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[ { "docid": "22616656", "title": "", "text": "Patenaude, 210 F.3d 135, 140 (3d Cir.2000); see also 28 U.S.C. § 1651(a) (codifying the common law writ of mandamus by providing that the “Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law”). Mandamus provides a “drastic remedy that a court should grant only in extraordinary circumstances in response to an act amounting to a judicial usurpation of power.” Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir.1996) (citations and internal quotation marks omitted). Three conditions precede seeking a mandamus writ: no other adequate means to attain the relief ... desire[d] — a condition designed to ensure that the writ will not be used as a substitute for the regular ap peals process[;] ... showing that ... [the] right to issuance of the writ is clear and indisputable^ and] ... the issuing court, in the exercise of its discretion, ... [is] satisfied that the writ is appropriate under the circumstances. Cheney v. United States Dist. Court, 542 U.S. 367, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (citations, internal quotations marks and brackets omitted). The first prerequisite — that the petitioner have no other adequate means to attain the relief sought — “emanates from the final judgment rule: mandamus must not be used as a mere substitute for appeal.” Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1422 (3d Cir.1991); see also Madden v. Myers, 102 F.3d 74, 77 (3d Cir.1996) (“Indeed, a writ of mandamus may not issue if a petitioner can obtain relief by appeal....”). The Supreme Court has cautioned that “an appellate court cannot rightly exercise its discretion to issue a writ whose only effect would be to ... thwart the Congressional policy against piecemeal appeals.” Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 30, 63 S.Ct. 938, 87 L.Ed. 1185 (1943); cf. In re Bankers Trust Co., 775 F.2d 545, 547 (3d Cir.1985) (explaining that mandamus relief is “available only when necessary to prevent grave injustice” and is not to" } ]

[ { "docid": "12844791", "title": "", "text": "to do so. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam). A writ of mandamus may issue only if the challenged order is effectively unreviewable at the end of the case, it inflicts irreparable harm, and it “so far exceed[s] the proper bounds of judicial discretion as to be legitimately considered usurpative in character, or in violation of a clear and indisputable legal right, or, at the very least, patently erroneous.” In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1295 (7th Cir.1995). By their nature, forum non conveniens decisions are ill-suited to this remedy. They are instead committed to the sound discretion of the district court, see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), and so a litigant’s right to a particular result will rarely be “clear and indisputable.” Allied Chemical, 449 U.S. at 36, 101 S.Ct. 188. Nevertheless, even in the context of discretionary decisions, mandamus remains an appropriate remedy if the trial judge commits a “clear abuse of discretion,” see Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953), or “patentf ] error[ ].” Rhone-Poulenc Rorer, 51 F.3d at 1295. Because mandamus is not a substitute for an appeal, the terms “clear abuse of discretion” or “patent error” are not synonymous with the type of ordinary error that would justify reversal in a direct appeal. See Will v. United States, 389 U.S. 90, 104, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (quoting Bankers Life, 346 U.S. at 382, 383, 74 S.Ct. 145 (mandamus is not available for all reversible errors; the function of the writ is not to control the decision of the trial court, but rather to confine the trial court “to the sphere of its discretionary power”)); In re Lewis, 212 F.3d 980, 982 (7th Cir.2000); Eisenberg v. United States District Court, 910 F.2d 374, 375 (7th Cir.1990); In re Ralston Purina Co., 726 F.2d 1002, 1004-05 (4th Cir.1984). The petitioner must demonstrate that the error is" }, { "docid": "10213540", "title": "", "text": "mandates that such an extension, and its direct implications on commercial lending, should not be sanctioned solely by a lower court, but should be allowed to be reviewed by a higher court on appeal.” Mandamus Petition at 21-22. III. A. It is well-established that the mandamus remedy “is a drastic one, to be invoked only in extraordinary situations.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980); see also Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976); Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967).. To ensure that the writ of mandamus will issue only in extraordinary circumstances, the Supreme Court has consistently stated that the party seeking the issuance of the writ must “have no other adequate means to attain the relief he desires” and must satisfy the burden of showing that his right to issuance of the writ is “clear and indisputable.” Allied Chemical, 449 U.S. at 35, 101 S.Ct. at 190 (citations omitted). This court has frequently echoed those words of the Supreme Court. See, e.g., In re Davis, 730 F.2d 176, 181 (5th Cir.1984); Commodity Futures Trading Comm’n v. Preferred Capital Inv. Co., 664 F.2d 1316, 1321 (5th Cir.1982); American Trucking Assocs., Inc, v. Interstate Commerce Comm’n, 673 F.2d 82, 86 n. 6 (5th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 493 (1983). A panel of this court recently stated that the extraordinary remedy of mandamus is “available only where there is a clear and indisputable abuse of discretion or usurpation of judicial power by the trial court.” Cajun Elec. Power Coop., Inc. v. Riley Stoker Corp. (In re Cajun Elec. Power Coop., Inc.), 791 F.2d 353, 365 (5th Cir.1986) (citing Allied Chemical, 449 U.S. at 34-36, 101 S.Ct. at 189-90; Schlagenhauf v. Holder, 379 U.S. 104, 109-10, 85 S.Ct. 234, 237-38, 13 L.Ed.2d 152 (1964); In re Sessions, 672 F.2d 564, 566 (5th Cir.1982)). That statement is, in our view, an accurate assessment of" }, { "docid": "13906164", "title": "", "text": "plea bargain agreement under Rule 11. IV. The final question is whether a writ of mandamus should issue. The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 189, 66 L.Ed.2d 193 (1980) (per curiam); Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). The Supreme Court has recognized that the writ of mandamus “has traditionally been used in the federal courts only ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so____’ Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy.” 449 U.S. at 35, 101 S.Ct. at 190 (quoting Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)). A party seeking issuance of the writ must have no other adequate means to attain the desired relief and must show that his right to the writ is clear and indisputable. See id. The district court’s rejection of the proposed plea bargain does not justify the issuance of a writ. A defendant or the Government may seek review of such an order on direct appeal after a final judgment of conviction and sentencing. Therefore it cannot be said that the parties have no adequate means to seek the desired relief. See id. 449 U.S. at 86, 101 S.Ct. at 190. Moreover, the authority to accept or reject a plea bargain agreement under Rule 11(e) is confined almost entirely to the trial court’s discretion. A district court is under no duty to consider a plea agreement or to accept or reject it. See, e.g., Moore, 637 F.2d at 1196. “Where a matter is committed to discretion, it cannot be said that a litigant’s right to a particular result is ‘clear and indisputable.’ ” Daiflon, 449 U.S. at 36, 101 S.Ct. at 190 (quoting Will v. Calvert Fire Ins. Co., 437" }, { "docid": "23688175", "title": "", "text": "a discretionary order to be successfully appealed, the Court said any benefit realized by the occasional reversal of an erroneous disqualification would be outweighed by the delay accompanying piecemeal review. Further, it observed that an attorney aggrieved by an unwarranted disqualification had alternative means of redress: he could seek certification for discretionary appeal pursuant to 28 U.S.C. § 1292, petition for a writ of mandamus, or — if all else failed take the matter to the Circuit’s Judicial Council. Id. at 435, 105 S.Ct. at 2763; see also id. at 436, 105 S.Ct. at 2764 (“A mistaken ruling disqualifying counsel imposes financial hardship on both the disqualified lawyer and the client. But the possibility that a ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality requirement imposed by Congress.”). 2. The law of mandamus “[T]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.... Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34-35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980); see also In re Temple, 851 F.2d 1269, 1271 (11th Cir.1988) (mandamus “is to be exercised only in drastic situations, when no other adequate means are available to remedy a clear usurpation of power or abuse of discretion”); In re Evans, 524 F.2d 1004, 1007 (5th Cir.1975) (“Mandamus lies only to confine a lower court to its jurisdiction or to compel it to perform ministerial functions over which it has no discretion.”). The party seeking mandamus has the burden of demonstrating “that its right to issuance of the writ is ‘clear and indisputable.’ ” Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967) (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953)); In re American Airlines, Inc., 972 F.2d 605, 608 (5th Cir.1992) (quoting Mallard v. United States Dist. Court, 490 U.S. 296, 309, 109 S.Ct. 1814, 1822," }, { "docid": "22711704", "title": "", "text": "chance that the litigation at hand might be speeded, or a ‘particular injustie[e]’ averted, Van Cauwenberghe v. Biard, 486 U.S. 517, 529, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988), by a prompt appellate court decision.” Digital Equip., 511 U.S. at 868, 114 S.Ct. 1992 (alteration in original). Ultimately, the order of the district court is a discovery order like any other, and must be treated the same for jurisdictional purposes. C. Mandamus The Government filed a petition for a writ of mandamus as an alternate basis for jurisdiction. Mandamus is a “drastic” remedy, “to be invoked only in extraordinary situations.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam). Mandamus “has traditionally been used in the federal courts only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (internal quotation marks omitted). In short, “only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of this extraordinary remedy.” Id. (internal quotation marks omitted). In order to preserve the extraordinary nature of the mandamus remedy, the Supreme Court has set forth two conditions that must be satisfied as a predicate to mandamus jurisdiction. First, “the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires.” Kerr v. United States Dist. Ct., 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); see Will, 389 U.S. at 97, 88 S.Ct. 269 (noting that “[m]andamus ... may never be employed as a substitute for appeal in derogation of ... clear policies” favoring delay of review until final judgment). Second, the petitioner bears “the burden of showing that [his] right to issuance of the writ is clear and indisputable.” Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 98 L.Ed. 106 (1953) (internal quotation marks omitted). The Government has not established" }, { "docid": "13629933", "title": "", "text": "decision, coupled with the injunction barring them from participating in the Westgate Action, has effectively forced them to “opt-out” of the Westgate Class. This result, they contend, has denied them of their substantive due process right to participate in the Westgate Action. It is well settled that a writ of mandamus is a drastic remedy confined to rare situations. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (“Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy.”); In re BellSouth Corp., 334 F.3d 941, 954 (11th Cir.2003) (“Mandamus is an extraordinary remedy requiring demonstrable injustice or irreparable injury.”). Courts are reluctant to issue the writ due to the potential for abuse: “Mandamus is not to be used as a subterfuge to obtain appellate review that is otherwise foreclosed by law.” BellSouth, 334 F.3d at 951. To foreclose the argument that it constitutes an abuse of the writ, the mandamus petition must satisfy three conditions. First, because the entry of a final judgment must ordinarily precede appellate review, the petitioner must demonstrate that “no other adequate means” exists to obtain the relief desired. Kerr v. U.S. Dist. Ct. for N.D. Calif., 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976). Second, the petitioner must demonstrate a “clear and indisputable right” to the issuance of the writ. See BellSouth, 334 F.3d at 953-54 (“Significantly, a party is not entitled to mandamus merely because it shows evidence that, on appeal, would warrant reversal of the district court.”); United States v. Denson, 603 F.2d 1143, 1147 n. 2 (5th Cir.1979) (“[T]he writ will not issue to correct a duty that is to any degree debatable: the trial court must be acting beyond its jurisdiction or in a fashion about which discretion is denied it.”). Third, the issuing court must be persuaded that issuing the writ is within its discretion. Kerr, 426 U.S. at 403, 96 S.Ct. 2119. Given the record before us, we cannot conclude that the Dealers have surmounted the requisite" }, { "docid": "18782820", "title": "", "text": "then brought pro se this petition for writ of mandamus. We appointed counsel to help Lane with this petition, and specifically requested information on the number of prisoner petitions filed and the number of law yers available to receive appointments in the central Missouri area. I. “[T]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980). The writ may issue only in those “exceptional circumstances * * * amounting to a judicial usurpation of power * * Id. at 35, 101 S.Ct. at 190; Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). Traditionally, the writ has issued only “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Will, 389 U.S. at 95, 88 S.Ct. 269, quoted in Allied Chemical Corp., 449 U.S. at 35, 101 S.Ct. at 190. Use of the writ of mandamus is severely limited to prevent litigants from obtaining appellate review of district court orders which otherwise could not be appealed until final judgment. Allied Chemical Corp., 449 U.S. at 35, 101 S.Ct. at 190; Central Microfilm Service v. Basic/Four Corp., 688 F.2d 1206 (8th Cir.), cert. denied, 459 U.S. 1204, 103 S.Ct. 1191, 75 L.Ed.2d 436 (1983). A federal court is justified in issuing a writ of mandamus, therefore, only if a petitioner is able to establish a “clear and indisputable right” to the relief sought, the defendant has a nondiscretionary duty to honor that right, and the petitioner has no other adequate alternative administrative or judicial remedy. Borntrager v. Stevas, 772 F.2d 419, 420 (8th Cir.), cert. denied, — U.S. -, 106 S.Ct. 533, 88 L.Ed.2d 464 (1985); accord Homewood Professional Care Center Ltd. v. Heckler, 764 F.2d 1242, 1251 (7th Cir.1985); Ganem v. Heckler, 746 F.2d 844, 852 (D.C.Cir.1984); see Allied Chemical Corp., 449 U.S. at 35, 101 S.Ct. at 190. Because Lane" }, { "docid": "4078305", "title": "", "text": "We also conclude that the district court erred in appointing Smith to a term position. However, we will affirm that portion of the district court’s order directing that Smith be appointed to a permanent position at an appropriate grade and salary. 1. The Supreme Court has consistently held that the remedy of mandamus “is a drastic one, to be invoked only in extraordinary situations.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 189, 66 L.Ed.2d 193 (1980) (per curiam). The writ will issue only when “a party seeking issuance [has] no other adequate means to attain the relief he desires,” and when the “right to issuance of the writ is ‘clear and indisputable.’ ” Id. at 35, 101 S.Ct. at 190, quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953). When appointment to a position of employment is sought, the right to mandamus is “clear and indisputable” only when the party seeking appointment has a right or entitlement to employment based on statute or regulation. See Donovan v. United States, 580 F.2d 1203, 1208-09 (3d Cir.1978). If the appointment sought is not a “clear legal entitlement,” but rather a matter subject to agency discretion, mandamus will not lie. No statute or regulation mandated the appointment of Smith to a career-conditional position. Any decision to appoint Smith was instead subject to the informed exercise of the Marshals Service’s discretion and, as we have held, reviewable for abuse of discretion. “Where a matter is committed to discretion, it cannot be said that a litigant’s right to a particular result is ‘clear and indisputable.’ ” Allied Chemical Corp. v. Daiflon, Inc., supra, 449 U.S. at 36, 101 S.Ct. at 190. Accordingly, mandamus is not available to compel Smith’s appointment to a permanent position. For similar reasons, mandamus would not be available to appoint Smith to a term position. 2. Although we hold that mandamus will not support an order appointing Smith to permanent employment, Smith is not thereby deprived of all judicial remedies. Section 10(e) of the" }, { "docid": "22136172", "title": "", "text": "1292(b) certification, a persistent disregard of the Rules of Civil Procedure, or a manifest abuse of discretion, interlocutory review of pretrial discovery orders is not generally permitted. Id. at 1031-32. But, we also noted that the case presented no legal question of first impression or of extraordinary significance. Id. at 1032; see also In re United States, 565 F.2d 19, 22 (2d Cir.1977) (discussing Xerox), cert. denied, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978). Since the district court’s discovery order here raises such questions, granting mandamus in this case is not inconsistent with Xerox. B. The Importance of Granting Mandamus In addition to raising novel issues, this petition also presents two important reasons justifying the issuance of the writ in this case. Without mandamus, petitioner has no other remedy adequate to preserve his confidence. And because the district court’s holding raises a legal issue of general applicability, its resolution will aid in this Circuit’s effective administration of justice. 1. No Other Adequate Remedy Available The Supreme Court has stated that in reviewing mandamus a court must consider whether the party seeking the writ has any “other adequate means to attain the relief he desires.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam). No such adequate means are present here. Because the trial court’s discovery order is interlocutory it is not appealable under 28 U.S.C. § 1291 (1982) until a final order is rendered in the litigation. See, e.g., Borden Co. v. Sylk, 410 F.2d 843, 845 (3d Cir.1969). Even were petitioner to be adjudicated in civil contempt for refusal to comply with the discovery order, as a party, he would have no immediate right to appeal. See DeMasi v. Weiss, 669 F.2d 114, 122-23 (3rd Cir.1982); International Business Machs. Corp. v. United States, 493 F.2d 112, 117-19 (2d Cir.1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974). And, immediate appellate review by certification is appropriate only when the challenged order “involves a controlling question of law” and where “an immediate appeal" }, { "docid": "22717016", "title": "", "text": "be an effort to avoid the requirements of the PLRA but that in fact constitutes an appeal in a civil action, the PLRA would likely apply and a filing fee would have to be collected. This makes clear that the Clerk’s office’s treatment of questionable mandamus petitions must be subject to review by the Court. H. Turning to the merits of Madden’s mandamus petition, we find no basis for granting the petition for writ of mandamus. Mandamus is an appropriate remedy in extraordinary circumstances only. Kerr v. United States Dist. Ct., 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976). A petitioner seeking the issuance of a writ of mandamus must have no other adequate means to obtain the desired relief, and must show that the right to issuance is clear and indisputable. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980); Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148-49, 98 L.Ed. 106 (1953). Madden asks this Court to issue an order directing the district court to decide his ease forthwith and to hold that his claims have been exhausted. As we have noted above, an appellate court may issue a writ of mandamus on the ground that undue delay is tantamount to a failure to exercise jurisdiction, see, e.g., McClellan v. Young, 421 F.2d 690 (6th Cir.1970), and, without actually issuing a writ, may order a district court not to defer adjudicating a case. See McDonnell Douglas Corp., 429 F.2d 30-31. Madden cannot demonstrate that a writ of mandamus is warranted. Because he can appeal the decision of the district court when a final order is issued, Madden cannot demonstrate that no other adequate means of relief regarding the issue of exhaustion exists. Madden’s claims of delay have greater force. That resolution of Madden’s claims has been delayed is clear. The Magistrate Judge’s Report and Recommendation was filed in February, 1996. Madden filed objections in March and motions to amend , the petition and for appointment of counsel in" }, { "docid": "19494518", "title": "", "text": "2009) (citing In re Cheney , 406 F.3d 723, 729 (D.C. Cir. 2005) (en banc) (\"[I]f there is no clear and compelling duty under the statute as interpreted, the district court must dismiss the action. To this extent, mandamus jurisdiction under § 1361 merges with the merits.\")). It is undisputed that the public is entitled to certain documents pertaining to the Commission's work under FACA § 10(b), see, e.g. , Opp'n Mem. at 23 (quoting Section 10(b) in pertinent part); the seminal question is what documents Plaintiff, as a commissioner, is entitled to receive. A. Likelihood of Success on the Merits 1. Mandamus Jurisdiction Plaintiff seeks relief pursuant to 28 U.S.C. § 1361 (2016), which provides that \"district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.\" In this case, that relief would be an injunction in the form of mandamus requiring Defendants to comply with FACA. Mandamus is a \"drastic remedy, to be invoked only in extraordinary circumstances.\" Fornaro v. James , 416 F.3d 63, 69 (D.C. Cir. 2005) (internal quotation marks omitted; citing Allied Chem. Corp. v. Daiflon, Inc. , 449 U.S. 33, 34, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) ). \"To show entitlement to mandamus, plaintiffs must demonstrate (1) a clear and indisputable right to relief, (2) that the government agency or official is violating a clear duty to act, and (3) that no adequate alternative remedy exists.\" Am. Hosp. Ass'n v. Burwell , 812 F.3d 183, 189 (D.C. Cir. 2016). These requirements are jurisdictional. Id. Even when these requirements are met, however, \"a court may grant relief only when it finds compelling equitable grounds.... The party seeking mandamus has the burden of showing that its right to issuance of the writ is clear and indisputable.\" Id. (citing Power v. Barnhart , 292 F.3d 781, 784 (D.C. Cir. 2002) ). In this posture, the Court is not deciding in resolving this motion whether to issue mandamus. Rather, the Court must" }, { "docid": "22322854", "title": "", "text": "preparation for his deposition. (Petition, Exhibit E) . Upon petitioner’s motion for reconsideration, Judge Hannum reaffirmed his order, holding that although the select grouping of documents constituted attorney work product, it was not “opinion” work product entitled to absolute protection, and that the principles behind Federal Rule of Evidence 612 supported Peil’s claim to identification of the documents. (Petition, Exhibit F). Sporck now asks this court to issue a writ of mandamus directing the trial court to vacate both orders. I. The remedy of mandamus is properly invoked only in extraordinary situations and where “necessary or appropriate in aid of [appellate] jurisdiction.” 28 U.S.C. § 1651(a) (1982); see, e.g., Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 189, 66 L.Ed.2d 193 (1980). In order to ensure that a writ of mandamus will issue only in limited circumstances, the Supreme Court has required that “a party seeking issuance have no other adequate means to attain the relief he desires,” id. at 35, 101 S.Ct. at 190, and that the petitioner satisfy the “burden of showing that [his] right to issuance of the writ is ‘clear and indisputable.’ ” Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953). Further, because “[w]here a matter is committed to discretion, it cannot be said that a litigant’s right to a particular result is ‘clear and indisputable,’ ” a writ of mandamus will only be granted for clear error of law. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980). In the case before us, petitioner has established that the issue in dispute “may at some future time come within the court’s appellate jurisdiction,” that post-trial relief would be inadequate because the harm caused by identifying the selected documents would be irreparable, and that he has no other adequate means to obtain the relief sought other than by writ of manda- mus. Further, we believe that review of the issue presented in this case “would comport with the instructional goals of mandamus.”" }, { "docid": "18885851", "title": "", "text": "U.S.C. § 1651(a) (1988), in exceptional eases where the traditional bases for jurisdiction do not apply. And indeed, as we noted in Allegheny, mandamus may be appropriate when the issue concerns the Seventh Amendment entitlement to a jury trial, a fundamental right. See 920 F.2d at 1134 (collecting cases); see also In re Jensen, 946 F.2d 369, 371 (5th Cir.1991) (writ of mandamus appropriate means to determine whether right to jury trial exists in bankruptcy proceeding); In re Hooker Invs., Inc., 937 F.2d 833, 837 (2d Cir.1991) (same). However, it does not need a string citation to reiterate that mandamus must be carefully circumscribed and used “only in extraordinary situations,” for it is a “drastic” remedy. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam). Otherwise, the carefully crafted rules of limited interlocutory review would be circumvented through the vehicle of mandamus. It follows, as the Supreme Court has instructed the courts of appeals, that the petitioner seeking mandamus must satisfy the “burden of showing that [her] right to issuance of the writ is ‘clear and indisputable.’ ” Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953) (quoting United States v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 287, 43 L.Ed. 559 (1899)). This Court has consistently applied this stringent standard. See, e.g., PAS v. Travelers Ins. Co., 7 F.3d 349, 357 (3d Cir.1993) (denying writ of mandamus because it was not clear and indisputable that state claims were not preempted by ERISA); Sunbelt Corp. v. Noble, Denton & Assocs., Inc., 5 F.3d 28, 30, 33 (3d Cir.1993) (granting writ because it was clear and indisputable that district court did not have the legal authority to transfer a case to a district where personal jurisdiction was lacking); Travellers Int’l AG. v. Robinson, 982 F.2d 96, 98 (3d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1946, 123 L.Ed.2d 651 (1993) (denying writ of mandamus because it was not clear and indisputable that petitioner was entitled to jury trial)." }, { "docid": "12844790", "title": "", "text": "Venezuela and Colombia, the private and public interest favored retention of the lawsuits in the United States. See In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 190 F.Supp.2d 1125 (S.D.Ind.2002). Ford and Firestone asked the district court to certify its order for interlocutory appeal under 28 U.S.C. § 1292(b), but the court denied this motion as well, concluding that Ford and Firestone had not met the requirements for certification. See In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 212 F.Supp.2d 903 (S.D.Ind.2002). Ford and Firestone then petitioned this court under 28 U.S.C. § 1651(a) for a writ of mandamus directing the district judge either to grant their motions to dismiss or to certify her order denying their motions to dismiss for interlocutory appeal. In an order dated November 13, 2002, we denied that petition for the reasons set forth in this opinion. I Mandamus is a drastic remedy traditionally used to confine a lower court to the lawful exercise of its jurisdiction or to compel it to exercise its authority when it has a duty to do so. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam). A writ of mandamus may issue only if the challenged order is effectively unreviewable at the end of the case, it inflicts irreparable harm, and it “so far exceed[s] the proper bounds of judicial discretion as to be legitimately considered usurpative in character, or in violation of a clear and indisputable legal right, or, at the very least, patently erroneous.” In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1295 (7th Cir.1995). By their nature, forum non conveniens decisions are ill-suited to this remedy. They are instead committed to the sound discretion of the district court, see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), and so a litigant’s right to a particular result will rarely be “clear and indisputable.” Allied Chemical, 449 U.S. at 36, 101 S.Ct. 188. Nevertheless, even in the context of discretionary decisions, mandamus remains an appropriate remedy if the trial judge" }, { "docid": "10183621", "title": "", "text": "to the agreements to acquire the petitioners’ claims and security interests securing those claims as part of a cash collateral strategy, the assignment of petitioners’ claims is also within the subject matter jurisdiction of the bankruptcy court because the debtors’ rights, liabilities, options, or freedom of action may be affected and because there may be some impact upon the administration of the estates. See In re Dogpatch, U.S.A., Inc., 810 F.2d 782, 786 (8th Cir.1987). The exercise of subject matter jurisdiction, however, requires obtaining personal jurisdiction by appropriate pleadings and process. This Court has the power to issue a writ of mandamus to the respondent pursuant to 28 U.S.C. § 1651 (1988), which provides in relevant part that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The writ of mandamus is an extraordinary remedy and the requirements for its issuance are strict. United States v. Winner, 641 F.2d 825 (10th Cir.1981). The writ has been traditionally used “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 941-42, 87 L.Ed. 1185 (1943). “Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam). The party seeking a writ of mandamus must show that its right to issuance is “clear and indisputable”, and the issuance of a writ of mandamus is within the discretion of the reviewing court. Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976). Mandamus can be used to compel compliance with due process requirements. Elliott v. Weinberger, 564 F.2d 1219 (9th Cir.1977); Hartland v. Alaska Airlines, 544 F.2d 992 (9th Cir.1976) (mandamus is appropriate remedy to correct usurpation of" }, { "docid": "22827876", "title": "", "text": "21 L.Ed. 493 (1872); Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 352, 96 S.Ct. 584, 593, 46 L.Ed.2d 542 (1976); Will v. Calvert Fire Ins. Co., 437 U.S. 655, 662, 98 S.Ct. 2552, 2557, 57 L.Ed.2d 504 (1978); see also State Farm Mut. Auto Ins. Co. v. Scholes, 601 F.2d 1151, 1154 (10th Cir.1979). For mandamus to issue, there must be a clear right to the relief sought, a plainly defined and peremptory duty on the part of respondent to do the action in question, and no other adequate remedy available. Hadley Memorial Hosp., Inc. v. Schweiker, 689 F.2d 905, 912 (10th Cir.1982). Petitioner must also show that his right to the writ is “clear and indisputable.” Mallard v. United States Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989); Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35-36, 101 S.Ct. 188, 190-191, 66 L.Ed.2d 193 (1980); In re Vargas, 723 F.2d 1461, 1467 (10th Cir.1983); United States v. Carrigan, 778 F.2d 1454, 1466 (10th Cir.1985). Under the circumstances of this case, petitioner has established a clear and indisputable right to have his petition expeditiously heard and decided, and he has no alternative remedy. The unfortunately high volume of prisoner cases pending in the District of Kansas is insufficient to justify the delay occasioned here. See McClellan v. Young, 421 F.2d at 691 (numerosity of pending habeas petitions insufficient ground to justify delay in deciding them; writ of mandamus issued directing court to decide petition); see also Jones v. Shell, 572 F.2d at 1280 (busy court docket cannot justify fourteen-month delay in processing claim from date of remand; crowded dockets do not excuse compliance with rules and statutes). Cf. La Buy v. Howes Leather Co., 352 U.S. 249, 259, 77 S.Ct. 309, 315, 1 L.Ed.2d 290 (1957) (congestion of court docket insufficient ground to justify reference to master under Fed.R.Civ.P. 53(b)); Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. at 345, 96 S.Ct. at 590 (court’s crowded docket impermissible ground to remand action to state court); United States v." }, { "docid": "22828502", "title": "", "text": "their complaint, the plaintiffs present one claim relevant to their petition: an action under section 301 of the LMRA, 29 U.S.C. § 185, for breach of CBAs. According to the complaint, the plaintiffs seek declaratory relief, injunctive relief, and damages. The plaintiffs contend that their claim for breach of the CBAs is an action at law, and that the damages they seek are legal relief. The sole issue presented by the petition is: Do the plaintiffs assert legal rights, entitling them to a jury trial under the Seventh Amendment, or are their claims only equitable? For the reasons set forth below, we DENY the plaintiffs’ request for a writ of mandamus. ANALYSIS Standard for granting a writ of mandamus The All Writs Statute, 28 U.S.C. § 1651 (1980), vests in this court the power to issue a writ of mandamus. In re Bendectin Prods. Liab. Litig., 749 F.2d 300, 303 (6th Cir.1984); see also Beacon Theatres v. Westover, 359 U.S. 500, 511, 79 S.Ct. 948, 957, 3 L.Ed.2d 988 (1959). Because mandamus is a “drastic remedy ‘to be invoked only in extraordinary situations,’ ” In re Mechem, 880 F.2d 872, 874 (6th Cir.1989) (quoting Kerr v. United States Dist. Ct., 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976)), a party seeking such a writ usually must satisfy two conditions: (1) that there are no other adequate means for the party to obtain the desired relief, and (2) that the party has a “clear and indisputable” right to issuance of the writ. Id. (quoting Allied Chem. Corp. v. Daiflon Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam)). Where the constitutional right to a jury trial is involved, however, some courts, relying principally on Beacon Theatres, have held that neither of these two preconditions needs to be met. E.g., In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1303 (7th Cir.) (“When the writ is used for [preservation of the right to trial by jury], strict compliance with the stringent conditions on the availability of the writ (including the requirement of proving" }, { "docid": "21943441", "title": "", "text": "by its counsel Boies, Schiller & Flexner LLP (collectively, the BSF Report), redacted of attorney opinion work product. Qwest filed a motion to reconsider the order to produce the Waiver Documents and to certify an interlocutory appeal. Granting the motion in part, the district court clarified its order to specify that Qwest could redact attorney opinion work product from the Waiver Documents, as well as from the BSF Report, before producing them to the Plaintiffs. The court, however, declined to certify an interlocutory appeal of the waiver issue. Consequently, Qwest filed a petition for a writ of mandamus in this court. At Qwest’s request, the district court stayed its order to produce pending our mandamus decision. Neither the directive to redact the BSF Report nor the order to disclose the redacted version have been challenged in this proceeding. Moreover, the parties have not challenged the order to redact attorney opinion work product from the Waiver Documents. Thus, there is no issue concerning opinion work product before us, and our decision is not directed to waiver of opinion work product. For purposes of clarity, we also note that this decision involves no issues of inadvertent disclosure, see, e.g., Genentech, Inc. v. United States Int’l Trade Comm’n, 122 F.3d 1409, 1417 (Fed.Cir.1997), disclosure to a non-adverse party, see In re M & L Bus. Mach. Co., 161 B.R. 689, 696 (D.Colo.1993), or disclosure under a confidentiality agreement that prohibits further disclosures without the express agreement of the privilege holder. II. Analysis A. Mandamus We must first decide whether it is appropriate for us to entertain Qwest’s petition for an extraordinary writ. “The Supreme Court has required that a party seeking mandamus demonstrate that he has no other adequate means of relief and that his right to the writ is ‘clear and indisputable.’ ” Barclaysamerican Corp. v. Kane, 746 F.2d 653, 654 (10th Cir.1984) (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam)). In a mandamus action in which petitioner seeks to have discovery orders involving a claim of privilege reviewed, we" }, { "docid": "23521728", "title": "", "text": "1952), cert. denied, 344 U.S. 921, 73 S.Ct. 388, 97 L.Ed. 710 (1953). Alternatively, Delano and Bloom have asked this Court to treat the “appeals” as applications for leave to file petitions for writs of mandamus pursuant to the All Writs Act, 28 U.S.C. § 1651(a). See State Farm Mut. Auto. Ins. Co. v. Scholes, 601 F.2d 1151, 1154 (10th Cir. 1979). In Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 193 (1981), the Supreme Court reversed per curiam our issuance of a writ of mandamus that would have prohibited the trial judge from conducting a new trial. The Court noted that a writ of mandamus should issue only in exceptional circumstances amounting to a judicial usurpation of power. To gain this extraordinary relief, a party must establish the absence of other adequate means to attain the desired relief and a clear and indisputable right to issuance of the writ. The Court then stated: “A trial court’s ordering of a new trial rarely, if ever, will justify the issuance of a writ of mandamus. On the contrary, such an order is not an uncommon feature of any trial which goes to verdict. A litigant is free to seek review of the propriety of such an order on direct appeal after a final judgment has been entered. Consequently, it cannot be said that the litigant ‘has no other adequate means to seek the relief he desires.’ The authority to grant a new trial, moreover, is confided almost entirely to the exercise of discretion on the part of the trial court. Where a matter is committed to discretion, it cannot be said that a litigant’s right to a particular result is ‘clear and indisputable.’ Will v. Calvert Fire Ins. Co., 437 U.S. 655, 666 [98 S.Ct. 2552, 2559, 57 L.Ed.2d 504] (1978) (plurality opinion).” Allied Chemical, 449 U.S. at 36, 101 S.Ct. at 190. In the case before us, Delano and Bloom have failed to establish that they lack all other adequate means to relief and that they have a clear and indisputable right to issuance" }, { "docid": "23688268", "title": "", "text": "when required to do so by the recusal statute. See In re Corrugated Container Antitrust Litig., 614 F.2d 958, 961 n. 4 (5th Cir.1980) (“We do not deny our authority to review on mandamus the question of disqualification. Courts not infrequently reach the merits of disqualification issues on a consideration of whether mandamus will issue.”); Davis v. Bd. of Sch. Comm’rs, 517 F.2d 1044, 1051 (5th Cir.1975) (“[Section 455] may ... be asserted by a party ... by mandamus.”) (citations omitted). Mandamus is a drastic remedy “to be invoked only in extraordinary situations.... Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34-35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980). “The Supreme Court has repeatedly stated ... that issuance of a writ of mandamus lies in large part within the discretion of the court.” United States v. Denson, 603 F.2d 1143, 1146 (5th Cir.1979). Because, as a general rule, “appellate review should be postponed ... until after final judgment ...,” Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967), “the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires.... ” Kerr v. United States Dist. Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976). Petitioners have the burden of showing that their “right to the issuance of the writ is ‘clear and indisputable.’ ” Will v. United States, 389 U.S. at 96, 88 S.Ct. at 274 (quoting Bankers Life and Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953)). “The writ of mandamus is an order directing a public official ... to perform a duty exacted by law,” United States v. Denson, 603 F.2d at 1146, and “will not issue to correct a duty that is to any degree debatable.... ” Id. at 1147 n. 2. In this case, petitioners have met their burden of showing a clear and indisputable right to relief. They" } ]

[ { "docid": "23584986", "title": "", "text": "a collective action under the ADEA, in the Western District of Pennsylvania (the “Mueller-Bellas action”). The ADEA incorporates the collective action provisions of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). See 29 U.S.C. § 626(b) (incorporating § 216(b)). Unlike class actions governed by Rule 23 of the Federal Rules of Civil Procedure, in which potential class members may “opt out,” collective actions under the FLSA require potential class members to notify the court of their desire to “opt in” to the action. See 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”). On March 14, 2001, the district court conditionally certified two sub-classes of plaintiffs in the Mueller-Bellas action. (See App. at 191-92.) Ruehl opted in to both subclasses on March 28, 2001. Viacom moved for decertification of the subclasses on May 13, 2002 arguing, among other things, that neither group of plaintiffs was “similarly situated” (as required for a collective action under the FLSA or ADEA) “because they have disparate factual and employment settings, there are substantial conflicts among members of each subclass, and there are numerous individualized defenses to their claims.” (App. at 193.) On December 9, 2002, the district court granted Viacom’s motion, de-certified both subclasses, and dismissed the action in its entirety. On March 20, 2003, the opt-in plaintiffs, including Ruehl, were notified of the decertification. Nearly six months later, on October 14, 2003, Ruehl filed his first, independent charge of age discrimination with the EEOC. About four months later, on January 20, 2004, he commenced this action under the ADEA in the Western District of Pennsylvania. On August 12, 2004, after limited discovery on whether Ruehl’s waiver of ADEA claims was valid, Viacom filed a motion for summary judgment, arguing that Ruehl’s EEOC charge and his district court complaint were both untimely. On November 18, 2004, the Court denied the motion, holding that despite the facial untimeliness of Ruehl’s EEOC" } ]

[ { "docid": "3343751", "title": "", "text": "other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). Leona’s does not challenge McClain’s assertion that his state-law claims satisfy the requirement of Rule 23(a) and the first requirement of Rule 23(b)(3)-predomi-nance of common questions over individual issues. The only question before the Court is whether class certification of McClain’s state-law claims is superior to other available means. McClain asserts that certification is proper because consolidation of a collective action and class action in this case would promote judicial economy and prevent “unfair prejudice” to prospective class members. (R. 16, Pl.’s Reply at 2-5, 8.) Leona’s argues that class certification is not superior because it would circumvent the FLSA’s express requirement that these types of claims must be brought as collective actions in federal court. (R. 15, Defs.’ Resp. at 1.) Class certification under Rule 23 creates an opt-out class requiring parties to file a consent if they do not want to join the action. Vanskike v. Peters, 974 F.2d 806, 812-13 (7th Cir.1992). While class actions are provided for under the FLSA, “they are governed by 29 U.S.C. § 216(b) rather than by Federal Rule of Civil Procedure 23.” Id. Section 216(b) of the FLSA establishes an opt-in system for collective actions, mandating that “[n]o employee shall be a party plaintiff to any such action [under the FLSA] unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 29 U.S.C. § 216(b). “[M]andating an opt-in class or an opt-out class is a crucial policy decision.” De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 310 (3d Cir.2003). Congress created the opt-in procedure “for the purpose of limiting private FLSA plaintiffs to employees who asserted claims in their own right and freeing employers from the burden of representative actions.” Hoffmann-La, Roche, Inc. v. Sperling, 493 U.S. 165, 173, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). The FLSA’s opt-in provision directly contrasts with Rule 23’s opt-out scheme and demonstrates Congress’s intent to ensure that parties with wage and hour claims" }, { "docid": "17690473", "title": "", "text": "hourly basis within the last three years; (2) an order approving the proposed Notice and Consent forms; (3) an order barring Lifeway from communicating with putative collective action plaintiffs and precluding Lifeway from securing releases or waivers of FLSA rights; and (4) any other relief this Court deems appropriate. This motion is fully briefed and ready for ruling. III.LEGAL STANDARDS Section 216(b) of the FLSA allows individuals to become parties to a collective action under the FLSA by filing consents with the court. The relevant text of that statute provides: An action to recover the liability prescribed in [sections 206, 207 or 215(a)(3) of title 29] may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. 29 U.S.C. § 216(b) (2003). Section 216(b)’s method of requiring an individual to file a consent to join in a collective action under the FLSA has been referred to as an “opt-in” requirement. The Seventh Circuit has indicated that the “opt-in” requirement of § 216(b) preempts the class action procedure under Federal Rule of Civil Procedure 23. See King v. General Elec. Co., 960 F.2d 617, 621 (7th Cir.1992) (citing LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir.1975)). Thus, a § 216(b) collective action is not a Rule 23 class action. The difference between a Rule 23 class action and a § 216(b) collective action is that “in the latter the class member must opt in to be bound, while in the former he must opt out not to be bound.” Woods v. New York Life Ins. Co., 686 F.2d 578, 580 (7th Cir.1982). This difference has an effect on the requirement of notice that must be given to a putative class, based on due process considerations." }, { "docid": "19766304", "title": "", "text": "AWPA claims are derived from alleged FLSA violations and must therefore be brought in a collective action. Section 216(b) of the FLSA provides that “[n]o employee shall be a party plaintiff to any action [for unpaid wages] unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Thus, in an FLSA action, a party-plaintiff must opt into an action, whereas in a Rule 23(b)(3) class action, all qualifying class members become party-plaintiffs unless they opt out of the action. See Rule 23(c)(2)(B) (explaining that “the court will exclude from the class any member who requests exclusion”). The Appellants contend this distinction is crucial because only 35 of 1,800 potential FLSA collective action plaintiffs opted into the action. The Appellants claim that if we allow the AWPA claims to proceed as a Rule 23(b)(3) class action, the class could potentially consist of 6,000 plus workers. We must first examine whether the workers’ AWPA claims are truly FLSA claims in disguise, as the Appellants allege. The FLSA creates a private right of action for aggrieved employees to recover unpaid minimum wages and unpaid overtime wages. 29 U.S.C. § 216(b). A review of Count I of the Complaint shows that the workers asserted six AWPA claims, of which only two seek unpaid wages. Those claims assert that the Appellants violated the AWPA by (1) failing to pay them the proper prevailing wage rate and overtime wages for all work performed and (2) failing to reimburse them for expenses they incurred which were primarily for Eller & Sons’ benefit, including travel and visa processing expenses. The workers separately pled FLSA claims under Count II of the Complaint. Those claims assert that the Appellants violated the FLSA by failing to pay them the .applicable minimum wage rate of $5.15/hour and overtimes wages for all hours worked. Although both the AWPA claims and FLSA claims seek unpaid wages, they are not identical. The workers are entitled to recover the prevailing wage rate under the AWPA and only the minimum wage" }, { "docid": "3343752", "title": "", "text": "under the FLSA, “they are governed by 29 U.S.C. § 216(b) rather than by Federal Rule of Civil Procedure 23.” Id. Section 216(b) of the FLSA establishes an opt-in system for collective actions, mandating that “[n]o employee shall be a party plaintiff to any such action [under the FLSA] unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 29 U.S.C. § 216(b). “[M]andating an opt-in class or an opt-out class is a crucial policy decision.” De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 310 (3d Cir.2003). Congress created the opt-in procedure “for the purpose of limiting private FLSA plaintiffs to employees who asserted claims in their own right and freeing employers from the burden of representative actions.” Hoffmann-La, Roche, Inc. v. Sperling, 493 U.S. 165, 173, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). The FLSA’s opt-in provision directly contrasts with Rule 23’s opt-out scheme and demonstrates Congress’s intent to ensure that parties with wage and hour claims under the FLSA take affirmative steps to become members of a class seeking redress of those claims in federal court. 29 U.S.C. § 216(b). We find that allowing McClain to use supplemental state-law claims to certify an opt-out class in federal court would undermine Congress’s intent to limit these types of claims to collective actions. McClain cannot circumvent the opt-in requirement and bring unnamed parties into federal court by calling upon state statutes similar in substance to the FLSA that lack the opt-in requirement. Rodriguez, 2001 WL 1829490, at *2. Were we to certify a class action for McClain’s supplemental state claims based on the same facts and issues underlying McClain’s federal claim, we could very well be left “with the rather incongruous situation of an FLSA ‘class’ including only a tiny number of employees ... with a state-law class that nonetheless includes all or nearly all of the companies’ present or former employees.” Muecke, 2002 WL 1359411, at *2. To do so would effectively “allow[] a federal tail to wag what is in substance" }, { "docid": "4284293", "title": "", "text": "Tyson’s argument focuses on the differences between the “opt-out” procedure under Rule 23 and the “opt-in” procedure under § 216(b). This argument, like Tyson’s preemption argument, is particularly popular among district court dockets right now. See, e.g., Woodard, at 183-90, 2008 WL 471552, at *6-12. No clear or consistent resolution appears imminent, however, and like the question of preemption, there is no controlling authority for the court to rely on. Despite their confusing semantic similarities, the differences between class actions and collective actions are great. See Lugo v. Farmer’s Pride Inc., 2008 WL 638237, at *2 (E.D.Pa. March 7, 2008) (“Class actions and collective actions can often be confused with each other.”); Salazar, 527 F.Supp.2d at 877 (“At the outset, it is crucial to note the distinction between a FLSA collective action and a Rule 23 class action. The distinction is sometimes blurred.”). See generally Wright, Miller, & Kane, Federal Practice and Procedure § 1807 at 468-77 (2005 & Supp.2007) [hereinafter Wright] (stating the differ-enees between Rule 23 class actions and FLSA collective actions). Plaintiffs in class actions certified under Rule 23 are generally a member of the class unless they opt-out. See In re Piper Funds, Inc., 71 F.3d 298, 303-04 (8th Cir.1995) (recognizing plaintiffs have a right to opt out of a Rule 23 class action). Under § 216(b), plaintiffs must opt-in to become a member of the collective action. 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”). There is no doubt that the opt-in/opt-out distinction represents “a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by [the] FLSA.” Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th Cir. 1975); see Woodard, at 187, 2008 WL 471552, at *9 (“Rule 23 is the antithesis of § 216(b).”). Because of this difference many courts have held that Rule 23 class actions may not be maintained in the same" }, { "docid": "11887744", "title": "", "text": "According to Plaintiffs, Defendant improperly classifies its pharmaceutical representatives as exempt from the FLSA’s overtime requirements; Plaintiffs allege that such positions are not exempt and that they are thus entitled to thousands of dollars in overtime pay. (Id. ¶¶ 1, 23-28.) Plaintiffs move for conditional class certification and Court-authorized notice to potential class members pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b). (R. 54, Pl.’s Mot. for Conditional Class Cert.) Plaintiffs seek to send notice to 4,708 individuals who are working or have worked as pharmaceutical representatives and were subject to Defendant’s “company-wide policy or plan that it would not pay overtime to pharmaceutical representatives.” (Id. at ¶¶ 2, 5.) ANALYSIS The FLSA provides: “[N]o employer shall employ any of his employees who in any workweek is engaged in commerce ... for a workweek longer' than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). Section 16(b) of the FLSA allows for a collective action “against any employer ... by any one or more employees for and on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Collective actions under the FLSA are different than class actions authorized by Federal Rule of Civil Procedure 23, because in FLSA cases the plaintiff is given notice and an opportunity to opt in, rather than notice and an opportunity to opt out. 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”); Woods v. N.Y. Life Ins. Co., 686 F.2d 578, 579-80 (7th Cir.1982) (explaining differences between collective action under FLSA and class action certified pursuant to Rule 23). Potential class members who choose not to opt in are not bound by the Court’s decision. Vanskike v. Peters, 974 F.2d 806, 812-13 (7th Cir.1992);" }, { "docid": "19292514", "title": "", "text": "method and claims the required tasks of donning, doffing, and cleaning his equipment took approximately 31 minutes per day to perform. Reyes worked at the Plant from September 19, 1999 until August 18, 2008. Filing No. 21-4 (Reyes declaration), at CM/ECF pp. 5-6; 29-2, Ex. 1 (Heller-Glen declaration), ¶ 22, at CM/ECF p. 7. LEGAL ANALYSIS The named plaintiffs seek conditional certification pursuant to 29 U.S.C. § 216(b). Filing No. 19, at CM/ECF p. 1. Section 216(b) provides: An action to recovery the liability prescribed [under the FLSA] may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. 29 U.S.C. § 216(b). Unlike Rule 23 of the Federal Rules of Civil Procedure, which requires class members to either “opt out” of the class action lawsuit or be bound by the outcome, a class member under § 216(b) must “opt in” to be bound. There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA § 16(b). In a Rule 23 proceeding a class is described; if the action is maintainable as a class action, each person within the description is considered to be a class member and, as such, is bound by judgment, whether favorable or unfavorable, unless he has “opted out” of the suit. Under § 16(b) of FLSA, on the other hand, no person can become a party plaintiff and no person will be bound by or may benefit from judgment unless he has affirmatively “opted into” the class; that is, given his written, filed consent. Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th Cir.1975). Since employees must opt into a class seeking FLSA recovery, FLSA class action proceedings are often called collective actions. The FLSA collective-action mechanism is a two-step process. Morales v." }, { "docid": "20404327", "title": "", "text": "FLSA The FLSA provides its own right and mechanism for collective certification distinct from Rule 23. Compare 29 U.S.C. § 216 with Fed.R.Civ.P. 23. Under the FLSA: [a]n action to recover the liability ... may be maintained against any employer ... in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. 29 U.S.C. § 216(b). The central difference between collective certification under the FLSA and under Rule 23 is the FLSA’s requirement that those interested in joining the putative class opt in, while Rule 23 certification requires the uninterested to opt out. Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1249 (11th Cir.2003) (explaining that “§ 216(b) is a fundamentally different creature than the Rule 23 class action”); Grayson v. K Mart Corp., 79 F.3d 1086, 1096 n. 12 (11th Cir.1996) (“[I]t is clear that the requirements for pursuing a § 216(b) class action are independent of, and unrelated to, the requirements for class action under Rule 23 of the Federal Rules of Civil Procedure”); LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir.1975) (noting that the “fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA § 16(b)” is that under the FLSA “no person can become a party plaintiff and no person will be bound by or may benefit from judgment unless he has affirmatively ‘opted into’ the class”). The statute outlines the general framework: those wishing to enter the suit must give and file written consent; the court then certifies that those seeking to join the class are “similarly situated.” 29 U.S.C. § 216(b). Moreover, “[although the FLSA does not provide for court-ordered notice of a pending collective action, the Supreme Court has held that ‘district courts have discretion ... to implement 29" }, { "docid": "18153544", "title": "", "text": "Standards Act of 1938 (“FLSA”), 29 U.S.C. section 207, California Labor Code sections 201, 202, 204, 510, and 1198, and California Business and Professions Code sections 17200 et seq. On April 6, 2005, the district court granted Defendant’s motion to transfer venue to this Court. On February 17, 2006, Plaintiffs moved to certify two classes: an opt-in collective action under FLSA, 29 U.S.C. section 216(b), and an opt-out class action under Rule 23(b)(3) of the Federal Rules of Civil Procedure. Plaintiffs submitted declarations supporting class certification as well as a document that they proposed the Court order distributed to class members to give them notice of the actions. On March 10, 2006, Defendant filed its Opposition to both classes, along with supporting declarations. On March 25, Plaintiffs filed their Reply, along with a supplemental declaration and objections to Defendant’s declarations. III. Opt-in Action under FLSA Plaintiffs ask the Court to certify an opt-in collective action under the Fair Labor Standards Act of 1938 (“FLSA”). The proposed class is: All persons who are or were employed by Producers Dairy as RSDs and equivalent delivery positions who worked in excess of forty (40) hours in a work week in the State of California at any time from January 19, 2002 to the present and who were not paid overtime compensation for those excess hours. Mot. 12:22-25. A. Legal Standard The FLSA establishes a cause of action by an employee against an employer who fails to pay overtime wages. See 29 U.S.C. § 207. Under 29 U.S.C. section 216(b) (“Section 216(b)”), an employee who files such a suit under FLSA may bring a collective action on behalf of “employees similarly situated.” Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir.2000). Each employee who wishes to join the action must opt in to the suit- by filing a consent to sue with the district court. Id. The district court has discretion to determine whether a collective action is appropriate. Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D.Cal.2004). A court must decide whether the proposed lead plaintiffs and" }, { "docid": "1626324", "title": "", "text": "labor laws through the misclassification of the Plaintiffs as independent contractors. Plaintiffs allege that the stores to which they were assigned routinely set their schedules, managed their pay, and supervised their work. Plaintiffs allege that they lack specialized skills, education and training, and that they provided no resources or capital investment to the enterprises to which they had been assigned. Their work, they allege, was performed on-site, at Defendants’ stores, and they should have been considered employees of such stores. The Fair Labor Standards Act, 29 U.S.C. § 216(b), provides that “[n]o employee shall be a party plaintiff to [an action brought under the FLSA] unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” This opt-in requirement thus restricts the right of recovery under the federal law to those who affirmatively file consents to participate in the suit. At the time of argument, approximately 350 Plaintiffs had filed consents. The federal action thus is a collective action under Section 216(b) of the FLSA, not a class action brought under Rule 23, Fed.R.Civ.P. There is no opt-in requirement, analogous to the procedure authorized by the FLSA, under the New York Minimum Wage Act, N.Y. Lab. L. § 650 et seq. Accordingly, Plaintiffs seek class certification under Rule 23 with respect to their state law Minimum Wage Act claims. The class they propose would include those persons who were assigned by the Defendant labor agents to the Defendant supermarket and drugstore chains, who worked for such chains as delivery persons and/or dispatchers after January 13, 1994, and who were not paid minimum wages or overtime premium pay, or spread-of-hours compensation, from Defendants in violation of the New York Minimum Wage Act. Plaintiffs’ motion for class certification was filed August 31, 2000. By stipulation and order filed September 18, 2000, I adjourned the opposition and reply deadlines to allow the parties to conduct discovery relevant to class certification. Following such discovery, opposition and reply briefs were filed, and the New York State Attorney General submitted an" }, { "docid": "22962396", "title": "", "text": "lead plaintiffs, because they will not have any claims grounded in the actionable conduct. They have nothing left to litigate in O’Brien, as all of their claims in O’Brien are moot or will be claim-precluded. IV. The O’Brien suit Therefore, only the two lead O’Brien plaintiffs and Stevie LeVan are now parties to the appeal from the O’Brien district court’s decertification order. After we discuss why the district court’s application of the “similarly situated” language from the FLSA was partly in error, we explain why the district court’s decertification of the collective action will be affirmed. We then discuss the district court’s evidentiary and summary-judgment rulings concerning the two lead O’Brien plaintiffs. A. Decertification The Fair Labor Standards Act provides a private cause of action against an employer “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b) (emphasis added). Unlike class actions under Fed.R.Civ.P. 23, collective actions under FLSA require putative class members to opt into the class. See 29 U.S.C. § 216(b) (“No employee shall be a. party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”). These opt-in employees are party plaintiffs, unlike absent class members in a Rule 23 class action. See 7B Wright, Miller, & Kane, Federal Practice and Procedure § 1807 at 474 n. 13 (3d ed.2005). The district court followed a two-stage certification process, as many courts do, to determine whether the opt-in plaintiffs and lead plaintiffs were similarly situated. See id. § 1807 at 487 n. 48. After the initial conditional certification of the class, the parties entered into discovery. At the second stage, the district court reviewed the evidence produced during discovery and decertified the class for two main reasons. First, the district court stated that each claim presented by each plaintiff would require an extensive individualized analysis to determine whether a FLSA violation had occurred, frustrating the “collective consideration of common questions of fact and" }, { "docid": "19766303", "title": "", "text": "STANDARD OF REVIEW “Questions concerning class certification are left to the sound discretion of the district court.” Cooper v. Southern Co., 390 F.3d 695, 711 (11th Cir.2004). Accordingly, we review a district court’s class certification order for abuse of discretion. Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d 1330, 1337 (11th Cir.2006). III. DISCUSSION On appeal, the Appellants argue the district court abused its discretion in granting class certification. The Appellants claim this action is based on the FLSA and must therefore be adjudicated as an opt-in collective action under 29 U.S.C. § 216(b) instead of an opt-out Rule 23(b)(3) class action. Alternatively, the Appellants argue that even if a Rule 23 class action is not precluded by 29 U.S.C. § 216(b), the district court abused its discretion in certifying the class because the workers failed to prove the necessary prerequisites under Rule 23. We address the Appellants’ arguments in Sections A. and B., respectively. A. Impact of 29 U.S.C. § 216(b) The Appellants maintain that the bulk of the purported AWPA claims are derived from alleged FLSA violations and must therefore be brought in a collective action. Section 216(b) of the FLSA provides that “[n]o employee shall be a party plaintiff to any action [for unpaid wages] unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Thus, in an FLSA action, a party-plaintiff must opt into an action, whereas in a Rule 23(b)(3) class action, all qualifying class members become party-plaintiffs unless they opt out of the action. See Rule 23(c)(2)(B) (explaining that “the court will exclude from the class any member who requests exclusion”). The Appellants contend this distinction is crucial because only 35 of 1,800 potential FLSA collective action plaintiffs opted into the action. The Appellants claim that if we allow the AWPA claims to proceed as a Rule 23(b)(3) class action, the class could potentially consist of 6,000 plus workers. We must first examine whether the workers’ AWPA claims are truly FLSA claims in disguise," }, { "docid": "14315697", "title": "", "text": "to take with him or her at the conclusion of any such contact with Defendant or its counsel. Simply put, if Defendant or its lawyers wish to interview a prospective class member about this case, they cannot do so unless and until they have obtained a signed, dated disclosure statement from that individual in a form jointly agreed upon by the parties and consistent with the foregoing. III. Legal Framework for Conditional Class Certification. Pursuant to Section 216(b) of the FLSA, an action to recover unpaid minimum wage or overtime compensation “may be maintained against any employer ... in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b) (emphasis added). In contrast to the traditional Rule 23 framework in which similarly situated persons’ interests may be litigated without their formal consent, the FLSA features an opt-in mechanism for similarly situated employees. See id. (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought”) (emphasis added). The Eleventh Circuit has repeatedly recognized this distinction. See Anderson v. Cagle’s, Inc., 488 F.3d 945, 950 n. 3 (11th Cir.2007) (“Unlike class actions governed by Rule 23 ..., FLSA collective actions require potential class members to notify the court of their desire to opt in to the action.”); De Leon-Granados v. Eller and Sons Trees, Inc., 497 F.3d 1214, 1219 (11th Cir.2007) (“in an FLSA action, a party plaintiff must opt into an action, whereas in a Rule 23(b)(3) class action, all qualifying class members become party-plaintiffs unless they opt out”). Plaintiffs now seek permission to conduct this action as an opt-in collective action under § 216(b), with prospective opt-in plaintiffs being given notice and an opportunity to join these proceedings. It is for that purpose that Plaintiffs request class certification status. Both the conditional certification of an FLSA class and the issuance of court-supervised" }, { "docid": "4284294", "title": "", "text": "in class actions certified under Rule 23 are generally a member of the class unless they opt-out. See In re Piper Funds, Inc., 71 F.3d 298, 303-04 (8th Cir.1995) (recognizing plaintiffs have a right to opt out of a Rule 23 class action). Under § 216(b), plaintiffs must opt-in to become a member of the collective action. 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”). There is no doubt that the opt-in/opt-out distinction represents “a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by [the] FLSA.” Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th Cir. 1975); see Woodard, at 187, 2008 WL 471552, at *9 (“Rule 23 is the antithesis of § 216(b).”). Because of this difference many courts have held that Rule 23 class actions may not be maintained in the same action as a FLSA collective action. See Burkhart-Deal v. Citifinancial, Inc., 2008 WL 2357735, at *1-2 (W.D.Pa. June 5, 2008) (concluding “the inherent incompatibility Plaintiffs FLSA claims and state law class claims, in this particular case, require dismissal of the state law class claims”); Woodard, at 188, 2008 WL 471552, at *12 (dismissing Plaintiffs’ Rule 23 class allegations because “the Court finds that simultaneous prosecution of Mr. Woodard’s FLSA collective action and [Pennsylvania Minimum Wage Act claim] class action will frustrate the congressional intent and circumvent § 216(b)’s opt-in requirement”); Ellis, 527 F.Supp.2d at 452 (dismissing plaintiffs’ parallel state law claims because “the policies that underlie the FLSA” would be “totally] negat[ed] ... if the Court were to allow Plaintiffs to pursue state law overtime remedies under Rule 23 and FLSA opt-in remedies in the same action”). Still many other courts, however, have allowed both class and collective actions to proceed. See Osby, 2008 WL 2074102, at *3 (“District court cases permitting FLSA collective actions to proceed simultaneously with Rule 23 state actions are legion.”);" }, { "docid": "3336985", "title": "", "text": "the court will grant the motion in part and conditionally certify a collective action for plaintiffs FLSA claim. The court will otherwise deny the motion' without prejudice to plaintiff refiling a Rule 23 motion for class certification on plaintiffs state law claims at a later date. I. Class Certiftcation of Plaintiff’s FLSA Claim A. Legal Standard for Certification Plaintiff moves for class certification pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. A class certified under Rule 23(b)(3) includes all class members who do not opt out of the class. See Fed.R.Civ.P. 23(c)(3) (providing that a judgment in a Rule 23(b)(3) class action applies to all class members to whom notice was directed and who did not request exclusion from the class). In sharp contrast, plaintiffs FLSA claim is governed by FLSA § 16(b), which provides that an FLSA class only includes members who opt in to the class. See 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any [§ 216(b)] action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”). Because of the “fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA § 16(b) ... [i]t is crystal clear that § 16(b) precludes pure Rule 23 class actions in FLSA suits.” LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir.1975) (per curiam). For this reason, the Courts of Appeals have uniformly recognized that the appropriate procedural vehicle for certifying a class on an FLSA claim is the opt-in mechanism of FLSA § 16(b), not Rule 23. See, e.g., Prick-ett v. DeKalb County, 349 F.3d 1294, 1296 (11th Cir.2003) (per curiam) (explaining that “FLSA plaintiffs may not certify a class under Rule 23” because of the opt-in requirement of FLSA § 16(b)), cert, denied, — U.S. -, 124 S.Ct. 2873, 159 L.Ed.2d 776 (2004); King v. Gen. Elec. Co., 960 F.2d 617, 621 (7th Cir.1992) (stating, in a case under the Age Discrimination in Employment Act (ADEA), 29" }, { "docid": "2454223", "title": "", "text": "24, at 15 (citing Carver v. Velocity Express Corp., No. 1:07cv407, 2008 WL 1766629 *1 (W.D.N.C. Apr. 14, 2008)); Beltran-Benitez v. Sea Safari, Ltd,., 180 F.Supp.2d 772, 774 (E.D.N.C.2001); Westfall v. Kendle Intern., CPU, LLC, No. 1:05-cv-00118, 2007 WL 486606 (N.D.W.Va.2007)). In response to Defendants’ Rules Enabling Act argument, Plaintiffs maintain that FLSA’s collective action opt-in procedure confers procedural and not substantive rights and thus is not implicated. A. Compatibility of Fed.R.CivJP. 23 and 29 U.S.C. § 216(b) Pursuant to 29 U.S.C. § 216(b), collective actions are permitted under FLSA. Plaintiffs may invoke § 216(b) to raise FLSA claims on behalf of similarly situated employees, but unnamed plaintiffs must affirmatively opt-in using a court approved form in order to join the case. Id. (“no employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in court in which such action is brought”); see also Hoffmann-LaRoche v. Sperling, 493 U.S. 165, 173, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). Congress added the opt-in requirement for collective actions under FLSA in the Portal-to-Portal Act of 1947, “in part responding to excessive litigation spawned by plaintiffs lacking a personal interest in the outcome,” Hoffmann-La Roche, 493 U.S. at 173, 110 S.Ct. 482, and to free employers of the burdens of representative actions. Id. In contrast, in class actions pursuant to Fed.R.Civ.P. 23(b)(3), plaintiffs must affirmatively opt-out in order to be excluded from the class and not bound by the court’s decisions. Defendants argue that because of this difference allowing class actions to proceed simultaneously with § 216(b) collective actions would nullify Congress’ intent and create an irreconcilable conflict. (ECF No. 19-1, at 23-24). Defendants explain: “individuals who affirmatively choose not to opt in to the FLSA action will nevertheless be included in a Rule 23 action that will adjudicate factual and legal issues relevant to (and dispositive of) the unasserted FLSA claims.” (ECF No. 25, at 17). Additionally, Defendants argue that the “conflict obstructs the protections of § 216(b) and, consequently, serves to preempt a Rule" }, { "docid": "15899787", "title": "", "text": "outset, it is crucial to note the distinction between a FLSA collective action and a Rule 23 class action. The distinction is sometimes blurred. “The Federal Rules of Civil Procedure, including Rule 23 authorizing class actions, apply in all civil actions except when Congress has decided otherwise.” 5 Moore’s Federal Practice § 23.04 (3d ed.2007) [hereinafter “Moore’s ”] (citing Fed.R.Civ.P. 1 and Califano v. Yamasaki, 442 U.S. 682, 700, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). Under Rule 23, class members are bound by the lawsuit’s results “unless they have opted out of the action.” Id.; see also Fed. R.Civ.P. 23(c)(2)(B) (explaining that the notice to class members must include the fact “that the court will exclude from the class any member who requests exclusion” and “the binding effect of a class judgment on class members under Rule 23(c)(3)”). “Class actions may not be maintained under Rule 23, however, when Rule 23’s procedures are inconsistent with the substantive statute under which the action is brought or when the substantive statute provides an alternative means for obtaining class or group relief.” Moore’s, § 23.04 (footnote omitted). Section 216(b) of the FLSA is one of the statutes which sets out an “alternative means” for collective actions. Id. Congress expressly limited FLSA collective actions by requiring plaintiffs affirmatively to opt in to the claim. It provides, in part: “No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 29 U.S.C. § 216(b). Therefore, “Rule 23 is inapplicable to proceedings under the FLSA.” Moore’s, § 23.04. A collective action under the FLSA is not a traditional “class” action. The Eighth Circuit Court of Appeals determined that Rule 23 is irreconcilable with § 216(b). Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th Cir.1975). The Eighth Circuit Court of Appeals stated, in part: “There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by [§ 216(b) ]. In a" }, { "docid": "4232166", "title": "", "text": "the parties' agreement received no judicial approval, the extent to which the employee retains the right to recover any '‘compromised” wages or liquidated damages is uncertain; the Supreme Court prohibits an employee's release of his FLSA rights without approval by the Department of Labor or the district court. In the words of Judge Edmondson, who wrote the panel opinion, Sahyers \"is intensely fact specific [and] ... creates no procedural rule. The panel created no procedural rule requiring pre-suit notice in FLSA cases: even notices from suing layers to lawyers to be sued in their individual capacity.” Sahyers, 603 F.3d 888 (11th Cir.2010) (Edmondson, J., concurring in denial of en banc rehearing). . The FLSA permits an employee to sue for unpaid wages “for and in behalf of himself ... and other employees similarly situated.” 29 U.S.C. § 216(b). However, \"[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 29 U.S.C. § 216(b). This \"opt-in” requirement distinguishes an FLSA \"collective action” from the “opt-out” class action procedure provided by Rule 23, Federal Rules of Civil Procedure. Because the FLSA requires a plaintiff to \"opt in,” FLSA plaintiffs may not proceed as a class under Rule 23. Prickett v. DeKalb County, 349 F.3d 1294, 1296 (11th Cir.2003). . A district court employs a \"two-tiered approach\" to decide whether to certify a collective action under the FLSA: The first determination is made at the so-called ‘notice stage.' At the notice stage, the district court makes a decision — usually based only on the pleadings and any affidavits which have been submitted — whether notice of the action should be given to potential class members. Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in 'conditional certification' of a representative class. If the district court 'conditionally certifies’ the class, putative class members are given notice and the opportunity to 'opt-in.' The action proceeds as a representative action" }, { "docid": "21024834", "title": "", "text": "contractors under the law. Thus, the facts, claims, and legal arguments that will be made are the same for all of the proposed class members. The Defendant, on the other, hand, opposes conditional certification of the class. It argues that the Plaintiff and proposed class members are not similarly situated because some entertainers may have arbitration clauses in their contracts and because the complex inquiry into whether an entertainer is an employee or an independent contractor requires too much inquiry into the individual circumstances of each entertainer. Additionally, the Defendant’s assertion of counterclaims against .the Plaintiff-alone makes this case unsuitable for a collective action. Should the Court conditionally certify a class, the parties also dispute the content of the Proposed Notice. Ill A Plaintiff may bring a collective action on behalf of themselves and other “similarly situated” alleged “employees” against employers who violate the FLSA’s minimum wage or overtime provisions. 29 U.S.C. § 216(b). Collective actions, under the FLSA are different than class actions authorized by Federal Rule of Civil Procedure 23, because in FLSA cases the plaintiff is given notice and an opportunity to opt in, rather than notice and an opportunity. to opt out. 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”); Woods v. N.Y. Life Ins Co, 686 F.2d 578, 579-80 (7th Cir.1982) (explaining differences between collective action under FLSA and class action certified pursuant to Rule 28). Potential class members who choose not to opt in are not bound by the Court’s decision. Jirak v. Abbott Laboratories, Inc., 566 F.Supp.2d 845, 847 (N.D.Ill.2008), citing Vanskike v. Peters, 974 F.2d 806, 812-13 (7th Cir.1992); Woods, 686 F.2d at 580. . [2] ' The FLSA does not, however, detail the specific procedures a court should employ when granting collective action notices. See Smallwood v. Illinois Bell Co., 710 F.Supp.2d 746, 750 (N.D.I11.2010), citing Hoffmann-La Roche, Inc v. Sperling, 493 U.S. 165, 170-174, 110 S.Ct. 482," }, { "docid": "2454222", "title": "", "text": "Action Pursuant to Fed.R.Civ.P. 23 Defendants next argue that FLSA’s collective action provision, 29 U.S.C. § 216(b), precludes Plaintiffs from raising their state law claims in a class action pursuant to Fed.R.Civ.P. 23. (ECF No. 19, at 29). Defendants argue that the opt-out nature of a Rule 23 class action irreconcilably conflicts with the opt-in requirement for FLSA collective actions and that permitting both causes of action to proceed simultaneously would run directly counter to Congress’ intent in enacting § 216(b). (Id. at 29-33). Defendants further contend that permitting Plaintiffs to proceed with their state law class action claims would violate the Rules Enabling Act, 28 U.S.C. § 2072(b), because the application of Fed. R.Civ.P. 23 in these circumstances would have the effect of “abridging, enlarging, or modifying a substantive right.” (Id. at 33). Plaintiffs argue in response that their Rule 23 class action counts are not incompatible with a collective action under FLSA and cite a number of district court opinions from this circuit allowing both types of claims to proceed simultaneously. (ECF No. 24, at 15 (citing Carver v. Velocity Express Corp., No. 1:07cv407, 2008 WL 1766629 *1 (W.D.N.C. Apr. 14, 2008)); Beltran-Benitez v. Sea Safari, Ltd,., 180 F.Supp.2d 772, 774 (E.D.N.C.2001); Westfall v. Kendle Intern., CPU, LLC, No. 1:05-cv-00118, 2007 WL 486606 (N.D.W.Va.2007)). In response to Defendants’ Rules Enabling Act argument, Plaintiffs maintain that FLSA’s collective action opt-in procedure confers procedural and not substantive rights and thus is not implicated. A. Compatibility of Fed.R.CivJP. 23 and 29 U.S.C. § 216(b) Pursuant to 29 U.S.C. § 216(b), collective actions are permitted under FLSA. Plaintiffs may invoke § 216(b) to raise FLSA claims on behalf of similarly situated employees, but unnamed plaintiffs must affirmatively opt-in using a court approved form in order to join the case. Id. (“no employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in court in which such action is brought”); see also Hoffmann-LaRoche v. Sperling, 493 U.S. 165, 173, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)." } ]

[ { "docid": "17011037", "title": "", "text": "Union Pacific was a full satisfaction against one of two joint tort-feasors, and that the satisfaction thus precluded the appellant from seeking further relief against the other tort-feasor. Accordingly, summary judgment for ap-pellee was granted. The appellant urges two points: First, he claims that the satisfaction of judgment in his suit against Union Pacific was only a partial satisfaction, and that a plaintiff who only partially satisfies a judgment against one joint tort-feasor is not barred from bringing suit against the other. Secondly, he claims that the court below committed reversible error by failing to treat appellee’s motion as one for summary judgment, but considered it rather as a motion to dismiss for failure to state a claim upon which relief could be granted. Taking appellant’s second point first, he places great reliance upon the decision of this court in Mantin v. Broadcast Music, Inc., 9 Cir.1957, 248 F.2d 530. The district court in that case had granted a defendant’s motion to dismiss for failure to state a claim. In dismissing, the court specifically noted that it had acted under Rule 12(b) (6) of the Federal Rules of Civil Procedure. There, as here, the defendant had introduced material not contained in the complaint, and on appeal this court held that where such extraneous matter was utilized by a defendant on a motion to dismiss for failure to state a claim upon which relief could be granted, Rule 12(b) required that the motion be treated as one for summary judgment. Since, in the Mantin case, the court below did not treat the defendant’s motion to dismiss as one for summary judgment, the dismissal was reversed. We have no difficulty with this question in the instant case. The court below noted that appellee’s motion was to be treated as a motion for summary judgment; it granted the motion as such; and the judgment was recorded as a summary judgment. Nothing appears in the record which in any way challenges this conclusion. Appellant concedes that if the satisfaction of judgment against Union Pacific Railroad is a full satisfaction, he is precluded from seeking" } ]

[ { "docid": "22860544", "title": "", "text": "partners are not employees under the Anti-discrimination Acts. We also hold that Wheeler, as an acknowledged general partner of Main Hurdman, was not covered by the Acts and that the district court erred in its ruling that she was. The decision of the district court is REVERSED and the case REMANDED to the district court with instructions to enter judgment in favor of Main Hurdman, dismissing the complaint. . For convenience these statutes are sometimes collectively referred to herein as the Acts or the Antidiscrimination Acts, laws, or statutes. . On appeal, the United States Equal Employment Opportunity Commission (“EEOC”) was granted permission to appear as Amicus Curiae. It has filed a brief and orally argued the case. .The district court stated that \"[b]ecause both parties have submitted affidavits in support of their positions, I will treat the defendant’s motion as one for summary judgment under Fed.R. Civ.P. 56.\" Wheeler v. Main Hurdman, Civ. No. 85-C-163, slip. op. at 1 (D.Colo. Aug. 13, 1985). . Main Hurdman’s Motion to Dismiss states: \"[P]ursuant to Rules 12(b) and 12(h)(3) of the Federal Rules of Civil Procedure, [the defendant] moves this Court to dismiss the Complaint filed in this action for lack of subject matter jurisdiction_” Defendant’s Motion to Dismiss at 1. . Unlike the strict limitations under 12(b)(6) against considering matters outside the complaint, a 12(b)(1) motion is considered a “speaking motion” and can include references to evidence extraneous to the complaint without converting it to a Rule 56 motion. Crawford v. United States, 796 F.2d 924 (7th Cir.1986); Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986); Indium Corp. of America v. Semi-Alloys, Inc., 781 F.2d 879, 884 (Fed.Cir.1985); Sun Valley Gas v. Ernst Enterprises, Inc., 711 F.2d 138, 139 (9th Cir.1983); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982); Timberlane v. Bank of America, 549 F.2d 597, 601-03 (9th Cir.1976) (\"Timberlane I\"). A court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts under 12(b)(1). Frequently, courts look to Rule 56 for guidance in ruling upon evidentiary matters under 12(b)(1)." }, { "docid": "15588310", "title": "", "text": "precluded. Elder v. Brannan, 1950, 87 U.S. App.D.C. 117, 184 F.2d 219, modified, 1951, 341 U.S. 277, 71 S.Ct. 685. Anderson v. United States, supra. Rule 56(c) of the Federal Rules provides that summary judgment shall be granted if it is shown “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The latter condition was not, on the record before us, fulfilled. The same situation which made it error to give summary judgment for defendants on the claim for back salary precluded also such judgment on plaintiff’s request for a declaratory judgment, since it does not appear this relief was denied as a matter of discretion. Denial on that ground, however, remains open for consideration by the District Court in the circumstances as they might develop. See Brillhart v. Excess Ins. Co., 1942, 316 U.S. 491, 494, 62 S.Ct. 1173, 86 L.Ed. 1620; Consumer Mail Order Association v. McGrath, D.C.D.C., 1950, 94 F.Supp. 705, affirmed, 1951, 340 U.S. 925, 71 S.Ct. 500. The appellees urge on appeal that the claims of appellant are barred by laches. This defense, however, is required to be made affirmatively in the District Court under Rule 8(c), Fed.R.Civ.P.; and Rule 12(b) requires that such an affirmative defense be made by a responsive pleading. The appellees, however, moved to dismiss, and this, under the above Rules, did not raise the question of laches; nor did the affidavits filed in the District Court affirmatively raise that issue. When, therefore, the court granted summary judgment pursuant to the provisions of Rule 12(b), no issue of laches was presented by the pleadings or affidavits. See footnote 1, supra. Reversed and remanded for further proceedings. . Under Rule 12(b), Fed.R.Civ.P., it is only on a motion asserting the defense numbered (6), failure to state a claim upon which relief can be granted, that the motion “shall be treated as one for summary judgment” when matters outside the pleading are presented to and not excluded by the court. A motion to dismiss for lack of" }, { "docid": "157491", "title": "", "text": "Bear, Stearns & Co., supra, we hold that in this circuit the particularity requirement of Rule 9(b) is applicable generally in securities fraud cases. The district court dismissed defendants’ counterclaim on the pleadings solely for failure to satisfy Rule 9(b): “Sound reasoning and common sense dictates that the counterclaim defendants filed in this court totally fails to meet the standard imposed by Fed.R.Civ.P. 9(b), and that Seattle- First’s motion to dismiss must therefore be granted.” (R., Vol. Ill, p. 593.) While the counterclaim and the proposed amended counterclaim are not examples of “model” pleadings, given the liberal approach this court has taken regarding securities fraud cases, see, e.g. Clegg v. Conk, 507 F.2d 1351 (10th Cir.1974), cert. denied, 422 U.S. 1007, 95 S.Ct. 2628, 45 L.Ed.2d 669 (1975), and the importance of reading Rule 9(b) in conjunction with the pleading requirements of Rule 8, see 5 C. Wright & A. Miller, Federal Practice & Procedure § 1298 (1969), we hold the district court erred in dismissing the defendant’s 10b-5 claim for failure to satisfy Rule 9(b). The dismissal of a complaint or counterclaim for failing to satisfy the requirements of Rule 9(b) is treated as a dismissal for failure to state a claim upon which relief can be granted under Fed. Rules Civ.P. 12(b)(6). Benoay v. Decker, 517 F.Supp. 490, 494 (E.D.Mich.1981), aff'd without opinion, 735 F.2d 1363 (6th Cir.1984). Dismissal of a complaint or counterclaim pursuant to Rule 12(b)(6) is a dismissal on the pleadings unless “matters outside the pleading are presented to and not excluded by the court ...” in which case “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56____” 28 Fed.Rules Civ.P. 12(b). In this case, the district court did not consider “matters outside the pleadings.” Therefore, the dismissal of the counterclaim and the amended counterclaim is on the pleadings. A court’s function in dismissing a counterclaim on the pleadings is merely to determine whether the counterclaim itself is legally sufficient; a court may not dismiss at the pleading stage of the action by weighing the evidence" }, { "docid": "1663916", "title": "", "text": "28 U.S.C.A. But in each and every instance cited by appellee, the party opposing the motion to dismiss to which affidavits were attached was given the opportunity to submit counter affidavits. See Latta v. Western Inv. Co., 9 Cir., 1949, 173 F.2d 99; Alesna v. Rice, D.C. Hawaii 1947, 74 F.Supp. 865, 869; Yudin v. Carroll, D.C.W.D.Ark.1944, 57 F.Supp. 793; Murray v. American Export Lines, Inc., D.C.S.D.N.Y.1943, 53 F.Supp. 861. Nor is there any inherent power existing independently of the Rules in the exercise of which a court may dismiss a complaint as sham on the basis of affidavits submitted by the moving party without giving his opponent the chance to reply. None of the authorities cited by appellee support the procedure followed by the District Court. See Union Transfer Co. v. Riss & Co., 8 Cir., 1951, 218 F.2d 553; Landy v. Silverman, 1 Cir., 1951, 189 F.2d 80; Sprague v. Vogt, 8 Cir., 1945, 150 F.2d 795; Curry v. Mackenzie, 1925, 239 N.Y. 267, 146 N.E. 375; Neal v. Bank of America, 1949, 93 Cal.App.2d 678, 209 P.2d 825; 41 Am.Jur., Pleading, §§ 347, 355. The remedy afforded by the Federal Rules of Civil Procedure in a case such as this one is dismissal for failure to state a claim upon which relief can be granted, Fed.Rule Civ.P. 12(b) (6); Abbott v. American Machine & Foundry Co., D.C.S.D.NY.1949, 9 F.R.D. 310. When affidavits beyond the pleadings are submitted by the moving party and not excluded by the District Judge, as is the case here, Fed.Rule Civ.P. 12(b) requires that the motion be treated as one for summary judgment pursuant to Rule 56. The District Court did not so treat appel-lee’s motion. The order of dismissal is therefore reversible error. Mantin v. Broadcast Music Inc., 9 Cir., 1957, 248 F.2d 530. See also McPherson v. Amalgamated Sugar Co., 9 Cir., 1959, 271 F.2d 809, 810. Reversed and remanded." }, { "docid": "6487878", "title": "", "text": "statutory period elapsed. Reversed and remanded. . A “presumption” of prejudice is said to arise when the analogous limitations period has run, but as Judge Friendly said in Larios v. Victory Carriers, Inc., 316 F.2d 63, 66-67 (2d Cir. 1963), “We cannot regard it as consistent with [the Supreme Court’s decisions in Gardner and Czapliclii] to hold that expiration of the analogous state statute creates a ‘presumption of prejudice’, save in the sense that if the plaintiff proffers no pleading or presents no proof on the issue of laches, the defendant wins.” Cf. Molnar v. Gulfcoast Transit Co., 371 F.2d 639, 641 (5th Cir. 1967). . “In considering whether the exceptions would warrant dismissal, it was the duty of the Court to accept as true the well pleaded averments of the libel.” McDaniel v. Gulf & South American S.S. Co., 228 F.2d 189, 191 (5th Cir. 1955). Molnar v. Gulfcoast Transit Co., 371 F. 2d 639, 641 (5th Cir. 1967). . Ocean Cargo submitted an affidavit to the district court to tlie effect that the vessel on which the injury occurred had been sold and the crew scattered, but now concedes that it could not properly be considered. It was not made on personal knowledge and did not show affirmatively that the affiant was competent to testify to the matters stated. Fed.R.Civ. Proc. 56(e). Moreover, the district court did not purport to treat the motion to dismiss as a motion for summary judgment, affording Espino a reasonable opportunity to present material made pertinent to such a motion by Rule 56, Fed.R.Civ. Proc. 12(b); Mantin v. Broadcast Music, Inc., 248 F.2d 530, 532 (9th Cir. 1957)." }, { "docid": "22293747", "title": "", "text": "1983 and that the affidavits filed in support of the motion for summary judgment do not demonstrate the absence of any issue of material fact, it is our view that the judgment of the court below must be reversed and the action remanded to the district court for a hearing on the merits. The judgment of the district court granting summary judgment for appellees with respect to count 1 is reversed and the action is accordingly remanded for trial on the merits as to that count. The judgment dismissing counts 2 and 3 is affirmed. . The appellees moved to dismiss “pursuant to FRCP 12(b) or in the alternative FRCP 56.” In dismissing the action the district court stated that “defendant’s motions to dismiss under FRCP 12(b) and for summary judgment under FRCP 56 are granted.” Rule 12(b) of the Federal Rules of Civil Procedure provides: If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Since affidavits were presented by the appellees and since the opinion of the court below reveals that they were considered, we treat the disposition below as summary judgment for the defendants. . See, e. g., Monroe v. Pape, 365 U.S. 167, 184, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), 42 U.S.C. § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding" }, { "docid": "21424209", "title": "", "text": "present all material made pertinent to such a motion by Rule 56.” Fed.R.Civ.P. 12(b). However, although the magistrate relied on the affidavit, he considered only whether the complaint failed to state a claim. His report contains no language discussing the presence or absence of genuine issues of material fact. The district court made no additional findings. On appeal, the Corrections Center does not make the argument that the district court erred when it dismissed the complaint for failure to state a claim. Instead, it argues the dismissal followed a grant of summary judgment, because the district court relied on the affidavit. We will treat the dismissal as one pursuant to Rule 12(b)(6) for failure to state a claim. The language of the report and order reflect that the magistrate treated the motion under this rule. The Corrections Center is not entitled to summary judgment against a pro se litigant merely by attaching an affidavit to its motion. We have observed that courts are reluctant to grant summary judgment for defendants in Title VII cases where the proof is in the hands of the alleged wrongdoers. Lutcher v. Musician’s Local 47, 633 F.2d 880, 882-83 (9th Cir.1980). The Corrections Center did not abandon its Rule 12(b)(6) motion by also moving for summary judgment. 2. Whether Baker’s Complaint Failed To State A Claim A dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir.1984). Review is limited to the contents of the complaint. Id. A complaint should not be dismissed under the rule “unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,102, 2 L.Ed.2d 80 (1957). All allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985), cert. denied, 474 U.S. 1056," }, { "docid": "12538278", "title": "", "text": "any other affirmative manner that the material was being excluded. Furthermore, the reason stated by the court for its dismissal of the original complaint indicates to us that the court did in fact consider matters outside the complaint. The court based its decision on section 16902(a) of the California Business and Professions Code, which allows resale price maintenance where, among other facts, there is “fair and open competition.” The complaints make no allegations in terms of “fair and open competition” or the like, although they do allege, in conclusory terms, that the appellees had monopolized, or were attempting to monopolize, this industry. Thus it seems that the state statute could be held to be a defense only upon the basis of facts determined from matters not appearing from the allegations of the complaints. Furthermore, since the state statute relates only to resale price maintenance, the reasoning expressed by the District Court does not indicate why dismissal of the charges of monopolization, exclusive dealing, and illegal tie-ins was thought to be proper. Moreover, while the amended complaint omitted any charges of resale price maintenance, the court stated that the amended complaint was dismissed for the same reasons as stated in its first order dismissing the original complaint. Presumably, therefore, the dismissal of the amended complaint resulted from consideration of the same matters — including the relevant information in the affidavit — as led to the dismissal of the original complaint. In view of all these considerations, we cannot hold that the District Court excluded the affidavit in its consideration of the motions for dismissal. Directly applicable is our court’s statement in Cohen v. Cahill, supra, as follows: “When affidavits beyond the pleadings are submitted by the moving party and not excluded by the District Judge, as is the case here, Fed.Rule Civ.P.12(b) requires that the motion be treated as one for summary judgment pursuant to Rule 56. The District Court did not so treat appellee’s motion. The order of dismissal is therefore reversible error.” 281 F.2d at 881. In light of the foregoing, it becomes unnecessary to discuss numerous contentions made" }, { "docid": "12538277", "title": "", "text": "reasonable opportunity to present all material facts made pertinent to such motion by Rule 56. The District Court failed to comply with such provision of Rule 12(b).” 374 F.2d at 683. The Erlich court also relied on several earlier decisions from our Circuit that are directly applicable to the present problem. Cohen v. Cahill, 281 F.2d 879 (9th Cir. 1960); Mantin v. Broadcast Music, Inc., 248 F.2d 530 (9th Cir. 1957). Additionally, see McPherson v. Amalgamated Sugar Co., 271 F.2d 809 (9th Cir. 1959); cf. S & S Logging Co. v. Barker, 366 F.2d 617 (9th Cir. 1966); Smith v. United States, 362 F.2d 366 (9th Cir. 1966). It does not appear from the record before us that the District Court dealt with the appellees’ motions as being ones for summary judgment. At the same time, however, the record does indicate that the court did not exclude from its consideration the affidavit filed with the first motion to dismiss. The court made no order concerning this material outside the pleading, nor did it indicate in any other affirmative manner that the material was being excluded. Furthermore, the reason stated by the court for its dismissal of the original complaint indicates to us that the court did in fact consider matters outside the complaint. The court based its decision on section 16902(a) of the California Business and Professions Code, which allows resale price maintenance where, among other facts, there is “fair and open competition.” The complaints make no allegations in terms of “fair and open competition” or the like, although they do allege, in conclusory terms, that the appellees had monopolized, or were attempting to monopolize, this industry. Thus it seems that the state statute could be held to be a defense only upon the basis of facts determined from matters not appearing from the allegations of the complaints. Furthermore, since the state statute relates only to resale price maintenance, the reasoning expressed by the District Court does not indicate why dismissal of the charges of monopolization, exclusive dealing, and illegal tie-ins was thought to be proper. Moreover, while the amended" }, { "docid": "3462284", "title": "", "text": "than he was permitted to possess in his cell under applicable prison regulations . . . .” McKinney v. DeBord, 324 F.Supp. 928, 932 (E.D.Cal.1970). Based upon statements in documents other than the unanswered complaint, Judge Choy concludes that McKinney would have put the books, to be purchased in his cell. The district court could not have relied upon these statements, however, without treating the motion as one for summary judgment. If it did so, it would be required to allow McKinney to respond. Dale v. Hahn, 440 F.2d 633, 638 (2d Cir. 1971). Nor do 1 believe the district court could dismiss the complaint as a sham on the basis of pleadings of the defendants without allowing McKinney to respond. Cohen v. Cahill, 281 F.2d 879 (9th Cir. 1960). At no time was McKinney required to or requested to respond. As the court gave no indication it was dismissing other than based upon the complaint itself, I believe we must review the action of the district court under the strict standards referred to by Judge Choy governing dismissals of complaints. We may do so only by referring to the complaint and not to other materials. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); Williford v. California, 352 F.2d 474 (9th Cir. 1965); Marshall v. Sawyer, 301 F.2d 639, 647 (9th Cir. 1962). I cannot say that the complaint, considered by itself with all factual disputes resolved in favor of McKinney, alleges no facts that could be proved which would support a claim for relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Although it could be inferred that McKinney did intend to keep the books in his cell, to reach such a conclusion the evidence would have to be viewed most favorably to the defendants. This the district court cannot do in ruling on a motion to dismiss. Fed.R. Civ.P. 12(b)(5). I would reverse and remand count 3. CURTIS, District Judge (concurring and dissenting): I concur with Judge Choy’s holding that the trial" }, { "docid": "23185240", "title": "", "text": "before converting Stanadyne’s 12(b)(6) motion, Fed.R. Civ.P., into a motion for summary judgment under Rule 56(c). In converting Sta-nadyne’s motion to dismiss into a summary judgment the district judge stated: “Proper treatment of [this motion to dismiss] requires the court to refer to and rely upon the Anderson affidavit as well. When matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss will be converted into a motion for summary judgment.” Farries, 618 F.Supp. at 1325. Rule 12(b) provides that: “If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” The Advisory Committee Notes on Rule 12(b) amplify the text of the rule: “The addition at the end of subdivision (b) makes it clear that on a motion under Rule 12(b)(6) extraneous material may not be considered if the court excludes it, but that if the court does not exclude such material the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. It will also be observed that if a motion under Rule 12(b)(6) is thus converted into a summary judgment motion, the amendment insures that both parties shall be given a reasonable opportunity to submit affidavits and extraneous proofs to avoid taking a party by surprise through the conversion of the motion into a motion for summary judgment.” See also Wright & Miller, Federal Practice & Procedure § 1366. On a number of occasions we have been presented with a situation where a district court has converted a Rule 12(b)(6) motion into one for summary judgment without giving the parties notice. See Malak v. Associated Physicians, Inc., 784 F.2d 277, 280-81 (7th Cir.1986); Milwaukee Typo," }, { "docid": "14862731", "title": "", "text": "should be applied to habeas petitions when the Rules Governing § 2254 Cases are silent. Under the Federal Rules of Civil Procedure, a judgment on the pleadings may be made under Rule 12(c) if the court considers only the pleadings, or under Rule 56 if the court considers any evidence outside the pleadings. Respondent filed an Answer-Response to Hill’s petition, requesting that the case be dismissed under Rule 9(a) and denying the merits of Hill’s claim. Attached to the respondent’s pleading was a brief as well as five documentary exhibits. In McDonnell the court held that the dismissal of McDonnell’s petition pursuant to the respondent’s motion to dismiss “was actually a summary judgment and not a dismissal on the pleadings,” 666 F.2d at 250, when “extraneous evidence was considered along with the pleadings.” Id. Here the magistrate’s report, on which the district court’s decision was based, relied on the state’s exhibits in dismissing Hill’s petition under Rule 9(a). Therefore, the state’s request for a Rule 9(a) dismissal was converted into a motion for summary judgment, analogously to the provision in Fed.R. Civ.P. 12(b)(6) that a motion to dismiss for failure to state a claim upon which relief can be granted will be treated as a motion for summary judgment when matters outside the pleadings are presented to the court. See McDonnell, 666 F.2d at 250. Under Rule 56(c), Hill was entitled to notice that the state’s request for a Rule 9(a) dismissal would be treated as a motion for summary judgment and an opportunity to offer evidence in opposition to the motion. See Hickey v. Arkla Industries, Inc., 615 F.2d 239 (5th Cir.1980) (parties must be given 10 days notice that 12(b)(6) motion being treated as Rule 56 motion); McDonnell, 666 F.2d at 252. The district court erred in dismissing Hill’s petition without giving the requisite notice. It is not enough that Hill filed a Traverse to respondent’s Answer-Response, or that he filed Objections to the Magistrate’s Recommendation. McDonnell, 666 F.2d at 255. In Hickey the court stressed the importance of notifying the opposing party that summary judgment is being" }, { "docid": "22229285", "title": "", "text": "motion under Rule 12(b)(1), the district court must accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff. Sladek v. Bell System Management Pension Plan, 880 F.2d 972, 975 (7th Cir.1989). This court reviews dismissal for lack of subject matter jurisdiction de novo. Joyce v. Joyce, 975 F.2d 379, 382 (7th Cir.1992) (citing Houck ex rel. United States v. Folding Carton Administration Committee, 881 F.2d 494, 503 (7th Cir.1989), cert. denied, 494 U.S. 1026, 110 S.Ct. 1471, 108 L.Ed.2d 609 (1990)). B Capitol argues that the trial court should have afforded it an evidentiary hearing to resolve the factual issue whether it ever received proper notification that the FDIC had denied its claim. Appellant’s Brief at 10. The FDIC, Capitol contends, in essence requested the district court to treat its motion as one for summary judgment pursuant to Federal Rule of Civil Procedure 56 — that is, to make a determination as a matter of law. Capitol further asserts that the district court converted the motion for dismissal into one for summary judgment by considering and relying upon affidavits and documents submitted by the FDIC to show that it issued a notice of disallowance on December 17,1991. This argument is unavailing because Capitol misconstrues the relationship between Rule 12(b)(1) and summary judgment. Indisputably, a district court can transform a motion for dismissal under Federal Rule 12(b)(6) into one for summary judgment when “matters outside the pleading are presented to and not excluded by the court....” Fed.R.Civ.P. 12(b)(6). See also R.J.R. Services, Inc. v. Aetna Casualty and Surety Co., 895 F.2d 279, 281 (7th Cir.1989). Capitol’s argument notwithstanding, the Federal Rules of Civil Procedure contain no analogous recognition that a 12(b)(1) motion can evolve into dismissal pursuant to Rule 56. Crawford v. United States, 796 F.2d 924, 928 (7th Cir.1986) (“The omission from the Federal Rules of Civil Procedure of a provision for converting a Rule 12(b)(1) motion into a summary judgment motion if evidence is submitted with it was not an oversight.”). Whereas a grant of summary judgment is a decision on the merits," }, { "docid": "12538276", "title": "", "text": "amended complaint, three motions to dismiss the amended complaint for failure to state a claim upon which relief could be granted were filed by various defendants to the action. At the time of the filing of one of the motions, an affidavit of one of the appellees “IN SUPPORT OF MOTION TO DISMISS” was also filed on behalf of the parties to that motion. These motions resulted in a judgment of dismissal by the District Court. Stating that it had “considered all of the written documents filed herein,” the District Court specified several grounds for its judgment. In disposing of the appeal, we wrote: “The affidavit filed by some of the appellees was not excluded by order of the District Court. Hence, the District Court was required to treat the motions of appellees to dismiss for failure of the amended complaint to state a claim upon which relief could be granted as motions for summary judgment, and dispose of them as provided in Rule 56, and the District Judge was required to give all parties reasonable opportunity to present all material facts made pertinent to such motion by Rule 56. The District Court failed to comply with such provision of Rule 12(b).” 374 F.2d at 683. The Erlich court also relied on several earlier decisions from our Circuit that are directly applicable to the present problem. Cohen v. Cahill, 281 F.2d 879 (9th Cir. 1960); Mantin v. Broadcast Music, Inc., 248 F.2d 530 (9th Cir. 1957). Additionally, see McPherson v. Amalgamated Sugar Co., 271 F.2d 809 (9th Cir. 1959); cf. S & S Logging Co. v. Barker, 366 F.2d 617 (9th Cir. 1966); Smith v. United States, 362 F.2d 366 (9th Cir. 1966). It does not appear from the record before us that the District Court dealt with the appellees’ motions as being ones for summary judgment. At the same time, however, the record does indicate that the court did not exclude from its consideration the affidavit filed with the first motion to dismiss. The court made no order concerning this material outside the pleading, nor did it indicate in" }, { "docid": "14758834", "title": "", "text": "to dismiss, cited two cases on which he relied, and sought appointment of counsel to assist him in preparing a response. He also requested an extension of time within which to respond. On August 3, 1981 the district court, without referring to the request for an extension of time, declined to appoint counsel and dismissed the complaint after concluding, on the basis of the affidavit filed in support of defendant’s motion to dismiss, that defendant was entitled to a qualified immunity. Woods now appeals from the district court’s order of dismissal. Under Rule 12(b) of the Federal Rules of Civil Procedure, a motion to dismiss for failure to state a claim upon which relief can be granted must be treated as a motion for summary judgment when matters outside the pleadings are presented and not excluded by the trial court. Fed.R. Civ.P. 12(b); e. g., Mazaleski v. Treusdell, 562 F.2d 701 (D.C.Cir.1977); Abramson v. Mitchell, 459 F.2d 955 (8th Cir. 1972). Thus, if the defendant files an affidavit in support of his motion to dismiss, the district court must treat the motion as one for summary judgment-unless it decides to exclude the affidavit in considering the motion. E. g., Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389 (6th Cir. 1975). Because the district court considered the supporting affidavit in ruling on the defense motion in the instant case, the motion for dismissal of the complaint was in effect converted to a motion for summary judgment, and we must review the order grant ing the motion as one granting summary judgment. E. g., Basel v. Knebel, 551 F.2d 395 (D.C.Cir.1977); Potrero Hill Community Action Committee v. Housing Authority, 410 F.2d 974 (9th Cir. 1969). When a motion to dismiss is treated as a motion for summary judgment, Rule 12 provides for its disposition pursuant to Rule 56. Fed.R.Civ.P. 12(b). Rule 12 further provides that “all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Id.; e. g., Jablon v. Dean Witter & Co., 614 F.2d 677 (9th Cir." }, { "docid": "5364100", "title": "", "text": "se prisoner litigants, Anderson concludes, the district court’s failure to do so in this case warrants reversal. After reviewing de novo this grant of summary judgment, we agree. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). A motion to dismiss made under Federal Rule of Civil Procedure 12(b)(6) must be treated as a motion for summary judgment under Federal Rule of Civil Procedure 56 if either party to the motion to dismiss submits materials outside the pleadings in support or opposition to the motion, and if the district court relies on those materials. Fed. R.Civ.P. 12(b)(6); Jackson v. Southern California Gas Co., 881 F.2d 638, 643 n. 4 (9th Cir.1989) (“The proper inquiry is whether the court relied on the extraneous matter.”); cf. North Star Int’l v. Arizona Corp. Comm’n, 720 F.2d 578, 582 (9th Cir.1983) (“[A] motion to dismiss is not automatically converted into a motion for summary judgment whenever matters outside the pleading happen to be filed with the court and not expressly excluded.”). Here, the district court in its order expressly relied upon the Regulations, which appear nowhere in the record except appended to Angelone’s affidavit, in reaching its conclusion that the Regulations are reasonably related to “legitimate penological interests.” The court thus converted the defendant’s motion to dismiss into one for summary judgment. “When the district court transforms a dismissal into a summary judgment proceeding, it must inform a plaintiff who is proceed ing pro se that it is considering more than the pleadings and must afford a reasonable opportunity to present all pertinent material.” Lucas v. Department of Corrections, 66 F.3d 245, 248 (9th Cir.1995) (citing Garaux v. Pulley, 739 F.2d 437 (9th Cir.1984)). If the pro se litigant is a prisoner, the district court’s duties are even greater: “The District courts are obligated to advise prisoner pro per litigants of Rule 56 requirements.” Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir.1988). This requires the district court to tell the prisoner about his “right to file counter-affidavits or other" }, { "docid": "12538279", "title": "", "text": "complaint omitted any charges of resale price maintenance, the court stated that the amended complaint was dismissed for the same reasons as stated in its first order dismissing the original complaint. Presumably, therefore, the dismissal of the amended complaint resulted from consideration of the same matters — including the relevant information in the affidavit — as led to the dismissal of the original complaint. In view of all these considerations, we cannot hold that the District Court excluded the affidavit in its consideration of the motions for dismissal. Directly applicable is our court’s statement in Cohen v. Cahill, supra, as follows: “When affidavits beyond the pleadings are submitted by the moving party and not excluded by the District Judge, as is the case here, Fed.Rule Civ.P.12(b) requires that the motion be treated as one for summary judgment pursuant to Rule 56. The District Court did not so treat appellee’s motion. The order of dismissal is therefore reversible error.” 281 F.2d at 881. In light of the foregoing, it becomes unnecessary to discuss numerous contentions made by the parties in support of their respective positions. These con tentions will of course be considered by the District Court upon remand, either on motion for dismissal or on motion for summary judgment, although in antitrust cases such as this, the summary judgment procedure is more often desirable. . “Each appellant” includes each of the two husband-wife combinations. . For example, in Tobman v. Cottage Woodcraft Shop, 194 F.Supp. 83 (S.D.Cal.1961), the court expressly noted in its opinion, which dismissed the complaint for failure to state a claim upon which relief could be granted, that it was disregarding the affidavits filed with the court in connection with alternative motions for summary judgment or for dismissal. 194 F.Supp. at 90. . “Fair and open” has been held to relate to the manner of competition, rather than to the results. Scovill Mfg. Co. v. Skaggs Pay Less Drug Stores, 45 Cal.2d 881, 890, 291 P.2d 936, 941 (1956). . In the Tollman case, discussed in note 2, supra, which involved a number of issues that are" }, { "docid": "157492", "title": "", "text": "9(b). The dismissal of a complaint or counterclaim for failing to satisfy the requirements of Rule 9(b) is treated as a dismissal for failure to state a claim upon which relief can be granted under Fed. Rules Civ.P. 12(b)(6). Benoay v. Decker, 517 F.Supp. 490, 494 (E.D.Mich.1981), aff'd without opinion, 735 F.2d 1363 (6th Cir.1984). Dismissal of a complaint or counterclaim pursuant to Rule 12(b)(6) is a dismissal on the pleadings unless “matters outside the pleading are presented to and not excluded by the court ...” in which case “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56____” 28 Fed.Rules Civ.P. 12(b). In this case, the district court did not consider “matters outside the pleadings.” Therefore, the dismissal of the counterclaim and the amended counterclaim is on the pleadings. A court’s function in dismissing a counterclaim on the pleadings is merely to determine whether the counterclaim itself is legally sufficient; a court may not dismiss at the pleading stage of the action by weighing the evidence that might be presented or by otherwise considering the counterclaimant’s likelihood of success. Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). In reviewing a district court’s dismissal on the pleadings for failure to state a claim, an appellate court must consider de novo whether the pleading is legally sufficient. In Trussell v. United Underwriters, Ltd, 228 F.Supp. 757, 774-75 (D.Colo. 1964), the court elaborated upon the Rule 9(b) requirements: Rule 9(b) does not ... require the pleading of detailed evidentiary matter, nor does it require any particularity in connection with an averment of intent, knowledge, or condition of mind. It only requires identification of the circumstances constituting fraud or mistake. That requirement means ... that individual plaintiffs should identify particular defendants with whom they dealt directly, and from whom they purchased stock; that individual plaintiffs should designate the occasions on which affirmative statements were allegedly made to them — and by whom; and that individual plaintiffs should designate what affirmative misstatements or half-truths were directed to them — and how. We believe this is" }, { "docid": "22105167", "title": "", "text": "to dismiss under Fed.R.Civ.P. 12(b)(6). The minute order indicates that the district court granted the motion as a motion to dismiss. The district court’s subsequent decision, however, indicates that the court considered the exhibits and granted the motion as one for summary judgment pursuant to Fed.R.Civ.P. 56. Rule 12(b) states that if, on a motion to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleadings are presented and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. It is reversible error for a court to grant a motion to dismiss that has been converted to one for summary judgment, without providing all parties a reasonable opportunity to present material relevant to a Rule 56 motion. Erlich v. Glasner, 374 F.2d 681, 683 (9th Cir.1967); Costen v. Pauline’s Sportswear Inc., 391 F.2d 81, 84-85 (9th Cir.1968). To enable the court to determine whether the Unemployment Insurance Appeals Board’s decision has a collateral estoppel effect on Mack’s age discrimination claim, South Bay requested the district court to take judicial notice of the state administrative records attached to the motion to dismiss as exhibits. Consequently, Mack contends that this court should reverse the district court because it violated Rule 56 by not giving him the requisite notice and reasonable opportunity to submit all pertinent material. On a motion to dismiss, however, a court may take judicial notice of facts outside the pleadings. Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir.1956); 5 C. Wright & A. Miller, Federal Practice & Procedure, § 1363 at 659-60 (1969). Moreover, a court may take judicial notice of “records and reports of administrative bodies.” Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir.1953). Therefore, on a motion to dismiss a court may properly look beyond the complaint to matters of public record and doing so does not convert a Rule 12(b)(6) motion to one for summary judgment. See Phillips v. Bureau of Prisons, 591" }, { "docid": "7089290", "title": "", "text": "for summary judgment; dispose of it as provided in Rule 56; give plaintiff and the moving defendants reasonable opportunity to present all material made pertinent to such a motion by Rule 56 ; thereupon determine whether the complaint, the depositions, if any, the admissions, if any, the affidavits of Kerby and Janssen and the other affidavits, if any, showed that, as between plaintiff and the moving defendants, there was no genuine issue as to any material fact, and that the moving defendants were entitled to a judgment as a matter of law; if so, render such judgment forthwith; and, if not, deny the motion. Instead of doing what Rule 12(b) required, the District Court treated the motion as nothing but a motion to dismiss the action for failure of the complaint to state a claim upon which relief could be granted and, so treating the motion, granted it and entered the judgment here appealed from — a judgment dismissing the action for failure of the complaint to state such a claim. This was error. Judgment reversed and case remanded for further proceedings in conformity with this opinion. . The six moving defendants were Broadcast Music, Inc., United Artists Corporation, Columbia Broadcasting System, Inc., Radio Corporation of America, Capitol Records Distributing Corporation (sued as Capitol Records Distributing Co., Inc.) and Columbia Records, Inc. (sued as Columbia Recording Corporation). . Seo Mantin v. Broadcast Music, 9 Cir., 244 F.2d 204. . Sec Mantin v. Broadcast Music, supra. . Meaning, obviously, Rule 56 of the Federal Rules of Civil Procedure. . The complaint was the only pleading in this action. . Plaintiff presented an affidavit of Paul Kerby, an affidavit of Werner Janssen and a copy of a certificate of copyright registration (No. 69688). The moving defendants presented copies of seven certificates of copyright registration (Nos. 518734, 49787, 135744, 140536, 197987, 209074 and 74528) and copies of two pleadings in an action by John Italiani against Metro-Goldwyn-Mayer Corporation and others in the Superior Court of Los Angeles County, California. . Such pertinent material might have included affidavits other than those of Kerby and" } ]

[ { "docid": "19823248", "title": "", "text": "from work on a Saturday for non-religious reasons. To remedy Ilona’s violation, the court awarded back pay to both employees and ordered that Glukhov-sky be reinstated. The court also granted the Commission’s request for injunctive relief. II. Title VII makes it unlawful to discharge or otherwise to discriminate against an individual because of that individual’s religion. 42 U.S.C. § 2000e-2(a)(l). The statute defines “religion” to include “all aspects of religious observance and practice, as well as belief.” 42 U.S.C. § 2000e(j). Somewhat awkwardly, this definition also gives substance to Title VII’s prohibition against religious discrimination by imposing an affirmative duty on employers to reason- ■ ably accommodate the religious observances and practices of its employees, unless the employer can demonstrate that such an accommodation would cause undue hardship to the conduct of its business. Id.; see also Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 & n. 1, 107 S.Ct. 367, 369 & n. 1, 93 L.Ed.2d 305 (1986); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74, 97 S.Ct. 2264, 2271-72, 53 L.Ed.2d 113 (1977). Thus, once the plaintiff has established a prima facie case of discrimination, the burden shifts to the employer to make a reasonable accommodation of the religious practice or to show that any accommodation would result in undue hardship. Baz v. Walters, 782 F.2d 701, 706 (7th Cir.1986); Redmond v. GAF Corp., 574 F.2d 897, 901 (7th Cir.1978); see also EEOC v. Hacienda Hotel, 881 F.2d 1504, 1512 (9th Cir.1989). A. In order to establish a prima facie case of religious discrimination, a plaintiff must show that the observance or practice conflicting with an employment requirement is religious in nature, that she called the religious observance or practice to her employer’s attention, and that the religious observance or practice was the basis for her discharge or other discriminatory treatment. See EEOC v. United Parcel Serv., 94 F.3d 314, 317 (7th Cir.1996); Wright v. Runyon, 2 F.3d 214, 216 n. 4 (7th Cir.1993), cert. denied, 510 U.S. 1121, 114 S.Ct. 1077, 127 L.Ed.2d 394 (1994); Beasley v. Health Care Serv. Corp., 940 F.2d" } ]

[ { "docid": "22908762", "title": "", "text": "Deputy Assistant General Counsel who had been performing as Acting Assistant General Counsels — Stover’s argument that she was more experienced than Dole is insufficient to establish that HUD’s explanation was so inconsistent, implausible, incoherent, or contradictory to not be given credence. Bausman, 252 F.3d at 1120. See also Branson, 853 F.2d at 772 (concluding that a plaintiffs claim that she was as or more qualified than the employee retained for a position was insufficient to avoid a grant of summary judgment to her employer). We conclude that Stover has not met her burden of demonstrating that HUD’s proffered explanations for the two actions were pretextual; therefore her racial discrimination claims fail under the McDonnell Douglas test. Accordingly, we conclude that the grant of summary judgment to HUD on Stover’s racial discrimination claims was proper. C Title VII also prohibits an employer from discharging “any individual ... because of such individual’s ... religion.” 42 U.S.C. § 2000e-2(a)(l). “[A]ll aspects of religious observance and practice, as well as belief’ are protected. 42 U.S.C. § 2000e(j). The familiar McDonnell Douglas framework is equally applicable to religious discrimination claims, modified to reflect the particular factual situation at hand. See Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1037-38 (10th Cir.1993) (modifying the traditional McDonnell Douglas prima facie case where plaintiff argued he was discriminated against because he failed to share the same religious beliefs as his employer). In the instant case, Stover argues that she has established a prima facie case by showing that: (1) she is Jewish; (2) she was subjected to an adverse employment action; and (3) there is a causal connection between her religion and the adverse employment action. HUD argues that Stover has not demonstrated that she is Jewish, and that in any event, she failed to demonstrate that anyone at HUD responsible for the alleged adverse actions was aware that Sto-ver was Jewish. We accept Stover’s assertion that she is Jewish; however, we are unable to conclude that Stover has shown a causal connection between her being Jewish and these adverse employment actions, namely her reassignment to" }, { "docid": "23088452", "title": "", "text": "prejudice. The district court then declined to exercise supplemental jurisdiction over Plaintiffs state claims and, accordingly, the court dismissed those claims without prejudice. This timely appeal ensued. STANDARD OF REVIEW The district court granted Defendant’s Federal Rule of Civil Procedure 12(b)(6) motion. This court reviews such a decision de novo. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir.1998). TITLE VII Title VII provides in part: It shall be an unlawful employment practice for an employer— (1)to fail or refuse to hire ... any individual ... because of such individual’s ... religion ... [.] 42 U.S.C. § 2000e-2(a)(l). “Religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business. 42 U.S.C. § 2000e(j). This court has adopted a two-part test for analyzing religious discrimination claims under Title VII. See Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999) (en banc). First, “the employee must establish a prima facie case [of discrimination] by proving that (1) she had a bona fide religious belief, the practice of which conflicted with an employment duty; (2)she informed her employer of the belief and conflict; and (3) the employer threatened her or subjected her to discriminatory treatment, including discharge, because of her inability to fulfill the job requirements.” Tiano v. Dillard Dep’t Stores, Inc., 139 F.3d 679, 681 (9th Cir.1998). “[I]f the employee proves a prima facie case of discrimination, the burden shifts to the employer to show either that it initiated good faith efforts to accommodate reasonably the employee’s religious practices or that it could not reasonably accommodate the employee without undue hardship.” Id. It is uncontested that (1) Plaintiff sincerely believes that his religion prevents him from providing a social security number, (2) Plaintiff informed Defendant of his belief, and (3) Defendant refused to hire Plaintiff because he did not provide Defendant with a social security number. Nevertheless, Defendant argues, and the district court held, that" }, { "docid": "16976596", "title": "", "text": "court further held that Oak reasonably accommodated Cooper’s beliefs by offering her the options of using vacation days to avoid working full production Saturdays, or trading shifts to avoid working during the day on Saturday. Finally, the district court concluded that Oak could not have relieved Cooper of all Saturday work responsibility without suffering undue hardship, i.e., the need to hire another employee or a resulting loss of production. II. Title VII makes it unlawful for an employer 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 ... religion[J” 42 U.S.C. § 2000e-2(a). The term religion includes all aspects of religious observance and practice, “unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). The employee bears the burden of establishing a prima facie case, and sustains that burden by showing that he holds a sincere religious belief that conflicts with an employment requirement; that he has informed his employer of the conflict; and that he was discharged or disciplined for failing to comply with the conflicting requirement. Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir.1987), cert. denied, 485 U.S. 989, 108 S.Ct. 1293, 99 L.Ed.2d 503 (1988). Once a prima facie case is established, the burden shifts to the employer to show that it could not reasonably accommodate the employee without undue hardship. The reasonableness of an employer’s attempt to accommodate is determined on a ease-by-ease basis. If the employer’s efforts fail to eliminate the employee’s religious conflict, the burden remains on the employer to establish that it is unable to reasonably accommodate the employee’s beliefs without incurring undue hardship. Id. To require an employer to bear more than a de minimis cost in order to accommodate an employee’s religious beliefs is an undue hardship. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 2277, 53 L.Ed.2d 113 (1977). The district court’s" }, { "docid": "22261919", "title": "", "text": "and share religious beliefs with employees” unless and until those employees requested accommodation of their beliefs, and that Venters relinquished any right she may have had to be free of Ives’ onslaughts by failing to make her own religious views known. (Appellees’ Br. at 33-34.) Venters, however, argues that her discharge was motivated by the fact that she did not belong to Ives’ church and did not subscribe to his particular view of Christianity. Under Title VII, Venters contends, membership in a particular church or adherence to a set of religious beliefs cannot be made a condition of retaining one’s employment. Moreover, by drawing an analogy between her ease and those involving sexual harassment, Venters also argues that Ives’ treatment of her prior to her discharge created an intimidating and offensive environment which altered the conditions of her employment, and thus amounted to religious harassment under Title VII. a. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., provides that [“i]t shall be an unlawful employment practice for an employer ... 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 ... religion....” 42 U.S.C. § 2000e-2(a)(l). The term “religion” is defined to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). Thus, where an employee alleges religious discrimination on the ground that she was unable to fulfill a job requirement due to her religious beliefs or observances, we have held that a prima facie case requires the employee to demonstrate that the belief or observance was religious in nature, that she called it to the attention of her employer, and that the religious belief or observance was the basis of her discharge or other discriminatory treatment. E.E.O.C. v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir.1997); Beasley" }, { "docid": "19027716", "title": "", "text": "F.3d 120, 126 (3d Cir.2002) (internal citations omitted). II. Title VII of the 1964 Civil Rights Act prohibits employers from discharging or disciplining an employee based on his or her religion. 42 U.S.C. § 2000e-2(a)(l). “Religion” is defined as “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). To establish a prima facie case of religious discrimination, the employee must show: (1) she holds a sincere religious belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement. Shelton, 223 F.3d at 224. Once all factors are established, the burden shifts to the employer to show either it made a good-faith effort to reasonably accommodate the religious belief, or such an accommodation would work an undue hardship upon the employer and its business. Id. Title VII religious discrimination claims often revolve around the question of whether the employer can show reasonable accommodation would work an undue hardship. United States v. Bd. of Educ., 911 F.2d 882, 886 (3d Cir.1990). An ac commodation constitutes an “undue hardship” if it would impose more than a de minimis cost on the employer. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). Both economic and non-economic costs can pose an undue hardship upon employers; the latter category includes, for example, violations of the seniority provision of a collective bargaining agreement and the threat of possible criminal sanctions. Id. at 83; Bd. of Educ., 911 F.2d at 891. We focus on the specific context of each case, looking to both the fact as well as the magnitude of the alleged undue hardship. Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 134 (3d Cir.1986) (evaluating Volkswagen’s claim of undue hardship when asked to accommodate a worker whose religious beliefs required her not to work on" }, { "docid": "7598224", "title": "", "text": "the time of trial. By October of 1992, Tiano’s salary was as much as or more than her salary had been at Dillard’s. After the Equal Employment Opportunity Commission issued a determination that Ti-ano had been a victim of religious discrimination, Tiano sued Dillard’s in district court. She alleged that Dillard’s had violated Title VII when it terminated her because of her pilgrimage. Dillard’s claimed that Tiano did not have a sincerely-held religious belief, that it attempted to accommodate any belief she did have, and that accommodation would cause undue hardship. The district court found for Tiano and awarded her damages of $16,445.65. This award reflected lost wages incurred in 1988 and 1989 less any salary or unemployment benefits received. The court found that Tiano faded to mitigate her damages after January of 1990 because she accepted employment in a different field, floral design. These appeals followed. STANDARD OF REVIEW We review de novo whether a plaintiff has satisfied the elements of a prima facie case of religious discrimination, but review the underlying facts for clear error. See Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir.1993). DISCUSSION Title VII makes it an unlawful employment practice for an employer “to discharge any individual ... because of such individual’s ... religion.” 42 U.S.C. § 2000e-2(a)(1). Title VII defines “religion” to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” § 2000e(j). This court has established a two-part framework to analyze Title VII religious discrimination claims. See Heller, 8 F.3d at 1438. First, the employee must establish a prima facie case by proving that (1) she had a bona fide religious belief, the practice of which conflicted with an employment duty; (2) she informed her employer of the belief and conflict; and (3) the employer threatened her or subjected her to discriminatory treatment, including discharge, because of her inability to fulfill the job requirements. See id." }, { "docid": "14794024", "title": "", "text": "Proctor filed a timely complaint in district court for violation of Title VII. The court granted summary judgment for Consolidated, apparently relying upon the magistrate’s Findings and Recommendation. The magistrate found that Consolidated had a duty to make a reasonable accommodation of Proctor’s religious beliefs even after Proctor became a balancing clerk; nevertheless, he concluded that Consolidated had made an adequate showing that accommodation could not be accomplished without undue hardship for Consolidated, and that no triable issues of material fact remained. II. STANDARD OF REVIEW This court reviews a district court’s grant of summary judgment de novo, in the light most favorable to the nonmoving party, to determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986). III. FAILURE TO INITIATE GOOD FAITH EFFORTS TO ACCOMMODATE PROCTOR’S RELIGIOUS BELIEFS Title 42 of the United States Code, section 2000e-2(a)(l) prohibits an employer from failing to hire, refusing to hire, or discharging any individual because of her religion. The term “religion” is defined as follows: The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business. 42 U.S.C. § 2000e(j). To establish a prima facie case of religious discrimination under §§ 2000e-2(a)(1) and (j), the plaintiff has the burden of pleading and proving that (1) she had a bona fide religious belief; (2) she informed her employer of her religious views and that they were in conflict with her responsibilities as an employee; and (3) she was discharged because of her observance of that belief. Anderson v. General Dynamics Convair Aerospace Division, 589 F.2d 397, 401 (9th Cir.1978), cert. denied, 442 U.S. 921, 99 S.Ct. 2848, 61 L.Ed.2d 290 (1979). The plaintiff is not required to show as part of her prima facie case that she made efforts to compromise her religious beliefs before seeking an" }, { "docid": "21957896", "title": "", "text": "she was terminated because of her sex or race”) (quoting Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1037 (10th Cir.1993)) (internal quotation marks omitted). The McDonnell Douglas framework first requires the plaintiff to establish a prima facie case of religious discrimination. Klein, 869 F.Supp. at 7; Rasul v. District of Columbia, 680 F.Supp. 436, 439 (D.D.C.1988) (applying McDonnell Douglas test to Title VII claim of religious discrimination). Once a prima facie case has been established, the burden shifts to the defendant to provide “some legitimate, non-discriminatory reason for the [adverse employment actions], and to produce credible evidence supporting its claim.” Johnson v. Dong Moon Joo, No. 01-0004, 2006 WL 627154, * 19 (D.D.C. Mar.12, 2006) (citation omitted) (applying McDonnell Douglas to claim of religious discrimination under Title VII, Section 1981, and the DCHRA). If the defendant successfully carries this burden, the plaintiff must then “show that [the defendant’s proffered reason was not the true reason for the employment decision.” Id. (citation omitted). Title VII also has a separate provision prohibiting an employer from discriminating on the basis of an individual’s religion “unless [the] employer demonstrates that he is unable to reasonably accommodate to an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j) (2000). As the Supreme Court has explained, this provision makes it “an unlawful employment practice ... for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). Moreover, Title VII’s reasonable accommodations provision is not governed by the McDonnell Douglas framework. See, e.g., Baker v. Home Depot, 445 F.3d 541, 546 (2d Cir.2006). Although the Supreme Court has declined to articulate a framework for cases in which an employer has allegedly failed to accommodate an employee’s religious beliefs under Title VII, Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 67, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986), other Circuits have stated that plaintiffs claiming religious" }, { "docid": "22261921", "title": "", "text": "v. Health Care Serv. Corp., 940 F.2d 1085, 1088 (7th Cir.1991). Yet this paradigm only establishes the elements of a prima facie case of one particular type of religious discrimination that may arise in the workplace, and was never intended to apply to all possible claims of religious discrimination without regard to their underlying facts. We agree with our colleagues in the Tenth Circuit that the accommodation framework on which the district court relied has no application when the employee alleges that he was fired because he did not share or follow his employer’s religious beliefs. Shapolia v. Los Alamos National Laboratory, 992 F.2d 1033, 1037 (10th Cir.1993). Again, properly understood, Venters’ claim is not that the city refused to accommodate her religious practices in some way, but that she was discharged because she did not measure up to Ives’ religious expectations. What matters in this context is not so much what Venters’ own religious beliefs were, but Ives’ asserted perception that she did not share his own. See id. at 1037, 1038. She need not put a label on her own religious beliefs, therefore, or demonstrate that she communicated her religious status and needs as she would if she were complaining that the city had failed to accommodate a particular religious practice. Venters need only show that her perceived religious shortcomings (her unwillingness to strive for salvation as Ives understood it, for example) played a motivating role in her discharge. 42 U.S.C. § 2000e-2(m). In that sense, Venters’ Title VII claim presents a very straightforward question no different in kind from that presented in the familiar eases of race, sex, and age discrimination. Shapolia, 992 F.2d at 1037. Simply put, “the question ... is whether the plaintiff has established a logical reason to believe that the decision [to terminate her] rests on a legally forbidden ground.” Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158-59 (7th Cir.1996) (per curiam). As in any other discriminatory discharge case, the plaintiff can establish that she was discharged on the basis of her religion through direct or indirect means. E.g., Bahl v. Royal" }, { "docid": "14794025", "title": "", "text": "her religion. The term “religion” is defined as follows: The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business. 42 U.S.C. § 2000e(j). To establish a prima facie case of religious discrimination under §§ 2000e-2(a)(1) and (j), the plaintiff has the burden of pleading and proving that (1) she had a bona fide religious belief; (2) she informed her employer of her religious views and that they were in conflict with her responsibilities as an employee; and (3) she was discharged because of her observance of that belief. Anderson v. General Dynamics Convair Aerospace Division, 589 F.2d 397, 401 (9th Cir.1978), cert. denied, 442 U.S. 921, 99 S.Ct. 2848, 61 L.Ed.2d 290 (1979). The plaintiff is not required to show as part of her prima facie case that she made efforts to compromise her religious beliefs before seeking an accommodation from her employer. Id. at n. 3. There is no dispute in the instant case that Proctor established a prima facie case of discrimination. She showed that (1) she had a bona fide belief that working on Saturday was contrary to her religious faith; (2) she informed Consolidated of her religious views and their conflict with working overtime scheduled on Saturdays; and (3) she was discharged for her failure to show up for work on Saturday. Once the employee has established a prima facie case, the burden shifts to the employer to prove that it made good faith efforts to accommodate the employee’s religious beliefs. Anderson, 589 F.2d at 401. The burden, to undertake initial steps toward accommodation rests upon the employer, not the employee. Id. In Burns v. Southern Pacific Transportation Co., 589 F.2d 403 (9th Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979), the companion case to Anderson, we noted that Title VII was designed to change prior case law condoning the failure of an employer to" }, { "docid": "13755571", "title": "", "text": "plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.”) (emphasis in original). We review the district court’s ruling on summary judgment de novo. Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir.2001). Title VII forbids a labor organization “to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his ... religion....” 42 U.S.C. § 2000e-2(c)(l). The statute defines the term “religion” to include: “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” Id. § 2000e(j). Thus, in general terms, Title VII requires employers and labor organizations to accommodate, within reasonable limits, the bona fide religious beliefs and practices of employees. In order to establish a prima facie case of religious discrimination based on a failure to accommodate, the plaintiff must show that “(1) a bona fide religious practice conflicts with an employment requirement, (2) he or she brought the practice to the [Union’s] attention, and (3) the religious practice was the basis for the adverse employment decision.” EEOC v. United Parcel Serv., 94 F.3d 314, 317 (7th Cir.1996); see also Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir.) (per curiam), cert. denied, 531 U.S. 895, 121 S.Ct. 226, 148 L.Ed.2d 160 (2000). Once the plaintiff has established this prima facie case, the burden shifts to the union to show that it made a reasonable accommodation of the religious practice or show that any accommodation would result in undue hardship. Seaworth, 203 F.3d at 1057; Tiano v. Dillard Dep’t Stores, Inc., 139 F.3d 679, 682 (9th Cir.1998). UIA argues that the district court erroneously granted summary judgment where there remained disputed issues of fact with respect to the question of whether Cruz’s objection to union membership was the product of a “bona fide religious" }, { "docid": "3613454", "title": "", "text": "Title VII states, in pertinent part, that “it shall be an unlawful employment practice for an employer (1) to ... discharge any individual ... because of such individual’s religion_” 42 U.S.C. § 2000e-2(a). Religion is defined as follows: The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business. 42 U.S.C. § 2000e(j). “The obligation to accommodate includes efforts to accommodate those employees who refuse to work on particular days of the week because of their religious beliefs.” Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir.1987). Analysis of a Title VII claim of religious discrimination uses a burden shifting analysis based on McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must demonstrate a prima facie ease which raises a presumption that he was the victim of discrimination. This presumption is rebutted by the defendant demonstrating that it offered a reasonable accommodation to the plaintiff or that it could not reasonably accommodate the plaintiffs religious conflict without undue hardship. Cooper v. Oak Rubber Co., 15 F.3d 1375, 1378 (6th Cir.1994). Undue hardship is an easier standard than its name might suggest; any accommodation that results in more than de minimis costs to the defendant creates undue hardship. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 2277, 53 L.Ed.2d 113 (1977). To establish a prima facie case, the plaintiff must prove: “(1) he holds a sincere religious belief that conflicts with an employment requirement; (2) he has informed the employer about the conflicts; and (3) he was discharged or disciplined for failing to comply with the conflicting employment requirement.” Pyro Mining Co., 827 F.2d at 1085. In the present case, the defendants argue that the plaintiff has failed to demonstrate any of these three elements. First, the defendants argue that plaintiff has failed to demonstrate a sincere belief in Judaism and" }, { "docid": "7089275", "title": "", "text": "at 324, 106 S.Ct. 2548. As the Anderson Court explained, the “mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. B. Applicable Law in General Title VII provides in pertinent part that “[i]t shall be an unlawful employment practice for an employer—(1) to fail or refuse to hire or to discharge any individual, or otherwise to discrimination against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... religion ....” 42 U.S.C. § 2000e-2(a)(l). “Religion” includes “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” Id. § 2000e(j). Courts have recognized that employees may utilize two theories in asserting religious discrimination claims. These theories are termed the “disparate treatment” and “failure to accommodate” theories. See Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir.), cert. denied, 522 U.S. 813, 118 S.Ct. 58, 139 L.Ed.2d 21 (1997). In a religious accommodation case, the category into which the instant case falls, an employee may establish a claim even though she is unable to (1) demonstrate that other employees were treated more favorably or (2) rebut an employer’s legitimate, nondiscriminatory reason for her discharge. This is because, as the “failure to accommodate” theory recognizes, an employer must, to an extent short of undue hardship, actively attempt to accommodate an employee’s religious beliefs, expression, or conduct even if, absent the religious motivation, the employee’s behavior would supply a legitimate ground for discharge. C. Prima Facie Requirements for a Title VII Religious Accommodation Claim To establish a prima facie religious accommodation claim, Ms. Baltgalvis must establish that (1) she has a bona fide reli gious belief that conflicts with an employment requirement; (2) she informed NNS of this belief; and (3) she" }, { "docid": "7598225", "title": "", "text": "clear error. See Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir.1993). DISCUSSION Title VII makes it an unlawful employment practice for an employer “to discharge any individual ... because of such individual’s ... religion.” 42 U.S.C. § 2000e-2(a)(1). Title VII defines “religion” to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” § 2000e(j). This court has established a two-part framework to analyze Title VII religious discrimination claims. See Heller, 8 F.3d at 1438. First, the employee must establish a prima facie case by proving that (1) she had a bona fide religious belief, the practice of which conflicted with an employment duty; (2) she informed her employer of the belief and conflict; and (3) the employer threatened her or subjected her to discriminatory treatment, including discharge, because of her inability to fulfill the job requirements. See id. Second, if the employee proves a prima facie case of discrimination, the burden shifts to the employer to show either that it initiated good faith efforts to accommodate reasonably the employee’s religious practices or that it could not reasonably accommodate the employee without undue hardship. See id.; E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1512 (9th Cir.1989). The district court found that Tiano established a prima facie ease of religious discrimination and that Dillard’s failed to show either that it made a good faith effort to accommodate her belief or that undue hardship would result. Because we find that the district court erred in determining that Tiano established a prima facie case, we need not discuss reasonable accommodation or undue hardship. The district court concluded that Tiano’s bona fide religious belief included a temporal mandate. Thus, the court interpreted her religious belief to be a need to go on a pilgrimage to Medjugorje between October 17 and 26, rather than a need to go to Medjugorje generally at some point in time. After a review" }, { "docid": "2436887", "title": "", "text": "as to all public contact employees. Because we disagree with the district court’s conclusions regarding Patel’s case, we need not address the question whether the EEOC may make out a prima facie case of religious discrimination without identifying at least one victim. Is it enough for the EEOC to present evidence of a categorical policy which does not leave room for reasonable accommodation? Or, in the alternative, must the EEOC prove, either by anecdotal or statistical evidence, that someone was adversely affected by the policy? We need not resolve this issue here. I. Background Title VII provides that it is unlawful to refuse to hire or promote “any individual ... beeause of such individual’s ... religion....” 42 U.S.C. § 2000e-2. Because some religious practices may be incompatible with performance of the job at hand, however, Title VII limits this proscription by defining religion in an unconventional way: (j) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business. 42 U.S.C. § 2000e(j). Here, the district court never reached the question whether allowing an exception for the wearing of a beard as a religious observance would cause undue hardship on the conduct of UPS’s business. Resolution of this question was unnecessary because the court determined that UPS made reasonable accommodation by offering comparable non-public-contact positions. An individual alleging religious discrimination must ordinarily show that: (1) a bona fide religious practice conflicts with an employment requirement, (2) he or she brought the practice to the employer’s attention, and (3) the religious practice was the basis for the adverse employment decision. Wright v. Runyon, 2 F.3d 214, 216 n. 4 (7th Cir.1993), cert. denied 510 U.S. 1121, 114 S.Ct. 1077, 127 L.Ed.2d 394 (1994). The EEOC may therefore make out its prima facie case by proving these elements with respect to some individual or individuals. The employer may respond to the prima facie case either by proving" }, { "docid": "1626821", "title": "", "text": "by Defendant. A. Establishing a Claim for Religious Discrimination Under Title VII Title VII of the Civil Rights Act of 1964, as amended in 1972, makes it unlawful for an employer to discriminate against an employee on the basis of religion. 42 U.S.C. § 2000e-2(a)(l). Specifically, the statute provides that it is unlawful for an employer 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 ... religion[.]” Id. The term “religion” as used within Title VII includes “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). “To require an employer to bear more than a de minimis cost in order to accommodate an employee’s religious beliefs is an undue hardship.” Cooper v. Oak Rubber Co., 15 F.3d 1375, 1378 (6th Cir.1994) (citing Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977)). “The analysis of any religious accommodation case begins with the question of whether the employee has established a prima facie case of religious discrimination.” Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir.1987). To establish a prima facie case, a plaintiff must demonstrate that 1) he holds a sincere religious belief that conflicts with an employment requirement; 2) he has informed the employer about the conflicts; and 3) he was discharged or disciplined for failing to comply with the conflicting employment requirement. Id. Once the plaintiff has established a prima facie case, the burden shifts to the defendant employer to show that it could not reasonably accommodate the employee without undue hardship. Id.; see also Cooper, 15 F.3d at 1378. “The reasonableness of an employer’s attempt to accommodate is determined on a case-by-case basis.” Cooper, 15 F.3d at 1378. B. Whether Plaintiff Established a Prima Facie Case of Religious Discrimination The district court found that" }, { "docid": "9863593", "title": "", "text": "PER CURIAM. Ron Seaworth appeals from the District Court’s order granting judgment on the pleadings in favor of defendants in this employment discrimination action. We affirm. In his complaint, Seaworth asserted that defendants discriminated against him because of his religious beliefs, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., when they refused to hire him unless he provided his social security number (SSN). Seaworth refuses to use an SSN because he claims it represents the “mark of the beast” as described in the Christian Bible’s Book of Revelation. To establish a prima facie case of religious discrimination under Title VII, Seaworth had to show (1) he had a bona fide religious belief that conflicted with an employment requirement; (2) Seaworth informed defendants of his belief; and (3) defendants did not hire Seaworth because he did not comply with the requirement. See Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1486 (10th Cir.1989), cert. denied, 495 U.S. 948, 110 S.Ct. 2208, 109 L.Ed.2d 535 (1990); cf. Wilson v. U.S. West Communications, 58 F.3d 1337, 1340 (8th Cir.1995) (elements of prima facie case of religious discrimination in disciplining employee). Once a plaintiff establishes a prima facie case, the burden shifts to the employer to show that accommodation would result in undue hardship to the employer. See Nobel-Sysco, Inc., 892 F.2d at 1486; Wilson, 58 F.3d at 1340; 42 U.S.C. § 2000e(j) (“ ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business”). Assuming, without deciding, that Seaworth established a bona fide religious belief, we agree with the District Court that the IRS, not defendants, imposed the requirement that Seaworth provide an SSN. See 26 U.S.C. § 6109. Thus, Sea-worth’s beliefs do not conflict with an employment requirement, see E.E.O.C. v. Allendale Nursing Centre, 996 F.Supp. 712, 717 (W.D.Mich.1998) (requirement that employee obtain SSN is requirement imposed by law, not employment" }, { "docid": "22261920", "title": "", "text": "for an employer ... 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 ... religion....” 42 U.S.C. § 2000e-2(a)(l). The term “religion” is defined to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). Thus, where an employee alleges religious discrimination on the ground that she was unable to fulfill a job requirement due to her religious beliefs or observances, we have held that a prima facie case requires the employee to demonstrate that the belief or observance was religious in nature, that she called it to the attention of her employer, and that the religious belief or observance was the basis of her discharge or other discriminatory treatment. E.E.O.C. v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir.1997); Beasley v. Health Care Serv. Corp., 940 F.2d 1085, 1088 (7th Cir.1991). Yet this paradigm only establishes the elements of a prima facie case of one particular type of religious discrimination that may arise in the workplace, and was never intended to apply to all possible claims of religious discrimination without regard to their underlying facts. We agree with our colleagues in the Tenth Circuit that the accommodation framework on which the district court relied has no application when the employee alleges that he was fired because he did not share or follow his employer’s religious beliefs. Shapolia v. Los Alamos National Laboratory, 992 F.2d 1033, 1037 (10th Cir.1993). Again, properly understood, Venters’ claim is not that the city refused to accommodate her religious practices in some way, but that she was discharged because she did not measure up to Ives’ religious expectations. What matters in this context is not so much what Venters’ own religious beliefs were, but Ives’ asserted perception that she did not share his own. See id. at 1037, 1038. She need" }, { "docid": "16976595", "title": "", "text": "Cooper’s resignation, Oak hired an additional 18 glove strippers/packers, enhancing its ability to maintain production despite work absences. B. Cooper filed suit under Title VII, claiming that she was disciplined and constructively discharged because she adhered to her sincere religious beliefs against working on the Sabbath, and claiming further that Oak had not accommodated her religious beliefs and could accommodate her beliefs without undue hardship. Following a two-day bench trial, the district court made its findings of fact and conclusions of law, dismissing Cooper’s suit on a number of independent bases. The district court held that Cooper had not established a prima facie case of religious discrimination because she had not demonstrated that she had a sincerely held religious belief that was in conflict with a Saturday work requirement, and because she was not constructively discharged from employment. The court found that Cooper could have avoided discharge by using her accrued vacation days to avoid Saturday work, and held that a reasonable employee would have used her accrued vacation days rather than resign. The district court further held that Oak reasonably accommodated Cooper’s beliefs by offering her the options of using vacation days to avoid working full production Saturdays, or trading shifts to avoid working during the day on Saturday. Finally, the district court concluded that Oak could not have relieved Cooper of all Saturday work responsibility without suffering undue hardship, i.e., the need to hire another employee or a resulting loss of production. II. Title VII makes it unlawful for an employer 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 ... religion[J” 42 U.S.C. § 2000e-2(a). The term religion includes all aspects of religious observance and practice, “unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). The employee bears the burden of establishing a prima facie case, and sustains that burden by showing that he holds a" }, { "docid": "20641170", "title": "", "text": "... discharge any individual, or otherwise ... discriminate against any individual with respect to his compensation,' terms, conditions, or privileges of employment, because of such individual’s ... religion.” 42 U.S.C. § 2000e-2(a)(1). Title VII provides that “[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). In brief, it is “an unlawful employment practice ... for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees.” Trans World Airlines. Inc. v. Hardison, 432 U.S. 63, 74, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). As correctly observed by the District Court, all plaintiffs who seek to make out a prima facie case of religious discrimination must show that “(1) they held a bona fide religious belief conflicting with an employment requirement; (2) they informed their employers of this belief; and (3) they were disciplined for failure to comply with the conflicting employment requirement.” Knight v. Conn. Dep’t of Pub. Health, 275 F.3d 156, 167 (2d Cir.2001). Once a prima facie case is established by the employee, the employer “must offer [him or her] a reasonable accommodation, unless doing so would cause the employer to suffer an undue hardship.” Cosme v. Henderson, 287 F.3d 152, 158 (2d Cir.2002). Although Home Depot supports the District Court’s determination that it had offered Baker a reasonable accommodation, Home Depot insists on appeal, as it did in the District Court, that Baker cannot even make a prima facie showing of discrimination. It urges us to affirm on this ground, noting that we are “free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.” Gmurzynska v. Hutton, 355 F.3d 206, 210 (2d Cir.2004) (internal quotation marks omitted). In contending that Baker cannot present a prima" } ]

[ { "docid": "22727503", "title": "", "text": "and administered by the NLRB of necessity subordinates the interests of an individual employee to the collective interests of all. employees in a bargaining unit,” Vaca v. Sipes, 386 U. S. 171, 182 (1967), the controlling statutes have long beén interpreted as imposing upon the bargaining agent a responsibility equal in scope to its authority, “the responsibility and duty of fair representation.” Humphrey v. Moore, supra, at 342. The union as the statutory representative of the employees is “subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Ford Motor Co. v. Huffman, supra, at 338. Since Steele v. Louisville & N. R. Co., 323 U. S. 192 (1944), with respect to the railroad industry, and Ford Motor Co. v. Huffman, supra, and Syres v. Oil Workers, 350 U. S. 892 (1955), with respect to those industries reached by the National Labor Relations Act, the duty of fair representation has served as a “bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Vaca v. Sipes, supra, at 182. Claims of union breach of duty may arise during the life of a contract when individual employees claim wrongful discharge or other improper treatment at the hands of the employer. Contractual remedies, at least in their final stages controlled by union and employer, are normally provided; yet the union may refuse to utilize them or, if it does, assertedly may do so discriminatorily or in bad faith. “The problem then is to determine under what circumstances the individual employee may obtain judicial review of his breach-of-contract claim despite his failure to secure relief through the contractual remedial procedures.” Vaca v. Sipes, supra, at 185. Humphrey v. Moore, supra, involved a seniority dispute between the employees of two transportation companies whose operating authorities had been combined. The employees accorded lesser seniority were being laid off. Their grievances were presented to the company and taken by the union to the joint arbitration committee pursuant to contractual provisions very similar to those now before us. The decision" } ]

[ { "docid": "1524224", "title": "", "text": "Anchor Motor Freight, Inc., 424 U.S. 554, 562, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). However, the courts temper the exercise of their jurisdiction in such suits to give full play to procedures established in collective bargaining agreements for the settlement of employee grievances. This policy is mandated by the declaration of Congress that “[f]inal adjustment by a method agreed upon by the parties is . the desirable method for settlement of grievance disputes . . . 29 U.S.C. § 173(d). To effectuate that policy, the Supreme Court has held that a suit by an employee who has sidestepped the grievance machinery provided in a collective bargaining agreement must be dismissed by the district court. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). The Court has also declared that, where an employee’s grievance has been submitted to arbitration in accordance with a procedure chosen by the parties, the district court ordinarily may not review the merits of the arbitration award. Hines v. Anchor Motor Freight, Inc., supra at 563, 96 S.Ct. 1048. This policy of noninterference with contractual grievance procedures, however, has limits. The adequacy of such procedures as a method of resolving employee grievances depends in essential part on the union’s fair representation of the employee in his dispute with the employer. The union breaches its duty of fair representation when its conduct toward the member is “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). A breach of that duty relieves the employee of any “express or implied requirement that disputes be settled through contractual procedures . . ..\" Hines v. Anchor Motor Freight, Inc., supra at 567, 96 S.Ct. at 1058. Moreover, even if the grievance has been taken to arbitration, the union’s breach removes any contractual finality of the arbitration decision “if it seriously undermines the integrity of the arbitral process.” Id. Under the express terms of the collective bargaining agreement, Harrison was bound by the final decision of the Appeal Board denying him back pay. He" }, { "docid": "13247510", "title": "", "text": "does not limit who may bring a suit against a public employer or a union, nor does it indicate whether there are any procedural prerequisites to the bringing of a § 383 suit. Under general principles of labor law, an employee’s only remedy for a breach of contract by an employer is the grievance and arbitration procedure provided by his collective bargaining agreement. See DelCostello, 462 U.S. at 163, 103 S.Ct. at 2289. However, when that employee has no control over his grievance during the arbitration process and the union representing the employee breaches its duty to fairly represent him, the employee by necessity has a cause of action to pursue his rights under the contract. See Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 572, 96 S.Ct. 1048, 1060, 47 L.Ed.2d 231 (1976). “In such an instance, an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding.” DelCostello, 462 U.S. at 164, 103 S.Ct. at 2290. Therefore, based on DelCostello, Vaca, and Hines, we conclude that an employee proceeding under PELRA § 383 must bring both a claim against the public employer for breach of contract and a claim against the union for breach of fair representation simultaneously. “The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both.” DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. Section 383 itself does not contain or expressly incorporate a statute of limitations. We must therefore look to see whether any other statute of limitations within the body of Virgin Islands law expressly applies to this action. Because § 383 is patterned after § 301 of the LMRA, 29 U.S.C.A. § 185 (West 1978), it would normally be appropriate to analogize from case law under § 301 in interpreting that section. Crispin v. Government of the Virgin Islands, Civil No. 1987/119, slip op." }, { "docid": "4440737", "title": "", "text": "unfair representation by the Union take his case out of that portion of the statutory scheme which commands resort to the Board. He argues that since he attempted to, but was foreclosed from, resort to the procedures contemplated by Sections 2 and 3 of the RLA, he may now maintain a legal action against Conrail for his wrongful discharge. The appellant largely bases his argument upon Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), and its progeny. There, in an action under the Labor Management Relations Act (LMRA), 29 U.S.C. § 141, et seq., the Supreme Court established the rule that: ... the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance. 386 U.S. at 185, 186, 87 S.Ct. at 914 (emphasis added). The appellant contends that this principle can, and should be, extended to actions under the RLA. Conrail disagrees. Conrail contends that the Faca line of cases, and the principle they establish, are inapplicable in the RLA context. Conrail points out that the LMRA and the RLA are distinct statutory schemes, with those covered by the latter being explicitly exempted from the provisions of the LMRA. More specifically, Conrail notes (1) that § 301 of the LMRA explicitly creates a federal cause of action for employer-employee disputes, while the RLA contains no such provision, (2) the National Labor Relations Board is a body available for voluntary resort to arbi tration (thereby waiving the right to first invoke § 301) while the National Railroad Adjustment Board is a statutorily-created arbitration forum, and (3) unlike the LMRA, the RLA permits a grievant to personally seek redress through that arbitration process. It is Conrail’s position that to allow Kaschak to pursue his grievance in court would be to impermissibly extend federal jurisdiction, to ignore the mandatory grievance features of the RLA and to blur the difference between" }, { "docid": "23484513", "title": "", "text": "count I, the court found the arbitral decision upholding the discharge to be binding and unreviewable. 409 F.Supp. at 131. The fair representation and conspiracy claims in counts II and III were held barred by Michigan’s three-year statute of limitations applicable to tort actions. Id. at 132. In this appeal, Appellant maintains that none of the counts should have been dismissed. We deal first with the holding below that counts II and III were time-barred. The District Court properly read the complaint as alleging jurisdiction under § 301 of the Labor Management Relations Act (LMRA or the Act), 29 U.S.C. § 185, which provides federal jurisdiction for suits by individual employees alleging wrongful discharge under a collective bargaining agreement and for included claims of union breach of fair representation duty. See Hines v. Anchor Motor Freight, 424 U.S. 554, 562, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 186-87, 87 S.Ct. 963, 17 L.Ed.2d 842 (1967). The timeliness of actions under § 301 is determined by reference to the appropriate state statute of limitations. UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). Here, we look to the law of Michigan, which is both the forum state and the state in which the operative events occurred. See id. at 705 n. 8, 86 S.Ct. 1107. Michigan courts apply a three-year limitation period to actions for breach of the duty of fair representation brought in conjunction with wrongful discharge claims. Glowacki v. Motor Wheel Corp., 67 Mich.App. 448, 241 N.W.2d 240, 246-48 (1976); Washington v. Chrysler Corp., 68 Mich.App. 374, 242 N.W.2d 781, 782 (1976). The same limitation period is applied to related claims of conspiracy between an employer and a union. Glowacki v. Motor Wheel Corp., 67 Mich.App. 448, 241 N.W.2d 240, 245-48 (1976). See also Field v. Local 652, UAW, 6 Mich.App. 140, 148 N.W.2d 552 (1967). In this case, the breach of fair representation duty (count II) and conspiracy (count III) claims were first filed on June 17, 1974, over three years after final rejection of" }, { "docid": "23176237", "title": "", "text": "(7th Cir.1990); Fed. R.Civ.P. 56(c). In reviewing this grant of summary judgment, we will view the facts in the light most favorable to the plaintiffs, the nonmoving party. A-Abart Elec. Supply Inc. v. Emerson Elec. Co., 956 F.2d 1399, 1401-02 (7th Cir.1992). B. Relationship Between Contract Claim and Duty of Fair Representation Claims The plaintiffs claim that the Steelworkers Union breached its duty of fair representation in the negotiation, ratification and arbitration processes. This claim is brought under Section 301 of the Labor-Management Relations Act (“LMRA”). See 29 U.S.C.A. § 185. The plaintiffs’ claim against Schwitzer is also brought under Section 301 of the LMRA. See id. This claim is based on breach of the Collective Bargaining Agreement (“CBA”). Article 31 of the CBA, however, requires that employee grievances should be resolved through union/company meetings and that the final step in the grievance process should be binding arbitration. “Courts are not to usurp those functions which collective-bargaining contracts have properly ‘entrusted to the arbitration tribunal.’ ” Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562-63, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976) (citing Steelworkers v. American Mfg. Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 1345, 4 L.Ed.2d 1403 (1960)). Accordingly, federal courts should review allegations that an employer breached a collective bargaining agreement that con tains an arbitration clause only when the employee can prove that “ ‘the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.’ ” Id. at 566, 96 S.Ct. at 1057 (citing Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967)). Therefore, in order to prevail against Schwitzer, the plaintiffs must show that the Steelworkers Union breached its duty to fairly represent the employees in the arbitration process, and it must show that Schwitzer breached the CBA. Because employees choose their bargaining representative, and because most collective agreements contain mechanisms for resolving employee grievances, courts should be reluctant to construe as a matter of law collective bargaining agreements when evaluating whether a union has violated its duty of fair" }, { "docid": "11608949", "title": "", "text": "MEMORANDUM and ORDER ELFVIN, District Judge. Plaintiff commenced this action pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, alleging that he was wrongfully discharged and that a subsequent decision rendered by a joint arbitration committee upholding such discharge was improper and should be vacated. Defendant has moved to dismiss on the grounds that plaintiff’s complaint is time-barred by CPLR § 7511(a) and that it does not state a claim upon which relief can be granted because it fails to allege breach of the duty of fair representation. Plaintiff submits that CPLR § 213(2) is the appropriate statute of limitations and moves for leave to amend his complaint. A union has a duty to represent employees fairly, honestly and in good faith throughout the grievance and arbitration process. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). It is well settled that in a Section 301 action seeking to vacate a joint arbitration committee’s decision, the employee must allege and prove not only that his discharge was contrary to the contract but also that the union breached its duty of fair representation. Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). Failure to allege a breach of such duty — i. e., that the union’s actions were arbitrary, discriminatory or in bad faith — is fatal to an employee’s suit under Section 301 seeking damages against his former employer for his allegedly wrongful discharge. Hubicki v. ACF Industries, Inc., 484 F.2d 519 (3d Cir. 1973); Lomax v. Armstrong Cork Company, 433 F.2d 1277 (5th Cir. 1970). Where a complaint fails to allege that the union has engaged in any wrongdoing or has failed properly to represent the employee, the claim must be dismissed. Alfieri v. General Motors Corp., 367 F.Supp. 1393 (W.D.N.Y.1973), aff’d, 489 F.2d 731 (2d Cir. 1973). In the instant case, plaintiff’s original complaint does not allege that he was inadequately represented by the union during the grievance and arbitration process. It merely alleges that the defendant employer joined in an arbitration proceeding" }, { "docid": "14357165", "title": "", "text": "OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge. Under section 301 of the National Labor-Management Relations Act of 1947 (“the NLMRA”), an individual employee may bring an action charging his employer with breach of the collective bargaining agreement, and his union with violating its duty of . fair representation in mishandling the ensuing grievance. Vaca v. Sipes, 386 U.S. 171, 186-87, 87 S.Ct. 903, 914r-915, 17 L.Ed.2d 842 (1967); see Hines v. Anchor Motor Freight, 424 U.S. 554, 567, 96 S.Ct. 1048, 1057-1058, 47 L.Ed.2d 231 (1976). Neither section 301 nor any other section of the NLRMA expressly designates the statute of limitations applicable to such VacaHines actions. Appellant John T. Perez brought this Vaca-Hines suit against appellees Dana Corporation, Parish Frame Division (“the Company”) and United Steelworkers of America, Local Union No. 3733 (“the Union”). Perez alleged that the Company breached the collective bargaining agreement by discharging him, and that the Union violated its duty of fair representation by failing to pursue his grievance. The district court held that United Parcel Service v. Mitchell, 451 U.S. 56,101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), applied retroactively, and that Perez’s claims were barred by the thus-applicable Pennsylvania statute of limitations for vacation of arbitration awards. Perez v. Dana Corp., 545 F.Supp. 950 (E.D. Pa.1982). Perez now appeals. We hold that DelCostello v. International Brotherhood of Teamsters,-U.S.-, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), decided subsequent to Mitchell and during the pendency of this appeal, applies retroactively. Perez’s claims are thus barred by the six-month statute of limitations contained in section 10(b) of the National Labor Relations Act (“the NLRA”), 29 U.S.C. § 160 (1976). We will affirm on those grounds. I On September 12, 1979, Perez got into a brawl with a co-worker at the Company’s Reading, Pennsylvania facility. The Company suspended Perez pending determination of the appropriate penalty. Seeking to reverse the suspension, Perez filed a grievance pursuant to the applicable provisions of the collective bargaining agreement. A hearing on the grievance was held on September 27, 1979. On October 2, 1979, the Company converted the suspension into a" }, { "docid": "23484517", "title": "", "text": "in Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), that an employee denied reinstatement by an arbitration committee could still obtain judicial review of his wrongful discharge claim under § 301 of the LMRA if he could show that the arbitral process had been seriously undermined by the union’s failure to fairly represent him. Under such circumstances a union’s breach of duty “removes the bar of the finality provisions of the contract.” Id. at 567, 96 S.Ct. at 1058. We think that Appellant’s amended complaint stated a colorable § 301 claim for wrongful discharge under the standard enunciated in Hines. He alleged that his discharge was violative of the collective bargaining agreement and that the union’s breach of duty denied him a fair grievance proceeding. This was sufficient to withstand dismissal for failure to state a claim upon which relief could be granted. Cf. Desrosiers v. American Cyanamid Co., 377 F.2d 864, 870-71 (2d Cir. 1967). The fact that the arbitration committee had already decided against Appellant did not bar his federal action at the outset, since he properly alleged breach of the union’s duty of fair representation. Hines, 424 U.S. at 567, 96 S.Ct. 1048. Nor does it matter that the fair representation claim is barred by the statute of limitations. If Appellant’s representation by the union has in fact been fundamentally unfair, then the arbitral proceed ing is a nullity, and he is free to pursue his § 301 claim against the employer. See id. at 567-69, 96 S.Ct. 1048. Ellis argued below that the wrongful discharge claim was time barred. The argument was based on the contention that Appellant is actually seeking to set aside an arbitration award, and that the statute of limitations applicable to a claim for such relief is either three months under the United States Arbitration Act, 9 U.S.C. § 12, or twenty days under Michigan General Court Rules 769 dealing with arbitrations. 409 F.Supp. at 131. The District Court found it unnecessary to reach the issue, but Ellis presses it again before this Court. The" }, { "docid": "8921293", "title": "", "text": "the employee’s grievance.” Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967). This is so because failure to prove the union’s breach of fair representation gives rise to the employer’s successful defense of failure to exhaust contractual remedies. (Id. at 183-85, 87 S.Ct. at 913-14.) Thus, when faced with an action such as this where the employee sues both the union and employer based upon breach of the collective bargaining agreement, the first step in the analysis must be whether the union breached its duty of fair representation. If it is shown that the union fairly represented the employee throughout the grievance and in accordance with the terms of the collective bargaining agreement, then the claim against the employer for breach of the agreement necessarily falls. Cf. Capobianco v. Brink’s Inc., 543 F.Supp. 971, 975 n. 3 (E.D.N.Y.1982) (where facts show “employee was fairly represented by his union, the subsidiary claim under § 301 for relief from the arbitration award necessarily falls”), aff'd mem., 722 F.2d 727 (2d Cir.1983). i. The “Fair Representation” Claim Against Local 295. In order to prevail on a fair representation claim, the Second Circuit adheres to what has come to be known as the Vaca-Hines test, as follows: “Two elements must be proven for a breach of the duty of fair representation claim: The union’s conduct must, first, have been ‘arbitrary, discriminatory or in bad faith,’ Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967), and second, it must have ‘seriously undermine[d] the arbitral process.’ Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 96 S.Ct. 1048, 1058, 47 L.Ed.2d 231 (1976).” (Barr v. United Parcel Service, Inc., 868 F.2d 36, 43 [2d Cir.1989].) Negligence or “tactical errors” on the part of the union are insufficient to show a breach of the duty of fair representation {see id.), and “ ‘as long as the union acts in good faith, the courts cannot intercede on behalf of employees who may be prejudiced by rationally founded decisions which operate to their particular disadvantage.’ ”" }, { "docid": "18878229", "title": "", "text": "duty of representation. DISCUSSION Federal Claims Ordinarily a binding arbitration clause guarantees the finality of arbitration decisions and protects the employer against subsequent suits for breach of contract under LMRA § 301. However, where the discharged employee can show that his union breached its duty of representation, and that such breach undermined the integrity of the arbitral process itself, then the union’s breach removes the bar of the finality provision of the collective bargaining contract. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567-68, 96 S.Ct. 1048, 1057-1058, 47 L.Ed.2d 231 (1976). As the Court noted in Hines, “enforcement of the finality provision where the arbitrator has erred is conditioned upon the union’s having satisfied its statutory duty fairly to represent the employee in connection with the arbitration proceedings.” Id. at 571, 96 S.Ct. at 1059. To make out a claim that the union breached its duty of representation, the plaintiff must establish that the union’s actions were “arbitrary, discriminatory, or in bad faith,” that the grievance was processed in a “perfunctory fashion,” or that the union conduct was “intentional, severe, and unrelated to legitimate union objectives.” Amalgamated Association of Street, Electric Railway & Motor Coach Employees v. Lockridge, 403 U.S. 274, 299-301, 91 S.Ct. 1909, 1924-1925, 29 L.Ed.2d 473 (1971); Vaca v. Sipes, 386 U.S. 171, 190-91, 87 S.Ct. 903, 916-917, 17 L.Ed.2d 842 (1967); Jensen v. Farrell Lines, Inc., 658 F.2d 27 (2d Cir. 1981). Where the union has pursued the available grievance or arbitration procedure to a conclusion, as Local 445 has done in this case, the plaintiff must also establish that the union’s breach caused the arbitrator to reach an erroneous conclusion. That is, the plaintiff must show that there is “substantial reason to believe that [the union’s breach] contributed to the erroneous outcome of the contractual proceedings.” Hines v. Anchor Motor Freight, supra, 424 U.S. at 568, 96 S.Ct. at 1058. Because plaintiff has alleged that the Union breached its duty of fair representation and that the arbitrator reached an erroneous conclusion, the mere fact that there has been an arbitration award does not" }, { "docid": "21548824", "title": "", "text": "the CBA and an unfair labor practice. Both allegations fail but for different reasons: (1) the CBA breach cannot be brought against the employer because appellants have failed to show the Union breached its duty of fair representation; and (2) the unfair labor practice charge is preempted by NLRA §§ 7 and 8. A. Breach of the Duty of Fair Representation Appellants’ federal wrongful discharge claim is effectively a suit for breach of the CBA, and as such states a claim under LMRA § 301, 29 U.S.C. § 185(a). Federal courts have concurrent jurisdiction with the NLRB if an activity claimed to be an unfair labor practice also allegedly violates a collective bargaining agreement. Lumber Production Industrial Workers v. West Coast Industrial Relations Association, Inc., 775 F.2d 1042, 1045 (9th Cir.1985). However, an employee subject to a CBA who makes his or her union the exclusive bargaining agent must prove that the union breached its duty of fair representation before proceeding with a § 301 suit against the employer. Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 572, 96 S.Ct. 1048, 1060, 47 L.Ed.2d 231 (1976). Appellants have failed to make a case that the Union breached its duty of fair representation. Appellants’ two most likely grounds for showing a breach are first, the Union’s acceptance of a settlement rather than proceeding to arbitration; and second, appellants’ contention that the Union discriminates against maintenance workers, and in favor of drivers, in its handling of grievances. The first ground fails because of the great deference we accord unions’ handling of grievances. For a union to breach its duty of fair representation, its conduct in handling the grievance must be “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916; Peterson v. Kennedy, 771 F.2d 1244, 1253-54 (9th Cir.1985) (“We have never held that a union has acted in an arbitrary manner where the challenged conduct involved the union’s judgment as to how best to handle a grievance.”), cert." }, { "docid": "15671043", "title": "", "text": "Inc., supra, 424 U.S. at 567-68; Vaca v. Sipes, 386 U.S. 171 (1967). Regardless of whether an arbitration decision has been entered, the issue in a § 301 wrongful discharge action remains whether the employer has breached the collective bargaining contract and whether a union breach of duty contributed to the contractual breach. Hines v. Anchor Motor Freight, Inc., supra, 424 U.S. at 568. The mere fact that an arbitral decision has been rendered during the course of the employee termination process does not convert the character of a § 301 action from an action for breach of contract to an action for vacating an arbitration award. III. In summary, we reject the district court’s characterization of the instant § 301 action as an action to vacate an arbitration award, and accordingly reverse the district court’s dismissal of appellant’s complaint as barred by § 7511. We hold that New York’s six year limitation period for contractual breaches, § 213(2), is applicable to LMRA § 301 actions by employees alleging wrongful discharge by the employer and breach of the fair representation duty by the union — regardless of whether the discharge was upheld by an arbitral panel or became final short of arbitration. Applying the six year limitation period of § 213(2) provides for relatively rapid disposition of labor disputes without undermining an employee’s ability to vindicate his rights through § 301 actions. Thus, application of § 213(2), rather than § 7511, allows us to “best effectuate” the several federal policies implicated by actions under § 301. Reversed and remanded. . On appeal, appellees argue that the complaint was properly dismissed not only because it was time-barred, but also because appellant failed to exhaust his intra-union remedies and failed to raise a triable issue concerning appellee union’s alleged breach of its duty of fair representation. The district court, however, did not address these issues. We therefore shall not address them for the first time here. Appellees are free to raise these issues in the district court on remand. . Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185" }, { "docid": "23066381", "title": "", "text": "determination that the union breached its duty of fair representation. The plaintiff cross-appeals from a denial of his request for counsel fees. Because a union is authorized to act as the exclusive bargaining agent for its members, it has a duty to provide fair representation in the negotiation, administration, and enforcement of the collective bargaining agreement. A breach of that duty occurs when a union’s conduct toward a member is “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). The union must be accorded a “wide range of reasonableness” to enable it to perform effectively, but this discretion is subject to “good faith and honesty of purpose.” Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-64, 96 S.Ct. 1048, 1055-56, 47 L.Ed.2d 231 (1976) (citations omitted). When a collective bargaining agreement provides mandatory grievance machinery in which the employee’s rights are processed by union representation, the contractual requirements must be followed. Failure to exhaust those remedies may be a valid defense to a suit brought by an employee against his employer for a violation of the collective bargaining agreement. At trial, the employee must demonstrate that he did not receive fair representation from the union as well as proving his claim against the employer. Vaca v. Sipes, supra, 386 U.S. at 171, 87 S.Ct. at 907. These two elements must be established before the employee is entitled to relief under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1976). Thus, an employee’s claim against his employer for wrongful discharge may be meritorious, but he nevertheless cannot prevail in a federal court action unless he establishes a lack of fair representation. As the Court said in Hines v. Anchor Motor Freight, Inc., supra, 424 U.S. at 571, 96 S.Ct. at 1059, “[t]he grievance processes cannot be expected to be error-free. The finality provision has sufficient force to surmount occasional instances of mistake. But it is quite another matter to suggest that erroneous arbitration decisions must stand even though the employee’s representation by the union" }, { "docid": "10944957", "title": "", "text": "hearing was conducted by Joint Council No. 53, and a decision is still pending. DISCUSSION A. Section 301 Claims, Counts I and II. Section 301 of the Labor-Management Relations Act, 29 U.S.C. 185 provides that an individual employee may bring an action charging his employer with breach of the collective bargaining agreement and his union with violating its duty of fair representation in mishandling the resulting grievance. See Vaca v. Sipes, 386 U.S. 171, 186-87, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842 (1967); Hines v. Anchor Motor Freight, 424 U.S. 554, 567, 96 S.Ct. 1048, 1057, 47 L.Ed.2d 231 (1976). Neither section 301 nor any other section of the LMRA states the statute of limitations applicable to these so-called Vaca-Hines actions. The Supreme Court recently held in Del Costello v. International Broth, of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) that the statute of limitations to be applied to section 301 actions was the six month statute of limitations contained in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160 (1976). Del Costello, supra at 2293-94. Del Costello overruled United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981) which had held that the applicable statute of limitations was the 90 day statute of limitations contained in the Pennsylvania statute governing vacation of arbitration awards. Id., 103 S.Ct. at 2291. Subsequently, the Third Circuit Court of Appeals held that the ruling in Del Costello was to be applied retroactively and thus would bar any section 301 suit not brought within the six month statute of limitations. Perez v. Dana Corporation, 718 F.2d 581, 588, 114 L.R.R.M. 2814, 2820 (3d Cir.1983). Defendant argues that the six month statute runs from the date that plaintiff knew or should have known that Local 384 would not process her grievance to arbitration. Defendant Thrift-Rack’s Memorandum of Law in Support of the Motion to Dismiss or for Summary Judgment (“Defendant Thrift-Rack’s Memo”) at 6; Defendant Teamster’s Local # 384 Memorandum of Law in Support of the Motion to Dismiss or for Summary Judgment" }, { "docid": "9360084", "title": "", "text": "Posey, requires more. Accordingly, the defendant’s motion for summary judgment on plaintiff Patty Peffley’s ADEA claim should be granted. IV. Section 301 of the LMRA Mrs. Peffley alleges that Durakool discharged her without just cause, in violation of a provision contained in the collective bargaining agreement between Durakool and the union. Mrs. Peffley also claims that Durakool discharged her in retaliation for her filing for workmen’s compensation benefits. Under Indiana law, an employer may not discharge an employee because the employee seeks to collect workmen’s compensation benefits. Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973). Durakool argues that Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), preempts Mrs. Peffley’s claims for breach of the collective bargaining agreement and retaliatory discharge and bars Mrs. Peffley from enforcing those claims in an action in court. Because the union chose not to submit Mrs. Peffley’s grievance to arbitration under the collective bargaining agreement, Durakool contends, she is barred from further action of any sort for breach of the collective bargaining agreement or retaliatory discharge. A. Alleged Breach of the Collective Bargaining Agreement Federal substantive law governs suits based on a collective bargaining agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650, 655, 85 S.Ct. 614, 617-18, 13 L.Ed.2d 580 (1965); Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Congress has specified that “[f]inal adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes_” 29 U.S.C. § 173(d). The Supreme Court has interpreted this congressional statement of policy as requiring courts to defer to the grievance procedures selected by the parties to a collective bargaining agreement. Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967); Republic Steel v. Maddox, 379 U.S. 650, 653, 85 S.Ct. 614, 616-17, 13 L.Ed.2d 580 (1965). Although collective bargaining agreements often provide for binding arbitration as the ultimate method for" }, { "docid": "23484512", "title": "", "text": "CELEBREZZE, Circuit Judge. Appellee Ellis Trucking Company dismissed Appellant on September 15, 1969. Appellant contended that his discharge was wrongful, and sought arbitral relief as provided in the collective bargaining agreement between Ellis and his union, Local 299 of the International Brotherhood of Teamsters. The matter was referred to the Joint State Cartage Committee, which upheld the discharge on September 16,1969, and again on January 20, 1971, after a rehearing. On October 16, 1973, Appellant filed a complaint against Ellis in the United States District Court for the Eastern District of Michigan, alleging that his discharge was violative of the collective bargaining agreement. An amended complaint filed on June 17,1974, added a second count against Local 299 alleging breach of duty of fair representation and a third count stating that Ellis and the union had conspired to have Appellant discharged. Upon motion by the Appellees, the District Court dismissed the amended complaint for failure to state a claim upon which relief could be granted. 409 F.Supp. 129 (E.D.Mich.1976). As to the wrongful discharge allegation in count I, the court found the arbitral decision upholding the discharge to be binding and unreviewable. 409 F.Supp. at 131. The fair representation and conspiracy claims in counts II and III were held barred by Michigan’s three-year statute of limitations applicable to tort actions. Id. at 132. In this appeal, Appellant maintains that none of the counts should have been dismissed. We deal first with the holding below that counts II and III were time-barred. The District Court properly read the complaint as alleging jurisdiction under § 301 of the Labor Management Relations Act (LMRA or the Act), 29 U.S.C. § 185, which provides federal jurisdiction for suits by individual employees alleging wrongful discharge under a collective bargaining agreement and for included claims of union breach of fair representation duty. See Hines v. Anchor Motor Freight, 424 U.S. 554, 562, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 186-87, 87 S.Ct. 963, 17 L.Ed.2d 842 (1967). The timeliness of actions under § 301 is determined by reference to the appropriate" }, { "docid": "784254", "title": "", "text": "motion. Extensive briefs and supporting affidavits and exhibits were received from both parties and oral argument was heard by the court on May 22, 1979. After careful consideration of the issues presented by defendant’s motion, the court has determined that the motion will be granted with respect to both counts of the complaint. (I) Count 1 — 29 U.S.C. § 185 We begin with the rule that summary judgment can be granted only where there is no genuine issue as to any material fact. Further, all inferences and doubts must be resolved against the moving party. Ely v. Hall’s Motor Transit Co., 590 F.2d 62 (3rd Cir. 1978). Ordinarily, where a collective bargaining agreement provides for the arbitration of grievances, the arbitrator’s decision is final and binding on the parties and not subject to review by the courts. Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). In cases in which the union breaches its duty of fair representation in handling the employee’s grievance, however, this finality rule is inapplicable. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The Supreme' Court in Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), held that a plaintiff must prove (1) “an erroneous discharge” and (2) “the Union’s breach of duty [of fair representation]” which (3) “taintfs] the decision of the [arbitrator],” Id, at 572, 96 S.Ct. at 1060, in order to come within this exception to the finality rule. Thus, in order to prove his § 301 claim, plaintiff must establish that defendant breached the collective bargaining agreement by discharging him, that the union breached its duty of fair representation in its conduct of the arbitration, and that this breach by the union contributed to the arbitrator’s erroneous decision. (A) Propriety of Plaintiff’s Discharge The collective bargaining agreement in effect at the time of plaintiff’s discharge provides: ARTICLE VII Section 8. . (c) In the event of any violation of the provisions of subparagraph (b) above [forbidding work stoppages], the Union shall make immediate, sincere and" }, { "docid": "13008698", "title": "", "text": "duty of fair representation and (2) the failure of Levy to pay overtime wages as required by the Fair Labor Standards Act, 29 U.S.C. § 207(b). Flores was a member of the Union and employed by Levy during the years 1974 to 1980. Flores’ section 301 claims are based on allegations that Levy breached certain provisions of the collective bargaining agreements relating to the payment of wages and benefits during those years of employment. Flores also alleges that complaints were made to the Union concerning Levy’s alleged violations of the collective bargaining agreements,- but the Union failed to take any action on the complaints, thereby breaching its duty of fair representation. Pursuant to Levy’s motion to dismiss, the district court decided that the six-month statute of limitations period in Section 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(b), applied to all of the plaintiffs’ section 301 claims. The district court dismissed all such claims arising prior to July 19, 1982, thereby completely barring Flores’ claims. The district court also granted Levy’s motion to dismiss the overtime pay claims under the Fair Labor Standards Act which arose prior to January 19, 1980 (later corrected to January 19, 1981) because such claims were barred by the applicable two-year statute of limitations. 29 U.S.C. § 255(a). Levy’s motion for judgment on the pleadings against Flores was subsequently granted since there was no allegation that he was employed by Levy after January 18, 1981. A final judgment order was entered pursuant to Rule 54(b), and this appeal followed. Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, permits a union employee to sue his employer for the violation of collective bargaining agreements. However, where the union and the employer have agreed to submit disputes to a grievance-arbitration process, the employee must first show that the union has breached its duty of fair representation. See Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The cause of action against" }, { "docid": "15671042", "title": "", "text": "conceptually sound. First, an action to vacate an arbitration award under New York law may not be instituted by discharged employees like appellant. In re Soto, 7 N.Y.2d 397, 165 N.E.2d 855, 198 N.Y.S.2d 282 (1960). This difference is not an insubstantial one. While it may be reasonable to require the parties to a bargaining agreement (i.e., the union and the employer) to contest an arbitral decision within 90 days, individual employees may well lack the resources to act as quickly. Second, a § 301 action is procedurally quite distinct from an action to vacate or modify an arbitration award. “Although the effect of a judgment for [the discharged employee] would be to nullify the arbitral decision, the § 301 action is ‘independent’ of the grievance process .... Indeed, such a claim can be brought even before an arbitral decision where a union refuses in bad faith to process a grievance.” Smart v. Eliis Trucking Co., 580 F.2d 215, 219 (6 Cir. 1978), cert. denied, 440 U.S. 958 (1979); see Hines v. Anchor Motor Freight, Inc., supra, 424 U.S. at 567-68; Vaca v. Sipes, 386 U.S. 171 (1967). Regardless of whether an arbitration decision has been entered, the issue in a § 301 wrongful discharge action remains whether the employer has breached the collective bargaining contract and whether a union breach of duty contributed to the contractual breach. Hines v. Anchor Motor Freight, Inc., supra, 424 U.S. at 568. The mere fact that an arbitral decision has been rendered during the course of the employee termination process does not convert the character of a § 301 action from an action for breach of contract to an action for vacating an arbitration award. III. In summary, we reject the district court’s characterization of the instant § 301 action as an action to vacate an arbitration award, and accordingly reverse the district court’s dismissal of appellant’s complaint as barred by § 7511. We hold that New York’s six year limitation period for contractual breaches, § 213(2), is applicable to LMRA § 301 actions by employees alleging wrongful discharge by the employer and" }, { "docid": "9360085", "title": "", "text": "collective bargaining agreement or retaliatory discharge. A. Alleged Breach of the Collective Bargaining Agreement Federal substantive law governs suits based on a collective bargaining agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650, 655, 85 S.Ct. 614, 617-18, 13 L.Ed.2d 580 (1965); Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Congress has specified that “[f]inal adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes_” 29 U.S.C. § 173(d). The Supreme Court has interpreted this congressional statement of policy as requiring courts to defer to the grievance procedures selected by the parties to a collective bargaining agreement. Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967); Republic Steel v. Maddox, 379 U.S. 650, 653, 85 S.Ct. 614, 616-17, 13 L.Ed.2d 580 (1965). Although collective bargaining agreements often provide for binding arbitration as the ultimate method for resolution of employee grievances, this federal policy of deference also applies to contractual grievance procedures that provide dispute resolution methods other than binding arbitration. Huffman v. Westinghouse Electric Corp., 752 F.2d 1221 (7th Cir.1985). Under this federal labor policy of deference to contractual grievance procedures, an employee must exhaust the grievance procedures; further, the employee is barred from relitigating the issue in the courts. Huffman v. Westinghouse Electric Corp., 752 F.2d 1221, 1223 (7th Cir.1985); Haynes v. United States Pipe & Foundry Co., 362 F.2d 414, 416 (5th Cir.1966). The Supreme Court has created two exceptions to this general rule: (1) when the employer’s conduct constitutes a repudiation of the contract procedures, and (2) when the union breaches its duty of fair representation by wrongfully refusing to process the employee’s grievance. Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967). Mrs. Peffley submitted her grievance under the procedures provided in the collective bargaining agreement between the union and Durakool. Under that agreement, if the grievance is not settled through" } ]

[ { "docid": "22684687", "title": "", "text": "§ 1101(a)(42)(A). An applicant for asylum may qualify as a refugee either because he suffered past persecution or because he has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b). Under either standard, the applicant bears the burden of demonstrating eligibility for asylum. 8 C.F.R. § 208.13(a); Gonahasa v. INS, 181 F.3d 538, 541 (4th Cir.1999). An applicant “shall be found to be a refugee on the basis of past persecution if the applicant can establish that he or she has suffered persecution in the past in the applicant’s country of nationality ... on account of race, religion, nationality, membership in a particular social group, or political opinion, and is unable or unwilling to return to, or avail himself or herself of the protection of, that country owing to such persecution.” 8 C.F.R. § 208.13(b)(1). An applicant who demonstrates that he was the subject of past persecution is presumed to have a well-founded fear of persecution. Id. This presumption may be rebutted if the immigration judge finds by the preponderance of evidence that (1) there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution or (2) the applicant could avoid future persecution by relocating to another part of his native country. 8 C.F.R. § 208.13(b)(1)®. Without regard to past persecution, an applicant has a well-founded fear of persecution if (1) he “has a fear of persecution in his country of nationality on account of race, religion, nationality, membership in a particular social group, or political opinion,” (2) “there is a reasonable possibility 'of suffering such persecution if he or she were to return to that country,” and (3) he is “unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear.” 8 C.F.R. § 208.13(b)(2)®. The well-founded fear of persecution standard involves objective and subjective components'. “An applicant may satisfy the subjective element by presenting candid, credible, and sincere testimony demonstrating a genuine fear of persecution.” Chen v. INS, 195 F.3d 198, 201-02 (4th Cir.1999) (internal quotations omitted). The" } ]

[ { "docid": "8576813", "title": "", "text": "return to the site of such persecution.” See Fisher v. I.N.S., 291 F.3d 491, 497 (8th Cir.2002); 8 C.F.R. § 208.13(b)(1). If Mr. Bracic establishes past persecution, he is entitled to a presumption of a well-founded fear of persecution on the basis of his original claim upon his return to Montenegro. See 8 C.F.R. § 1208.13(b)(1). The burden then shifts to the government to rebut the presumption. The government must show, by a preponderance, fundamentally changed country conditions or the possibility of internal relocation. Id. A well-founded fear of persecution must be both subjectively genuine and objectively reasonable. Ngengwe v. Mukasey, 543 F.3d 1029, 1032-33 (8th Cir.2008). Persecution may be a harm to be inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control. Id. at 1033 (citations and quotations omitted). It “is an extreme concept that excludes low-level intimidation and harassment.” Sholla v. Gonzales, 492 F.3d 946, 951 (8th Cir.2007) (citations and internal quotation marks omitted). Persecution includes the “threat of death, the threat of infliction of torture, and the threat or infliction of injury to one’s person or one’s liberty on account of a protected ground.” Id. (citations and internal quotation marks omitted). “In some cases, an applicant may be able to show a well-founded fear of persecution on cumulative grounds.” Ngengwe, 543 F.3d at 1036 (8th Cir.2008) (citations and internal quotation marks omitted). An applicant “is not obliged to show conclusively why persecution has occurred or may occur. However, there must be some showing that past persecution was on account of one of the five protected grounds.” Hassan v. Ashcroft, 388 F.3d 661, 666 (8th Cir.2004) (citations and internal quotation marks omitted). To obtain withholding of removal, an alien must demonstrate a clear probability that he would suffer persecution on account of a protected ground. Karim, 596 F.3d at 897. The standard for withholding of removal is more rigorous than that for asylum, so an alien who fails to prove eligibility for asylum cannot meet the burden for withholding of removal. Id. Withholding of" }, { "docid": "12654340", "title": "", "text": "the final agency action, but “to the extent that the BIA adopted the findings or reasoning of the IJ, we also review the IJ’s decision as part of the final agency action.” Matul-Hemandez v. Holder, 685 F.3d 707, 710-11 (8th Cir.2012) (quotation omitted). “An agency’s findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Fofana v. Holder, 704 F.3d 554, 557 (8th Cir.2013). We review asylum and withholding of removal claims for “substantial evidence ... upholding the decision if it is supported by reasonable, substantial, and probative evidence based on the record as a whole.” Id. (internal quotations omitted). An alien is eligible for asylum if the Attorney General determines that he or she is a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A “refugee” is “a person who is unable or unwilling to return to his or 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.’ ” Ortiz-Puentes v. Holder, 662 F.3d 481, 483 (8th Cir.2011) (quoting 8 U.S.C. § 1101(a)(42)(A)). The asylum applicant bears the burden to establish persecution. 8 C.F.R. § 1208.13(a), (b)(1). Persecution “includes the credible threat of death, torture, or injury to one’s person or liberty on account of a protected ground,” but does not include “low-level intimidation and harassment.” Matul-Hernandez, 685 F.3d at 711 (quotations omitted). If an applicant establishes past persecution, a well-founded fear of future persecution is presumed. 8 C.F.R. § 1208.13(b)(1). Where the applicant fails to establish past persecution, he must demonstrate a well-founded fear of future persecution. Id. In order to prove a well-founded fear of future persecution, the applicant must provide “credible, direct, and specific evidence” to show that “he actually fears persecution and that a reasonable person in the alien’s position would fear persecution if returned to the alien’s native country.” Suprun v. Gonzales, 442 F.3d 1078, 1081 (8th Cir.2006) (quotations and internal quotation omitted). Additionally, as relevant to past persecution or a well-founded fear of future persecution, the applicant must show that" }, { "docid": "19744321", "title": "", "text": "Rondonuwu contend that the IJ and BIA erred in denying their application for asylum, withholding of removal, and protection under CAT. We review a BIA’s determination under the substantial evidence standard and will reverse only if “it would not be possible for any reasonable fact-finder to come to the conclusion reached by the administrator.” Menendez-Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir.2004). Because the BIA adopted the IJ’s decision and added reasoning of its own, we review both decisions together. Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.2006). A. To be eligible for asylum, an applicant must demonstrate that he or she is a refugee — a person who is unwilling or unable to return to his or her home country “ ‘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.’ ” Berte v. Ashcroft, 396 F.3d 993, 996 (8th Cir.2005) (quoting 8 U.S.C. § 1101(a)(42)(A)). Persecution has been generally defined as “ ‘the infliction or threat of death, torture, or injury to one’s person or freedom, on account of one of the grounds enumerated in the refugee definition,” id. (quoting Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir.2002)), and must be “inflicted either by the government ... or by persons or an organization that the government was unwilling or unable to control.” Valioukevitch v. INS, 251 F.3d 747, 749 (8th Cir.2001). If past persecution is established, the applicant is entitled to a presumption of a well-founded fear of future persecution, which can be rebutted by evidence that country conditions have changed. Hasalla v. Ashcroft, 367 F.3d 799, 803 (8th Cir.2004) (citing 8 C.F.R. § 1208.13(b)(1)® (2003)). Absent evidence of past persecution, an applicant must establish a well-founded fear of persecution that is “both subjectively genuine and objectively reasonable.” Eta-Ndu v. Gonzales, 411 F.3d 977, 983 (8th Cir.2005). The BIA concluded that the petitioners had failed to meet their burden of establishing past persecution. We cannot say that these findings were erroneous given the circumstances. First, as noted by the IJ, it" }, { "docid": "22034631", "title": "", "text": "disregarding corroborating evidence that she submitted in her application for asylum and withholding of removal. For the reasons that follow, we deny the petition for review. I. Under the Immigration and Nationality Act (“INA”), the Attorney General has authority to confer asylum on any refugee. 8 U.S.C. § 1158(b). To qualify as a refugee, an alien must be unwilling or unable to return to her native country “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). The “well-founded fear of persecution” standard contains both subjective and objective components. Chen v. INS, 195 F.3d 198, 201 (4th Cir.1999). To satisfy the subjective component, an applicant must present “candid, credible, and sincere testimony demonstrating a genuine fear of persecution.” Id. (internal quotations omitted). The objective component requires “specific, concrete facts that a reasonable person in like circumstances would fear persecution.” Id. at 202. The applicant for asylum bears the ultimate burden of proving her status as a refugee. 8 C.F.R. § 1208.13(a) (2004). To qualify for withholding of removal, an applicant must demonstrate a “clear probability of persecution.” INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). This is a more stringent standard than that for asylum. Chen, 195 F.3d at 205. Unlike the grant of asylum (where an alien is entitled to remain in the United States), withholding of removal merely bars the deportation of an alien to a particular country. INS v. Aguirre-Aguirre, 526 U.S. 415, 419, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). Further, while asylum is discretionary, if an alien establishes eligibility for withholding of removal, the grant is mandatory. Id. at 420, 119 S.Ct. 1439.. To qualify for protection under the CAT, an applicant must prove that it is “more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). We have concluded that this standard for the CAT is independent from the standard for determining asylum, and an adverse credibility" }, { "docid": "21459126", "title": "", "text": "opinion.” Id. § 1101(a)(42)(A). An applicant becomes eligible for asylum upon establishing that he has suffered from past persecution, or that he has a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b). Such an applicant may establish a well-founded fear of future persecution by demonstrating “(1) that a reasonable person in the circumstances would fear persecution; and (2) that the fear has some basis in the reality of the circumstances and is validated with specific, concrete facts.” Huaman-Cornelio v. BIA 979 F.2d 995, 999 (4th Cir.1992) (citations and internal quotation marks omitted). In other words, an asylum applicant must demonstrate a subjectively genuine and objectively reasonable fear of future persecution on account of a statutorily protected ground. Yong Hao Chen v. INS, 195 F.3d 198, 201-02 (4th Cir.1999); see also 8 C.F.R. § 208.13(b)(2)(B) (providing that applicant’s fear of persecution is well-founded if it is on account of protected ground and there is “reasonable probability of suffering such persecution”). Importantly, an applicant for asylum bears the burden of establishing his eligibility for such relief. 8 C.F.R. § 208.13(a); Gonahasa v. INS, 181 F.3d 538, 541 (4th Cir. 1999). An award of relief in the form of withholding of removal, on the other hand, implicates a more demanding standard of proof than the “well-founded fear” standard applicable to asylum requests, in that a “[withholding of removal is available only to an alien who can demonstrate a clear probability of persecution on account of his race, religion, nationality, membership in a social group, or political opinion.” Ngarurih v. Ashcroft, 371 F.3d 182, 189 n. 7 (4th Cir.2004) (citations and internal quotation marks omitted). Thus, an applicant for relief who has failed to satisfy the less stringent “well-founded fear” standard of proof required for asylum relief is necessarily also unable to establish an entitlement to withholding of removal. Id. Ali maintains that the BIA erred in two respects in denying his requests for asylum and withholding of removal. First, he asserts that the BIA erroneously decided that he had not established a well-founded fear of persecution on the basis of his" }, { "docid": "22413430", "title": "", "text": "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) (2000). An asylum seeker bears the burden of demonstrating his eligibility within the meaning of 8 U.S.C. § 1101(a)(42). See 8 C.F.R. § 208.13(a) (2002); Gonahasa, 181 F.3d at 541. To show this, an asylum seeker must establish that past persecution or a well-founded fear of future persecution is predicated on one or more protected factors of “race, religion, nationality, membership in a particular social group, or political opinion,” 8 U.S.C. § 1101(a)(42) (2000); 8 C.F.R. § 208.13(b) (2002). Fears of “retribution over purely personal matters or general conditions- of upheaval and unrest” do not constitute cognizable bases for granting asylum. Huaman-Cornelio v. BIA, 979 F.2d 995, 1000 (4th Cir.1992). An asylum seeker claiming a well-founded fear of future persecution must also show that he possesses both a subjectively genuine and an objectively reasonable fear of persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). An asylum seeker must demonstrate that his subjective “fear has some basis in the reality of the circumstances and is validated with specific, concrete facts,” Huaman-Cornelio, 979 F.2d at 999 (internal quotations omitted), and is not “mere irrational apprehension.” M.A. v. INS, 899 F.2d 304, 311 (4th Cir.1990) (internal quotations omitted). The objective element requires a showing that “a reasonable person in similar circumstances would fear persecution on account of’ one or more of the protected grounds. Cruz-Diaz v. INS, 86 F.3d 330, 331 (4th Cir.1996); see also 8 C.F.R. § 208.13(b)(2)(i)(B) (2002). If an alien can establish he has suffered past persecution based on a protected factor, he is presumed to have met the requirement of a well-founded fear of future persecution. Gonahasa, 181 F.3d at 541. The INS can rebut this presumption, however, if a preponderance of the evidence establishes that conditions “have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return.” Id. at 541^2" }, { "docid": "22818352", "title": "", "text": "court for review. II. To establish eligibility for the discretionary grant of asylum under the Immigration and Nationality Act, the applicant has the burden of showing either that she was subjected to past persecution or that she has a “well-founded” fear of future persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 208.13(b)(1). Fear of future persecution “contains a subjective and an objective component.” Chen v. INS, 195 F.3d 198, 201 (4th Cir.1999). The subjective component is satisfied “by presenting candid, credible, and sincere testimony demonstrating a genuine fear of persecution.” Id. (quotations omitted). “The objective element requires the asylum [applicant] to show, with specific, concrete facts, that a reasonable person in like circumstances would fear persecution.” Id. at 202. If the applicant establishes past persecution, a rebuttable presumption of a well-founded fear of persecution is also established. 8 C.F.R. § 208.13(b)(1). To qualify for withholding of removal, the applicant must establish that if she is removed, there is a clear probability that her “life or freedom would be threatened ... because of [her] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). An applicant “who has failed to establish the less stringent well-founded fear standard of proof required for asylum relief is necessarily also unable to establish an entitlement to withholding of removal.” Anim v. Mukasey, 535 F.3d 243, 253 (4th Cir.2008) (quotations and citation omitted). To be eligible for protection under CAT, the applicant must show that it is “more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(1), (2); see Gandziami-Mickhou, 445 F.3d at 354. The likelihood of torture, however, need not be tied to a protected ground under CAT. See Dankam v. Gonzales, 495 F.3d 113, 115-16 (4th Cir.2007). “We review the BIA’s administrative findings of fact under the substantial evidence rule, and we are obliged to treat them as conclusive unless the evidence before the BIA was such that any reasonable adjudicator would have been" }, { "docid": "20889761", "title": "", "text": "of discretion.’ ” Cordova, 759 F.3d at 337 (quoting Tassi v. Holder, 660 F.3d 710, 719 (4th Cir.2011)). III. Under 8 U.S.C. § 1101(a)(42)(A), to establish her eligibility for asylum, Hernan dez must prove that she (1) has a well-founded fear of persecution; (2) on account of a protected ground; (3) by an organization that the Salvadoran government is unable or unwilling to control. Lopez-Soto v. Ashcroft, 383 F.3d 228, 234 (4th Cir.2004) (vacated pending reh’g en banc on other grounds). A. As to the first requirement, we have expressly held that “the threat of death qualifies as persecution.” Crespin-Valladares v. Holder, 632 F.3d 117, 126 (4th Cir.2011) (citing Li v. Gonzales, 405 F.3d 171, 177 (4th Cir.2005)). Further, “[applicants who demonstrate past persecution are presumed to have a well-founded fear of future persecution.” Naizgi, 455 F.3d at 486 (citing 8 C.F.R. § 1208.13(b)(1)). Because Hernandez credibly testified that she received death threats from Mara 18, she has proven that she has a well-founded fear of future persecution were she to return to El Salvador. She has thus satisfied the first prong of eligibility for asylum. B. Next, Hernandez must show that the persecution she suffered was on account of a protected ground. “Persecution occurs ‘on account of a protected ground if that ground serves as ‘at least one central reason for’ the feared persecution.” Crespin-Valladares, 632 F.3d at 127 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). Among the protected grounds listed in the asylum statute is “membership in a particular social group.” 8 U.S.C. § 1158(b)(1)(B)(i). Hernandez claims, and the government correctly acknowledges, that membership in a nuclear family qualifies as a protected ground for asylum purposes. See Crespin-Valladares, 632 F.3d at 125 (“[T]he family provides a prototypical example of a particular social group.”) (internal quotation marks and citations omitted). The government argues, however, that the BIA was correct in holding that Hernandez’s persecution was not “on account of’ her family ties. To prove that persecution took place on account of family ties, an asylum applicant “need not show that his family ties provide ‘the central reason or even a dominant" }, { "docid": "22818351", "title": "", "text": "to corroborate the information in [Zhurau’s] affidavit.” J.A. 170. Finally, the IJ explained that Marynenka’s mother’s statement did not overcome the “aforementioned concerns and indeed this letter does not constitute independent evidence of [Marynenka’s] alleged persecution.” J.A. 170 (citing Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 359 (4th Cir.2006)). Based on the foregoing reasoning, the IJ found that Marynenka failed to meet her burden of proof and denied her application for asylum. Similarly, the IJ found that Marynenka did not satisfy her burden of proving eligibility for withholding of removal. Finally, the IJ denied Marynenka’s request for protection under CAT because she failed to prove that it is more likely than not that she would be tortured if removed to Belarus. Marynenka appealed the IJ’s decision to the BIA, which adopted and affirmed the IPs decision and dismissed Marynenka’s appeal. Like the IJ, the BIA did not make an express adverse credibility finding. Instead, the BIA found that Marynenka “ha[d] not met her burden of proof to establish eligibility for relief.” J.A. 293. Marynenka petitioned this court for review. II. To establish eligibility for the discretionary grant of asylum under the Immigration and Nationality Act, the applicant has the burden of showing either that she was subjected to past persecution or that she has a “well-founded” fear of future persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 208.13(b)(1). Fear of future persecution “contains a subjective and an objective component.” Chen v. INS, 195 F.3d 198, 201 (4th Cir.1999). The subjective component is satisfied “by presenting candid, credible, and sincere testimony demonstrating a genuine fear of persecution.” Id. (quotations omitted). “The objective element requires the asylum [applicant] to show, with specific, concrete facts, that a reasonable person in like circumstances would fear persecution.” Id. at 202. If the applicant establishes past persecution, a rebuttable presumption of a well-founded fear of persecution is also established. 8 C.F.R. § 208.13(b)(1). To qualify for withholding of removal, the applicant must establish that if she is removed, there is a clear probability that her “life" }, { "docid": "21459125", "title": "", "text": "of an application for asylum or withholding of removal, an alien “must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Elias-Za-carias, 502 U.S. at 483-84, 112 S.Ct. 812. Finally, we review de novo any legal issues determined by the BIA. Blanco de Belbru-no v. Ashcroft, 362 F.3d 272, 278 (4th Cir .2004). III. In this proceeding, Ali seeks our review of the BIA Order to the extent that it affirmed the IJ Order’s denial of his requests for asylum and withholding of removal. Under the INA, the Secretary of the DHS and the Attorney General are both authorized to grant asylum to an alien who has satisfied the statutory definition of a refugee. 8 U.S.C. § 1158(b)(1). A “refugee” under the INA is a person who is “unable to or unwilling to return to ... [his home] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42)(A). An applicant becomes eligible for asylum upon establishing that he has suffered from past persecution, or that he has a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b). Such an applicant may establish a well-founded fear of future persecution by demonstrating “(1) that a reasonable person in the circumstances would fear persecution; and (2) that the fear has some basis in the reality of the circumstances and is validated with specific, concrete facts.” Huaman-Cornelio v. BIA 979 F.2d 995, 999 (4th Cir.1992) (citations and internal quotation marks omitted). In other words, an asylum applicant must demonstrate a subjectively genuine and objectively reasonable fear of future persecution on account of a statutorily protected ground. Yong Hao Chen v. INS, 195 F.3d 198, 201-02 (4th Cir.1999); see also 8 C.F.R. § 208.13(b)(2)(B) (providing that applicant’s fear of persecution is well-founded if it is on account of protected ground and there is “reasonable probability of suffering such persecution”). Importantly, an applicant for asylum bears the burden of establishing his eligibility for such" }, { "docid": "19507588", "title": "", "text": "remand the petition for further consideration by the BIA. A. The Immigration and Nationality Act (\"INA\") authorizes the Attorney General to confer asylum on any refugee. 8 U.S.C. § 1158 (b)(1)(A). An applicant bears the burden of proving eligibility for asylum. Naizgi v. Gonzales , 455 F.3d 484, 486 (4th Cir. 2006) ; 8 C.F.R. § 1208.13(a), (b)(1). Eligibility for asylum under the INA may be established in two ways. 8U.S.C.§ 1101(a)(42)(A). First, the petitioner may show that he was subjected to past persecution, in which case he is entitled to a rebuttable presumption that he has a well-founded fear of future persecution. Id. ; Ngarurih , 371 F.3d at 187. Second, the applicant may show that he has a well-founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(A). In either case, the past persecution or well-founded fear of persecution must be \"on account of race, religion, nationality, membership in a particular social group, or political opinion.\" Id. \"Persecution involves the infliction or threat of death, torture, or injury to one's person or freedom, on account of one of the enumerated grounds in the refugee definition.\" Li v. Gonzales , 405 F.3d 171, 177 (4th Cir. 2005) (internal citations omitted). Persecution may include actions less severe than threats to life or freedom, but \"actions must rise above the level of mere harassment to constitute persecution.\" Id. (internal citations omitted). The BIA erred by finding that Tairou had not established past persecution, despite Tairou's credible testimony of death threats he received in Benin. In concluding de novo that Tairou did not suffer persecution in Benin, the BIA reasoned that Tairou suffered no major physical injuries and that he did not claim to have suffered long-term mental harm or problems. The BIA thus concluded that the harm suffered cumulatively by Tairou did not rise to the level of persecution. However, the record indicates that Tairou received multiple death threats that the BIA failed to address. Indeed, the Government conceded at oral argument that Tairou suffered at least \"an implicit death threat\" when his cousin brandished a knife after the home invasion. Because" }, { "docid": "10728452", "title": "", "text": "group. Under the Immigration and Nationality Act (“INA”), an alien applying for asylum has the burden of showing either past persecution or a well-founded fear of future persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). If the applicant is able to demonstrate past persecution, she is “presumed to have a well-founded fear of persecution on the basis of the original claim.” 8 C.F.R. § 208.13(b)(1). Persecution is an extreme concept, and not every incident of mistreatment or harassment constitutes persecution within the meaning of the INA. Qiao Hua Li v. Gonzales, 405 F.3d 171, 177-78 (4th Cir. 2005). Courts “have been reluctant to categorize detentions unaccompanied by se vere physical abuse or torture as persecution.” Id. at 177. Because we cannot say Haile’s evidence of past persecution was so compelling that no reasonable fact-finder could fail to afford Haile the presumption of a well-founded fear of persecution, we do not take issue with BIA’s denial of this presumption. Independent of past persecution, an applicant can still establish a well-founded fear of future persecution by “provid[ing] both candid, credible and sincere testimony demonstrating a genuine fear of persecution as well as specific, concrete facts that a reasonable person in like circumstances would fear persecution.” Kourou-ma, 588 F.3d at 240 (internal citations omitted). Haile claims she has a well-founded fear of future persecution based on her membership in a particular social group and her political opinion. A. Membership in a particular social group is a protected ground under the INA. 8 U.S.C. § 1101(a)(42)(A). Haile defines her membership in a particular social group as a member of the nuclear family of her father, who was a member of SAGEM, and was arrested and disappeared for his political activities. It is well established in the Fourth Circuit and sister circuits that “family” qualifies as a “particular social group” within the meaning of the INA. Crespin-Valla-dares v. Holder, 632 F.3d 117, 125 (4th Cir.2011) (“[T]he family provides a prototypical example of a ‘particular social group.’ ”) (internal citations omitted). The IJ agreed" }, { "docid": "23259837", "title": "", "text": "is a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42), either because she has been persecuted on account of “race, religion, nationality, membership in a particular social group, or political opinion” or because of a well-founded fear that, if removed, she will be persecuted on account of one of those protected grounds. Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d Cir.2009); Tao Jiang v. Gonzales, 500 F.3d 137, 140 (2d Cir.2007). A petitioner may thus, in certain circumstances, establish asylum eligibility on the basis of the past persecution without regard to any well-founded fear of future persecution in what is frequently referred to as “humanitarian asylum.” Jalloh, 498 F.3d at 151. This relief is reserved for persecuted aliens whose persecution was particularly severe or who may suffer “other serious harm” if removed. 8 C.F.R. § 1208.13(b)(l)(iii). Absent humanitarian asylum, an asylum applicant must demonstrate a well-founded fear of persecution, which “is ‘a subjective fear that is objectively reasonable. A fear is objectively reasonable even if there is only a slight, though discernable, chance of persecution.’ ” Dong Zhong Zheng, 552 F.3d at 284, quoting Tambadou v. Gon zales, 446 F.3d 298, 302 (2d Cir.2006). Withholding of removal under 8 U.S.C. § 1231(b)(3), unlike asylum, is a mandatory form of relief reserved for aliens who demonstrate a clear probability of future persecution on account of a protected characteristic. Vumi v. Gonzales, 502 F.3d 150, 153 (2d Cir.2007); see also 8 C.F.R. § 1208.16(b) (alien must show that her “life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion”). Protection under the CAT, like withholding of removal, is a mandatory form of relief. It requires the applicant to “establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Unlike asylum and withholding of removal, “CAT relief does not require a nexus to a protected ground,” Delgado, 508 F.3d at 708, but it does require the" }, { "docid": "7599570", "title": "", "text": "enough to upset the agency’s determination. See Sompotan v. Mukasey, 533 F.3d 63, 68 (1st Cir.2008) (quoting López de Hincapié v. Gonzales, 494 F.3d 213, 218 (1st Cir.2007)). In other words, we must uphold the BIA’s determination unless the record “points unerringly in the opposite direction.” Hincapié, 494 F.3d at 220 (quoting Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004)). “Usually, this court confines its review to the BIA’s order that is being challenged by the petitioner.” Lumataw v. Holder, 582 F.3d 78, 83 (1st Cir.2009) (internal quotation marks omitted). “However, when as here, the BIA adopts the decision of the IJ, and provides some analysis of its own, the Court reviews both decisions.” Id. B. Applicable Law “To establish eligibility for asylum, an alien must prove either past persecution, which gives rise to an inference of future persecution, or establish a well founded fear of future persecution on account of her race, religion, nationality, membership in a social group, or political opinion.” Lumataw, 582 F.3d at *83 (internal quotation marks omitted); see also 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)©; 8 C.F.R. § 1208.13(b). If an applicant establishes past persecution, there is a presumption of a well-founded fear of future persecution, and the burden shifts to the Government to rebut this presumption. 8 C.F.R. § 1208.13(b)(1); see also Jorgji, 514 F.3d at 57. But even if the applicant cannot establish past persecution, she can nevertheless establish eligibility for asylum based on a “well-founded fear of future persecution” based on a protected ground. 8 C.F.R. § 1208.13(b). An applicant has a “well-founded fear of persecution” in her country if she can establish that her fear is both (1) subjectively genuine and (2) objectively reasonable, meaning that a reasonable person in the applicant’s circumstances would fear persecution. Castillo-Diaz v. Holder, 562 F.3d 23, 26 (1st Cir.2009); see also 8 C.F.R. § 1208.13(b)(2). The regulations further provide that: [i]n evaluating whether the applicant has sustained the burden of proving that he or she has a well-founded fear of persecution, the ... [IJ] shall not require the applicant to provide evidence that there is" }, { "docid": "353988", "title": "", "text": "“the government in Indonesia is unwilling or unable to protect those of Christian faith in Indonesia.” The BIA affirmed this decision without a separate opinion. II. When the BIA adopts the IJ’s decision, “we review the relevant portion of the IJ’s opinion as though it were the decision of the BIA.” Guillaume v. Gonzales, 504 F.3d 68, 72 (1st Cir.2007). The IJ’s factual determinations are reviewed only to determine if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Turn v. Gonzales, 503 F.3d 159, 161 (1st Cir.2007) (quoting INS v. EliasZacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)) (internal quotation marks omitted). This highly deferential standard requires findings of fact to be upheld “unless any reasonable adjudicator would be compelled to conclude to the contrary.” Ortiz-Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir.2007)(internal quotation marks omitted); 8 U.S.C. § 1252(b)(4)(B). Asylum is available to an alien who is “unable or unwilling to return to ... [her] country 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). The alien seeking asylum bears the burden of proving that she is eligible. Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005). This burden can be met by proving past persecution, which gives rise to a rebuttable presumption of future persecution, or by directly proving a well-founded fear of persecution on one of the statutory grounds. Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005); Guzman v. INS, 327 F.3d 11, 16 (1st Cir.2003). The latter showing includes both subjective and objective components. Guzman, 327 F.3d at 16. The petitioner can satisfy her burden by proving a genuine fear of persecution against her personally, relying on credible and specific evidence. Id. Future persecution can also be proven with evidence that a pattern or practice of discrimination exists in the petitioner’s country of origin against a group of persons similarly situated to her. 8 C.F.R. § 1208.13(b)(2)(iii). Additionally, the petitioner must establish that" }, { "docid": "22034630", "title": "", "text": "Petition for review denied by published opinion. Judge SHEDD wrote the opinion, in which Judge WILKINSON and Judge KING joined. OPINION SHEDD, Circuit Judge. Ela Gandziami-Mickhou, a native and citizen of the Republic of Congo, was admitted to the United States in January 2002 as a non-immigrant student to attend Avila College in Kansas City, Missouri. After Gandziami-Mickhou failed to return to the college following the Spring 2002 semester, the Immigration and Naturalization Service (“INS”) issued a Notice to Appear, charging her as removable for failing to comply with the conditions of her visa. Gandziami-Mickhou subsequently applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). An Immigration Judge (“IJ”) denied Gandziami-Mickhou’s applications, concluding that she failed to meet her burden of proof on each of her claims. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision under its streamlined process of review. Gandziami-Mickhou now petitions for review of the BIA’s decision, arguing primarily that the IJ violated our decision in Camara v. Ashcroft, 378 F.3d 361 (4th Cir.2004), by disregarding corroborating evidence that she submitted in her application for asylum and withholding of removal. For the reasons that follow, we deny the petition for review. I. Under the Immigration and Nationality Act (“INA”), the Attorney General has authority to confer asylum on any refugee. 8 U.S.C. § 1158(b). To qualify as a refugee, an alien must be unwilling or unable to return to her native country “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). The “well-founded fear of persecution” standard contains both subjective and objective components. Chen v. INS, 195 F.3d 198, 201 (4th Cir.1999). To satisfy the subjective component, an applicant must present “candid, credible, and sincere testimony demonstrating a genuine fear of persecution.” Id. (internal quotations omitted). The objective component requires “specific, concrete facts that a reasonable person in like circumstances would fear persecution.” Id. at 202. The applicant for asylum bears the ultimate burden of proving her status as a refugee." }, { "docid": "20238570", "title": "", "text": "such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.’ ” Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir.2011) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). In order to establish eligibility for asylum under the Immigration and Nationality Act (“INA”), an applicant must demonstrate that he or she is entitled to refugee status. See 8 U.S.C. § 1158(b)(1)(A). Under the INA, a refugee is someone “who is unable or unwilling to return to ... [his or her] country 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). Petitioners “may satisfy this burden by showing either that they were subjected to past persecution or that they have a well-founded fear of future persecution on account of’ one of the enumerated grounds. Djadjou, 662 F.3d at 272 (internal quotation marks and alterations omitted). The INA specifically permits victims of China’s population control policy to seek political asylum: [A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion. 8 U.S.C. § 1101(a)(42). Li and Chen do not claim to have suffered past persecution, but seek asylum based on their fear of future persecution. The “well-founded fear of persecution” standard set forth in § 1101(a)(42) has subjective and objective elements. The subjective component requires the alien to “present[] candid, credible, and sincere testimony demonstrating a genuine fear of persecution.” Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.2004) (internal quotation marks omitted)." }, { "docid": "22052515", "title": "", "text": "I. A. Under the Immigration and Nationality Act (“INA”), the Attorney General is vested with the discretion to grant asylum to aliens who qualify as “refugees.” See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A); INS v. Ventura, 537 U.S. 12, 13, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). The INA defines “refugee” as someone “who is unable or unwilling to return to” his native country “because of persecution or a well-founded fear of persecution on account of ... political opinion” or other protected grounds. 8 U.S.C. § 1101(42)(A). An asylum applicant “may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution.” 8 C.F.R. § 1208.13(b). The burden of proof with respect to refugee status rests with the applicant. See 8 C.F.R. § 208.13(a); Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353 (4th Cir.2006). The applicant’s burden is even greater to qualify for withholding of removal to a particular country under the INA, which requires the alien to demonstrate a “clear probability of persecution” on account of a protected ground. INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) (internal quotation marks omitted). The payoff in return for the more stringent qualification standard is that withholding of removal is not a discretionary form of relief; it is mandatory. See 8 U.S.C. § 1231(b)(3)(A); INS v. Aguirre-Aguirre, 526 U.S. 415, 420, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). Finally, an alien seeking protection under the CAT must show “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). The likelihood of torture, however, need not be tied to a protected ground under the CAT. See Yang v. Gonzales, 478 F.3d 133, 141 (2nd Cir.2007). “Withholding and deferral of removal under the CAT are mandatory forms of relief that hinge on risk within the country to which the Government is seeking expulsion. Instead of focusing on persecution and nexus to protected grounds, CAT relief requires the applicant" }, { "docid": "22220389", "title": "", "text": "§ 1208.13(a). Pursuant to section 101(a)(42) of the INA, a refugee is “any person who is outside any country of such person’s nationality ... who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country 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) (emphasis added). An applicant for asylum may prove eligibility by establishing past persecution on account of one of the statutorily enumerated grounds, and if the applicant shows past persecution, he or she will be presumed to have a well-founded fear of future persecution. Hasalla v. Ashcroft, 367 F.3d 799, 803 (8th Cir.2004). But if an applicant attempts to establish a well-founded fear of future persecution without having shown past persecution then “an alien must show the fear is both subjectively genuine and objectively reasonable .... To overcome the BIA’s finding that [petitioner] lacked a well-founded fear of persecution, [petitioner] must show the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir.1993) (internal citations and quotations omitted). “Persecution is the infliction or threat of death, torture, or injury to one’s person or freedom, on account of race, religion, nationality, membership in a particular social group, or political opinion.” Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir.2002). Persecution requires harsh treatment and “[l]ow-level intimidation and harassment alone do not rise to the level of persecution” nor does mere economic detriment. Makatengkeng v. Gonzales, 495 F.3d 876, 882 (8th Cir.2007). “As for slurs and harassment from private individuals, these do not constitute persecution.” Rife v. Ashcroft, 374 F.3d 606, 612 (8th Cir.2004) (quoting Fisher v. INS, 291 F.3d 491, 497 (8th Cir.2002)). Petitioners allege that they were persecuted on account of the statutorily enumerated ground of “membership in a particular social group” of competing family business owners. The BIA construes “membership in a particular social" }, { "docid": "19507587", "title": "", "text": "harm inflicted on him and his family members. He argues that targeted death threats and threatening phone calls may establish a finding of past persecution. Had the BIA properly considered the cumulative effects of the harm inflicted on him and his family members, including the death threats he received at the public gathering at the village and the violent home invasion, Tairou argues that the BIA would have found him to be a victim of past persecution and he would have been entitled to a rebuttable presumption of a well-founded fear of future persecution. The Government does not dispute the credibility of Tairou's testimony, and it concedes - as it must - that he has stated a valid particular social group. See, e.g. , Bringas-Rodriguez v. Sessions , 850 F.3d 1051, 1073 (9th Cir. 2017) ; Nabulwala v. Gonzales , 481 F.3d 1115, 1117 (8th Cir. 2007). The Government argues that the BIA's decision should be upheld, however, because the harm suffered cumulatively by Tairou does not constitute past persecution. We agree with Tairou and remand the petition for further consideration by the BIA. A. The Immigration and Nationality Act (\"INA\") authorizes the Attorney General to confer asylum on any refugee. 8 U.S.C. § 1158 (b)(1)(A). An applicant bears the burden of proving eligibility for asylum. Naizgi v. Gonzales , 455 F.3d 484, 486 (4th Cir. 2006) ; 8 C.F.R. § 1208.13(a), (b)(1). Eligibility for asylum under the INA may be established in two ways. 8U.S.C.§ 1101(a)(42)(A). First, the petitioner may show that he was subjected to past persecution, in which case he is entitled to a rebuttable presumption that he has a well-founded fear of future persecution. Id. ; Ngarurih , 371 F.3d at 187. Second, the applicant may show that he has a well-founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(A). In either case, the past persecution or well-founded fear of persecution must be \"on account of race, religion, nationality, membership in a particular social group, or political opinion.\" Id. \"Persecution involves the infliction or threat of death, torture, or injury to one's person or freedom, on" } ]

[ { "docid": "22108674", "title": "", "text": "what we think is even broader authority. They are expressly empowered to “determine all benefits and resolve all questions pertaining to the administration, interpretation and application of the Plan provisions.” That said, and because there is at the heart of this case nothing more than a dispute over the Vitro trustees’ “interpretations” of unclear language found in the plan documents themselves, we are compelled under Bruch’s express mandate to apply the deferential “abuse of discretion” standard as we turn, finally, to the merits of the retirees’ claims. Ill As the Bruch Court made plain, what follows from the applicability of the abuse of discretion standard is that the trustee’s interpretation of relevant provisions of the plan documents — hence the challenged denial of benefits — “will not be disturbed if reasonable.” — U.S. at -, 109 S.Ct. at 954 (emphasis supplied) (citing G. Bogert & G. Bogert, Law of Trusts and Trustees § 559, at 169-71 (rev. 2d ed. 1980)). See also Van Boxel, 836 F.2d at 1053 (“usual approach” where trust beneficiaries challenge fiduciaries’ discretionary construction of governing instrument is for court to “review the trustees’ interpretation to decide whether it was reasonable”) (citing Quinn v. Burlington Northern Inc. Pen sion Plan, 664 F.2d 675, 678 (8th Cir.1981)). Of course, inquiry into the “reasonableness” of fiduciaries’ interpretations of disputed plan language was considered relevant even under the now abandoned arbitrary and capricious standard for the review of benefits denials in ERISA cases. See, e.g., Dennard, 681 F.2d at 314 (“factors to be considered in applying the arbitrary and capricious standard” include analysis of “reasonableness” of interpretation offered by plan administrators) (citing Bayles v. Central States, Southeast and Southwest Areas Pension Fund, 602 F.2d 97, 100 (5th Cir.1979)); Morgan v. Mullins, 643 F.2d 1320, 1323 (8th Cir.1981) (application of arbitrary and capricious standard requires “examination of] the reasonableness of the Trustees’ interpretation” of disputed language); Lowenstern v. International Ass’n of Machinists and Aerospace Workers, 479 F.2d 1211, 1213 (D.C.Cir.1973) (under arbitrary and capricious standard, court owes deference to plan administrators if parties have simply offered “reasonable ..., competing interpretations of" } ]

[ { "docid": "22593828", "title": "", "text": "of review. In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Court stated that when a denial of benefits is challenged under ERISA § 1132(a)(1)(B), the standard of review depends largely upon whether “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone, 489 U.S. at 115, 109 S.Ct. 948. If so, “Firestone and its progeny mandate a deferential ‘arbitrary and capricious’ standard of review.” Recupero v. New Engl. Tel. & Tel. Co., 118 F.3d 820, 827 (1st Cir.1997) (quoting Firestone, 489 U.S. at 115, 109 S.Ct. 948). The threshold question, then, is whether the provisions of the employee benefit plan under which remediation is sought reflect a clear grant of discretionary authority to determine eligibility for benefits. Terry v. Bayer Corp., 145 F.3d 28, 37 (1st Cir.1998); Rodriguez-Abreu v. Chase Manhattan Bank, 986 F.2d 580, 583 (1st Cir.1993). We turn, therefore, to the text of the Plan. The Plan documents give MetLife “the exclusive right, in [its] sole discretion, to interpret the Plan and decide all matters arising thereunder....” The documents further provide that any decision by MetLife in the exercise of that authority “shall be conclusive and binding on all persons unless it can be shown that the ... determination was arbitrary and capricious.” This discretionary grant hardly could be clearer. Consequently, the arbitrary and capricious standard applies to judicial review of MetLife’s determination. In an effort to blunt the force of this reasoning, the plaintiff makes two points. First, he suggests that a less deferential standard of review is appropriate in this case because the plan administrator operated under a conflict of interest. As a purely theoretical matter, this suggestion rests on a sound foundation. It is well settled that when a plan administrator labors under a conflict of interest, courts may cede a diminished degree of deference — or no deference at all — to the administrator’s determinations. See, e.g., Doe v. Travelers Ins. Co., 167 F.3d 53, 57 (1st Cir.1999); Doyle" }, { "docid": "977333", "title": "", "text": "moves for summary judgment with respect to plaintiffs ERISA claims, asserting that there is no dispute as to any issue of material fact and that as a matter of law, MetLife’s denial of plaintiffs long-term disability benefits after twenty-four months was proper. In considering MetLife’s Motion for Summary Judgment, this Court must determine the proper standard by which to review MetLife’s denial of plaintiffs long-term disability benefits. In Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989), the Supreme Court held that “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Where the administrator or fiduciary authority has discretionary authority, an abuse of discretion standard applies. Id. 489 U.S. at 109-111, 109 S.Ct. at 954; Perry v. Simplicity Engineering, 900 F.2d 963, 965 (6th Cir.1990). See also Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d 689, 693-94 (6th Cir.1989), cert. denied, 495 U.S. 905, 110 S.Ct. 1924, 109 L.Ed.2d 288 (1990), reh’g denied, 496 U.S. 932, 110 S.Ct. 2634, 110 L.Ed.2d 654 (1990) (applying arbitrary and capricious standard of review where plan grants discretion to plan administrator). It is undisputed that the following provision is contained in the Master Policy pursuant to which long-term disability benefits are provided under the Schering-Plough LTD Plan. DISCRETIONARY AUTHORITY OF PLAN ADMINISTRATOR AND OTHER PLAN FIDUCIARIES In carrying out their respective responsibilities under the plan, the plan administrator and other plan fiduciaries shall have discretionary authority to interpret the terms of the plan and to determine eligibility for and entitlement to plan benefits in accordance with the terms of the plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect, unless it can be shown that the determination was arbitrary and capricious. Master Policy Claims record at 27. Because the plan provision at issue in the present case clearly grants the plan administrator" }, { "docid": "13334526", "title": "", "text": "as Jones filed a timely notice of appeal. II. ANALYSIS A. Standard of Review The parties agree that when there is no evidence of a conflict of interest, both the district court and this court review de novo an administrator’s denial of benefits pursuant to an ERISA plan, unless the plan .clearly grants to the administrator discretion to construe the terms of the plan or to make benefit determinations. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir.1998) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). The parties also agree that if a plan expressly grants to the administrator such discretion, and there is no evidence of a conflict of interest, both the district court and this court must review the administrator’s denial of benefits under the highly deferential arbitrary-and-capricious standard of review. Moos v. Square D Co., 72 F.3d 39, 41 (6th Cir.1995). Moreover, the parties agree that when reviewing an administrator’s denial of benefits pursuant to an ERISA plan, both the district court and this court may typically review only evidence contained in the administrative record. Wilkins, 150 F.3d at 619. Jones first asserts on appeal that the district court erred by reviewing under the arbitrary-and-eapricious standard the denial of her claim for PAI benefits, arguing that MetLife had a conflict of interest due to its status as both the insurer and an administrator of the Plan. In response, MetLife argues that Jones has not preserved her argument that the district court should have modified the arbitrary-and-capricious standard, as Jones conceded in the district court that' the arbitrary-and-eapricious standard applies and failed to raise in the district court MetLife’s alleged conflict of interest. We conclude that Jones failed to preserve her argument that the district court should have reviewed under a modified-arbitrary-and-capricious standard MetLife’s denial her claim for PAI benefits. Jones conceded below that the denial of her claim for PAI benefits should be evaluated under the arbitrary-and-eapri-cious standard and did not assert below that this standard should be modified due to MetLife’s alleged" }, { "docid": "10583614", "title": "", "text": "syndrome” (Ross Aff. ¶ 3). Dr. Ross concurred with Dr. Randolph that Donato was disabled (id. ¶ 4). After bringing this action early in 1992, Donato submitted further documents (including Dr. Ross’ evaluation) for MetLife’s review. MetLife in turn forwarded those documents to UMAC for another review. This time a second roundtable of physicians, which again included an allergist/immunologist, issued a report reaching conclusions that were for all effective purposes coterminous with those found in UMAC I (D.Ex. F). Needless to say, MetLife did not reverse course and reinstate Donato’s benefits. This Court, which has jurisdiction of this action pursuant to ERISA and 28 U.S.C. § 1331, now reviews MetLife’s decisions. Standard of Review At the outset this Court is called upon to determine whether to apply a de novo standard (as Donato urges) or an “arbitrary and capricious” standard (as contended for by MetLife) in reviewing MetLife’s denial of benefits. On that score MetLife clearly has the better of the argument. Because ERISA does not prescribe any specific standard for reviewing a trust administrator’s decision, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110-11, 109 S.Ct. 948, 953-54, 103 L.Ed.2d 80 (1989) reconfirmed that the standard is to be drawn from trust law. After reviewing the general principles of trust law Bruch, 489 U.S. at 115, 109 S.Ct. at 956 held that when an administrator or fiduciary interprets plan terms, ERISA calls for de novo review of that decision “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan” — an exception that, given the ready ability of administrators to draft plans in that fashion, promises to swallow up the rule itself. And to that end, of course, no magic formulation (such as the necessity to use the word “discretion” itself) is required to grant discretion to an administrator (see Petrilli v. Drechsel, 910 F.2d 1441, 1447 (7th Cir.1990) and cases cited there). But to return to Bruch, that opinion expressly defined its scope in these terms (489 U.S. at 108, 109 S.Ct." }, { "docid": "22846123", "title": "", "text": "beneficiaries than before ERISA’s enactment, contravening ERISA’s goal of protecting the inter ests of Plan members and their beneficiaries. Firestone, 489 U.S. at 109-110, 109 S.Ct. at 953-954. When a plan does not grant an administrator discretion to interpret ambiguous plan terms, the Court held that an administrator’s denial of benefits would not be reviewed under an arbitrary or capricious standard. [A] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard, unless the benefit plan gives the administrator authority to determine eligibility for benefits or to construe the terms of the plan. Firestone, 489 U.S. at 115, 109 S.Ct. at 956-957. Hence, we must first decide whether the terms of this Plan grant the Administrator discretion to act as a finder of facts to decide who Luby’s lawful beneficiary really was, thus warranting deference for his decision to pay the death benefit to Golosky. We conclude that the Plan neither expressly nor impliedly grants such discretion. A. Administrator Discretion Under the Plan Whether a plan administrator’s exercise of power is mandatory or discretionary depends upon the terms of the plan. Drawing from trust law principles, the Court in Firestone noted that the terms of the plan are construed without deferring to either party’s interpretation. 489 U.S. at 112, 109 S.Ct. at 955. “The terms of trusts created by written instruments are ‘determined by the provisions of the instrument as interpreted in light of all the circumstances and such other evidence of the intention of the settlor with respect to the trust is not inadmissable.’ ” Id. (quoting Restatement (Second) of Trusts § 4, comment d (1959)). Here the Fund admits that the terms of the Plan do not specifically grant the Plan Administrator authority to make beneficiary determinations. The Fund contends that the Plan, taken as a whole, impliedly grants the Administrator authority to do so. Diseretionarv powers mav be implied by a plan’s terms even if not granted expressly. See De Nobel v. Vitro Corp., 885 F.2d 1180, 1187 (4th Cir.1989) (no “magic words,” such as “discretion is granted ...,” need be" }, { "docid": "977334", "title": "", "text": "Plan, 887 F.2d 689, 693-94 (6th Cir.1989), cert. denied, 495 U.S. 905, 110 S.Ct. 1924, 109 L.Ed.2d 288 (1990), reh’g denied, 496 U.S. 932, 110 S.Ct. 2634, 110 L.Ed.2d 654 (1990) (applying arbitrary and capricious standard of review where plan grants discretion to plan administrator). It is undisputed that the following provision is contained in the Master Policy pursuant to which long-term disability benefits are provided under the Schering-Plough LTD Plan. DISCRETIONARY AUTHORITY OF PLAN ADMINISTRATOR AND OTHER PLAN FIDUCIARIES In carrying out their respective responsibilities under the plan, the plan administrator and other plan fiduciaries shall have discretionary authority to interpret the terms of the plan and to determine eligibility for and entitlement to plan benefits in accordance with the terms of the plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect, unless it can be shown that the determination was arbitrary and capricious. Master Policy Claims record at 27. Because the plan provision at issue in the present case clearly grants the plan administrator and fiduciaries discretion to interpret the terms of the plan and to determine benefit eligibility under the plan, a deferential, standard of review is appropriate. See Baker v. United Mine Workers of Am. Health & Retirement Funds, 929 F.2d 1140, 1144 (6th Cir.1991) (employing deferential review where plan granted trustee discretionary authority to determine issues concerning eligibility for benefits); Johnson v. Eaton Corp., 970 F.2d 1569, 1570-71 (6th Cir.1992), reh’g denied. However, plaintiff asserts that the arbitrary and capricious standard of review is not proper in this case because discretionary authority under the plan is limited only to the Schering-Plough Corporation, whom plaintiff alleges is the plan administrator. According to the record in this case, however, it is undisputed that MetLife administered benefits to plaintiff under the Schering-Plough long-term disability plan and that MetLife made the final decision denying plaintiff long term disability benefits under the plan. Thus, plaintiffs arguments that discretionary authority under the plan is limited only to the Schering-Plough Corporation and that MetLife’s denial of benefits to plaintiff should not be reviewed" }, { "docid": "977335", "title": "", "text": "and fiduciaries discretion to interpret the terms of the plan and to determine benefit eligibility under the plan, a deferential, standard of review is appropriate. See Baker v. United Mine Workers of Am. Health & Retirement Funds, 929 F.2d 1140, 1144 (6th Cir.1991) (employing deferential review where plan granted trustee discretionary authority to determine issues concerning eligibility for benefits); Johnson v. Eaton Corp., 970 F.2d 1569, 1570-71 (6th Cir.1992), reh’g denied. However, plaintiff asserts that the arbitrary and capricious standard of review is not proper in this case because discretionary authority under the plan is limited only to the Schering-Plough Corporation, whom plaintiff alleges is the plan administrator. According to the record in this case, however, it is undisputed that MetLife administered benefits to plaintiff under the Schering-Plough long-term disability plan and that MetLife made the final decision denying plaintiff long term disability benefits under the plan. Thus, plaintiffs arguments that discretionary authority under the plan is limited only to the Schering-Plough Corporation and that MetLife’s denial of benefits to plaintiff should not be reviewed under the arbitrary and capricious standard are without merit. Furthermore, it is undisputed that MetLife is a fiduciary under the plan , and the plan’s language expressly gives fiduciaries discretionary authority under the plan. Because it is clear that the plan in this case expressly gives discretionary authority to MetLife to determine eligibility for benefits and to construe the terms of the plan, it is proper to review MetLife’s denial of benefits to plaintiff under the arbitrary and capricious standard of review. Since this Court has determined that MetLife’s denial of benefits to plaintiff must be reviewed under an arbitrary and capricious standard, we .must now determine whether, as a matter of law, MetLife’s actions comported with this standard. It is well-established that the arbitrary or capricious standard is the least demanding form of judicial review of administrative action. Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d 689, 693-94 (6th Cir.1989), cert. denied, 495 U.S. 905, 110 S.Ct. 1924, 109 L.Ed.2d 288 (1990). In Miller v. Metropolitan Life Ins. Co., 925 F.2d 979 (6th" }, { "docid": "22593827", "title": "", "text": "MetLife wrote that, taking into account available accommodations, the plaintiff had not established an inability to perform substantially all the duties of his job. After exhausting his administrative remedies, the plaintiff filed suit in the United States District Court for the District of Massachusetts. He asserted that MetLife had violated ERISA when it unreasonably denied his claim. In due season, the parties cross-moved for summary judgment. The district court granted the defendants’ motion and denied the plaintiffs counter part motion. Leahy v. Raytheon Co., No. 00-CV-12093, slip op. (D.Mass. Jan. 29, 2002) (unpublished). The court noted that the Plan vested broad discretionary authority in MetLife to determine eligibility for benefits and declared that while some medical evidence supported the plaintiffs claim of disability, other evidence supported MetLife’s denial of benefits. On that scumbled record, the court ruled that MetLife’s determination was neither arbitrary nor capricious. This timely appeal followed. II. Standard of Review This denial-of-benefits claim arises under 29 U.S.C. § 1132(a)(1)(B). The Supreme Court has provided the ground rules for determining the proper standard of review. In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Court stated that when a denial of benefits is challenged under ERISA § 1132(a)(1)(B), the standard of review depends largely upon whether “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone, 489 U.S. at 115, 109 S.Ct. 948. If so, “Firestone and its progeny mandate a deferential ‘arbitrary and capricious’ standard of review.” Recupero v. New Engl. Tel. & Tel. Co., 118 F.3d 820, 827 (1st Cir.1997) (quoting Firestone, 489 U.S. at 115, 109 S.Ct. 948). The threshold question, then, is whether the provisions of the employee benefit plan under which remediation is sought reflect a clear grant of discretionary authority to determine eligibility for benefits. Terry v. Bayer Corp., 145 F.3d 28, 37 (1st Cir.1998); Rodriguez-Abreu v. Chase Manhattan Bank, 986 F.2d 580, 583 (1st Cir.1993). We turn, therefore, to the text of the Plan. The Plan documents" }, { "docid": "10521779", "title": "", "text": "Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538. Standard of Review for Denial of Benefits under ERISA The ERISA statute itself does not dictate a standard of review. However, the Supreme Court addressed the issue in Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), and determined that: a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.... Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a faeto[r] in determining whether there is an abuse of discretion. Id. at 115, 109 S.Ct. 948 (citation omitted). Under Firestone, when a plan grants its administrator discretionary authority, courts should limit review of the administrator’s decision to abuse of discretion. Firestone also instructs that a discretionary administrator’s conflict of interest should influence the amount of deference a court shows in its review of the decision under the abuse of discretion standard. The Third Circuit has subsequently held that when the language of a plan gives the administrator discretionary authority, courts must apply the arbitrary and capricious standard of review. See Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 44-45 (3d Cir.1993). Under that highly deferential standard of review, a court must defer to the administrator’s decision unless the decision “is not clearly supported by the evidence in the record or the administrator has failed to comply with the procedures required by the plan.” Id. at 41. The discretion required to trigger the arbitrary and capricious standard of review can be express or implied from the plan’s terms. See Luby v. Teamsters Health Welfare and Pension Trust Funds, 944 F.2d 1176, 1180 (3d Cir.1991). The Courts of Appeals have gone in somewhat different directions in their efforts to interpret Firestone’s instruction that a conflict of interest should be a “factor” in determining" }, { "docid": "5584493", "title": "", "text": "to determine eligibility for benefits or to construe the terms of the plan.” Id. at 115, 109 S.Ct. 948. When a claim administrator demonstrates that it possesses such discretionary authority, “[t]rust principles make a deferential standard of review appropriate.” Id. at 111, 109 S.Ct. 948; see, e.g., Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d 133, 137 n. 2 (2d Cir.2010) (“In an action under 29 U.S.C. § 1132(a)(1)(B), the district court conducts arbitrary-and-capricious review of ERISAfund administrators’ discretionary decisions.”). In other words, “[w]hen an employee benefit plan grants a plan fiduciary discretionary authority to construe the terms of the plan, a district court must review deferentially a denial of benefits challenged under § 502(a)(1)(B). The court may reverse only if the fiduciary’s decision was arbitrary and capricious.” Miller v. United Welfare Fund, 72 F.3d 1066, 1070 (2d Cir.1995) (citing Firestone, 489 U.S. at 115, 109 S.Ct. 948; Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir.1995)). Here, the Plan granted MetLife “the discretionary authority to interpret the terms of the Plan and to determine entitlement to Plan benefits in accordance with the terms of the Plan,” and “[a]ny interpretation or determination made pursuant to such discretionary authority shall be given full force and effect.” STD Benefits Summary Plan Description, Hallford Dec. Ex. A, at 41 (“STD SPD”); see also LTD Benefits Summary Plan Description, Hall-ford Dec. Ex. A, at 74 (“LTD SPD”). Furthermore, the Plan grants the Plan Administrator “full power and discretion to resolve all issues concerning eligibility, status, entitlement to benefits, and any other interpretations under the MetLife Options Plus program” with respect to both STD and LTD coverage. STD SPD 19; LTD SPD 58. This language has been held to vest MetLife with full discretionary authority. See, e.g., Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 79 (2d Cir.2009); Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 622 (2d Cir.2008). Therefore, a deferential arbitrary-and-capricious standard of review is applicable in this case. Under the arbitrary-and-capricious standard, a court cannot “overturn a decision to deny or terminate benefits unless ‘it was" }, { "docid": "10521784", "title": "", "text": "influenced that decision. See Pinto, 214 F.3d at 395. The Third Circuit described the type of evidence the court may consider when evaluating the seriousness of the conflict: the sophistication of the parties, the information accessible to the parties, the exact financial relationship between the insurer and the employer company, the current status of the fiduciary, and the stability of the employer company. Id. at 392. Such evidence equips the district court to review the contested decision under an “arbitrary and capricious” standard heightened according to the potency of the conflict. Application If the Policy grants discretionary authority to Reliance, its decision to deny Friess benefits must be reviewed under the arbitrary and capricious standard. The Policy does not contain an express grant of discretionary authority to the administrator, Reliance; rather, it provides that Reliance will pay benefits if the insured submits “satisfactory proof’ of total disability. The grant of discretion in the policy does not need to be explicit to trig ger the arbitrary and capricious review standard. The Third Circuit has recognized that discretionary authority may be implied in a plan’s terms even if not granted expressly. See Luby, 944 F.2d at 1180. The Third Circuit in Pinto found discretionary authority conveyed in the exact “satisfactory proof’ language used in the Policy. Considering a provision requiring submission of satisfactory proof of total disability, the Third Circuit concluded: “It is undisputed that Reliance Standard had discretion to interpret the plan.” Pinto, 214 F.3d at 379. The identical language in the Policy before this court, therefore, invests Reliance with discretion over benefit determinations. While Reliance has discretion, if its judgment is compromised by conflicts of interest, the highly deferential standard of arbitrary and capricious review must be adapted. Conflicts must be factored into the deference shown to the administrator’s determination. In this case, Woodward and Lothrop paid Reliance to fund, interpret, and administer its LTD plan. In Pinto, the Third Circuit concluded that such an arrangement “generally presents a conflict and thus invites a heightened standard of review.” Pinto, 214 F.3d at 383. Simply by the terms of its arrangement" }, { "docid": "21196461", "title": "", "text": "bench trial on the administrative record, the district court concluded that the Plan hadn’t abused its discretion and denied Saffon any relief. Standard of Review 1. We review benefits denials de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits;” if the plan does grant such discretionary authority, we review the administrator’s decision for abuse of discretion. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Here, the Plan’s Summary Plan Description states: In carrying out their respective responsibilities under the Plan, the Plan administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits in accordance with the terms of the Plan. Saffon argues that we must review Met-Life’s decision de novo because it is unclear whether the Summary Plan Description’s discretionary clause refers to MetLife. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999) (en banc) (we defer only if the grant of discretionary authority is “unambiguous[ ]”). Saffon sees an ambiguity in the fact that the Summary Plan Description doesn’t refer to MetLife by name; instead, it grants discretionary authority to “the Plan administrator [Wells Fargo] and other Plan fiduciaries.” But it’s perfectly clear that MetLife is included in this grant of discretionary authority because it is one of the “other Plan fiduciaries” mentioned there. A “fiduciary” is an entity with “any discretionary authority” in the “administration of’ an ERISA plan. 29 U.S.C. § 1002(21)(A). See Aetna Health Inc. v. Davila, 542 U.S. 200, 220, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (“When administering employee benefit plans, HMOs must make discretionary decisions regarding eligibility for plan benefits, and, in this regard, must be treated as plan fiduciaries.”). MetLife’s Certificate of Insurance provides that “MetLife in its discretion has authority to interpret the terms, conditions, and provisions of the entire contract.” The Summary Plan Description explains that the Plan “is ... administered by [MetLife].” “To qualify for LTD benefits,” beneficiaries must “[rjeceive approval for" }, { "docid": "2701336", "title": "", "text": "plan administrator, then we review the plan administrator’s decision for an abuse of discretion. Id. We reverse the plan administrator’s decision “only if it is arbitrary and capricious.” Hebert v. SBC Pension Benefit Plan, 354 F.3d 796, 799 (8th Cir.2004). We review de novo the district court’s determination of the appropriate standard of review of a benefit plan decision under ERISA. Ortlieb, 387 F.3d at 781. Groves contends the district court erred in failing to apply a de novo standard of review because the Plan did not properly delegate discretionary authority to MetLife. We disagree. The Plan booklet distributed to Great Lakes employees, which summarized the Plan for employees, states: In the event that you properly submit a claim to be paid by the Plan and the Plan denies the claim, you can appeal the denial through the appeal process outlined above. However, if the appeal is made through the internal appeals process, or to a court of law, you, by virtue of your participation in the Plan, agree that the standard for review of the denial of the claim will be whether the denial was made in an arbitrary and capricious manner. Furthermore, the Plan Sponsor has discretionary authority to determine eligibility for benefits and interpret uncertain terms, unaddressed items, and other Plan [provisions]. The Plan booklet also states Great Lakes appointed an administrator “to process and pay claims for these benefits in accordance with the terms of the Plan.” We conclude the Plan provides discretionary authority to MetLife as plan administrator. According tp the Plan booklet, the “Plan Sponsor,” Great Lakes, had discretionary authority to determine benefits eligibility, and Great Lakes granted its discretionary authority to the plan administrator, MetLife, to act as its delegate. Accordingly, the district court properly applied an abuse of discretion standard of review in analyzing MetLife’s decision to terminate Groves’s long-term disability benefits. B. MetLife’s Decision to Terminate Benefits Having determined the district court applied the correct standard of re view, we next address whether MetLife abused its discretion in terminating Groves’s long-term disability benefits. We review de novo the district court’s grant" }, { "docid": "5584494", "title": "", "text": "Plan and to determine entitlement to Plan benefits in accordance with the terms of the Plan,” and “[a]ny interpretation or determination made pursuant to such discretionary authority shall be given full force and effect.” STD Benefits Summary Plan Description, Hallford Dec. Ex. A, at 41 (“STD SPD”); see also LTD Benefits Summary Plan Description, Hall-ford Dec. Ex. A, at 74 (“LTD SPD”). Furthermore, the Plan grants the Plan Administrator “full power and discretion to resolve all issues concerning eligibility, status, entitlement to benefits, and any other interpretations under the MetLife Options Plus program” with respect to both STD and LTD coverage. STD SPD 19; LTD SPD 58. This language has been held to vest MetLife with full discretionary authority. See, e.g., Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 79 (2d Cir.2009); Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 622 (2d Cir.2008). Therefore, a deferential arbitrary-and-capricious standard of review is applicable in this case. Under the arbitrary-and-capricious standard, a court cannot “overturn a decision to deny or terminate benefits unless ‘it was without reason, unsupported by substantial evidence or erroneous as a matter of law.’ ” Fuller v. J.P. Morgan Chase & Co., 423 F.3d 104, 107 (2d Cir. 2005) (quoting Pagan, 52 F.3d at 442). “Substantial evidence” is defined as “such evidence that a reasonable mind might accept as adequate to support the conclusion reached.... [It] requires more than a scintilla but less than a preponderance.” Miller, 72 F.3d at 1072 (citation omitted). Where, as here, the administrator of an ERISA plan “both evaluates claims for benefits and pays benefits” there is a “structural” conflict of interest. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 112, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). When a plan administrator “is operating under a conflict of interest, that conflict must be weighed as a ‘faetor[] in determining whether there is an abuse of discretion.’ ” Firestone, 489 U.S. at 115, 109 S.Ct. 948 (quoting Restatement (Second) of Trusts § 187 cmt. d (1959)). The Supreme Court has determined “that this dual role creates a conflict of interest; that" }, { "docid": "4145923", "title": "", "text": "that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In ruling on MetLife’s motion for summary judgment, I must draw all reasonable inferences in favor of Dillard Sangster, the non-moving party. See Perez v. Aetna Life Ins. Co., 150 F.3d 550, 554 (6th Cir.1998) (citing Timmer v. Mich. Dep’t of Commerce, 104 F.3d 833, 842 (6th Cir.1997)). III. Analysis The threshold question is whether Met-Life had discretionary authority under the Ameritech Plan. The procedure to follow in addressing this is stated in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), in which the Supreme Court held that an ERISA plan administrator’s benefits decision is to be reviewed de novo unless the benefit plan gives the administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan. See id. at 115, 109 S.Ct. 948. In Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376 (6th Cir.1996), the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) interpreted Firestone to require that a benefit plan’s grant of discretionary authority to the administrator must be “express.” Id. at 380. Ameritech Plan’s grant of discretionary authority satisfies the Yeager requirement. The Plan states: “In carrying out their respective responsibilities under the Program, the insurance companies have full discretionary authority to interpret the terms of the Program and to determine eligibility for an entitlement to Program benefits in accordance with the terms of the Program.” (Plan at 20.) These clear terms make de novo review improper. Given the express grant of discretion, the proper standard for me to apply to MetLife’s decision to deny accidental death benefits is, according to Firestone, a deferential one based on trust principles. See 489 U.S. at 111, 109 S.Ct. 948 (“A trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee’s interpretation will not be disturbed if reasonable”). Guided by Firestone, the Sixth Circuit has selected the arbitrary and capricious standard to test the reasonableness of decisions made" }, { "docid": "13334529", "title": "", "text": "347 F.3d 161, 172 (6th Cir.2003). “Under this deferential ‘arbitrary and capricious’ standard, we will uphold a benefit determination if it is ‘rational in light of the plan’s provisions.’ ” Univ. Hosps. of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 846 (6th Cir.2000) (quoting Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir.1996)). The arbitrary-and-capricious standard, however, does not require us merely to rubber stamp the administrator’s decision. McDonald, 347 F.3d at 172. Under the arbitrary-and-capricious standard, both the district court and this court must exercise review powers. Id: B. Definition of Accident Jones next argues on appeal that the district court erred by concluding that MetLife’s definition of the term “accident” is not arbitrary or capricious. Jones asserts that the district court should have applied the federal-common-law definition of accident promulgated by the First Circuit in Wickman, which merely requires the claimant to' demonstrate that the injury was neither subjectively expected nor objectively foreseeable. In response, Met-Life argues that the district court properly held that MetLife’s definition of the term “accident” is not arbitrary or capricious. MetLife asserts that Wickman is distinguishable, in that there the insured’s “injuries resulted from an occurrence outside the usual course of events.” Appellee’s Br. at 32. MetLife argues that several federal cases decided under the arbitrary- and-capricious standard have upheld administrators’ interpretation of “accident” as requiring “unusual activity” or an “external force or event.” At the outset, we note that because the Plan expressly granted to MetLife authority to interpret the Plan, we must give deference to MetLife’s interpretation of ambiguous and general terms of the Plan. See Admin. Comm. of the Sea Ray Employees’ Stock Ownership & Profit Sharing Plan v. Robinson, 164 F.3d 981, 986 (6th Cir.1999), cert. denied, 628 U.S. 1114, 120 S.Ct. 931, 145 L.Ed.2d 810 (2000); Moos, 72 F.3d at 42-43. Discretion to interpret a plan, however, does not include the authority to add eligibility requirements to the plan. See Univ. Hosps. of Cleveland, 202 F.3d at 849-50. We conclude that MetLife acted arbitrarily and capriciously when it interpreted the term “accident” in" }, { "docid": "977336", "title": "", "text": "under the arbitrary and capricious standard are without merit. Furthermore, it is undisputed that MetLife is a fiduciary under the plan , and the plan’s language expressly gives fiduciaries discretionary authority under the plan. Because it is clear that the plan in this case expressly gives discretionary authority to MetLife to determine eligibility for benefits and to construe the terms of the plan, it is proper to review MetLife’s denial of benefits to plaintiff under the arbitrary and capricious standard of review. Since this Court has determined that MetLife’s denial of benefits to plaintiff must be reviewed under an arbitrary and capricious standard, we .must now determine whether, as a matter of law, MetLife’s actions comported with this standard. It is well-established that the arbitrary or capricious standard is the least demanding form of judicial review of administrative action. Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d 689, 693-94 (6th Cir.1989), cert. denied, 495 U.S. 905, 110 S.Ct. 1924, 109 L.Ed.2d 288 (1990). In Miller v. Metropolitan Life Ins. Co., 925 F.2d 979 (6th Cir.1991), the Sixth Circuit stated that an “ERISA benefit plan administrator’s decisions on eligibility for benefits are not arbitrary and capricious if they are ‘rational in light of the plan’s provisions.’ ” Id. at 984 (quoting Daniel v. Eaton Corp., 839 F.2d 263, 267 (6th Cir.1988), cert. denied, 488 U.S. 826, 109 S.Ct. 76, 102 L.Ed.2d 52 (1988)). However, “if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘factor[ ] in determining whether there is an abuse of discretion.’” Id. (quoting Bruch, 489 U.S. at 114-15, 109 S.Ct. at 956-57 (citations omitted)). Because premiums are paid to MetLife by or on behalf of plaintiff under the Schering-Plough plan, plaintiff alleges that it would be adverse to MetLife’s financial interests to extend disability benefits to individuals such as the plaintiff. Thus, plaintiff contends that MetLife operated under an alleged conflict of interest in denying plaintiff long-term disability benefits under the plan, and that this Court should apply a de" }, { "docid": "4145924", "title": "", "text": "Sixth Circuit (“Sixth Circuit”) interpreted Firestone to require that a benefit plan’s grant of discretionary authority to the administrator must be “express.” Id. at 380. Ameritech Plan’s grant of discretionary authority satisfies the Yeager requirement. The Plan states: “In carrying out their respective responsibilities under the Program, the insurance companies have full discretionary authority to interpret the terms of the Program and to determine eligibility for an entitlement to Program benefits in accordance with the terms of the Program.” (Plan at 20.) These clear terms make de novo review improper. Given the express grant of discretion, the proper standard for me to apply to MetLife’s decision to deny accidental death benefits is, according to Firestone, a deferential one based on trust principles. See 489 U.S. at 111, 109 S.Ct. 948 (“A trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee’s interpretation will not be disturbed if reasonable”). Guided by Firestone, the Sixth Circuit has selected the arbitrary and capricious standard to test the reasonableness of decisions made by ERISA claim administrators who have discretionary authority. See Wendy’s Int’l, Inc. v. Karsko, 94 F.3d 1010, 1012 (6th Cir.1996). That standard states: “An ERISA benefit plan administrator’s decisions on eligibility for benefits are not arbitrary and capricious if they are ‘rational in light of the plan’s provisions.’ ” Yeager, 88 F.3d at 381 (quoting Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 984 (6th Cir.1991)). In conducting this rationality inquiry, I consider only those facts known to the Met-Life claim administrator at the time he or she made the decision to deny accidental death benefits. See Miller, 925 F.2d at 986. Having determined that the arbitrary and capricious standard must be applied here, I must then determine whether the MetLife claim administrator’s decision to deny accidental death benefits to Brenda Sangster’s beneficiaries is rational in light of the Ameritech Plan’s accidental death provisions. Those provisions limit accidental death benefits eligibility to a Plan participant whose death is from injuries “caused solely by an accident.” (Plan at 8.) The effect of the “caused solely”" }, { "docid": "4493798", "title": "", "text": "to the plaintiff, and accept all factual allegations as true, a court is not required to accept as true unwarranted legal .conclusions and/or factual allegations. Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). We review the plan administrator’s denial of benefits de novo, unless the benefit plan specifically gives the plan administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir.1996). Where an ERISA plan gives the plan administrator such discretionary authority, we review under an “arbitrary and capricious” standard. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Review under the arbitrary and capricious standard is the least demanding form of judicial review of an administrative action; it requires only an explanation based on substantial evidence that results from a deliberate and principled reasoning process. See Killian v. Healthsource Provident Adm’rs Inc., 152 F.3d 514, 520 (6th Cir.1998). MetLife was the claims fiduciary of the subject Plan and was granted express authority and discretion to interpret the Plan and administer claims and benefits. As the plan administrator, MetLife determined that Mr. Morrison was ineligible to participate in M & M’s portable life insurance product because he was a resident of Michigan. Thus, if Met-Life’s interpretation of the Plan’s provisions is “reasonable,” it must be upheld. Firestone, 489 U.S. at 111, 109 S.Ct. 948; Baker v. UMWA Health & Retirement Funds, 929 F.2d 1140, 1144 (6th Cir.1991). The issue of reasonableness is a question of law, which this Court reviews de novo. Waxman v. Luna, 881 F.2d 237, 240 (6th Cir.1989). A. Portable Life Insurance in Michigan We acknowledge that Mrs. Morrison is seeking payment on a policy that MetLife could not issue under Michigan state law. The district court found, and we agree, that MetLife could not have legally issued portable term coverage to Morrison’s husband because the Michigan Insurance Bureau (“Bureau”) had denied MetLife’s application for approval of this product. As a matter of public policy, this" }, { "docid": "5110180", "title": "", "text": "In finding this to be the standard, the Supreme Court relied heavily upon principles of trust law as well as the Congressional intent behind ERISA. Id. To determine whether the Plan at issue grants the fiduciary or administrator the requisite discretionary power under Firestone, thereby foreclosing application of the de novo standard, the plain language of the instrument is controlling. Firestone, 489 U.S. at 112, 109 S.Ct. at 955. The First Circuit Court of Appeals has stated that: The Firestone rule has been interpreted to mean that a benefits plan must clearly grant discretionary authority to the administrator before decisions will be accorded the deferential, arbitrary and capricious, standard of review. Rodriguez-Abreu v. Chase Manhattan Bank, 986 F.2d 580, 583 (1st Cir.1993). Moreover, interpretation of Plan terms and determination of the validity of claims are not, in themselves, discretionary functions. Id. In order to meet the Firestone test, the Plan must, therefore, include a clear grant of discretionary authority. There is, however, some dispute over how specifically a grant of discretion must be worded. Firestone does not require the use of the word “discretion” or other “magic words” to endow an administrator with such authority. Kiley v. Travelers Indemnity Co. of Rhode Island, 853 F.Supp. 6, 10 (D.Mass.1994) (citing Wildbur v. ARCO Chemical Co., 974 F.2d 631, 637 (5th Cir.1992)). The Third Circuit Court of Appeals has found that discretionary powers may be implied by the terms of a plan, even if not granted expressly. Luby v. Teamsters Health, Welfare & Pension Trust Funds, 944 F.2d 1176, 1180 (3rd Cir.1991) (relying upon de Nobel v. Vitro Corp., 885 F.2d 1180, 1187 (4th Cir.1989) which held that no “magic words” were required so long as the plan “on its face clearly grants such discretion”). On the other hand, the Fifth Circuit has specifi cally held that discretion cannot be implied and that plain language in the plan giving discretion is necessary, Wildbur, 974 F.2d at 637, and the Eleventh Circuit has found discretion in a Plan which provides that the Administrator’s reasonable determinations shall be “final and conclusive.” Kiley, 853 F.Supp." } ]

[ { "docid": "22081779", "title": "", "text": "conferred upon-United States courts and could not be inferred, and because § 35, like all the other sections of' c. 4, contains no reference to the high seas as a part of the locus of the offenses defined by 'it, as the sections in cc. 11 and 12 of the Criminal Code do, § 35 must be construed not to extend to acts committed on the high seas. It confirmed its conclusion by the statement that § 35 had never been invoked to punish offenses denounced if committed on the high seas or in a foreign country. We have in this case a question of statutory construction. The necessary locus, when not specially defined, depends upon the purpose of Congress as evinced by the description and nature of the crime and upon the territorial limitations upon the power and jurisdiction of a government to punish crime under the law of nations. Crimes against private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement and frauds of all kinds, which affect the peace and good order of the community, must of course be committed within the territorial jurisdiction of the government where it may properly exercise it. If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard. We have an example of this in the attempted application of the prohibitions of the Anti-Trust Law to acts done by citizens of the United States against other such citizens in a foreign country. American Banana Co. v. United Fruit Co., 213 U. S. 347. That was., a civil case, but as the statute is criminal as well as civil, it presents an analogy. But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or" } ]

