ct. 1223, 59 L.Ed.2d 459 (1979); United States v. Schmitz, 542 F.2d 782 (9th Cir. 1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1134, 51 L.Ed.2d 556 (1977); United States v. Wangrud, 533 F.2d 495 (9th Cir. 1976), cert. denied, 429 U.S. 818, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976); United States v. Gardiner, 531 F.2d 953 (9th Cir. 1976), cert. denied, 429 U.S. 853, 97 S.Ct. 145, 50 L.Ed.2d 128 (1976); United States v. Hurd, 549 F.2d 118 (9th Cir. 1977); United States v. Rifen, 577 F.2d 1111 (8th Cir. 1978); Nyhus v. Commissioner, 594 F.2d 1213 (8th Cir. 1979); and United States v. Daly, 481 F.2d 28 (8th Cir. 1973), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973). Like other courts that have confronted such challenges, we find the taxpayers’ claim wholly lacking in merit. Taxpayers base their" }, { "docid": "15615645", "title": "", "text": "and embraces all conceivable powers of taxation including the power to lay and collect income taxes. Brushaber v. Union Pac. R. R., 240 U.S. 1, 12-13, 36 S.Ct. 236, 239-240, 60 L.Ed. 493 (1916). The Sixteenth Amendment removed any need to apportion income taxes among the states that otherwise would have been required by Article 1, Section 9, clause 4. Consistent with these provisions, Congress has taxed compensation for services, without any regard for whether that compensation is derived from government-licensed or specially protected activities, I.R.C. § 61, and this has been construed to cover earnings from labor. E.g., United States v. Russell, 585 F.2d 368, 370 (8th Cir. 1978). Lawson filed facsimiles of 1978 and 1979 form 1040 tax returns that were blank except for his signature, printed asterisks, and materials claiming a Fifth Amendment privilege against disclosure. He thereby provided no information from which the IRS could assess his tax liability. These protest 1040 forms are not returns within the meaning of the Internal Revenue Code or the tax regulations. United States v. Forth, 426 F.2d 519, 523 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970). There is no blanket Fifth Amendment protection for a taxpayer filing a protest form. E.g., United States v. Brown, 600 F.2d 248, 251-52 (10th Cir.), cert. denied, 444 U.S. 917, 100 S.Ct. 233, 62 L.Ed.2d 172 (1979); United States v. Johnson, 577 F.2d 1304, 1310-11 (5th Cir. 1978); United States v. Irwin, 561 F.2d 198, 201 (10th Cir. 1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 725, 54 L.Ed.2d 755 (1978). On appeal, Lawson asserts that the Fifth Amendment protects him from completing a 1040 form because any information supplied could have been used to incriminate him under I.R.C. § 7205 for filing a false withholding certificate with his employer. This contention has also been rejected in similar tax protestor cases. E.g, United States v. Carlson, 617 F.2d 518, 520-23 (9th Cir.), cert. denied, 449 U.S. 1010, 101 S.Ct. 564, 66 L.Ed.2d 468 (1980). Lawson asserts that the government failed to prove willfulness in not filing" }, { "docid": "19018966", "title": "", "text": "held reversible error, citing Harp). . Accord, United States v. Sklaroff, 552 F.2d 1156, 1161-1162 (5th Cir. 1977) (following Chapman), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978). See also United States v. Davis, 546 F.2d 583, 594-595 (5th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977); United States v. Wyckoff, 545 F.2d 679 (9th Cir. 1976) (strongly criticizing Government for commenting on defendant’s silence), cert. denied, 429 U.S. 1105, 97 S.Ct. 1135, 51 L.Ed.2d 556 (1977). . See, e. g., Hayton v. Egeler, 555 F.2d 599 (6th Cir. 1977), cert. denied, 434 U.S. 973, 98 S.Ct. 527, 54 L.Ed.2d 463 (1978); Meeks v. Havener, 545 F.2d 9 (6th Cir. 1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977); Jones v. Wyrick, 542 F.2d 1013 (8th Cir. 1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1603, 51 L.Ed.2d 807 (1977). . Compare Hayton v. Egeler, 555 F.2d 599, 603-604 (6th Cir. 1977) (single isolated question and answer during the course of a long, 10-day trial, held harmless), cert. denied, 434 U.S. 973, 98 S.Ct. 527, 54 L.Ed.2d 463 (1978). . See United States v. Doran, 564 F.2d 1176, 1177 (5th Cir. 1977); United States v. Lewis, 524 F.2d 991, 992 (5th Cir. 1975), cert. denied, 425 U.S. 938, 96 S.Ct. 1673, 48 L.Ed.2d 180 (1976); United States v. Taylor, 508 F.2d 761, 763-764 (5th Cir. 1975). See generally 5 Am. Jur.2d Appeal & Error §§ 713, 717 (1962). . See Doyle v. Ohio, 426 U.S. 610, 619-620 n. 11, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (post-arrest silence can be used to contradict a defendant who claims he told the police his exculpatory story when arrested); United States v. Blalock, 564 F.2d 1180 (5th Cir. 1977); United States v. Helina, 549 F.2d 713, 719 (9th Cir. 1977) (defense contention that Government had failed to fully document its case and that defendant had fully cooperated with the Government opened the door for the prosecutor’s question to defendant asking why defendant had not given certain records to the Government);" }, { "docid": "15615646", "title": "", "text": "Forth, 426 F.2d 519, 523 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970). There is no blanket Fifth Amendment protection for a taxpayer filing a protest form. E.g., United States v. Brown, 600 F.2d 248, 251-52 (10th Cir.), cert. denied, 444 U.S. 917, 100 S.Ct. 233, 62 L.Ed.2d 172 (1979); United States v. Johnson, 577 F.2d 1304, 1310-11 (5th Cir. 1978); United States v. Irwin, 561 F.2d 198, 201 (10th Cir. 1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 725, 54 L.Ed.2d 755 (1978). On appeal, Lawson asserts that the Fifth Amendment protects him from completing a 1040 form because any information supplied could have been used to incriminate him under I.R.C. § 7205 for filing a false withholding certificate with his employer. This contention has also been rejected in similar tax protestor cases. E.g, United States v. Carlson, 617 F.2d 518, 520-23 (9th Cir.), cert. denied, 449 U.S. 1010, 101 S.Ct. 564, 66 L.Ed.2d 468 (1980). Lawson asserts that the government failed to prove willfulness in not filing returns and in claiming ninety-nine exemptions on the withholding certificate he gave his employer in January 1979. In the context of the tax statutes, willfulness means a voluntary, intentional violation of a known legal duty. United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976). The government need not establish that the defendant acted with an evil motive or in bad faith. United States v. Hinderman, 625 F.2d 994, 995 (10th Cir. 1980); United States v. Dillon, 566 F.2d 702 (10th Cir. 1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1613, 56 L.Ed.2d 63 (1978). While the evidence indicates that Lawson may have acted with a personal belief that the tax laws are unconstitutional, it well supports that Lawson voluntarily and intentionally violated known legal duties. The trial judge properly denied the motions for acquittal on this ground. As to the charge of filing a false withholding certificate, Lawson contends the government failed to establish that Lawson had incurred any tax liability for the year in question and thus" }, { "docid": "2603013", "title": "", "text": "of tax cases challenging the federal monetary system.” (Brief for Appellee, p. 3.) See, e. g., Mathes v. Commissioner, 576 F.2d 70 (5th Cir. 1978), cert. denied, 440 U.S. 911, 99 S.Ct. 1223, 59 L.Ed.2d 459 (1979); United States v. Schmitz, 542 F.2d 782 (9th Cir. 1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1134, 51 L.Ed.2d 556 (1977); United States v. Wangrud, 533 F.2d 495 (9th Cir. 1976), cert. denied, 429 U.S. 818, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976); United States v. Gardiner, 531 F.2d 953 (9th Cir. 1976), cert. denied, 429 U.S. 853, 97 S.Ct. 145, 50 L.Ed.2d 128 (1976); United States v. Hurd, 549 F.2d 118 (9th Cir. 1977); United States v. Rifen, 577 F.2d 1111 (8th Cir. 1978); Nyhus v. Commissioner, 594 F.2d 1213 (8th Cir. 1979); and United States v. Daly, 481 F.2d 28 (8th Cir. 1973), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973). Like other courts that have confronted such challenges, we find the taxpayers’ claim wholly lacking in merit. Taxpayers base their claim on the Par Value Modification Act, P.L. 92-268, 86 Stat. 116 (31 U.S.C. § 449), which established a new par value of the dollar in terms of gold such that forty-two and two-ninths dollars would equal one fine troy ounce of gold. Applying this standard to their 1974 taxable income in paper dollars and comparing it to the average market price of gold for the year 1974, they conclude that their real income was only $9,316.42. Taxpayers are clearly mistaken in their understanding of the Par Value Modification Act. By its express terms, the standard established by that Act is to be used “for the purpose of issuing gold certificates pursuant to section 405b of [Title 31].” There is no indication that it is further intended as a measure of the “actual value” of the dollar in this country. Here, Federal Reserve notes, not gold, have been declared “legal tender for all debts, public and private, public charges, taxes, duties, and dues.” 31 U.S.C. § 392. The market price of gold in terms of" }, { "docid": "22477101", "title": "", "text": "49 (10th Cir.), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976). Here, the trial judge did not abuse his discretion in refusing Halbert’s motion for self-representation. VIII. Halbert contends that it was error of constitutional dimension for his attorney also to represent his co-defendant Culbertson at the arraignment. Our court has, however, repeatedly rejected a per se rule requiring reversal of a criminal conviction because of potential conflict of interest deriving from multiple representation of codefendants in criminal trials. Willis v. United States, 614 F.2d 1200, 1202 (9th Cir. 1979); United States v. Eaglin, 571 F.2d 1069, 1086 (9th Cir. 1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1453, 55 L.Ed.2d 497 (1978); Glavin v. United States, 396 F.2d 725, 727 (9th Cir.), cert. denied, 393 U.S. 926, 89 S.Ct. 258, 21 L.Ed.2d 262 (1968); Watkins v. Wilson, 408 F.2d 351, 352 (9th Cir. 1969). Reversal is required only when the defendant meets the burden of showing specific prejudice to his rights by the multiple representation. Willis v. United States, 614 F.2d at 1202-04; United States v. Katas, 542 F.2d 527, 529 (9th Cir. 1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 790 (1977); United States v. Nystrom, 447 F.2d 1350, 1351 (9th Cir.), cert. denied, 404 F.2d 993, 92 S.Ct. 542, 30 L.Ed.2d 545 (1971); Davidson v. Cupp, 446 F.2d 642, 643 (9th Cir. 1971). Halbert argues, however, that this rule has been modified by the Supreme Court decision in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), which he contends established a per se rule requiring reversal if a potential conflict is implicated. Holloway is distinguishable, however, because there the multiple representation was forced on the defendants over the repeated and vigorous protests of counsel who argued that prejudicial conflict of interest was inescapable. Halbert’s attorney, in contrast, specifically agreed to represent Culbertson at the arraignment, and codefendant Culbertson added his approval in a direct colloquy with the trial judge. This is not a situation wherein the trial judge “improperly requires joint representation,” as contemplated by" }, { "docid": "23459708", "title": "", "text": "amount withheld from his wages for federal taxes during each year in question. Written explanations, including legal arguments and indications of protest, were attached to the documents underlying the charges. The defense was that Rifen acted out of a good faith misinterpretation of the law and therefore lacked the requisite intent to commit any of the criminal offenses charged. Rifen testified as to his belief that federal reserve notes are not authorized by the United States Constitution because they are not redeemable in specie, and are therefore not subject to taxation. Proceeding pro se on appeal, Rifen argues that the evidence was insufficient to support conviction on any of the counts, because no evidence was presented on the definition of the symbol for the dollar ($). No such evidence was necessary. Congress has declared federal reserve notes legal tender, 31 U.S.C. § 392, and federal reserve notes are taxable dollars. See United States v. Daly, 481 F.2d 28 (8th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973); United States v. Schmitz, 542 F.2d 782 (9th Cir. 1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1134, 51 L.Ed.2d 556 (1977); United States v. Wangrud, 533 F.2d 495 (9th Cir.), cert. denied, 429 U.S. 818, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976). The specific answer to Rifen’s argument is that article I, section 10 of the United States Constitution prohibits the states from declaring legal tender anything other than gold or silver, but does not limit Congress’ power to declare what shall be legal tender for all debts. The Legal Tender Case, 110 U.S. 421, 446, 4 S.Ct. 122, 28 L.Ed. 204 (1884); Chermack v. Bjornson, 302 Minn. 213, 223 N.W.2d 659 (1974), cert. denied, 421 U.S. 915, 95 S.Ct. 1573, 43 L.Ed.2d 780 (1975). We must also reject Rifen’s attorney’s contention that evidence of willfulness was insufficient for conviction under 26 U.S.C. §§ 7203, 7205. The element of willfulness in offenses under the tax code does not require proof of any motive other than an intentional violation of a known legal duty. United States v. Pomponio," }, { "docid": "22477100", "title": "", "text": "does not have an absolute right to both self-representation and the assistance of counsel. United States v. Klee, 494 F.2d 394, 396-97 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974); Duke v. United States, 255 F.2d 721, 725-26 (9th Cir.), cert. denied, 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365 (1958); United States v. Daniels, 572 F.2d 535, 540 (5th Cir. 1978); United States v. Sacco, 571 F.2d 791, 793 (4th Cir.), cert. denied, 435 U.S. 999, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Cyphers, 556 F.2d 630, 634 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977). Whether to allow hybrid representation remains within the sound discretion of the trial judge. United States v. Daniels, 572 F.2d at 540; United States v. Wilson, 556 F.2d 1177, 1178 (4th Cir.), cert. denied, 434 U.S. 986, 98 S.Ct. 614, 54 L.Ed.2d 481 (1977); United States v. Pinkey, 548 F.2d 305, 310 (10th Cir. 1977); United States v. Bennett, 539 F.2d 45, 49 (10th Cir.), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976). Here, the trial judge did not abuse his discretion in refusing Halbert’s motion for self-representation. VIII. Halbert contends that it was error of constitutional dimension for his attorney also to represent his co-defendant Culbertson at the arraignment. Our court has, however, repeatedly rejected a per se rule requiring reversal of a criminal conviction because of potential conflict of interest deriving from multiple representation of codefendants in criminal trials. Willis v. United States, 614 F.2d 1200, 1202 (9th Cir. 1979); United States v. Eaglin, 571 F.2d 1069, 1086 (9th Cir. 1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1453, 55 L.Ed.2d 497 (1978); Glavin v. United States, 396 F.2d 725, 727 (9th Cir.), cert. denied, 393 U.S. 926, 89 S.Ct. 258, 21 L.Ed.2d 262 (1968); Watkins v. Wilson, 408 F.2d 351, 352 (9th Cir. 1969). Reversal is required only when the defendant meets the burden of showing specific prejudice to his rights by the multiple representation. Willis v. United States, 614" }, { "docid": "6284839", "title": "", "text": "560 (1974). . The appellant presented no testimony by anyone in his defense. The defense relied entirely on the claim that the appellant’s actions had not been willful. . See, e. g., United States v. Grismore, 564 F.2d 929, 932 (10th Cir. 1977), cert. denied, 435 U.S. 954, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978); United States v. Goeltz, 513 F.2d 193, 197 (10th Cir.), cert. denied, 423 U.S. 830, 96 S.Ct. 51, 46 L.Ed.2d 48 (1975); United States v. Merrick, 464 F.2d 1087, 1090-91 (10th Cir.), cert. denied, 409 U.S. 1023, 93 S.Ct. 462, 34 L.Ed.2d 314 (1972). . United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978); Donaldson v. United States, 400 U.S. 517, 521, 533, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971); United States v. Bray, 546 F.2d 851, 854 (10th Cir. 1976). . United States v. Miller, 425 U.S. 435, 440, 442—43, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); Fisher v. United States, 425 U.S. 391, 401 n.7, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); California Bankers Ass’n v. Shultz, 416 U.S. 21, 53, 94 S.Ct. 34, 38 L.Ed.2d 48 (1974) (dictum); Donaldson v. United States, 400 U.S. 517, 522, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). . United States v. Irwin, 561 F.2d 198, 200 (10th Cir. 1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 725, 54 L.Ed.2d 755 (1978); United States v. Smith, Nos. 77-1864 and 77-1865 at 8 (10th Cir. May 12, 1977); United States v. Grismore, 546 F.2d 844, 847 (10th Cir. 1976), cert. denied, 435 U.S. 954, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978); United States v. Kelley, 539 F.2d 1199, 1202 (9th Cir.), cert. denied, 429 U.S. 963, 97 S.Ct. 393, 50 L.Ed.2d 332 (1976). . United States v. Irwin, supra at 200. . United States v. Smith, Nos. 77-1864 and 77-1865 at 8 (10th Cir. May 12, 1977); Grismore, supra at 847. . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). . United States v. Larsen, 525 F.2d 444, 449 (10th Cir. 1975), cert. denied, 423 U.S." }, { "docid": "2723384", "title": "", "text": "committed under § 7205 because they were merely following the W-4 form’s instructions in swearing that they had incurred no tax liability in 1977 and anticipated none in 1978. The argument is disingenuous and untenable. Defendants clearly were aware of their duty to file returns and knew that their income would be such as to subject them to tax liability in 1978. That they anticipated again filing a “Fifth Amendment return,” leaving the amount of their tax liability uncertain until after I.R.S. action, cannot be equated with a good faith belief that there would be no tax liability. Third, the defendants assert a Fifth Amendment privilege to file returns as they did. This argument has also been rejected repeatedly by this court. The Fifth Amendment does not serve as a defense for failing to make any tax return, and a return containing no information but a general objection based on the Fifth Amendment does not constitute a return as required by the Code. United States v. Moore, 692 F.2d 95, 97 (10th Cir.1979); United States v. Lawson, 670 F.2d 923, 927 (10th Cir.1982); United States v. Brown, 600 F.2d 248, 251-52 (10th Cir.), cert. denied, 444 U.S. 917, 100 S.Ct. 233, 62 L.Ed.2d 172 (1979). Such a general objection under the Fifth Amendment as defendants asserted on their returns is not a valid claim of the constitutional privilege which must be made as to specific items of information. Moore, 692 F.2d at 97; United States v. Irwin, 561 F.2d 198, 201 (10th Cir.1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 725, 54 L.Ed.2d 755 (1978). These cases all follow the principles laid down by the Supreme Court in Garner v. United States, 424 U.S. 648, 650, 96 S.Ct. 1178, 1180, 47 L.Ed.2d 370 (1976), and United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927). Finally we consider the argument, made at some length in the pro se brief and repeated at oral argument, that the income tax statutes cannot be construed to apply to defendants because Congress intended the Sixteenth Amendment to authorize taxation of" }, { "docid": "23453195", "title": "", "text": "950, 100 S.Ct. 422, 62 L.Ed.2d 320 (1980); United States v. Bridwell, 583 F.2d 1135, 1138-39 (10th Cir. 1978); United States v. Johnson, 558 F.2d 1225, 1230 (5th Cir. 1977); United States v. Williams, 556 F.2d 65, 67 (D.C. Cir. 1977), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1070 (1977); United States v. Skiaroff, 552 F.2d 1156, 1162 (5th Cir. 1977), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978); United States v. Wycoff, 545 F.2d 679, 682 (9th Cir. 1977), cert. denied, 429 U.S. 1105, 97 S.Ct. 1135, 51 L.Ed.2d 556 (1977); Jones v. Wyrick, 542 F.2d 1013, 1015 (8th Cir. 1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1603, 51 L.Ed.2d 807 (1977); Booton v. Hanauer, 541 F.2d 296, 299 (1st Cir. 1976). Some courts have expressed doubt about the efficacy of curative instructions. “In no case has a prompt and forceful instruction alone been held sufficient to vitiate the use of post-arrest silence.” Morgan v. Hall, 569 F.2d 1161, 1167-68 (1st Cir. 1978), cert. denied, 437 U.S. 910, 98 S.Ct. 3103, 57 L.Ed.2d 1142 (1978). See also United States v. Prescott, 581 F.2d 1343, 1352 (9th Cir. 1978). . The postarrest silence of Williams (1) was used by the prosecution to impeach his alibi, (2) was an issue introduced and pursued by the prosecution, (3) was brought out in a case where the other evidence of guilt was not overwhelming, (4) was a matter repeatedly referred to by the prosecution, and (5) was a matter as to which the trial judge gave no curative instructions. All the indicators, therefore, point to a “harmful” rather than a “harmless” classification for the error. . United States v. Edwards, 576 F.2d 1152, 1155 (5th Cir. 1978) (“We must therefore reverse. In so doing we note that the comment upon silence of the accused is a crooked knife and one likely to turn in the prosecutor’s hand. The circumstances under which it will not occasion a reversal are few and discrete. We suggest that it be abandoned as a prosecutorial technique.”) See United States v." } ]

[ { "docid": "3054977", "title": "", "text": "requires a three-step analysis. First, the court must determine whether the plaintiffs speech was constitutionally protected. If so, then the plaintiff must prove that the defendant’s actions were motivated by the plaintiffs constitutionally protected speech. Finally, if the plaintiff can demonstrate that his constitutionally protected speech was a substantial or motivating factor in the defendant’s actions, the defendant is given the opportunity to demonstrate that it would have taken the same action in the absence of the plaintiffs exercise of his rights under the First Amendment. See Belk v. Town of Minocqua, 858 F.2d 1258, 1262 & n. 6 (7th Cir.1988); Vukadinovich v. Bartels, 853 F.2d 1387, 1389-90 (7th Cir.1988). The first step of this analysis— determining whether the plaintiffs speech was constitutionally protected — is a question of law for the court, see Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); see also Berg v. Hunter, 854 F.2d 238, 243 (7th Cir.1988), cert. denied, 489 U.S. 1053, 109 S.Ct. 1314, 103 L.Ed.2d 583 (1989); Hesse v. Board of Educ. of Township High Sch. Dist. No. 211, 848 F.2d 748, 753 (7th Cir.1988), cert. denied, 489 U.S. 1015, 109 S.Ct. 1128, 103 L.Ed.2d 190 (1989), which requires application of the two-part Connick-Pickering test. First, the court must determine whether the plaintiffs speech addressed a matter of public concern. See Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. If this hurdle is cleared, the court must then apply the Pickering balancing test to determine whether “the interests of the [plaintiff], as a citizen, in commenting upon matters of public concern” outweigh “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Educ. of Township High Sch. Dist. 205, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The district court rested its decision on the first prong of the Connick-Pickering test; it concluded that Mr. Kokkinis’ speech did not address a matter of public concern. The issue of sex discrimination in public employment is, of course," } ]

[ { "docid": "15357147", "title": "", "text": "the allegations supporting her discrimination claims, supplemented by the allegation that her employer’s actions were caused by protected activity, namely, her EEOC complaints and her lawsuit that began in 2007 and was settled in 2009. The district court found Carlson’s retaliation claim about not being reinstated as a substitute yardmaster when she left the training program to be plausible because CSX’s refusal to reinstate her came less than a month after she and the company agreed to a settle her earlier lawsuit. But the court concluded that the five months separating the resolution of the lawsuit and the first of Carlson’s later substitute yardmaster applications rendered her other retaliation claims implausible. Five months — “with no other evidence suggesting the protected conduct provoked CSX’s retaliation” — was too long for the events to be connected, the court reasoned, because four months was too long under Hughes v. Derwinski, 967 F.2d 1168 (7th Cir.1992). In Hughes, we affirmed the grant of summary judgment on a retaliation claim for the employer because, “standing by itself,” four months between the employee’s protected activity and his discipline could not support an inference that the two events were related. Id. at 1174-75. The “inference of causation weakens as the time between the protected expression and the adverse action increases, and then ‘additional proof of a causal nexus is necessary.’ ” Oest v. Illinois Dep’t of Corrections, 240 F.3d 605, 616 (7th Cir.2001), quoting Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir.1998). Even intervals shorter than four months are unlikely, standing alone, to establish the causation element of a retaliation claim. See Cung Hnin v. TOA (USA), LLC, 751 F.3d 499, 508 (7th Cir.2014) (“Under most circumstances, suspicious timing alone does not create a triable issue on causation. ...”). Although the district court once again seemed to require evidence at the pleading stage and, in citing only Hughes, relied exclusively on a summary judgment case, a retaliation claim can indeed be so bare-bones that a lengthy time period between the protected activity and the alleged retaliation will make any causal connection between the" }, { "docid": "10479001", "title": "", "text": "is a causal link between the protected expression and the adverse action. Kristufek v. Hussman Foodserv. Co., NO. 87-C-5621, 1989 WL 8529 (N.D.Ill. Feb. 1, 1989) (citing, in an ADEA case, Collins v. State of Illinois, 830 F.2d 692, 702 (7th Cir.1987)); see Holland v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1313 (7th Cir.1989). Here, Plaintiff contends that his firing constituted retaliation for his having complained to the Chairman of the Board of Directors about his demotion and the assignment of his former duties to younger employees. Defendants argue that Plaintiff has not stated a claim because he was not demoted and he took no action to oppose an unlawful practice under the ADEA. As explained above, the first of these arguments cannot be accepted on a motion to dismiss. The second argument raises the question of whether “complaining” about a purportedly discriminatory demotion constitutes “opposing” an unlawful practice. Defendants contend, without authority, that Plaintiffs complaining is not protected conduct. Plaintiff contends the opposite, also with little authority. Plaintiff cites Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir.1989), for the following statement: “... Congress sought to protect a wide range of activity in addition to the filing of a formal complaint.” This broad statement does little to narrow the issue, but Defendants have failed to provide contradictory authority. The proposition that Plaintiffs complaint constitutes protected expression is supported by Kristufek v. Hussman Foodserv. Co., NO. 87-C-5621, 1989 WL 8529 (N.D.Ill. Feb. 1, 1989). There, Judge Holderman held that there was a genuine issue of material fact on the “protected expression” issue where the Plaintiff claimed to have complained about a colleague’s discharge and his employer denied the complaint. Based on the decision in Kristufek, the Court thus permits the claim to proceed. CONCLUSION Accordingly, Defendants’ motion to dismiss is denied in part and granted in part. Subject to the requirements of Rule 11, Plaintiff is granted leave to file an amended complaint within thirty days of the date of this order. . IBL Corporation is not a named Defendant in this lawsuit. . The Court" }, { "docid": "2134215", "title": "", "text": "discrimination) and as a result suffered the adverse employment action of which he complains. If the evidence is uncontradicted, the plaintiff is entitled to summary judgment.” Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir.2002). In a claim involving allegations of retaliation, the direct method essentially requires direct evidence “that, if believed by the trier of fact would prove [discrimination] ‘without reliance on inference or presumption.’ ” Rogers, 320 F.3d at 753 (citing Walker v. Glickman, 241 F.3d 884, 888 (7th Cir.2001)). Said differently, direct evidence “essentially requires an admission by the decision-maker that his actions were based on the prohibited animus.” Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir.2000). However, it should not be surprising that in today’s workplace environment such admissions are rarely, if ever, made or encountered. See id. Therefore, under the direct method we now also allow circumstantial evidence to be introduced which would allow “a jury to infer intentional discrimination by the decision-maker.” Rogers, 320 F.3d at 753. Alternatively, under the indirect method, a plaintiff must first demonstrate that subsequent to the filing of a discrimination complaint, “[s]he, and not any similarly situated employee who did not file a charge, was subjected to an adverse employment action even though [s]he was performing [her] job in a satisfactory manner.” Stone, 281 F.3d at 644. If such a prima facie case of discrimination is established, the defendant bears the burden of establishing “unrebutted evidence of a noninvidious reason for the adverse action.” Id. This rule was developed to clarify the traditional burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and eliminates the need for a plaintiff to show a “causal-link” between a protected activity and an adverse employment action. Rogers, 320 F.3d at 755. However, whether a plaintiff proceeds under the direct or indirect method, evidence establishing that an adverse employment action has actually taken place is an essential element of the claim. Id. at 753-55. Some examples of an adverse employment action include “termination of employment, a demotion evidenced" }, { "docid": "7396375", "title": "", "text": "drastic manner, no actionable constitutional deprivation occurs. Wilton, 772 F.2d at 91; see also, Norbeck v. Davenport Community School District, 545 F.2d 63, 67 (8th Cir.1976); Local No. 2263, International Assc. of Fire Fighters, 439 F.Supp. 1224, 1230 (N.D.Miss.1977); Elk Grove Fire Fighters Local No. 2340 v. Willis, 400 F.Supp. 1097, 1100 (N.D.Ill.1975), aff'd, 539 F.2d 714 (7th Cir.1976). In this case, the competing interests are the interest of plaintiff in organizing union activities and defendants’ interest in providing efficient public services. In this regard, defendants argue that plaintiff’s union activities conflicted with her supervisory responsibilities over fellow union members. They therefore conclude that they were justified in removing plaintiff from the position of Director of Transportation. The court agrees that as a general rule, a public employee who acts in a supervisory capacity and has responsibility to exert control over the employees whom she supervises, possesses no constitutional right to organize those same employees into a labor union. This rule “is necessary in order to forestall a division of the supervisors’ loyalties between the union and their employer.” Wilton, 772 F.2d at 91 (quoting, York County Fire Fighters Ass’n. v. County of York, 589 F.2d 775, 778 (4th Cir.1978). However, in this case, a genuine issue of material fact surrounds the question whether plaintiff was indeed a “supervisor” when she was Director of Transportation. If she was not, then the inherent risks involved in dividing her loyalties between her employer and the union do not exist and the public interest in limiting her First Amendment rights would be outweighed by her individual rights of free speech and association. See Wilton, 772 F.2d at 88. Defendants take the position that no question of fact exists as to this issue because plaintiff has made previous admissions, connected with a prior preliminary injunction motion, that she was a “supervisor” when working as Director of Transportation. Plaintiff on the other hand, in connection with the pending motion, submits an affidavit which indicates that she had little if any supervisory duties. In this regard, defendant argues that plaintiff cannot present contradictory evidence merely to" }, { "docid": "16940758", "title": "", "text": "Malm’s application was not even considered. It is true that, as Hospira points out, three years passed between Malm’s complaint about Shah to Human Resources and the 2006 reorganization of her department. The district court held that three years was simply too long an interval to support an inference that retaliation had occurred. Hospira goes further, arguing in this appeal that the three-year time interval is a “fatal time gap” that forecloses any inference of retaliation. We disagree. “The mere passage of time is not legally conclusive proof against retaliation.” Robinson v. Southeastern Pennsylvania Transp. Auth., Red Arrow Div., 982 F.2d 892, 894 (3d Cir.1993); see also Carlson v. CSX Transp., Inc., 758 F.3d 819, 828-30 (7th Cir.2014) (rejecting timing-based rule at the pleadings stage and collecting cases); Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009-10 (7th Cir.2000) (“[o]f course, the fact that a year passed between [employee’s] protected expression and her termination does not mean that she cannot prove that retaliation caused her discharge”); Gee v. Principi, 289 F.3d 342, 345-47 (5th Cir.2002) (reversing summary judgment for employer where employee’s complaint and allegedly retaliatory failure to promote were separated by two years); Woodson v. Scott Paper Co., 109 F.3d 913, 916 (3d Cir.1997) (affirming verdict for plaintiff; reasonable jury could find retaliation where protected activity and plaintiffs termination were separated by two years). The strongest support for Hospira’s position is our decision in Oest v. Illinois Dep’t of Corrections, 240 F.3d 605 (7th Cir.2001). In Oest, the district court had “found dispositive” the interval between Ms. Oest’s complaint and the adverse employment actions. Id. at 615. We affirmed: “Under the circumstances presented here, ... the district court was correct in its estimation that the delay was too attenuated to support a jury verdict of retaliation.” Id. at 616. Although we affirmed the district court’s grant of summary judgment in Oest, we did not adopt the rule that Hospira advo cates, namely, that a long enough interval between protected activity and adverse employment action will bar any inference of retaliation. In fact, we made clear that we were not" }, { "docid": "5942073", "title": "", "text": "specific date in the record, but argues that because Dye was told about his demotion before November 8, 2006, the notice “must have occurred within two months, if not sooner, of the protected activity.” The majority relies on a Title VII decision from this Circuit that concluded the causation element of a prima facie case was met based on temporal proximity alone where three months had lapsed. See Ante (citing Singfield v. Akron Metro. Housing Auth., 389 F.3d 555, 563 (6th Cir.2004)). But this conclusion conflicts with a more recent decision of this Court. See Arendale v. City of Memphis, 519 F.3d 587, 606 (2008) (affirming summary judgment for defendant and rejecting plaintiffs argument that retaliatory events occurring two months after an EEOC charge of discrimination were alone sufficient to establish temporal causal connection). Even assuming the gap here was within two to three months, the majority also concedes that temporal proximity alone has its limitations and that “where some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality.” See Ante (citing Mickey v. Zeidler Tool & Die Co., 516 F.3d 516 (6th Cir.2008)); see also, Arendale, 519 F.3d at 606 (“Plaintiff claims that the fact that the retaliatory events occurred just two months after the EEOC charge of discrimination is enough by itself to support the causal connection element. This is simply a misstatement of the law. Absent other evidence of retaliation, Plaintiffs retaliation claim must fail”). Given that the evidence is unclear as to precisely when Dye and Post talked politics and when Post informed Dye his position was being eliminated, and that in any event it is likely the gap in time is at the outside limits of what this Court has determined is acceptable, Dye should have been required to bring some other evidence of retaliatory conduct in order to establish the elimination of his position was based on his protected speech. But neither Dye nor the majority point to any other evidence," }, { "docid": "15229176", "title": "", "text": "making complaints to management, writing critical letters to customers, or expressing support of co-workers who have filed charges.” Del Castillo v. Pathmark Stores, 941 F.Supp. 437, 438-439 (S.D.N.Y.1996). Plaintiffs must also demonstrate that NBC was aware that they had engaged in protected activity. Defendants must have “knowledge” of the protected activity to be able to “engage in retaliation.” Gordon v. Kings County Hosp. Ctr., 95-CV-3006, 2000 WL 1868091, at *6 (E.D.N.Y. Oct.25, 2000); see also Jalal v. Columbia Univ., 4 F.Supp.2d 224, 242 (S.D.N.Y.1998) (holding that, if defendant was unaware of plaintiffs activity, defendant’s actions “could not have been motivated by the fact that” plaintiff engaged in the activity). This knowledge cannot be shown by “inferences alone.” Gordon, 2000 WL 1868091, at *6. As discussed earlier, there is no exhaustive list of what constitutes an adverse employment action. Courts have held that termination, demotion, denial of promotion, addition of responsibilities, involuntary transfer that entails objectively inferior working conditions, denial of benefits, denial of a requested employment accommodation, denial of training that may lead to promotional opportunities, and shift assignments that make a normal life difficult for the employee, among other things, constitute- adverse employment actions. Still, plaintiffs must demonstrate the fourth element — a causal connection between these adverse employment actions and their statutorily protected activity. See McMenemy, 241 F.3d at 282-83. There are .several ways by which . a plaintiff may establish this causal connection. A plaintiff may do so “indirectly,” by showing that “the protected activity was followed closely by discriminatory treatment.” Rodriguez v. Beechmont Bus Svc., Inc., 173 F.Supp.2d 139, 150 (S.D.N.Y.2001) (citing DeCintio v. Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir.1987)). Although there is no “bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and , an allegedly retaliatory action,” Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir.2001), the Supreme Court has insisted that “temporal proximity must be ‘very close’.” Clark County Sch. Dist. v. Breeden, 532 U.S." }, { "docid": "8625414", "title": "", "text": "Amendment. Pickering requires the district court to balance the interest of the public employee in exercising his right of free speech or association against the “interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568, 88 S.Ct. at 1734-35; see also Shahar v. Bowers, 114 F.3d 1097, 1112 (11th Cir.1997) (en banc) (Tjoflat, J., specially concurring) (“Pickering balancing, in the public employment context, involves the weighing of the employee’s interest in the exercise of a constitutional right against the employer’s interest in maintaining an efficient workplace.”), cert. denied, — U.S. -, 118 S.Ct. 693, 139 L.Ed.2d 638 (1998). The defendants do not contest the existence of a First Amendment freedom of association right belonging to Ross, and, as noted above, the parties agree that the Pickering balancing test is applicable. Under Pickering and its progeny, an employee’s First Amendment rights are not absolute in the government employment context. In this case, defendants argue that Ross’s rights are outweighed by Clayton County’s interests. We find Clayton County’s interests in enforcing the Georgia Department of Corrections rule to be well-founded. In the context of law enforcement, there is a special need to employ persons who act with good judgment and avoid potential conflicts of interest. Personal associations with felons or active probationers could undermine appropriate objectives of a law enforcement agency. Ross contends that these interests are hypothetical and not entitled to much weight because Clayton County did not produce evidence that his living arrangement caused actual disruption to the correctional institution’s operation. However, a requirement of a showing of actual disruption would be overly burdensome to the public employer. In an analogous context, we held that an employer’s concerns can weigh into the Pickering balancing even though there is no actual showing that those concerns would manifest themselves in the employee’s individual situation. See Shahar v. Bowers, 114 F.3d 1097 (11th Cir.1997) (en banc). The plaintiff in Shahar argued that her same-sex marriage would have entailed no conflict-of-interest problem with her employment in the attorney general’s office because" }, { "docid": "5942072", "title": "", "text": "contrary to the Supreme Court’s rationale for addressing First Amendment claims involving government employers. Absent controlling law on this issue, I cannot conclude that plaintiffs Erskine and Pertunnen have satisfied their- burden of showing they engaged in protected First Amendment activity. Moreover, in my view, it was unnecessary for us to even decide this issue because none of the plaintiffs can satisfy the additional elements of a prima facie retaliation claim. II. A. Dye’s Protected Speech Claim The majority concludes that the temporal proximity between Dye’s speech and his demotion satisfies the causal-connection element of his First Amendment Claim. The majority grounds this conclusion on flimsy evidence that Dye’s speech and his demotion actually occurred within two months of each other. It is true that sometime between October 11, 2006 and November 8, 2006, defendant Post informed Dye that his position was being eliminated. From this, the majority concludes that Dye’s political speech with Post happened “[a]t the very earliest ... on some date in September 2006.” The majority also acknowledges that there is no specific date in the record, but argues that because Dye was told about his demotion before November 8, 2006, the notice “must have occurred within two months, if not sooner, of the protected activity.” The majority relies on a Title VII decision from this Circuit that concluded the causation element of a prima facie case was met based on temporal proximity alone where three months had lapsed. See Ante (citing Singfield v. Akron Metro. Housing Auth., 389 F.3d 555, 563 (6th Cir.2004)). But this conclusion conflicts with a more recent decision of this Court. See Arendale v. City of Memphis, 519 F.3d 587, 606 (2008) (affirming summary judgment for defendant and rejecting plaintiffs argument that retaliatory events occurring two months after an EEOC charge of discrimination were alone sufficient to establish temporal causal connection). Even assuming the gap here was within two to three months, the majority also concedes that temporal proximity alone has its limitations and that “where some time elapses between when the employer learns of a protected activity and the subsequent adverse" }, { "docid": "19781240", "title": "", "text": "to the plaintiff, and (4) there was a causal connection between the protected activity and the adverse employment action. Id at 404. In order to establish such a causal connection, a plaintiff must show some type of retaliatory intent. Tennial therefore had to establish that the true motivation for his placement on a MPIP and his subsequent demotion were not for the reasons given, but were instead based on the fact that he took a medical leave of absence. Id. at 404. To prove this causal connection, Tennial points to two sources of evidence: (1) the timing of his demotion, and (2) his supervisors’ hostility towards employees that take leave during the peak holiday season. But neither of these theories are supported by sufficient evidence from which a reasonable jury could find in his favor. Tennial requested and was granted leave under the FMLA shortly after his September 2011 meeting with Harms, and he returned to work in early 2012. Following his placement on a MPIP and his failure to meet those performance goals, Tennial was demoted to supervisor status in July 2012. Despite this nearly seven-month period of time between his return to work and his demotion, Tennial urges us to infer that his demotion was actually based on the exercise of his FMLA rights. The district court correctly noted, however, that the gap between Tennial’s return and his demotion is too long to support such an inference. Temporal proximity of more than six months, standing alone, has not been found to support an inference of retaliatory discrimination absent other compelling evidence. Nguyen v. City of Cleveland, 229 F.3d 559, 566-67 (6th Cir. 2000) (noting that “cases that have permitted a prima facie case to be made based on the proximity of time have all been short periods of time, usually less than six months”) (internal quotation marks omitted). Tennial contends, however, that there is additional evidence to support an inference of retaliatory discrimination. He points to the testimony of James Wherry, a former UPS division manager, who said that UPS has a policy of disfavoring employees that take" }, { "docid": "8263237", "title": "", "text": "Marriott has a legitimate, non-discriminatory reason for terminating Walsh: falsifying security log records. Walsh must now provide sufficient evidence upon which a reasonable jury could conclude that Marriott engaged in intentional discrimination in terminating Walsh. Walsh fails to meet this burden. In fact, Walsh does not even assert any arguments as to why Marriott’s rationale for terminating Walsh was pretextual. The bare evidence presented is insufficient to survive summary judgment. II. Retaliation Walsh alleges that he was demoted because of his race for signing a petition in support of two other employees. To make out a prima facie case for retaliation, “plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action.” Forrest, 3 N.Y.3d at 313, 786 N.Y.S.2d 382, 819 N.E.2d 998. The same burden-shifting standard described above applies to a retaliation claim. Coffey v. Dobbs Int’l Servs., Inc., 170 F.3d 323, 326 (2d Cir.1999). Thus, if the employer can state a legitimate, non-discriminatory reason to justify the adverse employment action, then the presumption of discriminatory retaliation drops away and the plaintiff is left with the burden of proving that defendant intentionally discriminated against the plaintiff in retaliation for his protected activity. Id. A. Prima Facie Case Walsh again tries to establish a prima facie case of discrimination based on disparate treatment. He notes that Garrett Clarke, a black supervisor who worked in the kitchen, signed the same petition as Walsh but was not reprimanded. Marriott contends that Clarke is not a proper comparator because he was a union member working in a different department. Wesley Peartree, a black timekeeper in the Loss Prevention department who also signed the petition but was not demoted, is Walsh’s second comparator. Marriott states that Peartree was a union employee, and was neither a supervisor nor an LPO. Clarke is not a similarly situated comparator. He worked in a different department with different workplace standards. Peartree" }, { "docid": "7396374", "title": "", "text": "union. If she did, or if a genuine issue of material fact surrounds the question whether she did, defendants’ motion must be denied. It is well established that individuals do not, by virtue of accepting public employment, waive First Amendment rights of freedom of speech and association. Connick v. Myers, 461 U.S. 138, 143-46, 103 S.Ct. 1684, 1688-90, 75 L.Ed.2d 708 (1983); Elrod v. Burns, 427 U.S. 347, 357, 96 S.Ct. 2673, 2681-82, 49 L.Ed.2d 547 (1976). However, these rights are not without limit. Wilton v. Mayor and City Council of Baltimore, 772 F.2d 88, 91 (4th Cir.1985). Determining what limits may be placed on First Amendment activities of public employees requires a balancing of the public interest asserted as a justification of limiting rights, against the interest of the individual employee whose rights are being curtailed. Benson v. Allphin, 786 F.2d 268, 267 (7th Cir.1986); Wilton, 772 F.2d at 91. When striking that balance, if the interest of the public is substantial and the rights of the individual employee are limited in the least drastic manner, no actionable constitutional deprivation occurs. Wilton, 772 F.2d at 91; see also, Norbeck v. Davenport Community School District, 545 F.2d 63, 67 (8th Cir.1976); Local No. 2263, International Assc. of Fire Fighters, 439 F.Supp. 1224, 1230 (N.D.Miss.1977); Elk Grove Fire Fighters Local No. 2340 v. Willis, 400 F.Supp. 1097, 1100 (N.D.Ill.1975), aff'd, 539 F.2d 714 (7th Cir.1976). In this case, the competing interests are the interest of plaintiff in organizing union activities and defendants’ interest in providing efficient public services. In this regard, defendants argue that plaintiff’s union activities conflicted with her supervisory responsibilities over fellow union members. They therefore conclude that they were justified in removing plaintiff from the position of Director of Transportation. The court agrees that as a general rule, a public employee who acts in a supervisory capacity and has responsibility to exert control over the employees whom she supervises, possesses no constitutional right to organize those same employees into a labor union. This rule “is necessary in order to forestall a division of the supervisors’ loyalties between the" }, { "docid": "5942043", "title": "", "text": "Auth., 389 F.3d 555, 563 (6th Cir.2004) (concluding that a lapse of three months is a sufficient temporal proximity to show causal connection). B. Dye’s and Erskine’s Terminations The stewards also argue that the district court erred in concluding that the stewards failed to show a causal connection between the protected activity and the June 2009 terminations. As with Dye’s demotion, the stewards rely wholly on temporal proximity to show a causal connection. The protected activity at issue began in the lead-up to the 2006 gubernatorial election and ended, when viewing the facts in the light most favorable to the stewards, in the winter of 2007. Both Dye and Erskine were fired in June of 2009, more than two years after the protected conduct. A lapse of more than two years between the protected activity and the adverse employment action is simply insufficient to show a causal connection based solely on a temporal-proximity theory. Dixon, 481 F.3d at 334 (“[T]he Supreme Court held that a finding of causal connection was not warranted where, among other things, almost two years elapsed between the employee’s participation in protected activity and the adverse employment decision.”) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)). Because the stewards do not proffer any additional evidence, we conclude that the stewards fail to show a causal connection as to the terminations. C. Decrease in Work Days and Pay The district court granted the defendants’ motion on this portion of the stewards’ claims on two bases: (1) the stewards’ failure to show a causal connection and (2) the convincing evidence proffered by the defendants in support of a legitimate reason to take this action. On appeal, however, the stewards argue only that the district court erred in concluding that the defendants had a legitimate reason to decrease the work days and pay. Appellants Br. at 43-46. Such an argument ties our hands. It is a basic tenet in retaliation claims that the burden shifts to the employer only after the employee has established a prima facie case. Countering" }, { "docid": "22464648", "title": "", "text": "a Department van approximately one month after the supervisors’ letters were submitted. Thus, although some time passed between fifing the complaint and the allegedly retaliatory acts, a very short lapse occurred among Lieutenant Sisson’s interviews with Ms. Oest’s supervisors, the letters to internal affairs, and Ms. Oest’s next disciplinary referral. Title VII prohibits employers from retaliating against employees who contest allegedly discriminatory acts. See 42 U.S.C. § 2000e-3(a). A prima facie case of retaliation is established when a plaintiff shows that (1) she engaged in protected activity under Title VII; (2) she suffered an adverse employment action subsequent to her participation; and (3) there exists a causal connection between the adverse employment action and her participation in protected activity. See Smart, 89 F.3d at 440. In evaluating claims such as this one, we have relied heavily on temporal proximity when analyzing retaliation claims; specifically, a “substantial time lapse ... is counter-evidence of any causal connection.” Johnson, 70 F.3d at 480. We also have held, however, that “[sjpeculation based on suspicious timing alone” does not support a reasonable inference of retaliation; a causal link, again, is required. Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir.2000). A mechanistically applied time frame would ill serve our obligation to be faithful to the legislative purpose of Title VII. The facts and circumstances of each case necessarily must be evaluated to determine whether an interval is too long to permit a jury to determine rationally that an adverse employment action is hnked to an employee’s earlier complaint. The inference of causation weakens as the time between the protected expression and the adverse action increases, and then “additional proof of a causal nexus is necessary.” Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir.1998). Thus, we have permitted retaliation charges to proceed in the face of long intervals only* when additional circumstances demonstrate that an employer’s acts might not be legitimate. See McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473, 485 (7th Cir.1996). Under the circumstances presented here, we believe that the district court was correct in its estimation" }, { "docid": "8483813", "title": "", "text": "of proof because he cannot establish the “causal connection” between his comment to Jalowiec and his demotion. Cracco, 559 F.3d at 633. We have repeatedly held that “temporal proximity” or suspicious timing alone is rarely sufficient to overcome a motion for summary judgment. See, e.g., Simpson v. Office of Chief Judge of Circuit Court of Will Co., 559 F.3d 706, 713 (7th Cir.2009) (citation omitted); Daugherty v. Wabash Center, Inc., 577 F.3d 747, 752 (7th Cir.2009). Additionally, a track record of job performance issues prior to the employee’s protected activity does not establish circumstantial evidence in support of a retaliation claim. See, Long v. Teachers’ Ret. Sys. of Ill., 585 F.3d 344, 354 (7th Cir.2009) (“a decline in performance before the employee engages in protected activity does not allow for an inference of retaliation”). Summary judgment for the employer is proper where the employer provides undisputed evidence that the adverse employment action is based upon the employee’s poor job performance. See, e.g., Daugherty, 577 F.3d at 752 (employer produced undisputed evidence that employee was fired for misconduct, after numerous job performance problems, so “no dispute” regarding employer’s motivation for firing employee); Cracco, 559 F.3d at 633-34 (where employer found several performance problems with employee, employee could not establish causal connection under direct method “because [employer’s] actions do not suggest [employer] was acting under a prohibited animus”). Additionally, in Simpson, we rejected the employee’s contention that the employer used what would otherwise be legitimate reasons for firing her as a pretext for the employer’s true purpose to fire her for taking FMLA leave. Simpson, 559 F.3d at 715. There, the employee was fired primarily based on a report prepared by the County Auditor that found the employee had engaged in a fraudulent billing scheme. Id. at 709. We held the employee’s retaliation claim failed because no evidence was presented establishing the causal connection between her FMLA leave and her termination. Id. at 717. Other than her own unsupported allegation, the employee failed to present any evidence that the Chief Judge did not rely on the findings of the investigation to fire" }, { "docid": "15357148", "title": "", "text": "between the employee’s protected activity and his discipline could not support an inference that the two events were related. Id. at 1174-75. The “inference of causation weakens as the time between the protected expression and the adverse action increases, and then ‘additional proof of a causal nexus is necessary.’ ” Oest v. Illinois Dep’t of Corrections, 240 F.3d 605, 616 (7th Cir.2001), quoting Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir.1998). Even intervals shorter than four months are unlikely, standing alone, to establish the causation element of a retaliation claim. See Cung Hnin v. TOA (USA), LLC, 751 F.3d 499, 508 (7th Cir.2014) (“Under most circumstances, suspicious timing alone does not create a triable issue on causation. ...”). Although the district court once again seemed to require evidence at the pleading stage and, in citing only Hughes, relied exclusively on a summary judgment case, a retaliation claim can indeed be so bare-bones that a lengthy time period between the protected activity and the alleged retaliation will make any causal connection between the two implausible. If the best a plaintiff can do is allege that he engaged in protected activity and then, years later, the employer took an adverse action against him, the claim may not be permitted to proceed. See, e.g., Carmody v. Board of Trustees of Univ. of Illinois, 747 F.3d 470, 480 (7th Cir.2014) (unex plained three-year gap between employee’s report against another employee and his termination made state-law retaliation claim implausible where focus of case was much more immediate dispute, including full due-process hearing, over whether employee had breached security of employer’s computer network). But no bright-line timing rule can be used to decide whether a retaliation claim is plausible or whether it should go to a jury. Other factors can always be relevant. “A mechanistically applied time frame would ill serve our obligation to be faithful to the legislative purpose of Title VII. The facts and circumstances of each case necessarily must be evaluated to determine whether an interval is too long to permit a jury to determine rationally that an adverse employment" }, { "docid": "1213482", "title": "", "text": "motive with evidence that an adverse employment action “took place on the heels of protected activity.” Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir.1994). Mullin contends that the 1999 refusal to correct the Mahr Report was the defendants’ first opportunity to act against her after she sent the November 1997 letter. Moreover, she urges us to start the clock not in 1997 but rather in February 1998, when Get-tinger, with Witthuhn’s approval, sent a letter to the Butts family stating that the investigation was continuing. But that February 1998 date is irrelevant; the clock begins when the defendants learned of Mullin’s protected speech, and Mullin agrees that Witthuhn and Stiffler learned about her November 17, 1997 letter shortly after she sent it. In any case, the time gap between Mullin’s 1997 letter or Get-tinger’s February 1998 letter and any 1999 action by Witthuhn and Stiffler is too attenuated to provide evidence that Mullin’s letter motivated their actions. Witthuhn and Stiffler learned of Mullin’s letter at least one year before they took any action against her. Once the grievance process began, they worked with Mullin for several weeks to resolve her grievance before the sick leave calculation became an issue. Witthuhn and Stiffler had opportunities during that year and during those discussions to retaliate against Mullin if they were so inclined. Instead, they suggested early retirement to Mullin, a solution to which she readily agreed on the condition that her benefits were adequate. This is hardly evidence that the defendants were motivated by retaliation. Moreover, the fact that a plaintiffs protected speech may precede an adverse employment decision alone does not establish causation. Cromley v. Board of Educ. of Lockport Township High School Dist. 205, 17 F.3d 1059, 1068 (7th Cir.), cert. denied, 513 U.S. 816, 115 S.Ct. 74, 130 L.Ed.2d 28 (1994). See also Oest v. Illinois Dept. of Corr., 240 F.3d 605, 616 (7th Cir.2001) (the inference of causation weakens as the time between the protected expression and the adverse action increases thus requiring additional proof of a causal nexus). The remaining focus of" }, { "docid": "18006853", "title": "", "text": "except your union involvement.” According to Sullivan, Lightfoot expressed no concern about a possible lawsuit for any discriminatory action, promising that he would promote Wilton and Sullivan before the suit could accomplish any purpose. Wilton and Sullivan did sue in May 1980, and Lightfoot did promote them both in May 1981. This action continued, however, on claims for back pay, retroactive seniority, and miscellaneous damages. Under plaintiffs’ interpretation of the First Amendment, they would be entitled to these remedies if they proved that the defendants had considered Wilton’s and Sullivan’s union activism in the promotion decisions. Reading the evidence in the light most favorable to the plaintiffs, we agree that they have established the facts that they intended to demonstrate. But we disagree on the conclusions of law that are to be drawn from the situation. II As this court noted in English v. Powell, 592 F.2d 727, 733 (4th Cir.1979), the relationship of the First Amendment to the organizational activities of public employees is an unsettled area of law. See gener ally Comment, Labor Law — The Exclusivity Principle in the Public Employment Sector and First Amendment Rights, 23 N.Y.L.Sch.L.Rev. 132 (1977). The aspects relevant to this case, however, are clear. In York County Fire Fighters Association, Local 2498 v. County of York, Virginia, 589 F.2d 775 (4th Cir.1978), this court held that a locality “may validly prohibit supervisory personnel in the fire department from belonging to a union in which rank and file fire fighters of the department are members.” Id. at 777. Adopting the reasoning of Elk Grove Firefighters, Local No. 2340 v. Willis, 400 F.Supp. 1097 (N.D.Ill.), aff'd, 539 F.2d 714 (7th Cir.1976), the court explained the fire fighters’ situation in terms that apply as accurately to corrections officials like Wilton and Sullivan: ... a first amendment right to associate may be validly limited where the limitation is necessary to a substantial and legitimate state interest. An efficient fire department is a legitimate and substantial state interest because of the need of fire fighters to act quickly and effectively to prevent loss of life and property," }, { "docid": "8483812", "title": "", "text": "(“[a]n employee who fraudulently obtains FMLA leave from an employer is not protected by FMLA’s job restoration or maintenance of health benefits provisions”); see also, e.g., Smith, 560 F.3d at 702 (employee’s submission of “false paperwork” requesting FMLA leave rendered request “invalid,” did not constitute “statutorily protected activity,” and employee not fired for asserting FMLA rights); Scruggs, 688 F.3d at 826 (where employer had “honest suspicion” that employee submitted false paperwork and misused FMLA leave, employer did not violate FMLA by terminating employee); Jones v. C & D Technologies, Inc., 684 F.3d 673, 679 (7th Cir.2012) (employee not entitled to FMLA leave where employee misused such leave). Whether or not Curtis’s comment can be construed as providing sufficient notice for FMLA purposes, this particular comment fell outside the scope of protected activity, given the undisputed fact that Costco acted on information that Jalowiec voluntarily passed along to management — namely, her concern that Curtis intended to “scam” the company by taking a fraudulent medical leave. Second, Curtis’s retaliation claim also fails under the direct method of proof because he cannot establish the “causal connection” between his comment to Jalowiec and his demotion. Cracco, 559 F.3d at 633. We have repeatedly held that “temporal proximity” or suspicious timing alone is rarely sufficient to overcome a motion for summary judgment. See, e.g., Simpson v. Office of Chief Judge of Circuit Court of Will Co., 559 F.3d 706, 713 (7th Cir.2009) (citation omitted); Daugherty v. Wabash Center, Inc., 577 F.3d 747, 752 (7th Cir.2009). Additionally, a track record of job performance issues prior to the employee’s protected activity does not establish circumstantial evidence in support of a retaliation claim. See, Long v. Teachers’ Ret. Sys. of Ill., 585 F.3d 344, 354 (7th Cir.2009) (“a decline in performance before the employee engages in protected activity does not allow for an inference of retaliation”). Summary judgment for the employer is proper where the employer provides undisputed evidence that the adverse employment action is based upon the employee’s poor job performance. See, e.g., Daugherty, 577 F.3d at 752 (employer produced undisputed evidence that employee was fired" }, { "docid": "16940759", "title": "", "text": "(reversing summary judgment for employer where employee’s complaint and allegedly retaliatory failure to promote were separated by two years); Woodson v. Scott Paper Co., 109 F.3d 913, 916 (3d Cir.1997) (affirming verdict for plaintiff; reasonable jury could find retaliation where protected activity and plaintiffs termination were separated by two years). The strongest support for Hospira’s position is our decision in Oest v. Illinois Dep’t of Corrections, 240 F.3d 605 (7th Cir.2001). In Oest, the district court had “found dispositive” the interval between Ms. Oest’s complaint and the adverse employment actions. Id. at 615. We affirmed: “Under the circumstances presented here, ... the district court was correct in its estimation that the delay was too attenuated to support a jury verdict of retaliation.” Id. at 616. Although we affirmed the district court’s grant of summary judgment in Oest, we did not adopt the rule that Hospira advo cates, namely, that a long enough interval between protected activity and adverse employment action will bar any inference of retaliation. In fact, we made clear that we were not adopting that standard: A mechanistically applied time frame would ill serve our obligation to be faithful to the legislative purpose of Title VII. The facts and circumstances of each case necessarily must be evaluated to determine whether an interval is too long to permit a jury to determine rationally that an adverse employment action is linked to an employee’s earlier complaint. The inference of causation weakens as the time between the protected expression and the adverse action increases, and then additional proof of a causal nexus is necessary. Thus, we have permitted retaliation charges to proceed in the face of long intervals only when additional circumstances demonstrate that an employer’s acts might not be legitimate. Id. (internal quotations and references omitted). See also Carlson v. CSX Transp., Inc., 758 F.3d at 829 (“no bright-line timing rule can be used to decide whether a retaliation claim is plausible or whether it should go to a jury”), citing Oest. We reiterate what we have said consistently and repeatedly in retaliation cases stretching back more than a decade:" } ]

[ { "docid": "22577438", "title": "", "text": "are the proceeds from the sale of advertising in newspapers and other publications, § 26-52-401(13) (Supp. 1989). Proceeds from the sale of advertising for broadcast radio and television services are not included in the tax. Insofar as the Arkansas Supreme Court found that cable and scrambled satellite television are a single medium, 301 Ark. 483, 487, 785 S. W. 2d 202, 204-205 (1990), this case also involves a straightforward application of Arkansas Writers’ Project and Minneapolis Star in resolving the cable operators’ constitutional challenge to the taxes that they paid prior to 1989, the year in which Arkansas amended its sales tax to include the subscription fees collected by scrambled-satellite television. I would affirm on that basis the Arkansas Supreme Court’s conclusion that the pre-1989 version of the Arkansas sales tax violated the First Amendment by imposing on cable a tax burden not borne by its scrambled-satellite television. 1 need not consider what, if any, state interests might justify selective taxation of cable television, since the State has advanced no interest other than revenue enhancement. I also do not dispute that the unique characteristics of cable may justify special regulatory treatment of that medium. See Los Angeles v. Preferred Communications, Inc., 476 U. S. 488, 496 (1986) (Blackmun, J., concurring); cf. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 386-401 (1969). I conclude only that the State is not free to burden cable with a selective tax absent a clear nexus between the tax and a “special characteristic” of cable television service or a “counterbalancing interest of compelling importance.” Minneapolis Star, 460 U. S., at 585. Even if it did happen to apply neutrally across the range of viewpoints expressed in the Arkansas information market, Arkansas’ discriminatory tax would still raise First Amendment problems. “It hardly answers one person’s objection to a restriction on his speech that another person, outside his control, may speak for him.” Regan v. Taxation with Representation of Washington, 461 U. S. 540, 553 (1983) (Blackmun, J., concurring). The majority’s reliance on Mabee v. White Plains Publishing Co., 327 U. S. 178 (1946), and" } ]

[ { "docid": "22960935", "title": "", "text": "over the last 45 years, we disavow it. In Murdock, the Court ruled that a city could not impose a flat license tax payable by “all persons canvassing for or soliciting . . . orders for goods, paintings, pictures, wares, or merchandise of any kind” on Jehovah’s Witnesses who “went about from door to door . . . distributing literature and soliciting people to ‘purchase’ certain religious books and pamphlets.” 319 U. S., at 106. In Follett, the Court ruled similarly that a Jehovah’s Witness who “went from house to house distributing certain books” was exempt under the Free Exercise Clause from payment of a flat business and occupation tax on booksellers. 321 U. S., at 574. In both cases, the majority stated that the “sale” of religious pamphlets by itinerant evangelists was a form of preaching, Murdock, supra, at 109; Follett, supra, at 577, and that imposing a license or occupation tax on such a preacher was tantamount to exacting “a tax from him for the privilege of delivering a sermon.” Murdock, 319 U. S., at 112. The Court acknowledged that imposing an income or property tax on preachers would not be unconstitutional. Ibid. It emphasized, however, that a flat license or occupation tax poses a greater threat to the free exercise of religion than do those other taxes, because it is “levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the First Amendment” and thus “restrains in advance those constitutional liberties . . . and inevitably tends to suppress their exercise.” Id., at 114. See Follett, supra, at 575. If one accepts the majority’s characterization of the critical issues in Murdock and Follett, those decisions are easily compatible with our holding here. In striking down application of the town ordinance to Jehovah’s Witnesses in Follett — an ordinance the Court found to be “in all material respects the same,” 321 U. S., at 574, as the one whose application it restricted in Murdock — the Court declared that only a single “narrow” question was presented: “It is whether a flat license" }, { "docid": "9882302", "title": "", "text": "challenge affords no safety net for this claim. Accordingly, we endorse the district court’s conclusion that W & S’s free speech claim has little chance of succeeding on the merits. B. The Freedom of Association Claim. W & S strives to persuade us that the challenged statutes, by directly and indirectly prohibiting the holders of Class A liquor licenses from engaging in franchise relationships, impinge on its First Amendment right to associate with its franchisees for the purposes of joint advertising and development of common management and marketing strategies. We are not convinced. The Supreme Court long has recognized that freedom of speech embraces the “freedom to engage in association for the advancement of beliefs and ideas.” NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). This freedom of expressive association emerges from the insight that expressive rights explicitly guaranteed by the First Amendment “could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Because protection of the right to associate evolves from the First Amendment’s guarantees of speech, assembly, petition, and free exercise, the scope of protection for association corresponds to the constitutional solicitude afforded to the mode of First Amendment expression in which a particular group seeks collectively to engage. See id. It follows logically that, in a free speech case, an association’s expressive purpose may pertain to a wide array of ends (including economic ends), see id., but the embedded associational right protects only collective speech and expressive conduct in pursuit of those ends; it does not cover concerted action that lacks an expressive purpose, see City of Dallas v. Stanglin, 490 U.S. 19, 24-25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989). So viewed, the right to expressive association does not confer a generalized freedom for individuals or entities collectively to engage in activity that is otherwise regulable when undertaken by a single individual or entity. See id. As one treatise" }, { "docid": "77376", "title": "", "text": "denial of Baby Tam’s application for a preliminary injunction. Because our resolution of this issue is determinative of the litigation, we remand with instructions to the district court to enter a permanent injunction enjoining enforcement of the ordinance in its present form. FACTS Baby Tam operates its business under the name “Hot Stuff.” Among other items, the store sells sexual novelties, adult videos, general videos, T-shirts, and gag gifts. In January of 1997, Baby Tam sought a business license for Hot Stuff from the City of Las Vegas. In Las Vegas, a business must obtain a license before beginning operations. Las Vegas, Nev. Municipal Code (“L.V.M.C.”) § 6.02.060 (1996). Baby Tam proposed to operate its business at 5100 W. Charleston Boulevard in the City of Las Vegas. This location is within the City’s C — 1 zone. That zone allows the presence of various commercial establishments, but not adult bookstores. L.V.M.C. § 19.74.020(A) (1992). Adult bookstores are permitted in other zones in the City. Under L.V.M.C. § 19.74.020(A), an “adult bookstore” is defined as an establishment “having at least fifty-one percent of its stock in trade books, film, magazines, and other periodicals which are distinguished or characterized by an emphasis on depicting or describing sexual conduct or specified anatomical areas.” On its application for a business license, Baby Tam stated that 30% of its merchandise would be adult videos. Based on that application, the City issued a 60-day temporary bookstore license which enabled Hot Stuff to begin operations. After the temporary license expired, the City issued another temporary license. In all, Baby Tam received four temporary licenses. Under the temporary license provision of the City’s licensing ordinance, a business may receive a maximum of only three temporary licenses. L.V.M.C. § 6.02.070(D). Baby Tam never received a permanent license. Before the final temporary license expired, the City conducted an audit of the Hot Stuff store’s inventory to determine what percentage of it consisted of adult material. According to the results of that audit, the store’s adult inventory exceeded the 51% threshold proscribed by the zoning ordinance. The City ordered Baby Tam" }, { "docid": "10053856", "title": "", "text": "Institute for Global Prosperity (IGP). Membership lists have a long and unique history in our constitutional jurisprudence, and the seizure of such items implicates the rights of freedom of association and freedom of speech under the First Amendment. In NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), the government action at issue, as in this ease, was the compelled disclosure of the organization’s membership lists. Id. at 460, 78 S.Ct. 1163. The Court stated that “[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may consti-tutefan] effective ... restraint on freedom of association.” Id. Thus, the Court recognized that the destruction of members’ anonymity may hamper their individual rights to associate freely. See Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 544, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963) (stating that right of association includes protection of privacy of association); NAACP, 357 U.S. at 462, 78 S.Ct. 1163 (“This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations.”). The concern for the protection of the right of free association, and the ability to maintain one’s privacy in that association, is especially present in political, economic, and religious organizations, NAACP, 357 U.S. at 460, 78 S.Ct. 1163, including tax protester groups. First Nat’l Bank v. United States, 701 F.2d 115, 118 (10th Cir.1983) (“The chilling effect of a summons served by an IRS agent to obtain membership records of a tax protester group ... [is] readily apparent”) (internal quotation marks omitted). It is especially important that we be vigilant in our protection “when a group espouses dissident beliefs.” NAACP, 357 U.S. at 462, 78 S.Ct. 1163. Accordingly, a government action that directly, or indirectly, limits the freedom to associate “is subject to the closest scrutiny.” Id. at 461, 78 S.Ct. 1163; see also Bates v. Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960) (stating that associational rights are protected “from being stifled by more subtle governmental interference”). Here, the appellants, who head a tax protester organization, assert" }, { "docid": "14354545", "title": "", "text": "of Skokie, 432 U.S. 43, 44, 97 S.Ct. 2205, 2206, 53 L.Ed.2d 96 (1977). III. A. TK’s urges that the County’s list of persons associated with its business who must be licensed is impermissibly broad. Denton County required a license from numerous persons associated with adult businesses. The district court, however, struck down licensing requirements for stockholders, limited partners, equity holders and their employees, and property owners and equity holders associated with adult businesses from the regulation. This exclusion is not at issue and the regulation now extends only to owners, clerks, and employees of adult businesses, corporations or directors of adult businesses and their employees, and partners in adult businesses and their employees. Under, the licensing provision the County Director of Public Works must approve a license unless he finds an enumerated disqualifying factor such as a prior adult business regulatory violation or a conviction for a certain sexual offense. Licensing clerks and employees ensures that only persons who satisfy basic legal and hygienic standards work in adult businesses. The County also requires that all adult business employees wear an identification card at work. The County says that this requirement permits it to monitor the work force of adult businesses and to ensure that only duly authorized adults work in these enterprises. While corporations reasonably may be obliged to submit detailed business information to obtain a license, the requirement that owners and employees disclose personal information to County officials is more burdensome. The Denton County order requires owners and employees to disclose only their age, recent infractions of certain adult business regulations, and recent convictions for certain sexual offenses. The County says that their information assists in making background checks and preparing identification cards. Compelled content-neutral disclosure of owner and employee information can chill protected expression. See Talley v. California, 362 U.S. 60, 64, 80 S.Ct. 536, 538-39, 4 L.Ed.2d 559 (1960); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461-62, 78 S.Ct. 1163, 1171-72, 2 L.Ed.2d 1488 (1958). This chill could occur even if suppressing particular expression is unintended. NAACP, 357 U.S. at 461, 78 S.Ct. at" }, { "docid": "23042835", "title": "", "text": "The fact the burden is on the applicant during these administrative proceedings is of no consequence, at least from the standpoint of the First Amendment. In FW/PBS, the Supreme Court rejected the argument that, in the event of judicial review, the regulator must bear the burden of proof once in court. Id. at 230, 110 S.Ct. 596. The Court reasoned that under the ordinance, “the city does not exercise discretion by passing judgment on the content of any protected speech,” but merely engages in “a ministerial act that is not presumptively invalid.” Id. at 229, 110 S.Ct. 596. Furthermore, the applicant has a great deal at stake when a license application is denied, and as such “there is every incentive for the applicant to pursue a license denial through court.” Id. at 230, 110 S.Ct. 596. For these reasons, the Court concluded that “the First Amendment does not require that the city bear the burden of going to court to effect the denial of a license application or that it bear the burden of proof once in court.” Id. Precisely the same circumstances arise here. In deciding whether to issue a license, the licensor “does not exercise discretion by passing judgment on the content of any protected speech.” Id. at 229, 110 S.Ct. 596. Moreover, “[bjecause the license is the key to the applicant’s obtaining and maintaining a business,” id. at 229-30, 110 S.Ct. 596, Dream Palace has an incentive vigorously to pursue administrative review of an adverse decision. We fail to see why the First Amendment would require the county to bear the burden in administrative review proceedings, but not in court. Requiring the applicant to bear the burden of proof in administrative proceedings is, therefore, valid under the First Amendment. 2 Second, Dream Palace argues that the ordinance fails to comply with the second of the FW/PBS requirements: that there be “the possibility of prompt judicial review.” FW/PBS, 493 U.S. at 228, 110 S.Ct. 596. a Dream Palace originally rested this argument on our holding in Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d" }, { "docid": "248632", "title": "", "text": "we need not consider the district court’s conclusion that the government would have obtained the information underlying the subpoena from independent sources. III. Appellants argue that enforcement of the subpoena issued to Roberts would violate their freedom of expressive association. Although we ultimately conclude that the first amendment does not bar enforcement of the subpoena, we must address what the first amendment requires the government to demonstrate in cases such as this one. A. In NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), a unanimous Supreme Court first gave full expression to the right now recognized as freedom of “expressive association.” Alabama had brought suit against the NAACP, seeking its expulsion from the state for failure to comply with a statute requiring the registration of all foreign corporations transacting intrastate business. Alabama moved for production of documents that would disclose the names and addresses of all Alabama members and agents of the NAACP, arguing that it needed the information to prepare for an evidentiary hearing. The NAACP refused to comply with the production order and was adjudged in civil contempt by a state court. The United States Supreme Court reversed. The Court first concluded that “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment.” Id. at 460, 78 S.Ct. at 1171. The Court stated further that the NAACP members’ freedom of association necessarily entailed the right to privacy in their association, for “[ijnviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” Id. at 462, 78 S.Ct. at 1172. It was irrelevant that Alabama had not sought to restrict free association directly, because “abridgment of such rights, even though unintended, may inevitably follow from varied forms of governmental action.” Id. at 461, 78 S.Ct. at 1171. NAACP v. Alabama suggested that when the compelled disclosure of affiliation with groups engaged in advocacy would impair the exercise of" }, { "docid": "23502877", "title": "", "text": "(9th Cir.1999) (en banc); Laborers Health & Welfare Trust v. Westlake Dev., 53 F.3d 979, 981 (9th Cir.1995). Summary judgment is appropriate if, viewing the evidence in the light most favorable to the nonmoving party, (a) “the district court correctly applied the relevant substantive law” and (b) there are no genuine issues of material fact in dispute. Id. We review de novo the question whether a party has standing to bring an action. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1152 (9th Cir.2000). DISCUSSION Clark levels a broadside attack on the Ordinance on several grounds. First, he argues the Ordinance was passed in violation of the Open Public Meetings Act. Second, he argues the Ordinance violates the United States and Washington Constitutions’ guarantees of free speech. He makes a facial overbreadth challenge to the entire Ordinance, claiming Lakewood has not put forth sufficient evidence to justify these regulations and that the burdens they place upon free speech are unwarranted. Specifically, he claims that: (a) The 35-day and 21-day licensing waiting periods for owners and managers, respectively, is an unconstitutional prior restraint because a decision to issue or deny a license is not made within a brief, specified and reasonably prompt period of time. See Baby Tam & Co. v. City of Las Vegas, 154 F.3d 1097, 1100-01 (9th Cir.1998); Ino, Ino, Inc. v. City of Bellevue, 132 Wash.2d 103, 123, 937 P.2d 154 (1997). (b) The licensing requirement for entertainers is also an unconstitutional prior restraint because there is no stay from a decision upholding a license denial and because there is no right to prompt judicial review and decision. See Baby Tam, 154 F.3d at 1100-01. (c) The forced disclosure of license applicants’ home addresses and phone numbers does not further a substantial government interest, in violation of the First Amendment. See Acorn Investments, Inc. v. City of Seattle, 887 F.2d 219, 225 (9th Cir.1989); see also Buckley v. Valeo, 424 U.S. 1, 64-66, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). (d) There is no justification for requiring stage dancers to be eight feet away from the audience, entertainers" }, { "docid": "77379", "title": "", "text": "a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.” United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir.1992) (quoting Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir.1985)). They are not separate tests but rather “outer reaches of a single continuum.” Los Angeles Memorial Coliseum Comm’n v. National Football League, 634 F.2d 1197, 1201 (9th Cir.1980). The district court determined that the Las Vegas ordinance did not amount to an unconstitutional prior restraint, and Baby Tam lacked standing to challenge the amendment. The court also concluded that Baby Tam demonstrated neither a probability of success on the merits nor sufficiently serious questions going to the merits to make the case a fair ground for litigation. Baby Tam asserts both a facial and an as-applied challenge to the constitutionality of the ordinance. We first consider the facial challenge and whether Baby Tam has standing to assert it. Facial challenges to legislation have been permitted in the context of the First Amendment when the legislation allegedly vests government officials with unbridled discretion. The rationale is that “every application of the statute create[s] an impermissible risk of suppression of ideas.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 n. 15, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). A facial challenge is also appropriate when there is a lack of adequate procedural safeguards necessary to ensure against undue suppression of protected speech. FW/PBS, 493 U.S. at 223-24, 110 S.Ct. 596. Because, according to Baby Tam, the licensing/zoning ordinance vests the City with “unbridled discretion” to deny a license, and because the ordinance lacks constitutionally required procedural safeguards, Baby Tam has standing to assert its facial challenge. In making this challenge, it contends the City’s licensing and zoning ordinance is an unconstitutional prior restraint of speech. A prior restraint exists when the enjoyment of protected expression is contingent upon the approval of government officials. Near v. Minnesota, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Because L.V.M.C. § 6.06A.015 requires all proposed" }, { "docid": "10053855", "title": "", "text": "that \"no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.\" 26 U.S.C. § 7421(a). REINHARDT, Circuit Judge, dissenting: The majority asserts that it merely applies the clear rule of DiBella and DeMas-sa to the case at hand. The rule is hardly clear and in my view is not applicable to claims of serious, imminent, and irreparable violations of First Amendment rights. Accordingly, I dissent. The majority treats the appellants’ motion as simply a “functional” 41(e) motion that, under the law of our circuit, is tied to an ongoing criminal proceeding and thus is unappealable. In so doing, the majority fails to consider adequately the nature and importance of the subject matter of the appellants’ motion. The appellants seek to enjoin the government from seizing and making use of their membership lists— lists of the names and other identifying information regarding all current and prospective members of the Institute for Global Prosperity (IGP). Membership lists have a long and unique history in our constitutional jurisprudence, and the seizure of such items implicates the rights of freedom of association and freedom of speech under the First Amendment. In NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), the government action at issue, as in this ease, was the compelled disclosure of the organization’s membership lists. Id. at 460, 78 S.Ct. 1163. The Court stated that “[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may consti-tutefan] effective ... restraint on freedom of association.” Id. Thus, the Court recognized that the destruction of members’ anonymity may hamper their individual rights to associate freely. See Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 544, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963) (stating that right of association includes protection of privacy of association); NAACP, 357 U.S. at 462, 78 S.Ct. 1163 (“This Court has recognized the vital relationship between freedom to associate and privacy in" }, { "docid": "7008889", "title": "", "text": "court or other governmental entity to order anyone to express and print in the newspaper a particular racial attitude, political belief or social philosophy, however much most of us may agree with the viewpoint to be expressed. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (invalidating Florida law requiring newspapers to grant political candidates right of reply); Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (invalidating New Hampshire’s requirement that automobile drivers display state motto “Live Free or Die” on license plates). The claims of liberty of conscience, thought and speech are given precedence in the Constitution over the claims of equality of opportunity in housing and where the two conflict, as here, the claims of liberty must be satisfied first. The freedom that exists in this country to state beliefs different from those of the prevailing majority gave birth to the civil rights movement. That movement cannot last long if, in the name of equality, it undermines the conditions of liberty which sustain it by requiring others to publish statements agreeing with its position. Freedom of association is an aspect of freedom of speech and thought. To compel a particular statement about one’s philosophy of association seems to violate the concept of free association even more than the Alabama state law requiring disclosure of NAACP membership lists which the Supreme Court invalidated because “compelled disclosure . . . may constitute a restraint on freedom of association.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 463-64, 78 S.Ct. 1163, 1172-1173, 2 L.Ed.2d 1488 (1958). The line between forced association and the elimination of restrictions on the opportunity for blacks and whites to live together in a neighborhood — a distinction the federal housing act and this court are seeking to draw — may be at times a fine line. We do not in the long run foster the goals of association and racial cooperation by ordering cities to state new, and for some controversial, political attitudes. The Court suggests that the labor law, notice-posting cases provide" }, { "docid": "22768375", "title": "", "text": "association.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958); see also Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 543-44, 83 S.Ct. 889, 892-93, 9 L.Ed.2d 929 (1963) (reversing as unconstitutional contempt conviction upon failure to disclose membership lists to subversive activities committee because disclosure would interfere with associational rights); Bates v. City of Little Rock, 361 U.S. 516, 523-25, 80 S.Ct. 412, 416-18, 4 L.Ed.2d 480 (1960) (reversing convictions upon failure to disclose membership lists because interference with associational rights outweighed government interest in disclosure). Defendants rely on these cases for the proposition that plaintiffs’ discovery requests interfere with their First Amendment rights of free speech and association, and that there is no “cogent and compelling” governmental interest to justify the disclosure. Reliance on this line of cases is misplaced. In each of the cited cases the party withholding information from a court or public agency made a prima facie showing that disclosure would infringe its First Amendment rights. For example, in NAACP v. Alabama, the NAACP made an “uncontro-verted showing that on past occasions” disclosure of members’ identities “exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.” 357 U.S. at 462, 78 S.Ct. at 1171-72. Similarly, in Bates there was “substantial uncontroverted evidence that public identification of persons ... as members ... had been followed by harassment and threats of bodily harm.” 361 U.S. at 524, 80 S.Ct. at 417. Neither the state’s interest in regulating intrastate business, NAACP v. Alabama, 357 U.S. at 464, 78 S.Ct. at 1172-73, nor the city’s power to impose licensing taxes, Bates, 361 U.S. at 524-25, 80 S.Ct. at 417-18, outweighed the possible encroachment on First Amendment rights. In contrast, Operation Rescue and Terry do not articulate how compliance with plaintiffs’ discovery requests would interfere with their First Amendment activities. They merely assert that plaintiffs cannot identify any compelling interest to be served by compliance. A party resisting discovery need not make a showing of harm or other coercion; but before" }, { "docid": "23589756", "title": "", "text": "process must contain three procedural safeguards (including the two the Fair contends are required here), or else be classified as an unconstitutional prior restraint: “(1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court.” FW/PBS, Inc. v. Dallas, 493 U.S. 215, 227, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality opinion) (citing Freedman, 380 U.S. at 58-60, 85 S.Ct. 734). In FW/PBS, the Court applied the first two of these, safeguards — the ones the Fair argues apply here — to a licensing scheme that, like the Freedman scheme, was content-based (in that it targeted businesses dealing in sexually explicit speech). See Thomas, 534 U.S. at 322 n. 2, 122 S.Ct. 775; - see also Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 801-02, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). This court has applied the same two Freedman safeguards to a licensing scheme specifically targeting adult bookstores. See Baby Tam & Co., Inc. v. City of Las Vegas, 199 F.3d 1111, 1114-15 (9th Cir.2000); Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100-01 (9th Cir.1998). In Thomas v. Chicago Park Disk, however, the Supreme Court clarified that none of the Freedman safeguards are required of content-neutral time, place, and manner permit schemes. 534 U.S. at 320-23, 122 S.Ct. 775. Here, the Oregon Mass Gathering Act is clearly a content-neutral time, place, and manner regulation. The Act applies to all mass gatherings irrespective of the purpose for the gathering. Unlike the statutes at issue in Freedman and the Baby Tam decisions, the Act does not single out any particular activity or speech for regulation. It authorizes the Department of Human Services to promulgate regulations with respect to water supply, fire protection, and similar health and safety issues attendant on overnight gatherings of large" }, { "docid": "77375", "title": "", "text": "DAVID R. THOMPSON, Circuit Judge: Baby Tam & Co., Inc. (“Baby Tam”) sought, and was denied, a Las Vegas business license to operate an adult bookstore. It sued the City of Las Vegas (“City”) under 42 U.S.C. § 1983 seeking a permanent in junction enjoining the City from enforcing the licensing ordinance. Baby Tam alleged that the licensing scheme constituted an unconstitutional prior restraint and suppression of speech in violation of the First and Fourteenth Amendments. The district court denied Baby Tam’s application for a preliminary injunction. Baby Tam appeals that denial. We have jurisdiction under 28 U.S.C. § 1292(a)(1). Because the ordinance fails to provide for prompt judicial review of a license denial, as required by Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) and FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality opinion), the ordinance on its face is a prior restraint of speech which violates the First and Fourteenth Amendments. Accordingly, we reverse the district court’s denial of Baby Tam’s application for a preliminary injunction. Because our resolution of this issue is determinative of the litigation, we remand with instructions to the district court to enter a permanent injunction enjoining enforcement of the ordinance in its present form. FACTS Baby Tam operates its business under the name “Hot Stuff.” Among other items, the store sells sexual novelties, adult videos, general videos, T-shirts, and gag gifts. In January of 1997, Baby Tam sought a business license for Hot Stuff from the City of Las Vegas. In Las Vegas, a business must obtain a license before beginning operations. Las Vegas, Nev. Municipal Code (“L.V.M.C.”) § 6.02.060 (1996). Baby Tam proposed to operate its business at 5100 W. Charleston Boulevard in the City of Las Vegas. This location is within the City’s C — 1 zone. That zone allows the presence of various commercial establishments, but not adult bookstores. L.V.M.C. § 19.74.020(A) (1992). Adult bookstores are permitted in other zones in the City. Under L.V.M.C. § 19.74.020(A), an “adult bookstore” is defined as an" }, { "docid": "3433409", "title": "", "text": "requirement, this was not the narrowest ground for decision). Because we conclude that Justice O'Connor did not modify the second Freedman requirement in the licensing context, we need not decide which ground for decision in FW/PBS was the narrowest. . Baby Tam draws an analogy to baseball. Judicial review without a decision \"would be like throwing a pitch and not getting a call. As legendary major league umpire Bill Klem once said to an inquisitive catcher: 'It ain’t nothin' till I call it.' This is also true of judicial review. Until the judicial officer makes the call, it ain’t nothin'.” 154 F.3d at 1102. . Littleton’s ordinance, for example, lists eight specific reasons to deny a license — although the ordinance does not explicitly state that this list is exclusive — and these reasons do not involve discretion on the part of the licensing official. Littleton, Colo., City Code § 3-14-8. . Analyzing the constitutionality of a permit requirement for a public forum, the Supreme Court has recently held that an ordinance that gives no discretion to the licensing official does not threaten to stifle free expression. See Thomas v. Chi. Park Dist., 534 U.S. 316, 122 S.Ct. 775, 780-81, 151 L.Ed.2d 783 (2002). However, Thomas distinguishes FW/ PBS on the grounds that \"it involved a licensing scheme that targeted] businesses purveying sexually explicit speech,” id. at 780 n. 2 (quotation omitted), and the Court did not overrule its earlier decision that the first two Freedman requirements must be applied in adult-business licensing cases. . In its reply and supplemental briefing, ZJ argued that the location restrictions in Little-ton's ordinance should be viewed as \"content-based” restrictions on speech subject to strict scrutiny. In particular, ZJ argues that the recent Supreme Court decision in Thomas, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002), and Justice Kennedy's opinion in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 1739, 152 L.Ed.2d 670 (2002) (Kennedy, J., concurring in the judgment), support this claim. This court, however, has previously held that a nearly identical ordinance should be" }, { "docid": "14354546", "title": "", "text": "all adult business employees wear an identification card at work. The County says that this requirement permits it to monitor the work force of adult businesses and to ensure that only duly authorized adults work in these enterprises. While corporations reasonably may be obliged to submit detailed business information to obtain a license, the requirement that owners and employees disclose personal information to County officials is more burdensome. The Denton County order requires owners and employees to disclose only their age, recent infractions of certain adult business regulations, and recent convictions for certain sexual offenses. The County says that their information assists in making background checks and preparing identification cards. Compelled content-neutral disclosure of owner and employee information can chill protected expression. See Talley v. California, 362 U.S. 60, 64, 80 S.Ct. 536, 538-39, 4 L.Ed.2d 559 (1960); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461-62, 78 S.Ct. 1163, 1171-72, 2 L.Ed.2d 1488 (1958). This chill could occur even if suppressing particular expression is unintended. NAACP, 357 U.S. at 461, 78 S.Ct. at 1171. We insist that countervailing state interests must further a substantial government interest. Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 656, 46 L.Ed.2d 659 (1975) (per curiam). This protective skirt requires a “relevant correlation” or “substantial relation” between the information required and the government interest. Id. We are persuaded that requiring owners and employees to supply information about their age and certain prior regulatory infractions and sexual offenses substantially relates to the substantial government interest of curtailing pernicious side effects of adult businesses. The Denton County order does not demand comprehensive disclosure of personal information, but only information reflecting ability to function responsibly in the adult business setting. The Seventh and Ninth Circuits have invalidated disclosure requirements. In Genu-sa v. City of Peoria, 619 F.2d 1203 (7th Cir.1980), the court invalidated the required disclosure of past aliases, criminal convictions, and ordinance violations as unrelated to the city’s stated goal of preventing adult businesses from congregating in one location. Id. at 1215-19. In Acorn Investments, Inc. v. City of Seattle, 887 F.2d 219," }, { "docid": "16844762", "title": "", "text": "free speech and associational rights were unconstitutionally infringed by the report requirements because compliance with them would deter membership by employers. The Master Printers court recognized that the Supreme Court had declared unconstitutional compelled disclosure of membership in groups involved in advocacy, such as in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), and that in doing so, the Court held that disclosure laws that significantly encroach on such associational rights must survive exacting scrutiny. The court in Master Printers then set out the analytical framework for testing Master Printers’ claim that the reporting requirements are unconstitutional: [O]ur analysis must focus on four factors: the degree of infringement on first amendment rights; the importance of the governmental interest protected by the Act; whether a “substantial relation” exists between the governmental interest and the information required to be disclosed; and the closeness of the “fit” between the Act and the governmental interest it purports to further. 751 F.2d at 704. This court must weigh these four factors in order to determine whether the burden imposed on HH & M’s exercise of its free speech and associational rights, assuming such a burden exists, is justified by the government’s interest in maintaining antiseptic conditions in the labor relations setting. A. As the Master Printers court stated, “[a] finding of a substantial ‘chill’ on protected first amendment rights requires a showing that the statutory scheme will result in threats, harassment, or reprisals to specific individuals.” Id. at 704 (citing Buckley v. Valeo, 424 U.S. 1, 74, 96 S.Ct. 612, 661, 46 L.Ed.2d 659 (1976)); NAACP, 357 U.S. at 462-63, 78 S.Ct. at 1171-72 (1958). In NAACP, the Court found that the statutorily mandated disclosures of the NAACP’s membership lists were not warranted because the NAACP had “made an uncontroverted showing that on past occasions revelation of the identity of its rank- and-file members ha[d] exposed these members to economic reprisal, loss- of employment, threat of physical coercion and manifestations of public hostility.” NAACP, 357 U.S. at 462, 78 S.Ct. at 1172. In Buckley v. Valeo, the" }, { "docid": "23042836", "title": "", "text": "once in court.” Id. Precisely the same circumstances arise here. In deciding whether to issue a license, the licensor “does not exercise discretion by passing judgment on the content of any protected speech.” Id. at 229, 110 S.Ct. 596. Moreover, “[bjecause the license is the key to the applicant’s obtaining and maintaining a business,” id. at 229-30, 110 S.Ct. 596, Dream Palace has an incentive vigorously to pursue administrative review of an adverse decision. We fail to see why the First Amendment would require the county to bear the burden in administrative review proceedings, but not in court. Requiring the applicant to bear the burden of proof in administrative proceedings is, therefore, valid under the First Amendment. 2 Second, Dream Palace argues that the ordinance fails to comply with the second of the FW/PBS requirements: that there be “the possibility of prompt judicial review.” FW/PBS, 493 U.S. at 228, 110 S.Ct. 596. a Dream Palace originally rested this argument on our holding in Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097 (9th Cir.1998) (“Baby Tam I”), that an adult business could not be subjected to a content-based licensing regime where “[tjhere is no provision that a judicial hearing must be had or a decision must be rendered within a prescribed period of time.” Id. at 1101. Baby Tam I, however, is no longer good law after the Supreme Court’s decision in City of Littleton v. Z.J. Gifts D-4, L.L.C., — U.S. -, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004). That case, decided after the parties’ initial briefing in this case, now provides the framework for analyzing the judicial-review provision of Ordinance P-10. The Supreme Court’s opinion in City of Littleton makes clear that the FW/PBS requirement of “prompt judicial review” must be read “as encompassing a prompt judicial decision.” Id. at 2224. In other words, the First Amendment requires that an adult business subject to a licensing scheme not only have prompt access to the courts in the event the license is denied, but also receive a prompt decision from the courts on the legitimacy" }, { "docid": "77377", "title": "", "text": "establishment “having at least fifty-one percent of its stock in trade books, film, magazines, and other periodicals which are distinguished or characterized by an emphasis on depicting or describing sexual conduct or specified anatomical areas.” On its application for a business license, Baby Tam stated that 30% of its merchandise would be adult videos. Based on that application, the City issued a 60-day temporary bookstore license which enabled Hot Stuff to begin operations. After the temporary license expired, the City issued another temporary license. In all, Baby Tam received four temporary licenses. Under the temporary license provision of the City’s licensing ordinance, a business may receive a maximum of only three temporary licenses. L.V.M.C. § 6.02.070(D). Baby Tam never received a permanent license. Before the final temporary license expired, the City conducted an audit of the Hot Stuff store’s inventory to determine what percentage of it consisted of adult material. According to the results of that audit, the store’s adult inventory exceeded the 51% threshold proscribed by the zoning ordinance. The City ordered Baby Tam to cease operations at the Charleston Boulevard location by October 29,1997. On October 28, Baby Tam filed suit against the City in the district court seeking to enjoin the City from enforcing the ordinance. Baby Tam alleged that the City’s bookstore licensing and zoning ordinance was an unconstitutional prior restraint, in violation of the First and Fourteenth Amendments. Baby Tam also alleged that the amendment to the zoning ordinance, which added sexual novelties to the classification of “sexual material,” suppressed Baby Tam’s speech in violation of the First and Fourteenth Amendments. The district court denied Baby Tam’s motion for a preliminary injunction, and this appeal followed. DISCUSSION To obtain a preliminary injunction, a party must establish either: (1) probable success on the merits and irreparable injury, or (2) sufficiently serious questions going to the merits to make the case a fair ground for litigation with the balance of hardships tipping decidedly in its favor. Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1528 (9th Cir.1993). “These two formulations represent two points on" }, { "docid": "77380", "title": "", "text": "when the legislation allegedly vests government officials with unbridled discretion. The rationale is that “every application of the statute create[s] an impermissible risk of suppression of ideas.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 n. 15, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). A facial challenge is also appropriate when there is a lack of adequate procedural safeguards necessary to ensure against undue suppression of protected speech. FW/PBS, 493 U.S. at 223-24, 110 S.Ct. 596. Because, according to Baby Tam, the licensing/zoning ordinance vests the City with “unbridled discretion” to deny a license, and because the ordinance lacks constitutionally required procedural safeguards, Baby Tam has standing to assert its facial challenge. In making this challenge, it contends the City’s licensing and zoning ordinance is an unconstitutional prior restraint of speech. A prior restraint exists when the enjoyment of protected expression is contingent upon the approval of government officials. Near v. Minnesota, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Because L.V.M.C. § 6.06A.015 requires all proposed bookstores to apply for and obtain a license before engaging in business, the City’s licensing scheme is properly analyzed as a prior restraint. Although prior restraints are not unconstitutional per se, the Supreme Court has repeatedly stated that “[a]ny system of prior restraint” bears “a heavy presumption against its constitutional validity.” FW/PBS, 493 U.S. at 225, 110 S.Ct. 596 (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975)); Freedman, 380 U.S. at 57, 85 S.Ct. 734; Vance v. Universal Amusement Co., 445 U.S. 308, 315-16, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980). It is well established that, to pass constitutional muster, a legislative prior restraint must contain certain procedural safeguards. FW/PBS, 493 U.S. at 228, 110 S.Ct. 596; Freedman, 380 U.S. at 58-59, 85 S.Ct. 734. A decision to issue or deny a license must be made within a brief, specified and reasonably prompt period of time. FW/PBS, 493 U.S. at 226, 110 S.Ct. 696; Freedman, 380 U.S at 59, 85 S.Ct. 734. Promptness is essential because" } ]

[ { "docid": "22756183", "title": "", "text": "on certain speakers based on the content of their expression. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 115 (1991). When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. See R. A. V. v. St. Paul, 505 U. S. 377, 391 (1992). Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. See Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 46 (1983). These principles provide the framework forbidding the State to exercise viewpoint discrimination, even when the limited public forum is one of its own creation. In a case involving a school district’s provision of school facilities for private uses, we declared that “[tjhere is no question that the District, like the private owner of property, may legally preserve the property under its control for the use to which it is dedicated.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 390 (1993). The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics. See, e. g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985); Perry Ed. Assn., supra, at 49. Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not “reasonable in light of the purpose served by the forum,” Cornelius, supra, at 804-806; see also Perry Ed. Assn., supra, at 46, 49, nor may it discriminate against speech on the basis of its viewpoint, Lamb’s Chapel, supra, at 392-393; see also Perry Ed. Assn., supra, at 46; R. A. V., supra, at 386-388, 391-393; cf. Texas" } ]