[ { "docid": "15999017", "title": "", "text": "a statute designed to serve this protective function, and — where the statute proscribes acts that could just as readily be performed outside the United States as within it — (b) undermine this protective intention by limiting the statute’s application to United States territory. Given that foreign nationals are in at least as good a position to perform extraterritorial conduct as are United States nationals, it would make little sense to restrict such statutes to United States nationals. To paraphrase Bowman, “to limit [a statute’s coverage to United States nationals] would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed [by foreign nationals] as [by United States nationals].” Bowman, 260 U.S. at 98, 43 S.Ct. 39. Second, the Courts of Appeals — focusing on Bowman’s general rule rather than its peculiar facts — have applied this rule to reach conduct by foreign nationals on foreign soil. For example, the Court of Appeals for this Circuit has held that 18 U.S.C. § 1546, which criminalizes the making of false statements with respect to travel documents, was intended by Congress to apply extraterritorially to the conduct of foreign nationals. See United States v. Pizzarusso, 388 F.2d 8, 9 (2d Cir.), cert. denied, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968); see also United States v. Larsen, 952 F.2d 1099, 1101 (9th Cir.1991) (21 U.S.C. § 841(a)(1) — possession of narcotics with intent to distribute); United States v. Wright-Barker, 784 F.2d 161, 167 (3d Cir.1986) (same); United States v. Orozco-Prada, 732 F.2d 1076, 1088 (2d Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 154, 83 L.Ed.2d 92 (1984) (same); United States v. Benitez, 741 F.2d 1312, 1317 (11th Cir.1984), cert. denied, 471 U.S. 1137, 105 S.Ct. 2679, 86 L.Ed.2d 698 (1985) (18 U.S.C. § 2112 — theft of personal property of the United States); United States v. Zehe, 601 F.Supp. 196, 200 (D.Mass.1985) (18 U.S.C. §§ 792-799 — espionage). Indeed, the Eleventh Circuit has held that one of the statutes targeted by Odeh, viz., 18 U.S.C. § 1114" }, { "docid": "422511", "title": "", "text": "Employment Opportunity Commission v. Arabian American Oil Co. (Aramco), 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991). The Supreme Court has recognized as a longstanding principle of American law “ ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’” Id. (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949)); see also Small v. United States, 544 U.S. 385, 125 S.Ct. 1752, 1755, 161 L.Ed.2d 651 (2005). We must assume that Congress legislates against the backdrop of the presumption against extraterritoriality. Aramco, 499 U.S. at 248, 111 S.Ct. 1227. Unless the “affirmative intention” of Congress to give extraterritorial effect to a statute is “clearly expressed,” it is presumed that the statute is “primarily concerned with domestic conditions.” Id. (quoting Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957) and Foley Bros., 336 U.S. at 285, 69 S.Ct. 575). The presumption against extraterritoriality has been recognized in the specific context of criminal statutes, with an “exception” for a certain class of offenses: Crimes against private individuals or them property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement, and fraud of all kinds, which affect the peace and good order of the community, must of course, be committed within the territorial jurisdiction of the government where it may properly exercise it. If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard---- But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officer or agents. Some such offenses can only be committed within the territorial jurisdiction" }, { "docid": "422516", "title": "", "text": "with intent to distribute fell within “the second category described in Bowman” and thus was intended to apply extraterritorially. Id. at 137. The holding in Baker has been subsequently used to support the “inference” of a congressional intent for extraterritorial application in several circumstances that do not involve crimes against the Government, including child pornography-related offenses. See, e.g., United States v. Harvey, 2 F.3d 1318, 1327 (3d Cir.1993)(sentencing guidelines for child pornography offenses); Thomas, 893 F.2d at 1068-69 (production of child pornography under 18 U.S.C. § 2251). We disagree, however, with Baker s expanded view of the “second category” offenses in Bowman. The phrase “inferred from the nature of the offense” in Bowman was clearly cast in reference to the “class” of criminal statutes involving fraud or obstruction against the Government and is not a free standing principle of statutory construction: But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents.... In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense. 260 U.S. at 98, 43 S.Ct. 39. Accordingly, we adhere to the view we originally expressed in Gladue. The only category of offenses exempt under the language of Bowman from any presumption against extraterritoriality and for which a congressional intent for extraterritorial application can be “inferred from the nature of the offense” are those involving “obstructions” and “frauds” against the Government. See United States v. Gatlin, 216 F.3d 207, 211 n. 5 (2d Cir.2000). (2) Indicia of Congressional Intent Our conclusion that the CPPA is subject to a presumption against extraterritoriality under Aramco and Bowman does not end our inquiry into its applicability. We now “look to see whether ‘language in the [relevant" }, { "docid": "7362972", "title": "", "text": "unless such an intent is clearly manifested.”). For most legislation, the presumption against extraterritoriality makes perfect sense. First, “Congress generally legislates with domestic concerns in mind,” Smith v. United States, 507 U.S. 197, 204 n. 5, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993), so courts can infer from congressional silence that the legislature meant to regulate only activities within the nation’s borders. Second, the rule ensures that we do not precipitate “unintended clashes between our laws and those of other nations which could result in international discord.” Aramco, 499 U.S. at 248, 111 S.Ct. 1227. The Supreme Court has invoked this territorial presumption in numerous cases involving the scope of broad regulatory statutes. See, e.g., Sale, 509 U.S. at 173, 113 S.Ct. 2549 (Immigration and Nationality Act); Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (Title VII); Filardo, 336 U.S. at 285, 69 S.Ct. 575 (federal overtime law); American Banana Co. v. United Fruit Co., 213 U.S. 347, 357, 29 S.Ct. 511, 53 L.Ed. 826 (1909) (Sherman Act). In all of these cases, the Court held that Congress expected that its regulations would end at the national borders. The territorial presumption is thus based on the common-sense inference that, where Congress does not indicate otherwise, legislation dealing with domestic matters is not meant to extend beyond the nation’s borders. But the presumption does not apply where the legislation implicates concerns that are not inherently domestic. For instance, in United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 67 L.Ed. 149 (1922), the Supreme Court held that the territorial presumption does not govern the interpretation of criminal statutes that, by their nature, implicate the legitimate interests of the United States abroad. Bowman concerned fraud committed on a U.S. vessel outside the territorial waters of the United States. Although the statute there did not contain an extraterritoriality provision, the Court concluded that it covered the conduct in question. See also Vasquez-Velasco, 15 F.3d at 839 n. 4 (applying Bowman to violent crimes associated with international drug trafficking); United States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir.1991) (applying Bowman to" }, { "docid": "23194982", "title": "", "text": "and also because, it is said, treason is not committed by a citizen who resides in enemy country and therefore must engage in some trafficking with the enemy. As to the first branch of the argument, the Supreme Court has decided that the Constitution does not forbid the application of the criminal laws of the United States to acts committed by its citizens abroad. It is a question in each case of the intent of the lawmakers. “While the legislation of the Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States, the question of its application, so far as citizens of the United States in foreign countries are concerned, is one of construction, not of legislative power.” Blackmer v. United States, 1931, 284 U.S. 421, 437, 52 S.Ct. 252, 254, 76 L.Ed. 375. See, also, United States v. Bowman, 1922, 260 U.S. 94, 102, 43 S.Ct. 39, 67 L.Ed. 149; American Banana Co. v. United Fruit Co., 1908, 213 U.S. 347, 357, 29 S.Ct. 511, 53 L.Ed. 826, 16 Ann.Cas. 1047; Skiriotes v. Florida, 1940, 313 U.S. 69, 73, 61 S.Ct. 924, 85 L.Ed. 1193. The treason statute, enacted by the first Congress in 1790, supra, condemns the giving to the enemy of “aid and comfort within the United States or elsewhere”. This rebuts any presumption against extra-territorial application of our treason law which might have existed under the general rule. By the statute itself the overt act may be committed outside the United. States. Adherence to the enemy and the treasonable intent, when they exist, attach to the act and to its perpetrator wherever he is. These factors too, therefore, may be outside the United States, and so, accordingly, may the whole of the crime. Aside from the intention of Congress expressed in the statute we are of the opinion that the usual presumption against extra-territorial application of the criminal law does not apply to treason. The purpose of a criminal statute ordinarily is to protect the domestic order, not to reach across national boundaries to take hold of" }, { "docid": "5158408", "title": "", "text": "We have fully considered the argument advanced by the appellant that Congress contemplated extraterritorial application of Title 21 U.S.C. 844(a), thus making indictable the possession of any controlled substance no matter where it was possessed in the universe by an American. Whether Congress in fact intended such extraterritorial application of a penal statute, which Congress clearly had the power to provide, see Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932), is thus the question: Section 844(a), supra, contains no provisions for extraterritorial application. Absent any evidence of a contrary intent, Congressional legislation is ordinarily presumed to apply only intraterritorially. United States v. Pizzarusso, 388 F.2d 8 (2nd Cir. 1968), cert. denied 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968); American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826 (1909). But application of a penal statute is not automatically limited to crimes committed within the territorial jurisdiction of the sovereign just because a penal provision lacks express language that it should be applied extraterritorially. To the contrary, the Supreme Court in United States v. Bowman, 260 U.S. 94, 97-98, 43 S.Ct. 39, 41, 67 L.Ed. 149 (1922), said: The necessary locus, when not specially defined, depends upon the purpose of Congress as evinced by the description and nature of the crime, and upon the territorial limitations upon the power and jurisdiction of a government to punish crime under the law of nations. Crimes against private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement, and frauds of all kinds which affect the peace and good order of the community, must, of course, be committed within the territorial jurisdiction of the government where it may properly exercise it. If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard. . But the same rule of interpretation should not be applied to criminal" }, { "docid": "16886324", "title": "", "text": "United States.\" Restatement (Second) of Foreign Relations Law of the United States § 38 (1965) [hereinafter Restatement (Second) ]; Restatement (Third) of Foreign Relations Law of the United States § 403, Com. (g) (1987) [hereinafter Restatement (Third)]. As stated by the Supreme Court in Aramco, the primary purpose of this presumption against extraterritoriality is “to protect against the unintended clashes between our laws and those of other nations which could result in international discord.” Aramco, — U.S. at —, 111 S.Ct. at 1230. An early example of the application of the extraterritoriality principle is American Banana Co. v. United States Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826 (1909). In that case, the plaintiff alleged that the defendant, a U.S. corporation, had violated United States antitrust laws by inducing a foreign government to take actions within its own territory which were adverse to the plaintiff’s business. The Supreme Court refused, in the absence of a clear statement of extraterritorial scope, to infer congressional intent to apply the federal statute to the conduct of a foreign government because enforcement would have interfered with the exercise of foreign sovereignty. Similarly, in Foley Bros. v. Filardo, 336 U.S. 281, 282, 69 S.Ct. 575, 576, 93 L.Ed. 680 (1949), the Supreme Court declined to give extraterritorial effect to the Eight Hour Law, a labor statute applying to “[ejvery contract made to which the United States ... is a party.” The Court recognized that extraterritorial application of the statute would have “extend[ed] its coverage beyond places over which the United States has sovereignty or has some measure of legislative control,” and therefore held that the intention “to regulate labor conditions, which are the primary concern of a foreign country, should not be attributed to Congress in the absence of a clearly expressed purpose.” Id. at 285-286, 69 S.Ct. at 578. Most recently, in Aramco, the Supreme Court held that Title VII of the 1964 Civil Rights Act does not apply extraterritorially to regulate the employment practices of United States firms that employ American citizens abroad. Aramco, — U.S. at —, 111 S.Ct." }, { "docid": "2023243", "title": "", "text": "applications for identity cards, immunization records, and leave orders in the fictitious names of Sergeant 1st class Jack L. Finn and Sergeant 1st class Vivian L. Finn. Using these aliases, Mr. and Mrs. Birch escaped from Germany on commercial airline flights to the United States. The indictment charged the Birches violated § 499 in Germany. The defendants do not challenge Congress’s constitutional power to punish the extraterritorial forgery or false use of government documents. Instead, they contend (a) that in enacting § 499 Congress did not invoke extraterritorial jurisdiction, or (b) that even if it did, the indictment did not charge intent to de fraud the United States government, an essential predicate for extraterritorial jurisdiction. A federal statute is not necessarily limited to crimes committed within the territorial jurisdiction of the United States because it lacks an express provision that it should be applied extraterri-torially. United States v. Bowman, 260 U.S. 94, 97, 43 S.Ct. 39, 67 L.Ed. 149 (1922), which sanctioned a prosecution for defrauding a government corporation by acts committed on the high seas and in a foreign country, states the rule for determining whether a criminal law should be given extraterritorial effect. There the Court distinguished two classes of penal legislation: statutes punishing crimes against the peace and good order of the community apply only to acts committed within the territorial jurisdiction of the United States unless Congress directs otherwise; in contrast, laws punishing fraud against the government include by implication acts committed in foreign countries. Extraterritoriality for § 499 should be inferred, therefore, because it is concerned with the counterfeiting and misuse of military passes, a species of fraud against the government. Moreover, the origin of § 499 supports this inference. The statute was originally enacted in 1917 when the United States was preparing to send a large expeditionary force to Europe. It is reasonable to assume that Congress was aware that the integrity of military passes would be threatened abroad as well as at home, and it is proper to infer that Congress intended to protect the government against forgery of these papers wherever the" }, { "docid": "5158410", "title": "", "text": "statutes, which are, as a class, not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction or fraud, wherever perpetrated, especially if committed by its own citizens, officers, or agents. Some such offenses can only be committed within the territorial jurisdiction of the government because of the local acts required to constitute them. Others are such that, to limit their locus to the strictly territorial jurisdiction, would be greatly to curtail the scope and usefulness of the statute, and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense. In United States v. Bowman, supra, the Supreme Court discerned two classes of penal statutes: (1) statutes punishing crimes against the peace and good order of the community (which apply only to acts committed within the territorial jurisdiction of the United States unless Congress had specifically directed otherwise); and (2) statutes punishing fraud or obstructions against the United States Government (which include by implication acts which were committed in foreign countries). Since the possession of a controlled substance affects the peace and good order of the community and section 844(a) contains no congressional language to the contrary, the provision is deemed to be intended to apply only within the jurisdictional limits of the United States. Indeed, the natural and probable place of any possession offense is normally within the United States. Moreover, the fact that Congress clearly granted extraterritorial application to 21 U.S.C. § 959, while it omitted a similar grant in 21 U.S.C. § 844, though both statutes regulate narcotics, is even more evidence that section 844 was not intended to be applied extraterritorially. Thus, this conclusion renders it unnecessary for us to consider whether the extraterritorial application of 21 U.S.C. 844(a) is" }, { "docid": "422513", "title": "", "text": "of the Government because of the local acts required to constitute them. Others are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense. Bowman, 260 U.S. at 98, 43 S.Ct. 39. We have previously characterized Bowman as drawing a distinction between: (1) statutes punishing crimes against the peace and good order of the community (which apply only to [acts] committed within the territorial jurisdiction of the United States unless Congress had specifically directed otherwise); and (2) statutes punishing fraud or obstructions against the United States Government (which include by implication acts which were committed in foreign countries). United States v. Gladue, 4 M.J. 1, 5 (C.M.A. 1977). The principles articulated by the Supreme Court in Aramco and Bowman can be harmonized to provide the following analytical framework for assessing whether the CPPA was intended to have extraterritorial effect: Unless the CPPA can be viewed as falling within the second category described in Bowman (“criminal statutes which are, as a class, ... enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated,” 260 U.S. at 98, 43 S.Ct. 39), the statute is subject to the presumption against extraterritoriality recognized in both Bowman and Aramco. We do not believe that the CPPA can be viewed as a “second category” offense under Bowman and thus exempt from application of the presumption against extraterritoriality. The ultimate objective behind the criminal proscription of activities pertaining to child pornography is to protect children from abuse. Free Speech Coalition, 535 U.S. at 245, 122 S.Ct. 1389. While few crimes are more serious or morally repugnant, child abuse does not involve “fraud” or “obstruction”" }, { "docid": "422514", "title": "", "text": "States v. Gladue, 4 M.J. 1, 5 (C.M.A. 1977). The principles articulated by the Supreme Court in Aramco and Bowman can be harmonized to provide the following analytical framework for assessing whether the CPPA was intended to have extraterritorial effect: Unless the CPPA can be viewed as falling within the second category described in Bowman (“criminal statutes which are, as a class, ... enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated,” 260 U.S. at 98, 43 S.Ct. 39), the statute is subject to the presumption against extraterritoriality recognized in both Bowman and Aramco. We do not believe that the CPPA can be viewed as a “second category” offense under Bowman and thus exempt from application of the presumption against extraterritoriality. The ultimate objective behind the criminal proscription of activities pertaining to child pornography is to protect children from abuse. Free Speech Coalition, 535 U.S. at 245, 122 S.Ct. 1389. While few crimes are more serious or morally repugnant, child abuse does not involve “fraud” or “obstruction” against the United States Government. Rather, child abuse epitomizes that class of “[cjrimes against private individuals [including children]” that “affect the peace and good order of the community” described in the first category of Bowman. 260 U.S. at 98, 43 S.Ct. 39. We are aware of the body of law, primarily from the Ninth Circuit, that does not read the second category in Bowman as limited to crimes against the Government. See, e.g., United States v. Vasquez-Velasco, 15 F.3d 833, 839 n. 4 (9th Cir.1994); United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir.1990). Those cases all trace their roots, in one fashion or another, back to United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980), where the Fifth Circuit read Bowman as allowing a court, in the absence of any expression of congressional intent, to “infer” Congress’ intent to provide for extraterritorial application “from the nature of the offenses and Congress’ other legislative efforts to eliminate the type of crime involved.” The Baker court concluded that a federal statute prohibiting drug possession" }, { "docid": "5158407", "title": "", "text": "512, 37 C.M.R. 132 (1967); United States v. Winton, 15 U.S.C.M.A. 222, 35 C.M.R. 194 (1965). In the instant case, by operation of Article 3(a) alone, court-martial jurisdiction existed over the heroin possession offense, since the two requirements of that Article are met. The first requirement—that the offense be one which is punishable by confinement for 5 years or more—is fulfilled, since at the time of the appellant’s court-martial, the offense of wrongful possession of heroin was punishable under Article 134, UCMJ, by confinement at hard labor for 10 years. Paragraph 127c, Manual for Courts-Martial, United States, 1969 (Revised edition). But see United States v. Jackson, 3 M.J. 101 (C.M.A.1977); United States v. Courtney, 1 M.J. 438 (1976). The second requirement—that the offense be one which is not triable in trial courts within the United States or its Territories—is also fulfilled, since civilian courts cannot indict and try a person for simple possession of a controlled substance in a foreign country. Here it is undisputed that the appellant possessed heroin in the Kingdom of Thailand. We have fully considered the argument advanced by the appellant that Congress contemplated extraterritorial application of Title 21 U.S.C. 844(a), thus making indictable the possession of any controlled substance no matter where it was possessed in the universe by an American. Whether Congress in fact intended such extraterritorial application of a penal statute, which Congress clearly had the power to provide, see Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932), is thus the question: Section 844(a), supra, contains no provisions for extraterritorial application. Absent any evidence of a contrary intent, Congressional legislation is ordinarily presumed to apply only intraterritorially. United States v. Pizzarusso, 388 F.2d 8 (2nd Cir. 1968), cert. denied 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968); American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826 (1909). But application of a penal statute is not automatically limited to crimes committed within the territorial jurisdiction of the sovereign just because a penal provision lacks express language that it should" }, { "docid": "15999084", "title": "", "text": "is aimed at causing criminal acts within the United States, there is a sufficient basis for the United States to exercise jurisdiction,” id. at 249 (citations and quotations omitted), the Court held that a sufficient nexus existed because “[t]he facts found by the district court ... support the reasonable conclusion that [the defendant] intended to smuggle contraband into United States territory,” id. (It is evident that this holding was “roughly guided” by the objective territoriality principle.) An earlier Ninth Circuit opinion had held that “there was more than a sufficient nexus with the United States to allow the exercise of jurisdiction . [because] drug trafficking may be prevented under the protective principle of jurisdiction, without any showing of an actual effect on the United States.” United States v. Peterson, 812 F.2d 486, 493-94 (9th Cir.1987) (citing United States v. Pizzarusso, 388 F.2d 8, 10-11 (2d Cir.), cert. denied, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968)). We agree that if the extraterritorial application of a statute is justified by the protective principle, such application accords with due process. Therefore, given that the extraterritorial application of Sections 844, 924, 930, and 2155 to Odeh’s alleged extraterritorial conduct is justified by the protective principle, see Subsection I.B, supra, we conclude that the extraterritorial application of these statutes to Odeh’s conduct satisfies due process. 707 F.2d 663, 667-68 (2d. Cir.), cert. denied, 463 U.S. 1215, 103 S.Ct. 3555, 77 L.Ed.2d 1400 (1983). III. Constitutional Authority Odeh argues that the Counts based on 18 U.S.C. §§ 2332 (viz., Count 1) and 2332a (viz., Counts 4, 9, and 10) must be dismissed because these statutes are unconstitutional in that they exceed Congress’s authority to legislate under the Constitution. See Odeh’s Memo, at 27-29. As noted above, Subsection 2332(b) provides in relevant part that “[wjhoever outside the United States ... engages in a conspiracy to kill[ ] a national of the United States shall [be punished as further provided],” 18 U.S.C. § 2332(b); and Section 2332a(a) provides in relevant part that, “[a] person who ... uses, threatens, or attempts or conspires to use, a" }, { "docid": "5966626", "title": "", "text": "States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932); Old Dominion S.S. Co. v. Gilmore (The Hamilton), 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264 (1907); cf. Church v. Hubbart, 6 U.S. 187, 234, 2 L.Ed. 249, 264 (1804) (in drafting insurance contract, parties must have known that a nation’s “power to secure itself from injury [from illegal trade with its colonies] may certainly be exercised beyond the limits of its territory”). However, the scope of legislation is “presumptively territorial.” Sandborg v. McDonald, 248 U.S. 185, 195, 39 S.Ct. 84, 86, 63 L.Ed. 200, 204 (1918); New York Central R. R. Co. v. Chisholm, 268 U.S. 29, 45 S.Ct. 402, 69 L.Ed. 828 (1925); American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826 (1908); United States v. Pizzarusso, 388 F.2d 8 (2nd Cir.), cert. denied, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968). Consequently, we are concerned not with the power of Congress to legislate extra-territorially, but with its intent in enacting these statutes. Congress expressly provided that certain acts, such as murder, violate federal law when committed on board ships registered in the United States or owned by American citizens. 18 U.S.C.A. §§ 7 and 1111. But shipboard acts which would be crimes if committed within the territorial United States are not necessarily crimes when committed on the high seas. 18 U.S.C.A. § 7 only defines the special maritime and territorial jurisdiction, and 21 U.S.C.A. §§ 952(a) and 963 do not, by their terms, apply to acts therein. See Ficken, The 1935 Anti-Smuggling Act Applied to Hovering Narcotics Smugglers Beyond the Contiguous Zone: An Assessment Under International Law, 29 U.Miami L.Rev. 700, 701 (1975). Similarly, a penal statute may clearly indicate that it governs extra-territorial conduct. Thus, 21 U.S.C.A. § 959, which forbids the manufacture or distribution of drugs for the purposes of importation, states that it is “intended to reach acts . committed outside the territorial jurisdiction of the United States.” We are mindful that this language in section 959, adopted at the same time as" }, { "docid": "422517", "title": "", "text": "right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents.... In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense. 260 U.S. at 98, 43 S.Ct. 39. Accordingly, we adhere to the view we originally expressed in Gladue. The only category of offenses exempt under the language of Bowman from any presumption against extraterritoriality and for which a congressional intent for extraterritorial application can be “inferred from the nature of the offense” are those involving “obstructions” and “frauds” against the Government. See United States v. Gatlin, 216 F.3d 207, 211 n. 5 (2d Cir.2000). (2) Indicia of Congressional Intent Our conclusion that the CPPA is subject to a presumption against extraterritoriality under Aramco and Bowman does not end our inquiry into its applicability. We now “look to see whether ‘language in the [relevant statute] gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control.’ ” Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (quoting Foley Bros., 336 U.S. at 285, 69 S.Ct. 575). In searching for the clear expression of congressional intent required by Aramco, we are not limited to the text of the statute and can “consider ‘all available evidence’ about the meaning of the statute, including its text, structure, and legislative history.” Gatlin, 216 F.3d at 212 (quoting Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 177, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993)). (a) Text and Structure Our reading of the CPPA does not find any indication in the text and structure of the statute of a congressional purpose to extend its coverage. See Bradley Scott Shannon, The Jurisdictional Limits of Federal Criminal Child Pornography Law, 21 Hawaii L.Rev. 73, 106 (1999) (noting that the language of the CPPA “do[es] not clearly express an intent” that the" }, { "docid": "2023252", "title": "", "text": "do so will negative the purpose of Congress in this regard. . But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers, or agents. Some such offenses can only be committed within the territorial jurisdiction of the Government because of the local acts required to constitute them. Others are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense. . Act of June 15, 1917, ch. 30, title X, § 3, 40 Stat. 228. . Harvard Research in International Law, Jurisdiction with Respect to Crime, 29 Am.J.Int’l L.Supp. 437, 445 (1935). See United States v. Pizzarusso, 388 F.2d 8, 10 (2d Cir.), cert. denied, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968); 1 Working Papers of the Na tional Commission on Reform of Criminal Laws 69 (1970) ; George, Extraterritorial Application of Penal Legislation, 64 Mich.L.Rev. 609 (1966). . Prosecution for forgery of government documents is an aspect of the protective principle emphasized by Restatement (Second), Foreign Relations Law of the United States § 33: § 33. Protective Principle (1) A state has jurisdiction to prescribe a rule of attaching legal consequences to conduct outside its territory that threatens its security as a state or the operation of its governmental functions, provided the conduct is generally recognized as a crime under the law of states that have reasonably developed legal systems. (2) Conduct referred to in Subsection" }, { "docid": "7318331", "title": "", "text": "§ 2252A(a)(2)(A) to apply to acts committed outside the United States. The specific section of the statute in question is silent as to its extraterritorial application. The appellant, relying upon the decision in EEOC v. Arabian Am. Oil Co., 499 U.S. at 248, 111 S.Ct. 1227, notes that legislation is presumed to apply only within the territorial jurisdiction of the United States, unless Congress clearly manifests a contrary intent. The appellant argues that we should “infer from congressional silence that the legislature meant to regulate only activities within the nations borders.” We find the argument unpersuasive. In United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922), the Supreme Court set out an analytical framework for determining whether Congress intended federal criminal statutes to apply extraterritorially. The Court held that in construing the intent of Congress, courts must look to the nature and description of the crime. Crimes against private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement and fraud of all kinds, which affect the peace and good order of the community, must of course be committed within the territorial jurisdiction of the government where it may properly exercise it. If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard. Id. at 98, 43 S.Ct. 39. The Bowman Court recognized that a different rule of interpretation applies when the purpose of the criminal statute is to protect the country from harm that may be committed outside its territorial limits. But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents. Some such offenses can only be committed within the territorial jurisdiction of" }, { "docid": "18233529", "title": "", "text": "overseas. See Arabian Am. Oil Co., 499 U.S. at 250-54, 111 S.Ct. 1227. The Court held that Title VII's jurisdictional language, in contrast to the language of the Lanham Act, did not evince a Congressional intent to apply Title VII abroad sufficient to overcome the presumption against such extraterritorial application. See id. . The nationality basis for extraterritorial jurisdiction is also explicit in certain statutes. For example, both the treason statute, see 18 U.S.C. § 1381, and the selective service statute, see 50 U.S.C.App. § 453, apply to all American citizens regardless of whether they might be located abroad. . This effects test had its origins in United States v. Aluminum Co. of Am., 148 F.2d 416 (2d Cir.1945), although it took a considerable period of time to gain widespread acceptance. See generally 1 W. Fugate, Foreign Commerce and the Antitrust Laws § 2.10 (5th ed.1996). An older and now discredited view, reflected in American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29 S.Ct. 511, 53 L.Ed. 826 (1909), was that antitrust laws were wholly territorial in nature. Notably, Steele cited American Banana and rejected a territorial interpretation of that case; it read American Banana as applying only when there were no effects in the United States from the foreign antitrust violation. See Steele, 344 U.S. at 288, 73 S.Ct. 252. In 1982, Congress passed the FTAIA, which provided that the Sherman Act \"shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless ... such conduct has a direct, substantial, and reasonably foreseeable effect” on United States commerce. 15 U.S.C. § 6(a); see 1 Fugate, supra, § 2.14. The Supreme Court has never explained the relationship between the FTAIA and the older, judicially-created effects test; thus it remains unclear the extent to which the FTAIA is a codification of that test and the extent to which the FTAIA amends it. See Hartford Fire, 509 U.S. at 796, 113 S.Ct. 2891 n. 23; see also Nippon Paper, 109 F.3d at 4. . The traditional extraterritorial test for jurisdiction" }, { "docid": "15999018", "title": "", "text": "which criminalizes the making of false statements with respect to travel documents, was intended by Congress to apply extraterritorially to the conduct of foreign nationals. See United States v. Pizzarusso, 388 F.2d 8, 9 (2d Cir.), cert. denied, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968); see also United States v. Larsen, 952 F.2d 1099, 1101 (9th Cir.1991) (21 U.S.C. § 841(a)(1) — possession of narcotics with intent to distribute); United States v. Wright-Barker, 784 F.2d 161, 167 (3d Cir.1986) (same); United States v. Orozco-Prada, 732 F.2d 1076, 1088 (2d Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 154, 83 L.Ed.2d 92 (1984) (same); United States v. Benitez, 741 F.2d 1312, 1317 (11th Cir.1984), cert. denied, 471 U.S. 1137, 105 S.Ct. 2679, 86 L.Ed.2d 698 (1985) (18 U.S.C. § 2112 — theft of personal property of the United States); United States v. Zehe, 601 F.Supp. 196, 200 (D.Mass.1985) (18 U.S.C. §§ 792-799 — espionage). Indeed, the Eleventh Circuit has held that one of the statutes targeted by Odeh, viz., 18 U.S.C. § 1114 — which penalizes murder and attempted murder of officers and employees of the United States — applies to conduct by foreign nationals on foreign soil. See Benitez, 741 F.2d at 1317. Correlatively, no court, to date, has refused to apply the Bcnvman rule on the ground that the defendant was a foreign national. Third, the irrelevance of the defendant’s nationality to the Bowman rule is reinforced by a consideration of the relationship between this rule and the principles of extraterritorial jurisdiction recognized by international law. Under international law, the primary basis of jurisdiction is the “subjective territorial principle,” under which “a state has jurisdiction to prescribe law with respect to ... conduct that, wholly or in substantial part, takes place within its territory.” Restatement (Third) of the Foreign Relations Law of the United States § 402(l)(a) (1987); see also Christopher L. Blakesley, Extraterritorial Jurisdiction, in M. Cherif Bassiouni (ed.), International Criminal Law 47-50 (2d ed.1999). International law recognizes five other principles of jurisdiction by which a state may reach conduct outside its territory: (1) the" }, { "docid": "2023244", "title": "", "text": "seas and in a foreign country, states the rule for determining whether a criminal law should be given extraterritorial effect. There the Court distinguished two classes of penal legislation: statutes punishing crimes against the peace and good order of the community apply only to acts committed within the territorial jurisdiction of the United States unless Congress directs otherwise; in contrast, laws punishing fraud against the government include by implication acts committed in foreign countries. Extraterritoriality for § 499 should be inferred, therefore, because it is concerned with the counterfeiting and misuse of military passes, a species of fraud against the government. Moreover, the origin of § 499 supports this inference. The statute was originally enacted in 1917 when the United States was preparing to send a large expeditionary force to Europe. It is reasonable to assume that Congress was aware that the integrity of military passes would be threatened abroad as well as at home, and it is proper to infer that Congress intended to protect the government against forgery of these papers wherever the armed forces of the United States were stationed. The basis found in international law for extraterritorial application of § 499 is the principle of protective jurisdiction. The protective principle determines jurisdiction “by reference to the national interest injured by the offense.” It provides an appropriate ju- rlsdietional base for prosecuting a person who, acting beyond the territorial boundaries of the United States, falsifies its official documents. Because the national interest is injured by the falsification of official documents no matter where the counterfeit is prepared, we conclude that Congress intended § 499 to apply to persons who commit its proscribed acts abroad. We also conclude that the indictment charged offenses against the United States. Each count is framed in the language of the statute and adequately alleges a violation of its provisions. This is ordinarily sufficient unless the statute omits an element of the offense or includes it by implication. United States v. Weems, 398 F.2d 274, 275 (4th Cir. 1968), cert. denied, 393 U.S. 1099, 89 S.Ct. 894, 21 L.Ed.2d 790 (1969). Here the" } ]

[ { "docid": "23358759", "title": "", "text": "give him a claim for damages when -the Government, in the interest of navigation, caused the water to run in another channel. United States v. Chandler, 229 U. S. 53. Another holds that where the Government had constructed a dam, which raised the level of the river and backed the water beyond the old harbor line, the person who purchased after the dam was built could not complain because he was prevented from building a wharf inside the new harbor lines which had been changed to conform to the new line of deep water. But the right of the person who owned the land before the dam was built was expressly left open for future decision. Philadelphia Co. v. Stimson, 223 U. S. 627. In some of the cases it appeared that bridges- had been built subject to the power expressly reserved to order, them removed. Hannibal Bridge Co. v. United States, 221 U. S. 194. Several of the cases hold that those who build bridges or tunnels across the navigable channel of a stream can be required at their own expense to raise or lower the structures whenever they become obstructions to navigation. Union Bridge Co. v. United States, 204 U. S. 364; West Chicago R. R. v. Chicago, 201 U. S. 506. But no case has been cited which holds that a wharf,' in shallow water, outside an established harbor line, can be declared an obstruction to navigation, the property taken and the owner ousted of possession without compensation. On the contrary, Yates v. Milwaukee, 10 Wall. 497, distinctly holds that this cannot be done. There the City, by the act of 1854, had authority ‘by ordinance to establish dock and wharf lines and to prevent obstructions in the river and to cause it to be dredged.’ Thereafter Yates built a wharf, across the harbor line, through the shallow water out to the navigable channel of the Milwaukee River. Subsequently a new line was established (505) and in 1864, the city declared, as the Secretary did here, that the wharf (inside the harbor line), was an obstruction. This" } ]

[ { "docid": "3201750", "title": "", "text": "Ghandler-Dun-bar were followed in Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U.S. 82, 33 S.Ct. 679, 57 L.Ed. 1083 (1913), which held that deepening, in the interest of navigation, a channel across a navigable bay and thereby destroying oysters cultivated by a lessee of the owner of the fee of a large portion of the bed of the bay was not a compensable taking. The Court stated: “If the public right of navigation is the dominant right, and if, as must be the case, the title of the owner of the bed of navigable waters holds subject absolutely to the public right of navigation this dominant right must include the right to use the bed of the water for every purpose which is in aid of navigation. This right to control, improve, and regulate the navigation of such waters is one of the greatest of the powers delegated to the United States by the power to regulate commerce. * * * “By necessary implication from the dominant right of navigation, title to such submerged lands is acquired and held subject to the power of Congress to deepend the water over such lands, or to use them for any structure which the interest of navigation, in its judgment, may require.” 229 U.S. at 87-88, 33 S.Ct. at 680. Chandler-Dunbar and Lewis Blue Point Oyster Cultivation Co. v. Briggs were relied on to support the following statement in United States v. Chicago, M., St.P. & P.R.R., 312 U.S. 592, 599, 61 S.Ct. 772, 776, 85 L.Ed. 1064 (1941), which held that the United States did not have to compensate a riparian owner for injury to structures located between high and low water marks that was caused by the raising of the water level in a navigable stream for the improvement of navigation: “It is not true, as respondents maintain, that only structures in the bed of a navigable stream which obstruct or adversely affect navigation may be injured or destroyed without compensation by a federal improvement of navigable capacity. On the contrary, any structure is placed in the bed of" }, { "docid": "4241298", "title": "", "text": "and the flow of water therein and may remove any obstruction to navigation without being liable in damages therefor, United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064; but that is not what the government is doing here. It is taking, not the bed of the stream, but lands adjacent to the stream and is taking them, not for purposes of navigation, but for the primary purposes of flood control and the development of water power. Cf. United States v. Gerlach Live Stock Co., 339 U.S. 725, 739-742, 70 S.Ct. 955, 94 L.Ed. 1231. It is well settled that the “right of the United States in the navigable waters within the several states is limited to the control thereof for purposes of navigation”, Port of Seattle v. Oregon & W. R. Co., 255 U.S. 56, 63, 41 S.Ct. 237, 239, 65 L.Ed. 500; and that, as to fast land, “The absolute ownership and right of private property in such land is not varied by the fact that it borders on a navigable stream”. Pumpelly v. Green Bay Co., 13 Wall. 166, 182, 20 L.Ed. 557. Consequently, even where improvement of navigation is the purposé, any taking outside the bed of the stream of adjacent “fast” lands must be compensated for as in any other taking of prívate property. United States v. Chandler-Dunbar Co., 229 U.S. 53, 60, 65, 33 S.Ct. 667, 57 L.Ed. 1063. This would seem to be elementary since the limitations of the Fifth Amendment apply to the government when exercising the commerce power as well as other powers. Certainly, it is absurd to contend that, because the government is given control of navigation in the river and may exercise the servitude incident to such control, it may build a dam for water power purposes and take lands of private owners to form a basin for the reservoir thus created without paying the reasonable value of the land so taken. As said by Mr. Justice Brewer in Monongahela Navigation Co. v. United States, 148" }, { "docid": "4241301", "title": "", "text": "stream without liability therefor, and that the underflowing of the riparian lands involved constituted a taking for which compensation must be paid. In distinguishing the case of United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 101, and other cases holding that there was no liability for exercise of power relating solely to the bed of the stream, the court, speaking through Justice Burton, said 339 U.S. at page 808, 70 S.Ct. at page 890: “It is not the broad constitutional power to regulate commerce, but rather the servitude derived from that power and narrower in scope, that frees the Government from liability in these cases. When the Government exercises this servitude, it it exercising its paramount power in the interest of navigation, rather than taking the private property of anyone. The owner’s use of property riparian to a navigable stream long has been limited by the right of the public to use the stream in the interest of navigation. See Gould on Waters, c. IV, §§ 86-90 (1883); I Farnham, Waters and Water Rights, c. Ill, § 29 (1904). This has applied to the stream and to the land submerged by the stream. There thus has been ample notice over the years that such property is. subject to a dominant public interest. This right of the public has crystallized in terms of a servitude over the bed of the stream. The relevance of the high-water level of the navigable stream is that it marks its. bed. Accordingly, it is consistent with the history and reason of the rule to deny compensation where the claimant's private title is burdened with this servitude but to award compensation where his title is not so burdened.\" (Italics supplied). The court appended the following note to the last sentence of the above quotation: “This is clearly illustrated in United States v. Chicago, M., St. P. & P. R. Co., supra, [312 U.S. 592, 61 S.Ct. 772, 85 L.Ed. 1064]. The United States raised the level of the navigable river above its ordinary high-water mark. This Court then declined" }, { "docid": "7067774", "title": "", "text": "property. But the power is a dominant one which can be asserted to the exclusion of any competing or conflicting one. The power is a privilege which we have called ‘a dominant servitude’ * * Later the Court refers to the servitude as an “easement of navigation.” 350 U.S. at 228, 76 S.Ct. 259. Explaining the effect of an exercise of the power, the Court in United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 62, 33 S.Ct. 667, 57 L.Ed. 1063 (1913), states that governmental use of the river bottom for purposes of navigation is not a taking of private property for public use, since “the owner’s title was in its very nature subject to that use in the interest of public navigation.” Thus the Government has “not ‘taken’ any property which was not primarily subject to the very use to which it had been put * * 229 U.S. at 64, 33 S.Ct. at 672. In United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 596, 61 S.Ct. 772, 775, 85 L.Ed. 1064 (1941), the Court states: “The dominant power of the federal Government, as has been repeatedly held, extends to the entire bed of a stream, which includes the lands below ordinary highwater mark. The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation. The damage sustained results not from a taking of the riparian owner’s property in the stream bed, but from the lawful exercise of a power to which that property has always been subject.” It is thus apparent that the navigational servitude, by its nature, does not destroy or exclude all property rights in the beds and banks of navigable streams. Such rights continue to exist but are held subject to the governmental power in the nature of an easement. The question then, is whether the Federal Power Act, 16 U.S.C. § 791a et seq. (1964), bestows this governmental power on a licensee. We first observe that the position of" }, { "docid": "16687038", "title": "", "text": "tide to the mean high-water mark in its unobstructed, natural state). . Examples of elements of damage which are not compensated include the land's value as a hydroelectric site, United States v. Twin City Power Co., 350 U.S. 222, 226, 76 S.Ct. 259, 261, 100 L.Ed. 240 (1956), the land's value as a port site, Rands, 389 U.S. at 122, 88 S.Ct. at 266, the loss of gravity flow resulting from elevation differential, Borough of Ford City v. United States, 345 F.2d 645 (3d Cir.1965); and the loss of access to navigable water due to such government activities as alteration of the stream’s channel, Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996 (1897), construction in the river, Scranton v. Wheeler, 179 U.S. 141, 21 S.Ct. 48, 45 L.Ed. 126 (1900), blocking the flow of the stream, Transportation Co. v. Chicago, 99 U.S. (9 Otto) 635, 25 L.Ed. 336 (1878), or even ending the stream's navigability, United States v. Commodore Park, Inc., 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017 (1945). . The government also cites Jackson v. United States, 230 U.S. 1, 33 S.Ct. 1011, 57 L.Ed. 1363 (1913), where the claimant unsuccessfully sought damages for flooding resulting from the government’s construction of new levees along the Mississippi River which placed the claimant’s plantation between the new levees and the private levees which had previously protected the land from the river's ordinary high water. However, in the absence of the protection provided by the private levees, the claimant’s land was below the river’s ordinary high-water mark. See id. at 20, 33 S.Ct. at 1018; see also Hughes v. United States, 230 U.S. 24, 33 S.Ct. 1019, 57 L.Ed. 1374 (1913). The plantation and private levees in Jackson were nothing more than property located or structures constructed in the bed of a navigable river below the ordinary high-water mark, for which no compensation is owed by the government to riparian owners for damages resulting from the improvement of navigation. Cf. Chicago, Milwaukee, 312 U.S. at 596-97, 61 S.Ct. at 775. . Ross involved a suit" }, { "docid": "5801505", "title": "", "text": "of seizure. They exist as characteristics of all navigable waters of the United States. United States v. Rands, 389 U.S. 121,122-23, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967); United States v. Chicago, M., St. P. & P. R.R., 312 U.S. 592, 595-97, 61 S.Ct. 772, 85 L.Ed. 1064 (1941). Land underlying navigable water differs from fast land in its servient characteristics which result from the dominant property characteristics of the navigable water by which it is submerged. If fast land is to be subjected to public use for transportation, it must voluntarily be dedicated to the public by the owner, or must be acquired by the public with due compensation to the owner. But land underlying navigable water underlies an existing public roadway. By virtue of the water’s presence it is burdened with a public servitude. If the water body is interstate or forms part of an interstate waterway the navigational servitude runs to the federal government. Hawaii property law at most relates to any servitude the state may claim. If the state chooses to relieve land underlying fishponds such as Kuapa Pond from any navigational servitude otherwise owing to the state (even after the pond’s transformation into a marina), that is the state’s business. The effect of Hawaii law on state rights, however, is not before us. No matter what those rights may be they can have no effect on the federal interest in interstate commerce nor the rights and obligations of the federal government in this respect under the Constitution. When the waters of the pond became navigable waters of the United States, the federal navigational servitude attached. On the appeal of Kaiser Aetna and the Bishop Estate, judgment of the district court is affirmed. On the appeal of the United States, judgment is reversed and the matter is remanded for entry of judgment in favor of the United States. . Section 403 in general makes it unlawful, in absence of approval of the Army Corps of Engineers, to create an obstruction to the navigational capacity of any of the waters of the United States, build structures in" }, { "docid": "16687001", "title": "", "text": "a power to which the interests of riparian owners have always been subject. United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 596-597 [61 S.Ct. 772, 775, 85 L.Ed. 1064] (1941); (other citation omitted). United States v. Rands, 389 U.S. 121, 123, 88 S.Ct. 265, 267, 19 L.Ed.2d 329 (1967); see also United States v. Cherokee Nation, 480 U.S. 700, 107 S.Ct. 1487, 1490, 94 L.Ed.2d 704 (1987). Thus, the government’s navigational servitude is a dominant servitude which reflects the superior interest of the United States in navigation and the nation’s navigable waters. United States v. Twin City Power Co., 350 U.S. 222, 224, 76 S.Ct. 259, 261, 100 L.Ed. 240 (1956). In United States v. Chicago, Milwaukee, St. Paul & Pacific R.R., 312 U.S. 592, 596-597, 61 S.Ct. 772, 775, 85 L.Ed. 1064 (1941) (hereinafter Chicago, Milwaukee), the Supreme Court stressed that “the determination of the necessity for a given improvement of navigable capacity, and the character and extent of it, is for Congress alone.... [T]he rights of the title holder are subordinate to the dominant power of the federal Government in respect of navigation.” (Footnotes omitted.) Thus, upon the determination of Congress to improve navigation, the navigational servitude defines the appropriate boundaries within which the United States can assert its power to supersede private ownership interests without creating an obligation to pay just compensation under the Eminent Domain Clause of the Fifth Amendment. D. The Scope of the Navigational Servitude The holdings of the Supreme Court and the other federal courts make clear that no compensation is owed by the government for injury or destruction of a riparian owner’s property which is located in the bed of a navigable stream. For example, in the Chicago, Milwaukee case, the Supreme Court rejected the respondent railroad’s claims seeking compensation for damage to its railway embankments located between the high- and low-water marks of the Mississippi River which was caused by raising the river’s water level to improve navigation. 312 U.S. at 598, 61 S.Ct. at 776; see also Greenleaf Johnson Lumber Co. v. Garrison, 237 U.S." }, { "docid": "23093809", "title": "", "text": "the demand is a legal or equitable claim or a gratuity, and the amount, if any, legally or equitably due from the United States to the claimant.” The Supreme Court in reversing the judgment of this court, 324 U.S. 499, page 509, 65 S.Ct. 761, page 767, 89 L.Ed. 1101, in its conclusion used the following language : “It is conceded that the riparian owner has no right as against improvements of navigation to maintenance of a level below high-water mark, but it is claimed that there is a riparian right to use the stream for run-off of water at this level. High-water mark bounds the bed of the river. Lands above it are fast lands and to flood them is a taking for which compensation must be paid. But the award here does not purport to compensate a flooding of fast lands or impairment of their value. Lands below that level are subject always to a dominant servitude in the interests of navigation and its exercise calls for no compensation. United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064; Willink v. United States, 240 U.S. 572, 36 S.Ct. 422, 60 L.Ed. 808. The damage here is that the water claimant continues to bring onto its lands through an artificial canal from the Willow River has to leave its lands at an elevation of 675 instead of an elevation of 672 feet. No case is cited and we find none which holds a riparian owner on navigable -waters to have such a legal right. The Cress case which the Court of Claims relied upon does not so hold and does not govern here. “Rights, property or otherwise, which are .absolute against all the world are certainly rare, and water rights are not among them. Whatever rights may be as between equals such as riparian owners, they are not the measure of riparian rights on a navigable stream relative to the function of the Government in improving navigation. Where these interests conflict they are not to be" }, { "docid": "20256328", "title": "", "text": "(1926)) (citations omitted). If a public project is wholly unrelated to navigation, the government is not shielded from compensation liability by the federal navigational servitude. The determination of whether a particular project will improve navigation, however, is a matter entirely within the broad discretion of the legislative branch. The Supreme Court has noted that [i]t is not for courts ... to substitute their judgments for congressional decisions on what is or is not necessary for the improvement or protection of navigation. The role of the judiciary in reviewing the legislative judgment is a narrow one in any case. The decision of Congress that this project will serve the interests of navigation involves engineering and policy considerations for Congress and Congress alone to evaluate. Courts should respect that decision until and unless it is shown “to involve an impossibility....” If the interests of navigation are served, it is constitutionally irrelevant that other purposes may also be advanced. Twin City Power, 350 U.S. at 224, 76 S.Ct. 259 (citations omitted); see also United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 596, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064 (1941) (Chicago Railroad) (noting that “the determination of the necessity for a given improvement of navigable capacity, and the character and extent of it, is for Congress alone”). Thus, the Supreme Court has made it clear that courts should not second-guess the legislature’s determination that a particular governmental project will serve the interests of navigation. The spatial boundaries of the federal navigational servitude are marked by the ordinary high water lines along the banks of a navigable waterway, and the effect of the servitude is not limited to those portions of a river or stream that are actually navigable in fact. See Allen Gun Club v. United States, 180 Ct.Cl. 423, 429 (1967) (holding that “[t]he navigation easement is not limited to the thread of the stream where vessels pass, but extends from ordinary high water on one side to ordinary high water on the other”). The ordinary high water line marks both the vertical and the" }, { "docid": "22391711", "title": "", "text": "229 U. S., at 65-66; for loss in “head” resulting from raising the stream, United States v. Willow River Co., 324 U. S., at 507-511; for damage to structures erected between low- and high-water marks, United States v. Chicago, M., St. P. & P. R. Co., 312 U. S. 592, 595-597 (1941); for loss of access to navigable water caused by necessary improvements, United States v. Commodore Park, Inc., 324 U. S. 386, 390-391 (1945); Scranton v. Wheeler, 179 U. S., at 163; or for loss of value to adjoining land based on potential use in navigational commerce, United States v. Rands, 389 U. S. 121, 124-125 (1967). The Court also has held that no compensation is required when “obstructions,” such as bridges or wharves, are removed or altered to improve navigation, despite their obvious commercial value to those who erected them, and despite the Federal Government’s original willingness to have them built. See, e. g., Greenleaf Lumber Co. v. Garrison, 237 U. S. 251, 256, 258-264 (1915); Union Bridge Co. v. United States, 204 U. S. 364, 400 (1907). These cases establish a key principle that points the way for decision in the present context. In most of them, the non-compensable loss was related, either directly or indirectly, to the riparian owner’s “access to, and use of, navigable waters.” United States v. Rands, 389 U. S., at 124-125. However that access or use may have been turned to account for personal gain, and no matter how much the riparian owner had invested to enhance the value, the Court held that these rights were shared with the public at large. Actions taken to improve their value for the many caused no reimbursable damage to the few who, by the accident of owning contiguous “fast land\" previously enjoyed the blessings of the common right in greater measure. See, e. g., United States v. Commodore Park, Inc., 324 U. S., at 390-391. The Court recognized that encroachment on rights inhering separately in the adjoining “fast land,” United States v. Virginia Electric Co., 365 U. S. 624, 628 (1961), or resulting from access" }, { "docid": "3201753", "title": "", "text": "lawful exercise of a power to which that property has always been subject.” 312 U.S. at 596-597, 61 S.Ct. at 775. (citations omitted). In United States v. Commodore Park, 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017 (1945), which held that the United States was not required to compensate an owner of property contiguous to a creek whose land was decreased in value because the United States destroyed the creek’s navigability by depositing materials dredged from a bay in the creek, the Court stated: “United States v. Chicago, M. St. P. & P. R. Co., 312 U.S. 592, 596-598, [61 S.Ct. 772, 775, 776, 85 L.Ed. 1064] set at rest any remaining doubt concerning the dominant power of the government to control and regulate navigable waters in the interest of commerce, without payment of compensation to one who under state law may hold ‘technical’ legal title (as between himself and others than the government) to a part of the navigable stream’s bed.” 324 U.S. at 390, 65 S.Ct. at 805. “There is power to block navigation at one place to foster it at another. Whether this blocking be done by altering the stream’s course, by lighthouses, jetties, piers, or a dam made of dredged material, the government’s power is the same and in the instant case is derived from the same source— its authority to regulate commerce.” 324 U.S. at 393, 65 S.Ct. at 806. In United States v. Virginia Electric and Power Co., 365 U.S. 624, 628, 81 S.Ct. 784, 788, 5 L.Ed.2d 838 (1961) the Court stated: “Since the privilege or servitude only encompasses the exercise of this federal power with respect to the stream itself and the lands beneath and within its high-water mark, the Government must compensate for any taking of fast lands which results from the exercise of the power.” In United States v. Rands, 389 U.S. 121, 123, 88 S.Ct. 265, 267, 19 L.Ed. 2d 329 (1967), which held that the compensation the United States was constitutionally required to pay when it condemns riparian land does not include the land’s value as a" }, { "docid": "11964842", "title": "", "text": "to hear and determine the same.” The federal government derives its authority over the navigable rivers of the United States from the commerce clause of the constitution, U.S.C.A.Const. Art. 1, § 8, cl. 3; and the government’s right to improve such rivers in aid of navigation is paramount to the rights of riparian owners in the beds of all navigable streams. Pike Rapids Power Co. v. Minneapolis, St. P. & S. S. M. R. Co., 8 Cir., 99 F.2d 902, 909. But the government may not for the purpose of aiding navigation permanently convert to the public use, by means of dams and other structures, the land of the riparian owner above the mean high-water line without just compensation. Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L.Ed. 557; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; Willink v. United States, 240 U.S. 572, 580, 36 S.Ct. 422, 60 L.Ed. 808; Union Bridge Co. v. United States, 204 U.S. 364, 390, 27 S.Ct. 367, 51 L.Ed. 523; Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331. If the authorized construction of the improvement in the river has resulted in a “taking” of plaintiffs’ property for which there must be “just compensation” under the Fifth Amendment, the government has impliedly promised to pay that compensation and plaintiffs are entitled to recover in this action. Yearsley v. W. A. Ross Construction Co., 309 U.S. 18, 21, 60 S.Ct. 413, 84 L.Ed. 554. On the other hand, if the government’s project has resulted in but a temporary invasion of the land or the injury thereto is but the consequential result of, or merely incidental to, the improvement of the channel of the fiver in aid of navigation, no implied obligation on the part of the government can arise. Jackson v. United States, 230 U.S. 1, 33 S.Ct. 1011, 57 L.Ed. 1363; Bedford v. United States, 192 U.S. 217, 24 S.Ct. 238. 48 L.Ed. 414; Gibson v. United States, 166 U.S. 269," }, { "docid": "3201751", "title": "", "text": "submerged lands is acquired and held subject to the power of Congress to deepend the water over such lands, or to use them for any structure which the interest of navigation, in its judgment, may require.” 229 U.S. at 87-88, 33 S.Ct. at 680. Chandler-Dunbar and Lewis Blue Point Oyster Cultivation Co. v. Briggs were relied on to support the following statement in United States v. Chicago, M., St.P. & P.R.R., 312 U.S. 592, 599, 61 S.Ct. 772, 776, 85 L.Ed. 1064 (1941), which held that the United States did not have to compensate a riparian owner for injury to structures located between high and low water marks that was caused by the raising of the water level in a navigable stream for the improvement of navigation: “It is not true, as respondents maintain, that only structures in the bed of a navigable stream which obstruct or adversely affect navigation may be injured or destroyed without compensation by a federal improvement of navigable capacity. On the contrary, any structure is placed in the bed of a stream at the risk that it may be so injured or destroyed; and the right to compensation does not depend on the absence of physical interference with navigation.” The Court also stated: “Whether, under local law, the title to the bed of the stream is retained by the State or the title of the riparian owner extends to the thread of the stream, or, as in this case, to low water mark, the rights of the title holder are subordinate to the dominant power on the federal Government in respect of navigation. * * * * * “The dominant power of the federal Government, as has been repeatedly held, extends to the entire bed of a stream, which includes the lands below ordinary high water mark. The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation. The damage sustained results not from a taking of the riparian owner’s property in the stream bed, but from the" }, { "docid": "16687002", "title": "", "text": "holder are subordinate to the dominant power of the federal Government in respect of navigation.” (Footnotes omitted.) Thus, upon the determination of Congress to improve navigation, the navigational servitude defines the appropriate boundaries within which the United States can assert its power to supersede private ownership interests without creating an obligation to pay just compensation under the Eminent Domain Clause of the Fifth Amendment. D. The Scope of the Navigational Servitude The holdings of the Supreme Court and the other federal courts make clear that no compensation is owed by the government for injury or destruction of a riparian owner’s property which is located in the bed of a navigable stream. For example, in the Chicago, Milwaukee case, the Supreme Court rejected the respondent railroad’s claims seeking compensation for damage to its railway embankments located between the high- and low-water marks of the Mississippi River which was caused by raising the river’s water level to improve navigation. 312 U.S. at 598, 61 S.Ct. at 776; see also Greenleaf Johnson Lumber Co. v. Garrison, 237 U.S. 251, 35 S.Ct. 551, 59 L.Ed. 939 (1915) (no compensation for removal of private wharf located in navigable waters); Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U.S. 82, 33 S.Ct. 679, 57 L.Ed. 1083 (1913) (no compensation for loss of use of a navigable channel bed for oyster cultivation); West Chicago Street R.R. v. Illinois, 201 U.S. 506, 26 S.Ct. 518, 50 L.Ed. 845 (1906) (no compensation for removal of tunnel passing under navigable stream); Chicago, Burlington & Quincy Ry. v. Illinois, 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596 (1906) (no compensation for removal and replacement of private bridge across navigable river). Land or property within the bed are always subject to (or burdened with) the potential exercise of the navigational servitude; thus, no compensation is owed when the government takes such land or property as the result of aiding the navigability of the stream. See Tri-State Materials Corp. v. United States, 550 F.2d 1, 6, 213 Ct.Cl. 1 (1977); see also Goose Creek Hunting Club, Inc. v. United States, 518" }, { "docid": "22131190", "title": "", "text": "the privilege to appropriate without compensation which attaches to the exercise of the “power of the government to control and regulate navigable waters in the interest of commerce.” United States v. Commodore Park, 324 U. S. 386, 390. The power “is a dominant one which can be asserted to the exclusion of any competing or conflicting one.” United States v. Twin City Power Co., 350 U. S. 222, 224-225; United States v. Willow River Co., 324 U. S. 499, 510. A classic description of the scope of the power and of the privilege attending its exercise is to be found in the Court’s opinion in United States v. Chicago, M., St. P. & P. R. Co.: “The dominant power of the federal Government, as has been repeatedly held, extends to the entire bed of a stream, which includes the lands below ordinary high-water mark. The exercise of the power within these, limits is not an invasion of any private property right in such lands for which the United States must make compensation. [Citing cases.] The damage sustained results not from a taking of the riparian owner’s property in the stream bed, but from the lawful exercise of a power to which that property has always been subject.” 312 U. S. 592, 596-597. Since the privilege or servitude only encompasses the exercise of this federal power with respect to the stream itself and the lands beneath and within its high-water mark, the Government must compensate for any taking of fast lands which results from the exercise of the power. This was the rationale of United States v. Kansas City Ins. Co., 339 U. S. 799, where the Court held that when a navigable stream was raised by the Government to its ordinary high-water mark and maintained continuously at that level in the interest of navigation, the Government was liable “for the effects of that change [in the water level] upon private property beyond the bed of the stream.” 339 U. S., at 800-801. See also United States v. Willow River Co., 324 U. S. 499, 509. But though the Government’s navigational" }, { "docid": "3201754", "title": "", "text": "block navigation at one place to foster it at another. Whether this blocking be done by altering the stream’s course, by lighthouses, jetties, piers, or a dam made of dredged material, the government’s power is the same and in the instant case is derived from the same source— its authority to regulate commerce.” 324 U.S. at 393, 65 S.Ct. at 806. In United States v. Virginia Electric and Power Co., 365 U.S. 624, 628, 81 S.Ct. 784, 788, 5 L.Ed.2d 838 (1961) the Court stated: “Since the privilege or servitude only encompasses the exercise of this federal power with respect to the stream itself and the lands beneath and within its high-water mark, the Government must compensate for any taking of fast lands which results from the exercise of the power.” In United States v. Rands, 389 U.S. 121, 123, 88 S.Ct. 265, 267, 19 L.Ed. 2d 329 (1967), which held that the compensation the United States was constitutionally required to pay when it condemns riparian land does not include the land’s value as a port site, the Court said: “This power to regulate navigation confers upon the United States a ‘dominant servitude’, FPC v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 [74 S.Ct. 487, 493, 98 L.Ed. 686] (1954), which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject. United States v. Chicago, M.St. P. & P. R. Co., 312 U.S. 592, 596-597 [61 S.Ct. 772, 775, 85 L.Ed. 1064] (1941) ; Gibson v. United States, 166 U.S. 269, 275-276 [17 S.Ct. 578, 580, 41 L.Ed. 996] (1897).”" }, { "docid": "3201752", "title": "", "text": "a stream at the risk that it may be so injured or destroyed; and the right to compensation does not depend on the absence of physical interference with navigation.” The Court also stated: “Whether, under local law, the title to the bed of the stream is retained by the State or the title of the riparian owner extends to the thread of the stream, or, as in this case, to low water mark, the rights of the title holder are subordinate to the dominant power on the federal Government in respect of navigation. * * * * * “The dominant power of the federal Government, as has been repeatedly held, extends to the entire bed of a stream, which includes the lands below ordinary high water mark. The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation. The damage sustained results not from a taking of the riparian owner’s property in the stream bed, but from the lawful exercise of a power to which that property has always been subject.” 312 U.S. at 596-597, 61 S.Ct. at 775. (citations omitted). In United States v. Commodore Park, 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017 (1945), which held that the United States was not required to compensate an owner of property contiguous to a creek whose land was decreased in value because the United States destroyed the creek’s navigability by depositing materials dredged from a bay in the creek, the Court stated: “United States v. Chicago, M. St. P. & P. R. Co., 312 U.S. 592, 596-598, [61 S.Ct. 772, 775, 776, 85 L.Ed. 1064] set at rest any remaining doubt concerning the dominant power of the government to control and regulate navigable waters in the interest of commerce, without payment of compensation to one who under state law may hold ‘technical’ legal title (as between himself and others than the government) to a part of the navigable stream’s bed.” 324 U.S. at 390, 65 S.Ct. at 805. “There is power to" }, { "docid": "22391710", "title": "", "text": "I think this question requires a balancing of private and public interests. Ordinarily, “[w]hen the Government exercises [the navigational] servitude, it is exercising its paramount power in the interest of navigation, rather than taking the private property of anyone.” United States v. Kansas City Ins. Co., 339 U. S. 799, 808 (1950). See also United States v. Willow River Co., 324 U. S. 499, 509-510 (1945); Lewis Blue Point Oyster Co. v. Briggs, 229 U. S. 82, 87-88 (1913); Gibson v. United States, 166 U. S. 269, 276 (1897). The Court's prior cases usually have involved riparian owners along navigable rivers who claim losses resulting from the raising or lowering of water levels in the navigable stream, or from the construction of artificial aids to navigation, such as dams or locks. In these cases the Court has held that no compensation is required for loss in water power due to impairment of the navigable water’s flow, e. g., United States v. Twin City Power Co., 350 U. S., at 226-227; United States v. Chandler-Dunbar Co., 229 U. S., at 65-66; for loss in “head” resulting from raising the stream, United States v. Willow River Co., 324 U. S., at 507-511; for damage to structures erected between low- and high-water marks, United States v. Chicago, M., St. P. & P. R. Co., 312 U. S. 592, 595-597 (1941); for loss of access to navigable water caused by necessary improvements, United States v. Commodore Park, Inc., 324 U. S. 386, 390-391 (1945); Scranton v. Wheeler, 179 U. S., at 163; or for loss of value to adjoining land based on potential use in navigational commerce, United States v. Rands, 389 U. S. 121, 124-125 (1967). The Court also has held that no compensation is required when “obstructions,” such as bridges or wharves, are removed or altered to improve navigation, despite their obvious commercial value to those who erected them, and despite the Federal Government’s original willingness to have them built. See, e. g., Greenleaf Lumber Co. v. Garrison, 237 U. S. 251, 256, 258-264 (1915); Union Bridge Co. v. United States, 204" }, { "docid": "16687000", "title": "", "text": "on this court. C. The Navigational Servitude The nation’s navigable waters have always been considered “public property” and since the early days of the nation have been under the exclusive control of the federal government under the Commerce Clause. Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724-25, 18 L.Ed. 96 (1866); Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 6 L.Ed 23 (1824). The general scope of the government’s navigational servitude has been explained by the Supreme Court as follows: This power to regulate navigation confers upon the United States a “dominant servitude,” FPC v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 [74 S.Ct. 487, 493, 98 L.Ed. 666] (1954), which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject. United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 596-597 [61 S.Ct. 772, 775, 85 L.Ed. 1064] (1941); (other citation omitted). United States v. Rands, 389 U.S. 121, 123, 88 S.Ct. 265, 267, 19 L.Ed.2d 329 (1967); see also United States v. Cherokee Nation, 480 U.S. 700, 107 S.Ct. 1487, 1490, 94 L.Ed.2d 704 (1987). Thus, the government’s navigational servitude is a dominant servitude which reflects the superior interest of the United States in navigation and the nation’s navigable waters. United States v. Twin City Power Co., 350 U.S. 222, 224, 76 S.Ct. 259, 261, 100 L.Ed. 240 (1956). In United States v. Chicago, Milwaukee, St. Paul & Pacific R.R., 312 U.S. 592, 596-597, 61 S.Ct. 772, 775, 85 L.Ed. 1064 (1941) (hereinafter Chicago, Milwaukee), the Supreme Court stressed that “the determination of the necessity for a given improvement of navigable capacity, and the character and extent of it, is for Congress alone.... [T]he rights of the title" }, { "docid": "20256329", "title": "", "text": "St. P. & P.R. Co., 312 U.S. 592, 596, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064 (1941) (Chicago Railroad) (noting that “the determination of the necessity for a given improvement of navigable capacity, and the character and extent of it, is for Congress alone”). Thus, the Supreme Court has made it clear that courts should not second-guess the legislature’s determination that a particular governmental project will serve the interests of navigation. The spatial boundaries of the federal navigational servitude are marked by the ordinary high water lines along the banks of a navigable waterway, and the effect of the servitude is not limited to those portions of a river or stream that are actually navigable in fact. See Allen Gun Club v. United States, 180 Ct.Cl. 423, 429 (1967) (holding that “[t]he navigation easement is not limited to the thread of the stream where vessels pass, but extends from ordinary high water on one side to ordinary high water on the other”). The ordinary high water line marks both the vertical and the horizontal boundaries of the servitude. See Owen, 851 F.2d at 1410 (noting that “Supreme Court precedent properly limits the range of the navigational servitude to the land beneath and within the navigable stream’s high-water mark”) (emphasis added). The navigational servitude does not protect the government against liability for property damages that occur beyond the horizontal and vertical limits established by the ordinary high water line, see Tri-State Materials Corp. v. United States, 213 Ct.Cl. 1, 550 F.2d 1, 5-9 (Ct.Cl.1977) (holding that the permanent invasion of an underground mine located below the elevation of the ordinary high water line but beyond the horizontal limits of the riverbed was beyond the reach of the navigational servitude), nor does it apply to riparian property located on a non-namgable waterway, see United States v. Cress, 243 U.S. 316, 325-26, 37 S.Ct. 380, 61 L.Ed. 746 (1917) (holding that taldngs claims related to the flooding of property located along a non-navigable stream were not barred by the servitude). b. Applicability of the Federal Navigational Servitude to Claims Alleging a" } ]

[ { "docid": "12167786", "title": "", "text": "the handful of cases, on which the appellants rely, is that in some cases review of orders denying motions to dismiss because of lack of jurisdiction may be available as a matter of discretion. Indeed, they appear to constitute a mi gen-eris exception, recognized as such by the Supreme Court of Oregon, to the rule that “the prospect of suffering the burden of litigation [is not] a sufficient injury in itself to justify mandamus.” State ex rel. Auto. Emporium, Inc. v. Murchison, 289 Or. 265, 611 P.2d 1169, 1171 & n. 5 (1980). We need not belabor this issue, however, because the availability of such discretionary review in Oregon state court, as opposed to an appeal as a matter of right, provides no support for appellants’ argument that Or.Rev.Stat. § 31.150 was intended to provide a right not to be tried. Indeed, the California Legislature included a provision in its anti-SLAPP statute providing for an interlocutory appeal, because it regarded discretionary review as inadequate to protect the defendant from “the cost of a lawsuit before having his or her right to free speech vindicated.” Batzel, 333 F.3d at 1025 (quoting Cal. Sen. Judiciary Comm. Rep. on AB 1675, at 4). We emphasize that our brief discussion of the availability of mandamus in Oregon is not intended to suggest that Oregon law determines the availability of appellate review here. On the contrary, federal law is controlling on this issue. Nor did Batzel suggest otherwise. Batzel did not hold that an order denying a special motion to strike was appealable under the collateral order doctrine merely because California authorized an appeal as a matter of right. Instead, it held that, if a legislature provided an appeal unique to its anti-SLAPP statute, as was the case in California, it could be inferred that its purpose was to confer immunity from suit — an immunity which can only be vindicated by permitting an interlocutory appeal. This is not the case here. With respect to its anti-SLAPP statute, Oregon has chosen to apply a final judgment rule comparable to that prescribed in 28 U.S.C. §" } ]

[ { "docid": "20807321", "title": "", "text": "a motion to dismiss a legal action under Section 27.003 or from a trial court’s failure to rule on that motion in the time prescribed by Section 27.005.” Tex. Civ. Prac. & Rem.Code Ann. § 27.008(b). Consistent with Batzel, Go-din, Englert, and Metabolic Research, it appears that, by providing this right, the Texas legislature has indicated the nature of the underlying right the TCPA seeks to protect. That right is not simply the right to avoid ultimate liability in a SLAPP case, but rather is the right to avoid trial in the first instance. Thus, “[b]ecause the anti-SLAPP motion is designed to protect the defendant from having to litigate meritless cases aimed at chilling First Amendment expression, the district court’s denial of an anti-SLAPP motion would effectively be unreviewable on appeal from a final judgment.” Batzel, 333 F.3d at 1025. We also note that this conclusion is consistent with the Supreme Court’s most recent pronouncements on the collateral order doctrine. In Will, for example, the Court explained that immediate review must advance “some particular value of a high order.” 546 U.S. at 352, 126 S.Ct. 952. “That is, it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is effectively unreviewable if review is to be left until later.” Id. at 353, 126 S.Ct. 952 (citation and internal quotation marks omitted). As the Metabolic Research court explained, “[a] legislatively approved immunity from trial, as opposed to a mere claim of a right not to be tried, is imbued with a significant public interest.” 693 F.3d at 800; see also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (“When a policy is embodied in a constitutional or statutory provision entitling a party to immunity from suit (a rare form of protection), there is little room for the judiciary to gainsay its ‘importance.’”). Likewise, “[i]t would be difficult to find a value of a ‘high[er] order’ than the constitutionally-protected rights to free speech and petition" }, { "docid": "20807315", "title": "", "text": "court’s order effectively unreviewable on appeal from a final judgment ? For the collateral order doctrine to apply, the district court’s order must be effectively unreviewable on appeal. “Perhaps the embodiment of unreviewability, then, is immunity from suit....” Henry, 566 F.3d at 177. In determining whether a right confers immunity, the critical inquiry is whether the statute provides a right not to stand trial in the first place and to otherwise avoid the burdens of litigation. Mitchell v. Forsyth, 472 U.S. 511, 525-26, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). If an essential part of the defendant’s claim is the right to avoid the burden of trial, then this final requirement of the collateral order doctrine is met because obtaining relief after trial is too late. Id. at 525, 105 S.Ct. 2806. In Henry, the court held that the denial of a Louisiana anti-SLAPP motion satisfied the unreviewability requirement. 566 F.3d at 178. (“[The statute] thus provides a right not to stand trial, as avoiding the costs of trial is the very purpose of the statute.”). The TCPA’s own provisions for interlocutory review are instructive. To be sure, state law does not control the question of whether appellate review is available in federal court. See, e.g., Englert v. MacDonell, 551 F.3d 1099, 1107 (9th Cir.2009) (“We emphasize that our brief discussion of the availability of mandamus in Oregon is not intended to suggest that Oregon law determines the availability of appellate review here. On the contrary, federal law is controlling on this issue.”). However, numerous courts have recognized that the absence or presence of interlocutory statutory review mechanisms at the state level informs the question of whether interlocutory appeal is permissible in federal courts. See Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 151 (2d Cir.2013); DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1015-16 (9th Cir.2013); Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 800-01 (9th Cir.2012); Godin v. Schencks, 629 F.3d 79, 85 (1st Cir.2010); Englert, 551 F.3d at 1105-06; Batzel, 333 F.3d at 1025. This “is relevant not because state law determines the availability of" }, { "docid": "20807317", "title": "", "text": "appellate review [in federal court] — it does not — but rather because [it demonstrates whether] ‘lawmakers wanted to protect speakers from the trial itself rather than merely from liability.’ ” Godin, 629 F.3d at 85 (quoting Batzel, 333 F.3d at 1025). Thus, in Batzel, the court found “instructive that California’s anti-SLAPP statute provide[d] that an order denying an anti-SLAPP motion may be appealed immediately.” 333 F.3d at 1025. This, along with that statute’s legislative history, evidenced “that California lawmakers wanted to protect speakers from the trial itself rather than merely from liability.” Id. The court continued by explaining that, “[i]f the defendant were required to wait until final judgment to appeal the denial of a meritorious anti-SLAPP motion, a decision by this court reversing the district court’s denial of the motion would not remedy the fact that the defendant had been compelled to defend against a meritless claim brought to chill rights of free expression.” Id. Accordingly, the court concluded that “a defendant’s rights under the anti-SLAPP statute are in the nature of immunity: They protect the defendant from the burdens of trial, not merely from ultimate judgments of liability.” Id.; see also Godin, 629 F.3d at 85 (citing Englert, 551 F.3d at 1107, with approval for the proposition that “whether [a] state anti-SLAPP statute provides for interlocutory appeals is significant to whether interlocutory appeals should be permitted in federal courts”). Equally instructive on the importance of an expedited state appeal process is the analysis undertaken by the Englert and Metabolic Research courts — apparently the only two federal courts to have concluded that orders denying motions to dismiss anti-SLAPP suits are not immediately appealable under the collateral order doctrine. In Englert, the Ninth Circuit held that Oregon’s anti-SLAPP statute “was not intended to provide a right not to be tried.” 551 F.3d at 1105. In reaching this conclusion, the court reasoned that “the failure of the Oregon anti-SLAPP statute to provide for an appeal from an order denying a special motion to strike ... surely suggests that Oregon does not view such a remedy as necessary to protect" }, { "docid": "17102293", "title": "", "text": "pre-2010 statute “were more akin to defenses against liability than immunities from suit, in that they did not provide for any consistent right of immediate appeal from the denial of an anti-SLAPP motion.” Id. It is not the mere availability of immediate state appeal provided in the statute that creates the right to appeal under the federal collateral order doctrine, but rather that when “a legislature provide[s] an appeal unique to its anti-SLAPP statute ... -it could be inferred that its purpose was to confer immunity from suit — an immunity which can only be vindicated by permitting an interlocutory appeal.” Englert, 551 F.3d at 1107 (discussing the holding in Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir.2003) that California’s immediate appeal provision and the statute’s legislative history were instructive in “demonstrating] that California lawmakers wanted to protect speakers from the trial itself rather than merely from liability”). That different state procedures are already interpreted by our case law to create ultimately different federal procedural outcomes — such as the availability of appeal under the collateral order doctrine — is further evidence that it makes no sense to treat state anti-SLAPP statutes as substantive state law under Erie." }, { "docid": "15423001", "title": "", "text": "For the collateral order doctrine to apply, the interlocutory order must present: (1) a conclusive decision, (2) distinct from the merits of the action, (3) on an important issue, (4) which would effectively be unreviewable on appeal from a final judgment. Awuah v. Coverall N. Am. Inc., 585 F.3d 479, 480 (1st Cir.2009); see also Will v. Hallock, 546 U.S. 345, 349, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006). Three federal circuit decisions hold there is appellate jurisdiction over an order denying an anti-SLAPP motion to dismiss, Hilton v. Hallmark Cards, 580 F.3d 874, 880 (9th Cir.2009), Henry, 566 F.3d at 181, and Batzel v. Smith, 333 F.3d 1018, 1024-26 (9th Cir.2003), while one, also from the Ninth Circuit, holds to the contrary, see Englert v. MacDonell, 551 F.3d 1099 (9th Cir.2009). The issue here is narrower and concerned only with the immediate appealability of an order that a state anti-SLAPP statute does not apply at all to federal court proceedings due to Federal Rules 12 and 56. We defer to another day resolution of the question of whether an order addressed to the merits of a ruling under an anti-SLAPP statute is immediately appealable. We have appellate jurisdiction. First, the order conclusively decides that relief under Maine’s Section 556 is unavailable to the individual defendants. The relevant inquiry for collateral order doctrine purposes is whether the order is conclusive as to “the disputed question,” not the action as a whole. Will, 546 U.S. at 349, 126 S.Ct. 952 (quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)). Second, the issue of whether a defendant can utilize Section 556 in federal court is distinct from the merits of Godin’s action. The legal issue before us is not so intertwined with factual issues as to make it “highly unlikely to affect, or even be consequential to, anyone aside from the parties.” Lee-Barnes v. Puerto Ven Quarry Corp., 513 F.3d 20, 26 (1st Cir. 2008). Third, this appeal raises an important issue of law because the issue raised" }, { "docid": "17076912", "title": "", "text": "not appealable under the collateral order doctrine. See Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 800-02 (9th Cir.2012); Englert v. MacDonell, 551 F.3d 1099, 1105-07 (9th Cir.2009). The Englert court concluded that Oregon’s statute “was not intended to provide a right not to be tried, as distinguished from a right to have the legal sufficiency of the evidence underlying the complaint reviewed by a nisi prius judge before a defendant is required to undergo the burden and expense of a trial.” Englert, 551 F.3d at 1105. The court’s conclusion was “based on the failure of the Oregon anti-SLAPP statute to provide for an appeal from an order denying a special motion to strike.” Id. The Ninth Circuit used the same reasoning in Metabolic Research, holding that “Nevada’s anti-SLAPP statute is more like Oregon’s at the time we decided Englert” because “unlike California’s, it does not furnish its citizens with immunity from trial,” 693 F.3d at 801, and “[a] legislatively approved immunity from trial, as opposed to a mere claim of a right not to be tried, is imbued with a significant public interest,” id. at 800. The First Circuit determined it had jurisdiction under the collateral order doctrine over “an order that a state anti-SLAPP statute does not apply at all to federal court proceedings due to [a direct conflict with] Federal Rules 12 and 56.” Godin v. Schencks, 629 F.3d 79, 84 (1st Cir.2010). The court found that “[i]t is relevant, but not conclusive” that Maine’s anti-SLAPP statute, as interpreted by the state supreme court, permits interlocutory appeals of orders denying special motions to dismiss, because it demonstrates that Maine’s legislature “wanted to protect speakers from the trial itself rather than merely from liability.” Id. at 85 (quoting Batzel, 333 F.3d at 1025). The court used this determination to reach its ultimate conclusion that “the order at issue here involves ‘an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.’ ” Id. (quoting Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 499, 109 S.Ct. 1976, 104 L.Ed.2d 548" }, { "docid": "20807318", "title": "", "text": "They protect the defendant from the burdens of trial, not merely from ultimate judgments of liability.” Id.; see also Godin, 629 F.3d at 85 (citing Englert, 551 F.3d at 1107, with approval for the proposition that “whether [a] state anti-SLAPP statute provides for interlocutory appeals is significant to whether interlocutory appeals should be permitted in federal courts”). Equally instructive on the importance of an expedited state appeal process is the analysis undertaken by the Englert and Metabolic Research courts — apparently the only two federal courts to have concluded that orders denying motions to dismiss anti-SLAPP suits are not immediately appealable under the collateral order doctrine. In Englert, the Ninth Circuit held that Oregon’s anti-SLAPP statute “was not intended to provide a right not to be tried.” 551 F.3d at 1105. In reaching this conclusion, the court reasoned that “the failure of the Oregon anti-SLAPP statute to provide for an appeal from an order denying a special motion to strike ... surely suggests that Oregon does not view such a remedy as necessary to protect the considerations underlying its anti-SLAPP statute.” Id. The court continued that: The failure of the Oregon Legislature to provide for an appeal from the denial of a special motion to strike provides compelling evidence that, unlike their California counterparts, Oregon lawmakers did not want to protect speakers from the trial itself, as much as they wanted to have in place a process by which a nisi prius judge would promptly review the evidence underlying the defamation complaint to determine whether it had sufficient merit to go forward. Id. at 1106 (citation and internal quotations marks omitted). Englert emphasized that this distinguished the case from Bat-zel which had “held that, if a legislature provided an appeal unique to its anti-SLAPP statute ... it could be inferred that its purpose was to confer immunity from suit — an immunity which can only be vindicated by permitting an interlocutory appeal.” Id. at 1107. The Metabolic Research court reached the same conclusion in connection with Nevada’s anti-SLAPP statute. 693 F.3d at 801. There, the court held that its review" }, { "docid": "17102290", "title": "", "text": "629 F.3d 79, 81, 85-91 (1st Cir.2010); Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 168-69 (5th Cir.2009). I’ve read their opinions ' and find them no more persuasive than News-ham itself. It’s time we led the way back out of the wilderness. Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the Federal Rules, our jurisdictional statutes and Supreme Court interpretations thereof. As a three judge panel, Metabolife could only do so much, and we are generally bound to. follow Newsham. But if this or another.case were taken en banc, we could take a fresh look at . the question. I believe we should. Judge PÁEZ, with whom Chief Judge KOZINSKI joins, concurring: I concur fully in Judge Wardlaw’s fine opinion. I also join Chief Judge Kozinski’s concurrence because I, too, believe that United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir.1999), is wrong and should be reconsidered. I agree that California’s anti-SLAPP statute is “quintessentially procedural,” and its application in federal court has created a hybrid, mess that now resembles neither the Federal Rules nor the original state statute. Yet another reason to reconsider the application of state anti-SLAPP statutes in federal court is that there are significant state-by-state variations within the circuit, despite facial similarities and identical procedural- purposes of each state’s anti- SLAPP statute. Newsham’s holding — although considering only California’s anti-SLAPP statute — has been extended to Oregon’s anti-SLAPP statute and, arguably, sub silentio to Nevada’s as well. See Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 798-800, 798 n. 4 (9th Cir.2012) (holding that the denial of a motion to strike under Nevada’s anti-SLAPP statute is not an appealable collateral order but not deciding whether “the Nevada anti-SLAPP statute is available to litigants proceeding in federal court”); Gardner v. Martino, 563 F.3d 981, 991 (9th Cir.2009) (holding that Oregon’s anti-SLAPP statute, which requires entry of a judgment of dismissal without prejudice, is applicable in federal court because it “does not directly conflict with the Federal" }, { "docid": "9277873", "title": "", "text": "original Bill, § 2.A plainly provided that a defendant was immune from liability in an action arising out of the defendant's objectively reasonable or good faith exercise of free speech before a governmental body. The original version of H.B. 241 unequivocally illustrates that the New Mexico legislature understands quite well how to draft a law providing a class of individuals with a limited immunity from suit. But the revised version of H.B. 241, which ended up as N.M. Stat. Ann. §§ 38-2-9.1 & 38-2-9.2, removed all references to immunity. This history undoubtedly reinforces our plain reading of the New Mexico anti-SLAPP statute as a purely procedural device. Defendants' faulty reasoning finds its genesis (not surprisingly) in the Ninth Circuit's decision in Batzel v. Smith , 333 F.3d 1018 (9th Cir. 2003). There, the court in passing described a defendant's rights under the California anti-SLAPP statute as \"in the nature of immunity: They protect the defendant from the burdens of trial, not merely from the ultimate judgments of liability.\" Id. at 1025 ; see also NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C. , 745 F.3d 742 (5th Cir. 2014) (blindly following Batzel 's dicta and, absent critical analysis, construing Texas' anti-SLAPP statute as a grant of immunity). But right or wrong, the Ninth Circuit's construction of a California statute very different from its New Mexico counterpart is none of our business. Our concern is with the proper interpretation of a much narrower statute, one that, as we have seen, does not protect a defendant \"from the ultimate judgments of liability.\" See Metabolic Research, Inc. v. Ferrell , 693 F.3d 795, 799 (9th Cir. 2012) (\"[D]eeper inspection has persuaded us that, while all of the [anti-SLAPP] statutes have common elements, there are significant differences as well, so that each state's statutory scheme must be evaluated separately.\"). The Erie analysis called for in more nuanced cases, if properly undertaken, makes no difference to a correct resolution of this case. First, whether the New Mexico anti-SLAPP statute can logically operate alongside the Federal Rules of Civil Procedure without conflict is very much debatable. Rules" }, { "docid": "17102291", "title": "", "text": "“quintessentially procedural,” and its application in federal court has created a hybrid, mess that now resembles neither the Federal Rules nor the original state statute. Yet another reason to reconsider the application of state anti-SLAPP statutes in federal court is that there are significant state-by-state variations within the circuit, despite facial similarities and identical procedural- purposes of each state’s anti- SLAPP statute. Newsham’s holding — although considering only California’s anti-SLAPP statute — has been extended to Oregon’s anti-SLAPP statute and, arguably, sub silentio to Nevada’s as well. See Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 798-800, 798 n. 4 (9th Cir.2012) (holding that the denial of a motion to strike under Nevada’s anti-SLAPP statute is not an appealable collateral order but not deciding whether “the Nevada anti-SLAPP statute is available to litigants proceeding in federal court”); Gardner v. Martino, 563 F.3d 981, 991 (9th Cir.2009) (holding that Oregon’s anti-SLAPP statute, which requires entry of a judgment of dismissal without prejudice, is applicable in federal court because it “does not directly conflict with the Federal Rules and Oregon’s civil procedure rules”); see also Englert v. MacDonell, 551 F.3d 1099, 1102 (9th Cir. 2009) (dismissing for lack of jurisdiction an appeal from the denial of an Oregon defendant’s special motion to strike because the motion functions like a denial of a motion for summary judgment without deciding whether the Oregon statute would conflict with Federal Rule of Civil Procedure 56(c)), superseded by statute, Act of June 23, 2009, ch. 449, § 1, 2009 Or. Laws 1194, 1194 (codified at Or.Rev.Stat. § 31.150(1)), see also id. § 3, 2009 Or. Laws at 1195 (codified at Or. Stat. § 31.152(4)) (stating that the purpose of the revised anti-SLAPP statute is “to provide a defendant with the right not to proceed to trial in eases in which the plaintiff does 'not meet the burden specified” by the statute). These differences play out in’ the availability of an appeal under the collateral order doctrine. See DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1016 (9th Cir.2013). DC Comics recognized that Nevada’s statute and Oregon’s" }, { "docid": "17076913", "title": "", "text": "be tried, is imbued with a significant public interest,” id. at 800. The First Circuit determined it had jurisdiction under the collateral order doctrine over “an order that a state anti-SLAPP statute does not apply at all to federal court proceedings due to [a direct conflict with] Federal Rules 12 and 56.” Godin v. Schencks, 629 F.3d 79, 84 (1st Cir.2010). The court found that “[i]t is relevant, but not conclusive” that Maine’s anti-SLAPP statute, as interpreted by the state supreme court, permits interlocutory appeals of orders denying special motions to dismiss, because it demonstrates that Maine’s legislature “wanted to protect speakers from the trial itself rather than merely from liability.” Id. at 85 (quoting Batzel, 333 F.3d at 1025). The court used this determination to reach its ultimate conclusion that “the order at issue here involves ‘an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.’ ” Id. (quoting Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 499, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989)). The Fifth Circuit also decided that an order denying a motion to dismiss under Louisiana’s anti-SLAPP statute is immediately appealable under the collateral order doctrine, in part because the statute “provides a right not to stand trial, as avoiding the costs of trial is the very purpose of the statute.” Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 178 (5th Cir.2009). The court recognized that “[l]ike Oregon’s anti-SLAPP statute, Article 971 does not include a provision expressly authorizing immediate appeal.” Id. at n. *. It attempted to harmonize this apparent departure from the Ninth Circuit’s reasoning by noting that Louisiana’s courts “allow immediate appeals through writs of supervision.” Id. With respect to the D.C. anti-SLAPP Act, the statute’s text contains no provision for interlocutory appeals. The D.C. Council’s Committee on Public Safety and the Judiciary explained in its legislative report that it had removed such a provision, included in the original bill, because of a decision of the D.C. Court of Appeals that the Council could not expand the appellate jurisdiction of" }, { "docid": "15423004", "title": "", "text": "review of these decisions at this stage would impose additional litigation costs on defendants, the very harm the statute seeks to avoid, and would result in a loss of defendants’ substantial rights.” Schelling v. Lindell, 942 A.2d 1226, 1229-30 (Me.2008); see also Maietta Const., Inc. v. Wainwright, 847 A.2d 1169, 1173 (Me. 2004) (discussing purpose of Section 556). That is relevant not because state law determines the availability of appellate review here — it does not — but rather because “lawmakers wanted to protect speakers from the trial itself rather than merely from liability.” Batzel, 333 F.3d at 1025; see also Englert, 551 F.3d at 1107 (whether state anti-SLAPP statute provides for interlocutory appeals is significant to whether interlocutory appeals should be permitted in federal courts). There is a “crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 801, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989) (quoting United States v. Hollywood Motor Car Co., 458 U.S. 263, 269, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982)) (internal quotation marks omitted). We conclude that the order at issue here involves “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 499, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989) (quoting Midland Asphalt Corp., 489 U.S. at 799, 109 S.Ct. 1494) (internal quotation mark omitted). III. The district court’s order rests on a determination of law, which we review de novo. See Levin v. Dalva Bros. Inc., 459 F.3d 68, 73 (1st Cir.2006). It is often said that a federal court sitting in diversity jurisdiction applies the state’s substantive law and the federal procedural rules. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Hoyos v. Telecorp. Comm., Inc., 488 F.3d 1, 5 (1st Cir.2007); Servicios Comerciales Andinos, S.A. v. General Elec. Del Caribe," }, { "docid": "20807319", "title": "", "text": "the considerations underlying its anti-SLAPP statute.” Id. The court continued that: The failure of the Oregon Legislature to provide for an appeal from the denial of a special motion to strike provides compelling evidence that, unlike their California counterparts, Oregon lawmakers did not want to protect speakers from the trial itself, as much as they wanted to have in place a process by which a nisi prius judge would promptly review the evidence underlying the defamation complaint to determine whether it had sufficient merit to go forward. Id. at 1106 (citation and internal quotations marks omitted). Englert emphasized that this distinguished the case from Bat-zel which had “held that, if a legislature provided an appeal unique to its anti-SLAPP statute ... it could be inferred that its purpose was to confer immunity from suit — an immunity which can only be vindicated by permitting an interlocutory appeal.” Id. at 1107. The Metabolic Research court reached the same conclusion in connection with Nevada’s anti-SLAPP statute. 693 F.3d at 801. There, the court held that its review of Nevada’s law led it to the conclusion that the statute’s “underlying values and purpose [were] satisfied without resort to an immediate appeal because, unlike California’s, it [did] not furnish its citizens with immunity from trial.” Id. Underlying this holding were the court’s observations that “Nevada’s anti-SLAPP statute [did] not expressly provide for an immediate right to appeal,” and that the statute explicitly indicated that its purpose was to provide defendants immunity from “civil liability ” as opposed to immunity from suit or trial. Id. at 802. Accordingly, like the Englert court, the Metabolic Research court concluded that a motion to dismiss under Nevada’s anti-SLAPP statute did not satisfy the third prong of the collateral order doctrine. With respect to the right to an immediate appeal, the TCPA is more similar to the statutes at issue in Batzel and Godin than those considered in Englert and Metabolic Research. Section 27.008 of the TCPA provides that “[a]n appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on" }, { "docid": "17076911", "title": "", "text": "842 (1994). Other courts of appeals have considered whether the collateral order doctrine permits review of interlocutory appeals from denials of motions to dismiss under state anti-SLAPP statutes. In Batzel v. Smith, 333 F.3d 1018 (9th Cir.2003), the Ninth Circuit held that “[b]ecause California law recognizes the protection of the anti-SLAPP statute as a substantive immunity from suit, this Court, sitting in diversity, will do so as well.” Id. at 1025-26. It then concluded that it had jurisdiction over the appeal because “[a] district court’s denial of a claim of immunity, to the extent that it turns on an issue of law, is an appealable final decision within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Id. at 1026; see also DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1013-16 (9th Cir.2013); Hilton v. Hallmark Cards, 599 F.3d 894, 900 (9th Cir.2010). But the Ninth Circuit also held that district court orders denying motions to dismiss under Nevada’s and Oregon’s anti-SLAPP statutes were not final orders and were not appealable under the collateral order doctrine. See Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 800-02 (9th Cir.2012); Englert v. MacDonell, 551 F.3d 1099, 1105-07 (9th Cir.2009). The Englert court concluded that Oregon’s statute “was not intended to provide a right not to be tried, as distinguished from a right to have the legal sufficiency of the evidence underlying the complaint reviewed by a nisi prius judge before a defendant is required to undergo the burden and expense of a trial.” Englert, 551 F.3d at 1105. The court’s conclusion was “based on the failure of the Oregon anti-SLAPP statute to provide for an appeal from an order denying a special motion to strike.” Id. The Ninth Circuit used the same reasoning in Metabolic Research, holding that “Nevada’s anti-SLAPP statute is more like Oregon’s at the time we decided Englert” because “unlike California’s, it does not furnish its citizens with immunity from trial,” 693 F.3d at 801, and “[a] legislatively approved immunity from trial, as opposed to a mere claim of a right not to" }, { "docid": "20807320", "title": "", "text": "of Nevada’s law led it to the conclusion that the statute’s “underlying values and purpose [were] satisfied without resort to an immediate appeal because, unlike California’s, it [did] not furnish its citizens with immunity from trial.” Id. Underlying this holding were the court’s observations that “Nevada’s anti-SLAPP statute [did] not expressly provide for an immediate right to appeal,” and that the statute explicitly indicated that its purpose was to provide defendants immunity from “civil liability ” as opposed to immunity from suit or trial. Id. at 802. Accordingly, like the Englert court, the Metabolic Research court concluded that a motion to dismiss under Nevada’s anti-SLAPP statute did not satisfy the third prong of the collateral order doctrine. With respect to the right to an immediate appeal, the TCPA is more similar to the statutes at issue in Batzel and Godin than those considered in Englert and Metabolic Research. Section 27.008 of the TCPA provides that “[a]n appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 or from a trial court’s failure to rule on that motion in the time prescribed by Section 27.005.” Tex. Civ. Prac. & Rem.Code Ann. § 27.008(b). Consistent with Batzel, Go-din, Englert, and Metabolic Research, it appears that, by providing this right, the Texas legislature has indicated the nature of the underlying right the TCPA seeks to protect. That right is not simply the right to avoid ultimate liability in a SLAPP case, but rather is the right to avoid trial in the first instance. Thus, “[b]ecause the anti-SLAPP motion is designed to protect the defendant from having to litigate meritless cases aimed at chilling First Amendment expression, the district court’s denial of an anti-SLAPP motion would effectively be unreviewable on appeal from a final judgment.” Batzel, 333 F.3d at 1025. We also note that this conclusion is consistent with the Supreme Court’s most recent pronouncements on the collateral order doctrine. In Will, for example, the Court explained that immediate review must advance “some particular value" }, { "docid": "15423026", "title": "", "text": "Ortho Biotech Prods., L.P., 579 F.3d 13, 20 (1st Cir. 2009). . Because of the important public interests at stake, Witt v. Hallock, 546 U.S. 345, 353, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006), contrary to Godin's arguments, reinforces our conclusion. . The New Jersey statute at issue in Cohen made the plaintiff in a stockholder's derivative action “liable for all expenses, including attorney's fees, of the defense” and required \"security for their payment as a condition of prosecuting the action.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 543, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). . Godin's reliance on Englert is thus misplaced. There, in dismissing the defendants’ consolidated interlocutory appeals on the basis that an order denying an anti-SLAPP motion could be effectively reviewed after final judgment, the Ninth Circuit found it important that Oregon’s anti-SLAPP statute did not itself make interlocutory appeals available in state-court proceedings. Englert v. MacDonell, 551 F.3d 1099, 1106-07 (9th Cir.2009). Englert, with its heavy reliance on the view of Oregon law regarding the availability of interlocutory appeals, cuts against Godin’s posilion given the availability of such appeals in this context under Maine law. . Our analysis regarding this pendent state-law claim proceeds as it would were this a state-law claim brought in federal court by virtue of diversity jurisdiction. See Doty v. Sewall, 908 F.2d 1053, 1063 (1st Cir.1990). . We have held that a nominally procedural state rule authorizing an award of attorney's fees as a sanction for obstinate litigation is substantive for purposes of Erie analysis. Ser vicios Comerciales Andinos, S.A. v. Gen. Elec. Del Caribe, Inc., 145 F.3d 463, 478 (1st Cir. 1998). State conflict of laws rules are also considered substantive. Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975). . This shift was described in our opinion in Gil de Rebollo v. Miami Heat Ass’ns, Inc., 137 F.3d 56, 65 n. 5 (1st Cir.1998). One concern motivating the shift was the fact that it “would make no sense for the supremacy of federal law to wane precisely" }, { "docid": "20807316", "title": "", "text": "statute.”). The TCPA’s own provisions for interlocutory review are instructive. To be sure, state law does not control the question of whether appellate review is available in federal court. See, e.g., Englert v. MacDonell, 551 F.3d 1099, 1107 (9th Cir.2009) (“We emphasize that our brief discussion of the availability of mandamus in Oregon is not intended to suggest that Oregon law determines the availability of appellate review here. On the contrary, federal law is controlling on this issue.”). However, numerous courts have recognized that the absence or presence of interlocutory statutory review mechanisms at the state level informs the question of whether interlocutory appeal is permissible in federal courts. See Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 151 (2d Cir.2013); DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1015-16 (9th Cir.2013); Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 800-01 (9th Cir.2012); Godin v. Schencks, 629 F.3d 79, 85 (1st Cir.2010); Englert, 551 F.3d at 1105-06; Batzel, 333 F.3d at 1025. This “is relevant not because state law determines the availability of appellate review [in federal court] — it does not — but rather because [it demonstrates whether] ‘lawmakers wanted to protect speakers from the trial itself rather than merely from liability.’ ” Godin, 629 F.3d at 85 (quoting Batzel, 333 F.3d at 1025). Thus, in Batzel, the court found “instructive that California’s anti-SLAPP statute provide[d] that an order denying an anti-SLAPP motion may be appealed immediately.” 333 F.3d at 1025. This, along with that statute’s legislative history, evidenced “that California lawmakers wanted to protect speakers from the trial itself rather than merely from liability.” Id. The court continued by explaining that, “[i]f the defendant were required to wait until final judgment to appeal the denial of a meritorious anti-SLAPP motion, a decision by this court reversing the district court’s denial of the motion would not remedy the fact that the defendant had been compelled to defend against a meritless claim brought to chill rights of free expression.” Id. Accordingly, the court concluded that “a defendant’s rights under the anti-SLAPP statute are in the nature of immunity:" }, { "docid": "17102292", "title": "", "text": "Rules and Oregon’s civil procedure rules”); see also Englert v. MacDonell, 551 F.3d 1099, 1102 (9th Cir. 2009) (dismissing for lack of jurisdiction an appeal from the denial of an Oregon defendant’s special motion to strike because the motion functions like a denial of a motion for summary judgment without deciding whether the Oregon statute would conflict with Federal Rule of Civil Procedure 56(c)), superseded by statute, Act of June 23, 2009, ch. 449, § 1, 2009 Or. Laws 1194, 1194 (codified at Or.Rev.Stat. § 31.150(1)), see also id. § 3, 2009 Or. Laws at 1195 (codified at Or. Stat. § 31.152(4)) (stating that the purpose of the revised anti-SLAPP statute is “to provide a defendant with the right not to proceed to trial in eases in which the plaintiff does 'not meet the burden specified” by the statute). These differences play out in’ the availability of an appeal under the collateral order doctrine. See DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1016 (9th Cir.2013). DC Comics recognized that Nevada’s statute and Oregon’s pre-2010 statute “were more akin to defenses against liability than immunities from suit, in that they did not provide for any consistent right of immediate appeal from the denial of an anti-SLAPP motion.” Id. It is not the mere availability of immediate state appeal provided in the statute that creates the right to appeal under the federal collateral order doctrine, but rather that when “a legislature provide[s] an appeal unique to its anti-SLAPP statute ... -it could be inferred that its purpose was to confer immunity from suit — an immunity which can only be vindicated by permitting an interlocutory appeal.” Englert, 551 F.3d at 1107 (discussing the holding in Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir.2003) that California’s immediate appeal provision and the statute’s legislative history were instructive in “demonstrating] that California lawmakers wanted to protect speakers from the trial itself rather than merely from liability”). That different state procedures are already interpreted by our case law to create ultimately different federal procedural outcomes — such as the availability of appeal under" }, { "docid": "9277874", "title": "", "text": "L.L.C. v. Mauze & Bagby, P.L.L.C. , 745 F.3d 742 (5th Cir. 2014) (blindly following Batzel 's dicta and, absent critical analysis, construing Texas' anti-SLAPP statute as a grant of immunity). But right or wrong, the Ninth Circuit's construction of a California statute very different from its New Mexico counterpart is none of our business. Our concern is with the proper interpretation of a much narrower statute, one that, as we have seen, does not protect a defendant \"from the ultimate judgments of liability.\" See Metabolic Research, Inc. v. Ferrell , 693 F.3d 795, 799 (9th Cir. 2012) (\"[D]eeper inspection has persuaded us that, while all of the [anti-SLAPP] statutes have common elements, there are significant differences as well, so that each state's statutory scheme must be evaluated separately.\"). The Erie analysis called for in more nuanced cases, if properly undertaken, makes no difference to a correct resolution of this case. First, whether the New Mexico anti-SLAPP statute can logically operate alongside the Federal Rules of Civil Procedure without conflict is very much debatable. Rules 11 (sanctions), 12(b) (motions to dismiss), 12(c) (motions for judgment on the pleadings), 16(a) (expedited proceedings), and 56 (motions for summary judgment) seem to cover all the bases, leaving little room for § 38-2-9.1 to operate in federal court. But even assuming for the sake of brevity that the anti-SLAPP statute can exist alongside the Federal Rules, the twin aims of Erie -\"discouragement of forum-shopping and avoidance of inequitable administration of the laws\"-do not render the state statute substantive for Erie purposes. Hanna v. Plumer , 380 U.S. 460, 468, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). Anyone who believes that a federal district court is ill-equipped to deal swiftly and harshly with the sort of lawsuits described in N.M. Stat. Ann. § 38-2-9.2 absent application of § 38-2-9.1 is seriously mistaken. Those litigants and lawyers who seek to circumvent application of the New Mexico anti-SLAPP statute by filing a baseless SLAPP lawsuit in federal district court are in for a rude awakening. The Court correctly points out that in applying the collateral order doctrine" }, { "docid": "17076910", "title": "", "text": "became effective March 31, 2011, was intended to “allow a defendant to more expeditiously, and more equitably, dispense” with such a suit. Id. It provides that a moving party is entitled to dismissal of the complaint upon a prima facie showing that the claim arises from conduct protected by the statute, unless the responding party demonstrates a likelihood of success on the merits. D.C.Code §§ 16-5501,16-5502. The first question is whether we have appellate jurisdiction. The question presented itself because the district court’s order was not a final judgment ending the action. See 28 U.S.C. § 1291. Defendant O’Connor invokes the collateral order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). This confers appellate jurisdiction over “district court decisions that are conclusive, that resolve important questions completely separate from the merits, and that would render such important questions effectively unreviewable on appeal from final judgment in the underlying action.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). Other courts of appeals have considered whether the collateral order doctrine permits review of interlocutory appeals from denials of motions to dismiss under state anti-SLAPP statutes. In Batzel v. Smith, 333 F.3d 1018 (9th Cir.2003), the Ninth Circuit held that “[b]ecause California law recognizes the protection of the anti-SLAPP statute as a substantive immunity from suit, this Court, sitting in diversity, will do so as well.” Id. at 1025-26. It then concluded that it had jurisdiction over the appeal because “[a] district court’s denial of a claim of immunity, to the extent that it turns on an issue of law, is an appealable final decision within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Id. at 1026; see also DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1013-16 (9th Cir.2013); Hilton v. Hallmark Cards, 599 F.3d 894, 900 (9th Cir.2010). But the Ninth Circuit also held that district court orders denying motions to dismiss under Nevada’s and Oregon’s anti-SLAPP statutes were not final orders and were" } ]

[ { "docid": "23518600", "title": "", "text": "should have issued written findings, whether numbered consecutively or narrated in an opinion, clearly resolving each genuine issue of material fact. We could remand the case to the same judge who tried it, with directions to comply with Rule 52(a) and reexamine the case under the correct legal standards; but the trial ended a year ago and the record may well be stale in the judge’s mind. We think it best to remand for a new trial, which under Circuit Rule 18 will be conducted by a different judge. Two issues remain to be considered. First, Rucker joined with his Title VII claim, in which he was asking that the Board be ordered to reinstate him, claims for damages under 42 U.S.C. §§ 1981, 1983, and 1985. Of the damage claims, the district judge discussed only the one under section 1983, which he dismissed on the ground that the plaintiff’s burden of proof is heavier under that statute than under Title VII. Whether it is heavier or not, if this were the only justification for dismissal of the damage claims we would have to reverse because we do not know exactly what Rucker failed to prove. But in addition it is undisputed that the Board — the only defendant in this case — is a state agency. As such, it is immune from federal damages liability by virtue of the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Rucker’s section 1981 and section 1985 claims fail on the same ground. Second, the Board has cross-appealed from the district court’s refusal to apply the doctrine of collateral estoppel to prevent Rucker from relitigating the finding by a state unemployment compensation board that he had been discharged for cause. The district court found that the compensation board had not given Rucker a full and fair opportunity to develop the facts pertaining to his discharge. This conclusion, which the defendant does not seriously contest, justified the court’s refusal to apply collateral estoppel." } ]

[ { "docid": "2315638", "title": "", "text": "New Jersey Cemetery Board. Id. at 1307. The Third Circuit has never examined the immunity of an arm of the state judiciary Such as the Administrative Office of the Courts. However, the few courts that have examined agencies related to the state judiciary have consistently found these agencies are immune from suit under the Eleventh Amendment. For example, in Mattas v. Supreme Court of Pennsylvania, 576 F.Supp. 1178, 1182 (W.D.Pa.1983), the court held that the Office of Disciplinary Counsel was immune from suit under the Eleventh Amendment. In Hendrix v. Indiana State Public Defender System, 581 F.Supp. 31, 32 (N.D.Ind.1984), the court held that the Indiana Public Defender System was immune from suit under the Eleventh Amendment. Similarly, courts have held that state bar associations are immune from suit under the Eleventh Amendment. Lewis v. Louisiana State Bar Ass’n, 792 F.2d 493 (5th Cir. 1986); Lupert v. California State Bar, 761 F.2d 1325 (9th Cir.), cert. denied, 474 U.S. 916, 106 S.Ct. 241, 88 L.Ed.2d 251 (1985). In the instant case, the. Court finds that the Administrative Office of the Courts can cloak itself in the state’s sovereign immunity under the Eleventh Amendment. First, the Court finds that the Administrative Office of the Court is a state agency. N.J.S.A. 2A:12-1 specifically states: “There shall be a State office to be known as the Administrative Office of the Courts ...” (Emphasis added). Second, the Court finds that since the Administrative Office of the Court is a “State office” any damage award against the Administrative Office of the Courts would have to be paid out of the State’s treasury. Because this Court finds that plaintiffs claims for damages against the Administrative Office of the Courts are barred by the Eleventh Amendment, the Court will dismiss the Administrative Office of the Courts from this litigation. CONCLUSION For -the foregoing reasons, plaintiffs claims .against State of New Jersey, the Superior -Court of New Jersey, the Administrative Office of the Courts, Hon. Herbert S. Glickman, J.S.C., Honorable Katherine G. Hayden, J.S.C., Honorable Stephen Skillman, J.A.D. and Honorable Charles E. Villanueva, J.A.D, are dismissed for failure" }, { "docid": "16412287", "title": "", "text": "v. Bradley, 433 U.S. 267, 289-291, 97 S.Ct. 2749, 2761-2762, 53 L.Ed.2d 745 (1974); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Brunken v. Lance, 807 F.2d 1325, 1328-1330 (7th Cir.1986); Gary A. v. New Trier High School Dist. No. 203, 796 F.2d 940, 943 (7th Cir.1986); Adams v. State of Indiana, 795 F.2d 27, 28 (7th Cir.1986); Gleason v. Board of Educ. of City of Chicago, 792 F.2d 76, 79 (7th Cir.1986); Watkins v. Blinzinger, 789 F.2d 474 (7th Cir.1986), cert. denied sub nom, Diamond v. Blinzinger, — U.S. -, 107 S.Ct. 1976, 95 L.Ed.2d 816 (1987); Richardson v. Penfold, 650 F.Supp. 810, 811 (N.D.Ind.1986); Wellman v. Trustees of Purdue University, 581 F.Supp. 1228, 1229 (N.D.Ind.1984); Hendrix v. Indiana Public Defender System, 581 F.Supp. 31, 32 (N.D.Ind.1984). Although the express language of the Eleventh Amendment does not preclude suits brought in federal court against a state by citizens of that state, the Court has interpreted the language of the Eleventh Amendment as precluding such suits. Papasan, 106 S.Ct. at 2939; Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The courts have struggled with the delicate balance which exists between the Eleventh and Fourteenth Amendments. See, Papasan, 106 S.Ct. at 3145-3146; Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), reh’g denied, 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979); Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). The entire line of decisions by the Supreme Court of the United States since the adoption of the Eleventh Amendment illustrates that the Eleventh Amendment is an absolute bar to suits brought in federal court against states and their agencies without the state’s express or implied consent or express abrogation by Congress of the states’ Eleventh Amendment immunity. Papasan, 106 S.Ct. at 2939; Green, 474 U.S. at -, 106 S.Ct. at 425; Atascadero, 473 U.S. at 242-243, 105 S.Ct. at 3147-3148; Pennhurst, 465 U.S. at 99, 104 S.Ct. at 907; Cory, 457 U.S. at 90-91, 102 S.Ct. at 2328-2329;" }, { "docid": "19686717", "title": "", "text": "court. Plaintiff counters by arguing that Indiana law defines the defendant as a legal entity separate and distinct from the State of Indiana, and therefore any immunity afforded the State of Indiana ought not be extended to the defendant. The Eleventh Amendment to the Constitution of the United States declares: The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. Although the express language of this amendment does not grant immunity to states from suit in federal court when their own citizens are the plaintiffs, the Supreme Court has consistently held such actions to be precluded as well. Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Port of Seattle v. Oregon & W. Rwy. Co., 255 U.S. 56, 41 S.Ct. 237, 65 L.Ed. 500 (1921); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Thus, absent waiver, states and their instrumentalities may not be sued in a federal court directly in their own names, either for damages or for declaratory and injunctive relief. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Edelman v. Jordan, supra; Ford Motor Co. v. Dept. of Treasury of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Cannon v. University of Health Sciences/The Chicago Medical School, 710 F.2d 351 (7th Cir.1983); Burr v. Duckworth, 547 F.Supp. 192, 193 (N.D.Ind.1982). Indiana has not waived its immunity. Ind.Code § 34-4-16.-5-5(d). For purposes of ascertaining the relationship between the named defendant and the state itself, state law should receive primary consideration. Mount Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Nevertheless, the ultimate determination of whether the state is the real party in interest" }, { "docid": "14670052", "title": "", "text": "plaintiffs sued not only Hanna and two other state officials personally but also the State of Indiana and the Indiana Department of Revenue. This is impermissible. Cory v. White, 457 U.S. 85, 90-91, 102 S.Ct. 2325, 2328-29, 72 L.Ed.2d 694 (1982); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 114 (1978). The suit against the State and the Department must be dismissed, although the eleventh amendment does not preclude this action against the officials. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Another obstacle is the Tax Injunction Act, 28 U.S.C. § 1341, which provides that a district court “shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” Indiana, like many other states, requires those who dispute an assessment of taxes to pay the money and sue for a refund. Ind. Code § 6-6-2.1-1105. A suit seeking a refund is a “plain, speedy and efficient remedy” within the meaning of § 1341. Great Lakes Dredge & Dry Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943); Rosewell v. LaSalle National Bank, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981). The plaintiffs tried to avoid Great Lakes by arguing that they do not have enough money to pay the full assessments, making them unable to use Indiana’s remedy. The district court held that this does not matter and dismissed the complaint for failure to state a claim on which relief may be granted. 622 F.Supp. 1478 (N.D.Ind.1985). (No Indiana court has considered whether a person may pay part of the assessment and sue for its refund, thus obtaining a legal decision that would cover the whole sum. We do not do so either.) Although 28 East Jackson Enterprises, Inc. v. Cullerton, 523 F.2d 439, 441 & n. 4 (7th Cir.1975), cert. denied, 423 U.S. 1073, 96 S.Ct. 856, 47 L.Ed.2d 83 (1976), suggests that a state’s remedy is “plain, speedy and efficient”" }, { "docid": "16761153", "title": "", "text": "University and IUPUI to be agencies of the state); see also Parco v. Trs. of Ind. Univ., 453 F.3d 390, 394-95 (7th Cir.2006); Kashani v. Purdue Univ., 813 F.2d 843, 844 (7th Cir.1987). And, as explained below, the Board of Trustees of Indiana University is an agency of the state. Many courts have held that the governing bodies of their state universities enjoy the same immunity from suit as the universities themselves. See Richardson v. Southern Univ., 118 F.3d 450, 455 (5th Cir.1997) (“Southern [University] and its Board are considered an agency of the State of Louisiana”); Hall v. Hawaii, 791 F.2d 759, 761 (9th Cir.1986) (holding that the University of Hawaii and its board of regents “are clearly immune as agencies of the state”); Harden v. Adams, 760 F.2d 1158, 1164 (11th Cir.1985) (noting that “the Board of Trustees of a state university is entitled to sovereign immunity as an instrumentality of the state”); Cannon v. Univ. of Health Sciences/Chi. Med. Sch., 710 F.2d 351, 356 (7th Cir.1983) (Southern Illinois University and the Board of Trustees of the University of Illinois are state agencies with Eleventh Amendment immunity); Wellman v. Tr. of Purdue Univ., 581 F.Supp. 1228, n. 1 (N.D.Ind.1984) (“[F]or purposes of Eleventh Amendment immunity, no distinction can, should, or will be drawn between Purdue University and its Board of Trustees.”); see also Joseph v. Bd. of Regents of the Univ. of Wis. Sys., 432 F.3d 746, 748 (7th Cir.2005) (“The [Wisconsin Board of Regents] is an ‘arm of the state’ for Eleventh Amendment purposes.”). So it seems to follow that the Board of Trustees of Indiana University, like the university, is a state agency. And an examination of the factors relevant for determining whether an entity is an agency of the state leads to that exact conclusion. In deciding whether an entity is an agency of the state, the most important factor is “the extent of the entity’s financial autonomy from the state.” Kashani, 813 F.2d at 845. That inquiry is composed of five subparts: (1) the extent of state funding; (2) the state’s oversight and control" }, { "docid": "2315637", "title": "", "text": "The United States Supreme Court recently held that the focus of the inquiry in an Eleventh Amendment analysis is on whether the state’s coffers will be impacted. In Hess, Justice Ginsburg wrote for the majority: “Courts of Appeals have recognized the vulnerability of the State’s purse as the most salient factor in Eleventh Amendment determinations.” — U.S. at-, 115 S.Ct. at 404. In this case, the court held that the Port Authority Trans-Hudson Corp. was not protected by the State’s sovereign immunity. In Fitchik, the Third Circuit held that the New Jersey Transit Authority was not protected by the State’s sovereign immunity. The Court placed heavy emphasis on the fact that the Transit Authority had it own funds and insurance with which to pay any damage award. 873 F.2d at 659-63. Similarly, in Ramada Inns, the Court found that the New Jersey Cemetery Board was not immune because the lawsuit did not seek any funds from the State treasury. 598 F.2d at 1306. In this case, the plaintiff merely sought to void a contract with New Jersey Cemetery Board. Id. at 1307. The Third Circuit has never examined the immunity of an arm of the state judiciary Such as the Administrative Office of the Courts. However, the few courts that have examined agencies related to the state judiciary have consistently found these agencies are immune from suit under the Eleventh Amendment. For example, in Mattas v. Supreme Court of Pennsylvania, 576 F.Supp. 1178, 1182 (W.D.Pa.1983), the court held that the Office of Disciplinary Counsel was immune from suit under the Eleventh Amendment. In Hendrix v. Indiana State Public Defender System, 581 F.Supp. 31, 32 (N.D.Ind.1984), the court held that the Indiana Public Defender System was immune from suit under the Eleventh Amendment. Similarly, courts have held that state bar associations are immune from suit under the Eleventh Amendment. Lewis v. Louisiana State Bar Ass’n, 792 F.2d 493 (5th Cir. 1986); Lupert v. California State Bar, 761 F.2d 1325 (9th Cir.), cert. denied, 474 U.S. 916, 106 S.Ct. 241, 88 L.Ed.2d 251 (1985). In the instant case, the. Court finds that" }, { "docid": "1560160", "title": "", "text": "recovery from individuals under section 1981(a)); Parents for Quality Educ. with Integration, Inc., 662 F.Supp. 1475, 1482 (N.D.Ind.1987) (holding that relief available against state officials for violations of section 1981, 1983 and 1985 is strictly limited to prospective relief). By implication, the same is true for 1986 claims. Defendants argue that Plaintiff has not alleged sufficient facts to overcome the individual defendants’ qualified immunity as government officials and hold them liable in their personal capacities for civil rights violations. The doctrine of qualified immunity is an affirmative defense which protects public officials from personal liability when performing discretionary functions. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Officials are shielded by qualified immunity “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id.; accord Cohen v. San Bernardino Valley College, 92 F.3d 968, 973 (9th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1290, 137 L.Ed.2d 364 (1997) (liability is established when the Court determines that a reasonable person would have known that the action clearly violates a citizen’s right). The Court looks to whether “the contours of the right [are] sufficiently clear that a reasonable official would understand that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Deciding what a reasonable official would have known in a given situation to determine whether the affirmative defense of qualified immunity applies necessarily requires a factual determination. Factual determinations are not properly before the Court on a Motion for Judgment on the Pleadings. Accordingly, the Court will not rule on the issue of qualified immunity at this time; however, defendants are free to raise this issue in a motion for summary judgment at a later date. Defendants’ Motion is GRANTED as to the individual defendants in their official capacities for claims under sections 1981, 1983, 1985 and 1986 for retroactive relief (i.e., damages) only. The motion is DENIED as to the section" }, { "docid": "16412286", "title": "", "text": "line of cases which consistently hold that a state and its agencies shall be immune from suit in federal court unless the state consents to such suit or Congress expressly abrogates the states’ Eleventh Amendment immunity. Papasan v. Allain, — U.S. -, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986); Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985), reh’g denied, — U.S. -, 106 S.Ct. 900, 88 L.Ed.2d 933 (1986); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242-243, 105 S.Ct. 3142, 3147-3148, 87 L.Ed.2d 171 (1985); Kentucky v. Graham, 473 U.S. 159, 167 fn. 14, 105 S.Ct. 3099, 3106 fn. 14, 87 L.Ed.2d 114 (1985); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99-101, 104 S.Ct. 900, 907-908, 79 L.Ed.2d 67 (1984); Cory v. White, 457 U.S. 85, 90-91, 102 S.Ct. 2325, 2328-2329, 72 L.Ed.2d 694 (1982); Quern v. Jordan, 440 U.S. 332, 339-340, 99 S.Ct. 1139, 1144, 59 L.Ed.2d 358 (1979); Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Mittiken v. Bradley, 433 U.S. 267, 289-291, 97 S.Ct. 2749, 2761-2762, 53 L.Ed.2d 745 (1974); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Brunken v. Lance, 807 F.2d 1325, 1328-1330 (7th Cir.1986); Gary A. v. New Trier High School Dist. No. 203, 796 F.2d 940, 943 (7th Cir.1986); Adams v. State of Indiana, 795 F.2d 27, 28 (7th Cir.1986); Gleason v. Board of Educ. of City of Chicago, 792 F.2d 76, 79 (7th Cir.1986); Watkins v. Blinzinger, 789 F.2d 474 (7th Cir.1986), cert. denied sub nom, Diamond v. Blinzinger, — U.S. -, 107 S.Ct. 1976, 95 L.Ed.2d 816 (1987); Richardson v. Penfold, 650 F.Supp. 810, 811 (N.D.Ind.1986); Wellman v. Trustees of Purdue University, 581 F.Supp. 1228, 1229 (N.D.Ind.1984); Hendrix v. Indiana Public Defender System, 581 F.Supp. 31, 32 (N.D.Ind.1984). Although the express language of the Eleventh Amendment does not preclude suits brought in federal court against a state by citizens of that state, the Court has interpreted the language of the Eleventh Amendment as precluding such suits. Papasan, 106 S.Ct. at" }, { "docid": "4952750", "title": "", "text": "banc), cert. denied, 493 U.S. 850, 110 S.Ct. 148, 107 L.Ed.2d 107 (1989), the Court divided the factors from Urbano into three larger questions, no one of which is entirely dispositive: (1) Whether the money that would pay the judgment would come from the state (this includes three of the Urbano factors— whether payment will come from the state’s treasury, whether the agency has the money to satisfy the judgment, and whether the sovereign has immunized itself from responsibility for the agency’s debts); (2) The status of the agency under state law (this includes four factors—how state law treats the agency generally, whether the entity is separately incorporated, whether the agency can sue or be sued in its own right, and whether it is immune from state taxation); and (3)What degree of autonomy the agency has. Id. at 659. The Third Circuit has further instructed that “[a]lthough no single Urbano factor is dispositive, the most important is whether any judgment would be paid from the state treasury.” Id.; see also Bolden v. Southeastern Pa. Transp. Auth., 953 F.2d 807, 818 (3d Cir.1991) (en banc) (same), cert. denied, 504 U.S. 943, 112 S.Ct. 2281, 119 L.Ed.2d 206 (1992). Additionally, the Supreme Court has recently noted with approval that “Courts of Appeals have recognized the vulnerability of the State’s purse as the most salient factor in Eleventh Amendment determinations.” Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 48, 115 S.Ct. 394, 404, 130 L.Ed.2d 245 (1994). In Johnson, the Court held that the Administrative Office of the Courts was entitled to Eleventh Amendment immunity. Johnson, 869 F.Supp. at 297. The Court noted that “the few courts that have examined agencies relating to the state judiciary have consistently found these agencies are immune from suit under the Eleventh Amendment.” Id. (citing Mattas v. Supreme Court of Pennsylvania, 576 F.Supp. 1178, 1182 (W.D.Pa.1983) (Office of Disciplinary Counsel immune); Hendrix v. Indiana State Public Defender System, 581 F.Supp. 31, 32 (N.D.Ind.1984) (Indiana Public Defender System immune)). This Court concludes that the ACJC is also entitled to Eleventh Amendment immunity. The ACJC is a court" }, { "docid": "16412288", "title": "", "text": "2939; Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The courts have struggled with the delicate balance which exists between the Eleventh and Fourteenth Amendments. See, Papasan, 106 S.Ct. at 3145-3146; Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), reh’g denied, 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979); Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). The entire line of decisions by the Supreme Court of the United States since the adoption of the Eleventh Amendment illustrates that the Eleventh Amendment is an absolute bar to suits brought in federal court against states and their agencies without the state’s express or implied consent or express abrogation by Congress of the states’ Eleventh Amendment immunity. Papasan, 106 S.Ct. at 2939; Green, 474 U.S. at -, 106 S.Ct. at 425; Atascadero, 473 U.S. at 242-243, 105 S.Ct. at 3147-3148; Pennhurst, 465 U.S. at 99, 104 S.Ct. at 907; Cory, 457 U.S. at 90-91, 102 S.Ct. at 2328-2329; Brunken, 807 F.2d at 1329. The record before the court does not include any consent by the State of Indiana to permit this suit to proceed in federal court, nor are there facts which support an argument that the State of Indiana impliedly consented to be sued in Federal court. The next inquiry is whether Congress by statute has expressly abrogated the states’ Eleventh Amendment immunity. Congress by enacting specifically 42 U.S.C. §§ 1981, 1983 and 1985 did not abrogate the states’ Eleventh Amendment immunity. See, Quern, 440 U.S. at 339-346, 99 S.Ct. at 1144-1147; Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Rucker v. Higher Educational Aid Bd., 669 F.2d 1179, 1184 (7th Cir.1982); Davis v. Buffalo Psychiatric Center, 623 F.Supp. 19, 20 (W.D.N.Y.1985); Carter v. Illinois Dept. of Commerce and Community, 600 F.Supp. 583, 584 (N.D.Ill.1984); Diasernia v. State of New York, 582 F.Supp. 792, 801-803 (N.D.N.Y.1984); Jones v. Local 520 International Union of Operating Engineers, 524 F.Supp. 487, 490 (S.D.Ill.1981); Elliott v. Hinds, 573 F.Supp. 571, 574" }, { "docid": "19686718", "title": "", "text": "500 (1921); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Thus, absent waiver, states and their instrumentalities may not be sued in a federal court directly in their own names, either for damages or for declaratory and injunctive relief. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Edelman v. Jordan, supra; Ford Motor Co. v. Dept. of Treasury of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Cannon v. University of Health Sciences/The Chicago Medical School, 710 F.2d 351 (7th Cir.1983); Burr v. Duckworth, 547 F.Supp. 192, 193 (N.D.Ind.1982). Indiana has not waived its immunity. Ind.Code § 34-4-16.-5-5(d). For purposes of ascertaining the relationship between the named defendant and the state itself, state law should receive primary consideration. Mount Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Nevertheless, the ultimate determination of whether the state is the real party in interest raises a question of federal law. Miller-Davis Co. v. Illinois State Toll Highway Authority, 567 F.2d 323 (7th Cir.1977). [I]n deciding whether [an entity] ... is the alter ego of the State ... for Eleventh Amendment purposes, we confront a matter of federal, not state, law____ A state would have too much self-interest in extending sovereign immunity to as many of its agencies and corporate creations as possible to allow local laws to be determinant. But this is not to say that we must ignore a State Supreme Court’s interpretation of its own laws ____ especially when a state supreme court does not extend immunity but, rather, holds that an entity is not to be deemed to be the state for the purposes of sovereign immunity, we think the federal courts must pay careful attention to the state opinion. Id., at 330. In the definitional section of the Indiana Tort Claims Act, Ind.Code § 34-4-16.5- 1 et seq., “governmental entities” are defined as being either the state or a political subdivision thereof. Ind.Code § 34-4-16.5-" }, { "docid": "7711711", "title": "", "text": "are made. Then Haan Crafts makes slight variations in style and size to produce the final kit. III. Before a preliminary injunction may issue: A plaintiff seeking a preliminary injunction must demonstrate: (1) a threat of irreparable harm without an adequate remedy at law; (2) some likelihood of success on the merits of the claim; (3) a balance of relative harm weighing in favor of granting the injunction; and (4) compatability (sic) of the injunction and the public interest (citations omitted). Naked City, Inc. v. Aregood, 667 F.Supp. 1246, 1252 (N.D.Ind.1987); Chicago Board of Realtors v. City of Chicago, 819 F.2d 732 (7th Cir.1987); accord, BeerMart Inc. v. Stroh Brewery Co., 633 F.Supp. 1089, 1104 (N.D.Ind.1986), rev’d on other grounds, 804 F.2d 409 (7th Cir.1986); Lafayette Beverage Distributors v. Anheuser-Busch, 545 F.Supp. 1137, 1146 (N.D.Ind.1982); Eaton Corp. v. Appliance Valves Corp., 526 F.Supp. 1172 (N.D.Ind.1981), aff'd 688 F.2d 842 (7th Cir.1982). The Supreme Court of the United States in Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), held: The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits. Id. at 931, 95 S.Ct. at 2568. The decision to grant or deny preliminary injunctive relief is committed to the sound discretion of the district judge; there is no “right” to obtain a preliminary injunction. Naked City, 667 F.Supp. 1252. See also A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d 903, 905-06 (7th Cir.1986); Adams v. Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois, 801 F.2d 968, 971 (7th Cir.1986); Amoco Production Co. v. Village of Gambell, — U.S. -, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987). In considering a motion for preliminary injunction, the district court must evaluate the four required factors as listed above, must make factual determinations on the basis of a fair interpretation of the evidence before the court, and must draw legal conclusions in accord with a principled application" }, { "docid": "4952751", "title": "", "text": "Auth., 953 F.2d 807, 818 (3d Cir.1991) (en banc) (same), cert. denied, 504 U.S. 943, 112 S.Ct. 2281, 119 L.Ed.2d 206 (1992). Additionally, the Supreme Court has recently noted with approval that “Courts of Appeals have recognized the vulnerability of the State’s purse as the most salient factor in Eleventh Amendment determinations.” Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 48, 115 S.Ct. 394, 404, 130 L.Ed.2d 245 (1994). In Johnson, the Court held that the Administrative Office of the Courts was entitled to Eleventh Amendment immunity. Johnson, 869 F.Supp. at 297. The Court noted that “the few courts that have examined agencies relating to the state judiciary have consistently found these agencies are immune from suit under the Eleventh Amendment.” Id. (citing Mattas v. Supreme Court of Pennsylvania, 576 F.Supp. 1178, 1182 (W.D.Pa.1983) (Office of Disciplinary Counsel immune); Hendrix v. Indiana State Public Defender System, 581 F.Supp. 31, 32 (N.D.Ind.1984) (Indiana Public Defender System immune)). This Court concludes that the ACJC is also entitled to Eleventh Amendment immunity. The ACJC is a court committee established by court rule. Rule 2:15-1. Its function is to “implement N.J.S. 2A:1B-10, [currently 2B:2A-10] providing for suspension prior to hearing, and to assist otherwise in fulfilling the administrative responsibilities of the Court.” Id. Because the ACJC is a committee of the Supreme Court, the State of New Jersey would be responsible for any damage award against the ACJC. Therefore, the claims against the ACJC are also barred by the Eleventh Amendment. 2. The Individual Defendants The damage claims against former Chief Justice Wilentz and Judge Schreiber, former Chairperson of the ACJC, are also barred by the Eleventh Amendment. There are two types of suits against public officials: individual or personal-capacity suits and official capacity suits. “Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3104, 87 L.Ed.2d 114 (1985)" }, { "docid": "14195299", "title": "", "text": "of the United States Constitution prohibits actions in federal court for monetary relief against states, their agencies, and state officials acting within the scope of their official capacity. Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir.1981) (states); Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572-73, 50 L.Ed.2d 471 (1977) (state agencies); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (employees acting in their official capacity). This is true whether the plaintiff is a citizen of the defendant state or a citizen of another state. Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 110 S.Ct. 1868,109 L.Ed.2d 264 (1990). However, Eleventh Amendment immunity is not absolute. States may consent to suit in federal court. Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Alternatively, Congress may abrogate such immunity by legislation, if its intention is unmistakably clear in the language or legislative history of the statute. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). Therefore, unless the Pennsylvania Legislature has waived the Commonwealth’s Eleventh Amendment immunity, or if Congress expressly abrogated it in one of the statutes at issue, the court must dismiss the claims for monetary relief against all Commonwealth defendants. a. Count VI — Plaintiff’s Claim under 42 U.S.C. § 1985 Count VI of the complaint alleges a violation of 42 U.S.C. § 1985. Pennsylvania has not consented to be sued under this statute in federal court. It is also well settled that Congress did not intend to abrogate Eleventh Amendment immunity when it enacted § 1985. Quern v. Jordan, 440 U.S. 332, 339-346, 99 S.Ct. 1139, 1144-1148, 59 L.Ed.2d 358 (1979); Parents for Quality Education v. Fort Wayne Comm. Schools, 662 F.Supp. 1475 (N.D.Ind.1987). Therefore, plaintiffs claim for damages under § 1985 against each of the Commonwealth defendants is dismissed. b. Counts VII, X, and XI — Plaintiff’s § 1981 and § 1983 claims Counts VII and X of the complaint are based on 42 U.S.C. § 1981 and § 1983. Count" }, { "docid": "1560159", "title": "", "text": "clearly specify whether officials are sued personally, in their official capacity, or both. ‘The course of proceedings’ in such cases typically will indicate the nature of the liability sought to be imposed.” Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985) (citation omitted). Viewing the complaint in the light most favorable to Plaintiff, at this time the Court must assume that the plaintiff has alleged violations of her civil rights by the individual defendants in both capacities. However, as noted previously, under Ex Parte Young and its progeny, the remedies available against the individual defendants for section 1981, 1983, 1985 and 1986 claims depend on whether they are sued in their official or personal capacities. See Part III.A, supra. Plaintiff is limited to injunctive and declaratory relief against the individual defendants in their official .capacities, and damages against the individual defendants in their personal capacities. See, e.g., Sattar v. Unocal Corp., 829 F.Supp. 331, 334 (N.D.Cal.1993) (holding that the Civil Rights Act of 1991 excluded recovery from individuals under section 1981(a)); Parents for Quality Educ. with Integration, Inc., 662 F.Supp. 1475, 1482 (N.D.Ind.1987) (holding that relief available against state officials for violations of section 1981, 1983 and 1985 is strictly limited to prospective relief). By implication, the same is true for 1986 claims. Defendants argue that Plaintiff has not alleged sufficient facts to overcome the individual defendants’ qualified immunity as government officials and hold them liable in their personal capacities for civil rights violations. The doctrine of qualified immunity is an affirmative defense which protects public officials from personal liability when performing discretionary functions. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Officials are shielded by qualified immunity “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id.; accord Cohen v. San Bernardino Valley College, 92 F.3d 968, 973 (9th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1290, 137 L.Ed.2d 364 (1997) (liability is established when the Court determines" }, { "docid": "653975", "title": "", "text": "litigation unless there exists one of two well-established exceptions. See id.; Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). First, a state may by unequivocal language waive the protections of the eleventh amendment and thereby consent to suit in federal court. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). Second, Congress may by unequivocal language use its enforcement powers under the fourteenth amendment to abrogate the states’ eleventh amendment immunity. See id.; see also id. at 246, 105 S.Ct. at 3149 (“When Congress chooses to subject the States to federal jurisdiction, it must do so specifically.”) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984) [hereinafter Pennhurst II] (citing Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)). State agencies are treated the same as states. See Pugh, 438 U.S. at 781-82, 98 S.Ct. at 3057-58; Gleason v. Board of Educ., 792 F.2d 76, 79 (7th Cir.1986). Indeed, a state agency is the state for purposes of the eleventh amendment. Davidson v. Board of Govs., 920 F.2d 441, 442 (7th Cir.1990); see also Pennhurst II, 465 U.S. at 100, 104 S.Ct. at 907 (“It is clear, of course, that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the eleventh amendment.”). This is so, moreover, “regardless of the nature of the relief sought.” Id.; Gleason, 792 F.2d at 79. The only new issue, therefore, is whether a particular defendant is really a state agency, i.e., whether an entity is more like “ ‘an arm of the State’ ” than a county or city. Kashani v. Purdue Univ., 813 F.2d 843, 845 (7th Cir.) (quoting Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977)), cert. denied, 484 U.S. 846, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987); see also" }, { "docid": "14195300", "title": "", "text": "87 L.Ed.2d 171 (1985). Therefore, unless the Pennsylvania Legislature has waived the Commonwealth’s Eleventh Amendment immunity, or if Congress expressly abrogated it in one of the statutes at issue, the court must dismiss the claims for monetary relief against all Commonwealth defendants. a. Count VI — Plaintiff’s Claim under 42 U.S.C. § 1985 Count VI of the complaint alleges a violation of 42 U.S.C. § 1985. Pennsylvania has not consented to be sued under this statute in federal court. It is also well settled that Congress did not intend to abrogate Eleventh Amendment immunity when it enacted § 1985. Quern v. Jordan, 440 U.S. 332, 339-346, 99 S.Ct. 1139, 1144-1148, 59 L.Ed.2d 358 (1979); Parents for Quality Education v. Fort Wayne Comm. Schools, 662 F.Supp. 1475 (N.D.Ind.1987). Therefore, plaintiffs claim for damages under § 1985 against each of the Commonwealth defendants is dismissed. b. Counts VII, X, and XI — Plaintiff’s § 1981 and § 1983 claims Counts VII and X of the complaint are based on 42 U.S.C. § 1981 and § 1983. Count XI alleges a violation of the Fourteenth Amendment. The court presumes that this Count is also brought pursuant to § 1983. Pennsylvania has not consented to suit under either of these acts. Moreover, courts have consistently held that Congress did not intend to override state immunity when it passed § 1983. Williams v. State of Missouri, 973 F.2d 599 (8th Cir.1992) (Congress did not abrogate state immunity by enacting § 1983). Accordingly, plaintiffs claims under § 1983 for retroactive relief against the Commonwealth defendants are dismissed. The question of whether § 1981 abrogated Eleventh Amendment immunity requires a more in-depth analysis. The Supreme Court has not yet decided the issue, and neither have any of the federal circuit courts. The district courts have reached divergent results. In the greater number of decisions, the courts held that the language and legislative history of § 1981 does not express a clear intent to override state immunity. See e.g. Malone v. Schenk, 638 F.Supp. 423 (C.D.Ill.1985); Davis v. Buffalo Psychiatric Center, 623 F.Supp. 19 (S.D.N.Y.1985). On the other" }, { "docid": "1560142", "title": "", "text": "Eleventh Amendment with respect to section 1981. See, e.g., Freeman v. Michigan Dep’t of State, 808 F.2d 1174 (6th Cir.1987); Rucker v. Higher Educational Aids Bd., 669 F.2d 1179 (7th Cir.1982); Sessions v. Rusk State Hosp., 648 F.2d 1066 (5th Cir.1981). While other cases have found that “at least a colorable argument can be made that a section 1981 claim can lie against the State,” Simmons v. State of California, Dep’t of Industrial Relations, 740 F.Supp. 781, 788 (E.D.Cal.1990) (noting that sections 1981 and 1983 had been distinguished by Sethy v. Alameda County Water Dist., 545 F.2d 1157 (9th Cir.1976)), the Ninth Circuit is silent on this issue and the Court declines to hold that the Eleventh Amendment has been abrogated with respect to section 1981 claims. Therefore, the Court GRANTS Defendants’ motion as to the section 1981 claim and DISMISSES WITH PREJUDICE Plaintiffs section 1981 claim against SFUSD. 2) SECTION 1988 Section 1983 was originally enacted with sections 1985 and 1986 as part of the Civil Rights Act of 1871. It provides: Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. Eleventh Amendment immunity has not been abrogated with respect to section 1983 claims. Quern v. Jordan, 440 U.S. 332, 341-42, 99 S.Ct. 1139, 1145-46, 59 L.Ed.2d 358, (1979); Alabama v. Pugh, 438 U.S. 781-82, 98 S.Ct. 3057-58, 57 L.Ed.2d 1114 (1978). In addition, by its terms, section 1983 applies to “persons” acting under color of law’. In Monroe v. Pape, the Supreme Court held that section 1983 was not applicable to government entities. 365 U.S. 167, 190-92, 81 S.Ct. 473, 485-87, 5 L.Ed.2d 492 (1961). This holding was reiterated in Will v. Michigan Dep’t of" }, { "docid": "10570151", "title": "", "text": "Ind.Code Ann. § 34-4-16.5-1 et seq. (Burns 1981), and is therefore not immune from liability in a state court proceeding for damages resulting from the exercise of its proprietary or governmental functions. State v. Daley, 153 Ind.App. 330, 287 N.E.2d 552 (1972); State v. Turner, 153 Ind.App. 197, 286 N.E.2d 697 (1972). However, and notwithstanding the inroads made on the Eleventh Amendment by Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and its progeny, a direct action against a state and its department of corrections in a federal court under 42 U.S.C. § 1983 is barred by the Eleventh Amendment, absent consent to suit on the part of the state. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 56 L.Ed.2d 1114 (1978); see also, Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 39 L.Ed.2d 358 (1979); Rucker v. Higher Educational Aids Board, 669 F.2d 1179 (7th Cir. 1982) (state agency immune from damages liability in suit in federal court under 42 U.S.C. § 1983 by virtue of the Eleventh Amendment). The pertinent Indiana statute provides, in relevant part: Nothing in this chapter shall be construed as a waiver of the eleventh amendment to the Constitution of the United States, as consent by the State of Indiana or its employees to be sued in any federal court Ind.Code Ann. § 34-4-16.5-5(d) (Burns 1981). A careful review of the record reveals that the State of Indiana has not consented to suit in this action. Therefore, under the authority of Alabama v. Pugh, supra, this Court dismissed the State of Indiana as a party defendant on August 23, 1982, and plaintiff is likewise barred from proceeding against the State Department of Correction. To state a cause of action under § 1983, the conduct complained of must have been committed by a person acting under color of state law, and said conduct must have deprived the complainant of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420" }, { "docid": "16412289", "title": "", "text": "Brunken, 807 F.2d at 1329. The record before the court does not include any consent by the State of Indiana to permit this suit to proceed in federal court, nor are there facts which support an argument that the State of Indiana impliedly consented to be sued in Federal court. The next inquiry is whether Congress by statute has expressly abrogated the states’ Eleventh Amendment immunity. Congress by enacting specifically 42 U.S.C. §§ 1981, 1983 and 1985 did not abrogate the states’ Eleventh Amendment immunity. See, Quern, 440 U.S. at 339-346, 99 S.Ct. at 1144-1147; Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Rucker v. Higher Educational Aid Bd., 669 F.2d 1179, 1184 (7th Cir.1982); Davis v. Buffalo Psychiatric Center, 623 F.Supp. 19, 20 (W.D.N.Y.1985); Carter v. Illinois Dept. of Commerce and Community, 600 F.Supp. 583, 584 (N.D.Ill.1984); Diasernia v. State of New York, 582 F.Supp. 792, 801-803 (N.D.N.Y.1984); Jones v. Local 520 International Union of Operating Engineers, 524 F.Supp. 487, 490 (S.D.Ill.1981); Elliott v. Hinds, 573 F.Supp. 571, 574 (N.D.Ind.1983), rev’d on other grounds, 786 F.2d 298 (7th Cir.1986). Congress has, however, expressly abrogated the states’ Eleventh Amendment immunity for violations of Section 2000d et seq. of Title 42 of the United States Code which “occur in whole or in part after October 21, 1986.” 42 U.S.C.A. § 2000d-7 (Pocketpart 1987). Section 2000d-7 reads: (a) General provision (1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 794 of Title 29, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975 [42 U.S.C.A. § 6101 et seq.] title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance. (2) In a suit against a State for a violation of a statute referred to in paragraph (1), remedies (including remedies both at law and in equity) are available for such a violation to" } ]

[ { "docid": "23146955", "title": "", "text": "Procedure § 2692 at 88 (3d ed. 1998) (“The motion to set aside a default entry ... may be granted for ‘good cause shown,’ which gives a court greater freedom in granting relief than is available in the case of default judgments.”). B. We next address Mr. Cracco’s claim that the district court did not act properly when it deemed admitted Paragraph 33 of Vitran’s Rule 56.1 statement of material facts. Rule 56.1 requires that a party moving for summary judgment file and serve on the nonmoving party several documents, including “a statement of material facts as to which the moving party contends there is no genuine issue and that entitles the moving party to a judgment as a matter of law.” N.D. Ill. R. 56.1(a)(3). The Rule provides that the statement “shall consist of short numbered paragraphs.” N.D. Ill. R. 56.1(a). The opposing party is required to file “a response to each numbered paragraph in the moving party’s statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon.” N.D. Ill. R. 56.1(b)(3)(B). When a responding party’s statement fails to dispute the facts set forth in the moving party’s statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003). “Because of the important function local rules like Rule 56.1 serve in organizing the evidence and identifying disputed facts, we have consistently upheld the district court’s discretion to require strict compliance with those rules.” FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627, 633 (7th Cir.2005). See also Koszola, 385 F.3d at 1109; Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994) (collecting cases). Mr. Cracco submits that, because Paragraph 33 listed seven different alleged problems with his performance, it was impossible for him either to admit or to deny the paragraph. Paragraph 33 violated Rule 56.1(a), Mr. Cracco maintains, because it was not “short and concise.” See N.D. Ill. R. 56.1(a). He therefore contends that the district" } ]

[ { "docid": "23038488", "title": "", "text": "officers, still under the impression that Cady was claiming to be a federal officer, ran the name that appeared in Cady’s Bible in their squad car computer. Finding that a name was not enough to identify Cady, the officers pressed Cady for more information. Officer Margalus stated that if Cady did not comply, he could be arrested for obstructing a police officer. Officer Jacoby took out his handcuffs and told Cady to put his hands behind his back, but never actually ’cuffed Cady. Cady gave his full name and date of birth. The officers found that there were no outstanding warrants for his arrest. Cady’s briefcase was returned to him and he was sent off with information regarding the correct procedures for serving a summons on a Cook County Sheriffs officer. The entire incident lasted between twenty and thirty minutes. Cady filed his pro se complaint on December 20, 2002, including federal claims under 42 U.S.C. § 1983 alleging false imprisonment, false arrest, unlawful search and seizure, a Monell claim against Sheriff Sheahan in his official capacity and state law claims for negligent and intentional infliction of emotional distress. After nearly two years of discovery disputes and borderline frivolous motions, the parties made cross motions for summary judgment. The officers correctly pointed out that Cady had not complied with Northern District of Illinois Local Rule 56.1 in his statement of material facts, and the district court struck Cady’s statement and ordered him to submit a statement in compliance with Rule 56.1. Cady’s resubmitted statement of material facts also did not comply with Rule 56.1 as it failed to adequately cite the record and was filled with irrelevant information, legal arguments, and conjecture. In light of this failure to comply with the Local Rules, the district court exercised its discretion to use the officers’ statement of material facts in deciding whether, and to which party, to grant summary judgment. The district court granted summary judgment to the defendants on all claims. II. Analysis Cady presents three issues on appeal: (1) whether his Fourth Amendment rights were violated when the officers searched" }, { "docid": "16719632", "title": "", "text": "Kovach will proceed to trial. The state claim for assault and battery under Ohio law (Count Four) will also proceed to trial. IT IS SO ORDERED. .Except as otherwise noted, the factual summary is based upon the undisputed facts set forth in the parties’ statements of facts, the Plaintiff's Complaint, the deposition transcripts filed with the Court as part of the summary judgment motion briefing, and the information clearly visible in the video recording of the encounter at issue. Those facts which are contested and have some support through deposition testimony, affidavit, or other evidence are specifically addressed below and shall be construed in the light most favorable to the Plaintiff as required under the Summary Judgment standards. . Ms. Gill tested positive for cocaine, but claims that she had used cocaine two days earlier. She also admits to using the prescription drugs vicodin and xanax earlier in the day. . Ms. Gill told Officer Kovach that her name was \"Holly Hunter.” . Mr. Turner claims that Officer Kovach arrested Ms. Gill for falsification before she entered his vehicle. (53-3 at 4). Officer Kovach, however, stated that he arrested Ms. Gill only after she entered Mr. Turner's vehicle. (66-4 at 17). . The Ninth Circuit recently described the Taser X26 as follows: The X26 uses compressed nitrogen to propel a pair of \"probes” — aluminum darts tipped with stainless steel barbs connected to the X26 by insulated wires — toward the target at a rate of over 160 feet per second. Upon striking a person, the X26 delivers a 1200 volt, low ampere electrical charge through the wires and probes and into his muscles. The impact is as powerful as it is swift. The electrical impulse instantly overrides the victim's central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless. The tasered person also experiences an excruciating pain that radiates throughout the body. Bryan v. MacPherson, 608 F.3d 614, 620 (9th Cir.2010) (citations and footnotes omitted). . There is some dispute in the witnesses testimony as to whether Officer Kovach had told Ms. Gill she" }, { "docid": "9088720", "title": "", "text": "Defendant's Local Rule 56.1 statement of facts [124] and Plaintiff's Local Rule 56.1 statement of facts [149]. The parties disagree over many of the circumstances of this case and each filed extensive responses to the other's statement of facts, [152, 157], and statement of additional facts, [169, 171]. Simply denying a fact that has evidentiary support \"does not transform it into a disputed issue of fact sufficient to survive a motion for summary judgment.\" Roberts v. Advocate Health Care , 119 F.Supp.3d 852, 854 (N.D. Ill. 2015). Denials \"must cite specific evidentiary materials justifying the denial\" or be disregarded. Malec v. Sanford , 191 F.R.D. 581, 584 (N.D. Ill. 2000). Further, responses to the opposing party's statement of facts are not the place for \"purely argumentative details,\" id. , or legal conclusions, Cady v. Sheahan , 467 F.3d 1057, 1060 (7th Cir. 2006). District courts may disregard any improper denials. See id. ; Ammons v. Aramark Unif. Servs. , 368 F.3d 809, 817 (7th Cir. 2004). Plaintiff argues in its reply brief on its motion for summary judgment that many of Defendant's responses to Plaintiff's statement of facts should be disregarded. [168] at 7. But Plaintiff waived this argument by failing to raise it before the reply brief. See, e.g. , Padula v. Leimbach , 656 F.3d 595, 605 (7th Cir. 2011). Even so, this Court retains discretion to enforce Local Rule 56.1. See Ammons , 368 F.3d at 817. To the extent that Defendant's responses fail to cite specific evidence in the record, this Court will disregard them and deem Plaintiff's statement of fact to be admitted. See Malec , 191 F.R.D. at 583-84. The majority of responses that Plaintiff challenges sufficiently conform to Local Rule 56.1 to remain in the record. In most responses Defendant admits the statement in part and disputes the remainder either by citing to the record or re-citing the portion of the record relied upon by Plaintiff. In some responses, Defendant limited its reply because it objected to the form of Plaintiff's statement as containing improper legal argument or as unsupported by the evidence." }, { "docid": "8364561", "title": "", "text": "in federal court. Thus, Global is contractually barred from pursuing that claim until it has exhausted its contractual dispute-resolution obligations; and AT & T is entitled to summary judgment. CONCLUSION For the reasons explained above, Global’s Motion for Summary Judgment is denied. AT & T’s Motion for Summary Judgment on its PUA claim and AT & T’s Cross-Motion for Summary Judgment on Global’s counterclaim are granted. . AT & T initially presented its breach-of-ICA claims to this Court in a complaint filed on June 23, 2006; but the Court held that the Telecom Act requires that such claims first be presented to the ICC. See Ill. Bell Tel. Co. v. Global NAPs Ill., Inc., 06-cv-3431, slip op., 2007 WL 4531790 (N.D.Ill. Dec. 17, 2007). . The ICC’s order was affirmed in another memorandum opinion and order issued today. See Illinois Bell Tel. Co. v. Global NAPs, Inc., No. 09-cv-3113, 749 F.Supp.2d 804, 2010 WL 4340453 (N.D.Ill. Oct. 21, 2010) (Illinois Bell I). A more thorough discussion of the business relationship between AT & T and Global, the formation of the ICA, and the technology involved in the connection and operation of telecommunications networks is contained in that opinion. . Local Rule 56.1(a)(3) requires the party moving for summary judgment to provide \"a statement of material facts as to which the moving party contends there is no genuine issue.” Rule 56.1(b)(3) then requires the non-moving party to admit or deny each factual statement proffered by the moving party and to concisely designate any material facts that establish a genuine dispute for trial. See Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir.2005). A litigant's failure to dispute the facts set forth in its opponent’s statement in the manner required by Local Rule 56.1 results in those facts’ being deemed admitted for purposes of summary judgment. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003) (Smith). .“Incumbent local exchange carriers” are carriers that were providing local phone service when the Telecom Act was passed. They are comprised mostly of the \"Regional Bell Operating Companies” or “Baby Bells” that were created" }, { "docid": "16719631", "title": "", "text": "2744.03(A)(6)(a)-(c). Ms. Gill has failed to establish that either Chief Mandopoulos or Mr. Franklin acted outside the scope of his employment, maliciously, in bad faith, wantonly, or recklessly. Ms. Gill has merely asserted that they are liable because they ratified Officer Kovach’s actions. Consequently, Ms. Gill has failed to create a genuine issue of material fact. Chief Mandopoulos and Mr. Franklin are entitled to immunity and summary judgment on all state law claims against them. CONCLUSION For all of the reasons set forth above, the Summary Judgment motion of the City, Chief Mandopoulos, and Mr. Franklin (ECF # 54) is GRANTED; Officer Kovach’s motion for summary judgment (ECF #53) is GRANTED in part and DENIED in part; and, the Defendants’ motions for summary judgment on the spoliation of evidence claims (ECF # 83, 86) are GRANTED. Counts Two, Three, Five, and Seven of the First Amended Complaint are dismissed. As to Count One, the claim for unlawful seizure or arrest under 42 U.S.C. § 1983 is dismissed, but the claim for excessive force against Officer Kovach will proceed to trial. The state claim for assault and battery under Ohio law (Count Four) will also proceed to trial. IT IS SO ORDERED. .Except as otherwise noted, the factual summary is based upon the undisputed facts set forth in the parties’ statements of facts, the Plaintiff's Complaint, the deposition transcripts filed with the Court as part of the summary judgment motion briefing, and the information clearly visible in the video recording of the encounter at issue. Those facts which are contested and have some support through deposition testimony, affidavit, or other evidence are specifically addressed below and shall be construed in the light most favorable to the Plaintiff as required under the Summary Judgment standards. . Ms. Gill tested positive for cocaine, but claims that she had used cocaine two days earlier. She also admits to using the prescription drugs vicodin and xanax earlier in the day. . Ms. Gill told Officer Kovach that her name was \"Holly Hunter.” . Mr. Turner claims that Officer Kovach arrested Ms. Gill for falsification before" }, { "docid": "23467696", "title": "", "text": "(“AEDPA”) “imposes a highly deferential standard for evaluating state-court rulings[;] demands that state court decisions be given the benefit of the doubt”[;] and mandates “our full respect” for rulings of our “co-equal judiciary.” Clark v. Murphy, 317 F.3d 1038, 1043 (9th Cir.2003) (citations and internal quotation marks omitted). With those cautions in mind, I proceed to the first inquiry accompanying habeas review: “whether the state court erred at all.” Id. at 1044 (citation omitted). If the state court committed no error, our habeas inquiry ends. See id. Petitioner Ambrose Gill (“Gill”) was convicted in 1976 of one count of assault with a deadly weapon and three counts of assault by means of force likely to produce great bodily injury. During an interview with a probation officer, Gill admitted that he personally wielded a baseball bat during a Saturday-night fracas. Fast forward to 1997, with Gill facing a possible life sentence under California’s “Three Strikes Law.” Twenty-one years after the fact, at his “Three Strikes” sentencing hearing, Gill sought to challenge the statements attributed to him in the probation department report. The state trial court denied Gill’s request to refute the prior statement by testifying to the contrary at his “Three Strikes” sentencing hearing. The trial court denied Gill’s request in part because the court recognized that passage of time had lessened the likelihood of obtaining countervailing eyewitness testimony regarding the extent of Gill’s personal involvement in administering the assaultive blows. The trial court also considered the existence of binding state precedent limiting the prosecution to the record of conviction when establishing the existence of a prior conviction. The California Court of Appeal confirmed the trial court’s ruling. Citing People v. Bartow, 46 Cal.App.4th 1573, 1581, 54 Cal.Rptr.2d 482 (1996), the Court of Appeal declared that “neither the prosecution nor the defense may call live witnesses.” People v. Gill, Consolidated Case Nos. G022286, G022287, G022288, slip op. at 10 (Cal.Ct.App. March 9, 1999). The Court of Appeal noted that “a defendant’s statements in a post-conviction probation report do reliably reflect the conduct of which a defendant was convicted. The judge would" }, { "docid": "17419388", "title": "", "text": "at the time of the incident, and Yancick, painting a coil, had his back to Johnson. After this incident, Daniel called Yancick and Yancick said to him, “According to your handbooks, [Johnson] should have been fired almost a year before my injury____ Can you explain to me why you didn’t do your job and I did mine and I get crushed?” Daniel responded: “Well, that racism went both ways.” Duncan also went to speak to Yancick after the accident and said, “[Johnson] had it out for [you]” and that Yancick “took one for the team.” Yancick testified that he did not know what Johnson’s motivations were in dropping the coil, but believed it had to do with him being a racist. Other employees operating the control panel have accidentally dropped a steel coil from the table, but they have done so when removing the coil from the turnstile, not after the table has been moved back to the conveyor. One employee testified that he almost dropped a coil because he hit the wrong control and began retracting the horn when there was a coil on it. B. Order Yancick’s failure to respond to Hanna Steel’s statement of facts in its summary judgment motion was deemed an admission of those facts. CDIL-LR 7.1(D)(6). Because Yancick’s statement of disputed facts was not properly before the district court, the court could accept as true the undisputed facts set forth by Hanna Steel, but had to view those facts in the light most favorable to Yancick. Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir.2006). Hanna Steel still had to show that summary judgment was proper given the undisputed facts. See Wienco, Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 568 (7th Cir.1992) (“Where the evidentiary matter in support of the motion [for summary judgment] does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.”) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). As we have previously stated, “[e]mployment discrimination cases are" }, { "docid": "10841364", "title": "", "text": "maitre d' approximately two weeks after he became a captain in late February 2008. That paragraph is undisputed. But paragraph 83, reflecting Kurt’s testimony, asserts that he held the position from April 2008 through May 2009. (Compare Defs.' Rule 56.1 Stmt. ¶ 82 to id. ¶ 83.) . Defendants’ Counter Statement of Material Uncontroverted Facts disputes or denies the factual contentions in Plaintiffs’ Rule 56.1 Statement ¶¶ 2-14, except to the extent that those paragraphs indicate that the plaintiffs worked at Thalassa. Defendants, however, fail to provide any citation to admissible evidence in support of their denials. (See, e.g., Defs.’ Rule 56.1 Counter Statement ¶ 4) (“Admitted, that Mr. I Garcia was employed from approximately May 30, 2008 to September 21, 2008 for the purposes of this motion only, but denied that those were his start and end dates. (Second Amended Answer ¶ 9.) All remaining allegations are disputed.”) Defendants are not entitled to rely solely on their Answer at this stage of the litigation. See Parks Real Estate Purchasing Group v. St. Paul Marine and Fire Ins. Co., 472 F.3d 33, 41 (2d Cir.2006) (”[W]ith respect to a properly supported summary judgment motion, the party opposing summary judgment may not rest upon the mere allegations or denials of the adverse party’s pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.”). Instead, under Local Rule 56.1(d), ”[e]ach statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e).” Courts have \"broad discretion” in dealing with a party’s failure to comply with local court rules. Holtz v. Rockefeller Co., 258 F.3d 62, 72 (2d Cir.2001). Accordingly, where plaintiffs' assertions in their Rule 56.1 Statement are properly supported in the record, the Court admits them for purposes of this motion. . Although plaintiffs, citing to Matute’s testimony, indicate in paragraph 94 of their Response to Defendants' Rule 56.1 Statement that “Thalassa also" }, { "docid": "20034802", "title": "", "text": "the shipment at issue. Accordingly, this Court cannot determine as a matter of law whether UPS materially deviated from its alleged agreement with Philips in transporting the x-ray equipment from the parking lot into the hospital. V. UPS IS ENTITLED TO SUMMARY JUDGMENT ON AIG’S TORT CLAIM UPS has moved for summary judgment as to AIG’s tort claim, arguing that it is time-barred. AIG “does not oppose” UPS’s motion. (Pltf. Br. 1 n. 2) Accordingly, UPS’s motion for summary judgment as to the tort claim will be granted. CONCLUSION For the reasons stated above, Defendant UPS’s motion for summary judgment (Docket No. 17) is granted as to Plaintiffs tort claim but otherwise denied. Plaintiff AIG’s cross-motion for summary judgment (Docket No. 22) is denied. The Clerk of the Court is directed to terminate the motions. The parties are directed to consult and comply with Rule 9 of this Court’s Individual Rules with respect to submission of a joint pretrial order within 30 days of this decision. SO ORDERED. . The parties’ submissions do not indicate when Philips issued its RFQ, but they agree that the RFQ was issued sometime \"prior to 2004.” (Pltf. R. 56.1 Stat. ¶ 1; Def. R. 56.1 Stat. ¶ 2) . Unless otherwise noted, citations to the parties’ Rule 56.1 statements concern factual assertions that are admitted or are deemed admitted because they were not contradicted by citations to admissible evidence. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003) (\"If the opposing party ... fails to controvert a fact so set forth in the moving party’s Rule 56.1 statement, that fact will be deemed admitted.”). . The date of UPS’s response to Philips’ RFQ is unknown. . \"K-Van service” is part of a “specialized transportation group” at UPS that handles delivery of sensitive, expensive, and high-tech cargo to a specific building location. (Gill Decl., Ex. 3 (Welsh Tr.) at 67-69, 125-126) . Philips and Menlo — Emery’s successor — entered into a formal contract for transportation services in October 2004 (Pltf. R. 56.1 Stat. ¶ 16; Eagan Decl., Ex. F), but" }, { "docid": "16719584", "title": "", "text": "on administrative leave. Sergeant Cole viewed the mobile video recorder footage (the “video”) from Officer Kovach’s cruiser, met with Ms. Gill and other witnesses, and reviewed numerous statements, policies, and reports. The Ohio Bureau of Criminal Identification & Investigations (the “BCI”) also examined the memory chip from Officer Kovach’s Taser X26 and found that it had been activated seven times in approximately five minutes. Sergeant Cole submitted a report to Chief Mandopoulos, summarizing his findings and concluding that Officer Kovach violated numerous City policies. Chief Mandopoulos agreed with at least some of Sergeant Cole’s findings and suspended Officer Kovach for sixty days without pay. Although the City has a policy of photographing taser penetration sites after an arrest of a tasered suspect, no such photographs were taken after Ms. Gill’s arrest. Furthermore, the clothing that Ms. Gill wore when Officer Kovach tasered her went missing. On October 2, 2007, packages containing Ms. Gill’s belongings, including the clothes in question, were sent to the BCI. On April 16, 2008, Sergeant Michael Marret of the Warren Police Department picked up Ms. Gill’s clothes and other belongings from the BCI. On October 23, 2009, Ms. Gill deposed Lieutenant Joseph Marhulik (“Lieutenant Marhulik”) of the Warren Police Department. At Lieutenant Marhulik’s deposition, Ms. Gill learned that her clothing was missing and that the Warren Police Department could not account for its absence. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.CivP. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 451 (6th Cir.2004). If the movant succeeds, the burden then shifts to the nonmoving party to demonstrate the existence of a material dispute as provided in Rule 56(e)(2): When a motion" }, { "docid": "14516767", "title": "", "text": "518, 522 (7th Cir.2008). And in so viewing the record, we will examine whether there is a genuine issue of material fact that precludes judgment as a matter of law. See Fed.R.Civ.P. 56(C); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir.2006). If Ciomber cannot show that the district court erred with regard to his Rule 56.1 response, Mniszewski’s deposition testimony, or Cooperative Plus’s state-court pleadings, then the court’s grant of summary judgment must stand. The expert testimony, Rule 56.1 response, and purported admissions constituted the entirety of Ciomber’s proffer as to the element of causation, and if the district court properly excluded them then Ciomber had no other way to dispute the company’s evidence showing that he caused the explosion by rupturing his dryer’s LP-gas line. Ciom-ber would thus be unable to show that a disputed material fact exists regarding the essential element of causation, and we would have to conclude that the district court properly granted summary judgment for Cooperative Plus. See Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; Cady, 467 F.3d at 1061. A The district court’s exclusion of Ci-omber’s proffered evidence of causation We begin with Ciomber’s challenge to the district court’s decision to exclude Mniszewski’s deposition testimony. Under Rule 26(a)(2), a party that intends to rely upon an expert witness’s testimony is required to furnish by a date set by the district court a report containing, among other information, “a complete statement of all opinions” the retained expert will provide, “and the basis and reasons for them.” Fed.R.Civ.P. 26(a)(2)(B)(I), (a)(2)(C); see also Jenkins v. Bartlett, 487 F.3d 482, 487 (7th Cir.2007); Keach v. U.S. Trust Co., 419 F.3d 626, 639 (7th Cir.2005). Failure to comply with Rule 26(a)(2)’s requirements results in sanction: the offending party is not allowed to introduce the expert witness’s testimony as “evidence on a motion, at a hearing, or at a trial.” See Fed.R.Civ.P. 37(c)(1); Jenkins, 487 F.3d at 488. This sanction is “ ‘automatic and mandatory’” unless the offending party can establish “" }, { "docid": "8364562", "title": "", "text": "Global, the formation of the ICA, and the technology involved in the connection and operation of telecommunications networks is contained in that opinion. . Local Rule 56.1(a)(3) requires the party moving for summary judgment to provide \"a statement of material facts as to which the moving party contends there is no genuine issue.” Rule 56.1(b)(3) then requires the non-moving party to admit or deny each factual statement proffered by the moving party and to concisely designate any material facts that establish a genuine dispute for trial. See Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir.2005). A litigant's failure to dispute the facts set forth in its opponent’s statement in the manner required by Local Rule 56.1 results in those facts’ being deemed admitted for purposes of summary judgment. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003) (Smith). .“Incumbent local exchange carriers” are carriers that were providing local phone service when the Telecom Act was passed. They are comprised mostly of the \"Regional Bell Operating Companies” or “Baby Bells” that were created as a result of a consent decree settling the United States’ antitrust suit against AT & T in the early 1980s. . \"DS3s” are high-capacity circuits used to deliver traffic between the parties' networks. . AT & T responds to this factual assertion with a general denial that is unsupported by any evidence and by asserting that a stack of billing records and correspondence \"speaks for itself.\" See PL Resp. to Def. 56.1(b)(3)(C) ¶ 49. AT & T provides similar responses to other statements of fact. These failures to properly deny Global's factual assertions result in those facts' being deemed admitted for purposes of summary judgment. See Smith, 321 F.3d at 683. . “Telecommunications service,” as defined by Illinois law, \"includes access and interconnection arrangements and services.” 220 ILCS 5/13-203. . A copy of the ICA was attached as Exhibit 2 to the Declaration of Hans J. Germann in support of AT & T's Motion for Summary Judgment. . Notably, “Claim” is capitalized elsewhere in the ICA. See, e.g., ICA § 13.4 (providing release of" }, { "docid": "22475158", "title": "", "text": "any case relieved of the obligation to ferret through the record. CMI Capital Mkt. Inv., LLC v. Gonzalez-Toro, 520 F.3d 58, 63 n. 2, 2008 U.S.App. LEXIS 5682, at *6 n. 2 (1st Cir.2008). In upholding the exercise of courts’ discretion to apply deeming orders, our sister circuits have repeatedly stressed the vital function of rules such as Local Rule 56.1, reinforcing stern admonitions with rather colorful imagery. See, e.g., Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir.2007) (“Given the vital purpose that such rules serve, litigants ignore them at their peril.”); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003) (“[J]udges are not like pigs, hunting for truffles buried in briefs.”) (internal quotation marks omitted). We hold the rule in similarly high esteem. The proper course in applying Local Rule 56.1 at the summary judgment stage is for a district court to disregard or ignore evidence relied on by the respondent — but not cited in its response to the movant’s statement of undisputed facts— that yields facts contrary to those listed in the movant’s statement. That is, because the non-moving party has failed to comply with Local Rule 56.1 — the only permissible way for it to establish a genuine issue of material fact at that stage — the court has before it the functional analog of an unopposed motion for summary judgment. Application of the deeming order does not, however, automatically entitle the movant to summary judgment. This is so because under Rule 56, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)) (emphasis added). The movant therefore continues to shoulder the initial burden of production in demonstrating the absence of any genuine issue of material fact, and the" }, { "docid": "9088719", "title": "", "text": "John Robert Blakey, United States District Judge Plaintiff Uncommon, LLC sued Defendant Spigen, Inc. for using the trademarked term \"Capsule\" in the names of its cell phone cases, the same product that Plaintiff sells under the Capsule mark. Plaintiff brings claims for trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. §§ 1114, 1125(a), and unfair competition under Illinois common law. [1]. Defendant asserts counterclaims seeking cancellation of Plaintiff's Capsule mark for genericness and descriptiveness. [47]. Before this Court are Plaintiff's motion to strike Defendant's expert report [104]; Defendant's motion to strike Plaintiff's expert report [107]; Plaintiff's motion to strike an affidavit from Defendant's nontestifying expert [177]; Defendant's motion to withdraw answers to Plaintiff's requests for admission [180]; and the parties' cross-motions for summary judgment [123, 147]. As explained below, this Court denies the parties' motions to strike; partially grants and partially denies Defendant's motion to withdraw answers; and partially grants and partially denies the parties' motions for summary judgment. I. Background A. Disputed Facts The facts in this section come primarily from Defendant's Local Rule 56.1 statement of facts [124] and Plaintiff's Local Rule 56.1 statement of facts [149]. The parties disagree over many of the circumstances of this case and each filed extensive responses to the other's statement of facts, [152, 157], and statement of additional facts, [169, 171]. Simply denying a fact that has evidentiary support \"does not transform it into a disputed issue of fact sufficient to survive a motion for summary judgment.\" Roberts v. Advocate Health Care , 119 F.Supp.3d 852, 854 (N.D. Ill. 2015). Denials \"must cite specific evidentiary materials justifying the denial\" or be disregarded. Malec v. Sanford , 191 F.R.D. 581, 584 (N.D. Ill. 2000). Further, responses to the opposing party's statement of facts are not the place for \"purely argumentative details,\" id. , or legal conclusions, Cady v. Sheahan , 467 F.3d 1057, 1060 (7th Cir. 2006). District courts may disregard any improper denials. See id. ; Ammons v. Aramark Unif. Servs. , 368 F.3d 809, 817 (7th Cir. 2004). Plaintiff argues in its reply brief on its motion" }, { "docid": "17419389", "title": "", "text": "began retracting the horn when there was a coil on it. B. Order Yancick’s failure to respond to Hanna Steel’s statement of facts in its summary judgment motion was deemed an admission of those facts. CDIL-LR 7.1(D)(6). Because Yancick’s statement of disputed facts was not properly before the district court, the court could accept as true the undisputed facts set forth by Hanna Steel, but had to view those facts in the light most favorable to Yancick. Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir.2006). Hanna Steel still had to show that summary judgment was proper given the undisputed facts. See Wienco, Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 568 (7th Cir.1992) (“Where the evidentiary matter in support of the motion [for summary judgment] does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.”) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). As we have previously stated, “[e]mployment discrimination cases are extremely fact-intensive, and neither appellate courts nor district courts are ‘obliged in our adversary system to scour the record looking for factual disputes.....\" Greer v. Bd. of Educ. of City of Chi., Ill, 267 F.3d 723, 727 (7th Cir.2001) (citations omitted). The district court decided the motion for summary judgment on the record presented by Hanna Steel and both parties indicated that Judge McDade addressed the entire record before him when ruling on the merits of Hanna Steel’s motion. Accordingly, even though the district court did not need to search the record for disputed facts, we have reviewed the record submitted by Hanna Steel, and in particular, Yancick’s citations to that record. Based on that record, we find that summary judgment was properly granted in favor of Hanna Steel. Yancick brought this racially hostile work environment suit against Hanna Steel pursuant to 42 U.S.C. § 1981. He claims that Johnson was hostile to him because of his race and that he informed Duncan of the hostile work environment, but Duncan did not take any action" }, { "docid": "22979579", "title": "", "text": "asserted facts is inadequate if made without reference to specific supporting material. Edward E. Gillen Co. v. City of Lake Forest, 3 F.3d 192, 196 (7th Cir.1993). In short, “[jjudges are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991). Smith’s summary-judgment materials were woefully deficient in either responding adequately to the defendants’ statement or in setting forth additional facts with appropriate citations to the record. As such, Smith’s purportedly good intentions aside, the district court did not abuse its discretion in deeming admitted and only considering the defendants’ statement of material facts. Turning now to those facts, we learn the following: On the morning of January 23, 1998, Detective Lamz of the Algonquin Police Department received a telephone call from Karen S. Jurasek, an employee of the Algonquin Dental Associates, informing Lamz that she had just received a telephone call from a man identifying himself as being “from the Algonquin Police Department,” who was interested in selling her advertising space in a soon-to-be-published magazine. Jurasek said she agreed to make a $150 donation, and the caller was to come to the office later that day to collect. She told Lamz, however, that her employer had decided not to contribute after all and that she needed to cancel the office’s donation. In response to Jurasek’s comments, Lamz told her that Algonquin police officers do not solicit money from residents or businesses and that no Algonquin police officers should be collecting money in the name of the police department. Lamz directed Jurasek to stall the man should he come to collect the check and to contact the police immediately upon the caller’s arrival. The caller was, of course, Smith, who showed up at the dental office later that day to collect. Jurasek did as she was told, stalling Smith until the police could arrive. Lamz came himself and questioned Smith, Jurasek, and another dental employee, Victoria Carlson. Both Jurasek and Carlson told Lamz that Smith had declared on the phone and at the front window of the dentist’s office that he" }, { "docid": "23280986", "title": "", "text": "which are in dispute and, unless controverted by the opposing party’s statement of material facts, the material facts properly included in the moving party’s statement will be deemed to be admitted. Local Rule 19(b)(2); see generally Carreiro v. Rhodes Gill and Co., Ltd., 68 F.3d 1443, 1446 n. 3 (1st Cir.1995) (citing Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 930-32 (1st Cir.1983) (sanctioning such local rules that facilítate analysis of summary judgment motions)); Coastal Savings Bank v. Arkwright-Boston Manufacturers Mutual Ins. Co., 686 F.Supp. 17, 19-20 (D.Me.1988) (“Counsel’s compliance with the Local Rules is indispensable to the [cjourt’s effective management of its busy docket.”). We review the district court’s application of Local Rule 19 for abuse of discretion. See Ramsdell v. Bowles, 64 F.3d 5, 7 (1st Cir.1995) (acknowledging the district court’s “great leeway in the application and enforcement of its local rules”) (quoting United States v. Roberts, 978 F.2d 17, 20 (1st Cir.1992)), cert. denied, — U.S. -, 116 S.Ct. 913, 133 L.Ed.2d 844 (1996). Before we address CMM’s arguments, we review the pertinent facts. On March 13, 1995, WPOR filed its motion for summary judgment as well as its statement of undisputed material facts. On March 27, 1995, CMM filed its response and its statement of disputed material facts. On April 24, 1995, the district court informed the parties it could not determine from the summary judgment papers what the factual disputes were. Noting that the Local Rule 19 procedure “seems not to have worked here,” the parties were directed to “meet and confer to try and generate a list of what matters are disputed so that we can determine indeed what is going to be involved in this trial.” Transcript of 4/25/95 Conference in Chambers, pp. 3-4. The district court further noted that “in fairness ..., both sides are at fault here.” Id. at 5. On April 27,1995, counsel for both parties filed letters informing the district court of their respective versions regarding their attempts to reach agreement on the disputed and undisputed facts. WPOR enclosed a copy of its proposed joint statement, indicating that" }, { "docid": "22979578", "title": "", "text": "concern for the court’s convenience apparently waning, Smith did not provide the court with appropriate citations to any of it (nor did he ensure that he attached only admissible evidence). Here, he has failed in his obligation to support controverted or additional facts with citations to admissible evidence. Local Rule 56.1’s enforcement provision provides that when a responding party’s statement fails to controvert the facts as set forth in the moving party’s statement in the manner dictated by the rule, those facts shall be deemed admitted for purposes of the motion. N.D. ILL. L.R. 56.1(b). We have consistently held that a failure to respond by the nonmovant as mandated by the local rules results in an admission. See, e.g., Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 689 (7th Cir.2000). A district court is not required to “wade through improper denials and legal argument in search of a genuinely disputed fact.” Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir.2000). And a mere disagreement with the movant’s asserted facts is inadequate if made without reference to specific supporting material. Edward E. Gillen Co. v. City of Lake Forest, 3 F.3d 192, 196 (7th Cir.1993). In short, “[jjudges are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991). Smith’s summary-judgment materials were woefully deficient in either responding adequately to the defendants’ statement or in setting forth additional facts with appropriate citations to the record. As such, Smith’s purportedly good intentions aside, the district court did not abuse its discretion in deeming admitted and only considering the defendants’ statement of material facts. Turning now to those facts, we learn the following: On the morning of January 23, 1998, Detective Lamz of the Algonquin Police Department received a telephone call from Karen S. Jurasek, an employee of the Algonquin Dental Associates, informing Lamz that she had just received a telephone call from a man identifying himself as being “from the Algonquin Police Department,” who was interested in selling her advertising space in a soon-to-be-published magazine." }, { "docid": "23038489", "title": "", "text": "official capacity and state law claims for negligent and intentional infliction of emotional distress. After nearly two years of discovery disputes and borderline frivolous motions, the parties made cross motions for summary judgment. The officers correctly pointed out that Cady had not complied with Northern District of Illinois Local Rule 56.1 in his statement of material facts, and the district court struck Cady’s statement and ordered him to submit a statement in compliance with Rule 56.1. Cady’s resubmitted statement of material facts also did not comply with Rule 56.1 as it failed to adequately cite the record and was filled with irrelevant information, legal arguments, and conjecture. In light of this failure to comply with the Local Rules, the district court exercised its discretion to use the officers’ statement of material facts in deciding whether, and to which party, to grant summary judgment. The district court granted summary judgment to the defendants on all claims. II. Analysis Cady presents three issues on appeal: (1) whether his Fourth Amendment rights were violated when the officers searched the contents of his briefcase; (2) whether the officers had reasonable and articulable suspicion to initiate an investigatory stop; and (3) whether the officers exceeded the permissible scope and duration of the investigatory stop. A. Standard of Review We review a district court’s summary judgment ruling de novo, viewing the facts in the light most favorable to the non-moving party. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.2006). Summary judgment is appropriate when, based upon the record, “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “When the non-moving party fails 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,’ Rule 56(c) mandates entry of summary judgment against that party because ‘a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.’ ” Massey, 457 F.3d at 716 (quoting Celotex Corp." }, { "docid": "17762656", "title": "", "text": "soundness of the [superintendent’s decision].” Davenport, 30 F.3d at 944; see Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991). Incorrect thinking on the superintendent’s part does not prove the school district’s explanation is a pretext. Kralman v. Illinois Dep’t of Veterans’ Affairs, 23 F.3d 150, 157 (7th Cir.1994). We are not permitted to second guess the superintendent or to correct an unwise decision if the superintendent gave an honest, nondiscriminatory explanation for his behavior. Elrod, 939 F.2d at 1470. After a careful review of the summary judgment record, we conclude Gill failed to show the school district’s explanation was unworthy of belief. There is nothing in the record to dispute the school district’s evidence that there was a factual basis for the assistant principal’s report that Gill used a disparaging racial name and the superintendent honestly believed the report was a proper basis for his decision to discharge Gill as a substitute teacher. Contrary to Gill’s contention, the mere fact the superintendent knew Gill’s race before making his decision is proof of neither pretext nor discriminatory intent. Indeed, in her deposition the only reason Gill gave for her belief the superintendent acted in a discriminatory way toward her was his failure to meet with her before making his decision; otherwise, Gill conceded the superintendent never engaged in conduct that caused her to believe he would discriminate against her because of her race. We thus conclude the district court properly granted summary judgment for the school district. Finally, we decline Gill’s motion to supplement the record. See Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir.1993) (enlargement of record is rare exception to general rule that court of appeals may consider only the record made before the district court). Accordingly, we affirm. HEANEY, Senior Circuit Judge, dissenting. I agree that Margaret Gill established a prima facie ease and that the school district responded with a facially legitimate, nondiscriminatory explanation for her discharge. The critical question that remains is what motivated the superintendent to remove Gill from the list of acceptable substitute teachers. Did" } ]

[ { "docid": "7662518", "title": "", "text": "ADA, i.e., a “disabled” person under Toyota. Plaintiff has not produced any evidence that his diabetes impeded his activities outside of the workplace in any way. For example, plaintiff has not produced evidence that he cannot perform the type of manual tasks of central importance to daily life, such as brush his teeth, wash his face, fix breakfast, do laundry, and the like. More importantly, in plaintiffs daily activities questionnaire that he completed for his Social Security disability application, plaintiff unequivocally states that his diabetes did not impede his activities outside the workplace. (See Ex. 4 to Stedman Dep. at 1-4.) Plaintiff stated that he cares for his personal needs, including grooming, bathing, and dressing. (See id. at 1.) He shops for his personal needs, vacuums, washes dishes, mops, and cares for the dog. (See id. at 2-3.) As plaintiff admits that his diabetic condition does not inhibit his major life activities outside his job, the only possible major life activity as to which plaintiff could claim a substantial limitation is the life activity of working. In analyzing such a disability claim, the Supreme Court has instructed that “the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege that they are unable to work in a broad class of jobs.” Sutton v. United Air Lines, 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Although. the Sutton plaintiffs alleged that their employer regarded their impairment as preventing them from working as global airline pilots, the Court held that disqualification from working in a single job does not support the claim that a plaintiff has a substantially limiting impairment. See id. at 493, 119 S.Ct. 2139. In order to prevail, therefore, plaintiff must prove that his diabetes precluded him from a broad range of jobs. See id. at 491, 119 S.Ct. 2139; see also Pritchard v. Southern Co. Serv., 92 F.3d 1130, 1133 (11th Cir.1996) (stating “nor does the inability to perform a single, particular job ... constitute a substantial limitation in the major life activity of working”). He has come forward with no such proof. Indeed," } ]

[ { "docid": "7662516", "title": "", "text": "an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). In his brief, plaintiff argues that he is disabled under the first and third prong: he has a physical impairment that substantially limits one or more of his major life activities and/or defendant regarded him as having a disability. Prior to January 2002, case law made satisfaction of a prima facie case under the ADA, particularly meeting the “disability” prong, relatively simple. On January 8, 2002, however, the Supreme Court significantly altered the definition of “substantially limits a major life activity.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). In Toyota the Supreme Court reversed the Sixth Circuit decision that found a former employee disabled because she could no longer perform all her manual tasks at work due to carpal tunnel syn-drom. See Toyota, 534 U.S. at --, 122 S.Ct. at 689. Curtailing previous case law defining “major life activities,” the Court held that “to be substantially limiting in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” Id. 122 S.Ct. at 691. Specifically, the Court stated that “[w]hen addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job.” Id. at 693. As a result, this decision creates additional obstacles for many plaintiffs in disability eases, particularly those alleging discrimination in the workplace. Under Toyota it appears that courts now have greater discretion in determining what is a major life activity and what interference with that activity is substantial enough to constitute a disability. Plaintiff cannot make out a 'prima facie case under the ADA because he has not produced evidence that satisfies the burden he bears of showing that he is in the class of persons protected by the" }, { "docid": "19153974", "title": "", "text": "physical or mental impairment. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 690, 151 L.Ed.2d 615 (2002). Merely having an impairment, however, does not make one disabled for purposes of the law. Id. Rather, plaintiffs “also need to demonstrate that the impairment limits a major life activity.” Id. The regulations promulgated pursuant to the Rehabilitation Act provide a list of examples of “major life activities,” including: caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 45 C.F.R. § 84.3(j)(2)(ii). To prove disability, a plaintiff “must further show that the limitation on the major life activity is ‘substantial].’ ” Toyota Motor Mfg., Ky., Inc., 534 U.S. at 184, 122 S.Ct. at 690 (quoting 42 U.S.C. § 12102(A)) (alteration in original). The word “substantial” in the phrase “substantially limits” “clearly precludes impairments that interfere in only a minor way with performance of [a major life activity] from qualifying as disabilities.” Id. at 691; see also Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 565, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999) (explaining that a “mere difference” does not amount to a “significant restriction]” on a major life activity). Moreover, the phrase “major life activities” refers only “to those activities that are of central importance to daily life.” Toyota Motor Mfg., Ky., Inc., 122 S.Ct. at 691. As the Supreme Court recently explained in Toyota Motor Manufacturing, Kentucky, Inc., congressional intent dictates that “these terms need to be interpreted strictly to create a demanding standard for qualifying as disabled.” Id. at 691. Therefore, to be substantially limited in a major life activity: an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long-term. Id. (citing 29 C.F.R. § 1630.2Cj)(2)(ii)-(iii)). Courts must determine whether an individual has a disability on a case-by-case basis. See id. at 692; Sutton v. United Air Lines, Inc., 527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Thus, [i]t is insufficient for individuals" }, { "docid": "15014178", "title": "", "text": "In analyzing such a disability claim, the Supreme Court has instructed that “the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege that they are unable to work in a broad class of jobs.” Sutton v. United Air Lines, 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Although the Sutton plaintiffs alleged that their employer regarded their impairment as preventing them from working as global airline pilots, the Court held that disqualification from working in a single job does not support the claim that a plaintiff has a substantially limiting impairment. See id. at 493,119 S.Ct. 2139. In order to prevail, therefore, plaintiff must prove that his diabetes precluded him from a broad range of jobs. See id. at 491, 119 S.Ct. 2139; see also Pritchard v. Southern Co. Serv., 92 F.3d 1130, 1133 (11th Cir.1996) (stating “nor does the inability to perform a single, particu lar job ... constitute a substantial limitation in the major life activity of working”). Id. The term “substantial” also suggests , a limitation that is “considerable” or “specified to a large degree.” See Sutton, 527 U.S. at 491, 119 S.Ct. 2139 (citing Webster’s Third New International Dictionary 2280 (1976) and 17 Oxford English Dictionary 66-67 (2d ed.1989)). In making this determination, courts look to: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or expected long-term impact of the impairment. See Gordon v. E.L. Hamm & Assoc., Inc., 100 F.3d 907, 911 (11th Cir.1996). The court finds that in this case, plaintiff has not met his burden of demonstrating that his diabetes substantially limits him from performing a class or broad range of jobs. Plaintiff testified that his diabetes never affected his work and that he is currently seeking another sales position as a car salesman. Thus his limitations do not prevent him from working any salesperson’s job, just the salesperson’s job- at a large volume warehouse-style environment where the employee must be on his feet for long periods of time. Home Depot offered plaintiff a job" }, { "docid": "12865457", "title": "", "text": "general population can perform the same major life activity. 29 C.F.R. § 1630.2(j)(l). The Supreme Court has noted that “ ‘substantially’ in the phrase ‘substantially limits’ suggests ‘considerable’ or ‘to a large degree.’ The word ‘substantial’ thus clearly precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities.” Toyota, 122 S.Ct. at 691 (internal citations omitted). Major life activities “refer to those activities that are of central importance to daily life.” Id. at 691. Plaintiff alleges that his physical impairment substantially limited his ability to perform two major life activities — walking and working. Scarborough’s claim that his impairment substantially limited his ability to walk is unavailing. Plaintiff cites in his Opposition at page 46 to only one piece of eviden-tiary support for this claim — the Administrative Law Judge’s recitation of plaintiffs testimony at the hearing that he “had a hard time getting out of bed many mornings.” (Pl.Ex. 1, at 3.) No reasonable fact-finder could infer from this vague piece of evidence that Scarborough was substantially limited in his ability to walk. Although his medical documentation does consistently note that plaintiff felt pain in his legs, there is no basis to argue that his ability to walk was substantially limited. The Court’s analysis of whether plaintiff was substantially limited in his ability to work is guided by the Supreme Court’s recent decisions in Toyota and Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), In Sutton, the Supreme Court held that “[w]hen the major life activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” Id. at 491, 119 S.Ct. 2139. The Court pointed to the EEOC regulations that refine this standard by identifying several factors for courts to consider in determining whether an individual is substantially limited in the major life activity of work ing. These factors include (1) the nature and severity of the impairment; (2) the duration or expected" }, { "docid": "12865459", "title": "", "text": "duration of the impairment; (3) the long-term or expected long-term impact of the impairment; (4) the geographical area to which the individual has reasonable access; (5) the job from which the individual was disqualified because of the impairment, and the number of similar jobs from which the individual is also disqualified; and (6) the number of other types of jobs from which the individual is disqualified because of the impairment. 29 C.F.R. §§ 1630.2(j)(2)-(3). In Toyota, the Court affirmed Sutton while addressing respondent’s claim that she was substantially limited in her ability to perform manual tasks. The Court held: When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job. Otherwise, Sutton’s restriction on claims of disability based on a substantial limitation in working will be rendered meaningless because an inability to perform a specific job always can be recast as an inability to perform a “class” of tasks associated with that specific job. Toyota, 122 S.Ct. at 693. The Court found that “occupation-specific tasks may have only limited relevance to the manual task inquiry”' — and, by extension, to an analysis of whether an individual is substantially limited in the major life activity of working. Id. See Duncan, 240 F.3d at 1115 (“[T]o establish substantial limitation of working activity under the ADA, a plaintiff must allege and prove that in his particular circumstances, taking into account the appropriate factors, his impairment prevents him from performing a ‘substantial class’ or ‘broad range’ of jobs otherwise available to him.”). Applying this framework, it must be concluded that plaintiff has failed to demonstrate that he was substantially limited in his ability to work. Although plaintiff unquestionably exhibited a number of physical symptoms that his doctors ultimately attributed to CFS, he has not produced any evidence to show that this impairment substantially limited his ability to work in a broad class of jobs. The conflicting reports of" }, { "docid": "12865458", "title": "", "text": "was substantially limited in his ability to walk. Although his medical documentation does consistently note that plaintiff felt pain in his legs, there is no basis to argue that his ability to walk was substantially limited. The Court’s analysis of whether plaintiff was substantially limited in his ability to work is guided by the Supreme Court’s recent decisions in Toyota and Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), In Sutton, the Supreme Court held that “[w]hen the major life activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” Id. at 491, 119 S.Ct. 2139. The Court pointed to the EEOC regulations that refine this standard by identifying several factors for courts to consider in determining whether an individual is substantially limited in the major life activity of work ing. These factors include (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; (3) the long-term or expected long-term impact of the impairment; (4) the geographical area to which the individual has reasonable access; (5) the job from which the individual was disqualified because of the impairment, and the number of similar jobs from which the individual is also disqualified; and (6) the number of other types of jobs from which the individual is disqualified because of the impairment. 29 C.F.R. §§ 1630.2(j)(2)-(3). In Toyota, the Court affirmed Sutton while addressing respondent’s claim that she was substantially limited in her ability to perform manual tasks. The Court held: When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job. Otherwise, Sutton’s restriction on claims of disability based on a substantial limitation in working will be rendered meaningless because an inability to perform a specific job always can be" }, { "docid": "23149402", "title": "", "text": "12102(2)(C); see also Sutton v. Lader, 185 F.3d 1203, 1208 (11th Cir.1999). Carruthers argues that BSA “perceived her as not performing a wide range of jobs.” Appellant’s Br. at 10. Although Carruthers offers no further description of the specific disability that BSA allegedly perceived her to have, we construe her argument to be that BSA perceived her hand condition as substantially limiting her in the major life activities of working and of performing manual tasks. The regulations implementing the ADA enumerate several functions that qualify as “major life activities,” included among which is the activity of “working.” 29 C.F.R. § 1630.2Q) (2003). In order for Carruthers to establish that BSA regarded her as substantially limited in the major life activity of working, she must show that BSA perceived her as “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.” 29 C.F.R. § 1630.2(j)(3)(i); see also Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 2151, 144 L.Ed.2d 450 (1999) (“When the major life activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.”). “The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i). Thus, an impairment must preclude — or at least be perceived to preclude — an individual from more than one type of job, even if the job foreclosed is the individual’s job of choice. See Sutton, 527 U.S. at 492, 119 S.Ct. at 2151. With regard to Carruthers’s perceived impairment in performing manual tasks, the Supreme Court recently took up the question of when such an impairment constitutes an ADA disability. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). In rejecting plaintiffs argument that her carpal tunnel syndrome limited her ability to perform a broad" }, { "docid": "22280747", "title": "", "text": "‘substantially limits’ suggests ‘considerable’ or ‘to a large degree,’ ” and “thus clearly precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities.”) (alteration in original). Moreover, the mere fact that an impairment requires an individual to perform a task differently from the average person does not mean that she is disabled within the meaning of the ADA; rather, there must be a significant restriction. See Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 564-65, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999) (rejecting lower court’s “transforming ‘significant restriction’ into ‘difference,’ ” thereby “undercutting] the fundamental statutory requirement that only impairments causing ‘substantial limitations]’ in individuals’ ability to perform major life activities constitute disabilities”) (second alteration in original). The inquiry is not just on the effect an impairment has on tasks associated with a specific job, but it must focus primarily on whether the claimant is “unable to perform the variety of tasks central to most people’s daily lives.” Toyota, 534 U.S. at 200, 122 S.Ct. 681. Finally, we must consider the effect of the measures that the individual employs to mitigate or correct the impairment. See Albertson’s, Inc., 527 U.S. at 565, 119 S.Ct. 2162; Sutton v. United Air Lines, Inc., 527 U.S. 471, 482, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). A plaintiff is also disabled within the meaning of the ADA if he is “regarded” by his employer as having a physical or mental impairment that substantially limits a major life activity. 42 U.S.C. § 12102(2). A “regarded as” claim “‘turns on the employer’s perception of the employee’ and is therefore ‘a question of intent, not whether the employee has a disability.’ ” Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 646 (2d Cir.1998) (quoting Francis v. City of Meriden, 129 F.3d 281, 284 (2d Cir.1997)). It is not enough that the employer perceive the employee as “somehow disabled”; the employer must regard the employee as “disabled within the meaning of the ADA,” i.e., having an impairment that substantially limits a major life activity. Id. at 646 (emphasis omitted);" }, { "docid": "15014175", "title": "", "text": "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 484, 119 S.Ct. 2139. “An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one ..., in which symptoms vary widely from person to person.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 185, 122 S.Ct. 681, 685, 151 L.Ed.2d 615 (2002). In Toyota Motor Mfg., Kentucky, Inc. v. Williams: the Supreme Court reversed the Sixth Circuit decision that found a former employee disabled because she could no longer perform all her manual tasks at work due to carpal tunnel syndrome. See Toyota, 534 U.S. at 192-93, 122 S.Ct. at 689. Curtailing previous case law defining “major life activities,” the Court held that “to be substantially limiting in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” Id 122 S.Ct. at 691. Specifically, the Court stated that “[w]hen addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable" }, { "docid": "10837482", "title": "", "text": "471, 482, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Mr. Rakity concedes he does not currently have an actual physical or mental impairment which substantially limits one of his major life activities under § 12102(2)(A). Rather, Mr. Rakity maintains he has a record of such an impairment under subsection (B) and King Soopers regarded him as having such an impairment under subsection (C). 42 U.S.C. § 12102(2)(B) & (C). A. Record of Substantial Limitation Mr. Rakity argues past medical and employment documents showing impairments to his hands, wrists, shoulders, and back demonstrate a record of substantial limitation in performing manual tasks, lifting, reaching, and working. To have a qualifying record of impairment, “a plaintiff must have a history of, or have been misclassified as having, an impairment that has substantially limited a major life activity.” Sorensen, 194 F.3d at 1087. The Equal Employment Opportunity Commission has explained “[t]he intent of this provision, in part, is to ensure that people are not discriminated against because of a history of disability.” 29 C.F.R. pt. 1630, App. § 1630.2(k). The most favorable interpretation of Mr. Rakity’s medical and employment records does not suggest he is substantially impaired in performing manual tasks. All of Mr. Rakity’s arguments on appeal address his ability to fulfill various grocery store clerk duties. For instance, Mr. Rakity points to a 1993 doctor’s letter questioning Mr. Rakity’s ability to continuously stack small grocery items on store shelves. However, “[w]hen addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with [his] specific job.” Toyota Motor Mfg., 122 S.Ct. at 693. “[H]ousehold chores, bathing, and brushing one’s teeth are among the types of manual tasks of central importance to people’s daily lives and should [be] part of the assessment of whether [a plaintiff is] substantially limited in performing manual tasks.” Id. The manual activity of continuously shelving groceries is not centrally important to most people’s daily lives. Mr." }, { "docid": "22423679", "title": "", "text": "sued her former employer for violation of the ADA, alleging that it failed to reasonably accommodate her disability. The district court granted summary judgment to the employer, finding that plaintiff was not disabled. The Sixth Circuit reversed and reinstated her claim, holding that she was disabled in the ability to perform manual tasks, because her ailments prevented her from doing tasks associated with certain types of jobs, including her previous position on an automobile manufacturing assembly line. The Supreme Court overturned the decision of the Sixth Circuit, however, holding that the court of appeals had erred by focusing on the manual tasks associated with plaintiffs job. Id. at 200, 122 S.Ct. 681. The Court elaborated: ‘When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people’s daily lives, not' whether the claimant is unable to perform the tasks associated with her specific job.” Id. at 200-01, 122 S.Ct. 681. It went on to note that “the manual tasks unique to any particular job are not necessarily important parts of most people’s lives.” Id. at 201, 122 S.Ct. 681. The manual tasks of central impor tance to most people’s daily lives were described as things like doing household chores, bathing, and brushing teeth, and those activities, according to the Court, should have been considered in determining whether the claimant was “disabled” under the Acts, by reason of being- substantially limited in her ability to perform manual tasks. Id. at 201-02, 122 S.Ct. 681. Our court interpreted and applied Toyota in the context of a different major life activity in EEOC v. United Parcel Service, Inc., 306 F.3d 794 (9th Cir.2002). In that case, employees of UPS with monocular vision who wanted to drive package vans but were not permitted to do so under the company’s vision protocols brought a discrimination action under the ADA. At issue was the major life activity of “seeing,” and specifically the question of whether the plaintiffs’ impairment constituted a substantial limitation on seeing such that they were" }, { "docid": "17076009", "title": "", "text": "with corroborating medical records, was enough to allow a jury to conclude that plaintiff was substantially limited in his ability to walk). In arguing otherwise, Pathfinder fundamentally misunderstands the requirements of the ADA. Pathfinder contends that Carter was not substantially limited because he could perform the essential functions of his job; that is, he could work full 24-hour shifts. Of course, Pathfinder elsewhere contends that Carter was totally disabled at the time that he was fired, which directly contradicts its argument that Carter did not then have a substantially limiting condition. But setting aside this contradiction, Pathfinder’s argument fails because there is “no support in the Act, [the Supreme Court’s] opinions, or the regulations for the ... idea that the question of whether an impairment constitutes a disability is to be answered only by analyzing the effect of the impairment in the workplace.” See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 201, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). “[T]he manual tasks unique to any particular job are not necessarily important parts of most people’s lives.” Id. In any event, the record suggests that Carter was impaired in his ability to perform his job at Pathfinder. Although he could work the full 10 to 12 days at a job site while completing full 24-hour shifts, he needed time off to rest in between working such job assignments. This is perfectly consistent with a finding that his impairments substantially limited his ability to perform manual tasks and take care of himself. Finally, we emphasize that we are not holding that Carter has produced enough evidence for a jury to conclude that he was substantially limited in the major life activity of “working”—which requires, “at a minimum, that [he] allege [that he was] unable to work in a broad class of jobs” at the time that he was fired. Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), superseded by statute, ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553. Instead, we adhere to our practice of considering “the" }, { "docid": "22936525", "title": "", "text": "See Taylor v. Phoenixville Sch. Dist, 184 F.3d 296, 306 (3d Cir.1999). A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). A “disability” is defined as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). Although the statute does not define the term “major life activities,” the EEOC has issued regulations explaining that major life activities are “functions such as caring for oneself, per forming manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i). Tice argues that he is disabled within the meaning of the ADA because: (1) his back injury constitutes an impairment that “substantially limits” the “major life activity” of working; (2) he has a “record” of having such an impairment; and (3) CATA regarded him as having such an impairment. We address these arguments in turn. 1. Tice’s Back Injury In Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), the Supreme Court interpreted the phrase “substantially limits” as it is used in the Americans with Disabilities Act. A plaintiff attempting to establish disability on the basis of “substantial limitation” in the major life activity of “working” must, at minimum, allege that he or she is “unable to work in a broad class of jobs.” Id. at 491, 119 S.Ct. 2139. The Court explained that “[t]o be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job choice.” Id. at 492, 119 S.Ct. 2139; see also Deane v. Pocono Med. Ctr., 142 F.3d 138, 144 n. 7 (3d Cir.1998) (en banc). Tice has not alleged any limitation in the “major life activity” of working caused by his back" }, { "docid": "15014176", "title": "", "text": "484, 119 S.Ct. 2139. “An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one ..., in which symptoms vary widely from person to person.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 185, 122 S.Ct. 681, 685, 151 L.Ed.2d 615 (2002). In Toyota Motor Mfg., Kentucky, Inc. v. Williams: the Supreme Court reversed the Sixth Circuit decision that found a former employee disabled because she could no longer perform all her manual tasks at work due to carpal tunnel syndrome. See Toyota, 534 U.S. at 192-93, 122 S.Ct. at 689. Curtailing previous case law defining “major life activities,” the Court held that “to be substantially limiting in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” Id 122 S.Ct. at 691. Specifically, the Court stated that “[w]hen addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people’s daily lives, [FN18 The Court noted that testimony that the Toyota plaintiff could brush her teeth, wash her face, bathe, tend her garden, fix breakfast, do laundry, and pick up around the house was the very type of evidence the Sixth Circuit should have focused on, as these seemed the type of manual tasks of central importance to people’s daily lives. See Toyota, 122 S.Ct. at 693.] not whether the claimant is unable to perform the tasks associated with her specific job.” Id. at 693. As a result, this decision creates additional obstacles for many plaintiffs in disability cases, particularly those alleging discrimination in the workplace. Under Toyota it appears that courts now have greater discretion in determining what is a major life activity and what interference with that activity is substantial enough to constitute a disability. Stedman v. Bizmart, Inc., 219 F.Supp.2d 1212, 1220-1221 (N.D.Ala.2002). The only major life activity plaintiff claims is substantially limited in this ease is the life activity of working." }, { "docid": "23558688", "title": "", "text": "phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 2151, 144 L.Ed.2d 450 (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.” Id. at 482-83, 119 S.Ct. at 2146-47. Moreover, the regulations provide that, “except in rare circumstances, obesity is not considered a disabling impairment.” 29 C.F.R. Pt. 1630, App., § 1630.2(j). “[T]he ADA requires those claiming the Act’s protection ... to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience ... is substantial.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 691-92, 151 L.Ed.2d 615 (2002) (quotations omitted). The Supreme Court has held that “to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long term.” Id. at 198, 122 S.Ct. at 691 (emphasis added) (citation omitted). The district court concluded that Greenberg had not provided evidence that he is disabled under these definitions. We agree. Greenberg has not shown that he has an impairment that substantially limits him in one or more major life activities. First, a person is “substantially limited” in a “major life activity” if he cannot care for himself;' on this point, the evidence indicates that Greenberg bathed and dressed himself and could perform household chores. Also, a person qualifies as substantially limited in a major life activity if he is “at a minimum ... unable to work in a broad class of jobs.” Sutton v. United Air Lines, Inc., 527 U.S. at 491, 119 S.Ct. at 2151. Greenberg presented no evidence to support such a claim. In sum, Greenberg presented no evidence that he has a record of impairment" }, { "docid": "23558687", "title": "", "text": "v. Smith, 231 F.3d 1301, 1305 (11th Cir.2000) (citation omitted). This standard derives from the ADA’s language, stating that “no [employer] shall discriminate against a qualified individual with a disability because of the disability of such an individual.” 42 USC 12112(a). Claims raised under the Florida law are analyzed under the same framework as the ADA. Chanda v. Engelhard/ICC, 234 F.3d 1219, 1221 (11th Cir.2000). For the first element of an ADA claim, a plaintiff qualifies as disabled under the ADA if he has “(A) a physical or mental impairment that substantially limits one or more of the major life activities ...; (B) a record of such an impairment; or (C) [is] regarded as having such an impairment.” 42 U.S.C. § 12102(2). Major life activities are further defined by the Equal Employment Opportunity Commission (“EEOC”) as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(f); Cash, 231 F.3d at 1305. “When the major life activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 2151, 144 L.Ed.2d 450 (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.” Id. at 482-83, 119 S.Ct. at 2146-47. Moreover, the regulations provide that, “except in rare circumstances, obesity is not considered a disabling impairment.” 29 C.F.R. Pt. 1630, App., § 1630.2(j). “[T]he ADA requires those claiming the Act’s protection ... to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience ... is substantial.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 691-92, 151 L.Ed.2d 615 (2002) (quotations omitted). The Supreme Court has held that “to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or" }, { "docid": "7662519", "title": "", "text": "working. In analyzing such a disability claim, the Supreme Court has instructed that “the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege that they are unable to work in a broad class of jobs.” Sutton v. United Air Lines, 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Although. the Sutton plaintiffs alleged that their employer regarded their impairment as preventing them from working as global airline pilots, the Court held that disqualification from working in a single job does not support the claim that a plaintiff has a substantially limiting impairment. See id. at 493, 119 S.Ct. 2139. In order to prevail, therefore, plaintiff must prove that his diabetes precluded him from a broad range of jobs. See id. at 491, 119 S.Ct. 2139; see also Pritchard v. Southern Co. Serv., 92 F.3d 1130, 1133 (11th Cir.1996) (stating “nor does the inability to perform a single, particular job ... constitute a substantial limitation in the major life activity of working”). He has come forward with no such proof. Indeed, by his own testimony, plaintiff cannot meet this standard. Plaintiff testified that he believed he could perform the job of receiving clerk. (See Stedman Dep. Vol. II at 181-83.) This testimony indicates that plaintiffs impairment only precluded him from performing his particular job as an industrial engineer. Under the Supreme Court’s holding in Sutton, this evidence is insufficient to invoke the protection of the ADA. The fact that plaintiff attempts to bring his claim within the ADA’s ambit by arguing that he satisfies the “regarded as” prong does not alter the preceding analysis. The court recognizes that “[a]s with actual disabilities, a perceived impairment must be believed to substantially limit a major life activity of an individual.” Hilbum v. Murata Electronics NA, Inc., 181 F.3d 1220, 1230 (11th Cir.1999) (citing Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1327 (11th Cir.1998)). At best, plaintiffs only evidence that defendant regarded him as substantially impaired in major life activity pertains to the life activity of working. To show that he was regarded as substantially limited in his" }, { "docid": "15014177", "title": "", "text": "to perform the variety of tasks central to most people’s daily lives, [FN18 The Court noted that testimony that the Toyota plaintiff could brush her teeth, wash her face, bathe, tend her garden, fix breakfast, do laundry, and pick up around the house was the very type of evidence the Sixth Circuit should have focused on, as these seemed the type of manual tasks of central importance to people’s daily lives. See Toyota, 122 S.Ct. at 693.] not whether the claimant is unable to perform the tasks associated with her specific job.” Id. at 693. As a result, this decision creates additional obstacles for many plaintiffs in disability cases, particularly those alleging discrimination in the workplace. Under Toyota it appears that courts now have greater discretion in determining what is a major life activity and what interference with that activity is substantial enough to constitute a disability. Stedman v. Bizmart, Inc., 219 F.Supp.2d 1212, 1220-1221 (N.D.Ala.2002). The only major life activity plaintiff claims is substantially limited in this ease is the life activity of working. In analyzing such a disability claim, the Supreme Court has instructed that “the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege that they are unable to work in a broad class of jobs.” Sutton v. United Air Lines, 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Although the Sutton plaintiffs alleged that their employer regarded their impairment as preventing them from working as global airline pilots, the Court held that disqualification from working in a single job does not support the claim that a plaintiff has a substantially limiting impairment. See id. at 493,119 S.Ct. 2139. In order to prevail, therefore, plaintiff must prove that his diabetes precluded him from a broad range of jobs. See id. at 491, 119 S.Ct. 2139; see also Pritchard v. Southern Co. Serv., 92 F.3d 1130, 1133 (11th Cir.1996) (stating “nor does the inability to perform a single, particu lar job ... constitute a substantial limitation in the major life activity of working”). Id. The term “substantial” also suggests , a limitation that" }, { "docid": "23149403", "title": "", "text": "527 U.S. 471, 491, 119 S.Ct. 2139, 2151, 144 L.Ed.2d 450 (1999) (“When the major life activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.”). “The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i). Thus, an impairment must preclude — or at least be perceived to preclude — an individual from more than one type of job, even if the job foreclosed is the individual’s job of choice. See Sutton, 527 U.S. at 492, 119 S.Ct. at 2151. With regard to Carruthers’s perceived impairment in performing manual tasks, the Supreme Court recently took up the question of when such an impairment constitutes an ADA disability. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). In rejecting plaintiffs argument that her carpal tunnel syndrome limited her ability to perform a broad class of manual tasks and thus impaired a major life activity, the Toyota Motor Court emphasized that both statutory language and congressional intent require that the ADA’s “disability” definition be “interpreted strictly to create a demanding standard for qualifying as disabled.” Id. at 197, 122 S.Ct. at 691. The Court highlighted several prerequisites in order for an impairment to the ability to perform manual tasks to qualify as a disability. Specifically, the Court held that the critical inquiry is whether the impairment (a) prevents or severely restricts the performance of (b) activities “of central importance to most people’s daily lives.” Id. at 198, 122 S.Ct. at 691. The Court further held that the impairment must have a permanent or long-term impact. Id.; see also 29 C.F.R. § 1630.2(j) (2) (iii). We conclude that no reasonable jury could find that Carruthers’s evidence established that BSA perceived her impairment as one that substantially limited the major life activities of working or performing manual tasks. Carruthers herself admitted at trial that BSA’s knowledge of her condition was limited" }, { "docid": "3530730", "title": "", "text": "§ 12102(2). According to the ADA regulations, a major life activity means “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2®. “When the major life activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs” or “ ‘a broad range of jobs in various classes.’” Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (quoting 29 C.F.R. § 1630.2(j)(3)(i)). “The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i). 1. Moorer’s disability status under the “regarded as” definition The first issue is whether the district court correctly found Moorer to be disabled within the meaning of the ADA. The district court found that Baptist “regarded” Moorer as having a physical or mental impairment — alcoholism — that substantially limited his ability to work, and, therefore, Moorer satisfied the third definition of disability set forth at 42 U.S.C. § 12102(2). According to the Supreme Court: There are two apparent ways in which individuals may fall within this statutory definition: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially- limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misper-ceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting. Sutton, 527 U.S. at 489, 119 S.Ct. 2139. The district court reached its conclusion by breaking its analysis into two parts: first, whether Baptist regarded Moorer as having a physical or mental impairment, and second, whether Baptist mistakenly regarded that impairment as substantially limiting the major" } ]

[ { "docid": "22047347", "title": "", "text": "agent of an attorney for the purpose of obtaining legal advice from that attorney? United States v. Kovel, supra, 296 F.2d at 922 (“What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.’’) (emphasis in original). We think not. Rather, instead of competent evidence, Reynolds makes blanket assertions seeking to invoke an attorney-client privilege. She has not given the name of any attorney for whom she served as agent. A letter from a von Bulow attorney merely acknowledges that she attended legal strategy and planning sessions for the criminal case, but does not explicate any professional reasons for her attendance. As for the subpoenaed documents themselves, Reynolds informed the district court in her letter of August 6 of her personal reasons for commissioning the investigative reports. With regard to the notes taken while she watched the criminal trial on television, Reynolds testified in her deposition that she had “stopped working as a paralegal when the trial started.” She therefore cannot claim now that she was acting as the agent of an attorney in taking the notes. Finally, we decline Reynolds’ invitation to extend the attorney-client privilege to a manuscript which she intends to publish. To accept such an invitation would serve poorly the teaching that “[t]he investigation of truth and the enforcement of testimonial duty demand the restriction, not the expansion of [the] privilege[ ].” 8 Wigmore, Evidence § 2192, at 73 (McNaughton rev. 1961) (quoted in United States v. Kovel, supra, 296 F.2d at 921). IV. To summarize: We affirm the orders of the district court which directed Reynolds to produce the subpoenaed documents under an order of confidentiality and which held her in civil contempt of court for failing to do so. We hold that an individual claiming the journalist’s privilege must demonstrate, through competent evidence, the intent to use material sought to disseminate information to the public and that such intent existed at the inception of the newsgathering process. Reynolds having failed to sustain that burden, we refuse to accord the journalist’s privilege" } ]

[ { "docid": "18233467", "title": "", "text": "In re Behar, 779 F.Supp. 273, 274 (S.D.N.Y.1991) (citing von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir.), cert. denied, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987)); see also, e.g., In re Fitch, Inc., 330 F.3d at 108-09. The New York State Shield Law provides an absolute privilege to reporters for confidential information, and a qualified one—using the same test as that applied under federal common law—for non-confidential information. See N.Y. Civ. Rights Law § 79-h(b), (c); see, e.g., In re Fitch, Inc., 330 F.3d at 108-09; In re Application to Quash Subpoena to Nat'l Broad. Co., 79 F.3d 346, 351 (2d Cir.1996). . The qualified reporter's privilege also encompasses a journalist’s unpublished resource material. See, e.g., von Bulow v. von Bulow, 811 F.2d at 143; Pugh v. Avis Rent A Car Sys., Inc., 1997 WL 669876 at *5; Stephens v. American Home Assurance Co., 91 Civ. 2898, 1995 WL 230333 at *4-6 (S.D.N.Y. Apr. 17, 1995); SEC v. Seahawk Deep Ocean Tech., Inc., 166 F.R.D. 268, 270 (D.Conn.1996) (\"'unpublished resource material likewise may be protected'\" by the qualified journalist’s privilege); In re Pan Am Corp., 161 B.R. 577, 583 (S.D.N.Y.1993). . \"[T]he individual claiming the privilege must demonstrate, through competent evidence, the intent to use material—sought, gathered or received—to disseminate information to the public and that such intent existed at the inception of the newsgathering process. This requires an intent-based factual inquiry to be made by the district court.” von Bulow v. von Bulow, 811 F.2d at 144. Someone not ordinarily considered a journalist, but who is engaged in \"activities traditionally associated with the gathering and dissemination of news\" can be protected by the privilege even though not a part of the \"institutionalized press.” Id. at 142. . In denying defendants’ motion to dismiss, Judge Marrero recognized that \"[p]laintiffs will be able to recover only if they can ultimately prove causation—after they have had a reasonable opportunity to gather evidence through discovery and their proof has been put to the test, by means of a dispositive motion or at trial.\" 337 F.Supp.2d at 508." }, { "docid": "18064548", "title": "", "text": "the August 24, 2005 conference the City disclosed that subway searches were conducted every day during the period July 21 through August 21, 2005. (Tr. at 3-4, 14.) On August 25, 2005, the parties submitted letters reiterating arguments made at the August 24, 2005 conference. For the reasons set forth below, the Discovery Order is suspended and no further documents need be disclosed by Defendants pending the hearing on September 7, 2005 at 9:30 a.m. II. Standard of Review When considering objections to a discovery order issued by a magistrate judge, the Court “shall modify or set aside any portion of the magistrate judge’s order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a); see 28 U.S.C. § 636(b)(1)(A); Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990); United States v. Premises Known as 281 Syosset Woodbury Road, 862 F.Supp. 847, 851 (E.D.N.Y.1994), affd, 71 F.3d 1067 (2d Cir.1995). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). “The purpose of [the law enforcement] privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.” In re Department of Investigation of City of New York, 856 F.2d 481, 484 (2d Cir.1988). The privilege is “qualified, however, and must be balanced against the litigant’s substantial need for information____” Otterson v. National R.R. Passenger Corp., 228 F.R.D. 205, 207 (S.D.N.Y.2005). “To sustain the invocation of such a privilege ..., [Defendants] must make a clear showing of harm if the information is disclosed.” Galvin v. Hoblock, No. 00 Civ. 6058, 2003 WL 22208370, at *3 (S.D.N.Y. Sept.24, 2003). III. Analysis Based upon the parties’ submissions and the Court’s review of the" }, { "docid": "5615385", "title": "", "text": "and Recommendation Denying Defendants’ Unopposed Motion to Seal the Settlement Agreement (“Def. Obj.”).) On September 23, 2011, 2011 WL 7004196, the magistrate judge issued a Supplemental Report and Recommendation (“Supp. R & R”), recommending Defendants’ motion to seal the settlement agreement partially also be denied. No objections were filed to the Supp. R & R. For the reasons set forth below, the R & R and the Supp. R & R are adopted in their entirety. Accordingly, the FLSA settlement agreement is approved as fair and reasonable and Defendants’ motions to file the agreement under seal, either in whole or in part, are denied. I. Standard of Review Where a party objects to a R & R, a district judge must make a de novo determination with respect to those portions of the R & R to which the party objects. See Fed. R. Civ. P. 72(b); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997). Portions of the R & R to which the parties have not objected are reviewed for clear error. See Orellana v. World Courier, Inc., 2010 WL 3861013, at *2 (E.D.N.Y. Sept. 28, 2010). The district court may then “accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b); see also 28 U.S.C. § 636(b)(1). II. Discussion A. Presumption of Public Access Defendants, while largely ignoring the body of case law recognizing that the common law right of public access attaches to judicially supervised FLSA settlements, object to the magistrate judge’s conclusion that the FLSA settlement agreement should not be filed under seal, either in whole or in part. (Def. Obj. at 2 (citing R & R at 5).) Defendants’ objection is merit-less. Defendants, in their objection, failed to address or distinguish the abundant case law issued by district courts of this circuit which: 1) set forth the policy considerations animating the presumption of public access that attaches to FLSA settlements; 2) indicate the substantial showing a party must meet in overcoming this presumption; and 3) have overwhelmingly" }, { "docid": "19825512", "title": "", "text": "was writing about the criminal trial of Claus von Bulow. In affirming the district court’s civil contempt order, the Second Circuit outlined the principles to be used in determining whether, in the first instance, one can claim the journalist’s privilege. The Court held that: [T]he individual claiming the privilege must demonstrate, through competent evidence, the intent to use material—sought, gathered or received—to disseminate information to the public and that such intent existed at the inception of the news-gathering process. This requires an intent-based factual inquiry to be made by the district court. The intended manner of dissemination may be by newspaper, magazine, book, public or private broadcast medium, handbill or the like, for “[t]he press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. Griffin, 303 U.S. 444, 452 [58 S.Ct. 666, 669, 82 L.Ed. 949] (1938). von Bulow by Auersperg v. von Bulow, supra, 811 F.2d at 144. Thus, whether a person is a professional journalist is irrelevant. The question is how the person asserting the privilege intended to use the information gathered. Thus, “[a]l-though prior experience as a professional journalist may be persuasive evidence of present intent to gather for the purpose of dissemination, it is not the sine qua non. The burden indeed may be sustained by one who is a novice in the field.” Id. at 144; see also Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir.1977) (non-salaried news reporter entitled to assert privilege); Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78, 85 (E.D.N.Y.1975) (chief executive officer of technical medical newsletter entitled to assert journalist’s privilege against disclosure of source of article recommending withdrawal of drug from market). Applying these principles to this case, it is clear that Harris is entitled to assert the privilege. Harris’ affidavit establishes that he interviewed Dean Albert in order to gather information for an article for the law school newspaper about Plaintiffs case. It is not disputed that the law school newspaper is a “publication which affords a vehicle of information and opinion” within the meaning of Lovell" }, { "docid": "4846753", "title": "", "text": "ORDER MARK H. COHEN, District Judge. . This action is before the Court on the Non-Final Report and Recommendation of Magistrate Judge Russell G. Vineyard [Doc. 54] (“R & R”), recommending that Defendant’s motion for summary judgment [Doc. 35] be granted in part and denied in part. The Order for Service of the R & R provided notice that, in accordance with 28 U.S.C. § 636(b)(1), each party was authorized to file objections within 14 days of the receipt of that Order. Plaintiff Tony Smith (“Plaintiff’) brings this action against defendant E-Back-groundChecks.com, Inc. (“Defendant” or “BGC”), alleging BGC violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq. [Doc. 1]. BGC seeks summary judgment, [Doc. 35], which Plaintiff opposes. [Doc. 47]. Within the required time period, BGC filed objections to the R & R. BGC agreed with portions of the Magistrate Judge’s R & R but objected to other portions. [Doc. 56] (“Def.’s Obj.”). Plaintiff filed a reply to Defendant’s objections. [Doc. 58] (“Pl.’s Reply”). In reviewing a Magistrate Judge’s R & R, the district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). “Parties filing objections to a magistrate’s report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court.” United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir.2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir.1988)) (internal quotation marks omitted). Absent objection, the district court judge “may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge,” 28 U.S.C. § 636(b)(1)(C), and “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72, advisory committee note, 1983 Addition, Subdivision (b). Defendant’s objections to the Magistrate Judge’s recommendations are twofold. I. Emotional and Reputational Damages First, Defendant asserts that Plaintiff has not shown sufficient evidence of emotional and" }, { "docid": "22218295", "title": "", "text": "may be referred to a magistrate judge only for recommendation, not for decision; such matters principally include motions for injunctive relief and motions for dismissal. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). “Matters concerning discovery generally are considered ‘nondispositive’ of the litigation.” Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.), cert. denied, 498 U.S. 846, 111 S.Ct. 132, 112 L.Ed.2d 100 (1990). Like most discovery requests directed to opposing parties, subpoenas to nonparties are designed to elicit information. A motion to quash a subpoena in an action seeking relief other than production of the subpoenaed information is not normally a dispositive motion. As to a nondispositive matter, “[t]he district judge in the case must consider timely objections and modify or set aside any part of the [magistrate judge’s] order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). As to a dispositive matter, any part of the magistrate judge’s recommendation that has been properly objected to must be reviewed by the district judge de novo. See id. 72(b). In the present case, the Doe defendants’ motion to quash plaintiffs’ subpoena to SUNYA was not a dispositive motion. Although Doe 3 contends to the contrary, arguing that the magistrate judge “necessarily had to decide whether the complaint stated a claim or not” (Doe 3 brief on appeal at 45), that argument ignores, inter alia, all factors other than the viability of the Complaint. Applying the five-factor Sony Music test, the magistrate judge could have granted the motion to quash despite the sufficiency of the Complaint if it had found, for example, that the subpoena was unduly broad or that plaintiffs had easy access to the Doe defendants’ identities through other means. Quashing the subpoena on such a basis plainly would not have ended the action. In addition, Doe 3’s contention that the motion to quash was the equivalent of a motion to dismiss for failure to state a claim ignores arguments he made to the magistrate judge. He argued that in order to overcome the qualified privilege, a plaintiff must produce evidence supporting" }, { "docid": "22422464", "title": "", "text": "to those motions as to which a magistrate judge can only make a recommendation rather than a ruling, Fed. R.Civ.P. 72(b). Rule 72 mirrors the standard-of-review taxonomy described in section 636(b)(1). It provides that a magistrate’s order on a nondispositive motion shall be modified or set aside by the district court only if “found to be clearly erroneous or contrary to law.” Fed. R.Civ.P. 72(a). Conversely, if a party contests a magistrate’s proposed findings and recommendations on a dispositive motion, the district judge must “make a de novo determination.” Fed.R.Civ.P. 72(b). We think that the terms dispositive and nondispositive as used in Rule 72 must be construed in harmony with the classifications limned in section 636(b)(1). See generally In re San Juan Dupont Plaza Hotel Fire Litig., 994 F.2d 956, 962 (1st Cir.1993) (construing Fed.R.Civ.P. 54(d) in light of 28 U.S.C. § 1920); cf. Marlowe v. Bottarelli, 938 F.2d 807, 813 (7th Cir.1991) (acknowledging the rule that, whenever possible, courts should construe statutes and implementing regulations in pari materia). This does not mean, of course, that dispositive motions are those excepted motions specifically enumerated in section 636(b)(1)(A), and no others. Rather, that enumeration informs the classification of other motions as dispositive or nondisposi-tive. Motions for sanctions premised on alleged discovery violations are not specifically excepted under 28 U.S.C. § 636(b)(1)(A) and, in general, they are not of the same genre as the enumerated motions. We hold, therefore, that such motions ordinarily should be classified as non-dispositive. See Maisonville v. F2 Am., Inc., 902 F.2d 746, 747-48 (9th Cir.1990); Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.1990); see also 14 James Wm. Moore, et al., Moore’s Federal Practice ¶ 72.02(7)(b) (3d ed.1999). Withal, we caution that a departure from this general rule may be necessary in those instances in which a magistrate judge aspires to impose a sanction that fully disposes of a claim or defense. See, e.g., Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir.1988) (striking of plaintiffs’ pleadings as discovery sanction reviewed de novo); North Am. Watch Corp. v." }, { "docid": "1749326", "title": "", "text": "COM-TECH refused to produce certain documents on the ground that they were protected by the attorney-client privilege. Over one year later, COMPUTER ASSOCIATES made a motion before Magistrate Jordan to challenge the privilege, inter alia, on the grounds that the documents were necessary to prove the defense of statute of limitations on the RICO and common-law fraud claims. Magistrate Jordan thereafter conducted an in camera inspection of the documents, and denied COMPUTER ASSOCIATES’ motion to compel as to every document, except one, concluding that the documents were “irrelevant” on the issue of statute of limitations (see Com-Tech Assocs. v. Computer Assocs. Int’l, Inc., CV-87-3355 [DFJ], slip op. at p. 4 [E.D.N.Y. Aug. 24, 1989]). After his in camera review, Magistrate Jordan concluded that the documents did not “contain any information, or leads thereto, which would be helpful to the defendants” on the statute of limitations defense (id.). COMPUTER ASSOCIATES now seeks review of that discovery ruling pursuant to Rule 5 of the Standing Orders of the Court on Effec tive Discovery in Civil Cases in the Eastern District of New York (“Standing Orders”). According to Rule 5(a) of the Standing Orders, “[a] party may make application to the judge to review a ruling of the magistrate on a discovery matter pursuant to Fed.R.Civ.P. 72(a)”. Under Rule 72(a), governing nondispositive matters that are referred to a Magistrate, the Court “shall modify or set aside any portion of the magistrate’s order found to be clearly erroneous or contrary to law” (Fed.R.Civ.P. 72[a]; see also 28 U.S.C. § 636[b][l][A] [district court may reconsider Magistrate’s finding if “clearly erroneous or contrary to law”]). This, of course, is a lesser standard of review than when the Court is asked to review a dispositive motion subject to de novo review (see Fed.R.Civ.P. 72[b]). Discovery rulings by a Magistrate are considered nondispositive (see Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 [2d Cir.], cert. denied sub nom. Greenspan, Jaffe & Rosenblatt v. Sara Lee Corp., — U.S. -, 111 S.Ct. 132, 112 L.Ed.2d 100 [1990]), and are thus reviewed under the “clearly erroneous”" }, { "docid": "6711977", "title": "", "text": "ARRT and precludes Ms. Vistein from recovering damages for her due process and intentional tortious interference claims. (R & R pp. 13-17). However, the R & R recommends the immunity it provides extends only to the plaintiffs claims for damages. Id. at 14. Therefore, the R & R recommends Ms. Vistein’s claims for injunctive and declaratory relief are not precluded under O.R.C. § 2305.251. Id. The R & R thoroughly reviews the merits of the plaintiffs due process and intentional tortious interference claims and recommends disposing of them on the merits. (R & R, pp. 17-21 & 21-26). Under Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those portions of the Magistrate Judge’s R & R to which specific objections are made. Upon review, this Court “may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). For the reasons set forth below this Court will adopt the reasoning of the R & R, granting in part and denying in part defendant’s motion for summary judgment, and granting in part and denying in part plaintiffs motion for summary judgment. IV. Standard of Review Summary judgment must be entered “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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir.1991) (moving party has the “burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmov-ing party," }, { "docid": "18064472", "title": "", "text": "the matter must be “not dispositive of a claim or defense of a party.” Id. Parties have 10 days after service of the recommended disposition or order within which to file their objections. Fed. R.Civ.P. 72. Objections must be in writing and must be specific. Page v. Lee, 337 F.3d 411, 416 n. 3 (4th Cir.2003). A failure to file a specific, written objection to a magistrate judge’s order or recommendation waives the right to appellate review. Wells v. Shriners Hosp., 109 F.3d 198, 201 (4th Cir.1997). B. Objections The Gardendance Parties filed several objections to the Order and Recommendation of United States Magistrate Judge entered on July 11, 2005. Through Mr. Joseph, they filed an objection on July 18, within the 10-day time limit. This document addresses only the order granting sanctions against the Gardendance Parties of $8909.79 for the no-show depositions that occurred in February. A few days later, through Ms. Denison, they timely filed a second set of specific objections to the sanctions awards, the striking of Gar-dendance’s response to the Motion for Summary Judgment, the denial of an extension of time to respond to the Motions to Dismiss, the recommendation of granting the Motions to Dismiss, and the recommendation of dismissal. These filings will be considered together. 1. Sanctions Awards The award of sanctions against a party for discovery violations is a nondispositive matter which the district court reviews under the “clearly erroneous or contrary to law” standard. See, e.g., Grimes v. City & County of San Francisco, 951 F.2d 236, 240 (9th Cir.1991); Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.1990). Under this standard, the court must affirm unless a review of the entire record leaves the court with the “definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). The court has carefully reviewed the history of this litigation and finds no clear error with either the amount awarded under Woodstock’s 1st Motion for No-Show Sanctions or the allowance" }, { "docid": "2877322", "title": "", "text": "No. 49.) For the reasons set forth below, Magistrate Judge Lowe’s Report-Recommendation is accepted as modified by the withdrawal of certain of Plaintiffs claims and his introduction of new evidence on appeal. I. STANDARD OF REVIEW When specific objections to a magistrate judge’s Report-Recommendation are made, the Court makes a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1)(C). When only general objections are made, the Court reviews for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.1999). Similarly, when a party makes no objection to a portion of a Report-Recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducting the appropriate review, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). II. LEGAL STANDARD ON MOTION FOR SUMMARY JUDGMENT Under Fed.R.Civ.P. 56, summary judgment is warranted if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In addition, “[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ... [record] which it believes demonstrate the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265" }, { "docid": "14810672", "title": "", "text": "ORDER FEUERSTEIN, District Judge. Before the Court are objections by defendants Village of Rockville Centre (“the Village”), the Rockville Centre Police Department (“the RVCPD”) and John P. McKeon (“McKeon”) (collectively, “the Village defendants”) and Brian Burke (“Burke”) to so much of a Report and Recommendation of United States Magistrate Judge E. Thomas Boyle dated August 5, 2009 (“the Report”) that recommends denying in part their respective motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated herein, the Report of Magistrate Judge Boyle is accepted in its entirety. I Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct proceedings on dispositive pretrial matters without the consent of the parties. Fed.R.Civ.P. 72(b). Any portion of a report and recommendation on dispositive matters, to which a timely objection has been made, is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The court, however, is not required to review the factual findings or legal conclu sions of the magistrate judge as to which no proper objections are interposed. See, Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). To accept the report and recommendation of a magistrate judge to which no timely objection has been made, the district judge need only be satisfied that there is no clear error on the face of the record. See, Fed. R.Civ.P. 72(b); Baptichon v. Nevada State Bank, 304 F.Supp.2d 451, 453 (E.D.N.Y.2004), aff'd, 125 Fed.Appx. 374 (2d Cir.2005); Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). II The Village defendants contend that Magistrate Judge Boyle erred, inter alia, in: (1) overlooking “certain undisputed facts” occurring after February 13, 2003, (Memorandum of Law in Support of the Village Defendants Objections [Vill. Obj.], p. 2); (2) misapplying the summary judgment standard, (Vill. Obj., p. 4); (3) misapplying the standard to establish a prima facie case of" }, { "docid": "4080178", "title": "", "text": "privileges did not apply to certain items, and in directing defendants to produce the items to plaintiffs. II. Legal Standabds A. Standard of Review Rule 72(a) and the Federal Magistrates Act, 28 U.S.C. § 636(b) (1)(A), provide that a district court shall reverse a magistrate judge’s order regarding a non-dispositive matter only where the order is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); see Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir.2007). Pretrial discovery matters are “non-dispositive,” and, thus, must be reviewed under this highly deferential standard. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.1990); Popular Imports, Inc. v. Wong’s Int’l, Inc., 166 F.R.D. 276, 277 (E.D.N.Y.1996). An order is “clearly erroneous” if the reviewing court is “left with the definite and firm conviction that a mistake has been committed.” Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). An order is “contrary to law” “when it fails to apply or misapplies relevant statutes, ease law or rules of procedure.” Thompson v. Keane, No. 95 Civ. 2442(SHS), 1996 WL 229887, at *1 (S.D.N.Y. May 6, 1996) (internal quotation marks omitted). Therefore, pursuant to these standards, a magistrate judge’s orders on discovery matters are entitled to substantial deference. U2 Home Entm’t, Inc. v. Hong Wei Int’l Trading Inc., No. 04 Civ. 6189(JFK), 2007 WL 2327068, at *1 (S.D.N.Y. Aug.13, 2007) (citing Nikkal Indus., Ltd. v. Salton, Inc., 689 F.Supp. 187, 189 (S.D.N.Y.1988)) (“Consistently, it has been held that a magistrate’s report resolving a discovery discourse between litigants should be afforded substantial deference and be overturned only if found to be an abuse of discretion.”); see, e.g., Catskill Dev., LLC v. Park Place Entm’t Corp., 206 F.R.D. 78, 86 (S.D.N.Y.2002). B. The Deliberative Process Privilege “The deliberative process privilege is designed to promote the quality of agency decisions by preserving and encouraging candid discussion between officials. It is based on ‘the obvious realization that officials" }, { "docid": "18064547", "title": "", "text": "24, 2005, Plaintiffs responded to Defendants’ Objections and submitted objections of their own (“Plaintiffs’ Objections”) asserting that, among other things: (1) Judge Maas had abused his discretion by limiting production to “sample” data; and (2) Judge Maas’s Discovery Order “does not address at all the issue of the discoverability of information about the number of searches conducted under the program.” (PI. Obj. at 1-2.) On August 23 and 24, 2005, Defendants submitted for in camera review by this Court the disputed documents and information. On August 24, 2005, the Court heard oral argument from the parties. (See Transcript of Conf., dated Aug. 24, 2005 (“Tr.”).) Three areas of discovery remain in dispute, as follows: (1) the number of subway stations where no searches were conducted on days (and at times) when searches were conducted; (2) the number of station entrances where no searches were conducted on days (and at times) when searches were conducted; and (3) the number of searches conducted on a daily basis. (Tr. at 3-18.) Without waiving its claim of privilege, at the August 24, 2005 conference the City disclosed that subway searches were conducted every day during the period July 21 through August 21, 2005. (Tr. at 3-4, 14.) On August 25, 2005, the parties submitted letters reiterating arguments made at the August 24, 2005 conference. For the reasons set forth below, the Discovery Order is suspended and no further documents need be disclosed by Defendants pending the hearing on September 7, 2005 at 9:30 a.m. II. Standard of Review When considering objections to a discovery order issued by a magistrate judge, the Court “shall modify or set aside any portion of the magistrate judge’s order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a); see 28 U.S.C. § 636(b)(1)(A); Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990); United States v. Premises Known as 281 Syosset Woodbury Road, 862 F.Supp. 847, 851 (E.D.N.Y.1994), affd, 71 F.3d 1067 (2d Cir.1995). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the" }, { "docid": "4080177", "title": "", "text": "2004 WL 3019762, at *5 (S.D.N.Y. Dec. 29, 2004)).) Finally, Judge Francis found that defendants had failed to establish that the law enforcement privilege applied to deposition testimony regarding the “presence and activ ities of undercover officers at RNC-related demonstrations.” (Id. at 23.) Similarly, he rejected defendants’ invocation of the privilege as it applied to plaintiffs’ request to “seek to discover the identities of undercover officers” who had “witnessed, participated in, or provided information for [plaintiffs’] arrest[s] and detention[s].” (Id.) With regard to these rulings, Judge Francis noted that the items at issue may be designated as “confidential” pursuant to the Protective Orders, and that, if necessary, defendants could apply for further protective measures — such as disclosing only the shield number of an undercover officer, or using a pseudonym — in order to ensure that an officer would not be exposed to a “significant safety risk____” (Id.) On May 11, 2007, defendants filed objections to the April 20 Order. Defendants assert that Judge Francis erred in finding that the law enforcement and deliberative process privileges did not apply to certain items, and in directing defendants to produce the items to plaintiffs. II. Legal Standabds A. Standard of Review Rule 72(a) and the Federal Magistrates Act, 28 U.S.C. § 636(b) (1)(A), provide that a district court shall reverse a magistrate judge’s order regarding a non-dispositive matter only where the order is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); see Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir.2007). Pretrial discovery matters are “non-dispositive,” and, thus, must be reviewed under this highly deferential standard. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.1990); Popular Imports, Inc. v. Wong’s Int’l, Inc., 166 F.R.D. 276, 277 (E.D.N.Y.1996). An order is “clearly erroneous” if the reviewing court is “left with the definite and firm conviction that a mistake has been committed.” Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746" }, { "docid": "22218294", "title": "", "text": "risk being held in contempt to vindicate someone else’s rights.’ ” In re Grand Jury Subpoena Duces Tecum Dated May 29, 1987, 834 F.2d 1128, 1130 (2d Cir.1987) (quoting In re Katz, 623 F.2d 122, 124 (2d Cir.1980) (brackets in In re Gmnd Jury omitted)). On motion of Doe 3, this Court stayed SUNYA’s compliance with the subpoena with respect to information pertaining to Doe 3 pending resolution of the appeal. II. DISCUSSION On appeal, Doe 3 principally argues that the Complaint does not state a claim sufficient to overcome his First Amendment privilege of anonymity. He also pursues his contentions that his motion to quash was improperly referred to the magistrate judge and that the district court thus erred by not reviewing the magistrate judge’s decision de novo. We find no merit in Doe 3’s contentions. A. The Procedural Challenge The district court may designate a magistrate judge to hear and decide a pretrial matter that is “not dispositive of a party’s claim or defense.” Fed.R.Civ.P. 72(a); see 28 U.S.C. § 636(b)(1)(A). Dis-positive matters may be referred to a magistrate judge only for recommendation, not for decision; such matters principally include motions for injunctive relief and motions for dismissal. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). “Matters concerning discovery generally are considered ‘nondispositive’ of the litigation.” Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.), cert. denied, 498 U.S. 846, 111 S.Ct. 132, 112 L.Ed.2d 100 (1990). Like most discovery requests directed to opposing parties, subpoenas to nonparties are designed to elicit information. A motion to quash a subpoena in an action seeking relief other than production of the subpoenaed information is not normally a dispositive motion. As to a nondispositive matter, “[t]he district judge in the case must consider timely objections and modify or set aside any part of the [magistrate judge’s] order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). As to a dispositive matter, any part of the magistrate judge’s recommendation that has been properly objected to must be reviewed by the district judge de novo. See id." }, { "docid": "2268705", "title": "", "text": "Id. The R & R noted that objections, if any, would be due by March 24, 2014 and that failure to timely object would preclude la ter appellate review of any order of judgment entered. Id. at 335. ' Neither the Seifts Plaintiffs, nor the Individual Plaintiffs, nor the Defendants filed objections. They have therefore waived their right to object to the R & R. See Dow Jones & Co. v. Real-Time Analysis & News, Ltd., No. 14 Civ. 131(JMF)(GWG), 2014 WL 5002092, at *1 (S.D.N.Y. Oct. 7, 2014) (citing Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.1992); Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir.2008)). II. Standard of Review A district court reviewing a magistrate judge’s report and recommendation “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). Parties may raise “specific,” “written” objections to the report and recommendation “[wjithin fourteen days after being served with a copy.” Id.; see also Fed.R.Civ.P. 72(b)(2). A district court reviews de novo those portions of the report and recommendation to which timely and specific objections are made. 28 U.S.C. § 636(b)(1)(C); see also United States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 38 (2d Cir.1997). The district court may adopt those parts of the report and recommendation to which no party has timely objected, provided no clear error is apparent from the face of the record. Lewis v. Zon, 573 F.Supp.2d 804, 811 (S.D.N.Y.2008). The district court will also review the report and recommendation for clear error where a party’s objections are “merely perfunctory responses” argued in an attempt to “engage the district court in a rehashing of the same arguments set forth in the original petition.” Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y.2008) (citations and internal quotation marks omitted). III. Conclusion No party has objected to the R & R. The Court has reviewed Judge Smith’s thorough R & R and finds no error, clear or otherwise. Judge Smith reached her determination on damages after a careful review of the parties’ submissions. R" }, { "docid": "8852981", "title": "", "text": "incurred by the defendants in taking Dr. Bernard Miller’s deposition.” August Order at 6 (emphasis in original). In denying LCC’s motion in all other respects, Magistrate Judge Rosen held that “in keeping with this court’s goal of making the defendants whole, this court shall not pass upon the reasonableness of the fees and costs incurred by the defendants as a result of the substitution of the plaintiff’s expert.” Id at 5. This appeal ensued. II. DISCUSSION The Federal Magistrates Act of 1968 (the “FMA”) created the position now known as magistrate judge and allowed district courts to refer a host of matters to magistrate judges for determinations subject to various levels of review by the district courts. See 28 U.S.C. § 636(b)(1). Congress has amended the FMA several times to expand the scope of magistrate judges’ duties in order to alleviate growing burdens on district courts. See, e.g., H.R.Rep. No. 94-1609 (1976), reprinted in 1976 U.S.C.C.A.N. 6162; see generally 12 Charles A Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure: CM 2d § 3066. Subparagraph A of § 636(b)(1) provides for a district court to review a magistrate judge’s determination of a non-dispositive issue while subparagraph B governs review of a report and recommendation concerning a dispositive issue. The Federal Rules of CM Procedure and the Local Civil Rules of the District of New Jersey each contain corresponding provisions. See Fed. R.Civ.P. 72(a), 72(b); Local Civ. R. 72.1(c)(1), 72.1(c)(2). Magistrate Judge Rosen’s order concerning the admissibility of testimony and monetary sanctions is clearly not dispositive of any claim and is therefore subject to the provisions of subparagraph A. See, e.g., Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.) (treating sanction order pursuant to Rule 37 as non-dispositive), cert, denied 498 U.S. 846, 111 S.Ct. 132, 112 L.Ed.2d 100 (1990). A. Waiver 1. Does LCC’s Failure to Assert Grounds for Relief before the Magistrate Judge in the First Instance Constitute a Waiver of Those Grounds on Appeal to the District Court? LCC appeals from Magistrate Judge Rosen’s order granting LCC’s motion" }, { "docid": "1611398", "title": "", "text": "case law or rules of procedure.” Tompkins v. R.J. Reynolds Tobacco Co., 92 F.Supp.2d 70, 74 (N.D.N.Y.2000). Because the nondispositive review standard is highly deferential, magistrate judges have broad discretion to regulate nondispositive matters, and reversal is warranted only if that discretion is abused. See American Stock Exchange, LLC v. Mopex, Inc., 215 F.R.D. 87, 90 (S.D.N.Y.2002). Although legal authority may support an objection, the critical inquiry is whether there is legal authority that supports the magistrate’s conclusion, in which case there is no abuse of discretion. See Tompkins, 92 F.Supp.2d at 79. That reasonable minds may differ on the wisdom of a legal conclusion does not mean it is clearly erroneous or contrary to law. See Moss v. Enlarged City School District of the City of Amsterdam, 166 F.Supp.2d 668, 670 (N.D.N.Y.2001). A magistrate judge is statutorily authorized to issue orders regarding nondispositive matters, see 28 U.S.C. § 636(b)(1)(A); Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.1990), and that authority has been specifically delegated to this district’s Magistrate Judges by local rules. See L.R. 72.1 & 72.3(c). A nondispositive order is one which does not terminate claims or otherwise preclude consideration of the merits of those claims. § 636(b)(1)(A) identifies dispositive matters, and anything not included is nondispositive by default. See Tompkins, 92 F.Supp.2d at 74. “Pretrial matters involving discovery are generally considered non-dispositive[.]” See Thomas E. Hoar, 900 F.2d at 525; Tompkins, 92 F.Supp.2d at 74; Hasbrouck v. BankAmerica Housing Services, Inc., 190 F.R.D. 42 (N.D.N.Y.1999); Doe v. Marsh, 899 F.Supp. 933, 934 (N.D.N.Y.1995). Sanctions for discovery violations are generally non-dispositive matters unless the sanction employed disposes of a claim; e.g., striking pleadings with prejudice, or dismissal. Thomas E. Hoar, 900 F.2d at 525. Here, Judge Peebles’s order declined to file a report recommending a dis-positive result; namely, dismissal. Accordingly, it is nondispositive, and Wright’s limited objection regarding deposition abuse is meritorious only if the order is clearly erroneous or contrary to law. Since the imposition of a particular sanction, or any sanction whatsoever, is discretionary, Judge Peebles did not abuse his" }, { "docid": "18233468", "title": "", "text": "resource material likewise may be protected'\" by the qualified journalist’s privilege); In re Pan Am Corp., 161 B.R. 577, 583 (S.D.N.Y.1993). . \"[T]he individual claiming the privilege must demonstrate, through competent evidence, the intent to use material—sought, gathered or received—to disseminate information to the public and that such intent existed at the inception of the newsgathering process. This requires an intent-based factual inquiry to be made by the district court.” von Bulow v. von Bulow, 811 F.2d at 144. Someone not ordinarily considered a journalist, but who is engaged in \"activities traditionally associated with the gathering and dissemination of news\" can be protected by the privilege even though not a part of the \"institutionalized press.” Id. at 142. . In denying defendants’ motion to dismiss, Judge Marrero recognized that \"[p]laintiffs will be able to recover only if they can ultimately prove causation—after they have had a reasonable opportunity to gather evidence through discovery and their proof has been put to the test, by means of a dispositive motion or at trial.\" 337 F.Supp.2d at 508. . At oral argument, counsel for McGraw-Hill conceded that the information sought is relevant, but not highly material nor critical or necessary. (11/9/05 Oral Arg. Tr. at 45.) . As plaintiffs have stated: The CFTC decision is notable for how concisely and persuasively it dismantled McGraw Hill's arguments. Addressing the qualified privilege requirements, the CFTC first established that it had a need for the requested information, as evidence of incorrect trade report data having been submitted: \"A request for the data Platts received from Energy Company clearly goes to the heart of proving that the data was false.\" Op. at 8. Like the CFTC, Plaintiffs need this information both as the only direct evidence that Defendants submitted false reports to the Publications—indeed, the false reports are the violation—and to recompute the indices, by correcting the false trade reports submitted by Defendants, and using the surrounding data submitted both by Defendants and non-parties. Id. Indeed, Plaintiffs submit that their need for the Publications' trade report data is greater than that of the CFTC, because in this" } ]

[ { "docid": "8926029", "title": "", "text": "personnel files expressly protected by the (b)(6) general privacy exemption. To permit release would constitute a “clearly unwarranted invasion of personal privacy.” Defendants’ Memorandum in Support of Motion for Summary Judgment at 5. In his opposition memorandum, the plaintiff contests both of these arguments. First, the plaintiff points out that citizenship information is routinely included in the applications that foreign correspondents are required to file when they apply for accreditation with the Department. According to the plaintiff, then, citizenship information was readily available to the defendants at the time the request was made, even if it was not contained in the form of a “list”. Second, the plaintiff contends that as a matter of law citizenship information should not fall within the (b)(6) “personal privacy” exemption to FOIA. II. Unlike other civil actions, a decision to grant or deny summary judgment in a FOIA suit does not hinge on the existence of a genuine issue of material fact. See Fed.R.Civ.P. 56. Rather, summary judgment will be granted on the basis of agency affidavits “when the affidavits describe ‘the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.’ ” Miller v. Casey, 730 F.2d 773 (D.C. Cir.1984), quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). It is against this standard, therefore, that the affidavit and arguments submitted by the defendants must be evaluated. A. The defendants are correct in pointing out that FOIA requires a requester to “reasonably describe” the records sought, see 5 U.S.C. § 552(a)(3). The agency faced with the request is not required to manufacture or compile new documents from disparate data sources within its files, but the agency must bear in mind that “the fundamental objective of FOIA is to foster disclosure, not secrecy”, Chrysler Corp. v. Brown, 441 U.S. 281, 290 n. 10, 99 S.Ct. 1705, 1712 n. 10, 60 L.Ed.2d 208 (1979), quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct." } ]

[ { "docid": "3627509", "title": "", "text": "Vaughn Index (the “Vaughn Index”) [Dkt. Nos. 124, 125]. This Index reflected that the FBI had, upon review of the sample, released 36 pages in full, 234 pages in part, and withheld 157 pages in full. On August 2, 2010, Defendant filed the present Motion for Summary Judgment [Dkt. No. 126]. On September 22, 2010, Plaintiffs filed their Opposition and Cross-Motion for Summary Judgment [Dkt. No. 132], On March 25, 2011, Defendant filed its Reply to Plaintiffs’ Opposition and Opposition to Plaintiffs’ Cross-Motion for Summary Judgment [Dkt. No. 140]. On May 6, 2011, Plaintiffs filed their Reply to Defendant’s Opposition [Dkt. No. 147]. II. STANDARD OF REVIEW FOIA “requires agencies to comply with requests to make their records available to the public, unless the requested records fall within one or more of nine categories of exempt material.” Oglesby v. United States Dep’t of the Army, 79 F.3d 1172, 1176 (D.C.Cir.1996) (citing 5 U.S.C. §§ 552(a), (b)). An agency that withholds information pursuant to a FOIA exemption bears the burden of justifying its decision, Petroleum Info. Corp. v. Dep’t of the Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992) (citing 5 U.S.C. § 552(a)(4)(B)), and must submit an index of all materials withheld. Vaughn, 484 F.2d at 827-28. In determining whether an agency has properly withheld requested documents under a FOIA exemption, the district court conducts a de novo review of the agency’s decision. 5 U.S.C. § 552(a)(4)(B). FOIA cases are typically and appropriately decided on motions for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F.Supp.2d 123, 130 (D.D.C.2011); Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009). Summary judgment will be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits or declarations, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). In a FOIA case, the court may award summary judgment solely on the basis of information provided in affidavits or declarations when" }, { "docid": "7305240", "title": "", "text": "a FOIA request is de novo, Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 74 (D.D.C.2007) (citing 5 U.S.C. § 552(a)(4)(B)), and the agency “bears the burden of establishing the applicability of the claimed exemption,” Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C.Cir.2003). II. FOIA Congress enacted FOIA to “open[ ] up the workings of government to public scrutiny through the disclosure of government records.” Stern v. FBI, 737 F.2d 84, 88 (D.C.Cir.1984) (citations and quotations omitted). Although FOIA is aimed toward “open[ness] ... of government,” id., Congress acknowledged that “legitimate governmental and private interests could be harmed by release of certain types of information.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C.Cir.1992) (citations and quotations omitted). As such, pursuant to FOIA’s nine exemptions, an agency may withhold requested information. 5 U.S.C. § 552(a)(4)(B) & (b)(l)-(9). However, “[b]ecause FOIA establishes a strong presumption in favor of disclosure ... requested material must be disclosed unless it falls squarely within one of the nine exemptions carved out in the Act.” Burka v. U.S. Dep’t of Health and Human Servs., 87 F.3d 508, 515 (D.C.Cir.1996). In this case, plaintiffs challenge the adequacy of defendant’s search, defendant’s segregability analysis, and the conclusory nature of defendant’s Vaughn index. Plaintiffs also contend that defendant’s withholdings pursuant to Exemptions 5 and 6 are improper. Accordingly, plaintiffs move the -Court to either compel production of these documents or order in camera review or discovery to determine whether these documents should be produced and whether defendant has adequately discharged its FOIA obligations. A. Inadequate Search To prevail on a motion for summary judgment in a FOIA case, an agency must show “beyond material doubt ... that it has conducted a search reasonably calculated to uncover all relevant documents.” Weisberg v. U.S. Dep’t of Justice (“Weisberg II”), 705 F.2d 1344, 1351 (D.C.Cir.1983); see also Oglesby, 920 F.2d at 68. With regard to the adequacy of an agency’s search, “[t]he issue is not whether any further documents might conceivably exist but rather whether the government’s search for responsive documents was" }, { "docid": "17856736", "title": "", "text": "IRS who replaced Kenneth Spencer when he left, submitted a declaration in support of the IRS’' entitlement to withhold information responsive to Patterson’s second request based upon exemption (b)(5) (“Cleveland Declaration”). The Cleveland Declaration also described the process by which Spencer searched for documents to support the IRS’ claim that it could not locate any responsive documents to the second and third items in the second FOIA request. Patterson filed a response to the motion for summary judgment and requested that the district court impose sanctions against the government’s counsel. On November 3,1992, the district court granted the IRS’ motion for summary judgment based on exemptions 7(C) and 5 and denied Patterson’s motion for sanctions. Patterson filed a timely notice of appeal. II. “[Disclosure, not secrecy, is the dominant objective” of the FOIA. Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). Because of this, our obligation is “to construe FOIA exemptions narrowly in favor of diselo- sure.” United States Dep’t of Justice v. Landano, — U.S. -, -, 113 S.Ct. 2014, 2024, 124 L.Ed.2d 84 (1993); John Doe Agency v. John Doe Corp., 493 U.S. 146, 151-52, 110 S.Ct. 471, 474-75, 107 L.Ed.2d 462 (1989); Matter of Wade, 969 F.2d 241, 246 (7th Cir.1992). The government agency bears the burden of justifying its decision to withhold the requested information. 5 U.S.C. § 552(a)(4)(B); Becker v. IRS, 34 F.3d 398, 402 (7th Cir.1994). “A district court may grant summary judgment to the government in a FOIA case only if ‘the agency affidavits describe the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld is logically within the domain of the exemption claimed.’ ” PHE, Inc. v. Department of Justice, 983 F.2d 248, 250 (D.C.Cir.1993) (quoting King v. United States Dep’t of Justice, 830 F.2d 210, 217 (D.C.Cir.1987)). Since “[bjoth the court and the requester must look to the affidavits for an explanation of the agency’s decision to withhold information ... an affidavit that contains merely a ‘categorical description of redacted materials" }, { "docid": "17175773", "title": "", "text": "small number of documents and pages at issue, that the two documents be submitted under seal for in camera inspection. These documents were then submitted to the Court, in unredacted form, on July 20, 2009. II. Standard of Review The standard for summary judgment is well-settled. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a party is entitled to summary judgment if “there is no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir.2006). In a motion for summary judgment in a FOIA case, the burden of justifying nondisclosure lies with the defendant agency. Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.1994), cert. denied, 513 U.S. 823, 115 S.Ct. 86, 130 L.Ed.2d 38. “It is the responsibility of the federal courts to conduct de novo review when a member of the public challenges an agency’s assertion that a record being sought is exempt from disclosure. The burden of proof, upon such review, rests with the agency asserting the exemption, with doubts resolved in favor of disclosure.” A. Michael’s Piano, Inc. v. FTC, 18 F.3d 138, 143 (2d Cir.1994), cert. denied, 513 U.S. 1015, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994) (quoting Fed. Labor Relations Auth. v. U.S. Dep’t of Veterans Affairs, 958 F.2d 503, 508 (2d Cir.1992)). Summary judgment is appropriate where there are “[a]ffidavits or declarations supplying facts indicating that the agency has conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption[.]” Carney, 19 F.3d at 812. When agency submissions are adequate on their face, a district court has the discretion to “forgo discovery and award summary judgment on the basis of affidavits.” Id. (quoting Goland v. CIA 607 F.2d 339, 352 (D.C.Cir.1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980)); accord Maynard v. C.I.A., 986 F.2d 547, 556 n. 8 (1st Cir. 1993); Simmons v. U.S. Dep’t of Justice, 796" }, { "docid": "8202382", "title": "", "text": "is “material” only if it is capable of affecting the outcome of litigation. Id. at 248-49, 106 S.Ct. 2505. A non-material factual dispute is insufficient to prevent the court from granting summary judgment. Id. at 249, 106 S.Ct. 2505. Most FOIA cases are appropriately decided on motions for summary judgment. See Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009). A court may award summary judgment in a FOIA case by relying on the information included in the agency’s affidavits or declarations if they are “relatively detailed and non-conclusory,” SafeCard Seros., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C.Cir.1991) (citations and internal quotation marks omitted), and if they describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith,” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’” DOJ v. Reporters Comm, for Freedom of Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). To prevail on a motion for summary judgment, an agency must demonstrate that “each document that falls within the class requested either has been produced, is uni dentifiable, or is wholly [or partially] exempt from the Act’s inspection requirements.” Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978); see also Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C.Cir.2001). B. Exemption 5 and the Deliberative Process Privilege Under FOIA Exemption 5, an agency may withhold “inter-agency or in-tra-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 fall within Exemption 5, the document must satisfy two conditions: (1) “its" }, { "docid": "13119163", "title": "", "text": "Hanson appealed the district court’s decision to this court. II. The question of whether a district court properly granted the government summary judgment in a FOIA action is one of law which we review de novo. Ethyl Corp. v. U.S. E.P.A., 25 F.3d 1241, 1246 (4th Cir.1994). FOIA provides that, subject to certain statutory exemptions, federal agencies shall “upon any request for records which reasonably describe such records ... make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A) (2000). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). Nonetheless, FOIA specifies nine exemptions from its general disclosure provisions. 5 U.S.C. § 552(b). These exemptions are designed to safeguard various public interests against the harms that would arise from overbroad disclosure. In general, FOIA exemptions should be narrowly construed to favor disclosure. Bowers v. U.S. Dept. of Justice, 930 F.2d 350, 354 (4th Cir.1991). The burden of demonstrating that a requested document falls under an exemption rests on the government. City of Virginia Beach, Va. v. U.S. Dep’t of Commerce, 995 F.2d 1247, 1252 (4th Cir.1993); 5 U.S.C. § 552(a)(4)(B). The government can meet this burden by describing the withheld material with reasonable specificity and explaining how it falls under one of the enumerated exemptions. Miscavige v. I.R.S., 2 F.3d 366, 367-68 (11th Cir.1993). As a general rule, these and all other FOIA determinations should be resolved on summary judgment. Id. at 369. The relevant exemption here is Exemption 5. Exemption 5 provides that FOIA disclosure rules do not apply to “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). Courts have interpreted Exemption 5 to exclude from disclosure docu ments produced under the attorney work product doctrine and the deliberative process privilege. N.L.R.B. v. Sears," }, { "docid": "10325869", "title": "", "text": "one-page memorandum from the Department of Defense Office of General Counsel to the White House Counsel concerning “The President’s Action in Two Military Capital Cases.” Reed Decl. Ex. A. Finding Documents 408, 499, and 86 protected by the presidential communications privilege and Document 87 protected by the deliberative process privilege, the district court concluded that FOIA Exemption 5 shielded each of the disputed documents from disclosure. See Loving v. Dep’t of Def, 496 F.Supp.2d 101, 107-09 (D.D.C.2007). It therefore granted the government’s motion for summary judgment and denied Loving’s. Id. at 110. Loving now appeals. We review the district court’s summary judgment ruling de novo, remaining “mindful that the ‘burden is on the agency’ to show that requested material falls within a FOIA exemption,” and affirming only if we detect no genuine issue of material fact. Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992) (quoting § 552(a)(4)(B)). II. FOIA directs that “each agency, upon any request for records ... shall make the records promptly available to any person” unless the requested records fall within one of the statute’s nine exemptions. § 552(a)(3)(a). Exemption 5, the only exemption at issue here, allows the government 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.” § 552(b)(5). As we have explained, Exemption 5 “incorporates the traditional privileges that the Government could assert in civil litigation against a private litigant”' — including the presidential communications privilege, the attorney-client privilege, the work product privilege, and the deliberative process privilege — and excludes these privileged documents from FOIA’s reach. Baker & Hostetler LLP, 473 F.3d at 321. Because Exemption 5 covers “those documents, and only those documents, normally privileged in the civil discovery context,” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975), it does not protect documents that are “ ‘routinely’ or ‘normally’ disclosed” in civil discovery, Dep’t of Justice v. Julian, 486 U.S. 1, 12, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988) (quoting" }, { "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": "20208235", "title": "", "text": "records, and each responsive record, which is located, was either produced to the plaintiff or is exempt from disclosure. Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 368 (D.C.Cir.1980). To meet its burden, the defendant may rely on relatively detailed, non-conclusory declarations. McGehee v. CIA 697 F.2d 1095, 1102 (D.C.Cir.1983). In the FOIA context, summary judgment is justified if the affidavits or other documents describe the documents and “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C.Cir.2009) (citing Miller v. Casey, 730 F.2d 773, 776 (D.C.Cir.1984)). See also Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); accord Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C.Cir.1998). A court reviewing an agency’s motion for summary judgment under FOIA is required to view the facts in the light most favorable to the FOIA requester. See Burka v. U.S. Dep’t of Health and Human Servs., 87 F.3d 508, 514 (D.C.Cir.1996); Chaplin v. Stewart, 763 F.Supp.2d 1, 4-5 (D.D.C.2011). An agency’s declarations, however, are “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” Negley v. FBI, 169 Fed.Appx. 591, 594 (D.C.Cir.2006) (citing SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991)) (citation and internal quotation marks omitted); Holt v. Dep’t of Justice, 734 F.Supp.2d 28, 35-36 (D.D.C.2010); see Matter of Wade, 969 F.2d 241, 246 (7th Cir.1992) (“Without evidence of bad faith, the veracity of the government’s submissions regarding reasons for withholding the documents should not be questioned.”) (citation omitted). B. Analysis The defendant has invoked Exemptions 4 and 5 to withhold certain disputed documents in their entirety and partially to redact others. See generally Vaughn Index. Based on a review of the parties’ legal memoranda and the defendant’s declarations and in camera submissions, the Court concludes that Treasury’s withholdings and redactions are proper, except that the “Current" }, { "docid": "4170713", "title": "", "text": "response to a FOIA request, the defendant agency has the burden of justifying nondisclosure, and the court must ascertain whether the agency has sustained its burden of demonstrating that the documents requested are exempt from disclosure under FOIA. 5 U.S.C. § 552(a)(4)(B); Al-Fayed v. CIA, 254 F.3d 300, 305 (D.C.Cir.2001); Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C.Cir.1998). An agency may meet this burden by providing the requester with a Vaughn index, adequately describing each withheld document and explaining the exemption’s relevance. Summers, 140 F.3d at 1080; Vaughn, 484 F.2d 820 (fashioning what is now commonly referred to as a “Vaughn index”). The court may grant summary judgment to an agency on the basis of its affidavits if they: [ (a) ] describe the documents and the justifications for nondisclosure with reasonably specific detail, [ (b) ] demonstrate that the information withheld logically falls within the claimed exemption, and [ (c) ] are not controverted by either contrary evidence in the record nor by evidence of agency bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). While an agency’s affidavits are presumed to be in good faith, a plaintiff can rebut this presumption with evidence of bad faith. SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C.Cir.1991) (citing Ground Saucer Watch, Inc. v. CIA 692 F.2d 770, 771 (D.C.Cir.1981)). But such evidence cannot be comprised of “purely speculative claims about the existence and discoverability of other documents.” Id. 2. Legal Standard for Exemption 5 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.” NLRB 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" }, { "docid": "687185", "title": "", "text": "undated one-page memorandum from the DoD Office of the General Counsel to the Counsel to the President concerning “The President’s Action in Two Military Capital Cases.” (Pl.’s Reply at 3.) Defendants contend these documents are exempt under FOIA Exemption 5 because they are subject to the deliberative process privilege, the presidential communications privilege, the attorney-client privilege and/or the attorney work product doctrine. (Defs.’ Reply at 8-11.) Plaintiff disputes defendants’ privilege claims and argues that the documents are akin to presentence investigation reports (“PSRs”), which must be disclosed under FOIA. (PL’s Reply at 4, 7-10.) • ANALYSIS I. Legal Standard FOIA mandates that “each agency, upon any request for records ..., shall make the records promptly available to any person” for “public inspection and copying,” unless the records fall within one of the nine narrowly construed statutory exemptions. See 5 U.S.C. §§ 552(a)(2) & (a)(3)(A). FOIA is broadly conceived to permit access to official information as part of a “general philosophy of full agency disclosure.” EPA v. Mink, 410 U.S. 73, 80 & n. 6, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) (citation omitted); see also Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). An agency withholding information pursuant to a FOIA exemption bears the burden of justifying this decision, and challenges to an agency’s decision to withhold documents are reviewed de novo by the district court. See 5 U.S.C. § 552(a)(4)(B); King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C.Cir.1987). Summary judgment may be granted to the government in a FOIA case if “the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Greenberg v. U.S. Dep’t of Treasury, 10 F.Supp.2d 3, 11 (D.D.C.1998) (citation omitted). -Summary judgment may be awarded based solely on the information provided in declarations or affidavits when they explain “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld ■" }, { "docid": "23316349", "title": "", "text": "of the search conducted by the Department, claiming that the search was too narrowly circumscribed. Our review of the district court’s determination that the government was entitled to summary judgment based on its index and affidavits is de novo. See Licari v. Ferruzzi, 22 F.3d 344, 346-47 (1st Cir.1994) (summary judgment standard); Wiener v. FBI, 943 F.2d 972, 978 (9th Cir.1991) (FOIA standard). Our discussion begins with a review of general FOIA standards and principles. II. The Freedom of Information Act The FOIA requires government agencies to “make ... promptly available” to any person, upon request, whatever “records” the agency possesses unless those “records” fall within any of nine listed exemptions. 5 U.S.C. § 552(a)(3), (b). The statute’s basic purpose is “to ensure an informed citizenry, vital to the functioning of a democratic society,” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978), or, stated more specifically, “‘to open agency action to the light of public scrutiny,’ ” Department of Justice v. Reporters Committee, 489 U.S. 749, 772, 109 S.Ct. 1468, 1481, 103 L.Ed.2d 774 (1989) (citation omitted). The policy underlying FOIA is thus one of broad disclosure, and the government must supply any information requested by any individual unless it determines that a specific exemption, narrowly construed, applies. Aronson v. IRS, 973 F.2d 962, 966 (1st Cir.1992). The government bears the burden of demonstrating the applicability of a claimed exemption, Maynard v. CIA 986 F.2d 547, 557-58 (1st Cir.1993); In Re Department of Justice, 999 F.2d 1302, 1305 (8th Cir.1993) (en banc), and the district court must determine de novo whether the queried agency has met this burden, Aronson, 973 F.2d at 966. FOIA also provides for partial disclosure of documents that contain some exempted information, mandating that “all reasonably segregable, non-exempt portions of any agency records must, after deletion of the exempt material, be disclosed to a requester, 5 U.S.C. § 552(b),” Wightman v. Bureau of Alcohol, Tobacco & Firearms, 755 F.2d 979, 983 (1st Cir.1985). In determining segregability, “courts must construe the exemptions narrowly with the emphasis" }, { "docid": "20510618", "title": "", "text": "protected by the deliberative-process privilege and, thus, FOIA Exemption 5. LEGAL STANDARD FOIA requires federal agencies to release all records responsive to a proper request, except those protected from disclosure by any of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). A' district court is authorized “to enjoin [a federal] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B); see also Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). The agency has the burden of proving that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act’s inspection requirements.” Goland v. CIA 607 F.2d 339, 352 (D.C.Cir.1978) (internal citation and quotation marks omitted); accord Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 764 (D.C.Cir.2000). “FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009). Summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In a FOIA case, the district court may award summary judgment to an agency on the basis of information provided in affidavits or declarations that describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); accord Vaughn v. Rosen, 484 F.2d 820, 826 (D.C.Cir.1973). ANALYSIS Much of Mezerhane’s briefing tells the story of how USCIS “kept [her] and her family members in immigration limbo for more than three years,” Pl.’s Cross-Mot. for Summ. J. (“Pl.’s MSJ”) [ECF No. 18] at 2, despite the clear strength of their asylum applications (all of which" }, { "docid": "22594863", "title": "", "text": "5 U.S.C. § 552(a)(4)(B) had been wrongfully withheld. The complaint sought preliminary and permanent injunc-tive relief against the continued withholding of the information encompassed by his original FOIA requests. In 1995 the FBI and' plaintiff both moved for summary judgment. The district court, which had referred the matter to Magistrate Judge Leslie G. Foschio, granted the government’s motion in January 1998 after adopting the findings of the magistrate judge. Judgment was entered in favor of the government on January 26, 1998. This appeal followed. DISCUSSION I The Freedom of Information Act The Freedom of Information Act adopts as its most basic premise a policy strongly favoring public disclosure of information in the possession of federal agencies. See FLRA v. United States Dep’t of Veterans Affairs, 958 F.2d 503, 508 (2d Cir.1992); Donovan v. FBI, 806 F.2d 55, 57-58 (2d Cir.1986), abrogated on other grounds, United States Dep’t of Justice v. Landano, 508 U.S. 165, 170, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993). Specifically, FOIA requires that “each agency, upon any request for records which (A) reasonably describes such records and (B) is made- in accordance with published rules ..., shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3) (1994). In recognition of those interests that may at times conflict with this policy of full disclosure, FOIA also provides nine exemptions from its disclosure requirement, of which the following three are here implicated: the national security exemption, § 552(b)(1) (Exemption 1); the law enforcement exemption for personal privacy, § 552(b)(7)(C) (Exemption 7(C)); and the law enforcement exemption for confidentiality, § 552(b)(7)(D) (Exemption 7(D)). Agency information falling within the terms of these exemptions need not be disclosed. See FLRA, 958 F.2d at 508; Donovan, 806 F.2d at 58. The primary question presented in this case — the usual question raised in FOIA litigation — is whether the information withheld properly falls within the scope of the exemptions. FOIA clearly contemplates judicial review of agency decisions to withhold information and provides that a reviewing court “shall determine the matter de novo, and may examine the contents of such agency" }, { "docid": "2903834", "title": "", "text": "Inc., 130 F.3d 553, 559 (2d Cir.1997). The non-moving party must then “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). Mere speculation and conjecture will not suffice. See Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir.2003). FOIA affords the public access to virtually any federal government record that FOIA itself does not specifically exempt from disclosure. 5 U.S.C. § 552; Vaughn v. Rosen, 484 F.2d 820, 823 (D.C.Cir.1973). Here, in reviewing the CIA’s response to a FOIA request, the CIA has the burden of justifying nondisclosure, and the Court must ascertain whether the agency has sustained its burden of demonstrating that the documents requested are exempt from disclosure under FOIA and that the agency has adequately segregated exempt from non-exempt materials. 5 U.S.C. § 552(a)(4)(B); Al-Fayed v. C.I.A., 254 F.3d 300, 305 (D.C.Cir.2001). An agency may meet its burden by providing the requester with a Vaughn index, adequately describing each withheld document and explaining the reason for the withholding. James Madison Project v. C.I.A., 607 F.Supp.2d 109, 117 (D.D.C.2009) (citing Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C.Cir.1998)); see Vaughn, 484 F.2d 820 (fashioning what is now commonly referred to as a “Vaughn index”). The court may grant summary judgment to an agency on the basis of its affidavits if they: [ (1) ] describe the documents and the justifications for nondisclosure with reasonably specific detail, [ (2) ] demonstrate that the information withheld logically falls within the claimed exemption, and [ (3) ] are not controverted by either contrary evidence in the record nor by evidence of agency bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). B. Adequacy of the Search “In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to" }, { "docid": "1636491", "title": "", "text": "government agencies upon request. Mandatory disclosure enables the public to gain access to government information so that it can review the government’s performance of its statutory duties, thereby promoting governmental honesty. United States Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 495-96, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994). Accordingly, district courts have the authority to order the production of agency records where the agency improperly withholds their records. United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 141, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989); see also Katz v. Nat’l Archives & Records Admin., 862 F.Supp. 476, 478 (D.D.C.1994). However, an agency may withhold agency records which fall under one of the nine enumerated exemptions under the FOIA. See 5 U.S.C. § 552(b). The government has the burden of justifying its withholding of documents pursuant to one or more of these exemptions. Katz, 862 F.Supp. at 478. B. Summary Judgment Under the FOIA, a district court conducts de novo review to determine whether the government may properly withhold the requested records under any of FOIA’s nine exemptions. 5 U.S.C. §§ 552(a)(4)(B) & (b)(1)-(9). To sustain its burden of justifying nondisclosure of records under the FOIA, the government must submit affidavits or declarations describing the withheld material with reasonable specificity and the grounds for exemption. PHE, Inc. v. Dept. of Justice, 983 F.2d 248, 250 (D.C.Cir.1993). In order to withstand a motion for summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue of material fact in dispute. Fed. R.Civ.P. 56(e). Where the pleadings and affidavits show that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. See id.; see also Alyeska Pipeline Serv. Co. v. Envtl. Protection Agency, 856 F.2d 309, 313-14 (D.C.Cir.1988). III. DISCUSSION The defendant is withholding two documents in full and five documents in part, based on Exemption 3 in conjunction with Fed.R.Crim.P. 6(e), Exemption 5 in conjunction with the attorney work-product and deliberative process privileges, and Exemption" }, { "docid": "589469", "title": "", "text": "relevant documents,” based on R & HW’s requests. This they have done. If R & HW discover leads in the documents produced as a result of their FOIA requests, they may pursue those leads through a second FOIA request specifying locations to be searched. See Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 389 (D.C.Cir.1996). Accordingly, we hold the district court did not err in concluding the Agencies’ searches were adequate and in granting summary judgment as to that issue. B. Documents Withheld as Exempt R & HW also contend the district court erred in holding that the Agencies properly withheld, in whole or in part, hundreds of documents by claiming those documents were exempt from disclosure under § 552(b)(5) (“Exemption 5”). Exemption 5 permits an agency to withhold “inter-agency or intra-agency memoran dums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Id. It encompasses, inter alia, the deliberative process and attorney-client privileges. The government bears the burden of demonstrating that a requested document falls under the exemption. 5 U.S.C. § 552(a)(4)(B). 1. Adequacy of the Vaughn Index As noted earlier, the Agencies elected to provide a Vaughn index in lieu of producing withheld documents for in camera review by the district court. See Vaughn, 484 F.2d at 827. To substitute for in camera review, a Vaughn index must describe the withheld material with “reasonable specificity” so that the reviewing court can determine whether the exemption from disclosure applies. Ethyl Corp., 25 F.3d at 1249-50; see also Miscavige v. Internal Revenue Serv., 2 F.3d 366, 367-68 (11th Cir.1993). R & HW argue that the USPTO’s Vaughn index is facially inadequate to serve as a substitute for in camera review for two reasons. First, they assert several hundred document entries fail to contain the document’s author, recipient, or date, and are therefore insufficient under this Court’s analysis in Ethyl Corporation. Second, they contend several hundred document entries contain insufficient summaries of their content so as to notify the district court whether the document properly falls under Exemption 5." }, { "docid": "687186", "title": "", "text": "S.Ct. 827, 35 L.Ed.2d 119 (1973) (citation omitted); see also Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). An agency withholding information pursuant to a FOIA exemption bears the burden of justifying this decision, and challenges to an agency’s decision to withhold documents are reviewed de novo by the district court. See 5 U.S.C. § 552(a)(4)(B); King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C.Cir.1987). Summary judgment may be granted to the government in a FOIA case if “the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Greenberg v. U.S. Dep’t of Treasury, 10 F.Supp.2d 3, 11 (D.D.C.1998) (citation omitted). -Summary judgment may be awarded based solely on the information provided in declarations or affidavits when they explain “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld ■ logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981) (citations omitted). Summary judgment is inappropriate if the declarations are “conclusory, merely reciting statutory standards, or ... too vague or sweeping.” King, 830 F.2d at 219 (internal quotation marks and citation omitted). II. Exemption. 5 FOIA Exemption 5, on which defendants rely to withhold the four documents at issue, permits the government 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 has been interpreted to incorporate, inter alia, the presidential communications privilege, the attorney-client privilege, the work product doctrine, and the deliberative process privilege. Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 321 (D.C.Cir.2006). Defendants have invoked some or all of these privileges as to the four documents at issue. The test under" }, { "docid": "8590366", "title": "", "text": "Deck”), ¶¶ 1, 4.) The April’ Document is a one-page document with bulleted text that concerns the potential causes of a January 2005 incident of mass stranding of whales in North Carolina. (Rowles Deck ¶¶ 4, 5.) The parties dispute whether the April Document is a draft report with preliminary findings; a final report is expected to be issued in the first half of 2006. (Rowles Deck ¶ 3; PI. Stmt. ¶ 50; Def. Counterstmt. ¶ 50.) The April Document was later released to the plaintiff in a redacted form. (Armand Letter at 1.) The plaintiff has not sought to compel the production of any other documents that have been withheld in whole or in part as exempt from disclosure. II. Generally, a party is entitled to summary judgment when there is no “genuine issue of material fact,” and the undisputed facts warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA.” Carney v. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.1994); see also Ruotolo v. Dep’t of Justice, Tax Div., 53 F.3d 4, 9 (2d Cir.1995). The statute’s exemptions from the basic disclosure requirement “are to be narrowly construed with all doubts resolved in favor of disclosure.” Local 3, Int’l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir.1988); see also Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d Cir.2002). In this case, the defendants invoked the “deliberative process” privilege under FOIA’s Exemption 5 to withhold the April Email and April Document. Exemption 5 permits 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). The deliberative process privilege is “a" }, { "docid": "15075368", "title": "", "text": "sweep of FOIA in Church of Scientology International v. United States Department of Justice, 30 F.3d 224 (1st Cir.1994). Writing for the court, Judge Coffin noted that the statute’s basic purpose is to open agency action to the light- of public scrutiny. Id. at 228. The policy underlying the statute, he wrote, “is thus one of broad disclosure, and the government must supply any information requested by an individual unless it determines that a specific exemption, narrowly construed, applies.” Id. When an aggrieved party files an action under the Act because documents are withheld, the burden under the statute is on the agency to demonstrate the applicability of a claimed exemption. 5 U.S.C. § 552(a)(4)(B). The district court must make a de novo determination whether the agency has met its burden. Id. To facilitate a broad disclosure and assist the requester and, if necessary, a reviewing court, in determining whether the claim of exemption is justified, a practice has developed for the withholding agency to supply the requester with a Vaughn index. The index takes its name from Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), and requires a correlation of the information that an agency decides to withhold with the particular FOIA exemption and the agency’s justification for withholding. Maynard v. CIA, 986 F.2d 547, 556 (1st Cir.1993). The index includes “a general description of each document sought by the FOIA requester and explains the agency’s justification for nondisclosure of each individual document or portion of a document.” Church of Scientology lnt'l 30 F.3d at 228. Thus, the index compels the agency to scrutinize any material withheld in justification of its claimed exemption, assists the court in performing its duties, and gives the re quester as much information as is legally permissible. Id. Here, the DOl claims that 5 U.s.c. § 552(b)(5), which exempts from disclosure \"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,\" shields from disclosure the documents at issue. The Supreme Court has interpreted that exemption to protect from disclosure those" } ]

[ { "docid": "22681697", "title": "", "text": "officer who holds him in custody, are all, equally with individual citizens, under .a duty, from the discharge of which the State could not release them, to respect and obey the supreme law of the land, “ anything in the Constitution and laws of any State to the contrary notwithstanding.” 'And that equal power does not belong to‘ the courts and judges of the several States; that they cannot, under any authority conferred by the States, discharge from custody persons held .by authority of the courts of the United States, or of commissioners of such courts, or by officers of the General Government acting under its laws, results from’ the supremacy of the Constitution and laws of the United States. Ableman v. Booth, 21 How. 506; Tarble's Case, 13 Wall. 397; Robb v. Connolly, 111 U. S. 624. We are, therefore, of opinion that the Circuit Court has jurisdiction upon writ' of habeas corpus to inquire into the cause of appellant’s commitment, and to discharge him, if he be held in custody in violation of the Constitution. It remains, however, to be considered, whether the refusal of that court to issue the writ and to take the accused from the custody of the State officer can be sustained upon any .other ground than the one upon which it proceeded. If it can be, the judgment will not be reversed because an insufficient reason may have been assigned for the dismissal of the petitions. Undoubtedly the writ should be forthwith awarded, “ unless it appears from the petition itself that the party is not entitled thereto ; ” and the case summarily heard and determined “ as law and justice re'quire.” Such are the express requirements of the statute. If, however, it is apparent upon the petition, that the writ if issued dught not, on principles of law and justice, tp result in the immediate discharge of the accused from custody, the court is not bound to awai-d it as soon as the application is made. Ex parte Watkins, 3 Pet. 193, 201; Ex parte Milligan, 4 Wall. 2, 111. What" } ]

[ { "docid": "21943293", "title": "", "text": "Attorney for the Southern District of New York and the Chief United States Marshal show cause why they should not desist from interfering with and preventing the appearance and testimony of Detective Robert Leuci before a Grand Jury empanelled by this Court . . . . ” Although it is not denominated an application for a writ of habeas corpus ad testificandum, the show cause order plainly seeks to require federal authorities to produce a person in their custody before a state grand jury. That is precisely the object of such a writ. Elsewhere in papers submitted to this court the Special Prosecutor claims that he simply sought the opportunity to serve Leuci with a subpoena. Although such relief is nowhere requested in the show cause order, such omission is immaterial. Ableman v. Booth, infra, draws no distinction between writs of habeas corpus and other forms of state court process. . See, e. g., Warren, Federal and State Court Interference, 43 Harv.L.Rev. 345 (1930) ; Note, Limitations on State Judicial Interference with Federal Activities, 51 Columbia L.Rev. 84 (1951) ; Arnold, The Power of State Courts to Enjoin Federal Officers, 73 Yale L.J. 1385 (1964) ; 1 Moore’s Federal Practice ¶ 0.6 [5]. . Robb v. Connolly, 111 U.S. 624, 4 S.Ct. 544, 28 L.Ed. 542 (1884) ; Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886) ; Perez v. Rhiddlehoover, 247 F.Supp. 65 (E.D.La.1965) ; United States ex rel. Fort v. Meiszner, 319 F.Supp. 693 (N.D.Ill.1970). In Fort, supra, the federal court, citing Ableman and Tarble, issued an injunction restraining the execution of a writ of habeas corpus ad prosequendum on a federal prisoner temporarily removed from another jurisdiction. . “§ 650.30 Securing attendance of prisoner in federal institution as witness in criminal action in the state 1. When (a) a criminal action is pending in a court of record of this state by reason of the filing therewith of an accusatory instrument, or a grand jury proceeding has been commenced, and (b) there is reasonable cause to believe that a person confined in a" }, { "docid": "12605687", "title": "", "text": "90 L.Ed. 499. Cases cited supra, note 15, and Ex parte Milligan, 1866, 4 Wall. 2, 18 L.Ed. 281, and Duncan v. Kahanamoku, 1946, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688. Wolfson, Americans Abroad and Habeas Corpus; The Trap Begins to Close, 10 Fed.Bar.J. 69 (1948). Bl.Comm. *9; Story, Constitution of the United States § 1614, 5th Ed. 1891. 3 Bl.Comm. *131, *133. U.S.Const. Art. 1, § 9, cl. 2. Marshall, Ch.J., in Ex parte Boll-man and Ex parte Swartwout, 1807, 4 Cranch 75, 93, 2 L.Ed. 554, 561. See Dobie, Habeas Corpus in the Federal Courts, 13 Va.L.Rev. 433, 441 (1927). Ableman v. Booth, 1859, 21 How. 506, 523, 16 L.Ed. 169, 176; Robb v. Connolly, 1884, 111 U.S. 624, 4 S.Ct. 544, 28 L.Ed. 542. U.S.Const. Art. III, § 2, d. 1. U.S.Const. Art. III, § 1. Martin v. Hunter’s Lessee, 1816, 1 Wheat. 304, 4 L.Ed. 97; Story, Constitution of the United States §§ 1590-1597, 1702, 5th Ed. 1891. Ex parte Betz, 1916, 329 U.S. 672, 67 S.Ct. 39, 91 L.Ed. 593. if it were to be held that Congress failed to confer upon the inferior federal courts the full judicial power vested in those courts by the Constitution, and that the residuum not so conferred remains in the common law courts until its exercise by federal courts is authorized by the Congress (reasoning similar to that employed with reference to constitutional grants of legislative power), the United States District Court for the District of Columbia could issue the writ in cases falling within that classification. That court is not only a federal court but also has the full common law powers originally held by the courts of Maryland. Organic Act of 1801, §§ 3, 5, 2 Stat. 103, D.C.Code p. XXXIII (1940). Tarble’s Case, 1872, 13 Wall. 397, 20 L.Ed. 097. There are numerous other cases involving that problem. Discussion of this topic usually goes hack to the concurring opinion of Judge Cooley in Re Jackson, 1867, 15 Mich. 417, 433. McGowan v. Moody, 1903, 22 App. D.C. 148, rested upon the view that" }, { "docid": "12605686", "title": "", "text": "has a lawfully established court or courts of justice having authority to grant and issue the said writ, and to ensure the due execution thereof throughout such colony or dominion.” This enactment seems to establish that prior to that time the writ did issue to dominions where there were courts of competent jurisdiction and also that after that date the writ might issue to any place, within British jurisdiction, where there are no courts competent to issue and execute the writ. There is an English case, in 1939, in which Mr. Justice Cassels, in Vacation Court, held that although the writ would issue on behalf of aliens, it would not apply to an alien in a foreign country. The learned justice relied upon an expression of view by Lord Kennedy in Rex v. Crewe, supra. In re Ning Yi-Ching and others, 56 Times Law Rep. 3. See 6 Solicitor 198 (1939). Ex parte Quirin, 1942, 317 U.S. 1, 25, 63 S.Ct. 1, 87 L.Ed. 3; In re Yama-shita, 1946, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499. Cases cited supra, note 15, and Ex parte Milligan, 1866, 4 Wall. 2, 18 L.Ed. 281, and Duncan v. Kahanamoku, 1946, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688. Wolfson, Americans Abroad and Habeas Corpus; The Trap Begins to Close, 10 Fed.Bar.J. 69 (1948). Bl.Comm. *9; Story, Constitution of the United States § 1614, 5th Ed. 1891. 3 Bl.Comm. *131, *133. U.S.Const. Art. 1, § 9, cl. 2. Marshall, Ch.J., in Ex parte Boll-man and Ex parte Swartwout, 1807, 4 Cranch 75, 93, 2 L.Ed. 554, 561. See Dobie, Habeas Corpus in the Federal Courts, 13 Va.L.Rev. 433, 441 (1927). Ableman v. Booth, 1859, 21 How. 506, 523, 16 L.Ed. 169, 176; Robb v. Connolly, 1884, 111 U.S. 624, 4 S.Ct. 544, 28 L.Ed. 542. U.S.Const. Art. III, § 2, d. 1. U.S.Const. Art. III, § 1. Martin v. Hunter’s Lessee, 1816, 1 Wheat. 304, 4 L.Ed. 97; Story, Constitution of the United States §§ 1590-1597, 1702, 5th Ed. 1891. Ex parte Betz, 1916, 329 U.S. 672, 67 S.Ct. 39, 91" }, { "docid": "861797", "title": "", "text": "a Writ of Habeas Corpus and ordered that the state criminal proceedings be permanently stayed. This appeal followed. II. For state prisoners, federal habe-as corpus is substantially a post-convietion remedy, Peyton v. Rowe, 391 U.S. 54, 60, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1967); see 28 U.S.C. § 2254. Neverthe less, jurisdiction to issue the writ exists in the federal courts before a judgment is rendered in a state criminal proceeding. See 28 U.S.C. § 2241. In discussing exhaustion in the habeas corpus context, few cases discern between pre-trial and post-trial situations. With respect to state prisoners, it is only in the post-trial setting that exhaustion has been mandated by statute, 28 U.S.C. § 2254(b). 28 U.S.C. § 2241(c)(3), which empowers district courts to issue the writ before a judgment is rendered in a criminal proceeding, makes no reference to exhaustion. In this area, an exhaustion requirement has developed through decisional law, applying principles of federalism. The distinction between § 2241, pre-trial exhaustion, and § 2254, post-trial exhaustion, is recognized and discussed in Justice Rehnquist’s dissent in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 503, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). For our purposes, it is sufficient to recognize that, although there is a distinction in the statutory language of §§ 2254 and 2241, there is no distinction insofar as the exhaustion requirement is concerned. As early as 1886, the Supreme Court, in a pre-trial context held that: “. . . where a person is in custody, under process from a State court of original jurisdiction, for an alleged offense against the laws of such State, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United States, the Circuit Court has a discretion, whether it will discharge him, upon habeas corpus, in advance of his trial in the court in which he is indicted . . ..” Ex parte Royall, 117 U.S. 241, 252-53, 6 S.Ct. 734, 741, 29 L.Ed. 868 (1886). More recently, the pre-trial availability of ha-beas corpus has been affirmed in Braden v." }, { "docid": "21943278", "title": "", "text": "and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference. No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.” 62 U.S. at 523-524 [Emphasis supplied]. The restrictions which Ableman imposed on the reach of state court process were reaffirmed and strengthened in Tarble’s Case, 13 Wall. 397, 80 U.S. 397, 20 L.Ed. 597 (1872). There, one Edward Tarble had enlisted in the Army. His father sought and obtained from a state court a writ of habeas corpus discharging him on the grounds that he had enlisted as a minor without his father’s consent. The Supreme Court followed Ableman and reversed the judgment of the state court; it denied the authority of a state court to consider, by way of habeas corpus, the legality of any federal detention, be it judicial or executive. The Court placed particular emphasis on the supremacy of the Constitution and the concomitant supremacy of the federal government. “There are within the territorial limits of each State two governments, restricted in their spheres of action, but independent of each other, and supreme within their respective spheres. . . . Such being the distinct and independent character of the two governments, . it follows that neither can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the National government to preserve its rightful supremacy in cases of conflict of authority.” (80 U.S. at 406-407). Tarble expanded the holding of Ableman in two significant respects. First, the Court did not limit the definition of custody to confinement pursuant to a judgment of conviction in a federal district court; any constraint imposed by an agency of the federal government is sufficient. Second, the Court refused to limit Ableman “to cases where a prisoner is held in custody under" }, { "docid": "15765244", "title": "", "text": "the court, and the teste of the clerk, altered over into what is claimed to be a writ of personal replevin, suchas is authorized b}' the provisions of chapter 185, §§ 40-55, of the Public Statutes of the state. No other formality whatever preceded the delivery of the writ to the sheriff for service. The prisoner now claims that a writ manufactured in this way conferred authority on the sheriff to take out of prison and set at liberty a convict sentenced by a United States court for an offense against the United States. But by the very terms of the statute itself, the writ •does not extend to persons “in the custody of a public officer of the law by force of a lawful warrant or process, civil or criminal, issued by competent authority,” (section 40;) and as the prisoner was held under process issued by a court of the United States, exclusive jurisdiction to determine as to the scope and validity of the process was vested in the courts of the United States, and could not be exercised by the superior court. This is perfectly well settled by a long line of decisions Of -the supreme court of the United States, and is a rule recognized and acted upon by both state and federal courts everywhere. Ableman v. Booth and U. S. v. Booth, 21 How. 506; Tarble’s Case, 13 Wall. 397; Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. Rep. 355; Robb v. Connolly, 111 U. S. 624, 4 Sup. Ct. Rep. 544; Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. Rep. 734. All, therefore, that the superior court .could do when it was shown that the prisoner was held under the process of the district court would be to remand her to prison. It could have no authority whatever to discharge her. The process under which she was held was perfectly valid until set aside or pronounced insufficient by,a court of the United States. That there is a writ known to •the law of Massachusetts that can be sued but as of" }, { "docid": "22444039", "title": "", "text": "federal custody, the decision would have been correct. But the federal court glorified a fiction. (3) The holding that an accused in the state court has the right or the status to petition for habeas corpus in the federal court simply because he has been released from the federal court on probation is error. There is no basis for this position, as will subsequently be shown in this opinion. Suffice it to say, the holding on this point has been repudiated and is no longer the law in the circuit where it originated. There is a line of cases in which the rule of law that a res or an accused in physical possession of one sovereign cannot be taken away or proceeded against by another by judicial process is discussed. See Ableman v. Booth (United States v. Booth), 21 How. 506, 62 U.S. 506, 16 L.Ed. 169; In re Tarble’s Case, 13 Wall. 397, 80 U.S. 397, 20 L.Ed. 597; Covell v. Heyman, 111 U.S. 176, 4 S.Ct. 355, 28 L.Ed. 390. These decisions have been distorted in the argument. Since each of these opinions dealt with an attack by a state against federal officers in possession of the body of accused or a res, it is contended these establish a “federal supremacy,” where state and federal governments seek to proceed against a person alleged to have violated the laws of each sovereign, respectively. The idea that there is any so-called “federal supremacy” in this restricted area is distinctively repudiated in Covell v. Heyman, 111 U.S. 176, 182-183, 4 S.Ct. 355, 358, 28 L.Ed. 390, where it is said: “These courts [state and federal] do not belong to the same system, so far as their jurisdiction is concurrent; and although they co-exist in the same space, they are independent and have no common superior. They exercise jurisdiction, it is true, within the same territory but not in the same plane; and when one-takes into its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of the other, as if it had been carried physically" }, { "docid": "2479857", "title": "", "text": "District Court has asked us whether it has the authority to hold in abeyance this petition for the writ of habeas corpus, thus retaining jurisdiction over the case, while Victor attempts to exhaust his remedies in state court. This is a question of law that we review de novo. The statute governing habeas procedures provides as follows: An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. 28 U.S.C. § 2254(b) (1994). The exhaustion requirement “is grounded primarily upon the respect which federal courts have for the state judicial processes and upon the administrative necessities of the federal judiciary.” Wade v. Mayo, 334 U.S. 672, 679, 68 S.Ct. 1270, 1274, 92 L.Ed. 1647 (1948). A federal court may “properly intervene” only when “state remedies have been exhausted without the federal claim having been vindicated” because state and federal courts share the same responsibility to protect the constitutional rights of criminal defendants. Id. We cannot assume that state courts fail to carry out that responsibility. Id. It is the duty of this Court “to give preference to such principles and methods of procedure as shall seem to conciliate the distinct and independent tribunals of the states and of the Union, so that they may co-operate as harmonious members of a judicial system co-extensive with the United States, and submitting to the paramount authority of the same constitution.” Ex parte Royall, 117 U.S. 241, 252, 6 S.Ct. 734, 740-41, 29 L.Ed. 868 (1886) (quoting Taylor v. Carryl, 61 U.S. (20 How.) 583, 595, 15 L.Ed. 1028 (1857)). “[0]nly ‘in rare cases where exceptional circumstances of peculiar urgency are shown to exist’” will a federal court entertain an unexhausted claim and thereby “interfere with the administration of justice in the state" }, { "docid": "23093678", "title": "", "text": "attack, but only in the event the court rendering the judgment of conviction was without jurisdiction to do so. See Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441 (1963). Through the first part of this century judges became increasingly inventive in classifying errors as “jurisdictional” until, in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), the Supreme Court held that a constitutional error could support issuance of the writ even if the trial court unquestionably had jurisdiction. Congress codified Brown in 1966 by amending 28 U.S.C. § 2254, and the parallel statute for federal prisoners, 28 U.S.C. § 2255, establishes the same scope of review as § 2254. United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 272, 96 L.Ed. 232 (1952). Both statutes, however, deal with persons “in custody”, and their relaxation of the finality rules is justified by the ongoing deprivation of liberty. A fresh look may prevent the imposition of unjustified, yet continuing, punishment. A criminal defendant fined but not imprisoned is not suffering an ongoing punishment and may not attack his sentence under these statutes. Wright v. Bailey, 544 F.2d 737, 739 & n. 2 (4th Cir.1976) (collecting cases). Once a defendant has been released from prison and relieved of civil disabilities, even a collateral attack begun during confinement becomes moot, showing that only the continuing interference with a liberty interest justifies relit-igation. Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982). Civil disabilities (collateral consequences) may prevent a challenge begun during imprisonment from becoming moot on release, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), but civil disabilities alone are not “custody” authorizing collateral litigation. Westberry v. Keith, 434 F.2d 623 (5th Cir.1970) (fine and revocation of drivers’ license do not add up to custody). The norm of finality, with an exception while custody or another deprivation of liberty continues, is the background for understanding the writ of error coram no-bis. Judgments are not final on the day when" }, { "docid": "6231489", "title": "", "text": "751 (U.S. 1980) (defendant may not receive greater sentence than legislature has authorized). In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (U.S. 1980), Justice Blackmun, in concurring, stated his view that “the only function the Double Jeopardy Clause serves in cases challenging multiple punishments is to prevent the prosecutor from bringing more charges, and the sentencing court from imposing greater punishments, than the Legislative Branch intended.” Id. at 4409. A constitutional provision, however, is also intended to act as a constraint on legislative action. . In Fox, petitioner had been convicted of passing a counterfeit United States coin in violation of an Ohio State statute. She contended that because the Fifth Amendment prohibited successive state and federal prosecutions, the Court should declare the Ohio statute unconstitutional under the Supremacy Clause in order to preserve the effectiveness of federal law enforcement. In United States v. Marigold, 50 U.S. (9 How.) 560, 13 L.Ed. 257 (1850), the Supreme Court affirmed a conviction under the federal counterfeiting statute discussed in Fox, admitting that “the same act might constitute an offense against both the State and Federal governments, and might draw to its commission the penalties denounced by either....” 50 U.S. at 569. See also Bartkus v. Illinois, 359 U.S. 121, 159 n.25, 79 S.Ct. 676, 699, n.25, 3 L.Ed.2d 684 (1959) (Black, J., dissenting) (citing cases). . It is noteworthy that another pre-Civil War case, Ableman v. Booth, 62 U.S. (21 How.) 506, 507, 16 L.Ed. 169 (1859), which was an important source for the dual sovereignties doctrine (and which held the Fugitive Slave Act of 1850 unconstitutional), has been treated gingerly by later courts. Thus the broad assertion of federal habeas corpus power in Booth was restated after the Civil War in Tarble’s Case, 80 U.S. (13 Wall.) 397, 20 L.Ed. 597 (1872), to avoid reliance on Booth with its intimate connections to slavery. Ironically, Tarble’s Case itself was a questionable decision. The Constitution does not foreclose, nor had Congress legislated against, the right of state courts to inquire into the jurisdiction of a federal court" }, { "docid": "2368127", "title": "", "text": "to vacate or correct his sentence upon the ground “that the sentence was imposed in violation of the Constitution or laws of the United States . . . .” See Hill v. United States, 368 U.S. 424, 426-27, 82 S.Ct. 468, 470, 7 L.Ed.2d 417 (1962). The third paragraph of the statute deals with the action to be taken on such a motion: “If the court finds . . . that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or . correct the sentence as may appear appropriate.” (Emphasis supplied.) Section 2255 was designed to revise the procedure by which federal prisoners seek the relief of habeas corpus. It was intended “to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined.” Kaufman v. United. States, 394 U.S. 217, 222, 89 S.Ct. 1068, 1071, 22 L.Ed.2d 227 (1969). This court, having sentenced the defendant, may at any time review the sentence it imposed and correct the denial of a constitutional right violated by the imposition of the sentence itself. The statutory right under section 2255 is not merely to a federal forum but to “full and fair consideration of constitutional claims.” Kaufman v. United States, supra, 394 U.S. at 228, 89 S.Ct. at 1075. Cf. S. Fuld, Writ of Error Coram Nobis, 117 N.Y.L.J., Nos. 130-132, June 5, 6, 7 (1947); 28 U.S.C. § 1651, 28 U.S.C. § 2241(c)(3). Habeas corpus, which section- 2255 incorporates, “is not a static concept, but expands and develops as new problems arise.” Price v. Johnson, 334 U.S. 266, 282, 68 S.Ct. 1049, 1058, 92 L.Ed. 1356 (1948). It has been utilized in claims involving rights of members of the armed forces seeking release (In re Tarble, 18 Wall. (80 U.S.) 397, 20 L.Ed. 597 (1872); Cox v. Wedemeyer, 192 F.2d 920" }, { "docid": "8286779", "title": "", "text": "in any respect, in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference. No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.” 21 How. at 523-524. (Emphasis supplied.) Similarly, the Supreme Court ruled in 1871 that a state judge has no jurisdiction to issue a writ of habeas corpus, or to continue proceedings under the writ when issued, for the release of a person held under the' authority of the United States by an officer of that government. Tarble’s Case, 13 Wall. 397, 411-412, 20 L.Ed. 597 (1871). These decisions have not been challenged or even questioned during the century that has elapsed since they were rendered, but they have been cited as respected authority on issues concerning the supremacy of federal law over conflicting state law in a number of subsequent Supreme Court decisions. E. g., Cooper v. Aaron, 358 U.S. 1, 18, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Feldman v. United States, 322 U.S. 487, 491, 64 S.Ct. 1082, 88 L.Ed. 1408 (1944). This court concludes that the Circuit Court of Cook County lacked jurisdiction to issue a writ of habeas corpus ad prosequendum upon a federal marshal having custody of the petitioner under an order issued by a federal court. The state writ is therefore null and void on its face, and the writ of injunction should issue for this reason alone. II. The petitioner asserts that he has a constitutional right to contest the extradition warrant issued by the State of Illinois to the State of New York. He bases his claim upon Article 4, Section 2, Clause 2 of the United States Constitution, and upon Title 18, United States Code, Section 3182. However, the United States Supreme Court held long ago that removal" }, { "docid": "3125639", "title": "", "text": "any event. It conclusively appears from Hawk’s petition that he is confined by the State of Nebraska in the State Penitentiary for a violation of the laws of the State and under a judgment entered and a commitment issued by a court of the State. This is not one of those “rare cases where exceptional circumstances of peculiar urgency are shown to exist,” in which a federal court may, in the exercise of a sound discretion, issue a writ of habeas corpus on the application of one in the custody of a state, and thus interfere with the orderly administration by the state of its criminal laws. In United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 3, 70 L.Ed. 138, the Supreme Court of the United States said: “The rule has been firmly established by repeated decisions of this court that the power conferred on a federal court to issue a writ of habeas corpus to inquire into the cause of the detention of any person asserting that he is being held in custody by the authority of a state court in violation of the Constitution, laws, or treaties of the United States, is not unqualified, but is to be exerted in the exercise of a sound discretion. The due and orderly administration of justice in a state court is not to be thus interfered with save in rare cases where exceptional circumstances of peculiar urgency are shown to exist. Ex parte Royall, 117 U.S. 241, 250-253, 6 S.Ct. 734, 29 L.Ed. 868; In re Wood, 140 U.S. 278, 289, 11 S.Ct. 738, 35 L.Ed. 505; In re Frederich, 149 U.S. 70, 77, 78, 13 S.Ct. 793, 37 L.Ed. 653; [People of State of] New York v. Eno, 155 U.S. 89, 98, 15 S.Ct. 30, 39 L.Ed. 80; Whitten v. Tomlinson, 160 U.S. 231, 240-242, 16 S.Ct. 297, 40 L.Ed. 406; Baker v. Grice, 169 U.S. 284, 290, 18 S.Ct. 323, 42 L.Ed. 748; Tinsley v. Anderson, 171 U.S. 101, 104, 105, 18 S.Ct. 805, 43 L.Ed. 91; Davis v. Burke, 179 U.S. 399," }, { "docid": "21943294", "title": "", "text": "Columbia L.Rev. 84 (1951) ; Arnold, The Power of State Courts to Enjoin Federal Officers, 73 Yale L.J. 1385 (1964) ; 1 Moore’s Federal Practice ¶ 0.6 [5]. . Robb v. Connolly, 111 U.S. 624, 4 S.Ct. 544, 28 L.Ed. 542 (1884) ; Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886) ; Perez v. Rhiddlehoover, 247 F.Supp. 65 (E.D.La.1965) ; United States ex rel. Fort v. Meiszner, 319 F.Supp. 693 (N.D.Ill.1970). In Fort, supra, the federal court, citing Ableman and Tarble, issued an injunction restraining the execution of a writ of habeas corpus ad prosequendum on a federal prisoner temporarily removed from another jurisdiction. . “§ 650.30 Securing attendance of prisoner in federal institution as witness in criminal action in the state 1. When (a) a criminal action is pending in a court of record of this state by reason of the filing therewith of an accusatory instrument, or a grand jury proceeding has been commenced, and (b) there is reasonable cause to believe that a person confined in a federal prison or other federal custody, either within or outside this state, possesses information material to such criminal action or proceeding, and (c) the attendance of such person as a witness in such action or proceeding is desired by a party thereto, a superior court, at a term held in the county in which such action or proceeding is pending, may issue a certificate, known as a writ of habeas corpus ad testificandum, addressed to the attorney general of the United States, certifying all such facts and requesting the attorney general of the United States to cause the attendance of such person as a witness in such court for a specified number of days under custody of a federal public servant. 2. Such a certificate may be issued upon application of either the people or a defendant, demonstrating all the facts specified in subdivision one. 3. Upon issuing such certificate, the court may deliver it, or cause or authorize it to be delivered, to the attorney general of the United States or to his representative" }, { "docid": "13493761", "title": "", "text": "the United States and is inflexible and without exception.’ ”) (quoting Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884)). The judicial power of federal courts is limited to “cases and controversies.” See U.S. CONST. art. III, § 2, cl. 1; Already, LLC v. Nike, Inc., — U.S. -, 133 S.Ct. 721, 726, 184 L.Ed.2d 553 (2013). A judicial decision rendered in the absence of a case or controversy is advisory, and federal courts lack power to render advisory opinions. See U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., 508 U.S. 439, 446, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993). A. This case arises under “[t]he Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), [which] enacted the present 28 U.S.C. § 2254” and § 2255. Lindh v. Murphy, 521 U.S. 320, 322, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Section 2254 gives federal courts jurisdiction to grant habeas relief to prisoners held in state custody, and § 2255 does the same for federal prisoners. It is well-settled that a § 2254 petition submitted by a state prisoner initiates a civil, rather than criminal, action for relief. See Henderson v. Frank, 155 F.3d 159, 167 (3d Cir.1998); Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 269, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Ex parte Tom Tong, 108 U.S. 556, 559-60, 2 S.Ct. 871, 27 L.Ed. 826 (1883) (“The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right ... ”). Therefore, no case or controversy generally exists before an actual § 2254 petition is filed. Cf. Barden v. Keohane, 921 F.2d 476, 477 n. 1 (3d Cir.1990) (“[J]urisdietion over a petition for a writ of habeas corpus is determined when the petition is filed.”) (citing Ross v. Me-bane, 536 F.2d 1199 (7th Cir.1976)). However, courts consider, among other things, judicial economy and the" }, { "docid": "21943279", "title": "", "text": "it judicial or executive. The Court placed particular emphasis on the supremacy of the Constitution and the concomitant supremacy of the federal government. “There are within the territorial limits of each State two governments, restricted in their spheres of action, but independent of each other, and supreme within their respective spheres. . . . Such being the distinct and independent character of the two governments, . it follows that neither can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the National government to preserve its rightful supremacy in cases of conflict of authority.” (80 U.S. at 406-407). Tarble expanded the holding of Ableman in two significant respects. First, the Court did not limit the definition of custody to confinement pursuant to a judgment of conviction in a federal district court; any constraint imposed by an agency of the federal government is sufficient. Second, the Court refused to limit Ableman “to cases where a prisoner is held in custody under undisputed lawful authority of the United States, as distinguished from his imprisonment under claim and color of such authority.” In other words, state inquiry must cease when an arguable claim of federal authority is asserted, whether or not such claim ultimately proves to be valid. Since Ableman and Tarble, there has been no serious challenge to the principle that state courts possess no power to remove a person from the jurisdiction of federal courts or agencies by writ of habeas corpus. The principle has been consistently reaffirmed both in academic fora and by various courts which have addressed the question. It is, in fact, simply a variant of the well established doctrine that the court which first assumes control over the subject matter of litigation — be it persons or property — shall retain exclusive jurisdiction over it until it has exhausted its remedies. See Covell v. Heyman, 111 U.S. 176, 4 S.Ct. 355, 28 L.Ed. 390 (1884). In speaking of a federal prisoner in Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66" }, { "docid": "21589135", "title": "", "text": "petitioner. . The exhaustion provision of the applicable statute provides: An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. 28 U.S.C. § 2254(b). The doctrine, in one form or another, has been a part of American habeas jurisprudence at least since the time of the first Justice Harlan. See Ex parte Royall, 117 U.S. 241, 250-54, 6 S.Ct. 734, 739-41, 29 L.Ed. 868 (1886). . We recognize that the rubric of exhaustion has for decades produced considerable controversy within the political, judicial, and academic communities. At times, each community has displayed mistrust of the states' willingness to respect rights due criminal defendants under federal law; and on occasion, each has urged that federal courts exercise greater supervisory powers over the end results emanating from the state criminal processes. See generally Yackle, The Exhaustion Doctrine in Federal Habeas Corpus: An Argument for a Return to First Principles, 44 Ohio St.L.J. 393 (1983). Be that as it may, the Court's present-day posture is that, despite this tumultuous history, the state courts have the obligation, and must be trusted, to take first cognizance of a defendant’s claim of federal right. See, e.g., Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 1203-04, 71 L.Ed.2d 379 (1982) (“A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error.”). While exhaustion is not a jurisdictional bar, only in rare cases will federal courts reach an unexhausted claim. Id. at 515-16, 102 S.Ct. at 1201-02; cf. Granberry v. Greer, 481 U.S. 129, 131-35, 107 S.Ct. 1671, 1673-76, 95 L.Ed.2d 119 (1987). . Clay illustrates such a possibility. There, the district" }, { "docid": "16283752", "title": "", "text": "at the previous trial. They also alleged that under § 1983 they were entitled to a declaratory order dismissing the indictment or both declaratory and injunctive relief preventing the Commonwealth from relitigating issues previously determined. Finding that it had jurisdiction to address these claims, the district court, 507 F.Supp. 975, concluded that the double jeopardy clause does not require that the prosecution be barred. It did, however, issue an order stating that the Commonwealth is foreclosed from claiming or arguing that appellants set the fire or aided, counseled or procurred the burning of the building. II. We address first the question whether the double jeopardy clause requires that the prosecution on the conspiracy charge be barred by the acquittal on the substantive crimes. This question is framed by appellants both as a petition for a writ of habeas corpus under 28 U.S.C. §§ 2241 and 2254 and as a prayer for a declaratory order under 42 U.S.C. § 1983. With respect to the petition for a writ of habeas corpus, our primary concern is whether appellants have properly exhausted their claim. Exhaustion presents a peculiar question in the context of a petition for a writ of habeas corpus brought before the state proceeding has even begun. Section 2254, which requires exhaustion, applies only to petitions filed after the state has rendered a judgment and hence affords neither a source of power nor a definition of exhaustion applicable to this case. Section 2241, which empowers courts to issue writs and makes no mention of exhaustion, has been interpreted to allow a court to grant a writ before a defendant has exhausted his claim at trial, but only in unusual circumstances. See Ex Parte Royall, 117 U.S. 241, 251-53, 6 S.Ct. 734, 740-41, 29 L.Ed. 868 (1886). The Supreme Court has reasoned that federal courts, despite their power to issue writs, must respect the authority and ability of state courts to protect constitutional rights in the first instance. See Braden v. 30th Judicial Circuit of Kentucky, 410 U.S. 484, 489-90, 93 S.Ct. 1123, 1126-27, 35 L.Ed.2d 443 (1973); Ex Parte Royall, supra," }, { "docid": "847756", "title": "", "text": "ORDER DAUGHERTY, Chief Judge. The court has examined the “Petition for Writ of Habeas Corpus and/or Writ of Mandamus and/or Writ of Prohibition” together with Motion for Leave to Proceed in Forma Pauperis and required affidavit presented to the clerk of this court. It appears therefrom that the petitioner is a prisoner confined in the Oklahoma State Penitentiary at Mc-Alester, Oklahoma who seeks in this proceeding to have dismissed the charge of Escape now pending against him in the District Court of Oklahoma County, Case No. CRF-73-2203. He alleges the charge has been pending since August 10, 1973 and the preliminary hearing was not conducted until July 12, 1974. He further alleges that he has not yet been brought to trial although he was scheduled for trial on September 25, 1974 and again on November 20, 1974. It further appears that prior to each of these scheduled trial dates the petitioner filed in the Court of Criminal Appeals for the State of Oklahoma application for a Writ of Mandamus directing the District Court of Oklahoma County to Dismiss said case. His last application was not denied until November 25, 1974. As grounds for relief herein he contends that he has been denied his constitutional rights to effective assistance of counsel, speedy trial and witnesses in his behalf. The petitioner has not exhausted the remedies available to him in the courts of the State of Oklahoma. 28 U. S.C.A. § 2254 does not apply since it pertains only to a prisoner challenging his detention pursuant to a judgment of conviction in a state court. Although this court may have jurisdiction under 28 U.S.C. § 2241(c) (3) it should not, absent extraordinary circumstances, interfere with the judicial administration and process of state courts prior to trial and conviction, even though the state prisoner claims that he is being held in violation of the Constitution. Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886). In Trigg v. Moseley, 433 F.2d 364, 366 (CA 10 1970) the court stated: “A basic prerequisite for federal habeas relief is that the prisoner" }, { "docid": "22727485", "title": "", "text": "trial on that charge. Smith v. Hooey, supra. There is also no doubt that such a prisoner may petition a federal district court for a writ of habeas corpus prior to trial. See 28 U. S. C. § 2241 (c)(3). What the Court here disregards, however, is almost a century of decisions of this Court to the effect that federal habeas corpus for state prisoners, prior to conviction, should not be granted absent truly extraordinary circumstances. In Ex parte Royall, supra, the petitioner was indicted in state court for selling a bond coupon without a license. Prior to trial on that indictment, he petitioned in federal court for a writ of habeas corpus, contending that the statute upon which the indictment was predicated violated the contract clause, insofar as it was applied to owners of coupons. In holding that the (then) Circuit Court had the power to issue the writ but had properly exercised its discretion not to do so, the Court wrote: “That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution.” 117 U. S., at 251. The judicial approach set forth in Ex parte Royall— that federal courts should not, absent extraordinary circumstances, interfere with the judicial administration and process of state courts prior to trial and conviction, even though the state prisoner claims that he is held in violation of the Constitution — has been consistently followed. Cook v. Hart, 146 U. S. 183 (1892) (custody alleged to violate Art. 4, § 2); New York v. Eno, 155 U. S. 89 (1894) (custody alleged to violate Supremacy Clause); Whitten v. Tomlinson, 160 U. S. 231 (1895) (custody alleged in violation of Constitution due to improper extradition); Drury v. Lewis, 200 U. S. 1 (1906) (custody alleged to violate Supremacy Clause). Cf. Ex parte Fonda, 117 U." } ]

[ { "docid": "20796685", "title": "", "text": "also testified regarding her conversation with Agent Gomez regarding billing inquiries. Appellants allege that she tailored this testimony on rebuttal to smooth over the inconsistencies in the testimony of Agent Gomez and Jeryl Robinson. Rather than moving to exclude her later testimony, appellants should have remedied any error occurring from this influence on her testimony through the usual remedy of cross-examination. Id. at 922. Appellants’ challenges to the district court’s handling of these rebuttal witnesses are rejected. VII. CROSS-EXAMINATION OF DEFENSE WITNESSES Defense witness Jeryl Robinson testified that Dr. Erickson told her to call Dr. Lyle’s office at the EIU for billing advice which she adopted in July 1992. On cross-examination, the government asked Ms. Robinson whether anyone at Dr. Lyle’s office told her that the office had been under investigation in the mid-1980’s for its billing practices, and that it later discontinued those practices. The defense objected to this question and requested a mistrial on the grounds that the question was deliberately prejudicial, that there was no reason for a bookkeeper to know about the investigation, and that there was no reasonable foundation for the question. The district court overruled the objection and refused to grant a mistrial. A court’s control over the manner of questioning at trial is reviewed for an abuse of discretion. United States v. Perkins, 937 F.2d 1397, 1405 (9th Cir.1991). The district court’s decision denying a motion for mistrial is subject to an abuse of discretion standard. United States v. Homick, 964 F.2d 899, 906 (9th Cir.1992). It, is relevant whether the Center had knowledge that the billing model that it adopted in 1992 had come under scrutiny. The district court abused its discretion by allowing the prosecutor’s question without requiring the prosecutor to develop,a foundation for the question. However, this error was harmless. The objection was to a few sentences in a trial that lasted a week and spans nearly 1000 pages of testimony. See United States v. Gering, 716 F.2d 615, 621 (9th Cir.1983). Improper prosecutorial remarks alone do not justify reversal in an otherwise fair proceeding. Hill, 953 F.2d at 460." } ]

[ { "docid": "18059356", "title": "", "text": "Federal Rules of Evidence and we therefore treat it as such. When the defendant has preserved his objections, the district court’s evidentiary rulings are reviewed for abuse of discretion. United States v. Jiménez, 419 F.3d 34, 43 (1st Cir.2005). The government contends that Ralph forfeited this claim below, thereby rendering it subject to plain error review. See United States v. Chaney, 647 F.3d 401, 406 n. 6 (1st Cir. 2011) (observing that “failure to raise an argument or right due to inattention or neglect constitutes forfeiture” and issue is reviewed for plain error). We need not resolve this question, however, since the district court’s admission of these documents was not an abuse of discretion. Ralph’s first challenge goes to the authenticity of the Lindley files. To introduce' a piece of evidence, the proponent must demonstrate' “that the item is what the proponent claims it is.” Fed.R.Evid. 901(a). This relatively undemanding rule “requires the trial court to determine if there is a- reasonable probability that the evidence is what it is purported to be.” Unitd States v. Carlos Cruz, 352 F.3d 499, 506 (1st Cir.2003) (quoting United States v. Neal, 36 F.3d 1190, 1210 (1st Cir.1994)) (quotation marks omitted). The proponent “need not rule out all possibili ties inconsistent with authenticity” in order to meet this burden. Asociación De Periodistas De P.R. v. Mueller, 680 F.3d 70, 79 (1st Cir.2012) (quoting United States v. Alicea-Cardoza, 132 F.3d 1, 4 (1st Cir.1997)) (quotation marks omitted). Evidence can be authenticated in numerous ways, including through the testimony of a- witness with kriowledge “that an item is what it is claimed to be.” Fed.R.Evid. 901(b)(1). The record shows that the government laid a sufficient foundation for the admission of the Lindley files. On the second day of trial, before testimony began, the parties had a colloquy with the district court regarding the files. When the government sought to have them admitted provisionally before their authentication, Ralph objected to “the use of documents that are not testified to by anybody and ... the authenticity of which is in dispute, at least from coming in without" }, { "docid": "11708601", "title": "", "text": "China. The jury might have arrived at this conclusion, either without, or in conjunction with, the defense’s claim that Tin Yat Chin lacked the Mandarin language abilities or accent of the swindler. Therefore, we lack confidence that the verdict was not substantially affected by the district court’s exclusion of the receipts. In summary: (1) the receipts were (a) authenticated under Rule 901; and (b) admissible as non-hearsay; and (2) their exclusion was not harmless error. On remand, the district court should admit the receipts into evidence with an appropriate instruction on the jury’s role in deciding their ultimate reliability. B. Inadequate Proffer of Expert Testimony Tin Yat Chin also contends that the district court’s limitation on Tay’s expert testimony was an unreasonable application of Fed.R.Evid. 702. We disagree, but Tin Yat Chin is permitted on remand to fortify his proffer to establish, if possible, the admissibility of Tay’s previously excluded testimony. We review a district court’s evidentiary rulings under an abuse of discretion standard. See United States v. Taubman, 297 F.3d 161, 164 (2d Cir.2002). A judge has not abused her discretion merely because we would have disagreed with her in the first instance. Id. Admission of expert testimony under Rule 702 will be reversed only for manifest error. United States v. Schatzle, 901 F.2d 252, 257 (2d Cir.1990). Rule 702 requires that expert testimony be: (1) “based upon sufficient facts or data”; (2) “the product of reliable principles and methods”; and (3) “applied ... reliably to the facts of the case.” Fed. R.Evid. 702; see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 & n. 7, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)(holding that pursuant to the trial judge’s “gatekeeping responsibility,” she “must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable”). To determine whether a witness' qualifies as an expert, courts compare the area in which the witness has superior knowledge, education, experience,- or skill with the subject matter of the proffered testimony. See United States v. Diallo, 40 F.3d 32, 34 (2d Cir.1994). The district court held" }, { "docid": "3585857", "title": "", "text": "would be less inclined to disturb a trial judge’s exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empaneling of a jury.” United States v. Gonzalez-Soberal, 109 F.3d 64, 69-70 (1st Cir.1997) (internal quotation marks omitted). There was no abuse of discretion here. 2. Authentication of Prescriptions by Vázquez-Senti Appellant’s challenges to his conviction include preserved evidentiary objections, reviewable for abuse of discretion. United States v. Mare, 668 F.3d 35, 38 (1st Cir.2012). Of course, even if such an error occurred, it would not serve to overturn a conviction if it ultimately proved harmless. See United States v. Walker, 665 F.3d 212, 231-32 (1st Cir.2011). An error is harmless if we can conclude “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Id. at 231 (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (internal quotation marks omitted). The district court admitted into evidence approximately 2,700 prescriptions written by Vázquez-Senti and seized by government agents from computers at the three different pharmacies from which appellant obtained drugs. They were admitted into evidence pursuant to Federal Rule of Evidence 901(b)(1), which allows authentication through testimony of a witness with knowledge of the nature of the item. The government provided a foundation for the prescriptions through testimony by Vázquez-Senti, who reported that he wrote them and gave them to appellant and others. Vázquez-Senti testified that the prescriptions were medically unnecessary and that he took the names appearing on them from the lists that appellant provided to him. On appeal, appellant argues that it was error for the court to admit the prescriptions without authenticating testimony from someone with knowledge of how the prescriptions were presented and filled at each pharmacy. Rule 901(b)(1) permits authentication of evidence on the basis of “testimony of a witness with knowledge” that the evidence is what it is claimed to be. Thus, “[a] document can be authenticated [under Rule 901(b)(1) ] by a witness who wrote it," }, { "docid": "9723986", "title": "", "text": "court’s admission of extrinsic evidence. In ruling on these questions, the law allows the district court broad discretion, and neither defendant has demonstrated any abuse of that discretion. United States v. Banks, 475 F.2d 1367, 1368 (5th Cir.1973); United States v. Dinitz, 538 F.2d 1214, 1224 (5th Cir.1976). (d) Likewise, defendant Roberts has failed to show any abuse of discretion in the district court’s limitation on the cross-examination of Government witnesses Hector Serrano and Herbert Reynolds. See Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931). The discretion afforded the trial court is especially broad when it comes to controlling cross-examination for impeachment purposes. United States v. Burke, 738 F.2d 1225, 1227 (11th Cir.1984). (e) There was no plain error in admitting, without objection, the guilty pleas of certain co-conspirators. It was clear through pre-trial motions that the defense counsel would examine these witnesses as to their plea bargains, as they did, so the Government’s introducing that evidence did not affect the substantial rights of the defendants. United States v. Cortez, 757 F.2d 1204, 1207 (11th Cir.), cert. denied, 474 U.S. 945, 106 S.Ct. 310, 88 L.Ed.2d 287 (1985). (f) The Government correctly argues that the testimony of Gustavo Fernandez related to the charged offenses and was not admitted as prior act testimony under Fed.R.Evid. 404(b). See United States v. Weeks, 716 F.2d 830, 832 (11th Cir.1983). The testimony of Donald Faison about other similar crimes of Casamayor meets the tests set forth in United States v. Beechum, 582 F.2d 898 (5th Cir.1978) (in banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), for admission under Fed.R.Evid. 404(b), as does any statement made by the Government in its rebuttal closing argument regarding Diaz. (g) Kathy Hybarger testified that she had received cocaine from and “did” cocaine with Casamayor. We need not here decide whether the Government is correct in arguing the admissibility of this testimony to rebut the testimony of Casa-mayor’s witness that he was a law-abiding citizen, because the district court later struck the testimony and instructed the" }, { "docid": "2937163", "title": "", "text": "bank, there is not one word about checks in his grand jury testimony quoted in Count 4. The examiner should have been more precise in his questioning. “It is the responsibility of the lawyer to probe .... If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination.” Bronston, 409 U.S. at 358-59, 93 S.Ct. at 600. The questioner was not precise. He failed “to pin the witness down to the specific object of the questioner’s inquiry. Id. at 360, 93 S.Ct. at 600-601. Count 4 fails to set out in “stark contrast” the allegedly false statements and the' objective truth. Tonelli, 577 F.2d at 195. Therefore, the conviction is reversed. See United States v. Slawik, 548 F.2d 75, 83 (3d Cir.1977). ADMISSION OF TESTIMONY CONCERNING THE POSTMARK The trial judge allowed the managing director of the International Investment Bank in Anguilla to testify, over objection, that he had received two letters purporting to be from a Mr. Templeton, one of which bore a Santa Barbara postmark. The letters were never produced at trial. Appellants raise two objections to the admission of the banker’s testimony. First, they contend that because the postmark was not authenticated at trial, the trial judge abused his discretion by admitting the testimony about it. Second, appellants argue that the postmark was an out of court statement offered to prove the truth of the matter it asserted — i.e., that the postmark was hearsay. See Fed.R.Evid. 801. They contend that since the postmark did not fall within any of the exceptions to the hearsay rule, the trial judge abused his discretion by admitting the banker’s testimony for this additional reason. Finally, appellants claim that the admission of the testimony was not harmless and constituted reversible error. We will address each of these contentions in order. First, we hold that the proponent of the banker’s testimony, the government, was hot required to authenticate the postmark as such. Fed.R.Evid. 901(a) states: The requirement of authentication" }, { "docid": "14251661", "title": "", "text": "that refers more generally to “any other method authorized by law.” See 9A Charles Alan Wright & Arthur R. Miller, Fed. Practice & Procedure § 2437 (3d ed.2009). Second, Chung Young Chew was published before the Federal Rules of Evidence were enacted. The opinion therefore cannot be understood to preclude the Federal Rules of Evidence from falling within Rule 44’s current broad provision for authentication by “any other method authorized by law.” Federal Rule of Civil Procedure 44 clearly permits authentication of official documents under the Federal Rules of Evidence. Estrada-Eliverio also contends that, even if FRE 901 applies, the government did not properly authenticate the A-file documents and the district court thus abused its discretion by admitting them. Specifically, Estrada-Eliverio objects that Agent Perez did not have personal knowledge of the records’ creation. FRE 901(b)(1) provides that a witness with knowledge of a document can authenticate it by testifying that it is “what it is claimed to be,” and FRE 901(b)(7) provides for authentication of a public record with “[ejvidence that [a purported public record] ... is from the public office where items of this nature are kept.” A party “need only make a prima facie showing of authenticity ‘so that a reasonable juror could find in favor of authenticity or identification.’ ” United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir.1996) (quoting United States v. Chu Kong Yin, 935 F.2d 990, 996 (9th Cir.1991)). Here, Agent Perez testified that the documents were “what [they were] claimed to be,” namely, accurate copies of documents he personally knew were from Estrada-Eliverio’s A-file. FRE 901 does not require personal knowledge of a document’s creation, but rather only personal knowledge that a document was part of an official file. See Fed. R.Evid. 901 advisory committee’s note (“Public records are regularly authenticated by proof of custody, without more.”). Agent Perez’s testimony was sufficient to make a prima facie ease for authenticity. The district court therefore did not abuse its discretion in admitting the documents on the basis of this testimony. III. Challenges to EstradaEliverio’s Sentence Estrada-Eliverio also alleges two legal errors at" }, { "docid": "23173907", "title": "", "text": "further their efforts to obstruct the investigation. In the extension applications, this showing was reinforced with excerpts of seized conversations. Even if Keith Meling’s affidavit is omitted entirely, “there remains sufficient content in the [wiretap applications] to support a finding of probable cause.” Franks, 438 U.S. at 172, 98 S.Ct. at 2684. C. Trial Errors and Prosecutorial Misconduct Meling contends the district court erred in admitting the lay opinion testimony of the 911 operator and paramedic, both of whom testified that Meling was feigning his grief shortly after the poisonings. Meling also contends that the district court erred in admitting evidence of his bad character under Fed.R.Evid. 404(b); specifically, Meling objects to evidence showing his threatening behavior toward his family, his purchase of an expensive firearm and his use of profanity. In addition, Meling identifies four instances of alleged prosecutorial misconduct: the prosecution’s improper reliance on Mel-ing’s character flaws to bolster its case; its violation of a pretrial agreement on the introduction of evidence about striptease dancers’ fear of Meling; its violation of a pretrial order limiting the introduction of evidence concerning Meling’s firearm purchase; and its improper vouching for the credibility of a prosecution witness. Meling raised his evidentiary objections in a pretrial motion and at trial, and he raised the claim of prosecutorial misconduct in a motion for new trial. We review the district court’s decision to admit evidence for abuse of discretion. Unites States v. Simas, 937 F.2d 459, 463 (9th Cir.1991); United States v. Green, 648 F.2d 587, 592 (9th Cir.1981). We also review for abuse of discretion the district court’s denial of a motion for new trial based on prosecutorial misconduct. See United States v. Yarbrough, 852 F.2d 1522, 1538 (9th Cir.1988). 1. Evidentiary Issues The district court did not abuse its discretion in admitting the lay opinion testimony of the 911 operator and paramedic. Lay opinion testimony is admissible if it is “‘rationally based on the perception of the witness’ and ... helpful to the jury in acquiring a ‘clear understanding of the witness’ testimony or the determination of a fact in issue.’” Simas," }, { "docid": "23172499", "title": "", "text": "denied the motion to suppress under the Vienna Convention. On the second day of trial, however, the government asked for clarification of the court’s ruling regarding the inadmissability of Velarde’s post-arrest non-responsiveness. During a somewhat confused colloquy, the district court reconsidered its previous ruling. It distinguished Doyle v. Ohio, 426 U.S. 610, 619-20, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (comment on post-arrest, post -Miranda silence inadmissible under the Fifth Amendment) and Guam v. Veloria, 136 F.3d 648, 652 (9th Cir.1998) (same), from Velarde’s case, because in both Doyle and Veloria each defendant invoked his right to remain silent after being read their Miranda rights. The district court then permitted the government to introduce all of its evidence of “demeanor” both before and after Velarde waived his Miranda rights. At trial, Agent Salazar testified as to Velarde’s non-responsiveness during the interrogation. The prosecution elicited testimony from Agent Salazar about Ve-larde’s interview following the agent’s discovery of marijuana in Velarde’s car. The transcript makes clear that the interview took place before Velarde was read his Miranda rights and his subsequent waiver of his right to remain silent. Over defense objection, Agent Salazar’s direct examination proceeded: Q: Now, when you first started asking the defendant questions, did you tell him what had been found in the vehicle? A: Yes, I did. Q: And what did you tell him? A: I told him that 63 pounds of marijuana had been found in the gas tank of the vehicle he was driving. Q: And what was his response? [Defense]: Objection, your honor, based upon the previous thing we talked about. The Court: Overruled. A: I told him that. Before we give the Miranda rights, we always mention why they’re there. Q: Okay. And what was his response when you told him there was marijuana found in the vehicle? A: There was no response. He didn’t look surprised or upset or whatever. Q: So he just sat there? A: Yes. Q: Did he say anything? A: No. Q: Did he deny knowledge? A: No. Q: Now, after you told — after you told him about" }, { "docid": "23301526", "title": "", "text": "84 F.3d 1154, 1158 (9th Cir.1996). The district court did not abuse its discretion in admitting the evidence. Prior convictions for drug offenses are probative of veracity, which was at issue. United States v. Alexander, 48 F.3d 1477, 1488 (9th Cir.), cert. denied, — U.S. -, 116 S.Ct. 210, 133 L.Ed.2d 142 (1995). The evidence was not impermissibly stale. “By its terms, Rule 609 allows for admissibility of such a prior conviction even where the defendant has been released for up to ten years.” United States v. Browne, 829 F.2d 760, 763 (9th Cir.1987), cert. denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988). We need not address whether Cordoba’s prior conviction was admissible under Rule 404(b). We have held that when a prior conviction is properly admitted under Rule 404(b), then any error in admitting such conviction under Rule 609(a)(1) is harmless. See United States v. Mehrmanesh, 689 F.2d 822, 831 n. 10 & 833 (9th Cir.1982). We agree with the Eighth Circuit that the converse is true: when a prior conviction was properly admitted under Rule 609(a)(1), any error in admitting the conviction under Rule 404(b) is harmless unless the record reflects evidence that the defendant would not have testified but for the court’s Rule 404(b) ruling. See United States v. Smith, 49 F.3d 475, 478 (8th Cir.1995). m. Cordoba also appeals the district court’s admission of expert testimony concerning the modus operandi of drug traffickers. At trial, the government’s expert testified that sophisticated narcotics traffickers do not entrust 300 kilograms of cocaine to someone who does not know what he is transporting. We review a district court’s decision to admit expert testimony for abuse of discretion. United States v. VonWillie, 59 F.3d 922, 928-29 (9th Cir.1995). A trial court abuses its discretion when it bases its decision on an erroneous view of the law. United States v. Rahm, 993 F.2d 1405, 1410 (9th Cir.1993). If specialized knowledge will assist the trier of fact in understanding the evidence or determining an issue, a qualified expert witness may provide opinion testimony on the issue in question. Fed.R.Evid." }, { "docid": "23391578", "title": "", "text": "not more than 10 years, in the case of a first or second violation of subparagraph (B)(i) or (B)(ii), not less than 3 nor more than 10 years, and for any other violation, not less than 5 nor more than 15 years. 8 U.S.C. § 1324(a)(2)(B)(iii). . Defendants’ briefs state that they objected to Agent Walraven’s testimony. But, Defendants voiced no objection during Agent Walraven's testimony. Instead, Defendants filed a pretrial motion in limine that argued that the \"A files” created for each alien were inadmissible as testimonial statements that could not be cross-examined. In that motion, Defendants also argued that INS agent testimony about what the aliens told the agents was inadmissible as testimonial hearsay. Defendants requested that the trial court instruct the Government to instruct its witnesses not to testify about any communication between agents and the alleged aliens. The district court denied the motion. At trial, defense counsel stated at sidebar, before Agent Walraven began to testify, that the defense had a \"continuing objection to the entire questioning.” (R.4 at 138.) Neither a motion in limine nor a blanket statement such as the one made by defense counsel before Agent Walraven testified is sufficient to preserve an evidentiary ruling for review by this court. “ 'The overruling of a motion in limine is not reversible error, only a proper objection at trial can preserve error for appellate review.’ ” United States v. Rutkowski, 814 F.2d 594, 598 (11th Cir.1987) (quoting Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir.1980)) (other citations omitted). See also Fed.R.Evid. 103(a)(1) (requiring a timely objection stating the specific ground for objection). . Defendants also argue that, pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), their sentences are unreasonable. Because we reverse Defendants’ convictions on Count 4, we vacate their sentences and do not address their reasonableness arguments. . Gari does not argue that we should disregard any of the evidence he argues was improperly admitted when reviewing the sufficiency of the evidence for conviction. The rule is clear that, “as far as Double" }, { "docid": "8186294", "title": "", "text": "of 18 U.S.C. § 924(c)(1). At trial, Detective Charles DiDomenico, a narcotics expert, tes tified that weapons such as Bailey’s are frequently carried by drug dealers “not only to protect themselves, but [also] to protect their assets, drugs and money.” Bailey was convicted by the jury on all charges and was sentenced by the court to two concurrent 51-month sentences of imprisonment on the drug and weapon charges not at issue here, and to a consecutive 60-month term of imprisonment on the § 924(c)(1) conviction. B. United States v. Robinson In June 1991, an undercover officer of the Metropolitan Police Department approached Veloria Robinson, the sister of appellant Can-disha Robinson, and told her that he wanted to buy crack cocaine. Veloria then took him to an apartment in the northeast quadrant of the city. Candisha opened the door; Veloria told her that the officer wanted something. When Candisha asked what he wanted, he replied that he wanted a “twenty.” He then entered the apartment and the Robinson sisters went into the bedroom. He saw Candi-sha hand Veloria a rock of crack cocaine, which Veloria then sold to him. The next evening, the officer made another controlled buy at the same apartment, this time from a man who claimed that he also lived there. Shortly after the second controlled buy, a search warrant was executed at the apartment. Inside a locked trunk in the bedroom closet the police found a .22-caliber Derringer, appellant Robinson’s 1990 tax return, a letter from her employer, 10.88 grams of crack cocaine, and the marked $20 bill from the first controlled buy. They also found a quantity of plastic baggies in the bedroom. At trial, Detective David Stroud, a narcotics expert, testified that the Derringer was a “second gun” — that is, a type of gun that a drug dealer might hide on his person for use until he could get to his “real gun.” Stroud also testified that drug dealers generally use guns to protect themselves from other drug dealers, the police, and their own employees. Robinson was convicted by a jury on five separate" }, { "docid": "23172498", "title": "", "text": "escorted Velarde to an interview room, where Agent Salazar informed Velarde that Customs had found the marijuana. Velarde did not speak or physically respond. At some later time (the district court used a time of four and one-half hours, but expressed no view on the accuracy of this fact), Agent Salazar read Velarde his Miranda rights. Velarde then waived those rights and subjected himself to questioning. On March 10, 1999, the United States filed a two-count indictment against Ve-larde in the Southern District of California. Count one charged Velarde with importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960. Count two charged him with possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Before trial, Velarde filed a motion in limine seeking, inter alia, to exclude evidence of his silence and demeanor and to suppress his post-Miranda statements on the ground that he was not informed of his rights under the Vienna Convention. The district court granted the motion to exclude evidence of silence and demeanor, but denied the motion to suppress under the Vienna Convention. On the second day of trial, however, the government asked for clarification of the court’s ruling regarding the inadmissability of Velarde’s post-arrest non-responsiveness. During a somewhat confused colloquy, the district court reconsidered its previous ruling. It distinguished Doyle v. Ohio, 426 U.S. 610, 619-20, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (comment on post-arrest, post -Miranda silence inadmissible under the Fifth Amendment) and Guam v. Veloria, 136 F.3d 648, 652 (9th Cir.1998) (same), from Velarde’s case, because in both Doyle and Veloria each defendant invoked his right to remain silent after being read their Miranda rights. The district court then permitted the government to introduce all of its evidence of “demeanor” both before and after Velarde waived his Miranda rights. At trial, Agent Salazar testified as to Velarde’s non-responsiveness during the interrogation. The prosecution elicited testimony from Agent Salazar about Ve-larde’s interview following the agent’s discovery of marijuana in Velarde’s car. The transcript makes clear that the interview took place before Velarde was read his Miranda" }, { "docid": "6229204", "title": "", "text": "23. Exhibit 23 was a 1971 letter from a doctor at the Mayo Clinic to Varhol. During discovery, Varhol had given Amtrak a number of documents from the Mayo Clinic; by mistake, he did not include Exhibit 23 among them. When Varhol tried to introduce the letter, Amtrak objected, claiming surprise because it had nevér seen the letter. The district court excluded the letter for this reason. Varhol offers no authority for his argument that the court should have admitted the letter, so we could hold that he has waived this issue. See Fed.R.App.P. 28(a)(4); Beard v. Whitley County REMC, 840 F.2d 405, 408 (7th Cir.1988). But in any event, we see no abuse of discretion in refusing to admit a document that a party never submitted to his opponent before trial (even if by mistake), despite a discovery request by the opponent. Varhol’s third alleged evidentiary error was the district court’s decision to allow Robert. Fitzgerald, an Amtrak employee, to testify in Amtrak’s case about matters beyond authenticating documents. Varhol claims he was surprised by Fitzgerald’s testimony because Amtrak did not list Fitzgerald in the pretrial order; instead, Amtrak stated only that it would call a “Representative of National Railroad Passenger Corp.” Again, Varhol has cited no authority to support his argument. But, in any event, Varhol’s claim of surprise rings false. While Fitzgerald did not merely authenticate records, all his testimony concerned records that Amtrak had given Va-rhol in discovery. Moreover, Varhol himself had called Fitzgerald as a witness for the same reason Amtrak did — to authenticate and explain Varhol’s employment records. We find no abuse of discretion in allowing Fitzgerald to do the same thing for Amtrak. Varhol’s final evidentiary challenge is his most substantial. Over Varhol’s objection, the trial judge allowed Amtrak to cross-examine Varhol about a suspension from work he had received for purchasing stolen train tickets from his boss. The district court allowed the cross-examination under Fed.R.Evid. 608(b), which allows a questioner cross-examining a witness to attack the witness’s credibility by inquiring into specific instances of misconduct by the witness that are “probative" }, { "docid": "16965003", "title": "", "text": "evidence to convict him. Constantino takes issue with his sentence, arguing that this second conviction for possessing a firearm in furtherance of a drug trafficking offense violated the Fifth Amendment’s Double Jeopardy Clause, contravenes congressional intent, or the rule of lenity requires reversal. A. Video Was Properly Authenticated We begin with Constantino and Nicholas’s joint argument that the video showing them outside of Denny’s residence on February 14, 2011 should not have been admitted at trial because the government did not establish a proper foundation to authenticate it. Our review of evidentiary rulings is for abuse of discretion, and we will reverse only if “no reasonable person could take the view adopted by the trial court.” United States v. Vargas, 552 F.3d 550, 554 (7th Cir.2008). In laying the foundation for admitting the video, the government established through Agent Wheele’s testimony that the pole camera produced accurate results throughout the investigation and the video offered in court was a fair and accurate depiction of what he saw through the pole camera. After defense counsel objected, and the government elicited more details about the accuracy of the video and Agent Wheele’s knowledge of the events shown in it, the judge overruled counsel’s authentication objection and admitted the video into evidence. The brothers cannot show that the court abused its discretion in doing so. A party seeking to admit an item into evidence — whether a document, weapon, photograph, audio or video recording, or other item — must first establish the item’s genuineness. Fed.R.Evid. 901. This requires the proponent to “produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Id. Of course it must also be relevant to an issue at trial. Fed.R.Evid. 401, 402. There is no question that the February 14 video was pertinent to the government’s efforts to prove the brothers’ guilt. The only question before us is whether the government satisfied Rule 901’s authentication requirement. The admitting party’s burden of making a prima facie showing that the item is genuine can be satisfied in several ways, including through the testimony" }, { "docid": "23618218", "title": "", "text": "impropriety of questioning jurors about the content of their deliberations — did not abuse her discretion in declining to hold an evidentiary hearing. . While this appeal was pending, the Supreme Court handed down its decision in Booker, holding that the federal sentencing guidelines as constituted violated a defendant’s Sixth Amendment right to a jury trial. 543 U.S. at 245, 125 S.Ct. 738. That outcome followed from the conclusion that, in a mandatory sentencing regime, the Sixth Amendment precludes a judge from enhancing a sentence beyond the statutory maximum based on facts that are not found by a jury or admitted by the defendant. Id. at 232, 125 S.Ct. 738. The Court, however, remedied the perceived constitutional infirmity by rendering tire guidelines merely advisory rather than mandatory. Id. at 245, 125 S.Ct. 738. . Decoud also objects to the sentencing enhancement he received for possessing a firearm in relation to the drug offenses with which he was charged. He argues that there was no basis for this enhancement in the jury’s verdict. Any Booker error that may have occurred, however, was harmless, as the statutory minimum would have applied to De-coud regardless of the enhancement for possession. United States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir.2005); see also United States v. Ameline, 409 F.3d 1073, 1084 (9th Cir.2005) (en banc) (noting that a remand is necessary to correct Booker errors only “where it is not possible to reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory”). . Racial bias may also be characterized as \"extraneous prejudicial information” that has an effect on the jury. By its own terms, Rule 606(b) admits such evidence. Fed.R.Evid. 606(b) (\"except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention”); see also Henley, 238 F.3d at 1120; Tobias v. Smith, 468 F.Supp. 1287, 1290 (W.D.N.Y.1979). FERGUSON, Circuit Judge, dissenting: I respectfully dissent from the majority’s approval of the District Court’s failure to hold an evidentiary hearing regarding whether racial" }, { "docid": "22059101", "title": "", "text": "this constituted a deliberate deception on the part of the police department, designed to obtain a coerced confession from Hankey, who was in fact detained overnight. The district court allowed Hankey’s girlfriend to testify to the jury that she had received a phone call from Hankey after the arrest and that, in response to this call, she had contacted Sherman. However, the court precluded the defense from calling Sherman to testify to the alleged conversation with the police department. The court ruled that although such deception could constitute government misconduct, it had no bearing on the voluntariness of Hankey’s confession because Hankey was unaware of it and was therefore not a question for the jury. The jury convicted Hankey on both charged counts, but acquitted Welch, apparently accepting Welch’s argument that he was entrapped by the DEA informants. At sentencing, the district court calculated Hankey’s offense level under the sentencing guidelines by considering his involvement in the August 14, 1996, and October 28, 1996, PCP transactions, as well as the unconsummated October 30, 1996, transaction. As mentioned, on appeal Hankey challenges the admission of the gang expert testimony, the preclusion of attorney Sherman’s testimony, and the consideration of the August 14 and October 30 transactions for sentencing. STANDARD OF REVIEW A district court’s evidentiary rulings during trial are reviewed for abuse of discretion. See Old Chief v. United States, 519 U.S. 172, 174 n. 1, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997); United States v. Ra mirez, 176 F.3d 1179, 1182 (9th Cir.1999). “Evidentiary rulings will be reversed for abuse of discretion only if such nonconsti-tutional error more likely than not affected the verdict.” Ramirez, 176 F.3d at 1182. See also United States v. Workinger, 90 F.3d 1409, 1412 (9th Cir.1996). A district court’s decision to exclude or admit evidence under FRE 403 is reviewed with “considerable deference.” United States v. Cordoba, 194 F.3d 1053 (9th Cir.Cal.1999). A district court’s rulings on the admissibility of expert testimony are reviewed for an abuse of discretion. See Kumho Tire, 119 S.Ct. at 1176. Such rulings will be reversed only if “manifestly erroneous.”" }, { "docid": "2510111", "title": "", "text": "in this case. B. Hearsay Workinger next, contends that the transcripts were inadmissible hearsay. Fed. R.Evid. 801(c). That rule defines “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” However, an admission by a party-opponent is not hearsay. Fed.R.Evid. 801(d)(2)(A). Workinger’s statements in the transcript were admissions of a party-opponent; they were not hearsay. C. Authentication Workinger additionally contends that because the transcripts were not adequately authenticated, the .district court abused its discretion when it admitted them into evidence. See Fed.R.Evid. 901(a). That Rule states that for authentication there must be “evidence sufficient to support a finding that the matter in question is what its proponent claims.” A document can be authenticated by the testimony of a witness with knowledge. United States v. Childs, 5 F.3d 1328, 1336 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1385, 128 L.Ed.2d 60 (1994). The government need only make a prima facie showing of authenticity “so that a reasonable juror could find in favor of authenticity or identification.” United States v. Chu Kong Yin, 935 F.2d 990, 996 (9th Cir.1991) (citation omitted). Once the prima facie case for authenticity is met, the probative value of the evidence is a matter for the jury. Id.; United States v. Blackwood, 878 F.2d 1200, 1202 (9th Cir.1989) (per curiam). To authenticate the tapes, the government elicited testimony from the person who transcribed the tape. She testified that she lis tened to them “over and over” to make sure that her transcription was accurate. The government also elicited testimony from Mr. Johnson, the attorney who conducted the taped interview. Mr. Johnson testified that he had examined the transcript shortly after it was made and had compared it to the actual tape recordings and then filed an affidavit with the state court attesting to its accuracy. • He testified that, to the best of his recollection, the transcript accurately represented the testimony during the deposition. Although he testified at trial that he could not specifically recollect listening'" }, { "docid": "6711116", "title": "", "text": "here, if any, does not rise to the level of that present in Padrone, and is at most harmless error. We also reject Collins’ contention that Reynolds should have been allowed to testify about her statements. First, Collins’ counsel admitted that in the three months prior to trial, Reynolds’ attorney could not locate him. Second, Collins made no showing of what Reynolds’ testimony would be or exactly how his testimony would be any more than cumulative. See United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir.1978). We do not find that the district court abused its discretion in admitting Collins’ statements. C. Admissibility of Checkbook and Bank Records Collins contends that the checkbook and bank records were improperly admitted in violation of Fed.R.Evid. 404(b) (evidence of other crimes inadmissible to prove character of a person in order to show that she acted in conformity therewith), and Fed.R. Evid. 403 (probative value versus prejudicial harm). We address first the challenge to the admissibility of this evidence based upon Fed.R.Evid. 404(b). This rule specifically allows admission of evidence to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Since the district court found that there was evidence of large cash deposits during the course of Collins’ hearts of palm importation efforts which was relevant to her claims that she was ignorant of the eight pounds of cocaine which she received, the evidence would be properly admissible under the “knowledge” exception to the rule. With respect to Collins’ claim that this evidence was “clearly more prejudicial than probative,” a district court’s decision regarding the probative value versus prejudicial harm of evidence pursuant to Fed.R. Evid. 403 is reviewed for an abuse of discretion. United States v. Rubio, 727 F.2d 786, 798 (9th Cir.1983); United States v. Casanova, 642 F.2d 300, 301 (9th Cir.) (per curiam), cert. denied, 454 U.S. 899, 102 5. Ct. 401, 70 L.Ed.2d 215 (1981); United States v. Larios, 640 F.2d 938, 941 (9th Cir.1981). Thus, although Collins claims that the introduction of her checkbook and bank records into evidence is more prejudicial than" }, { "docid": "8734176", "title": "", "text": "to the jury venire were adequate to discover whether any of the jurors had been biased by pretrial publicity. Ezinwa’s claim of error is groundless. We find no abuse of discretion in the district court’s conduct of voir dire. Evidentiary Rulings Appellants challenge several of the district court’s evidentiary rulings. The decision whether to admit testimony or other evidence is left to the sound discretion of the trial judge and will not be overturned absent clear abuse, United States v. Stouffer, 986 F.2d 916, 924 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 115, 126 L.Ed.2d 80 (1993), which resulted in the deprivation of some substantial right of a party. United States v. Wicker, 933 F.2d 284, 289 (5th Cir.1991). A Agent Taylor’s Testimony At trial, the government presented the testimony of Special Agent Taylor as a summary witness. Okoronkwo and Okwechime argue that his testimony was inadmissible hearsay because it was based on out-of-court statements made to him by taxpayers and other agents, being offered to prove the truth of the statements. See Fed.R.Evid. 801(e). The government contends that any error in the admission of the testimony at issue was harmless. We agree. Agent Taylor’s testimony was merely cumulative of substantial evidence establishing the various defendants’ participation in the conspiracy. In reviewing defendants’ sufficiency of the evidence challenges, we have not relied upon Taylor’s testimony. The district court did not commit reversible error. B. Exclusion of Okwechime''s Exhibit Okwechime contends that the district court erred in refusing to admit a handwriting sample of Nzurum’s boyfriend as an exhibit and refusing to allow a handwriting expert to testify as to the handwriting on that sample. Counsel for Okwechime first sought to introduce the exhibit during cross-examination of Nzurum. However, a review of the trial transcript reveals that counsel did not lay the proper foundation for introducing the exhibit. He merely asked the witness to look at the document, then immediately launched into questioning Nzurum about whether she could identify the writing thereon as her boyfriend’s handwriting. The prosecution objected on the basis of improper foundation, and the trial court" }, { "docid": "14251662", "title": "", "text": "record] ... is from the public office where items of this nature are kept.” A party “need only make a prima facie showing of authenticity ‘so that a reasonable juror could find in favor of authenticity or identification.’ ” United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir.1996) (quoting United States v. Chu Kong Yin, 935 F.2d 990, 996 (9th Cir.1991)). Here, Agent Perez testified that the documents were “what [they were] claimed to be,” namely, accurate copies of documents he personally knew were from Estrada-Eliverio’s A-file. FRE 901 does not require personal knowledge of a document’s creation, but rather only personal knowledge that a document was part of an official file. See Fed. R.Evid. 901 advisory committee’s note (“Public records are regularly authenticated by proof of custody, without more.”). Agent Perez’s testimony was sufficient to make a prima facie ease for authenticity. The district court therefore did not abuse its discretion in admitting the documents on the basis of this testimony. III. Challenges to EstradaEliverio’s Sentence Estrada-Eliverio also alleges two legal errors at sentencing. First, he argues that the district court erred in applying a sixteen-level enhancement to his offense level pursuant to United States Sentencing Guidelines § 2L1.2(b)(l)(A)(ii) based on his prior conviction for assault with a deadly weapon or by means likely to produce great bodily injury under California Penal Code section 245(a)(1). Specifically, he contends that section 245(a)(1) does not constitute a crime of violence for the purposes of the § 2L1.2(b)(l)(A)(ii) enhancement. Because we held that section 245(a)(1) is categorically a crime of violence under § 2L1.2(b)(l)(A)(ii) in United States v. Grajeda, 581 F.3d 1186, 2009 WL 2988034, **9-10 (9th Cir.2009), we reject this argument. Second, Estrada-Eliverio argues that the district court erred under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in raising the statutory maximum for a violation of 8 U.S.C. § 1326 on the basis of a prior conviction that was not charged in the indictment, and was neither proven to a jury beyond a reasonable doubt nor admitted. This argument, however, is foreclosed by" } ]

[ { "docid": "14248423", "title": "", "text": "class and invested time and effort in pursuing this litigation. However, the Court is not persuaded that this case warrants an upward departure from the established incentive awards. In this district, $5,000 for each class representative is presumptively reasonable. Jacobs v. Cal. State Auto. Ass’n Inter-Ins. Bureau, No. C 07-00362 MHP, 2009 WL 3562871, at *4-5 (N.D.Cal. Oct. 27, 2009); see also Chao v. Aurora Loan Services, LLC, No. C 10-3118 SBA, 2014 WL 4421308, at *4 (N.D.Cal. Sept 5, 2014) (noting that “Plaintiffs’ ... request for a $7,500 incentive award for each representative Plaintiff is above the $5,000 figure which this Court has determined is presumptively reasonable”). Accordingly, the Court DENIES Plaintiffs’ request for $15,000 in incentive awards for each class representative and finds that $5,000 for class representative is presumptively reasonable. V. OBJECTIONS The Court now addresses the points raised in the three written objections , keeping in mind that objectors to a class action settlement bear the burden of proving any assertions they raise challenging the reasonableness of a class action settlement. Oregon, 913 F.2d at 581 (9th Cir.1990). The objectors have not satisfied this burden. All three objections were submitted pro se, and none raises any substantive concerns about the fairness, reasonableness, or adequacy of the Settlement. In addition, the Narkin Objection is untimely, and Narkin is not a member of the Settlement Class. Burgess attacks the proposed class incentive awards as a payment to class representatives in violation of Radcliffe v. Experian Information Solutions. Inc., 715 F.3d 1157 (9th Cir.2013). In Radcliffe. the settlement agreement explicitly conditioned incentive awards on the class representatives’ support for settlement. In addition, the maximum amount any class member could receive under the settlement was $750, which the court found compared unfavorably with the $5,000 incentive awards. Radcliffe, 715 F.3d at 1165. In contrast, the Settlement Agreement imposes no conditions on incentive awards. Settlement Agreement ¶ 2.1(a). Moreover, the Court has adjusted incentive awards to be consistent with the value of the class benefit, and notes that the approved amounts are consistent with the relevant Ninth Circuit authority. Next, Burgess" } ]

[ { "docid": "9274832", "title": "", "text": "\"several\" class action and FLSA cases since joining the firm. (Id. ¶ 64.) He requests an hourly rate of $ 400, and attaches in support 3 retainer agreements with other clients from 2018, after the date he became a partner. (Id. ¶ 59; Simpson Decl., Ex. 2, ECF No. 195-2.) Ms. Moore is a senior associate at Beranbaum Menken, where she has worked for nearly two years. (Simpson Decl. ¶ 71.) She requests an hourly rate of $ 300. (Id. ¶ 68.) She claims that she has \"five years of civil rights experience\" (id. ¶ 73), but does not appear to have litigated wage-and-hour cases prior to joining the firm. The Court takes judicial notice that, based upon the Court's review of records of the New York State Unified Court System and Florida bar, although Ms. Moore was admitted to practice law in the State of Florida on September 26, 2014, she was not admitted in New York until September 13, 2017, and was not admitted in the Southern District of New York until December 19, 2017. Defendants object to the $ 600 hourly rate sought for Mr. Menken and argue that his hourly rate should be set at $ 450. (Opp. Mem. at 13.) However, given Mr. Menken's vast experience practicing law and in wage-and-hour cases, the Court finds that his $ 600 hourly rate is reasonable and is consistent with other cases in this district. See, e.g. , Dixon v. Agbai , No. 15-CV-850 (AT) (AJP), 2016 WL 3702749, at *15 (S.D.N.Y. July 8, 2016), report and recommendation adopted , 2016 WL 5660246 (S.D.N.Y. Sept. 28, 2016) (\"rates awarded to experienced civil rights attorneys over the past ten years have ranged from $ 250 to $ 600\") (citation omitted); Powell v. Metro One Loss Prevention Servs. Grp. , 12-CV-4221 (LAP) (DF), 2015 WL 9287121, at **2-3 (S.D.N.Y. Feb. 5, 2015), report and recommendation adopted , 2015 WL 9255338 (S.D.N.Y. Dec. 17, 2015) (setting hourly rate for senior partner in employment case at $ 650). Defendants object to the $ 400 hourly rate for Mr. Simpson and suggest that" }, { "docid": "21798209", "title": "", "text": "31, 2016.” ECF No. 125 at 12-13. . The final amount of the settlement fund may increase slightly. As the parties explain: “Because the settlement provides an administrative appeals process to class members who had their timely applications denied, additional funding may occur, subject to the terms of the Stipulation of Settlement, if any pending appeals are resolved in favor of the class members. If such additional funding occurs, the parties shall so inform the Court,” ECF No. 174 at 2. . Plaintiffs' motion for final approval erroneously asserts that 1,124 class members would receive a payout without needing to file an application. ECF No. 132 at 6. . The declaration states that SCS attempted to contact \"336 Probable Payees who have not yet filed an application,” but then breaks that down into 224 contacted class members, 67 class members with pending contacts, and 44 class members that were unable to be contacted. ECF No. 132-1 ¶ 7. This totals 335 class members. . The Court considers all of these letters even though five—ECF Nos. 154, 155, 161, 172, 176—were filed after the August 31, 2017 deadline to file objections. See ECF No. 131 at 2, 4 (setting deadline for objections as twenty-eight days before the September 28, 2017 fairness hearing). . Curiously, Ms. Spanier’s December 13, 2017 declaration claims a total of $42,218.75 for 48.25 hours spent by her firm between July 28 and September 14, 2017. ECF No. 178 at 5. Her September 15, 2017 declaration claimed $38,718.75-$3,500 less—for the same number of hours in the same period. ECF No. 153-2 at 2. The Court' does not resolve this discrepancy and presumes the subsequent declaration accurately reports the number of hours claimed by Ms. Spanier. . Three, of the four attorneys included travel time in their billing entries. The attorney who did not billed 1.5 hours for \"ORAL ARGUMENT,” ECF No. 144-6 at 20, and the Court therefore calculates the total fee based on 1.5 hours for all four attorneys. . The five entries for attendance at the May 25, 2016 mediation total $36,420. Deducting this amount, and" }, { "docid": "20895359", "title": "", "text": "14-CV-4794-LHK, ECF No. 69 (Federal Circuit order). Xi-linx’s appeal remains pending. See Appeal No. 15-1919. On September 1, 2015, a Magistrate Judge in Delaware issued a combined Memorandum Order that granted both Xi-linx’s and Altera’s motions to transfer the Delaware cases to the Northern District of California. No. 14-CV-01376-LPS, ECF No. 49; No. 15-CV-00162-LPS, ECF No. 41. Papst filed objections, which a District Judge orally overruled on February 23, 2016. No. 14-CV-01376-LPS, ECF No. 54; No. 15-CV-00162-LPS, ECF No. 48. On February 24, 2016, the cases were transferred to the Northern District of California and docketed as the instant eases, Nos. 16-CV-00925 and 16-CV-00926. On March 22, 2016, this Court issued an order relating the two cases transferred from Delaware to the two dismissed California cases involving Defendants and Papst. See No. 14-CV-00925, ECF No. 66. The two cases transferred from Delaware were accordingly reassigned to the undersigned judge that same day. On May 11, 2016, Defendánts filed their substantively identical Motions for Judgment on the Pleadings. On May 25, 2016, Plaintiff filed an opposition. On May 30, 2016, Defendants filed a reply. See ECF Nos. 88, 92, 94 (Case No. 16-CV-00925); ECF Nos. 81, 82, 84 (Cáse No. 16-CV-00926). II. LEGAL STANDARD A, Motion for Judgment on the Pleadings Under Fed. R. Civ. P. 12(c) “After the pleadings are closed— but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed, R. Civ. P. 12(c). “Judgment on the pleadings is properly granted when, accepting all factual allegations in the complaint as true, there is no issue .of material fact in dispute, and the moving party, is entitled to judgment' as a matter of law.” Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir.2012) (quotation marks and alteration omitted). Like-a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a motion under Rule 12(c) challenges the legal sufficiency of the claims asserted in the complaint. See id. Indeed, a Rule 12(c) motion is “functionally identical” to a Rule 12(b)(6) motion, and courts apply the “same standard.” Dworkin v. Hustler Magazine Inc., 867 F.2d" }, { "docid": "9026498", "title": "", "text": "823b(c) states, in pertinent part: (c) Civil penalty Any licensee, permittee, or exemptee who violates or fails or refuses to comply with any rule or regulation under this subchapter, any term, or condition of a license, permit, or exemption under this subchapter, or any order issued under subsection (a) of this section shall be subject to a civil penalty in an amount not to exceed $10,000 for each day that such violation or failure or refusal continues. Such penalty shall be assessed by the Commission after notice and opportunity for public hearing. 16 U.S.C. § 823b(c). 16 U.S.C. § 823b(d)(3)(B) states in part: \"(B) If the civil penalty has not been paid within 60 calendar days after the assessment order has been made under subparagraph (A), the Commission shall institute an action in the appropriate district court of the United States for an order affirming the assessment of the civil penalty.\" 16 U.S.C. § 823b(d)(3)(B). Federal Rule of Civil Procedure 12(b)(6) allows dismissal for \"failure to state a claim upon which relief can be granted.\" Fed. R. Civ. P. 12(b)(6). Respondents subsequently sought leave to file a second supplemental brief, (ECF No. 54), which FERC opposed, (ECF No. 59). Despite FERC's objection, in the interests of justice, the Court will consider all supplemental authority and briefs submitted, including Respondents' second supplemental brief, and the subsequent filings submitted by each party. (ECF Nos. 54-1, 68, 69, 70, 78, 79, 80, 82, 83, 84, 85, 88-1.) The Court also is unable to find on-point decisions from any other United States Courts of Appeal, and the parties have identified none. To date, five federal district courts have decided the issue. Fed. Energy Regulatory Comm'n v. Barclays Bank PLC , 247 F.Supp.3d 1118 (E.D. Cal. 2017) ; Fed. Energy Regulatory Comm'n v. Etracom, LLC , No. 2:16cv01945, 2017 U.S. Dist. LEXIS 33430 (E.D. Cal., Mar. 7, 2017); Fed. Energy Regulatory Comm'n v. Silkman , 233 F.Supp.3d 201 (D. Maine 2017) ; Fed. Energy Regulatory Comm'n v. City Power Marketing, LLC , 199 F.Supp.3d 218 (D.D.C. 2016) ; Fed. Energy Regulatory Comm'n v. Maxim Power" }, { "docid": "21798169", "title": "", "text": "4. He apparently deducted the 33% potential fee award from the 37% calculated benefit to reach this conclusion. See id. at 3-4. Class counsel attempted to respond to the objector, id. at 2, who refused a certified mailing, id. at 1, and did not return any phone messages, ECF No. 152 at 3. It is not clear whether this class member would object to the settlement if he understood correctly the method used to calculate payments to the class. Two objections concern the 2016 Amendment that is not at issue in this case. ECF Nos. 142, 146. As the Court previously explained, class members remain free to challenge the validity of the 2016 Amendment by filing another lawsuit, with or without counsel. ECF No. 151 at 2. The objector who filed ECF No. 146 also filed a further objection, ECF No. 159, and appeared at the fairness hearing to object to the settlement, ECF No. 158. The further objection raises similar issues regarding the 2016 Amendment, but it also challenges the adequacy of class notice because it did not indicate that court documents from this or other cases could be obtained via PACER. ECF No. 159 at 7-8. Although this district’s guidelines indicate that reference to PACER should be included in class action settlement notices, the Court does not find this omission to render the class notice inadequate. See United States District Court, Northern District of California, Procedural Guidance for Class Action Settlements, https://cand. uscourts.gov/ClassActionSettlement Guidance (last visited Dec. 15, 2017). Moreover, as the Court confirmed with the objector at the hearing, her primary objection is that she believed the settlement should also have included the 2016 Amendment. Three remaining objections express dissatisfaction with the amount of the settlement, claiming that class members are receiving too little of the amounts to which they believe they are entitled. ECF Nos. 136, 140, 155. The final objection states an intent to “appeal the amount the lawyers will receive” and “appeal on the benefits [of] settlement,” which the Court construes as an objection to the amount of the settlement. ECF No. 172 at" }, { "docid": "10907003", "title": "", "text": "at 11 (emphasis in original)). Based on the date that the Yoes objectors submitted their initial objection, October 25, 2004, the Court concludes that they were well aware of this deadline. Although this Court and the Class Notice unambiguously stated that this Court would not consider any late objections, and courts frequently overrule untimely objections, see, e.g., Ass’n for Disabled Americans, Inc. v. Amoco Oil Co., 211 F.R.D. 457, 476 (S.D.Fla.2002) (“Given that the objections are extraordinarily untimely, that no valid excuse has been shown, and that substantial prejudice to the parties would result, they are denied.”); Manners v. Am. Gen. Life Ins. Co., 1999 WL 33581944, at *24, 1999 U.S. Dist. LEXIS 22880, at *72 (untimely objection overruled); Cook v. McCarron, 1997 WL 47448, at *16, 1997 U.S. Dist. LEXIS 1090, at *53 (N.D.Ill. Jan. 22, 1997) (denying motion to file untimely objections); In re Centocor, Secs. Litig., 1993 WL 189937, at *7, 1993 U.S. Dist. LEXIS 7229, at *10 n. 5 (E.D. Pa. June 2, 1993) (refusing to consider late objections); Roberts v. Heim, 1991 WL 427888, at *1, 1991 U.S. Dist. LEXIS 18208, at *3 (N.D.Cal. Aug. 28, 1991) (no legitimate excuse for filing objections two weeks late); Haynes v. Shoney’s, Inc., 1993 WL 19915, at *2, 1993 U.S. Dist. LEXIS 749, at *6 (N.D.Fla. Jan. 25, 1993) (objections filed two days after deadline “would be reason enough to reject ... objection”), this Court has considered this particular objection for thoroughness sake and finds it is without merit. While Mr. Cochran asserts that “almost all mutual companies are considering demutualization,” and that Mass-Mutual “would have tremendous incentive to do so, as they could save the company the entire cost of the settlement,” he fails to substantiate this argument with anything more than speculation and one example that this occurred three months after the Western District of Pennsylvania approved the nationwide class settlement in MetLife. (See Objectors’ Supplemental Memorandum Re: Recapture of Settlement Benefits by Massachusetts Mutual Life Insurance Company (“Cochran Suppl. Memo.”) at 1-2, Docket Entry # 150). He proposes that in order to avoid the recapture" }, { "docid": "9298869", "title": "", "text": "offend due process. (EPP/CFP Opp'n 18-19 (citing ECF No. 492, at 16-21; and In re Korean Ramen Antitrust Litig. , No. 13-cv-4115-WHO, 2017 WL 235052, at *21 (N.D. Cal. Jan. 19, 2017) ; and In re Optical Disk Drive Antitrust Litig. , No. 10-md-2143 RS, 2016 WL 467444, at *12 (N.D. Cal. Feb. 8, 2016) ).) They also argue that out-of-state plaintiffs are protected by the Cartwright Act who are injured by acts centered in California. (Id. at 19 (citing AT & T Mobility LLC v. AU Optronics Corp. , 707 F.3d 1106, 1113-14 (9th Cir. 2013) ; and In re Static Random Access Memory (SRAM) Antitrust Litig. , 580 F.Supp.2d 896, 905 (N.D. Cal. 2008) ).) Next, the Indirect Plaintiffs contend that because the Court should find specific jurisdiction over Lion Capital and Big Catch for the Cartwright Act claims, Plaintiffs may bring their remaining state law claims under two different theories. First, Federal Rule of Civil Procedure 18(a) allows a party to join independent or alternative claims against an opposing party. (Id. at 22.) Second, this Court can exercise pendent personal jurisdiction over any remaining claims that arise out of the same common nucleus of operative facts as the claim for which jurisdiction exists. (Id. at 22-23 (citing Picot , 780 F.3d at 1211 ).) Finally, the Indirect Plaintiffs contend that Bristol-Myers does not alter a finding of personal jurisdiction here. They assert that there is a sufficient affiliation between the forum and the underlying controversy because of the specific acts of alleged conspiratorial conduct took place in California. (See id. at 25.) The Indirect Plaintiffs then cite three district court opinions that determined Bristol-Myers does not apply to federal class actions. (See id. at 26 (citing, e.g., Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc. , No. 17-cv-564 NC, 2017 WL 4224723, at *4-5 (N.D. Cal. Sept. 22, 2017) ).) Plaintiffs conclude that all of their injuries arose out of the Lion entities' illegal price-fixing actions, which largely occurred in the forum. (See id. at 26-27.) C. Defendants' Reply Defendants first rebut Plaintiffs' claim that Bristol-Myers is distinguishable" }, { "docid": "19436069", "title": "", "text": "not be subject to review, claims that the discretionary process itself was constitutionally flawed are cognizable....\" Id. at 1202 (citations omitted). This Court therefore has jurisdiction to review Liborio Ramos's claim that her bond hearing, to which she was entitled under Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) as an immigrant detained for over six months under 8 U.S.C. § 1231(a)(6), was legally erroneous and unconstitutional. See Sales v. Johnson, No. 16-CV-01745-EDL, ECF No. 17 at 8 (N.D. Cal. April 27, 2017); Obregon v. Sessions, No. 17-CV-01463-WHO, 2017 WL 1407889, at *4 (N.D. Cal. Apr. 20, 2017) ; Castaneda v. Aitken, No. 15-CV-01635-MEJ, 2015 WL 3882755, at *7-8 (N.D. Cal. June 23, 2015) ; Espinoza v. Aitken, No. 5:13-CV-00512 EJD, 2013 WL 1087492, at *3 (N.D. Cal. Mar. 13, 2013). The Government calls the Court's jurisdiction into question. It notes that shortly after the Court issued its prior order, but before the IJ issued her second bond memorandum, the Supreme Court ruled that immigrants detained under different statutory provisions, 8 U.S.C. §§ 1225(b)(1), 1225(b)(2), and 1226(c), are not entitled to bond hearings at six month intervals. Jennings v. Rodriguez, --- U.S. ----, 138 S.Ct. 830, 836, 200 L.Ed.2d 122 (2018). In her second bond memorandum, the IJ looked to Jennings in concluding that she \"no longer has jurisdiction to conduct custody redetermination hearings for individuals...who are...detained pursuant to INA § 241(a) [ 8 U.S.C. § 1231(a) ].\" ECF No. 20-2 at 6. The IJ reasoned that Rodriguez v. Robbins, 804 F.3d 1060, 1139 (9th Cir. 2015), which provided bond hearings for individuals detained under sections 1225(b)(1), 1225(b)(2), 1226(c), and Diouf, 634 F.3d at 1085, which provides bond hearings for individuals like Liborio Ramos detained under section 1231(a)(6), both applied the canon of constitutional avoidance. Id. Because the Supreme Court reversed Rodriguez\"on the grounds that the Ninth Circuit misapplied the canon of constitutional avoidance,\" the IJ reasoned that Diouf\"too is no longer a reliable source of jurisdiction.\" Id. Contrary to the Government's assertion and the IJ's conclusion, Jennings neither prevents an IJ from conducting a bond hearing for immigrants" }, { "docid": "11591914", "title": "", "text": "2004) (movants may not raise new issues in reply briefs). The Debtor’s choice to proceed under the co-debtor stay alone was a tactical error, as the automatic stay had been imposed prior to the bringing of the Motion but before some of the actions complained of. It does not, however, justify the attempt to shoehorn new arguments into a motion already before the court. “Counsel’s conclusion that [she] made a tactical error does not justify a do-over.” In re Husain, Case No, 15-3308, 866 F.3d 832, 835, 2017 WL 3393056, at *2 (7th Cir. Aug. 8, 2017). Along the same lines, PHL seeks to inject a request to annul the co-debtor stay into its Response. Once again, this is improper. Requests for affirmative relief should be brought by motion, not combined with objections. Garner v. Select Portfolio Servicing, Inc., Case No. 15-CV-10377, 2015 WL 871402, at *1 (E.D. Mich. Feb. 27, 2015) (“[Combining objections ... with a motion for affirmative relief is improper.”); Delaney v. Tilton, Case No. 1:07 CV F1219LJODLB, 2008 WL 5411932, at *1 (E.D. Cal. Dec. 24, 2008) (A party “may not combine a motion with the objections.”). While such a request is likely improvident on its merits given the confirmed Plan treating both the Property and PHL’s Proof of Claim, see, e.g., In re Harvey, 213 F.3d 318, 321 (7th Cir. 2000) (“It is a well-established principal of bankruptcy law that a party with adequate notice of a bankruptcy proceeding cannot ordinarily attack a confirmed plan.”); In re Chappell, 984 F.2d 775, 782 (7th Cir. 1993) (same); In re Morrow, 495 B.R. 378, 388 (Bankr. N.D. Ill. 2013) (confirmed plan has res judicata effect, precluding relief from stay on preconfirmation grounds), given the improper manner in which it was raised, the court need not consider it here. CONCLUSION- Having considered all of the foregoing, the court therefore concludes that there has in fact been a violation of the co-debtor stay here. The Sale and the Motion to Approve Sale and subsequent acts relating thereto are acts prohibited by section 1301(a), and as a result, are void." }, { "docid": "9193325", "title": "", "text": "privately provided information to the corporate defendant regarding the prospects for drug approval, which the corporate defendant failed to disclose to its public shareholders. See id. at 350 (citing In re MannKind Sec. Actions, 835 F.Supp.2d 797, 811 (C.D. Cal. 2011) (\"When the FDA tells a company about problems with a product, and the company nonetheless continues to make confident predictions about a product, courts have inferred scienter and falsity.\")). Plaintiffs also rely on In re PTC Therapeutics, Inc. Sec. Litig., No. 16-cv-1124, 2017 WL 3705801 (D.N.J. Aug. 28, 2017), in which the court explicitly acknowledged it was departing from \"four cases in which allegations that defendants knew but misrepresented certain information about clinical data, which ultimately misled investors about the likelihood of FDA approval, were insufficient to repel a motion to dismiss.\" Id. at *18. (citing In re Columbia Laboratories, Inc. Secs. Litig., No. 12-cv-614, 2013 WL 5719500 (D.N.J. Oct. 21, 2013) ; Sapir v. Averback, et al., No. 14-cv-7331, 2016 WL 554581 (D.N.J. Feb. 10, 2016) ; In re Adolor Corp. Secs. Litig., 616 F.Supp.2d 551 (E.D. Pa. 2009) ; and In re Amarin Corp. PLC, No. 13-cv-6663, 2015 WL 3954190 (D.N.J. June 29, 2015) ). In PTC, the court distinguished the \"four cases\" that ruled in favor of granting motions to dismiss on the grounds that, among other things, none of the drugs at issue in Columbia, Sapir, Adolor, or Amarin ever received an RTF [Refuse to File letter from the FDA], let alone two RTFs issued for essentially the same reason.\" PTC Therapeutics, 2017 WL 3705801, at *18. It is worth noting that in this case, Plaintiff does not allege that the FDA sent any \"Refuse to File\" letters to Egalet prior to finding that Egalet would not obtain intranasal deterrent labeling for ARYMO. In summary, the present case is premised on allegations that Defendants possessed the requisite expertise to determine, based on admittedly public information, that it was unlikely to receive FDA approval for a particular type of labeling on its drug. Frater and Viropharma are premised on allegations that the FDA specifically imparted information," }, { "docid": "14615238", "title": "", "text": "(Fed. Cir. 2015) (placing the initial burden on the alleged infringer to put the patentee “on notice” of unmarked products and finding it failed to meet its burden because of conflicting expert testimony and failure to produce admissible evidence showing a patented product was sold); Fortinet, 2015 WL 5971585, at *5 (adopting a “burden of production on [the alleged infringer] to identify the. [unmarked products] it believes practice the inventions claimed” and granting partial summary judgment in favor of the . alleged infringer where its expert report was “not too conclusory”); Unwired Planet, LLC v. Apple Inc., No. 13-CV-04134-VC, 2017 WL 1175379, at *5 (N.D. Cal. Feb. 14, 2017) (holding “[a]t most, the infringer bears some initial burden of plausibly identifying products subject to the marking requirement” and granting summary judgment in favor of the alleged infringer where it submitted a declaration and attached exhibits identifying particular products). This district court agreed with that approach, concluding that if the defendant did not at least have the burden of identifying unmarked products it believed fell within the claims, “a defendant’s general allegations could easily instigate a fishing expedition for the paten-tee.” J.A. 59. Other courts have required the patentee prove that none of its unmarked goods practice. the asserted claims. See, e.g., Adrea, LLC v. Barnes & Noble, Inc., No. 13-CV-4137 JSR, 2015 WL 4610465, at *1-2 (S.D.N.Y. July 24, 2015). Courts adopting this approach reason the patentee is in a better position to know whether his goods practice the patents-in-suit. Id. at *2 (citing Dunlap, 152 U.S. at 248, 14 S.Ct. 576); see also, e.g., DR Sys., Inc. v. Eastman Kodak Co:, No. 08-CV-0669H(BLM), 2009 WL 2632685, at *4 (S.D. Cal. Aug. 24, 2009) (“Just as a patentee’s compliance with the marking statute is a matter particularly within its knowledge, so are the details of its own product line.”); Kimberly-Clark Worldwide, Inc. v. First Quality Baby Prods., LLC, No. 1.-09-CV-1685, 2013 WL 1821593, at *3 (M.D. Pa. Apr. 30, 2013). We hold an alleged infringer who challenges the patentee’s compliance with § 287 bears an initial burden of production to" }, { "docid": "5003011", "title": "", "text": "386 (D.D.C. 2015) (alterations other than emphasis and second ellipsis in original) (emphasis added) (quoting Ahuja, 742 F.Supp.2d at 103) (concluding that because “both parties rel[ied] on other documents, such as emails,” the court was required to convert the motion). However, the case the Latson court referred to did not actually seem to set out a rule restricting courts to EEOC complaints and notices of charges. There, the court considered five exhibits attached to motion-to-dismiss filings. See Ahuja, 742 F.Supp.2d at 103. Immediately after referencing the five exhibits, that court stated: “The Court, however, may only consider Plaintiffs EEOC- Complaint and Notice of Charge .... without converting the motions to dismiss,...” See id. The Ahuja. court was simply separating out the sole permissible exhibit—which was indeed an EEOC complaint and notice of charge—from the broader group of five exhibits, not stating that only those documents could be considered in any given situation. See id. Notably, the four excluded exhibits were an Employment Intake Questionnaire—which was used to formulate the plaintiffs EEOC complaint—and several e-mails. See Mot. Dismiss Ex. 1, Ahuja v. Detica Inc., 742 F.Supp.2d 96 (D.D.C. 2010) (No. 09-2246), ECF No. 4-1; Opp’n to Mot. Dismiss Exs. 1-4, Ahuja v. Detica Inc., 742 F.Supp.2d 96 (D.D.C. 2010) (No. 09-2246), ECF Nos. 9-1-9-7. Despite the Latson court’s restrictive view of judicial notice with respect to administrative documents, courts have taken judicial notice of Final Agency Decisions, especially for background information such as dates of filings. See Grant v. Dep’t of Treasury, 194 F.Supp.3d 25, 28 n.2, No. 15-1008, 2016 WL 3365388, at *2 n.2 (D.D.C. June 16, 2016) (“[T]he Administrative Judge’s Initial Decision, Treasury’s Final Agency Decision, and [the Merit Systems Protection Board]’s Final Order are official, public documents subject to judicial notice.”); Gen. Cas. v. United States Gov’t, No. 13-5596, 2014 WL 2198487, at *4 (N.D. Ill. May 27, 2014), reconsideration denied, 2014 WL 4269096 (N.D. Ill. Aug. 28, 2014) (taking judicial notice of a civil docket, “permitting] the [c]ourt to consider the date on which Plaintiff filed its complaint and the fact of its voluntary dismissal”); Byers v." }, { "docid": "21798170", "title": "", "text": "because it did not indicate that court documents from this or other cases could be obtained via PACER. ECF No. 159 at 7-8. Although this district’s guidelines indicate that reference to PACER should be included in class action settlement notices, the Court does not find this omission to render the class notice inadequate. See United States District Court, Northern District of California, Procedural Guidance for Class Action Settlements, https://cand. uscourts.gov/ClassActionSettlement Guidance (last visited Dec. 15, 2017). Moreover, as the Court confirmed with the objector at the hearing, her primary objection is that she believed the settlement should also have included the 2016 Amendment. Three remaining objections express dissatisfaction with the amount of the settlement, claiming that class members are receiving too little of the amounts to which they believe they are entitled. ECF Nos. 136, 140, 155. The final objection states an intent to “appeal the amount the lawyers will receive” and “appeal on the benefits [of] settlement,” which the Court construes as an objection to the amount of the settlement. ECF No. 172 at 1. The Court acknowledges these objectors’ frustrations but, as discussed above, nonetheless finds the settlement amount to be reasonable given the risks and delay of further litigation. On balance, the Court concludes that the reaction of the class weighs in favor of approval. See, e.g., Churchill Vill., 361 F.3d at 577 (holding that approval of a settlement that received 45 objections (.05%) and 500 opt-outs (.56%) out of 90,000 class members was proper). After reviewing all of the required factors, the Court finds the settlement fair, reasonable, and adequate, and grants Plaintiffs’ motion for final approval of the settlement. III. ATTORNEYS’ FEES AND COSTS Class counsel seek attorneys’ fees both under the ERISA fee-shifting statute, 29 U.S.C. § 1132(g)(1), and as a percentage of the common fund in this case. They do not seek double recovery, and they acknowledge that any statutory fee award paid by Defendants (or the Fund’s insurance policy) “shall constitute a credit to any amount awarded to Class Counsel from the Settlement Fund as a percentage of the common fund.” ECF" }, { "docid": "21798197", "title": "", "text": "cursory discussion and the more recent and ERISA-specific authority cited above. The other three cases cited by Plaintiffs, ECF No. 153 at 19-20, support an award of non-taxable costs as part of a reasonable attorneys’ fee, but expert fees were not awarded—or addressed—in any of those cases. Redland Ins. Co., 460 F.3d at 1258-59 (allowing recovery in ERISA case of “reasonable charges for computerized research”); Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577 (9th Cir. 2010) (holding that Fair Credit Reporting Act allows nontaxable costs, and remanding to district court to consider whether to award claimed non-taxable costs, which included “the cost of postage, facsimiles, travel, mediation ■ services, and video conferencing services used in depositions”); Langston v. N. Am. Asset Dev. Corp. Grp. Disability Plan, No. C 08-02560 SI, 2010 WL 330085, at *8 & n.12 (N.D. Cal. Jan. 20, 2010), on reconsideration, 2010 WL 1460201 (N.D. Cal. Apr. 12, 2010) (awarding “money spent on Westlaw and PACER fees, faxing/copying/scanning, and postage” but noting that the plaintiffs had withdrawn their request for $600 in expert fees). Accordingly, the Court denies Plaintiffs’ request for $13,982.05 in expert fees. ECF No. 164 at 3. None of the eases cited by either party considers whether the expenses of a settlement administrator should be included as part Of a “reasonable attorneys’ fee,” and the Court is1 aware of no authority that has reached this question. However, courts, including this one, have awarded settlement administrator expenses as part of “litigation costs.” E.g., Deatrick v. Securitas Sec. Servs. USA, Inc., No. 13-cv-05016-JST, 2016 WL 5394016, at *7 (N.D. Cal. Sept. 27, 2016). In addition, the terms of the settlement agreement explicitly allow for recovery of such expenses: “Class counsel may apply to the Court no later than fifty-six (56) days prior to the Fairness Hearing for an award of attorneys’ fees and expenses, including for the Settlement Administrator’s fees and expenses.” ECF No. 125 at 40. The Court therefore denies Defendants’ request to strike the settlement administrator’s expenses from Plaintiffs’ fee award. Finally, the Court reduces the amount of costs Plaintiffs claim for" }, { "docid": "9682635", "title": "", "text": "WL 829094, at *4 (citing In re Chance, 831 F.3d 1335, 1340-41 (11th Cir. 2016); United States v. Britto, No. 04-143, 2017 WL 515007, at *1-2 (N.D. Okla. Feb. 8, 2017); United States v. Mims, Nos. 05-20079-01, 16-2332, 2017 WL 477091, at *3 (D. Kan. Feb. 6, 2017); Shabazz v. United States, No. 16-1083, 2017 WL 27394, at *5 (D. Conn. Jan. 3, 2017); Diaz v. United States, Nos. 16-323, 11-381, 2016 WL 4524785, at *5 (W.D.N.Y. Aug. 30, 2016)). Thus, a majority of courts that have considered the issue “have held that—when unclear on which ACCA clause the sentencing judge rested a predicate conviction—the petitioner’s burden is to show only that the sentencing judge may have used the residual clause.” See United States v. Winston, 207 F.Supp.3d 669, 677 (W.D. Va. 2016) (collecting cases), vacated on other grounds, 850 F.3d 677 (4th Cir. 2017). This reduced burden makes sense for a number of reasons, including the fact that there was no practical reason for judges to identify whether they weré relying upon the elements or residual clause prior to June 26, 2015, when the Supreme Court decided in Johnson (2015) that the residual clause was void for vagueness, because “[pjrior convictions that were not violent felonies under, the elements clause often fell under the residual clause.” Booker, 240 F.Supp.3d at 168, 2017 WL 829094, at *3 (citing United States v. Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016)). Accordingly, this Court adopts the majority position taken by courts that have addressed this issue and only requires that Mr. Brown demonstrate that this Court at sentencing may have relied upon the residual clause. Mr. Brown has. met that burden. See Def.’s Reply, ECF No. 50 at 7 (explaining that “[t]he record is certainly unclear in Mr. Brown’s case”). Second, the government argues that the claim in Mr. Brown’s § 2255 motion is grounded in Johnson (2010) rather than Johnson (2015) because the “bulk of [Mr. Browm’s] motion is devoted to arguing that AWDWIK does not qualify as a violent felony under the elements clause because it can be committed without" }, { "docid": "9274833", "title": "", "text": "19, 2017. Defendants object to the $ 600 hourly rate sought for Mr. Menken and argue that his hourly rate should be set at $ 450. (Opp. Mem. at 13.) However, given Mr. Menken's vast experience practicing law and in wage-and-hour cases, the Court finds that his $ 600 hourly rate is reasonable and is consistent with other cases in this district. See, e.g. , Dixon v. Agbai , No. 15-CV-850 (AT) (AJP), 2016 WL 3702749, at *15 (S.D.N.Y. July 8, 2016), report and recommendation adopted , 2016 WL 5660246 (S.D.N.Y. Sept. 28, 2016) (\"rates awarded to experienced civil rights attorneys over the past ten years have ranged from $ 250 to $ 600\") (citation omitted); Powell v. Metro One Loss Prevention Servs. Grp. , 12-CV-4221 (LAP) (DF), 2015 WL 9287121, at **2-3 (S.D.N.Y. Feb. 5, 2015), report and recommendation adopted , 2015 WL 9255338 (S.D.N.Y. Dec. 17, 2015) (setting hourly rate for senior partner in employment case at $ 650). Defendants object to the $ 400 hourly rate for Mr. Simpson and suggest that he be awarded an hourly rate of $ 350. (Opp. Mem. at 13-14.) The Court agrees with Defendants' suggestion. Mr. Simpson was not a partner during most of the time this case has been pending. He joined Beranbaum Menken in October 2015, with no prior experience in wage-and-hour cases, and started working on this case in January 2016. (Time records, ECF No. 195-3, at 12.) A $ 350 hourly rate for Mr. Simpson is consistent with the rate awarded in this district to attorneys of similar experience. See Rosado v. City of N.Y. , No. 11-CV-4285 (SAS), 2012 WL 955510 at *5 (S.D.N.Y. Mar. 15, 2012) (awarding $ 350 an hour for an attorney with \"at least three years['] experience in the area of civil rights and nine years['] experience in general litigation\"). Defendants object to the $ 300 hourly rate sought for Ms. Moore and suggest that her hourly rate be reduced to $ 225 per hour, based upon their presumption that \"she was not admitted until late 2014 and has been practicing for" }, { "docid": "20436367", "title": "", "text": "Washington from June 13, 2009 to December 11, 2012; (5) all individuals who were employed as RMs in the State of Oregon from June 13, 2009 to December 11, 2012; and (6) all individuals who were employed as RMs in the State of Maine from June 13, 2009 to December 11, 2012. II. BACKGROUND After exchanging informal discovery to enable Plaintiffs to calculate damages and undertaking extensive and vigorous negotiations, the parties reached a settlement totaling $4.9 million. Decl. of Justin M. Swartz in Supp. of Pis.’ Mot. for Certification of the Settlement Class, Final Approval of the Class Action Settlement, and Approval of the FLSA Settlement (“Swartz Deck”) ¶¶ 4-13. The parties reached this settlement after a formal mediation under the supervision of an experienced employment law mediator, David Rotman, Esq. Id. ¶ 11. At the mediation, the parties reached agreement on the settlement amount and several other key terms. Id. ¶ 11. During the next several months, the parties negotiated the remaining terms of the settlement, which were memorialized in a formal settlement agreement (“Settlement Agreement”). Id. ¶ 12. On December 11, 2012, this Court entered an Order preliminarily approving the settlement on behalf of the class set forth therein (the “Class” or the “Class Members”), conditionally certifying the settlement class, appointing Outten & Golden LLP and Shavitz Law Group P.A. as Class Counsel, and authorizing notice to all Class Members. ECF No. 13. On December 31, 2012, a claims administrator sent Court-approved notices to all Class Members informing them of their rights under the settlement, including the right to opt out or object to the settlement for Class Members in the six states where Rule 23 claims were brought, and of Class Counsel’s intention to seek up to one-third of the settlement fund for attorneys’ fees, and their out-of-pocket expenses. Swartz Deck, Ex. B (Gyomber Deck) ¶ 6. No Class Members objected to the settlement, and eight opted out of the settlement. Id. ¶¶ 12-13. On March 4, 2013, Plaintiffs filed a Motion for Certification of the Settlement Class, Final Approval of the Class Action Settlement, and" }, { "docid": "19436068", "title": "", "text": "7. After \"thoroughly consider[ing the] documentary evidence and testimony\" the IJ concluded that the Government \"met its burden of demonstrating by clear and convincing evidence that [Liborio Ramos] poses a danger to the community.\" Id. Finally, the IJ \"considered whether there is any condition of release that would ensure the public safety,\" but concluded there was not because Liborio Ramos \"has little regard for the law,\" given that she was on probation at the time of her second DUI. Id. at 9. Unlike in her first order, the IJ did not analyze whether Liborio Ramos was a flight risk, id., and the Government no longer justifies Liborio Ramos's detention on this ground. II. JURISDICTION The Court earlier concluded that it had jurisdiction over Liborio Ramos's habeas petition, ECF No. 19, and now reaches the same conclusion. This Court \"has habeas jurisdiction under 28 U.S.C. § 2241 to review [ ] bond hearing determinations for constitutional claims and legal error.\" Singh v. Holder, 638 F.3d 1196, 1200-01 (9th Cir. 2011). \"[A]lthough the Attorney General's discretionary judgment...shall not be subject to review, claims that the discretionary process itself was constitutionally flawed are cognizable....\" Id. at 1202 (citations omitted). This Court therefore has jurisdiction to review Liborio Ramos's claim that her bond hearing, to which she was entitled under Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) as an immigrant detained for over six months under 8 U.S.C. § 1231(a)(6), was legally erroneous and unconstitutional. See Sales v. Johnson, No. 16-CV-01745-EDL, ECF No. 17 at 8 (N.D. Cal. April 27, 2017); Obregon v. Sessions, No. 17-CV-01463-WHO, 2017 WL 1407889, at *4 (N.D. Cal. Apr. 20, 2017) ; Castaneda v. Aitken, No. 15-CV-01635-MEJ, 2015 WL 3882755, at *7-8 (N.D. Cal. June 23, 2015) ; Espinoza v. Aitken, No. 5:13-CV-00512 EJD, 2013 WL 1087492, at *3 (N.D. Cal. Mar. 13, 2013). The Government calls the Court's jurisdiction into question. It notes that shortly after the Court issued its prior order, but before the IJ issued her second bond memorandum, the Supreme Court ruled that immigrants detained under different statutory provisions, 8 U.S.C. §§ 1225(b)(1)," }, { "docid": "9458688", "title": "", "text": "complaint. That same day the parties entered into a Stipulation of Settlement in which they agreed upon a settlement of the action subject to the Court’s approval. Pursuant to an order dated June 13, 1997, this Court gave preliminary certification of the class for settlement purposes, directed the issuance of notice of the proposed settlement to the class, and scheduled a “fairness hearing” for October 24, 1997. The Notice included a description of the litigation, the class, and the terms of the proposed settlement (including the relief available and the release to be given to Hancock). It also specified the date and location of the hearing for final approval, the procedure and deadline for filing objections to the settlement and/or requests for exclusion from the class, the amount of attorneys’ fees and costs that were sought by class counsel, and a toll-free telephone number that class members could call for more information about the settlement. The parties mailed the notice to 3.8 million class members and published a summary notice in sixty eight newspapers (with a combined circulation in excess of 21.9 million), as well as on John Hancock’s Internet Web site. (Cordingley Decl. II29; Berman Decl. 11115, 8.) The deadline for postmarking exclusion requests was October 3, 1997. As of October 16, 1997, 4,404 requests for exclusion had been received. (Cordingley Supp. Decl. H 8.) These requests, which relate to 6,009 policies, represent approximately 0.16% of the 3.8 million policies in the class. (Cordingley Supp. Decl. H 8.) In addition to exclusion requests, fifty-three objections were timely submitted from the beneficiaries of 137 policies. As a result of these objections, and of discussions with various state regulatory authorities, several amendments were made to the stipulation of settlement in mid-October. All these changes benefitted class members; they were primarily addressed to the form of the final notice. The “fairness hearing” was held on October 24th for the purpose of determining whether the class should be finally certified, whether the settlement should be approved as fair, reasonable, and adequate, and whether the application of plaintiffs’ counsel for an award of attorneys’" }, { "docid": "19479800", "title": "", "text": "unfounded summonses to fill quotas, that reliance is misplaced. The Stinson settlement was not approved until June 2017. See 256 F.Supp.3d 283 (S.D.N.Y. 2017). Plaintiff's alleged false arrest occurred in September 2015-almost two years prior to the settlement. While Plaintiff only cites to the settlement in Stinson , the Court notes that Plaintiff failed to attach the actual settlement itself to the documents submitted to the Court. Further, the Court conducted additional research on the settlement and found that neither the settlement-which references earlier proceedings in the case-nor the earlier case proceedings contains reference to any substantiated claims against the NYPD through the Civilian Complaint Review Board (\"CCRB\") that would have effectively put the City of New York on notice regarding any potential constitutional violations on behalf of the NYPD. Although Plaintiff does not cite to any other earlier proceedings except the June 7, 2017 settlement, such earlier proceedings themselves and complaints associated therewith do not constitute the requisite \"actual or constructive notice\" necessary to establish the deliberate indifference for a Monell claim. See Harrison v. City of New York , No. 15-cv-4141 (RWS), 2017 WL 4162340, at *7, 2017 U.S. Dist. LEXIS 152166, at *19 (S.D.N.Y. Sept. 18, 2017) (granting the motion to dismiss on deliberate indifference claims, denying the plaintiff's argument that lawsuits, notices of claims and complaints constituted notice of insufficient training and supervision). Plaintiff cites to the Second Circuit's review of an order granting summary judgment in Matthews . See SAC ¶ 63. The Second Circuit vacated summary judgment and remanded the case to the district court. See generally 779 F.3d 167 (2d Cir. 2015). After remand, the parties settled. See ECF No. 67, No. 12-cv-1354 (PAE)." } ]

[ { "docid": "17920336", "title": "", "text": "question is that of jurisdiction over the various claims raised by Citizens, which we will consider separately, each on its own jurisdictional merits. As we noted in the case of In re Dr. C. Huff Co., Inc., the 1984 Amendments to the Bankruptcy Code established three classes of legal controversies which can arise before a U.S. Bankruptcy Court. They are: 1). “Core” cases; 2). “Noncore” related cases; and 3). “Noncore” unrelated cases. The extent of the court’s authority is different in each class of cases. In the present action, under the provisions of 28 U.S.C. § 157(b)(1), we have core proceeding jurisdiction to hear and decide Citizens’ action to determine the extent, nature, and priority of their lien on the debtor’s accounts receivable. However, that fact alone does not confer power to hear and decide Citizens’ actions against Schaberg and Brothers. Citizens’ complaint against Schaberg creates a proceeds priority dispute between two creditors, and Citizens’ action against Brothers is a state law proceeding against the guarantor of a note. No provision of Section 157(b)(1) expressly covers these two causes of action, and while the 15 types of proceedings listed in Section 157(b)(1) are not the only actions which are to be considered “core proceedings”, state law claims such as the ones brought by Citizens against Brothers and Schaberg are clearly not core proceedings for purposes of Section 157(b)(1). In a second category of controversies, that of noncore, related cases, bankruptcy courts may conduct hearings but cannot enter final orders without the consent of the parties. The term “related proceeding” is not defined in either Section 157 or in Section 1334 of Title 28 of the United States Code. The definition given to the term by the Interim Emergency Rules— adopted by the federal court system in the wake of the Northern Pipeline Construction Co. v. Marathon Pipe Line case— was so broad as to be of no guidance in considering the limits of jurisdiction. Courts and scholars have devised various definitions. In Dr. C. Huff we adopted the Tenth Circuit Court of Appeal’s definition of “related proceeding” as a restrictive" } ]

[ { "docid": "18515231", "title": "", "text": "arise under title 11, it must arise in a case under title 11 for it to be a core proceeding. Specific actions that constitute core pro ceedings are delineated in 28 U.S.C. § 157(b)(2). This list is not exhaustive of those cases which can constitute core proceedings. Duck v. Munn, (In re Mankin), 823 F.2d 1296, 1300-01 (9th Cir.1987), cert. denied, Munn v. Duck, 485 U.S. 1006, 108 S.Ct. 1468, 99 L.Ed.2d 698 (1988). Whether or not a matter is core depends upon its relationship to the bankruptcy court’s basic function in administering the debtor’s estate. In re Arnold Print Works, Inc. v. Apkin (In re Arnold Print Works, Inc.), 815 F.2d 165 (1st Cir.1987). Essentially, a core proceeding is one which has no existence outside of the bankruptcy case. In re Wood, 825 F.2d. at 97; In re Texaco, Inc., 85 B.R. 934, 937 (Bankr.S.D.N.Y.1988). Trager’s action is not core, arising under a case under title 11, because it does not in any way implicate the administration of the estate of the debtor, North Star. North Star has neither a possessory nor a beneficial interest in the funds which are the subject of this proceeding. Furthermore, Trager’s action does not rely on bankruptcy law for its existence. Rather, the matter is only incidental to North Star’s bankruptcy case. The proceeding is a dispute between two non-creditors over property that McSpedon, a claimant, is entitled to under North Star’s plan of reorganization. This court rejects Trager’s argument that this proceeding is core pursuant to 28 U.S.C. § 157(b)(2)(E), which provides that core proceedings include “determinations of the validity, extent, or priority of liens.” 28 U.S.C. § 157(b)(2)(E). Core jurisdiction under 28 U.S.C. § 157(b)(2)(E) only relates to liens encumbering property of the debt- or’s estate. In re Israel, 112 B.R. 481, 483 (Bankr.D.Conn.1990); In re Edwards, 106 B.R. 161, 163 (Bankr.N.D.Ill.1989); In re Holland Indus., Inc., 103 B.R. 461, 465 (Bankr.S.D.N.Y.1989). Here, the liens in question do not impede the debtor’s property. Rather, they relate to McSpedon’s interest in the funds and attach when McSpe-don’s right to the property accrues." }, { "docid": "23312943", "title": "", "text": "submit its findings of fact and conclusions of law to a U.S. District Court, for that court’s entry of final judgment and possible de novo review. Although neither Section 157 nor Section 1334 of 28 U.S.C. gives a definition of what constitutes a related proceeding, the case of Matter of Colorado Energy Supply, Inc., from the Tenth Circuit Court of Appeals provides some guidance on the matter. In its opinion the court stated that: “Related proceedings ... are [those] adversary cases and controversies which are triable only by Article III Courts or State Courts ... [They] are traditional state common-law actions, not made subject to a federal rule of decision, and related only peripherally to an adjudication of bankruptcy under federal law”.... In case at the bar we are confronted with a priority dispute between two creditors of the debtor corporation. Their conflict involves no issues of bankruptcy law, only questions of state commercial law which apparently have not been addressed by any Kentucky court. Neither under the 1984 Act nor according to pre-Marathon court decisions does this case come within our reach. It does not involve either property of the debtor or property of the estate. Any decisions by this court on the merits would have no effect whatsoever on any aspect of the debtor’s bankruptcy proceeding. We are unable to find even the “peripheral relation” to the bankruptcy that the Colorado Energy test would allow. It is clear that controversies of this type fall within the classification of non-core, unrelated cases over which this court has no jurisdiction. To summarize, our dismissal of this action for want of jurisdiction would obtain regardless of whether we view our own powers through the constricted lens of the 1984 Act, under the Marathon rule, or according to pve-Marathon case law dealing with “property of the estate”. It follows that the length of time the case has been before the bankruptcy court has no bearing on its disposition. In conclusion we hold that a bankruptcy court lacks the jurisdiction to either hear or decide private lien priority disputes between two creditors which" }, { "docid": "23653148", "title": "", "text": "case under title 11 shall be referred to the bankruptcy judges for the district.” Pursuant to this section, this Court routinely refers bankruptcy cases within the District of Delaware to the Bankruptcy Court. Section 157 also divides cases heard by the Bankruptcy Court into “core” and “non-core” bankruptcy proceedings and defines the parameters of Bankruptcy Court jurisdiction to hear and adjudicate such referred eases and proceedings. Title 28, section 157(b)(1) of the United States Code provides that: Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title. A non-inclusive list of “core” proceedings arising under Title 11 is set forth at 28 U.S.C. § 157(b)(2) which specifies, inter alia, matters concerning the administration of the estate: (B) allowance or disallowance of claims against the estate or exemptions from property of the estate....; * * * (E) orders to turn over property of the estate; (F) proceedings to determine, avoid, or recover preferences; (G) motions to terminate, annul or modify the automatic stay; * * * (I) determinations as to the dischargeability of particular debts; * * * (K) determinations of the validity, extent, or priority of liens; [and] * * * (0) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security-holder relationship_ A “non-core” proceeding is defined in 28 U.S.C. § 157(c)(1) as a “proceeding that is not a core proceeding but that is otherwise related to a case under title 11.” In accordance with the instruction in Marathon that there must be a “limiting principle” governing the delegation of authority to Bankruptcy Judges over cases merely “related to” bankruptcy petitions in non-core proceedings: ... the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy" }, { "docid": "18603067", "title": "", "text": "dischargeability of particular debts; (J) objections to discharges; (K) determinations of the validity, extent, or priority of liens; (L) confirmations of plans; (M) orders approving the use or lease of property, including the use of cash collateral; (N) orders approving the sale of property other than property resulting from claims brought by the estate against persons who have not filed claims against the estate; and (O) other proceeding affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful death claims. (3) The bankruptcy judge shall determine, on the judge's own motion or on timely motion of a party, whether a proceeding is a core proceeding under this subsection or is a proceeding that is otherwise related to a case under title 11. A determination that a proceeding is not a core proceeding shall not be made solely on the basis that its resolution may be affected by State law.... (4) Non-core proceedings under section 157(b)(2)(B) of title 28, United States Code, shall not be subject to the mandatory abstention provisions of section 1334(c)(2). (c)(1) A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge's proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. (2) Notwithstanding the provisions of paragraph (1) of this subsection, the district court, with the consent of all the parties to the proceeding, may refer a proceeding related to a case under title 11 to a bankruptcy judge to hear and determine and to enter appropriate orders and judgments, subject to review under section 158 of this title.” (d) The district court may withdraw, in whole or in part, any case or proceeding referred under this section," }, { "docid": "23312941", "title": "", "text": "court in this matter, for they cannot confer jurisdiction by agreement or waiver if it does not otherwise exist. Under the new bankruptcy amendments relating to jurisdiction, three separate classes of legal controversies can arise before a U.S. Bankruptcy Court: 1) “core” cases; 2) noncore related cases; and 3) noncore unrelated cases. The extent of the Bankruptcy Court’s jurisdiction is different in each class of cases. Under the provisions of 28 U.S.C. § 157(b)(1) a bankruptcy court has the authority to both hear and decide only “core” proceedings which arise either under the bankruptcy code or from a case under the bankruptcy code. The term “core proceedings” is a new term of art, coined to describe the concept of foreshortened jurisdictional boundaries of bankruptcy courts. Only time and case law can bring the concept out of the chiaroscuro of new legislation into well-rounded and comprehensive definition. The new Section 157(b)(1) is an effort of definition by inclusion, listing fifteen separate types of actions and proceedings, of different procedural species but all generically springing from the in rem jurisdictional fundament of the 1984 Act. Among those matters identified as “core proceedings” are “determinations of the validity, extent, or priority of liens”, 28 U.S.C. § 157(b)(2)(E), into which the present controversy arguably could be fit. But such a categorization overlooks the necessity that we deal with property of the estate in entertaining such questions. Section 157(b)(2)(E) must be read as empowering us only to make “determinations of the validity, extent, or priority of liens upon property of the estate.” Otherwise, we would be asserting a form of jurisdiction ferae naturae, capable of the rampant adjudication of property rights wherever found and by whomever owned. We therefore conclude that the instant controversy is not a “core proceeding” under § 157(b)(2)(E) which allows our intervention. We will next consider whether we may rule on the case by characterizing it as a noncore but “related” proceeding. Bankruptcy courts are given authority by the 1984 Act to hear noncore cases which are “related” to a bankruptcy proceeding. After hearing a related case a bankruptcy court must" }, { "docid": "18756577", "title": "", "text": "upon the estate being administered in bankruptcy.’ ” Id. (citing Mazur v. U.S. Air Duct Corp., 8 B.R. 848, 851 (Bankr.N.D.N.Y.1981) (emphasis in original)). Although situations may arise where an extremely tenuous connection to the estate would not satisfy the jurisdictional requirement, we believe that a broader interpretation of the statute more closely reflects the congressional intent in adopting the new bankruptcy laws. Id. at p. 634. The “related to” language must therefore be broadly construed, but within the limitations of 28 U.S.C. § 1334 and 28 U.S.C. § 157(b)(3) and (c)(1). Cf. White Motor Corp. v. Citibank, N.A., 704 F.2d 254 (6th Cir.1983) where it is stated: Peripheral, non-traditional bankruptcy issues ... cannot be adjudicated by a non-Art. III. judge. [Bankruptcy judges may not issue binding judgments in ‘related’ proceedings. In these cases, the bankruptcy judges are limited to submitting findings of fact and proposed rulings .... Id. at 263. Fully realizing that jurisdictional issues must be resolved on a case-by-case basis pursuant to 28 U.S.C. § 157(b)(3), this Court has reviewed many cases to discover an acceptable working definition of the language “related to”. Such a definitional standard is set forth in Citizens National Bank of Bowling Green v. Schaberg Lumber Co. (In re Bowling Green Truss, Inc.), 53 B.R. 391 (B.C.W.D.Ky.1985) where it is stated: If an action has a direct and substantive impact on the bankruptcy estate or its administration, then it is related to the bankruptcy case and jurisdiction exists. But if a controversy has only a vague or incidental connection with a pending case, and any impact its resolution may have on the bankruptcy case is speculative, indirect or incidental, then the matter is unrelated to the bankruptcy case and [the bankruptcy court should] not hear it. See, Wisconsin Department of Industry, Labor & Human Relations v. Marine Bank Monroe (In re Kubly), 818 F.2d 643 (7th Cir.1987). Applying the above working definitional standard to the various causes of action asserted by the parties in this adversary proceeding, this Court concludes and IT IS HEREBY ORDERED: 1. The counterclaim asserted by the Defendants to" }, { "docid": "23653149", "title": "", "text": "orders to turn over property of the estate; (F) proceedings to determine, avoid, or recover preferences; (G) motions to terminate, annul or modify the automatic stay; * * * (I) determinations as to the dischargeability of particular debts; * * * (K) determinations of the validity, extent, or priority of liens; [and] * * * (0) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security-holder relationship_ A “non-core” proceeding is defined in 28 U.S.C. § 157(c)(1) as a “proceeding that is not a core proceeding but that is otherwise related to a case under title 11.” In accordance with the instruction in Marathon that there must be a “limiting principle” governing the delegation of authority to Bankruptcy Judges over cases merely “related to” bankruptcy petitions in non-core proceedings: ... the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. 28 U.S.C. § 157(c)(1). Under this new jurisdictional framework, the process of referral occurs under the supervision and control of the District Court. See, e.g., United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). III. MANDATORY WITHDRAWAL Title 28, section 157(d) of the United States Code permits the District Court to withdraw its reference of a bankruptcy petition or any case or proceeding relating to the petition: The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown. The district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce. The first sentence of section 157(d) provides" }, { "docid": "2075093", "title": "", "text": "estate or exemptions from property of the estate; orders to turn over property of the estate; proceedings to determine, avoid, or recover preferences; motions to terminate, annul or modify the automatic stay; determinations as to the dischargeability of particular debts and the validity, extent, or priority of liens; and other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security-holder relationship. § 158(a) makes clear that orders and judgments entered in core bankruptcy proceedings are subject to appeal to the district court. § 157(c)(1) deals with non-core proceedings. A non-core proceeding is defined as a “proceeding that is not a core proceeding but that is otherwise related to a case under title 11.” Accordingly, unless otherwise consented to by the parties, see § 157(c)(2), the bankruptcy judge has no power to make determinations as to non-core proceedings but has power only to recommend and, thus, is acting as a mere adjunct to the district court: the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. § 157(c)(1). Under this jurisdictional framework, issues not at the core of the federal bankruptcy power are defined as non-core proceedings thus ensuring that those matters, if desired by the parties, will ultimately receive de novo review by an Article III court. The entire process, including the initial referral to the bankruptcy court, takes place under the total control and jurisdiction of the district court. Cf. United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (Federal Magistrate’s Act, 28 U.S.C. § 636). Under § 157(d), district courts may withdraw either core or non-core proceedings on their own motion or upon the motion of either party. § 157(d) also includes the mandatory withdrawal provision at issue in this case whereby certain issues must be heard by" }, { "docid": "1151132", "title": "", "text": "that is not a core proceeding but that is otherwise related to a case under title 11.” While the term “related proceeding” is not defined in 28 U.S.C. § 157 or § 1334, a number of cases have attempted to define the terms of “related to” or “related proceeding”. See, e.g. In re Cemetery Development Corp., 59 B.R. 115 (Bankr.M.D.La.1986); In re John Peterson Motors, Inc., 56 B.R. 588 (Bankr.D.Minn.1986); In re Bowling Green Truss, Inc., 53 B.R. 391 (Bankr.S.D.Ohio 1985); Baldwin United Corp. v. Thompson, supra. The court in the Bowling Green Truss case articulated what constitutes a “related proceeding” in a bankruptcy when it observed: A judgment must be made on a case-by-case basis after careful consideration of the facts surrounding both the specific controversy at hand and those generally attending the entire bankruptcy. If an action has a direct and substantive impact on the bankruptcy estate or its administration, then it is related to the bankruptcy case and jurisdiction exists. But if a controversy has only a vague or incidental connection with a pending case, and any impact its resolution may have on the bankruptcy estate is speculative, indirect or incidental, then the matter is unrelated to the bankruptcy case and we would not hear it. Id. at 394. This Court finds the definition as set forth in the Third Circuit case of Pacor, Inc. v. Higgins {In re Pacor), 743 F.2d 984 (3rd Cir.1984), to be very descriptive. The Third Circuit stated: The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy. E.g., In re Hall, 30 B.R. [799] at 802 [ (Bankr.M.D.TN 1983)]; In re General Oil Distributors, Inc., 21 B.R. 888, 892 n. 13 (Bankr.E.D.N.Y.1982); In re U.S. Air Duct Corp., 8 B.R. 848, 851 (Bankr.N.D.N.Y.1981); 1 Collier on Bankruptcy para. 3.01 at 3-49. Thus, the proceeding need not necessarily be against the debt- or or against the debtor’s property. An action is related to bankruptcy if the outcome" }, { "docid": "23312942", "title": "", "text": "in rem jurisdictional fundament of the 1984 Act. Among those matters identified as “core proceedings” are “determinations of the validity, extent, or priority of liens”, 28 U.S.C. § 157(b)(2)(E), into which the present controversy arguably could be fit. But such a categorization overlooks the necessity that we deal with property of the estate in entertaining such questions. Section 157(b)(2)(E) must be read as empowering us only to make “determinations of the validity, extent, or priority of liens upon property of the estate.” Otherwise, we would be asserting a form of jurisdiction ferae naturae, capable of the rampant adjudication of property rights wherever found and by whomever owned. We therefore conclude that the instant controversy is not a “core proceeding” under § 157(b)(2)(E) which allows our intervention. We will next consider whether we may rule on the case by characterizing it as a noncore but “related” proceeding. Bankruptcy courts are given authority by the 1984 Act to hear noncore cases which are “related” to a bankruptcy proceeding. After hearing a related case a bankruptcy court must submit its findings of fact and conclusions of law to a U.S. District Court, for that court’s entry of final judgment and possible de novo review. Although neither Section 157 nor Section 1334 of 28 U.S.C. gives a definition of what constitutes a related proceeding, the case of Matter of Colorado Energy Supply, Inc., from the Tenth Circuit Court of Appeals provides some guidance on the matter. In its opinion the court stated that: “Related proceedings ... are [those] adversary cases and controversies which are triable only by Article III Courts or State Courts ... [They] are traditional state common-law actions, not made subject to a federal rule of decision, and related only peripherally to an adjudication of bankruptcy under federal law”.... In case at the bar we are confronted with a priority dispute between two creditors of the debtor corporation. Their conflict involves no issues of bankruptcy law, only questions of state commercial law which apparently have not been addressed by any Kentucky court. Neither under the 1984 Act nor according to pre-Marathon court" }, { "docid": "18756578", "title": "", "text": "to discover an acceptable working definition of the language “related to”. Such a definitional standard is set forth in Citizens National Bank of Bowling Green v. Schaberg Lumber Co. (In re Bowling Green Truss, Inc.), 53 B.R. 391 (B.C.W.D.Ky.1985) where it is stated: If an action has a direct and substantive impact on the bankruptcy estate or its administration, then it is related to the bankruptcy case and jurisdiction exists. But if a controversy has only a vague or incidental connection with a pending case, and any impact its resolution may have on the bankruptcy case is speculative, indirect or incidental, then the matter is unrelated to the bankruptcy case and [the bankruptcy court should] not hear it. See, Wisconsin Department of Industry, Labor & Human Relations v. Marine Bank Monroe (In re Kubly), 818 F.2d 643 (7th Cir.1987). Applying the above working definitional standard to the various causes of action asserted by the parties in this adversary proceeding, this Court concludes and IT IS HEREBY ORDERED: 1. The counterclaim asserted by the Defendants to obtain relief from stay or abandonment regarding assets subject to the Defendants’ security interest in land contract vendors’ rights constitutes a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (E), (G), and (0). However, because the Court previously entered an abandonment order and there was testimony the Defendants had sold the business assets in accordance with Michigan law, this matter has been resolved and is therefore moot. 2. The cause of action brought by the Trustee against the Defendants to obtain a rescission of the prepetition sale of the business assets and to recover damages based upon fraud in the inducement under State law is a noncore related proceeding. This Court will therefore make recommended findings of fact and conclusions of law and submit such recommendations to the district court in accordance with 28 U.S.C. § 157(c)(1), Bankruptcy Rule 9033, and United States District Court for the Western District of Michigan Local Rule 66. 3. The cause of action asserted by the Debtor against the Defendants to obtain a rescission and to recover damages regarding" }, { "docid": "1793339", "title": "", "text": "Title 11. In both cases the defendant filed a third party complaint seeking indemnification on a state law theory. In both cases the third party complaint is so related to the initial complaint, for which federal question jurisdiction exists, that all of the claims form part of the same Article III case or controversy within the meaning of § 1367 and Gibbs. Jurisdiction therefore exists here under § 1367, even if it did not exist under § 1334. It remains to determine whether the bankruptcy jurisdiction that exists is core or noncore. This may be a moot point because by filing cross motions for summary judgment both parties may be deemed to have consented to the bankruptcy court’s determinations pursuant to 28 U.S.C. § 157(c)(2). But even without such consent the third party complaint should be deemed to be core. This is because under § 157(b) the core determination is made with respect to the entire proceeding, not with respect to each particular claim made within a proceeding. “Proceeding” is a term of art that refers to adversary proceedings, which are defined by Bankruptcy Rule 7001. Section § 1334(b) makes clear that jurisdiction exists, or does not exist, for the entire “proceeding,” and the premise of both § 1367 and Gibbs is that even third party actions may be deemed to be part of “the same case or controversy.” Nothing in § 157 suggests that “core proceeding” is used in any less-inclusive sense, to apply only to portions or certain claims pending in a case or proceeding. Consequently if the proceeding is core because, for example as in this case, it arises from a trustee’s lien avoidance action, which is specifically defined to be “core” by § 157(b)(2)(H) & (K), the entire “case or controversy” must be core. Issue The resolution of this matter lies within the Dealer Agreement between the two parties. The principal question is: Did RV Traders fulfill its contractual obligation to provide Conseco “a valid and perfected first priority security interest in the Property”? Analysis Absent the bankruptcy filing by Lockridge, RV Traders may have satisfied" }, { "docid": "18594496", "title": "", "text": "drawn, then, between those civil proceedings which, although grounded in substantive state law, “arise in a case” under the Bankruptcy Code and those proceedings which merely “relate to” a case under the Code. Some light is shed on this distinction by the jurisdictional provisions of 28 U.S.C. § 157, which establish that, in addition to “all cases under Title 11” bankruptcy judges may hear and decide “all core proceedings arising under Title 11” or “arising in a case under Title 11”. 28 U.S.C.S. § 157(b)(1). A bankruptcy judge may also hear “a proceeding that is not a core proceeding but that is otherwise related to a case under Title 11”, but may only submit proposed findings and conclusions in such a case. 28 U.S.C.S. § 157(c)(1). Thus, a claim which does not involve a core proceeding, but is otherwise “related to” a bankruptcy case, is somewhat more removed from the central bankruptcy case itself and, under Marathon, the bankruptcy court’s findings in such a case may not constitutionally become final, absent consent of the parties, without district court review. § 157(c)(2). Thus, the distinction between “core” and “non-core” proceedings is relevant to the abstention issue in that abstention is mandatory only in “related”, that is, non-core matters. The Code does not provide a conclusive definition of “core” and “non-core” proceedings. Rather, Section 157(b)(2) lists fourteen examples of matters which are considered “core”. Those which are relevant here are: (B) allowance or disallowance of claims against the estate or exemptions from property of the estate, and estimation of claims ... for the purpose of conforming a plan under Chapter 11....; (G) motions to ... modify the automatic stay; (M) orders approving the use or lease of property; and (0) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship. The dispute at issue in this case, which is a motion by the debtor to assume the lease, would appear to fit within each of these four provisions of Section 157(b)(2). However, the landlord argues that the claim at" }, { "docid": "12795777", "title": "", "text": "respect to obtaining credit; (E) orders to turn over property of the estate; (F) proceedings to determine, avoid, or recover preferences; (G) motions to terminate, annul or modify the automatic stay; (H) proceedings to determine, avoid, or recover fraudulent conveyances; (I) determinations as to the discharge-ability of particular debts; (J) objections to discharges; (K) determinations of the validity, extent, or priority of liens; (L) confirmations of plans; (M) orders approving the use or lease of property, including the use of cash collateral; (N) orders approving the sale of property other than property resulting from claims brought by the estate against persons who have not filed claims against the estate; and (O) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful death claims. (3) The bankruptcy judge shall determine, on the judge’s own motion or on timely motion of a party, whether a proceeding is a core proceeding under this subsection or is a proceeding that is otherwise related to a case under title 11. A determination that a proceeding is not a core proceeding shall not be made solely on the basis that its resolution may be affected by State law. (4) Non-core proceedings under section 157(b)(2)(B) of title 28, United States Code, shall not be subject to the mandatory abstention provisions of section 1334(c)(2). APPENDIX — Continued (5) The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending. (c) (1) A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district" }, { "docid": "12804574", "title": "", "text": "the Bank’s rights, title and interest in or to the Painting, including without limitation the Bank’s lien against or in the Painting ... ”). The Trust argues that a determination that a proceeding is non-core shall not be made solely on the basis that its resolution may be affected by state law, as stated in 28 U.S.C. § 157(b)(3). STATEMENT OF JURISDICTION This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1334(a) and (e), 28 U.S.C. § 157(a), and the Standing Order of Reference signed by Acting Chief Judge Robert J. Ward dated July 10, 1984 (the “Order of Reference”). Determination of the lift-stay motion is a core proceeding. 28 U.S.C. § 157(b)(2)(G). As discussed herein, the relief Kraken seeks in its motion directly implicates the allowance of its claims against the estate and the determination of the validity of liens, which are core proceedings pursuant to 28 U.S.C. § 157(b)(2)(B) and (K), respectively- By virtue of the Order of Reference, the bankruptcy court has exclusive jurisdiction of all bankruptcy cases, as well as original but not exclusive jurisdiction of all civil proceedings arising under the Bankruptcy Code, or arising in or related to cases under the Bankruptcy Code. See 28 U.S.C. §§ 157(a) and (b), and 1334(a) and (b). The Court has exclusive jurisdiction over all property of the debtor as of the commencement of the case, as well as property of the estate, regardless of where the property is located. See 28 U.S.C. § 1334(e). “Matters that ‘arise under ’ the Bankruptcy Code are those that come before the court by virtue of a provision of the Bankruptcy Code.” Alan N. Resnick, The Enforceability of Arbitration Clauses in Bankruptcy, 15 Am. Bankr.Inst. L.Rev. 183, 193 (2007) (emphasis added). “Matters that ‘arise in ’ a case under the Bankruptcy Code are those based on a right created by the Bankruptcy Code and that, by their nature, can only be brought in a case under the Bankruptcy Code.” Id. “Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11," }, { "docid": "2075092", "title": "", "text": "any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judge for the district. Pursuant to this section, virtually all district courts have referred the bankruptcy cases within their districts to their respective bankruptcy courts. See, e.g., Standing Order, In Re General Rules of the Court (D.N.J. July 23, 1984). Section 157 divides cases heard by bankruptcy judges into core and non-core proceedings and defines the relationship between the bankruptcy and district courts. § 157(b)(1) establishes that: Bankruptcy judges may hear and determine all cases arising under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title. § 157(b)(2) consists of a non-inclusive list of core proceedings arising under Title 11 and specifies, among others, matters concerning the administration of the estate; allowance or disallowance of claims against the estate or exemptions from property of the estate; orders to turn over property of the estate; proceedings to determine, avoid, or recover preferences; motions to terminate, annul or modify the automatic stay; determinations as to the dischargeability of particular debts and the validity, extent, or priority of liens; and other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security-holder relationship. § 158(a) makes clear that orders and judgments entered in core bankruptcy proceedings are subject to appeal to the district court. § 157(c)(1) deals with non-core proceedings. A non-core proceeding is defined as a “proceeding that is not a core proceeding but that is otherwise related to a case under title 11.” Accordingly, unless otherwise consented to by the parties, see § 157(c)(2), the bankruptcy judge has no power to make determinations as to non-core proceedings but has power only to recommend and, thus, is acting as a mere adjunct to the district court: the bankruptcy judge shall submit proposed findings of fact and" }, { "docid": "18515232", "title": "", "text": "Star. North Star has neither a possessory nor a beneficial interest in the funds which are the subject of this proceeding. Furthermore, Trager’s action does not rely on bankruptcy law for its existence. Rather, the matter is only incidental to North Star’s bankruptcy case. The proceeding is a dispute between two non-creditors over property that McSpedon, a claimant, is entitled to under North Star’s plan of reorganization. This court rejects Trager’s argument that this proceeding is core pursuant to 28 U.S.C. § 157(b)(2)(E), which provides that core proceedings include “determinations of the validity, extent, or priority of liens.” 28 U.S.C. § 157(b)(2)(E). Core jurisdiction under 28 U.S.C. § 157(b)(2)(E) only relates to liens encumbering property of the debt- or’s estate. In re Israel, 112 B.R. 481, 483 (Bankr.D.Conn.1990); In re Edwards, 106 B.R. 161, 163 (Bankr.N.D.Ill.1989); In re Holland Indus., Inc., 103 B.R. 461, 465 (Bankr.S.D.N.Y.1989). Here, the liens in question do not impede the debtor’s property. Rather, they relate to McSpedon’s interest in the funds and attach when McSpe-don’s right to the property accrues. Related Jurisdiction Because Trager’s action is not a core proceeding, it must be “otherwise related to a case under title 11” within the meaning of 28 U.S.C. § 157(c) to sustain subject matter jurisdiction in this court. A bankruptcy judge may hear a proceeding that is not a core proceeding if it is otherwise related to a case under title 11. However, the bankruptcy judge may not determine or enter final orders in a related case without the consent of all parties to the action pursuant to 28 U.S.C. § 157(c)(2). Absent the requisite consent, the bankruptcy judge is required to submit proposed findings of facts and conclusions of law to the district court. Any final order or judgment shall be entered by the district court judge after considering the bankruptcy judge’s proposed findings and conclusions as well as any other appropriate de novo matters, as expressed in 28 U.S.C. § 157(c)(1). The standard for determining whether a civil proceeding is related to a bankruptcy case has been enunciated as follows: An action is related" }, { "docid": "9502960", "title": "", "text": "avoid, or recover preferences; (G) motions to terminate, annul, or modify the automatic stay; (H) proceedings to determine, avoid, or recover fraudulent conveyances; (I) determinations as to the dischargeability of particular debts; (J) objections to discharges; (K) determinations of the validity, extent, or priority of liens; (L) confirmations of plans; (M) orders approving the use or lease of property, including the use of cash collateral; (N) orders approving the sale of property other than property resulting from claims brought by the estate against persons who have not filed claims against the estate; and (0)other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful death claims. (3) The bankruptcy judge shall determine, on the judge’s own motion or on timely motion of a party, whether a proceeding is a core proceeding under this subsection or is a proceeding that is otherwise related to a case under title 11. A determination that a proceeding is not a core proceeding shall not be made solely on the basis that its resolution may be affected by State law. (4) Non-core proceedings under section 157(b)(2)(B) of title 28, United States Code, shall not be subject to the mandatory abstention provisions of section 1334(c)(2). (5) The district shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending. (c)(1) A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely" }, { "docid": "10182629", "title": "", "text": "the dischargeability of particular debts; (J) objections to discharges; (K) determinations of the validity, extent, or priority of liens; (L) confirmations of plans; (M) orders approving the use or lease of property, including the use of cash collateral; (N) orders approving the sale of property other than property resulting from claims brought by the estate against persons who have not filed claims against the estate; and (O) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful death claims. (3) The bankruptcy judge shall determine, on the judge's own motion or on timely motion of a party, whether a proceeding is a core proceeding under this subsection or is a proceeding that is otherwise related to a case under title 11. A determination that a proceeding is not a core proceeding shall not be made solely on the basis that its resolution may be affected by State law. (4) Non-core proceedings under section 157(b)(2)(B) of title 28, United States Code, shall not be subject to the mandatory abstention provisions of section 1334(c)(2). (5) The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending. (c)(1) A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge's proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. (2) Notwithstanding the provisions of paragraph (1) of this subsection, the district court, with the consent of all the parties to the" }, { "docid": "18904081", "title": "", "text": "credit; (E) orders to turn over property of the estate; (F) proceedings to determine, avoid, or recover preferences; (G) motions to terminate, annul, or modify the automatic stay; (H) proceedings to determine, avoid, or recover fraudulent conveyances; (I) determinations as to the dischargeability of particular debts; (J) objections to discharges; (K) determinations of the validity, extent, or priority of liens; (L) confirmations of plans; (M) orders approving the use or lease of property, including the use of cash collateral; (N) orders approving the sale of property other than property resulting from claims brought by the estate against persons who have not filed claims against the estate; and (O) other proceeding affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful death claims. (3) The bankruptcy judge shall determine, on the judge’s own motion or on timely motion of a party, whether a proceeding is a core proceeding under this subsection or is a proceeding that is otherwise related to a case under title 11. A determination that a proceeding is not a core proceeding shall not'be made solely on the basis that its resolution may be affected by State law.... (4) Non-core proceedings under section 157(b)(2)(B) of title 28, United States Code, shall not be subject to the mandatory abstention provisions of section 1334(c)(2). (c)(1) A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. (2) Notwithstanding the provisions of paragraph (1) of this subsection, the district court, with the consent of all the parties to the proceeding, may refer a proceeding related to a case under title 11 to a" } ]

[ { "docid": "22207284", "title": "", "text": "Mr. Justice McReynolds delivered the opinion of the court. An Act of the Legislature of Idaho, approved February 18, 1915, “defining prohibition districts and regulating and prohibiting the manufacture, sale . . . transportation for sale or gift, and traffic in intoxicating liquors &c” (Session Laws of Idaho, 1915, c. 11), provides: “Sec. 2. It shall be unlawful for any person, firm, company or corporation, its officers or agents, to sell, manufacture or dispose of any intoxicating liquor or alcohol of any kind within a prohibition district or have in his or its' possession or to transport any intoxicating liquor or alcohol within a prohibition district unless the same was procured and is so possessed and transported under a permit as hereinafter provided: Provided, That so long as the manufacture of intoxicating liquors for beverage purposes shall not be prohibited within the State by the Constitution or by general law applicable by its terms to the State as a whole, it .shall not be unlawful for any person, company or corporation to manufacture intoxicating liquors for beverage purposes in a prohibition district for transportation to and sale outside of the prohibition district: Provided, That nothing in this Act shall be construed to apply to the' manufacture, transportation or sale of wood or denatured alcohol.” “Sec. 15. It shall be unlawful for any person to import, ship, sell, transport, deliver, receive or have in his possession any intoxicating liquors except as in this Act provided.” “Sec. 22. It shall be unlawful for any person, firm, company, corporation or agent to have in his or its possession any intoxicating liquors of any kind for any use or purpose except the same shall have been obtained and is so possessed under a permit authorized by this Act.” Plaintiff in error was arrested and held in custody by the sheriff, in default of bail, solely because charged with having “in his possession a bottle of whiskey for his own use and benefit and not for the purpose of giving away or selling the same to any person” within Latah County, Idaho — a prohibition" } ]

[ { "docid": "22065683", "title": "", "text": "one per cent, of alcohol; in one State, the presence of the “alcoholic principle;” and in one State, two per cent, of alcohol. Thus in forty-two of the forty-eight States — Maryland appears in two classes above — a malt liquor containing over two per cent, of alcohol by weight or volume is deemed, for the purpose of regulation or prohibition, intoxicating as a matter of law. Only one State has adopted a test as high as 2.75 per cen^. by weight or 3.4 per cent, by volume. Only two States permit the question of the intoxicating character of an enumerated liquor to be put in issue. In three other States the matter has not been made clear either by decision or legislation. The decisions of the courts as well as the action of the legislatures make it clear — or, at least, furnish ground upon which Congress reasonably might conclude — that a rigid classification oi beverages is an essential of either effective regulation or effective prohibition of intoxicating liquors. Purity Extract Co. v. Lynch, 226 U. S. 192, determíneü that state legislation of this character is valid and set forth with clearness the constitutional ground upon which it rests: “When a State exerting its recognized authority undertakes to express what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective. It does not . follow that because a transaction separately considered is innocuous it may not be included in a prohibition the scope of which is regarded • as essential in the legislative judgment to accomplish a purpose within the admitted power of the Government.” (P. 201.) “It was competent for the legislature of Mississippi to recognize the difficulties besetting the administration of laws aimed at the prevention of traffic in intox icants. It prohibited, among other things, the sale of! ‘malt liquors.’ In thus dealing with a class of beverages which in general are regarded as\" intoxicating, it was not bound to resort to a" }, { "docid": "14745184", "title": "", "text": "53 Fed. 422; State v. Stanley, 84 Me. 555, 24 Atl. 083. This requirement has not been met by the plaintiff in its bill of complaint. 3. The defendant Brewing Company contends that the failure of the bill to allege that the company has knowledge or reason to believe that the premises aré occupied or used for any purpose contrary to the provisions of the National Piohibiliou Act and suffers such use is a fatal defect so- far as this action is concerned. It is provided by section 21, title 2, of the National Prohibition Act, that: “Any room, house, building, boat, vehicle, structure, or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this title, and all intoxicating liquor and property kept and used in maintaining- tbe same, is hereby declared to be a common nuisance, and any person who maintains such a common nuisance shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than §1,000 or be imprisoned for not more than one year, or both. If a person has knowledge or reason to believe that his room, house, bjiilding, boat, vehicle, structure, or place is occupied or used for the manufacture or sale of liquor contrary to the provision of this title and suffers the same to be so occupied or used, such room, house, building, boat, vehicle, structure, or place shall be subject to a lien for and may be s. Id to pay all fines and costs assessed against the person guilty of such nuisance for such violation, and any such lien may be enforced by action in any court having jurisdiction.” From this it is apparent that mere occupancy, without knowledge or reason to believe that the premises are being used in violation of law on the part of the owner, is insufficient. 4. The bill of complaint alleges: “The intoxicating liquor manufactured, sold, kept, or bartered upon the said premises of the said defendant is sold and kept for sale for beverage purposes.” This was obviously for the purpose of pleading the facts" }, { "docid": "14745185", "title": "", "text": "year, or both. If a person has knowledge or reason to believe that his room, house, bjiilding, boat, vehicle, structure, or place is occupied or used for the manufacture or sale of liquor contrary to the provision of this title and suffers the same to be so occupied or used, such room, house, building, boat, vehicle, structure, or place shall be subject to a lien for and may be s. Id to pay all fines and costs assessed against the person guilty of such nuisance for such violation, and any such lien may be enforced by action in any court having jurisdiction.” From this it is apparent that mere occupancy, without knowledge or reason to believe that the premises are being used in violation of law on the part of the owner, is insufficient. 4. The bill of complaint alleges: “The intoxicating liquor manufactured, sold, kept, or bartered upon the said premises of the said defendant is sold and kept for sale for beverage purposes.” This was obviously for the purpose of pleading the facts constituting the nuisance in question, for section 21, supra, defines a common nuisance under the act as: “Any room, house, building, boat, vehicle, structure, or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this title,” etc. Consequently it is apparent that a nuisance may result either from manufacturing, selling, possessing, or trading in intoxicating liquor, except as permitted by the act, and that the bill of complaint must allege at least one of these as a'fact. The defendants insist that the allegation may not be in the disjunctive, citing Crain v. United States, 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097; Simpson v. United States, 229 Fed. 940, 144 C. C. A. 222, and People ex rel. Schuler v. Schatz, 50 App. Div. 544, 64 N. Y. Supp. 127. These cases (and certainly the last named) are authorities for a general prohibition against setting forth several acts disjunctively in an indictment, but no reason is suggested why they should not apply to a bill in equity." }, { "docid": "22702883", "title": "", "text": "morals and the public safety may be endangered by the general use of intoxicating drinks; nor the fact, established by statistics accessible to every one, that the idleness, disorder, pauperism and crime existing in the .country are, in s< me degree at least, traceable to this evil.” And that “ if in the judgment of the legislature [of a State] the manufacture of intoxicating liquors for the maker’s own use, as a beverage., would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of-that question. . . . Nor can it be said that government interferes with or impairs any one’s constitutional rights of liberty or of property, when it determines that the manufacture and sale of intoxicating drinks, for general-or individual use, as a beverage, are, or may become, hurtful to society, and constitute^ therefore, a business in which no one may. lawfully engage.” Undoubtedly, it is for the legislative branch of the state governments to determine whether the manufacture of particular articles of traffic, or the sale of such articles, will injuriously affect the public, and it is not for Congress to determine what measures a State may properly adopt as appropriate or needful for the protection of the public morals, the public health or the public safety ; but notwithstanding it is not vested with supervisory power over matters of local administration. †-he responsibility is upon Congress, so far as the regulation of interstate commerce is concerned, to remove the restriction upon the State in dealing with imported articles of trade within its limits, which have not been mingled with the common mass of property therein, if in its judgment the end to be secured justifies and requires such action. . Prior to 1888 the statutes of Iowa permitted the sale of foreign liquors imported under the laws of the United States, provided the' sale was by the" }, { "docid": "23548486", "title": "", "text": "against whoever maintains such nuisance to abate and enjoin the same. If judgment be in favor of the State, then judgment shall be rendered abating said nuisance and enjoining the defendants from maintaining the same, and ordering that said house be closed for one year from the date of said judgment, unless the defendants in said suit, or the owner, tenant or lessee of said property make bond payable to the State at the county seat of the county where such nuisance is alleged to exist, in the penal sum- of not less than one thousand nor more than five thousand dollars, with sufficient sureties to be approved by the judge trying the case, conditioned that the acts prohibited in this law shall not be done or permitted to be done in said house. On violation of any condition of such bond, the whole sum may be recovered as a penalty in the name and for the State in the county where such conditions are violated, all such suits to be brought by the district or county attorney of such county. . Tex.Rev.Civ.Stat.Ann. art. 4664 provides: Any hotel, rooming house or boarding house, country club, garage, rent car stand or other place to which the public commonly resort for board or lodging or commonly con gregate for business or pleasure, where intoxicating liquors are kept, possessed, sold, manufactured, bartered or given away, or where intoxicating liquors are furnished to minors or to students of any educational institution, or where persons habitually resort for the purpose of prostitution or to gamble as prohibited by the Penal Code, is hereby declared to be a common nuisance. Any person who knowingly maintains such a place is guilty of maintaining a nuisance. . The liquor provision has been construed as referring to places where liquor law violations occur. See State v. Parker, 147 Tex. 57, 212 S.W.2d 132 (1948). . Tex.Rev.Stat.Ann. art. 4667 provides: (a) The habitual use, actual, threatened or contemplated, of any premises, place or building or part thereof, for any of the following uses shall constitute a public nuisance and shall" }, { "docid": "6893290", "title": "", "text": "GRUBB, District Judge. This action is before the court on defendants’ motion to dismiss the complaint on the ground that the complaint fails to state a claim upon which relief can be granted. Count I of the complaint is brought under the provisions of Chapter 43, § 135, of the Illinois Revised Statutes, commonly referred to as the Illinois Dram Shop Act. That statute provides: “Every husband, wife, child, parent, guardian, employer or other person, who shall be injured, in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; and any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving liquors aforesaid, as hereinafter provided; -» * * >> Count II of the complaint is brought under another statute, Chapter 43, § 131, of the Illinois Revised Statutes. That statute provides: “No licensee * * * shall sell, give or deliver alcoholic liquor to any minor, or to any intoxicated person or to any person known by him to be an habitual drunkard, spendthrift, insane, mentally ill, mentally deficient or in need of mental treatment.” Plaintiffs allege that defendants owned, rented or leased a certain building in Chicago, Illinois, with knowledge that alcoholic liquors were to be sold therein; that said defendants sold or gave one Joseph Rogers, the husband of Laverne Rogers and father of Donald and Allen Rogers, alcoholic liquor which, in whole or in part, caused him to be intoxicated, habitually and" }, { "docid": "22295595", "title": "", "text": "package. The proposition relied upon, therefore, when considered in the light of the Wilson act, reduces itself to this: Albeit the State of South Dakota had power within its territory to prevent the sale of intoxicating liquors, even when shipped into that State from other States, yet South Dakota was wanting in authority to prevent, or regulate the carrying on within its borders of the business of soliciting proposals for the purchase of liquors, because the proposals were to be consummated outside of the State, and the liquors to which they related were also outside the State. This, however, but corned to this, that the power existed to prevent sales of liquor, even when brought in from without the State, and yet there, was no authority to prevent or regulate the carrying on the accessory business of soliciting orders within the State. Aside,, however, from the anomalous situation to which the proposition thus conduces,- we think to maintain it would be repugnant to the plain spirit of the Wilson act. That act, as we have seen, manifested the conviction of Congress that control by the States over the traffic of déaling in liquor within their borders was of such importance that it was wise to adopt a special regulation of interstate commerce on the subject. When, then, for the carrying out of this purpose the regulation expressly provided that intoxicating ■liquors coming into a State should be as completely under the control of a State as if the liquor had been manufactured therein, it would ..be, we think, a disregard of the purposes of Congress to hold that the owner of intoxicating liquors in one State can, by virtue of the commerce clause, go himself or send his agent into such other State, there in defiance of the law of the State, to carry on the business of soliciting proposals for the purchase of intoxicating liquors. Passing from these general considerations let us briefly more particularly notice some' of the arguments relied' upon. As we have stated, decisions of this court interpreting the Wilson act have held that that law" }, { "docid": "22919004", "title": "", "text": "has no substantial relation to the enforcement of the constitutional prohibition of the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation-thereof from, the United States and all territories subject to the jurisdiction thereof, for beverage purposes, a court has no power to determine the wisdom of the enactment or challenge the manner of the exercise by Congress of the authority and discretion confided to it by the second section of this- constitutional amendment. Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184. Congress in the exercise of its power 'has determined that it is essential and appropriate to the enforcement of this constitutional amendment to restrict the possession of intoxicating liquors to those having permits to keep and possess the same and to private homes when intended for the sole use of the owner and his family and their bona fide guests. The possession of intoxicating liquors is the first essential to its barter and sale as a beverage. Intoxicating liquors, stored in the same building in which the owner or' occupant of the building is conducting a business with the public generally, not only furnishes op portunities for the violation of the provisions of this constitutional amendment, but would also tend to hinder, delay, and prevent the detection of unlawful traffic therein. It would therefore appear that this provision of the National Prohibition Act has a substantial relation to the enforcement of national prohibition, and that Congress has not in this respect transcended its power or abused the discretion conferred upon it by the second section of the Eighteenth Amendment. Tonic Co. v. Lynch, supra; U. S. v. Murphy (D. C.) 264 Fed. 842; National Prohibition Cases, supra. The facts in this case are wholly different from the facts in the cases of United States ex rel. Soeder v. Crossen (D. C.) 264 Fed. 459, and Street v. Lincoln Safe Deposit Co., 254 U. S. 88, 41 Sup. Ct. 31, 65 L. Ed. -, 10 A. L. R. 1548, decided by the" }, { "docid": "22155564", "title": "", "text": "of the price charged. And the necessary effect of the judgment was to deny this right, thus distinctly asserted. The decision that the sales- were consummated in Yermont, and, consequently, that the defendant violated the laws of that State in doing what he did there, by his agents, is not, in- itself, -sufficient to support the judgment, except upon the theory that he had no right, under the Constitution of the United States, to send the liquors into Yermont to be there delivered in the original packages. It seems to me entirely clear, in any view of the cáse, that the court below-necessarily determined, adversely-to the defendant, a right specially set up and claimed.by him under the Federal Constitution. In view of what I have said, it is proper to state that, in my.-, judgment, the sending by the defendant from Whitehall, New York, to Rutland County, Yermont, of intoxicating liquors, in jugs, bottles or'flasks, to be delivered only upon the payment of the .price charged for the liquors, were not, in any fair sense, transactions of interstate commerce protected' by the Constitution of the .United States against the laws of Yermont regulating the selling, giving away and furnishing of intoxicating liquors within its limits. The defendant, in effect, engaged in the business of selling, through agents, by retail, in Yermont, intoxicating liquors shipped by him, for that purpose, into that State from another State. What he did was a mere device to evade the statutes enacted by Yermont for the purpose of protecting its people against the evils confessedly resulting from the sale of intoxicating liquors. The doctrine relating to “ original packages ” of merchandise sent from one State to .another State does not embrace a business of that, character. But whether this be so or not is a question this court has jurisdiction to determine in the present case, and it is clearly the right of the. defendant to have it determined If the jugs, bottles or flasks, containing intoxicating liquors sent into Yermont from, the- defendant’s place of business, over the border, were original packages, the" }, { "docid": "15796344", "title": "", "text": "The Supreme Court of the State of Ohio, in construing the statute in question, has clearly pointed out the reasons that actuated the legislature in distinguishing between places where the liquors are manufactured and those where liquors are sold to be drunk on the premises. Thus in the case of Adler v. Whitbech, 44 Ohio St. 539, 574, that court said“ It was for the legislature to determine the forms of the traffic that required to be regulated as a source of evil. It has in a measure drawn a line between a distillery and a brewery on the one hand and a saloon on the other. There is nothing unreal in the distinction. It is known by all men, and in one respect probably too well by many men. And unless absolute prohibition is resorted to no more practical distinction could be made.” It remains to consider whether the court below erred in finding, under the facts agreed upon, that the Reymann Brewing Company has established a place in the city of Steubenville, in the State of Ohio, where its beer was sold and delivered, and thus has become liable to the tax prescribed by the law. It is sufficient to say that it is distinctly admitted that the brewing company not only ships its beer in barrels and cases, in filling orders received, and delivers it directly to the purchasers, (which sales and deliveries are not by the statute subjected to any tax,) but also maintains a storehouse in Steuben-ville, where it sells and delivers beer and collects payment. Such transactions constitute the brewing company a trafficker in intoxicating liquor having a place, other than the place of manufacture, where the traffic is carried on within the meaning of the law. And, of course, it is obvious that such liquors, sold and delivered within the State of Ohio, are within the provisions of the statute of the United States, known as the Wilson law, (Act of August 8, 1890, c. 728,) which provides that intoxicating liquors transported into any State for sale or storage therein shall be subject" }, { "docid": "22120646", "title": "", "text": "health and safety of its inhabitants, it may legislate, on that assumption, with equal effect us to such liquor whether imported or of domestic manufacture. Such legislation may take the form of total prohibition, and be valid, as we held in In re Rahrer, 140 U. S. 545, under a statute of the State of Kansas. The articles prohibited Ivere thus taken out of the sphere of commerce, whether interstate or domestic, and no discriminations were thereby made or attempted adversely to the persons or property of other States. Or the legislation may seek to regulate the sale of intoxicating liquors, and if the regulations are reasonable, in the fair exercise of the police power, applicable alike to articles imported and to those' made in the State, their • validity may well be sustained, without infringing upon the Federal control of Interstate Commerce.- Thus if the State of South Carolina, instead of prohibiting the sale of imported liquors in imported packages altogether and confiscating them to her own use, had seen fit to prescribe reasonable regulations of the sale ■ — • such, for instance, as forbade its taking place on Sunday, or in the night time, or to be drunk on the premises, or to be made'to minors, and if such regulations likewise applied to the sale of domestic liquors — then the case might be deemed to fall within the proper exercise of the police power. Far different is the nature of the provisions of these acts of South Carolina. They do not pretend to forbid either the use, manufacture or sale of intoxicating liquors. They do not provide a reasonable system of inspection, calculated to protect the public from imposition. They do not seek to subject the. sale to reasonable regulations, but do contain provisions which, if carried into effect, would wholly prevent the makers and owners of wines and liquors made in. foreign countries or in the other States from exercising the right of free commerce under the-Constitution. ’At the most, it can only be said that such persons can be permitted to send their property" }, { "docid": "14745181", "title": "", "text": "thereafter; but the court may, in its discretion, permit it to be occupied or used if the owner, lessee, tenant, or occupant thereof shall give bond with sufficient surety, to be approved by the court making the order, in the penal and liquidated sum of not less than $500 nor more than $1,000, payable to the United States, and conditioned that intoxicating liquor will not thereafter be manufactured, sold, bartered, kept, or otherwise disposed of therein or thereon, and that he will pay all fines, costs, and damages that may be assessed for any violation of this title upon said property.” Tbe plaintiff prays that the court abate the public and common nuisance on the premises referred to in the bill of complaint, close same, take possession of all liquor, fixtures, and other property now used on said premises in connection with the violation of law constituting said nuisance, direct the destruction of all intoxicating liquor on the premises, or its delivery to a department or agency of the United States government, direct that the premises shall not be occupied or used for one year after the date of the decree, or, if the court permits it to be used, only upon giving security that intoxicating liquor shall not thereafter be manufactured sold, bartered, kept, or otherwise disposed of therein or thereon, and that the- defendants pay all costs, fines, and damages that may be assessed for any violation of title 2 of the National Prohibition Act upon said property. Plaintiff also asks for a temporary injunction, pending final determination of the issues, restraining all persons occupying the premises from conducting or continuing a nuisance thereupon. 1. The defendants claim that tbe allegation in the bill of complaint, “that the defendants are maintaining and conducting a common nuisance on the premises, described herein, in that intoxicating liquor containing more than one-half of 1 per cent, of alcohol by volume has been and is being sold and kept for sale in the premises,” is a conclusion of law only, and is not sufficient, in the absence of any specific allegation of" }, { "docid": "14487592", "title": "", "text": "21, title 2, of the Act of Congress approved October 28, 1919, known as the National Prohibition Act (41 Stat. 314 [Comp. Stat. § 10138%jj]), for maintaining a common nuisance on the same premises; the specific charge being that defendants on said premises “did then and there at divers times theretofore knowingly, willfully and unlawfully keep, possess, furnish, barter, and sell intoxicating liquor, to wit, distilled spirits, to wit, whisky, fit for beverage purposes, in violation of the said National Prohibition Act.” Defendants were found guilty by a jury, and each was sentenced to serve one year in jail and to' pay a fine of $1,000. Both prosecutions arise out of substantially the same facts, and most of the questions raised are common to both cases. We shall therefore consider the cases in one opinion, directing attention as we proceed t© the questions not common to both sets of cases. Section 21 of the National Prohibition Act, upon which both prosecutions are based, is as follows: “Section 10138%jj.' Common Nuisance; What Are; Punishment for Maintenance; Liability of Owners of Buildings. — Any room, house, building, boat, vehicle, structure, or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this title, and all intoxicating liquor and property kept and used in maintaining the same, is hereby declared to be a common nuisance, and any person who maintains such a common nuisance shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or be imprisoned for not more than one year, or both. If a person has knowledge or reason to believe that his room, house, building, boat, vehicle, structure, or place is occupied or used for the manufacture or sale of liquor contrary to the provision of this title, and suffers the same to be so occupied or used, sueh room, house, building, boat, vehicle, structure or place shall be subject to a lien for and may be sold, to pay all fines and costs assessed against the person guilty of sueh nuisance for such violation, and any such lien" }, { "docid": "22553131", "title": "", "text": "it creates. But, as it leads to neglect of business and waste of property and general demoralization, it affects those who are in immediately connected with and dependent upon him. By the general concurrence of opinion of every civilized and Christian community, there are few sources of crime and misery to society equal to the dram shop, where intoxicating liquors, in small quantities, to be drunk at the time, are sold indiscriminately to all parties applying. The statistics of every State show a greater amount of crime and misery attributable to the use of ardent spirits obtained at these retail liquor saloons than to any other source. The sale of such liquors in this way has therefore been, at all times, by the courts of every State, considered as the proper subject of legislative regulation.. Not only may a license be exacted from the keeper of the saloon before a glass of his liquors can be thus disposed of, but restrictions may be imposed as to the class of persons to whom they may be sold, and the hours of the day and the days of the week on which the saloons may be opened. Their sale in-that form may be absolutely prohibited. It is a question of public expediency and public morality, and not of federal law. The police power of. the State is fully competent to regulate the business —to mitigate its evils or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the community it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority. That authority may vest in such officers as it may deem proper the power of passing upon applications for permission to carry it on, and to issue licenses for" }, { "docid": "22412863", "title": "", "text": "March 19, 1888, involved the validity of a provision of those statutes, (substantially similar to the provision now before us, as construed by the highest court of the State,) imposing a-penalty upon any railroad company or other common carrier, or any agent of either, or any other person, that should knowingly bring within the State, or knowingly trans-. port or convey between points or from one place to another within the State, for any other person or corporation, any intoxicating liquors, without first : having obtained a certificate, from the auditor of the county to which it was consigned, or within which it was to be conveyed from place to place; certifying that the consignee was authorized by the laws of Iowa to sell such liquors. The majority of this court, upon a consideration of the whole statute, frankly recognized that “ the provision in question has been adopted by the State of Iowa, not expressly for the purpose of regulating commerce between its citizens and those of other States, but as subservient to the general design of protecting the health and morals of its people and the peace' and good order of the State, against the physical and moral evils resulting from the unrestricted manufacture and sale within the State of intoxicating liquors.” 125 U. S. 475, 476. Nevertheless, the provision was held to be unconstitutional and void, as applied to a railroad company transporting intoxicating liquors into the State from another State, upon the ground that the State “ cannot, without the consent of Congress, express or implied, regulate commerce between its people and those of the other States of the Union in order to effect its end, however desirable such a regulation might be.” 125 U. S. 493. The court took pains to distinguish the case from Peirce v. New Hampshire, above cited, and distinctly reserved the expression of any opinion upon the question whether the State had the right to regulate or prohibit the sale of the liquor by the importer in unbroken packages after it had been brought within the State. 125 U. S. 479," }, { "docid": "22658867", "title": "", "text": "of protecting the community against the evils which confessedly result from the excessive use of ardent spirits. There is no justification for holding that the State, under the guise merely of police regulations, is here aiming, to deprive the citizen of his constitutional rights; for we cannot shut out of view the fact, within the knowledge of all, that the public health, the public moráis, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact, established by statistics accessible to every one, that the idleness, disorder, pauperism, and crime existing in the country are, in some degree at least, traceable to this evil. If, therefore, a state deems the absolute prohibition of the manufacture and sale, within, her limits, of intoxicating liquors for other than. medical, scientific, and manufacturing purposes, to be necessary to the peace and security of ^society, the courts cannot, without usurping legislative functions, override the will of the people as thus expressed by their chosen representatives. They have nothing to do with the mere policy of legislation. Indeed, it is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the Constitution to another department. And so, if, in the judgment of the legislature, the manufacture of intoxicating liquors for the maker’s own uáe, as a beverage, would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question. So far from such a regulation having no relation to the general end sought to be accomplished, the entire scheme of prohibition, as embodied in the constitution and laws of Kansas, might fail, if the right of each citizen to manufacture intoxicating liquors for his own use as a beverage were recognized. Such a right .does not inhere in citizenship. Nor^ can it" }, { "docid": "22295593", "title": "", "text": "borders for the purchase of intoxicating liquors is beyond question. With the existence of this general power we are not, therefore; concerned. We are hence called upon only to consider whether the general power of the State to control and regulate the liquor traffic and the business of dealing or soliciting proposals for the dealing in the same within the State was inoperative as to the particular dealings here in question, because they were interstate commerce, and therefore could not be .subjected to the sway of the state statute without causing that statute to-be repugnant to the com-'merce clause of the Constitution of-the United States. It is well at once to give the text of the .Wilson act-, which is as follows (26 Stat. 713, c. 728): “That all fermented, distilled, or other intoxicating liquors or liquids transported into any State or Territory or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the saíne manner as though such liquids or liquors had been producéd in such State or Territory, and shall not be exempt therefrom' by reason of being introduced therein in original packages or otherwise.” It is settled by a line of decisions of this court, noted in the margin, that the purpose of the Wilson act, as a regulation by Congress of interstate commerce, was to allow the States, as to intoxicating liquors, when the subject of such commerce,, to exert ampler power than could have been-exercised béfore the enactment of the statute. In other words, that Congress, sedulous to prevent its exclusive right to regulate commerce from interfering with the power of the States over intoxicating liquor,', by the Wilson act adopted a special rule enabling the States to extend their authority as to such liquor shipped from other States before it became commingled with the mass of other property in the State by a sale in the original" }, { "docid": "22121469", "title": "", "text": "fails. But the most liberal advocate of the rights conferred by that amendment have contended for nothing more than that the rights of the citizen previously existing, and dependent wholly on State laws for their recognition, are now placed under the protection of the Federal government, and are secured by the Federal Constitution. The v eight of authority is overwhelming that no such immunity has heretofore existed as would prevent State legislatures from regulating and even prohibiting the traffic in intoxicating drinks, with a solitary exception. That exception is the case of a law operating so rigidly on property in existence at the time of its passage, absolutely prohibiting its sale, as to amount to depriving the owner of his property. A single case, that of Wynehamer v. The People, has held that as to such property the statute would be void for that reason. But no case has held that such a law was void as violating the privileges or immunities of citizens of a State or of the United States. If, however, such a proposition is seriously urged, we think that the right to sell intoxicating liquors, so far as such a right exists, is not one of the rights growing out of citizenship of the United States, and in this regard the case falls within the principles laid down by this court in the Slaughter-House Cases. But if it were true, and it was fairly presented to us, that the defendant was the owner of the glass of intoxicating liquor which he sold to' Hickey, at the time that the State of Iowa first imposed an absolute prohibition on the sale of such liquors, then we concede that two very grave questions'would arise, namely : 1. Whether this -would be a statute depriving him of his property without due process of law; and secondly, whether if it were so, it would be so far a violation of the fourteenth amendment in that regard as would call for judicial action by this court? Both of these questions, whenever they may be presented to us, are of an importance" }, { "docid": "22325284", "title": "", "text": "the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” 123 U. S. 661. In view of these principles, the court said it was difficult, to perceive any ground for the judiciary to declare that the prohibition by a State of the manufacture or sale, within her limits; of intoxicating liquors for general use there as a beverage, is not fairly adapted to the end of protecting 'the community against the evils which confessedly result from the excessive use of ardent spirits. ' Id. 662. In the same case the court sustained, without .qualification, the authority of Kansas to declare, not only that places where such.liquors were manufactured, sold, bartered, or given away, or were kept for sale, barter, or delivery, in violation of her statutes, should be deemed common nuisances, but to provide for. the forfeiture, without compensation, of the intoxicating liquors found in such places and the property used in maintaining said nuisances.- ■ Now, can it .be possible that the framers of the Constitution intended — whether Congress chose or not to act upon the subject — to withhold from a State authority to prevent the introduction into her midst of articles or commodities, the manufacture of which, within' her limits, she could prohibit, Without impairing the constitutional rights of her own people ? If a State may declare a place where intoxicating liquors are sold for use as a beverage to be a common nuisance,-subjecting the person' maintaining the same to fine and imprisonment, can her people be compelled to submit to the sale of such liquors, when brought there from another State for that purpose ? This court has often declared that the most important function of government was -to preserve the public health,' morals, and safety; that it could not divest itself of that power, nor, by contract, limit its exercise; and that even the constitutional prohibition upon laws impairing the obligation of contracts does not restrict the power of the State to protect the health, the morals, or the safety of the community," }, { "docid": "14507276", "title": "", "text": "598].” Now, as before stated, it may be conceded that no. intoxicating liquors were manufactured, sold, or bartered on the premises in question. To narrow the discussion, it may be further conceded that no intoxicating liquors were kept for sale or barter on the premises. The question then remains: Were intoxicating liquors kept on the premises for other commercial purposes? It will be observed that section 21, above quoted, was not intended-,' standing alone, to be self-sufficient. The language is not “manufactured, sold, kept or, bartered in violation of this” section, but in violation of, this title. One is therefore,, permitted to .examine the entire title for prohibitions in connection, with this language.- Turning then to section 3 (Comp. St. § 10138%aa), we find that “no person shall on or after the date when the eighteenth amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of -intoxicating liquor as a beverage may be prevented.” The acts here prohibited are penalized in various subsequent sections of the act. It is therefore an offense against the laws of the United States to possess intoxicating liquor, except as authorized in the act. Now, it will be further noticed that the prohibition of section 21 is specifically directed against the maintaining of the room, house, building, boat, vehicle, structure or place, but its effect is not limited to cases where the one maintaining the place personally does the manufacturing, selling, keeping or bartering. The question then arises, If one maintains a building or place where intoxicating liquor is habitually brought by others to be there possessed and consumed for beverage purposes, and maintains such place and there permits such possession of intoxicating liquor for profit, does he thereby constitute his place a nuisance under the provisions of section 21? We have no hesitation in answering this question in the affirmative. We think that, where one maintains" } ]

[ { "docid": "22734912", "title": "", "text": "to discriminate against one class or group. But we need not determine all the limitations that are placed on this power of a State to determine the qualifications of voters, for appellee is a qualified voter. The Fifteenth Amendment prohibits a State from denying or abridging a Negro’s right to vote. The Nineteenth Amendment does the same for women. If a State in a statewide election weighted the male vote more héavily than the female vote or the white vote more heavily than the Negro vote; none could successfully contend that that discrimination was allowable. See Terry v. Adams, 345 U. S. 461. How then can one person be given twice or ten times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of “we the people” under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions. The Court has consistently recognized that all qualified voters have a constitutionally protected right “to cast their ballots and have them counted at Congressional elections.” United States v. Classic, 313 U. S. 299, 315; see Ex parte Yarbrough, 110 U. S. 651; Wiley v. Sinkler, 179 U. S. 58; Swafford v. Templeton, 185 U. S. 487. Every voter’s vote is entitled to be counted once. It must be correctly counted and reported. As stated in United States v. Mosley, 238 U. S. 383, 386, “the right to have one’s vote counted” has" } ]

[ { "docid": "13050951", "title": "", "text": "that the ballot image summaries generated during recounts “do not permit the canvassing board to determine whether the voter made an intentional choice to undervote or that the machine failed to record the vote due to voter mistake, human error, or system error.” Plaintiffs thus argue that Florida voters are not accorded equal treatment because those residing in optical scan counties will have an opportunity to have their residual votes reviewed in a meaningful way in certain very close elections whereas those residing in touchscreen counties will not. Plaintiffs’ fundamental error is one of perspective. By adopting the perspective of the residual voter, they have avoided the question that is of constitutional dimension: Are voters in touchscreen counties less likely to east an effective vote than voters in optical scan counties? It is this question, and not the question of whether uniform procedures have been followed across a state regardless of differences in voting technology, that the Supreme Court consistently has emphasized in its voting jurisprudence. See, e.g., Bush, 531 U.S. at 104-05, 121 S.Ct. 525 (“Having once granted the right to vote on equal terms, the state may not, by later arbitrary treatment, value one person’s vote over that of another.”); Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (“[A] citizen has a constitutionally protected right to partici pate in elections on an equal basis with other citizens in the jurisdiction.”); Reynolds v. Sims, 377 U.S. 533, 563, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (“Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable.”); Wesberry v. Sanders, 376 U.S. 1, 7-8, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (“[A]s nearly as is practieable[,] one man’s vote in a congressional election is to be worth as much as another’s.”). The right to vote is fundamental, forming the bedrock of our democracy. See Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (“[Vjoting is of the most fundamental significance under our constitutional" }, { "docid": "22249337", "title": "", "text": "of improving the quality of public schools, we hold that the statute rationally relates to a legitimate governmental purpose and Plaintiffs’ equal protection arguments on these two bases must fail. 2. Extraterritoriality — One Person, One Vote In their final equal protection challenge, Plaintiffs allege that H.B< 269 “unconstitutionally compounds the voting disenfranchisement for some residents in the Cleveland Public School District living in the Village of Bratehahl, Linndale, New-burgh Heights and part of Garfield Heights, because these residents do not vote in the Cleveland mayoral elections.” According to Plaintiffs, non-Cleveland residents who reside in the same school district lose their elective opportunity to vote for the person who appoints individuals to their school board, thus depriving them of equal protection under the law. We disagree. Although the parties do not explicitly say so, they essentially dispute whether H.B. 269 violates the “one-person, one-vote” doctrine under the Equal Protection Clause. In Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), the Supreme Court held that courts could decide equal protection challenges to state congressional apportionment and paved the way for judicial review of state and municipal elections. In Wesberry v. Sanders, 376 U.S. 1, 18, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964), the Court further articulated the one-person, one-vote standard for evaluating these challenges to congressional districts and elections. Over time, the Court subjected legislation that infringed on the one-person, one-vote rule to strict scrutiny and expanded the rule to include elections of state legislators, county officials, and even trustees of a community college. See Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 1385, 12 L.Ed.2d 506 (1964) (elections of state legislators); Avery v. Midland County, Tex., 390 U.S. 474, 484-85, 88 S.Ct. 1114, 1120-21, 20 L.Ed.2d 45 (1968) (county officials); Hadley v. Junior College Dist. of Metro. Kansas City, Mo., 397 U.S. 50, 53-54, 90 S.Ct. 791, 793-94, 25 L.Ed.2d 45 (1970) (trustees of a community college district). Residency is the key element in determining whether legislation violates the one-person, one-vote doctrine. See Holt v. City of Tuscaloosa, 439 U.S." }, { "docid": "22341190", "title": "", "text": "absentee ballot statute that operated to deny otherwise eligible prisoners the right to vote, based solely on the prisoner’s county of incarceration). The reasoning of O’Brien does not apply here, however, as the Plaintiffs do not assert that they have been denied the right to vote or to have their vote counted; rather, they assert that them votes have received unequal treatment in the post-election counting process. In the one-person, one-vote cases, the Supreme Court has held that states’ weighted voting systems, which arbitrarily and systematically granted a lesser voice to some voters based on their geographic location, violated the voters’ right to equal protection. See Moore v. Ogilvie, 394 U.S. 814, 819, 89 S.Ct. 1493, 1496, 23 L.Ed.2d 1 (1969); Reynolds v. Sims, 377 U.S. 533, 563, 84 S.Ct. 1362, 1382, 12 L.Ed.2d 506 (1964); Roman v. Sincock, 377 U.S. 695, 709-10, 84 S.Ct. 1449, 1458, 12 L.Ed.2d 620 (1964); Gray v. Sanders, 372 U.S. 368, 379-80, 83 S.Ct. 801, 808, 9 L.Ed.2d 821 (1963). The facts presented by those cases are different from the facts here, however. The ballots of voters in Florida counties conducting manual recounts are not receiving greater weight than are votes elsewhere in Florida. The additional scrutiny of ballots afforded under Florida’s manual recount procedures does not weigh the value of votes; it merely verifies the count. Unlike the foregoing cases which have held that the systematic unequal weighting of votes is unconstitutional, here there is no automatic, inevitable, or systematic granting of greater weight to the choices of any voter or class of voters. This conclusion is further supported by the fact that the Constitution itself, in Article II, § 1, cl. 2, contemplates that each state will direct its own (potentially different) method of appointing Presidential electors. Within each state, federal courts have acknowledged that diverse methods of voting may be employed. See Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177, 181 (4th Cir.1983) (citing Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 777, 13 L.Ed.2d 675 (1965)). The Supreme Court has confirmed that recounts are well" }, { "docid": "19791894", "title": "", "text": "based on the redistricting plans derived from the 1900 census and the 1900 apportionment. The Supreme Court held that using the 1900 apportionment to allocate seats in the Alabama House and Senate violated the Equal Protection Clause due to the substantial population growth and population shifts that had occurred in Alabama since 1900. See id. at 568, 583-87, 84 S.Ct. 1362. For example, the Alabama Senate had 35 members, yet one Senator represented a Senate district with a population of 15,417 while another Senator represented a Senate district with a population of 634,864. See id. at 546, 84 S.Ct. 1362. The Equal Protection Clause of the Fourteenth Amendment requires that state legislative districts “be apportioned on a population basis” and demands “substantial” population equality, not perfect equality. Id. at 577, 579, 84 S.Ct. 1362. The same principles apply to districts for electing subsidiary state government entities exercising “general governmental powers over the entire geographic area served by the body,” such as an elected Board of County Commissioners or an elected School Board. See, e.g., Hadley v. Junior Coll. Dist., 397 U.S. 50, 53, 56, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970) (quotation omitted); Avery v. Midland Cty., 390 U.S. 474, 484-85, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968); Dusch, 387 U.S. at 114-15, 87 S.Ct. 1554. States must “make an honest and good faith effort to construct districts ... as nearly of equal population as is practicable,” but the Supreme Court realizes “that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.” Reynolds, 377 U.S. at 577, 84 S.Ct. 1362. The one person one vote principle applies to both congressional districts and state government districts, but the Supreme Court has adopted a much more stringent population-equality standard for congressional districts. As for congressional districts, the Supreme Court has interpreted Article I, § 2 of the Constitution to mandate that “as nearly as is practicable one [person’s] vote in a congressional election is to be worth as" }, { "docid": "19791893", "title": "", "text": "decide, and unless the state legislature’s policies and preferences violate the United States Constitution, federal courts have no authority to interfere. See, e.g., White v. Weiser, 412 U.S. 783, 794-95, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973). Until 1962, the Supreme Court largely deemed state reapportionment and redistricting issues to be nonjusticiable po litical questions. See, e.g., Colegrove v. Green, 328 U.S. 549, 552-56, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946). In 1962, however, the Supreme Court decided Baker v. Carr, 369 U.S. 186, 187-88, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and held that a federal court had jurisdiction to consider a Fourteenth Amendment Equal Protection Clause challenge to the apportionment of the Tennessee legislature and that the Equal Protection Clause includes a one person one vote principle. In 1964, in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Supreme Court expounded on the one person one vote principle and rejected the malapor-tionment of the Alabama legislature, which continued to have members of its House and Senate elected based on the redistricting plans derived from the 1900 census and the 1900 apportionment. The Supreme Court held that using the 1900 apportionment to allocate seats in the Alabama House and Senate violated the Equal Protection Clause due to the substantial population growth and population shifts that had occurred in Alabama since 1900. See id. at 568, 583-87, 84 S.Ct. 1362. For example, the Alabama Senate had 35 members, yet one Senator represented a Senate district with a population of 15,417 while another Senator represented a Senate district with a population of 634,864. See id. at 546, 84 S.Ct. 1362. The Equal Protection Clause of the Fourteenth Amendment requires that state legislative districts “be apportioned on a population basis” and demands “substantial” population equality, not perfect equality. Id. at 577, 579, 84 S.Ct. 1362. The same principles apply to districts for electing subsidiary state government entities exercising “general governmental powers over the entire geographic area served by the body,” such as an elected Board of County Commissioners or an elected School Board. See, e.g., Hadley" }, { "docid": "332263", "title": "", "text": "Court discussed statistics relating to registered voters and referred to “voters” sometimes even interchangeably with “population” as lending support to the asserted construction of “one person, one vote.” Nevertheless, a careful reading of Reynolds v. Sims, and particularly its analysis of the foundation for the “one person, one vote” concept, makes clear that the basic constitutional protection is one of equal representation by population, and not equal representation by registered voters. “One person, one vote” had its genesis in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), and Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). Specifically, Gray v. Sanders, in holding that the Georgia County Unit System applicable in statewide primary elections was unconstitutional since it resulted in a dilution of the weight of the votes of certain Georgia voters merely because of where they resided, announced “one person, one vote;” and Wesberry v. Sanders, which concerned an attack on congressional districting, examined the historical context of the constitutional requirement that members of the House of Representatives be elected “by the people.” In Wesberry it was held that “ * * * as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s,” 376 U.S. 7-8, 84 S.Ct. 530, but then pointed out that the way this objective was to be accomplished was to draw congressional districts in such a way that there shall be equal representation for equal numbers of people. In Reynolds v. Sims the Court engrafted the rule of these cases into the apportionment of a state legislative body, saying (377 U.S. 560-561, 84 S.Ct. 1381, 12 L.Ed.2d 526-527): “Gray, though not determinative here since involving the weighting of votes in statewide elections, estab lished the basic principle of equality among voters within a State, and held that voters cannot be classified, constitutionally, on the basis of where they live, at least with respect to voting in statewide elections. And our decision in Wesberry was of course grounded on that language of the Constitution which prescribes that" }, { "docid": "675420", "title": "", "text": "with the right to an undiluted vote, Reynolds v. Sims, 377 U.S. 533, 562-68, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Gray v. Sanders, 372 U.S. 368, 380, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), or with due process of law. As the Supreme Court said in Gray v. Sanders, Every voter’s vote is entitled to be counted once. It must be correctly counted and reported. As was stated in United States v. Mosley, 238 U.S. 383, 386, 35 S.Ct. 904, 905, 59 L.Ed. 1355 “the right to have one’s vote counted” has the same dignity as “the right to put a ballot in a box.” It can be protected from the diluting effect of illegal ballots. 372 U.S. at 380, 83 S.Ct. at 808. In this case, state officials have in effect presented the plaintiff class with “illegal ballots” and then have refused to count their votes. The right to vote has clearly been infringed. In this context of significant disenfranchisement of an identifiable group at the direction of state officials, the lack of evil intent on the defendants’ part is not dispositive. Toney v. White, 488 F.2d 310 (5th Cir. 1973); Coalition for Education, District One v. Board of Elections, 370 F.Supp. 42 (S.D.N.Y.1974), aff’d, 495 F.2d 1090 (2nd Cir. 1974); Ury v. Santee, 303 F.Supp. 119 (N.D.Ill.1969). There is no indication that cases explicating the constitutional protections against infringement of the right to an undiluted vote depend in the slightest measure on evil motives of state officials, or only on a finding of racial discrimination. To the contrary, the various types of vote-dilution cases have depended upon effect, not on intention. See, e. g., Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Toney v. White, 488 F.2d 310 (5th Cir. 1973) (en banc); Coalition for Education in District One, 370 F.Supp. 42 (S.D.N.Y.1974), aff’d 495 F.2d 1090 (2nd Cir. 1974); Ury v. Santee, 303 F.Supp. 119 (N.D.Ill.1969). Those who applied for absentee and shut-in ballots for the March 29 primary fit precisely the situation described by Chief Justice Warren in Reynolds" }, { "docid": "14988364", "title": "", "text": "would serve only to create a deviation fluctuation in an adjoining district. II. Conclusions of Law The Constitution of the United States requires that congressional and state legislative seats be apportioned equally, so as to ensure that the constitutionally guaranteed right of suffrage is not denied by debasement or dilution of the weight of a citizen’s vote. Reynolds v. Sims, 377 U.S. 533, 555, 568, 84 S.Ct. 1362, 1378, 1385, 12 L.Ed.2d 506 (1964); Wesberry v. Sanders, 376 U.S. 1, 7-8, 84 S.Ct. 526, 530, 11 L.Ed.2d 481 (1964). As the Supreme Court expressed more than forty years ago in a challenge to one of Georgia’s previous state legislative reapportionment schemes: Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of “we the people” under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions. Gray v. Sanders, 372 U.S. 368, 379-80, 83 S.Ct. 801, 808, 9 L.Ed.2d 821 (1963). While the Court has allowed some flexibility in state legislative reapportionment and, to a lesser extent, in congressional reapportionment, the central and invariable objective in both instances remains “equal representation for equal numbers of people.” Wesberry, 376 U.S. at 18, 84 S.Ct. at 535; see also Reynolds, 377 U.S. at 579, 84 S.Ct. at 1390. Thus, deviations from exact population equality may be allowed in some instances in order to further legitimate state interests such as making districts compact and contiguous, respecting political subdivisions, maintaining the cores of prior districts, and avoiding incumbent pairings. See Karcher v. Daggett, 462 U.S. 725, 740-41, 103 S.Ct. 2653, 2663, 77" }, { "docid": "21478672", "title": "", "text": "the county, the acts producing this result are violative of the equal protection clause of the fourteenth amendment. The prayers of plaintiffs for ultimate relief in these two cases are identical: (1) that the underlying acts of the Alabama Legislature be declared unconstitutional; (2) that it be required that the members of board and court be elected at large by the votes of all qualified electors within the county, or (3) that the elective districts by judicial fiat be reapportioned on the basis of population. In the final analysis, plaintiffs are forced to fall back upon the argument that a purely mechanical application of the “one person, one vote” apothegm of Gray v. Sanders to non-sovereign political subdivisions of a state is required by the equal protection clause of the fourteenth amendment. No opinion of the Supreme Court has suggested such a basis for judicial intervention in a state’s gébgraphical distribution of electoral strength among its political subdivisions. On the contrary, militating against such an openhanded approach is the reasoning of Mr. Chief Justice Warren in Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 1388, 12 L.Ed.2d 506 (1964): “Political subdivisions of States — . counties, cities, or whatever — never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions. As stated by the Court in Hunter v. City of Pittsburgh, 207 U.S. 161, 178, 28 S.Ct. 40, 46, 52 L.Ed. 151, these governmental units are ‘created as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them,’ and the ‘number, nature, and duration of the powers conferred upon [them] * * * and the territory over which they shall be exercised rests in the absolute discretion of the state.’ ” (Emphasis addéd.) As we read Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and its progeny, to justify judicial penetration of the “political thicket,” there must co-exist a serious wrong," }, { "docid": "8431988", "title": "", "text": "DWYER, District Judge. I. INTRODUCTION The plaintiffs, registered voters in King County, Washington, challenge the constitutionality of the method by which the governing council of the Municipality of Metropolitan Seattle (“Metro”) is selected. Metro is the entity in charge of water pollution abatement and public transportation throughout the county. The defendants are Metro and its current chairperson. Both sides have moved for summary judgment. All briefs, affidavits, and other materials filed by the parties, the amicus curiae brief of the Attorney General of the State of Washington, and the oral arguments of counsel, have been fully considered. The parties agree that no genuine issue of material fact exists and that the case may be decided on the cross-motions under Fed.R.Civ.P. 56. II. THE ONE PERSON, ONE VOTE PRINCIPLE The plaintiffs’ primary challenge to the selection of the Metro Council is brought under the one person, one vote principle of the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs, as voters living in parts of the county that are under-represented if the principle applies, have standing to sue, and a justiciable controversy is presented. See Baker v. Carr, 369 U.S. 186, 204-37, 82 S.Ct. 691, 703-721, 7 L.Ed.2d 663 (1962). The court has jurisdiction under 28 U.S.C. §§ 1331 and 1343. In a series of landmark cases the Supreme Court has held that where state or local government officials are elected, equal protection requires that the votes of citizens be of equal weight. No person’s vote may be reduced in value, compared to the votes of others, because of where he or she happens to live in the electoral district. In Reynolds v. Sims, 377 U.S. 533, 567, 84 S.Ct. 1362, 1384, 12 L.Ed.2d 506 (1964), the Court struck down Alabama’s method of selecting its state legislature, stating: To the extent that a citizen’s right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote. The complexions of societies and civilizations change, often with amazing rapidity." }, { "docid": "6806080", "title": "", "text": "deviation of 8.33% in terms of total population is de minimis as a matter of law. Plaintiffs respond that the district court was correct in using voting-age population because that figure more accurately represents actual voting strength in the districts. In addition, Plaintiffs claim on appeal that even if total population is used, they can nevertheless maintain a viable case of vote dilution under the Equal Protection Clause even when the maximum population deviation is less than 10%. II. The issues before the court present questions of law and are therefore subject to de novo review. Duvall v. Bristol-Myers-Squibb Co., 65 F.3d 392, 395 (4th Cir.1995), cert. granted, — U.S.-, 116 S.Ct. 2575, 135 L.Ed.2d 1090 (1996). We address these issues below after a brief overview of the Supreme Court’s one person, one vote eases. A. The equal protection guarantee of “one person, one vote” requires that representatives to an elected body are elected from voting districts of substantially equal population. Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1389-90, 12 L.Ed.2d 506 (1964). This principle ensures that every voter, no matter what district he or she lives in, will have an equal say in electing a representative. It also ensures that every person receives equal representation by his or her elected officials. The United States Supreme Court has applied the one person, one vote principle to elections for congressional representatives, Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); state legislative representatives, Reynolds v. Sims, supra; and local governmental representatives, Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). In the landmark apportionment case of Reynolds v. Sims, the Supreme Court established that the one person, one vote principle is inherent in the Equal Protection Clause of the Fourteenth Amendment. The Reynolds Court recognized that “the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State.” 877 U.S. at 560-61, 84 S.Ct. at 1381. Accordingly, the" }, { "docid": "22341240", "title": "", "text": "by a refusal to count votes from arbitrarily selected precincts, or by a stuffing of the ballot box.” Baker v. Carr, 369 U.S. 186, 208, 82 S.Ct. 691, 705, 7 L.Ed.2d 663 (1962) (internal citations omitted); accord Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964) (“And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.”) (footnote omitted). For at least a quarter of a century, it has been established that “[diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race, or economic status.” Reynolds, 377 U.S. at 566, 84 S.Ct. at 1384 (internal citations omitted). As the Supreme Court explained in Reynolds, “Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there.” Id. at 563, 84 S.Ct. at 1382. The Constitution prohibits states from weighting votes differently based on the voters’ place of residence. The Supreme Court enforced this prohibition in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), when it struck down the county unit system the Georgia Democratic Party used in its primary elections. Under that complicated system every citizen got one vote, but in the final analysis some votes mattered more than others — they counted more— and the difference was based upon the counties in which the voter lived. Id. at 370-72, 83 S.Ct. at 803-04. The Court held that the Constitution prohibits such selectivity. Id. at 380-82, 83 S.Ct. at 808-09. Another variation on selective weighting of franchise by county of residence was presented to the Court in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). That case involved an Illinois law that required a candidate seeking a place on the statewide ballot to present a nominating petition containing the" }, { "docid": "22953798", "title": "", "text": "State. While such unqualified power is undoubtedly particularly perilous to plaintiffs independent parties which are principally oriented to the myriad problems faced by the urban population of the State, it is the right of all qualified voters to equality in the exercise of their political rights which invalidates this statute. Further, such a distributive requirement cannot be justified by arguing that the S.W.P. has attained a place on the general election ballot in the past. For as the Court noted in Gray v. Sanders, 372 U.S. 368, 379, 83 S.Ct. 801, 808, 9 L.Ed.2d 821 (1963): “If a State in a state wide election weighted the male vote more heavily than the female vote or the white vote more heavily than the Negro vote, none could successfully contend that that discrimination was allowable. How then can one person be given twice or ten times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment.” (Citation omitted.) The fact that this unconstitutional burden has been hurdled before, and not, it should be noted, without considerable drain on the limited resources available to new parties, cannot negate the fact that by overweighting and overvaluing the votes of those living in less populated counties the votes of the majority of the electorate have been diluted and under valued. Reynolds v. Sims, supra, 377 U.S. at 563, 84 S.Ct. 1362. The Illinois statute in Moore required that the necessary 25,000 signatures include at least 200 from each of 50 of that State’s 102 counties, while Section 158 of the Election Law requires 12,-000 voters of whom 50 shall reside in each county of the State. Whatever differences may be" }, { "docid": "12519430", "title": "", "text": "People” (cl. 1). The Fifth Amendment, too, might be thought, by analogy to the decisions invalidating the malapportionment of state legislatures under the equal protection clause, to require the federal government to apportion congressional seats among the states in accordance with an accurate estimate of the number of people in each state. Gray v. Sanders, 372 U.S. 368, 379, 83 S.Ct. 801, 808, 9 L.Ed.2d 821 (1963); Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1389, 12 L.Ed.2d 506 (1964). For those cases do not place on plaintiffs any burden of proving that a malapportionment represents a deliberate effort to dilute some group’s voting power. It is enough that the state’s electoral districts are malapportioned. We assume that those cases survive the later ones, such as Washington v. Davis, supra, that require proof of intentional discrimination. The purpose of that requirement is to prevent the concept of equal protection from being used to invalidate governmental policies that just happen to bear more heavily against a vulnerable group, whereas the reapportionment cases vindicate a right that the Supreme Court has found to be implicit in the Constitution to an apportionment mechanism that will, so far as possible, give each person’s vote the same weight in an election. A state’s failure to create the required mechanism is an intentional denial of the right to an equally weighted vote. And while the poor are not a protected class in the sense that the Fourteenth Amendment entitles them to complain about policies that fail to alleviate their plight, government cannot use wealth to discourage voting, as through a poll tax or property qualifications. Harper v. Virginia Board of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169 (1966); Cipriano v. Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969) (per curiam). By doing so it does not discriminate necessarily but it does place a burden on a right — the right to vote, and derivatively the right to an equal vote— that the Supreme Court has found in various provisions of the Constitution. The plaintiffs’ main argument," }, { "docid": "20166640", "title": "", "text": "(emphasis added). Subject to certain important limitations discussed below, Hunter remains good law. See, e.g., Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 47, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994) (citing Hunter and affirming that “ultimate control of every state-created entity resides with the State ... [and political subdivisions exist solely at the whim and behest of their State” (internal quotation marks omitted)). Since Hunter, however, the Supreme Court has placed two key limitations on the expansive articulation of state power over political subdivisions. First, neither states nor their political subdivisions may draw boundaries that discriminate on an invidious basis, such as race or sex. See, e.g., Gomillion v. Lightfoot, 364 U.S. 339, 341, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) (rejecting an Alabama boundary statute that removed “all save four or five of [a city’s] 400” black voters). Second, equal protection prohibits states from restricting or diluting votes in violation of the “one person, one vote” principle announced in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and extended to local governments in Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). In a series of cases following Reynolds and Avery, the Court addressed and reconciled the competing demands of local control of political subdivisions on the one hand, and voter equality on the other. But the core holding of Hunter has retained its vitality. As long as the state treats voters within the same electoral district or governmental unit equally, the right to vote is not compromised. In addition, the state has the right to draw different boundaries for voting purposes — and we generally defer to these delineations— as long as the separate units further reasonable government objectives. Several conclusions flow from these cases. When a state law discriminates among eligible voters within the same elec toral district, strict scrutiny review applies, and compelling government interests must justify restrictions of the franchise. For example, strict scrutiny is appropriate where states differentiate among voters in a particular district on the basis of personal characteristics such as" }, { "docid": "6299128", "title": "", "text": "deviations could not be sanctioned where, though small, they “were not the result of a good-faith effort to achieve population equality,” id. at 727, 103 S.Ct. at 2656. In sum, the Supreme Court has long held that the right to vote is too important to be deprived of judicial protection; that that right is impaired not only by total disenfranchisement but also by dilution, because the Constitution calls for one person’s vote to be worth as much as another’s as nearly as is practicable; that dilution may result from creating voting districts of different sizes or from “a false tally”; and that, in apportioning legislative seats through districting, a state must make a good-faith effort to achieve the goal of “one-person, one-vote.” The root of the guarantee of “one-person, one-vote” is the Constitution’s guarantee to all persons of the equal protection of the law. See, e.g., New York City Board of Estimate v. Morris, 489 U.S. 688, 699, 109 S.Ct. 1433, 1441, 103 L.Ed.2d 717 (1989) (“Reynolds v. Sims line of cases” reflects an “equal protection approach”); id. at 692, 109 S.Ct. at 1437-38 (“equal protection guarantee of ‘one-person, one-vote’ ”); Hadley v. Junior College District, 397 U.S. 50, 56, 90 S.Ct. 791, 795, 25 L.Ed.2d 45 (1970) (“as a general rule, whenever a state or local government decides to select persons by popular election to per form governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionately equal numbers of officials”); Baker v. Carr, 369 U.S. at 209-10, 82 S.Ct. at 706. The equal protection requirement appears explicitly in the Fourteenth Amendment, which applies to the states, and is a component of the Due Process Clause of the Fifth Amendment, which applies to the federal government. See, e.g., United States Department of Agriculture v. Moreno, 413" }, { "docid": "18019007", "title": "", "text": "general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election . . . .” Id. at 56, 90 S.Ct. at 795. Examining these teachings we note that the cases involve general government elections. Such elections are seen as directly relating to the Constitution: “statutes distributing the franchise constitute the foundation of our representative society.” Kramer, supra, 395 U.S. at 626, 89 S.Ct. at 1889. “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 553 at 555, [84 S.Ct. 1362, 1378, 12 L.Ed.2d 506] (1964) (footnote omitted). “Like Skinner v. Oklahoma, . such a case ‘touches a sensitive and important area of human rights,’ and ‘involves one of the basic civil rights of man,’ . . . Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise [one’s vote] in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. Almost a century ago, in Yick Wo v. Hopkins, 118 U.S. 356, [6 S.Ct. 1064, 30 L.Ed. 220], the Court referred to ‘the political franchise of voting’ as ‘a fundamental political right, because preservative of all rights.’ 118 U.S., at 370, [6 S.Ct. 1064].” Id., 377 U.S. at 561-62, 84 S.Ct. at 1381. But we refuse to accept the formulation of the student appellants that the right to vote for a university trustee is equivalent to a right to vote in a participatory democracy. We will" }, { "docid": "5495802", "title": "", "text": "the end of the term of incumbent officials. La. R.S. 33:1411 (Supp.1968). II. The Supreme Court entered the “political thicket” of legislative apportionment in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), by holding justiciable a challenge to the constitutional validity of an apportionment scheme under the fourteenth amendment’s equal protection guarantee. In Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Court held unconstitutional the election of representatives to a state legislature from districts substantially unequal in population because this process dilutes the vote of members of more populous districts and thus denies them equal protection. Thereafter, the Court applied the one person, one vote precept to reapportionment of the voting constituencies in units of local government. Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971); Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970); Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). We have applied the principle to local government units, such as school boards, Panior v. Iberville Parish School Board, 498 F.2d 1232 (5th Cir. 1974); counties, Kirksey v. Board of Supervisors of Hinds County, 554 F.2d 139 (5th Cir.) (en banc), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977); and other parochial bodies, Dundee v. Orleans Parish Board of Supervisors of Elections, 434 F.2d 135 (5th Cir. 1970), vacated and remanded on other grounds, 403 U.S. 915, 91 S.Ct. 2231, 29 L.Ed.2d 692 (1971). The one person, one vote principle commands that constituencies include approximately equal numbers of voters, so that the weight of individual votes in larger districts will not be substantially diluted and individuals in those districts will not be deprived of fair and effective representation. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). The population equality principle requires a quantitative analysis typically focusing on whether deviations from the average or median population district are impermissibly" }, { "docid": "4427619", "title": "", "text": "an equally unmanageable principle since governmental activities ‘cannot easily be classified in the neat categories as favored by civics texts, Avery [v. Midland County, 390 U.S. 474, 482, 88 S.Ct. 1114, 1119, 20 L.Ed.2d 45 (1968) ].’ ” Id. 397 U.S. at 55-6, 90 S.Ct. at 794-5. Accordingly, we conclude that the Board of Estimate is selected by popular election and performs general governmental functions. The principle of one person, one vote is therefore applicable. III. Because the district court found the one person, one vote rule inapplicable, no findings were made concerning the level of malapportionment, the weight of the state interests alleged to justify whatever level of deviation exists or whether the combination of at-large and local seats, in the context of the voting procedures of the Board, creates a system of representation that satisfies constitutional standards for instruments of local government. It is therefore proper to remand the case to the district court so that it can make such findings. Upon remand, the district court must determine the degree of malapportionment present (after deciding on the appropriate methodology for doing so) and rule on the policies and interests which the Supreme Court has held may justify deviations from the literal one person, one vote formula. “Mathematical exactness or precision is hardly a workable constitutional requirement,” Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1389, 12 L.Ed.2d 506 (1964), and this is “particularly true for state and local bodies, where more flexibility is constitutionally permissible due to the interest in the normal functioning of these institutions,” Baker v. Regional High School Dis trict No. 5, 476 F.Supp. 319, 323 (D.Conn.1979). The district court may find it desirable to amplify the record with regard to “the particular circumstances and needs of [the] local community as a whole [which] may sometimes justify departures from strict equality.” Abate v. Mundt, 403 U.S. 182, 185, 91 S.Ct. 1904, 1906, 29 L.Ed.2d 399 (1971). »Two brief comments as to arguments of intervenor-appellee Ponterio are in order. First, Ponterio attempts to demonstrate statistically that even if the votes of Brooklynites are diluted" }, { "docid": "22341189", "title": "", "text": "They are the ones most likely to be alert to problems with a machine tally. Permitting only candidates, political parties and committees, but not individual voters, to request recounts is a common practice among the states. I believe that Florida’s interest in the efficient administration of elections is sufficient to justify its decision to provide for the implementation of its manual recount provision on a decentralized, localized basis. My conclusion that the deprivation of rights alleged by the Plaintiffs does not merit strict scrutiny is supported by the contrast between this case and cases in which the Supreme Court has applied strict scrutiny: those cases have involved a complete deprivation of the right to vote or a differential weighting of votes based on impermissible classifications. In O’Brien v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702 (1974), the Supreme Court applied strict scrutiny to invalidate a state electoral scheme that completely denied individuals the right to vote based on arbitrary distinctions. See id. at 533, 94 S.Ct. at 745 (invalidating a New York absentee ballot statute that operated to deny otherwise eligible prisoners the right to vote, based solely on the prisoner’s county of incarceration). The reasoning of O’Brien does not apply here, however, as the Plaintiffs do not assert that they have been denied the right to vote or to have their vote counted; rather, they assert that them votes have received unequal treatment in the post-election counting process. In the one-person, one-vote cases, the Supreme Court has held that states’ weighted voting systems, which arbitrarily and systematically granted a lesser voice to some voters based on their geographic location, violated the voters’ right to equal protection. See Moore v. Ogilvie, 394 U.S. 814, 819, 89 S.Ct. 1493, 1496, 23 L.Ed.2d 1 (1969); Reynolds v. Sims, 377 U.S. 533, 563, 84 S.Ct. 1362, 1382, 12 L.Ed.2d 506 (1964); Roman v. Sincock, 377 U.S. 695, 709-10, 84 S.Ct. 1449, 1458, 12 L.Ed.2d 620 (1964); Gray v. Sanders, 372 U.S. 368, 379-80, 83 S.Ct. 801, 808, 9 L.Ed.2d 821 (1963). The facts presented by those cases are different from" } ]

[ { "docid": "8130151", "title": "", "text": "further assurance and he doubtless would decline to approve if advised of fatal defects, but he was not required to investigate and decide judicially matters lying back of and not appearing upon the face of the instrument. If he did his decision would not be conclusive. In that particular there is some analogy to a case-where a probate court, having jurisdiction of the estates of deceased persons, finds upon a showing that a man is dead, grants letters of administration upon his estate and orders its sale, when in fact the man is alive. The inquiry and finding of death are not conclusive. If the man is alive, the proceedings are void. Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896. There is another feature of the case. By section 20 of the act of April 26, 1906, c. 1876, 34 Stat. 137, which was in force when the lease was made, it was provided that “allotments of minors and incompetents may be rented or leased under the order of the proper court.” There was a local court having jurisdiction of the estates of minors, but the lease was not made under its order nor did the guardian of the lessor’s estate participate. It was held in Morrison v. Burnette, 83 C. C. A. 391, 154 Fed. 617, that leases of allotments of minors made with the approval of the local courts after April 26, 1906, when the above act took effect, were not subject to the approval or disapproval of the Secretary of the Interior. The decree is affirmed." } ]

[ { "docid": "21752983", "title": "", "text": "the most practical and satisfactory manner with the .condition which confronted it, in August, 1910, a commission was appointed\" to investigate the condition, qualifications, and competency of all Indian allot-tees; that commission reported on November 12, 1910; . thereto was appended a list of Indians not qualified to have the restrictions unconditionally removed from their allotments, but capable of conducting ordinary business transactions, such as leasing their lands. In this list appears the name of Mary J. Calf. It appears, however, that none of the parties to this litigation were named.under this classification. This was necessarily so, because the report was filed in 1910, and Mary J. Calf lived until 1912. Her minor heirs were, therefore, not covered by this report. It may be added, also, that in the various investigations and reports made the competency or ineompeteney of adult Qua-paws was uppermost in mind. Throughout the record minors are recognized as incompetents by reason of their minority within the language of the Act of June 7, 1897. This report of the Commissioner was approved by the department. About this time, to .wit, September 19, 1910, the Circuit. Court for the Eastern District of Oklahoma in United States v. Abrams, 181 F. 847, decided, in effect, that under the Act of June 7, 1897, Congress intended to placo the Indian upon his own responsibility, and that he should take his place as a citizen of the United States and of the state, together with all other citizens, of whatever race or color. The decree in that ease was affirmed by this court May 23,1912; one judge dissenting. 197 F. 292. Upon appeal to the Supreme Court that decree was reversed, with the holding that the Quapaw Indians were still under national tutelage, and the guardianship of the United States continued, notwithstanding the citizenship conferred upon allottees. 237 U. S. 74, 35 S. Ct. 532, 59 L. Ed. 844. This decision was rendered April 5, 1915. The mental attitude of the Indian Office and the county court of Ottawa county respecting leases under the Act of June 7,1897, is disclosed by" }, { "docid": "8884877", "title": "", "text": "courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter.” In re Debs, 158 U. S. 564, 584, 15 Sup. Ct. 900, 906 (39 L. Ed. 1092). The United States may maintain a suit to prevent the officers of a state from subjecting any of these means, whether they consist of real property or of personal property, to taxation for state or county purposes. United States v. Rickert, 188 U. S. 432, 443, 444, 23 Sup. Ct. 478, 47 L. Ed. 532; United States v. Thurston County, 143 Fed. 287, 289, 74 C. C. A. 425, 427. It has capacity to sue to avoid conveyances made by Indian allottees in violation of restrictions upon alienation, although it has no pecuniary interest therein, or in the land conveyed. It has this right to sue, because such conveyances violate its governmental rights and hinder or prevent the execution of its governmental policy. Heckman v. United States, 224 U. S. 413, 438, 32 Sup. Ct. 424, 56 L. Ed. 820; United States v. Allen, 179 Fed. 13, 103 C. C. A. 1; Wright v. United States (C. C. A.) 196 Fed. 1007; Bowling v. United States, 111 C. C. A. 561, 191 Fed. 19. On the same ground it may maintain suits to cancel leases procured from Indian allottees without the required approval of the Secretary of the Interior. United States v. Flournoy Live Stock & R. E. Co., 69 Fed. 886, 892, 893, 894; United States v. Noble, (C. C. A.) 197 Fed. 292. And it has capacity to sue to enforce and protect the treaty right of Indians to fish in waters outside Indian reservations. United States v. Winans (C. C.) 73 Fed. 72, 75. The breach by lessees of their covenants in leases with Indian allottees, the terms and conditions of which were prescribed and approved by the Secretary pursuant to the act of Congress, obviously may be as effective" }, { "docid": "3194858", "title": "", "text": "Oklahoma eases last cited involved estates of Indian heirs and it was held that the court was without jurisdiction to enter the judgments relied on as an estoppel. However, the question here presented involves not the jurisdiction of the Oklahoma courts but the jurisdiction of the courts of the United States. Does a United States District Court for the proper district, in a suit brought by the United States (the defendant having been brought into court by proper process) have jurisdiction to determine whether a deed of an Indian allottee was' made and delivered in violation of restrictions imposed by Congress? That such a question is a proper one for judicial inquiry and that a United States District Court for the proper district has jurisdiction in such a case is conclusively settled by an unbroken line of authorities. Heckman v. United States, 224 U. S. at pages 428-445, 32 S. Ct. 424, 56 L. Ed. 820; La Motte v. United States, 254 U. S. 570, 575, 41 S. Ct. 204, 65 L. Ed. 410; Mars v. McDougal (C. C. A. 10) 40 F.(2d) 247, 248; Ledbetter v. Wesley (C. C. A.) 23 F.(2d) 81, 86; Bowling v. United States, 233 U. S. 528, 534, 34 S. Ct. 659, 58 L. Ed. 1080; section 41, title 28, U. S. C. (28 USCA § 41). Such jurisdiction includes the power to determine the question presented erroneously as well as rightly. Ex parte Moran (C. C. A. 8) 144 F. 594; Jack v. Hood (C. C. A. 10) 39 F.(2d) 594. In applying the doctrine of estoppel by judgment, it is immaterial that the judgment which works it may have been erroneous, that the court may have been mistaken in the facts; may have misconceived the law, or may have disregarded the public policy of the nation when it rendered it, if the court had jurisdiction of the subject matter of, and the parties to, the action in which such judgment was rendered. Such a final judgment on the merits, in an action between the same parties or between those in privity with" }, { "docid": "9327355", "title": "", "text": "their right of occupancy to their lands, the lands allotted to the individual Indians, but still held in trust by the United States during the period of restriction upon alienation, the leases of these lands made by the Indian superintendents or agents on the terms and conditions fixed by the Secretary of the Interior and approved by him, the tools, animals, houses, improvements, and other property furnished to these Indians by the United States, and the proceeds and income from all these, are the. means ■by which the nation pursues its beneficent policy of protection and instruction and exercises its lawful powers of government.” Other decisions are to the same effect. Sizemore v. Brady, 235 U. S. 441, 35 Sup. Ct. 135, 59 L. Ed. 308; Heckman v. United States, 224 U. S. 413, 32 Sup. Ct. 424, 56 L. Ed. 820; Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L. Ed. 941; United States v. Nice, 241 U. S. 591, 36 Sup. Ct. 696, 60 L. Ed. 1192; Rainbow v. Young, 161 Fed. 835, 88 C. C. A. 653. Provisions of statutes similar in character to the one here under consideration have been construed broadly and liberally, with a view to effecting the purposes and carrying out the policy established by the government. In United States v. Thurston County, 143 Fed. 287, 74 C. C. A. 425, this court had under consideration section 7 of the act of Congress of May 27, 1902 (32 Stat. 245, c. 888 [Comp. St. 1916, § 4223]), as affecting the sale of lands held by the Omaha and Winnebago Indians under the act of August 7, 1882 (22 Stat. 342, c. 434), or the act of February 8, 1887 (24 Stat. 389, c. 119). The clause of sec- ^ tion 7 of the act of 1902 under consideration reads as follows: “That the adult heirs of any deceased Indian to whom, a trust or other patent containing restrictions upon alienation has been or shall be issued for lands allotted to him may sell and convey the lands inherited from" }, { "docid": "21752956", "title": "", "text": "the issues. Mary J. Calf, allottee, died about December 7,1912. She left as her heirs Clarissa (Clara) A. Valliere, now Showalter; John Buffalo; Mora Valliere (Clemons); and the appellants Georgia Valliere (Hampton), James Amos Valliere, and Iva Amelia Valliere. Of the remaining appellants, Ruth Buffalo De Hanas succeeds by inheritance to the one-sixth interest of John Buffalo, deceased, and Lelia Gregory by inheritance to one-half of the estate of Flora Valliere Clemons, deceased. May 5, 1914, a contract was entered into for a lead and zinc mining lease on the allotment of the said Mary J. Calf, in which contract the heirs of Mary J. Calf, by their guardians appointed by the county court of Ottawa county, Oklahoma, were grantors, and one J. S. Mabon was grantee. This contract, while taken in the name of Mabon, was for the joint benefit of himself, the appellee Lenoir C. Church, and Paul A. Ewert, now deceased, who is represented in this' appeal by Sidney T. Ewert, executrix under his will. This contract was assigned to appellee Welsh Mining Company, and on October 26, 1915, said mining 'company obtained a mining lease on said land from the guardians of appellants, appointed as hereinbefore stated. This lease ran for a term ending May 3, 1924, or 10 years, in effect, from the date of the original contract, and reserved a royalty of 5 per cent, to the lessors. On the date this lease was executed, all the heirs of Mary J. Calf, with the exception of Clarissa Showalter, were minors. Flora Valliere Clemons was 15 years of age; appellant James Amos Valliere, 14 years; Georgia Valliere Hampton, 12 years; and Iva Amelia Valliere, 9 years. John Buffalo, now deceased, was then 19 years old, and Clarissa Showalter had shortly before reached the age of 18 years. In executing the-lease aforesaid, one O. K. Knight acted as guardian for Iva Amelia Valliere; one A. S. Thompson, as guardian, for John Buffalo; Clarissa Valliere Showalter executed for herself and as guardian for Flora E. Valliere, James A. Valliere, and Georgia Valliere Hampton. The lease ih question" }, { "docid": "21752984", "title": "", "text": "by the department. About this time, to .wit, September 19, 1910, the Circuit. Court for the Eastern District of Oklahoma in United States v. Abrams, 181 F. 847, decided, in effect, that under the Act of June 7, 1897, Congress intended to placo the Indian upon his own responsibility, and that he should take his place as a citizen of the United States and of the state, together with all other citizens, of whatever race or color. The decree in that ease was affirmed by this court May 23,1912; one judge dissenting. 197 F. 292. Upon appeal to the Supreme Court that decree was reversed, with the holding that the Quapaw Indians were still under national tutelage, and the guardianship of the United States continued, notwithstanding the citizenship conferred upon allottees. 237 U. S. 74, 35 S. Ct. 532, 59 L. Ed. 844. This decision was rendered April 5, 1915. The mental attitude of the Indian Office and the county court of Ottawa county respecting leases under the Act of June 7,1897, is disclosed by the correspondence between the county judge of Ottawa county and the Commissioner of Indian Affairs. The former in his letter of June 23, 1915, says: “Recently there has been a question in the minds of several of the attorneys in the Qua-paw Agency relative to the authority of the county court to execute such contracts. And there is in my own opinion a serious doubt as to that authority. I have been unable to find any express act of Congress conferring jurisdiction upon the county court over the estates of Indian minors in the Quapaw Agency. * * * It will be noted that this express authority was given in the act of 1908 relative to the Five Civilized Tribes.” He then quotes section 4 of the Act of Congress approved June 25, 1910 (36 Stat. 856 [25 USCA § 403; Comp. St. § 4221]), and the proviso in the Act of June 7, 1897, here under discussion, and says: “It strikes me that, by construing these two sections together, there may be some merit" }, { "docid": "21752955", "title": "", "text": "VAN VALKENBURGH, Circuit Judge. This action was brought in the District Court for the Eastern District of Oklahoma to recover the value of lead and zinc ore- removed from the allotment of one Mary 'J. Calf, a full-blood Quapaw Indian who died on or about December 7, 1912. The pleadings are of great length, and the object of the suit is thus well epitomized in the brief of appellants : “It has for its purpose the cancellation of a certain contract for lead and zinc mining lease on said lands, as well as subsequent contracts in furtherance of the original contract, with the further purpose of having a trust declared in the proceeds of the ore sales resulting from mining operations under the several contracts in question or the recovery of a sum equal to the value thereof, and incidental relief by way of accounting, injunction, and the appointment of a receiver.” The relationship of the parties to the litigation will be hereinafter stated, in so far as may be necessary for an understanding of the issues. Mary J. Calf, allottee, died about December 7,1912. She left as her heirs Clarissa (Clara) A. Valliere, now Showalter; John Buffalo; Mora Valliere (Clemons); and the appellants Georgia Valliere (Hampton), James Amos Valliere, and Iva Amelia Valliere. Of the remaining appellants, Ruth Buffalo De Hanas succeeds by inheritance to the one-sixth interest of John Buffalo, deceased, and Lelia Gregory by inheritance to one-half of the estate of Flora Valliere Clemons, deceased. May 5, 1914, a contract was entered into for a lead and zinc mining lease on the allotment of the said Mary J. Calf, in which contract the heirs of Mary J. Calf, by their guardians appointed by the county court of Ottawa county, Oklahoma, were grantors, and one J. S. Mabon was grantee. This contract, while taken in the name of Mabon, was for the joint benefit of himself, the appellee Lenoir C. Church, and Paul A. Ewert, now deceased, who is represented in this' appeal by Sidney T. Ewert, executrix under his will. This contract was assigned to appellee Welsh" }, { "docid": "21752968", "title": "", "text": "either find or settle or adjudicate any differences existing between the Welsh Mining Company or its assignees and the Skelton Lead & Zinc Company, growing out of their previous relationship, interests, or dealing concerning the mining leasehold rights on the above-mentioned Mary J. Calf allotment.” The Secretary approved the new lease in the following language: “The petition of Mr. Paul A. Ewert, mentioned above, is hereby denied. The lease of July 9, 1920, of the allotment of Mary J. Calf, deceased, to the Skelton Lead & Zinc Mining Company, for lead and zinc mining purposes, has this day been approved in accordance with the recommendation of the Assistant Commissioner of Indian Affairs above set forth. Payne, Secretary.” The petition of Paul A. Ewert mentioned was for rehearing in the matter of the mining leases on the Mary J. Calf allotment, etc., upon which the ruling of the Secretary was made. Briefly stated, the position of appellants is: (1) That the original contract and lease were void, because the minor heirs conveyed through guardian, without approval of the Secretary of the Interior. (2) That all who profited, directly or indirectly, thereunder should be held to respond in damages as trespassers and trustees ex maleficio. (3) That the original contract became forfeit for nonperformance on the part of Mabon, and in any event, that the succeeding lease was void, under the authority of United States v. Noble, 237 U. S. 74, 35 S. Ct. 532, 59 L. Ed. 844. Appellees contend: (1) That the lease was valid because the Act of June 7, 1897, presumptively removed all restrictions upon leasing, and that the approval of the Secretary was not required, unless it was first made to appear that by reason of age or disability the allottee could not improve or manage his allotment properly and with benefit to himself. (2) That this was the construction placed upon the act by the department, on the faith of which the lessees and their assigns were led to make a large investment in the way of development and improvements upon the leased premises. (3) And," }, { "docid": "21752988", "title": "", "text": "United States v. Noble, 237 U. S. 74, 35 S. Ct. 532, 59 L. Ed. 844, was announced. In the District Court, and in this court, the government had been represented by Paul A. Ewert, then in government employ. He resigned his position in 1912. He procured the contract with Mabon, which ripened into the lease of October 26, 1915, while these cases were before the Supreme Court on appeal. He, therefore, had personal knowledge of the question involved. With respeet to his interest in the lease on this allotment, he says in a letter of January 14, 1919, to the Commissioner of Indian Affairs: “I was to be the owner of those leases, and in truth and in fact the owner of the leases. I was the 'captain of industry.’ I was acquiring the leases. I was letting Church and Mabon in, if they would agree to do the drilling that the probate court might require to bo done. I was giving them one-half of this 5 per cent, lease.” Upon this statement, and upon the record generally, the status of the Ewert interest must be fixed as that of a joint lessee, unaltered in substance by the subsequent con tracts between Ewert and appellees Church and Mabon. The foregoing recitals, tedious in extent, but essential to a fuller understanding of the issues framed, fairly present those features of the evidence from which the application of the act of June, 1897, to the present controversy may be deduced. We conclude that, under the spirit as well as the letter of that act, the allotments of Quapaw minors could not be leased, except in the discretion. of the Secretary of the Interior, with his approval, and upon such terms and conditions as^ should be prescribed by him; that the regulations promulgated, and the record as a whole, reveal conclusively that this was the interpretation which the department placed upon the act; that any seeming departure from this construction was suggestive merely, was never established as the administrative policy of the department, and, meeting with strong opposition, was abandoned long prior" }, { "docid": "2053700", "title": "", "text": "of the purchase price was not covered by the regulations and that the condition in the deed from the mortgagors that the '¡land should be subject to restrictions was ineffectual. To support his contention, the appellant relies mainly upon the eases of Levindale Lead & Zinc Co. v. Coleman, 241 U. S. 432, 36 S. Ct. 644, 60 L. Ed. 1080, and La Motte v. United States, 254 U. S. 570, 41 S. Ct. 204, 65 L. Ed. 410, as well as the cases holding that a restriction against alienation contained in a deed at common law is invalid. See 8 R. C. L. 1114. In the first case the question was whether Coleman, a white man, who had received by inheritance from his Osage wife and child an interest, allotted in their right, held sueb. lands subject to the restrictions against alienation imposed by the act of 1906. The court said (241 U. S. 440, 36 S. Ct. 644, 647, 60 L. Ed. 1080): “We confine ourselves to the single point presented. There is no controversy whatever as to the authority of the Secretary of the Interior, where there are undivided interests belonging to Indians, adequately to protect those interests according to the statutory provisions to this end. Our conclusion simply is that the act of 1906 placed no restrictions upon the alienation of land, or undivided interests in land, of which white men who were not members of the tribe became owners.” This ease is merely authority for the proposition that the act of 1906 was passed for the benefit and protection of members of the tribe, and not nonmembers, and that a nonmember, who had acquired absolute title by inheritance to an allotment or undivided interest therein, held it free of restrictions. The second case relied on — La Motte v. United States — rules that leases of Osage lands which had become unrestricted and had been thereafter acquired by members of the tribe without certificates of competency, were valid without the approval of the Secretary of the Interior. It was also held in that ease that," }, { "docid": "21752989", "title": "", "text": "upon the record generally, the status of the Ewert interest must be fixed as that of a joint lessee, unaltered in substance by the subsequent con tracts between Ewert and appellees Church and Mabon. The foregoing recitals, tedious in extent, but essential to a fuller understanding of the issues framed, fairly present those features of the evidence from which the application of the act of June, 1897, to the present controversy may be deduced. We conclude that, under the spirit as well as the letter of that act, the allotments of Quapaw minors could not be leased, except in the discretion. of the Secretary of the Interior, with his approval, and upon such terms and conditions as^ should be prescribed by him; that the regulations promulgated, and the record as a whole, reveal conclusively that this was the interpretation which the department placed upon the act; that any seeming departure from this construction was suggestive merely, was never established as the administrative policy of the department, and, meeting with strong opposition, was abandoned long prior to the contract and lease in suit. We have not lost sight of the rule that, when the executive department charged with the execution of a statute gives a construction to it and acts upon that construction for a series of years, the court looks with disfavor upon a change whereby parties who had contracted upon the faith of the old construction may be injured. United States v. Alabama Great Southern R. R. Co., 142 U. S. 615, 12 S. Ct. 306, 35 L. Ed. 1134. But it is equally true that an administrative practice which enlarges the scope of an unambiguous statute, and which is neither uniform, general, nor long continued, cannot be given the force and effect of law. Iselin v. United States, 270 U. S. 245, 46 S. Ct. 248, 70 L. Ed. 566. And if a departmental construction of a statute is clearly wrong, it is the duty of the court so to adjudge. United States v. Finnell, 185 U. S. 236, 22 S. Ct. 633, 46 L. Ed. 890. The" }, { "docid": "21752996", "title": "", "text": "ward for the inadequacy of such returns. In the first place, the Secretary of the Interior did not approve the old lease. He declared it void. So one of the first elements of subsequent validation is lacking. In the next place, it appears quite clearly from the record that the regular, customary, and adequate return upon such leases was a sum of money equal to 10 per centum of the market value of the products mined. This lease reserved a royalty of but 5 per cent. It is evident that the Secretary of the Interior did not consider this a fair return, and we concur in that view. The minor Indians were, in our judgment, overreached and imposed upon in the lease conveyance made. The appellants, children and heirs of Mary J. Calf, were all of tender years. Furthermore the power of the Secretary ordinarily is one of approval or disapproval. He cannot initiate or make a lease. Midland Oil Co. et al. v. Turner (C. C. A. 8) 179 F. 74; Seep et al. v. Spade (C. C. A. 8) 179 F. 77; Jennings v. Wood et al. (C. C. A. 8) 192 F. 507. In United States v. Noble, 237 U. S. 74, 35 S. Ct. 532, 59 L. Ed. 844, the practice of making overlapping leases was expressly disapproved, as violative of the letter and spirit of the act. It was pointed out, however, that an agreement for a new lease, at a fair rental, made shortly before the expiration of an existing lease, would probably be sustained. This presupposes the existence of a valid existing lease. In our judgment, the making of a 10-year lease, with 4 years of a prior invalid lease yet to ran, the lessees being permitted to retain the fruits of 6 years’ enjoyment of that invalid lease, would run counter to the provisions of the act of 1897 and to the construction placed upon it by the Supreme Court, and we doubt the power of the Secretary of the Interior, by compromise or settlement, to bring about such an anomalous result." }, { "docid": "13287221", "title": "", "text": "act the minor child, Anna G. McNabb, was enrolled as a citizen or member of the Cherokee Nation, living on March 4, 1906, whose parents were duly enrolled citizens of that nation. This enrollment was duly approved by the Secretary of the Interior January 24, 1907, and the name of said minor has never been stricken from such rolls. Who shall be enrolled as citizens or members of the nation and permitted to participate in the distribution of its property are matters to be determined by Congress, and its determination of them is not subject to review by the courts. Stephens v. Cherokee Nation, 174 U. S. 445-483, 488, 489, 19 Sup. Ct. 722, 43 L. Ed. 1041; Cherokee Nation v. Hitchcock, 187 U. S. 294, 23 Sup. Ct. 115, 47 L. Ed. 183; Wallace v. Adams, 143 Fed. 716-723, 74 C. C. A. 540; Id., 204 U. S. 415, 27 Sup. Ct. 363, 51 L. Ed. 547. The enrollment of this minor conclusively determines her right to participate in the distribution of the tribal property of the Cherokee Nation. The act of Congress, approved May 27, 1908 (35 Stat. 312, c. 199), provides (section 1) that from and after 60 days from its approval the status of the lands theretofore or thereafter allotted to allottees of the Five Civilized Tribes shall as regards restrictions upon alienation and incumbrances be as follows: “All lands including homesteads of said allottees enrolled as * * * mixed blood Indians having less than half Indian blood, including minors, shall be free from all restrictions. * * * ” And in section 6, that the persons and property of the minor allotfees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the state of Oklahoma, and the Secretary of the Interior may appoint local representatives, citizens of or residents within, the state of Oklahoma, who shall have power to inquire into and investigate the conduct of guardians having in charge the estates of minors, and to take such steps as" }, { "docid": "3194857", "title": "", "text": "res adjudicata. They predicate this contention upon two principal propositions. As their first proposition, counsel for appellants assert that a decree of a court cannot remove restrictions on alienation by an Indian, imposed by acts of Congress, or render valid a deed made in violation of such restrictions. In support of this proposition, they cite and rely upon Tidal Oil Co. v. Flanagan, 87 Okl. 231, 209 P. 729; Cotton v. McClendon, 128 Okl. 48, 261 P. 150; Bell v. Fitzpatrick, 53 Okl. 574, 157 P. 334; Crow v. Hardridge, 73 Okl. 136,, 175 P. 115; Bilby v. Malone, 130 Okl. 217, 266 P. 760; Brink v. Canfield, 78 Okl. 189, 187 P. 223; and Goodrum v. Buffalo (C. C. A. 8) 162 F. 817. In the first four of the cases cited above, it was held that each of the judgments, relied upon as an estoppel, had been rendered by a court which had no jurisdiction of the subject matter of the action, namely, the real property of a restricted Indian minor. The two Oklahoma eases last cited involved estates of Indian heirs and it was held that the court was without jurisdiction to enter the judgments relied on as an estoppel. However, the question here presented involves not the jurisdiction of the Oklahoma courts but the jurisdiction of the courts of the United States. Does a United States District Court for the proper district, in a suit brought by the United States (the defendant having been brought into court by proper process) have jurisdiction to determine whether a deed of an Indian allottee was' made and delivered in violation of restrictions imposed by Congress? That such a question is a proper one for judicial inquiry and that a United States District Court for the proper district has jurisdiction in such a case is conclusively settled by an unbroken line of authorities. Heckman v. United States, 224 U. S. at pages 428-445, 32 S. Ct. 424, 56 L. Ed. 820; La Motte v. United States, 254 U. S. 570, 575, 41 S. Ct. 204, 65 L. Ed. 410; Mars" }, { "docid": "21752993", "title": "", "text": "must be conceded that, when the consent of the Secretary of the Interior is necessary to give effect to a deed or lease of public land, that approval .may be retroactive by way of relation as of the date of the deed, Lykins v. McGrath, 184 U. S. 169-171, 22 S. Ct. 450, 46 L. Ed. 485; Pickering v. Lomax, 145 U. S. 310, 12 S. Ct. 860, 36 L. Ed. 716; Lomax v. Pickering, 173 U. S. 26, 27, 19 S. Ct. 416, 43 L. Ed. 601; this, upon the theory that the restriction is placed upon alienation in order that the Indian may not be wronged in any disposition of his property he may desire to make. The approval by the Secretary, although subsequently made, carries with it the presumption that the Indian grantor was in no manner imposed upon in the conveyance made without original approval. In Anchor Oil Co. v. Gray, 257 F. 277, this court has held that a lease of his lands by an allottee of the Five Indian Tribes, when approved after his death by the Secretary of the Interior, relates back to and takes effect as of the date of its execution. It was further held that the Secretary of the Inte rior had plenary authority to approve and validate the lease of an allottee after his death, notwithstanding the provision of section 9 of the act of May 27, 1908. And again, in United States v. Dunn, 288 F. 158, we held that: “A compromise and settlement, made by the United States, through which it received moneys for a minor Indian, had the effect of confirming an oil lease of the Indian’s land, and rendered the lease valid, though guardian of minor Indian was guilty of fraud in retaining secret interest in the lease.” Judge Lewis in his opinion said: “The compromise and settlement made by the plaintiff through which it received $45,000 for the minor had the effect of confirming the lease. * * * There is no testimony in the record which supports a conclusion that the Thomas lease" }, { "docid": "13287226", "title": "", "text": "made pursuant thereto were duly approved by that court. If the land in question was in fact allotted to this minor and sold to the defendant upon order of the proper probate court, after the removal of the restrictions upon alienation thereof, as contended by the defendant, such facts are sufficient to distinguish the case from United States v. Allen, and the right of the government to maintain the suit is not necessarily controlled by that decision. It is not claimed in behalf of the government that this minor is not in fact entitled to the land in question, or that it will not ultimately be conveyed to her as a part of the allotment she has selected, and to which she is entitled; but its sole contention is that the right of the Secretary of the Interior to prescribe rules under which allotments shall be made authorizes that officer to direct the commission to withhold allotments and the evidence thereof until he shall see fit to direct or make the same, and that, until so made and the certificate or patent has been in fact issued, the land remains a part of the tribal property of the Cherokee Nation and subject to the control of ilie United States as trustee and guardian of such property. It is true that the Secretary of the Interior may prescribe reasonable rules and regulations not inconsistent with, or contrary to, the law of Congress, under which allotments shall be made; but this does not authorize him to withhold an allotment altogether from one shown by the rolls to be entitled thereto. Morrill v. Jones, 106 U. S. 466, 467, 1 Sup. Ct. 423, 27 L. Ed. 267; Quinn v. Chapman, 111 U. S. 445-455, 4 Sup. Ct. 508, 28 L. Ed. 476; United States v. Symonds, 120 U. S. 46-49, 7 Sup. Ct. 411, 30 L. Ed. 557; Hartman v. Warren, 76 Fed. 157-162, 22 C. C. A. 30; Leecy v. U. S., 190 Fed. 289, 292, 293. The enrollment within the time required and as of the date fixed determines the right" }, { "docid": "21752995", "title": "", "text": "was made for an inadequate consideration, and that it did not provide fair and reasonable returns to the ward.” If we were to concede to appellees full force to the principle urged, to wit, that the Secretary of the Interior may by subsequent approval validate a lease theretofore executed without his approval, and may, in certain eases, adjust and settle the rights and liabilities of the parties thereto, still we think in the case before us the facts do not justify the application of that rule. As stated in the eases cited from the Supreme Court, and from this court, the approval must ultimately be made in order to validate what has gone before. It must further appear that the Indian grantor was in no manner imposed upon in the conveyance; that the lease made was for an adequate consideration and provided fair and reasonable returns to the ward; and that, if this be not true, at least some return must be exacted from the lessee in the compromise and settlement made to compensate the ward for the inadequacy of such returns. In the first place, the Secretary of the Interior did not approve the old lease. He declared it void. So one of the first elements of subsequent validation is lacking. In the next place, it appears quite clearly from the record that the regular, customary, and adequate return upon such leases was a sum of money equal to 10 per centum of the market value of the products mined. This lease reserved a royalty of but 5 per cent. It is evident that the Secretary of the Interior did not consider this a fair return, and we concur in that view. The minor Indians were, in our judgment, overreached and imposed upon in the lease conveyance made. The appellants, children and heirs of Mary J. Calf, were all of tender years. Furthermore the power of the Secretary ordinarily is one of approval or disapproval. He cannot initiate or make a lease. Midland Oil Co. et al. v. Turner (C. C. A. 8) 179 F. 74; Seep et al." }, { "docid": "21502989", "title": "", "text": "be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee.” The following decisions by the Supreme Court of Oklahoma support the contention of the defendant: Chupco et al. v. Chapman et al., 76 Okl. 201, 170 P. 259; Pluto Oil & Gas Co. et al. v. Miller, 95 Okl. 222, 219 P. 303; Gypsy Oil Co. v. Clinton et al., 98 Okl. 282, 220 P. 587. The last-mentioned case involved the same lease and the same question presented by this record. We believe, however, the answer to the question here presented may be found in two decisions of the Supreme Court, namely, Parker v. Richard et al., 250 U. S. 235, 39 S. Ct. 442, 63 L. Ed. 954, and Harris et al. v. Bell et al., 254 U. S. 103, 41 S. Ct. 49, 65 L. Ed. 159, both written by Mr. Justice Van Devanter, the former decided June 2, 1919, and the latter November 15, 1920. Parker v. Richard, supra, upon which counsel for plaintiff largely bottom their contentions, was a suit to enjoin the Superintendent and Cashier of the Five Civilized Tribes, from collecting future royalties on an oü and gas lease of land aEotted to a Creek Indian, and to compel them to surrender royalties already collected. The land was part of the Creek Tribal lands, and was allotted under the Acts of March 1, 1901 (31 Stat. 861), and June 30, 1902 (32 Stat. 500). The aEottee was a minor and an enrolled Indian of the fuE blood. In 1912, whEe he was yet a minor, the oü and gas lease was given by his guardian. It was approved by the court having jurisdiction of his estate, and by the Secretary of the Interior. The aEottee died in 1916 whEe stEl a minor, and left his father, a full-blood Creek Indian, as his only heir. The plain tiffs in the action were the administrators of the estate of the deceased allottee. The lease provided, conformable to the regulations, that the Secretary of the Interior through his" }, { "docid": "17436623", "title": "", "text": "without merit. If good as to a mental incompetent, it would be good as to an Indian under age or even an infant. The suggestion has been disapproved by the Circuit Court of Appeals for the Eighth Circuit. Decree affirmed. Mr. Justice Stone did not participate in the consideration or decision of this case. 33 F. (2d) 340. 37 F. (2d) 860. Acts March 1, 1901, c. 676, 31 Stat. 861; June 30, 1902, c. 1323, 32 Stat. 500; May 27, 1908, c. 199, 35 Stat. 312. And see Act May 10, 1928, c. 517, 45 Stat. 495. Sunderland v. United States, 266 U. S. 226, 235; Starr v. Campbell, 208 U. S. 527, 533; United States v. Thurston County, 143 Fed. 287, 291; National Bank of Commerce v. Anderson, 147 Fed. 87. 90. The Act of May 27,1908, c. 199, 35 Stat. 312, provides: “Sec. 1. . . . That ... all allotted lands of enrolled full-bloods . . . shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance . . . except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. . . . “ Sec. 2. That all lands other than homesteads . . . from which restrictions have not been removed may be leased by the allottee if an adult, or by guardian or curator under order of the proper probate court if a minor or incompetent, for a period not to exceed five years, without the privilege of renewal: Provided, That leases of restricted lands for oil, gas or other mining purposes, leases of restricted homesteads for more than one year, and leases of restricted lands for periods of more than five years, may be made, with the approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise.” Choate v. Trapp, 224 U. S. 665, 677. And" }, { "docid": "21752957", "title": "", "text": "Mining Company, and on October 26, 1915, said mining 'company obtained a mining lease on said land from the guardians of appellants, appointed as hereinbefore stated. This lease ran for a term ending May 3, 1924, or 10 years, in effect, from the date of the original contract, and reserved a royalty of 5 per cent, to the lessors. On the date this lease was executed, all the heirs of Mary J. Calf, with the exception of Clarissa Showalter, were minors. Flora Valliere Clemons was 15 years of age; appellant James Amos Valliere, 14 years; Georgia Valliere Hampton, 12 years; and Iva Amelia Valliere, 9 years. John Buffalo, now deceased, was then 19 years old, and Clarissa Showalter had shortly before reached the age of 18 years. In executing the-lease aforesaid, one O. K. Knight acted as guardian for Iva Amelia Valliere; one A. S. Thompson, as guardian, for John Buffalo; Clarissa Valliere Showalter executed for herself and as guardian for Flora E. Valliere, James A. Valliere, and Georgia Valliere Hampton. The lease ih question purported to be made under authority of the Act of June 7, 1897 (30 Stat. 72), which reads as follows: “That the allottees of land within the limits of the Quapaw Agency, Indian Territory, are hereby authorized to lease their lands, or any part thereof, for a term not exceeding three years, for farming or grazing purposes, or ten years for mining or business purposes. And said allottees and their lessees and tenants shall have the right to employ such assistants, laborers, and help from time to time as they may deem necessary: Provided, that whenever it shall be made to appear to the Secretary of the Interior that, by reason of age or disability, any such allottee cannot improve or manage his allotment properly and with benefit to himself, the same may be leased, in the discretion of the Secretary, upon such terms and conditions as shall be prescribed by him. All acts and parts of acts inconsistent with this are hereby repealed.” The contract for lease was approved and confirmed by the probate" } ]