[ { "docid": "14298301", "title": "", "text": "furthers the state’s interest in preventing potential discipline against innocent peace officers. Nevertheless, following both R.A.V. and Black, we must determine whether California Penal Code section 148.6 violates the First Amendment’s core requirement of viewpoint neutrality even though the statute regulates otherwise unprotected speech. See Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 282 n. 12 (2d Cir.1997) (“R.A.V. provides that the First Amendment’s prohibition against viewpoint discrimination applies to both protected and unprotected speech.”). This requires us to consider whether the statute “regulate[s] speech in ways that favor[s] some viewpoints or ideas at the expense of others.” Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). Stated differently, our task is to determine whether “the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). We also find instructive nonpublic forum cases in which the Supreme Court has repeatedly reminded us that “the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). We begin our analysis by recognizing that a knowingly false assertion made by a peace officer or witness in support of a peace officer during the course of a misconduct investigation, like a knowingly false complaint of misconduct, is equally “at odds with the premises of democratic government.” Garrison, 379 U.S. at 75, 85 S.Ct. 209. In most cases, “it inevitably will come down to the word of the citizen against the word of the police officer or officers, in which case law enforcement authorities will conduct an investigation to determine who is telling the truth.” Stanistreet, 29 Cal.4th at 513-14, 127 Cal.Rptr.2d 633, 58" }, { "docid": "7001167", "title": "", "text": "be advanced by granting preliminary relief.” Overstreet v. United Bhd. of Carpenters & Joiners, Local Union No. 1506, 409 F.3d 1199, 1207 (9th Cir.2005). 1. Building 3S1 is a Nonpublic Forum Plaintiffs contend that VA regulation 38 C.F.R. § 1.218 violates their First Amendment right to free expression on government property. In order to assess their claim, we first must “identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Public property, depending on its character, falls within one of three main categories for purposes of First Amendment analysis. Public fora are places, such as streets and parks, that have traditionally been devoted to expressive activity. Perry Educ. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Content-based restrictions in public fora are justified only if they serve a compelling state interest that is narrowly tailored to the desired end. Id. Designated public fora are areas that the government affirmatively has opened to expressive activity, and exclusion from these fora must also satisfy strict scrutiny. Id. at 45-46, 103 S.Ct. 948. Nonpublic fora, areas that have not traditionally or explicitly been open to expressive activity, are subject to a more lenient standard. Id. at 46, 103 S.Ct. 948. Content-based restrictions in nonpublic fora need only be “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Id. With that background, we must classify Building 331. Plaintiffs con tend that Building 331 is a designated public forum because the VA itself characterizes the lobby and entrance ways as “public” and because the building acts as a home for veterans. In a written guideline regarding partisan activity, the VA has characterized the grounds, entrances, and lobbies of VA premises as “public areas.” Campaigning and Other Partisan Political Activities on VA Premises: Guidelines. But the VA’s reference to “public areas” does not automatically transform" }, { "docid": "8498902", "title": "", "text": "disorderly.” The sum of Wayne County’s counterargument to the charge that the Bible Believers’ expulsion was motivated by the views they espoused is merely that the WCSO Operations Plan was content-neutral, and that the WCSO’s only consideration was maintaining the public safety. This contention fails in the face of abundant evidence that the police have effectuated a heckler’s veto. It is irrelevant whether the Operations Plan is content-neutral because the officers enforcing it are ordained with broad discretion to determine, based on listener reaction, that a particular expressive activity is creating a public danger. Cf. Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 97, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (“[B]ecause of then-potential use as instruments for selectively suppressing some points of view, this Court has condemned licensing schemes that lodge broad discretion in a public official to permit speech-related activity.”); see also Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cty. Sheriff Dep’t, 533 F.3d 780, 787 (9th Cir.2008) (“If the statute, as read by the police officers on the scene, would allow or disallow speech depending on the reaction of the audience, then the ordinance would run afoul of an independent species of prohibitions on content-restrictive regulations, often described as a First Amendment-based ban on the ‘heckler’s veto.’ ” (citing Bachellar v. Maryland, 397 U.S. 564, 567, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970))). C. The Heckler’s Veto and Police Obligations It is a fundamental precept of the First Amendment that the government cannot favor the rights of one private speaker over those of another. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). Accordingly, content-based restrictions on constitutionally protected speech are anathema to the First Amendment and are deemed “presumptively invalid.” Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 853, 358, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009). An especially “egregious” form of content-based discrimination is that which is designed to exclude a particular point of view from the marketplace of ideas. Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510; Perry Educ. Ass’n, 460 U.S. at" }, { "docid": "12536865", "title": "", "text": "92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). Other principles follow from this precept. In the realm of private speech or expression, government regulation may not favor one speaker over another. Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 2128, 80 L.Ed.2d 772 (1984). Discrimination against speech because of its message is presumed to be unconstitutional. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641-643, 114 S.Ct. 2445, 2458-2460, 129 L.Ed.2d 497 (1994). These rules informed our determination that the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 112 S.Ct. 501, 507-508, 116 L.Ed.2d 476 (1991). When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. See R.A.V. v. St. Paul, 505 U.S. 377, 391, 112 S.Ct. 2538, 2547, 120 L.Ed.2d 305 (1992). Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. See Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983). Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 828-29, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). “These principles,” the Court continues, “provide the framework forbidding the State from exercising viewpoint discrimination, even when the limited public forum is one of its own creation.” Id. at 829, 115 S.Ct. 2510. Moreover, where viewpoint discrimination has been alleged, it matters little whether the forum may be character ized as a limited public forum or as a nonpublic forum because even “nonpublic forum status ‘does not mean that the government can restrict speech in whatever way it likes.’...” Forbes, 523 U.S. at 682, 118 S.Ct. 1633 (quoting International Society for Krishna" }, { "docid": "21443987", "title": "", "text": "based on the speaker’s viewpoint. 1. The Forum Where the government seeks to restrict speech by restricting access to its own property, as it does here, the kind of scrutiny to which we subject the restriction depends on how we categorize the property as a forum for speech. See International Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678-79, 112 S.Ct. 2701, 2705, 120 L.Ed.2d 541 (1992); United States v. Kokinda, 497 U.S. 720, 726, 110 S.Ct. 3115, 3119, 111 L.Ed.2d 571 (1990) (plurality opinion); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 944-955, 74 L.Ed.2d 794 (1983); see also Lehman v. City of Shaker Heights, 418 U.S. 298, 302-03, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974). The Supreme Court has created three categories of government property, and announced standards for reviewing government restriction of speech according to those categories. See Perry, 460 U.S. at 45-46, 103 S.Ct. at 954-55. A traditional public forum is one that “ ‘by long tradition or by government fiat ha[s] been devoted to assembly and debate.’ ” General Media Communications, Inc. v. Cohen, 131 F.3d 273, 278 (2d Cir.1997) (quoting Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449 (internal citation omitted)). The second kind of public forum is the designated public forum, a place the government has opened for use by the public for expressive activity. Id. at 278-79 (citing Perry, 460 U.S. at 45, 103 S.Ct. at 955). In both traditional public fora and designated public fora, content-based regulations survive only if “narrowly drawn to achieve a compelling [governmental] interest.” Id. at 278 (citing Lee, 505 U.S, at 678, 112 S.Ct. at 2705). All remaining government property constitutes a non-public forum. The government may limit speech in a non-public forum if the limitation is reasonable, and not based on the speaker’s viewpoint. Perry, 460 U.S. at 46, 103 S.Ct. at 955; Lee, 505 U.S. at 678-79, 112 S.Ct. at 2705. No" }, { "docid": "12305896", "title": "", "text": "16 L.Ed. 2d 484 (1966)). Moreover, the First Amendment protects the media’s right to gather news. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576, 100 S.Ct. 2814, 2827, 65 L.Ed.2d 973 (1980) (“Free speech carries with it some freedom to listen.”); Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972) (“[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated.”); see also In re Express News Corp., 695 F.2d 807 (5th Cir.1982); United States v. Sherman, 581 F.2d 1358 (9th Cir.1978). Exit polling is thus speech that is protected, on several levels, by the First Amendment. The state may regulate exit polling only in limited ways. The standard we use to determine whether the regulation is constitutional depends on whether the speech to be regulated occurs in a traditional public forum, see Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 3446, 87 L.Ed. 2d 567 (1985), and whether the statute is content-based or amounts to an absolute prohibition of a type of speech, see United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983). The public areas within 300 feet of the entrance to the polling place are traditional public forums because they traditionally are open to the public for expressive purposes, including random interviews by reporters, and encompass streets and sidewalks. See Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). The statute is content-based because it regulates a specific subject matter, the discussion of voting, see Consolidated Edison Co. of New York v. Public Service Commission, 447 U.S. 530, 537, 100 S.Ct. 2326, 2333, 65 L.Ed.2d 319 (1980), and a certain category of speakers, exit pollsters, see Widmar v. Vincent, 454 U.S. 263, 267-70, 102 S.Ct. 269, 273-74, 70 L.Ed.2d 440 (1981). A content-based statute that regulates speech in a public forum is constitutional only if it is narrowly tailored to accomplish a compelling government interest, Consolidated Edison Co.," }, { "docid": "12536866", "title": "", "text": "2547, 120 L.Ed.2d 305 (1992). Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. See Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983). Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 828-29, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). “These principles,” the Court continues, “provide the framework forbidding the State from exercising viewpoint discrimination, even when the limited public forum is one of its own creation.” Id. at 829, 115 S.Ct. 2510. Moreover, where viewpoint discrimination has been alleged, it matters little whether the forum may be character ized as a limited public forum or as a nonpublic forum because even “nonpublic forum status ‘does not mean that the government can restrict speech in whatever way it likes.’...” Forbes, 523 U.S. at 682, 118 S.Ct. 1633 (quoting International Society for Krishna Consciousness v. Lee, 505 U.S. at 687, 112 S.Ct. 2701 (O’Connor, J. concurring)) (citation omitted). “To be consistent with the First Amendment, the exclusion of a speaker from a nonpublic forum must not be based on the speaker’s vietvpoint and must otherwise be reasonable in light of the purpose of the property.” Id. (emphasis added) (citing Cornelius, 473 U.S. at 800, 105 S.Ct. 3439). Plaintiffs’ claims raise the question whether as a result of defendants’ conduct, plaintiffs have been excluded from the forum for student groups at East and West High Schools because of their viewpoint, asking yet again the question raised earlier in this opinion: what is the permissible subject matter of the forum for student groups at East and West High Schools? To be actionable, the viewpoint allegedly excluded must itself be germane to the permissible subject matter of the forum: [I]n determining whether the State is acting to preserve the limits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a" }, { "docid": "14483523", "title": "", "text": "written policy, standing alone, is not sufficient to support Willis’s vagueness claim. See Families Achieving Independence & Respect v. Nebraska Dep’t of Soc. Servs., 111 F.3d 1408, 1415 (8th Cir.1997) (en banc) (explaining that a governmental policy is not automatically \"vague because it is unwritten. So long as a policy is made explicit by well-established practice, the fact that a policy is not committed to writing does not of itself constitute a First Amendment violation.” (citation and internal quotation marks omitted)); accord Lebron v. National R.R. Passenger Corp. (Amtrak), 69 F.3d 650, 658 (2d Cir.1995). . As Willis notes in her brief, the vagueness doctrine has some application in the Due Process context as well as the First Amendment context. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). As we will explain later, however, we reject Willis's due process arguments on grounds unrelated to the asserted vagueness of the Town’s policy. . The Town filed its motion to dismiss before a scheduling order was entered and thus before the parties conferred as required by Rule 26(f) of the Federal Rules of Civil Procedure, and no conference was held before the district court converted the motion to one for summary judgment. Accordingly, this case was dismissed before the parties were ever authorized to begin conducting discovery. See Fed. R.Civ.P. 26(d) (“Except in categories of proceedings exempted from initial disclosure under Rule 26(a)(1)(E), ..., a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)....'). . In the context of a First Amendment claim, the phrase “public forum” is a term of art, as are \"limited public forum,” designated “public forum,” and \"non-public forum.” See, e.g., Perry Educ. Assoc. v. Perry Local Educators’ Assoc., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). By referring to the Depot here as a public forum, we use that phrase in a more colloquial sense, to mean" }, { "docid": "8620028", "title": "", "text": "court found in Surita’s favor on the first theory and did not address the second. The First Amendment permits government to regulate use of its property in certain instances depending on the nature of that property. Traditional public forums are places with a long history of being devoted to assembly and debate, such as public streets and parks. Designated public forums are locations or channels of communication that the government opens up for use by the public for expressive activity. Public property not open for public communication by tradition or designation is deemed a nonpublic forum. Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Christian Legal Soc’y v. Walker, 453 F.3d 853, 865 (7th Cir.2006). A designated public forum is created when the government intentionally makes property or a channel of communication generally open or available to a class of speakers rather than permitting only selective access to particular speakers who must obtain permission to use it. Ark. Educ. Television Comm’n, 523 U.S. at 678-79, 118 S.Ct. 1633. There is no doubt that audience time during Waukegan city council meetings constituted a designated public forum. See, e.g., City of Madison Joint Sch. Dist. No. 8 v. Wis. Emp’t Relations Comm’n, 429 U.S. 167, 176, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) (“[W]hen the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of ... their speech.”); Mesa v. White, 197 F.3d 1041, 1044 (10th Cir.1999) (noting a lack of dispute regarding whether the public comment period of a county commission meeting was a designated public forum); White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir.1990) (“City Council meetings like Norwalk’s, where the public is afforded the opportunity to address the Council," }, { "docid": "3669849", "title": "", "text": "be engaged in or performed.” It would be difficult indeed to interpret this language as applying only to incitement of imminent lawless action as the Attorney General suggests. The speech at issue clearly implicates the First Amendment. Therefore, we consider whether Alabama may enforce § 16-1-28 consistent with constitutional principles. 2. § 16-1-28 Constitutes Viewpoint Discrimination The government’s power to restrict First Amendment activities depends on “the nature of the relevant forum.” Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 800, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985); Ethredge v. Hail, 56 F.3d 1324, 1326-27 (11th Cir.1995). The Supreme Court has recognized three types of forums: nonpublic forums, traditional public forums, and limited public forums. See, e.g., Perry Educ. Assoc. v. Perry Local Educators’ Assoc., 460 U.S. 37, 45-46, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983); Searcey v. Hards, 888 F.2d 1314, 1318-19 (11th Cir.1989). Nonpublic forums are areas that are not traditionally public forums and that the government has not opened for public use. Perry, 460 U.S. at 46, 103 S.Ct. at 955-56. For example, military bases and prisons are nonpublic forums. The government’s power to regulate speech is strongest in these areas. M.N.C. of Hinesville v. U.S. Dept. of Defense, 791 F.2d 1466, 1472 (11th Cir.1986). Traditional public forums are areas such as streets and parks. Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939). The government’s power to limit speech is weakest in these areas. Perry, 460 U.S. at 45, 103 S.Ct. at 954-55. Limited public forums are those areas .that the government has created for use by the public as places for expressive activity. Perry, 460 U.S. at 45, 103 S.Ct. at 954-55. Although the government is not required to create such forums, once it does so the Constitution constrains its power to regulate speech within the forum. M.N.C. of Hinesville, 791 F.2d at 1472. The Supreme Court’s recent decision in Rosenberger v. Rector & Visitors of the Univ. of Virginia, — U.S.-, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), makes clear that USA’s system" }, { "docid": "12275488", "title": "", "text": "Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 46 n. 7, 103 S.Ct. 948, 955 n. 7, 74 L.Ed.2d 794 (1983) (A designated public forum “may be created for a limited purpose such as use by certain groups.”); Calash v. City of Bridgeport, 788 F.2d 80, 84 (2d Cir.1986) (“[A] public forum can be created for use only by cer tain speakers or for discussion of certain topics.”); Deeper Life Christian Fellowship, Inc. v. Board of Education, 852 F.2d 676, 680 (2d Cir.1988) (same). Thus, the TA never intended to designate sections of the subway system, including platforms and mezzanines, as a place for begging and panhandling. Nor does the amended regulation abrogate our holding in Gannett Satellite that the subway system is not a traditional or designated public forum. The amended regulation demonstrates the TA’s concern to safeguard the system and to honor the First Amendment. Confronted with the district court’s holding, a cynic might remind the TA that “no good deed goes unpunished.” E. N.Y. Penal Law § £40.35(1) We now turn our attention to the district court’s conclusion that N.Y. Penal Law § 240.35(1) violates the due process clause of the New York State Constitution. The district court reached the conclusion solely on the basis of its interpretation of several New York State cases, relying in particular on a recent opinion of the New York Court of Appeals, People v. Bright, supra. Our primary concern is whether consideration of this issue was properly within the district court’s jurisdiction. The question of whether the court properly exercised jurisdiction may be raised by this Court, itself, at any stage of the proceedings. Manway Construction Co. v. Housing Authority of Hartford, 711 F.2d 501, 503 (2d Cir.1983). First, we are doubtful that plaintiffs have alleged an actual “case or controversy,” as required by Article III of the United States Constitution. See City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 1664, 75 L.Ed.2d 675 (1983); Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 297-98, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895" }, { "docid": "17420771", "title": "", "text": "is a mandatory first step in deciding a First Amendment case such as the present one because “[t]he extent to which the government can control access depends on the nature of the relevant forum.” Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 800 [105 S.Ct. 3439, 87 L.Ed.2d 567] (1985). Both the protection provided for the plaintiffs First Amendment expression and the government’s ability to restrict the plaintiffs speech vary according to the forum in which the speech is proposed. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44-46 [103 S.Ct. 948, 74 L.Ed.2d 794] (1983). A reviewing court’s first action, therefore, must be to conduct a “deliberate analysis, e.g., Chicago Acorn v. Metro. Pier & Expo. Auth., 150 F.3d 695, 702 (7th Cir.1998)” and determine “the nature of the forum first.” New Eng. Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 20 n. 4 (1st Cir.2002). In Kinton, this Court specifically rejected as “awkward” skipping this crucial forum analysis as a first step “because it requires a reviewing tribunal to know the results of a test before knowing which test applies.” Id. Because the MBTA has created a designated public forum, it argues, “a content-based prohibition must be narrowly drawn to effectuate a compelling state interest,” and the MBTA has violated these standards. In addition, Change the Climate argues, no matter what the nature of the forum, the MBTA’s rejection of its ads constitutes viewpoint discrimination. It also argues that the guidelines under which the ads were rejected must be narrow and objective and cannot leave excessive discretion in state officials, and the MBTA guidelines do not comply. Finally, Change the Climate argues the district court erred in not awarding it attorney’s fees. Lischen Ridley filed suit in state court on January 8, 2002, on behalf of herself and other members of the Church with the Good News (“Good News”). The MBTA removed the Ridley action to federal court. The suit alleged that the MBTA lacked compelling reasons to reject the advertisement, that the rejection of the advertisement was the product of" }, { "docid": "2776019", "title": "", "text": "(“UVA”) to fund a religiously oriented student newspaper through the school’s Student Activities Fund (“SAF”), while funding a wide variety of other student groups and publications through SAF, also constituted viewpoint discrimination. 515 U.S. at 829-31, 115 S.Ct. at 2517. By denying funding to publications because they “primarily promot[e] or manifest] a particular belie[f] in or about a deity or an ultimate reality,” id. at 836, 115 S.Ct. at 2520, UVA “required public officials to scan and interpret student publications to discern their underlying philosophic assumptions respecting religious theory and belief,” id. at 845, 115 S.Ct. at 2525. This contravened the Free Speech Clause because “[t]he Government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Id. at 829, 115 S.Ct. at 2516 (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983)). Such viewpoint discrimination “is presumed impermissible when directed against speech otherwise within the forum’s limitations.” Id. at 830, 115 S.Ct. at 2517 (citing Perry, 460 U.S. at 46, 103 S.Ct. at 955). Significantly for our purposes here, the Court expressly rejected the dissent’s view that UVA could constitutionally undertake to distinguish between “works characterized by the evangelism of [the student newspaper] and writing that merely happens to express views that a given religion might approve,” id. at 896, 115 S.Ct. at 2550 (Souter, J., dissenting). See id. at 843-45, 115 S.Ct. at 2524 (majority opinion). The Court observed that “[w]ere the dissent’s view to become law it would require the University ... to scrutinize the content of student speech, lest the expression in question ... contain too great a religious content.... That eventually raises the specter of governmental censorship, to ensure that all student writings and publications meet some baseline standard of secular orthodoxy.” Id. As in Lamb’s Chapel, the Court in Rosenberger discerned no Establishment Clause defense for UVA’s restriction on religious speech. The Court cited numerous cases firmly providing that the Establishment Clause does not bar the government from" }, { "docid": "3946747", "title": "", "text": "384, 390, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); Christ’s Bride, 148 F.3d at 247. Where, however, the property at issue is a traditional public forum or a forum designed as public by the government,‘the First Amendment hinders the government’s ability to restrict speech. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Christ’s Bride, 148 F.3d at 247. A limited public forum — a subcategory of the designated public forum — “is created when the government opens a nonpublic forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain kinds of subjects.” Kreimer v. Bureau of Police, 958 F.2d 1242, 1246-1247 (3d Cir.1992) (citation omitted). Donovan and Appellees agree that the PAHS activity period is a limited public forum, and we will treat the period as such. Although the government may indeed restrict the limited public forum to certain subjects and certain speakers, the government “may not discriminate against speech on the basis of viewpoint, and the restriction must be reasonable in light of the purpose served by the forum.” Good News Club v. Milford Cent Sch., 533 U.S. 98, 106-107, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). With regard to viewpoint restrictions, “speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the, subject is discussed from a religious viewpoint.” Id. at 112, 121 S.Ct. 2093; see also Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (holding that a university engaged in improper viewpoint discrimination when it denied student activities funds to a student magazine addressing public policy issues from a Christian perspective); Lamb’s Chapel v. Moriches Union Free Sch. Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (holding that a school’s refusal to permit an organization access to school facilities at night to show a film about family issues from a religious perspective constituted impermissible viewpoint discrimination). FISH is a group that discusses current issues from a biblical" }, { "docid": "8611229", "title": "", "text": "of content discrimination,’ and occurs when ‘the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction [on speech].’ ” (quoting Truth v. Kent Sch. Dist. 542 F.3d 634, 649-50 (9th Cir.2008), overruled on other grounds, L.A. Cnty. v. Humphries, — U.S. -, 131 S.Ct. 447, 450-51, 178 L.Ed.2d 460 (2010))) (alterations in original). By its terms, Ordinance 7 does not limit access based on viewpoint, nor does it even address viewpoint. Instead, it limits access exclusively based on property ownership or occupancy, as required by the restrictive covenant. Similarly, Policy 136 does not limit speech at the beaches based on the ideology, opinion, or perspective of persons seeking access for expression. The only limitation on speech is that the beaches may, under the restrictive covenant, be used only for recreational purposes. The clear purpose of Policy 136 is to honor that requirement. Therefore, Policy 136 does not discriminate based on viewpoint to the extent it limits speech at the beaches. See Alpha Delta Chi-Delta Chapter, 648 F.3d at 800. Wright also appears to contend that Policy 136 is unconstitutional under the First Amendment because it restricts speech in designated public forum areas. He is mis taken. Policy 136 expressly designates certain non-beach areas within the 1968 property as public fora, available to any individual or group for purposes of expression, speech, and assembly. Any restrictions on speech within such a designated area “are subject to strict scrutiny and, therefore, ‘must be narrowly tailored to serve a compelling government interest.’ ” Alpha Delta Chi-Delta Chapter, 648 F.3d at 797 (quoting Christian Legal Soc’y, 130 S.Ct. at 2984 n. 11). However, all restrictions on activities in the designated public forum areas of the 1968 property meet that standard, and thus violate no constitutional requirements. Because Ordinance 7 and Policy 136 are reasonable in light of the purpose of the forum and are viewpoint neutral, they do not violate the First Amendment. See id. at 798 (citation omitted). Because the policies are constitutional as applied to Wright, they also are not facially unconstitutional. B. Equal" }, { "docid": "12275487", "title": "", "text": "evidence of a contrary intent, ... nor will we infer that the government intended to create a public forum when the nature of the property is inconsistent with expressive activity.” Id. at 803, 105 S.Ct. at 3449. Moreover, “[i]n cases where the principal function of the property would be disrupted by expressive activity, the Court is particularly reluctant to hold that the government intended to designate a public forum.” Id. at 804, 105 S.Ct. at 3450. In the face of Operation Enforcement, there can be no doubt that the TA intended to continue its long-standing prohibition of begging and panhandling even after revising the regulation to permit solicitation by organizations. Further, it is permissible for the TA to limit solicitation in the subway system to organizations. “[A] public forum may be created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects. Id. at 802, 105 S.Ct. at 3449 (emphasis added); see Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 46 n. 7, 103 S.Ct. 948, 955 n. 7, 74 L.Ed.2d 794 (1983) (A designated public forum “may be created for a limited purpose such as use by certain groups.”); Calash v. City of Bridgeport, 788 F.2d 80, 84 (2d Cir.1986) (“[A] public forum can be created for use only by cer tain speakers or for discussion of certain topics.”); Deeper Life Christian Fellowship, Inc. v. Board of Education, 852 F.2d 676, 680 (2d Cir.1988) (same). Thus, the TA never intended to designate sections of the subway system, including platforms and mezzanines, as a place for begging and panhandling. Nor does the amended regulation abrogate our holding in Gannett Satellite that the subway system is not a traditional or designated public forum. The amended regulation demonstrates the TA’s concern to safeguard the system and to honor the First Amendment. Confronted with the district court’s holding, a cynic might remind the TA that “no good deed goes unpunished.” E. N.Y. Penal Law § £40.35(1) We" }, { "docid": "16922644", "title": "", "text": "on the theory that he was completely deprived of a forum for his speech. Rather, he argues that Sylvester denied him access to a forum to which he was entitled. The fact that another forum was made available to Giebel simply has no relevance to the First Amendment issue posed here: whether Sylvester was justified in preventing Giebel from communicating with the university community in the manner he did by posting handbills on what Giebel asserts is a public forum — the university’s bulletin boards. When the government opens a forum to the public and does not “consistently enforce[ ] ... restrictions on the use of the forum,” it creates a designated public forum. Hopper v. City of Pasco, 241 F.3d 1067, 1075 (9th Cir.2001). In such a forum, a state is bound by the same First Amendment limitations that apply in traditional public fora, such as streets and public parks. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Here, Giebel has put forth uncontradicted evidence that the university’s bulletin boards are available for use by the public, including persons not affiliated with the university, “to communicate with students and others at the University.” His evidence shows that the university has no policy or practice of regulating the content of the materials placed on university bulletin boards. Accordingly, we conclude that the university’s bulletin boards are á designated public forum. In general, the extent of the protection afforded by the First Amendment in designated public fora depends on whether the suppression of the speech is on the basis of the “viewpoint” expressed by the speech or the “content” of the speech. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829-30, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). “Content discrimination” occurs when the government “choos[es] the subjects” that may be discussed, while “viewpoint discrimination” occurs when the government prohibits “speech by particular speakers,” thereby suppressing a particular view about a subject. See Perry, 460 U.S. at 59, 103 S.Ct. 948 (Brennan, J., dissenting). In" }, { "docid": "3669848", "title": "", "text": "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 be engaged in or performed.” It would be difficult indeed to interpret this language as applying only to incitement of imminent lawless action as the Attorney General suggests. The speech at issue clearly implicates the First Amendment. Therefore, we consider whether Alabama may enforce § 16-1-28 consistent with constitutional principles. 2. § 16-1-28 Constitutes Viewpoint Discrimination The government’s power to restrict First Amendment activities depends on “the nature of the relevant forum.” Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 800, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985); Ethredge v. Hail, 56 F.3d 1324, 1326-27 (11th Cir.1995). The Supreme Court has recognized three types of forums: nonpublic forums, traditional public forums, and limited public forums. See, e.g., Perry Educ. Assoc. v. Perry Local Educators’ Assoc., 460 U.S. 37, 45-46, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983); Searcey v. Hards, 888 F.2d 1314, 1318-19 (11th Cir.1989). Nonpublic forums are areas that are not traditionally public forums and that the government has not opened for public use. Perry, 460 U.S. at 46," }, { "docid": "23480628", "title": "", "text": "Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1131 (10th Cir.2002) (full citation provided). Awareness of contemporary threats to speech must inform our jurisprudence regarding public forums. A. The Supreme Court has constructed an analytical framework known as “forum analysis” for evaluating First Amendment claims relating to speech on government property. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); see also Cornelius v. NAACP, 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Under this approach, we first determine whether the property is a traditional public forum, a designated public forum, or a nonpublic forum in order to ascertain what level of scrutiny to apply to restrictions on speech. Perry, 460 U.S. at 45-46, 103 S.Ct. 948. Following this determination, we apply the indicated standard of scrutiny to decide whether the restrictions in question pass constitutional muster. Id. Thus, the scope of permissible governmental interference with expressive activity varies depending upon the nature of the location in which speech is to take place. Id. at 44, 103 S.Ct. 948. Despite considerable criticism, the Supreme Court has not retreated from its embrace of the forum method of analyzing restrictions on speech. See Hotel Employees & Rest Employees Union, Local 100 v. City of New York Dep’t of Parks & Recreation (H.E.R.E. v. City of New York), 311 F.3d 534, 546 n. 8 (2d Cir.2002). The ability to restrict speech in public forums, whether traditional public forums or designated public forums, is “sharply circumscribed.” Perry, 460 U.S. at 45, 103 S.Ct. 948; see also Grossman v. City of Portland, 33 F.3d 1200, 1204 (9th Cir.1994) (“Public fora have achieved a special status in our law; the government must bear an extraordinarily heavy burden to regulate speech in such locales.” (quoting NAACP v. City of Richmond, 743 F.2d 1346, 1355 (9th Cir.1984)) (alteration omitted)). In [a public forum], the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest" }, { "docid": "8611228", "title": "", "text": "the general public are reasonable in light of the forum’s purpose. IVGID is subject to a restrictive covenant requiring it to limit access to the beaches to owners and tenants of the 1968 property, and that the beaches be used for recreational purposes only. Allowing Wright and other members of the general public to access the beaches for expressive, non-reereational purposes would violate the restrictive covenant in two ways: (1) by permitting ineligible persons to access the beaches, and (2) by permitting the beaches to be used for non-recreational purposes. ii. Viewpoint neutrality Ordinance 7 and Policy 136 are viewpoint neutral. See Alpha Delta Chi-Delta Chapter, 648 F.3d at 800 (“[A] restriction that ‘serves purposes unrelated to the content of expression’ and only incidentally burdens some speakers, messages, or viewpoints ‘is deemed neutral.’ ” (quoting Christian Legal Soc’y, 130 S.Ct. at 2994)). Ordinance 7’s exclusion of certain persons from the beaches has nothing to do with the ideology, opinion, or perspective of persons seeking access. See id. (“ Viewpoint discrimination is ... an egregious form of content discrimination,’ and occurs when ‘the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction [on speech].’ ” (quoting Truth v. Kent Sch. Dist. 542 F.3d 634, 649-50 (9th Cir.2008), overruled on other grounds, L.A. Cnty. v. Humphries, — U.S. -, 131 S.Ct. 447, 450-51, 178 L.Ed.2d 460 (2010))) (alterations in original). By its terms, Ordinance 7 does not limit access based on viewpoint, nor does it even address viewpoint. Instead, it limits access exclusively based on property ownership or occupancy, as required by the restrictive covenant. Similarly, Policy 136 does not limit speech at the beaches based on the ideology, opinion, or perspective of persons seeking access for expression. The only limitation on speech is that the beaches may, under the restrictive covenant, be used only for recreational purposes. The clear purpose of Policy 136 is to honor that requirement. Therefore, Policy 136 does not discriminate based on viewpoint to the extent it limits speech at the beaches. See Alpha Delta Chi-Delta Chapter, 648 F.3d" } ]

[ { "docid": "10558776", "title": "", "text": "annexed to Gund-rum Aff. On January 20, 1989, the Court issued an opinion granting plaintiffs’ motion for summary judgment on their common law tres pass claim and on their 42 U.S.C. § 1985(3) federal cause of action and permanently-enjoining Operation Rescue and its participants from blocking ingress into and egress from medical facilities providing abortion related services (“the January 20 Opinion”). Defendants appealed from the various orders entered by this Court. The Court of Appeals, in an Opinion dated September 20, 1989, affirmed this Court’s rulings which, inter alia, (1) enjoined defendants from blocking access to clinics offering abortions, (2) held Terry and Operation Rescue in contempt for violation of the May 4 Order, and (3) imposed discovery sanctions on defendants. 886 F.2d 1339. The Court’s ruling regarding payment of the civil contempt sanctions was modified to provide that the coercive penalties for violations of the orders be payable into the Court, not to plaintiff N.O.W. 886 F.2d at 1353. The instant motion for contempt Plaintiffs’ application for contempt relates to four days of blockades of facilities performing abortions: May 6, 1988, October 29, 1988, January 13, 1989, and January 14, 1989. Plaintiffs seek contempt sanctions against the following organizations and persons: Defendants: Operation Rescue Randall Terry (“Terry”) Thomas Herlihy (“Herlihy”) Respondents: Bistate Operation Rescue Network (“B.O.R.N.”) Jesse Lee (“Lee”) Joseph Foreman (“Foreman”) Michael McMonagle (“McMonagle”) Jeff White (“White”) Michael La Penna (“La Penna”) Florence Talluto (“Talluto”) Adelle Nathanson (“A. Nathanson”) Bernard Nathanson (“B. Nathanson”) Robert Pearson (“Pearson”) No facts were disputed by any of defendants, nor by respondents B.O.R.N., Lee, Foreman, McMonagle, White, La Penna and Talluto. Respondents B. Nathan-son, A. Nathanson and Pearson, disputed the alleged facts concerning their knowledge of the Court’s orders and their involvement in blocking access to clinics in concert with defendants. The Court commenced a hearing regarding the disputed facts on August 9, 1989. On August 9, 10, 15 and 16, 1989, the Court heard testimony and received evidence concerning the alleged roles these three respondents played in blocking access to clinics in concert with defendants and in violation of the Court’s orders." } ]

[ { "docid": "19853870", "title": "", "text": "MESKILL, Circuit Judge: The principal issue in these appeals is the validity of a preliminary injunction issued by the United States District Court for the Western District of New York, Arcara, J. In No. 92-7302, the appellants appeal from the order issuing the injunction, Pro-Choice Network of Western New York v. Project Rescue Western New York, 799 F.Supp. 1417 (W.D.N.Y.1992) (Pro-Choice I); in No. 93-7918, the appellants appeal from the district court’s denial of a motion to vacate the injunction, Pro-Choice Network of Western New York v. Project Rescue Western New York, 828 F.Supp. 1018 (W.D.N.Y.1993) (Pro-Choice II). For the reasons stated below, we affirm in part and reverse in part in Pro-Choice I, and we affirm in Pro-Choice II. BACKGROUND Both appeals arise out of the same underlying ease, which commenced on September 24, 1990, when the plaintiffs filed a suit against the defendants alleging, primarily, that the defendants were engaged in a conspiracy to deprive women seeking abortions the privileges and immunities of national citizenship and the equal protection of the laws. The plaintiffs (collectively “Pro-Choice”) include an organization, Pro-Choice Network of Western New York, that seeks to ensure legal access to abortion, as well as individual doctors and climes in western New York that provide health care services, including the performance of abortions. The defendants (collectively “Project Rescue”) are various individuals and organizations, including Project Rescue Western New York, that oppose abortion and have engaged in demonstrations at or near certain abortion clinics in western New York. Pro-Choice’s conspiracy claim against Project Rescue, which alleged that Project Rescue sought to violate women’s constitutional rights to seek abortion and to travel, was predicated on the first clause of 42 U.S.C. § 1985(3). That provision states in pertinent part: If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ... the party so injured" }, { "docid": "12486883", "title": "", "text": "of the orders be payable into Court, not to plaintiff N.O.W. 886 F.2d at 1353. Defendants’ petition for certiorari was denied by the Supreme Court on May 21, 1990. — U.S. -, 110 S.Ct. 2206, 109 L.Ed.2d 532. On June 9, 1989, plaintiffs moved by order to show cause to hold defendants Operation Rescue, Terry, Thomas Herlihy (“Herlihy”) and respondents Bistate Operation Rescue Network (“B.O.R.N.”), Jesse Lee (“Lee”), Joseph Foreman (“Foreman”), Michael McMonagle (“McMonagle”), Jeff White (“White”), Michael La Penna (“La Penna”), Florence Talluto (“Talluto”), Adelle Nathanson (“A. Nathanson”), Bernard Nathanson (“B. Nathanson”) and Robert Pearson (“Pearson”) in civil contempt for violating the May 4 Order, the October 27 Order and/or the Permanent Injunction. The Court conducted a hearing on August 9, 10, 15 and 16, 1989 to determine factual issues disputed by respondents B. Nathanson, A. Nathanson and Pearson. On February 27, 1990, the Court issued a decision granting in part and denying in part plaintiffs’ motion for contempt. De fendants Randall Terry and Operation Rescue were adjudged in civil contempt of the October 27 Order and Permanent Injunction and assessed coercive civil penalties in the amount of $100,000. Defendant Her-lihy was adjudged in civil contempt of the May 4 Order and assessed coercive civil penalties in the amount of $25,000. Respondent B.O.R.N. was adjudged in civil contempt of the October 27 Order and assessed coercive civil penalties in the amount of $25,000. Respondent Lee was adjudged in civil contempt of the May 4 Order, October 27 Order and Permanent Injunction and assessed coercive civil penalties in the amount of $100,000. Respondent Foreman was adjudged in civil contempt of the May 4 Order and Permanent Injunction and assessed coercive civil penalties in the amount of $25,000. Respondents McMonagle and White were adjudged in civil contempt of the Court’s Permanent Injunction and each assessed coercive civil penalties in the amount of $25,-000. Respondent La Penna was adjudged in civil contempt of the May 4 Order and October 27 Order and assessed coercive civil penalties in the amount of $25,000. Respondent Talluto was adjudged in civil contempt of the October 27" }, { "docid": "10488243", "title": "", "text": "Schenck and Project Rescue alleging that they violated the TRO on December 29, 1990. During the months of December, 1990 and January, 1991, the parties, with the assistance of the Court, attempted unsuccessfully to settle this action. A hearing on the contempt motion against Nancy Walker was then held from February 6, 1991 to February 14, 1991. Then, as stated earlier, a preliminary injunction hearing was held from March 6, 1991 to April 1, 1991. Subsequently, a hearing on the contempt motions against Bonnie Behn and Carla Rainero was held from June 18, 1991 to July 12, 1991. Finally, a hearing on the contempt motions against Rev. Paul Schenck, Rev. Robert Schenck and Project Rescue was held from October 15, 1991 to January 30, 1992. III. FINDINGS OF FACT It is indisputable that all defendants in this case share a deep commitment to the goals of stopping the practice of abortion and reversing its legalization. To achieve these goals, individual defendants have agreed and combined with one another and with the organizational defendants to coordinate, organize and participate in “rescue” demonstrations at abortion clinics located throughout Western New York. While these “rescue” demonstrations are usually peaceful in nature, they often become emotionally charged encounters between demonstrators, patients and patient escorts. During the hearings, several defendants insisted that Project Rescue is not an entity subject to being enjoined or held in contempt. The Court finds that, although not organized in corporate or partnership form, Project Rescue produces and distributes literature that encourages participants to gather in front of abortion clinics and block or impede access to them, has official spokespersons and designated leaders who organize and plan its activities, possesses a mailing address, engages in correspondence, has an active telephone “hotline”, seeks donations in its name, and reimburses its members for expenses. Thus, Project Rescue possesses adequate characteristics of a legal entity to be enjoined or held in contempt. There are three types of “rescue” demonstrations at issue in this ease: (1) physically “blockading” health care facilities in order to prevent women seeking abortions and medical personnel from entering or exiting" }, { "docid": "4076830", "title": "", "text": "Order shall be liable for all attorneys’ fees and related costs incurred by plaintiffs in relation to enforcement of this Order. In the event these penalties too fail to secure compliance of the Court’s order, more severe penalties will have to be considered. CONCLUSION For the reasons set forth above, defendants’ motion to dismiss is denied. Plaintiffs’ motion for summary judgment, joined by plaintiff-intervenor, is granted. Permanent injunction issued January 10, 1989. . The plaintiffs in the instant action are: New York State National Organization for Women; New York City Chapter of the National Organization for Women; National Organization for Women; Religious Coalition for Abortion Rights (RCAR); New York State National Abortion Rights Action League, Inc.; Planned Parenthood of New York City, Inc.; Eastern Women’s Center, Inc.; Planned Parenthood Clinic (Bronx); Planned Parenthood Clinic (Brooklyn); Planned Parenthood Margaret Sanger Clinic (Manhattan); Ob-Gyn Pavilion; Center for Reproductive and Sexual Health (CRASH); VIP Medical Associates; Bill Baird Institute (Suffolk); Bill Baird Institute (Nassau); Bill Baird, Director of the Bill Baird Institutes; Thomas J. Mullin, M.D., F.A.C.O.G., medical director of Eastern Women’s Center; Rev. Beatrice Blair, chairperson of RCAR; Rabbi Dennis Math, Vice-President of RCAR; Rev. Donald Morían, Treasurer of RCAR; and Pro-Choice Coalition. Plaintiffs have brought this action on behalf of themselves and on behalf of a class of all family planning clinics and abortion providers and their staff and patients in New York City, Nassau, Suffolk, and Westchester Counties. To date, the Court has taken no action to certify the putative class. For convenience and where the context permits, the Court will refer to plaintiffs, plaintiff-intervenor and the women on whose behalf they have brought this action, collectively, as “plaintiffs.” . The defendants in this action are: Randall Terry; Operation Rescue; Rev. James P. Lis-ante; and Thomas Herlihy. In addition, plaintiffs have named as defendants \"John Does” and \"Jane Does,” intended to designate organizations or persons who are members of defendant organizations, and others acting in concert with any of the defendants who are engaging in, or intend to engage in, the conduct complained of. . The terms of Justice Cahn’s" }, { "docid": "12486879", "title": "", "text": "against defendants claiming violations of 42 U.S.C. § 1985(3) and New York State law. Plaintiffs sought injunctive and declaratory relief to restrain defendants from blocking access to medical facilities providing abortions. On May 4, 1988, this Court issued an order (“the May 4 Order”) which enjoined defendants from obstructing ingress into or egress from abortion facilities in the New York City area, and which provided for coercive fines of $25,000 for each day defendants violated the terms of the order. Defendants moved to vacate the May 4 Order for plaintiffs’ alleged failure to comply with Rule 65(c), Fed.R.Civ.P. That motion was denied on May 6, 1988. Also on that date, the Court of Appeals denied defendants’ application for a stay of the May 4 Order pending appeal. On May 31, 1988, plaintiffs sought to have defendants adjudged in civil contempt for demonstrations held in violation of the May 4 Order on May 5 and 6, 1988. In an Opinion dated October 27, 1988 (“the October 27 Opinion”), this Court granted plaintiffs’ motion, denied defendants’ cross-motion to dismiss, and adjudged defendants Randall Terry (“Terry”) and Operation Rescue in civil contempt of the May 4 Order for their activities during the May 5 and May 6 demonstrations. 697 F.Supp. 1324, 1338. Accordingly, a judgment was entered by the Court holding Terry and Operation Rescue jointly and severally liable for $50,000.00 in civil contempt sanctions to be paid to plaintiff, National Organization for Women (“N.O.W.”). In addition, a judg ment was entered in the amount of $19,-141.00 in favor of the City of New York for the costs it incurred as a result of defendants’ failure to provide advance notice of either demonstration. On October 7, 1988, plaintiffs moved to modify the Court’s prior injunction to cover the dates October 28, 29 and 31, 1988, in response to defendants’ publicized plan to conduct a “National Day of Rescue” at the end of October. At the conclusion of an evidentiary hearing conducted on October 25 and 27, 1988, the Court granted plaintiffs’ motion and signed an order granting plaintiffs the modified preliminary relief they" }, { "docid": "12486880", "title": "", "text": "to dismiss, and adjudged defendants Randall Terry (“Terry”) and Operation Rescue in civil contempt of the May 4 Order for their activities during the May 5 and May 6 demonstrations. 697 F.Supp. 1324, 1338. Accordingly, a judgment was entered by the Court holding Terry and Operation Rescue jointly and severally liable for $50,000.00 in civil contempt sanctions to be paid to plaintiff, National Organization for Women (“N.O.W.”). In addition, a judg ment was entered in the amount of $19,-141.00 in favor of the City of New York for the costs it incurred as a result of defendants’ failure to provide advance notice of either demonstration. On October 7, 1988, plaintiffs moved to modify the Court’s prior injunction to cover the dates October 28, 29 and 31, 1988, in response to defendants’ publicized plan to conduct a “National Day of Rescue” at the end of October. At the conclusion of an evidentiary hearing conducted on October 25 and 27, 1988, the Court granted plaintiffs’ motion and signed an order granting plaintiffs the modified preliminary relief they sought (“the October 27 Order”). Defendants’ applications to this Court and to the Court of Appeals for a stay pending appeal of the October 27 Order were denied. On December 21, 1988, plaintiffs moved for summary judgment and a permanent injunction upon receiving notice of blockades planned by Operation Rescue in the New York City area from January 12 to 14, 1989. These blockades had been organized in express retaliation for this Court’s October 27 Opinion. 697 F.Supp. 1324. See Exhibit A, annexed to Affirmation of Mary M. Gundrum, filed December 21, 1988 (Letter from Randall Terry, dated November 16, 1988, urging participation in January blockades of “abortion mills” in the New York City area in order to “face down” this Court). On January 6, 1989, the Court heard oral argument on plaintiffs’ motion for summary judgment and defendants’ motion to dismiss and, on January 10, 1989, the Court issued a permanent injunction that again enjoined defendants from blocking access to medical facilities offering abortions and included coercive sanctions of $25,000 per day for violations" }, { "docid": "12486878", "title": "", "text": "ROBERT J. WARD, District Judge. Plaintiffs move for an award of reasonable attorney’s fees and costs against defendants pursuant to 42 U.S.C. § 1988 for services rendered in litigating this action from the spring of 1988 through the spring of 1989. In addition, plaintiffs seek attorney’s fees and costs against certain defendants and other individuals and organizations acting in concert with those defendants (collectively “respondents\") who were adjudged in civil contempt of this Court’s orders in an Opinion dated February 27, 1990 (the “February 27 Opinion”), 732 F.Supp. 388. Attorney A. Lawrence Washburn, Jr. (“Washburn”) has filed a motion to vacate that portion of the February 27 Opinion which imposed sanctions against him under Rule 11, Fed.R.Civ.P. For the reasons that follow, plaintiffs’ motion for an award of attorney’s fees and costs against defendants under section 1988 and plaintiffs’ application for attorney’s fees and costs against the con-temnors are granted in part and denied in part. Washburn’s motion to vacate the imposition of Rule 11 sanctions is denied. BACKGROUND In April 1988, plaintiffs filed suit against defendants claiming violations of 42 U.S.C. § 1985(3) and New York State law. Plaintiffs sought injunctive and declaratory relief to restrain defendants from blocking access to medical facilities providing abortions. On May 4, 1988, this Court issued an order (“the May 4 Order”) which enjoined defendants from obstructing ingress into or egress from abortion facilities in the New York City area, and which provided for coercive fines of $25,000 for each day defendants violated the terms of the order. Defendants moved to vacate the May 4 Order for plaintiffs’ alleged failure to comply with Rule 65(c), Fed.R.Civ.P. That motion was denied on May 6, 1988. Also on that date, the Court of Appeals denied defendants’ application for a stay of the May 4 Order pending appeal. On May 31, 1988, plaintiffs sought to have defendants adjudged in civil contempt for demonstrations held in violation of the May 4 Order on May 5 and 6, 1988. In an Opinion dated October 27, 1988 (“the October 27 Opinion”), this Court granted plaintiffs’ motion, denied defendants’ cross-motion" }, { "docid": "10558765", "title": "", "text": "ROBERT J. WARD, District Judge. Plaintiffs moved by order to show cause to hold certain defendants and other individuals and organizations acting in concert with those defendants (collectively “respondents”) in civil contempt of court for violating the temporary restraining order, the preliminary injunction and/or the permanent injunction in this action. These orders prohibited blocking access to medical facilities which performed abortions. Plaintiffs also seek to recover the costs and attorneys fees they incurred in bringing this contempt motion. A myriad of related motions have been filed by the parties to this proceeding and a previously denied cross-motion to dismiss the motion for contempt has been renewed by certain respondents. In response, plaintiffs filed a motion for the imposition of Rule 11 sanctions against attorney A. Lawrence Washburn (“Wash-burn”), claiming that the renewed cross-motion is frivolous. Plaintiffs also filed a motion to strike a portion of the record in the hearing conducted by the Court in these contempt proceedings, and for the imposition of sanctions pursuant to 28 U.S.C. § 1927, against attorney John P. Hale (“Hale”), counsel for respondents Adelle and Bernard Nathanson. For the reasons that follow, the motion to hold defendants and respondents in civil contempt is granted in part and denied in part, the renewed cross-motion to dismiss is denied, the motion for the imposition of Rule 11 sanctions against Washburn is granted, and the motion to strike the record and impose sanctions on Hale is granted in part and denied in part. BACKGROUND Plaintiffs commenced this action in New York State Supreme Court on April 25, 1988, seeking injunctive and declaratory relief to restrain defendants from blocking access to medical facilities providing abortions. Defendants had organized and publicized a week of protests called “Operation Rescue” to be carried out in the New York City area from April 30 until May 7, 1988. According to defendants’ plan, protestors each day would converge on a facility at which abortions were performed in an effort to close down the facility. The target facility each day was not to be disclosed in advance. By order to show cause, plaintiffs sought" }, { "docid": "22768337", "title": "", "text": "First Amendment rights to the limitations contained in the injunction that is the subject of this appeal. Defendants Randall Terry and Operation Rescue appeal from a judgment of the United States District Court for the Southern District of New York (Ward, J.) entered on January 10, 1989, which denied defendants’ motion to dismiss; granted plaintiff New York State National Organization for Women’s (N.O.W.) and plaintiff-in tervenor City of New York’s (City) motions for summary judgment on their claims under 42 U.S.C. § 1985(3) (1982) and the New York common law of trespass and public nuisance, respectively; and permanently enjoined defendants from impeding or obstructing ingress into and egress from medical facilities during anti-abortion demonstrations. Appellants challenge the constitutionality of a series of injunctions issued during the course of this litigation, as well as the substantive grounds upon which the permanent injunction is based. See New York State Nat’l Org. for Women v. Terry, 704 F.Supp. 1247 (S.D.N.Y.1989) (decision on the merits resulting in permanent injunction); New York Nat’l Org. for Women v. Terry, 697 F.Supp. 1324 (S.D.N.Y.1988) (contempt order of October 27, 1988). For the reasons that follow the district court’s judgment is modified, leaving in place the permanent injunction, and as modified, it is affirmed. BACKGROUND I State Court Proceedings Plaintiffs commenced this action in New York State Supreme Court on April 25, 1988 seeking declaratory and injunctive relief to restrain Operation Rescue from blocking access to medical facilities providing abortions. The complaint alleged eight separate causes of action: violations of New York Civil Rights Law § 40-c and New York Executive Law § 296; public nuisance; interference with the business of medical facilities; trespass; infliction of emotional harm on patients and employees of medical facilities; tortious harassment of patients and employees of medical facilities; false imprisonment of patients and employees of medical facilities; and conspiracy to deny women seeking abortion or family planning services the equal protection of the laws and equal privileges and immunities, in violation of 42 U.S.C. § 1985(3). On April 28, 1988 a temporary restraining order (TRO) that did not expressly enjoin Operation Rescue" }, { "docid": "2943248", "title": "", "text": "OPINION OF THE COURT ROTH, Circuit Judge: This is an action brought for declaratory and injunctive relief to stop blockades of abortion clinics. Aspects of this dispute have been before the courts for almost seven years. In the latest episode, the District Court for the Eastern District of Pennsylvania denied appellants’ motion to hold Operation Rescue, Randall A. Terry, Robert Lewis, and Joseph Roach in contempt for violating a Revised Permanent Injunction, issued on July 17, 1989. Plaintiffs, National Abortion Rights Action League of Pennsylvania (“NARAL-PA”), Planned Parenthood Of Southeastern Pennsylvania, Elizabeth Blackwell Health Center for Women, Reproductive Health and Counseling Center, Women’s Suburban Clinic, Allentown Women’s Center, and Northeast Women’s Center appeal that order. Because we find that the district court applied an incorrect legal standard in deciding the question of civil contempt, we will reverse the denial of the motion, and we will remand the case to the district court with instructions to grant the motion. I. The underlying action was originally brought on June 29, 1988, by eleven plaintiffs, consisting of NARAL-PA, seven abortion and family planning climes, two pregnant women, and a physician who regularly performed abortions. It was brought in- response to Operation Rescue’s “publicly announced plans to close down climes that offer abortions in the Philadelphia area by staging massive demonstrations and blockades at ... [those] facilities.” Roe v. Operation Rescue, 919 F.2d 857, 861 (3d Cir.1990) (‘'Roe IV”). The plaintiffs sought declaratory and injunc-tive relief against these proposed activities. Operation Rescue and Randall Terry were among the named defendants. After a hearing on June 30, 1988, the United States District Court for the Eastern District of Pennsylvania issued a temporary restraining order (“TRO”) “enjoining the defendants and others acting in concert with them from trespassing on, blocking entrances at, or physically abusing or harassing persons working or obtaining services at abortion facilities in the metropolitan Philadelphia area from July 4,” 1988, to July 9,1988. Roe IV at 862. In March 1989, the district court permanently enjoined the defendants from “trespassing on, blocking, obstructing ingress or egress from any facility at which abortions are" }, { "docid": "10558773", "title": "", "text": "Operation Rescue demonstrators blocked access to the Women’s Pavilion medical clinic on Deer Park Avenue in Deer Park, Suffolk County, New York. Exhibits A & J, annexed to Gund-rum Affidavit; Exhibit 37, annexed to Gundrum Deck Both clinics provide abortions and family planning counseling. On December 21, 1988, plaintiffs moved for summary judgment and a permanent injunction upon receiving notice of blockades planned by Operation Rescue in the New York City area from January 12 to 14, 1989. These blockades had been organized in express retaliation for this Court’s October 27 Opinion. 697 F.Supp. 1324. See Exhibit A, annexed to Gundrum Aff. (Letter from Randall Terry, dated November 16, 1988, urging participation in January blockades of “abortion mills” in the New York City area in order to “face down” this Court). On January 6, 1989, the Court heard oral argument on plaintiffs’ motion for summary judgment and defendants’ motion to dismiss and, on January 10, 1989, the Court issued a permanent injunction that again enjoined defendants from blocking access to medical facilities offering abortion and included coercive sanctions of $25,000 per day for violations of the order (the “Permanent Injunction”). The Permanent Injunction was modified from the previous orders to provide that each successive violation of the injunction would result in doubling the civil contempt sanction applicable to the contemnor. Notwithstanding the issuance of the Permanent Injunction, once again Operation Rescue organized and led demonstrations which blocked access to clinics offering abortion. On January 13, 1989, Terry and other Operation Rescue leaders led several hundred persons to block access to and from the Margaret Sanger Planned Parenthood Clinic at 380 Second Avenue in Manhattan, a facility that performs abortions (the “Margaret Sanger Clinic”). Exhibits 17 & 26, annexed to Gundrum Deck Police Inspector James Helbock read the permanent injunction to the demonstrators using a bullhorn, before approximately 275 demonstrators were arrested. Exhibit 26, annexed to Gundrum Deck Terry, using a bullhorn as well, instructed demonstrators to lock arms and prevent police officers from reaching the building entrance, and to engage in “total, complete non-cooperation” with the police. Id. On January" }, { "docid": "10558770", "title": "", "text": "Stipulated Facts, filed July 26, 1988 11 5. The terms of the May 4, Order were read aloud by the New York City police before arrests began. Id. 1Í7. At no time after he received notice of the May 4 Order did defendant Terry direct demonstrators to obey the Order, nor did he at any time alter his prior written instructions to Operation Rescue participants that their goal must be to block access to abortion facilities. Id. ¶ 6. Defendant Terry, however, communicated the terms of the Court’s May 4 Order to the demonstrators at the May 6, 1988 demonstration. Id. Approximately 320 Operation Rescue demonstrators were arrested that day. Id. 1Í 7. On May 31, 1988, plaintiffs sought civil contempt sanctions against defendants pursuant to Rule 70, Fed.R.Civ.P. and 18 U.S.C. § 401 (1982), as a consequence of the events of May 5 and 6. In an Opinion dated October 27, 1988 (“the October 27 Opinion”), the Court granted the motion, denied defendants’ cross-motion to dismiss, and adjudged defendants Terry and Operation Rescue in civil contempt of the May 4 Order for their activities during the May 5 and May 6 demonstrations. 697 F.Supp. 1324, 1338. Accordingly, a judgment in the amount of $50,000.00 was entered by the Court holding Terry and Operation Rescue jointly and severally liable for $50,000.00 in civil contempt sanctions to be paid to plaintiff, National Organization for Women (“N.O.W.”), and a judgment was entered in the amount of $19,141.00 in favor of the City for the costs that resulted from defendants’ failure to provide advance notice of either demonstration. The relief granted in the Court’s October 27 Opinion was expressly “without prejudice to plaintiffs’ right to proceed against defendants Her-lihy and Lisante, or against any other individuals who violated the Court’s Order with notice.” 697 F.Supp. at 1338. On October 7, 1988, plaintiffs moved to modify the Court’s prior injunction to cover the dates October 28, 29 and 31, 1988, in response to defendants’ publicized plan to conduct a “National Day of Rescue” at the end of October. At the conclusion of an evidentiary" }, { "docid": "12486882", "title": "", "text": "of the order (the “Permanent Injunction”). The Permanent Injunction was modified from the previous orders to provide that each successive violation of the injunction would result in doubling the civil contempt sanction applicable to the contemnor. On January 20, 1989, the Court issued an opinion granting plaintiffs’ motion for summary judgment on their common law trespass claim and on their 42 U.S.C. § 1985(3) federal cause of action and permanently enjoining Operation Rescue and its participants from blocking ingress into and egress from medical facilities providing abortion related services (“the January 20 Opinion”). Defendants appealed from the various orders entered by this Court. The Court of Appeals, in an Opinion dated September 20, 1989, affirmed this Court’s rulings which, inter alia, (1) enjoined defendants from blocking access to clinics offering abortions, (2) held Terry and Operation Rescue in contempt for violation of the May 4 Order, and (3) imposed discovery sanctions on defendants. 886 F.2d 1339. The ruling regarding payment of the civil contempt sanctions was modified to provide that the coercive penalties for violations of the orders be payable into Court, not to plaintiff N.O.W. 886 F.2d at 1353. Defendants’ petition for certiorari was denied by the Supreme Court on May 21, 1990. — U.S. -, 110 S.Ct. 2206, 109 L.Ed.2d 532. On June 9, 1989, plaintiffs moved by order to show cause to hold defendants Operation Rescue, Terry, Thomas Herlihy (“Herlihy”) and respondents Bistate Operation Rescue Network (“B.O.R.N.”), Jesse Lee (“Lee”), Joseph Foreman (“Foreman”), Michael McMonagle (“McMonagle”), Jeff White (“White”), Michael La Penna (“La Penna”), Florence Talluto (“Talluto”), Adelle Nathanson (“A. Nathanson”), Bernard Nathanson (“B. Nathanson”) and Robert Pearson (“Pearson”) in civil contempt for violating the May 4 Order, the October 27 Order and/or the Permanent Injunction. The Court conducted a hearing on August 9, 10, 15 and 16, 1989 to determine factual issues disputed by respondents B. Nathanson, A. Nathanson and Pearson. On February 27, 1990, the Court issued a decision granting in part and denying in part plaintiffs’ motion for contempt. De fendants Randall Terry and Operation Rescue were adjudged in civil contempt of the October" }, { "docid": "4076831", "title": "", "text": "director of Eastern Women’s Center; Rev. Beatrice Blair, chairperson of RCAR; Rabbi Dennis Math, Vice-President of RCAR; Rev. Donald Morían, Treasurer of RCAR; and Pro-Choice Coalition. Plaintiffs have brought this action on behalf of themselves and on behalf of a class of all family planning clinics and abortion providers and their staff and patients in New York City, Nassau, Suffolk, and Westchester Counties. To date, the Court has taken no action to certify the putative class. For convenience and where the context permits, the Court will refer to plaintiffs, plaintiff-intervenor and the women on whose behalf they have brought this action, collectively, as “plaintiffs.” . The defendants in this action are: Randall Terry; Operation Rescue; Rev. James P. Lis-ante; and Thomas Herlihy. In addition, plaintiffs have named as defendants \"John Does” and \"Jane Does,” intended to designate organizations or persons who are members of defendant organizations, and others acting in concert with any of the defendants who are engaging in, or intend to engage in, the conduct complained of. . The terms of Justice Cahn’s May 2 Order are as follows: _[I]t is hereby ORDERED that the defendants, the officers, directors, agents, and representatives of defendants, and all other persons whomsoever, acting in concert with them, and with notice of this order are: 1) enjoined and restrained in any manner or by any means from: a) trespassing on, blocking, obstructing ingress into or egress from any facility at which abortions are performed in the City of New York, Nassau, Suffolk, or Westchester Counties from May 2, 1988 to May 7, 1988, b) physically abusing or tortiously harassing persons entering, leaving, working at, or using any services at any facility at which abortions are performed in the City of New York, Nassau, Suffolk, or Westchester Counties, from May 2, 1988 to May 7, 1988. Provided, however, that sidewalk counseling, consisting of reasonably quiet conversation of a nonthreatening nature by not more than two people with each person they are seeking to counsel shall not be prohibited. Also provided that no one is required to accept or listen to sidewalk counseling and" }, { "docid": "2943249", "title": "", "text": "seven abortion and family planning climes, two pregnant women, and a physician who regularly performed abortions. It was brought in- response to Operation Rescue’s “publicly announced plans to close down climes that offer abortions in the Philadelphia area by staging massive demonstrations and blockades at ... [those] facilities.” Roe v. Operation Rescue, 919 F.2d 857, 861 (3d Cir.1990) (‘'Roe IV”). The plaintiffs sought declaratory and injunc-tive relief against these proposed activities. Operation Rescue and Randall Terry were among the named defendants. After a hearing on June 30, 1988, the United States District Court for the Eastern District of Pennsylvania issued a temporary restraining order (“TRO”) “enjoining the defendants and others acting in concert with them from trespassing on, blocking entrances at, or physically abusing or harassing persons working or obtaining services at abortion facilities in the metropolitan Philadelphia area from July 4,” 1988, to July 9,1988. Roe IV at 862. In March 1989, the district court permanently enjoined the defendants from “trespassing on, blocking, obstructing ingress or egress from any facility at which abortions are performed in the City of Philadelphia or metropolitan area” and from “physically abusing or tortiously harassing persons entering, leaving, working at, or using any services at any facility at which abortions are performed in the City of Philadelphia and metropolitan area.” Roe v. Operation Rescue, 710 F.Supp. 577, 589 (E.D.Pa.1989) (“Roe II ”), aff'd in part and rev’d in part in Roe IV. Subsequently, on plaintiffs’ motion to modify the permanent injunction to provide for the United States Marshal for the Eastern District of Pennsylvania to read the injunction at protest sites, the district court granted the Revised Permanent Injunction at issue here. Roe v. Operation Rescue, No. 88-5157 (E.D.Pa. July 17, 1989) (“Roe III”). The present appeal arose out of the third civil contempt motion to be filed in this ongoing case. On September 7, 1993, plaintiffs sought civil contempt sanctions against Operation Rescue, Randall Terry, and non-party respondents Joseph Roach, Robert Lewis, and Owenna Nagy for alleged violations on July 9, 1993, of the district court’s Revised Permanent Injunction. On December 1, 1993," }, { "docid": "23200968", "title": "", "text": "of action — their § 1985(3) claim and their two state-law claims — was by itself sufficient to warrant injunctive relief. Defendants have not appealed the court’s grant of summary judgment on plaintiffs’ two state-law claims. Considering the complexity of the federal issue and the unchallenged bases for upholding the permanent injunction, we decline to issue an ambitious advisory opinion, and we will therefore affirm the order granting the injunction. I. FACTS AND PROCEDURAL HISTORY In the early summer of 1988, Operation Rescue publicly announced plans to close down clinics that offer abortions in the Philadelphia area by staging massive demonstrations and blockades at these facilities during the week of July 4. These demonstrations, described below, constituted one phase of a well-orchestrated campaign to disrupt and shut down abortion clinics throughout the nation. Operation Rescue’s plans for Philadelphia involved a rally on July 4 and “rescue missions” — i.e., blockades and demonstrations — at abortion clinics on July 5 and 6. The organization, however, did not identify in advance which Philadelphia area clinics it intended to target. The success of Operation Rescue’s blockades elsewhere, particularly in New York City, and its public boasts about the prospective Philadelphia demonstrations led eleven plaintiffs to file a complaint in the district court for the Eastern District of Pennsylvania on June 29, 1988, seeking declaratory and injunctive relief against the threatened protests, as well as money damages. The original eleven plaintiffs consisted of seven abortion and family planning clinics; the National Abortion Rights Action League of Pennsylvania (“NARAL/PA”), the local chapter of a national organization representing people who wish to keep abortion legal; Jane Roe and Mary Moe, two pregnant women for whom abortions had been scheduled during the week of July 4; and Dr. Allen Kline, a physician who regularly performs abortions in Philadelphia. The thirty named defendants included Operation Rescue; Randall Terry, the National Director and Organizer of Operation Rescue; Joseph Foreman, the Regional Director of Operation Rescue; and Michael McMonagle, the Executive Director of Pro-Life Coalition of Southeastern Pennsylvania. Plaintiffs’ complaint alleged two federal causes of action, one under the federal" }, { "docid": "22768336", "title": "", "text": "CARDAMONE, Circuit Judge: The principal question presented on this appeal is whether the First Amendment grants Operation Rescue (appellants) the right to engage in activities designed to deny access to abortion clinics to women seeking the services they provide. We must determine if the limitations placed by the district court on appellants’ actions and speech square with the constitutional rights guaranteed all citizens under the First Amendment. We think they do. Insofar as appellants’ attempts to block ingress and egress to plaintiffs’ clinics resulted in Operation Rescue demonstrators’ physical presence on the clinics’ premises, they were trespassers without right, constitutional or otherwise, to be there. Insofar as appellants’ rights of free speech were exercised in close proximity to individual women entering or leaving the clinics so as to tortiously assault or harass them, appellants’ rights ended where those women’s rights began. There is no constitutional privilege to assault or harass an individual or to invade another’s personal space. Hence, the tortious interference with the constitutional rights of those entering or leaving the clinics subjects appellants’ First Amendment rights to the limitations contained in the injunction that is the subject of this appeal. Defendants Randall Terry and Operation Rescue appeal from a judgment of the United States District Court for the Southern District of New York (Ward, J.) entered on January 10, 1989, which denied defendants’ motion to dismiss; granted plaintiff New York State National Organization for Women’s (N.O.W.) and plaintiff-in tervenor City of New York’s (City) motions for summary judgment on their claims under 42 U.S.C. § 1985(3) (1982) and the New York common law of trespass and public nuisance, respectively; and permanently enjoined defendants from impeding or obstructing ingress into and egress from medical facilities during anti-abortion demonstrations. Appellants challenge the constitutionality of a series of injunctions issued during the course of this litigation, as well as the substantive grounds upon which the permanent injunction is based. See New York State Nat’l Org. for Women v. Terry, 704 F.Supp. 1247 (S.D.N.Y.1989) (decision on the merits resulting in permanent injunction); New York Nat’l Org. for Women v. Terry, 697 F.Supp." }, { "docid": "12486881", "title": "", "text": "sought (“the October 27 Order”). Defendants’ applications to this Court and to the Court of Appeals for a stay pending appeal of the October 27 Order were denied. On December 21, 1988, plaintiffs moved for summary judgment and a permanent injunction upon receiving notice of blockades planned by Operation Rescue in the New York City area from January 12 to 14, 1989. These blockades had been organized in express retaliation for this Court’s October 27 Opinion. 697 F.Supp. 1324. See Exhibit A, annexed to Affirmation of Mary M. Gundrum, filed December 21, 1988 (Letter from Randall Terry, dated November 16, 1988, urging participation in January blockades of “abortion mills” in the New York City area in order to “face down” this Court). On January 6, 1989, the Court heard oral argument on plaintiffs’ motion for summary judgment and defendants’ motion to dismiss and, on January 10, 1989, the Court issued a permanent injunction that again enjoined defendants from blocking access to medical facilities offering abortions and included coercive sanctions of $25,000 per day for violations of the order (the “Permanent Injunction”). The Permanent Injunction was modified from the previous orders to provide that each successive violation of the injunction would result in doubling the civil contempt sanction applicable to the contemnor. On January 20, 1989, the Court issued an opinion granting plaintiffs’ motion for summary judgment on their common law trespass claim and on their 42 U.S.C. § 1985(3) federal cause of action and permanently enjoining Operation Rescue and its participants from blocking ingress into and egress from medical facilities providing abortion related services (“the January 20 Opinion”). Defendants appealed from the various orders entered by this Court. The Court of Appeals, in an Opinion dated September 20, 1989, affirmed this Court’s rulings which, inter alia, (1) enjoined defendants from blocking access to clinics offering abortions, (2) held Terry and Operation Rescue in contempt for violation of the May 4 Order, and (3) imposed discovery sanctions on defendants. 886 F.2d 1339. The ruling regarding payment of the civil contempt sanctions was modified to provide that the coercive penalties for violations" }, { "docid": "2943267", "title": "", "text": "court with instructions to enter an order granting plaintiffs’ motion to hold Operation Rescue, Randall Terry, Robert Lewis, and Joseph Roach in civil contempt of the Permanent Revised Injunction, issued July 17, 1989, and for further proceedings consistent with this opinion. . As discussed below, we hold that the two groups, Operation Rescue and Operation Rescue National, are interchangeable. . At least two other federal courts have found Operation Rescue National and Operation Res cue to be the same organization. See NOW v. Operation Rescue, 816 F.Supp. 729, 733 (D.D.C.1993); Women's Health Care Servs., P.A. v. Operation Rescue-National, 1991 WL 173981, 1991 U.S. Dist LEXIS 14521, *1-4 (D.Kan. Aug. 27, 1991). . See App. at 71 (testimony that a check written and mailed to Operation Rescue was cashed and endorsed hy \"ORN,” presumably Operation Rescue National). . Appellants also assert that the court committed a serious factual error in setting the date of Terry's speaking appearance at \"a date prior” to the Cities of Refuge campaign when all the evidence, including Terry’s own testimony, indicates that the speech occurred during the campaign, in the evening of the same day as the RHCC blockade. Appellees argue that the error was harmless and that placing Terry’s speech on a date \"prior to” the campaign actually supported appellants’ argument. A clearly erroneous factual finding may create appropriate grounds for reversal of a trial court’s decision in a contempt proceeding. See Harley-Davidson v. Morris, 19 F.3d at 145; Martin v. International Matex Tank Terminals, 928 F.2d at 626. We do not find it necessary to reach this issue, however, because we find sufficient other legal and factual grounds to support our reversal. . See New York State NOW v. Terry, 732 F.Supp. 388, 405 (S.D.N.Y.1990) (holding a local group affiliated with Operation Rescue in contempt of injunctive orders that prohibited blocking access to medical facilities that performed abortions where six organizational leaders signed a letter urging the group's members to participate in a “National Day of Rescue\"), aff'd in -part, rev'd in part on other grounds, 961 F.2d 390 (2d Cir.1992). . The testimony" }, { "docid": "10558835", "title": "", "text": "March 9, 1990. Settle orders on notice. . The history of this action is recounted in two prior published opinions of this Court, the first, dated October 27, 1988, and reported at 697 F.Supp. 1324 (1988) (holding defendants Randall Terry and Operation Rescue in civil contempt for violation of the Court’s May 4, 1988 order), and the second, dated January 20, 1989, and reported at 704 F.Supp. 1247 (1989) (granting a permanent injunction prohibiting the blocking of access to facilities that perform abortion), as well as in the Second Circuit’s opinion, dated September 20, 1989, and reported at 886 F.2d 1339 (2d Cir.1989) (affirming the Court’s various orders in this action as modified to provide that contempt fines were to be paid into the court, not to plaintiffs). . Two additional individuals, Dan Brusstar and John Hinshaw, were named in the Order to Show Cause as respondents, but were not included in plaintiffs’ proof of service, filed July 13, 1989, and plaintiffs no longer argue that these individuals are subject to the instant contempt proceeding. Christopher Slattery (\"Slattery”), another individual originally named in the Order to Show Cause, was later served with a subsequent Order to Show Cause to hold him in civil contempt. Slattery has disputed certain facts concerning his alleged violation of the Court’s orders, and this matter is currently pending before the Court. . Ordinarily a hearing is required before a court may award civil contempt sanctions. Where there are no material facts in dispute, however, no hearing is necessary. United States v. City of Yonkers, 856 F.2d 444, 453 (2d Cir.1988) (need for plaintiffs to present evidence establishing defendants’ contempt was obviated by undisputed representation that defendants had violated court’s order); Parker Pen Co. v. Greenglass, 206 F.Supp. 796, 797 (S.D.N.Y.1962); 11 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2960, at 590 (1973). . As the Court of Appeals explained in upholding the prior contempt finding against Operation Rescue and Terry: Faced on May 5, 1988 with a choice between compliance or noncompliance with the district court’s order, defendants chose the latter" } ]

[ { "docid": "22785213", "title": "", "text": "not have had the purpose or effect “of depriving the employer of his bargain.” Ante, at 408. If the sympathy strike in this case violates the Union’s no-strike pledge, the same public interest in an enforceable quid pro quo is present here as in Boys Markets. The Union contends, however, that this strike did not violate its contract, or at least, that it has not yet been decided that it does. Accordingly, this portion of the rationale of Boys Markets applies only to the extent of the certainty that the sympathy strike falls within the no-strike clause. Third, the Court relied upon a line of cases in which the language of the Norris-LaGuardia Act had not been given controlling effect. Several decisions had held that the federal courts could issue injunctions in labor disputes to compel employers and unions to fulfill their obligations under the Railway Labor Act, notwithstanding “the earlier and more general provisions of the Norris-LaGuardia Act.” Virginian R. Co. v. System Federation, 300 U. S. 515, 563. Accord, Railroad Trainmen v. Howard, 343 U. S. 768, 774; Graham v. Locomotive Firemen, 338 U. S. 232, 237-240. These decisions culminated in Railroad Trainmen v. Chicago, R. & I. R. Co., 353 U. S. 30, 39-42, which held that a federal court could enjoin a strike by a railroad union over a dispute subject to mandatory arbitration under the Railway Labor Act. The Norris-LaGuardia Act was held not to bar the injunction because of “the need to accommodate two statutes, when both were adopted as a part of a pattern of labor legislation.” Id., at 42. See Chicago & N. W. R. Co. v. Transportation Union, 402 U. S. 570, 581-584. In Textile Workers v. Lincoln Mills, 353 U. S. 448, the Court relied on the same rationale to hold that § 301 (a) of the Labor Management Relations Act conferred jurisdiction upon the district courts to grant the union specific enforcement of an arbitration clause in a collective-bargaining agreement. Speaking for the Court, Mr. Justice Douglas noted that the legislative history of § 301 (a) “is somewhat cloudy" } ]

[ { "docid": "23031982", "title": "", "text": "would produce a construction of § 13(c) that would substantially align with Congress’ contemporary views, the fact remains that Congress passed the Norris-LaGuardia Act to forestall judicial attempts to narrow labor’s statutory protection. Accordingly, we refuse to narrow the definition of “labor dispute” under § 13(c) to exclude those battles involving secondary activity. > i — 1 In certain limited circumstances, the Norris-LaGuardia Act does not prevent a court from enjoining violations of the specific mandate of another labor statute. Petitioners claim that the injunction here was valid because, under the RLA, it is illegal for a union to resort to secondary picketing after the parties have exhausted the major dispute resolution procedures. To evaluate this argument, we must briefly review the RLA. The Railway Labor Act “cannot be appreciated apart from the environment out of which it came and the purposes which it was designed to serve.” Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 751 (1945) (Frankfurter, J., dissenting). Following decades of labor unrest that persistently revealed the shortcomings of every legislative attempt to address the problems, representatives of railroad labor and management created a system for dispute resolution that Congress enacted as the RLA in 1926. The RLA subjects all railway disputes to virtually endless “negotiation, mediation, voluntary arbitration, and conciliation.” Detroit & Toledo Shore Line R. Co. v. Transportation Union, 396 U. S. 142, 148-149 (1969) (Shore Line). Moreover, the RLA requires all parties both “to exert every reasonable effort to make and maintain” collectively bargained agreements, § 2 First, and to abide by the terms of the most recent collective-bargaining agreement until all the settlement procedures provided by the RLA have been exhausted, §§ 5, 6, 10; see Shore Line, supra, at 150-153. Nevertheless, if the parties exhaust these procedures and remain at loggerheads, they may resort to self-help in attempting to resolve their dispute, subject only to such restrictions as may follow from the invocation of an Emergency Board under § 10 of the RLA. See Trainmen v. Jacksonville Terminal Co., supra, at 378-379 (citing “long line of decisions” upholding" }, { "docid": "23032004", "title": "", "text": "RLA. Id., at 246. Because the anti-injunction mandate of §4 was neither mentioned nor implicated by Florida East Coast, that decision does not bear on the question presented here. It is of course appropriate to construe a particular provision of an Act in light of the Act’s structure and purpose. United States v. Heirs of Boisdoré, 8 How. 113, 122 (1849); United States v. Hutcheson, 312 U. S., at 235. The inference that petitioners ask us to make, however, is different in character from inferences we have made in past cases involving the RLA and the Norris-LaGuardia Act. In Chicago River, for example, our point of departure was the express language of § 3 First, which unambiguously compelled arbitration of minor disputes; the only inference drawn was that a strike was incompatible with this explicit obligation. “[T]he Chicago River case [thus] held that a strike could be enjoined to prevent a plain violation of a basic command of the Railway Labor Act. . . .” Telegraphers v. Chicago & N. W. R. Co., 362 U. S., at 338-339. In the instant case, by contrast, there is no “basic command” of the RLA which the union can be said plainly to have violated. We are asked in this case to infer not only that a union’s duty to refrain from secondary activity is so crucial to the operation of the Act that it may be enforced by injunction, but also that such a duty exists. In Chicago & North Western, we began by noting that the express language of § 2 First creates a duty to “exert every reasonable effort” to settle disputes, The only inference we drew here was that this duty was a legal obligation enforceable by injunction under certain circumstances. The language of § 2 First does not contain, however, either an express proscription of secondary activity or a suggestion that the scope of self-help is limited. Our currently narrow exception to the Norris-LaGuardia Act’s prohibition on injunctions would expand to swallow the rule were we to permit courts to enforce by injunction the obligation petitioners infer here." }, { "docid": "23075597", "title": "", "text": "635, 1 L.Ed.2d 622 (1957); Elgin, Joliet & E. R. R. v. Burley, 325 U.S. 711, 724-725, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945); American Airlines, Inc. v. Air Line Pilots Ass’n, 169 F.Supp. 777, 787-788 (S.D.N.Y.1958); Comment, Enjoining Strikes and Maintaining the Status Quo in Railway Labor Disputes, 60 Colum.L.Rev. 381, 387-91 (1960). Not only is there no authority under the Act for enjoining a strike which is begun at such a time, but the express provisions of the Norris-La Guardia Act deprive the Federal courts of jurisdiction to issue such an injunction. Much has been written on the “accommodation” of the Norris-La Guardia Act to the Railway Labor Act, but the difficulties of “accommodation” arise only in connection with the compulsions of the Railway Labor Act. Where that Act prohibits (or directs) certain conduct and the Norris-La Guardia Act forbids an injunction, the contradiction between the two Acts must be reconciled. See Brotherhood of R. R. Trainmen v. Chicago River & I. R. R., supra, 353 U.S. at 40, 77 S.Ct. at 635; Chicago R. I. & P. R. R. v. Switchmen’s Union, supra, 292 F.2d at 65-66; Baltimore & O. R. R. v. United R. R. Workers, 271 F.2d 87, 92 (2d Cir. 1959), remanded on other grounds, 364 U.S. 278, 80 S.Ct. 1609, 4 L.Ed.2d 1719 (1960). But where no compulsion exists under the Railway Labor Act, because its procedures have been exhausted, there can be no question of “accommodation.” The limitations of the Norris-La Guardia Act are plainly applicable. Order of R. R. Telegraphers v. Chicago & N. W. Ry., 362 U.S. 330, 338-343, 80 S.Ct. 761, 4 L.Ed.2d 774 (1960); see Butte, Anaconda & Pac. Ry. v. Brotherhood of Locomotive Firemen, 268 F.2d 54 (9th Cir.), cert. denied, 361 U.S. 864, 80 S.Ct. 122, 4 L.Ed.2d 104 (1959). We do not understand that these propositions are disputed in the present case. Pan American seeks rather to avoid their application by demonstrating that the compulsions of the Railway Labor Act have not been exhausted. Pan American argues that the mediation procedures of the Act have" }, { "docid": "23031994", "title": "", "text": "attitudes toward labor in “the decades since the Norris-LaGuardia Act was passed has dissipated any legitimate concern about the impartiality of federal judges in disputes between labor and management.” Buffalo Forge Co. v. Steelworkers, 428 U. S. 397, 432 (1976) (Stevens, J., dissenting). But our decision in this case ultimately turns not on concerns of partiality, but on questions of power. In the Norris-LaGuardia Act, Congress divested federal courts of the power to enjoin secondary picketing in railway labor disputes. Congress has not seen fit to restore that power. Accordingly, we affirm the decision of the Court of Appeals. It is so ordered. Guilford unsuccessfully attempted to enjoin this extension of the strike. BMWE v. Guilford Industries, Inc., No. 86-0084-P (D Me. Apr. 2,1986). Consolidated Rail Carp. v. BMWE, Civ. No. 86-0318T (WDNY Apr. 6, 1986), vacated, 792 F. 2d 303 (CA2 1986), cert. pending, No. 86-353; Richmond, Fredericksburg & Potomac R. Co. v. BMWE, No. 86-3544 (CA4 Apr. 12, 1986), aff’d, 795 F. 2d 1161 (CA4 1986), cert. pending, No. 86-503. In the alternative, the District Court ruled that it had jurisdiction to issue an injunction because BMWE’s activity violated the Interstate Commerce Act. 49 U. S. C. § 11101(a). As the Court of Appeals explained, 793 F. 2d 795, 800 (CA7 1986), this alternative holding is without merit because “the Norris-LaGuardia Act’s ban on federal injunctions is not lifted because the conduct of the union is unlawful under some other, nonlabor statute.” Telegraphers v. Chicago & N. W. R. Co., 362 U. S. 330, 339 (1960). In addition, the District Court held that even if the secondary picketing grew out of a labor dispute for purposes of the Norris-LaGuardia Act, the secondary picketing could also be viewed as a major dispute under the RLA between BMWE and the secondary railroads; the picketing could then be enjoined because BMWE and these railroads had not yet exhausted the RLA’s major dispute procedures. The Court of Appeals rejected this argument, 793 F. 2d, at 799, and petitioners have not pursued it here. These developments do not moot this controversy. Because these" }, { "docid": "23031985", "title": "", "text": "a union once the RLA’s major dispute resolution procedures have been exhausted. They argue, however, that the drafters of the RLA did not need to insert an express prohibition of secondary picketing because in 1926 federal law clearly prohibited such picketing. Because language banning that which was already illegal would have been superfluous, petitioners construe the RLA to adopt the limits on self-help that existed at the time the RLA became law. Petitioners read too much, however, into the silence of the Act. The RLA’s silence could just as easily signify an intent to allow the parties to resort to whatever self-help is legally available at the time a dispute arises. Faced with a choice between the ambiguity in the RLA and the unambiguous mandate of the Norris-LaGuardia Act, we choose the latter. Indeed, this Court has already refused to find in the silence of the RLA an intent to prohibit secondary picketing. In Trainmen v. Jacksonville Terminal Co., supra, we held that state courts may not enjoin secondary picketing in a railway dispute after parties exhaust the RLA’s procedures. We noted that Congress had not provided the courts with the standards needed to distinguish primary from secondary picketing, and that “parties who have unsuccessfully exhausted the Railway Labor Act’s procedures for resolution of a major dispute . . . [may] employ the full range of whatever peaceful economic power they can muster, so long as its use conflicts with no other obligation imposed by federal law.” 394 U. S., at 392. We concluded that, in railway disputes, “until Congress acts, picketing — whether characterized as primary or secondary — must be deemed conduct protected against state proscription.” Id., at 392-393. Petitioners note that our decision in Trainmen v. Jacksonville Terminal Co. did not require us to determine the scope of federal-court injunctive power under the RLA, nor to assess the applicability of the Norris-LaGuardia Act to either the state- or federal-court injunctive power. See id., at 382, n. 18. Nevertheless, the primary rationale for our decision — that “we have been furnished by Congress neither usable standards nor access" }, { "docid": "22164146", "title": "", "text": "power to issue injunctions in labor disputes must be accommodated to the more specific provisions of the RLA: “[T]he District Court has jurisdiction and power to issue necessary injunctive orders” to enforce compliance with the requirements of the RLA “notwithstanding the provisions of the Norris-LaGuardia Act.” Trainmen v. Howard, 343 U. S. 768, 774 (1952). Thus, a union may be enjoined from striking when the dispute concerns the interpretation or application of its contract and is therefore subject to compulsory arbitration. Trainmen v. Chicago River & Indiana R. Co., 353 U. S. 30 (1957). “[T]he specific provisions of the Railway Labor Act take precedence over the more general provisions of the Norris-LaGuardia Act.” Id., at 41-42. The same accommodation of the NLGA to the specific provisions of the NLRA must be made. A union that has agreed to arbitrate contractual disputes and is subject to a no-strike clause may be enjoined from striking despite the NLGA. Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235 (1970). Petitioner contends that the NLGA must likewise be accommodated to the procedures mandated by Congress in 49 U. S. C. § 10901 specifically the authority of the ICC to impose labor protective provisions, the right of rail labor to seek such provisions from the ICC, and its right to judicial review if dissatisfied. It is urged that the ICA provides a comprehensive scheme for the resolution of labor protection issues arising out of ICC-regulated transactions and that rail labor must take advantage of those procedures rather than strike. We are unpersuaded that this is the case. The prohibition of the NLGA must give way when necessary to enforce a duty specifically imposed by another statute. But no applicable provision has been called to our attention that imposes any duty on rail unions to participate in ICC proceedings and to seek ICC protections with which they must be satisfied. Furthermore, labor protection provisions run against the acquiring railroad rather than the seller. Yet here it is with the seller, P&LE, that the unions wanted to bargain, seeking to ease the adverse consequences of the" }, { "docid": "23031983", "title": "", "text": "of every legislative attempt to address the problems, representatives of railroad labor and management created a system for dispute resolution that Congress enacted as the RLA in 1926. The RLA subjects all railway disputes to virtually endless “negotiation, mediation, voluntary arbitration, and conciliation.” Detroit & Toledo Shore Line R. Co. v. Transportation Union, 396 U. S. 142, 148-149 (1969) (Shore Line). Moreover, the RLA requires all parties both “to exert every reasonable effort to make and maintain” collectively bargained agreements, § 2 First, and to abide by the terms of the most recent collective-bargaining agreement until all the settlement procedures provided by the RLA have been exhausted, §§ 5, 6, 10; see Shore Line, supra, at 150-153. Nevertheless, if the parties exhaust these procedures and remain at loggerheads, they may resort to self-help in attempting to resolve their dispute, subject only to such restrictions as may follow from the invocation of an Emergency Board under § 10 of the RLA. See Trainmen v. Jacksonville Terminal Co., supra, at 378-379 (citing “long line of decisions” upholding parties’ right to self-help following exhaustion). If the RLA is to function as its framers intended, compliance with its mandates obviously is essential. To accommodate the competing demands of the RLA and the Norris-LaGuardia Act, our cases establish that the Norris-LaGuardia Act “does not deprive the federal court of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act. Virginian R. Co. v. [Railway Employees], 300 U. S. 515; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U. S. 232.” Machinists v. Street, 367 U. S., at 772-773; see also Chicago & N. W. R. Co. v. Transportation Union, 402 U. S. 570, 581-582 (1971). This exception is necessarily a limited one. Even when a violation of a specific mandate of the RLA is shown, “[cjourts should hesitate to fix upon the injunctive remedy . . . unless that remedy alone can effectively guard the plaintiff’s right.” Machinists, supra, at 773. Petitioners concede, as they must, that the RLA does not contain an express mandate limiting the scope of self-help available to" }, { "docid": "6620065", "title": "", "text": "legislative history shows that the “over-all policy of the Norris-LaGuardia Act [and the RLA] was the same.” Both Acts promote the free association of union groups and both favor the resolution of labor disputes through non-judicial means. This unity of purpose is especially clear in the Norris-LaGuardia Act’s “clean hands” provision, 29 U.S.C. § 108 (1982), which disallows the issuance of an injunction in favor of any party “who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.” See id. The foregoing purposes in mind, courts quickly came to the conclusion that the broad and outspoken policy of the Norris-LaGuardia Act could give way to the previously enacted Railway Labor Act only in unambiguous situations. Burlington Northern Railroad Co. v. Brotherhood of Maintenance of Way Employes, 481 U.S. 429, 107 S.Ct. 1841, 1851, 95 L.Ed.2d 381 (1987) (The RLA’s exception to the Norris-LaGuardia Act “is necessarily a limited one.”). The foregoing policies in mind, this Court now addresses the facts of this case. FINDINGS OF FACT In addressing the question presented this Court by the Eleventh Circuit — whether ALPA’s claimed sympathy strike is a mere pretext for its own self-help — any factual determination must take into consideration the aforementioned legislative intent and must recognize that only a clear factual situation (one which minimizes judicial intrusion into assessment of the beneficiality and motives of concerted labor activity) can give rise to an exception to the Norris-La-Guardia Act. In its remand to this Court, the Eleventh Circuit suggested the degree of clarity of evidence required in order to fit an exception to the Norris-LaGuardia Act’s prohibition, when it instructed that “[u]nambiguous violations of the RLA can be enjoined in federal court.” Eastern Air Lines v. Air Line Pilots Association, No. 89-5229 (11th Cir. Mar. 24, 1989) (order of limited remand). To employ anything other than this strict standard, or to rule as to the predominant purpose of ALPA’s actions and inquire, where unclear, into the minds of the pilots or its" }, { "docid": "10929608", "title": "", "text": "enjoined by this injunction, and shall discipline those who engage in such conduct. Alton & Southern, 888 F.Supp. at 766. Although the language in the Court’s injunction is quite similar to the language proposed by the plaintiffs, the union never challenged the proposed language prior to the issuance of the injunction. Now, however, the BMWE asserts that the above-quoted portion of the Court’s injunction is overly broad. It argues that by requiring the BMWE to take reasonable efforts to prevent its members from violating the injunction and by requiring the union to discipline those who violate the injunction, the Court has violated the Norris-LaGuardia Act. The BMWE argues that there is no evidentiary basis for the Court’s decision to direct the union to take affirmative actions to enforce the order. The Court has carefully considered the BMWE’s arguments and finds them to be without merit. In this case, the Court does not consider its injunction to be overly broad or to conflict with the Norris-LaGuardia Act. However, even if some conflict existed, the Supreme Court has made it clear that competing provisions of the Norris-LaGuardia Act must yield to the demands of the RLA. Although the BMWE relies heavily upon the text of the Norris-LaGuardia Act and cases interpreting the Act, the union appears to ignore the Supreme Court’s statement that: the Norris-LaGuardia Act cannot be read alone in matters dealing with railway labor disputes. There must be an accommodation of that statute and the Railway Labor Act so that the obvious purpose in the enactment of each is preserved. Brotherhood of R.R. Trainmen v. Chicago River & Indiana R.R. Co., 353 U.S. 30, 40, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957). Here, when read in light of the RLA, the Norris-LaGuardia Act provides no bar to the Court’s injunction. As this Court noted when it granted the plaintiffs’ request for a preliminary injunction, the purpose of the RLA is to prevent railroad strikes' and interruptions to interstate commerce. Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 148, 90 S.Ct. 294, 298, 24" }, { "docid": "3123139", "title": "", "text": "The defendants were employed by a “common carrier by motor vehicle” on the “highways” of Nevada. They are hence governed by the Motor Carriers Act, though their employer is a receiver. That is to say, that so far as concerns the general regulations applying to the receiver’s truck drivers, he was under the control of the Interstate Commerce Commission and not of the district court. The district court did not rely on any contention that the Norris-LaGuardia Act does not apply where employers, other than carriers under the Railway Labor Act, have brought or had their companies brought into a federal receivership and transferred the employer status to a receiver. Nor is there any contention that the Norris-LaGuardia Act would not prevent an injunction against the employees because of violence or any other of the exceptions of the Act. However, it has been suggested elsewhere that employers can escape the provisions against enjoining peaceful striking or picketing if their enterprises can be brought within a federal receivership. We can find no case supporting such an interpretation of the Norris-LaGuardia Act. It prohibits injunctions “in any case involving or growing out of cmy labor dispute.” It provides that “No court of the United States shall have jurisdiction to issue” such injunctions. There is no exception of “any case” or “any labor dispute” in receivership proceedings. It applies to the injunctions of every court. Its more recently enacted particular provisions control and limit the prior general power of federal courts to issue injunctions of Section 262 of the Judicial Code, 28 U.S.C.A. 377. The Norris-LaGuardia Act was passed seven years after the Railway Labor Act, recognizing an existing right to strike by employees of railroad receivers, if its arbitral provisions have failed to produce an agreement. It was followed in 1935 by the Motor Carriers Act, also, as shown above, recognizing receiver employees as within its provisions. Apart from the clear provisions of the Norris-LaGuardia Act, we see no reason why Congress should deprive the federal courts of the right of enjoining striking and picketing in industrial disputes, where the enterprise is" }, { "docid": "10929609", "title": "", "text": "has made it clear that competing provisions of the Norris-LaGuardia Act must yield to the demands of the RLA. Although the BMWE relies heavily upon the text of the Norris-LaGuardia Act and cases interpreting the Act, the union appears to ignore the Supreme Court’s statement that: the Norris-LaGuardia Act cannot be read alone in matters dealing with railway labor disputes. There must be an accommodation of that statute and the Railway Labor Act so that the obvious purpose in the enactment of each is preserved. Brotherhood of R.R. Trainmen v. Chicago River & Indiana R.R. Co., 353 U.S. 30, 40, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957). Here, when read in light of the RLA, the Norris-LaGuardia Act provides no bar to the Court’s injunction. As this Court noted when it granted the plaintiffs’ request for a preliminary injunction, the purpose of the RLA is to prevent railroad strikes' and interruptions to interstate commerce. Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 148, 90 S.Ct. 294, 298, 24 L.Ed.2d 325 (1969). The purpose of § 9 of the Norris-LaGuardia Act, on the other hand, is to “forbid blanket injunctions against labor unions, which are usually prohibitory in form, and to confine the injunction to the particular act complained of and found by the court.” Virginian Ry. Co. v. System Fed’n No. 40, 300 U.S. 515, 563, 57 S.Ct. 592, 607, 81 L.Ed. 789 (1937). The Court finds that its injunction is sufficiently confined to the act complained of in the plaintiffs’ complaint because it only enjoins self help relating to the disputes arising from the § 6 notices served in the most recent round of collective bargaining. It is not the type of blanket injunction that is prohibited by the Norris-LaGuardia Act. To the extent that the injunction requires affirmative action on the part of the union, this affirmative action is required to further the RLA’s purpose of preventing interruptions in interstate commerce. The evidence presented to the Court in written materials and at the April 26, 1995, hearing established a sufficient basis" }, { "docid": "23031981", "title": "", "text": "cosmic principles announce the existence of secondary conduct, condemn it as an evil, or delimit its boundaries. These tasks were first undertaken by judges, intermixing metaphysics with their notions of social and economic policy. And the common law of labor relations . . . has drawn no lines more arbitrary, tenuous, and shifting than those separating ‘primary’ from ‘secondary’ activities.” For the railway industry, unlike other industries covered by the National Labor Relations Act (NLRA), Congress has provided “neither usable standards nor access to administrative expertise” to facilitate the difficult task of distinguishing primary and secondary activity. Id., at 392. Given the inherent indeterminacy of these concepts and the lack of congressional guidance, it is obvious that any judicial attempt to limit the language of § 13 would make “the lawfulness of a strike . . . depend upon judicial views of social and economic policy.” Jacksonville Bulk Terminals, Inc., supra, at 715. Even if we were confident that our mixture of metaphysics and social policy, unlike that of our predecessors earlier in this century, would produce a construction of § 13(c) that would substantially align with Congress’ contemporary views, the fact remains that Congress passed the Norris-LaGuardia Act to forestall judicial attempts to narrow labor’s statutory protection. Accordingly, we refuse to narrow the definition of “labor dispute” under § 13(c) to exclude those battles involving secondary activity. > i — 1 In certain limited circumstances, the Norris-LaGuardia Act does not prevent a court from enjoining violations of the specific mandate of another labor statute. Petitioners claim that the injunction here was valid because, under the RLA, it is illegal for a union to resort to secondary picketing after the parties have exhausted the major dispute resolution procedures. To evaluate this argument, we must briefly review the RLA. The Railway Labor Act “cannot be appreciated apart from the environment out of which it came and the purposes which it was designed to serve.” Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 751 (1945) (Frankfurter, J., dissenting). Following decades of labor unrest that persistently revealed the shortcomings" }, { "docid": "3612020", "title": "", "text": "1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). These cases made clear the federal labor policy favoring arbitration under the NLRA. . The RLA \"contains 'no general provision prohibiting a party from acting unilaterally upon its interpretation of the contract pending exhaustion of the grievance procedures,’ if indeed the dispute is a 'minor' one involving disagreement on the interpretation of the collective bargaining agreement, as to which strike action interrupting commerce is precluded by the statutory scheme.” International Association of Machinists v. Frontier Airlines, 664 F.2d 538, 541 (5th Cir.1981) (quoting Brotherhood of Locomotive Firemen and Enginemen v. Southern Pacific Co., 447 F.2d 1127, 1132 (5th Cir.1971) (additional citation omitted). Injunctions may be appropriate to preserve the status quo pending arbitration under the RLA in certain limited instances. See note 38 infra; Frontier Airlines, 664 F.2d at 541. The Norris-LaGuardia Act, 29 U.S.C. §§ 101, 104, bars federal courts from issuing injunctions against unions in labor disputes. Under the NLRA, the Court has carved narrow exceptions out of the Norris-LaGuardia Act. See Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). The structure of the RLA demands federal court involvement to preserve the status quo in major disputes pending completion of the mediation process, and in narrow instances pending arbitration. Thus, the Court has held carefully that the Norris-LaGuardia Act “does not deprive [a] federal court of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act.” Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937), quoted in Burlington Northern v. Brotherhood of Maintenance of Way Employees, 481 U.S. 429, 445, 107 S.Ct.1841, 1851, 95 L.Ed.2d 381, 398 (1987). . The March, 1989 strike of Eastern Airlines by the International Association of Machinists resulted from the exhaustion of procedures in the major dispute process. See. e.g., Daily Labor Report No. 44 (March 8, 1989) (available on LEXIS, Labor Library, Dlabrt file). . For example, under a hypothetical collective" }, { "docid": "21554043", "title": "", "text": "issuing injunctions to enforce positive duties imposed by other federal labor statutes. See, e.g., Brotherhood of R.R. Trainmen v. Chicago River & Ind. Ry., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957) (union’s statutory duty to arbitrate “minor disputes” under the Railway Labor Act); Brotherhood of R.R. Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952) (union’s duty under RLA not to discriminate against non-union black train porters); Graham v. Brotherhood of Locomotive Firemen & Eng’rs, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22 (1949) (union’s duty under RLA, as the exclusive bargaining representative, to provide nondiscriminatory representation); Virginian Ry. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937) (employer’s duty under RLA to recognize and negotiate with the duly accredited labor representative). The preliminary injunction granted below cannot be sustained on the rationale of any of these existing exceptions to the Act. Camping concedes as much, but asserts that we should make a new accommodation, one it considers similar. This argument is based not on the necessity of accommodating the 1934 legislation to the policies reflected in some newer federal statute, but rather on the employer’s view of the policy behind the Norris-LaGuardia Act itself. According to Camping: The Norris LaGuardia Act was enacted in response to the use of injunctions as a weapon against employee concerted activity. (Section 2, 29 U.S.C. § 102). Historically, injunctions prohibiting such concerted activity often had the effect of tipping the balance in favor of one or the other of the parties to a labor dispute, since strikes and other concerted activity were time-sensitive_ In this case, the underlying policy behind the Norris La-Guardia Act is not called into play, since concerted activity is not involved. Thus, Camping would apparently have us hold that the Act protects only strikes, or other disruptive group conduct. The employer cites no authority for this policy analysis, and we find no support for it in federal labor law. In fact, a host of considerations militate against Camping’s proposal that the Norris-LaGuardia Act be limited" }, { "docid": "12908522", "title": "", "text": "working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof. 45 U.S.C. § 152 First (1982); see Chicago & North Western Ry. Co. v. United Transp. Union, 402 U.S. 570, 575-77, 91 S.Ct. 1731, 1734r-35, 29 L.Ed.2d 187 (1971) (RLA § 2 First expresses legal mandate rather than policy exhortation). In order to carry out this purpose, the RLA establishes elaborate procedures for resolving disputes in the industries to which it applies. The Norris-LaGuardia Act, 29 U.S.C. §§ 101-115 (1982 & Supp. IV 1986), is in tension with the RLA. Section 1 of the Norris-LaGuardia Act provides: No court of the United States ... shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of [the Norris-LaGuardia Act]; nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in [the Norris-La-Guardia Act]. 29 U.S.C. § 101 (1982). The Supreme Court has accommodated the competing demands of the RLA and the Norris-LaGuardia Act by holding that the latter “ ‘does not deprive the federal court of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act.’ ” Burlington Northern R.R. Co. v. Brotherhood of Maintenance of Way Employes, 481 U.S. 429, 445, 107 S.Ct. 1841, 1851, 95 L.Ed.2d 381 (1987) (quoting International Ass’n of Machinists v. Street, 367 U.S. 740, 772, 81 S.Ct. 1784, 1801, 6 L.Ed.2d 1141 (1961)). As the Court more fully stated in Brotherhood of R.R. Trainmen v. Chicago River & Indiana R.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957): We hold that the Norris-LaGuardia Act cannot be read alone in matters dealing with railway labor disputes. There must be an accommodation of that statute and the Railway Labor Act so that the obvious purpose in" }, { "docid": "23031984", "title": "", "text": "parties’ right to self-help following exhaustion). If the RLA is to function as its framers intended, compliance with its mandates obviously is essential. To accommodate the competing demands of the RLA and the Norris-LaGuardia Act, our cases establish that the Norris-LaGuardia Act “does not deprive the federal court of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act. Virginian R. Co. v. [Railway Employees], 300 U. S. 515; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U. S. 232.” Machinists v. Street, 367 U. S., at 772-773; see also Chicago & N. W. R. Co. v. Transportation Union, 402 U. S. 570, 581-582 (1971). This exception is necessarily a limited one. Even when a violation of a specific mandate of the RLA is shown, “[cjourts should hesitate to fix upon the injunctive remedy . . . unless that remedy alone can effectively guard the plaintiff’s right.” Machinists, supra, at 773. Petitioners concede, as they must, that the RLA does not contain an express mandate limiting the scope of self-help available to a union once the RLA’s major dispute resolution procedures have been exhausted. They argue, however, that the drafters of the RLA did not need to insert an express prohibition of secondary picketing because in 1926 federal law clearly prohibited such picketing. Because language banning that which was already illegal would have been superfluous, petitioners construe the RLA to adopt the limits on self-help that existed at the time the RLA became law. Petitioners read too much, however, into the silence of the Act. The RLA’s silence could just as easily signify an intent to allow the parties to resort to whatever self-help is legally available at the time a dispute arises. Faced with a choice between the ambiguity in the RLA and the unambiguous mandate of the Norris-LaGuardia Act, we choose the latter. Indeed, this Court has already refused to find in the silence of the RLA an intent to prohibit secondary picketing. In Trainmen v. Jacksonville Terminal Co., supra, we held that state courts may not enjoin secondary picketing in a railway dispute after" }, { "docid": "12908521", "title": "", "text": "herein-above indicated. Discussion On an appeal from the grant of a preliminary injunction, we disturb the relief afforded by the district court only upon a showing either of abuse of the district court’s discretion, see Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2567-68, 45 L.Ed.2d 648 (1975), or a clear mistake of law, see Seaboard World Airlines, Inc. v. Tiger Int’l, Inc., 600 F.2d 355, 360 (2d Cir.1979); see also Consolidated Rail Corp. v. Brotherhood of Maintenance of Way Employees, 792 F.2d 303, 304-05 (2d Cir.1986) (vacating preliminary injunction enjoining secondary picketing because of district court’s clear legal error); Emery Air Freight Corp. v. Local Union 295, 449 F.2d 586, 591 (2d Cir.1971) (same), cert. denied, 405 U.S. 1066, 92 S.Ct. 1500, 31 L.Ed.2d 796 (1972). A. The Railway Labor Act and the Norris-LaGuardia Act. Section 2 First of the RLA provides: It shall be the duty of all carriers ... and [their] employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof. 45 U.S.C. § 152 First (1982); see Chicago & North Western Ry. Co. v. United Transp. Union, 402 U.S. 570, 575-77, 91 S.Ct. 1731, 1734r-35, 29 L.Ed.2d 187 (1971) (RLA § 2 First expresses legal mandate rather than policy exhortation). In order to carry out this purpose, the RLA establishes elaborate procedures for resolving disputes in the industries to which it applies. The Norris-LaGuardia Act, 29 U.S.C. §§ 101-115 (1982 & Supp. IV 1986), is in tension with the RLA. Section 1 of the Norris-LaGuardia Act provides: No court of the United States ... shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of [the Norris-LaGuardia Act];" }, { "docid": "23032000", "title": "", "text": "a “command to the employer to ‘treat with’ the authorized representative of the employees,” and that this legal obligation was enforceable in equity notwithstanding the Norris-LaGuardia Act. 300 U. S., at 646-547, 662-563. In Graham, the Court held that federal courts may enjoin compliance with the “Railway Labor Act provisions insuring [employees’] right to nondiscriminatory representation by their bargaining agent.” 338 U. S., at 240; see also Steele v. Louisville & Nashville R. Co., 323 U. S. 192, 199-203 (1944). Similarly, in Detroit & Toledo Shore Line R. Co. v. Transportation Union, 396 U. S. 142 (1969), the Court held that federal courts could enjoin parties to adhere to the status quo requirement embodied in the specific language of §§ 5, 6, and 10 of the RLA. Petitioners argue that the legislative history of the Norris-LaGuardia Act supports this view. As we noted supra, at 439-440, however, Congress rejected Representative Beck’s amendment exempting railroads from the Norris-LaGuardia Act. Petitioners argue that Congress did so on the understanding that secondary picketing was already illegal under the Railway Labor Act and that nothing in the Norris-LaGuardia Act would change that. Reply Brief for Petitioners 14-17. But nowhere in the legislative debates does any Representative state that secondary activity is illegal under the RLA. Rather, in response to Representative Beck’s proposed amendment, Representative LaGuardia stressed that the RLA “provided the machinery ... for settling labor disputes,” and that the RLA “takes care of the whole labor situation pertaining to the railroads.” 75 Cong. Rec. 5499 (1932). These statements do not necessarily imply that the RLA bans secondary activity, but rather suggest that the RLA’s dispute resolution procedures already provided a mechanism by which to avoid secondary activity in the railway industry. We thus are not persuaded that Congress rejected Representative Beck’s amendment on the understanding that courts had the power under the RLA to enjoin secondary picketing during the period of self-help. The circumstances surrounding the passage of the RLA suggest another reason to reject petitioners’ construction. Unlike the legislation that preceded it, the RLA was negotiated and agreed to by the railroads" }, { "docid": "18788073", "title": "", "text": "1012 (1938)). If secondary activity resting on political motives is within the Act’s scope, as the Court suggested, then we think it follows a fortiori that the secondary activity at issue in this case is also covered. II Our conclusion that this case “involves or grows out of a labor dispute,” however, does not constitute the end of the matter. The Supreme Court has recognized that the Norris-LaGuardia Act’s anti-injunction provisions must be accommodated in certain instances to the mandate of other federal labor statutes. See, e.g., Boys Market, Inc. v. Retail Clerks Union Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). In this regard, federal courts retain the power to compel compliance with the dispute resolution mechanisms of the Railway Labor Act, 45 U.S.C. § 151 et seq. (1982) (“RLA”). See Brotherhood of R.R. Trainmen v. Chicago River & I. R.R., 353 U.S. 30, 39-42, 77 S.Ct. 635, 639-41, 1 L.Ed.2d 622 (1957); Chicago & N.W. Ry. v. United Transp. Union, 402 U.S. 570, 581-84, 91 S.Ct. 1731, 1737-39, 29 L.Ed.2d 187 (1971). This exception to the Norris-LaGuardia Act is a narrow one, however, applicable only where injunctive relief is “the only practical, effective means” of enforcing the procedural duties imposed upon parties by the RLA. Id. at 583, 91 S.Ct. at 1738. The dispositive issue in this case, then, is whether BMWE was required to attempt to settle its “dispute” with Central Vermont through the statutory mediation procedures before resorting to self-help. Central Vermont’s controversy with BMWE clearly is not a typical dispute contemplated by the RLA’s settlement procedures. The RLA generally provides for mediation of “major” disputes, which concern proposed changes in terms and conditions of employment, see 45 U.S.C. § 155 (First) (1982), and for adjustment of “minor” disputes, which concern the interpretation or application of agreements, see id. § 153 (First) (i). The instant “dispute” is neither of these. The picketing of which Central Vermont complains is being conducted by individuals who are not its employees and with whom it has no bargaining relationship. The amici railroads nonetheless contend that secondary" }, { "docid": "10767744", "title": "", "text": "on two occasions, and characterized the bargaining as “obstinate and unyielding” but not in violation of the statute- „ ry standards. We do not hold that a union’s insistence on proposals of the kind involved here could never be the basis for a finding that a union did not comply with its obligations under section 152 First; but in this case the district court’s finding is not clearly erroneous. Cf. REA Express, Inc. v. Brotherhood of Railway Clerks, 358 F.Supp. 760, 772 n.43 (S.D.N.Y.1971) and cases cited therein. Cf. also Atlantic Coast Line R. R. v. Brotherhood of Railway Trainmen, 262 F.Supp. 177, 183-85 (D.D.C.1967). We are confronted, then, with TIA’s argument that injunctive relief against the primary strike was appropriate because of language contained in the collective bargaining agreement. The Teamsters argue that the district court lacked jurisdiction to issue the injunction by reason of section 4 of the Norris-LaGuardia Act, 29 U.S.C. § 104, maintaining that once the major dispute mechanisms of the RLA had been exhausted, the unions could not be enjoined from using their full economic power in support of their demands. We agree. The accommodation reached between the Norris-LaGuardia Act and the National Labor Relations Act does not necessarily carry over to disputes controlled by the RLA. In this regard, the Supreme Court has stated: “The relationship of labor and management in the railroad industry has developed on a pattern different from other industries. The fundamental premises and principles of the Railway Labor Act are not the same as those which form the bases of the [NLRA] . . .” Brotherhood of Railroad Trainmen v. Chicago River & I. R. R., 353 U.S. 30, 31-32 n.2, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957). On the other hand, in cases which present difficult questions under the RLA but do not require statutory interpretations that are unique to the mechanisms of that Act, the doctrines developed by Congress and the courts from their experience in questions of labor law policy generally are instructive. For an analogy, and to determine national labor policy, it is appropriate to refer" } ]