[ { "docid": "22103619", "title": "", "text": "petitioners met these standards and were eligible for relief. But the statute does not contemplate that all aliens who meet the minimum legal standards will be granted suspension. Suspension of deportation is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised even though statutory prerequisites have been met. Nor can we say that it was abuse of discretion to withhold relief in this case. The reasons relied on by the Hearing Officer and the Board — mainly the fact that petitioners had established no roots or ties in this country— were neither capricious nor arbitrary. Petitioners urge that the Board applied an improper standard in exercising its discretion when, in its opinion on rehearing, it took into account the congressional policy-underlying the Immigration and Nationality Act of 1952, the latter being concededly inapplicable to this case. We cannot agree with this contention. The second opinion makes clear that the Board still considered petitioners eligible for suspension under the 1917 Act and denied relief solely as a matter of discretion. And we cannot say that it was improper or arbitrary for the Board to be influenced, in exercising that discretion, by its views as to congressional policy as manifested by the 1952 Act. Section 19 (c) does not state what standards are to guide the Attorney General in the exercise of his discretion. Surely it is not unreasonable for him to take cognizance of present-day conditions and congressional attitudes, any more than it would be arbitrary for a judge, in sentencing a criminal, to refuse to suspend sentence because contemporary opinion, as exemplified in recent statutes, has increased in rigour as to the offense involved. This conclusion is fortified by the fact that § 19 (c) provides for close congressional supervision over suspensions of deportation. In every case where suspension for more than six months is granted a report must be submitted to Congress, and if thereafter Congress does not pass a concurrent resolution approving the suspension of deportation, the alien must then be deported. In other words, every such suspension must be approved by" } ]

[ { "docid": "1400701", "title": "", "text": "suspension of deportation by the change of phraseology which was used in Section 244(a) of the Immigration and Nationality Act [8 U.S.C.A. § 1254(a)] as well as the Congressional comment at the time this provision was enacted. We indicated in our previous order that the deportation of the respondents would result in a serious economic detriment to their citizen minor child, and we do not question that the respondents have established the statutory requirements for suspension of deportation under Section 19(c) of the Immigration Act of 1917, as amended.” ****** “Upon our further review of the cases of the two respondents, we adhere to our previous decision that suspension of deportation should be denied as a matter of administrative discretion and counsel’s motion will, therefore, be denied.” By these two paragraphs the Board made it abundantly clear that it adhered to its previous holding that the appellants’ eligibility for a suspension was controlled by the 1940 Act; that under that Act the appellants were indeed eligible; and that dn the exercise of its discretion it denied the suspension applied for. Having thus stated that its decision was made in the exercise of its discretion, we see no room whatever for the argument that the Board had failed or refused to exercise its discretion. In this respect, the case here is distinguishable from Mastrapasqua v. Shaughnessy, 2 Cir., 180 F.2d 999, in which the Board had refused to exercise its discretion. And since the Board found the appellants eligible for a suspension under the eligibility standard of the 1940 Act, its decision was not in conflict with our decision in United States ex rel. Zacharias v. Shaughnessy, 221 F.2d 578. The only remaining question is whether in its May opinion the reference to Section 244(a) of the Immigration and Nationality Act of 1952 indicates that in the formulation of its discretion the Board was improperly influenced by Congressional policy as manifested by the later Act. As to this, it will be noted that neither the 1940 Act nor the 1952 Act provide any indication of the factors which shall control the" }, { "docid": "1400707", "title": "", "text": "exercise of discretion to be consonant with the policy of that Act,—not that the scope of its discretionary power was restricted by that Act. Affirmed. . Now 8 U.S.C.A. § 1254(a). “1. [United States ex rel.] Weddeke v. Watkins [2 Cir.], 166 F.2d 369; and [United States ex rel.] Kaloudis v. Shaughnessy [2 Cir.], 180 F.2d 489.” FRANK, Circuit Judge (dissenting). When this court, on a petition for rehearing publishes a supplemental opinion which adheres to the previous decision, but on new grounds, the new opinion with its new rationale is invariably and correctly taken, by us and others, as reporting the basis of our decision. I think we must deal similarly with the Board. Accordingly, I think we must look to its second opinion, responsive to the motion for reconsideration, to learn the basis on which the Board refused to exercise its discretion favorably to appellants. The Board’s second opinion is set forth in full in the Appendix hereto. There the Board plainly stated, as follows, that it relied on Section 244(a) of the 1952 Act: “It is crystal clear that Congress intended to greatly restrict the granting of suspension of deportation by the change of phraseology which was used in Section 244(a) of the Immigration and Nationality Act as well as the Congressional comment at the time this provision was enacted.” Judge Dawson, in dismissing the habeas corpus writ, recognized that the Board took “into account the new standard which was laid down by Congress,” and held that the Board, in so doing, acted properly. Here the Board erred. The new statute narrowed the discretion of the Attorney General and thus of his delegate, the Board. Thus the Board did not feel free to exercise the discretion it had under the properly applicable legislation, i. e., the statute as it stood before the 1952 amendment. However, the new Act, as my colleagues concede, had no application to this case. Accordingly, it was precisely as if the Board, without relying on the amended Act, had declared that it would never grant discretionary relief unless deportation would “result in exceptional" }, { "docid": "1400708", "title": "", "text": "1952 Act: “It is crystal clear that Congress intended to greatly restrict the granting of suspension of deportation by the change of phraseology which was used in Section 244(a) of the Immigration and Nationality Act as well as the Congressional comment at the time this provision was enacted.” Judge Dawson, in dismissing the habeas corpus writ, recognized that the Board took “into account the new standard which was laid down by Congress,” and held that the Board, in so doing, acted properly. Here the Board erred. The new statute narrowed the discretion of the Attorney General and thus of his delegate, the Board. Thus the Board did not feel free to exercise the discretion it had under the properly applicable legislation, i. e., the statute as it stood before the 1952 amendment. However, the new Act, as my colleagues concede, had no application to this case. Accordingly, it was precisely as if the Board, without relying on the amended Act, had declared that it would never grant discretionary relief unless deportation would “result in exceptional and extremely unusual hardship to the alien, his spouse, parent or child.” Such a restriction by the Board of the breadth of its discretion was arbitrary and therefore illegal. This case is like Mastrapasqua v. Shaughnessy, 2 Cir., 180 F.2d 999, 1002-1004. There, an Italian seaman, detained in this country during the war, sought the discretionary relief of pre-examination or, in the alternative, suspension of deportation. The Board of Immigration Appeals refused to exercise its discretion because Mastrapasqua was in a class of aliens (those in the United States solely for reasons connected with the war) which the Attorney General, in a prior case, had said should be denied discretionary relief. We held that the Board was not justified in so refusing to exercise its discretion in this class of cases, since the classification was irrational and capricious, and we ordered Mastrapasqua’s release from custody unless the Board, within a reasonable time, exercised its discretion one way or the other, without reliance on any such limitation on its discretion. My colleagues lean heavily on United" }, { "docid": "6388915", "title": "", "text": "bankruptcy prior to October 1, 1979, to the extent relevant here, the provisions of the Bankruptcy Act rather than the new Bankruptcy Code, 11 U.S.C. §§ 101 et seq., apply. Bankruptcy Reform Act of 1978, Pub.L.No. 95-598 § 403, 92 Stat. 2683. . Both the district court and this court refused to stay the district court’s order. At oral argument, appellants’ counsel informed us that the Supreme Court also refused to stay the order. . It should be noted that under the new Bankruptcy Code, the jurisdiction of the courts of appeals is apparently limited to review of final orders. See 28 U.S.C. § 1293 (Supp. III 1979). Section 1293 is effective April 1, 1984 pursuant to the Bankruptcy Reform Act of 1978, Pub. L.No. 95-598 § 402(b), 92 Stat. 2682. See generally 1 Collier on Bankruptcy ¶¶ 3.03[7][d][v], 3.03[7][e] (15th ed. 1980). . Appellants argue that this court may not consider these admitted facts since Cantwell’s discharge and the appellants’ failure to appeal from the discharge occurred after filing of the notice of appeal and are not of record. However, facts bearing on the issue of mootness can be raised at any time during the judicial proceedings. See, e. g., Samoff v. International Assoc. of Machinists District Lodge No. 1, 420 F.2d 952 (3d Cir. 1969), cert. denied, 398 U.S. 965, 90 S.Ct. 2171, 26 L.Ed.2d 548 (1970). See also, Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U.Pa.L.Rev. 772 (1955). . The comparable provision of the Bankruptcy Code is found in 11 U.S.C. § 727(d) and (e) (Supp. III 1979). ADAMS, Circuit Judge, concurring in the result. I concur in the result reached by the majority on the ground that the failure to appeal the bankruptcy court’s order granting Cantwell’s discharge has rendered the case moot. Because this Court is now unable to alter the grant of the discharge, we are incapable of providing appellants the relief requested. In light of the policy of the new Bankruptcy Code, limiting review-ability in the appeals courts to final orders, I would refrain from deciding what has" }, { "docid": "18728518", "title": "", "text": "a few recalcitrant creditors to provide a basis for future threats to extract full payment. The less expensive out-of-court workout may better serve the interests in the case. Likewise, if there is pending a foreign proceeding concerning the debtor and the factors specified in proposed 11 U.S.C. 304(c) warrant dismissal or suspension, the court may so act. Subsection (b) gives a foreign representative authority to appear in the bankruptcy court to request dismissal or suspension. Subsection (c) makes the dismissal or suspension order nonreviewable by appeal or otherwise. The bankruptcy court, based on its experience and discretion is vested with the power of decision. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 325 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 6281-82. Although § 305(c) clearly provides that an order denying abstention is not reviewable, the continued vitality of this bar to appellate review is subject to some uncertainty in the wake of Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), and the “Emergency Rule” which was adopted by the federal district courts across the country in December of 1982 to preclude a complete lapse of the bankruptcy court’s jurisdiction. Notwithstanding these issues, the legislative history indicates that the bankruptcy court should abstain only on the basis of its informed discretion, and thus, if such an order is now appealable, it may be overturned only on the basis of an abuse of discretion. Apparently § 305(c) will not bar us from reconsidering our own order. The debtor asserts two bases for vacating our order for relief, the first of which is based on the following language from our prior opinion: The assignee asserts that he will be able to avoid transactions amounting to $347,-000.00 made within the fourth month vulnerability period provided by state law, although said transfers occurred more than ninety days prior to the filing of the involuntary petition and thus ostensibly are not avoidable under 11 U.S.C. § 547(b) of the Code. But see, 11 U.S.C. § 544(b). Kenval, at 244-245. In obliquely referring to §" }, { "docid": "1400711", "title": "", "text": "in connection with the application of the pre-1952 test for determining eligibility of an alien for citizenship, the Supreme Court said, in United States v. Menasche, 348 U.S. 528, 535, 75 S.Ct. 513, 518, 99 L.Ed. 615 “The whole development of this general savings clause, its predecessors accompanying each of the recent codifications in the field of immigration and naturalization, manifests a well-established congressional policy not to strip aliens of advantages gained under prior laws. The consistent broadening of the savings provision, particularly in its general terminology, indicates that this policy of preservation was intended to apply to matters both within and without the specific contemplation of Congress.” In United States ex rel. Zacharias v. Shaughnessy, 2 Cir., 221 F.2d 578, this court, adopting the liberal view of the savings clause set forth in Menasche, held that the eligibility of an alien who came within the clause, for the discretionary relief of voluntary departure, was to be determined under the pre-1952 statute. I think that the same considerations which caused us to so hold in Zacharias require that we now order the Board to exercise its discretion in determining whether to suspend the deportation of petitioners without regard to the new and more severe standard adopted by Congress in the 1952 Act. Appendix The Board’s Second Opinion “These cases are before us on counsel’s motion to reopen the proceedings for reconsideration of the respondents’ applications for suspension of deportation. “The male respondent last entered the United States on August 15, 1951 and the female respondent on July 4, 1951. Both arrived as seamen and have been found deportable on the charge that they were immigrants at the time of entry and were not in possession of immigration visas. They have one child who was born in the United States during November 1951. On March 18, 1954, we dismissed the appeals of the respondents from the hearing officer’s decision granting voluntary departure and denying suspension of deportation. After considering all the facts in the case at that time, we denied suspension of deportation as a matter of administrative discretion. “Counsel’s motion" }, { "docid": "1120930", "title": "", "text": "in the present situation. Abstention under § 305[a][l] is permitted only if the interests of creditors and the debtor would be better served by dismissal of a case or suspension of all proceedings. A reading of the following legislative history is instructive: This section [305] recognizes that there are cases in which it would be appropriate for the court to decline jurisdiction. Abstention under this section, however, is of jurisdiction over the entire case.... Thus, the court is permitted, if the interests of creditors and the debtor would be better served by dismissal of the case or suspension of all proceedings in the case, to so order. The court may dismiss or suspend under the first paragraph, for example, if an arrangement is being worked out by creditors and the debtor out of court, there is no prejudice to the rights of creditors in that arrangement, and an involuntary case has been commenced by a few recalcitrant creditors to provide a basis for future threats to extract full payment. The less expensive out-of-court workout may better serve the interests in the case. Likewise, if there is pending a foreign proceeding concerning the debtor and the factors specified in proposed 11 U.S.C. 304[c] warrant dismissal or suspension, the court may so act. H.R.Rep.No.95-595, 95th Cong., 1st Sess. 325 (1977); S.Rep.No.95-989, 95th Cong., 2d Sess. 35 (1978), U.S.Code Cong. & Admin. News 1978, pp. 5787, 6281. See also Gaff-ney, Bankruptcy Petitions Filed in Bad Faith, 12 U.C.C.L.J. 205, 238-39 (1980). Similarly, § 1112[b] enumerates nine causes that may trigger conversion or dismissal of a Chapter 11 case. Though said causes are non-exclusive, all, however, are predicated on the existence of creditors and an estate, with none going to the threshold question of the existence vel non of creditors. In accordance with prevailing deci-sional law, supra, together with express statutory authorization, Bankruptcy Reform Act § 105[a][3], 11 U.S.C. § 105[a]; Bankruptcy Reform Act § 1481, 28 U.S.C. § 1481 (Supp.1980), as applied by Bankruptcy Reform Act, Pub.L. No. 95-598, § 405[a][l], 92 Stat. 2549, with respect to the instant proceeding, this Court reaffirms" }, { "docid": "6388914", "title": "", "text": "staying the discharge they would have a “firm basis” on which to return to the bankruptcy court and ask for a revocation under section 15. In effect, appellants are asking us to issue an advisory opinion, something we may not do. Furthermore, were we to reach the merits, it is unlikely our decision could affect the legal issue which appellants may raise in a revocation proceeding. Our review would be limited to the exercise of discretion by the district court in dissolving the stay, and would not meet the issues of “fraud” and appellants’ prior knowledge central to a revocation proceeding under section 15 of the Bankruptcy Act. Indeed, appellants were and remain free to seek revocation of the discharge without regard to any disposition of this appeal. Thus, appellants cannot use their claim of the availability of a revocation procedure to bootstrap themselves within the jurisdiction of this court notwithstanding their failure to appeal from the discharge. For the foregoing reasons, the appeal is dismissed as moot. . Since Cantwell filed his petition in bankruptcy prior to October 1, 1979, to the extent relevant here, the provisions of the Bankruptcy Act rather than the new Bankruptcy Code, 11 U.S.C. §§ 101 et seq., apply. Bankruptcy Reform Act of 1978, Pub.L.No. 95-598 § 403, 92 Stat. 2683. . Both the district court and this court refused to stay the district court’s order. At oral argument, appellants’ counsel informed us that the Supreme Court also refused to stay the order. . It should be noted that under the new Bankruptcy Code, the jurisdiction of the courts of appeals is apparently limited to review of final orders. See 28 U.S.C. § 1293 (Supp. III 1979). Section 1293 is effective April 1, 1984 pursuant to the Bankruptcy Reform Act of 1978, Pub. L.No. 95-598 § 402(b), 92 Stat. 2682. See generally 1 Collier on Bankruptcy ¶¶ 3.03[7][d][v], 3.03[7][e] (15th ed. 1980). . Appellants argue that this court may not consider these admitted facts since Cantwell’s discharge and the appellants’ failure to appeal from the discharge occurred after filing of the notice of appeal" }, { "docid": "22103620", "title": "", "text": "And we cannot say that it was improper or arbitrary for the Board to be influenced, in exercising that discretion, by its views as to congressional policy as manifested by the 1952 Act. Section 19 (c) does not state what standards are to guide the Attorney General in the exercise of his discretion. Surely it is not unreasonable for him to take cognizance of present-day conditions and congressional attitudes, any more than it would be arbitrary for a judge, in sentencing a criminal, to refuse to suspend sentence because contemporary opinion, as exemplified in recent statutes, has increased in rigour as to the offense involved. This conclusion is fortified by the fact that § 19 (c) provides for close congressional supervision over suspensions of deportation. In every case where suspension for more than six months is granted a report must be submitted to Congress, and if thereafter Congress does not pass a concurrent resolution approving the suspension of deportation, the alien must then be deported. In other words, every such suspension must be approved by Congress, and yet petitioners would have us hold that the Attorney General may not take into account the current policies of Congress in exercising his discretion. This we cannot do. There being no error, the judgment is affirmed. Affirmed. MR. Justice Whittaker took no part in the consideration or decision of this case. Under certain conditions alien crewmen are permitted to enter the United States for periods not exceeding 29 days. See 8 U. S. C. §§ 1281-1287. 8 U. S. C. (1946 ed., Supp. V) § 155 (c). Section 244 of the 1952 Act, 8 U. S. C. § 1254 (a), provides, in pertinent part: “As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation ... in the case of an alien who— “(5) . . . has been physically present in the United States for a continuous period of not less than ten years . . . and proves that during all of such period he has been and is a person of good moral character ; has" }, { "docid": "22663593", "title": "", "text": "General’s discretion reviewed in a judicial forum. Rather, he contests the Attorney General’s conclusion that, as a matter of statutory interpretation, he is not eligible for discretionary relief. Id. at 298, 121 S.Ct. 2271 (emphases added); see also id. at 307, 121 S.Ct. 2271 (noting the traditional “distinction between eligibility for discretionary relief, on the one hand, and the favorable exercise of discretion, on the other hand”). In Accar-di, the Court emphasized that it was not “reviewing and reversing the manner in which discretion was exercised,” stating that any such review would have required “discussing the evidence in the record supporting or undermining the alien’s claim to discretionary relief.” Accardi, 347 U.S. at 268, 74 S.Ct. 499. Rather, the applicant there raised a renewable claim because he had challenged the BIA’s “alleged failure to exercise its own discretion, contrary to existing valid regulations.” Id. (emphasis added). In another habeas corpus case on which St. Cyr relied, United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957), the BIA denied petitioners’ request for relief under the Immigration Act of 1917 as a matter of administrative discretion, but also said “[i]t is crystal clear that Congress intended to greatly restrict the granting of suspension of deportation by the change of phraseology which was used in Section 244(a) of the Immigration and Nationality Act [of 1952] as well as the Congressional comment at the time this provision was enacted.” Id. at 76, 77 S.Ct. 618 (alteration in original). The Supreme Court, upon habeas review, considered the petitioners’ argument that the BIA “abused its discretion in denying their application for suspension of deportation” and “applied an improper standard when exercising its discretion” by taking into account the congressional policy underlying a “concededly inapplicable” statute. Id. at 78, 77 S.Ct. 618 (emphases added). Because the petition for review raised questions of law, i.e., abuse of discretion and an argument about the standard of law applied by the BIA in its exercise of discretion, the Supreme Court exercised jurisdiction over the petition, notwithstanding that the decision being challenged was" }, { "docid": "22663594", "title": "", "text": "denied petitioners’ request for relief under the Immigration Act of 1917 as a matter of administrative discretion, but also said “[i]t is crystal clear that Congress intended to greatly restrict the granting of suspension of deportation by the change of phraseology which was used in Section 244(a) of the Immigration and Nationality Act [of 1952] as well as the Congressional comment at the time this provision was enacted.” Id. at 76, 77 S.Ct. 618 (alteration in original). The Supreme Court, upon habeas review, considered the petitioners’ argument that the BIA “abused its discretion in denying their application for suspension of deportation” and “applied an improper standard when exercising its discretion” by taking into account the congressional policy underlying a “concededly inapplicable” statute. Id. at 78, 77 S.Ct. 618 (emphases added). Because the petition for review raised questions of law, i.e., abuse of discretion and an argument about the standard of law applied by the BIA in its exercise of discretion, the Supreme Court exercised jurisdiction over the petition, notwithstanding that the decision being challenged was one within the Attorney General’s discretion. Having exercised jurisdiction, the Court rejected the claim because “the reasons relied on by the Hearing Office and the Board ... were neither capricious nor arbitrary” and “we cannot say that it was improper or arbitrary for the Board to be influenced, in exercising that discretion, by its views as to congressional policy.” Id. at 77-78, 77 S.Ct. 618. In deciding this case, we need not determine the precise outer limits of the term “questions of law” under the REAL ID Act, nor need we define the full extent of “those issues that were historically reviewable on habeas,” H.R.Rep. No. 109-72, at 175, U.S. Code Cong. & Admin. News 2005, at p. 300, or what the Suspension Clause itself requires on direct, non-habe-as review of a removal order, see St. Cyr, 533 U.S. at 301 n. 13, 121 S.Ct. 2271. Rather, it is enough for us to hold simply that, although the REAL ID Act restores our jurisdiction to review “constitutional claims or questions of law,” 8 U.S.C. §" }, { "docid": "22055424", "title": "", "text": "Procedure] prescribed under section 2075 of title 28 of the United States Code and in effect on September 30,1979, shall apply to cases under title 11, to the extent not inconsistent with the amendments made by this Act, or with this Act, until such rules are repealed or superseded by rules prescribed and effective under such section, as amended by section 248 of this Act.” 92 Stat. 2685, note preceding 28 U. S. C. § 1471 (1976 ed., Supp. III). Although this provision describes the Rules’ effect on cases filed under the New Code, and thus does not directly apply to Geiger’s first petition which was filed under the Bankruptcy Act, it clearly demonstrates Congress’ intent that the old Bankruptcy Rules not override provisions of the New Code. Section 403(a) does apply to Geiger’s original petition, and the Court of Appeals erroneously relied upon Rule ll-42(a) to override its clear command. Justice Stevens, with whom Justice Marshall joins, dissenting. If a bankruptcy judge, with the consent of all parties to a proceeding commenced prior to October 1, 1979, correctly concluded that the best interest of the estate and all its creditors and the judiciary would be served by permitting the voluntary dismissal of that proceeding and the immediate commencement of a new proceeding under the New Code, would that action be prohibited by § 403(a) of the Bankruptcy Reform Act of 1978, Pub. L. 95-598, 92 Stat. 2683, note preceding 11 U. S. C. § 101 (1976 ed., Supp. IV)? I think not. Although two creditors objected to the dismissal in this case, the Court today leaves no doubt about its answer to this question. Despite its recognition that “the Court of Appeals may have reached a practical result,” ante, this page, and that “consolidation of Geiger’s petition with those of its subsidiaries and affiliates would serve the best interests of the estate [and] would conserve judicial resources,” ante, at 359, the Court holds that Congress expressly forbade such a result when it enacted § 403(a). It seems most unlikely that Congress would have commanded the result the Court reaches" }, { "docid": "14863168", "title": "", "text": "contributes his services; this may be inconsistent with the Code’s new provision. See 3 Collier on Bankruptcy, ¶ 504.01 (15th ed. 1982). We need not intimate at this time the appropriate sanction, if indeed a statutory violation has occurred. Conclusion For the reasons stated, we VACATE the bankruptcy court’s denial of compensation to the attorney, as based upon the trial court’s perception that it had no discretion at law to enter a nunc pro tunc order retroactively approving the employment of the attorney to represent the debtor in possession. We REMAND to the bankruptcy court, for it to determine in the exercise of its sound discretion (if appropriate showing is made as required by section 327(a) of the Code, 11 U.S.C. § 327(a) and Interim Rule 2006) whether to enter such an order and, if it does so determine, to award such compensation as within its sound discretion it deems appropriate. VACATED AND REMANDED. . Pub.L. 95-598, Title I, § 101 et seq., Nov. 6, 1978, 92 Stat. 2549. The code codified and enacted the law relating to bankruptcy as new Title 11, entitled “Bankruptcy”. Section 401(a) repealed the Bankruptcy Act of July 1, 1898, c. 541, 30 stat. 544, which comprised former Title 11. The former Bankruptcy Act of 1898, as amended (in important respects by the Chandler Act of 1938), will be referred to hereinafter as the “Bankruptcy Act” as distinguished from the 1978 “Bankruptcy Code”, with reference to “former” 11 U.S.C. section designations of the former Act. The Bankruptcy Code’s provisions at issue in the present appeal became effective on October 1, 1979. Section 402(a). The present petition for reorganization under Chapter 11 of the Code, §§ 1101 et seq., 11 U.S.C. §§ 1101 et seq., was filed on June 30, 1980. Some of counsel’s confusion as to applicable provisions seems to have arisen from unfamiliarity with the provisions of the newly enacted Code. . Section 327 (“Employment of professional persons”) pertinently provides: (a) Except as otherwise provided in this section, the trustee, with the court’s approval may employ one or more attorneys, accountants, appraisers, auctioneers, or" }, { "docid": "1081233", "title": "", "text": "inviolable, but subject to congressional power to regulate bankruptcies. CONCLUSION On balance, in these cases, it cannot be maintained that there exist substantive rights protected under the due process clause, which outweigh the congressional prerogative to regulate bankruptcies as expressed in Section 522(f). The Constitution, at most, requires a rational connection between Section 522(f) and the purpose for which it is enacted. The law meets this test: Congress researched, identified, and made findings concerning what in its view were evils in the credit industry; Section 522(f) is drafted and delimited to meet these evils. Given the presumption of constitutionality afforded legislation of this type, it would be inappropriate to conclude that a rational relationship between Section 522(f) and the elimination of these evils does not exist. Moreover, the tradition of lien avoidance to implement the policies of bankruptcy, such as equality among creditors, or in this instance, debtor rehabilitation suggests no irreconcilable conflict with the Fifth Amendment. For these reasons, Section 522(f) is constitutional. The motions to dismiss are denied. . 11. U.S.C. Section 522(f)(2) provides: (f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (2) a nonpossessory, nonpurchase-money security interest in any (A) household furnishings, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor; (B) implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor; or (C) professionally prescribed health aids for the debtor. . The Code, as used in this opinion, refers to the Bankruptcy Reform Act of 1978, codified at 11 U.S.C. Sections 101 et seq., Pub.L.No. 95-598, 92 Stat. 2549 (1978). The Code was enacted on November 6, 1978 and became effective on October 1, 1979. According to the allegations of the" }, { "docid": "375652", "title": "", "text": "in Congress. There the uniform practice was a provable fact. It is not such when, as here, the alleged uniform practice relates to the appraisement of the moral reformation of convicted deportees. Order affirmed. . This statute was repealed by the Immigration and Nationality Act of June 27, 1952, effective 180 days thereafter, and the provisions as to discretionary suspension of deportation were replaced by section 241 of the 1952 Act, 8 U.S.C.A. § 1254. However, the “savings clauses” of the later Act kept the earlier statute alive for pending proceedings, and provided that “An application Cor suspension of deportation under section 19 of the Immigration Act of 1917, as amended * * * which is pending on the date of enactment of this Act shall be regarded as a proceeding within^the meaning of this subsection.” 8 U.S.C.A. § 1101 note. P.L. 414, § 405(a), 66 Stat. 280. The appellant’s application was pending until the Board of Immigration Appeals rendered its decision on April 3, 1953. . Judge Noonan’s memorandum decision reads: “A review of the record as a whole, fails to demonstrate that there was present a clear abuse of discretion or clear failure to exercise discretion, Absent either element this court cannot review the exercise of discretion by the Board of Immigration Appeals. (United States ex rel. Adel v. Shaughnossy [2 Cir.], 183 F.2d 371.)” . The appellant's brief on the present apPea^ admits that dismissal of the first wrlt was correct:- . Salinger v. LoiseI 265 U.S. 224, 230, 44 S.Ct. 519, 68 L.Ed. 989; United States ex rel. McCann v. Thompson, 2 Cir., 144 F.2d 604, 606, 156 A.L.R. 240, certiorari denied 323 U.S. 790, 65 S.Ct. 313, 89 L.Ed. 630. . Wong Doo v. United States, 265 U.S. 239, 241, 44 S.Ct. 524, 68 L.Ed. 999; United States ex rel. McCann v. Thompson, supra; United States ex rel. Karpathion v. Jordan, 7 Cir., 153 F.2d 810, certiorari denied 328 U.S. 868, 66 S.Ct. 1372, 90 L.Ed. 1639. . “9. That on April 6, 1945, favorable discretionary relief was' exercised herein in the form of .voluntary" }, { "docid": "17903864", "title": "", "text": "Nor should they have been, since no “congressionally authorized statute or controlling case precedent” of which we are aware affirmatively “demand[s]” a trustee to increase the size of an estate through fraudulent or negligent misrepresentations. Furthermore, our review of the answers to interrogatories and affidavits before the bankruptcy court convinces us that genuine issue of material fact remain concerning the trustee’s liability under Arizona law for the allegedly fraudulent and negligent misrepresentations. These issues could not properly have been determined on summary judgment. CONCLUSION The bankruptcy court must conduct fact-finding hearings to determine the factual matters that are predicate to a proper determination of the legal issues presented. The legal issues must be decided consistent with the principles set forth in this opinion. The summary judgment is reversed. The case is remanded. . This case is governed by and all citations are to the Bankruptcy Act of 1898 (the “Bankruptcy Act”), ch. 541, 30 Stat. 544 (codified as amended at 11 U.S.C. §§ 1-1103 (1976)). While the Act was repealed by the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549, codified at 11 U.S.C. §§ 101-1330 (Supp. V 1981), the Act remains applicable to cases in which the original petition was filed prior to October 1, 1979, see Pub.L. No. 95-598, title IV, § 402(a), 92 Stat. 2682 (1978). . Perry’s contention on appeal that the bankruptcy court improperly allowed the Baldrian class to intervene because the class raised issues'outside the scope of the original complaint is meritless. The complaint filed by the Hall class sought to determine not only the “propriety, right and authority” of the trustee “to use, appropriate or disburse funds in his custody or under his control that comprised receipts from payments by lot purchasers” but also the liability of the trustee for “improper or unauthorized disbursements or appropriations of funds.” Since the claims of the Baldrian class clearly fall within the scope of the originally requested relief, the bankruptcy court did not abuse its discretion in allowing the Baldrian class to intervene for the relief it requested. See Bankr. Rule 724; Fed.R.Civ.P." }, { "docid": "16628336", "title": "", "text": "§ 105(a), as amended by Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, § 101, 92 Stat. 2549, 2555 (1978). As defined in section 404(a) of the same Act, federal district courts are included in the definition of bankruptcy courts. Id. § 404(a), 92 Stat. at 2683. The Local Rule, promulgated in an attempt to carry out congressional intent, would be clearly valid if based solely on this congressional grant of authority. The Order establishing the local rule was “necessary ... to carry out” the congressional intent expressed by the whole statutory scheme, and is an “appropriate” means of carrying out the expressed intent. Bankruptcy Rule 927, continued at least for the “interim period,” October 1, 1979, through March 31, 1984, see Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, §§ 402(b) & 404, 92 Stat. 2549, 2682-83 (1978), also authorizes adoption of local rules establishing court procedures. See also Ped.R.Civ.P. 83. The local rule adopted on December 21, 1982, would be, under this rule, a valid exercise of the Court’s power to control procedure in the trial court. Finally, section 2071 of Title 28 of the United States Code allows courts the discretion to enact the rules under which they will conduct their business. As under the other statutory grants of authority mentioned above, this Court recognizes it is not legislating a solution to the bankruptcy problem, but merely implementing congressional intent under specific grants of authority. B. Equitable Powers. Since the murky beginnings of English jurisprudence, the common law courts have sought to provide justice. More recently, Roscoe Pound observed that our law has been guided by the principle that “all legal institutions and all legal rules [are] ... measured by reason and ... nothing could stand in law that could not maintain itself in reason.” R. Pound, The Spirit of the Common Law 81. Pound concludes that the development of Law will be effected through a theory of “right and justice and [a] conscious attempt to make the law conform to ideals.” Id. at 84. The practical application of this Court’s attempts at justice, however, must be" }, { "docid": "1400712", "title": "", "text": "Zacharias require that we now order the Board to exercise its discretion in determining whether to suspend the deportation of petitioners without regard to the new and more severe standard adopted by Congress in the 1952 Act. Appendix The Board’s Second Opinion “These cases are before us on counsel’s motion to reopen the proceedings for reconsideration of the respondents’ applications for suspension of deportation. “The male respondent last entered the United States on August 15, 1951 and the female respondent on July 4, 1951. Both arrived as seamen and have been found deportable on the charge that they were immigrants at the time of entry and were not in possession of immigration visas. They have one child who was born in the United States during November 1951. On March 18, 1954, we dismissed the appeals of the respondents from the hearing officer’s decision granting voluntary departure and denying suspension of deportation. After considering all the facts in the case at that time, we denied suspension of deportation as a matter of administrative discretion. “Counsel’s motion sets forth no matters of which we were unaware at the time our previous decision was rendered. It is crystal clear that Congress intended to greatly restrict the granting of suspension of deportation by the change of phraseology which was used in Section 244(a) of the Immigration and Nationality Act as well as the Congressional comment at the time this provision was enacted. We indicated in our previous order that the deportation of the respondents would result in a serious economic detriment to their citizen minor child, and we do not question that the respondents have established the statutory requirements for suspension of deportation under Section 19(c) of the Immigration Act of 1917, as amended. “Counsel argues that the two court decisions cited in our previous order involved grounds for deportation specified in Section 19(d) of the Immigration Act of 1917, as amended. These cases were not within the purview of Section 19(d) although one alien had been convicted of incest and the other had been a member of the International Workers Order. Weddeke was" }, { "docid": "16628335", "title": "", "text": "Revoke Reference of Adversary Proceedings” page 14). On the contrary, the Court is not “creating” anything, but is instead relying on and making use of an entire structure created by Congress, which will remain in existence through March 31, 1984, and which is already being used for the adjudication of cases filed before October 1, 1979. Furthermore, the Court disagrees with the suggestion that such a local rule, by using the presently existing bankruptcy structure, is in any way an “innovation” beyond the Court’s local rule-making power. See Miner v. Atlass, 363 U.S. 641, 80 S.Ct. 1300, 4 L.Ed.2d 1462 (1960). III. The Court’s Statutory and Equitable Powers Having found an existing bankruptcy court structure, the Court will now address its authority to use this existing structure to adjudicate bankruptcy cases and proceedings. A. Statutory Authority. Title 11 of the United States Code, as amended by the Bankruptcy Reform Act of 1978, provides that the “bankruptcy court may issue any order ... necessary or appropriate to carry out the provisions of this title.” 11 U.S.C. § 105(a), as amended by Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, § 101, 92 Stat. 2549, 2555 (1978). As defined in section 404(a) of the same Act, federal district courts are included in the definition of bankruptcy courts. Id. § 404(a), 92 Stat. at 2683. The Local Rule, promulgated in an attempt to carry out congressional intent, would be clearly valid if based solely on this congressional grant of authority. The Order establishing the local rule was “necessary ... to carry out” the congressional intent expressed by the whole statutory scheme, and is an “appropriate” means of carrying out the expressed intent. Bankruptcy Rule 927, continued at least for the “interim period,” October 1, 1979, through March 31, 1984, see Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, §§ 402(b) & 404, 92 Stat. 2549, 2682-83 (1978), also authorizes adoption of local rules establishing court procedures. See also Ped.R.Civ.P. 83. The local rule adopted on December 21, 1982, would be, under this rule, a valid exercise of the Court’s power to control procedure" }, { "docid": "22055414", "title": "", "text": "Per Curiam. On August 15, 1979, Geiger Enterprises, Inc. (Geiger), filed a petition in the United States District Court for the Western District of New York seeking relief under Chapter XI of the Bankruptcy Act of 1898 (formerly 11 U. S. C. § 701 et seq.) (Bankruptcy Act). Geiger continued operating its business as a debtor-in-possession, and numerous creditors filed claims, including a claim by the United States for $2,075,674.64 in unpaid taxes. Respondent Official Creditors’ Committee was established by the Bankruptcy Court to represent the interests of creditors with relatively small claims. On October 1, 1979, the Bankruptcy Reform Act of 1978, Pub. L. 95-598, 92 Stat. 2549, 11 U. S. C. § 101 et seq. (1976 ed., Supp. IV) (New Code), became effective. Thereafter, several of Geiger’s wholly owned subsidiaries and affiliate corporations filed petitions for relief under Chapter 11 of the New Code. On January 9, 1980, Geiger moved to dismiss its Chapter XI petition on the representation that if dismissal were granted it too would immediately file a petition under Chapter 11 of the New Code and would seek substantive consolidation of its proceedings with the proceedings of its subsidiary and affiliate corporations. This motion was opposed by petitioner, a secured creditor, and by the United States. Both opponents argued that such dismissal was prohibited by § 403(a) of the New Code, a transitional rule enacted by Congress to govern cases pending under the Bankruptcy Act on the effective day of the New Code. Section 403(a) provides: “A case commenced under the Bankruptcy Act, and all matters and proceedings in or relating to any such case, shall be conducted and determined under such Act as if [the New Code] had not been enacted, and the substantive rights of parties in connection with any such bankruptcy case, matter, or proceeding shall continue to be governed by the law applicable to such case, matter, or proceeding as if the [New Code] had not been enacted.” 92 Stat. 2683, note preceding 11 U. S. C. § 101 (1976 ed., Supp. IV). The Bankruptcy Court rejected this argument and granted" } ]

[ { "docid": "10502494", "title": "", "text": "& Smith, Inc., 298 F.Supp. 479, 480 (W.D.Okl.1969); Hooker Chemicals v. Diamond Shamrock Corp., 87 F.R.D. 398, 401-04 (W.D.N.Y.1980). While it has been said that the “first to file” rule “should not be disregarded lightly”, Church of Scientology v. U.S. Dep’t. of the Army, 611 F.2d 738, 750 (9th Cir.1979), district courts can, in the exercise of their discretion, dispense with the first-filed principle for reasons of equity. The circumstances under which an exception to the “first to file” rule typically will be made include bad faith (citation omitted), anticipatory suits, and forum shopping (citations omitted).” Alltrade, supra, 946 F.2d at 628. Generally a suit is anticipatory when the plaintiff filed its suit upon receipt of specific, concrete indications that a suit by the defendant was imminent. For instance, in Amerada Petroleum Corp. v. Marshall, 381 F.2d 661 (5th Cir.1967), plaintiff filed a declaratory action following receipt of defendant’s letter stating that, if plaintiff did not voluntarily submit to jurisdiction in one forum, defendant would sue in a forum in which defendant clearly had jurisdiction. The court found that plaintiffs declaratory judgement action was an anticipatory suit, having been “filed by Amerada as the immediate result of the letter inviting it to appear”. Amerada, supra, 381 F.2d at 663. A court may also relax the “first to file” rule if the balance of convenience weighs in favor of the later-filed action. While the Alltrade court cautioned that the respective convenience of the two courts normally “should be addressed to the court in the first filed action” rather than to the court in the later-filed action, Alltrade, supra, 946 F.2d at 628, it observed that “[i]n appropriate cases it would be relevant for the court in the second-filed action to give consideration to the convenience of the parties and witnesses.” Id. III. ANALYSIS This court must first address whether Follett has met the threshold requirements for application of the “first to file” rule. It is undisputed that Follett filed its original complaint in Illinois on January 20, 1994, nearly two months before Ward filed its California complaint on March 4, 1994." } ]

[ { "docid": "8768132", "title": "", "text": "recognized doctrine of federal comity which permits a district court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district.” Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94—95 (9th Cir.1982) (quoting Church of Scientology of California v. United States Dep’t of the Army, 611 F.2d 738, 749 (9th Cir.1979)); see also Z-Line Designs, Inc. v. Bell’O Int’l, LLC, 218 F.R.D. 663 (N.D.Cal.2003) (Whyte, J.); MP3Board v. Recording Indus. Assoc. of Am., Inc., No. C-00-20606, 2001 WL 804502 (N.D.Cal. Feb. 27, 2001) (Whyte, J.). The “sameness” requirement does not mandate that the two actions be identical, but is satisfied if they are “substantially similar.” Dumas v. Major League Baseball Properties, Inc., 52 F.Supp.2d 1183 (S.D.Cal. May 14, 1999), vacated on other grounds by, 104 F.Supp.2d 1224 (S.D.Cal. June 21, 2000), aff'd, 300 F.3d 1083 (9th Cir.2002). See also British Telecomm, v. McDonnell Douglas Corp., No. C-93-0677, 1993 WL 149860 at *4 (N.D.Cal. May 3, 1993) (Patel, J.) (finding that Alltrade “does not stand for a blanket rule that there must be strict identity of parties for the first-to-file rule to apply.”). The purpose of this well-established rule is to promote efficiency and to avoid duplicative litigation and thus it should not be lightly disregarded. Alltrade, Inc. v. Uniweld Prod., Inc., 946 F.2d 622, 625 (9th Cir.1991). Under the doctrine, a district court may transfer, stay or dismiss the second action if it determines that it would be in the interest of judicial economy and convenience of the parties. Pacesetter, 678 F.2d at 95. The pre-requisites for application of the doctrine are chronology and identity of the parties and issues involved. Alltrade, 946 F.2d at 625. In its discretion, the district court may depart from the rule for reasons of equity, when the filing of the first suit evidences bad faith, anticipatory suit, or forum shopping. Id. at 628. The anticipatory suit exception is rooted in a concern that a plaintiff should not be “deprived of its traditional choice of forum because a defendant with notice of an" }, { "docid": "8768134", "title": "", "text": "impending suit first files a declaratory relief action over the same issue in another forum.” British Telecomm., 1993 WL 149860 at *3. In order for a court to find that the initial suit was anticipatory, the plaintiff in the first action must have been in receipt of “specific, concrete indications that a suit by defendant was imminent.” Ward v. Follett Corp., 158 F.R.D. 645, 648 (N.D.Cal.1994) (Whyte, J.) (citing Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967) (where the court found the filing of a declaratory action by plaintiff anticipatory when it followed receipt of defendant’s letter stating that defendant would sue plaintiff in another forum where it could properly serve plaintiff, if plaintiff did not voluntarily submit to jurisdiction in the current forum)); see also Bryant v. Oxxford Express, Inc., 181 F.Supp.2d 1045, 1048-9 (C.D.Cal.2000) (finding that the receipt of a letter declaring that plaintiff was in breach did not render the suit filed “anticipatory” because it did not indicate that a lawsuit was imminent and plaintiff already had a pre-existing motive for going to court); Guthy-Renker Fitness, LLC v. Icon Health & Fitness, Inc., et al., 179 F.R.D. 264 (C.D.Cal.1998) (letter informing plaintiff about possible patent infringements did not threaten litigation and thus declaratory action filed was not anticipatory). II. Motion to Transfer Pursuant to 28 U.S.C. section 1404(a), a district court may transfer a civil action “for the convenience of parties and witnesses [and] in the interest of justice ... to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a); Straus Family Creamery v. Lyons, 219 F.Supp.2d 1046, 1047 (N.D.Cal.2002) (Zimmerman, J.). A motion to transfer venue lies within the broad discretion of the district court, and must be determined on an individualized basis. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir.) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)), cert. denied, 531 U.S. 928, 121 S.Ct. 307, 148 L.Ed.2d 246 (2000). The burden of showing that transfer is appropriate is on the moving party." }, { "docid": "5672283", "title": "", "text": "purposes of declaratory acts would be aborted by its use as an instrument of procedural fencing either to secure delay or to choose a forum.’ ” Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 n. 3 (5th Cir.1983), quoted in part, in Alltrade, 946 F.2d at 628. “A suit is ‘anticipatory’ for the purposes of being an exception to the first-to-file rule if the plaintiff in the fírst-fíled action filed suit on receipt of specific, concrete indications that a suit by the defendant was imminent.” Guthy-Renker Fitness, L.L. C. v. Icon Health & Fitness, Inc., 179 F.R.D. 264, 271 (C.D.Cal.1998); see Manuel, 430 F.3d at 1136-37; E.E. O.C. v. Univ. of Pa., 850 F.2d 969, 972-74 (3rd Cir.1988) (subpoena issued from one district, and issuer agree to wait 30 days to enforce it, during which, served party challenged it in another district), aff'd on other grounds, 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990); Mission Ins. Co., 706 F.2d 599, 600, 602-03 (carrier told insured, facing policy deadline for suit, to hold suit until carrier provide written opinion regarding dispute, but instead ran to court and sued insured); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 662-64 (5th Cir.1967) (on receipt of letter indicating plaintiff would sue in one district, unless recipient waived personal jurisdiction in another, recipient immediately sued sender). But, “a letter which suggests the possibility of legal action, however, in order to encourage or further a dialogue, is not a specific, imminent threat of legal action.” Guthy-Renker Fitness, L.L. C., 179 F.R.D. at 271; Ward, 158 F.R.D. at 648. Likewise, “a reasonable apprehension that a controversy exist[s] sufficient to satisfy the constitutional requirements for a declaratory judgment action ... is not equivalent to an imminent threat of litiga tion.” Manuel, 430 F.3d at 1137. Because “a declaratory action is an appropriate vehicle to ‘alleviate the necessity of waiting indefinitely for a [trademark] owner to file an infringement action.’ ” Guthy-Renker Fitness, L.L.C., 179 F.R.D. at 272. In this case, as defendant notes, plaintiffs counsels’ December 2006 letter said if plaintiff did not" }, { "docid": "22932832", "title": "", "text": "courts simply apply the same general factors that are considered in a motion to transfer under 28 U.S.C. § 1404(a). See, e.g., Nat’l Patent Dev. Corp. v. Am. Hosp. Supply Corp., 616 F.Supp. 114, 118 (S.D.N.Y.1984) (“Essentially the same factors that are of significance on a motion to stay a ‘second-filed’ action come into play on a motion to transfer under [28 U.S.C.] section 1404(a).”). Where two actions involving overlapping issues and parties are pending in two federal courts, there is a strong presumption across the federal circuits that favors the forum of the first-filed suit under the first-filed rule. See, e.g., United States Fire Ins. Co. v. Goodyear Tire & Rubber Co., 920 F.2d 487, 488 (8th Cir. 1990) (describing the first-filed rule as “well-established”); Church of Scientology of Cal. v. United States Dep’t of Defense, 611 F.2d 738, 750 (9th Cir.1979) (noting that the first-filed rule “should not be disregarded lightly”). We are no exception. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 675 F.2d 1169, 1174 (11th Cir.1982). Moreover, we require that the party objecting to jurisdiction in the first-filed forum carry the burden of proving “compelling circumstances” to warrant an exception to the first-filed rule. Id. In determining whether compelling circumstances exist, we have recognized that for declaratory judgment actions “one equitable consideration ... is whether the ... action was filed in apparent anticipation of the other pending proceeding.” Ven-Fuel, Inc. v. Dep’t of the Treasury, 673 F.2d 1194, 1195 (11th Cir.1982); see also Amerada Petroleum, 381 F.2d at 663 (noting that filing a declaratory judgment action in anticipation of suit in another forum “is an equitable consideration which the district court was entitled to take into account”). Even if a court finds that a filing is anticipatory, this consideration does not transmogrify into an obligatory rule mandating dismissal. See Ven-Fuel, 673 F.2d at 1195. Such a finding still remains one equitable factor among many that a district court can consider in deter mining whether to hear a declaratory judgment action. See id,.; see also Wilton, 515 U.S. at 286, 115 S.Ct. at 2142." }, { "docid": "18234557", "title": "", "text": "FMC has made a credible showing that AMVAC engaged in behavior that establishes each of the exceptions allowing a district court to refuse to adhere to a wooden interpretation and application of the first-to-file rule, namely, inequitable conduct, bad faith, anticipatory filing, forum shopping and/or forum avoidance. Therefore, the Court denies the AMVAC Motion and retains jurisdiction of the instant matter. II. STANDARD OF REVIEW — THE FIRST-TO-FILE RULE The first-to-file rule is used to dismiss or stay a later-filed action. Traditionally, where there are parallel proceedings in different federal courts, the first court in which jurisdiction attaches has priority to consider the case. “ ‘In all cases of [federal] concurrent jurisdiction, the court which first has possession of the subject must decide it.’ ” Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 929 (3d Cir.1941), cert. denied, 315 U.S. 813, 62 S.Ct. 798, 86 L.Ed. 1211 (1942), quoting Smith v. McIver, 22 U.S. 532, 535, 9 Wheat. 532, 6 L.Ed. 152 (1824). “The party who first brings a controversy into a court of competent jurisdiction for adjudication should, so far as our dual system permits, be free from the vexation of subsequent litigation over the same subject matter.” Id. at 930. The United States Supreme Court, the Court of Appeals for the Third Circuit, and the Court of Appeals for the Ninth Circuit have each recognized and followed the first-to-file rule where there are two competing district court actions. See Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200 (1952) (affirming a Third Circuit Court of Appeals decision to stay second-filed action in favor of earlier-filed action); Crosley Corp. v. Westinghouse Elec. & Mfg. Co., 130 F.2d 474, 475 (3d Cir.), cert. denied, 317 U.S. 681, 63 S.Ct. 202, 87 L.Ed. 546 (1942) (reversing district court decision not to enjoin second-filed suit; Hdzeltine, 122 F.2d at 930-31) (ordering district court to enjoin second-filed patent infringement action in favor of first-filed declaratory judgment action); Triangle Conduit & Cable Co. v. Nat’l Elec. Prods. Corp., 125 F.2d 1008 (3d Cir.), cert. denied, 316" }, { "docid": "6423852", "title": "", "text": "progressed further, efficiency considerations disfavor application of the rule. Church of Scientology, 611 F.2d at 750. Other circumstances under which an exception to the first-to-file rule will be made include bad faith and anticipatory suit filed for the purpose of forum shopping. Alltrade, Inc., 946 F.2d at 628. A court may also relax the first-to-file rule if “the balance of convenience weighs in favor of the later-filed action.” Ward, 158 F.R.D. at 648. In the present action, Precor contends departure from the first-to-file rule is warranted based on the anticipatory filing of Plaintiff’s Complaint. (Mot. at 4.) Precor additionally asserts that convenience and ac cess to proof, calendar congestion, and the interests of justice favor transfer. (Mot. at 8, 10, 12.) In opposition, Plaintiff contends its Complaint was not filed in anticipation of litigation and that convenience does not favor transfer to the Western District of Washington. (Opp’n at 10, 14.) Moreover, Plaintiff argues that the action cannot be transferred to Washington since the forum lacks personal jurisdiction over Plaintiff. Since the Court finds transfer inappropriate on the circumstances presented, it need not decide Plaintiffs personal jurisdiction argument. 1. The Anticipatory Nature of Plaintiffs Complaint A suit is “anticipatory” for the purposes of being an exception to the first-to-file rule if the plaintiff in the first-filed action filed suit on receipt of specific, concrete indications that a suit by the defendant was imminent. Ward, 158 F.R.D. at 648. Such anticipatory suits are disfavored because they are examples of forum shopping. Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 n. 3 (5th Cir.1983). As such, by recognizing this exception to the first-to-file rule, courts seek to eliminate the race to the courthouse door in an attempt to preempt a later suit in another forum. Northwest Airlines v. American Airlines, 989 F.2d 1002,1007 (8th Cir.1993). Here, Precor contends that Plaintiffs Complaint was an obvious attempt to preserve this forum’s jurisdiction by filing suit first after receiving Precor’s letter intimating potential patent infringements. (Reply at 2.) Precor additionally asserts that the declaratory nature of Plaintiffs action is further indicia an" }, { "docid": "22240433", "title": "", "text": "in the hope of fortifying Uniweld’s first-to-file claim. In addition, Alltrade argues that California is a more convenient forum than Florida because, heavily present in the former state, its offices, employees, and business records are virtually absent from the latter. Insofar as Uniweld also has significant ties to California, appellant argues that, on balance, it would make sense to overlook the first-to-file rule in this case. As for the presence of an additional party in the Florida action, Alltrade dismisses it both as another one of Uniweld’s subterfuges and as essentially irrelevant in light of the insignificance of appellee’s claims against Foreign and American. We recognize that “[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation, does not coun sel rigid mechanical solution of such problems.” Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952); see also Pacesetter, 678 F.2d at 95; Church of Scientology, 611 F.2d at 750; Codex Corp. v. Milgo Elect. Corp., 553 F.2d 735, 737 (1st Cir.), cert. denied, 434 U.S. 860, 98 S.Ct. 185, 54 L.Ed.2d 133 (1977). The circumstances under which an exception to the first-to-file rule typically will be made include bad faith, see Crosley Corp. v. Westinghouse Elec. & Mfg. Co., 130 F.2d 474, 476 (3d Cir.), cert. denied, 317 U.S. 681, 63 S.Ct. 202, 87 L.Ed. 546 (1942); anticipatory suit, and forum shopping, see Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 n. 3 (5th Cir.1983) (“Anticipatory suits are disfavored because they are aspects of forum-shopping”); Factors, Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 217, 219 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979); Mattel, Inc. v. Louis Marx & Co., 353 F.2d 421, 424 n. 4 (2d Cir.), cert. dismissed, 384 U.S. 948, 86 S.Ct. 1475, 16 L.Ed.2d 546 (1965). However, notwithstanding the fact that Alltrade has raised serious questions concerning Uniweld’s conduct, it has summoned the wrong precedents and addressed itself to the wrong court. The most basic aspect of the" }, { "docid": "10829167", "title": "", "text": "“[c]ircumstances and modern judicial reality, however, may demand that we follow a different approach from time to time.” Church of Scientology, 611 F.2d at 750; see also William W. Schwarzer, et al., California Practice Guide; Federal Civil Procedure Before Trial § 2:1329, 15 at 2E-63 (2005). That is, the Court may, in its discretion, rely on equitable grounds, such as “when the filing of the first suit evidences bad faith, anticipatory suit, or forum shopping,” to determine whether to depart from the first to file rule. Inherent.com. 420 F.Supp.2d at 1097 (emphasis added); see also Alltrade, Inc., 946 F.2d at 628 (“The circumstances under which an exception to the first-to-file rule typically will be made include bad faith, anticipatory suit, and forum shopping.... [District court judges can, in the exercise of their discretion, dispense with the first-filed principle for reasons of equity.”) (citations omitted). Anticipatory suits are found when the “plaintiff in the first-filed action filed suit on receipt of specific, concrete indications that a suit by the defendant was imminent,” and are viewed with disfavor as examples of forum shopping and gamesmanship. Guthy-Renker Fitness, LLC v. Icon Health & Fitness, Inc., 179 F.R.D. 264, 271 (C.D.Cal.1998) (citing Ward v. Follett Corp., 158 F.R.D. 645, 648 (N.D.Cal.1994)). “In addition, where ... a declaratory judgment action has been triggered by a cease and desist letter” that both seeks settlement and notifies the party of the possibility of litigation upon collapse of negotiations, “equity militates in favor of allowing the second-filed action to proceed to judgment rather than the first.” Z-Line Designs, Inc. v. Bell’O Int’l LLC, 218 F.R.D. 663, 667 (N.D.Cal.2003). When a district court identifies any of the circumstances above, it may, in its discretion, dismiss the first-filed action. See id. B. Xoxide’s Declaratory Judgment Suit is Anticipatory and Warrants Dismissal The record outlined above, particularly the ongoing settlement discussions and dialogue between the parties, unambiguously establishes that the filing of Xoxide’s Complaint in this Court was anticipatory and a method of forum shopping. Such conduct commands the application of the exception to the first to file rule. Xoxide was" }, { "docid": "16317928", "title": "", "text": "in response to a letter that is indicative of negotiations. See, e.g., id. In J. Lyons, the sender’s demand letter mentioned “the possibility of legal actions” without specifying date or forum, and when the alleged infringer refused to cease and desist, the sender merely responded that it would take the refusal “under advisement.” Id. In this context, the declaratory action was not anticipatory as required in order to justify departure from the first-filed rule. BuddyUSA, Inc. v. Recording Indus. Ass’n of Am., Inc., 21 Fed.Appx. 52, 55-56, 2001 WL 1220548 at *2-3 (2d Cir.2001) (emphasis added). Compare, e.g., National Union Fire Ins. Co. v. International Wire Group, Inc., 02 Civ. 10338, 2003 WL 21277114 at *6 (S.D.N.Y. June 2, 2003) (first filed suit dismissed as “anticipatory” where brought after receipt of letter clearly announcing other party’s intention to bring suit in Texas); Chicago Ins. Co. v. Holzer, 00 Civ. 1062, 2000 WL 777907 at *1, 4 (S.D.N.Y. June 16, 2000) (specific warning requirement was met by letter stating that if recipient’s decision “ ‘remains unaltered, we will commence suit in a court of appropriate jurisdiction in forty eight (48) \"hours’ ”); Mondo, Inc. v. Spitz, 97 Civ. 4822, 1998 WL 17744 at *1-2 (S.D.N.Y. Jan. 16, 1998) (Declaratory judgment action filed after receipt of a letter stating the sender’s “intention to file suit in California if settlement negotiations were not fruitful” was anticipatory filing.); Federal Ins. Co. v. May Dep’t Stores Co., 808 F.Supp. 347, 350 (S.D.N.Y.1992) (Declaratory judgment action found to be anticipatory when filed after receipt of letter stating that if sender’s claim was not satisfied by a specific date, defendant would sue.); with, e.g., J. Lyons & Co. v. Republic of Tea, Inc., 892 F.Supp. 486, 491 (S.D.N.Y.1995) (“When a notice letter informs a defendant of the intention to file suit, a filing date, and/or a specific forum for the filing of the suit, the courts have found, in the exercise of discretion, in favor of the second-filed action.” Here, second-filed S.D.N.Y. action dismissed in favor of first-filed declaratory judgment action where cease and desist letter mentioned" }, { "docid": "22932831", "title": "", "text": "132 L.Ed.2d 214 (1995); Old Republic Union Ins. Co. v. Tillis Trucking Co., 124 F.3d 1258, 1260 (11th Cir.1997). The Supreme Court has described this discretion as “unique and substantial.” Wilton, 515 U.S. at 286, 115 S.Ct. at 2142. “As we have stated previously, the abuse of discretion standard allows a range of choice for the district court, so long as that choice does not constitute a clear error of judgment.” Rasbury v. IRS, 24 F.3d 159, 168 (11th Cir.1994) (internal quotations omitted). The factors relevant in deciding whether to hear a declaratory judgment action are equitable in nature. See Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952). As such, the Supreme Court has warned against a “rigid” and “mechanical” approach in applying the Federal Declaratory Judgments Act. Id. Our court has previously recognized convenience of the parties and the forum’s connection with the controversy as relevant, albeit nonexclusive, factors. See Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967). Some courts simply apply the same general factors that are considered in a motion to transfer under 28 U.S.C. § 1404(a). See, e.g., Nat’l Patent Dev. Corp. v. Am. Hosp. Supply Corp., 616 F.Supp. 114, 118 (S.D.N.Y.1984) (“Essentially the same factors that are of significance on a motion to stay a ‘second-filed’ action come into play on a motion to transfer under [28 U.S.C.] section 1404(a).”). Where two actions involving overlapping issues and parties are pending in two federal courts, there is a strong presumption across the federal circuits that favors the forum of the first-filed suit under the first-filed rule. See, e.g., United States Fire Ins. Co. v. Goodyear Tire & Rubber Co., 920 F.2d 487, 488 (8th Cir. 1990) (describing the first-filed rule as “well-established”); Church of Scientology of Cal. v. United States Dep’t of Defense, 611 F.2d 738, 750 (9th Cir.1979) (noting that the first-filed rule “should not be disregarded lightly”). We are no exception. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 675 F.2d 1169, 1174 (11th Cir.1982). Moreover, we" }, { "docid": "6423854", "title": "", "text": "anticipatory suit considering Plaintiff failed to serve its action until 87 days later. (Id.) a. Precor’s “Intent to Sue” Letter Filing a declaratory action after receipt of an intent to sue letter favors a finding that the first-filed suit was done for anticipatory, forum shopping purposes. See Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967). In Amerada, plaintiff received a letter requesting its voluntary appearance as a defendant in an action already filed in the District of Columbia. Id. Defendant’s letter further warned that if plaintiff did not so appear “suit would be brought against it in a jurisdiction where it was subject to service.” Id. at 662. On, appeal, the circuit court affirmed the district court’s determination that plaintiffs action was commenced “as the immediate result of the letter inviting it to appear in the District of Columbia.” Id. at 663. Likewise, Ward recognized the need for “specific, concrete indications that a suit by defendant was imminent [ ]” for a suit to be declared anticipatory. Ward, 158 F.R.D. at 648 (emphasis added). Here, Precor asserts that Plaintiffs declaratory action was brought pursuant to Precor’s October 2, 1997 “notice-of-suit” letter. (Reply at 4.) However, such a conclusion appears contrary to both the letter’s content and the Declaration of Precor’s President, William W. Potts. First, Precor’s letter expressly states that it was giving notice of the potential patent infringements in an attempt to avoid litigation. (Lowe Deck at Ex. 2.) The letter further provides a detailed description of the substantial experience Precor has in litigating its patents. (Id.) However, these statements at best amount to veiled threats of legal action against Plaintiff. Moreover, Precor’s own President states that it “did not threaten suit in its October 2,1997 letter.” (Potts Deck 116.) Potts further states that Precor “had no intention [oh or about October 2, 1997] of bringing additional suits against other competitors ____” (Id.) Rather, Precor was merely “encouraging further dialog to avoid the sale of infringing products necessitating legal action.” (Id.) Thus, Precor’s letter neither provided nor intended to provide Plaintiff with a specific, concrete indication" }, { "docid": "6423884", "title": "", "text": "the parties in Phillips Plastics because the parties never engaged in any form of negotiations. Therefore, Phillips Plastics does not control the present action. Finally, Precor additionally contends that the Court’s Order regarding anticipatory filing has already concluded that Precor’s correspondence could not have created a reason able apprehension of suit on the part of Plaintiff. (Mot. at 5.) However, Preeor misconstrues the language of the Court’s Order to support its position. As the Court recognized, Precor’s letter could not have created a reasonable apprehension of imminent suit in Plaintiff within the meaning of the decisions in Amerada and Ward. However, the standards for determining whether a declaratory plaintiff possessed a reasonable apprehension of suit under § 2201 are not coextensive with the inquiry set forth in Amerada and Ward for determining whether a case was anticipatorily filed. Both Amerada and Ward involved the determination of whether the declaratory plaintiffs action was commenced as a bad faith, anticipatory filing for purposes of disregarding the first-to-file rule. See Ward v. Follett Corp., 158 F.R.D. 645, 648 (N.D.Cal. 1994); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967). As recognized by the court in Ward, in order for a declaratory action to be filed in anticipation of litigation, there must be “specific, concrete indications that suit by the defendant was imminent.” Ward, 158 F.R.D. at 648 (emphasis added). In Amerada, the court concluded that such an imminent indication of suit was present where a defendant threatened to sue a declaratory plaintiff if the declaratory plaintiff did not appear as a defendant in an existing lawsuit. Amerada, 381 F.2d at 662-63. Accordingly, for purposes of setting aside the first-to-file rule, the defendant party must show that the declaratory plaintiffs action was filed as a forum shopping device in anticipation of imminent suit by the defendant. In contrast, § 2201 does not require the declaratory plaintiffs action to have been commenced in imminent apprehension of suit. Rather, as discussed above, § 2201 merely requires that the declaratory plaintiff commence the action in response to a reasonable apprehension of suit. See Phillips Plastics" }, { "docid": "6423853", "title": "", "text": "inappropriate on the circumstances presented, it need not decide Plaintiffs personal jurisdiction argument. 1. The Anticipatory Nature of Plaintiffs Complaint A suit is “anticipatory” for the purposes of being an exception to the first-to-file rule if the plaintiff in the first-filed action filed suit on receipt of specific, concrete indications that a suit by the defendant was imminent. Ward, 158 F.R.D. at 648. Such anticipatory suits are disfavored because they are examples of forum shopping. Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 n. 3 (5th Cir.1983). As such, by recognizing this exception to the first-to-file rule, courts seek to eliminate the race to the courthouse door in an attempt to preempt a later suit in another forum. Northwest Airlines v. American Airlines, 989 F.2d 1002,1007 (8th Cir.1993). Here, Precor contends that Plaintiffs Complaint was an obvious attempt to preserve this forum’s jurisdiction by filing suit first after receiving Precor’s letter intimating potential patent infringements. (Reply at 2.) Precor additionally asserts that the declaratory nature of Plaintiffs action is further indicia an anticipatory suit considering Plaintiff failed to serve its action until 87 days later. (Id.) a. Precor’s “Intent to Sue” Letter Filing a declaratory action after receipt of an intent to sue letter favors a finding that the first-filed suit was done for anticipatory, forum shopping purposes. See Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967). In Amerada, plaintiff received a letter requesting its voluntary appearance as a defendant in an action already filed in the District of Columbia. Id. Defendant’s letter further warned that if plaintiff did not so appear “suit would be brought against it in a jurisdiction where it was subject to service.” Id. at 662. On, appeal, the circuit court affirmed the district court’s determination that plaintiffs action was commenced “as the immediate result of the letter inviting it to appear in the District of Columbia.” Id. at 663. Likewise, Ward recognized the need for “specific, concrete indications that a suit by defendant was imminent [ ]” for a suit to be declared anticipatory. Ward, 158 F.R.D. at 648" }, { "docid": "5672282", "title": "", "text": "defendant violated some other law. See Cal. Bus. & Prof. Code § 17203. Although it is unclear what restitution plaintiff could seek here, this claim adds little to nothing to its pleadings, and thus, whether or not defendant can plead this in the New York Action, or desires to, is of no import. Dumas, 52 F.Supp.2d at 1193 (first-to-file rule was not barred just because both suits had RICO claims, but only one had a section 17200 claim). Thus, the New York Action and this matter are similar. IV. No exceptions apply here to remove this matter from the first-to-file rule. A. Defendant did not act in bad faith nor file an anticipatory suit. Plaintiff argues defendant’s filing for a declaratory judgment in the New York Action was an anticipatory suit, Opp’n at 7:5-8:28, 15:20-16:9, but the law in this area does not support its assertion. “Anticipatory suits are disfavored because they are an aspect of forum-shopping. As was stated in American Automobile Ins. Co. v. Freundt, 103 F.2d 613, 617 (7th Cir.1939): ‘The wholesome purposes of declaratory acts would be aborted by its use as an instrument of procedural fencing either to secure delay or to choose a forum.’ ” Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 n. 3 (5th Cir.1983), quoted in part, in Alltrade, 946 F.2d at 628. “A suit is ‘anticipatory’ for the purposes of being an exception to the first-to-file rule if the plaintiff in the fírst-fíled action filed suit on receipt of specific, concrete indications that a suit by the defendant was imminent.” Guthy-Renker Fitness, L.L. C. v. Icon Health & Fitness, Inc., 179 F.R.D. 264, 271 (C.D.Cal.1998); see Manuel, 430 F.3d at 1136-37; E.E. O.C. v. Univ. of Pa., 850 F.2d 969, 972-74 (3rd Cir.1988) (subpoena issued from one district, and issuer agree to wait 30 days to enforce it, during which, served party challenged it in another district), aff'd on other grounds, 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990); Mission Ins. Co., 706 F.2d 599, 600, 602-03 (carrier told insured, facing policy deadline for suit," }, { "docid": "8768133", "title": "", "text": "stand for a blanket rule that there must be strict identity of parties for the first-to-file rule to apply.”). The purpose of this well-established rule is to promote efficiency and to avoid duplicative litigation and thus it should not be lightly disregarded. Alltrade, Inc. v. Uniweld Prod., Inc., 946 F.2d 622, 625 (9th Cir.1991). Under the doctrine, a district court may transfer, stay or dismiss the second action if it determines that it would be in the interest of judicial economy and convenience of the parties. Pacesetter, 678 F.2d at 95. The pre-requisites for application of the doctrine are chronology and identity of the parties and issues involved. Alltrade, 946 F.2d at 625. In its discretion, the district court may depart from the rule for reasons of equity, when the filing of the first suit evidences bad faith, anticipatory suit, or forum shopping. Id. at 628. The anticipatory suit exception is rooted in a concern that a plaintiff should not be “deprived of its traditional choice of forum because a defendant with notice of an impending suit first files a declaratory relief action over the same issue in another forum.” British Telecomm., 1993 WL 149860 at *3. In order for a court to find that the initial suit was anticipatory, the plaintiff in the first action must have been in receipt of “specific, concrete indications that a suit by defendant was imminent.” Ward v. Follett Corp., 158 F.R.D. 645, 648 (N.D.Cal.1994) (Whyte, J.) (citing Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967) (where the court found the filing of a declaratory action by plaintiff anticipatory when it followed receipt of defendant’s letter stating that defendant would sue plaintiff in another forum where it could properly serve plaintiff, if plaintiff did not voluntarily submit to jurisdiction in the current forum)); see also Bryant v. Oxxford Express, Inc., 181 F.Supp.2d 1045, 1048-9 (C.D.Cal.2000) (finding that the receipt of a letter declaring that plaintiff was in breach did not render the suit filed “anticipatory” because it did not indicate that a lawsuit was imminent and plaintiff already had a pre-existing" }, { "docid": "6423885", "title": "", "text": "(N.D.Cal. 1994); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967). As recognized by the court in Ward, in order for a declaratory action to be filed in anticipation of litigation, there must be “specific, concrete indications that suit by the defendant was imminent.” Ward, 158 F.R.D. at 648 (emphasis added). In Amerada, the court concluded that such an imminent indication of suit was present where a defendant threatened to sue a declaratory plaintiff if the declaratory plaintiff did not appear as a defendant in an existing lawsuit. Amerada, 381 F.2d at 662-63. Accordingly, for purposes of setting aside the first-to-file rule, the defendant party must show that the declaratory plaintiffs action was filed as a forum shopping device in anticipation of imminent suit by the defendant. In contrast, § 2201 does not require the declaratory plaintiffs action to have been commenced in imminent apprehension of suit. Rather, as discussed above, § 2201 merely requires that the declaratory plaintiff commence the action in response to a reasonable apprehension of suit. See Phillips Plastics Corp., 57 F.3d at 1052; Shell Oil Co., 970 F.2d at 887-88. In a patent infringement action, the declaratory plaintiffs reasonable apprehension of suit may be satisfied by either an express claim of infringement by the patentee or when the totality of the circumstances makes such a conclusion by the declaratory plaintiff reasonable. Shell Oil Co., 970 F.2d at 888. Thus, a declaratory plaintiff in a patent infringement action may properly initiate suit where the totality of circumstances reveals a reasonable belief that defendant will commence an infringement suit against it, but these factors may well fall short of the imminent suit requirements set forth in Amerada and Ward Moreover, as recognized by Plaintiff in its Opposition, adopting Precor’s interpretation of § 2201 would emasculate the first-to-file rule in declaratory relief actions in patent cases where the declaratory plaintiff files suit in an attempt to quash threats by the patentee. Therefore, contrary to Precor’s assertion, the Court’s Order stating that Precor’s correspondence did not create a reasonable apprehension of imminent suit in Plaintiff for purposes" }, { "docid": "10829166", "title": "", "text": "1624, 283 Cal.Rptr. 104 (Ct.App.1991); see also 28 U.S.C. § 2201; Huth v. Hartford Ins. Co., 298 F.3d 800, 802 (9th Cir.2002) (“The exercise of jurisdiction under the Federal Declaratory Judgment Act ... is committed to the sound discretion of the federal district courts.”). “The first to file rule is ‘a generally recognized doctrine of federal comity which permits a district court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district.’ ” Inherent.com v. Martindale-Hubbell, 420 F.Supp.2d 1093, 1097 (N.D.Cal.2006) (citing Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir.1982)). As Xoxide correctly points out, “the ‘first to file’ rule normally serves the purpose of promoting efficiency well and should not be disregarded lightly.” (Opp. at 6) (citing Church of Scientology v. U.S. Dep’t of the Army, 611 F.2d 738, 750 (9th Cir.1979)); see also Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622, 625 (9th Cir.1991). That general rule, however, is not without exception. It is well-understood that “[c]ircumstances and modern judicial reality, however, may demand that we follow a different approach from time to time.” Church of Scientology, 611 F.2d at 750; see also William W. Schwarzer, et al., California Practice Guide; Federal Civil Procedure Before Trial § 2:1329, 15 at 2E-63 (2005). That is, the Court may, in its discretion, rely on equitable grounds, such as “when the filing of the first suit evidences bad faith, anticipatory suit, or forum shopping,” to determine whether to depart from the first to file rule. Inherent.com. 420 F.Supp.2d at 1097 (emphasis added); see also Alltrade, Inc., 946 F.2d at 628 (“The circumstances under which an exception to the first-to-file rule typically will be made include bad faith, anticipatory suit, and forum shopping.... [District court judges can, in the exercise of their discretion, dispense with the first-filed principle for reasons of equity.”) (citations omitted). Anticipatory suits are found when the “plaintiff in the first-filed action filed suit on receipt of specific, concrete indications that a suit by the defendant was imminent,” and are viewed with" }, { "docid": "22240434", "title": "", "text": "737 (1st Cir.), cert. denied, 434 U.S. 860, 98 S.Ct. 185, 54 L.Ed.2d 133 (1977). The circumstances under which an exception to the first-to-file rule typically will be made include bad faith, see Crosley Corp. v. Westinghouse Elec. & Mfg. Co., 130 F.2d 474, 476 (3d Cir.), cert. denied, 317 U.S. 681, 63 S.Ct. 202, 87 L.Ed. 546 (1942); anticipatory suit, and forum shopping, see Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 n. 3 (5th Cir.1983) (“Anticipatory suits are disfavored because they are aspects of forum-shopping”); Factors, Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 217, 219 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979); Mattel, Inc. v. Louis Marx & Co., 353 F.2d 421, 424 n. 4 (2d Cir.), cert. dismissed, 384 U.S. 948, 86 S.Ct. 1475, 16 L.Ed.2d 546 (1965). However, notwithstanding the fact that Alltrade has raised serious questions concerning Uniweld’s conduct, it has summoned the wrong precedents and addressed itself to the wrong court. The most basic aspect of the first-to-file rule is that it is discretionary; “an ample degree of discretion, appropriate for disciplined and experienced judges, must be left to the lower courts.” Kerotest, 342 U.S. at 183-184, 72 S.Ct. at 221; see also Pacesetter, 678 F.2d at 95. The cases cited by appellant are cases in which exceptions to the rule have been allowed; they stand for the proposition that district court judges can, in the exercise of their discretion, dispense with the first-filed principle for reasons of equity. But it is not an abuse of discretion, and therefore not reversible error, for a district court judge to weigh the facts and conclude that the rule should apply. The decision and the discretion belong to the district court. As for the respective convenience of the two courts, normally [this argument] should be ad- • dressed to the court in the first-filed action. Apprehension that the first court would fail to appropriately consider the convenience of the parties and the witnesses should not be a matter for our consideration. The court in the" }, { "docid": "569907", "title": "", "text": "deny the Motion of PSI to Dismiss or Stay. Granting such a motion would be inequitable in light of the actions of PSI in relation to this case. The Court notes that it is within the discretion of the Court to allow this later filed action to proceed. See, e.g., Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 219 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979) (district court did not abuse its discretion in allowing later filed suit to proceed where earlier filed declaratory judgment action was anticipatory). However, in light of the denial by the federal court in Nebraska of the Motion to Dismiss or Alternatively to Transfer or Stay and the Motion for Reconsideration filed by Southmark in that court, this Court cannot grant the Motion for Injunctive Re lief of Southmark requesting that PSI be enjoined from pursuing its declaratory judgment action. A number of courts have recognized even in affirming the dismissal or stay of anticipatory declaratory judgment suits that the decision whether or not to dismiss or stay is a matter of the district court’s discretion. E.g., Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 (5th Cir.1983); Ven-Fuel, Inc. v. Dep’t of Treasury, 673 F.2d 1194, 1195 (11th Cir.1982); Amerada Petroleum v. Marshall, 381 F.2d 661 (5th Cir.1967), cert. denied, 389 U.S. 1039, 88 S.Ct. 776, 19 L.Ed.2d 828 (1968); Chicago Furniture Forwarding Co. v. Bowles, 161 F.2d 411, 413 (7 th Cir.1947). This Court is not competent to determine whether or not the federal district court in Nebraska abused its discretion in refusing to stay or dismiss the declaratory judgment action of PSI. Only the Court of Appeals for the Eighth Circuit on proper appeal can make that determination. The Court notes that the denial of the Motion to Dismiss or Stay of PSI does not conflict with the holding of the federal court in Nebraska denying the Motion to Dismiss or Alternatively to Transfer or Stay of Southmark. The court in Nebraska held only that it had personal jurisdiction over Southmark," }, { "docid": "22795139", "title": "", "text": "is that the first suit should have priority, “ ‘absent the showing of balance of convenience in favor of the second action’ ... or unless there are special circumstances which justify giving priority to the second.” William Gluckin & Co. v. International Playtex Corp., 407 F.2d 177, 178 (2d Cir. 1939), quoting Remington Products Corp. v. American Aerovap, Inc., 192 F.2d 872 (2d Cir. 1951). The Supreme Court has articulated the test to be “wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation . . .” Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952). In deciding between competing jurisdictions, the balancing of convenience should be left to the sound discretion of the district court. Id. at 183-84, 72 S.Ct. 219; William Gluckin & Co. v. International Playtex Corp., 407 F.2d at 178. We conclude that the district court did not abuse its discretion by allowing the later filed action to proceed. First, at the time that this case was filed, two additional lawsuits against other defendants by Factors presenting the identical issue for resolution were pending in the Southern District of New York. Efficient and responsible judicial administration dictated that these three cases be tried before the same forum. Id. See Remington Products Corp. v. American Aerovap, Inc., 192 F.2d 872, 873 (2d Cir. 1951). Second, Pro Arts’ suit for declaratory judgment was filed in apparent anticipation of Factors’ New York suit. When the declaratory judgment action has been triggered by a notice letter, this equitable consideration may be a factor in the decision to allow the later filed action to proceed to judgment in the plaintiffs’ chosen forum. Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967). Accord, Columbia Pictures Industries, Inc. v. Schneider, 435 F.Supp. 742, 747 (S.D.N.Y.1977). As Mr. Justice Brennan has observed, “[t]he federal declaratory judgment is not a prize to the winner of a race to the courthouses.” Perez v. Ledesma, 401 U.S. 82, 119 n. 12, 91 S.Ct. 674, 694, 27 L.Ed.2d 701" } ]

[ { "docid": "3015471", "title": "", "text": "been definitely ascertained to justify deduction from income in the taxable year. Confessedly, it is enough if the facts from which the amount can be calculated had then occurred and are later ascertained, or as Judge Learned Hand puts it in Uncasville Mfg. Co. v. Com’r, 2 Cir., 55 F.2d 893, 895, if the computation, although unknown, is not unknowable at the end of the year. Such was the situation before the court in Continental Tie & Lumber Co. v. United States, 286 U.S. 290, 52 S. Ct. 529, 76 L.Ed. 1111, where the amount of a government award was not ascertained until 1923, but it was held that the right of the taxpayer thereto having ripened in 1920, it should have been returned in an estimated amount as part of the income for that year. To the same effect was the decision of this court in Baltimore & Ohio R. Co. v. Com’r, 4 Cir., 78 F.2d 456. Again it has been held that a liability may be accrued as. a fixed obligation on the taxpayer’s books and taken as a deduction from income when it is definitely incurred, although it is known at the time that the amount may be diminished by subsequent events. American National Co. v. United States, 274 U.S. 99, 47 S.Ct. 520, 71 L.Ed. 946; Ohmer Register Co. v. Com’r, 6 Cir., 131 F.2d 682, 143 A.L.R. 1164. It is not suggested that the pending case falls precisely within either of the two categories last described. They serve to show, however, that the accrual of the approximate amount of an item that comes into existence in a taxable year to be followed by appropriate adjustments when the precise amount is ascertained, is not deemed impracticable by the taxing authorities or inconsistent with the principle that income and. outgo must be computed and taxed on an annual basis. Moreover, decisions of the courts, including the Tax Court itself, furnish examples of the allowance of a reasonably accurate estimate of the cost of meeting a liability as a proper deduction from income of a taxpayer on" } ]

[ { "docid": "20183623", "title": "", "text": "by the use of the installment method as provided by section 453 of the Code of 1954 and since there is no controversy as to the correctness of the petitioner’s accrual of the selling price of the vehicle and the petitioner’s expenditures for insurance and filing fees in the year of the sale of a vehicle, it was incumbent on the petitioner to establish a factual basis that would warrant its action in not also accruing on its books in the year of the sale the full amount of the finance charge instead of crediting the amount to a deferred income account. In my opinion the petitioner has failed to establish such basis. The showing that the amount of the finance charge was based on a credit report on each particular customer reflecting the factors usually considered in determining whether a credit sale is to be made and, if so, the proper amount thereof, does not aid the petitioner. Such a showing would equally support the conclusion that the finance charge was merely a segregated portion of the selling price charged because of the risk and the costs of administrative handling involved in- making a credit sale to the particular customer on a deferred payment plan. Accrual basis taxpayers are axiomatically required to report income on the basis of the legal liability of others to pay where the amount of the liability can be determined with reasonable accuracy, not, as the majority opinion holds, an amount which is absolutely -fixed. Continental Tie & L. Co. v. United States, 286 U.S. 290 (1932); Cappel Mouse Furnishing Co. v. United States, 244 F. 2d 525 (C.A. 6, 1957); George K. Herman Chevrolet, Inc., 39 T.C. 846 (1963); sec. 1.446-1(c) (1) (ii), Income Tax Kegs. The creation of the liability fixes the time of accrual which in this case is the execution and delivery of the promissory note of the payor coupled with delivery to bim of the merchandise, the purchase price of which is represented by the note. In this case there is no condition existing precedent to the fixing of such" }, { "docid": "10589069", "title": "", "text": "tax purposes even though it would not otherwise be treated as a corporation for Federal tax purposes. Sec. 1.9924(a), Income Tax Regs. Intercompany Pricing Rules Section 994(a) provides three methods of computing the transfer price at which a related supplier is deemed to have sold its products to a DISC, regardless of whether any price is actually paid. Section 994(a) provides: SEC. 994(a). In General. — In the case of a sale of export property to a DISC by a person described in section 482, the taxable income of such DISC and such person shall be based upon a transfer price which .would allow such DISC to derive taxable income attributable to such sale (regardless of the sales price actually charged) in an amount which does not exceed the greatest of— (1) 4 percent of the qualified export receipts on the sale of such property hy the DISC plus 10 percent of the export promotion expenses of such DISC attributable to such receipts. (2) 50 percent of the combined taxable income of such DISC and such person which is attributable to the qualified export receipts on such property derived as the result of a sale by the DISC plus 10 percent of the export promotion expenses of such DISC attributable to such receipts, or (3) taxable income based upon the sale price actually charged (but subject to the rules provided in section 482). Petitioner determined its transfer price in accordance with section 994(a)(2), the “50-50 combined taxable income” method. This method permits a DISC to earn 50 percent of the “combined taxable income” of the DISC and its related supplier. Petitioner is the related supplier of International. The DISC is also permitted to earn 10 percent of any export promotion expenses, which are not at issue. A DISC may operate on a “buy-sell” basis (by taking title to the property to be exported) or on a commission basis (under which it functions as a commission agent for export sales). Brown-Forman Corp. v. Commissioner, 94 T.C. 919, 946 (1990). Although the three intercompany pricing methods contained in section 994(a) literally apply" }, { "docid": "10400106", "title": "", "text": "such calendar years, and, therefore, its taxable income for Federal income tax purposes should be adjusted as follows: OPINION. Respondent seeks to include in petitioner’s income for the calendar years 1951,1952, and 1953 compensation for services rendered during those years, the amount of which was never determined by the contracting parties, which computed the fee for Homestead’s fiscal years only. The issue involved concerns a question of accounting, the disposition of which is controlled by sections 41 and 42, 1.E.C. 1939. The applicable principles were stated by this Court in San Francisco Stevedoring Co., 8 T.C. 222, 225: A taxpayer, using an accrual method of accounting, must accrue an item in the year in which the taxpayer acquires a fixed and unconditional right to receive the amount, even though actual payment is to be deferred. There must he no contingency or unreasonable uncertainty qualifying the payment or receipt. Income does not accrue to a taxpayer using an accrual method until there arises in him a fixed or unconditional right to receive it. United States v. Anderson, 269 U.S. 422; Continental Tie & Lumber Co. v. United States, 286 U.S. 290; Spring City Foundry Co. v. Commissioner, 292 U.S. 182; [further citations omitted]. See also Cappel House Furnishing Co. v. United States, 244 F. 2d 525, 529 (C.A. 6, 1957) where the Court of Appeals for the Sixth Circuit said: The general rule is that when there is no contest over liability and its measure does not depend upon future events or contingencies, income accrues after liability becomes fixed, although the exact amount may not be determined until later. [Oitations omitted.] In our view petitioner’s right to receive the amounts of income which respondent seeks to include in its income for the taxable years 1951, 1952, and 1953 was not fixed and unconditional. Even though the existence of a liability is not contested, the measure thereof does depend here upon future events and contingencies. Compensation for the services and facilities which petitioner, an accrual and calendar basis taxpayer, provided to Homestead during the years 1951,1952, and 1953, under the understanding which" }, { "docid": "10589066", "title": "", "text": "preliminary requirement in determining the tax deferral benefits available to petitioner through section 944(a)(2) of the DISC intercompany pricing rules is the computation of the “combined taxable income” of petitioner and Interna tional. Combined taxable income equals the excess of the gross receipts of the DISC from export commission sales over the total costs of the DISC and its related supplier (petitioner) which relate to the gross receipts. In computing combined taxable income, petitioner failed to allocate any of the research and development expenses attributable to the cardiac pacemaker and the insulin pump to gross receipts from export sales. In addition, petitioner failed to allocate 30 percent of the research and development expenses attributable to the heart valve between gross receipts from export sales and all other gross receipts: R&D Allocated Exclusively to All Other Gross Receipts Description Implantable insulin pump Implantable cardiac pacemaker 30% exclusive apportionment Cost of terminating implantable insulin pump development Total International fiscal year ending 1/31/82 1/31/83 1/31/84 $390,217 390,121 87,719 $451,123 $552,200 655,806 1,523,863 451,123 552,200 Respondent recomputed combined taxable income by allocating additional research and development expenses between gross receipts from export sales and all other gross receipts: Additional research and development expenses International allocated in computing fiscal year ending combined taxable income 1/31/82. $1,523,863 1/31/83. 451,123 1/31/84. 552,200 The effect of respondent’s determination is to reduce the combined taxable income of petitioner and International during the years in issue, which in turn reduces the amount of commissions deemed paid to International pursuant to section 994(a)(2) by $508,600 in 1981, $143,202 in 1982, and $135,582 in 1983. The reduction in commissions deemed paid to International reduces the amount of income eligible for tax deferral through the DISC provisions. In addition, the reduction in commissions deemed paid reduces the deemed distribution from International to petitioner pursu ant to section 995 by $239,353 in 1982, and $69,933 in 1983. The DISC Provisions As part of the Revenue Act of 1971, Pub. L. 92-178, 85 Stat. 497, Congress enacted the DISC provisions (secs. 991 through 997) to stimulate exports and grant a Federal income tax deferral opportunity" }, { "docid": "10589070", "title": "", "text": "such person which is attributable to the qualified export receipts on such property derived as the result of a sale by the DISC plus 10 percent of the export promotion expenses of such DISC attributable to such receipts, or (3) taxable income based upon the sale price actually charged (but subject to the rules provided in section 482). Petitioner determined its transfer price in accordance with section 994(a)(2), the “50-50 combined taxable income” method. This method permits a DISC to earn 50 percent of the “combined taxable income” of the DISC and its related supplier. Petitioner is the related supplier of International. The DISC is also permitted to earn 10 percent of any export promotion expenses, which are not at issue. A DISC may operate on a “buy-sell” basis (by taking title to the property to be exported) or on a commission basis (under which it functions as a commission agent for export sales). Brown-Forman Corp. v. Commissioner, 94 T.C. 919, 946 (1990). Although the three intercompany pricing methods contained in section 994(a) literally apply only to Disc’s operating on a “buy-sell” basis, section 994(b)(1) provides that rules consistent with those set forth in section 994(a) shall be prescribed by regulation for Disc’s operating on a commission basis: SEC. 994(b). Rules for Commissions, Rentals, and Marginal COSTING. — The Secretary shall prescribe regulations setting forth— (1) rules which are consistent with the rules set forth in subsection (a) for the application of this section in the case of commissions, rentals, and other income * * * International operated on a commission basis with respect to heart valves exported by petitioner. Computation of Combined Taxable Income The term “combined taxable income,” which appears in section 994(a)(2) and (b)(2), is not defined in the Internal Revenue Code. Section 1.994-l(c)(6), Income Tax Regs., defines combined taxable income as: the excess of the gross receipts (as defined in section 993(f)) of the DISC from such sale over the total costs of the DISC and related supplier which relate to such gross receipts. * * * In determining the gross receipts of the DISC and" }, { "docid": "6139036", "title": "", "text": "known as Longview Fibre Co. International, acted as commission agent for petitioner’s export sale of logs. At all times pertinent to the issue in this case, Longview Fibre Co. International has been a domestic international sales corporation, or DISC, as defined by section 992(a). Under a written agreement between petitioner and its DISC subsidiary, the DISC was entitled to commissions “equal to the maximum amount permitted to be received by a DISC company under the inter-company pricing rules of section 994 of the Internal Revenue Code of 1954.” During its taxable years ended October 31,1972, and October 31, 1973, petitioner’s DISC subsidiary earned a commission on petitioner’s export of logs equal to the maximum amount allowable under the inter-company pricing rules of section 994. Using the 50-percent of combined taxable income method as provided in section 994(a)(2), petitioner computed its DISC’S commissions as follows: TYE Oct. si— 1972 1973 Qualified export receipts from the export of sale logs . $2,697,283 $14,271,045 Adjusted basis standing timber (later to be exported as logs) .... (32,088) (73,158) Other costs attributable to exported logs: Amortization — roads . (35,267) (86,303) Contractor costs . (723,484) (2,368,730) Administrative costs . (395,430) (1,184,186) Income attributable to export receipts . 1,511,014 10,558,668 DISC commission under sec. 994(a)(2): Petitioner’s method . 755,507 5,279,334 Respondent computed the amount of the DISC’S commission by subtracting from the qualified export receipts the fair market value of the standing timber on the first day of the taxable year. The effect of respondent’s adjustment is to decrease the amount of income attributable to export receipts and, consequently, decrease the amount of the commission payable to the DISC subsidiary computed under section 994(a)(2), which petitioner is entitled to deduct in computing its taxable income. According to respondent’s computation, for the year ended October 31,1972, petitioner’s DISC subsidiary would have realized no income attributable to export receipts and would, therefore, not have been entitled to any DISC commission under section 994(a)(2). For the year ended October 31, 1973, according to respondent’s computation, petitioner’s DISC subsidiary realized income attributable to export receipts in the amount of $1,251,971" }, { "docid": "6139048", "title": "", "text": "true that asset's in the nature of section 1231 assets fall within the ambit of “qualified export assets” in section 993(b)(2), the inter-company pricing rules of section 994 do not apply to the sales of all qualified export assets. Rather, they apply only to a particular type of qualified export asset known as “export property,” a term defined by section 993(c). The section 993(c) definition of export property does not include assets in the nature of section 1231 property. Consequently, petitioner’s argument that Congress contemplated the combination of capital gains from the sale of section 1231 assets with DISC deferral is incorrect. Section 631(a) and sections 1.631-l(d)(3), 1.631-l(e), and 1.994-1(c)(6)(h), Income Tax Regs., clearly provide that in computing the commissions payable to its DISC subsidiary petitioner must include, as the costs of goods sold, the fair market value of timber as of the first day of the taxable year. We consider these regulations to be valid. We therefore hold for respondent on the only issue before us. However, because of other adjustments, Decision will be entered under Rule 155. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1954, as amended and in effect during the years in issue. SEC. 994. INTER-COMPANY PRICING RULES. (a) In General. — In the case of a sale of export property to a DISC by a person described in section 482, the taxable income of such DISC and such person shall be based upon a transfer price which would allow such DISC to derive taxable income attributable to such sale (regardless of the sales price actually charged) in an amount which does not exceed the greatest of— (1) 4 percent of the qualified export receipts on the sale of such property by the DISC plus 10 percent of the export promotion expenses of such DISC attributable to such receipts. (2) 50 percent of the combined taxable income of such DISC and such person which is attributable to the qualified export receipts on such property derived as the result' of a sale by the DISC plus 10 percent of the export" }, { "docid": "10589116", "title": "", "text": "from the sale of export property. Section 925(b) is identical to section 994(b) except for the replacement of the designation “DISC” with “FSC.” The Senate Finance committee explanation states: In general, where the provisions of the bill are identical or substantially similar to the DISC provisions under present law, the committee intends that rules comparable to the rules in regulations issued under those provisions will be applied to the FSC. [S. Rept. 98-169 (Vol. I), at 636 (1984).] Among the relevant factors specified by the Supreme Court, National Muffler Dealers Association v. United States, 440 U.S. at 472, in judging the validity of interpretative regulations are the length of time the regulation has been in effect, the reliance placed on it, the consistency of the Commissioner’s interpretation, and the degree of scrutiny Congress has devoted to the regulation during subsequent reenactments of the statute. In the instant case these considerations indicate that section 1.861-8(e)(3), Income Tax Regs., harmonizes with the origin and purpose of the DISC provisions. Due to the length of time the final 1977 regulations have been in effect, the close and repeated review of the challenged regulations by Congress and the Treasury, Congress’ decision not to suspend the application of the allocation and apportionment provisions with respect to a DISC, and petitioner’s failure to produce any legislative history indicating congressional disapproval of the regulations or a lack of harmony with the origin and purpose of the DISC provisions, we reject petitioner’s contention that section 1.861-8(e)(3), Income Tax Regs., is an invalid interpretation of congressional intent to the extent it requires allocation of research and development expenses according to SIC product categories in computing the combined taxable income of a DISC and its related supplier. b. Whether section 1.861-8(e)(3), Income Tax Regs., as incorporated by section 1.994-l(c)(6), Income Tax Regs., which does not allow an allocation using industry and trade usage product categories, is invalid because the express language of section 994(b) requires the regulations governing allocation of costs of a commission DISC to be consistent with the determination of a transfer price under section 994(a). Petitioner argues" }, { "docid": "6139037", "title": "", "text": "costs attributable to exported logs: Amortization — roads . (35,267) (86,303) Contractor costs . (723,484) (2,368,730) Administrative costs . (395,430) (1,184,186) Income attributable to export receipts . 1,511,014 10,558,668 DISC commission under sec. 994(a)(2): Petitioner’s method . 755,507 5,279,334 Respondent computed the amount of the DISC’S commission by subtracting from the qualified export receipts the fair market value of the standing timber on the first day of the taxable year. The effect of respondent’s adjustment is to decrease the amount of income attributable to export receipts and, consequently, decrease the amount of the commission payable to the DISC subsidiary computed under section 994(a)(2), which petitioner is entitled to deduct in computing its taxable income. According to respondent’s computation, for the year ended October 31,1972, petitioner’s DISC subsidiary would have realized no income attributable to export receipts and would, therefore, not have been entitled to any DISC commission under section 994(a)(2). For the year ended October 31, 1973, according to respondent’s computation, petitioner’s DISC subsidiary realized income attributable to export receipts in the amount of $1,251,971 and, under section 994(a)(2), was entitled to a commission of half of this amount, or $625,986. On its Federal corporate income tax return for each year here in issue, petitioner deducted the amount of the log commission paid to its DISC subsidiary. Section 631(a) allows a taxpayer to elect to consider the cutting of timber as a sale or exchange of a section 1231 asset. Added to the Code by the Revenue Act of 1943, the predecessor of section 631 was intended to remove tax considerations as a factor in the decision of a timber grower whether to sell his land or his standing timber or to harvest the timber himself. Prior to enactment of this section, income realized from the cutting of timber was taxed as ordinary income even though much of the income might have been attributable to timber growth over a substantial period of time. An outright sale of the land with the standing timber or a sale of the uncut timber, however, could result in a capital gain to the taxpayer." }, { "docid": "10589126", "title": "", "text": "duplicate the unlimited tax deferral available to a foreign subsidiary by maintaining its earnings and profits offshore. Congressional intent in this regard is established by section 994(a) itself, which provides three limited methods of computing a transfer price. It would be absurd to argue that, where the section 994(a)(1) method, which allows taxable income equal to 4 percent of qualified export receipts plus 10 percent of export promotion expenses, is applicable, the corresponding regulations must allow the DISC to defer tax in an amount equal to that enjoyed by a foreign subsidiary. It is no more rational to insist that the regulations implementing the combined taxable income method, which is limited to 50 percent of combined taxable income attributable to qualified export receipts plus 10 percent of export promotion expenses, must allow an equivalent deferral. Congress’ intent to place limits on combined taxable income for purposes of section 994(a)(2) is supported by the statement in the Senate report that “Income may not * * * be allocated to the DISC [under the rules of section 994(a)(1) and (2)] * * * to the extent that it would result in the related person who sold the products to the DISC incurring a loss on the sale.” S. Rept. 92-437 (1971), 1972-1 C.B. 559, 618. Such a “no loss” rule suggests that Congress intended to prevent unlimited allocation of taxable income to the DISC at the expense of its related supplier. Brown-Forman Corp. v. Commissioner, 94 T.C. at 946 n.27. Petitioner’s argument is directed not at the regulations in issue, but at the transfer pricing methods provided by section 994(a), which explicitly provide for a limited deferral of income through the use of a DISC. We therefore reject petitioner’s contention that section 1.861-8(e)(3), Income Tax Regs., which precludes export sales of a DISC from coming within the wholesale trade category, is an invalid regulation because such regulation allows a lesser degree of Federal income tax deferral than that enjoyed by a foreign subsidiary. Petitioner also argues that section 1.861-8(e)(3), Income Tax Regs., is invalid because the explanations provided by the Secretary prior" }, { "docid": "6139044", "title": "", "text": "its DISC subsidiary, petitioner was obligated to pay a DISC commission equal to the maximum amount permitted to be received by a DISC subsidiary under the inter-company pricing rules of section 994. Petitioner determined that the “50 percent of the combined taxable income attributable to qualified export receipts” method of computing the DISC commission as authorized by section 994(a)(2) resulted in the maximum permissible commission. Section 1.994-l(c)(6), Income Tax Regs., sets forth the rules governing computation of the combined taxable income. Subsection (ii) provides: (ii) Cost of goods sold shall be determined in accordance with the provisions of sec. 1.61-3. See sections 471 and 472 and the regulations thereunder with respect to inventories. With respect to property to which an election under section 631 applies (relating to cutting of timber considered as a sale or exchange), cost of goods sold shall be determined by applying sec. 1.631-l(d)(3) and (e) (relating to fair market value as of the beginning of the taxable year of the standing timber cut during the year considered as its cost). [Emphasis supplied.] Respondent contends that his method of computation of petitioner’s DISC subsidiary’s income attributable to qualified export receipts is in accordance with section 1.994-l(c)(6)(iii) and section 1.631-l(d)(3) and (e), Income Tax Regs. See nn. 8 & 9. Petitioner argues that respondent in his computation has overlooked the portion of section 1.631-l(d)(3), Income Tax Regs., which states “for which such cost is a necessary factor.” Petitioner contends that “such cost” is not a necessary factor in determining the combined taxable income of it and its DISC attributable to “qualified export receipts.” Petitioner argues that “receipts” are not produced by cutting timber and that to apply the regulations as respondent does have the effect of double taxation of the long-term increment in the value of the timber. We find no merit to petitioner’s contention. “Qualified export receipts” in this case basically are the sales price of the logs sold on the export market. To determine the combined taxable income derived from these sales (that is, the income without splitting the profits between petitioner and its DISC) it" }, { "docid": "16038943", "title": "", "text": "Gerber, Judge: Respondent determined Federal income tax deficiencies in petitioner’s taxable income of $4,904,470 and $14,143,945 for the taxable years ending March 31, 1982, and March 31, 1983, respectively. The deficiencies are solely attributable to respondent’s determination that petitioner did not qualify as a domestic international sales corporation (disc). The major issue for consideration is the validity of certain aspects of section 1.993-6(e)(l), Income Tax Regs. Two preliminary issues also for consideration are (1) whether domestic sales, erroneously included as qualified export receipts, should be included in the gross receipts test which is a prerequisite to petitioner’s qualifying as a DISC; and (2) whether, in the context of this litigation, petitioner can increase the amount of qualified export receipts it reported on its Federal income tax return. FINDINGS OF FACT Some of the facts have been stipulated, and the stipulation of facts and attached exhibits are incorporated by this reference. Petitioner’s principal place of business at the time of the filing of the petition in this case was Los Angeles, California. Hughes Aircraft Co. (Hughes) manufactured sophisticated electronic products for use in the defense industry. Petitioner, Hughes International Sales Corp. (HISC), was incorporated by Hughes on October 19, 1973, in the State of California. Hughes owned 100 percent of HlSC’s one class of voting common stock outstanding during the years in issue. Hughes formed HISC to be its export sales representative and exporter. HISC elected to file its Federal income tax returns on a fiscal year basis ending on March 31. On December 20, 1973, HISC filed an election to be taxed as a DISC under section 992. HISC also elected to use the accrual method of accounting for financial reporting and tax purposes. HISC had no employees and was not engaged in manufacturing or construction. HISC and Hughes entered into a written sales representative agreement on October 19, 1973. Under the terms of the agreement, HISC agreed to act as Hughes’ agent, and Hughes agreed to pay HISC a commission, for all sales of Hughes’ products and services exported from the United States. The agreement provided for commissions on" }, { "docid": "9965502", "title": "", "text": "the tax was paid, properly would be treated as an adjustment to Southern Comfort’s cost basis in its exported liqueur and not as an additional item of “gross receipts.” See Freedom Newspapers, Inc. v. Commissioner, T.C. Memo. 1977-429. We therefore hold that Southern Comfort is not entitled to increase “gross receipts” from export sales, for purposes of the OPPL, by any amount attributable to the excise tax on distilled spirits. 3. Validity of OPPL Regulation Petitioner also alternatively argues that section 1.994-2(b)(3), Income Tax Regs., imposing the OPPL, is invalid. In support of its position, petitioner argues on brief that: Code Section 994(b)(2) provides for the marginal cost method for determining taxable income from export sales where a taxpayer is attempting to establish or maintain a foreign market. That section does not authorize the percentage limitation imposed by Regulation Section 1.994-2(b)(3). Without such authorization by the Code, the percentage limitation imposed by the Regulation is invalid. * * * * * * * The policy behind section 994(b)(2) was to stimulate exports by increasing their after tax profitability. Section 994(b)(2) carried out that policy, by permitting taxpayers to price exports on a marginal cost basis to increase export taxable income and the DISC commissions. Respondent’s regulation in issue does just the opposite. It requires export taxable income and the DISC commissions to be decreased. Respondent’s regulation defeats, rather than carries out, the purpose of the statute. The Regulation is therefore invalid. Petitioner also cites several cases in which DISC regulations have been held invalid. We disagree with petitioner’s analysis and hold that the challenged regulation is valid. The challenged regulation, section 1.994-2(b)(3), Income Tax Regs., was issued under the specific authority of section 994(b)(2) and is thus classified as a “legislative regulation.” Accordingly, the regulation is entitled to “even greater weight and deference than are accorded to interpretive regulations.” Olson v. Commissioner, 81 T.C. 318, 323 (1983). See also Dresser Industries v. Commissioner, 92 T.C. 1276, 1290 (1989), on appeal (5th Cir., October 23, 1989); United States v. Vogel Fertilizer Co., 455 U.S. 16, 24 (1982); Rowan Cos. v. United" }, { "docid": "6139032", "title": "", "text": "OPINION Scott, Judge: Respondent determined deficiencies in petitioner’s Federal income taxes in the amounts of $354,228.07 and $2,030,062.96 for the taxable years ended October 31,1972, and October 31, 1973, respectively. Petitioner has conceded the correctness of some of the adjustments respondent made in the notice of deficiency, leaving for our decision only the proper amount of commission income of petitioner’s domestic international sales corporation (DISC) subsidiary, Longview Fibre Co. International, on sales of logs for petitioner. A DISC is not taxable on its profits, but under section 995, I.R.C. 1954, the parent of the DISC subsidiary is in its current year taxable on one-half of the income of the DISC subsidiary and the tax on the other one-half is deferred. When the income of the DISC subsidiary consists of commissions on qualified sales for the parent, the parent in computing its taxable income is entitled to deduct in the year of the sale the entire commission income of the DISC.. Section 994(a) provides for the inter- company pricing rules to be used in computing the income of the DISC. The parties do not differ with respect to the right of petitioner to deduct, in computing its taxable income for each year here in issue, the commission income of its DISC or that this commission income is to be computed under section 994(a). The difference between the parties is solely as to what constitutes the “combined taxable income” of petitioner and its DISC from qualified export sales. The precise issue is the cost to be used for the logs sold in determining this income. This issue arises because petitioner owns the land on which it grows timber and from which it cuts the logs exported and sold by its DISC for it on a commission basis, and petitioner has elected to consider the cutting of its timber as a sale or exchange of timber under section 631. All of the facts have been stipulated and are found accordingly- Petitioner is a corporation with its principal office in Longview, Wash. It keeps its books and files its tax returns on the basis" }, { "docid": "6139035", "title": "", "text": "1972 and 1973 was sold in the same year when it was cut. During its fiscal years 1972 and 1973, petitioner had in effect the election provided by section 631(a). Accordingly, petitioner treated the cutting of its timber in those years as a sale of such timber and determined its gain on the basis of the difference in the fair market value of its timber at the beginning of each fiscal year and its adjusted basis in the timber. Sec. 631(a). It reported the gain so computed as capital gain under sections 1231, 1222(3), 1222(11), and 1201(a). In computing its ordinary income from the sale of logs on its tax return for each of its fiscal years 1972 and 1973, petitioner used as its costs of goods sold log costs computed by using the fair market value of the timber at the beginning of each year. During its fiscal years 1972 and 1973, petitioner exported products produced in the United States to foreign countries. In the exporting operations, petitioner’s domestic international sales corporation (DISC) subsidiary, known as Longview Fibre Co. International, acted as commission agent for petitioner’s export sale of logs. At all times pertinent to the issue in this case, Longview Fibre Co. International has been a domestic international sales corporation, or DISC, as defined by section 992(a). Under a written agreement between petitioner and its DISC subsidiary, the DISC was entitled to commissions “equal to the maximum amount permitted to be received by a DISC company under the inter-company pricing rules of section 994 of the Internal Revenue Code of 1954.” During its taxable years ended October 31,1972, and October 31, 1973, petitioner’s DISC subsidiary earned a commission on petitioner’s export of logs equal to the maximum amount allowable under the inter-company pricing rules of section 994. Using the 50-percent of combined taxable income method as provided in section 994(a)(2), petitioner computed its DISC’S commissions as follows: TYE Oct. si— 1972 1973 Qualified export receipts from the export of sale logs . $2,697,283 $14,271,045 Adjusted basis standing timber (later to be exported as logs) .... (32,088) (73,158) Other" }, { "docid": "10589065", "title": "", "text": "International, an accrual basis taxpayer, operated on a January 31 fiscal year. Pursuant to a DISC commission agreement, petitioner was to pay International the maximum commission allowable under section 994 and the applicable regulations for all export sales of petitioner’s product. International qualified as a DISC under section 992 during its fiscal years 1981 through 1984. International incurred no research and development expenses during the years in issue. Petitioner’s total sales, domestic sales, export commission sales, and the percentage of export commission sales to total sales during calendar year 1981, 1982, and 1983 were: Total Domestic Year sales sales 1981 $13,206,395 $4,953,507 1982 17,528,098 6,285,996 1983 25,624,428 11,847,468 Export commission sales involving International $8,252,888 11,242,102 13,776,960 % of export sales to total sales 62.48% 64.14 53.76 During each year at issue, 100 percent of petitioner’s research and development activity was performed in the United States. Because the terms of sale for International were f.o.b., St. Paul, Minnesota, International bore the expense and risk of loss of putting a shipment into possession of the carrier. A preliminary requirement in determining the tax deferral benefits available to petitioner through section 944(a)(2) of the DISC intercompany pricing rules is the computation of the “combined taxable income” of petitioner and Interna tional. Combined taxable income equals the excess of the gross receipts of the DISC from export commission sales over the total costs of the DISC and its related supplier (petitioner) which relate to the gross receipts. In computing combined taxable income, petitioner failed to allocate any of the research and development expenses attributable to the cardiac pacemaker and the insulin pump to gross receipts from export sales. In addition, petitioner failed to allocate 30 percent of the research and development expenses attributable to the heart valve between gross receipts from export sales and all other gross receipts: R&D Allocated Exclusively to All Other Gross Receipts Description Implantable insulin pump Implantable cardiac pacemaker 30% exclusive apportionment Cost of terminating implantable insulin pump development Total International fiscal year ending 1/31/82 1/31/83 1/31/84 $390,217 390,121 87,719 $451,123 $552,200 655,806 1,523,863 451,123 552,200 Respondent recomputed combined taxable" }, { "docid": "6139033", "title": "", "text": "income of the DISC. The parties do not differ with respect to the right of petitioner to deduct, in computing its taxable income for each year here in issue, the commission income of its DISC or that this commission income is to be computed under section 994(a). The difference between the parties is solely as to what constitutes the “combined taxable income” of petitioner and its DISC from qualified export sales. The precise issue is the cost to be used for the logs sold in determining this income. This issue arises because petitioner owns the land on which it grows timber and from which it cuts the logs exported and sold by its DISC for it on a commission basis, and petitioner has elected to consider the cutting of its timber as a sale or exchange of timber under section 631. All of the facts have been stipulated and are found accordingly- Petitioner is a corporation with its principal office in Longview, Wash. It keeps its books and files its tax returns on the basis of a fiscal year ended October 31. For each of its fiscal years 1972 and 1973, petitioner filed its Federal corporate income tax return with the Internal Revenue Service Center in Ogden, Utah. Petitioner’s principal business is the manufacture of paper and related products derived from wood fiber. For use in its manufacture, petitioner grows timber, principally Douglas fir and western hemlock trees. Typically, this. timber requires approximately 40 to 80 years to mature to the size for optimum marketing. Petitioner manages its timber crop on a sustained yield basis, coordinating harvest with growth so that timber can be indefinitely harvested from petitioner’s lands. During the last two decades, petitioner’s timber harvest has had a market value in excess of the amount that could be realized by petitioner from processing the timber in its own manufacturing operations. Consequently, petitioner has followed the practice of marketing its timber harvest at its highest market value and acquiring the wood fiber needed for its manufacturing operations from other sources. The timber cut in each of petitioner’s fiscal years" }, { "docid": "7786646", "title": "", "text": "as an accrual basis taxpayer, was required to accrue the amount of the refund as income in 1956 instead of when it was received in 1957. Section 446, I.R.C. 1954, provides that taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books. With respect to the accrual method of accounting, section 1.446-1 (c) (1) (ii), Income Tax Pegs., provides: (ii) Accrual method,. Generally, under an accrual method, income is to be included for the taxable year when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. Under such a method, deductions are allowable for the taxable year in which all the events have occurred which establish the fact of the liability giving rise to such deduction and the amount thereof can be determined with reasonable accuracy. The method used by the taxpayer in determining when income is to he accounted for will be acceptable if it accords with generally recognized and accepted income tax accounting principles and is consistently used by the taxpaper from year to year. On this record our analysis of all the evidence convinces us that the amount of petitioner’s refund was ascertainable with “reasonable accuracy” prior to December 31, 1956. Several cases hold that, once a right to receive income accrues and all events which fix the amount have occurred, an accrual basis taxpayer must report the income in the year the right accrued despite the necessity for mathematical computations or ministerial acts. Continental Tie & L. Co. v. United States, 286 U.S. 290 (1932); Cappel House Furnishing Co. v. United States, 244 F. 2d 525 (C.A. 6, 1957); and Marguardt Corporation, 39 T.C. 443 (1962). Certainly all events occurred in 1956 which fixed the right to receive the refund here involved. This is not disputed by either party. We are not persuaded by the petitioner’s argument that the amount of the refund could not have been determined with “reasonable accuracy” in 1956. While the word “accuracy”" }, { "docid": "10589119", "title": "", "text": "House and Senate committee reports: Where a DISC is attempting to establish a market abroad or seeking to maintain a market abroad, for exports, the Secretary of the Treasury may prescribe by regulations special rules governing the allocation of expenses incurred on the sale of the export property for purposes of determining the combined taxable income of the related person and the DISC. It is expected that in the appropriate cases the regulations will allow, for purposes of applying the pricing rule, the combined taxable income on the sale of export property to reflect a profit equal to that which the DISC and a related party would earn if they took into account only the marginal costs of producing the property. The production expenses not considered marginal costs in this case would, of course, be allocable to the production of the related party which is not sold to the DISC. [H. Rept. 92-533 (1971), 1972-1 C.B. 498, 538.] The congressional purpose behind the DISC provisions, argues petitioner, was to burden the gross receipts from the sale of export property. with the least amount of marginal costs possible and thereby maximize the 50-percent portion of combined taxable income deemed attributable to the DISC, thus maximizing the income qualifying for tax deferral. The most straightforward method of accomplishing this objective, petitioner reasons, is to define as narrowly as possible the product group or product line which includes the export sales property. Thus, concludes petitioner, the House and Senate committee reports state that the intercompany pricing rules are to be applied on a “product-by-product” or “product line” basis. As we have already discussed and rejected petitioner’s misinterpretation of the grouping provisions, we need not address petitioner’s repetition of this argument. However, we note that the excerpt from the House and Senate committee reports on which petitioner relies addresses the marginal costing method of computing an intercompany transfer price. The marginal costing method is not at issue. c. Whether section 1.861-8(e)(3), Income Tax Regs., as incorporated by section 1.994-l(c)(6), Income Tax Regs., is invalid to the extent it precludes sales of export property from" }, { "docid": "7786647", "title": "", "text": "accords with generally recognized and accepted income tax accounting principles and is consistently used by the taxpaper from year to year. On this record our analysis of all the evidence convinces us that the amount of petitioner’s refund was ascertainable with “reasonable accuracy” prior to December 31, 1956. Several cases hold that, once a right to receive income accrues and all events which fix the amount have occurred, an accrual basis taxpayer must report the income in the year the right accrued despite the necessity for mathematical computations or ministerial acts. Continental Tie & L. Co. v. United States, 286 U.S. 290 (1932); Cappel House Furnishing Co. v. United States, 244 F. 2d 525 (C.A. 6, 1957); and Marguardt Corporation, 39 T.C. 443 (1962). Certainly all events occurred in 1956 which fixed the right to receive the refund here involved. This is not disputed by either party. We are not persuaded by the petitioner’s argument that the amount of the refund could not have been determined with “reasonable accuracy” in 1956. While the word “accuracy” means exactness or precision, when used with “reasonable” it implies something less than an exact or completely accurate amount. Without attempting to attach any definite or restrictive meaning to the words “reasonable accuracy,” which might hinder both taxpayers and the Commissioner of Internal Revenue, we think it is sufficient to say that the approximate amounts in the Chevrolet and Buick Funds were ascertainable prior to December 31, 1956. See Patrick McGuirl, Inc. v. Commissioner, 74 F. 2d 729 (C.A. 2, 1935), certiorari denied 295 I7.S. 748. This is borne out by the testimony of the witnesses from the advertising agencies who maintained the dealer accounts. They testified, as did a representative of the Chevrolet advertising office, that if the petitioner had made an inquiry before December 31, 1956, they not only could, but would, have given a reasonably accurate estimate of the amounts of its refunds. One witness testified that he could have estimated the amount of the balance in petitioner’s Chevrolet account as of November 30, 1956, within $2. The witness who testified about" } ]

[ { "docid": "4745404", "title": "", "text": "the provisions of this title.” While that section gives this court the authority to issue equitable relief in this matter, the EWC has not made the showings required to support an injunction. To qualify for injunctive relief under 11 U.S.C. § 105, the movant must show: (1) irreparable harm to the estate; (2) likelihood of a successful reorganization; (3) no harm or minimal harm to the other party; and (4) a balancing of the public interest. Southern Monorail Co. v. Robins and Meyers, Inc., 666 F.2d 185 (5th Cir.1982); In re Monroe Well Service, Inc., 67 B.R. 746 (Bkrtcy.E.D.Pa.1986); In re Otero Mills, Inc., 21 B.R. 777 (Bkrtcy.D.N.M.), aff'd, 25 B.R. 1018 (D.N.M.1982). While the EWC may have met its showing on the first element by demonstrating that the estate’s funds will be entirely depleted if it is required to begin environmental corrective action, it has failed to satisfy the other elements necessary for the issuance of in-junctive relief. A reasonable likelihood of successful reorganization has not been shown. EWC states that it hopes to reopen the landfill and that reopening may be its only means through which reorganization may be achieved. However, the landfill was permanently closed as a result of this court’s ruling in the RCRA case. The closure was affirmed by the Seventh Circuit. EWC’s sole hope of reopening appears to lie with its writ of certiorari to the United States Supreme Court. This hope does not demonstrate a strong likelihood that EWC will be able to reorganize by reopening the landfill. The balance of harms counsels denial of the injunction. The EPA and IDEM would suffer substantial harm by an injunction in the delay in corrective action as the groundwater moves inexorably beneath and beyond the landfill. STOP and the citizens which it represents (particularly area residents) also would suffer significant, and perhaps irreparable, harm as the contamination at the landfill spreads. Finally, the public interest would be dis-served by any further delay in corrective action at the landfill. More than two years has passed since the decision in the RCRA case and little has been" } ]

[ { "docid": "3264549", "title": "", "text": "to complete the project, and will have large claims come due to his various bonding companies. This contention is consistent with his testimony at trial, and the court credits it. The court also notes that the Office of the United States Trustee has sought to dismiss Full-mer’s case, or convert it to a chapter 7, with the main argument being that Full-mer has not been able to show profitable operations. The reason for that, in turn, is that Acton breached his obligations to pay Fullmer. As a consequence, the extension of this litigation, through a stay pending appeal, would substantially harm Fullmer by depriving him of the ability to reorganize. This is injury that is hard to quantify. While the cost of the project may be quantifiable, there is more than just cost at stake. Fullmer’s reputation and ability to bid successfully for future jobs is also at issue; that is the essence of his individual chapter 11 reorganization case. In a pending motion to approve entry into a new contract for sale, Fullmer has attempted to demonstrate that such a resale contract is in the best interests of the estate. The intangible and difficult to calculate aspects of these injuries also militate in favor of setting no bond, since the injuries that would flow from Fullmer’s loss of the ability to reorganize are injuries that cannot be counted with any certainty. D. Public Interest The interest of the public in a stay pending appeal is slight. In the context of preliminary injunctions, from which this factor is borrowed, considerations of the public interest involve testing whether the relief requested would affect the public at large, as opposed to the immediate parties to the appeal. In re Richmond Metal Finishers, Inc., 36 B.R. 270, 273 (Bankr.E.D.Va.1984). Examples would include injunctions against labor strife that affected more than just the immediate parties, such as the strike by a municipal bus drivers’ union, or an injunction against a polluter of a local river. To the extent that the public interest has been considered in the bankruptcy context, courts have identified the achievement" }, { "docid": "13732048", "title": "", "text": "Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). Collateral estoppel principles apply to dischargeability proceedings. Grogan v. Garner, 498 U.S. 279, 285 n. 11, 111 S.Ct. 654, 658 n. 11, 112 L.Ed.2d 755 (1991). If the prior judgment was rendered by a state court, then the collateral estoppel law of that state must be applied to determine the judgment’s preclusive effect. In re Touchstone, 149 B.R. 721, 725 (Bankr.S.D.Fla.1993). St. Laurent, 991 F.2d at 675. See also Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). In Meggs v. Booth, the prior judgment was rendered in state court, so Alabama law defines collateral estoppel. Alabama’s ease law shows the elements necessary for collateral estoppel are the following: (1) the second action must involve an issue identical to the one litigated in the earlier action; (2) the issue must have been actually litigated in the earlier action; (3) the resolution of the issue must have been necessary to the judgment in the earlier action; and (4) the same parties must be involved in the two actions. See Benetton S.p.A v. Benedot, Inc., 642 So.2d 394 (Ala.1994) (Element 1 was not present: Not identical issue — Prior: preliminary injunction. Present: Fraud); Dairyland Insurance Co. v. Jackson, 566 So.2d 723 (Ala.1990) (Element 4 was not present: Not same parties — Prior: Passenger against Driver J of other car in accident — Present: Driver J against driver’s uninsured motorist insurance carrier); Dixie National Life Insurance Co. v. McWhorter (Matter of McWhorter), 887 F.2d 1564 (11th Cir.1989) (Element 1 not present: Not identical issue — Prior: 18 policyholders recovered against insurance company on finding that company ratified or approved salesman’s misrepresentation. Present: other policy holders sued.); North Alabama Anesthesiology Group, P.C. v. Zickler (In re North Alabama Anesthesiology Group, P.C.), 154 B.R. 752 (N.D.Ala.1993) (all four elements satisfied); Pierce v. Rummell, 535 So.2d 594 (Ala.1988) (Element 1—identical issues, and Element 3—resolution of the issue was necessary to prior judgment not present); and Lott v. Toomey, 477 So.2d 316 (Ala.1985) (Element" }, { "docid": "3264548", "title": "", "text": "this increased level of participation and protection, and given this court’s view that irreparable injury cannot be shown solely from the possibility that an appeal may be moot, Acton has thus not established that denial of a stay will cause him irreparable injury. C. Substantial Injury to Fullmer Fullmer contends that a stay pending appeal will cause him substantial injury in the form of deprivation of the ability to reorganize. In the analogous context of injunctions against creditors’ actions against chapter 11 insiders necessary for the debtor’s business, courts have found that the loss of the ability to reorganize is essentially irreparable injury. In re Monroe Well Serv., Inc., 67 B.R. 746, 752-53 (Bankr.E.D.Pa.1986). See also North Ala. Anesthesiology Group, P.C. v. Zickler (In re North Ala. Anesthesiology Group, P.C.), 154 B.R. 752, 764 (N.D.Ala.1993); In re Environmental Waste Control, Inc., 125 B.R. 546, 551 (N.D.Ind.1991); 2 Collier on Bankruptcy ¶ 105.02[2] (15th rev. ed.2005). Here, Fullmer contends that if he is not able to resell the land to another individual, he will be unable to complete the project, and will have large claims come due to his various bonding companies. This contention is consistent with his testimony at trial, and the court credits it. The court also notes that the Office of the United States Trustee has sought to dismiss Full-mer’s case, or convert it to a chapter 7, with the main argument being that Full-mer has not been able to show profitable operations. The reason for that, in turn, is that Acton breached his obligations to pay Fullmer. As a consequence, the extension of this litigation, through a stay pending appeal, would substantially harm Fullmer by depriving him of the ability to reorganize. This is injury that is hard to quantify. While the cost of the project may be quantifiable, there is more than just cost at stake. Fullmer’s reputation and ability to bid successfully for future jobs is also at issue; that is the essence of his individual chapter 11 reorganization case. In a pending motion to approve entry into a new contract for sale, Fullmer has" }, { "docid": "3264550", "title": "", "text": "attempted to demonstrate that such a resale contract is in the best interests of the estate. The intangible and difficult to calculate aspects of these injuries also militate in favor of setting no bond, since the injuries that would flow from Fullmer’s loss of the ability to reorganize are injuries that cannot be counted with any certainty. D. Public Interest The interest of the public in a stay pending appeal is slight. In the context of preliminary injunctions, from which this factor is borrowed, considerations of the public interest involve testing whether the relief requested would affect the public at large, as opposed to the immediate parties to the appeal. In re Richmond Metal Finishers, Inc., 36 B.R. 270, 273 (Bankr.E.D.Va.1984). Examples would include injunctions against labor strife that affected more than just the immediate parties, such as the strike by a municipal bus drivers’ union, or an injunction against a polluter of a local river. To the extent that the public interest has been considered in the bankruptcy context, courts have identified the achievement of reorganization as a public interest worthy of protection. In re Convenience USA, Inc., 290 B.R. 558, 568 (Bankr.M.D.N.C.2003); In re Richmond Metal Finishers, Inc., 36 B.R. at 273; First Pennsylvania Bank N.A. v. Intermet Realty P’ship (In re Intermet Realty P’ship), 27 B.R. 938, 940 (Bankr.E.D.Pa.1983). Here, the public interest favors allowing Fullmer to return to his reorganization effort and try to return the property at issue to productive use. E. Balancing the Equities On balance, Fullmer prevails. He is likely to prevail on appeal and will suffer substantial injury if a stay is put in place pending the appeal. While Acton’s argument that land is unique has some superficial appeal, it is clear that conveyance of the land is not the only action sought to be specifically performed, and this court has already indicated that it would not supervise Fullmer in the completion of his duties under the Contract. To the extent consideration of the public interest is implicated, it also favors Fullmer in his efforts to reorganize. III. Conclusion The relevant factors" }, { "docid": "3264545", "title": "", "text": "an agreement to sell real property cannot be adequately compensated by monetary damages. See Stoltz v. Grimm, 100 Nev. 529, 533, 689 P.2d 927, 930 (Nev.1984); Carcione v. Clark, 96 Nev. 808, 811, 618 P.2d 346, 348 (Nev.1980). But Acton did not request specific performance in the form of a simple conveyance of land; instead, his complaint requested that Fullmer be ordered to complete his not-insubstantial duties under the Contract, and then convey the property. As noted above, even had Acton proved his case for breach, the court would not have entered an order for specific performance of the construction contract. See Carcione, 96 Nev. at 811, 618 P.2d at 348 (specific performance only available when “the court is willing to order it.”). Thus, the denial of a stay at this point would not result in injury to Acton since he would not have received the requested relief even had he prevailed on the merits of his breach claim. In addition, Acton alleges that failure to grant a stay will result in his permanent loss of the ability to acquire the Property, and that any subsequent sale by Fullmer will effectively moot his appeal, thus irreparably injuring him. Although the issue is not free from doubt, the majority of cases that have considered the issue have held that the risk that an appeal may become moot does not by itself constitute irreparable injury. In re Convenience USA, Inc., 290 B.R. 558, 563 (Bankr.M.D.N.C.2003); In re Sunflower Racing, Inc., 223 B.R. 222 (D.Kan.1998); In re 203 N. LaSalle St. Partnership, 190 B.R. 595 (N.D.Ill.1995); In re Best Prods. Co., 177 B.R. 791 (S.D.N.Y.1995); In re Moreau, 135 B.R. 209 (N.D.N.Y.1992); In re Asheville Bldg. Assocs. v. Carlyle Real Estate Limited Partnership, VIII, 93 B.R. 920 (W.D.N.C.1988); In re Kent, 145 B.R. 843 (Bankr.E.D.Va.1991); In re The Charter Co., 72 B.R. 70 (Bankr.M.D.Fla.1987); In re Great Barrington Fair & Amusement, Inc., 53 B.R. 237 (Bankr.D.Mass.1985); In re Baldwin United Corp., 45 B.R. 385 (Bankr.S.D.Ohio 1984). But see In re Country Squire Assocs. of Carle Place, L.P., 203 B.R. 182 (2d Cir. BAP" }, { "docid": "3264546", "title": "", "text": "of the ability to acquire the Property, and that any subsequent sale by Fullmer will effectively moot his appeal, thus irreparably injuring him. Although the issue is not free from doubt, the majority of cases that have considered the issue have held that the risk that an appeal may become moot does not by itself constitute irreparable injury. In re Convenience USA, Inc., 290 B.R. 558, 563 (Bankr.M.D.N.C.2003); In re Sunflower Racing, Inc., 223 B.R. 222 (D.Kan.1998); In re 203 N. LaSalle St. Partnership, 190 B.R. 595 (N.D.Ill.1995); In re Best Prods. Co., 177 B.R. 791 (S.D.N.Y.1995); In re Moreau, 135 B.R. 209 (N.D.N.Y.1992); In re Asheville Bldg. Assocs. v. Carlyle Real Estate Limited Partnership, VIII, 93 B.R. 920 (W.D.N.C.1988); In re Kent, 145 B.R. 843 (Bankr.E.D.Va.1991); In re The Charter Co., 72 B.R. 70 (Bankr.M.D.Fla.1987); In re Great Barrington Fair & Amusement, Inc., 53 B.R. 237 (Bankr.D.Mass.1985); In re Baldwin United Corp., 45 B.R. 385 (Bankr.S.D.Ohio 1984). But see In re Country Squire Assocs. of Carle Place, L.P., 203 B.R. 182 (2d Cir. BAP 1996); In re St. Johnsbury Trucking Co., 185 B.R. 687 (S.D.N.Y.1995); In re Advanced Mining Sys., Inc., 173 B.R. 467 (S.D.N.Y.1994); In re Grandview Estates Assocs., Ltd., 89 B.R. 42 (Bankr.W.D.Mo.1988). Here, denial of the stay results only in a potentially moot appeal if Fullmer can make the required showings under Section 363(b) to enable him to resell the property to someone else. Acton will have the status of a party in interest with respect to any such request and will be able to make his arguments then as to why resale would not be in the best interests of the estate. If unsuccessful, however, Acton will have something that most disappointed buyers at common law do not have: the benefit of a court ruling that resale is in the best interests of the seller. In this situation, Acton has more protection and opportunity to be heard than in the normal case of the disappointed buyer; he will have the benefit of notice and a hearing that the land at issue will be sold. Given" }, { "docid": "3264514", "title": "", "text": "and 8005, not the more mechanical provisions of Rule 62(d). There are thus four elements to consider: (1) Acton’s likelihood of success on the merits; (2) whether Acton will be irreparably injured; (3) whether issuance of the stay will substantially injure Full-mer; and (4) where the public interest lies. In applying these factors, the court is mindful that a discretionary stay pending appeal is viewed as an extraordinary remedy. Minor Metals, Inc. v. United States, 38 Fed.Cl. 379 (1997). II. Application of the Four Factors Related to Equitable Relief A Acton’s Success on the Merits 1. Background on the Trial During the trial, the court found that the Contract initially obligated Fullmer to sell and Acton to buy real property in the northwest area of the greater Las Vegas metropolitan area. Both parties testified, as did Christopher White, who was Acton’s and Fullmer’s real estate broker (“White”). Testimony was also received from three individuals, Adam Knecht, Karl Wolff and Louis Hillegas, who purchased land from Fullmer adjacent to the land covered by the Contract under terms virtually identical to those in the Contract. After consideration of the testimony and the pleadings, including the post-trial briefs, the court denied the relief requested by Acton, and entered judgment in favor of debtor and defendant, Fullmer. Further, pursuant to Fullmer’s request made at the conclusion of the trial, the pleadings were deemed amended to conform to proof at trial under Rule 7015. Pursuant to this amendment, Fullmer was deemed to have counterclaimed against Acton for declaratory relief to the effect that Acton was in material breach of the Contract, and that Fullmer’s obligations under the contract were terminated. The court found for Fullmer on this counterclaim, and entered judgment thereon. 2. Background on the Contract Fullmer is a general contractor. Before filing this chapter 11 case, he owned property he wished to develop into four residential lots. Fullmer had signed contracts to sell those lots for $100,000 each. After Fullmer filed his case, he moved to reject those contracts under Section 365, since by then the purchase prices were below market rates. That" }, { "docid": "3264543", "title": "", "text": "in the Addendum was seasonably provided. There was, in short, a “successful subdivision,” thereby entitling Fullmer to set a closing date that triggered Acton’s obligation to deliver the remainder of the purchase price. When Acton did not pay the purchase price, and instead elected to file his action for specific performance, he, not Fullmer, breached the Contract. The court thus denied the relief sought by Acton. In addition, the court granted Fullmer his requested relief for a determination that Acton’s conduct was a material breach of Contract. Clearly, failure to pay the purchase price when due is a material breach of any contract. See Young Elec. Sign Co. v. Fohrman, 86 Nev. 185, 188, 466 P.2d 846, 847 (Nev.1970). Upon material breach, the non-breaching party may elect to suspend performance, may elect to cancel the contract, or may elect to terminate the contract and sue for damages. Goldston v. AMI Investments, Inc., 98 Nev. 567, 569, 655 P.2d 521, 523 (Nev.1982) (“A seller of land pursuant to a contract of sale is justified in cancelling the contract if the purchaser has failed to perform a material part of the contract which is a condition concurrent or precedent to the seller’s obligations to perform.... Failure to tender timely performance can constitute a material breach of contract.”); Restatement (SeCONb) OF CONTRACTS § 237 (1981). Fullmer chose the middle option: cancellation of the Contract. Accordingly, this court entered its judgment on Full-mer’s counterclaim to the effect that the Contract had been canceled, and that Full-mer was thereby free to resell the property. In addition, the court ordered that Acton’s lis pendens be expunged. B. Irreparable Injury Even though he has little likelihood of success on the merits, Acton argues that the other factors regarding a stay pending appeal favor his case. He is wrong. Initially, Acton claims that land is unique, and that the refusal to issue a stay will irreparably injure him through the loss of the ability to buy the land at issue. He is undoubtedly correct that Nevada law historically has treated land as unique, and thus a breach of" }, { "docid": "3264544", "title": "", "text": "the contract if the purchaser has failed to perform a material part of the contract which is a condition concurrent or precedent to the seller’s obligations to perform.... Failure to tender timely performance can constitute a material breach of contract.”); Restatement (SeCONb) OF CONTRACTS § 237 (1981). Fullmer chose the middle option: cancellation of the Contract. Accordingly, this court entered its judgment on Full-mer’s counterclaim to the effect that the Contract had been canceled, and that Full-mer was thereby free to resell the property. In addition, the court ordered that Acton’s lis pendens be expunged. B. Irreparable Injury Even though he has little likelihood of success on the merits, Acton argues that the other factors regarding a stay pending appeal favor his case. He is wrong. Initially, Acton claims that land is unique, and that the refusal to issue a stay will irreparably injure him through the loss of the ability to buy the land at issue. He is undoubtedly correct that Nevada law historically has treated land as unique, and thus a breach of an agreement to sell real property cannot be adequately compensated by monetary damages. See Stoltz v. Grimm, 100 Nev. 529, 533, 689 P.2d 927, 930 (Nev.1984); Carcione v. Clark, 96 Nev. 808, 811, 618 P.2d 346, 348 (Nev.1980). But Acton did not request specific performance in the form of a simple conveyance of land; instead, his complaint requested that Fullmer be ordered to complete his not-insubstantial duties under the Contract, and then convey the property. As noted above, even had Acton proved his case for breach, the court would not have entered an order for specific performance of the construction contract. See Carcione, 96 Nev. at 811, 618 P.2d at 348 (specific performance only available when “the court is willing to order it.”). Thus, the denial of a stay at this point would not result in injury to Acton since he would not have received the requested relief even had he prevailed on the merits of his breach claim. In addition, Acton alleges that failure to grant a stay will result in his permanent loss" }, { "docid": "13721816", "title": "", "text": "reorganization is entitled to preclusive effect on all claims or issues which were raised or could have been raised in the confirmation proceedings); Howe v. Vaughn (In re Howe), 913 F.2d 1138 (5th Cir.1990) (debtors could have brought lender liability claims in a previous bankruptcy case which concluded in a confirmed plan, so res judicata applied to bar claims after confirmation); North Alabama Anesthesiology Group, P.C. v. Zickler (In re North Alabama Anesthesiology Group, P.C.), 154 B.R. 752 (N.D.Ala.1993) (plan releasing nondebtor guarantors was binding on creditors as res judicata); Martin v. United States (In re Martin), 150 B.R. 43 (Bankr. S.D.Cal.1993) (IRS bound by debt collection procedures of plan even though debt was nondischargeable); In re Moussa, 95 B.R. 449 (Bankr.N.D.Tex.1989) (provisions of plan preempts time limits of Fed.R.Bankr.P. 4004(a)); Wayne H. Coloney Co., Inc. v. United States (In re Wayne H. Coloney Co., Inc.), 89 B.R. 924 (Bankr.N.D.Fla.1988) (although debtor cannot normally sever and assume part of a contract and reject the remainder, if the confirmed plan so provides, res judicata precludes challenge); City National Bank of Miami v. General Coffee Corp. (In re General Coffee Corp.), 85 B.R. 905 (Bankr.S.D.Fla.1988) (questions of court’s authority to enter confirmation order is res judicata); In re 12th & N Joint Venture, 63 B.R. 36 (Bankr.D.D.C.1986) (jurisdictional provisions of a plan preempts termination of the automatic stay); In re St. Louis Freight Lines, Inc., 45 B.R. 546 (Bankr.E.D.Mich.1984) (plan is binding on creditors receiving less under the plan than legally entitled to); But see Union Carbide Corp. v. Newboles, 686 F.2d 593 (7th Cir.1982) (court did not have authority to discharge guarantors of obligations despite provision in plan; res judicata was not discussed in the opinion); In re Davis Broadcasting, Inc., No. 94-42-COL, slip op. at 2 (M.D.Ga. Aug. 1, 1994) (same). Accordingly, both applicable provisions of the Bankruptcy Code and Rules, and case law precedent provide that orders confirming plans of reorganization are binding on all claims which were, or could have been, raised at the confirmation hearing. The grounds by which a confirmed plan may be attacked other than" }, { "docid": "3264551", "title": "", "text": "of reorganization as a public interest worthy of protection. In re Convenience USA, Inc., 290 B.R. 558, 568 (Bankr.M.D.N.C.2003); In re Richmond Metal Finishers, Inc., 36 B.R. at 273; First Pennsylvania Bank N.A. v. Intermet Realty P’ship (In re Intermet Realty P’ship), 27 B.R. 938, 940 (Bankr.E.D.Pa.1983). Here, the public interest favors allowing Fullmer to return to his reorganization effort and try to return the property at issue to productive use. E. Balancing the Equities On balance, Fullmer prevails. He is likely to prevail on appeal and will suffer substantial injury if a stay is put in place pending the appeal. While Acton’s argument that land is unique has some superficial appeal, it is clear that conveyance of the land is not the only action sought to be specifically performed, and this court has already indicated that it would not supervise Fullmer in the completion of his duties under the Contract. To the extent consideration of the public interest is implicated, it also favors Fullmer in his efforts to reorganize. III. Conclusion The relevant factors indicate that Full-mer would suffer more injury and damage by a stay than would Acton, and that Fullmer has a better chance of a positive outcome on appeal. Accordingly, this court will deny Acton’s request to stay the proceedings here pending appeal. A separate order under Bankruptcy Rule 9021 will be entered concurrently. . As summarized by the late Professor Farns-worth: The fact that one gives the matter no thought does not impair the effectiveness of one’s assent, for there is no requirement that one intend or even understand the legal consequences of one's actions. For example, one who signs a writing may be bound by it, even though one neither reads it nor considers the legal consequence of signing it. This rule, making a party's intention to be legally bound irrelevant, has the salutary effects of generally relieving each party to a dispute of the burden of showing the other’s state of mind in that regard and of helping to uphold routine agreements. 1 E. Allan Farnsworth, Farnsworth on Contracts § 3.7 (2d ed.2001)." }, { "docid": "3264547", "title": "", "text": "1996); In re St. Johnsbury Trucking Co., 185 B.R. 687 (S.D.N.Y.1995); In re Advanced Mining Sys., Inc., 173 B.R. 467 (S.D.N.Y.1994); In re Grandview Estates Assocs., Ltd., 89 B.R. 42 (Bankr.W.D.Mo.1988). Here, denial of the stay results only in a potentially moot appeal if Fullmer can make the required showings under Section 363(b) to enable him to resell the property to someone else. Acton will have the status of a party in interest with respect to any such request and will be able to make his arguments then as to why resale would not be in the best interests of the estate. If unsuccessful, however, Acton will have something that most disappointed buyers at common law do not have: the benefit of a court ruling that resale is in the best interests of the seller. In this situation, Acton has more protection and opportunity to be heard than in the normal case of the disappointed buyer; he will have the benefit of notice and a hearing that the land at issue will be sold. Given this increased level of participation and protection, and given this court’s view that irreparable injury cannot be shown solely from the possibility that an appeal may be moot, Acton has thus not established that denial of a stay will cause him irreparable injury. C. Substantial Injury to Fullmer Fullmer contends that a stay pending appeal will cause him substantial injury in the form of deprivation of the ability to reorganize. In the analogous context of injunctions against creditors’ actions against chapter 11 insiders necessary for the debtor’s business, courts have found that the loss of the ability to reorganize is essentially irreparable injury. In re Monroe Well Serv., Inc., 67 B.R. 746, 752-53 (Bankr.E.D.Pa.1986). See also North Ala. Anesthesiology Group, P.C. v. Zickler (In re North Ala. Anesthesiology Group, P.C.), 154 B.R. 752, 764 (N.D.Ala.1993); In re Environmental Waste Control, Inc., 125 B.R. 546, 551 (N.D.Ind.1991); 2 Collier on Bankruptcy ¶ 105.02[2] (15th rev. ed.2005). Here, Fullmer contends that if he is not able to resell the land to another individual, he will be unable" }, { "docid": "3264513", "title": "", "text": "will protect the rights of all parties in interest. Courts in the Ninth and other circuits have construed this rule to incorporate essentially the same standards as applicable under Rule 62(c). In re Universal Life Church, Inc., 191 B.R. 433, 444 (E.D.Cal.1995), aff'd in part and dismissed in part, 128 F.3d 1294 (9th Cir.1997), cert. denied, 524 U.S. 952, 118 S.Ct. 2367, 141 L.Ed.2d 736 (1998). See also Hunt v. Bankers Trust Co., 799 F.2d 1060, 1067 (5th Cir.1986); Virginia Dep’t of Med. Assistance Servs. v. Shenandoah Realty Partners, L.P. (In re Shenandoah Realty Partners, L.P.), 248 B.R. 505 (W.D.Va.2000); In re Holtmeyer, 229 B.R. 579, 581 (E.D.N.Y.1999); In re Bradford, 192 B.R. 914, 917 (E.D.Tenn.1996); Beneficial Homeowner Service Corp. v. Moreau (In re Moreau) 135 B.R. 209 (N.D.N.Y.1992); In re Edwards, 228 B.R. 573, 575 (Bankr.E.D.Pa.1999); In re Great Barrington Fair & Amusement, Inc., 53 B.R. 237 (Bankr.D.Mass.1985); 10 Collier on Bankruptcy ¶ 8005.7 (15th rev. ed.2005). Accordingly, I have to assess Acton’s request for a stay under the discretionary standards of Rule 62(c) and 8005, not the more mechanical provisions of Rule 62(d). There are thus four elements to consider: (1) Acton’s likelihood of success on the merits; (2) whether Acton will be irreparably injured; (3) whether issuance of the stay will substantially injure Full-mer; and (4) where the public interest lies. In applying these factors, the court is mindful that a discretionary stay pending appeal is viewed as an extraordinary remedy. Minor Metals, Inc. v. United States, 38 Fed.Cl. 379 (1997). II. Application of the Four Factors Related to Equitable Relief A Acton’s Success on the Merits 1. Background on the Trial During the trial, the court found that the Contract initially obligated Fullmer to sell and Acton to buy real property in the northwest area of the greater Las Vegas metropolitan area. Both parties testified, as did Christopher White, who was Acton’s and Fullmer’s real estate broker (“White”). Testimony was also received from three individuals, Adam Knecht, Karl Wolff and Louis Hillegas, who purchased land from Fullmer adjacent to the land covered by the Contract under" }, { "docid": "3264538", "title": "", "text": "Contract. Finally, all the purchasers but Acton testified that they understood that Fullmer needed the balance of their purchase price to complete the necessary improvements. There was testimony that this need was publicly stated at the auction just preceding the court’s approval of the sale. White confirmed this testimony. The witnesses also testified that such an understanding was somewhat contrary to normal practice. Typically, the contractor uses other funds — his own, or a construction loan — to install such improvements, and the purchase price then either reimburses the contractor or pays off the construction loan. But such practices can vary, and the testimony provided three reasons why it varied in this case. First, the court credits the testimony that all purchasers, including Acton, were told that the balance of their funds was necessary to complete the improvements. Second, the purchasers were compensated for such variance by receiving prices that were somewhat below market; indeed, two of the purchasers have subsequently listed their lots for prices in excess of $240,000, and there was testimony that before the Addendum was signed, one of the purchasers offered to buy Acton’s parcel for $200,000. Finally, the court’s order approving the sales explicitly required Full-mer to complete all improvements without regard to timing; that is, the court’s order superseded the normal custom that the developer’s obligations to install improvements ended on the date of conveyance, and required him to complete the improvements. Against this background, the court finds that the term “successful subdivision” in the Contract meant the date that the subdivision map was recorded, and that Acton, not Fullmer, was in breach for the actions taken after the Addendum was signed. As a consequence, Fullmer should prevail on the merits. But there is one additional reason that Fullmer should prevail. 5. Undue Supervision Finally, even if Acton were to prevail on all of his points, this court would not enter a decree of specific performance. Acting in equity, courts have the discretion to decline to order specific performance when such an order would require undue supervision by the court in ensuring compliance with" }, { "docid": "13721815", "title": "", "text": "and was not appealed. Republic, in effect, is now seeking to appeal the confirmed Plan and asking us to review it on its merits. Questions of the propriety or legality of the bankruptcy court confirmation order are indeed properly addressable on direct appeal. Republic, however, is now foreclosed from that avenue of review because it chose not to pursue it. The issue before us in this appeal is the application, not the interpretation, of the Plan. Republic Supply at 1050. Therefore, the contents of a plan of reorganization may not be challenged on the grounds that the plan’s provisions are contrary to applicable law absent an appeal. Laing v. Johnson (In re Laing), 31 F.3d 1050 (10th Cir.1994) (stipulation of nondis-chargeability of debt made in a confirmed Chapter 11 plan could not be relitigated upon conversion of case to Chapter 7); Wallis v. Justice Oaks II, Ltd. (In re Justice Oaks II, Ltd.), 898 F.2d 1544 (11th Cir.1990), cert. denied, 498 U.S. 959, 111 S.Ct. 387, 112 L.Ed.2d 398 (1990) (order confirming a plan of reorganization is entitled to preclusive effect on all claims or issues which were raised or could have been raised in the confirmation proceedings); Howe v. Vaughn (In re Howe), 913 F.2d 1138 (5th Cir.1990) (debtors could have brought lender liability claims in a previous bankruptcy case which concluded in a confirmed plan, so res judicata applied to bar claims after confirmation); North Alabama Anesthesiology Group, P.C. v. Zickler (In re North Alabama Anesthesiology Group, P.C.), 154 B.R. 752 (N.D.Ala.1993) (plan releasing nondebtor guarantors was binding on creditors as res judicata); Martin v. United States (In re Martin), 150 B.R. 43 (Bankr. S.D.Cal.1993) (IRS bound by debt collection procedures of plan even though debt was nondischargeable); In re Moussa, 95 B.R. 449 (Bankr.N.D.Tex.1989) (provisions of plan preempts time limits of Fed.R.Bankr.P. 4004(a)); Wayne H. Coloney Co., Inc. v. United States (In re Wayne H. Coloney Co., Inc.), 89 B.R. 924 (Bankr.N.D.Fla.1988) (although debtor cannot normally sever and assume part of a contract and reject the remainder, if the confirmed plan so provides, res judicata precludes challenge);" }, { "docid": "3264515", "title": "", "text": "terms virtually identical to those in the Contract. After consideration of the testimony and the pleadings, including the post-trial briefs, the court denied the relief requested by Acton, and entered judgment in favor of debtor and defendant, Fullmer. Further, pursuant to Fullmer’s request made at the conclusion of the trial, the pleadings were deemed amended to conform to proof at trial under Rule 7015. Pursuant to this amendment, Fullmer was deemed to have counterclaimed against Acton for declaratory relief to the effect that Acton was in material breach of the Contract, and that Fullmer’s obligations under the contract were terminated. The court found for Fullmer on this counterclaim, and entered judgment thereon. 2. Background on the Contract Fullmer is a general contractor. Before filing this chapter 11 case, he owned property he wished to develop into four residential lots. Fullmer had signed contracts to sell those lots for $100,000 each. After Fullmer filed his case, he moved to reject those contracts under Section 365, since by then the purchase prices were below market rates. That motion was ultimately granted. Freed from these pre-petition contracts, Fullmer then sought to resell the four lots. There was a small problem, however. The lots did not have APN designations (Assessor’s Parcel Numbers), and thus under applicable state law Fullmer could not convey the lots individually. Instead, Full-mer, through White, a real estate salesperson, took offers on the lots, with the understanding that they would be subdivided according to Fullmer’s preliminary plans. Within 48 hours of this decision, White had four offers of $160,000 each, one of which was Acton’s. Offers on the other three lots were made by Adam Knecht, Karl Wolff and Louis Hillegas, and, as applicable, their respective spouses. As indicated above, each of these individuals testified at trial. Each offer was prepared by White, and each was signed by the prospective purchasers. More importantly for this case, each offer contained the following condition: Buyer will be given 10 days to close escrow and purchase lot from the day they [sic ] receive written notice of successful subdivision. This language proved to" }, { "docid": "3264507", "title": "", "text": "proceeding against Fullmer for specific performance of Fullmer’s obligations to improve the land, and for a conveyance of the land after the price was paid. To preserve his right, Acton also immediately filed a lis pendens against the land. Trial on this adversary proceeding was held on March 5, 2005. Each side filed post-trial briefs on March 11, 2005. The court entered judgment for Fullmer and against Acton on March 25, 2005. A written opinion setting for the grounds for this judgment was also entered on that date. Following entry of judgment, Fullmer has moved: (1) to expunge the lis pendens; (2) for authority to sell the land at issue to another person; and (3) for attorneys’ fees due him under the terms of the Contract. Acton filed his notice of appeal on March 30, 2005. By this application, Acton seeks to stay or prevent items (1) and (2) above. Despite the filing of a notice of appeal, this court has jurisdiction to hear Acton’s motion. Ho v. Dai Hwa Elec. (In re Ho), 265 B.R. 603 (9th Cir. BAP 2001). I. Applicability of Rules 7062 and 8005 This action arises out of an adversary proceeding, and thus the 7000 series of rules of the Federal Rules of Bankruptcy Procedure apply. Rule 7062, in turn, incorporates the provisions of Rule 62 of the Federal Rules of Civil Procedure. Acton believes that Rule 62(d) applies to this case. That rule states: (d) Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the court. In this regard, Acton asserts that a stay is his right under Rule 62(d) upon posting of an appropriate bond. See, e.g., 11 CHARLES A. WRIGHT, ARTHUR R. MlLLER & Mary Kay KAne, Federal Practice and Procedure" }, { "docid": "3264552", "title": "", "text": "indicate that Full-mer would suffer more injury and damage by a stay than would Acton, and that Fullmer has a better chance of a positive outcome on appeal. Accordingly, this court will deny Acton’s request to stay the proceedings here pending appeal. A separate order under Bankruptcy Rule 9021 will be entered concurrently. . As summarized by the late Professor Farns-worth: The fact that one gives the matter no thought does not impair the effectiveness of one’s assent, for there is no requirement that one intend or even understand the legal consequences of one's actions. For example, one who signs a writing may be bound by it, even though one neither reads it nor considers the legal consequence of signing it. This rule, making a party's intention to be legally bound irrelevant, has the salutary effects of generally relieving each party to a dispute of the burden of showing the other’s state of mind in that regard and of helping to uphold routine agreements. 1 E. Allan Farnsworth, Farnsworth on Contracts § 3.7 (2d ed.2001). . If valid, of course, Acton would have no cause of action for breach. With the concession that lots were \"being sold with out all work being finished,” Acton would be contractually bound to accept that Fullmer’s demand for final payment was timely. . Yet another interpretation of the Contract would have the Addendum serve as proof of Acton's adequate assurance of future performance; that is, upon Acton's balking at closing, Fullmer requested and received adequate assurance in the form of the Addendum. This interpretation would also not require consideration for the request (since Acton was already bound by the implied obligation to provide such adequate assurance), but Nevada has yet to rule as to whether such an implied obligation exists in contracts governed by the common law. See Norcon Power Partners, L.P. v. Niagara Mohawk Power Corp., 92 N.Y.2d 458, 682 N.Y.S.2d 664, 705 N.E.2d 656 (1998) (finding obligation to provide adequate assurance of future performance a part of the common law); Restatement (Second) of Contracts § 251 (1981). . Alternatively, the Addendum can" }, { "docid": "3264506", "title": "", "text": "AMENDED AND RESTATED OPINION ON REQUEST FOR STAY PENDING APPEAL Scott Acton (“Acton”) applies for a stay pending appeal of this court’s judgment denying him specific performance of a land sale contract (“Contract”). Specifically, he seeks a stay of this court’s order that his lis pendens against the property subject to the Contract be expunged. The court will deny Acton’s application. Patrick Fullmer (“Fullmer”) filed a Chapter 11 case in October of 2003. As explained below, part of the reason for Fullmer’s filing was to reject certain exec-utory contracts for the sale of four parcels of land, with the intent to then resell them at a higher price. After Fullmer successfully rejected these pre-petition contracts, he entered into a process, approved by the court, to resell the parcels for 60% more than the pre-petition price. One of the buyers in this process was Acton. As set forth below, a dispute arose during July of 2004 over when Acton had to pay the purchase price. When that dispute could not be resolved, Acton filed an adversary proceeding against Fullmer for specific performance of Fullmer’s obligations to improve the land, and for a conveyance of the land after the price was paid. To preserve his right, Acton also immediately filed a lis pendens against the land. Trial on this adversary proceeding was held on March 5, 2005. Each side filed post-trial briefs on March 11, 2005. The court entered judgment for Fullmer and against Acton on March 25, 2005. A written opinion setting for the grounds for this judgment was also entered on that date. Following entry of judgment, Fullmer has moved: (1) to expunge the lis pendens; (2) for authority to sell the land at issue to another person; and (3) for attorneys’ fees due him under the terms of the Contract. Acton filed his notice of appeal on March 30, 2005. By this application, Acton seeks to stay or prevent items (1) and (2) above. Despite the filing of a notice of appeal, this court has jurisdiction to hear Acton’s motion. Ho v. Dai Hwa Elec. (In re Ho), 265" }, { "docid": "3264556", "title": "", "text": "308 F.3d 987, 993 (9th Cir.2002) (police officer permitted to withdraw admission that stop was arrest in civil action under Section 1983 since allowing such admission would “confuse” the issues in the case). . Acton’s counsel continued his odd behavior throughout trial and following judgment. As one example, at trial, he attempted to prove mismanagement by Fullmer through cross-examination. In this effort, he stopped trial to demand an easel and marker (which he had not requested before trial) and then tried to force Fullmer to recreate, on the fly, his profit and loss for the project. Not only was this irrelevant to the claim of specific performance, it was bungled badly. After giving counsel much latitude, the court stopped the testimony because Acton’s counsel persisted in mischaracterizing Fullmer’s testimony, and it was rambling. After trial, Acton’s counsel filed a brief contending that the ten day stay of Bankruptcy Rule 7065 did not count weekends (which was clearly wrong), and even cited the rule in his brief (Bankr.R. 9006) that proved him wrong. The court reserves judgment on whether to sanction Acton’s counsel under Rule 9011 for failing to read his own pleadings before signing them. . This clause in the order approving the sale should have, and was meant to, assuage any concerns Acton or any other purchaser may have had regarding Fullmer's obligations con tinuing after closing, and thus nullified the result that would have obtained under state law. See Thornton v. Agassiz Constr., Inc., 106 Nev. 676, 799 P.2d 1106 (Nev.1990). . This is certainly the accepted wisdom of the common law, although anyone who drives 50 or so miles north, south, east or west into the desert surrounding Las Vegas may find reasonable grounds to disagree that land is always unique." } ]

[ { "docid": "396679", "title": "", "text": "exclusive convenience of the employer, if as here the taxpayer is an employee rather than an independent contractor. 26 U.S.C. § 280A. Expenses incurred solely to produce income should in principle be deductible from income tax because otherwise the taxpayer would be taxed on his gross revenue, not on his income. The difficulty is that often expenses have a dual purpose — they produce income but they are also a form of consumption, producing not income but utility. Moss v. Commissioner, 758 F.2d 211, 212 (7th Cir.1985). The specific abuse to which the home office deduction conduced, before the deduction was narrowed in the current law, was that an employee could by transferring some of his work from the place of his employment to his home deduct from income tax a portion of his living expenses— expenses he would have incurred even if he had not been working at all. H.R.Rep. No. 658, 94th Cong., 2d Sess. 160 (1976); S.Rep. No. 938, 94th Cong., 2d Sess. 147 (1976) U.S.Code Cong. & Admin.News 1976, pp. 2897, 3053. For under the former law, although “personal, living or family expenses” were disallowed as a deduction, “all the ordinary and necessary expenses paid or incurred ... in carrying on any trade or business” were allowed, 26 U.S.C. §§ 162(a), 262, and in harmonizing these provisions the Tax Court, with some judicial backing, had allowed home office expenses to be deducted provided they were “appropriate and helpful.” Newi v. Commissioner, 28 T.C.M. 686, 691 (1969), aff'd, 432 F.2d 998 (2d Cir.1970); Bodzin v. Commissioner, 60 T.C. 820, 826 (1973), rev’d, 509 F.2d 679 (4th Cir.1975). With so fuzzy a standard, taxpayers could claim the deduction on the flimsiest of grounds with no fear of a fraud penalty, and thus could pocket a tax savings except in the unlikely event of an audit. The current statute guards against abuse in a variety of ways. The home office must be for the convenience of the employer; that is, it can’t just be a place in which the employee chooses to do some of his work. It must" } ]

[ { "docid": "18747171", "title": "", "text": "and sofa. It is undisputed that this separate' room was used exclusively for administrative work on behalf of the laundry. It is also undisputed that the taxpayers made a legitimate business decision not to make office space in the laundromat. II. The sole issue in this case is whether the taxpayers are entitled to deductions arising from the maintenance of an office in their home. The Tax Court disallowed the “home office” deductions because it concluded that the “focal point” of the taxpayers’ laundromat business was at the laundry. See, e.g., Baie v. Commissioner, 74 T.C. 105 (1980). The taxpayers contend that the Tax Court erred in basing its decision upon the “focal point” of the laundromat business rather than upon the principal situs of Mrs. Meiers’ activities in performing her responsibilities as an employee of the laundromat. Taxpayers contend that the principal situs or focal point of Mrs. Meiers’ activities as an employee of the laundromat is her home office. The general rule contained in 26 U.S.C. § 280A, which controls home office deductions, is that “no deduction ... shall be allowed with respect to the use of a dwelling unit which is used by the taxpayer during the taxable year as a residence.” This general rule is, however, subject to an Exception for expense which is allocable to a portion of the dwelling unit that is exclusively used on a regular basis: (1) as the taxpayer’s principal place of business, or (2) as a place which is used by patients, clients or customers in meeting or dealing with the taxpayer. 26 U.S.C. § 280A(c). Further, when an employee maintains a home office, deductions are allowed only if the home office is maintained for the convenience of the employer. Prior to the enactment of § 280A, which specifically addresses the deductibility of home office expenses, 26 U.S.C. § 162 (deduction of ordinary and necessary business expenses), § 212 (deduction of expenses incurred for the production of income) and § 262 (non-deductibility of personal, living or family expenses) governed the deductibility of expenses for a home office. In analyzing the" }, { "docid": "19184898", "title": "", "text": "634 (1993). The relevant exception to disallowance, in this case, is section 280A(c)(l): (c)(1) Subsection (a) shall not apply to any item to the extent such item is allocable to a portion of the dwelling unit which is exclusively used on a regular basis— (A) as the principal place of business for any trade or business of the taxpayer, (B) as a place of business which is used by patients, clients, or customers in meeting or dealing with the taxpayer in the normal course of his trade or business, or (C) in the case of a separate structure which is not attached to the dwelling unit, in connection with the taxpayer’s trade or business. I.R.C. § 280A. “To qualify for a home-office deduction [under section 280A], a taxpayer must show that the office in his residence ‘is exclusively used on a regular basis ’ as his ‘principal place of business.’ ” Weissman v. Comm’r, 751 F.2d 512, 514 (2d Cir.1984) (citing I.R.C. § 280A(c)(l)) (emphasis added). The phrase “exclusively used on a regular basis” means the taxpayer must show that his home office “is one that not only is vital to [his] business or employment but also has no use but office use.” Cadwallader v. Comm’r, 919 F.2d 1273, 1275 (7th Cir.1990) (emphasis added). In other words, a taxpayer who uses his residence for “both personal purposes and for the carrying on of a trade or business does not meet the exclusive use test.” Weissman, 751 F.2d at 515-16 (internal citation omitted). Here, plaintiffs cannot claim a deduction for the items they bought for Olin’s home office (i.e., Emily’s Studio and Emily’s Office), because they fail to substantiate that Olin’s home office was used exclusively for business purposes. The eighteen items plaintiffs bought were put in either Emily’s Studio or Emily’s Office. The majority of the items (the rug, cabinet for glasses and bottles, air conditioner, blinds, coffee table, floor lamp for the piano, studio arm chair, and eandleholder) were put in Emily’s Studio. (Tilman Dep. at 107:19-110:12). Although Olin used both of these rooms for her business, it is" }, { "docid": "22863075", "title": "", "text": "in lieu of farming income, and Campbell’s prior farming activities do not change the character of this distribution. The tax court correctly determined that the dividend was taxable as ordinary income. Campbell also challenges the determination that he had not provided adequate documentation to deduct certain unreimbursed travel expenses. He argues that he should not be required to meet the strict documentation standards of 26 U.S.C. § 274(d) because his records were lost when his house was bulldozed. The Commissioner responds that § 274(d) applies, and that Campbell neither provided a reasonable reconstruction of his expenses nor established that the expenses were not reimbursable. Unreimbursed expenses incurred by an employee may be deductible under § 162(a), Primuth v. Commissioner, 54 T.C. 374, 377, 1970 WL 2178 expenses cannot be deducted unless the substantiation requirements of 26 U.S.C. § 274(d) are met. Langer v. Commissioner, 980 F.2d 1198 (8th Cir.1992). Section 274(d) requires the taxpayer to substantiate the amount, time, place, and business purpose of each travel expense, “by adequate records or by sufficient evidence corroborating the taxpayer’s own statement.” 26 U.S'.C. § 274(d). When a taxpayer has lost records for reasons beyond his control “such as destruction by fire, flood, earthquake, or other casualty, the taxpayer shall have a right to substantiate a deduction by a reasonable reconstruction of his expenditures.” Treas. Reg. § 1.274-5(c)(5). In order to take advantage of this exception, a taxpayer must prove that he had records which would have adequately substantiated his or her expenses and that those records were destroyed or lost in a casualty “beyond the taxpayer’s control.” Treas. Reg. § 1.274-5(c)(5). (1970), but travel The loss of records in connection with a move is not a casualty beyond the taxpayer’s control unless there are extenuating circumstances. See, e.g., Gizzi v. Commissioner, 65 T.C. 342, 1975 WL 3007 (1975); see also Olivares v. Commissioner, 47 T.C.M. (CCH) 165, 1983 WL 14630 (1983) (exemption does not apply when taxpayer had significant notice that possessions would be removed).. Some lower courts have held that in extreme circumstances the loss of records caused by an abrupt" }, { "docid": "8036879", "title": "", "text": "personal preference, not to commute from Chatham each day. Under such circumstances, his hotel expenses are nondeductible personal expenses. Nor do the facts support his contention that he used such rooms as a business office in which to conduct business meetings. It is clear from the petitioner’s testimony that he lived in such rooms during the week and regarded them as his local residence. Furthermore, he presented no evidence regarding how often he used such rooms for business meetings, and thus, he has failed to demonstrate that he is entitled to deduct any portion of the rent as a business expense. Compare sec. 1.262-l(b)(3), Income Tax Regs. Therefore, we hold that the petitioner may not deduct any of his hotel expenses during 1974, 1975, and 1976, since they are nondeductible personal expenses under section 262. The petitioner maintains that his expenses of $4,080 for meals in 1976 were deductible because such expenses were incurred in connection with his work at the station. The Commissioner allowed a deduction of $2,640 for such expenses, but he disallowed the remainder for lack of substantiation. We must agree with the Commissioner, for such business expenses are subject to the substantiation requirements of section 274(d), which provides in part: (d) Substantiation Required. — No deduction shall be allowed— (1) under section 162 or 212 for any traveling expense (including meals and lodging while away from home), (2) for any item with respect to an activity which is of a type generally considered to constitute entertainment, amusement, or recreation, or with respect to a facility used in connection with such an activity, or * * * * * * * unless the taxpayer substantiates by adequate records or by sufficient evidence corroborating his own statement (A) the amount of such expense or other item, (B) the time and place of the travel, entertainment, amusement, recreation, or use of the facility * * * , (C) the business purpose of the expense or other item, and (D) the business relationship to the taxpayer of persons entertained, using the facility * * * [Emphasis added.] Under such provision," }, { "docid": "9825677", "title": "", "text": "whether petitioner is entitled to a deduction for automobile expenses incurred in driving between his residence and those rental properties. Section 280A was added to the Internal Revenue Code of 1954 by the Tax Reform Act of 1976, Pub. L. 94-455, 90 Stat. 1520, to provide “definitive rules * * * governing the deductibility of expenses attributable to the maintenance of an office in the taxpayer’s personal residence.” S. Rept. 94-938 (1976), 1976-3 C.B. (Vol. 3) 49,185; H. Rept. 94-658 (1975), 1976-3 C.B. (Vol. 2) 695,852. Section 280A provides in pertinent part: SEC. 280A. DISALLOWANCE OF CERTAIN EXPENSES IN CONNECTION WITH BUSINESS USE OF HOME, RENTAL OR VACATION HOMES, ETC. (a) General Rule. — Except as otherwise provided in this section, in the case of a taxpayer who is an individual or an electing small business corporation, no deduction otherwise allowable under this chapter shall be allowed with respect to the use of a dwelling unit which is used by the taxpayer during the taxable year as a residence. ******* (c) Exceptions for Certain Business or Rental Use; Limitation on Deductions for Such Use.— (1) Certain business use. — Subsection (a) shall not apply to any item to the extent such item is allocable to a portion of the dwelling unit which is exclusively used on a regular basis— (A) as the taxpayer’s principal place of business, (B) as a place of business which is used by patients, clients, or customers in meeting or dealing with the taxpayer in the normal course of his trade or business, or (C) in the case of a separate structure which is not attached to the dwelling unit, in connection with the taxpayer’s trade or business. In the case of an employee, the preceding sentence shall apply only if the exclusive use referred to in the preceding sentence is for the convenience of his employer. Respondent has conceded that a portion of petitioner’s residence, which was a dwelling unit as that term is used in section 280A, was used exclusively and on a regular basis in connection with petitioner’s rental activities and that the" }, { "docid": "19184896", "title": "", "text": "to any of the deductions that they claimed on their Amended Schedule C. A. Office Expenses (Line 18) Plaintiffs claim $5,331 in “office expense” deductions on their Amended Schedule C for Emily’s Office and Emily’ Studio, which is $3,902 more than the amount they originally claimed on their 2001 tax return. They argue that they are entitled to this deduction because they needed to buy all eighteen items listed on their Amended Schedule C to run Olin’s business out of their apartment during the 2001 tax year'. The Government argues that plaintiffs are not entitled to the additional $3,902 deduction because Emily’s Office and Emily’s Studio do not satisfy the requirements for a “home-office” deduction, pursuant to section 280A. The Government is correct. Plaintiffs fail to establish their entitlement to a deduction of office expenses in conjunction with Olin’s home office under section 280A. Section 162(a) of the I.R.C. allows a taxpayer to deduct all of “the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” I.R.C. § 162(a); Schaeffer v. Comm’r, T.C. Memo. 1994-227, 1994 WL 199226, at *5 (T.C. May 23, 1994). “An expense is ordinary for purposes of this section if it is normal or customary within a particular trade, business, or industry. An expense is necessary if it is appropriate and helpful for the development of the business.” Langer v. Comm’r, T.C. Memo. 2008-255, 2008 WL 4876819, at *2 (T.C. Nov. 12, 2008) (internal citations omitted). However, there are a number of limitations and requirements for that type of deduction. Section 262 precludes deductions for “personal, living, or family expenses.” I.R.C. § 262; Schaeffer, 1994 WL 199226, at *5. “Furthermore, section 280A narrows the general deductibility rule of section 162 when deductions are claimed for the expenses of an office in the home.” Schaeffer, 1994 WL 199226, at *5. A taxpayer may only deduct expenses attributable to the business use of his home if he qualifies for one of the statute’s exceptions to disallowance. See Comm’r v. Soliman, 506 U.S. 168, 173, 113 S.Ct. 701, 121 L.Ed.2d" }, { "docid": "9825693", "title": "", "text": "“tax home” is located, and a taxpayer cannot have more than one “tax home.” “Principal place of business,” as that term is employed in section 280A(c)(1)(A), refers to the home as a specific situs in which a business is carried on. We find no indication either in the statute or the legislative history that a taxpayer cannot have more than one principal place of business, for purposes of section 280A(c)(1), if he engages in more than one trade or business. We think that section 280A(c)(1)(A) requires a determination as to whether, with respect to a particular business conducted by a taxpayer, the home office was his principal place for conducting that business. Such a determination will fulfill the legislative objective of preventing deductions for the use of a home for purposes which are primarily personal. See S. Rept. 94-938, supra, 1976-3 C.B. (Vol. 3) at 185; H. Rept. 94-658, supra, 1976-3 C.B. (Vol. 2) at 852. The requirement that the secondary activity be a “trade or business” and not just a “section 212” income-producing activity, along with the other conditions imposed by section 280A(c), is a sufficient safeguard against such abuse. Respondent’s approach of requiring that the home office be the principal place at which the taxpayer’s principal business is conducted would disallow otherwise allowable deductions in connection with the use of a home office which is a principal place of business. We do not believe that Congress intended such a result. Accordingly, keeping in mind respondent’s concession (see n. 11 supra), we hold that petitioner is entitled to a deduction for expenses incurred in connection with the use of a portion of his residence as an office. The next issue for decision is whether automobile expenses paid by petitioner for travel between his residence and his rental properties were ordinary and necessary expenses incurred in carrying on a trade or business or were commuting expenses and, therefore, personal and nondeductible. Sec. 162(a); sec. 262. It is well established that expenses incurred by a taxpayer in commuting between his home and his place of business are personal and nondeductible. Commissioner" }, { "docid": "23388729", "title": "", "text": "503 U. S. 935 (1992). a <$ Section 162(a) of the Internal Revenue Code allows a taxpayer to deduct “all the ordinary and necessary expenses paid or incurred ... in carrying on any trade or business.” 26 U. S. C. § 162(a). That provision is qualified, however, by various limitations, including one that prohibits otherwise allowable deductions “with respect to the use of a dwelling unit which is used by the taxpayer ... as a residence.” §280A(a). Taxpayers may nonetheless deduct expenses attributable to the business use of their homes if they qualify for one or more of the statute’s exceptions to this disallowance. The exception at issue in this case is contained in § 280A(c)(l): “Subsection (a) shall not apply to any item to the extent such item is allocable to a portion of the dwelling unit which is exclusively used on a regular basis— “(A) [as] the principal place of business for any trade, or business of the taxpayer[,] “(B) as a place of business which is used by patients, clients, or customers in meeting or dealing with the taxpayer in the normal course of his trade or business, or “(C) in the case of a separate structure which is not attached to the dwelling unit, in connection with the taxpayer’s trade or business. “In the case of an employee, the preceding sentence shall apply only if the exclusive use referred to in the preceding sentence is for the convenience of his employer.” (Emphasis added.) Congress adopted §280A as part of the Tax Reform Act of 1976. Pub. L. 94-455, 94th Cong., 2d Sess. Before its adoption, expenses attributable to the business use of a residence were deductible whenever they were “appropriate and helpful” to the taxpayer’s business. See, e. g., Newi v. Commissioner, 432 F. 2d 998 (CA2 1970). This generous standard allowed many taxpayers to treat what otherwise would have been nondeductible living and family expenses as business expenses, even though the limited business tasks performed in the dwelling resulted in few, if any, additional or incremental costs to the taxpayer. H. R. Rep. No. 94-658," }, { "docid": "18747180", "title": "", "text": "work is predominantly performed. The focal point test is concededly easy to apply and is less subjective than pre-§ 280A standards. Yet we do not believe this approach is fair to taxpayers or carries out in the most appropriate way the apparent intent of Congress. In determining the taxpayer’s principal place of business, we think a major consideration ought to be the length of time the taxpayer spends in the home office as opposed to other locations. See Weissmann, 751 F.2d at 516 (eighty percent of each working week spent at home office); Drucker, 715 F.2d at 69 (more than half of work week spent at home office). But time spent is not necessarily the only consideration. There are other factors, which may from time to time weigh in the balance, such as the importance of the business functions performed by the taxpayer in the home office; the business necessity of maintaining a home office; and the expenditures of the taxpayer to establish a home office. See, e.g., Green v. CIR, 707 F.2d at 407. We think that the application of these factors to home office deductions will carry out the purpose of Congress to prevent taxpayers from converting non-deductible personal expenses into deductible business expenses while ensuring, that taxpayers retain their entitlement to deduct necessary business expenses. In applying these standards to the present case, we conclude that the Tax Court erred in denying taxpayers a deduction for a home office. Mrs. Meiers spent most of her time in the home office and performed what may be her most important functions as a manager there. The Meiers made a legitimate business decision not to create office space at the laundromat. Further, the Commissioner concedes that this is not a situation where the taxpayers are attempting to convert non-deductible personal living expenses into deductible business expenses. Accordingly, we reverse the decision of the Tax Court denying the taxpayers a deduction for their home office expenses. Reversed. . 26 U.S.C. § 280A provides in pertinent part: § 280A. Disallowance of certain expenses in connection with business use of home, rental of" }, { "docid": "17754008", "title": "", "text": "percent of the following: Depreciable basis — placed in service 1980 $25,341.90 1981 2,256.10 1980 24,943.95 Basis of section 38 property 1981 843.36 Expenses of supplies and repairs Petitioners also claimed investment credit and depreciation for a security system installed in their home in 1981. Their briefs do not address the use or purpose of the system, and they have forwarded no evidence to substantiate any deductions or credits for costs of the system. We therefore deem them to have conceded the deductions and credit relating to the security system. Rule 142(a). Home Office Next, petitioners contend that they are entitled to a deduction for use of a room in their home as an office. Petitioners have the burden of proof on this matter. Rule 142(a). Section 280A(a) provides that no deduction shall be allowed with respect to the use of a dwelling unit which is used by a taxpayer as his residence. Section 280A(c)(l) provides exceptions under which a deduction is allowed to the extent a portion of the home is used on a regular basis exclusively as (1) the principal place of business for any trade or business of the taxpayer, or (2) a place of business which is used by patients, clients, or customers in meeting or dealing with the taxpayer in the normal course of business. In the case of an employee, however, those exceptions apply only if the exclusive use of the portion of the residence is for the convenience of the employer. Sec. 280A(c)(l). Petitioners rely on Heineman v. Commissioner, 82 T.C. 538 (1984), to support the home office deduction. Petitioners apparently overlook the first sentence of the opinion portion of that case, where we stated that “section 280A, relating to the use of a home as an office, is not applicable in this case because [the parties] agreed that the office was not a dwelling unit which was used as a residence within the meaning of section 280A(a).” 84 T.C. at 542. Heineman is thus inapposite to the instant case because there is no doubt that the house in which petitioner’s “office” was" }, { "docid": "23388728", "title": "", "text": "maintain ‘legitimate’ home offices, even if the taxpayer does not spend a majority of his time in the office.” 935 F. 2d, at 55. The court concluded that the Tax Court’s test would lead to identification of the “true headquarters of the business.” Ibid. Like the dissenters in the Tax Court, Judge Phillips in his dissent argued that the plain language of § 280A(c)(l)(A) requires a comparative analysis of the places of business to assess which one is principal, an analysis that was not undertaken by the majority. Ibid. Although other Courts of Appeals have criticized the focal point test, their approaches for determining the principal place of business differ in significant ways from the approach employed by the Court of Appeals in this case, see Pomarantz v. Commissioner, 867 F. 2d 495, 497 (CA9 1988); Meiers v. Commissioner, supra, at 79; Weissman v. Commissioner, supra, at 514-516; Drucker v. Commissioner, supra, at 69. Those other courts undertake a comparative analysis of the functions performed at each location. We granted certiorari to resolve the conflict. 503 U. S. 935 (1992). a <$ Section 162(a) of the Internal Revenue Code allows a taxpayer to deduct “all the ordinary and necessary expenses paid or incurred ... in carrying on any trade or business.” 26 U. S. C. § 162(a). That provision is qualified, however, by various limitations, including one that prohibits otherwise allowable deductions “with respect to the use of a dwelling unit which is used by the taxpayer ... as a residence.” §280A(a). Taxpayers may nonetheless deduct expenses attributable to the business use of their homes if they qualify for one or more of the statute’s exceptions to this disallowance. The exception at issue in this case is contained in § 280A(c)(l): “Subsection (a) shall not apply to any item to the extent such item is allocable to a portion of the dwelling unit which is exclusively used on a regular basis— “(A) [as] the principal place of business for any trade, or business of the taxpayer[,] “(B) as a place of business which is used by patients, clients, or customers" }, { "docid": "4436456", "title": "", "text": "the employer. Id. Congress decided that “appropriate and helpful” was too subjective a standard. It expressed concern that taxpayers who experienced “minor incremental expenses” could claim deductions, and that some could deduct personal expenses under the guise of business use of the home. Id. at 160. In enacting section 280A, Congress demonstrated that it was not concerned solely with the need or usefulness of a home office. Instead, it intended that deductions correspond to business use of the home resulting in substantial expense to the taxpayer. Id. We conclude that Congress intended section 280A(c)(l)(B) to apply to offices actually visited by taxpayer clients. It is far more likely that a taxpayer who expects regular client visits will sustain expenses in making the home suitable for business use. Green, on the other hand, has never asserted that he sustained major expense in setting aside a room for phone calls. Allowing a deduction here would ignore Congress’s goal of tying deductions to expenses. The other sections that allow deductions support the idea that Congress sought to tie deductions to taxpayer expense. Section 280A(c)(l)(A) allows a deduction if part of a home is used as the principal place of a taxpayer’s business. Section 280A(c)(l)(C) provides a deduction for an unattached structure that is used exclusively and regularly for business purposes. We trace in both sections the notion that deductions will be allowed when a taxpayer is likely to have incurred substantial expense in converting part of a home into a place of business. A taxpayer who constructs a separate structure for business use is likely to incur substantial expense and less likely to use that space for personal matters. Similarly, a taxpayer who must use the home as the principal place of business is more likely to make changes and incur the expense necessary to using the home as a business. Green’s interpretation of section 280A(c)(l)(B), allowing a deduction for the room in which a phone is located, is inconsistent with these sections. Finally, we note that if we accept the interpretation offered by Green and the Tax Court majority, the IRS would" }, { "docid": "8036883", "title": "", "text": "meals in excess of those allowed by the Commissioner are deductible. Buddy Schoellkopf Products, Inc. v. Commissioner, 65 T.C. 640, 660 (1975); Bradley v. Commissioner, supra at 10; Sanford v. Commissioner, 50 T.C. at 826. Next, we consider the amounts deducted by the petitioner for the use and depreciation of his automobile during 1975 and 1976. He maintains that he often used his car to cover a story in connection with his work as a newsman at the station, to travel between his hotel and the station, and to travel between Needham and either Chatham or Brewster in connection with the development of the land for the trust. The Commissioner allowed a portion of the petitioner’s expenses for automobile use and depreciation and disallowed the remainder for lack of substantiation. We must uphold the Commissioner’s determination on this issue, for the petitioner introduced no evidence to support his claim that the automobile expenses were incurred for business purposes. Indeed, his testimony revealed that a portion of the use of the car was for commuting between his hotel and work and for commuting between the station and his home in Chatham. It is well established that expenses incurred by a taxpayer in commuting between his home and his place of business are personal and nondeductible. Commissioner v. Flowers, 326 U.S. at 473-474; Heuer v. Commissioner, 32 T.C. 947, 951-952 (1959), affd. per curiam 283 F.2d 865 (5th Cir. 1960). Expenses incurred on trips between two places of business are deductible as a business expense (Steinhort v. Commissioner, 335 F.2d 496, 503-504 (5th Cir. 1964), affg. and remanding a Memorandum Opinion of this Court; Heuer v. Commissioner, 32 T.C. at 953), but the petitioner has furnished no evidence to show how much of his travel may have been between places of business. For such reasons, we sustain the Commissioner’s determination on this issue. The fifth issue for decision is whether the petitioners, Mr. and Mrs. Hynes, are entitled to a deduction under section 280A for expenses incurred for the use of a room in their residence as a home office. They maintain" }, { "docid": "4436458", "title": "", "text": "face an impossible task of policing home office deductions. Any sales or service person may be available for business calls at home and could claim a deduction by labeling space as a telephone room. The IRS would be hard put to detect those who made personal use of such business space. It is less likely that a taxpayer who must make a room suitable for client visits would also be able to use it personally. The decision of the Tax Court is reversed. Green’s deduction for a home office is disallowed. . The relevant portions of section 280A(a) and (c) provide: § 280A. Disallowance of certain expenses in connection with business use of home, rental of vacation homes, etc. (a) General rule. — Except as otherwise provided in this section, in the case of a taxpayer who is an individual or an electing small business corporation, no deduction otherwise allowable under this chapter shall be allowed with respect to the use of a dwelling unit which is used by the taxpayer during the taxable year as a residence. (c) Exceptions for certain business or rental use; limitation on deductions for such use.— (1) Certain business use. — Subsection (a) shall not apply to any item to the extent such item is allocable to a portion of the dwelling unit which is exclusively used on a regular basis— (A) the principal place of business for any trade or business of the taxpayer. (B) as a place of business which is used by patients, clients, or customers in meeting or dealing with the taxpayer in the normal course of his trade or business, or (C) in the case of a separate structure which is not attached to the dwelling unit, in connection with the taxpayer’s trade or business. In the case of an employee, the preceding sentence shall apply only if the exclusive use referred to in the preceding sentence is for the convenience of his employer. (2) Certain storage use. — Subsection (a) shall not apply to any item to the extent such item is allocable to space within the dwelling" }, { "docid": "19184897", "title": "", "text": "I.R.C. § 162(a); Schaeffer v. Comm’r, T.C. Memo. 1994-227, 1994 WL 199226, at *5 (T.C. May 23, 1994). “An expense is ordinary for purposes of this section if it is normal or customary within a particular trade, business, or industry. An expense is necessary if it is appropriate and helpful for the development of the business.” Langer v. Comm’r, T.C. Memo. 2008-255, 2008 WL 4876819, at *2 (T.C. Nov. 12, 2008) (internal citations omitted). However, there are a number of limitations and requirements for that type of deduction. Section 262 precludes deductions for “personal, living, or family expenses.” I.R.C. § 262; Schaeffer, 1994 WL 199226, at *5. “Furthermore, section 280A narrows the general deductibility rule of section 162 when deductions are claimed for the expenses of an office in the home.” Schaeffer, 1994 WL 199226, at *5. A taxpayer may only deduct expenses attributable to the business use of his home if he qualifies for one of the statute’s exceptions to disallowance. See Comm’r v. Soliman, 506 U.S. 168, 173, 113 S.Ct. 701, 121 L.Ed.2d 634 (1993). The relevant exception to disallowance, in this case, is section 280A(c)(l): (c)(1) Subsection (a) shall not apply to any item to the extent such item is allocable to a portion of the dwelling unit which is exclusively used on a regular basis— (A) as the principal place of business for any trade or business of the taxpayer, (B) as a place of business which is used by patients, clients, or customers in meeting or dealing with the taxpayer in the normal course of his trade or business, or (C) in the case of a separate structure which is not attached to the dwelling unit, in connection with the taxpayer’s trade or business. I.R.C. § 280A. “To qualify for a home-office deduction [under section 280A], a taxpayer must show that the office in his residence ‘is exclusively used on a regular basis ’ as his ‘principal place of business.’ ” Weissman v. Comm’r, 751 F.2d 512, 514 (2d Cir.1984) (citing I.R.C. § 280A(c)(l)) (emphasis added). The phrase “exclusively used on a regular basis” means" }, { "docid": "4436455", "title": "", "text": "parents from an area set aside in his trailer home. The court ruled that the taxpayer had not shown use of the area in his home because he had not alleged that any students or parents visited him at his “home office.” 679 F.2d at 605. The plain language of the statute suggests that the deduction should apply only to home offices visited by the taxpayer’s clients. Because the question has divided the Tax Court, however, we shall examine the legislative history and the other sections of the statute. II. Legislative History Congress enacted section 280A to resolve a dispute between the IRS and the Tax Court over home office deductions. Before that enactment, the only limitation on home office deductions was established by section 162(a), which allows deductions for all “ordinary and necessary” business expenses. 26 U.S.C. § 162(a). The Tax Court adopted a policy of allowing deductions if the home office was “appropriate and helpful.” House Report at 157. The IRS advocated that deductions be allowed only if the office was required by the employer. Id. Congress decided that “appropriate and helpful” was too subjective a standard. It expressed concern that taxpayers who experienced “minor incremental expenses” could claim deductions, and that some could deduct personal expenses under the guise of business use of the home. Id. at 160. In enacting section 280A, Congress demonstrated that it was not concerned solely with the need or usefulness of a home office. Instead, it intended that deductions correspond to business use of the home resulting in substantial expense to the taxpayer. Id. We conclude that Congress intended section 280A(c)(l)(B) to apply to offices actually visited by taxpayer clients. It is far more likely that a taxpayer who expects regular client visits will sustain expenses in making the home suitable for business use. Green, on the other hand, has never asserted that he sustained major expense in setting aside a room for phone calls. Allowing a deduction here would ignore Congress’s goal of tying deductions to expenses. The other sections that allow deductions support the idea that Congress sought to tie" }, { "docid": "4436457", "title": "", "text": "deductions to taxpayer expense. Section 280A(c)(l)(A) allows a deduction if part of a home is used as the principal place of a taxpayer’s business. Section 280A(c)(l)(C) provides a deduction for an unattached structure that is used exclusively and regularly for business purposes. We trace in both sections the notion that deductions will be allowed when a taxpayer is likely to have incurred substantial expense in converting part of a home into a place of business. A taxpayer who constructs a separate structure for business use is likely to incur substantial expense and less likely to use that space for personal matters. Similarly, a taxpayer who must use the home as the principal place of business is more likely to make changes and incur the expense necessary to using the home as a business. Green’s interpretation of section 280A(c)(l)(B), allowing a deduction for the room in which a phone is located, is inconsistent with these sections. Finally, we note that if we accept the interpretation offered by Green and the Tax Court majority, the IRS would face an impossible task of policing home office deductions. Any sales or service person may be available for business calls at home and could claim a deduction by labeling space as a telephone room. The IRS would be hard put to detect those who made personal use of such business space. It is less likely that a taxpayer who must make a room suitable for client visits would also be able to use it personally. The decision of the Tax Court is reversed. Green’s deduction for a home office is disallowed. . The relevant portions of section 280A(a) and (c) provide: § 280A. Disallowance of certain expenses in connection with business use of home, rental of vacation homes, etc. (a) General rule. — Except as otherwise provided in this section, in the case of a taxpayer who is an individual or an electing small business corporation, no deduction otherwise allowable under this chapter shall be allowed with respect to the use of a dwelling unit which is used by the taxpayer during the taxable year" }, { "docid": "8071323", "title": "", "text": "who presented her own case, impressed the Court as being an honest, straightforward, hard-working American taxpayer, and we have no reason to question her testimony as to the uses to which she put the kitchen and the extra room in her dwelling place. On their 1976 return, petitioners claimed $1,127 as a home office expense, which deduction respondent has disallowed under section 280A. Section 280A(a) enunciates a general rule for disallowing expenses which are attributable to the business use of a home: Except as otherwise provided in this section, in the case of a taxpayer who is an individual or an electing small business corporation, no deduction otherwise allowable under this chapter shall be allowed with respect to the use of a dwelling unit which is used by the taxpayer during the taxable year as a residence. The limited exceptions to this general rule are set forth in section 280A(c) which provides in pertinent part as follows: (c) Exceptions for Certain Business or Rental Use; Limitation on Deductions for Such Use.— (1) Certain business use. — Subsection (a) shall not apply to any item to the extent such item is allocable to a portion of the dwelling unit which is exclusively used on a regular basis— (A) as the taxpayer’s principal place of business, (B) as a place of business which is used by patients, clients, or customers in meeting or dealing with the taxpayer in the normal course of his trade or business, or (C) in the case of a separate structure which is not attached to the dwelling unit, in connection with the taxpayer’s trade or business. In the case of an employee, the preceding sentence shall apply only if the exclusive use referred to in the preceding sentence is for the convenience of his employer. (2) Certain storage use. — Subsection (a) shall not apply to any item to the extent such item is allocable to space within the dwelling unit which is used on a regular basis as a storage unit for the inventory of the taxpayer held for use in the taxpayer’s trade or business" }, { "docid": "18747172", "title": "", "text": "is that “no deduction ... shall be allowed with respect to the use of a dwelling unit which is used by the taxpayer during the taxable year as a residence.” This general rule is, however, subject to an Exception for expense which is allocable to a portion of the dwelling unit that is exclusively used on a regular basis: (1) as the taxpayer’s principal place of business, or (2) as a place which is used by patients, clients or customers in meeting or dealing with the taxpayer. 26 U.S.C. § 280A(c). Further, when an employee maintains a home office, deductions are allowed only if the home office is maintained for the convenience of the employer. Prior to the enactment of § 280A, which specifically addresses the deductibility of home office expenses, 26 U.S.C. § 162 (deduction of ordinary and necessary business expenses), § 212 (deduction of expenses incurred for the production of income) and § 262 (non-deductibility of personal, living or family expenses) governed the deductibility of expenses for a home office. In analyzing the deductibility of these expenses, the Tax Court applied the liberal standard of “appropriate and helpful” to determine whether a home office expenditure was “ordinary and necessary.” See, e.g., Newi v. Commissioner, 28 T.C.M. (CCH) 686 (1969), aff'd, 432 F.2d 998 (2d Cir.1970); cf. Bodzin v. Commissioner, 60 T.C. 820 (1973) rev’d, 509 F.2d 679 (4th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 40, 46 L.Ed.2d 41 (1975); Sharon v. Commissioner, 66 T.C. 515 (1976), aff'd, 591 F.2d 1273 (9th Cir.1978), cert. denied, 442 U.S. 941, 99 S.Ct. 2883, 61 L.Ed.2d 311 (1979). The Commissioner objected to these liberal home office standards applied by the Tax Court. See, e.g., Rev.Rul. 62-180, 1962-2 C.B. 52, requiring the taxpayer to establish that the use of a home office was a condition of employment. The Commissioner therefore petitioned Congress to tighten the standards for home office deductions. Thereafter Congress enacted § 280A to resolve the dispute between the Commissioner and the Tax Court with respect to home office deductions. Green v. CIR, 707 F.2d 404, 407 (9th Cir.1983)." }, { "docid": "18747181", "title": "", "text": "We think that the application of these factors to home office deductions will carry out the purpose of Congress to prevent taxpayers from converting non-deductible personal expenses into deductible business expenses while ensuring, that taxpayers retain their entitlement to deduct necessary business expenses. In applying these standards to the present case, we conclude that the Tax Court erred in denying taxpayers a deduction for a home office. Mrs. Meiers spent most of her time in the home office and performed what may be her most important functions as a manager there. The Meiers made a legitimate business decision not to create office space at the laundromat. Further, the Commissioner concedes that this is not a situation where the taxpayers are attempting to convert non-deductible personal living expenses into deductible business expenses. Accordingly, we reverse the decision of the Tax Court denying the taxpayers a deduction for their home office expenses. Reversed. . 26 U.S.C. § 280A provides in pertinent part: § 280A. Disallowance of certain expenses in connection with business use of home, rental of vacation homes, etc. (a) General rule. — Except as otherwise provided in this section, in the case of a taxpayer who is an individual or an S corporation, no deduction otherwise allowable under this chapter shall be allowed with respect to the use of a dwelling unit which is used by the taxpayer during the taxable year as a residence. (b) Exception for interest, taxes, casualty losses, etc. — Subsection (a) shall not apply to any deduction allowable to the taxpayer without regard to its connection with his trade or business (or with his income-producing activity)- (c) Exceptions for certain business or rental use; limitation on deductions for such use.— (1) Certain business use. — Subsection (a) shall not apply to any item to the extent such item is allocable to a portion of the dwelling unit which is exclusively used on a regular basis— (A) [as] the principal place of business for any trade or business of the taxpayer. (B) as a place of business which is used by patients, clients, or customers in" } ]

[ { "docid": "22814267", "title": "", "text": "and determining their rights inter se, its terms do not necessarily control when the rights of others intervene, whether they be creditors or the sovereign. See Klaus, Sale, Agency and Price Maintenance, 28 Col. L. Rev. 441, 443-450. We assume in this case that the agreements constituted the appellees as del credere agents of Masonite. But that circumstance does not prevent the arrangement from running afoul of the Sherman Act. The owner of a patent cannot extend his statutory grant by contract or agreement. A patent affords no immunity for a monopoly not fairly or plainly within the grant. We have recently stated in Morton Salt Co. v. Suppiger Co., 314 U. S. 488, 492, that “the .public policy which includes inventions within the granted monopoly excludes from it all that is not embraced in the invention. It equally forbids the use of the patent to secure an exclusive right or limited monopoly not granted by the Patent Office and which it is contrary to public policy to grant.” Beyond the limited monopoly which is granted, the arrangements by which the patent is utilized are subject to the general law. Standard Sanitary Mfg. Co. v. United States, supra; Boston Store v. American Graphophone Co., 246 U. S. 8, 25; Ethyl Gasoline Corp. v. United States, supra. We do not have here any question as to the validity of a license to manufacture and sell, since none of the “'agents” exercised its option to acquire such a license from Masonite. Hence we need not reach the problems presented by Bement v. National Harrow Co., 186 U. S. 70, and that part of the General Electric case which dealt with the license to Westinghouse Company. Rather, we are concerned here only with a license to vend. But it will not do to say that, since the patentee has the power to refuse a license, he has the lesser power to license on his own conditions. There are strict limitations on the power of the patentee to attach conditions to the use of the patented article. As Chief Justice Taney said in Bloomer" } ]

[ { "docid": "14756742", "title": "", "text": "June Mfg. Co., 163 U.S. 169, 185, 16 S.Ct. 1002, 1008, 41 L.Ed. 118 (1896). See also Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 165, 109 S.Ct. 971, 985, 103 L.Ed.2d 118 (1989) (“For almost 100 years it has been well established that in the case of an expired patent, the federal patent laws do create a federal right to ‘copy and use.’”) (emphasis in original); Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 230, 84 S.Ct. 784, 788, 11 L.Ed.2d 661 (1964) (“when the patent expires the monopoly created by it expires, too, and the right' to make the article-including the right to make it in precisely the shape it carried when patented — passes to the public”); Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 119-20, 59 S.Ct. 109, 114, 83 L.Ed. 73 (1938) (“upon expiration of the patents, the form ... was dedicated to the public.”). Upon, closer inspection, these cases are distinguishable from the present one, and their findings are not determinative here. In Bonito Boats and Sears, the Supreme Court examined the relationship between federal patent law and state unfair competition law, not between federal patent law and federal trademark law. The holdings of these cases, then, has no effect on the scope of federal trademark or unfair competition law. See Esercizio v. Roberts, 944 F.2d 1235, 1241 (6th Cir.1991), cert. denied, 505 U.S. 1219, 112 S.Ct. 3028, 120 L.Ed.2d 899 (1992). Furthermore, as we noted in Kohler Co. v. Moen Inc., 12 F.3d 632 (7th Cir.1993), the Florida statute at issue in Bonito Boats granted “patent-like rights far exceeding any right availablé under the Lanham Act” and its holding is not analogous to the present situation. Kohler, 12 F.3d at 641. The Singer case is factually distinguishable from the present situation. In Singer, the Supreme Court found that it could not “be denied that the Singer machines were covered by patents____ There can also be no doubt that the necessary result of the existence of these patents was to give to the Singer machines, as a whole," }, { "docid": "6144408", "title": "", "text": "are not eligible for patent protection. 133 S.Ct. at 2111. Here, as in Myriad, Roslin “did not create or alter any of the genetic information” of its claimed clones, “[n]or did [Roslin] create or alter the genetic structure of [the] DNA” used to make its clones. Myriad, 133 S.Ct. at 2116. Instead, Roslin’s chief innovation was the preservation of the donor DNA such that the clone is an exact copy of the mammal from which the somatic cell was taken. Such a copy is not eligible for patent protection. Related areas of Supreme Court patent case law reinforce this conclusion. For example, Supreme Court decisions regarding the preemptive force of federal patent law confirm that individuals are free to copy any unpatentable article, such as a live farm animal, so long as they do not infringe a patented method of copying. Sears, Roebuck & Co. v. Stiffel Co. clarified that a state may not “prohibit the copying of [an] article itself or award damages for such copying” when that article is ineligible for patent protection. 376 U.S. 225, 232-33, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964) (citing G. Ricordi & Co. v. Haendler, 194 F.2d 914, 916 (2d Cir.1952)). In Sears, the question was whether the defendant, Sears Roebuck & Co., could be held liable under state law for copying a lamp design whose patent protection had expired. Id. at 225-26, 84 S.Ct. 784. The Court explained that “when the patent expires the monopoly created by it expires, too, and the right to make the article- — including the right to make it in precisely the shape it carried when patented — passes to the public.” Id. at 230, 84 S.Ct. 784 (citing Kellogg Co. v. Nat’l Biscuit Co., 305 U.S. 111, 120-22, 59 S.Ct. 109, 83 L.Ed. 73 (1938) and Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185, 16 S.Ct. 1002, 41 L.Ed. 118 (1896)). The Court further clarified that “[a]n unpatentable article, like an article on which the patent has expired, is in the public domain and may be made and sold by whoever chooses" }, { "docid": "23033758", "title": "", "text": "the stated constitutional purpose.” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5-6 (1966). As we have made clear in the patent context, that purpose has two dimensions. Most obviously the grant of exclusive rights to their respective writings and discoveries is intended to encourage the creativity of “Authors and Inventors.” But the requirement that those exclusive grants be for “limited Times” serves the ultimate purpose of promoting the “Progress of Science and useful Arts” by guaranteeing that those innovations will enter the public domain as soon as the period of exclusivity expires: “Once the patent issues, it is strictly construed, United States v. Masonite Corp., 316 U. S. 265, 280 (1942), it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488, 492 (1942),... and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article — including the right to make it in precisely the shape it carried when patented — passes to the public. Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 120-122 (1938); Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 185 (1896).” Sears, Roebuck & Co., 376 U. S., at 230. It is that ultimate purpose that explains why a patent may not issue unless it discloses the invention in such detail that one skilled in the art may copy it. See, e. g., Grant v. Raymond, 6 Pet. 218, 247 (1832) (Marshall, C. J.) (“The third section [of the 1793 Act] requires, as preliminary to a patent, a correct specification and description of the thing discovered. This is necessary in order to give the public, after the privilege shall expire, the advantage for which the privilege is allowed, and is the foundation of the power to issue the patent”). Complete disclosure as a precondition to the issuance of a patent is part of the quid pro quo that justifies the limited monopoly for the inventor as consideration for full and" }, { "docid": "11311022", "title": "", "text": "to yield the fair price society must pay for a given commodity, [citations omitted]. American Safety Table Co., Inc. v. Schreiber, 269 F.2d 255, 272 (2nd Cir.1959), certiorari denied, 361 U.S. 915, 80 S.Ct. 259, 4 L.Ed.2d 185 (1959). Copying is not only good, it is a federal right — a necessary complement to the patent system’s grant of limited monopolies. Both the novelty and the nonobviousness requirements of federal patent law are grounded in the notion that concepts with in the public grasp, or those so obvious that they readily could be, are the tools of creation available to all. They provide the baseline of competition upon which the patent system’s incentive to creative effort depends. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 156, 109 S.Ct. 971, 980, 103 L.Ed.2d 118 (1989). The right to copy is even more robust when the copied product was previously patented but the patent has expired. In that case, the original producer has reaped his reward of a 17-year monopoly and the public has already “paid the congressionally mandated price for disclosure.” Id. at 152, 109 S.Ct. at 978. It is self evident that on the expiration of a patent the monopoly granted by it ceases to exist, and the right to make the thing formerly covered by the patent becomes public property. It is upon this condition that the patent is granted. It follows, as a matter of course, that on the termination of a patent there passes to the public the right to make the machine in the form in which it was constructed during the patent. Kellogg Co. v. Nat. Biscuit Co., 305 U.S. Ill, 120, 59 S.Ct. 109, 114, 83 L.Ed. 73 (1938), quoting Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185, 16 S.Ct. 1002, 1008, 41 L.Ed. 118 (1896). On the one hand then, trademark law allows a producer to prohibit the copying of a product feature which serves as a signifier of source in order to preserve his reputation and the goodwill consumers have for his brand. On the other" }, { "docid": "23354835", "title": "", "text": "at the inside of the neck, a traditional means of identifying the manufacturer of clothing. The trademark is also displayed on the zipper pull, on a hang-tag, and on the plastic bag in which the jacket is packaged. Courts must proceed with caution in assessing claims to unregistered trademark protection in the design of products so as not to undermine the objectives of the pat ent laws. Patents for inventions and designs, see 35 U.S.C. §§ 101, 171 (1982), are the principal means by which we protect intellectual property embodied in products. By bestowing limited periods of protection to novel, non-obvious, and useful inventions and new, original, and ornamental designs — seventeen years for invention patents, 35 U.S.C. § 154 (1982), and fourteen years for design patents, 35 U.S.C. § 173 (1982) — the patent laws encourage progress in science and the useful arts. See U.S. Const, art. 1 § 8, cl. 8. Society reaps the rewards of these advances in the short term to the extent that patent holders and their licensees incorporate protected ideas into new and useful products. These rewards are more fully realized in the longer term because novel ideas fall into the public domain upon the expiration of patent protection. Since trademark protection extends for an unlimited period, expansive trade dress protection for the design of products would prevent some functional products from enriching the public domain. This threat is particularly great when, as in the instant case, a first manufacturer seeks broad trade dress protection for a product on the ground that its arrangement of predominantly functional features is distinctive. Even if Stormy Clime were to have a patent on the use of horizontal shingled vents in rainjackets, it is unlikely that it would have as much monopoly power as an unregistered trademark in the shingled look would provide. As the Supreme Court noted in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), a case involving the scope of state unfair competition law, [o]nce [a] patent issues, it is strictly construed, United States v. Masonite" }, { "docid": "22283266", "title": "", "text": "Products, Inc. v. Genmark, Inc., 770 F.2d at 1031, 226 U.S.P.Q. at 891, where the court explained that in resolving the question of product design functionality for purposes of the Lanham Act, “reference to utility patent claims that are, or have been, asserted to read on either product, or to the appearance of the device depicted in figures included in the patent specification supporting such claims, must be done with caution.” To be sure, statements in a patent may provide evidence that the asserted trade dress is functional, and thus not entitled to legal protection. See In re Bose Corp., 772 F.2d 866, 872, 227 U.S.P.Q 1, 6 (Fed.Cir.1985); In re Morton-Norwich Prods., Inc., 671 F.2d 1332, 1340-41, 213 U.S.P.Q. 9, 15-16 (1982); In re Honeywell, Inc, 497 F.2d 1344, 1348, 181 U.S.P.Q. 821, 824 (1974). But the fact that a patent has been acquired does not convert what otherwise would have been protected trade dress into nonprotected matter. As the Court of Customs and Patent Appeals put the matter in the seminal Deister case, “we are not seriously con cerned with whether he who claims trademark rights of unlimited duration now has or did have patent protection, or what that protection was.” 289 F.2d at 501, 129 USPQ at 319. 3 In several older decisions, the Supreme Court used broad language suggesting that trademark rights could not be obtained in product features that had been disclosed in a patent. See Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185, 16 S.Ct. 1002, 41 L.Ed. 118 (1896); Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 119-22, 59 S.Ct. 109, 83 L.Ed. 73 (1938); Scott Paper Co. v. Marcalus Mfg. Co., 326 U.S. 249, 256, 66 S.Ct. 101, 90 L.Ed. 47, 67 U.S.P.Q. 193 (1945); Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661, 140 U.S.P.Q. 524 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669, 140 U.S.P.Q. 528 (1964). Those cases, however, have not been read expansively. The Court of Customs and" }, { "docid": "22283267", "title": "", "text": "“we are not seriously con cerned with whether he who claims trademark rights of unlimited duration now has or did have patent protection, or what that protection was.” 289 F.2d at 501, 129 USPQ at 319. 3 In several older decisions, the Supreme Court used broad language suggesting that trademark rights could not be obtained in product features that had been disclosed in a patent. See Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185, 16 S.Ct. 1002, 41 L.Ed. 118 (1896); Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 119-22, 59 S.Ct. 109, 83 L.Ed. 73 (1938); Scott Paper Co. v. Marcalus Mfg. Co., 326 U.S. 249, 256, 66 S.Ct. 101, 90 L.Ed. 47, 67 U.S.P.Q. 193 (1945); Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661, 140 U.S.P.Q. 524 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669, 140 U.S.P.Q. 528 (1964). Those cases, however, have not been read expansively. The Court of Customs and Patent Appeals construed that line of cases as limited to the proposition that trademark rights cannot be obtained in functional features of products that had been disclosed in patents. See In re Honeywell, Inc., 497 F.2d 1344, 1348-49, 181 U.S.P.Q. 821, 824-25 (1974). More recently, the Supreme Court itself has indicated that those cases do not have a broad preclusive effect on state and federal trade dress protections. In Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118, 9 U.S.P.Q.2d 1847 (1989), the Court held that a state may not create patent-like rights that would bar the copying of design and utilitarian ideas embodied in unpatented products. The Court emphasized, however, that it did not mean to foreclose traditional rights such as protections for trade dress provided by state and federal law. Addressing the Nears and Compco cases, the Court noted that those cases “could be taken to stand for the proposition that the States are completely disabled from offering any form of protection to articles or" }, { "docid": "11783352", "title": "", "text": "patent becomes public property. It is upon this condition that the patent is granted. It follows, as a matter of course, that on the termination of the patent there passes to the public the right to make the machine in the form in which it was constructed during the patent. We may, therefore, dismiss without further comment the complaint as to the form in which the defendant made his machines. Id. at 185, 16 S.Ct. at 1008 (emphasis supplied). In Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938) the shredded wheat biscuit was the subject of a design patent held by National Biscuit covering the pillow-shaped form. Upon the expiration of the patent, the Court allowed Kellogg to manufacture the same biscuit under the name “shredded wheat.” The Court held that “upon expiration of the patents the form ... was dedicated to the public.” 305 U.S. at 119-20, 59 S.Ct. at 114. Certainly, if tie Patent Clause gives the right to copy an article which was once covered by a patent, the public must also retain the fight to copy an article which has never been even temporarily removed from the public domain by reason of being patented. Thus, in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), Sears copied and sold at a lower price a pole lamp marketed by Stiffel. Id. at 226, 84 S.Ct. at 786. The1 Court in upholding Sears said: An unpatentable article, like an article on which the patent has expired, is in the public domain and may be made and sold by whoever chooses to do so. What Sears did was to copy Stiffel’s design and to sell lamps almost identical to those sold by Stiffel. This it had every right to do under the federal patent law. Id. at 231, 84 S.Ct. at 789 (emphasis supplied). In Compco Corp. v. Day-Brite Lighting, Inc., in upholding Compco’s right to market a copy of a Day-Brite light fixture, the-Court emphatically restated the constitutional policy in.favor of free" }, { "docid": "23354836", "title": "", "text": "ideas into new and useful products. These rewards are more fully realized in the longer term because novel ideas fall into the public domain upon the expiration of patent protection. Since trademark protection extends for an unlimited period, expansive trade dress protection for the design of products would prevent some functional products from enriching the public domain. This threat is particularly great when, as in the instant case, a first manufacturer seeks broad trade dress protection for a product on the ground that its arrangement of predominantly functional features is distinctive. Even if Stormy Clime were to have a patent on the use of horizontal shingled vents in rainjackets, it is unlikely that it would have as much monopoly power as an unregistered trademark in the shingled look would provide. As the Supreme Court noted in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), a case involving the scope of state unfair competition law, [o]nce [a] patent issues, it is strictly construed, United States v. Masonite Corp., 316 U.S. 265, 280 [62 S.Ct. 1070, 1078, 86 L.Ed. 1461] (1942), [and] it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G.S. Suppiger Co., 314 U.S. 488, 492 [62 S.Ct. 402, 405, 86 L.Ed. 363] (1942), Finally, and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article — including the right to make it in precisely the shape it carried when patented — passes to the public. Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 120-122 [59 S.Ct. 109, 114-115, 83 L.Ed. 73] (1938); Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185 [16 S.Ct. 1002, 1008, 41 L.Ed. 118] (1896). Sears, Roebuck & Co. v. Stiffel Co., supra, 376 U.S. at 230, 84 S.Ct. at 788. To avoid undermining the purpose of the patent laws to place useful innovations in the public domain after expiration of a limited monopoly, courts must be sensitive to whether a grant of" }, { "docid": "11783351", "title": "", "text": "expired patent, whether or not such matter describes essential elements of the invention or claims. Id. at 256, 66 S.Ct. at 104-05 (emphasis supplied) (citations omitted). In Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 16. S.Ct. 1002, 41 L.Ed. 118 (1896), Singer made patented sewing machines- for several years having a distinctive form and appearance. 163 U.S. at 175, 16 S.Ct. at 1004. After the expiration of the principal patents, June Manufacturing Company began making sewing machines with the same appearance. Id. Singer complained that June, “for the purpose of inducing the belief that sewing machines manufactured and sold by it [June] were made by [Singer], was making and selling machines of the exact size, shape, ornamentation, and general appearance as” Singer’s machines. Id. at 170, 16 S.Ct. at 1002. The Court refused to enjoin the copying of Singer’s product configuration and held: It is self-evident that on the expiration of a patent the monopoly created by it ceases to exist, and the right- to make the thing formerly covered by the patent becomes public property. It is upon this condition that the patent is granted. It follows, as a matter of course, that on the termination of the patent there passes to the public the right to make the machine in the form in which it was constructed during the patent. We may, therefore, dismiss without further comment the complaint as to the form in which the defendant made his machines. Id. at 185, 16 S.Ct. at 1008 (emphasis supplied). In Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938) the shredded wheat biscuit was the subject of a design patent held by National Biscuit covering the pillow-shaped form. Upon the expiration of the patent, the Court allowed Kellogg to manufacture the same biscuit under the name “shredded wheat.” The Court held that “upon expiration of the patents the form ... was dedicated to the public.” 305 U.S. at 119-20, 59 S.Ct. at 114. Certainly, if tie Patent Clause gives the right to copy an article which was once" }, { "docid": "15435506", "title": "", "text": "S.Ct. at 618. The second case, Kellogg Company v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938), related to shredded wheat. The product had been originated by National’s predecessor, one Perky, who had obtained a patent on the machine used in its manufacture. National marketed the product, in a pillow-shaped form, under the name of Shredded Wheat in packages picturing a dish containing two biscuits submerged in milk. Kellogg manufactured and sold a similar product under the same name, shredded wheat. After procedural complications unnecessary to detail, the Court of Appeals for the Third Circuit directed the district court to enter a decree, 96 F.2d 873 (1938), enjoining Kellogg: “(1) from the use of the name ‘SHREDDED WHEAT’ as its trade name, (2) from advertising or offering for sale its product in the form and shape of plaintiff’s biscuit, and (3) from doing either.” 305 U.S. at 115, 59 S.Ct. at 112. In reversing, the Supreme Court began by holding that National had no exclusive right to Shredded Wheat as a trade name both because the term was generic and because the name “as well as the product, the process and the machinery employed in making it, has been dedicated to the public” upon the expiration of Perky’s patent in 1912 or shortly thereafter. Because National had allowed Shredded Wheat to become “the generic designation of the thing which has arisen during the [patent] monopoly,” Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185, 16 S.Ct. 1002, 1008, 41 L.Ed. 118 (1896), it would in effect extend the patent monopoly if National were to be given exclusive rights in the name. The Court next held that National “has not the exclusive right to sell shredded wheat in the form of a pillow-shaped biscuit . .” This was primarily because the pillow shape was that in which shredded wheat was made under the patent. Here again Kellogg “was free to use the pillow-shaped form, subject only to the obligation to identify its product lest it be mistaken for that of the plaintiff.” 305 U.S." }, { "docid": "15435507", "title": "", "text": "a trade name both because the term was generic and because the name “as well as the product, the process and the machinery employed in making it, has been dedicated to the public” upon the expiration of Perky’s patent in 1912 or shortly thereafter. Because National had allowed Shredded Wheat to become “the generic designation of the thing which has arisen during the [patent] monopoly,” Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185, 16 S.Ct. 1002, 1008, 41 L.Ed. 118 (1896), it would in effect extend the patent monopoly if National were to be given exclusive rights in the name. The Court next held that National “has not the exclusive right to sell shredded wheat in the form of a pillow-shaped biscuit . .” This was primarily because the pillow shape was that in which shredded wheat was made under the patent. Here again Kellogg “was free to use the pillow-shaped form, subject only to the obligation to identify its product lest it be mistaken for that of the plaintiff.” 305 U.S. at 120, 59 S.Ct. at 114. Finally the Court addressed itself to the question whether Kellogg was exercising its rights “fairly”, i.e., “in a manner which reasonably distinguishes its product from that of plaintiff.” It found that Kellogg had taken every reasonable means for doing this — using cartons distinctive in size, form and color, featuring the name Kellogg, and containing biscuits only two-thirds the size of National’s. Conceding that Kellogg was sharing in the good-will of an article created by National and its predecessors, Mr. Justice Brandéis said that “[s]haring in the goodwill of an article unprotected by patent or trade-mark is the exercise of a right possessed by all — and in the free exercise of which the consuming public is deeply interested.” 305 U.S. at 122, 59 S.Ct. at 115. There is something for everyone in these two decisions. Defendants take comfort from so much of Warner as upheld that company's right to copy not only the basic ingredients of Lilly’s product but their col- or, taste and smell; plaintiff emphasizes the" }, { "docid": "23354837", "title": "", "text": "Corp., 316 U.S. 265, 280 [62 S.Ct. 1070, 1078, 86 L.Ed. 1461] (1942), [and] it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G.S. Suppiger Co., 314 U.S. 488, 492 [62 S.Ct. 402, 405, 86 L.Ed. 363] (1942), Finally, and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article — including the right to make it in precisely the shape it carried when patented — passes to the public. Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 120-122 [59 S.Ct. 109, 114-115, 83 L.Ed. 73] (1938); Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185 [16 S.Ct. 1002, 1008, 41 L.Ed. 118] (1896). Sears, Roebuck & Co. v. Stiffel Co., supra, 376 U.S. at 230, 84 S.Ct. at 788. To avoid undermining the purpose of the patent laws to place useful innovations in the public domain after expiration of a limited monopoly, courts must be sensitive to whether a grant of trade dress protection would close all avenues to a market that is otherwise open in the absence of a valid patent. See Prufrock Ltd., Inc. v. Lasater, supra, 781 F.2d at 132-33; Sicilia di R. Biebow & Co. v. Cox, supra, 732 F.2d at 428; Sunbeam Corp. v. Equity Industries Corp., supra, 635 F.Supp. at 636; cf. In re Deister Concentrator Co., Inc., 289 F.2d 496, 504 (Cust. & Pat. App. 1961) (noting that the reason for refusing to protect functional elements against copying is not that they “cannot or do not indicate source to the purchasing public but that there is an overriding public policy of preventing their monopolization, of preserving the public right to copy”). In the instant case, the District Court does not appear to have considered whether any feasible shingled rainjacket could be manufactured that would not appear similar in key respects to Stormy Clime’s COOL IT rainjacket. Cf. LeSportsac, supra, 754 F.2d at 77 (noting that “[f]or example, the cotton carpet tape and carrying straps could be placed differently, contrasted" }, { "docid": "9000665", "title": "", "text": "copying of product shapes, the Supreme Court has ruled repeatedly over the years that the right to copy must prevail. See Bonito Boats, 489 U.S. at 167-68, 109 S.Ct. at 986; Sears, 376 U.S. at 232-33, 84 S.Ct. at 789; Compco, 376 U.S. at 235, 238, 84 S.Ct. at 780-81, 782; Kellogg, 305 U.S. at 119-22, 59 S.Ct. at 113—15; Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185, 16 S.Ct. 1002, 1008, 41 L.Ed. 118 (1896). Applying the common law of unfair competition, the Court held in Kellogg that it was not unfair competition for Kellogg Co. to copy National Biscuit Co.’s pillow-shaped shredded wheat cereal after invalidation of the design patent for the cereal shape and expiration of the utility patents for the machines to make it, where Kellogg had made reasonable efforts to distinguish its product by using a different carton, label, company name, and biscuit size. See Kellogg, 305 U.S. at 119-22, 59 S.Ct. at 113-15. In Singer, the Court reached the same conclusion regarding the defendant’s copying of Singer sewing machines after their patents had expired. See Singer, 163 U.S. at 185-202, 16 S.Ct. at 1008-15. Sears and Compco pitted patent law’s public domain principles against state unfair competition statutes with respect to product copying where patents had been invalidated. In both cases, the Court again held that patent law’s public domain concept must prevail over unfair competition concerns about consumer confusion where those concerns arose solely from the product copying. See Sears, 376 U.S. at 232, 84 S.Ct. at 789; Compco, 376 U.S. at 235, 238, 84 S.Ct. at 780-81, 782. In 1989, in Bonito Boats, the Court yet again addressed the copying of product shapes, and, because of the same patent law public domain concerns, struck down another state statute, this one prohibiting the use of the direct-molding process to copy unpatent-ed boat hulls. Bonito Boats, 489 U.S. at 167-68, 109 S.Ct. at 986. Vornado would have us ignore these holdings, and we must acknowledge that distinguishing Sears, Compco, and/or Bonito Boats has become a veritable jurisprudential art form in recent" }, { "docid": "6144409", "title": "", "text": "376 U.S. 225, 232-33, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964) (citing G. Ricordi & Co. v. Haendler, 194 F.2d 914, 916 (2d Cir.1952)). In Sears, the question was whether the defendant, Sears Roebuck & Co., could be held liable under state law for copying a lamp design whose patent protection had expired. Id. at 225-26, 84 S.Ct. 784. The Court explained that “when the patent expires the monopoly created by it expires, too, and the right to make the article- — including the right to make it in precisely the shape it carried when patented — passes to the public.” Id. at 230, 84 S.Ct. 784 (citing Kellogg Co. v. Nat’l Biscuit Co., 305 U.S. 111, 120-22, 59 S.Ct. 109, 83 L.Ed. 73 (1938) and Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185, 16 S.Ct. 1002, 41 L.Ed. 118 (1896)). The Court further clarified that “[a]n unpatentable article, like an article on which the patent has expired, is in the public domain and may be made and sold by whoever chooses to do so.” Id. at 231, 84 S.Ct. 784; see also Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989). Roslin’s claimed clones are exact genetic copies of patent ineligible subject matter. Accordingly, they are not eligible for patent protection. II However, Roslin argues that its claimed clones are patent eligible because they are distinguishable from the donor mammals used to create them. First, Roslin contends that “environmental factors” lead to phenotypic differences that distinguish its clones from their donor mammals. A phenotype refers to all the observable characteristics of an organism, such as shape, size, color, and behavior, that result from the interaction of the organism’s genotype with its environment. A mammal’s phenotype can change constantly throughout the life of that organism not only due to environmental changes, but also the physiological and morphological changes associated with aging. Roslin argues that environmental factors lead to phenotypic differences between its clones and their donor mammals that render their claimed subject matter patentable. However, these differences are" }, { "docid": "11311023", "title": "", "text": "already “paid the congressionally mandated price for disclosure.” Id. at 152, 109 S.Ct. at 978. It is self evident that on the expiration of a patent the monopoly granted by it ceases to exist, and the right to make the thing formerly covered by the patent becomes public property. It is upon this condition that the patent is granted. It follows, as a matter of course, that on the termination of a patent there passes to the public the right to make the machine in the form in which it was constructed during the patent. Kellogg Co. v. Nat. Biscuit Co., 305 U.S. Ill, 120, 59 S.Ct. 109, 114, 83 L.Ed. 73 (1938), quoting Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185, 16 S.Ct. 1002, 1008, 41 L.Ed. 118 (1896). On the one hand then, trademark law allows a producer to prohibit the copying of a product feature which serves as a signifier of source in order to preserve his reputation and the goodwill consumers have for his brand. On the other hand, effective competition and the penumbra of the patent laws require that competitors be able to slavishly copy the design of a successful product. [T]he plaintiff has the right not to lose his customers through false representations that those are his wares which in fact are not, but he may not monopolize any design or pattern, however trifling. The defendant, on the other hand, may copy plaintiffs good slavishly down to the minutest detail: but he may not represent himself as the plaintiff in their sale. Bonito Boats, 489 U.S. at 157, 109 S.Ct. at 981, quoting Crescent Tool Co. v. Kilborn & Bishop Co., 247 F. 299, 301 (2d Cir.1917) (L. Hand, J.). To police this distinction courts require as a prerequisite to protection that trade dress that is not inherently distinctive have acquired secondary meaning. “ ‘[S]econdary meaning’ is 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.’ ” Qualitex Co. v. Jacobson" }, { "docid": "11783348", "title": "", "text": "that have followed it seem to have taken lightly the emphasis placed on the right to copy by decisions of the Supreme Court not only recently but stretching back for a century. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989); Sears, Roebuck & Co. v. Stiffel, 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964); Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938); Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 16 S.Ct. 1002, 41 L.Ed. 118 (1896). While I have the greatest respect for the Federal Circuit, its decisions do not bind us. I think those decisions should not be followed when they seem , to be so much in conflict with relevant \"Supreme Court authority. The essential issue before us is whether to follow lower court cases that lack the endorsement of the Supreme Court and that defeat the important right to copy unpatented articles recently proclaimed yet again by the Supreme Court in Bonito Boats, 489 U.S. at 151-153, 109 S.Ct. at 977-79. See also Pegram, Trademark Protection, at 18-23. This is a crucially important issue for the maintenance of a free and competitive economy. We should not hesitate to go back to fundamentals in the analysis of the problem. The majority correctly states the two basic arguments presented, by Kohler for denying federal trademark registration to product configurations. Kohler contends that the practice is an unconstitutional violation of the Patent Clause of the Constitution and is anticompetitive. These are both fundamental questions and the majority has been unable to answer them at a fundamental level. The Supreme Court has made clear that the patent monopoly which may be secured by obtaining a design patent on a product may not be indefinitely extended through the use of a federal trademark on the product configuration. Thus, in Scott Paper Co. v. Marcalus Mfg. Co., 326 U.S. 249, 66 S.Ct. 101," }, { "docid": "14756741", "title": "", "text": "law seeks to foster and reward invention by providing the inventor with a monopoly of limited duration; in return for that reward, the inventor must disclose his invention and dedicate it to the public. Stemming from the inventor’s dedication of the invention to the public, as the district court correctly noted, a “long line” of Supreme Court cases have held that federal patent law creates a right to copy inventions to which patent protection has been extended once the patent expires. The Supreme Court has explained this right to copy thusly: It is self evident that on the expiration of a patent the monopoly created by it ceases to exist, and the right to make the thing formerly covered by the patent becomes public property. It is upon this condition that the patent is granted. It follows, as a matter of course, that on the termination of the patent there passes to the public the right to make the machine in the form in which it was constructed during the patent. Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185, 16 S.Ct. 1002, 1008, 41 L.Ed. 118 (1896). See also Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 165, 109 S.Ct. 971, 985, 103 L.Ed.2d 118 (1989) (“For almost 100 years it has been well established that in the case of an expired patent, the federal patent laws do create a federal right to ‘copy and use.’”) (emphasis in original); Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 230, 84 S.Ct. 784, 788, 11 L.Ed.2d 661 (1964) (“when the patent expires the monopoly created by it expires, too, and the right' to make the article-including the right to make it in precisely the shape it carried when patented — passes to the public”); Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 119-20, 59 S.Ct. 109, 114, 83 L.Ed. 73 (1938) (“upon expiration of the patents, the form ... was dedicated to the public.”). Upon, closer inspection, these cases are distinguishable from the present one, and their findings are not determinative here. In" }, { "docid": "22641673", "title": "", "text": "147, 152-153 (1950); Atlantic Works v. Brady, 107 U. S. 192,199-200 (1883). Once the patent issues, it is strictly construed, United States v. Masonite Corp., 316 U. S. 265, 280 (1942), it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488, 492 (1942), the pat-entee’s control over the product when it leaves his hands is sharply limited, see United States v. Univis Lens Co., 316 U. S. 241, 250-252 (1942), and the patent monopoly may not be used in disregard of the antitrust laws, see International Business Machines Corp. v. United States, 298 U. S. 131 (1936); United Shoe Machinery Corp. v. United States, 258 U. S. 451, 463-464 (1922). Finally, and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article — including the right to make it in precisely the shape it carried when patented — passes to the public. Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 120-122 (1938); Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 185 (1896). Thus the patent system is one in which uniform federal standards are carefully used to promote invention while at the same time preserving free competition. Obviously a State could not, consistently with the Supremacy Clause of the Constitution, extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents. To do either would run counter to the policy of Congress of granting patents only to true inventions, and then only for a limited time. Just as a State cannot encroach upon the federal patent laws directly, it cannot, under some other law, such as that forbidding unfair competition, give protection of a kind that clashes with the objectives of the federal patent laws. In the present case the “pole lamp” sold by Stiffel has been held not to be entitled to the protection of either a mechanical or a design" }, { "docid": "21011269", "title": "", "text": "district court erred when it rejected Anti-Monopoly’s demand for a jury trial. We consider each of these contentions in turn. II The invalidity issue is not one of easy resolution. Both parties agree that Parker Brothers’ MONOPOLY trademark has become incontestable unless: (1) MONOPOLY was, when Parker Brothers first registered the mark, or has since become, the common descriptive name (“generic” name) of the registered article, 15 U.S.C. §§ 1064(c), 1065(4); or (2) Parker Brothers obtained its registration fraudulently, 15 U.S.C. § 1064(c). During final argument in the district court, however, counsel for Anti-Monopoly conceded that he had failed to prove fraud. Thus, Anti-Monopoly’s sole remaining contention regarding the invalidity of the MONOPOLY trademark is that the term Monopoly was originally or has become the generic name for an article. A. The Genericness Doctrine The United States encourages invention and development of new products, ideas, and systems by granting, pursuant to the patent laws, limited monopolies over the manufacture and sale of such products. See U.S.Const. art. I, § 8, cl. 8; 35 U.S.C. § 1 et seq. But patent protection is a sharply confined exception to a general “principle of free competition in business ideas and intellectual creations.” 1 J. McCarthy Trademarks and Unfair Competition, § 1:1 at 2 (1973). Thus, when a patent expires, the idea, system, or product passes into the public domain and may be freely copied, so long as the copyist uses reasonable care to prevent the public from misidentifying his product as that of the original producer. See Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 117-19, 59 S.Ct. 109, 83 L.Ed. 73 (1938); Saxlehner v. Wagner, 216 U.S. 375, 381, 30 S.Ct. 298, 54 L.Ed. 525 (1910); Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185-86, 16 S.Ct. 1002, 41 L.Ed. 118 (1896). Trademarks, see 15 U.S.C. § 1051 et seq., are not properly used as patent substitutes to further or perpetuate product monopolies. Smith v. Chanel, Inc., 402 F.2d 562, 566-69 (9th Cir. 1968). Rather, trademark policies are designed (1) to protect consumers from being misled as to the" } ]

[ { "docid": "9394369", "title": "", "text": "the stated claim. Rosado v. Wyman, at 403 n. 3, 90 S.Ct. at 1213 n. 3 and cases there cited. Accord, Meredith v. Allen, etc., 397 F.2d 33, 35 (C.A.6, 1968). . Hospital Survey & Construction Act, 42 U.S.C.A. § 291 et seq. (Supp.1970). See 42 C.F.R. §§ 53.1,134. See generally, Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959, 963-965 (C.A.4, 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). . Defendants do not argue that simply because the Hospital terms a physician’s use of the Hospital’s facilities a “privilege” that a restriction of the privilege should receive any less protection under the Fourteenth Amendment. In not making this argument they have exercised sound judgment. Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); see Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 L.Ed. 287 n. 8, 9 (filed March 23, 1970). . Sams v. Ohio Valley Gen. Hosp., 413 F.2d 826 (C.A.4, 1969); Shulman v. Washington Hosp. Center, 121 U.S.App.D.C. 64, 348 F.2d 70 (C.A.4, 1965); Simkins v. Moses H. Cone Mem. Hosp., 323 F.2d 959 (C.A.4, 1963). See “The Physician’s Right to Hospital Staff Membership: The Public-Private Dichotomy,” Wash.L.Q. 485 (1966). . While the timing of the hearing required by Due Process is often not crucial, as in the case of a student’s suspension from classes for a few days pending a hearing, Madera v. Board of Educ., 886 F.2d 778 (C.A.2, 1967), cert. denied, 390 U.S. 1028, 88 S.Ct. 1416, 20 L.Ed.2d 284 (1968), the situation has been viewed as very different when the suspension is permanent. Woods v. Wright, 334 F.2d 369 (C.A.5, 1964). . It is often, very difficult to decide when a hearing requires the assistance of counsel. Compare Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969), and Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), with Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234 (1959), Madera v. Board" } ]

[ { "docid": "2607018", "title": "", "text": "(7th Cir. 1971). In Simkins v. Moses Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), the court held that the use of Hill-Burton funds to establish a separate but equal hospital provided a basis for a § 1983 suit. There, however, the state was deeply involved in the objectionable activity, since it authorized the dual hospital system and directed the disbursement of Hill-Burton funds to perpetuate it. Hence the decision is distinguishable. A number of other cases have held that a private hospital receiving Hill-Burton funds acts under color of state law if it is the only hospital in the area. In Shulman v. Washington Hospital Center, 319 F.Supp. 252 (D.C.1970), the court held that constitutional standards could be imposed on hospitals which “were the only hospitals in the area, and thus acquired a quasi-public character,” at 255. A similar result was reached in O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973) (hospital acted under color of state law where it was the only hospital in the city, had Hill-Burton funding, had facilities which were leased from the county in return for their maintenance and operation). See also Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th Cir. 1969); Meredith v. Allen County War Memorial Hospital Com’n, 397 F.2d 33 (6th Cir. 1968). Here, however, Sacred Heart Hospital is not in such a dominant or monopoly situation. Indeed plaintiff can scarcely make this argument since she in fact availed herself of the services of one of the other hospitals in the city in obtaining a tubal ligation. Thus we find that the provision of 13 percent of Sacred Heart General Hospital’s construction costs since 1961 through the Hill-Burton and HEW programs, exemption from taxes and regulation by the state do not provide a basis for a § 1983 suit. Hence, it was proper to dismiss the complaint. III. MOOTNESS The dismissal of appellant’s request for equitable relief can also be sustained on the ground that the issue is moot in light of appellant’s sterilization. The parties have stipulated that “Surgical sterilization by" }, { "docid": "23551034", "title": "", "text": "went into executive session where it voted to terminate Dr. Christhilf’s privileges. Subsequently, the court vacated the temporary restraining order and denied further injunctive relief. It held that Dr. Christhilf had failed to exercise self-help in obtaining documents which were available to him as a member of the hospital staff and that by leaving the meeting he waived his right to the specific procedural protections which the court had previously afforded him. II The district court properly held that the involvement of the federal and state governments through the HillBürton Program and the Anne Arundel County grant sufficiently implicated the state in the affairs of this otherwise private institution to subject the hospital to the restrictions which the fourteenth amendment places upon state action. Cf. Sams v. Ohio Valley General Hospital Ass’n, 413 F.2d 826 (4th Cir. 1969); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963) cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). The district court also correctly held that Dr. Christhilf’s hospital privileges could not be terminated without affording him procedural due process. It premised this ruling on the finding that a denial of privileges might effectively foreclose Dr. Christhilf’s practicing in the area because of the harm to his professional reputation and because of the lack of other facilities comparable to those of the hospital within 20 miles of Annapolis. Consequently, the court properly ruled that Dr. Christhilf’s complaint stated a cause of action against the hospital under 42 U.S.C. § 1983. Jurisdiction, therefore, aptly rested on 28 U.S. C. § 1343(3); Suarez v. Weaver, 484 F.2d 678 (7th Cir. 1973); Meredith v. Allen County War Memorial Hospital Com’n., 397 F.2d 33 (6th Cir. 1968); Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966). While the parties have devoted a great deal of their argument to the dispute over the extent of discovery to which Dr. Christhilf was entitled, we believe that this question is only symptomatic of the basic issue. The fundamental question is whether the board denied Dr. Christhilf due process by ruling through its attorney" }, { "docid": "13239029", "title": "", "text": "Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964); Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964); Smith v. Hampton Training School, 360 F.2d 577 (4th Cir. 1966). The second departure from a strict adherence to the three pronged test would appear to exist in the “public function” cases. These involve activities which have long been the exclusive province of state or municipal government. “When a private person is performing, pursuant to a right accorded by statute, a function traditionally performed by the State, the acts of the individual [or institution] may be described as state action.” Bond v. Dentzer, 494 F.2d 302, at 311 (2d Cir. 1974); Simkins v. Moses H. Cone Memorial Hospital, supra. Plaintiff contends that such a “public function” is present here. The New York State Constitution, he asserts, places responsibility for public health squarely in the hands of the state. Proceeding from this foundation the argument is then made that “New York has elected to effect this policy by means of a coordinated plan of building and maintaining public hospitals for certain functions and areas, and by certifying and regulating private hospitals as part of the carrying out of this policy.” The “public function” approach has met with some success in the Supreme Court. See Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) [the company town]; Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) [party primaries]; Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966) [public parks]; and Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968) [public walkways and parking areas of a privately owned shopping center], I do not find the reasoning of these cases to be applicable to the private hospital. Initially, it appears to me that the decisions of our Court of Appeals in Powe v. Miles, 407 F.2d 73 (2d Cir. 1968) and Grafton v. Brooklyn Law" }, { "docid": "23541254", "title": "", "text": "he was not entitled to a trial de novo as to his competency to remain on the staff at Lutheran. The judicial inquiry available to him was limited to a consideration of whether his ultimate removal from the staff involved deprivations of procedural or substantive rights guaranteed by the fourteenth amendment. In this connection we call attention to the following pertinent language appearing in Wood- bury v. McKinnon, supra, 447 F.2d at 842-43: Once having become a member of the hospital surgical staff Dr. Wood-bury had a right to reappointment until the governing authorities determined after a hearing conforming to the minimum requirements of procedural due process that he did not meet the reasonable standards of the hospital. The decision resulting from the hearing must be untainted by irrelevant considerations and supported by sufficient evidence to free it from arbitrariness, capriciousness or unreasonableness. This is the extent to which Dr. Woodbury is entitled to substantive due process under the United States Constitution. Foster v. Mobile County Hospital Board, 398 F.2d 227 (5th Cir. 1968). A doctor has no constitutional right to practice medicine in a public hospital. Hayman v. Galveston, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927). However, there is no dispute that the operation of this hospital is state action and that it is required to meet the provisions of the Fourteenth Amendment in the admission of physicians to its staff. Foster v. Mobile County Hospital Board, supra; Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966); Meredith v. Allen County War Memorial Hospital Comm., 397 F.2d 33 (6th Cir. 1968); see Annot. 37 A.L.R.3d 645 (1971). The Constitution, however, does not prevent the hospital from establishing standards for admission geared to the purpose of providing adequate hospital care. This court has recently spoken to the broad discretion that must be given to the governing board of a hospital in setting the standards and in admitting physicians to its staff. Sosa v. Board of Managers of Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir. 1971). Judge Goldberg there placed in proper focus the restraint that" }, { "docid": "13239059", "title": "", "text": "Meredith v. Allen County War Memorial Hospital Com’n, 397 F.2d 33, 35 (6th Cir. 1968). No such situation exists in the instant case and it is therefore unnecessary to reach this issue. . Iti is doubtful that the Supreme Court would have applied the “public function” theory to the park in Evans had the complaint concerned the discharge of groundskeepers without a full hearing complete with all the protections of due process. . Friendly, The Dartmouth College Case and the Public-Private Penumbra, 12 Texas L.Q. (2d Supp.) 141. Judge Friendly recently reiterated this view in Wahba v. New York University, 492 F.2d 96, 100 (2d Cir. 1974), concluding that “decisions dealing with one form of state involvement and a particular provision of the Bill of Rights [are not] at all determinative in passing upon claims concerning different forms of government involvement and other constitutional guarantees . . ..” . The Hill-Burton Act, 42 U.S.C. § 291 et seq. provides federal grants to assist in the maintenance and construction of hospitals. “The money is funneled through state agencies to individual hospitals which are engaged in building projects.” Mulvihill v. Julia L. Butterfield Memorial Hospital, 329 F.Supp. 1020, 1023 (S.D.N.Y.1971). [Emphasis added]. . See Sams v. Ohio Valley General Hospital, 413 F.2d 826 (4th Cir. 1969) ; Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966) ; Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964) ; Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). All of these cases, with the exception of Sams, involved racial discrimination however. Sams concerned denial of equal protection to non-residents seeking staff privileges. Although all of the four cases are easily distinguishable on their facts it is fairly obvious that the Fourth Circuit would rule no differently faced with the facts of the instant case. . See Bricker v. Sceva Speare Memorial Hospital, 339 F.Supp. 234, 237 (D.N.H. 1972), where the court said: “I recognize that the weight of authority holds that the acceptance of" }, { "docid": "2055781", "title": "", "text": "remanded, 560 F.2d 575 (3d Cir. 1977) (remanded to consider motion to amend complaint to establish jurisdiction on other grounds), or to refuse to perform abortions, see Doe v. Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973). The Fourth Circuit found state action where a hospital, which had received Hill-Burton funds, refused to give staff privileges or treat certain patients on account of their race. At that time, the statute and regulations provided that a hospital did not have to be available to all if separate facilities were available. See Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963) (en banc), cert. denied, 376 U.S. 938, 84 S.Ct. 793,11 L.Ed.2d 659 (1964). In a later case involving a similar allegation, the court found state action not through the statutory authorization for discrimination but through several facts: the hospital had a deed from the city and county with a reverter clause, it had tax-exempt status, it exercised the power of eminent domain, and it received subsidies for capital construction from the state and federal governments. See Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964). More recently, the Fourth Circuit has decided that the receipt of Hill-Burton funds is sufficient to make even the decision to deny a doctor staff privileges state action. See Christhilf v. Annapolis Emergency Hospital Ass’n, Inc., 496 F.2d 174 (1974). This Circuit has rejected the conclusion reached in Christhilf. It has found state action in cases involving denial of staff privileges where the hospitals were in part governed by, or the governing body was appointed by, public officials. See O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973); Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429 (6th Cir. 1971) (per curiam); Meredith v. Allen County War Memorial Hospital Comm’n, 397 F.2d 33 (6th Cir. 1968). However, that the hospital was regulated by state and federal governments and had received funds under the Hill-Burton Act was not enough for a private hospital’s decision to deny a doctor staff privileges to be state action. Something more than partial federal" }, { "docid": "13239060", "title": "", "text": "state agencies to individual hospitals which are engaged in building projects.” Mulvihill v. Julia L. Butterfield Memorial Hospital, 329 F.Supp. 1020, 1023 (S.D.N.Y.1971). [Emphasis added]. . See Sams v. Ohio Valley General Hospital, 413 F.2d 826 (4th Cir. 1969) ; Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966) ; Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964) ; Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). All of these cases, with the exception of Sams, involved racial discrimination however. Sams concerned denial of equal protection to non-residents seeking staff privileges. Although all of the four cases are easily distinguishable on their facts it is fairly obvious that the Fourth Circuit would rule no differently faced with the facts of the instant case. . See Bricker v. Sceva Speare Memorial Hospital, 339 F.Supp. 234, 237 (D.N.H. 1972), where the court said: “I recognize that the weight of authority holds that the acceptance of Hill-Burton funds is sufficient to cloak a private hospital and its medical staff with a mantle of state law.” Brieher was affirmed by the Court of Appeals for the First Circuit, 468 F.2d 1228 (1st Cir. 1972). The court there did not, however, review the “state action” determination of the trial judge. . See Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970). Cf. Ozlu v. Lock Haven Hospital, 369 F.Supp. 285 (N.D.Pa.1974). . The recent case of Jackson v. NortonChildrens Hospital, 487 F.2d 502 (6th Cir. 1973), cert. denied, - U.S. -, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974), would appear to overrule O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973). See also Place v. Shepherd, 446 F.2d 1239 (6th Cir. 1971) and Meredith v. Allen County War Memorial Hospital, 397 F.2d 33 (6th Cir. 1968). . See Doe v. Beilin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973), apparently overruling Holmes v. Silver Cross Hospital, 340 F.Supp. 125 (N.D.Ill.1972). . See Stanturf v. Sipes, 335 F.2d 224 (8th" }, { "docid": "13239057", "title": "", "text": "age discrimination. That being no part of the claim before me however, there is no need to address this question here. . Article 17 § 3. . Page 5 of plaintiff’s brief. This argument lias been adopted by the Fourth Circuit in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964), and, by the Sixth Circuit in Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968). Both of these cases, however, involved a Board of Trustees consisting of a substantial number of members appointed by state agencies. Furthermore the continued vitality of the Meredith case is placed very much in doubt by the recent decision of Jackson v. Norton-Children’s Hospital, 487 F.2d 502 (6th Cir. 1973), cert. denied, - U.S. -, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974). . No Second Circuit case has come to my attention dealing with applicability of the “public function” argument to private hospitals. For this reason I have resorted to analogy. Although McCabe v. Nassau County Medical Center, 453 F.2d 698 (2d Cir. 1971), indicates at 703, fn 11, that the plaintiff there sought to apply the “public function” theory to hospitals, the court did not feel the need to address itself to the question since the case at bar involved a public hospital. . 407 F.2d at 80. . 478 F.2d at 1140. . Powe v. Miles, 407 F.2d at 80. . Public Health Law § 2806. . Public Health Law - 2805-a. . Evans dealt with the “use” of a municipal park, Marsh and Logan Valley with the “use” of sidewalks and Terry with the exercise of the right to vote. In all four the activity in which the complained of conduct took place was the very one which had been judicially determined as being “governmental in nature.” . This, perhaps, would not be so where the hiring and firing of staff members is done by a commission, the members of which hold office as a result of governmental appointments. See" }, { "docid": "21930606", "title": "", "text": "and to promote the coordination of such research, experiments, and demonstrations and the useful application of their results.” As further amplified in the leading case of Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959, 963 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964): “The Hill-Burton program requires that states wishing to participate must inventory existing facilities to determine hospital construction needs and to develop construction priorities under federal standards. State agencies are designated to perform this function and to adopt state-wide plans to be submitted for the approval of the Surgeon General of the United States . . . The Act provides for grants of federal funds for construction of new or additional facilities for governmentally-owned hospitals and voluntary nonprofit hospitals.” In spite of that, plaintiff cites Simkins, supra, and its progency, see, e. g., Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th Cir. 1969); Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968); Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970), for the proposition that the necessary degree of state participation and involvement is supplied merely by the grant and acceptance of Hill-Burton Funds. Those cases are clearly distinguishable from the one at bar. Simkins itself dealt with the exclusion of certain races, creeds and colors from its facilities. Translated into the analytical framework of this case, the rationale underlying Simkins is this: If the government doles out funds for the construction of hospital facilities, then those facilities must be open to all, regardless of race, creed or color. Since the sole purpose of the Hill-Burton Program is to deliver adequate medical treatment to the citizens of each state through a statewide plan of hospital construction, Mulvihill v. Julia L. Butterfield Memorial Hospital, 329 F.Supp. 1020 (S.D.N.Y.1971), the mere receipt of such funds hardly injects the state or federal government into the everyday operating affairs of this hospital. This was recognized in Ward v. St. Anthony Hospital, 476 F.2d 671, 675 (10th Cir. 1973): “There may be a point in the" }, { "docid": "21930605", "title": "", "text": "Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), stated: “The Court thus recognizes the importance of a connection between the state regulation and the proscribed conduct.” The doctrine to which I thus adhere is that “the state action, not the private action, must be the subject of complaint.” Powe v. Miles, 407 F.2d 73 (2nd Cir. 1968). The avowed purpose of the Hill-Burton Program (Hospital Survey and Construction Act, 42 U.S.C. § 291 et seq.) is: “(a) to assist the several States in the carrying out of their programs for the construction and modernization of such public or other nonprofit community hospitals and other medical facilities as may be necessary, in conjunction with existing facilities, to furnish adequate hospital, clinic, or similar services to all their people; “(b) to stimulate the development of new or improved types of physical facilities for medical, diagnostic, preventive, treatment, or rehabilitative services; and “(c) to promote research, experiments, and demonstrations relating to the effective development and utilization of hospital, clinic, or similar services, facilities, and resources, and to promote the coordination of such research, experiments, and demonstrations and the useful application of their results.” As further amplified in the leading case of Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959, 963 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964): “The Hill-Burton program requires that states wishing to participate must inventory existing facilities to determine hospital construction needs and to develop construction priorities under federal standards. State agencies are designated to perform this function and to adopt state-wide plans to be submitted for the approval of the Surgeon General of the United States . . . The Act provides for grants of federal funds for construction of new or additional facilities for governmentally-owned hospitals and voluntary nonprofit hospitals.” In spite of that, plaintiff cites Simkins, supra, and its progency, see, e. g., Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th Cir. 1969); Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968); Citta v. Delaware Valley" }, { "docid": "3747100", "title": "", "text": "Although the court in Simkins was concerned specifically with the racially discriminatory practices of the Cone Hospital, the policy of Simkins has been expanded to include other questions besides just race. Sams v. Ohio Valley General Hospital Ass’n, 413 F.2d 826 (4th Cir. 1969); see Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964). . Judge Friendly also authored the Powe v. Miles case, supra. DUNIWAY, Circuit Judge (concurring): I concur, but add some observations of my own. Presbyterian Hospital is “private.” It is not owned or operated by the State of California or any of its political subdivisions. No agency of the state selects or is represented on its governing board. Thus several of the cases in which the receipt of Hill-Burton funds or the grant by the state of tax exemption, or both, are mentioned are not in point. See, e. g.: O’Neill v. Grayson County War Memorial Hospital, 6 Cir., 1973, 472 F.2d 1140, 1142-1143;. Chiaffitelli v. Dettmer Hospital, Inc., 6 Cir., 1971, 437 F.2d 429; Sosa v. Board of Managers of Val Verde Memorial Hospital, 5 Cir., 1971, 437 F.2d 173, 174; Foster v. Mobile County Hospital Board, 5 Cir., 1968, 398 F.2d 227, 230; Meredith v. Allen County War Memorial Hospital Commission, 6 Cir., 1968, 397 F.2d 33, 35. Appellant has not shown that there is any California statute or regulation dealing with the procedure or qualifications for staffing the Presbyterian Hospital with doctors. All that is shown is that the hospital’s receipt of substantial Hill-Burton funds does subject certain of its operations to regulation by the state, and that it is exempt from state taxes. Presumably, although we need not so decide, if the hospital took some action under applicable state regulations that action would be “state action.” Our question, then, is narrow: whether other actions by the hospital, not regulated by the state, are “state action” merely because the hospital has received Hill-Burton funds, is tax exempt, and is partially regulated by the state. The answer to this question is “no.” There are many “private” charitable organizations that receive subventions of various kinds" }, { "docid": "13239028", "title": "", "text": "first of these occurs in the area of racial discrimination. Our circuit has long recognized a double “state action” standard: “a less onerous test for cases involving racial discrimination, and a more rigorous standard for other claims”. Jackson v. The Statler Foundation, 496 F.2d 623 (2d Cir. 1974); Lefcourt v. Legal Aid Society, 445 F.2d 1150 (2d Cir. 1971; Wolin v. Port Authority, 392 F.2d 83 (2d Cir. 1968), cert denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275 (1969). As the court stated in Jackson, supra, “conduct which is admittedly part private and part governmental must be more strictly scrutinized when claims of racial discrimination are made.” Plaintiff makes no claim of racial discrimination here and therefore does not permit me to abandon the three pronged test in favor of the standard of “strict judicial scrutiny”. It is noteworthy that an examination of the cases finding state action in the denial or removal of staff privileges by private hospitals reveals that a large number of them concerned claims of racial discrim ination. See Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964); Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964); Smith v. Hampton Training School, 360 F.2d 577 (4th Cir. 1966). The second departure from a strict adherence to the three pronged test would appear to exist in the “public function” cases. These involve activities which have long been the exclusive province of state or municipal government. “When a private person is performing, pursuant to a right accorded by statute, a function traditionally performed by the State, the acts of the individual [or institution] may be described as state action.” Bond v. Dentzer, 494 F.2d 302, at 311 (2d Cir. 1974); Simkins v. Moses H. Cone Memorial Hospital, supra. Plaintiff contends that such a “public function” is present here. The New York State Constitution, he asserts, places responsibility for public health squarely in the hands of the state. Proceeding from this foundation the argument is then made that “New York has" }, { "docid": "10661346", "title": "", "text": "individuals whose freedom of decision-making has, by contract and the reserved governmental power of continuing oversight, been circumscribed substantially more than that accorded an independent contractor, the coloration of state action fairly attaches.” 438 F.2d at 784-785 (footnote omitted). In the instant case, Temple carries out a “specific governmental function”; it is “heavily subsidized”; and its “freedom of decision-making has . . . been circumscribed substantially more than that generally accorded to an independent contractor” by the trustee-appointment and financial accountability provisions of the Act. Hence, “the coloration of state action fairly attaches” to its activities. In a number of cases involving hospitals that received federal funds, subject to state regulation, through the Hill-Burton Act, a finding of “state action” has been based solely on the receipt of Hill-Burton funding. Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963); Meyer v. Massachusetts Eye and Ear Infirmary, 330 F.Supp. 1328 (D.Mass.1971); but see Ozlu v. Lock Haven Hospital, 369 F.Supp. 285 (M.D.Pa.1974). In other hospital cases, the coupling of Hill-Burton funding with governmental appointment of hospital officials has constituted the requisite “state action.” Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429 (6th Cir. 1971); Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968). Both of these elements — governmental appointment of an institution’s officials and receipt of governmental funds subject to state regulation — are present in the instant case. Indeed, a finding of “state action” is even more appropriate here, for Temple’s subsidies flow directly from the Commonwealth, not the federal government. The finding of “state action” in another hospital case, Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964) (en banc), did not turn on the receipt of Hill-Burton funds, but it too supports the result reached here. Summarizing the state’s involvement with the hospital in question, the late Chief Judge Sobeloff said; “we have a reverter supplemented by detailed regulations; the city and county have supplied construction funds for the expansion of the hospital plant; they" }, { "docid": "8673109", "title": "", "text": "lack of agreement among several federal courts as to whether a non-meritorious claim under the Civil Rights Act should be dismissed for lack of jurisdiction or for failure to state a claim. See Campbell v. Glenwood Hills Hospital, Inc., 224 F.Supp. 27, 29 (D.Minn.1963). The proper approach in the unmeritorious ease, except for the obviously frivolous one, would seem to be dismissal on the ground of failure to state a claim. Cf. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). We hold, however, that the instant case should not have been dismissed on either ground, and we therefore reverse. In seeking dismissal of the complaint, defendants contended that their actions had not been under color of state law, and that, in any event, plaintiff had no constitutional right to be a member of the hospital staff and the actions of defendants could therefore not have violated the statute. v Defendant commission members were appointed by the governing body of Allen County to operate the hospital. Moreover, the hospital is the only one in the area and was financed in part by public funds. An institution such as this, serving an important public function and financed by public funds, is sufficiently linked with the state for its acts to be subject to the limitations of the Fourteenth Amendment. Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959 (4th Cir. 1963), cert, denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964); Kerr v. Enoch Pratt Free Library, 149 F.2d 212 (4th Cir. 1945), cert, denied, 326 U.S. 721, 66 S.Ct. 26, 90 L. Ed. 427 (1945); cf. Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966). Because the members of the commission hold office as a result of governmental appointment and because they administer a public facility, their actions must be regarded as having been taken under color of law. Hence, the provisions of § 1983 and § 1985(3) are applicable to them. Although defendant physicians do not exercise the governmental powers of the commission, plaintiff may nevertheless maintain an" }, { "docid": "22275460", "title": "", "text": "GOLDBERG, Circuit Judge: This case poses the problem of the conflict between the right of a doctor to be on the staff of a hospital and the obligation of the hospital to exact professional competence and-the ethical spirit of Hippocrates as conditions precedent to such staff privileges. Dr. Robert Sosa brought this suit against the Board of Managers of the Val Verde Memorial Hospital, claiming that the Board had violated the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution in denying him admission to the Medical Staff of the hospital. The Board of Managers is the governing body of the Val Verde Memorial Hospital, which is a county institution established pursuant to Vernon’s Ann.Tex.Rev.Civ.Stat. arts. 4478 to 4494r-3. The Board is appointed by the County Commissioners Court of Val Verde County, and the hospital was constructed and is maintained and operated with county funds supplemented by federal aid under the Hill-Burton Act, 42 U.S.C.A. § 291 et seq. It is perfectly clear, therefore, that the Board of Managers of the Val Verde Memorial Hospital is a public body receiving both state and federal funds. Its acts are thus state acts and must comport with the provisions of the Fourteenth Amendment. Sams v. Ohio Valley General Hospital Association, 4 Cir. 1969, 413 F.2d 826; Foster v. Mobile County Hospital Board, 5 Cir. 1968, 398 F.2d 227; Meredith v. Allen County War Memorial Hospital Commission, 6 Cir. 1968, 397 F.2d 33; Simkins v. Moses H. Cone Memorial Hospital, 4 Cir. 1963, 323 F.2d 959, cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659. Dr. Sosa’s dispute with the Board began in 1967 when he first sought admission to the Medical Staff of the hospital. This initial application was refused. Throughout 1968 Dr. Sosa made various additional attempts to gain admission to the staff, but these efforts were unavailing. His final application was submitted in August, 1969, and, like those which had preceded it, met with refusal. This suit was filed October 22, 1969, and alleged that the rejection of Dr. Sosa’s application by" }, { "docid": "22275461", "title": "", "text": "of the Val Verde Memorial Hospital is a public body receiving both state and federal funds. Its acts are thus state acts and must comport with the provisions of the Fourteenth Amendment. Sams v. Ohio Valley General Hospital Association, 4 Cir. 1969, 413 F.2d 826; Foster v. Mobile County Hospital Board, 5 Cir. 1968, 398 F.2d 227; Meredith v. Allen County War Memorial Hospital Commission, 6 Cir. 1968, 397 F.2d 33; Simkins v. Moses H. Cone Memorial Hospital, 4 Cir. 1963, 323 F.2d 959, cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659. Dr. Sosa’s dispute with the Board began in 1967 when he first sought admission to the Medical Staff of the hospital. This initial application was refused. Throughout 1968 Dr. Sosa made various additional attempts to gain admission to the staff, but these efforts were unavailing. His final application was submitted in August, 1969, and, like those which had preceded it, met with refusal. This suit was filed October 22, 1969, and alleged that the rejection of Dr. Sosa’s application by the Board was arbitrary and discriminatory and further constituted a denial of procedural due process by reason of the Board’s failure to supply him with any reasons for its action. The district court, after trial, found that the refusal of the Board to allow Dr. Sosa staff privileges had under the circumstances violated the doctor’s constitutional rights secured by the Fourteenth Amendment. The court enjoined the Board from refusing Dr. S.osa membership on the Medical Staff, but conditioned his admission on “such reasonable limitations as the Board of Managers may formally impose under their bylaws.” Before the hospital acted on this order, Dr. Sosa made a motion before the district court that the defendants be held in contempt for failing to allow him admission to the hospital staff pursuant to the court’s order. The defendants countered with a motion to stay the injunction pending appeal. On March 17, 1970, the district court denied the motion for stay and ordered that Dr. Sosa “be afforded membership on the Medical Staff of Val Verde Memorial Hospital for" }, { "docid": "1372240", "title": "", "text": "and the fifth is the Judge of the Common Pleas Court of Miami County. Under applicable case law, this is enough to give the hospital the character of a public agency. Meredith v. Allen County War Memorial Hospital, 397 F.2d 33, 35 (6th Cir. 1968); see also Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Bank of Delaware v. Buckson, 255 A.2d 710, 713-714 (Del.Ch.1969). Moreover, the District Court’s order recites that the hospital receives 6% of its budget from a one-half mill county tax levy and 8% of its budget from federal funds disbursed under the Hill-Burton Act. These facts are also fatal to appellees’ contention that Dettmer Hospital is not a public institution actionable under § 1983. Meredith, supra; Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959, 967 (4th Cir. 1963); see also Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). As recognized by the District Court, a physician may bring an action under § 1983 against a public hospital for arbitrary or discriminatory revocation of staff privileges. Meredith, supra. Appellant’s complaint stated that The action of the Executive Committee of the staff of Dettmer Hospital, Inc., the action of the Credentials Committee and the Joint Advisory Committee of Dettmer Hospital, Inc., sitting in joint session, and the action of the Board of Governors of Dettmer Hospital, Inc., were arbitrary, discriminatory, and unreasonable; that said action was not in accordance with the by-laws and rules and regulations of the medical staff of Dettmer Hospital; there is no basis in the by-laws and rules and regulations of the medical staff of Dettmer Hospital are conflicting, vague, and provide inadequate standards for membership of the medical staff; that the application of the by-laws, rules and regulations of the medical staff of Dettmer Hospital, and the hearings provided thereunder, have been illegal in that they were not uniformly applied, and they have deprived the Plaintiff of due process of law and equal protection under the law as guaranteed by the Fifth and Fourteenth Amendments of the Constitution" }, { "docid": "15495167", "title": "", "text": "attend.” In response, the Hospital reiterated its invitation. Appellant then brought suit in the District Court alleging that the Hospital’s action was contrary to its bylaws and, in any event, that the Hospital is so heavily supported by public funds that its action is subject to constitutional standards requiring notice, hearing and stated reasons, all of which were absent here. The District Court dismissed the suit on the grounds that the Hospital was a “private institution” and that the Hospital had violated no procedural requirements in its bylaws. This appeal followed. In this court, the Hospital notes its reiterated invitation that appellant meet with the Medical Advisory Board, and state that its “reasons for excluding [appellant from the courtesy staff] * * are now, and have always been, available to Dr. Shulman were he to inquire of them outside the context of a lawsuit.” It is thus apparent that appellant had— and continues to have — access to administrative remedies in which he could question his exclusion from the staff. Because appellant failed to exhaust these remedies before bringing this action, we remand the case with instructions to dismiss without prejudice to further proceedings following exhaustion of remedies. So ordered. . Appellant relied on Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964); and Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964). . Appellee’s brief at p. 20. . If, after appellant’s appearance, the Medical Advisory Board adheres to its prior recommendation, the subsequent administrative procedures applicable under Hospital bylaws are not clear. The bylaws provide that appointments to the medical staff are “made annually on a fixed date, for the year January 1 through December 31” (§ 4A) and that “the Board of Trustees may revoke the appointment of any member * * * after having referred the question to the Joint Conference Committee for investigation and report.” (§ 4B). This Committee, consisting of the Hospital Administrator," }, { "docid": "11259394", "title": "", "text": "been described, the action of the Hospital in dismissing plaintiff from the staff was private and not state action and that subject matter jurisdiction did not exist. Alternatively, the district court held that even if it had jurisdiction, plaintiff waived his right to complain of any constitutional deprivation when he withdrew his request for a hearing as provided by the Hospital’s rules. Since we agree with the district court in its basic holding, we do not reach the question of waiver. There is no question that when those in charge of the affairs of a public hospital deal with staff members, patients or would-be patients, the dealings must conform to the requirements and prohibitions of the fourteenth amendment. And, if the authorities of a public hospital, acting under color of law, deprive a person of a federally protected right, he may seek redress under § 1983. Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975), cert. granted,-U.S.-, 96 S.Ct. 3220, 49 L.Ed.2d-(1976); Woodbury v. McKinnon, 447 F.2d 839 (5th Cir. 1971). We are dealing, however, with a private hospital. In Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964), it was held that the fact that private hospitals in North Carolina had received Hill-Burton funds was sufficient to give the federal courts § 1983 jurisdiction of a suit brought by Negro physicians for the purpose of ending racial discrimination that was being practiced in the hospitals. The Fourth Circuit has consistently followed that holding and has extended it to cases not involving racial or similar types of discrimination. Doe v. Charleston Area Medical Center, 529 F.2d 638 (4th Cir. 1975); Duffield v. Charleston Area Medical Center, 503 F.2d 512 (4th Cir. 1974); Christhilf v. Annapolis Emergency Hospital Ass’n, 496 F.2d 174 (4th Cir. 1974); Sams v. Ohio Valley General Hospital Ass’n, 413 F.2d 826 (4th Cir. 1969). As will be seen, other circuits have come to the opposite conclusion. The question first came before this court in Stanturf v. Sipes, 335 F.2d 224 (8th" }, { "docid": "8837053", "title": "", "text": "OPINION OF THE COURT PER CURIAM: This appeal represents another of the recurring attempts to invoke federal court jurisdiction in resolving disputes between physicians and private hospitals. The plaintiff, a surgeon, alleges his staff privileges and office lease at the Paoli Memorial Hospital, Chester, Pennsylvania, were terminated without due process of law and in denial of equal protection. He brought suits under 42 U.S.C. (j 1983, contending that because the nonprofit hospital corporation had received funds under the Hill-Burton Act, 42 U.S.C. §§ 291 et seq., is tax exempt, and receives other benefits from the state, its activity constitutes state action. The district court dismissed the complaints for failure to state a claim upon which relief can be granted. We affirm. Physicians’ efforts to invoke Hill-Burton funding as a basis for a § 1983 claim have been a fruitful source of litigation. The majority of circuits have held the receipt of Hill-Burton funds, Medicare and Medicaid payments, and the usual hospital licensing provisions do not constitute state action. Schlein v. Milford Hospital, Inc., 561 F.2d 427 (2d Cir. 1977); Greco v. Orange Memorial Hospital Corporation, 513 F.2d 873 (5th Cir.), cert. denied, 423 U.S. 1000, 96 S.Ct. 433, 46 L.Ed.2d 376 (1975); Jackson v. Norton-Children’s Hospitals, Inc., 487 F.2d 502 (6th Cir. 1973), cert. denied, 416 U.S. 1000, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974); Doe v. Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973); Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976); Watkins v. Mercy Medical Center, 520 F.2d 894 (9th Cir. 1975); Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973). The Court of Appeals for the Fourth Circuit has espoused a contrary view, originating in the case of Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964), in which a claim of racial discrimination was asserted. That court extended the principle to situations involving medical staff privileges. See, e. g., Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512 (4th Cir. 1974). The district court holdings" } ]

[ { "docid": "22378250", "title": "", "text": "of Rule 56 and the consequences of such a motion, Klingele’s notice purpose is fulfilled even though the prisoner does not receive the notice from the district court, so long as notice is given and its contents are complete. We therefore overrule Arreola v. Mangaong, 65 F.3d 801. We find, however, that the notice given by-defendants in this case was deficient in several respects. Accordingly, we withdraw the panel’s opinion concerning Klingele’s fair notice requirement, and reverse the district court’s grant of summary judgment. I. FACTS AND PROCEDURAL BACKGROUND Lee A. Rand (“Rand”) is a California state prison inmate. He filed a civil rights complaint under 42 U.S.C. § 1983 against several prison officials, most of whom are medical officers (“defendants”). Rand was confined to the prison infirmary of the California Correctional Institution at Tehachapi (“CCI”), after testing HIV-positive. He remained at CCI for six months pending his transfer to the California Medical Facility at Vacaville, which was better able to care for HIV-positive inmates. Rand claims that his Eighth Amendment rights were violated while he was confined at CCI because he was allegedly denied access to exercise, proper medical care, clothing and heating, and personal hygiene items. He asserted further claims under the First Amendment (right to telephone, right to free exercise of religion) and the Fourteenth Amendment (due process, equal protection). Rand twice asked the district court to appoint counsel for him, but both requests were denied. Defendants moved for summary judgment on all of Rand’s claims. Their motion contained a section entitled, “Notice of Rules Relating To Summary Judgment.” In 1993, the district court adopted certain of the recommendations of the report of the magistrate judge to whom the matter had been referred (the “1993 Order”). The court granted summary judgment for defendant James Rowland, the former Director of the California Department of Corrections, on the ground that he had been sued only in his supervisory capacity. The 1993 Order also concluded that defendants had not adequately briefed the issues relating to the merits of five of Rand’s claims until they filed their Objections to the Magistrate’s" } ]

[ { "docid": "16830691", "title": "", "text": "ORDER KIMBA M. WOOD, District Judge. Plaintiff brought this action pursuant to 42 U.S.C. § 1983, contending that defendants denied him due process in the course of his arrest. All but one defendant moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. In a Report and Recommendation dated March 22, 1999, familiarity with which is assumed, Magistrate Judge Andrew J. Peck recommended that defendants’ motion for summary judgment be granted. Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews de novo those portions of the Reports to which plaintiff objects. For the reasons stated below, the Court adopts the Report and its Recommendation. I. Discussion Plaintiff raises five specific objections to the Report, which the Court will consider in turn. First, plaintiff objects to the Report’s conclusion that the complaint be dismissed as against Officers Pekusic and Rabassa, neither of whom were named in the amended complaint. The Report noted, and plaintiff does not disagree, that these two officers were first named in plaintiffs second affidavit opposing summary judgment. (See Report at 11.) As plaintiff did not allege that Officers Pekusic or Rabassa beat him either in the amended complaint or in his deposition, the Report concluded that claims against these defendants must be dismissed. (See Report at 11-12) (quoting Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir.1997)) (“ ‘[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.’ ”) (citation omitted); Harvey v. New York City Police Dep’t, 93 Civ. 7563, 1997 WL 292112, *2 n. 2 (S.D.N.Y. June 3, 1997) (“To the extent plaintiff attempts to assert new claims in his opposition papers to defendants’ motion, ... the Court finds that ‘it is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment’ and accordingly disregards such claims.”) (citation omitted). In his Objections, plaintiff argues that the reason he failed to name Pekusic or Rabassa as among those who physically assaulted him was because he learned" }, { "docid": "338982", "title": "", "text": "PIERCE, Circuit Judge: The law is settled that a prisoner cannot base a federal civil rights action brought under 42 U.S.C. § 1983 on claims of a negligent failure of state prison officials to protect him from injury at the hands of another inmate. In this action for damages, however, the plaintiff-appellant, a state prisoner who appeared pro se before the district court, essentially claims that he was injured by a vengeful fellow inmate, due to the deliberate and callous indifference of the defendants, who are prison personnel. Defendants moved to dismiss the complaint; plaintiff moved to amend his complaint; the district court, John T. Curtin, Ch. J., allowed plaintiff to amend and, on the amended complaint, granted appellees’ motion to dismiss and denied leave to file a second amended complaint. For the reasons discussed below, we affirm in part, reverse in part, and remand. BACKGROUND In April, 1986, appellant Miguel Morales, formerly an inmate at the Collins Correctional Facility II in Helmuth, New York, commenced this action for damages, alleging that the four named defendants — the New York State Department of Corrections, State Commissioner Thomas Cough-lin, Collins Superintendent Charles James, and Corrections Officer Friedman — were responsible for an attack perpetrated against him by a fellow inmate, one Baker. Morales filed an amended complaint in December, 1986, which (1) dropped the State Department of Corrections and Commissioner Coughlin as defendants; (2) named as additional defendants prison officials Wilson, Dersham, Matos, and Rivera; and (3) incorporated by reference additional factual allegations as set forth in an accompanying affidavit signed by Morales. Morales alleged that he and Baker had previously fought on February 25, 1986, which led to a “Tier 3 hearing,” following which plaintiff and Baker were separated. The subject attack occurred on April 9, 1986, at approximately 5:45 p.m., while plaintiff was lying on a bed in the dormitory. At that time, Baker “was allowed to enter” plaintiff’s housing unit, although Baker was “without authorization to be in the dormitory;” thereupon Baker attacked plaintiff, causing him to suffer “a broken and bleeding nose, scratched eye and multiple contusions" }, { "docid": "22866098", "title": "", "text": "cell, leaving Iko face down, arms restrained behind his back, and spit mask still on. After he left the cell, Lt. Shreve offered that Iko could come to the slot to have his cuffs removed, but Iko did not respond. The officers left. Dr. Hendershot instructed the SOH staff to monitor Iko every fifteen minutes. At least one SOH staff member observed through the cell door that Iko was still breathing upon his arrival to the SOH unit. SOH staff soon became concerned, however, that Iko was not moving from his face- down position on the cell floor. After initially being denied permission by prison officials to enter the cell because of Iko’s alleged dangerousness, SOH staff finally obtained authorization to enter, finding Iko dead. A state medical examiner later concluded that Iko “died of Asphyxia (the asphyxia was caused by chemical irritation of the airways by pepper spray, facial mask placement, compressional and positional mechanisms).” J.A. 1143. B. As a result of Iko’s death, Plaintiffs sued the officers in the United States District Court for the District of Maryland pursuant to 42 U.S.C. § 1983, claiming that the officers violated Iko’s Eighth Amendment right to be free from cruel and unusual punishment. Plaintiffs also alleged a number of Maryland state constitutional and tort claims. The officers moved for summary judgment, asserting, inter alia, qualified immunity from the federal claims. The district court granted the motion in part, but denied it as to three portions of Plaintiffs’ § 1983 action: (1) the claim that Lt. Shreve used excessive force in deploying a large quantity of pepper spray (the “excessive pepper spray claim”); (2) the claim that the officers used excessive force in applying pressure to Iko in the SOH cell while waiting for the flex cuffs to arrive (the “excessive pressure claim”); and (3) the claim that the officers showed deliberate indifference to Iko’s medical needs after he was doused in pepper spray (the “medical needs claim”). The district court held that, for each of these claims, Plaintiffs had alleged facts that, if proven true, would subject the officers to" }, { "docid": "2877360", "title": "", "text": "Section 6 of the New York State Constitution are dismissed without prejudice under Fed.R.Civ.P. 12(b)(1) and 12(h)(3); 16. Plaintiffs inadequate-prison-conditions claim against Defendant Sheridan is dismissed with prejudice under Fed. R.CivJP. 56; 17. Plaintiffs harassment claim against Defendants McAdams, Emrich and Sheridan is dismissed with prejudice under Fed.R.CivJP. 56; 18 Plaintiffs inadequate-medical-care claim against Defendant Kasulke is dismissed with prejudice under Fed.R.Civ.P. 56; 19. Plaintiffs access-to-eourts claim against Defendant Cornelius is dismissed under with prejudice Fed.R.Civ.P. 56; 20. Plaintiffs access-to-courts claims against Defendants Emrich and Don are sua sponte dismissed without prejudice under Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b); and 21. Plaintiffs claims against the Defendants designated as John Doe # 1, John Doe # 2, and John Doe # 3 are dismissed without prejudice under Fed.R.Civ.P. 41(b) and Fed.R.Civ.P.4(m); and it is further ORDERED that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED except for (1) his claims against Defendants Cushman and McAdam alleging excessive force, and (2) his claim against Defendant Snyder alleging failure to protect, which shall be SET DOWN FOR TRIAL; and it is further ORDERED that Plaintiffs Cross-Motion for Summary Judgment (Dkt. No. 42) is DENIED; and it is further ORDERED that Magistrate Judge Lowe’s Order denying Plaintiffs Cross-Motion to Compel Discovery and his Cross-Motion to File an Amended Complaint (Dkt. No. 42) are AFFIRMED; and it is further ORDERED that the Clerk of the Court shall serve a copy of this Order upon all parties. REPORT-RECOMMENDATION GEORGE H. LOWE, United States Magistrate Judge. This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. §§ 1983 and 1985, has been referred to me for Report and Recommendation by the Honorable Lawrence E. Kahn, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Generally, Anthony Cusamano (“Plaintiff’), alleges that, between about January 6, 2005, and about May 13, 2005, at Gouverneur Correctional Facility (“Gouverneur C.F.”), thirteen employees of the New York State Department of Correctional Services (“DOCS”) violated his rights under the First, Eighth and Fourteenth Amendments by, inter alia, assaulting him, filing false misbehavior reports against" }, { "docid": "10887627", "title": "", "text": "GINSBURG, Circuit Judge: Plaintiff-appellant Norris, a pretrial detainee at the District of Columbia Detention Facility (“D.C. Jail” or “the Jail”), brought suit for damages and injunctive relief against four correctional officers at the Jail, the acting Director of the District’s Department of Corrections, the May- or, and the District, alleging deprivation of his constitutional rights redressable under 42 U.S.C. § 1983. Specifically, appellant alleged that on one occasion during his confinement in the D.C. Jail, appellee correctional officers, without provocation, maced, beat, and kicked him; the resulting injuries, Norris alleged, included temporary-blindness, a burning sensation in his face, immediate pain which subsided after several hours, lingering blurred vision, and a bruised and swollen left arm. Pursuant to appellees’ Fed.R.Civ.P. 56 motion, the District Court dismissed Norris’ complaint against the correctional officers on the ground that “[pjlaintiff received medical attention promptly and suffered no permanent injuries.” Because the District Court erroneously stated and applied the legal standard governing section 1983 liability for prison officer batteries, we reverse its decision granting summary judgment to appellees and remand for further proceedings. I. The events giving rise to appellant’s complaint occurred either in the late evening of January 17, 1982, or in the early morning of January 18. As Norris described the incident, appellee correctional officers were mov[ing] me from the dormitory area of [one] eellblock ... to a single cell in the same eellblock. I was following their directions and I was not resisting. As I stepped into the single cell, [one of the appellees] sprayed mace on the right side of my face. At about the same time, the officers grabbed my arms .from behind, handcuffed me, and began punching and kicking me and pushing me so that I banged into things in the cell. After this, they took me to the jail infirmary, where I was examined and treated. Plaintiff’s Response to Defendants’ Interrogatories, No. 38 (“Plaintiff’s Response No. —”). Norris recounted that the pain he suffered as an immediate result of the beating subsided “after several hours.” Plaintiff’s Response No. 18. The mace spraying, he stated, produced burning in his" }, { "docid": "14587484", "title": "", "text": "ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF No. 64] LAUREL BEELER, United States Magistrate Judge. I. INTRODUCTION In this civil rights action alleging claims under 42 U.S.C. § 1983 and state law, Plaintiff Jose Higareda Gomez, appearing pro se, asserts that officers of the Fremont Police Department used excessive force when they (A) mistook him for another person with an outstanding felony warrant, (B) restrained him by using a police dog, which bit him on the ankle, (C) shot him with a Taser gun, and (D) thereafter arrested him for resisting arrest. See Complaint, ECF No. 75 at 3-10 (claims one, five, six, seven, eight and eleven). Plaintiff also asserts that the police officers acted because of his ethnicity in violation of 42 U.S.C. § 1981 and state law. Id. at 5-6 (claims three and four). Finally, Plaintiff asserts that the City of Fremont and the Chief of Police are liable for the officers’ actions under federal and state law based on a failure to train, a policy and practice of ignoring excessive force, and the doctrine of respondeat superior. Id. at 4, 7-9. (claims two, nine, and ten). Defendants moved for summary judgment, arguing the following: (A) Plaintiffs only evidence of excessive force is his own contradictory deposition testimony, which does not establish a genuine issue of material fact for the section 1983 and related state claims; (B) there is no evidence of police action based on Plaintiffs ethnicity; and (C) there is no evidence that the City and Police Chief failed to train police officers or had a policy and practice of ignoring excessive force, which precludes liability under federal and state law. Defendants’ Summary Judgment Motion, ECF No. 64 at 1-2. Plaintiff— who had notice of the requirements for opposing the motion — did not oppose the motion in writing, which Defendants argue is a separate ground for granting summary judgment. Defendant’s Reply, ECF No. 72 at 2. The Court DENIES IN PART and GRANTS IN PART Defendants’ Motion. The Court denies summary judgment on claims one, five, six, eight," }, { "docid": "23709274", "title": "", "text": "Williams’ assertions that he asked for and was denied an opportunity to wash himself, that mace fumes were not fumigated from his cell, and that he was never permitted to use a toilet. However, the prison officials assert that Williams (and the other inmates confined in the same manner) precipitated the macing and confinement by throwing cups of unidentified foul-smelling liquids at Tomlin and another officer. The defendants further assert that in accordance with a written South Carolina Department of Corrections (SCDC) policy, the prison’s medical director authorized the use of four-point restraints, a nurse checked to determine that the restraints were applied properly, and a corrections officer monitored the restrained inmates every fifteen minutes. In his pro se complaint, after outlining the above factual allegations, Williams alleged that the defendants violated his Eighth Amendment right to be free from cruel and unusual punishment and his right under the Fourteenth Amendment not to be deprived of liberty without due process. The defendants filed an answer, denying, inter alia, that “any constitutional rights of the Plaintiff ha[d] been violated.” The defendants then moved for summary judgment, based entirely on the argument that Williams’ complaint failed to state a cause of action under the Eighth Amendment. In response to that motion, Williams filed an affidavit in which he detailed the above factual assertions under oath. The magistrate judge recommended that summary judgment be granted to defendants. First, with regard to the Eighth Amendment claim, he found Williams’ “claim of unnecessary or excessive force [was] simply not supported by any evidence in the record.” Second, the magistrate judge concluded that Williams’ allegation that the four- point restraints were imposed in violation of the SCDC policy, even if true, failed to establish a Due Process claim. The district court adopted the magistrate judge’s report and recommendation and granted summary judgment to the defendants. II. The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const, amend. VIII. It not only outlaws excessive sentences but also protects inmates from inhumane treatment and conditions while imprisoned. Determination of whether the Eighth Amendment has been" }, { "docid": "21500849", "title": "", "text": "to call home, seeking his family’s help in getting transferred out of the jail because “the other inmates were out to get him and they were going to kill him.” (J.A. at 636) While standing by the phone, Plaintiff was pulled over a nearby rail from behind by Glover and choked, punched and kicked by several inmates until unconscious. He lay battered and bloody on the jailhouse floor until another inmate came to his aid and escorted him to officers for medical attention. Following the assault, Plaintiff was transported to McPherson Hospital Emergency Room and admitted to St. Joseph’s Hospital for treatment. As a result of the assault, Plaintiff suffered a facial fracture and a fractured nose, which required corrective surgery. Following the assault, the Livingston County Sheriffs Department launched an internal criminal investigation. Several inmates were interviewed as part of the investigation. While the investigation centered on ascertaining the criminal culpability of inmates involved in the assault, Officers McGuckin and Stone were implicated due to allegations of McGuckin’s use of force as well as Stone’s role in informing the inmate population of Plaintiffs charges. No charges, however, were filed against either officer. Plaintiff later brought suit under 42 U.S.C. § 1983 against Livingston County, the Livingston County Sheriff and a number of individual officers including Stone and McGuckin. Leary v. Livingston County, No. 03-60021, 2006 WL 2865213, at *1 (E.D.Mich.2006). With respect to Officer McGuckin, Plaintiff alleged deliberate indifference and excessive use of force in violation of the Fourth, Fifth, Eighth and Fourteenth Amendments. Id. With respect to Officer Stone, Plaintiff alleged that his conduct constituted deliberate indifference in violation of the Eighth and Fourteenth Amendments. Id. All Defendants moved for summary judgment. Id. In particular, Defendants McGuckin and Stone argued that they were entitled to qualified immunity. The district court granted Officer McGuckin’s motion for summary judgment with respect to deliberate indifference but denied summary judgment with respect to Plaintiffs allegation of excessive force. Id. at *6. The district court found that there was a genuine dispute of material fact as to whether McGuckin used force maliciously and" }, { "docid": "22945405", "title": "", "text": "leave the premises, although Ivan might remain and visit his brother. Ms. Rodriguez maintains that when she arrived, Officer Epstein screamed at her, put both hands on her shoulders, propelled her toward the building entrance and threw her against the front door. Appellant Epstein denies that any physical contact occurred with Ms. Rodriguez. Ivan persuaded the officers to permit his mother to wait inside the building while he visited Raul. Two days later prison officials sent a letter to Sara Rodriguez, formally advising her that her visitation privileges had been suspended during the pendency of the criminal charges against her. When those proceedings were terminated in April 1991, her visitation privileges were restored. On July 16,1991 Raul and Sara Rodriguez brought suit pro se against numerous defendants, including besides appellants various state prison officials and corrections officers, and other state and county officers. Later, after having obtained the benefit of counsel, plaintiffs amended their complaint. In a second amended complaint, plaintiffs alleged violations of their constitutional and state law rights resulting from Sara Rodriguez’ arrest, the denial of visitation rights, the administrative detention of Raul Rodriguez, and the use of excessive force on Sara Rodriguez. Plaintiffs sought injunctive and declaratory relief as well as compensatory and punitive damages. After discovery was completed, defendants moved for summary judgment. The magistrate judge, to whom the case was referred, issued a report and recommendation recommending that the motion be granted in part and denied in part. Both sides filed objections. After considering the motion de novo, the district judge adopted, with modifications, the report and recommendation. The result, in relevant part, was that appellants’ motion for summary judgment was denied in the following respects: (1) Sara Rodriguez’ civil rights claim based on Officer Epstein’s alleged use of excessive force on January 12, 1991, (2) Raul Rodriguez’ civil rights claims that his administrative confinement was in retaliation for the exercise of his First Amendment rights, and (3) that his due process rights were violated by his being held in administrative confinement for three days without an opportunity to be heard, (4) both plaintiffs’ request" }, { "docid": "6604881", "title": "", "text": "MEMORANDUM-DECISION and ORDER DAVID N. HURD, District Judge. I. INTRODUCTION Anthony Cusamano, true name and also known as Michael Bonano (“plaintiff’), brings suit pursuant to 42 U.S.C. §§ 1981, 1983, 1984, 1985, and 1986, alleging violations of his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Six defendants were dismissed in a prior order dated June 3, 2009. (See Order, Dkt. No. 29.) The remaining defendants are George B. Alexander, Chairman of the New York State Division of Parole; Jane Doe, Parole Board Member; John Doe 1, Parole Board Member; John Doe 2, Parole Board Member; Marni Amell, Bare Hill Correctional Facility Parole Officer; Mr. Bullock, Queensboro Correctional Facility Parole Officer; Ms. Gallego, Queensboro Correctional Facility Parole Officer; Karen Moment, Acting Senior Queensboro Correctional Facility Parole Officer; Ms. Cruse, Queensboro Correctional Facility Parole Officer; Mr. Pugh, Senior Queensboro Correctional Facility Parole Officer; Mr. Turecky, Brooklyn II Parole Bureau Parole Officer; Michael Reed, Brooklyn II Parole Bureau Access Counselor; Brian Fischer, Commissioner of the New York State Department of Correctional Services; the New York State Department of Correctional Sendees (“DOCS”); and the New York State Division of Parole (“DOP”). Plaintiff seeks injunctive relief to remove various conditions of his parole and monetary damages. Defendants Alexander, Amell, Turecky, Fischer, DOCS, and DOP (hereinafter referred to collectively as “defendants”) are represented by the same counsel and move to dismiss plaintiffs complaint pursuant to Fed. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff opposes and cross-moves for summary judgment. Both motions were considered on their submissions without oral argument. II. BACKGROUND In March 2004, plaintiff was sentenced to prison for third-degree robbery and third-degree burglary. While serving his sentence in 2006, plaintiff had a parole interview with a Bare Hills Correctional Facility parole officer, defendant Marni Amell (“Amell”). Defendant Amell conducted the interview for information to use in a recommendation given to the Parole Board (“Board”). Amell asked plaintiff questions about his recent charges and. personal history, reviewed his correctional records, and recommended the Board impose a drug treatment program as a special condition of his" }, { "docid": "22686313", "title": "", "text": "CHOY, Circuit Judge: Sammy Terrell, a federal prisoner proceeding pro se and in forma pauperis, appeals from a November 30, 1989 summary judgment order dismissing his action with prejudice. Terrell alleges that the district court erred by (1) denying Terrell’s request for appointment of counsel; (2) denying his Rule 56(f) motion to stay summary judgment pending further discovery; (3) granting summary judgment in favor of defendant Morales; and (4) dismissing Terrell’s complaint with prejudice as to defendant Phillips for failure to exhaust administrative remedies. The fourth issue on appeal raises a question of first impression in this circuit. Although the district court was correct to dismiss Terrell’s complaint as to Phillips, that dismissal should have been without prejudice. We AFFIRM in part, and REVERSE and REMAND in part. FACTUAL AND PROCEDURAL BACKGROUND Terrell is a prisoner who was formerly-housed at Terminal Island Federal Correctional Institution in San Pedro, California. He alleges that on December 8, 1987, Correctional Officer Christopher C. Phillips purposely closed a food-slot door on his hand, allegedly causing profuse bleeding. Phillips claims that he closed the slot to protect himself from Terrell’s reach. According to Phillips, he was about to hand Terrell some linen when Terrell forced the slot open, cutting two of Phillip’s fingers. Terrell then allegedly waved a hard plastic sign threateningly at Phillips. Soon after the incident, Terrell showed his hand to Lieutenant Jon Morales. Morales refused to let Terrell see a doctor because Terrell’s injury was not serious. Phillips reported Terrell’s conduct as a disciplinary infraction, and Terrell served sixty days in “the hole” for allegedly assaulting a staff member. ANALYSIS Terrell contends that the defendants violated his eighth amendment guarantee against cruel and unusual punishment. Whitley v. Albers, 475 U.S. 312, 319-24, 106 S.Ct. 1078, 1084-87, 89 L.Ed.2d 251 (1986) (Phillips) (wanton and unnecessary infliction of pain on prisoner); Estelle v. Gamble, 429 U.S. 97, 104-06, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976) (Morales) (deliberate indifference to prisoner’s serious medical needs). He incorrectly asserts that he has stated a cause of action under 42 U.S.C. § 1983. In fact, he has" }, { "docid": "15075218", "title": "", "text": "report of Jackson’s transfer and his personal knowledge of the Department of Correctional Service’s transfer rules and procedures. As this fails to comply with FED. R. CIV. P. 56(e), the defendants are not entitled to summary judgment on the ground that they lacked personal involvement in the transfers. Remaining Claims Jackson’s pro se papers, read liberally, allege also that the defendants infringed upon his Eighth Amendment rights. Jackson’s wife, plaintiff Ruby Jackson, claims that her rights have been violated by the transfer of her husband to a prison much further from her home. Both of these claims fail for the reasons articulated by the Magistrate Judge in his report and recommendation. Conclusion Defendants’ motion for summary judgment dismissing the complaint is granted (a) in its entirety with respect to plaintiff Ruby Jackson and (b) with respect to plaintiff Joe Jackson insofar as he complains of (i) an allegedly retaliatory misbehavior report, (ii) violations of the Eighth Amendment, and (in) the alleged use of “tainted” evidence against him in the Tier III hearing. It is denied in all other respects. Thus, what remains of the case is Jackson’s claim that he was deprived of assistance in the Tier III hearing and subjected to retaliatory transfers. SO ORDERED. REPORT AND RECOMMENDATION PECK, United States Magistrate Judge. In this 42 U.S.C. § 1983 action, pro se plaintiff Joe Jackson (“Jackson”) has sued a Corrections Officer at Fishkill Correctional Facility and the Commissioner of Correctional Services for retaliation and alleged violations of due process and cruel and unusual punishment under the Eighth Amendment, in connection with a Tier III disciplinary hearing that resulted in his confinement for 99 days in keeplock at Fishkill, and his subsequent transfer from Fishkill to Auburn Correctional Facility. Plaintiff Ruby Jackson, Joe Jackson’s wife, also alleges psychological and economic problems as a result of her husband’s transfer to a more remote prison. This case has generated three prior judicial opinions, familiarity with which is assumed. See Jackson v. Johnson, 985 F.Supp. 422 (S.D.N.Y.1997) (denying defendants’ motion to stay the action because of a then-pending criminal action against Jackson and" }, { "docid": "21394709", "title": "", "text": "Opinion & Order EDELSTEIN, District Judge. In April 1990, plaintiff Carlos Cespedes (“Cespedes” or “plaintiff’), an inmate at the Ossining Correctional Facility (“Sing Sing”), in Ossining, New York, brought this action against the above-named defendants, alleging that, while incarcerated at Sing Sing, he was placed into segregated housing without due process in violation of Title 42, United States Code, Section 1983 (“Section 1983”), as well as several unspecified state law claims. Presently before this Court are plaintiffs objections to the recommendations of Magistrate Judge Sharon E. Grubin (“Magistrate Judge Grubin”) regarding several pretrial motions. (Report and Recommendations to the Honorable David N. Edelstein, Cespedes v. Coughlin, 90 Civ. 2667 (the “Report”) (July 21, 1995).) Defendants did not respond to plaintiffs objections. Plaintiffs objections concern Magistrate Judge Grubin’s proposed disposition of a motion for summary judgment brought by defendants Thomas A. Coughlin (“Coughlin”), John P. Keane (“Keane”), Charles Greiner (“Greiner”), J. Roman (“Roman”) and F. Or-engo (“Orengo”), as well as plaintiffs cross-motion for partial summary judgment against defendant M. Stokes (“Stokes”) and plaintiffs motion to amend his pro se complaint to one drafted by plaintiffs counsel. For the following reasons, this Court: (1) grants summary judgment to defendants Keane and Orengo; (2) dismisses sua sponte plaintiffs claims against non-moving defendants Stokes and Luis Alvelo (“Alvelo”) pursuant to Title 28, United States Code, Section 1915(d); (3) denies plaintiffs motion for partial summary judgment; and (4) grants plaintiffs motion to amend his Complaint. BACKGROUND This Court will first review the events giving rise to this- litigation, then describe the findings and recommendations contained in Magistrate Judge Grubin’s Report. I. Facts The events giving rise to the instant litigation occurred on February 18, 1989, in Sing Sing housing block A (“block A”) (Memorandum of Law in Support of Plaintiffs Motion to Amend the Complaint and for Partial Summary Judgment and in Opposition to Defendants’ Motion for Partial Summary Judgment, Cespedes v. Coughlin, 90 Civ. 2667 (“Pltf. Memo”) at 3 (Oct. 27, 1992).) At that time, Cespedes was incarcerated in block A. (Memorandum of Law in Opposition to Plaintiffs Motion for a Preliminary Injunction, Cespedes" }, { "docid": "2136093", "title": "", "text": "ORDER EDWARD C. REED, Jr., Chief Judge. This case was initiated pro se by James F. Taylor, a prisoner at the Nevada State Prison (“NSP”), on February 26, 1986. On June 12, 1986, it was consolidated with the substantially identical case of Taylor v. Whitley, CV-R-86-289-ECR (docket #4). Since then, plaintiff has amended his complaint twice, on July 8, 1986, and on January 27, 1987 (docket #8 and #21). On February 27, 1987, plaintiff filed a motion for partial summary judgment (docket #23). Defendants opposed that motion and made a cross-motion for summary judgment on April 15, 1987 (docket # 25). Plaintiff replied and opposed the cross-motion on April 21, 1987 (docket #26). The United States Magistrate issued a report and recommendation (docket # 29, filed January 19, 1988) recommending partial summary judgment in favor of plaintiff. Defendants did not object to the report and recommendation. The plaintiffs second amended complaint includes five counts. Four of the counts allege violations of plaintiffs right to due process of law in conjunction with his placement in disciplinary detention on four different occasions. The fifth count is based on alleged inadequate medical care. The four due process claims are the subject of the motions for summary judgment now before the Court. The plaintiffs due process claims are against defendants Harold L. Whitley, Steve Koon, Michael Budge, Philip John-stone, Kenneth Webb, and Miles Long. It appears, however, that a summary judgment in favor of plaintiff would not reach defendant Webb as he has not been properly served. • Defendant Whitley was warden of NSP when the events underlying this case occurred. He admits to approving the procedure whereby plaintiff was placed in disciplinary detention. Defendant Whitley’s Response to Request for Admissions, Exhibit A to plaintiff’s Motion for Partial Summary Judgment (docket # 23), page 5, lines 24-28, and page 6, lines 1-3. Defendant Koon was the associate warden. Defendants Budge, Johnstone, and Long were correctional officers; they were involved in the movement of plaintiff to disciplinary detention. The facts are simple and undisputed. On February 8, 1986, a correctional officer ordered plaintiff to move" }, { "docid": "2586171", "title": "", "text": "ORDER ADOPTING REPORT AND RECOMMENDATION YOUNG, Chief Judge. After careful review of.the objections thereto, this Report and Recommendation is adopted in its entirety. The motion for summary .judgment is allowed in part and denied in part accordingly. REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (# 53) COLLINGS, United States Magistrate Judge. J. INTRODUCTION This matter is before the Court on the Defendants’ Motion for Summary Judgment (# 53). The Plaintiff, Justin Orwat (“Orwat”), was, at all relevant times, an inmate at MCI-Cedar Junction (“Cedar Junction”), a state correctional facility in Walpole, Massachusetts. Orwat brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of the First, Eighth and Fourteenth Amendments, and various state laws, against officials of the Department of Correction for the Commonwealth of Massachusetts, various correctional officers at Cedar Junction, and the Department of Correction itself. The complaint stems from an incident in which a correctional officer, defendant Jeffrey Padula, struck Orwat in the face during a strip search of Orwat and an inspection of Orwat’s cell. Orwat was treated for a fractured jaw following the incident. (Memorandum of Law in Support of Defendants’ Motion for Summary Judgment, # 54, Statement of Undisputed Facts, at 4 ¶ 9). Previously, the Defendants in this action filed a motion to dismiss (# 11) and, following a hearing (January 6, 2003) on the matter, this Court recommended that Counts 4 (Violation of 18 U.S.C. § 1964(c)) and 10 (Negligence-Massachusetts Tort Claim Act) be dismissed as unopposed by the Plaintiff. (Report and Recommendation on Defendants’ Motion to Dismiss, # 26). This Court, in its Amended Report and Recommendation (# 31) otherwise recommended that Defendants’ Motion to Dismiss all other claims be denied without prejudice to Defendants filing a motion for summary judgment. The District Court adopted these recommendations, and further dismissed any claims for damages against the Defendants in their official capacities absent a waiver of the Commonwealth’s sovereign immunity. (Order, # 36). See Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 3107, 87 L.Ed.2d 114 (1985) (Eleventh Amendment bars suit for money damages against" }, { "docid": "4078592", "title": "", "text": "7, 1997 Report and Recommendation are adopted in all respects. ALL OF THE ABOVE IS SO ORDERED. REPORT AND RECOMMENDATION HECKMAN, United States Magistrate Judge. This case has been referred to the undersigned by Hon. Michael A. Telesca, pursuant to 28 U.S.C. § 636(b)(1), for pretrial matters and to hear and report on dispositive motions. Defendants have filed a motion for summary judgment (Item 21) pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, it is recommended that defendants’ motion be granted. BACKGROUND On October 18, 1995, plaintiff filed this action seeking declaratory relief and monetary damages pursuant to 42 U.S.C. § 1983. He claims that on September 1, 1995, while he was incarcerated at the Southport Correctional Facility maintained by the New York State Department of Correctional Services (“DOCS”), Correction Officers Moss, Brewer and Knapp and Correction Sergeant Rich subjected plaintiff to “malicious and sadistic use of force as a means of retaliation for filing complaints with government officials and for signing an affidavit of another prisoner in support of his petition to the Courts” (Item 1, ¶ 18). He claims that Lieutenant Ryan and Captain Reynolds witnessed the conduct of the other defendants and took no action to prevent (id., ¶ 13). The following facts are not in dispute. On September 1, 1995, at approximately 1: 15 p.m., plaintiff was being escorted by Moss, Brewer and Knapp to a Tier III disciplinary hearing when plaintiff requested to be returned to his cell. Plaintiff was in leg iron and handcuff restraints. Upon arrival at plaintiffs cell, Moss removed plaintiffs right leg iron. Plaintiff refused to comply with Moss’s order to step back so that the left leg iron could be removed. Moss then lifted plaintiffs leg to remove the left leg iron. Plaintiff turned and spit in Moss’s face. Plaintiffs cell door was then secured. Plain tiff refused to allow the officers to remove his handcuffs (Item 24, §§ 1-6). Moss filed an inmate misbehavior report about this incident, charging plaintiff with various disciplinary rule violations (see Item 23, Ex. A). The" }, { "docid": "4078591", "title": "", "text": "DECISION and ORDER TELESCA, District Judge. Plaintiff, Adren Lopez, formerly a prisoner in the Southport Correctional Facility, filed this action pro se seeking relief under 42 U.S.C. § 1983, claiming that his constitutional rights were violated by the defendants’ alleged excessive use of force. Defendants moved for summary judgment, arguing that plaintiff had failed to state a claim for any constitutional deprivation and that the defendants were entitled to qualified immunity. This case was referred to Magistrate Judge Carol E. Heckman for pretrial matters and to hear and report on dispositive motions pursuant to 28 U.S.C. § 636(b)(1). On October 7, 1997, Magistrate Judge Heckman issued a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), in which she recommended that the defendants’ motion for summary judgment be granted and that the case be dismissed. No objections have been filed to Magistrate Heckman’s Report and Recommendation. Having reviewed the Report and Recommendation, I find it to be in accord with the record before me and the law. WHEREFORE, the findings in Magistrate Judge Heckman’s October 7, 1997 Report and Recommendation are adopted in all respects. ALL OF THE ABOVE IS SO ORDERED. REPORT AND RECOMMENDATION HECKMAN, United States Magistrate Judge. This case has been referred to the undersigned by Hon. Michael A. Telesca, pursuant to 28 U.S.C. § 636(b)(1), for pretrial matters and to hear and report on dispositive motions. Defendants have filed a motion for summary judgment (Item 21) pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, it is recommended that defendants’ motion be granted. BACKGROUND On October 18, 1995, plaintiff filed this action seeking declaratory relief and monetary damages pursuant to 42 U.S.C. § 1983. He claims that on September 1, 1995, while he was incarcerated at the Southport Correctional Facility maintained by the New York State Department of Correctional Services (“DOCS”), Correction Officers Moss, Brewer and Knapp and Correction Sergeant Rich subjected plaintiff to “malicious and sadistic use of force as a means of retaliation for filing complaints with government officials and for signing an affidavit of another prisoner" }, { "docid": "752808", "title": "", "text": "apparently requests would not assist him in meeting his burden under Fed. R.Civ.P. 56 because those documents at most would reflect on credibility of certain defendants. See Dkt. 47. Accordingly, the court should not refuse the application for judgment or order a continuance. (3) Defendants’ motion for summary-judgment (Dkt. 24 and 31) is GRANTED. (4) Plaintiffs complaint and all remaining motions currently pending before the Court hereby are DISMISSED. (5) The Clerk is directed to send copies of this Order to plaintiff, defendants’ counsel and Magistrate Judge Karen L. Strom-bom. REPORT AND RECOMMENDATION STROMBOM, United States Magistrate Judge. This matter has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates’ Rules MJR 1, MJR 3, and MJR 4. This matter comes before the undersigned on defendants’ converted motion for summary judgment. (Dkt. # 24 and # 31). Having reviewed defendants’ motion, plaintiffs responses and defendants’ replies thereto, and the remaining record, the undersigned submits the following report and recommendation for the Honorable Robert J. Bryan’s review. FACTUAL AND PROCEDURAL BACKGROUND This case involves a civil rights complaint brought by plaintiff against defendants — all of whom were deputies with the Pierce County Sheriffs Office during the relevant time period — pursuant to 42 U.S.C. § 1983. Specifically, in his amended complaint, plaintiff alleges that his constitutional rights were violated when: (1) defendants Mark C. Berry and Kris-tain Nordstrom unlawfully conducted a traffic stop of his vehicle on the basis of an expired registration; (2) defendants Berry and Nordstrom unlawfully engaged in a vehicle pursuit through a City of Tacoma residential neighborhood while he attempted to elude them; (3) defendants Berry and Nordstrom used unnecessary force when they performed a precision intervention technique (“PIT”) maneuver on his vehicle, and then hit his vehicle twice while it was stopped in a private driveway; (4) defendant Berry used excessive force by hitting him on the back of his head with a flashlight; and (5) defendants Berry, Nordstrom and Hardesty intentionally inflicted a substantial amount of pain on him by forcing him to walk" }, { "docid": "9531636", "title": "", "text": "TUTTLE, Senior Circuit Judge: John A. Washington, an inmate in the Florida prison system, appeals from an or der of the district court granting summary judgment for all defendants in this Civil Rights action brought pursuant to 42 U.S. C. § 1983. In his complaint, Washington alleged that he had suffered pain and permanent injury from the defendants’ “deliberate indifference to Washington’s serious medical needs” while at the Lawtey Correctional Institute in the State of Florida. I. COURSE OF PROCEEDINGS BELOW Plaintiff filed his complaint, acting pro se, alleging that he was suffering from Agent Orange disease. He alleged inadequate medical care by the prison officials, the appellees herein. He filed concurrently a motion for a temporary restraining order and preliminary injunction. On November 28, 1986, the district court denied plaintiff’s motion for a temporary restraining order and referred the motion for preliminary injunction to the United States magistrate for an evidentiary hearing. At the conclusion of the hearing, the magistrate offered the plaintiff an opportunity to supplement the record with any additional evidence he might have concerning the correction officials’ wrongful refusal to allow him to remain at the Veterans Administration Hospital for treatment of Agent Orange disease. On January 6,1987, the defendant filed a motion for summary judgment. On February 27, 1987, the magistrate filed his report to the district court recommending that the plaintiff’s motion for preliminary injunction be denied and that defendants’ motion for summary judgment be granted. On May 8, the district court overruled the plaintiff’s objections to the magistrate’s report and recommendation. It adopted the magistrate’s recommendation denying the plaintiff’s motion for preliminary injunction and granted defendants’ motion for summary judgment. This appeal followed. II. STATEMENT OF FACTS The record before the trial court that was appropriate for it to consider deciding the motion for summary judgment, i.e., the affidavits, the testimony at the hearing for preliminary injunction, and the sworn complaint of the plaintiff, showed the following: Washington is a veteran of the Viet Nam conflict who was found by the Veterans Administration to be suffering from disabilities which the Administration found were" }, { "docid": "2877361", "title": "", "text": "TRIAL; and it is further ORDERED that Plaintiffs Cross-Motion for Summary Judgment (Dkt. No. 42) is DENIED; and it is further ORDERED that Magistrate Judge Lowe’s Order denying Plaintiffs Cross-Motion to Compel Discovery and his Cross-Motion to File an Amended Complaint (Dkt. No. 42) are AFFIRMED; and it is further ORDERED that the Clerk of the Court shall serve a copy of this Order upon all parties. REPORT-RECOMMENDATION GEORGE H. LOWE, United States Magistrate Judge. This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. §§ 1983 and 1985, has been referred to me for Report and Recommendation by the Honorable Lawrence E. Kahn, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Generally, Anthony Cusamano (“Plaintiff’), alleges that, between about January 6, 2005, and about May 13, 2005, at Gouverneur Correctional Facility (“Gouverneur C.F.”), thirteen employees of the New York State Department of Correctional Services (“DOCS”) violated his rights under the First, Eighth and Fourteenth Amendments by, inter alia, assaulting him, filing false misbehavior reports against him, denying him due process of law at his disciplinary hearings, subjecting him to cruel-and-unusual prison conditions while in disciplinary confinement, harassing him, being deliberately indifferent to his serious medical needs, and denying him access to the courts. (See generally Dkt. No. 1 [Plf.’s Compl.].) Currently pending before the Court is Defendants’ motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 39.) Also pending are three cross-motions filed by Plaintiff: (1) a cross-motion for summary judgment; (2) a cross-motion for an Order to compel discovery (and, implicitly, an Order staying the Court’s decision regarding Defendants’ motion for summary judgment pending Plaintiffs receipt of that discovery); and (3) a cross-motion for leave to amend his Complaint. (Dkt. No. 42.) For the reasons that follow, I recommend that Defendants’ motion be granted in part and denied in part; and I recommend that Plaintiffs three cross-motions be denied. TABLE OF CONTENTS I. BACKGROUND...........................................................445 A. Summary of Plaintiffs Complaint......................................445 B. Summary of Defendants’ Motion.......................................450 C. Summary of Plaintiffs Cross-Motions..................................451 II. APPLICABLE LEGAL STANDARDS.......................................451 A. Legal Standard Governing Motions" } ]

[ { "docid": "8090272", "title": "", "text": "National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027; White v. N.L.R.B., 5 Cir., 1958, 255 F.2d 564; N.L.R.B. v. Taormina, 5 Cir., 1957, 244 F.2d 197. We do not think that the Supreme Court held, or intended to hold, in Lincoln Mills, that a no-strike clause and an arbitration clause were so much one that a persistent demand for the one without acquiescing in the other is a refusal to bargain in good faith. Contracts containing covenants against strikes are not unknown in the field of labor-management relations. N.L.R.B. v. Norfolk Shipbuilding & Drydock Corporation, 4 Cir., 1952, 195 F.2d 632; Scullin Steel Company, 65 N.L.R.B. 1294. The same contention was made in White v. N.L.R.B., 5 Cir., 1958, 255 F.2d 564, as the Board urges here. In the White ease a finding could have been made that the employer insisted upon a contract by which the employees would surrender their right to strike, and giving to manage- • ment the right to hire, fire and fix wages without a binding arbitration clause. This insistence, it was held, was not a failure to bargain in good faith. The Sixth Circuit, in a like case, reached a like result. N.L.R.B. v. United Clay Mines Corporation, 6 Cir., 1955, 219 F.2d 120. * * * If the respondent had, and we say it did have, the legal right to insist upon the terms of its proposal, we think it cannot be said that the exercise of the right is evidence of bad faith. * * * (Emphasis added) 279 F.2d at 759-760. In view of the principles stated above, we are unable to agree with the Board’s contention that the Company’s position with regard to the management rights, no-strike, no-arbitration clauses warrants a finding of bad faith. Nor can we agree with the Board’s argument that the Company’s rejection of the Union’s proffered concessions and proposals evidences a refusal to bargain in good faith. The Act does not require an employer to abandon a position because of either the quantity or quality of concessions offered by the Union" } ]

[ { "docid": "8773280", "title": "", "text": "the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party . 29 U.S.C. § 158(d) (emphasis added). A party violates the duty to bargain collectively if it insists, as a precondition to reaching an agreement, on inclusion of a provision concerning a nonmandatory subject for bargaining, that is, a subject other than the mandatory issues of wages, hours, and other terms and conditions of employment. NLRB v. Borg-Warner Corp., 356 U.S. 342, 348-49, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958). Neither industry fund nor interest arbitration provisions are mandatory subjects for bargaining. An issue is mandatory only if it settles an aspect of the relationship between the employer and the employees. Further, it must have more than a speculative and insubstantial impact on that relationship. Chemical Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178-82, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971). The Local acknowledges that the purpose of the funds is to increase the prosperity of the sheet metal industry as a whole. Accordingly, the industry fund provisions concern the relationship between the employer and the public, not between the employer and its employees. The Local contends that the funds affect the terms and conditions of employment by increasing the number of jobs available to sheet metal workers. However, this impact on the terms and conditions of employment is too insubstantial. The argument proves too much, for it applies to every management decision with an effect on the prosperity of the business. We agree with the other courts which have held that contributions to industry promotion funds are not a mandatory subject for bargaining, see NLRB v. Local 264, Laborers, 529 F.2d 778, 786 (8th Cir. 1976); NLRB v. Floor Decorators Local 2265, 317 F.2d 269 (6th Cir. 1963). The impact of" }, { "docid": "8716000", "title": "", "text": "what it cannot obtain through bargaining.” 397 U.S. at 109, 90 S.Ct. at 826. Without substantial evidence that a negotiating party’s attitude is inconsistent with its duty to seek an agreement, the mere fact that it adamantly insists on a bargaining position or has not budged from its position on most issues cannot suffice to render it guilty of a refusal to bargain in good faith. NLRB v. MacMillan Ring-Free Oil Co., 394 F.2d 26 (9th Cir.), cert, denied, 393 U.S. 914, 89 S.Ct. 237, 21 L.Ed.2d 199 (1968); NLRB v. Almeida Bus Lines, Inc., 333 F.2d 729 (1st Cir. 1964). “ ‘If the insistence is genuinely and sincerely held, if it is not mere window dressing, it may be maintained forever though it produce a stalemate. Deep conviction, firmly held and from which no withdrawal will be made, may be more than the traditional opening gambit of a labor controversy. It may be both the right of the citizen and essential to our economic legal system * * * of free collective bargaining.’ (Citation omitted.)” NLRB v. Almeida Bus Lines, Inc., supra, at 731. In the present case, by the time the proposals for both parties were on the table, it was clear that each side was insisting upon its own bargaining position. Yet agreements and concessions were made. In looking at the negotiations themselves we find that the Company changed its position on such provisions as conditions for receiving holidays, overtime, vacations and funeral leave. The parties agreed on, among other things, the amount of shift differentials and conditions governing shift differentials and provisions and pay for employees called or scheduled to work when there was insufficient work. We cannot characterize the agreements made and the Company’s changes as minor or unimportant as the Board has done. Rather, in a situation where both parties are insistent on their positions as they had the right to be, we find their agreements are strong evidence of good faith. We note the statement attributed, without contradiction, to the Union’s representative that he “supposed that both parties had negotiated to the point" }, { "docid": "17098402", "title": "", "text": "these people. 15 * * I am going to get recertified.” The company response was that it had nothing to lose by an election and would cooperate and assist the union in getting an election, that either the company or union could request it. . These were the increases called for l>y the National Agreement. . The Board emphasizes the addition of a stiffer “management rights” clause, which it views as one to which “no self respecting union could agree.” leading to the inference that it was brought forward to avoid reaching agreement. See NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131 (1st Cir.) cert. denied, 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391 (1953) and Vanderbilt Products, Inc. v. NLRB, 297 F.2d 833 (2d Cir. 1961). The Ninth Circuit has pointed out that, arguendo, a party’s proposal may be so extreme or bizarre as to give rise to an inference of bad faith but that such a principle, if accepted at all, must be narrowly restricted, otherwise it impermissibly undermines the policy of § 8(d) of the Act. NLRB v. MacMillan Ring-Free Oil Co., 394 F.2d 26 (9th Cir. 1968). In the instant case the company’s stronger proposal was countered by the union’s presentation at the next meeting of a management rights proposal taken from the National Master Freight agreement. . Company negotiators were the same throughout. During the same period that the instant negotiations were going on the company negotiator, Currie, and company president McKenzie successfully negotiated a contract with a different Teamsters local in Tampa, Florida, covering a unit in another trucking company of which McKenzie also was president. . Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). . There has not been raised the possibility that a striker who unconditionally applied for reinstatement and whose position was filled by a permanent replacement may be entitled to reinstatement upon the departure of the replacement. See NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); Laidlaw Corp. v. NLRB, 414 F.2d 99" }, { "docid": "7277591", "title": "", "text": "an unwillingness to agree with the union. It will rarely be justified by any reason of substance. Katz, 369 U.S. at 747, 82 S.Ct. 1107. Such unilateral action will also often send the message to the employees that their union is ineffectual, impotent, and unable to effectively represent them. Preserving the status quo, therefore, is only one reason for the prohibition on unilateral employer action regarding conditions of employment and the Board correctly determined that Hardesty’s unilateral actions violated § 8(a)(5). III. Surface Bargaining — Hardesty’s Bargaining Behavior and § 8(a)(1) Violations The nub of this case is the Board’s finding that Hardesty refused to bargain collectively with the Union in violation of § 8(a)(5) by engaging in a course of conduct that amounted to surface bargaining. As noted, § 8(a)(5) makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5). Section 8(d) of the Act further defines the duty to bargain collectively and it requires that the parties “meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder.” 29 U.S.C. § 158(d). The Act specifically notes that the “obligation [to bargain in good faith] does not compel either party to agree to a proposal or require the making of a concession.” Id. However, where an employer “conduces] negotiations ‘as a kind of charade or sham, all the while intending to avoid reaching an agreement ...’” that employer violates § 8(a)(5) by engaging in surface bargaining. Radisson Plaza, 987 F.2d at 1381 (quoting Continental Ins. Co. v. NLRB, 495 F.2d 44, 48 (2d Cir.1974)). When determining whether an employer failed to bargain in good faith, we examine “the employer’s conduct in the totality of the circumstances in which the bargaining took place.” Id. (citing NLRB v. Billion Motors, Inc., 700 F.2d 454, 456 (8th Cir.1983)). Importantly, we have observed that because away-from-the-table conduct may shed light on the employer’s course of conduct, “[t]he Board" }, { "docid": "2192422", "title": "", "text": "J. Heinz Co. v. NLRB, 1941, 311 U.S. 514 [61 S.Ct. 320]. Nonetheless, it is not mandatory that the contract be written. Rabouin v. NLRB, 2 Cir. 1952, 195 F.2d 906, 910. These principles are succinctly stated in 29 U.S.C.A. 158(d) as follows: “(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions . of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession * * *.” Clinton did not object to that part of the limitation imposed by the letter of authorization which stated that “ * * * the undersigned reserves the right, individually, in his sole discretion, to terminate this authorization during the course of these proposed bargaining negotiations and prior to execution of the proposed contract. “Further, this authorization authorizes these said negotiations only in behalf of the undersigned’s union, individually and independently; and the proposed subcontracting negotiations in behalf of the undersigned’s union, shall remain subject solely to the undersigned’s individual approval and to no other.” What Clinton did object to was limiting the discussion to the subcontracting and “dummy corporation” contract provisions. We think that much appears from Clinton’s own testimony: “Q. Mr. Clinton, what actually was said with respect to the authority of these two representatives? “A. Well, when I raised the question of the authority and capacity to enter into a negotiation of a complete agreement on behalf of these twelve Local Unions, it was at that point that Mr. Carter and Mr. Caudelle said, at that time, that their authority during that meeting was limited to a discussion of the so-called sub-contractor clause, and of the so-called ‘dummy corporation’ clause; that those were the only two" }, { "docid": "920240", "title": "", "text": "278, 76 S.Ct. 349, 100 L.Ed. 309 (1956); NLRB v. Ramona’s Mexican Food Products, Inc., 531 F.2d 390, 395 (9th Cir. 1975). Finally, the Board’s finding that the Company’s April 20 letter and May 26 telegram to its employees constituted threats violative of § 8(a)(1) of the Act must be sustained. Both communications informed the employees that if they struck or continued their strike they would be permanently replaced. The Company’s statement of its rights was grossly inaccurate with respect to unfair-labor-practice strikes. Since the strike was an unfair-labor-practice strike and since the striking employees considered it such, the communications were a significant misrepresentation and constituted an unfair labor practice. IV. THE COMPANY’S DEFENSES The Company attacks the NLRB’s decision on several fronts. First, it adopts the reasoning of the dissenting Board member and focuses on the economic justification for its refusal to compromise on union security or hiring procedures. It argues that the Board’s decision in effect forces it to make concessions on substantive contract terms, thus violating the dictates of H.K. Porter Co. v. NLRB, 397 U.S. 99, 106, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970). In H.K. Porter the Supreme Court did not question the validity of the Board’s finding that the employer had not bargained in good faith. It ruled only on the propriety of the NLRB’s order, which required the company to concede on the specific issue of dues check-off. 397 U.S. at 109, 90 S.Ct. 821. (Harlan J. concurring). Since the Board’s order in this case did not require any specific concessions and since the Company is challenging the finding rather than the order, H.K. Porter is, strictly speaking, inapposite. However, a corollary principle has evolved from that case which prohibits a finding of bad faith bargaining based on “the mere fact that * * [a party] adamantly insists on a bargaining position or has not budged from its position on most issues”. Wal-Lite Division of United States Gypsum Co. v. NLRB, 484 F.2d 108, 111 (8th Cir. 1973); NLRB v. MacMillan Ring-Free Oil Co., 394 F.2d 26, 29 (9th Cir.), cert. denied, 393" }, { "docid": "5627333", "title": "", "text": "performance of the mutual obligation of the parties to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or with respect to the negotiation of an agreement, or with respect to any question arising thereunder; and the execution of a written contract incorporating any agreement reached if desired by either party This mutual obligation was not to compel either party to agree to a proposal or require the making of any concession. Hence, the Senate amendment, while it did not prescribe a purely objective test of what constituted collective bargaining, as did the House bill, had to a very substantial extent the same effect as did the House bill in this regard, since it rejected, as a factor in determining good faith, the test of making a concession and thus prevented the Board from determining the merits of the positions of the parties. (Emphasis added). 1 Legislative History of the Labor Management Relations Act, 1947, 538 (1948). We do not find in this legislative history of section 8(d) any indication of a congressional intent that a party to the collective bargaining process must believe in collective bargaining as an economic, social, political or religious philosophy. It is enough if he recognizes it as a legal requirement and complies with that requirement. We believe we are borne out in this conclusion by the many Board and judicial interpretations of section 8(d) since 1947. For example, it has been said that good faith contemplates a willingness to enter the discussions “with an open mind and purpose to reach an agreement consistent with the respective rights of the parties.” Majure v. N.L. R. B., 198 F.2d 735, 739 (5th Cir. 1952). The intent of the parties must be determined, N.L.R.B. v. Call, Burnup & Sims, Inc., 393 F.2d 412, 414 (1st Cir. 1968), and this can only be done by examining their acts, words and motives. Radiator Specialty Co. v. N.L.R.B., 336 F.2d 495, 498 (4th Cir. 1964). Thus it will not do to merely enter “upon a sterile discussion of" }, { "docid": "22369788", "title": "", "text": "Congress writes into the law guides for the Board to follow, the Board may attempt to carry this process still further and seek to control more and more the terms of collective-bargaining agreements.” Accordingly Congress amended the provisions defining unfair labor practices and said in § 8 (d) that: “For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.” In discussing the effect of that amendment, this Court said it is “clear that the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements.” NLRB v. American Ins. Co., 343 U. S. 395, 404 (1952). Later this Court affirmed that view stating that “it remains clear that § 8 (d) was an attempt by Congress to prevent the Board from controlling the settling of the terms of collective bargaining agreements.” NLRB v. Insurance Agents, 361 U. S. 477, 487 (1960). The parties to the instant case are agreed that this is the first time in the 35-year history of the Act that the Board has ordered either an employer or a union to agree to a substantive term of a collective-bargaining agreement. Recognizing the fundamental principle “that the National Labor Relations Act is grounded on the premise of freedom of contract,” 128 U. S. App. D. C., at 349, 389 F. 2d, at 300, the Court of Appeals in this case concluded that nevertheless in the circumstances presented here the Board could properly compel the employer to agree to a proposed checkoff clause. The Board had found that the refusal was based on a" }, { "docid": "920241", "title": "", "text": "v. NLRB, 397 U.S. 99, 106, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970). In H.K. Porter the Supreme Court did not question the validity of the Board’s finding that the employer had not bargained in good faith. It ruled only on the propriety of the NLRB’s order, which required the company to concede on the specific issue of dues check-off. 397 U.S. at 109, 90 S.Ct. 821. (Harlan J. concurring). Since the Board’s order in this case did not require any specific concessions and since the Company is challenging the finding rather than the order, H.K. Porter is, strictly speaking, inapposite. However, a corollary principle has evolved from that case which prohibits a finding of bad faith bargaining based on “the mere fact that * * [a party] adamantly insists on a bargaining position or has not budged from its position on most issues”. Wal-Lite Division of United States Gypsum Co. v. NLRB, 484 F.2d 108, 111 (8th Cir. 1973); NLRB v. MacMillan Ring-Free Oil Co., 394 F.2d 26, 29 (9th Cir.), cert. denied, 393 U.S. 914, 89 S.Ct. 237, 21 L.Ed.2d 199 (1968). It is this principle the Company invokes here. The Company’s attack misses its mark. A precondition to application of the Wal-Lite principle is the lack of other “substantial evidence that a negotiating party’s attitude is inconsistent with its duty to seek an agreement”. Wal-Lite, 484 F.2d at 111. While the Company concentrates on the Board’s rejection of its economic justification, it ignores all the other evidence of its bad faith in the negotiating process. This evidence is substantial. The Company’s uncompromising attitude was found to be another manifestation of its refusal to bargain in good faith. The other evidence of its refusal to bargain renders H.K. Porter and its progeny inapplicable. The Company next contends that the Board’s order is unenforceable because the Company was denied due process on two occasions during the hearing. The first of these alleged denials was the rejection of certain evidence which the Company claimed would justify its agreeing to union-security and hiring-hall provisions in its earlier contract with the Culinary" }, { "docid": "113437", "title": "", "text": "approach to bargaining. The May stance was at a time when TWA was poised to obtain profitable summer traffic and could ill afford an interruption in service. By December, TWA’s financial situation had darkened, supporting more drastic demands. Icahn’s cash offer for minority stock was sharply reduced at about the same time. Exh. LLLL, p. 3. Also very significantly, TWA had made peace with ALPA and the IAM (showing that the Icahn-controlled airline was by no means hostile to reaching agreements with unions), leaving IFFA in a poor bargaining position. It had become the only union that might be called on for further sacrifice. TWA believed, accurately, that IFFA alone could not ground the airline. Changed conditions justify a hardening of bargaining posture. Soule Glass and Glazing Co. v. NLRB, supra, 652 F.2d at 1103-4; Omaha Typographical Union v. NLRB, 545 F.2d 1138, 1143 (8th Cir.1976). Cf. Rockingham Machine-Lunex Co., 255 N.L.R.B. 89, 107, affirmed, 665 F.2d 303, 305 (8th Cir.1981), cert. denied, 457 U.S. 1107, 102 S.Ct. 2907, 73 L.Ed.2d 1316 (1982), where retraction of prior agreements was inexplicable, unless the company had given inadequate authority to its bargaining agent or the company was merely seeking to waste time. Both sides on occasion engaged in posturing and immediate rejection of contentions by the other side, without discussion. The record of negotiations does not reflect well on the quality of negotiations. Both sides should have attempted to “reason together” more than they did. It is well settled, however, that movement toward the. position of the other side is not a requirement of good faith bargaining. NLRB v. American National Ins. Co., 343 U.S. 395, 404, 72 S.Ct. 824, 96 L.Ed. 1027 (1952); Wal-Lite Div. of U.S. Gypsum Co. v. NLRB, 484 F.2d 108, 111 (8th Cir.1973). If the rule were otherwise, insincerity would be mandated by law, forcing parties to take positions and make first-offer assertions they do not really mean. While this may be common practice, by lawyers in litigation and otherwise, it is not the only permissible technique in collective bargaining. Mere insistence on demands that seem extremely" }, { "docid": "1945582", "title": "", "text": "v. Billington, 402 F.2d 510, 512 n.2 (9th Cir. 1968); F. W. Means & Co. v. NLRB, 377 F.2d 683, 686 (7th Cir. 1967). In the context of labor disputes, and particularly section 8(a)(5) violations, however, the technical question of whether a contract was accepted in the traditional sense is perhaps less vital than it otherwise would be. Rather, a more crucial inquiry is whether the two sides have reached an “agreement,” even though that “agreement” might fall short of the technical requirements of an accepted contract. Judge Duniway stated for this court in Lozano Enterprises v. NLRB, 327 F.2d 814, 818 (9th Cir. 1964): “We do not think that, in deciding whether, under a particular set of circumstances, an employer and a union have in fact arrived at an agreement that the employer is then obliged to embody in a written contract upon the union’s request, the Board is strictly bound by the technical rules of contract law.” Accord, San Antonio Machine & Supply Corp. v. NLRB, 363 F.2d 633, 636 (5th Cir. 1966). Moreover, the Supreme Court has held that the refusal of an employer to sign a contract embodying agreed upon terms is evidence of a refusal to bargain collectively in good faith .and thus can constitute a section 8(a)(5) violation. NLRB v. Strong, 393 U.S. 357, 359, 89 S.Ct. 541, 21 L.Ed.2d 546 (1969); H. J. Heinz v. National Labor Relations Board, 311 U.S. 514, 523-26, 61 S.Ct. 320, 85 L.Ed. 309 (1941). Such a refusal is often held to be violative of the specific language of section 8(d) of the Labor Act, defining collective bargaining as, inter alia, the “execution of a written contract incorporating any agreement reached if requested by either party.” See Lozano Enterprises v. NLRB, supra, at 819; NLRB v. International Furniture Co., 212 F.2d 431 (5th Cir. 1954). Applying these standards to this case, we agree with the Board that the Company violated section 8(a)(5) and (1) of the Act by refusing to execute the contract agreed upon. The record as a whole clearly and convincingly supports the Board’s conclusion on" }, { "docid": "2002875", "title": "", "text": "factual findings are supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e), (f); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); Graham Architectural Products Corp. v. NLRB, 697 F.2d 534, 537 (3d Cir.1983). The company further contends that the Board erred in holding that the cost-of-living provisions were terms and conditions of employment surviving expiration of the contract. As this issue requires us to interpret and apply legal precepts and to interpret the expired contract, our review is plenary. Allied Chemical and Alkali Workers of America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 182, 92 S.Ct. 383, 399, 30 L.Ed.2d 341 (1971); Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102 (3d Cir.1981). Whether the company engaged in bad faith bargaining requires separate consideration of its conduct both prior to and following the strike. Therefore, we proceed by addressing first whether the company engaged in bad faith bargaining during negotiations prior to the strike; second, whether substantial evidence supports the finding of an unfair labor practice strike; and third, whether the company engaged in unfair labor practices following the strike. We then consider whether the company violated the Act by discontinuing the cost-of-living adjustments. III. Section 8(a)(5) of the National Labor Relations Act makes it an unfair labor practice for an employer to refuse to bargain collectively with its employees’ representatives. Section 8(d), which defines collective bargaining, provides: [T]o bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession. The Board held that, prior to the November strike, the company engaged in bad faith" }, { "docid": "18688726", "title": "", "text": "standing. Finally, we note that Annen did acknowledge that the data provided to him by Georgia-Pacific indicated that the plant was paying its bills on time. Accordingly, substantial evidence does support the Board’s finding that Georgia-Pacific’s negotiators “disavowed any plea of poverty.” The record is replete with representations that the Kalamazoo plant was not financially healthy. This same record, however, substantiates Georgia-Pacific’s asserted desire to improve its standing among its competitors. The Board could reasonably determine that Georgia-Pacific’s demand for concessions was rooted in its desire to maximize its profits and not in a plea of poverty. In other words, Georgia-Pacific represented that it “would not” rather than it “could not” meet the Union’s demands. Accordingly, the Board made a rational conclusion when it determined that the Company was not required to release financial documents. Therefore, the Board properly dismissed this complaint. B. An employer may not alter the existing terms and conditions of employment in a collective bargaining agreement without first bargaining to impasse with the union over the terms. Peabody Coal Co. v. NLRB, 725 F.2d 357, 365 (6th Cir.1984); NLRB v. Allied Products Corp., 548 F.2d 644, 652 (6th Cir.1977). The District of Columbia Circuit recently stated: [A]n employer may unilaterally implement its proposals upon impasse in negotiations. “After bargaining to impasse, that is, after good-faith negotiations have exhausted the prospects of concluding an agreement, an employer does not violate the Act by making unilateral changes that are reasonably comprehended within his pre-impasse proposals.” American Fed’n of Television & Radio Artists v. NLRB, 395 F.2d 622, 624 (D.C.Cir.1968) (emphasis added); see also Emhart Indus. v. NLRB, 907 F.2d 372, 377 (2d Cir.1990); Lapham-Hickey Steel Corp. v. NLRB, 904 F.2d 1180, 1185 (7th Cir.1990); Southwest Forest Indus., Inc. v. NLRB, 841 F.2d 270, 273 (9th Cir.1988); United Steelworkers v. Fort Pitt Steel Casting Div., 635 F.2d 1071, 1078 (3d Cir.1980), cert. denied, 451 U.S. 985, 101 S.Ct. 2319, 68 L.Ed.2d 843 (1981); Omaha Typographical Union, No. 190 v. NLRB, 545 F.2d 1138, 1142 n. 4 (8th Cir.1976). NLRB v. McClatchy Newspapers, Inc., 964 F.2d 1153, 1165 (D.C.Cir.1992) (emphasis" }, { "docid": "2192421", "title": "", "text": "less to execute a contract on its behalf, on well-recognized principles of agency. See in this connection generally 2 CJS, Agency § 99 at 1227 (implied authority); 2 CJS, Agency § 92 at 1188 ff and particularly § 96 at 1205 (apparent authority).” Our study of the record in the light of the briefs and argument leads us to agree with the result reached by the district court. Good faith bargaining is intended to assist and encourage, but not to compel, the parties to reach an agreement. The statute’ wisely permits the broadest latitude of action. In some cases it may facilitate the reaching of an agreement to have at the conference table representatives with authority to bind their principals; in other instances, it may be best that the authority of the representatives extend no further than to confer and negotiate and make recommendations to their respective principals. Long before the Labor Management Relations Act of 1947, the signing of a written agreement had been recognized as the final step in the bargaining process. H. J. Heinz Co. v. NLRB, 1941, 311 U.S. 514 [61 S.Ct. 320]. Nonetheless, it is not mandatory that the contract be written. Rabouin v. NLRB, 2 Cir. 1952, 195 F.2d 906, 910. These principles are succinctly stated in 29 U.S.C.A. 158(d) as follows: “(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions . of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession * * *.” Clinton did not object to that part of the limitation imposed by the letter of authorization which stated that “ * * * the undersigned reserves the right, individually, in his sole discretion," }, { "docid": "15906681", "title": "", "text": "company agree to its inclusion in a new contract. The Board’s order requires the union to cease and desist from the unfair labor practice and to bargain with the company over “wages, hours, and other terms and conditions of employment.” II. Contract Arbitration as a Mandatory Subject of Bargaining. Under section one of the Act, the policy of the United States is to protect the right of employees to designate their representatives and encourage to collective bargaining between employers and those representatives. 29 U.S.C. § 151. To this end section 8(b)(3) provides that it is an unfair labor practice for a labor organization “to refuse to bargain collectively with an employer.” Id. § 158(b)(3). Further, section 8(d) provides that to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement . . . and the execution of a written contract incorporating any agreement reached if requested by either party . . . . Id. § 158(d). Wages, hours, and other terms and conditions of employment are considered mandatory subjects of collective bargaining, and either party may insist upon inclusion of a clause relating to those subjects. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 210, 85 S.Ct. 398, 13 L.Ed.2d 233, 238 (1964). By the same token it is unlawful to insist upon the inclusion of a clause relating to matters as to which collective bargaining is not mandatory. NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349, 78 S.Ct. 718, 2 L.Ed.2d 823, 829 (1958); Philip Carey Manufacturing Co. v. NLRB, 331 F.2d 720, 726 (6th Cir.), cert. denied, 379 U.S. 888, 85 S.Ct. 159, 13 L.Ed.2d 92 (1964). Thus, it is incumbent upon us to determine whether the Board correctly concluded that contract arbitra tion is not a mandatory subject of bargaining. In assessing the Board’s conclusion, we must keep in mind the Supreme Court’s dictum that “classification of" }, { "docid": "20067716", "title": "", "text": "adequately controlled within and the employees were over-crowded. The Hollins Ferry Road facility was too hot in the summer and too cold in the winter. There was inadequate space for [Universal’s] production operation. State and local authorities complained to [Universal] about fire hazards and inadequate sanitation. These conditions impaired plant operations. The overcrowded conditions in the plant production area caused [Universal] to move its research and quality control activity to a trailer. Further, these shortcomings caused poor productivity and poor product quality at the Hollins Ferry Road plant. . § 8(a) reads as follows: It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7. * * * * * * (5) to refuse to bargain collectively with the representatives of his employees.... . § 8(d) provides as follows: For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession .... . See footnote 3 for full text of § 8(d). . A “partial closing” is considered to be a closing of one or more facilities by the employer having more facilities than those which he is closing. Textile Workers’ Union v. Darlington Mfg. Co., 380 U.S. 263, 275, 85 S.Ct. 994, 1002, 13 L.Ed.2d 827 (1965). . See, e. g., Ozark Trailers, Inc., 161 NLRB 561 (1966). . See, e. g., Royal Typewriter Co. v. N.L.R.B., 533 F.2d 1030 (8th Cir. 1976); N.L.R.B. v. Thompson Transport Co., 406 F.2d 698 (10th Cir. 1969); N.L.R.B. v. Transmarine Navigation Corp., 380 F.2d 933, 939 (9th Cir. 1967); N.L.R.B. v. Adams Dairy, Inc.," }, { "docid": "20067717", "title": "", "text": "and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession .... . See footnote 3 for full text of § 8(d). . A “partial closing” is considered to be a closing of one or more facilities by the employer having more facilities than those which he is closing. Textile Workers’ Union v. Darlington Mfg. Co., 380 U.S. 263, 275, 85 S.Ct. 994, 1002, 13 L.Ed.2d 827 (1965). . See, e. g., Ozark Trailers, Inc., 161 NLRB 561 (1966). . See, e. g., Royal Typewriter Co. v. N.L.R.B., 533 F.2d 1030 (8th Cir. 1976); N.L.R.B. v. Thompson Transport Co., 406 F.2d 698 (10th Cir. 1969); N.L.R.B. v. Transmarine Navigation Corp., 380 F.2d 933, 939 (9th Cir. 1967); N.L.R.B. v. Adams Dairy, Inc., 350 F.2d 108 (8th Cir. 1965); cert. denied, 382 U.S. 1011, 86 S.Ct. 619, 15 L.Ed.2d 526 (1966); N.L.R.B. v. Royal Plating & Polishing Co., 350 F.2d 191 (3d Cir. 1965). . N.L.R.B. v. First Nat. Maintenance Corp., 627 F.2d 596 (2d Cir. 1980), cert. granted,-U.S. -, 101 S.Ct. 854, 66 L.Ed.2d 798 (1981); Brockway Motor Trucks v. N.L.R.B., 582 F.2d 720 (3d Cir. 1978). . Article XII of the collective bargaining agreement provides: The union recognizes that the Company shall have the sole and exclusive jurisdiction of the management and operation of its business, the direction of its workforce, including the assignment of tasks and machines to employees, the right to maintain discipline and efficiency in this plant, the right to promulgate and enforce reasonable working rules, the right to hire, discipline and discharge employees subject to the provisions of this Agreement, the right to establish starting times and quitting times, to establish or discontinue shifts, to assign employees to shifts, and the right to relocate its plant or any portion thereof. It is" }, { "docid": "8715999", "title": "", "text": "adamant demand to treat the benefits secured by the Union from Wallace as vested benefits and to bargain upward from that point.” The duty to bargain as set forth in § 8(d) of the Act, 29 U.S.C. § 158(d), requires that the parties meet and confer in good faith. However, § 8(d) “does not compel either party to agree to a proposal or require the making of a concession. .” In discussing this section and its history the Supreme Court in H. K. Porter Co., Disston Div.-Danville Works v. NLRB, 397 U.S. 99, 106, 90 S.Ct. 821, 825, 25 L.Ed.2d 146 (1970), quoted one of its earlier decisions that “it is ‘clear that the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements.’ ” The Court in Porter, in holding that the Board could not compel agreement, stated: “It cannot be said that the Act forbids an employer or a union to rely ultimately on its economic strength to try to secure what it cannot obtain through bargaining.” 397 U.S. at 109, 90 S.Ct. at 826. Without substantial evidence that a negotiating party’s attitude is inconsistent with its duty to seek an agreement, the mere fact that it adamantly insists on a bargaining position or has not budged from its position on most issues cannot suffice to render it guilty of a refusal to bargain in good faith. NLRB v. MacMillan Ring-Free Oil Co., 394 F.2d 26 (9th Cir.), cert, denied, 393 U.S. 914, 89 S.Ct. 237, 21 L.Ed.2d 199 (1968); NLRB v. Almeida Bus Lines, Inc., 333 F.2d 729 (1st Cir. 1964). “ ‘If the insistence is genuinely and sincerely held, if it is not mere window dressing, it may be maintained forever though it produce a stalemate. Deep conviction, firmly held and from which no withdrawal will be made, may be more than the traditional opening gambit of a labor controversy. It may be both the right of the citizen and essential to our economic legal system * * * of free collective bargaining.’ (Citation" }, { "docid": "15157585", "title": "", "text": "bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract. . 29 U.S.C. § 158(d). . The Board has uniformly interpreted § 8(d) to require mid-term bargaining on mandatory subjects. Huttig Sash & Door Co., 60 L.R.R.M. 1035 (1965), enforced, 377 F.2d 964 (8th Cir. 1967); Fibreboard Paper Products Corp., 47 L.R.R.M. 1547 (1961), enforced, 116 U.S.App. D.C. 198, 322 F.2d 411 (D.C.Cir. 1963), aff’d, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). Tide Water Associated Oil Co., 24 L.R.R.M. 1518 (1949). Decisions of the Court of Appeals have generally concerned bargaining orders on unilateral changes and the question whether the union had waived its rights to bargaining regarding the change. See, e. g., NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); NLRB v. R. L. Sweet Lumber Co., 515 F.2d 785 (10th Cir.), cert. denied, 423 U.S. 986, 96 S.Ct. 393, 46 L.Ed.2d 302, 44 U.S.L.W. 3305 (1975); NLRB v. Raven Industries, Inc., 508 F.2d 1289 (8th Cir. 1974); Murphy Diesel Co. v. NLRB, 454 F.2d 303 (7th Cir. 1971); NLRB v. Wisconsin Aluminum Foundry Co., 440 F.2d 393 (7th Cir. 1971); NLRB v. General Electric Co., 418 F.2d 736 (2nd Cir. 1969), cert. denied, 397 U.S. 965, 90 S.Ct. 995, 25 L.Ed.2d 257 (1970). . We do not understand this part of the order to require the respondent to do more than show its good faith in" }, { "docid": "6188318", "title": "", "text": "of its “rigid adherence” to wage and benefit reductions, made proposals that were “predictably unacceptable”. Although we agree that respondents have incurred in an 8(a)(1) and (5) violation, we are not persuaded that Respondents bargaining proposals were per se a violation of law or that they were “predictably unacceptable”. The duty to negotiate in good faith mandated by Section 8(a)(5); 8(b)(3) and 8(d) of the Act requires both parties to bargain with a “serious intent to adjust differences and to reach an acceptable common ground”. NLRB v. Truitt Mfg., 351 U.S. 149, 155, 76 S.Ct. 753, 757, 100 L.Ed. 1027 (1956). Section 8(d) of the Act requires the employer and the employees’ representatives to “meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment ... but such obligation does not compel either party to agree to a proposal or requires the making of a concession.” NLRB v. American Natl. Insurance Co., 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027 (1952); H.K. Porter Co. v. NLRB, 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970). The duty to bargain in good faith requires both parties “to participate actively in the deliberations so ás to indicate a present intention to find a basis for an agreement”. NLRB v. Montgomery Ward & Co., 133 F.2d 676 (9th Cir.1943). Both parties are thus required to have “an open mind and a sincere desire to reach an agreement”. NLRB v. Truitt Mfg. Go., supra. Furthermore, the employer and the Union are required to make “a sincere effort ... to reach a common ground.” NLRB v. Montgomery Ward & Co., supra. In determining whether an employer has engaged in good faith as opposed to surface bargaining, the Board and the courts must engage in the task of examining the total conduct of the employer. Atlanta Hilton & Tower, 271 NLRB 1600 (1984); NLRB v. Cable Vision, 660 F.2d 1 (1st Cir. 1981); NLRB v. Herman Sausage Co., 275 F.2d 229, 231 (5th Cir.1960). The examination includes a review of the following:" } ]

[ { "docid": "22666935", "title": "", "text": "record and therefore had it seized along with various other items, including books and records of the company, stock certificates, and. address books. On March 1, 1971, a special grand jury was convened in the Northern District of Ohio to investigate possible loansharking activities in violation of federal laws. The grand jury subpoenaed Calandra in order to ask him questions based on the evidence seized during the search of his place of business on December 15, 1970. Calandra appeared before the grand jury on August 17, 1971, but refused to testify, invoking his Fifth Amendment privilege against self-incrimination. The Government then requested the District Court to grant Calandra transactional immunity pursuant to 18 U. S. C. § 2514. Calandra requested and received a postponement of the hearing on the Government’s application for the immunity order so that he could prepare a motion to suppress the. evidence seized in the search. Calandra later moved pursuant to Fed. Rule Crim. Proc. 41 (e) for suppression and return of the seized evidence on the grounds that the affidavit supporting the' warrant was insufficient and that the search exceeded the scope of the warrant. On August 27, the District Court held a hearing at which Calandra stipulated that he would refuse to answer questions based on the seized materials. On October 1, the District Court entered its judgment ordering the evidence suppressed and returned to Calandra and further ordering that Calandra need not answer any of the grand jury’s questions based on the suppressed evidence. 332 F. Supp. 737 (1971). The court held that “due process . . . allows a witness to litigate the question of whether the evidence which constitutes the basis for the questions asked of him before the grand jury has been obtained in a way which violates the constitutional protection against unlawful search and seizure.” Id., at 742. The court found that the search warrant had been issued without probable cause and that the search had exceeded the scope of the warrant. The Court of Appeals for the Sixth Circuit affirmed, holding that the District Court had properly entertained" } ]

[ { "docid": "11650997", "title": "", "text": "GEWIN, Circuit Judge: This appeal concerns the legitimacy of incarceration of a grand jury witness under the district court’s civil contempt power, 28 U.S.C. § 1826. The witness in question, ruled in contempt and imprisoned because he refused to answer questions after a grant of “dse” immunity pursuant to 18 U.S.C. § 6002, challenges the district court’s order on the grounds that the government secured information for questioning him through illegal electronic surveillance and that the grand jury lacked authority to compel his testimony. Finding these contentions unpersuasive, we affirm. A grand jury empanelled in the Southern District of Florida first subpoenaed the appellant Stevens to appear before it in May 1974. He appeared but refused to testify, asserting the Fifth Amendment privilege against self-incrimination. The district court, acting at the government’s request, thereupon immunized him under 18 U.S.C. § 6002 and ordered that he give testimony before the grand jury which had subpoenaed him, “as well as any subsequent Grand Jury, proceeding or trial.” Stevens subsequently reappeared before the grand jury but again declined to answer all but preliminary questions concerning his name, address and occupation. He was immediately brought before the district court, adjudged in contempt, and imprisoned under 28 U.S.C. § 1826. He remained in jail until November 21, 1974, the date on which the grand jury term expired. Stevens does not now contest the validity of this initial incarceration. On November 5, 1974, several weeks prior to his release, and during the term of the initial grand jury, Stevens received a subpoena to testify before a second grand jury which was to convene on November 26, 1974. He responded by filing a motion to quash the subpoena on the grounds that a grand jury had power only to subpoena witnesses for testimony during the course of its own term and could not order a witness to appear before a grand jury not yet empanelled. The motion was denied. On December 10, 1974, Stevens appeared before the second grand jury. Although reminded that he was testifying under a grant of immunity, he would state only his name" }, { "docid": "22620741", "title": "", "text": "was sentenced to prison for two years “or until the further order of this Court. Should . . . Mr. Shillitani answer those questions before the expiration of said sentence, or the discharge of the said grand jury, whichever may first occur, the further order of this Court may be made terminating the sentence of imprisonment.” The Court of Appeals affirmed, rejecting Shillitani’s constitutional objection to the imposition of a two-year sentence without indictment or trial by jury on the basis that “the contempt proceedings preceded any compliance” and the “sentence contained a purge clause.” It further construed the sentence as giving Shillitani an unqualified right to be released if and when he obeyed the order to testify. 345 F. 2d, at 294. No. 442, Pappadio v. United States. Pappadio appeared under subpoena before the same grand jury. He also refused three times to answer numerous questions on the ground that the answers would incriminate him. He was then granted immunity under 18 U. S. C. § 1406 and directed to testify. He continued to refuse to answer any questions except those of identification. In opposition to the grand jury’s subsequent request that the District Court require Pappadio to cooperate, his attorney claimed that he should not be called as a witness so long as a 1958 indictment charging him with conspiracy to violate the narcotics laws was pending. The District Court held that Pappadio had complete immunity, including any criminal proceeding then pending, and ordered him to answer all questions previously asked. Upon return to the grand jury, Pappadio did respond to numerous questions, but still refused to answer five questions pertaining to his alleged association with a group headed by Thomas Lucchese which engaged in narcotics traffic and other illicit activities. An order to show cause was issued, Pappadio’s demand for a jury was denied, and the District Court found him in contempt for willful disobedi ence of its order to testify. He received a sentence almost identical to that given Shillitani, and the Court of Appeals affirmed on the same grounds. II. We believe that the character" }, { "docid": "6529500", "title": "", "text": "merely supplanted Weir’s Fifth Amendment rights to refuse to answer questions on the ground of self-incrimination. Kastigar v. United States, 406 U.S. 441, 442, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The immunity order received its validity from the fact that the court issued it arid not because any grand jury was in session. 18 U.S.C. § 6003(a). Weir cites United States v. Duncan, 456 F.2d 1401 (9 Cir.), rev’d on other grounds, 409 U.S. 814, 93 S.Ct. 161, 34 L.Ed.2d 72 (1972), and United States v. Hawkins, 501 F.2d 1029 (9 Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974). In Duncan the government secured a second immunity order prior to calling the witness before a successor grand jury. However, the issue was not litigated, the wording of the immunity orders is not set forth, and immunity was granted under a different statute, 18 U.S.C. § 2514. Hawkins, supra, merely held that “separate successive contempts are punishable as separate offenses.” 501 F.2d at 1031. The case does not state whether successor grand juries were involved. Obviously it would make no difference. No new immunity order was required and the contention to the contrary is without merit. II. A New Order to Testify Was Not Necessary The original order of November 1, 1973, required Weir to testify “before the Grand Jury of the United States and in all proceedings ancillary thereto and resulting therefrom . . . .” There is no case law bearing directly on the issue. Weir relies on dicta in Yates v. United States, 227 F.2d 844 (9 Cir. 1955). There the lower court continued Yate’s imprisonment for contempt for refusing to answer certain questions before the trial court, after the trial ended. This court held that “[i]f the witness were ordered to testify or wished to testify, there is no body before which the testimony could be received.” Id. at 847. The panel’s following remarks were dicta. In Stevens, supra, the appellant contended “. . . the initial grand jury lacked authority to issue a subpoena compelling his appearance before a grand" }, { "docid": "6529497", "title": "", "text": "which he testifies, the Government shall be limited in presenting its case to the use of the evidence presented to this Court in camera on November 1, 1973, and shall not be permitted to introduce evidence not then available to it.” Thereafter, the term of the grand jury before which Weir originally refused to testify expired on or about May 13, 1974. The new grand jury was impaneled on May 23, 1974. Weir, after accepting the subpoena to testify on May 28, 1974, appeared before a new grand jury on February 20, 1975 (following the denial of certiorari in the prior proceeding) and refused to answer questions identical to those he had been asked before the prior grand jury. Weir was then brought back before the district judge and was ordered on March 27, 1975, to answer the particular questions before the grand jury. In order to save time it was stipulated that if he returned before the grand jury and the questions were asked, he would again refuse to answer them. On that day, March 27, 1975, the district court held Weir in civil contempt, stayed execution of the order and released him on his own recognizance. The appeal is from that order of contempt. Weir raises again various contentions he made in the first appeal. We need not discuss them since they were disposed of in our prior opinion (495 F.2d 879). In addition, he raises three additional questions: (1) Was it necessary to secure a new order to testify before the successor grand jury? (2) Was it necessary for the court to make a new order of immunity? (3) Was it necessary that the government show that the matter was again submitted to the Attorney General for his approval of the grant of immunity? DISCUSSION I. A New Order of Immunity Was Not Required The statute governing the procedure for an order for contempt of a recalcitrant witness, 28 U.S.C. § 1826(a), expressly provides that the sentence on the contempt of a witness refusing to answer questions before a grand jury (or a trial jury), after a" }, { "docid": "22113274", "title": "", "text": "Mr. Justice Stewart delivered the opinion of the Court. The petitioner was sentenced to 15 months’ imprisonment for criminal contempt stemming from his refusal to testify before a federal grand jury. His conviction was affirmed by the Court of Appeals, 247 F. 2d 332. The case was brought here primarily to review the validity of the procedure which resulted in the contempt adjudication. 356 U. S. 926. Other issues relate to the nature and extent of immunity from prosecution conferred by § 205 (e) of the Interstate Commerce Act, as amended, and the severity of the punishment imposed by the District Court. A grand jury in the Southern District of New York investigating possible violations of Part II of the Interstate Commerce Act issued a subpoena directing the petitioner to appear and testify as to “all and everything which you may know in regard to an alleged violation of Sections 309, 322, Title 49, United States Code.” In response to this subpoena the petitioner appeared and, after being sworn, answered a few preliminary questions. He was then asked six further questions concededly relevant to the grand jury’s inquiry. These he refused to answer upon the ground of possible self-incrimination. After consulting with his lawyer, who was continuously present in an adjoining anteroom, the petitioner persisted in his refusal to answer, although advised at length by the Assistant United States Attorney that the applicable statute conferred complete immunity from prosecution as to any matter concerning which the petitioner might testify, and that, therefore, “you do not have any privilege to plead the Fifth Amendment.” Thereupon the scene of the proceedings shifted to the courtroom, where the grand jury sought the aid of the district judge. After being apprised of what had transpired in the grand jury room, the. district judge heard extensive argument by counsel as to the scope of immunity afforded a grand jury witness under the applicable statute. Following a weekend recess the district judge ruled that under the statute the petitiqner would be accorded immunity as extensive as the privilege he had asserted, and directed that the petitioner" }, { "docid": "6529496", "title": "", "text": "made a combination grant of immunity under 18 U.S.C. §§ 6002 and 6003 and an order to testify under 28 U.S.C. § 1826. It read as follows: “Ordered that James Frederick Weir, in accordance with the provisions of § 6002 of Title 18, United States Code, shall testify before the Grand Jury of the United States, and in all proceedings ancillary thereto and resulting therefrom, and not be excused from testifying on the basis of his privilege of self-incrimination. “However, no testimony or other information compelled under this order, or other information directly or indirectly derived from such testimony or other information, may be used against such witness in any criminal case except a prosecution for perjury for giving false statements or other wise failing to comply with this order.” Subsequently, the trial court examined evidence presented to it in camera on November 1, 1973, and made the following order: “It Is Hereby Ordered that, at any subsequent prosecution of James Frederick Weir, Jr., for or on account of any transaction, matter, or thing concerning which he testifies, the Government shall be limited in presenting its case to the use of the evidence presented to this Court in camera on November 1, 1973, and shall not be permitted to introduce evidence not then available to it.” Thereafter, the term of the grand jury before which Weir originally refused to testify expired on or about May 13, 1974. The new grand jury was impaneled on May 23, 1974. Weir, after accepting the subpoena to testify on May 28, 1974, appeared before a new grand jury on February 20, 1975 (following the denial of certiorari in the prior proceeding) and refused to answer questions identical to those he had been asked before the prior grand jury. Weir was then brought back before the district judge and was ordered on March 27, 1975, to answer the particular questions before the grand jury. In order to save time it was stipulated that if he returned before the grand jury and the questions were asked, he would again refuse to answer them. On that day," }, { "docid": "22666936", "title": "", "text": "supporting the' warrant was insufficient and that the search exceeded the scope of the warrant. On August 27, the District Court held a hearing at which Calandra stipulated that he would refuse to answer questions based on the seized materials. On October 1, the District Court entered its judgment ordering the evidence suppressed and returned to Calandra and further ordering that Calandra need not answer any of the grand jury’s questions based on the suppressed evidence. 332 F. Supp. 737 (1971). The court held that “due process . . . allows a witness to litigate the question of whether the evidence which constitutes the basis for the questions asked of him before the grand jury has been obtained in a way which violates the constitutional protection against unlawful search and seizure.” Id., at 742. The court found that the search warrant had been issued without probable cause and that the search had exceeded the scope of the warrant. The Court of Appeals for the Sixth Circuit affirmed, holding that the District Court had properly entertained the suppression motion and that the exclusionary rule may be invoked by a witness before the grand jury to bar questioning based on evidence obtained in an unlawful search and seizure. 465 F. 2d 1218 (1972). The offer to grant Calandra immunity was deemed irrelevant. Id., at 1221. We granted the Government’s petition for certiorari, 410 U. S. 925 (1973). We now reverse. I — I H-f The institution of the grand jury is deeply rooted in Anglo-American history. In England, the grand jury served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action. In this country the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by “a presentment or indictment of a Grand Jury.” Cf. Costello v. United States, 350 U. S. 359, 361-362 (1956). The grand jury’s historic functions survive to" }, { "docid": "13672751", "title": "", "text": "to answer questions, he continued to refuse, claiming that his refusal was based on his fear of foreign prosecution. Upon his refusal to comply with Judge Cooper’s order, the judge orally adjudged him to be in civil contempt of court. A written contempt order was entered on November 4. Gilboe was ordered confined at a suitable place until such time as he complies with the orders of the court and testifies before the grand jury or until the expiration of the term of the grand jury, but in no event for more than 18 months. His 20 year sentence referred to above was ordered stayed during his confinement pursuant to the contempt order. From his civil contempt order, Gilboe has taken this appeal. III. Despite the shifting sands upon which Gilboe has grounded his refusals to testify before the grand jury, the sole claim raised on this appeal is that such testimony would expose him to prosecutions in foreign countries in contravention of his privilege against self-incrimination. When a witness is granted use immunity pursuant to 18 U.S.C. §§ 6002 and 6003, ordinarily he may not refuse to testify on the ground of his Fifth Amendment privilege against self-incrimination, since he is protected against the direct or derivative use of such testimony against him in any subsequent federal or state prosecution. Kastigar v. United States, 406 U.S. 441, 459, 462 (1972). Such use immunity “affords the same protection [as the Fifth Amendment privilege] by assuring that the compelled testimony can in no way lead to the infliction of criminal penalties.” Id. at 461. Such immunity “is coextensive with the privilege and suffices to supplant it.” Id. at 462. A witness’ claim that his testimony will incriminate him with respect to a prosecution in a foreign country is on a different footing. Use immunity granted by a court in the United States cannot foreclose a foreign prosecution. At the moment it is an open question whether the Fifth Amendment privilege against self-incrimination may be invoked in a proceeding in the United States when the witness’ fear is of incrimination in a" }, { "docid": "6529495", "title": "", "text": "OPINION Before KOELSCH, ELY and CARTER, Circuit Judges. JAMES M. CARTER, Circuit Judge: This appeal involves a contempt proceeding against James Frederick Weir, a grand jury witness. The prior history of the case is shown in In Re Weir, 377 F.Supp. 919 (S.D.Cal.1974) holding Weir in contempt, aff’d, In Re Weir, 495 F.2d 879 (9 Cir.), cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974). Pursuant to 28 U.S.C. § 1826, Weir was originally held in contempt for refusing to answer questions before a grand jury and the circuit affirmed on April 19, 1974 (citations supra). On May 13, 1974, the term of the grand jury before which Weir had refused to answer questions ended. On May 28, 1974, Weir voluntarily accepted service of a subpoena for appearance before a new grand jury. On June 17, 1974, the district court stayed proceedings pending disposition of the petition for certiorari. The petition was denied by the Supreme Court on November 25, 1974. In the prior proceeding the district court, on November 1, 1973, made a combination grant of immunity under 18 U.S.C. §§ 6002 and 6003 and an order to testify under 28 U.S.C. § 1826. It read as follows: “Ordered that James Frederick Weir, in accordance with the provisions of § 6002 of Title 18, United States Code, shall testify before the Grand Jury of the United States, and in all proceedings ancillary thereto and resulting therefrom, and not be excused from testifying on the basis of his privilege of self-incrimination. “However, no testimony or other information compelled under this order, or other information directly or indirectly derived from such testimony or other information, may be used against such witness in any criminal case except a prosecution for perjury for giving false statements or other wise failing to comply with this order.” Subsequently, the trial court examined evidence presented to it in camera on November 1, 1973, and made the following order: “It Is Hereby Ordered that, at any subsequent prosecution of James Frederick Weir, Jr., for or on account of any transaction, matter, or thing concerning" }, { "docid": "22666951", "title": "", "text": "an illegal search and seizure constitutes a fresh and independent violation of the witness’ constitutional rights. Ordinarily, of course, a witness has no right of privacy before the grand jury. Absent some recognized privilege of confidentiality, every man owes his testimony. He may invoke his Fifth Amendment privilege against compulsory self-incrimination, but he may not decline to answer on the grounds that his responses might prove embarrassing or result in an unwelcome disclosure of his personal affairs. Blair v. United States, 250 U. S. 273 (1919). Respondent’s claim must be, therefore, not merely that the grand jury’s questions invade his privacy but that, because those questions are based on illegally obtained evidence, they somehow constitute distinct violations of his Fourth Amendment rights. We disagree. The purpose of the Fourth Amendment is to prevent unreasonable governmental intrusions into the privacy of one’s person, house, papers, or effects. The wrong condemned is the unjustified governmental invasion of these areas of an individual’s life. That wrong, committed in this case, is fully accomplished by the original search without probable cause. Grand jury questions based on evidence obtained thereby involve no independent governmental invasion of one’s person, house, papers, or effects, but rather the usual abridgment of personal privacy common to all grand jury questioning. Questions based on illegally obtained evidence are only a derivative use of the product of a past unlawful search and seizure. They work no new Fourth Amendment wrong. Whether such derivative use of illegally obtained evidence by a grand jury should be proscribed presents a question, not of rights, but of remedies. In the usual context of a criminal trial, the defendant is entitled to the suppression of, not only the evidence obtained through an unlawful search and seizure, but also any derivative use of that evidence. The prohibition of the exclusionary rule must reach such derivative use if it is to fulfill its function of deterring police misconduct. In the context of a grand jury proceeding, we believe that the damage to that institution from the unprecedented extension of the exclusionary rule urged by respondent outweighs the benefit" }, { "docid": "6529498", "title": "", "text": "March 27, 1975, the district court held Weir in civil contempt, stayed execution of the order and released him on his own recognizance. The appeal is from that order of contempt. Weir raises again various contentions he made in the first appeal. We need not discuss them since they were disposed of in our prior opinion (495 F.2d 879). In addition, he raises three additional questions: (1) Was it necessary to secure a new order to testify before the successor grand jury? (2) Was it necessary for the court to make a new order of immunity? (3) Was it necessary that the government show that the matter was again submitted to the Attorney General for his approval of the grant of immunity? DISCUSSION I. A New Order of Immunity Was Not Required The statute governing the procedure for an order for contempt of a recalcitrant witness, 28 U.S.C. § 1826(a), expressly provides that the sentence on the contempt of a witness refusing to answer questions before a grand jury (or a trial jury), after a grant of immunity, may not exceed eighteen months or the balance of the term of the grand jury before whom the witness refused to answer questions. Thus the particular grand jury involved is only important as its existence bears on the serving of the sentence imposed. There is no provision for a new order to testify before the successor grand jury nor any provision for a new grant of immunity. Logically, it appears that the grant of immunity order would be perpetual in its operation. Prospective grants of immunity appear to be contemplated by 18 U.S.C. § 6003(a) and no time limits for completion of testimony are fixed therein. There is no case law directly in point. In United States v. Stevens, 510 F.2d 1101 (5 Cir. 1975), a second contempt adjudication before a new grand jury was affirmed even though no new immunity order was obtained, but the issue was not discussed. Furthermore, the court order granting immunity in the present case was not the order that Weir refused to obey. The immunity order" }, { "docid": "22666975", "title": "", "text": "would be subverted were the plain command of § 2515 ignored when the victim of an illegal interception is called as a witness before a grand jury and asked questions based upon that interception. Moreover, § 2515 serves not only to protect the privacy of communications, but also to ensure that the courts do not become partners to illegal conduct: the evidentiary prohibition was enacted also 'to protect the integrity of court and administrative proceedings.’ Consequently, to order a grand jury witness, on pain of imprisonment, to disclose evidence that § 2515 bars in unequivocal terms is both to thwart the congressional objective of protecting individual privacy by excluding such evidence and to entangle the courts in the illegal acts of Government agents.” 408 U. S., at 51 (footnotes omitted). Similarly to allow Calandra to be subjected to questions derived from the illegal search of his office and seizure of his files is “to thwart the [Fourth and Fourteenth Amendments’ protection] of . . . individual privacy . . . and to entangle the courts in the illegal acts of Government agents.” Ibid. “And for a court, on petition of the executive department, to sentence a witness, who is [himself] the victim of the illegal [search and seizure], to jail for refusal to participate in the exploitation of that [conduct in violation of the explicit command of the Fourth Amendment] is to stand our whole system of criminal justice on its head.” In re Evans, 146 U. S. App. D. C. 310, 323, 452 F. 2d 1239, 1252 (1971) (Wright, J., concurring). It is no answer, to suggest as the Court does, that the grand jury witnesses’ Fourth Amendment rights will be sufficiently protected “by the inadmissibility of the illegally seized evidence in a- subsequent criminal prosecution of the search victim.” Ante, at 351. This, of course, is no alternative for Calandra, since he was granted transactional immunity and cannot be criminally prosecuted. But the fundamental flaw of the alternative is that to compel Calandra to testify in the first place under penalty of contempt necessarily “thwarts” his Fourth Amendment" }, { "docid": "20340312", "title": "", "text": "OPINION DITTER, District Judge. This case involves an immunized witness who was jailed for contempt and subsequently indicted for activities related to those about which he refused to testify. He has petitioned the court for release from incarceration or, in the alternative, to have the indictment dismissed. I conclude that he is not entitled to either remedy, and therefore relief must be denied. On March 24, 1975, petitioner Americo Buonacuore was called before the grand jury sitting on Mondays in this district to testify about organized gambling activities which possibly constituted violations of 18 U.S.C. §§ 1955 and 371. Invoking his Fifth Amendment privilege against self-incrimination, Buonacuore refused to provide any information. The Government thereafter moved, pursuant to 18 U.S.C. § 6001 et seq., for an order of immunization compelling his testimony. Buonacuore countered with a petition to quash his grand jury subpoena and to deny immunization. Following a hearing, I granted the Government’s motion and refused Buonacuore’s. He thereafter persisted in his refusal to answer questions propounded to him before the grand jury, and the Government moved for a contempt citation. After several hearings, at which considerable testimony relating to Buonacuore’s health was received, on September 4, 1975, I found him to be in civil contempt, and directed that he be committed to the custody of the Attorney General. On November 19, 1975, a different grand jury than that before which Buonacuore had been summoned to appear returned a two-count indictment charging him and five other individuals with violations of 18 U.S.C. §§ 1955 and 371. Two petitions now are before the court. Although seeking essentially identical relief, namely Buonacuore’s release from custody, they are premised upon dramatically different claims. In the first, a habeas corpus petition, Buonacuore alleges that he is being held unlawfully because his “medical condition is such that his life is endangered by being in custody.” The thrust of his second petition for release is that “where a defendant faces trial on an indictment and has not been given transactional immunity, he cannot be called as a witness before a Grand Jury and held in" }, { "docid": "15084003", "title": "", "text": "state equivalents to the federal crimes charged in the federal indictment. It is a serious question whether prosecution would thus be based upon the same “act or omission” as the crimes upon which applicants pleaded nolo contendere and would thereby be barred under § 656. A substantial question arises whether the requisite showing of need under Rule 6 (e) is satisfied when a state prosecution cannot, under state law, result in conviction. If the moving parties had been witnesses before the federal grand jury, serious questions involving the Self-Incrimination Clause of the Fifth Amendment would be involved. No such issue is presented here as to applicants, because they did not testify before the grand jury. Other persons, however, who testified before the grand jury, were granted immunity. Immunity once granted in a federal proceeding may not be nullified by a turnover order obtained by a state prosecutor. Murphy v. Waterfront Comm’n, 378 U. S. 52 (1964). The District Court, moreover, might have granted motions to suppress evidence that had been obtained by the grand jury, and if that occurred, it is difficult to see how motions that were won before, the District Court can be lost at the instance of the state prosecutor. This Court has held that a witness before a grand jury may not refuse to answer questions on the ground that they are based upon evidence obtained in violation of the Fourth Amendment. United States v. Calandra, 414 U. S. 338 (1974). However, from the fact that a grand jury may use illegally seized evidence, it does not follow that the evidence may in turn be given to a state prosecutor. Calandra was based upon the marginal deterrent value that application of the exclusionary rule to grand jury proceedings would have upon illegal police activity. Id., at 351. In addition, the Court found that application of the exclusionary, rule would hinder and disrupt grand jury proceedings. Id., at 349. Neither of those reasons has much force in this case. First, there are no grand jury proceedings to disrupt. Second, a turnover of illegally seized evidence may undermine" }, { "docid": "13672750", "title": "", "text": "again was summoned before the grand jury. An interpreter was present. He persisted in refusing to testify, this time on the ground of his asserted Fifth Amendment privilege. On April 29, upon the government’s application, Judge Sprizzo signed an order of immunity pursuant to 18 U.S.C. § 6003 (1976). On April 30 Gilboe returned to the grand jury. Despite the grant of immunity, however, he persisted in refusing to testify, again invoking his privilege against self-incrimination. At a hearing before Judge Sprizzo, Gilboe moved to quash the grand jury subpoena on three grounds: first, that the requested testimony might prejudice his then pending appeal; second, that the grand jury lacked jurisdiction; and finally, that answers to the questions put to him would incriminate him under the laws of several foreign countries. After receiving briefs, Judge Sprizzo denied the motion to quash in all respects. On November 2 Gilboe again returned to the grand jury. He continued to persist in his refusal to testify. After being directed first by the foreman and then by Judge Cooper to answer questions, he continued to refuse, claiming that his refusal was based on his fear of foreign prosecution. Upon his refusal to comply with Judge Cooper’s order, the judge orally adjudged him to be in civil contempt of court. A written contempt order was entered on November 4. Gilboe was ordered confined at a suitable place until such time as he complies with the orders of the court and testifies before the grand jury or until the expiration of the term of the grand jury, but in no event for more than 18 months. His 20 year sentence referred to above was ordered stayed during his confinement pursuant to the contempt order. From his civil contempt order, Gilboe has taken this appeal. III. Despite the shifting sands upon which Gilboe has grounded his refusals to testify before the grand jury, the sole claim raised on this appeal is that such testimony would expose him to prosecutions in foreign countries in contravention of his privilege against self-incrimination. When a witness is granted use immunity pursuant" }, { "docid": "22787192", "title": "", "text": "a constituent element of a “criminal prosecu-tio[n],” U. S. Const., Amdt. 6, we have said that certain constitutional protections afforded defendants in criminal proceedings have no application before that body. The Double Jeopardy Clause of the Fifth Amendment does not bar a grand jury from returning an indictment when a prior grand jury has refused to do so. See Ex parte United States, 287 U. S. 241, 250-251 (1932); United States v. Thompson, 251 U. S. 407, 413-415 (1920). We have twice suggested, though not held, that the Sixth Amendment right to counsel does not attach when an individual is summoned to appear before a grand jury, even if he is the subject of the investigation. See United States v. Mandujano, 425 U. S. 564, 581 (1976) (plurality opinion); In re Groban, 352 U. S. 330, 333 (1957); see also Fed. Rule Crim. Proc. 6(d). And although “the grand jury may not force a witness to answer questions in violation of [the Fifth Amendment’s] constitutional guarantee” against self-incrimination, Calandra, supra, at 346 (citing Kastigar v. United States, 406 U. S. 441 (1972)), our cases suggest that an indictment obtained through the use of evidence previously obtained in violation of the privilege against self-incrimination “is nevertheless valid.” Calandra, supra, at 346; see Lawn v. United States, 355 U. S. 339, 348-350 (1958); United States v. Blue, 384 U. S. 251, 255, n. 3 (1966). Given the grand jury’s operational separateness from its constituting court, it should come as no surprise that we have been reluctant to invoke the judicial supervisory power as a basis for prescribing modes of grand jury procedure. Over the years, we have received many requests to exercise supervision over the grand jury’s evidence-taking process, but we have refused them all, including some more appealing than the one presented today. In United States v. Calandra, swpra, a grand jury witness faced questions that were allegedly based upon physical evidence the Government had obtained through a violation of the Fourth Amendment; we rejected the proposal that the exclusionary rule be extended to grand jury proceedings, because of “the potential" }, { "docid": "23018442", "title": "", "text": "in the use of firearms and explosives. After confessing, Alwan was charged with a lesser offense, pled guilty, and served approximately eighteen months before being released in June 1997. Before returning to the United States, Alwan met and married a Palestinian woman. She became pregnant soon after, and Alwan decided to remain in the West Bank until the child was born. In March 1998, Alwan returned to the United States alone. Upon his return, Alwan was subpoenaed to testify before a special grand jury investigating criminal activities of HAMAS in the Chicago area. Though he answered background questions, he exercised his Fifth Amendment privilege and refused to answer questions about allegations of money laundering between the Middle East and the United States. In January 1999, Alwan returned to the West Bank to visit his family. He acknowledges that, during this visit, he “was not arrested or harmed by the Israeli military”. In July 1999, after his return to the United States, Alwan was again subpoenaed and appeared before a second special grand jury, also investigating HAMAS activities in Chicago. The district judge granted Alwan immunity from prosecution and informed him that he would be charged with contempt of court if he did not testify. Alwan nonetheless refused to do so, claiming that the immunity he had been granted would not protect him from retaliation during future visits to his family in Israel. As a result, Alwan was convicted of criminal contempt in violation of 18 U.S.C. § 401(8). This conviction, in turn, led the INS to begin deportation proceedings under 8 U.S.C. § 1227(a)(2)(A)(iii), which permits deportation of any alien convicted of an aggravated felony. In August 2003, after an unsuccessful appeal to the BIA, Alwan was deported to the West Bank. II We review factual findings by the BIA to determine whether they are sup ported by substantial evidence. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 350 (5th Cir.2002). A slightly more complex question is what standard we are to apply in reviewing legal conclusions of the BIA. The BIA’s determinations as to purely legal questions are reviewed de novo." }, { "docid": "8792642", "title": "", "text": "having occurred twenty years before, went to the weight of the testimony and not to its competence. This ruling was not in error. By another assignment of error, the defense claims that the court should have dismissed the indictment because the defendant was subpoenaed as a witness before the grand jury, which returned the indictment against him. It is charged that he was questioned about matters for which he was later indicted; that the trial judge directed the defendant to answer questions which he had refused to answer before the grand jury; and that the trial judge failed to instruct the grand jury that no adverse inference was to arise from defendant’s pleading his privilege against self-incrimination under the Fifth Amendment. We find no merit to this assignment of error. We do not find that the questions presented here were specifically raised by the defendant’s motion to dismiss the indictment or that the trial judge ever passed on them, except possibly the one relating to the charge to the grand jury. The mere subpoenaing of the defendant before the grand jury is not per se a violation of his constitutional rights or a ground for dismissal of the indictment. The only questions that the trial judge required the defendant to answer were whether he understood certain questions propounded to him in the grand jury room. Counsel for the defendant cite no instance in their brief where the defendant was required to testify against himself or where he was prejudiced in any way by being subpoenaed before the grand jury. Counsel for the defense argue that the grand jury might have been prejudiced because the defendant stood on the Fifth Amendment and refused to answer questions. The inference is that the grand jury might not have indicted the defendant if it had been properly instructed concerning the defendant’s right to take the Fifth Amendment. This claim is untenable. There was adequate direct evidence against the defendant to warrant the indictment. Since we have held the evidence was sufficient to take the case to the jury at the trial, it was obviously" }, { "docid": "12035644", "title": "", "text": "its internal procedures, the Government must now come forward and affirm or deny that allegation by affidavit as is required of the Government following an allegation of illegal wire tapping under United States v. Alter. This argument extends Alter beyond its proper scope. Noneompliance with the internal procedures involved here, even if such noncompliance were established as a fact, would not deprive Coson of a constitutional right under the Fourth Amendment or otherwise. Nor does the subpoena of records applicable to tax years barred by limitations require the invocation of Alter. Co-son has tendered other arguments of similar import, but none constitutes a defense to his contempt. The wiretap cases present special problems in statutory and Fourth Amendment construction, and are not particularly instructive when employed in a general attack on grand jury subpoenas at large. More instructive are such cases as United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), where the Supreme Court set its face against the interruption of grand jury investigations to try out such questions as competency and relevancy. In Calandra, the Court held that a witness properly before the grand jury must testify even though he claims that some of the questions asked were prompted by information obtained in a search that offended the Fourth Amendment. In light of Calandra, and our own recent decision in United States v. Weir, 520 F.2d 662 (9th Cir. 1975), we agree with the District Court that the points which Coson attempted to raise in this case could not prevail against a proper subpoena. The judgment of contempt is affirmed. The balance of the stay of execution granted in the district court will permit Coson to purge himself of his contempt or surrender to the marshal as he chooses. The mandate will issue now." }, { "docid": "11650998", "title": "", "text": "to answer all but preliminary questions concerning his name, address and occupation. He was immediately brought before the district court, adjudged in contempt, and imprisoned under 28 U.S.C. § 1826. He remained in jail until November 21, 1974, the date on which the grand jury term expired. Stevens does not now contest the validity of this initial incarceration. On November 5, 1974, several weeks prior to his release, and during the term of the initial grand jury, Stevens received a subpoena to testify before a second grand jury which was to convene on November 26, 1974. He responded by filing a motion to quash the subpoena on the grounds that a grand jury had power only to subpoena witnesses for testimony during the course of its own term and could not order a witness to appear before a grand jury not yet empanelled. The motion was denied. On December 10, 1974, Stevens appeared before the second grand jury. Although reminded that he was testifying under a grant of immunity, he would state only his name and address and indicate that he was not an American citizen. He refused to answer any further questions, claiming First, Fourth and Fifth Amendment privileges, and asserting that the questions asked him were based on information obtained by an “illegal wiretap.” Its patience exhausted, the government again petitioned the district court to rule Stevens in contempt for refusing to testify. In his defense Stevens argued, among other things, that “the questions asked him by the Government before the Grand Jury and which he refused to answer were the. primary product of an unlawful act or were predicated on the results obtained by the exploitation of an unlawful act as defined in ... 18 U.S.C., Section 3504(b).” Specifically, his pleading contended that the questions asked him before the Grand Jury, as presented in open court by the Government were based on an illegal interception of conversations of his which occurred on telephone numbers (305) 866-4870 and 861-8921 and telephone numbers (305) 754 — 1279 and 751-0066. In addition to being an aggrieved party based on the" } ]

[ { "docid": "22759719", "title": "", "text": "the review of the denial of her application for asylum. B. The Immigration Judge Failed to Make Adequate Findings About Whether Tan Is Entitled to Withholding of Removal. To obtain withholding of removal, an applicant must establish that her “life or freedom would be threatened in that country because of [her] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “The alien bears the burden of demonstrating that it is ‘more likely than not’ she will be persecuted or tortured upon being returned to her country.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir.2005) (quoting Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir.2002)). This standard is more stringent than the “well-founded fear of future persecution” required for asylum. Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1324 n. 2 (11th Cir.2001). An applicant for withholding of removal may satisfy her burden of proof in either of two ways. First, an alien may establish “past persecution in [her] country based on a protected ground.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir.2003). If the applicant can show that the persecution was, at least in part, motivated by a protected ground, then the applicant can establish eligibility for withholding of removal. Borja v. INS, 175 F.3d 732, 735-36 (9th Cir.1999) (en banc); see Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir.1994) (stating that persecution “does not mean persecution solely on account of’ a statutorily protected ground); see also Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir.2004) (citing Grava v. INS, 205 F.3d 1177, 1181 n. 3 (9th Cir.2000), with approval for the proposition that “mixed-motive persecution may qualify” as persecution based on a protected ground). If an alien establishes “past persecution,” a rebuttable presumption arises that she has a “well-founded fear of future persecution,” and the burden then shifts to the Department of Homeland Security to show that the conditions in the country have changed or the alien could avoid a future threat through relocation. Mendoza, 327 F.3d at 1287. Second, an" } ]

[ { "docid": "22340859", "title": "", "text": "removal faces a more stringent burden than what is required on a claim for asylum.” Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir.2004). In order to qualify for withholding of removal, the Litis “must establish that there is a clear proba bility that [they] will be subject to persecution if forced to return to [Albania].” Id. To establish a clear probability, the applicant must demonstrate that “it is more likely than not” that he or she will be persecuted upon return. 8 C.F.R. § 1208.16(b)(2). Because the Litis have failed to establish their eligibility for asylum, “it therefore follows that [they] cannot satisfy the more stringent standard for withholding of [removal]” as well. Koliada v. INS, 259 F.3d 482, 489 (6th Cir.2001). Similarly, the Litis petition for review of the BIA’s denial of relief under CAT. “Protection under the Convention exists in the form of withholding of removal to the country of torture.” Ali v. Reno, 237 F.3d 591, 596 (6th Cir.2001). To obtain relief under CAT, the applicant bears the burden of establishing “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Once again, because the Litis failed to establish eligibility for asylum, they also cannot meet the heightened requirements for relief under CAT. Pilica, 388 F.3d at 955; Yu, 364 F.3d at 703 n. 3. Therefore, we conclude that the BIA’s decision denying the Litis’ claims for withholding of removal and relief under CAT was supported by substantial evidence. C. Asylum on Humanitarian Grounds The Litis also petition for review of the IJ’s denial of their request for asylum on humanitarian grounds pursuant to 8 C.F.R. § 1208.13(b)(l)(iii)(A). In the absence of a well-founded fear of future persecution, an alien may still be entitled to a discretionary grant of asylum if he or she “has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.” 8 C.F.R. § -1208.13(b)(l)(iii)(A). In this case, the IJ denied the Litis’ claim under" }, { "docid": "22794777", "title": "", "text": "on a protected ground, it is presumed that his life or freedom would be threatened upon return to his country .... ” Mendoza, 327 F.3d at 1287. The burden then shifts to the government to establish by a preponderance of the evidence either that the country’s conditions have changed, or “that the alien could avoid a future threat to his life or freedom by relocating to another part of the proposed country of removal, and [that] it would be reasonable to expect him to do so.” Id.; see also 8 C.F.R. § 208.16(b)(1)(f). An alien who cannot show past persecution can still qualify for withholding of removal by showing that it is “more likely than not” that she will be persecuted on account of a protected ground. Mendoza, 327 F.3d at 1287; 8 C.F.R. § 208.16(b)(2). “An alien cannot demonstrate that she more-likely-than-not would be persecuted on a protected ground if the IJ finds that the alien could avoid a future threat by relocating to another part of her country.” Tan, 446 F.3d at 1375 (quotation marks and brackets omitted); see also 8 C.F.R. § 208.16(b)(2). Because the “more likely than not” standard is more stringent than the “well-founded fear” standard for asylum, an applicant unable to meet the “well-founded fear” standard is generally precluded from qualifying for either asylum or withholding of removal. Sepulveda, 401 F.3d at 1232-33. Here, the IJ denied Ghisela’s application for withholding of removal based upon his conclusion that she would not have established the less stringent standard for asylum had she applied on time. (Id. at 51-53.) The BIA affirmed the IJ’s decision in a brief per curiam opinion. Because we vacate the denial of Montoya’s asylum application, having found that this record compels the conclusion that he was persecuted on account of political opinion, we must also vacate the denial of Ghisela’s application for withholding of removal. Neither the IJ nor the BIA had occasion to consider her application for withholding of removal independently, and, as we have already explained, the appropriate course of action is to remand the. case to allow the" }, { "docid": "19944068", "title": "", "text": "CAT claim was waived before the BIA and cannot be revived in this court. See Olujoke v. Gonzales, 411 F.3d 16, 22-23 (1st Cir.2005) (“The petitioner failed to make any developed argumentation in support of [her CAT claim] before the BIA. Thus, the doctrine of exhaustion of administrative remedies bans any attempt on her part to resurrect the issue here.”); Da Silva, 394 F.3d at 4 n. 3 (noting that where a petitioner did not present a claim to the BIA when appealing an IJ’s decision, the claim is abandoned and is not susceptible to subsequent judicial review). The petition for review is denied. . MOCHRENA is an abbreviation for the Christian National Movement. The Lavalas party supported the Aristide government that was in power at the time. . An asylum applicant must show a \"well-founded fear of future persecution” to be eligible for relief. 8 U.S.C: § 1101(a)(42)(A). The standards for withholding of removal or protection under the Convention Against Torture (\"CAT”) are higher: an alien must show that it is more likely than not that he would suffer persecution or torture upon returning home. See 8 U.S.C. § 1231(b)(3)(A) (withholding of removal); 8 C.F.R. § 208.16(c)(2)(CAT). Therefore, if an alien cannot satisfy the standard for asylum eligibility, he will also be unable to demonstrate eligibility for these other forms of relief. See, e.g., Palma-Mazariegos v. Gonzales, 428 F.3d 30, 37 (1st Cir.2005) (explaining that failure to satisfy the asylum standard results in failure to satisfy the withholding of removal standard)." }, { "docid": "22784586", "title": "", "text": "of removal. III. Conclusion Based on the foregoing, we DISMISS the petition in part as to the asylum claim, we GRANT the petition in part as to Delgado’s and Ramon’s withholding claims, and we DENY Carmen’s claim for derivative benefits. The BIA’s decision is VACATED and REMANDED for further proceedings consistent with this opinion. . The Delgados initially requested relief under the United Nations Convention Against Torture (\"CAT”). The IJ and BIA denied relief, and the Delgados do not challenge this decision. Therefore, they have abandoned the issue and we do not discuss it further. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 (11th Cir.2005). . The Real ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231. . This panel is bound by this decision unless it is overruled by the U.S. Supreme Court or this court sitting en banc. Smith v. GTE Corp., 236 F.3d 1292, 1300 n. 8, 1302-03 (11th Cir.2001). . Where the Delgados experienced past persecution, there is a rebuttable presumption of future persecution, and the burden shifts to the government to show both that (1) relocation is possible within Venezuela, and (2) it is reasonable to expect the Delgados to relocate. See Arboleda v. U.S. Att’y Gen., 434 F.3d 1220, 1223-24 (11th Cir.2006). Regarding the government’s contention that, because Chavez has been elected, there no longer would be any threats to the Delgados, the Country Report states that there have been at least a dozen politically motivated killings after Chavez’s election. . The IJ explicitly found that Delgado's claims of threats to his attorney in 2003 were not credible and the Delgados do not specifically challenge this finding on appeal. Because the Delgados did not raise the issue before the BIA, they have not exhausted it. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n. 13 (11th Cir.2001). Notably, the IJ found the remainder of Delgado's testimony regarding the other incidents credible. Thus, we consider those events about which Delgado testified credibly. .Unlike the facts in Silva, in this case, the attackers made statements showing" }, { "docid": "22052515", "title": "", "text": "I. A. Under the Immigration and Nationality Act (“INA”), the Attorney General is vested with the discretion to grant asylum to aliens who qualify as “refugees.” See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A); INS v. Ventura, 537 U.S. 12, 13, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). The INA defines “refugee” as someone “who is unable or unwilling to return to” his native country “because of persecution or a well-founded fear of persecution on account of ... political opinion” or other protected grounds. 8 U.S.C. § 1101(42)(A). An asylum applicant “may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution.” 8 C.F.R. § 1208.13(b). The burden of proof with respect to refugee status rests with the applicant. See 8 C.F.R. § 208.13(a); Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353 (4th Cir.2006). The applicant’s burden is even greater to qualify for withholding of removal to a particular country under the INA, which requires the alien to demonstrate a “clear probability of persecution” on account of a protected ground. INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) (internal quotation marks omitted). The payoff in return for the more stringent qualification standard is that withholding of removal is not a discretionary form of relief; it is mandatory. See 8 U.S.C. § 1231(b)(3)(A); INS v. Aguirre-Aguirre, 526 U.S. 415, 420, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). Finally, an alien seeking protection under the CAT must show “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). The likelihood of torture, however, need not be tied to a protected ground under the CAT. See Yang v. Gonzales, 478 F.3d 133, 141 (2nd Cir.2007). “Withholding and deferral of removal under the CAT are mandatory forms of relief that hinge on risk within the country to which the Government is seeking expulsion. Instead of focusing on persecution and nexus to protected grounds, CAT relief requires the applicant" }, { "docid": "22093883", "title": "", "text": "call in which he refused to join the FARC, the caller stated that “if [Rodriguez] was not with them he was against them,” which showed that his persecution was “wholly political.” Id. He next ar-gües that he was entitled to withholding of removal, asserting that the evidence that he presented, including the Country Report, established that it was “more likely than not” that he would be persecuted upon his return to Colombia. Id. at 20. Finally, he argues that he should have been granted CAT relief, asserting that he suffered psychological torture, and the Colombian government acquiesced to his torture in that they were “passively] compliant]” with it. Id. at 21-22. When, as here, the BIA issues its own opinion, we review only the decision of the BIA, except to the extent the BIA expressly adopts the IJ’s decision. See Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir.2004). In reviewing the BIA’s finding that an alien has not established persecution on the basis of a protected ground, our review is limited to whether the BIA’s decision was “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, 815, 117 L.Ed.2d 38 (1992) (internal quotation and citation omitted). “To reverse the [BIA’s] fact findings, [this Court] must find that the record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir.2003). Only in a “rare case” does the record compel the conclusion that an alien has suffered past persecution or a well-founded fear of future persecution. Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1239 (11th Cir.2006). To establish asylum eligibility based on political opinion, the alien carries the burden to prove, with credible evidence, either that (1) he suffered past persecution on account of his political opinion, or (2) he has a “well-founded fear” that his political opinion will cause him to be persecuted. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230-31 (11th Cir.2005) (per curiam) (citation omitted). “The asylum applicant must establish eligibility" }, { "docid": "23026165", "title": "", "text": "to find otherwise.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir.2005) (citations omitted); see also D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir.2004) (noting “[c]redibility determinations are likewise reviewed under the substantial evidence test”). An alien seeking withholding of removal under the INA must show that his “life or freedom would be threatened ... because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion” if he returned to the country in question. 8 U.S.C. § 1231(b)(3)(A). To do so, he must demonstrate that “he more-likely-than-not would be persecuted or tortured upon his return to the country.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). If an alien establishes past persecution in his country based on a protected ground, it is presumed that his life or freedom would be threatened upon return to his country unless the government shows by a preponderance of the evidence that (1) the country’s conditions have changed so that the applicant’s life or freedom would no longer be threatened upon his removal; or (2) the alien could avoid a future threat to his life or freedom by relocating to another part of his country and it would be reasonable to expect him to do so. See 8 C.F.R. § 208.16(b)(1)(i); Mendoza, 327 F.3d at 1287. If an alien’s testimony is credible, it may be sufficient, without corroboration, to satisfy his burden of proof in establishing his eligibility for relief from removal. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.2005); 8 C.F.R. §§ 208.13(a), 208.16(b). A denial of asylum relief, however, can be supported solely by an adverse credibility determination, especially if the alien fails to produce corroborating evidence. Forgue, 401 F.3d at 1287. If the court explicitly determines that the alien lacks credibility, the court must offer specific, cogent reasons for the finding. Id. The burden then shifts to the alien to show that the credibility decision was not supported by “specific, cogent reasons” or was not based on substantial evidence. Id. In the REAL ID Act" }, { "docid": "23048481", "title": "", "text": "fear of future persecution stems solely from his wife’s abortion and sterilization, and payment of the fine. Yu does not argue that he will face future persecution by being forced to undergo sterilization himself, or for refusing to undergo such a procedure or otherwise resisting China’s family planning policy. Yu has thus also failed to establish a well-founded fear of future persecution. See Matter of J-S-, 24 I. & N. Dec. at 537-38. Accordingly, we affirm the BIA’s decision that Yu is ineligible for asylum under § 1101(a)(42). Since Yu does not qualify for asylum, he necessarily fails to satisfy the more stringent standard of proof for withholding of removal. See Lin, 555 F.3d at 1317. III. CONCLUSION Pursuant to the statute’s plain language, we conclude that § 1101(a)(42)(B) does not grant automatic refugee status to a spouse based solely on the other spouse’s forced abortion or sterilization. The BIA correctly evaluated Yu’s claims under Matter of J-S- to determine that Yu did not personally suffer past persecution or have a well-founded fear of future persecution on account of his wife’s forced abortion and sterilization. Because the record does not compel a contrary finding, we DENY the petition. PETITION DENIED. . Apart from a general reference to the BIA’s decision in the statement of jurisdiction, Yu does not argue that the BIA erred in denying CAT relief. Yu has therefore abandoned this claim. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005) (per curiam) (\"When an appellant fails to offer argument on an issue, that issue is abandoned.”). . Many circuits followed the BIA’s interpretation in C-Y-Z-. See, e.g., Lin-Jian v. Gonzales, 489 F.3d 182, 188 (4th Cir.2007); Chen v. Gonzales, 457 F.3d 670, 674 (7th Cir.2006); Hong Zhang Cao v. Gonzales, 442 F.3d 657, 660 (8th Cir.2006); Tai v. Gonzales, 423 F.3d 1, 4 (1st Cir.2005); Zhang v. Ashcroft, 395 F.3d 531, 532 (5th Cir.2004); He v. Ashcroft, 328 F.3d 593, 604 (9th Cir.2003). . In Yang v. U.S. Attorney General, 494 F.3d 1311, 1317 (11th Cir.2007) (per curiam), we concluded that the BIA's" }, { "docid": "22949619", "title": "", "text": "here because the BIA’s determination that Huang’s evidence did not amount to “persecution,” and, therefore, did not establish eligibility for asylum, was not unreasonable. Finally, Huang’s brief makes little, if any, argument regarding her eligibility for withholding of removal. To the extent that she argues that she was entitled to withholding of removal, however, Huang had to show that her life or freedom would “more likely than not” be threatened upon return to his country because of, among other things, his political opinion. Mendoza v. U.S. Attorney General, 327 F.3d 1283, 1287 (11th Cir.2003); INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). This standard is more stringent than the “well-founded fear” standard for asylum, and since Huang is unable to meet the well-founded fear standard for asylum, she is unable to qualify for withholding of removal. See, e.g., Al Najjar, 257 F.3d at 1292-93. We, thus, conclude that the BIA’s decision is reviewable, and because the record does not compel a reversal, we deny Huang’s petition. PETITION DENIED. . Providing that: \"[T]he court of appeals shall decide the petition only on the administrative record on which the order of removal is based.” . Huang does not make any argument regarding her eligibility for relief under the CAT and, therefore, the issue is deemed abandoned. Sepulveda v. United States Attorney Gen., 401 F.3d 1226, 1228, n. 2 (11th Cir. 2005). . The date on which a petition is filed is no longer important, as Congress has now directed that all petitions for review will be governed under the permanent provisions of IRI-IRA. See REAL ID Act of 2005, Pub.L. 109-13, 119 Stat 231 (May 11, 2005) (providing that a petition for review \"filed under former section 106(a) of the Immigration and Nationality Act (as in effect before its repeal by section 306(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. § 1252 note)) shall be treated as if it had been filed as a petition for review under section 242 of the Immigration and Nationality Act (8 U.S.C. § 1252).)''" }, { "docid": "22340858", "title": "", "text": "to bolster their claims of a well-founded fear of political persecution. Furthermore, at the removal hearing, the Litis did not provide any reasonable explanation for the absence of any corroborating evidence. Without such evidence, we agree with the BIA that in light of the fundamentally changed conditions in Albania, the Litis failed to satisfy their burden of demonstrating a well-founded fear of future persecution if they were to return. Therefore, we conclude that the BIA’s decision denying the Litis’ asylum claim was supported by substantial evidence. B. Withholding of Removal and Relief under CAT In addition to their asylum claim, the Litis also petition for review of the BIA’s denial of their request for withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). Withholding of removal is required if the alien can demonstrate that “his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 1208.16(b). “An applicant seeking withholding of removal faces a more stringent burden than what is required on a claim for asylum.” Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir.2004). In order to qualify for withholding of removal, the Litis “must establish that there is a clear proba bility that [they] will be subject to persecution if forced to return to [Albania].” Id. To establish a clear probability, the applicant must demonstrate that “it is more likely than not” that he or she will be persecuted upon return. 8 C.F.R. § 1208.16(b)(2). Because the Litis have failed to establish their eligibility for asylum, “it therefore follows that [they] cannot satisfy the more stringent standard for withholding of [removal]” as well. Koliada v. INS, 259 F.3d 482, 489 (6th Cir.2001). Similarly, the Litis petition for review of the BIA’s denial of relief under CAT. “Protection under the Convention exists in the form of withholding of removal to the country of torture.” Ali v. Reno, 237 F.3d 591, 596 (6th Cir.2001). To obtain relief under CAT, the applicant bears the burden of establishing" }, { "docid": "22794778", "title": "", "text": "(quotation marks and brackets omitted); see also 8 C.F.R. § 208.16(b)(2). Because the “more likely than not” standard is more stringent than the “well-founded fear” standard for asylum, an applicant unable to meet the “well-founded fear” standard is generally precluded from qualifying for either asylum or withholding of removal. Sepulveda, 401 F.3d at 1232-33. Here, the IJ denied Ghisela’s application for withholding of removal based upon his conclusion that she would not have established the less stringent standard for asylum had she applied on time. (Id. at 51-53.) The BIA affirmed the IJ’s decision in a brief per curiam opinion. Because we vacate the denial of Montoya’s asylum application, having found that this record compels the conclusion that he was persecuted on account of political opinion, we must also vacate the denial of Ghisela’s application for withholding of removal. Neither the IJ nor the BIA had occasion to consider her application for withholding of removal independently, and, as we have already explained, the appropriate course of action is to remand the. case to allow the IJ to decide the issue in the first instance. See Thomas, 126 S.Ct. at 1615; Ventura, 537 U.S. at 16-17, 123 S.Ct. 353; see, e.g., Lopez v. U.S. Att’y Gen., 490 F.3d 1312, 1316-17, No. 06-12907, slip op. at 8-10 (11th Cir. July 6, 2007) (remanding to allow the IJ and BIA to address issues that they initially had no occasion to reach). Accordingly, we vacate the BIA’s decision and Ghisela’s order of removal and remand for a determination whether Ghisela is entitled to withholding of removal. E. Convention Against Torture To be eligible for relief under the CAT, an applicant must establish “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. §§ 208.16(c)(2). The regulations plainly require that such torture be “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Id. § 208.18(a)(1). Here, it is undisputed that the FARC’s conduct was not by," }, { "docid": "22671356", "title": "", "text": "F.3d at 1289. Thus, the evidence does not compel the finding that Sepulveda has a well-founded fear of future persecution. 3. Incorrect standard Sepulveda contends the IJ applied a heightened standard, thus violating the Supreme Court’s decision in INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). In Cardoza-Fonseca, the Supreme Court held Congress did not intend to restrict eligibility for asylum only to “those who could prove that it is more likely than not that they will be persecuted if deported.” 480 U.S. at 450, 107 S.Ct. at 1222. There is no indication in the record the IJ applied an incorrect standard in adjudicating Sepulveda’s claim. The IJ found Sepulveda’s allegations did not “demonstrate a ‘reasonable’ possibility that she, or together, they would be subject to persecution, or harmed or threatened if returned to Colombia at this time.” Here, the IJ did not apply the “more likely than not” standard disapproved of in Gardozar-Fonseca, instead he applied a “reasonable possibility” standard. B. Withholding of Removal An alien is entitled to withholding of removal under the INA if she can show that her “life or freedom would be threatened in that country because of [her] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The alien bears the burden of demonstrating that it is “more likely than not” she will be persecuted or tortured upon being returned to her country. Fahim v. U.S. Attorney Gen., 278 F.3d 1216, 1218 (11th Cir.2002) (quotation marks and citations omitted). This is a more stringent standard than for asylum. Mazariegos, 241 F.3d at 1324-25 n. 2. “[I]f an applicant is unable to meet the well-founded fear standard for asylum, [s]he is generally precluded from qualifying for either asylum or withholding of deportation.” Id. (quotation marks and citation omitted). Sepulveda failed to establish past persecution or a well-founded fear of persecution on account of political opinion or any other protected ground to support her asylum claim. On this basis, we hold there are no grounds for reversing the IJ’s determination that she cannot establish" }, { "docid": "22794776", "title": "", "text": "of their reach. Because the IJ failed to render a reasoned decision regarding the efficacy of internal relocation and does not appear to have considered the evidence in the record, we cannot meaningfully review the IJ’s determination on that issue. Accordingly, we remand the case to the IJ for further review and to make a determination in the first instance whether relocation is both possible and reasonable. See Ar-boleda, 434 F.3d at 1226. D. Ghisela’s Application for Withholding of Removal To be entitled to withholding of removal, an alien must establish that her “life or freedom would be threatened ... because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “The alien bears the burden of demonstrating that it is ‘more likely than not’ she will be persecuted or tortured upon being returned to her country.” Sepulveda, 401 F.3d at 1232 (quoting Fah-im v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir.2002) (per curiam)). “If the alien establishes past persecution in his country based on a protected ground, it is presumed that his life or freedom would be threatened upon return to his country .... ” Mendoza, 327 F.3d at 1287. The burden then shifts to the government to establish by a preponderance of the evidence either that the country’s conditions have changed, or “that the alien could avoid a future threat to his life or freedom by relocating to another part of the proposed country of removal, and [that] it would be reasonable to expect him to do so.” Id.; see also 8 C.F.R. § 208.16(b)(1)(f). An alien who cannot show past persecution can still qualify for withholding of removal by showing that it is “more likely than not” that she will be persecuted on account of a protected ground. Mendoza, 327 F.3d at 1287; 8 C.F.R. § 208.16(b)(2). “An alien cannot demonstrate that she more-likely-than-not would be persecuted on a protected ground if the IJ finds that the alien could avoid a future threat by relocating to another part of her country.” Tan, 446 F.3d at 1375" }, { "docid": "18958174", "title": "", "text": "show “changed country conditions arising in the country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(f). The BIA may deny a motion to reopen because: (1) the alien failed to establish a prima facie cáse; (2) the alien failed to introduce evidence that was material and previously unavailable; or (3) the BIA determined that, despite the alien’s statutory eligibility for relief, he is not entitled to a favorable exercise of discretion. Al Najjar, 257 F.3d at 1302. An alien seeking to reopen proceedings bears a “heavy burden” to show that the new evidence would likely change the outcome of the case. Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir.2006). To qualify for asylum or withholding of removal, an applicant must establish that he has a well-founded fear of future persecution if removed to his home country on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1), and 1231(b)(3). A person who has a well-founded fear that he will be forcibly sterilized or subjected to persecution for his refusal to undergo such a procedure is deemed to have a well-founded fear of persecution on account of his political opinion. Id. § 1101(a)(42)(B). To establish pnma facie eligibility for CAT relief, the petitioner must show that it is more likely than not he would be tortured if removed to the designated country of removal. 8 C.F.R. § 1208.16(c)(2). As to its review of a case, the BIA is not required' to discuss in its opinion every piece of evidence presented. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir.2006). Where the BIA has given reasoned ' consideration to the petition, and made adequate findings, we will not require that it address specifically each claim the petitioner made or each piece of evidence the petitioner presented. See id. Rather, the BIA must “consider the issues raised and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” See id. Although- Petitioner argues that" }, { "docid": "22786317", "title": "", "text": "possibility that he will suffer persecution if removed to his native country; and (3) he is unable or unwilling to return to his native country because he fears persecution. 8 C.F.R. § 208.13(b)(2)(i). To establish a “well-founded fear,” Zheng must demonstrate that his fear is both subjectively genuine and objectively reasonable. Ruiz, 440 F.3d at 1257. Zheng argues the IJ failed to consider the evidence within the context of the Chinese government’s overall persecution of Falun Gong practitioners. We disagree. The IJ considered the 2002 Country Report, which detailed the Chinese government’s efforts to repress Falun Gong. But the Report also states that Falun Gong followers were generally released from detention and that the harshest punishments were reserved for core leaders of the movement. Zheng conceded he is not a Falun Gong leader. The evidence further indicates that Zheng was able to relocate to his parents’ rural village and to live there for three years without being detained again or physically harmed despite that he admits he continues to practice Falun Gong. We therefore conclude that Zheng has not carried his burden to show a reasonable possibility of future persecution upon his return to China. Because we conclude that Zheng has not satisfied the less stringent standard for asylum, we also deny his petition for review of his claims for withholding of removal under the INA and for CAT relief. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1288 n. 4 (11th Cir.2005) (noting that where petitioner fails to establish claim of asylum on merits, his claims for withholding of removal and CAT relief necessarily fail); Al Najjar, 257 F.3d at 1292-93, 1303 (same). TV. Conclusion Involvement with Falun Gong in China by itself does not entitle a person to asylum in the United States. We conclude that the IJ’s decision is supported by substantial evidence and deny Zheng’s petition. PETITION DENIED. . Zheng also asserts that he qualifies for a stay of removal because he has a probability of success on the merits for his underlying claim, and the likelihood of harm and hardship if he is removed" }, { "docid": "22138279", "title": "", "text": "this issue. In summary, applying a deferential standard of review, we find substantial evidence supports the IJ’s conclusion that Kibinda had not established past persecution and did not have an objectively well founded fear of persecution. He is therefore not statutorily eligible for asylum. As Kibinda has failed to establish a well-founded fear of persecution, he has failed to meet the higher standard of demonstrating a “clear probability” of persecution and thus is also not eligible for withholding of removal. Balazoski v. INS, 932 F.2d 638, 640 (7th Cir.1991). B. The Convention Against Torture Kibinda’s final claim is that he is eligible for withholding of removal under the CAT. An applicant seeking relief under the CAT must establish “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir.2002) (quoting 8 C.F.R. § 208.16(c)(2)). Although the standard for establishing a CAT claim is more stringent than the asylum standard, it does not follow that a failure to meet the asylum standard necessarily precludes a CAT claim. See Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 358 (3d Cir.2006) (finding IJ committed legal error in holding that failure to meet the evidentiary burden for asylum precluded relief under the CAT); Amanfi v. Ashcroft, 328 F.3d 719, 725 (3d Cir.2003) (“A petition for protection under the Convention Against Torture differs significantly from petitions for asylum or withholding of removal because the alien need not demonstrate that he will be tortured on account of a particular belief or immutable characteristic.”). However, the IJ in this case did not conclude that Kibinda was ineligible for CAT relief simply because he had failed to meet his asylum burden of proof. Rather, the IJ stated that “Making this [asylum] analysis into account, but also reviewing all of the credible source materials in the record, the Court does not find it more likely than not that respondent would be tortured....” In assessing the risk of torture, the IJ was required to consider “all evidence relevant to the possibility" }, { "docid": "22090193", "title": "", "text": "credible evidence’ ” in support of her asylum application, Sanchez Jimenez, 492 F.3d at 1232 (quoting Scheerer v. U.S. Att’y Gen., 445 F.3d 1311, 1315 (11th Cir.2006)), but “[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 208.13. 1. Past Persecution Asylum To establish asylum based on past persecution, the applicant must prove (1) that she was persecuted, and (2) that the persecution was on account of a protected ground. 8 C.F.R. § 208.13(b)(1); Sanchez Jimenez, 492 F.3d at 1232. “[I]t is by now well-established in our case law that an applicant can establish eligibility for asylum as long as he can show that the persecution is, ‘at least in part, motivated by a protected ground.’ ” Sanchez Jimenez, 492 F.3d at 1232 (quoting Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821 (11th Cir.2007)) (emphasis removed). In addition to providing an independent avenue for asylum eligibility, a showing of past persecution creates a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1); Sanchez Jimenez, 492 F.3d at 1232 (citing Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir.2005) (per curiam)). The applicant’s presumptively well-founded fear of future persecution may be rebutted by the government if the government shows, by a preponderance of the evidence, either: (1) that conditions in the country have changed, or (2) that the applicant could avoid future persecution by relocating within the country if, “under all the circumstances, it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 208.13(b)(1)®; Arboleda v. U.S. Att’y Gen., 434 F.3d 1220, 1223 (11th Cir.2006) (per curiam). 2. Futwre Persecution Asylum If the applicant fails to demonstrate past persecution, an applicant may still establish asylum based upon proof of a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(2). The applicant may prove eligibility by demonstrating (1) a subjectively genuine and objectively reasonable fear of persecution that is (2) on account of a protected ground. 8 C.F.R. § 208.13(b)(2)®; Sanchez Jimenez, 492 F.3d at 1232. “ ‘The subjective" }, { "docid": "22786318", "title": "", "text": "that Zheng has not carried his burden to show a reasonable possibility of future persecution upon his return to China. Because we conclude that Zheng has not satisfied the less stringent standard for asylum, we also deny his petition for review of his claims for withholding of removal under the INA and for CAT relief. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1288 n. 4 (11th Cir.2005) (noting that where petitioner fails to establish claim of asylum on merits, his claims for withholding of removal and CAT relief necessarily fail); Al Najjar, 257 F.3d at 1292-93, 1303 (same). TV. Conclusion Involvement with Falun Gong in China by itself does not entitle a person to asylum in the United States. We conclude that the IJ’s decision is supported by substantial evidence and deny Zheng’s petition. PETITION DENIED. . Zheng also asserts that he qualifies for a stay of removal because he has a probability of success on the merits for his underlying claim, and the likelihood of harm and hardship if he is removed to China is high.- We previously denied his “Motion for a Stay of Deportation,” which we construed as a motion for stay of removal pending disposition of the appeal. . The IJ noted specifically in his decision that \"although [Zheng] lost his job, he’s presented no evidence that he was not able to obtain other type [sic] of work or perhaps aid his parents with whatever they were doing to make a living or to farm.” . Zheng cannot have a well-founded fear of persecution if he could avoid persecution by relocating to another part of China, if under all the circumstances it would be reasonable to expect him to do so. 8 C.F.R. § 208.13(b)(2)(h). Because we conclude that Zheng has not established a reasonable possibility of suffering future persecution, we need not decide whether relocation is reasonable. That Zheng successfully avoided persecution for three years in his parents’ village is evidence indicating there is not a reasonable possibility Zheng will suffer future persecution upon his return to China." }, { "docid": "22671357", "title": "", "text": "withholding of removal under the INA if she can show that her “life or freedom would be threatened in that country because of [her] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The alien bears the burden of demonstrating that it is “more likely than not” she will be persecuted or tortured upon being returned to her country. Fahim v. U.S. Attorney Gen., 278 F.3d 1216, 1218 (11th Cir.2002) (quotation marks and citations omitted). This is a more stringent standard than for asylum. Mazariegos, 241 F.3d at 1324-25 n. 2. “[I]f an applicant is unable to meet the well-founded fear standard for asylum, [s]he is generally precluded from qualifying for either asylum or withholding of deportation.” Id. (quotation marks and citation omitted). Sepulveda failed to establish past persecution or a well-founded fear of persecution on account of political opinion or any other protected ground to support her asylum claim. On this basis, we hold there are no grounds for reversing the IJ’s determination that she cannot establish entitlement to withholding of removal under the INA. IV. CONCLUSION Under our highly deferential standard of review, we hold the IJ’s decision denying asylum and withholding of removal is supported by substantial evidence; the evidence does not compel an opposite conclusion. PETITION DENIED. . The INS is now part of the Department of Homeland Security. For convenience, we refer to the Department as the INS. . Sepulveda does not raise any challenge in her brief to the denial of relief under the Convention Against Torture (CAT). When an appellant fails to offer argument on an issue, that issue is abandoned. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir.1998); see also Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989) (stating that passing references to issues are insufficient to raise a claim for appeal, and such issues are deemed abandoned). .The National Liberation Army, or ELN, is one of Colombia’s two major guerilla groups. . The State Department’s 1999 Country Report on Human Rights Practices for Colombia described" }, { "docid": "19803794", "title": "", "text": "2002 letter from her parents stating that the current safety situation in Imelda’s home province was getting worse after the arrival of terrorists, that a bomb was found in a church, that her parents’ church had received bomb threats, and that a pastor from Imelda’s home town had disappeared. Imelda also submitted newspaper articles reporting the 2005 attacks in Bali by Muslim suicide bombers. Other articles recounted the forceful closing of a number of churches by Muslim groups. Finally, articles from 2001 and 2002 reported that on the islands of Maluku and Sulawesi in eastern Indonesia, there was ongoing fighting between Christians and Muslims, exacerbated in 2000 by the arrival of Laskar Jihad, a radical Islamic militia. After the hearing, the IJ denied Imelda’s claims for asylum, withholding of removal, and CAT relief. Because Imelda did not raise her claims for asylum and CAT relief in her appellate brief, those issues are deemed abandoned, and we review only her withholding of removal claim. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005) (per curiam). As to the withholding of removal claim, the IJ found that Imelda had established neither past persecution nor that it would be more likely than not that she would suffer a future threat to her life or freedom on account of her religion or race. The IJ found that the events of which Imelda complained did not “rise to the level of persecution.” A.R. 30. The BIA’s decision assumed past persecution and stated that even if Imelda “had established past persecution, ... [it] would find that the presumption of future persecution is rebutted” because of a “fundamental change in circumstances.” Id. at 3. On appeal, Imelda challenges the BIA’s determination that there has been a fundamental change in country conditions sufficient to rebut her presumption that her life or freedom would be threatened upon return to Indonesia based on her religion and race. Imelda argues that the BIA erred in relying on the Country Report alone in making its determination, that it did not make an individualized finding in relation to" } ]

[ { "docid": "18946288", "title": "", "text": "Halo Elecs., Inc. v. Pulse Elecs., Inc., 769 F.3d 1371, 1377 (Fed.Cir.2014). Applying the law of the Third Circuit, we review the grant of summary judgment de novo. Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en banc). Summary judgment is proper when, drawing all justifiable infer- enees in the non-movant’s favor, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Evaluation of summary judgment of noninfringement is a two-part inquiry: construing the claims and comparing the properly construed claims to the accused product. Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed.Cir.2009). We review de novo the ultimate interpretation of a claim term and the evidence intrinsic to the patent. Teva Pharm. USA, Inc. v. Sandoz, Inc., 574 U.S. -, 135 S.Ct. 831, 841, — L.Ed.3d - (2015). When a district court makes factual findings about extrinsic evidence, we review those subsidiary factual findings for clear error. Id. at 835, 841. Infringement, whether literal or under the doctrine of equivalents, is a question of fact. Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1129-30 (Fed.Cir.2011). As such, it is amenable to summary judgment when no reasonable factfinder could find that the accused product contains every claim limitation or its equivalent. PC Connector Sols., LLC v. SmartDisk Corp., 406 F.3d 1359, 1364 (Fed.Cir.2005); see Wamer-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 39 n. 8, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). A. Claim Construction On appeal, Akzo first faults the district court for narrowly construing “pressurized collection vessel” to require accumulation. Akzo argues that the term should instead assume its ordinary meaning of “gather or receive.” Akzo contends that such a construction is supported by both the claim language and specification, neither of which requires the dispersion to be held for a period of time. According to Akzo, the court’s construction imports further, unspecified process limitations on how long the" } ]

[ { "docid": "17490901", "title": "", "text": "F.3d 1357, 1367 (Fed.Cir.2003) (emphasis in original). If there is doubt regarding the meaning of the claim terms, however, “consideration of extrinsic evidence may be necessary to determine the proper construction.” Vitronics, 90 F.3d at 1583. If after examination of extrinsic evidence the claim remains ambiguous and susceptible to different meanings, the court will gener ally accept the narrower definition. Id. at 1582. “The second step of the infringement analysis is comparing the properly construed claims with the allegedly infringing devices.” Apex Inc. v. Raritan Computer, Inc., 325 F.3d 1364, 1377 (Fed. Cir.2003). “Infringement, whether literal or under the doctrine of equivalents is a question of fact.” Linear Tech. Corp. v. Impala Linear Corp., 379 F.3d 1311, 1318 (Fed.Cir.2004) (citation omitted); see also Nystrom v. Trex, 374 F.3d 1105, 1110 (Fed. Cir.2004). The patentee prevails on a claim of patent infringement if he establishes that “the accused device meets each claim limitation, either literally or under the doctrine of equivalents.” Deering Precision Instruments, L.L. C. v. Vector, 347 F.3d 1314, 1324 (Fed.Cir.2003). Literal infringement of a claim in a patent exists “when each of the claim limitations reads on, or in other words is found in, the accused device.” Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1345 (Fed.Cir.2002) (internal quotation marks and citation omitted); see also TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1372 (Fed.Cir.2002) (“To establish literal infringement, all elements of the claim, as correctly construed, must be present in the accused system.”) (citation omitted). A device that does not literally infringe may, however, still infringe under the doctrine of equivalents if it (1) performs substantially the same function, (2) in substantially the same way, and (3) achieves substantially the same result as the allegedly infringed claim. Graver Tank & Mfg. Co., Inc. v. Linde Air Prod. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950); Pennwalt Corp. v. Durand-Wayland, 833 F.2d 931, 934-35 (Fed.Cir.1987). Under the “all elements” rule, a patent claim is not infringed unless every element mentioned in the claim, or its equivalent, is combined in substantially the same" }, { "docid": "19157264", "title": "", "text": "Claim 2, of the '614 patent is dependent on Claim 1 of the '614 patent and adds the limitation that the terminus comprises a vehicle. TDM incorporates its discussion of the similar Claim 4 of the '862 patent in addressing infringement of Claim 4 of the '614 patent. Discussion A. Standards for Summary Judgment of Infringement In this case, no genuine issue of material fact exists and therefore summary judgment may be granted. The Rules of this Court provide that a motion for summary judgment should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” RCFC 56(c). Patent infringement issues are questions of fact but summary judgment of non-infringement nonetheless is proper when the moving party shows that “on the correct claim construction, no reasonable jury could have found infringement on the undisputed facts or when all reasonable factual inferences are drawn in favor of the patentee.” TechSearch, LLC v. Intel Corp., 286 F.3d 1360, 1371 (Fed.Cir.2002); see also, Bus. Objects, S.A. v. Microstrategy, Inc., 393 F.3d 1366, 1371-72 (Fed.Cir.2005). To establish infringement, the plaintiff must prove by a preponderance of the evidence that every limitation set forth in a patent claim is found in the accused product or process either literally or by a substantial equivalent. Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535 (Fed.Cir.1991) (emphasis added). This standard is known as the “all elements” rule. See Warner-Jenkinson, 520 U.S at 29, 117 S.Ct. 1040. The Court must compare the construed claim to the accused device or process to determine whether all of the claim limitations are present either literally or by a substantial equivalent. Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1247-48 (Fed.Cir.1998). Failure to meet even a single element within a claim precludes a finding of literal infringement. Laitram Corp., 939 F.2d at 1535. 1. Literal Infringement Generally, a claim is literally infringed if each properly construed claim element reads on the" }, { "docid": "8970309", "title": "", "text": "to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). IV. DISCUSSION Based on the record before me, I conclude that, with the limited exception noted hereafter, there are genuine issues of material fact that prevent the entry of summary judgment. A. Defendant’s Motion for Summary Judgment of Nonr-Infringement With regard to this motion, there is a material issue of fact regarding Defendants’ infringement of the “control trading” limitation; however, Plaintiffs are barred from asserting the doctrine of equivalents as to this limitation, due to prosecution history estoppel. 1. Literal Infringement In a patent infringement analysis, application of the claim to the accused process or product is a question of fact. Kustom Signals, Inc. v. Applied Concepts, Inc., 264 F.3d 1326, 1332 (Fed.Cir.2001). Summary judgment in patent suits is appropriate when it is apparent that only one conclusion regarding infringement could be reached by a reasonable jury. Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1323 (Fed.Cir.2001). Literal infringement is found only when each and every limitation of a claim is present in the accused product. Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1323 (Fed.Cir.2001). Defendants admit that their system infringes the first two contested claims, as I have construed them, namely “system state” and “bid/offer system state.” (See D.I. 496 at 6; eSpeed II, 2004 U.S. Dist. LEXIS 13486 at *26-*27.) Defendants contend, however, that their system “does not, by deliberate design, provide the end results described in the asserted ’580 patent claims, namely, a period of exclusivity during which participants can 'control trading by transacting additional volume,’ as recited in representative claim 20 .... ” (D.I. 482 at 19.) I have construed the term “control trading” to mean “to exercise authority to hold up a trade for as long as a participant continues to respond to its contra-party’s size offering.” (D.I. 516 at" }, { "docid": "8264133", "title": "", "text": "evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must view the facts and reasonable inferences drawn therefrom “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam)). The opposing party, however, must produce evidence upon which a reasonable fact finder could rely. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. A mere “scintilla” of evidence is insufficient to preclude summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. B. Patent Infringement Analysis Patents are composed of two parts. The specification describes the invention and the manner and process of using it. 35 U.S.C. § 112. The claims define the scope of the invention and state which parts of the invention the patentee is entitled the right to exclude. 35 U.S.C. § 112; Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir.2005) (en banc). Infringement analysis entails two steps. The first step requires “claim construction,” a determination of the “meaning and scope” of the patent claims alleged to be infringed. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir.1995) (en banc). Claim construction is a question of law. Id. at 978. The second step requires comparing the “properly construed claims to the device accused of infringing.” Id. This is a question of fact. To find infringement, every element of the patent must be infringed, either literally or under the doctrine of equivalents. See Leggett & Platt, Inc. v. Hickory Springs Mfg. Co., 285 F.3d 1353, 1358 (Fed.Cir.2002); Warner-Jenkinson Co., Inc. v. Hilton Davis Chemical Co., 520 U.S. 17, 25, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). “A claim element is equivalently present in an accused devices if only insubstantial differences distinguish the missing claim element from the corresponding aspects of the accused device.”" }, { "docid": "1666253", "title": "", "text": "Digital Biometrics, Inc. v, Identix, Inc., 149 F.3d 1335, 1343-44 (Fed.Cir.1998); C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 861 (Fed.Cir.2004) (stating that “[a] long line of cases indicates that the intrinsic record is the primary source for determining claim meaning”). “When an analysis of intrinsic evidence resolves any ambiguity in a disputed claim term, it is improper to rely on extrinsic evidence to contradict the meaning so ascertained.” Intel Corp. v. VIA Techs., Inc., 319 F.3d 1357, 1367 (Fed.Cir.2003) (emphasis in original) (citing Vitronics Corp., 90 F.3d at 1583). If there is doubt regarding the meaning of the claim terms, however, “consideration of extrinsic evidence may be necessary to determine the proper construction.” Vitronics, 90 F.3d at 1583. If after examination of extrinsic evidence the claim remains ambiguous and susceptible to different meanings, the court will generally accept the narrower definition. Id. at 1582. “The second step of the infringement analysis is comparing the properly construed claims with the allegedly infringing devices.” Apex Inc. v. Raritan Computer, Inc., 325 F.3d 1364, 1377 (Fed.Cir.2003) (citing Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448, 1467 (Fed.Cir.1998)). “Infringement, whether literal or under the doctrine of equivalents, is a question of fact.” Linear Tech. Corp. v. Impala Linear Corp., 379 F.3d 1311, 1318 (Fed.Cir.2004) (citation omitted); see also Nystrom v. Trex, 374 F.3d 1105, 1110 (Fed.Cir.2004). The patentee prevails on a claim of patent infringement if he establishes that “the accused device meets each claim limitation, either literally or under the doctrine of equivalents.” Deering Pre cision Instruments, L.L.C. v. Vector, 347 F.3d 1314, 1324 (Fed.Cir.2003). Literal infringement of a claim in a patent exists “when each of the claim limitations reads on, or in other words is found in, the accused device.” Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1345 (Fed.Cir.2002) (internal quotation marks and citation omitted); TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1372 (Fed. Cir.2002) (stating that “[t]o establish literal infringement, all of the elements of the claim, as correctly construed, must be present in the accused system”) (citation omitted). A device that" }, { "docid": "1666254", "title": "", "text": "(Fed.Cir.2003) (citing Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448, 1467 (Fed.Cir.1998)). “Infringement, whether literal or under the doctrine of equivalents, is a question of fact.” Linear Tech. Corp. v. Impala Linear Corp., 379 F.3d 1311, 1318 (Fed.Cir.2004) (citation omitted); see also Nystrom v. Trex, 374 F.3d 1105, 1110 (Fed.Cir.2004). The patentee prevails on a claim of patent infringement if he establishes that “the accused device meets each claim limitation, either literally or under the doctrine of equivalents.” Deering Pre cision Instruments, L.L.C. v. Vector, 347 F.3d 1314, 1324 (Fed.Cir.2003). Literal infringement of a claim in a patent exists “when each of the claim limitations reads on, or in other words is found in, the accused device.” Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1345 (Fed.Cir.2002) (internal quotation marks and citation omitted); TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1372 (Fed. Cir.2002) (stating that “[t]o establish literal infringement, all of the elements of the claim, as correctly construed, must be present in the accused system”) (citation omitted). A device that does not literally infringe may, however, still infringe under the doctrine of equivalents if it (1) performs substantially the same function, (2) in substantially the same way, and (3) achieves substantially the same result as the allegedly infringed claim. Graver Tank & Mfg. Co. Inc. v. Linde Air Prod. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950); Pennwalt Corp. v. Durand-Wayland, 833 F.2d 931, 934-35 (Fed.Cir.1987) (citing Perkin-Elmer Corp. Computervision Corp., 732 F.2d 888, 901-02 (Fed.Cir.1984)). Under the “all elements” rule, a patent claim is not infringed unless every element mentioned in the claim, or its equivalent, is combined in substantially the same way to produce a result of substantially the same nature. Getty v. Kinzbach Tool Co., 119 F.2d 249, 250 (5th Cir.1941); Etten v. Kauffman, 121 F.2d 137, 139-40 (3rd Cir.1941). Thus, “[u]nder the ‘all elements’ rule, there can be no infringement under the doctrine of equivalents if even one limitation of a claim or its equivalent is not present in the accused device or method.” RF Delaware, Inc." }, { "docid": "3347223", "title": "", "text": "also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “On summary judgment, the evidence must be viewed in the light most favorable to the party opposing the motion, with doubts resolved in favor of the nonmovant.” Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367, 1375 (Fed.Cir.2002) (citations omitted). Determining infringement is a two-step process. First, the court determines the scope and meaning of the asserted claim. Then, the court compares the properly construed claims with the accused device or product to reach a finding regarding infringement. Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 988 (Fed.Cir.1999). This court reviews the first determination without deference. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998). In the context of summary judgment, this court reviews the second determination for genuine disputes of material facts that would preclude a grant of summary judgment. Hilgraeve Corp. v. McAfee Assocs., Inc., 224 F.3d 1349, 1352-54 (Fed.Cir.2000). In particular, a trial court cannot reach a conclusive finding of noninfringement if the record shows some evidence supporting a finding of noninfringement and some evidence to the contrary. On appeal, AFG argues two main points. AFG asserts that the district court erred by finding that the multiple adjacent depositions of zinc oxide in Cardinal’s LoE products precluded infringement. AFG also asserts that the district court erred by finding that the deposition of titanium dioxide in some of Cardinal’s LoE products precluded infringement. A. Zinc Oxide The sole claim of the '532 patent recites, among other limitations, a 5-layered transparent coating composed of alternating layers of zinc oxide and silver. This court has already construed the term “layer” in the '532 patent to mean “a thickness of material of substantially uniform chemical composition, but excluding interlayers having a thickness not to substantially affect the optical properties of the coating.” AFG Indus., 239 F.3d at 1250. Moreover, the '532 claim does not recite a limitation on the thickness of the zinc oxide layers, unlike the silver layers, which must have a thickness ranging from 60 to 250. That" }, { "docid": "15020891", "title": "", "text": "the moving party establishes the absence of genuine issues of material fact, the burden shifts to the nonmoving party to set forth facts showing that a genuine issue of disputed fact remains. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The nonmoving party cannot oppose a properly supported summary judgment motion by “rest[ing] on mere allegations or denials of his pleadings.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. When ruling on a summary judgment motion, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Court does not make credibility determinations with respect to evidence offered. See T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.1987) (citing Matsushita, 475 U.S. at 587, 106 S.Ct. 1348). Summary judgment is therefore not appropriate “where contradictory inferences may reasonably be drawn from undisputed evidentiary facts.” Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1335 (9th Cir.1980). II. Patent Infringement Standards A. Design Patents A determination of design patent infringement involves a two step analysis. First, the claim must be properly construed to determine its meaning and scope. Secondly, the properly construed claim must be compared to the accused design to determine whether there has been infringement. Elmer v. ICC Fabricating, Inc., 67 F.3d 1571, 1577 (Fed.Cir.1995). Regarding the first step, “the scope of the claim must be construed in order to identify the non-functional \\i.e., ornamental] aspects of the design as shown in the patent” when the design contains both functional and non-functional elements. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 680 (Fed.Cir.2008) (quoting OddzOn Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396, 1405 (Fed.Cir.1997)). The second step requires that the patentee establish that an ordinary observer, familiar with the prior art designs, would be deceived into believing the accused product is the same as the patented product. Egyptian Goddess, 543 F.3d at 672; Richardson v. Stanley Works, Inc., 597 F.3d 1288," }, { "docid": "23595818", "title": "", "text": "support.” Id. This court similarly dismissed Moore’s claim of infringement under the doctrine of equivalents, finding “[t]he mere recital of the Graver Tank [& Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950)] mantra that the accused device performs ‘the same function, in the same way, to achieve the same result,’ without more, does not create a genuine issue of material fact as to whether an accused device infringes by equivalents.” Moore U.S.A., 229 F.3d at 1113, 56 USPQ2d at 1240. Accordingly, infringement must be shown literally or equivalently for each limitation; general assertions of facts, general denials, and conclusory statements are insufficient to shoulder the non-movant’s burden. Johnston v. IVAC Corp., 885 F.2d 1574, 1578, 12 USPQ2d 1382, 1385 (Fed.Cir.1989) (citing Chemical Eng’g v. Essef Indus., 795 F.2d 1565, 230 USPQ 385 (Fed.Cir.1986)). Thus, the party opposing the motion for summary judgment of noninfringment must point to an evidentiary conflict created on the record, at least by a counter-statement of a fact set forth in detail in an affidavit by a knowledgeable affiant. Mere denials or conclusory statements are insufficient. Collins, Inc. v. N. Telecom, Ltd., 216 F.3d 1042, 1046, 55 USPQ2d 1143, 1146 (Fed.Cir.2000); Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 836, 221 USPQ 561, 564 (Fed.Cir.1984). In Phillips Petroleum Co. v. Huntsman Polymers Corp., 157 F.3d 866, 48 USPQ2d 1161 (Fed.Cir.1998), this court held that the patentee failed, through the conclusory statements of experts, to raise a genuine issue of material fact precluding summary judgment. 157 F.3d at 876, 48 USPQ2d at 1169-70. Rejecting Phillips’ argument that the accused products contain block copolymers within the meaning of the claims, the court stated, “[w]e agree with the Special Master’s conclusion that the expert declarations are wholly conclu-sory, devoid of facts upon which the affi-ant[s’] conclusions, as experts, were reached.” Id. (quotation marks omitted). Thus, unsupported or conclusory aver-ments are insufficient to avoid summary judgment where the moving party has met its initial burden. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d" }, { "docid": "9788720", "title": "", "text": "evidence in support of the nonmoving party, however, will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, then the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, the court must grant summary judgment if the party responding to the motion fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof. Omnipoint Comm. Enters., L.P. v. Newtown Township, 219 F.3d 240, 242 (3d Cir.2000) (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548). IV. DISCUSSION A. Izumi’s Motion for Summary Judgment of Literal Infringement and Philips’s Cross-Motion for Summary Judgment of Nonin-fringement A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). A court should employ a two-step analysis in making an infringement determination. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995). First, the court must construe the asserted claims to ascertain their meaning and scope. Id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998). The trier of fact must then compare the properly construed claims with .the accused infringing product. Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). Literal infringement occurs where each limitation of at least one claim of the patent is found exactly in the alleged infringer’s product. Panduit Corp. v." }, { "docid": "6599198", "title": "", "text": "in which the district court sits. Classen Immunotherapies, Inc. v. Elan Pharm., Inc., 786 F.3d 892, 896 (Fed.Cir.2016). In the Third Circuit, the court reviews the grant of summary judgment de novo. See Al-Sharif v. U.S. Citizenship & Immigration Servs., 734 F.3d 207, 210 n. 2 (3d Cir.2013) (en banc). The Third Circuit affirms the grant of summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is- entitled to judgment as a matter of law.” Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 261 (3d Cir.2012) (quoting Fed. R.Civ.P. 56(a)). A genuine dispute over a material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[0]n appeal from' a grant of summary judgment of noninfringement, we must determine whether ... the district court correctly concluded that no reasonable jury could find [literal] infringement” or infringement under the doctrine of equivalents., Crown Packaging Tech., Inc. v. Rexam Beverage Can Co., 559 F.3d 1308, 1312 (Fed.Cir.2009) (internal quotation marks and citation omitted). “To establish literal infringement, every limitation set forth in a claim must be found in an accused product, exactly,” Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed.Cir.1995) (citation omitted), whereas under the doctrine of equivalents infringement occurs when “there is equivalence between the elements of the accused product ... and the claimed elements of the patented invention,” Duramed Pharm., Inc. v. Paddock Labs., Inc., 644 F.3d 1376, 1380 (Fed.Cir.2011) (internal quotation marks and citation omitted). A. The District Court Properly Held that Google’s AdWords Does Not Infringe the '474 Patent GeoTag’s infringement allegations principally concern the “dynamically replicated” limitation in claim 1 of the '474 patent. As previously mentioned, the “dynamically replicated” limitation occurs after the system conducts a search within a limited geographic area. '474 patent col. 3811. 36-58." }, { "docid": "8109581", "title": "", "text": "as to any material fact and that the moving party is entitled to a judgment as a matter of law. See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, “[sjummary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party.” Miller v. Indiana Hosp., 843 F.2d 139, 143 (3d Cir.1988). All facts and inferences must be construed in the light most favorable to the non-moving party. See Peters v. Delaware River Port Auth. of Pa. and N.J., 16 F.3d 1346, 1349 (3d Cir.1994). Substantive law controls the inquiry into which facts are “material.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. An issue is “genuine” if a reasonable jury could decide the issue in the nonmovant’s favor. Id. Thus, “[ojnly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id.; accord Ridgewood Bd. of Educ. v. M.E., 172 F.3d 238, 252 (3d Cir.1999) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Finally, “the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. III. DISCUSSION A. Procedure for Patent Infringement Analysis There is a two-step analysis for determining whether a patent has been infringed. Glaxo, 110 F.3d at 1565. “First, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process.” Carroll Touch, Inc. v. Electro Mechanical Sys., Inc., 15 F.3d 1573, 1576 (Fed.Cir.1993)." }, { "docid": "14137201", "title": "", "text": "banc). A motion for summary judgment is properly granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Summary judgment must be entered 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Fed. R.Civ.P. 56(c), (e). An infringement analysis requires two steps: claim construction to determine the scope and meaning of the asserted claims, and a comparison of the properly construed claims with the allegedly infringing device or method to determine whether the device or method embodies every limitation of the claims. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454, 46 USPQ2d 1169, 1172 (Fed.Cir.1998) (en banc). Claim construction is a matter of law over which we exercise independent review. See id. at 1456, 138 F.3d 1448, 46 USPQ2d at 1174. Whether an accused device or method infringes a claim either literally or under the doctrine of equivalents is a question of fact. Tanabe Seiyaku Co. v. United States Int'l Trade Comm’n, 109 F.3d 726, 731, 41 USPQ2d 1976, 1981 (Fed.Cir.1997). Thus, on appeal from a grant of summary judgment of noninfringement, we must determine whether, after resolving reasonable factual inferences in favor of the patentee, the district court correctly concluded that no reasonable jury could find infringement. IMS Tech., Inc. v. Haas Automation, Inc., 206 F.3d 1422, 1429, 54 USPQ2d 1129, 1133 (Fed.Cir.2000). 1. The principal question in this case is whether the term “generally flat aft keel,” properly construed, encompasses a twelve degree V-shaped aft keel such as the one found in Regal’s FasTrac hull design. The district court construed “generally flat” to mean “mostly horizontal.” Schoell argued that, although deeper V-shapes may not be flat, a twelve degree V-shape was sufficiently shallow to be “generally flat.” Rejecting Schoell’s position, the court noted that Schoell’s written" }, { "docid": "15020894", "title": "", "text": "between the elements of the accused product or process and the claimed elements of the patented invention.” Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 17, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). “In determining whether there has been infringement, a two step analysis is required. First, the claims must be correctly construed to determine the scope of the claims. Second, the claims must be compared to the accused device.” Kahn, 135 F.3d at 1476. In a motion for summary judgment of non-infringement, “[t]he movant bears the burden of demonstrating absence of all genuine issues of material fact, the district court must view the evidence in a light most favorable to the nonmovant and draw all reasonable inferences in its favor, and must resolve all doubt over factual issues in favor of the party opposing summary judgment.” SRI Int’l v. Matsushita Elec. Corp., 775 F.2d 1107, 1116 (Fed.Cir.1985). Thus, to prevail against DR Systems’ motion for summary judgment, Kodak needs to show that a genuine issue of material fact exists as to whether the accused device infringes one or more claims of the '811 patent. Id. III. Discussion A. D652 Patent In order to establish infringement of a design patent, a patentee must establish that an ordinary observer, familiar with the prior art designs, would be deceived into believing the accused product is the same as the patented product. Egyptian Goddess, 543 F.3d at 672; Richardson, 597 F.3d at 1295. Design patent infringement is a question of fact. Richardson, 597 F.3d at 1295. Defendants are required to establish that there is no issue of material fact as to whether the accused product infringes the 'D652 patent. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The 'D652 patent includes eight figures directed to the ornamental design of a neck protector. This Court construed the design patent to claim “[t]he ornamental design for a neck protector as reflected in Figures 1-8, depicting a vertical zipper.” (Doc. No. 139 at 15.) The Court also noted that the design patent is limited to the designs depicted" }, { "docid": "3347222", "title": "", "text": "in light of this court’s opinion and again held on summary judgment that Cardinal did not infringe the '532 patent. In particular, the district court determined, as it understood this court to have instructed, that a “layer” was defined further by its method of formation. Because the accused products contain multiple, sequentially deposited layers of zinc oxide, the trial court determined that Cardinal could not infringe. The district court separately determined that some accused products contain a layer of titanium dioxide, which would also preclude infringement. Although not appealed, the district court also held the Goodman patent did not anticipate the '532 patent. II. This court reviews a grant of summary judgment without deference to the decision of the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999); Johns Hopkins Univ. v. CellPro, Inc., 152 F.3d 1342, 1353 (Fed.Cir.1998). Summary judgment is appropriate only where “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “On summary judgment, the evidence must be viewed in the light most favorable to the party opposing the motion, with doubts resolved in favor of the nonmovant.” Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367, 1375 (Fed.Cir.2002) (citations omitted). Determining infringement is a two-step process. First, the court determines the scope and meaning of the asserted claim. Then, the court compares the properly construed claims with the accused device or product to reach a finding regarding infringement. Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 988 (Fed.Cir.1999). This court reviews the first determination without deference. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998). In the context of summary judgment, this court reviews the second determination for genuine disputes of material facts that would preclude a grant of summary judgment. Hilgraeve Corp. v. McAfee Assocs., Inc., 224 F.3d 1349, 1352-54 (Fed.Cir.2000). In particular, a trial court cannot reach a conclusive finding of noninfringement" }, { "docid": "23705401", "title": "", "text": "plots and the flow pattern required under the court’s claim construction. The district court granted summary judgment in favor of Vaughan and mooted Vaughan’s counterclaims for invalidity and inequitable conduct. Both parties timely appealed. We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION A. Standard of Review This court reviews the grant of summary judgment de novo. Genzyme Corp. v. Transkaryotic Therapies, Inc., 346 F.3d 1094, 1096 (Fed.Cir.2003); Pickholtz v. Rainbow Techs., Inc., 284 F.3d 1365, 1371 (Fed.Cir.2002); Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). Summary judgment is appropriate when there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A determination of patent infringement requires a two-step analysis. The court must first interpret the claim and determine the scope and the meaning of the asserted patent claims, and then compare the properly construed claims to the allegedly infringing device. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998). The first step, claim construction, is a matter of law that we review de novo. Id. at 1451. The second step is a factual question that we review following a trial for clear error. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). When conducting a de novo review of a district court’s grant of summary judgment, however, we construe the facts in the light most favorable to the non-movant. Mazzari v. Rogan, 323 F.3d 1000, 1005 (Fed.Cir.2003). To prove infringement, the patentee must show that the accused device meets each claim limitation, either literally or under the doctrine of equivalents. Deering Precision Instruments, L.L.C. v. Vector Distrib. Sys., Inc., 347 F.3d 1314, 1324 (Fed.Cir. 2003). We review the district court’s decision to moot Vaughan’s counterclaims for abuse of discretion. Phonometrics, Inc. v. N. Tele-com, Inc., 133 F.3d 1459, 1468 (Fed.Cir. 1998). B. Claim Construction Courts construe claims by considering the evidence necessary to resolve disputes about claim" }, { "docid": "20677573", "title": "", "text": "than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586-87, 106 S.Ct. 1348; see also Podobnik v. U.S. Postal Service, 409 F.3d 584, 594 (3d Cir. 2005) (stating party opposing summary judgment “must present more than just bare assertions, eonclusory allegations or suspicions to show the existence of a genuine issue”) (internal quotation marks omitted). Although the “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment,” a factual dispute is genuine where “the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 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”). B. Infringement A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). A two-step analysis is employed in making an infringement determination. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir.1995). First, the court must construe the asserted claims to ascertain their meaning and scope. See id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998). The trier of fact must then compare the properly construed claims with the accused infringing product. See Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). “Direct infringement" }, { "docid": "20677575", "title": "", "text": "requires a party to perform each and every step or element of a claimed method or product.” BMC Res., Inc. v. Paymentech, LP., 498 F.3d 1373, 1378 (Fed.Cir.2007), overruled on other grounds by 692 F.3d 1301 (Fed. Cir.2012). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). However, “[o]ne may infringe an independent claim and not infringe a claim dependent on that claim.” Monsanto Co. v. Syngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed.Cir.2007) (quoting Wahpeton Canvas, 870 F.2d at 1552) (internal quotations omitted). A product that does not literally infringe a patent claim may still infringe under the doctrine of equivalents if the differences between an individual limitation of the claimed invention and an element of the accused product are insubstantial. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 24, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). When an accused infringer moves for summary judgment of non-infringement, such relief may be granted only if one or more limitations of the claim in question does not read on an element of the accused product, either literally or under the doctrine of equivalents. See Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1376 (Fed.Cir. 2005); see also TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1369 (Fed.Cir.2002) (“Summary judgment- of noninfringement is ... appropriate where the patent owner’s proof is deficient in meeting an essential part of the legal standard for infringement, because such failure will render all other facts immaterial,”). Thus, summary judgment of non-infringement can only be granted if, after viewing the facts in the light most" }, { "docid": "23595817", "title": "", "text": "1103, 1106 (Fed.Cir.1997). An infringement analysis is “a two-step process in which we first determine the correct claim scope, and then compare the properly construed claim to the accused device to determine whether all of the claim limitations are present either literally or by a substantial equivalent.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1247-48, 48 USPQ2d 1117, 1120 (Fed.Cir.1998). To establish literal infringement, all of the elements of the claim, as correctly construed, must be present in the accused system. See Cole v. Kimberly-Clark Corp., 102 F.3d at 524, 532, 41 USPQ2d 1001, 1007 (Fed.Cir.1996). “A party may not overcome a grant of summary judgment by merely offering conclusory statements.” Moore U.S.A., Inc. v. Standard Register Co., 229 F.3d 1091, 1112, 56 USPQ2d 1225, 1240 (Fed.Cir.2000). In Moore, the declarations offered by the patentee to carry its burden of proof of infringement were found insufficient. Moore’s declarations alleged infringement with specific reference to the accused device. However, the Federal Circuit determined that the “allegations” contained therein were “entirely lacking in factual support.” Id. This court similarly dismissed Moore’s claim of infringement under the doctrine of equivalents, finding “[t]he mere recital of the Graver Tank [& Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950)] mantra that the accused device performs ‘the same function, in the same way, to achieve the same result,’ without more, does not create a genuine issue of material fact as to whether an accused device infringes by equivalents.” Moore U.S.A., 229 F.3d at 1113, 56 USPQ2d at 1240. Accordingly, infringement must be shown literally or equivalently for each limitation; general assertions of facts, general denials, and conclusory statements are insufficient to shoulder the non-movant’s burden. Johnston v. IVAC Corp., 885 F.2d 1574, 1578, 12 USPQ2d 1382, 1385 (Fed.Cir.1989) (citing Chemical Eng’g v. Essef Indus., 795 F.2d 1565, 230 USPQ 385 (Fed.Cir.1986)). Thus, the party opposing the motion for summary judgment of noninfringment must point to an evidentiary conflict created on the record, at least by a counter-statement of a fact set forth in detail" }, { "docid": "14137200", "title": "", "text": "recommended granting summary judgment with respect to literal infringement. The magistrate judge also concluded that summary judgment of noninfringement under the doctrine of equivalents was appropriate because the only evidence of equivalence submitted was Schoell’s own affidavit stating that he believed there was equivalence based on his tests of hulls allegedly similar to the Regal FasTrac hull. The district judge adopted the magistrate judge’s recommendation in its entirety. Schoell v. Regal Marine Indus., Inc., No. 98-411-CIV-ORL-19B, 1999 WL 225505 (M.D.Fla. Mar. 30,1999). DISCUSSION In reviewing a district court’s grant of summary judgment, we must make an independent determination as to whether the standards for summary judgment have been met. Conroy v. Reebok Int'l, Ltd., 14 F.3d 1570, 1575, 29 USPQ2d 1373, 1377 (Fed.Cir.1994). We view the evidence in a light most favorable to the non-movant, and draw all reasonable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); SRI Int'l v. Matsushita Elec. Corp., 775 F.2d 1107, 1116, 227 USPQ 577, 581 (Fed.Cir.1985) (en banc). A motion for summary judgment is properly granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Summary judgment must be entered 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Fed. R.Civ.P. 56(c), (e). An infringement analysis requires two steps: claim construction to determine the scope and meaning of the asserted claims, and a comparison of the properly construed claims with the allegedly infringing device or method to determine whether the device or method embodies every limitation of the claims. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454, 46 USPQ2d 1169, 1172 (Fed.Cir.1998) (en banc). Claim construction is a matter of law over which we exercise independent review. See id. at" } ]

[ { "docid": "22726672", "title": "", "text": "free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief. See Younger v. Harris, supra, at 44-45. This reflection of our federalism also must influence our interpretation of the Bankruptcy Code in this case. I — I l-H I — I In light of the established state of the law — that bankruptcy courts could not discharge criminal judgments — we have serious doubts whether Congress intended to make criminal penalties “debts” within the meaning of §101(4). But we need not address that question in this case, because we hold that § 523(a)(7) preserves from discharge any condition a state criminal court imposes as part of a criminal sentence. The relevant portion of § 523(a)(7) protects from discharge any debt “to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.” This language is subject to interpretation. On its face, § 523(a)(7) certainly does not compel the conclusion reached by the Court of Appeals, that a discharge in bankruptcy voids restitution orders imposed as conditions of probation by state courts. Nowhere in the- House and Senate Reports is there any indication that this language should be read so intrusively. If Congress had intended, by § 523(a)(7) or by any other provision, to discharge state criminal sentences, “we can be certain that there would have been hearings, testimony, and debate concerning consequences so wasteful, so inimical to purposes previously deemed important, and so likely to arouse public outrage,” TVA v. Hill, 437 U. S. 153, 209 (1978) (Powell, J., dissenting). Our reading of § 523(a)(7) differs from that of the Second Circuit. On its face, it creates a broad exception for all penal sanctions, whether they be denominated fines, penalties, or forfeitures. Congress included two qualifying phrases; the fines must be both “to and for the benefit of a governmental unit,” and “not compensation for actual pecuniary loss.” Section 523(a)(7) protects traditional criminal fines; it codifies the judicially created" } ]

[ { "docid": "19173364", "title": "", "text": "S.Ct. at 2132-33, the Court held that subordination to 11 U.S.C. § 726(a)(4) includes civil as well as criminal fines and penalties, as a corollary to the discharge provision of 11 U.S.C. § 523(a)(7). Kelly and Davenport thus applied in specific bankruptcy contexts the general principle that the nature of a remedy depends on “whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual”. Huntington v. Attrill, 146 U.S. 657, 668, 13 S.Ct. 224, 228, 36 L.Ed. 1123 (1892). The TECA remarked in Citronelle-Mobile Gathering, Inc. v. Edwards, 669 F.2d 717, 722 (Temp.Emer.Ct.App.1982) that the DOE is charged with enforcing “public, not private rights”. See also In re Dep’t of Energy Stripper Well Exemption Litigation, 968 F.2d 27, 37 n. 10 (Temp.Emer.Ct.App.1992) (the disbursement to the state and federal treasuries is “reimbursement to the true victims of the overcharges, the public”); Lea Exploration, Inc. v. Department of Energy, 843 F.2d 510, 515 (Temp.Emer.Ct.App.1988) (ESA section 209 action is characterized as a claim to enforce public rights). These principles are not platitudes, and when applied in the bankruptcy context they have substantive effect. The enactment of the PODRA, and other dispositions of the reservoir of unclaimed recovery by the DOE under section 209, did not convert the federal and state governments into out-of-pocket creditors; the PODRA simply established their right to receive the unclaimed recoveries. The non-compensatory portion of the recovery fits the statutory definition of a “forfeiture ... to the extent that such ... forfeiture [is] not compensation for actual pecuniary loss suffered by the holder of such claim.” 11 U.S.C. § 726(a)(4). It is contrary to bankruptcy principles to grant these residuary donees the same priority of claim, under the bankruptcy laws, as debentureholders and others who suffered an actual pecuniary loss to the bankrupt entity. In accordance with these principles, the consequences of the misconduct of bankrupts should not be visited upon their innocent creditors, which is the effect if non-compensatory penalties and forfeitures are not subordinated to the claims of unsecured creditors. Simonson v. Granquist, 369 U.S. at" }, { "docid": "16390169", "title": "", "text": "arose. Therefore, in the absence of an agreement, postpetition interest is the only added recovery available. Id. at 1030. The County is correct in noting that the Supreme Court in Ron Pair decided only that the government was entitled to recover under section 506(b), postpetition interest on its oversecured, nonconsensual tax claim. See id. at 1028, 1030-34. Contrary to DIFs assertion, the Ron Pair Court did not definitively decide whether section 506(b) bars recovery of a prepetition non-consensual claim for tax penalties. In order to determine whether tax penalties are allowable in the case at bar, it will be helpful to examine 11 U.S.C. § 93(5) of the former Bankruptcy Act, which was the last statutory provision to address the validity of tax penalty claims in bankruptcy proceedings. Section 93(j), commonly referred to as section 57(5), which was the original version of the statute, provided: j. [djebts owing to the United States or to any State or any subdivision thereof as a penalty or forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby and such interest as may have accrued on the amount of such loss according to law. 11 U.S.C. § 93(5), 66 Stat. 424 (1952) (repealed 1979) (original version at Bankruptcy Act of 1898, ch. 541, § 57(5), 30 Stat. 561). Interpreting this former section, the United States Supreme Court established conclusively that prepetition non-compensatory penalty claims, whether secured or unsecured could not be asserted against the debtor’s estate. Simonson v. Granquist, 369 U.S. 38, 40, 82 S.Ct. 537, 538, 7 L.Ed.2d 557 (1962). The reason for the strict prohibition against penalties stated by the Simonson Court was as follows: [unquestionably [the] ... language [of § 57j] is broad enough to bar all penalties, whether secured by lien or not, and we think the section was designed to do precisely that. For it plainly manifests a congressional purpose to bar all claims of any kind against a bankrupt except those based on" }, { "docid": "17941229", "title": "", "text": "nonconsen-sual claim for tax penalties.” 117 B.R. at 223. In Ron Pair, the Supreme Court interpreted § 506(b) in accordance with pre-Code case law. Under § 57j of the former Bankruptcy Act, debts owing to a state or subdivision “as a penalty or forfeiture shall not be allowed_” 11 U.S.C. § 93(j) (repealed 1979). Manchester Lakes Assocs., 117 B.R. at 223. The Supreme Court had interpreted § 57j broadly to prohibit allowance of tax penalty claims without regard to whether the claim was secured or unsecured. See Simonson v. Granquist, 369 U.S. 38, 39-40, 82 S.Ct. 537, 538-39, 7 L.Ed.2d 557 (1962). The Bankruptcy Reform Act of 1978 contains no provision similar to former § 57j applicable to Chapter 11 cases. Several sections of the Code deal specifically with claims for penalties in Chapter 7 cases. Section 726(a)(4) provides for automatic subordination of noncompensatory penalty claims in Chapter 7 cases. Section 724(a) makes liens securing noncompensatory penalty claims voidable by the trustee in a Chapter 7 case. As Judge Bostetter documents, the legislative history of §§ 724 and 726 demonstrates that Congress contemplated that liens securing penalties would be valid in Chapter 11 cases following enactment of the Code: The Notes of the Committee on the Judiciary Senate Report 95-989 (“Notes”) pertaining to section 724(a) indicate that section 724(a) continues section 57(j)’s policy of protecting unsecured creditors from the debtor’s wrongdoing. The Notes explain: [sjubsection (a) of section 724 permits the trustee to avoid a lien that secures a fine, penalty, forfeiture, or multiple, punitive, or exemplary damages claim to the extent that the claim is not compensation for actual pecuniary loss. The subsection follows the policy found in section 57j of the Bankruptcy Act of protecting unsecured creditors from the debtor’s wrongdoing, but expands the protection afforded. The lien is made voidable rather than void in chapter 7, in order to permit the lien to be revived if the case is converted to chapter 11, under which penalty liens are not voidable. To make the lien void would be to permit the filing of a chapter 7, the voiding" }, { "docid": "21687193", "title": "", "text": "October 6, 1982, DOI filed a proof of claim for $69,350 for postpetition environmental penalties assessed against Elkins. The trustee timely objected to DOI’s claim, contending that section 57(j) of the Act prohibits allowance of claims for postpetition civil penalties. The bankruptcy court sustained the trustee’s objection to DOI’s claim, 38 B.R. 390 (1984), and the district court affirmed. II The sole issue before us is whether section 57(j) of the Bankruptcy Act prohibits the recovery by DOI of environmental penalties assessed against Elkins, as a debtor in possession, after Elkins filed a petition for an arrangement in bankruptcy. Section 57(j), former 11 U.S.C. § 93(j), provides: (j) Debts owing to the United States or to any State or any subdivision thereof as a penalty or forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby and such interest as may have accrued on the amount of such loss according to law. Although the language of section 57(j) appears broad enough to “bar all claims of any kind against a bankrupt except those based on a ‘pecuniary’ loss,” Simonson v. Granquist, 369 U.S. 38, 40, 82 S.Ct. 537, 538, 7 L.Ed.2d 557 (1962), the Supreme Court has twice construed section 57(j) to allow postpetition tax penalty claims incurred by a trustee while operating the debtor’s business. In Boteler v. Ingels, 308 U.S. 57, 59-60, 60 S.Ct. 29, 31-32, 84 L.Ed. 442 (1939), the Court stated, in holding a trustee liable for penalties incurred while the trustee operated the business of the debtor: Subdivision 57(j) prohibits allowance of a tax penalty against the bankrupt estate only if incurred by the bankrupt before bankruptcy by reason of his own delinquency. After bankruptcy, it does not purport to. exempt the trustee from the operation of state laws, or to relieve the estate from liability for the trustee’s delinquencies. See Nicholas v. United States, 384 U.S. 678, 692-695, 86 S.Ct. 1674, 1684-1686, 16 L.Ed.2d 853 (1966) (trustee liable for" }, { "docid": "19173365", "title": "", "text": "These principles are not platitudes, and when applied in the bankruptcy context they have substantive effect. The enactment of the PODRA, and other dispositions of the reservoir of unclaimed recovery by the DOE under section 209, did not convert the federal and state governments into out-of-pocket creditors; the PODRA simply established their right to receive the unclaimed recoveries. The non-compensatory portion of the recovery fits the statutory definition of a “forfeiture ... to the extent that such ... forfeiture [is] not compensation for actual pecuniary loss suffered by the holder of such claim.” 11 U.S.C. § 726(a)(4). It is contrary to bankruptcy principles to grant these residuary donees the same priority of claim, under the bankruptcy laws, as debentureholders and others who suffered an actual pecuniary loss to the bankrupt entity. In accordance with these principles, the consequences of the misconduct of bankrupts should not be visited upon their innocent creditors, which is the effect if non-compensatory penalties and forfeitures are not subordinated to the claims of unsecured creditors. Simonson v. Granquist, 369 U.S. at 41, 82 S.Ct. at 539. In addition to the enactment of the PO-DRA, the Supreme Court decisions in Kelly and Davenport, clarifying certain principles with respect to restitution and subordination in bankruptcy, all occurred after West Texas Marketing was decided by the TECA. Although Transcontinental Energy was decided thereafter, in that terse opinion the TECA did not discuss any of these changes in law. We conclude that the rulings in West Texas Marketing and Transcontinental Energy are no longer viable, insofar as they relate to the bankruptcy classification of claims under ESA section 209. To the extent that these rulings conflict with our decision herein, they are overruled. Decision The DOE’s section 209 claim in these bankruptcy proceedings is properly separated into claims for pecuniary and non-pecuniary losses. The portion claimed on behalf of identified persons who suffered an actual pecuniary loss, due to the overcharges remedied under section 209, is properly classified in Class 7 of the Plan of Liquidation. The claim for the portion to be paid to the federal and state governments" }, { "docid": "16276918", "title": "", "text": "Id. (tax liens are entitled to priority over homestead exemptions even where the IRS did not object to the homestead exemption). In other words, § 522(c)(2) neutralizes Mr. Bolden’s claim that he is entitled to collect on his homestead exemption claim here because no timely objection to his $50,000 claim was filed by the trustee. The trustee here contends that the property should not be abandoned because the liens that he seeks to avoid will confer a benefit on the estate and should be turned over to the trustee pursuant to § 542(a). The trustee notes that § 724(a) states: “The trustee may avoid a lien that secures a claim of a kind specified in section 726(a)(4) of this title.” While § 726 deals generally with the distribution of property of the estate, § 726(a)(4) provides that the fourth priority in distribution of property of the estate is “in payment of any allowed claim, whether secured or unsecured, for any fine, penalty, or forfeiture, or for multiple, exemplary, or punitive damages, arising before the earlier of the order for relief or the appointment of a trustee, to the extent that such fine, penalty, forfei ture, or damages are not compensation for actual pecuniary loss suffered by the holder of such claim.” Taken together, §§ 724(a) and 726(a)(4) establish a statutory basis to allow the trustee to avoid tax penalty liens of the IRS and Franchise Tax Board. Here, the tax penalty liens (with the exception of the IRS’ trust fund recovery penalty) were assessed against Mr. Bolden before the order for relief, as fines or penalties, and not as compensation for actual pecuniary loss. The tax penalties were punitive in nature and assessed to punish a failure to pay taxes. The Supreme Court has explained that the bankruptcy statute “manifests a congressional purpose to bar all claims of any kind against a bankrupt except those based on a ‘pecuniary’ loss.” Simonson v. Granquist, 369 U.S. 38, 82 S.Ct. 537, 538-39, 7 L.Ed.2d 557 (1962). The Court reasoned: “Tax penalties are imposed at least in part as punitive measures against persons" }, { "docid": "9920985", "title": "", "text": "U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822 (1922); United States v. Constantine, 296 U.S. 287, 56 S.Ct. 223, 80 L.Ed. 233 (1936); In re Standard Composition Co., 23 F.Supp. 391 (E.D.Mich., 1938); In re Caponigri, 193 F. 291 (D.C.N.Y., 1912). We disagree, too, with the conclusion that a tax under the Constitution cannot be a penalty. Section 57j places penalties in a category quite different from debts, and the character of a penalty cannot be changed by calling it a tax. The words of the statute precisely reveal the purpose of Congress not to exercise its sovereign right to a claim against a bankrupt except to the extent that there has been a pecuniary loss. The constitutional issue is concerned with coercion or usurpation of powers of the states. The penal nature of the imposition of a “tax” does not prevent its being valid, where the tax is otherwise permissible under the Constitution. Helvering v. National Grocery Company, 304 U.S. 282, 58 S.Ct. 932, 82 L.Ed. 1346 (1938); United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953). Section 57j of the Bankruptcy Act implements a broad congressional policy against punishing the innocent creditors of a bankrupt. United States v. Moore, 366 F.2d 243 (5th Cir., 1966). This policy has been summarized succinctly by the Supreme Court in Simonson v. Granquist, 369 U.S. 38, 40, 82 S.Ct. 537, 538, 7 L.Ed.2d 557 (1962): For it plainly manifests a congressional purpose to bar all claims of any kind against a bankrupt except those based on a ‘pecuniary’ loss. So understood, this section, which has been a part of the Bankruptcy Act since its enactment in 1898, is in keeping with the broad aim of the Act to provide for the conservation of the estates of insolvents to the end that there may be as equitable a distribution of assets as is consistent with the type of claim involved. Moreover, the prohibition of all tax penalties in bankruptcy is wholly consistent with the policy of the penalty provisions themselves. Tax penalties are imposed at least in part" }, { "docid": "19173357", "title": "", "text": "of Restitution, §§ 150-159, Introductory Note (1937). There must be some relationship between the person injured and the recipient of the recovery. See Hughey v. United States, 495 U.S. 411, 416, 110 S.Ct. 1979, 1982, 109 L.Ed.2d 408 (1990) (“the ordinary meaning of ‘restitution’ is restoring someone to á position he occupied before a particular event”). It is undisputed that no significant restitution has been made or is expected to be made to any person who actually suffered a pecuniary loss due to the small refiner bias overpayments to the Texas American subsidiary company. It is undisputed that at least eighty percent of the recovery will be paid to the federal and state governments. Government has the sole interest in this bankruptcy claim. This is relevant to section 726(a)(4) of the Bankruptcy Code, which defines the fourth priority as including recovery of a fine, penalty, or forfeiture, to the extent that such recovery is “not compensation for actual pecuniary loss suffered by the holder of such claim”. The DOE points out that in West Texas Marketing the TECA held that the “restitutionary character” of the DOE’s recovery under ESA section 209 is unrelated to whether the recovered funds will be distributed to the actual parties who were overcharged. 763 F.2d at 1426. While we agree that “restitution” and the disgorgement of “unjust enrichment” are related concepts, we take note that West Texas Marketing was decided before the courts, Congress, and the DOE resolved the growing problems flowing from the inability to “restore” the losses of the persons who were overcharged. When restitution to those who suffered the losses was not feasible, the acknowledged public purpose of the section 209 prosecutions was to remedy unjust enrichment of the wrongdoer, not to “make whole” those persons who were overcharged. Congress, the DOE, and the courts all acted for this purpose. The PODRA-authorized disposition of recovered overcharges to governmental treasuries does not require that the federal and state governments suffered a pecuniary loss. Compare the recovery in United States v. P/B STCO 213, 756 F.2d 364 (5th Cir.1985), wherein the government expended funds" }, { "docid": "9549866", "title": "", "text": "a penalty in the true sense of the word, it would not be allowable under Section 57, sub. j and would not be dischargeable under Section 17. There is an apparent inconsistency between Section 63, sub. a and Section 57, sub. j in that the former omits reference to the provability or non-provability of claims for fines and penalties. As stated in 3 Collier, Bankruptcy, § 63.12: “The Bankruptcy Act makes specific provision only for the disallowance of governmental claims for penalties and forfeitures. It does not expressly say that a fine or penalty claim asserted by the United States or any state or subdivision thereof is not provable, and considering that such a penalty claim may be based on a ‘judgment’ in the broad sense of the term, it might seem that a fine or penalty imposed by a judgment would be provable and allowable under § 63a(l), notwithstanding § 57j. The courts have rightly decided otherwise. * * * ” The courts have solved this inconsistency from the standpoint of dischargeability rather than provability. The theory is that the Government would be frustrated in the enforcement of its edicts if the debtor could escape liability for his penalties by simply filing a petition in bankruptcy and shifting the burden to his creditors. To prevent the debtor from thus discharging his penalties and transferring his punitive liability to his innocent creditors, he has been denied a discharge of such penalties in his bankruptcy proceeding. Since such true penalties, whether or not secured by a lien, are clearly not dis-chargeable, it follows that they are not provable. Simonson v. Granquist, 1962, 369 U.S. 38, 82 S.Ct. 537, 7 L.Ed.2d 557; In re Parchem, D.C.Minn.1958, 166 F.Supp. 724; Matter of Abramson, supra; 3 Collier, Bankruptcy, § 63.12. True penalties and forfeitures being unprovable and reference being made only to allowability of pecuniary loss penalties in Section 57, sub. j, the question is still left open whether such pecuniary loss penalties are provable. Collier in speaking of Section 57, sub. j says: “The subdivision has no direct bearing on either provability under" }, { "docid": "18591283", "title": "", "text": "this title.” Section 726(a)(4) in turn provides: (a) Except as provided in section 510 of this title, property of the estate shall be distributed— (4) fourth, in payment of any allowed claim, whether secured or unsecured, for any fine, penalty, or forfeiture, or for multiple, exemplary, or punitive damages, arising before the earlier of the order for relief or the appointment of a trustee, to the extent that such fine, penalty, forfeiture, or damages are not compensation for actual pecuniary loss suffered by the holder of such claim; Even though it concedes that the tax penalties in question are not compensation for actual pecuniary loss, the IRS contends that § 724(a) is inapplicable because § 726 is addressed only to distribution of property of the estate and does not apply to property not within the estate. The liens at issue secure the proceeds from the debtors’ homestead which is exempt property and not property of the estate. The purpose of § 724(a) is to protect unsecured creditors from the debtor’s wrongdoing by permitting “the trustee to avoid a lien that secures [a claim of a kind specified in § 726(a)(4)] to the extent that the claim is not compensation for actual pecuniary loss.” Notes of Committee on the Judiciary, Senate Report No. 95-989, U.S.Code Cong. & Admin.News 1978, p. 5882. See also Simonson v. Granquist, 369 U.S. 38, 41, 82 S.Ct. 537, 7 L.Ed.2d 557 (1962) (“Enforcement of penalties against the estates of bankrupts, however, would serve not to punish the delinquent taxpayers, but rather their entirely innocent creditors.”); Ruhter v. I.R.S., 339 F.2d 575 (10th Cir. 1964); State Bd. of Equalization v. Stodd, 500 F.2d 1208 (9th Cir. 1974). Thus, both the language of §§ 724 and 726 and the purpose of the avoidance section support the position of the IRS. No protec tion would be afforded unsecured creditors by the avoidance of liens securing property which is not part of the estate from which those creditors are compensated. The Carl-tons’ argument that their homestead and other exempt property are not subject to the tax penalties under § 522(c)" }, { "docid": "19173358", "title": "", "text": "Marketing the TECA held that the “restitutionary character” of the DOE’s recovery under ESA section 209 is unrelated to whether the recovered funds will be distributed to the actual parties who were overcharged. 763 F.2d at 1426. While we agree that “restitution” and the disgorgement of “unjust enrichment” are related concepts, we take note that West Texas Marketing was decided before the courts, Congress, and the DOE resolved the growing problems flowing from the inability to “restore” the losses of the persons who were overcharged. When restitution to those who suffered the losses was not feasible, the acknowledged public purpose of the section 209 prosecutions was to remedy unjust enrichment of the wrongdoer, not to “make whole” those persons who were overcharged. Congress, the DOE, and the courts all acted for this purpose. The PODRA-authorized disposition of recovered overcharges to governmental treasuries does not require that the federal and state governments suffered a pecuniary loss. Compare the recovery in United States v. P/B STCO 213, 756 F.2d 364 (5th Cir.1985), wherein the government expended funds to clean waters polluted by the defendant, and sought to recover the actual cost of the cleanup. In contrast, the government in this case expended no funds and suffered no actual loss; yet the overcharges are recovered by the government from the wrongdoer, and retained for governmental use. The Bankruptcy Code serves a quite different public purpose. In effecting the principles of creditors’ and debtors’ rights and obligations, one of the firmest of principles is that creditors who suffered a pecuniary loss to the bankrupt have priority of claim over those who suffered no pecuniary loss. See Simonson v. Granquist, 369 U.S. 38, 40-41, 82 S.Ct. 537, 538-39, 7 L.Ed.2d 557 (1962) (discussing purpose of bankruptcy laws to bar claims against a bankrupt except those based on a pecuniary loss); 11 U.S.C. § 726(a); 4 Collier on Bankruptcy ¶ 726.02[4] (15th ed. 1986). The DOE argues that the wording of § 726(a)(4) makes pecuniary loss relevant only after it is determined that a penalty is involved, referring to West Texas Marketing, 763 F.2d at 1426." }, { "docid": "21684627", "title": "", "text": "to its actual pecuniary losses. A leading treatise on bankruptcy explained the policy considerations underlying § 57j in the following terms: It is perfectly conceivable that a bankruptcy law is anxious not to curtail this sovereign power to mete out punishment and therefore treats claims for penalties on a footing of equality with, if not of precedence over, other claims. Yet there is on the other hand the natural tendency and task of the bankruptcy law to mitigate as far as possible the losses to be sustained by creditors, and under this aspect there is an undeniable equity in the postulate that participation in the estate should be denied to a creditor who has neither in some degree contributed to the distributable funds {e.g., by the governmental protection on which taxation is supposed to be based), nor has suffered a pecuniary loss by parting with something in money’s worth. It is this consideration for the bankrupt’s creditors that pervades § 57j. 3 Collier on Bankruptcy, ¶ 57.22[1], at p. 382 (14th ed. 1977). The notion that the conflicting interests of protecting the government’s power to punish and defending the rights of general creditors should be thus balanced is a recurring theme of the case law under the 1898 Act. See, e.g., Simonson v. Granquist, 369 U.S. 38, 40, 82 S.Ct. 537, 7 L.Ed.2d 557 (1962) (stating that § 57j “plainly manifests a congressional purpose to bar all claims of any kind against a bankrupt except those based on a ‘pecuniary’ loss. So understood, this section, which has been a part of the Bankruptcy Act since its enactment in 1898, is in keeping with the broad aim of the Act to provide for the conservation of the estates of insolvents.... ”); Goggin v. United States, 140 F.Supp. 557, 560 (Ct. of Claims 1956) (“[w]hen Congress, in [§ 57j], drew a distinction between a penalty of forfeiture, on the one hand, and the pecuniary loss sustained, on the other, we think it meant that an arbitrarily set amount ... should not be put in competition with the claims of the ordinary creditors" }, { "docid": "18764900", "title": "", "text": "such order or reglation.” (emphasis added) • By virtue of the statutory scheme and the regulations issued pursuant thereto, DOE may collect such restitution on behalf of persons suffering loss from overcharges through remedial orders, consent decrees, or actions in the district court. 10 C.F.R. §§ 205.192-205.199J; see also Subpart V (Special Procedures for Distribution of Refunds). New York Petroleum Corp. v. Ashland Oil, Inc., 757 F.2d 288 (Em.App.1985); Sauder v. Department of Energy, 648 F.2d 1341, 1348-1349 (Em.App.1981). To be allowed in bankruptcy a claim does not have to be first reduced to judgment, as already recognized by the Bankruptcy Court in allowing DOE’s claim subject to the determination of amount. It is manifest that whatever its amount is, DOE’s claim is not one for “any fine, penalty or forfeiture, or for multiple or exemplary, or punitive damages,” and thus cannot lawfully be relegated to the fourth priority. Fourth priority in bankruptcy is defined as: “[P]ayment of any allowed claim, whether secured or unsecured, for any fine, penalty or forfeiture, or for multiple or exemplary, or punitive damages, arising before the earlier of the order for relief or appointment of the trustee, to the extent that such fine, penalty, forfeiture, or damages are not compensation for actual pecuniary loss suffered by the holder of such claim.” 11 U.S.C. § 726(a)(4). By the clear wording of the statute, the question of whether a claim is for “compensation for actual pecuniary loss suffered by the holder of such claim” only arises when a penalty is involved. As no penalty is involved here whether the DOE suffered actual pecuniary loss is immaterial. WTM’s opinion as to the effectiveness of DOE in distributing funds collected to the actual parties who were overcharged cannot change the restitutionary character of DOE’s claim. DOE’s motion for reconsideration is hereby GRANTED. Upon reconsideration, it is hereby ORDERED: The portion of our ruling of March 27, 1985, upholding the Temporary Emergency Court of Appeals’ jurisdiction to decide this appeal is hereby confirmed. The portion of our ruling of March 27, 1985, dealing with the finality of the lower" }, { "docid": "18764912", "title": "", "text": "that the bankruptcy judge improperly subordinated the DOE’s claim because it interprets “the clear wording of the statute” to mean that the question of whether a claim is “compensation for actual pecuniary loss suffered by the holder of such claim” arises only where the claim can be characterized as a penalty. While I would not disagree with their interpretion of the plain language of the statute if we were writing upon a clean slate, I cannot ignore the case law which has interpreted the statute differently. Although I have found no appellate case which has interpreted 11 U.S.C. § 726(a)(4), several cases have interpreted its predecessor, section 57j of the Bankruptcy Act of 1898. Section 726(a)(4) of the Code and section 57j of the Act are substantially identical; the most salient difference is that section 57j provided that a claim for a penalty not representing pecuniary loss to the holder of the claim would be disallowed rather than merely subordinated as under § 726(a)(4) of the Code. There is no evidence in the legislative history of § 726(a)(4) to suggest that it should be interpreted differently than § 57j of the Act. The interpretation given § 57j by the Supreme Court is different than that which the plain language of that provision would suggest. In Simonson v. Granquist, 369 U.S. 38, 82 S.Ct. 537, 7 L.Ed.2d 557 (1962), the Court broadly interpreted the scope of § 57j in holding that provision barred a claim for tax penalties by the United States against the bankrupt’s estate. The Supreme Court did not limit § 57j to claims for a penalty or forfeiture. Instead, the Court found that § 57j “plainly manifests a congressional purpose to bar all claims of any kind against a bankrupt except those based on a ‘pecuniary’ loss.” Id. at 538-39. The Courts of Appeals have consistently interpreted § 57j in accordance with the Supreme Court’s opinion in Simonson. For example, in a case involving the right of the United States to recover excise taxes from the estate of a bankrupt, In re Unified Control Systems, Inc., 586 F.2d" }, { "docid": "16276919", "title": "", "text": "of the order for relief or the appointment of a trustee, to the extent that such fine, penalty, forfei ture, or damages are not compensation for actual pecuniary loss suffered by the holder of such claim.” Taken together, §§ 724(a) and 726(a)(4) establish a statutory basis to allow the trustee to avoid tax penalty liens of the IRS and Franchise Tax Board. Here, the tax penalty liens (with the exception of the IRS’ trust fund recovery penalty) were assessed against Mr. Bolden before the order for relief, as fines or penalties, and not as compensation for actual pecuniary loss. The tax penalties were punitive in nature and assessed to punish a failure to pay taxes. The Supreme Court has explained that the bankruptcy statute “manifests a congressional purpose to bar all claims of any kind against a bankrupt except those based on a ‘pecuniary’ loss.” Simonson v. Granquist, 369 U.S. 38, 82 S.Ct. 537, 538-39, 7 L.Ed.2d 557 (1962). The Court reasoned: “Tax penalties are imposed at least in part as punitive measures against persons who have been guilty of some default or wrong. Enforcement of penalties against the estates of bankrupts, however, would serve not to punish the delinquent taxpayers, but rather their entirely innocent creditors.” Id. at 539. This congressional intent to protect innocent creditors from delinquent taxpayers has been preserved in present § 724(a). The trustee contends further that §§ 551 and 349(b) accord him the statutory right to preserve any liens avoided under § 724(a) for the benefit of the estate. Section 551 states in pertinent part: “Any transfer avoided under section ... 724(a) of this title ... is preserved for the benefit of the estate but only with respect to property of the estate.” Section 349(b) states in pertinent part: “Unless the court, for cause, orders otherwise, a dismissal of a case other than under section 742 of this title — (1) reinstates — * * * (B) any transfer avoided under section ... 724(a) of this title .... ” Further, Collier on Bankruptcy states that § 551 applies to § 724(a) dealing with fines," }, { "docid": "19173343", "title": "", "text": "to the Fifth Circuit must be denied. Ill THE BANKRUPTCY APPEAL On July 2, 1987 Texas American commenced bankruptcy proceedings under Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 1101 et seq. The DOE filed a claim as creditor, based on the DOE’s ruling that a subsidiary of Texas American had received small refiner bias entitlements in violation of section 209 of the ESA as incorporated into section 5(a)(1) of the EPAA, 15 U.S.C. § 754(a)(1). The trustee in bankruptcy classified the claim as a non-pecuniary loss in accordance with 11 U.S.C. § 726(a)(4), and placed the entire claim in Class 9 of the Plan of Liquidation. The liability for and amount of the claim are not now disputed, and the only issue is the classification priority. The relevant classifications of the Texas American Bankruptcy Committee Plan of Liquidation are as follows: § 3.07 Class 7 (Unsecured) Claims — Allowed Claims of unsecured creditors, including without limitation, _ all Claims asserted by or on behalf of the Debenture-holders. § 3.09 Class 9 (Non-Pecuniary Loss) Claims — Allowed Claims of holders of Allowed Claims for any fine, penalty, or forfeiture, or for multiple, exemplary, or punitive damages, as further described in 11 U.S.C. § 726(a)(4). Section 726(a)(4) of the Bankruptcy Code subordinates non-pecuniary loss claims to the fourth priority: 11 U.S.C. § 726. Distribution of property of the estate (a)(4) fourth, in payment of any allowed claim, whether secured or unsecured, for any fine, penalty or forfeiture ... to the extent that such fine, penalty, or forfeiture or damages are not compensation for actual pecuniary loss suffered by the holder of such claim. Class 7 claims are superior to Class 9; there are insufficient assets to satisfy any Class 9 claim, or to satisfy fully the Class 7 claims. The DOE argued that since its claim for recovery under ESA section 209 was for “restitution” it should be classified with the unsecured claims of Class 7. The bankruptcy court, however, agreed with the trustee that Class 9 was the appropriate classification. The bankruptcy court held that since this DOE claim" }, { "docid": "21684628", "title": "", "text": "that the conflicting interests of protecting the government’s power to punish and defending the rights of general creditors should be thus balanced is a recurring theme of the case law under the 1898 Act. See, e.g., Simonson v. Granquist, 369 U.S. 38, 40, 82 S.Ct. 537, 7 L.Ed.2d 557 (1962) (stating that § 57j “plainly manifests a congressional purpose to bar all claims of any kind against a bankrupt except those based on a ‘pecuniary’ loss. So understood, this section, which has been a part of the Bankruptcy Act since its enactment in 1898, is in keeping with the broad aim of the Act to provide for the conservation of the estates of insolvents.... ”); Goggin v. United States, 140 F.Supp. 557, 560 (Ct. of Claims 1956) (“[w]hen Congress, in [§ 57j], drew a distinction between a penalty of forfeiture, on the one hand, and the pecuniary loss sustained, on the other, we think it meant that an arbitrarily set amount ... should not be put in competition with the claims of the ordinary creditors of the bankrupt.”), vacated on other grounds, 138 Ct.Cl. 279, 152 F.Supp. 78 (1957). Thus, under pre-1978 bankruptcy statutes and judicial decisions, penalties and forfeitures owed to the government were, for the most part, not allowed as claims. The correlative question whether such debts should be dischargeable was firmly settled by the judiciary long before the enactment of the Code in 1978. Because penalties and forfeitures owed to the government were essentially not allowable, courts generally exempted them from discharge as a way of holding debtors responsible for such penalties and forfeitures while avoiding interference with the results of state criminal proceedings. See United States v. Ron Pair Enters., Inc., 489 U.S. 235, 245, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); Kelly, 479 U.S. at 44-47, 107 S.Ct. 353; Tri-State Clinical Laboratories, 178 F.3d at 695. As the Kelly Court stated, “[djespite the clear statutory language, most courts refused to allow a discharge in bankruptcy to affect the judgment of a state criminal court.” Kelly, 479 U.S. at 45, 107 S.Ct. 353. This principle of" }, { "docid": "18764913", "title": "", "text": "of § 726(a)(4) to suggest that it should be interpreted differently than § 57j of the Act. The interpretation given § 57j by the Supreme Court is different than that which the plain language of that provision would suggest. In Simonson v. Granquist, 369 U.S. 38, 82 S.Ct. 537, 7 L.Ed.2d 557 (1962), the Court broadly interpreted the scope of § 57j in holding that provision barred a claim for tax penalties by the United States against the bankrupt’s estate. The Supreme Court did not limit § 57j to claims for a penalty or forfeiture. Instead, the Court found that § 57j “plainly manifests a congressional purpose to bar all claims of any kind against a bankrupt except those based on a ‘pecuniary’ loss.” Id. at 538-39. The Courts of Appeals have consistently interpreted § 57j in accordance with the Supreme Court’s opinion in Simonson. For example, in a case involving the right of the United States to recover excise taxes from the estate of a bankrupt, In re Unified Control Systems, Inc., 586 F.2d 1036 (5th Cir.1978), the district court had held that “[i]f Congress designates an exaction a tax, then that tax is not a § 57(j) [sic] penalty if it is a constitutional exercise of the taxing power under Article I, Section 8, Clause 1, of the United States Constitution.” The Fifth Circuit, however, reversed: We cannot agree with the suggestion that the label placed upon an imposition in a revenue measure is decisive in determining its character.... We disagree, too, with the conclusion that a tax under the Constitution cannot be a penalty. Section 57j places penalties in a category quite different from debts, and the character of a penalty cannot be changed by calling it a tax. The words of the statute precisely reveal the purpose of Congress not to exercise its sovereign right to a claim against a bankrupt except to the extent that there has been a pecuniary loss. Id. at 1037-38 (footnote omitted). Accord United States Department of Interior v. Elliott, 761 F.2d 168, 170 (4th Cir.1985) (“language of section 57(j) [sic]" }, { "docid": "16390170", "title": "", "text": "pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby and such interest as may have accrued on the amount of such loss according to law. 11 U.S.C. § 93(5), 66 Stat. 424 (1952) (repealed 1979) (original version at Bankruptcy Act of 1898, ch. 541, § 57(5), 30 Stat. 561). Interpreting this former section, the United States Supreme Court established conclusively that prepetition non-compensatory penalty claims, whether secured or unsecured could not be asserted against the debtor’s estate. Simonson v. Granquist, 369 U.S. 38, 40, 82 S.Ct. 537, 538, 7 L.Ed.2d 557 (1962). The reason for the strict prohibition against penalties stated by the Simonson Court was as follows: [unquestionably [the] ... language [of § 57j] is broad enough to bar all penalties, whether secured by lien or not, and we think the section was designed to do precisely that. For it plainly manifests a congressional purpose to bar all claims of any kind against a bankrupt except those based on a “pecuniary” loss. So understood, this section, which has been a part of the Bankruptcy Act since its enactment in 1898, is in keeping with the broad aim of the Act to provide for the conservation of the estates of insolvents to the end that there may be as equitable a distribution of assets as is consistent with the type of claims involved. Moreover, the prohibition of all tax penalties in bankruptcy is wholly consistent with the policy of the penalty provisions themselves. Tax penalties are imposed at least in part as punitive measures against persons who have been guilty of some default or wrong. Enforcement of penalties against the estates of bankrupts, however, would serve not to punish the delinquent taxpayers, but rather their entirely innocent creditors. Id. at 40-41, 82 S.Ct. at 538-539 (emphasis supplied). Because the Bankruptcy Reform Act of 1978 does not contain a provision similar to former section 57(j), which governed the allowability of penalty claims, we look for guidance on the tax penalty issue to the provisions of sections" }, { "docid": "19173359", "title": "", "text": "to clean waters polluted by the defendant, and sought to recover the actual cost of the cleanup. In contrast, the government in this case expended no funds and suffered no actual loss; yet the overcharges are recovered by the government from the wrongdoer, and retained for governmental use. The Bankruptcy Code serves a quite different public purpose. In effecting the principles of creditors’ and debtors’ rights and obligations, one of the firmest of principles is that creditors who suffered a pecuniary loss to the bankrupt have priority of claim over those who suffered no pecuniary loss. See Simonson v. Granquist, 369 U.S. 38, 40-41, 82 S.Ct. 537, 538-39, 7 L.Ed.2d 557 (1962) (discussing purpose of bankruptcy laws to bar claims against a bankrupt except those based on a pecuniary loss); 11 U.S.C. § 726(a); 4 Collier on Bankruptcy ¶ 726.02[4] (15th ed. 1986). The DOE argues that the wording of § 726(a)(4) makes pecuniary loss relevant only after it is determined that a penalty is involved, referring to West Texas Marketing, 763 F.2d at 1426. However, when the PODRA, enacted after West Texas Marketing was decided, recognized that restitution was not possible and authorized pay ment to public treasuries of the unrestored portion of the recovered overcharges, the character of that portion of the recovery, for the purpose of bankruptcy relationships, was changed in a significant way. Restitution requires not only disgorgement of illegal profits, but also their return to the persons who suffered the loss. See Kelly, 479 U.S. at 51-52, 107 S.Ct. at 362 (“[Restitution is forwarded to the victim, and may be calculated by reference to the amount of harm the offender has caused.”) When those injured are not restored to them previous position the disgorgement partakes not of restitution, but of recovery by government of the illegal gains for remedial and enforcement purposes. Thus the statutory remedy under the PODRA, from the bankruptcy viewpoint, encompasses two distinct classes of potential creditors: the specific persons who suffered an actual pecuniary loss, and the governments who receive the unclaimed residue. Cf. In re Hirsch-Franklin Enters., Inc., 63 B.R." } ]

[ { "docid": "15963150", "title": "", "text": "could have been brought” within the meaning of § 1406(a) and, therefore, the action must be dismissed. Plaintiff contends that the action should not be dismissed but transferred under § 1406(a). However, where a federal venue statute lays venue for an action in a particular district, the existence of a forum-selection clause providing to the contrary does not make that district “wrong” within the meaning of § 1406(a). Moore’s Federal Practice ¶ 0.140[1.—4] at n. 13 (1974); see Stewart Organization, 810 F.2d at 1073 (en banc) (Tjoflat, C.J. specially concurring), aff'd, — U.S. —, — & n. 8, 108 S.Ct. 2239, 2243 & n. 8 (§ 1404(a) governs effect of forum-selection clause). Cf Leasing Serv. Corp. v. Broetje, 545 F.Supp. 362, 369 (S.D.N.Y.1982) (analyzing forum selection clause under § 1404(a)). Contra, D’antuono, 570 F.Supp. at 713 (wrong venue under § 1406(a) in view of violation of forum-selection agreement); Hoffman v. Borroughs, 571 F.Supp. 545 (N.D.Tex.1982) (same). Defendant does not deny that plaintiff is a resident of Connecticut. See Complaint, TT1. As jurisdiction over this action is founded solely upon diversity, 28 U.S.C. § 1391(a) authorizes venue in the District of Connecticut. Therefore, this cannot be the “wrong district” for purposes of § 1406(a), and the action can be neither dismissed nor transferred under that section. However, as the effect of such a clause is controlled by § 1404(a), Stewart Organization, — U.S. at —, 108 S.Ct. at 2244-45, plaintiff’s motion to transfer will be considered as if made thereunder. Defendant argues that the forum-selection clause provides venue exclusively in the state courts of New York and seeks a dismissal to enforce that requirement. Plaintiff contends that the forum clause is not exclusive and that the court has discretion to transfer the action to the Eastern District. Thus, the court is presented with the choice between transfer to the Eastern District under § 1404(a) or dismissal for forum non conveniens in favor of the state courts of New York. See Bryant Elec. Co. v. City of Fredricksburg, 762 F.2d 1192, 1196-97 (4th Cir.1985) (federal court declined to exercise jurisdiction where forum" } ]