[ { "docid": "495115", "title": "", "text": "claim under Texas law as alleged here, the plaintiff must prove that “a safer alternative design existed.” Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex.2009). Thus, a fact finder must not only conclude that a safer alternative design existed, but further that the Generic Defendants breached their duty by failing to adopt that alternative design. But the Generic Defendants were prohibited by federal law from changing the design of the drug, and, therefore, no alternative design existed. As in Bartlett, the state law claim against the Generic Defendants is preempted because the state law claim is in direct conflict with the federal law. See Lashley, 2014 WL 661058, at *3 (holding that strict liability claims under Texas law are preempted). C. Eckhardt raises additional failure-to-warn claims, which are of a slightly different kind than the products liability claims discussed above. Specifically, Eckhardt asserts that he has alleged that the Generic Defendants failed to provide Eckhardt or his physician with any of the FDA-approved warnings. As failing to provide FDA-approved warnings would be a violation of both state and federal law, this is a parallel claim that is not preempted. Nevertheless, the district court was correct in dismissing the claim. Eckhardt simply does not adequately allege that the Generic Defendants failed to provide him with FDA-approved warnings. As the district court noted, this allegation was most clearly stated in Eckhardt’s response to the Generic Defendants’ motion to dismiss below. In that filing, Eckhardt alleges, “Generic Defendants never provided Plaintiff or his physicians with ANY warning or other information with regard to metoclopramide.” The district court held that this was a new factual allegation that was directly contradicted by Eckhardt’s second amended complaint. The district court interpreted the addition of a new factual allegation as a motion to amend and denied the motion, considering only the factual allegations in the second amended complaint. This denial was not an abuse of discretion. See Mayeaux v. La. Health Serv. and Indem. Co., 376 F.3d 420, 425 (5th Cir.2004) (“We review the district court’s denial of leave to amend a complaint ... for" } ]

[ { "docid": "17288009", "title": "", "text": "design for metoclopramide but rather should only be required to offer an alternative design for PLIVA’s label and that the FDA has already implemented one in the form of the 2009 Black Box Warning. The plaintiffs provide no authority in support of this argument. The law in South Carolina is that a plaintiff must demonstrate an alternative feasible design in a product liability action based on a design defect. The plaintiffs have not met their burden of producing such proof. Therefore, PLI-VA’s motion for summary judgment is GRANTED as to the plaintiffs’ design defect claim. See also Gerber v. Hoffmann-La Roche, Inc., 392 F.Supp.2d 907, 922 (S.D.Tex.2005) (granting summary judgment to manufacturer on plaintiffs design defect claim in products liability action involving prescription drug Accutane where plaintiff provided no evidence of a safer alternative design). 2. Manufacturing Defect Claim A manufacturing defect claim is an allegation “that a particular product was defectively manufactured.” Watson, 699 S.E.2d at 174. There is not an abundance of case law in South Carolina about how a manufacturing defect differs from other defects. Other courts have defined a manufacturing defect as existing “when a product does not conform to the design standards and blueprints of the manufacturer and the flaw makes the product more dangerous and therefore unfit for its intended or foreseeable uses.” See Gerber, 392 F.Supp.2d at 922 (internal quotation marks and citation omitted) (applying Texas law) (granting summary judgment to a manufacturer on a plaintiffs manufacturing defect claim in a products liability action involving prescription drug Accutane); see also Wheeler v. HO Sports, Inc., 232 F.3d 754, 757 (10th Cir.2000) (applying Oklahoma law) (“A product is defective in manufacture if it deviates in some material way from its design or performance standards. The issue is whether the product was rendered unsafe by an error in the manufacturing process,” which is “often established by showing that a product, as produced, failed to conform with the manufacturer’s specifications.” (internal quotation marks and citations omitted)); Wankier v. Crown Equip. Corp., 353 F.3d 862, 867 (10th Cir.2003) (applying Utah law) (holding that “a manufacturing defect claim," }, { "docid": "5881179", "title": "", "text": "complaint as facially insufficient.” Id. at 804. The court ruled that this argument was “unsupported by existing case law,” noting that “[i]t is well settled that to establish a claim predicated upon a design defect, plaintiffs must present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and that it was feasible to design the product in a safer manner.” Id. Because the plaintiffs had not adequately alleged a safer alternative design, the court dismissed their defective design claim. Id. at 804-05; see also Reed v. Pfizer, Inc., 839 F.Supp.2d 571, 578 (E.D.N.Y.2012) (granting drug manufacturer’s motion to dismiss plaintiffs’ design defect claim under New York and West Virginia law because “Plaintiffs do not plead facts alleging the existence of a feasible alternative design that would make the product safer”). DiBartolo’s eonclusory assertions in paragraphs 78 and 79 of her amended complaint, like the allegations in Sabater and Reed, fail to allege that defendant could have designed its drug more safely. in short, plaintiff fails to allege that Humira posed a substantial likelihood of harm as designed or that Abbott feasibly could have designed Humira more safely. Accordingly, defendant’s motion to dismiss is granted with respect to plaintiffs strict liability and negligent design defect claims. 3. Misrepresentation Plaintiff alleges causes of action for strict liability and negligent misrepresentation. Am. Compl. ¶¶ 78-79. Strict liability misrepresentation is described in section 402B of the Restatement (Second) of Torts: One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though (a) it is not made fraudulently or negligently, and (b) the consumer has not bought the chattel from or entered into any contractual relation with the seller. Restatement (Second) of Torts § 402B (1965). However, “New York has never adopted the strict liability approach set forth in Section" }, { "docid": "12810464", "title": "", "text": "that plaintiffs failure to warn claims were preempted by the 1969 Act insofar as they were based on post-1969 conduct, but did not recommend their dismissal because plaintiff asserted in his memo and at oral argument that the claims were based solely on pre-1969 conduct. See April 30, 1999 Report and Recommendation at 29-30 (“R & R”). Defendant argues that a finding of preemption mandates dismissal of the claims because, insofar as the failure to warn claims are based on pre-1969 conduct, plaintiff has not sufficiently alleged causation. This Court agrees with defendant. To prevail on the non-preempted failure to warn claim, plaintiff would have to establish causation on two levels: 1) that a pre-1969 warning would have induced him to stop smoking and 2) that his pre-1969 smoking was the proximate cause of his 1997 cancer. See Salk v. Alpine Ski Shop, Inc., 115 R.I. 309, 342 A.2d 622, 626 (1975). This Court has already concluded that plaintiff has not sufficiently alleged that his 1951-1964 smoking caused his 1997 cancer. Because an additional 5 years is only a fraction of plaintiffs smoking years, plaintiff has similarly not sufficiently pled the second level of causation. In addition, plaintiff has not specifically alleged the first level of causation beyond his general causation allegation quoted above. Consequently, this Court concludes that this is an alternate ground for granting the motion to dismiss the failure to warn claims. Safer Feasible Alternative Design Defendant argues that plaintiffs Complaint fails to state a claim of design defect, either in strict liability or negligence, because plaintiff has not alleged that a safer feasible alternative design exists for defendant’s cigarettes. To succeed on this theory, defendant must establish 1) that Rhode Island law requires a plaintiff to prove a safer feasible alternative design in order to prevail on a design defect claim and 2) that therefore, plaintiff must allege the existence of a specific safer feasible alternative design at the pleading stage to withstand a 12(b)(6) motion. Because there is no compelling support for either of these propositions, this Court rejects this contention. As noted above, a" }, { "docid": "3481063", "title": "", "text": "statutory] definitions of the key terms in the strict liability statute contain no requirement that a feasible and safer alternative be proven by the plaintiff and we see no reason to impose that requirement.”). “[U]nder Arkansas law the existence, practicality, and technological feasibility of an alternative safe design are not necessary elements of the plaintiffs cause of action, but rather are merely factors that may be considered by the jury in determining whether a product was supplied in a defective condition that rendered it unreasonably dangerous.” Id. at 298-99. Indeed, our review of Arkansas’s products liability law reveals that its general tendency is to submit such factual questions to the jury to weigh in light of all the evidence. See, e.g., Aderhold, 616 S.W.2d at 722-23 (whether “open and obvious” nature of danger posed by product and compliance with industry standard rendered design of product not defective were considerations for jury, not questions of law that could bar recovery); Hill, 884 F.2d at 1070 (whether prescription IUD was sufficiently socially important to fall within the exception for unavoidably unsafe products was not an appropriate question for summary judgment). We have recognized that when a plaintiffs sole proof of a defective design is the designer’s choice not to pursue a safer design, the evidentiary burden is on the plaintiff to show that the safer alternative design he advocates actually exists. Dancy v. Hyster Co., 127 F.3d 649, 653-54 (8th Cir.1997) (upholding a grant of summary judgment against a plaintiff who alleged that a lift truck was unreasonably dangerous because it lacked a safety device but failed to provide expert testimony to support the proposition that a feasible safety device existed). Arkansas law does not, however, require a plaintiff alleging defective design to point to a specific design flaw resulting in a product that poses a danger greater than that inherent in products of its kind. Buchanna v. Diehl Mach. Inc., 98 F.3d 366, 370 (8th Cir.1996) (Arkansas law does not require that a plaintiff show that a product poses a danger not posed by similar products in order to avoid summary" }, { "docid": "8330962", "title": "", "text": "allege a feasible alternative design to phenytoin. Assuming that the alternatives pled by plaintiff are completely different products from phenytoin, the risk-utility analysis for design defect cases recognizes that when considering whether an alternative safer design existed, the factfinder may consider the feasibility of an alternative design as well as the “availability of an effective substitute for the product which meets the same need but is safer.” Banks v. ICI Americas, Inc., 264 Ga. 732, 736 n. 6, 450 S.E.2d 671 (1994); see also Bryant, 262 Ga.App. at 409, 585 S.E.2d 723 (evaluating the risk utility factors of Banks in pharmaceutical drug context). Thus, plaintiffs allegations of substitute products for phenytoin may be sufficient under a risk-utility analysis. Therefore, the Court finds that plaintiff has sufficiently alleged a strict liability design defect claim against Pfizer. 5. Manufacturing Defect, against Pfizer & Mylan Pfizer moves to dismiss plaintiffs claim for a manufacturing defect asserting that pursuant to Georgia law, in manufacturing defect cases, “it is assumed that the design of the product is safe and had the product been manufactured in accordance with the design it would have been safe for consumer use.” Banks, 264 Ga. at 733, 450 S.E.2d 671. Pfizer argues that because plaintiff has not alleged that phenytoin was safe or that the specific medication ingested by the decedent deviated in construction or quality from any other phenytoin, plaintiff has not alleged a manufacturing defect claim. Plaintiff responds that she has not alleged a cause of action premised on any deviation in the manufacturing of phenytoin, and therefore, there is no manufacturing deviation claim to dismiss. However, plaintiffs amended complaint makes several references to a manufacturing defect, including the heading of her claim for strict liability. Thus, to be clear, the Court dismisses any manufacturing defect claims against defendants in light of Pfizer’s argument and plaintiffs assertion in her response brief. C. Count Three — Fraud, against Pfizer In its previous Order, the Court dismissed plaintiffs claim for fraud because plaintiff did not plead her claim with particularity sufficient to meet the standard of Fed.R.Civ.P. 9(b). Moore, 840" }, { "docid": "15874065", "title": "", "text": "Tompkins could not quit, even when he tried, because of an addiction to nicotine. This evidence and approach to the case undermine any claim that Mr. Tompkins relied on statements or representations issued by RJR. Absent evidence of rebanee, Plaintiffs’ cause of action for negligent misrepresentation necessarily must fail. 3. Whether Plaintiffs can prove negligent manufacture The “essence of ... a [negligent manufacturing] claim is that a product did not perform as intended because it was misconstrued.” David v. Makita U.S.A, Inc., 233 A.D.2d 145, 145, 649 N.Y.S.2d 149 (1st Dep’t 1996). The David court dismissed the plaintiffs’ claim because they had not alleged that the product in question failed to perform in accordance with its design. See id. Likewise, Plaintiffs do not allege that the Camel cigarettes smoked by Mr. Tompkins were defective when compared to the cigarette design. Camel cigarettes were designed to contain no filter. They were not intended to provide lower tar or to act as a “safer” cigarette. Accordingly, RJR is granted summary judgment in this regard. 4. Whether Plaintiffs can prove negligent design A negligent design claim must establish that a feasible alternate design could have been used. See Fane, 927 F.2d at 130 n. 3 (“ ‘In a design defect case the court is concerned with the balancing of the alternative designs available against the existing risk while taking into account the cost of the proposed alternative.’”) (quoting Lancaster Silo & Block Co. v. Northern Propane Gas Co., 75 A.D.2d 55, 62, 427 N.Y.S.2d 1009 (4th Dep’t 1980)); cf. David, 233 A.D.2d at 146, 649 N.Y.S.2d 149 (sustaining negligent design claim in part because fact questions existed as to the feasibility of a safer design). Yet as the Court noted with respect to the strict liability claim for design defect, Plaintiffs offer no proof of the feasibility of the alternate designs they advance. For the same reasons the strict liability claim fails, the negligent design defect claim must be dismissed. 5. Whether Plaintiffs can prove negligent testing Plaintiffs elaborate little on what forms the underlying basis for this claim. They cite no case" }, { "docid": "8330961", "title": "", "text": ". Plaintiff asserts that this phenytoin was manufactured, marketed, and/or distributed by Pfizer, or in the alternative, by Mylan. Therefore, plaintiff has sufficiently alleged a causal link between Pfizer’s phenytoin and the decedent’s injuries. Thus, plaintiff has alleged a plausible claim. See Iqbal, 129 S.Ct. at 1949. With regard to the factor of incapable of being made more safe, Pfizer argues that plaintiff has failed to identify a feasible alternative design of phenytoin. However, whether phenytoin was capable of being made more safe is an affirmative defense, and thus the burden rests with Pfizer. Swicegood, 2010 WL 1138455, at *5 (burden is on defendant to show that the drug could not be made safer). Although the burden rests with Pfizer, plaintiff alleges in her amended complaint that there are at least four (4) well known safer alternative products that are equally effective anticonvulsants, with a better safety profile, and with a lesser or no risk of SJS/TEN. Pfizer contends that these alternatives suggested by plaintiff are completely different products, and therefore, plaintiff has failed to allege a feasible alternative design to phenytoin. Assuming that the alternatives pled by plaintiff are completely different products from phenytoin, the risk-utility analysis for design defect cases recognizes that when considering whether an alternative safer design existed, the factfinder may consider the feasibility of an alternative design as well as the “availability of an effective substitute for the product which meets the same need but is safer.” Banks v. ICI Americas, Inc., 264 Ga. 732, 736 n. 6, 450 S.E.2d 671 (1994); see also Bryant, 262 Ga.App. at 409, 585 S.E.2d 723 (evaluating the risk utility factors of Banks in pharmaceutical drug context). Thus, plaintiffs allegations of substitute products for phenytoin may be sufficient under a risk-utility analysis. Therefore, the Court finds that plaintiff has sufficiently alleged a strict liability design defect claim against Pfizer. 5. Manufacturing Defect, against Pfizer & Mylan Pfizer moves to dismiss plaintiffs claim for a manufacturing defect asserting that pursuant to Georgia law, in manufacturing defect cases, “it is assumed that the design of the product is safe and had" }, { "docid": "12216892", "title": "", "text": "is not within the understanding of a lay person. Daub v. Daub, 629 N.E.2d 873, 878 (Ind.Ct.App.1994) (requiring expert testimony on issue of cause outside understanding of lay person); Owens v. Ford Motor Co., 297 F.Supp.2d 1099, 1103-04 (S.D.Ind.2003) (requiring expert testimony where existence of a defect depends on matters beyond understanding of lay person). The Piltches invoke both design defect and manufacturing defect theories in their suit. Cook v. Ford Motor Co., 913 N.E.2d 311, 819 (Ind.Ct.App.2009) (“A product may be defective within the meaning of the [Indiana Product Liability] Act because of a manufacturing flaw, a design defect, or a failure to warn of dangers in the product’s use.”). To demonstrate a design defect under Indiana law, “the plaintiff must compare the costs and benefits of alternative designs” and “show that another design not only could have prevented the injury but also was cost-effective under general negligence principles.” Pries v. Honda Motor Co., 31 F.3d 543, 545—46 (7th Cir.1994). Here, not only did the Piltches fail to produce alternative air bag designs, but they also failed to introduce expert testimony on the question of design defect. Without expert testimony, a lay jury would be unable to compare the costs and benefits of supposed alternative air bag designs with the Mountaineer’s actual air bag design. See Whitted v. General Motors Corp., 58 F.3d 1200, 1206 (7th Cir.1995) (affirming summary judgment where plaintiffs failed to present evidence of design defect and that an alternative design was cost effective). See also Hathaway, 903 F.Supp.2d at 675 (granting summary judgment against plaintiff’s design defect claim where plaintiff submitted no evidence indicating cost effectiveness of alternative design). Similarly, a lay jury would be unable to discern from circumstantial evidence whether another air bag design could have prevented the injury. Thus, without expert testimony, the Piltch-es’ design defect claim cannot survive summary judgment. The Piltches’ manufacturing defect claim fares no better. To demonstrate a manufacturing defect, the plaintiff must show that “the product ... deviates from its intended design.” Id. at 673 (applying Indiana law and citing Restatement (Third) of Torts: Products Liability §" }, { "docid": "5881178", "title": "", "text": "Additionally, plaintiff does not adequately allege that “it was feasible to design [Humira] in a safer manner.” Id. Plaintiff asserts that allegations of a safer alternative design are “implicit in the allegation of [the design defect] theory in ¶¶ 78-79 of the Amended Complaint.” Pi’s Opp’n 11. These paragraphs simply allege plaintiffs causes of action for strict liability and negligence, stating that “[a]dditional product liability theories include design defect,” Am. Compl. ¶ 78, and that “Abbott was negligent in the design and testing of the drug Humira,” id. ¶ 79. Essentially, plaintiff argues that it was unnecessary for her to include specific allegations that Abbott could have implemented an alternative design, and that it was sufficient simply to assert a claim for design defect. In fact, this argument has been squarely rejected by New York courts. The plaintiffs in Sabater ex rel. Santana v. Lead Industries Association, Inc., 183 Misc.2d 759, 704 N.Y.S.2d 800 (Sup.Ct.2000), like DiBartolo, had argued that “failure to plead an alternative safer design is not a proper ground to attack a complaint as facially insufficient.” Id. at 804. The court ruled that this argument was “unsupported by existing case law,” noting that “[i]t is well settled that to establish a claim predicated upon a design defect, plaintiffs must present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and that it was feasible to design the product in a safer manner.” Id. Because the plaintiffs had not adequately alleged a safer alternative design, the court dismissed their defective design claim. Id. at 804-05; see also Reed v. Pfizer, Inc., 839 F.Supp.2d 571, 578 (E.D.N.Y.2012) (granting drug manufacturer’s motion to dismiss plaintiffs’ design defect claim under New York and West Virginia law because “Plaintiffs do not plead facts alleging the existence of a feasible alternative design that would make the product safer”). DiBartolo’s eonclusory assertions in paragraphs 78 and 79 of her amended complaint, like the allegations in Sabater and Reed, fail to allege that defendant could have designed its drug more safely. in short, plaintiff fails to" }, { "docid": "21330974", "title": "", "text": "a safer design during the relevant time period. The Neases disagree, relying on a couple of district court opinions that suggest the West Virginia Supreme Court “has not stated one way or the other whether a design defect claim requires proof of a safer alternative design of the allegedly defective product.” Mullins v. Ethicon, Inc., 117 F.Supp.3d 810, 821 (S.D.W. Va. 2015) (internal quotation marks omitted); Keffer v. Wyeth, 791 F.Supp.2d 539, 547 (S.D.W. Va. 2011). While it is true that West Virginia law on the matter is not crystal clear, we agree with Ford that Morningstar “can only be read to require the production of evidence on reasonable alternative design, to gauge what ‘should have been.’ ” Restatement (Third) of Torts: Products Liability § 2, Reporter’s Note (1998). Although Morningstar does not use the phrase “alternative design,” a plaintiff in a design case, for all practical purposes, must identify an alternative design in order to establish the “state of the art.” See Church v. V.R. Wesson, 182 W.Va. 37, 385 S.E.2d 393, 396 (1989) (holding plaintiff in a defective design case failed to establish a prima facie case because plaintiffs expert identified an alternative design that was not feasible at the time of manufacture and thus failed to prove that defendant’s design was not “state of the art”). Sero testified that safer, proven design alternatives existed during the relevant time period that would have prevented Howard’s accident. One preferable alternative, according to Sero, incorporates a “nipple wipe” to clean contaminants off the cable as it moves. Another alternative identified by Sero utilizes a “boot” which blocks debris and grime from accumulating on the cable. And, a third alternative design that Sero believed would have prevented Howard’s accident simply had a larger gap between the guide tube and the casing cap. Sero pointed out that Ford had been using all of these alternative design features for many years by the time the 2001 Ranger was produced. Sero, however, performed no tests or studies to determine whether, in fact, these older, long-standing designs were involved in fewer binding incidents. According to" }, { "docid": "22176954", "title": "", "text": "a subset of products liability law. Although the Pennsylvania Supreme Court has not yet adopted the crashworthiness doctrine for products liability cases, we have predicted that it would do so in an appropriate case. See Habecker v. Clark Equipment Co., 942 F.2d 210 (3d Cir.1991)(“Habecker II”). To establish a cause of action on a theory of crashworthiness, a plaintiff must show: (1) the design of the product was defective; (2) an alternative, safer design that was practical existed; (3) what injuries, if any, the plaintiff would have received had the alternative design been used; and (4) the defective design caused or exacerbated specific injuries. Barker v. Deere and Co., 60 F.3d 158, 161 n. 3 (3d Cir.1995) (citation omitted). B. Negligent Failure to Test. Oddi alleged that Ford and Grumman were negligent for “[flailing to do adequate, necessary and proper testing of the vehicle prior to the sale which would have revealed the dangerous condition of the product.” Complaint, at ¶ 4r. Oddi refers to this theory of recovery as the tort of “negligent failure to test.” Oddi’s Br. at 26. He claims that its elements are as set forth in 1836 Callowhill Street v. Johnson Controls, Inc., 819 F.Supp. 460 (E.D.Pa.1993). Oddi argues that under 1886 Cal-loivhill Street he can recover under this theory if he establishes that: (1) the manufacturer has a duty to test its product; (2) the manufacturer breached that duty, i.e., the manufacturer did not test; and (3) the breach or the failure to test was the proximate cause of the plaintiffs injury. Oddi’s Br. at 26. In 1836 Calloiohill, the court made several assumptions for purposes of ruling on a motion for summary judgment. The court assumed that defendant’s product was defective, that the defect caused the alleged damage, and that the defendant had a duty to adequately test the defective product to discover the defect. Nevertheless, the court granted summary judgment to the defendant as to plaintiffs negligence claim. The court concluded that plaintiff did not “offer[ ] sufficient evidence of a breach of that duty [to] create a genuine dispute of fact.”" }, { "docid": "12810476", "title": "", "text": "Thus, this Court will not rely on Buonanno to predict that the Rhode Island Court will adopt section 2(b) of the Third Restatement. Even if Rhode Island adopted such a requirement, there is no support that a safer feasible alternative design must be pled specifically beyond identifying a problem with the product. No Rhode Island cases applying Section 402A, including Jackson, address pleading requirements. Two courts in jurisdictions that require proof of a safer feasible alternative design have concluded that, at the pleading stage, it is enough to allege that something is “wrong” with the product because a logical alternative design would be to fix it. See Kotler v. American Tobacco Co., 926 F.2d 1217, 1224 (1st Cir.1990)(applying Mass, law), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3019, 120 L.Ed.2d 891 (1992)(concluding that plaintiff must put forth evidence of a safer feasible alternative design to survive summary judgment, but noting without comment the district court’s conclusion that plaintiff had stated a design defect claim by alleging that defendant’s tobacco was “bad”); Thomas, 11 F.Supp.2d at 853 (noting that Mississippi law requires proof of a safer feasible alternative design, but concluding that “since the plaintiff is alleging that the defendants added harmful ingredients to the tobacco, it is possible that the plaintiff can prove a feasible design alternative would be to avoid adding such ingredients.”). As discussed below, plaintiff does make such allegations. Defendant cites no cases in which a motion to dismiss was granted based on a failure to allege a safer feasible alternative design. Instead, defendant’s argument seems to change course midstream. The only cases defendant cites that dismiss design defect claims on the pleadings, Buckingham v. R.J. Reynolds Tobacco Co., 142 N.H. 822, 713 A.2d 381 (1998) and Gianitsis v. American Brands, Inc., 685 F.Supp. 853 (D.N.H.1988)(applying N.H. law), are totally inapposite to this case. In both cases, the plaintiff was attempting to recover under the “risk/utility” theory, which provides that a product is defective if the risks associated with the product’s use outweigh the social value or utility of the product. See Buckingham, 713 A.2d" }, { "docid": "12810479", "title": "", "text": "danger from the design of defendant’s cigarette products outweighed the benefits obtained with the use of the products”), plaintiff also makes several allegations that there is something “wrong” with defendant’s cigarettes. See id. at ¶ 3.1.6.1 (“Insufficient reduction in tar and other carcinogens by dilution and filtration”); ¶ 3.1.6.4 (“Excessive in nicotine delivery”). For the above reasons, plaintiffs pleading, to the extent it alleges a defect in defendant’s cigarettes, would state a design defect claim were it not for the applicability of the common knowledge doctrine. Furthermore, the adoption of the Third Restatement in Rhode Island would not alter the analysis. The Restatement expressly states that it “takes no position regarding the requirements of local law concerning the adequacy of pleadings or pretrial demonstrations of genuine issues of fact. It does, however, assume that the plaintiff will have the opportunity to conduct reasonable discovery so as to ascertain whether an alternative design is practical.” Restatement (Third) of Torts: Products Liability § 2 cmt. f (1998). Therefore, using the same reasoning, an allegation that there is something wrong with the product would state a design defect claim under the Third Restatement because a plaintiff could eventually prove that a safer feasible alternative design would fix the problem. This Court notes that its conclusions in this section to this point essentially adopt Magistrate Judge Lovegreen’s recommendation on the issue of a safer feasible alternative design requirement. Contrary to defendant’s assertions, this Court does not read Judge Lovegreen’s Report as endorsing “categorical liability.” However, this Court declines to adopt Judge Lovegreen’s recommendation that defendant be sanctioned for its arguments on this issue. Federal Rule of Civil Procedure 11 provides that “the claims, defenses, and other legal contentions” contained in a party’s pleadings must be “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law[.]” Fed.R.Civ.P. 11(b)(2). Judge Lovegreen based his recommendation specifically on defendant’s assertion that Jackson establishes that a plaintiff must plead and prove a safer feasible alternative design in order to prevail on a design defect claim" }, { "docid": "15874066", "title": "", "text": "can prove negligent design A negligent design claim must establish that a feasible alternate design could have been used. See Fane, 927 F.2d at 130 n. 3 (“ ‘In a design defect case the court is concerned with the balancing of the alternative designs available against the existing risk while taking into account the cost of the proposed alternative.’”) (quoting Lancaster Silo & Block Co. v. Northern Propane Gas Co., 75 A.D.2d 55, 62, 427 N.Y.S.2d 1009 (4th Dep’t 1980)); cf. David, 233 A.D.2d at 146, 649 N.Y.S.2d 149 (sustaining negligent design claim in part because fact questions existed as to the feasibility of a safer design). Yet as the Court noted with respect to the strict liability claim for design defect, Plaintiffs offer no proof of the feasibility of the alternate designs they advance. For the same reasons the strict liability claim fails, the negligent design defect claim must be dismissed. 5. Whether Plaintiffs can prove negligent testing Plaintiffs elaborate little on what forms the underlying basis for this claim. They cite no case law in support of the cause of action, nor do they point to evidence beyond the expert report of Dr. Cummings. The report however, while it accuses RJR of hiding unfavorable results and refusing to incorporate processes that would have made cigarettes safer, indicates that RJR did in fact conduct tests on the safety of cigarettes. See Rep. of Dr. Cummings, App. to Pis.’ Mem. In Opp’n to Summ.J., Tab 2, Ex. B, at ¶¶ 4.2-4.5. Consequently, the Court finds no evidence to support a cause of action for negligent failure to test. Even if the Court were to find this particular negligence claim lends support to Plaintiffs’ claim for negligent design, such a claim nevertheless must fail because Plaintiffs fail to show how the benefits of research would have made for a feasible alternate design. Moreover, as RJR suggests, the allegation that RJR should have done more to publicize its testing results might bolster a failure to warn claim. Yet again, that cause of action has been shown to be vulnerable on summary judgment." }, { "docid": "17031035", "title": "", "text": "alternative, safer design, practicable under the circumstances, was available at the time the [products] were sold.” 8 F.3d at 1479; see also Brown v. Sears, Roebuck & Co., 328 F.3d 1274, 1279 (10th Cir.2003) (noting holding of Allen regarding standards for strict liability design defect claims under Utah law). Ms. Wankier argues that the Utah cases subsequent to Allen demonstrate that a Utah court would not require plaintiffs to prove an element of a safer, feasible alternative design as an element of a strict liability design defect claim. These cases stand for the following proposition: To plead a case of strict products liability against a manufacturer, a plaintiff must allege (1) that the product was unreasonably dangerous due to a defect or defective condition, (2) that the defect existed at the time the product was sold, and (3) that the defective condition was a cause of the plaintiffs injuries. Lamb v. B & B Amusements Corp., 869 P.2d 926, 929 (Utah 1993); see also House v. Armour of Am., Inc., 929 P.2d 340, 343, 344 (Utah 1996) (applying Restatement (Second) of Torts § 402A standard for strict liability and quoting comment i, regarding the doctrine of open and obvious danger); Burns v. Cannondale Bicycle Co., 876 P.2d 415, 418 (Utah App.1994). None of these cases are apposite because none involve design defect issues. Nor do any of the cases discuss or cite Allen. See House, 929 P.2d at 342 (duty to warn claim); Lamb, 869 P.2d at 929 (manufacturing defect claims); Bums, 876 P.2d at 416-17 (manufacturing defect claim). The very recent case of Schaerrer v. Stewart’s Plaza Pharmacy, Inc., 79 P.3d 922, 928 (Utah 2003), similarly recites the elements noted above, but like the earlier decisions does not reach the issue before us. The Schaerrer court concluded that the defendant in that case, a pharmacist mixing “fen-phen” capsules, was shielded by the “learned intermediary rule.” See id. These distinctions are consequential. In neither duty-to-warn claims nor manufacturing defect claims does the issue of a safer alternative design logically arise. A manufacturer or distributor may have a duty to warn" }, { "docid": "7726634", "title": "", "text": "729 N.Y.S.2d 503, 505-06 (2d Dep’t 2001); Sabater v. Lead Indus. Assoc., Inc., 183 Misc.2d 759, 704 N.Y.S.2d 800, 804 (N.Y.Sup.Ct.Bronx.Co.2000). Courts have noted that, for the purposes of analyzing a design defect claim, the theories of strict liability and negligence are virtually identical. See Searle v. Suburban Propane Div. of Quantum Chem. Corp., 263 A.D.2d 335, 700 N.Y.S.2d 588, 591 (3d Dep’t 2000) (“[I]n a design defect case, there is almost no difference between a prima facie case in negligence and one in strict liability.”) (quoting Denny v. Ford Motor Co., 87 N.Y.2d 248, 258, 639 N.Y.S.2d 250, 662 N.E.2d 730 (1995)). Ultimately, the inquiry in a design defect case “requires a fact finder to make a judgment about the manufacturer’s judgment” in choosing to design a product in a certain way. Denny, 87 N.Y.2d at 258, 639 N.Y.S.2d 250, 662 N.E.2d 730. I will therefore analyze plaintiffs’ negligence and strict liability claims for design defect under a single test: The plaintiff bears the burden of presenting evidence that (1) the product as designed posed a substantial likelihood of harm, (2) no feasible alternative existed, and (3) the defective design caused plaintiffs injury. See Voss, 59 N.Y.2d at 107-08, 463 N.Y.S.2d 398, 450 N.E.2d 204; Fane, 927 F.2d at 128. Generally, a plaintiff must also show that the defect existed at the time the product left the defendant’s control. First, a plaintiff must show that the product, as designed, poses a “substantial likelihood of harm.” Voss, 59 N.Y.2d at 108, 463 N.Y.S.2d 398, 450 N.E.2d 204. Second, plaintiffs must show that a safer, feasible design alternative existed at the time of manufacture. See Fane, 927 F.2d at 128; Ruthosky v. John Deere Co., 235 A.D.2d 620, 651 N.Y.S.2d 717, 719 (3rd Dep’t 1997) (stating that alternative designs must be “economically and technically feasible” when manufactured). These two prongs, grouped together, are often referred to as the risk-utility balancing test used to determine whether a product is defective or “unreasonably dangerous.” See Anderson v. Hedstrom Corp., 76 F.Supp.2d 422, 454 (S.D.N.Y.1999) (citing Cover v. Cohen, 61 N.Y.2d 261, 266-67, 473" }, { "docid": "17031034", "title": "", "text": "attempt to predict what the state’s highest court would do. In performing this ventriloquiál function, however, the federal court is bound by ordinary principles of stare decisis. Thus, when a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state’s highest court has resolved the issue. Id.; see Koch v. Koch Indus., Inc., 203 F.3d 1202, 1231 (10th Cir.2000). The Utah Supreme Court adopted the doctrine of strict products liability, as defined in Section 402A of the Restatement (Second) of Torts, in Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152, 158 (Utah 1979). But it has not addressed whether the plaintiff bears the burden of showing a safer alternative design in a strict liability design defect case. In Allen, this Court examined the then-current state of Utah products liability tort law, and concluded the plaintiff, in a design defect case, “bear[s] the burden of showing that an alternative, safer design, practicable under the circumstances, was available at the time the [products] were sold.” 8 F.3d at 1479; see also Brown v. Sears, Roebuck & Co., 328 F.3d 1274, 1279 (10th Cir.2003) (noting holding of Allen regarding standards for strict liability design defect claims under Utah law). Ms. Wankier argues that the Utah cases subsequent to Allen demonstrate that a Utah court would not require plaintiffs to prove an element of a safer, feasible alternative design as an element of a strict liability design defect claim. These cases stand for the following proposition: To plead a case of strict products liability against a manufacturer, a plaintiff must allege (1) that the product was unreasonably dangerous due to a defect or defective condition, (2) that the defect existed at the time the product was sold, and (3) that the defective condition was a cause of the plaintiffs injuries. Lamb v. B & B Amusements Corp., 869 P.2d 926, 929 (Utah 1993); see also House v. Armour of Am., Inc., 929 P.2d 340, 343, 344" }, { "docid": "17288008", "title": "", "text": "that a particular product was defectively manufactured.” Id. “When a warning defect claim is made, a plaintiff alleges that he was not adequately warned of dangers inherent to a product.” Id. Finally, “[w]hen a design defect claim is made, a plaintiff alleges that the product at issue was defectively designed, thus causing an entire line of products to be unreasonably dangerous.” Id. In addition to their warning defect claim, the plaintiffs assert claims based on design and manufacturing defects. 1. Design Defect Claim The South Carolina Supreme Court has adopted the risk-utility test for a design defect claim under which a plaintiff must prove an alternative feasible design. Watson, 699 S.E.2d at 178 n. 4; see also Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5, 16 (2010) (“In sum, in a product liability design defect action, the plaintiff must present evidence of -a reasonable alternative design.”). The plain tiffs have offered no evidence of a feasible alternative design for metoclopramide. Instead, they argue they should not have to offer a feasible alternative design for metoclopramide but rather should only be required to offer an alternative design for PLIVA’s label and that the FDA has already implemented one in the form of the 2009 Black Box Warning. The plaintiffs provide no authority in support of this argument. The law in South Carolina is that a plaintiff must demonstrate an alternative feasible design in a product liability action based on a design defect. The plaintiffs have not met their burden of producing such proof. Therefore, PLI-VA’s motion for summary judgment is GRANTED as to the plaintiffs’ design defect claim. See also Gerber v. Hoffmann-La Roche, Inc., 392 F.Supp.2d 907, 922 (S.D.Tex.2005) (granting summary judgment to manufacturer on plaintiffs design defect claim in products liability action involving prescription drug Accutane where plaintiff provided no evidence of a safer alternative design). 2. Manufacturing Defect Claim A manufacturing defect claim is an allegation “that a particular product was defectively manufactured.” Watson, 699 S.E.2d at 174. There is not an abundance of case law in South Carolina about how a manufacturing defect differs" }, { "docid": "12810465", "title": "", "text": "years is only a fraction of plaintiffs smoking years, plaintiff has similarly not sufficiently pled the second level of causation. In addition, plaintiff has not specifically alleged the first level of causation beyond his general causation allegation quoted above. Consequently, this Court concludes that this is an alternate ground for granting the motion to dismiss the failure to warn claims. Safer Feasible Alternative Design Defendant argues that plaintiffs Complaint fails to state a claim of design defect, either in strict liability or negligence, because plaintiff has not alleged that a safer feasible alternative design exists for defendant’s cigarettes. To succeed on this theory, defendant must establish 1) that Rhode Island law requires a plaintiff to prove a safer feasible alternative design in order to prevail on a design defect claim and 2) that therefore, plaintiff must allege the existence of a specific safer feasible alternative design at the pleading stage to withstand a 12(b)(6) motion. Because there is no compelling support for either of these propositions, this Court rejects this contention. As noted above, a plaintiff in Rhode Island making a design defect claim must establish, in relevant part, that a defect in the product rendered the product unreasonably dangerous. See. Crawford, 14 F.Supp.2d at 211. Defendant argues that Rhode Island law requires proof of a safer alternative design before a factfinder can determine that a defect exists. Although practically, a plaintiff may well have to prove that a safer feasible alternative design exists to convince a factfinder that the product is “defective” in a way that would render it unreasonably dangerous, there is no indication that this type of proof is required as a matter of law in Rhode Island. The primary case that defendant relies upon for this proposition, Jackson, 538 A.2d at 669, simply does not establish this requirement. In that case, the plaintiff was injured when a pyramid of stacked bowls with glass lids manufactured by the defendant toppled over, causing the glass to break and a shard of glass to strike his eye. Id at 667. The Rhode Island Supreme Court, in reviewing the evidence" }, { "docid": "12810480", "title": "", "text": "something wrong with the product would state a design defect claim under the Third Restatement because a plaintiff could eventually prove that a safer feasible alternative design would fix the problem. This Court notes that its conclusions in this section to this point essentially adopt Magistrate Judge Lovegreen’s recommendation on the issue of a safer feasible alternative design requirement. Contrary to defendant’s assertions, this Court does not read Judge Lovegreen’s Report as endorsing “categorical liability.” However, this Court declines to adopt Judge Lovegreen’s recommendation that defendant be sanctioned for its arguments on this issue. Federal Rule of Civil Procedure 11 provides that “the claims, defenses, and other legal contentions” contained in a party’s pleadings must be “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law[.]” Fed.R.Civ.P. 11(b)(2). Judge Lovegreen based his recommendation specifically on defendant’s assertion that Jackson establishes that a plaintiff must plead and prove a safer feasible alternative design in order to prevail on a design defect claim in Rhode Island. Although this Court agrees that Jackson does not establish this proposition, it declines to sanction defendant for this “aggressive” use of precedent. See Protective Life Ins. Co. v. Dignity Viatical Settlement Partners, 171 F.3d 52, 57 (1st Cir.l999)(reversing imposition of Rule 11 sanctions as abuse of discretion where district court based sanctions on aggressive use of precedent, even where Court agreed that party had “attempted to squeeze too much from [the] cases”). Defendant did not rely solely on Jackson for its argument regarding the need to plead and prove a safer feasible alternative design and this Court concludes that, given the current controversy over the theory and the Rhode Island Supreme Court’s recent cursory treatment of Section 2(b) of the Restatement (Third) of Torts in Buonanno, the overall argument was not so frivolous as to warrant Rule 11 sanctions. See Clancy v. Mobil Oil Corp., 906 F.Supp. 42, 50 (D.Mass.1995)(refusing to impose Rule 11 sanctions where party’s argument was “not entirely unfounded”). Negligent Manufacturing Claim Defendant argues that plaintiffs negligent manufacturing claim" } ]

[ { "docid": "23519196", "title": "", "text": "MAHONEY, Circuit Judge: Plaintiff-appellant Vincent Moodie appeals from a judgment entered September 6, 1994 in the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, that dismissed Moodie’s amended complaint against defendant-appel-lee Federal Reserve Bank of New York (the “Reserve Bank”). Moodie alleged that he was discharged by the Reserve Bank in violation of applicable federal and state law prohibiting discrimination based on race and age. Moodie’s state law claims were dismissed on the basis that Moodie’s election to seek state administrative remedies prior to seeking redress in court deprived the district court of subject matter jurisdiction pursuant to New York Executive Law § 297(9). See Moodie v. Fed. Reserve Bank, 861 F.Supp. 10, 12-14 (S.D.N.Y.1994). The district court dismissed Moodie’s federal discrimination claims on the merits after a bench trial. See Moodie v. Fed. Reserve Bank, 862 F.Supp. 59 (S.D.N.Y.1994). We affirm. Background In October 1989, Moodie, a black, 57-year-old male, was fired from his job as a senior computer operator with the Reserve Bank after he was involved in an altercation with a white fellow employee. On January 31,1990, Moodie filed a complaint with the New York State Division of Human Rights (the “NYSDHR”) that alleged race and age discrimination “in violation of applicable state and federal law.” The NYSDHR made an investigative demand upon the Reserve Bank, and the Reserve Bank responded by requesting that the NYSDHR dismiss Mood-ie’s complaint on the basis that New York law does not apply to the Reserve Bank, and the NYSDHR therefore lacked jurisdiction over the Reserve Bank. The NYSDHR then issued a Determination and Order after Investigation that dismissed Moodie’s complaint because the Reserve Bank was “not subject to the jurisdiction of the New York State Human Rights Law.” The NYSDHR determination noted that Moodie could appeal therefrom to New York State Supreme Court, but cautioned that an adverse determination of such an appeal might deprive him of the right to pursue his Title VII claim in federal court, citing Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262" } ]

[ { "docid": "16896524", "title": "", "text": "otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C.A. § 2000e-2 (West 2002). . Until 1991, Title VII \"afforded only 'equitable' remedies ... [and t]he primary form of monetary relief available was backpay.” Landgraf v. USI Film Products, 511 U.S. 244, 252, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The Civil Rights Act of 1991, Pub.L. No. 102-166, § 102, 105 Stat. 1072 (1991) (the \"1991 Civil Rights Act”), amended Title VII to authorize additional recovery of compensatory and punitive damages in cases of \"intentional employment discrimination” pursuant to 42 U.S.C. § 1981a. Landgraf v. USI Film Products, supra at 253, 114 S.Ct. 1483. The 1991 Civil Rights Act applied to \"cases arising” after November 21, 1991. . That provision provides in pertinent part as follows: 1. It shall be an unlawful discriminatory practice:' (a) For an employer ... because of the age, race, creed, color, national origin, sex, disability, genetic predisposition or carrier status, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. N.Y. Exec. Law § 296(1)(a) (McKinney 2002). . \"An award of compensatory damages must be based on pecuniary loss and emotional injuries actually suffered as a result of discrimination, and care must be taken to assure that the award is not punitive.” New York State Department of Correctional Services v. State Division of Human Rights, 241 A.D.2d 811, 661 N.Y.S.2d 85, 86 (1997). Unlike Section 2000e-2 actions, punitive damages are not recoverable in actions instituted pursuant to Executive Law § 296. See Thoreson v. Penthouse Int’l Ltd., 80 N.Y.2d 490, 591 N.Y.S.2d 978, 606 N.E.2d 1369 (1992). The court does not deem any inability of Plaintiff Stokes to recover punitive damages under Executive Law § 296 to be a material difference from her rights under Section 2000e-2 for the purposes of this analysis. . It is unclear from the record whether Plaintiffs have asserted a" }, { "docid": "22859575", "title": "", "text": "Cir.1987). The court also found that there was sufficient evidence in the record to create a factual dispute as to whether the sham detail and the deprivation of duties were motivated by illegal discrimination on Williams’s part or by race-neutral (and therefore not violative of Title VII) personality conflict or cronyism. The court held that, although DeNovellis would have a triable issue as to liability for pre-Act discrimination, he had no right to a remedy under the law as it existed prior to the 1991 Act. Prior to enactment of the Civil Rights Act of 1991, plaintiffs in Title VII cases were limited to equitable remedies (including back pay, reinstatement, and injunctive relief). Landgraf v. USI Film Prods., 511 U.S. 244, 252, 114 S.Ct. 1483, 1490, 128 L.Ed.2d 229 (1994). The Act, which became effective on November 21, 1991, amended Title VII, and “effeetfed] a major expansion in the relief available to victims of employment discrimination.” Landgraf, 511 U.S. at 254-55, 114 S.Ct. at 1491. The 1991 Act created a right on the part of individuals alleging intentional unlawful discrimination to recover compensatory damages “for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses,” as well as punitive damages. 42 U.S.C. § 1981a(a)(1) & (b)(3) (1994); see Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 437 (1st Cir.1997). The Act also gave Title VII plaintiffs the right to a jury trial in cases where they seek compensatory or punitive damages. 42 U.S.C. § 1981a(e). These new provisions, however, do not apply to conduct that occurred before the effective date of the Act, November 21, 1991. Landgraf, 511 U.S. at 247, 286, 114 S.Ct. at 1487-88, 1508. Applying Landgraf to the instant case, the district court concluded that, even if DeNo-vellis were to establish after trial that his sham detail and employment “purgatory” violated his rights under Title VII, he would not be entitled to any remedy. This is because the sham detail ended in March 1991, prior to the effective date of the 1991 Act. Therefore, even if liability were" }, { "docid": "11494827", "title": "", "text": "action alleging he was not rehired on account of his race is hereby VACATED. The case is REMANDED to the district court for further proceedings consistent with this opinion. . The petition did not specify the provision or provisions of Title VII relied upon by Richardson. Section 2000e-2(a)(l) of the 1964 Act, however, clearly applies to the allegations. It states: It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.... Section 1981 bars racial discrimination in the making and enforcement of contracts. Richardson’s cause of action under § 1983, which prohibits the deprivation of federal rights, privileges or immunities under color of state law, was based upon charges that the defendants violated his equal protection rights protected by the United States Constitution. . The complaint also invoked the Civil Rights Act of 1991 (\"1991 Act\" or \"Act”), which expanded the scope of § 1981 and provided for the recovery of compensatoiy and punitive damages for certain violations of Title VII, as well as the right to a jury trial when such damages are sought. The 1991 Act did not apply to the defendants' conduct alleged here, however, because it occurred prior to the Act's November 21, 1991 effective date. Landgraf v. USI Film Prods., 511 U.S. -, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); Rivers v. Roadway Express, Inc., 511 U.S. ——, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994); Goldsmith v. City of Atmore, 996 F.2d 1155, 1159 (11th Cir.1993). Consequently, under this court's precedent, which construed Title VII claims as equitable in nature, Richardson was not entitled to a jury trial on his Title VII cause of action. Lincoln v. Board of Regents of the Univ. Sys. of Ga., 697 F.2d 928, 934 (11th Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983). Nor was he permitted to seek Title VII compensatoiy or punitive" }, { "docid": "23496168", "title": "", "text": "considering a motion to .dismiss, the court must accept as true the plaintiffs allegations contained in the complaint and view them in the light most favorable to her. Scheuer v. Rhodes, 416 U.S. 232, 235, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Yamaguehi alleged sex discrimination in her complaint. As in her EEOC charge, these allegations were separate and apart from her allegations of sexual harassment by Clark. Because Yamaguehi alleged sex discrimination in her EEOC charge and in her complaint, the district court erred when it dismissed this claim. We therefore reverse and remand to the district court for further proceedings. III. COMPENSATORY DAMAGES AND JURY TRIAL The district court granted the defendant’s motion to strike Yamaguchi’s prayer for compensatory damages and a jury trial for her claims of sex discrimination and sexual harassment. Prior to the Civil Rights Act of 1991(CRA) plaintiffs in Title VII cases were limited to equitable remedies. Landgraf v. USI Film Products, 511 U.S. 244, 252, 114 S.Ct. 1483, 1490, 128 L.Ed.2d 229 (1994). The CRA § 102 expanded the relief available in cases of intentional discrimination to include compensatory and punitive damages. 42 U.S.C. § 1981a(a)(l) & (b). The CRA also provided for the right to a jury trial in cases where the plaintiff seeks compensatory or punitive damages. 42 U.S.C. § 1981a(c). These new provisions, however, only apply to conduct which occurred after the effective date of the CRA, November 21,1991. Landgraf, 511 U.S. at 252, 114 S.Ct. at 1490. Yamaguehi sought compensatory damages for sexual harassment, sex discrimination, and disability discrimination which occurred after November 21, 1991. The district court dismissed Yamaguchi’s sex discrimination, see Section II infra, and disability claims. It then concluded that all of the sexual harassment occurred prior to the effective date of the CRA and therefore Yamaguehi is not entitled to compensatory damages or a jury on any of her claims. Although ordinarily a ruling on a motion to strike is reviewed for an abuse of discretion, Golden Gate Hotel Ass’n v. City and County of San Francisco, 18 F.3d 1482, 1485 (9th Cir.1994), because" }, { "docid": "7002325", "title": "", "text": "in enacting the Civil Rights Act of 1964.”) (footnote omitted). We therefore affirm the district court’s award of prejudgment interest on the Title VII back pay award. For the preceding reasons, we vacate the plaintiffs awards of compensatory and liquidated damages under the ADEA ánd affirm the relief awarded under Title VII — including reinstatement, promotion, back pay, prejudgment interest, injunctive relief and expenses and attorneys fees. Accordingly, we remand for further proceedings consistent with this decision. So ordered. . Also in 1987 Jones applied unsuccessfully for promotion to a TS-5 position as Quality Assurance Inspector. She claimed below that her rejection resulted from gender discrimination. This claim is not at issue on appeal. . The court decided the Title VII claims, based on evidence presented in a short bench trial as well as the evidence submitted both during and before the jury trial, because the acts giving rise to Jones's claims occurred before the effective date of the Civil Rights Act of 1991, 42 U.S.C. § 1981a(c), which first authorized jury trials for such claims. See Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). . After oral argument we ordered this appeal held in abeyance pending the Supreme Court’s decision in Kimel v. Florida Bd. of Regents, which issued on January 11, 2000 and which we discuss infra. . The WMATA Compact provides: The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agents committed in the conduct of any proprietary function, in accordance with the law of the applicable signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function. WMATA Compact, Pub.L. No. 89-774, § 80, 80 Stat. 1324, 1350 (1966). . Because we vacate the ADEA awards based on the jury's verdict, we need not address WMATA's objections to the admissibility of certain evidence (namely evidence of the entry of partial summary judgment, of the discrimination judgment against WMATA in Townsend v. WMATA, 746 F.Supp. 178 (D.D.C.1990)," }, { "docid": "1030607", "title": "", "text": "or without back pay — is itself equitable. See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 218 n. 4, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002). Consistent with this language, we have held that “the award of back pay is an integral part of the equitable remedy of reinstatement,” and must therefore be tried to the court. Slack v. Havens, 522 F.2d 1091, 1094 (9th Cir.1975); see also Johnson v. Ga. Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir.1969) (“The demand for back pay is not in the nature of a claim for damages, but rather is an integral part of the statutory equitable remedy, to be determined through the exercise of the court’s discretion, and not by a jury.”). Following Slack, we would hold that Lutz’s request for back pay, which she included along with her demand for reinstatement, sought an equitable remedy, but we must first decide whether Slack is still good law. When we decided Slack, “Title VII afforded only ‘equitable’ remedies.” Landgraf v. USI Film Prods., 511 U.S. 244, 252, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Congress subsequently adopted the Civil Rights Act of 1991, which expanded the remedies available under Title VII. An employee may now recover “compensatory and punitive damages” for certain Title VII violations, 42 U.S.C. § 1981a(a)(2), and he is entitled to have a jury determine the amount of such awards, id. § 1981a(c)(l). However, Congress provided that the compensatory and punitive damages remedies it created were “in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964,” as amended, 42 U.S.C. § 2000e-5(g). Id. § 1981a(a)(2); see also Landgraf 511 U.S. at 253, 114 S.Ct. 1483 (“[T]he new compensatory damages provision of the 1991 Act is ‘in addition to,’ and does not replace or duplicate, the backpay remedy allowed under prior law.”). Thus, Congress did not alter the remedial scheme it had established for back pay. See 42 U.S.C. § 2000e-5(g). In fact, Congress excluded back pay from the types of damages for which it authorized a jury trial. See" }, { "docid": "5631634", "title": "", "text": "protections; and (3) legislation is necessary to provide additional protections against unlawful discrimination in employment.” Pub.L. 102-166, § 2(2) and (3) (1991). The Act further provides that it was passed \"to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination.” Pub.L. 102-166, § 3(4) (1991). . If there was any remaining question as to the extent of the parties’ respective burdens, 42 U.S.C. § 2000e(m) establishes that the term \"demonstrates” is defined to mean \"meets the burdens of production and persuasion.” . See Govan, supra n. 3, 46 Rutgers L.Rev. at 236-239. . See Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (rejecting retroactive application of Civil Rights Act provision); Rivers v. Roadway Express, Inc., 511 U.S. 298, 301-05, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) (same). . See Huntington, 844 F.2d at 934, 936. . There is no statutory provision which requires that we update FHA housing discrimination standards every time Title VII undergoes revision. There are several reasons, however, which make it advisable to keep the two regimes in step: (1) identical statutory foundations and recent legislative history indicate a congressional intention to maintain parallel frameworks; (2) both statutes share the same broad remedial and preventive goals; (3) it is more efficient to adapt Title VII standards than to begin from scratch; and (4) rule of law values are well served by making the link explicit and clearly specifying relevant exceptions. See Vartanian, supra n. I, at 80 (outlining arguments for and against the applicability of new Title VII law to housing discrimination); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 147 (3rd Cir.1977) (noting identical \"because of race” provisions and Supreme Court’s instruction to \"construe both Title VII and Tille VIII broadly so as to end discrimination”); Elliot M. Mincberg, Note, Applying the Title VII Prima Facie Case to Title VIII Litigation, 11 Harv. C.R. — C.L. L.Rev. 128, n. 103 (1976) (discussing statutory parallels); Mahoney, supra n. 1, at 448 (noting" }, { "docid": "1854255", "title": "", "text": "of either $50,000 or $300,000, (3) to dismiss the New York Human Rights Law claims and (4) to dismiss the federal claims against defendants Walker and Kucik in their individual capacities, and the claim against Walker under New York law. I. The Civil Rights Act of 1991 (“the Act”) was signed into law on November 21, 1991. Among other things, the Act allowed jury trials to be conducted and compensatory and punitive damages to be awarded in intentional discrimination cases brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). See Pub.L. No. 102-166, § 102, 105 Stat. 1071 (1991). Previously, jury trials and compensatory and punitive damages had been held to be unavailable in cases brought under Title VII. See, e.g., Wade v. Orange County Sheriffs Office, 844 F.2d 951, 953 (2d Cir.1988). The present case was filed after the date the Act was signed, but concerns conduct allegedly occurring before this date. Plaintiffs have demanded a jury trial and seek compensatory and punitive damages. Defendants seek to strike these portions of the complaint, contending that the Act may not be retroactively applied to conduct occurring before it was signed. There is a split in authority in this district regarding the retroactivity of the Civil Rights Act of 1991. Compare Wisdom v. Intrepid Sea-Air Museum, No. 91 Civ. 4439(RPP), 1992 WL 168224, 1992 U.S.Dist. LEXIS 9424 (S.D.N.Y. June 26, 1992) (Patterson, J.) (holding the Act retroactive); and Jackson v. Bankers Trust Co., No. 88 Civ. 4786(JSM), 1992 WL 111105 (S.D.N.Y. May 4,1992) (Martin, J.) (same); and Youssef v. M. Rosenblatt & Son, Inc., No. 91 Civ. 5063(LBS), 1992 WL 116633 (May 18, 1992) (Sand, J.) (tentatively applying the Act retroactively until further appellate guidance is forthcoming); with Stout v. International Business Mach. Corp., 798 F.Supp. 998 (S.D.N.Y.1992) (Goettel, J.) (holding the Act prospective only); and Kelber v. Forest Elec. Corp., 799 F.Supp. 326 (S.D.N.Y.1992) (Freeh, J.) (same); and Sorlucco v. New York City Police Dep’t, 780 F.Supp. 202 (S.D.N.Y.) (Mukasey, J.) (denying post-jury verdict motion to retroactively apply the Act), rev’d on other grounds, 971 F.2d." }, { "docid": "22033318", "title": "", "text": "of law on the plaintiffs retaliation claim. (2) The order granting seven weeks of front pay to the plaintiff is affirmed. (3) The district court is directed on remand to calculate and award pre-judgment interest. (4) The order awarding attorneys’ fees is affirmed, except as noted in “5” below. (5) The order reducing the award of attorneys’ fees incurred in litigating the fee application is reversed. (6) The cause is remanded for the sole purpose of re-computation of the attorneys’ fees and the award of pre-judgment interest, both in a manner consistent with this opinion. . Fed.R.Civ.P. 50 (as amended in 1993), provides for judgment as a matter of law. Rule 50(a) provides that once a party has been fully heard on an issue the opposing party may move the court to find against the non-moving party where “there is no legally sufficient evidentiaiy basis for a reasonable jury to find for [the non-moving party] ... and may grant a motion for judgment as a matter of law against that party.” Rule 50(b) provides for the renewal of the motion for judgment as a matter of law after the jury has returned a verdict and the \"court may, in disposing of the renewed motion, allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as a matter of law.” . Because this action concerns conduct occurring before the enactment of the 1991 amendments to the Civil Rights Act, Reed was not entitled to a jury verdict on her Title VII claims. Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The district court resolved the Title VII claims in accordance with the jury's determinations on the state law claims. Cf. Song v. Ives Labs., Inc., 957 F.2d 1041, 1048 (2d Cir.1992) (requiring a district court to \"resolve the Title VII claims in accordance with the jury’s determination on the [New York state] claim”). The parties agree that the jury verdict is the proper \"locus of error” for both Reed’s Title VII and" }, { "docid": "9986185", "title": "", "text": "Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976). See, e.g., Ligón, 925 F.Supp.2d at 532-40. I note that the NYPD’s policies and training materials also draw from New York’s stop and frisk statute. Compare, e.g., Patrol Guide 212-11: Stop and Frisk, PX 98, at 1, with CPL § 140.50. As noted earlier, the New York statutory standard for a frisk is not the Fourth Amendment standard as defined by the Supreme Court. . See Davis v. City of New York, No. 10 Civ. 0699, 959 F.Supp.2d 324, 342 n. 75, 2013 WL 1288176, at *7 n. 75 (S.D.N.Y. Mar. 28, 2013). . Sibron, 392 U.S. at 61, 88 S.Ct. 1889 (reversing conviction for failure to suppress evidence seized in an unlawful stop). . U.S. Const. amend. XIV § 1. . City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). . See Washington v. Davis, 426 U.S. 229, 239-40, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). I note that the parties sometimes use the phrase \"pattern and practice” in referring to plaintiffs' constitutional claims. See, e.g., 6/12/13 Post-Trial Memorandum of Law in Support of Plaintiffs’ Claims (\"PL Mem.”) at i-ii; 6/12/13 Defendant's Post-Trial Memorandum of Law (\"Def. Mem.”) at 6 n. 11. However, pattern or practice analysis does not govern equal protection claims. See Chavez v. Illinois State Police, 251 F.3d 612, 638 n. 8 (7th Cir.2001). Rather, the term \"pattern or practice” appears in civil rights statutes such as Title VII of the Civil Rights Act of 1964, as well as several \"statutes authorizing the Attorney General to bring suits to remedy discrimination.” Marshall Miller, Police Brutality, 17 Yale L. & Pol'y Rev. 149-151, 169 & n. 124 (1998) (discussing Title XXI of the Violent Crime Control and Law Enforcement Act of 1994, codified at 42 U.S.C. § 14141, which allows the Attorney General to sue law enforcement agencies that \"engage in a pattern or practice” of unconstitutional conduct). I also note that despite the occasional use of the terms \"disparate treatment” and \"disparate impact” by the" }, { "docid": "5845983", "title": "", "text": "barred because Title VII is the exclusive judicial remedy for federal employment discrimination. See supra at pp. 7-8; see also American Postal Workers Union, AFL-CIO v. United States Postal Service, 940 F.2d 704, 708-09 (D.C.Cir.1991) (A comprehensive remedial scheme as is available to probationary postal employees precludes the review of federal employment termination decisions in a FTCA action.); accord, Premachandra v. United States, 739 F.2d 392, 394 (8th Cir.1984). For the foregoing reasons, the court concludes that the claims which Ms. Mays seeks to maintain under 42 U.S.C. §§ 1983 and 1985 and under the United States and Alabama constitutions must be dismissed. In other words, Ms. Mays’ Title VII claim is the only one upon which relief can be granted. The court will now address the defendants’ motion to strike Ms. Mays’ jury demand. II. MOTION TO STRIKE JURY DEMAND It is well established that prior to the 1991 Amendments to Title VII, “there [was] no right to trial by jury in eases arising under Title VII.” Lehman v. Nakshian, 453 U.S. 156, 164, 101 S.Ct. 2698, 2703, 69 L.Ed.2d 548 (1981) (citing Lorillard v. Pons, 434 U.S. 575, 583-84, 98 S.Ct. 866, 871-72, 55 L.Ed.2d 40 (1978)); Great American Federal Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 375 n. 19, 99 S.Ct. 2345, 2350 n. 19, 60 L.Ed.2d 957 (1979). In 1991, Title VII was amended to provide in part for the right to trial by jury. See 42 U.S.C. § 1981a(c). However, the 1991 Amendments did not become effective until November 21, 1991, and the Supreme Court of the United States has held that the Amendments do not apply retroactively. See Landgraf v. USI Film Products, 511 U.S. 244, -, 114 S.Ct. 1483, 1508, 128 L.Ed.2d 229 (1994). Here, Ms. Mays’ termination occurred on December 11, 1990, well before November 21,1991. McLaughlin Aff. at 3; Exs. A & G. Accordingly, pursuant to the foregoing authority, the court finds that Ms. Mays is not entitled to a jury trial with regard to her remaining Title VII claim. The court will now turn to the merits of" }, { "docid": "23127417", "title": "", "text": "for (a) race or gender-motivated failure to promote, (b) race or gender-motivated discharge, and (c) retaliatory discharge, and her claims against both LSC and Hamilton for retaliatory discharge in violation of § 1981. The trial of Hawkins’s remaining claims was held before Judge Wolle in June 1996. The Title VII claim against LSC for failure to promote was tried to the court because it was based on the events of May and August 1991; the 1991 Act’s amendment to Title VII, granting certain plaintiffs a right to trial by jury, see Pub.L. No. 102-166, § 102, 105 Stat. 1071, 1073, did not become effective until November 21, 1991, and did not apply to claims that arose before its effective date, see Landgraf v. USI Film Products, 511 U.S. 244, 286, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). All of Hawkins’s claims against LSC and Hamilton with respect to her 1992 discharge were tried to a jury. The jury, instructed generally on the law under Title VII and § 1981, was given a special verdict form containing four questions as to liability and three as to damages. Responding to those questions, the jury found that Hawkins had not “proved, by a preponderance of the evidence, that her” race or gender “was a motivating factor in the defendants’ decision to terminate her employment.” Special Verdict Form[ ] Questions 1, 2. However, the jury found that Hawkins had proven by a preponderance of the evidence “that her having filed against defendant a charge of discrimination, filed with the United States Equal Employment Opportunity Commission, was a motivating factor in defendants’ decision to discharge her from her employment at 1115 Legal Service Care,” and that “defendants acted with malice or reckless indifference to her rights in discharging her” from that employment. Id. Questions 3, 4. As to relief, the jury found that Hawkins was entitled to backpay in the amount of $125,000. In addition, the jury found that she was entitled to “damages for economic, emotional and psychological harm, humiliation and embarrassment resulting from the termination of her employment on April 16, 1992, in" }, { "docid": "22033319", "title": "", "text": "the renewal of the motion for judgment as a matter of law after the jury has returned a verdict and the \"court may, in disposing of the renewed motion, allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as a matter of law.” . Because this action concerns conduct occurring before the enactment of the 1991 amendments to the Civil Rights Act, Reed was not entitled to a jury verdict on her Title VII claims. Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The district court resolved the Title VII claims in accordance with the jury's determinations on the state law claims. Cf. Song v. Ives Labs., Inc., 957 F.2d 1041, 1048 (2d Cir.1992) (requiring a district court to \"resolve the Title VII claims in accordance with the jury’s determination on the [New York state] claim”). The parties agree that the jury verdict is the proper \"locus of error” for both Reed’s Title VII and state law claims. . While the dissent may speculate as to how Infantino intended to complete the offensive sentence, the fact remains that the defendant never presented any evidence to suggest that Infanti-no's remark was benign. . The plaintiff testified that she told Keehfus that the Lake Placid office was financially strong, but appeared to be losing money only because profits that should have been attributed to the Lake Placid office were attributed to other parts of the company, and because expenses related to projects of other Lawrence offices were attributed to the Lake Placid office. The plaintiff also claimed that the phone calls referred to by Keehfus were mostly related to business trips she had made for Lawrence. . According to Reed's testimony, this comment came out of the blue, as just a few weeks prior to being fired, she had spoken with Mather, who told her \"what a great job [she] was doing on the World University Games.” .Insofar as Reed did not allege that she was denied an economic benefit on account" }, { "docid": "23127416", "title": "", "text": "and defamation. Many of these claims were dismissed prior to trial. Hawkins voluntarily dismissed the retaliation claims against Lipofsky, certain state law claims against all three defendants, and the Title VII claims against Hamilton, see Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir.1995) (“individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII”). In addition, partial summary judgment was ordered, David G. Trager, Judge, dismissing all other claims against Lipofsky, the failure-to-promote claims against Hamilton, and all other state-law claims against Hamilton and LSC. Finally, the parties agreed that Hawkins had no cognizable claim under § 1981 for failure to promote or for any other events that occurred prior to the November 21,1991 effective date of the Civil Rights Act of 1991 (“1991 Act”), see Pub.L. No. 102-166, § 402(a), 105 Stat. 1071, 1099, which, inter alia, expanded the reach of § 1981, see Pub.L. No. 102-166, § 10.1, 105 Stat. 1071, 1071-72. Thus, the claims remaining for trial were Hawkins’s Title VII claims against LSC for (a) race or gender-motivated failure to promote, (b) race or gender-motivated discharge, and (c) retaliatory discharge, and her claims against both LSC and Hamilton for retaliatory discharge in violation of § 1981. The trial of Hawkins’s remaining claims was held before Judge Wolle in June 1996. The Title VII claim against LSC for failure to promote was tried to the court because it was based on the events of May and August 1991; the 1991 Act’s amendment to Title VII, granting certain plaintiffs a right to trial by jury, see Pub.L. No. 102-166, § 102, 105 Stat. 1071, 1073, did not become effective until November 21, 1991, and did not apply to claims that arose before its effective date, see Landgraf v. USI Film Products, 511 U.S. 244, 286, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). All of Hawkins’s claims against LSC and Hamilton with respect to her 1992 discharge were tried to a jury. The jury, instructed generally on the law under Title VII and § 1981, was given a special verdict form" }, { "docid": "20359525", "title": "", "text": "by law, citing Sauers. The court went on to observe that it would have so held even absent the Tenth Circuit’s controlling precedent. The court stated that it agreed with the decisions of other jurisdictions holding that Congress’s intent in Title VII cases was not to impose individual liability on employees, citing Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587 (9th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994), and Smith v. Capitol City Club, 850 F.Supp. 976 (M.D.Ala.1994). Additionally, the court agreed with those decisions which held that the prospect of employer liability will effectively deter individual conduct, citing Johnson v. No. Ind. Pub. Serv. Co., 844 F.Supp. 466, 469 (N.D.Ind.1994). We also are in accord with the reasoning of those decisions. Thus, because a Title VII claim or a claim arising under the KAAD may not be brought against a supervisory employee in his individual capacity, plaintiffs claims against Gary McDaniel, John Rebant, Mike Bosworth and Todd Smith shall be dismissed. B. Motion to Strike Plaintiffs Demand for a Jury Trial, and to Dismiss Plaintiffs Claims for Punitive and Compensatory Damages for All Alleged Wrongful Acts Occurring On or Before November 21, 1991. Defendant MAC Equipment urges the court to strike plaintiffs demand for a jury trial, and to dismiss her claims for compensatory and punitive damages arising from any alleged wrongdoing by defendant occurring on or before November 21, 1991, the date of enactment of the Civil Rights Act of 1991 (“the Act”). Section 102 of the Act allows a plaintiff alleging intentional discrimination to recover compensatory and punitive damages in addition to the equitable relief authorized by the Civil Rights Act of 1964. Defendant relies upon Landgraf v. USI Film Products, - U.S. -, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), wherein the Supreme Court specifically declined to give retroactive application to section 102 of the Act. The court, noting that it was unable to find any evidence of clear congressional intent, concluded that “[t]he new damages remedy in § 102 ... is the kind of provision that does not" }, { "docid": "8395923", "title": "", "text": "that her claims arose after November 21, 1991, following the Chancellor’s February 1992 approval of Casey’s decision. She also contends, if she was not entitled to a jury trial, that the district court erred in ruling against her on the merits. We reject both contentions. A. Applicability of the 1991 Provision for Jury Trial Prior to the 1991 Amendments, a Title VII plaintiff had no right to seek relief in the form of money damages. See, e.g., Landgraf v. USI Film Products, 511 U.S. 244, 252, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); Albemarle Paper Co. v. Moody, 422 U.S. 405, 416-21, 95 S.Ct. 2862, 45 L.Ed.2d 280 (1975). Further, prior to those amendments, the Supreme Court had never recognized a Title VII plaintiffs right to a jury trial. See, e.g., Landgraf v. USI Film Products, 511 U.S. at 253-54 n. 4, 114 S.Ct. 1483; Lytle v. Household Manufacturing, Inc., 494 U.S. 545, 549 n. 1, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990) (assuming without deciding that there was no right to a jury trial). The 1991 Amendments grant a plaintiff the right to seek damages for intentionally discriminatory treatment in employment in violation • of Title VII, see, e.g., 42 U.S.C. § 1981a(a), and further provide that “[i]f a complaining party seeks ... damages under this section ... any party may demand a trial by jury,” id. § 1981a(c). The 1991 Amendments became effective on November 21, 1991, and the Supreme Court has ruled that the provisions of § 1981a allowing a plaintiff to recover money damages do not apply to cases arising before their enactment, see Landgraf v. USI Film Products, 511 U.S. at 282-86, 114 S.Ct. 1483, i.e., do not apply “to conduct occurring before November 21, 1991,” id. at 282, 114 S.Ct. 1483. Since the right to a jury trial is expressly linked to a request for damages allowable under § 1981a, the right to a jury trial also does not apply when the conduct complained of occurred prior to November 21, 1991. See Landgraf v. USI Film Products, 511 U.S. at 281, 114 S.Ct. 1483." }, { "docid": "22466575", "title": "", "text": "not limited to, pregnancy discrimination) but also creates a private right of action to remedy violations of that policy and limns a mature procedure for pursuing such an action. Under Wenners, the existence of such a remedy precludes the appellant, in the circumstances of this case, from asserting a common law claim for wrongful discharge. It follows that the district court acted impeccably in granting summary judgment on this claim. V. CONCLUSION We need go no further. On the faetbound Title VII claim, this ease presents a close question. In the end, however, we must uphold the district court’s judgment because the standard of review is generous and there is enough evidence in the record to support the trier’s findings. On the two common law claims, our task is appreciably easier; both claims raise questions of law, not of fact, and the district court — albeit in the person of two different district judges — correctly resolved them. Affirmed. . During this same time frame, the company eliminated the engineering manager’s position. However, Bickford remained with Morse in a lesser capacity. . The company reprimanded the employee and trial testimony tended to establish that Morse had not authorized the comments. . The Civil Rights Act of 1991, Pub.L. 102-166, § 102, 105 Stat. 1071, 1073 (1991) (codified at 42 U.S.C. § 1981a(c)(l)), authorizes trial by jury in Title VII cases. Since the events that form the basis of the appellant's claim occurred prior to the effective date of the 1991 Act, she had no right to a jury trial on her Title VII claim. See Landgraf v. USI Film Prods., Inc.,-U.S.-, -, 114 S.Ct. 1483, 1487, 128 L.Ed.2d 229 (1994) (holding that the 1991 Act is not retroactive). By like token, the Price Waterhouse framework for proof of \"mixed-motive” discrimination that we describe in Part 11(B), infra, is somewhat changed under the 1991 Act. See Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir.1995). . Mesrdck is a case brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §~ 621-634, rather than under Title VII. The same burden-shifting" }, { "docid": "12682706", "title": "", "text": "created a right to recover compensatory and punitive damages for certain violations of Title VII of the Civil Rights Act of 1964. Rev. Stat. § 1977A(a), 42 U.S.C. § 1981a(a), as added by § 102 of the 1991 Act, Pub.L. 102-166, 105 Stat. 1071. Unlike the 1964 Civil Rights Act, which gave no right to a jury trial, see Lehman v. Nakshian, 453 U.S. 156, 164, 101 S.Ct. 2698, 2703-04, 69 L.Ed.2d 548 (1981) (“there is no right to trial by jury in cases arising under Title VII”); Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 375, 99 S.Ct. 2345, 2350, 60 L.Ed.2d 957 (1979), the 1991 Act also allows any party to demand a trial by jury if compensatory and punitive damages are sought. Rev.Stat. § 1977A(e), 42 U.S.C. § 1981a(c), as added by § 102 of the 1991 Act. However, the 1991 Act, including its provision allowing trial by jury of Title VII claims, 42 U.S.C. § 1981a(c), does not apply to conduct that occurred before its enactment. Landgraf v. USI Film Products, — U.S. -, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); Mojica v. Gannett Co., 7 F.3d 552 (7th Cir.1993) (en banc), cert. denied, — U.S. -, 114 S.Ct. 1643, 128 L.Ed.2d 363 (1994); see also Saxton v. American Tel. & Tel. Co., Inc., 10 F.3d 526, 536 n. 22 (7th Cir.1993). In this case, the alleged discriminatory conduct all occurred in 1989, well before the enactment of the 1991 Act. Thus, Alexander had no right to a jury trial. We commend the late Magistrate Judge Weisberg’s efforts to deal with the jury trial issue in the face of the legal uncertainty of the retroactivity of the 1991 Act. Alexander’s trial took place on September 15 and 16, 1992. On September 17, 1992, after the jury verdict, the district court dismissed the jury and set forth its own independent findings of fact and conclusions of law. The district court recognized the undecided retro-activity issue and the procedural problems it posed. Specifically, the district court wanted to avoid a retrial if in fact" }, { "docid": "1030608", "title": "", "text": "511 U.S. 244, 252, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Congress subsequently adopted the Civil Rights Act of 1991, which expanded the remedies available under Title VII. An employee may now recover “compensatory and punitive damages” for certain Title VII violations, 42 U.S.C. § 1981a(a)(2), and he is entitled to have a jury determine the amount of such awards, id. § 1981a(c)(l). However, Congress provided that the compensatory and punitive damages remedies it created were “in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964,” as amended, 42 U.S.C. § 2000e-5(g). Id. § 1981a(a)(2); see also Landgraf 511 U.S. at 253, 114 S.Ct. 1483 (“[T]he new compensatory damages provision of the 1991 Act is ‘in addition to,’ and does not replace or duplicate, the backpay remedy allowed under prior law.”). Thus, Congress did not alter the remedial scheme it had established for back pay. See 42 U.S.C. § 2000e-5(g). In fact, Congress excluded back pay from the types of damages for which it authorized a jury trial. See id. § 1981a(b)(2) (“Compensatory damages awarded under this section shall not include backpay .... ”); id. § 1981a(c)(l) (granting a jury trial right where “a complaining party seeks compensatory or punitive damages under this section”). In light of the nearly uniform view of the courts of appeals that back pay under Title VII must be tried to the court, it is particularly telling that Congress provided a jury trial right for some Title VII claims while expressly declining to do so for back pay. Cf. Faragher v. City of Boca Raton, 524 U.S. 775, 792, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (“[T]he force of precedent ... is enhanced by Congress’s amendment to the liability provisions of Title VII [after the Supreme Court interpreted those provisions], without providing any modification of our holding.”); Cannon v. Univ. of Chi., 441 U.S. 677, 696-98 & n. 21, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (presuming that Congress was aware of the prior interpretation given to a statutory provision by four courts of appeals and a handful of" }, { "docid": "18617053", "title": "", "text": "question has no bearing on the proper interpretation of § 1981. b. 42 U.S.C. § 2000e-2(b) The tester plaintiffs also sought damages under Title VII of the Civil Rights Act of 1964. Title VII declares that “[i]t shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race”. 42 U.S.C. § 2000e-2(b). After exhausting certain administrative remedies (as the plaintiffs have done), “a person claiming to be aggrieved” by any such practice may sue the offending employment agency in court. Id. § 2000e-5(b), (c), (f)(1). This statutory scheme is much more analogous than § 1981 to the provisions of the Fair Housing Act that were at issue in Havens. For our purposes, however, the available remedies are critically different. Had the tester plaintiff in Havens proved her claims, the district court could have awarded her damages. See 42 U.S.C. § 3612(b); cf. United States v. Balistrieri, 981 F.2d 916, 932-33 (7th Cir.1992). At the time of the alleged discrimination against the testers here, however, only equitable remedies were available under Title VII. 42 U.S.C. § 2000e-5(g); see also United States v. Burke, — U.S. -, -, 112 S.Ct. 1867, 1873-74, 119 L.Ed.2d 34 (1992) (contrasting “the circumscribed remedies available under Title VQ” with the remedies available under the Fair Housing Act). The Civil Rights Act of 1991 expanded the remedies available under Title VII, see 42 U.S.C. § 1981a, but the new remedial provisions cannot be applied to conduct occurring before the enactment of the 1991 statute. Landgraf v. USI Film Products, — U.S. -, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). 2, Claims for Prospective Relief Since the tester plaintiffs have no cause of action for damages under either § 1981 or Title VII, their federal claims reduce to their request for injunctive or declaratory relief. Yet under City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), they lack standing to seek such prospective relief, for they have not made sufficient allegations that they" } ]

[ { "docid": "7035560", "title": "", "text": "action immunity doctrine of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), controlled, rendering defendants immune from the antitrust claims because of the State policy to provide monopoly public water service under Va. Code § 15.1-1261. Shrader v. Horton, 471 F.Supp. 1236 (W.D.Va.1979). The antitrust question has not been raised on appeal. . The Johnson Act, 28 U.S.C. § 1342 (1948), provides: The district courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where: (1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and, (2) The order does not interfere with interstate commerce; and, (3) The order has been made after reasonable notice and hearing; and, (4) A plain, speedy and efficient remedy may be had in the courts of such State. . Since the District Court decision was rendered, the Virginia statute, § 15.1-1261, supra, was amended April 3, 1980 to read as follows: Water and sewer connections. — Upon the acquisition or construction of any water system or sewer system under the provisions of this chapter, the owner, tenant, or occupant of each lot or parcel of land which abuts upon a street or other public way containing a water main or a water system, a sanitary sewer which is a part of or which is served or may be served by such sewer system and upon which lot or parcel a building shall have been constructed for residential, commercial or industrial use, shall, if so required by the rules and regulations or a resolution of the authority, with concurrence of such local government, municipality, or county that may be involved, connect such building with such water main or sanitary sewer, and shall cease to use any other source of water supply for domestic use or any other method for the disposal of sewage, sewage waste or other polluting matter. All such connections shall be" } ]

[ { "docid": "7391352", "title": "", "text": "from the operation of the antitrust laws. This conclusion leads me to dismiss plaintiffs' Clayton Act claim against not only the UDC and the City, but the other defendants as well. It would be anomalous indeed to hold that the UDC and the City are exempt from antitrust scrutiny because they made their conditional designations pursuant to state authorization, and to hold at the same time that the developers who merely applied for and received, those designations are not. See Caribe Trailer Systems, Inc. v. Puerto Rico Maritime Shipping Authority, 475 F.Supp. 711, 724 (D.D.C.1979), affd per curiam, No. 79-1658 (D.C.Cir.1980), cert, denied, 450 U.S. 914, 101 S.Ct. 1355, 67 L.Ed.2d 339 (1981). Therefore, defendants’ motion to dismiss the Clayton Act claim is granted. That leaves only plaintiffs’ pendent Donnelly Act claim. When a case presents both federal and pendent state claims, and the federal claims are dismissed, the pendent state claims must be dismissed as well. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Simply put, once the federal claims are dismissed, the federal court has no subject matter jurisdiction over the pendent claims. Accordingly, I grant defendants’ motion to dismiss plaintiffs’ Donnelly Act claim. For the reasons stated above, plaintiffs’ complaint is hereby dismissed, and the Clerk of the Court is directed to enter judgment in favor of defendants. SO ORDERED. . In addition to the UDC, the City, Nederlander, Jujamcyn, Cambridge, and Park Tower, the complaint also names Harris Nederlander, Inc., New Amsterdam Nederlander, Inc., and the Times Square Redevelopment Corporation as defendants. Harris Nederlander, Inc. and New Amsterdam Nederlander, Inc. are both owned and controlled by the Nederlander Organization, Inc. Accordingly, I have referred to all three as “Nederlander.\" The Times Square Redevelopment Corporation is a subsidiary of the UDC created pursuant to § 6262 of the New York Unconsolidated Laws. . Defendant Park Tower has also moved for an award of attorney’s fees. Plaintiffs and Park Tower have agreed, however, that the Court should not address this issue until after the instant motion to dismiss is" }, { "docid": "6441737", "title": "", "text": "the case. In fact, in Noerr itself the railroads were alleged to have vigorously lobbied the legislature to adopt and maintain certain weight standards for over-the-road truckers. ' 365 U.S. at 130, 81 S.Ct. at 525. This lobbying was allegedly motivated by a purpose to keep truckers out of the market for transporting goods. Clearly, the railroads sought legislation “regarding the adoption of mere specifications.” See also Israel v. Baxter Laboratories, Inc., 466 F.2d 272 (D.C.Cir.1972) (Noerr-Pennington doctrine applies to proceedings before, the Food and Drug Administration relative to the approval of a particular drug). Third, Allied argues that anti-competitive actions taken pending the passage of legislation are not protected by Noerr-Pennington. See, e.g., Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 624 F.2d 476, 481-82 (4th Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981) (joint action to challenge state law requiring insurance companies to pay benefits for psychological care protected by Noerr-Pennington doctrine; however, joint action to deny such benefits pending the legislative challenge is not protected). However, WP took no action pending the approval of IMC by NFPA and UL other than planning strategy in their efforts to approach (or lobby) NFPA and UL. Thus the teaching of Virginia Academy is inapplicable. A number of eases hold that lobbying organizations much like NFPA and UL are protected by the Noerr-Pennington doctrine. The case which seems most directly on point is Rush-Hampton Industries v. Home Ventilating Inst., 419 F.Supp. 19 (M.D.Fla.1976). In Rush-Hampton, the plaintiff was engaged in the manufacture, distribution and sale of ductless bathroom fans. The defendant was a trade association composed of businesses manufacturing and/or selling ducted bathroom fans. The plaintiff sought the approval for its new product, ductless fans, from the three regional building code organizations whose primary functions were to promulgate model building codes and building standards for use by state and local entities. The defendant trade association was alleged to have organized and financed opposition to the plaintiffs new product by opposing the plaintiffs applications before the building code organizations, in violation of the antitrust laws." }, { "docid": "1847229", "title": "", "text": "Comm’n, 279 U.S. 125, 139, 49 S.Ct. 325, 328, 73 L.Ed. 637 (1929). We are therefore bound by the Pennsylvania Supreme Court’s holding that the Horse Racing Commission was authorized by the legislature to fix jockey fees. . The degree of articulation and expression by the legislature that is necessary was also stated in City of Lafayette v. Louisiana Power & Light Co., 532 F.2d 431, 434-35 (5th Cir. 1976), aff’d, 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978): [l]t is not necessary to point to an express statutory mandate for each act which is alleged to violate the antitrust laws. It will suffice if the challenged activity was clearly within the legislative intent. Thus, a trial judge may ascertain, from the authority given a governmental entity to act in a particular area, that the legislature contemplated the kind of action complained of. Cited in Community Communications Co., Inc. v. City of Boulder, - U.S. -, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982) (footnote omitted). In Lafayette, the Court considered an antitrust counterclaim against two Louisiana cities that allegedly pursued various anticompetitive activities in their operation of electric power companies. The Court agreed that Congress did not intend to exempt local governments per se from antitrust scrutiny. Justice Brennan noted that municipal decisions might express only “purely parochial interests” rather than state policy. 435 U.S. at 416, 98 S.Ct. 1138. That concern is not presented in the case of a state agency responsible for articulating statewide policy. See, e.g.. Metropolitan Edison Co. v. Public Service Comm’n, 127 Pa.Super.Ct. 11, 191 A. 678 (1937). For a general analysis of the Lafayette decision, see Areeda, “Antitrust Immunity For ‘State Action’ After Lafayette,\" 95 Harv.L.Rev. 435 (1981). . The recent Supreme Court decision in Boulder is not controlling here. In Boulder, the Court held that an ordinance of the City of Boulder, a “home rule” municipality with extensive powers of self-government in local and municipal matters, which restricted the expansion of a cable television business for three months, was not exempt from antitrust scrutiny under the state action exemption of Parker." }, { "docid": "15659652", "title": "", "text": "Motor Inns, Inc. v. Holiday Inns, Inc., 521 F.2d 1230, 1243 (3rd Cir. 1975). . Contrary to the suggestion by the district court, it was the Commission and not BSV which brought the action. The constitutionality of the statute was upheld by the Commission. Commonwealth of Virginia ex rel State Corporation Comm. v. Blue Cross of Virginia, Case No. 19829 (Feb. 14, 1979). . We do not hold that the defendant’s conduct was within the “sham” exception to the Noerr-Pennington doctrine. See Noerr, supra, 365 U.S. at 144, 81 S.Ct. at 533, California Motor Transport, supra. The “sham” exception applies when the right is actually exercised, but in a manner calculated to interfere directly with a competitor’s business. Repeated frivolous litigation calculated to delay a competitor’s licensing would be an illegal sham. But until the right to petition is exercised, the “sham” inquiry is not reached. . We are also unable to agree with the district court’s application of the State action exemption to the collaboration of the Richmond and Roanoke Plans in the administration of “national accounts,” the operation of which is fully described in the district court’s opinion. 469 F.Supp. at 557-58. Although Virginia may have created a need for cooperation by prohibiting the Plans from operating outside their assigned territories, the State certainly does not compel the defendants to exclude psychologists from direct coverage. The application of the State action exemption in this case is thus precluded by our decision in Ballard v. Blue Shield of Southern West Virginia, Inc., 543 F.2d 1075 (1976). [N]o action on the part of West Virginia compels the defendants to exclude chiropractors from their insurance plans. West Virginia law specifically authorizes the defendant companies to insure the costs of chiropractic treatment, but the defendants have not elected to provide this coverage. Therefore they can claim no immunity under Parker v. Brown. Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976); Goldfarb v. Virginia State Bar, 421 U.S. 773, 778-92, 95 S.Ct. 2004 [2008-15], 44 L.Ed.2d 572 (19.75). 543 F.2d at 1079. See also, California Retail" }, { "docid": "4982502", "title": "", "text": "for summary judgment on the ground that the conduct at issue in this lawsuit is immune from liability under the state action exemption to the antitrust laws. Because the immunity of private parties derives from a determination that the conduct of the state entities is so immunized, it is first necessary to consider the applicability of the state action exemption to Puerto Rico defendants. The principle that state action is beyond the scope of federal antitrust laws stems from the decision of the Supreme Court in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). In Parker the Court rejected a producer’s claim that a state agricultural marketing program established pursuant to statute violated the Sherman Act. Noting that the state had adopted the program to restrict competition and maintain prices, the Court held that Congress intended the Sherman Act to restrain private anticompetitive conduct and not actions taken by a state or its agencies in furtherance of a legislative mandate. There is no dispute that Puerto Rico is a state for purposes of applying the Parker doctrine. International Tel. & Tel. Corp. v. General Tel. & Elec. Corp., 351 F.Supp. 1153, 1229 (D.Hawaii 1972), mod. on other grounds, 518 F.2d 913 (9th Cir. 1975). Defendants argue that the actions of a state instrumentality mandated by clear legislative authority are immune from antitrust liability under Parker. They note that in this case the Puerto Rico legislature specifically mandated its instrumentality, PRMSA, to take over and operate the shipping trade between the East Coast and Gulf ports of the United States and Puerto Rico. PRMSA carried out the mandate by acquiring and operating ships in this trade, and defendants argue that as a result, the PRMSA acquisition and operation of the steamships are immune from antitrust liability. A. State Instrumentalities. After a long period of silence, the Supreme Court in recent years has given renewed attention to the scope of the Parker doctrine and its decisions have been the subject of extensive legal commentary. The most recent case involving the doctrine is City of Lafayette v. Louisiana" }, { "docid": "9665814", "title": "", "text": "in purely state governmental activity, or official activity directed by a state. See New Mexico v. American Petrofina, Inc., 501 F.2d 363 (9th Cir. 1974); Ladue Local Lines, Inc. v. Bi-State Development Agency, 433 F.2d 131 (8th Cir. 1970); E. W. Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52 (1st Cir.), cert. denied 385 U.S. 947, 87 S.Ct. 320, 17 L.Ed.2d 226 (1966); Murdock v. City of Jacksonville, 361 F.Supp. 1083 (M.D.Fla.1973). The Court in Lafayette, however, relying on Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), and Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), rejected the contention that a governmental entity’s status as such automatically affords it the “state action” exemption. 435 U.S. at 411, 98 S.Ct. 1123. Rather, the Court concluded that “the Parker doctrine exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or, by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service.” Id. at 413, 98 S.Ct. at 1137. More to the point for the present case is this comment on the status of municipalities: “[W]e agree with the Court of Appeals that an adequate state mandate for anti-competitive activities of cities and other subordinate governmental units exists when it is found ‘from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of.’ ” Id. at 415, 98 S.Ct. at 1131 (emphasis added). It is, of course, somewhat easier to discern the intent underlying federal legislation, due to the availability of the legislative history of a particular statute, than when a Court deals with state legislation. In North Carolina, as elsewhere, there is no such history. Perhaps foreseeing the problems associated with this lack of guidance, the Fifth Circuit declared that “Whether a governmental body’s actions are comprehended within the powers granted to it by the legislature is, of course, á determination which can be made only under the specific facts in" }, { "docid": "4982503", "title": "", "text": "for purposes of applying the Parker doctrine. International Tel. & Tel. Corp. v. General Tel. & Elec. Corp., 351 F.Supp. 1153, 1229 (D.Hawaii 1972), mod. on other grounds, 518 F.2d 913 (9th Cir. 1975). Defendants argue that the actions of a state instrumentality mandated by clear legislative authority are immune from antitrust liability under Parker. They note that in this case the Puerto Rico legislature specifically mandated its instrumentality, PRMSA, to take over and operate the shipping trade between the East Coast and Gulf ports of the United States and Puerto Rico. PRMSA carried out the mandate by acquiring and operating ships in this trade, and defendants argue that as a result, the PRMSA acquisition and operation of the steamships are immune from antitrust liability. A. State Instrumentalities. After a long period of silence, the Supreme Court in recent years has given renewed attention to the scope of the Parker doctrine and its decisions have been the subject of extensive legal commentary. The most recent case involving the doctrine is City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978), in which the Court held municipalities could not invoke the Parker doctrine in a suit for antitrust violations allegedly committed by them in connection with ownership of public utilities. In refusing to find antitrust immunity, a plurality of the Court held that municipalities, like other state instrumentalities, are not exempt from application of the antitrust laws simply by virtue of their status as governmental entities. Id. at 413, 98 S.Ct. 1123, 1137. The plurality stated; “We therefore conclude that the Parker doctrine exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or, by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service.” Id. City of Lafayette thus establishes a twofold inquiry that must guide the Court in applying the Parker doctrine. The first consideration is whether the state, acting as sovereign, has required its agency or instrumentality to engage in the particular form of anticompetitive conduct. This is" }, { "docid": "7391351", "title": "", "text": "to the Project’s success. Be that as it may, the Supreme Court made it clear in Town of Hallie v. City of Eau Claire, — U.S. —, 105 5. Ct. 1713, 85 L.Ed.2d 24 (1985), that a state agency or municipality need not show that it was compelled by the state to act in order to receive the immunity of the state action doctrine. The Court stated that “although compulsion affirmatively expressed may be the best evidence of state policy, it is by no means a prerequisite to a finding that a municipality acted pursuant to clearly articulated state policy.” Id. at —, 105 S.Ct. at 1719. Even though the state did not compel their actions here, I am fully satisfied, for the reasons stated above, that the UDC and the City acted pursuant to a clearly articulated state policy when they designated the defendant theater operators to develop the five Times Square theaters. Accordingly, I conclude that the conditional designations of the defendant theater operators to develop the five Times Square theaters are exempt from the operation of the antitrust laws. This conclusion leads me to dismiss plaintiffs' Clayton Act claim against not only the UDC and the City, but the other defendants as well. It would be anomalous indeed to hold that the UDC and the City are exempt from antitrust scrutiny because they made their conditional designations pursuant to state authorization, and to hold at the same time that the developers who merely applied for and received, those designations are not. See Caribe Trailer Systems, Inc. v. Puerto Rico Maritime Shipping Authority, 475 F.Supp. 711, 724 (D.D.C.1979), affd per curiam, No. 79-1658 (D.C.Cir.1980), cert, denied, 450 U.S. 914, 101 S.Ct. 1355, 67 L.Ed.2d 339 (1981). Therefore, defendants’ motion to dismiss the Clayton Act claim is granted. That leaves only plaintiffs’ pendent Donnelly Act claim. When a case presents both federal and pendent state claims, and the federal claims are dismissed, the pendent state claims must be dismissed as well. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Simply" }, { "docid": "4681738", "title": "", "text": "the legislature has delegated the “authority to take action that foreseeably will result in anticompetitive effects.” (p. 43, 105 S.Ct. p. 1718). One test of the state action is the forsee-ability that the state action will result in anticompetitive effects. In Hancock Industries v. Schaeffer, 811 F.2d 225 (3d Cir.1987) the question involved the actions of the Chester County Solid Waste Authority which was incorporated under the Pennsylvania Municipality Authorities Act, 53 Pa.Stat.Ann. § 301 et seq. and derived further powers under the Pennsylvania Solid Waste Management Act, 35 Pa.Stat.Ann. § 6018.101 et seq. The Authority regulated and restricted the wastes which it would accept at its landfills to exclude wastes of out-of-county origin. The Court of Appeals rejected the anti-trust attack on this action, finding that the Authority’s action was a foreseeable result of the broad power to regulate given by the legislative acts. Hancock also established that the availability of the state action exemptions does not depend on the subjective motivation of the defendants. “A contrary conclusion would compel the federal courts to intrude upon internal state affairs whenever a plaintiff could present colorable allegations of bad faith on the part of the defendants.” See also Hoover v. Ronwin, 466 U.S. 558, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984) and Euster v. Eagle Downs Racing Association, 677 F.2d 992 (3d Cir.1981). Similarly in this District an antitrust attack was rejected in Chambers Development, Inc. v. City of Monroeville, 617 F.Supp. 820 (W.D.Pa.1985). Plaintiff alleged that the municipal authority had used its powers in an anticompetitive way. The court dismissed the attack, holding that the foreseeability of the anticompetitive effect was the element supporting the state action exemption. The Plaintiff argues that the state action exemption does not apply here because the Port Authority’s action goes beyond the specific legislative authority. Plaintiff’s brief states that the exemption would only apply if defendants’ activities were in volved in the operation of a public port terminal, or even leasing the dock to a private person who was operating the dock for the use of the public, (p. 2 Pls.Supp. Memo of" }, { "docid": "12864903", "title": "", "text": "two of them actually found that private parties were immune without compulsion by the state. The first, Caribe Trailer Systems, Inc. v. Puerto Rico Maritime Shipping Authority, 475 F.Supp. 711 (D.D.C.1979), aff'd per curiam, No. 79-1658 (D.C.Cir.1980), cert. denied, 450 U.S. 914, 101 S.Ct. 1355, 67 L.Ed.2d 339 (1981), a district court opinion, is of only limited relevance because in that case the court reviewed a governmental restraint involving a private party (and a state defendant) rather than, as here, a private restraint approved by the government. In the second case, Turf Paradise, Inc. v. Arizona Downs, 670 F.2d 813 (9th Cir.1982), cert, denied, -U.S.-, 102 S.Ct. 2308, 73 L.Ed.2d 1308 (1982), in which the Ninth Circuit reviewed an antitrust challenge to a private agreement allocating horse racing dates between two race track operators, the state had by statute specifically reserved the right to perform the allocation in the event that the private parties could not agree. Id. at 816. Thus, although the state did not compel the private parties to enter into the racing date agreement, it had effectively ensured that the anticompetitive conduct would occur one way or another. . Appellants reason that the Court eliminated the compulsion requirement because the basis for state compulsion is the concern that the economic self interest of private parties might affect the rate setting process and, according to appellants, the second standard in Midcal — the requirement of state supervision — assuages that concern. They assert that a supervision requirement adequately ensures that the state has determined that the challenged activity is in furtherance of the state’s policy and that the state does not abdicate its responsibility to private parties. We disagree with this analysis. If the second Midcal standard accomplished as much as appellants claim, there would have been no need for the first standard. Further, if compulsion and supervision served the same purpose, the Supreme Court would have upheld, rather than denied, state action immunity in Midcal because compulsion was present in that case. See 445 U.S. at 99-100, 100 S.Ct. at 940-941. That the Court did not reach" }, { "docid": "18730746", "title": "", "text": "Association, 453 U.S. 1, 19 (1981). Appellant must look to the administrative agency responsible for the enforcement of these provisions. Caceres Agency Inc. v. Trans World Airways, 594 F.2d 932 (2 Cir.1979). We hold that the district court was correct in dismissing appellant’s claims under the Federal Aviation Act and § 1983. IV. To summarize: The district court correctly held that the Local Government Antitrust Act of 1984 bars appellant’s Clayton Act claims for damages. The broad delegation of authority which N.Y.Gen. Mun.Law §§ 350-357 confers on municipalities in the operation of local airports evidences an intent to displace competition with regulation. The state legislature must have contemplated the kind of anti-competitive conduct that would result. Under Hallie, this is sufficient to exempt the Town of East Hampton from both the Clayton Act and Sherman Act antitrust claims. Since Congress expressed no intent to create private rights of action under the Federal Aviation Act, the court properly dismissed the claims under the Federal Aviation Act and § 1983. The injunction pending appeal is dissolved and the judgment of the district court is affirmed substantially for the reasons set forth in Judge Bramwell’s opinions of May 28, 1985 and September 4, 1985. Affirmed. . Hereafter in this opinion, when we refer to “the Act\", we mean the Local Government Antitrust Act of 1984. When other statutes are referred to, such as the Clayton Act, the Sherman Act, or the Federal Aviation Act, we shall refer to them by name. . See N.Y.Gen.Mun.Law §§ 350-357 (McKinney 1974 & Supp.1984-85), referred to infra. . Appellant relies on Guthrie v. Genesee County Airport, 494 F.Supp. 950, 955-57 (W.D.N.Y. 1980), where the court held that N.Y.Gen. Mun.Law § 350-57 did not meet the City of Lafayette state action test. We are not persuaded that Guthrie would be decided the same way after Hallie. Guthrie relied in part on the active state supervision requirement which the Supreme Court abandoned in Hallie. 494 F.Supp. at 956. See Hallie, supra, 105 S.Ct. at 1721. Moreover, the Guthrie court applied the then-existing state action test in holding that §" }, { "docid": "8639053", "title": "", "text": "as the result of the legislative grant of authority to the University of Massachusetts trustees, the challenged actions of the medical center were foreseeable consequences, and the medical center is, in this action, protected by the state action doctrine. In this case, Lincoln Medical and Mental Health Center, Ohio State University Hospital, Oregon Health Sciences University Hospital, the University of California Medical Centers, Stony Brook University Hospital, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center all have demonstrated that a clearly articulated and affirmatively expressed state policy existed which made each respective hospital’s requirement of board certification for its medical staff members foreseeable. Therefore, the court finds that each of these hospital Defendants are exempt, in this action, from federal antitrust law by application of the state action doctrine. c. Local Government Antitrust Act Immunity The Local Government Antitrust Act of 1984 (“the LGAA”). 15 U.S.C. §§ 34-36, was enacted by Congress “in order to broaden the scope of antitrust immunity applicable to local governments.” Sandcrest Outpatient Services, P.A. v. Cumberland County Hospital System, Inc., 853 F.2d 1139, 1142 (4th Cir.1988) (citing H.R.Rep. No. 965, 98th Cong., 2d Sess. 2, reprinted in 1984 U.S.Code Cong. & Admin. News 4602, 4603); Capital Freight Services, Inc. v. Trailer Marine Transport Corporation, 704 F.Supp. 1190, 1197 (S.D.N.Y.1989). The LGAA provides immunity to any defined local government from monetary damages, costs, and attorney’s fees under Sections 15, 15a, and 15c in an antitrust case. 15 U.S.C. § 35(a). “Congress prohibited the recovery of antitrust damages against local governments based on the policy that ‘tax payers should not be forced to bear the treble damage remedies recoverable from local governments under extant law, and on the belief that local governments should not be forced to spend public funds in defending baseless antitrust suits.’ ” Zapata Gulf Marine Corporation v. Puerto Rico Maritime Shipping Authority, 682 F.Supp. 1345, 1350 (E.D.La.1988) (quot ing Palm Springs, supra, at 461-462). However, the LGAA does not extend its immunity to injunctive relief. 15 U.S.C. § 35; Cohn v. Bond, 953 F.2d" }, { "docid": "9665813", "title": "", "text": "Airport is the only one in Moore County that is federally funded and equipped to service passenger air service for the Southern Pines resort community. Plaintiff thus has alleged a geographic market. Plaintiff also has alleged that Resort enjoys the position as the sole PBO at the airport, which clearly implies the allegation that Resort is monopolizing the market for all products and services required and used by customers of the airport FBO. Plaintiff thus has described an adequate product market over which Resort allegedly enjoys a monopoly. Based on these allegations, the Court concludes that sufficient markets have been alleged by the plaintiff to support its § 2 claim. (4) Governmental Exemption As with numerous other lawsuits, this case took on a completely new complexion after the Supreme Court rendered its decision in the Lafayette case. Prior to that decision it was widely assumed that Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), granted a blanket immunity from the federal antitrust laws to states and their subdivisions when engaging in purely state governmental activity, or official activity directed by a state. See New Mexico v. American Petrofina, Inc., 501 F.2d 363 (9th Cir. 1974); Ladue Local Lines, Inc. v. Bi-State Development Agency, 433 F.2d 131 (8th Cir. 1970); E. W. Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52 (1st Cir.), cert. denied 385 U.S. 947, 87 S.Ct. 320, 17 L.Ed.2d 226 (1966); Murdock v. City of Jacksonville, 361 F.Supp. 1083 (M.D.Fla.1973). The Court in Lafayette, however, relying on Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), and Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), rejected the contention that a governmental entity’s status as such automatically affords it the “state action” exemption. 435 U.S. at 411, 98 S.Ct. 1123. Rather, the Court concluded that “the Parker doctrine exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or, by its subdivisions, pursuant to state policy to displace competition with regulation or" }, { "docid": "9424998", "title": "", "text": "show Columbia Gulf to transact business in Virginia in the usual and ordinary sense and has failed to allege any other connection between Columbia Gulf and the state. Therefore, venue is improper with respect to Columbia Gulf. Although plaintiff's complaint makes no allegation that System itself transacts business in Virginia, the plaintiff does allege that System is the parent company of subsidiaries, TCo., Services and Pipeline, which do transact business in the State. Under certain circumstances, the parent company of a wholly-owned subsidiary may be subject to jurisdiction and venue under § 12 of the Clayton Act for the adjudication of antitrust claims in the state in which the subsidiary transacts business. See, e.g., Call Carl, Inc. v. BP Oil Corp., 391 F.Supp. 367 (D.Md.1975). However, complete ownership of a subsidiary found or transacting business in a forum is, alone, insufficient to deem the parent corporation also present within the forum. King v. Johnson Wax Associates, 565 F.Supp. 711, 718 (D.Md.1983); Caribe Trailer Systems v. Puerto Rico Maritime Shipping Authority, 475 F.Supp. 711, 717-18 (D.D.C.1979), aff'd, No. 79-1658 (D.C.Cir.1980) (per curiam), cert. denied, 450 U.S. 914, 101 S.Ct. 1355, 67 L.Ed.2d 339 (1981). The essential element required before a court may pierce the corporate veil to reach the foreign parent is control over the conduct of the subsidiary that allegedly violated the antitrust laws. Caribe Trailer Systems, Inc., 475 F.Supp. at 718. Accord, Garshman v. Universal Resources Holding, Inc., 641 F.Supp. at 1364. In evaluating the degree of control needed to find proper venue with a foreign parent under § 12 of the Clayton Act, the Court should examine whether the parent exerts sufficient control over the subsidiary to enable the parent to direct the subsidiary’s internal affairs. See King, 565 F.Supp. at 718. Plaintiff contends that the proper test of venue in cases involving a foreign parent corporation is “the ability of the parent to influence major decisions of the subsidiary which led or could lead to violations of the antitrust laws.” Call Carl, Inc., 391 F.Supp. at 371 (citing Flank Oil Co. v. Continental Oil Co., 277 F.Supp." }, { "docid": "17280046", "title": "", "text": "antitrust scrutiny under the state action doctrine. B We next consider HCEC’s argument that the district court erred in dismissing its § 2 monopolization claim against the Blues under the McCarran-Ferguson Act. HCEC alleged that the Blues had monopolized, attempted to monopolize, and conspired to monopolize “[t]he health care insurance business in Iowa.” Specifically, HCEC alleged that the Blues “have taken over coverage of groups of patients previously afforded third party coverage for chiropractic services by private insurers, thereby creating an economic bias favoring competing medical doctors, depriving the insured Iowans of a reasonable election between chiropractic and medical health care, and depriving [HCEC’s assignors] of patients and income.” The district court dismissed these allegations, concluding that the Blues were exempt from scrutiny under § 2 of the Sherman Act pursuant to the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015, because the Blues were engaged in the “business of insurance” and regulated by state law. HCEC v. IMS, 501 F.Supp. at 993-95. The McCarran-Ferguson Act removes from antitrust scrutiny all conduct which is (1) part of the “business of insurance,” (2) regulated by state law, and (3) not in the form of coercion, intimidation, or boycott. 15 U.S.C. §§ 1012(b), 1013(b); Hahn v. Oregon Physicians Service, 689 F.2d 840, 841-42 (9th Cir.1982); Virginia Academy of Clinical Psychologists v. Blue Shield, 624 F.2d 476, 483 (4th Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981). The first question is thus whether the Blues’ conduct in allegedly monopolizing the market for health care services in Iowa is part of the “business of insurance.” The Supreme Court has set forth three factors to examine in determining whether a particular practice is part of the “business of insurance”: (1) whether the practice has the effect of transferring or spreading a policyholder’s risk, (2) whether the practice is an integral part of the policy relationship between the insurer and the insured, and (3) whether the practice is limited to entities within the insurance industry. Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 129, 102 S.Ct. 3002, 3008, 73 L.Ed.2d 647" }, { "docid": "2078197", "title": "", "text": "state action exemption established in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), precludes any liability by the defendants as a matter of law. Parker immunity is intended to exempt from the antitrust laws state actions that are anticompetitive in nature. “[W]here a restraint upon trade or monopolization is the result of valid governmental action * * * no violation of the [Sherman] Act can be made out.” Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., supra, 365 U.S. at 136, 81 S.Ct. at 529. The Parker doctrine applies to municipal action “in furtherance or implementation of clearly articulated and affirmativelyixpressea state\"’ policy.” Community Communications Co. v. City of Boulder, 455 U.S. 40, 52, 102 S.Ct. 835, 841, 70 L.Ed.2d 810 (1982). Even if zoning in general can be characterized as “state action,” see Sound, Inc. v. American Telephone & Telegraph Co., 631 F.2d 1324, 1334 (8th Cir.1980) (factors relevant to determining “state action”), a conspiracy to thwart normal zoning procedures and to directly injure the plaintiffs by illegally deriving them of their property is not in furtherance of any clearly articulated state policy. See Stauffer v. Town of Grand Lake, 1981-1 CCH Trade Cases ¶ 64,029 at 76,330 (D.Colo., October 9, 1980); Mason City Center Associates v. City of Mason City, 468 F.Supp. 737, 741-744 (N.D.Iowa 1979). See also Guthrie v. Genesee County, 494 F.Supp. 950, 955-958 (W.D.N.Y.1980). III. Finally, we must address plaintiffs’ contentions that the district court erred in granting summary judgment against them on their state law claims: Count 5, which alleged a conspiracy to interfere with plaintiffs’ valid business relationships and contract rights; and Count 7, which challenged the ordinances granting C-2 and C-4 zoning to the defendants. The district court dismissed Count 5 by holding that the efforts of the West Park Mall developers were legitimate business activities and that plaintiffs’ mall failed because of their poor business skills, not because of any actions by the defendants. Because of our finding that the district court erred in making these conclusions as a matter of law, we also reverse" }, { "docid": "6441736", "title": "", "text": "acted “as a commercial entity.” 557 F.2d 580, 592 at n. 10 (action under the Sherman Act would lie where defendant Park District demanded in- - creased revenues from golf course concessionaires). Kurek is quite a different case from the one posed here, since the governmental entities involved are not claimed to have acted as commercial entities, but instead adopted product standards and specifications. Second, Allied argues that “the Noerr-Pennington doctrine does not shield from the antitrust laws concerted efforts to influence decisions of government regarding the adoption of mere specifications. Such activities are not a crucial part of the political process inherent in genuine efforts to influence significant policy decisions by the legislative or executive branches of government.” (Memorandum of Allied in Opposition to WP’s Motion for Summary Judgment, at 37-38; emphasis in original). This “political process” argument seems to be based on the theory that the First Amendment berth given the Sherman Act by the Supreme Court in the Noerr and Pennington cases relates only to questions of electoral politics. This is not the case. In fact, in Noerr itself the railroads were alleged to have vigorously lobbied the legislature to adopt and maintain certain weight standards for over-the-road truckers. ' 365 U.S. at 130, 81 S.Ct. at 525. This lobbying was allegedly motivated by a purpose to keep truckers out of the market for transporting goods. Clearly, the railroads sought legislation “regarding the adoption of mere specifications.” See also Israel v. Baxter Laboratories, Inc., 466 F.2d 272 (D.C.Cir.1972) (Noerr-Pennington doctrine applies to proceedings before, the Food and Drug Administration relative to the approval of a particular drug). Third, Allied argues that anti-competitive actions taken pending the passage of legislation are not protected by Noerr-Pennington. See, e.g., Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 624 F.2d 476, 481-82 (4th Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981) (joint action to challenge state law requiring insurance companies to pay benefits for psychological care protected by Noerr-Pennington doctrine; however, joint action to deny such benefits pending the legislative challenge is not protected)." }, { "docid": "4982505", "title": "", "text": "not to suggest that the Parker doctrine permits each state legislature to determine the extent to which a particular government agency under its control should be exempt from the antitrust laws. As the Court in Parker indicated, “a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful.” 317 U.S. at 351, 63 S.Ct. at 314. The decision did recognize, however, the overriding policy of federalism, namely, that “[i]n a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.” Id. In order for Parker to apply, it is not necessary for a state legislature to direct its instrumentality to perform a specific anti-competitive act. The threshold requirement for Parker immunity is satisfied if the legislature directs its instrumentality to engage in a particular type of activity. As the plurality opinion in City of Lafayette stated: While a subordinate governmental unit’s claim to Parker immunity is not as readily established as the same claim by a state government sued as such, we agree with the Court of Appeals that an adequate state mandate for anticompetitive activities of cities and other subordinate governmental units exists when it is found “from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of.” 435 U.S. at 415, 98 S.Ct. at 1138. In this case, there is no dispute that PRPA and PRMSA are agencies of the Commonwealth of Puerto Rico. The Statement of Motives of Act 62, which established PRMSA, contains'a clear expression of legislative intent: The Legislature of Puerto Rico intends that this instrumentality acquires and operates shipping lines and terminal facilities as a public service, and that in doing so, it shall not be subject to the antitrust laws nor any other limitation that could hinder the effective discharge of" }, { "docid": "4982518", "title": "", "text": "initiative or lobbying by a defendant before granting him immunity. The Parker case itself is proof to the contrary, for there, raisin producers initiated the procedure leading to state restrictions. Their representatives formulated the plan reviewed and approved by the California legislature and the plan took effect only upon a favorable referendum among raisin producers. Plaintiffs’ argument that compulsion is required is also refuted by the Supreme Court’s decision in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 31 S.Ct. 523, 5 L.Ed.2d 464 (1961), in which the Court held that, regardless of anticompetitive purpose or intent, a concerted effort by persons to influence lawmakers to enact legislation beneficial to themselves or detrimental to competitors was not within the scope of the antitrust laws. This decision is based on two principles. The first is that a contrary holding would impede the communication between citizens and their lawmakers, without which a representative democracy could not function. The second element is the threat to the constitutionally protected right of petition that would result from a contrary construction. Id. at 137-38, 31 S.Ct. 523. Thus the actions of some private defendants in lobbying the Puerto Rico government prior to the formation of PRMSA does not preclude their claim to exemption from antitrust liability under the state action exemption. . PRMSA and PRPA have established that they are governmental agencies acting pursuant to a legislative mandate to displace competition with a public monopoly. As such, their actions in acquiring vessels and operating them in the United States-Puerto Rico trade, which form the basis of this complaint, are exempt from antitrust liability under the Parker doctrine. The conduct of the private defendants in selling vessels to PRMSA or in operating them on behalf of PRMSA is similarly immunized. Accordingly, the moving parties’ motions for summary judgment are granted and this action is dismissed. . 15 U.S.C. §§ 1-3 (1976). . Act of Puerto Rico Maritime Shipping Authority, Act No. 62 (June 10, 1974), see Exh. A in Appendix to Puerto Rico Defendants’ Motion to Dismiss the Complaint. . Id. See also" }, { "docid": "8733197", "title": "", "text": "wrongfully discharge him. Courts in other jurisdictions have consistently applied the statute of limitations pertaining to appeals from arbitration awards rather than the longer statute of limitations governing actions bottomed on written contracts when such actions seek to vacate arbitration awards. E.g. Barbarino v. Anchor Motor Freight, Inc., 421 F.Supp. 1003 (W.D.N.Y.1976); DeLorto v. United Parcel Service, Inc., 401 F.Supp. 408 (D.Mass.1975); Hill v. Aro Corp., 275 F.Supp. 482 (N.D.Ohio 1967); contra, Smart v. Ellis Trucking Co., 580 F.2d 215 (6th Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1497, 59 L.Ed.2d 770 (1979). Liotta v. National Forge Co., 629 F.2d 903, 905-06 (3rd Cir. 1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2045, 68 L.Ed.2d 348 (1981). . The court noted that International Union, UAW v. Hoosier Cardinal, 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966), required “the timeliness of a § 301 suit ... is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.” Michigan courts had previously characterized this type of labor dispute as one for injury to person or property governed by the three year period in M.C.L.A. § 600.5805(7). Glowacki v. Motor Wheel Corp., 67 Mich.App. 448, 241 N.W.2d 240 (1976). The Sixth Circuit found no reason to reject this characterization. Smart, 580 F.2d at 217 n.1. . Although M.C.L.A. § 600.5001(3) exempts collective labor contracts from the provisions of the statutory process for arbitration, an employee’s inability to bring direct suit to vacate an arbitration award “does not mean that his § 301 claim, which if successful would have the same effect, is not ‘closely analogous’ to such an action. Mitchell, 451 U.S. at 61 n.3, 101 S.Ct. at 1563 n.3. . Defendants contend that Gas Workers Local No. 80 v. Michigan Consolidated Gas Co., 503 F.Supp. 155 (E.D.Mich.1980), presaged the new rule of Mitchell However, Gas Workers could not fairly be read to provide warning that further reliance on Smart would be misplaced. First, Gas Workers involved a direct action to set aside an arbitration award as beyond the" } ]

[ { "docid": "21590686", "title": "", "text": "it contained nothing faintly resembling a Rule 54(b) certificate. That order is thus not a final judgment under Rule 54(b)_ Nor was the later order entering an agreed judgment disposing of appellants’ claim against [the other two defendants] a final judgment under Rule 54(b) — it contained no certificate, and it did not adjudicate appellants’ rights as against [the first defendant]. Nevertheless, these two orders, considered togeth er, terminated this litigation just as effectively as would have been the case had the district judge gone through the motions of entering a single order formally reciting the substance of the earlier two orders. 473 F.2d at 1231. The instant appeal is on all fours with Jeteo: The summary judgment entered in December was made final and appealable on March 28, 1988, by the entry, on that date, of the Consent Judgment disposing of the remaining defendants. A timely notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam) (cited in In re Air Crash at Dallas/Fort Worth Airport on August 2, 1985, 852 F.2d 842 (5th Cir.1988)). See Houston v. Lack, — U.S. -, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245 (1988). Since the summary judgment entered in favor of American became final and appealable on March 28, Levron then had 30 days in which to file notice of appeal from that judgment or forfeit the right to appeal. The logic of Jeteo has been followed faithfully in this circuit. “[W]e have consistently held that there is an exception to the requirements of Rule 54(b) that allows the separate appeal of a nonfinal judgment where a subsequent judgment of the district court effectively terminates the litigation” (citing several cases). Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 255 (5th Cir.1985). Accord, Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 n. 7 (5th Cir.1980); Tower v. Moss, 625 F.2d 1161, 1165 (5th Cir.1980). See Davidson Oil Country Supply Co. v. Klockner, Inc., 780 F.2d 1258, 1260 (5th Cir.1986). The appellant failed to file" } ]

[ { "docid": "12304449", "title": "", "text": "54(b) certificate permitting the appeal. After the notice of appeal was filed, however, the district court dismissed Bache’s counterclaim at Bache’s request. This dismissal cured the defect caused by the district court’s failure to issue a Rule 54(b) certificate. In Campbell, supra, the court, faced with the same problem, stated that “there is an exception to the requirements of Rule 54(b) that allows the separate appeal of a nonfinal judgment where a subsequent judgment of the district court effectively terminates the litigation.” Id. at 114. See also Jeteo Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973). Accordingly, Rule 54(b) is not a bar to appellate review in this instance. The other jurisdictional issue involves Fed.R.Civ.P. 58 which provides that a final judgment must be “set forth on a separate document.” There is authority in this circuit that an order granting summary judgment is not by itself an appealable order. Calmaquip Eng. West Hemisphere v. West Coast Carriers, 650 F.2d 633, 635-636 (5th Cir. Unit B 1981). In this case, the district court did not enter a final judgment separate from the order granting summary judgment. Bache, however, has never objected to the taking of the appeal without the entry of a separate final judgment and consequently has waived the Rule 58 requirement. Bankers Trust Co. v. Mallis, 435 U.S. 381, 387-388, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (1978). See also Stein v. Reynolds Securities, Inc., 667 F.2d 33, Fn. 1 (11th Cir.1982) (parties can waive Rule 58 requirement of separate document). Because Bache waived this omission, there is appellate jurisdiction over this controversy. The district court granted Bache’s motion for summary judgment because it believed that the release signed by the Finns barred their claims as a matter of law. This release contained the following language: In consideration of the foregoing the undersigned release and forever discharge PBS ... its present and prior officers, directors and employees from any and all claims or causes of action, that have arisen or may arise in law or in equity in connection with any and all investments. Record Excerpts" }, { "docid": "23141028", "title": "", "text": "Campbell, 692 F.2d 112 (11th Cir.1982) (recognizing Jeteo as the rule of the Former Fifth Circuit, binding on the Eleventh Circuit). In Martin v. Campbell, the Fifth Circuit precedent was summarized: In each of these cases the appellant filed his notice of appeal prematurely before all claims had been adjudicated, but the pending claims were later decided. The court held that, considering together the judgment being appealed and the later judgments, the litigation was effectively terminated and, therefore, there was no longer a Rule 54(b) defect in the appeal. 692 F.2d at 114. In choosing between conflicting precedents, this court has held that the older rule is presumptively correct. This is a logical extension of the rule that one panel within this circuit may not overrule the opinion of another. Ryals v. Estelle, 661 F.2d 904 (5th Cir.1981); United States v. Henry, 727 F.2d 1373 (5th Cir. 1984). The preference for the older authority is clearly appropriate here, where Jeteo has been acknowledged repeatedly as the law of this circuit. Jeteo and the cases interpreting it tell us that a premature notice of appeal properly may invoke this court’s jurisdiction. We recognize, of course, that this rule is subject to the exceptions mandated by Fed.R.App.P. 4(a)(4). However, Alcorn County’s notice of appeal was filed after the district court’s denial of its motion for a new trial and is not, under a literal reading of the rule, ineffective. We join the Third Circuit in holding that a premature notice of appeal does invoke appellate jurisdiction except in the narrow circumstances described in Rule 4(a)(4). See Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir.1983). Accordingly, we hold that the notice of appeal filed by Alcorn County on January 3, 1983, was effective, and we turn to the merits of the appeal. V. The district court held that, as a matter of law, Alcorn County was not entitled to submit to the jury its RICO claims or its claim for punitive damages under state law. Reviewing these holdings in turn, we reverse the judgment of the district court with respect" }, { "docid": "12304448", "title": "", "text": "of the discovery period and before a ruling was made on the pending discovery motions. On appeal, the Finns assign error on several grounds. First, they claim that the district court abused its discretion by granting Bache’s motion to dissolve the stay before meaningful discovery had taken place. Second, they contend that the district court erred by holding that there were no material issues of fact remaining as to the invalidity of the release. And, finally, they urge that there was a lack of consideration for the release. Before turning to the merits of the appeal, there are several jurisdictional matters requiring resolution. Although the parties have not pressed these issues, we, of course, are obligated to examine our jurisdiction sua sponte. See Martin v. Campbell, 692 F.2d 112, 114 (11th Cir. 1982). At the time the district court dissolved the stay of the summary judgment, Bache’s counterclaim was still pending before the court. Therefore, the order granting summary judgment was not a final appealable order. Also, the district court did not enter a Rule 54(b) certificate permitting the appeal. After the notice of appeal was filed, however, the district court dismissed Bache’s counterclaim at Bache’s request. This dismissal cured the defect caused by the district court’s failure to issue a Rule 54(b) certificate. In Campbell, supra, the court, faced with the same problem, stated that “there is an exception to the requirements of Rule 54(b) that allows the separate appeal of a nonfinal judgment where a subsequent judgment of the district court effectively terminates the litigation.” Id. at 114. See also Jeteo Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973). Accordingly, Rule 54(b) is not a bar to appellate review in this instance. The other jurisdictional issue involves Fed.R.Civ.P. 58 which provides that a final judgment must be “set forth on a separate document.” There is authority in this circuit that an order granting summary judgment is not by itself an appealable order. Calmaquip Eng. West Hemisphere v. West Coast Carriers, 650 F.2d 633, 635-636 (5th Cir. Unit B 1981). In this case, the district court" }, { "docid": "23141027", "title": "", "text": "on January 28, 1983, when the order fixing the amount of attorney’s fees was entered, and the time for appeal began to run on that date. Oxford Production Credit Association v. Duckworth, 689 F.2d at 589. B. The only notice of appeal filed in this case was filed on January 3, 1983, more than three weeks before the judg ment of the district court became final. We must decide, then, whether the premature notice of appeal properly invokes the jurisdiction of this court. Despite some recent authority to the contrary, the older precedent in this circuit holds that we may consider a premature appeal in those cases where judgment becomes final prior to disposition of the appeal. Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir.1973). The Jetco rule has been recognized and followed in this circuit in a number of cases. See, e.g., Cole v. Tuttle, 540 F.2d 206 (5th Cir.1976); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980); Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022 (5th Cir.1980); Martin v. Campbell, 692 F.2d 112 (11th Cir.1982) (recognizing Jeteo as the rule of the Former Fifth Circuit, binding on the Eleventh Circuit). In Martin v. Campbell, the Fifth Circuit precedent was summarized: In each of these cases the appellant filed his notice of appeal prematurely before all claims had been adjudicated, but the pending claims were later decided. The court held that, considering together the judgment being appealed and the later judgments, the litigation was effectively terminated and, therefore, there was no longer a Rule 54(b) defect in the appeal. 692 F.2d at 114. In choosing between conflicting precedents, this court has held that the older rule is presumptively correct. This is a logical extension of the rule that one panel within this circuit may not overrule the opinion of another. Ryals v. Estelle, 661 F.2d 904 (5th Cir.1981); United States v. Henry, 727 F.2d 1373 (5th Cir. 1984). The preference for the older authority is clearly appropriate here, where Jeteo has been acknowledged repeatedly as the law of this circuit. Jeteo and the cases interpreting" }, { "docid": "9894235", "title": "", "text": "refused to certify its December 6, 1988 order. On June 5, 1989 the court dismissed the intervention of the F.D.I.C. The court dismissed the claims against Charter Oaks and Deloof on August 24, 1989 and a final judgment was entered on August 25, 1989. Since this judgment disposed of all claims, the stay was lifted. Before we may reach the merits of the district court’s disposition of the appellants’ claims, we must first deal with the jurisdictional issues raised by this appeal. Appellate Jurisdiction The plaintiffs filed a notice of appeal before any final judgment was rendered. A final judgment was rendered, however, when the case was under appeal. We have long taken a practical view of what constitutes a final judgment in such circumstances. In Jetco Electronics Inds. v. Gardiner, 473 F.2d 1228 (5th Cir.1973), for example, the district court dismissed a claim, the claim was not certified under Rule 54(b), an appeal was taken, and the last remaining claims were dismissed. We noted that an order was final if it adjudicates the rights of all the parties or if the district court directs entry of judgment on some of the claims after determining that there is no just reason for delay. In Jeteo the claim which was appealed neither terminated the litigation nor was it properly certified under F.R.C.P. 54(b). We reasoned that once the district court dismissed the remaining claims it would be useless to remand the case. No certification is needed if the litigation is effectively terminated. See also Alcom Electronic Exchange, Inc. v. Burgess, 849 F.2d 964, 966-69 (5th Cir.1988); Alcorn County Miss v. U.S. Interstate Supplies, 731 F.2d 1160, 1165-66 (5th Cir.1984); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980); 10 C. Wright, A. Miller, M. Kane Federal Practice and Procedure § 2656 n. 30 (2d ed. 1983); and 6 J. Moore, W. Taggart, and J. Wicker Moore’s Federal Practice 54.28[2] n. 35 (2d ed. 1988). Although the instant appeal satisfies the dictates of 28 U.S.C. § 1291, there are four problems with the notice of appeal. First, the notice is premature. F.R." }, { "docid": "5496433", "title": "", "text": "to adjudicate “the legal consequences of its own fraud and breach of contract.” Reasoning that any improper denial of benefits also constitutes a breach of fiduciary duty under ERISA, the court concluded that the exhaustion requirement would be rendered meaningless if plaintiffs could avoid it simply by recharacterizing their claims for benefits as claims for breach of fiduciary duty. Id. at 826. We find Drinkwater to be persuasive and therefore conclude that Simmons must exhaust her administrative remedies before complaining of a breach of fiduciary duty in federal court. IV. Finally, Simmons asserts that the district court erred in granting summary judgment on her claim that Willcox and ALAD terminated her in order to interfere with her benefits in violation of ERISA. In order to prevail on such a claim, Simmons was required to demonstrate that Willcox and ALAD discharged her with the specific intent of interfering with her ERISA benefits. Clark v. Resistoflex Co., 854 F.2d 762, 770 (5th Cir.1988). However, the record is wholly devoid of any evidence supporting an inference of such an intent on the part of either defendant, and Simmons’s speculative allegations that Willcox had something to gain by terminating her employment are insufficient to create a genuine issue of material fact precluding summary judgment. See id. at 771. AFFIRMED. . In addition to Willcox, ALAD, and MONY, Simmons named as defendants two of ALAD’s affiliated entities, the American Lung Association (\"ALA”) and the American Lung Association of Texas (\"ALAT”), and Corporate Benefit Systems, Inc. (\"CBS”), the company that took over the administration of ALAD’s employee benefit plan from MONY after Simmons’s termination. . We previously asked the parties to address the issue of appellate jurisdiction in their briefs, and they have done so. . Presumably, Simmons did so in order to avoid dismissal of her appeal in the event that we found the first notice of appeal to be ineffective. . The plaintiff did not seek a rule 54(b) certification from the district court. . The Jeteo rule has been cited and followed in numerous subsequent decisions of this court. E.g., Levron v. Gulf" }, { "docid": "9894236", "title": "", "text": "of all the parties or if the district court directs entry of judgment on some of the claims after determining that there is no just reason for delay. In Jeteo the claim which was appealed neither terminated the litigation nor was it properly certified under F.R.C.P. 54(b). We reasoned that once the district court dismissed the remaining claims it would be useless to remand the case. No certification is needed if the litigation is effectively terminated. See also Alcom Electronic Exchange, Inc. v. Burgess, 849 F.2d 964, 966-69 (5th Cir.1988); Alcorn County Miss v. U.S. Interstate Supplies, 731 F.2d 1160, 1165-66 (5th Cir.1984); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980); 10 C. Wright, A. Miller, M. Kane Federal Practice and Procedure § 2656 n. 30 (2d ed. 1983); and 6 J. Moore, W. Taggart, and J. Wicker Moore’s Federal Practice 54.28[2] n. 35 (2d ed. 1988). Although the instant appeal satisfies the dictates of 28 U.S.C. § 1291, there are four problems with the notice of appeal. First, the notice is premature. F.R. A.P. 4(a)(2) states “a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry.” We have not construed 4(a)(2) strictly and have held that a notice of appeal filed before a judgment is announced and entered is valid. See e.g., Alcom, 849 F.2d at 966-69 and Alcorn, 731 F.2d at 1165-66. But see United States v. Hansen, 795 F.2d 35, 37-38 (7th Cir.1986) (holding that F.R.A.P. 4(a)(2) saves a premature notice of appeal only if it is filed after a final judgment is announced but before it is entered). Second, the notice does not specify the parties taking the appeal. The failure to properly designate the appellants is usually fatal. See, e.g., Torres v. Oakland Scavenger, 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). This defect may be cured, however, by filing a supporting memorandum or some other paper which contains the names of each appellant. See Brotherhood of Railway Carmen v. Atchison, Topeka" }, { "docid": "5496430", "title": "", "text": "under the rule first announced in Jeteo Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228 (5th Cir.1973), cured the defect in the earlier appeal. In Jeteo, the plaintiff filed a premature notice of appeal from an order dismissing one of three defendants. Several months later, the district court entered an agreed judgment disposing of plaintiff’s claims against the two remaining defendants. While recognizing that the notice of appeal did not meet the requirements of rule 54(b), we nevertheless concluded that we had jurisdiction to “consider a premature appeal in those cases where judgment becomes final prior to disposition of the appeal.” Alcorn County, Miss. v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1166 (5th Cir.1984) (interpreting Jeteo ). We thus agree with the parties that, under Jeteo and its progeny, the defect in Simmons’s January 10 notice of appeal was cured by the two subsequent orders, which terminated the litigation pri- or to the disposition of this appeal. Moreover, we conclude that Simmons’s June 1 notice of appeal, filed as a precautionary measure after the order dismissing CBS, is sufficient to create appellate jurisdiction over this case even in the absence of the Jeteo rule. Accordingly, we proceed to evaluate the merits of Simmons’s claims. III. Simmons first contends that the district court erred in dismissing her claims for benefits and for breach of fiduciary duty on the ground that she failed to exhaust administrative remedies. While acknowledging both the fact that she filed no claim for benefits with MONY and the general rule that no cause of action accrues under ERISA until such an application is actually filed and denied, see Paris v. Profit Sharing Plan, 637 F.2d 357, 361 (5th Cir. Feb. 1981), cert. denied, 454 U.S. 836, 102 S.Ct. 140, 70 L.Ed.2d 117 (1981), Simmons nevertheless argues that exhaustion should not be required in her case because the defendants withheld information regarding the status of her benefits. This allegation, however, finds no support in the record, which instead demonstrates that the defendants were quite forthcoming and cooperative. When Simmons wrote to Willcox shortly after her termination to" }, { "docid": "4456362", "title": "", "text": "Salen Protexa did not obtain a Rule 54(b) certificate that would have permitted it to take an appeal from the April 23 judgment. Nevertheless, we have consistently held that there is an exception to the requirements of Rule 54(b) that allows the separate appeal of a nonfinal judgment where a subsequent judgment of the district court effectively terminates the litigation. See Alcorn County v. U.S. Interstate Supplies, 731 F.2d 1160, 1166 (5th Cir.1984); Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 n. 7 (5th Cir.1980); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980); Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973); see also Cape May Greene, Inc. v. Warren, 698 F.2d 179, 184-85 (3d Cir. 1983); Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982); Pireno v. New York State Chiropractic Association 650 F.2d 387, 389-90 n. 4 (2d Cir.1981), aff’d sub nom. Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982); Anderson v. Allstate Insurance Co., 630 F.2d 677, 680-81 (9th Cir.1980). In Jetco, the district court dismissed the action as to one of three defendants, who then filed a premature notice of appeal, and several months later the court entered an agreed judgment as to the remaining defendants. We gave effect to the notice of appeal as of the date of the agreed judgment, heeding the admonition of Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 310, 13 L.Ed.2d 199 (1964), that “practical, not technical considerations are to govern the application of principles of finality.” In the instant case, we do not confront any of the specific prohibitions against giving effect to premature notices of appeal that are enumerated in Fed.R. App.P. 4(a)(4). Alcorn County, 731 F.2d at 1166. “[Tjhere is no danger of piecemeal appeal confronting us if we find jurisdiction here, for nothing else remains in the federal courts.” Anderson, 630 F.2d at 681. Hence, because the June 4 dismissal of Salen Offshore, when viewed in conjunction with the April 23 judgment against Salen Protexa, effectively terminated this" }, { "docid": "5496429", "title": "", "text": "1989, the district court entered an order granting summary judgment to Willcox, ALAD, ALA, and ALAT, thus leaving MONY and CBS as the only defendants remaining in the case. Without seeking a Fed.R.Civ.P. 54(b) certification from the district court, Simmons filed a notice of appeal (No. 90-1030) on January 10, 1990. Subsequently, in two orders dated March 6 and May 2, 1990, the district court dismissed MONY and CBS from the litigation. Simmons filed a second notice of appeal (No. 90-1426) on June 1 and, shortly thereafter, moved to consolidate the appeals and to adopt the briefs filed in the prior appeal. That unopposed motion was granted on June 15. The parties agree that the December 11 order was not final and appealable in that it did not adjudicate “the rights and liabilities ... [of] all the parties,” see Fed.R. Civ.P. 54(b), and, accordingly, that the January 10 notice of appeal was premature. However, they also agree that that order, combined with the two subsequent orders dismissing MONY and CBS, effectively terminated the litigation and, under the rule first announced in Jeteo Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228 (5th Cir.1973), cured the defect in the earlier appeal. In Jeteo, the plaintiff filed a premature notice of appeal from an order dismissing one of three defendants. Several months later, the district court entered an agreed judgment disposing of plaintiff’s claims against the two remaining defendants. While recognizing that the notice of appeal did not meet the requirements of rule 54(b), we nevertheless concluded that we had jurisdiction to “consider a premature appeal in those cases where judgment becomes final prior to disposition of the appeal.” Alcorn County, Miss. v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1166 (5th Cir.1984) (interpreting Jeteo ). We thus agree with the parties that, under Jeteo and its progeny, the defect in Simmons’s January 10 notice of appeal was cured by the two subsequent orders, which terminated the litigation pri- or to the disposition of this appeal. Moreover, we conclude that Simmons’s June 1 notice of appeal, filed as a precautionary measure after the" }, { "docid": "18763767", "title": "", "text": "under Cohen and the court found that denial of immediate review would not render meaningful review at a later time impossible. Miller, 581 F.2d at 1182. Presumably, that court would not hold that a discovery sanction order was immediately appealable unless it, too, met this test. . The irreparable injury exception is akin to the final order exception of Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848), which allows an appeal from orders which would cause hardship or irreparable injury to the appealing party. . This interpretation is consistent with the rule noted in Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365 (11th Cir.), cert. denied, 464 U.S. 893, 104 S.Ct. 239, 78 L.Ed.2d 230 (1983), that a certification of final judgment under Rule 54(b) cannot for purposes of appeal render final a judgment that is interlocutory. Id. at 1369. . Insofar as the discussed distinctions may be insufficient, Kleiner and McLaughlin still would not require a difference conclusion as Jeteo and Taylor, the older precedents, control until overruled by an en banc court. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc). . Aside from the Alcorn County decision, the Fifth Circuit has interpreted Jetco in a manner consistent with this opinion. See Davidson Oil Country Supply Co. v. Klockner, Inc., 780 F.2d 1258, 1259-60 (5th Cir.1986); Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1305 & n. 1 (5th Cir.1985); Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 255 (5th Cir. 1985). . Robinson’s \"Motion to Overrule Sanctions and Dismissal Order’’ is denied because this court is without jurisdiction to consider it." }, { "docid": "22162685", "title": "", "text": "and Manitowoc has asserted that it did not become aware of the present suit until January 1985 when it “inadvertently stumbled upon it.” Accordingly, the burden in this respect being on appellants, we assume that Manitowoc was not aware of the present suit until January 1985, that prior thereto appellants did not believe Manitowoc was aware of the suit, and that Manitowoc had no reason to be aware of it. Under these circumstances, no good cause for failure to effect timely service exists. Appellants also urge that the dismissal has the practical effect of a dismissal with prejudice, only dismissal without prejudice being authorized under Rule 4(j), since limitations has run. Even laying aside that the removed suit (No. 84-4255) is apparently still pending, the fact that limitations has run does not prevent a Rule 4(j) dismissal. We so held in Redding v. Essex Crane Rental Corporation of Alabama, 752 F.2d 1077 (5th Cir.1985), with which appellants’ counsel should be familiar. See also Wei, 763 F.2d at 372. The dismissal is accordingly AFFIRMED. . We note, sua sponte, a matter respecting our jurisdiction. When the notice of appeal was given, appellants' suit was still pending against Teledyne, and no certification was made by the district court under Fed.R.Civ.P. 54(b). Ordinarily, this would require dismissal of the appeal. However, we are informed by both parties that the district court has now also dismissed this suit as against Teledyne. Accordingly, the suit is completely terminated and we have jurisdiction under the rule of Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973). See, e.g., Sandidge v. Salem Offshore Drilling Co., 764 F.2d 252, 255 (5th Cir.1985); Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982) (applying Fifth Circuit precedents). . See 10 Wright & Miller, Federal Practice and Procedure: Civil § 1138 at 261 (1985 Pocket Part): \"The time limits in Rule 4(j), although they are meant to be strictly enforced, are not unduly harsh, as the time may be enlarged by the court pursuant to Rule 6(b), if necessary.” (Footnote omitted.) . Appellants say the state suit was" }, { "docid": "5496428", "title": "", "text": "On appeal, Simmons contests only the summary judgment in favor of ALAD, Willcox, and MONY on her ERISA claims. Citing the familiar principle that exhaustion of administrative remedies will not be required where an attempt to exhaust would be patently futile, see, e.g., Hess- brook v. Lennon, 777 F.2d 999, 1003 (5th Cir.1985), Simmons argues that she could not pursue the remedies provided for in ALAD’s employee benefit plan because the defendants gave her inconsistent and misleading information regarding the status of her benefits. In addition, Simmons maintains that genuine issues of material fact remained as to whether ALAD and Willcox terminated her in order to interfere with her retirement benefits, and therefore, that the district court erred in granting summary judgment on that claim. II. Before reaching the merits of Simmons’s case, we must examine the basis of our jurisdiction, on our own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987). In order to do so, we must first briefly review the procedural history of this appeal. On December 11, 1989, the district court entered an order granting summary judgment to Willcox, ALAD, ALA, and ALAT, thus leaving MONY and CBS as the only defendants remaining in the case. Without seeking a Fed.R.Civ.P. 54(b) certification from the district court, Simmons filed a notice of appeal (No. 90-1030) on January 10, 1990. Subsequently, in two orders dated March 6 and May 2, 1990, the district court dismissed MONY and CBS from the litigation. Simmons filed a second notice of appeal (No. 90-1426) on June 1 and, shortly thereafter, moved to consolidate the appeals and to adopt the briefs filed in the prior appeal. That unopposed motion was granted on June 15. The parties agree that the December 11 order was not final and appealable in that it did not adjudicate “the rights and liabilities ... [of] all the parties,” see Fed.R. Civ.P. 54(b), and, accordingly, that the January 10 notice of appeal was premature. However, they also agree that that order, combined with the two subsequent orders dismissing MONY and CBS, effectively terminated the litigation and," }, { "docid": "5496435", "title": "", "text": "Int’l Marine, Inc., 854 F.2d 777, 779-80 (5th Cir.1988) (per curiam); Alcorn Elec. Exchange, Inc. v. Burgess, 849 F.2d 964, 966-69 (5th Cir.1988) (criticizing, but continuing to follow, the Jeteo rule); Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 255 (5th Cir.1985); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980). See also Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982) (recognizing Jeteo as the rule of the former Fifth Circuit and thus binding on the Eleventh Circuit). .Although the parties have not called our attention to it in their briefs, we note that the judgment in this case is not contained in a \"separate document” as required by Fed.R.Civ.P. 58. However, we consistently have recognized that the separate document requirement is not jurisdictional and that parties are free to waive it. See Seiscom Delta Inc. v. Two Westlake Park (In re Seiscom Delta, Inc.), 857 F.2d 279, 282 (5th Cir.1988) (citing Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 98 S.Ct. 1117, 1120, 55 L.Ed.2d 357 (1978) (per curiam)). Here, neither of the parties has insisted upon a separate document or objected to the lack thereof; accordingly, the separate document rule is not a barrier to our consideration of this appeal. . See also Denton v. First Nat’l Bank, 765 F.2d 1295, 1303 (5th Cir.1985) (plaintiff must exhaust administrative remedies before filing lawsuit to collect ERISA benefits); Makar v. Health Care Corp., 872 F.2d 80, 82-83 (4th Cir.1989) (same); Kross v. Western Elec. Co., 701 F.2d 1238, 1245 (7th Cir.1983) (same); Amato v. Bernard, 618 F.2d 559, 567-68 (9th Cir.1980) (same). . On appeal, Simmons maintains that the fact that Zellmer provided her with inconsistent figures somehow prevented her from filing an application for benefits. However, Simmons admitted at her deposition that she would not have filed an application even if Zellmer had given her consistent figures. . The foregoing analysis applies to Simmons’s statutory claims for breach of fiduciary duty under ERISA. To the extent that Simmons’s fiduciary duty claims are premised upon state law, they are, of course, preempted by ERISA. See 29 U.S.C." }, { "docid": "23686549", "title": "", "text": "absence of “the entry [by the district court] of a final judgment as to one or more but fewer than all of the claims or parties ... upon an express determination that there is no just reason for delay,” Fed.R.Civ.P. 54(b), it is clear that there is no final judgment in terms of § 1291 and that this Court is without jurisdiction to consider the appeal. William B. Tanner Co. v. United States, 575 F.2d 101 (6th Cir.1978). However, we learned from plaintiffs’ counsel for the first time during oral argument that none of the individual hospital defendants remain in the case. Thus, we are presented with the question of whether a premature notice of appeal is effective to vest this Court with jurisdiction where the remaining elements of the case have been finally disposed of but no new notice of appeal has been filed. Every circuit that has had occasion to address this question has held that an interlocutory appeal lacking the requisite rule 54(b) certification invokes appellate jurisdiction where judgment becomes final prior to disposition of the appeal. See Pireno v. New York Chiropractic Ass’n, 650 F.2d 387, 389-90 n. 4 (2d Cir.1981), aff'd sub nom. Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982); Richerson v. Jones, 551 F.2d 918, 922-23 (3d Cir.1977); Tilden Financial Corp. v. Palo Tire Service, Inc., 596 F.2d 604,-606-07 (3d Cir.1979); Cape May Greene, Inc. v. Warren, 698 F.2d 179, 184-85 (3d Cir.1983); Jeteo Electronic Industries v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973); Tower v. Moss, 625 F.2d 1161,1164-65 (5th Cir.1980); Alcorn County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1165-66 (5th Cir.1984); Anderson v. Allstate Insurance Co., 630 F.2d 677, 681 (9th Cir.1980); Baker v. Limber, 647 F.2d 912, 916 (9th Cir.1981); Martin v. Campbell, 692 F.2d 112 (11th Cir.1982). A contrary holding would create a split in the circuits, which we are reluctant to do on an issue such as this. Although we do not condone plaintiffs’ sloppy practice, we con-elude that we have jurisdiction to consider the appeal in" }, { "docid": "20690289", "title": "", "text": "this case, the notice of appeal was filed before a final judgment was either announced or entered, and there could be no reason to think the notice would do service for an appeal from the final judgment. 795 F.2d at 38. This panel might follow the reasoning set forth in Hansen, if we were not bound by a prior panel decision which expressly adopted the position set forth in Cape May Greene. See Alcorn County, Miss. v. U.S. Interstate Supplies, 731 F.2d 1160, 1165-66 (5th Cir.1984). This court in Alcorn primarily relied on an earlier panel decision, Jetco Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228 (5th Cir.1973), which held that we had jurisdiction to consider a premature appeal, and declined to follow a later contrary panel decision, United States v. Taylor, 632 F.2d 530 (5th Cir.1980), which, relying on Fed.R.App.P. 4(a), held that a final judgment does not retroactively validate a premature notice of appeal. In Alcorn, we noted that the Jeteo rule had been followed in this circuit, see Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 255 (5th Cir.1985); Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 n. 7 (5th Cir.1980); Tower v. Moss, 625 F.2d 1161, 1163-65 (5th Cir.1980), and, reasoning that where precedents conflict the older rule is presumptively correct, we rejected the contrary rule set forth in Tay lor. Alcorn, 731 F.2d at 1166 (\"The preference for the older authority is clearly appropriate here, where Jeteo has been acknowledged repeatedly as the law of this circuit.”). We then expressly adopted the position set forth in Cape May Greene, stating that “[w]e join the Third Circuit in holding that a premature notice of appeal does invoke appellate jurisdiction except in the narrow circumstances described in Rule 4(a)(4).” Alcorn, 731 F.2d at 1166. There are difficulties with our reliance upon Jeteo. While Jeteo was decided in 1973, Rule 4(a)(2), Fed.R.App.P., was enacted in 1979. It is the 1979 rule that governs and presents the problem. Looking at the terms of that rule, it provides for the postponement of a premature notice’s effective date only" }, { "docid": "23010832", "title": "", "text": "judge with instructions. Id. In short, “the magistrate has no authority to make a final and binding disposition.” United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Systemic interests in the conservation of judicial resources dictate that a party must not appeal an order simply because he believes it will be adverse. Only where the appealing party is fully certain of the court’s disposition, such that the entry of final judgment is predictably a formality, will appeal be proper. Cf., e.g., American Totalisator, 3 F.3d at 813 (“All that remained was the clerk’s ministerial task of entering a Rule 58 judgment.”). FirsTier allows premature appeals only where there has been a final decision, rendered without a formal judgment. Because a magistrate judge’s report and recommendation can never be a final decision, Cooper’s appeal therefrom was improper. III. Our attention is also drawn to a line of Fifth Circuit cases that takes a much broader view of appellate jurisdiction. In Alcom County, Miss. v. U.S. Interstate Supplies, Inc., 731 F.2d 1160 (5th Cir.1984), this court concluded that, except in the narrow circumstances covered by rule 4(a)(4), “we may consider a premature appeal in those eases where judgment becomes final prior to disposition of the appeal.” Id. at 1166 (citing Jeteo Elec. Indus. v. Gardiner, 473 F.2d 1228 (5th Cir.1973)). This rule was questioned but followed nevertheless in Alcom Elec. Exch., Inc. v. Burgess, 849 F.2d 964, 966-69 (5th Cir.1988). Although decisions subsequent to FirsTier have questioned whether the Jetco-Alcorn-Alcom line remains good law after that decision, none has found it necessary to decide the issue. See Barrett v. Atlantic Richfield Co., 95 F.3d 375, 379 n. 5 (5th Cir.1996); Resolution Trust Corp. v. Northpark Joint Venture, 958 F.2d 1313, 1317 n. 5 (5th Cir. 1992). Today we recognize that in light of FirsTier, this expansive view of appellate jurisdiction cannot survive. FirsTier made plain that a premature notice of appeal operates as a valid one “only when a district court announces a decision that would he appealable if immediately followed by the entry of judgment.” 498" }, { "docid": "20690290", "title": "", "text": "Drilling Co., 764 F.2d 252, 255 (5th Cir.1985); Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 n. 7 (5th Cir.1980); Tower v. Moss, 625 F.2d 1161, 1163-65 (5th Cir.1980), and, reasoning that where precedents conflict the older rule is presumptively correct, we rejected the contrary rule set forth in Tay lor. Alcorn, 731 F.2d at 1166 (\"The preference for the older authority is clearly appropriate here, where Jeteo has been acknowledged repeatedly as the law of this circuit.”). We then expressly adopted the position set forth in Cape May Greene, stating that “[w]e join the Third Circuit in holding that a premature notice of appeal does invoke appellate jurisdiction except in the narrow circumstances described in Rule 4(a)(4).” Alcorn, 731 F.2d at 1166. There are difficulties with our reliance upon Jeteo. While Jeteo was decided in 1973, Rule 4(a)(2), Fed.R.App.P., was enacted in 1979. It is the 1979 rule that governs and presents the problem. Looking at the terms of that rule, it provides for the postponement of a premature notice’s effective date only where that notice is filed after announcement of final judgment but before entry of that judgment. Rule 4(a)(4), Fed.R.App.P., renders Rule 4(a)(2) ineffective where certain motions have been filed, but reflects no intent to broaden the effect of Rule 4(a)(2) beyond its express terms. Such an interpretation would render Rule 4(a)(2) virtually superfluous since the purpose served by that Rule would also be fulfilled by Rule 4(a)(4). This court in Alcom, however, addressed both Jeteo and Taylor, and decided to follow the rule set forth in Jeteo and Cape May Greene. Because we are bound by the panel’s decision in Alcom, we must also reject the Taylor rule and follow Jet-eo. Accordingly, we hold that the premature notice of appeal filed by Alcom on January 8, 1988, was effective. III. Diversity Jurisdiction After removal from state court, Alcom moved to remand this action, contending that diversity jurisdiction did not exist because both Alcom and Burgess were citizens of Mississippi. See 28 U.S.C. § 1441(b). The defendants contended that Burgess was fraudulently joined, and was thus" }, { "docid": "5496434", "title": "", "text": "an intent on the part of either defendant, and Simmons’s speculative allegations that Willcox had something to gain by terminating her employment are insufficient to create a genuine issue of material fact precluding summary judgment. See id. at 771. AFFIRMED. . In addition to Willcox, ALAD, and MONY, Simmons named as defendants two of ALAD’s affiliated entities, the American Lung Association (\"ALA”) and the American Lung Association of Texas (\"ALAT”), and Corporate Benefit Systems, Inc. (\"CBS”), the company that took over the administration of ALAD’s employee benefit plan from MONY after Simmons’s termination. . We previously asked the parties to address the issue of appellate jurisdiction in their briefs, and they have done so. . Presumably, Simmons did so in order to avoid dismissal of her appeal in the event that we found the first notice of appeal to be ineffective. . The plaintiff did not seek a rule 54(b) certification from the district court. . The Jeteo rule has been cited and followed in numerous subsequent decisions of this court. E.g., Levron v. Gulf Int’l Marine, Inc., 854 F.2d 777, 779-80 (5th Cir.1988) (per curiam); Alcorn Elec. Exchange, Inc. v. Burgess, 849 F.2d 964, 966-69 (5th Cir.1988) (criticizing, but continuing to follow, the Jeteo rule); Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 255 (5th Cir.1985); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980). See also Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982) (recognizing Jeteo as the rule of the former Fifth Circuit and thus binding on the Eleventh Circuit). .Although the parties have not called our attention to it in their briefs, we note that the judgment in this case is not contained in a \"separate document” as required by Fed.R.Civ.P. 58. However, we consistently have recognized that the separate document requirement is not jurisdictional and that parties are free to waive it. See Seiscom Delta Inc. v. Two Westlake Park (In re Seiscom Delta, Inc.), 857 F.2d 279, 282 (5th Cir.1988) (citing Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 98 S.Ct. 1117, 1120, 55 L.Ed.2d 357 (1978) (per curiam)). Here, neither" }, { "docid": "4456361", "title": "", "text": "that (1) the district court erred in not permitting Salen Protexa’s counsel to inquire during voir dire whether the prospective jurors would give more weight to a videotaped deposition than to a written deposition; (2) the court abused its discretion in commenting on the modes of presenting deposition testimony; and (3) the court committed reversible error by commenting on an ultimate issue of fact when instructing the jury- II. Preliminarily we must consider on our own motion whether we have appellate jurisdiction. On May 21, Salen Protexa filed its notice of appeal from the April 23 judgment — a judgment that only disposed of Sandidge’s claim against Salen Protexa. Although Sandidge had previously settled his claim with Salen Offshore, that claim was not dismissed from the case until June 4, after Salen Protexa filed its notice of appeal. Hence, regardless of the district court’s nomenclature, the April 23 judgment did not constitute a final judgment at the time it was entered since Sandidge’s claim against Salen Offshore was then still pending. See Fed.R.Civ.P. 54(b). Moreover, Salen Protexa did not obtain a Rule 54(b) certificate that would have permitted it to take an appeal from the April 23 judgment. Nevertheless, we have consistently held that there is an exception to the requirements of Rule 54(b) that allows the separate appeal of a nonfinal judgment where a subsequent judgment of the district court effectively terminates the litigation. See Alcorn County v. U.S. Interstate Supplies, 731 F.2d 1160, 1166 (5th Cir.1984); Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 n. 7 (5th Cir.1980); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980); Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973); see also Cape May Greene, Inc. v. Warren, 698 F.2d 179, 184-85 (3d Cir. 1983); Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982); Pireno v. New York State Chiropractic Association 650 F.2d 387, 389-90 n. 4 (2d Cir.1981), aff’d sub nom. Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982); Anderson v. Allstate Insurance Co., 630 F.2d 677, 680-81" } ]

[ { "docid": "13389562", "title": "", "text": "slightly greater than the plaintiffs’ stocking finds sufficient support (a) in the testimony of plaintiffs’ expert witnesses, (b) in the experiments revealing that about four times as much tension could be placed on the “Helanca” than that used in the defendant’s knitting process, and (c) in the admissions contained in the advertisements. The court not unreasonably was influenced by inconsistencies in the testimony of defendant’s experts and their comparatively limited experience in the particular kind of hosiery knitting involved. Thus the trial court found the testimony of defendant’s experts less credible than that of the plaintiffs’. This record is an appropriate one for the application of what the Supreme Court has said with regard to Rule 52 (a), Fed.RuIes Civ.Proc. 28 U.S.C.A. in patent cases: “To no type of case is this last clause more appropriately applicable than to the one before us, where the evidence is largely the testimony of experts as to which a trial court may be enlightened by scientific demonstrations.” Graver Tank & Mfg. Co. v. Linde Air Products Co., 1949, 336 U.S. 271, 274, 69 S.Ct. 535, 537, 93 L.Ed. 672. Finally, we sustain the court’s refusal to award attorneys’ fees to the plaintiffs. The patent statute, 35 U.S. C.A. § 285, provides: “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” (Emphasis supplied.) The plaintiffs have completely failed to show why this is an “exceptional” case meriting an award of counsel fees. There has been no showing of unconscionable conduct or bad faith or any other circumstances which might make such an award proper. In American Chain & Cable Co. v. Rochester Ropes, 4 Cir., 1952, 199 F.2d 325, 330, we pointed out: “While the allowance of reasonable counsel fees to the defendant in a patent case is within the discretion of the District Court under 35 U.S.C.A. § 70, we have held that the discretion should not be exercised except in situations involving vexatious and unjustified litigation * * See also: Phillips Petroleum Co. v. Esso Standard Oil Co., D.C.D.Md.1950, 91 F. Supp. 215, affirmed 4 Cir., 1950," } ]

[ { "docid": "15557966", "title": "", "text": "name of May Hosiery Mills was changed to The May Corporation. 3. The Sarbo patent was issued on an application having an actual filing date of November 12, 1959, and an effective filing date, under the International Convention, of November 19, 1958. The patent in suit, No. 3,059,458, named Edgar G. Sarbo, of Vienna, Austria, as the inventor and while the application was pending in the U. S. Patent Office the patent rights were assigned by Edgar G. Sarbo to Bruder Sarbo, also of Vienna, Austria. On or about December 3, 1964, the patent was assigned by Bruder Sarbo to Renfro Hosiery Mills Company, a North Carolina corporation, and on or about January 26, 1965, was assigned by Renfro to May Hosiery Mills pursuant to an agreement of December 22, 1964. The patent was then assigned by May Hosiery Mills to the plaintiff, Wayne Knitting Mills, on July 3, 1965. 4. Prior to Sarbo’s method and product in 1958, shoe-top-length foot socks were available in the market but were made either from flat knitted fabric, which was then cut and sewn into the desired shape and provided with a sewn-in elastic rim around the foot entry opening or knitted as a regular sock, having reciprocated heel and toe pockets which would then be cut down at the top and provided with a sewn-in elastic rim around the foot entry opening. The defendant, Russell Hosiery Mills, Inc., was making a cut and sewn shoe-top-length sock at the time it began making the Sarbo type sock in July, 1964. These shoe-top-length foot socks were not only comparatively expensive to manufacture due to the fact that cutting and sewing had to be performed but also were rather uncomfortable by reason of the fact that they were provided with a heavy band or rim of elastic sewn around the foot opening which tended to burrow into the foot of the wearer due to the pressure of the shoe. Cutting and sewing is a time consuming operation requiring skilled operators and entailing considerable waste. 5. The sock of the Sarbo invention is a symmetrical pouch-like" }, { "docid": "2482115", "title": "", "text": "styles are characterized by being extremely elastic and extensible for being fitted in a highly stretched condition upon the asymmetrical configuration of the lower part of the foot of a wearer with the foot cover being of such height as to be positioned below the ankle in foot hugging, stretched condition, completely concealed from view when worn within lowcut shoes. The foot covers comprise: a. A seamless stretchable tubular rim including at least some rubber threads— said rim being adapted to form an opening for a foot entry, b. A seamless stretchable tubular body having an axial length greater than that of said rim and connected with said rim, c. A seam found at the end of said body opposite said rim, d. The body of the foot cover is adapted to function as tip, sole and heel portions of the foot cover, and e. Upon placing the foot cover on the lower part of a foot, the attendant stretching of the foot cover reduces the combined axial length of the rim and the body and the foot cover fits over and hugs on the lower portion of the foot with the rim positioned on the asymmetrical portion of the foot below the ankle. f. The combined axial length of the rim and body portions of the finished foot covers is within the range of about 5 to 7 centimeters. g. While the Sondra footsoeks use combinations of plain stitches and float stitches, the accused footsoeks essentially consist of the same knitted structure throughout its axial length. 75. Spandex thread is a synthetic rubber or rubber-like material, and is, in fact, rubber in the sense that the term “rubber” is used in claims 4 and 5 of the Sarbo reissue patent. 76. There are three types pf Sondra footsoeks in issue herein — the regular Style 40, Style 50, and Liberty style. 40 . The regular Styles 40 and 50 have rims which are knit entirely of covered spandex yarn. The covered spandex yarn forming the knitted stitches of the regular Styles 40 and 50 rims is composed of 1)" }, { "docid": "2482142", "title": "", "text": "appellate court decisions by Judges Gordon and Winter in Wayne Knitting Mills v. Russell Hosiery Mills, 274 F.Supp. 934 (M.D.N.C.1967), reversed, 400 F.2d 964 (4th Cir. 1968), as an indication that the critical feature or the novelty of the invention is the laid-in rubber rim. Defendants argue that in the subsequent Russell cases, C-223-R-69 (M.D.N.C. August 28, 1972), affirmed, 483 F.2d 770 (4th Cir. 1973) and in Wayne-Gossard Corp. v. Moretz Hosiery Mills, Inc., 384 F.Supp. 63 (W.D.N.C.1974), affirmed, No. 75-1240 (4th Cir. March 15, 1976) the courts implicitly accepted Judge Gordon’s alleged characterization of the new and novel element of the patent to be the laid-in rubber rim. On the other hand, plaintiff argues that Judge Gordon referred to the laid-in rubber rim because that was the only thing before him. Thus, there was no issue presented which would require the judge to make any distinction between laid-in and knit-in rubber. We do not read the various judicial decisions cited by defendants as defendants do. The references to laid-in rubber in these opinions are really concerned with making a distinction between footsocks with rubber threads incorporated through knitting into the rim and footsocks with a rubber band sewn into the rim. Read in proper context, plaintiff’s interpretation of the references by the courts to the laid-in rubber rim is correct. For example, the Fourth Circuit opinion in Wayne-Gossard Corporation v. Moretz Hosiery Mills, Inc., supra, characterized the Sarbo reissue patent as follows: The relevant subject of the original and reissue patents is a knitted stretched yarn foot cover, (to be work in a ladies (sic) shoe), with the method of its manufacture . . . It is enough now to observe that the patentability of the cover and its fashioning, as described in Claims 4 and 5 of the reissue, is found in these characteristics of the cover: its service as a sock in a low-cut shoe, “with the foot cover being of such height as to be positioned below the ankle in foot hugging, stretched condition, completely concealed from view when worn with low cut shoes”; the absence" }, { "docid": "2482150", "title": "", "text": "4 and 5 of the Sarbo reissue patent. The Sondra footsocks are extremely elastic and extensible for being fitted in a highly stretched condition upon the asymmetrical configuration of the lower part of the foot of a wearer with the footsocks being of such height as to be positioned below the ankle in a foot-hugging stretched condition. They are completely concealed from view when worn within low-cut shoes and have seamless stretchable tubular rims including at least some rubber threads — -said rims being adapted to form an opening for a foot entry. They have seamless stretchable tubular bodies having an axial length greater than that of said rims and connected with said rims. While the Sondra footsocks use combinations of plain stitches and float stitches, the accused footsocks essentially consist of the same knitted structure throughout their axial length. The body of the Sondra footsocks are adapted to function as tip, sole and heel portions of the footcover, and upon placing the Sondra footsocks on the lower part of a foot, the attendant stretching of the foot-sock reduces the combined' axial length of the rim and the body and the footsock fits over and hugs on the lower portion of the foot with the rim positioned on the asymmetrical portion of the foot below the ankle. Finally, the combined axial length of the rim and body portions of the Sondra footsocks is within the range of about 5 to 7 centimeters. There are some distinctions pointed out by defendants — the knit-in-rubber rim and the differences between the knitting stitches, for example, which we find to be insubstantial distinctions. However, even if not so characterized, the Sondra socks clearly would infringe the Sarbo footsocks by virtue of the doctrine of equivalents. The doctrine of equivalents may be invoked by a patentee when the alleged infringing product “. . . performs substantially the same function in substantially the same way to obtain the same result.” Graver Tank and Mfg. Co. v. Linde Air Products Co., supra at 608, 70 S.Ct. at 856. The accused object need not copy every literal" }, { "docid": "2482097", "title": "", "text": "Woodrow W. Jones, Chief United States District Judge, rendered a Memorandum of Decision holding Claims 4 and 5 of Sarbo Reissue Patent No. RE 26,667 valid, and holding that Moretz Hosiery Mills styles 2444, 2445, 2446, 2447, 2448 and 2480 infringed Claims 4 and 5 of the Sarbo Reissue Patent No. RE 26,667 [Reported at 384 F.Supp. 63]. 23. Judgment in the Moretz suit was entered on November 4, 1974, whereupon Moretz took an appeal to the United States Court of Appeals for the Fourth Circuit. The decision was affirmed with regard to all issues except the conclusion of the trial court that the doctrine of intervening rights is not applicable to narrowed reissue patents. The case was reversed and remanded on the intervening rights issue. 24. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC 1974) (Finding of Fact No. 4) found that these new Claims 4 and 5 incorporate language which the Court of Appeals found to be lacking in the original Sarbo patent, 400 F.2d 967, disclosing how the patented device should be constructed so as to position the elasticized rim below the ankle in the place where it can perform its theretofore undiscovered — and hence new and novel — function. Cf., Judge Merhige in Wayne-Gossard v. Russell (MDNC 1972) (P. 2). 25. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC 1974) (Findings of Fact No. 7), found that the product involved in the patent in suit is a knitted article of ladies’ footwear designed to be worn on the foot without showing above the shoe. It is customarily worn without conventional hose or socks to give the “bare-legged” look. Cf., Judge Merhige in Wayne-Gossard v. Russell (MDNC 1972) (Pp. 2, 3). 26. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC 1974) (Findings of Fact No. 7), found that prior to Sarbo’s method and product in 1958, shoe-top-length footsoeks were available in the market, but were made either from flat knitted fabric, which' was then cut and sewn into the desired shape and provided with a sewn-in elastic rim around the" }, { "docid": "15557967", "title": "", "text": "which was then cut and sewn into the desired shape and provided with a sewn-in elastic rim around the foot entry opening or knitted as a regular sock, having reciprocated heel and toe pockets which would then be cut down at the top and provided with a sewn-in elastic rim around the foot entry opening. The defendant, Russell Hosiery Mills, Inc., was making a cut and sewn shoe-top-length sock at the time it began making the Sarbo type sock in July, 1964. These shoe-top-length foot socks were not only comparatively expensive to manufacture due to the fact that cutting and sewing had to be performed but also were rather uncomfortable by reason of the fact that they were provided with a heavy band or rim of elastic sewn around the foot opening which tended to burrow into the foot of the wearer due to the pressure of the shoe. Cutting and sewing is a time consuming operation requiring skilled operators and entailing considerable waste. 5. The sock of the Sarbo invention is a symmetrical pouch-like sock which is reversible from heel to toe. It is made from a seamless stretch tube of knitted fabric closed across the bottom with a stretchable seam and provided with some rubber threads in the top to form an elastic rim. The courses of the Sarbo sock run longitudinally of the foot rather than transversely of the foot as is the case with a conventional hosiery product. In summary, the finished product consists simply of a short length of circular knit, seamless, tubular fabric, similar to that employed in making the top and upper leg portion of seamless hosiery, having several courses of rubber laid in at what is to become the top of the foot cover, followed by a number of courses of plain knit fabric, both of which are knitted on conventional, circular knitting machines in a manner similar to conventional knitting of seamless hosiery. In practice, the sock of the Sarbo invention is knitted of stretch yam, so as to have the capacity to stretch about a wide variety of foot sizes" }, { "docid": "2482100", "title": "", "text": "body having a length greater than that of the rim and connected therewith. Such foot cover has a seam formed at the end of the body opposite the rim to form a symmetrical pouch-like body which can be adapted to function as tip, sole and heel portions and can be worn in reversed positions. The novel function of the foot cover is that the elasticized rim is positioned below the ankle in a foot hugging stretched condition and is completely concealed from view when worn with low-cut shoes. The foot cover has no definite toe and heel portions and can be conventionally worn in reversed positions upon the foot. The rim and the body, each, respectively, consists of the same knitting structure throughout its axial length throughout its entire periphery. In summary, the finished product, as practiced by Wayne-Gossard, consists simply of a short length of circular knit, seamless, tubular fabric similar to that employed in making the top of seamless hose, having several courses of rubber laid in at what is to become the top of the foot cover, followed by a number of course of plain knit fabric, both of which are knitted on conventional circular knitting machines in a manner similar to conventional knitting of seamless hosiery. Cf., Judge Merhige in Wayne-Gossard v. Russell, (MDMC1972) (P. 3). 29. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC1974) (Findings of Fact No. 7), found that in the practice of the invention by Wayne-Gossard and others, the footsock is knitted of stretch yarn, so as to have the capacity to stretch about a wide variety of foot sizes and conform to the lower portion of the foot which normally lies within the shoe. 30. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC1974) (Findings of Fact No. 7), found that the Sarbo footsock can be made on practically any type of circular knitting machine and can be closed along the bottom by a conventional looping operation or seamed with a straight machine seam by relatively unskilled persons. It does not require boarding or other shaping operations prior" }, { "docid": "2482127", "title": "", "text": "which plaintiffs concede[d] was not new.” Id. at 968. The problem with the patent was that it, [l]acke[d] language disclosing how the patented device should be constructed so as to position the elasticized rim below the ankle in the place where it can perform its theretofore undiscovered — and hence new and novel — function . The court also held that since the patent failed “. . .to specify the critical location of the laid-in-rubber rim the claim of the patent is invalid for failure to satisfy 35 U.S.C. § 112.” Section 112 provides, inter alia that The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. Pursuant to 35 U.S.C. § 251, plaintiff and Sarbo applied to the U.S. Patent Office for a reissue of the original Sarbo patent. The reissue patent, which was granted to Wayne-Gossard and the original patentee on September 23, 1969, cancelled the original Claim 3 and added new Claims 4 and 5. Claim 4 is essentially Claim 3 with the incorporation of language which meets the criticism of the Fourth Circuit. Claim 4 describes the patented article as: A knitted foot cover characterized by being extremely elastic and extensible for being fitted in a highly stretched condition upon the asymmetrical configuration of the lower part of the foot of a wearer with the foot cover being of such height as to be positioned below the ankle in foothugging, stretched condition, completely concealed from view when worn within low cut shoes, said foot cover comprising a seamless, stretchable tubular rim including at least some rubber threads, said rim being adapted to form an opening for a foot entry, a seamless stretchable tubular body having an axial length greater than that of said rim and connected with said rim, said rim and said body, each, respectively consisting of the same knitting structure throughout its axial length and throughout its entire periphery, and a seam formed at the end of said body opposite said rim to form a symmetrical pouchlike body, and" }, { "docid": "2482098", "title": "", "text": "should be constructed so as to position the elasticized rim below the ankle in the place where it can perform its theretofore undiscovered — and hence new and novel — function. Cf., Judge Merhige in Wayne-Gossard v. Russell (MDNC 1972) (P. 2). 25. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC 1974) (Findings of Fact No. 7), found that the product involved in the patent in suit is a knitted article of ladies’ footwear designed to be worn on the foot without showing above the shoe. It is customarily worn without conventional hose or socks to give the “bare-legged” look. Cf., Judge Merhige in Wayne-Gossard v. Russell (MDNC 1972) (Pp. 2, 3). 26. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC 1974) (Findings of Fact No. 7), found that prior to Sarbo’s method and product in 1958, shoe-top-length footsoeks were available in the market, but were made either from flat knitted fabric, which' was then cut and sewn into the desired shape and provided with a sewn-in elastic rim around the foot entry opening, or knitted as a regular sock having reciprocated heel and toe pockets, which would then be cut down at the top and provided with a sewn-in elastic rim around the foot entry opening. These shoe-top-length socks were not only comparatively expensive to manufacture, because of the cutting and sewing required, but also were rather uncomfortable to wear because of a heavy band or rim of elastic sewn around the foot opening which tended to burrow into the foot of the wearer due to pressure of the shoe. 27. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC1974) (Findings of Fact No. 7), found that sewing and cutting were time consuming operations requiring skilled operators and resulting in considerable waste. 28. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC1974) (Findings of Fact No. 7), found that the foot cover, as outlined in Claims 4 and 5 of the Sarbo Reissue patent, is characterized by a seamless tubular elasticized rim adapted to form the foot entry opening with a seamless tubular" }, { "docid": "2482101", "title": "", "text": "top of the foot cover, followed by a number of course of plain knit fabric, both of which are knitted on conventional circular knitting machines in a manner similar to conventional knitting of seamless hosiery. Cf., Judge Merhige in Wayne-Gossard v. Russell, (MDMC1972) (P. 3). 29. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC1974) (Findings of Fact No. 7), found that in the practice of the invention by Wayne-Gossard and others, the footsock is knitted of stretch yarn, so as to have the capacity to stretch about a wide variety of foot sizes and conform to the lower portion of the foot which normally lies within the shoe. 30. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC1974) (Findings of Fact No. 7), found that the Sarbo footsock can be made on practically any type of circular knitting machine and can be closed along the bottom by a conventional looping operation or seamed with a straight machine seam by relatively unskilled persons. It does not require boarding or other shaping operations prior to marketing. 31. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC1974) (Findings of Fact No. 8), found that the Sarbo type foot cover has had tremendous commercial success and quickly became a staple item in the hosiery industry. The sales of this type of foot cover by Wayne-Gossard and Renfro alone amounted to more than 36 million pairs from 1965 to 1973. 32. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC1974) (Findings of Fact No. 8), found that since the Sarbo Reissue patent was issued on September 23, 1969, Wayne-Gossard and Renfro have marked their packages containing foot covers made and sold by them with the number of Sarbo’s Reissue patent — RE 26,-667. 33. Defendant Sondra began marketing its style 40 foot cover in- substantial quantity about January 1966. The foot cover of PI. Depo. Ex. 1, [PX 34] which has a stretchable rim with laid-in spandex thread, is. representative of an initial marketing effort of defendant Sondra with respect to its style 40. 34. The foot cover of Pl." }, { "docid": "2482095", "title": "", "text": "[Reported at 274 F.Supp. 934.] 13. On September 10, 1968, the United States Court of Appeals for the Fourth Circuit reversed the decision of Judge Gordon and held invalid Claim 3 of said Original Sarbo Letters Patent for indefiniteness and overclaiming. [Reported at 400 F.2d 964.] 14. On November 12, 1968, Sarbo and Wayne-Gossard filed an application for reissue of the Sarbo patent which resulted in the issuance of the patent in suit, Reissue Patent No. RE 26,667, on September 23, 1969. 15. In the Sarbo Reissue Patent, Claim 3 of the original Sarbo Patent No. 3,059,458 was cancelled and new Claims 4 and 5 were added directed to the foot cover product. 16. During the prosecution of the application for reissue of the Sarbo patent there were filed in the United States Patent Office copies of the decisions of the District Court [274 F.Supp. 934] and the Court of Appeals [4th Cir., 400 F.2d 964] in the prior litigation, and of all of the prior art patents before the Courts during said litigation. 17. Wayne-Gossard is, and has been since such date of issuance, the owner of the entire right, title and interest in and to the Sarbo Reissue Patent in suit. 18. On October 31, 1969, Wayne-Gossard filed suit in the Middle District of North Carolina against Russell Hosiery Mills for infringement of the Sarbo U.S. Reissue Letters Patent RE 26,667. 19. On August 28, 1972, the Honorable Robert A. Merhige, United States District Judge of the Eastern District of Virginia, sitting by designation in the Middle District of North Carolina, held Claims 4 and 5 of the Sarbo Reissue patent to be infringed by Russell’s styles 1331, 1333, and 1339. 20. On August 30, 1973, the Fourth Circuit Court of Appeals, affirmed the District Court’s holding of infringement by Russell of the Sarbo Reissue Patent. [Reported at 483 F.2d 770.] 21. On October 3, 1973, Wayne-Gossard filed suit in the Western District of North Carolina against Moretz Hosiery Mills for infringement of the Sarbo U.S. Reissue Letters Patent RE 26,667. 22. On September 26, 1974, the Honorable" }, { "docid": "2482116", "title": "", "text": "and the foot cover fits over and hugs on the lower portion of the foot with the rim positioned on the asymmetrical portion of the foot below the ankle. f. The combined axial length of the rim and body portions of the finished foot covers is within the range of about 5 to 7 centimeters. g. While the Sondra footsoeks use combinations of plain stitches and float stitches, the accused footsoeks essentially consist of the same knitted structure throughout its axial length. 75. Spandex thread is a synthetic rubber or rubber-like material, and is, in fact, rubber in the sense that the term “rubber” is used in claims 4 and 5 of the Sarbo reissue patent. 76. There are three types pf Sondra footsoeks in issue herein — the regular Style 40, Style 50, and Liberty style. 40 . The regular Styles 40 and 50 have rims which are knit entirely of covered spandex yarn. The covered spandex yarn forming the knitted stitches of the regular Styles 40 and 50 rims is composed of 1) a rubber-like raw spandex thread core (about 20%), and 2) a covering of nylon threads coiled around the spandex core (about 80%). The coiled nylon threads would remain in the form of stitches forming the rim of the foot cover even if the spandex threads were removed from the rims. The same type of spandex yarn is used in the Liberty Style 40 footsock. But Liberty incorporated the spandex by knitting it in with stretch nylon in every eighth course of the 64 knitted courses forming the rim. The remaining 56 courses ■ of the Liberty rim are knit only with stretch nylon. 77. References are made in the litigation against Russell Hosiery Mills to the Sarbo patent including a rim with rubber threads laid in. Such references were made by Sarbo’s attorney in the District Court, the Court of Appeals and in a petition for a Writ of Certiorari to the Supreme Court of the United States, 393 U.S. 1064, 89 S.Ct. 717, 21 L.Ed.2d 707. The opinions of the District Court and of" }, { "docid": "2482128", "title": "", "text": "is essentially Claim 3 with the incorporation of language which meets the criticism of the Fourth Circuit. Claim 4 describes the patented article as: A knitted foot cover characterized by being extremely elastic and extensible for being fitted in a highly stretched condition upon the asymmetrical configuration of the lower part of the foot of a wearer with the foot cover being of such height as to be positioned below the ankle in foothugging, stretched condition, completely concealed from view when worn within low cut shoes, said foot cover comprising a seamless, stretchable tubular rim including at least some rubber threads, said rim being adapted to form an opening for a foot entry, a seamless stretchable tubular body having an axial length greater than that of said rim and connected with said rim, said rim and said body, each, respectively consisting of the same knitting structure throughout its axial length and throughout its entire periphery, and a seam formed at the end of said body opposite said rim to form a symmetrical pouchlike body, and said body being adapted to function as tip, sole and heel portions of said foot cover, whereby upon placing the footcover on the lower part of a foot, the attendant stretching of the foot cover reduces the combined axial length of said rim and said body and the foot cover fits over and hugs only the lower portion of the foot with said rim positioned on the asymmetrical portion of the foot below the ankle. Claim 5 is essentially Claim 4 with the addition of the following language: “ . the combined axial length of said rim and said body being about 5 to 7 centimeters . . .\" The validity of Claims 4 and 5 has been sustained in direct challenges thereto in Wayne-Gossard Corporation v. Moretz Hosiery Mills, 384 F.Supp. 63 (W.D.N.C.1974), aff’d, C.A. 75-1240, 539 F.2d 986 (4th Cir. 1976). Validity of the claims has been indirectly sustained in Wayne-Gossard Corporation v. Russell Hosiery Mills, C.A. 223-R-69 (M.D.N.C.1972), aff’d, 483 F.2d 770 (4th Cir. 1973). I. VALIDITY Pursuant to 35 U.S.C. §" }, { "docid": "2482094", "title": "", "text": "July 3, 1965, said May Hosiery Mills assigned all rights in said Letters Patent No. 3,059,458 to Wayne Knitting Mills pursuant to an agreement between said parties dated June 17, 1965. 10. On or about January 31, 1967, as a result of corporate merger, the name of Wayne Knitting Mills was changed to Wayne-Gossard Corporation and said Wayne-Gossard Corporation thereupon acquired all rights in said Letters Patent No. 3,059,458. 11. Sarbo U.S. Letters Patent No. 3,059,458 was the subject of prior litigation in the United States District Court for the Middle District of North Carolina entitled Wayne Knitting Mills and May Corporation v. Russell Hosiery Mills, Inc. and Paul Russell, 274 F.Supp. 934. 12. On September 29, 1967, the Honorable Eugene A. Gordon, United States Dis trict Judge, filed an Opinion, Findings of Fact and Conclusions of Law in the said action holding Claim 3, the only claim in issue, of said Original Letters Patent to be valid and infringed by defendant Russell Hosiery, and judgment was entered in the Court on October 18, 1967. [Reported at 274 F.Supp. 934.] 13. On September 10, 1968, the United States Court of Appeals for the Fourth Circuit reversed the decision of Judge Gordon and held invalid Claim 3 of said Original Sarbo Letters Patent for indefiniteness and overclaiming. [Reported at 400 F.2d 964.] 14. On November 12, 1968, Sarbo and Wayne-Gossard filed an application for reissue of the Sarbo patent which resulted in the issuance of the patent in suit, Reissue Patent No. RE 26,667, on September 23, 1969. 15. In the Sarbo Reissue Patent, Claim 3 of the original Sarbo Patent No. 3,059,458 was cancelled and new Claims 4 and 5 were added directed to the foot cover product. 16. During the prosecution of the application for reissue of the Sarbo patent there were filed in the United States Patent Office copies of the decisions of the District Court [274 F.Supp. 934] and the Court of Appeals [4th Cir., 400 F.2d 964] in the prior litigation, and of all of the prior art patents before the Courts during said litigation. 17." }, { "docid": "2482117", "title": "", "text": "a rubber-like raw spandex thread core (about 20%), and 2) a covering of nylon threads coiled around the spandex core (about 80%). The coiled nylon threads would remain in the form of stitches forming the rim of the foot cover even if the spandex threads were removed from the rims. The same type of spandex yarn is used in the Liberty Style 40 footsock. But Liberty incorporated the spandex by knitting it in with stretch nylon in every eighth course of the 64 knitted courses forming the rim. The remaining 56 courses ■ of the Liberty rim are knit only with stretch nylon. 77. References are made in the litigation against Russell Hosiery Mills to the Sarbo patent including a rim with rubber threads laid in. Such references were made by Sarbo’s attorney in the District Court, the Court of Appeals and in a petition for a Writ of Certiorari to the Supreme Court of the United States, 393 U.S. 1064, 89 S.Ct. 717, 21 L.Ed.2d 707. The opinions of the District Court and of the Court of Appeals judges in the Russell Hosiery Mills cases accordingly make similar references to the laid-in rubber rim. When plaintiff’s attorney’s remarks and the opinions of the courts are considered in context, we find that neither counsel for plaintiff nor the courts considered laid-in rubber as a critical part of the invention as distinguished from incorporation by other methods, including the knit-in method. 78. The laying-in method was not the only method of incorporation contemplated by the original patent. The Sondra knit-in spandex rim and the Sarbo laid-in rubber rim are equivalents, and such equivalency for incorporating rubber was known and clearly established in the knitting art prior to the time of the Sarbo invention. 79. Prior teachings of both laid-in and knit-in rubber were before the Courts and both patent examiners, and the file wrapper of the original Sarbo patent indicates the equivalency between laid-in and knit-in rubber was contemplated. On page 13 of the original Sarbo patent file wrapper, Sar-bo’s attorney said . [I]t is pointed out that the rubber threads" }, { "docid": "2482143", "title": "", "text": "really concerned with making a distinction between footsocks with rubber threads incorporated through knitting into the rim and footsocks with a rubber band sewn into the rim. Read in proper context, plaintiff’s interpretation of the references by the courts to the laid-in rubber rim is correct. For example, the Fourth Circuit opinion in Wayne-Gossard Corporation v. Moretz Hosiery Mills, Inc., supra, characterized the Sarbo reissue patent as follows: The relevant subject of the original and reissue patents is a knitted stretched yarn foot cover, (to be work in a ladies (sic) shoe), with the method of its manufacture . . . It is enough now to observe that the patentability of the cover and its fashioning, as described in Claims 4 and 5 of the reissue, is found in these characteristics of the cover: its service as a sock in a low-cut shoe, “with the foot cover being of such height as to be positioned below the ankle in foot hugging, stretched condition, completely concealed from view when worn with low cut shoes”; the absence of any binding or skin-burrowing rim around the foot entry opening; a tubular body adaptable “to function as tip, sole and heel portions” and reversible; and the whole of economical manufacture. Id. 539 F.2d at 988. Defendant also suggests that laid-in rubber is critical to the Sarbo reissue patent because of the following language in the specification of the patent, “ . . . this rubber thread is inserted (e. g. laid-in) in the manner of a woven fabric (Fig. 4A) such that the rubber thread lies substantially along the periphery of the rim and transversely of the knitting direction . . . ” There is nothing in the reissue patent file wrapper or the claim language to indicate that the patentees felt there was something new or novel about footsocks which incorporated rubber threads in the rims through a laying-in method. In fact, any available method of incorporation could be used. The only reference in the patent to the method of incorporation is in the form of an example — the term is preceded" }, { "docid": "2482129", "title": "", "text": "said body being adapted to function as tip, sole and heel portions of said foot cover, whereby upon placing the footcover on the lower part of a foot, the attendant stretching of the foot cover reduces the combined axial length of said rim and said body and the foot cover fits over and hugs only the lower portion of the foot with said rim positioned on the asymmetrical portion of the foot below the ankle. Claim 5 is essentially Claim 4 with the addition of the following language: “ . the combined axial length of said rim and said body being about 5 to 7 centimeters . . .\" The validity of Claims 4 and 5 has been sustained in direct challenges thereto in Wayne-Gossard Corporation v. Moretz Hosiery Mills, 384 F.Supp. 63 (W.D.N.C.1974), aff’d, C.A. 75-1240, 539 F.2d 986 (4th Cir. 1976). Validity of the claims has been indirectly sustained in Wayne-Gossard Corporation v. Russell Hosiery Mills, C.A. 223-R-69 (M.D.N.C.1972), aff’d, 483 F.2d 770 (4th Cir. 1973). I. VALIDITY Pursuant to 35 U.S.C. § 282, a patent is presumed valid, and the burden of establishing the invalidity of the patent is on the party asserting the invalidity. Defendant argues that plaintiff’s invention is not validly patented because of obviousness and anticipation by the prior art. Defendant also argues that the reissue patent is invalid because of the inclusion of new matter. Title 35 § 103 provides, inter alia, A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains . . . July 19, 1952, c. 950, § 1, 66 Stat. 798. In Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), the Supreme Court delineated the criteria for a" }, { "docid": "2482099", "title": "", "text": "foot entry opening, or knitted as a regular sock having reciprocated heel and toe pockets, which would then be cut down at the top and provided with a sewn-in elastic rim around the foot entry opening. These shoe-top-length socks were not only comparatively expensive to manufacture, because of the cutting and sewing required, but also were rather uncomfortable to wear because of a heavy band or rim of elastic sewn around the foot opening which tended to burrow into the foot of the wearer due to pressure of the shoe. 27. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC1974) (Findings of Fact No. 7), found that sewing and cutting were time consuming operations requiring skilled operators and resulting in considerable waste. 28. Judge Jones, in Wayne-Gossard v. Moretz, 384 F.Supp. 63 (WDNC1974) (Findings of Fact No. 7), found that the foot cover, as outlined in Claims 4 and 5 of the Sarbo Reissue patent, is characterized by a seamless tubular elasticized rim adapted to form the foot entry opening with a seamless tubular body having a length greater than that of the rim and connected therewith. Such foot cover has a seam formed at the end of the body opposite the rim to form a symmetrical pouch-like body which can be adapted to function as tip, sole and heel portions and can be worn in reversed positions. The novel function of the foot cover is that the elasticized rim is positioned below the ankle in a foot hugging stretched condition and is completely concealed from view when worn with low-cut shoes. The foot cover has no definite toe and heel portions and can be conventionally worn in reversed positions upon the foot. The rim and the body, each, respectively, consists of the same knitting structure throughout its axial length throughout its entire periphery. In summary, the finished product, as practiced by Wayne-Gossard, consists simply of a short length of circular knit, seamless, tubular fabric similar to that employed in making the top of seamless hose, having several courses of rubber laid in at what is to become the" }, { "docid": "2482149", "title": "", "text": "rubber. The Moretz and Russell companies, against whom plaintiff successfully won infringement suits, both used Spandex in the rims of their footsocks. In fact, all of the Sarbo footsocks are knit with Spandex. Rubber thread and Spandex are equivalent, if not identical for the purposes of this patent. Defendants’ use of Spandex thread in the rims of its Style 40 and 50 footsocks does not save them from the charge of infringement. In Graver Tank and Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950), the Supreme Court enunciated one of its standards for a determination of infringement. The Court said: In determining whether an accused device or composition infringes a valid patent, resort must be had in the first instance to the words of the claim. If accused matter falls clearly within the claim, infringement is made out and that is the end of it. Id. at 607, 70 S.Ct. at 855. The Sondra Style 40 and 50 footsocks fall clearly within the language in Claims 4 and 5 of the Sarbo reissue patent. The Sondra footsocks are extremely elastic and extensible for being fitted in a highly stretched condition upon the asymmetrical configuration of the lower part of the foot of a wearer with the footsocks being of such height as to be positioned below the ankle in a foot-hugging stretched condition. They are completely concealed from view when worn within low-cut shoes and have seamless stretchable tubular rims including at least some rubber threads — -said rims being adapted to form an opening for a foot entry. They have seamless stretchable tubular bodies having an axial length greater than that of said rims and connected with said rims. While the Sondra footsocks use combinations of plain stitches and float stitches, the accused footsocks essentially consist of the same knitted structure throughout their axial length. The body of the Sondra footsocks are adapted to function as tip, sole and heel portions of the footcover, and upon placing the Sondra footsocks on the lower part of a foot, the attendant stretching" }, { "docid": "2482114", "title": "", "text": "The Style 40 footsoeks manufactured for Sondra by Liberty Hosiery Mills have all been made with a rim portion comprising a turned welt formed of knitted loops of a stretch nylon yarn, which rim portion has in every eighth course a covered spandex yarn knitted in with a stretch nylon yarn. 72. All of the footsoeks of Russell Hosiery Mills and Moretz Hosiery Mills which were accused or found by the courts to infringe the Sarbo original or reissue patent in the previous litigation based thereon involved the use of laid-in elastic threads in the rim portions thereof. 73. The prior art relied upon by defendants in this action has either been considered, or is no more pertinent than other prior art which has been considered by the Patent Office and the various courts in connection with the prosecution and litigation involving the Sarbo patent. 74. The Sondra Style 40 and 50 foot covers correspond in the following respects to the language of claims 4 and 5 of the Sarbo reissue patent. These foot cover styles are characterized by being extremely elastic and extensible for being fitted in a highly stretched condition upon the asymmetrical configuration of the lower part of the foot of a wearer with the foot cover being of such height as to be positioned below the ankle in foot hugging, stretched condition, completely concealed from view when worn within lowcut shoes. The foot covers comprise: a. A seamless stretchable tubular rim including at least some rubber threads— said rim being adapted to form an opening for a foot entry, b. A seamless stretchable tubular body having an axial length greater than that of said rim and connected with said rim, c. A seam found at the end of said body opposite said rim, d. The body of the foot cover is adapted to function as tip, sole and heel portions of the foot cover, and e. Upon placing the foot cover on the lower part of a foot, the attendant stretching of the foot cover reduces the combined axial length of the rim and the body" } ]