[ { "docid": "8166863", "title": "", "text": "transfer of an action where the forum selection clause allows the parties to bring suit in a federal court. While the action begun in federal court was dismissed, the district court did not have the option of transferring the ease to another federal court. The state action was remanded. See also Karl Koch Erecting Company v. New York Convention Center Dev. Corp., 838 F.2d 656, 659 (2d Cir.1988) (in two actions stemming from contract containing forum selection clause limiting suit to state court, action begun in state court remanded pursuant to 28 U.S.C. § 1447(c), action begun in federal court dismissed). In the case at bar, the forum selection clause does not limit plaintiff to a state court, since suit may also pursuant to agreement be brought in the federal district court in Maryland. The issue here is whether a party may limit the court to considering only dismissal rather than transfer and, to the extent that there is a difference, to the standard of Carnival Cruise and The Bremen, solely by virtue of language in which he casts his motion. Such a result would be inappropriate, particularly in light of 28 U.S.C. § 1406, which allows transfer of an action rather than dismissal “in the interests of justice.” Although courts have often enforced forum selection clauses by granting a motion to dismiss for improper venue, the better view is that forum selection clauses do not render venue improper and thus may not be enforced by a motion to dismiss for improper venue. See Lambert v. Kysar, 983 F.2d 1110, 1113 n. 2 (1st Cir.1993) (motion to dismiss an action on the basis of a forum selection clause must be brought under 12(b)(6) rather than 12(b)(3)); but cf. Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953 (10th Cir.1992) (noting that forum selection clauses are “frequently” analyzed as motions to dismiss for improper venue under 12(b)(3)). As noted above, the decision in Stewart provides some support for this position, and the Court of Appeals has not ruled to the contrary, although district courts have. See, e.g., Medoil Corp. v. Citicorp," }, { "docid": "23093357", "title": "", "text": "Id. at 32, 108 S.Ct. at 2245. Furthermore, it held that the presence of a forum selection clause was but one factor in the district court’s consideration of fairness and convenience under section 1404(a). Id. at 31, 108 S.Ct. at 2244. There is no basis, as Jones would have it, to import the discretionary federal standard of section 1404(a) discussed in Stewart to the instant cases. A motion to transfer an action to another federal district pursuant to section 1404(a) calls for an “ ‘individualized, case-by-case consideration of convenience and fairness.’ ” Id. at 29, 108 S.Ct. at 2243 (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 812, 11 L.Ed.2d 945 (1964)). The same broad-based balancing is not appropriate where, as here, a party seeks to have an action dismissed or remanded to state court, rather than transferred, on the basis of a forum selection clause that purports to preclude litigation from a venue other than a specific state court. Thus, the highly discretionary standard enunciated in Stewart is inapplicable to the enforceability of the forum selection clauses in the instant cases. Jones alternatively contends that under the doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), state law, rather than the federal rule in Bremen, should control. We find this argument unpersuasive. Questions of venue and the enforcement of forum selection clauses are essentially procedural, rather than substantive, in nature. Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 513 (9th Cir.1988); see Stewart, 487 U.S. at 32, 108 S.Ct. at 2245. Moreover, this and other circuits have continued to apply the Bremen standard, rather than state law, in diversity cases after Stewart. Seward v. Devine, 888 F.2d 957, 962 (2d Cir.1989) (applying Bremen without reference to Stewart); Manetti-Farrow, 858 F.2d at 513. In short, we find nothing in Stewart or anywhere else that would compel us to reject the well established rule of this Circuit that Bremen applies with equal force in diversity cases. Jones concedes that she cannot make the showing required by Bremen to" }, { "docid": "7250270", "title": "", "text": "F.3d 531, 535 (6th Cir.2002). Recognizing that public law can be circumscribed but not overwritten by private ordering, the Sixth Circuit instructs that “whether a forum-selection clause should be enforced is a matter of contract, not an issue of proper venue [under § 1391].” Id.; see also Ricoh, 487 U.S. at 28 n. 8, 108 S.Ct. 2239 (suggesting in dictum that venue is “improper” only where the statutory venue requirements have not been met). That is, a private agreement cannot rewrite the statutorily enumerated “proper” venues. Notwithstanding a forum selection clause, if the venue is “proper” under § 1391, a motion to dismiss for improper venue “will not lie.” Kerobo, 285 F.3d at 536. Here, Defendants do not dispute that they “reside” in this judicial district for purposes of § 1391. Thus, notwithstanding the forum selection clause, venue is “proper” for purposes of § 1391. Defendants’ motion to dismiss will be denied. Ill A Defendants’ motion to transfer, however, will be granted. Section § 1404(a) provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). This section, the Supreme Court explains, “is intended to place discretion in the district court to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness.” Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (quotation marks omitted) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)). “The presence of a forum-selection clause,” the Court emphasizes, “will be a significant factor that figures centrally in the district court’s calculus.” Id. Indeed, “the forum clause should control absent a strong showing that it should be set aside.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); see Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111 S.Ct. 1522, 113" }, { "docid": "22255569", "title": "", "text": "stipulation in which the parties join in asking the court to give effect to their agreement by declining to exercise its jurisdiction”). Instead, we hold that motions to dismiss upon the basis of choice-of-forum and choice-of-law clauses are properly brought pursuant to Fed.R.Civ.P. 12(b)(3) as motions to dismiss for improper venue. We are aware that the First Circuit has treated motions to dismiss upon the basis of forum selection clauses as Rule 12(b)(6) motions urging dismissal for failure to state a claim upon which relief can be granted. See Lambert v. Kysar, 983 F.2d 1110, 1112 n.l (1st Cir.1993); LFC Lessors, Inc. v. Pacific Sewer Maintenance, 739 F.2d 4, 6-7 (1st Cir.1984). Although we perceive no significant doctrinal error in that approach, we consider Rule 12(b)(3) a more appropriate vehicle through which to assert the motion to dismiss. We find support for this conclusion in the Supreme Court’s decision in Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 32, 108 S.Ct. 2239, 2245, 101 L.Ed.2d 22 (1988), in which the Court held that 28 U.S.C. § 1404(a), which vests in the district court discretion to transfer a civil action to “any other district or division where it might have been brought,” controls the request of a party in a diversity suit to give effect to a contractual forum-selection clause by transferring the action. Although the Supreme Court did not decide the precise question presented in the case before us, the Court’s conclusion that the federal transfer-of-venue statute governs district court decisions in enforcing forum-selection clauses provides support for our view that motions to dismiss based upon forum-selection clauses are cognizable as motions to dismiss for improper venue. See 487 U.S. at 29-30, 108 S.Ct. at 2244 (“The flexible and individualized analysis Congress prescribed in § 1404(a) thus encompasses consideration of the parties’ private expression of their venue preferences.”) (emphasis added); see also 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3803.1 (2d ed. 1986 & Supp. 1998) (discussing forum-selection clauses as “Contractual Modification” of venue). Although ordinarily we review “the dismissal" }, { "docid": "15079841", "title": "", "text": "In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), two passengers on a cruise brought a negligence action against the cruise operator. The plaintiffs sued in their home state of Washington. The defendant moved for summary judgment, claiming that the forum selection clause on the cruise tickets required suit to be brought in Florida, and alternatively that the Washington court lacked personal jurisdiction over defendant. Id. at 586-88, 111 S.Ct. at 1524. The district court granted summary judgment based on the personal jurisdiction argument. Id. The court of appeals reversed, holding that personal jurisdiction existed, and that the forum selection clause should not be enforced. Id. at 586-90, 111 S.Ct. at 1524-25. The Supreme Court reversed the court of appeals without reaching the personal jurisdiction issue, in effect reinstating the dismissal of the suit based on the forum selection clause. Id. at 588-90, 596-98, 111 S.Ct. at 1525, 1529. B. Determining the Dismissal Motion We return to the question of whether the Bremen test or something different should be applied in a diversity case upon a motion to dismiss. In Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988), an action filed in federal court under diversity jurisdiction, the defendant moved to dismiss or transfer venue based on a forum selection clause. The Court held that federal rather than state law governed this issue, and that under federal law the decision whether to transfer venue is governed by 28 U.S.C. § 1404(a). Id. at 27-29, 108 S.Ct. at 2243. The Court instructed that under this statute the court must make an “individualized, case-by-case consideration of convenience and fairness.” Id. at 29, 108 S.Ct. at 2244 (citation omitted). It should “weigh in the balance a number of case-specific factors,” of which the forum selection clause is “a significant factor that figures centrally in the district court’s calculus.” Id. The court should also consider “the convenience of the witnesses and those public-interest factors of systemic integrity and fairness under the heading of ‘the interest of justice.’ ”" }, { "docid": "8166861", "title": "", "text": "in the Supreme Court’s opinion, thereby apparently resulting in a dismissal of the action without ever considering the possibility of transfer or what standard might apply. Shute v. Carnival Cruise Lines, 934 F.2d 1091 (9th Cir.1991). The Court of Appeals for this Circuit has not specifically addressed the issue of whether a forum selection clause may be enforced by dismissing an action where transfer is possible. Defendant relies heavily on Jones v. Weibrecht, 901 F.2d 17 (2d Cir.1990), a decision handed down between Stewart and Carnival, for the proposition that the only option here is to dismiss the action without considering transfer. In Jones, Jones and Weibrecht signed two agreements containing a forum selection clause limiting all litigation on the basis of the agreements to the Supreme Court of New York, Essex County. When a dispute arose, Jones commenced a contract action in federal court seeking a recision of the agreements. Weibrecht then filed suit in the Supreme Court of New York, Essex County, alleging breach of contract. Jones removed that action to the same federal court on the basis of diversity jurisdiction. In affirming the district court’s dismissal of the complaint filed in federal court and the remand of the other action to state court on the basis of the forum selection clause, the Court of Appeals held that the standard of The Bremen, rather than Stewart, applies to the analysis of forum selection clauses in diversity cases. The Court of Appeals reasoned that [a] motion to transfer an action to another federal district pursuant to [28 U.S.C.] section 1404(a) calls for an ‘individualized, case-by-ease consideration of convenience and fairness.’ The same broad-based balancing is not appropriate where, as here, a party seeks to have an action dismissed or remanded to state court, rather than transferred, on the basis of a forum selection clause that purports to preclude litigation from a venue other than a specific state court. The Ninth Circuit took the same view of the applicability of Stewart in Manetti-Farrow v. Gucci Am., 858 F.2d 509, 512 n. 2 (9th Cir.1988). Jones does not, however, preclude the" }, { "docid": "11154051", "title": "", "text": "Farmland. See Stephens v. Entre Computer Centers, Inc., 696 F.Supp. 636, 640 n. 5 (N.D.Ga.1988) (stating that an exception for a fiduciary relationship \"does not seem warranted and appears to the Court to be inconsistent with the Scherk rule”). . In Anselmo v. Univision Station Group, Inc., 1993 WL 17173 (S.D.N.Y. January 15, 1993), the court actually decided that it would transfer the case pursuant to 28 U.S.C. § 1404(a) on the basis of a forum selection clause unless the plaintiffs filed a Second Amended Complaint withdrawing those claims held to be governed by that clause. . Professors Wright & Miller note without discussion or comment that while objections to venue typically stem from an alleged failure to adhere to the requirements specified in 28 U.S.C. § 1391 or some other statutory provision, in recent years there have been a number of venue motions based on forum selection clauses. 5A C. Wright & A. Miller, Federal Practice and Procedure: Civil 2d § 1352 at 261-63 (1990). . Canon has a distribution center in Jamesburg, New Jersey, where Canon personnel conducted a substantial amount of business with NMS personnel. See Shonk Aff. at ¶ 18. . Canon argues that this court may, \"in its discretion, determine that the most appropriate means of enforcing the parties’ forum selection agreements is by dismissal of the action so that it may be re-commenced in New York.” Canon’s Reply Brief at 16. The cases it cites in support of this contention, do not, however, provide the \"clear authority” to dismiss under Rule 12(b)(3) based upon a forum selection clause, id. at 16 n. 8, which Canon asserts they do. In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), the defendant had moved for summary judgment under Rule 56 based upon a forum selection clause, not to dismiss under Rule 12(b)(3). Id. at -, 111 S.Ct. at 1524. In In re Diaz Contracting, Inc., 817 F.2d 1047 (3d Cir.1987), the defendant moved to dismiss on the basis of a forum selection clause. It is not clear, however, whether" }, { "docid": "19688418", "title": "", "text": "and most efficient resolution of this litigation, a task that was often needlessly complicated throughout by what appeared to the court to be ongoing legal posturing caused by the inability of counsel for both parties to get along. . At the hearing on the sua sponte motion to transfer, American argued that a transfer of venue at this stage of the litigation was not only warranted in this case but, was in fact, mandated by Jones v. Weibrecht, 901 F.2d 17 (2d Cir.1990). Specifically, American contended that Jones, which was decided April 11, 1990, one day before this court issued its ruling denying American's motion to transfer venue, mandates that a forum selection clause be given full force in determining the proper venue of a diversity case unless the opposing party can demonstrate that the enforcement of that clause would be unreasonable and unjust or that the clause was obtained through fraud or overreaching. See Id. at 18, 19, citing M/S BREMEN v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); Seward v. Devine, 888 F.2d 957, 962 (2d Cir. 1989) (applying Bremen without reference to Stewart); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 513 (9th Cir.1988). American asserted that Jones held that the usual, broad based, discretionary balancing normally performed when determining a transfer of venue did not apply to a case, such as this one, where a valid forum selection clause specified the appropriate venue. Thus, American concluded that the court committed reversible error when, relying on the Supreme Court's ruling in Stewart, the court refused to enforce per se the contract's specification of venue in Harris County, Texas set forth in the FSC and, instead, balancing various factors, exercised its discretion pursuant to § 1404(a) not to grant American’s motion to transfer. The court disagrees. Despite the initial appearance of plausibility, American's reading of Jones is in error. Jones involved alternative motions to dismiss and/or remand to state court predicated on a forum selection clause that precluded \"litigation from a venue other than a specific state court.” Jones, 901 F.2d" }, { "docid": "15079840", "title": "", "text": "shown by the resisting party to be ‘unreasonable’ under the circumstances,” and that courts should enforce such clauses unless the resisting party “could clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.” Id. at 9-11, 15, 92 S.Ct. at 1913, 1916. We have applied Bremen to transfer motions in nonadmiralty cases. E.g., Seattle-First Nat’l Bank v. Manges, 900 F.2d 795, 799 (5th Cir.1990); In re Fireman’s Fund Ins. Cos., 588 F.2d 93, 95 (5th Cir.1979). The district court applied the Bremen case here. We see no justification for regarding the scope of 28 U.S.C. § 1406(a) as to dismissal any narrower than § 1404(a) as to transfer. This court has upheld dismissal of a suit as an appropriate means of enforcing a forum selection clause under Bremen. Zapata Marine Serv. v. O/Y Finnlines, Ltd., 571 F.2d 208 (5th Cir.1978). In another admiralty case the Supreme Court implicitly approved of dismissal of a case as a means of enforcing a forum selection clause. In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), two passengers on a cruise brought a negligence action against the cruise operator. The plaintiffs sued in their home state of Washington. The defendant moved for summary judgment, claiming that the forum selection clause on the cruise tickets required suit to be brought in Florida, and alternatively that the Washington court lacked personal jurisdiction over defendant. Id. at 586-88, 111 S.Ct. at 1524. The district court granted summary judgment based on the personal jurisdiction argument. Id. The court of appeals reversed, holding that personal jurisdiction existed, and that the forum selection clause should not be enforced. Id. at 586-90, 111 S.Ct. at 1524-25. The Supreme Court reversed the court of appeals without reaching the personal jurisdiction issue, in effect reinstating the dismissal of the suit based on the forum selection clause. Id. at 588-90, 596-98, 111 S.Ct. at 1525, 1529. B. Determining the Dismissal Motion We return to the question of whether the Bremen test or something different" }, { "docid": "8166862", "title": "", "text": "federal court on the basis of diversity jurisdiction. In affirming the district court’s dismissal of the complaint filed in federal court and the remand of the other action to state court on the basis of the forum selection clause, the Court of Appeals held that the standard of The Bremen, rather than Stewart, applies to the analysis of forum selection clauses in diversity cases. The Court of Appeals reasoned that [a] motion to transfer an action to another federal district pursuant to [28 U.S.C.] section 1404(a) calls for an ‘individualized, case-by-ease consideration of convenience and fairness.’ The same broad-based balancing is not appropriate where, as here, a party seeks to have an action dismissed or remanded to state court, rather than transferred, on the basis of a forum selection clause that purports to preclude litigation from a venue other than a specific state court. The Ninth Circuit took the same view of the applicability of Stewart in Manetti-Farrow v. Gucci Am., 858 F.2d 509, 512 n. 2 (9th Cir.1988). Jones does not, however, preclude the transfer of an action where the forum selection clause allows the parties to bring suit in a federal court. While the action begun in federal court was dismissed, the district court did not have the option of transferring the ease to another federal court. The state action was remanded. See also Karl Koch Erecting Company v. New York Convention Center Dev. Corp., 838 F.2d 656, 659 (2d Cir.1988) (in two actions stemming from contract containing forum selection clause limiting suit to state court, action begun in state court remanded pursuant to 28 U.S.C. § 1447(c), action begun in federal court dismissed). In the case at bar, the forum selection clause does not limit plaintiff to a state court, since suit may also pursuant to agreement be brought in the federal district court in Maryland. The issue here is whether a party may limit the court to considering only dismissal rather than transfer and, to the extent that there is a difference, to the standard of Carnival Cruise and The Bremen, solely by virtue of language" }, { "docid": "8166867", "title": "", "text": "transfer under § 1404. Where an action has been removed from state court, “venue,” to the extent that the concept even applies to actions begun in state court, is proper in this Court, since a case may be removed to the federal district court “for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). The right to limit the resolution of disputes to a particular forum is one that is created through an agreement by the parties, not by statute. See National Micrographics, 825 F.Supp. at 679. Accordingly, since defendant solely moved for dismissal for improper venue, the motion to dismiss is denied. However, since a court may sua sponte consider transfer after giving both parties a chance to brief the issue, see Starnes v. McGuire, 512 F.2d 918, 933-34 (D.C.Cir.1974) (en banc), it is appropriate to consider the application of § 1404(a) analysis now rather than wait for defendant’s inevitable motion to transfer. Under the Stewart analysis, federal law governs the enforceability of forum selection clauses, and such clauses are to be a “significant factor” in the transfer analysis, but the convenience of the parties, the convenience of the witnesses, and the interests of justice must also be considered. See Falconwood Financial Corp. v. Griffin, 838 F.Supp. 836, 840 (S.D.N.Y.1993). Stewart did not change the general rule, later reinforced by Carnival Cruise, that forum selection clauses are generally enforced. In a motion to transfer, the moving party generally bears the burden of showing that the forum should be changed. See Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 281 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). Although plaintiffs choice of forum would normally be given deference, once a mandatory forum selection clause is determined to be valid, the plaintiff bears the burden of showing why the contractual provision should not be enforced. See Weiss v. Columbia Pictures, 801 F.Supp. 1276, 1278 (S.D.N.Y.1992). Despite plaintiffs allegation that the contract at issue here was merely a form contract which both sides acknowledge was used by" }, { "docid": "19688420", "title": "", "text": "at 19. Jones held only that § 1404(a)’s \"broad based balancing is not appropriate where, as here, a party seeks to have an action dismissed or remanded to state court, rather than transferred, on the basis of a forum selection clause ...” Id. (emphasis added). Indeed, Jones is completely in accord with the court’s earlier reliance on Stewart and its subsequent refusal to enforce the FSC. Jones directly quotes Stewart for the proposition that \"[a] motion to transfer an action to another federal district pursuant to section 1404(a) calls for an ‘individualized, case by case consideration of convenience and fairness.’\" Id. Jones, however, is quick to distinguish itself from Stewart noting that Stewart involved a motion to transfer Under § 1404(a), whereas its-consideration of a forum selection clause was pursuant to a motion to dismiss and/or remand. Id. The cases cited by Jones, moreover, including Bremen, are inapposite to the situation here. Those cases held only that a forum selection clause should be enforced unless shown to be unreasonable in evaluating motions to dismiss or remand. See e.g., Bremen, 407 U.S. at 7, 20, 92 S.Ct. at 1912, 1918 (remanding case for failure by lower courts to give forum selection clause due weight in considering a motion to dismiss for forum non conveniens); Seward, 888 F.2d at 961 (affirming district court’s dismissal of contract claims pursuant to a forum selection clause); Manetti-Farrow, 858 F.2d at 510 (affirming dismissal of action pursuant to a forum selection clause requiring the case to be litigated in Florence, Italy.) In contrast, this case involves a motion to transfer venue to another district court not a motion to dismiss for forum non conveniens or a motion to remand. In considering a motion to transfer venue to another district court pursuant to § 1404(a), therefore, there is nothing in Jones, Bremen, or the cases cited therein to suggest that the balancing approach set forth in Stewart and applied by this court in its earlier ruling is bad law. See Stewart, 487 U.S. at 28-29, 108 S.Ct. at 2244. To the contrary, to predicate a transfer of" }, { "docid": "9441851", "title": "", "text": "1112n. 1 (1st Cir.1993) (dismissal based on forum selection clause specifying state forum grounded on Fed.R.Civ.P. 12(b)(6), not 12(b)(3)); Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1289 (11th Cir.1998) (collecting cases adopting each rationale and where forum selection clauses specified non-federal forums). . Walker’s interpretation of Ninth Circuit precedent (Walker explicitly relied on Argueta v. Banco Mexicano, S.A., 87 F.3d 320 (9th Cir.1996)) finds further support in Shute v. Carnival Cruise Lines, 934 F.2d 1091 (9th Cir.1991) (\"Shute II\"), despite Shute's somewhat complicated procedural history. The Shute litigation began with a summary judgment motion, in which the defendant alleged: (i) that the District Court, in the Western District of Washington, lacked personal jurisdiction; and (ii) that a forum selection clause permitted suit only in Florida's state or federal courts. In the alternative, the defendant requested that the case be transferred to the Southern District of Florida. See Shute v. Carnival Cruise Lines, 897 F.2d 377, 379 (9th Cir.1990) (\"Shute I\"). The District Court granted summary judgment on personal jurisdiction grounds without addressing the forum selection clause, and the Ninth Circuit reversed in Shute I. In Shute I, the Court of Appeals held that personal jurisdiction was proper, but that, since the forum selection clause was unreasonable, that clause was legally unenforceable. The Supreme Court granted certiorari and reversed, holding that the forum selection clause was reasonable and enforceable, though the Court did not address whether the proper mechanism for such enforcement was summary judgment under Rule 56 or transfer under § 1406(a). See Carnival Cruise Lines v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). On remand, defendant’s request for transfer was not discussed; instead, the District Court’s original decision granting summary judgment was simply affirmed. See Shute II, 934 F.2d at 1091. By so doing, the Ninth Circuit necessarily, though implicitly, affirmed the District Court’s authority to grant summary judgment, instead of granting transfer, in enforcing a forum selection clause that would have allowed litigation to proceed in the Southern District of Florida. Although the Shute litigation dealt only with summary judgment motions under" }, { "docid": "19688419", "title": "", "text": "(1972); Seward v. Devine, 888 F.2d 957, 962 (2d Cir. 1989) (applying Bremen without reference to Stewart); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 513 (9th Cir.1988). American asserted that Jones held that the usual, broad based, discretionary balancing normally performed when determining a transfer of venue did not apply to a case, such as this one, where a valid forum selection clause specified the appropriate venue. Thus, American concluded that the court committed reversible error when, relying on the Supreme Court's ruling in Stewart, the court refused to enforce per se the contract's specification of venue in Harris County, Texas set forth in the FSC and, instead, balancing various factors, exercised its discretion pursuant to § 1404(a) not to grant American’s motion to transfer. The court disagrees. Despite the initial appearance of plausibility, American's reading of Jones is in error. Jones involved alternative motions to dismiss and/or remand to state court predicated on a forum selection clause that precluded \"litigation from a venue other than a specific state court.” Jones, 901 F.2d at 19. Jones held only that § 1404(a)’s \"broad based balancing is not appropriate where, as here, a party seeks to have an action dismissed or remanded to state court, rather than transferred, on the basis of a forum selection clause ...” Id. (emphasis added). Indeed, Jones is completely in accord with the court’s earlier reliance on Stewart and its subsequent refusal to enforce the FSC. Jones directly quotes Stewart for the proposition that \"[a] motion to transfer an action to another federal district pursuant to section 1404(a) calls for an ‘individualized, case by case consideration of convenience and fairness.’\" Id. Jones, however, is quick to distinguish itself from Stewart noting that Stewart involved a motion to transfer Under § 1404(a), whereas its-consideration of a forum selection clause was pursuant to a motion to dismiss and/or remand. Id. The cases cited by Jones, moreover, including Bremen, are inapposite to the situation here. Those cases held only that a forum selection clause should be enforced unless shown to be unreasonable in evaluating motions to dismiss or" }, { "docid": "9441841", "title": "", "text": "on the merits of this appeal, we will dismiss Salovaara’s appeal regarding Jackson as moot. II. Did the District Court properly dismiss the claim against Lazard because of the forum selection clause in the Indemnification Agreement? Lazard claims that a forum selection clause covers the dispute between it and the South Street Funds, and requires that this lawsuit be brought either in the District Court for the Southern District of New York or in a New York State court located within New York County. In reaching its decision to dismiss on this basis, the District Court had to interpret the forum selection clause to see whether it applied to the subject matter of .this dispute. The District Court also had to decide on the proper procedure for enforcing a forum selection clause. We will address the procedural question first, followed by the question of whether the District Court correctly interpreted the forum selection clause. A. The Procedure for Enforcing A Forum Selection Clause It is clear that a party may bring a motion to transfer from the initial federal forum to another federal court based on a valid forum selection clause. Such a motion is governed by 28 U.S.C. § 1404(a). See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 32, 108 S.Ct. 2239, 2245, 101 L.Ed.2d 22 (1988). Transfer is not available, however, when a forum selection clause specifies a non-federal forum. In that ease, it seems the district court would have no choice but to dismiss the action so it can be filed in the appropriate forum so long as dismissal would be in the interests of justice. See, e.g., Instrumentation Assoc., Inc. v. Madsen Elec. (Canada) Ltd., 859 F.2d 4, 6 n. 4 (3d Cir.1988); Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341 (3d Cir.1966);17 Moore’s Federal Practice, § 111.04[4][c] (Matthew Bender 3d ed.). It is also clear that where venue would be proper in the initial forum court, provided no forum selection clause covered the subject matter of the lawsuit, it is inappropriate to dismiss pursuant to 28 U.S.C. § 1406 (allowing dismissal" }, { "docid": "9441842", "title": "", "text": "from the initial federal forum to another federal court based on a valid forum selection clause. Such a motion is governed by 28 U.S.C. § 1404(a). See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 32, 108 S.Ct. 2239, 2245, 101 L.Ed.2d 22 (1988). Transfer is not available, however, when a forum selection clause specifies a non-federal forum. In that ease, it seems the district court would have no choice but to dismiss the action so it can be filed in the appropriate forum so long as dismissal would be in the interests of justice. See, e.g., Instrumentation Assoc., Inc. v. Madsen Elec. (Canada) Ltd., 859 F.2d 4, 6 n. 4 (3d Cir.1988); Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341 (3d Cir.1966);17 Moore’s Federal Practice, § 111.04[4][c] (Matthew Bender 3d ed.). It is also clear that where venue would be proper in the initial forum court, provided no forum selection clause covered the subject matter of the lawsuit, it is inappropriate to dismiss pursuant to 28 U.S.C. § 1406 (allowing dismissal based on improper venue). See Jumara, 55 F.3d at 878-79. In the present case, the forum selection clause specified that suit could be brought' either in state courts located within New York County or in the United States District Court for the Southern District of New York. Lazard has not filed a motion for transfer, but rather a motion to dismiss based on the forum selection clause. The District Court treated this as a motion to dismiss under Fed.R.Civ.P. 12(b)(6), but still employed the balancing test of 28 U.S.C. § 1404(a) to determine whether dismissal based on the forum selection clause was proper. The District Court found that dismissal was proper. Salovaara appeals, arguing that Lazard’s motion should have been construed as a motion for transfer because the forum selection clause allowed suit to be filed in another federal forum. He notes that dismissal is only warranted when the forum selection clause prevents filing in any federal court. See 17 Moore’s Federal Practice, § 111.04[4][c]; Reynolds Publishers, Inc. v. Graphics Fin. Group, Ltd., 938 F.Supp." }, { "docid": "19723097", "title": "", "text": "a forum selection clause found in the fine print on the back of the passenger ticket required dismissal in favor of the Florida courts. In the alternative, the cruise line requested that the case be transferred to the appropriate district court in Florida. Both of the defendant’s motions, including the motion to transfer, were made under § 1406. Shute v. Carnival Cruise Lines, Inc., 897 F.2d 377, 379, 388 n. 9 (9th Cir.1990), rev’d on other grounds, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). The Ninth Circuit ruled that the forum selection clause should not be enforced in the circumstances. Carnival Cruise, 897 F.2d at 388-89. In reversing, the Supreme Court did not explicitly discuss whether a contractual provision granting jurisdiction to another federal court should be given effect under § 1404 or § 1406. Carnival Cruise, 499 U.S. at 593-95, 111 S.Ct. at 1527-28. However, the Court confined its analysis to M/S Bremen’s consideration of whether the forum selection clause would be unreasonable and unfair. The Court did not frame the issue in terms of the multiple factors enumerated in § 1404: convenience of the parties, convenience of the witnesses, and the interests of justice. In fact, the needs and convenience of witnesses were not mentioned at all in the Court’s opinion. Thus, the Carnival Cruise Court structured its analysis in terms foreign to § 1404. Furthermore, on remand the Ninth Circuit interpreted the Court’s ruling as calling for a dismissal, an action which could only reflect the application of § 1406. Thus, the Carnival Cruise Court appears to have found § 1406 applicable in these circumstances, contrary to any implication in the Stewart footnote. Additionally, the Ninth Circuit has explicitly endorsed the use of § 1406 to transfer or dismiss based on a forum selection clause. The court took this position in its first Carnival Cruise opinion, the one reversed by the Supreme Court. Shute v. Carnival Cruise Lines, Inc., 897 F.2d at 388, n. 9. This part of the Ninth Circuit’s opinion appears to have been left untouched by the Supreme Court’s reversal, for" }, { "docid": "8166860", "title": "", "text": "the cruise line. Carnival Cruise left open the question of whether a forum selection clause should be enforced through dismissal or transfer. It did not appear that the Court intended to overrule Stewart. However, the Court’s reversal of the Ninth Circuit’s decision had the effect of dismissing the case even though the action could have been transferred to Florida. The Court never reached the issue of whether the action should have been transferred. Indeed, it appears that the Court may have unintentionally overlooked or ignored the issue since the description of the procedural history of the case took no notice of the fact that the defendant had sought transfer as alternative relief. See Carnival Cruise v. Shute, 499 U.S. at 588, 111 S.Ct. at 1524 (describing procedural history but not including petitioner’s alternate ground of motion to transfer). If the Court merely intended that the forum selection clause be enforced in the context of a transfer, that never happened: on remand, the Ninth Circuit simply affirmed the district court’s dismissal “for the reasons set forth” in the Supreme Court’s opinion, thereby apparently resulting in a dismissal of the action without ever considering the possibility of transfer or what standard might apply. Shute v. Carnival Cruise Lines, 934 F.2d 1091 (9th Cir.1991). The Court of Appeals for this Circuit has not specifically addressed the issue of whether a forum selection clause may be enforced by dismissing an action where transfer is possible. Defendant relies heavily on Jones v. Weibrecht, 901 F.2d 17 (2d Cir.1990), a decision handed down between Stewart and Carnival, for the proposition that the only option here is to dismiss the action without considering transfer. In Jones, Jones and Weibrecht signed two agreements containing a forum selection clause limiting all litigation on the basis of the agreements to the Supreme Court of New York, Essex County. When a dispute arose, Jones commenced a contract action in federal court seeking a recision of the agreements. Weibrecht then filed suit in the Supreme Court of New York, Essex County, alleging breach of contract. Jones removed that action to the same" }, { "docid": "9441850", "title": "", "text": "the cause against Lazard Freres. . The claims that Salovaara brought in his individual capacity have since been dismissed. He does not appeal that dismissal. . LP is short for Limited Partnership. .Even though the Notes had a par or face value of more than $55 million, their market value depended upon the likelihood that Bu-eyrus would actually be able to repay this debt. . Under 28 U.S.C. § 1404(a), a district court may transfer a civil case to another district ''[f]or the convenience of the parties and witnesses, in the interest of justice....” Before permitting such a transfer, a district court also must consider “all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum.” Jumara, 55 F.3d at 879 (quoting 1A Pt. 2 Moore’s ¶ 0.345[5], at 4363). . There is much disagreement over whether dismissal (where appropriate) should be made pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(3), or 12(b)(6). See, e.g., Lambert v. Kysar, 983 F.2d 1110, 1112n. 1 (1st Cir.1993) (dismissal based on forum selection clause specifying state forum grounded on Fed.R.Civ.P. 12(b)(6), not 12(b)(3)); Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1289 (11th Cir.1998) (collecting cases adopting each rationale and where forum selection clauses specified non-federal forums). . Walker’s interpretation of Ninth Circuit precedent (Walker explicitly relied on Argueta v. Banco Mexicano, S.A., 87 F.3d 320 (9th Cir.1996)) finds further support in Shute v. Carnival Cruise Lines, 934 F.2d 1091 (9th Cir.1991) (\"Shute II\"), despite Shute's somewhat complicated procedural history. The Shute litigation began with a summary judgment motion, in which the defendant alleged: (i) that the District Court, in the Western District of Washington, lacked personal jurisdiction; and (ii) that a forum selection clause permitted suit only in Florida's state or federal courts. In the alternative, the defendant requested that the case be transferred to the Southern District of Florida. See Shute v. Carnival Cruise Lines, 897 F.2d 377, 379 (9th Cir.1990) (\"Shute I\"). The District Court granted summary judgment on personal jurisdiction grounds without addressing the" }, { "docid": "8166866", "title": "", "text": "turn, is defined by statute at 28 U.S.C. § 1391, which sets forth where venue may properly be laid. The determination of the appropriate venue under § 1391 revolves around factors such as whether the court is acting within its diversity or federal question jurisdiction; whether the defendant is a citizen or an alien or a corporation; and the jurisdiction in which the defendant(s) resides or in ,which a corporation does business. 28 U.S.C. § 1391. Section 1391 does not list “forum selection clauses” as a factor to be considered when determining where venue may be laid. The fact that the parties contractually agreed to litigate disputes in another forum is not a question of venue, but one of contract, which will not be enforced unless fundamentally unfair, see Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 [111 S. Ct. 1522, 113 L.Ed.2d 622] (1991). The court then declined to dismiss the action for improper venue on the basis of the forum selection and went on to consider the defendant’s alternate ground for relief, transfer under § 1404. Where an action has been removed from state court, “venue,” to the extent that the concept even applies to actions begun in state court, is proper in this Court, since a case may be removed to the federal district court “for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). The right to limit the resolution of disputes to a particular forum is one that is created through an agreement by the parties, not by statute. See National Micrographics, 825 F.Supp. at 679. Accordingly, since defendant solely moved for dismissal for improper venue, the motion to dismiss is denied. However, since a court may sua sponte consider transfer after giving both parties a chance to brief the issue, see Starnes v. McGuire, 512 F.2d 918, 933-34 (D.C.Cir.1974) (en banc), it is appropriate to consider the application of § 1404(a) analysis now rather than wait for defendant’s inevitable motion to transfer. Under the Stewart analysis, federal law governs the enforceability of forum selection clauses, and" } ]

[ { "docid": "23489859", "title": "", "text": "Inc. v. L.A. Gear California, Inc., 853 F.2d 1557, 1564, 7 USPQ2d 1548, 1554 (Fed.Cir.1988). Obviousness must be established by clear and convincing evidence. Glaverbel Societe Anonyme v. Northlake Marketing & Supply, Inc., 45 F.3d 1550, 1555, 33 USPQ2d 1496, 1499 (Fed.Cir.1995). The ultimate determination of obviousness is a question of law, which we review de novo. Stiftung v. Renishaw PLC, 945 F.2d 1173, 1182, 20 USPQ2d 1094, 1102 (Fed.Cir.1991). The scope and content of the prior art, differences between the prior art and the claimed invention, the level of ordinary skill in the art, and objective evidence of secondary considerations of patentability are fact determinations. Id. What the prior art teaches and whether it teaches toward or away from the claimed invention also is a determination of fact. In re Bell, 991 F.2d 781, 784, 26 USPQ2d 1529, 1531 (Fed.Cir.1993) (citing Raytheon Co. v. Roper Corp., 724 F.2d 951, 960-61, 220 USPQ 592, 599-600 (Fed.Cir.1983), cert. denied, 469 U.S. 835, 105 S.Ct. 127, 83 L.Ed.2d 69 (1984)). Following a bench trial, we review the findings of fact underlying a determination of obviousness for clear error. Stiftung, 945 F.2d at 1183, 20 USPQ2d at 1102. “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); see also Milmark Servs., Inc. v. United States, 731 F.2d 855, 857 (Fed.Cir.1984) (same (quoting United States Gypsum Co., 333 U.S. at 395, 68 S.Ct. at 542)). On appeal, Para-Ordnance advances four contentions: 1) that the district court focused on the “heart” of the ’618 patent instead of the invention as a whole; 2) that the court did not address motivation to modify the prior art; 3) that the court erred in its analysis of secondary considerations of non-obviousness; and 4) that the court used hindsight in its obviousness analysis. We address each of these contentions in turn. A. Para-Ordnance’s first contention" } ]

[ { "docid": "14740371", "title": "", "text": "the '895 patent were invalid for indefiniteness. Praxair timely appealed, challenging both the unenforceability ruling as to the '609 and '115 patents and the invalidity ruling with respect to the '895 patent. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(1). ATMI cross-appealed, challenging the determinations of infringement and no invalidity as to the asserted claims of the '609 and '115 patents. As discussed below, we hold that the cross-appeal is improper. DISCUSSION I. Whether the '115 and '609 Patents Are Unenforceable Due to Inequitable Conduct On appeal, Praxair first challenges the district court’s conclusion that the '609 and '115 patents are unenforceable due to inequitable conduct. “Each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the [PTO], which includes a duty to disclose to the [PTO] all information known to that individual to be material to patentability....” 37 C.F.R. § 1.56(a); see also Honeywell Int’l Inc. v. Universal Avionics Sys. Corp., 488 F.3d 982, 999 (Fed.Cir.2007) (“Applicants for patents have a duty to prosecute patent applications in the Patent Office with candor, good faith, and honesty.”). Inequitable conduct in breach of this duty can be established by showing by “clear and convincing evidence that the applicant (1) made an affirmative misrepresentation of material fact, failed to disclose material information, or submitted false material information, and (2) intended to deceive the [PTO].” Cargill, Inc. v. Canbra Foods, Ltd., 476 F.3d 1359, 1363 (Fed.Cir.2007). The required showings of materiality and intent are separate, and a showing of materiality alone does not give rise to a presumption of intent to deceive. See Kingsdown Med. Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867 (Fed.Cir.1988); see also M. Eagles Tool Warehouse, Inc. v. Fisher Tooling Co., Inc., 439 F.3d 1335, 1341 (Fed.Cir.2006) (“[A] failure to disclose a prior art device to the PTO, where the only evidence of intent is a lack of a good faith explanation for the nondisclosure, cannot constitute clear and convincing evidence sufficient to support a determination of culpable intent.”). An inference of" }, { "docid": "11816246", "title": "", "text": "Brands, Inc. v. ABA Locks Mfrs. Co., 501 F.3d 1307, 1314 (Fed.Cir.2007). Inequitable conduct in prosecuting a patent application before the United States Patent & Trademark Office may take the form of an affirmative misrepresentation of material fact, a failure to disclose material information, or the submis sion of false material information, but in every case this false or misleading material communication or failure to communicate must be coupled with an intent to deceive. Innogenetics, 512 F.3d at 1378 (citations omitted). Materiality, defined as “what a reasonable examiner would have considered important in deciding whether to allow a patent application,” and intent are both questions of fact, and require proof by clear and convincing evidence. Id. To satisfy the “intent” prong for unen-forceability, “the involved conduct, viewed in light of all the evidence, including evidence indicative of good faith, must indicate sufficient culpability to require a finding of intent to deceive.” Kingsdown Med. Consultants, Ltd. v. Hollister Inc., 863 F.2d 867, 876 (Fed.Cir.1988) (en banc) (citing Norton v. Curtiss, 57 C.C.P.A. 1384, 433 F.2d 779 (1970)). Gross negligence is not sufficient. Id. This is a high bar. On appeal, Teva and Dr. Reddy’s allege that Eisai misled the Patent Office in five ways: 1) failing to disclose Eisai’s own co-pending '013 application, which claimed the “ethyl homolog” of rabeprazole (compound SHKA 661); 2) withholding rejections from the '013 application’s prosecution that also would have been applicable to the '552 patent’s prosecution; 3) failing to disclose the prior art “Byk Gulden patent” (WO 8602646); 4) submitting a misleading declaration (the Fujisaki Declaration) to the examiner of the '552 patent; and 5) concealing lansoprazole from the examiner. The district court rejected the fifth assertion on summary judgment, SJ Enforceability Order at 58, and the other four after a bench trial, Trial Order. Teva and Dr. Reddy’s first and second allegations rely on Eisai’s failure to disclose the fact of, and rejections contained in, Eisai’s patent application claiming the “ethyl homolog” of rabeprazole. Known to Eisai’s scientists as compound SHKA 661, the ethyl homolog differs from rabeprazole as its name suggests. SHKA 661" }, { "docid": "3897070", "title": "", "text": "merely cumulative to that information considered by the examiner.” Digital Control, 437 F.3d at 1319. “As this court has previously noted, the scope and content of prior art and what the prior art teaches are questions of fact.” Id. “The intent element of the offense is ... in the main proven by inferences drawn from facts, with the collection of inferences permitting a confident judgment that deceit has occurred.” Akron Polymer, 148 F.3d at 1385. “However, inequitable conduct requires not intent to withhold, but rather intent to deceive. Intent to deceive cannot be inferred simply from the decision to withhold [information] where the reasons given for the withholding are plausible.” Dayco, 329 F.3d at 1367. In addition, “a finding that particular conduct amounts to ‘gross negligence’ does not of itself justify an inference of intent to deceive; the involved conduct, viewed in light of all the evidence, including evidence indicative of good faith, must indicate sufficient culpability to require a finding of intent to deceive.” Kingsdown Med. Consultants, Ltd. v. Hollister Inc., 863 F.2d 867, 876 (Fed.Cir.1988) (en banc in relevant part). “The party asserting inequitable conduct must prove a threshold level of materiality and intent by clear and convincing evidence.” Digital Control, 437 F.3d at 1313. “The court must then determine whether the questioned conduct amounts to inequitable conduct by balancing the levels of materiality and intent, ‘with a greater showing of one factor allowing a lesser showing of the other.’ ” Id. (quoting Union Pac. Res. Co. v. Chesapeake Energy Corp., 236 F.3d 684, 693 (Fed.Cir.2001)). “When, after a trial, the court has made factual findings as to materiality and deceptive intent, those factual findings are reviewed for clear error, and the decision of the ultimate issue of inequitable conduct is reviewed for abuse of discretion.” Digital Control, 437 F.3d at 1313. A We first discuss Schumann’s failure to disclose the Baker patent to Examiner Trafton during prosecution of the applications leading to the '716 patent. McKesson first points out that Examiner Lev cited Baker “solely for its disclosure of a unique address code,” and that Haw kins," }, { "docid": "23282374", "title": "", "text": "district court rejected DCI’s contention that the Rorden patent was merely cumulative of those references disclosed, noting that Rorden “claims methods of determining location and orientation of the underground tool using fixed receiving stations, while Geller claims an apparatus for drilling that can be steered around obstacles.” Summary Judgment, slip op. at 18. The court also found that “the Geller reference is not focused on disclosing a method of locating an underground boring tool, which is the primary subject matter in both the Rorden patent and the [ ]’678 Patent.” Id. However, DCI contends that, even if the Geller reference has a different focus than that of the Rorden patent and the ’678 patent, it too describes methods of determining the location and orientation of an underground boring tool using fixed receiving stations. See Geller patent, col. 4, 1. .67-col. 5, 1. 5 (“In operation the position of the drilling head.is determined by above ground detectors which ... determine the tool’s depth and direction. The detector will also ... be used to • determine the tool’s pitch.”). As this court has previously noted, the scope and content of prior art and what the prior art teaches are questions of fact. Para-Ordnance Mfg., Inc. v. SGS Importers Int’l. Inc., 73 F.3d 1085, 1088 (Fed.Cir.1995) (citing Stiftung v. Renishaw PLC, 945 F.2d 1173, 1182 (Fed.Cir.1991); In re Bell, 991 F.2d 781, 784 (Fed.Cir.1993)). Because there are genuine issues of material fact as to what the Geller reference teaches, and thus whether the Rorden patent is cumulative of the Geller patent, the issue of whether the failure to disclose the Rorden patent was a material omission was not properly decided at summary judgment. V In determining whether the misstatements were intentional, “the involved conduct, viewed in light of all the evidence, including evidence of good faith, must indicate sufficient culpability to require a finding of intent to deceive.” Paragon Podiatry, 984 F.2d at 1189 (quoting Kingsdown Med. Consultants Ltd. v. Hollister, Inc., 863 F.2d 867, 876 (Fed.Cir.1988) (en banc)). Intent need not be shown by direct evidence, but may be inferred from the" }, { "docid": "6649694", "title": "", "text": "evidence that 1) material information was withheld or misrepresented to the patent office 2) with the intent to deceive or mislead the patent office. In re Harita, 847 F.2d 801, 808 (Fed.Cir.1988). On this issue, the Court of Appeals for the Federal Circuit recently stated: To be guilty of inequitable conduct, one must have intended to act inequitably. Thus, one who alleges a “failure to disclose” form of inequitable conduct must offer clear and convincing proof of: ... (3) failure of the applicant to disclose art or information resulting from an intent to mislead the PTO. In re Harita, 847 F.2d at 808 (quoting FMC Corp. v. Manitowoc Co., 835 F.2d 1411, 1415 (Fed.Cir.1987)). To determine whether a patent applicant acted with the necessary intent to deceive, the court must evaluate all of the facts and circumstances in the ease, including those indicative of good faith. Paragon Podiatry Lab. Inc. v. KLM Labs., 984 F.2d 1182, 1190 (Fed.Cir.1993). Because the issue of inequitable conduct is so closely tied to the underlying facts, summary judgment is rarely appropriate. Id. (quoting KangaROOS U.S.A., Inc. v. Caldor, Inc., 778 F.2d 1571, 1577 (Fed.Cir.1985)). The very nature of patent law — the reward to the inventor of a monopoly on the use of his invention — provides an economic incentive to the patent applicant. As recognized by the court in Kingsdown Medical Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867, 874 (Fed.Cir.1988), “there is nothing improper, illegal or inequitable in filing a patent application for the purpose of obtaining a right to exclude a known competitor’s product from the market.” Thus, if Novopharm intends to rely on economic motive alone to prove inequitable conduct, then its evidence will have to be very compelling in light of the underlying facts and circumstances. However, the court finds it inappropriate at this stage to decide the issue of inequitable conduct without the benefit of hearing the testimony, observing the witnesses, and considering all of the evidence presented at trial. In so ruling, the court notes that the defense of inequitable conduct is equitable in nature, and, therefore," }, { "docid": "23282373", "title": "", "text": "his submission of that reference to the PTO on April 16, 1997, during the prosecution of an unrelated patent. Summary Judgment, slip op. at 16. Further, the district court found that the Rorden patent was material, as an application for a continuation patent using the same specification, United States Patent No. 6,525,538 (the ’538 patent), was rejected by the examiner as anticipated by the Rorden patent while one of the patents in suit, the ’780 patent, was still pending. Thus, the district court found that “[gjiven the similarity between the ’538 Patent and the ’678 Patent, it is logical to assume that' the ’678 Patent would have been rejected on the same basis had the Rorden patent been disclosed to the examiner.” Id. at 17. However, a withheld otherwise material prior art reference is not material for the purposes of inequitable conduct if it is merely cumulative to that information considered by the examiner. Molins PLC, 48 F.3d at 1179 (citing Scripps Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1582 (Fed.Cir.1991)). The district court rejected DCI’s contention that the Rorden patent was merely cumulative of those references disclosed, noting that Rorden “claims methods of determining location and orientation of the underground tool using fixed receiving stations, while Geller claims an apparatus for drilling that can be steered around obstacles.” Summary Judgment, slip op. at 18. The court also found that “the Geller reference is not focused on disclosing a method of locating an underground boring tool, which is the primary subject matter in both the Rorden patent and the [ ]’678 Patent.” Id. However, DCI contends that, even if the Geller reference has a different focus than that of the Rorden patent and the ’678 patent, it too describes methods of determining the location and orientation of an underground boring tool using fixed receiving stations. See Geller patent, col. 4, 1. .67-col. 5, 1. 5 (“In operation the position of the drilling head.is determined by above ground detectors which ... determine the tool’s depth and direction. The detector will also ... be used to • determine the" }, { "docid": "6008968", "title": "", "text": "Life Techs., 224 F.3d at 1324 (citing Elk Corp. v. GAP Bldg. Materials Corp., 168 F.3d 28, 30 (Fed.Cir.1999)); see also Hoffmann-La Roche, Inc. v. Promega Corp., 323 F.3d 1354, 1359 (Fed.Cir.2003) (stating that a “party seeking to have a patent declared unenforceable has a heavy burden to meet”). Even once the threshold levels of materiality and intent are met, “the ultimate determination of inequitable conduct is within the discretion of the trial court, which must make the equitable judgment concerning whether the applicant’s conduct is so culpable that the patent should not be enforced.” Life Techs., 224 F.3d at 1324 (citing Kingsdown Med. Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867, 876 (Fed.Cir.1988) (en banc)). “In making this determination, the court must conduct a balancing test between the levels of materiality and intent, with a greater showing of one factor allowing a lesser showing of the other.” Id. (citing Critikon, Inc. v. Becton Dickinson Vascular Access, Inc., 120 F.3d 1253, 1256 (Fed.Cir.1997) (“The more material the omission or the misrepresentation, the lower the level of intent required to establish inequitable conduct, and vice versa.”)). Once a district court has balanced the equitable considerations and concluded that inequitable conduct has occurred, however, it “has no discretion to decide whether a patent is unenforceable.” Monsanto Co. v. Bayer Bioscience N.V., 514 F.3d 1229, 1243 (Fed.Cir.2008) (citing Kingsdown, 863 F.2d at 877, for the following statement: “When a court has finally determined that inequitable conduct occurred in relation to one or more claims during prosecution of the patent application, the entire patent is rendered unenforceable.”). While a grant of summary judgment for inequitable conduct is permissible, the Federal Circuit has “urge[d] caution” in granting summary judgment for inequitable conduct, Paragon Podiatry Lab., Inc. v. KLM Labs., Inc., 984 F.2d 1182, 1190 (Fed.Cir.1993), noting that “the habit of charging inequitable conduct in almost every major patent case has become an absolute plague.” Burlington Indus., Inc. v. Dayco Corp., 849 F.2d 1418, 1422 (Fed.Cir.1988). Buckaroos argues that Sabasta’s initial “claims to a two roll-bending machine with dies having flares and ribs were rejected by" }, { "docid": "23282352", "title": "", "text": "of the boring tool’s specific orientation; (d) thereafter causing said receiver arrangement to produce in response to said last-mentioned electromagnetic signal a corresponding orientation display driving electric signal; and (e) using said visual orientation display, visually displaying at the above-ground locator the particular orientation component of the boring tool’s specific orientation in response to said last-mentioned orientation display driving electric signal. ’678 patent, col. 25, ll. 32-61. Approximately half of the claims of the ’678 patent were initially rejected by the PTO on the ground that they were obvious in light of U.S. Patent No. 5,174,-033 (the Rider patent). In order to overcome that rejection, Dr. Mercer submitted a declaration under PTO Rule 131 (the Rule 131 declaration), whereby he submitted a sworn affidavit establishing that he had reduced his invention to practice prior to the effective date of the prior art reference, in this case, June 18, 1990. 37 C.F.R. § 1.131 (2004). Dr. Mercer’s colleague, John Olsen, also submitted a brief declaration to the PTO stating that he had read Dr. Mercer’s declaration and that he could “confirm that John Mercer showed me and operated for me in confidence the complete system referred to in that para graph [9] at the meeting recited therein.” Decl. of J. Olsen dated Oct. 2, 1997 at 1. Finding that Dr. Mercer’s Rule 131 declaration was sufficient to overcome the Rider reference, the examiner withdrew the rejection. In addition, during prosecution of the ’678 patent, Dr. Mercer disclosed U.S. Patent No. 4,674,579 (the Geller patent) and U.S. Patent No. 4,806,869 (the Chau patent), both of which list Dr. Mercer as a co-inventor, as well as U.S. Patent No. 4,646,277 (the Bridges patent). ’678 patent, col. 4, 11. 5-17, 38^3, col. 5, 11. 16-27. However, Dr. Mercer did not disclose U.S. Patent No. 4,710,708 (the Rorden patent), although he had submitted that patent as prior art in regard to a separate, unrelated patent application, U.S. Patent No. 6,035,-951, filed on April 16,1997. II A patent may be rendered unenforceable for inequitable conduct if an applicant, with intent to mislead or deceive the examiner," }, { "docid": "23282353", "title": "", "text": "and that he could “confirm that John Mercer showed me and operated for me in confidence the complete system referred to in that para graph [9] at the meeting recited therein.” Decl. of J. Olsen dated Oct. 2, 1997 at 1. Finding that Dr. Mercer’s Rule 131 declaration was sufficient to overcome the Rider reference, the examiner withdrew the rejection. In addition, during prosecution of the ’678 patent, Dr. Mercer disclosed U.S. Patent No. 4,674,579 (the Geller patent) and U.S. Patent No. 4,806,869 (the Chau patent), both of which list Dr. Mercer as a co-inventor, as well as U.S. Patent No. 4,646,277 (the Bridges patent). ’678 patent, col. 4, 11. 5-17, 38^3, col. 5, 11. 16-27. However, Dr. Mercer did not disclose U.S. Patent No. 4,710,708 (the Rorden patent), although he had submitted that patent as prior art in regard to a separate, unrelated patent application, U.S. Patent No. 6,035,-951, filed on April 16,1997. II A patent may be rendered unenforceable for inequitable conduct if an applicant, with intent to mislead or deceive the examiner, fails to disclose material information or submits materially false information to the PTO during prosecution. Norian Corp. v. Stryker Corp., 363 F.3d 1321, 1330-31 (Fed.Cir.2004). The party asserting inequitable conduct must prove a threshold level of materiality and intent by clear and convincing evidence. Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178 (Fed.Cir.1995); J.P. Stevens & Co. v. Lex Tex, Ltd., 747 F.2d 1553, 1559 (Fed.Cir.1984). The court must then determine whether the questioned conduct amounts to inequitable conduct by balancing the levels of materiality and intent, “with a greater showing of one factor allowing a lesser showing of the other.” Union Pac. Res. Co. v. Chesapeake Energy Corp., 236 F.3d 684, 693 (Fed.Cir.2001). When, after a trial, the court has made factual findings as to materiality and deceptive intent, -those factual findings are reviewed for clear error, and the decision of the ultimate issue of inequitable conduct is reviewed for abuse of discretion. Novo Nordisk Pharms., Inc. v. Bio-Tech. Gen. Corp., 424 F.3d 1347, 1359 (Fed.Cir.2005). However, when a district court grants summary" }, { "docid": "23282372", "title": "", "text": "court that a reasonable examiner would have considered the true nature of Dr. Mercer’s reduction to practice to be important, such that his misstatements unquestionably meet the threshold requirement for materiality. As noted by the district court, inequitable conduct may also be found where a patentee has failed to disclose material information, such as a prior art reference, to the PTO. See, e.g., Baxter Int’l, Inc. v. McGaw, Inc., 149 F.3d 1321, 1327 (Fed.Cir.1998); Molins PLC, 48 F.3d at 1178. When a defendant alleges that the patentee omitted a material reference, “there must be clear and convincing evidence that the applicant made a deliberate decision to withhold a known material reference.” Baxter Int’l, 149 F.3d at 1329 (citing Molins PLC, 48 F.3d at 1181). Thus, the reference must be material, under the same standards outlined above, and the patentee must have actual knowledge of the prior art reference. The district court found that it was undisputed that Dr. Mercer knew of the Ror-den Patent during prosecution of the pat ents in suit, as evidenced by his submission of that reference to the PTO on April 16, 1997, during the prosecution of an unrelated patent. Summary Judgment, slip op. at 16. Further, the district court found that the Rorden patent was material, as an application for a continuation patent using the same specification, United States Patent No. 6,525,538 (the ’538 patent), was rejected by the examiner as anticipated by the Rorden patent while one of the patents in suit, the ’780 patent, was still pending. Thus, the district court found that “[gjiven the similarity between the ’538 Patent and the ’678 Patent, it is logical to assume that' the ’678 Patent would have been rejected on the same basis had the Rorden patent been disclosed to the examiner.” Id. at 17. However, a withheld otherwise material prior art reference is not material for the purposes of inequitable conduct if it is merely cumulative to that information considered by the examiner. Molins PLC, 48 F.3d at 1179 (citing Scripps Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1582 (Fed.Cir.1991)). The" }, { "docid": "23282382", "title": "", "text": "supra Part IV (citing Refac Int’l, 81 F.3d at 1583; Rohm & Haas, 722 F.2d at 1571; Gen. Electro Music, 19 F.3d at 1411). However, in this case, the district court did not parse its analysis of the misstatements in the Rule 131 declaration from its analysis of the failure to disclose the Rorden patent. As a result, we are unable to tell how heavily the district court’s finding of inequitable conduct relied on its proper grant of summary judgment on the materiality of the misstatements in the Rule 131 declaration and how heavily it relied on its improper grant of summary judgment on the materiality of the failure to disclose the Rorden patent. In short, we cannot ascertain whether the district court would have ruled the patents unenforceable based solely on the misrepresentations in the Rule 131 declaration, whether the district court’s factual findings on intent would survive trial on the merits of the cumulative prior art issue, and in particular, whether the district court’s assessment of Dr. Mercer’s credibility would be different if the court were to determine after trial that the Rorden reference was in fact cumulative. VI For the reasons stated above, the district court’s partial grant of summary judgment on the materiality of the misstatements in the Rule 131 declaration is affirmed. The district court’s partial grant of summary judgment on the materiality of the omission of the Rorden patent is reversed, and the district court’s determination that the patents were unenforceable for inequitable conduct is vacated. The case is remanded for further proceedings. COSTS No costs. AFFIRM-IN-PART, REVERSE-IN-PART, VACATE-IN-PART AND REMAND. . The '678 patent, the '651 patent, and the '780 patent contain nearly identical specifications, with only the introduction and claim language differing. . DCI's complaint alleged that CMW had infringed eight of the resulting eighteen patents. However, only three of those patents, the '678 patent, the '651 patent, and the '780 patent, are the subject of the present appeal. .The parties have agreed that a finding of inequitable conduct on the '678 patent would render all three patents unenforceable." }, { "docid": "23282375", "title": "", "text": "tool’s pitch.”). As this court has previously noted, the scope and content of prior art and what the prior art teaches are questions of fact. Para-Ordnance Mfg., Inc. v. SGS Importers Int’l. Inc., 73 F.3d 1085, 1088 (Fed.Cir.1995) (citing Stiftung v. Renishaw PLC, 945 F.2d 1173, 1182 (Fed.Cir.1991); In re Bell, 991 F.2d 781, 784 (Fed.Cir.1993)). Because there are genuine issues of material fact as to what the Geller reference teaches, and thus whether the Rorden patent is cumulative of the Geller patent, the issue of whether the failure to disclose the Rorden patent was a material omission was not properly decided at summary judgment. V In determining whether the misstatements were intentional, “the involved conduct, viewed in light of all the evidence, including evidence of good faith, must indicate sufficient culpability to require a finding of intent to deceive.” Paragon Podiatry, 984 F.2d at 1189 (quoting Kingsdown Med. Consultants Ltd. v. Hollister, Inc., 863 F.2d 867, 876 (Fed.Cir.1988) (en banc)). Intent need not be shown by direct evidence, but may be inferred from the totality of the evidence. Molins PLC, 48 F.3d at 1180-81. Although the district court did not find direct evidence of intent to deceive, the court made numerous findings of fact regarding the circumstances surrounding Dr. Mercer’s Rule 131 declaration and the omission of the Rorden patent. The district court found that Dr. Mercer was “an extremely experienced inventor,” who, at the time of his Rule 131 declaration, had applied for numerous patents and had testified as an expert witness in patent litigation. Bench Trial, slip op. at 6, 25. Thus the district court found that Dr. Mercer was aware of the duty of candor before the PTO and knew that it applied to his affidavit. The district court also found that Dr. Mercer had control over the contents of his declaration; even though the declaration was drafted by an attorney, Dr. Mercer was provided with a draft, was asked for specific feedback, and possessed the final draft for a period of weeks prior to signing it, under oath. Id. at 6-9. Further, the district court" }, { "docid": "3750580", "title": "", "text": "sufficient evidence of the nature of the Weasler device cannot be found in the record. Therefore, genuine issues of material fact dog every step of the analysis of inequitable conduct, precluding summary judgment in Dethmers’s favor on the “threshold” question of the level of materiality, id. at 1327, as well as on the “weighing” of this element against intent. Therefore, genuine issues of material fact preclude summary judgment in Dethmers’s favor on the ground that the ’166 patent is unenforceable owing to inequitable conduct. Fed.R.Civ.P. 56(e). b. Intent to deceive Consideration of the “intent to deceive” element leads to the same conclusion. In Baxter International, the court also explained the requirements of the “intent to deceive” element of the analysis of a claim of inequitable conduct: Intent need not be proven by direct evidence. Indeed, “[d]irect proof of wrongful intent is rarely available but may be inferred from clear and convincing evidence of the surrounding circumstances.” La-Bounty, 958 F.2d at 1076; see Paragon Podiatry Laboratory, Inc. v. KLM Labs., Inc., 984 F.2d 1182, 1189-90, 25 USPQ2d 1561, 1567 (Fed.Cir.1993) (explaining that intent must be generally inferred from the facts and circumstances surrounding the applicant’s conduct). Our prior decisions are also clear that although intent may be inferred from circumstantial evidence, mere gross negligence is insufficient to justify an inference of an intent to deceive the PTO. See Kingsdown, 863 F.2d at 876; FMC Corp. v. Manitowoc Co., 835 F.2d 1411, 1415 n. 9, 5 USPQ2d 1112, 1116 n. 9 (Fed.Cir.1987). In a case involving an omission of a material reference to the PTO, there must be clear and convincing-evidence that the applicant made a deliberate decision to withhold a known material reference. See Molins, 48 F.3d at 1181. Baxter Int’l, Inc., 149 F.3d at 1329; Akron Polymer Container Corp., 148 F.3d at 1383. Thus, “the challenged ‘conduct must be sufficient to require a finding of deceitful intent in the light of all the circumstances.’ ” Akron Polymer Container Corp., 148 F.3d at 1383 (quoting Kingsdown Med. Consultants v. Hollister, Inc., 863 F.2d 867, 873, 9 U.S.P.Q.2d 1384, 1389 (Fed.Cir.1988)) Although" }, { "docid": "8263863", "title": "", "text": "Cir.1993). 1. Inequitable Conduct Patent applicants “are required to prosecute patent applications with ‘candor, good faith, and honesty.’” Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., 326 F.3d 1226, 1233 (Fed.Cir.2003) (quoting Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178 (Fed.Cir.1995)). “A patent applicant commits inequitable conduct when, during prosecution of the application, he makes an affirmative representation of a material fact, fails to disclose material information, or submits false material information, and does so with the intent to deceive.” Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1358 (Fed.Cir.2003). The defendant may prove inequitable conducting by showing both a failure to disclose information material to patentability and an intent to deceive. M. Eagles Tool Warehouse, Inc. v. Fisher Tooling Co., Inc., 439 F.3d 1335, 1340 (Fed.Cir.2006). Inequitable conduct requires proof by clear and convincing evidence. Id., 439 F.3d at 1340 (burden applies to both elements); Monsanto Co. v. Bayer Bioscience N.V., 363 F.3d 1235, 1239 (Fed.Cir.2004). The test for materiality is “what a ‘reasonable examiner would consider ... important in deciding whether to allow the application to issue as a patent.’ ” AB. Dick Co. v. Burroughs Corp., 798 F.2d 1392, 1397 (Fed.Cir.1986). Under the rule in effect during the prosecution of the '226 patent, information is material where there is a substantial likelihood that a reasonable examiner would consider it important in deciding whether to allow the application to issue as a patent. 37 C.F.R. § 1.56 (1989). Mere oversight or negligence is insufficient to meet the requisite intent to deceive. See, e.g., Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1351 (Fed.Cir.2002); Kingsdoum Med. Consultants, Ltd. v. Hollister Inc., 863 F.2d 867, 876 (Fed.Cir.1988) (en banc in relevant part) (concluding that even gross negligence does not justify inference of intent to deceive). The defendant may prove intent using circumstantial evidence. See, e.g., Merck & Co., Inc. v. Danbury Pharmacol, Inc., 873 F.2d 1418, 1422 (Fed.Cir.1989). In determining whether circumstantial evidence supports a finding of intent, “it is proper to consider the degree of materiality of the information.” Lipman v. Dickinson, 174 F.3d 1363," }, { "docid": "11593878", "title": "", "text": "a patent has a duty of candor and good faith in its dealing with the Patent Office and the Examiner handling his application. This means that the applicant and his or her lawyer must not intentionally withhold or misrepresent material information concerning the invention, as defined by the asserted claim. A breach of this duty is inequitable conduct and renders the patent unenforceable. 24. Inequitable conduct before the Patent Office arises from failure to disclose material information, or submission of false material information with an intent to deceive the Patent Office. FMC Corp. v. Manitowoc Co., 835 F.2d 1411 (Fed.Cir.1987). To show that Cryo-Trans is guilty of inequitable conduct because of its “failure to disclose” prior art GATC must offer clear and convincing proof of (1) prior art or information that is material; (2) knowledge chargeable to Hill of that prior art or information and of its materiality; and (3) that Hill’s failure to disclose the art or information resulted from an intent to mislead the Patent Office. Id. at 1415; Hewlett-Packard Co. v. Bausch & Lomb Inc., 882 F.2d 1556, 1562 (Fed.Cir. 1989), cert. denied, 493 U.S. 1076, 110 S.Ct. 1125, 107 L.Ed.2d 1031 (1980); Kingsdown Medical Consultants, Ltd. v. Hollister Inc., 863 F.2d 867 (Fed.Cir.1988), cert. denied, 490 U.S. 1067, 109 S.Ct. 2068, 104 L.Ed.2d 633 (1989). To satisfy the “intent to deceive” element of inequitable conduct, “the involved conduct, viewed in light of all the evidence, including evidence indicative of good faith, must indicate sufficient culpability to require a finding of intent to deceive.” Paragon Podiatry Lab., Inc. v. KLM Lab., Inc., 984 F.2d 1182, 1189 (Fed.Cir.1993). 25. “Inequitable conduct” is not, or should not be, a magic incantation to be asserted against every patentee. Nor is that allegation established upon a mere showing that art or information having some degree of materiality was not disclosed. FMC Corp. v. Manitowoc Co., Inc., 835 F.2d 1411, 1415 (Fed.Cir.1987). A patent applicant is under no obligation to disclose “all pertinent prior art or other pertinent information of which he is aware.” Digital Equip. Corp. v. Diamond, 653 F.2d 701," }, { "docid": "3897069", "title": "", "text": "materially false information to the PTO during prosecution.” Digital Control Inc. v. Charles Mach. Works, 437 F.3d 1309, 1313 (Fed.Cir.2006); see also 37 C.F.R. § 1.56(a) (“Each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability as defined in this section.”). The materiality of information withheld during prosecution may be judged by the “reasonable examiner” standard. See id. at 1316. That is, “[mjateriality ... embraces any information that a reasonable examiner would substantially likely consider important in deciding whether to allow an application to issue as a patent.” Akron Polymer, 148 F.3d at 1382 (citations omitted). Moreover, “[fin-formation concealed from the PTO may be material even though it would not invalidate the patent.” Li Second Family, 231 F.3d at 1380. “However, a withheld otherwise material [piece of information] is not material for the purposes of inequitable conduct if it is merely cumulative to that information considered by the examiner.” Digital Control, 437 F.3d at 1319. “As this court has previously noted, the scope and content of prior art and what the prior art teaches are questions of fact.” Id. “The intent element of the offense is ... in the main proven by inferences drawn from facts, with the collection of inferences permitting a confident judgment that deceit has occurred.” Akron Polymer, 148 F.3d at 1385. “However, inequitable conduct requires not intent to withhold, but rather intent to deceive. Intent to deceive cannot be inferred simply from the decision to withhold [information] where the reasons given for the withholding are plausible.” Dayco, 329 F.3d at 1367. In addition, “a finding that particular conduct amounts to ‘gross negligence’ does not of itself justify an inference of intent to deceive; the involved conduct, viewed in light of all the evidence, including evidence indicative of good faith, must indicate sufficient culpability to require a finding of intent to deceive.” Kingsdown Med. Consultants, Ltd. v. Hollister Inc., 863 F.2d 867," }, { "docid": "11593879", "title": "", "text": "& Lomb Inc., 882 F.2d 1556, 1562 (Fed.Cir. 1989), cert. denied, 493 U.S. 1076, 110 S.Ct. 1125, 107 L.Ed.2d 1031 (1980); Kingsdown Medical Consultants, Ltd. v. Hollister Inc., 863 F.2d 867 (Fed.Cir.1988), cert. denied, 490 U.S. 1067, 109 S.Ct. 2068, 104 L.Ed.2d 633 (1989). To satisfy the “intent to deceive” element of inequitable conduct, “the involved conduct, viewed in light of all the evidence, including evidence indicative of good faith, must indicate sufficient culpability to require a finding of intent to deceive.” Paragon Podiatry Lab., Inc. v. KLM Lab., Inc., 984 F.2d 1182, 1189 (Fed.Cir.1993). 25. “Inequitable conduct” is not, or should not be, a magic incantation to be asserted against every patentee. Nor is that allegation established upon a mere showing that art or information having some degree of materiality was not disclosed. FMC Corp. v. Manitowoc Co., Inc., 835 F.2d 1411, 1415 (Fed.Cir.1987). A patent applicant is under no obligation to disclose “all pertinent prior art or other pertinent information of which he is aware.” Digital Equip. Corp. v. Diamond, 653 F.2d 701, 716 (1st Cir.1981). The two controlling factors are the materiality of the information and the intent of the action. Id. 26. In evaluating “inequitable conduct” the knowledge and actions of a patent applicant’s attorneys are chargeable to the applicant. Argus Chem. Corp. v. Fibre Glass-Evercoat Co., 759 F.2d 10, 14-15 (Fed. Cir.), cert. denied, 474 U.S. 903, 106 S.Ct. 231, 88 L.Ed.2d 230 (1985). 27. The Kurth Patent qualifies as a prior art publication pursuant to 35 U.S.C. § 102(b). Mr. Hill’s failure to disclose the Kurth Patent was material because there was a substantial likelihood that a reasonable examiner would have considered it important in deciding whether to issue the patent-in-suit. J.P. Stevens & Co. v. Lex Tex, Ltd., 747 F.2d 1553 (Fed.Cir.1984), cert. denied, 474 U.S. 822, 106 S.Ct. 73, 88 L.Ed.2d 60 (1985). 28. There must be an element of bad faith or total recklessness to find fraud or inequitable conduct. Digital Equip. Corp. v. Diamond, 653 F.2d 701 (1st Cir.1981); Norton v. Curtiss, 433 F.2d 779, 795-96 (C.C.P.A.1970). See also Tegtmeyer," }, { "docid": "14949437", "title": "", "text": "the failure of others to develop the invention. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). “What the prior art teaches, whether it teaches away from the claimed invention, and whether it motivates a combination of teachings from different references are questions of fact.” In re Fulton, 391 F.3d 1195, 1199-1200 (Fed.Cir.2004). A finding of inequitable conduct is committed to the trial judge’s discretion and is reviewed under an abuse of discretion standard. Kingsdown Med. Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867, 876 (Fed.Cir.1988). “To overturn such a determination, the appellant must establish that the ruling is based on clearly erroneous findings of fact or on a misapplication or misinterpretation of applicable law, or evidences a clear error of judgment on the part of the district court.” Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178 (Fed.Cir.1995) (citing Kingsdown Medical Consultants, 863 F.2d at 876). Findings of materiality and intent are factual findings subject to the clearly erroneous standard and, therefore, will not be disturbed on appeal unless this court has a definite and firm conviction that a mistake has been committed. Id. B. Claim Construction Apotex challenges the district court’s claim construction on the ground that the term “in a stabilizing amount” should properly be read as a claim limitation. We agree with the district court that the term “in a stabilizing amount” simply describes the intended result of using the weight to volume ratios recited in the claims. Accordingly, we conclude that the district court correctly construed the disputed term of the ’493 patent and correctly determined that Apotex’s proposed generic version of ACULAR would infringe all of the claims of the ’493 patent. We now turn to Apotex’s assertions of invalidity and unenforceability. C. Obviousness On appeal, the critical issue is whether the use of the surfactant octoxy-nol 40 in the claimed formulations is an obvious alteration of similar formulations taught in the prior art. Because the district court clearly erred in its fact findings regarding obviousness, we remand for further consideration. At trial, Apotex argued that based" }, { "docid": "9803542", "title": "", "text": "inventors had committed inequitable conduct when prosecuting the application that yielded the three patents. See id., at 73. Accordingly, the court held that the patents were unenforceable, and entered final judgment under Fed.R.Civ.P. 54(b). See PerSeptive Biosystems, Inc. v. Pharmacia Biotech, Inc., No. 93-12237, slip op. at 2 (D.Mass. Mar. 13,1998) (Order). This appeal followed, vesting us with jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (1994). II Inequitable conduct includes affirmative misrepresentations of a material fact, failure to disclose material information, or submission of false material information, coupled with an intent to deceive. See Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178-79, 33 USPQ2d 1823, 1826-27 (Fed.Cir.1995). The defense of inequitable conduct is entirely equitable in nature, and thus not an issue for a jury to decide. See Paragon Podiatry Lab. Inc. v. KLM Labs., Inc., 984 F.2d 1182, 1190, 25 USPQ2d 1561, 1568 (Fed.Cir.1993); Gardco Mfg., Inc. v. Herst Lighting Co., 820 F.2d 1209, 1211-13, 2 USPQ2d 2015, 2017-19 (Fed.Cir.1987). Determination of inequitable conduct requires a two-step analysis. First, the trial court must determine whether the conduct meets a threshold level of materi ality. The trial court must then also determine whether the evidence shows a threshold level of intent to mislead the PTO. See Baxter Int’l, Inc. v. McGaw, Inc., 149 F.3d 1321, 1327, 47 USPQ2d 1225, 1228-29 (Fed.Cir.1998); Halliburton Co. v. Schlumberger Tech. Corp., 925 F.2d 1435, 1439, 17 USPQ2d 1834, 1838 (Fed.Cir.1991). These threshold determinations are reviewed by this court under the clearly erroneous standard of Federal Rule of Civil Procedure 52(a). See Kingsdown Med. Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867, 872, 9 USPQ2d 1384, 1389 (Fed.Cir.1988). Once the threshold levels of materiality and intent have been established, the trial court is required to weigh materiality and intent. See Molins, 48 F.3d at 1178, 33 USPQ2d at 1826-27. The more material the conduct, the less evidence of intent will be required in ordér to find that inequitable conduct has occurred. See N.V. Akzo v. E.I. Dupont de Nemours, 810 F.2d 1148, 1153, 1 USPQ2d 1704, 1708 (Fed.Cir.1987). In light of all the circumstances," }, { "docid": "23282349", "title": "", "text": "of materiality and the inference of intent were both high, warranting a finding that the patents were unenforceable for inequitable conduct. Bench Trial, slip op. at 26-27. For the reasons stated below, we find that although there are no genuine issues of material fact as to the materiality of the misstatements in Dr. Mercer’s Rule 131 declaration, there are genuine issues of material fact as to the materiality of Dr. Mercer’s failure to disclose prior art. As the district court’s determination of inequitable conduct was premised on the materiality of both the misstatements in the Rule 131 declaration and the failure to disclose prior art, we must vacate the district court’s determination that the patents were unenforceable for inequitable conduct and remand for further proceedings. I The patents in suit involve Horizontal Directional Drilling (HDD), which enables creation of horizontal bores in the ground through which utility lines can be laid by allowing a worker to pinpoint the location and/or orientation of a boring tool as it moves through the ground. Generally, HDD devices involve an underground transmitter attached to a boring tool and above-ground receivers which are either stationary or, in a “walk-over system,” are held by a worker walking over the tool. Conventional technology involves a display that shows the orientation or location of the tool, which is specified using values for pitch, yaw, and roll. In 1991, Dr. Mercer filed the first in a series of 18 related patent applications regarding HDD locating technology. In 1996, Dr. Mercer filed a continuation application that later issued as the ’678 patent. The ’678 patent claims “a method of monitoring the orientation of [a] boring tool” that is “disposed within the ground”, said method involving a sensor arrangement, which detects the orientation of the boring tool, and a separate transmitter that can communicate via an electromagnetic signal to an above-ground locator or receiver. That receiver, in turn, creates a visual representation of the orientation of the boring tool. ’678 patent, col. 25, 11. 32-61. As illustrated in the specification at Figure 2, reproduced above, an operator (26) holding the receiver" } ]

[ { "docid": "8027939", "title": "", "text": "to transfer these actions to the forums in which the plaintiffs reside, and that the plaintiffs opposed the motions. The general rule is that the party being examined must pay his or her own travel expenses to an examination in the forum state. Eckmyre v. Lambert, 1988 Lexis 10849 (D.Kan.1988). The rule is a sensible one — usually the plaintiff is being examined in the forum chosen by the plaintiff. In such a case, the plaintiff is expected to pay the costs of the litigation carried on in that forum. Furthermore, a doctor’s presence at trial is made more likely if the doctor is chosen within the jurisdiction of the court. The plaintiffs before this court have cited no case in which the party requesting physical examinations was required to pay travel expenses for those being examined. An exception to the general rule is made if the party being examined will suffer undue financial hardship by fronting the travel expenses or if the travel expenses could have been avoided by better planning. Under this exception, the court requires the party requesting the examination to advance the travel expenses, to be paid back once the litigation is finished. Chaparro v. IBP, Inc., 1994 WL 714369 (D.Kan.1994); Warren v. Weber & Heidenthaler, Inc., 134 F.Supp. 524, 525 (D.Mass.1955); Eckmyre, 1988 Lexis 10849. Here, the plaintiffs chose this district as the forum in which to litigate. They opposed the efforts of the defendants to transfer the actions to the home districts of the plaintiffs. The plaintiffs have made no showing of undue financial hardship. The fact that they estimate their total travel costs at over $15,000 does not mean that it will be an undue financial hardship for them to pay these costs. The best argument of the plaintiffs is that they paid their own travel expenses last summer to be deposed in the City of Portland, and that the physical examinations should have been scheduled at the same time as the depositions. Although the courts in several of the cited cases ordered the parties to schedule depositions and examinations during the same" } ]

[ { "docid": "18201378", "title": "", "text": "of the relevant evidence usually comes from the accused infringer. Consequently, the place where the defendant’s documents are kept weighs in favor of transfer to that location.” In re Genentech, 566 F.3d 1338, 1345 (Fed.Cir.2009) (internal quotations omitted). However, because the sources of proof originate from varied locations, this factor is neutral. An action in the Eastern District of Arkansas is not “clearly more convenient” for transporting documents that are located in the Eastern District of Texas and potentially Missouri. See, e.g., Konami Dig. Ent. Co. Ltd. v. Harmonix Music Sys., No. 6:08-CV-286-LED-JEL, 2009 WL 781134, at *4 (E.D.Tex. Mar. 23, 2009) (“While Defendants point to [the transferee district] as the location of significant sources of proof, they ignore the remaining sources of proof which originate from other locations.”); Perritt v. Jenkins, No. 4:11-CV-23-MHS-ALM, 2011 WL 3511468, at *3 (E.D.Tex. July 18, 2011) (“Because the sources of proof originate from varied locations, this factor is neutral.”). Further, “a case should not be transferred if the only practical effect is to shift inconvenience from the moving party to the nonmoving party.” Goodman Co. v. A & H Supply, Inc., 396 F.Supp.2d 766, 776 (S.D.Tex.2005). Therefore, the Court finds this factor is neutral. (2) The Availability of Compulsory Process Federal Rule of Civil Procedure 45(b)(2) allows a federal court to compel a witness’ attendance at a trial or hearing by subpoena; however, the Court’s subpoena power is limited by Federal Rule of Civil Procedure 45(c)(3), to those witnesses who work or reside less than 100 miles from the courthouse. See Volkswagen II, 545 F.3d at 316. Defendants contend that numerous WalMart employees, who will be necessary witnesses with respect to the trademark issues in this case, will be outside the subpoena power of this Court since they will have to travel (1) more than 100 miles and (2) from another state. MOTION at 19. Plaintiff argues that Defendants have not shown why they will need testimony from Wal-Mart employees, when Medallion is the manufacturer of the allegedly infringing chips. SUR-REPLY at 9. Plaintiff asserts that it does not anticipate significant documents or" }, { "docid": "10859704", "title": "", "text": "or transfer under 28 U.S.C. § 1406 will be denied. The defendants also appear to argue that transfer of venue is appropriate under 28 U.S.C. § 1404, which 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.” In evaluating whether transfer is appropriate under this statute, “[t]here is ordinarily a strong presumption in favor of the plaintiffs choice of forum, which may be overcome only when the private and public interest factors clearly point to trial in the alternative forum.” Macedo v. Boeing Co., 693 F.2d 683, 688 (7th Cir.1982) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947)). The party moving for transfer bears the burden of overcoming this strong presumption by “establishing by reference to particular circumstances, that the transferee forum is clearly more convenient.” Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir.1986). In an attempt to meet this burden, the defendants cite the following factors which they contend support transfer of venue to the Southern District of Texas: 1. The fact that the occurrences giving rise to the plaintiffs complaint took place in Texas; 2. The sources of proof and the properties involved are all located in Texas; 3. The defendants both reside in Texas; and 4. All potential witnesses reside in Texas and are beyond the reach of process of this Court. (Defendants’ Motion for Change of Venue ¶¶ 1-6.) These factors are not sufficient to overcome the strong presumption in favor of the plaintiffs choice of forum. As discussed above, it appears from the plaintiffs complaint that many of the events giving rise to this suit took place in this district. While it also appears likely that some of the events took place in Texas and in other jurisdictions, the center of gravity of this case is not evident at this time. Absent a clear indication that a district other than ours is the center of gravity of" }, { "docid": "22476617", "title": "", "text": "reasonable number of years, up to the date the suit was filed. See Metropolitan Life Insurance Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569 (2d Cir.1996). Telmex’s contacts with Texas over the time period from 1990 to 1996 were numerous; the major ones are highlighted here. Up until 1990, Tel-mex leased telephone circuits between Arizona and Texas. Telmex’s current lines interconnect with Texas at the border in McAllen and El Paso. Telmex leased real property in Texas in 1995 and paid taxes to Texas that same year. Telmex contracted to warehouse 75,000 telephone poles in Laredo around 1990-1991. Tel-mex had correspondent agreements with a number of U.S. carriers. Settlement revenues from these agreements totaled approximately $1 billion a year in 1994-1995. The total revenues derived from Texas residents totaled millions of dollars a month. Telmex also solicited ads for yellow page ads in border cities of U.S., although it is unclear exactly where. Additionally, SBC is alleged to be a Texas contact of Telmex, since SBC owns a portion of a controlling interest in Telmex and thus exerts some control over Telmex. The district court examined each Telmex contact and in isolation from the others, rather than examining the contacts “in toto” as required. See Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 779 (5th Cir.1986). In other words, even if a number of different contacts are independent of one another, if they occur with such frequency that the contacts in general are “continuous and systematic,” there is general jurisdiction. The question, then, is whether Telmex’s contacts with Texas demonstrate a business presence in Texas sufficient to confer general jurisdiction. The mere renting or ownership of property in a forum is not enough when that property is not used to conduct business in the forum. Cf. Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). And while Telmex’s other contacts may be continuous and systematic contacts which constitute doing business with Texas, Telmex has virtually no contacts which constitute doing business in Texas. Primarily, Tel-mex interconnects its Mexican lines with American lines, enabling long" }, { "docid": "8027940", "title": "", "text": "the court requires the party requesting the examination to advance the travel expenses, to be paid back once the litigation is finished. Chaparro v. IBP, Inc., 1994 WL 714369 (D.Kan.1994); Warren v. Weber & Heidenthaler, Inc., 134 F.Supp. 524, 525 (D.Mass.1955); Eckmyre, 1988 Lexis 10849. Here, the plaintiffs chose this district as the forum in which to litigate. They opposed the efforts of the defendants to transfer the actions to the home districts of the plaintiffs. The plaintiffs have made no showing of undue financial hardship. The fact that they estimate their total travel costs at over $15,000 does not mean that it will be an undue financial hardship for them to pay these costs. The best argument of the plaintiffs is that they paid their own travel expenses last summer to be deposed in the City of Portland, and that the physical examinations should have been scheduled at the same time as the depositions. Although the courts in several of the cited cases ordered the parties to schedule depositions and examinations during the same trip, the issue always arose before either trip had taken place. In Eckmyre, a case discussing the “poor planning” exception, the trip for the deposition and the trip for the examination took place one month apart. Here, more than seven months have passed in some of the cases. It is unfortunate that the two trips could not have been combined for the plaintiffs before this court, but the defendants have put forth .several reasons why that was not possible. There is no evidence that the defendants are trying to exaggerate the costs which must be borne by the plaintiffs. Accordingly, the court concludes that the plaintiffs must pay their own costs of travel to the examinations, and the defendants do not have to advance any travel costs. The court finds good cause to order physical examinations of the plaintiffs. Rule 35(a) requires, however, that an order for a physical examination must specify the time, the place, the manner, the conditions, the scope of the examination, and the person or persons who will conduct the examination." }, { "docid": "4980125", "title": "", "text": "to the defendants’ alleged manipulations, would be compelled to travel 4,000 miles to this country at great expense. Plaintiff asserts that he has no resources to make such a trip and that to direct that he do so, and to stay proceedings, for all practical purposes would prevent his prosecution of the action and put an end to the law suit. Defendants have already obtained answers to extensive written interrogatories addressed to plaintiff, some 121 in number. However, they characterize •plaintiff’s answers as non-responsive and . evasive and assert that oral examination is necessary for their preparation for trial. Generally speaking, a non-resident plaintiff should make himself available for pre-trial examination in the for- urn in which he has brought his action. Zweifler v. Sleco Laces, Inc., D.C.S.D.N.Y., 11 F.R.D. 202. This, however, is by no means an inflexible rule. Where special circumstances or undue hardship are shown to exist defendant may be required to examine plaintiff outside the forum, and this may be by written interrogatories if they are suitable and appropriate for purposes of eliciting the information to which defendant is entitled. Sullivan v. Southern Pacific Co., D.C.S.D.N.Y., 7 F.R.D. 206; Timblo v. Rhode Island Insurance Co., D.C.S.D.N.Y., 16 F.R.D. 563. In Timblo a notice to examine plaintiff, a resident of Portuguese India, in New York, was vacated because defendant had previously sought pretrial examination through written interrogatories. The Court stated that “to require the plaintiff to travel from Portuguese India to New York for the taking of his deposition in this action * * * would impose such a hardship and expense upon the plaintiff as to place the burden upon the defendant of showing that the necessary testimony cannot be secured by written interrogatories.” Id., at page 565. In the case at bar there are special circumstances indicating that plaintiff should not be compelled to come to New York unless it be shown that written interrogatories are inadequate for defendants’ legitimate purposes. Plaintiff apparently had no choice of forum. There is no showing that he could have obtained jurisdiction over defendants elsewhere or pursued his remedy" }, { "docid": "22445291", "title": "", "text": "on none of the other added activities which—coupled with the activities just described—caused us in Barnett v. Texas & Pacific Railway-Company to declare that it was “present” in New York in a case depending upon diverse citizenship. The defendant moved to dismiss the complaint upon the grounds (1) that its local activities were not “doing business” within § 6; (2) that to force it to trial two thousand miles from the place of the injury was an undue burden on interstate commerce; and (3) that the plaintiff had not served the agent required by the statute. (The last objection was eventually withdrawn.) The plaintiff countered by a motion to examine all the employees of the defendant who were in New York, some of those of its fiscal agents, and some of those of the “Consolidated Ticket Office.” Shortly thereafter he began a separate action by service upon another agent of the defendant (this to obviate the third objection), and the defendant rejoined with a motion to stay this second action until the judge should dispose of the motion to dismiss. The plaintiff thereupon served a notice of dismissal of the first action under the Rules, which the defendant followed by moving to vacate the notice. Out of this thicket of procedure the judge emerged as follows. He refused to allow the plaintiff to examine witnesses by deposition; he vacated the notice of dismissal; and he dismissed the first action because he was satisfied from the defendant’s affidavits— the plaintiff filed none—that it was not “doing business” within the meaning of § 6. Pending this decision he had stayed any proceedings in the second action. The result was to leave the plaintiff formally free to go on with the second action, but to make certain that it would be dismissed, if he attempted to do so. (The record does not show whether the second action is still outstanding.) At the outset we shall address ourselves to the chief controversy, which is whether the defendant is subject to suit in personam because of the local activities we have described. In Baltimore &" }, { "docid": "20292055", "title": "", "text": "to order that Newman’s independent mental examination be conducted at the following “time, place, manner, conditions, and scope” under Federal Rule 35(a)(2)(b): (1) February 8, 2011, and if necessary, February 9, 2011, (JS at 2); (2) in the office of plaintiffs attorney in Stockton, California (JS at 2); (3) examination by Dr. Perrillo (JS at 2); (4) under the terms and conditions set out in Dr. Perrillo’s declaration and the proposed Order filed 12/10/10 (providing that examination will not go past 5:00 p.m. each day, listing tests that may be implemented, etc.). (JS at 2.) The pending motion and the parties’ joint statement re: discovery disagreement, filed pursuant to Eastern District Local Rule 251, address these remaining disputed issues. II. DISCUSSION The Federal Rules of Civil Procedure provide that the court “may order a party whose mental or physical condition ... is in controversy to submit to a physical or mental examination by a suitably licensed or certi- fled examiner.” Fed.R.Civ.P. 35(a)(1). Because the parties have stipulated to Newman’s mental examination but disagree about various parameters of the exam, they have asked the court to decide those parameters. (JS at 6.) This court has discretion to do so. E.g., Franco v. Boston Scientific Corp., No. 05-CV-1774 RS, 2006 WL 3065580, *1-2, (N.D.Cal., Oct. 27, 2006) (not reported) (noting that a court has discretion to place “limits and conditions” on a mental exam under Rule 35, but ultimately holding that where the plaintiff has pre-existing mental conditions, the exam’s scope should not be limited, as the defendant needs to determine “what effects are attributable to” the alleged incident). A. Qualifications To Administer The Mental Examination The District argues that its proposed examiner, Dr. Richard J. Perrillo, is qualified to administer and interpret psychological and neuropsychological tests upon Newman. (JS at 7.) The District’s argument is well-taken. Dr. Perrillo is a licensed psychologist with a Ph.D. in Clinieal/Counseling Psychology, has 25 years postgraduate experience in the diagnosis of organic brain dysfunctions and emotional/mental disorders, has served as an expert witness in eases involving brain and emotional functioning, and he has served as" }, { "docid": "22034009", "title": "", "text": "or excluding such evidence will be sustained unless clearly and manifestly erroneous. Scott v. Fancher, 5 Cir. 1966, 369 F.2d 842, 844. It is at least arguable that the effect of a disease virus on a particular human being whom he had not examined was outside of the scope of Dr. Nakano’s expertise. In any event, in light of all of the testimony on the issue, the exclusion of his testimony was not so “clearly and manifestly erroneous” as to constitute reversible error. c) The Admission of Exhibit 13 Wyeth vigorously excepts to the admission into evidence of Plaintiff’s Exhibit Number 13, a document purporting to detail the suspected and confirmed cases of polio which occurred in Hidalgo County during 1970, on the ground that counsel for Reyes failed to lay the proper foundation for admission of the document under the “business records” exception to the hearsay rule. Exhibit 13 was first referred to during the cross-examination of Mrs. Ruth McDonald, Director of Nursing for the Hidalgo County Health Department. On direct examination, Mrs. McDonald testified that the County Health Department kept statistics and records on communicable diseases and immunization of the population in Hidalgo County and there her “employer” was Dr. Copenhaver, director of the Public Health Unit in Hidalgo and Cameron Counties. On cross-examination she was shown the challenged exhibit, and testified that she had seen the report previously, “when it was made up”. Mrs. McDonald also identified certain writing on the exhibit as Dr. Copenhaver’s handwriting. This tended to link Wyeth with the vaccine given Anita Reyes. The Exhibit was marked “Plaintiff’s 13” for identification, but was not offered in evidence. The following day, Oscar Garza, another defense witness, who is a Health Programs Specialist for the Texas State Department of Health, was confronted with Plaintiff’s Exhibit 13 on cross-examination. Exhibit 13 appeared to bear a strong similarity to a list prepared by Mr. Garza, although Mr. Garza’s list evidently did not show all of the same entries, and exhibited none of the hand-» writing previously identified as Dr. Copenhaver’s. Mr. Garza demonstrated a general familiarity with" }, { "docid": "11636923", "title": "", "text": "(T at 28, 230). He was thereafter employed for various time periods, including employment as a gas station attendant, which required him to operate a cash register. (T at 28). Dr. Farago, a treating provider from MidState Correctional Facility, described Plaintiff as being “of average intelligence.” (T at 201). An admission assessment performed in November of 2008 at Auburn Memorial Hospital characterized Plaintiffs intellect as “average”. (T at 229). Although Dr. Shapiro noted “borderline intellectual functioning,” she did not indicate that Plaintiff demonstrated mental retardation and she described his attention, concentration, and memory as intact. (T at 232). Dr. Shapiro also indicated that Plaintiff could perform counting, simple calculations, and serial 3s (i.e. counting downwards by threes). (T at 232). Lastly, while Plaintiff alleged depression, paranoia, and anxiety as disabling conditions in his applications for disability benefits, he did not identify intellectual functioning deficits as a disabling condition. (T at 150, 158). In light of the foregoing, this Court finds that the “ALJ was not obligated to send plaintiff, who was represented by counsel, for a consultative examination when the facts did not warrant such an examination.” Serianni, 2010 WL 786305, at *6; see also Casson v. Astrue, No. 5:10-CV-1537, 2011 WL 6955837, at *8 n. 16 (N.D.N.Y. Nov. 9, 2011). b. Severity of Impairments At step two of the sequential evaluation process, the ALJ must determine whether the claimant has a severe impairment that significantly limits his or her physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c). The following are examples of “basic work activities”: “walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling ... seeing, hearing, and speaking ... [Understanding, carrying out, and remembering simple instructions ... [u]se of judgment ... [responding appropriately to supervision, co-workers and usual work situations.” Gibbs v. Astrue, No. 07-Civ-10563, 2008 WL 2627714, at *16 (S.D.N.Y. July 2, 2008); 20 C.F.R. § 404.1521(b)(1)-(5). The claimant bears the burden of presenting evidence establishing severity. Miller v. Comm’r of Social Sec., No. 05-CV-1371, 2008 WL 2783418, at *6-7 (N.D.N.Y. July 16, 2008); see also 20 C.F.R. §" }, { "docid": "1669455", "title": "", "text": "another party wherever he wishes subject to the power of the court to grant a protective order under Rule 26(c)(2) designating a different place.” Wright and Miller, supra at Sec. 2112. It is within the discretion of the court to designate the location for a taking of depositions, and each application must be considered on its own facts and equities. Terry v. Modem Woodman of America, 57 F.R.D. 141 (W.D.Mo.1972). While a court may order a defendant to appear at any convenient place, case law indicates that “it will be presumed that the defendant will be examined at his residence or place of business or employment.” 4 Moore’s Federal Practice Sec. 26.70[1—3], at 26-514 and cases cited therein. From these principles has evolved the rule that in federal litigation, in the absence of special circumstances, a party seeking discovery must go where the desired witnesses are normally located. Salter v. Upjohn Co., 593 F.2d 649, 671 (5th Cir.1979), Dunn v. Standard Fire Insurance Co., 92 F.R.D. 31 (E.D.Tenn.1981) General Leasing Co. v. Lawrence Photo-Graphic Supply, 84 F.R.D. 130 (W.D.Mo.1979). Underlying this rule appears to be the concept that it is the plaintiffs who bring the lawsuit and who exercise the first choice as to the forum. The defendants, on the other hand, are not before the court by choice. Thus, courts have held that plaintiffs normally cannot complain if they are required to take discovery at great distances from the forum. See Work v. Bier, 107 F.R.D. 789, 792 (D.C.1985). Indeed, some cases have held that a claim of financial hardship, taken alone, does not demonstrate the exceptional or compelling circumstances necessary to alter this rule. General Leasing Co., supra at 181. While the location of the parties themselves is a primary factor, locations of their attorneys is also a relevant consideration. Haymes v. Columbia Pictures Corp., 16 F.R.D. 118, 123 (S.D.N.Y.1954). In Hyam v. American Export Lines, 213 F.2d 221, 223 (2d Cir.1954), Justice (then Judge) Harlan, held that a judicial officer “may order the deposition to be taken, if not at the forum, at an appropriate distant place" }, { "docid": "19821981", "title": "", "text": "of the operative facts; (5) the availability of process to compel attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum’s familiarity with the governing law; (8) the weight accorded the plaintiffs choice of forum; and (9) trial efficiency and the interest of justice, based on the totality of the circumstances. Miller v. Bombardier Inc., 1993 WL 378585, *2 (S.D.N.Y. Sept. 23, 1993) (Leisure, J.). “The burden of demonstrating the desirability of transfer lies with the moving party.” Fashion-in-Prints, Inc. v. General Textile Printing & Processing Corp., 1994 WL 48833, *1 (S.D.N.Y. February 14, 1994) (Leisure, J.). The Court finds that Stonewall has failed to carry this burden. The Court first considers the convenience of witnesses. Stonewall has specifically identified five persons (all third parties) from Texas who may provide testimony concerning Stonewall’s reasons for entering into the Settlement. These witnesses would obviously find it more convenient to testify in the Northern District of Texas than in the Southern District of New York. Constitution has specifically identified only one person (a Constitution employee) from New York who may offer testimony relevant to the scope of the Reinsurance Contracts’ coverage. As a result, the convenience-of-witnesses factor counsels in favor of transfer. The second consideration is the location of relevant documents and relative ease of access to sources of proof. Stonewall argues that this factor favors transfer because originals of relevant documents and court records concerning the Texas Action are located in Texas. But [a]ecess to documents and other proof is not a persuasive factor in favor of transfer without proof that documents are particularly bulky or difficult to transport, or proof that it is somehow a greater imposition for defendant to bring its evidence to New York than for plaintiff to bring its evidence to [the moving party’s proposed forum]. Sunshine Cellular v. Vanguard Cellular Systems, Inc., 810 F.Supp. 486 (S.D.N.Y.1992) (Carter, J.) (citing Stinnes Interoil, Inc. v. Apex Oil Co., 604 F.Supp. 978, 983 (S.D.N.Y.1985) (Leisure, J.)). Stonewall has not explained why copies of the original documents and records to which it refers will not suffice" }, { "docid": "23441769", "title": "", "text": "necessary showing to warrant a transfer. Thus, it is not sufficient to show that the present forum is an inconvenient one. More is required — the burden is upon the movant to make a clear showing that the proposed transferee district is a more convenient one and that the interests of justice will be better served by a trial there. To sustain his burden, the defendant stresses (1) that he, C. F. Chien, Arthur B. Rothwell and T. P. Wang, named as co-conspirators with him, all reside in Houston, Texas; (2) that more than thirty other individuals, potential witnesses as to matters touching upon plaintiffs’ charges, reside in Texas, Oklahoma or Louisiana; (3) that seven of them reside within the Southern District of Texas; (4) that while the others are beyond subpoena reach because they reside outside the district and more than 100 miles from the courthouse, they may more readily appear as witnesses if the trial is held at Houston; otherwise their depositions will be required; (5) that Cheyenne, the principal corporate conspirator, has a place of business in Houston, Texas, as do three other corporate conspirators; (6) that Cheyenne’s records and files pertaining to various transactions are located at its offices in Houston, Texas; (7) that the alleged frauds involve gas and oil explorations, most of them in Texas; (8) that expert witnesses such as geologists, appraisers and others familiar with trade practices relating to gas and oil leases and explorations are more readily available in Texas than in New York; further, that on-site inspection of properties located in Texas is required by the experts in preparation for their opinion evidence. On the plaintiffs’ side the following considerations are advanced: (1) that New York City was the nerve center of Kung’s and Ventures’ activities which resulted in the depredations upon which the suit is based; (2) seven witnesses, whose testimony is essential to the proper presentation of the Funds’ case live within easy and convenient reach of this court; these key witnesses are Clinton Davidson, the current president and a director of Ventures, who was also a director" }, { "docid": "2593771", "title": "", "text": "first problem with the Third Amended Complaint is that Parham offers no factual support for her allegation that the local market rate was $150. Even if she is correct about the local rates, however, her allegation cannot save the day. Parham fails to distinguish between differences in cost and unreasonable charges. Not all vendors charge the same amount for services, but differences in cost do not make charges unreasonable. This Court has addressed this issue in several cases. In Hudson, the plaintiff was charged $819 for title insurance when the prevailing local rate was less than $500. Hudson, 2010 WL 2365588, at *2. This Court held that, assuming those facts were true, they “merely establish[ed] that Hudson paid more for title insurance than another borrower might have” and “merely show[ed] the possibility of wrongdoing but do[ ] not nudge the claim from possible to plausible.” Id. at *5. The Fourth Circuit affirmed Hudson in a per curiam opinion. Similarly, in King v. Deutsche Bank National Trust Co., No. 3:10cv41, 2010 WL 3745599 (E.D.Va. Sept.21, 2010), the plaintiff alleged a TILA violation for an unreasonable title search charge. The plaintiff stated that she had an expert witness to testify that the local rate was approximately $100, which was $150 less than the title search fee she was charged. See id. at *5. The Court cited Hudson and ruled that the plaintiffs averments “insufficiently establish a plausible claim under TILA.” Id. at *6; see also House v. HSBC Finance Corp., No. 3:11-cv-90, 2011 WL 1883115, at *3-4 (E.D.Va. May 17, 2011) (finding that the plaintiffs claim that the $225 title examination fee was unreasonable when the local rate was not more than $150 “merely establishes that the Plaintiffs paid more for title examination than another borrower might have ... ‘but does not nudge the claim from possible to plausible’” (quoting Hudson, 2010 WL 2365588, at *8)); Little, 769 F.Supp.2d at 964-65 (finding that the plaintiffs claim that the $250 notary fee was unreasonable when the local rate was less than $50 insufficient to survive a 12(b)(6) motion: “[S]uch conclusory allegations merely establish" }, { "docid": "17431073", "title": "", "text": "the Northern District of Illinois, to discuss a potential licensing agreement with Arachnid under the subject patents-in-suit. On June 15 and 16, 2009, Patent and Trademark Office (“PTO”) Examiner Lynne Browne (the “Examiner”) issued “final” Office Actions in response to reexamination requests filed by a third-party, ECast, Inc. (“ECast”). In its Office Actions, the Examiner rejected all but two of the claims of the Arachnid reexamination patents. III. VENUE IS APPROPRIATE A. The § 1404 Factors 28 U.S.C. § 1404(a) provides that “[f|or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought,” In deciding whether to transfer venue, courts examine (1) whether “the plaintiff could have brought the case initially in the proposed transferee forum;” and (2) whether the transfer would “promote the convenience of parties and witnesses and would be in the interests of justice.” Clarendon Nat’l Ins. Co. v. Pascual, No. 99 Civ. 10840(JGK)(AJP), 2000 WL 270862, at *2 (S.D.N.Y. Mar. 13, 2000) (quoting Coker v. Bank of America, 984 F.Supp. 757, 764 (S.D.N.Y.1997)). Section 1404(a) is intended “to prevent waste of time, energy and money and to protect litigants, witnesses and [the] public against unnecessary inconvenience and expense.” MasterCard Int’l Inc. v. Lexcel Solutions, Inc., No. 03 Civ. 7157(WHP), 2004 WL 1368299, at *5 (S.D.N.Y. June 16, 2004) (quoting Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)) (internal quotation marks omitted). “The conveniences should be measured at the time they are balanced, rather than at the time of the original complaint, since the court’s primary concern is determining the connection between the action and the forum.” Employers Ins. of Wausau v. Fox Entm’t Group, Inc., 522 F.3d 271, 277 n. 5 (2d Cir.2008). The factors that district courts in the Second Circuit consider in determining whether one venue is more convenient than another include: (1) the plaintiffs choice of forum, (2) the convenience of the witnesses, (3) the location of relevant documents and relative ease of access to" }, { "docid": "18201381", "title": "", "text": "relationship to the additional distance to be traveled.” Volkswagen I, 371 F.3d at 204-05. Where witnesses are from widely scattered locations, a trial court should not consider its “central location ... in the absence of witnesses within the plaintiffs choice of venue.” Genentech, 566 F.3d at 1344. “In considering the availability and convenience of witnesses, a court must concentrate primarily upon the availability and convenience of key witnesses.” Remmers, 2009 WL 3617597, at *5; Shoemake v. Union Pacific R.R. Co., 233 F.Supp.2d 828, 832 (E.D.Tex.2002). Moreover, it is the convenience of non-party witnesses, rather than of party witnesses, that is more important and accorded greater weight in a transfer of venue analysis. Shoemake, 233 F.Supp.2d at 832. Again, Defendants’ party and non-party witnesses are located in Arkansas and Missouri, and Plaintiffs party and non-party witnesses are located in the Eastern District of Texas. Defendants have identified no specific witnesses that will be required to testify on their behalf. Further, the Plaintiffs evidence indicates that, at least for WalMart employees in Bentonville, the distance to the courthouse in Sherman is only approximately 30 extra minutes. Therefore, the Court finds this factor is also neutral. ft) All Other Practical Problems a. Patent Rules Plaintiff argues that the patent rules of the Eastern District of Texas help streamline the parties’ preparation for trial, which makes this factor weigh against transfer. Defendants argue that this case is primarily a trademark case, based on Plaintiffs intent to move for a preliminary injunction based on the trademark, trade dress, and unfair competition issues. Therefore, Defendants argue that the fact that the Eastern District of Arkansas does not have patent rules should not weigh against transfer. The Court finds that this factor does not support transfer. See EMG Tech., LLC v. Microsoft Corp., No. 6:09-CV-367, 2010 WL 3835768, at *5 (E.D.Tex. Sept. 28, 2010). b. Plaintiffs Choice of Forum “While not a distinct factor in the transfer of venue analysis, a plaintiffs choice of venue ‘is nonetheless taken into account as it places a significant burden on the movant to show good cause for the transfer.’ ”" }, { "docid": "18201382", "title": "", "text": "courthouse in Sherman is only approximately 30 extra minutes. Therefore, the Court finds this factor is also neutral. ft) All Other Practical Problems a. Patent Rules Plaintiff argues that the patent rules of the Eastern District of Texas help streamline the parties’ preparation for trial, which makes this factor weigh against transfer. Defendants argue that this case is primarily a trademark case, based on Plaintiffs intent to move for a preliminary injunction based on the trademark, trade dress, and unfair competition issues. Therefore, Defendants argue that the fact that the Eastern District of Arkansas does not have patent rules should not weigh against transfer. The Court finds that this factor does not support transfer. See EMG Tech., LLC v. Microsoft Corp., No. 6:09-CV-367, 2010 WL 3835768, at *5 (E.D.Tex. Sept. 28, 2010). b. Plaintiffs Choice of Forum “While not a distinct factor in the transfer of venue analysis, a plaintiffs choice of venue ‘is nonetheless taken into account as it places a significant burden on the movant to show good cause for the transfer.’ ” Remmers, 2009 WL 3617597, at *7 (citing Volkswagen II, 545 F.3d at 314 n. 10). “This ‘good cause’ burden reflects the appropriate deference to which the plaintiffs choice of venue is entitled.” Id. (citing Volkswagen II, 545 F.3d at 315). “If the defendant cannot meet this burden, the plaintiffs choice of forum should be respected.” BlueEarth Biofuels, LLC v. Hawaiian Elec. Co., Inc., No. 3:08-CV-1779-L, 2009 WL 918459, at *4 (N.D.Tex. Apr. 3, 2009) (citing Volkswagen II, 545 F.3d at 315). However, “[w]hen the chosen district has little or no factual nexus to the case, the plaintiffs choice of forum is less significant if other factors weigh in favor of a transfer.” Remmers, 2009 WL 3617597, at *7 (citing Volkswagen II, 545 F.3d at 315-18). In the present case, the Eastern District of Texas, Sherman Division, has a clear factual nexus to the case given that Plaintiff is located here, and the patented technology was developed here. Therefore, the Court finds that Defendants must meet their burden to show good cause for the transfer, and" }, { "docid": "2593772", "title": "", "text": "the plaintiff alleged a TILA violation for an unreasonable title search charge. The plaintiff stated that she had an expert witness to testify that the local rate was approximately $100, which was $150 less than the title search fee she was charged. See id. at *5. The Court cited Hudson and ruled that the plaintiffs averments “insufficiently establish a plausible claim under TILA.” Id. at *6; see also House v. HSBC Finance Corp., No. 3:11-cv-90, 2011 WL 1883115, at *3-4 (E.D.Va. May 17, 2011) (finding that the plaintiffs claim that the $225 title examination fee was unreasonable when the local rate was not more than $150 “merely establishes that the Plaintiffs paid more for title examination than another borrower might have ... ‘but does not nudge the claim from possible to plausible’” (quoting Hudson, 2010 WL 2365588, at *8)); Little, 769 F.Supp.2d at 964-65 (finding that the plaintiffs claim that the $250 notary fee was unreasonable when the local rate was less than $50 insufficient to survive a 12(b)(6) motion: “[S]uch conclusory allegations merely establish that Little might have paid more for the notarization service than another borrower might have, not that the fee was unreasonable” (citations omitted)). The authority Parham cites to allow this claim to survive consists of an order issued in Rodriguez v. GMAC Mortgage Corp., No. 3:07cv665 (E.D.Va. Oct. 10, 2008), and an order issued in Curry v. Flagstar Bank, No. 1:01-cv-1169 (E.D.Va. Apr. 1, 2011), in which this Court denied a motion for summary judgment and a motion to dismiss, respectively, in rulings from the bench. The Court finds these orders, which do not set forth the reasoning as to why the claims survived in these cases, to be unpersuasive in the matter at hand in the face of Hudson, King, and Little. Thus, although the Court finds that Par-ham has alleged a sufficient offer of tender, her case suffers a fundamental flaw in that she has not pled facts to support her assertion that the undisclosed title search fee was unreasonable. Parham has set forth no other violations of TILA in the Third Amended" }, { "docid": "22140495", "title": "", "text": "abuse its discretion in concluding that Hertz’s common policy demonstrated little regarding whether the constituent issues that bear on Hertz’s ultimate liability are provable in common. An examination of the second category of evidence, the testimony of Hertz employees, confirms that the district court reasonably concluded that plaintiffs had not satisfied their burden to show that such substantial common issues are present here. Plaintiffs rely principally on the deposition of a single Hertz representative, Robert Ciccotto, who testified about the job duties of station managers, but this testimony provides, as the district court concluded, only mixed support for plaintiffs. Ciccotto, an operations manager who had worked at multiple Hertz locations nationwide, testified that each Hertz operation was “unique” and that there were “some variances” among the company’s locations. Ciccotto Dep. at 107:6-108:5. He also testified that a station manager who transferred from one location to another might not necessarily be able, when he began work at the new location, to perform all his required duties without some training relating to the specific Hertz location. Id. at 112:12-113:6. While Ciccotto also stated generally that station managers at various locations have “similar responsibilities” and that them jobs are “more or less the same,” id. at 106:13-107:15, it was not unreasonable for the district court to conclude from Ciecotto’s testimony as a whole that Hertz’s liability might require “individual factual analysis” to resolve, given Ciccotto’s reference to differences among Hertz locations and his suggestion that the “primary duties” of managers differ across locations. See Myers, 2007 WL 2126264, at *6. Like Ciccotto, Irwin Pollack, a Hertz division vice-president for employee relations, also testified generally about the duties of station managers, stating that “most of [them] would be similar,” Pollack Dep. at 35:10, but he did not elaborate. Because this testimony is quite general and largely inconclusive, we cannot say that Judge Cogan exceeded his allowable discretion in concluding that this evidence did not establish that liability could be proven in common. See Myers, 2007 WL 2126264, at *5. Plaintiffs respond that the district court committed legal error in ignoring “uncontested” questions in its" }, { "docid": "8452684", "title": "", "text": "Cabana’s attorney was not trying to preserve a privilege or enforce a limitation on evidence ordered by this Court. Furthermore, there is simply no evidence that counsel for Dart harassed Dr. Sica. Accordingly, the objections were inappropriate under Rule 30(d)(1), and Dart’s motion to compel will be allowed. ORDER For the reasons set forth in the Memorandum above: 1) the motion of defendants Dart and En-sco to compel a mental examination of the plaintiff (Docket No. 43) is ALLOWED; plaintiff will appear at a mutually agreeable time and place on April 10 and 11, 2001, in Providence, Rhode Island to be examined; 2) the motion of defendants Forcier and KNA for leave to amend their respective answers to add counterclaims for breach of contract (Docket No. 46) is • ALLOWED; 3) the motion of plaintiff for leave to file an amended complaint (Docket No. 48) is ALLOWED; 4) the motion of plaintiff to modify this Court’s Scheduling Order (Docket No. 49) is DENIED; 5) the motion of defendants Dart and En-sco to compel plaintiffs medical toxicology expert, Dr. Grace Ziem, to agree to be deposed (Docket No. 56) is ALLOWED subject to the following conditions: a) Dr. Ziem shall be reimbursed at $375 per hour for deposition time (minimum of six hours per day); b) Dr. Ziem shall be reimbursed at $325 per hour for preparation time (maximum of six hours total); c) Dr Ziem’s deposition shall take play in Maryland at a mutually agreeable time and place; d) Dart and Ensco will reimburse Cabana’s attorney for reasonable travel and lodging expenses (but not legal fees) incurred in connection with Dr. Ziem’s deposition; and 6) the motion of defendants Dart and En-sco to compel plaintiffs treating physician, Dr. Robban A. Sica, to answer deposition questions regarding prior involvement in any litigation or disciplinary proceedings (Docket No. 63) is ALLOWED. So ordered." }, { "docid": "20436375", "title": "", "text": "also In re Top Tankers, Inc. Sec. Litig., No. 06 Civ. 13761, 2008 WL 2944620, at *3 (S.D.N.Y. July 31, 2008); In re BankAmerica Corp. Sec. Litig., 210 F.R.D. 694, 700 (E.D.Mo. 2002). 1. Procedural Fairness The settlement is procedurally fair, reasonable, adequate, and not a product of collusion. See Fed.R.Civ.P. 23(e); Reyes, 2011 WL 4599822, at *4. The settlement was reached after the Parties had conducted a thorough investigation and evaluated the claims and defenses, and after arm’s-length negotiations between the Parties. Swartz Deel. ¶¶ 4-13. Class Counsel examined Defendant’s data showing the number of Class Members in relevant job titles, salaries, incentive pay, weeks worked, location of employment, and branch hours information. Id. ¶ 10. Plaintiffs and Defendant both retained economic experts to analyze the data and perform damages calculations. Id. On June 13, 2012, the Parties attended an all-day mediation in Chicago with an experienced employment law mediator. Id. ¶ 11. The Parties came to a preliminary agreement on the material terms of the settlement at the mediation. Id. These arm’s-length negotiations involved counsel and a mediator well-versed in wage and hour law, raising a presumption that the settlement achieved meets the requirements of due process. See Wal-Mart Stores, 396 F.3d at 116; Reyes, 2011 WL 4599822, at *4. In addition, courts encourage early settlement of class actions, when warranted, because early settlement allows class members to recover without unnecessary delay and allows the judicial system to focus resources elsewhere. See Hernandez v. Merrill Lynch & Co., Inc., No. 11 Civ. 8472, 2012 WL 5862749, at *2 (S.D.N.Y. Nov. 15, 2012) (endorsing early settlement of wage and hour class action); Castagna v. Madison Square Garden, L.P., No. 09 Civ. 10211, 2011 WL 2208614, at *6 (S.D.N.Y. June 7, 2011) (commending Plaintiffs’ attorneys for negotiating early settlement); Diaz v. E. Locating Serv. Inc., No. 10 Civ. 4082, 2010 WL 5507912, at *3 (S.D.N.Y. Nov.29, 2010) (granting final approval of pre-suit class settlement in wage and hour case); In re Interpublic Sec. Litig., No. 02 Civ. 6527, 2004 WL 2397190, at * 12 (S.D.N.Y. Oct. 26, 2004) (early settlements" } ]

[ { "docid": "22664765", "title": "", "text": "84 L.Ed.2d 714 (1985); 5 U.S.C. § 701(a)(2) (the “APA”). Although we agree \"with the government’s ultimate conclusion, we do not embrace the government’s argument that the streamlining decision is inherently discretionary. Indeed, portions of the stream lining decision are non-discretionary determinations that we would ordinarily have jurisdiction to review. Our analysis stems not from the APA but instead from the statute that specifically addresses our jurisdiction to review removal proceedings, namely the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). See 8 U.S.C. §§ 1252(a)(1); 1252(b). IIRIRA “dramatically altered this court’s jurisdiction” to review the merits of final decisions by the IJ or BIA. Romero-Torres, 327 F.3d at 889-90 (quoting Kalmv v. INS, 133 F.3d 1147, 1149 (9th Cir.1997)). Specifically, IIRIRA eliminated our jurisdiction to review “discretionary decisions involved in the cancellation of removal context, including the ultimate discretionary decision to deny relief.” Romero-Torres, 327 F.3d at 890. We may, for example, review whether an alien has met the “ten years of continuous physical presence” requirement because this is an objective, factual inquiry. See Kalaw, 133 F.3d at 1150-51. Likewise, we have jurisdiction to review a non-discretionary question such as whether an adult daughter qualifies as a “child” under the statute. See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.2002). But we may not review whether an alien has demonstrated “exceptional and extremely unusual hardship” because this inquiry is discretionary in nature. See Romero-Torres, 327 F.3d at 892. In situations where we have appellate jurisdiction, IIRIRA requires the consolidation, in a single petition for review from a final order, “all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States.” 8 U.S.C. § 1252(b)(9). The Supreme Court interpreted less sweeping language in the predecessor to IIRIRA as enabling an alien to bring a challenge to “all matters on which the validity of the final order is contingent.” INS v. Chadha, 462 U.S. 919, 938, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (internal citation omitted). Because the" } ]

[ { "docid": "22387103", "title": "", "text": "evidence did not support the conclusion that the petitioner gave knowing and voluntary consent. In this case, Serrano’s own testimony establishes that he was given a choice between deportation proceedings and leaving voluntarily, and that he chose the latter. He alleges no misrepresentation by immigration officials, nor any other circumstances to indicate that his rejection of the offer to be heard by an IJ constituted anything other than a knowing and voluntary agreement to depart in lieu of removal proceedings. Serrano’s testimony is substantial evidence supporting the conclusion that Serrano knowingly and voluntarily consented to such voluntary departure. By contrast in Ibarra-Flores, 439 F.3d at 620, the petitioner gave plausible testimony that he did not knowingly and voluntarily accept administrative voluntary departure because of the misrepresentations of immigration officers. Based on this testimony, we concluded that substantial evidence did not support the IJ’s determination that the petitioner’s decision to accept voluntary departure was knowing and voluntary. Id. at 619. See also Tapia v. Gonzales, 430 F.3d 997, 1002 (9th Cir.2005) (holding that petitioner — who was merely turned away at the border when trying to reenter the United States after a brief departure, and who did not depart pursuant to a formalized process resulting in an agreement to depart and not to return unless in accordance with the legal entry process — did not interrupt his accrual of continuous physical presence). We hold here that Serrano’s testimony regarding his acceptance of the opportunity to depart from the United States voluntarily, after having been apprehended in a workplace raid, combined with his rejection of an opportunity to go before an IJ, constitutes substantial evidence of a knowing and voluntary consent to administrative voluntary departure in lieu of removal proceedings. “[I]f voluntary departure is accepted in lieu of being placed in deportation or removal proceedings, the alien agrees to relinquish the right to present a claim for relief that might otherwise allow the alien to stay in the United States.” Ibarra-Flores, 439 F.3d at 620. Because the record contains substantial evidence that immigration officials returned Serrano to Mexico in 1990 under circumstances" }, { "docid": "22387102", "title": "", "text": "accepted its terms.” Id. at 908. Since the filing of petitioners’ initial brief, we have also adopted this principle. See Ibarra-Flores v. Gonzales, 439 F.3d 614, 619 (9th Cir.2006) (holding that an expressed and understood threat of deportation is requisite to presence-breaking voluntary departure). Serrano argues that he was not advised of his privileges and rights and did not knowingly agree to administrative voluntary departure in 1990, that he did not have the opportunity to be heard by an immigration judge, and that he therefore did not interrupt the accrual of continuous physical presence. Yet Serrano’s account of the circumstances of his departure persuasively suggests otherwise. Serrano testified to the IJ that he was caught in a work raid conducted by the then-INS, and, crucially, admitted twice that he had been given the opportunity to go before an immigration court and had explicitly rejected it and signed a voluntary departure document instead, suggesting that he preferred removal because it was “faster.” Serrano’s case is thus critically different from cases where we have found that substantial evidence did not support the conclusion that the petitioner gave knowing and voluntary consent. In this case, Serrano’s own testimony establishes that he was given a choice between deportation proceedings and leaving voluntarily, and that he chose the latter. He alleges no misrepresentation by immigration officials, nor any other circumstances to indicate that his rejection of the offer to be heard by an IJ constituted anything other than a knowing and voluntary agreement to depart in lieu of removal proceedings. Serrano’s testimony is substantial evidence supporting the conclusion that Serrano knowingly and voluntarily consented to such voluntary departure. By contrast in Ibarra-Flores, 439 F.3d at 620, the petitioner gave plausible testimony that he did not knowingly and voluntarily accept administrative voluntary departure because of the misrepresentations of immigration officers. Based on this testimony, we concluded that substantial evidence did not support the IJ’s determination that the petitioner’s decision to accept voluntary departure was knowing and voluntary. Id. at 619. See also Tapia v. Gonzales, 430 F.3d 997, 1002 (9th Cir.2005) (holding that petitioner — who" }, { "docid": "22600759", "title": "", "text": "petitioner was served with a Notice to Appear alleging that petitioner is an alien who is present in the United States without being admitted or paroled or who arrived at a time and place other than as designated by the Attorney General. At the hearing before the immigration judge (“U”), petitioner conceded that he is removable as charged and applied for cancellation of removal pursuant to INA § 240A(b)(1), codified at 8 U.S.C. § 1229b(b)(1). To be entitled to cancellation of removal, an alien must have ten years continuous physical presence in the United States. In response to questions by the IJ, petitioner made statements from which the IJ concluded that petitioner had received administrative voluntary departure in 1996. Accordingly, the IJ denied the application for cancellation of removal on the ground that petitioner had failed to amass the requisite ten years continuous physical presence in the United States. Petitioner appealed to the BIA, which affirmed the IJ’s decision without opinion on March 16, 2004. Petitioner filed a timely petition for review with this court. III. Analysis Because the BIA affirmed the IJ’s decision without opinion, “we review the IJ’s decision, which constitutes the final agency determination.” Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir. 2005). We “review for substantial evidence the BIA’s non-discretionary factual determinations, including the determination of continuous presence.” Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 850-51 (9th Cir.2004). “Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.), amended by 339 F.3d 1012 (9th Cir.2003) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). On this record, the IJ’s conclusion that petitioner is ineligible for cancellation of removal because he received administrative voluntary departure is not supported by substantial evidence. We have held that an alien who departs the United States pursuant to the formal process known as" }, { "docid": "22774435", "title": "", "text": "PER CURIAM: Javier Maravilla Maravilla (“Maravilla”) and his wife, Claudia Lopez Sanchez (“Lopez”), natives and citizens of Mexico, petition for review of a decision of the Board of Immigration Appeals (“BIA”) denying their motion to reopen their applications for cancellation of removal, which was based on an ineffective assistance of counsel claim. This court has jurisdiction under 8 U.S.C. § 1252(b)(2). We grant the petition and remand for further proceedings. I. FACTS AND PROCEDURAL BACKGROUND Petitioners are husband and wife, who were charged with being present in the United States without having been admitted or paroled. They hired attorney Miguel Gadda to represent them, admitted the charges, and applied for cancellation of removal. At their first hearing, however, Gadda failed to appear. The Immigration Judge (“IJ”) expressed frustration with Gadda’s performance — or rather, his lack thereof — and, along with counsel for the INS, advised petitioners as to what evidence they could present at the re-scheduled hearing. Although Gadda did appear at the second hearing, petitioners’ application for cancellation of removal was denied. The IJ stated that Lopez had failed to provide evidence of her ten-year continuous physical presence, and that, in any case, petitioners’ removal would not visit exceptional and extremely unusual hardship on their children or on Maravilla’s father, the only qualifying relatives. Still represented by Gadda, petitioners appealed to the BIA. While the appeal was pending, however, Gadda was disbarred from the practice of law before the Board. After the BIA summarily affirmed the IJ’s opinion, petitioners hired new counsel and timely moved to reopen on grounds of ineffective assistance of counsel. They claimed that Gadda had failed to explain to them the evidentiary requirements of a successful application for cancellation of removal, and had failed adequately to prepare for and argue their case. Crucially, they argued, Gadda overlooked the fact that, after the IJ decision, Maravilla’s mother became a lawful permanent resident. As she was now a qualifying relative whose hardship counted towards petitioners’ application on appeal, Gadda should have supplemented the appellate brief with this new information. Further, Gadda never asked petitioners whether they" }, { "docid": "22698199", "title": "", "text": "on or about January 30, 2000, Tapia made it across the border, albeit without proper authorization, and thereafter returned to his home and family in Oregon. On March 15, 2001, the government brought proceedings to remove both Tapia and his wife from the United States. Each applied for cancellation of removal and adjustment of status to that of an alien lawfully admitted for permanent residence under 8 U.S.C. § 1229b(b). Mrs. Tapia prevailed as the primary caregiver for her seriously ill mother, a permanent resident awaiting a liver transplant. The IJ ruled against Tapia, however, relying on Romalez-Alcaide, as noted above. In that decision, the BIA held that an alien who departed pursuant to a grant of administrative voluntary departure terminated the continuity of his physical presence. 23 I. & N. Dec. at 429. Although the IJ characterized each of Tapia’s four failed attempts to reenter the United States as merely “a turnaround at the border,” he concluded that such a turnaround was legally equivalent to the administrative voluntary departure at issue in Romalez-Alcaide, since in both situations the alien made a choice to depart the country in lieu of removal proceedings. As a result, the IJ held that Tapia did not satisfy the ten-year requirement and was not eligible for cancellation of removal. The IJ denied Tapia’s petition and granted him voluntary departure in lieu of removal. The BIA affirmed the IJ’s decision without opinion. II. JURISDICTION While 8 U.S.C. § 1252(a)(2)(B) precludes a court’s direct review of the Attorney General’s discretionary decisions, the court may consider the predicate legal question of whether the IJ properly applied the law to the facts in determining an individual’s eligibility to be considered for relief. See Romero-Torres v. Ashcroft, 327 F.3d 887, 889-90 (9th Cir.2003). The determination of whether an alien has satisfied the continuous physical presence requirement is a factual inquiry guided by legal standards. The decision is non-discretionary, so we retain appellate jurisdiction over the issue. See Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997). III. DISCUSSION Where the BIA affirms an IJ’s order without opinion, we review the" }, { "docid": "22784764", "title": "", "text": "probability that petitioners will be persecuted if removed to Indonesia. Wakkary, 558 F.3d at 1067. V. CANCELLATION OF REMOVAL The IJ denied pétitioners’ application for cancellation of removal because petitioners did not demonstrate that their removal would result in exceptional and extremely unusual hardship to their two U.S. citizen daughters. See 8 U.S.C. § 1229b(b)(l)(D). This court lacks jurisdiction to review an agency’s “exceptional and extremely unusual hardship” determination. See Romero-Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir.2003) (holding that the “ ‘exceptional and extremely unusual hardship’ determination is a subjective, discretionary judgment that has been carved out of our appellate jurisdiction”). This court retains jurisdiction, however, to review due process challenges and other questions of law. See, e.g., Martinez-Rosas v. Gonzales, 424 F.3d 926, 930(9th Cir.2005). We review our own jurisdiction de novo. Taslimi, 590 F.3d at 984. Petitioners argue that the BIA violated their due process rights by failing to consider the effect of Sael and Lolong I. The BIA violates an alien’s due process rights if: “(1) the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case, and (2) the alien demonstrates prejudice, which means that the outcome of the proceeding may have been affected by the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620-21(9th Cir.2006) (citations and internal quotation marks omitted). We decided Sael and Lolong I after the IJ rendered his decision. Both cases involved applications for asylum and neither dealt with cancellation of removal. Accordingly, neither case changed the law for cancellation of removal. The BIA’s failure to address two irrelevant cases does not render the proceeding fundamentally unfair. Because petitioners fail to state a colorable due process claim, we lack jurisdiction to review the IJ’s denial of petitioners’ application for cancellation of removal. VI. CONCLUSION In summary, we hold that on this record, Christians are a disfavored group in Indonesia and conclude that the BIA erred in failing to analyze petitioners’ withholding claim according to disfavored group analysis. Therefore, we grant the petition for review and remand for the BIA to apply disfavored group analysis." }, { "docid": "22387100", "title": "", "text": "(9th Cir.2005). In reviewing for substantial evidence, we follow this rule: “To obtain reversal under this standard, the petitioner must demonstrate that the evidence not only supports that conclusion, but compels it.” Lopez-Alvarado, 371 F.3d at 1115 (internal quotation and citation omitted). III In order to be eligible for cancellation of removal, an applicant must first have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application.... ” 8 U.S.C. § 1229b(b)(l)(A). Service with an NTA halts an alien’s accrual of continuous physical presence. 8 U.S.C. §§ 1229b(d)(l). Because Serrano was served with the present NTA in August of 1997, he would need to establish continuous physical presence in the United States since August of 1987 to meet the requirements of section 1229b(b)(l)(A). If Serrano’s brief trip to Mexico in the intervening period interrupted his accrual of presence, then Serrano is statutorily ineligible for cancellation of removal. A regulatory section governing the interruption of continuous physical presence provides that “a period of continuous physical presence is terminated whenever ... the alien has voluntarily departed under the threat of deportation.... ” 8 C.F.R. § 240.64(b)(3) (2003). In In re Romalez-Alcaide, 23 I & N Dec. 423, 429 (BIA 2002) (en banc), the BIA held, in accordance with this regulation, that an alien who voluntarily departs under threat of deportation breaks his or her continuous physical presence period for cancellation of removal. In Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 973 (9th Cir.2003) (per curiam), we upheld the BIA’s interpretation in Romalez, stressing that to declare otherwise would be inconsistent with the very purpose of removal. Serrano does not contest this general proposition but rather its applicability to him, arguing that his return to Mexico should not interrupt his continuous physical presence, Romalez notwithstanding. Serrano cites to an Eighth Circuit case, Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir.2005), in which our sister circuit stated, “before it may be found that a presence-breaking voluntary departure occurred, the record must contain some evidence that the alien was informed of and" }, { "docid": "22625247", "title": "", "text": "of Immigration Appeals (“BIA”) erred in affirming the IJ’s decision. We therefore grant the petition for review and remand for consideration of the discretionary determinations of exceptional and extremely unusual hardship and moral character. Background In 1997, Hugo Lopez-Alvarado, a native and citizen of Guatemala, along with his wife Maria Lizardo de Lopez and son Hugo, natives and citizens of Mexico, applied for cancellation of removal, asserting that they have continuously resided in the United States for over ten years and that their removal would cause exceptional and extremely unusual hardship for their three-year-old citizen daughter. Upon concluding that both Mr. and Mrs. Lopez failed to establish ten years of continuous presence, the IJ denied the application for cancellation of removal, but granted voluntary departure. In her oral opinion, the IJ observed that, although Mr. and Mrs. Lopez were not “untruthful,” their testimony was “vague and indefinite and the witnesses have not been able to pin down specific time frames to the Court’s satisfaction.” Nonetheless, the IJ did not make an adverse credibility finding. The IJ noted that Mrs. Lopez could provide only testimonial evidence of her presence from 1987 to 1993. Although Mr. Lopez offered more extensive documentation of his presence than his wife, the IJ took exception to the fact that he could provide only testimonial evidence of his presence in the United States for a portion of the ten-year period. Proceeding under the view that “[t]he instructions to the application for cancellation of removal ... require an applicant to document physical presence in the United States,” the IJ considered the witnesses’ testimony, without documentary evidence, insufficient to establish continuous presence and denied the applications. Under its streamlining procedures, 8 C.F.R. § 3.1(a)(7) (2002), the BIA affirmed the IJ’s decision without opinion. Jurisdiction Eligibility for cancellation of removal is based upon both discretionary and non-discretionary factors. 8 U.S.C. § 1229(b)(b). We do not have jurisdiction to review “decisions by the BIA that involve the exercise of discretion.” Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.2003). We retain jurisdiction, however, to review for substantial evidence the BIA’s non-discretionary" }, { "docid": "22387098", "title": "", "text": "establish adequate continuous physical presence. The IJ applied In re Romalez-Alcaide, 23 I & N Dec. 423 (BIA 2002) (en banc), to determine that Serrano’s continuous physical presence was interrupted when Serrano was compelled — as the IJ concluded was the case, based on Serrano’s testimony — to depart in 1990 under the threat of removal proceedings. The IJ noted that Serrano had been given the opportunity to go before an IJ at that time but had chosen to leave voluntarily instead. Because of this alleged administrative voluntary departure, Serrano fell three years short of the required ten years’ continuous physical presence. Though denying Serrano’s application for cancellation of removal, the IJ granted Serrano voluntary departure. Serrano appealed to the BIA, which affirmed the IJ without opinion. Serrano in his petition for review asks us to review the denial of his application. II Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), we lack jurisdiction to review any discretionary judgment regarding certain components of the granting of relief for cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B). However, we have jurisdiction to review whether an alien has met the “ten years of continuous physical presence requirement because this is an objective, factual inquiry.” Falcon Carriche v. Ashcroft, 350 F.3d 845, 853 (9th Cir.2003) (internal quotation marks omitted). We must accord Chevron deference to the BIA’s statutory interpretations of the Immigration and Naturalization Act (“INA”). INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). We review for substantial evidence the agency’s decision concerning an applicant’s establishment of ten years of continuous physical presence in the United States. See Lopez-Alvarado v. Ashcroft, 371 F.3d 1111, 1115 (9th Cir.2004), amended by 381 F.3d 847 (9th Cir.2004). Here, because the BIA affirmed the IJ’s decision without opinion, the IJ’s decision constitutes the final agency action for purposes of our review. See 8 C.F.R. § 1003.1(e)(4) (ii); see also Tapia v. Gonzales, 430 F.3d 997, 999" }, { "docid": "22600760", "title": "", "text": "III. Analysis Because the BIA affirmed the IJ’s decision without opinion, “we review the IJ’s decision, which constitutes the final agency determination.” Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir. 2005). We “review for substantial evidence the BIA’s non-discretionary factual determinations, including the determination of continuous presence.” Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 850-51 (9th Cir.2004). “Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.), amended by 339 F.3d 1012 (9th Cir.2003) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). On this record, the IJ’s conclusion that petitioner is ineligible for cancellation of removal because he received administrative voluntary departure is not supported by substantial evidence. We have held that an alien who departs the United States pursuant to the formal process known as administrative voluntary departure interrupts his physical presence in the United States so that, should the alien return, he must begin anew the process of accumulating physical presence for immigration purposes. Vasquez-Lopez v. Ashcroft, 343 F.3d 961 (9th Cir.2003) (per curiam). However, not all departures after contact with immigration officials constitute administrative voluntary departures that interrupt an alien’s continuous physical presence in the United States. As we have recently recognized, when an alien is simply “turned around at the border” by immigration officials, the alien’s departure from the United States does not serve to interrupt the alien’s continuous physical presence. See Tapia v. Gonzales, 430 F.3d 997 (9th Cir.2005). Here, one can only speculate as to whether petitioner received administrative voluntary departure. No voluntary departure form was produced, and the only testimony that was presented on this issue was petitioner’s own confusing testimony. Specifically, when asked whether he had ever received voluntary departure, petitioner answered: A. I think once in 1996, but I got no option. Q. You got what? A. No option when I was" }, { "docid": "22387099", "title": "", "text": "See 8 U.S.C. § 1252(a)(2)(B). However, we have jurisdiction to review whether an alien has met the “ten years of continuous physical presence requirement because this is an objective, factual inquiry.” Falcon Carriche v. Ashcroft, 350 F.3d 845, 853 (9th Cir.2003) (internal quotation marks omitted). We must accord Chevron deference to the BIA’s statutory interpretations of the Immigration and Naturalization Act (“INA”). INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). We review for substantial evidence the agency’s decision concerning an applicant’s establishment of ten years of continuous physical presence in the United States. See Lopez-Alvarado v. Ashcroft, 371 F.3d 1111, 1115 (9th Cir.2004), amended by 381 F.3d 847 (9th Cir.2004). Here, because the BIA affirmed the IJ’s decision without opinion, the IJ’s decision constitutes the final agency action for purposes of our review. See 8 C.F.R. § 1003.1(e)(4) (ii); see also Tapia v. Gonzales, 430 F.3d 997, 999 (9th Cir.2005). In reviewing for substantial evidence, we follow this rule: “To obtain reversal under this standard, the petitioner must demonstrate that the evidence not only supports that conclusion, but compels it.” Lopez-Alvarado, 371 F.3d at 1115 (internal quotation and citation omitted). III In order to be eligible for cancellation of removal, an applicant must first have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application.... ” 8 U.S.C. § 1229b(b)(l)(A). Service with an NTA halts an alien’s accrual of continuous physical presence. 8 U.S.C. §§ 1229b(d)(l). Because Serrano was served with the present NTA in August of 1997, he would need to establish continuous physical presence in the United States since August of 1987 to meet the requirements of section 1229b(b)(l)(A). If Serrano’s brief trip to Mexico in the intervening period interrupted his accrual of presence, then Serrano is statutorily ineligible for cancellation of removal. A regulatory section governing the interruption of continuous physical presence provides that “a period" }, { "docid": "22698200", "title": "", "text": "in both situations the alien made a choice to depart the country in lieu of removal proceedings. As a result, the IJ held that Tapia did not satisfy the ten-year requirement and was not eligible for cancellation of removal. The IJ denied Tapia’s petition and granted him voluntary departure in lieu of removal. The BIA affirmed the IJ’s decision without opinion. II. JURISDICTION While 8 U.S.C. § 1252(a)(2)(B) precludes a court’s direct review of the Attorney General’s discretionary decisions, the court may consider the predicate legal question of whether the IJ properly applied the law to the facts in determining an individual’s eligibility to be considered for relief. See Romero-Torres v. Ashcroft, 327 F.3d 887, 889-90 (9th Cir.2003). The determination of whether an alien has satisfied the continuous physical presence requirement is a factual inquiry guided by legal standards. The decision is non-discretionary, so we retain appellate jurisdiction over the issue. See Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997). III. DISCUSSION Where the BIA affirms an IJ’s order without opinion, we review the IJ’s decision as the final agency action. Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir.2004). We review the IJ’s determination of purely legal questions de novo. Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003). The only two circuits that have compared the effects of an administrative voluntary departure and a turnaround at the border on the continuity of an alien’s physical presence have concluded that the two means of departure are substantively and procedurally distinguishable and that only the former interrupts the continuity of an alien’s physical presence. See Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 907 (8th Cir.2005) (holding that an alien who had been present in the United States since 1984 and returned to Mexico for two weeks in 1990 to attend to his ailing grandfather did not break the continuity of his presence by simply being turned around at the border upon his attempted reentry); Morales-Morales v. Ashcroft, 384 F.3d 418, 427 (7th Cir.2004) (holding that an alien who had been present in the United States since 1986 and went to" }, { "docid": "22698196", "title": "", "text": "here before the brief absence. Some absences do interrupt an alien’s continuous physical presence, no matter how brief. In Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972 (9th Cir.2003), amending 315 F.3d 1201 (9th Cir.2003), we held that an alien who left the United States pursuant to a formal process known as administrative voluntary departure could not continue to accrue presence in the United States from an earlier date. In so holding, we explicitly deferred to In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002) (en banc), in which the BIA concluded that an administrative voluntary departure interrupted an alien’s continuous physical presence. But what if the alien departed the country on his own to attend to a family matter and was stopped and turned away at the border by immigration officials when he initially attempted to return to this country a month later, as in the case before us? Does such a rejection have the same effect as an administrative voluntary departure, terminating the accrual of physical presence in the United States for the purpose of eligibility for cancellation of removal? The IJ concluded that it does, reasoning that this case was also controlled by Ro-malez-Alcaide. The BIA affirmed without opinion. We disagree, however, and conclude that being turned away at the border by immigration officials does not have the same effect as an administrative voluntary departure and does not itself interrupt the accrual of an alien’s continuous physical presence. Because that was the reason Tapia was deemed ineligible for cancellation of removal, we grant his petition for review and remand for further proceedings. 1. BACKGROUND Tapia testified that he has been living in the United States since January of 1991 and has worked for the same employer since his arrival, beginning as a general field hand and progressing to a more senior full-time position at one of the company’s strawberry nurseries. He earns approximately $38,000 to $40,000 a year, and his employer provides housing for his family. In February 1997 Tapia married his wife, who at that time was also present here illegally. Ten months later they" }, { "docid": "22698195", "title": "", "text": "CLIFTON, Circuit Judge: Jose de Jesus Tapia petitions for review of a decision by the Board of Immigration Appeals (“BIA”) affirming without opinion the decision by an immigration judge (“IJ”) denying his petition for cancellation of removal. To be eligible for cancellation of removal, a form of relief which permits an alien otherwise subject to being expelled from the United States to remain in this country, the alien must prove, among other things, that he or she has been physically present in the United States for a continuous period of at least ten years. A short departure from the United States, such as a brief return to the alien’s native country for family reasons, does not necessarily interrupt the accrual of an alien’s period of physical presence in the United States, pursuant to an exception for brief absences provided in 8 U.S.C. § 1229b(d)(2). An alien who has briefly departed the United States for such a reason can still satisfy the ten-year presence prerequisite to qualify for cancellation of removal by including the time spent here before the brief absence. Some absences do interrupt an alien’s continuous physical presence, no matter how brief. In Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972 (9th Cir.2003), amending 315 F.3d 1201 (9th Cir.2003), we held that an alien who left the United States pursuant to a formal process known as administrative voluntary departure could not continue to accrue presence in the United States from an earlier date. In so holding, we explicitly deferred to In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002) (en banc), in which the BIA concluded that an administrative voluntary departure interrupted an alien’s continuous physical presence. But what if the alien departed the country on his own to attend to a family matter and was stopped and turned away at the border by immigration officials when he initially attempted to return to this country a month later, as in the case before us? Does such a rejection have the same effect as an administrative voluntary departure, terminating the accrual of physical presence in the United States for" }, { "docid": "11703936", "title": "", "text": "de Lopez and son Hugo, natives and citizens of Mexico, applied for cancellation of removal, asserting that they have continuously resided in the United States for over ten years and that their removal would cause unusual hardship for their three-year-old citizen daughter. Upon concluding that both Mr. and Mrs. Lopez failed to establish ten years of continuous presence, the IJ denied the application for cancellation of removal, but granted voluntary departure. In her oral opinion, the IJ observed that, although Mr. and Mrs. Lopez were not “untruthful,” their testimony was “vague and indefinite and the witnesses have not been able to pin down specific time frames to the Court’s satisfaction.” Nonetheless, the IJ did not make an adverse credibility finding. The IJ noted that Mrs. Lopez could provide only testimonial evidence of her presence from 1987 to 1993. Although Mr. Lopez offered more extensive documentation of his presence than his wife, the IJ took exception to the fact that he could provide only testimonial evidence of his presence in the United States for a portion of the ten-year period. Proceeding under the view that “[t]he instructions to the application for cancellation of removal ... require an applicant to document physical presence in the United States,” the IJ considered the witnesses’ testimony, without documentary evidence, insufficient to establish continuous presence and denied the applications. Under its streamlining procedures, 8 C.F.R. § 3.1(a)(7) (2002), the BIA affirmed the IJ’s decision without opinion. Jurisdiction Eligibility for cancellation of removal is based upon both discretionary and non-discretionary factors. 8 U.S.C. § 1229(b)(b). We do not have jurisdiction to review “decisions by the BIA that involve the exercise of discretion.” Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.2003). We retain jurisdiction, however, to review for substantial evidence the BIA’s non-discretionary factual determinations, including the determination of continuous presence. Cf. Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997) (holding that we have jurisdiction to review the BIA’s finding of lack of continuous presence for the purposes of suspension of deportation). We must determine, as a threshold matter, whether the BIA’s decision is properly subject" }, { "docid": "22202319", "title": "", "text": "aliens lucky enough to have a border official turn them around without placing them in the expedited removal process. We can respond to such anticipated criticism only by noting that a line must be drawn somewhere. It is within Congress’s discretion to draw the line between denials of reentry that are memorialized and executed pursuant to an expedited removal order and those that are not. And that is what we conclude Congress has done. Accordingly, we hold that an expedited removal order interrupts an alien’s continuous physical presence in this country for purposes of cancellation of removal relief. PETITION DENIED. . We \"may consider the predicate legal question whether the IJ properly applied the law to the facts in determining an individual’s eligibility to be considered for [cancellation of removal] relief.” Tapia v. Gonzales, 430 F.3d 997, 999 (9th Cir.2005). . The term \"cancellation of removal” has replaced the term \"suspension of deportation.” See Alcaraz v. INS, 384 F.3d 1150, 1152-53 (9th Cir.2004). . See Tapia, 430 F.3d at 1000-01 (reviewing history of continuous physical presence requirement). Other requirements also apply. See 8 U.S.C. § 1229b(b)(l). However, they are not relevant in this case. . 8 U.S.C. § 1229b(d)(1); Ibarra-Flores v. Gonzales, 439 F.3d 614, 617 & n. 1 (9th Cir.2006) (describing history of provision). . See Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 974 (9th Cir.2003) (per curiam). . Tapia, 430 F.3d at 1000-01; 8 U.S.C. § 1229b(d)(2) . Tapia, 430 F.3d at 998, 1003. . Id. . Id. at 1003-04 (holding that the existence of computer records listing \"information about the rejections” at the border and containing the alien’s fingerprints and photograph did not suffice to interrupt an alien’s continuous physical presence). . 8 U.S.C. § 1182(a)(9)(A) (providing a five-year bar to readmission for aliens removed after both expedited and formal proceedings). . See Vasquez-Lopez, 343 F.3d at 972; Tapia, 430 F.3d at 1002. . 8 U.S.C. § 1182(a)(9)(B). . See Tapia, 430 F.3d at 1002; see also Vasquez-Lopez, 343 F.3d at 972 (noting that the BIA properly held that, much like formal removals, voluntary departures ‘'sever[] the alien's" }, { "docid": "11703935", "title": "", "text": "McKEOWN, Circuit Judge. We reaffirm here the principle that “the time element of an alien’s residency ... may be shown by credible direct testimony or written declarations.” Vera-Villegas v. INS, 330 F.3d 1222, 1225 (9th Cir.2003). To qualify for the discretionary relief of cancellation of removal, an alien must, as a threshold matter, have been physically present in the United States for a continuous period of no less than ten years immediately preceding the date of the application. 8 U.S.C. § 1229b(b)(l). In denying the Lopezes’ application for cancellation of removal, the Immigration Judge (“IJ”) improperly required documentary evidence, despite substantial evidence supporting continuous presence and the lack of an adverse credibility finding. Because the IJ did not advance legitimate reasons for rejecting the testimony, the Board of Immigration Appeals (“BIA”) erred in affirming the IJ’s decision. We therefore grant the petition for review and remand for consideration of the discretionary determinations of extreme hardship and moral character. Background In 1997, Hugo Lopez-Alvarado, a native and citizen of Guatemala, along with his wife Maria Lizardo de Lopez and son Hugo, natives and citizens of Mexico, applied for cancellation of removal, asserting that they have continuously resided in the United States for over ten years and that their removal would cause unusual hardship for their three-year-old citizen daughter. Upon concluding that both Mr. and Mrs. Lopez failed to establish ten years of continuous presence, the IJ denied the application for cancellation of removal, but granted voluntary departure. In her oral opinion, the IJ observed that, although Mr. and Mrs. Lopez were not “untruthful,” their testimony was “vague and indefinite and the witnesses have not been able to pin down specific time frames to the Court’s satisfaction.” Nonetheless, the IJ did not make an adverse credibility finding. The IJ noted that Mrs. Lopez could provide only testimonial evidence of her presence from 1987 to 1993. Although Mr. Lopez offered more extensive documentation of his presence than his wife, the IJ took exception to the fact that he could provide only testimonial evidence of his presence in the United States for a portion" }, { "docid": "22387101", "title": "", "text": "of continuous physical presence is terminated whenever ... the alien has voluntarily departed under the threat of deportation.... ” 8 C.F.R. § 240.64(b)(3) (2003). In In re Romalez-Alcaide, 23 I & N Dec. 423, 429 (BIA 2002) (en banc), the BIA held, in accordance with this regulation, that an alien who voluntarily departs under threat of deportation breaks his or her continuous physical presence period for cancellation of removal. In Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 973 (9th Cir.2003) (per curiam), we upheld the BIA’s interpretation in Romalez, stressing that to declare otherwise would be inconsistent with the very purpose of removal. Serrano does not contest this general proposition but rather its applicability to him, arguing that his return to Mexico should not interrupt his continuous physical presence, Romalez notwithstanding. Serrano cites to an Eighth Circuit case, Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir.2005), in which our sister circuit stated, “before it may be found that a presence-breaking voluntary departure occurred, the record must contain some evidence that the alien was informed of and accepted its terms.” Id. at 908. Since the filing of petitioners’ initial brief, we have also adopted this principle. See Ibarra-Flores v. Gonzales, 439 F.3d 614, 619 (9th Cir.2006) (holding that an expressed and understood threat of deportation is requisite to presence-breaking voluntary departure). Serrano argues that he was not advised of his privileges and rights and did not knowingly agree to administrative voluntary departure in 1990, that he did not have the opportunity to be heard by an immigration judge, and that he therefore did not interrupt the accrual of continuous physical presence. Yet Serrano’s account of the circumstances of his departure persuasively suggests otherwise. Serrano testified to the IJ that he was caught in a work raid conducted by the then-INS, and, crucially, admitted twice that he had been given the opportunity to go before an immigration court and had explicitly rejected it and signed a voluntary departure document instead, suggesting that he preferred removal because it was “faster.” Serrano’s case is thus critically different from cases where we have found that substantial" }, { "docid": "22625246", "title": "", "text": "his wife receives cancellation of removal, their son may be eligible for this or some other form of relief. 3. On slip op. 8015 Change “unusual hardship” to “exceptional and extremely unusual hardship” 4. On slip op. 8023 Change “extreme hardship” to “exceptional and extremely unusual hardship” OPINION McKEOWN, Circuit Judge. We reaffirm here the principle that “the time element of an alien’s residency ... may be shown by credible direct testimony or written declarations.” Vera-Villegas v. INS, 330 F.3d 1222, 1225 (9th Cir.2003). To qualify for the discretionary relief of cancellation of removal, an alien must, as a threshold matter, have been physically present in the United States for a continuous period of no less than ten years immediately preceding the date of the application. 8 U.S.C. § 1229b(b)(1). In denying the Lopezes’ application for cancellation of removal, the Immigration Judge (“IJ”) improperly required documentary evidence, despite substantial evidence supporting continuous presence and the lack of an adverse credibility finding. Because the IJ did not advance legitimate reasons for rejecting the testimony, the Board of Immigration Appeals (“BIA”) erred in affirming the IJ’s decision. We therefore grant the petition for review and remand for consideration of the discretionary determinations of exceptional and extremely unusual hardship and moral character. Background In 1997, Hugo Lopez-Alvarado, a native and citizen of Guatemala, along with his wife Maria Lizardo de Lopez and son Hugo, natives and citizens of Mexico, applied for cancellation of removal, asserting that they have continuously resided in the United States for over ten years and that their removal would cause exceptional and extremely unusual hardship for their three-year-old citizen daughter. Upon concluding that both Mr. and Mrs. Lopez failed to establish ten years of continuous presence, the IJ denied the application for cancellation of removal, but granted voluntary departure. In her oral opinion, the IJ observed that, although Mr. and Mrs. Lopez were not “untruthful,” their testimony was “vague and indefinite and the witnesses have not been able to pin down specific time frames to the Court’s satisfaction.” Nonetheless, the IJ did not make an adverse credibility finding. The" }, { "docid": "22202320", "title": "", "text": "presence requirement). Other requirements also apply. See 8 U.S.C. § 1229b(b)(l). However, they are not relevant in this case. . 8 U.S.C. § 1229b(d)(1); Ibarra-Flores v. Gonzales, 439 F.3d 614, 617 & n. 1 (9th Cir.2006) (describing history of provision). . See Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 974 (9th Cir.2003) (per curiam). . Tapia, 430 F.3d at 1000-01; 8 U.S.C. § 1229b(d)(2) . Tapia, 430 F.3d at 998, 1003. . Id. . Id. at 1003-04 (holding that the existence of computer records listing \"information about the rejections” at the border and containing the alien’s fingerprints and photograph did not suffice to interrupt an alien’s continuous physical presence). . 8 U.S.C. § 1182(a)(9)(A) (providing a five-year bar to readmission for aliens removed after both expedited and formal proceedings). . See Vasquez-Lopez, 343 F.3d at 972; Tapia, 430 F.3d at 1002. . 8 U.S.C. § 1182(a)(9)(B). . See Tapia, 430 F.3d at 1002; see also Vasquez-Lopez, 343 F.3d at 972 (noting that the BIA properly held that, much like formal removals, voluntary departures ‘'sever[] the alien's physical tie to the United States”). . Tapia, 430 F.3d at 1002. . 8 U.S.C. § 1182(a)(9)(A). . Aliens are afforded very little process in expedited removals, in contrast to formal removal proceedings. Compare 8 U.S.C. § 1229a (setting forth procedures for formal removal proceedings before an immigration judge) with id. § 1225(b)(1) (setting forth procedures for expedited removal proceedings before an immigration officer). In addition, the right to appeal expedited removals is extremely limited. See 8 U.S.C. § 1225(b)(1)(C) (providing that an expedited removal order \"is not subject to administrative appeal” except when an alien claims a fear of persecution or claims that he or she has been granted status as a permanent resident, asylee, or refugee). . In an expedited removal, an immigration official must make a determination of inadmissibility, create a record, ask the alien if he or she fears persecution, and sign an order of removal. See 8 U.S.C. § 1225(b)(l)(A)(i); 8 C.F.R. § 235.3(b)(2). In both an expedited removal and a simple turnaround, however, it is an immigration official —" } ]

[ { "docid": "23588032", "title": "", "text": "symptom increase.” For example, though Johansen complained to Dr. Olson in November 1998 of increased neck pain, he reported back. in January 1999 that the pain had been relieved by his new medication. Further, as the Commissioner points out in her brief, some of Johansen’s complaints of symptom exacerbation during 1998 and 1999 were temporary and due to outside factors, such as the “heavy lifting” Johansen did in connection with his move to a new apartment. Johansen also argues that the ALJ should have accorded controlling weight to Dr. Olson’s opinion that Johansen could lift and carry no more than ten pounds. But a treating physician’s opinion is entitled to controlling weight only if it is not inconsistent with other substantial evidence in the record. Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir.2000). And in this case, Dr. Olson’s conclusion that Johansen did not have the ability to perform light work is contradicted by the earlier opinions of treating physicians Timmerman and Salvi, as well as that of consultative physician Bussan. Further, Dr. Olson’s general opinion that Johansen was “unable to work gainful employment because of his chronic neck [pain], left arm pain and low back pain” is not conclusive on the ultimate issue of disability, which is reserved to the Commissioner. Id. Johansen spends much of his brief arguing that the ALJ erred in concluding that his activities of daily living were consistent with the ability to perform light work. Johansen is right that involvement in “minimal” daily activities does not necessarily contradict a claim of disability. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir.2001). Here, however, we doubt whether Johansen’s daily activities ie.g., performing his home exercise and traction program, grocery shopping, doing laundry, driving a car, and walking one mile daily) qualify as truly “minimal.” See Scott v. Sullivan, 898 F.2d 519, 524 n. 6 (7th Cir.1990) (claimant’s testimony that he could help out around the house, carry groceries, set the table, ride a bike, and go hunting and fishing supported ALJ’s conclusion that claimant was not limited to sedentary work). In any event this" } ]

[ { "docid": "15367043", "title": "", "text": "Chater, 78 F.3d 305, 309 (7th Cir.1996). The ALJ also has a basic obligation to develop a full and fair record, Nelson, 131 F.3d at 1235, and must build an accurate and logical bridge between the evidence and the result to afford the claimant meaningful judicial review of the administrative findings, Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir.2003); Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir.2001). If the evidence does not support the conclusion, we cannot uphold the decision. Blakes, 331 F.3d at 569. The logical bridge was not sound here. The ALJ relied on three principal grounds to find that Ms. Beardsley could do light work: (1) her description of her own capabilities and daily activities, (2) the opinion of Dr. Brill, and (3) Ms. Beardsley’s conservative course of treatment, including her decision not to seek surgery. As we explain below, none of these factors, considered individually or collectively, provides adequate support for the ALJ’s conclusion that Ms. Beardsley could perform work more demanding than sedentary work. I. Ms. Beardsley’s Self-Reported Capabilities Ms. Beardsley testified at her hearing that she experienced moderate to extreme pain throughout her leg and into her back. She had difficulty walking or standing for more than about ten minutes at a time, and although she could drive without using her injured left knee, she had trouble getting in and out of the car and did not like going out. She estimated that she shopped for necessities about once a week, leaning on the grocery cart for support, and that her pain would usually be worse the next day. Much of Ms. Beardsley’s weekdays were spent keeping her mother company, which involved watching television, playing cards, doing light housework, preparing simple meals, and helping her mother into bed in the evening. The ALJ acknowledged that these daily activities were “fairly limited,” but he was not persuaded that they weighed in favor of a disability finding because “allegedly limited daily activities cannot be objectively verified with any reasonable degree of certainty.” Whatever uncertainty may exist around such self-reports is not by itself reason" }, { "docid": "22287592", "title": "", "text": "was testifying truthfully and against her interest about her daily activities, why did the administrative law judge think she was lying about her pain? But there is a deeper problem with the administrative law judge’s discernment of contradiction. He failed to consider the difference between a person’s being able to engage in sporadic physical activities and her being able to work eight hours a day five consecutive days of the week. Clifford v. Apfel, supra, 227 F.3d at 872; Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001); Easter v. Bowen, supra, 867 F.2d at 1130. Carradine does not claim to be in wracking pain every minute of the day. When she feels better for a little while, she can drive, shop, do housework. It does not follow that she can maintain concentration and effort over the full course of the work week. The evidence is that she cannot. The weight the administrative law judge gave to Carradine’s ability to walk two miles was perverse: not only is it a form of therapy, but it is not a form of therapy available at work. A clinical psychologist opined that Carradine’s attention and concentration are impaired by her focus on pain. As in this case, the applicant for disability benefits in Vertigan v. Halter, supra, 260 F.3d at 1049-50, was “able to go grocery shopping with assistance, walk approximately an hour in the malls, get together with her friends, play cards, swim, watch television, and read. She also took physical therapy for six months and exercised at home. The ALJ relied on this evidence to conclude that Ms. Vertigan’s daily activities involved physical functions that were inconsistent with her claims of pain. Yet, these physical activities did not consume a substantial part of Ms. Verti-gan’s day.... In addition, activities such as walking in the mall and swimming are not necessarily transferable to the work setting with regard to the impact of pain. A patient may do these activities despite pain for therapeutic reasons, but that does not mean she could concentrate on work despite the pain or could engage in similar" }, { "docid": "4237836", "title": "", "text": "Zurawski v. Apfel, 245 F.3d 881, 887 (7th Cir.2001) (finding that the plaintiffs activities “[were] fairly restricted (e.g., washing dishes, helping his children prepare for school, doing laundry, and preparing dinner) and not of a sort that necessarily undermines or contradicts a claim of disabling pain”). Based on the record, Plaintiff has a limited number of daily activities that she is capable of performing. Plaintiffs ability to perform these activities is not indicative of the fact that her pain is not disabling and consequently, inconsistent with Dr. Dachman’s opinion. The fact that Plaintiff can perform some occasional daily activities does not, in itself, mean that she is capable of working or engaging in substantial gainful activity. See e.g., 20 C.F.R. § 404.1572(c). Rather, Dr. Dachman spe cifically opined that Plaintiff cannot sit or stand for more than thirty minute intervals, and when considering his opinion, in conjunction with the VE’s testimony, Plaintiff is unequivocally disabled. The Court concludes that there is no evidence in the record to indicate that Plaintiff is not credible. For example, the medical record reflects that Plaintiff consistently sought medical treatment for her impairments and pain over an extended period of time. Based on the record, Plaintiff diligently pursued physical therapy and adhered to her treating physician’s recommendations. Moreover, Plaintiff, in spite of her impairments, wanted to return to work part-time , something Dr. Dach-man suggested was possible at one time. (R. 669.) The Court, therefore, finds that there is no evidence in the 864 page record of either malingering or exaggeration on the part of Plaintiff. Contrary to what the ALJ recognized, Plaintiff worked very hard to get better, but, unfortunately, she could not, and consequently, she is disabled. The Court also notes that there is no evidence in the record to indicate that Dr. Dachman’s medical opinion lacks credibility. See e.g., Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir.2001) (“The patient’s regular physician may want to do a favor for a friend and client, and so the treating physician may too quickly find disability.”) (citation omitted.) In Dixon, the ALJ determined that “[the" }, { "docid": "22064624", "title": "", "text": "Zurawski’s pain as “chronic” and “severe” resulting in his inability to function. He stated that Zurawski had disc herniations and prescribed various medications for pain and depression. In November 1996, Dr. Ghaly advised Zurawski to return to work and to continue treatment with a psychiatrist. He also prescribed medications for Zurawski’s pain and depression symptoms. At the administrative hearing held before the ALJ, Zurawski, then 39-years-old, was the only witness to testify. He testified that Dr. Lotesto was treating him for pain, not depression, and that he considered Dr. Lotesto to be his treating physician. He reported that his daily activities included helping his four children prepare for school and driving two younger children to and from school, less than a mile each way. He stated that he washes dishes, does some laundry, prepares dinner, and helps his children with their homework. He indicated that he had difficulty finding work because of his back condition. He explained that he cannot sit, walk, stand, lift, carry, or bend on a prolonged basis due to pain. He testified that, at most, he can work from two to three hours a day while using Tegretol, which helps to alleviate his pain symptoms. However, he reported experiencing memory loss and concentration deficits from using Tegretol. And, while he once used his garage as a shop to maintain trucks and stain cabinets, Zurawski denied working in the shop since his injury on December 3, 1993. In deciding whether Zurawski had met his burden of establishing disability, the ALJ applied the standard five-step inquiry, see 20 C.F.R. § 404.1520, which required her to evaluate, in sequence: (1) whether the claimant is currently [un]employed; (2) whether the claimant has a severe impairment; (3) whether the claimant’s impairment meets or equals one of the impairments listed by the [Commissioner], see 20 C.F.R. § 404, Subpt. P, App. 1; (4) whether the claimant can perform [his] past relevant work; and (5) whether the claimant is capable of performing work in the national economy. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir.2000) (quoting Knight v. Chater, 55 F.3d 309," }, { "docid": "22327803", "title": "", "text": "is taking pain medication. While the ALJ is not required to address every piece of evidence, he must articulate some legitimate reason for his decision. See id. at 333. Most importantly, he must build an accurate and logical bridge from the evidence to his conclusion. Green v. Apfel, 204 F.3d 780, 781 (7th Cir.2000); Groves v. Apfel, 148 F.3d 809, 811 (7th Cir.1998). In this case, the ALJ does not explain why the objective medical evidence does not support Clifford’s complaints of disabling pain. Rather, the ALJ merely lists Clifford’s daily activities as substantial evidence that she does not suffer disabling pain. This is insufficient because minimal daily activities, such as those in issue, do not establish that a person is capable of engaging in substantial physical activity. See Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir.1993) (ruling that the ALJ may not rely on minimal daily activities as substantial evidence that claimant does not suffer disabling pain). For example, Clifford testified that her typical household chores took her only about two hours to complete. Clifford indicated that she had to rest while doing household chores. She stated that she cooks, but only simple meals. She also indicated that she could vacuum, but it hurts her back. She stated that she goes grocery shopping about three times a month and “sometimes” carries groceries from the car to the apartment. She further stated that she could lift a twenty pound sack of potatoes,’ but she “wouldn’t carry it long.” Clifford testified that her , husband helps her with the household chores whenever possible. While she babysits her grandchildren, she indicated that her depression is aggravated while watching them. In regard to walking, Clifford stated that she walked to get exercise at her doctor’s suggestion. However, she stated that she must rest after walking anywhere between three and five blocks. Clifford further indicated that she plays cards (two rounds) about twice a month. Thus, her testimony on her daily activities does not undermine or contradict her claim . of disabling pain. At this juncture, we lack a sufficient basis upon which" }, { "docid": "9811444", "title": "", "text": "674, 676 (8th Cir.1997) (plaintiff dressed and bathed herself, did some housework, cooking and shopping); Pena v. Chater, 76 F.3d 906, 908 (8th Cir.1996) (daily caring for one child, driving when unable to find ride and sometimes going to grocery); Nguyen v. Chater, 75 F.3d 429 (8th Cir.1996) (visiting neighbors, cooking own meals, doing own laundry and attending church); Novotny v. Chater, 72 F.3d 669, 671 (8th Cir.1995) (carrying in grocery bags, carrying out garbage, driving wife to and from work inconsistent with extreme, disabling pain); Shannon v. Chater, 54 F.3d 484, 487 (8th Cir.1995) (plaintiff cooked breakfast, “sometimes” needed help with household cleaning and .other chores, visited friends and relatives and attended church twice a month); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993) (plaintiff lived alone, drove, shopped for groceries and did housework with some help from neighbor). The evidence suggests that Gray was able to care for himself, do household chores, drive a car for short distances, and perform other miscellaneous activities. The ALJ concluded that Gray’s unemployment was due to his own choice rather than the result of disabling impairments. While Gray testified that he could only perform these daily activities with significant pain and breaks, the ALJ discredited Gray’s limitations as not supported by the record as a whole. III. Conclusion In light of the medical and other evidence of record, the ALJ’s credibility determinations are supported by substantial evidence and the ALJ properly concluded that Gray does not suffer from a non-exertional limitation that precludes reliance on the grids to determine Gray’s capacity to work. The judgment is, therefore, affirmed. . The Honorable Richard H. Battey, United States District Judge for the District of South Dakota. . The claimant underwent a left L3 - L4 mi-crodiskectomy for intervertebrae disk displacement and L4 radiculopathy. . Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing," }, { "docid": "174238", "title": "", "text": "of disabling pain.” Id. Mr. Scrogham’s activities were significantly more limited than the claimant’s in Clifford. Where she could regularly perform household tasks, go shopping and lift up to twenty pounds, Mr. Scrog-ham testified that he could do none of those things. Apart from his walking, the activities cited by the ALJ, such as driving, mowing the lawn or working in the yard, appear to have occurred only rarely. And the “sporadic performance [of household tasks or work] does not establish that a person is capable of engaging in substantial gainful activity.” Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir.1993) (alteration in original) (internal quotation marks omitted). Further, at least one of the activities was a precipitating event that led to one of Mr. Scrogham’s doctor’s visits. Surely, this type of ill-advised activity cannot support a conclusion that Mr. Scrogham was capable of performing full-time work. Cf. Matchen v. Apfel, No. 99-3746, 215 F.3d 1330, 2000 WL 562196, at *4 (7th Cir. May 5, 2000) (faulting the ALJ for considering the claimant’s driving as evidence of his abilities where the claimant had gotten into several car accidents be cause his conditions prevented him from driving well). Reports of Mr. Scrogham’s walking simply are too thin a reed on which to rest a determination that there is substantial evidence supporting the ALJ’s conclusion that he could return to full-time work. In Carradine v. Barnhart, 360 F.3d 751 (7th Cir.2004), we held that the claimant’s daily activities, which included walking two miles, could not support the ALJ’s conclusion that she could work. Id. at 756 (“The weight the administrative law judge gave to Carradine’s ability to walk two miles was perverse: not only is it a form of therapy, but it is not a form of therapy available at work.”). We also cited with approval a decision of our colleagues in the Ninth Circuit, which determined that rehabilitative efforts such as walking for an hour and swimming were “not necessarily transferable to the work setting with regard to the impact of pain.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001)." }, { "docid": "22425699", "title": "", "text": "177 F.3d 689, 692 (8th Cir.1999) (stating that the ALJ noted the claimant’s daily activities were inconsistent with his complaints of disabling pain, as the claimant’s daily activities included: “driving his children to work, driving his wife to school, shopping, visiting his mother, taking a break with his wife between her classes, watching television, and playing cards”). Here, the ALJ found that Wagner’s testimony was credible to the extent that he had been diagnosed with and treated for multiple medical conditions that had progressive residual effects over the long term. The ALJ also found it reasonable that Wagner’s level of deconditioning and obesity impacted his level of functioning. The ALJ, however, did not find Wagner’s testimony fully credible because “the claimant continues to participate in activities of daily living with minimal limitation” and because of “inconsistencies cited within the record by the State agency physicians.” The information that Wagner provided in the “Daily Activities Questionnaire” supports the ALJ’s conclusions. First, Wagner stated that he “regularly” performs the activities of self-care, such as bathing/showering, dressing, shaving, and hair care. Second, he stated that he “regularly” does the laundry, dishes, changes sheets, takes out the trash, and does home repairs. He acknowledged at the hearing before the ALJ that “[d]ay to day chores are not a real problem” for him. Third, he noted in the questionnaire that he (1) “almost daily” prepares meals at the home; (2) does the grocery shopping and other household shopping without assistance; (3) goes to the bank and to medical appointments without assistance; (4) drives two to three times per week; (5) enjoys working on the computer, watching TV, and reading a variety of magazines and newspapers; (6) visits friends at their residences or at public meeting areas a couple of times per week; and (7) gets involved socially on a weekly basis. Therefore, as in Roberson, Pirtle, Tellez, Young, and Riggins, Wagner engaged in extensive daily activities, such as fixing meals, doing housework, shopping for groceries, and visiting friends. Additionally, state agency physician Dr. Cromer identified inconsistencies in Wagner’s subjective complaints of pain. Spe- cifieally, he" }, { "docid": "10816853", "title": "", "text": "they are inconsistent with the above residual functional capacity assessment.” (Tr. 22). In considering Plaintiffs testimony, the ALJ stated: “In her activities of daily living, the [Plaintiff] noted that she needs to rest between household chores because of fatigue and pain.... Notwithstanding the above, [Plaintiff] stated that she is able to care for her personal needs, do the household chores, such as cleaning, laundry and dishes and babysit her nephew. The [Plaintiff] also stated that she can drive herself to the store for groceries and she enjoys playing with her nieces and nephews and watching television.” (Tr. 21-22). Plaintiff contends the ALJ failed to consider Plaintiffs testimony that she sometimes has difficulty getting dressed, taking a shower, and taking care of her hair; that she is unable to move the next day. after shopping for food; that she suffers pain while cleaning; that she usually cooks her food in the microwave or has food delivered; and that her nephew normally sleeps for three of the five hours he is with her while Plaintiff deals with her pain. (Dkt. 10 at 22-23). The evidence in the record shows that Plaintiff was able to engage in more activities of daily living than Plaintiff now claims. In her submission to the Social Security Administration, Plaintiff stated that she had “no problem with personal care”; that she would watch television or sleep while her nephew napped and that she would play with him for one to two hours; that she could visit with friends and family; that she could go shopping for gifts; that she was capable of making food that needed to be prepared; and that she could do cleaning, laundry, and dishes as long as she took breaks. (Tr. 127-34). Indeed, “[i]t is well-settled that the performance of basic daily activities does not necessarily contradict allegations of disability, ‘as people should not be penalized for enduring the pain of their disability in order to care for themselves.’” Stoesser v. Comm’r of Soc. Sec., No. 08-CV-643, 2011 WL 381949, at *7 (N.D.N.Y. Jan. 19, 2011) (quoting Woodford v. Apfel, 93 F.Supp.2d 521, 529" }, { "docid": "9811443", "title": "", "text": "Dr. Teuber’s records revealed that Gray had previously made two clear statements that he had complete resolution of his pain after the operation and that he had significant improvement in his weakness. The ALJ also noted that Gray did not take prescription or over-the-counter medications for his alleged disabling pain and failed to follow through with suggested rehabilitation treatment. “The ALJ may properly consider both the claimant’s willingness to submit to treatment and the type of medication prescribed in order to determine the sincerity of the claimant’s allegations of pain.” Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir.1991) (citations omitted). Dr. Teuber also noted Gray’s lack of interest in doing any sort of activity, and that Gray had just been sitting at home and drinking beer to relax. See T. at 134. Dr. Teuber also expressed concern about Gray’s lack of interest in returning to work. See id. Finally, the ALJ observed that Gray engaged in extensive daily activities, which is inconsistent with the level of pain alleged. See Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir.1997) (plaintiff dressed and bathed herself, did some housework, cooking and shopping); Pena v. Chater, 76 F.3d 906, 908 (8th Cir.1996) (daily caring for one child, driving when unable to find ride and sometimes going to grocery); Nguyen v. Chater, 75 F.3d 429 (8th Cir.1996) (visiting neighbors, cooking own meals, doing own laundry and attending church); Novotny v. Chater, 72 F.3d 669, 671 (8th Cir.1995) (carrying in grocery bags, carrying out garbage, driving wife to and from work inconsistent with extreme, disabling pain); Shannon v. Chater, 54 F.3d 484, 487 (8th Cir.1995) (plaintiff cooked breakfast, “sometimes” needed help with household cleaning and .other chores, visited friends and relatives and attended church twice a month); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993) (plaintiff lived alone, drove, shopped for groceries and did housework with some help from neighbor). The evidence suggests that Gray was able to care for himself, do household chores, drive a car for short distances, and perform other miscellaneous activities. The ALJ concluded that Gray’s unemployment was due to" }, { "docid": "174237", "title": "", "text": "household chores took her only about two hours to complete. Clifford indicated that she had to rest while doing household chores. She stated that she cooks, but only simple meals. She also indicated that she could vacuum, but it hurts her back. She stated that she goes grocery shopping about three times a month and “sometimes” carries groceries from the car to the apartment. She further stated that she could lift a twenty pound sack of potatoes, but she “wouldn’t carry it long.” Clifford testified that her husband helps her with the household chores whenever possible. While she babysits her grandchildren, she indicated that her depression is aggravated while watching them. In regard to walking, Clifford stated that she walked to get exercise at her doctor’s suggestion. However, she stated that she must rest after walking anywhere between three and five blocks. Clifford further indicated that she plays cards (two rounds) about twice a month. Id. We held in Clifford that the claimant’s “testimony on her daily activities d[id] not undermine or contradict her claim of disabling pain.” Id. Mr. Scrogham’s activities were significantly more limited than the claimant’s in Clifford. Where she could regularly perform household tasks, go shopping and lift up to twenty pounds, Mr. Scrog-ham testified that he could do none of those things. Apart from his walking, the activities cited by the ALJ, such as driving, mowing the lawn or working in the yard, appear to have occurred only rarely. And the “sporadic performance [of household tasks or work] does not establish that a person is capable of engaging in substantial gainful activity.” Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir.1993) (alteration in original) (internal quotation marks omitted). Further, at least one of the activities was a precipitating event that led to one of Mr. Scrogham’s doctor’s visits. Surely, this type of ill-advised activity cannot support a conclusion that Mr. Scrogham was capable of performing full-time work. Cf. Matchen v. Apfel, No. 99-3746, 215 F.3d 1330, 2000 WL 562196, at *4 (7th Cir. May 5, 2000) (faulting the ALJ for considering the claimant’s driving as" }, { "docid": "22064630", "title": "", "text": "individual’s allegations have been considered” or that “the allegations are (or are not) credible.” Id. It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. While the ALJ did list Zurawski’s daily activities, those activities are fairly restricted (e.g., washing dishes, helping his children prepare for school, doing laundry, and preparing dinner) and not of a sort that necessarily undermines or contradicts a claim of disabling pain. See Clifford, 227 F.3d at 872 (noting “minimal daily activities ... do not establish that a person is capable of engaging in substantial physical activity”). The ALJ should have explained the “inconsistencies” between Zurawski’s activities of daily living (that were punctured with rest), his complaints of pain, and the medical evidence. Id. at 870-72. With respect to there being “inconsistencies” with the medical evidence, we have instructed that: If the allegation of pain is not supported by the objective medical evidence in the file and the claimant indicates that pain is a significant factor of his or her alleged inability to work, then the ALJ must obtain detailed descriptions of claimant’s daily activities by directing specific inquiries about the pain and its effects to the claimant. She must investigate all avenues presented that relate to pain, including claimant’s prior work record information and observations by treating physicians, examining physicians, and third parties. Factors that must be considered include the nature and intensity of claimant’s pain, precipitation and aggravating factors, dosage and effectiveness of any pain medications, other treatment for the relief of pain, functional restrictions, and the claimant’s daily activities. Luna v. Shalala, 22 F.3d 687, 691 (7th Cir.1994) (citation omitted). But, where the medical signs and findings reasonably support a claimant’s complaint of pain, the ALJ cannot merely ignore the claimant’s allegations. Id. To support her decision denying benefits, the ALJ relies on evidence that seemingly contradicts Zurawski’s complaints of disabling pain. For instance, she mentions the findings of four physicians (namely, Dr. Semba, Dr. Spencer, Dr. Deskin, and Dr. Ghaly), all of whom concluded that Zurawski was capable of" }, { "docid": "22064629", "title": "", "text": "“build an accurate and logical bridge from the evidence to [her] conclusion.” Clifford, 227 F.3d at 872. A. Zurawski’s Credibility Zurawski contends that the ALJ’s credibility determinations were erroneous. The ALJ’s credibility determinations generally will not be overturned unless they were “patently wrong.” Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.2000). Here, the ALJ found Zurawski’s complaints of disabling pain “not entirely credible due to the inconsistencies with the objective medical evidence, and inconsistencies with daily activities.” Unfortunately, we are left to ponder what exactly are these “inconsistencies” because the ALJ provided no further explanation. Under Social Security Ruling 96-7p, the ALJ’s determination or decision regarding claimant credibility “must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and the reasons for that weight.” In this regard it is not sufficient for the adjudicator to make a single, conclusory statement that “the individual’s allegations have been considered” or that “the allegations are (or are not) credible.” Id. It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. While the ALJ did list Zurawski’s daily activities, those activities are fairly restricted (e.g., washing dishes, helping his children prepare for school, doing laundry, and preparing dinner) and not of a sort that necessarily undermines or contradicts a claim of disabling pain. See Clifford, 227 F.3d at 872 (noting “minimal daily activities ... do not establish that a person is capable of engaging in substantial physical activity”). The ALJ should have explained the “inconsistencies” between Zurawski’s activities of daily living (that were punctured with rest), his complaints of pain, and the medical evidence. Id. at 870-72. With respect to there being “inconsistencies” with the medical evidence, we have instructed that: If the allegation of pain is not supported by the objective medical evidence in the file and the claimant indicates that pain is a significant factor of his" }, { "docid": "285270", "title": "", "text": "testimony about the medical evidence in finding her not credible. She considered all of the evidence of record, applied the factors listed in the regulation and provided well-founded reasons for her decision. The administrative law judge noted that she accounted for some of plaintiffs allegations of pain and functional limitation in her residual functional capacity assessment. However, she found that plaintiffs statement that she was incapable of performing work at any exertional level was not credible because of significant inconsistencies in the record as a whole. In support, the administrative law judge considered plaintiffs course of medical treatment. She noted that plaintiff infrequently saw a doctor for her allegedly disabling symptoms and that no actual physical examination was conducted during the relevant time period of September 12, 1997 through December 31, 1998. In addition to the medical evidence, the administrative law judge considered the other relevant factors listed in the regulation. She reviewed plaintiffs medication use and found that she did not have any significant side effects. The administrative law judge considered plaintiffs work history, noting that although she had a stable work history prior to 1994, she had minimal earnings from 1983 to 1985 and had not sought any vocational rehabilitation services to assist her in finding alternative employment. With respect to daily activities, the administrative law judge noted that plaintiff had testified that in 1997 and 1998, she got her children ready for school, made breakfast for her family, picked up around the house, did laundry, washed dishes, prepared supper and went shopping. She found these activities inconsistent with plaintiffs complaints of disabling symptoms and limitations. Plaintiff argues that her daily activities were minimal and that her husband and children helped her. See Zurawski, 245 F.3d at 887 (ability to perform a daily routine and sporadic diversions does not refute a claim of disability); Clifford, 227 F.3d at 872 (same). However, plaintiff had testified that she was in so much pain that she could not take anyone touching her and was unable to stand, walk or sit for an extended period of time. She also explained that her" }, { "docid": "14838883", "title": "", "text": "addressed Claimant’s daily activities. An individual’s participation in minimal daily activities does not necessarily undermine testimony of disabling pain. Zurawski, 245 F.3d at 887. In addition, an ALJ should explain inconsistencies between daily living activities, the medical evidence, and the individual’s complaints of pain. Id. (finding the ALJ’s listing of daily activities was not sufficient to undermine claims of disabling pain, without explaining the inconsistencies). In this case, the ALJ’s opinion states that Claimant performs a “variety of daily activities” and specifically mentions Claimant’s cooking, household chores, and family assisted grocery shopping. R. 19. As in Zurawski, the ALJ listed the daily activities but did not explain how they undermined Claimant’s complaints. However, this Court again finds that the ALJ’s decision did not impact the ultimate decision. With the exception of one pain disabling limitation, the ALJ addressed all of Claimant’s complaints when posing the hypothetical to the VE. R. 824. Claimant’s counsel then accounted for this exception by adding a limitation of an ability to sit for one hour, stand for half-an-hour, and walk one block. R. 325. After accounting for the additional limitation, the VE testified that there were 110,000 jobs available at the sedentary level. R. 325-26. Accordingly, the YE’s testimony and the medical evidence support a finding that Claimant’s alleged pain did not render her unable to engage in gainful employment. As a result, the ALJ’s credibility determination on this issue does not justify a reversal. As for the ALJ’s third, fourth, and fifth reasons for finding Claimant’s complaints not wholly credible, this Court finds there is substantial evidence to support the ALJ’s determinations because they relied upon objective medical evidence. The ALJ cited the State Disability Determination Services decision of “not disabled,” the fact that there are no recommendations from any treating doctor to permanently restrict any type of activity, and Dr. Brubaker’s examination noting that the medical records provided no evidence of an ineligibility for work. R. 19. After a thorough review of the record, this Court finds adequate support for the ALJ’s findings on all of the aforementioned reasons. Accordingly, this Court finds" }, { "docid": "6231690", "title": "", "text": "times received childcare assistance from her mother and a friend. Brown also testified that she made meals for her family, but many meals were easily assembled— for example, microwavable frozen dinners and Hamburger Helper. Brown walked to a nearby park with her daughter on a near-daily basis, but the park was a mere two blocks away and had benches (or something else she could sit on). And although Brown may have performed “light” housework, she received significant help from her nephews — for example, transporting the laundry basket to and from the laundry area and removing clean dishes from the dishwasher and putting them away. See Craft, 539 F.3d at 680 (holding that ALJ improperly considered claimant’s daily living activities where claimant’s “so-called ‘daily walk’ was merely to the mailbox at the end of the driveway, his vacuuming took only four minutes, and his grocery shopping was done on a motorized cart at the store and he was able to carry only one grocery bag in each hand into the house”); Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) (claimant’s daily living activities “are fairly restricted (e.g., washing dishes, helping his children prepare for school, doing laundry, and preparing dinner) and not of a sort that necessarily undermines or contradicts a claim of disabling pain”). So the ALJ must conduct a reevaluation of Dr. Shannon’s opinions to determine whether they are entitled to controlling weight. C. No Reversible Error in Relying on Vocational Expert’s Testimony The ALJ determined that Brown could perform substantial gainful activity based primarily on testimony from a vocational expert regarding six particular jobs. Brown attacks the ALJ’s reliance on this testimony on several grounds. For example, Brown claims that the ALJ erred in accepting the vocational expert’s testimony that all six jobs could be performed sitting or standing and that the worker could be off task up to 10% of the time while doing so. However, Brown concedes that this testimony merely supplemented (and did not conflict with) the Dictionary of Occupational Titles (DOT), which means that she forfeited these arguments by failing to" }, { "docid": "22327804", "title": "", "text": "complete. Clifford indicated that she had to rest while doing household chores. She stated that she cooks, but only simple meals. She also indicated that she could vacuum, but it hurts her back. She stated that she goes grocery shopping about three times a month and “sometimes” carries groceries from the car to the apartment. She further stated that she could lift a twenty pound sack of potatoes,’ but she “wouldn’t carry it long.” Clifford testified that her , husband helps her with the household chores whenever possible. While she babysits her grandchildren, she indicated that her depression is aggravated while watching them. In regard to walking, Clifford stated that she walked to get exercise at her doctor’s suggestion. However, she stated that she must rest after walking anywhere between three and five blocks. Clifford further indicated that she plays cards (two rounds) about twice a month. Thus, her testimony on her daily activities does not undermine or contradict her claim . of disabling pain. At this juncture, we lack a sufficient basis upon which to uphold the ALJ’s credibility determination. On remand, the ALJ must conduct a reevaluation of Clifford’s complaints of pain, with due regard for Dr. Combs’s opinion and the full range of medical evidence. C. Residual Functional Capacity Clifford furthfer contends that the ALJ’s finding that she had the residual functional capacity to perform light work is unsup ported by the record evidence. Before we address this argument, however, we revisit step three of the sequential analysis because we believe further proceedings are necessary for a redetermination of a multiple impairments analysis. From the record, it appears that the ALJ failed to consider at step three the disabling effect of Clifford’s weight problem on her overall condition. The regulations require the agency to consider the combined effect of all of the claimant’s ailments, regardless of whether “any such impairment, if considered separately, would be of sufficient severity.” 20 C.F.R. § 404.1523; see Green, 204 F.3d at 782. While Clifford did not claim obesity as an impairment when filing her Disability Report, the evidence should have alerted" }, { "docid": "285271", "title": "", "text": "noting that although she had a stable work history prior to 1994, she had minimal earnings from 1983 to 1985 and had not sought any vocational rehabilitation services to assist her in finding alternative employment. With respect to daily activities, the administrative law judge noted that plaintiff had testified that in 1997 and 1998, she got her children ready for school, made breakfast for her family, picked up around the house, did laundry, washed dishes, prepared supper and went shopping. She found these activities inconsistent with plaintiffs complaints of disabling symptoms and limitations. Plaintiff argues that her daily activities were minimal and that her husband and children helped her. See Zurawski, 245 F.3d at 887 (ability to perform a daily routine and sporadic diversions does not refute a claim of disability); Clifford, 227 F.3d at 872 (same). However, plaintiff had testified that she was in so much pain that she could not take anyone touching her and was unable to stand, walk or sit for an extended period of time. She also explained that her muscles, joints and skin hurt and had a dull headache all the time. The administrative law judge reasonably could conclude that the severity of pain alleged by plaintiff was inconsistent with the household chores that she was able to perform. Even Dr. Butwinick’s limitations for plaintiff were not as severe as one might expect given plaintiffs subjective complaints. Dr. Butwinick found that she could occasionally lift twenty pounds and frequently lift ten pounds and could sit four hours, stand two hours and walk three hours in an eight-hour work day. Even though plaintiffs attorney suggested that plaintiff had to lie down during the workday, Dr. Butwinick did not assess such a restriction in the residual functional capacity form that he completed for plaintiff. In addition, during the relevant time period, plaintiffs husband was recovering from a triple bypass surgery and her children were no more than five years old. It is unlikely that plaintiff would have been able to limit her activities as much as she claimed, even if her older son helped out. In" }, { "docid": "174236", "title": "", "text": "the direction of his physicians, a great deal of weight during the time at issue. To the degree that the surrounding facts and cir cumstances might suggest that this high degree of cooperation with his physicians is an indication that Mr. Scrogham also might not be inclined to overemphasize his pain or other physical limitations, the ALJ should take such cooperation into consideration in assessing his credibility. This determination is, of course, one for the ALJ. C. Even if we were confident that the ALJ had selected evidence representative of the record as a whole on which to base her opinion, to the extent that the ALJ relied on evidence of Mr. Scrogham’s daily activities to determine that he was capable of returning to work, those activities do not appear to us to constitute “substantial evidence that [he] does not suffer disabling pain,” and they “do not establish that [he] is capable of engaging in substantial physical activity.” Clifford v. Apfel, 227 F.3d 868, 872 (7th Cir.2000). In Clifford, the claimant testified that her typical household chores took her only about two hours to complete. Clifford indicated that she had to rest while doing household chores. She stated that she cooks, but only simple meals. She also indicated that she could vacuum, but it hurts her back. She stated that she goes grocery shopping about three times a month and “sometimes” carries groceries from the car to the apartment. She further stated that she could lift a twenty pound sack of potatoes, but she “wouldn’t carry it long.” Clifford testified that her husband helps her with the household chores whenever possible. While she babysits her grandchildren, she indicated that her depression is aggravated while watching them. In regard to walking, Clifford stated that she walked to get exercise at her doctor’s suggestion. However, she stated that she must rest after walking anywhere between three and five blocks. Clifford further indicated that she plays cards (two rounds) about twice a month. Id. We held in Clifford that the claimant’s “testimony on her daily activities d[id] not undermine or contradict her claim" }, { "docid": "4237835", "title": "", "text": "Plaintiffs reported daily activities, which include doing some household chores (e.g., dusting and making the bed), small tasks, home exercises, shopping, and visiting her family two to three times a week are inconsistent with Dr. Dachman’s medical opinion that Plaintiff cannot sit or stand for more than thirty minute intervals. (R. 64, 75, 202, 206.) Moreover, Defendant asserts that Plaintiffs desire to take classes in Interior Design by correspondence and move to Florida when her home was sold are also inconsistent with Dr. Dachman’s medical opinion. (R. 28.) The Court initially notes that because Plaintiff is able to perform some daily activities on an occasional basis does not mean that the severity of her pain is less credible. See e.g. 20 C.F.R. § 404.1572(c) (“Generally, we do not consider activities like taking care of yourself, household tasks, hobbies, therapy, school attendance, club activities, or social programs to be substantial gainful activity”); Clifford, 227 F.3d at 872 (noting “minimal daily activities ... do not establish that a person is capable of engaging in substantial physical activity”); Zurawski v. Apfel, 245 F.3d 881, 887 (7th Cir.2001) (finding that the plaintiffs activities “[were] fairly restricted (e.g., washing dishes, helping his children prepare for school, doing laundry, and preparing dinner) and not of a sort that necessarily undermines or contradicts a claim of disabling pain”). Based on the record, Plaintiff has a limited number of daily activities that she is capable of performing. Plaintiffs ability to perform these activities is not indicative of the fact that her pain is not disabling and consequently, inconsistent with Dr. Dachman’s opinion. The fact that Plaintiff can perform some occasional daily activities does not, in itself, mean that she is capable of working or engaging in substantial gainful activity. See e.g., 20 C.F.R. § 404.1572(c). Rather, Dr. Dachman spe cifically opined that Plaintiff cannot sit or stand for more than thirty minute intervals, and when considering his opinion, in conjunction with the VE’s testimony, Plaintiff is unequivocally disabled. The Court concludes that there is no evidence in the record to indicate that Plaintiff is not credible. For example," } ]

[ { "docid": "18596599", "title": "", "text": "to Bradford's wife, Patrice. David and Ronald Roberts were found guilty and each received a four-year sentence. A. Severance and the Speedy Trial Act The Roberts contend that, because their motion for severance was wrongly denied, the delay resulting from the consolidation of their trial with the other prosecutions is not excludable time under the Speedy Trial Act, 18 U.S.C. § 3161(h), the time for trial has elapsed, and the case against them must be dismissed. These claims lack merit and require little discussion. Defendants argue that their motion for severance was wrongly denied because the voluminous evidence of career drug trafficking by others prejudiced their case, denying them a fair trial. They claim that they should have been prosecuted separately because their crime, if any, bears an insufficient relation to the overarching drug scheme to support a joint prosecution. We reject this argument. The Roberts were charged with two separate counts of conspiracy with the other defendants and with unindicted coconspirators. The gravamen of conspiracy is that each conspirator is fully liable for the acts of all coconspirators in furtherance of the conspiracy. Thus, joinder is highly favored in conspiracy cases, over and above the general disposition towards joinder for reasons of efficiency and judicial economy. See United States v. Parodi, 703 F.2d 768, 779 (4 Cir.1983), citing United States v. Provenzano, 688 F.2d 194, 199 (3 Cir.1982); United States v. Papia, 560 F.2d 827, 836 (7 Cir.1977); United States v. Kahn, 381 F.2d 824, 838 (7 Cir.), cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967). Severance under Fed.R.Civ.P. 14 is a matter committed to the sound discretion of the district court, United States v. Spoone, 741 F.2d 680, 688 (4 Cir.1984); United States v. Santoni, 585 F.2d 667, 674 (4 Cir.1978) cert. denied, 440 U.S. 910, 99 S.Ct. 1221, 59 L.Ed.2d 459 (1979). We see nothing to suggest that that discretion has been abused in this case. Accordingly, the delay was properly excluded under 18 U.S.C. § 3161(h)(7), which excludes from the Speedy Trial calculation a “reasonable period of delay when the defendant is" } ]

[ { "docid": "6744574", "title": "", "text": "Chief Gallucci by co-defendant’s counsel was to give the jury a poor impression of the Chief, thereby giving the Government’s principal witness Eugene Roberts greater credibility. The appellee contends that appellant’s claim of denial of a fair trial- by the ineffective assistance rendered by co-defendant’s counsel is in effect a contention that he was prejudiced by joinder of the trials where conflicting defense strategies were asserted. In the instant action, the appellant was tried jointly with co-conspirator, Frank Van Beaver. Joinder of defendants is allowed under Rule 8(b) of the Federal Rules of Criminal Procedure which states that: “Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” If, however, the defendant will be prejudiced by joinder, he may move for severance under Rule 14 of the Federal Rules of Criminal Procedure which states that: “If it appears that a defendant or the Government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.” Rule 14 permits a severance despite the propriety of the original joinder, if it is needed to avoid prejudice. 1 Wright and Miller § 221, p. 432. The appellant filed a motion to sever on November 24, 1978 which was subsequently denied. (This motion was not based on the examination of Gallucci.) The grant or denial of severance is clearly within the sound discretion of the trial court and its action on such a motion will be overturned only when there has been a clear abuse of such discretion. United States v. Becker, 585 F.2d 703 (4th Cir. 1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 50 (1979); United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir. 1977); United States v. Truslow, 530 F.2d 257, 261 (4th" }, { "docid": "6716484", "title": "", "text": "States v.] Parodi, 703 F.2d at 768, 780 (4th Cir.1983) (Citations omitted.) Moreover, the decision to deny severance, which is within the sound discretion of the district judge, will not be overturned unless the defendant affirmatively demonstrates a clear abuse of discretion through having been deprived of a fair trial and having suffered a miscarriage of justice. (Citations omitted.) To make such showing where severance has been sought “on the ground of conflicting defenses[,] it must be demonstrated that the conflict is so prejudicial that the differences are irreconcilable, ‘and that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.’ ” [United States v.] Becker, 585 F.2d 703, 707 (4th Cir.1978) (quoting [United States v.] Ehrlichman, 546 F.2d 910, 929 (D.C.Cir.1976) and United States v. Robinson, 432 F.2d 1348, 1351 (D.C.Cir.1970)). United States v. Spitler, 800 F.2d 1267, 1271-72 (4th Cir.1986). The defendants offer no showing of actual prejudice from being joined for trial but state simply that there was “little ability among the defense counsel to work together” and that “[mjultiple trials, having the inherent tendency of unfairness, should be used only sparingly by the Courts____” This is insufficient to demonstrate an abuse of discretion. VII. Defendant James Clark contends that district court committed error by not severing two tax charges from trial of the fourteen drug-related counts. Rule 8(a), Fed.R.Crim.P., provides that “[t]wo or more offenses may be charged in the same indictment ... in a separate count for each offense if the offenses charged ... are based on the same ... acts or transactions connected together____” Joinder of the offenses charged in this indictment was proper under Rule 8(a). The tax counts charge James Clark with wilfully signing income tax returns for the calendar years 1987 and 1988, knowing that the returns omitted the reporting of income which he had received from drug transactions. The drug transactions charged in Counts Three through Fourteen were alleged to have occurred in 1987 and 1988. Even if the motion for a severance had been granted, evidence about the drug transactions would have been admissible in" }, { "docid": "22279641", "title": "", "text": "does not support this contention. We, therefore, reject their argument that the denial of severance constituted reversible error. In United States v. Dye, 508 F.2d 1226 (6th Cir.1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975), we stated that “the general rule in conspiracy cases is that persons jointly indicted should be tried together and that this is particularly true where the offenses charged may be established against all of the defendants by the same evidence and which result from the same series of acts.” Id. at 1236. Federal Rule of Criminal Procedure 14 provides, in pertinent part: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. Fed.R.Crim.P. 14. The decision to grant or deny a motion for severance pursuant to Fed.R.Crim.P. 14 rests within the district court’s sound discretion. We will not disturb the district court’s denial of a Rule 14 motion for severance absent an abuse of discretion. United States v. Zalman, 870 F.2d 1047, 1053 (6th Cir.), cert. denied, 492 U.S. 921, 109 S.Ct. 3248, 106 L.Ed.2d 594 (1989). To establish an abuse of discretion, the movant must make a “strong showing of prejudice.” United States v. Gallo, 763 F.2d 1504, 1525 (6th Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1200, 89 L.Ed.2d 314 (1986). The movant satisfies this burden if he or she shows that the jury was unable “to separate and to treat distinctively evidence that is relevant to each particular defendant on trial.” Id. “There is a strong policy in favor of joint trials when charges will be proved by the same series of acts_” United States v. Horton, 847 F.2d 313, 317 (6th Cir.1988) (citation omitted). Even if the movant establishes some potential jury confusion, this confusion must be balanced against the need for speedy and efficient trials. United States v. Swift, 809" }, { "docid": "6744575", "title": "", "text": "prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.” Rule 14 permits a severance despite the propriety of the original joinder, if it is needed to avoid prejudice. 1 Wright and Miller § 221, p. 432. The appellant filed a motion to sever on November 24, 1978 which was subsequently denied. (This motion was not based on the examination of Gallucci.) The grant or denial of severance is clearly within the sound discretion of the trial court and its action on such a motion will be overturned only when there has been a clear abuse of such discretion. United States v. Becker, 585 F.2d 703 (4th Cir. 1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 50 (1979); United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir. 1977); United States v. Truslow, 530 F.2d 257, 261 (4th Cir. 1975); United States v. Gambrill, 449 F.2d 1148, 1159 (D.C.Cir. 1971). The inconvenience and expense to the Government and witnesses of separate trials must be weighed by the trial court against the prejudice to the defendants inherent in a joint trial. The trial court’s determination will not be disturbed unless the denial of a severance deprives the defendants of a fair trial and results in a miscarriage of justice. United States v. Becker, 585 F.2d 703, 706 (4th Cir. 1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 50 (1979); United States v. Walsh, 544 F.2d 156, 160 (4th Cir. 1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1105, 51 L.Ed.2d 539 (1977); United States v. Shuford, 454 F.2d 772, 775-76 (4th Cir. 1971). The burden is upon the appellant to show affirmatively an abuse of discretion on the part of the trial court in denying severance. Becker, supra, 707; United States v. Crisona, 271 F.Supp. 150 (D.C.N.Y.1967). The appellant has not met that burden in the instant action. The appellant was" }, { "docid": "22692757", "title": "", "text": "given.” Slip op. at 7. We uphold this determination since it is not clearly erroneous. See United States v. Depew, 932 F.2d 324, 327 (4th Cir.), cert. denied, = U.S.-, 112 S.Ct. 210, 116 L.Ed.2d 169 (1991). We therefore uphold the district court’s denial of Flan-nery’s motion to suppress. III. The Rushers contest the district court’s denial of their individual motions to sever their trials, alleging prejudice from the joint trial. Specifically, they argue that Flannery would have testified in their separate trials that the guns and drugs were his and not the Rushers’ since he so stated to the probation officer in presentence investigation. According to the Rushers, the government would have no case against them if Flannery owned the contraband, except for the drugs in Sarah’s personal possession. Under Fed.R.Crim.P. 14, the court may grant a severance if it appears that a defendant is “prejudiced” by a joinder of offenses or of defendants. Barring “special circumstances,” however, the general rule is that defendants indicted together should be tried together for the sake of judicial economy. United States v. Brugan, 655 F.2d 540, 542 (4th Cir.1981). The district court’s decision to grant or deny a motion for severance will be overturned only for a clear abuse of discretion. Person v. Miller, 854 F.2d 656, 665 (4th Cir. 1988), cert. denied, 489 U.S. 1011, 109 S.Ct. 1119, 103 L.Ed.2d 182 (1989). “Such an abuse of discretion will be found only where the trial court’s decision to deny a severance ‘deprives the defendants] of a fair trial and results in a miscarriage of justice.’ ” Id. (quoting United States v. Becker, 585 F.2d 703, 706 (4th Cir.1978)). In United States v. Parodi, 703 F.2d 768, 779-81 (4th Cir.1983), we set out what a defendant must show to receive a severance based on need for a co-defendant’s testimony. In the case at bar, the Rushers - must first show a “ ‘reasonable probability ... that the proffered testimony would, in fact materialize’ and that the ‘co-defendant would have waived his Fifth Amendment’ right at a separate trial.” Id. at 779 (quoting United" }, { "docid": "22203825", "title": "", "text": "alleged to have “participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.” Fed. R.Crim.P. 8(b). Generally, we adhere to the principle that defendants indicted together should be tried together, and a defendant must show that he was prejudiced by the denial of a severance motion in order to establish that the district court abused its broad discretion in that regard. United States v. Strickland, 245 F.3d 368, 384 (4th Cir.2001); see also Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (noting that courts should grant severance “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence”); United States v. Harris, 498 F.3d 278, 291 (4th Cir.2007) (noting that a district court abuses its discretion “only where the trial court’s decision to deny a severance deprives the defendants of a fair trial and results in a miscarriage of justice”) (citation and internal quotation marks omitted); Fed.R.Crim.P. 14(a) (“If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.”). Moreover, a defendant is not entitled to severance merely because he might have had a better chance of acquittal in a separate trial. Zafiro, 506 U.S. at 540, 113 S.Ct. 933. 1 The presence of conflicting or antagonistic defenses alone does not require severance under Rule 14(a). Id. at 538, 113 S.Ct. 933. “The mere presence of hostility among defendants ... or the desire of one to exculpate himself by inculpating another [are] insufficient grounds to require separate trials.” United States v. Spitler, 800 F.2d 1267, 1271 (4th Cir.1986) (citation, alterations, and internal quotation marks omitted). The antagonistic defenses must involve more than “finger pointing.” United States v. Najjar, 300 F.3d 466, 474 (4th Cir.2002)." }, { "docid": "21612692", "title": "", "text": "test for reversible prosecutorial misconduct generally has two components: that ‘(1) the prosecutor’s remarks or conduct must in fact have been improper, and (2) such remarks or conduct must have prejudicially affected the defendant’s substantial rights so as to deprive the defendant of a fair trial.’ ” United States v. Brockington, 849 F.2d 872, 875 (4th Cir.1988) (quoting United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.1985)). Several factors are relevant to the determination of possible prejudice to the defendant: “(1) the degree to which the prosecutor’s remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.” United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir.1983). Chorman claims that the prosecutor contrasted Erdman’s “clean background” and his ability to obtain licenses necessary to run the salvage operation with Chorman’s admitted inability to obtain the licenses, strongly implying that he lacked Erdman’s clean background. This statement, he contends, would be recognized by the jury as a veiled reference to a past criminal record. The prejudicial effect of references to a defendant’s past criminal record is well recognized. See, e.g., United States v. Esquer-Gamez, 550 F.2d 1231, 1234 (9th Cir.1977). Chorman relies on United States v. Freeman, 598 F.2d 306, 307-08 (D.C.Cir.1979) (per curiam), for the proposition that reference to a defendant’s “background” is prejudicial error. And he emphasizes that inclusion of the remarks in the prosecution’s rebuttal closing magnified the prejudicial effect of the remarks since the defense had no further opportunity to respond. Cf. United States ex rel. Shaw v. De Robertis, 755 F.2d 1279, 1284-85 (7th Cir.1985) (fact that prosecutor made challenged remark during rebuttal closing part of “totality of the circumstances” considered by the court in finding prejudicial error). We disagree with Chorman’s initial premise that the prosecutor’s comments were improper. We find no improper reference to Chorman’s past criminal record;" }, { "docid": "21612693", "title": "", "text": "Chorman’s admitted inability to obtain the licenses, strongly implying that he lacked Erdman’s clean background. This statement, he contends, would be recognized by the jury as a veiled reference to a past criminal record. The prejudicial effect of references to a defendant’s past criminal record is well recognized. See, e.g., United States v. Esquer-Gamez, 550 F.2d 1231, 1234 (9th Cir.1977). Chorman relies on United States v. Freeman, 598 F.2d 306, 307-08 (D.C.Cir.1979) (per curiam), for the proposition that reference to a defendant’s “background” is prejudicial error. And he emphasizes that inclusion of the remarks in the prosecution’s rebuttal closing magnified the prejudicial effect of the remarks since the defense had no further opportunity to respond. Cf. United States ex rel. Shaw v. De Robertis, 755 F.2d 1279, 1284-85 (7th Cir.1985) (fact that prosecutor made challenged remark during rebuttal closing part of “totality of the circumstances” considered by the court in finding prejudicial error). We disagree with Chorman’s initial premise that the prosecutor’s comments were improper. We find no improper reference to Chorman’s past criminal record; consequently, the remarks challenged here fail the first prong of the Brockington test. United States v. Freeman is inapposite when there is no reference to the defendant’s “background.” Erdman was the focus of the argument at that point, which was consistent with the government’s theory that he acted as a “front” for the illegal operations. Erdman admitted that one of his principal functions at Erdman Motors and at Island Auto was to obtain necessary licenses. The prosecutor fairly paraphrased Agent Egan’s testimony in support of this theory. Chorman’s attempt to find allusion to his past criminal record by juxtaposing Erdman’s “clean background” and the reference that Chorman could not get a license is not persuasive. E Erdman’s contention that the district court erred in failing to grant his motion to sever is similarly without merit. Under Fed.R.Crim.P. 14, the court may grant a severance if it appears that a defendant is “prejudiced” by a joinder of offenses or of defendants. Barring “special circumstances,” the general rule is that defendants indicted together should be tried together." }, { "docid": "2679348", "title": "", "text": "the joinder of defendants and offenses was appropriate. Although defendants are properly-joined, they still may seek severance under Federal Rule of Criminal Procedure 14. Rule 14 authorizes the trial court to sever counts or defendants “[i]f it appears that a defendant ... is prejudiced by a joinder ... . ” Fed.R.Crim.P. 14. A motion for severance is addressed to the discretion of the trial court, and to prevail defendant must make a strong showing of prejudice. See United States v. Walker, 706 F.2d 28 at 30 (1st Cir.1983); United States v. Patterson, 644 F.2d 890, 900 (1st Cir.1981); United States v. Davis, 623 F.2d 188, 194 (1st Cir. 1980). We review a trial court’s denial of a severance motion for abuse of discretion and reverse only if denial deprived defendant of a fair trial, resulting in a miscarriage of justice. See Davis, 623 F.2d at 194; United States v. Thomann, 609 F.2d 560, 564 (1st Cir.1979). Ordinarily, alleged coconspirators and the substantive offenses furthering the conspiracy may be joined together in one trial. See Luna, 585 F.2d at 5. Defendants contend, however, that the district court erred in failing to sever and that they suffered prejudice by joinder in the following four ways: (1) the spillover effect of evidence; (2) the existence of antagonistic defenses; (3) the loss of testimony of a codefendant; and (4) unfavorable evidentiary rulings. Both Arruda and Ringland complain that their trial was unfair because they were convicted as a result of “guilt by association,” rather than on the basis of independent evidence relating to their individual involvement. Arruda further argues that he was on the periphery of the conspiracy and therefore should not have been tried along with coconspirators whose guilt was established by overwhelming evidence. Resolution of this issue is governed by United States v. Smolar, 557 F.2d 13 (1st Cir.), cert, denied, 434 U.S. 866, 98 S.Ct. 203, 54 L.Ed.2d 143, 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 453, 434 U.S. 971, 98 S.Ct. 523, 54 L.Ed.2d 461 (1977), in which we held that allegations identical to those raised by defendants here" }, { "docid": "21547664", "title": "", "text": "Miller’s pro se representation; that his defense was antagonistic to that presented by Stephen Miller; and that he was prevented from presenting exculpatory testimony from Stephen Miller. The grant or denial of a motion for a severance is a matter committed in the first instance to the sound discretion of the trial court and that court’s decision will not be overturned absent a clear abuse of that discretion. United States v. Becker, 585 F.2d 703, 706 (4th Cir.1978). Such an abuse of discretion will be found only where the trial court’s decision to deny a severance “deprives the defendants] of a fair trial and results in a miscarriage of justice.” Id. (citations omitted). Though the grounds cited by Miller can serve as the basis for the grant of a severance in an appropriate case, we note that neither the presence of antagonistic defenses nor a pro se co-defendant is prejudicial per se. See, e.g., United States v. Oglesby, 764 F.2d 1273, 1276 (7th Cir.1985) (pro se defendant); Becker, 585 F.2d at 707 (antagonistic defenses). Guided by this narrow standard of review, we do not believe that the district court abused its discretion in denying Miller’s motion for severance. We take his specific contentions in turn. The case itself, contrary to Miller’s characterization, is not overly complex. The case was prosecuted on the theory that Miller, by virtue of instructions given to his agents, including Stephen Miller, continued to engage in certain activities even though the court’s order prohibited him from doing so. Much of the prosecution’s case rested on the testimony of two key witnesses— Holder and Jones. Nor do we believe that the presence of a common surname between the co-defendants caused undue confusion. The district court’s opening instructions warned the jury to distinguish strictly between Glen and Stephen Miller when listening to the evidence, particularly where the evidence itself did not explicitly make the distinction. In its closing instructions the court warned the jury to consider the case carefully and separately against each co-defendant and that a verdict against one did not necessitate the same verdict against the" }, { "docid": "21612694", "title": "", "text": "consequently, the remarks challenged here fail the first prong of the Brockington test. United States v. Freeman is inapposite when there is no reference to the defendant’s “background.” Erdman was the focus of the argument at that point, which was consistent with the government’s theory that he acted as a “front” for the illegal operations. Erdman admitted that one of his principal functions at Erdman Motors and at Island Auto was to obtain necessary licenses. The prosecutor fairly paraphrased Agent Egan’s testimony in support of this theory. Chorman’s attempt to find allusion to his past criminal record by juxtaposing Erdman’s “clean background” and the reference that Chorman could not get a license is not persuasive. E Erdman’s contention that the district court erred in failing to grant his motion to sever is similarly without merit. Under Fed.R.Crim.P. 14, the court may grant a severance if it appears that a defendant is “prejudiced” by a joinder of offenses or of defendants. Barring “special circumstances,” the general rule is that defendants indicted together should be tried together. United States v. Brugman, 655 F.2d 540, 542 (4th Cir.1981). Joinder is highly favored in conspiracy trials. See United States v. Tedder, 801 F.2d 1437, 1450 (4th Cir.1986). The district court’s decision to grant or deny a motion for severance will be overturned only for a clear abuse of discretion. Person v. Miller, 854 F.2d 656, 665 (4th Cir.1988). “Such an abuse of discretion will be found only where the trial court’s decision to deny a severance ‘deprives the defendant^ of a fair trial and results in a miscarriage of justice.’ ” Id. (quoting United States v. Becker, 585 F.2d 703, 706 (4th Cir.1978)). The district court did not abuse its discretion in refusing to sever Erdman from the case. The relative strength of the government’s case against individual defendants is no basis for severance in the absence of a strong showing of prejudice. See United States v. Brugman, 655 F.2d at 543. The prejudice Erdman claims to have suffered allegedly arose principally from the admission of Joel Denson’s testimony. The court, however, exercising its" }, { "docid": "426789", "title": "", "text": "together as though brought in a single indictment or information if all offenses and all defendants could have been joined in a single indictment or information.” Fed.R.Crim.P. 13. A group of defendants “could have been joined in a single indictment” if they “are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.” Fed.R.Crim.P. 8(b). Such is the case here, because the indictments against Scott Lawson and his co-defendants allege that they were all involved in the same acts and transactions with respect to the same animal fighting venture and conspiracy. Accordingly, the district court was permitted to exercise its discretion to join Scott Lawson’s trial with the trials of his co-defendants. Joint trials promote efficiency and “play a vital role in the criminal justice system.” Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Joinder is highly favored in conspiracy trials, such as the present case. United States v. Chorman, 910 F.2d 102, 114 (4th Cir.1990); see also United States v. Ford, 88 F.3d 1350, 1361 (4th Cir.1996) (“For reasons of. efficiency and judicial economy, courts prefer to try joint-conspirators together.”). A district court’s decision to deny a motion for separate trials will be overturned only for a “clear abuse of discretion.” Chorman, 910 F.2d at 114. We will find a “clear abuse” of the district court’s discretion only in cases in which the district court’s denial of such a motion “deprives the defendant of a fair trial and results in a miscarriage of justice.” Id. (citations and internal quotation marks omitted). Upon our review of the record, we conclude that Scott Lawson cannot show that he was deprived of a fair trial or that a miscarriage of justice occurred. Accordingly, we hold that the district court did not abuse its discretion in joining the charges against Scott Lawson for trial with his co-defendants. V. We next consider Lawson’s argument that he is entitled to a new trial because a juror committed misconduct by researching on Wikipedia the term “sponsor,”" }, { "docid": "23420055", "title": "", "text": "or series of transactions, or constitute parts of a “common scheme.” To the extent that the proceeds from the loans, fraudulently applied to maintain LaRouche’s lifestyle, also were not reported to the IRS, initial joinder was proper under Rule 8. Rule 14 of the Federal Rules of Criminal Procedure provides that a court may grant a severance from a prejudicial joinder. A trial court’s decision not to sever is reviewed under the “abuse of discretion” standard. United States v. Lane, 474 U.S. 438, 449 n. 12, 106 S.Ct. 725, 732 n. 12, 88 L.Ed.2d 814 (1986); Person v. Miller, 854 F.2d 656, 665 (4th Cir.1988) (abuse of discretion only found when trial court’s decision to deny severance results in “miscarriage of justice”), cert. denied, — U.S. -, 109 S.Ct. 1119, 103 L.Ed.2d 182 (1989). Whether Judge Bryan abused his discretion in denying the defendants’ motion for a severance and concluding that there was not significant prejudice to warrant separate trials on the mail fraud and tax fraud counts must be evaluated as follows: The trial court must weigh the inconvenience and expense to the government and witnesses of separate trials against the prejudice to the defendants inherent in a joint trial, and its determination will not be disturbed unless the denial of a severance deprives the movant a fair trial and results in a miscarriage of justice. The movant must show something more than merely a better chance of acquittal and must overcome the burden imposed by a stringent standard of review. United States v. Santoni, 585 F.2d 667, 674 (4th Cir.1978) (citations omitted), cert. denied, 440 U.S. 910, 99 S.Ct. 1221, 59 L.Ed.2d 459 (1979). We have also made clear that curative instructions given to the jury by the district court go a long way in eliminating any prejudice resulting from the spillover effects of joinder. See United States v. Porter, 821 F.2d 968, 972 (4th Cir.1987), cert. denied, 485 U.S. 934, 108 5.Ct. 1108, 99 L.Ed.2d 269 (1988). There was substantial overlap between the mail fraud and tax charges: (1) at least 50% of LaRouche’s unreported personal income" }, { "docid": "21270517", "title": "", "text": "prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Absent special circumstances, defendants indicted together should be tried together, see United States v. Brugman, 655 F.2d 540, 542 (4th Cir.1981), and this presumption is especially strong in conspiracy cases, see United States v. Chorman, 910 F.2d 102, 114 (4th Cir.1990). We review a district court’s decision to deny a motion to sever for abuse of discretion, see United States v. Jones, 356 F.3d 529, 535 (4th Cir.2004), which we will find “only where the trial court’s decision to deny a severance deprives the defendants of a fair trial and results in a miscarriage of justice,” Person v. Miller, 854 F.2d 656, 665 (4th Cir.1988) (alteration & internal quotation marks omitted). Here, the segment showing Smith speaking about “snitching” and drug dealing was admitted against Smith only. The district court admitted the second segment to show “general relationships” between the gang members. J.A. 257. In order to minimize any unfair prejudice, the court instructed the jury regarding the limited purpose of the DVD’s admissibility and added that “there’s absolutely no evidence that either Mr. Harris or Mr. Royal appears in any of the scenes ... of the DVD.” J.A. 257. Although Appellants maintain that “allowing the jury to consider any part of the video as evidence against them was improper,” Brief of Appellants at 47, they offer no reason why the behavior captured on tape would be particularly prejudicial to them, especially since the jury was specifically instructed that there was no evidence that they appeared in the video. Moreover, we know of no reason why any prejudice to them from the video would have affected their opportunity to receive a fair trial. We therefore hold that the district court acted within its discretion in denying their motion. IV. Appellants next contend that the district court committed plain error in allowing improper rebuttal argument from the government. We disagree. Royal’s defense counsel argued in closing that the prosecutor had essentially blamed Appellants for" }, { "docid": "21547663", "title": "", "text": "district court has wide discretion in the conduct of voir dire, United States v. Robinson, 804 F.2d 280, 283 (4th Cir.1986), as well as in deciding whether to excuse a juror for cause. Loucas, 629 F.2d at 992. This discretion includes the evaluation of “potential jurors’ inflections and gestures, as well as their actual words.” United States v. Griley, 814 F.2d 967, 974 (4th Cir.1987). We do not believe that the district court abused its discretion in failing to excuse Farmer for cause, particularly in light of his repeated assertions that he was able to render a fair and impartial verdict on the evidence. V Miller next contends that the district court erred by denying his motion for severance. Miller sets forth a number of grounds in support of his claim: that the common surname shared by him and his co-defendant, Stephen Miller, was a source of confusion that, coupled with the complex nature of the evidence, resulted in a spillover to his prejudice' of evidence implicating Stephen Miller; that he was prejudiced by Stephen Miller’s pro se representation; that his defense was antagonistic to that presented by Stephen Miller; and that he was prevented from presenting exculpatory testimony from Stephen Miller. The grant or denial of a motion for a severance is a matter committed in the first instance to the sound discretion of the trial court and that court’s decision will not be overturned absent a clear abuse of that discretion. United States v. Becker, 585 F.2d 703, 706 (4th Cir.1978). Such an abuse of discretion will be found only where the trial court’s decision to deny a severance “deprives the defendants] of a fair trial and results in a miscarriage of justice.” Id. (citations omitted). Though the grounds cited by Miller can serve as the basis for the grant of a severance in an appropriate case, we note that neither the presence of antagonistic defenses nor a pro se co-defendant is prejudicial per se. See, e.g., United States v. Oglesby, 764 F.2d 1273, 1276 (7th Cir.1985) (pro se defendant); Becker, 585 F.2d at 707 (antagonistic defenses). Guided" }, { "docid": "8138320", "title": "", "text": "Claims Ordinarily, people who are indicted together are tried together. United States v. Clark, 928 F.2d 639, 644 (4th Cir.1991). Rule 8(b) governs joinder. The test to determine whether joinder is permissible is whether defendants are alleged to have participated in the same act or transaction or in the same series of acts or transactions. United States v. Brugman, 655 F.2d 540, 542 (4th Cir.1981). Under United States v. Odom, 888 F.2d 1014, 1017 (4th Cir.1989), cert. denied, 498 U.S. 810, 111 S.Ct. 44, 112 L.Ed.2d 21 (1990), if joinder is proper, the trial judge can use her discretion to determine whether or not to proceed with a joint trial. Rule 14 governs severance and states that the decision to sever is one within the sound discretion of the trial judge. Id. If it appears that a defendant or the government is prejudiced by a joinder or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires. The defendant bears the burden of showing that a joint trial would be so unfairly prejudicial that a miscarriage of justice would result. Brugman, 655 F.2d at 542-43. Neither the defendants’ claim for severance nor the claim regarding misjoinder has merit. 4. The Hair Sample Appellant Williams’ argument that the court erred in refusing the defendant the opportunity to conduct his own independent analysis of the hair sample is so lacking in merit that it does not warrant further discussion. Conclusion The police officers had probable cause to arrest the defendants. The subsequent search of their vehicle was lawful as a search incident to a valid arrest. The evidence obtained from that search was, therefore, admissible. We decline to address the issue of whether Brady v. Maryland should provide the rule of law applicable in the context of a pretrial suppression hearing. Accordingly, the judgment is AFFIRMED. . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637" }, { "docid": "21612691", "title": "", "text": "stolen autos by members of the conspiracy, from which the jury could infer knowledge that the autos were stolen, could have been considered by the jury as evidence against Chorman arid Erd-man. Appellants concede that the evidence of Thomas Bosco’s actual possession of stolen vehicles was at least “relatively strong,” to say nothing of the evidence of possession by Island Auto, Silk Hope, and McLaurin. There was no need for the government to prove actual or constructive possession by Chorman or Erdman when the evidence clearly showed actual possession of recently stolen property by other members of the conspiracy. See United States v. Alvarado, 898 F.2d at 993; United States v. Moreno, 588 F.2d 490, 493 (5th Cir.1979). The court did not err in instructing the jury as it did. Cf. United States v. Ashley, 587 F.2d at 843-45 (no conspiracy alleged; insufficient evidence of actual possession by one defendant). D Chorman alleges that the prosecutor committed prejudicial error by alluding to his past criminal record in his rebuttal argument. We have stated that “[t]he test for reversible prosecutorial misconduct generally has two components: that ‘(1) the prosecutor’s remarks or conduct must in fact have been improper, and (2) such remarks or conduct must have prejudicially affected the defendant’s substantial rights so as to deprive the defendant of a fair trial.’ ” United States v. Brockington, 849 F.2d 872, 875 (4th Cir.1988) (quoting United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.1985)). Several factors are relevant to the determination of possible prejudice to the defendant: “(1) the degree to which the prosecutor’s remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.” United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir.1983). Chorman claims that the prosecutor contrasted Erdman’s “clean background” and his ability to obtain licenses necessary to run the salvage operation with" }, { "docid": "21270516", "title": "", "text": "involvement.”); cf. United States v. Tyler, 281 F.3d 84, 92-93 (3d Cir.2002) (rejecting argument that § 1512 exceeds Congress’ authority under the Necessary and Proper Clause to the extent it allows convictions “when no federal proceeding is contemplated and when a victim did not intend to cooperate with a federal officer”). III. Royal and Harris next argue that the district court erred in denying their motion to sever their trial from Smith’s when the government introduced a particular DVD. One segment of the DVD showed Bloods members wearing gang colors and making gang hand signs. Another depicted Smith speaking about drug dealing and the importance of not “snitching” to the police. Royal and Harris maintain that the admission of the DVD prejudiced them because it was “replete with profanity, vulgarities, threats and total depravity.” Brief of Appellants at 44. We find no error. When defendants have been properly joined, severance is proper “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Absent special circumstances, defendants indicted together should be tried together, see United States v. Brugman, 655 F.2d 540, 542 (4th Cir.1981), and this presumption is especially strong in conspiracy cases, see United States v. Chorman, 910 F.2d 102, 114 (4th Cir.1990). We review a district court’s decision to deny a motion to sever for abuse of discretion, see United States v. Jones, 356 F.3d 529, 535 (4th Cir.2004), which we will find “only where the trial court’s decision to deny a severance deprives the defendants of a fair trial and results in a miscarriage of justice,” Person v. Miller, 854 F.2d 656, 665 (4th Cir.1988) (alteration & internal quotation marks omitted). Here, the segment showing Smith speaking about “snitching” and drug dealing was admitted against Smith only. The district court admitted the second segment to show “general relationships” between the gang members. J.A. 257. In order to minimize" }, { "docid": "22692758", "title": "", "text": "judicial economy. United States v. Brugan, 655 F.2d 540, 542 (4th Cir.1981). The district court’s decision to grant or deny a motion for severance will be overturned only for a clear abuse of discretion. Person v. Miller, 854 F.2d 656, 665 (4th Cir. 1988), cert. denied, 489 U.S. 1011, 109 S.Ct. 1119, 103 L.Ed.2d 182 (1989). “Such an abuse of discretion will be found only where the trial court’s decision to deny a severance ‘deprives the defendants] of a fair trial and results in a miscarriage of justice.’ ” Id. (quoting United States v. Becker, 585 F.2d 703, 706 (4th Cir.1978)). In United States v. Parodi, 703 F.2d 768, 779-81 (4th Cir.1983), we set out what a defendant must show to receive a severance based on need for a co-defendant’s testimony. In the case at bar, the Rushers - must first show a “ ‘reasonable probability ... that the proffered testimony would, in fact materialize’ and that the ‘co-defendant would have waived his Fifth Amendment’ right at a separate trial.” Id. at 779 (quoting United States v. Shuford, 454 F.2d 772, 778 (4th Cir.1971)). There is, however, no evidence that Flannery would have testified that the drugs were his at a separate trial. Severance is not required when the co-defendant would testify only if his case came first. Id. The fact that Flannery failed to testify during the joint trial and claimed the drugs only after conviction tends to show that for him to agree to testify at a separate trial of the Rushers, if he would even do so, he would have required that he be tried first, and there is nothing in the record to refute this argument. , Second, the exculpatory nature and effect of the testimony must be definite and establish that the Rushers would be unable to obtain a fair trial without severance, not merely that a separate trial would offer them a better chance of acquittal. Id. at 780. The Rushers failed to make this showing: Flannery’s testimony was purely hypothetical and the Rushers entirely failed to demonstrate how they were denied a fair" }, { "docid": "21612695", "title": "", "text": "United States v. Brugman, 655 F.2d 540, 542 (4th Cir.1981). Joinder is highly favored in conspiracy trials. See United States v. Tedder, 801 F.2d 1437, 1450 (4th Cir.1986). The district court’s decision to grant or deny a motion for severance will be overturned only for a clear abuse of discretion. Person v. Miller, 854 F.2d 656, 665 (4th Cir.1988). “Such an abuse of discretion will be found only where the trial court’s decision to deny a severance ‘deprives the defendant^ of a fair trial and results in a miscarriage of justice.’ ” Id. (quoting United States v. Becker, 585 F.2d 703, 706 (4th Cir.1978)). The district court did not abuse its discretion in refusing to sever Erdman from the case. The relative strength of the government’s case against individual defendants is no basis for severance in the absence of a strong showing of prejudice. See United States v. Brugman, 655 F.2d at 543. The prejudice Erdman claims to have suffered allegedly arose principally from the admission of Joel Denson’s testimony. The court, however, exercising its discretion to the benefit of appellants, limited Denson’s testimony to acts occurring in or after 1983. We can assume that this evidence was admissible only against Chorman, so that a limiting instruction would have been proper, but Erdman did not move the court for such an instruction. See Fed.R.Evid. 105 (court “upon request” shall restrict evidence to its proper scope and instruct jury accordingly); see also United States v. Gilmore, 730 F.2d 550, 555 (8th Cir.1984); United States v. Regner, 677 F.2d 754, 757 (9th Cir.1982). More importantly, it is apparent from the verdicts that the jury was independently weighing the evidence against each defendant. See United States v. Porter, 821 F.2d 968, 972 (4th Cir.1987). Erdman’s showing of prejudice is inadequate; the court did not abuse its discretion in denying his motion to sever. IV Finally, appellants assign as error the district court’s failure to make factual findings on the record in connection with the fines it imposed. Section 3572(a) of title 18 provides that “[i]n determining whether to impose a fine, and the" } ]

[ { "docid": "23678179", "title": "", "text": "June 25, 1998. See Remand Determination: Union Camp Corporation v. United States (Consol. Court No. 97-03-00483) (“Remand Determination ”). The parties subsequently submitted their respective comments on the Remand Determination, and Defendant-Intervenors’ submitted a motion asking the Court to reconsider its Remand Order (“Motion To Reconsider”). For the reasons stated herein, the Court agrees with Defendant-Intervenors and finds that its Remand Order was ambiguous, in so far as Commerce interpreted the Remand Order as preventing it from considering record evidence of market prices in valuing the octanol-2 that results from the sebacic acid production process. Accordingly, the Court grants Defendant-Intervenors’ Motion To Reconsider and remands this case for further consideration consistent with this opinion. In doing so, however, the Court takes judicial notice of the fact that in its third administrative review of antidumping duties on sebacic acid from the PRC, Commerce, on the basis of a letter from the editor of the Chemical Weekly (India), reversed its previous position and found that the “octanol” quote from this publication did not refer to octanol-1. See Sebacic Acid From The People’s Republic of China; Final Results of Antidumping Duty Administrative Review, 63 Fed.Reg. 43,373, 43,374-75 (1998) (“Third Administrative Review”). Having taken judicial notice of .this fact, the Court directs Commerce to consider the letter from the editor of the Chemical Weekly (India) in choosing an .appropriate surrogate value on remand. Finally, the Court further instructs Commerce that it is to consider whether it should accept new evidence concerning the comparability of 2-ethylhexanol and octanol-2. Should Commerce come to the conclusion that it should accept such evidence, Commerce may do so and, if appropriate, use that evidence as a basis for justifying its use of the Chemical Weekly (India) value for “octanol” as a surrogate value. II BACKGROUND The relevant facts of this case are described in Union Camp Corp. v. United States, 8 F.Supp.2d 842 (CIT 1998), and familiarity with them is presumed. Only the facts relevant to the disposition of Defendant-Intervenors’ Motion To Reconsider are repeated. On March 7, 1997, Commerce issued its First Administrative Review, covering shipments of sebacic" } ]

[ { "docid": "16894024", "title": "", "text": "MEMORANDUM AND ORDER WALLACH, Judge. I INTRODUCTION This consolidated action is before the Court on two motions for judgment upon the agency record pursuant to USCIT R. 56.2. Plaintiff Union Camp Corporation (“Union Camp”) and Defendanb-Intervenors Dastech International, Incorporated, ICC Industries, Incorporated, Guangdong Chemicals Import & Export Corporation, Sino-chem International Chemicals Company, Limited, and Tianjin Chemicals Import & Export Corporation (collectively “Dastech”) challenge as unsupported by substantial evidence and not in accordance with law certain aspects of the Department of Commerce, International Trade Administration’s (“Commerce”) decision in Sebacic Acid from the People’s Republic of China; Final Results of Antidumping Duty Administrative Review, 62 Fed.Reg. 10,530 (Mar. 7, 1997) {“Final Results ”). The Court has jurisdiction under 28 U.S.C. § 1581(e) (1994). Union Camp contests five aspects of Commerce’s decision. Commerce agrees to, and DefendanWntervenors do not oppose, remand on three of Union Camp’s challenges, and the fourth is moot in view of the Court’s decision. The remaining issue is Commerce’s decision to use the Indian value of octanol-1 as the surrogate value of crude octanol-2, a subsidiary product of the sebacic acid production process. Defendant-Intervenors contest Commerce’s treatment of two sales of sebacic acid that were made through Sinochem International Chemicals Company, Ltd. (“SICC”) on behalf of Sinochem Jiangsu Import and Export Corporation (“Jiangsu”). Commerce used Jiangsu’s 243.4 percent margin to (1) assess antidumping duties for these sales and (2) establish SICC’s future cash deposit rate. For the reasons discussed below, the Court holds that Commerce’s use of the Indian value of octanol-1 for octanol-2 was unsupported by substantial evidence on the record and not in accordance with law. The Court affirms Commerce’s decision regarding the sales on behalf of Jiangsu. II BACKGROUND On July 19, 1993 Union Camp filed a petition with Commerce and the United States International Trade Commission (“ITC”) alleging that sebacic acid from the People’s Republic of China (“PRC”) was being sold at prices below fair market value to the detriment of the domestic industry. Initiation of Antidumping Duty Investigation; Sebacic Acid from the People’s Republic of China, 58 Fed.Reg. 43,339 (Aug. 16, 1993). After the" }, { "docid": "20629872", "title": "", "text": "relevance nor uniqueness is the standard for judicial notice. The applicable standard is whether the facts in the documents are not subject to reasonable dispute because they are either “generally known” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Nowhere does VASEP address this standard and explain why the information from the academic materials is not reasonably subject to dispute. VASEP has simply failed to supply “the necessary information” warranting judicial notice of the academic materials. Fed.R.Evid. 201(c). VASEP claims that the court should take judicial notice of the information in the academic materials because it “undermine[s] Commerce’s rationale and underlying assumptions.” Motion 3. But the standard for judicial notice is not whether the information sought might undermine Commerce’s rationale, but whether the information is indisputable because it is “generally known” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). VASEP’s citation to Borlem S.A.-Empreedimentos Industriais v. United States, 913 F.2d 933 (Fed.Cir.1990), does not support its position that information that undermines Commerce’s position is subject to judicial notice notwithstanding the standard embodied in Rule 201 of the Federal Rules of Evidence. In Borlem, the Court of Appeals for the Federal Circuit considered the International Trade Commission’s (“ITC”) authority to reconsider a determination pursuant to an order from the Court of International Trade. See Borlem, 913 F.2d at 940. The Court of International Trade had ordered the ITC to reconsider its affirmative threat of injury determination after taking judicial notice of Commerce’s amended final determination of sales at less than fair value of tubeless steel disc wheels from Brazil, noting: [T]his Court must take judicial notice of decisions of federal executive depart ments when requested by a party. See, Fed.R.Evid. 201; Caha v. United States, 152 U.S. 211, 221-22, 14 S.Ct. 513, 516-17, 38 L.Ed. 415 (1894); 10 Moore’s Federal Practice § 201.02(1) (2nd Ed.1988 & Supp.1989). Since plaintiff requested this Court to take judicial notice of the Second-Amended Determination by Commerce, this Court must and does take judicial notice of that determination." }, { "docid": "23678187", "title": "", "text": "reasonable surrogate value for octanol-2.”) Using Union Camp’s internal cost of crude octanol-2 (10.372 Indian rupees per kg / $0.15 per lb) as the surrogate, Commerce concluded that octanol-2 is a byproduct of the sebacic acid production process, “because the overall value of octanol-2 is insignificant relative to the value of sebacic acid and the other subsidiary products.” Remand Determination at 4. In so finding, Commerce reversed its previous conclusion that, based on the Chemical Weekly (India) value for octanol-1 of 76 Indian rupees per kg, octanol-2 should be treated as a co-product for cost accounting purposes. See First Administrative Review, 62 Fed.Reg. at 10,533-35; Sebacic Acid from the People’s Republic of China; Preliminary Results of Antidumping Duty Administrative Review (“Preliminary Results ”), 61 Fed.Reg. 46,440, 46,443 (1996). Because Commerce claimed that the language of the Court’s Remand Order inappropriately constrained its consideration of appropriate surrogate values, on July-27, 1998, Defendant-Intervenors submitted a motion asking this Court to reconsider its Remand Order. According to Defendanb-Intervenors, because either the Remand Order or Commerce’s reading of the Remand Order was “manifestly erroneous,” “[Commerce] has issued an unfair and inaccurate determination which is directly contrary to the statute, the legislative history, prior court cases and generally accepted accounting principles.” Defendant-Intervenors’ Comments On The Commerce Department’s Remand Determination And Memorandum In Support Of Motion For Reconsideration (“Reconsideration Memorandum”) at 1, 33. In response, Plaintiff asserts that Defen-danb-Intervenors’ argument that a refined octanol value can be an appropriate surrogate is untimely, that Union Camp has not manipulated its price of crude octanol-2, that Union Camp’s cost of crude octanol-2 is fair, that use of certain statements concerning the comparability of octanol-1 and octanol-2 are unreliable, and that deference to Commerce supports sustaining the Remand Determination. Plaintiff Union Camp Corporation’s Rebuttal Comments And Response In Opposition To Defendanb-Intervenors’ Motion For Reconsideration (“Plaintiffs Response”) at 3-6. Plaintiff also argues that Defendanb-Intervenors’ Motion For Reconsideration is untimely under USCIT R.59 and that Defendant-Intervenors have failed to state any substantive grounds under USCIT Rs.59 and 60 that would justify granting the Motion For Reconsideration. Id. at 7-13. For its" }, { "docid": "20629874", "title": "", "text": "The Second-Amended Determination terminated suspension of liquidation for all entries of TSDWs from Brazil by FNV. In the Second-Amended Determination Commerce indicated the reason for the suspension was its finding of de minimis dumping margins. Borlem S.A.-Empreedimentos Industriais v. United States, 13 CIT 535, 541, 718 F.Supp. 41, 46 (1989), aff'd and remanded, 913 F.2d 933 (Fed.Cir.1990). The Court of Appeals affirmed the Court of International Trade’s decision to take judicial notice of a finding in an administrative proceeding. Borlem, 913 F.2d at 940. The Court of Appeals’ decision in Borlem fits within the framework of the Rule 201(b). In Borlem, Commerce’s finding in the amended final determination was not subject to dispute because the result reached by Commerce was “on the record, having been published in the Federal Register,” and could be accurately and readily determined. Borlem, 913 F.2d at 940. While one might have contested that Commerce reached the correct result, one could not dispute that Commerce reached the result it did. The latter point is the point that was judicially noticed. Here, VASEP does not seek to have the court take notice of the fact that the academic articles were written or that the public comments were made, it wishes to have the information from those materials judicially noticed for the truth of the statements contained within for the court to consider. VASEP has failed to put forth any showing that the truth of the information from these materials is indisputable. VASEP’s argument that Commerce relied on the offered academic materials in the final results here mischaracterizes Commerce’s conduct. VASEP states that “[tjhese papers are further unique in that Commerce in issuing its final results in the underlying proceeding indirectly relied upon other aspects of the materials to support its own position. Specifically, Commerce relied upon findings and direct quotations from Certain Activated Carbon from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review, 77 Fed.Reg. 67,337 (Dep’t of Commerce Nov. 9, 2012) (“Activated Carbon”), I & D Memo at Comment 4.” Motion 3. However, as Defendant correctly points out, Commerce relied on a" }, { "docid": "20629875", "title": "", "text": "VASEP does not seek to have the court take notice of the fact that the academic articles were written or that the public comments were made, it wishes to have the information from those materials judicially noticed for the truth of the statements contained within for the court to consider. VASEP has failed to put forth any showing that the truth of the information from these materials is indisputable. VASEP’s argument that Commerce relied on the offered academic materials in the final results here mischaracterizes Commerce’s conduct. VASEP states that “[tjhese papers are further unique in that Commerce in issuing its final results in the underlying proceeding indirectly relied upon other aspects of the materials to support its own position. Specifically, Commerce relied upon findings and direct quotations from Certain Activated Carbon from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review, 77 Fed.Reg. 67,337 (Dep’t of Commerce Nov. 9, 2012) (“Activated Carbon”), I & D Memo at Comment 4.” Motion 3. However, as Defendant correctly points out, Commerce relied on a prior determination that was reached after considering similar materials, but Commerce did not rely upon those materials in reaching its determination here. See Def.’s Resp. 4. The record in Activated Carbon, not the administrative proceeding here, contained these materials. Commerce’s reliance on a finding from a prior determination did not consequently incorporate the information from the record of that proceeding to the record of the instant administrative review. Moreover, granting VASEP’s Motion in this case would run counter to a fundamental principle of administrative law, namely that “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). The purpose of judicial notice is to. promote judicial economy by dispensing with formal proof when a matter cannot be disputed. See Weinstein on Evidence § 201.02[2j. Judicial notice is not meant to circumvent the creation and review of an agency record. Therefore, the Court of Appeals has recognized, as" }, { "docid": "23678217", "title": "", "text": "judicial notice of such events and instruct the agency to reconsider its determination. Id. at 939. Such a result, the Court held, is effectively “no different from a reversal and remand for reconsideration because a fact relied on is unsupported by the evidence.” Id. at 940. Of course, unlike the situation in Borlem, in its Remand Determination Commerce did not actually rely on potentially erroneous data in its Remand Determination. It appears not to have done so, however, only because of ambiguity in the Court’s Remand Order. As made clear by both its use of the Chemical Weekly (India) value in the First Administrative Review and its statements in the Remand Determination, Commerce’s clear preference is to use this price in determining the Chinese manufacturers’ dumping margins, and to justify doing so on the basis of comparability between octanol-1 and octanol-2. Given that background, it would be inappropriate for the Court, to wait until Commerce actually used the Chemical Weekly (India) value for octanol before instructing it to consider the new evidence from the Third Administrative Review. Such a result would needlessly put off until a later day, and another remand, the question of whether the Court should take judicial notice of Commerce’s conclusions in the Third Administrative Review and order Commerce to consider the letter from the editor of the Chemical Weekly (India) in this proceeding. Where possible and proper, the Court can, should and prefers to avoid such a waste of administrative and judicial resources. See, e.g., Timken Co. v. United States, 1 F.Supp.2d 1390, 1393 (CIT 1998) (setting aside a remand order where further investigation would “unnecessarily expend limited administrative resources to conduct additional reviews”); United States v. Gordon, 11 CIT 192, 193 (1987) (denying a motion to vacate on the grounds that “[r]equests to vacate interlocutory opinions and orders in dismissed cases invite a waste of judicial resources”); EAC Engineering v. United States, 9 CIT 593, 595, 624 F.Supp. 569, 570-71 (1985) (retaining jurisdiction in a classification case on the grounds that “it would be an unnecessary waste of judicial and administrative resources to require Customs" }, { "docid": "20629878", "title": "", "text": "the administrative record before Commerce. Most importantly, VASEP has made no showing that the information at issue is not subject to reasonable dispute let alone not subject to reasonable dispute because it is generally known or because its accuracy can be-readily determined. CONCLUSION VASEP has not demonstrated that the public comments or the academic materials consideration of VASEP’s Motion, all papers and proceedings in this action, and upon due deliberation, it is hereby ORDERED that VASEP’s motion for judicial notice is denied. .VASEP provided the following citations for the offered materials attached to its Motion: 1. J. Gastwirth, R. Modarres, Q. Pan, “Some statistical aspects of the Department’s use of Cohen’s D in measuring differential pricing in Anti-Dumping cases that should be considered before it is formally adopted”, received June 19, 2014, available at http://enforcement.trade.gov/download/ dpa/diff-pricing-analysis-cmts-062014. html. (last viewed December 2, 2015). 2. Online statistics Education: A Multimedia Course of Study (http://onlinestatbook. comf). Project Leader: David M. Lane, Rice University., Chapter 19 “Effect Size”, Section 2 “Difference Between Two Means,” available at http://onlinestatbook.eom/2/ effect_size/two_means.html (last viewed December 2, 2015). 3. Robert Coe, “It’s the Effect Size, Stupid: What effect size is and why it is important,” Paper presented at the Annual Conference of British Educational Research Association, September 2002, available at http:// www.leeds.ac.uk/educol/documents/ 00002182.htm (last viewed December 2, 2015). Motion 5. . In its USCIT Rule 56.2 motion for judgment on the agency record, VASEP also argues that Commerce wrongfully rejected portions of mandatory respondent Minh .Phu Group’s case brief for containing untimely filed new factual information. See VASEP Br. 10-16. Much of the information that VASEP argues Commerce wrongfully rejected from Minh Phu Group’s case brief overlaps with the information that VASEP requests the court to take judicial notice of here. See Motion 5; Rejection of New Information in Case Brief, PD 248 at bar code 3218413-01 (July 29, 2014). Despite this common aspect of both motions, the court notes that VASEP's argument in its motion for judicial notice is separate and distinct from the argument it has made with respect to Minh- Phu Group’s case brief in its" }, { "docid": "20629880", "title": "", "text": "Rule 56.2 motion, and thus the court's decision here has no bearing on the latter. . VASEP also cites Union Camp Corp. v. United States, 23 CIT 264, 53 F.Supp.2d 1310 (1999) which is not binding on this court and, in any event, fails to support VASEP's position. ’In Union Camp, the court granted a motion to reconsider the court’s prior remand order finding that the “Remand Order was ambiguous, in so far as Commerce interpreted the Remand Order as preventing it from considering record evidence of market prices in valuing the octanol-2.” Union Camp, 23 CIT at 264, 53 F.Supp.2d at 1313. In doing so, the court took judicial notice of the fact that “in its third administrative review of antidumping duties on sebacic acid from the [People's Republic of China], Commerce, on the basis of a letter from the editor of the Chemical Weekly (India), reversed its previous position and found that the 'octanol' quote from this publication did not refer to octanol-1..” Id. at 265, 53 F.Supp.2d at 1313. Taking judicial notice of an agency’s finding in a final determination is something that cannot be disputed because it can be accurately and readily verified. That the court went on to direct the agency on remand to open the'administrative record and consider the letter from the judicially noticed determination does not support supplementing of the record before the court in this case." }, { "docid": "10114672", "title": "", "text": "revised surrogate country selection of South Africa, which was among the countries on the OP List from the same review, after consideration all data placed on the record); Jiaxing Bro. Fastener Co. v. United States, 38 CIT —, 961 F.Supp.2d 1323 (2014) (holding it reasonable for Commerce to decline to select potential surrogate country not included on the OP List); Foshan Shunde Yongjian Housewares & Hardwares Co. v. United States, 37 CIT -, 896 F.Supp.2d 1313 (2013) (holding that the India exclusion from the surrogate country list was not unreasonable in light of the fact that it had a lower GNI than the countries on Commerce's surrogate country list)). VASEP claims that Commerce mistakenly relied upon Ad Hoc Shrimp Trade Action Comm. v. United States, 38 CIT -, 986 F.Supp.2d 1362 (2014), to expand the range of economically comparable surrogate country candidates because, in that case, the weighing of economic comparability against data considerations was limited to countries on the OP List. See VASEP Comments 13. As already discussed, this argument relies on the incorrect premise that the OP List sets the limits for economic comparability. Therefore, there is no merit to VASEP's argument; that the weighing mandated by Ad Hoc Shrimp is misapplied here. . VASEP points to Commerce’s removal of Indonesia from its 2011 OP List and argues that Commerce’s stated explanation of how it updates the surrogate country list represents a finding that Indonesia does not possess sufficient data quality to remain on the OP List. See VASEP Comments 12. The 2011 OP List was not on the record of this administrative review. Only the 2011 GNI data was on the record. Therefore, arguments regarding the 2011 OP List are improper for the court to consider. . In the final determination, Commerce used a gross weight denominator because it found that normal value and U.S. price were both reported on a gross weight basis. See Final Decision Memo at 48. Commerce found that no adjustment to the denominator was necessary or warranted because the relevant basis of comparison is consistent between normal value and U.S. price. Id." }, { "docid": "23678180", "title": "", "text": "Sebacic Acid From The People’s Republic of China; Final Results of Antidumping Duty Administrative Review, 63 Fed.Reg. 43,373, 43,374-75 (1998) (“Third Administrative Review”). Having taken judicial notice of .this fact, the Court directs Commerce to consider the letter from the editor of the Chemical Weekly (India) in choosing an .appropriate surrogate value on remand. Finally, the Court further instructs Commerce that it is to consider whether it should accept new evidence concerning the comparability of 2-ethylhexanol and octanol-2. Should Commerce come to the conclusion that it should accept such evidence, Commerce may do so and, if appropriate, use that evidence as a basis for justifying its use of the Chemical Weekly (India) value for “octanol” as a surrogate value. II BACKGROUND The relevant facts of this case are described in Union Camp Corp. v. United States, 8 F.Supp.2d 842 (CIT 1998), and familiarity with them is presumed. Only the facts relevant to the disposition of Defendant-Intervenors’ Motion To Reconsider are repeated. On March 7, 1997, Commerce issued its First Administrative Review, covering shipments of sebacic acid from the PRC to the United States during the period July 13, 1994,. through June 30, 1995. First Administrative Review, 62 Fed.Reg. at 10,530. Because the PRC is a nonmarket economy, Commerce determined the “normal value” of the sebacic acid using a constructed value pursuant to 19 U.S.C. § 1677b(c)(1) (1994), which provides that, where appropriate, Commerce “shall determine the normal value of the subject merchandise on the basis of the value of the factors of production utilized in producing the merchandise.” In valuing the factors of production, Commerce is to use, where possible, “prices or costs ... in one or more market economy countries” that are at a comparable level of economic development and that are “significant producers of comparable merchandise.” 19 U.S.C. § 1677b(c)(4) (1994) For the First Administrative Review, Commerce used surrogate values from India to construct the normal value of the sebacic acid. See First Administrative Review, 62 Fed.Reg. at 10,533. In doing so, Commerce used a published price for “octanol” from the Chemical Weekly (India) to value the octanol-2" }, { "docid": "10114617", "title": "", "text": "2011 GNI data is considered. VASEP Comments ,8. These arguments are únpersuasive. Commerce chose a country from its OP List here. See Surrogate Country List, PD 22,' bar code 3042499-01 (Nov. 22, 2011). Commerce considered the relative differences in GNI of the countries on the OP List in light of 2010 and 2011 data, as the court directed. VASEP’s argument implicitly relies upon the premise that the OP List, or a step in Commerce’s analogy, sets the outer limits of economic comparability. VASEP cites no authority to support such a reading, and this reading ignores the discretion given to Commerce by the statute and Commerce’s methodology for generating the OP List. On re mand, Commerce considered the changes in GNI between 2010 and 2011, and compared the relative economic comparability of the countries on the OP List in light of those changes. Remand Results 9. VASEP suggests no reason why it is unreasonable for Commerce to consider Indonesia at a comparable level of economic development as Vietnam based upon their. 2010 and 2011 GNIs. VASEP and Binh An also argue that the GNI range of the OP List, as originally composed based upon 2010 GNI data, limits Commerce’s selection of a primary surrogate country. VASEP Comments 8; Binh An Comments 1. Yet, VASEP cites to no authority for this proposition. None of the cases VÁSEP cites support the notion that Commerce’s OP List sets the limits of economic comparability. 2. Evaluation of Whole Fish In Vinh Hoan, the court ordered Commerce to further explain why certain facts that detracted from its specificity finding do not undermine its conclusion that the superiority of IAS Data supported selecting Indonesia as the primary surrogate country. Vinh Hoan, 39 CIT at - -, 49 F.Supp.3d at 1314-15. In its Remand Results, Commerce has addressed the court’s concerns, and it has provided a reasonable explanation for why it concluded IAS Data was a superior data source for evaluating respondents’ whole live fish. Commerce found that the data is specific because' it covers pangasius hypophthal-mus, the species of pangasius fish grown by respondents. See Remand Results" }, { "docid": "20629871", "title": "", "text": "questioned.” Fed.R.Evid. 201(b). Thus, it is not appropriate for the court to take judicial notice of the public comments because VASEP has not demonstrated that they are not subject to reasonable dispute. The academic materials are also not the proper subject of judicial notice. VASEP again fails to demonstrate that the information contained within the academic materials is not subject to reasonable dispute. VASEP simply states that the materials are “[ajcademic articles on the Cohen’s d methodology that explain relevant underlying statistical principles, including an online statistics textbook published by an accredited university and an academic paper published at an educational research conference” and that “they are directly relevant to the differential pricing analysis that Commerce applied in the underlying proceeding.” Motion 1, 3. VASEP additionally states that “[tjhese papers are further unique in that Commerce in issuing its final results in the underlying proceeding indirectly relied upon other aspects of the materials to support its own position.” Id. at 3. Again, VASEP refers to these materials as “relevant” and “unique.” See id. However, neither relevance nor uniqueness is the standard for judicial notice. The applicable standard is whether the facts in the documents are not subject to reasonable dispute because they are either “generally known” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Nowhere does VASEP address this standard and explain why the information from the academic materials is not reasonably subject to dispute. VASEP has simply failed to supply “the necessary information” warranting judicial notice of the academic materials. Fed.R.Evid. 201(c). VASEP claims that the court should take judicial notice of the information in the academic materials because it “undermine[s] Commerce’s rationale and underlying assumptions.” Motion 3. But the standard for judicial notice is not whether the information sought might undermine Commerce’s rationale, but whether the information is indisputable because it is “generally known” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). VASEP’s citation to Borlem S.A.-Empreedimentos Industriais v. United States, 913 F.2d 933 (Fed.Cir.1990), does not support its position" }, { "docid": "20629868", "title": "", "text": "proceeding is fundamentally flawed. Information that is relevant and supports one’s position is not the same as information that is “not subject to reasonable dispute.” Beyond conclusory statements, VASEP fails to address the applicable standard and fails to provide support for the proposition that the public comments satisfy the requirements of Rule 201 of the Federal Rules of Evidence. VASEP asserts “[a] court may take judicial notice of information appearing on a government website.” Motion 2. VASEP relies on two eases which are not binding on this court and also fail to support VA-SEP’s position. See id. VASEP cites to Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992 (9th Cir.2010), where the Ninth Circuit, in considering a suit by employees in connection with “403(b) retirement plans,” took judicial notice of information displayed on school district websites. See Daniels-Hall, 629 F.3d at 998-99. VA-SEP also cites to Laborers’ Pension Fund v. Blackmore Sewer Constr., Inc., 298 F.3d 600 (7th Cir.2002), where the Seventh Circuit took judicial notice that one bank was a branch office of another, which was information found on an official website of the Federal Deposit Insurance Corporation. See Laborers’ Pension Fund, 298-F.3d at 607-08. VASEP therefore argues that the court should take judicial notice of the public comments because they “were provided to the Department of Commerce in response to a request for comment on differential pricing” and “are available on Commerce’s website at http://enforeement. trade.gov/download/dpa/diff-pricinganalysis-cmts-062014.html.” Motion 2. However, VASEP’s reliance on these eases reveals a misunderstanding of the standard. The fact that information appears on a government website does not make that information generally known or readily verified for accuracy and thus not subject to reasonable dispute. In Daniels-Hall, the court took judicial notice of a “list of approved 403(b) vendors” and “neither party dispute[d] the authenticity of the web sites or the accuracy of the information displayed therein.” Daniels-Hall, 629 F.3d at 998-99. In Laborers’ Pension, the court took judicial notice of the fact that one bank was a branch office of and owned by another bank, which was not subject to reasonable dispute because the" }, { "docid": "20629877", "title": "", "text": "a general rule supplementation of the administrative record is not permitted. See Axiom Res. Mgmt. v. United States, 564 F.3d 1374, 1379-80 (Fed.Cir.2009) (determining the lower court abused its discretion by admitting extra-record evidence because an administrative record “should be supplemented only if the existing record is insufficient to permit meaningful review consistent with the APA”); Murakami v. United States, 46 Fed.Cl. 731, 739 (2000), aff'd, 398 F.3d 1342 (Fed.Cir.2005) (explaining that the court is disinclined to allow judicial notice to circumvent the rule against supplementing an agency’s record on review). While there may be exceptions to that general rule, such as when effective review cannot be had without the information, see, e.g., Axiom Res. Mgmt., 564 F.3d at 1379-80 (Fed.Cir.2009); Murakami, 46 Fed.Cl. at 735, aff'd, 398 F.3d 1342 (Fed.Cir.2005), grounds for an exception do not exist here. VASEP gives the court no reason to ignore this general rule. There is no showing that the absence of these materials precludes judicial review. The court declines to consider information that was not a part of the administrative record before Commerce. Most importantly, VASEP has made no showing that the information at issue is not subject to reasonable dispute let alone not subject to reasonable dispute because it is generally known or because its accuracy can be-readily determined. CONCLUSION VASEP has not demonstrated that the public comments or the academic materials consideration of VASEP’s Motion, all papers and proceedings in this action, and upon due deliberation, it is hereby ORDERED that VASEP’s motion for judicial notice is denied. .VASEP provided the following citations for the offered materials attached to its Motion: 1. J. Gastwirth, R. Modarres, Q. Pan, “Some statistical aspects of the Department’s use of Cohen’s D in measuring differential pricing in Anti-Dumping cases that should be considered before it is formally adopted”, received June 19, 2014, available at http://enforcement.trade.gov/download/ dpa/diff-pricing-analysis-cmts-062014. html. (last viewed December 2, 2015). 2. Online statistics Education: A Multimedia Course of Study (http://onlinestatbook. comf). Project Leader: David M. Lane, Rice University., Chapter 19 “Effect Size”, Section 2 “Difference Between Two Means,” available at http://onlinestatbook.eom/2/ effect_size/two_means.html (last" }, { "docid": "20629867", "title": "", "text": "“can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). VASEP’s Motion does not address either condition precedent. VASEP fails to demonstrate that the information within the offered materials are in any way not subject to reasonable dispute as required by the rule. The public comments are not properly the subject of judicial notice. VASEP has supplied no information showing that the public comments are beyond reasonable dispute, let alone beyond reasonable dispute because they are “generally known” or capable of accurate verification “from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). VASEP’s own motion concedes that the public comments are in support of a particular position, not in any way indisputable: The public comments ... were provided to the Department of Commerce in response to a request for comment on differential pricing. See Differential Pricing Analysis; Request for Comments, 79 Fed.Reg. 26,720 (Dep’t of Commerce May, 9, 2014) .... These comments are relevant because they support Plaintiffs position that the differential pricing approach applied in the underlying proceeding is fundamentally flawed. Information that is relevant and supports one’s position is not the same as information that is “not subject to reasonable dispute.” Beyond conclusory statements, VASEP fails to address the applicable standard and fails to provide support for the proposition that the public comments satisfy the requirements of Rule 201 of the Federal Rules of Evidence. VASEP asserts “[a] court may take judicial notice of information appearing on a government website.” Motion 2. VASEP relies on two eases which are not binding on this court and also fail to support VA-SEP’s position. See id. VASEP cites to Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992 (9th Cir.2010), where the Ninth Circuit, in considering a suit by employees in connection with “403(b) retirement plans,” took judicial notice of information displayed on school district websites. See Daniels-Hall, 629 F.3d at 998-99. VA-SEP also cites to Laborers’ Pension Fund v. Blackmore Sewer Constr., Inc., 298 F.3d 600 (7th Cir.2002), where the Seventh Circuit took judicial notice that one bank was a branch office of another," }, { "docid": "23678213", "title": "", "text": "of overlapping uses and composition between octanol-1 and octanol-2 superfluous. Given the apparent contradiction, and given the likelihood that Commerce will continue to assert that the octanol price from the Chemical Weekly (India) is the best available evidence, it is appropriate for this Court to take judicial notice of the fact that Commerce, on the basis of the letter from the editor of the Chemical Weekly (India), reversed its position in the Third Administrative Review and found that the “octanol” quote did not refer to, octanol-1. See Third Administrative Review, 63 FR 43,374-75 (“Therefore, based on the above information, and absent any substantiated record evidence to the contrary, the Department determines that the octanol value from Chemical Weekly is for 2-ethyl-hexanol.”). Having taken judicial notice of that fact, the Court orders Commerce, on remand, to open the administrative record and consider the letter from the editor of the Chemical Weekly (India) in its choice of an appropriate surrogate value. While the Court notes that it is not ruling on the accuracy or significance of this new evidence, see Borlem, 913 F.2d at 940 (“[A]ll we are doing is recognizing that new data exists that the [agency] should evaluate.”), it also observes that, unless rebutted, the existence of this evidence appears to undermine Commerce’s rationale for using the Chemical Weekly (India) “octanol” value as a surrogate. Accordingly, unless Commerce is able to identify substantial record evidence on remand which demonstrates that, notwithstanding the letter from the editor of the Chemical Weekly (India), the “octanol” quote from the Chemical Weekly (India) is actually a quote for octanol-1, Commerce may not continue to argue for the use of this figure on the grounds that octanol-1 and octanol-2 are “comparable merchandise.” In arriving at this result, the Court is mindful of the considerable deference that Commerce enjoys in its administration of the antidumping laws.. Such deference, however, is not owed when credible evidence from outside the record indicates a significant error in Commerce’s determination. See, e.g., id. (upholding remand to ITC for reconsideration of its injury determination in light of its rebanee on an" }, { "docid": "20629863", "title": "", "text": "MEMORANDUM AND ORDER Kelly, Judge: This matter is before the court on a motion for judicial notice filed by Consolidated Plaintiffs Vietnam Association of Seafood Exporters and Producers and' certain, of its individual member companies (collectively “VASEP”). See generally Consolidated Pis.’ Mot. for Judicial Notice, Dec. 3, 2015, ECF No. 90 (“Motion”). In the Motion, VASEP asks that the court take judicial notice of certain information in further support of its USCIT Rule 56.2 motion for judgment on the agency record challenging the U.S. Department of Commerce’s (“Department” or “Commerce”) final determination in the eighth administrative review of the antidumping duty order covering certain frozen warmwater shrimp from the Socialist Republic of Vietnam for the period of February 1, 2012 through January 31, 2013. See generally id.; Resp’t Pis. VASEP and Individual VASEP Members’ Br. Supp. Mot. J. Agency R., Mar. 30, 2015, ECF No. 50 (‘VASEP Br.”). Specifically, VASEP asks the court to take judicial notice of the following: 1. Public comments submitted by university professors in response to a Department of Commerce request for public comments on differential pricing analysis published in the Federal Register. 2. Academic articles on the Cohen’s d methodology that explain relevant underlying statistical principles, including an online statistics textbook published by an accredited university and an academic paper published at an educational research conference. Motion l. On December 23, 2015, Defendant United States (“Defendant”) filed its response opposing VASEP’s motion for judicial notice. See generally Def.’s Resp Opp’n to Pis.’ Mot. for Judicial Notice, Dec. 23, 2015, ECF No. 96 (“Def.’s Resp.”). Defendant argues that ‘VA-SEP’s motion misapplies the principle of judicial notice, and seeks to improperly convert this Court’s examination of an agency’s action based on the contents of the administrative record into de novo review.” Id. at 1. Specifically, Defendant argues that judicial notice “is not appropriately exercised in a record-review case, such as this one,” and “[cjontrary to VA-SEP’s assertions, the materials it seeks to submit are not of the type that satisfy the standards of judicial notice.” Id. at 2-3. On February 10, 2016, the court held oral argument" }, { "docid": "23678186", "title": "", "text": "contained in Chemical Weekly (India) because this Court’s remand order specifically instructed the agency to ‘value octanol-2 based on an appropriate cost....’”). In so finding, Commerce again did not consider the U.S. prices from the Chemical Marketing Reporter (U.S.) for octanol-2 that were placed on the record by DefendanWnter-venors. Presumably, Commerce concluded that, as the value reported in the Chemical Marketing Reporter (U.S.) reflects a market price for refined octanol-2, it was precluded from considering this figure by the Court’s Remand Order. See Remand Determination at 3, 8-10. In addition, although Commerce reasserted its position that the Chemical Weekly (India) value for “octanol” is the “best available information,” it also did not identify any record evidence on remand to confirm exactly what product (octanol-1, octanol-2 or some other product) was being referenced by this figure. See Remand Determination at 6 (“[G]iven that the Chemical Weekly (India) does not specify a particular type of octanol, we believe that evidence on the record suggests that the refined octanol price listed in the Chemical Weekly (India) is a reasonable surrogate value for octanol-2.”) Using Union Camp’s internal cost of crude octanol-2 (10.372 Indian rupees per kg / $0.15 per lb) as the surrogate, Commerce concluded that octanol-2 is a byproduct of the sebacic acid production process, “because the overall value of octanol-2 is insignificant relative to the value of sebacic acid and the other subsidiary products.” Remand Determination at 4. In so finding, Commerce reversed its previous conclusion that, based on the Chemical Weekly (India) value for octanol-1 of 76 Indian rupees per kg, octanol-2 should be treated as a co-product for cost accounting purposes. See First Administrative Review, 62 Fed.Reg. at 10,533-35; Sebacic Acid from the People’s Republic of China; Preliminary Results of Antidumping Duty Administrative Review (“Preliminary Results ”), 61 Fed.Reg. 46,440, 46,443 (1996). Because Commerce claimed that the language of the Court’s Remand Order inappropriately constrained its consideration of appropriate surrogate values, on July-27, 1998, Defendant-Intervenors submitted a motion asking this Court to reconsider its Remand Order. According to Defendanb-Intervenors, because either the Remand Order or Commerce’s reading of the" }, { "docid": "16894025", "title": "", "text": "a subsidiary product of the sebacic acid production process. Defendant-Intervenors contest Commerce’s treatment of two sales of sebacic acid that were made through Sinochem International Chemicals Company, Ltd. (“SICC”) on behalf of Sinochem Jiangsu Import and Export Corporation (“Jiangsu”). Commerce used Jiangsu’s 243.4 percent margin to (1) assess antidumping duties for these sales and (2) establish SICC’s future cash deposit rate. For the reasons discussed below, the Court holds that Commerce’s use of the Indian value of octanol-1 for octanol-2 was unsupported by substantial evidence on the record and not in accordance with law. The Court affirms Commerce’s decision regarding the sales on behalf of Jiangsu. II BACKGROUND On July 19, 1993 Union Camp filed a petition with Commerce and the United States International Trade Commission (“ITC”) alleging that sebacic acid from the People’s Republic of China (“PRC”) was being sold at prices below fair market value to the detriment of the domestic industry. Initiation of Antidumping Duty Investigation; Sebacic Acid from the People’s Republic of China, 58 Fed.Reg. 43,339 (Aug. 16, 1993). After the appropriate investigations by Commerce and the ITC, it was determined that Union Camp’s allegations had merit, and Commerce issued the Antidumping Duty Order: Seba-cic Acid From the People’s Republic of China (PRC), 59 Fed.Reg. 35,909 (July 14,'1994). Union Camp and Dastech challenged the initial less than fair value determination. On August 5, 1996, this Court remanded to Commerce on the issue of the valuation of octanol-2 and upheld Commerce’s actions in all other respects. Union Camp Corp. v. United States, 941 F.Supp. 108 (CIT 1996) (“Union Camp I”). This Court instructed Commerce “to value octanol-2 based on an appropriate cost (which may be the U.S. cost) of crude octanol-2 rather than the Indian selling price for refined octanol-1.... ” Id. at 119. Commerce complied with the Court’s directions and used Union Camp’s internal cost of octanol-2 found in the petition. The Court affirmed the remand results on April 11, 1997. Union Camp Corp. v. United States, 963 F.Supp. 1212 (CIT 1997). Meanwhile, on August 16,1995, Commerce initiated an antidumping duty administrative review of sebacic acid" }, { "docid": "20629879", "title": "", "text": "viewed December 2, 2015). 3. Robert Coe, “It’s the Effect Size, Stupid: What effect size is and why it is important,” Paper presented at the Annual Conference of British Educational Research Association, September 2002, available at http:// www.leeds.ac.uk/educol/documents/ 00002182.htm (last viewed December 2, 2015). Motion 5. . In its USCIT Rule 56.2 motion for judgment on the agency record, VASEP also argues that Commerce wrongfully rejected portions of mandatory respondent Minh .Phu Group’s case brief for containing untimely filed new factual information. See VASEP Br. 10-16. Much of the information that VASEP argues Commerce wrongfully rejected from Minh Phu Group’s case brief overlaps with the information that VASEP requests the court to take judicial notice of here. See Motion 5; Rejection of New Information in Case Brief, PD 248 at bar code 3218413-01 (July 29, 2014). Despite this common aspect of both motions, the court notes that VASEP's argument in its motion for judicial notice is separate and distinct from the argument it has made with respect to Minh- Phu Group’s case brief in its Rule 56.2 motion, and thus the court's decision here has no bearing on the latter. . VASEP also cites Union Camp Corp. v. United States, 23 CIT 264, 53 F.Supp.2d 1310 (1999) which is not binding on this court and, in any event, fails to support VASEP's position. ’In Union Camp, the court granted a motion to reconsider the court’s prior remand order finding that the “Remand Order was ambiguous, in so far as Commerce interpreted the Remand Order as preventing it from considering record evidence of market prices in valuing the octanol-2.” Union Camp, 23 CIT at 264, 53 F.Supp.2d at 1313. In doing so, the court took judicial notice of the fact that “in its third administrative review of antidumping duties on sebacic acid from the [People's Republic of China], Commerce, on the basis of a letter from the editor of the Chemical Weekly (India), reversed its previous position and found that the 'octanol' quote from this publication did not refer to octanol-1..” Id. at 265, 53 F.Supp.2d at 1313. Taking judicial notice" } ]