[ { "docid": "22767933", "title": "", "text": "Apprendi and its progeny, “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Underlying the issue in this case is the provision of § 1326 that increases the maximum sentence for an alien convicted of attempted entry after removal if the alien’s “removal was subsequent to a conviction for commission of an aggravated felony.” 8 U.S.C. § 1326(b)(2). Covian claims that his guilty plea admitted neither the prior conviction nor the subsequent removal, and that the court’s increased sentence under § 1326(b)(2) therefore violated Apprendi twice over. We agree with Covian as to the subsequent removal, though not as to the prior conviction, but we again find that relief is not warranted under the plain error standard. A. Under the Supreme Court’s decision in Almendarez-Torres v. United States, a judge may enhance a sentence under § 1326(b) for a prior conviction even if the fact of the conviction was not charged in the indictment, submitted to a jury, or proved beyond a reasonable doubt. See 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000). Covian argues that the Supreme Court has effectively overruled Almendarez-Tor-res, and, relatedly, that recent Supreme Court decisions create constitutional doubt that should compel us to limit the holding of Almendarez-Torres to cases in which the defendant admits the prior conviction during a guilty plea. Covian also argues that Apprendi renders unconstitutional the provisions of § 1326 that allow a judge to increase the maximum sentence from two years to twenty. All of these arguments, however, are squarely foreclosed by our precedents. See, e.g., United States v. Beng-Salazar, 452 F.3d 1088 (9th Cir.2006); United States v. Diaz-Argueta, 447 F.3d 1167, 1170 (9th Cir.2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005). We" } ]

[ { "docid": "18415517", "title": "", "text": "included minorities to be indicative, but not dispositive, of nondiscriminatory motive); United States v. Chinchilla, 874 F.2d 695, 698 n. 4 (9th Cir.1989) (noting that “the willingness of a prosecutor to accept minority jurors weighs against the findings of a prima facie case”). Also, the challenges at issue only constituted two of the government’s six peremptory challenges. See United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.1994) (considering that the “government’s other peremptory challenges did not suggest a general pattern of discrimination against racial minorities” in the Batson analysis). Finally, the defense also struck one of the two jurors in dispute. F. Apprendi Challenge to Sentence Cruz-Escoto’s final claim is that the district court improperly increased his sentence above the statutory maximum. Pursuant to 8 U.S.C. § 1326(b)(2), the district court sentenced Cruz-Escoto above the two-year statutory maximum because it found that he had previously been convicted of two felonies — a 1994 drug trafficking charge and a 1996 sale of cocaine charge. According to Cruz-Escoto, this increase violates the Supreme Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because he did not admit that he had previously been convicted nor did the jury make such a finding. Any fact that increases a sentence above the statutory maximum must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. However, Cruz-Escoto’s argument fails because Ap-prendi specifically exempts recidivism enhancements based on prior convictions from its holding. Id. at 490,120 S.Ct. 2348 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added)). Cruz-Escoto’s contention that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), requires a defendant’s admission of prior conviction to trigger a § 1326 recidivism enhancement is contrary to both the history of the recidivism enhancement and our precedent. See id. at 227, 118 S.Ct. 1219" }, { "docid": "22458389", "title": "", "text": "offense. 18 U.S.C. § 924(e)(1); United States v. McElyea, 158 F.3d 1016, 1018 (9th Cir.1998). A defendant convicted of being a felon in possession of a firearm who has not been previously convicted of three violent felonies or serious drug offenses can be sentenced only to a maximum of 10 years. 18 U.S.C. § 924(a)(2). Tighe challenges ACCA on its face on the ground that it “allows for a substantial increase in [the] statutory maximum [sentence] based on prior convictions, the existence of which need only be proved to the judge by a preponderance of the evidence.” He argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the fact of his prior convictions must be proved to a jury beyond a reasonable doubt. Under the current state of the law, the Constitution does not require prior convictions that increase a statutory penalty to be charged in the indictment and proved before a jury beyond a reasonable doubt. United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir.2001) (“The district court was entitled to consider any prior aggravated felony convictions in sentencing Pacheco-Zepeda for illegal reentry even though such conduct had not-been charged in the indictment, presented to a jury, and proved beyond a reasonable doubt.”); see also Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (“Other than the fact of a pñor conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added)); Almendarez-Torres v. United States, 523 U.S. 224, 243-44, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Accordingly, we affirm the district court’s holding that ACCA is constitutional on its face. B. As-Applied Challenge Tighe argues that his sentence is unconstitutional because it was increased beyond the statutory maximum 10 years by the district court’s finding that he was adjudicated a juvenile delinquent for committing a violent felony when he was 14-years old. He argues that Apprendi requires that the fact of his juvenile adjudication be charged in an indictment and found by" }, { "docid": "12529086", "title": "", "text": "and has three previous convictions for violent felonies or serious drug offenses. In Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S.Ct. 1219, 1231, 140 L.Ed.2d 350 (1998), the Supreme Court held that prior convictions that increase the statutory maximum sentence for a particular violation are not elements of an offense, and therefore a district court may determine if there had been such convictions when sentencing a defendant on a new conviction by using a preponderance-of-the-evidence standard. Later, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that, “[ojther 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.” Id. at 490, 120 S.Ct. at 2362-63. The Court in Alleyne extended the Apprendi rule to proof of facts that increase a mandatory minimum sentence, requiring such facts to be submitted to a jury and proven beyond a reasonable doubt; however, the Court did not extend the rule to proof of prior convictions, specifically articulating that the issue was not before the Court. Alleyne, 133 S.Ct. at 2160 n. 1. We since have recognized that Alleyne did “nothing to restrict the established exception under Almendarez-Torres that allows judges to consider prior convictions” for purposes of enhanced penalties. United States v. Blair, 734 F.3d 218, 227-28 (3d Cir.2013). Ultimately, Alleyne’s rule does not apply here to the recidivist enhancement of Section 924(e). Accordingly, we reject Burnett’s argument to the contrary. F. Burnett’s Within-Guideline Sentence Does Not Violate the Eighth Amendment. Finally, Burnett argues that his within-guideline-range sentence of 288 months imprisonment amounts to cruel and unusual punishment in violation of the Eighth Amendment. Because he did not make his Eighth Amendment challenge in the District Court, we review the argument on a plain error basis. Miknevich, 638 F.3d at 185. We determine that Burnett’s sentence is proportional to his crimes of conviction and does not constitute cruel and unusual punishment. The Supreme Court has explained that the “Eighth" }, { "docid": "22468311", "title": "", "text": "United States, 519 U.S. 172, 182, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Because the district court did not abuse its discretion by admitting evidence that Martinez had been previously removed on two separate occasions, we affirm Martinez’s conviction and move on to consider his two challenges to his sentence. Ill Martinez first argues, relying on Apprendi and its progeny, that the district court erred by judicially finding that, because Martinez’s prior “removal was subsequent to a conviction for commission of an aggravated felony,” § 1326(b)(2), Martinez’s statutory-maximum sentence was twenty years, rather than the generally-applicable two-year maximum sentence found in § 1326(a). He argues that the district court’s finding that he was removed after being convicted of an aggravated felony violates Apprendi because it increased his statutory-maximum sentence on the basis of facts not alleged in the indictment, proven to the jury, or admitted by him. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). We review de novo whether Martinez-Rodriguez’s sentence violates Apprendi. United States v. Smith, 282 F.3d 758, 771 (9th Cir.2002). We hold that, in this case, because all of the evidence of prior removal presented to the jury related to removals that were subsequent to Martinez’s prior aggravated felony conviction, the jury necessarily found beyond a reasonable doubt that Martinez’s prior “removal was subsequent to a conviction for commission of an aggravated felony,” § 1326(b)(2). Section 1326(a) provides that any alien who violates that section “shall be ... imprisoned not more than 2 years.” However, § 1326(b)(2) modifies the two-year statutory-maximum sentence provided for in § 1326(a) by stating that “[Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection ... whose removal was subsequent to a conviction for the commission of an aggravated felony, such alien shall be ... imprisoned not more than 20 years.” Thus, in order for the twenty-year statutory-maximum sentence to" }, { "docid": "22058563", "title": "", "text": "penalty under § 1326 is two years of imprisonment and one year of supervised release, unless the previous removal was subsequent to certain types of convictions. See 8 U.S.C. § 1326(a),(b); 18 U.S.C. §§ 3583(b), 3559(a). In this case, the district court found that Salazar-Lopez had been removed after such a felony conviction, and so it determined that the applicable statutory maximum was ten years of imprisonment and three years of supervised release. 8 U.S.C. § 1326(b)(1), 18 U.S.C. §§ 3583(b), 3559(a). On appeal, Salazar-Lopez renews his contention that his exposure to § 1326(b)’s higher statutory maximum violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because neither the date of his prior removal nor the temporal relationship between the removal and his prior conviction was alleged in the indictment and proved to a jury. We agree that an Apprendi error occurred here. In United States v. Covian-Sandoval, 462 F.3d 1090, 1096-98 (9th Cir.2006), we recognized that the fact of a prior conviction need not have been submitted to the jury under Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but nevertheless held that an Apprendi error had occurred where the date of a prior removal (necessary to determine whether the removal had followed the conviction in time) was not admitted by the defendant or found by a jury. A similar error is present here, since the jury was presented with evidence of two removals, one which preceded Salazar-Lopez’s felony conviction and one which followed, and was never asked to find that the later removal had indeed occurred. Cf. United States v. Martinez-Rodriguez, 472 F.3d 1087, 1093-94 (9th Cir.2007) (finding no error even though the jury did not find an exact date of removal, because both removals put before the jury were subsequent to the defendant’s felony conviction). Salazar-Lopez’s case differs slightly from Covian-Sandoval, however, because the error to which he points on appeal is not only that the jury never made the required finding but also that the Government never alleged in the indictment that he had" }, { "docid": "10661675", "title": "", "text": "Lopez asserts that the district court erred by imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a). Lopez contends that the enhancement pursuant to 8 U.S.C. § 1326(b) was impermissibly predicated on a prior felony conviction that was not proved to a jury or admitted by Lopez. Lopez urges us to conclude that the United States Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), has been narrowed by subsequent rulings, calling into doubt the enhancement in this case. A claim raised for the first time on appeal that a sentence violates a defendant-appellant’s constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is reviewed for plain error. United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir.2001). “Under the plain error standard, [Lopez] must establish an error, that was plain, and that affected his substantial rights.” United States v. Buckland, 289 F.3d 558, 563 (9th Cir.2002) (en banc). Lopez’s argument is foreclosed by our precedent. See United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005) (noting that this Court continues to be bound by the Supreme Court’s holding in Almendarez-Torres), cert. denied, — U.S.-, 126 S.Ct. 1911, 164 L.Ed.2d 667 (2006); see also, United States v. Delaney, 427 F.3d 1224, 1226 (9th Cir.2005) (stating that “[t]he Supreme Court has made clear that the fact of a prior conviction need not be proved to a jury beyond a reasonable doubt or admitted by the defendant to satisfy the Sixth Amendment”). Similarly, Lopez’s argument that because 8 U.S.C. § 1326(b)(2) requires an alien’s prior removal to have been subsequent to the pri- or conviction, Apprendi requires that the temporal sequence of conviction and removal — as distinct from the fact of conviction itself — be proved to a jury beyond a reasonable doubt, is foreclosed. See Castillo-Riveni, 244 F.3d at 1025 (explaining that Apprendi carved out a recidivism exception under which neither the prior conviction nor the fact that the removal was subsequent to" }, { "docid": "22468304", "title": "", "text": "paragraph, change “Martinez-Rodriguez” to “Martinez.” On slip opinion page 18688, lines 4 and 5, change “Martinez-Rodriguez’s” to “Martinez’s.” On slip opinion page 18688, change roman numeral “III” to roman numeral “IV.” OPINION A jury convicted David Martinez-Rodriguez (“Martinez”) of re-entering the United States after removal in violation of 8 U.S.C. § 1326(a). On August 23, 2005, the district court sentenced Martinez to seventy-seven months imprisonment with three years supervised release. Martinez challenges both his conviction and sentence. Martinez challenges his conviction by arguing that the district court erred by permitting the government to introduce evidence that he had been previously removed from the United States on two separate occasions. Martinez asserts that the district court erred by not excluding the evidence of his two prior removals under Federal Rule of Evidence 404(b), which excludes evidence of specific instances of conduct in order to show propensity. Martinez also argues that the prejudicial effect of this evidence outweighed its probative value, rendering the evidence inadmissible under Federal Rule of Evidence 403. Martinez challenges his sentence on two grounds. First, relying on our decision in United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir.2006), and the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Martinez argues that the district court improperly found that his prior removal “was subsequent to a conviction for commission of an aggravated felony,” § 1326(b)(2). Martinez argues that he never admitted this fact, nor was this fact ever proven to a jury beyond a reasonable doubt. The district court relied on Martinez’s prior removal subsequent to his aggravated felony conviction to increase his statutory-maximum sentence from two to twenty years under § 1326(b)(2). Second, Martinez argues that the district court erred in finding that his prior conviction for possession of marijuana for sale under California Health and Safety Code section 11359 was a drug trafficking offense under the Federal Sentencing Guidelines. The district court relied on Martinez’s prior conviction for a drug trafficking offense to apply a sixteen-level sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A) (2004). 28 U.S.C. §" }, { "docid": "21504278", "title": "", "text": "Tufunga, 21 Cal.4th 935, 90 Cal.Rptr.2d 143, 987 P.2d 168, 181 (1999). The California Supreme Court drew a distinction between these cases and cases where the defendant took specific property to which he believed he was entitled. Id. Such curtailing of the claim of right defense is entirely consistent with the vast majority of modern cases to consider the question, which have emphasized the public policy against self-help in such situations. See id. 90 Cal.Rptr.2d 143, 987 P.2d at 177 (citing cases); 3 LaFave § 20.3(b). This approach therefore keeps CaLPenal Code § 211 within the modern, generic definition of robbery. Aiding and Abetting: Becerril also argues that California’s law of aiding and abetting is significantly broader than the generic definition. The Supreme Court, however, rejected this argument in Due-nas-Alvarez, 127 S.Ct. at 822. Accordingly, we hold that a conviction under Cal.Penal Code § 211 could only result from conduct that constitutes a “crime of violence” for purposes of U.S.S.G. § 2L1.2. The district court properly applied the 16-level enhancement. B.Apprendi Error Becerril attacks his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which generally requires that facts increasing a sentence beyond the statutory maximum be found by a jury or admitted by the defendant. According to Becerril, the judicial finding that he was previously deported after a crime of violence violates Apprendi because it increased his statutory maximum from two to 20 years. See 8 U.S.C. § 1326; United States v. Govian-Sandoval, 462 F.3d 1090 (9th Cir.2006). We disagree. As to the conviction itself, Becerril’s argument is squarely foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which allows judicial fact-finding of prior convictions, and also by our decisions confirming that Almendarez-Torres remains binding authority. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005). And as to the date of the prior removal, the jury necessarily found that Becerril had been previously removed, and because the only removal argued to the" }, { "docid": "23476269", "title": "", "text": "of 8 U.S.C. § 1326 creates two separate offenses under two sections. In Padilla’s view, § 1326(a) makes it illegal for a previously deported alien to reenter the United States, with a statutory maximum of two years, whereas § 1326(b)(2) makes it illegal for a previously deported alien with a prior aggravated felony conviction to reenter the United States, with a statutory maximum of twenty years. Pa dilla argues that the indictment simply charged him with illegally reentering the United States after having been deported, but did not charge that the deportation was subsequent to a conviction for an aggravated felony. Padilla concludes that the indictment necessarily charged the § 1326(a) offense, and not the § 1326(b)(2) offense. Because Padilla’s ninety month sentence exceeds the two year statutory maximum of § 1326(a), he contends that his sentence violates the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 120 S.Ct. at 2362-63. Padilla argues that Apprendi requires vacatur of his sentence and a remand for re-sentencing within the two-year statutory maximum contained in § 1326(a). The Government’s response is simply that Padilla has left out the exception to the Apprendi rule, which, when the first clause is properly appended, reads “[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.” Id. (emphasis added). The Government contends that the Apprendi exception applies, and not the rule, because the alleged omission is in fact the fact of a prior conviction. Most significantly, the Government notes that the Supreme Court has previously rejected the argument that § 1326 contains two separate offenses with separate statutory máximums rather than a single offense with a sentencing factor. See Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 1226, 140 L.Ed.2d 350 (1998). Anticipating this" }, { "docid": "22468310", "title": "", "text": "Martinez asserts that the admission of evidence of his two prior deportations violated Rule 404(b) of the Federal Rules of Evidence. However, Rule 404(b) does not exclude evidence forming an essential element of the charged offense. See United States v. DeGeorge, 380 F.3d 1203, 1220 (9th Cir.2004). Because proving that the defendant has been previously removed is an essential element of the government’s case under § 1326, the district court did not abuse its discretion under Rule 404(b) in admitting evidence of prior deportations. Martinez also claims, under Rule 403, that the probative value of evidence that he had been twice deported was outweighed by its prejudicial effect. However, because the evidence of each deportation was dissimilar, the government was entitled to introduce evidence of both deportations to hedge the risk that the jury may reject the offered proof of one deportation, but not the other. See United States v. Weiland, 420 F.3d 1062, 1078 (9th Cir.2005). Also, the government did not have any alternative means of proving pri- or deportation. See Old Chief v. United States, 519 U.S. 172, 182, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Because the district court did not abuse its discretion by admitting evidence that Martinez had been previously removed on two separate occasions, we affirm Martinez’s conviction and move on to consider his two challenges to his sentence. Ill Martinez first argues, relying on Apprendi and its progeny, that the district court erred by judicially finding that, because Martinez’s prior “removal was subsequent to a conviction for commission of an aggravated felony,” § 1326(b)(2), Martinez’s statutory-maximum sentence was twenty years, rather than the generally-applicable two-year maximum sentence found in § 1326(a). He argues that the district court’s finding that he was removed after being convicted of an aggravated felony violates Apprendi because it increased his statutory-maximum sentence on the basis of facts not alleged in the indictment, proven to the jury, or admitted by him. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the" }, { "docid": "23492973", "title": "", "text": "to depart downward, but chose not to do so on the facts of the case. See id. at 732, 116 S.Ct. 2035. Accordingly, the court acknowledged that it lacked jurisdiction to review the district court’s refusal to grant Lipman’s downward departure motion. See id. Considering both the Lipman and Sanchez-Valencia decisions and the series of unpublished opinions from this court, we hold that cultural assimilation is a permissible basis for downward departure. Therefore, the sentence should be vacated and the case remanded to the district court for the district court to consider, in its sound discretion, whether Rodriguez-Mon-telongo’s circumstances are so atypical or extraordinary so as to warrant a downward departure on the basis of cultural assimilation. IV. DUE PROCESS Rodriguez-Montelongo challenges his sentence on the ground that it violates due process. Rodriguez-Montelongo contends that the offense for which he was indicted has a maximum sentence of two-years imprisonment. See 8 U.S.C. § 1326(a). 8 U.S.C. § 1326(b)(2) increases the maximum punishment to twenty years if the defendant was deported after conviction for an aggravated felony. RodriguezMontelongo asserts that § 1326(b)(2) creates a separate offense and that an element of this separate offense is a prior aggravated-felony conviction. Because the indictment did not allege a prior aggravated-felony conviction, Rodriguez-Montelongo argues that the only offense charged was that under § 1326(a). Therefore, he contends that because § 1326(a) has a maximum 2-year sentence, the district court exceeded the statutory maximum by sentencing Rodriguez-Montelongo to 41 months in prison. Rodriguez-Montelongo recognizes that in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court rejected an argument identical to the one he is making here. See id. at 235, 118 S.Ct. 1219. He contends, however, that in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court “cast serious doubt” on Almenda-rez-Torres ’s validity. See id. at 489, 120 S.Ct. 2348 (stating that “it is arguable that Almendarez-Torres was incorrectly decided”). Rodriguez-Montelongo asserts that he raises this issue here only to preserve it for possible Supreme Court review. In" }, { "docid": "23036796", "title": "", "text": "have had three prior convictions committed on separate occasions under § 924(e), the maximum prison term permitted under § 922(g) would have been ten years. See 18 U.S.C. § 924(a)(2). On appeal, defendant claims that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the statutory requirement of “three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another,” 18 U.S.C. § 924(e)(1), is not a sentencing factor which may be determined by a judge, but rather is an element of a separate, greater offense which must be charged in an indictment and found by a jury beyond a reasonable doubt. Defen dant argues that the exception left open in Apprendi for the “fact of a prior conviction” as under the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), does not cover the separate requirement under § 924(e) that convictions be “committed on occasions different from one another.” Moreover, defendant claims that even if so, Almenda-rez-Torres itself has been “fatally undermined” by Apprendi and is no longer good law. Defendant maintains that because the indictment did not allege that defendant had been convicted of three qualifying crimes “committed on occasions different from one another,” his fifteen-year prison sentence exceeds the statutory maximum for the crime charged and must be vacated. We disagree. DISCUSSION In 1998, the Supreme Court held in Al-mendarez-Torres that 8 U.S.C. § 1326(b)(2), which enhances the penalty for the illegal return of an alien to the United States if his or her initial removal was subsequent to an aggravated felony conviction, does not describe a separate crime, such that the fact of the prior felony conviction must be charged in an indictment and proven to a jury beyond a reasonable doubt; rather, it describes a penalty provision authorizing a court to increase the sentence for a recidivist. Almendarez-Torres, 523 U.S. at 228-35, 118 S.Ct. 1219. Moreover, the Court said, Congress violated no constitutional constraints in defining recidivism as a sentencing" }, { "docid": "22458360", "title": "", "text": "At his sentencing hearing, Ochoa-Gaytan conceded that he had been deported after having been convicted of an aggravated felony. The district court therefore sentenced Ochoa-Gaytan to more than two years imprisonment for his illegal reentry. Ochoa-Gaytan argues that 8 U.S.C. § 1326(b)(2) is a substantive offense rather than a sentencing factor. Consequently, he argues that he should have been exposed to no more than two years imprisonment because his indictment did not allege that he had previously been convicted, the issue was not presented to the jury, and the government did not prove beyond a reasonable doubt that he had been convicted of an aggravated felony. He argues that the district court’s imposition of a sixty-three month sentence was erroneous under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 120 S.Ct. at 2362-63. As the government correctly notes, our decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2000), which was filed after Ochoa-Gaytan filed his supplemental brief that addressed the effect of Apprendi on his case, forecloses Ochoa-Gaytan’s argument. In Pacheco-Zepeda, we considered the exact issue raised here. There, we considered the effect of Apprendi on Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Almendarez-Torres held that 8 U.S.C. § 1326(b)(2)-the statutory provision which was the basis for Ochoa-Gaytan’s enhanced sentence-“simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime.” Id. at 226, 118 S.Ct. 1219. As a result, recidivism is not an element of the crime defined by § 1326 and so need not be charged in the indictment and proved beyond a reasonable doubt. Id. at 239, 118 S.Ct. 1219. Ochoa-Gaytan argues that A-pprendi overrules Almendarez-Torres. However, in Paeheco-Zepeda, we held that the Apprendi Court “unmistakably carved out an exception for ‘prior convictions’ that specifically preserved the" }, { "docid": "21504279", "title": "", "text": "sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which generally requires that facts increasing a sentence beyond the statutory maximum be found by a jury or admitted by the defendant. According to Becerril, the judicial finding that he was previously deported after a crime of violence violates Apprendi because it increased his statutory maximum from two to 20 years. See 8 U.S.C. § 1326; United States v. Govian-Sandoval, 462 F.3d 1090 (9th Cir.2006). We disagree. As to the conviction itself, Becerril’s argument is squarely foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which allows judicial fact-finding of prior convictions, and also by our decisions confirming that Almendarez-Torres remains binding authority. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005). And as to the date of the prior removal, the jury necessarily found that Becerril had been previously removed, and because the only removal argued to the jury occurred in 2005, the jury also necessarily found that Becerril had been removed subsequent to his 1986 robbery conviction. See United States v. Martinez-Rodriguez, 472 F.3d 1087, 1094 (9th Cir.2007). Further, Becerril never challenged any of his prior removals and did not raise the issue at sentencing. Therefore, any error here would not warrant reversal. Coviaur-Sandoval, 462 F.3d at 1098. C.Acceptance of Responsibility Becerril argues that the district court improperly denied him a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. “In making the determination whether a defendant has accepted responsibility, the district court may not consider against the defendant any constitutionally protected conduct.” United States v. OchoaGaytan, 265 F.3d 837, 842 (9th Cir.2001) (citation and quotation marks omitted). Here, contrary to Becerril’s contention, the court’s decision did not rest improperly on the fact that he challenged the validity of his deportation proceedings. Rather, the court relied on Becerril’s failure to admit his earlier deportation in his post-arrest statements or at trial. Nothing in the trial transcript suggests Becerril admitted being deported" }, { "docid": "13056654", "title": "", "text": "than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 466, 120 S.Ct. 2348. While the majority opinion in Apprendi noted that “it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested,” 530 U.S. at 489, 120 S.Ct. 2348 (footnote omitted), the Court specifically carved out and maintained the exception for “prior convictions” explained in Almendarez-Torres. See id. Thus, “Apprendi does not overrule the holding of Almendarez-Torres ... that penalty enhancements based on recidivism need not be established beyond a reasonable doubt.” United States v. Brough, 243 F.3d 1078, 1081 (7th Cir.2001). Because Skidmore’s three separate violent felony convictions were the reason he was subjected to the enhanced statutory maximum provided by § 924(e) for his violation of § 922(g)(1), we conclude that his sentence of 262 months was proper under Apprendi. See 18 U.S.C. § 924(e)(1); see also United States v. Thomas, 242 F.3d 1028, 1034 (11th Cir. 2001) (citation omitted) (finding no Ap-prendi violation in imposition of 295 month sentence where jury found the defendant guilty of violating § 922(g) and defendant had three prior violent felony convictions because “§ 924(e)(1) authorizes a punishment of not less than fifteen years (which means up to life imprisonment) for violation of § 922(g) where the defendant has previously been convicted of three violent felonies or serious drug offenses”); United States v. Dorris, 236 F.3d 582, 586-88 (10th Cir.2000) (dismissing defendant’s claim that 210 month sentence violated Apprendi when sentence was imposed pursuant to § 924(e) after jury convicted defendant of violating § 922(g)(1) and defendant had three prior violent felony convictions); United States v. Mack, 229 F.3d 226, 235 n. 12 (3d Cir.2000) (noting that Apprendi did not affect defendant’s 262 month sentence, imposed pursuant to § 924(e), after a jury found defendant guilty of violating § 922(g)(1) because the statutory maximum for that defendant, who had three prior" }, { "docid": "22458388", "title": "", "text": "to 235-months imprisonment for Count I, 180 months for Count II and 120 months for Count III, all sentences to run concurrently. He timely appeals his sentence. STANDARD OF REVIEW The legality of a sentence is reviewed de novo. United States v. Murphy, 65 F.3d 758, 762 (9th Cir.1995). The constitutionality of a statutory provision is reviewed de novo. Taylor v. United States, 143 F.3d 1178, 1179 (9th Cir.1998). Whether a conviction is a predicate felony under section 924(e) is reviewed de novo. United States v. Bonat, 106 F.3d 1472, 1474 (9th Cir.1997). DISCUSSION I. Constitutional Challenges to Tighe’s Sentence under ACCA Tighe brings both facial and as-applied constitutional challenges to his sentences under ACCA. We address each challenge in turn. A. Facial Challenge The Armed Career Criminal Act, 18 U.S.C. § 924(e), mandates a minimum sentence of 15 years for anyone convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) who is found to have three previous convictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e)(1); United States v. McElyea, 158 F.3d 1016, 1018 (9th Cir.1998). A defendant convicted of being a felon in possession of a firearm who has not been previously convicted of three violent felonies or serious drug offenses can be sentenced only to a maximum of 10 years. 18 U.S.C. § 924(a)(2). Tighe challenges ACCA on its face on the ground that it “allows for a substantial increase in [the] statutory maximum [sentence] based on prior convictions, the existence of which need only be proved to the judge by a preponderance of the evidence.” He argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the fact of his prior convictions must be proved to a jury beyond a reasonable doubt. Under the current state of the law, the Constitution does not require prior convictions that increase a statutory penalty to be charged in the indictment and proved before a jury beyond a reasonable doubt. United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir.2001)" }, { "docid": "22058562", "title": "", "text": "subsequent to a 2003 felony conviction. Salazar-Lopez objected, arguing that only the two-year maximum under § 1326(a), and not the ten-year maximum provided for in § 1326(b)(1), was applicable to his case, because the facts necessary to sustain § 1326(b)(1)’s sentencing enhancement had not been charged in the indictment and proved beyond a reasonable doubt to a jury. The district court rejected Salazar-Lopez’s argument and largely adopted the pre-sentence report’s sentencing calculations, with the exception that the court decreased Salazar-Lopez’s offense level by two for acceptance of responsibility. Salazar-Lopez was sentenced to 21 months of imprisonment and three years of supervised release. II. Analysis Because Salazar-Lopez made a timely challenge to his sentence below, he has properly preserved his claim of error. “Preserved Apprendi challenges are reviewed de novo.” United States v. Hollis, 490 F.3d 1149, 1154 (9th Cir.2007) (citing United States v. Smith, 282 F.3d 758, 771 (9th Cir.2002)). A. The Sixth Amendment Violation An alien found in the United States after having previously been removed violates 8 U.S.C. § 1326. The maximum statutory penalty under § 1326 is two years of imprisonment and one year of supervised release, unless the previous removal was subsequent to certain types of convictions. See 8 U.S.C. § 1326(a),(b); 18 U.S.C. §§ 3583(b), 3559(a). In this case, the district court found that Salazar-Lopez had been removed after such a felony conviction, and so it determined that the applicable statutory maximum was ten years of imprisonment and three years of supervised release. 8 U.S.C. § 1326(b)(1), 18 U.S.C. §§ 3583(b), 3559(a). On appeal, Salazar-Lopez renews his contention that his exposure to § 1326(b)’s higher statutory maximum violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because neither the date of his prior removal nor the temporal relationship between the removal and his prior conviction was alleged in the indictment and proved to a jury. We agree that an Apprendi error occurred here. In United States v. Covian-Sandoval, 462 F.3d 1090, 1096-98 (9th Cir.2006), we recognized that the fact of a prior conviction need not have been submitted to" }, { "docid": "22432861", "title": "", "text": "subsection of that statute authorized a sentence of up to twenty years for an alien who illegally returned to this country after having previously been deported following an aggravated felony. See 8 U.S.C. § 1326(b)(2). The Court determined that the failure of the indictment to allege the defendant’s prior aggravated felonies and the applicability of subsection (b)(2) neither contravened the Sixth Amendment nor implicated due process concerns, because the statutory provision was simply a penalty provision to be applied by a sentencing judge in a post-conviction setting' — ie., it was not a separate offense. Almendarez-Torres, 523 U.S. at 233-36, 118 S.Ct. 1219. In Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, the Court enunciated its holding that “[ojther 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. In explaining this rule, the Court in Apprendi limited its ruling in Almendarez-Torres, pointing to two factors that distinguished Almendarez-Torres’s case: “the certainty that procedural safeguards attached to any ‘fact’ of prior conviction” and “the reality that Almendarez-Torres did not challenge the accuracy of that fact in his case.” Id. at 488, 120 S.Ct. 2348. Together, these factors “mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” Id. 3. In its recent Shepard decision, the Court addressed the application of the prior conviction exception to a disputed fact “about a prior conviction.” 125 S.Ct. at 1262 (emphasis added). Shepard, who was convicted under 18 U.S.C. § 922(g), initially faced a maximum sentence, under the Guidelines, of thirty-seven months; however, the Government sought to increase his sen tence to the fifteen-year mandatory minimum of § 924(e), which applies to felons with three prior drug or violent felony convictions. Shepard had three prior burglary convictions, and the Government maintained that those burglaries constituted “violent felonies.” Shepard, 125 S.Ct. at 1258. In making this contention," }, { "docid": "5159780", "title": "", "text": "FISHER, Circuit Judge: This appeal arises from an arguable ambiguity in our cases applying Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to indictments and sentences under 8 U.S.C. § 1326. We now eliminate that ambiguity, and clarify that an indictment charging the illegal reentry of a previously removed alien may support an increased maximum sentence under 8 U.S.C. § 1326(b)(2) — a sentence enhancement applicable to aliens removed after an aggravated felony conviction — even if it alleges the date of the prior removal without specifying the relative date of the prior conviction. The date of an alien’s removal is the only fact “[ojther than the fact of a prior conviction ... that increases the penalty for [the] crime beyond the prescribed statutory maximum” of two years. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Therefore, with the removal date properly established, the district court may determine whether the prior felony conviction predated the defendant’s removal. Accordingly, when the indictment alleges the removal date, a district court does not abuse its discretion by requiring the defendant to admit his removal date as the factual basis for a guilty plea to the indictment, as the district court required here. I. Pedro Mendoza-Zaragoza was indicted under 8 U.S.C. § 1326 and charged with being an alien in the United States after deportation. Under § 1326(a), a removed alien who thereafter is found in the U.S. without the Attorney General’s express consent is subject to a fine and a maximum term of two years imprisonment. Section 1326(b), however, increases the maximum sentence to 20 years if the alien’s removal “was subsequent to a conviction for commission of an aggravated felony.” 8 U.S.C. § 1326(b)(2). Subsection (b) “is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist” but “does not define a separate crime.” Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); see United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir.2000). It is undisputed that Mendoza-Zaragoza is such a recidivist, who was" }, { "docid": "22458359", "title": "", "text": "is mandatory if the circumstances apply.” United States v. Villasenor-Cesar, 114 F.3d 970, 973 (9th Cir.1997). Ochoa-Gaytan’s offense level was 24, not considering any adjustment for acceptance of responsibility. It is uncontested that upon his arrest, Ochoa-Gaytan gave a complete confession. As with the defendant in Ruelas-Arreguin, Ochoa-Gaytan “confirmed his prior criminal record and admitted ... that he was in the United States illegally, that he had been deported previously, and that he had used a false name.” 219 F.3d at 1062. Because Ochoa-Gaytan timely admitted all the factual elements of the crime for which he was indicted, if the district court finds that he accepted responsibility under § 3El.l(a), it should award him the additional level reduction under § 3El.l(b). B. Apprendi Claim The base penalty for illegal reentry after deportation is a maximum of two years imprisonment. 8 U.S.C. § 1326(a). If an alien illegally reenters after having been deported subsequent to a conviction for an aggravated felony, the maximum penalty increases to a maximum of twenty years imprisonment. 8 U.S.C. § 1326(b)(2). At his sentencing hearing, Ochoa-Gaytan conceded that he had been deported after having been convicted of an aggravated felony. The district court therefore sentenced Ochoa-Gaytan to more than two years imprisonment for his illegal reentry. Ochoa-Gaytan argues that 8 U.S.C. § 1326(b)(2) is a substantive offense rather than a sentencing factor. Consequently, he argues that he should have been exposed to no more than two years imprisonment because his indictment did not allege that he had previously been convicted, the issue was not presented to the jury, and the government did not prove beyond a reasonable doubt that he had been convicted of an aggravated felony. He argues that the district court’s imposition of a sixty-three month sentence was erroneous under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 120 S.Ct." } ]

[ { "docid": "3833472", "title": "", "text": "railed clips causes or contributes to the adhering performed by the HDPE foam. Thus, the disclosed adherents remain the “sole means” for that function. In addition, the sole means limitation refers to the specific bonding of the rail tie to the rail pad to prevent erosion of the concrete rail tie with a watertight seal. Thus, the foam gasket primarily prevents erosion. In contrast, the primary purpose of the clamps is to lock or hold the system in place. The district court correctly discerned that the specification provides adequate distinctions between clamping and adhering to show possession of the “sole means” aspect of the claimed invention. Inventor’s Testimony Invoking the doctrine of assignor estoppel, the district court excluded Mr. Young’s testimony. “Assignor estoppel is an equitable doctrine that prevents one who has assigned the rights to a patent (or patent application) from later contending that what was assigned is a nullity.” Diamond Scientific Co. v. Ambico, Inc., 848 F.2d 1220, 1224 (Fed.Cir.1988). Thus, an assignor and parties in privity with the assignor are estopped or barred from asserting invalidity defenses. Id. In this case, the district court invoked that doctrine to bar an assignor from testifying against the validity of its own patent. Courts frequently mention four justifications for the doctrine of assignor estoppel: “(1) to prevent unfairness and injustice; (2) to prevent one [from] benefiting from his own wrong; (3) [to adopt the] analogy [of]... estoppel by deed in real estate; and (4) [to adopt the] analogy to a landlord-tenant relationship.” Id. (quoting Hal Cooper, Estoppel to Challenge Patent Validity: The Case of Private Good Faith vs. Public Policy, 18 Case W. Res. 1122, 1128 (1967)). This case relies primarily on the “unfairness and injustice” justification. “[A]n assignor should not be permitted to sell something and later assert that what was sold is worthless, all to the detriment of the assignee.” Diamond, 848 F.2d at 1224. “The principle of fair dealing as between assignor and assignee of a patent whereby the assignor will not be allowed to say that what he has sold as a patent was not a" } ]

[ { "docid": "12320670", "title": "", "text": "for reading such a limitation into the claims. See E.I. DuPont de Nemours & Co., 849 F.2d at 1433, 7 USPQ2d at 1131. B. Assignor Estoppel In Diamond Scientific Co. v. Ambico, Inc., 848 F.2d 1220, 1224, 6 USPQ2d 2028, 2031 (Fed.Cir.), cert. dismissed, 487 U.S. 1265, 109 S.Ct. 28, 101 L.Ed.2d 978 (1988), we reaffirmed the doctrine of assignor estoppel which precludes a patent assignor and those in privity with the assignor from contending that the patent is a nullity. Appellants argue that applying assignor estoppel was error because: (1) MSI is not in privity with Luniewski, (2) Luniewski was misled and under duress when he signed the declarations, and (3) the inequitable conduct defense is not subject to assignor estoppel. 1. Privity Assignor estoppel is an equitable doctrine, id. at 1224, 6 USPQ2d at 2030, “that is mainly concerned with the balance of the equities between the parties.” Id. at 1225, 6 USPQ2d at 2031. Those in privity with the assignor partake of that balance; hence, extension of the estoppel to those in privity is justified. See id. at 1224, 6 USPQ2d at 2030. What constitutes “privity” varies, depending on the purpose for which privity is asserted. See American Mach. Co. v. Everedy Mach. Co., 35 F.2d 526, 528, 3 USPQ 196, 198 (E.D.Pa.1929) (distinguishing use of privity for estoppel from use of privity for imposition of personal liability); National Cash Register Co. v. Remington Arms Co., 283 Fed. 196, 201 (D.Del.1922), aff'd, 286 Fed. 367 (3d Cir.1923) (distinguishing subordinate in privity with principal from the reverse). Privity, like the doctrine of assignor estoppel itself, is determined upon a balance of the equities. If an inventor assigns his invention to his employer company A and leaves to join company B, whether company B is in privity and thus bound by the doctrine will depend on the equities dictated by the relationship between the inventor and company B in light of the act of infringement. The closer that relationship, the more the equities will favor applying the doctrine to company B. See, e.g., Douglass v. United States Appliance Corp.," }, { "docid": "3227535", "title": "", "text": "if the district court correctly applied estoppel to Mentor, Meta escapes any estoppel because it developed the accused devices well before selling itself to Mentor. Although this court has applied assignor estoppel to parties in privity -with the assignor, Meta contests the justification for applying assignor estoppel in this case. Ill Assignor estoppel prevents , a party who assigns a patent to another from later challenging the validity of the assigned patent. See Diamond Scientific v. Ambico, Inc., 848 F.2d 1220, 1224, 6 USPQ2d 2028, 2030 (Fed.Cir.1988). This doctrine prevents the “unfairness and injustice” of permitting a party “to sell something and later to assert that what was sold is worthless.” Id. This court explained that an assignment contains an “implicit representation by the assignor that the patent rights that he is assigning (presumably for value) are not worthless.” Id. In applying assignor estoppel in Diamond Scientific, this court determined that the Supreme Court’s reasons for limiting licensee estoppel in Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), did not apply to assignor estoppel. In Lear, the Supreme Court permitted a licensee to contest the validity of the licensed patent: Licensees may often be the only individuals with enough economic incentive to challenge the patentability of an inventor’s discovery. If they are muzzled, the public may 'continually be required to pay tribute to would-be monopolists without need or justification. We think it plain that the technical requirements of contract doctrine must give way before the demands of the public interest in the typical situation involving the negotiation of a license after a patent has issued. Id. at 670-71, 89 S.Ct. 1902. As already noted, this court discerned that this logic does not apply to assignors. Diamond Scientific, 848 F.2d at 1224. In Diamond Scientific, the inventor-assignor left the employ of the assignee and started a competing company. See id. at 1222. When his prior employer sued for infringement of the assigned patents, the inventor attempted to assert that the patents were invalid. See id. This court explained that, because an assignor “has already been" }, { "docid": "3227534", "title": "", "text": "on an error of law or on clearly erroneous factual findings. See A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1039, 22 USPQ2d 1321, 1333 (Fed.Cir.1992). On appeal, Mentor and Meta argue that the district court abused its discretion by incorrectly determining that Quickturn would likely show infringement of the ’473 patent. In particular, they argue that Quickturn did not show a likelihood of success in defending the validity of the ’473 patent. The district court found a likelihood of success on validity based on its grant of summary judgment that assignor estoppel barred both Mentor and Meta from challenging the validity of the ’473 patent. Mentor argues that the district court improperly determined that Mentor was es-topped from challenging the validity of the ’473 patent. In particular, Mentor asserts that the district court overlooked important factors before applying the doctrine of assignor estoppel. Mentor further argues that the warranty disclaimer in its sales agreement with Quickturn reserved the right to challenge the validity of the ’473 patent. Meta argues that, even if the district court correctly applied estoppel to Mentor, Meta escapes any estoppel because it developed the accused devices well before selling itself to Mentor. Although this court has applied assignor estoppel to parties in privity -with the assignor, Meta contests the justification for applying assignor estoppel in this case. Ill Assignor estoppel prevents , a party who assigns a patent to another from later challenging the validity of the assigned patent. See Diamond Scientific v. Ambico, Inc., 848 F.2d 1220, 1224, 6 USPQ2d 2028, 2030 (Fed.Cir.1988). This doctrine prevents the “unfairness and injustice” of permitting a party “to sell something and later to assert that what was sold is worthless.” Id. This court explained that an assignment contains an “implicit representation by the assignor that the patent rights that he is assigning (presumably for value) are not worthless.” Id. In applying assignor estoppel in Diamond Scientific, this court determined that the Supreme Court’s reasons for limiting licensee estoppel in Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), did" }, { "docid": "23262002", "title": "", "text": "the licensee, who, without Lear might be forced to continue to pay for a potentially invalid patent, the assignor who would challenge the patent has already been fully paid for the patent rights. Assignor estoppel is an equitable doctrine that prevents one who has assigned the rights to a patent (or patent application) from later contending that what was assigned is a nullity. The estoppel also operates to bar other parties in privity with the assignor, such as a corporation founded by the assignor. See, e.g., Stubnitz-Greene Spring Corp. v. Fort Pitt Bedding Co., 110 F.2d 192, 195-96 (6th Cir.1940). The estoppel historically has applied to invalidity challenges based on “novelty, utility, patentable invention, anticipatory matter, and the state of the art.” Babcock v. Clarkson, 63 F. 607, 609 (1st Cir.1894). The four most frequently mentioned justifications for applying assignor estoppel are the following: “(1) to prevent unfairness and injustice; (2) to prevent one [from] benefiting from his own wrong; (3) by analogy to estoppel by deed in real estate; and (4) by analogy to a landlord-tenant relationship.” Cooper, Estoppel to Challenge Patent Validity: The Case of Private Good Faith vs. Public Policy, 18 Case W.Res. 1122 (1967). Although each rationale may have some utility depending on the facts presented by the particular case, our concern here is primarily with the first one. Courts that have expressed the estoppel doctrine in terms of unfairness and injustice have reasoned that an assignor should not be permitted to sell something and later to assert that what was sold is worthless, all to the detriment of the assignee. Justice Frankfurter’s dissent in Scott Paper explained that the doctrine was rooted in the notion of fair dealing. “The principle of fair dealing as between assignor and assignee of a patent whereby the assignor will not be allowed to say that what he has sold as a patent was not a patent has been part of the fabric of our law throughout the life of this nation.” Scott Paper v. Marcalus Mfg. Co., 326 U.S. 249, 260, 66 S.Ct. 101, 106, 90 L.Ed. 47 (Frankfurter," }, { "docid": "23262004", "title": "", "text": "J., dissenting). “The essence of the principle of fair dealing which binds the assignor of a patent in a suit by the assignee, even though it turns out that the patent is invalid or lacks novelty, is that in this relation the assignor is not part of the general public but is apart from the general public.” Id. at 261-62, 66 S.Ct. at 107. In other words, it is the implicit representation by the assignor that the patent rights that he is assigning (presumably for value) are not worthless that sets the assignor apart from the rest of the world and can deprive him of the ability to challenge later the validity of the patent. To allow the assignor to make that representation at the time of the assignment (to his advantage) and later to repudiate it (again to his advantage) could work an injustice against the assignee. IV. Our holding is that this is a case in which public policy calls for the application of assignor estoppel. We are, of course, not unmindful of the general public policy disfavoring the repression of competition by the enforcement of worthless patents. Yet despite the public policy encouraging people to challenge potentially invalid patents, there are still circumstances in which the equities of the contractual relationships between the parties should deprive one party (as well as others in privity with it) of the right to bring that challenge. Appellants argue that assignor estoppel is necessarily a variation of estoppel by conduct and should be governed by the traditional elements of equitable estoppel. But the Supreme Court has never analyzed assignor estoppel by reference to the elements of equitable estoppel and has explicitly recognized assignor estoppel to be the functional equivalent of estoppel by deed. Westinghouse, 266 U.S. at 348-49, 45 S.Ct. at 119. Estoppel by deed is a form of legal, not equitable, estoppel. AMP, Inc. v. United States, 389 F.2d 448, 452, 156 USPQ 647, 649, 182 Ct.Cl. 86, cert. denied, 391 U.S. 964, 88 S.Ct. 2033, 20 L.Ed.2d 878 (1968). The Westinghouse Court did not specify whether assignor estoppel operates" }, { "docid": "10189005", "title": "", "text": "However, because Plaintiffs hear the burden to prove that assignor estoppel bars Snap-On’s invalidity claims, the Court addresses it as though it was raised in Plaintiffs’ own. motion. Assignor estoppel “is an equitable doctrine that, prevents one who has assigned the rights to a patent.. .from later contending that what was assigned was a nullity.” Diamond Scientific Co. v. Ambico, Inc., 848 F.2d 1220, 1224 (Fed. Cir. 1988). The point of the doctrine is to prevent an assignor’s windfall — that is, profiting from selling his rights in a patent and then profiting again by invalidating the patent, thereby regaining his ability to practice the invention freely. See MAG Aerospace Indus., Inc. v. B/E Aerospace, Inc., 816 F.3d 1374, 1379-80 (Fed. Cir. 2016). Assignor estoppel also applies to those in privity with the,assignor, and the determination of privity requires an equi table consideration of all relevant facts and circumstances. See Shamrock Tech. v. Med. Sterilization, Inc., 903 F.2d 789, 793-94 (Fed. Cir. 1990). Application of the doctrine is within the “sound discretion” of the trial court. See Carroll Touch, Inc. v. Electro Mech. Sys., 15 F.3d 1573, 1579 (Fed. Cir. 1993). In this case, Plaintiffs' contend that Snap-On and Moli have colluded to invalidate the patents-in-suit. It is undisputed that Milwaukee and Moli entered-into an agreement in 2003 which provided for joint ownership of the invention at issue here. Moli assigned; its rights in the invention to Plaintiffs in 2006, It is likewise undisputed that Moli itself is not violating any principle of assignor estoppel; it is not a party to this proceeding and has never tried to challenge the patents itself. Plaintiffs’ theory is that Snap-On is in privity with Moli and therefore barred by the same assignor estoppel that would prevent Moli’s participation in this suit. Plaintiffs claim that Snap-On worked with Moli to create allegedly infringing battery cells for Snap-On’s use in its products. Further, Snap-On has been using former Moli employees, including Reid, Reimers, and von Sacken, to offer biased opinions and dig up confidential or damaging information from Moli on Snap-On’s behalf. Additionally, Plaintiffs complain" }, { "docid": "10189008", "title": "", "text": "Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001); Wilson v. Am. Trans Air, Inc., 874 F.2d 386, 392 (7th Cir. 1989). That is the case here. Despite Plaintiffs’ suspicions and speculation that Snap-On and Moli are in cahoots, the relevant authorities set a far higher bar for finding that privity exists. The Federal Circuit has explained that [pjrivity, like the doctrine of assignor estoppel itself, is determined upon a balance of the equities. If an inventor assigns his invention to his employer company A and leaves to join company B, whether company B is in privity and thus bound by the doctrine will depend on the equities dictated by the relationship between the inventor and company B in light of the act of infringement. The closer that relationship, the more the equities will favor applying the doctrine to company B. Shamrock Techs., 903 F.2d at 793. Thus, the most common circumstance envisioned by the Court of Appeals for application of assignor estoppel is when an inventor himself assigns his rights away, then joins another firm and helps that firm infringe the patent and defend against the eventual lawsuit. See Diamond Scientific, 848 F.2d at 1225 (inventor who participated actively in patent application process and executed inventor’s oath was estopped from challenging the patent after forming his own firm producing infringing products). Of course, that did not occur here. Plaintiffs do not concede, and indeed vigorously oppose, the notion that any Moli employee is an inventor as to the patents-in-suit. Instead, the record reflects that only Moli the corporate entity had any ownership interest in the patents, and even that was joint with Plaintiffs. Thus, Snap-On’s entreaties to former Moli employees are not immediately apparent as the sort of side-switching that assignor estoppel js meant to proscribe. Nevertheless, the privity inquiry is all-encompassing, so the lack of such an obvious connection between Moli and Snap-On is not fatal. But a holistic assessment of the circumstances surrounding SnaprOn’s dealings with Moli and former Moli employees do not permit an inference of privity. In Shamrock Technologies, a named inventor" }, { "docid": "3227538", "title": "", "text": "inventor in return for the stock, cash, and a promissory note for the remaining loan balance. See id. Even though the assignment from Shorty to the inventor merely had the effect of reversing the first assignment, this court estopped Shorty from attacking the patent’s validity. See id.; see also Carroll Touch, Inc. v. Electro Mechanical Sys., Inc., 15 F.3d 1573, 1579-81, 27 USPQ2d 1836, 1841-42 (Fed.Cir.1993); Intel Corp. v. United States Int’l Trade Comm’n, 946 F.2d 821, 836-39, 20 USPQ2d 1161, 1175-77 (Fed.Cir.1991); Shamrock Techs., Inc. v. Medical Sterilization, Inc., 903 F.2d 789, 793-96, 14 USPQ2d 1728, 1732 (Fed.Cir.1990); cf. Diamond Scientific, 848 F.2d at 1225 (explaining that assignor depends upon examines the balance of the equities between the parties). Because this case does not present sufficient exceptional circumstances to overcome the unfairness to Quickturn without application of the doctrine, the district court properly estopped Mentor from challenging the validity of the ’473 patent. Quickturn paid Mentor more than $200,000 in cash and stock for the ’473 patent and related applications. While the sales agreement does not allocate the purchase price between the various assets conveyed, Mentor nonetheless received appreciable value for the ’473 patent. Now, Mentor seeks to deprive Quickturn of an asset it sold, to Quickturn. If Mentor were successful, such a result would be an injustice to Quickturn. Furthermore, Mentor controlled the prosecution of the ’473 patent. To the extent that it challenges the validity of the ’473 patent due to errors made during prosecution, Mentor should not now profit from its own sloppiness or oversight. Moreover, in this ease, the sales agreement does not reserve to Mentor the right to assert a validity challenge nor does it contain a waiver of Quickturris ability to assert assignor estoppel. The language in the sales agreement merely allocates the risk that the patent will be declared invalid to Quickturn. This warranty clause does not alter the background rule that an assignor cannot challenge the validity of the patent it has sold. To overcome the presumption of assignor estoppel, the sales agreement between Mentor and Quickturn would have needed to" }, { "docid": "15822661", "title": "", "text": "322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (stating entry of summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”). III. ASSIGNOR ESTOPPEL The court previously found that the doctrine of assignor estoppel negated PAN’s affirmative defense of invalidity of the ’634 patent. (D.I.53, D.I.54) The parties stipulated that this ruling applied to the ’752 patent. (D.I.80) As to the ’700, ’347, ’723 and ’459 patents, the court found that issues of material fact precluded resolution of the issue, because privity is determined based upon a balancing of the equities, a fact-sensitive inquiry that must be resolved outside the pleadings. (D.I.80) In Diamond Scientific Co. v. Ambico, Inc., 848 F.2d 1220, 1224 (Fed. Cir.1988), the Federal Circuit reaffirmed the existence of the doctrine of assignor estoppel. As the court explained, “[a]s-signor estoppel is an equitable doctrine that prevents one who assigned the rights to a patent (or patent application) from later contending that what was assigned is a nullity. The estoppel also operates to bar other parties in privity with the assignor, such as a corporation founded by the assignor.” Id. As the Court explained, the doctrine recognizes “the implicit representation by the assignor that the patent rights that he is assigning (presumably for value) are not worthless .... To allow the assignor to make that representation at the time of the assignment (to his advantage) and later to repudiate it (again to his advantage) could work an injustice against the assignee.” Id. After concluding that assignor estoppel remained a valid defense, the Federal Circuit stated that an analysis of the doctrine “must be concerned mainly with the balance of equities between the parties.” Id. at 1225. The Federal Circuit, in Shamrock Technologies, Inc. v. Medical Sterilization, Inc., 903 F.2d 789, 793 (Fed.Cir.1990), reiterated that “[ajssignor estoppel is an equitable doctrine ... that is mainly concerned with the balance of the equities between the parties ... [and t]hose in privity" }, { "docid": "22827166", "title": "", "text": "Perlegos was es-topped from challenging the patent's validity, it was necessary for the Commission to determine whether Atmel or GI/M or both were in privity with George Perlegos and similarly estopped. The Commission used the following test to determine privity: whether there is an identity of interests between the persons potentially subject to estoppel with respect to the subject matter ... sufficient to warrant, in light of the equities of the situation, placing the corporation or other person in the shoes of the assignor/inventor. Decision at 23. The Commission determined that Atmel was in privity with George Perlegos and was therefore estopped to challenge the patent’s validity, but that GI/M did not have sufficient contacts with George Perle-gos for there to be an “identity of interests.” Decision at 25. The Commission, in essence, disregarded the relationship between Atmel and GI/M because it found that Atmel was not George Perlegos’ “alter ego.” The Commission concluded “we do not believe there is any basis for extending the privity chain in this manner.” Decision at 24. Intel has appealed the Commission’s decision that GI/M was not estopped because it was not in privity with George Perlegos. It contends that the Commission’s test for privity is unnecessarily narrow. We hold that the Commission erred in failing to apply the doctrine of assignor estoppel to GI/M. The doctrine of assignor estoppel is applied “to prevent unfairness and injustice.” Diamond, 848 F.2d at 1224, 6 USPQ2d at 2030. It is an equitable doctrine [“jmainly concerned with the balance of the equities between the parties.” Those in privity with the assignor partake of that balance; hence, extension of the es-toppel to those in privity is justified. Shamrock Technologies, Inc. v. Medical Sterilization, Inc., 903 F.2d 789, 793, 14 USPQ2d 1728,1732 (Fed.Cir.1990) (citations omitted). In determining whether GI/M was in privity with George Perlegos, all contacts between GI/M and George Perlegos, direct and indirect, must be considered, including the contacts between Atmel and GI/M. We are convinced the Commission improperly limited its analysis to whether the relationship between George Perlegos and GI/M was enough to find that the" }, { "docid": "10189007", "title": "", "text": "that communications between Moli and Snap-On’s counsel show an effort to feed useful information for Snap-On to deploy against Plaintiffs in this action. This theory does not hold water. But before describing its lack of merit,. the Court must address another wrinkle here: Plaintiffs did not assert assignor estoppel in any prior pleading. The parties agree that assignor estoppel is an affirmative defense that must be pleaded. See Semiconductor Energy Lab. Co., Ltd. v. Nagata, 706 F.3d 1365, 1370 (Fed. Cir. 2013); Fed. R. Civ. P. 8(c)(1). They have now sought leave to amend their pleadings to include it, (Docket # 220), but that motion was not filed until after the summary judgment deadline had passed. Thus, the Court has to consider not simply whether the defense is meritorious, but also whether Plaintiffs should be permitted to-raise it at all. The Court answers both those questions in the negative. A court may decide that a claim is futile, and therefore deny leave to amend, if it would not survive a motion for summary judgment. Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001); Wilson v. Am. Trans Air, Inc., 874 F.2d 386, 392 (7th Cir. 1989). That is the case here. Despite Plaintiffs’ suspicions and speculation that Snap-On and Moli are in cahoots, the relevant authorities set a far higher bar for finding that privity exists. The Federal Circuit has explained that [pjrivity, like the doctrine of assignor estoppel itself, is determined upon a balance of the equities. If an inventor assigns his invention to his employer company A and leaves to join company B, whether company B is in privity and thus bound by the doctrine will depend on the equities dictated by the relationship between the inventor and company B in light of the act of infringement. The closer that relationship, the more the equities will favor applying the doctrine to company B. Shamrock Techs., 903 F.2d at 793. Thus, the most common circumstance envisioned by the Court of Appeals for application of assignor estoppel is when an inventor himself assigns his rights away," }, { "docid": "12320675", "title": "", "text": "possibility of inequitable conduct, and that Luniewski feared losing his job and bonus if he did not sign the declarations. It suffices to say here that we agree with the district court’s determination that no genuine issue of material fact as to misrepresentation or duress exists. Whether Luniewski was misled on inven-torship and patentability is a question relating to the viability of the patent application, not to the validity of the assignment agreement. Hence it is not among the “usual defenses to the contract of assignment”. As discussed more fully below, the inequitable conduct defense is unfounded on its face. Employment, salary and bonuses are valid consideration for the assignment, see id. at 1225, 6 USPQ2d at 2031, and to hold that fear of their loss constitutes duress or intimidation would undermine every assignment by an employee-inventor. 3. Inequitable Conduct Appellants argue that Diamond Scientific dealt with a challenge to patent validity but is silent on the equitable defense of inequitable conduct. We reject the contention that mere classification of a defense as equitable bars consideration of assignor es-toppel. It is at best incongruous to suppose that the equitable doctrine of assignor estoppel can never be applied to an equitable defense. The premise of the doctrine, prevention of unfairness and injustice, is not removed upon the mere denomination of a defense as “equitable”. Diamond Scientific, 848 F.2d at 1224, 6 USPQ2d at 2031 (“Courts that have expressed the estoppel doctrine in terms of unfairness and injustice have reasoned that an assignor should not be permitted to sell something and later to assert that what was sold is worth less, all to the detriment of the assignee.”). If we were to hold otherwise, Diamond Scientific could be avoided by merely couching invalidity defenses in terms of inequitable conduct, precisely as appellants attempt here to do. See Tenneco Resins, Inc. v. Reeves Bros., Inc., 736 F.2d 1508, 1512, 222 USPQ 276, 279 (Fed.Cir.1984) (“While the affirmative defenses of invalidity and unenforceability against an asserted patent are technically separate and distinct, realistically they involve related if not identical evidence [and are] ‘hopelessly intermingled’" }, { "docid": "3227537", "title": "", "text": "fully paid for the patent rights,” the public policy underlying Lear did not apply. Id. at 1224. Due to the intrinsic unfairness in allowing an assignor to challenge the validity of the patent it assigned, the implicit representation of validity contained in an assignment of a patent for value raises the presumption that an estoppel will apply. Without exceptional circumstances (such as an express reservation by the assignor of the right to challenge the validity of the patent or an express waiver by the assign-ee of the right to assert assignor estoppel), one who assigns a patent surrenders with that assignment the right to later challenge the validity of the assigned patent. For example, in Q.G. Products, Inc. v. Shorty, Inc., 992 F.2d 1211, 26 USPQ2d 1778 (Fed.Cir.1993), Shorty was formed by three individuals, one of whom assigned a patent application to the company in return for a loan and an ownership interest in the company. See id. at 1212. When the business associates had a falling out, Shorty assigned the patent back to the inventor in return for the stock, cash, and a promissory note for the remaining loan balance. See id. Even though the assignment from Shorty to the inventor merely had the effect of reversing the first assignment, this court estopped Shorty from attacking the patent’s validity. See id.; see also Carroll Touch, Inc. v. Electro Mechanical Sys., Inc., 15 F.3d 1573, 1579-81, 27 USPQ2d 1836, 1841-42 (Fed.Cir.1993); Intel Corp. v. United States Int’l Trade Comm’n, 946 F.2d 821, 836-39, 20 USPQ2d 1161, 1175-77 (Fed.Cir.1991); Shamrock Techs., Inc. v. Medical Sterilization, Inc., 903 F.2d 789, 793-96, 14 USPQ2d 1728, 1732 (Fed.Cir.1990); cf. Diamond Scientific, 848 F.2d at 1225 (explaining that assignor depends upon examines the balance of the equities between the parties). Because this case does not present sufficient exceptional circumstances to overcome the unfairness to Quickturn without application of the doctrine, the district court properly estopped Mentor from challenging the validity of the ’473 patent. Quickturn paid Mentor more than $200,000 in cash and stock for the ’473 patent and related applications. While the sales agreement" }, { "docid": "23262003", "title": "", "text": "a landlord-tenant relationship.” Cooper, Estoppel to Challenge Patent Validity: The Case of Private Good Faith vs. Public Policy, 18 Case W.Res. 1122 (1967). Although each rationale may have some utility depending on the facts presented by the particular case, our concern here is primarily with the first one. Courts that have expressed the estoppel doctrine in terms of unfairness and injustice have reasoned that an assignor should not be permitted to sell something and later to assert that what was sold is worthless, all to the detriment of the assignee. Justice Frankfurter’s dissent in Scott Paper explained that the doctrine was rooted in the notion of fair dealing. “The principle of fair dealing as between assignor and assignee of a patent whereby the assignor will not be allowed to say that what he has sold as a patent was not a patent has been part of the fabric of our law throughout the life of this nation.” Scott Paper v. Marcalus Mfg. Co., 326 U.S. 249, 260, 66 S.Ct. 101, 106, 90 L.Ed. 47 (Frankfurter, J., dissenting). “The essence of the principle of fair dealing which binds the assignor of a patent in a suit by the assignee, even though it turns out that the patent is invalid or lacks novelty, is that in this relation the assignor is not part of the general public but is apart from the general public.” Id. at 261-62, 66 S.Ct. at 107. In other words, it is the implicit representation by the assignor that the patent rights that he is assigning (presumably for value) are not worthless that sets the assignor apart from the rest of the world and can deprive him of the ability to challenge later the validity of the patent. To allow the assignor to make that representation at the time of the assignment (to his advantage) and later to repudiate it (again to his advantage) could work an injustice against the assignee. IV. Our holding is that this is a case in which public policy calls for the application of assignor estoppel. We are, of course, not unmindful of" }, { "docid": "10189004", "title": "", "text": "any previously achieved constructive notice. See Am. Med. Sys., 6 F.3d at 1537-38 (observing that “[t]he world cannot be ‘put on notice’ if the patentee marks certain products, but continues to ship unmarked products, Therefore, [plaintiff] was not in full compliance with the marking statute while it continued to ship its unmarked products, which continued to mislead the public into thinking that the product was freely available.”) Id. But here, as noted above, disputes abound as to whether marking actually occurred in a consistent and continuous manner. Indeed, construing the facts in Plaintiffs’ favor, one might reasonably conclude that consistent marking by the other three licensees kept Snap-On on constructive notice despite any purported failure to mark by the two licensees whose marking periods expired. The Court is not equipped to resolve such disputes, so they must be left to the jury. 3.2 Plaintiffs’ Motion 3,2.1 Assignor Estoppel The first of Plaintiffs’ arguments — assignor estoppel against Snap-On — was actually raised by Plaintiffs in their response to Snap-On’s motion, not in their own motion. However, because Plaintiffs hear the burden to prove that assignor estoppel bars Snap-On’s invalidity claims, the Court addresses it as though it was raised in Plaintiffs’ own. motion. Assignor estoppel “is an equitable doctrine that, prevents one who has assigned the rights to a patent.. .from later contending that what was assigned was a nullity.” Diamond Scientific Co. v. Ambico, Inc., 848 F.2d 1220, 1224 (Fed. Cir. 1988). The point of the doctrine is to prevent an assignor’s windfall — that is, profiting from selling his rights in a patent and then profiting again by invalidating the patent, thereby regaining his ability to practice the invention freely. See MAG Aerospace Indus., Inc. v. B/E Aerospace, Inc., 816 F.3d 1374, 1379-80 (Fed. Cir. 2016). Assignor estoppel also applies to those in privity with the,assignor, and the determination of privity requires an equi table consideration of all relevant facts and circumstances. See Shamrock Tech. v. Med. Sterilization, Inc., 903 F.2d 789, 793-94 (Fed. Cir. 1990). Application of the doctrine is within the “sound discretion” of the trial" }, { "docid": "3227540", "title": "", "text": "include express language reserving Mentor’s right to assert an invalidity challenge. This general warranty clause, however, could exacerbate the injustice of changing the doctrine of assignor estoppel to permit Mentor to assert invalidity. While the negotiated price reflects the allocation of risk that a third party would succeed in having the ’473 patent declared invalid, Mentor’s disclaimer might prevent Quickturn from obtaining a refund of its purchase price in the event Mentor successfully asserted invalidity. Such a result would not reflect the reasonable expectations of the parties when they negotiated the sales agreement. The district court properly determined that Mentor is estopped from challenging the validity of the ’473 patent. IV Assignor estoppel also prevents parties in privity with an estopped assignor from challenging the validity of the patent. See Diamond Scientific, 848 F.2d at 1224. Whether two parties are in privity depends on the nature of their relationship in light of the alleged infringement. “The closer that relationship, the more the equities will favor applying the doctrine” of assignor estoppel. Shamrock Techs., 903 F.2d at 793. Assessing a relationship for privity involves evaluation of all direct and indirect contacts. See Intel, 946 F.2d at 838. In Shamrock Technologies, this court found that a company was in privity with an assignor who was both one of its corporate vice presidents and a shareholder. See 903 F.2d at 794. The assignor also oversaw the construction and operation of the facilities where the alleged infringement occurred. See id. As this court stated, this level of involvement made the assignor “far more than a mere employee” and justified the finding of privity. Id. Similarly, in this case, the district court correctly determined that Meta was in privity with Mentor and properly applied assignor estoppel. Ownership of Meta stock, in and of itself, gives Mentor considerable control over Meta’s operations. Even a party that owns less than a majority of a company’s stock can still exercise effective control over the company’s operations. Mentor owns all of Meta’s stock&emdash;a reliable indicator of extensive, if not complete, control over Meta’s operations. Mentor, however, is far more" }, { "docid": "625467", "title": "", "text": "’276 and ’379 invalid, unenforceable, not infringed, and to award attorney fees. This case was stayed February 19, 1986, pending a final decision in a related state court case. On March 4, 1987 this case and Civil Action No. CA-4-87-140-E were consolidated. On November 16, 1989 this consolidated case was reopened. Gary Bledsoe was made a party to this action February 15, 1991. On March 25, 1991 this cause of action was referred to United States Magistrate Judge Alex H. McGlinchey for the conduct of all further proceedings and the entry of judgment in accordance with Title 28, United States Code, Section 636(c). Prior to trial, the court denied motions for summary judgement and a motion in limine, i.e., finding in this case the equitable doctrine of assignor estoppel did not apply. Assignor estoppel is an equitable doctrine that prevents an individual and those in privity with him from invalidating his own invention. This equitable doctrine is mainly concerned with the balance of the equities between the parties. Shamrock Technologies v. Medical Sterilization, 903 F.2d 789 (Fed.Cir.1990) citing Diamond Scientific Co. v. Ambico, Inc., 848 F.2d 1220, 1224 (Fed.Cir.1988) cert. dismissed, 487 U.S. 1265, 109 S.Ct. 28, 101 L.Ed.2d 978 (1988). The four primary justifications for applying assignor estoppel are (1) to prevent unfairness and injustice; (2) to prevent one from benefiting from his own wrong; (3) by analogy to estoppel by deed in real estate; and (4) by analogy to a landlord-tenant relationship. Diamond Scientific Co., 848 F.2d at 1224. In this case the application of assignor estoppel would allow MDI and Hutson to benefit from MDI’s wrongdoing, proceeding with their patent application without calling to the attention of the PTO examiner material prior art. It would be unjust and unfair to apply assignor estoppel to Bledsoe and MTI because neither has done any wrong in connection with the ’276 or ’379 patents in suit. In a proper case general principles of equity may preclude use of assignor estoppel to bar a viable equitable defense arising from post-assignment events. Buckingham Prods. Co. v. McAleer Mfg. Co., 108 F.2d 192," }, { "docid": "23262005", "title": "", "text": "the general public policy disfavoring the repression of competition by the enforcement of worthless patents. Yet despite the public policy encouraging people to challenge potentially invalid patents, there are still circumstances in which the equities of the contractual relationships between the parties should deprive one party (as well as others in privity with it) of the right to bring that challenge. Appellants argue that assignor estoppel is necessarily a variation of estoppel by conduct and should be governed by the traditional elements of equitable estoppel. But the Supreme Court has never analyzed assignor estoppel by reference to the elements of equitable estoppel and has explicitly recognized assignor estoppel to be the functional equivalent of estoppel by deed. Westinghouse, 266 U.S. at 348-49, 45 S.Ct. at 119. Estoppel by deed is a form of legal, not equitable, estoppel. AMP, Inc. v. United States, 389 F.2d 448, 452, 156 USPQ 647, 649, 182 Ct.Cl. 86, cert. denied, 391 U.S. 964, 88 S.Ct. 2033, 20 L.Ed.2d 878 (1968). The Westinghouse Court did not specify whether assignor estoppel operates in precisely the same manner as estoppel by deed, which ordinarily prevents one from attacking any material fact found in the document (or deed) transferring the rights — whether assignor estoppel would prevent an assignor from attacking a material fact found in the assignment, thereby preventing the assignor’s assertion of invalidity. But the extent to which the concept of an estoppel by deed may or may not shape the doctrine of assignor estoppel, though it may often play a significant role, need not confine our application of the doctrine. As noted above, we believe that the primary consideration in now applying the doctrine is the measure of unfairness and injustice that would be suffered by the assignee if the assignor were allowed to raise defenses of patent invalidity. Our analysis must be concerned mainly with the balance of equities between the parties. We note first that Dr. Welter assigned the rights to his inventions to Diamond in exchange for valuable consideration (one dollar plus other unspecified consideration —presumably his salary over many years and other" }, { "docid": "3227539", "title": "", "text": "does not allocate the purchase price between the various assets conveyed, Mentor nonetheless received appreciable value for the ’473 patent. Now, Mentor seeks to deprive Quickturn of an asset it sold, to Quickturn. If Mentor were successful, such a result would be an injustice to Quickturn. Furthermore, Mentor controlled the prosecution of the ’473 patent. To the extent that it challenges the validity of the ’473 patent due to errors made during prosecution, Mentor should not now profit from its own sloppiness or oversight. Moreover, in this ease, the sales agreement does not reserve to Mentor the right to assert a validity challenge nor does it contain a waiver of Quickturris ability to assert assignor estoppel. The language in the sales agreement merely allocates the risk that the patent will be declared invalid to Quickturn. This warranty clause does not alter the background rule that an assignor cannot challenge the validity of the patent it has sold. To overcome the presumption of assignor estoppel, the sales agreement between Mentor and Quickturn would have needed to include express language reserving Mentor’s right to assert an invalidity challenge. This general warranty clause, however, could exacerbate the injustice of changing the doctrine of assignor estoppel to permit Mentor to assert invalidity. While the negotiated price reflects the allocation of risk that a third party would succeed in having the ’473 patent declared invalid, Mentor’s disclaimer might prevent Quickturn from obtaining a refund of its purchase price in the event Mentor successfully asserted invalidity. Such a result would not reflect the reasonable expectations of the parties when they negotiated the sales agreement. The district court properly determined that Mentor is estopped from challenging the validity of the ’473 patent. IV Assignor estoppel also prevents parties in privity with an estopped assignor from challenging the validity of the patent. See Diamond Scientific, 848 F.2d at 1224. Whether two parties are in privity depends on the nature of their relationship in light of the alleged infringement. “The closer that relationship, the more the equities will favor applying the doctrine” of assignor estoppel. Shamrock Techs., 903 F.2d" }, { "docid": "15822662", "title": "", "text": "patent (or patent application) from later contending that what was assigned is a nullity. The estoppel also operates to bar other parties in privity with the assignor, such as a corporation founded by the assignor.” Id. As the Court explained, the doctrine recognizes “the implicit representation by the assignor that the patent rights that he is assigning (presumably for value) are not worthless .... To allow the assignor to make that representation at the time of the assignment (to his advantage) and later to repudiate it (again to his advantage) could work an injustice against the assignee.” Id. After concluding that assignor estoppel remained a valid defense, the Federal Circuit stated that an analysis of the doctrine “must be concerned mainly with the balance of equities between the parties.” Id. at 1225. The Federal Circuit, in Shamrock Technologies, Inc. v. Medical Sterilization, Inc., 903 F.2d 789, 793 (Fed.Cir.1990), reiterated that “[ajssignor estoppel is an equitable doctrine ... that is mainly concerned with the balance of the equities between the parties ... [and t]hose in privity with the assignor partake of that balance; hence, extension of the estoppel to those in privity is justified.” The Shamrock Court went on to explain that, “[pjrivity, like the doctrine of assignor estoppel itself, is determined upon a balance of equities.” Id. In other words, “[i]f an inventor assigns his invention to his employer company A and leaves to join company B, whether company B is in privity and thus bound by the doctrine will depend on the equities dictated by the relationship between the inventor and company B in light of the act of infringement.” Id. at 793. “The closer that relationship, the more the equities will favor applying the doctrine to company B.” Id. In the case at bar, Mao and/or Zuk are listed as inventors on each of the 723, ’459, 700, ’347, and ’612 patents. (See ’723 patent listing Mao and Zuk as inventors; ’459 patent listing Mao as an inventor; ’700 patent listing Mao as an inventor; ’347 patent listing Mao as an inventor; and ’612 patent listing Mao as" } ]

[ { "docid": "842442", "title": "", "text": "quota relief frequently has been imposed against public agencies that have engaged in employment practices shown to be violative of the Fourteenth Amendment. See also United States v. Montgomery Bd. of Educ., 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969); Franks v. Bowman Transp. Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). Thus there is ample precedent for the proposition that temporary, short-range preferences for minorities may be mandated by the duty to eradicate the continuing effects of. past discrimination. As the Court of Appeals for the Fifth Circuit has stated, “By mandating the hiring of those who have been the object of discrimination, quota relief promptly operates to change the outward and visible signs of yesterday’s racial distinctions and thus, to provide an impetus to the process of dismantling the barriers, psychological or otherwise, erected by past practices. It is a temporary remedy that seeks to spend itself as promptly as it can by creating a climate in which objective, neutral employment criteria can successfully operate to select public employees solely on the basis of job-related merit. For once an environment where merit can prevail exists, equality of access satisfies the demand of the Constitution.” NAACP v. Allen, supra, 493 F.2d at 621. In this case we are not dealing with a situation of court-imposed affirmative relief pursuant to a finding of discrimination against women and minorities in employment practices. Rather, plaintiffs would have the Court find discrimination against the so-called “majority” employees of the Kansas City Fire Department who allegedly have been injured by the operation of the Fire Department’s voluntary attempt to remedy the “imbalances (which) may have developed in the utilization of minorities and women.” Code of General Ordinances of Kansas City, Missouri, No. 42406, supra. This Court is told, as was the Fifth Circuit Court of Appeals in NAACP v. Allen, supra, that the affirmative action plan compels a violation of the Fourteenth Amendment rights of eligible white employees by discriminating in favor of less qualified minority individuals, whose examination scores and seniority resulted in a lower ranking on the" } ]

[ { "docid": "11321022", "title": "", "text": "district court made insufficient findings on the Agency’s affirmative action plan to justify its rejection of the plan. Title VII embodies a broad legal principle of anti-discrimination. In Weber, the Supreme Court held that Title VII does not necessarily preclude voluntary, private affirmative action, and thus carved out a very narrow exception to that principle: it rejects random discrimination against various minorities or whites or males, but allows planned discrimination under very limited circumstances. See 443 U.S. at 200, 99 S.Ct. at 2725. In La Riviere, we did not address the constitutional issue but applied Weber to a voluntary, public affirmative action plan. In each case the result is to sanction some discrimination not otherwise legally conscionable — because based on race or sex — when it aims to remedy purposeful past discrimination. Courts, however, must be careful to “ensure that new forms of invidious discrimination are not approved in the guise of remedial affirmative action.” Setser v. Novack Investment Co., 657 F.2d 962, 968 (8th Cir.), cert. denied, 454 U.S. 1064, 102 S.Ct. 615, 70 L.Ed.2d 601 (1981). The bona fides of affirmative action plans must be evaluated carefully if the employer asserts he has treated plaintiff pursuant to one, because Title VII compels us to consider the rights of individuals, not groups. See, e.g., Connecticut v. Teal, 457 U.S. 440, 453-54, 102 S.Ct. 2525, 2534, 73 L.Ed.2d 130 (1982); City of Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702, 708, 98 S.Ct. 1370, 1375, 55 L.Ed.2d 657 (1978). Two overarching questions guide the analysis of plans: “(1) when is it permissible to initiate an affirmative action plan, and (2) what methods may be employed to prefer one race [or sex] over another.” Setser, 657 F.2d at 967 n. 4. Although Weber did not exclusively “define in detail the line of demarcation between permissible and impermissible affirmative action plans,” 443 U.S. at 208, 99 S.Ct. at 2729-30, it identified at least four factors which La Riviere adapted to public plans. The plan: (1) must aim at breaking down historic patterns of racial or social segregation" }, { "docid": "10859534", "title": "", "text": "which are denied to men where the purpose of such gender-based distinction was “the permissible one of redressing our society’s longstanding disparate treatment of women.” Califano v. Goldfarb, 430 U.S. 199, 209 n.8, 97 S.Ct. 1021, 1028 n.8, 51 L.Ed.2d 270 (1977). The concept of affirmative action to secure greater participation in public and private programs is not new. As already noted, DOT has had an affirmative action program for a number of years. In March of 1980, DOT reported that its affirmative action efforts over the preceding five years had resulted in a 600 per cent increase in MBE participation in the highway programs of the states across the country, which it expressed as being “a most encouraging trend.” This suit does not involve any challenge to such efforts. The issue before this Court is a narrow one. The Supreme Court in its recent decision in Fullilove v. Klutznick, supra, faced the question whether a provision of the Public Works Employment Act of 1977 requiring that 10 per cent of all federal funds expended for public work projects be “set aside” for minority business enterprises violated the Equal Protection requirements under the Fifth Amendment to the Constitution and Title VI of the Civil Rights Act. While the Supreme Court did not agree on a majority opinion, six of the Justices concurred in the judgment to uphold the authority of Congress to require a “set aside” for minority businesses under the Public Works Employment Act. If the “set aside” or goals or quotas prescribed in this case by DOT-at least to the extent that they applied to racial minorities-had been enacted by Congress, this Court would feel bound by Fullilove and would hold such goals to be consistent with the Constitution. The narrow question here is whether such regulations requiring different treatment based on the race and sex of the contractors are consistent with the Constitution where Congress has not commanded such disparate treatment but rather such different treatment is required by a regulation imposed by an agency of the government. In Fullilove, at least two Justices made it clear" }, { "docid": "8820935", "title": "", "text": "establishment of quotas favoring women. His Opinion stated: Because of the disparate results of the application of veteran’s preference to both men and women, we believe that we commit no violence to the principle of equality of treatment, and no sacrilege against the dogma of veteran's preference by treating the male and female applicants separately with respect to this aspect of the examination results. In the application of any hiring quota the female applicants’ scores, with veteran’s preference included, shall be considered separately from those of the males. 404 F.Supp at 1028. Several years after Judge Weber imposed this injunction, the Supreme Court ruled in a case based upon 42 U.S.C. § 1983 that laws operating to the advantage of males by giving veterans preferences for public employment are not violative of equal protection. Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). The Weber injunction now, therefore, impermissibly interferes with the operation of a valid veterans preference law according to Feeney. B. Racial Discrimination We are left, then, with the claim of racial discrimination under § 1981. We start with an examination of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), a case brought under 42 U.S.C. § 1981 alleging that the District of Columbia’s police hiring procedures, including the use of a written examination, were racially discriminatory. At issue in Davis was the use of “Test 21,” a civil service examination “ ‘designed to test verbal ability, vocabulary, reading and comprehension.’ ” 426 U.S. at 235, 96 S.Ct. at 2045 (quoting 348 F.Supp. 15, 16 (D.C. 1972)). The District Court found that “ ‘(a) The number of black police officers, while substantial, is not proportionate to the population mix of the city, (b) A higher percentage of blacks fail the Test than whites, (c) The Test has not been validated to establish its reliability for measuring subsequent job performance.’ ” Id. The District Court did find, though, that the test had a “direct relationship to recruiting.” 426 U.S. at 236, 96 S.Ct. at 2045-46 (quoting 348" }, { "docid": "22634699", "title": "", "text": "Staub v. Proctor Hosp., — U.S. -, 131 S.Ct. 1186, 1194, 179 L.Ed.2d 144 (2011) (if a non-decisionmaker performs an act motivated by a discriminatory bias that is intended to cause, and that does proximately cause, an adverse employment action, then the employer has cat’s-paw liability). Second, assuming Commissioner Field was a decisionmaker, Torgerson and Mundell seek to extrapolate gender and national-origin animus from a statement opposing mandatory hiring of women and minorities. Commissioner Field’s opinion cannot demonstrate a discriminatory animus because Congress explicitly commands that Title VII shall not be interpreted to require preferential treatment because of sex or national origin on account of an imbalance in the number or percent of those employed, compared to the relevant number or percent in the community. See 42 U.S.C. § 2000e-2(j). See also Ricci, 129 S.Ct. at 2675 (disapproving “a de facto quota system” and the discarding of firefighter test results with the intent of obtaining the employer’s preferred racial balance, because the purpose of Title VII “is to promote hiring on the basis of job qualifications, rather than on the basis of race or color” (quoting Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971))). As the Supreme Court put it: Title VII prohibits all discrimination in employment based upon race, sex, and national origin. “The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and ... neutral employment and personnel decisions.” McDonnell Douglas, supra, at 801 [93 S.Ct. 1817]. Title VII, however, does not demand that an employer give preferential treatment to minorities or women. 42 U.S.C. § 2000e-2(j). See Steelworkers v. Weber, 443 U.S. 193, 205-06 [99 S.Ct. 2721, 61 L.Ed.2d 480] (1979). The statute was not intended to “diminish traditional management prerogatives.” Id., at 207 [99 S.Ct. 2721], It does not require the employer to restructure his employment practices to maximize the number of minorities and women hired. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577-78 [98 S.Ct. 2943, 57 L.Ed.2d 957] (1978). Texas Dep’t of Cmty. Affairs v. Burdine, 450" }, { "docid": "22163663", "title": "", "text": "it requires no differential treatment on the basis of race.”) (emphasis added). Because appellants misconstrue the County’s race-conscious efforts to redesign its entrance exam as a “racial classification,” appellants unpersuasively cite to numerous “reverse discrimination” cases. In particular, appellants heavily rely on widely known affirmative action cases such as Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), and Adarand. We find these cases distinguishable from the case at bar. Our reading of those cases suggests that they are concerned with select affirmative action tools, such as quota systems, set-aside programs, and differential scoring cutoffs, which utilize express racial classifications and which prevent non-minorities from competing for specific slots or contracts. For example, in Bakke, the Supreme Court invalidated a medical school admissions program where 16 slots out of 100 were reserved for minority and disadvantaged applicants. The Court rejected the use of this quota system because non-minority candidates were prevented from competing for a specific percentage of seats in the incoming class. See Bakke, 438 U.S. at 319-20, 98 S.Ct. at 2763. Likewise, in its decision in Croson, the Court rejected a local set-aside program which required prime contractors awarded city construction contracts to subcontract at least 30% of the contract with minority businesses. See Croson, 488 U.S. at 477, 511, 109 S.Ct. at 713, 731. Regardless of the “benign” intent behind such minority set-aside programs, the Court clarified that the use of an express racial classification, whether benign or invidious, would be subject to strict scrutiny. See id. at 493-94, 109 S.Ct. at 721-22. The Court reasoned that this result was warranted even for benign racial classifications because the set-aside program “denie[d] certain citizens the opportunity to compete for a fixed percentage of public contracts based solely upon their race.” Id. at 493, 109 S.Ct. at 721; see also Adarand, 515 U.S. at 227-36, 115 S.Ct. at 2112-17 (holding that facial racial classifications imposed by the federal government should also be subject to" }, { "docid": "8820934", "title": "", "text": "question is whether the City’s hiring method, standing alone, is unconstitutionally discriminatory, thereby justifying continued court intervention. A. Sex Discrimination Deciding whether the City’s hiring procedures unconstitutionally discriminate on the basis of gender requires little discussion. It is clear that sex discrimination in employment is not cognizable under § 1981. DeGraffenreid v. General Motors Assembly Div., 558 F.2d 480, 486, n. 2 (8th Cir.1977); Croker v. Boeing Co., 662 F.2d 975, 1000 (3d Cir.1981) (Aldisert, J., concurring and dissenting); Montano v. Amstar Corp., 502 F.Supp. 295, 297 (E.D.Pa.1980). While Title VII addresses sex discrimination in employment, this action was not brought under that statute. But even if sex discrimination were cognizable under § 1981, there has been a significant change in the law since 1975 when Judge Weber issued the injunction. The disparate impact of the City’s hiring practices upon women derives in large part from the application of veterans preferences. This was as true at the time of Judge Weber’s injunction as it is today, and appears to have been the basis for his establishment of quotas favoring women. His Opinion stated: Because of the disparate results of the application of veteran’s preference to both men and women, we believe that we commit no violence to the principle of equality of treatment, and no sacrilege against the dogma of veteran's preference by treating the male and female applicants separately with respect to this aspect of the examination results. In the application of any hiring quota the female applicants’ scores, with veteran’s preference included, shall be considered separately from those of the males. 404 F.Supp at 1028. Several years after Judge Weber imposed this injunction, the Supreme Court ruled in a case based upon 42 U.S.C. § 1983 that laws operating to the advantage of males by giving veterans preferences for public employment are not violative of equal protection. Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). The Weber injunction now, therefore, impermissibly interferes with the operation of a valid veterans preference law according to Feeney. B. Racial Discrimination We are left," }, { "docid": "1040981", "title": "", "text": "(Blackmun, J., dissenting); EEOC v. American Telephone & Telegraph Co:, 556 F.2d 167, 174-77, & n. 5 (3d Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3145, 57 L.Ed.2d 1161 (1978); Contractors Association v. Secretary of Labor, 442 F.2d 159, 172-74 (3d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971). As the Supreme Court has instructed in United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the language of Title VII must be read against the broad remedial purposes envisioned by Congress in passing the Act. The Court there upheld an employer’s voluntary use of a racial promotional quota as a reasonable measure “to abolish traditional patterns of racial segregation and hierarchy.” 443 U.S. at 204, 99 S.Ct. at 2727. It construed Title VII as leaving employers and unions in the private sector “free to take such race-conscious steps to eliminate manifest racial imbalanc es in traditionally segregated job categories.” Id. at 197, 99 S.Ct. at 2724. This court adopted a similar view of Congressional intent in the Contractors Association case, in which we upheld an executive plan to favor minority contractors. We stated, To read § 703(a) in the manner suggested by the plaintiffs we would have to attribute to Congress the intention to freeze the status quo. and to foreclose remedial action under other authority designed to overcome existing evils. We discern no such intention either from the language of the statute or from its legislative history. 442 F.2d at 173. A similar approach is appropriate for classifications designed to achieve faculty integration for the benefit of the students of a segregated school system. Congress enacted Title VII, and in 1972 expanded its coverage to include employees of previously exempted state educational institutions, at a time when there was national focus on the need to continue efforts to desegregate educational facilities. See generally, United States Commission on Civil Rights, Fulfilling the Letter and Spirit of the Law, Desegregation of the Nation’s Public Schools, 122-28 (1976) (reviewing cases and the continuing need for integration of staff). Race-conscious faculty reassignment" }, { "docid": "6165095", "title": "", "text": "to affect the future.” Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 1848, 90 L.Ed.2d 260 (1986) (plurality opinion). A plan employing racial distinctions must be temporary in nature with a defined goal as its termination point. See, e.g., Johnson v. Transportation Agency, — U.S. -, 107 S.Ct. 1442, 1456, 94 L.Ed.2d 615 (1987); Paradise, 107 S.Ct. at 1070; Sheet Metal Workers v. EEOC, 478 U.S. 421, 106 S.Ct. 3019, 3053, 92 L.Ed.2d 344 (1986) (fifth amendment equal protection); Fullilove v. Klutznick, 448 U.S. 448, 489, 100 S.Ct. 2758, 2780, 65 L.Ed.2d 902 (1980); Weber, 443 U.S. at 208-09, 99 S.Ct. at 2729-30; see also Jaimes v. Lucas Metropolitan Housing Auth., 833 F.2d 1203, 1208 (6th Cir.1987) (stating that affirmative integration plan for public housing authority “should end upon the [district] court’s finding that its goal has been accomplished”). More over, we observe that societal discrimination alone seems “insufficient and over expansive” as the basis for adopting so-called “benign” practices with discriminatory effects “that work against innocent people,” Wygant, 106 S.Ct. at 1848, in the drastic and burdensome way that rigid racial quotas do. Furthermore, the use of quotas generally should be based on some history of racial discrimination, see id. at 1847, or imbalance, see Johnson, 107 S.Ct. at 1452-53, within the entity seeking to employ them. Finally, measures designed to increase or ensure minority participation, such as “access” quotas, see Burney, 551 F.Supp. at 763, have generally been upheld, see, e.g., Johnson, 107 S.Ct. at 1456-57; Paradise, 107 S.Ct. at 1070-71; Weber, 443 U.S. at 208, 99 S.Ct. at 2729. However, programs designed to maintain integration by limiting minority participation, such as ceiling quotas, see Burney, 551 F.Supp. at 763, are of doubtful validity, see Jaimes, 833 F.2d at 1207 (invalidating public housing authority integration plan to the extent it acts as strict racial quota), because they “ ‘single[ ] out those least well represented in the political process to bear the brunt of a benign program,’ ” Fullilove, 448 U.S. at 519, 100 S.Ct. at 2796 (Marshall, J., concurring) (quoting Regents v. Bakke," }, { "docid": "18816088", "title": "", "text": "classifications disadvantaging nonminority groups in order to remedy present effects of past discrimination against minorities are to be upheld if they are substantially related to the achievement of those remedial objectives. Id. at 519, 100 S.Ct. at 2795. Justice Powell issued a separate concurring opinion that applied the analysis set forth in his Bakke opinion. He reasoned that Congress had made sufficient findings of past discrimination in the construction industry to support a compelling government interest in redressing that discrimination. With respect to the means employed to achieve that interest, Justice Powell concluded that Congress is endowed with a measure of discretion in choosing a remedy, as long as the relief chosen is “equitable and reasonably necessary to the redress of identified discrimination.” Id. at 510, 100 S.Ct. at 2791. He found that the ten percent set-aside provision was a prompt method of offering much needed experience to minority firms, temporary in nature, closely related to the percentage of minority contractors, and relatively limited in effect on third parties. Consequently, he voted to uphold the provision. These three Supreme Court cases do little to advance defendants’ cause. There are significant distinctions between the plan at issue here and those challenged in Bakke, Weber, and Fullilove. Each of those cases involved the validity of a “floor” or “access” quota in order to increase or ensure minority enrollment or participation. In contrast, the instant case involves the use of a “ceiling” or “integration” quota, which is used to limit minority enrollment and participation. There are troubling aspects of ceiling quotas that do not arise in the context of access quotas. First, whereas the affirmative action plans in Bakke, Weber, and Fullilove achieved their goals by infringing to some extent on the interests of white persons, the integration maintenance plan at issue here infringes on the interests of substantial numbers of black individuals. Justice Brennan viewed “benign quotas” only as those that prefer individual minorities at the expense of whites in order to compensate for societal discrimination. Bakke, 438 U.S. at 361-62, 98 S.Ct. at 2784 (joint separate opinion). Second, to the extent" }, { "docid": "8733280", "title": "", "text": "a reasonable voluntary response ‘whether or not a court, on these facts, could order the same step as a remedy’... Under Weber, the district court’s holding that ‘quota relief, when fashioned by the employer without the assistance and direction of the court, is not permitted ... ’ ... cannot stand as a matter of law. 608 F.2d at 689-90. “Having thus held on the Title VII claim, the Young court applied the same principle to the Constitutional challenge. “It was also error to require that there be judicial determination of past discrimination for a state to undertake a race-conscious remedy, as stated by the district court. This requirement would be ‘self-defeating’ and would ‘severely undermine’ voluntary remedial efforts. [Citing Regents of the University of California v. Bakke, 438 U.S. 265, 364, 98 S.Ct. 2733, 2785, 57 L.Ed.2d 750 (1978) ]. “[1] Thus, it appears that plaintiffs’ contention that the affirmative action plan at issue here cannot stand because there has been no prior judicial determination that the defendants engaged in racial discrimination, is without merit. Plaintiffs’ motion for summary judgment on this ground is denied. “b. Constitutionality of Affirmative Action Plan “Having determined that a judicial finding that defendants engaged in race discrimination is not a prerequisite to adoption of the affirmative action at issue here, the court must still determine whether the plan is one permitted by the Constitution. “As an initial matter, there must be sqme evidence that minority teachers have not enjoyed the same representation on the faculty of the Jackson Public Schools as have white teachers. Justice Brennan, for the majority in Weber, adhered closely to the facts of that case and framed this requirement in terms of ‘conspicuous racial imbalance in traditionally segregated job categories.’ 443 U.S. at 209, 99 S.Ct. at 2730. Justice Blackmun, in concurrence in Weber, held out for an ‘arguable violation’ standard. In other words, employers and unions which had committed ‘arguable violations’ of Title VII would be free to adopt voluntary affirmative action plans without fear of Title VII liability to whites. “For purposes of the Equal Protection clause of" }, { "docid": "1040980", "title": "", "text": "subsection (a)(1). It is clear that Title VII prohibits discrimination against both whites and blacks, see McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 278-85, 96 S.Ct. 2574, 2577-2581, 49 L.Ed.2d 493 (1976), and protects the individual from discrimination limiting employment opportunities even if the individual’s group has not suffered from discrimination on the “bottom line”. See Connecticut v. Teal, 457 U.S. 440, 451, 453-56, 102 S.Ct. 2525, 2533, 2534-36 (1982). “The principal focus of the statute is the protection of the individual employee, rather than the protection of the minority group as a whole.” Id. at 453-54, 102 S.Ct. at 2531-35. Based on these precepts, we conclude that policies such as the School District’s come within the literal language of Title VII. The Courts of Appeals, including this court, have been unanimous in concluding that Title VII, like,the equal protection clause, does not forbid race-conscious remedial action. See Firefighters Local Union No. 1784 v. Stotts, — U.S.-,-& n. 10, 104 S.Ct. 2576, 2587 & n. 10, 81 L.Ed.2d 483 (1984) (describing cases) (Blackmun, J., dissenting); EEOC v. American Telephone & Telegraph Co:, 556 F.2d 167, 174-77, & n. 5 (3d Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3145, 57 L.Ed.2d 1161 (1978); Contractors Association v. Secretary of Labor, 442 F.2d 159, 172-74 (3d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971). As the Supreme Court has instructed in United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the language of Title VII must be read against the broad remedial purposes envisioned by Congress in passing the Act. The Court there upheld an employer’s voluntary use of a racial promotional quota as a reasonable measure “to abolish traditional patterns of racial segregation and hierarchy.” 443 U.S. at 204, 99 S.Ct. at 2727. It construed Title VII as leaving employers and unions in the private sector “free to take such race-conscious steps to eliminate manifest racial imbalanc es in traditionally segregated job categories.” Id. at 197, 99 S.Ct. at 2724. This court adopted a similar view of Congressional" }, { "docid": "22151429", "title": "", "text": "se unconstitutional. See 614 F.2d at 1335-1338. I do not believe that any of the parties involved seriously denies that past discrimination based on race has occurred and that the effects and results of that discrimination continue today. In fact, counsel for the City stated during the December 13, 1976, hearing that “[tjhere has been discrimination based upon race and [the] employment practices of the City of Miami” and the City “has a desire to correct the present effect of that past discrimination which it admits.” The Supreme Court’s most recent analysis of the use of hiring goals or quotas by an employer is found in United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). The Supreme Court approved the employer’s voluntary implementation of an affirmative action plan against the challenge of a white employee who claimed to be injured by the plan. Id. at 208, 99 S.Ct. at 2730. That plan utilized quotas which allowed the employer less flexibility than the ones involved in this consent decree. Accordingly, the decree would appear to meet the Supreme Court’s standard that the proposed relief be closely tailored to remedy the effects of past discrimination and not unnecessarily trammel the rights of white workers. Id. The fact that a private employer was involved in Weber does not significantly affect the applicability of the Weber rationale to this case. Furthermore, there was more than ample evidence for the district court to conclude that the proposed relief was a reasonable means to correct past discrimination. The gross statistical disparities between the number of women and minorities on the Miami police force and the number of women and minorities in the Miami work force were sufficient to establish a prima facie case of discrimination. See Phillips v. Joint Legislative Comm., etc., 637 F.2d 1014, 1026 (5th Cir. 1981); United States v. City of Alexandria, supra, 614 F.2d at 1364. It is still an open question whether a judicial determination of past discrimination is required before a district court may approve a voluntary consent decree. See, e. g., Detroit" }, { "docid": "22428109", "title": "", "text": "of our decision is not especially remarkable, having as precedent not a few past efforts by us in the statistical line. Nor is our conclusion that Title VII, despite its language, does not outlaw employment discrimination on grounds of race or sex. We could scarcely conclude otherwise, given the Supreme Court’s determination in Weber that the spirit of Title VII accords with racial discrimination against whites, so long as it is reasonable in degree. Not these determinations, but another, afford today’s opinion its landmark quality. For today’s decision sustains preferential treatment of classes based on race and sex, in the form of hiring and promotion quotas, against constitutional attack on 14th amendment grounds. As the opinion makes plain, the program of deliberate class preference that we here command is to be carried out, not in order to redress wrongs to particular individuals — to accord any given person a rightful place of which he or she has been deprived — or even to redress a discerned historic class discrimination by a particular employer, but to compensate for general societal discrimination in the past. I can ascribe no other meaning to the approving quotation of a portion of Mr. Justice Brennan’s minority opinion in Bakke at p. 1338, supra. The majority cites a plethora of cases for the proposition that there is no “insurmountable barrier to the use of goals or quotas to eradicate the effects of past discrimination.” See p. 1335 supra (footnote omitted and emphasis added). In none of these cases, however, has any circuit court approved the imposition of racial quotas based on a statistical disparity alone, as the majority does here. The majority correctly points out that this court, sitting en banc, approved racial quotas in Morrow v. Crisler, 491 F.2d 1053 (5th Cir.) (en banc), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974). We did so, however, only upon the basis of a finding by the trial court that the Mississippi Highway Patrol had “historically engaged in unconstitutional discrimination in the employment of patrolmen,” id. at 1055, and that the patrol’s existing" }, { "docid": "18341963", "title": "", "text": "282 (1974); cf. Lucas v. Wisconsin Electric Power Co., 466 F.2d 638, 656 (7th Cir. 1972), cert. denied, 409 U.S. 1114, 93 S.Ct. 928, 34 L.Ed.2d 696 (1973). Thus, the “close nexus” test applied to the due process claim in Jackson is inapplicable to government involvement in racial discrimination practiced by private parties. The rationale for the double standard derives from the historic relationship of the equal protection clause and race and from the fact that where racial discrimination is concerned, even governmental inaction takes on the appearance of affirmative approval and support. Lefcourt v. Legal Aid Society, 445 F.2d 1150, 1155 n.6 (2d Cir. 1971). . A word must be said about “quotas.” Some have taken great semantic strides to avoid the word “quota.” This Court is not so wary despite the fact that in the past quotas have been used by those on the “in” to keep out the “outs.” So long as they are benign, quotas may be used to remedy past discrimination. The real current problem with a quota, when applied to some institution like a university or corporation, is not that it names a racial group but that it undermines normal admission, hiring and advancement practices and it threatens the system of expectations about entrance and advancement held by those in and about the institution. See Weber v. Kaiser Aluminum & Chem. Corp., 563 F.2d 216, 229-234 (Wisdom, dissenting); Flanagan v. President and Directors of Georgetown College, 417 F.Supp. 377 (D.D.C.1976). Quotas are much more disruptive than goals because they seem to require the substitution of whatever notions of merit prevail at a particular institution with a non-meritorious, indeed suspect, criterion. We need not address that issue here for this case does not involve the disruption of an institution. Nor does it involve divesting those with reasonable expectations for the benefit of others. In the market-place, no such expectations become firm and there is no accrued right to a government contract, especially to funds only vf-'-finriy made available on an emergency basis. No on-going private institutional arrangements are being disrupted by the use of this" }, { "docid": "18766625", "title": "", "text": "this case from Johnson, the majority distorts not only the facts of this case but also the law as enunciated by the Supreme Court. The majority implies that unless an affirmative action plan uses race only as one of numerous factors when evaluating qualified candidates — as a “plus” factor — the plan offends Title VII. See Maj.Op. at 79. Of course, this is clearly not true; contrary to the majority's intimations, Title VII does not forbid “quota” plans. In Weber, the seminal Title VII affirmative action case which informed and guided the Court’s decision in Johnson, the Court sustained a quota plan. See Weber, supra (upholding plan requiring that blacks constitute 50% of new trainees). Indeed, the quota plan at issue in Weber established a minority set aside which far exceeded the percentage of blacks in the local labor force (39%). See Weber, 443 U.S. at 208, 99 S.Ct. at 2729-30. Not only did the Johnson Court not outlaw quota plans, but it explained that use of a quota system would only affect whether the plan needed an explicit end date. See Johnson, 107 S.Ct. at 1456 (“Express assurance that a program is only temporary may be necessary if the program actually sets aside positions according to specific numbers.”). See also Ledoux, supra, at 1302. The Plan at issue in this case was indeed temporary; it was to last for 18 months, a factor which the District Court correctly interpreted as supporting the Plan’s lawfulness. See Hammon v. Barry, 606 F.Supp. 1082, 1093 (D.D.C.1985). Despite the majority’s attempt to limit Johnson’s damage to the Title VII affirmative action jurisprudence espoused in its prior opinion, the majority’s construction of the law falls like a house of cards under the weight of the Supreme Court’s holding. The majority contends that Johnson squares with its previous declaration that Title VII requires a “predicate of discrimination” before an employer may adopt an affirmative action plan. See Maj.Op. at 80-81. Indeed, the majority asserts that the Johnson Court agreed that “evidence of the effects of [an employer’s] past or current discrimination is a prerequisite" }, { "docid": "18816089", "title": "", "text": "provision. These three Supreme Court cases do little to advance defendants’ cause. There are significant distinctions between the plan at issue here and those challenged in Bakke, Weber, and Fullilove. Each of those cases involved the validity of a “floor” or “access” quota in order to increase or ensure minority enrollment or participation. In contrast, the instant case involves the use of a “ceiling” or “integration” quota, which is used to limit minority enrollment and participation. There are troubling aspects of ceiling quotas that do not arise in the context of access quotas. First, whereas the affirmative action plans in Bakke, Weber, and Fullilove achieved their goals by infringing to some extent on the interests of white persons, the integration maintenance plan at issue here infringes on the interests of substantial numbers of black individuals. Justice Brennan viewed “benign quotas” only as those that prefer individual minorities at the expense of whites in order to compensate for societal discrimination. Bakke, 438 U.S. at 361-62, 98 S.Ct. at 2784 (joint separate opinion). Second, to the extent that any of the Justices have stated or implied that racial preferences and exclusion are permissible, they have done so only where those preferences and exclusions serve remedial purposes after a finding by a governmental body (competent to make such a finding) that prior discrimination existed. To the extent that the defendants’ tenant selection and assignment plan acts as a floor to increase minority access to predominantly white housing projects, it serves a remedial purpose. However, when it operates as a ceiling quota for integration maintenance purposes, it has gone beyond its remedial purpose. In Weber, the Supreme Court emphasized the fact that the affirmative action plan at issue there was “a temporary measure; it [was] not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance.” 443 U.S. at 208, 99 S.Ct. at 2729. And, as noted earlier, the Supreme Court has made clear that at least in the school systems, racial balance is not constitutionally required and once desegregation has been accomplished, the government has no further duty to maintain" }, { "docid": "5474078", "title": "", "text": "of blacks in the local labor forces. Under the plan, on-the-job-training programs were established to help plants meet the goal, and 50% of the openings in the training programs were reserved for blacks. Several white production workers, who were rejected from the training program because of the quota, instituted a Title VII class action and secured an injunction against the implementation of the program. The Supreme Court reversed the decision enjoining the program but specifically refused to “define in detail the demarcation between permissible and impermissible affirmative action plans.” The court limited its holding to finding that the quota fell “on the permissible side of the line.” 99 S.Ct. at 2730. Despite their reluctance to dictate the precise limits on affirmative relief, however, the Court in Weber did illuminate the field to a certain degree by disclosing the analysis it followed in reaching the decision to approve the quota in that case. Before issuing its approval, the Court carefully reviewed the purpose and duration of the plan, as well as the plan's effect on third parties. The Court’s opinion shows that there must be careful analysis of the. context of each individual case before imposition of numerical relief. While the quota fell on the “permissible side of the line” on the facts in Weber, the holding in that case is far short of giving a carte blanche to all similar quota systems. In Fullilove v. Klutznick, the Supreme Court again focused its attention on the need for careful analysis of all surrounding circumstances before implementation of numerical relief. In that case, the Court upheld the power of Congress to approve a provision of the Public Works Employment Act of 1977, which required that at least 10% of federal grants for local public works projects be used to procure services provided by minority groups. While the Court approved the quota, Justice Burger cautioned that “[a]ny preference based upon racial or ethnic criteria must necessarily receive a most searching examination.” 100 S.Ct. at 2781. Justice Powell agreed with this strict standard. In his concurring opinion he listed various factors that should be" }, { "docid": "18816090", "title": "", "text": "that any of the Justices have stated or implied that racial preferences and exclusion are permissible, they have done so only where those preferences and exclusions serve remedial purposes after a finding by a governmental body (competent to make such a finding) that prior discrimination existed. To the extent that the defendants’ tenant selection and assignment plan acts as a floor to increase minority access to predominantly white housing projects, it serves a remedial purpose. However, when it operates as a ceiling quota for integration maintenance purposes, it has gone beyond its remedial purpose. In Weber, the Supreme Court emphasized the fact that the affirmative action plan at issue there was “a temporary measure; it [was] not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance.” 443 U.S. at 208, 99 S.Ct. at 2729. And, as noted earlier, the Supreme Court has made clear that at least in the school systems, racial balance is not constitutionally required and once desegregation has been accomplished, the government has no further duty to maintain integration. Washington v. Seattle School District No. 1,-U.S. at-, 102 S.Ct. at 3205. Thus, the various Supreme Court decisions approving of the use of remedial quotas to ensure minority participation are not compelling precedent for the Housing Authority’s use of a ceiling quota that would have the effect of limiting minority participation. In addition, the Supreme Court decisions upon which defendants rely, in fact, contain a good deal of dicta indicating that the Court might not be sympathetic to the use of benign ceiling quotas. For example, both the Powell and Brennan-group opinions in Bakke suggest that the Constitution would not permit an affirmative action program that places a burden on an individual in order to advance the societal interests of that person’s ethnic or racial group. 438 U.S. at 298, 361, 98 S.Ct. at 2752, 2784. Justice Powell, emphasizing the personal or individual nature of constitutional rights, stated that “[i]f it is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background because such distinctions impinge upon" }, { "docid": "22428095", "title": "", "text": "its intent that Title VII suits be handled by the courts as expeditiously as possible. See 42 U.S.C.A. §§ 2000e-5(f)(2), 2000e-6(b) (West 1974). . In Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 165, 50 L.Ed.2d 140 (1976), the Sixth Circuit stated the principle well: Settlement agreements should ... be upheld whenever equitable and policy considerations so permit. By such agreements are the burdens of trial spared to the parties, to other litigants waiting their turn before overburdened courts, and to the citizens whose taxes support the latter. An amicable compromise provides the more speedy and reasonable remedy for the dispute. . We refuse to engage in any semantic dispute over the difference in meaning between “goals” and “targets” on the one hand and “quotas” on the other. We will gladly adopt any word proposed, so long as the thrust of affirmative action is not stayed. . United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) upheld affirmative action in the context of a collective bargaining agreement with a private employer. Although that narrowly-drafted opinion is not directly relevant to the constitutional issue posed in the instant case because the defendant employers are municipalities, it does buttress our firm belief that affirmative action is consistent with the public policy of this country. Weber does establish that §§ 703(a) and (d) of Title VII, 42 U.S.C. § 2000e-2(a) and (d), do not bar the relief denied below. Although the defendants here were municipalities, unlike in Weber, it is now well-settled that Title VII standards do not vary depending on whether the defendant is a private or public sector employer. See Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Scott v. City of Anniston, Ala., 597 F.2d 897 (5th Cir. 1979); United States v. City of Chicago, 573 F.2d 416 (7th Cir. 1978); Firefighters Institute for Racial Equality v. City of St. Louis, 549 F.2d 506 (8th Cir.), cert. denied, 434 U.S. 819, 98 S.Ct. 60, 54 L.Ed.2d 76" }, { "docid": "6854352", "title": "", "text": "459 F.2d 725 (1st Cir. 1972) (hiring ratios); Carter v. Gallagher, 452 F.2d 315, 330-31 (8th Cir.) (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972) (approved a reasonable ratio for minority persons for a limited period of time or until there is a fair approximation of minority representation consistent with the population mix in the area). Racial quotas have also been upheld when incorporated in plans to implement equal employment opportunities in federally funded construction. Southern Ill. Builders Ass’n v. Ogilvie, 471 F.2d 680 (7th Cir. 1972) (Ogilvie plan; the requirement of affirmative action imports more than the negative obligation not to discriminate); Contractors Ass’n of E. Pa. v. Secretary of Labor, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971) (Philadelphia plan); Joyce v. McCrane, 320 F.Supp. 1284 (D.N.J. 1970) (Newark plan). See also Associated Gen. Contractors of Mass. v. Altshuler, 490 F.2d 9 (1st Cir. 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974) (state funded construction project). Despite what appears to be an overwhelming acceptance of the use of minority quotas, a few appellate panels have refused to order such relief. In Weber v. Kaiser Aluminum & Chem. Corp., 563 F.2d 216 (5th Cir. 1977), the Fifth Circuit found that the employer had not been guilty of any discriminatory hiring or promotion at the plant involved in the case. The court held that “[i]n the absence of prior discrimination a racial quota loses its character as an equitable remedy and must be banned as an unlawful racial preference prohibited by Title VII, § 703(a) and (d).” Id. at 224 (emphasis in original). The court used the familiar “rightful place” analysis and refused to allow preferential treatment to correct past societal discrimination. In Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973), the court rejected racial hiring quotas because effective relief could be granted without resort to quotas. Id. at 1136 (adopting the lower court’s discussion in Harper v. Mayor and City Council of Baltimore, 359 F.Supp. 1187, 1213-15 (D.Md." } ]

[ { "docid": "8384986", "title": "", "text": "did not involve rollovers, but rather collisions. The Mazda accident involved a Mazda truck and not a Ford Explorer. Likewise, the jury in the Mazda case found that the driver was not wearing a seatbelt and that the vehicle was not defective. For these reasons, the court finds that these prior accidents were not of a kind which should have served to warn the defendant that the 1996 Ford Explorer’s RCF-67 seatbelt was prone to inertial unlatching in rollovers. Thus, the court holds that plaintiffs may not introduce at trial the submitted prior accidents involving vehicles using the RCF-67 seat-belt. B. Testing Evidence Evidence of accident reconstructions may be relevant and, therefore, comply with the relevancy requirements of Rule 401. To be relevant, an accident reconstruction must be substantially similar to the original accident. Jodoin v. Toyota Motor Corp., 284 F.3d 272, 278 (1st Cir. 2002) (citing Fusco v. Gen. Motors Corp., 11 F.3d 259, 264 (1st Cir.1993)). Perfect identity between the experimental conditions and the actual conditions is not necessary. Robbins v. Whelan, 653 F.2d 47, 49 (1st Cir.1981). Rather, the party seeking to introduce evidence reconstructing an accident must show a “substantial similarity in circumstances” between the reconstruction and the original accident. Jodoin, 284 F.3d at 278 (citing Fusco, 11 F.3d at 264). 1. Testing on Exemplar Ford Explorer Plaintiffs’ expert, Dr. David Ren-froe, conducted various stability tests on an exemplar Ford Explorer. The exemplar vehicle, a 1996 Ford Explorer 4x2 equipped with the same size and model tires as the Explorer in the instance case, was video taped as it was driven through various courses used in the automotive industry to road test vehicles before they go into the market. Plaintiffs seek to introduce the results of these tests to prove that the 1996 Ford Explorer had stability problems. Because plaintiffs’ expert tested an exemplar vehicle identical to the one involved in the instant case, a jury would likely view the testing as a reconstruction of the actual accident. Therefore, the testing must have been conducted under substantially similar conditions to the subject accident in order to" } ]

[ { "docid": "23112591", "title": "", "text": "is admitted by the trial court for the purpose of merely demonstrating a scientific principle, the trial court should instruct the jury that the evidence is received only for that limited purpose and not for the purpose of reconstructing the accident. Gilbert, 989 F.2d at 402; see also Champean, 814 F.2d at 1278 (affirming the district court’s admission of videotaped experiment not conducted under identical circumstances in part because district court remedied the problem by submitting to the jury a written list of differences and similarities). Here, the trial coin! did not give such an instruction. We agree with the Tenth Circuit that the district court's failure to give a limiting instruction is reviewed only for plain error where, as in this case, no request for such an instruction was made by either party. Gilbert, 989 F.2d at 404. Considering this issue in isolation, we find no plain error in failing to give this instruction. However, we do find that the lack of such an instruction increased the danger of the jury misunderstanding and misusing this evidence. . JCI points to various places in the record where Jacobson acknowledged that the exemplar and the accident battery were not identical. This is unavailing. First, there is only a substantial similarity requirement, not a perfect identity requirement. See Champeau, 814 F.2d at 1278. Second, this testimony does not suggest that the minor differences would affect the test results or otherwise skew the data. . We previously have stated that \"[o]rdinarily, dissimilarities affect the weight of the evidence, not its admissibility.\" Champeau, 814 F.2d at 1278 (quotation omitted). However, we made this observation only after noting that there must be substantial similarity between the experimental evidence and the actual accident conditions. This statement, therefore, should be read in context and limited in its application to cases where a district court first finds substantial similarity. After the district court makes a finding of substantial similarity, any remaining issues about whether there are remaining dissimilarities that would affect the impact of this evidence are weight of the evidence determinations to be made by the jury." }, { "docid": "2198658", "title": "", "text": "jury. Fed.R.Evid. 403. In this regard, courts have treated with skepticism evidence that seeks to recreate accidents. See, e.g., Swajian v. Gen. Motors Corp., 916 F.2d 31, 36 (1st Cir.1990) (upholding exclusion of a videotape test which portrayed the consequences of a car’s axle fracturing). They have not, however, excluded all such evidence. See, e.g., Robbins v. Whelan, 653 F.2d 47, 49-50 (1st Cir.1981) (overturning district court’s exclusion of report documenting stopping distances for various vehicles). When a party introduces evidence that attempts to reconstruct an accident, that party must show a “substantial similarity in circumstances” between the reconstruction and the original accident. Fusco v. Gen. Motors Corp., 11 F.3d 259, 264 (1st Cir.1993). In contrast, a party may introduce evidence that simply illustrates general scientific principles. See id. Then, we simply inquire whether the test on which the evidence is premised was “properly conducted.” Id. Differentiating between recreations and illustrations of general scientific principles can be difficult. See McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1402 (8th Cir.1994). Generally, we look to whether the evidence “is sufficiently close in appearance to the original accident to create the risk of misunderstanding by the jury, for it is that risk that gives rise to the special require ment to show similar conditions.” Fusco, 11 F.3d at 264. Here, Mr. Anderson tested a vehicle of the same make and model year as Mrs. Jodoin’s truck. He was also prepared to testify about the rollover propensity of the vehicle based on these tests. Because the two trucks are facially similar, we believe that a jury would likely view the testing as a reconstruction of the actual accident, not as simply illustrative of scientific principles. See McKnight, 36 F.3d at 1402-03 (holding that tests performed on a battery of the same type and make which were used to explain what happened when the subject battery exploded “clearly were not limited to a demonstration of scientific principles in the abstract”). Therefore, the proper test is the substantial similarity standard. See Fusco, 11 F.3d at 264. When reviewing the district court’s application of the substantial" }, { "docid": "23112549", "title": "", "text": "and pumped helium into the battery, creating pressures inside the battery ranging from one pound per square inch (psi) to five psi during the testing. (Id. at 100-101.) Jacobson also plugged the holes in the battery vent caps to obtain some of his measurements. (Id. at 92-93.) The evidence is unrefuted that at the time of the accident, the battery was full of electrolyte fluid, operating at zero psi (because the ear engine was off), and that the vent caps would not have been plugged. We have previously made the following observations about the admissibility of experimental tests in products liability eases: The admissibility of evidence of experimental tests rests largely in the discretion of the trial judge and his decision will not be overturned absent a clear showing of an abuse of discretion. A court may properly admit experimental evidence if the tests were conducted under conditions substantially similar to the actual conditions. Admissibility, however, does not depend on perfect identity between actual and experimental conditions. Champeau v. Fruehauf Corp., 814 F.2d 1271, 1278 (8th Cir.1987) (internal quotations and citations omitted) (emphasis added). This foundational requirement for the admission of experimental evidence is very well established in this circuit and others. See, e.g., Cowens v. Siemens-Elema AB, 837 F.2d 817, 820 (8th Cir.1988); Hale v. Firestone Tire & Rubber Co., 820 F.2d 928, 932 (8th Cir.1987) (Hale II); see also Gilbert v. Cosco Inc., 989 F.2d 399, 402 (10th Cir.1993) (burden is on proponent to demonstrate similarity of circumstances prior to admission of evidence). However, we also have found that where the experimental tests do not purport to recreate the accident, but instead the experiments are used to demonstrate only general scientific principles, the requirement of substantially similar circumstances no longer applies. Champean, 814 F.2d at 1278. JCI first contends that the conditions under which Dr. Jacobson conducted both experiments were not substantially similar to those involved in the accident because the battery Dr. Jacobson used to conduct the experiments was not substantially similar to the battery involved in the explosion. This argument focuses largely on the integrity of" }, { "docid": "2198659", "title": "", "text": "the evidence “is sufficiently close in appearance to the original accident to create the risk of misunderstanding by the jury, for it is that risk that gives rise to the special require ment to show similar conditions.” Fusco, 11 F.3d at 264. Here, Mr. Anderson tested a vehicle of the same make and model year as Mrs. Jodoin’s truck. He was also prepared to testify about the rollover propensity of the vehicle based on these tests. Because the two trucks are facially similar, we believe that a jury would likely view the testing as a reconstruction of the actual accident, not as simply illustrative of scientific principles. See McKnight, 36 F.3d at 1402-03 (holding that tests performed on a battery of the same type and make which were used to explain what happened when the subject battery exploded “clearly were not limited to a demonstration of scientific principles in the abstract”). Therefore, the proper test is the substantial similarity standard. See Fusco, 11 F.3d at 264. When reviewing the district court’s application of the substantial similarity test, we accord substantial deference to the trial court, looking only for an abuse of discretion. See Udemba v. Nicoli, 237 F.3d 8, 14 (1st Cir.2001). While this accords the district court considerable latitude, it is not a toothless standard. See Espeaignnette v. Gene Tierney Go., 43 F.3d 1, 5 (1st Cir.1994). An error of law, underlying the evidentiary ruling, constitutes an abuse of discretion. See Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (“A district court by definition abuses its discretion when it makes an error of law.”); see also United States v. Kayser-Roth Corp., 272 F.3d 89, 100 (1st Cir.2001). Here, the district court never specifically applied the substantial similarity standard. Instead, it announced several times that plaintiffs needed to show that the exemplar vehicle was “virtually identical” to Mrs. Jodoin’s vehicle. “Virtually identical” is an incorrect standard. See Robbins v. Whelan, 653 F.2d 47, 49 (1st Cir.1981) (holding that “perfect identity” is incorrect standard); see also Randall v. Warnaco, Inc., Hirsch-Weis Div., 677 F.2d" }, { "docid": "8384988", "title": "", "text": "be relevant. See Jodoin, 284 F.3d at 279 (holding that testing performed by expert witness on vehicle facially similar to vehicle involved in rollover accident was reconstructive evidence requiring the proponent of the testing evidence to demonstrate substantial similarity); McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1402 (8th Cir.1994); Fusco, 11 F.3d at 264. Defendant argues that plaintiffs’ tests on the exemplar Ford Explorer are inadmissible because the testing exposed the exemplar vehicle to substantially different steering than the driver used in the instant case. The court agrees. To examine the stability of the 1996 Ford Explorer, Dr. Renfroe performed seven test runs on the exemplar vehicle using the Consumers’ Union Short Course Testing. The exemplar vehicle tipped up in only one of the seven test runs. Tipping occurred when the exemplar vehicle was subjected to a total stirring input of 660 degrees. In contrast, Dr. Renfroe estimated that the driver in the instant case subjected his car to a total stirring input of 323 degrees. Because the driver in the instant case turned the steering wheel only half as far as the driver in the test run where the exemplar vehicle tipped up, the court cannot conclude that the testing on the exemplar vehicle is substantially similar to the subject accident. See Samuel v. Ford Motor Co., 96 F.Supp.2d 491, 502 (D.Md. 2000) (finding inadmissible the results of accident avoidance maneuver test used by expert to evaluate the roll over propensity of van because, inter alia, the test subjected the tested vehicle to conditions, including steering angles, which greatly exceeded what reasonably could be expected when a vehicle was driven under real world emergency conditions). In light of the above, the court holds that plaintiffs may not introduce at trial the testing on the exemplar 1996 Ford Explorer. In their proffer of evidence, plaintiffs included a number of additional test runs performed by Dr. Renfroe to support his opinions in other lawsuits. Because plaintiffs have not described in sufficient detail the conditions of these additional test runs in order to show that the testing occurred under substantially similar" }, { "docid": "23112552", "title": "", "text": "not intended to serve as a re-enactment of the explosion, but merely to demonstrate the physical principles of the defect asserted by plaintiffs.” (Jt.App.Docket No. 321 at 8.) McKnight also points out that Jacobson never testified that he recreated or even attempted to recreate the accident. McKnight alternatively argues that even if the experiments needed to be performed under substantially similar conditions, that test is satisfied in this case. Whether the evidence from Jacobson’s experiments was offered and admitted as a reconstruction of the accident or only to demonstrate scientific principles will determine the foundational standard McKnight needed to satisfy. In this case, like many others, the distinction between evidence offered as a reconstruction of the accident and evidence offered to demonstrate scientific principles is very difficult to draw. See Gilbert, 989 F.2d at 403. There is no bright line distinguishing these two categories of evidence. The First Circuit recently concluded that “the critical point is not one of labels.” Fusco v. General Motors Corp., 11 F.3d 259, 264 (1st Cir.1993). Instead, the key question is “whether the demonstration is sufficiently close in appearance to the original accident to create the risk of misunderstanding by the jury, for it is that risk that gives rise to the special requirement to show similar conditions.” Id.; see also Gilbert, 989 F.2d at 403. (“The more blurred that distinction [between demonstration and reconstruction] becomes, the greater the risk for prejudice.”). The First Circuit went on to observe that: Scientific principles, when demonstrated in a fairly abstract way, are quite unlikely to be confused with the events on trial. The more troublesome eases, however, are ones like this one where some principles of some kind may be demonstrated but in a fashion that looks very much like a recreation of the event that gave rise to the trial. Fusco, 11 F.3d at 264 n. 5. The First Circuit concluded that the demonstration was “rife with the risk of misunderstanding” and that the trial court acted properly in excluding it from the record. Id. at 264. We agree with the First Circuit that experimental evidence" }, { "docid": "8384991", "title": "", "text": "sufficiently close in appearance to the original accident to create the risk of misunderstanding by the jury, for it is that risk that gives rise to the special requirement to show similar conditions.” Fusco, 11 F.3d at 264. The court finds that there is little danger that the jury would view the slap and pendulum tests as a simulation of the rollover at issue. See Guild v. Gen. Motors Corp., 53 F.Supp.2d 363, 370 (W.D.N.Y.1999) (allowing experts of motor vehicle rollover accident victim to perform slap test to demonstrate principle of inertial unlatching in product liability action); Harkins v. Ford Motor Co., 437 F.2d 276, 278 (3d Cir.1970) (no error for jury to view experiments that were merely demonstrations designed to graphically depict general principles of physics); Rimac v. Nissan Motor Corp., 1986 WL 1838 *1 (N.D.Ill.1986) (finding plaintiffs demonstrations admissible because they were intended to “demonstrate the effect of an impact of a given force” and were not purported to be a reconstruction of the accident). To ensure that the jury understands that the pendulum and slap tests are being offered to illustrate the principles of science involved in inertial unlatching and thereby avoid any undue prejudice, the court will give the jury a proper limiting instruction. See Robinson v. Audi Nsu Auto Union, 739 F.2d 1481, 1484 (10th Cir.1984) (where experiments do not simulate actual events at issue, jury should be instructed that evidence is admitted for a limited purpose). C. Other Evidence In their proffer of evidence, plaintiffs announced their intention to introduce at trial a computer-generated reconstruction of the rollover in the instant accident, several photographs of the accident area, and the reports of plaintiffs’ various experts and the documents, literature, tests, and studies conducted by the experts or consulted by them. Defendant has not moved to exclude this evidence. Therefore, the court will not rule on this evidence’s admissibility at this point. IY. Conclusion For the foregoing reasons, defendant’s motion to exclude (Docket No. 297) is hereby GRANTED IN PART and DENIED IN PART. SO ORDERED." }, { "docid": "8384990", "title": "", "text": "circumstances as the accident in the instant case, the court holds that plaintiffs may not introduce at trial the results of these additional test runs. 2. Pendulum and Slap Tests At trial, plaintiffs intend to show the jury certain videotaped or in-court demonstrations in which an RCF-67 seat-belt buckle removed from its mounting system inside a vehicle is struck with a pendulum or smacked with some other object. Plaintiffs maintain that these pendulum and slap tests are relevant because they illustrate how the forces of inertia can cause the RCF-67 seatbelt to unlatch. Defendant contends that these demonstrations are inadmissible because they are not substantially similar to the conditions which a buckle will experience inside a vehicle during a rollover crash. The court disagrees. A party introducing evidence to reconstruct an accident must comply with the substantial similarity standard. However, a party presenting evidence to illustrate general scientific principles need not comply with the substantial similarity standard. Jodoin, 284 F.3d at 278. To differentiate between illustrations and recreations, courts look “to whether the evidence is sufficiently close in appearance to the original accident to create the risk of misunderstanding by the jury, for it is that risk that gives rise to the special requirement to show similar conditions.” Fusco, 11 F.3d at 264. The court finds that there is little danger that the jury would view the slap and pendulum tests as a simulation of the rollover at issue. See Guild v. Gen. Motors Corp., 53 F.Supp.2d 363, 370 (W.D.N.Y.1999) (allowing experts of motor vehicle rollover accident victim to perform slap test to demonstrate principle of inertial unlatching in product liability action); Harkins v. Ford Motor Co., 437 F.2d 276, 278 (3d Cir.1970) (no error for jury to view experiments that were merely demonstrations designed to graphically depict general principles of physics); Rimac v. Nissan Motor Corp., 1986 WL 1838 *1 (N.D.Ill.1986) (finding plaintiffs demonstrations admissible because they were intended to “demonstrate the effect of an impact of a given force” and were not purported to be a reconstruction of the accident). To ensure that the jury understands that the" }, { "docid": "2198661", "title": "", "text": "1226, 1233-34 (8th Cir.1982) (“Admissibility, however, does not depend on perfect identity between actual and experimental conditions. Ordinarily, dissimilarities affect the weight of the evidence, not its admissibility.”); accord Szeliga v. Gen. Motors Corp., 728 F.2d 566, 567 (1st Cir.1984) (holding that “[dissimilarities between experimental and actual conditions affect the weight of the evidence, not its admissibility,” but not specifically applying the substantial similarity standard). Therefore, the district court abused its discretion when it required plaintiffs to demonstrate that the exemplar vehicle was “virtually identical” to Mrs. Jodoin’s truck. Nevertheless, we will not reverse the district court judgment if the error was harmless. See Fed.R.Evid. 103(a) (“Error may not be predicated upon a ruling which admits or excludes evidence, unless a substantial right of the party is affected”); see also United States v. Meserve, 271 F.3d 314, 329 (1st Cir.2001). The error is not harmless if the record indicates that plaintiffs offered sufficient proof that the exemplar vehicle was substantially similar to Mrs. Jodoin’s vehicle. As this evidence is plaintiffs’ only proof of defect, any improper exclusion adversely affects their substantial rights. “Substantial similarity depends upon the underlying theory of the case.” Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1440 (10th Cir.1992). We have looked to the specific variables in various accidents when determining whether the recreation is substantially similar to the original accident. Compare Swajian, 916 F.2d at 36 (focusing on the fact that the driver during a recreation was a professional driver who knew the axle was going to fracture when driver response to an alleged axle fracture was a key element in the original accident), with Robbins, 653 F.2d at 49-50 (reversing exclusion of test data when the only suggested difference between re-enactment and actual accident was the skill level of the drivers and the trial issue revolved solely around using length of skid marks to estimate the car’s original speed). When the relevant elements are sufficiently similar, we further emphasize that other differences are for defendants to highlight and the jury to weigh in its deliberations. Robbins, 653 F.2d at 50. Here, plaintiffs" }, { "docid": "2198660", "title": "", "text": "similarity test, we accord substantial deference to the trial court, looking only for an abuse of discretion. See Udemba v. Nicoli, 237 F.3d 8, 14 (1st Cir.2001). While this accords the district court considerable latitude, it is not a toothless standard. See Espeaignnette v. Gene Tierney Go., 43 F.3d 1, 5 (1st Cir.1994). An error of law, underlying the evidentiary ruling, constitutes an abuse of discretion. See Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (“A district court by definition abuses its discretion when it makes an error of law.”); see also United States v. Kayser-Roth Corp., 272 F.3d 89, 100 (1st Cir.2001). Here, the district court never specifically applied the substantial similarity standard. Instead, it announced several times that plaintiffs needed to show that the exemplar vehicle was “virtually identical” to Mrs. Jodoin’s vehicle. “Virtually identical” is an incorrect standard. See Robbins v. Whelan, 653 F.2d 47, 49 (1st Cir.1981) (holding that “perfect identity” is incorrect standard); see also Randall v. Warnaco, Inc., Hirsch-Weis Div., 677 F.2d 1226, 1233-34 (8th Cir.1982) (“Admissibility, however, does not depend on perfect identity between actual and experimental conditions. Ordinarily, dissimilarities affect the weight of the evidence, not its admissibility.”); accord Szeliga v. Gen. Motors Corp., 728 F.2d 566, 567 (1st Cir.1984) (holding that “[dissimilarities between experimental and actual conditions affect the weight of the evidence, not its admissibility,” but not specifically applying the substantial similarity standard). Therefore, the district court abused its discretion when it required plaintiffs to demonstrate that the exemplar vehicle was “virtually identical” to Mrs. Jodoin’s truck. Nevertheless, we will not reverse the district court judgment if the error was harmless. See Fed.R.Evid. 103(a) (“Error may not be predicated upon a ruling which admits or excludes evidence, unless a substantial right of the party is affected”); see also United States v. Meserve, 271 F.3d 314, 329 (1st Cir.2001). The error is not harmless if the record indicates that plaintiffs offered sufficient proof that the exemplar vehicle was substantially similar to Mrs. Jodoin’s vehicle. As this evidence is plaintiffs’ only proof of defect, any" }, { "docid": "17111618", "title": "", "text": "Cir.1975) (requiring a prima facie showing of substantial identity of the product’s condition at. the- time of the accident and the time of inspection); cf. Fusco v. General Motors Corp., 11 F.3d 259, 263-64 (1st Cir.1993) (requiring a foundational showing of substantial similarity in circumstances between proffered demonstration and actual events). Given that a number of experts examined and tested the 560 SEL in an attempt to determine why it unexpectedly rolled, the district court was warranted in requiring Bo-gosian to come forward with evidence sufficient to prove that those experts did not disturb the transmission mechanism in any material respect. See Williams v. Briggs Co., 62 F.3d 703, 707-08 (5th Cir.1995) (upholding exclusion of testimony about water heater malfunction where the expert conducted a test two years after the accident and after various, unspecified repairs were made); see also Romano v. Ann & Hope Factory Outlet, Inc., 417 A.2d 1375, 1379-80 (R.I.1980) (upholding, under Rhode Island evidence laws, trial court’s discretionary exclusion of design-defect testimony where the expert examined the bicycle two years after the accident and after a previous expert’s experiments) (collecting cases). Because neither Davidson nor Perri was competent to establish the requisite similarity of condition, there was no evidentiary link between the condition of the transmission in July 1992 and in January 1994. On these facts, Bogosian failed to make a prima facie showing that the condition of the transmission at the time of Davidson’s testing was substantially similar to that on the accident date. Thus, we conclude that the court properly excluded Davidson’s expert opinion, in part, on this basis. See Fed.R.Evid. 104(b) & advisory committee’s note (concerning conditionally relevant evidence); United States v. Wilson, 798 F.2d 509, 515-16 (1st Cir.1986) (explaining that a district court enjoys broad discretion in determining the admissibility of conditionally relevant material). In conclusion, we have considered carefully Bogosian’s arguments and the record before us, and, for all of the foregoing reasons, we do not find the district court’s decision to exclude Davidson’s testimony to be manifestly erroneous. IV. Subsequent Remedial Measures Bogosian claims error in the district court’s refusal" }, { "docid": "8384989", "title": "", "text": "the steering wheel only half as far as the driver in the test run where the exemplar vehicle tipped up, the court cannot conclude that the testing on the exemplar vehicle is substantially similar to the subject accident. See Samuel v. Ford Motor Co., 96 F.Supp.2d 491, 502 (D.Md. 2000) (finding inadmissible the results of accident avoidance maneuver test used by expert to evaluate the roll over propensity of van because, inter alia, the test subjected the tested vehicle to conditions, including steering angles, which greatly exceeded what reasonably could be expected when a vehicle was driven under real world emergency conditions). In light of the above, the court holds that plaintiffs may not introduce at trial the testing on the exemplar 1996 Ford Explorer. In their proffer of evidence, plaintiffs included a number of additional test runs performed by Dr. Renfroe to support his opinions in other lawsuits. Because plaintiffs have not described in sufficient detail the conditions of these additional test runs in order to show that the testing occurred under substantially similar circumstances as the accident in the instant case, the court holds that plaintiffs may not introduce at trial the results of these additional test runs. 2. Pendulum and Slap Tests At trial, plaintiffs intend to show the jury certain videotaped or in-court demonstrations in which an RCF-67 seat-belt buckle removed from its mounting system inside a vehicle is struck with a pendulum or smacked with some other object. Plaintiffs maintain that these pendulum and slap tests are relevant because they illustrate how the forces of inertia can cause the RCF-67 seatbelt to unlatch. Defendant contends that these demonstrations are inadmissible because they are not substantially similar to the conditions which a buckle will experience inside a vehicle during a rollover crash. The court disagrees. A party introducing evidence to reconstruct an accident must comply with the substantial similarity standard. However, a party presenting evidence to illustrate general scientific principles need not comply with the substantial similarity standard. Jodoin, 284 F.3d at 278. To differentiate between illustrations and recreations, courts look “to whether the evidence is" }, { "docid": "23112592", "title": "", "text": "this evidence. . JCI points to various places in the record where Jacobson acknowledged that the exemplar and the accident battery were not identical. This is unavailing. First, there is only a substantial similarity requirement, not a perfect identity requirement. See Champeau, 814 F.2d at 1278. Second, this testimony does not suggest that the minor differences would affect the test results or otherwise skew the data. . We previously have stated that \"[o]rdinarily, dissimilarities affect the weight of the evidence, not its admissibility.\" Champeau, 814 F.2d at 1278 (quotation omitted). However, we made this observation only after noting that there must be substantial similarity between the experimental evidence and the actual accident conditions. This statement, therefore, should be read in context and limited in its application to cases where a district court first finds substantial similarity. After the district court makes a finding of substantial similarity, any remaining issues about whether there are remaining dissimilarities that would affect the impact of this evidence are weight of the evidence determinations to be made by the jury. Simply stated, the district court’s finding of substantial similarity only gets the evidence before the jury, but the ruling does not tell the jury how much weight to give it. . The Court then went on to point out particular inquiries that may help the trial court determine whether there is a sufficient foundation. The Court ended with a section pointing out that its ruling would not make for an expert \"free-for-all” because the traditional means of attacking shaky but admissible evidence, including vigorous cross-examination, presentation of stronger contrary evidence, and careful instruction of the burden of proof keeps that type of evidence in check. The Court concluded by noting that \"[tjhese conventional devices, rather than wholesale exclusion under an uncompromising 'general acceptance’ test, are the appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702.” Daubert, — U.S. at —, 113 S.Ct. at 2798. . Our ruling is not meant to encourage the off-the-record arguments and evidentiary hearings utilized in this case. We strongly discourage such a practice." }, { "docid": "23112553", "title": "", "text": "is “whether the demonstration is sufficiently close in appearance to the original accident to create the risk of misunderstanding by the jury, for it is that risk that gives rise to the special requirement to show similar conditions.” Id.; see also Gilbert, 989 F.2d at 403. (“The more blurred that distinction [between demonstration and reconstruction] becomes, the greater the risk for prejudice.”). The First Circuit went on to observe that: Scientific principles, when demonstrated in a fairly abstract way, are quite unlikely to be confused with the events on trial. The more troublesome eases, however, are ones like this one where some principles of some kind may be demonstrated but in a fashion that looks very much like a recreation of the event that gave rise to the trial. Fusco, 11 F.3d at 264 n. 5. The First Circuit concluded that the demonstration was “rife with the risk of misunderstanding” and that the trial court acted properly in excluding it from the record. Id. at 264. We agree with the First Circuit that experimental evidence falls on a spectrum and the foundational standard for its admissibility is determined by whether the evidence is closer to simulating the accident or to demonstrating abstract scientific principles. See id. The closer the experiment gets to simulating the accident, the more similar the conditions of the experiment must be to the accident conditions. Here, we find this to be one of the “troublesome cases ... where some principles of some kind may be demonstrated but in a fashion that looks very much like a recreation of the events that gave rise to the trial.” Id. at 264 n. 5. The experiments were conducted on the same type and make of battery as the accident battery, and the experiments were used to explain what probably happened during the accident. These tests clearly were not limited to a demonstration of scientific principles in the abstract. As such, we reject McKnight’s assertion that the evidence from the experiments Jacobson conducted was offered only to demonstrate general scientific principles and that the evidence did not have to satisfy" }, { "docid": "23112551", "title": "", "text": "the “coordinate test,” as JCI contends that the exact measurements vary from battery to battery and that the exemplar and the accident battery were made from different molds. JCI next contends that Jacobson’s experiments were not performed under conditions similar to those at the time of the accident because he operated the battery under different conditions than those that existed at the time of the accident. In particular, JCI contends that the “leak test” was not performed under conditions substantially similar to the accident conditions because Jacobson used helium gas instead of hydrogen gas, drained the electrolyte fluid from the battery, substantially increased the pressure inside the battery, and plugged the vent cap holes. McKnight first argues that both of Jacobson’s experiments were offered only to illustrate the scientific principles and rationale for Jacobson’s conclusions and that, therefore, the experiments did not need to be conducted under substantially similar conditions. In response to JCI’s pretrial motion in limine seeking to prevent the introduction of Jacobson’s experiments, McKnight specifically stated that the experiments’ test results “are not intended to serve as a re-enactment of the explosion, but merely to demonstrate the physical principles of the defect asserted by plaintiffs.” (Jt.App.Docket No. 321 at 8.) McKnight also points out that Jacobson never testified that he recreated or even attempted to recreate the accident. McKnight alternatively argues that even if the experiments needed to be performed under substantially similar conditions, that test is satisfied in this case. Whether the evidence from Jacobson’s experiments was offered and admitted as a reconstruction of the accident or only to demonstrate scientific principles will determine the foundational standard McKnight needed to satisfy. In this case, like many others, the distinction between evidence offered as a reconstruction of the accident and evidence offered to demonstrate scientific principles is very difficult to draw. See Gilbert, 989 F.2d at 403. There is no bright line distinguishing these two categories of evidence. The First Circuit recently concluded that “the critical point is not one of labels.” Fusco v. General Motors Corp., 11 F.3d 259, 264 (1st Cir.1993). Instead, the key question" }, { "docid": "2198657", "title": "", "text": "is clear that a party cannot prevail, we decline to hold that plaintiffs forfeited their entire case when they followed the court’s direction and rested their case, knowing that they could not prevail should they continue. In doing so, plaintiffs did not waive their right to appeal the court’s evidentiary rulings. III. Plaintiffs challenge the district court’s ruling excluding all evidence relating to the testing of the exemplar vehicle. This evidence consists principally of Mr. Anderson’s testimony. The district court deemed the evidence irrelevant unless plaintiffs could show that the exemplar vehicle was “virtually identical” to Mrs. Jodoin’s truck. Because we find that the district court employed the wrong legal standard, we conclude that the district court abused its discretion by summarily excluding the evidence relating to the testing of the exemplar vehicle and that this error was not harmless. The Federal Rules of Evidence establish a low threshold for relevance, generally. However, relevant evidence may be excluded if its probative value is “substantially outweighed” by its likelihood to confuse the issue or mislead the jury. Fed.R.Evid. 403. In this regard, courts have treated with skepticism evidence that seeks to recreate accidents. See, e.g., Swajian v. Gen. Motors Corp., 916 F.2d 31, 36 (1st Cir.1990) (upholding exclusion of a videotape test which portrayed the consequences of a car’s axle fracturing). They have not, however, excluded all such evidence. See, e.g., Robbins v. Whelan, 653 F.2d 47, 49-50 (1st Cir.1981) (overturning district court’s exclusion of report documenting stopping distances for various vehicles). When a party introduces evidence that attempts to reconstruct an accident, that party must show a “substantial similarity in circumstances” between the reconstruction and the original accident. Fusco v. Gen. Motors Corp., 11 F.3d 259, 264 (1st Cir.1993). In contrast, a party may introduce evidence that simply illustrates general scientific principles. See id. Then, we simply inquire whether the test on which the evidence is premised was “properly conducted.” Id. Differentiating between recreations and illustrations of general scientific principles can be difficult. See McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1402 (8th Cir.1994). Generally, we look to whether" }, { "docid": "1902478", "title": "", "text": "particles were present in the valve, but none of those detected were large enough to cause the leak. See id. The plaintiffs’ expert reasoned that, despite the lack of evidence from testing, the sulfide particles most likely caused the leak. See id. The defendant’s in Bitler v. A.O. Smith challenged the plaintiffs’ experts’ testimony. See id. at 1119. The trial court held that the expert’s testimony was relevant and reliable as required by Daubert. Upon review, the Tenth Circuit affirmed the district court. The court explained that an expert’s “personal experience, training, method of observation, and deductive reasoning” could be scientifically valid methodology. Id. at 1122. The circuit court also explained that rule 702 did not require expert’s to test their theories. See id. at 1123. PRODUCTS LIABILITY LAW 1. Categories of Products Liability Cases. New Mexico courts have recognized that the theory of products liability is applicable to three defects: design, manufacturing, and marketing (warnings). See Smith v. Bryco Arms, 2001 NMCA 90, 92, 33 P.3d 638, 643 (N.M.Ct.App.2001); Fernandez v. Ford Motor Co., 118 N.M. 100, 109, 879 P.2d 101, 110 (N.M.Ct.App.1994). 2. Other Incidents. In Black v.M & W Gear Co., 269 F.3d 1220 (10th Cir.2001), the Tenth Circuit stated: [Ejvidence of other accidents in a products liability suit is relevant to show notice, demonstrate the existence of a defect, or to refute the testimony of a defense witness. Before evidence of other accidents is admissible for any purpose, however, the party seeking its admission must show the circumstances surrounding the other accidents were substantially similar to the accident that is the subject of the litigation before the court. Id. at 1227 (citations omitted). 3. Necessity of expert testimony. Courts in some jurisdictions have held that expert testimony is essential to explain complex issues in product liability cases: “[Ljay jurors would tend to understand products that do not work; they are not likely to possess ‘common understanding’ about how products are designed.” Anderson v. Raymond Corporation, 340 F.3d 520, 524 (8th Cir.2003)(citing Dancy v. Hyster Co., 127 F.3d 649, 653 (8th Cir.1997)). In Hochen v. Bobst Group," }, { "docid": "8384985", "title": "", "text": "problems. Thus, the court finds that the prior rollover accidents, as described by plaintiffs, were not of a kind which should have served to warn the defendant that the 1996 Ford Explorer had stability problems. Accordingly, the court holds that plaintiffs may not introduce at trial these prior rollover accidents. 2. Prior Accidents Involving Vehicles Using the RCF-67 Seatbelt To demonstrate that defendant had notice that the 1996 Ford Explorer’s RCF-67 seatbelt was prone to inertial unlatching in rollovers, plaintiffs seek to introduce at trial three (3) prior accidents involving vehicles using the RCF-67 seat-belt: a 1985 rear-corner impact to a Ford Escort, a 1989 crash of a Ford Taurus, and an expert report from 2000 discussing a Mazda pick-up rollover. Defendant maintains that these accidents are inadmissible because plaintiffs have failed to demonstrate that they are substantially similar to the accident in the instant case. The court finds these accidents inadmissible. The Ford Escort and the Ford Taurus accidents did not involve an Explorer vehicle, or even a sports utility vehicle. Moreover, these accidents did not involve rollovers, but rather collisions. The Mazda accident involved a Mazda truck and not a Ford Explorer. Likewise, the jury in the Mazda case found that the driver was not wearing a seatbelt and that the vehicle was not defective. For these reasons, the court finds that these prior accidents were not of a kind which should have served to warn the defendant that the 1996 Ford Explorer’s RCF-67 seatbelt was prone to inertial unlatching in rollovers. Thus, the court holds that plaintiffs may not introduce at trial the submitted prior accidents involving vehicles using the RCF-67 seat-belt. B. Testing Evidence Evidence of accident reconstructions may be relevant and, therefore, comply with the relevancy requirements of Rule 401. To be relevant, an accident reconstruction must be substantially similar to the original accident. Jodoin v. Toyota Motor Corp., 284 F.3d 272, 278 (1st Cir. 2002) (citing Fusco v. Gen. Motors Corp., 11 F.3d 259, 264 (1st Cir.1993)). Perfect identity between the experimental conditions and the actual conditions is not necessary. Robbins v. Whelan, 653" }, { "docid": "23112550", "title": "", "text": "(8th Cir.1987) (internal quotations and citations omitted) (emphasis added). This foundational requirement for the admission of experimental evidence is very well established in this circuit and others. See, e.g., Cowens v. Siemens-Elema AB, 837 F.2d 817, 820 (8th Cir.1988); Hale v. Firestone Tire & Rubber Co., 820 F.2d 928, 932 (8th Cir.1987) (Hale II); see also Gilbert v. Cosco Inc., 989 F.2d 399, 402 (10th Cir.1993) (burden is on proponent to demonstrate similarity of circumstances prior to admission of evidence). However, we also have found that where the experimental tests do not purport to recreate the accident, but instead the experiments are used to demonstrate only general scientific principles, the requirement of substantially similar circumstances no longer applies. Champean, 814 F.2d at 1278. JCI first contends that the conditions under which Dr. Jacobson conducted both experiments were not substantially similar to those involved in the accident because the battery Dr. Jacobson used to conduct the experiments was not substantially similar to the battery involved in the explosion. This argument focuses largely on the integrity of the “coordinate test,” as JCI contends that the exact measurements vary from battery to battery and that the exemplar and the accident battery were made from different molds. JCI next contends that Jacobson’s experiments were not performed under conditions similar to those at the time of the accident because he operated the battery under different conditions than those that existed at the time of the accident. In particular, JCI contends that the “leak test” was not performed under conditions substantially similar to the accident conditions because Jacobson used helium gas instead of hydrogen gas, drained the electrolyte fluid from the battery, substantially increased the pressure inside the battery, and plugged the vent cap holes. McKnight first argues that both of Jacobson’s experiments were offered only to illustrate the scientific principles and rationale for Jacobson’s conclusions and that, therefore, the experiments did not need to be conducted under substantially similar conditions. In response to JCI’s pretrial motion in limine seeking to prevent the introduction of Jacobson’s experiments, McKnight specifically stated that the experiments’ test results “are" }, { "docid": "23112554", "title": "", "text": "falls on a spectrum and the foundational standard for its admissibility is determined by whether the evidence is closer to simulating the accident or to demonstrating abstract scientific principles. See id. The closer the experiment gets to simulating the accident, the more similar the conditions of the experiment must be to the accident conditions. Here, we find this to be one of the “troublesome cases ... where some principles of some kind may be demonstrated but in a fashion that looks very much like a recreation of the events that gave rise to the trial.” Id. at 264 n. 5. The experiments were conducted on the same type and make of battery as the accident battery, and the experiments were used to explain what probably happened during the accident. These tests clearly were not limited to a demonstration of scientific principles in the abstract. As such, we reject McKnight’s assertion that the evidence from the experiments Jacobson conducted was offered only to demonstrate general scientific principles and that the evidence did not have to satisfy the substantial similarity requirement. During the trial, the trial court admitted the experimental evidence over the objection of JCI without specifically requiring a showing of substantial similarity or making findings concerning the matter. However, after trial, and in response to JCI’s motion for new trial or judgment as a matter of law, the trial court made the following finding: Regarding the alleged error in admitting evidence of experimental testing that Jacobson performed on the exemplar battery, the Court is satisfied that that battery was substantially similar to the accident battery, that the experimental testing was conducted under conditions substantially similar to the actual conditions of the accident, and that plaintiff laid a proper foundation. (Jt.App. Docket No. 379 at 3-4.) Hence, the trial court, though belatedly, indicated that the evidence satisfied the substantial similarity test. We review that determination for abuse of discretion. Chief Judge Arnold has described review for abuse of discretion as follows: [Wjhen we say that a decision is discretionary, or that a district court has discretion ..., we do not mean" } ]

[ { "docid": "22409998", "title": "", "text": "decision by that court supported by an exhaustive opinion by JudgeJDavis dealing with the application of the “first accrual” language of 28 U. S. C. § 2501 to both breach and disputes clause - claims under the typical government contract. The con-' elusion of the Court of Claims was that it would adhere to what it considered to be its long-standing rule: (1) when administrative proceedings with respect to a ^contractor’s claim subject to the disputes clause extend beyond the completion of the contract, his right of action first accrues when the administrative action is final, and not before, •and (2) when the contractor has breach claims as well as disputes clause claims the statute begins to run on breach claims as well only at the conclusion of administrative action on the claims arising under the contract. As will be evident below, we . do not reach the question of breach claims in this case. But with respect to claims arising under the contract, such as one asserted under the changes clause, we agree with the Court of Claims and essentially for the reasons which that court articulated. 1. We start with the obvious: Section 2401 (a) provides a time limit upon bringing civil actions against thedjnited States. The' “civil action”, referred to is a civil action in a court of competent jurisdiction. ‘ Cf. Unexcelled Chemical Corp. v. United States, 345 U. S. 59. Such a civil suit is seemingly, barred if the right-to bring it first accrued more than six years prior to the date of filing the suit. Our initial inquiry is, therefore, when the right of the contractor in this case to bring suit in the District Court first accrued. In our opinion, if its claim arose under thie contract, it first accrued at the time of the final decision of the Armed Services Board. of Contract Appeals, that is, upon the completion of the administrative proceedings contemplated and required by the' provisions of the contract. With respect to claims arising under the typical government contract, the contractor has agreed in effect to convert what otherwise" } ]

[ { "docid": "14133068", "title": "", "text": "limitations defense. From this judgment, the government appeals. Analysis It is undisputed that 28 U.S.C. § 2462 applies to the government’s action. That section provides as follows: § 2462. Time for commencing proceedings Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon. The issue for decision is the meaning of “the date when the claim first accrued.” Core contends that this is the date on which the violation(s) occurred. The government contends that “the date when the claim first accrued” is the date of the final administrative order assessing the penalty. Despite numerous citations offered by the government on brief, only one case, United States Department of Labor v. Old Ben Coal Company, 676 F.2d 259 (7th Cir.1982), directly supports its position, and that support, given the court’s conclusion that § 2462 had no application, is less than overwhelming. Cases dealing with other limitations statutes are of extremely limited value; as stated by the Supreme Court in Crown Coat Front Co. v. United States, 386 U.S. 503, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967), a Tucker Act case heavily relied on by the Government, The Court has pointed out before, however, the hazards inherent in attempting to define for all purposes when a “cause of action” first “accrues.” Such words are to be “interpreted in the light of the general purposes of the statute and of its other provisions, and with due regard to those practical ends which are to be served by any limitation of the time with in which an action must be brought.” Reading Co. v. Koons, 271 U.S. 58 [46 S.Ct. 405, 70 L.Ed. 835 (1926)].... Cases under the Suits in Admiralty Act do not necessarily rule Tucker Act claims. 386 U.S. at 517, 87 S.Ct. at" }, { "docid": "1962506", "title": "", "text": "Act the district court claim accrues only after the administrative proceeding has ended, a penalty has been assessed, and the violator has failed to pay the penalty. The Coal Act states specifically that the Secretary shall file a petition for enforcement of the order assessing the civil penalty only if the person against whom the penalty was assessed fails to pay it within the time prescribed in the order. 30 U.S.C. § 819(a)(4) Obviously an administrative agency order must exist before the Secretary can file a district court action to enforce it. Id.; see also 3M Co. v. Browner, 11 F.3d 1453, 1457 n.8 (D.C. Cir. 1994) (agreeing that, “with respect to an action in the district court to collect a penalty previously imposed administratively, the collection claim accrues under § 2462 ‘after the administrative proceeding has ended, a penalty has been assessed, and the violator has failed to pay the penalty ” (quoting Old Ben Coal, 676 F.2d at 261)). Likewise, in SEC v. Mohn, 465 F.3d 647, 653-54 (6th Cir. 2006), the Sixth Circuit cited the Black’s Law definition of “accrue” in concluding that the limitations period on an enforcement action by the Securities Exchange Commission (“SEC”) began to run at the time the order was issued because, before then, “[t]he SEC simply had no order to enforce.” 465 F.3d at 654. Finally, in United States v. Godbout-Bandal, 232 F.3d 637, 639 (8th Cir. 2000), the Eighth Circuit expressly adopted the First Circuit’s plain language reasoning in Meyer while applying Section 2462 to an enforcement action under the Change in Bank Control Act, 12 U.S.C. § 1818®. 232 F.3d at 640. It further reasoned that the text of Section 1818 reinforced this conclusion because it did “not allow the government to begin a collection proceeding until the defendant ‘fails to pay an assessment after any penalty imposed under this paragraph has become final.’ ” Id. (quoting 12 U.S.C. § 1818(i)(2)(I)(i)); see also SEC v. Pinchas, 421 F.Supp.2d 781, 783-84 (S.D.N.Y. 2006); United States v. Great American Veal, Inc., 998 F.Supp. 416, 423-24 (D. N.J. 1998); United States v." }, { "docid": "1962505", "title": "", "text": "sanction which the respondent has thereafter refused to satisfy.” Id. Based on these provisions, the court concluded that, by Section 2462’s plain language and the plain language of the EAA, the statute of limitations to enforce a penalty under the EAA did not begin to run until the administrative penalty had been imposed. Id. Other circuit courts have reached the same conclusion based on the plain language of Section 2462 in connection with different statutes. In U.S. Department of Labor v. Old Ben Coal Co., 676 F.2d 259, 261 (7th Cir. 1982), the Seventh Circuit reversed a district court’s holding that an enforcement action was time-barred because the underlying violation occurred more than five years before the government filed the action. The court reasoned that “[a] statute of limitations cannot begin to run until there is a right to bring an action.” Id. at 261. It elaborated: The statute of limitations at 28 U.S.C. § 2462 does not begin to run until “the date when the claim first accrued.” In the context of the Coal Act the district court claim accrues only after the administrative proceeding has ended, a penalty has been assessed, and the violator has failed to pay the penalty. The Coal Act states specifically that the Secretary shall file a petition for enforcement of the order assessing the civil penalty only if the person against whom the penalty was assessed fails to pay it within the time prescribed in the order. 30 U.S.C. § 819(a)(4) Obviously an administrative agency order must exist before the Secretary can file a district court action to enforce it. Id.; see also 3M Co. v. Browner, 11 F.3d 1453, 1457 n.8 (D.C. Cir. 1994) (agreeing that, “with respect to an action in the district court to collect a penalty previously imposed administratively, the collection claim accrues under § 2462 ‘after the administrative proceeding has ended, a penalty has been assessed, and the violator has failed to pay the penalty ” (quoting Old Ben Coal, 676 F.2d at 261)). Likewise, in SEC v. Mohn, 465 F.3d 647, 653-54 (6th Cir. 2006), the Sixth" }, { "docid": "1962516", "title": "", "text": "to pay an assessment after any penalty imposed under this paragraph has become final” (quoting 12 U.S.C. § 1818(i)(2)(I)(i))); see also Old Ben Coal, 676 F.2d at 261 (“The Coal Act states specifically that the Secretary shall file a petition for enforcement of the order assessing the civil penalty only if the person against whom the penalty was assessed fails to pay it within the time prescribed in the order.”). The Communications Act thus “strongly suggests — indeed, requires— that the [FCC] refrain from initiating a civil suit until the appropriate administrative authority has imposed a sanction which the [alleged violator] has thereafter refused to satisfy.” Meyer, 808 F.2d at 914. As such, the language of the underlying statute and rules reinforces the Court’s reading of Section 2462. Overall, the plain language of Section 2462 proves dispositive on the issue. Like the First Circuit, the Court finds the language of Section 2462 to be “clear and unambiguous ... susceptible to but a single reasonable reading,” Meyer, 808 F.2d at 915, and the language of the Communications Act reinforces this reading. The Court, therefore, holds that the limitations period begins to run on issuance of the forfeiture order, not on the occurrence of the underlying violation. Worldwide argues that the dispositive criteria in Meyer was not the plain language of the statute, but rather the type of administrative procedure at issue. In particular, it contends that the procedure in Meyer was adjudicatory in nature and thus served as the basis for the holding that Section 2462’s limitations period should be measured from the date of the administrative assessment of the penalty. Here, by contrast, Worldwide asserts that the procedure is closer to a prosecutorial determination without adjudicatory protections, and, consequently, the limitations period should run from the date of the violation. For support, Worldwide highlights Meter’s efforts to distinguish the cases relied upon by the Fifth Circuit that “involved situations where prosecutorial determinations, rather than adjudicatory administrative proceedings, constituted the precondition to suit.” Meyer, 808 F.2d at 920. As Worldwide points out, the First Circuit observed that “the limitations period on" }, { "docid": "20949342", "title": "", "text": "would be free to enforce his claim. There was no chance for administrative action to consume the entire limitations period and therefore bar all resort to the courts. Crown Coat, 386 U.S. at 517, 87 S.Ct. at 1185 (emphasis supplied). As in Crown Coat, the enforcement provisions of the EAA contain no counterpart to the sixty day limit embodied in the Clarification Act. In the EAA context — where completion of administrative proceedings is an absolute prerequisite to the bringing of an enforcement action — a restrictive construction of 28 U.S.C. § 2462 would create a real chance that precisely the happenstance against which the Court warned could come to pass. Given this tailoring of the circumstances, Crown Coat fits cases like the one at bar snugly. We find the Crown Coat analogy to be compelling in interpreting the parallel precincts of 28 U.S.C. § 2462 and its application to the EAA, and we view its force to be undiminished by a fair reading of either Unexcelled or McMahon. In turn, we note approvingly the course charted by the Seventh Circuit in United States Department of Labor v. Old Ben Coal Co., 676 F.2d 259 (7th Cir.1982), a case closely in point. There, a federal agency sued to collect a penalty assessed against a colliery for infractions of the Federal Coal Mine Health and Safety Act, 30 U.S.C. §§ 801 et seq. The district court dismissed the action as time-barred under 28 U.S.C. § 2462, suit having been brought more than five years after the underlying statutory violations had occurred. The court of appeals reversed, holding that where administrative proceedings are required before a court action may be brought, the limitations period prescribed by § 2462 starts to run only upon the conclusion of such proceedings: A statute of limitations cannot begin to run until there is a right to bring an action____ The statute of limitations at 28 U.S.C. § 2462 does not begin to run until “the date when the claim first accrued.” In the context of the Coal Act the district court claim accrues only after the" }, { "docid": "20949336", "title": "", "text": "intendment, and applicability of a general statute enacted many years before. Given that the legislative guess as to how § 2462 will operate does violence to the plain meaning of the statute, it would be wrong to pay homage to the committee report in our current deliberations. III. Our reading of the plain language of the statute does not stand unassisted. Review of the relevant caselaw produces abundant support for such a commonsense construction of 28 U.S.C. § 2462. Outside of the Fifth Circuit, no court has ever held that, in a case where an antecedent administrative judgment is a statutory prerequisite to the maintenance of a civil enforcement action, the limitations period on a recovery suit runs from the date of the underlying violation as opposed to the date on which the penalty was administratively imposed. All of the analogous authority appears to concur with the general rule that “[i]f disputes are subject to mandatory administrative proceedings [before judicial action may be taken], then the claim does not accrue until their conclusion.” Lins v. United States, 688 F.2d 784, 786 (Ct.Cl.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 995 (1983). By all odds, the starting gate for any careful look at the precedents must be the Supreme Court’s seminal treatment of virtually this precise issue in Crown Coat Front Co. v. United States, 386 U.S. 503, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967). In Crown Coat, a private party brought suit to adjust a government contract. The right to sue had been made expressly subject to the exhaustion of administrative remedies as a condition precedent to the bringing of court action. The applicable statute of limitations mirrored 28 U.S.C. § 2462; it read that a civil action “shall be barred unless the complaint is filed within six years after the right of action first accrues....” 28 U.S.C. § 2401(a). The plaintiff had brought an action more than six years after the occurrence of the events underlying its contract claim, but less than six years from the issuance of a final administrative decision on that claim. Holding" }, { "docid": "1962514", "title": "", "text": "before the Secretary can file a district court action to enforce it.”). Indeed, the term “enforcement” in Section 2462 “presupposes the existence of an actual penalty to be enforced.” Meyer, 808 F.2d at 914. Therefore, by the plain meaning of the terms “accrue” and “enforcement,” Section 2462’s limitations period begins to run on the FCC’s action to enforce a penalty when the FCC initially imposes a forfeiture penalty. See Gabelli v. S.E.C., 568 U.S. 442, 133 S.Ct. 1216, 1220, 185 L.Ed.2d 297 (2013) (“Thus the standard rule is that a claim accrues when the plaintiff has a complete and present cause of action.” (citations omitted) (emphasis added)). Furthermore, like in Meyer, Godbout-Bandal, and Old Ben Coal, this reading of Section 2462 comports with the provisions of the underlying statute, the Communications Act. Specifically, Section 503(b)(4) authorizes the FCC to impose a “forfeiture penalty,” but only after issuing an NAL and giving the alleged violator an opportunity to challenge it. 27 U.S.C. § 503(b)(4). It further provides that a “forfeiture penalty determined under [Section 503(b)(4)] shall be recoverable pursuant to Section 504(a).” Id. (emphasis added); see also 27 U.S.C. § 504(a) (“The forfeitures provided for in this chapter ... shall be recoverable ... in a civil suit in the name of the United States.”). Put differently, the “forfeiture penalty” is not “recoverable” until it has been “determined” by the FCC. The FCC procedural rules confirm this interpretation of the Communications Act by providing that, “[i]f the forfeiture is not paid, the case will be referred to the Department of Justice for collection under section 504(a) of the Communications Act.” 47 C.F.R. § 1.80(f)(5). The rule’s language closely resembles the language of the EAA in Meyer, and that of the Bank Control Act in Godbout-Bandal. See Meyer, 808 F.2d at 914 (“[I]n the event of the failure of any person to pay a penalty ... a civil action for the recovery thereof may ... be brought in the name of the United States.” (quoting 50.U.S.C. App. § 2410(f))); Godb-ouP-Bandal, 232 F.3d at 639 (government could not bring suit until a defendant “fails" }, { "docid": "5242659", "title": "", "text": "two-year statute of limitations and a requirement that claims first be presented to and finally denied by the appropriate federal agency. 28 U.S.C. §§ 2401(b) and 2675(a). As a part of the Government’s consent to suit, the statute of limitations cannot be waived, so that a claim filed after the running of the statute is beyond the jurisdiction of the Court. Wolak v. United States, 366 F.Supp. 1106, 1110 (D.Conn. 1973); Crown Coat Front Co. v. United States, 363 F.2d 407 (2d Cir. 1966), rev’d on other grounds, 386 U.S. 503, 87 S.Ct. 1177, 18 L.Ed.2d 256. It is the duty of the Court to consider the statute of limitations with respect to claims against the United States even when it has not been put in issue by the Government. 366 F.Supp. at 1110. The applicable statute of limitations herein, 28 U.S.C. § 2401(b), provides: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. The comment concerning the 1966 amendment to § 2401(b) clarifies this language by stating the requirement of presentation of tort claims to the appropriate agency in writing within two years after the claim accrues and commencement of an action within six months after receipt of the final denial. 28 U.S.C. § 2401(b), as amended (Supp.1976 at 277). As defendants properly have pointed out, the determination of when a claim accrues for the purposes of beginning the running of the statute of limitations is a federal question. Portis v. United States, 483 F.2d 670 (4th Cir. 1973); Hungerford v. United States, 307 F.2d 99 (9th Cir. 1962); Winston Bros. Co. v. United States, 371 F.Supp. 130 (D.Minn.1973). For the existence of a cause of action upon which the federal statute of limitations is to operate, however, one must look to state law. 28" }, { "docid": "2921858", "title": "", "text": "first accrues under § 2462 to enforce a civil penalty imposed under the Export Administration Act (“EAA”), 50 U.S.C.App. § 2401 et seq., from the date of the assessment of the administrative penalty, rather than from the date of the predicate violation. The court reasoned that a cause of action does not “accrue,” in the ordinary sense of that word, until a suit may be maintained thereon, and thus, “a claim for ‘enforcement’ of an administrative penalty cannot possibly ‘accrue’ until there is a penalty to be enforced.” Meyer, 808 F.2d at 914. Tracking the rationale of the Supreme Court in Crown Coat Front, the Meyer court placed great significance in the fact that the EAA prohibited the government from commencing suit in the district court until a penalty had been assessed and reduced to an administrative judgment. Id. Section 2410(f) of the EAA provides — with language similar to that used in § 193(b), the statute at issue in this litigation — that “in the event of the failure of any person to pay a penalty imposed pursuant to [the antiboycott provisions of the EAA], a civil action for the recovery thereof may ... be brought in the name of the United States.” This language mirrors § 193(b), the statute at issue in this litigation. The First Circuit concluded that' [t]his language alone strongly suggests— indeed, requires — that the Department [of Commerce] refrain from initiating a civil suit until the appropriate administrative authority has imposed a sanction which the respondent has thereafter refused to satisfy. Meyer, 808 F.2d at 914. Similarly, in United States Department of Labor v. Old Ben Coal Co., 676 F.2d 259 (7th Cir.1982), the Seventh Circuit held that, in the context of the Federal Coal Mine Health and Safety Act, 30 U.S.C. § 801 et seq., the limitations provision of § 2462 did not begin to run until an administrative proceeding had concluded. Pursuant to 30 U.S.C. § 819(a)(4), the Secretary of Labor could petition the district court to enforce a civil penalty “[i]f the person against whom a civil penalty is assessed fails" }, { "docid": "2921869", "title": "", "text": "28 U.S.C. § 2401(a) “is not an appealing result”). The First Circuit’s concern is quite apt under these circumstances: The concern that 28 U.S.C. § 2462 could pluck an enforcement suit from the vine before it had even ripened enough to be brought is by no means theoretical. According td the Fifth Circuit’s construction of 28 U.S.C. § 2462, the Department would have a total of five years from the date of a statutory violation within which to uncover the infraction, conduct the necessary investigation, issue a charging letter, and wend its way through the (often lengthy) administrativé process. A suspected violator would, in the straitened circumstances made possible by the Core court, have considerable incentive to employ the available procedures to work delay — not a particularly difficult task in- view of the marked resemblance between the conduct of modern administrative litigation and King Minos’s labyrinth in ancient Crete. Meyer, 808 F.2d at 919, This court accordingly holds that, under the Packers Act, when an assessment of a civil penalty through an administrative proceeding is a prerequisite to the initiation of an enforcement action in a federal district court, the five-year statute of limitations imposed under § 2462 begins to run, for purposes of bringing an enforcement action under the Packers Act, only when a final administrative decision has been issued, and not when the underlying violation of the statute has occurred. As applied to this case, § 193(b) mandates that an action to enforce a civil penalty in the district courts must await the imposition of a civil penalty in an administrative proceeding and the failure on the part of a violator to pay such penalty. Thus, the statute of limitations established under § 2462 does not begin to run, as argued by defendants, on the date of the predicate violations. (2) Date of Third Circuit’s Denial of Defendants’ Petition for Review Defendants alternatively argue that the date on which the § 2462 time limitation began to run in this case was November 27, 1989, when the defendants’ petition for review was denied by the Third Circuit. In" }, { "docid": "2921855", "title": "", "text": "government’s action to enforce a civil penalty, instituted on August 27,1996, is time-barred pursuant to the five-year statute of limitations imposed under § 2462. By contrast, the government argues that pursuant to the terms of the May 22, 1991 Order, its cause of action did not begin to accrue until ninety-days after the defendants were served with a copy of the order, September 2, 1991 with respect to Burke, and September 3, 1991 with respect to GAV. Thus, the United States necessarily argues that the May 22, 1991 Order incorporated that portion of the January 19, 1989 Order which allowed the defendants to pay the civil penalty within ninety-days of the date of the order. These contentions will be discussed in turn. (1) Date of Predicate Violation or Date of Assessment of Civil Penalty Defendants first argue that the statute of limitations began to run from the date of the predicate violation of the Packers Act. The issue of when the § 2462 five-year limitation begins to run for purposes of enforcing civil penalties has been the subject of various federal cases, albeit in the context of statutes other than the Packers Act. Moreover, these eases have not been altogether consistent in their application of § 2462. In Crown Coat Front Co. v. United States, 386 U.S. 503, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967), a private litigant sued the United States for an adjustment to a government contract. Pursuant to the terms of the government contract, a private party’s right to sue in court was made expressly contingent upon exhaustion of administrative remedies. Id. at 511-12. The limitations provision at issue, 28 U.S.C. § 2401(a), similar to 28 U.S.C. § 2462, read as follows: Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The plaintiff brought an action in federal court more than six years after it completed performance of the contract, but less than six years from the date of the final administrative decision. Id. at 508. Based upon the fact" }, { "docid": "17915849", "title": "", "text": "unsecured debts of the Debtor are far in excess of the statutory cap for relief under Chapter 13. Therefore, the Government is entitled to the relief it seeks as a matter of law, that is the dismissal of the Debtor’s Chapter 13 case. In opposition, the Debtor contends that the claim of the Government is unenforceable because it is barred by the applicable statute of limitation of 28 U.S.C. § 2462, which provides, Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon. The Debtor contends that the statute of limitations began to run when the civil money penalty accrued in July 1990 when the last underlying violations of the federal banking laws and regulations occurred. Since the civil enforcement was not filed by the Government until 1998, the debts represented by the civil money penalty are no longer enforceable because they are barred by the five year statute of limitation. This proposition of the Debtor is challenged by the Government which contends that the statute runs from the entry of the order by the Court of Appeals which affirmed the final decision of the Board of Directors of the FDIC and not from the date of the last violation of the banking laws and regulations by the Debtor. The case law which considered the proper application of the statute of limitations with one exception uniformly recognized that under the statutory scheme involved there are in fact two limitation periods. One applies to the administrative action to assess civil money penalty and a separate limitation period for the commencement of the actions to collect the assessed civil money penalty. United States Department of Labor v. Old Ben Coal Co., 676 F.2d 259, 261 (7th Cir.1982); United States v. Meyer, 808 F.2d 912" }, { "docid": "2921860", "title": "", "text": "to pay the penalty within the time prescribed in such order ____” Accordingly, the Seventh Circuit, also relying on Crown Coat, reasoned as follows: The Coal Act states specifically that the Secretary shall file a petition for enforcement of the order assessing the civil penalty only if the person against whom the penalty was assessed fails to pay it within the time prescribed in the order, '30 U.S.C. § 819(a)(4). Obviously, an administrative agency order must exist before the Secretary can file a district court action to enforce it. Therefore, if 28 U.S.C. § 2462 applies to the district court proceeding the limitations period begins to run when the administrative order becomes final. Old Ben Coal, 676 F.2d at 261. Defendants in this action rely primarily on Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 73 S.Ct. 580, 97 L.Ed. 821 (1953), and United States v. Core Laboratories, Inc., 759 F.2d 480 (5th Cir.1985), to support their initial contention that the § 2462 five-year time limitations period began to run from the date of the underlying Packers Act violation. In Core Laboratories, as in Meyer, the United States instituted suit to recover civil penalties imposed under the EAA. 759 F.2d at 481. Unlike Meyer, however, thé Fifth Circuit Court of Appeals held that the enforcement suit was time-barred since § 2462, as applied to the EAA, began to run from the date of the underlying violation, rather than from the date of the administrative assessment of the penalty. Id. at 483. The court noted, in rather broad fashion, that a review of the cases involving § 2462 and its predecessors “clearly demonstrates that the date of the underlying violation has been accepted without question as the date when the claim first accrued, and, therefore, as the date on which the statute began to run.” Id. at 482. It is questionable, however, whether the cases cited and relied upon by the Fifth Circuit were as clearly supportive of its holding as the court believed. For instance, the Fifth Circuit’s reliance on United States v. Athlone Industries, Inc., 746 F.2d 977" }, { "docid": "1962504", "title": "", "text": "interpretation, the court continued, “accord[ed] with the obvious proposition that a claim for ‘enforcement’ of an administrative penalty cannot possibly ‘accrue’ until there is a penalty to be enforced.” Id. The definition of the term' “enforcement” bolstered this proposition because that “noun by definition (‘compulsion ... forcible urging ... the compelling of the fulfillment’) presupposes the existence of an- actual penalty to be enforced.” Id. at 915 (quoting Webster’s Third New International Dictionary 751 (1981) (omissions in original)). Beyond Section 2462 itself, the court also pointed to the statutory language of the EAA, which provided that “in the event of the failure of any person to pay a penalty imposed pursuant to [the antiboy-cott provisions of the EAA], a civil action for the recovery thereof may ... be brought in the name of the United States.” Id. at 914 (quoting 50 U.S.C. App. § 2410(f) (1982) (alterations and omissions in .original)). The court read this language as requiring “the Department [to] refrain from initiating a civil suit until the appropriate administrative authority has imposed a sanction which the respondent has thereafter refused to satisfy.” Id. Based on these provisions, the court concluded that, by Section 2462’s plain language and the plain language of the EAA, the statute of limitations to enforce a penalty under the EAA did not begin to run until the administrative penalty had been imposed. Id. Other circuit courts have reached the same conclusion based on the plain language of Section 2462 in connection with different statutes. In U.S. Department of Labor v. Old Ben Coal Co., 676 F.2d 259, 261 (7th Cir. 1982), the Seventh Circuit reversed a district court’s holding that an enforcement action was time-barred because the underlying violation occurred more than five years before the government filed the action. The court reasoned that “[a] statute of limitations cannot begin to run until there is a right to bring an action.” Id. at 261. It elaborated: The statute of limitations at 28 U.S.C. § 2462 does not begin to run until “the date when the claim first accrued.” In the context of the Coal" }, { "docid": "1962513", "title": "", "text": "as an enforceable claim or right” (10th ed. 2014), a definition that mirrors those cited in Meyer and Mohn. See Meyer, 808 F.2d at 914; Mohn, 465 F.3d at 654. Thus, Section 2462 could also be read as follows: “an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first [came into existence as an enforceable claim or right].” As the First, Sixth, and Seventh Circuits have noted, however, a claim to enforce a penalty does not come into existence until there is an actual penalty to enforce. See Meyer, 808 F.2d at 914 (“[N]o suit to recover a civil penalty can be mounted ... unless and until the penalty has first been assessed administratively.”); Mohn, 465 F.3d at 654 (“The SEC simply had no order to enforce until it issued the ... order affirming the NASD sanctions.”); Old Ben Coal, 676 F.2d at 261 (“Obviously an administrative agency order must exist before the Secretary can file a district court action to enforce it.”). Indeed, the term “enforcement” in Section 2462 “presupposes the existence of an actual penalty to be enforced.” Meyer, 808 F.2d at 914. Therefore, by the plain meaning of the terms “accrue” and “enforcement,” Section 2462’s limitations period begins to run on the FCC’s action to enforce a penalty when the FCC initially imposes a forfeiture penalty. See Gabelli v. S.E.C., 568 U.S. 442, 133 S.Ct. 1216, 1220, 185 L.Ed.2d 297 (2013) (“Thus the standard rule is that a claim accrues when the plaintiff has a complete and present cause of action.” (citations omitted) (emphasis added)). Furthermore, like in Meyer, Godbout-Bandal, and Old Ben Coal, this reading of Section 2462 comports with the provisions of the underlying statute, the Communications Act. Specifically, Section 503(b)(4) authorizes the FCC to impose a “forfeiture penalty,” but only after issuing an NAL and giving the alleged violator an opportunity to challenge it. 27 U.S.C. § 503(b)(4). It further provides that a “forfeiture penalty determined under [Section 503(b)(4)] shall" }, { "docid": "20949343", "title": "", "text": "course charted by the Seventh Circuit in United States Department of Labor v. Old Ben Coal Co., 676 F.2d 259 (7th Cir.1982), a case closely in point. There, a federal agency sued to collect a penalty assessed against a colliery for infractions of the Federal Coal Mine Health and Safety Act, 30 U.S.C. §§ 801 et seq. The district court dismissed the action as time-barred under 28 U.S.C. § 2462, suit having been brought more than five years after the underlying statutory violations had occurred. The court of appeals reversed, holding that where administrative proceedings are required before a court action may be brought, the limitations period prescribed by § 2462 starts to run only upon the conclusion of such proceedings: A statute of limitations cannot begin to run until there is a right to bring an action____ The statute of limitations at 28 U.S.C. § 2462 does not begin to run until “the date when the claim first accrued.” In the context of the Coal Act the district court claim accrues only after the administrative proceeding has ended, a penalty has been assessed, and the violator has failed to pay the penalty. The Coal Act states specifically that the Secretary shall file a petition for enforcement of the order assessing the civil penalty only if the person against whom the penalty was assessed fails to pay it within the time prescribed in the order____ Obviously an administrative agency order must exist before the Secretary can file a district court action to enforce it. Old Ben, 676 F.2d at 261 (citations omitted). The logic of Old Ben seems compelling. And, it tracks harmoniously with the Court’s rationale as expressed in Crown Coat, and with the approach which we previously embraced in Hughes House Nursing Home, supra. To the contrary, the understanding of 28 U.S.C. § 2462 urged by Meyer (and adopted in Core) creates a wretched sort of anomaly. Under that construction, the Department’s enforcement action became time-barred no later than September 21, 1983 — approximately one month after Meyer filed his administrative appeal of the AU’s initial decision and" }, { "docid": "5906221", "title": "", "text": "could not collect on the debt because the statute of limitations set forth in 28 U.S.C. § 2462 had run. II. Donohoo seeks review of only one issue: whether the district court erred in implicitly finding that the government’s claim against him is not barred by the statute of limitations. We review the district court’s grant of summary judgment de novo. See Lynn v. Deaconess Med. Ctr.-West Campus, 160 F.3d 484, 486 (8th Cir.1998). The government proceeds against Donohoo pursuant to § 1818(i)(l) which allows the “appropriate Federal banking agency” to seek “enforcement of any effective and outstanding notice or order issued under this section” in district court. This statutory provision is not equipped with its own statute of limitations; thus, the general statute of limitations for collection of civil penalties, 28 U.S.C. § 2462, applies. Section 2462 states as follows: Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon. 28 U.S.C. § 2462. Donohoo argues that the government’s claim for enforcement of the penalties assessed against him by the FDIC is barred by this statute. He asks us to interpret the phrase “claim first accrued” to mean the date of the original violation for which the penalty was assessed, i.e., July, 1990. The government, in contrast, argues that the claim does not accrue until the administra-five proceedings assessing the penalties are completed. This question appears to be a matter of first impression in our circuit. The circuits are split on when a claim accrues under this statute of limitations. The Fifth Circuit favors Donohoo’s approach. See United States v. Core Labs. Inc., 759 F.2d 480 (5th Cir.1985). The Core court analyzed caselaw arising under the various predecessors to § 2462 and found that “[a] review of these cases clearly demonstrates" }, { "docid": "1962510", "title": "", "text": "seminal treatment of virtually this precise issue in Crown Coat Front Co. v. United States, 386 U.S. 503, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967).” Id. at 916. In Crown Coat, the Supreme Court construed 28 U.S.C. § 2401(a), which mirrored Section 2462 by providing that certain civil actions “shall be barred unless the complaint is filed within six years after the right of action first accrues.” Crown Coat, 386 U.S. at 507, 87 S.Ct. 1177 (quoting 28 U.S.C. § 2401(a)). The plaintiff had brought a claim more than six years after the underlying events but within six years of the final administrative decision on the claim. Id. at 508, 87 S.Ct. 1177. The Court held that the plaintiffs “right to bring a civil aetion first accrue[d] when the [agency] finally ruled on its claim.” Id. at 522, 87 S.Ct. 1177. The Meyer court also deemed the cases cited by the Fifth Circuit to be “off the mark.” 808 F.2d at 920. It first determined that the majority of those eases “involve situations bereft of the key ingredient shared by Crown Coat and by the EAA: the necessity for allowing an administrative proceeding to run its course as a precondition to the commencement of suit.” Id.) see also id. at 920 n.8 (collecting cases that fell within this category). The next group of cases “involved situations where prosecutorial determinations, rather than adjudicatory administrative proceedings, constituted the precondition to suit.” Id. (finding that Athlone Industries, 746 F.2d 977, Advance Machine, 547 F.Supp. 1085, Ancorp, 516 F.2d 198, and Lukens Steel, 454 F.Supp. 1182 fell into this category). Because such administrative decisions “are not in any sense adjudicative ,.. [but] comprise nothing more or less than decisions to bring suit,” they differed markedly from the EAA’s process for imposing a sanction and thus were of little value on the statute of limitations question. Id. The court distinguished the remaining cases on more fact-specific grounds. Id. at 921 (distinguishing Durning, 86 F.2d 91, because, there, “more than five years had elapsed since the assessment of the administrative penalty,” and C & R Trucking," }, { "docid": "2921859", "title": "", "text": "a penalty imposed pursuant to [the antiboycott provisions of the EAA], a civil action for the recovery thereof may ... be brought in the name of the United States.” This language mirrors § 193(b), the statute at issue in this litigation. The First Circuit concluded that' [t]his language alone strongly suggests— indeed, requires — that the Department [of Commerce] refrain from initiating a civil suit until the appropriate administrative authority has imposed a sanction which the respondent has thereafter refused to satisfy. Meyer, 808 F.2d at 914. Similarly, in United States Department of Labor v. Old Ben Coal Co., 676 F.2d 259 (7th Cir.1982), the Seventh Circuit held that, in the context of the Federal Coal Mine Health and Safety Act, 30 U.S.C. § 801 et seq., the limitations provision of § 2462 did not begin to run until an administrative proceeding had concluded. Pursuant to 30 U.S.C. § 819(a)(4), the Secretary of Labor could petition the district court to enforce a civil penalty “[i]f the person against whom a civil penalty is assessed fails to pay the penalty within the time prescribed in such order ____” Accordingly, the Seventh Circuit, also relying on Crown Coat, reasoned as follows: The Coal Act states specifically that the Secretary shall file a petition for enforcement of the order assessing the civil penalty only if the person against whom the penalty was assessed fails to pay it within the time prescribed in the order, '30 U.S.C. § 819(a)(4). Obviously, an administrative agency order must exist before the Secretary can file a district court action to enforce it. Therefore, if 28 U.S.C. § 2462 applies to the district court proceeding the limitations period begins to run when the administrative order becomes final. Old Ben Coal, 676 F.2d at 261. Defendants in this action rely primarily on Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 73 S.Ct. 580, 97 L.Ed. 821 (1953), and United States v. Core Laboratories, Inc., 759 F.2d 480 (5th Cir.1985), to support their initial contention that the § 2462 five-year time limitations period began to run from the date of" }, { "docid": "14133067", "title": "", "text": "GEE, Circuit Judge: The issue for decision is when a particular statute of limitations begins to run, that of 28 U.S.C. § 2462. Facts The Export Administration Act, 50 U.S. C.App. § 2401 et seq. (1984) contains anti-boycott provisions. The Commerce Department charged Core Laboratories, Inc. (Core) with violating these provisions on various dates, the last alleged violation occurring on August 1,1978. Administrative proceedings on these charges began on November 19, 1979. On March 14, 1983, the Assistant Secretary for Trade Administration imposed a civil penalty on Core of $81,300 for its antiboycott violations. Core refused to pay the penalty. Seven months later, on January 26, 1984, the government began this action to enforce it. Core defended by asserting that the five-year limitation period of 28 U.S.C. § 2462 had run and that the government’s action was thus time-barred. The trial court apparently agreed; it granted Core’s motion for judgment on the pleadings. Although the trial court offered no explanation for its action, both parties have assumed that judgment for Core was premised on Core’s limitations defense. From this judgment, the government appeals. Analysis It is undisputed that 28 U.S.C. § 2462 applies to the government’s action. That section provides as follows: § 2462. Time for commencing proceedings Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon. The issue for decision is the meaning of “the date when the claim first accrued.” Core contends that this is the date on which the violation(s) occurred. The government contends that “the date when the claim first accrued” is the date of the final administrative order assessing the penalty. Despite numerous citations offered by the government on brief, only one case, United States Department of Labor v. Old Ben Coal Company, 676 F.2d 259" } ]