[ { "docid": "3746272", "title": "", "text": "that the court has no power to abrogate the private fee arrangement. We reject the government’s argument. The district courts’ supervisory jurisdiction over contingent fee contracts for services rendered in cases before them is well-established. Dunn v. H. K. Porter Co., 602 F.2d 1105, 1108 (3d Cir. 1979), succinctly restates the general principles pertaining to this authority: Because contingency fee agreements are of special concern to the courts and are not to be enforced on the same basis as are ordinary commercial contracts, Spilker v. Hankin, 88 U.S.App.D.C. 206, 210, 188 F.2d 35, 39 (D.C. Cir. 1951), courts have the power to monitor such contracts either through rule-making or on an ad hoc basis. Canon 13 of the Canons of Professional Ethics, promulgated by the American Bar Association, recognizes that an attorney is free to enter into such arrangements. The Canon, however, qualifies the right with the proviso that they are subject to the “supervision of the courts, as to [their] reasonableness.” See Fitzgerald v. Freeman, 409 F.2d 427 (7th Cir.), cert. denied, 396 U.S. 875, 90 S.Ct. 151, 24 L.Ed.2d 134 (1969) (court not bound by contingent fee agreement executed in conjunction with substitution of new counsel and could, in light of Canons 13 and 34, award fees on quantum meruit basis). We indicated the source of the power in Schlesinger v. Teitelbaum, 475 F.2d 137, 141 (3d Cir.), cert. denied, 414 U.S. 1111, 94 S.Ct. 840, 38 L.Ed.2d 738 (1973), where we stated that “in its supervisory power over the members of its bar, a court has jurisdiction of certain activities of [its] members, including the charges of contingent fees.” Power flowing from this source has been exercised more frequently to protect those unable to bargain equally with their attorneys and who, as a result, are especially vulnerable to overreaching. Schlesinger v. Teitelbaum, supra, 475 F.2d at 140 (seaman); Cappel v. Adams, 434 F.2d 1278 (5th Cir. 1970) (children). However, it has also been exercised whenever a contingent fee agreement yields an unreasonable fee. In Re Michaelson, 511 F.2d 882, 888 (9th Cir.), cert. denied 421 U.S. 978," } ]

[ { "docid": "13174569", "title": "", "text": "for comparison, presided over similar trials in the past. See Allen v. United States, 606 F.2d 432, 436 (4th Cir. 1979). Ill Maddux contends that the District Judge was biased on the issue of contingent attorney’s fees and that prejudice prevented a fair determination of the fee. Judge Grady had, in the past, written and spoken on the subject of contingent fees. He was not required, however, to recuse himself merely because he holds and had expressed certain views on that general subject. See Laird v. Tatum, 409 U.S. 824, 830-36, 93 S.Ct. 7, 11-14, 34 L.Ed.2d 50 (1972) (memorandum of Rehnquist, J.). His general tenets are not so case-specific that they would predetermine his position in this particular case, even if we should assume arguendo that specific views previously expressed outside of court could disqualify a judge. We do not doubt that appellant’s fee contract and fee claim received unbiased and impartial review in the district court. IV The remaining question is whether, granting the propriety of the district court’s supervisory role, the court should have accepted the contractual fee, or could properly reduce it. Our standard of review is the traditional one: whether the district court abused its discretion by reducing the fee in this particular situation. See Hoffert v. General Motors Corp., 656 F.2d 161, 165-66 (5th Cir.1981); Cappel v. Adams, 434 F.2d 1278, 1280 (5th Cir.1970) (abuse of discretion standard for review of exercise of trial court’s power to distribute judgment fund); Garrett v. McRee, 201 F.2d 250, 254 (10th Cir.1953); cf., Coffelt v. Shell, 577 F.2d 30, 32 (8th Cir.1978) (same standard for review of exercise of trial court’s inherent supervisory powers). “The sum determined to be a reasonable attorney’s fee is within the discretion of the district court; before a reviewing court should disturb the holding there should be a clear showing that the trial judge abused his discretion.” Schlesinger v. Teitelbaum, 475 F.2d 137, 140 (3d Cir.), cert. denied, 414 U.S. 1111, 94 S.Ct. 839, 38 L.Ed.2d 737 (1973). Stated another way, the standard is one of reasonableness. See, e.g., Pocius v. Halvorsen," }, { "docid": "23530472", "title": "", "text": "power to supervise the collection of attorneys’ fees under such fee arrangements. As stated in Cappel v. Adams, “The sum determined to be a reasonable attorney’s fee is within the discretion of the district court; before a reviewing court should disturb the holding there should be a clear showing that the trial judge abused his discretion.” 434 F.2d at 1280 (citations omitted). A district court abuses its discretion when it allows a fee without carefully considering the factors set forth in DR2106(B) of the ABA Code of Professional Responsibility and elaborated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). In the circumstances of this case, we cannot conclude that the district court acted outside its discretionary power when it restricted Cochrane & Bresnahan’s fee recovery to $500,-000. In reaching its determination, the district court considered each of the factors bearing on the amount of reasonable attorney compensation and made factual findings sufficiently detailed to permit appellate review. These factual findings are fully supported by the record. Accordingly, the district court properly acted within its discretion to supervise the reasonableness of a contingency fee contract for legal services rendered on behalf of the injured minor. AFFIRMED." }, { "docid": "6431378", "title": "", "text": "power to supervise the collection of attorneys’ fees under contingent fee contracts. As has often been stated, where an attorney recovers a fund in a suit under a contract with a client providing that he shall be compensated only out of the fund he creates, the court .having jurisdiction of the subject matter of the suit has power to fix the attorney’s compensation and direct its payment out of the fund. Garrett v. McRee, 201 F.2d 250, 253 (10th Cir.1953), quoted in Cappel v. Adams, 434 F.2d 1278, 1279 (5th Cir.1970). Further, “[t]he sum determined to be a reasonable attorney’s fee is within the discretion of the district court; before a reviewing court should disturb the holding there should be a clear showing that the trial judge abused his discretion.” Cappel v. Adams, supra, at 1280. Thus, an attorney’s right to contract for a contingent fee is not completely beyond judicial control. 640 F.2d at 218 (footnote omitted). See also United States ex rel. Taxpayers Against Fraud v. General Electric, 41 F.3d 1032, 1047 (6th Cir.1994) (“an attorney’s right to contract for a contingent fee is not completely beyond judicial control.” (quoting Krause)); Kalyawongsa v. Moffett, 105 F.3d 283, 286 (6th Cir.1997) (“federal district ‘judges have broad equity power to supervise the collection of attorneys’ fees under contingent fee contracts.’ ” (quoting Krause)). In its order setting the appellants’ fees the district court applied the factors set forth in the Michigan Rules of Professional Conduct and carefully analyzed each factor in light of the information furnished by the appellants. Neither appellant supplied the court with detailed records of the time spent on the case. Ms. Brandy claimed she spent 60% of her time on the case between November 1992 and August 1993. The district court gave her the benefit of that estimate, crediting her with 865 hours. Mr. Jarrett was “confident that [he] devoted hundreds, perhaps as many as 1,000 hours, to the case.” The district court credited him with 700 hours. Despite this generous treatment of very sketchy demonstrations of hours expended, the appellants make multiple arguments that the" }, { "docid": "13174563", "title": "", "text": "other adequate reason calling upon the district court to refuse to evaluate the fee to be paid to Maddux. Counsel fees have been subjected to such oversight when the client is unable fully to protect his own interests. For example, seamen (Schlesinger v. Teitelbaum, 475 F.2d 137 (3d Cir.), cert. denied, 414 U.S. 1111, 94 S.Ct. 839, 38 L.Ed.2d 737 (1973)), parties to a class action (Dunn v. H.K. Porter Co., 602 F.2d 1105, 1109 (3d Cir.1979)), and children (Cappel v. Adams, 434 F.2d 1278, 1280 (5th Cir.1970); Wiener v. United Air Lines, 237 F.Supp. 90, 96 (S.D.Cal. 1964)), have all enjoyed the protection of federal courts from excessive fees. In ordinary circumstances, trial courts may have no reason to inquire into the terms of an attorney-client contract. But in this case there were two children, one severely injured, both deprived of their mother and in effect abandoned by their father. The children were unable to recognize actions against their interests and unable to assert their rights even if they suspected less than proper treatment. We cannot assume that counsel will necessarily protect those children’s interests that are directly in conflict with his own financial well-being. Furthermore, we cannot presume that the father here will, by protecting his own interests, protect those of his children as well; he is sufficiently in debt that apparently he has little or no real personal interest in the outcome of the case — his share may well to go to his judgment creditors. The district court’s appraisal of the amount of the fee is also justified by the court’s inherent right to supervise the members of its bar. See Schlesinger v. Teitelbaum, 475 F.2d at 141 (“The district courts’ supervisory jurisdiction over contingent fee contracts for services rendered in cases before them is well-established”). Even when the validity of the fee contract itself has not been challenged by the parties, it is within the court’s inherent power of supervision over the bar to examine the attorney’s fee for conformance with the reasonable standard of the Code of Ethics. Farmington Dowel Products Co. v. Forster" }, { "docid": "13174570", "title": "", "text": "should have accepted the contractual fee, or could properly reduce it. Our standard of review is the traditional one: whether the district court abused its discretion by reducing the fee in this particular situation. See Hoffert v. General Motors Corp., 656 F.2d 161, 165-66 (5th Cir.1981); Cappel v. Adams, 434 F.2d 1278, 1280 (5th Cir.1970) (abuse of discretion standard for review of exercise of trial court’s power to distribute judgment fund); Garrett v. McRee, 201 F.2d 250, 254 (10th Cir.1953); cf., Coffelt v. Shell, 577 F.2d 30, 32 (8th Cir.1978) (same standard for review of exercise of trial court’s inherent supervisory powers). “The sum determined to be a reasonable attorney’s fee is within the discretion of the district court; before a reviewing court should disturb the holding there should be a clear showing that the trial judge abused his discretion.” Schlesinger v. Teitelbaum, 475 F.2d 137, 140 (3d Cir.), cert. denied, 414 U.S. 1111, 94 S.Ct. 839, 38 L.Ed.2d 737 (1973). Stated another way, the standard is one of reasonableness. See, e.g., Pocius v. Halvorsen, 30 Ill.2d 73, 195 N.E.2d 137, 142 (1964); old Canons of Professional Ethics of the American Bar Association, Canon 13; Fitzgerald v. Freeman, 409 F.2d 427, 429 (7th Cir.), cert. denied, 396 U.S. 875, 90 S.Ct. 151, 24 L.Ed.2d 134 (1969). Analysis of the fee-contract’s reasonableness is not limited to the face of the contract. Dunn v. H.K. Porter Co., 602 F.2d 1105, 1110 (3d Cir. 1979)). The parties to this appeal agree, essentially, that the factors to be weighed when determining reasonableness are those set out in Carter v. Montgomery Ward and Co., 76 F.R.D. 565, 569 (E.D.1977). We accept those factors as applicable here. Maddux claims that the district court did not apply the criteria correctly. We disagree. As to the time and labor factor, counsel says that the 257 hours accounted for in the motion for fees is a skeletal number. He admits, however, that he kept no record of the time spent on the case. The district court found Maddux’s 257-hour time estimate realistic, but generous, and accepted it for purposes" }, { "docid": "6431377", "title": "", "text": "214, 219 (6th Cir.), cert. denied, 454 U.S. 836, 102 S.Ct. 140, 70 L.Ed.2d 117 (1981). Courts have broad authority to refuse to enforce contingent fee arrangements that award excessive fees. A fee can be unreasonable and subject to reduction without being so “clearly excessive” as to justify a finding of breach of ethical rules. McKenzie Const., Inc. v. Maynard, 758 F.2d 97, 100 (3rd Cir.1985). Moreover, “[w]hen a court is called on to approve .•.. [a settlement involving a minor], it must consider and then determine what constitutes fair and reasonable compensation to the attorney regardless of any agreement specifying an amount, whether contingent or otherwise.” Dean v. Holiday Inns, Inc., 860 F.2d 670, 673 (6th Cir.1988). Minors’ interests are subject to the court’s protection. Id.; Centola v. Navrude, 30 Mich.App. 30, 32-33, 186 N.W.2d 35 (1971). The court in Krause v. Rhodes, also an action under 42 U.S.C. § 1983, described the trial court’s authority to fix attorney compensation and prescribed a limited standard of review: A federal district judge has broad equity power to supervise the collection of attorneys’ fees under contingent fee contracts. As has often been stated, where an attorney recovers a fund in a suit under a contract with a client providing that he shall be compensated only out of the fund he creates, the court .having jurisdiction of the subject matter of the suit has power to fix the attorney’s compensation and direct its payment out of the fund. Garrett v. McRee, 201 F.2d 250, 253 (10th Cir.1953), quoted in Cappel v. Adams, 434 F.2d 1278, 1279 (5th Cir.1970). Further, “[t]he sum determined to be a reasonable attorney’s fee is within the discretion of the district court; before a reviewing court should disturb the holding there should be a clear showing that the trial judge abused his discretion.” Cappel v. Adams, supra, at 1280. Thus, an attorney’s right to contract for a contingent fee is not completely beyond judicial control. 640 F.2d at 218 (footnote omitted). See also United States ex rel. Taxpayers Against Fraud v. General Electric, 41 F.3d 1032, 1047 (6th" }, { "docid": "12259375", "title": "", "text": "make additional payments in the form of the pro rata distribution both relate to the administration of the bankruptcy and support jurisdiction. We find no merit to the appellants’ argument that once the plan was confirmed, the district court lost jurisdiction. Under § 8.05 of the Plan and the order of July 26, 1988 confirming the Plan, the district court retained exclusive jurisdiction to resolve controversies and disputes regarding interpretation and implementation of the Plan. In numerous appeals, we have disallowed challenges to the district court’s supervision of the Trust. See In re A.H. Robins Co., Inc., 42 F.3d 870 (4th Cir.1994); In re A.H. Robins Co., Inc., 880 F.2d 769 (4th Cir.1989); and In re A.H. Robins Co., Inc., 880 F.2d 779 (4th Cir.1989). Appellants also challenge the authority and jurisdiction of the district court to limit their fees. They are a little late with this argument because the law of this circuit has long been clear that federal district courts have inherent power and an obligation to limit attorneys’ fees to a reasonable amount. In Allen v. United States, 606 F.2d 432 (4th Cir.1979), we concluded: The district courts’ supervisory jurisdiction over contingent fee contracts for services rendered in cases before them is well-established. Dunn v. H.K. Porter Co., 602 F.2d 1105, 1108 (3d Cir.1979), succinctly restates the general principles pertaining to this authority: Because contingency fee agreements are of special concern to the courts and are not to be enforced on the same basis as are ordinary commercial contracts, Spilker v. Hankin, 88 U.S.App. D.C. 206, 210, 188 F.2d 35, 39 (D.C.Cir.1951), courts have the power to monitor such contracts either through rule-making or on an ad hoc basis. Canon 13 of the Canons of Professional Ethics, promulgated by the American Bar Association, recognizes that an attorney is free to enter into such arrangements. The Canon, however, qualifies the right with the proviso that they are subject to the “supervision of the courts, as to [their] reasonableness.” See Fitzgerald v. Freeman, 409 F.2d 427 (7th Cir.), cert. denied, 396 U.S. 875, 90 S.Ct. 151, 24 L.Ed.2d 134" }, { "docid": "3746271", "title": "", "text": "propriety of fees which it is obliged to disburse is no less in a case where numerous individual claimants act in concert without class certification. In either instance, the government has an interest in seeing that funds it owes to litigants are disbursed properly. III The government contends that the fee awards are totally invalid. It argues that, absent a common fund created by the litigation or a statute authorizing the taxation of fees against the United States, the district court had no jurisdiction to award fees. The government thinks we should vacate the awards and require payment of the full bonuses to the servicemen without deduction for fees. This would remit counsel for the plaintiffs to enforcement of their fee contracts in state courts. Federal diversity jurisdiction would be unavailable because the amount in controversy between counsel and each plaintiff is insufficient. Counsel for the plaintiffs, in response, emphasize that the district court merely enforced their contract with their clients. That, counsel argue, was a proper exercise of the court’s jurisdiction. They assert, however, that the court has no power to abrogate the private fee arrangement. We reject the government’s argument. The district courts’ supervisory jurisdiction over contingent fee contracts for services rendered in cases before them is well-established. Dunn v. H. K. Porter Co., 602 F.2d 1105, 1108 (3d Cir. 1979), succinctly restates the general principles pertaining to this authority: Because contingency fee agreements are of special concern to the courts and are not to be enforced on the same basis as are ordinary commercial contracts, Spilker v. Hankin, 88 U.S.App.D.C. 206, 210, 188 F.2d 35, 39 (D.C. Cir. 1951), courts have the power to monitor such contracts either through rule-making or on an ad hoc basis. Canon 13 of the Canons of Professional Ethics, promulgated by the American Bar Association, recognizes that an attorney is free to enter into such arrangements. The Canon, however, qualifies the right with the proviso that they are subject to the “supervision of the courts, as to [their] reasonableness.” See Fitzgerald v. Freeman, 409 F.2d 427 (7th Cir.), cert. denied, 396 U.S." }, { "docid": "7196645", "title": "", "text": "(1957) (Frankfurter, J., concurring). Courts can open their doors to the public, but they must rely on lawyers to guide the litigant through the passageways. In entrusting the litigant to the legal profession, courts recognize the possibility that a self-serving lawyer may ignore the best interests of the courts and his clients. Attentive to the demands of the public interest, courts retain supervisory power over the attorney-client relationship. Fees are central to that relationship, and contingent fee arrangements are therefore subject to the courts’ supervision. Hoffert v. General Motors Corp., 656 F.2d 161, 165 (5th Cir. 1981), cert. denied, 456 U.S. 961, 102 S.Ct. 2037, 72 L.Ed.2d 485 (1982); Allen v. United States, 606 F.2d 432, 435-36 (4th Cir.1979); Dunn v. H.K. Porter Co., Inc., 602 F.2d 1105, 1108 (3d Cir.1979); Cappel v. Adams, 434 F.2d 1278, 1280 (5th Cir.1970). See American Trial Lawyers Ass’n v. New Jersey Supreme Court, 66 N.J. 258, 330 A.2d 350 (1974) (courts may promulgate rules regulating contingent fee arrangements); accord Gair v. Peck, 6 N.Y.2d 97, 188 N.Y. S.2d 491, 160 N.E.2d 43 (1959), appeal dismissed and cert. denied, 361 U.S. 374, 80 S.Ct. 401, 4 L.Ed.2d 380 (1960); Annot., 77 A.L.R.2d 411 (1961). See also ABA Canons of Professional Ethics, Canon 13 (1908) (“A contract for a contingent fee ... should always be subject to the supervision of a court, as to its reasonableness”). The issue then is not whether we can restrict a client’s fee obligation in light of the apparent congressional intent of section 1988; rather, the issue is whether we should. While we acknowledge that ultimate authority over the legal profession is vested largely in the courts, we are nevertheless mindful of the importance of an independent and self-governing legal profession. As the Supreme Court has noted, “there is the possibility of a threat being posed to the principle of independent advocacy by having the earnings of the attorney flow from the pen of the judge before whom he argues.” F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703 (1974). We" }, { "docid": "19357692", "title": "", "text": "the charges of contingent fees”), cert. denied, 414 U.S. 1111, 94 S.Ct. 840, 38 L.Ed.2d 738 (1973); California Rules of Professional Conduct, Rule 2-107 (1975) (forbidding an attorney from entering “into an agreement for, charge or collect an illegal or unconscionable fee”); Model Code of Professional Responsibility, Canon 13 (1980) (“A contract for a contingent fee ... should always be subject to the supervision of a court, as to its reasonableness.”). That the court's attention is drawn to such unprofessional conduct by an opposing party who otherwise lacks an interest in the outcome simply does not detract from the court’s inherent authority to regulate the members of its bar. Nor does the immediate resolution of an issue arising out of this inherent authority contravene the “case or controversy” requirement of article III. As noted by the Court of Appeals for the Fifth Circuit, “[T]he cornerstone of this constitutional limitation is that a federal court should decide only those questions necessary for adjudication of the case before it.” Hoffert v. General Motors Corp., 656 F.2d 161, 165 (5th Cir.1981), cert. denied, 456 U.S. 961, 102 S.Ct. 2037, 72 L.Ed.2d 485 (1982). In the specific circumstances of the case before us, judicial ratification of the parties’ settlement agreement was essential to the proper conclusion of the case in chief. Therefore, “the district judge was necessarily confronted with passing upon the propriety of the contingency fee arrangement.” Id.; see also Cappell v. Adams, 434 F.2d 1278, 1279-80 (5th Cir.1970) (when plaintiff “properly invoked the equitable jurisdiction of the court to approve the terms of the settlement,” the “court thus had jurisdiction over both the subject matter and the parties”); cf. Brown v. Watkins Motor Lines, Inc., 596 F.2d 129, 133 (5th Cir.1979) (Thornberry, J., dissenting) (proper distribution of attorney fees is ancillary to the case in chief; “[i]t is enough that the case in chief be a case or controversy”). B Other courts, like the district court below, have treated this standing problem differently. But we cannot accept the rationale of these cases, which rests on a fiction that the “government has an" }, { "docid": "3746274", "title": "", "text": "95 S.Ct. 1979, 44 L.Ed.2d 469 (1975) (court has inherent power to examine amount charged by attorney in order to protect client from excessive fees); Farmington Dowell Products Co. v. Forster Manufacturing Co., 421 F.2d 61, 87 (1st Cir. 1969) (court has power to examine contingent fee contract in order to assure that it is not unwittingly an accessory to excessive fee). See also, Pitch ford v. Pepi, Inc., 531 F.2d 92,110-11 (3d Cir. 1975), cert. denied 426 U.S. 935, 96 S.Ct. 2649, 49 L.Ed.2d 387 (1976). See also In re Crouse, 273 F.Supp. 642, 645 (S.D.W.Va.1965), aff’d, 383 F.2d 405 (4th Cir. 1967); Garrett v. McRee, 201 F.2d 250, 253 (10th Cir. 1953). See generally F. MacKinnon, Contingent Fees for Legal Services 23-24, 44-45 (1964); ABA, Code of Professional Responsibility EC 2-19 and 20, DR 2-106. We also reject the argument advanced by counsel for the plaintiffs that a court can do no more than enforce the terms of the contingent fee contract. Associated with a court’s power to allocate part of the recovery to counsel is its obligation to limit the fee to a reasonable amount. A court abuses its discretion if it allows a fee without carefully considering the factors relevant to fair compensation. Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir. 1978); Evans v. Sheraton Park Hotel, 164 U.S.App.D.C. 86, 96-97, 503 F.2d 177, 187-88 (D.C. Cir. 1974). These factors, set forth in DR 2-106(B) of the ABA Code of Profes sional Responsibility, apply even where the fee request is based on a private fee agreement. See Kiser v. Huge, 170 U.S.App.D.C. 407, 424-25, 517 F.2d 1237, 1254-55 (1974), adopted en banc, 171 U.S.App.D.C. 1, 17, 517 F.2d 1275, 1291 (D.C. Cir. 1975); Cappel v. Adams, 434 F.2d 1278, 1279-80 (5th Cir. 1970). Indeed, the fee agreements on which counsel relied in these cases required them to seek the court’s guidance. Thus, the agreements themselves contemplated that the court would exercise its supervisory power to award no more than reasonable compensation. The record now before us contains no findings of fact from which we" }, { "docid": "6450702", "title": "", "text": "1953) — Indian tribes not allowed to enter contingent fee contracts for certain claims. In the Cappel case, supra, Judge Wisdom used this langauge at pages 1279-1280 of 434 F.2d: “ . . . Judge Murrah of the Tenth Circuit has well stated the applicable rule: where an attorney recovers a fund in a suit under a contract with a client providing that he shall be compensated only out of the fund he creates, the court having jurisdiction of the subject matter of the suit has power to fix the attorney’s compensation and direct its payment out of the fund. Garrett v. McRee, 10 Cir. 1953, 201 F.2d 250, 253. [Citing cases.] The sum determined to be a reasonable attorney’s fee is within the discretion of the district court; before a reviewing court should disturb the holding there should be a clear showing that the trial judge abused his discretion. Garrett v. McRee, 10 Cir. 1953, 201 F.2d 250, 254; Monaghan v. Hill, 9 Cir. 1944, 140 F.2d 31, 34. There is no such showing in this case. “Splawn does not dispute the validity of these principles, but contends that they are inapplicable in a case in which the attorney has a valid contract fixing his fee. The action of the district court in these circumstances, Splawn argues, interferes with the right of the attorney and his client to establish the attorney’s fee by mutual agreement, ‘without being restrained by the law.’ We cannot agree. “. . . [T] he right to contract for a contingent fee has never been thought to be unrestrained. . . . Contingent fee contracts have been especially subject to restriction when the client is a minor, largely because of the obvious possibilities of unfair advantage. Moreover, courts have refused to enforce contingent fee arrangements when the amount of the fee seemed excessive. . “ . . . Judge Murrah did not condition his holding in Garrett v. McRee, supra, upon the non-existence of an express contingent fee arrangement ; indeed, it appears to have been argued specially that the attorneys involved had valid one-third" }, { "docid": "19357691", "title": "", "text": "convinced of this result when we consider that all courts possess an inherent power to prevent unprofessional conduct by those attorneys who are practicing before them. This authority extends to any unprofessional conduct, including conduct that involves the exaction of illegal fees. See Venegas v. Skaggs, 867 F.2d 527, 532 n. 6 (9th Cir.1989) (rejecting claim that the district court was without authority to review the reasonableness of a contingent fee agreement that provided compensation exceeding § 1988 statutory award); Cooper v. Singer, 719 F.2d 1496, 1505 (10th Cir.1983) (en banc) (“[f]ees are central to the [attorney-client relationship],” over which courts retain supervisory power, “and contingent fee arrangements are therefore subject to the court's supervision”); Dunn v. H.K. Porter Co., 602 F.2d 1105, 1108 (3d Cir.1979) (“courts have the power to monitor [contingency fee agreements] either through rule making or on an ad hoc basis”); Schlesinger v. Teitelbaum, 475 F.2d 137, 141 (3d Cir.) (“in its supervisory power over the members of its bar, a court has jurisdiction of certain activities of such members, including the charges of contingent fees”), cert. denied, 414 U.S. 1111, 94 S.Ct. 840, 38 L.Ed.2d 738 (1973); California Rules of Professional Conduct, Rule 2-107 (1975) (forbidding an attorney from entering “into an agreement for, charge or collect an illegal or unconscionable fee”); Model Code of Professional Responsibility, Canon 13 (1980) (“A contract for a contingent fee ... should always be subject to the supervision of a court, as to its reasonableness.”). That the court's attention is drawn to such unprofessional conduct by an opposing party who otherwise lacks an interest in the outcome simply does not detract from the court’s inherent authority to regulate the members of its bar. Nor does the immediate resolution of an issue arising out of this inherent authority contravene the “case or controversy” requirement of article III. As noted by the Court of Appeals for the Fifth Circuit, “[T]he cornerstone of this constitutional limitation is that a federal court should decide only those questions necessary for adjudication of the case before it.” Hoffert v. General Motors Corp., 656 F.2d 161," }, { "docid": "23530470", "title": "", "text": "91 L.Ed. 1666, 1677, 1679 (1947); Tennessee Publishing Co. v. American National Bank, 299 U.S. 18, 22, 57 S.Ct. 85, 87, 81 L.Ed. 13, 15 (1936). Brown distinguished Cappel v. Adams, 434 F.2d 1278 (5th Cir. 1970), because no party to the action petitioned the district court to modify the contractual fee arrangement: where both litigants desire the same result, there can be no case or controversy within the meaning of Article III. Brown v. Watkins Motor Lines, 596 F.2d at 131 n.1. See Moore v. Charlotte-Mecklenburg Board of Education, 402 U.S. 47, 91 S.Ct. 1292, 28 L.Ed.2d 590 (1971). But where, as here and in Cappel, the plaintiff’s attorney himself invokes the court’s equitable power to approve a settlement agreement to distribute the proceeds, the court must scrutinize the reasonableness of the contingent attorneys’ fee contract which affects the net recovery to the plaintiff. See Cappel v. Adams, 434 F.2d at 1280-81. Accordingly, we conclude that the district court had jurisdiction to limit the amount of Cochrane & Bresna-han’s attorneys’ fee recovery from the settlement proceeds in favor of the Hofferts. We also reject the argument advanced by Cochrane & Bresnahan that the district court improperly reduced the amount of its fee below that provided in the contingent fee contract. The Code of Professional Responsibility of the American Bar Association imposes stringent limitations upon the ability of lawyers to contract for contingent fees. See DR2-106 and EC2-20. The drafters’ explanatory footnotes indicate that these Code provisions are based largely upon Canon 13 of the old ABA Canons of Professional Ethics. Canon 13 provided, Contingent Fees. A contract for a contingent fee, where sanctioned by law, should be reasonable under all the circumstances of the case, including the risk and uncertainty of the compensation, but should always be subject to the supervision of a court, as to its reasonableness. (Emphasis supplied.) See generally Allen v. United States, 606 F.2d 432, 435-36 (4th Cir. 1979); Bunn v. H.K. Porter Co., 602 F.2d 1105, 1108 (3d Cir. 1979); Cappel v. Adams, 434 F.2d at 1280. Moreover, the district judge has broad equity" }, { "docid": "6450701", "title": "", "text": "recovery) shall be and hereby is placed in escrow with the Clerk of Court pending resolution of the plaintiff’s counsel’s contention that he is absolutely entitled to the fee agreed to between him and his client. IT IS FURTHER ORDERED that accordingly the Petition for Compromise Settlement be and hereby is granted.” At the hearing held November 13, 1972, on the application of petitioners to use a larger percentage of the settlement for counsel fees than is permitted by the court’s tentative guidelines, petitioners produced no time records to justify the higher fee provided for in the contingent fee agreement and no facts showing the fee produced by the guidelines to be unfair have been alleged in this Pétition. It is well recognized that the court has the power to set fees in cases involving persons of presumed incapacity to look after their affairs intelligently. See McKinnon, Contingent Fees for Legal Services, pp. 23 & 44; Cappel v. Adams, 434 F.2d 1278, 1279-1280 (5th Cir. 1970); United States v. Preston, 202 F.2d 740 (9th Cir. 1953) — Indian tribes not allowed to enter contingent fee contracts for certain claims. In the Cappel case, supra, Judge Wisdom used this langauge at pages 1279-1280 of 434 F.2d: “ . . . Judge Murrah of the Tenth Circuit has well stated the applicable rule: where an attorney recovers a fund in a suit under a contract with a client providing that he shall be compensated only out of the fund he creates, the court having jurisdiction of the subject matter of the suit has power to fix the attorney’s compensation and direct its payment out of the fund. Garrett v. McRee, 10 Cir. 1953, 201 F.2d 250, 253. [Citing cases.] The sum determined to be a reasonable attorney’s fee is within the discretion of the district court; before a reviewing court should disturb the holding there should be a clear showing that the trial judge abused his discretion. Garrett v. McRee, 10 Cir. 1953, 201 F.2d 250, 254; Monaghan v. Hill, 9 Cir. 1944, 140 F.2d 31, 34. There is no such showing" }, { "docid": "12259376", "title": "", "text": "amount. In Allen v. United States, 606 F.2d 432 (4th Cir.1979), we concluded: The district courts’ supervisory jurisdiction over contingent fee contracts for services rendered in cases before them is well-established. Dunn v. H.K. Porter Co., 602 F.2d 1105, 1108 (3d Cir.1979), succinctly restates the general principles pertaining to this authority: Because contingency fee agreements are of special concern to the courts and are not to be enforced on the same basis as are ordinary commercial contracts, Spilker v. Hankin, 88 U.S.App. D.C. 206, 210, 188 F.2d 35, 39 (D.C.Cir.1951), courts have the power to monitor such contracts either through rule-making or on an ad hoc basis. Canon 13 of the Canons of Professional Ethics, promulgated by the American Bar Association, recognizes that an attorney is free to enter into such arrangements. The Canon, however, qualifies the right with the proviso that they are subject to the “supervision of the courts, as to [their] reasonableness.” See Fitzgerald v. Freeman, 409 F.2d 427 (7th Cir.), cert. denied, 396 U.S. 875, 90 S.Ct. 151, 24 L.Ed.2d 134 (1969) (court not bound by contingent fee agreement executed in conjunction with substitution of new counsel and could, in light of Canons 13 and 34, award fees on quantum meruit basis). We indicated the source of the power in Schlesinger v. Teitelbaum, 475 F.2d 137, 141 (3d Cir.), cert. denied, 414 U.S. 1111, 94 S.Ct. 840, 38 L.Ed.2d 738 (1973), where we stated that, “in its supervisory power over the members of its bar, a court has jurisdiction of certain activities of [its] members, including the charges of contingent fees.” * * H: We also reject the argument advanced by counsel for the plaintiffs that a court can do no more than enforce the terms of the contingent fee contract. Associated with the court’s power to allocate part of the recovery to counsel is its obligation to limit the fee to a reasonable amount. A court abuses its discretion if it allows a fee without carefully considering the factors relevant to fair compensation. Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir.1978). Id. at" }, { "docid": "17087151", "title": "", "text": "Code of Professional Responsibility EC 2-20 (Final Draft, July 1, 1969). Nevertheless, the right to contract for a contingent fee has never been thought to be unrestrained. Contingent fee contracts have been declared invalid when the agreement was to secure a divorce, or defend a criminal prosecution, or influence the passage of legislation. Contingent fee contracts have been especially subject to restriction when the client is a minor, largely because of the obvious possibilities of unfair advantage. Moreover, courts have refused to enforce contingent fee arrangements when the amount of the fee seemed excessive. See Recent Developments, 60 Colum.L.Rev. 242, 244-45 (1960). Indeed, Canon 13 of the old Canons of Professional Ethics of the American Bar Association recognized the right of an attorney to contract for a contingent fee, but expressly made that right “subject to the supervision of a court, as to its reasonableness.” In the well-known ease of Gair v. Peck, 1959, 6 N.Y.2d 97, 188 N.Y.S.2d 491, 160 N.E.2d 43, the Court of Appeals of New York upheld the power of the courts to establish a schedule of reasonable contingent fees. The unsuccessful plaintiffs in Gair v. Peck argued, as Splawn does here, that the court was without power to supervise contingent fee contracts because of a New York statute providing that the compensation of an attorney is governed by agreement, unrestrained by law. Moreover, Judge Murrah did not condition his holding in Garrett v. McRee, supra, upon the non-existence of an express contingent fee arrangement; indeed, it appears to have been argued specially that the attorneys involved had valid one-third contingent fee contracts. Wiener v. United Air Lines, S.D.Cal. 1964, 237 F.Supp. 90, closely parallels the instant case. In the wrongful death actions consolidated under that title, United Air Lines deposited in the court the amount of the judgments rendered against it for distribution by the court. Distributing the funds, the court allowed as a reasonable attorney's fee one-third of the total recovery received by each adult plaintiff, if the adult had executed a contract to that effect. With respect to the minors involved, however, the" }, { "docid": "17087150", "title": "", "text": "fee is within the discretion of the district court; before a reviewing court should disturb the holding there should be a clear showing that the trial judge abused his discretion. Garrett v. McRee, 10 Cir. 1953, 201 F.2d 250, 254; Monaghan v. Hill, 9 Cir. 1944, 140 F.2d 31, 34. There is no such showing in this case. Splawn does not dispute the validity of these principles, but contends that they are inapplicable in a case in which the attorney has a valid contract fixing his fee. The action of the district court in these circumstances, Splawn argues, interferes with the right of the attorney and his client to establish the attorney’s fee by mutual agreement, “without being restrained by the law.” We cannot agree. Contingent fee contracts have long been commonly accepted in the United States in civil proceedings to enforce claims. Such arrangements have been traditionally justified on the ground that they provide many litigants with the only practical means by which they can secure legal services to enforce their claims. See ABA Code of Professional Responsibility EC 2-20 (Final Draft, July 1, 1969). Nevertheless, the right to contract for a contingent fee has never been thought to be unrestrained. Contingent fee contracts have been declared invalid when the agreement was to secure a divorce, or defend a criminal prosecution, or influence the passage of legislation. Contingent fee contracts have been especially subject to restriction when the client is a minor, largely because of the obvious possibilities of unfair advantage. Moreover, courts have refused to enforce contingent fee arrangements when the amount of the fee seemed excessive. See Recent Developments, 60 Colum.L.Rev. 242, 244-45 (1960). Indeed, Canon 13 of the old Canons of Professional Ethics of the American Bar Association recognized the right of an attorney to contract for a contingent fee, but expressly made that right “subject to the supervision of a court, as to its reasonableness.” In the well-known ease of Gair v. Peck, 1959, 6 N.Y.2d 97, 188 N.Y.S.2d 491, 160 N.E.2d 43, the Court of Appeals of New York upheld the power of the" }, { "docid": "23530471", "title": "", "text": "settlement proceeds in favor of the Hofferts. We also reject the argument advanced by Cochrane & Bresnahan that the district court improperly reduced the amount of its fee below that provided in the contingent fee contract. The Code of Professional Responsibility of the American Bar Association imposes stringent limitations upon the ability of lawyers to contract for contingent fees. See DR2-106 and EC2-20. The drafters’ explanatory footnotes indicate that these Code provisions are based largely upon Canon 13 of the old ABA Canons of Professional Ethics. Canon 13 provided, Contingent Fees. A contract for a contingent fee, where sanctioned by law, should be reasonable under all the circumstances of the case, including the risk and uncertainty of the compensation, but should always be subject to the supervision of a court, as to its reasonableness. (Emphasis supplied.) See generally Allen v. United States, 606 F.2d 432, 435-36 (4th Cir. 1979); Bunn v. H.K. Porter Co., 602 F.2d 1105, 1108 (3d Cir. 1979); Cappel v. Adams, 434 F.2d at 1280. Moreover, the district judge has broad equity power to supervise the collection of attorneys’ fees under such fee arrangements. As stated in Cappel v. Adams, “The sum determined to be a reasonable attorney’s fee is within the discretion of the district court; before a reviewing court should disturb the holding there should be a clear showing that the trial judge abused his discretion.” 434 F.2d at 1280 (citations omitted). A district court abuses its discretion when it allows a fee without carefully considering the factors set forth in DR2106(B) of the ABA Code of Professional Responsibility and elaborated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). In the circumstances of this case, we cannot conclude that the district court acted outside its discretionary power when it restricted Cochrane & Bresnahan’s fee recovery to $500,-000. In reaching its determination, the district court considered each of the factors bearing on the amount of reasonable attorney compensation and made factual findings sufficiently detailed to permit appellate review. These factual findings are fully supported by the record. Accordingly, the district" }, { "docid": "3746273", "title": "", "text": "875, 90 S.Ct. 151, 24 L.Ed.2d 134 (1969) (court not bound by contingent fee agreement executed in conjunction with substitution of new counsel and could, in light of Canons 13 and 34, award fees on quantum meruit basis). We indicated the source of the power in Schlesinger v. Teitelbaum, 475 F.2d 137, 141 (3d Cir.), cert. denied, 414 U.S. 1111, 94 S.Ct. 840, 38 L.Ed.2d 738 (1973), where we stated that “in its supervisory power over the members of its bar, a court has jurisdiction of certain activities of [its] members, including the charges of contingent fees.” Power flowing from this source has been exercised more frequently to protect those unable to bargain equally with their attorneys and who, as a result, are especially vulnerable to overreaching. Schlesinger v. Teitelbaum, supra, 475 F.2d at 140 (seaman); Cappel v. Adams, 434 F.2d 1278 (5th Cir. 1970) (children). However, it has also been exercised whenever a contingent fee agreement yields an unreasonable fee. In Re Michaelson, 511 F.2d 882, 888 (9th Cir.), cert. denied 421 U.S. 978, 95 S.Ct. 1979, 44 L.Ed.2d 469 (1975) (court has inherent power to examine amount charged by attorney in order to protect client from excessive fees); Farmington Dowell Products Co. v. Forster Manufacturing Co., 421 F.2d 61, 87 (1st Cir. 1969) (court has power to examine contingent fee contract in order to assure that it is not unwittingly an accessory to excessive fee). See also, Pitch ford v. Pepi, Inc., 531 F.2d 92,110-11 (3d Cir. 1975), cert. denied 426 U.S. 935, 96 S.Ct. 2649, 49 L.Ed.2d 387 (1976). See also In re Crouse, 273 F.Supp. 642, 645 (S.D.W.Va.1965), aff’d, 383 F.2d 405 (4th Cir. 1967); Garrett v. McRee, 201 F.2d 250, 253 (10th Cir. 1953). See generally F. MacKinnon, Contingent Fees for Legal Services 23-24, 44-45 (1964); ABA, Code of Professional Responsibility EC 2-19 and 20, DR 2-106. We also reject the argument advanced by counsel for the plaintiffs that a court can do no more than enforce the terms of the contingent fee contract. Associated with a court’s power to allocate part of the recovery" } ]

[ { "docid": "22958765", "title": "", "text": "tell Congress. As the matter stands, Congress has not assimilated to quiet title actions all other suits challenging the Government’s ownership of property. And so when a plaintiff like Patchak brings a suit like this one, it falls within the APA’s general waiver of sovereign immunity. I—l 1—1 )—I We finally consider the Band’s and the Government’s alternative argument that Patchak cannot bring this action because he lacks prudential standing. This Court has long held that a person suing under the APA must satisfy not only Article Ill’s standing requirements, but an additional test: The interest he asserts must be “arguably within the zone of interests to be protected or regulated by the statute” that he says was violated. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 153 (1970). Here, Patchak asserts that in taking title to the Bradley Property, the Secretary exceeded her authority under § 465, which authorizes the acquisition of property “for the purpose of providing land for Indians.” And he alleges that this statutory violation will cause him economic, environmental, and aesthetic harm as a nearby property owner. See supra, at 213. The Government and Band argue that the relationship between § 465 and Patchak’s asserted interests is insufficient. That is so, they contend, because the statute focuses on land acquisition, whereas Patchak’s interests relate to the land’s use as a casino. See Brief for Tribal Petitioner 46 (“The Secretary’s decision to put land into trust does not turn on any particular use of the land, gaming or otherwise[,] . . . [and] thus has no impact on [Patchak] or his asserted interests”); Brief for Federal Parties 34 (“[L]and may be taken into trust for a host of purposes that have nothing at all to do with gaming”). We find this argument unpersuasive. The prudential standing test Patchak must meet “is not meant to be especially demanding.” Clarke v. Securities Industry Assn., 479 U. S. 388, 399 (1987). We apply the test in keeping with Congress’s “evident intent” when enacting the APA “to make agency action presumptively reviewable.” Ibid. We do" } ]

[ { "docid": "22959662", "title": "", "text": "looks to Section 10(a) of the Administrative Procedure Act (“APA”), which provides that any “person ... adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. Under the APA, a “ ‘person’ includes an individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U.S.C. § 551(2). Interpreting the APA, the Supreme Court in Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), held that anyone “arguably within the zone of interests” protected by the statute under which he or she has asserted injury has standing to bring suit under that statute. The Court has instructed that the “zone of interests” test is to be construed generously, stating that the “test is not meant to be especially demanding,” and that a court should deny standing under the “zone of interest” test only “if the plaintiffs interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Secs. Indus. Ass’n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987); see also Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1059 (9th Cir.2004); Ocean Advocates v. U.S. Army Corps of Eng’rs, 361 F.3d 1108, 1120-21 (9th Cir.2004). Specifically, “there need be no indication of congressional purpose to benefit the would-be plaintiff.” Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1004 (9th Cir.1998) (citing Clarke, 479 U.S. at 399-400, 107 S.Ct. 750). As a municipal corporation, Sausalito qualifies as a “person” under Section 10(a) of the APA. To determine whether Sausalito is within the zone of interests of the statutes under which it brings suit, we look “to the substantive provisions of the [statutes], the alleged violations of which serve as the gravamen of the complaint.” Bennett v. Spear, 520 U.S. 154, 175, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). We are instructed by Clarke to understand these substantive" }, { "docid": "18320261", "title": "", "text": "(1978), which is likely to be readdressed if Plaintiffs prevail on the merits. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 262, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). The Plaintiff class members in the case sub judice have met this constitutional requisite for standing; their injury-in-fact consists of their continued, allegedly illegal, incarceration pending resolution of their political asylum claims. The second element of the standing test is mandated by the APA. A person who is “adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof” under Section 10(a) of the APA. 5 U.S.C. § 702. A plaintiff satisfies the APA’s standing requirement if his interests are arguably within the zone of interests that the statute in question was intended to protect or regulate. Association of Data Processing Service Organization, Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). The “relevant statute” is the agency’s enabling act or other legislation under which the zone of interests is purported to exist. 5 B. Mezines, J. Stein & J. Gruff, Administrative Law § 50.03, at 50-25 (1980). The Court believes that the “relevant statute” in the case at bar is Section 212(d)(5) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(d)(5); the statute which the agency’s new policy authoritatively interprets. State of Florida v. Weinberger, 492 F.2d 488, 494 (5th Cir. 1974). Although the statute speaks in terms of parole “for emergent reasons or for reasons deemed strictly in the public interest”, parole has been characterized by the Supreme Court as a “device through which needless confinement is avoided while administrative proceedings are conducted.” Leng May Ma v. Barber, 357 U.S. 185, 190, 78 S.Ct. 1072, 1075, 2 L.Ed.2d 1246 (1958). Viewed from the latter perspective, the interests Plaintiffs seek to advance, to wit, freedom pending resolution of their asylum claims, are arguably within the zone of interests sought to" }, { "docid": "18320260", "title": "", "text": "on the merits. 13 Wright & Miller, Federal Practice and Procedure § 3534 at 314 (1976). (Footnotes omitted). For these reasons, the Court believes this case is justiciable notwithstanding the Supreme Court’s admonition in Mathews v. Diaz, supra. 3. STANDING The “three-part test [for standing to contest the validity of agency actions] established in Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) and Association of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ... is: (1) the challenged action must result in injury-in-fact to the plaintiffs; (2) the interest invaded must be arguably within the zone of interest to be protected by the statute; and (3) there must be no statutory prohibitive of judicial services.” Suntex Dairy v. Bergland, 591 F.2d 1063, 1066 (5th Cir. 1979). The injury-in-fact element of the standing test requires Plaintiffs to demonstrate a sufficiently direct and concrete injury. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), which is likely to be readdressed if Plaintiffs prevail on the merits. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 262, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). The Plaintiff class members in the case sub judice have met this constitutional requisite for standing; their injury-in-fact consists of their continued, allegedly illegal, incarceration pending resolution of their political asylum claims. The second element of the standing test is mandated by the APA. A person who is “adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof” under Section 10(a) of the APA. 5 U.S.C. § 702. A plaintiff satisfies the APA’s standing requirement if his interests are arguably within the zone of interests that the statute in question was intended to protect or regulate. Association of Data Processing Service Organization, Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827," }, { "docid": "11913539", "title": "", "text": "cannot escape review simply because it encompasses a large number of disciplines. In short, plaintiff has amply demonstrated that its members are direct and current competitors of the aliens benefited by the 2008 Rule. See Mendoza, 754 F.3d at 1013. Plaintiff therefore has standing to sue. II. ZONE OF INTERESTS Defendant argues that plaintiff “cannot establish that it falls within the zone of interest of the statutory provision that forms the crux of its complaint.” (Def.’s Mem. of Law on the Lack of Zone-of-Interest Standing [ECF No. 22] (“Def.’s ZOI Mem.”) at 1.) Defendant contends that “the F-l statute’s text ... does not indicate that Congress was concerned with protecting the domestic labor market in providing for a foreign student program” and that plaintiff cannot “rely[] on the general labor protections under the H-1B nonimmigrant category” to prove that its complaint is proper. (Id. at 5, 8.) To bring suit under the APA, “[t]he interest [plaintiff] asserts must be ‘arguably within the zone of interests to be protected or regulated by the statute’ that he says was violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, — U.S.-, 132 S.Ct. 2199, 2210, 183 L.Ed.2d 211 (2012) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). To make this determination, the Court must “apply traditional principles of statutory interpretation” to assess “whether [plaintiff] has a cause of action under the statute.” Lexmark Int'l, Inc. v. Static Control Components, Inc., — U.S.-, 134 S.Ct. 1377, 1387-88, 188 L.Ed.2d 392 (2014). The zone-of-interests test “is not meant to be especially demanding.” Patchak, 132 S.Ct. at 2210 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987)). “The test forecloses suit only when a plaintiffs ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’ ” Id. (quoting Clarke, 479 U.S. at 399, 107 S.Ct. 750). Broadly stated, plaintiff is asserting that defendant used the F-l nonimmi-grant category" }, { "docid": "15903782", "title": "", "text": "of Mary Ellen Hombs, Analyst for National Coalition for the Homeless. In their declarations in this case, several organizations specifically averred that when they sought to purchase single-family houses at some type of discount, HUD field offices told them HUD was forbidden from selling the houses under any circumstances other than sale to the highest bidder. See Declaration of Rev. Jim Dickerson, Director of MANNA; Declaration of Rodman McCoy. In one instance, the Washington field office allegedly told area housing providers that it would accept bids for a block of properties on a preferential basis, the organizations submitted bids, and the field office rescinded the sale on orders from the national office. Declaration of Rev. Jim Dickerson. II. STANDING A. The National Housing Act The Court previously held that plaintiffs had standing to maintain their National Housing Act claim. Lee v. Pierce, 698 F.Supp. at 336-37. Defendant does not contest the Court’s holding that plaintiffs meet the case and controversy requirement. Instead, he argues that the prudential “zone-of-interest” test is not satisfied. In defendant’s view, plaintiffs do not have standing to maintain this action because the interest they seek to protect does not fall within the zone of interests protected by the National Housing Act. The Administrative Procedure Act (“APA”) grants standing to those “aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. Even if the plaintiffs are injured by agency action, the Supreme Court considers “whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute.” Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). In Clarke v. Securities Industry Association, 479 U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987), the Supreme Court revisited the elements of the zone of interest test. The Court noted that the phrase “a relevant statute” should be interpreted “broadly.” Id. at 399, 107 S.Ct. at 757. The Court also recognized that agency action is presumptively reviewable, and thus only “those would-be" }, { "docid": "86851", "title": "", "text": "to be protected by NEPA and NHPA Purely economic interests do not fall within the zone of interests to be protected by NEPA or NHPA. Western Radio Services Co. v. Espy, 79 F.3d 896, 902-03 (9th Cir.) (“NEPA’s purpose is to protect the environment, not the economic interests of those adversely affected by agency decisions.”) (quotations omitted), cert. denied, — U.S. -, 117 S.Ct. 80, 136 L.Ed.2d 38 (1996). The APA, 5 U.S.C. § 702, grants federal court standing to any “person suffering-legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” The Supreme Court has interpreted this to require that the “interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). “To find that the [plaintiffs interests] do not fall inside the ‘zone of interests’ protected by NEPA, we would have to find that (1) the [plaintiffs] interests are inconsistent with the purposes of NEPA, and that (2) the interests are so inconsistent that it would be unreasonable to assume that Congress intended to permit the suit.” Douglas County v. Babbitt, 48 F.3d 1495, 1500 (9th Cir.1995), cert. denied, 516 U.S. 1042, 116 S.Ct. 698, 133 L.Ed.2d 655 (1996). The Club urges that its interests at stake are not merely economic but include such other interests as the preservation of their historic building and its surrounding environment, and that these interests fall within the zone of interests of environmental quality and historic preservation sought to be protected by the statutes. Because the zone of interests test is “not a demanding one,” Chief Probation Officers of Cal. v. Shalala, 118 F.3d 1327, 1331 n. 2 (9th Cir.1997), and the asserted interest need only be “arguably within the zone of interests to be protected or regulated by the statute,” Data Processing, 397 U.S. at 153, 90 S.Ct. 827 (emphasis added), a rough" }, { "docid": "5421061", "title": "", "text": "appeal, we too need only address the first issue. II. The Administrative Procedure Act (APA) provides that “[a] person suffering legal wrong, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C.A. § 702 (West 1996). The Supreme Court, however, has concluded that the APA in fact provides more limited rights than the statutory language might suggest. In accordance with its prudential standing rules, the Court has held that the APA permits a party to challenge agency action in court only if “the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute ... in question.\"Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) (interpreting 5 U.S.C. § 702). For a number of years the Supreme Court did not further explain how this “zone of interests” test was to be applied. In the interim, we and other courts concluded that “the zone test rests on the need to secure the benefits of a statutory program for the groups that Congress intended to benefit.” Leaf Tobacco Exporters Ass’n v. Block, 749 F.2d 1106, 1111 (4th Cir.1984) (emphasis added); see also Moses v. Banco Mortgage Co., 778 F.2d 267, 270 (5th Cir.1985)(“[a] party will fall within the zone of interests if he is a member of a class of persons who was intended to be benefited by the statute or regulation”); Alschuler v. Department of Housing and Urban Development, 686 F.2d 472, 480 (7th Cir.1982) (denying standing to nonresidents where relevant statutory provision was “designed solely for the protection of residents”); Constructores Civiles De Centroamerica v. Hannah, 459 F.2d 1183, 1189 (D.C.Cir.1972) (“the challenging party need only show that it is an intended beneficiary of the statute not necessarily the primary one”). Thus, we held in Leaf Tobacco that a tobacco exporters association did not assert an interest within the zone that Congress intended to protect in the Commodity Credit Corporation Charter Act, 15 U.S.C.A. §§" }, { "docid": "21052369", "title": "", "text": "is no indication that resolving this case would require, or even be assisted by the participation of individual members of Public Citizen. E. Statutory Standing Under the APA In addition to constitutional standing, a petitioner who: brings a statutory enforcement action under the [APA] must meet its statutory requirements for standing. [A petitioner] must establish (1) that there has been final agency action adversely affectingfit], and (2) that, as a result, it suffers legal wrong or that its injury falls within the “zone of interests” of the statutory provision the [petitioner] claims was violated. Churchill County, 150 F.3d at 1078 (quoting Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871, 882-83, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)) (internal citations omitted), as amended, 158 F.3d 491 (9th Cir.1998). Public Citizen satisfies the first requirement. Though the regulations at issue are styled as “Interim Final Rule[s],” see, e.g., Application Rule, 67 Fed.Reg. at 12,702, the term “interim” refers “only to the Rule’s intended duration — not its tentative nature,” Career Coll. Ass’n v. Riley, 74 F.3d 1265, 1268-69 (D.C.Cir.1996) (“Any other construction would suggest that the ... publication [of the rule] was without legal significance at all (a senseless repetition of the notice of proposed rulemak-ing).”). As for the second prong, we have held that the APA “require[s] that the ‘interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’” Presidio Golf Club v. Nat'l Park Serv., 155 F.3d 1153, 1158 (9th Cir.1998) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). As might be expected, “ ,‘NEPA’s purpose is to protect the environment, not the economic interests of those adversely affected by agency decisions.’ ” Id. (quoting W. Radio Servs. Co. v. Espy, 79 F.3d 896, 902-03 (9th Cir.1996)). Here, Public Citizen is attempting to protect the environment. Indeed, many of the Petitioners and Petitioners-Intervenors in this case are environmental organizations, or general public interest organizations like Public Citizen that “fight[" }, { "docid": "20145100", "title": "", "text": "no doubt that Patehak satisfied the standing requirements derived from Article III of the Constitution. Neither the Secretary nor the Band argues otherwise. In terms of Article III standing, the impact of the Band’s facility on Patchak’s way of life constituted an injury-in-fact fairly traceable to the Secretary’s fee-to-trust decision, an injury the court could redress with an injunction that would in effect prevent the Band from conducting gaming on the property. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). We believe, contrary to the district court, that Patehak also fulfilled the judicially created zone-of-interests test for standing. The test began as a “gloss” on § 702 of the Administrative Procedure Act, 5 U.S.C. § 702. Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 395-96, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). Section 702 allows judicial review of agency action by a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” As the Supreme Court formulated the test in Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), the “adversely affected or aggrieved” plaintiff must be trying to protect an interest of his that is “arguably within the zone of interests to be protected” by the “relevant” statutory' provisions. See Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 492, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998). The Supreme Court introduced the zone-of-interests test in recognition of the “trend ... toward enlargement of the class of people who may protest administrative action.” Data Processing, 397 U.S. at 154, 90 S.Ct. 827. The APA had “pared back traditional prudential limitations.” FAIC Sec., Inc. v. United States, 768 F.2d 352, 357 (D.C.Cir.1985). Given the APA’s “generous review provisions,” Bennett v. Spear, 520 U.S. 154, 163, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal quotation marks omitted), and the “drive for enlarging the category of aggrieved ‘persons,’ ” Data Processing, 397 U.S. at 154, 90" }, { "docid": "22483065", "title": "", "text": "state has grounds to argue that the executive action is contrary to federal statutory or constitutional law\" (emphasis added) ). The court concludes, therefore, that the State Plaintiffs lack standing to assert their notice and information-use policy claims. D. Whether State Plaintiffs Have Cause of Action under the APA Lastly, Defendants assert that neither MRNY's nor the State Plaintiffs' claims are justiciable because those Plaintiffs do not assert interests that are \"arguably within the zone of interests ... protected or regulated by the statute ... in question.\" (Defs. Mem. at 21 (quoting Clarke v. Secs. Indus. Ass'n, 479 U.S. 388, 395, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987) (first alteration added) ).) To bring suit under the APA, a plaintiff \"must satisfy not only Article Ill's standing requirements, but an additional test: [t]he interest he asserts must be 'arguably within the zone of interests to be protected or regulated by the statute' that he says was violated.\" Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012) (\" Match-E-Be-Nash\") (quoting Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ). This test \"is not meant to be especially demanding' \" and \"forecloses suit only when a plaintiff's 'interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.' \" Id. (quoting Secs. Indus. Ass'n, 479 U.S. at 399, 107 S.Ct. 750 ). Critically, for the court's current purposes, whether MRNY and the State Plaintiffs assert interests falling within the \"zone of interests\" protected by the APA is not a question of \"jurisdiction\" or \"justiciability.\" As the Supreme Court has explained, the question of whether a plaintiff falls within the zone of interests protected by a statute is not properly classed as an issue of \"prudential standing,\" but is instead an issue of \"whether a legislatively conferred cause of action encompasses a particular plaintiff's claim.\" Lexmark Int'l, 134 S.Ct. at 1387. That issue \"goes not" }, { "docid": "19337437", "title": "", "text": "and § 701(a)(2) do not apply here to foreclose judicial review of the federal defendants’ actions. C. Section 702-Zone of Interest Test Section 702 of the APA states that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. The Supreme Court has interpreted § 702 “to impose a prudential standing requirement in addition to the requirement, imposed by Article III of the Constitution, that a plaintiff have suffered a sufficient injury in fact.” National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479, 488, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998)(“National Credit Union”). To demonstrate standing under the APA, a plaintiff “must ... show that the interests it seeks to protect are ‘arguably within the zone of interests to be protected’ by the statute in question.” Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 445 (9th Cir.1994) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)(“Daia Processing ”)). The Court has indicated that there is no “clear rule for determining when a plaintiff’ falls within the zone of interests to be protected by a statute. “[I]n applying the ... test ... we first discern the interests ‘arguably ... to be protected’ by the statutory provision at issue; we then inquire whether the plaintiffs interests affected by the agency action in question are among them.” National Credit Union, 522 U.S. at 488, 492,118 S.Ct. 927. However, “[t]he test is not meant to be especially demand ing; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff.” Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399-400, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). Rather, “APA plaintiffs need only show that their interests fall within the ‘general policy’ of the underlying statute, such that interpretations of the statute’s provisions or scope could directly affect them.” Graham, 149 F.3d at 1004. The plaintiffs’ interests here are not" }, { "docid": "20302007", "title": "", "text": "F.3d 1005 (D.C.Cir.2013). I take this .opportunity to respond. First, it should be noted that the term “prudential standing” is a misnomer — at least in the context of whether a plaintiff (or petitioner) in an APA cause of action is within the “zone of interests” of the relevant substantive statute. There are other kinds of standing issues, like third-party standing, that do spring from concepts of jurisdictional prudence. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985). But as the Supreme Court has recognized, what is involved in the zone-of-interest analysis is more properly described as “statutory standing.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 92, 97, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). That characterization is sensible because this test — unlike other prudential standing inquiries — is a gloss on the APA’s right of review for “[a] person ... adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. See Air Courier Conference of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 523-24, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991) (“[T]he plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him), falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)) (internal quotation marks omitted)); Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153-54, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) (connecting the zone-of-interests concept to the specific language of the APA). This particular type of prudential standing is thus typically tied to at least two statutes — the organic statute underlying a complaint and the APA itself. The question of whether a plaintiff has statutory standing therefore depends on Congressional intent — does Congress intend that this particular class of persons have a right to sue under this substantive statute? In that respect," }, { "docid": "20877655", "title": "", "text": "come within the “zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Valley Forge, 454 U.S. at 475, 102 S.Ct. 752 (quoting Ass’n of Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). Finally, a plaintiff “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Id. at 474, 102 S.Ct. 752 (quoting Warth, 422 U.S. at 499, 95 S.Ct. 2197). 3.- Standing Under the Administrative Procedure Act The APA provides that a “person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. This right of judicial review extends to agency actions “for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. To demonstrate standing under the APA, the plaintiff must show that it has suffered or will suffer a sufficient injury in fact. Nat’l Credit Union Admin, v. First Nat’l Bank & Trust Co., 522 U.S. 479, 488, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998). The plaintiff must also demonstrate prudential standing under the APA, which requires showing that “the interest sought to be protected by the complainant [is] arguably within the zone of interests to be protected or regulated by the statute ... in question.” Id. (quoting Data Processing, 397 U.S. at 152, 90 S.Ct. 827). For this prudential standing inquiry, it is not necessary for a court to ask “whether there has been a congressional intent to benefit the would-be plaintiff.” Nat’l Credit Union Admin., 522 U.S. at 488-89, 118 S.Ct. 927. Rather, if the plaintiffs interests are “arguably within the ‘zone of interests’ to be protected by a statute,” the prudential showing requirement is satisfied. Id. at 492, 118 S.Ct. 927. This requisite showing is not made, however, if the plaintiffs interests are “so marginally related to or inconsistent with the purposes implicit in the statute that" }, { "docid": "23559391", "title": "", "text": "input, neither the NLAA nor any of its members commented on the proposed plan. In 1986, the Service adopted the final LRMP, which contains substantially the same standards and guidelines for grazing as the proposed plan. The NLAA members are now dissatisfied with the LRMP because they believe that its implementation will result in a drastic decrease in grazing levels in the Toiyabe Forest. After exhausting its administrative appeals, NLAA filed suit in district court. The district court ordered a limited remand to the Service, and then granted the Service’s motion for summary judgment. NLAA appeals from this order. The National Wildlife Federation and several other environmental organizations have intervened in support of the Service. DISCUSSION I. Standing under NEPA A. Standard of Review We review the issue of standing de novo. Ellis v. City of La Mesa, 990 F.2d 1518, 1523 (9th Cir.1993). B. Discussion The Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq., provides that a plaintiff seeking to challenge an agency action must be “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702 (1988)! Thus, in addition to constitutional standing requirements, under the APA a plaintiff must assert an interest “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). The purpose of the “zone of interests” test is “to exclude those plaintiffs whose suits are more likely to frustrate than to further statutory objectives.” Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 397 n. 12, 107 S.Ct. 750, 756 n. 12, 93 L.Ed.2d 757 (1987). Accordingly, in order to challenge the LRMP under NEPA, NLAA must allege that its injury is within the zone of interests protected by NEPA. NEPA was enacted in order “to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” 42 U.S.C. § 4321 (1988). The purpose of NEPA" }, { "docid": "86850", "title": "", "text": "S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997). In addition to the constitutional standing limitations, the courts have erected prudential barriers, “such as the general prohibition on a litigant’s raising another person’s legal rights, ... and the requirement that a plaintiffs complaint fall within the-zone of interests protected by the law invoked.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The Park Service contends (A) that the Club lacks standing because any future injury to the club would be a purely economic competitive injury which is not within the zone of interests to be protected by NEPA or NHPA; (B) that the Club lacks standing in its representative capacity based on injury to its members; and (C) that any future injury would be “self-inflicted,” as well as “conjectural and speculative,” and therefore not fairly traceable to the actions of the defendant. A. Zone of interests The Park Service characterizes the Club’s claim as one solely for an alleged “competitive injury” to purely economic interests outside the zone of interests sought to be protected by NEPA and NHPA Purely economic interests do not fall within the zone of interests to be protected by NEPA or NHPA. Western Radio Services Co. v. Espy, 79 F.3d 896, 902-03 (9th Cir.) (“NEPA’s purpose is to protect the environment, not the economic interests of those adversely affected by agency decisions.”) (quotations omitted), cert. denied, — U.S. -, 117 S.Ct. 80, 136 L.Ed.2d 38 (1996). The APA, 5 U.S.C. § 702, grants federal court standing to any “person suffering-legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” The Supreme Court has interpreted this to require that the “interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). “To find that the [plaintiffs interests] do not fall inside the ‘zone of interests’" }, { "docid": "7072852", "title": "", "text": "to be protected or regulated by the statute or constitutional guarantee” on which the claim is based. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). Defendants did not assert in district court or on appeal that Chem Service lacked injury in fact. There is no disagreement that the plaintiff alleges injury in fact, which is required by the constitutional limitation on federal court jurisdiction to actual eases or controversies. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37, 96 S.Ct. 1917, 1923, 48 L.Ed.2d 450 (1976). This leads us to consider whether Chem Service satisfies the prudential rules of standing, which consideration involves a determination of whether Chem Service meets the zone of interests requirement. The APA provides that: [a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. 5 U.S.C. § 702. To gain standing under this provision, Chem Service must identify some final agency action that affects it; it is judicial review “thereof’ to which Chem Service is entitled. Lujan v. National Wildlife Federation, 497 U.S. 871, 882, 110 S.Ct. 3177, 3185, 111 L.Ed.2d 695 (1990). ‘\"When ... review is sought not pursuant to specific authorization in the substantive statute, but only under the general provisions of the APA, the ‘agency action’ in question must be ‘final agency action.’ ” Id. It is undisputed that the CRADAs entered into by EMSL-CI are final agency action for the purposes of our analysis. Chem Service must also show that it is adversely affected or aggrieved by the agency action “within the meaning of the relevant statute.” Id. at 883, 110 S.Ct. at 3186. To do so, “the plaintiff must establish that the injury he complained of (his aggrievement, or the adverse effect upon him) falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis of the complaint.” Id. The Supreme Court has described the necessary" }, { "docid": "21525679", "title": "", "text": "to bring a cause of action pursuant to a federal statute, a plaintiff’s asserted interests must fall within the “zone of interests” protected by the statute invoked. Lexmark Int’l, Inc. v. Static Control Components, Inc., — U.S. —, 134 S.Ct. 1377, 1388-89, 188 L.Ed.2d 392 (2014). “[W]hether a plaintiffs claims are within a statute’s zone of interests is not a jurisdictional question,” Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1156 (9th Cir. 2015) (citing Lexmark, 134 S.Ct. at 1387-88). Rather, the inquiry is one of statutory interpretation, which asks whether a particular class of plaintiffs has a cause of action under-a particular substantive statute. Lexmark, 134 S.Ct. at 1387; Ray Charles Found. v. Robinson, 795 F.3d 1109, 1120-21 (9th Cir. 2015). The zone-of-interests test is most frequently applied as a limitation on the right of action conféiTed by the Administrative Procedure Act (APA), but the Supreme Court has held that it applies “to all statutorily, created causes of action.” Lexmark, 134 S.Ct. at 1388 (citing Bennett v. Spear, 520 U.S. 154, 163, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)). In the APA context, “the test is not 'especially demanding’”; Id. (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 132 S.Ct. 2199, 2210, 183 L.Ed.2d 211 (2012)), it requires only that the Plaintiffs interests “must be ‘arguably within the zone of interests to be protected or regulated by the statute,’” Match-E-Be-Nash-She-Wish, 132 S.Ct. at 2210 (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). But “the breadth of the zone of interests varies according to the provisions of law at issue, so that what comes within the zone of interests of a statute for purposes of obtaining judicial review of administrative action under the ‘generous review provisions’ of the APA may not do so for other purposes.” Lexmark, 134 S.Ct. at 1389 (quoting Bennett, 520 U.S. at 163, 117 S.Ct. 1154). In determining whether a plaintiffs claims fall within a statute’s zone of interests, courts should'look first to the statute’s stated purposes." }, { "docid": "12776695", "title": "", "text": "action in approving the grant. The “three-part test [for standing to contest validity of agency actions] established in Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) and Association of Data Processing Serv. Organ., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ... is: (1) the challenged action must result in injury-in-fact to the plaintiffs; (2) the interest invaded must be arguably within the zone of interest to be protected by the statute; and (3) there must be no statutory prohibition of judicial review.” Suntex Dairy v. Bergland, 591 F.2d 1063, 1066 (5th Cir. 1979). The constitutionally-compelled injury — in-f act element of the standing test requires the plaintiffs to demonstrate a sufficiently direct and concrete injury, Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 73, 98 S.Ct. 2620, 2631, 57 L.Ed.2d 595, 611 (1978), which is likely to be redressed if the plaintiffs prevail on the merits. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 262, 97 S.Ct. 555, 561, 50 L.Ed.2d 450, 462 (1977); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450, 460 (1976). The mobility-disabled plaintiffs in the present case have met the constitutional requisite for standing; their injury-in-fact consists of the direct and personal loss they suffer if they are unable to use public transportation. The second element of the standing test is mandated by the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. and § 701 et seq. A person who is “adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof” under Section 10(a) of the Administrative Procedure Act, 5 U.S.C. § 702. A plaintiff satisfies the APA standing requirement if his interests are arguably within the zone of interests that the statute in question was intended to protect or regulate. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184, 188 (1970). “The ‘relevant" }, { "docid": "22122565", "title": "", "text": "The NCUA’s revised interpretation of § 109 was therefore impermissible. See id., at 529. Because of the importance of the issues presented, we granted certiorari. 519 U. S. 1148 (1997). Respondents claim a right to judicial review of the NCUA’s chartering decision under § 10(a) of the APA, which provides: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U. S. C. § 702. We have interpreted § 10(a) of the APA to impose a prudential standing requirement in addition to the requirement, imposed by Article III of the Constitution, that a plaintiff have suffered a sufficient injury in fact. See, e. g., Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 152 (1970) (Data Processing). For a plaintiff to have prudential standing under the APA, “the interest sought to be protected by the complainant [must be] arguably within the zone of interests to be protected or regulated by the statute ... in question.” Id., at 153. Based on four of our prior cases finding that competitors of financial institutions have standing to challenge agency action relaxing statutory restrictions on the activities of those institutions, we hold that respondents’ interest in limiting the markets that federal credit unions can serve is arguably within the zone of interests to be protected by § 109. Therefore, respondents have prudential standing under the APA to challenge the NCUA’s interpretation. A Although our prior cases have not stated a clear rule for determining when a plaintiff’s interest is “arguably within the zone of interests” to be protected by a statute, they none theless establish that we should not inquire whether there has been a congressional intent to benefit the would-be plaintiff. In Data Processing, supra, the Office of the Comptroller of the Currency (Comptroller) had interpreted the National Bank Act’s incidental powers clause, Rev. Stat. § 5136, 12 U. S. C. § 24 Seventh, to permit national banks to perform data processing services for other banks and bank" }, { "docid": "22827978", "title": "", "text": "regarding judicial review of federal administrative action. Section 10 of the APA, 5 U.S.C. § 702 (1970), provides that any person “adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” The Supreme Court has interpreted this language as providing review to anyone who has suffered injury to an interest that is “ ‘arguably within the zone of interests to be protected or regulated’ by the statutes that the agencies were claimed to have violated.” Sierra Club v. Morton, supra at 733, 92 S.Ct. at 1365 [footnote omitted]; Association of Data Processing Service Organizations v. Camp, supra at 153-156 of 397 U.S., 90 S.Ct. 827. Defendants urge us to hold that plaintiffs do not satisfy the zone of interests test that has been read into the APA’s standing provision. The theory advanced by defendants in support of this contention is that plaintiffs’ injured interest is in having the FHA Philadelphia Office insure only mortgages on homes complying with Philadelphia’s Housing Code and that the allegedly violated provisions of the National Housing Act do not arguably protect this interest. We think that defendants misconceive the nature of the zone of interests test. The zone of interests test does not focus so precisely as defendants urge on the specifics of the complaint to determine the interest injured or on the allegedly violated statutory provision to determine the protection arguably afforded such interest. Defendants argue that the relevant interest of plaintiffs for APA standing purposes is their interest in obtaining a remedy — FHA insurance of mortgages only on homes meeting housing code standards. That argument confuses the relevant interest for standing purposes under the APA with the merits of the case. This confusion is inherent in the “legal interest” test that some courts found embodied in the APA before the Supreme Court’s rejection of that interpretation in Data Processing. The District Court, following the Data Processing test for determining whether a person is adversely affected or aggrieved as that phrase is used in the APA, correctly looked not to the remedy sought," } ]

[ { "docid": "7760800", "title": "", "text": "conclusive and shall not be reviewable by any other officer or agency of the Government. * * * [7 U.S.C. § 1385 (1964)] The Agricultural Act of 1970, supra, continued the Feed Grain Program, for the crop years 1971, 1972, and 1973, by amendment to section 105 of the Agricultural Act of 1949, as amended. 84 Stat. 1368. As part of the same enactment, it made the aforesaid finality provision of the Agricultural Adjustment Act of 1938, as amended (section 385; 7 U.S.C. § 1385) applicable in express terms to payments under the feed grain set-aside program (and also to payments made under the cotton and wheat programs, also provided for in the same Act), as the Feed Grain Program was now authorized under the said Agricultural Act of 1970, independent of the Soil Conservation and Domestic Allotment Act, 84 Stat. 1366 (§404(5)) ; id., 1378 (§ 605(3)). The amendment did not change the fundamental thrust of section 1385, which after the 1970 amendment, read, in pertinent part, as follows: The facts constituting the basis for any payment under the Soil Conservation and Domestic Allotment Act, as amended, parity payment, payments under the cotton set-aside program, payments (including certificates) under the wheat and feed grain set-aside programs, payment under section 1339 of this title, [i.e., diverted acreage payments] loan, or price support operation, or the amount thereof, when officially determined in conformity with the applicable regulations prescribed by the Secretary or by the Commodity Credit Corporation, shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government. * * * [7 U.S.C. § 1385 (1970)] The regulations issued by the Secretary provided generally for tenants and sharecroppers to receive a proportionate part of the program payments, based on their rental or sharing agreement with the owner or operator of the farm; precluded payments if the owner or operator reduced the number of tenants and sharecroppers on the farm in anticipation of or because of participating in the programs; and required refund by producers of payments to which they were not entitled, including" } ]

[ { "docid": "11054993", "title": "", "text": "the recovery of money damages from defendant. Plaintiffs have eschewed any claims for compensatory damages in this court, and the declaratory relief they request clearly has both prospective and immediate value to them such that this court may entertain their suit. Defendant next argues that under 7 U.S.C. § 1385 this court’s review of its “person” determinations is limited to the administrative record, and that findings of fact upon which that decision is based are binding and conclusive. Section 1385 provides in pertinent part that: [t]he facts constituting the basis for any Soil Conservation Act payment, [and] any payment under the [price support] programs authorized by the Agricultural Act of 1949 ... when officially determined in conformity with the applicable regulations prescribed by the Secretary ... shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government. 7 U.S.C. § 1385. Relying on this provision, defendant objected to any and all testimony and evidence offered at the preliminary injunction hearing on the grounds that, because such evidence was not part of the administrative record, it is irrelevant. The essence of plaintiffs’ complaint, of course, is that the agency acted arbitrarily and capriciously and in violation of their due process rights. Section 1385 does not preclude judicial consideration of such a claim; rather, consistent with the judicial review provisions of the APA, it prevents this court from substituting its judgment for that of the agency and limits the present inquiry to a determination of whether ASCS “considered all relevant factors” and had a rational basis for its decision. King v. Bergland, 517 F.Supp. 1363 (D.Colo.1981). Much of the evidence and testimony proffered at the hearing was directly relevant to this inquiry. Plaintiffs offered evidence demonstrating that they had no intention of deceiving or misleading the Baca. County ASCS or FmHA in 1984; that their federal tax returns were consistent with their representations to ASCS concerning the number of persons in the partnership for the years in question; that they did not intend to deceive or mislead the county committee when they filed as" }, { "docid": "18420565", "title": "", "text": "breach of contract be brought in the Court of Claims if the damages asserted exceed $10,000. This issue need not be addressed. In his brief in opposition, Plaintiff concedes the applicability of the Tucker Act and relinquishes recovery in excess of $10,000 so that this suit may remain in district court, which has jurisdiction concurrent with the Court of Claims for breach of contract claims against the federal government when damages asserted are $10,000 or below. A second asserted basis of dismissal concerns the finality of the administrative fact finding initiated by Plaintiff in his appeal pursuant to 7 C.F.R. Part 780. Defendants argue that § 385 of the Agricultural Adjustment Act, 7 U.S.C. § 1385, precludes review of any of the facts constituting the basis of Plaintiff’s grain allotment, though it does not prohibit judicial review of the legal questions involved. Because this issue presents questions relevant to this Court’s jurisdiction it must be addressed. Section 385 provides in pertinent part: The facts constituting the basis for ... any payment under the wheat, feed grain, upland cotton, and rice programs authorized by the Agricultural Act of 1949 and this chapter, ... when officially determined in conformity with the applicable regulations prescribed by the Secretary or by the Commodity Credit Corporation, shall be final and conclusive and shall not be reviewable by any other officer or agency of the government. Citing Buckland v. United States, Case No. 81-4059 (D.Kan.1983), Defendants assert that though legal questions are judicially reviewable, because Plaintiff has failed to raise questions concerning whether the agency exceeded its statutory authority, satisfied the requirements of due process, acted in accord with its regulations, or reached its determination arbitrarily and capriciously, the Court is without power to resolve this dispute and Defendants’ motion should be granted a fortiori. Plaintiff asserts in his brief in opposition that he does not ask this Court to make any redetermination concerning the calculations used to arrive at his final grain allotment. Instead, he asserts that his complaint alleging breach of contract essential ly seeks a legal determination concerning whether Defendants breached the contract," }, { "docid": "7760814", "title": "", "text": "1319 (E.D. Calif. 1971) ; and cases cited in the foregoing cases. In United States v. Gomes, supra, the court discussed the decisions in most of these cases and analyzed the finality provisions of 7 U.S.C. § 1385 as follows: Now the government has moved for summary judgment on Count III of the complaint. The basis for this motion is the government’s theory that administrative determinations made under the Feed Grain Programs are final and conclusive and not subject to review. This theory is based on the fact that the Soil Conservation and Domestic Allotment Act, which authorized the Program, contains no provisions for judicial review. It is also based on the provisions of Section 385 of the Agricultural Adjustment Act (hereinafter, the AAA), which in pertinent part provides as follows: The facts constituting the basis for any payment under the Soil Conservation Act, * * * when officially determined in conformity with the applicable regulations prescribed by the Secretary or by the Commodity Credit Corporation, shall be final and conclusive and shall not be. reviewable by any other officer or agency of the Government. 7 U.S.C. Sec. 1385. This statute and similar statutes have been interpreted on several occasions as a bar to judicial review of administrative determinations of fact. Section 385 was analyzed as follows in Aycock-Lindsey Corp. v. United States, 171 F. 2d 518, 522 (5th Cir. 1948) : We do not interpret the Act as preventing, or undertaking to prevent, a review by the courts of the legal questions involved, but only to preclude a review of the facts constituting the basis for payment. Gregory v. Freeman, 261 F. Supp. 362 (N.D.N.Y. 1966) was a case directly concerned with AAA Sec. 385 (7 U.S.C. Sec. 1385). This case was an action in which plaintiff sought an order annulling a determination of the county committee under the 1963 Feed Grain Program. The determination withheld payment of the final installment alleged to be due under the program and directed that a payment already made be returned with interest. The court concluded that it lacked jurisdiction over the matter." }, { "docid": "8364503", "title": "", "text": "share producers for the purpose of meeting single farm operator rules for combination of farms. The combination of these farms is not in the best interest of the program.” (part of filing 18) The plaintiff then appealed the findings of the state committee to the Deputy Administrator, State and County Operations, of the United States Department of Agriculture. On May 5, 1983, the deputy administrator informed the plaintiff that the decision of the state committee was affirmed, thus ending the appeal rights under 7 C.F.R. Part 780. This was the final determination of the Department of Agriculture. The plaintiff subsequently filed this lawsuit, challenging the decombination of his farms. He is seeking relief in the form of an injunction preventing the defendants from enforcing the provisions of two amendments to the handbook used by the county ASCS committees, a judgment directing the defendants to combine his farmland into one farming unit, and money damages. The defendants have filed a motion to dismiss or in the alternative for summary judgment, filing 18. I. Reviewability The defendants claim that 7 U.S.C. § 1385 precludes judicial review of the determination of the committees and the deputy administrator that the plaintiffs farms should remain decombined. Section 1385 provides: “The facts constituting the basis for ... any payment under the wheat, feed grain, upland cotton, and rice programs authorized by the Agricultural Act of 1949 and this chapter, any ... price support operation, or the amount thereof, when determined in conformity with the applicable regulations prescribed by the Secretary or by the Commodity Credit Corporation, shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government.” The cases cited by the defendants, however, show that this section is not a complete bar to judicial review. In Gross v. United States, 505 F.2d 1271 (Ct.Cl.1974), the court interpreted this section to mean that the factual determinations of an agency are not subject to review by the judiciary and that “the decision of the agency based on such factual determinations are also entitled to finality and are not subject" }, { "docid": "5746252", "title": "", "text": "(same), .419(b) (Tenant Participation), 780.2 (Definitions), .9(b) (Document Request). See Gross v. United States, supra, 508 F.Supp. at 1091. . The district court permitted Gross to assert that the Government violated 7 C.F.R. § 780.-2, .9(b), because he had not alleged the violation of those provisions in the Court of Claims suit. Gross does not challenge the grant of partial summary judgment in this appeal. . See note 20 infra. . Section 2680(a) excludes from coverage all acts or omissions “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a) (1976). . See note 3 supra. . Section 1385 states: The facts constituting the basis for any payment under * * * [the] feed grain set-aside program [] * * * [,] when officially determined in conformity with the applicable regulations prescribed by the Secretary or by the Commodity Credit Corporation, shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government. [7 U.S.C. § 1385 (1970).] We do not read this finality provision to preclude inquiry into the factual determinations underlying the ASCS action in all cases. Instead, the section concerns only the scope of review of a challenged decision to include or exclude a producer from the program. Gross does not challenge that decision; instead, he alleges that the ASCS acted in a tortious manner. The district court therefore acted properly in taking evidence about the factual determinations underlying the ASCS actions. . Section 2675(a) provides: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have" }, { "docid": "22343226", "title": "", "text": "United States Constitution. A. Statutory Limitations on Review Section 701 of the APA provides that agency action is subject to judicial review except where there is a statutory prohibition on review or where agency action is committed to agency discretion as a matter of law. 5 U.S.C. § 701(a)(1), (2), construed in Thomas Brooks Chartered v. Burnett, 920 F.2d 634, 641-42 (10th Cir.1990). The latter provision is not at issue here. There are, however, two statutory provisions applicable to the Wheat Program that purport to limit judicial review: 7 U.S.C. § 1385 and 7 U.S.C. § 1429. Neither party addresses these statutes in their briefs, but we must consider them before reaching the merits of the Farmers’ contentions on appeal. We spe- cifieally hold §§ 1385 and 1429 do not limit our review in this ease. See Garvey v. Freeman, 397 F.2d 600, 605 (10th Cir.1968) (§ 1385 did not preclude review of ASCS’s determination of wheat farmer’s normal yield). Section 1385 provides: “[T]he facts constituting the basis for any ... payment under the wheat ... pro-grame ] authorized by [the Agriculture Act of 1949] ... or the amount thereof, when officially determined in conformity with the applicable regulations prescribed by the Secretary or by the Commodity Credit Corporation, shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government.” Further, 7 U.S.C. § 1429 provides: “Determinations made by the Secretary under [the Agriculture Act of 1949] shall be final and conclusive: Provided, That the scope and nature of such determinations shall not be inconsistent with the provisions of the Commodity Credit Corporation Charter Act [15 U.S.C. § 714 et seq.].” (Emphasis original). The essence of the Farmers’ claims is the ASCS action violated due process, substantively in the sense of being arbitrary or capricious, and procedurally in the sense of denying minimum safeguards. Neither statute precludes judicial consideration of such claims; rather, consistent with the judicial review provisions of the APA, each prevents the reviewing court from substituting its judgment on the facts for that of the agency. See Esch v." }, { "docid": "8364504", "title": "", "text": "claim that 7 U.S.C. § 1385 precludes judicial review of the determination of the committees and the deputy administrator that the plaintiffs farms should remain decombined. Section 1385 provides: “The facts constituting the basis for ... any payment under the wheat, feed grain, upland cotton, and rice programs authorized by the Agricultural Act of 1949 and this chapter, any ... price support operation, or the amount thereof, when determined in conformity with the applicable regulations prescribed by the Secretary or by the Commodity Credit Corporation, shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government.” The cases cited by the defendants, however, show that this section is not a complete bar to judicial review. In Gross v. United States, 505 F.2d 1271 (Ct.Cl.1974), the court interpreted this section to mean that the factual determinations of an agency are not subject to review by the judiciary and that “the decision of the agency based on such factual determinations are also entitled to finality and are not subject to judicial review, except as to questions of law, or allegations and proof by the plaintiff that such decisions were arbitrary or capricious.” Id., at 1279 (emphasis added). In Elliott v. United States, 179 F.Supp. 758, 759 (U.S.D.C.Neb.1959), another case cited by the defendants, the court was concerned with the Soil Bank Act, 7 U.S.C. §§ 1801 et seq. Tit. 7 U.S.C. § 1809 contained provisions and language limiting review by other officers and agencies of the government that were very similar to 7 U.S.C. § 1385. In interpreting this provision the court stated that it would follow the directions of Congress and “refuse to review either the facts constituting the basis for payment or the amount thereof authorized under the Soil Bank Act.” Id., at 762. The court went on to note an exception to the no-review provision when there is a deprivation of constitutional rights. Id.', accord, Prosser v. Butz, 389 F.Supp. 1002, 1005 (U.S.D.C.Ia.1974). Because the plaintiff has alleged that the acts of the individual ASCS committee members were arbitrary and capricious" }, { "docid": "4084159", "title": "", "text": "Hughes’ and Lindsey Brothers’ claims as a request for relief under the provisions of the “erroneous notice” regulation. It held an evidentiary hearing and made findings of fact and conclusions of law. It denied relief on the grounds that the producers had not established facts entitling them to relief under the regulation. The appellees then sought review of the review committee’s decision in the United States District Court. The court entered an order reversing and remanding the Lindsey Brothers’ case with directions to refund the assessed penalty with interest. It subsequently took similar action in the Hughes’ case. The District Court held, as a matter of law, that the notice of compliance given to each producer became final within fifteen days from the date the notices were received by the producers. The decision was based on 7 U.S.C. § 1385, and the decision of this Court in United States v. Kopf, 379 F.2d 8 (8th Cir. 1967), interpreting § 1385. The District Court did not reach the question of whether the appellees were entitled to relief under the provisions of the “erroneous notice” regulation. I. FINALITY OF THE NOTICE OF COMPLIANCE. Section 1385 provides, in substance, that the facts constituting the basis for various payments under the programs administered by the Secretary of Agriculture “when officially determined in conformity with the applicable regulations prescribed by the Secretary” shall be final and conclusive and shall not be reviewable by any other officer or agency of the government. The District Court held that the notice of compliance, prepared by the office personnel of the county ASCS office, constituted an official determination in conformity with the applicable regulations and was non-reviewable. We disagree. The regulations make it clear that an acreage determination by the office personnel is intended to be neither official nor final within the meaning of § 1385. The regulations authorized the Secretary to make a redetermination, and the producer can, if he sees fit, ignore an adverse determination or redetermination until the county committee assesses a penalty. If the county committee decides to assess a penalty, the producer is mailed" }, { "docid": "547393", "title": "", "text": "the 1962 and 1963 yield determinations shown by the Form 471 notices are final under 7 U.S.C.A. § 1385, which reads: “The facts constituting the basis for any payment under the Soil Conservation and Domestic Allotment Act, as amended, parity payment, payment under section 1339 of this title, loan, or price support operation, or the amount thereof, when officially determined in conformity with the applicable regulations prescribed by the Secretary or by the Commodity Credit Corporation, shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government. * * * ” We believe that such statute applies to our factual situation. As to 1962, as heretofore shown, the 118 bushels per acre yield was established upon plaintiffs’ application for reconsideration after a full evidentiary hearing, whereupon a new Form 471 for 1962 was issued fixing the 118 bushel yield for each farm. Such proceeding was authorized by the regulations and there is no showing that the original hearing did not fully conform to the regulations. No appeal having been taken by the producer, the decision is final as to him. See Gajewski v. United States, 8 Cir., 327 F.2d 239, 242; Weir v. United States, 8 Cir., 310 F.2d 149, 157. Fairness requires that a decision final as to one party should also be final as to the other, absent clear statutory authority to the contrary. Section 1385 accomplishes this objective. Seven C.F.R. 775.226, applicable to 1963 with no counterpart for 1962, authorizes a state committee to correct action taken by the county committee which is not in accordance with regulations. Such regulation is of no help to the Government as there is no showing the county committee’s determination upon the producers’ application for reconsideration was not in strict accord with the regulations. Seven C.F.R. 775.117(a) and 775.216(a), which authorize correction of mechanical or clerical errors that arise solely from action of the county or state committee representatives has no application in our present case as no mechanical or clerical errors are alleged or shown. It is true, as alleged by the" }, { "docid": "22343227", "title": "", "text": "... pro-grame ] authorized by [the Agriculture Act of 1949] ... or the amount thereof, when officially determined in conformity with the applicable regulations prescribed by the Secretary or by the Commodity Credit Corporation, shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government.” Further, 7 U.S.C. § 1429 provides: “Determinations made by the Secretary under [the Agriculture Act of 1949] shall be final and conclusive: Provided, That the scope and nature of such determinations shall not be inconsistent with the provisions of the Commodity Credit Corporation Charter Act [15 U.S.C. § 714 et seq.].” (Emphasis original). The essence of the Farmers’ claims is the ASCS action violated due process, substantively in the sense of being arbitrary or capricious, and procedurally in the sense of denying minimum safeguards. Neither statute precludes judicial consideration of such claims; rather, consistent with the judicial review provisions of the APA, each prevents the reviewing court from substituting its judgment on the facts for that of the agency. See Esch v. Lyng, 665 F.Supp. 6, 12 (D.D.C.1987), aff'd sub nom. Esch v. Yeutter, 876 F.2d 976 (D.C.Cir.1989) (construing § 1385); Gonzalez v. Freeman, 334 F.2d 570, 575 (D.C.Cir.1964) (§ 1429). As we stated in Garvey: “‘No legislative language can deprive a man of a fair hearing in the adjudication of his rights, or of his right to have a court decide whether the administrative agency acted within its jurisdiction; and, whether the agency through a lay tribunal applied the correct rule of law to the facts.’ ” 397 F.2d at 605 (quoting Caulfield v. Dept. Agriculture, 293 F.2d 217, 228 (Wisdom, J. dissenting)); see Sabin v. Butz, 515 F.2d 1061, 1064-65 (10th Cir.1975). We conclude neither 7 U.S.C. § 1385 nor § 1429 limits our review of the agency action at issue in the present appeal. B. Overview of Judicial Review Under the APA Having determined the ASCS’s actions are subject to judicial review, we must determine the appropriate standard. The scope of judicial review of agency action under the APA is set forth in the" }, { "docid": "18557677", "title": "", "text": "appeal left open the issues that are before us now. On remand, the United States renewed its motion for summary judgment, again asserting the finality of the ASCS determinations under 7 U.S.C. § 1385. The appellants responded that the administrative proceedings were riddled with violations of due process. Alleged violations included inordinate delay in the administrative process, bias and prejudgment on the part of hearing officers, and the lack of an opportunity to call, confront, and cross-examine witnesses. Some appellants also claimed that, as “operators,” they could not be held liable under a regulation that only required refunds from “producers.” Others claimed that they never actually received any payments. The district court, 588 F.Supp. 871, rejected each of defendants’ claims, entered summary judgment in favor of the United States, and assessed an award in the amount of the subsidy overpayments as determined by the agency, plus interest from the dates of the final agency determinations. On the basis of 7 C.F.R. § 722.-812(k) (1974), the United States moved to amend the judgments to provide interest from the dates the payments were issued. That motion was denied without explanation. Both parties appealed. The defendants appeal the district court’s grant of summary judgment, and the government seeks an award of interest in accord with its reading of the regulation. We affirm the judgment of the district court, but we reverse as to its award of interest. I. SCOPE OF REVIEW Our review of the ASCS’s determination is restricted by 7 U.S.C. § 1385, which provides in relevant part: The facts constituting the basis for any ... payments under the cotton set-aside program ... when officially determined in conformity with the applicable regulations ... shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government. As appellants do not contend that the ASCS violated its own regulations, this provision precludes this court from reviewing the ASCS’s findings of fact. United States v. Jones, supra; see also United States v. Blackwell, 467 F.2d 1377 (5th Cir.1972) (holding that 7 U.S.C. § 1785, which contains identical language," }, { "docid": "12067630", "title": "", "text": "FAGG, Circuit Judge. Donald G. Madsen filed this suit against the United States Department of Agriculture, Secretary of Agriculture Richard Lyng, and various officials of the Agriculture Stabilization and Conservation Service (ASCS) for the purpose of contesting the bushels-per-acre wheat yield assigned to his South Dakota farm. The district court dismissed the case on the ground that it lacked jurisdiction to review the agency’s decision, and Madsen appeals. For different reasons, we affirm. The ASCS, operating through its local county committee, lowered the wheat yields assigned to Madsen’s farm for the years from 1981 to 1985. Although Mad-sen disagreed with the accuracy of these revised yields, he chose not to pursue fully administrative procedures available for challenging them. Congress later passed legislation that incorporated some of these unchallenged yields into an averaging formula used in making crop yield calculations for 1986 and later years. See 7 U.S.C. § 1466 (Supp. IV 1986). Madsen seeks in this action to contest the underlying annual yields that factor into the 1986 average yield computation. In response to the government’s motion to dismiss or for summary judgment, the district court concluded that agency regulations prevented judicial review of the agency’s decision. The court thus dismissed Madsen’s complaint for lack of jurisdiction. Madsen’s complaint and other filings demonstrate that his claims are based principally on the Administrative Procedure Act (the APA), 5 U.S.C. §§ 701-706. While the district court referred to agency regulations for its decision that it lacked jurisdiction over Madsen’s case, the government on appeal contends the APA precludes judicial review because Madsen’s claims arise from “agency action [that] is committed to agency discretion by law,” id. § 701(a)(2). The legal source for this commitment of discretion, according to the government, is a statute limiting intra-agency review of factual determinations that form the basis of Madsen’s wheat program payments. See 7 U.S.C. § 1385 (Supp. IV 1986). Section 1385, however, is not a complete bar to judicial review of agency action related to farm program payments. See, e.g., Westcott v. United States Dep’t of Agric., 611 F.Supp. 351, 353 (D.Neb.1984), aff'd, 765 F.2d" }, { "docid": "18557678", "title": "", "text": "from the dates the payments were issued. That motion was denied without explanation. Both parties appealed. The defendants appeal the district court’s grant of summary judgment, and the government seeks an award of interest in accord with its reading of the regulation. We affirm the judgment of the district court, but we reverse as to its award of interest. I. SCOPE OF REVIEW Our review of the ASCS’s determination is restricted by 7 U.S.C. § 1385, which provides in relevant part: The facts constituting the basis for any ... payments under the cotton set-aside program ... when officially determined in conformity with the applicable regulations ... shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government. As appellants do not contend that the ASCS violated its own regulations, this provision precludes this court from reviewing the ASCS’s findings of fact. United States v. Jones, supra; see also United States v. Blackwell, 467 F.2d 1377 (5th Cir.1972) (holding that 7 U.S.C. § 1785, which contains identical language, precludes review of agency findings of fact). Several of the appellants argue that they cannot be held liable for refunds under 7 C.F.R. § 722.817 because they are not “producers” and did not “receive” program pay ments. 7 C.F.R. § 722.817, as amended, provides: A producer who is determined by the State committee, or the county committee with the approval of the State committee, to having knowingly ... adopted any scheme or device which tends to defeat the purpose of the program, ... shall not be entitled to payments for any farm under the program and shall refund to the Commodity Credit Corporation all payments received by him with respect to the program. (emphasis added). As the district court noted on remand, however, the government does not dispute the fact that some of the defendants were not “producers.” The point is that the entire scheme to evade the regulations, and particularly the $55,000.00 per producer, payment limitation, was the joint effort of producers and operators. The defendants who are claiming innocence in the fact that" }, { "docid": "2705351", "title": "", "text": "price support programs administered by the United States Department of Agriculture (“USDA”). Section 1444(e) authorized the Secretary of the USDA to make loans and subsidy payments, and to require producers to “set aside” cropland, if necessary, to avoid excessive supplies of upland cotton. Section 1444(e) also authorized the Secretary to promulgate regulations to carry out the statutory provisions. Upland cotton loans and subsidy payments were made through the Commodity Credit Corporation (“CCC”), but the program itself was administered in the field by the County and State Committees of the Agricultural Stabilization and Conservation Service (“ASCS”). The ASCS County Committees consisted of three locally elected members. These Committees kept records of crop allotments, yields, and their transfers between farms; approved transfers and payments; and provided the first level of enforcement in the program. The ASCS State Committees’ function was to ensure that County Committees administered the program in accordance with the regulations. 7 C.F.R. § 718.4 (1974). In the event that a farmer received an adverse determination from a County Committee with respect,to-the program, USD A regulations provided for a county level redetermination to be made after an informal hearing, and for the right of appeal, first to the State Committee and then to the Deputy Administrator of the ASCS in Washington, D.C. 7 C.F.R. §§ 780.3-.5. A producer was also entitled, to an informal hearing at these two levels of appeal. In these hearings he was entitled to “a full opportunity to present facts and information relevant to the matter in issue and [to] present oral or documentary evidence.” 7 C.F.R. § 780.8. The Agricultural Adjustment Act provided that: “The facts constituting the basis for any ... payments under the cotton set-aside program ... when officially determined in conformity with the applicable regulations prescribed by the Secretary ... shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government.” 7 U.S.C. § 1385. The payment or subsidy element of the upland cotton program is at issue in this appeal. Sections 1444(e)(2) and (3) of the statute prescribe a formula for determining a" }, { "docid": "7760813", "title": "", "text": "be subject to the provisions pertaining to fraudulent representation in the applicable program regulations. (Sec. 339, 76 Stat. 622; 7 U.S.C. 1339) [32 F.R. 19155, Dec. 20, 1967, as amended by Amdt. 1, 34 F.R. 1227, Jan. 25, 1969] The above regulations clearly authorized the agency to demand and collect the refund under the circumstances of this case. The defendant urges that its motion for summary judgment be granted because the factual determinations made by the agency are final under 7 U.S.C. § 1385 and are not subject to judicial review. While this appears to be a question of first impression in this court, the decisions of other courts support this proposition. Aycock-Lindsey Corp. v. United States, 171 F. 2d 518, 522 (5th Cir. 1948), 187 F. 2d 117 (1951) ; Gregory v. Freeman, 261 F. Supp. 362, 365 (N.D.N.Y. 1966) ; United States v. Kopf, 379 F. 2d 8, 12 (8th Cir. 1967) ; United States v. Moore, 298 F. Supp. 199, 200 (S.D. Ohio 1969) ; United States v. Gomes, 323 F. Supp. 1319 (E.D. Calif. 1971) ; and cases cited in the foregoing cases. In United States v. Gomes, supra, the court discussed the decisions in most of these cases and analyzed the finality provisions of 7 U.S.C. § 1385 as follows: Now the government has moved for summary judgment on Count III of the complaint. The basis for this motion is the government’s theory that administrative determinations made under the Feed Grain Programs are final and conclusive and not subject to review. This theory is based on the fact that the Soil Conservation and Domestic Allotment Act, which authorized the Program, contains no provisions for judicial review. It is also based on the provisions of Section 385 of the Agricultural Adjustment Act (hereinafter, the AAA), which in pertinent part provides as follows: The facts constituting the basis for any payment under the Soil Conservation Act, * * * when officially determined in conformity with the applicable regulations prescribed by the Secretary or by the Commodity Credit Corporation, shall be final and conclusive and shall not be." }, { "docid": "12067631", "title": "", "text": "government’s motion to dismiss or for summary judgment, the district court concluded that agency regulations prevented judicial review of the agency’s decision. The court thus dismissed Madsen’s complaint for lack of jurisdiction. Madsen’s complaint and other filings demonstrate that his claims are based principally on the Administrative Procedure Act (the APA), 5 U.S.C. §§ 701-706. While the district court referred to agency regulations for its decision that it lacked jurisdiction over Madsen’s case, the government on appeal contends the APA precludes judicial review because Madsen’s claims arise from “agency action [that] is committed to agency discretion by law,” id. § 701(a)(2). The legal source for this commitment of discretion, according to the government, is a statute limiting intra-agency review of factual determinations that form the basis of Madsen’s wheat program payments. See 7 U.S.C. § 1385 (Supp. IV 1986). Section 1385, however, is not a complete bar to judicial review of agency action related to farm program payments. See, e.g., Westcott v. United States Dep’t of Agric., 611 F.Supp. 351, 353 (D.Neb.1984), aff'd, 765 F.2d 121 (8th Cir.1985) (per curiam). Although factual determinations of an agency are not subject to judicial review under section 1385, we are free under the APA to review legal questions or agency action asserted to be arbitrary or capricious. Id.; Robinson v. Block, 608 F.Supp. 817, 820 (W.D.Mich.1985) (section 1385 does not bar inquiry into agency performance of statutory and regulatory duties); see also Garvey v. Freeman, 397 F.2d 600, 604-05 (10th Cir.1968) (section 1385 does not bar judicial review of farmer’s challenge, on due process grounds, of assigned wheat yield). Similarly, regulations covering appeals of agency determinations in specified farm programs, see 7 C.F.R. §§ 780.1 — 780.12 (1988), do not preclude all judicial review of farm program payment decisions. Instead, these regulations limit the extent of review available within the administrative agency. See id. §§ 780.3 — 780.5; see also Garvey, 397 F.2d at 604. Having reviewed the nature of Madsen’s claims, we conclude neither section 1385 nor the regulations governing agency appeals prevents review of those claims under the APA. Beyond this," }, { "docid": "5223735", "title": "", "text": "premised upon Doko’s contention that the 1981 district court judgment extinguished Doko’s debt and the government’s cause of action to collect it. As we have held in Part II of this opinion, the 1981 judgment did not have that effect. Moreover, the government administratively offset the amount of the improper subsidy payments to Doko against subsidy payments to Doko for subsequent years before the 1981 judgment. IV. Finally, in its reply brief the government urges us not only to vacate the Claims Court judgment in favor of Doko, but, also, to “sustain the Department of Agriculture’s authority to offset Doko Farms’ liability for payments procured, as a matter of law, by scheme or device to evade the Upland Cotton Price Support Program for their personal gain and the taxpayer’s loss.” It refers to 7 U.S.C. § 1385 (1988), which provides: The facts constituting the basis for ... payment under the ... upland cotton ... program[ ] ... when officially determined in conformity with the applicable regulations prescribed by the Secretary ... shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government. The government notes that in the second Batson appeal, United States v. Batson, 782 F.2d 1307, 1310 (5th Cir.) cert. denied, 477 U.S. 906, 106 S.Ct. 3277, 91 L.Ed.2d 567 (1986), the court of appeals held that “this provision precludes this court from reviewing [Agriculture’s] findings of fact,” and it contends that the administrative findings in this case “establish[ ] Doko Farms’ debt as a matter of law.” We decline the government’s invitation and conclude that the proper disposition of this case is the one the government proposed in its opening brief: “to remand the case for a determination of whether the Department of Agriculture properly exercised its authority to offset Doko Farms’ debt.” As the Fifth Circuit noted in the first Batson appeal, the precise scope of this preclusion of judicial review is unclear. 706 F.2d at 684-85. Like the court in Bat-son, “[w]e leave that judgment initially to the [Claims Court] on remand.” Id. at 685. CONCLUSION The" }, { "docid": "11054992", "title": "", "text": "court of jurisdiction, since the Claims Court does not “possess exclusive jurisdiction simply because a suit for nonmonetary relief may form the basis of a later money judgment.” State of Tennessee, 749 F.2d at 336; see also Van Drasek, 762 F.2d at 1069 n. 4 (“district court has jurisdiction over a non-monetary claim even though the same facts giving rise to the non-monetary claim would support an action for money in the Claims Court”); State of Minnesota, 718 F.2d at 858 (“fact that a suit for nonmonetary relief in the district court may also provide basis for a grant of money damages against the United States is not a sufficient reason to foreclose district court jurisdiction”). Finally, it is possible that the ultimate relief this court orders will simply involve a remand to the agency, which will not entitle plaintiffs to money in the Claims Court, but rather will allow them an opportunity to develop a more complete and accurate record. In short, the court concludes that the primary purpose of this suit is not the recovery of money damages from defendant. Plaintiffs have eschewed any claims for compensatory damages in this court, and the declaratory relief they request clearly has both prospective and immediate value to them such that this court may entertain their suit. Defendant next argues that under 7 U.S.C. § 1385 this court’s review of its “person” determinations is limited to the administrative record, and that findings of fact upon which that decision is based are binding and conclusive. Section 1385 provides in pertinent part that: [t]he facts constituting the basis for any Soil Conservation Act payment, [and] any payment under the [price support] programs authorized by the Agricultural Act of 1949 ... when officially determined in conformity with the applicable regulations prescribed by the Secretary ... shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government. 7 U.S.C. § 1385. Relying on this provision, defendant objected to any and all testimony and evidence offered at the preliminary injunction hearing on the grounds that, because such evidence" }, { "docid": "4084175", "title": "", "text": "jurisdiction under 7 TJ.S.C. § 1365. . Section 1385, 7 TJ.S.C., provides: “The facts constituting the basis for any payment under the Soil Conservation and Domestic Allotment Act, as amended, parity payment, payment under section 1339 of this title, loan, or price support operation, or the amount thereof, when officially determined in conformity with the applicable regulations prescribed by the Secretary or by the Commodity Credit Corporation, shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government. In case any person who is entitled to any such payment dies, becomes incompetent, or disappears before receiving such payment, or is succeeded by another who renders or completes the required performance, the payment shall, without regard to any other provisions of law, be made as the Secretary of Agriculture may determine to be fair and reasonable in all the circumstances and provide by regulations. This section also shall be applicable to payments provided for under section 1348 of this title. . “The decision of the County Committee determining the farm in compliance September 4i, 1964, which became binding was not questioned for some two months. During this time the cotton was substantially harvested and marketed. * * * “ * * * [N]o appeal [was] filed * * * from * * * [that] determination ***.*** The Review Committee delayed a hearing until September 7, 1966, and its decision until September 23, 1966, over two years later. There is no contention of fraud or misrepresentation, therefore, the de termination of compliance September 4, 1964, was final as to both the administrative agency and the farmer. Lindsey Bros. v. Jones, 271 F.Supp. 933, 938 (E.D.Ark.1967). . The form contains the following legend: “Any application for review of the farm marketing quota or farm marketing excess is required to be filed in writing with the county office manager of the ASO county committee, within 15 days after the date of mailing this notice, in accordance with the review regulations prescribed by the Secretary of Agriculture. These regulations are available at the county office. If a" }, { "docid": "2705420", "title": "", "text": "effect ASCS factual findings otherwise receive by virtue of 7 U.S.C. § 1385. That provision, as quoted above, states: “The facts constituting the basis for any . . . payments under the cotton set-aside program ... when officially determined in conformity with the applicable regulations prescribed by the Secretary ... shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government.” 7 U.S.C. § 1385. These particular appellees apparently contend that they received no government payments. Whether they did or did not in fact receive such payments may require a de novo judicial determination. See Gross v. United States, 676 F.2d 295, 299 n. 9 (8th Cir.1982). This judicial inquiry is required to determine whether these appellees were properly subject to the authority of the ASCS compliance review process and thus to the application of section 1385. For the reasons stated, we decline to speculate on the line which divides facts which are entitled to the section 1385 “conclusive” effect, and those which should receive de novo judicial consideration. We leave that judgment initially to the district court on remand. IY. CONCLUSION In sum, we have held that section 722-817(b)(1) is not unconstitutionally vague or overbroad, and that the suits for refund of the 1973 payments, and the False Claims Act cause of action, are not barred by limitations, and that the district court erred in its holdings to the contrary. We have also held that the district court correctly determined that the suits for refund of the 1972 payments were barred by limitations. Accordingly, the judgments are reversed and these cases are remanded for dismissal of the 1972 refund claims and otherwise for further proceedings consistent with this opinion. REVERSED AND REMANDED. . An article in the Agricultural Law Journal provides a helpful overview of the function of these programs: “Price support and related operations have been carried out for specified commodities essential to the national welfare since 1933, beginning with programs under the Agricultural Adjustment Act. Federal laws have authorized price support purchase, loan, and payment programs; farm income protection" } ]

[ { "docid": "5495431", "title": "", "text": "MICHIE, District Judge. This action is brought by the plaintiff to review a final decision of the Secretary of Health, Education and Welfare denying plaintiff's application for the establishment of a period of disability and for disability benefits under the Social Security Act. So far as material to this case “disability” is defined in § 216 (i) of the Act (42 U.S.C.A. § 416(i)) toi mean “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 be of long-continued and indefinite duration.” (Emphasis supplied.) In the last paragraph of the brief of plaintiff’s counsel, implicitly conceding, as indeed he must, that there is no evidence of any physical disability on the part of the plaintiff, he states the issue in the case as follows: “Cecil Edward Bower is not a man ‘who has chosen to retire without making any effort to obtain work’. He is a man whose mental condition is such that he honestly believes that he is unable to work because of physical limitations. It is this belief— this mental impairment — which renders him unable to engage in any substantial gainful activity and it is respectfully submitted that Defendant’s Motion for Summary Judgment should be granted.” If the facts really raised this question it would pose a difficult problem. Stated in another way the question is: “If there is nothing physically wrong with a man that prevents him from working but he honestly believes that there is something wrong and therefore thinks he can’t work and won’t try, is he disabled within the meaning of the Act ?” Fortunately, as a somewhat limited examination of the authorities provides no conclusive answer to it, I think it is not necessary to reach that question. The plaintiff has complained for years of heart trouble and arthritis. The doctors can find no physical evidence of either. Dr. James E. Wheless of the Roanoke Valley Medical Clinic after a thorough examination reported as to these alleged conditions as follows: “So far as eliciting cardiac" } ]

[ { "docid": "22320162", "title": "", "text": "to § 205(g) for further administrative action. The Council vacated its denial of review. Evidence from the files of the Metropolitan was obtained. A supplemental hearing was held in Omaha. The Appeals Council determined that still further medical evidence was necessary. Bolas was examined at government expense by three physicians who submitted written reports. Again the matter was referred to the referee so that oral testimony could be elicited from the physicians. Finally the Appeals Council on September 9,1960, issued a lengthy and comprehensive decision. It reached the following conclusion: “The Appeals Council agrees that the claimant has certain impairments similar to those of other persons his age that are the result of the natural aging process, no more and no less, but finds that such impairments either singly or in combination, are not of the type that preclude him either from engaging in his usual work or from engaging in any kind of substantial gainful activity.” This reference is obviously directed to the definition of “disability” in § 216 (i) (1), as amended, 42 U.S.C.A. § 416(i) d): “[T]he term‘disability’means * * inability to engage in any substam tial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration * * It is this ruling of the Appeals Council which was the “final decision of the Secretary”, Cody v. Ribicoff, 8 Cir., 1961, 289 F.2d 394, 395, which was reversed by the district court and which now reaches us on appeal almost eight years and four Secretaries after the claimant’s application was filed. Both sides stress the applicable legal standards. There is no real dispute as to these: 1. Bolas, technically, has the burden of establishing his claim. Kerner v. Flemming, 2 Cir., 1960, 283 F.2d 916, 921; Poage v. Ribicoff, E.D.Mo., 1962, 205 F.Supp. 938, 939; Blanscet v. Ribicoff, W.D.Ark., 1962, 201 F.Supp. 257, 260. 2. The Act is remedial and is to be construed liberally. Kohrs v. Flemming, 8 Cir., 1959, 272 F.2d 781, 736. 3. The Secretary’s findings" }, { "docid": "23331916", "title": "", "text": "that the granting of summary judgment was error. If it can be properly determined that claimant’s job itself constitutes substantial gainful activity and that he is fully able to perform it, a different conclusion would be justified. Accordingly, the case is remanded to the District Court with directions to remand it to the Secretary for further proceedings consistent with the views herein expressed. Reversed and remanded. . As defined in 42 U.S.C.A. § 423(c) (2), the term “disability” means “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 to be of long-continued and indefinite durations * * *» . Under 42 U.S.C.A. § 405(a), the Secretary is empowered to establish rules and regulations “not inconsistent with the provisions of this suhehapter, which are necessary or appropriate to carry out such provisions,” and to “adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.” . A few cases, however, have recognized the Secretary’s use of the figure of $1200 annually as a rule of thumb to measure substantial employment. See Hicks v. Flemming, 302 F.2d 470, 473 (5 Cir.), cert. denied, 371 U.S. 868, 83 S.Ct. 132, 9 L.Ed.2d 106 (1962); Pollak v. Ribicoff, 300 F.2d 674, 678 (2 Cir. 1962); Butler v. Flemming, 288 F.2d 591, 593 (5 Cir. 1961); Flemming v. Booker, 283 F.2d 321, 324 (5 Cir. 1960). . Although, as the examiner noted, opinion testimony of physicians cannot be deemed conclusive of the ultimate issue, whether claimant is disabled within the meaning of the Act, it is nevertheless relevant and must be considered. See Thomas v. Celebrezze, 331 F.2d 541, 542-543 (4 Cir. 1964); Underwood v. Ribicoff, 298 F.2d 850 (4 Cir. 1962); Regulation of the Secretary, 20 C.F.R. § 404.1526. . Hicks v. Flemming, 302 F.2d 470, 473 (5 Cir. 1962); Kerner v. Flemming, 283 F.2d 916, 921 (2" }, { "docid": "12722968", "title": "", "text": "that plaintiff’s proofs made out a case that he was disabled from doing the work he had been doing prior to his application for social security benefits, to wit: truck driving, and inferentially held that the Secretary’s contrary finding was clearly erroneous. From this holding, the District Judge, relying upon cases from this Court, held that the plaintiff should prevail because the Secretary had not shown that work which plaintiff could do in substitution for his regular employment was available. Hall v. Flemming, 289 F.2d 290 (CA 6, 1961); King v. Flemming, 289 F.2d 808 (CA 6, 1961); and Thompson v. Celebrezze, 334 F.2d 412 (CA 6, 1964). We reverse the District Judge because we are satisfied that the examiner’s findings in this ease were not erroneous and that the plaintiff failed to make out a case that he was disabled within the meaning of the applicable statute. Under said statute, the term disability is defined as “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 to be of long-continued and indefinite duration.” 42 U.S.C.A. § 416(i) (1) (A). At the time of his application, plaintiff Smith was 37 years of age and claimed that he had been unable to work from and after September 17, 1958, on which date while tightening a wheel on a truck he had slipped and sprained his back. Following the initial denial of his claim, on October 5, 1961, plaintiff made a request for reconsideration, claiming that he could not get employment because of his condition. Under the provisions of Section 221 of the Act, 42 U.S.C.A. § 421, the file of the plaintiff was referred to the Kentucky Bureau of Rehabilitation Service. On January 4, 1962, that Bureau, after review of the medical and non-medical evidence before it, made a report that the plaintiff was not disabled. Being advised of this decision, claimant requested and was given a hearing before an examiner of the Social Security Administration. Plaintiff here gives a history of many accidents" }, { "docid": "22917658", "title": "", "text": "shown before one is eligible for insurance benefits as “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 to be of long-continued and indefinite duration”. The identical definition in Section 216(i) (1), as amended, 42 U.S. C.A. § 416(i) (1), is applicable under Section 216 (i) (2), as amended, 42 U.S. C.A. § 416(i) (2), in determining the “period of disability”. Pursuant to Section 215(b), as amended, 42 U.S.C.A. § 415(b), such periods are excluded from the divisor in determining average monthly wages. This is the so-called “disability freeze”. See Kerner v. Flem-ming, 283 F.2d 916, 918 (2 Cir., 1960). Our duty is to determine whether the court below was correct in holding that there was substantial evidence in the record to support the finding of the Examiner that Hodgson was not precluded by his physical condition from sub stantial gainful activity. We conclude that the court below has erred in holding that there was substantial evidence to support this determination. As was stated by the United States District Court for the Eastern District of Pennsylvania in Klimaszewski v. Flemming, 176 F.Supp. 927, 931 (1959), “The test for disability consists principally of two parts: (1) a determination of the extent of the physical or mental impairment and (2) a determination whether that impairment résults in an inability to engage in any substantial gainful activity”. We are of the opinion that the Examiner has determined the extent of the impairment suffered by Hodgson. It is clear that Hodgson at best has an impaired right-leg function because of which he retains only a “residual usefulness” in that leg. That that residual usefulness is small indeed is apparent since he. has suffered a major loss of the mobility of the knee. Moreover, the court below noted that Hodgson’s personal physician described his arthritic condition as having grown progressively worse since the accident in 1955. We cannot uphold the Examiner in his conclusion that this physical impairment does not result in inability to engage in substantial" }, { "docid": "1232213", "title": "", "text": "credibility, motivation and medical evidence of impairment. Halsey v. Richardson, 441 F.2d 1230 (6th Cir. 1971); Dvorak v. Celebrezze, 345 F.2d 894 (10th Cir. 1965). Furthermore, a decision adverse to a plaintiff does not mean that his alleged pain was overlooked. Celebrezze v. Bolas, supra. The fact that a person cannot work without some pain and discomfort does not satisfy the test of disability. Adams v. Flemming, 276 F.2d 901, 904 (2nd Cir. 1960); Adams v. Richardson, 336 F.Supp. 983 (D.Kan.1972); Coomes v. Ribicoff, 209 F.Supp. 670, 672 (D.Kan.1962). Rather, the impairment must cause “inability to engage in any substantial gainful activity.” 42 U.S.C. §§ 416(i) (1) and 423(d); Easttam v. Secretary of HEW, 364 F.2d 509, 511 (8th Cir. 1966). “Asserted pain, in and of itself, is not necessarily disabling.” Easttam v. Secretary, supra, 1.c. 513. If an individual has an impairment which precludes heavy work or work which requires certain kinds of physical exertion, but it is shown that he can engage in other light forms of substantial gainful activity, a “disability” within the meaning of the Act has not been established. Woods v. Finch, 428 F.2d 469 (3rd Cir. 1970) ; Minton v. Finch, 419 F.2d 1328 (9th Cir. 1969); Johnson v. Finch, 437 F.2d 1321 (10th Cir. 1971). In the instant ease there is evidence in the record that plaintiff can engage in substantial gainful work and that this work not only exists in the national economy, but in sizable numbers in the St. Louis area where plaintiff lives. Although plaintiff had cervical spine fusion on April 12, 1971, the medical evidence in the record failed to establish that plaintiff has residuals of his cervical spine fusion or any other cervical spine abnormalities of such severity that he is unable to engage in any substantial gainful activity. Plaintiff was only “temporarily” disabled during the period of his hospitalization for the fusion and the period required for recovery; therefore, his disability did not last for twelve continuous months, as required by the Social Security Act. 42 U.S.C. §§ 416(i) (1) and 423(d)(1)(A). During plaintiff’s hospitalization at the" }, { "docid": "22320166", "title": "", "text": "that there be a “medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration”; (b) that there be an “inability to engage in any substantial gainful activity”; and (c) that the inability be “by reason of” the impairment. Poliak v. Ribicoff, 2 Cir., 1962, 300 F.2d 674, 677. 9. “Substantial gainful activity” has been described: “The activity in which a disabled claimant can be found to be able to engage must be both substantial and gainful and within his capacity and capability, realistically judged by his education, training and experience.” Ribicoff v. Hughes, 8 Cir., 1961, 295 F.2d 833, 837. “Such a determination requires resolution of two issues — what can applicant do, and what employment opportunities are there for a man who can do only what applicant can do ? Mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available.” Kerner v. Flemming, supra, p. 921 of 283 F.2d. 10. The emphasis is directed not to the average man but to the particular claimant’s capabilities. Ellerman v. Flemming, W.D.Mo., 1960, 188 F.Supp. 521, 526. 11. The word “any” in the statute “must be read in the light of what is reasonably possible, not of what is conceivable.” Klimaszewski v. Flemming, E.D.Pa., 1959, 176 F.Supp. 927, 932; Kohrs v. Flemming, supra, p. 736 of 272 F.2d. See also Jarvis v. Ribicoff, 6 Cir., 1963, 312 F.2d 707, and Hodgson v. Celebrezze, 3 Cir., 1963, 312 F.2d 260. The claimant argues that, although the district court noted there was some evidence opposing his position, this evidence is not substantial; that he was a steady, ambitious and successful life insurance employee; that insurance companies do not give money away; that his disability status with the Metropolitan was effected before the passage of the social security freeze provisions and thus forecast a consequent disadvantage under the Act; that the Metropolitan’s acceptance of his disability status is highly significant, citing Jacobson v. Folsom, S.D.N.Y., 1957, 158 F.Supp. 281, 287, because that insurer’s" }, { "docid": "8011764", "title": "", "text": "to obtain employment, it seems obvious that a finding of non-disability can be supported on less evidence than where a claimant has attempted unsuccessfully to obtain employment, or, having found employment, has been unable to carry it through. In the former case the evidence upon which the defendant could rely would be limited by the actual experience of the claimant. The matter is remanded to the defendant in order that further evidence be taken and findings made in accordance with the foregoing Memorandum. . There are four classes of “functional capacity” according to the American Heart Association: Class 1 — (No limitation of physical activity) Class 2 — (Slight limitation.) Class 3 — (Marked limitation) Class 4 — -(Complete limitation). . “Only those individuals who are totally disabled by illness, injury, or other physical or mental impairment which can be expected to be of long-continued and indefinite duration may qualify for the freeze. The impairment must be medically determinable and preclude the individual from performing any substantially gainful work. * * * The physical or mental impairment must be of a nature and degree of severity sufficient to justify its consideration as the cause of failure to obtain any substantially gainful work. Standards for evaluating the severity of disabling conditions * * * will reflect the requirement that the individual be disabled not only for Ms usual work but also for any type of substantially gainful activity.” Sen.Rep. No. 1987, 83d Cong., 2d Sess., pp. 20-21, H.R.Rep. No. 1698, 83d Cong., 2d Sess., p. 23, U.S.Code Cong. and Adm.News 1954, p. 3730. . E.g., Jones v. Celebrezze, 321 F.2d 192 (6th Cir. 1963) ; Farley v. Celebrezze, 315 F.2d 704 (3rd Cir. 1963); Butler v. Flemming, 288 F.2d 591 (5th Cir. 1961) ; Ribicoff v. Hughes, 295 F.2d 833 (8th Cir. 1961) ; Teeter v. Flemming, 270 F.2d 871, 77 A.L.R.2d 636 (7th Cir. 1959) ; Kerner v. Flemming, 283 F.2d 916 (2nd Cir. 1960) ; Paul v. Ribicoff, 206 F. Supp. 606 (D.Colo.1962) (discussion of distribution of burden of proof) ; Parfenuk v. Flemming, 182 F.Supp. 532 (D.Mass.1960) ;" }, { "docid": "3225653", "title": "", "text": "by claimant, and (4) claimant’s educational background, work history and present age. Underwood v. Ribicoff, supra. The record shows only the plaintiff’s own declaration that he was disabled within the meaning of the Social Security Act. We think such evidence, standing alone, is entitled to little weight. Furthermore, there is substantial evidence in the record on which the Secretary could have based his decision that the plaintiff was not precluded from engaging in all forms of substantial gainful work activity. While it is undoubtedly true that this plaintiff suffered from a slight mental impairment on or before March 31, 1950, yet it is well established that disability under the Social Security Act means the total inability to engage in any substantial gainful activity, including work of a less arduous nature than the applicant’s usual employment. Hicks v. Flemming, 302 F.2d 470 (5th Cir. 1962), cert. den. October 15, 1962, 371 U.S. 868, 83 S.Ct. 132, 9 L.Ed.2d 106; Witherspoon v. Celebrezze, 328 F.2d 311 (5th Cir. 1964). Thus, considering all the medical evidence, as well as the testimony of the plaintiff, we cannot in good conscience say that the Secretary’s finding with respect to plaintiff’s condition is not supported by substantial evidence of record. Accordingly, after a searching review of the record as a whole, it is clear that a reasonable mind could very well have reached the same conclusion as did the Secretary, that is, the evidence failed to establish the claim asserted. Therefore, the defendant’s motion for summary judgment must be granted. . The term “disability” is defined in Sections 216 (i) and 223 of the Social Security Act, as amended, to mean: “(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. The 1967 Amendments to the Act imposed the additional requirement that “(A) an individual * * * shall be determined to be under a disability only if his" }, { "docid": "22689218", "title": "", "text": "would provide relief for t*ie arthritic pains. In addition to the medical evidence and Mrs. Thomas’ description of her disability, the personnel manager of her last employer expressed an opinion, based upon his own observation and upon medical reports furnished in connection with Mrs. Thomas group life insurance, that she was not physically capable of performing any of the above duties [weaver or battery filler] nor any other job in a textile plant. The statute, 42 U.S.C.A. § 416 (i), defines “disability” as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration * * * ” While it casts upon the claimant the burden of proving that such a disability exists, it is not expected that this burden shall be carried to a point beyond a reasonable doubt. Ollis v. Ribicoff, 208 F.Supp. 644 (W.D.N.C. 1962). There really are two steps to a finding of disability: first, a finding of a “medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration” and, second, a finding that the impairment in fact causes an inability to “engage in any substantial gainful activity * * Butler v. Flemming, 288 F.2d 591, 593 (5th Cir. 1961). But in regard to the second step, the abstract “average” man is not the criterion. The inquiry must be directed to the particular claimant; not to people in general or even claimants in general. Pearman v. Ribicoff, 307 F.2d 533 (4th Cir. 1962). In Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962) Judge Bell, writing for tMg court) Hgted four rele_ vant elementg of proof; (1) Med¡cal data> (2) Expert medical opinion¡ (g) Testimony as to the claimant>s subjective pain> and (4) Claimant>s age and voea_ tional background. As we read the present record> uging Underwood as a guide> we conclude that the evidence overwhelmingly demonstrates the existence 0f a disability within the meaning of the Act, and that" }, { "docid": "13810956", "title": "", "text": "view has received judicial recognition. Stobaugh v. Flemming, D.Ark., Nov. 23, 1959 (CCH UIR Fed. para. 8769); Woolf v. Flemming, D.Tex., June 26, 1959 (CCH supra at para. 8725). Granted that persons with thrombophlebitis may be precluded from engaging in certain types of employment, as for example, jobs which require constant standing in one position for long periods of time, it does not follow that they must discontinue all work and spend the rest of their days lying on their backs with legs elevated. Cf. Kraynak v. Flemming, C.A.3, October 24, 1960 CCH supra, para. 8956, in which the Third Circuit sustained a finding that the claimant was not under a statutory disability even though his impairments made him unable to engage in work requiring a strong grip in the right hand or prolonged walking or standing. Further, an individual cannot be found to be under a disability where he can, with reasonable effort and safety to himself, achieve a substantial reduction of his symptoms. See Senate Report 1987, 83d Congress, 2d Sess., and section 404.1502(g) of Social Security Administration Regulations No. 4 [20 C.F.R. 404.1502(g)]. “Based upon the entire record, the Appeals Council concludes and finds that the claimant has not established being under a ‘disability’ from a time on or prior to December 8, 1960, the expiration of the effective period of his application filed on September 8, 1960. “It is the decision of the Appeals Council that the claimant is not entitled to the establishment of a period of disability or to disability insurance benefits under sections 216 (i) and 223, respectively, of the Social Security Act, as amended. The decision of the Hearing Examiner is affirmed.” The plaintiff has met the special earnings requirements for disability purposes as of the date he alleged the onset of his disability. The plaintiff contends that the defendant Secretary failed to adduce any evidence of the type of work available to the plaintiff, assuming he was capable of performing it, nor was there substantial evidence to support the conclusion that the plaintiff was not physically impaired within the requirements of" }, { "docid": "23531978", "title": "", "text": "All of them are factually distinguishable. The judgment is affirmed. . In a previous claim filed on February 15, 1957, appellant sought to establish disability as of April 12, 1949. This claim was denied, and the denial was affirmed by final decision of a hearing examiner dated April 8, 1958. Appellant’s action for a review of that decision was dismissed on the ground that it was not timely filed. . The term “disability” is defined as “ * * * (A) 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 to be of long-continued and indefinite duration, or (B) blindness; and the term ‘blindness’ means central visual acuity of 5/200 or less in the better eye with the use of a correcting lens. * * * ” (42 U.S.C. § 416(i) (1)). . The Hearing Examiner’s Decision recites that appellant appeared to be entitled to the regular old-age pension starting February 5, 1962, except for the fact that he had not filed formal application as required by the Act and regulations. The right to old-age pension benefits was not determined by the district court and is not before this court. . This does not mean that it was intended that the courts should abdicate their conventional juricial function to review (Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456); and where the “administrative decision is based upon conclusions not reasonably reached upon due consideration of all the relevant issues presented” (Jacobson v. Folsom, S.D.N.Y. 1957, 158 F.Supp. 281, 285), or applies an arbitrary standard (Flemming v. Lindgren, 9 Cir.1960, 275 F.2d 596, 597), the court may properly reject the agency’s decision, . Under the express terms of the Act a reasonable showing of permanence of the disability is required. Bradey v. Ribicoff, 4 Cir. 1962, 298 F.2d 855. . These findings are required when it is found that the claimant is unable to engage in bis usual occupation, but the Secretary concludes" }, { "docid": "21321929", "title": "", "text": "considerable extent. By the lay and medical testimony, it is likewise established that the disability imposes significant limitation on his ability to walk, stand, lift, bend, climb and pull. He was refused reemployment at his old job because of those limitations, and his attempts to work at other, less strenuous jobs — Watkins Products salesman, and work at a fish bait stand — have been unsuccessful for the same reason. Crucial to the determination of the question whether he has an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration,” 42 U.S.C.A. § 423(c) (2), is resolution of the double-edged inquiry (1) what can Claimant do, and (2) what employment opportunities are available to a man who can only do what Claimant can do ? Hayes v. Celebrezze, 5 Cir., 1963, 311 F.2d 648, 654; Hicks v. Flemming, 5 Cir., 1962, 302 F.2d 470; Kerner v. Flemming, 2 Cir., 1960, 283 F.2d 916. Aside from a short, conclusory statement near the end of the Hearing Examiner’s Decision, it is nowhere apparent from the record that the Hearing Examiner addressed himself to and resolved the crucial factors. Is Claimant, for example, really suffering the pain complained of? Does it really keep him from working? In view of his pain, the admitted medical limitations and his efforts to obtain and hold jobs, what kind of work is really reasonably open to him ? It is clear that when he does do so, his findings are given finality and are not to be reversed or modified by the Courts. Celebrezze v. Kelly, 5 Cir., 1964, 331 F.2d 981. But we likewise recognized in Kelly that the Examiner must address himself to the problem and make “findings and conclusions, in which he takes all of these factors into consideration.” We realize that the Act is not an unemployment compensation statute and that Claimant’s failure to obtain a job must result from his physical condition, not from widespread unemployment. Celebrezze" }, { "docid": "23663247", "title": "", "text": "was not disabled under the Social Security Act. This decision became the final decision of the Secretary. Pursuant to 42 U.S.C.A. § 405(g), Ray filed the present action in the United States District Court for review of the Secretary’s decision. The District Court found substantial evidence in the record to support the Secretary’s position and affirmed the decision. This appeal followed. When Ray applied for the period of disability he was forty-five years old. He applied for a “disability freeze” rather than disability benefits as the 1954 Social Security Act which was then in effect provided thát he was not entitled to disability benefits until he be- ; came fifty years of age. 42 U.S.C.A. § 423(a) (1) (B), (1954 Act). Since the time he filed his application Congress has amended section 423 and eliminated all age requirements for benefits if applicant is disabled within the meaning of the Act. The purpose of seeking a “disability freeze” under section 416(i) (2) was to protect his old age and survivor’s insurance rights against impairment of his earning capacity through total disability before reaching retirement age. Pruitt v. Flemming, 182 F.Supp. 159 (S.D.W.Va.1960). Once the disability was established, the period during which he was disabled would be eliminated from his earnings record in computing his average monthly wage upon which the amount of his benefits would be based when he reached retirement age. Bailey v. Ribicoff, 206 F.Supp. 212 (S.D.W.Va.1962). To establish the disability under 42 U.S.C.A. § 416(i) (1), it was incumbent upon Ray to prove a medically determinable physical or mental impairment which could be expected to result in death or to be of long-continued and indefinite duration and that the impairment prevented him from engaging in any substantial gainful activity. Thomas v. Celebrezze, 331 F.2d 541, 545 (4 Cir. 1964). The hearing examiner and the Appeals Council in their decisions concluded that Ray had shown that he had a permanent physical impairment but that the impairment did not prevent him from engaging in any substantial gainful activity. The evidence disclosed that Ray was born January 22, 1912; he attended" }, { "docid": "22576903", "title": "", "text": "SOBELOFF, Chief Judge. On April 7, 1961, Winston P. Cyrus of Lynchburg, Virginia, filed an application with the Social Security Administration for disability insurance benefits under sections 216 (i) and 223 of the Social Security Act, 42 U.S.C.A. §§ 416(i) and 423. Since then he has been engaged in numerous proceedings in an effort to obtain the benefits of the Act. The Secretary here appeals from the order of the District Court which (1) determined that the Secretary’s findings adverse to Cyrus’ claim were not supported by substantial evidence on the record as a whole, (2) granted Cyrus’ motion for summary judgment, and (3) held him entitled to disability insurance benefits. The statutory test for determining a claimant’s right to benefits under the Act is whether he is under a “disability,” defined by section 216(i), 42 U.S.C.A. § 416 (i), as “inability to engage in any substantial gainful activity by reason of any medically determinable physical impairment which can be expected to result in death or to be of long-continued and indefinite duration * * As this court recently stated in Thomas v. Celebrezze, 331 F.2d 541, 545 (4th Cir. 1964) : “There really are two steps to a finding of disability: first a finding of a ‘medically determinable physical or mental impairment * * * ’ and, second, a finding that the impairment in fact causes an inability to ‘engage in any substantial gainful activity * * *.’ ” The present controversy revolves around the second step, and it is against its background that we examine the evidence of (1) objective medical facts, (2) expert medical opinion, (3) subjective evidence of pain and disability and, most important for purposes of this case, (4) claimant’s age, educational background, and work history. Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962). Born on June 21, 1911, and thus 49 years of age during the critical period here in question, Cyrus grew up on a farm, and has had a fourth grade education. In 1929, he left the farm and for a period of six months worked in a cotton mill," }, { "docid": "16620737", "title": "", "text": "Ewing relating to the plaintiff’s heart and kidney are contradicted by the findings of the other doctors and by the clinical findings in evidence. Admittedly, the plaintiff has severe hypertension. The question is whether this condition alone or in combination with the other impairments found to exist above renders the plaintiff disabled within the terms of the act. In order to be “disabled” within the terms of Sections 216 (i) and 223 of the Social Security Act, 42 U.S.C.A. §§ 416 (i), 423, the plaintiff must prove “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 to be of long-continued and indefinite duration.” The Secretary found that the plaintiff “ * * * failed to show that she was rendered continuously unable to engage in any substantial gainful employment, because of a medically determinable physical or mental impairment, at any time prior to and including the date she filed her application for disability benefits,” and decided that the plaintiff is not entitled to have a period of disability established under section 216(i) of the Act as amended [42 U.S.C.A. § 416] and is not entitled to disability insurance benefits under section 223 of the Act, [42 U.S.C.A. § 423]. If there is substantial evidence in the record to support the finding of the Secretary, the District Court cannot set it aside. 42 U.S.C.A. § 405(g). “If there is only a slight preponderance of evidence on one side or the other, the Secretary’s finding must be affirmed ” Underwood v. Ribicoff (4th Cir. 1962) 298 F.2d 850, 851. The factors to be considered in determining whether a plaintiff is disabled within the meaning of the statute were set out in the recent case of Underwood v. Ribicoff, supra, where the court said at page 851: “In this case, there are four elements of proof to be considered in making a finding of Claimant’s ability or inability to engage in any substantial gainful activity. These are: (1) the objective medical facts, which are the" }, { "docid": "17364486", "title": "", "text": "(2d Cir.1960). Where a claimant has shown the statutory degree of disability in his existing condition, the question whether he could reasonably mitigate his sufferings has the sound of an affirmative defense. At least in the particular circumstances of this case, where the Appeals Council chose of its own volition to launch the “study,” it does not seem too much to demand that no less than a preponderance of the evidence should justify reversing the Examiner. Of course, it is to be hoped in the last analysis that the grant or denial of disability benefits, under a statute calling for liberal construction (see, e. g., Dvorak v. Celebrezze, supra, 345 F.2d at 897), will not be determined on the kind of jeweler’s-scale calculations called to mind by notions about the burden of proof. What is wanted is “substantial evidence” and a lawfully reasoned judgment showing whether Mr. Lugo, viewing him and his illnesses in the light of what the agency can reasonably know about the circumstances that make him the way he is, should be deemed “disabled” within the statute’s meaning. The agency’s order is reversed and the matter is remanded for reconsideration, and such further proceedings as the Secretary may deem appropriate, in accordance with this opinion. Cf. Stephens v. Ribicoff, 307 F.2d 304, 306 (4th Cir.1962); Kerner v. Flemming, 283 F. 2d 916 (2d Cir.1960). So ordered. . 42 U.S.C. § 423(c) (2), during the times with which we are concerned, defined the term “disability” to mean “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 to be of long-continued and indefinite duration.” The same definition appeared in 42 U.S.C. § 416 (i). This definition and other aspects of the statute were amended by Title III of the Social Security Amendments of 1965, 79 Stat. 286, 361 et seq. (see the 1965 Cumulative Annual Pocket Part of 42 U.S.O.A.). The parties have not suggested, and we have not observed, any respects in whieh the amendments affect the instant case. ." }, { "docid": "241739", "title": "", "text": "her claims of limited neck movement, stiffness, and pain, the only restriction that any of the various physicians whom she had consulted had placed upon her activity was one by one physician that she should be careful not to lift objects weighing over 25 pounds. It is fundamental that in order to qualify under Sections 223 and 216 of the Social Security Act for disability insurance benefits and for the establishment of a period of disability, an applicant must show that the claimed disabling condition is one which renders the applicant unable “to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration,” 42 U.S.C. §§ 416 (i) (1), 423(c) (2); and of course the applicant has the ultimate burden of persuasion, Kerner v. Flemming, 283 F.2d 916, 920-921 (2 Cir. 1960). Also, upon review, a court’s function is limited to that of determining whether the Secretary’s findings as to the relevant facts are supported by substantial evidence, 42 U.S.C. § 405(g); Celebrezze v. Bolas, 316 F.2d 498 (8 Cir. 1963). In the present case the hearing examiner’s conclusion, as paraphrased by the district court, was that the medical evidence reflected “an undramatically mild underlying pathology, wholly disproportionate to the massive disability claimant imposes upon it.” It is no doubt true, as appellant contends, that this court has rejected the view that a claimant will be said to be so disabled as to qualify for disability benefits only if an “average man,” suffering from the same objective medical symptoms as the claimant, would be disabled under the statute, for we have earlier indicated that the subjective element of pain is an important factor to be considered in determining disability, Ber v. Celebrezze, 332 F.2d 293, 298, 300 (2 Cir. 1964). However, assuming arguendo that in the present case appellant demonstrated a “medically determinable physical or mental impairment which can be expected * * * to be of long duration,” we •nevertheless believe that there was substantial evidence that appellant’s" }, { "docid": "23525506", "title": "", "text": "“disability,” as distinguished from their duration. Our examination of the record of the proceedings instituted by James in 1960 satisfies us that the question of what physical or mental impairments were suffered by James prior to December 31,1959 and whether they were sufficiently severe to constitute “disability” was fully litigated, and that, in 1965, his claim for a determination of disability and disability benefits was the same as his 1960 claim. Ordinarily, a final determination by the Secretary that the physical and mental impairments claimed in 1960 were not sufficiently severe to constitute “disability” was, as the trial examiner and the district judge both decided, res judicata of the 1965 claim. Hobby v. Hodges, 215 F.2d 754 (10 Cir. 1954); Phillip v. Ribicoff, 211 F.Supp. 510 (E.D.Pa.1962), aff’d sub nom., Phillip v. Celebrezze, 319 F.2d 530 (3 Cir. 1963); Moore v. Celebrezze, 252 F.Supp. 593 (E.D.Pa.1966). Certainly, the district judge’s affirmance of the Secretary’s denial of the 1960 claim was res judicata of a reapplication in 1965 based upon facts and matters theretofore litigated. Accordingly, the judgment of the district court is Affirmed. . Sections 216(i) and 223(c) (2), as they existed prior to 1965, defined “disability” to mean “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can he expected to result in death or to he of long-continued and indefinite duration.\" (emphasis supplied) 42 U.S.C.A. §§ 416(i) and 423 (c) (2). The 1965 amendment substituted the phrase “which has lasted or can be expected to last for a continuous period of not less than 12 months,” for the italicized phrase in the previous sections. . So far as pertinent, the regulation provides : “ * * * a decision * * * of the Appeals Council which is otherwise final *. * * may be reopened; * * * * * (b) After such 12-month period [12 months from notice of initial determination], but within 4 years after the date of notice of the initial determination * * * to the party to such determination, upon a finding" }, { "docid": "23379499", "title": "", "text": "opinion following a regular form currently in use in the mentioned District Court. This opinion assumed that plaintiff’s proofs made out a case that the said Justice was disabled from doing the work which he had been doing prior to his application for social security benefits, to wit, coal mining. From this holding, the District Judge, citing cases from this court, held that the plaintiff should prevail because the Secretary had not shown that work which plaintiff could do in substitution for his regular employment was available. Hall v. Flemming, 289 F.2d 290 (CA 6, 1961); King v. Flemming, 289 F.2d 808 (CA 6, 1961); Prewitt v. Celebrezze, 330 F.2d 93 (CA 6, 1964); and Thompson v. Celebrezze, 334 F.2d 412 (CA 6, 1964). We reverse the District Judge because we are satisfied that the examiner’s findings in this case were not erroneous and that the plaintiff failed to make out a case that he was disabled within the meaning of the applicable statute. Under this statute, the term disability is defined as “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 to be of long-continued and indefinite duration.” 42 U.S.C.A. § 416(i) (1) (A). Upon plaintiff’s request for social security benefits, his application, pursuant to Section 221 of the Social Security Act, 42 U.S.C.A. § 421, was referred to the Kentucky Bureau of Rehabilitation Services. On November 15, 1962, that Bureau issued a report, signed by a physician and a disability examiner, stating that plaintiff’s disability was an ulcer, controllable by diet. This report contained the medical examiner’s observations that, “Patient appeared to to be in excellent physical condition. * * * clinical findings indicate that the applicant has an ulcer. He also complains of his back hurting. There was no evidence of any appreciable orthopedic impairment. He moves all of his joints without restriction, although he may have some pain. With careful diet and medication the applicant should be able to keep his ulcer under control, at least to the" }, { "docid": "19053227", "title": "", "text": "engaged in her usual type of occupation” finds full support in the record. Accordingly, defendant’s motion for summary judgment is granted; plaintiff’s cross-motion is denied. . 42 U.S.C. § 405(g). . 42 U.S.C. § 423 in part reads: “(d) (1) The term ‘disability’ means— (A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; * * * (2) For purposes of paragraph (1) (A) — (A) an individual * * * shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy * * . Cf. Flack v. Cohen, 413 F.2d 278, 280 (4th Cir. 1969) ; Miracle v. Celebrezze, 351 F.2d 361, 383 (6th Cir. 1965). . 42 U.S.C. § 405(g). Rinaldi v. Ribicoff, 305 F.2d 548, 549, 550 (2d Cir. 1962) ; Kerner v. Flemming, 283 F.2d 916, 921 (2d Cir. 1960) ; cf. Adams v. Flemming, 276 F.2d 901 (2d Cir. 1960). . Compare Adama v. Flemming, 276 F.2d 901, 903-904 (2d Cir. 1960) with Ber v. Celebrezze, 332 F.2d 293, 300 (2d Cir. 1964). . See Adams v. Flemming, 276 F.2d 901, 904 (2d Cir. 1960) ; see also Gotshaw v. Ribicoff, 307 F.2d 840, 844-845 (4th Cir. 1962), cert. denied sub nom. Heath v. Celebrezze, 372 U.S. 945, 83 S.Ct. 938, 9 L.Ed.2d 970 (1963) ; Poliak v. Ribicoff, 300 F.2d 674, 677 (2d Cir. 1962) ; Graham v. Ribicoff, 295 F.2d 391, 394 (9th Cir. 1961). . See, e. g., Dupkunis v. Celebrezze, 323 F.2d 380, 381 n. 1 (3d Cir. 1963) ; Gotshaw v. Ribicoff, 307 F.2d 840, 845 (4th Cir. 1962) ; Adams v. Flemming, 276 F.2d 901, 904 n." } ]

[ { "docid": "23218325", "title": "", "text": "Court in Norske was whether the surplus of assets after full payment to claimants from class number one above should be distributed first to domestic creditors or turned over to the primary receiver for general distribution. The Court in Norske held that there is no principle of equity, comity or public policy which authorizes the application of funds in the hands of the Superintendent of Insurance to payment in full of local creditors before transmission to the receiver for general distribution. Norske, 242 N.Y. at 163, 151 N.E. 159 (emphasis supplied). The New York State Court of Appeals reasoned that the ordinary rule of distribution of the assets of an insolvent is equality among creditors of the same class and this rule requires transmission of this surplus after full payment to the first class from the ancillary receiver to the primary receiver for distribution pro rata among the insurance company’s creditors. Id., 242 N.Y. at 164, 151 N.E. 159. In addition, Section .304 does not create a full case for administration, see H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 324-325 (1977), and it has always been contemplated that United States ancillary proceedings might be used by foreign liquidators to avoid American preferences and protect assets for foreign administration. See Ban-que de Financement v. First National Bank of Boston, 568 F.2d 911 (2d Cir.1977). It is abundantly clear that the principle of comity is to be exercised in the instant case. Analysis of this principle has traditionally favored its regular application unless egregiously unjust consequences would flow from its implementation. That which was said by one commentator is as true today as when he articulated it in 1888: “It is obvious that, in the present state of commerce and of communication, it would be better in nine cases out of ten that all settlements of insolvent debtors with their creditors should be made in a single place, better for the creditors, who would thus share alike and better for the debtor because all his creditors would be equally bound by his discharge.” Lowell, John, Conflict of Laws as Applied to Assignments" } ]

[ { "docid": "11429935", "title": "", "text": "granting an ancillary petition, or here, dismissing a chapter 11 case, another may compel the opposite conclusion. In the end, a court must weigh all of the relevant factors in reaching its decision. B. Comity We begin the analysis with comity. See 11 U.S.C. § 304(c)(5). “ ‘Comity’ is a doctrine that encourages deference to foreign laws and judgments if macro systemic concepts, such as due process and impartiality, are present in the foreign proceedings.” Collier ¶ 304.08[5][b], at 304-37. The Second Circuit has often underscored the importance of extending comity in foreign bankruptcy proceedings, see, e.g., Finanz AG Zurich v. Banco Economico S.A., 192 F.3d 240, 246 (2d Cir.1999); Maxwell Communication Corp. v. Societe Generale (In re Maxwell Communication Corp.), 93 F.3d 1036, 1048 (2d Cir.1996); Allstate Life Ins. Co. v. Linter Group Ltd., 994 F.2d at 999; Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452, 458 (2d Cir.1985), emphasizing that “deference to foreign insolvency proceedings will, in many cases, facilitate ‘equitable, orderly and systematic’ distribution of the debtor’s assets.” In re Maxwell Communication Corp., 93 F.3d at 1048; Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d at 458 (“American courts have consistently recognized the interest of foreign courts in liquidating or winding up the affairs of their own domestic business entities.”) Here, we need not dwell at length on this factor. The English insolvency laws were examined and compared to the Bankruptcy Code by Chief Judge Brozman in In re Brierley, 145 B.R. 151, 164-66 (Bankr.S.D.N.Y.1992). Her comparison confirms that English law is consistent with our own concepts of due process and impartiality. Moreover, the laws of the United Kingdom, and specifically its insolvency laws, are generally afforded comity, as are the insolvency laws of the other common law jurisdictions derived from British law. Lindner Fund, Inc. v. Polly Peck Int’l PLC, 143 B.R. 807, 810 (S.D.N.Y.1992); In re Tam, 170 B.R. 838, 845 (Bankr.S.D.N.Y.1994)(collecting cases); In re Brierley, 145 B.R. at 162 n. 5 (same). Ionica does not dispute this basic proposition, but argues that the Court-approved Protocol moots the comity concerns" }, { "docid": "19337913", "title": "", "text": "Dry Cargo A.B., 825 F.2d 709, 713-14 (2d Cir.1987); see also In re Maxwell Communication Corp., 93 F.3d at 1041 (“Simultaneous proceedings in different countries, especially in multi-party cases like bankruptcies, can naturally lead to inconsistencies and conflicts.”); Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452, 457-58 (2d Cir.1985) (“The extending of comity to a foreign bankruptcy proceeding ... enables the assets of a debtor to be dispersed in an equitable, orderly, and systematic manner, rather than in a haphazard, erratic or piecemeal fashion.”). As a result, “American courts regularly defer to such actions.” Finanz AG Zurich, 192 F.3d at 246; see also Cunará S.S. Co., 773 F.2d at 458 (“American courts have consistently recognized the interest of foreign courts in liquidating or winding up the affairs of their own domestic business entities.”). Indeed, Congress has recognized the special considerations of bankruptcy proceedings by enacting section 304 of the Bankruptcy Code, 11 U.S.C. § 304, which permits a representative of a foreign debt- or to file a petition “ancillary to a foreign proceeding” with a U.S. bankruptcy court. A bankruptcy court presented with such a petition is authorized to enjoin any action against “a debtor with respect to property involved in [the] foreign proceeding” or to order any “other appropriate relief.” 11 U.S.C. § 304(b)(1)(A), (b)(3). Bankruptcy courts are explicitly instructed by the statute to consider “comity” as a factor when deciding whether to grant relief under § 304(b). 11 U.S.C. § 304(c)(5). The Second Circuit has characterized § 304(b) as a “preferred remedy” for foreign debtors, given the “historic preference which favors bankruptcy adjudications by a judge with experience in bankruptcy law.” Cunard S.S. Co., 773 F.2d at 455; see also RBS Fabrics Ltd. v. G. Beckers & Le Hanne, 24 B.R. 198, 200 (S.D.N.Y.1982) (ancillary proceeding under § 304 is “preferrable procedure” for determining where creditors’ claims should be adjudicated). Since neither of the Vrooms is a “foreign representative” of the Canadian debtor within the meaning of the Bankruptcy Code, 11 U.S.C. § 101, the Vrooms apparently would not themselves have been able to avail" }, { "docid": "3733190", "title": "", "text": "law, the Ninth Circuit has held that the Code does not codify either theory. See Simon, 153 F.3d at 998. Rather, the Ninth Circuit has stated that “[i]f any philosophy can be attributed to the structure of the Code it is that of deference to the country where the primary insolvency proceeding is located, including the United States if the plenary proceeding is located here, and flexible cooperation in administration of assets.” Id. at 998 (emphasis added). While neither § 304(c) nor its legislative history allocates the weight to be given to these six factors, many courts view comity as the most significant factor because the other factors (aside from the fresh start element) “are inherently taken into account when considering comity.” Koreag, 130 B.R. at 712; see also In re Culmer, G.A.D., 25 B.R. 621, 633-34 (Bankr.S.D.N.Y.1982); Gee, 53 B.R. at 901 (“Although comity is only one of six factors to be considered in determining whether to grant relief, it often will be the most significant, as here, where it serves as the crux of debtor’s argument.”); but see In re Papeleras Reunidas, S.A., 92 B.R. 584, 594 (Bankr.E.D.N.Y.1988) (refusing to follow cases affording comity greater weight than the other five factors). “[U]nder general principles of comity as well as the specific provisions of section 304, federal courts will recognize foreign bankruptcy proceedings provided the foreign laws comport with due process and fairly treat the claims of local creditors.” Victrix S.S. Co., 825 F.2d at 714. Deferring to a foreign bankruptcy case is appropriate when the foreign law is not “repugnant to American laws and policies.” In re Davis, 191 B.R. 577, 587 (Bankr.S.D.N.Y.1996) (citing Brierley, 145 B.R. at 166; Gee, 53 B.R. at 904); see also Cunara, 773 F.2d at 459 (stating that the court should protect American creditors from having to participate in foreign proceedings where their claims will receive unfair treatment). Here, the bankruptcy court granted comity in favor of the British insolvency proceeding because the British insolvency laws are fundamentally similar to the Code. Therefore, American creditors should receive fair treatment under British law. This" }, { "docid": "1178269", "title": "", "text": "and vacating the attachment in the Fortunato action; (d) directing that the $2 million Trust, after payment of any fees and expenses found to be owing to Bankers Trust, be transferred to and maintained in a segregated account to be held by Petitioners in trust for the benefit of all beneficiaries under the Trust agreement to be distributed pro rata only to the United States beneficiaries of the Trust after final determination by the Petitioners or the Tel Aviv District Court of the allowable claims of such beneficiaries. The relief set out in subparagraph (a) above is not contested. The balance of the relief is. Fortunato contends that the Trust is not property of the Israel Re estate for bankruptcy purposes and, for four independent reasons, is therefore beyond the reach of the Israeli liquidation court and the Petitioners. He claims, first, that under the Bankruptcy Code and Israeli law, trusts are not considered property of a debtor’s estate. Second, he says, the Trust agreement expressly contemplated the potential insolvency of Israel Re, providing that the security furnished by the Trust survive such an event. Third, he states, the Trust’s sole asset is a letter of credit in which Israel Re holds no interest. Fourth, he urges, the McCarran-Ferguson Act, 15 U.S.C.A. 1011 et seq., precludes application of section 304 because an injunction would invalidate, impair, or supersede the applicable laws of New York and New Jersey. III. A. Section 30b The purpose of a section 304 filing is to prevent piecemeal distribution of assets in the United States by means of legal proceedings initiated in domestic courts by local creditors. In re Koreag, Controle et Revision S.A., 961 F.2d 341, 348 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 188, 121 L.Ed.2d 132 (1992); Victrix S.S. Co. S.A. v. Salen Dry Cargo A.B., 825 F.2d 709, 713-14 (2d Cir.1987); Cunard S.S. Co. v. Salen Reefer Services, A.B., 773 F.2d 452, 454-55 (2d Cir.1985). Section 304(a) authorizes a “foreign representative” in a “foreign proceeding” to commence a case ancillary to that proceeding in a United States bankruptcy court to" }, { "docid": "1793309", "title": "", "text": "Since the enactment of the Bankruptcy Code in 1978, debtors in a foreign proceeding have had, as an alternative to a plenary filing here, the ability to seek more limited relief in a United States proceeding that is ancillary to a foreign case. Section 304 provides a “flexible” remedy that is, in many circumstances, less expensive and cumber some than the opening of a plenary proceeding here. See In re Culmer, 25 B.R. 621 (Bankr.S.D.N.Y.1982). Section 304 is founded on the concept that there is one “main proceeding,” presumably opened in the country of the principal place of business or “center of main interests” of a multinational enterprise, and subordinate ancillary proceedings that are commenced for more limited purposes in other jurisdictions. See In re Treco 240 F.3d at 153-54; also Koreag, Controle et Revision S.A. v. Refco F/X Assocs., Inc. (In re Koreag, Controle et Revision S.A.), 961 F.2d 341, 348 (2d Cir.1992). It represents an effort to rationalize the administration of the insolvency of multinational enterprises. As beneficial as § 304 may be, there is nothing in the Bankruptcy Code to suggest that foreign entities cannot open a full proceeding or that a § 304 ancillary case is a preferred alternative for a foreign enterprise. See Samuel L. Bufford, et al., International Insolvency 28 (Federal Judicial Center 2001). Section 303(b)(4) of the Code expressly permits a foreign representative to commence an involuntary plenary proceeding if necessary in order to take control of the United States assets of the foreign estate. See In re Axona Int'l Credit & Commerce, Ltd., 88 B.R. at 606. There are also a handful of cases, including In re Axona, where the courts have considered whether to open a full U.S. proceeding or to sustain a § 304 case brought by a foreign representative. In In re Axona, the foreign representative brought a plenary proceeding and, when it had served its purposes, successfully dismissed it in favor of a less expensive and burdensome § 304 proceeding, over the strong objection of a U.S. creditor. In In re Gee, 53 B.R. 891 (Bankr.S.D.N.Y.1985), the court" }, { "docid": "11429934", "title": "", "text": "the tension between deferring to foreign proceedings and protecting the rights of local creditors, 2 Lawrence P. King et al., Collier on Bankruptcy ¶ 304.08[5][b], at 304-37 (rev. 15th ed.í999)(“CollieP’); see Daniel M. Glosband et al, Claims and Priorities in Ancillary Proceedings Under Section 30k, 17 Brook. J. Int’l L. 477, 485 (1991 )(“Claims and Priorities”), the so-called universality and territoriality approaches, respectively, to transnational bankruptcies. Stuart A. Krause et al., Relief Under Section 30k of the Bankruptcy Code: Clarifying the Principal Role of Comity in Transnational Insolvencies, 64 Fordham L.Rev. 2591, 2592 (1966)(“ Relief Under Section 30k”); see In re Treco, 239 B.R. 36, 41 (S.D.N.Y.1999)(“Treco II”); In re Hourani, 180 B.R. 58, 64 n. 9 (Bankr. S.D.N.Y.1995). These factors are guidelines, not requirements. They are designed to give the Court maximum flexibility, and permit it to “make the appropriate orders under all of the circumstances of each case, rather than being provided with inflexible rules.” H.R.Rep. No. 95-595, at 324-25 (1977); S.Rep. No. 95-989, at 35 (1978). Thus, although one factor may support granting an ancillary petition, or here, dismissing a chapter 11 case, another may compel the opposite conclusion. In the end, a court must weigh all of the relevant factors in reaching its decision. B. Comity We begin the analysis with comity. See 11 U.S.C. § 304(c)(5). “ ‘Comity’ is a doctrine that encourages deference to foreign laws and judgments if macro systemic concepts, such as due process and impartiality, are present in the foreign proceedings.” Collier ¶ 304.08[5][b], at 304-37. The Second Circuit has often underscored the importance of extending comity in foreign bankruptcy proceedings, see, e.g., Finanz AG Zurich v. Banco Economico S.A., 192 F.3d 240, 246 (2d Cir.1999); Maxwell Communication Corp. v. Societe Generale (In re Maxwell Communication Corp.), 93 F.3d 1036, 1048 (2d Cir.1996); Allstate Life Ins. Co. v. Linter Group Ltd., 994 F.2d at 999; Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452, 458 (2d Cir.1985), emphasizing that “deference to foreign insolvency proceedings will, in many cases, facilitate ‘equitable, orderly and systematic’ distribution of the debtor’s assets.” In" }, { "docid": "1178271", "title": "", "text": "protect the administration of the foreign proceeding. Here, it is conceded that the Israel Re winding up is a foreign proceeding and that the Petitioners are foreign representatives appointed by the Tel Aviv court. In enacting section 304, which had no predecessor under the former Bankruptcy Act, Congress provided a mechanism for the courts in this country to aid foreign courts and accommodate the increasing number of foreign insolvency proceedings having extraterritorial effects within the United States. Universal Casualty & Surety Co. Ltd. v. Gee (In re Gee), 53 B.R. 891, 896 (Bankr.S.D.N.Y.1985). Congress commanded that the court explore certain enumerated factors to decide whether relief ought be granted under the section. If I find that those factors contained in section 304(c) militate in favor of granting an ancillary petition to best assure an economical and expeditious administration of the foreign estate, I may enjoin commencement or continuation of an action against the foreign debtor with respect to property involved in the foreign proceeding or against the property. 11 U.S.C. § 304(b)(1). That the factors in section 304(e) point to the propriety of granting an ancillary petition does not mean in and of itself that I am free to grant any conceivable type of relief. For I may order turnover only of property of the foreign estate or its proceeds, whereas I may enjoin actions against the property of the foreign estate and also against property involved in the foreign proceeding. Compare 11 U.S.C. § 304(b)(1) with 11 U.S.C. § 304(b)(2); see In re Brierley, 145 B.R. 151, 168 (Bankr.S.D.N.Y.1992). In the turnover context, when an adverse claimant raises a plausible dispute concerning the ownership of the property sought to be repatriated, the court first must apply local law, in this case, the law of New York , to determine whether the debtor has a valid ownership interest in the property. Second, the court must apply the law of the foreign forum to determine if the property is part “of [the] estate” of the debtor. Koreag, 961 F.2d at 348-50. Although the estate of a foreign debt- or is defined" }, { "docid": "22130871", "title": "", "text": "in terms of (1) the New York law of constructive trusts, and (2) the New York Uniform Commercial Code. A. Threshold Determination of Ownership Issue. Section 304(a) authorizes a “foreign representative” in a “foreign [bankruptcy] proceeding” to commence a “[c]ase ancillary to [that] proceeding” in a United States bankruptcy court to protect the administration of the foreign proceeding. The purpose of a § 304 petition is to prevent the piecemeal distribution of assets in the United States by means of legal proceedings initiated in domestic courts by local creditors. Victrix S.S. Co., S.A. v. Salen Dry Cargo A.B., 825 F.2d 709, 713-14 (2d Cir.1987); Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452, 454-55 (2d Cir.1985). A bankruptcy court is given broad latitude in fashioning an appropriate remedy in a § 304 proceeding. In re Axona Int’l Credit & Commerce Ltd., 88 B.R. 597, 606 (Bankr.S.D.N.Y.1988), aff'd, 115 B.R. 442 (S.D.N.Y.1990), appeal dismissed, 924 F.2d 31 (2d Cir.1991); In re Culmer, 25 B.R. at 624; see also S.Rep. No. 989, 95th Cong., 2d Sess. 35 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5821 (§ 304(c) “guidelines are designed to give the court the maximum flexibility in handling ancillary cases\"). We nonetheless disagree with the bankruptcy court’s ruling in this case that a turnover was properly ordered upon the de minimis showing that the disputed funds in the Account were “included in the property involved in Mebco’s liquidation proceedings, ... [and] located in this district.” 130 B.R. at 712. The court rejected the notion that it was required to make a threshold finding as to the ownership of the funds prior to issuance of the turnover order. In our view, this was not a proper reading of § 304(b)(2). The applicable distinction is drawn in Lawrence P. King, 2 Collier on Bankruptcy 11 304.01, at 304-3 (15th ed. 1992) (emphasis added): “For purposes of section 304, the estate of a foreign debtor is defined by the law of the jurisdiction in which the foreign proceeding is pending, with other applicable law serving to define the estate’s interest in particular property.”" }, { "docid": "13919173", "title": "", "text": "local creditors of assets located here. See 11 U.S.C.A. § 304, Historical and Revision Notes at 225 (West 1979). Whether the Court grants ancillary jurisdiction depends on the factors enumerated in § 304(c) which include assurance of economical and expeditious administration of the estate; just treatment of all claim holders; protection of United States claim holders against prejudice and inconvenience in the processing of claims in such foreign proceedings; prevention of preferential or fraudulent dispositions of property, distribution of proceeds substantially in accord with the order prescribed in the Bankruptcy Code; and comity. Comity is often considered the most significant factor of § 304 when it serves as the crux of the debtor’s argument. See In re Gee, 53 B.R. 891, 901 (Bkrtcy.S.D.N.Y. 1985). Comity has been defined as “the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens.” Hilton v. Guyot, 159 U.S. 113, 164, 16 S.Ct. 139, 143, 40 L.Ed. 95 (1895). Comity is granted to the decision or judgment of a foreign court “[i]f it is shown that the foreign court is a court of competent jurisdiction and that the laws and public policy of the foreign state and the rights of its residents will not be violated. Comity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect.” Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3rd Cir. 1971), cert. denied, 405 U.S. 1017, 92 S.Ct. 1294, 31 L.Ed.2d 479 (1972). In order for comity to be extended, the foreign court must abide by fundamental standards of procedural fairness. See Cunard S.S. Co. v. Salen Reefer Services A.B., 773 F.2d 452 (2d Cir.1985). “The rationale underlying the granting of comity to a final foreign judgment is that litigation should end after the parties have had an opportunity to present their cases fully and fairly to a court of competent jurisdiction.” Id. at 457-58." }, { "docid": "19262851", "title": "", "text": "had before him. . Because the Court rules that no escrow was created, the Court does not need to address the more complex issue of whether the existence of an escrow deposit would have removed the account from the Debtor’s bankruptcy estate. . Because Thornhill Global seeks to liquidate, the Court need not consider the final section 304(c) factor on reorganization. See 11 U.S.C. § 304(c)(6). . Section 304 is infused with an inherent tension between the desire to protect local interests — a \"territoriality” approach — and the increasingly urgent need to grant deference to foreign proceedings for the purpose of promoting efficiency in international bankruptcies — the \"universality” approach. See e.g., In re Treco, 239 B.R. at 40. Courts using the universality approach favor a single, unified distribution of the debtor’s assets from one central forum. The courts defer to a single jurisdiction which retains the primary duty to resolve the debtor's financial difficulties and coordinates the actions in other jurisdictions in aid of the centralized proceeding. In contrast, courts relying on a territoriality approach emphasize the rights of local creditors and follow the strict rule of sovereignty. Under a strict application of this theory, each nation conducts its own bankruptcy proceeding with respect to the assets located within its jurisdiction and disregards any parallel proceedings in foreign jurisdictions. See In re Hourani, 180 B.R. 58, 64 n. 9 (Bankr.S.D.N.Y.1995) citing Lawrence J. Westbrook, Choice of Avoidance Law in Global Insolvencies, 17 Brook. J.Int'l L. 499 (1991). This Court condones the emerging trend in U.S. courts favoring the universality approach. . As suggested by the Honorable Burton R. Lifland, comity is the central theme of section 304. Its placement as but one factor on a list of factors usually cited to define the concept blurs the centrality of the doctrine. See Hon. Burton R. Lifland, Suggestions for the National Bankruptcy Review Comm'n and Congress, 4 AM.BANKR.INST.L.REV. 530, 530 (1996)." }, { "docid": "16761699", "title": "", "text": "return of $2,000,000 that Ref-co deposited into Mebco’s account at Swiss Bank — N.Y. Stip. at ¶ 34. On January 5, 1990, the Petitioner filed the instant petition seeking relief pursuant to section 304, together with a motion to, inter alia, enjoin Refco’s prosecution of the District Court Action and to direct turnover of all the funds in Mebco’s Swiss Bank — N.Y. account to the Petitioner for administration in the Swiss Proceedings. Refco, in rebuttal, objects to the injunctive relief requested by the Petitioner and to the turnover of Mebco’s assets. Additionally, Refco seeks to dismiss the section 304 petition. DISCUSSION Section 304 of the Code authorizes a representative appointed in a foreign bankruptcy proceeding to file a petition in the United States Bankruptcy Court ancillary to the foreign proceeding. The fundamental purpose of section 304 is to afford the foreign bankrupt the opportunity to “prevent the piecemeal, distribution of [its] assets [located] in this country ...” by local creditors. Victrix Steamship Co. S.A. v. Salen Dry Cargo A.B., 825 F.2d 709, 713-14 (2d Cir.1987); accord Cunard Steamship Co. Ltd. v. Salen Reefer Service, A.B., 773 F.2d 452, 453-54 (2d Cir.1985); In re Lines, 81 B.R. 267 (Bankr.S.D.N.Y.1988). A section 304 filing, however, does not create a full scale bankruptcy case with the protections of an automatic stay or with the Code’s avoiding powers. H.R.Rep. No. 96-595, 95th Cong., 1st Sess. 324-25 (1977); S.Rep. No. 95-989, 95th Cong., 2nd Sess. 35 (1978), U.S.Code Cong. & Admin.News 1978, 5787, 5821, 6280, 6281. See also, Matter of Axona Int’l Credit & Commerce, Ltd., 88 B.R. 597, 606 (Bankr.S.D.N.Y.1988); Universal Casualty & Surety Co., Ltd. v. Gee (In re Gee), 53 B.R. 891, 896 (Bankr.S.D.N.Y.1985); In re Trakman, 33 B.R. 780, 783 (Bankr.S.D.N.Y.1983); Matter of Culmer, 25 B.R. 621, 624 (Bankr.S.D.N.Y.1982). Instead, a section 304 petition creates a bankruptcy case limited in scope and designed to aid in the foreign proceedings. Matter of Axona, 88 B.R. at 606. The limited scope of a section 304 petition, however, is balanced with the broad powers granted the bankruptcy court in determining the type of" }, { "docid": "300160", "title": "", "text": "Southern District of New York show that, for calendar year 2008, Rule B attachments comprised 16.4% of civil case filings. All nine attachments here were obtained before the chapter 15 petitions were filed in this Court. Neither Atlas nor the foreign representative sought to vacate the Rule B attachments in the district court under Rule E(4)(f). B. Granting Comity to Foreign Proceedings under § SOI of the Old Code In 2005, Congress adopted chapter 15 of the Bankruptcy Code, which is based on the Model Law on Cross-Border Insolvency promulgated by the United Nations Commission on International Trade Law in 1997. Chapter 15 replaced § 304, which originally provided the statutory framework for cases filed in the United States that are ancillary to insolvency proceedings filed in foreign countries. The philosophies underlying former § 304 were deference to the foreign proceeding and the prevention of the piecemeal distribution of the debtor’s estate. See Bank of New York & JCPL Leasing Corp. v. Treco (In re Treco), 240 F.3d 148, 153-54 (2d Cir.2001) (citing Koreag, Controle et Revision S.A. v. Refco F/X Assocs., Inc. (In re Koreag), 961 F.2d 341, 358 (2d Cir.1992); Cunard S.S. Co. Ltd v. Salen Reefer Servs. AB, 773 F.2d 452, 455 (2d Cir.1985)). Section 304 provided a bankruptcy court with broad discretion in fashioning an appropriate remedy in a particular case. Id. at 154-55. Section 304(c) outlined several factors, including comity, that a court must consider before granting a foreign representative any type of relief. “Federal courts generally extend comity whenever the foreign court had proper jurisdiction and enforcement does not prejudice the rights of United States citizens or violate domestic public policy.” See Victrix S.S. Co., S.A. v. Salen Dry Cargo A.B., 825 F.2d 709, 713 (2d Cir.1987) (citing Hilton v. Guyot, 159 U.S. 113, 202-03, 16 S.Ct. 139, 40 L.Ed. 95 (1895)); see also Cunard S.S. Co. Ltd v. Salen Reefer Servs. AB, 773 F.2d 452 (2d Cir.1985). “Comity takes into account the interests of the United States, the interests of the foreign state or states involved, and the mutual interests of the family" }, { "docid": "13342953", "title": "", "text": "propriety of an analogy between a § 304 injunction and an automatic stay but claims that, in the context of an ancillary proceeding, whether litigation against the debtor should proceed is more appropriately managed and adjudicated by the foreign court where the bankruptcy case was begun. This point of view, claim the provisional liquidators, is in line with granting deference and comity to the foreign jurisdiction. In the background are heard Northwestern’s cries of unfairness that the provisional liquidators should be allowed to sue it but that Northwestern may not defend itself. Northwestern argues that the counterclaims in the Trust Action are compulsory and must be asserted now or be lost. Moreover, so the argument goes, British law does not have a RICO cousin and Northwestern will be deprived of its rights if not allowed to bring its RICO Action against the debtor in an American court. To resolve the question presented, we must pause to examine the purposes underlying ancillary proceedings. The principal goal of a § 304 case is to permit foreign debtors “to prevent the piecemeal distribution of assets in the United States by means of legal proceedings initiated in domestic courts by local creditors.” In re Davis, 191 B.R. 577, 582 (Bankr.S.D.N.Y.1996) (quoting Koreag, Controle et Revision, S.A. v. Refco F/X Assocs., Inc. (In re Koreag, Controle et Revision, S.A), 961 F.2d 341, 348 (2d Cir.)) (citations omitted), cert. denied, 506 U.S. 865, 113 S.Ct. 188, 121 L.Ed.2d 132 (1992)); see In re Rubin, 160 B.R. 269, 274 (Bankr.S.D.N.Y.1993). As I have remarked on many occasions, a case under § 304 is not a full-scale bankruptcy case, but “a limited one, designed to function in aid of a foreign proceeding pending in a foreign court.” Davis, 191 B.R. at 582 (quoting Universal Casualty & Surety Co. Ltd. v. Gee (In re Gee), 53 B.R. 891, 898 (Bankr.S.D.N.Y.1985)); see In re Bird, 222 B.R. 229, 233 (Bankr.S.D.N.Y.1998); In re Brierley, 145 B.R. 151, 158 (Bankr.S.D.N.Y.1992). It is the foreign court which is in the best position to assess where and when claims should be liquidated in order" }, { "docid": "300161", "title": "", "text": "et Revision S.A. v. Refco F/X Assocs., Inc. (In re Koreag), 961 F.2d 341, 358 (2d Cir.1992); Cunard S.S. Co. Ltd v. Salen Reefer Servs. AB, 773 F.2d 452, 455 (2d Cir.1985)). Section 304 provided a bankruptcy court with broad discretion in fashioning an appropriate remedy in a particular case. Id. at 154-55. Section 304(c) outlined several factors, including comity, that a court must consider before granting a foreign representative any type of relief. “Federal courts generally extend comity whenever the foreign court had proper jurisdiction and enforcement does not prejudice the rights of United States citizens or violate domestic public policy.” See Victrix S.S. Co., S.A. v. Salen Dry Cargo A.B., 825 F.2d 709, 713 (2d Cir.1987) (citing Hilton v. Guyot, 159 U.S. 113, 202-03, 16 S.Ct. 139, 40 L.Ed. 95 (1895)); see also Cunard S.S. Co. Ltd v. Salen Reefer Servs. AB, 773 F.2d 452 (2d Cir.1985). “Comity takes into account the interests of the United States, the interests of the foreign state or states involved, and the mutual interests of the family of nations in just and efficiently functioning rules of international law.” In re Artimm, S.r.L., 335 B.R. 149, 161 (Bankr.C.D.Cal.2005) (citing Maxwell Commc’n Corp. v. Societe Generale (In re Maxwell Commc’n Corp.), 93 F.3d 1036, 1048 (2d Cir.1996)). Particularly in the bankruptcy context, “American courts have long recognized the need to extend comity to foreign bankruptcy proceedings,” because “[t]he equitable and orderly distribution of a debtor’s property requires assembling all claims against the limited assets in a single proceeding; if all creditors could not be bound, a plan of reorganization would fail.” Victrix, 825 F.2d at 713-14. As a result, courts in the Second Circuit “have repeatedly held that U.S. courts should ordinarily decline to adjudicate creditor claims that are the subject of a foreign bankruptcy proceeding.” JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 424 (2d Cir.2005). The foreign representative argues that this Court should grant comity to the Danish bankruptcy proceeding by applying provisions of the Danish Bankruptcy Act that, according to the foreign representative, would" }, { "docid": "10170466", "title": "", "text": "of more than one meaning must be read in the manner which effectuates rather than frustrates the major purpose of the legislative draftsmen.” Schultz v. Louisiana Trailer Sales, Inc., 428 F.2d 61, 65 (5th Cir.1970). Because we find that the question of debt- or eligibility for section 304 ancillary assistance is susceptible of two interpretations, we turn to an examination of the purposes behind section 304. Section 304, which was enacted as part of the Bankruptcy Reform Act of 1978 and which had no predecessor in prior law, “was intended to deal with the complex and increasingly important problems involving the legal effect the United States courts will give to foreign bankruptcy proceedings.” Cunard Steamship Co. Ltd. v. Salen Reefer Servs. AB, 773 F.2d 452, 454 (2d Cir.1985); see generally Unger, United States Recognition of Foreign Bankruptcies, 19 Int’l Law. 1153 (1985). The filing of a section 304 petition does not commence a full bankruptcy case; a section 304 case is an ancillary case in which a United States bankruptcy court is authorized to apply its processes to give effect to orders entered in a foreign insolvency proceeding. Consistent with “[principles of intemation al comity and respect for the judgments and laws of other nations,” Congress intended that the bankruptcy courts have “maximum flexibility” in fashioning appropriate orders. H.R.Rep. No. 595, 95th Cong., 2d Sess. 325, reprinted in 1978 U.S. Code Cong. & Admin.News 5963, 6281. The ultimate purpose of the section 304 mechanism is to “prevent dismemberment by local creditors” of assets located in this country that are involved in a foreign insolvency proceeding. Id. at 324; S.Rep. No. 989, 95th Cong., 2d Sess. 35, reprinted in 1978 U.S.Code & Admin.News 5787, 5821. It is thus clear that Congress enacted section 304 to help further the efficiency of foreign insolvency proceedings involving worldwide assets. In aid of such proceedings, federal bankruptcy courts may, within the constraints imposed by section 304, apply their processes and expertise to marshal property of the foreign debtor’s estate located in this country. Because the focus is on making United States processes available in aid" }, { "docid": "13919177", "title": "", "text": "provide the same recourse as do our Bankruptcy Rules. Protection of United States creditors is of utmost importance to this Court. Actions taken-by a foreign court in a foreign bankruptcy are to be given deference if, and only if, there would be no substantial violation of the law that would be applied in the United States. See In re Toga Manufacturing, Ltd., 28 B.R. 165 (Bkrtcy.E.D.Mich. 1983) (ancillary petition not granted because the priority of claims in Canada is different than in the United States); In re Matter of Culmer, 25 B.R. 621 (Bkrtcy.S. D.N.Y.1982) (ancillary relief granted where the court found that foreign proceeding was conducted in an inherently fair and regular manner); see also Cunard S.S. Co. v. Salen Reefer Services A.B., 773 F.2d 452 (2d Cir.1985) (comity granted because the creditors would receive essential due process considerations in the adjudication of their claims); In re Metzeler, 78 B.R. 674 (Bkrtcy.S.D.N.Y.1987) (ancillary petition granted because German law essentially and in its important aspects similar to U.S. Bankruptcy Code). Thus, while access to the Australian tribunal appears to be a clear right under Australian law, the question remains as to whether, on a parity of litigation level, these claims can be presented and adjudicated by the Australian Court, and be consistent with the procedural and substantive teachings of the United States Bankruptcy Code. (b) Parity of Law There is no requirement that Australian law and United States law be identical. See In re Gee, 53 B.R. 891 (Bkrtcy.S.D.N.Y.1985). However, before a § 304 Petition may be granted, this Court must be convinced that the foreign Court has or will abide by fundamental standards of procedural fairness. See Id. 902; Cunard Steamship Co. Ltd. v. Salen Reefer Services A.B., 773 F.2d 452, 457 (2d Cir.1985). Additionally, our Bankruptcy Code requires that “just treatment be accorded United States creditors and that fraudulent dispositions of property be prevented.” 11 U.S. C.A. § 304(c)(1) and (4) (1982). Procedural protections provided in the Bankruptcy Code are considered of paramount importance. One such protection requires that creditors be notified prior to the institutionalization of agreements" }, { "docid": "22130870", "title": "", "text": "(2d Cir.1987). Refco presents two arguments on appeal. First, Refco contends that because Refco had a superior property interest in the Disputed Funds, they were not “property of [Mebco’s] estate” within the meaning of § 304(b)(2), and the bankruptcy and district courts accordingly erred in ordering their turnover to Koreag. Refco’s alternative position is that even if the Disputed Funds were part of Mebco’s estate, the bankruptcy and district courts incorrectly applied the factors set forth in § 304(c) in fashioning the turnover remedy. We first turn to Refco’s argument based upon § 304(b)(2). Responding to Refco’s contentions, we initially consider whether, when an adverse claimant raises a plausible dispute concerning the ownership of property whose turnover is sought by a foreign liquidator pursuant to § 304(b)(2), a court should resolve that threshold issue before ordering turnover. Answering that question in the affirmative, we next consider what law governs the resolution of the ownership issue. Concluding that New York law provides the rule of decision in this case, we then address the § 304(b)(2) issue in terms of (1) the New York law of constructive trusts, and (2) the New York Uniform Commercial Code. A. Threshold Determination of Ownership Issue. Section 304(a) authorizes a “foreign representative” in a “foreign [bankruptcy] proceeding” to commence a “[c]ase ancillary to [that] proceeding” in a United States bankruptcy court to protect the administration of the foreign proceeding. The purpose of a § 304 petition is to prevent the piecemeal distribution of assets in the United States by means of legal proceedings initiated in domestic courts by local creditors. Victrix S.S. Co., S.A. v. Salen Dry Cargo A.B., 825 F.2d 709, 713-14 (2d Cir.1987); Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452, 454-55 (2d Cir.1985). A bankruptcy court is given broad latitude in fashioning an appropriate remedy in a § 304 proceeding. In re Axona Int’l Credit & Commerce Ltd., 88 B.R. 597, 606 (Bankr.S.D.N.Y.1988), aff'd, 115 B.R. 442 (S.D.N.Y.1990), appeal dismissed, 924 F.2d 31 (2d Cir.1991); In re Culmer, 25 B.R. at 624; see also S.Rep. No. 989, 95th Cong., 2d" }, { "docid": "23593861", "title": "", "text": "after the liquidator attempted to obtain discovery through this court. DISCUSSION I. Since Universal has itself purported to invoke the jurisdiction of this court to liquidate in bankruptcy, it is clear that the parties agree that there is a need for a bankruptcy. Where Universal and Gee diverge is with respect to the nature of the case to be conducted before this court and the identity of the person who will direct it. A case under section 304 is not a full-scale bankruptcy case with an automatic stay prohibiting dismemberment of assets by vigilant creditors or with avoiding powers given to a fiduciary, be it a trustee or debtor-in-possession, to ensure equality of distribution among creditors. See Cunard Steamship Company Limited v. Salen Reefer Services AB, 773 F.2d 452, 454, Slip op. at 6206 (2d Cir. Sept. 19, 1985). Rather, a 304 case is a limited one, designed to function in aid of a proceeding pending in a foreign court. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 324-325 (1977); S.Rep. No. 95-989, 95th Cong. 2nd Sess. 35 (1978), U.S.Code Cong. & Admin.News 1978, 5787, 5821, 6280, 6281; 2 Collier, Bankruptcy 11304.01 (15th ed. 1985); In re Trakman, 33 B.R. 780, 783 (Bankr.S.D.N.Y.1983); In re Culmer, 25 B.R. 621, 624 (Bankr.S.D.N.Y.1982). A chapter 11 case, on the other hand, gives rise to an automatic stay and, unless a trustee is appointed for cause, clothes the debtor in possession with the ability to avoid transfers which, absent bankruptcy, it could not otherwise undo. In enacting section 304, which had no predecessor under the former Bankruptcy Act, Congress provided a mechanism for the courts in this country to aid foreign courts and accommodate the increasing number of foreign insolvency proceedings having extraterritorial effects within the United States. See 2 Collier, Bankruptcy ft 304.01 (15th ed. 1985) and authorities cited therein; see also S.A. Morales & B.A. Deutsch, Bankruptcy Code Section 304 and U.S. Recognition of Foreign Bankruptcies: The Tyranny of Comity, 39 Bus. Law. 1573 (1984) (hereinafter “Morales & Deutsch”); B.J. Gallagher & J. Hartje, The Effectiveness of § 304 In Achieving Efficient" }, { "docid": "6578205", "title": "", "text": "is an absolute requirement—rather, these factors are “guidelines ... designed to give the court maximum flexibility in handling ancillary cases.” In re Culmer, 25 B.R. 621, 628 (Bankr.S.D.N.Y.1982) (citing legislative history of § 304). In exercising the discretion granted by § 304, bankruptcy courts have taken a variety of approaches, with the two principal theories known as “universality” and “territoriality.” On the one hand, § 304 was designed to encourage courts to defer to foreign proceedings in order to “prevent dismemberment by local creditors of assets located here.” Koreag, 961 F.2d at 348 (internal citations omitted). On the other hand, § 304 takes into account that relief may be inappropriate in some cases, for example, where it might prejudice local creditors in the processing of their claims or result in a distribution of proceeds that differs substantially from the order prescribed by the U.S. bankruptcy code. See § 304(c)(2) and (4). U.S. courts “are increasingly supportive of the philosophy underlying universality and are employing the doctrine in an ever growing number of cases and circumstances.” See Hourani, 180 B.R. at 64. This Court agrees with this trend towards granting deference to foreign proceedings, which furthers the purposes of § 304 in promoting efficiency in international bankruptcies and encouraging other countries to defer similarly to U.S. proceedings. BNY asserts that the distribution of proceeds in the Bahamian proceeding will not be substantially in accordance with the order prescribed by the U.S. bankruptcy code. Section 304(c)(4), however, “does not command that the distributive scheme wholly replicate ours.” In re Brierley, 145 B.R. 151, 166 (Bankr.S.D.N.Y.1992). In fact, prior U.S. courts have already concluded that the distribution scheme of the Bahamas, “a sister common law jurisdiction,” is fundamentally fair and generally satisfies the standard set forth in § 304(c)(4). See, e.g., Culmer, 25 B.R. at 629-632 (stating that the “liquidation laws of the Bahamas are in harmony with those of the United States” and should be afforded comity); In re Hackett, 184 B.R. 656, 658 (Bankr.S.D.N.Y.1995) (affording comity to a Bahamian bankruptcy proceeding and citing Culmer). The only relevant difference between U.S. and" }, { "docid": "1178270", "title": "", "text": "the security furnished by the Trust survive such an event. Third, he states, the Trust’s sole asset is a letter of credit in which Israel Re holds no interest. Fourth, he urges, the McCarran-Ferguson Act, 15 U.S.C.A. 1011 et seq., precludes application of section 304 because an injunction would invalidate, impair, or supersede the applicable laws of New York and New Jersey. III. A. Section 30b The purpose of a section 304 filing is to prevent piecemeal distribution of assets in the United States by means of legal proceedings initiated in domestic courts by local creditors. In re Koreag, Controle et Revision S.A., 961 F.2d 341, 348 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 188, 121 L.Ed.2d 132 (1992); Victrix S.S. Co. S.A. v. Salen Dry Cargo A.B., 825 F.2d 709, 713-14 (2d Cir.1987); Cunard S.S. Co. v. Salen Reefer Services, A.B., 773 F.2d 452, 454-55 (2d Cir.1985). Section 304(a) authorizes a “foreign representative” in a “foreign proceeding” to commence a case ancillary to that proceeding in a United States bankruptcy court to protect the administration of the foreign proceeding. Here, it is conceded that the Israel Re winding up is a foreign proceeding and that the Petitioners are foreign representatives appointed by the Tel Aviv court. In enacting section 304, which had no predecessor under the former Bankruptcy Act, Congress provided a mechanism for the courts in this country to aid foreign courts and accommodate the increasing number of foreign insolvency proceedings having extraterritorial effects within the United States. Universal Casualty & Surety Co. Ltd. v. Gee (In re Gee), 53 B.R. 891, 896 (Bankr.S.D.N.Y.1985). Congress commanded that the court explore certain enumerated factors to decide whether relief ought be granted under the section. If I find that those factors contained in section 304(c) militate in favor of granting an ancillary petition to best assure an economical and expeditious administration of the foreign estate, I may enjoin commencement or continuation of an action against the foreign debtor with respect to property involved in the foreign proceeding or against the property. 11 U.S.C. § 304(b)(1). That the factors" } ]

[ { "docid": "22159479", "title": "", "text": "such as when “the victim of a street crime seeks immediate police aid and gives a description of the assailant.” Adams v. Williams, 407 U.S. at 147, 92 S.Ct. at 1924. Second, the officers had more reason to believe that the informant was credible than the officers did in J.L., for a tip given face to face is more reliable than an anonymous telephone call. As the Fourth Circuit recently explained, when an informant relates information to the police face to face, the officer has an opportunity to assess the informant’s credibility and demeanor. United States v. Christmas, 222 F.3d 141, 144 (4th Cir.2000). And when an informant gives the police information about a neighbor (as in Christmas) or someone nearby (as in our case), the informant is exposed to a risk of retaliation from the person named, making it less likely that the informant will lie. Id. Similarly, as the Fourth Circuit noted, “citizens who personally report crimes to the police thereby make themselves accountable for lodging false complaints.” Id. (citing Illinois v. Gates, 462 U.S. at 233-34, 103 S.Ct. at 2329-30 (1983); Adams v. Williams, 407 U.S. at 146-47, 92 S.Ct. at 1923). Many cases have recognized the difference between in — person informants and anonymous telephone calls. See, e.g., Florida v. J.L., 529 U.S. at-, 120 S.Ct. at 1381 (Kennedy, J., concurring) (“If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip. An instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring.”); Davis v. United States, 759 A.2d 665 (D.C.App.2000) (An officer had probable cause for a search after an informant who declined to give his name flagged down the officer and told him that a man nearby in a wheelchair was selling crack out of his right shoe.); United States v. Salazar, 945 F.2d 47, 50-51" } ]

[ { "docid": "23710152", "title": "", "text": "270, 120 S.Ct. 1375. The parties to this appeal agree that without the additional information known by the 911 operator, the stop and frisk would have been impermissible under J.L., 529 U.S. at 270, 120 S.Ct. 1375, and that the information known by the 911 operator, had it been known by an officer, would have been sufficient to allow an officer to stop and frisk Colon. Accordingly, the sole issue before the Court is whether the civilian 911 operator’s knowledge may be imputed to the dispatching or arresting officers in the absence of any evidence that the 911 operator made any assessment of reasonable suspicion or was trained to do so. For the reasons discussed below, we hold that this information cannot be imputed to the law enforcement officers and that .defendant’s motion to suppress should have been granted. B. Collective knowledge Under the collective or imputed knowledge doctrine, an arrest or search is permissible where the actual arresting or searching officer lacks the specific information to form the basis for probable cause or reasonable suspicion but sufficient information to justify the arrest or search was known by other law enforcement officials initiating or involved with the investigation. See United States v. Hensley, 469 U.S. 221, 230-33, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Canieso, 470 F.2d 1224, 1230 n. 7 (2d Cir.1972). “The rule exists because, in light of the complexity of modern police work, the arresting officer cannot always be aware of every aspect of an investigation; sometimes his authority to arrest a suspect is based on facts known only to his superiors or associates.” United States v. Valez, 796 F.2d 24, 28 (2d Cir.1986). The collective knowledge doctrine was developed in recognition of the fact that with large police departments and mobile defendants, an arresting officer might not be aware of all the underlying facts that provided probable cause or reasonable suspicion, but may nonetheless act reasonably in relying on information received by other law enforcement officials. See Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568, 91 S.Ct. 1031, 28 L.Ed.2d 306" }, { "docid": "22129809", "title": "", "text": "We need not resolve that issue here, however. Even if the tip is deemed “anonymous,” we still conclude that Officer Bur-dette had reasonable suspicion to stop Perkins’ vehicle. A. The basic rules governing informant’s tips are well-established. In cases where an informant’s tip supplies part of the basis for reasonable suspicion, we must ensure that the tip possesses sufficient indicia of reliability. See J.L., 529 U.S. at 270, 120 S.Ct. 1375; Alabama v. White, 496 U.S. 325, 326-27, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Where the informant is known or where the informant relays information to an officer face-to-face, an officer can judge the credibility of the tipster firsthand and thus confirm whether the tip is sufficiently reliable to support reasonable suspicion. See Adams, 407 U.S. at 146-47, 92 S.Ct. 1921 (tip from known source); United States v. Christmas, 222 F.3d 141, 144 (4th Cir.2000) (face-to-face tip from unknown source). Where a tip is anonymous, it must be accompanied by some corroborative elements that establish the tip’s reliability. See J.L., 529 U.S. at 270, 120 S.Ct. 1375; White, 496 U.S. at 329-31, 110 S.Ct. 2412. In fact, the Supreme Court has made clear that “there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.” J.L., 529 U.S. at 270, 120 S.Ct. 1375 (internal quotation omitted). Under the circumstances of this case, for the reasons we have given, the tip was sufficiently reliable to be part of Officer Burdette’s basis for stopping Perkins’ vehicle. This case is unlike Florida v. J.L., in which Miami-Dade police officers, responding to a purely anonymous call reporting that “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun,” found a male meeting that description and searched him and his two friends, based solely on the tip. 529 U.S. at 268, 120 S.Ct. 1375. In holding the search unconstitutional, the J.L. Court emphasized that “nothing [was] known about" }, { "docid": "19274539", "title": "", "text": "J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). That is because an anonymous informant typically cannot be questioned about the basis for knowing the information or motive for providing the tip, nor can the anonymous informant be held accountable for providing false information in violation of the, law. See J.L., 529 U.S. at 271, 120 S.Ct. 1375; Adams, 407 U.S. at 146-^7, 92 S.Ct. 1921. Second, an informant with a proven track record of reliability is considered more reliable than an unproven informant. See Adams, 407 U.S. at 146-47, 92 S.Ct. 1921. Third, the informant’s tip is considered more reliable if the informant reveals the basis of knowledge of the tip — how the informant came to know the information. See Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), abrogated on other grounds by Gates, 462 U.S. at 238, 103 S.Ct. 2317. Finally, a tip that provides detailed predictive information about future events that is corroborated by police observation may be considered reliable, even if the tip comes from an anonymous source. See White, 496 U.S. at 329-30,110 S.Ct. 2412; Gates, 462 U.S. at 243-45, 103 S.Ct. 2317; Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Predictive information that reveals a detailed knowledge of an individual’s intimate affairs is more reliable than predictive information that could be observed by the general public, see White, 496 U.S. at 332, 110 S.Ct. 2412; J.L., 529 U.S. at 272, 120 S.Ct. 1375, and such self-verifying detail is considerably more valuable if it relates to suspicious activities than if it relates to innocent activities, see Gates, 462 U.S. at 245 n. 13,103 S.Ct. 2317. Here, several indicia of reliability were present that support the informant’s tip. The informant in this case made himself known to the DEA agents, and the agents met with the informant personally. See generally United States v. Romain, 393 F.3d 63, 73 (1st Cir.2004) (noting that face-to-face encounter" }, { "docid": "23656308", "title": "", "text": "had committed the crimes reported, based on the exact match of the unique description — car, plates, occupants and direction of travel — no additional suspicious conduct was required to justify the stop. AMBRO, Circuit Judge, dissenting. I respectfully dissent. While the majority purportedly relies on “the totality of the circumstances” in reaching its result, the record illustrates that the tip here came from an anonymous caller, offered no predictive information of future events, and was not adequately corroborated by the arresting officers. The majority’s opinion, in my view, is inconsistent with Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), and United States v. Roberson, 90 F.3d 75 (3d Cir.1996), both of which involved circumstances analogous to those present here. Following those controlling decisions, I would reverse the District Court’s ruling. In evaluating the existence of reasonable suspicion, the Court must look at the “totality of the circumstances” measured by “what the officers knew before they conducted their search.” J.L., 529 U.S. at 271, 120 S.Ct. 1375. Where initial suspicion arises not from officer observation but from an identifiable informant’s tip, only minimal police corroboration may be needed to justify an investigative stop. Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Where the informant is identified, his veracity, basis of knowledge, and track record of providing information may suggest the tip’s inherent reliability. Id. In contrast, “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable.” Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Because of the inherent unreliability of such information, an anonymous tip must contain “something more” before reasonable suspicion arises. Id. This higher standard dictates that reasonable suspicion only arises from a “truly anonymous” tip if it provides predictive future facts and the officers corroborate the information by observing illegal or unusual conduct" }, { "docid": "23710153", "title": "", "text": "suspicion but sufficient information to justify the arrest or search was known by other law enforcement officials initiating or involved with the investigation. See United States v. Hensley, 469 U.S. 221, 230-33, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Canieso, 470 F.2d 1224, 1230 n. 7 (2d Cir.1972). “The rule exists because, in light of the complexity of modern police work, the arresting officer cannot always be aware of every aspect of an investigation; sometimes his authority to arrest a suspect is based on facts known only to his superiors or associates.” United States v. Valez, 796 F.2d 24, 28 (2d Cir.1986). The collective knowledge doctrine was developed in recognition of the fact that with large police departments and mobile defendants, an arresting officer might not be aware of all the underlying facts that provided probable cause or reasonable suspicion, but may nonetheless act reasonably in relying on information received by other law enforcement officials. See Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) (“Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.”); Hensley, 469 U.S. at 230-33, 105 S.Ct. 675 (a Terry stop based on a flyer issued by a neighboring police department indicating that the suspect was wanted for investigation of a felony was permissible if “the officers who issued the flyer possessed probable cause to make the arrest”); Williams v. United States, 308 F.2d 326, 327 (D.C.Cir.1962) (“The whole complex of swift modern communication in a large police department would be a futility if the authority of an individual officer was to be circumscribed by the scope of his first hand knowledge of facts concerning a crime or alleged crime.”); United States v." }, { "docid": "16133123", "title": "", "text": "implying a degree of relative certainty, or even a “more likely than not” view of the facts. See United States v. Melvin, 596 F.2d 492, 495 (1st Cir.1979). “[PJrobable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.” Commonwealth v. Santaliz, 413 Mass. 238, 241, 596 N.E.2d 337 (1992). “When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would ‘warrant a man of reasonable caution in the belief that an offense has been committed.” Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). In assessing probable cause, a court will be guided by the “collective knowledge” or “fellow officer” rule, under which the aggregate knowledge of all officers involved in the investigation will be imputed to the officer making the arrest. United States v. Fiasconaro, 315 F.3d 28, 35-36 (1st Cir.2002). Here the officers witnessed a serious crime, that is, the sale of firearms by a person known to the officers to be a convicted felon. While Devlamnick was not a “documented” informant, in the sense that he had a proven track record, his sudden outburst, “I am not going to jail for Dennis again,” could be credited as reliable on two grounds — either as a spontaneous utterance, see Commonwealth v. McLaughlin, 364 Mass. 211, 221-224, 303 N.E.2d 338 (1973), or as a declaration against penal interest. See United States v. Schaefer, 87 F.3d 562, 566 (1st Cir.1996). See also Lilly v. Virginia, 527 U.S. 116, 146, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (Rehnquist, C.J., concurring). Police knew that Dennis Brown was a convicted felon with a history of dealing in contraband and that given Jason’s incarceration after the shooting incident, he had likely access to the missing firearms. See United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 29" }, { "docid": "18128593", "title": "", "text": "arrest the defendant for bank robbery existed at the time of the stop, notwithstanding the failure to communicate that to the defendant, the seizure of drug paraphernalia would have been the result of a lawful search incident to arrest, and defendant’s Fourth Amendment claim would fail. See United States v. Bookhardt, 277 F.3d 558, 564 (D.C.Cir.2002) (“[I]f a police officer arrests a defendant on a ground that ultimately proves invalid, the arrest is nonetheless lawful if the same officer had probable cause to arrest the defendant for a different criminal offense.”). Because the Court finds that law enforcement, after stopping the defendant on May 12, possessed probable cause to arrest the defendant for the April 7 bank robbery, defendant’s Fourth Amendment claim fails. 1. MPD officers possessed reasonable suspicion to conduct an investigatory stop of defendant. Police do not need probable cause to stop a suspect thought to be involved in a completed crime. United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (“[I]f police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry Stop may be made to investigate that suspicion.”). Indeed, investigatory stops require “considerably less than probable cause.” United States v. Davis, 235 F.3d 584, 586 (D.C.Cir.2000). The Court begins its analysis with the question of whether there was reasonable suspicion to conduct an investigatory stop of the defendant. The defendant relies on Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), to ar gue that police lacked reasonable suspicion to stop him. See Reply 5, 7. In J.L., police received an anonymous tip that “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” Id. at 268, 120 S.Ct. 1375. Apart from the anonymous report, the police had no information or reason to believe that the reported individuals were engaged in illegal activity. Id. The police officers stopped and frisked the individual matching the description and" }, { "docid": "23051963", "title": "", "text": "a probable cause determination, police officers are “entitled to rely on the allegations of fellow police officers.” Martinez, 202 F.3d at 634; see also Caldarola, 298 F.3d at 166-67 (citing Bernard v. United States, 25 F.3d 98, 102-03 (2d Cir.1994)). “Absent significant indications to the contrary, an officer is entitled to rely on his fellow officer’s determination that an arrest was lawful.” Loria v. Gor-man, 306 F.3d 1271, 1288 (2d Cir.2002). “[T]he determination of probable cause does not turn on whether [the fellow agent’s] observations were accurate, but on whether [the arresting agent] was reasonable in relying on those observations.” Bernard, 25 F.3d at 103. Moreover, information gleaned from informants can be sufficient to justify the existence of probable cause. “[I]t is well-established that a law enforcement official has probable cause to arrest if he received his information from some person, normally the putative victim or eyewitness,” Martinez, 202 F.3d at 634 (citation omitted), unless the circumstances raise doubt as to the person’s veracity, Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir.1995). The reliability or veracity of the informant and the basis for the informant’s knowledge are two important factors. Caldarola, 298 F.3d at 162. “[A] tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated” is especially significant in establishing probable cause. Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). Moreover, information provided by “an identified bystander with no apparent motive to falsify” has “a peculiar likelihood of accuracy,” Caldarola, 298 F.3d at 163 (citation omitted), and we have endorsed the proposition that “an identified citizen informant is presumed to be reliable.” Id. at 165. Furthermore, “[t]he fact that an innocent explanation may be consistent with the facts alleged ... does not negate probable cause,” United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985), and an officer’s failure to investigate an arrestee’s protestations of innocence generally does not vitiate probable cause. In Curley v. Village of Suffern, 268 F.3d 65 (2d Cir.2001), we held that" }, { "docid": "22129808", "title": "", "text": "v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). Therefore, Perkins claims, the tip could not form the basis for the investigatory stop, and Officer Burdette could not possess reasonable suspicion to stop Perkins’ vehicle. As an initial matter, it is not even clear whether this was a purely anonymous tip. It obviously had some characteristics of an anonymous tip because the woman did not give her name to the dispatcher. On the other hand, as detailed above, Officer Bur-dette reasonably assumed the caller’s identity to have been Mrs. Hayes, and it was the nature and substance of the tip that revealed her identity. While an “anonymous” caller may be defined simply as one who does not identify herself, she could just as plausibly be defined as one who is unknown to the police. Such a definition, by focusing on the officer’s knowledge, would be consistent with the officer-centered nature of reasonable suspicion analysis. Neither the Supreme Court nor this court has defined precisely what it means to be an “anonymous” caller. We need not resolve that issue here, however. Even if the tip is deemed “anonymous,” we still conclude that Officer Bur-dette had reasonable suspicion to stop Perkins’ vehicle. A. The basic rules governing informant’s tips are well-established. In cases where an informant’s tip supplies part of the basis for reasonable suspicion, we must ensure that the tip possesses sufficient indicia of reliability. See J.L., 529 U.S. at 270, 120 S.Ct. 1375; Alabama v. White, 496 U.S. 325, 326-27, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Where the informant is known or where the informant relays information to an officer face-to-face, an officer can judge the credibility of the tipster firsthand and thus confirm whether the tip is sufficiently reliable to support reasonable suspicion. See Adams, 407 U.S. at 146-47, 92 S.Ct. 1921 (tip from known source); United States v. Christmas, 222 F.3d 141, 144 (4th Cir.2000) (face-to-face tip from unknown source). Where a tip is anonymous, it must be accompanied by" }, { "docid": "21091136", "title": "", "text": "S.Ct. 2412; Illinois v. Gates, 462 U.S. 213, 227, 237-38, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). . 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). . Id. at 1379. . Id. at 1380. . See id. at 1381 (Kennedy, J., concurring) (\"It seems appropriate to observe that a tip might be anonymous in some sense yet have certain other features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action.”). . Brown Aff., Ex. A, 3. . Id. at 5. As it turned out, the call also proved to be traceable via caller I.D., although there is no reason to rely on the caller knowing that would be the case. . See Florida v. J.L., 529 U.S. at-, 120 S.Ct. at 1381 (Kennedy, J., concurring) (\"If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip.”). . Brown Aff., Ex. A, 5. . See Florida v. J.L., 529 U.S. at-, 120 S.Ct. at 1377 (\"So far as the record reveals, there is no audio recording of the tip, and nothing is known about the informant.”). . See Illinois v. Gates, 462 U.S. at 230, 103 S.Ct. 2317 (abandoning the Aguilar-Spinelli test for probable cause, but making clear that an informant's veracity, reliability, and basis of knowledge remain highly relevant). . See, e.g., United States v. Hensley, 469 U.S. 221, 230-31, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); Illinois v. Andreas, 463 U.S. 765, 772 n. 5, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) (\"[W]here law enforcement authorities are cooperating in an investigation, as here, the knowledge of one is presumed shared by all.”); Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) (“To prevent arresting officers from acting on the assumption that fellow officers who call upon them to make an arrest have probable cause for believing the arrestees are perpetrators of a crime would, it is argued, unduly hamper law enforcement.”); see also Terry, 392 U.S. at 30," }, { "docid": "3220158", "title": "", "text": "the unnamed relative had fabricated the tip. The tip from Cabral’s relative simply cannot be deemed more reliable by virtue of Cabral’s face-to-face interaction with the police. Compare J.L., 529 U.S. at 276, 120 S.Ct. 1375 (Kennedy, J„ concurring). See also Adams, 407 U.S. at 146-47, 92 S.Ct. 1921 (distinguishing known face-to-face informant from anonymous phone tipper); United States v. Romain, 393 F.3d 63, 73-74 (1st Cir.2004) (distinguishing J.L. in a case where the police had face-to-face encounters with an unnamed informant that allowed them to gauge her reliability and because her appearance was known and she could be recognized and \"held accountable” for the information she had provided). . The government also cites United States v. Mitchell, 256 F.3d 734 (7th Cir.2001). In that case, the police responded within 90 seconds to an anonymous report of a shooting and found the defendant, who matched the description of the shooter. The police asked the defendant a question and then, after observing his behavior and realizing that he was a convicted felon known for his violence, conducted a Terry stop because they feared that they would be shot in the back if they proceeded without patting the defendant down. Id. at 737. The government does not suggest any similar justification for the stop in this case. . The situation here also is far different from one in which an anonymous tipster accurately forecasts another individual’s \"not easily predicted movements” in a manner that confirms the tipster's knowledge of the subject's criminal intentions. J.L., 529 U.S. at 269, 120 S.Ct. 1375 (internal quotation marks omitted). In this case, nothing the police learned after the tip falls into the category of information that could \"not easily [be] predicted” by a tipster intending to mislead the police." }, { "docid": "23094747", "title": "", "text": "266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). All relevant factors must be considered in the reasonable suspicion calculus — even those factors that, in a different context, might be entirely innocuous. Id. at 277-78, 122 S.Ct. 744. The district court properly concluded on this factual record that the report of Fernandez’s erratic driving observed and called-in by MDOT employees, coupled with Officer Schock’s own corroborating observations, gave rise to a reasonable suspicion that Fernandez was impaired sufficient to justify an investigatory stop. A We begin our analysis by discussing the relevance of the MDOT report conveyed to Officer Schock. For a third-party report of suspected criminal activity to form the basis of an officer’s reasonable suspicion, that report must possess sufficient indicia of reliability. See Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). For several reasons, we think the MDOT report was reliable and therefore must be considered in the reasonable suspicion calculus. Most significantly, the report of erratic driving came from a known source: the MDOT. The MDOT dispatcher knew that MDOT employee Jay Harvey provided the report; indeed, Harvey’s name was written as the source on the MDOT log introduced into evidence at the suppression hearing. When relaying Harvey’s report to the Highway Patrol, the MDOT dispatcher informed the Highway Patrol dispatcher that “one of our guys” called in the report and that the driver was “evidently driving quite erratically.” Although the Highway Patrol dispatcher distilled and paraphrased this information in passing it on to Officer Schock, the dispatcher’s knowledge is properly considered as part of our analysis of reasonable suspicion. See United States v. Hensley, 469 U.S. 221, 231-32, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Robinson, 536 F.2d 1298, 1300 (9th Cir.1976); cf. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1497 (9th Cir.1996). Thus Officer Schock reasonably- — -and correctly — assumed that the report came" }, { "docid": "1536856", "title": "", "text": "amounted to an arrest without probable cause. Police may stop and briefly detain a person for investigative purposes if they have reasonable suspicion supported by articulate facts that a crime is afoot. United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Factors that may justify an investigative stop based on reasonable suspicion include “the time of the day, the “high crime” nature of the area, an informant’s tip that persons might be armed, furtive hand movements, flight or attempted flight by the person sought to be detained, and a pressing need for immediate action” United States v. Laing, 889 F.2d 281, 285 (D.C.Cir.1989). See Also, Michigan v. Chesternut, 486 U.S. 567, 576, 108 S.Ct. 1975, 1981, 100 L.Ed.2d 565 (1988) (Kennedy and Scalia, J.J., concurring) (unprovoked flight from police provides ample cause for Terry stop.); United States v. Sharpe, 470 U.S. 675, 682 n. 3, 105 S.Ct. 1568, 1573 n. 3, 84 L.Ed.2d 605 (1985) (evasive action relevant in determining whether officers had reasonable suspicion) Furthermore, the knowledge of one officer who possesses reasonable suspicion may be imputed to a fellow officer who effects a Terry stop at his behest. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Ferreira, 821 F.2d 1, 5 (1st Cir.1987) (first police officer’s reasonable suspicion conveyed to second officer by yell to stop defendant) In the instant case, reasonable suspicion to stop defendant Brown was present. Officer Vazquez received information from Davila, who was chasing Brown, that Brown was possibly carrying drugs. Vazquez observed Davila chasing Brown and Brown continuing to run even after the municipal officers joined the chase. Furthermore, officers De Jesus and Rodriguez had received reliable information that a hold up had just been committed in the area. Finally, the officers had collective knowledge that Brown had run from the customs area. Thus, the Terry stop is valid as long as it was not converted into an arrest. There are three basic types of contact between officers and the public. United States v. Flowers, 909 F.2d 145, 147" }, { "docid": "22425266", "title": "", "text": "and reliability of an informant’s tip in light of the totality of the circumstances”). The following specific aspects of tips indicate reliability: (1) The tip information was relayed from the informant to the officer in a face-to-face interaction such that the officer “had an opportunity to appraise the witness’s credibility through observation.” Nelson, 284 F.3d at 480; see also Valentine, 232 F.3d at 354. (2) The person providing the tip can be “held responsible if her allegations turn out to be fabricated.” Valentine, 232 F.3d at 354 (internal quotations and citation omitted); see also J.L., 529 U.S. at 270, 120 S.Ct. 1375; Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Nelson, 284 F.3d at 482. (3) The content of the tip is not information that would be available to any observer. Nelson, 284 F.3d at 483 (citing White, 496 U.S. at 332, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). A “not truly anonymous” tip is accorded greater weight when “the specific details of language, type of activity and location matched a pattern of criminal activity known to the police, but not to the general public,” and “the tip could not have been generated by the general public, nor based solely on observation.” Id. at 482, 484; see also United States v. Roberson, 90 F.3d 75, 79 (3d Cir.1996) (affording tip less weight when information could have been gained by “caller ... looking out of his window ... at the time of his 911 call”). (4) The person providing the information has recently witnessed the al leged criminal activity. See Gates, 462 U.S. at 234, 103 S.Ct. 2317 (informant’s “statement that the event was witnessed first-hand” entitles tip to greater weight); Adams, 407 U.S. at 147, 92 S.Ct. 1921 (citing situation “when the victim of a street crime seeks immediate police aid and gives a description of his assailant” as example of tip that could support reasonable suspicion); Nelson, 284 F.3d at 482 (tip was more reliable when “posture of the caller allowed the officer to infer that the caller was himself a victim of" }, { "docid": "23549759", "title": "", "text": "pose this same credibility problem. Officer Smith’s conversation with the informant provided him with an opportunity to assess her credibility and demeanor. Two aspects of the encounter supported -the credibility of the informant’s report. The first was the close proximity of the informant’s residence to the illegal activities at 401 Canal Street. It was reasonable for Officer Smith to conclude that a woman living two doors from 401 Canal Street would know if drugs were being dealt from the porch there. Second, the informant’s proximity to 401 Canal Street at the time she spoke with Officer Smith further bolstered her credibility. By informing the police about her neighbors’ illegal activity, the informant exposed herself to the risk of reprisal. The fact that she provided the report to uniformed police officers in public only increased the probability that someone associated with the illegal activity would witness her aid to the police. Unlike the anonymous tipster, a witness who directly approaches a police officer can also be held accountable for false statements. As the Supreme Court has observed, citizens who personally report crimes to the police thereby make themselves accountable for lodging false complaints. See Illinois v. Gates, 462 U.S. 213, 233-34, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Adams v. Williams, 407 U.S. 143, 147 & n. 2, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Here the informant provided her home address to the officers. In doing so, the informant exposed herself to the repercussions of misleading or deceiving the police. All of these factors make the information provided in this case more trustworthy and reliable than the anonymous tip at issue in J.L. Indeed, courts have had no difficulty distinguishing between cases involving face-to-face encounters with informants and cases involving anonymous tipsters. See Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir.1991) (“[TJhough the informant in the present case had not previously been relied on by the officers, a face-to-face informant must, as a general matter, be thought more reliable than an anonymous telephone tipster.”);" }, { "docid": "23549760", "title": "", "text": "observed, citizens who personally report crimes to the police thereby make themselves accountable for lodging false complaints. See Illinois v. Gates, 462 U.S. 213, 233-34, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Adams v. Williams, 407 U.S. 143, 147 & n. 2, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Here the informant provided her home address to the officers. In doing so, the informant exposed herself to the repercussions of misleading or deceiving the police. All of these factors make the information provided in this case more trustworthy and reliable than the anonymous tip at issue in J.L. Indeed, courts have had no difficulty distinguishing between cases involving face-to-face encounters with informants and cases involving anonymous tipsters. See Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir.1991) (“[TJhough the informant in the present case had not previously been relied on by the officers, a face-to-face informant must, as a general matter, be thought more reliable than an anonymous telephone tipster.”); United States v. Gorin, 564 F.2d 159, 160-61 (4th Cir.1977) (same); United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir.1978) (same). Christmas contends, however, that the Terry pat-down was not justified because the informant’s statement was conclusory, the police officer had no prior knowledge of the informant’s credibility, and the officer did not corroborate her story. But accepting Christmas’ argument would mean incorporating into the reasonable suspicion determination a rule similar to the inflexible “two-pronged test” for probable cause of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Doing so would make little sense, especially since the Aguilar!Spinelli standard has been relaxed even in the context of probable cause, see Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Alabama v. White, 496 U.S. 325, 328, 330-31, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); United States v. Blackwood, 913 F.2d 139, 142 (4th Cir.1990), and replaced by a more" }, { "docid": "1154489", "title": "", "text": "a mistake has been made. Id.; See also, United States v. McBride, 801 F.2d 1045, 1046 (8th Cir.1986). Eisenberg’s claim is that the district court erred in its application of the law. We disagree. It is now firmly established that police officers may stop persons in the absence of probable cause under limited circumstances. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985); United States v. Doffin, 791 F.2d 118 (8th Cir.1986) (per curiam); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Officers may stop a moving vehicle, “to investigate a reasonable suspicion, based on specific and articulable facts, that its occupants are or have been involved in criminal activity.” United States v. Doffin, 791 F.2d at 120. This reasonable suspicion may be based on a tip from an informer. United States v. McBride, 801 F.2d at 1047; Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). The degree of reliability of an informant that must be shown to justify an investigatory stop is less than that required to establish probable cause. McBride at 1047. This circuit’s recent decision in McBride provides the correct analysis to apply when presented with facts similar to those presented here. In McBride, the court addressed the question of the degree to which police officers may rely on an anonymous tip in forming the reasonable, articulable suspicion necessary to justify an investigatory stop. McBride, 801 F.2d at 1046. The police had received a tip from an anonymous caller stating that a man had just left his house with four ounces of heroin and was driving a small silver foreign car. The caller provided the police with a license number and the direction in which the car was headed. The police checked the license number and found that it had been issued to a gray or silver Volkswagen, a car very similar to the car described by the caller. Almost five hours later, the vehicle was spotted about eight blocks from the intersection mentioned by the caller. The police" }, { "docid": "11840447", "title": "", "text": "it is here: the individual facts, taken in the aggregate, seem sufficient to trigger a reasonable suspicion that some criminal activity was afoot — and that the defendant was involved. See, e.g., Adams v. Williams, 407 U.S. 143, 147-48, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (informant’s report, high-crime area, and time of night combined to yield reasonable suspicion); United States v. Soares, 521 F.3d 117, 120-21 (1st Cir.2008) (time of night, high-crime area, suspect’s unusual behavior and use of profanity combined to yield reasonable suspicion); Romain, 393 F.3d at 72 (911 call, together with suspect’s visible agitation and belligerence combined to yield reasonable suspicion); United States v. Stanley, 915 F.2d 54, 56 (1st Cir.1990) (time of night, high-crime location, and unusual conduct combined to yield reasonable suspicion). The defendant asserts that an important integer in this equation — the 911 call-should not have been accorded any weight. In his view, that call exhibited insufficient indicia of reliability to warrant any reliance on it. In particular, he points to the anonymity of the caller and attempts to analogize the call to the anonymous tip discussed in Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). The analogy to J.L. is flawed. There, an unknown tipster called the police from an unknown location and gave them information. See id. at 270, 120 S.Ct. 1375. The Court’s opinion teaches that truly anonymous tips must be corroborated in some meaningful way in order to justify crossing the reasonable suspicion threshold. See id. The defendant’s argument overlooks that not every report from a nameless source is truly anonymous. As we have said, a label like “anonymous” has a chameleon-like quality; it can embrace a variety of things that differ from one another in important ways. See Romain, 393 F.3d at 74. Even though the caller in this case, like the caller in J.L., did not give his name, that similarity masks a salient difference between the two calls. The difference is subtle but significant. Here, the 911 caller confirmed his telephone number and agreed that the police could call him" }, { "docid": "23710150", "title": "", "text": "‘central requirement’ is one of reasonableness.” Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 948, 148 L.Ed.2d 838 (2001); accord Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). In determining the reasonableness of a search, the intrusion on an individual’s privacy interests is balanced against the search’s “promotion of legitimate governmental interests.” Maryland v. Buie, 494 U.S. 325, 331, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court carved out an exception to the general rule requiring probable cause for a search, permitting an investigating officer briefly to detain an individual for questioning if the officer has a reasonable suspicion “that criminal activity may be afoot.” The investigating officer may also frisk an individual for weapons if the officer reasonably believes that person to be armed and dangerous. See Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); McCardle v. Haddad, 131 F.3d 43, 49 (2d Cir.1997). In determining whether there is reasonable suspicion under the totality of the circumstances, “the court must evaluate those circumstances ‘through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.’ ” United States v. Bayless, 201 F.3d 116, 133 (2d Cir.2000) (quoting United States v. Oates, 560 F.2d 45, 61 (2d Cir.1977)). In Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), the Miami Dade police had received an anonymous call reporting “that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” Id. at 267, 120 S.Ct. 1375. Although recognizing that anonymous calls may in certain instances provide sufficient indicia of reliability to justify an investigatory search, the Supreme Court concluded that the “bare-bones” call at issue was not adequately reliable, as there was no predictive information about the suspect’s behavior that would permit the police to test the caller’s knowledge or credibility before stopping the suspect. Id. at" }, { "docid": "3220157", "title": "", "text": "and Commonwealth v. Barros, 435 Mass. 171, 755 N.E.2d 740, 745 n. 7 (2001) (explaining that J.L. does not distinguish among types of anonymous informants). Because the circumstances here are somewhat unusual, we decline to analyze hearsay tips from unnamed informants in the abstract and focus on the specific tip in this case. . Still, while the government analogizes to cases in which a person tells the police about things he has seen himself, this is simply not a case where the police received a \"personal observation” or \"first-hand account” of a crime. Cabral, from whom the police received the tip, had not observed anything on Shirley Street. See United Stales v. Cochrane, 896 F.2d 635, 641 (1st Cir.1990) (contrasting \"personal observation” with “hearsay”); see also United States v. Greenburg, 410 F.3d 63, 67 (1st Cir.2005). . The government emphasizes Coyne's ability to observe Cabral’s demeanor as he related the tip from his relative, and hence to evaluate the possibility that Cabral was fabricating that tip. These observations, however, did not address the possibility that the unnamed relative had fabricated the tip. The tip from Cabral’s relative simply cannot be deemed more reliable by virtue of Cabral’s face-to-face interaction with the police. Compare J.L., 529 U.S. at 276, 120 S.Ct. 1375 (Kennedy, J„ concurring). See also Adams, 407 U.S. at 146-47, 92 S.Ct. 1921 (distinguishing known face-to-face informant from anonymous phone tipper); United States v. Romain, 393 F.3d 63, 73-74 (1st Cir.2004) (distinguishing J.L. in a case where the police had face-to-face encounters with an unnamed informant that allowed them to gauge her reliability and because her appearance was known and she could be recognized and \"held accountable” for the information she had provided). . The government also cites United States v. Mitchell, 256 F.3d 734 (7th Cir.2001). In that case, the police responded within 90 seconds to an anonymous report of a shooting and found the defendant, who matched the description of the shooter. The police asked the defendant a question and then, after observing his behavior and realizing that he was a convicted felon known for his violence," } ]

[ { "docid": "21943788", "title": "", "text": "represent the same, and shall cause such goods or services to enter into commerce, . . . shall be liable to a civil action by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.” The governing case law in this Circuit points directly to the conclusion that Section 43(a) creates a cause of action for conduct such as that alleged here. In Bernard Food Industries v. Dietene Company, 415 F.2d 1279 (7th Cir. 1969), cert. denied, 397 U.S. 912, 90 S.Ct. 911, 25 L.Ed.2d 92 (1970), the Court held that where the defendant, in comparing its food product to plaintiff’s, made false representations of fact as to plaintiff’s product, a cause of action did not arise under Section 43(a). However, the Court clearly indicated that a cause of action would have arisen if defendant, in its comparision advertising, had also made false statements about its own product, saying: “Further support for the view that the Act does not embrace misrepresentations about a competitor’s product but only false or deceitful representations which the manufacturer or merchant makes about his own goods or services is contained in L’Aiglon Apparel v. Lana Lobell, Inc., 214 F.2d 649 (3d Cir. 1954), and General Pool Corp. v. Hallmark Pool Corp., 259 F.Supp. 383 (N.D.Ill.1966).” 415 F.2d at 1284. Thus, we hold that Bernard Food Industries v. Dietene Company, supra, re quires plaintiff to allege the following elements in order to state a claim upon which relief may be granted under Section 43(a) of the Lanham Act: (1) in its comparison advertisements, defendant made false statements of fact about its own product; (2) those advertisements actually deceived or have the tendency to deceive - a substantial segment of their audience; (3) such deception is material, in that it is likely to influence the purchasing decision; (4) defendant caused its falsely advertised goods to enter interstate commerce; and (5) plaintiff has been or is likely to be injured as the result of the foregoing either by direct diversion of sales from itself to" } ]

[ { "docid": "13267065", "title": "", "text": "of unfair competition, shows that the Defendants have also violated § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). That section created a new federal cause of action against “any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely; to describe or represent the same, and shall cause such goods or services to enter into commerce.” Such a cause of action is created in favor of “any person who believes that he is or is likely to be damaged by use of such false description or representation.” 15 U.S.C. § 1125(a); Alum-A-Fold Shutter Corp. v. Folding Shutter Corp., 441 F.2d 556 (5th Cir. 1971). Section 43(a) of the Lanham Act prohibits not only a “false designation of origin” but also “any false description or representation” in connection with any goods. Electronics Corp. of America v. Honeywell, Inc., 358 F.Supp. 1230-1233 (D.C.Mass.1973), aff’d., 487 F.2d 513 (1st Cir. 1973); Potato Chip Institute v. General Mills, Inc., 333 F.Supp. 173 (D.C.Neb.1971). The Court finds that the statements utilized in a number of the Defendants’ advertisements soliciting customers to “buy KFC boxes direct and save” and “buy direct and save $2.00/M on KFC boxes,” “buy direct and save,” etc., are misrepresentations no matter how such phrases are construed. The phrases represent either that the prospective customer would be purchasing the boxes “direct” from the manufacturer of the boxes when, in fact, Container is not the manufacturer, or they represent that the prospective purchaser would be buying the boxes “direct” from KFC Corp. when, in fact, they are not. Additionally, the Defendants’ advertisements mis represent and falsely describe the Defendants’ products stating “our KFC boxes meet quality standards,” “meets all standards,” and “save 50{5 per case on KFC boxes that meet exact specifications and quality of the boxes you are now buying,” etc. This conduct violates Section 43(a) of the Lanham Act and it has damaged the Plaintiff, entitling the Plaintiff" }, { "docid": "9371184", "title": "", "text": "economic significance and the proscribed adverse “effect.” * # # # * * As used in this statute and depending upon the factual context, “assets” may mean anything of value. 189 F.Supp. at 181-82. Even under these broad definitions, the allocation of additional shelf space to Frito-Lay for the duration of the TOP program cannot constitute the acquisition of an asset in violation of Section 7. Section 43(a) of the Lanham Act — Third Counterclaim For its third counterclaim, defendant alleges that plaintiff misrepresented its share of the market to “retailers” in order to secure additional shelf space, in violation of Section 43(a) of the Lanham Act. Section 43(a) provides, in pertinent part: Any person who shall ... use in connection with any goods or services ... a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce ... shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin ... or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation. 15 U.S.C. § 1125(a). In its effort to stretch the Lanham Act, defendant relies on two decisions from outside this circuit. In Walker-Davis Publications, Inc. v. Penton/IPC, Inc., 509 F.Supp. 430 (E.D.Pa.1981), the publisher of a controlled circulation magazine sued a competitor claiming that the competitor’s misrepresentation of its circulation and the nature of its audience had misled advertising buyers, and thereby caused the plaintiff to lose revenues from the sale of advertising. The court found that Section 43(a) was applicable, but that proof that advertising buyers had actually been misled was an essential element of the claim. In In re Uranium Antitrust Litigation, 473 F.Supp. 393 (N.D.Ill.1979), the court refused to dismiss a counterclaim that plaintiff’s misrepresentation to its customers of the quantity of uranium it could supply violated the Lanham Act. The court refused to apply the “inherent" }, { "docid": "22163062", "title": "", "text": "failure to enjoin Elby’s newspaper advertisements. Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1976), provides: Any person who shall . .. use in connection with any goods or services ... a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce . . . shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation. The intent of the Lanham Act is set forth in § 45 thereof, 15 U.S.C. § 1127 (1976): The intent of this chapter is to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce . . . [and] to protect persons engaged in such commerce against unfair competition .... It has been suggested that § 43(a) of the Lanham Act “created a sui generis federal statutory cause of action for ‘false representation,’ ” Chevron Chemical Co. v. Voluntary Purchasing Groups, Inc., 659 F.2d 695, 702 (5th Cir. 1981). The Fifth Circuit also concluded that “§ 43(a) proscribes not only what had been considered ‘false advertising’ but also what had been differentiated as ‘unfair competition.’ ” Id. In addition, the Chevron Chemical court described the distinctions between these two concepts: In sum, the essential misrepresentation in “false advertising,” which we have noted forms the basis of the “false representation” leg of § 43(a), is fundamentally different from the essential misrepresentation in “unfair competition”: in the former case, the defendant makes no secret of the origin of the goods in himself, but merely misrepresents certain qualities or characteristics that his goods may or may not have; in the latter case, the defendant misrepresents his goods to be those of another. Id. at 701 (footnote" }, { "docid": "23680399", "title": "", "text": "on a false advertising claim under the Lanham Act, a plaintiff must show that: (1) the defendant made false or misleading statements about its product in an advertisement; (2) the advertisement actually deceived, or had the tendency to deceive, the targeted audience; (3) the deception is material; (4) the defendant's advertised product traveled in interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false or misleading advertisements. See Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 915 F.Supp. 360, 364 (S.D.Fla. 1996) (citations omitted). . Finally, we note that this case is plainly different from Florida v. Russ, 778 So.2d 414 (Fla.Dist.Ct.App.2001). In that criminal case, the City Commission authorized Russ, the City Commissioner, to spend $600 to purchase toys for charity. The City Commission made out a check to Toys-R-Us in that amount and gave it to Russ to purchase the toys. At Toys-R-Us, he used the check to purchase $450 worth of toys for charity and $150 worth of merchandise for another customer. The other customer, in turn, gave Russ $100 in cash. Based on those facts, Russ was convicted of committing \"official misconduct,” for \"knowingly falsifying, or causing another to falsify, any official record or official document.” Fla. Stat. Ann. § 839.25. Russ’s negotiation of the check constituted an actual misrepresentation of fact — namely, that he had spent the entire $600 on toys for charity. In this civil case, on the other hand, there is not necessarily such a misrepresented fact underlying Double R’s designation of its products by particular model numbers. Rather, the jury found simply that Double R intended to create confusion in the minds of the potential buyers. Similarly, in A.J. Sheepskin & Leather Co., Inc. v. Colonia Ins. Co., 273 A.D.2d 107, 709 N.Y.S.2d 82 (N.Y.App.Div.2000), although the court found that the insurer had no duty to defend because there was \"no reason to suppose that there was a reasonable possibility that liability in that [trademark infringement] action might be premised on unintentional or unknowing conduct not embraced by [the] exclusion,”" }, { "docid": "14261076", "title": "", "text": "half-heartedly argues that the definition of a \"person” who may be held liable under § 1125 does not include the United States and that, because waivers of sovereign immunity must be \"unequivocally expressed,” United States v. Nordic Village, 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992), the Lanham Act's waiver does not extend to § 1125. (Def.'s Mot. at 27.) However, the waiver clearly applies to suits brought for “any violation of this chapter,\" which unequivocally shows that Congress intended to waive sovereign immunity for violations of § 1125. 15 U.S.C. § 1122 (emphasis added). . Defendant argues that companies may advertise one product to the public and subsequently sell another without violating the Lanham Act. (Def.'s Reply at 18 (citing Norton Tire Co. Inc. v. Tire Kingdom Co., Inc., 858 F.2d 1533, 1535 (11th Cir.1988) (\"dissuading] customers from purchasing the advertised name brand tires and instead encouraging] them to purchase private brand tires” was a \"sharp practice” but did not violate Lanham Act)).) Defendant suggests that the DOJ merely advertised TrustedAgent, then decided to stop including it in its FISMA solution. (Def.'s Mot. at 30; Def.’s Reply at 18.) However, plaintiff alleges that defendant advertised that TrustedAgent was a part of CSAM, while at the same time refusing to sell it to the agencies and replacing it with its own proprietary software. (Compl. ¶¶ 45-50.) In Norton Tire terms, plaintiff alleges that defendant advertised a certain name-brand tire despite refusing to carry it in stock and refusing to sell any brand except for its own model. Thus, even if Norton Tire were the law of this Circuit, it would not apply here. . \"Passing off (or palming off, as it is sometimes called) occurs when a producer misrepresents his own goods or services as someone else's.” Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 28 n. 1, 123 S.Ct. 2041, 156 L.Ed.2d 18 (2003). . Although the issue is not raised by the parties in this case, the extent to which \"use in commerce” is an element in cases of trademark infringement is" }, { "docid": "23097684", "title": "", "text": "& Supp. IV 1992) protects registered trademarks and provides in part: (1) Any person who shall, without the consent of the registrant' — • (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, ... shall be liable in a civil action by the registrant for the remedies hereinafter provided. . Section 43(a) of the Lanham Act, 15 U.S.C. § 1125 (1988 & Supp. IV 1992), which provides protection for both registered and unregistered marks, states in part: (a)(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, 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, services, or commercial activities by another person, ... shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. . It is not uncommon for one business to use multiple brand names for what is essentially the same product; the use of different brand names allows Fisons to sell peat moss to a lawn and garden store under a brand name not sold by a nearby competing discount outlet. . But in 1990, a year in which Fisons had retail sales of Fairway peat moss in 17 states for a total of $684,316, only one retailer published an advertisement for Fairway; it sought reimbursement for $1,232.57. .One of the names explored for Vigoro's new line of fertilizers was ‘‘Golf Course Green,” but the advertising agency's trademark attorney found that a subsidiary of" }, { "docid": "3958019", "title": "", "text": "3. Until further notice, MGM shall be enjoined from advertising specific wine or liquor products in bottle or case sale prices except under the following conditions: a. MGM may advertise a bottle sale price for a specific product if each participating MGM retail store has in stock at least one case of the product on the first day of the sale period; b. MGM may advertise both a bottle and a case sale price for a specific product if each participating MGM retail store has in stock at least two cases of the product on the first day of the sale period; c. Even if these stock requirements are not met, MGM may advertise a specific bottle or case price if: (1) The text associated with the specific product clearly states that the item is not available at all participating stores and clearly identifies the stores not meeting the stock requirements; or, (2) The text associated with the specific product states that the product is available for “special order only,” provided that MGM has received documented assurance from its distributors that each participating store will, during the relevant sale period, have access to the product (a) within a reasonable amount of time and (b) in a quantity sufficient to meet reasonably anticipated demands for the product at that store. 4. This injunction will not take effect until plaintiff posts a bond or provides other security in the amount of $50,000. . The court cannot agree, however, with the unsupported assertion in Tire Kingdom that Lanham Act claims based on a product’s claimed availability are “limited to cases of intentional, constant, unavailability as opposed to 'bait and switch’ claims.” 915 F.Supp. at 368. The court believes that a per se rule of this kind is inappropriate given (1) the plain language of section 43(a), which prohibits any advertisement that misrepresents the quality or character of the advertised goods, and (2) the FTC false advertising regulations prohibiting “bait advertising.” See 16 C.F.R. §§ 238.0-238.4. The better approach is to analyze a plaintiff’s false advertising claims under the standard elements of falsity, consumer" }, { "docid": "22308575", "title": "", "text": "Likelihood of Success on the Merits of the False Advertising Claims The district court did not clearly err in its factual findings that Axiom’s representations are literally false and material to consumers’ purchasing decisions, and thus NAM and Adagen demonstrated a likelihood on success on the merits of their false advertising claims. Regarding false advertising, section 43(a) of the Lanham Act provides, in relevant part, as follows: (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a) (2006). To establish a likelihood of success on the merits of a false advertising claim under this section, the movant must demonstrate the following: “(1) the ads of the opposing party were false or misleading, (2) the ads deceived, or had the capacity to deceive, consumers, (3) the deception had a material effect on purchasing decisions, (4) the misrepresented product or service affects interstate commerce, and (5) the movant has been — or is likely to be — injured as a result of the false advertising.” Johnson & Johnson, 299 F.3d at 1247. Axiom only challenges the district court’s conclusions regarding the first and third elements— that is, whether Axiom’s statements are literally false and whether the state ments have a material effect on purchasing decisions. 1. Literal Falsity The district court did not clearly err when it concluded that Axiom made literally false statements in its advertising. First, the district court did not clearly err when it ruled that Axiom’s claims about an affiliation with NASA are literally false. Although one engineer with NASA" }, { "docid": "16140009", "title": "", "text": "read the confusion requirement too narrowly. In order to be confused, a consumer need not believe that the owner of the mark actually produced the item and placed it on the market. The public’s belief that the mark’s owner sponsored or otherwise approved the use of the trademark satisfies the confusion requirement.” (citations omitted)); see also Team Tires Plus, Ltd. v. Tires Plus, Inc., 394 F.3d 831, 835 (10th Cir.2005) (“[T]he relevant confusion under trademark law is not limited to confusion of consumers as to the source of the goods, but also includes confusion as to sponsorship or affiliation, such as a consumer’s mistaken belief that a retailer is part of a larger franchising operation.”); Nike, Inc. v. “Just Did It” Enters., 6 F.3d 1225, 1228-29 (7th Cir.1993) (“[C]ustomer ‘confusion’ need not be restricted to a mistake regarding the source of the goods; the court should also consider whether the customer would believe that the trademark owner sponsored, endorsed or was otherwise affiliated with the product.”). This broader prohibition on consumer confusion as to sponsorship or approval is also made explicit in Section 43 of the Lanham Act, which prohibits false advertising and false designation of origin by providing for civil penalties to a person injured by: Any person who, on or in connection with any goods or services, ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, 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, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities.... 15 U.S.C. § 1125(a)(1) (emphases added). Indeed, our case law demonstrates that consumer confusion is plainly not limited to source confusion. For example," }, { "docid": "2889281", "title": "", "text": "are not before us. In the district court, each company attacked its opponent’s statements that its puppy food was \"more digestible.\" See id. at 211. In addition, ALPO challenged Ralston’s claim that Puppy Chow is “recommended 8 to 1 over any other puppy food by veterinarians.” Id. The district court rejected all of these Lanham Act claims, and neither party has appealed this part of the decision. Finally, Ralston has not appeal ed the district court's rejection of its claim that ALPO's publicity and lobbying efforts constituted common-law defamation. See id. at 211-12. . When the conduct in question occurred, the pertinent parts of section 43(a) read: Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, ... any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce ... shall be liable to a civil action ... by any person who believes that he is or is likely to be damaged by the use of any such false description or representation. 15 U.S.C. § 1125(a) (1982). While the case was pending before the district court, however, Congress redrafted section 43(a), sharpening the section’s focus on false and deceptive advertising: Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (2) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely" }, { "docid": "783171", "title": "", "text": "colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or (b) reproduce, counterfeit, copy, or color-ably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive. shall be liable in a civil action by the registrant for the remedies hereinafter provided. 15 U.S.C. § 1114(1). Section 43(a) of the Lanham Act provides: Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall . cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation. 15 U.S.C. § 1125(a). . Section 1 of the New Jersey Fair Sales Act provides: No merchant, firm or corporation shall appropriate for his or their own use a name, brand, trade-mark, reputation or good will of any matter in whose product such merchant, firm or corporation deals. N.J.Stat.Ann. 56:4-1. ." }, { "docid": "3957995", "title": "", "text": "Corp. v. Clorox Co., 140 F.3d 1175, 1179. Section 43(a)(1)(b) of the Lanham Act prohibits “commercial advertising or promotion [that] misrepresents the nature, characteristics, qualities, or geographic origin of [the advertiser’s] or another person’s goods, services, or commercial activities.” As courts have noted, “[w]hether a product is available goes directly to one of that product’s characteristics.” Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 915 F.Supp. 360, 368 (S.D.Fla.1996). Further, the Federal Trade Commission (“FTC”), the administrative agency charged by Congress with preventing unfair competition, see 15 U.S.C. §§ 45, 46, has promulgated a regulation stating that “no advertisement containing an offer to sell a product should be published when the offer is not a bona fide effort to sell the advertised product.” 16 C.F.R. § 238.1. The FTC suggests that an advertised offer will not be considered bona fide when it “fail[s] to have available at all outlets listed in the advertisement a sufficient quantity of the advertised product to meet reasonably anticipated demands, unless the advertisement clearly and adequately discloses that supply is limited and/or the merchandise is available only at designated outlets.” Id. § 238.3(c). Thus, under the plain language of the statute and the FTC’s advertising regulations, MGM’s alleged conduct would appear to fall squarely within the ambit of the Lanham Act. See B. Sanfield, Inc. v. Finlay Fine Jewelry Corp., 168 F.3d 967, 973 (7th Cir.1999) (“[A]s the administrative agency charged with preventing unfair trade practices, the [FTC’s] assessment of what constitutes deceptive advertising commands deference from the judiciary.”)- To prevail on a false advertising claim under section 43(a), a plaintiff must prove (1) that defendant made a false statement of fact in a commercial advertisement about its own or another’s product; (2) that the statement actually deceived or would tend to deceive a substantial segment of its audience; (3) that the deception is material, in that it is likely to influence the purchasing decision; (4) that defendant caused its false statement to enter interstate commerce; and (5) that the plaintiff has been or likely to be injured as a result of the false" }, { "docid": "3957994", "title": "", "text": "merits; (2) the threat of irreparable harm to the movant in the absence of relief; (3) the balance between that harm and the harm that the relief would cause to the other litigants; and (4) the public interest. 640 F.2d 109, 112-114 (8th Cir.1981).- The court weighs the four factors to determine whether injunctive relief is warranted. See id. at 113; West Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1222 (8th Cir.1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987). The plaintiff bears the burden of proof concerning each of them. See Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir.1987). 1. Lanham Act Claim: Likelihood of Success on the Merits Surdyk’s brings a claim under section 43(a) of the Lanham Act based on MGM’s alleged practice of advertising for sale wines and liquors that are unavailable in the supplies advertised. Congress enacted the Lanham Act to protect persons engaged in commerce against certain forms of unfair competition, including false or deceptive advertising. See United Industries Corp. v. Clorox Co., 140 F.3d 1175, 1179. Section 43(a)(1)(b) of the Lanham Act prohibits “commercial advertising or promotion [that] misrepresents the nature, characteristics, qualities, or geographic origin of [the advertiser’s] or another person’s goods, services, or commercial activities.” As courts have noted, “[w]hether a product is available goes directly to one of that product’s characteristics.” Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 915 F.Supp. 360, 368 (S.D.Fla.1996). Further, the Federal Trade Commission (“FTC”), the administrative agency charged by Congress with preventing unfair competition, see 15 U.S.C. §§ 45, 46, has promulgated a regulation stating that “no advertisement containing an offer to sell a product should be published when the offer is not a bona fide effort to sell the advertised product.” 16 C.F.R. § 238.1. The FTC suggests that an advertised offer will not be considered bona fide when it “fail[s] to have available at all outlets listed in the advertisement a sufficient quantity of the advertised product to meet reasonably anticipated demands, unless the advertisement clearly and adequately discloses that supply" }, { "docid": "17045671", "title": "", "text": "to the merits, McNeil had failed to make the requisite showing of irreparable harm and a balance of equities tipping decidedly in its favor. However, we granted the parties an expedited trial on the merits. Section 1125(a) provides in pertinent part that . any person who shall . use in connection with any goods . any false description or representation,, including words or symbols tending to falsely describe or represent the same, and shall cause such goods ... to enter into commerce, and any person who shall with knowledge of the falsity of such . . . description or representation cause or procure the same to be transported or used in commerce . shall be liable to a civil action by any person who believes that he is or is likely to be damaged by the use of any such false description or representation. Neither party challenges this court’s jurisdiction, but we must independently determine the matter nevertheless. While most claims of false advertising asserted under 15 U.S.C. § 1125(a) have involved situations where the alleged harm arose from the misappropriation or misuse of a competitor’s name or trademark or a distinctive feature of the competitor’s prod uct, false advertising which misleads the consumer concerning a quality or attribute of a product “in commerce” and falsely disparages a competitor’s product states a claim under the Act as well. American Brands, Inc. v. R. J. Reynolds Tobacco Co., 413 F.Supp. 1352 (S.D.N.Y.1976). McNeil has alleged that AHP’s false representations are deceiving consumers and damaging Tylenol’s reputation and thus has standing to charge AHP with violating 15 U.S.C. § 1125. Skil Corp. v. Rockwell International Corp., 375 F.Supp. 777 (N.D.Ill.1974). McNeil does not, however, have standing to charge AHP with violating the branding provisions of the Food, Drug and Cosmetic Act. See 21 U.S.C. § 337; Florida ex rel. Broward County v. Eli Lilly & Co., 329 F.Supp. 364 (S.D.Fla.1971). Accordingly, we have jurisdiction pursuant to 28 U.S.C. § 1338 over the complaint and all counterclaims except that alleging violations of 21 U.S.C. §§ 331 and 352(f). The statute prohibits the use" }, { "docid": "21466982", "title": "", "text": "reviewed carefully the data collected. It also has attempted to qualify the advertising claims to render them truthful yet competitive. Therefore, attorneys’ fees are not awarded in this case. Of course, Tambrands is entitled to costs. CONCLUSION Because I find that defendants’ advertising claims for New E.P.T. Plus as described above are facially false, defendants are permanently enjoined from using these claims in their advertising. Tambrands is awarded costs and denied attorneys’ fees. A permanent injunction shall be settled on notice within five days of the date of this opinion. SO ORDERED. . Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), provides in relevant part: [a]ny person who shall affix, apply or annex or use in connection with any goods ... any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce ... shall be liable to a civil action by any person ... who believes that he is or is likely to be damaged by the use of any such false description or representation. . At trial, the parties agreed that laches and unclean hands were no longer at issue. Defendants had raised these affirmative defenses to the claims in the complaints, and Tambrands had raised these affirmative defenses to the counterclaims. . References to \"Tr.\" accompanied by a name and page number are to the transcript of the trial testimony of the named witness. . Defendants advertised the challenged claims in national television commercials, print advertisements in consumer and professional publications, press releases, package copy, package inserts, and selling sheets distributed to Warner-Lambert’s sales force. . Defendants suggested that all negative results could be learned within ten minutes, because a true negative result is as accurate at ten minutes as it is at thirty minutes. (See Clark Tr. at 694-95; Akin Tr. at 613-14). This argument is frivolous in light of defendants’ warnings, e.g., that “to verify negative results, the test should be rechecked at 30 minutes.” (PI. Ex. 3)." }, { "docid": "14259426", "title": "", "text": "at trial on its claim that the statements in the catalogs are statements made to Customs as part of Defendants’ invoice, Defendants had an obligation under 19 U.S.C. § 1485(a)(4) to “produce to the appropriate customs officer any invoice, paper, letter, document or information received showing that such ... statements are not true or correct.” A disclaimer might be effective as a general notice to customers that the products offered in an advertisement may not be available in the exact form advertised. See Def.’s Supp. Pretrial Mem. at 4 (citing Norton Tire Co. v. Tire Kingdom Co., 858 F.2d 1533 (11th Cir.1988)). A disclaimer is not, however, effective against the statutory obligation to inform Customs that a statement that was once true-here, that the bearings were composed of 440C-is no longer true. Moreover, the disclaimer does not prevent Plaintiff, as a matter of law, from proving materiality. Customs’ regulation, 19 C.F.R. Part 171 App. B(A), provides that a statement “is material if it has the potential to alter the ... admissibility of merchandise.... ” 19 C.F.R. Part 171 App. B(A) (1987). Plaintiff bases its “materiality” claim on the argument that the merchandise was potentially inadmissible due to a possible or actual Lanham Act violation pursuant to 15 U.S.C. § 1125(a) (“Section 43(a)”). See Pl.’s Supp. Pretrial Mem. at 8. In a case involving another section of the Lanham Act, 15 U.S.C. § 1124, the court explained that, “Although courts may also consider an alleged infringer’s use of a disclaimer ... the mere presence of a disclaimer does not necessarily prevent customer confusion.” Ross Cosmetics Distribution Centers, Inc. v. United States, 18 CIT 979, 987 (1994). A statement that results in “consumer confusion” is also a ground for finding a violation of Section 43(a). Thus, whether or not the disclaimer would prevent a conclusion that the statement was “literally false” under Section 43(a), a Customs official could not, upon reading the disclaimer, conclude definitively that the merchandise would not result in customer confusion and thus, would be admissible. This Court concludes that the mere presence of the disclaimer does not, as" }, { "docid": "22163061", "title": "", "text": "at 514 F.Supp. 704 (S.D.Ohio 1981), issued a preliminary injunction enjoining Elby’s from “using the ‘Big Boy’ trademark and service mark in their WTRF advertising without making a prominent disclosure that the Elby’s Family Restaurants within the state of Ohio are not associated with the ‘Big Boy’ restaurant organization. Alternatively, defendants may wish to eliminate all reference to the ‘Big Boy’ mark on WTRF advertisements.” Id. at 712. Judge Duncan based his holding solely on “the unfair competition provisions of [§ 43(a) of] the Lanham Act, 15 U.S.C. § 1125(a),” id., and expressed no view on Frisch’s alternative theories of recovery. However, Judge Duncan refused to extend his preliminary injunction to Elby’s newspaper and radio advertisements, noting that Frisch’s failed to establish a “causal connection between the public’s confusion [the confusion of eastern Ohio consumers over the availabili ty of Big Boy products at Ohio Elby’s restaurants] and defendants’ advertising in such media.” Id. at 711 (emphasis in original). Elby’s has appealed the grant of the WTRF preliminary injunction, and Frisch’s cross-appealed the district court’s failure to enjoin Elby’s newspaper advertisements. Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1976), provides: Any person who shall . .. use in connection with any goods or services ... a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce . . . shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation. The intent of the Lanham Act is set forth in § 45 thereof, 15 U.S.C. § 1127 (1976): The intent of this chapter is to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce . . ." }, { "docid": "22308574", "title": "", "text": "Axiom sold both lines, or that there was some other relationship between Axiom and NAM, Axiom’s use of the meta tags caused a likelihood of actual source confusion. Thus, the instant case is very different from the product placement in a department store. This case is also very different from Brookfield where there was never source confusion. Finally, the instant ease is not subject to the criticism leveled by Judge Berzon. For the foregoing reasons, and under the particular factual circumstances of this case, we cannot conclude that the district court’s finding of a likelihood of confusion is clearly erroneous. Because the district court in this case was not clearly erroneous in finding (1) that plaintiffs possessed valid trademarks; (2) that defendants used those marks, (3) in commerce, (4) in connection with the advertisement of defendant’s goods; and (5) that such use caused a likelihood of confusion to consumers, we conclude that the district court did not err in concluding that plaintiffs demonstrated a likelihood of success with respect to the trademark infringement claim. B. Likelihood of Success on the Merits of the False Advertising Claims The district court did not clearly err in its factual findings that Axiom’s representations are literally false and material to consumers’ purchasing decisions, and thus NAM and Adagen demonstrated a likelihood on success on the merits of their false advertising claims. Regarding false advertising, section 43(a) of the Lanham Act provides, in relevant part, as follows: (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a)" }, { "docid": "8457966", "title": "", "text": "PER CURIAM: Plaintiff Tire Kingdom challenges the district court’s award of fees and costs to Defendants Bridgestone/Firestone, .Inc., Morgan Tire and Auto, Inc. and Larry Morgan. We affirm. I. Plaintiff, a large multi-brand tire dealer in Florida, sued Defendants for alleged violations of the Lanham Act and state law. Plaintiff alleged that Defendants engaged in “schemes of deceptive trade practices” through the use of false multi-brand advertising. The scheme allegedly involved advertising various brands of tires to attract customers to the store and, then, switching those customers to purchase Firestone tires. The district court granted summary judgment for Defendants on the Lanham Act claim and dismissed without prejudice the state law claims. We affirmed. Tire Kingdom v. Morgan Tire & Auto, 136 F.3d 139 (11th Cir.1998) (Table) (per curium). While the merits appeal was pending with this court, Defendants filed for attorney’s fees and costs. The district court granted the motion for fees and costs, but stayed consideration of the amount of the fee award until we disposed of the then-pending appeal. After we affirmed summary judgment for Defendants, the district court determined the fee amount and awarded $328,501.59 in fees and $26,417.79 in costs to defendants Morgan Tire and Morgan and $372,615.00 in fees and $21,953.00 in costs to defendant Bridge-stone. The court also awarded interest on the fee award from the date of the initial order granting the motion for fees to the date of payment. II. As an initial matter, we address Plaintiffs argument that Defendants failed to file their motions for fees within 14 days after entry of judgment, as Fed.R.Civ.P. 54(d)(2)(B) requires. The fourteen-day limit applies “[ujnless otherwise provided by ... order of the court....” Id. The district court relied on local rule 7.3, which allows a motion for fees to be filed 30 days after judgment. S.D. Fla. L.R. 7.3. Plaintiff argues that the local rule conflicts with the federal rule and that the federal rule governs. See Fed.R.Civ.P. 83(a)(1) (“Each district court ... may ... make and amend rules governing its practice ... consistent with [these] rules.”). We recently considered this issue in" }, { "docid": "14261075", "title": "", "text": "and defendant. (Def.'s Mot. at 7; Def.’s Reply at 5.) But plaintiff makes no allegations about the license, other than that it existed. (Compl. ¶ 17.) Though plaintiff's complaint before the DOJ Procurement Services Staff alleged breach of its licensing agreement (CDA Claim at 5-6), plaintiff makes no such claim here. Moreover, plaintiff's opposition brief argues that the source of its rights are \"not contractual” and that it entered into a joint venture with defendant \"separate from a contract.” (PL's Opp'n at 5-6 & n. 1.) Therefore, the licensing agreement does not serve as the basis for plaintiff’s claims. . The Supreme Court held that a section of the Lanham Act abrogating state sovereign immunity violated the Eleventh Amendment. See Coll. Savs. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 691, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). This decision, which the Court issued before Congress passed the Trade Amendments Act, \"[did] not [a]ffect the provision ... that waives Federal government immunity from suit.” See 145 Cong. Rec. 15,496 (1999). . Defendant half-heartedly argues that the definition of a \"person” who may be held liable under § 1125 does not include the United States and that, because waivers of sovereign immunity must be \"unequivocally expressed,” United States v. Nordic Village, 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992), the Lanham Act's waiver does not extend to § 1125. (Def.'s Mot. at 27.) However, the waiver clearly applies to suits brought for “any violation of this chapter,\" which unequivocally shows that Congress intended to waive sovereign immunity for violations of § 1125. 15 U.S.C. § 1122 (emphasis added). . Defendant argues that companies may advertise one product to the public and subsequently sell another without violating the Lanham Act. (Def.'s Reply at 18 (citing Norton Tire Co. Inc. v. Tire Kingdom Co., Inc., 858 F.2d 1533, 1535 (11th Cir.1988) (\"dissuading] customers from purchasing the advertised name brand tires and instead encouraging] them to purchase private brand tires” was a \"sharp practice” but did not violate Lanham Act)).) Defendant suggests that the DOJ merely advertised TrustedAgent," } ]