[ { "docid": "23450264", "title": "", "text": "Prior to November 2008, however, the Guidelines definition of a drug trafficking offense required that the defendant actually possess the drugs or cause them to be transferred, facts which are not necessarily proven when a defendant is convicted of an offer to sell. The Sentencing Guidelines were subsequently amended to add “offer[s] to sell” to the definition of a drug trafficking offense. Beginning with the 2008 edition of the Sentencing Guidelines, “[d]rug trafficking offense” means an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. Following this change, a Texas conviction for delivery of a controlled substance— whether by active transfer, by constructive transfer, or by offer to sell — necessarily qualifies as a drug trafficking offense under the Sentencing Guidelines. Accordingly, the district court did not err by applying the felony drug trafficking enhancement to Marban’s sentence. The judgment of the district court is AFFIRMED. . See 8 U.S.C. §§ 1326(a)-(b). . See U.S.S.G. § 2L1.2(b)(l)(A)(i) (2008). . See Tex. Health & Safety Code § 481.112(a). . U.S. Const, art. I, § 9, cl. 3. . Puckett v. United States, - U.S. -, 129 S.Ct. 1423, 1428-29, 173 L.Ed.2d 266 (2009) (citing Fed.R.Crim.P. 52(b)); United States v. Castillo-Estevez, 597 F.3d 238, 240 (5th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 457, 178 L.Ed.2d 287 (2010). . Puckett, 129 S.Ct. at 1429. . See Castillo-Estevez, 597 F.3d at 241 (expressly reserving this question). . Compare, e.g., United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006) (holding that the Ex Post Facto Clause does not apply to the advisory Sentencing Guidelines), and United States v. Barton, 455 F.3d 649, 655 n. 4 (6th Cir.2006) (same), with United States v. Turner, 548 F.3d 1094, 1099-1100 (D.C.Cir.2008) (holding that the Ex Post Facto Clause prohibits retroactive application Sentencing Guidelines that would recommend a greater sentence), United States v. Ortiz, 621 F.3d 82," } ]

[ { "docid": "22913937", "title": "", "text": "a controlled substance offense under the Guidelines, because “the conviction [in Ford] was for possession with the intent to deliver rather than just delivery or transportation.” We concluded that possession with the intent to deliver, as opposed to mere delivery or transport, cannot reasonably be distinguished from “possession of a controlled substance ... with intent to ... distribute” under the Guidelines’ definition of a controlled substance offense. Price was not charged with possession but only with knowing and intentional actual and constructive delivery of cocaine and, as the Government concedes, “the language of the indictment allowed conviction for offering to sell a controlled substance. Moreover, the written judgment following Price’s plea of guilty did not specify the manner in which Price delivered the cocaine.” The court erred in assigning a base offense level of 24 under § 2K2.1(a)(2) because one of Price’s prior drug convictions could have been merely for an offer to sell under § 481.112 of the Code. This error is “plain” because the current law is clear, as we discuss above. We have held that a mere offer to sell, absent possession, does not fit within the Guidelines’ definition of “the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance.” We recognized in Palacios that “neither ‘the transportation of a controlled substance for personal use’ nor ‘offers to transport, sell, furnish, administer or give away a controlled substance’ is covered by the definition of drug trafficking.” We similarly held in Gonzales and GarzcG-Lopez. Although those cases address drug trafficking and not the definition of controlled substance offense under the Guidelines, our holding in Ford recognizes that the Guidelines’ definitions of drug trafficking and controlled substance offense are nearly identical, as we discuss above. The sentencing error affects Price’s substantial rights because Price “ ‘can show a reasonable probability that, but for the district court’s misapplication of the Guidelines, [he] would have received a lesser sentence.’ ” Without the sentence enhancement under § 2K2.1(a)(2), Price alleges that he would have received a base offense level of 23 or lower," }, { "docid": "22911808", "title": "", "text": "in United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.), in which we stated that offering to sell a controlled substance lies outside section 2L1.2’s definition of \"drug trafficking offense,” since section 2L1.2 \"covers only the manufacture, import, export, distribution, or dispensing of a controlled substance (or possession with the intent to do any of these things).” Gonzales, 484 F.3d at 714-15 (quoting Garza-Lopez, 410 F.3d at 274). . As previously stated, an \"aggravated felony” for the purposes of cancellation of removal is defined as including \"drug-trafficking crimes” as defined in 18 U.S.C. § 924(c), and drug trafficking crimes are in turn defined as \"any felony punishable under the Controlled Substance Act.” . In Ford, the Court treated the Guidelines definitions of \"controlled substance offense” and \"drug trafficking offense” as identical for its purposes. 509 F.3d at 717 n.2. Vasquez-Martinez argues that the minor textual differences between the two Guidelines definitions matters in this case because our precedent establishes that \"offers to sell” do not fall within the definition of \"drug trafficking offenses.” This argument does not convince us, as it is irrelevant to whether § 2K2.1’s definition of a controlled substance offense correlates with the definition of \"drug trafficking crimes” as set out in the Controlled Substances Act." }, { "docid": "22913941", "title": "", "text": "supra note 10. . 509 F.3d 714 (5th Cir.2007) (on petition for rehearing). . Id. at 716 (addressing a controlled substance offense and recognizing that \"[i]n two closely analogous decisions, this court held similar convictions to be broader than a nearly identical USSG definition of another offense [drug trafficking] subject to sentencing enhancement” and discussing the two decisions, Gonzales and Garza-Lopez). . Id. at 716. . Prior to rehearing, we held in United States v. Ford, 2007 WL 1501745 (5th Cir.2007), that an offense in Texas for delivery of a controlled substance is broader than the Guidelines’ sentence enhancement for distribution of a controlled substance. In United States v. Palacios-Quinonez, 431 F.3d 471 (5th Cir.2005), we held that an offense involving “purchase of a drug for sale” — a crime necessarily involving possession — \"would satisfy the elements of ‘possession with the intent to distribute’ under the Guidelines.” Id. at 476. Following rehearing and after the parties submitted their briefs in this case, we withdrew the earlier Ford opinion. See 509 F.3d 714. . 509 F.3d at 717. . Id. . Government’s Brief at 7. . United States v. Valles, 484 F.3d 745, 759 (5th Cir.2007) (\"An error is 'plain' if it is clear under current law.”), cert. denied, - U.S. -, 127 S.Ct. 3025, 168 L.Ed.2d 745 (2007), and petition for cert. filed (Jul. 6, 2007) (No. 07-8373), and cert. denied, - U.S. -, 128 S.Ct. 238, 169 L.Ed.2d 181 (2007). . U.S.S.G. § 2L1.2, Cmt. 1(B)(iv); infra notes 22-24 and accompanying text. . 431 F.3d at 476 (quoting Garza-Lopez, 410 F.3d at 274 (emphasis added)). . 484 F.3d at 714-15 (\"We have previously stated that offering to sell a controlled substance lies outside section 2L1.2's definition of ‘drug trafficking offense,' since section 2L1.2 'covers only the manufacture, import, export, distribution, or dispensing of a controlled substance (or possession with the intent to do any of these things.)’ ” (quoting Garza-Lopez, 410 F.3d at 274)). . 410 F.3d. at 274 (transport of controlled substance for personal use and offers to sell controlled substances do not fall within the Guidelines’" }, { "docid": "22911807", "title": "", "text": "BIA's evidentiary conclusion that the judgment of conviction reflects the conduct charged in the indictment. As discussed, the bar of § 1252(a)(2)(c) does not permit us to do so. . § 1252(a)(2)(D) reads: \"Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.” . For purposes of § 924(c)(2) the crimes the Controlled Substances Act defines as \"felonies” are those crimes to which it assigns a punishment exceeding one year’s imprisonment. Lopez v. Gonzales, 549 U.S. 47, 56 n. 7, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). . \"Delivery” in the federal statute is defined as \"the actual, constructive, or attempted transfer of a controlled substance or a listed chemical, whether or not there exists an agency relationship.” 21 U.S.C. § 802(8). . Gonzales in turn relied on our holding in United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.), in which we stated that offering to sell a controlled substance lies outside section 2L1.2’s definition of \"drug trafficking offense,” since section 2L1.2 \"covers only the manufacture, import, export, distribution, or dispensing of a controlled substance (or possession with the intent to do any of these things).” Gonzales, 484 F.3d at 714-15 (quoting Garza-Lopez, 410 F.3d at 274). . As previously stated, an \"aggravated felony” for the purposes of cancellation of removal is defined as including \"drug-trafficking crimes” as defined in 18 U.S.C. § 924(c), and drug trafficking crimes are in turn defined as \"any felony punishable under the Controlled Substance Act.” . In Ford, the Court treated the Guidelines definitions of \"controlled substance offense” and \"drug trafficking offense” as identical for its purposes. 509 F.3d at 717 n.2. Vasquez-Martinez argues that the minor textual differences between the two Guidelines definitions matters in this case because our precedent establishes that \"offers to sell” do not fall within the definition of \"drug trafficking offenses.” This" }, { "docid": "22906065", "title": "", "text": "United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.2005). . Gonzales held that the Texas offense of \"delivery” is not a \"drug trafficking offense” subject to federal sentence enhancement. 484 F.3d at 714-15. The federal sentencing guideline offense in Gonzales (\"drug trafficking offense”) has an identical definition as the guideline offense in this case (\"controlled substance offense”). Compare USSG §§ 4B 1.2(b), 2K2.1 cmt. n. 1 (defining \"controlled substance offense”) with USSG § 2L1.2 cmt. n. l(B)(iv) (defining \"drug trafficking offense.”). . Texas Health & Safety Code § 481.002(8): \" ‘Deliver’ means to transfer, actually or constructively, to another a controlled substance ... [or to] offer[ ] to sell a controlled substance . Gonzales, 484 F.3d at 714-15. . Id. . See, e.g., Taylor v. Texas, 106 S.W.3d 827, 830-31 (Tex.App.2003). . USSG§ 4B 1.2(b) states: The term “controlled substance offense” means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. Under a straightforward reading of the statute, possession with intent to distribute includes at least two elements: \"simple possession” and “an intent to distribute.” See, e.g., United States v. Lacy, 446 F.3d 448, 454 (3d Cir.2006) (“Thus, the elements of the base offense are (1) knowing or intentional (2) possession (3) with intent to distribute (4) a controlled substance.”) (describing a possession with intent to distribute controlled substance offense under federal law); United States v. Montanez, 442 F.3d 485, 492 (6th Cir.2006) (\"It is abundantly clear from the plain language of the statutes of conviction that each contains only the element of 'possession' and does not contain the element of 'intent to distribute.’ ”) . See, e.g., Pitts v. Texas, 731 S.W.2d 687, 691 (Tex.App.1987) (citing Gonzales v. Texas, 638 S.W.2d 41, 44 (Tex.App.1982)). Whether possession is involved does not change the truth of this statement, because an offense of \"delivery,” including an \"offer" }, { "docid": "6127030", "title": "", "text": "in this circuit, we are not the first circuit to confront this question. In United States v. Vickers, the Fifth Circuit held that a conviction for offering to sell drugs “involved” drug distribution and was thus a “serious drug offense” within the meaning of the ACCA. 540 F.3d 356, 364-66 (5th Cir.2008). Bynum urges us to reject Vickers and interpret the ACCA’s definition of “serious drug offense” narrowly to conform to the United States Sentencing Guidelines’ definitions of “controlled substance offense” and “drug trafficking offense.” The Fifth Circuit specifically refused to construe the ACCA’s definition of “serious drug offense” to conform to the sentencing guidelines’ definitions of “controlled substance offense” and “drug trafficking offense” under U.S.S.G. §§ 2L1.2 and 4B1.2(b). See id. at 364-66 & n. 3 (citing United States v. Price, 516 F.3d 285 (5th Cir.2008)). The Fifth Circuit reasoned that the guidelines’ definitions limit the relevant enhancements’ applicability to offenses that “prohibit” the manufacture, distribution, and possession of drugs, whereas the ACCA requires only that predicate offenses “involve” the manufacture, distribution, or possession of drugs. See id. We similarly reject Bynum’s argument that the ACCA’s definition of “serious drug offense” should be interpreted narrowly to conform to the sentencing guidelines’ definitions of “controlled substance offense” and “drug trafficking offense.” The sentencing guidelines expressly caution that the ACCA’s definition of “serious drug offense” is “not identical to the definition[ ] of ... ‘controlled substance offense’ ” given in § 4B1.2. U.S.S.G. § 4B1.4 cmt. n. 1. Unlike the sentencing guidelines, 18 U.S.C. § 924(e)(2)(A)(ii) uses the term “involving,” an expansive term that requires only that the conviction be “related to or connected with” drug manufacture, distribution, or possession, as opposed to including those acts as an element of the offense. Vickers, 540 F.3d at 365 (quoting United States v. Winbush, 407 F.3d 703, 707 (5th Cir.2005)). Knowingly offering to sell drugs is sufficiently “related to or connected with” drug distribution within the meaning of the ACCA because those who knowingly offer to sell drugs “intentionally enter the highly dangerous drug distribution world.” See id. at 365-66 (quoting Winbush, 407" }, { "docid": "22913942", "title": "", "text": "F.3d at 717. . Id. . Government’s Brief at 7. . United States v. Valles, 484 F.3d 745, 759 (5th Cir.2007) (\"An error is 'plain' if it is clear under current law.”), cert. denied, - U.S. -, 127 S.Ct. 3025, 168 L.Ed.2d 745 (2007), and petition for cert. filed (Jul. 6, 2007) (No. 07-8373), and cert. denied, - U.S. -, 128 S.Ct. 238, 169 L.Ed.2d 181 (2007). . U.S.S.G. § 2L1.2, Cmt. 1(B)(iv); infra notes 22-24 and accompanying text. . 431 F.3d at 476 (quoting Garza-Lopez, 410 F.3d at 274 (emphasis added)). . 484 F.3d at 714-15 (\"We have previously stated that offering to sell a controlled substance lies outside section 2L1.2's definition of ‘drug trafficking offense,' since section 2L1.2 'covers only the manufacture, import, export, distribution, or dispensing of a controlled substance (or possession with the intent to do any of these things.)’ ” (quoting Garza-Lopez, 410 F.3d at 274)). . 410 F.3d. at 274 (transport of controlled substance for personal use and offers to sell controlled substances do not fall within the Guidelines’ definition of \"drug trafficking offense”). . See supra note 14 and accompanying text. . Gonzales, 484 F.3d at 716 (quoting Garza-Lopez, 410 F.3d at 275). . United States v. Lopez-Urbina, 434 F.3d 750, 762 (5th Cir.2005) (quoting United States v. Mares, 402 F.3d 511, 521 (5th Cir.2005)). . We recognize the potential conflict between pre- and post-Booker decisions addressing the question of \"affecting substantial rights.” In our pre-Booker case United States v. Ravitch, we asked \" 'if the case were remanded, [whether] the trial judge could reinstate the same sentence.’ ” 128 F.3d 865, 869 (5th Cir.1997) (emphasis added) (quoting United States v. Brunson, 915 F.2d 942, 944 (5th Cir.1990)). If the judge could reinstate the sentence, we held, we would find no prejudice under plain error review. Bost-Booker, in United States v. Villegas, we held that the question of substantial rights turns on \"whether the defendant can show a reasonable probability that, but for the district court's misapplication of the Guidelines, [the defendant] would have received a lesser sentence.” 404 F.3d 355, 364 (5th" }, { "docid": "5622475", "title": "", "text": "United States v. Lopez-Cano, 516 Fed.Appx. 350, 353 (5th Cir. 2013); United States v. Valdavinos-Tor res, 704 F.3d 679, 684 (9th Cir. 2012); see also United States v. Leiva-Deras, 359 F.3d 183, 189 (2d Cir. 2004) (holding that a state conviction is a “drug trafficking offense” because the trafficked drug is listed in a CSA schedule). The elements of a predicate “drug trafficking offense” under the Guidelines are largely the same as the elements of a predicate “controlled substance offense” under the Guidelines—the definitions of the two offenses are identical in all pertinent ways. Compare U.S.S.G. § 4B1.2(b) (defining a “controlled substance offense” as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”), with U.S.S.G. § 2L1.2, cmt., n. (l)(B)(iv) (defining a “drug trafficking offense” as “an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”); see also United States v. Ford, 509 F.3d 714, 716 (5th Cir. 2007) (recognizing that the terms “controlled substance offense” and “drug trafficking offense” have “nearly identical USSG definition[s]” and using past decisions interpreting “drug trafficking offense” to analyze a challenge involving a “controlled substance offense” because the issues raised in those past decisions were “closely analogous” to the issue in the present case). If Mr. Barrow’s more recent conviction is for violating a state statute that sweeps broader than the federal predicate in either of these two ways, it may not be used to enhance his sentence pursuant to section 2K2.1 of the Guidelines, c) Is Mr. Barrow’s More Recent Conviction a Predicate “Controlled Substance Offense”? Mr. Barrow’s more recent conviction is for a violation of New York Penal Law" }, { "docid": "13424041", "title": "", "text": "893 (5th Cir.1999). A violation occurs upon the “ ‘imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred.’ ” Id. (citation omitted). Because Castillo raises this argument for the first time on appeal, we review the district court’s application of the 2008 guidelines for plain error. United States v. Ricardo, 472 F.3d 277, 284 (5th Cir.2006). Accordingly, Castillo must show (1) error (2) that is plain and (3) that affects his substantial rights. Id. This court will correct plain errors only if they seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id. In United States v. Suarez, 911 F.2d 1016 (5th Cir.1990), this court noted that a sentence enhancement “based on an amendment to the guidelines effective after the offense was committed ‘would be an obvious ... violation’ of the ex post facto clause.” Id. at 1021 (citation omitted). For purposes of the sixteen-level enhancement, the 2007 guidelines defined a drug trafficking offense as one involving the “manufacture, import, export, distribution, or dispensing of a controlled substance.” U.S.S.G. § 2L1.2(b)(1)(A)(i), comment l(B)(iv) (2007 ed.). An amendment to the 2008 guidelines, however, expanded the definition of a drug trafficking offense to include an “offer to sell a controlled substance.” Id. (2008 ed.). Because New York law provides that a person is guilty of criminal sale of a controlled substance when, inter alia, he offers to sell a narcotic, N.Y. Penal Law §§ 220.39(1), 220.00(1), Castillo argues that his convictions qualify as drug trafficking offenses under the 2008 guidelines in effect at sentencing, but not under the 2007 guidelines in force when his offense occurred. Castillo thus contends that the sixteen-level enhancement of his sentence, based upon an amendment to the definition of “drug trafficking offense” that became effective after commission of his offense, is an ex post facto violation under Suarez. Castillo’s argument overlooks the Supreme Court’s subsequent decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered the sentencing guidelines merely advisory. In United States v. Rodarte-Vasquez, 488 F.3d 316" }, { "docid": "13424042", "title": "", "text": "of a controlled substance.” U.S.S.G. § 2L1.2(b)(1)(A)(i), comment l(B)(iv) (2007 ed.). An amendment to the 2008 guidelines, however, expanded the definition of a drug trafficking offense to include an “offer to sell a controlled substance.” Id. (2008 ed.). Because New York law provides that a person is guilty of criminal sale of a controlled substance when, inter alia, he offers to sell a narcotic, N.Y. Penal Law §§ 220.39(1), 220.00(1), Castillo argues that his convictions qualify as drug trafficking offenses under the 2008 guidelines in effect at sentencing, but not under the 2007 guidelines in force when his offense occurred. Castillo thus contends that the sixteen-level enhancement of his sentence, based upon an amendment to the definition of “drug trafficking offense” that became effective after commission of his offense, is an ex post facto violation under Suarez. Castillo’s argument overlooks the Supreme Court’s subsequent decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered the sentencing guidelines merely advisory. In United States v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir.2007) (Jones, C.J., concurring), it was observed that the now-advisory guidelines should not raise ex post facto concerns because “the sentence imposed by the court need not be harsher under later guidelines than it would have been under the guidelines in effect when the offense was committed.” Rodarte-Vasquez, 488 F.3d at 325. The Seventh Circuit adopted this view of the guidelines post-Booker in United States v. Demaree, 459 F.3d 791 (7th Cir.2006), holding that the Ex Post Facto Clause does not apply to sentencing guidelines amendments because it applies “only to laws and regulations that bind rather than advise.” Id. at 794. See also United States v. Barton, 455 F.3d 649, 655 n. 4 (6th Cir.2006) (“When the Guidelines were mandatory, defendants faced the very real prospect of enhanced sentences caused by changes in the Guidelines ... that occurred after they had committed their crimes. Now that the Guidelines are advisory, the Guidelines calculation provides no such guarantee of an increased sentence .... As such, the Ex Post Facto Clause itself is not implicated.”)." }, { "docid": "6127029", "title": "", "text": "drug offense” within the meaning of 18 U.S.C. § 924(e), it applied a modified categorical approach to determine whether Bynum was necessarily convicted under the offer-to-sell part of the statute or under the actual-sale part of the statute. After reviewing the transcripts of Bynum’s change-of-plea hearings, the district court concluded that Bynum’s Fourth Degree drug conviction necessarily arose under the actual-sale part of the statute. However, the court was unable to eliminate the possibility that the Third Degree drug conviction arose under the offer-to-sell part of the statute, and thus it sustained Bynum’s objection to the ACCA enhancement. If, as the Government argues, an offer to sell a controlled substance categorically “involves” distribution of a controlled substance within the meaning of the ACCA, then both Bynum’s Third and Fourth Degree drug convictions are qualifying offenses and Bynum should have been sentenced as an armed career criminal under the ACCA. Although the question of whether an offer to sell drugs “involves” drug distribution within the meaning of the ACCA appears to be one of first impression in this circuit, we are not the first circuit to confront this question. In United States v. Vickers, the Fifth Circuit held that a conviction for offering to sell drugs “involved” drug distribution and was thus a “serious drug offense” within the meaning of the ACCA. 540 F.3d 356, 364-66 (5th Cir.2008). Bynum urges us to reject Vickers and interpret the ACCA’s definition of “serious drug offense” narrowly to conform to the United States Sentencing Guidelines’ definitions of “controlled substance offense” and “drug trafficking offense.” The Fifth Circuit specifically refused to construe the ACCA’s definition of “serious drug offense” to conform to the sentencing guidelines’ definitions of “controlled substance offense” and “drug trafficking offense” under U.S.S.G. §§ 2L1.2 and 4B1.2(b). See id. at 364-66 & n. 3 (citing United States v. Price, 516 F.3d 285 (5th Cir.2008)). The Fifth Circuit reasoned that the guidelines’ definitions limit the relevant enhancements’ applicability to offenses that “prohibit” the manufacture, distribution, and possession of drugs, whereas the ACCA requires only that predicate offenses “involve” the manufacture, distribution, or possession" }, { "docid": "22906064", "title": "", "text": "as required by the guidelines.”). Palacios held that the “purchase” element under the California statutory offense is not broader, but narrower, than the “possession” element. Id. at 474, 476 n. 6 (“By contrast, to accomplish a purchase of a drug for sale, one must have at least constructive possession.”). Palacios’ holding regarding the relationship between the “purchase” element in a California statutory offense and “possession” element in the federal sentencing guidelines is completely irrelevant to the issue before us now. The majority’s decision finds no basis in law, ignores the fact that our original panel opinion was a logical consequence of Gonzales under the Taylor categorical approach, and creates irrational disparities in sentencing. For these reasons, I respectfully dissent. . That is, the state statute contains one or more crime definitions, or ways that the statute may be violated, that do not constitute a \"controlled substance offense” under USSG § 4B 1.2(b). The state statutory offense therefore \"encompasses activity that does not fall within the definition of” \"controlled substance offense” under USSG § 4B1.2(b). See United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.2005). . Gonzales held that the Texas offense of \"delivery” is not a \"drug trafficking offense” subject to federal sentence enhancement. 484 F.3d at 714-15. The federal sentencing guideline offense in Gonzales (\"drug trafficking offense”) has an identical definition as the guideline offense in this case (\"controlled substance offense”). Compare USSG §§ 4B 1.2(b), 2K2.1 cmt. n. 1 (defining \"controlled substance offense”) with USSG § 2L1.2 cmt. n. l(B)(iv) (defining \"drug trafficking offense.”). . Texas Health & Safety Code § 481.002(8): \" ‘Deliver’ means to transfer, actually or constructively, to another a controlled substance ... [or to] offer[ ] to sell a controlled substance . Gonzales, 484 F.3d at 714-15. . Id. . See, e.g., Taylor v. Texas, 106 S.W.3d 827, 830-31 (Tex.App.2003). . USSG§ 4B 1.2(b) states: The term “controlled substance offense” means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit" }, { "docid": "5622476", "title": "", "text": "or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”); see also United States v. Ford, 509 F.3d 714, 716 (5th Cir. 2007) (recognizing that the terms “controlled substance offense” and “drug trafficking offense” have “nearly identical USSG definition[s]” and using past decisions interpreting “drug trafficking offense” to analyze a challenge involving a “controlled substance offense” because the issues raised in those past decisions were “closely analogous” to the issue in the present case). If Mr. Barrow’s more recent conviction is for violating a state statute that sweeps broader than the federal predicate in either of these two ways, it may not be used to enhance his sentence pursuant to section 2K2.1 of the Guidelines, c) Is Mr. Barrow’s More Recent Conviction a Predicate “Controlled Substance Offense”? Mr. Barrow’s more recent conviction is for a violation of New York Penal Law § 220.31. The law reads: “A person is guilty of criminal sale of a controlled substance in the fifth degree when he knowingly and unlawfully sells a controlled substance. Criminal sale of a controlled substance in the fifth degree is a class D felony.” N.Y. Penal Law § 220.31 (West). In New York, a “conviction” is “the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument.” N.Y. Crim. Proc. Law § 1.20 (McKinney). The PSR only lists the dates of arrest and sentencing for the relevant convictions. See PSR at ¶ 40. Mr. Barrow was arrested on December 4, 2002 and sentenced on March 15, 2005. Id. Neither party presented evidence of when exactly his “conviction” occurred during the period between his arrest and sentencing. The first way a state statute may be broader than the generic crime—that it can be violated without sufficient intent to sell a controlled substance—is probably foreclosed by the" }, { "docid": "22906044", "title": "", "text": "and an “offer to sell” is not one of the acts included within the “drug trafficking offense” definition. Id. See also Tex. Health & Safety Code Ann. § 481.002(8) (defining “deliver”); Donley v. State, 140 S.W.3d 428, 429 (Tex.App.2004) (interpreting “delivery” as any actual transfer, constructive transfer, or offer to sell); Garza-Lopez, 410 F.3d at 273 (listing “offers to ... sell” as conduct outside USSG’s definition of “drug trafficking offense”). Neither of the above cases controls the outcome of this appeal. The significant distinction in this case is that unlike the two cases discussed above, the conviction here was for possession with the intent to deliver rather than just delivery or transportation. In the instant case, Ford’s indictment charged him with possession with intent to deliver. According to the USSG, the term “controlled substance offense” includes offenses that prohibit the “possession of a controlled substance ... with intent to ... distribute.” USSG § 4B1.2(b). We agree with the government that it is pure sophistry to distinguish between the conduct of one who possesses drugs with intent to deliver those drugs and one who possesses drugs with intent to distribute them. United States v. Palacios-Quinonez, 431 F.3d 471 (5th Cir.2005), demonstrates this point. In Palacios-Quinonez, the defendant had previously been convicted under a California statute that prohibited both possession of drugs for sale (which was conceded to be a drug trafficking offense) and purchase of drugs for purpose of sale. Because it was impossible to determine under which prong Palacios-Quinonez was convicted, the court had to determine whether a “purchase for purpose of sale” also fell within the definition of a drug trafficking offense. In Palacios-Quinonez, this court noted one major difference between a conviction for an “offer to sell” controlled substances and a conviction for a “purchase for sale” of a controlled substance. One may “offer to sell” drugs without possessing those drugs. One who “purchases for sale” however has either actual or constructive possession of the controlled substance. We concluded that the offense of “purchase for sale” was equivalent to the controlled substance “possession with intent to distribute.” For" }, { "docid": "22906043", "title": "", "text": "and offers to transport, sell, furnish, administer, or give away a controlled substance.” Garza-Lopez, 410 F.3d at 274. None of the listed activities is covered by the “drug trafficking offense” definition, which “covers only the manufacture, import, export, distribution, or dispensing of a controlled substance (or possession with the intent to do any of these things).” Id. Therefore this court concluded the district court had committed plain error in adding a sentencing enhancement, because the basis for defendant’s underlying conviction could be conduct that lies outside the narrow definition of a “drug trafficking offense.” Id. at 275. In United States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir.2007) (per curiam), this court held that a conviction for unlawful delivery of a controlled substance under a different subsection of section 481.112 of the Texas Health and Safety Code, was broader than the limited set of offenses subject to a sentencing enhancement under the USSG’s definition of “drug trafficking offense.” In Gonzales, the court noted that “delivery” encompasses an “offer to sell” under the Texas statutory definition, and an “offer to sell” is not one of the acts included within the “drug trafficking offense” definition. Id. See also Tex. Health & Safety Code Ann. § 481.002(8) (defining “deliver”); Donley v. State, 140 S.W.3d 428, 429 (Tex.App.2004) (interpreting “delivery” as any actual transfer, constructive transfer, or offer to sell); Garza-Lopez, 410 F.3d at 273 (listing “offers to ... sell” as conduct outside USSG’s definition of “drug trafficking offense”). Neither of the above cases controls the outcome of this appeal. The significant distinction in this case is that unlike the two cases discussed above, the conviction here was for possession with the intent to deliver rather than just delivery or transportation. In the instant case, Ford’s indictment charged him with possession with intent to deliver. According to the USSG, the term “controlled substance offense” includes offenses that prohibit the “possession of a controlled substance ... with intent to ... distribute.” USSG § 4B1.2(b). We agree with the government that it is pure sophistry to distinguish between the conduct of one who possesses drugs with" }, { "docid": "22906042", "title": "", "text": "he contends demonstrate that his prior offense — possession of intent to deliver — criminalizes conduct not subject to this enhancement. In two closely analogous decisions, this court held similar convictions to be broader than a nearly identical USSG definition of another offense subject to sentencing enhancement. In United States v. Garza-Lopez, 410 F.3d 268, 271 (5th Cir.2005), the defendant was previously convicted for “transporting/selling a controlled substance” under section 11379(a) of the California Health & Safety Code and for that previous conviction, the district court added a sentence enhancement for a “drug trafficking offense” under USSG § 2L1.2(b)(1)(A)(i). See USSG § 2L1.2 cmt. n. 1(B)(iv) (defining “drug trafficking offense”). This court held that the “transporting/selling a controlled substance” offense under the California statute was broader than the USSG’s definition of “drug trafficking offense.” Id. at 274-75. See also United States v. Kovac, 367 F.3d 1116, 1119 (9th Cir.2004); United States v. Navidad-Marcos, 367 F.3d 903 at 907-08 (9th Cir.2004). The California statute, for instance, “criminalizes the transportation of a controlled substance for personal use and offers to transport, sell, furnish, administer, or give away a controlled substance.” Garza-Lopez, 410 F.3d at 274. None of the listed activities is covered by the “drug trafficking offense” definition, which “covers only the manufacture, import, export, distribution, or dispensing of a controlled substance (or possession with the intent to do any of these things).” Id. Therefore this court concluded the district court had committed plain error in adding a sentencing enhancement, because the basis for defendant’s underlying conviction could be conduct that lies outside the narrow definition of a “drug trafficking offense.” Id. at 275. In United States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir.2007) (per curiam), this court held that a conviction for unlawful delivery of a controlled substance under a different subsection of section 481.112 of the Texas Health and Safety Code, was broader than the limited set of offenses subject to a sentencing enhancement under the USSG’s definition of “drug trafficking offense.” In Gonzales, the court noted that “delivery” encompasses an “offer to sell” under the Texas statutory definition," }, { "docid": "17981907", "title": "", "text": "distributing, or possessing with intent to manufacture or distribute, a controlled substance ..., for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). A person violates New York Penal Law § 220.39(1) “when he knowingly and unlawfully sells ... a narcotic drug.” New York defines “sell” to mean “to sell, exchange, give or dispose of to another, or to offer or agree to do the same.” N.Y. Penal Law § 220.00(1) (emphasis added). Since Whindleton’s record of conviction does not specify on what theory he was convicted, we must ensure that any form of the conviction would qualify as a “serious drug offense” under the ACCA. See Holloway, 630 F.3d at 257. Whindleton argues that his conviction does not qualify as a “serious drug offense” since an offer to sell does not “involvfe] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” We have previously held that, “[b]y using ‘involving,’ Congress captured more offenses than just those that ‘are in fact’ the manufacture, distribution, or possession of, with intent to distribute, a controlled substance.” United States v. McKenney, 450 F.3d 39, 42 (1st Cir.2006). The definition of a “serious drug offense” also “ ‘encompass[es] ... offenses that are related to or connected with such conduct.’ ” Id. at 43-44 (quoting United States v. King, 325 F.3d 110, 113 (2d Cir.2003)). For example, in McKenney, we held that a defendant’s conviction for “conspiracy to violate a state controlled substances law by agreeing to possess with intent to deliver cocaine” qualified as a “serious drug offense” under the ACCA. Id. at 40. There was no argument that the defendant did, in fact, possess cocaine with intent to deliver, or that the defendant even took an overt step in that direction. Id. at 42-43 nn. 6 & 8. Nevertheless, we held that “the conspiracy standing alone was sufficient.” Id. at 42-43 n. 8. We explained that “the relationship between the inchoate offense of conspiracy and its object — its entire purpose — is plainly close enough that a conspiracy" }, { "docid": "22911800", "title": "", "text": "federal law. Consequently, even though Texas defines Vasquez-Martinez’s crime as a state law felony, it may not qualify as an aggravated felony under the Controlled Substance Act if it consists of conduct that would be only a federal misdemeanor. Vasquez-Martinez was convicted under Texas Health and Safety Code § 481.112(a), which reads: Except as authorized by this chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1. The statute defines the word “deliver”: “Deliver” means to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia. Tex. Health & Safety Code Ann. § 481.002(8). (emphasis added). Vasquez-Martinez argues that because Texas law defines “delivery” as encapsulating “offering to sell”, it is broader than the definition of “delivery” in the federal stat ute, which does not include offers to sell. Thus, he contends, because the Texas statute includes conduct that would not be considered a felony under the federal statute, a conviction under § 481.112(a) cannot be considered an aggravated felony for the purposes of disqualifying him for cancellation of removal. Vasquez-Martinez points to two of our cases in the sentencing context that he argues support finding that possession with intent to deliver is not an aggravated felony under the Controlled Substances Act. In United States v. Gonzales, 484 F.3d 712, 715-16 (5th Cir.2007), we held that the statutory definition of delivery of a controlled substance in § 481.112 of the Texas Health and Safety Code encompasses activity that does not fall within the definition of “drug trafficking offense” as set out in § 2L1.2(b)(l)(A)(i) of the United States Sentencing Guidelines, because the state statute includes an “offer to sell”. Similarly, in United States v. Morales-Martinez, 496 F.3d 356, 360 (5th Cir.2007), because the Texas statute defines delivery more broadly than § 2L1.2’s definition of a “drug trafficking offense,” we applied the “categorical approach” of Taylor v. United States," }, { "docid": "244212", "title": "", "text": "constructively transferred the cocaine. The Government concedes that conviction could be based on any one of the alternatives. Therefore, nothing negates the possibility that Vickers was convicted solely for offering to sell a controlled substance. Vickers relies on a precedent in which the defendant was convicted of reentry by a removed alien. United States v. Gonzales, 484 F.3d 712, 714 (5th Cir.), cert. denied, — U.S. -, 127 S.Ct. 3031, 168 L.Ed.2d 748 (2007). At sentencing, the Government sought to enhance Gonzales’s sentence under the Sentencing Guidelines as a prior “drug trafficking offense.” The ACCA was not discussed. The only relevance of Gonzales is that the prior conviction was under the Texas statute that is at issue here. We held that Gonzales’s conviction under the Texas statute for offering to sell a controlled substance was not a “drug trafficking offense.” For the enhancement to be applicable, the offense must be one that “prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute or dispense.” Id. at 715 n. 1 (quoting U.S.S.G. § 2L1.2, cmt. n.1(B)(iv)). Our question was whether an offer to sell could be considered any of those actions. It could not be, and we found the enhancement inapplicable. Gonzales, 484 F.3d at 716. Unlike the Gonzales court, we are not faced with interpreting the “drug trafficking” enhancement under the Sentencing Guidelines. Our interpretive issues arise from the Armed Career Criminal Act. If the definition in the ACCA of a “serious drug offense” were identical to the definition of a “drug trafficking offense” in the Guidelines, then the Gonzales holding would be relevant. The two definitions are not identical. The drug trafficking enhancement lists specific convictions (e.g., manufacture, import) that support the enhancement. The ACCA applies to convictions “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance .... ” 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added). The word “involving” is an exceedingly broad term for a statute. One of our precedents has addressed this part of the" }, { "docid": "22913938", "title": "", "text": "have held that a mere offer to sell, absent possession, does not fit within the Guidelines’ definition of “the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance.” We recognized in Palacios that “neither ‘the transportation of a controlled substance for personal use’ nor ‘offers to transport, sell, furnish, administer or give away a controlled substance’ is covered by the definition of drug trafficking.” We similarly held in Gonzales and GarzcG-Lopez. Although those cases address drug trafficking and not the definition of controlled substance offense under the Guidelines, our holding in Ford recognizes that the Guidelines’ definitions of drug trafficking and controlled substance offense are nearly identical, as we discuss above. The sentencing error affects Price’s substantial rights because Price “ ‘can show a reasonable probability that, but for the district court’s misapplication of the Guidelines, [he] would have received a lesser sentence.’ ” Without the sentence enhancement under § 2K2.1(a)(2), Price alleges that he would have received a base offense level of 23 or lower, and that a base offense level of 23 combined with his criminal-history category of VI would have resulted in a 92-to 115-month Guidelines range. Although the 110-month sentence that Price received is within that range, defendant has “ ‘demonstrate^] a probability sufficient to undermine confidence in the outcome,’ ” as a 92-month sentence is substantially lower than a 110-month sentence. Finally, the sentencing error “seriously affects the fairness, integrity, or public reputation of judicial proceedings” because it “ ‘clearly affected [the] defendant’s sentence.’ ” The district court’s judgment imposing a sentence of 110 months based on § 2K2.1 of the Guidelines is VACATED AND REMANDED FOR RE-SENTENCING. . U.S.S.G. § 2K2.1(a)(2) (2005). . See, e.g., United States v. Medina-Anicacio, 325 F.3d 638, 647 (5th Cir.2003) (reviewing for plain error where a defendant did not object to the PSR recommendation). . United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.2005) (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). . The Government agrees with Price that the enhancement" } ]

[ { "docid": "16687667", "title": "", "text": "proved, there is no basis for inferring that Bettencourt intended to assault or interfere with the state officers then, or with federal officers now. Detective Foster’s testimony, based on another officer’s report, was not only hearsay, but useless hearsay. It established no basis for an inference one way or another. See United States v. Brashier, 548 F.2d at 1325. Balanced against the minimal probative value of the fact of an arrest is the substantial, perhaps inherent, prejudicial potential of such evidence for the jury. Even though carefully instructed, as they were in this case, jurors are likely to regard such evidence of a past act as proof of a defendant’s turbulent character and to conclude that he acted consistently with that character at the time charged in the indictment. Thus, although the weighing of probative value against prejudicial effect of admitting evidence of prior acts is within the trial judge’s sound discretion, United States v. Riggins, 539 F.2d 682, 683 (9th Cir. 1976), cert. denied, 429 U.S. 1045, 97 S.Ct. 749, 50 L.Ed.2d 758 (1977), the district court in this instance incorrectly struck this balance and should not have admitted Detective Foster’s testimony. The government had no business offering such evidence. The remaining question is whether the use of evidence which should never have been offered and which should have been excluded was harmless error. This circuit’s standard for reviewing non-constitutional errors in admitting evidence is that “these errors are reversible only if it is more probable than not that the erroneous admission of the evidence materially affected the jurors’ verdict * * United States v. Awkard, 597 F.2d 667, 671 (9th Cir. 1979), citing United States v. Valle-Valdez, 554 F.2d 911 at 914 (9th Cir. 1977). In this case, the legal evidence was overwhelming (the testimony of four eyewitnesses) that Bettencourt twice struck or pushed Agent Wilson as the agent attempted to close the gate to the secured area. In light of this testimony, although the behavior of the prosecutor in offering the evidence concerning Bettencourt’s prior arrest was wholly inexcusable, the evidence was merely cumulative on the issue" } ]

[ { "docid": "5333617", "title": "", "text": "is a drainage passage between Nogales, Arizona, and Nogales, Sonora, Mexico. According to Watson, Elmer said that he weighted the body down to prevent its discovery. At all times, Watson has maintained that he did not believe Elmer and viewed Elmer’s claim as braggadocio. For his part, during his testimony at his murder trial Elmer denied that he had ever said anything to Watson regarding such a shooting. No body was ever found. The state concedes that no proof exists that this event ever occurred. This evidence was admitted at Elmer’s previous homicide trial. There, Watson claimed that Elmer intimidated him into not reporting the June 12, 1992, killing of Dario Miranda-Valenzuela. Because Elmer’s statement about Morley Tunnel allegedly contributed to Watson’s fear of Elmer, the statement was admissible. In the context of the current charges, however, it does nothing more than tend to prove that Elmer is a bad person and is therefore inadmissible. 4. Evidence of June 12, 1992 Homicide and Concealment Finally, the state seeks to introduce evidence of the June 12, 1992, events. A jury recently acquitted Elmer of the June 12, 1992, murder of Dario Miranda-Valenzuela and related charges. At that trial, evidence was presented that around 7:00 p.m. on June 12,1992, while Elmer and other agents were on patrol in what was allegedly a drug-trafficking corridor just outside No-gales, Arizona, Elmer shot an unarmed citizen of the Republic of Mexico twice in the back. Evidence was presented that prior to the shooting, three scouts for a drug load were conducting counter surveillance on the Border Patrol Agents. Agent Watson testified that he fired warning shots to scare off one of the alleged drug scouts. Other agents in the area testified to having heard Watson broadcast over the radio that the man was possibly armed. Watson denied this. However, Watson did testify that he broadcast to Elmer that the man was running in Elmer’s direction. Elmer testified that he heard gunfire, heard Watson broadcast that the man appeared to be armed and was moving toward Elmer, then observed one of the scouts approaching. Elmer stated" }, { "docid": "5333614", "title": "", "text": "that the state did not intend to offer this evidence because there was no indication that Elmer had used drugs on that occasion and introduction of this unrelated evidence would surely result in reversal of any convictions obtained. Against this backdrop, the state now seeks to introduce this evidence. The state contends that this evidence is admissible because Elmer may have fired the March 18, 1992, shots at the illegal aliens because he believed that they were carrying drugs and he hoped that they would drop the drugs and flee, thereby enabling him to divert the drugs for his own purposes. This argument is flawed. At best, this highly prejudicial evidence constitutes proof of motive. The motive suggested is relatively weak. Other agents were present at the time the shots were fired and any attempted diversion would have been difficult. Furthermore, under this reasoning, every time Elmer tried to interdict drugs, he arguably did so in order to divert them for his own use rather than to enforce the laws of the United States. While Fed.R.Evid. 402 provides that “[a]ll relevant evidence is admissible,” Rule 403 provides that “relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...” In order to be admissible at trial, prior bad act evidence must be sufficient to support a finding by a jury that the defendant committed the act. Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). The Ninth Circuit has repeatedly stated that Rule 404(b) was designed to prevent the government from introducing extraneous evidence which may cause a jury to convict even in the absence of adequate proof of the crimes charged, merely because the defendant is a bad person. United States v. Hill, 953 F.2d 452, 457 (9th Cir.1991) (convictions for conspiracy to distribute cocaine and attempted possession of cocaine reversed due to erroneous admission of evidence that five years before alleged conspiracy, defendant used cocaine with witness); United States v. Brown, 880 F.2d 1012, 1014. (9th Cir.1989) (convictions for first degree murder and use of" }, { "docid": "23020928", "title": "", "text": "is probative of “an accused’s participation in the drug distribution business and; more specifically, his or her participation in the charged distribution offenses.” Martinez, 938 F.2d at 1083. In admitting firearms evidence, courts have recognized the high level of violence generally associated with the drug distribution business. Id. Therefore, those who conspire with individuals utilizing firearms in their drug business run the risk the government will introduce as evidence those weapons or violence resulting from their use. Rather than offer a convincing argument how introduction of the cocaine and firearms caused the jury to decide his case on an improper basis, Mr. Mendoza merely suggests the evidence unfairly damaged his position. Defendant's arguments are insufficient to preclude admission of the evidence. Even had the government not introduced the firearms, ample evidence existed to support the jury’s guilty verdict on conspiracy charges. We see no undue prejudice to Mr. Mendoza’s case resulting from admission of the evidence. Prior Bad Acts Next, Mr. Mendoza argues the government offered the firearms as evidence of other crimes, wrongs or acts which are inadmissible to prove character under Fed.R.Evid. 404(b). Because the government did not charge any of the defendants with weapons violations, Mr. Mendoza contends the firearms were extrinsic evidence inadmissible pursuant to United States v. Record, 873 F.2d 1363 (10th Cir.1989). As the government correctly points out, however, Mr. Mendoza’s counsel objected to the weapons only on grounds of relevance and prejudice. Mr. Mendoza did not object to the firearms as Rule 404(b) evidence, nor did the government offer the evidence for that purpose. In order to preserve alleged error for appeal, a party must make a timely and proper objection, “ ‘stating the specific ground of objection, if the specific ground was not apparent from the context.’ ” United States v. Taylor, 800 F.2d 1012, 1017 (10th Cir.1986), cert. denied, 484 U.S. 838, 108 S.Ct. 123, 98 L.Ed.2d 81 (1987) (quoting Fed.R.Evid. 103(a)(1)) (emphasis in original). On appeal, the specific ground for reversal on an evidentiary ruling must mirror the objection raised at trial. 800 F.2d at 1017 (citing Fortier v. Dona" }, { "docid": "5333620", "title": "", "text": "111 S.Ct. 2861, 115 L.Ed.2d 1028 (1991). The state seeks to introduce evidence that on June 12, 1992, Elmer shot an unarmed alien twice in the back, attempted to conceal the body, and failed to report the firing of shots.' The state indicates that it has no objection to the jury being informed that another jury found the defendant not guilty based upon self-defense. The state maintains that this evidence is admissible because it constitutes another occasion on which Elmer fired shots and failed to file a report thereof, as required by Border Patrol regulation, The state also suggests that it was as a result of these occurrences that the March 18, 1992, assaults came to light, and therefore this evidence completes the story of the March 18, 1992, assaults. It is undeniable that this evidence is extremely prejudicial. While one solution may appear to be to merely restrict the state to proof that on June 12, 1992, Elmer fired shots and failed to file a report thereof, this result is inappropriate. Regardless of the various interpretations to which the evidence surrounding June 12, 1992, is susceptible, a jury has found Elmer not guilty based upon self-defense. Further, the circumstances under which shots were fired that day are only superficially similar to the circumstances of the alleged aggravated assaults on March 18, 1992. Evidence of the killing of Dario Miranda-Valenzuela would, in all probability, seize and hold the jury’s attention at trial. In United States v. Fortenberry, 860 F.2d 628, (5th Cir.1988), the Fifth Circuit reversed a defendant’s convictions for conspiracy to commit arson, possession of an unregistered firearm, and transporting a firearm on a commercial airline, based upon the erroneous admission of prior bad acts including three cross-bow attacks and three arsons. In reversing the trial court’s denial of defendant’s motion for new trial, the Fifth Circuit states: In terms both of time in the courtroom and capacity to impress the jury, this tail wagged the dog. 860 F.2d at 632. It is just as clear that the June 12, 1992, evidence should be excluded. For the foregoing reasons," }, { "docid": "16743362", "title": "", "text": "unduly prejudicial, and evidence of prior bad acts. Tanner joined the motion. The district court denied the motion, reasoning that guns are admissible as drug traffickers’ tools of the trade. At trial, the prosecution offered extensive testimony from two Gary, Indiana, police officers detailing Tanner’s use of firearms at a New Year’s Eve party on December 31, 1999. The officers had been on patrol when they heard a large number of shots fired nearby. The officers followed the sound of gunfire to Tanner’s mother’s home, where they discovered that a number of partygoers had been firing guns in the air to celebrate the new year. The officers briefly detained the partygoers and confiscated numerous weapons found at the scene. They made no arrests and did not identify any of the partygoers. Cooperating witness Moore, who had attended the party, confirmed that Tanner had fired an assault rifle that night. On the basis of this testimony, the government introduced into evidence a number of guns that were seized at the New Year’s party. Tanner argues that the district court erred by allowing this evidence, on the grounds that it constituted evidence of prior bad acts, was irrelevant, and was unduly prejudicial. We review this evidentiary issue for an abuse of discretion. E.g., United States v. Gallardo, 497 F.3d 727, 732 (7th Cir.2007). Upon review of the trial record, we conclude that the law enforcement officers’ testimony should have been excluded under Federal Rule of Evidence 403, which requires relevant evidence to be excluded if its prejudicial impact substantially outweighs its probative value. Under the tools-of-the-trade doctrine, Tanner’s possession of a firearm on a prior occasion might be relevant to the allegation that he is a drug dealer, United States v. Rhodes, 229 F.3d 659, 661 (7th Cir.2000), but the specific probative value attached to that firearm will vary from circumstance to circumstance. For example, evidence that Tanner carried a concealed weapon on a regular basis during the time he allegedly dealt in illegal narcotics would have much greater probative value than evidence that he had, during the same period of time," }, { "docid": "7999948", "title": "", "text": "drug convictions pursuant to Rule 404(b); denial of his motion for a mistrial based on an unresponsive answer; prosecuto-rial misconduct during closing argument; and sufficiency of the evidence on count three (using or carrying a firearm during and in relation to a drug trafficking crime). A. Notwithstanding admitting in his post-arrest interview that the drugs found on Falcon were his, Willis reversed course before trial, placing possession in issue for count two— possession with intent to distribute. He contends that, in light of his offer to stipulate to intent to distribute, his two prior drug convictions were not admissible under Rule 404(b), asserting that their probative value on, inter alia, his intent to exercise dominion and control over (constructively possess) the drugs was outweighed by unfair prejudice. This court has set forth a two-part test for determining the propriety of admitting evidence of “bad acts” not alleged in the indictment. First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant’s character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of rule 403. United States v. Dula, 989 F.2d 772, 777 (5th Cir.1993) (citing United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979)). “The district court’s determinations on these matters will not be disturbed absent a clear showing of abuse of discretion”. United States v. Robichaux, 995 F.2d 565, 568 (5th Cir.1993) (internal quotation marks omitted); see also United States v. Dula, 989 F.2d at 778 (“The balancing of probative value against prejudicial effect is committed to the sound discretion of the trial judge, a decision that is final in the absence of abuse of discretion”). Willis stipulated that he was a convicted felon. Prior to trial, the Government gave notice that, pursuant to Rule 404(b), it intended to offer into evidence his state convictions in 1991 (the offense in issue was in March 1992) for possession of cocaine and possession with the" }, { "docid": "9757127", "title": "", "text": "the interstate travel in aid of racketeering count. He also received special parole terms of five years on all but one count. Finally, the court assessed him $350 pursuant to 18 U.S.C. § 3013. Both Lai and Brandon timely appealed, and their cases were consolidated by court order on March 15, 1989. I. Other Bad Acts Evidence Brandon argues that the district court erred in allowing the introduction of evidence about wrongful acts he allegedly committed outside the time period of the charged conspiracy. Brandon points to two places where he claims such acts were introduced into evidence in violation of Fed.R.Evid. 404(b)’s prohibition against admitting evidence of a defendant’s prior crimes or wrongful acts to show bad character or propensity to commit crimes. See United States v. Brown, 880 F.2d 1012, 1014 (9th Cir.1989). First, co-conspirator Quon testified that on two or three occasions in late 1982 he and Lai went to the federal building where Brandon worked as a DEA agent and brought a small quantity of cocaine to Brandon. Second, the Government’s witness Stone testified that he purchased drugs from Brandon several times in late 1985; he could not remember any specific dates except one purchase near Thanksgiving, 1985. Our first inquiry is to determine whether the evidence Brandon complains of was in fact evidence of “other crimes.” Brandon was charged with being part of a conspiracy “[beginning at a time unknown to the Grand Jury and continuing to in or about October, 1985.” The indictment charged that specific acts were done to further the conspiracy as early as July of 1983. However Brandon claims that the drug transactions in late 1982 to which Quon testified were not part of the conspiracy but “other acts.” We disagree. Admission of Quon’s testimony regarding these drug transactions is not barred by Rule 404(b) because it was direct evidence of the conspiracy. See United States v. Uriarte, 575 F.2d 215, 216-17 (9th Cir.) (1972 arrest was admissible as evidence of conspiracy where indictment set no starting date for conspiracy and majority of evidence described activities in late 1975 and early" }, { "docid": "5333613", "title": "", "text": "on April 2, 1992, that Elmer “shot the face off a man in Morley Tunnel” in Nogales; and, 4. Elmer’s killing of an unarmed man on June 12, 1992. The defense vehemently objects to the admission of each of these matters. 1. Evidence of Drug Diversion and Use in October 1991 Through the testimony of two witnesses, Elmer’s ex-wife .and an informant whom the state admits is highly impeachable, the state seeks to introduce evidence that in the fall of 1991 Elmer found drugs, including cocaine, and diverted them to his own use. No charges have ever been brought against Elmer concerning these matters. As of June 12, 1992, Elmer had not been suspended from his employment as a Border Patrol Agent as a result of these allegations. The state does not claim that Elmer used drugs at or near the time that the shots were allegedly fired by Elmer at the illegal aliens on March 18, 1992. During hearings on Elmer’s pretrial motions in connection with his murder trial, counsel for the state indicated that the state did not intend to offer this evidence because there was no indication that Elmer had used drugs on that occasion and introduction of this unrelated evidence would surely result in reversal of any convictions obtained. Against this backdrop, the state now seeks to introduce this evidence. The state contends that this evidence is admissible because Elmer may have fired the March 18, 1992, shots at the illegal aliens because he believed that they were carrying drugs and he hoped that they would drop the drugs and flee, thereby enabling him to divert the drugs for his own purposes. This argument is flawed. At best, this highly prejudicial evidence constitutes proof of motive. The motive suggested is relatively weak. Other agents were present at the time the shots were fired and any attempted diversion would have been difficult. Furthermore, under this reasoning, every time Elmer tried to interdict drugs, he arguably did so in order to divert them for his own use rather than to enforce the laws of the United States. While" }, { "docid": "5333622", "title": "", "text": "IT IS ORDERED: 1. That defendant’s motion to exclude evidence of the remote, unrelated, unreliable and highly prejudicial evidence of Elmer’s alleged diversion of drugs six months prior to the alleged assaults is GRANTED. 2. That defendant’s motion to exclude evidence of Elmer’s alleged firing of shots at drug traffickers on March 16, 1992, under circumstances other than self-defense is DENIED; 3. That defendant’s motion to exclude evidence of Elmer’s alleged statement to Agent Tom Watson on April 2, 1992, that Elmer “shot the face off a man in Morley Tunnel” in Nogales is GRANTED; and, 4.That defendant’s motion to exclude evidence of the events upon which the June 12, 1992, homicide charge was based is GRANTED. State’s Appeal and Stay; Change of Venue Because these rulings result in the exclusion of evidence from the prosecution’s case, the state may have the right to obtain pretrial appellate review of them. See 18 U.S.C. § 3731 (statute permitting appeal by United States of ruling by district court excluding evidence). Should the state wish to seek such review, the court will grant a stay of proceedings. If the state does not seek pretrial appellate review of these proceedings, because of the pervasive, prejudicial publicity surrounding this defendant, IT IS ORDERED that defendant’s motion for change of venue is GRANTED and this matter will proceed to trial in United States District Court in Phoenix. The court has selected Phoenix rather than Prescott because the jury pool from which jurors in a Prescott trial would be selected would result in the underrepresentation of minorities. IT IS FURTHER ORDERED that the trial set for February 4, 1993, is VACATED and RESET to March 8, 1993." }, { "docid": "8333680", "title": "", "text": "third claim Guerrero raises in support of his motion for a new trial is that the Court improperly allowed evidence of Guerrero’s bad acts. Guerrero objects to the admission of evidence related to three specific uncharged acts: (1) the attempted murder of rival drug dealer “Amadito” by Guerrero and Leonardo; (2) Guerrero’s purported involvement with other Solid Gold members in shooting at a bodega from the top of his building; and (3) Guerrero’s early robberies with Leonardo. Guerrero’s argument is that introducing uncharged prior conduct prejudiced Guerrero because those actions were part of a separate conspiracy and the jury was improperly influenced by the large number of violent incidents. The defendant claims that these acts predated a turning point in 1993 when the conspiracy shifted to a drug distribution conspiracy, and, accordingly, testimony as to these shootings and gun battles were inadmissible and that prior to 1993 there was no large quantity of crack cocaine sales, thereby removing any motivation to displace competing drug dealers. Guerrero contends that - introducing this evidence was therefore in error, the jury was unduly influenced by the large number of murders and the verdict should be set aside. All of the evidence Guerrero has challenged was offered as proof of the existence of the Solid Gold narcotics conspiracy, which conducted its business at 173rd Street and Boston Road. Evidence of uncharged conduct is admissible to establish the existence of a conspiracy. See United States v. Thai, 29 F.3d 785, 812-13 (2d Cir.1994) (evidence of uncharged robberies and assaults is admissible as direct evidence to show the “existence and structure” of the conspiracy); United States v. Concepcion, 983 F.2d 369, 392 (2d Cir.1992) (“An act that is alleged to have been done in furtherance of the alleged conspiracy ... is not an ‘other’ act within the meaning of Rule 404(b); rather, it is part of the very act charged.”). Furthermore, evidence related to the defendants’ prior illicit transactions with their co-conspirators, including shootings of drug rivals, possession of guns belonging collectively to the Solid Gold crew, robberies of drug customers and their knowledge of and" }, { "docid": "12188852", "title": "", "text": "one conviction, an officer testified to the facts of the offense, including Kent’s flight and apprehension while possessing crack cocaine and a handgun. Before the evidence was introduced, a limiting instruction was read to the jury. Kent acknowledges that the first two requirements for admissibility are met. See United States v. Brown, 923 F.2d 109, 111 (8th Cir.1991) (evidence of other instances of possession of crack cocaine relevant to prove intent where defendant charged with possession with intent to distribute). He argues that the third requirement, proof by a preponderance of the evidence, was not met with regard to the testimony that he carried a handgun, because that part of the earlier charge was dropped. The third requirement is met if “the jury could reasonably find by a preponderance of the evidence that the act occurred and that the defendant was the actor.” United States v. Williams, 895 F.2d 1202, 1205 (8th Cir.1990). The officer’s credibility was for the jury to evaluate. See United States v. Yerks, 918 F.2d 1371, 1373 (8th Cir.1990). If found credible, the officer’s testimony is enough to find that Kent possessed a gun. See id. (testimony of drug users that defendant previously sold them crack cocaine, if believed, would permit finding that defendant engaged in prior distribution). Kent contends that the fourth requirement is not met because evidence of his prior crimes is too prejudicial. “[E]vidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403. Evidence of Kent’s prior convictions is not unfairly prejudicial. See United States v. Loveless, 139 F.3d 587, 593 (8th Cir.1998) (evidence of prior drug distribution not unfairly prejudicial in drug prosecution); United States v. McCarthy, 97 F.3d 1562, 1573 (8th Cir.1996) (evidence that defendant previously smuggled marijuana not unfairly prejudicial in conspiracy to distribute marijuana prosecution); United States v. Crump, 934 F.2d 947, 955 (8th Cir.1991) (evidence that state representative gave drugs in exchange for sex with much younger female not unfairly prejudicial in drug prosecution). “Moreover, this Court has ‘been reluctant to find that the evidence was unfairly prejudicial when" }, { "docid": "5333621", "title": "", "text": "various interpretations to which the evidence surrounding June 12, 1992, is susceptible, a jury has found Elmer not guilty based upon self-defense. Further, the circumstances under which shots were fired that day are only superficially similar to the circumstances of the alleged aggravated assaults on March 18, 1992. Evidence of the killing of Dario Miranda-Valenzuela would, in all probability, seize and hold the jury’s attention at trial. In United States v. Fortenberry, 860 F.2d 628, (5th Cir.1988), the Fifth Circuit reversed a defendant’s convictions for conspiracy to commit arson, possession of an unregistered firearm, and transporting a firearm on a commercial airline, based upon the erroneous admission of prior bad acts including three cross-bow attacks and three arsons. In reversing the trial court’s denial of defendant’s motion for new trial, the Fifth Circuit states: In terms both of time in the courtroom and capacity to impress the jury, this tail wagged the dog. 860 F.2d at 632. It is just as clear that the June 12, 1992, evidence should be excluded. For the foregoing reasons, IT IS ORDERED: 1. That defendant’s motion to exclude evidence of the remote, unrelated, unreliable and highly prejudicial evidence of Elmer’s alleged diversion of drugs six months prior to the alleged assaults is GRANTED. 2. That defendant’s motion to exclude evidence of Elmer’s alleged firing of shots at drug traffickers on March 16, 1992, under circumstances other than self-defense is DENIED; 3. That defendant’s motion to exclude evidence of Elmer’s alleged statement to Agent Tom Watson on April 2, 1992, that Elmer “shot the face off a man in Morley Tunnel” in Nogales is GRANTED; and, 4.That defendant’s motion to exclude evidence of the events upon which the June 12, 1992, homicide charge was based is GRANTED. State’s Appeal and Stay; Change of Venue Because these rulings result in the exclusion of evidence from the prosecution’s case, the state may have the right to obtain pretrial appellate review of them. See 18 U.S.C. § 3731 (statute permitting appeal by United States of ruling by district court excluding evidence). Should the state wish to seek such" }, { "docid": "5333616", "title": "", "text": "firearm during felony reversed due to erroneous admission of evidence of two prior acts involving firearms). When prior bad act evidence has minimal probative value in contrast to its unfairly prejudicial impact it should be excluded. United States v. Bettencourt, 614 F.2d 214, 218 (9th Cir.1980). This evidence is inadmissible. 2. Evidence of March 16, 1992, Assaults The state has given notice that it intends to introduce evidence that two days prior to the alleged March 18,1992, assaults, Elmer allegedly fired shots at several suspected drugtraffickers. These individuals dropped the drugs they were transporting and agents seized the drugs. The state contends that this incident constitutes proof of another occasion on which the defendant used deadly force other than in self-defense, in violation of Arizona law. A.R.S. § 13-1204. This evidence is admissible at trial. 3. Elmer’s Morley Tunnel Statement The state next seeks to introduce testimony that on April 2, 1992, Elmer told Border Patrol Agent Tom Watson that he had “shot the face off a man” in Morley Tunnel, Nogales, Arizona. Morley Tunnel is a drainage passage between Nogales, Arizona, and Nogales, Sonora, Mexico. According to Watson, Elmer said that he weighted the body down to prevent its discovery. At all times, Watson has maintained that he did not believe Elmer and viewed Elmer’s claim as braggadocio. For his part, during his testimony at his murder trial Elmer denied that he had ever said anything to Watson regarding such a shooting. No body was ever found. The state concedes that no proof exists that this event ever occurred. This evidence was admitted at Elmer’s previous homicide trial. There, Watson claimed that Elmer intimidated him into not reporting the June 12, 1992, killing of Dario Miranda-Valenzuela. Because Elmer’s statement about Morley Tunnel allegedly contributed to Watson’s fear of Elmer, the statement was admissible. In the context of the current charges, however, it does nothing more than tend to prove that Elmer is a bad person and is therefore inadmissible. 4. Evidence of June 12, 1992 Homicide and Concealment Finally, the state seeks to introduce evidence of the June 12," }, { "docid": "23314408", "title": "", "text": "EUGENE A. WRIGHT, Circuit Judge. We have said it before and we shall have to say it again: a prosecuting attorney may not and should not vouch for witnesses. Jay Kerr appeals his conviction for conspiracy to distribute cocaine. We find that prosecutorial misconduct throughout his trial affected the jury’s verdict and we reverse. I. An informant alerted the FBI about an ongoing scheme to smuggle drugs from Southern California into Billings, Montana. The investigation turned up a multi-layered conspiracy with many participants. Kerr, an actor who has appeared in Disney movies and a soap opera, was named as one of the California suppliers. Along with two others, he was indicted on nine counts of conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. Several other suspects, including Jacobson, Rider, Ludden and Butler, pled guilty and testified against Kerr at his trial. A jury subsequently convicted him on all nine counts. Kerr appeals on several grounds. First, he argues that the district court erred by admitting similar acts evidence in violation of Fed.R.Evid. 404(b). Next, he alleges that the government withheld favorable evidence. Third, he contends that prosecuto-rial misconduct, including vouching for government witnesses, referring to evidence outside the record and use of a confidential pretrial services report, affected the jury’s verdict. II. The district court allowed testimony that Kerr possessed a small amount of cocaine when he was arrested. The court also permitted testimony describing his pending indictment for cocaine possession. Kerr argues that this evidence was highly prejudicial because it concerned events too remote in time from the alleged offense. Authorities arrested him in 1990 but the government charged a conspiracy between 1987 and 1988. Admission of similar acts evidence under Fed.R.Evid. 404(b) is reviewed for an abuse of discretion. United States v. Hill, 958 F.2d 452, 455 (9th Cir.1991). We find no error. Defense counsel said during opening statement that Kerr possessed cocaine at the time of arrest. If the defendant introduces similar acts evidence first, the government may step through the “open door.” United States v. Segal," }, { "docid": "5333618", "title": "", "text": "1992, events. A jury recently acquitted Elmer of the June 12, 1992, murder of Dario Miranda-Valenzuela and related charges. At that trial, evidence was presented that around 7:00 p.m. on June 12,1992, while Elmer and other agents were on patrol in what was allegedly a drug-trafficking corridor just outside No-gales, Arizona, Elmer shot an unarmed citizen of the Republic of Mexico twice in the back. Evidence was presented that prior to the shooting, three scouts for a drug load were conducting counter surveillance on the Border Patrol Agents. Agent Watson testified that he fired warning shots to scare off one of the alleged drug scouts. Other agents in the area testified to having heard Watson broadcast over the radio that the man was possibly armed. Watson denied this. However, Watson did testify that he broadcast to Elmer that the man was running in Elmer’s direction. Elmer testified that he heard gunfire, heard Watson broadcast that the man appeared to be armed and was moving toward Elmer, then observed one of the scouts approaching. Elmer stated that he fired, in self-defense in the direction of a tree where the man was positioned. Shortly thereafter, Watson joined Elmer and the body of Dario Miranda-Valenzuela was discovered. Elmer moved the deceased’s body approximately fifty feet and Watson testified that Elmer told him not to report the matter and gestured in Watson’s direction with a weapon. Neither Watson nor Elmer reported the matter that night, but the next day Watson informed a supervisor and Elmer was arrested by local sheriffs deputies. Despite Elmer’s acquittal on all charges, the state seeks to introduce this evidence at Elmer’s aggravated assault trial. The state correctly points out that Elmer’s acquittal is not necessarily a bar to the introduction of these matters pursuant to Rule 404(b). Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). Nor is the fact that this evidence involves events occurring after the assaults for which Elmer will stand trial a reason compelling exclusion. United States v. Bibo-Rodriguez, 922 F.2d 1398, 1400 (9th Cir.), cert. denied, — U.S. -," }, { "docid": "19212573", "title": "", "text": "charged offense” is admissible), cert. denied, 493 U.S. 968, 110 S.Ct. 415, 107 L.Ed.2d 380 (1989). At trial, the government introduced evidence that Warren had purchased five thousand pills of ecstasy and that Chickelero was brokering those pills for Warren. In addition, there was evidence that on a weekly basis, Warren was selling approximately one kilogram of cocaine that he acquired from Chang and Chavez via Chickelero. 2. Statements made by Warren to co-conspirator Warren claims that the district court erroneously admitted tape recordings of two cocaine-related conversations between himself and Chickelero occurring after Chickele-ro began acting as a government informant. According to Warren, the conversations were improperly admitted as they constitute nothing more than evidence of bad acts. Even if the conversations are admissible, Warren claims that they evidence a new conspiracy and are therefore irrelevant to the crime charged. Contrary to Warren’s assertions, the conversations were properly admitted as their content raises an inference that the two men were engaged in a conspiracy prior to Chickelero’s arrest. United States v. Vasquez, 874 F.2d 1515, 1517 (11th Cir.1989), cert. denied, 493 U.S. 1046, 110 S.Ct. 845, 107 L.Ed.2d 840 (1990). C. Taylor’s Prior Drug Conspiracy Conviction The admissibility of prior eonvie-tions evidence under Rule 404(b) is subject to a three-part test: (1) the evidence must be relevant to an issue other than the defendant’s character, such as intent, motive, opportunity, or plan; (2) as part of the relevancy analysis, there must be sufficient evidence that a jury could find that the defendant committed the extrinsic act; and (3) the probative value of the evidence must not be substantially outweighed by its undue prejudice. United States v. Miller, 959 F.2d 1535, 1538 (11th Cir.) (en banc) (citing Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988)), cert. denied, — U.S. -, 113 S.Ct. 382, 121 L,Ed.2d 292 (1992). Further, where the defendant offers to stipulate to the issue the government seeks to prove, evidence of prior convictions is inadmissible. United States v. Costa, 947 F.2d 919, 925 (11th Cir.1991) (evidence of prior crime" }, { "docid": "5333612", "title": "", "text": "ORDER ROLL, District Judge. The Court has under advisement defense motions in limine to exclude certain prior bad act evidence. Elmer, a Border Patrol Agent stationed at Nogales, Arizona, is currently awaiting trial on ten counts of aggravated assault in connection with the alleged unjustified firing of shots at a group of illegal aliens on March 18, 1992. Elmer was recently acquitted by a federal jury of second degree ■ murder, attempted murder, aggravated assault, and obstruction of justice in connection with events which occurred on June 12, 1992. See Cause No. CR 92-456 TUC JMR. Those charges and the instant charges were filed in state court but removed to federal court. Rule W(b) Evidence The state has given notice that it seeks to introduce evidence pursuant to Fed.R.Evid. 404(b) regarding the following prior bad acts: 1. Elmer’s alleged diversion and use of cocaine and marijuana in October 1991; 2. Elmer’s alleged firing of shots at drug traffickers on March 16, 1992, under circumstances other than self-defense; 3. Elmer’s alleged statement to Agent Tom Watson on April 2, 1992, that Elmer “shot the face off a man in Morley Tunnel” in Nogales; and, 4. Elmer’s killing of an unarmed man on June 12, 1992. The defense vehemently objects to the admission of each of these matters. 1. Evidence of Drug Diversion and Use in October 1991 Through the testimony of two witnesses, Elmer’s ex-wife .and an informant whom the state admits is highly impeachable, the state seeks to introduce evidence that in the fall of 1991 Elmer found drugs, including cocaine, and diverted them to his own use. No charges have ever been brought against Elmer concerning these matters. As of June 12, 1992, Elmer had not been suspended from his employment as a Border Patrol Agent as a result of these allegations. The state does not claim that Elmer used drugs at or near the time that the shots were allegedly fired by Elmer at the illegal aliens on March 18, 1992. During hearings on Elmer’s pretrial motions in connection with his murder trial, counsel for the state indicated" }, { "docid": "5333619", "title": "", "text": "that he fired, in self-defense in the direction of a tree where the man was positioned. Shortly thereafter, Watson joined Elmer and the body of Dario Miranda-Valenzuela was discovered. Elmer moved the deceased’s body approximately fifty feet and Watson testified that Elmer told him not to report the matter and gestured in Watson’s direction with a weapon. Neither Watson nor Elmer reported the matter that night, but the next day Watson informed a supervisor and Elmer was arrested by local sheriffs deputies. Despite Elmer’s acquittal on all charges, the state seeks to introduce this evidence at Elmer’s aggravated assault trial. The state correctly points out that Elmer’s acquittal is not necessarily a bar to the introduction of these matters pursuant to Rule 404(b). Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). Nor is the fact that this evidence involves events occurring after the assaults for which Elmer will stand trial a reason compelling exclusion. United States v. Bibo-Rodriguez, 922 F.2d 1398, 1400 (9th Cir.), cert. denied, — U.S. -, 111 S.Ct. 2861, 115 L.Ed.2d 1028 (1991). The state seeks to introduce evidence that on June 12, 1992, Elmer shot an unarmed alien twice in the back, attempted to conceal the body, and failed to report the firing of shots.' The state indicates that it has no objection to the jury being informed that another jury found the defendant not guilty based upon self-defense. The state maintains that this evidence is admissible because it constitutes another occasion on which Elmer fired shots and failed to file a report thereof, as required by Border Patrol regulation, The state also suggests that it was as a result of these occurrences that the March 18, 1992, assaults came to light, and therefore this evidence completes the story of the March 18, 1992, assaults. It is undeniable that this evidence is extremely prejudicial. While one solution may appear to be to merely restrict the state to proof that on June 12, 1992, Elmer fired shots and failed to file a report thereof, this result is inappropriate. Regardless of the" }, { "docid": "19062631", "title": "", "text": "Cir.1999). However, “Rule 404(b) applies just to evidence of other bad acts or crimes — those other than the crime charged. Where evidence of ‘bad acts’ is direct proof of the crime charged, Rule 404(b) is, of course, inapplicable.” United States v. Arboleda, 929 F.2d 858, 866 (1st Cir.1991) (internal quotation marks omitted) (emphasis in original). When determining whether evidence constitutes direct proof of a narcotics conspiracy, we have looked to whether the contested incident shares “temporal proximity and factual similarity” with the conspiracy. Escobar-de Jesus, 187 F.3d at 168. In addition, “this court has held that scales, firearms and large amounts of cash are each probative of the intent to distribute narcotics.” United States v. Ford, 22 F.3d 374, 383 (1st Cir.1994). When the police officers found Mangual in the Ponce apartment, the officers also found a loaded firearm, three quarters of a kilo of cocaine, a scale, and approximately $1,000 in cash, among other items (collectively, “Ponce evidence”). The arrest occurred in 1993, during the conspiracy period, and in the area in which the indictment alleged that Mangual distributed cocaine. Although there was no evidence that the cocaine found in Mangual’s possession came from Antonio, the Ponce evidence corroborates Antonio’s testimony that Mangual was a cocaine distributor at the time of the charged conspiracy. As evidence of the conspiracy, the gun, cocaine, and money are part of the charged crime, which does not implicate Rule 404(b). Therefore, we do not address Mangual’s argument that he was not provided reasonable prior notice of Agent Marrero’s testimony as required by Rule 404(b). 2. 2006 Arrest Mangual contends that Agent Par-do’s testimony regarding the cocaine and marijuana, which were found in the Flori da residence where he was arrested in 2006, should have been excluded as evidence of subsequent bad acts, as irrelevant, and. as unfairly prejudicial. See Fed.R.Evid. 404(b), 401, 403. He argues that the testimony regarding the illegal drugs found when he was arrested is outside the scope of the charged conspiracy, which ended four years earlier. He also argues that the evidence contributed to his conviction on the" }, { "docid": "5333615", "title": "", "text": "Fed.R.Evid. 402 provides that “[a]ll relevant evidence is admissible,” Rule 403 provides that “relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...” In order to be admissible at trial, prior bad act evidence must be sufficient to support a finding by a jury that the defendant committed the act. Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). The Ninth Circuit has repeatedly stated that Rule 404(b) was designed to prevent the government from introducing extraneous evidence which may cause a jury to convict even in the absence of adequate proof of the crimes charged, merely because the defendant is a bad person. United States v. Hill, 953 F.2d 452, 457 (9th Cir.1991) (convictions for conspiracy to distribute cocaine and attempted possession of cocaine reversed due to erroneous admission of evidence that five years before alleged conspiracy, defendant used cocaine with witness); United States v. Brown, 880 F.2d 1012, 1014. (9th Cir.1989) (convictions for first degree murder and use of firearm during felony reversed due to erroneous admission of evidence of two prior acts involving firearms). When prior bad act evidence has minimal probative value in contrast to its unfairly prejudicial impact it should be excluded. United States v. Bettencourt, 614 F.2d 214, 218 (9th Cir.1980). This evidence is inadmissible. 2. Evidence of March 16, 1992, Assaults The state has given notice that it intends to introduce evidence that two days prior to the alleged March 18,1992, assaults, Elmer allegedly fired shots at several suspected drugtraffickers. These individuals dropped the drugs they were transporting and agents seized the drugs. The state contends that this incident constitutes proof of another occasion on which the defendant used deadly force other than in self-defense, in violation of Arizona law. A.R.S. § 13-1204. This evidence is admissible at trial. 3. Elmer’s Morley Tunnel Statement The state next seeks to introduce testimony that on April 2, 1992, Elmer told Border Patrol Agent Tom Watson that he had “shot the face off a man” in Morley Tunnel, Nogales, Arizona. Morley Tunnel" } ]

[ { "docid": "22657334", "title": "", "text": "penalty within the range already available to it without the special finding of visible possession of a firearm. . . . The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. Petitioners’ claim that visible possession under the Pennsylvania statute is ‘really an element of the offenses for which they are being punished- — that Pennsylvania has in effect defined a new set of upgraded felonies — would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punish ment, ef 18 U. S. C. § 2113(d) (providing separate and greater punishment for bank robberies accomplished through ‘use of a dangerous weapon or device’), but it does not.” Id., at 87-88. Finally, as we made plain in Jones last Term, Almendarez-Torres v. United States, 523 U. S. 224 (1998), represents at best an exceptional departure from the historic practice that we have described. In that case, we considered a federal grand jury indictment, which charged the petitioner with “having been ‘found in the United States . . . after being deported,’” in violation of 8 U.S.G. § 1326(a) — an offense carrying a maximum sentence of two years. 523 U. S., at 227. Almendarez-Torres pleaded guilty to the indictment, admitting at the plea hearing that he had been deported, that he had unlawfully reentered this country, and that “the earlier deportation had taken place ‘pursuant to’ three earlier ‘convictions’ for aggravated felonies.” Ibid. The Government then filed a presentenee report indicating that Almendarez-Torres’ offense fell within the bounds of § 1326(b) because, as specified in that provision, his original deportation had been subsequent to an aggravated felony conviction; accordingly, Almendarez-Torres could be subject to a sentence of up to 20 years. Almendarez-Torres objected, contending that because the indictment “had not mentioned his- earlier aggravated felony convictions,” he could be sentenced to no more than two years in prison. Ibid. Rejecting Almendarez-Torres’ objection, we concluded that sentencing him to a term higher than that attached to" } ]

[ { "docid": "22411026", "title": "", "text": "adopted to address similar questions. See United States v. Torres-Diaz, 438 F.3d 529, 536-38 (5th Cir.2006); Sanchez-Ruedas, 452 F.3d at 413-14. B. Apprendi Challenge Santiesteban also contends that 8 U.S.C. § 1326(b) violates the Sixth Amendment under Apprendi. 530 U.S. at 466, 120 S.Ct. 2348. He acknowledges that 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), but raises it to preserve it for further review. We have “repeatedly rejected arguments like the one made by [Santiesteban] and ... held that Almendarez-Torres remains binding despite Apprendi.” United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.2005); see also United States v. Delgado-Nunez, 295 F.3d 494, 498 (5th Cir.2002) (“Apprendi did not overrule AlmendarezTorres, which therefore remains good law.”). Accordingly, Santiesteban’s argument that § 1326 is unconstitutional in light of Apprendi fails. III. CONCLUSION Santiesteban’s guilty-plea conviction and the sentence imposed are AFFIRMED. . The record does not contain either the Texas charging instrument or any other documents or pleadings in the robbery case. . The Commentary to U.S.S.G. § 2L1.2(b)(l)(A)(ii) defines the following as crimes of violence: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. U.S.S.G. § 2L1.2, cmt. n. l(B)(iii) (2005). When reviewing the application of the U.S.S.G., we look to the version in effect at the time of the sentencing. U.S.S.G. § 1B1.11. . Santiesteban relies upon Vargas-Duran, Calderon-Pena, and Sarmiento-Funes, but those cases do not support his position. In those cases, we considered the second prong of the crime of violence definition, whether the underlying statute of conviction \"has as an element the use, attempted use, or threatened use of physical force against another.” See Vargas-Duran, 356 F.3d at 599-600; Calderon-Pena, 383 F.3d at 256-58; United States v. Sarmiento-Funes, F.3d 336, 340-42 (5th Cir.2004). Although Sarmiento-Funes discusses both prongs" }, { "docid": "19652777", "title": "", "text": "EDITH H. JONES, Chief Judge: Agustín Pineda-Arrellano (“Pineda”) appeals his guilty plea conviction and sentence for illegal reentry. Pineda argues that the felony and aggravated felony provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the courts treat a defendant’s prior felony conviction as a statutory ground for a sentencing enhancement rather than as an element of the offense, which, pursuant to the Sixth Amendment, should be presented to the jury. Pineda’s case is one of hundreds, if not thousands, in this circuit in which counsel have raised this constitutional challenge. We take this opportunity to state that this issue no longer serves as a legitimate basis for appeal. Pineda makes the familiar contention that Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), was incorrectly decided and that a majority of the Supreme Court would overrule it in light of the subsequent decision in Apprendi. We have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding precedent until and unless it is officially overruled by the Supreme Court. See, e.g., United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.2005). Pineda properly concedes that his argument is foreclosed by Almendarez-Torres and circuit precedent, but he nevertheless raised it as his sole appellate issue to preserve it for Supreme Court review. This court has patiently entertained the identical argument in countless cases. Now, however, a majority of the Supreme Court has reaffirmed Almendarez-Torres in James v. United States, - U.S. -, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), stating that “we have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes.” Id. at 1600 n. 8 (citing Almendarez-Torres ). Because the Supreme Court treats Almendarez-Torres as binding precedent, Pineda’s argument is fully foreclosed from further debate. That James interpreted the Armed Career Criminal Act is not a distinguishing feature from the illegal reentry statute under which this appellant was convicted, because both statutes enhance" }, { "docid": "22423766", "title": "", "text": "PER CURIAM: Teofilo Santos Rivera appeals his sentence following a guilty plea to illegal entry after deportation pursuant to 8 U.S.C. § 1326(b)(2). We review the district court’s application of the Sentencing Guidelines de novo and its factual findings for clear error. See United States v. Stevenson, 126 F.3d 662, 664 (5th Cir.1997). Rivera first contends that his sentence should be vacated' because his state felony conviction for possession of a controlled substance, which resulted in an increased sentence under 8 U.S.C. § 1326(b)(2), was an element of the offense that should have been charged in the indictment. Rivera acknowledges that his argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the issue for Supreme Court review in light of the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi did not overrule Almendarez-Torres. See Apprendi, 120 S.Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000), cert. denied, - U.S. -, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001). Rivera’s argument is foreclosed. Rivera also challenges the characterization of his prior Texas conviction for cocaine possession as an “aggravated felony” offense and the concomitant sixteen-level increase in his base offense level under U.S.S.G. § 2L1.2(b)(l)(A), contending that his sentence should be reduced by the rule-of-lenity. Rivera’s constitutional claim that the rule-of-lenity is applicable is reviewed de novo. United States v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir.), cert. denied, 529 U.S. 1135, 120 S.Ct. 2017, 146 L.Ed.2d 965 (2000). In United States v. Hinojosa-Lopez, 130 F.3d 691, 692-93, 694 (5th Cir.1997), we held that a state conviction is an “aggravated felony” pursuant to § 2L1.2(b)(l)(A) if “(1) the offense was punishable under the Controlled Substances Act and (2) it was a felony” under applicable state law. Id. at 694. Rivera has not explicitly disputed that, as a matter of statutory construction, his challenge to the § 2L1.2(b)(l)(A) increase is foreclosed by Hinojosa-Lopez. See United States v. Garcia Abrego, 141 F.3d" }, { "docid": "23473622", "title": "", "text": "but he asserts that he is raising the issue to preserve it for further review. Garcia-Mendez considered the Texas burglary of a habitation statute and held that “ ‘burglary of a habitation’ is equivalent to the enumerated [crime of violence] offense of ‘burglary of a dwelling.’ ” Id. Thus, as Valdez concedes, under the existing precedent of this court, the district court did not err in determining that Valdez’s prior burglary offense was a crime of violence. Valdez’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Valdez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we have repeatedly rejected such arguments on the basis that AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Valdez properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review. AFFIRMED." }, { "docid": "22134112", "title": "", "text": "denied, — U.S. -, 126 S.Ct. 221, 163 L.Ed.2d 193 (2005). Here, we find no error, plain or otherwise. First, Martinez’s constitutional arguments are premised, in part, on the assumption that his uncharged prior convictions cannot be used to increase his statutory maximum sentence or his guidelines range. Martinez acknowledges that his position conflicts with Almendarez-Torres v. United States. See Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 1233, 140 L.Ed.2d 350 (1998) (concluding that prior convictions need not be pled in an indictment or proved to a jury beyond a reasonable doubt to trigger enhanced statutory máxi-mums under 8 U.S.C. § 1326). Martinez argues that Almendarez-Torres has been undermined by subsequent Supreme Court decisions such as Apprendi, Blakely, Booker, and, most recently, Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1262-63, 161 L.Ed.2d 205 (2005). While those recent decisions “may arguably cast doubt on the future prospects of AlmendarezTorres’s holding regarding prior convictions, the Supreme Court has not explicitly overruled Almendarez-Torres. As a result, we must follow Almendarez-Torres.” United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n. 3 (11th Cir.), cert. denied, — U.S. —, 126 S.Ct. 457, 163 L.Ed.2d 347 (2005). Therefore, Apprendi and Blakely did not preclude the district court from enhancing Martinez’s sentence based on uncharged prior convictions. Second, this Court has already rejected the due process arguments Martinez makes. See United States v. Duncan, 400 F.3d 1297, 1307 (11th Cir.), cert. denied, — U.S. —, 126 S.Ct. 432, 163 L.Ed.2d 329 (2005) (concluding that the defendant’s due process rights were not violated where, at the time the defendant committed the offense, the United States Code and the guidelines advised the defendant of the statutory maximum sentence and “that a judge would engage in fact-finding to determine his sentence and could impose up to” the statutory maximum sentence). At the time Martinez committed his offense in 2003, 8 U.S.C. § 1326(b)(2) ad vised Martinez that, if he was convicted of being found in the United States after having been convicted of an aggravated felony and then removed from the United States," }, { "docid": "22067224", "title": "", "text": "qualifies as a conviction for the enumerated offense of “aggravated assault,” and therefore that Alvarez was convicted of a crime of violence under section 2L1.2(b)(l)(A)(ii). Accordingly, we hold that the district court did not err in imposing the sixteen-level sentence enhancement. B. Alvarez’s constitutional challenge is foreclosed Alvarez contends that the sentence imposed by the district court is unconstitutional because it exceeds the statutory maximum sentence allowed for the § 1326(a) offense charged in his indictment. Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), he challenges the constitutionality of § 1326(b)’s treatment of his prior felony conviction as a sentencing factor rather than as an element of the offense that must be found by the jury. Alvarez’s challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the Supreme Court held that the treatment of prior convictions as sentencing factors under § 1326(b) was constitutional. This court has repeatedly rejected arguments like the one made by Alvarez and has held that Almendarez-Torres remains binding despite Apprendi. See, e.g, United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.2005); United States v. Mendez-Villa, 346 F.3d 568, 570-71 (5th Cir.2003). Alvarez concedes that his argument is foreclosed and raises the argument to preserve it for further review. IV. CONCLUSION For the reasons stated above, the sentence imposed by the district court is AFFIRMED. AFFIRMED. . The commentary to § 2L1.2 is binding and is equivalent in force to the Guideline language, itself, as long as the language and the commentary are not inconsistent. United States v. Rayo-Valdez, 302 F.3d 314, 318 n. 5 (5th Cir.2002). . Because we conclude that Alvarez's conviction qualifies as a conviction for the enumerated offense of \"aggravated assault,” we need not decide whether his offense has as an element the use, attempted use, or threatened use of physical force against the person of another. See U.S.S.G. § 2L1.2 cmt. n.l(B)(iii)." }, { "docid": "19652778", "title": "", "text": "such arguments on the basis that Almendarez-Torres remains binding precedent until and unless it is officially overruled by the Supreme Court. See, e.g., United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.2005). Pineda properly concedes that his argument is foreclosed by Almendarez-Torres and circuit precedent, but he nevertheless raised it as his sole appellate issue to preserve it for Supreme Court review. This court has patiently entertained the identical argument in countless cases. Now, however, a majority of the Supreme Court has reaffirmed Almendarez-Torres in James v. United States, - U.S. -, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), stating that “we have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes.” Id. at 1600 n. 8 (citing Almendarez-Torres ). Because the Supreme Court treats Almendarez-Torres as binding precedent, Pineda’s argument is fully foreclosed from further debate. That James interpreted the Armed Career Criminal Act is not a distinguishing feature from the illegal reentry statute under which this appellant was convicted, because both statutes enhance a defendant’s punishment on account of certain prior felony convictions. Moreover, the Supreme Court’s acknowledgment in footnote eight that James stipulated to a prior offense does not detract from the force of its simultaneous reliance on Almendarez-Torres. We lower courts are not empowered to deconstruct such clear statements of governing authority by the Supreme Court. See also United States v. Grisel, 488 F.3d 844, 845-46, 2007 WL 1599009, at *1 (9th Cir.2007) (en banc) (noting that Almendarez-Torres has never been overruled but has been applied repeatedly by the Supreme Court, most recently in James); United States v. Davis, 487 F.3d 282, 287-88 (5th Cir.2007) (noting, after James, that the Apprendi Court “explicitly refrained from overruling AT mendarez-Torres”). The dissent takes issue with our view that James has closed the book on reconsideration of Almendarez-Torres. The Supreme Court’s decision is hardly surprising, however. Despite the dissent’s overstated claim that we are denying future defendants their appeal rights, few issues have less merit for a defendant than the potential overruling of Almendarez-Torres—and defense counsel are well aware" }, { "docid": "22666701", "title": "", "text": "8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional on their face and as applied in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). According to Garza-Lopez, the “felony” and - “aggravated felony” provisions found in these sections are essential elements of the offense that must be pled in the indictment and proved beyond a reasonable doubt, not sentencing enhancement factors that a judge should determine. He notes that in Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court rejected this argument, holding that “Congress intended to set forth a sentencing factor in subsection (b)(2) [of 8 U.S.C. § 1326] and not a separate criminal offense.” Nevertheless, he argues that in light of Apprendi, there is reason to think that Almendarez-Torres was wrongly decided. While Garza-Lopez thinks there is reason to believe Almendarez-Torres was wrongly decided, he admits in his brief that his argument that 8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional is foreclosed in this circuit by Almendarez-Torres. He then states that he is simply raising this argument on appeal to preserve it for possible review by the Supreme Court. Because Garza-Lopez made no objection to the alleged constitutional error below, we review it for plain error. United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994). This court has held that “[i]t is self-evident that basing a conviction on an unconstitutional statute is both ‘plain’ and ‘error’ ....” Id. at 951. Garza-Lopez’s argument that §§ 1326(b)(1) and (2) are unconstitutional after Apprendi fails in light of Almendarez-Torres and Fifth Circuit precedent. As Garza-Lopez readily admits, in Almendarez-Torres, the Supreme Court effectively rejected his argument. See Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. Furthermore, Apprendi did not overrule Almendarez-Torres. Instead, the Supreme Court stated in Apprendi that “we need not revisit [Almendarez-Torres] for purposes of our decision today to tréat the case as a narrow exception to the general rule we recalled at the outset.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. This court has repeatedly rejected arguments like the" }, { "docid": "22468314", "title": "", "text": "Supreme Court held that § 1326(b)(2) “simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime.” 523 U.S. at 226, 118 S.Ct. 1219. The Court in Almendarez-Torres rejected the argument that, because the fact of recidivism increased the maximum term to which a defendant could be sentenced, recidivism was an element of the crime that must be charged in the indictment and proven beyond a reasonable doubt. Id. at 239, 118 S.Ct. 1219. Martinez argues that the Supreme Court has effectively overruled Almenda-rez-Torres. We again reiterate that, while Apprendi may cast doubt on the continuing viability of Almendarez-Torres, Al-mendarez-Toires remains the law unless and until it is overruled by the Supreme Court. Reyes-Pacheco, 248 F.3d at 945; United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000). Thus, the district court properly concluded that Martinez’s convictions for possession for marijuana for sale were aggravated felony convictions. We hold that “[t]he district court did not err by considering [Martinez’s] prior aggravated felony conviction[s] despite the fact that such conduct was neither admitted nor charged in the indictment, presented to a jury, and proven beyond a reasonable doubt.” Reyes-Pacheco, 248 F.3d at 945. The second step in determining whether the district court correctly subjected Martinez to the twenty-year statutory-maximum sentence in § 1326(b)(2) requires us to examine whether the district court correctly found that Martinez had been removed from the United States and that the removal occurred after his prior convictions for possession of marijuana for sale. In finding Martinez guilty of illegal reentry under § 1326(a), the jury necessarily found that Martinez had been removed from the United States, because prior removal is an element of the government’s § 1326(a) case. However, Martinez argues that because he did not admit and the jury did not find the date of his prior removal, his statutory-maximum sentence was only two years. He argues that the district judge violated Apprendi by finding that his prior removal was subsequent to his 1992 aggravated felony conviction. In support of this argument, Martinez relies on our decision in Covian-Sandoval," }, { "docid": "23428596", "title": "", "text": "“reasonable apprehension of imminent physical injury” with a deadly weapon is COV); United States v. Drummond, 240 F.3d 1333, 1337 (11th Cir.2001) (New York crime of menacing required intentionally placing another in fear of death or physical injury through the use of a deadly weapon and constituted a COV); cf. United States v. Perez-Vargas, 414 F.3d 1282, 1285-86 (10th Cir.2005) (no COV in statute prohibiting, among other behaviors, criminal negligence causing bodily injury with a deadly weapon). Under the rationale of Treto-Martinez, then, we hold that Dominguez’s conviction for aggravated battery under the specific subsection of Florida law qualifies as a COV because it has as an element at least a threatened use of force. III. Dominguez contends that the 33-month term of imprisonment imposed in his case exceeds the statutory maximum sentence allowed for the § 1326(a) offense charged in his indictment. He challenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury in light of Apprendi. Dominguez’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the Supreme Court held that treatment of prior convictions as sentencing factors in § 1326(b)(1) and (2) was constitutional. Although Dominguez contends that a majority of the Supreme Court would now consider Almendarez-Torres to be incorrectly decided in light of Apprendi, “[t]his court -has repeatedly rejected arguments like the one made by [Dominguez] and has held that Almenda-rez-Torres remains binding despite Apprendi” United States v. Garzar-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, - U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Dominguez concedes as much, but he raises the argument to preserve it for further review. rv. For the foregoing reasons, Dominguez’s sentence is AFFIRMED. AFFIRMED. . The parties do not dispute that Dominguez is the same individual as that named in the state court information." }, { "docid": "22468313", "title": "", "text": "apply, (1) the defendant must have been convicted of an aggravated felony and (2) thereafter, the defendant must have been removed from the United States. Under this standard, the first step in our analysis is determining whether Martinez was convicted of an aggravated felony. The district court found, at sentencing, that Martinez pled no contest to two counts of possession of marijuana for sale under California Health and Safety Code section 11359 in 1992. Our precedent forecloses Martinez’s argument the district court violated Apprendi by finding the fact of his prior aggravated felony conviction. For example, in United States v. Reyes-Pacheco, 248 F.3d 942, 943-44 (9th Cir.2001) the defendant contended that “the district court improperly enhanced his [§ 1326] sentence on the basis of a prior aggravated felony conviction that was neither admitted nor charged in the indictment and proven beyond a reasonable doubt.” We found that the defendant’s argument was foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Reyes-Pacheco, 248 F.3d at 944. In Al-mendarez-Torres, the Supreme Court held that § 1326(b)(2) “simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime.” 523 U.S. at 226, 118 S.Ct. 1219. The Court in Almendarez-Torres rejected the argument that, because the fact of recidivism increased the maximum term to which a defendant could be sentenced, recidivism was an element of the crime that must be charged in the indictment and proven beyond a reasonable doubt. Id. at 239, 118 S.Ct. 1219. Martinez argues that the Supreme Court has effectively overruled Almenda-rez-Torres. We again reiterate that, while Apprendi may cast doubt on the continuing viability of Almendarez-Torres, Al-mendarez-Toires remains the law unless and until it is overruled by the Supreme Court. Reyes-Pacheco, 248 F.3d at 945; United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000). Thus, the district court properly concluded that Martinez’s convictions for possession for marijuana for sale were aggravated felony convictions. We hold that “[t]he district court did not err by considering [Martinez’s] prior aggravated felony conviction[s] despite the fact that such" }, { "docid": "22411025", "title": "", "text": "Code § 211.1(2). Notwithstanding the minor differences between the definitions, the court concluded that “California’s focus on the defendant’s intentional conduct in contrast to the Model Penal Code’s intentional result is not enough to remove the California statute from the family of offenses commonly known as ‘aggravated assault.’ ” Id. at 414. A similar conclusion is appropriate here. Although the majority of states focus on an act of force in articulating the requisite level of immediate danger, and the Texas statute focuses on the realization of the immediate danger through actual or threatened bodily injury, the difference is not enough to remove the Texas statute from the family of offenses commonly known as “robbery.” Rather, the elements of the Texas statute substantially correspond to the basic elements of the generic offense, in that they both involve theft and immediate danger to a person. Accordingly, the district court did not err by enhancing Santiesteban’s sentence for his prior § 29.02 conviction. This holding is the natural result of the “common sense approach” that this court has adopted to address similar questions. See United States v. Torres-Diaz, 438 F.3d 529, 536-38 (5th Cir.2006); Sanchez-Ruedas, 452 F.3d at 413-14. B. Apprendi Challenge Santiesteban also contends that 8 U.S.C. § 1326(b) violates the Sixth Amendment under Apprendi. 530 U.S. at 466, 120 S.Ct. 2348. He acknowledges that 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), but raises it to preserve it for further review. We have “repeatedly rejected arguments like the one made by [Santiesteban] and ... held that Almendarez-Torres remains binding despite Apprendi.” United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.2005); see also United States v. Delgado-Nunez, 295 F.3d 494, 498 (5th Cir.2002) (“Apprendi did not overrule AlmendarezTorres, which therefore remains good law.”). Accordingly, Santiesteban’s argument that § 1326 is unconstitutional in light of Apprendi fails. III. CONCLUSION Santiesteban’s guilty-plea conviction and the sentence imposed are AFFIRMED. . The record does not contain either the Texas charging instrument or any other documents or pleadings in the robbery case. ." }, { "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": "9440420", "title": "", "text": "nor would such crossings be relevant to the prior offense pattern if they in fact occurred. Therefore, our justification in Corro-Balbuena for interpreting illegal reentry as a continuing offense is absent in this appeal; in fact, the flexibility and common sense that governed our interpretation of 8 U.S.C. § 1326 in Corro-Balbuena guide our holding today. For the reasons stated above, we conclude that our past holdings do not compel us to conclude that the district court plainly erred in treating Vargas-Gareia’s resisting arrest offense as part of his prior criminal history. Vargas-Garda does not challenge the reasonableness of his sentence or, indeed, any aspect of the sentence other than the calculation under the Guidelines of his criminal history score. B. Vargas-Garcia’s Almendarez-Torres Argument Vargas-Garda also contends that the district court erred by treating his prior aggravated felony conviction as a sentencing factor rather than as an element of his offense because it was not alleged in his indictment, nor was it ever established beyond a reasonable doubt. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court rejected claims that prior offenses must be treated as separate elements of a charged offense, holding instead that prior convictions can be treated as sentencing factors in an illegal reentry context. This issue is foreclosed before this court by United States v. IzaguirreFlores, 405 F.3d 270, 277-78 (5th Cir.2005), cert. denied, — U.S. —, 126 S.Ct. 253, 163 L.Ed.2d 231 (2005) (quoting United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000), for the proposition that this court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it”). Vargas-Garda correctly concedes that relief on this issue remains foreclosed before this court by Almendarez-Torres and Izaguirre-Flores. He raises this issue only to preserve it for possible Supreme Court review, and we decline to consider it further. IV. CONCLUSION For the reasons stated above, we AFFIRM. . Vargas-Garcia had been removed on September 14, 2001, after being apprehended for unlawfully entering the United States. . The total criminal history score recommended by" }, { "docid": "22847301", "title": "", "text": "the now-advisory Sentencing Guidelines was in effect when Fernandez-Cusco was sentenced in February 2005 for his illegal-reentry conviction. His base offense level of 8 was increased by 16 levels, pursuant to Sentencing Guideline § 2L1.2(b)(l)(A)(ii), the district court adopting the recommendation in the Presentence Investigation Report (PSR) that Fernandez^Cusco’s previous Minnesota sexual-conduct crime was a “crime of violence”. After a three-level aceeptance-of-responsibility reduction, his total offense level was 21, with an advisory guideline range of 46 to 57 months. Fernandez-Cusco was sentenced to 46 months in prison, followed by a two-year supervised release. II. As described, Fernandez-Cusco raises three issues. The principle issue concerns the erime-of-violence ruling. He concedes the other two issues are foreclosed by our precedent. A. Concerning his conviction and sentence, Fernandez-Cusco contends the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional. This issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Fernandez-Cusco maintains Al-mendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule it in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), our court has repeatedly rejected this contention on the basis that Almendarez-Torres remains binding. See United States v. Garzcu-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Fernandez-Cusco concedes this claim is foreclosed; he raises it only to preserve it for further review. B. Fernandez-Cusco was sentenced a few weeks after the Sentencing Guidelines were held in January 2005 to be only advisory. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Nevertheless, post-Booker, district courts must still consider, and properly apply, the Guidelines. E.g., United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005); United States v. Mares, 402 F.3d 511, 518 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). Fernandez-Cusco claims his prior guilty-plea conviction for criminal sexual conduct is not a crime of violence under the 2004 Guideline § 2L1.2(b)(l)(A)(ii). He did" }, { "docid": "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": "22058577", "title": "", "text": "result would have been obtained had the question been properly placed before the grand and petit juries, this particular question concerning the date of one of Salazar-Lopez’s removals is not one of them. In light of the record here, “we are satisfied beyond a reasonable doubt that ... the result ‘would have been the same absent the error.’ ” Zepeda-Martinez, 470 F.3d at 913-14 (quoting Neder, 527 U.S. at 19, 119 S.Ct. 1827). III. Conclusion Although the temporal relationship between Salazar-Lopez’s removal and his prior conviction should have been alleged in the indictment and proved to the jury, we nevertheless affirm the sentence imposed because we find that this error was harmless in his case. AFFIRMED. . In this opinion we address only Salazar-Lopez’s sentencing contentions. We resolve his challenge to his conviction in an accompanying memorandum disposition. . This difference in statutory maximum sentences also results in a difference as to the maximum term of supervised release that can be imposed. Because § 1326(a) has a maximum sentence of two years, only one year of supervised release can follow the prison term, while the higher statutory maximum of § 1326(b)(1) means that the imposition of up to three years of supervised release is permitted. See 8 U.S.C. § 1326(a),(b); 18 U.S.C. §§ 3583(b), 3559(a). . Salazar-Lopez's other sentencing contentions, that we ought to limit Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), to its facts under the doctrine of constitutional doubt, that Almendarez-Torres has been overruled, and that § 1326(b) is unconstitutional, are foreclosed by Ninth Circuit precedent. United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006) (citing United States v, Beng-Salazar, 452 F.3d 1088 (9th Cir.2006); United States v. Diaz-Argueta, 447 F.3d 1167, 1170 (9th Cir.2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005)). . The Government argues that we should not follow Covian-Sandoval because it conflicts with other Circuit precedent. We see no conflict with the first case the Government cites, United States v. Castillo-Rivera, 244 F.3d 1020, 1025 (9th Cir.2001). Castillo-Rivera addressed only the continuing viability of" }, { "docid": "16406246", "title": "", "text": "4A1.2(c)(l); United States v. Moore, 997 F.2d 30, 33 (5th Cir.1993). Alfaro only received a sentence of ten days imprisonment for his evading arrest conviction. Thus, the district court erred in assigning a criminal history point for this offense. Because we vacate Alfa-ro’s sentence based on the sixteen-level enhancement, however, we need not address whether the court’s erroneous imposition of the criminal history point is plain error requiring reversal. C. The Constitutionality of 8 U.S.C. § 1326(b) Finally, Alfaro argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional. While Alfaro notes that this argument appears to be foreclosed by the Supreme' Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), he contends that Almendarez-Torres was wrongly decided. In support of his argument, he claims that Justice Thomas, who provided a critical fifth vote in Almendarez-Torres, now appears to have repudiated his position in Almendarez-Torres. Thus, Alfaro concludes that five members of the Supreme Court now appear to be of the view that Almendarez-Torres was incorrectly decided. Because Alfaro made no objection to the alleged constitutional error below, we review his claim for plain error. Olano, 507 U.S. at 732-37, 113 S.Ct. 1770; Knowles, 29 F.3d at 951. In this circuit, “[i]t is self-evident that basing a conviction on an unconstitutional statute is both ‘plain’ and ‘error’ .... ” Knowles, 29 F.3d at 951. Alfaro’s argument that §§ 1326(b)(1) and (2) are unconstitutional, however, fails in light of Almendarez-Torres and Fifth Circuit precedent. As Alfaro recognizes, in Almendarez-Torres, the Supreme Court effectively rejected his argument. See Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. Almendarez-Torres has not been overruled and is still good law. Additionally, this court has repeatedly rejected arguments like the one made by Alfaro as being foreclosed by Almendarez-Torres. See, e.g., United States v. Mendez-Villa, 346 F.3d 568, 570-71 (5th Cir.2003) (per curiam) (holding that Almendarez-Torres remains binding despite Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)); United States v. Delgado-Nunez, 295 F.3d 494, 498" }, { "docid": "23473621", "title": "", "text": "determining that, a warrant of deportation was reliable and admissible because the official preparing the warrant had no motivation to do anything other than “mechanically register an unambiguous factual matter.” In light of these cases and the nature of warrants of deportation, we hold that warrants of deportation do not constitute testimonial hearsay under Crawford. Valdez argues that the district court erred in increasing his offense level by 16 levels based on his prior commission of a crime of violence. He contends that the Texas offense of burglary of a habitation, for which he had been convicted in the past, is not a crime of violence because it does not have as an element the use, attempted use, or threatened use of physical force against the person of another and because it is not equivalent to the enumerated offense of burglary of a dwelling. Valdez acknowledges that this issue is foreclosed by this court’s decision in United States v. Garcia-Mendez, 420 F.3d 454, 457 (5th Cir.2005), petition for cert, filed (Dec. 15, 2005) (No. 05-8542), but he asserts that he is raising the issue to preserve it for further review. Garcia-Mendez considered the Texas burglary of a habitation statute and held that “ ‘burglary of a habitation’ is equivalent to the enumerated [crime of violence] offense of ‘burglary of a dwelling.’ ” Id. Thus, as Valdez concedes, under the existing precedent of this court, the district court did not err in determining that Valdez’s prior burglary offense was a crime of violence. Valdez’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Valdez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we have repeatedly rejected such arguments on the basis that AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005)." }, { "docid": "22890765", "title": "", "text": "in Luna-Herrera. We therefore reaffirm our holding in Luna-Herrera. We also reject Garcia-Cardenas’s argument that the district court failed to ad dress his objection to section 2L1.2(b). The district court in fact addressed this objection, explaining that it was not inclined to fundamentally alter the way in which this provision has been applied. Because the district court was bound by our precedent, its explanation was sufficient. See Rita, 127 S.Ct. at 2469 (“[When] the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively.”). III. Garcia-Cardenas contends that, because the facts of his prior conviction were neither alleged in the indictment nor admitted by him, the district court violated Apprendi by increasing the statutory maximum under § 1326(b)(2). As Garcia Cardenas properly concedes, this argument is foreclosed by our precedent and that of the Supreme Court. In Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court held that the fact of a prior conviction does not have to be determined by a jury before a sentencing court may use the conviction as the basis for an enhancement under § 1326. Garcia-Cardenas argues that we should limit Almendarez-Torres to its facts under the doctrine of constitutional doubt; that Almendarez-Torres has been overruled; and that § 1326(b) is unconstitutional. We have repeatedly rejected these arguments. See United States v. Salazar-Lopez, 506 F.3d 748, 751 n. 3 (9th Cir.2007), cert. denied, — U.S.-, 128 S.Ct. 2523, 171 L.Ed.2d 803 (2008); United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006); United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006). Moreover, the Supreme Court continues to treat Almendarez-Torres as binding precedent. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1600 n. 8, 167 L.Edüd 532 (2007) (“[W]e have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes.” (citing Almendarez-Torres, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350)). Accordingly, we are bound to reject Garcia-Cardenas’s arguments. IV." } ]

[ { "docid": "13170012", "title": "", "text": "court, before a new trial was held, the suit against the hospital was dismissed with prejudice. Appellant’s reply brief was filed October 26. On November 3 the record was again supplemented, this time to reflect the September 15 dismissal of the suit against the hospital. On our own motion we have raised, as we must, the matter of whether we have jurisdiction of the appeal. We conclude that we do not and dismiss the appeal. The district court did not enter a Rule 54(b) certificate permitting the appeal of the judgment against Dr. Campbell, which was taken when no appeal had been taken from the judgment against the hospital and the hospital’s motion for new trial or judgment n. o. v. was pending in the district court. The lack of a 54(b) certificate was, however, cured by the dismissal of the claim against the hospital. The former Fifth Circuit held that there is an exception to the requirements of Rule 54(b) that allows the separate appeal of a nonfinal judgment where a subsequent judgment of the district court effectively terminates the litigation. Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir. 1973); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir. 1980). These decisions are controlling on us. In each of these cases the appellant filed his notice of appeal prematurely before all claims had been adjudicated, but the pending claims were later decided. The court held that, considering together the judgment being appealed and the later judgments, the litigation was effectively terminated and, therefore, there was no longer a Rule 54(b) defect in the appeal. Likewise, here, the judgment in favor of Dr. Campbell and the later order dismissing the claim against the hospital, taken together, effectively terminated the litigation. Therefore, Rule 54(b) is not a bar to our jurisdiction over the appeal from the judgment in favor of Dr. Campbell. Nevertheless, the appeal must be dismissed because plaintiff did not file a new notice of appeal after the hospital’s motion for new trial was granted. FRAP 4(a)(4) renders ineffective a notice of appeal filed during" } ]

[ { "docid": "23182070", "title": "", "text": "It merely reiterates the rulings from its first order of November 17 and orders the parties to submit briefs on the issue of attorney’s fees. Because neither of the November 17, 1993, orders made a finding of liability or specified the amount of judgment, they were not final. Zink, 929 F.2d at 1020. Furthermore, we note that the Rule 58 separate document requirement “should be read, where reasonably possible, to protect the right to appeal.” Seiscom Delta, Inc. v. Two Westlake Park, 857 F.2d 279, 282 (5th Cir.1988). “It must be remembered that the rule is designed to simplify and make certain the matter of appealability. It is, not designed as a trap for the inexperienced .... The rule should be interpreted to prevent loss of the right of appeal, not to facilitate loss.” Seiscom Delta, Inc., 857 F.2d at 283, citing Bankers Trust Co. v. Mollis, 435 U.S. 381, 386, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (1978) (internal citations omitted). For the foregoing reasons, the August 19, 1994, order was the final judgment from which Meadowbriar timely appealed. II. Standing Defendants Grauke, Smith, and the City of Houston argue that Meadowbriar lacks standing to bring suit for damages arising from alleged violations of the Fair Housing Act and the Civil Rights Act. We disagree. The standard for establishing standing is set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992): Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of— the injury has to be fairly trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be" }, { "docid": "21590686", "title": "", "text": "it contained nothing faintly resembling a Rule 54(b) certificate. That order is thus not a final judgment under Rule 54(b)_ Nor was the later order entering an agreed judgment disposing of appellants’ claim against [the other two defendants] a final judgment under Rule 54(b) — it contained no certificate, and it did not adjudicate appellants’ rights as against [the first defendant]. Nevertheless, these two orders, considered togeth er, terminated this litigation just as effectively as would have been the case had the district judge gone through the motions of entering a single order formally reciting the substance of the earlier two orders. 473 F.2d at 1231. The instant appeal is on all fours with Jeteo: The summary judgment entered in December was made final and appealable on March 28, 1988, by the entry, on that date, of the Consent Judgment disposing of the remaining defendants. A timely notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam) (cited in In re Air Crash at Dallas/Fort Worth Airport on August 2, 1985, 852 F.2d 842 (5th Cir.1988)). See Houston v. Lack, — U.S. -, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245 (1988). Since the summary judgment entered in favor of American became final and appealable on March 28, Levron then had 30 days in which to file notice of appeal from that judgment or forfeit the right to appeal. The logic of Jeteo has been followed faithfully in this circuit. “[W]e have consistently held that there is an exception to the requirements of Rule 54(b) that allows the separate appeal of a nonfinal judgment where a subsequent judgment of the district court effectively terminates the litigation” (citing several cases). Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 255 (5th Cir.1985). Accord, Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 n. 7 (5th Cir.1980); Tower v. Moss, 625 F.2d 1161, 1165 (5th Cir.1980). See Davidson Oil Country Supply Co. v. Klockner, Inc., 780 F.2d 1258, 1260 (5th Cir.1986). The appellant failed to file" }, { "docid": "2769346", "title": "", "text": "the appeal must be dismissed. See Borne v. A&P Boat Rentals No. 4, Inc., 755 F.2d 1131, 1133 (5th Cir.1985); see also Matthews v. Ashland Chem., Inc., 703 F.2d 921, 922 (5th Cir.1983) (appeal dismissed as premature where the judgment dismissing plaintiffs claim against one of multiple defendants was not entered with the certification required by Rule 54(b)); 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2660 (3d ed.1998). As the Rule 54(b) final judgment did not encompass Tenet's claims against Bankers, we cannot conclude that the certification therein vests jurisdiction in this court to review those claims. . While, unlike Rule 54(b) certification, the separate document requirement of Rule 58 is not jurisdictional and may be waived, see Cook v. Powell Buick, Inc., 155 F.3d 758, 761 n. 8 (5th Cir.1998) (citing Barnhardt Marine Ins. v. New England Int'l Sur. of America, 961 F.2d 529 (5th Cir.1992)), in this case we cannot conclude that Bankers has waived the requirement since, while acknowledging the minute entry dismissal, it premised its motion to dismiss this appeal on the Rule 54(b) final judgment’s failure to expressly dismiss Tenet’s claims against Bankers. See Theriot, 951 F.2d at 88 (\"[U]nder [Bankers Trust Co. v. Mallis, 435 U.S. 381, 385 n. 6, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978)] ([per curiam] a decision may be appealed without the benefit of a separate document if, but only if, the district court and the parties, without objection, intended that the ruling be a final decision.”)); Hanson v. Town of Flower Mound, 679 F.2d 497, 501 (5th Cir.1982) (\"We conclude that we are free to hold that we may take jurisdiction of an appeal from a ‘final decision under [28 U.S.C.] § 1291, even though no separate judgment has been entered, when the parties fail to raise the issue'.”) (citations omitted). . The Louisiana First Circuit developed the following seven element test following requisites of article 2801: (1) A contract between two or more parties; (2) A juridical entity or person is established; (3) Contribution by all parties of either" }, { "docid": "22565765", "title": "", "text": "of the Advisory Committee on the 2002 amendments to Rule 58 instruct, Many of the enumerated motions [in Rule 58(a)(l)(A)-(E) ] are frequently made before judgment is entered. The exemption of the order disposing of the [enumerated] motion [from the separate document requirement] does not excuse the obligation to set forth the judgment itself on a separate document. And if disposition of the motion results in an amended judgment, the amended judgment must be set forth on a separate document. Accordingly, because the August 15, 2002, order lacked a required separate document, under amended Rules 4 and 58(b), the order was not deemed “entered” — and the time to file notice of appeal did not begin to run — until expiration of the 150-day period following the August 15 docket entry date of that order. As noted above, Rule 4(a)(1)(A) provides that in civil cases such as this one, a notice of appeal is timely if filed within 30 days from such “entry of judgment.” Freudensprung’s February 12, 2003, notice of appeal, which was filed on the 30th day after a judgment was deemed entered, was therefore timely filed. In sum, we have repeatedly recognized that Rule 58 “should be interpreted to prevent loss of the right to appeal, not to facilitate loss,” and see no reason to depart from this principle in this case. Hammack v. Baroid Corp., 142 F.3d 266, 269 (5th Cir.1998) (quoting Bankers Trust Co. v. Mallis, 435 U.S, 381, 385, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978)); accord, Theriot, 951 F.2d at 88 (citing In re Seiscom Delta, Inc., 857 F.2d 279, 283 (5th Cir.1988)). II. The propriety of the district court’s order compelling arbitration of the Jones Act and U.S. general maritime law claims against OTSI Having determined that Freuden-sprung’s notice of appeal was timely, we now turn to Freudensprung’s assertion that the district court erred by compelling arbitration of his Jones Act and U.S. general maritime law claims against OTSI. We affirm. A. Standard of review We review a district court’s ruling on a motion to compel arbitration and to stay litigation de" }, { "docid": "23037992", "title": "", "text": "timely, the Trustee has urged, in the alternative, that the district court’s decision, which dismissed Reid’s appeal from the bankruptcy court as untimely, should be affirmed. The bankruptcy court on June 20, 1985 entered an opinion dismissing Reid’s class proof of claim; however, the bankruptcy court failed to file a separate entry of judgment pursuant to Bankruptcy Rule 9021. As a result of the bankruptcy court’s oversight, Reid failed to commence an appeal to the district court within 10 days of the bankruptcy court’s June 20, 1985 order as required by Bankruptcy Rule 8002. The appeal was not perfected until September 20, 1985. Reid’s appeal was subsequently dismissed by the district court as untimely. Neither party was aware of the bankruptcy court’s failure to journalize its June 30, 1985 order; at least the issue was not argued on the appeal from the bankruptcy court to the district court. On appeal to this court, Reid, citing Indrelunas, argued for the first time that the district court had erred in dismissing his appeal since his appeal time had not commenced to accrue because of the bankruptcy court’s failure to file a separate entry of judgment. Reid’s argument is well taken. Bankruptcy Rule 9021 requires that a judgment becomes effective to activate the accrual of appeal time only when a separate entry of judgment is recorded in the docket pursuant to Bankruptcy Rule 5003. A bankruptcy court is required to set forth on a separate document every judgment which is entered in an adversary proceeding or contested matter, and the court’s clerk is to enter that separate document of the bankruptcy case. In re Ozark Restaurant Equipment Co., Inc., 761 F.2d 481 (8th Cir.1985); Stepflug v. Federal Land Bank, 790 F.2d 47 (7th Cir.1986). The separate document rule'of Bankruptcy Rule 9021 is identical to that of Fed.R.Civ.P. 58. In re Seiscom Delta, Inc. (Seiscom Delta, Inc. v. Two Westlake Park), 857 F.2d 279, 285 (5th Cir.1988); In re Kilgus (Reichman v. United States Fire Insurance Co.), 811 F.2d 1112, 1117 (7th Cir.1987) (Bankruptcy Rule 9021 is applied in the same manner as Rule" }, { "docid": "22565766", "title": "", "text": "on the 30th day after a judgment was deemed entered, was therefore timely filed. In sum, we have repeatedly recognized that Rule 58 “should be interpreted to prevent loss of the right to appeal, not to facilitate loss,” and see no reason to depart from this principle in this case. Hammack v. Baroid Corp., 142 F.3d 266, 269 (5th Cir.1998) (quoting Bankers Trust Co. v. Mallis, 435 U.S, 381, 385, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978)); accord, Theriot, 951 F.2d at 88 (citing In re Seiscom Delta, Inc., 857 F.2d 279, 283 (5th Cir.1988)). II. The propriety of the district court’s order compelling arbitration of the Jones Act and U.S. general maritime law claims against OTSI Having determined that Freuden-sprung’s notice of appeal was timely, we now turn to Freudensprung’s assertion that the district court erred by compelling arbitration of his Jones Act and U.S. general maritime law claims against OTSI. We affirm. A. Standard of review We review a district court’s ruling on a motion to compel arbitration and to stay litigation de novo. Hadnot v. Bay, Ltd., 344 F.3d 474, 476 (5th Cir.2003) (citing Webb v. Investacorp, Inc. 89 F.3d 252, 257 (5th Cir.1996)); Complaint of Hornbeck Offshore (1984) Corp. v. Coastal Carriers Corp., 981 F.2d 752, 754 (5th Cir.1993). A district court’s interpretation of the scope of an arbitration agreement is also subject to this Court’s plenary review. See Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1065 (5th Cir.1998). B. Scope and enforceability of the arbitration agreement Freudensprung primarily contends that he is exempt from arbitrating his Jones Act and maritime law claims because his Consultant’s Agreement with OTSI constitutes a seaman’s employment contract and, as such, is expressly excluded from coverage under the Federal Arbitration Act (“FAA” or “Arbitration Act”) by virtue of Section 1 of that statute. OTSI counters that this statutory exemption does not apply to Freudensprung, arguing that Freudensprung is not a seaman for the purposes of the Jones Act or the FAA, that he is an independent contractor, and that, consequently, the parties’ agreement is not" }, { "docid": "23037986", "title": "", "text": "appellate review is the failure of the District Court to set forth its judgment on a separate document, “there would appear to be no point in obliging the appellant to undergo the formality of obtaining a formal judgment. [I]t must be remembered that the rule is designed to simplify and make certain the matter of appealability. It is not designed as a trap for the inexperienced_ The rule should be interpreted to prevent loss of the right to appeal, not to facilitate loss.” Mallis, 435 U.S. at 386, 98 S.Ct. at 1120-1121 (citations and footnote omitted) (emphasis added). The Supreme Court anchored its decision on three factors. First, the “District Court clearly evidenced its intent that the opinion ... represented] the final decision in the case.” Id. at 387, 98 S.Ct. at 1121. Second, the judgment of dismissal was properly recorded on the clerk’s docket. And, finally, the appellee from the district court had not objected to perfecting the appeal from that order. Id. at 387, 98 S.Ct. at 1121. Accordingly, the Supreme Court fashioned a narrow modification of the In-drelunas doctrine. Where the failure of the district court to comply with the separate document principle of Rules 58 and 79(a) did not jeopardize the appellant’s appeal, the Court concluded that the error could be considered waived. However, the Court reaffirmed the doctrine that under the circumstances where the failure to comply with the separate document rule has created confusion which sabotages appellate jurisdiction, the separate document requirement should continue to be mechani cally applied. Id. at 387, 98 S.Ct. at 1121. See also Parisie v. Greer, 705 F.2d 882, 891 (7th Cir.) (en banc) (Eschbach, J.) (“Mallis reaffirmed the holding in Indrelu-nas that ‘the separate document rule must be “mechanically applied” in determining whether an appeal is timely.’ ”) (quoting Mallis, 435 U.S. at 386, 98 S.Ct. at 1120) (emphasis in original), cert. denied, 464 U.S. 950 [104 S.Ct. 366, 78 L.Ed.2d 326] (1983); In re Seiscom Delta, Inc. (Seiscom Delta, Inc. v. Two Westlake Park), 857 F.2d 279, 282 (5th Cir.1988) (“[T]he Court [in Mallis ] drew a" }, { "docid": "9894235", "title": "", "text": "refused to certify its December 6, 1988 order. On June 5, 1989 the court dismissed the intervention of the F.D.I.C. The court dismissed the claims against Charter Oaks and Deloof on August 24, 1989 and a final judgment was entered on August 25, 1989. Since this judgment disposed of all claims, the stay was lifted. Before we may reach the merits of the district court’s disposition of the appellants’ claims, we must first deal with the jurisdictional issues raised by this appeal. Appellate Jurisdiction The plaintiffs filed a notice of appeal before any final judgment was rendered. A final judgment was rendered, however, when the case was under appeal. We have long taken a practical view of what constitutes a final judgment in such circumstances. In Jetco Electronics Inds. v. Gardiner, 473 F.2d 1228 (5th Cir.1973), for example, the district court dismissed a claim, the claim was not certified under Rule 54(b), an appeal was taken, and the last remaining claims were dismissed. We noted that an order was final if it adjudicates the rights of all the parties or if the district court directs entry of judgment on some of the claims after determining that there is no just reason for delay. In Jeteo the claim which was appealed neither terminated the litigation nor was it properly certified under F.R.C.P. 54(b). We reasoned that once the district court dismissed the remaining claims it would be useless to remand the case. No certification is needed if the litigation is effectively terminated. See also Alcom Electronic Exchange, Inc. v. Burgess, 849 F.2d 964, 966-69 (5th Cir.1988); Alcorn County Miss v. U.S. Interstate Supplies, 731 F.2d 1160, 1165-66 (5th Cir.1984); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980); 10 C. Wright, A. Miller, M. Kane Federal Practice and Procedure § 2656 n. 30 (2d ed. 1983); and 6 J. Moore, W. Taggart, and J. Wicker Moore’s Federal Practice 54.28[2] n. 35 (2d ed. 1988). Although the instant appeal satisfies the dictates of 28 U.S.C. § 1291, there are four problems with the notice of appeal. First, the notice is premature. F.R." }, { "docid": "1018012", "title": "", "text": "that every judgment be set forth on a separate document). Under 28 U.S.C. § 1291, “The courts of appeals ... have jurisdiction of appeals from all final decisions of the district courts of the United States.” Without the presence of a certificate under Federal Rule 54(b), the final decision rule ordinarily operates to permit an appeal only from a judgment that finally determines all claims as to all parties. Tower v. Moss, 625 F.2d 1161, 1164 (5th Cir.1980). See generally 10 C. Wright & A. Miller, Federal Practice and Procedure §§ 2653-2661 (1983). In Bankers Trust Co. v. Mollis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam), the Supreme Court determined that the failure to comport with all procedural rules governing entry of judgments did not necessarily render a court of appeals without jurisdiction. The district court in that case issued a combined opinion and order dismissing the complaint, but failed to issue a separate document entering a final judgment as required by Federal Rule 58. The Supreme Court assumed without deciding that the requirements for an effective judgment set forth in the Federal Rules must be satisfied before an appeal could be brought under section 1291, equating section 1291’s requirement of a “final decision,” with a “judgment” under the Federal Rules. 98 S.Ct. at 1119 & n. 4. The Court concluded, however, that the sole purpose of Rule 58’s separate document requirement was to clarify when the time for an appeal begins to run. Id. at 1120; see 28 U.S.C. § 2107; Fed.R.App.P. 4(a). This purpose would not be furthered by a holding that appellate jurisdiction does not exist without a separate document entering judgment. 98 S.Ct. at 1120. Furthermore, the appellee never objected to the appeal; thus, the Court deemed that the parties had waived Rule 58’s requirement. Id. at 1121. The Bankers Trust decision has been used on several occasions to sustain jurisdiction when there was no separate document entering judgment, provided that the district court clearly evidenced that it had entered its final decision. See, e.g., Diaz v. Schwerman Trucking Co., 709" }, { "docid": "20690289", "title": "", "text": "this case, the notice of appeal was filed before a final judgment was either announced or entered, and there could be no reason to think the notice would do service for an appeal from the final judgment. 795 F.2d at 38. This panel might follow the reasoning set forth in Hansen, if we were not bound by a prior panel decision which expressly adopted the position set forth in Cape May Greene. See Alcorn County, Miss. v. U.S. Interstate Supplies, 731 F.2d 1160, 1165-66 (5th Cir.1984). This court in Alcorn primarily relied on an earlier panel decision, Jetco Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228 (5th Cir.1973), which held that we had jurisdiction to consider a premature appeal, and declined to follow a later contrary panel decision, United States v. Taylor, 632 F.2d 530 (5th Cir.1980), which, relying on Fed.R.App.P. 4(a), held that a final judgment does not retroactively validate a premature notice of appeal. In Alcorn, we noted that the Jeteo rule had been followed in this circuit, see Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 255 (5th Cir.1985); Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 n. 7 (5th Cir.1980); Tower v. Moss, 625 F.2d 1161, 1163-65 (5th Cir.1980), and, reasoning that where precedents conflict the older rule is presumptively correct, we rejected the contrary rule set forth in Tay lor. Alcorn, 731 F.2d at 1166 (\"The preference for the older authority is clearly appropriate here, where Jeteo has been acknowledged repeatedly as the law of this circuit.”). We then expressly adopted the position set forth in Cape May Greene, stating that “[w]e join the Third Circuit in holding that a premature notice of appeal does invoke appellate jurisdiction except in the narrow circumstances described in Rule 4(a)(4).” Alcorn, 731 F.2d at 1166. There are difficulties with our reliance upon Jeteo. While Jeteo was decided in 1973, Rule 4(a)(2), Fed.R.App.P., was enacted in 1979. It is the 1979 rule that governs and presents the problem. Looking at the terms of that rule, it provides for the postponement of a premature notice’s effective date only" }, { "docid": "2291582", "title": "", "text": "“categorical imperative.” See Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 98 S.Ct. 1117, 1120, 55 L.Ed.2d 357 (1978) (per curiam). Rule 58, as amended in 1963, clarifies that “a party need not file a notice of appeal until a separate judgment has been filed and entered.” Id. at 385, 98 S.Ct. at 1120 (citing United States v. Indrelunas, 411 U.S. 216, 220-22, 93 S.Ct. 1562, 1564, 36 L.Ed.2d 202 (1973)). The Rule thus shelters the right to appeal. But [i]f, by error, a separate judgment is not filed before a party appeals, nothing but delay would flow from requiring the court of appeals to dismiss the appeal. Upon dismissal, the district court would simply file and enter the separate judgment, from which a timely appeal would then be taken. Wheels would spin for no practical purpose. Id. (footnote omitted). Rule 58, we agree, “must be applied in such a way as to favor the right to appeal.” Matter of Seiscom Delta, Inc., 857 F.2d 279, 283 (5th Cir.1988). Thus, “[i]f an appellant files his notice of appeal from a final judgment within the prescribed time after the entry of the judgment as a separate document, his appeal cannot be defeated by the argument that his time to appeal began to run from the entry of some earlier decision, opinion, or order.” Id. at 284 (quoting Hanson v. Town of Flower Mound, 679 F.2d 497, 502 (5th Cir. 1982)). Harmoniously, where the separate-document requirement has been overlooked by the district court, so long as “it is clear that the district court has intended a final, appealable judgment, mechanical application of the separate-judgment rule should not be used to require the pointless formality of returning to the district court for ministerial entry of judgment; instead, the right to immediate appeal is favored.” Id. at 283. In sum, the district court, in October 1988, took what was plainly meant to be its ultimately dispositive adjudicatory action, constituting its final decision in the case. That decision, we hold, qualifies as “final” for purposes of appellate review pursuant to 28 U.S.C. § 1291" }, { "docid": "9894236", "title": "", "text": "of all the parties or if the district court directs entry of judgment on some of the claims after determining that there is no just reason for delay. In Jeteo the claim which was appealed neither terminated the litigation nor was it properly certified under F.R.C.P. 54(b). We reasoned that once the district court dismissed the remaining claims it would be useless to remand the case. No certification is needed if the litigation is effectively terminated. See also Alcom Electronic Exchange, Inc. v. Burgess, 849 F.2d 964, 966-69 (5th Cir.1988); Alcorn County Miss v. U.S. Interstate Supplies, 731 F.2d 1160, 1165-66 (5th Cir.1984); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980); 10 C. Wright, A. Miller, M. Kane Federal Practice and Procedure § 2656 n. 30 (2d ed. 1983); and 6 J. Moore, W. Taggart, and J. Wicker Moore’s Federal Practice 54.28[2] n. 35 (2d ed. 1988). Although the instant appeal satisfies the dictates of 28 U.S.C. § 1291, there are four problems with the notice of appeal. First, the notice is premature. F.R. A.P. 4(a)(2) states “a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry.” We have not construed 4(a)(2) strictly and have held that a notice of appeal filed before a judgment is announced and entered is valid. See e.g., Alcom, 849 F.2d at 966-69 and Alcorn, 731 F.2d at 1165-66. But see United States v. Hansen, 795 F.2d 35, 37-38 (7th Cir.1986) (holding that F.R.A.P. 4(a)(2) saves a premature notice of appeal only if it is filed after a final judgment is announced but before it is entered). Second, the notice does not specify the parties taking the appeal. The failure to properly designate the appellants is usually fatal. See, e.g., Torres v. Oakland Scavenger, 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). This defect may be cured, however, by filing a supporting memorandum or some other paper which contains the names of each appellant. See Brotherhood of Railway Carmen v. Atchison, Topeka" }, { "docid": "23037987", "title": "", "text": "a narrow modification of the In-drelunas doctrine. Where the failure of the district court to comply with the separate document principle of Rules 58 and 79(a) did not jeopardize the appellant’s appeal, the Court concluded that the error could be considered waived. However, the Court reaffirmed the doctrine that under the circumstances where the failure to comply with the separate document rule has created confusion which sabotages appellate jurisdiction, the separate document requirement should continue to be mechani cally applied. Id. at 387, 98 S.Ct. at 1121. See also Parisie v. Greer, 705 F.2d 882, 891 (7th Cir.) (en banc) (Eschbach, J.) (“Mallis reaffirmed the holding in Indrelu-nas that ‘the separate document rule must be “mechanically applied” in determining whether an appeal is timely.’ ”) (quoting Mallis, 435 U.S. at 386, 98 S.Ct. at 1120) (emphasis in original), cert. denied, 464 U.S. 950 [104 S.Ct. 366, 78 L.Ed.2d 326] (1983); In re Seiscom Delta, Inc. (Seiscom Delta, Inc. v. Two Westlake Park), 857 F.2d 279, 282 (5th Cir.1988) (“[T]he Court [in Mallis ] drew a careful distinction between (i) the court of appeals’ jurisdiction to entertain an appeal where the parties obviously waived the separate-document requirement by considering the judgment final, and (ii) cutting off a party’s right to appeal where the party has not waived the separate-document requirement.”) (emphasis in original); In re Ozark Restaurant Equipment Co., Inc., 761 F.2d 481 (8th Cir.1985) (same); Amoco Oil Co. v. Jim Heilig Oil & Gas, Inc., 479 U.S. 966, 107 S.Ct. 468, 93 L.Ed.2d 413 (1986) (Blaekmun, J., dissenting from denial of certiorari) (“[T]he separate-document requirement must be applied mechanically in order to protect a party’s right of appeal, although parties may waive this requirement in order to maintain appellate jurisdiction.”) (emphasis in original); accord Beukema’s Petroleum Co. v. Admiral Petroleum Co., 613 F.2d 626 (6th Cir.1979). Applying the Supreme Court’s mandate in Indrelunas and Mallis to the case at bar, the district court’s June 30, 1986 order could not operate as the final order from which an appeal was required to be taken. In contrast to Mallis, the clerk of" }, { "docid": "2291581", "title": "", "text": "Amendment to Rule 58: Hitherto some difficulty has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words, e.g., “the plaintiff’s motion [for summary judgment] is granted[.]” ... Clerks on occasion have viewed these opinions or memoranda as being in themselves a sufficient basis for entering judgment in the civil docket as provided by Rule 79(a). However, where the opinion or memorandum has not contained all the elements of a judgment or where the judge has later signed a formal judgment, it has become a matter of doubt whether the purported entry of judgment was effective, starting the time running ... for the purpose of appeal.... The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document — distinct from any opinion or memorandum — which provides the basis for the entry of judgment. That judgments shall be on separate documents is also indicated in Rule 79(b); .... The separate-document requirement, although a salutary main rule, is not a “categorical imperative.” See Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 98 S.Ct. 1117, 1120, 55 L.Ed.2d 357 (1978) (per curiam). Rule 58, as amended in 1963, clarifies that “a party need not file a notice of appeal until a separate judgment has been filed and entered.” Id. at 385, 98 S.Ct. at 1120 (citing United States v. Indrelunas, 411 U.S. 216, 220-22, 93 S.Ct. 1562, 1564, 36 L.Ed.2d 202 (1973)). The Rule thus shelters the right to appeal. But [i]f, by error, a separate judgment is not filed before a party appeals, nothing but delay would flow from requiring the court of appeals to dismiss the appeal. Upon dismissal, the district court would simply file and enter the separate judgment, from which a timely appeal would then be taken. Wheels would spin for no practical purpose. Id. (footnote omitted). Rule 58, we agree, “must be applied in such a way as to favor the right to appeal.” Matter of Seiscom Delta, Inc., 857 F.2d 279, 283 (5th Cir.1988). Thus, “[i]f an appellant files" }, { "docid": "5496434", "title": "", "text": "an intent on the part of either defendant, and Simmons’s speculative allegations that Willcox had something to gain by terminating her employment are insufficient to create a genuine issue of material fact precluding summary judgment. See id. at 771. AFFIRMED. . In addition to Willcox, ALAD, and MONY, Simmons named as defendants two of ALAD’s affiliated entities, the American Lung Association (\"ALA”) and the American Lung Association of Texas (\"ALAT”), and Corporate Benefit Systems, Inc. (\"CBS”), the company that took over the administration of ALAD’s employee benefit plan from MONY after Simmons’s termination. . We previously asked the parties to address the issue of appellate jurisdiction in their briefs, and they have done so. . Presumably, Simmons did so in order to avoid dismissal of her appeal in the event that we found the first notice of appeal to be ineffective. . The plaintiff did not seek a rule 54(b) certification from the district court. . The Jeteo rule has been cited and followed in numerous subsequent decisions of this court. E.g., Levron v. Gulf Int’l Marine, Inc., 854 F.2d 777, 779-80 (5th Cir.1988) (per curiam); Alcorn Elec. Exchange, Inc. v. Burgess, 849 F.2d 964, 966-69 (5th Cir.1988) (criticizing, but continuing to follow, the Jeteo rule); Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 255 (5th Cir.1985); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980). See also Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982) (recognizing Jeteo as the rule of the former Fifth Circuit and thus binding on the Eleventh Circuit). .Although the parties have not called our attention to it in their briefs, we note that the judgment in this case is not contained in a \"separate document” as required by Fed.R.Civ.P. 58. However, we consistently have recognized that the separate document requirement is not jurisdictional and that parties are free to waive it. See Seiscom Delta Inc. v. Two Westlake Park (In re Seiscom Delta, Inc.), 857 F.2d 279, 282 (5th Cir.1988) (citing Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 98 S.Ct. 1117, 1120, 55 L.Ed.2d 357 (1978) (per curiam)). Here, neither" }, { "docid": "23182069", "title": "", "text": "merits and leaves the court with nothing to do except execute the judgment.” Zink v. United States, 929 F.2d 1015, 1020 (5th Cir.1991). However, a judgment is not final until both liability and damages are determined. Deloach v. Delchamps, 897 F.2d 815 (5th Cir.1990). “Although there is no statute or rule that specifies the essential elements of a final judgment and the Supreme Court has held that no form of words and no peculiar formal act is necessary to evince the rendition of a judgment, a final judgment for money must, at least, determine, or specify the means for determining, the amount of the judgment.” Zink, 929 F.2d at 1020 (internal citations omitted). “This Court has held previously that a ruling which grants a motion for summary judgment by itself is not an appealable order.” Calmaquip Eng’g West Hemisphere Corp. v. West Coast Carriers, Ltd., 650 F.2d 633, 635 (5th Cir.1981). In the district court’s second order of November 17,1998, the district court does not make a finding of liability, nor does it award damages. It merely reiterates the rulings from its first order of November 17 and orders the parties to submit briefs on the issue of attorney’s fees. Because neither of the November 17, 1993, orders made a finding of liability or specified the amount of judgment, they were not final. Zink, 929 F.2d at 1020. Furthermore, we note that the Rule 58 separate document requirement “should be read, where reasonably possible, to protect the right to appeal.” Seiscom Delta, Inc. v. Two Westlake Park, 857 F.2d 279, 282 (5th Cir.1988). “It must be remembered that the rule is designed to simplify and make certain the matter of appealability. It is, not designed as a trap for the inexperienced .... The rule should be interpreted to prevent loss of the right of appeal, not to facilitate loss.” Seiscom Delta, Inc., 857 F.2d at 283, citing Bankers Trust Co. v. Mollis, 435 U.S. 381, 386, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (1978) (internal citations omitted). For the foregoing reasons, the August 19, 1994, order was the final judgment" }, { "docid": "12304449", "title": "", "text": "54(b) certificate permitting the appeal. After the notice of appeal was filed, however, the district court dismissed Bache’s counterclaim at Bache’s request. This dismissal cured the defect caused by the district court’s failure to issue a Rule 54(b) certificate. In Campbell, supra, the court, faced with the same problem, stated that “there is an exception to the requirements of Rule 54(b) that allows the separate appeal of a nonfinal judgment where a subsequent judgment of the district court effectively terminates the litigation.” Id. at 114. See also Jeteo Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973). Accordingly, Rule 54(b) is not a bar to appellate review in this instance. The other jurisdictional issue involves Fed.R.Civ.P. 58 which provides that a final judgment must be “set forth on a separate document.” There is authority in this circuit that an order granting summary judgment is not by itself an appealable order. Calmaquip Eng. West Hemisphere v. West Coast Carriers, 650 F.2d 633, 635-636 (5th Cir. Unit B 1981). In this case, the district court did not enter a final judgment separate from the order granting summary judgment. Bache, however, has never objected to the taking of the appeal without the entry of a separate final judgment and consequently has waived the Rule 58 requirement. Bankers Trust Co. v. Mallis, 435 U.S. 381, 387-388, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (1978). See also Stein v. Reynolds Securities, Inc., 667 F.2d 33, Fn. 1 (11th Cir.1982) (parties can waive Rule 58 requirement of separate document). Because Bache waived this omission, there is appellate jurisdiction over this controversy. The district court granted Bache’s motion for summary judgment because it believed that the release signed by the Finns barred their claims as a matter of law. This release contained the following language: In consideration of the foregoing the undersigned release and forever discharge PBS ... its present and prior officers, directors and employees from any and all claims or causes of action, that have arisen or may arise in law or in equity in connection with any and all investments. Record Excerpts" }, { "docid": "21590687", "title": "", "text": "in In re Air Crash at Dallas/Fort Worth Airport on August 2, 1985, 852 F.2d 842 (5th Cir.1988)). See Houston v. Lack, — U.S. -, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245 (1988). Since the summary judgment entered in favor of American became final and appealable on March 28, Levron then had 30 days in which to file notice of appeal from that judgment or forfeit the right to appeal. The logic of Jeteo has been followed faithfully in this circuit. “[W]e have consistently held that there is an exception to the requirements of Rule 54(b) that allows the separate appeal of a nonfinal judgment where a subsequent judgment of the district court effectively terminates the litigation” (citing several cases). Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 255 (5th Cir.1985). Accord, Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 n. 7 (5th Cir.1980); Tower v. Moss, 625 F.2d 1161, 1165 (5th Cir.1980). See Davidson Oil Country Supply Co. v. Klockner, Inc., 780 F.2d 1258, 1260 (5th Cir.1986). The appellant failed to file notice of appeal within 30 days after the order from which he seeks to appeal became final and appealable. Consequently, we are without jurisdiction, and the appeal is DISMISSED. . Apparently, Levron’s counsel discovered, more than thirty days after March 28, that such was the case. He pursued his only remaining avenue of redress, a motion under Fed.R.App.P. 4(a)(5) to extend the time for filing notice of appeal. The district court denied that motion, a ruling that is reversible only for abuse of discretion. Chipser v. Kohltneyer & Co., 600 F.2d 1061, 1063 (5th Cir.1979) (“excusable neglect” standard of the rule is intended to be a strict one; \"mere palpable mistake by experienced counsel” is not excusable neglect). In his opposition to American's motion to dismiss the appeal, Levron does not question the district court’s denial of the extension or ask us to overturn it." }, { "docid": "5496435", "title": "", "text": "Int’l Marine, Inc., 854 F.2d 777, 779-80 (5th Cir.1988) (per curiam); Alcorn Elec. Exchange, Inc. v. Burgess, 849 F.2d 964, 966-69 (5th Cir.1988) (criticizing, but continuing to follow, the Jeteo rule); Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 255 (5th Cir.1985); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980). See also Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982) (recognizing Jeteo as the rule of the former Fifth Circuit and thus binding on the Eleventh Circuit). .Although the parties have not called our attention to it in their briefs, we note that the judgment in this case is not contained in a \"separate document” as required by Fed.R.Civ.P. 58. However, we consistently have recognized that the separate document requirement is not jurisdictional and that parties are free to waive it. See Seiscom Delta Inc. v. Two Westlake Park (In re Seiscom Delta, Inc.), 857 F.2d 279, 282 (5th Cir.1988) (citing Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 98 S.Ct. 1117, 1120, 55 L.Ed.2d 357 (1978) (per curiam)). Here, neither of the parties has insisted upon a separate document or objected to the lack thereof; accordingly, the separate document rule is not a barrier to our consideration of this appeal. . See also Denton v. First Nat’l Bank, 765 F.2d 1295, 1303 (5th Cir.1985) (plaintiff must exhaust administrative remedies before filing lawsuit to collect ERISA benefits); Makar v. Health Care Corp., 872 F.2d 80, 82-83 (4th Cir.1989) (same); Kross v. Western Elec. Co., 701 F.2d 1238, 1245 (7th Cir.1983) (same); Amato v. Bernard, 618 F.2d 559, 567-68 (9th Cir.1980) (same). . On appeal, Simmons maintains that the fact that Zellmer provided her with inconsistent figures somehow prevented her from filing an application for benefits. However, Simmons admitted at her deposition that she would not have filed an application even if Zellmer had given her consistent figures. . The foregoing analysis applies to Simmons’s statutory claims for breach of fiduciary duty under ERISA. To the extent that Simmons’s fiduciary duty claims are premised upon state law, they are, of course, preempted by ERISA. See 29 U.S.C." }, { "docid": "23037993", "title": "", "text": "had not commenced to accrue because of the bankruptcy court’s failure to file a separate entry of judgment. Reid’s argument is well taken. Bankruptcy Rule 9021 requires that a judgment becomes effective to activate the accrual of appeal time only when a separate entry of judgment is recorded in the docket pursuant to Bankruptcy Rule 5003. A bankruptcy court is required to set forth on a separate document every judgment which is entered in an adversary proceeding or contested matter, and the court’s clerk is to enter that separate document of the bankruptcy case. In re Ozark Restaurant Equipment Co., Inc., 761 F.2d 481 (8th Cir.1985); Stepflug v. Federal Land Bank, 790 F.2d 47 (7th Cir.1986). The separate document rule'of Bankruptcy Rule 9021 is identical to that of Fed.R.Civ.P. 58. In re Seiscom Delta, Inc. (Seiscom Delta, Inc. v. Two Westlake Park), 857 F.2d 279, 285 (5th Cir.1988); In re Kilgus (Reichman v. United States Fire Insurance Co.), 811 F.2d 1112, 1117 (7th Cir.1987) (Bankruptcy Rule 9021 is applied in the same manner as Rule 58). See generally 9 L. King, Collier on Bankruptcy, fl 9021.03-.04 at 9021-3 (15th ed.1987). In the case at bar, since a separate document entering judgment had never been filed by the bankruptcy court even to date, it is patently clear that Rule 9021 was not initially satisfied. Consequently, the district court erred in dismissing Reid’s appeal as untimely. Although the bankruptcy court had failed to comply with Rule 9021, the oversight does not divest this court of its jurisdiction to entertain Reid’s instant appeal. The pronouncements of Mallis recognize that prevailing circumstances in a given case could result in the waiver of the Rule 58 mandate. “If, by error, a separate judgment is not filed before a party appeals, nothing but delay would flow from requiring the court of appeals to dismiss the appeal. Upon dismissal, the district court would simply file and enter the separate judgment, from which a timely appeal would then be taken. Wheels would spin for no practical purpose.” Mallis, 435 U.S. at 385, 98 S.Ct. at 1120 (footnote omitted);" } ]

[ { "docid": "9583285", "title": "", "text": "sole issue on appeal is whether the evidence is sufficient to support the examiner’s finding that Harvard had not earned $50 a quarter in 20 of the 40 quarters up to and including the quarter in which his accident occurred. Section 205(e) (4) (B) of the Act provides that after the expiration of three years, three months, and fifteen days, the Secretary’s records of an individual’s wages shall be “presumptive evidence” of the amount of wages he received. In this case, the statutory limit has expired and the records of the Social Security Administration show that Harvard earned the required amount in only 16 quarters. O’Brien contends, however, that while the records of the Secretary are presumptively correct, they may be rebutted by contrary evidence, and that Harvard presented such evidence at the examiner’s hearing. His position is that the records fail to reflect substantial cash payments Harvard received from his employer, and these payments make him eligible under the Act. To be sure, Harvard did testify to such cash payments, and two fellow employees testified that he had worked regularly at Miami Waste Paper from 1949 to 1957. Such evidence tends to rebut the statutory presumption against him. There is also, however, evidence pointing in the opposite direction. Records of the company’s checking account indicate the same payments to Harvard as those reflected in the Secretary’s records. Martin Goldberg, who handled the payroll, testified that all payments were by cash. He also testified that Harvard had not worked steadily. Harvard’s co-workers testified that he was always paid by check. Finally, Harvard paid no income tax on the unrecorded amounts his executor now contends that he received between 1949 and 1957. The record, in short, contains contradictions ; it was the task of the hearing examiner to resolve them. See Cele-brezze v. Maxwell, 5 Cir. 1963, 315 F.2d 727, 730. The function of the district court was only to determine whether the decision was supported by “substantial evidence”. 42 U.S.C. § 405(g). We agree with the district court. The judgment is affirmed. . 42 U.S.C. §§ 413(a) (2), 423(c) (1)" } ]

[ { "docid": "23525345", "title": "", "text": "COLEMAN, Circuit Judge: This action was brought by the claimant, Ollie Alsobrooks, against the Secretary of Health, Education, and Welfare, pursuant to section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), to obtain judicial review of a final decision of the Secretary denying his application for disability insurance benefits under Title II of the Social Security Act as amended. On April 8, 1965, the District Court affirmed the Secretary’s decision, and the claimant appeals. The courts cannot and do not try these Social Security cases de novo. Our role is limited to a consideration of whether the decision of the Secretary is supported by substantial evidence. Ward v. Celebrezze, 5 Cir., 1962, 311 F.2d 115; Clinch v. Celebrezze, 5 Cir., 1964, 328 F.2d 778; Aldridge v. Celebrezze, 5 Cir., 1964, 339 F.2d 190. If it is, it must be upheld. At the same time, courts cannot escape the duty of scrutinizing the record as a whole to determine whether the substantial evidence standard has been met. To establish a disability under the Act a claimant must show that he is unable to do his former work and is unable to perform any substantial, gainful work, including work of a lighter type. Hicks v. Flemming, 5 Cir., 1962, 302 F.2d 470, and Celebrezze v. O'Brient, 5 Cir., 1963, 323 F.2d 989. All the circumstances of each case must be considered in making the determination whether an applicant is able to work. In determining capacity to work, the age, training, work experience, physical faculties, and mental faculties of the claimant must be considered. Two issues must be decided — what can appellant do, and what employment opportunities are there for a man in his condition ? Mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available. Kerner v. Flemming, 2 Cir., 1960, 283 F.2d 916; Hicks v. Flemming, 5 Cir., 1962, 302 F.2d 470. We cannot order unemployment compensation under the guise of disability insurance. Hicks v. Flemming, supra. The ability of the claimant to engage in substantial and gainful" }, { "docid": "22978831", "title": "", "text": "burden shifts to the Secretary to show that the plaintiff can perform some other type of substantial gainful activity. Davis v. Califano, supra, 605 F.2d at 1071. The decision of the Secretary must be affirmed if supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In the instant case there was conflicting evidence between Weber’s treating physician, Dr. Mitchell Mirbaha, and the consulting examiner for the Social Security Administration, Dr. Marshall B. Conrad. The two physicians examined Weber approximately one week apart. The other major medical evidence since Weber’s first award was the record of her hospitalization in November 1977, for removal of a tumor on her nose. The ALJ also incorporated the evidence of the first hearing into his decision. He considered all of the evidence, including Weber’s testimony of subjective pain. Weber testified the pain was worse than when she was first found to be disabled, and Dr. Mirbaha stated he thought she was qualified for Social Security benefits. However, the ALJ in evaluating the medical evidence credited Dr. Conrad’s conclusions and found that Dr. Mirbaha’s conclusion was not documented by his own clinical findings. The ALJ gave less weight to much of Weber’s testimony with regard to subjective pain because of the fact that during the three-year period from 1975 to 1978, she visited her treating physician only once, and took no medication except aspirin and occasionally Darvon. The ALJ credited Dr. Conrad’s conclusion that the lower back pain was chronic postural strain caused by her obesity, which is a remedial condition which cannot be the basis for a finding of disability. See Stillwell v. Cohen, 411 F.2d 574, 575-76 (5th Cir. 1969); 20 C.F.R. § 404.1518. The ALJ found that “[t]he medical evidence shows that beginning in February 1978, the claimant’s impairments improved, and the claimant had the ability to engage in substantial gainful activity.” The medical evidence in this case is conflicting. Although we might not reach the same conclusion as that made by the ALJ in" }, { "docid": "1673006", "title": "", "text": "date of this decision. It is the finding and decision of the undersigned Administrative Law Judge that the claimant, based on his applications filed on March 5, 1979, is not entitled to a period of disability or to disability insurance benefits under the provisions of sections 216(i) and 223 of the Social Security Act, as amended, nor is he eligible for supplemental security income under the provisions of section 1614(a)(3) of the Social Security Act, as amended. S/ Irwin I. Blumberg Irwin I. Blumberg Administrative Law Judge Date: February 11, 1980 ISSUES RAISED The claimant argues that the ALJ’s decision to deny disability benefits is not supported by substantial evidence. The claimant alleges that he has met his burden of proof by creating a prima facie case of disability and that the ALJ failed to shift the burden of proof on the issue of “alternate employability” to the Secretary. The claimant also contends that the ALJ failed to give sufficient weight to the treating physician’s evaluation of disability, disregarded the plaintiff’s testimony of subjective pain and disability, and failed to call a vocational expert on the issue of alternative employability. SUBSTANTIAL EVIDENCE The scope of review in a disability case is a very narrow one. The court must examine the record to determine whether the AU’s decision is supported by substantial evidence and whether the AU applied the proper legal standards in reaching his decision. 42 U.S.C. § 405(g). Bartell v. Cohen, 445 F.2d 80, 82 (7th Cir. 1971). The court’s task is not to resolve conflicts in the evidence, nor is it to decide questions of credibility. The AU’s factual determinations must be upheld if they are supported by substantial evidence based on the record as a whole. See Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974). The substantial evidence test means that the AU’s factual findings must be upheld if they are supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusions. Schmoll v. Harris, 636 F.2d 1146 (7th Cir. 1980); McNeil v. Califano, 614 F.2d 142, 145 (7th Cir." }, { "docid": "22352974", "title": "", "text": "the Secretary employed the proper legal standards in reaching her conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Substantial evidence is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). The scope of our review is limited to an examination of the record only. We do not review the evidence de novo, make credibility determinations nor weigh the evidence. Reynolds v. Secretary of Health and Human Services, 707 F.2d 927 (6th Cir.1983). Finally, where a party presents new evidence on appeal, this court can remand for further consideration of the evidence only where the party seeking remand shows that the new evidence is material and that there was good cause for not presenting the evidence in a prior proceeding. 42 U.S.C. § 405(g) (1982); Oliver v. Secretary of HHS, 804 F.2d 964, 966 (6th Cir.1986). Brainard’s first argument is the SSA records do not adequately reflect her quarters of coverage and that her oral testimony should be viewed as “satisfactory” and substantial evidence. With respect to this claim, 20 C.F.R. § 404.803(a) (1988) provides that, in general, “SSA records are evidence of the amounts of ... earnings and the periods in which they were received.” If a claimant challenges the SSA records within 3 years, 3 months and 15 days (the “time limit”) after any year where there are reported earnings, the SSA records are not conclusive and the SSA is authorized to correct the earnings record. Id. at § 404.803(b). Since Brainard is challenging periods outside the time limit, the SSA \"records are conclusive evidence that no wages were paid” in the disputed periods. While 20 C.F.R. § 404.822 (1988) provides exceptions to this rule, Brainard has not submitted W-2 forms, tax returns, affidavits from her prior employers or any satisfactory documentary evidence to prove that the SSA records are incorrect. Moreover, even if Brainard’s" }, { "docid": "22399904", "title": "", "text": "BOREMAN, Senior Circuit Judge: The Secretary of Health, Education and Welfare appeals from a decision of the district court reversing the Secretary’s administrative denial of disability benefits to claimant, Rachel R. Blalock. Mrs. Blalock applied for a period of disability and disability benefits under Sections 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C.A. §§ 416(i), 423, alleging rheumatoid arthritis in her hands. Upon initial denial of her application, Mrs. Blalock requested and was granted a hearing at which she was represented by counsel. The decision of the hearing exarqiner was also adverse to claimant whereupon she filed additional evidence in the form of medical reports which were not before the examiner, in support of her request for reconsideration by the Appeals Council. The Council denied her request after consideration of the record and new evidence. Pursuant to Section 205(g) of the Act, as amended, 42 U.S.C.A. § 405(g), claimant sought judicial review in the United States District Court. It is from the decision of that court awarding her disability benefits that the Secretary appeals. Bearing in mind the limited nature of the court’s power of review we conclude that the judgment below cannot be upheld. Claimant had the burden of proving her disability to the satisfaction of the Secretary, under a two-fold test. First, there must be a medically determinable physical or mental impairment, and second, the impairment must be such as to render her unable to engage in substantial gainful employment. 42 U.S.C.A. § 423(d); 20 CFR §§ 404.-1501(b), 1532(b). Hayes v. Gardner, 376 F.2d 517, 520 (4 Cir. 1967); Laws v. Celebrezze, 368 F.2d 640, 643 (4 Cir. 1966). See, Brown v. Celebrezze, 367 F.2d 455, 456 (4 Cir. 1966); Cyrus v. Celebrezze, 341 F.2d 192, 194 (4 Cir. 1965); Thomas v. Celebrezze, 331 F.2d 541, 545 (4 Cir. 1964). She had the additional problem here of proving that her claimed disability existed prior to June 30, 1964, the date she last met the special earnings requirement. 42 U.S.C.A. § 423(c); 20 CFR Subpart B, §§ 404.101-120. Flack v. Cohen, 413 F.2d 278, 279" }, { "docid": "10507717", "title": "", "text": "JOHN R. BROWN, Chief Judge: This appeal tests the corectness of the administrative determination that claimant was not disabled on December 31, 1962, when his insured status under the disability provisions of the Social Security Act expired. In evaluating the application of June 9, 1970, the .Secretary of Health, Education and Welfare determined that through December 31, 1962 the plaintiff had no impairment or impairments of sufficient significance to have prevented substantial gainful activity for a continuous period of at least one year. In an action brought under § 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g) the United States District Court for the Western District of Louisiana entered summary judgment in favor of the Secretary. We reverse. The usual standard applied in these cases is that “. . . the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . .”. Richardson v. Perales, 1971, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842; Hart v. Finch, 5 Cir., 1971, 440 F.2d 1340. The review by the Court is not a trial de novo and the function of the Court is not to reweigh the evidence or to substitute its judgment for that of the Secretary. The role of the Court is solely to determine if there is substantial evidence to support the Secretary’s decision. Goodman v. Richardson, 5 Cir., 1971, 448 F.2d 388; Richardson v. Richardson, 5 Cir., 1970, 437 F.2d 109; Brown v. Finch, 5 Cir., 1970, 429 F.2d 80; Rome v. Finch, 5 Cir., 1969, 409 F.2d 1329. Resolution of conflicts in the evidence, including conflicting medical opinions and determinations of credibility are not for the courts; such functions are solely within the province of the Secretary. Grant v. Richardson, 5 Cir., 1971, 445 F.2d 656; Martin v. Finch, 5 Cir., 1969, 415 F.2d 793; Stillwell v. Cohen, 5 Cir., 1969, 411 F.2d 574; Hayes v. Celebrezze, 5 Cir., 1963, 311 F.2d 648; Page v. Celebrezze, 5 Cir., 1963, 311 F.2d 757. Our review of the record in this case, the whole record, leaves us unable" }, { "docid": "22166533", "title": "", "text": "SOBELOFF, Senior Circuit Judge: This action was brought in the District Court by the appellant, William B. Vitek, against the Secretary of Health, Education, and Welfare pursuant to § 205(g) of the Social Security Act, 42 U. S.C.A. § 405(g), to obtain judicial review of a final decision of the Secretary denying the appellant’s application for disability insurance benefits under §§ 216(i) and 223 of the Act, 42 U.S.C.A. §§ 416 (i) and 423. The District Court granted the Government’s motion for summary judgment, and this appeal followed. I The standard for judicial review in cases of this nature is prescribed in § 205(g) of the Act, 42 U.S.C.A. § 405(g), as follows: “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, * * *.” Accordingly, the traditional function of the courts in these cases is not to try them de novo, or resolve mere conflicts in the evidence. However, the courts must not abdicate their responsibility to give careful scrutiny to the whole record to assure that there is a sound foundation for the Secretary’s findings, and that his conclusion is rational. Bridges v. Gardner, 368 F.2d 86, 90 (5th Cir. 1966); Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964); see also Philley v. Cohen, 293 F.Supp. 1068, 1072 (N.D. Miss. 1968); Baker v. Celebrezze, 241 F.Supp. 971, 973 (E.D. S.C. 1965). Where the Secretary’s determination is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the Secretary’s decision “with or without remanding the cause for a rehearing.” 42 U.S. C.A. § 405(g); Thomas v. Celebrezze, supra; Branch v. Finch, 313 F.Supp. 337, 342 (D. Kan. 1970); Forbes v. Finch, 307 F.Supp. 1000, 1005 (E.D. Tenn. 1969); Hinson v. Celebrezze, 249 F.Supp. 232, 234 (D. S.C. 1966). II In October 1966 the claimant filed his present application for benefits, alleging that primarily because of a heart condition he was unable to engage in any substantial gainful employment. To establish his right to disability benefits, Vitek had the burden of" }, { "docid": "22978832", "title": "", "text": "for Social Security benefits. However, the ALJ in evaluating the medical evidence credited Dr. Conrad’s conclusions and found that Dr. Mirbaha’s conclusion was not documented by his own clinical findings. The ALJ gave less weight to much of Weber’s testimony with regard to subjective pain because of the fact that during the three-year period from 1975 to 1978, she visited her treating physician only once, and took no medication except aspirin and occasionally Darvon. The ALJ credited Dr. Conrad’s conclusion that the lower back pain was chronic postural strain caused by her obesity, which is a remedial condition which cannot be the basis for a finding of disability. See Stillwell v. Cohen, 411 F.2d 574, 575-76 (5th Cir. 1969); 20 C.F.R. § 404.1518. The ALJ found that “[t]he medical evidence shows that beginning in February 1978, the claimant’s impairments improved, and the claimant had the ability to engage in substantial gainful activity.” The medical evidence in this case is conflicting. Although we might not reach the same conclusion as that made by the ALJ in evaluating the evidence, we conclude his findings are supported by substantial evidence on the record as a whole, realizing “the substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” See Brand v. Secretary of HEW, 623 F.2d 523, 527 (8th Cir. 1980) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). It is for the Secretary to resolve conflicts and ambiguities in medical evidence, and here the ALJ properly considered all the evidence favorable and unfavorable to Weber. Weber relies heavily on Miranda v. Secretary of HEW, 514 F.2d 996 (1st Cir. 1975), for the proposition that when evidence of disability does not change, the Secretary shall be bound by its prior determination of disability. Miranda v. Secretary of HEW, supra, in fact supports the Secretary’s position in the instant case, however. That court stated: [O]nce having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence" }, { "docid": "23083078", "title": "", "text": "report of a physician employed and paid by the government solely for the purposes of defending against a disability claim. Certainly here the treating physicians expressed a definite opinion that appellant was disabled from gainful employment for over a year, and all of the lay testimony supported this conclusion. The lay and medical evidence supplied by appellant’s physicians, Drs. Shipley and Lowe, fully met the applicable statutory definition of disability: “ * * * inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 416(i) (1) (A) (Supp. V 1965-1969). Appellant had made a prima facie case. To overcome such a case with medical witness testimony alone, the medical expert must at least be prepared to commit his professional opinion as to whether or not appellant is capable of working and as to what he can do. Anything less is not in our view “substantial evidence.” In Miracle v. Celebrezze, 351 F.2d 361 (6th Cir. 1965), this court said: “When a claimant comes forth with evidence of serious physical impairment, the record must contain evidence on which the denial of the claim may be based; and where there is uncontroverted medical testimony that the applicant is unable to engage in any substantial gainful activity, it is the duty of the Secretary of Health, Education, and Welfare to award him the relief requested, assuming that all other qualifications are met. Davis v. Celebrezze, 213 F.Supp. 477 (D.C. Tex.); Williams v. Celebrezze, 228 F.Supp. 627 (D.C.Ky.); Jarvis v. Ribicoff, 312 F.2d 707 (C.A. 6).” Miracle v. Celebrezze, supra at 378. In Colwell v. Gardner, 386 F.2d 56 (6th Cir. 1967), this court said: “Where a Hearing Examiner has received expert opinions on the issue of a claimant’s ability to work and they are not repudiated in any respect by substantial evidence, an adverse decision should be set aside as based on suspicion and speculation.”" }, { "docid": "15173263", "title": "", "text": "GARZA, District Judge. Claimant, James O. Austin, brought this action under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Secretary of Health, Education and Welfare, denying his claim for a period of disability and for disability insurance benefits. Plaintiff applied for a period of disability on August 1, 1960, and for disability insurance benefits on December 20, 1960. The administrative procedure was followed through a reconsideration, a hearing, and a review by the Appeals Council, all denying Plaintiff’s claims. The Appeals Council rendered its decision on August 12, 1968, which became the final decision of the Secretary, and this action was instituted. The Court has before it motions for summary judgment by both parties. The function of the Trial Court is to review the record as a whole and determine if there is substantial evidence to support the Secretary’s findings. Section 405(g), Title 42 U.S.C., provides that “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * The decisions in this Circuit are clear that the Court is not to reject the evidence that would support the findings of the examiner and adopt the evidence favorable to the claimant. Celebrezze v. Kelly, 5th Cir., 331 F.2d 981, 1964. The evidence adduced before the Examiner and additional evidence received by the Appeals Council, shows that the Plaintiff had three years of college, majoring in English. He worked for the Kansas State Police as an investigator about a year, and solicited advertising for approximately six years when, in 1942, he obtained employment as a railroad fireman which was his occupation until 1948. In the spring of 1948, he was forced to quit working for the railroad because of his health, but the only medical findings at that time were rheumatism in the neck and shoulder region and slight arthritic changes in the cervical spine. Plaintiff was granted sick leave by the railroad, but was unable to return to his former employment, and his seniority and employment rights were finally terminated." }, { "docid": "9516548", "title": "", "text": "position that the evaluation of the medical reports by Dr. Fulton is not sufficient in itself to support the decision of the Secretary, citing as authority the case of Cohen v. Perales, 412 F.2d 44 (5th Cir. 1969), rehearing denied per curiam 416 F.2d 1250 (5th Cir. 1969). The decision in Perales does not support this contention in light of subsequent cases decided by the Fifth Circuit, as pointed out in defendant’s brief: “ * * * the principal holding of the first Perales decision with respect to the hearsay effect of consultative medical reports was limited by the Fifth Circuit in its subsequent per curiam decision. Moreover, the language in Perales with respect to the weight to be given consultative medical reports must be viewed in the light of subsequent Fifth Circuit decisions which are to the contrary. Stillwell v. Cohen, supra [411 F.2d 574 (1969)]; Martin v. Finch, supra [465 (415) F.2d 793 (5 Cir. 1969)]; Breaux v. Finch, [421] F.2d [687], (5 Cir., decided 1/27/70). In Breaux, the Fifth Circuit discussed Perales as follows: ‘In the instant case, the evidence relating to Breaux’s physical condition consists of medical records and testimony by Dr. Norman P. Morin, an orthopedic surgeon. Breaux contends that the records are hearsay, that the doctor’s testimony is hearsay upon hearsay since he had not examined appellant, and that according to the principle announced in Cohen v. Perales, uncorroborated hearsay evidence cannot be considered “substantial evidence.” While the original decision in Cohen may have provided some support, even though slight, for the principle relied on by appellant, this court’s opinion on petition for rehearing clearly undermines such an inference: “Our opinion holds, and we affirm, that mere uncorroborated hearsay evidence as to the physical condition of a claimant, standing alone and without more, in a social security disability case tried befoi'e a hearing examiner, as in our case, is not substantial evidence that will support a decision of the examiner adverse to the claimant, if the claimant objects to the hearsay evidence, and if the hearsay evidence is directly contradicted by the testimony of" }, { "docid": "2036510", "title": "", "text": "PER CURIAM: We have concluded on the merits that oral argument is unnecessary in this case. Accordingly, we have directed the Clerk to place the ease on the Summary Calendar and to notify the parties of this fact in writing. See Huth v. Southern Pacific Co., 5 Cir.1969, 417 F.2d 526; Murphy v. Houma Well Service, 5 Cir.1969, 409 F.2d 804; 5th Cir.R. 18. Forrest Gray commenced this action to obtain judicial review of the determination by the Secretary of the Department of Health, Education and Welfare that Gray was not entitled to disability insurance benefits or to a period of disability . The district court granted summary judgment in favor of the Secretary. We affirm. Section 205(g) of the Social Security Act provides that “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * 42 U.S.C. § 405(g) (1964). “The [primary] function of this Court, therefore, is not to re-weigh the evidence but to determine whether there is substantial evidence to support the Secretary’s decision.” Martin v. Finch, 5 Cir.1969, 415 F.2d 793; Rome v. Finch, 5 Cir.1969, 409 F.2d 1329, 1330; Labee v. Cohen, 5 Cir.1969, 408 F.2d 998, 1000. Gray, who is sixty-two years old, contends that he is unable to engage in any substantial gainful activity because of numerous physical infirmities. The medical evidence indicates that Gray is suffering from arthritis of the spine and back, numbness in his right index finger, varicose veins and limpness in his left leg, and a left flat foot. These reports varied in assessing the degree of Gray’s infirmities. None, however, indicated any physical condition which prevented Gray from working. Gray presented no evidence other than his own self-serving testimony to support his contention that he was unable to engage in substantial gainful employment. The extensive medical evidence, viewed in the light most favorable to the claimant, shows no more than that Gray cannot do heavy physical labor. See Martin v. Finch, 5 Cir.1969, 415 F.2d 793. There is no showing that he could not do the types of work he" }, { "docid": "23116015", "title": "", "text": "Secretary of Health, Education and Welfare resolves a conflict in the evidence between total disability and less than total disability in favor of a finding of total disability within a given period of eligibility, a further finding that disability terminated on a specific date, based upon that same medical evidence which specifically fails to indicate a fact of termination of disability, is not supported by substantial evidence, as required by 42 U.S.C.A. Section 405(g).” Thus, in essence the only questions are whether the Secretary was required to take additional evidence as to the termination of the disability after having considered all the evidence as to the nature, extent and duration of the appellant's disability and whether, if not, there was substantial evidence to support the findings of the Secretary. Under the statute judicial review of decisions of the Secretary is very limited. As stated by this Court in Floyd v. Finch, 441 F.2d 73, 75 (1971): “His findings of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g); Rose v. Cohen, 406 F.2d 753 (6th Cir. 1969). Courts are not permitted to try the cases de novo; Walters v. Gardner, 397 F.2d 89 (6th Cir. 1968). “Courts may not resolve conflicts in the evidence or decide questions of credibility. Moon v. Celebrezze, 340 F.2d 926 (7th Cir. 1965).” or as stated at greater length in Lane v. Gardner, 374 F.2d 612, 616 (1967): “It was for the Secretary and his examiner, as the fact-finders, to pass upon the' credibility of the witnesses and weigh and evaluate their testimony. Celebrezze v. Sutton, 338 F.2d 417, 421 (CA 8, 1964); Thomas v. Celebrezze, 331 F.2d 541, 543 (CA 4, 1964); Miller v. Ribicoff, 198 F.Supp. 819, 821 (E.D.Mich.1961). Judicial review of the Secretary’s findings of fact is limited to inquiry whether there is substantial evidence to support such findings. Section 205(g) of the Act, 42 U.S.C. § 405(g); May v. Gardner, 362 F.2d 616, 618 (CA 6, 1966) ; King v. Celebrezze, 341 F.2d 108, 109 (CA 6, 1965). We hold that there was substantial evidence supporting the Secretary’s" }, { "docid": "21178507", "title": "", "text": "EDWARDS, Circuit Judge. Lee Roy Banks, claimant in this case, sought a period of disability and disability insurance benefits under the Social Security Act (42 U.S.C. §§ 416 (i) and 423). The Hearing Examiner, after hearing, concluded that these benefits should be denied because claimant was not disabled within the meaning of the Social Security Act, 42 U.S.C. §§ 416(i) (1) (A) and 423(c) (2). The Secretary of the Department of Health, Education and Welfare, through action of the Appeals Council, adopted the Hearing Examiner’s decision. The District Judge who heard claimant’s petition for review of this adverse decision found no substantial evidence to support the Trial Examiner’s finding. He thereupon reversed and remanded the case, directing that claimant be granted both a period of disability and disability insurance benefits. Unfortunately, the brief memorandum and order entered does not advise us on what grounds he reached either conclusion. See Celebrezze v. Zimmerman, 339 F.2d 496 (C.A.5, 1964). Disability insurance benefits are payments made to an individual who is insured under the Social Security Act when he becomes disabled within the meaning of the Act. A period of disability is, however, simply the freezing of an insured individual’s benefit status so that his retirement benefit rights are preserved, even though he does not do any more work in an employment covered by Social Security. Generally the requirements for both disability benefits and disability freeze are the same. But this is not true where, as here, an individual has achieved an insured status for disability purposes under railroad employment. This record clearly shows that Lee Roy Banks has held only two regular jobs in his lifetime — one with the L & N Railroad for 15 years and one with the L & H Coal Company for four and one-half years. Claimant’s railroad employment was not subject to Social Security coverage. 42 U.S.C. § 410(a) (9) As to claimant’s nonrailroad employment (which was covered by Social Security) coverage for twenty quarters is required for payment of disability insurance benefits. 42 U.S.C. § 416(i) (3) (B). It is conceded that without borrowing railroad" }, { "docid": "4064788", "title": "", "text": "PER CURIAM: Under the recent opinion of the Supreme Court of the United States in the case of Richardson, Secretary of Health, Education, and Welfare v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L. Ed.2d 842, decided May 3, 1971, the conclusion of the District Court that the testimony of Dr. C. W. Williams, the orthopedic surgeon, and Dr. R. C. Hardy, the neurosurgeon, did not constitute substantial evidence was error. Therefore, the Secretary’s determination, being supported by substantial evidence, must be affirmed, even if there was also substantial evidence which may have supported a finding in favor of the claimant Grant. Moreover, the resolution of any conflict in the evidence, including conflicting medical opinions, as in the case at hand, and the determination of questions of credibility of the witnesses are not for the court; such functions are solely within the province of the Secretary. Martin v. Finch, 5 Cir., 1969, 415 F.2d 793; Stillwell v. Cohen, 5 Cir., 1969, 411 F.2d 574, 575-576. The motion of the defendant, Secretary of Health, Education and Welfare, should be granted; and the motion of the plaintiff (claimant) for summary judgment should be denied. Reversed with directions." }, { "docid": "20571548", "title": "", "text": "not less than 12 months.” 42 U.S.C. §§ 416(i) (1), 423(d) (1). The bounds of this Court’s review of the Secretary’s determination are delineated in 42 U.S.C. § 405(g) which provides that “the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * * ”. Substantial evidence has been repeatedly defined as not necessarily a preponderance of the evidence, but more than a scintilla. Thomas v. Celebrezze, 331 F.2d 541, 543 (4 Cir. 1964); Hall v. Gardner, 286 F.Supp. 488 (D.Me.1968). Findings as to credibility are within the province of the Secretary and not of the trial court. Celebrezze v. Zimmerman, 339 F.2d 496 (5 Cir. 1964). Nevertheless, the Court is not obliged to rubber stamp administrative decisions. Gardner v. Brian, 369 F.2d 443 (10 Cir. 1966); Santiago v. Gardner, 288 F.Supp. 156 (D.Puerto Rico 1968). There are four elements which must be considered in determining whether a claimant is disabled within the meaning of the Social Security Act: (1) The objective medical facts, which are the clinical findings of the physicians divorced from their expert judgment or opinions as to the significance of these findings; (2) the diagnosis and expert medical opinions on subsidiary questions of fact, such as the effect of the clinically determinable impairments upon the individual; (3) the subjective evidence of pain and disability testified to by the claimant and corroborated by members of his family and others in a position to observe him; and (4) the claimant’s age, educational background, and work history. Underwood v. Ribicoff, 298 F.2d 850, 851 (4 Cir. 1962); Dillon v. Celebrezze, 345 F.2d 753 (4 Cir. 1965). Examination of the record in the instant ease reveals that the claimant, a 56-year-old Caucasian female, alleges that she has suffered from a number of ailments during the period in question and up to the present time, principally: weakness in legs, arms, neck, shoulders, and hands; weak spells; severe headaches; nervousness; swelling in stomach; severe pain in left side and chest. These allegations are corroborated by statements of her husband, daughter and others. Claimant was" }, { "docid": "2853985", "title": "", "text": "any substantial gainful activity.’ ” Bujnovsky v. Celebrezze, 343 F.2d 868, 870 (3d Cir. 1965); Janek v. Celebrezze, 336 F.2d 828, 833 (3d Cir. 1964). Plaintiff last met the special earning requirements of the Act on September 30, 1964. It was therefore incumbent upon plaintiff to establish that his disability began on or before that date. It was the finding of the Hearing Examiner that, at the time when plaintiff last met the special earning requirements of the Act, his impairments consisted of minimal osteoarthritis of the spine, mild hearing defect, mild urinary tract infection, mild emphysema and a mild anxiety state. While finding that claimant’s impairments may have precluded him from engaging in his previous occupation in coal mines and from any heavy or arduous work, the Hearing Examiner, nevertheless, found that plaintiff was able to engage in many forms of employment of a light and/or sedentary nature. Plaintiff contends that, in determining the extent of his impairments, the Hearing Examiner failed to take into consideration plaintiff’s own testimony as to the pain which he suffered as a result of his impairments. There is no question that subjective evidence of pain and disability is one of the elements to be considered in reaching a determination of disability, but such evidence must be evaluated with’ due consideration for credibility, motivation and medical evidence of impairment. Schmidt v. Secretary of Health, Education and Welfare, 299 F.Supp. 1315, 1318 (D.C.P.R.1969). The issue of credibility is within the sole province of the Hearing Examiner to decide and a redetermination of that issue is not the province of the Court. Lechelt v. Cohen, 428 F.2d 214 (7th Cir. 1970), decided June 17, 1970; Moon v. Celebrezze, 340 F.2d 926, 930 (7th Cir. 1970). A review of the record and the decision of the Hearing Examiner indicates that the Hearing Examiner did consider plaintiff’s own testimony as to the pain which he suffered but afforded that testimony something less than full weight in the light of substantial medical evidence of record. Plaintiff testified that since 1963 he had suffered from pain in his lower back" }, { "docid": "10507718", "title": "", "text": "review by the Court is not a trial de novo and the function of the Court is not to reweigh the evidence or to substitute its judgment for that of the Secretary. The role of the Court is solely to determine if there is substantial evidence to support the Secretary’s decision. Goodman v. Richardson, 5 Cir., 1971, 448 F.2d 388; Richardson v. Richardson, 5 Cir., 1970, 437 F.2d 109; Brown v. Finch, 5 Cir., 1970, 429 F.2d 80; Rome v. Finch, 5 Cir., 1969, 409 F.2d 1329. Resolution of conflicts in the evidence, including conflicting medical opinions and determinations of credibility are not for the courts; such functions are solely within the province of the Secretary. Grant v. Richardson, 5 Cir., 1971, 445 F.2d 656; Martin v. Finch, 5 Cir., 1969, 415 F.2d 793; Stillwell v. Cohen, 5 Cir., 1969, 411 F.2d 574; Hayes v. Celebrezze, 5 Cir., 1963, 311 F.2d 648; Page v. Celebrezze, 5 Cir., 1963, 311 F.2d 757. Our review of the record in this case, the whole record, leaves us unable to conclude here that the Secretary’s decision was so supported by substantial evidence. We are propelled to this conclusion in the main because of a conspicuous absence of credibility choices in existence during the decisional processes which finally culminated in the Secretary’s decision. That the claimant was afflicted with severe rheumatoid arthritis and, as such, totally disabled at the time of the bringing of this action and thereafter is undisputed. Neither is it disputed, nor could it be, that claimant’s arthritic condition was diagnosed on several occasions prior to the December 31, 1962 expiration of his insured status. Doctor Mims Mitchell, the Perales consultant at the hearing held on July 8, 1971, acknowledged a medical report prepared by Doctor Gremillion on April 6, 1961 which concluded that, at that time, claimant was totally disabled. The hearing examiner’s consultant also alluded to a subsequent medical report prepared by Doctor DeBlanc, the claimant’s personal physician, which asserted that claimant was treated for his arthritic condition prior to December 31, 1962. The temporal connexity between claimant’s physical condition" }, { "docid": "23419502", "title": "", "text": "condition prevented her from securing employment. The record indicates that Plaintiff was examined, treated and hospitalized for both conditions as well as for other non-related medical problems intermittently from 1951 through 1968. The Act requires a claimant to establish his inability to engage in substantial gainful activity. Jones v. Celebrezze, 331 F.2d 226 (C.A. 7, 1964). The claimant’s burden is no greater than 862 (D.C.Mo., 1966), aff’d), 374 F.2d 9 proof by a preponderance of the evidence. Whaley v. Gardner, 255 F.Supp. (8 Cir.) Further, the claimant must show that the disability existed prior to the expiration of his insured status, i. e„ by September 30, 1961, in the instant case. Workman v. Celebrezze, 360 F.2d 877 (C.A. 7, 1966). The principal question before us, as it was for the District Court, is whether there was substantial evidence in the record to support the examiner’s determination of non-eligibility; if so, the determination is conclusive. 42 U. S.C. § 405(g); Kartje v. Secretary of Health, Education and Welfare, 359 F. 2d 762 (C.A. 7, 1966). The District Court found that there was substantial support in the evidence for the examiner’s findings and conclusions, and that Plaintiff had not sustained her burden of proof. Having reviewed the record, we are of the same mind as the District Court. The medical evidence adduced at the Plaintiff’s 1968 hearing clearly indicated that she suffered from a debilitating respiratory condition at the time, and that her 1958 back injury had been a severe handicap. However, no show ing was made on the basis of the testimony and medical documents supported by clinical and laboratory diagnosis that these conditions rendered Plaintiff disabled as of September 30, 1961, the date her eligibility for disability benefits terminated. The law requires that a claimant demonstrate his disability within the prescribed period of eligibility, not prior to nor subsequent to the dates in question. Workman, supra. Plaintiff’s collateral' attacks upon the administrative proceedings do not raise issues sufficient to remand her case. The record’s failure to reflect certain notes of a treating physician’s 1967 examination are countered by the inclusion" }, { "docid": "11231951", "title": "", "text": "and indefinite duration.” [42 U.S.C. § 423(c) (2)] In Carden v. Gardner, just recently decided by this Court, 352 F.2d 51 (November 1, 1965), we said: “However, it is also the rule that where the Secretary has found from the evidence that the claimant is able to engage in a former trade or occupation, such a determination ‘precludes the necessity of an administrative showing of gainful work which the appellant was capable of doing and the availability of any such work’. [Ward v. Ribicoff, 309 F.2d 157, 157-158 (6th Cir. 1962); accord, McMullen v. Celebrezze, 335 F.2d 811, 816 (9th Cir. 1964).]” We have carefully reviewed the evidence before the Examiner and find that there is substantial evidence in the record before us to support the findings of the Secretary adverse to appellee’s claim of “disability”. The Court erred therefore in holding that there was no substantial evidence in support of, the Secretary’s findings. A careful review of the record however discloses that the claimant did not have the proper representation to which he was entitled at the hearing before the Examiner. As stated above, his attorney failed and was admittedly unable to give him the legal assistance he should have had to present his evidence and to cross-examine the witnesses produced at the hearing to contradict his claims. Under these circumstances claimant cannot be held to have had the full hearing that he was entitled to. Accordingly, the judgment of the District Court is set aside and the case is remanded with direction that an order be entered remanding the case to the Secretary of Health, Education and Welfare with instructions that a re-hearing be granted to give appellee an opportunity to present additional testimony and evidence to support his claims of alleged disability from engaging in substantial gainful activity." } ]