[ { "docid": "8007635", "title": "", "text": "In parsing this statutory language, the Court in Slack first observed that “Congress expressed no intention to allow trial court procedural error to bar vindication of substantial constitutional rights on appeal.” Id., 529 U.S. at 483, 120 S.Ct. 1595. Nonetheless, the Court went on to hold: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. This construction gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the “substantial showing” standard provided in Barefoot, supra, at 893, and n. 4, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090, and adopted by Congress in AEDPA. Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Id. at 484, 120 S.Ct. 1595. Furthermore, the Court went on to underscore that this inquiry has two components, “one directed at the underlying constitutional claims and one directed at the district court’s procedural holding.” Id. at 485, 120 S.Ct. 1595. In the case before us, the district court granted summary judgment to the respondent on a number of claims based upon procedural default. Yet, in granting a certificate of appealability as to all claims, the court did not provide us with any analysis to indicate that it had engaged in the two-pronged inquiry set forth in Slack as to each of the procedurally defaulted claims. Rather, the court simply ordered, “In accordance with the standard set forth in Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct." } ]

[ { "docid": "1843114", "title": "", "text": "1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Ten- nard v. Dretke, 542 U.S. at -, 124 S.Ct. at 2569; Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604). Accord, Tennard v. Dretke, 542 U.S. at -, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge on appeal this Court’s dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling." }, { "docid": "7963401", "title": "", "text": "2253(c)(2). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals....'\" Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (quoting 28 U.S.C. § 2253(c)(1)). “The COA statute ... requires a threshold inquiry into whether the circuit court may entertain an appeal.” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); citing Hohn v. United States, 524 U.S. 236, 248, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998)). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (citation and internal quotation marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997). The analysis “requires an overview of the claims in the habeas petition and a general assessment of their merit.” Miller-El, 123 S.Ct. at 1039. The court must look to the district court’s application of AEDPA to the petitioner’s constitutional claims and determine whether the court’s resolution was debatable among reasonable jurists. Id. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. Rather, “ ‘[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’ ” Id. at 1040. (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). IV. Graves claims first that he is actually innocent of the crime and that the imposition" }, { "docid": "1569923", "title": "", "text": "(2003) (citing 28 U.S.C. § 2253(c)(1)). “The COA statute requires a threshold inquiry into whether the circuit court may entertain an appeal.” Id. (citing Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Hohn v. United States, 524 U.S. 236, 248, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998)). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983) (citation and internal quotation marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997). The analysis “requires an overview of the claims in the habeas petition and a general assessment of their merit.” Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931. We must look to the district court’s application of AEDPA to the petitioner’s constitutional claims and determine whether the court’s resolution was debatable among reasonable jurists. Id. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. Rather, “ ‘[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’ ” Id. at 1040. (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542). In making this assessment, we must be mindful of the deferential standard of review the district court applied to Miniel’s claims as required by AEDPA. Hill v. Johnson, 210 F.3d 481, 484-85 (5th Cir.2000). Section 2254(d) requires a federal district court to give deference to determinations by a state habeas" }, { "docid": "13172690", "title": "", "text": "Cir.1997); 28 U.S.C. § 2253(c)(3). A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 2569, 159 L.Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569; Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the district court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604); accord Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge" }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "21214621", "title": "", "text": "To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569; Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[WJhere a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604). Accord Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge on appeal this Court’s dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (holding when a district court denies a habeas claim on procedural" }, { "docid": "1460756", "title": "", "text": "further. Tennard v. Dretke, 124 S.Ct. at 2569; Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate that reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604); accord Tennard v. Dretke, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge on appeal this Court’s dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (holding when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court’s procedural ruling was correct). Viewed in proper context, there is no basis for disagreement among jurists" }, { "docid": "11755737", "title": "", "text": "appeal.” Id. (citing Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Hohn v. United States, 524 U.S. 236, 248, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998)). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (citation and internal quotation marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997). The analysis “requires an overview of the claims in the habeas petition and a general assessment of their merit.” Miller-El, 123 S.Ct. at 1039. The court must look to the district court’s application of AEDPA to the petitioner’s constitutional claims and determine whether the court’s resolution was debatable among reasonable jurists. Id. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. Rather, “ ‘[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’ ” Id. at 1040. (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542). IV. Newton raises two issues in this Application for Certificate of Appealability (COA): (1) the trial court denied petitioner her 6th Amendment right to be represented by counsel of her choice when it denied her motion for continuance so Newton could substitute retained counsel; and (2) the Texas special issues did not permit the jury to consider and give effect to Newton’s mitigating evidence of youth, good character, cooperation with police, unfaithful/drug dealing spouse, and impoverished background. A. Newton claims first" }, { "docid": "7870290", "title": "", "text": "1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; cf. Miller-El, 123 S.Ct. at 1046 (Scalia, J., concurring) (noting that “a habeas petitioner seeking to appeal a district court’s denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling”). The Supreme Court has stated that “[t]his construction [of the standard applicable when the district court rejects a claim on procedural grounds] gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the ‘substantial" }, { "docid": "2875794", "title": "", "text": "action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the con stitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certifícate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. Because the Court agrees with and adopts the Magistrate Judge’s decision to sua sponte recognize and enforce the default of Petitioner’s first ground for relief, and because the Court views as a “close call” whether the dismissal of prospective juror Wells was proper under Wainwright v. Witt, 469 U.S. at 424,105 S.Ct. 844, even though the Court was prevented by the procedural default from addressing the merits of the claim, the Court is satisfied that reasonable jurists could find debatable" }, { "docid": "2875793", "title": "", "text": "opportunity to respond via his objections to the Report and Recommendation, which this Court found unpersuasive. Moreover, this Court fully agrees with the Magistrate Judge’s rationale that “it is particularly appropriate” for the Court to sua sponte recognize a procedural default where, as here, Petitioner went out of his way to argue that state law provided him more protection than corresponding federal law and to urge the state courts to apply only state law to his claim. (Doc. # 94, at 1072-73.) For the foregoing reasons, the Court overrules Petitioner’s objections and agrees with the Magistrate Judge’s Report and Recommendations to deny this claim as waived due to Petitioner’s failure to fairly present the claim to the state courts as a federal claim. Because this Court concludes that Petitioner waived this claim, the Court does not reach the merits and expresses no opinion about the Magistrate Judge’s Report and Recommendations rejecting the claim on the merits. The Court DENIES Petitioner’s first ground for relief as waived. An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the con stitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)." }, { "docid": "21706393", "title": "", "text": "on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. 2562; Miller-El v. Cockrell, 537 U.S. at 336; 123 S.Ct. 1029 Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. 1595; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. 1029 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. 1595); accord Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. 2562. In a case in which the petitioner wishes to challenge on appeal this Court’s dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. 1595 (holding when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows reasonable jurists would find it debatable whether" }, { "docid": "23054107", "title": "", "text": "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “‘adequate to deserve encouragement to proceed further.’” Barefoot, 463 U.S. at 893, and n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (“sum[ming] up” the “‘substantial showing’ ” standard). Slack, 529 U.S. at 483-84, 120 S.Ct. 1595. In sum, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 484, 120 S.Ct. 1595. As we stated in Lambright, this amounts to a “modest standard.” 220 F.3d at 1024. Indeed, “we must be careful to avoid conflating the standard for gaining permission to appeal with the standard for obtaining a writ of habeas corpus.” Id. at 1025. Notably, the Slack Court quoted favorably from Barefoot, remarking that AEDPA § 2253(c) was modeled after the language in Barefoot and simply substituted the word “constitutional” for “federal” with respect to the kind of rights violation that must be demonstrated. Slack, 529 U.S. at 480-84, 120 S.Ct. 1595. As a result, the Supreme Court’s admonition in Barefoot— that in examining an application to appeal from the denial of a habeas corpus petition, “obviously the petitioner need not show that he should prevail on the merits [since h]e has already failed in that endeavor” — likewise applies to habeas petitioners attempting to meet the Slack standard for a COA. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383 (internal quotation marks and citations omitted). Furthermore, any doubts about whether the petitioner has met the Barefoot standard must be resolved in his favor. See Slack, 529 U.S. at 483-84, 120 S.Ct. 1595; Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383; see also Jefferson, 222 F.3d at 289 (holding that a COA should issue unless the claims are “utterly without merit”). Consistent with Slack, Lambright, Solis, and Schell, and pursuant to Federal Rule of Appellate Procedure 22(b)(2), we therefore treat Silva’s notice of appeal from the district court’s ruling as an application for a COA from" }, { "docid": "7870289", "title": "", "text": "(Michie 2000) (vesting exclusive jurisdiction in the Supreme Court of Virginia of petitions for writs of habeas corpus by petitioners held under a sentence of death), and was denied relief. Thereafter, he filed a petition pursuant to 28 U.S.C.A. § 2254 in the United States District Court for the Western District of Virginia. On March 28, 2002, the district court denied relief on that petition. Swisher seeks a COA as to numerous claims raised in the district court. We address the following three claims below: (1) that the Commonwealth knowingly elicited perjurious testimony; (2) that Swisher received ineffective assistance of counsel; and (3) that the Commonwealth failed to turn over Brady material. II. We may only issue a COA if Swisher has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West Supp.2002). Absent a COA, “an appeal may not be taken” to this court from the district court’s denial of relief on the § 2254 petition. Id. § 2253(c)(1); cf. Miller-El v. Cockrell, - U.S. -, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural" }, { "docid": "15137366", "title": "", "text": "petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certificate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. This issue was central to petitioner’s trial and this Court’s resolution of the issue is central to this habeas proceeding. This claim not only is fact-intensive but also implicates numerous fundamental rights. That being so, the Court is more than satisfied that reasonable jurists could find its decision debatable or wrong and accordingly certifies ground one for appeal. Second Ground for Relief: Petitioner was denied the effective assistance of counsel in violation of the U.S. Constitution Amendments VI and XIV. In his second ground for relief, petitioner raises eleven allegations of ineffective assistance of trial counsel. (Doc. # 15, at ¶¶ 9-23.) The Court will consider each allegation in turn. The right to counsel guaranteed by the Sixth Amendment is the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The standard for demonstrating a claim of ineffective assistance of counsel is composed of two parts: 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 deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair" }, { "docid": "21868709", "title": "", "text": "that he had motioned to his pocket when he was in the store, the jury could also reasonably infer that the gun was physically available and accessible to him during the in-store robbery. In short, viewing all the testimony in the light most favorable to the prosecution, the court concludes that the Delaware Supreme Court did not unreasonably apply Jackson in finding sufficient evidence to sustain petitioner’s weapons conviction. Thus, this claim does not warrant habeas relief under § 2254(d)(1). Y. CERTIFICATE OF APPEALABILITY Finally, the court must decide whether to issue a certificate of appealability. See Third Circuit Local Appellate Rule 22.2. The court may issue a certificate of appeal-ability only when a petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates “that reasonable jurists would find the district court’s assessment of the denial of a constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, when a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claim, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. For the reasons stated above, the court concludes that petitioner is not entitled to federal habeas relief for any of his claims. Reasonable jurists would not find these conclusions unreasonable. Consequently, petitioner has failed to make a substantial showing of the denial of a constitutional right, and a certificate of appealability will not be issued. VI. CONCLUSION For the foregoing reasons, petitioner’s application for habeas relief filed pursuant to 28 U.S.C. § 2254 will be denied. An appropriate order will be entered. ORDER For the reasons set forth in the memorandum opinion issued this date, IT IS HEREBY ORDERED that: 1. Petitioner Claude A. Jones’ application for a writ of habeas corpus pursuant to 28" }, { "docid": "1460755", "title": "", "text": "alone. Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir.1997); 28 U.S.C. § 2253(c)(3). A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 2569, 159 L.Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 124 S.Ct. at 2569; Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate that reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123" }, { "docid": "84029", "title": "", "text": "U.S. 274, 282, 124 S.Ct. 2562, 2569, 159 L.Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569; Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[WJhere a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604). Accord Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge on appeal this Court’s dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of" }, { "docid": "15137365", "title": "", "text": "unreasonable determination of the facts based on the evidence presented. Accordingly, the Court DENIES petitioner’s first ground for relief as meritless. D. Certificate of Appealability An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, et al., 105 F.3d 1063 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certificate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. This issue was central to petitioner’s trial and this Court’s resolution of the issue is central to this habeas proceeding. This claim not only is fact-intensive but also implicates numerous fundamental rights. That being so, the Court is more than satisfied that reasonable jurists could find its" }, { "docid": "14010033", "title": "", "text": "denied. II To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). At the COA stage, a court should “limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light" } ]

[ { "docid": "18594618", "title": "", "text": "which survives the filing of a bankruptcy petition by the debt- or. ITT argues that it can perfect its lien after termination of the automatic stay or abandonment of the property by proceeding to judgment in the Superior Court action. ITT cites the rule, recognized in Delaware, that a lien by domestic attachment, once it has been perfected by judgment, goes back and holds the property as of the date of the attachment. 2 Woolley on Delaware Practice § 1256. ITT then reasons that, although it cannot collect its debt as a personal liability of Savidge, it can still proceed after his discharge to try to obtain judgment in the Superior Court action and, if successful, enforce against the real estate its lien, originated by domestic attachment and now perfected by judgment and relating back to September 8, 1983, the date of the attachment. ITT relies on Section 546(b) of the Bankruptcy Code to permit perfection of its lien after Savidge’s filing for bankruptcy. We do not agree. Section 3501, the Domestic Attachment Statute, is intended to enable the Court to secure jurisdiction. Beneficial Consumer Discount Co. v. Church, Del.Super., 359 A.2d 185 (1976). We hold that this type of unperfected lien, created by ITT’s writ of domestic attachment in order to compel the appearance of the defendant and wholly dependent upon the subsequent recovery of a judgment on the attachment process, is not the type of “interest in property” which can be perfected under Section 546(b) after the debtor files for bankruptcy. ITT does not claim that its disputed claim would have survived bankruptcy if Savidge had been served personally. It contends, however, that because by chance Savidge could not be found by the Sheriff but had to be brought into the Superior Court action by a writ of domestic attachment, ITT should acquire the status of a secured creditor. ITT claims this status even though litigation would still be necessary after the filing of bankruptcy to establish whether or not Savidge was, in fact, liable to ITT and, if so, in what amount. The fact that ITT would" } ]

[ { "docid": "19173652", "title": "", "text": "101(58), 4 Collier on Bankruptcy, ¶ 547.03[1][A], and, for purposes of § 547, a transfer is deemed to have been made when a judicial lien attaches to the debtor’s property under state law. Id.; In re Foluke, 38 B.R. 298, 300 (Bankr.N.D.Ill.1984). Thus, as in the case of the trustee’s § 544(a)(1) claim, the Court must look to state law to determine whether the Sharp group, by means of the citation proceeding, obtained a lien that attached to the debtor’s property within 90 days of bankruptcy so as to be avoidable under § 547. The property here at issue is the debtor’s share of oil proceeds from leases in which he has an interest. Under Illinois law, oil in the ground constitutes land or real estate. Upon its extraction, however, it is classified as personal property and its sale and disposition is governed by personal property law. See In re Fullop, 125 B.R. 536, 539 (Bankr.S.D.Ill.1990), aff'd as modified, 6 F.3d 422 (7th Cir.1993). In this case, the debtor’s oil has been, and continues to be, sold upon extraction to Farm Bureau, giving the debtor a right to payment or an “account,” which constitutes intangible personal property. See generally id. at 540-41 (extracted oil and accounts arising from sale of the oil constitute personal property subject to provisions of Uniform Commercial Code). It is this property which the Sharp group sought to attach through the citation served on Farm Bureau, who holds the oil proceeds pending payment to the debtor. There has been considerable confusion under Illinois case law concerning the requirements for creation of a judicial lien on personal property, including intangible personal property. See Francis E. Stepnowski, Less Than Perfected: Uncertainty in Illinois Judgment Lien Law, 13 N.Ill.U.L.Rev. 33 (1992) [hereinafter Less Than Perfected ]. The most fundamental method of enforcing a judgment is through execution and levy, whereby the creditor delivers a certified copy of the judgment (formerly a writ of execution) on the sheriff, who then levies on or seizes sufficient property of the debtor to satisfy the judgment amount. See 735 ILCS 5/12-111, 5/12-158. While" }, { "docid": "5311192", "title": "", "text": "ninety-day preference period, and hence was not avoidable. The change from the TPO lien to the attachment lien was not a new transfer within the meaning of section 547, so could not have been a preference; therefore, the lien may not be avoided. II May the Trustee avoid Cannon’s lien under 11 U.S.C. § 544? Under section 544, the Trustee stands in the shoes of a hypothetical lien creditor whose lien arose on the day the bankruptcy petition was filed. With this “strong-arm” power, she may avoid and recapture for the debtor’s estate any junior claim. Thus, the security interest of a creditor who has not perfected is defeated by the Trustee’s section 544 power and relegated to the status of an unsecured debt. A secured creditor who has timely perfected retains its interest in the bankrupt’s estate, and may look first to any collateral in which its security interest has priority. Section 544 preserves within the bankruptcy proceeding the equities among creditors that existed outside bankruptcy. It freezes the relative positions of secured and unsecured creditors at the time of the filing, reducing the incentive to file a strategic bankruptcy petition, and awarding the diligent creditor. See generally T. Jackson, Logic and Limits of Bankruptcy, 68-88. The Bankruptcy Code looks to state law to determine the effect and validity of such liens. McKenzie v. Irving Trust, 323 U.S. 366, 370, 65 S.Ct. 405, 408, 89 L.Ed. 305 (1945). No judicial lien creditor whose lien arose after December 7 can defeat Cannon’s lien, assuming that Cannon will succeed in reducing its underlying claim to judgment. That Cannon will succeed seems a likely assumption because Cannon had to present a strong showing of success on the merits to obtain a writ of attachment. However, Cannon’s attachment lien has not yet been, and might not be, reduced to judgment in its state court action. It is this uncertainty upon which the bankruptcy court relied in holding that the Trustee could defeat Cannon’s lien. It cited Arcturus Mfg. Co. v. Superior Court, 223 Cal.App.2d 187, 35 Cal.Rptr. 502 (1964), and Puissegur v. Yarbrough," }, { "docid": "18669140", "title": "", "text": "debtor at the time of the commencement of the case, and obtains, at such time and with respect to such credit, an execution against the debtor that is returned unsatisfied at such time, whether or not such a creditor exists. 11 U.S.C. § 544(a)(1) & (2). The ultimate effect of this section is to give the trustee a perfected lien upon all property of the estate as of the date of the petition. Thus, in combination with the automatic stay, Section 544 preserves within the bankruptcy proceeding the equities among creditors that existed outside bankruptcy. It freezes the relative positions of secured and unsecured creditors at the time of the filing, reducing the incentive to file a strategic bankruptcy petition, and awarding the diligent creditor. In re Wind Power Systems, Inc., 841 F.2d 288, 293 (9th Cir.1988) (citing Thomas H. Jackson, The Logic and Limit of Bankruptcy Law 68-88). Since the trustee obtains this status only as of the date of the petition, its rights may be subject or subordinate to competing interests in the estate’s property which arose prior to the date of the petition. Through § 544(a), the Bankruptcy Code invests the trustee with the status of a hypothetical lien creditor. It does not, however, identify the rights and powers of such a creditor. Instead, state law determines the significance of the status which has been conferred upon the trustee. See Matter of Chaseley’s Foods, Inc., 726 F.2d 303, 307 (7th Cir.1983). “Sections 544(a)(1) & (2) follow state law ... in giving the trustee no greater rights than the judgment creditor would have.” Belisle v. Plunkett, 877 F.2d 512, 515 (7th Cir.1989) (emphasis original). If the rights of a competing claimant to property of the estate “would trump those of a judgment creditor” they will defeat the claim of the trustee, who exercises its rights for the benefit of all. Id. Consequently, if the rights Don Jacobs obtained through the pre-petition proceedings supplemental and garnishment would defeat the rights of a subsequent judgment creditor, they have priority over the rights of the trustee in the proceeds recoverable on" }, { "docid": "4558496", "title": "", "text": "in estate property to the extent that, as against the creditor’s lien, the trustee’s hypothetical judicial lien would be superior in right. The party moving for the applicability of § 544(a)(1), here the Trustee, carries the burden of proof to show the applicability of the provision. In re Brouillette, 389 B.R. 214, 218 (Bankr.D.Kan.2008). For his burden, the Trustee set forth in his Complaint that the liens held by the Bank in the Debtors’ vehicles are subject to avoidance under § 544(a)(1) based on this deficiency: The liens were not properly perfected. Perfection is the process by which a party, who seeks to claim an interest in a debtor’s property, takes the necessary steps to protect its interest against competing claims in the same collateral, usually by providing notice of the interest. BlacK’s Law DictionaRY 1137 (9th ed. 1990). Perfection is to be contrasted with a lien’s creation, sometimes called attachment, which concerns whether the lien is enforceable between the respective parties. Drown v. Perfect (In re Giaimo), 440 B.R. 761, 766-68 (6th Cir. BAP 2010). Under the Uniform Commercial Code, a party obtaining a judicial lien on a debtor’s property will normally take priority over an unperfected security interest. UCC 9-317. For purposes of § 544(a)(1), this means that a creditor holding an un-perfected, or improperly perfected lien against a debtor when a bankruptcy case is filed may be subject to having their lien avoided by the trustee. Malloy v. Wilserv Credit Union (In re Harper), 516 F.3d 1180, 1182 (10th Cir.2008); see also Simon v. Chase Manhattan Bank (In re Zaptocky), 250 F.3d 1020, 1023 (6th Cir.2001). (section 544(a)(1) is commonly employed to void unperfected liens and security interests in personal property). The policy rationale of § 544(a)(1) is to maximize the estate assets available to a debtor’s general body of unsecured creditors by preventing the creation and enforcement of secret or undisclosed liens. Consol. Partners Inv. Co. v. Lake, 152 B.R. 485, 490 (Bankr.N.D.Ohio 1993). Whether a lien is properly perfected and whether a judicial lien takes priority over an unperfected lien is a determination made according" }, { "docid": "18733751", "title": "", "text": "or the property is sold under a writ of execution issued on the judgment, or until the judgment is satisfied, or the attachment discharged or vacated in some manner provided by law. Katz v. Obenchain, 48 Or. 352, 85 P. 617, 619 (1906). The drafters of the Bankruptcy Code were concerned with the problem of liens created by state law frustrating the policy of equality of distribution among unsecured creditors. See 4 COLLIER ON BANKRUPTCY ¶ 545.01[3], at 545-6 through 545-7 (15th ed. 1985). Section 545 of the Code specifies six alternative grounds upon which the trustee can avoid the fixing of a statutory lien. It must, of course, be recognized that Section 545 deals only with statutory liens and does not include judicial liens or security interests. A “judicial lien” is defined in Section 101(30) (formerly Section 101(27)) as a “lien obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding.” The term encompasses a lien established by attachment or garnishment. See In re Rand Mining Co., 71 F.Supp. 724 (S.D.Cal.1947); In re Minton Group, Inc., 28 B.R. 774 (Bkrtcy.S.D.N.Y.1983). A judicial lien, while not subject to avoidance under Section 545, may be assailed as a preference. See 4 COLLIER ON BANKRUPTCY, supra, 11 547.12[1], at 547-48. In the present case, however, the writs were issued and the debtor’s property levied upon outside of the preference period. Where a writ of attachment is issued and the debtor’s property is levied upon prior to the 90-day preference period, a lien is created in favor of the creditor which cannot be avoided by the trustee. McIntosh v. Bank of Salt Lake, 24 Utah 2d 245, 469 P.2d 1016, 1018 (1970). See Walutes v. Baltimore Rigging Company, 390 F.2d 350, 352 (4th Cir.1968); Bass v. Stodd, 357 F.2d 458, 465-66 (9th Cir.1966); In re TMIC Industrial Cleaning Co., 19 B.R. 397, 400 (Bkrtcy.W.D.Mo.1982). A judgment perfecting the lien may be rendered within the preference period or even after the filing of the bankruptcy petition. Metcalf Brothers & Co. v. Barker, 187 U.S. 165, 23 S.Ct. 67, 47 L.Ed. 122" }, { "docid": "12434561", "title": "", "text": "in allowing post-petition interest as part of the FDIC’s secured claim, and in refusing to surcharge the FDIC for interim attorney fees incurred by Jenson as debtor-in-possession. A. Allowance as a Secured Claim The bankruptcy court held that the FDIC’s writ of attachment was not dissolved by the filing of Jenson’s bankruptcy petition and that it properly was treated as a perfected lien and allowed as a secured claim. Jenson argues that the bankruptcy court erred in allowing a prejudgment attachment lien as a secured claim. He contends that a writ of attachment, unperfected by judgment before the filing of a bankruptcy petition, is insufficient to give the attaching creditor secured status. Jenson’s argument is foreclosed by In re Wind Power Systems, Inc., 841 F.2d 288 (9th Cir.1988). In that case, the holder of a prejudgment writ of attachment granted before the start of the 90-day preference period levied on the debtor’s property within 90 days of the filing of the debtor’s Chapter 11 petition. The debtor attempted to avoid the lien as a preferential transfer under 11 U.S.C. § 547. We held that because under California law the creation and priority of an attachment lien relate back to the date on which the writ was issued, the lien arose outside the 90-day preference period and was thus not avoidable as a preference. Id. at 291-92. We also indicated that we would permit the attachment creditor to proceed to judgment in the underlying action and held that if the creditor prevailed, its perfection of the lien by judgment would relate back to the issuance of the writ of attachment and thereby would be immune from the trustee’s avoiding powers under the “strong-arm” clause of 11 U.S.C. § 544. Id. at 293. Nevada law, like California law, provides for relation back of perfection of a prejudg ment attachment lien. See Petri v. Sheriff of Washoe County, 87 Nev. 549, 491 P.2d 43 (Nev.1971).- Thus, Wind Power controls. The district court, properly allowed the FDIC’s attachment lien as a secured claim. B. The Preference Claim Section 547(b) of the Bankruptcy Code permits" }, { "docid": "5311193", "title": "", "text": "unsecured creditors at the time of the filing, reducing the incentive to file a strategic bankruptcy petition, and awarding the diligent creditor. See generally T. Jackson, Logic and Limits of Bankruptcy, 68-88. The Bankruptcy Code looks to state law to determine the effect and validity of such liens. McKenzie v. Irving Trust, 323 U.S. 366, 370, 65 S.Ct. 405, 408, 89 L.Ed. 305 (1945). No judicial lien creditor whose lien arose after December 7 can defeat Cannon’s lien, assuming that Cannon will succeed in reducing its underlying claim to judgment. That Cannon will succeed seems a likely assumption because Cannon had to present a strong showing of success on the merits to obtain a writ of attachment. However, Cannon’s attachment lien has not yet been, and might not be, reduced to judgment in its state court action. It is this uncertainty upon which the bankruptcy court relied in holding that the Trustee could defeat Cannon’s lien. It cited Arcturus Mfg. Co. v. Superior Court, 223 Cal.App.2d 187, 35 Cal.Rptr. 502 (1964), and Puissegur v. Yarbrough, 29 Cal.2d 409, 175 P.2d 830 (1946), in support. However, neither was a bankruptcy case; both held only that a creditor had no right to proceed against property after his writ had been allowed to lapse without perfection. In re Savidge, 49 B.R. 429 (Bankr.D.Dela.1985), aff'd, 57 B.R. 389 (D.Dela.1986), also cited by the lower court, held that a writ of domestic attachment to secure jurisdiction, unperfected by judgment before the filing of a petition, is insufficient to give the attaching creditor secured status. Id. at 391. However, the Savidge opinion cites no case law in support of its conclusion, and the logic of its application by the bankruptcy court would also overturn a strong line of cases in this court allowing prepre-ference lien creditors to proceed to judgment. See, e.g., In re LaFortune, 652 F.2d 842 (9th Cir.1981); Bass, 357 F.2d 458; Metcalf, 187 U.S. 165, 23 S.Ct. 67. The bankruptcy court incorrectly relied upon Savidge. Although its holding does not directly conflict with superior authority, its application to these facts runs counter to" }, { "docid": "18577257", "title": "", "text": "improper method of valuing property for purposes of the section 64a(4) limitation to “the value of the interest of the bankrupt estate therein as determined by the court ” (emphasis added). We think that the sale price is an accurate and acceptable means of establishing value. See 4B Collier on Bankruptcy ¶ 70.98[10] at 1164 (14th ed. 1978). The district court’s order is REVERSED, and the bankruptcy court’s judgment is AFFIRMED. . Section 67c(l)(B) provides that: (c)(1) The following liens shall be invalid against the trustee: (B) every statutory lien which is not perfected or enforceable at the date of bankruptcy against one acquiring the rights of a bona fide purchaser from the debtor on that date, whether or not such purchaser exists: Provided, That where a statutory lien is not invalid at the date of bankruptcy against the trustee under subdivision (c) of section 110 of this title and is required by applicable lien law to be perfected in order to be valid against a subsequent bona fide purchaser, such a lien may nevertheless be valid under this subdivision if perfected within the time permitted by and in accordance with the requirement of such law: And provided further, That if applicable lien law requires a lien valid against the trustee under section 110(c) of this title to be perfected by the seizure of property, it shall instead be perfected as permitted by this subdivision by filing notice thereof with the court .... Former 11 U.S.C. § 107(c)(1)(B) (1976). . See Franchise Tax Bd. v. Danning (In re Perry), 487 F.2d 84 (9th Cir. 1973), cert, denied, 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874 (1974). . In the California system, judgment liens are acquired by filing an abstract of judgment with any county recorder. This filing will result in the attachment and perfection of a lien against all real property owned by the debtor in that county. Cal.Civ.Proc.Code § 674 (West 1980). A judgment lien has no analogue that reaches personal property. . The county contends that Poly Indus., Inc. v. Mozley, 362 F.2d 453 (9th Cir.), cert," }, { "docid": "5311191", "title": "", "text": "(11th Cir.1983). Because we hold that the creation of the attachment lien related back to the grant of the TPO, we also hold that the transfer at issue — the fixing of the attachment lien —occurred at that time, and hence was not an avoidable preference. Because the lien created by the TPO was perfected outside the ninety-day preference period, and encumbered the property to no lesser extent than did the attachment lien, the perfection of the attachment lien gave Cannon no greater rights in the debtor’s estate. Cannon’s security interest in Wind Power’s assets is no greater under the attachment lien than it was under the TPO lien, so Wind Power’s assets are not diminished thereby. In re Hensley, 70 B.R. 237 (Bankr.D.Kans.1987), is instructive. In that case, a lien was sufficient to prevent a third party from obtaining a later senior interest although it was contingent upon a later entry of judgment. The transfer was therefore deemed to have occurred under the section 547 definition at the service of the writ, outside the ninety-day preference period, and hence was not avoidable. The change from the TPO lien to the attachment lien was not a new transfer within the meaning of section 547, so could not have been a preference; therefore, the lien may not be avoided. II May the Trustee avoid Cannon’s lien under 11 U.S.C. § 544? Under section 544, the Trustee stands in the shoes of a hypothetical lien creditor whose lien arose on the day the bankruptcy petition was filed. With this “strong-arm” power, she may avoid and recapture for the debtor’s estate any junior claim. Thus, the security interest of a creditor who has not perfected is defeated by the Trustee’s section 544 power and relegated to the status of an unsecured debt. A secured creditor who has timely perfected retains its interest in the bankrupt’s estate, and may look first to any collateral in which its security interest has priority. Section 544 preserves within the bankruptcy proceeding the equities among creditors that existed outside bankruptcy. It freezes the relative positions of secured and" }, { "docid": "6553829", "title": "", "text": "than perfection of interests in aircraft; the Supreme Court has held that state law continues to determine priorities of interests in aircraft. See Philko Aviation, Inc. v. Shacket, 462 U.S. 406, 413, 103 S.Ct. 2476, 2480, 76 L.Ed. 2d 678 (1983). Yet the Compass decision is not so limited. After noting that attachment is a necessary step in the perfection of a security interest, the court stated: \"As a judgment creditor can acquire no rights superior to those of its judgment debtor, [a] judgment lien could not attach [to] aircraft which had been sold by the judgment debtor * * *.” 806 F.2d at 799 (emphasis added). Thus, although the Compass court stated that it was resolving a priority dispute, its reasoning is directed toward determining whether a judgment lien creditor could perfect an interest in property in which the judgment debtor no longer had an interest. .It is not clear whether the bankruptcy court specifically considered this issue. The court seemed to treat the transfers of B-129, B-130, and B-138 as being identical to transfers of other planes, concluding as to all 16 aircraft at issue on appeal that \"[transfers concerning these aircraft were not preferential.” 56 B.R. at 381. . Because “property of the estate” includes \"all legal or equitable interests of the debtor in property * * *[,]”§ 541(a)(1), “property of the debt- or” as used in the definition of a voidable preference, see § 547(b), is for these purposes equivalent to “property of the estate.” See General Office Furniture Wholesalers, Inc. v. U.S. Furniture Indus., Inc. (In re General Office Furniture Wholesalers, Inc.), 42 B.R. 232, 235 (Bankr.E.D.Va.1984). . AGCO asserts that \"Bellanca always accounted for the payments in a separate account for monies belonging to AGCO\"; the trustee asserts that \"[t]he proceeds were deposited into Bellan-ca’s general checking account, where they mingled with Bellanca’s other funds.” The district court stated that Bellanca deposited the checks \"to its general account,” yet the bankruptcy court made no such finding. We note that in a bankruptcy proceeding, \"the district court may not make its own independent factual findings.”" }, { "docid": "12434563", "title": "", "text": "the trustee (or debtor-in-possession) to avoid certain pre-petition transfers of estate property that favor one creditor over others. Subject to certain exceptions, a “preference” is any transfer of an interest of the debtor in property (1) to or for the benefit of a creditor (2) for or on account of an antecedent debt (3) made within 90 days before the date of the filing of the bankruptcy petition (4) which allows the creditor to receive more than it would in a Chapter 7 liquidation. See 11 U.S.C. § 547(b), (f). Jenson contends that bankruptcy court erred in ruling that the FDIC’s unperfected attachment lien was not a voidable prefer- ■ ence. The district court held that the transfer created by the writ of attachment. related back to the date of issuance, July 2, 1987, which was outside the 90-day preference period. We find no error in the dis-. trict court’s ruling. In Wind Power we held that “[f]or purposes of section 547, the time of transfer relates back as allowed by state law.” 841 F.2d at 291 (citing Bass v. Stodd, 357 F.2d 458, 463 (9th Cir.1966)). Nevada statutory law provides that a transfer of real property is made “when the asset is so far perfected that a good faith purchaser of the asset from the debtor against whom applicable law permits the transfer to be perfected ' cannot acquire an interest in the asset that is superior to the interest of the transferee.” NRS § 112.200. Once Jen-son’s property was attached, no subsequent bona fide purchaser could acquire a superi- or interest in the property. As discussed above, when the FDIC’s attachment lien was perfected by judgment its perfection related back to July 2, 1987. See Wind Power, 841 F.2d at 293. C. Post-petition Interest The bankruptcy court held that the FDIC’s secured claim included post-petition interest earned on the funds held by the U.S. Marshall pursuant to the prejudgment writ of attachment. The court held that the interest represented post-petition appreciation of the collateral and not post-petition interest on the FDIC’s claim. The district court agreed, and so" }, { "docid": "18577258", "title": "", "text": "be valid under this subdivision if perfected within the time permitted by and in accordance with the requirement of such law: And provided further, That if applicable lien law requires a lien valid against the trustee under section 110(c) of this title to be perfected by the seizure of property, it shall instead be perfected as permitted by this subdivision by filing notice thereof with the court .... Former 11 U.S.C. § 107(c)(1)(B) (1976). . See Franchise Tax Bd. v. Danning (In re Perry), 487 F.2d 84 (9th Cir. 1973), cert, denied, 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874 (1974). . In the California system, judgment liens are acquired by filing an abstract of judgment with any county recorder. This filing will result in the attachment and perfection of a lien against all real property owned by the debtor in that county. Cal.Civ.Proc.Code § 674 (West 1980). A judgment lien has no analogue that reaches personal property. . The county contends that Poly Indus., Inc. v. Mozley, 362 F.2d 453 (9th Cir.), cert, denied, 385 U.S. 958, 87 S.Ct. 393, 17 L.Ed.2d 304 (1966), supports the proposition that it can perfect its tax lien after the date of filing of bankruptcy. The issue in Mozley was whether a tax debt was limited by section 64a(4) of the Bankruptcy Act, where the debt was secured by a lien that arose after the commencement of bankruptcy proceedings. The court held that the lien could be perfected after proceedings started, and that the priority limitation contained in section 64a(4) was inapplicable where the debt was secured by a tax lien. The case is not authority for the proposition that Humboldt County may perfect its lien after bankruptcy is filed, because it arose prior to the 1966 Amendments which created section 67c(l)(B). That section expressly provides for the perfection of such liens after bankruptcy." }, { "docid": "1074213", "title": "", "text": "lienors claimed that under Kentucky law their liens related back and took effect pri- or to the perfection of the attachment lien. Examining Kentucky law, the Sixth Circuit found that in fact the mechanics’ and mate-rialmen’s liens had priority over the attachment lien. The court refused preservation of the avoided attachment lien because the bankruptcy estate could not thereby acquire superior rights in the property. Under the Code, § 551 operates automatically to preserve an avoided lien. A lien so preserved, however, may be of no practical value to the trustee if senior lien-ors remain with liens exceeding the value of the property. This is true because the Code does not change the rule established under prior law that preservation of a lien cannot enhance the priority of the avoided lien vis-a-vis competing security interests in the same property. The courts have long recognized that the trustee who avoids and then preserves the lien of a creditor cannot acquire greater rights in the property than those to which he has succeeded. See 4 L. King, Collier on Bankruptcy ¶ 67.16 at 184 (14th ed. 1978). As Judge Flowers stated in Truman v. United States (In re Tri-Sonic, Inc.), 1 B.R. 138,142 (Bkrtcy.N.D.Tex.1979), “preservation is pointless when the lien sought to be preserved is inferior because preservation does not enhance its status.” Section-551 cannot be utilized by the trustee to cure defective liens to the detriment of other properly perfected secured creditors. The court must refer to state law to determine the relative priorities of the competing liens. Egyptian Supply Co. v. Boyd, 117 F.2d at 611. The parties agree that the court must look to the law of Tennessee to determine the order of priorities in the instant case. The Uniform Commercial Code as adopted in the State of Tennessee mandates the conclusion that the bank has the superior lien to that of Tennessee Machinery and therefore' the trustee. It is stipulated that the bank acquired and perfected a security interest in the debtor’s after acquired property on September 21, 1981. Thereafter, the debtor acquired rights in a forklift and" }, { "docid": "12434562", "title": "", "text": "transfer under 11 U.S.C. § 547. We held that because under California law the creation and priority of an attachment lien relate back to the date on which the writ was issued, the lien arose outside the 90-day preference period and was thus not avoidable as a preference. Id. at 291-92. We also indicated that we would permit the attachment creditor to proceed to judgment in the underlying action and held that if the creditor prevailed, its perfection of the lien by judgment would relate back to the issuance of the writ of attachment and thereby would be immune from the trustee’s avoiding powers under the “strong-arm” clause of 11 U.S.C. § 544. Id. at 293. Nevada law, like California law, provides for relation back of perfection of a prejudg ment attachment lien. See Petri v. Sheriff of Washoe County, 87 Nev. 549, 491 P.2d 43 (Nev.1971).- Thus, Wind Power controls. The district court, properly allowed the FDIC’s attachment lien as a secured claim. B. The Preference Claim Section 547(b) of the Bankruptcy Code permits the trustee (or debtor-in-possession) to avoid certain pre-petition transfers of estate property that favor one creditor over others. Subject to certain exceptions, a “preference” is any transfer of an interest of the debtor in property (1) to or for the benefit of a creditor (2) for or on account of an antecedent debt (3) made within 90 days before the date of the filing of the bankruptcy petition (4) which allows the creditor to receive more than it would in a Chapter 7 liquidation. See 11 U.S.C. § 547(b), (f). Jenson contends that bankruptcy court erred in ruling that the FDIC’s unperfected attachment lien was not a voidable prefer- ■ ence. The district court held that the transfer created by the writ of attachment. related back to the date of issuance, July 2, 1987, which was outside the 90-day preference period. We find no error in the dis-. trict court’s ruling. In Wind Power we held that “[f]or purposes of section 547, the time of transfer relates back as allowed by state law.” 841 F.2d" }, { "docid": "5311194", "title": "", "text": "29 Cal.2d 409, 175 P.2d 830 (1946), in support. However, neither was a bankruptcy case; both held only that a creditor had no right to proceed against property after his writ had been allowed to lapse without perfection. In re Savidge, 49 B.R. 429 (Bankr.D.Dela.1985), aff'd, 57 B.R. 389 (D.Dela.1986), also cited by the lower court, held that a writ of domestic attachment to secure jurisdiction, unperfected by judgment before the filing of a petition, is insufficient to give the attaching creditor secured status. Id. at 391. However, the Savidge opinion cites no case law in support of its conclusion, and the logic of its application by the bankruptcy court would also overturn a strong line of cases in this court allowing prepre-ference lien creditors to proceed to judgment. See, e.g., In re LaFortune, 652 F.2d 842 (9th Cir.1981); Bass, 357 F.2d 458; Metcalf, 187 U.S. 165, 23 S.Ct. 67. The bankruptcy court incorrectly relied upon Savidge. Although its holding does not directly conflict with superior authority, its application to these facts runs counter to a long line of cases upholding liens in the face of the trustee’s section 544 powers and allowing lienholders to proceed to judgment after bankruptcy. As a matter of policy, the Savidge result is undesirable. Had the Savidge creditor been allowed to proceed to judgment, it would have taken priority over the trustee’s judicial lien. The bankruptcy court’s result provides an incentive for strategic bankruptcy filings which distort rights among creditors from what they would be outside bankruptcy proceedings. The Savidge opinion also stressed that the Delaware writ had been secured only to compel the defendant’s appearance, and had been issued in an ex parte proceeding. Because California law required a significantly stronger showing on the merits by Cannon, and allowed Wind Power the opportunity to contest it before the writ was issued, we do not find the reasoning of the Savidge court applicable here. Ill Is Cannon’s attachment lien extinguished by operation of state law? Cal.Civ.Proc.Code § 493.030 terminates a lien of a TPO or attachment if it was created within ninety days prior" }, { "docid": "12434560", "title": "", "text": "and breach of contract claims against Alliance. See 12 U.S.C. § 1821(d)(5)-(7). Jenson’s attack on the writ of attachment challenges action taken by the FSLIC after it became receiver for Alliance, and thus it is not a claim against a depository institution within the scope of the FDIC’s administrative review. See 12 U.S.C. § 1821(d)(6)(A)(i). The bankruptcy court’s July 1989 judgment in the deficiency action was a final, appealable order. The district court’s earlier order refusing to vacate the writ of attachment merged into this final judgment and was subject to review on an appeal from that judgment. Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 468 (9th Cir.1989). Jenson has thus had a full and fair opportunity to litigate the attachment issue, and he is precluded from taking another bite at the apple in the instant appeal. III. BANKRUPTCY ISSUES Jenson ' contends that the bankruptcy court erred in refusing to avoid the FDIC’s attachment as a preferential transfer, in allowing the attachment lien as a secured claim and permitting post-petition perfection, in allowing post-petition interest as part of the FDIC’s secured claim, and in refusing to surcharge the FDIC for interim attorney fees incurred by Jenson as debtor-in-possession. A. Allowance as a Secured Claim The bankruptcy court held that the FDIC’s writ of attachment was not dissolved by the filing of Jenson’s bankruptcy petition and that it properly was treated as a perfected lien and allowed as a secured claim. Jenson argues that the bankruptcy court erred in allowing a prejudgment attachment lien as a secured claim. He contends that a writ of attachment, unperfected by judgment before the filing of a bankruptcy petition, is insufficient to give the attaching creditor secured status. Jenson’s argument is foreclosed by In re Wind Power Systems, Inc., 841 F.2d 288 (9th Cir.1988). In that case, the holder of a prejudgment writ of attachment granted before the start of the 90-day preference period levied on the debtor’s property within 90 days of the filing of the debtor’s Chapter 11 petition. The debtor attempted to avoid the lien as a preferential" }, { "docid": "1201617", "title": "", "text": "provides that the powers of the trustee under § 544 are subject to any generally applicable law that permits perfection of an interest in property to relate back and be effective against an entity that acquires rights in the property before the date of such perfection. In those states which provide that an attorney’s charging lien attaches to a judgment, verdict or order and that the effective date of the lien relates back to the commencement of the attorney’s services, § 546(b) will protect the attorney’s lien from being invalidated by the trustee’s status as a hypothetical lien creditor as of the date of the filing of the petition. See, In re PDQ Copy Center, Inc., 27 B.R. 123 (Bkrtcy.S.D.N.Y.1983) (applying New York’s attorney’s lien statute); In the Matter of TLC of Lake Wales, Inc., supra, (applying Florida common law). As noted previously, although the judgment was obtained prior to the filing of the bankruptcy petition, the lien did not attach to the fund until after the conversion of the case to a Chapter 7. The general rule is that an attorney’s charging lien relates back to and is effective from the time the attorney commences his services. 7 Am.Jur.2d Attorneys at Law § 332 (1980); 2 S. Speiser, supra, § 16:21. The principle of relation back was applied in Hanna Paint Manufacturing Co. v. Rodey, Dickason, Sloan, Akin & Robb, 298 F.2d 371 (10th Cir.1962) to allow an attorney’s lien to defeat a creditor to whom a partial assignment of the judgment was made during the appeal of the judgment. The court first looked to New Mexico law to determine if an attorney’s charging lien was valid, but relied on general legal principles in stating that: The lien of an attorney for services rendered in an action relates back to, and takes effect from, the time of the commencement of the services, when it attaches to a judgment, it is superior to the claim of a creditor in whose favor execution has been levied, or to a subsequent attachment, garnishment, or trustee process, or other liens on the money" }, { "docid": "5311190", "title": "", "text": "as these, if creation does not relate back, then the lien creditor loses its priority as well. We therefore hold that, as a matter of California law, the creation of Cannon’s attachment lien dates from the time its TPO was granted. Because the lien was created outside the ninety-day preference period, the Trustee may not avoid it under section 547. B The renewal of a lien or security interest is not a new transfer within the meaning of section 547 if it merely continues an existing interest; it does not diminish the collection of assets to be distributed among the general creditors. In Re Cloyd, 23 B.R. 51 (Bankr.E.D.Tenn.1982). A “transfer” within the meaning of section 547 “occurs when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interests of the transferee.” 11 U.S.C. § 547(e)(1)(B), (2)(B). An exchange that does not take value away from the debtor’s estate cannot be a transfer within the reach of section 547. Nicholson v. First Investment Co., 705 F.2d 410, 413 (11th Cir.1983). Because we hold that the creation of the attachment lien related back to the grant of the TPO, we also hold that the transfer at issue — the fixing of the attachment lien —occurred at that time, and hence was not an avoidable preference. Because the lien created by the TPO was perfected outside the ninety-day preference period, and encumbered the property to no lesser extent than did the attachment lien, the perfection of the attachment lien gave Cannon no greater rights in the debtor’s estate. Cannon’s security interest in Wind Power’s assets is no greater under the attachment lien than it was under the TPO lien, so Wind Power’s assets are not diminished thereby. In re Hensley, 70 B.R. 237 (Bankr.D.Kans.1987), is instructive. In that case, a lien was sufficient to prevent a third party from obtaining a later senior interest although it was contingent upon a later entry of judgment. The transfer was therefore deemed to have occurred under the section 547 definition at the service of the writ, outside the" }, { "docid": "4558495", "title": "", "text": "Trustee’s Complaint relies on 11 U.S.C. § 544(a)(1). 11 U.S.C. § 544(a)(1) Section 544(a)(1) of the Bankruptcy Code, otherwise known as the strong-arm clause, provides: (а) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by— (1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a judicial lien, whether or not such a creditor exists[.] The substance of § 544(a)(1) is to confer upon a bankruptcy trustee, at the commencement of a bankruptcy case, the status of a hypothetical judicial lien holder, and then to allow the trustee to avoid any liens claimed by a creditor in estate property to the extent that, as against the creditor’s lien, the trustee’s hypothetical judicial lien would be superior in right. The party moving for the applicability of § 544(a)(1), here the Trustee, carries the burden of proof to show the applicability of the provision. In re Brouillette, 389 B.R. 214, 218 (Bankr.D.Kan.2008). For his burden, the Trustee set forth in his Complaint that the liens held by the Bank in the Debtors’ vehicles are subject to avoidance under § 544(a)(1) based on this deficiency: The liens were not properly perfected. Perfection is the process by which a party, who seeks to claim an interest in a debtor’s property, takes the necessary steps to protect its interest against competing claims in the same collateral, usually by providing notice of the interest. BlacK’s Law DictionaRY 1137 (9th ed. 1990). Perfection is to be contrasted with a lien’s creation, sometimes called attachment, which concerns whether the lien is enforceable between the respective parties. Drown v. Perfect (In re Giaimo), 440 B.R. 761, 766-68 (6th Cir. BAP" }, { "docid": "18733759", "title": "", "text": "of this case and the applica ble state law, the Court would have granted the creditor’s motion for relief and ordered termination of the stay in any event. CONCLUSION Rules 64A, 64C, and 64D of the Utah Rules of Civil Procedure were intended to create a method by which an unsecured creditor, under limited circumstances. and by way of the prejudgment writs issued by the state court, could obtain a valid lien in the attached property of a defendant to the lawsuit in which the writs were issued. A lien thus obtained is superior to the interest of the bankruptcy trustee. Whether or not judgment was actually rendered by the state court prior to entry of the order for relief does not affect the nature of the creditor’s lien acquired pursuant to the writs of attachment. Upon entry of judgment in favor of the plaintiff, the perfected lien relates back to the levy of attachment. The judgment only determines the value of the creditor’s interest. In this case, the state court’s summary judgment in the sum $130,607.27 exceeds the value of the collateral, which is less than $75,000. For these reasons, Western States Petroleum, Inc. is entitled to relief from the automatic stay with respect to the property subject to the state court writs and shall have a lien against the proceeds of the sale by the trustee of any such property, subject, of course, to the claims of the holders of any superior liens. . The Court concludes that the affidavits of Martin V. Gravis, which attempt to impeach the validity of the writs, constitute inadmissible hearsay. Consequently, there is no evidence before this Court of any defect in the prejudgment writs. There is no evidence that the state court found any defects in the prejudgment writs nor in the process that led to the issuance of those writs. Therefore, this Court concludes that the writs were in every respect valid. . The difference between statutory liens and judicial liens is explained in the legislative history, as follows: The definition [of statutory liens] excludes judicial liens and security interests," } ]

[ { "docid": "22325620", "title": "", "text": "States v. Ofchinick, 877 F.2d 251 (3d Cir.1989) and United States v. Medeiros, 884 F.2d 75, 80 (3d Cir.1989), can be read to imply that we may review the merits of a discretionary refusal of a district court to depart downward from the sentencing guidelines. However, no appealability question appears to have been raised in these cases. Under such circumstances, Chapter 8c of our Internal Operating Procedures (requiring adherence to our reported past precedent) does not require us to treat Ofchinick and Medeiros as binding in deciding on the government’s jurisdictional contention. See United States v. Troup, 821 F.2d 194 (3d Cir.1987) (lack of jurisdiction in the district court). We turn now to the jurisdictional issue. We understand defendant to be asserting that the district court abused its discretion in not reducing the sentence below the guideline range because of the atypical nature of the mitigating evidence. The district court, of course, had discretion to grant the request. However, in passing on the request it was required to evaluate the mitigating evidence. This it did and, nevertheless, refused to grant such relief. Surely in such circumstances we cannot review the correctness of such determination unless we first determine that we have jurisdiction to do so. We look in vain for language governing a defendant’s right to appeal the denial of relief under the foregoing circumstances. The portion of the statute providing for appeals by a defendant (18 U.S.C. § 3742) simply does not authorize such an appeal. Certainly § 3742(a)(2) (incorrect application of guidelines) does not apply in the present context. Otherwise, as the government suggests, a discretionary refusal to go below the guidelines would seem also to apply to situations in which a defendant challenged an enhanced departure. Such a result would render § 3742(a)(3) largely superfluous. Finally, although not relied on by the defendant, we do not believe that 18 U.S.C. § 3553(b), (permitting a deviation from the guidelines under certain circumstances), when read with § 3553(a) (factors to be considered in imposing a sentence) converts an unappealable exercise of discretion into an error of law that may" } ]

[ { "docid": "3345140", "title": "", "text": "OPINION OF THE COURT RENDELL, Circuit Judge. On November 18, 2002, Robin Dickerson pleaded guilty to importation of more than 100 grams of heroin in violation of 21 U.S.C. §§ 952(a) and 960(b)(2), a Class B felony with a five-year mandatory minimum sentence. After acceptance of responsibility and minor role adjustments were made, Dickerson’s sentencing range under the United States Sentencing Guidelines was determined to be 30 to 37 months. However, the District Court granted her motion for a downward departure based on aberrant behavior, under § 5K2.20 of the Sentencing Guidelines, and Dickerson was sentenced to five years of probation. The Government appeals the District Court’s judgment of sentence, urging that probation was an illegal sentence for Dickerson’s offense, and that the downward departure was erroneously granted. It also asserts that the de novo standard of review contained in the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub.L. No. 108-21, § 401, 117 Stat. 650, 670 (2003) (codified at 18 U.S.C. § 3742(e)(3)(B)) (“PROTECT Act”), applies, notwithstanding the fact that the instant departure was granted prior to the Act’s effective date. The District Court had jurisdiction based on 18 U.S.C. § 3231, and we have jurisdiction to consider the Government’s appeal of thé sentencing order pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b). For the- reasons that follow, we will vacate Dickerson’s sentence,' remand, and instruct the District Court to impose a sentence that falls within the applicable Guideline range. I. Factual & Procedural Background At the time of her offense, Robin Dickerson was twenty-four years old. She lived with her mother in Staten Island, New York, and she had recently been forced to leave college after defaulting on her student loans. Over the course of her adult life, Dickerson was consistently employed at various jobs, ranging from retail sales to electronic data entry. In late-2001 and early 2002, Dickerson was employed as a lab clerk at a hospital. Prior to February of 2002, Dickerson had never been arrested. In the summer of 2001, Dickerson was approached on" }, { "docid": "22703710", "title": "", "text": "Thistlewaite rendered Dallman responsible, for sentencing purposes, for the contraband carried by all. IV Dallman next asserts that the district court erred when it denied his motion for a downward departure based on aberrant behavior. Before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we held that, absent an allegation of legal error, a district court’s discretionary denial of a downward departure request was unreviewable. See United States v. Morales, 898 F.2d 99, 102 & n. 2 (9th Cir.1990). We based this determination on our conclusion that in enacting 18 U.S.C. § 3742(a), “Congress did not intend to allow for appellate review of discretion ary refusals to depart downward from the guidelines.” Id. at 102; see also United States v. Ruiz, 536 U.S. 622, 627, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (recognizing that 18 U.S.C. § 3742(a)(1) “does not authorize a defendant to appeal a sentence where the ground for appeal consists of a claim that the district court abused its discretion in refusing to depart”). However, Booker directs that we review the overall reasonableness of Dallman’s sentence and that our review be guided by the sentencing factors set forth in 18 U.S.C. § 3553(a). See 543 U.S. at 261, 125 S.Ct. 738; see also Gall, 128 S.Ct. at 594, 596-97 & n. 6. The district court’s determination that Dallman’s offense conduct was not aberrant behavior and did not merit a downward departure may be encompassed within the district court’s assessment of Dallman’s “history and characteristics” as set forth in 18 U.S.C. § 3553(a)(1). Thus Bookeds mandate that we review a sentence for reasonableness now permits us to consider what we previously could not — the district court’s decision not to impose a lesser sentence on Dallman due to his alleged aberrant behavior, among other relevant factors. Accordingly, we consider Dallman’s contention that the district court erred when it denied his motion for a downward departure based on aberrant behavior to the extent that the denial implicates the overall reasonableness of Dallman’s sentence. To comply with Booker*s mandate, a district court need not" }, { "docid": "1392648", "title": "", "text": "behavior.” We begin by outlining the standard of review. On April 30, 2003, section 401 of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”) became effective. See 18 U.S.C. 3742(e). The PROTECT Act, which applies to all appeals pending on and after its effective date, establishes a new regime for reviewing district court rulings granting departures from the Sentencing Guidelines. See United States v. Thurston, 358 F.3d 51, 70-72 (1st Cir.2004); United States v. Frazier, 340 F.3d 5, 14 (1st Cir.2003). We now review de novo whether the “sentence departs from the guideline range based on a factor that (i) does not advance the objectives set forth in [18 U.S.C.] § 3553(a)(2); or (ii) is not authorized under [18 U.S.C.] 3553(b); or (iii) is not justified by the facts of the case.” 18 U.S.C. § 3742(e); see United States v. Maldonado-Montalvo, 356 F.3d 65, 68-69 (1st Cir.2003). In cases where the departure is based on a factor that the Sentencing Commission has already approved, we proceed directly to consider whether the departure is “justified by the facts of the case.” Thurston, 358 F.3d at 76. In performing this analysis, we accept the dis trict court’s factual findings unless they are clearly erroneous. See 18 U.S.C. § 3742(e)(3)(C). The Guidelines, in their current form, recognize “aberrant behavior” as a legitimate ground for a downward departure. See U.S.S.G. § 5K2.20 (2003). However, as noted above at n. 6, the Guidelines effective in 1998 govern this case. See United States v. Dewire, 271 F.3d 333, 335 n. 2 (1st Cir.2001). These Guidelines did not take a position on whether “aberrant behavior” was an appropriate ground for a downward departure. See U.S.S.G. Ch. 1 Pt. A(4)(d) (1998) (“The Commission ... has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures.”). Because the 1998 Guidelines are silent on whether “aberrant behavior” is a permissible departure factor, our first task is to determine de novo whether this factor conflicts with the objectives set forth in 18 U.S.C." }, { "docid": "3345187", "title": "", "text": "nine opinions of other courts listed above. . Of course, we will only engage in this review of the extent of a departure in cases where, under the provisions of 18 U.S.C. § 3742(a) and (b), we have jurisdiction to hear such a challenge in the first instance. Here, our jurisdiction to engage in a review of both the propriety and the extent of Dickerson's downward departure is clearly based upon § 3742(b)(3), as the Government is appealing a sentence that falls below the relevant Guideline range. Thus, this case does not present us with the jurisdictional questions that would accompany a post-PROTECT Act appeal by a defendant of a district court's downward departure ruling. See, e.g., United States v. Linn, 362 F.3d 1261 (9th Cir.2004); cf. United States v. Parker, 902 F.2d 221 (3d Cir.1990); United States v. Denardi, 892 F.2d 269 (3d Cir.1989). . In her motion for a downward departure, Dickerson originally sought a departure based on aberrant behavior under § 5K2.20 or, more generally, based on a combination of factors under § 5K2.0. However, the \"combination of factors\" departure was not mentioned at sentencing by counsel or by the District Court. Here, Dickerson focuses almost exclusively on aberrant behavior as well. The other factors cited as potentially relevant under a \"combination of factors” theory — for example, Dickerson’s history of stable employment and her attempts to cooperate with authorities — are all factors that are subsumed within the aberrant behavior analysis. Thus, because Dickerson cites no additional factors beyond the aberrant behavior considerations, we would only place our stamp of approval on the District Court’s departure ruling if her case warrants an aberrant behavior departure. . Preliminarily, we note that a departure for aberrant behavior is prohibited in certain circumstances, which are described in § 5K2.20. None of those circumstances are applicable here. One of the situations listed, in which such a departure is barred, is where \"the offense of conviction is a serious drug trafficking offense.” Dickerson’s crime is not considered to be a \"serious drug trafficking offense,\" as defined in Application Note 1, because" }, { "docid": "3345165", "title": "", "text": "was justified, whether the extent of the departure was reasonable. B. Discussion We first examine the standards governing departures for aberrant behavior, as they are described in the Guideline provision itself and applied in our case law. As we have previously instructed, a sentencing court is required to engage in “two separate and independent inquiries” when considering a departure for aberrant behavior under § 5K2.20. United States v. Castano-Vasquez, 266 F.3d 228, 230 (3d Cir.2001). One inquiry asks “whether the defendant’s case is extraordinary,” and the other asks “whether his or her conduct constituted aberrant behavior.” Id. Under the relevant Guideline provisions, the sentencing court is free to address these inquiries in any order it chooses, as long as it considers both questions. Id. at 234. As we will explain below, we do not think that the District Court adequately addressed either of these requisite inquiries when it considered Dickerson’s downward departure motion. As is true whenever a court considers departing from a Guideline sentencing range, the District Court was required to find that Dickerson’s case was extraordinary, or “outside the heartland” of cases, before it departed downward. See Koon v. United States, 518 U.S. 81, 95-96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); Castano-Vasquez, 266 F.3d at 232. In Application Note 2 to § 2.20 of the Guidelines, the Sentencing Commission has listed five considerations that may be relevant to the extraordinariness inquiry in aberrant behavior cases. The listed factors include the defendant’s: “(A) mental and emotional conditions; (B) employment record; (C) record of prior good works; (D) motivation for committing the offense; and (E) efforts to mitigate the effects of the offense.” U.S.S.G. § 2.20, cmt. n.2. These factors are “helpful guideposts,” rather than mandatory considerations, see Castano-Vasquez, 266 F.3d at 235, but they are especially instructive as we set out to review departures like this one under the new de novo standard. The District Court did not make any finding, either explicitly or implicitly, as to the extraordinary nature of Dickerson’s case, as compared to other cases involving similar crimes. After reviewing the record before us, we" }, { "docid": "3345188", "title": "", "text": "§ 5K2.0. However, the \"combination of factors\" departure was not mentioned at sentencing by counsel or by the District Court. Here, Dickerson focuses almost exclusively on aberrant behavior as well. The other factors cited as potentially relevant under a \"combination of factors” theory — for example, Dickerson’s history of stable employment and her attempts to cooperate with authorities — are all factors that are subsumed within the aberrant behavior analysis. Thus, because Dickerson cites no additional factors beyond the aberrant behavior considerations, we would only place our stamp of approval on the District Court’s departure ruling if her case warrants an aberrant behavior departure. . Preliminarily, we note that a departure for aberrant behavior is prohibited in certain circumstances, which are described in § 5K2.20. None of those circumstances are applicable here. One of the situations listed, in which such a departure is barred, is where \"the offense of conviction is a serious drug trafficking offense.” Dickerson’s crime is not considered to be a \"serious drug trafficking offense,\" as defined in Application Note 1, because she is eligible for the safety valve exception to the mandatory minimum described in U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f). . Because we conclude that no downward departure is warranted, we need not engage in an examination of whether the extent of the departure granted here was unreasonable as the Government alternatively argues. However, we feel compelled to note that the District Court granted a staggering eleven-level departure without any explanation of why such a departure was called for, and thus reasonable, under these circumstances. The Court did note a desire to avoid any interruption to Dickerson's rehabilitation that would be caused by a sentence of imprisonment. However, under our precedent, sentencing courts are instructed to arrive at a reasonably sized departure by analogizing to other Guideline provisions, and we have remanded where district courts have failed to provide an adequate explanation. See United States v. Jacobs, 167 F.3d 792, 800 (3d Cir.1999) (citing United States v. Kikumura, 918 F.2d 1084, 1113 (3d Cir.1990)). But, given our determination that the departure was not" }, { "docid": "3345157", "title": "", "text": "in sentencing Dickerson to probation, and that the error seriously affected the integrity of the proceedings. Accordingly, on remand, the District Court will be instructed to impose a sentence of a term of imprisonment. III. The Downward Departure The second set of issues raised by the Government’s appeal involves challenges to the departure for aberrant behavior. We cannot remand for resentencing based on the plainly erroneous probationary sentence without reaching these issues, as we must also instruct the District Court whether, and to what extent, it can depart for aberrant behavior when it resentences Dickerson. In considering these issues, not only must we examine the merits of the departure and the extent to which the District Court reduced Dickerson’s sentence, but we must also preliminarily con sider whether and how the recently-enacted PROTECT. Act impacts our standard of review in cases where departures have been granted prior to the Act’s effective date. A. Standard of Review Before Congress enacted the PROTECT Act on April 30, 2003, we reviewed a sentencing court’s decision to depart from the applicable Guideline range for an abuse of discretion, granting substantial deference to the district courts. See Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. D’Amario, 350 F.3d 348, 356 (3d Cir.2003). The amendments contained in the PROTECT Act modified our standard of review, requiring that we consider de novo sentences that fall beyond the range specified by the Guidelines. Although numerous other courts of appeals have already examined the PROTECT Act’s impact on their standard of review, we have not yet spoken on the manner in which the new standard should be applied. The relevant statutory review' provision, as amended by the PROTECT Act, directs courts of appeals to review sentences that are “outside the applicable guideline range” de novo. Under this amended provision, we still review any findings of fact made by the District Court for clear error. Id. The only question before us, then, involves the effect of the de novo review provision, which applies to determinations made under § 3742(e)(3)(A) and" }, { "docid": "8050380", "title": "", "text": "a downward departure for aberrant behavior and for the other factors asserted was not warranted because “[e]ach of the factors [asserted as a ground for departure] was considered by the sentencing commission in formulating the guidelines.... [T]his ease does not rise to the level of [previous cases where downward departure was authorized].” At Alvarez’s sentencing hearing, Judge Conway again expressed his dissatisfaction with application of the Sentencing Guidelines in backpacker cases: There’s nobody on the Sentencing Commission that’s ever sentenced a backpacker; they don’t know anything about it.... It’s just an interesting phenomenon the way that these poor Mexican nationals are treated as against some of the others, so ... so I’ll let them take me up to the circuit again and see what happens. If the circuit reverses me on this, when you get back, you can make [other mitigation] arguments ... if the newest way to handle these on aberrant behavior doesn’t cut the mustard. The court then found that Alvarez qualified for a downward departure for “a single act of aberrant behavior” under USSG § 5K2 .0. The court based its finding on a combination of four factors: (1) that Alvarez “has no prior history of transporting marijuana”; (2) that he “has no prior criminal history”; (3) that he has a limited education; and (4) that he “has held stable employment.” Based on these findings, the court reduced by six levels Alvarez’s offense level (from 19 to 13), which yielded a sentencing range of 12 to 18 months. The court sentenced him to 12 months and one day on each count, all terms to run concurrently. By the date of his sentencing, September 14, 1999, Alvarez had already been in custody for 241 days, so he had only 125 days (about four months) left to serve. The Government timely appealed the downward departure under 18 U.S.C. § 3742(b)(2). While the appeal was pending, Alvarez completed his sentence and was deported to Mexico. DISCUSSION A. Jurisdiction The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(b)(2). B. Mootness Despite" }, { "docid": "3345144", "title": "", "text": "This level took into account downward adjustments based on the “safety valve” provision of the Guidelines in § 5C1.2, and acceptance of responsibility pursuant to § 3E1.1. The District Court granted a further downward adjustment of two levels based on a finding that Dickerson played a minor role in the offense. Because this was Dickerson’s first offense, she had no criminal history points, and she was therefore assigned a criminal history category of I. Thus, the District Court determined that the appropriate sentencing range under the Guidelines was 30 to 37 months. At the sentencing hearing, the District Court entertained Dickerson’s motion for a downward departure based on aberrant behavior under § 5K2.20 of the Guidelines. Defense counsel argued that Dickerson’s case was extraordinary, based on the considerations listed in the commentary following the aberrant behavior policy statement. He urged that Dickerson’s poor performance on psychological tests measuring intelligence, along with her history of emotional problems including depression, placed her situation outside the heartland of drug courier cases. He contended that Dickerson was particularly depressed at the time of the offense, and that the brief duration of the offense did not allow her time to reflect on her actions. He also emphasized her lack of any prior arrests or convictions, her desire to complete college, and her steady employment history. In closing, he argued that a term of imprisonment would disrupt Dickerson’s ongoing rehabilitative efforts. Dickerson and her mother each briefly addressed the District Court during the hearing, describing Dickerson’s current employment and her relationship with her mother. The Government relied upon its written sentencing memorandum, in which it argued that Dickerson’s case was not extraordinary, that the requirements for an aberrant behavior departure were not met by the facts here, and that none of the sentencing objectives listed in 18 U.S.C. § 3553(a) would be furthered by a reduced sentence. The District Court ultimately granted Dickerson’s motion for a downward departure. The Court’s written , statement of reasons simply indicates that the departure was based- on § 5K2.20 of the Guidelines, permitting departures for aberrant behavior. The reasons for" }, { "docid": "3345162", "title": "", "text": "Act we should review for abuse of discretion here. Her primary argument is based on a flawed reading of 18 U.S.C. § 3742(e)(3)(B). Specifically, she urges that we need not conduct any inquiry under (B)(i) or (B)(ii) if the departure is based on a factor that is explicitly permitted by the Guidelines — for example, aberrant behavior. Therefore, she reasons, there is no de novo review in a case such as hers. However, upon closer examination of the language of § 3742(e)(3)(B), see supra note. 10, we observe that Dickerson’s argument, focused as it is on subsections (i) and (ii), ignores subsection (iii). The clear language of § 3742(e)(3)(B) includes three disjunctive subsections,, and, in order to uphold the downward departure in this case, we must determine that each of the three subsections of § 3742(e)(3)(B) are satisfied. Thus, we are required to examine de novo, under subsection (iii), whether the aberrant behavior departure was justified by the facts of Dickerson’s case. Dickerson’s reading of § 3742(e)(3)(B) is illogical and unsupported. Accordingly, her argument regarding our standard of review must fail. The provision of the PROTECT Act that is relevant here raises four distinct inquiries in which we, as a reviewing court, are to engage: first, did the district court provide an adequate written statement of reasons, as required by 18 U.S.C. § 8553(c), see 18 U.S.C. § 3742(e)(3)(A); second, does the sentence depart from the Guideline range based on a factor that advances the objectives set forth in 18 U.S.C. § 3553(a)(2), and is authorized under 18 U.S.C. § 3553(b), see 18 U.S.C. § 3742(e)(3)(B)(i), (ii); third, does the sentence depart from the Guideline range based on a factor that is justified by the facts of the case, see 18 U.S.C. § 3742(e)(3)(B)(iii); and fourth, if a departure is warranted, was the extent of the departure granted by the district court reasonable, see 18 U.S.C. § 3742(e)(3)(C). In examining the first three questions, we are to engage in de novo review. However, as the subsection of § 3742(e)(3) that mandates the fourth question is not impacted by the PROTECT" }, { "docid": "3345145", "title": "", "text": "at the time of the offense, and that the brief duration of the offense did not allow her time to reflect on her actions. He also emphasized her lack of any prior arrests or convictions, her desire to complete college, and her steady employment history. In closing, he argued that a term of imprisonment would disrupt Dickerson’s ongoing rehabilitative efforts. Dickerson and her mother each briefly addressed the District Court during the hearing, describing Dickerson’s current employment and her relationship with her mother. The Government relied upon its written sentencing memorandum, in which it argued that Dickerson’s case was not extraordinary, that the requirements for an aberrant behavior departure were not met by the facts here, and that none of the sentencing objectives listed in 18 U.S.C. § 3553(a) would be furthered by a reduced sentence. The District Court ultimately granted Dickerson’s motion for a downward departure. The Court’s written , statement of reasons simply indicates that the departure was based- on § 5K2.20 of the Guidelines, permitting departures for aberrant behavior. The reasons for the departure are explained somewhat by the District Court’s oral ruling at the sentencing hearing. Preliminarily, the Court acknowledged its obligation to impose a sentence that furthers the considerations enumerated in 18 U.S.C.. § 3553(a), including deterrence, rehabilitation, and the need for appropriate punishment. The Court went on to explain its major reasons for departing downward, namely, because Dickerson was exploited by those who directed the importation scheme, and because she had accomplished much in her life prior to the offense, as well as following her arrest. We include in the margin the relevant portion of the sentencing discussion, taken from the hearing transcript, as it is central to our discussion pf the propriety of the departure in question. The District Court went on to sentence Dickerson to five years of probation, a departure of eleven levels from the applicable Guideline range. According to the Court, such a sentence indicated that the crime was a serious one, but also would enable Dickerson to continue her efforts at rehabilitation. The Court specifically noted its belief that" }, { "docid": "3345169", "title": "", "text": "a departure. Accordingly, we think that consideration of the circumstances of this case, guided by the factors listed by the Sentencing Commission, do not reasonably lead to the conclusion that Dickerson’s case is extraordinary. We have found that aberrant behavior departures were not appropriate in cases involving ordinary facts and circumstances in situations that were comparable to this one. See, e.g., Castano-Vasquez, 266 F.3d at 230-31 (finding no showing of extraordinariness where the defendant in a heroin importation case was in his fifties, did volunteer work in his community, suffered from medical problems, and imported drugs only once to gain money to support his family after losing his ability to provide for them by farming). As the sentencing judge noted, “Dickerson fits the profile of a[] mule.” The District Court did not discuss factors that would remove Dickerson’s case from the heartland of defendants who commit comparable drug offenses, and we do not find any basis for a finding that Dickerson’s situation is extraordinary. Even if we were to agree with Dickerson that the facts of her case were exceptional, we would be compelled to reject her downward departure based on our analysis pursuant to the other inquiry mandated by § 5K2.20 and Castano-Vasquez. In' analyzing whether Dickerson’s behavior was aberrant, a sentencing court must engage in a three-pronged analysis. According to Application Note 1 to § 5K2.20, a single criminal occurrence or transaction constitutes “aberrant behavior” if it: “(A) was committed without significant planning; (B) was of limited duration; and (C) represents a marked deviation by the defendant from an otherwise law-abiding life.” U.S.S.G. § 5K2.20, cmt. n.l. All three prongs must be satisfied. Here, the District Court limited its discussion to the third factor and made no explicit or implicit findings with respect to the other two. On appeal, the Government does not contest the fact that this offense was a “marked deviation” from Dickerson’s otherwise law-abiding life. However, the other two requirements — regarding planning and duration — were not considered by the District Court, and we will briefly discuss them both. The actual planning undertaken by" }, { "docid": "3345174", "title": "", "text": "grant a departure. Considering the record before us and the relevant case law, we see no reasonable basis for finding that Dickerson’s actions “lacked significant planning” or were “of limited duration,” or that her situation is removed from the heartland of cases involving minor participants in drug importation schemes. We therefore conclude that no downward departure for aberrant behavior is justified by the facts of this case, and we will instruct the District Court -to resen-tence Dickerson to a term of imprisonment that falls within the applicable Guideline range. TV. Conclusion As we have explained above, the District Court committed plain error in sentencing Dickerson to a term of probation in the face of explicit statutory prohibitions on such a sentence. The District Court also erred in granting a downward departure for aberrant behavior on the facts of this case. Accordingly, we will vacate Dickerson’s sentence and remand for resentenc-ing consistent with this opinion, at which time the District Court shall impose a sentence within the appropriate Guideline range of 30 to 37 months. . The PSR also explicitly stated in paragraphs 70 and 71 that, pursuant to 18 U.S.C. § 3651(a)(1), 21 U.S.C. §§ 952(a) and 960(b)(2)(A), and U.S.S.G. § 5B1.1(b)(1), Dickerson was not eligible for a sentence of probation. . The Government does not challenge the propriety of the minor role adjustment. . This argument relied in part upon a psychological evaluation of Dickerson that was performed in July and August of 2003. The report estimated that Dickerson was functioning within a low-average intelligence range, and operated at an early elementary school level in several subject areas. It also indicated that she was significantly depressed, with low self-esteem and immaturity issues. The District Court did not explicitly credit or discredit any of the findings included in this report. . The District Court stated: So I have to consider important factors like making sure my sentence reflects the seriousness of what somebody did. My sentence can’t simply ignore the importance of providing just punishment. And to the extent it becomes in an open courtroom, there are people involved with" }, { "docid": "3345161", "title": "", "text": "the other courts that have considered identical challenges to the review provision of the PROTECT Act amendments, we conclude that the change to our standard of review is essentially a procedural change, rather than a substantive one. See, e.g., Kostakis, 364 F.3d at 51; Mallon, 345 F.3d at 947. The amendment does not increase the punishment for an existing offense, modify the circumstances under which a departure may be granted, criminalize previously innocent behavior, change the elements of an offense, or alter the facts that require proof at trial. Mallon, 345 F.3d at 946. Instead, the new standard of review merely “changes who within the federal judiciary” may weigh in on the decision of whether the legal standards for a departure are met, insofar as it “increased] the number of judges who must consider [the] issue.” Id. Under these circumstauces, no Ex Post Facto concerns arise when we apply the new standard of review to cases that were pending before us when the PROTECT Act took effect. Dickerson contends, however, that even under the PROTECT Act we should review for abuse of discretion here. Her primary argument is based on a flawed reading of 18 U.S.C. § 3742(e)(3)(B). Specifically, she urges that we need not conduct any inquiry under (B)(i) or (B)(ii) if the departure is based on a factor that is explicitly permitted by the Guidelines — for example, aberrant behavior. Therefore, she reasons, there is no de novo review in a case such as hers. However, upon closer examination of the language of § 3742(e)(3)(B), see supra note. 10, we observe that Dickerson’s argument, focused as it is on subsections (i) and (ii), ignores subsection (iii). The clear language of § 3742(e)(3)(B) includes three disjunctive subsections,, and, in order to uphold the downward departure in this case, we must determine that each of the three subsections of § 3742(e)(3)(B) are satisfied. Thus, we are required to examine de novo, under subsection (iii), whether the aberrant behavior departure was justified by the facts of Dickerson’s case. Dickerson’s reading of § 3742(e)(3)(B) is illogical and unsupported. Accordingly, her argument regarding" }, { "docid": "3345186", "title": "", "text": "73 (describing its similar view that factors listed in the Guidelines as permissible grounds for departure automatically satisfy the first two subsections of § 3742(e)(3)(B), but that a de novo inquiry is still necessary to determine whether subsection (iii) is satisfied as well). .At this third stage of our review, we will only review whether the type of departure granted is generally warranted by the facts of the case; we will not consider whether the extent of the departure is appropriate. See, e.g., Bell, 371 F.3d at 243; Thurston, 358 F.3d at 73; Andrews, 353 F.3d at 1156. . Most courts to consider this PROTECT Act question have only examined whether a departure is justified, and have not discussed the first two subsections of § 3742(e)(3)(B) in great detail or considered how the analysis under those subsections might be impacted in cases involving factors included in the Guidelines. See, e.g., Hutman, 339 F.3d at 775. However, our view of the four requisite inquiries is dictated by the statute, and is consistent with each of the nine opinions of other courts listed above. . Of course, we will only engage in this review of the extent of a departure in cases where, under the provisions of 18 U.S.C. § 3742(a) and (b), we have jurisdiction to hear such a challenge in the first instance. Here, our jurisdiction to engage in a review of both the propriety and the extent of Dickerson's downward departure is clearly based upon § 3742(b)(3), as the Government is appealing a sentence that falls below the relevant Guideline range. Thus, this case does not present us with the jurisdictional questions that would accompany a post-PROTECT Act appeal by a defendant of a district court's downward departure ruling. See, e.g., United States v. Linn, 362 F.3d 1261 (9th Cir.2004); cf. United States v. Parker, 902 F.2d 221 (3d Cir.1990); United States v. Denardi, 892 F.2d 269 (3d Cir.1989). . In her motion for a downward departure, Dickerson originally sought a departure based on aberrant behavior under § 5K2.20 or, more generally, based on a combination of factors under" }, { "docid": "3345163", "title": "", "text": "our standard of review must fail. The provision of the PROTECT Act that is relevant here raises four distinct inquiries in which we, as a reviewing court, are to engage: first, did the district court provide an adequate written statement of reasons, as required by 18 U.S.C. § 8553(c), see 18 U.S.C. § 3742(e)(3)(A); second, does the sentence depart from the Guideline range based on a factor that advances the objectives set forth in 18 U.S.C. § 3553(a)(2), and is authorized under 18 U.S.C. § 3553(b), see 18 U.S.C. § 3742(e)(3)(B)(i), (ii); third, does the sentence depart from the Guideline range based on a factor that is justified by the facts of the case, see 18 U.S.C. § 3742(e)(3)(B)(iii); and fourth, if a departure is warranted, was the extent of the departure granted by the district court reasonable, see 18 U.S.C. § 3742(e)(3)(C). In examining the first three questions, we are to engage in de novo review. However, as the subsection of § 3742(e)(3) that mandates the fourth question is not impacted by the PROTECT Act’s de novo standard of review provision, we are to continue to apply an abuse of discretion standard as we review the extent of departures that have been properly granted. See Kostakis, 364 F.3d at 51, Andrews, 353 F.3d at 1155-56. We need not address whether the District Court’s written statement was suf- fieiently specific in light of the requirements in 18 U.S.C. § 3553(c), as the parties do not dispute the adequacy of the written statement. The parties also do not devote significant attention to the second question described above, but, as aberrant behavior is a factor that was considered by the Sentencing Commission and included in the Guidelines as a permissible basis for departures, we have little difficulty concluding that it is a factor that advances the objectives of § 3553(a)(2) and is authorized under § 3553(b). See, e.g., Thurston, 358 F.3d at 73. Having disposed of the first two inquiries, our decision will turn on whether the departure for aberrant behavior was justified by the facts of Dickerson’s case, and, if it" }, { "docid": "3345170", "title": "", "text": "of her case were exceptional, we would be compelled to reject her downward departure based on our analysis pursuant to the other inquiry mandated by § 5K2.20 and Castano-Vasquez. In' analyzing whether Dickerson’s behavior was aberrant, a sentencing court must engage in a three-pronged analysis. According to Application Note 1 to § 5K2.20, a single criminal occurrence or transaction constitutes “aberrant behavior” if it: “(A) was committed without significant planning; (B) was of limited duration; and (C) represents a marked deviation by the defendant from an otherwise law-abiding life.” U.S.S.G. § 5K2.20, cmt. n.l. All three prongs must be satisfied. Here, the District Court limited its discussion to the third factor and made no explicit or implicit findings with respect to the other two. On appeal, the Government does not contest the fact that this offense was a “marked deviation” from Dickerson’s otherwise law-abiding life. However, the other two requirements — regarding planning and duration — were not considered by the District Court, and we will briefly discuss them both. The actual planning undertaken by Dickerson in connection with this offense included the following: she engaged in a preliminary discussion of the details of her involvement with Chino a few weeks prior to her trip; she acquired $900 from Chino and used it to purchase her plane ticket; and she arranged to have a friend pick her up from the airport when she returned to the United States. Additionally, as the Government notes, we might also consider the reasonably foreseeable planning undertaken by others involved in the offense, since § lB1.3(a)(l)(B) of the Guidelines would classify such activity as “relevant conduct” for sentencing purposes. Regardless of whether we look to planning undertaken by others like Chino and Jose in connection with Dickerson’s trip, we do not consider this to be a case where the defendant committed the offense without significant planning. Dickerson had weeks to prepare for the offense, and she engaged in preparatory behavior during that time; she was not simply approached at the airport just before checking her luggage and asked to carry a suitcase onto the plane." }, { "docid": "1392649", "title": "", "text": "to consider whether the departure is “justified by the facts of the case.” Thurston, 358 F.3d at 76. In performing this analysis, we accept the dis trict court’s factual findings unless they are clearly erroneous. See 18 U.S.C. § 3742(e)(3)(C). The Guidelines, in their current form, recognize “aberrant behavior” as a legitimate ground for a downward departure. See U.S.S.G. § 5K2.20 (2003). However, as noted above at n. 6, the Guidelines effective in 1998 govern this case. See United States v. Dewire, 271 F.3d 333, 335 n. 2 (1st Cir.2001). These Guidelines did not take a position on whether “aberrant behavior” was an appropriate ground for a downward departure. See U.S.S.G. Ch. 1 Pt. A(4)(d) (1998) (“The Commission ... has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures.”). Because the 1998 Guidelines are silent on whether “aberrant behavior” is a permissible departure factor, our first task is to determine de novo whether this factor conflicts with the objectives set forth in 18 U.S.C. § 3553(a)(2) or is not authorized by 18 U.S.C. § 3553(b). This task is straightforward. Under the 1998 Guidelines, every circuit court of appeals accepted “aberrant behavior” as a legitimate basis for a downward departure. See Elizabeth Williams, Annotation, Downward Departure from United States Sentencing Guidelines Based on Aberrant Behavior, 164 A.L.R. Fed. 61 (2000) (collecting cases approving “aberrant behavior” as basis for departure). In November 2000, the Sentencing Commission confirmed the correctness of this view by adopting a guideline explicitly recognizing “aberrant behavior” as a legitimate basis for a departure. See U.S.S.G. § 5K2.20 (2003). Thus, we conclude that, under the 1998 Guidelines, “aberrant behavior” is a factor on which the district court could base a departure. Having concluded that “aberrant behavior” can justify a departure, we turn next to consider de novo whether the facts of this case justify granting Mikutowicz a departure on this basis. Under the 1998 Guidelines, we applied a “totality of the circumstances” approach to requests for “aberrant behavior” departures. See United States v. Grandmaison, 77 F.3d 555, 563" }, { "docid": "3345164", "title": "", "text": "Act’s de novo standard of review provision, we are to continue to apply an abuse of discretion standard as we review the extent of departures that have been properly granted. See Kostakis, 364 F.3d at 51, Andrews, 353 F.3d at 1155-56. We need not address whether the District Court’s written statement was suf- fieiently specific in light of the requirements in 18 U.S.C. § 3553(c), as the parties do not dispute the adequacy of the written statement. The parties also do not devote significant attention to the second question described above, but, as aberrant behavior is a factor that was considered by the Sentencing Commission and included in the Guidelines as a permissible basis for departures, we have little difficulty concluding that it is a factor that advances the objectives of § 3553(a)(2) and is authorized under § 3553(b). See, e.g., Thurston, 358 F.3d at 73. Having disposed of the first two inquiries, our decision will turn on whether the departure for aberrant behavior was justified by the facts of Dickerson’s case, and, if it was justified, whether the extent of the departure was reasonable. B. Discussion We first examine the standards governing departures for aberrant behavior, as they are described in the Guideline provision itself and applied in our case law. As we have previously instructed, a sentencing court is required to engage in “two separate and independent inquiries” when considering a departure for aberrant behavior under § 5K2.20. United States v. Castano-Vasquez, 266 F.3d 228, 230 (3d Cir.2001). One inquiry asks “whether the defendant’s case is extraordinary,” and the other asks “whether his or her conduct constituted aberrant behavior.” Id. Under the relevant Guideline provisions, the sentencing court is free to address these inquiries in any order it chooses, as long as it considers both questions. Id. at 234. As we will explain below, we do not think that the District Court adequately addressed either of these requisite inquiries when it considered Dickerson’s downward departure motion. As is true whenever a court considers departing from a Guideline sentencing range, the District Court was required to find that Dickerson’s" }, { "docid": "3345158", "title": "", "text": "the applicable Guideline range for an abuse of discretion, granting substantial deference to the district courts. See Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. D’Amario, 350 F.3d 348, 356 (3d Cir.2003). The amendments contained in the PROTECT Act modified our standard of review, requiring that we consider de novo sentences that fall beyond the range specified by the Guidelines. Although numerous other courts of appeals have already examined the PROTECT Act’s impact on their standard of review, we have not yet spoken on the manner in which the new standard should be applied. The relevant statutory review' provision, as amended by the PROTECT Act, directs courts of appeals to review sentences that are “outside the applicable guideline range” de novo. Under this amended provision, we still review any findings of fact made by the District Court for clear error. Id. The only question before us, then, involves the effect of the de novo review provision, which applies to determinations made under § 3742(e)(3)(A) and (B). The Government asserts that the application here of the-standard articulated in the PROTECT Act does not run afoul of the constitution, meaning that it can be applied to cases on appeal in which the defendants were sentenced prior to the Act’s effective date, and that the Act requires us to review de novo the propriety of a departure. Dickerson, on the other hand, contends that the Ex Post Facto clause prevents us from applying the amended standard of review to her case, as her sentence was imposed prior to April 30, 2003. Alternatively, she urges that where the district court departs based on a factor explicitly permitted by the Guidelines, such as aberrant behavior, we should review only for abuse of discretion. We reject both of Dickerson’s arguments. So far, nine other courts of appeals have published opinions in which they have applied the de novo standard set forth in the PROTECT Act to departure cases that were pending on appeal when the amendments became effective. See United States v. Bell, 371 F.3d 239" } ]

[ { "docid": "22826987", "title": "", "text": "business to Lehman Brothers he acts in the interest of and for the benefit of Mr. Lehman who is not only his underwriting partner but is also a director of an air carrier, Pan American. Mr. Lehman the partner is the same Mr. Lehman the director. The Board is not required to separate him into two personalities, as it were, and to say that Mr. Thomas represents him as a partner but not as a director, if, as is the case here, the representation is in regard to the carrying on of the affairs of Section 409 (a) companies. The undoubted representation which grows out of the partnership we think follows into the directorships when the transactions engaged in are not only by the partners but concern companies regulated by the statute, of which the partners are directors. This is representation within not only the language but the meaning of the statute.” The Rattner decision was rendered at a time when the Securities and Exchange Commission, pursuant to its regulatory power, provided a reporting requirement for § 16 (a) which allowed a partner-director to disclose only that amount of the equity securities of the corporation in question held by his partnership and representing his proportionate interest in the partnership. Rule X-16A-3. After the Rattner decision that Rule was amended to read: “A partner who is required under § 240.16a-l to report in respect of any equity security owned by the partnership shall include in his report the entire amount of such equity security owned by the partnership. He may, if he so elects, disclose the extent of his interest in the partnership and the partnership transactions.” 17 CFR, 1961 Cum. Supp., § 240.16a-3 (b). See Loss, Securities Regulation, Vol. 2, pp. 1102-1104 (1961). Matter of Schwartzman, 262 App. Div. 635, 636-637, 30 N. Y. S. 2d 882, 884, aff’d 288 N. Y. 568, 42 N. E. 2d 22, holding a partnership to be a legal entity for purposes of the Unemployment Insurance Law; Mendelsohn v. Equitable Life Assurance Soc., 178 Misc. 152, 154, 33 N. Y. S. 2d 733, 735," } ]

[ { "docid": "15874067", "title": "", "text": "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. 6. Whether Plaintiffs can prove negligent sale Neither party addresses the particulars of this claim. The only context in which negligent sale claims appear to be recognized is with respect to weapons such as firearms and bullets. The Court is unsure whether cigarette sales provide a comparable situation. Furthermore, Plaintiffs neither describe nor cite to evidence showing how they believe RJR acted negligently in selling cigarettes. Any criticism of RJR’s advertising techniques would seem to be encompassed by Plaintiffs’ (failed) misrepresentation or failure to warn claims. Therefore, the Court dismisses the claim on summary judgment. E. Breach of Express Warranty 1. Whether Plaintiffs can prove breach of express warranty To prove breach of warranty, Plaintiffs must show that Mr. Tompkins relied upon a representation made by RJR and that the representation became part of the “basis for the bargain.” See Traub v. Cornell Univ., No. 94-CV-502, 1998 WL 187401, at *11 (N.D.N.Y. Apr. 15, 1998), certification granted, 1999 WL 224804 (N.D.N.Y. Apr.12,1999). With respect to the numerous advertisements contained in Plaintiffs’ Appendix at Tab 1," }, { "docid": "4900387", "title": "", "text": "Silverstein owns only 100 shares out of a total of 2,-119,709 shares outstanding; that there has never been any concealment of the facts of the transaction; that, indeed, they are fully disclosed in the proxy statement; that, at conferences between the regular attorneys of plaintiff, the staff’ of the Securities and Exchange Commission and himself, in June and July, 1946, it was arranged that plaintiff would retain special counsel to bring this action; that the action has been diligently prosecuted; that there is no reason, in plaintiff’s interest, for the intervention of a stockholder; and that no facts are set forth in the moving affidavit to justify the assertion therein that representation of plaintiff’s interests may be inadequate. I think that the motion to intervene should be granted, even though her financial interest in the outcome is exceedingly small. It seems more than likely that this action never would have been instituted, if she had not brought the matter to the attention of plaintiff’s president and board of directors and if it be true, as stated in her brief, that plaintiff in its annual statement to its stockholders indicated that it had been legally advised that no cause of action existed. It .seems to be true that the facts are undisputed and that only questions of law are involved. But these questions are important, novel and of first impression, for no case involving the liability of a director for profits made by his wife on exercising an option to buy stock in his corporation, given to him and assigned to her, and immediately selling the stock has heretofore arisen. The assistance of another attorney may be very helpful in such a situation. Furthermore, there is an atmosphere of collusion, for the decision to retain special counsel was reached at conferences in which the attorney for defendant participated. I do not mean to intimate that special counsel will not prosecute the action vigorously and to the best of their ability, but they and their client appear to be quite willing that Mrs. Silverstein should be permitted to intervene, for they are" }, { "docid": "934285", "title": "", "text": "CUMMINGS, Circuit Judge. Plaintiff, William F. Hirk, is appealing the dismissal of his amended complaint alleging violations of the Federal Securities Act of 1933 and the Commodity Exchange Act for failure to state a claim. Count I of the amended complaint charged a violation of Section 5 of the Securities Act of 1933 (15 U.S.C. § 77e) and Count II charged a violation of Section 4b of the Commodity Exchange Act of 1936 (7 U.S.C. § 6b). According to the plaintiff, the two individual defendants, brokers and dealers in securities, fraudulently induced him to enter into a trading agreement with defendant Agri-Research Council, Inc. (ARCO), a company engaged in managing discretionary futures trading accounts. Pursuant to this agreement, Hirk opened an account with Miller-Lane & Co., an ARCO futures commission merchant, placed $10,000 in the account, and executed a power of attorney appointing defendant Burlington as his agent and attorney-in-fact to trade in his account. Under this designation, Burlington made numerous transactions in Hirk’s account, using Hirk’s funds as margin deposits. Burlington is the vice-president of the corporate defendant ARCO; defendant Andersen is its president. Hirk claims that during the course of Burlington’s solicitation of the trading agreement, defendants concertedly made various misrepresentations to him regarding the profitability of their enterprise, the competency and experience of the professional analysts on their staff, and the information that would be sent to him regarding trading recommendations and futures trends. They also told Hirk that he would be provided with information concerning all the transactions in his account. Additionally, they made representations that Hirk would lose no more than $7,500 and that at no time would his account fall below $2,500. Notwithstanding that they knew he was inexperienced in commodity trading, they failed to advise him that this was a high risk venture in which substantial losses could occur. Moreover, they showed him profit and loss statements of other accounts which generally gave him the impression that all accounts managed by them were profitable. Hirk claims he eventually lost his initial $10,000 investment and an additional $17,-880 he was required to pay to" }, { "docid": "10110099", "title": "", "text": "for potential losses based upon an evaluation of known and inherent risks in the loan portfolio.” Amended Complaint 11 35. Plaintiff also alleges that in Bell’s report to stockholders for the quarter ended December 31, 1988, defendants, knowing the claim to be false, asserted that Bell’s “asset quality remained strong and [that it had] a nonperforming asset to total asset ratio of .63%.” 1137. As a final example, plaintiff alleges that Bell’s 1989 annual report asserted that “Management believes [Bell] is comfortably within the guidelines and requirements of FIRREA and foresees no problem in complying with its future regulations,” when in fact defendants “knew or recklessly disregarded the fact that Bell was hopelessly incapable of substantially complying with FIRREA because of the severe deterioration in Bell’s loan portfolio.” 1143. We find these representations indistinguishable from those found actionable in Shapiro. There, plaintiffs accused defendants of knowingly or recklessly misrepresenting UJB Financial Corporation’s loan loss reserves as “adequate,” its loan portfolio as “well secured,” and its asset quality as “high.” 964 F.2d at 283. Here, as in Shapiro, if plaintiff can prove that such assertions were made, that they were false, that the defendants knew them to be false or acted with reckless indifference to their falsity, and that plaintiff thereafter suffered a loss by purchasing stock, he will have proved a paradigm case of a violation of § 10(b) and Rule 10b-5. In reaching our conclusion that the amended complaint states a cause of action under the securities laws, we have considered the RTC’s contention that plaintiff has not alleged either direct reliance on the alleged misrepresentation or facts sufficient to support a “fraud-on-the-market” theory. The amended complaint alleges that plaintiff relied on the integrity of the market and the price for Bell stock in making his purchase. Plaintiff thus invokes the fraud-on-the-market theory and is not required to allege or prove individual reliance on particular misrepresentations. Basic Inc. v. Levinson, 485 U.S. 224, 247, 108 S.Ct. 978, 991, 99 L.Ed.2d 194 (1988). The theory’s presumption of reliance is only available, however, if Bell stock was traded on an “open" }, { "docid": "21948094", "title": "", "text": "reason of these representations, which plaintiffs now assert were known by Dutton to be false, they sold and delivered 5,640 shares of Dutton Lumber stock to Dutton for $10 per share. Plaintiffs allege attempted rescission, refusal by Dutton, and a continuing offer to return the money received for sale of the stock. For a second cause of action, plaintiffs charge a breach of fiduciary duty to them as stockholders by a corporate officer founded upon the above allegations. For a third cause of action, plaintiffs allege that the above misrepresentations by Dutton were forwarded to plaintiffs by mail and violate Rule 10b-5 of the Securities and Exchange Commission and section 78 of the Securities Act of 1934. In his answer to the amended complaint, Dutton alleges, as a fourth separate and complete defense to the first three causes of action, that: Alan N. Alpern, an attorney admitted to practice in New York State, is the president of and controls Equities; that Alpern and Equities have for a considerable length of time desired to control Dutton Lumber and have attempted unsuccessfully to purchase his stock; that some time in 1964, Alpern and Equities entered into a conspiracy with plaintiffs and others to compel him to sell his shares to Alpern or Equities; that, in pursuance of the conspiracy, Alpern and Equities served a demand upon Dutton Lumber to sue Dutton to recover profits allegedly made as a result of the transaction described in the amended complaint; that Alpern and Equities, in pursuance of the conspiracy, induced plaintiffs to institute this action for rescission although, with full knowledge of all of the facts alleged in the amended complaint, for twenty months no such suit has been commenced; that the suit was instituted solely to further the desires of Alpern and Equities to control Dutton Lumber and compel defendant to sell his stock; that Alpern and Equities control this litigation; that the prosecution of this action is contrary to public policy. Defendant Dutton in his answer to the amended complaint also counterclaims for damages suffered as a result of the above actions of" }, { "docid": "23143117", "title": "", "text": "E. Borchard, Declaratory Judgments 29, 58 (1941)). Thus, with these three inquiries in mind, we turn to an analysis of whether the district court erred by determining this case did not present a ripe controversy. 1. Adversity of interest In Armstrong we said, “[w]here the plaintiff’s action is based on a contingency, it is unlikely that the parties’ interest will be sufficiently adverse to give rise to a case or controversy within the meaning of Article III.” Armstrong, 961 F.2d at 411-12. In concluding that the instant case was not ripe for adjudication, the district court relied in large part on the representations of the DCR through the Stewart affidavit and a history of the LAD’s non-enforcement against religiously motivated speakers. Thus, in terms of the Step-Saver test, the district court determined that the parties had no adverse interest. Despite Cummings’ assertion that he has engaged, does engage and will engage in prohibited discrimination, the court stated: [N]o enforcement action or private suit has been commenced against [Cummings or the other plaintiffs] as a result. Moreover, although Plaintiffs allege that they intend to engage in similar conduct in the future, without an actual or imminent threat of enforcement of the statute the constitutional issues are not presented in a sufficiently “‘clean-cut and concrete form to render this action ripe.’ ” See [Renne] [501 U.S. at 322,] 111 S.Ct. at 2339. Plaintiffs argue that this case is ripe because, although Defendants have conceded that they will not enforce the LAD against the institutional plaintiffs, they have not waived enforcement of the statute against Cummings or against the Church’s individual members. The Court, however, disagrees with Plaintiffs’ interpretation of Defendants’ waiver as not including a waiver of enforcement against Cummings. The Defendants, recognizing the First Amendment concerns raised in this action, have represented that the LAD does not apply to and will not be enforced against Plaintiffs’ religious worship, beliefs, practice, speech or refusal to speak. See Stewart Aff., ¶¶ 10-13. This Court reads these statements as clearly including Plaintiff Cummings. Accordingly, the Court sees no possibility of state enforcement against him." }, { "docid": "13745712", "title": "", "text": "public policy. In Doody plaintiffs purchased limited partnership interests in private oil and gas tax shelters, one shelter involved there, as here, was YEMCO 1981, and signed subscription agreements containing integration and indemnity clauses. The integration clauses there, as here, essentially stated that no information beyond the partnership agreement had been relied on in making the investment and that no inconsistent oral representations had been made. The Doody court had under consideration plaintiffs’ motion for summary judgment on defendants’ counterclaims. That court granted the motion and stated: The Court finds that enforcing an indemnity provision such as the one in the instant action would discourage prospective plaintiffs from bringing securities fraud actions whenever there is an integration clause in a subscription agreement. Prospective plaintiffs would be discouraged because the plaintiffs would be running the risk of incurring substantial liability for attorneys’ fees and costs. Since the securities laws are a remedial measure intended to encourage the prosecution of securities fraud actions, the Court refuses to enforce this indemnity provision. Of course, as stated herein the subscription agreement may be used at trial as evidence of plaintiffs’ non-reliance on the alleged oral misrepresentations. Id., at 833. Defendants oppose the dismissal of their counterclaims on the grounds of public policy and cite Zissu v. Bear, Stearns & Co., 627 F.Supp. 687 (S.D.N.Y.1986); aff'd on other grounds, 805 F.2d 75 (2nd Cir.1986), in support of their position. Plaintiff in Zissu was a senior partner in a New York City law firm who had engaged extensively in security transactions. In 1981, the plaintiff purchased shares in a limited partnership which engaged in drilling for oil and gas. In making the purchases, the plaintiff executed a series of documents wherein he: 1) set forth his experience in making such purchases; 2) represented he had the requisite experience and knowledge to evaluate the risks involved; 3) represented he could bear the economic risk; and 4) represented he knew that the partnership was newly organized, had no history, and was speculative. In the subscription agreement, the plaintiff agreed to indemnify the partnership from loss, damage or liability" }, { "docid": "16506651", "title": "", "text": "had he done so, the beneficiary would have been entitled to a monthly payment of $642.58 commencing on the first day of the month following Cummings’ death. On August 11 Barbara Jean Cummings, through an attorney, wrote to the Committee requesting a statement of the amount of benefits due her. Frank Sprtel, representing the Committee, replied that no benefits were due; when Barbara Jean made a second request for information in March 1983, the Committee reiterated that no benefits would be paid. Plaintiffs Barbara Jean and LaVerne Cummings (the former spouse and special administratrix of the Cummings’ estate) filed an action for benefits and statutory penalties under the Employee Retirement Income Security Act of 1974 (“ERISA”). Plaintiffs contended that the Plan must pay survivorship benefits to Barbara Jean according to the provision in the divorce decree even though Cummings did not elect a survivorship option under the Plan. Plaintiffs also alleged that defendants filed to comply with requests for information in violation of ERISA, entitling them to statutory penalties. Plaintiffs began their lawsuit on June 2, 1983. Defendants filed a motion for summary judgment dismissing the complaint on the grounds that under the written terms of the Plan, survivorship benefits are not payable automatically when a Plan participant dies. Plaintiffs also filed for summary judgment on the basis that defendants did not adequately inform Cummings of his rights to elect a survivorship option and that defendants knew or should have known of Cummings’ state of mental confusion. In its decision of April 19, 1985 the district court granted defendants’ motion to dismiss Sprtel and denied plaintiff’s motion for statutory penalties for the alleged failure to comply with a request for information. The district court, on the other hand, granted summary judgment for plaintiffs on the ground that the Plan would be “unjustly enriched” if it did not pay benefits to plaintiffs. On September 27, 1985 the district court denied defendants’ motion for reconsideration and entered judgment for the plaintiffs in the amount of $59,713.67, plus interest. Defendants appeal that judgment, and plaintiffs cross-appeal on the calculation of damages. II The" }, { "docid": "1722104", "title": "", "text": "Erlich, but did not explicitly affirm or reject it. On the other hand, the Burnside case, which, like Erlich, was a suit seeking damages for DES-inflicted injuries, generally rejected theories of liability which would bypass the traditional requirement of proximate causation. The basic problem with extending alternative liability into the realm of toxic torts is that it signals a further erosion of the element of causation which still exists, albeit in modified form, in the Summers v. Tice paradigm. The standard set forth in § 433B(3) requires that “it is proved that harm has been caused to the plaintiff” by one of the defendants. In other words, plaintiff is certain and can prove that one of the defendants is responsible for a given, specific incidence of harm, but does not know which defendant is responsible. In Summers v. Tice, Snoparsky, and Sommers, it was certain that one of the defendants had caused the harm because plaintiff had joined all possible defendants. Only at that point did the courts decide that it was fair to shift the evidentiary burden to the defendants. Applying alternative liability analysis to a case like this represents a radical extension of tort liability doctrine. Here, plaintiffs have not sued the entire class of possible tortfeasors. Rather, plaintiffs allege that “[a]t all relevant times, corporate defendants ... accounted for practically the entire production of lead pigments and lead paint in the United States.” Amended Complaint, II39. Thus, they fail to meet the basic requirement of § 433B(3) that all potential tortfeasors be named as defendants. Moreover, their allegation cites the United States market at large. Even in Erlich, the court focused on the fact that plaintiffs had named “those manufacturers who marketed approximately 90% of the DES in the Philadelphia area.” Cum-mins, 495 A.2d at 972 (emphasis added). More fundamentally, as with the theories of enterprise and market share liability, Pennsylvania products liability law does not support the abandonment of the requirement of proximate causation which would be required to apply alternative liability to this case. Again, Burnside, Cum-mins, and Robertson demonstrate that this requirement remains an" }, { "docid": "20165267", "title": "", "text": "Response at 13 (citing Affidavit of Brandon Cummings (executed May 2, 2012), filed May 3, 2012 (Doc. 32-1)). Local rule 56.1(b) requires that any facts set forth in a motion for summary judgment must be “specifically controverted” or they will be deemed waived. D.N.M.LR-Civ. 56.1(b). The facts that D. Mitchell provides in his Response and the citations to Cummings’ affidavit do not specifically controvert the asserted fact that Mr. Montoya contacted Mr. Donatelli’s office and made arrangements to examine the state criminal file. Rather, D. Mitchell asserts that Cummings was the person who actually examined that file and says nothing about who contacted Mr. Donatelli. Because the Response does not specifically controvert the asserted fact that Mr. Montoya contacted Mr. Donatelli, the Court will deems this fact admitted. See D.N.M.LR-Civ. 56.1(b). . The Plaintiffs assert that: While at the office, Mr. Donatelli spoke to Mr. Montoya about the criminal case. Mr. Montoya indicated that he was planning to sue Officer Dennis O'Brien on Mitchell’s behalf for damages based on the incident that was the basis of Mitchell’s criminal convictions. Mr. Donatelli observed Mr. Montoya in one of the firm's conference rooms, and saw him using a portable scanning device to scan in documents from the firm’s criminal case file, which file included a copy of Exhibit A. MSJ ¶ 16, at 10 (setting forth this fact). D. Mitchell disputes this fact and asserts that \"Paralegal Brandon Cummings scanned some materials from attorney Mark Donatelli's file. Dennis W. Montoya did not accompany him. Furthermore, Mr. Cummings scanner broke and he was reduced to taking notes.” Response at 13 (citing Cummings Aff. ¶¶ 11-13, at 2). Cummings’ affidavit is sufficient to controvert the asserted fact that Mr. Montoya examined the state criminal file at Mr. Donatelli’s office. Because the Court must con strue the facts in the light most favorable to the nonmoving party on summary judgment, see Hunt v. Cromartie, 526 U.S. at 550-55, 119 S.Ct. 1545, the Court will modify the asserted fact to reflect that it was Cummings who examined the files at Mr. Donatelli’s office. . The Plaintiffs" }, { "docid": "4900386", "title": "", "text": "on May 24, 1946, she notified plaintiff’s president and board of directors that this transaction appeared to be in direct violation of the Securities Exchange Act and requested that they take such action as might be necessary, including the bringing of suit, to recover the profit for plaintiff; that she made inquiries from time to time thereafter to make sure that proper action was being taken; and that, as a result of such notice and inquiries, this action was instituted on August 19, 1946. She then alleges, as her reasons for seeking to intervene, that it was due to her vigilance, notice and request that this action was commenced; that she may be bound by any judgment therein; that the representation of her interest may be inadequate; that she has no connection with the management of plaintiff, or with defendant; and that she merely asks, in good faith, to protect the interests of plaintiff and its stockholders. In his affidavit opposing the motion a member of the firm of attorneys representing defendant alleges that Mrs. Silverstein owns only 100 shares out of a total of 2,-119,709 shares outstanding; that there has never been any concealment of the facts of the transaction; that, indeed, they are fully disclosed in the proxy statement; that, at conferences between the regular attorneys of plaintiff, the staff’ of the Securities and Exchange Commission and himself, in June and July, 1946, it was arranged that plaintiff would retain special counsel to bring this action; that the action has been diligently prosecuted; that there is no reason, in plaintiff’s interest, for the intervention of a stockholder; and that no facts are set forth in the moving affidavit to justify the assertion therein that representation of plaintiff’s interests may be inadequate. I think that the motion to intervene should be granted, even though her financial interest in the outcome is exceedingly small. It seems more than likely that this action never would have been instituted, if she had not brought the matter to the attention of plaintiff’s president and board of directors and if it be true, as" }, { "docid": "9912672", "title": "", "text": "a relation between the enrichment and the impoverishment; (4) an absence of justification and (5) the absence of a remedy provided by law.” Massachusetts v. Mylan Labs., 357 F.Supp.2d 314, 324 (D.Mass. 2005) (citation omitted). In support of their unjust enrichment claim, Plaintiffs assert that Solé accepted certain benefits, conferred upon him by Plaintiffs, which he should not be entitled to keep without reimbursing Plaintiffs for their value. Solé’s motion for summary judgment will be allowed with respect to this cause of action. Once again, Plaintiffs have failed to specify what exactly Solé received. Significantly, the record clearly reflects what Solé did not receive, ie., the base salary Diálogo, LLC promised to pay when Solé signed on as Sales Director. B. Solé’s Counterclaims 1. Breach of Contract. Solé’s motion for summary judgment will be allowed with respect to this counterclaim, on the issue of liability, for the reasons set forth in Section III.A.1. Whether Solé can recover significant damages on this claim is debatable and must await trial. 2. Fraudulent Misrepresentation. An action for fraudulent misrepresentation requires a plaintiff to prove that the defendant: “made a false representation of material fact; for the purpose of inducing reliance; and that [the] plaintiff relied upon the representation to his or her detriment.” Cummings v. HPG Intern., Inc., 244 F.3d 16, 22 (1st Cir.2001) (citing Danca v. Taunton Sav. Bank, 385 Mass. 1, 429 N.E.2d 1129, 1133 (1982); Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 333 N.E.2d 421, 428 (1975)). Although this counterclaim is not entirely clear, Solé appears to argue that Plaintiffs fraudulently misrepresented how he would be paid and whether he would serve Diálogo, LLC as a consultant or an employee. Plaintiffs deny these allegations, and in this instance, the disputed facts are material and must be resolved before liability can be determined. Consequently, Solé’s motion for summary judgment with respect to this counterclaim must be denied. IV. CONCLUSION For the reasons stated above, the court hereby ALLOWS Solé’s motion for summary judgment with respect to every claim brought against him by Plaintiffs. The court also ALLOWS Solé’s motion" }, { "docid": "1133120", "title": "", "text": "1966, for $17,709.73. One plaintiff who converted still holds his stock, one has sold his sock at a loss, and one holds some stock, having sold the rest at a loss. Plaintiffs allege false and misleading statements on the part of defendants which induced them to convert their debentures into common stock and thereby suffer loss. Adequate Representation Plaintiffs have successfully convinced the court that a plaintiff who has acquired and retained securities of Douglas can “fairly and adequately” represent those who purchased securities and thereafter sold them — and vice versa. Practically every class action that can be brought under the Securities Acts by purchasers of securities involves claims both by those who retained their securities and those who sold them or by those who sold some securities, but still retain others. The answer to this problem is twofold. On the one hand, it is simply that every defrauded stockholder wears two hats, but that his personal interest far overshadows his interest as an equity-holder. Moreover, if, by chance, any class member currently has holdings of Douglas stock so large that he would prefer not to assert his claims for past losses, such a person, once notified of the pending action, always has the option under Fed.R.Civ.P. 23(c) (2) to request exclusion from the class. On the other hand, this case does not involve a real conflict of interest between members of the class such as that involved in Pomierski v. W. R. Grace & Co., 282 F.Supp. 385 (N.D.Ill.1967). In Pomierski, a warrant-holder who did not exercise his rights before cut-off date was found to be unable to represent fairly and adequately those who did exercise their rights because warrant-holders who had exercised their rights would not be willing to have the transaction declared void and be forced to return their stock, repay dividends, and file amended tax returns seeking refunds. In this case, the remedy sought is monetary damages, and the only difference between sellers and retainers may be in their measure of damage. It has recently been held that adequate representation comprises two elements: (1) coincidence" }, { "docid": "9799015", "title": "", "text": "his home without a warrant and probable cause would not “imply the invalidity of his conviction or sentence.” Heck, 512 U.S. at 487, 114 S.Ct. 2364. Additionally, although Ohio law barred Cummings from asserting the illegality of the seizure of his person in the context of the assault charge, Heck is not a bar to Cummings’ assertion of the illegal seizure claim in the instant suit for damages. Cummings’ assault conviction cannot be disturbed whether he was legally or illegally seized; thus, the relevant question becomes whether or not the seizure of Cummings’ person and entry into his home were illegal, and if they were, whether Cummings suffered a compensa-ble injury. See Braxton v. Scott, 905 F.Supp. 455, 458 (N.D.Ohio 1995) (quoted in Shamaeizadeh v. Cunigan, 182 F.3d 391, 396 (6th Cir.1999)) (“[FJourth amendment claims under § 1983 may be brought without setting aside the conviction only if success would not undermine the conviction and if the plaintiff alleges a compensa-ble injury other than the conviction.”) One other point about Heck should be mentioned. The factual situation in this case is distinguishable from the hypothetical situation discussed in footnote 6 of Heck, in which the Court foreclosed § 1983 lawsuits based upon Fourth Amendment violations where the plaintiff was previously convicted in state court of resisting arrest. Heck, 512 U.S. at 487, n. 6, 114 S.Ct. 2364. The Court explains that a subsequent suit for damages would not be cognizable because a lawful arrest is an element of the typical offense of resisting arrest, and thus “[i]n order to prevail in this § 1983 action, [the plaintiff] would have to negate an element of the offense of which he has been convicted.” Id. Conversely, Cummings was convicted of assault, not resisting arrest, and the lawfulness of the arrest is not an element of the crime of his conviction. Indeed, as discussed above, the legality of the arrest is irrelevant to Cummings’ crime of conviction. Thus, footnote 6 of Heck is inapposite to the present case. C. Municipal Liability Before addressing the merits of Cummings’ claims against Sherman and Vaughn, we" }, { "docid": "12588589", "title": "", "text": "HARLINGTON WOOD, Jr., Circuit Judge. There is an old adage that “one who is his own lawyer has a fool for a client.” So it is in this case even though plaintiff, Joan Godlove, is a summa cum laude graduate of the Indiana University School of Law, and a member of the bar. This lawyer should have declined to represent this client. Plaintiff was hired as an attorney by the defendant law firm, Bamberger, Foreman, Oswald & Hahn, in January 1981 and fired in July 1983. In June 1985, she brought this pro se action against her former firm and certain named partners alleging on eight different grounds that her dismissal was unjust. The defendant law firm wisely took heed of the adage and secured outside legal assistance. I. CASE HISTORY There is no need to set forth all the pretrial exercises detailed in the record which is a foot and a half high, but some background is necessary. Plaintiff began this diversity action in June 1985 with a fifty-three page complaint. The district court dismissed the complaint, characterizing it as a “lengthy meandering” statement of facts, with much “irrelevant material” and “bordering on being scandalous.” In granting leave to file an amended complaint, the court made clear what is expected in a complaint. The amended complaint was also fifty-three pages long. The court let it stand, but our comparison of the two complaints evidences little regard for the court’s advice and the customary requirement for “a short and plain statement of the claim_” Fed.R.Civ.P. 8(a). In December 1986 the court dismissed with prejudice Counts I, II, IV, and V of the amended complaint for failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b)(6). The other counts, III, VI, VII, and VIII remained. In July 1989 the district court, upon the second application by defendants for sanctions under Fed.R. Civ.P. 37, dismissed “this cause of action” with prejudice at plaintiffs costs. Plaintiff raises on appeal the 12(b)(6) dismissal of Counts II and V (Counts I and IV are abandoned), and the rule 37 dismissal of the" }, { "docid": "16532371", "title": "", "text": "in public corporations’ SEC reports would threaten such firms with the prospect of liability to an almost unlimited class of persons: all potential investors in the firm’s stock. This position requires an assumption about the Restatement drafters’ view of liability that one federal district court has disapprovingly termed “extraordinary,” see In re Crazy Eddie Securities Litigation, 812 F.Supp. 338, 359 (E.D.N.Y.1993), and that another (the only other reported decision on point) rejected outright. See In re Delmarva Securities Litigation, 794 F.Supp. at 1310-11. Lacking any indication that Pennsylvania courts would adopt so expansive a basis of corporate liability, this Court will decline to impose negligent misrepresentation liability upon the Westinghouse defendants under Restatement (Second) of Torts. § 552(3). Because plaintiffs lack standing to make a state law claim for negligent misrepresentation under both Restatement (Second) of Torts §§ 552(1) and 552(3), Count Six will be dismissed with prejudice. B. Secondary Defendants Plaintiffs assert that Lazard, Price Waterhouse and the underwriters are liable to them for any negligent misrepresentations made either in the financial statements or in the registration statement for the May 1991 public offering. Plaintiffs do not allege that Lazard, Price Waterhouse, or the underwriters made representations to them individual ly. Nor do plaintiffs allege reliance on any particular representation or on the prospectus or registration statement as a whole. The fraud on the market theory has never been made applicable to a common law claim of negligent misrepresentation, and it is not reasonable to predict that Pennsylvania’s Supreme Court, which has adopted Restatement of Torts (Second) § 552(l)’s requirement that the loss be caused by “their justifiable reliance upon the information” would so weaken the causation requirement. Plaintiffs argue that liability for common law misrepresentation is alleged under Subsection 552(3) because “each of the defendants here is under a public duty to give information to the class of plaintiffs before this Court.” Plaintiffs’ Brief at 104. That is an overstatement of the law. Westinghouse is under a public duty imposed by the Securities Act and Securities Exchange Act to provide information to shareholders, and in the ease of" }, { "docid": "23196919", "title": "", "text": "CUMMINGS, Circuit Judge. This action was for violation of Section 10(b) of the Securities Exchange Act of 1934 (15 U.S.C. § 78j (b)) and SEC Rule 10b-5 and for fraud under the common law of Indiana. The only question we find necessary to decide is whether the action is barred by the Indiana 6-year statute of limitations governing suits for fraud. In the original complaint, the plaintiff sought rescission of the sale of her stock in defendant Morgan Packing Co., Inc. to Walter G. Koch. She also sought damages of $1,337,500 (including exemplary damages), claiming that she sold her stock at $90 per share whereas it was worth $300 per share. After a pretrial hearing, plaintiff abandoned all equitable issues. This cause of action concerns stock in Morgan Packing Co., Inc., an Austin, Indiana, cannery formerly operated as a family partnership. Plaintiff was admitted as a partner in 1934. In 1949, the partnership was changed to a corporation, with the control remaining in various members of the Morgan family. At this time, the company required substantial financing, necessitating a voting trust agreement among the stockholders. Plaintiff’s brother, Ivan H. Morgan, was appointed as voting trustee for the trust, which was to remain in effect until February 15, 1966. Voting trust certificates were issued to the stockholders whose stock was placed in the voting trust. Plaintiff’s brother, Ivan H. Morgan, became president of the company upon its incorporation in 1949. After suffering substantial losses from 1953 through 1955, the company has enjoyed substantial profits. In 1956, the plaintiff and other stockholders who were dissatisfied with her brother’s operation of the company sued him and the company. In turn, he and the company filed suit against the plaintiffs. A third state court suit by plaintiff and others asked for her brother’s removal as voting trustee. Thereafter, counsel for the state court litigants negotiated for the sale of the shares belonging to plaintiff and the other dissident stockholders to the company or to her brother. These negotiations failed because the parties could not agree upon a price for the stock. In September 1957," }, { "docid": "22571291", "title": "", "text": "stock could be converted to Class B stock at any point. The Stockholder’s Agreement also provided that the shareholders would select nine out of the fifteen board directors. By virtue of their ownership of the “super-voting” Class A stock, TPG and Continental constituted a majority of the stockholders. TPG and Continental allegedly chose directors who were favorable to their interests. For example, Coulter, a TPG officer, was appointed a director of America West and served on its Executive Committee, which exercised all powers of the Board of Directors between the full Board meetings. Schifter, another TPG officer, was also appointed to the Board of Directors and served on the Compensation Committee, which determined the promotion, salaries, and bonuses of American West officers. 2. Outsourcing of Aircraft Maintenance & Related Operational Problems On January 1, 1994, Defendant William A. Franke became Chief Executive Officer (“CEO”) of America West. Plaintiffs allege that aircraft maintenance deteriorated dramatically during his term as CEO and later as President of the company. Plaintiffs assert that Franke instituted a policy known as “don’t gold plate the plane” (i.e., maintenance workers should only do the minimum) and discontinued “open-door” and “self-disclosure” practices with the Federal Aviation Administration (“FAA”). In December 1995, America West fired 375 aircraft mechanics, half of the maintenance work force, and ■ out-sourced its maintenance to Tramco. In an internal email dated June 22, 1998, an FAA officer described the “maintenance saga” that began in December 1995. The FAA officer stated that “Tramco was not properly doing maintenance” and that the FAA was fighting an “ongoing battle to educate [the] upper management” of America West that it “was, in fact, responsible for oversight.” The FAA began an aggressive enforcement program, which included inspections, warning letters, and meetings. Some of these efforts included: •A December 27, 1995 letter from the FAA to America West stating that Tramco was not in compliance with the Maintenance Policies and Procedures Manual; •A series of incident reports regarding use of improper lubricant, failure to complete all maintenance check requirements, and operation of aircraft without installation of needed equipment such as" }, { "docid": "13907298", "title": "", "text": "revised) (“DSMMD”) describes this condition as follows: The essential features of this disorder are discrete episodes of loss of. control of aggressive impulses resulting in serious as-saultive acts or destruction of property. The degree of aggressiveness expressed during the episodes is grossly out of proportion to any precipitating psychosocial stressors. There are no signs of generalized impulsivity or aggressiveness between the episodes. Prior to his explosion in Mr. Cummings’ office, the plaintiff had last experienced a loss of control five years earlier which resulted in his physically abusing his girlfriend. MSPB Tr., 35-36, 102; McDonough Decl., Ex. H. He also had a violent altercation with another person eight years earlier. Mc-Donough Decl., Ex. H; MSPB Tr., 102. Neither of-those previous incidents appears to have been related to the plaintiffs employment situation. After the December 22, 1990 episode, Mr. Cummings recommended that Mr. Mazzarel-la be removed from his position. Cummings Decl., ¶ 5. He attests -that he based his recommendation solely upon Mr. Mazzarel-la’s violent behavior and not upon the existence of any underlying handicap. After discussions with Mr. Cummings and Mr. Abrams, Mr. Andrew Sacco, Manager of Maintenance Engineering & Operations, decided to issue a Notice of Proposed Removal to Mr. Mazzarella. Id.; Sacco Decl, ¶ 1. Superintendent Meltzer concurred in and signed the Notice, which was issued January 21, 1991. Meltzer Decl., ¶4; McDonough Decl., Ex. D. The Notice invited Mr. Mazzarella to submit responsive material to Mr. Sacco pending a final removal decision; the plaintiff chose not to do so. Sacco Decl., ¶ 3. By letter dated February 7,1991, Mr. Sacco issued the USPS’ final decision removing Mr. Mazzarel-la from his position. McDonough Decl., Ex. E. At that time, Mr. Sacco had no knowledge of the specific nature of the plaintiffs handicap. He made his'decision solely on the basis of the plaintiffs December 22, 1990 conduct. Id. at ¶¶ 2-3. See also Abrams Deck, ¶ 3; Meltzer Decl., ¶ 4. Mr. Mazzarella grieved the USPS’ action through the agency’s negotiated grievance procedure; an arbitrator sustained the removal action in an April 23,1991 award. The plaintiff then filed a" }, { "docid": "3297526", "title": "", "text": "his report, but do argue that he should not be permitted to testify regarding cigarette design, because he has no qualifications that would allow him to offer opinions on that subject. Defendants also assert that his methodology in this regard is not sound, as it consists solely of reviewing various documents that he himself selected, and producing a summary of those documents. Defendants contend that such testimony would not assist the jury, and that it is not sufficiently reliable to satisfy the requirements of Daubert. In response, plaintiff asserts that Dr. Cummings is qualified to testify on subjects related to his work, which plaintiff characterizes as “the cigarette manufacturers’ role in getting young smokers addicted to nicotine in cigarettes, and how [defendants have engineered cigarettes to influence smoking behavior.” She claims that Dr. Cummings has devoted his professional career to studying the defendants’ internal documents, and has thus been able to reach conclusions regarding the alleged decades-long effort to confuse smokers and potential smokers about the contents of cigarettes, the health consequences associated with long-term cigarette use, the effectiveness of advertising by defendants, and the details of their efforts to convolute the truth about all of these factors. Plaintiff contends that Dr. Cummings is qualified to testify about cigarette design based on the fact that he is one of the nation’s foremost experts on nicotine addiction, and cancer prevention as it relates to tobacco epidemiology, tobacco use behaviors, consumer risk perceptions, tobacco product marketing, and “tobacco documents,” and the fact that he has received numerous grants for his research, and has published many peer-reviewed scientific papers that directly focus on cigarette design. Thus, plaintiff argues, Dr. Cummings is well-qualified to testify regarding how variation in product design influences smoking behavior. She argues further that because Dr. Cummings has provided trial testimony in other cases on the areas on which he has been designated an expert in this case — including cigarette design- — • he should also be admitted as an expert here. Plaintiff also contends that Dr. Cummings’ proffered testimony is reliable, as his expertise in researching the internal" } ]

[ { "docid": "20593217", "title": "", "text": "statute of limitations for Brooks’s claim began to run on July 31, 2002, the date that Alabama changed its method of execution to a three-drug lethal injection protocol. At that time, his state court review had been finalized (since 1997), and Brooks knew that he was subject to execution by lethal injection rather than by electrocution. Therefore, he should have filed his claim by July 31, 2004. He did not, waiting instead until November 2, 2015, to intervene in the Mi-dazolam Litigation. Brooks argues, however, that Alabama’s switch on September 11, 2014, to a protocol using midazolam as the first drug signals a “substantial change” in the protocol that operates to reset the statute-of-limitations clock. We are unpersuaded. It is undisputed that Alabama has used a three-drug protocol since it began performing executions by lethal injection in 2002. Brooks also admits that potassium chloride has always been the third drug in the protocol, and that the second drug has always been a paralytic — either pancuroni-um bromide or rocuronium bromide. But Alabama has changed the first drug twice: From 2002 until April 6, 2011, Alabama used sodium thiopental as the first drug in the three-drug sequence. From 2011 to September 10, 2014, it used pentobarbital as the first drug. And since September 11, 2014, it has used midazolam as the first drug. The crux of Brooks’s argument is that the three-drug protocol Alabama implemented on September 11, 2014, constitutes a substantial change because midazolam as the first drug — as opposed to pentobarbi-tal or sodium thiopental — is not an effective analgesic (or pain reliever). But he has provided no evidence to show that pentobarbital or sodium thiopental would have been any more effective in numbing him against the alleged risk of pain posed by the administration of the second and third drugs, which have remained essentially unchanged since 2002. Because he has proffered nothing to establish, by a substantial likelihood, that midazolam constituted a “substantial change” from the earlier protocols, we cannot say that the 2014 switch to midazolam triggered a new statute-of-limitations period. Moreover, as the Supreme Court" } ]

[ { "docid": "10664213", "title": "", "text": "have upheld the midazolam-based execution protocol that Arthur challenges here. Glossip, 135 S.Ct. at 2739-40 (noting that “numerous courts have concluded that the use of midazolam as the first drug in a three-drug protocol is likely to render an inmate insensate to pain that might result from' administration of the paralytic agent and potassium chloride.”); Brooks, 810 F.3d at 818, 819 (concluding that petitioner Brooks had not established a substantial likelihood that Alabama’s lethal injection protocol creates a “demonstrated risk of severe pain,” and noting that this was “an especially difficult burden” given the Supreme Court’s approval of the exact same protocol in Glossip); Chavez, 742 F.3d at 1269 (affirming the dismissal of Eighth Amendment challenge to Florida’s nearly identical lethal injection protocol that uses 500 mg of midazolam as the first drug). Indeed, in Glossip, the Supreme Court emphasized that midazolam has been repeatedly and successfully used without problems as the first drug in the three-drug lethal injection protocol. 135 S.Ct. at 2734; 2740-46. The Supreme Court observed that, in October 2013, Florida became the first state to substitute midazo-lam for pentobarbital as part of a three-drug protocol. Id. at 2734. The Supreme Court stressed that, at the time that it decided Glossip in June 2015, Florida had conducted 11 executions using this lethal injection protocol (with midazolam as the first drug). Id. (citing Brief for State of Florida as Amicus Curiae 2-3 and Chavez, 742 F.3d at 1269). The Glossip Court noted that 12 executions total (including the 11 from Florida and one from Oklahoma) had been conducted using this three-drug protocol “without any significant problems.” Id, at 2734, 2746. Since then, Florida has executed two additional inmates under that protocol. See Execution List: 1976—pres-ent, Fla. Dep’t of CoRR., http://www.de. state.fl.us/oth/deathrow/execlist.html (providing the list of executed Florida inmates); Execution by Lethal Injection Procedures, Fla. Dep’t of Corr. (Jan. 9, 2015), http://www.de.state.fl.us/oth/deathrow/ lethal-injection-procedures-as-oL.01-09-15. pdf (describing Florida’s current lethal injection protocol). Arthur has failed to show not only that compounded pentobarbital is an available alternative to' the ADOC but also that ADOC’s protocol creates a substantial risk of severe pain" }, { "docid": "10664132", "title": "", "text": "injection executions, and exempted the ADOC from the Alabama Administrative Procedure Act in exercising that authority. Id § 15-18-82.1(g). The ADOC has used a three-drug lethal injection protocol since it began performing executions by lethal injection in 2002. See Brooks v. Warden, 810 F.3d 812, 823 (11th Cir.), cert. denied sub nom. Brooks v. Dunn, — U.S. -, 136 S.Ct. 979, 193 L.Ed.2d 813 (2016). Each drug in a three-drug protocol is intended to serve a specific purpose. The first drug should render the inmate unconscious to “ensure[] that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs”; the second drug is a paralytic agent that “inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration”; and the third drug “interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.” Baze v. Rees, 553 U.S. 35, 44, 128 S.Ct. 1520, 1527, 170 L.Ed.2d 420 (2008) (plurality opinion). The third drug in the ADOC protocol has always been potassium chloride, and the second drug has always been a paralytic agent—either pancuronium bromide or rocuronium bromide. Brooks, 810 F.3d at 823. However, the ADOC has changed the first drug in its protocol twice. Id. From 2002 until April 2011, it used sodium thiopental as the first drug in the three-drug sequence. Id. But a national shortage of sodium thiopental forced states, including Alabama, to seek a replacement for sodium thiopental as the first drug in the series. See Glossip v. Gross, 576 U.S. -, -, 135 S.Ct. 2726, 2733, 192 L.Ed.2d 761 (2015) (explaining that the sole domestic manufacturer of sodium thiopental ceased production of the drug in 2009 and exited the market entirely in 2011). From April 2011 until September 10, 2014, Alabama used pentobarbital as the first drug. Brooks, 810 F.3d at 823. As the Supreme Court has noted, “[bjefore long, however, pentobarbital also became unavailable.” Glossip, 135 S.Ct. at 2733. Arthur has acknowledged that Alabama’s supply of commercially manufactured pen-tobarbital expired on or around November 2013. From September 11, 2014, until" }, { "docid": "21779344", "title": "", "text": "paralyzing the diaphragm, stops respiration”; and the third drug “interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.” Baze v. Rees, 553 U.S. 35, 44, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality op.). The third drug in the ADOC protocol has always been potassium chloride, and the second drug has always been a paralytic agent—either pancuronium bromide or ro-curonium bromide. Brooks, 810 F.3d at 823. However, the ADOC has changed the first drug in the protocol twice: From 2002 until April 2011, it used sodium thiopental as the first drug in the three-drug sequence; from April 2011 until September 10, 2014, it used pentobarbital as the first drug; and from September 11, 2014, until the present, it has used midazolam hydrochloride as the first drug. Id C. Boyd’s present suit is one of several challenges brought by Alabama death row inmates pursuant to 42 U.S.C. § 1983 in the Middle District of Alabama, alleging that Alabama’s current lethal injection protocol is unconstitutional. On October 2, 2014, less than a month after the ADOC substituted midazolam for pentobarbital as the first drug in the lethal injection protocol, Boyd brought suit in that court and, in December 2014, filed an amended complaint that alleged the following facts. Boyd asserts that the ADOC’s switch from pentobarbital to midazolam renders it substantially more likely that he will suffer unnecessarily during the execution. Unlike pentobarbital, Boyd says, midazolam is “wholly unsuitable as the first drug in a three-drug lethal injection protocol because it will not render [him] unconscious, numb, and insensate from the administration of the painful second and third drugs, roeuronium bromide and potassium chloride.” Boyd also contends that the ADOC’s manner of determining whether inmates are rendered insensate to pain by the first drug—the “pinch test”—is “wholly ineffective” because, even if an inmate cannot feel a pinch, he may be able to feel the far more painful sensations caused by asphyxiation. Boyd further alleges that the ADOC has kept important information concerning its lethal injection protocol secret, which prevents inmates from seeking effective judicial review of" }, { "docid": "22790517", "title": "", "text": "drugs in their lethal injection protocols. See Workman v. Bredesen, 486 P. 3d 896, 902 (CA6 2007). The first drug, sodium thiopental (also known as Pentothol), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. App. 762-763, 631-632. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Id., at 763. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. Ibid. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. Id., at 493-494, 541, 558-559. B Kentucky replaced electrocution with lethal injection in 1998. 1998 Ky. Acts ch. 220, p. 777. The Kentucky statute does not specify the drugs or categories of drugs to be used during an execution, instead mandating that “every death sentence shall be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death.” Ky. Rev. Stat. Ann. § 431.220(l)(a) (West 2006). Prisoners sentenced before 1998 have the option of electing either electrocution or lethal injection, but lethal injection is the default if — as is the case with petitioners — the prisoner refuses to make a choice at least 20 days before the scheduled execution. §431.220(l)(b). If a court invalidates Kentucky’s lethal injection method, Kentucky law provides that the method of execution will revert to electrocution. §431.223. Shortly after the adoption of lethal injection, officials working for the Kentucky Department of Corrections set about developing a written protocol to comply with the requirements of § 431.220(l)(a). Kentucky’s protocol called for the injection of 2 grams of sodium thiopental, 50 milligrams of pancuronium bromide, and 240 milliequivalents of potassium chloride. In 2004, as a result of this litigation, the department chose to increase the amount of sodium thiopental from 2 grams to 3 grams. App. 762-763, 768. Between injections, members of the execution" }, { "docid": "19538017", "title": "", "text": "statute delegates the task of prescribing the drugs necessary to compound a lethal injection to the Department of Corrections. § 15-18-82.1(f). Consistent with the practice in other States following the national shortage of sodium thiopental and pentobarbital, the department has adopted a protocol involving the same three drugs considered in Glossip . See Brooks v. Warden, 810 F.3d 812, 823 (C.A.11 2016). Perhaps anticipating constitutional challenges, Alabama's legislature enacted a contingency plan: The statute provides that \"[i]f electrocution or lethal injection is held to be unconstitutional ... all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution.\" § 15-18-82.1(c). B Thomas Douglas Arthur killed his paramour's husband in 1982. 840 F.3d 1268, 1272-1273 (C.A.11 2016). Over the next decade, two juries found Arthur guilty of murder, and each time, Arthur's conviction was overturned on appeal. Ibid . After a third trial in 1992, Arthur was convicted and sentenced to death. Ibid. Since then, Arthur has been scheduled to die on six separate occasions, and each time, his execution was stayed. Id., at 1275, n. 2. After 34 years of legal challenges, Arthur has accepted that he will die for his crimes. He now challenges only how the State will be permitted to kill him. Arthur asserted two distinct claims in the District Court. First, Arthur asserted a facial challenge, arguing that midazolam is generally incapable of performing as intended during Alabama's three-drug lethal-injection procedure. Second, Arthur asserted an as-applied challenge, arguing that because of his individual health attributes, midazolam creates a substantial risk of severe pain for him during the procedure. The District Court considered these two claims separately. With respect to the facial challenge, the District Court ordered bifurcated proceedings, with the first hearing limited to the availability of a feasible alternative method of execution. App. to Pet. for Cert. 189a, and n. 2. Arthur's initial complaint proposed a single dose either of pentobarbital or sodium thiopental rather than a three-drug protocol, but the District Court found that those methods were unavailable given the elimination of both drugs from the domestic" }, { "docid": "19642451", "title": "", "text": "Court today turns aside petitioners' plea that they at least be allowed a stay of execution while they seek to prove midazolam's inadequacy. The Court achieves this result in two ways: first, by deferring to the District Court's decision to credit the scientifically unsupported and implausible testimony of a single expert witness; and second, by faulting petitioners for failing to satisfy the wholly novel requirement of proving the availability of an alternative means for their own executions. On both counts the Court errs. As a result, it leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake. I A The Eighth Amendment succinctly prohibits the infliction of \"cruel and unusual punishments.\" Seven years ago, in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), the Court addressed the application of this mandate to Kentucky's lethal injection protocol. At that time, Kentucky, like at least 29 of the 35 other States with the death penalty, utilized a series of three drugs to perform executions: (1) sodium thiopental, a \"fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection\"; (2) pancuronium bromide, \"a paralytic agent that inhibits all muscular-skeletal movements and ... stops respiration\"; and (3) potassium chloride, which \"interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.\" Id., at 44, 128 S.Ct. 1520 (plurality opinion of ROBERTS, C.J.). In Baze, it was undisputed that absent a \"proper dose of sodium thiopental,\" there would be a \"substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride.\" Id., at 53, 128 S.Ct. 1520. That is because, if given to a conscious inmate, pancuronium bromide would leave him or her asphyxiated and unable to demonstrate \"any outward sign of distress,\" while potassium chloride would cause \"excruciating pain.\" Id., at 71, 128 S.Ct. 1520 (Stevens, J., concurring in judgment). But the Baze petitioners conceded that if administered as intended, Kentucky's method of execution would nevertheless \"result in a humane death,\"" }, { "docid": "167714", "title": "", "text": "resulted in a complete tear of her aorta. Cole was subsequently convicted by a jury of first degree murder and sentenced to death. Cole v. State, 164 P.3d 1089, 1092 (Okla.Crim.App.2007). .All four of the plaintiffs have exhausted their state and federal court remedies and the State of Oklahoma has established specific execution dates for each of them. Plaintiff Warner is scheduled to be executed on January 15, 2015. Plaintiff Glossip is scheduled to be executed on January 29, 2015. Plaintiff Grant is scheduled to be executed on February 19, 2015. Plaintiff Cole is scheduled to be executed on March 5, 2015. The State’s Lethal Injection Protocol For many years, the State of Oklahoma utilized a three-drug lethal injection protocol comprised of sodium thiopental, pancu-ronium bromide, and potassium chloride. “The first drug, sodium thiopental ..., is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection.” Baze v. Rees, 553 U.S. 35, 44, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). “The second drug, pancuronium bromide ..., is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration.” Id. “Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.” Id. Since approximately 2010, the State of Oklahoma has been unable to obtain sodium thiopental, either commercially manufactured or compounded, for use in executions. Although the State of Oklahoma was able, for a short time, to obtain and utilize an alternative barbiturate, pento-barbital, during executions, that drug has also become unavailable to the State of Oklahoma for use in its executions. See Pavatt v. Jones, 627 F.3d 1336, 1337 (10th Cir.2010) (addressing challenge to State of Oklahoma’s planned use of pentobarbital). In approximately early 2014, the State of Oklahoma decided to substitute midazo-lam hydrochloride (midazolam), a sedative in the benzodiazepine family of drugs, for sodium thiopental and pentobarbital. In other words, the State of Oklahoma intended for midazolam to be utilized, as the first drug in its lethal injection protocol, to render an inmate unconscious prior to the" }, { "docid": "21779343", "title": "", "text": "all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution.” Id. § 15-18-82.1(e). The statute does not prescribe any particular method of lethal injection; the legislature left it to the Alabama Department of Corrections (“ADOC”) to devise the policies and procedures governing lethal injection executions, and exempted the ADOC from the Alabama Administrative Procedure Act in exercising that authority. Id. § 15-18-82.1(g). The ADOC has used a three-drug lethal injection protocol since it began performing executions by lethal injection in 2002. See Brooks v. Warden, 810 F.3d 812, 823 (11th Cir.), cert. denied sub nom. Brooks v. Dunn, — U.S. -, 136 S.Ct. 979, 193 L.Ed.2d 813 (2016). Each drug in a three-drug protocol is intended to serve a specific purpose: the first drug should render the inmate unconscious to “ensure[] that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs”; the second drug is a paralytic agent that “inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration”; and the third drug “interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.” Baze v. Rees, 553 U.S. 35, 44, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality op.). The third drug in the ADOC protocol has always been potassium chloride, and the second drug has always been a paralytic agent—either pancuronium bromide or ro-curonium bromide. Brooks, 810 F.3d at 823. However, the ADOC has changed the first drug in the protocol twice: From 2002 until April 2011, it used sodium thiopental as the first drug in the three-drug sequence; from April 2011 until September 10, 2014, it used pentobarbital as the first drug; and from September 11, 2014, until the present, it has used midazolam hydrochloride as the first drug. Id C. Boyd’s present suit is one of several challenges brought by Alabama death row inmates pursuant to 42 U.S.C. § 1983 in the Middle District of Alabama, alleging that Alabama’s current lethal injection protocol is unconstitutional. On October 2, 2014, less than" }, { "docid": "19538011", "title": "", "text": "Petitioner Thomas Arthur, a prisoner on Alabama's death row, has met this challenge. He has amassed significant evidence that Alabama's current lethal-injection protocol will result in intolerable and needless agony, and he has proposed an alternative-death by firing squad. The Court of Appeals, without considering any of the evidence regarding the risk posed by the current protocol, denied Arthur's claim because Alabama law does not expressly permit execution by firing squad, and so it cannot be a \"known and available\" alternative under Glossip . Because this decision permits States to immunize their methods of execution-no matter how cruel or how unusual-from judicial review and thus permits state law to subvert the Federal Constitution, I would grant certiorari and reverse. I dissent from my colleagues' decision not to do so. I A Execution by lethal injection is generally accomplished through serial administration of three drugs. First, a fast-acting sedative such as sodium thiopental induces \"a deep, comalike unconsciousness.\" Baze v. Rees, 553 U.S. 35, 44, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion). Second, a paralytic agent-most often pancuronium bromide -\"inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration.\" Ibid . Third, potassium chloride induces fatal cardiac arrest. Ibid . The first drug is critical; without it, the prisoner faces the unadulterated agony of the second and third drugs. The second drug causes \"an extremely painful sensation of crushing and suffocation,\" see Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us, 63 Ohio St. L.J. 63, 109, n. 321 (2002) ; but paralyzes the prisoner so as to \"mas[k] any outward sign of distress,\" thus serving States' interest \" 'in preserving the dignity of the procedure,' \" Baze, 553 U.S., at 71, 73, 128 S.Ct. 1520 (Stevens, J., concurring in judgment). And the third drug causes an \"excruciating burning sensation\" that is \"equivalent to the sensation of a hot poker being inserted into the arm\" and traveling \"with the chemical up the prisoner's arm and ... across his chest until it reaches his heart.\" Denno," }, { "docid": "20593200", "title": "", "text": "U.S. -, 134 S.Ct. 1541, 188 L.Ed.2d 562 (2014). On September 10, 2014, the Defendants (collectively, the Alabama Department of Corrections or “ADOC”) amended Alabama’s execution protocol in two ways: (1) they substituted midazolam hydrochloride for pentobarbital as the first drug administered in its three-drug lethal-injection sequence, and (2) they substituted rocuroni-um bromide for pancuronium bromide as the second drug to be administered. The third drug, potassium chloride, remained the same. Thereafter, Brooks’s execution date was initially set for May 21, 2015, but the Alabama Supreme Court stayed the execution, pending the Supreme Court’s decision in Glossip v. Gross, — U.S. -, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015), a case that squarely raised Eighth Amendment claims about the use of midazolam in lethal-injection executions in Oklahoma. While Glossip was working its way through the courts, a consolidated action was being litigated in the United States District Court for the Middle District of Alabama. That group of cases began as one lawsuit originally filed on April 6, 2012, when an Alabama death row inmate sued pursuant to 42 U.S.C. § 1983 to challenge the constitutionality of Alabama’s lethal injection protocol. See Grayson v. Dunn, No. 12-cv-00316-WKW, — F.Supp.3d -, 2015 WL 9413120 (M.D.Ala.2015). The lawsuit initially challenged Alabama’s previous lethal injection protocol, but it evolved along with the state’s new protocol, and now is known as the “Midazolam Litigation.” Since 2012, cases brought by four other Alabama death row inmates have been consolidated into the Midazolam Litigation. On October 18, 2005, the district court denied the state’s motion to dismiss the Midazolam Litigation, and on November 20, 2015, the district court set an evidentiary hearing for April 19-22, 2016. Although the consolidated action had been pending in district court since 2012, Brooks did not move to intervene until November 2, 2015, more than three-and-a-half years after the suit was commenced, and forty days after the state moved the Alabama Supreme Court to set an execution date for Brooks. On November 23, 2015, the district court granted the motion to intervene. Earlier on the same day, the Alabama Supreme Court had" }, { "docid": "20593212", "title": "", "text": "an effective lethal injection protocol, we are uncertain whether it has ever been used before as a stand-alone execution drag. Brooks alleges that “experts [have] stated” that a sufficient dose of sodium thiopental “would cause death without need of a paralytic or potassium chloride,” but he cites no support for that allegation. Furthermore, while he alleges that it was “the primary drag used in three-drug protocols for over a decade,” he does not say that it has ever been used as the sole drug in a lethal injection execution. Without some palpable evidence that sodium thio-pental is currently “known and available” to the ADOC and would constitute a viable alternative method of execution — and Brooks has offered us only two newspaper articles and a letter to the FDA — there is nothing remotely resembling a showing of a substantial likelihood that Brooks could satisfy this prong of the Glossip test. Brooks’s third proposed alternative is to use midazolam alone, and not in concert with two other drugs. Alabama already uses midazolam as the first drug in its three-drug cocktail. And it is undisputed that midazolam is currently available to the ADOC. But the only evidence that Brooks has provided us regarding the efficacy of a single-drug execution protocol using midazolam is a citation to Glossip, where the Court noted that the. district court had found that “a massive 500-milli-gram dose” of midazolam “will likely cause death in under an hour.” Glossip, 135 S.Ct. at 2741 n. 4. Brooks admits in his complaint that a single drag lethal injection protocol using midazolam “has not previously been used,” and “there are still questions concerning whether the ceiling effect of midazolam would preclude a fatal dose of the drag.” Still, Brooks alleges that the defendants cannot justify using the second and third drug in the execution protocol given the increased risk of pain that they pose. On this record, Brooks has failed to show a substantial likelihood that a single-drag execution protocol using only midazo-lam is a feasible, readily implementable, and significantly safer method of execution. For starters, Brooks’s admissions that a" }, { "docid": "10664265", "title": "", "text": "of cases began as one lawsuit [filed in April 2012] when an Alabama death row inmate sued pursuant to 42 U.S.C. § 1983 to challenge the constitutionality of Alabama's lethal injection protocol.... [The lawsuit] evolved along with the state's new protocol, and now is known as the 'Midazolam Litigation.’ Since 2012, cases brought by four other Alabama death row inmates have been consolidated into the Mi-dazolam Litigation.” Brooks, 810 F.3d at 817. Petitioner Brooks himself also’ successfully intervened, in the Midazolam Litigation. Id Five additional inmates joined the suit after this court decided Brooks. Brooks was executed on January 21, 2016. A search of the ADOC prison records reveals that all 10 remaining plaintiffs are currently on Holman's death row, although the State has set a December 8, 2016 execution date for one of the plaintiffs. . In his Third Amended Complaint, Arthur alleged that, because of his age and an “anxiety disorder,” there is a high likelihood that he will suffer a \"paradoxical reaction” to midazolam. Arthur offered absolutely no proof on this subject, and the district court rightly considered it abandoned. . Arthur had filed a declaration from Dr. Kaye who opined that midazolam would not work during the execution, whether as a large or small dose, Even in a 500-mg dose, Dr. Kaye’s opinion is that midazolam is “incapable of holding an inmate in an unconscious state through the administration of the second and third lethal injection drugs.” Dr. Kaye admitted that midazolam is useful to induce unconsciousness and that he had used it for this purpose ‘,'many, many times,” but that it is not effective to keep a patient unconscious. Dr. Kaye opined that this is because of mi-dazolam’s “ceiling effect,” such that it stops being effective above a certain dose. - ■ . Although it is not entirely clear, it appears that the petitioner in Brooks was arguing that compounded (not commercially manufactured) pentobarbital was a known and available alternative method of execution. See Brooks, 810 F.3d at 819 & n.2. Arthur's allegation that Alabama’s supply of commercially manufactured pentobarbital expired on or around November" }, { "docid": "10664134", "title": "", "text": "the present, Alabama has used midazolam as the first drug in the series. Brooks, 810 F.3d at 823. Currently, Alabama’s lethal injection protocol calls for the administration of: (1) a 500-mg dose of midazolam, (2) followed by a 600-mg dose of rocuronium bromide, and (3) finally, 240 milliequivalents of potassium chloride. This lethal injection protocol involves the same drugs, administered in the same sequence, as the protocol at issue in Glossip. 135 S.Ct. at 2734-35. III. 2011: COMPLAINT ABOUT PENTOBARBITAL Arthur’s execution date is currently set for November 3, 2016. This is the sixth time that Alabama has scheduled his execution, and this case is Arthur’s third § 1983 challenge to lethal injection as the method of his execution. In May 2007, shortly after the State filed a motion to set an execution date, Arthur filed a § 1983 action challenging Alabama’s lethal injection protocol which in 2007 included sodium thiopental as the first drug. (CM/ECF for the U.S. Dist. Ct. for the S.D. Ala., case no. 1:07-cv-342, doc. 1 at 1-2, 6; doc. 15 at 11). The district court dismissed that complaint based on laches, and this Court affirmed. (Id., docs. 19, 20, 27, 28). In October 2007, Arthur filed a second challenge to Alabama’s lethal injection protocol, which the district court again dismissed for unreasonable delay, and this Court affirmed. (CM/ECF for the S.D. Ala., case no. 1:07-cv-722, docs. 1, 22, 23, 28, 29). In April 2011, Alabama switched from using sodium thiopental to pentobarbital as the first drug in its lethal injection protocol. Brooks, 810 F.3d at 823. On June 8, 2011, Arthur filed another § 1983 complaint in federal district court, challenging Alabama’s new lethal injection protocol, especially its use of pentobarbital as the first drug. As amended, Arthur’s complaint raised three § 1983 claims: (1). the ADOC’s use of pentobarbital as the first drug in its three-drug lethal injection protocol violated the Eighth Amendment’s prohibition on cruel and unusual punishment; (2) the ADOC’s secrecy in adopting and revising its lethal injection protocol violated the Fourteenth Amendment’s Due Process Clause; and (3) the ADOC had materially" }, { "docid": "14004392", "title": "", "text": "a sedative in the same family of drugs as Valium. See Glossip, 135 S.Ct. at 2733-34. In 2014, Oklahoma adopted a protocol that called for the administration of 500 milligrams of midazolam—about 100 times the usual therapeutic dose—followed by a paralytic agent (pancuronium bromide, roeu-ronium bromide, or vecuronium bromide) and potassium chloride. Death-row inmates filed a § 1983 action alleging that Oklahoma’s protocol violated the Eighth Amendment. AlS relief, the inmates sought a stay, which the district court denied. The Supreme Court affirmed the denial for two “independent reasons”: that the district court “did not commit clear error when it found that midazolam is highly likely to render a person unable to feel pain during an execution”; and that Oklahoma was unable to acquire either pentobarbital or sodium thiopental. Id. at 2731, 2738-39. In October 2016, Ohio adopted a lethal-injection protocol using the same three drugs that Oklahoma uses. Like the Oklahoma protocol, the Ohio protocol contains several procedural safeguards to ensure that executions are carried out humanely, including guidelines for identifying viable IV sites, detailed requirements for training execution team members, and a “consciousness cheek” after the 500-milligram injection of midazolam. If the prisoner is found to be conscious, a qualified drug administrator can inject another 500 milligrams of midazolam. After confirming that the prisoner is unconscious, the team can then administer the second and third drugs. See R. 667-1 at 19828-29. Ohio planned to use this protocol to execute Phillips, Otte, and Tibbetts during the first four months of this year. The three inmates then filed complaints and moved for a preliminary injunction, claiming among other things that Ohio’s three-drug protocol violates the Eighth Amendment’s ban on “cruel and unusual punishments.” The plaintiffs’ theory here is the same one the Court rejected in Glossip: that the first drug—a massive dose of midazolam—will not prevent them feeling severe pain after injection of the second and third drugs. After an evidentiary hearing, the district court found that “use of midazolam as the first drug” in Ohio’s three-drug protocol would create a “substantial risk of serious harm” under Baze and Glossip." }, { "docid": "11959288", "title": "", "text": "Amendment claim is time-barred. Second, he unreasonably delayed in bringing this lawsuit. Third, the equities do not lie in Brooks’s favor. A. Substantial Likelihood of Success on the Merits Like Glossip, the present case requires Brooks to establish a substantial likelihood that Alabama’s “lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives.” Glossip, 135 S.Ct. at 2737. In lieu of Alabama’s present three-drug execution protocol employing the injection of midazo-lam, rocuronium bromide, and potassium chloride, in that sequence, Brooks has identified a midazolam, single-drug lethal injection as one such alternative method of execution. There is no issue as to the availability of midazolam for executions, and it is currently being used in other states as part of three-drug executions. However, Brooks concedes that to date, an execution using a single-drug, midazolam-only protocol has not been used by any state. (Doc. # 72 at 17.) In briefing, Brooks attempted to amend his single-drug midazolam alternative execution procedure, claiming that for it to be constitutional, it must also (1) be arrived at “through the use of scientific evidence or consultation,” (2) provide for the timing of the multiple doses of midazolam, if necessary, (3) provide for equipment to monitor breathing or heart rate, (4) provide for reversing the effects of a large dose of midazolam in the event a stay of execution is entered, (5) provide for how many injections will take place, and (6) provide for assessing the quality of the IV lines. (Doc. # 84 at 7-8.) Because they arise in briefing, these challenges are not properly raised and will not be addressed. The gist of Brooks’s Eighth Amendment claim is that midazolam will not adequately render an inmate insensate to pain so as prevent the inmate from feeling the effects of the second and third drugs of the ADOC’s three-drug protocol. (Doc. # 72; Doc. # 81 at 4-5.) He also contends that the ADOC’s switch from pentobarbital to midazolam in its execution protocol was a “significant” or “substantial” change in the execution protocol." }, { "docid": "22790516", "title": "", "text": "v. Georgia, 428 U. S. 153 (1976), however, state legislatures began responding to public calls to reexamine electrocution as a means of ensuring a humane death. See S. Banner, The Death Penalty: An American History 192-193, 296-297 (2002). In 1977, legislators in Oklahoma, after consulting with the head of the anesthesiology department at the University of Oklahoma College of Medicine, introduced the first bill proposing lethal injection as the State’s method of execution. See Brief for Petitioners 4; Fordham Brief 21-22. A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States. It is also the method used by the Federal Government. See 18 U. S. C. § 3591 et seq. (2000 ed. and Supp. V); App. to Brief for United States as Amicus Curiae la-6a (lethal injection protocol used by the Federal Bureau of Prisons). Of these 36 States, at least 30 (including Kentucky) use the same combination of three drugs in their lethal injection protocols. See Workman v. Bredesen, 486 P. 3d 896, 902 (CA6 2007). The first drug, sodium thiopental (also known as Pentothol), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. App. 762-763, 631-632. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Id., at 763. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. Ibid. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. Id., at 493-494, 541, 558-559. B Kentucky replaced electrocution with lethal injection in 1998. 1998 Ky. Acts ch. 220, p. 777. The Kentucky statute does not specify the drugs or categories of drugs to be used during an execution, instead mandating that “every death sentence shall be" }, { "docid": "10664133", "title": "", "text": "potassium chloride, and the second drug has always been a paralytic agent—either pancuronium bromide or rocuronium bromide. Brooks, 810 F.3d at 823. However, the ADOC has changed the first drug in its protocol twice. Id. From 2002 until April 2011, it used sodium thiopental as the first drug in the three-drug sequence. Id. But a national shortage of sodium thiopental forced states, including Alabama, to seek a replacement for sodium thiopental as the first drug in the series. See Glossip v. Gross, 576 U.S. -, -, 135 S.Ct. 2726, 2733, 192 L.Ed.2d 761 (2015) (explaining that the sole domestic manufacturer of sodium thiopental ceased production of the drug in 2009 and exited the market entirely in 2011). From April 2011 until September 10, 2014, Alabama used pentobarbital as the first drug. Brooks, 810 F.3d at 823. As the Supreme Court has noted, “[bjefore long, however, pentobarbital also became unavailable.” Glossip, 135 S.Ct. at 2733. Arthur has acknowledged that Alabama’s supply of commercially manufactured pen-tobarbital expired on or around November 2013. From September 11, 2014, until the present, Alabama has used midazolam as the first drug in the series. Brooks, 810 F.3d at 823. Currently, Alabama’s lethal injection protocol calls for the administration of: (1) a 500-mg dose of midazolam, (2) followed by a 600-mg dose of rocuronium bromide, and (3) finally, 240 milliequivalents of potassium chloride. This lethal injection protocol involves the same drugs, administered in the same sequence, as the protocol at issue in Glossip. 135 S.Ct. at 2734-35. III. 2011: COMPLAINT ABOUT PENTOBARBITAL Arthur’s execution date is currently set for November 3, 2016. This is the sixth time that Alabama has scheduled his execution, and this case is Arthur’s third § 1983 challenge to lethal injection as the method of his execution. In May 2007, shortly after the State filed a motion to set an execution date, Arthur filed a § 1983 action challenging Alabama’s lethal injection protocol which in 2007 included sodium thiopental as the first drug. (CM/ECF for the U.S. Dist. Ct. for the S.D. Ala., case no. 1:07-cv-342, doc. 1 at 1-2, 6; doc. 15" }, { "docid": "19538016", "title": "", "text": "in determining that \"midazolam is highly likely to render a person unable to feel pain during an execution.\" Id., at ----, 135 S.Ct., at 2739. Second, the Court held that the petitioners had failed to satisfy the novel requirement of pleading and proving a \"known and available alternative\" method of execution. Id ., at ----, 135 S.Ct., at 2739. Post-Glossip, in order to prevail in an Eighth Amendment challenge to a State's method of execution, prisoners first must prove the State's current method \"entails a substantial risk of severe pain,\" id ., at ----, 135 S.Ct., at 2731, and second, must \"identify a known and available alternative method of execution that entails a lesser risk of pain,\" id ., at ----, 135 S.Ct., at 2731. II This case centers on whether Thomas Arthur has met these requirements with respect to Alabama's lethal-injection protocol. A Alabama adopted lethal injection as its default method of execution in 2002. Ala.Code § 15-18-82.1(a) (2011) ; see also Ex parte Borden, 60 So.3d 940, 941 (Ala.2007). The State's capital punishment statute delegates the task of prescribing the drugs necessary to compound a lethal injection to the Department of Corrections. § 15-18-82.1(f). Consistent with the practice in other States following the national shortage of sodium thiopental and pentobarbital, the department has adopted a protocol involving the same three drugs considered in Glossip . See Brooks v. Warden, 810 F.3d 812, 823 (C.A.11 2016). Perhaps anticipating constitutional challenges, Alabama's legislature enacted a contingency plan: The statute provides that \"[i]f electrocution or lethal injection is held to be unconstitutional ... all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution.\" § 15-18-82.1(c). B Thomas Douglas Arthur killed his paramour's husband in 1982. 840 F.3d 1268, 1272-1273 (C.A.11 2016). Over the next decade, two juries found Arthur guilty of murder, and each time, Arthur's conviction was overturned on appeal. Ibid . After a third trial in 1992, Arthur was convicted and sentenced to death. Ibid. Since then, Arthur has been scheduled to die on six separate occasions, and each time, his" }, { "docid": "10664131", "title": "", "text": "a sentence of death a 30-day window to choose electrocution as their method of execution, after which time they would be deemed to have waived the right to request a method other than lethal injection. Ala. Code § 15—18—82.1(b). Alabama’s method-of-execution statute further provides that: If electrocution or lethal injection is held to be unconstitutional by the Alabama Supreme Court under the Constitution of Alabama of 1901, or held to be unconstitutional by the United States Supreme Court under the United States Constitution, or if the United States Su preme Court declines to review any judgment holding a method of execution to be unconstitutional under the United States Constitution made by the Alabama Supreme Court or the United States Court of Appeals that has jurisdiction over Alabama, all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution. Id. § 15-18-82.1(c). The' Alabama statute does not prescribe any particular method of lethal injection; the legislature left it to the ADOC to devise the policies and procedures governing lethal injection executions, and exempted the ADOC from the Alabama Administrative Procedure Act in exercising that authority. Id § 15-18-82.1(g). The ADOC has used a three-drug lethal injection protocol since it began performing executions by lethal injection in 2002. See Brooks v. Warden, 810 F.3d 812, 823 (11th Cir.), cert. denied sub nom. Brooks v. Dunn, — U.S. -, 136 S.Ct. 979, 193 L.Ed.2d 813 (2016). Each drug in a three-drug protocol is intended to serve a specific purpose. The first drug should render the inmate unconscious to “ensure[] that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs”; the second drug is a paralytic agent that “inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration”; and the third drug “interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.” Baze v. Rees, 553 U.S. 35, 44, 128 S.Ct. 1520, 1527, 170 L.Ed.2d 420 (2008) (plurality opinion). The third drug in the ADOC protocol has always been" }, { "docid": "167715", "title": "", "text": "is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration.” Id. “Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.” Id. Since approximately 2010, the State of Oklahoma has been unable to obtain sodium thiopental, either commercially manufactured or compounded, for use in executions. Although the State of Oklahoma was able, for a short time, to obtain and utilize an alternative barbiturate, pento-barbital, during executions, that drug has also become unavailable to the State of Oklahoma for use in its executions. See Pavatt v. Jones, 627 F.3d 1336, 1337 (10th Cir.2010) (addressing challenge to State of Oklahoma’s planned use of pentobarbital). In approximately early 2014, the State of Oklahoma decided to substitute midazo-lam hydrochloride (midazolam), a sedative in the benzodiazepine family of drugs, for sodium thiopental and pentobarbital. In other words, the State of Oklahoma intended for midazolam to be utilized, as the first drug in its lethal injection protocol, to render an inmate unconscious prior to the injection of the second and third drugs. The Clayton Lockett Execution On April 29, 2014, inmate Clayton Lock-ett was the first Oklahoma state prisoner to be executed using midazolam as part of the lethal injection execution protocol. As described at length in the district court’s oral ruling, Lockett’s execution, though ultimately successful, was a procedural disaster. The execution team, over the course of nearly an hour, made at least twelve attempts to establish intravenous (IV) access to Lockett’s cardiovascular system. The team ultimately believed, incorrectly, that it had successfully established IV access through Lockett’s right femoral vein. And the team compounded this error by placing a hemostat on the IV line and covering the IV injection access point with a sheet. The execution team proceeded to inject Lockett with the three-drug protocol. In doing so, the team declared Lockett to be unconscious following the injection of the midazolam and prior to the injection of the vecuronium bromide and the potassium chloride. Shortly after the injection of part, but not all, of the potassium chloride, however," } ]

[ { "docid": "22751650", "title": "", "text": "Dorsainvil could make the showing necessary to invoke habeas relief, an issue for the district court. The coverage of the two provisions is not dissimilar. Indeed, in Davis the Court stated “[tjhat history makes clear that § 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.” Davis, 417 U.S. at 343, 94 S.Ct. at 2303; see also United States v. Anselmi 207 F.2d 312, 314 (3d Cir.1953) (“[Sjection 2255 ... afford[s] to a convicted federal prisoner a remedy which is the substantial equivalent of the conventional writ of habeas corpus.”) (emphasis added). We do not suggest that § 2255 would be “inadequate or ineffective” so as to enable a second petitioner to invoke § 2241 merely because that petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255. Such a holding would effectively eviscerate Congress’s intent in amending § 2255. However, allowing someone in DorsainvU’s unusual position — that of a prisoner who had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate, even when the government concedes that such a change should be applied retroactively — is hardly likely to undermine the gatekeeping provisions of § 2255. Nothing in our holding in this case represents a deviation from our prior precedent strictly construing the applicability of the safety-valve language in § 2255. See Application of Galante, 437 F.2d 1164, 1165-66 (3d Cir.1971) (per curiam) (unfavorable legal standards prevailing in circuit where sentencing court located does not render § 2255 remedy “inadequate or ineffective”); Litterio v. Parker, 369 F.2d 395, 396 (3d Cir.1966) (per curiam) (sentencing court’s prior denial of identical claims does not render § 2255 remedy “inadequate or ineffective”); Mucherino v. Blackwell, 340 F.2d 94, 95 (3d Cir.1965) (per curiam) (same); Crismond v. Blackwell, 333 F.2d 374, 377 & n. 6 (3d Cir.1964) (neither 2,000 mile distance between sentencing court and district of confinement, nor denial of relief by sentencing court, nor denial of leave to appeal from sentencing court in forma pauperis, render § 2255 remedy" } ]

[ { "docid": "9281021", "title": "", "text": "2241 claim for relief by using the savings clause portal. See id. at 329-30. In analyzing Jones's claim, we set forth three elements that must be present for a petitioner to satisfy the savings clause: [Section] 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law. Jones , 226 F.3d at 333-34. Jones added, \"[C]ourts [allowing § 2241 review of Bailey claims] have focused on the more fundamental defect presented by a situation in which an individual is incarcerated for conduct that is not criminal but, through no fault of his own, has no source of redress.\" Id . at 333 n.3 (emphasis supplied). We then found that Jones satisfied all three elements above and granted his request to file a § 2241 petition via the savings clause. 2. Whether Jones Applies to Sentencing Here, in denying Appellant's savings clause request and dismissing his § 2241 Petition, the district court explained, In the present case, Petitioner does not challenge the legality of his conviction. Instead, he moves the Court for an order vacating his sentence that was enhanced based on the finding that he had a predication [sic] North Carolina felony drug conviction. Because Petitioner's challenge is confined to the legality of his sentence the § 2241 petition will be denied. J.A. 363 (citing Jones , 226 F.3d at 333-34 ). There is no doubt that Jones is still good law in this circuit, and the district court interpreted that decision narrowly. However, Appellant invites us to construe Jones more broadly to pertain to alleged sentencing errors. The Government concedes that Jones may be read to encompass \"certain serious sentencing errors,\" Gov't's" }, { "docid": "460776", "title": "", "text": "file a second or successive § 2255 petition. .The Supreme Court may yet hold that the Jones /Apprendi rule is to be retroactively applied to cases on collateral review. (This likely depends upon whether the Court considers the Jones /Apprendi rule procedural or substantive.) Until that time, any second or successive petition seeking retroactive application of Jones must be considered premature. . The caselaw has come from the courts of appeals in the context of determining when the savings clause should apply, mainly in the wake of Bailey. Troubled by the specter that the restrictions on second or successive petitions would prevent prisoners whose conduct had been rendered non-criminal as a result of Bailey's narrowing the definition of \"use” of a firearm in 18 U.S.C. § 924(c)(1), see Bailey, 516 U.S. at 150, 116 S.Ct. 501, four circuits have now established some standards, sparing to be sure, guiding the application of § 2255's savings clause. See Wofford, 177 F.3d at 1242-45; Davenport, 147 F.3d at 610-12; Triestman, 124 F.3d at 373-80; Dorsainvil, 119 F.3d at 248-52. This court, in a non-Bailey context, briefly commented on the \"savings clause” issue in Barrett. A petition under § 2255 cannot become \"inadequate or ineffective,” thus permitting the use of § 2241, merely because a petitioner cannot meet the AEDPA \"second or successive” requirements. Such a result would make Congress’s AEDPA amendment of § 2255 a meaningless gesture.... Such a reading of the savings clause would also recreate the serious structural problems that led Congress to enact § 2255 in the first place.... Yet the § 2255 savings clause, which has been interpreted to avoid constitutional questions about § 2255, must mean something. ... We agree with the [Seventh, Third, and Second circuits] that habeas corpus relief [under § 2241] remains available for federal prisoners in limited circumstances. Barrett, 178 F.3d at 50-52 (citations omitted). . In recent memory the Supreme Court has done this in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (holding that materiality is an element of the offense of making false statement to" }, { "docid": "22240875", "title": "", "text": "Wofford was decided, the Second, Third, and Seventh Circuits had all held that the savings clause permitted prisoners to claim actual innocence based on Bailey in a § 2241 petition, although each court relied on a different rationale. See id. at 1242-44. The panel in Wofford approved of the Seventh Circuit’s approach in In re Davenport, 147 F.3d 605 (7th Cir.1998), which held that when “a Supreme Court decision has changed the law of a circuit retroactively in such a way that a prisoner stands convicted for a nonexistent offense, and the prisoner had no reasonable opportunity for a judicial remedy of that fundamental defect before filing the § 2241 proceeding,” then the savings clause permitted the petition. See Wofford, 177 F.3d at 1244 (citing In re Davenport, 147 F.3d at 611). Wofford approved of the Davenport approach because it addressed and harmonized two serious concerns that are in some tension with one another. On the one hand, “the essential function of habeas corpus is to give a prisoner a reasonable opportunity to obtain a reliable judicial determination of the fundamental legality of his conviction and sentence,” and it may be necessary to apply the savings clause to some claims inadequately addressed in a first § 2255 motion in order to “satisfy the Constitution's Suspension Clause, U.S. Const, art. I, § 9, cl. 2.]” Id. (internal quotation marks omitted). On the other hand, letting the savings clause apply too broadly would eviscerate the statutory bar on second or successive motions, which was intended to limit most prisoners to one clean shot at postconviction relief. Id. (if “the § 2241 remedy is available whenever the AEDPA restrictions on second or successive motions bar a § 2255 motion,” then that “would nullify the [bar’s] limitations” (internal quotation marks omitted)). After all, the savings clause cannot simply mean that every § 2255 motion that appears to have been incorrectly decided based on subsequent Supreme Court precedent may be revisited through a § 2241 habeas petition; if it did, then the bar on second or successive motions would effectively be written out of the" }, { "docid": "22357129", "title": "", "text": "458, 461 (6th Cir.2001) (“The circumstances in which § 2255 is inadequate and ineffective are narrow, for to construe § 2241 relief much more liberally than § 2255 relief would defeat the purpose of the restrictions Congress placed on the filing of successive petitions for collateral relief.”); United States v. Barrett, 178 F.3d 34, 50 (1st Cir.1999) (“A petition under § 2255 cannot become ‘inadequate or ineffective,’ thus permitting the use of § 2241, merely because a petitioner cannot meet the AEDPA ‘second or successive’ requirements. Such a result would make Congress’s AEDPA amendment of § 2255 a meaningless gesture.”); In re Davenport, 147 F.3d 605, 608 (7th Cir.1998) (rejecting the argument that “when the new limitations [on second or successive motions] prevent the prisoner from obtaining relief under 2255, his remedy under that section is inadequate and he may turn to 2241,” with this explanation: “That can’t be right; it would nullify the limitations.”); Triestman v. United States, 124 F.3d 361, 376 (2d Cir.1997) (“If it were the case that any prisoner who is prevented from bringing a § 2255 petition could, without more, establish that § 2255 is ‘inadequate or ineffective’ ... then Congress would have accomplished nothing at all in its attempts — through statutes like the AED-PA — to place limits on federal collateral review.”). We join all of those other circuits in refusing to interpret the savings clause in a way that would drop the § 2255(h) bar on second and successive motions, defeat its purpose, and render it pointless. Fundamental canons of statutory construction support the conclusion that the generally worded and ambiguous savings clause, which was first enacted in 1947, cannot override the specifically worded and clear statutory bar on second or successive motions that was enacted as part of AEDPA in 1996. An ambiguous or general statutory provision enacted at an earlier time must yield to a specific and clear provision enacted at a later time. See Morton v. Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974) (“Where there is no clear intention otherwise, a specific statute" }, { "docid": "23101146", "title": "", "text": "(11th Cir.1999); accord Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.2001) (following Wofford); In re Davenport, 147 F.3d 605, 611 (7th Cir.1998). Moreover, in Love v. Menifee, 333 F.3d 69, 73 (2d Cir.2003), the Second Circuit held that “Section 2255 is ‘inadequate or ineffective,’ however, only when a ‘failure to allow for collateral review would raise serious constitutional questions’ ...” (quoting Triestman v. United States, 124 F.3d 361, 377 (2d Cir.1997)). These extraordinary limitations underscore the fact that “[t]he savings clause and habeas corpus writs ... exist in a delicate balance.” Reyes-Requena, 243 F.3d at 901 n. 19. Because “[s]ection 2255 is the primary collateral relief mechanism for federal prisoners,” caselaw is clear that “the savings clause cannot create a detour around § 2255.” Id.; see also Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.1999) (per curiam) (“the dismissal of a subsequent § 2255 motion pursuant to 28 U.S.C. § 2244(b) does not render federal habeas relief an ineffective or inadequate remedy.”). So, for example, § 2255(f) contains a one-year statute of limitation and § 2255(h) provides that a second or successive motion can only be filed if it is based on newly discovered evidence that would have resulted in a not guilty verdict or if it is based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Obviously, a prisoner’s inability to comply with these conditions does not render the remedy pursuant to § 2255 “inadequate or ineffective to test the legality of his detention.” See Love, 333 F.3d at 73 (Section 2255 is not “inadequate or ineffective” simply because “its gatekeeping provisions bar review of a petitioner’s claim.”). Otherwise, the substantive and procedural barriers contained in § 2255 would be rendered meaningless and “Congress would have accomplished nothing at all in its attempts — through statutes like AEDPA—to place limits on federal collateral review.” Triestman v. United States, 124 F.3d 361, 376 (2nd Cir.1997) (Calabresi, J.). Another reason for the extremely narrow construction of the savings clause is that it was originally" }, { "docid": "23101145", "title": "", "text": "States, No. 06-cv-6872 (C.D. Cal. Sept. 25, 2007). The three judges of the Ninth Circuit presumably did the same when they affirmed the denial of the writ of habeas corpus. See Alaimalo v. United States, 317 Fed.Appx. 619 (9th Cir.2008). Moreover, even in the absence of such unique circumstances, the inadequacy of the remedy afforded by § 2255 is not as clear cut as the majority suggests. First, the Court of Appeals for the Fifth, Seventh, and Eleventh Circuits have held that the so-called “escape-hatch clause” or “savings clause” of 28 U.S.C. § 2255(e) applies to a claim that was or could have been brought pursuant to § 2255 only when: 1) that claim is based on a retroactively applicable Supreme Court decision; 2) the holding of that Supreme Court decision establishes the petitioner was convicted for a nonexistent offense; and, 3) circuit law squarely foreclosed such a claim at the time it otherwise should have been raised in the petitioner’s trial, appeal, or first § 2255 motion. Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir.1999); accord Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.2001) (following Wofford); In re Davenport, 147 F.3d 605, 611 (7th Cir.1998). Moreover, in Love v. Menifee, 333 F.3d 69, 73 (2d Cir.2003), the Second Circuit held that “Section 2255 is ‘inadequate or ineffective,’ however, only when a ‘failure to allow for collateral review would raise serious constitutional questions’ ...” (quoting Triestman v. United States, 124 F.3d 361, 377 (2d Cir.1997)). These extraordinary limitations underscore the fact that “[t]he savings clause and habeas corpus writs ... exist in a delicate balance.” Reyes-Requena, 243 F.3d at 901 n. 19. Because “[s]ection 2255 is the primary collateral relief mechanism for federal prisoners,” caselaw is clear that “the savings clause cannot create a detour around § 2255.” Id.; see also Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.1999) (per curiam) (“the dismissal of a subsequent § 2255 motion pursuant to 28 U.S.C. § 2244(b) does not render federal habeas relief an ineffective or inadequate remedy.”). So, for example, § 2255(f) contains a one-year statute of" }, { "docid": "22182285", "title": "", "text": "ineffective” or analyzed its scope. A petition under § 2255 cannot become “inadequate or ineffective,” thus permitting the use of § 2241, merely because a petitioner cannot meet the AED-PA “second or successive” requirements. Such a result would make Congress’s AEDPA amendment of § 2255 a meaningless gesture. See, e.g., In re Davenport, 147 F.3d 605, 608 (7th Cir.1998) (“Congress did not change [the ‘inadequate or ineffective’] language when in the Antiterrorism Act it imposed limitations on the filing of successive 2255 motions. The retention of the old language opens the way to the argument that when the new limitations prevent the prisoner from obtaining relief under 2255, his remedy under that section is inadequate and he may turn to 2241. That can’t be right; it would nullify the limitations.”); Triestman v. United States, 124 F.3d 361, 376 (2d Cir.1997) (“If it were the case that any prisoner who is prevented from bringing a § 2255 petition could, without more, establish that § 2255 is ‘inadequate or ineffective,’ ... then Congress would have accomplished nothing at all in its attempts — through statutes like the AEDPA — to place limits on federal collateral review.”); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997) (stating that inadequacy or ineffectiveness cannot be established “merely because th[e] petitioner is unable to meet the stringent gatekeep-ing requirements of the amended § 2255,” because “[s]uch a holding would effectively eviscerate Congress’s intent in amending § 2255”); In re Vial, 115 F.3d 1192, 1194 n. 5 (4th Cir.1997) (en banc) (stating that § 2255 is not inadequate or ineffective simply “because an individual is procedurally barred from filing a § 2255 motion”). Such a reading of the savings clause would also recreate the serious structural problems that led Congress to enact § 2255 in the first place. See In re Hanserd, 123 F.3d 922, 925, 934. n. 19 (6th Cir.1997) (“If [petitioner] and similarly situated inmates proceed under habeas corpus [which must be brought in the district with jurisdiction over the custodian], ... courts located near large federal prisons will be inundated with such motions, and" }, { "docid": "1622385", "title": "", "text": "constitutional law made retroactive by the Supreme Court. See Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 2482, 150 L.Ed.2d 632 (2001). Although the Supreme Court has ruled that Bailey is to be retroactive, Bailey is a rule of statutory interpretation, not of constitutional law. See Bousley v. U.S., 523 U.S. 614, 620, 118 S.Ct. 1604, 1609-10, 140 L.Ed.2d 828 (1998). The savings clause of § 2255 provides that if the “remedy by motion is inadequate or ineffective to test the legality of his detention,” the prisoner may utilize § 2241 to collaterally attack the legality of his conviction or sentence. See 28 U.S.C. § 2255 ¶ 5. Varying standards have been adopted by the circuits for determining when § 2255 is “inadequate or ineffective.” See Reyes-Requena v. U.S., 243 F.3d 893, 903-04 (5th Cir.2001) (surveying cases). See also In re Jones, 226 F.3d 328, 333-34 (4th Cir.2000); Wofford v. Scott, 177 F.3d 1236, 1244 & n. 3 (11th Cir.1999); United States v. Barrett, 178 F.3d 34, 52 (1st Cir.1999); Triestman v. United States, 124 F.3d 361, 377 (2d Cir.1997); In re Dorsainvil, 119 F.3d at 251-52 (3d Cir.); cf. In re Hanserd, 123 F.3d 922, 929-30 (6th Cir.1997). Suffice it for the instant ease, the Seventh Circuit has explained that § 2255 “can fairly be termed inadequate when it is so configured as to deny a convicted defendant any opportunity for judicial rectification of so fundamental a defect in his conviction as having been imprisoned for a nonexistent offense.” In re Davenport, 147 F.3d 605, 611 (7th Cir.1998). The government states that this is just such a case. See Respondent’s Br. at 22-25; Respondent’s Supplemental Br. at 4, 6-7. Smith is actually innocent, having been convicted on the basis of an incorrect understanding of § 924(c), and § 2255 relief is unavailable to him. Smith may therefore file a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the district in which he is confined. See, e.g., In re Nwanze, 242 F.3d 521, 525 (3d Cir.2001); Lee v. Wetzel, 244 F.3d 370, 373 (5th" }, { "docid": "23203589", "title": "", "text": "As the majority notes, the Second, Third, Fourth, Fifth, and Seventh Circuits have all indicated that in limited circumstances § 2241 may be used to raise a Bailey claim where a petitioner had not had an opportunity to challenge a firearm conviction that should be set aside under Bailey. See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997); Triestman v. United States, 124 F.3d 361, 377-80 (2d Cir.1997); In re Davenport, 147 F.3d 605, 610 (7th Cir.1998); In re Jones, 226 F.3d 328, 333-34 (4th Cir.2000); Reyes-Requena v. United States, 243 F.3d 893, 904-06 (5th Cir.2001). In each of the cases cited, the prisoners filed a § 2255 petition for relief before the Bailey opinion had issued and when it would have been futile to challenge the “use” prong of the 924(c) firearm statute. These circuits stated that the issue could not be raised by a second petition for § 2255 relief based on Bailey, but that the prisoner could file for relief under the habeas corpus statute § 2241, because relief under § 2255 was not available. Here, while Abdullah sought § 2255 relief after Bailey, the circumstances were such that the actions of the district court and the district court’s clerk effectively denied Ab-dullah the opportunity to seek relief under § 2255. The rationale for allowing § 2241 relief in the eases (In re Dorsainvil, 119 F.3d at 251; Triestman, 124 F.3d at 377-80; In re Davenport, 147 F.3d at 610; In re Jones, 226 F.3d at 333-34; Reyes-Requena, 243 F.3d at 904-06) should apply to Abdullah’s situation. Abdullah did all that can be reasonably expected of a defendant, and the district court’s actions effectively foreclosed Abdullah, on purely procedural grounds, from the opportunity to present his claim. In this unusual case, petitioner should be allowed to seek relief in his § 2241 (habeas) petition. It is a complete miscarriage of justice for Abdullah to continue serving time in prison for a conviction that is invalid after Bailey. Accordingly, I would reverse the dismissal of the petition for habeas corpus and remand to the district court for" }, { "docid": "22546098", "title": "", "text": "corpus in the district of confinement pursuant to § 2241. It is beyond question that § 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision. See, e.g., Charles v. Chandler, 180 F.3d 753, 756 (6th Cir.1999) (per curiam); Vial, 115 F.3d at 1194 n. 5. A contrary rule would effectively nullify the gatekeeping provisions. See United States v. Barrett, 178 F.3d 34, 50 (1st Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1208, 145 L.Ed.2d 1110 (2000); In re Davenport, 147 F.3d 605, 608 (7th Cir.1998). Nevertheless, there must exist some circumstance in which resort to § 2241 would be permissible; otherwise, the savings clause itself would be meaningless. See Barrett, 178 F.3d at 51; Davenport, 147 F.3d at 608. Since the decision in Bailey and the enactment of the AEDPA, several circuit courts of appeals have addressed the question of whether § 2255 is inadequate or ineffective to test the legality of the detention of an individual who was convicted under an improper definition of the “use” prong of § 924(c)(1). These courts have uniformly concluded that § 2255 may be inadequate or ineffective in certain circumstances. See Davenport, 147 F.3d at 610-12; Triestman, 124 F.3d at 376-80; In re Dorsainvil, 119 F.3d 245, 251-52 (3d Cir. 1997). In each of these cases, the court has noted that the prisoner’s first § 2255 motion was filed prior to the decision in Bailey, at a time when it would have been futile to challenge the then-prevailing interpretation of the “use” prong of § 924(c)(1). These courts further have observed that Bailey establishes that a prisoner whose conviction rests on an improper definition of “use” is incarcerated for conduct that is not criminal, and that a Bailey claim is properly considered on collateral review. These courts have held that under these limited circumstances, § 2255 is inadequate to test the legality of the prisoner’s detention, and accordingly that the prisoner may file a habeas petition under § 2241. We agree with the rationale and holdings of these courts. Accordingly, we conclude that" }, { "docid": "9281020", "title": "", "text": "the requirements of the savings clause. See 226 F.3d at 329-30. Jones was convicted of four counts of using a firearm during a drug offense pursuant to 18 U.S.C. § 924(c)(1), based on a search of his apartment that uncovered crack cocaine, as well as four firearms found in a locked closet. See id . at 330. However, after Jones filed his first § 2255 motion, the Supreme Court decided Bailey v. United States , 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which rendered Jones's convictions invalid. See id . at 330. Specifically, Bailey held that the Government must prove active employment of a firearm in order to convict a defendant for using a firearm under § 924(c)(1). See id. (citing Bailey , 516 U.S. at 143, 116 S.Ct. 501 ). Therefore, Jones's conduct underlying his convictions was no longer illegal. See id . at 330, 334. Unable to file a second or successive § 2255 motion because Bailey was a statutory (not a constitutional) decision, Jones attempted to file a § 2241 claim for relief by using the savings clause portal. See id. at 329-30. In analyzing Jones's claim, we set forth three elements that must be present for a petitioner to satisfy the savings clause: [Section] 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law. Jones , 226 F.3d at 333-34. Jones added, \"[C]ourts [allowing § 2241 review of Bailey claims] have focused on the more fundamental defect presented by a situation in which an individual is incarcerated for conduct that is not criminal but, through no fault of his own, has no source of redress.\"" }, { "docid": "22085893", "title": "", "text": "§ 2241 habeas petition in the Seventh Circuit, where he was incarcerated, because § 2255 was “inadequate” in that circuit to resolve his invalid conviction claim, without expressly defining a savings clause test for the District of Columbia). But no circuit has interpreted the § 2255(e) savings clause to preclude a claim of actual innocence based on a new rule of substantive law subsequently announced by the Supreme Court. The majority obfuscates the fact that, regardless of the phraseology employed by the other circuit courts, the results are the same. Every court of appeals to reach the issue has held that § 2255(e)’s savings clause does permit habeas review of actual innocence claims brought in § 2241 petitions where a prisoner was foreclosed by circuit precedent from succeeding on his claim in an initial § 2255 petition, and I would do so as well. Any implication by the majority that it is not creating a circuit split by interpreting § 2255(e) contrary to all the other circuits, see maj. op. at 594-96, is simply incorrect. B. The majority posits that the “circuit foreclosure” approach taken by other circuits is “untethered from the plain language the savings clause,” maj. op. at 591— 92, and “disregardfs]” other provisions of AEDPA specifying situations in which a prisoner may bring a collateral attack without resorting to § 2255(e)’s savings clause, see, e.g., id. at 591-92. Neither criticism is persuasive. The majority’s interpretation of the “plain language” of § 2255(e)’s savings clause stands alone. Our sister circuits recognize what the majority here does not: the fundamental purpose of habeas corpus and collateral review — even post-AED-PA — is to afford a prisoner a “reasonable opportunity to obtain a reliable judicial determination of the fundamental legality of his conviction and sentence,” In re Davenport, 147 F.3d at 609 (emphasis added), and the text of the savings clause must be interpreted in view of this purpose, id. Against that measure, the § 2255 remedy necessarily is “inadequate and ineffective” when a petitioner is foreclosed by circuit precedent from succeeding on a claim that he has been convicted" }, { "docid": "22546097", "title": "", "text": "afford federal prisoners a remedy identical in scope to federal habeas corpus”); Hayman, 342 U.S. at 219, 72 S.Ct. 263 (“Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners’ rights of collateral attack upon their convictions.”). Indeed, when § 2255 proves “inadequate or ineffective to test the legality of ... detention,” a federal prisoner may seek a writ of habeas corpus pursuant to § 2241. 28 U.S.C.A. § 2255. Jones seeks to invoke this “savings clause” as a means of presenting his Bailey claim to a district court. He maintains that the gatekeeping provisions — which concededly bar him from presenting his Bailey claim in a second or successive § 2255 motion — render § 2255 “inadequate or ineffective.” We conclude that in a limited number of circumstances, like those presented here, § 2255 as amended by the AEDPA is inadequate or ineffective to test the legality of the detention of a federal prisoner. In such cases, the prisoner may file a petition for a writ of habe-as corpus in the district of confinement pursuant to § 2241. It is beyond question that § 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision. See, e.g., Charles v. Chandler, 180 F.3d 753, 756 (6th Cir.1999) (per curiam); Vial, 115 F.3d at 1194 n. 5. A contrary rule would effectively nullify the gatekeeping provisions. See United States v. Barrett, 178 F.3d 34, 50 (1st Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1208, 145 L.Ed.2d 1110 (2000); In re Davenport, 147 F.3d 605, 608 (7th Cir.1998). Nevertheless, there must exist some circumstance in which resort to § 2241 would be permissible; otherwise, the savings clause itself would be meaningless. See Barrett, 178 F.3d at 51; Davenport, 147 F.3d at 608. Since the decision in Bailey and the enactment of the AEDPA, several circuit courts of appeals have addressed the question of whether § 2255 is inadequate or ineffective to test the legality of the detention of an individual who was convicted under an improper definition of" }, { "docid": "22240874", "title": "", "text": "challenges to his sentencing. See 177 F.3d at 1237-38. After several failed attempts at obtaining certification to file a second § 2255 motion, Wofford filed a petition for a writ of habeas corpus pursuant to § 2241, arguing that the savings clause allowed him to pursue his sentencing arguments because § 2255 foreclosed any other avenue for raising those claims. Id. at 1238. To divine the meaning of the savings clause, the panel in Wofford canvassed the decisions of our sister circuits, several of which had permitted § 2241 petitions via the savings clause in the wake of the Su preme Court’s decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). See Wofford, 177 F.3d at 1242-45. In Bailey, the Supreme Court had restricted the meaning of a federal criminal statute, 18 U.S.C. § 924(c)(1), which meant that some prisoners, who were convicted under the broader interpretation of that statute, were then imprisoned for conduct the law no longer rendered criminal. See id. at 1242. By the time Wofford was decided, the Second, Third, and Seventh Circuits had all held that the savings clause permitted prisoners to claim actual innocence based on Bailey in a § 2241 petition, although each court relied on a different rationale. See id. at 1242-44. The panel in Wofford approved of the Seventh Circuit’s approach in In re Davenport, 147 F.3d 605 (7th Cir.1998), which held that when “a Supreme Court decision has changed the law of a circuit retroactively in such a way that a prisoner stands convicted for a nonexistent offense, and the prisoner had no reasonable opportunity for a judicial remedy of that fundamental defect before filing the § 2241 proceeding,” then the savings clause permitted the petition. See Wofford, 177 F.3d at 1244 (citing In re Davenport, 147 F.3d at 611). Wofford approved of the Davenport approach because it addressed and harmonized two serious concerns that are in some tension with one another. On the one hand, “the essential function of habeas corpus is to give a prisoner a reasonable opportunity to obtain a" }, { "docid": "22546076", "title": "", "text": "relief is inadequate or ineffective. See Caravalho, 177 F.3d at 1179 (“[W]e agree with the district court that the mere fact Caravalho is precluded from filing a second § 2255 petition does not establish that the remedy in § 2255 is inadequate.”); Triestman v. United States, 124 F.3d 361, 376 (2d Cir.1997) (noting that section 2255’s substantive and proce dural barriers by themselves do not.establish that section 2255 is inadequate or ineffective). Similarly, a section 2255 motion “cannot become ‘inadequate or ineffective,’ thus permitting the use of [section] 2241, merely because a petitioner cannot meet the AEDPA ‘second or successive’ requirements.” United States v. Barrett, 178 F.3d 34, 50 (1st Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 1208, 145 L.Ed.2d 1110 (2000); see also Tolliver, 211 F.3d at 878; In re Davenport, 147 F.3d 605, 608 (7th Cir.1998); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997). To hold otherwise would flout Congress’s obvious intent to give meaning to these procedural requirements. A ruling that the section 2255 remedy was inadequate or ineffective, such that a petitioner could invoke section 2241, simply because the petitioner’s prior section 2255 motion was unsuccessful, or barred, or because he could not file another motion, would render those procedural requirements a nullity and defy Congress’s clear attempt to limit successive habeas petitions. Other circuits have indicated that a defendant may invoke the “savings clause” exception only when the Constitution demands it, or where otherwise Congress would violate the Suspension Clause by imposing a conviction or- sentence without allowing for section 2241 relief. See In re Davenport, 147 F.3d at 609 (noting that section 2241 relief may. be available to challenge a conviction or sentence in order that the prisoner “cannot complain that the limitations in [section] 2255 suspended whatever constitutional right he might have had, under the suspension clause or conceivably under the due process clause, to be allowed to seek habeas corpus”). Cf. Swain v. Pressley, 430 U.S. 372, 97 S.Ct. 1224, 1229-30, 51 L.Ed.2d 411 (1977) (presence of similar “savings clause” in District of Columbia analogue to section 2255 defeats Suspension" }, { "docid": "22425653", "title": "", "text": "and set the drug charge for a new trial. Maryland Maryprosecutors ultimately decided not to retry the case. C. In light of Judge Missouri’s order, the Maryland federal district court granted Poole’s § 2241 motion. In doing so, the court first found jurisdiction over the petition, reasoning that since the Kentucky district court denied Poole relief, “if this Court denies Poole’s Section 2241 petition on jurisdictional grounds, it would foreclose the possibility of any court considering the petition on its merits.” Poole v. Dotson, 469 F.Supp.2d 329, 333 (D.Md.2007). Thus, “[i]n an effort to avoid such a patently unfair result,” the court found its exercise of jurisdiction proper. Id. The court next considered the applicability of the savings clause of § 2255. It recognized that this court has found the clause to “appl[y] in only very limited circumstances.” Id. The district court properly cited the controlling test in this circuit: [Section] 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner’s direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law. In re Jones, 226 F.3d at 333-34. The district court concluded that though “Poole cannot satisfy the exact standard announced in Jones [,] ... the rationale behind the Jones decision is favorably applicable to Poole’s situation.” Poole v. Dotson, 469 F.Supp.2d at 335. The district court read Jones to stand more generally for the proposition that a “fundamental defect” occurs when “an individual is incarcerated for conduct that is not criminal, but through no fault of his own, has no source of redress.” Jones, 226 F.3d at 333 n. 3 (explaining the rationale behind the comparable rule in our sister circuits). Because the district court found as a fact that Poole" }, { "docid": "22085894", "title": "", "text": "B. The majority posits that the “circuit foreclosure” approach taken by other circuits is “untethered from the plain language the savings clause,” maj. op. at 591— 92, and “disregardfs]” other provisions of AEDPA specifying situations in which a prisoner may bring a collateral attack without resorting to § 2255(e)’s savings clause, see, e.g., id. at 591-92. Neither criticism is persuasive. The majority’s interpretation of the “plain language” of § 2255(e)’s savings clause stands alone. Our sister circuits recognize what the majority here does not: the fundamental purpose of habeas corpus and collateral review — even post-AED-PA — is to afford a prisoner a “reasonable opportunity to obtain a reliable judicial determination of the fundamental legality of his conviction and sentence,” In re Davenport, 147 F.3d at 609 (emphasis added), and the text of the savings clause must be interpreted in view of this purpose, id. Against that measure, the § 2255 remedy necessarily is “inadequate and ineffective” when a petitioner is foreclosed by circuit precedent from succeeding on a claim that he has been convicted and imprisoned for a non-existent offense. See, e.g., id. at 609- 11; Triestman, 124 F.3d at 373-77; In re Dorsainvil, 119 F.3d at 248-52; ReyesRequena, 243 F.3d at 903-04 (adopting reasoning of earlier cases); In re Jones, 226 F.3d at 333-34 (similar). The defect in the § 2255 remedy is not that it fails to guarantee any particular “outcome or relief,” maj. op. at 585, or that it fails to afford “multiple opportunities to test a conviction or sentence,” id. at 585. The defect is that, as a result of erroneous circuit precedent directly on point, the § 2255 remedy failed to provide a prisoner with even one meaningful opportunity to raise his claim of actual innocence. The notion that an actually innocent prisoner can adequately and effectively “test” the legality of his conviction when he has no legal basis in his circuit for doing so cannot be squared with this central purpose of habeas review or the plain language of the savings clause. Despite the majority’s claims to the contrary, the fact that AEDPA" }, { "docid": "22674166", "title": "", "text": "legality of a conviction when: (1) at the time of the conviction, settled law of the circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner’s direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.” Jones, 226 F.3d at 333-34. . \"A federal prisoner should be permitted to seek habeas corpus relief only if he had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first 2255 motion.” Davenport, 147 F.3d at 611. This is subject to three qualifications: (1) \"[T]he change of law has to have been made retroactive by the Supreme Court.” Id. (2) ”[I]t must be a change that eludes the permission in section 2255 for successive motions.” Id. (3) \" '[Cjhange in law’ is not to be equated to a difference between the law in the circuit in which the prisoner was sentenced and the law in the circuit in which he was incarcerated.” Id. at 612. . See infra note 28. . \"A [federal] prisoner barred by res judicata would seem as a consequence to have an 'inadequate or ineffective’ remedy under § 2255 and thus be entitled to proceed in federal habeas corpus.” Hanserd, 123 F.3d at 930 (alteration in original) (internal quotations omitted) (quoting in parenthetical Sanders v. United States, 373 U.S. 1, 14-15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963)). . Section 2255’s savings clause is available for \"a prisoner who had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate.” Dorsainvil, 119 F.3d at 251. . The First Circuit panel did not resolve the meaning of the savings clause in the particular case, but noted that the \"savings clause has to be resorted to for ... statutory [claims] because Congress restricted" }, { "docid": "22182284", "title": "", "text": "with his § 2255 petition, we turn to his argument that the savings clause of § 2255 permits him to proceed under § 2241 as a means of seeking relief. See 28 U.S.C. § 2241 (stating that “[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions” under specified circumstances). We begin with the limitation on the use of § 2241 petitions by federal prisoners that is set forth in § 2255: An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to [§ 2255], shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. This circuit has not previously defined the phrase “inadequate or ineffective” or analyzed its scope. A petition under § 2255 cannot become “inadequate or ineffective,” thus permitting the use of § 2241, merely because a petitioner cannot meet the AED-PA “second or successive” requirements. Such a result would make Congress’s AEDPA amendment of § 2255 a meaningless gesture. See, e.g., In re Davenport, 147 F.3d 605, 608 (7th Cir.1998) (“Congress did not change [the ‘inadequate or ineffective’] language when in the Antiterrorism Act it imposed limitations on the filing of successive 2255 motions. The retention of the old language opens the way to the argument that when the new limitations prevent the prisoner from obtaining relief under 2255, his remedy under that section is inadequate and he may turn to 2241. That can’t be right; it would nullify the limitations.”); Triestman v. United States, 124 F.3d 361, 376 (2d Cir.1997) (“If it were the case that any prisoner who is prevented from bringing a § 2255 petition could, without more, establish that § 2255 is ‘inadequate or ineffective,’ ... then Congress would have accomplished nothing" }, { "docid": "22674165", "title": "", "text": "The savings clause and habeas corpus writs (e.g., § 2241) exist in a delicate balance. Section 2255 is the primary collateral relief mechanism for federal prisoners, and the savings clause cannot create a detour around § 2255 such that § 2255 is rendered a nullity. On the other hand, if Congress had not included the savings clause in § 2255, it is arguable that a problem would exist under the Suspension Clause. See U.S. Const, art. I, § 9, cl. 2 (\"The Privilege of the Writ of Habe-as Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”); cf. Swain v. Pressley, 430 U.S. 372, 381, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977) (stating that the \"substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus” in contravention of Article 1, § 9 of the Constitution). . \"§ 2255 is inadequate and ineffective to lest the legality of a conviction when: (1) at the time of the conviction, settled law of the circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner’s direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.” Jones, 226 F.3d at 333-34. . \"A federal prisoner should be permitted to seek habeas corpus relief only if he had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first 2255 motion.” Davenport, 147 F.3d at 611. This is subject to three qualifications: (1) \"[T]he change of law has to have been made retroactive by the Supreme Court.” Id. (2) ”[I]t must be a change that eludes the permission in section 2255 for successive motions.” Id. (3) \" '[Cjhange" } ]

[ { "docid": "23467158", "title": "", "text": "advises the person and, then, the federal government prosecutes the person.” Funches, 135 F.3d at 1407. As the district court observed, this court addressed • this question under circumstances similar to this case and concluded that the defense of entrapment by estoppel was not available in United States v. Hall, No. 93-6345, 1994 WL 408188 (6th Cir. Aug.3, 1994) (unpublished decision), and Tinsley v. United States, No. 95-5564, 1997 WL 63156 (6th Cir. Feb.12, 1997) (unpublished decision). The defendants in both Tinsley and Hall were charged under § 922(g) with being a felon in possession of a firearm based upon their prior state convictions. In Hall, we concluded that entrapment by estoppel was not a defense when a defendant is prosecuted in federal court for actions taken in reliance upon a state probation officer’s representations or advice. ■ Hall, 1994 WL 408188, at *3. Tinsley’s state conviction for manslaughter was vacated on appeal and later rein-statéd by the trial court. Based upon, the appellate court judgment, however, a state court dismissed a subsequent charge for being a persistent felony offender. Tins-ley was advised at that time, and later by a state parole officer, that he was not a convicted felon and could possess a firearm. After reviewing the applicable authority, this court followed the majority of courts and found that “the entrapment by estoppel defense is not available because the representations on which Tinsley relies were made by state, and not federal, officials.” Tinsley, 1997 WL 63156, at *6. See also United States v. Hunter, No. 99-2221, 2001 WL 128297 (6th Cir. Feb.9, 2001) (unpublished decision) (tribal officer’s issuance of hunting licenses not a defense to federal felon in possession charges under §§ 922(g)(1) & 924(a)); United States v. Waldroop, No. 99-5029, 2000 WL 302779 (6th Cir. Mar. 17, 2000) (unpublished decision) (state court judge’s advice that defendant could possess firearms for hunting was not a defense to federal firearms charges). On appeal, defendant attempts to distinguish our prior decisions by arguing that he relied upon “representations made by officials in a county sheriffs office entrusted with the responsibility of" } ]

[ { "docid": "2804245", "title": "", "text": "establish the defendants’ motive. We see no sign of undue prejudice. Though the defendants did not raise this issue during voir dire, the district court carefully questioned the jury to ensure there was no prejudice that might affect the jury’s impartiality. We see no abuse of discretion here. V. Entrapment by Estoppel Defendants contend they were denied a fair trial when the district court prevented them from presenting evidence relevant to, and failed to instruct the jury on, two “entrapment by estoppel” defenses. A. The affirmative defense of entrapment by estoppel has its roots in two Supreme Court decisions, Raley v. State of Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959) and Cox v. State of Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), reh’g denied, 380 U.S. 926, 85 S.Ct. 879, 13 L.Ed.2d 814 (1965), finding violations of due process. In Raley, defendants refused to answer questions of the Ohio Un-American Activities Commission after a state official erroneously informed them that they were protected under the state constitution’s privilege against self-incrimination. The defendants were subsequently held in contempt. The Supreme Court reversed, holding that the state may not “convict[ ] a citizen for exercising a privilege which the state clearly had told him was available to him,” for to do so “would be to sanction the most indefensible sort of entrapment.” Id. at 438, 79 S.Ct. at 1266. The Court applied the doctrine again in Cox, where it reversed state law convictions for picketing because a state official had granted defendants permission to picket. We have applied the entrapment by estoppel defense in only one prior decision, United States v. Pennsylvania Industrial Chemical Corp., 461 F.2d 468 (3d Cir.1972), modified and remanded, 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). In Pennsylvania Industrial, the defendant was charged with discharging pollution into the Monongahela River, in violation of the Rivers and Harbors Act, 33 U.S.C.' § 407. At trial, the defendant sought to present evidence that its allegedly criminal acts had been authorized by Army regulations and the federal government’s long-term interpretation" }, { "docid": "1441579", "title": "", "text": "rank. Moreover, Clegg, unlike Tallmadge, was operating far from the territory of the United States, in a place not obviously covered by American law. If Tallmadge was entitled to rely upon the representations of the gun dealer as a complete defense, we can hardly deny the same defense to Clegg. Whatever our disagreements may be with the court’s ruling in Tallmadge, see, e.g., id. at 775-82 (Kozinski, J., dissenting), it is the law of the circuit and we are bound to follow it. B. The district court denied the government’s motion under section 6(c) of CIPA to substitute non-classified information for the classified information Clegg proposed to introduce at trial. The district court found that the proposed substitution would decrease the reasonableness of Clegg’s belief that the government approved his activities. Having reviewed this information, we conclude that the district court did not abuse its discretion in denying the motion for substitution. Conclusion The judgment of the district court is AFFIRMED. SKOPIL, Circuit Judge, dissenting. I dissent from the majority’s holding that Clegg is entitled to assert a mistake of law defense to the charges of exporting firearms without a license. Generally, ignorance of the law or a mistake as to the law’s requirements cannot be a defense in a criminal prosecution. See United States v. International Minerals & Chemical Corp., 402 U.S. 558, 563, 91 S.Ct. 1697, 1700, 29 L.Ed.2d 178 (1971). An exception has been created to provide for the legitimate reliance on an official interpretation of law. See, e.g., Cox v. Louisiana, 379 U.S. 559, 571, 85 S.Ct. 476, 484, 13 L.Ed.2d 487 (1965) (due process prevents conviction of individual advised by police chief to protest across the street to avoid prosecution under statute prohibiting demonstrations “near” the courthouse); Raley v. Ohio, 360 U.S. 423, 425-26, 79 S.Ct. 1257, 1259-60, 3 L.Ed.2d 1344 (1959) (convictions violate due process where a state investigating commission assured witnesses they could invoke their privilege against self-incrimination but where court later denied them the privilege); United States v. Albertini, 830 F.2d 985, 989 (9th Cir.1987) (due process prohibits defendant’s conviction for activities" }, { "docid": "10332641", "title": "", "text": "to Reed’s statements following the Wil-sons’ trial. B. Reliance On Public Authority The court understands the government as challenging whether the defendants may assert the affirmative defense known as reliance on public authority or entrapment by estoppel, see, e.g., Cox v. Louisiana, 379 U.S. 559, 569-71, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); United States v. Rector, 111 F.3d 503, 505-07 (7th Cir.1997), overruled on other grounds by United States v. Wilson, 169 F.3d 418 (7th Cir.1999). This defense is “rarely available.” Rector, 111 F.3d at 506. In the Seventh Circuit, the reliance on public authority defense requires that: “the one misleading the defendant be an official of the [government]; that he actively mislead the defendant; and that the defendant’s reliance be actual and reasonable in light of the identity of the official, the point of law represented, and the substance of the misrepresentation.” Rector, 111 F.3d at 506 (quoting United States v. Howell, 37 F.3d 1197, 1204 (7th Cir.1994)). The government argues that the defense is unavailable because the defendants claim to have been misled by state or local officials, the defendants’ reliance was unreasonable, and they acted for a period of time before obtaining any advice from a public official. The first issue for the court to consider is whether the defense is available as a defense to general intent crimes, specific intent crimes, or both. At least one court has recognized that the defense “is independent of the element of intent.” United States v. Conley, 859 F.Supp. 909, 928 (W.D.Pa.1994). The Conley court held the defense was applicable to general intent crimes, specifically the offense of participating in an illegal gambling business in violation of 18 U.S.C. § 1955. Id. at 928-29. Dicta in the decision suggests that the defense is inapplicable to specific intent crimes. See id. at 929. This is so, the court explained, because subjective good faith is a complete defense to such crimes. Id. This court disagrees and concludes that the defense may be raised as against both general intent crimes and specific intent crimes. See, e.g., United States v. Ether idge, 932" }, { "docid": "23431723", "title": "", "text": "Cir.1984) (per curiam). We also reject Brebner’s contention that evidence of his reliance on several state and local law enforcement officials was sufficient to justify an entrapment by estoppel defense. Instead, we conclude that Brebner was not entitled to rely on any representations made by state or local officials because, unlike situations where estoppel has been upheld, these officials lacked the authority to bind the federal government to an erroneous interpretation of federal law. In Tallmadge, for example, the misrepresentations were ‘made by federally licensed firearms dealers who, because of their affirmative duty to determine the lawfulness of the transaction, were acknowledged to be federal agents upon whom the court held purchasers had a right to rely. 829 F.2d at 774. Likewise in Clegg, we held that the defendant had the right to rely on American military officials who misrepresented the lawfulness of transporting firearms because they were “officials of the highest rank.” 846 F.2d at 1224. Moreover, the three Supreme Court cases relied on by the Tallmadge court in upholding the validity of the entrapment by estoppel defense each involved affirmative misleading on the part of officials duly authorized to render advice as to the legality of the conduct at issue. Thus, in Raley, the chairman of a state commission erroneously advised testifying witnesses that they had a state constitutional privilege against self-incrimination when invoking such a right was, at the time, actually a violation of state law. See Tallmadge, 829 F.2d at 773 (citing Raley, 360 U.S. at 425, 438-39, 79 S.Ct. at 1259, 1266-67). Likewise in Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476,13 L.Ed.2d 487 (1965), demonstrators who were granted permission by the chief of police to picket across the street from a courthouse were later arrested for refusing to comply with a sheriff’s order to disperse. See id. (citing Cox, 379 U.S. at 569-70, 85 S.Ct. at 483). Finally, in United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973), the Court “held that it was error to deny a corporate defendant the right to present evidence" }, { "docid": "7922227", "title": "", "text": "the essential points are covered by the instructions given. United States v. Scott, 19 F.3d 1238, 1245 (7th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 163, 130 L.Ed.2d 101 (1994). In this case the one “entrapment by estop-pel” defense instruction that set forth the elements of that defense, Instruction 8A, stated that Tabordon was a federal official by virtue of his federal firearms license. The government submits that the instruction was an incorrect statement of the law because Tabordon was not a federal official. Entrapment by estoppel, grounded in the Due Process Clause of the Fifth Amendment, is a defense that is rarely available. In essence, it applies when, acting with actual or apparent authority, a government official affirmatively assures the defendant that certain conduct is legal and the defendant reasonably believes that official. United States v. Austin, 915 F.2d 363, 366 (8th Cir.1990), cert. denied, 499 U.S. 977, 111 S.Ct. 1626, 113 L.Ed.2d 722 (1991). The Supreme Court first recognized this defense in Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), in which the Court reversed state law contempt convictions of those who refused to answer questions because they relied on an erroneous statement by a state official that they were protected by the self-incrimination clause of the state constitution. The Court continued to apply the doctrine in Cox v. Louisiana, 379 U.S. 559, 568-69, 85 S.Ct. 476, 482-83, 13 L.Ed.2d 487 (1965), in which the Court again reversed the defendants’ state law convictions for picketing across from the courthouse because a responsible state official had permitted the picketing. The common thread in the case-law applying the defense is an affirmative misrepresentation of the law by a government official, reasonable reliance, and action upon that misrepresentation by a defendant. When the defense is applicable, it prevents the government from punishing one who reasonably followed the misstatement of one of its own officials. To allow such punishment “would be to sanction the most indefensible sort of entrapment by the State — convicting a citizen for exercising a privilege which the State clearly had told" }, { "docid": "15297661", "title": "", "text": "opinion received. The Supreme Court first addressed the defense of entrapment by estoppel, though it has never used that terminology, in Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959). In Raley, three people were called before the Ohio Un-Ameri-can Activities Commission and questioned about their activities and involvement with the Communist party. The commission chairman informed the witnesses that they could decline to answer the commission’s questions by invoking their Fifth Amendment right against' self-incrimination, which they did. However, after their ap pearance before the commission, the witnesses were successfully prosecuted for contempt under a state immunity statute that compelled the witnesses to answer the commission’s questions. The Supreme Court held that the convictions violated due process and that the advice given by the commission was a defense to the contempt charge. In allowing the defense, the Court emphasized that the advising official “clearly appeared to be the agent of the State in a position to give such assurances ...” Id. at 437, 79 S.Ct. 1257 (emphasis added). In Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), the Court again applied criminal estoppel to overturn a conviction under a state statute that prohibited demonstrating “near” a courthouse. In Cox, the appellants were protesting the arrest of several students who had been picketing segregated lunch counters. The defendant, a leader of the demonstration, was advised by police that the group must keep to the west side of the street away from the courthouse. The defendant was subsequently arrested and convicted for demonstrating in that area. The Supreme Court reversed the conviction and, quoting Raley, stated that the conviction was “ ‘an indefensible sort of entrapment by the State.’ ” Id. at 571, 85 S.Ct. 476. The Court found that the lack of specificity in stating what was “near” the courthouse, while not rendering the statute void for vagueness, “foresees a degree of on-the-spot administrative interpretation by officials charged with responsibility for administering and enforcing it.” Id. at 568, 85 S.Ct. 476 (emphasis added) (further emphasizing that the defendant was misled by" }, { "docid": "2810642", "title": "", "text": "so long as the defendant reasonably believes that government agents authorized him to commit the criminal act. United States v. Abcasis, 45 F.3d 39, 42 (2d Cir.1995). In United States v. Corso, this Court stated that “[t]o invoke the entrapment by estop-pel defense, the defendant must show that he relied on the official’s statement and that his reliance was reasonable in that a person sincerely desirous of obeying the law would have accepted the information as true ....” 20 F.3d 521, 528 (2d Cir. 1994) (quoting United States v. Weitzenhoff, 1 F.3d 1523, 1534 (9th Cir.1993)). The entrapment by estoppel defense does not negate any of the statutory elements of a crime. Rather, the entrapment by es-toppel defense recognizes that even though the government may have proved all of the elements of a crime, to convict the defendant for acts committed in reasonable reliance on a government official’s statement would violate due process or fundamental fairness. Cox v. Louisiana, 379 U.S. 559, 571, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); Abcasis, 45 F.3d at 44 (stating that entrapment by estoppel doctrine “depends on the unfairness of prosecuting one who has been led by the conduct of government agents to believe his acts were authorized”). A number of factors clearly demonstrate that the second portion of the jury charge at issue is an instruction on the entrapment by estoppel defense, not ah incorporation of “reasonableness” into § 1542’s intent requirement. First, the language of the jury charge restates in almost identical terms Corso’s articulation of the requirements of the entrapment by estoppel defense. Second, an examination of the colloquy concerning the jury charge also demonstrates that the charge involved the entrapment by estoppel defense. The parties discussed this language with the district court at length with the explicit intent of properly articulating the charge on the entrapment by estoppel defense. Moreover, the district court judge referred specifically to the Corso standard for establishing entrapment by estoppel in explaining the second portion of the jury charge, noting that “I purposely made it an objective standard, I didn’t make it for this defendant" }, { "docid": "13077742", "title": "", "text": "in making objections allows for clarity to ensure that the district court may correct any errors and that the record is entirely clear on what matters the party is preserving for review. The judge also gave Cooper reasonable notice of what was required to preserve the objection, and after the jury was charged, the judge asked whether Blood had objections. Despite this, not only did Blood fail to provide a specific objection to the entrapment-by-estoppel instruction after the charge, but he also failed to make even a general objection incorporating Critten-den’s objections. Because Blood did not preserve this objection, we will review it only for plain error. See Fed.R.Crim.P. 52(b); See Reese, 568 F.2d at 1251. The entrapment-by-estoppel defense “ ‘rests on a due process theory ... focus[ing] on the conduct of the government officials rather than on a defendant’s state of mind.’ ” See United States v. Batterjee, 361 F.3d 1210, 1218 (9th Cir.2004) (quoting United States v. Brebner, 951 F.2d 1017, 1025 (9th Cir.1991)); see also Cox v. Louisiana, 379 U.S. 559, 571, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); United States v. Levin, 973 F.2d 463, 468 (6th Cir.1992). Whereas one of the elements of an entrapment defense is “ ‘the absence of predisposition on the part of the defendant,’ United States v. Davis, 36 F.3d 1424, 1430 (9th Cir.1994), a defendant’s pre-disposition to commit an offense is not at issue in an entrapment by estoppel defense.” Batterjee, 361 F.3d at 1218 (collecting cases). Given this distinction between the theories of these two defenses, the district court’s muddling of the elements of entrapment and entrapment by estoppel could have made the charge viewed as a whole “confusing, misleading, or prejudicial,” Pensyl, 387 F.3d at 458, as it could have erroneously led the jurors to believe that the defense of entrapment by estoppel required the Defendants to present evidence that they were not predisposed to commit the crime in question. Even if the claim had been validly preserved, however, we would not upset the conviction on this basis because the error was of no consequence. The entrapment-by-estoppel defense" }, { "docid": "10436306", "title": "", "text": "1006 (1st Cir.1992), we did not reach a claim that issuance of a state firearms license constituted entrapment by estoppel, holding that it had been waived by failure to raise the issue prior to entering a conditional plea. Although we have not decided the issue presented here, three other circuit courts have. In United States v. Bruscantini, 761 F.2d 640 (11th Cir.1985), a defendant made an estoppel argument based on advice from a state judge, who had accepted his plea of nolo contendere in an earlier case, that he was not a convicted felon. He invoked Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) and Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959). Chief Judge Godbold, writing for the court, observed that both Cox and Raley involved state officials’ interpretations of state law leading to state convictions, and commented: Where, however, the government that advises and the government that prosecutes are not the same, the entrapment problem is different.... [I]f one benefit of the estoppel defense is that it encourages government officials to better know and articulate the law, that benefit is not present where application of the defense would penalize the wrong government—the government that prosecuted appellant rather than the government that mistakenly and misleadingly interpreted the law. 761 F.2d at 642. The Fourth Circuit applied this reasoning in a case where the estoppel defense in a federal firearms prosecution was based on a state trial judge’s advice that a defendant could use firearms for hunting purposes. United States v. Etheridge, 932 F.2d 318, 320 (4th Cir.1991). And in United States v. Brebner, 951 F.2d 1017 (9th Cir.1991), the Ninth Circuit dealt with an estoppel defense based on conversations defendant had with two federally licensed firearms dealers in which he expressed his erroneous view that the dismissal of his prior state felony convictions made it legal for him to possess firearms, and alleged similar misstatements by state and local officials. The court held, first, that although perhaps both dealers should have made further inquiries as to the legality of" }, { "docid": "21117857", "title": "", "text": "483-84, 13 L.Ed.2d 487 (1965). This principle, first recognized in Raley, has come to be known as entrapment by estoppel. See United States v. Clark, 986 F.2d 65, 69 (4th Cir.1993); United States v. Howell, 37 F.3d 1197, 1204 (7th Cir.1994). A criminal defendant may assert an entrapment-by-estoppel defense when the government affirmatively assures him that certain conduct is lawful, the defendant thereafter engages in the conduct in reasonable reliance on those assurances, and a criminal prosecution based upon the conduct ensues. See Raley, 360 U.S. at 438-39, 79 S.Ct. at 1266-67; Clark, 986 F.2d at 69; Howell, 37 F.3d at 1204. Aquino-Chacon argues that Form 1-294 invited the charged conduct by implying that it was permissible for him to return to the United States without the express approval of the Attorney General as long as he did so more than five years after' his deportation. As a result, he contends, his prosecution for engaging in conduct that the government erroneously conveyed to him was lawful offends the Due Process Clause of the Fifth Amendment. We disagree. In order to assert an entrapment-by-estoppel defense, Aquino-Chacon must do more than merely show that the government made “vague or even contradictory” statements. Raley, 360 U.S. at 438, 79 S.Ct. at 1266. Rather, he must demonstrate that there was “active misleading” in the sense that the government actually told him that the proscribed conduct was permissible. Id; see Cox, 379 U.S. at 570-71, 85 S.Ct. at 483-84 (holding that the defendant’s conviction for unlawful assembly offended the Due Process Clause when state authorities who instructed demonstrators to assemble in a particular location later prosecuted the defendant on the basis that a demonstration in that location violated the law); Clark, 986 F.2d at 69 (making clear that entrapment by estoppel applies “when a government official tells the defendant that certain activity is legal”); see also Howell, 37 F.3d at 1204 (explaining that entrapment by estoppel applies “when, acting with actual or apparent authority, a government official affirmatively assures the defendant that certain conduct is legal”); United States v. Trevino-Martinez, 86 F.3d 65, 69 (5th" }, { "docid": "16878830", "title": "", "text": "under 18 U.S.C. § 922(g), the testimony of both Agent Nowd and the defendant concerning their 1987 meeting was properly excluded as immaterial. The defendant’s due process theory, offered as an affirmative defense, presents a more complex question, requiring us to focus on the conduct of the government official rather than on the state of mind of the defendant. In effect, Smith argues that Agent Nowd’s “outrageous conduct” in authorizing Smith’s possession of firearms in 1987 should preclude Smith’s prosecution for possessing guns in 1989. To prosecute him for such possession, he insists, would violate his due process rights under the United States Constitution. There are two due process concepts to which defendant’s arguments might be germane. The first, sometimes labelled “entrapment by estoppel,” see, e.g., United States v. Tallmadge, 829 F.2d 767, 773 (9th Cir.1987), is a theory that several circuits and the Supreme Court have recognized as applicable under certain, relatively narrow, circumstances. See Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959); United States v. Hedges, 912 F.2d 1397 (11th Cir.1990); United States v. Clegg, 846 F.2d 1221 (9th Cir.1988). Entrapment by estop-pel has been held to apply when an official assures a defendant that certain conduct is legal, and the defendant reasonably relies on that advice and continues or initiates the conduct. The underlying concept is that, under certain circumstances, an individual may be entitled reasonably to rely on the representations of an authorized government official as to the legality of his conduct. Unlike defendant’s previous contention that the agent’s advice caused him to lack criminal intent, entrapment by estop-pel rests upon principles of fairness, not defendant’s mental state. The defense may, therefore, be raised in cases like this in which the offense has no requirement of specific intent. See United States v. Hedges, 912 F.2d at 1405. The defense of entrapment by estoppel is predicated upon fundamental notions of fairness embodied in the Fifth Amendment’s due process clause. Whether the prosecution of a defendant violates his due process" }, { "docid": "21117856", "title": "", "text": "notice provided by the statute is sufficient to satisfy the demands of due process. And, because “the law [was] definite and knowable,” Aquino-Chacon was presumed to know the law. Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 609, 112 L.Ed.2d 617 (1991). Instead .of grounding his due process challenge on lack of fair notice, however, Aquino-Chacon relies on Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), which established “ ‘a narrow exception to- the general principle that ignorance of the law is no defense.’ ” United States v. Etheridge, 932 F.2d 318, 321 (4th Cir.1991) (quoting United States v. Bruscantini, 761 F.2d 640, 642 (11th Cir.1985)). Raley held that the government may not “conviet[ ] a citizen for exercising a privilege which the State clearly had told him was available to him,” for to do so “would be to sanction the most indefensible sort of entrapment.” Raley, 360 U.S. at 438, 79 S.Ct. at 1266; see also Cox v. Louisiana, 379 U.S. 559, 570-71, 85 S.Ct. 476, 483-84, 13 L.Ed.2d 487 (1965). This principle, first recognized in Raley, has come to be known as entrapment by estoppel. See United States v. Clark, 986 F.2d 65, 69 (4th Cir.1993); United States v. Howell, 37 F.3d 1197, 1204 (7th Cir.1994). A criminal defendant may assert an entrapment-by-estoppel defense when the government affirmatively assures him that certain conduct is lawful, the defendant thereafter engages in the conduct in reasonable reliance on those assurances, and a criminal prosecution based upon the conduct ensues. See Raley, 360 U.S. at 438-39, 79 S.Ct. at 1266-67; Clark, 986 F.2d at 69; Howell, 37 F.3d at 1204. Aquino-Chacon argues that Form 1-294 invited the charged conduct by implying that it was permissible for him to return to the United States without the express approval of the Attorney General as long as he did so more than five years after' his deportation. As a result, he contends, his prosecution for engaging in conduct that the government erroneously conveyed to him was lawful offends the Due Process Clause of the Fifth Amendment." }, { "docid": "1441580", "title": "", "text": "to assert a mistake of law defense to the charges of exporting firearms without a license. Generally, ignorance of the law or a mistake as to the law’s requirements cannot be a defense in a criminal prosecution. See United States v. International Minerals & Chemical Corp., 402 U.S. 558, 563, 91 S.Ct. 1697, 1700, 29 L.Ed.2d 178 (1971). An exception has been created to provide for the legitimate reliance on an official interpretation of law. See, e.g., Cox v. Louisiana, 379 U.S. 559, 571, 85 S.Ct. 476, 484, 13 L.Ed.2d 487 (1965) (due process prevents conviction of individual advised by police chief to protest across the street to avoid prosecution under statute prohibiting demonstrations “near” the courthouse); Raley v. Ohio, 360 U.S. 423, 425-26, 79 S.Ct. 1257, 1259-60, 3 L.Ed.2d 1344 (1959) (convictions violate due process where a state investigating commission assured witnesses they could invoke their privilege against self-incrimination but where court later denied them the privilege); United States v. Albertini, 830 F.2d 985, 989 (9th Cir.1987) (due process prohibits defendant’s conviction for activities held to be lawful by court of appeals at least until the Supreme Court has granted certiorari). In each of these examples, it is clear that the actor actually relied on an official statement that certain conduct was not unlawful. Similarly, in United States v. Tallmadge, 829 F.2d 767, 774 (9th Cir.1987), we held that a purchaser of a gun could reasonably rely on the representations of a licensed firearms dealer who declared that the sale was lawful. We concluded that the conviction of someone misled by the affirmative statements of a government agent that certain conduct is lawful violates due process. Id. at 775. Nothing in my search of the record in this case discloses the requisite reliance on an official interpretation of the law. Even assuming that Clegg dealt with officials possessing the requisite authority to suspend the law, Clegg never alleges these officials authorized the unlawful conduct or told him that his activities were lawful. In fact, Clegg admits that he was involved in gun running actitivies before he ever became acquainted" }, { "docid": "6427571", "title": "", "text": "unreasonable strategy given the posture of the case. Moreover, because Rector was not entitled to the entrapment by estoppel instruction, as discussed below, counsel could well have intentionally refrained from requesting such an instruction to avoid being directed not to raise the assertion that the police condoned the activity. In any event, under Strickland we need only address the question of whether, assuming counsel was ineffective, the ineffective assistance was prejudicial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, because it would not have been proper to give the instruction anyway, there was no prejudice. “Entrapment by estoppel” is an affirmative defense “that is rarely available.” United States v. Howell, 37 F.3d 1197, 1204 (7th Cir.1994) (discussing history and application of “entrapment by estoppel” defense), cert. denied, — U.S. -, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995). This defense requires that “the one misleading the defendant be an official of the state; that he actively mislead the defendant; and that the defendant’s reliance be actual and reasonable in light of the identity of the agent, the point of law represented, and the substance of the misrepresentation.” Id. (and cases cited therein at n. 9). In this case, Rector alleges a town marshal advised him that federal law allowed him to own firearms if used for hunting or target practice. Even if this questionable claim were true, Rector himself concedes that this court would be going against the weight of authority if it ruled that statements by state law enforcement officials may constitute a defense of entrapment by estop-pel to federal charges. He argues that the key is whether from Rector’s perspective the town marshal had authority to render interpretations on federal firearms law. What Rector says he thought about the marshal’s authority is not the test. See, e.g., Howell (reliance must be objectively reasonable). If it were, the more successfully a defendant presented himself as ill-educated or naive, the stronger would be his argument that he relied on advice from someone he (mistakenly) thought had authority to render such advice. This approach would entitle" }, { "docid": "11653256", "title": "", "text": "v. Pillado, 656 F.3d 754, 762-68 (7th Cir.2011). Kimani does not contend that he is “an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law”. Jacobson, 503 U.S. at 553-54, 112 S.Ct. 1535. Nor does he contend that he was induced to do something he preferred to avoid. “Entrapment by estoppel” is poorly named; it is among the justification defenses, rather than, as with simple entrapment, a means to curtail official misconduct. When a public official directs a person to perform an act, with assurance that the act is lawful under the circumstances, the person does not act with the intent required for conviction. So if a Secret Service agent asks an informant to sell some counterfeit bills to a person suspected of running a counterfeit-passing ring, the informant’s acts are justified, even though they otherwise could be described as the distribution of counterfeit currency. We have called this justification “entrapment by estoppel,” see United States v. Howell, 37 F.3d 1197, 1204 (7th Cir.1994), but the proposition is related to the rule that a person who asks the advice of counsel after providing complete disclosure, and then acts strictly in accord with the advice received, lacks the state of mind needed to support a conviction under many (though not all) criminal statutes, see United States v. Caputo, 517 F.3d 935, 942 (7th Cir.2008); United States v. Van Allen, 524 F.3d 814, 823 (7th Cir.2008), rather than to classic “entrapment” doctrine. Perhaps entrapment by estoppel should be renamed the official authorization defense. For current purposes, however, the name does not matter. Kimanid relies on three decisions that, he contends, give “entrapment by estoppel” constitutional status: Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); and United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). Yet none of these cases has anything to do with that doctrine. They deal instead with the principle that criminal statutes and" }, { "docid": "4499173", "title": "", "text": "acquit him if it found that he had relied on “misleading information furnished by the government and mistakenly thought his conduct was sanctioned by the government,” provided the jury found such reliance to be “reasonable and sincere.” This court has recently explained that a criminal defendant may be entitled to raise a defense of entrapment by estoppel only “when a government official or agent actively assures a defendant that certain conduct is legal and the defendant reasonably relies on that advice and continues or initiates the conduct.” United States v. Spires, 79 F.3d 464, 466 (5th Cir.1996). See also, United States v. Meraz-Valeta, 26 F.3d 992, 996 (10th Cir.1994) (government must mislead the defendant and the defendant must reasonably rely on this misrepresentation) (citing Cox v. Louisiana, 379 U.S. 559, 568-71, 85 S.Ct. 476, 482-84, 13 L.Ed.2d 487 (1965); Raley v. Ohio, 360 U.S. 423, 437-39, 79 S.Ct. 1257, 1265-67, 3 L.Ed.2d 1344 (1959)). Hence, the government must actively mislead the defendant by inducing him to rely on “an affirmative misrepresentation of the law by [the government official].” United States v. Howell, 37 F.3d 1197, 1204 (7th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995). In order for his reliance to be reasonable, the defendant must establish that “a person sincerely desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries.” United States v. Brebner, 951 F.2d 1017, 1024 (9th Cir.1991) (citations omitted). There is no evidence in the record to support this defense for Trevifio. He did not demonstrate that the American consulate affirmatively misrepresented as legal his at tempts to reenter this country; he was not actively misled by the government since the consulate did not assure Trevifio that his actions were proper. See, e.g., United States v. Clark, 546 F.2d 1130, 1135 (5th Cir.1977). Moreover, because Trevifio was not candid about his prior arrests and deportations, the consulate could not have actively misrepresented his attempts to reenter this country as legal; without that material information, the consulate was" }, { "docid": "10332640", "title": "", "text": "(7th Cir.1994) (holding evidence did not support giving of advice of counsel instruction where, among other things, “Ushijima [the attorney] testified that he was not an attorney for [the defendant]”); United States v. Carr, 740 F.2d 339, 347 (5th Cir.1984) (“For such a [advice of counsel] defense to be permitted, however, there must be at least some evidence that the attorney advised the defendant as his counsel”). Furthermore, as stated supra, the advice of counsel defense is available as a defense to specific intent crimes and is unavailable as a defense to general intent crimes. Ms. Strickland is charged with both types of crimes: the general intent crime of operating an illegal gambling business and the specific intent crimes of money laundering. Though the latter crime is alleged to have been committed through the date of the indictment, the indictment charges that the money laundering offenses were completed in February 1997. Reed’s opinion was not given until after the Wilsons’ acquittal on September 30, 1997. Thus, Ms. Strickland cannot claim advice of counsel with respect to Reed’s statements following the Wil-sons’ trial. B. Reliance On Public Authority The court understands the government as challenging whether the defendants may assert the affirmative defense known as reliance on public authority or entrapment by estoppel, see, e.g., Cox v. Louisiana, 379 U.S. 559, 569-71, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); United States v. Rector, 111 F.3d 503, 505-07 (7th Cir.1997), overruled on other grounds by United States v. Wilson, 169 F.3d 418 (7th Cir.1999). This defense is “rarely available.” Rector, 111 F.3d at 506. In the Seventh Circuit, the reliance on public authority defense requires that: “the one misleading the defendant be an official of the [government]; that he actively mislead the defendant; and that the defendant’s reliance be actual and reasonable in light of the identity of the official, the point of law represented, and the substance of the misrepresentation.” Rector, 111 F.3d at 506 (quoting United States v. Howell, 37 F.3d 1197, 1204 (7th Cir.1994)). The government argues that the defense is unavailable because the defendants claim to have been" }, { "docid": "6427570", "title": "", "text": "when his trial counsel failed to request a jury instruction on the defense of “entrapment by estoppel.” Rector’s counsel may well have intended to argue “entrapment by estoppel.” Rector testified and admitted the entire factual predicate for conviction, but also testified that he thought he was acting within the law because the town marshal purportedly had told him he could lawfully possess hunting and target guns. Indeed, his counsel told the jury during closing argument that Rector had taken the affirmative step of checking with law enforcement before engaging in the conduct with which he was charged. However, Rector’s counsel never submitted an entrapment by estoppel instruction and the court never so charged the jury. On this record we can only speculate what governed his counsel’s decision not to emphasize this rare defense. Perhaps counsel felt he was stuck with the admissions Rector made to the ATF agents on April 24, or perhaps counsel wanted Rector to concede most of the government’s case in order to humanize him. This would not have been a totally unreasonable strategy given the posture of the case. Moreover, because Rector was not entitled to the entrapment by estoppel instruction, as discussed below, counsel could well have intentionally refrained from requesting such an instruction to avoid being directed not to raise the assertion that the police condoned the activity. In any event, under Strickland we need only address the question of whether, assuming counsel was ineffective, the ineffective assistance was prejudicial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, because it would not have been proper to give the instruction anyway, there was no prejudice. “Entrapment by estoppel” is an affirmative defense “that is rarely available.” United States v. Howell, 37 F.3d 1197, 1204 (7th Cir.1994) (discussing history and application of “entrapment by estoppel” defense), cert. denied, — U.S. -, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995). This defense requires that “the one misleading the defendant be an official of the state; that he actively mislead the defendant; and that the defendant’s reliance be actual and reasonable in light" }, { "docid": "23431724", "title": "", "text": "entrapment by estoppel defense each involved affirmative misleading on the part of officials duly authorized to render advice as to the legality of the conduct at issue. Thus, in Raley, the chairman of a state commission erroneously advised testifying witnesses that they had a state constitutional privilege against self-incrimination when invoking such a right was, at the time, actually a violation of state law. See Tallmadge, 829 F.2d at 773 (citing Raley, 360 U.S. at 425, 438-39, 79 S.Ct. at 1259, 1266-67). Likewise in Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476,13 L.Ed.2d 487 (1965), demonstrators who were granted permission by the chief of police to picket across the street from a courthouse were later arrested for refusing to comply with a sheriff’s order to disperse. See id. (citing Cox, 379 U.S. at 569-70, 85 S.Ct. at 483). Finally, in United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973), the Court “held that it was error to deny a corporate defendant the right to present evidence that it had been affirmatively misled by the responsible administrative agency into believing that the law did not apply in this situation.” Id. at 774 (citing Pennsylvania Indus. Chem. Corp., 411 U.S. at 670-75, 93 S.Ct. at 1814-17). See also United States v. Evans, 712 F.Supp. 1435, 1442-43 (D.Mont.1989) (alleged BATF sanctioning of criminal conduct held to constitute valid defense to federal firearms offenses charged in indictment), aff'd, 928 F.2d 858 (9th Cir.1991). Thus, in asserting an entrapment by estoppel defense to charges of violating federal law, a defendant is required to show reliance either on a federal government official empowered to render the claimed erroneous advice, or on an authorized agent of the federal government who, like licensed firearms dealers, has been granted the authority from the federal government to render such advice. See United States v. Etheridge, 932 F.2d 318, 321 (4th Cir.1991) (estoppel defense to federal firearms charge rejected because based on advice of state trial judge rather than official of federal government) (citing United States v. Bruscantini, 761 F.2d 640, 641-42" }, { "docid": "10475175", "title": "", "text": "While the Court’s concern with vagueness, fair warning and the consistency of directives from apparently authoritative State sources is evident, the Court’s Due Process defense did not find lacking evidence of an implied ■ specific intent requirement. Rather, the Court found that the Commission had actively misled the defendants into committing the offense defined by the statute and the Ohio courts. The Opinion of Justice Clark prevailed on the issue upon which the Court was equally divided. One defendant’s conviction was based upon a question that the defendant was in fact directed to answer. Because the Defendant had been directed, rightly or wrongly, to answer the question, “there could be no entrapment and hence no lack of due process.” Id. at 445, 79 S.Ct. at 1270. Cox v. Louisiana The Supreme Court returned to the Due Process reliance on misleading government conduct defense in Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965). In that case, Cox had led a demonstration within sight and hearing of a courthouse— approximately 101 feet from the courthouse steps — to protest the arrest of numerous civil rights demonstrators. He appealed from his conviction in a bench trial under a Louisiana statute that prohibited picketing and parading “in or near” a state courthouse, with the intent to obstruct justice or influence any judicial officer. Id. at 560, 85 S.Ct. at 478. Cox first raised a facial challenge to the statute on First Amendment grounds. The Court rejected the facial challenge. It found the statute was a reasonable, narrowly drawn statute regulating specific conduct, which the state had a legitimate interest in regulating, in specific places — in or near a courthouse. Id. at 562-64, 85 S.Ct. at 479-81. Cox then raised a challenge to the statute as applied, which the Court also rejected. Id. at 564-66, 85 S.Ct. at 480-82. Significantly, Cox also sought reversal of his conviction on the Due Process ground, Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), that there was no evidence of intent to obstruct justice or influence any judicial" } ]

[ { "docid": "14800120", "title": "", "text": "will support an affidavit sufficient on its face.” Id. In Damitz, the court expressly left open the case where the affiant was a government agent, and stated that such a case might be different. Clearly, such a case assumes a lack of good faith on the part of the government agent/affiant, and, unlike the Damitz case, goes to the heart of the purpose of the exclusionary rule. The Damitz court referred to the deterrence of lawless police action as the basic purpose of the Fourth Amendment and the exclusionary rule. The court stated that “[t]his is why the intentional misstatement by an affiant who is a federal agent may vitiate the affidavit, the warrant and the search.” Id. at 56. Subsequent to Damitz, the Supreme Court addressed the same question and has modified the answer. In Franks v. Delaware, 488 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), Justice Blackmun stated that the issue was whether a criminal defendant ever has “the right, under the Fourth and Fourteenth Amendments, subsequent to the ex parte issuance of a search warrant, to challenge the truthfulness of factual statements made in an affidavit supporting the warrant . . . .” Id. at 155, 98 S.Ct. at 2676, 57 L.Ed.2d at 672. The Court, in Franks, responded by stating: “[WJhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Id. The" } ]

[ { "docid": "22300037", "title": "", "text": "were too vague to provide a substantial basis for the determination of probable cause. But these facts (unlike Hove) were not so vague as to be conclusory or meaningless. See United States v. Williams, 3 F.3d 69, 74 (3d Cir.1993) (“This is not a case in which the affidavit contained mere conclu-sory assertions or a single piece of evidence which the law of the station house shop would recognize as clearly insufficient.”). We therefore conclude that reasonable officers could have believed that the affidavit as submitted, even without the additional relevant information known to the officers, was sufficient to support the issuance of the warrant. At oral argument, the Carpenters contended that Lawson’s omission from his affidavit of the additional information known to the police (concerning the beaten paths and the two men walking from the marijuana patches to the residence) militated against the conclusion that they executed the warrant in good-faith reliance on its reasonableness. We disagree. Extrapolating from Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), this court has recognized that “material omissions [from an affidavit] are not immune- from inquiry under Franks.” United States v. Atkin, 107 F.3d 1213, 1216-17 (6th Cir.1997) (discussing Franks’s holding that a defendant is entitled to an evidentiary hearing on the veracity of the affidavit if (1) he or she can make a preliminary showing that portions of the affidavit are deliberately or recklessly false, and (2) after setting aside the false information, the remaining parts of the affidavit would not support a finding of probable cause). But to be constitutionally problematic, the material must have been deliberately or recklessly omitted and must have undermined the showing of probable cause. See id. (“If the defendant does succeed in making a preliminary showing that the government affiant engaged in ‘deliberate falsehood’ or ‘reckless disregard for the truth’ in omitting information from the affidavit, the court must then consider the affidavit including the omitted portions and determine whether probable cause still exists.”). The Carpenters have made no showing that Lawson omitted facts from his affidavit deliberately or recklessly. Moreover," }, { "docid": "18626438", "title": "", "text": "that government officials should be shielded from “insubstantial” lawsuits, while at the same time preserving the opportunity for plaintiffs to pursue meritorious claims. See Krohn, 742 F.2d at 31. Once a plaintiff has met this threshold requirement, the district court may, if it believes discovery is warranted, allow the plaintiff to engage in narrowly tailored discovery, supervising the discovery process to avoid imposing unnecessary burdens upon the defendants. See Anderson, 483 U.S. at 646 n. 6, 107 S.Ct. at 3042 n. 6 (1987); Krohn, 742 F.2d at 31-32. B We now turn to whether a heightened pleading standard is warranted in this ease. Branch alleges that Tunnell violated his fourth amendment rights by deliberately or recklessly misleading the magistrate to obtain the warrants with which he searched his home and office. In a criminal proceeding, a defendant challenging the veracity of a warrant affidavit is entitled to an eviden-tiary hearing only if he makes a “substantial preliminary showing” that “a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit” and that “the allegedly false statement is necessary to the finding of probable cause.” Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978). The Franks standard, although developed in the criminal context, “also defines the scope of qualified immunity in civil rights actions.” Rivera v. United States, 928 F.2d 592, 604 (2d Cir.1991); see also Forster v. County of Santa Barbara, 896 F.2d 1146, 1148 n. 3 (9th Cir.1990). Thus, “[i]f an officer submitted an affidavit that contained statements he knew to be false or would have known were false had he not recklessly disregarded the truth and no accurate information sufficient to constitute probable cause attended the false statements, ... he cannot be said to have acted in an objectively reasonable manner,” and the shield of qualified immunity is lost. Olson v. Tyler, 771 F.2d 277, 281 (7th Cir.1985) (citing Franks) (footnote omitted). Because a defendant's entitlement to qualified immunity in a Bivens or § 1983 action alleging judicial deception turns on" }, { "docid": "17804531", "title": "", "text": "made.” Id. Barr argues that the two Benson County officers who testified in support of the warrant misled the Benson County Court with respect to the reputation of Merrick. Specifically, Barr contends that the officers failed to disclose that Merrick had been convicted of embezzlement. There was no evidence that either officer knew of the prior conviction, but Barr argues they were reckless to seek a warrant without checking Merrick’s criminal record. Under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978), a search warrant is void, and the fruits of a search are inadmissible, if the defendant establishes by a preponder-anee of the evidence that (1) a witness in the warrant proceedings made a false statement knowingly or intentionally, or with reckless disregard for the truth, and (2) with the false statement set aside, the remaining evidence is insufficient to support probable cause. This rule has been extended to allow challenges on the basis of deliberate or reckless omissions. United States v. Reivich, 798 F.2d 957, 960-61 (8th Cir.1986). In the case of an omission, the defendant must establish that the evidence, as supplemented by the improperly omitted information, does not support probable cause. Id. at 961. The district court resolved the matter under the second prong of the Franks test. Examining the evidence, as supplemented by the omitted information concerning Merrick’s prior conviction, the court found “plenty of probable cause, even if [the issuing judge] was also made aware of the fact that Sam Merrick was a convicted embezzler.” Suppression Hearing Tr. at 100. We have reviewed the record and find the court’s decision to be supported by the evidence and consistent with applicable law. We see no reason to restate the findings of the district court in this regard. B. Jury Instruction Barr also contends that the district court erred in refusing her requested jury instruction regarding the mens rea required for convictions under the National Firearms Act (the Act). Barr proposed an instruction stating that she could be convicted only if the Government proved beyond a reasonable doubt that she" }, { "docid": "13106541", "title": "", "text": "good faith exception. We are satisfied that the first exception is not present here. Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), if a defendant establishes that a police officer made false statements in an affidavit supporting a search warrant knowingly or with reckless disregard for the truth, and that the false statement was necessary to the finding of probable cause, the evidence seized during the resultant search must be excluded. Id. at 155-56, 98 S.Ct. 2674. Allegations of negligence or innocent mistake, however, are insufficient. Id. at 171, 98 S.Ct. 2674. The district court conducted a Franks hearing on the veracity of the affidavit here, and listened to the testimony of Agent Magalassi. After reviewing the record, we conclude that the district court did not clearly err in finding that the mistakes in the supporting affidavit were insubstantial and did not contribute to the magistrate judge’s finding of probable cause, and that nothing in his testimony would show that Agent Magalassi deliberately lied or recklessly disregarded the truth. We are also satisfied that the third exception does not preclude application of Leon. At the time the underlying affidavit was prepared and the warrant was issued, neither the Supreme Court’s J .L. decision nor this court’s Danhauer decision had been issued. Agent Magalassi thus had reason to believe that corroboration of innocent facts, coupled with his investigation leading to discovery of Tuter’s criminal history, would be sufficient to establish probable cause. See Gates, 462 U.S. at 244 n. 13, 108 S.Ct. 2317 (“[I]nnocent behavior frequently will provide the basis for a showing of probable cause” and “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of non-criminal acts.”). Further, Agent Magalassi testified that he contacted an attorney in the U.S. Attorney’s office who told him he had sufficient probable cause. See Appellant’s App. at 153. “Just as reviewing courts give ‘great deference’ to the decisions of judicial officers who make probable-cause determinations, police officers should be entitled to rely upon the" }, { "docid": "13573059", "title": "", "text": "omitted from his affidavit the material facts that 1) the apartment superintendent had stated that he considered the storage area to be his, and 2) Bontempi had been in police custody from April 3-17, 1978. Flores argues that the former omission weakens the inference that the guns observed in the storage area were Bontempi’s. He argues that the latter omission weakens the inferences that the gunshots heard in the neighborhood were connected to Bontempi or that Bontempi possessed the guns found in the apartment. Flores contends that these facts would vitiate a finding of probable cause to search the apartment, and that the district court erred by not holding an evidentiary hearing to permit a challenge to the truthfulness of the affidavit. The Supreme Court has addressed this issue: [W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978). See also United States v. Maher, 645 F.2d 780, 782 (9th Cir. 1981) (omissions). Assuming these allegations constitute a sufficient preliminary showing that the affiant deliberately or recklessly omitted certain information from his affidavit, “[e]ven a deliberate falsehood must be material in order to justify invalidating a warrant.” Maher, 645 F.2d at 782. See United States v. Lefkowitz, 618 F.2d 1313, 1317 & n.3 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86," }, { "docid": "17500461", "title": "", "text": "the police must obtain a warrant from a neutral magistrate before searching private property. The amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,” typically provided by an officer’s warrant affidavit to justify the search. Probable cause is established when, considering the totality of the circumstances, there is sufficient evidence to cause a reasonably prudent person to believe that a search will uncover evidence of a crime. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The Supreme Court held in Franks v. Delaware that a search warrant is not valid if the police obtain it by deliberately or recklessly presenting false, material information to the issuing judge. The Fourth Amendment requires an evidentiary hearing on the veracity of a warrant affidavit, and ultimately on the constitutionality of the search, when a defendant requests such a hearing and “makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and ... the allegedly false statement is necessary to the finding of probable cause.” Franks, 438 U.S. at 155-56, 98 S.Ct. 2674; see also United States v. Spears, 673 F.3d 598, 604 (7th Cir.2012). Franks also applies to deliberately or recklessly deceptive omissions. See Harris, 464 F.3d at 738, citing United States v. Williams, 737 F.2d 594, 604 (7th Cir.1984); see also Shell v. United States, 448 F.3d 951, 958 (7th Cir.2006) (recognizing omission theory but finding no violation). It is relatively difficult for a defendant to make the “substantial preliminary showing” required under Franks. Allegations of negligent or innocent mistakes do not entitle a defendant to a hearing, nor do conclusory allegations of deliberately or recklessly false information. The defendant must identify specific portions of the warrant affidavit as intentional or reckless misrepresentations, and the claim of falsity should be substantiated by the sworn statements of witnesses. Franks, 438 U.S. at 171, 98 S.Ct. 2674. To obtain a hearing, the defendant must also show that if the deliberately or recklessly false" }, { "docid": "22048569", "title": "", "text": "near the time he supposedly entered the flower shop. In light of these facts, the only way that Wilson can succeed is if he proffers evidence that Russo recklessly disregarded the truth in his warrant application, and that a warrant application based on what Russo should have told the judge would have lacked probable cause. As this recitation suggests, an arrest warrant issued by a magistrate or judge does not, in itself, shelter an officer from liability for false arrest. See Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir.1997). Rather, a plaintiff may succeed in a § 1983 action for false arrest made pursuant to a warrant if the plaintiff shows, by a preponderance of the evidence: (1) that the police officer “knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant;” and (2) that “such statements or omissions are material, or necessary, to the finding of probable cause.” Id. A. Reckless Disregard for the Truth With these precepts in view, we must first consider whether Wilson adduced sufficient evidence that a reasonable jury could conclude that Russo made statements 'or omissions that he “knew [were] false, or would have known [were] false except for his reckless disregard for the truth.” United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); cf. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In Franks, the Court held that where a defendant showed by the preponderance of the- evidence that a false statement necessary to the finding of probable cause was made “knowingly and intentionally, or with reckless disregard for the truth,” the constitution requires that any evidence derived from the exercise of that warrant had be excluded from a criminal trial. Id. at 155, 98 S.Ct. 2674. But as the Court of Appeals for the District of Columbia Circuit has lamented, “[unfortunately, the Supreme Court in Franks gave no guidance concerning what constitutes a reckless disregard for the truth in fourth amendment cases, except to state" }, { "docid": "5613572", "title": "", "text": "a fair probability that contraband or evidence of a crime would be found in a particular place. United States v. Rankin, 261 F.3d 735, 738-39 (8th Cir.2001). First, Roberson argues that because the affidavit supporting the search warrant contains material misstatements and omissions, the warrant was invalid under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). To prevail on his Franks claim, Roberson must show that a false statement was included in the affidavit knowingly and intentionally or with reckless disregard for its truth, and that the affidavit’s remaining content is insufficient to establish probable cause. United States v. Reinholz, 245 F.3d 765, 774 (8th Cir.2001). Roberson asserts that the affidavit falsely indicated that he was a resident of 1526 Oliver Avenue North and the owner of a gray Chevrolet Tahoe. Roberson also asserts that the affidavit, by an omission, falsely implies that he spoke to the informant within 72 hours, and that the affidavit overstates the number of times he was observed at the residence. Even if we assume that all of these statements or omissions are false and either recklessly or intentionally misleading, however, Roberson has failed to show that the truthful, nonmisleading content within the affidavit is insufficient to establish probable cause. The probable cause to issue the warrant was primarily based on the observation of drug trafficking activity both by a confidential reliable informant and by police officers. None of the alleged misstatements or omissions materially affected the probable cause finding, and thus the district court did not err in upholding the warrant. Roberson next argues that his arrest was illegal and that the evidence seized as a result should have been suppressed. To find probable cause to make a warrantless arrest, the facts and circumstances within the officers’ knowledge must be sufficient to justify a reasonably prudent person’s belief that the suspect has committed or is committing an offense. United States v. Morgan, 997 F.2d 433, 435 (8th Cir.1993). In reviewing the law enforcement officers’ determination of probable cause, we look at the totality of the circumstances and give due" }, { "docid": "23255387", "title": "", "text": "supported by Oath or affirmation,” would be reduced to a nullity if a police officer was able to use deliberately falsified allegations to demonstrate probable cause, and, having misled the magistrate, then was able to remain confident that the ploy was worthwhile. Franks v. Delaware, 438 U.S. 154, 168, 98 S.Ct. 2674, 2682, 57 L.Ed.2d 667 (1978). Not every challenge to an affiant’s veracity will lead to an evidentiary hearing, however. Franks requires that a defendant make a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and ... is necessary to the finding of probable cause” before an evidentiary hearing (a “Franks\" hearing) must be conducted. Id. 438 U.S. at 155-56, 98 S.Ct. at 2676-77. The prerequisites for a Franks hearing have been clearly articulated: To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits of sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. Id. at 171-72, 98 S.Ct. at 2684-2685 (footnote omitted). Appellants filed six affidavits which challenged the veracity of Conley’s affidavit on a number of grounds. First, they alleged that the two undisclosed informants who purportedly placed or" }, { "docid": "17804530", "title": "", "text": "officers seized 2.58 grams of marijuana and a sawed-off shotgun. Barr moved to suppress that evidence. She contended that the officers failed to establish probable cause for the warrant because they intentionally or recklessly misled the court as to Merrick’s reliability. After an evidentiary hearing, the district court denied the motion. At trial, Barr admitted possessing the marijuana. She also admitted possessing the shotgun, but argued that she did not have the requisite knowledge for a conviction under the National Firearms Act. Barr’s requested jury instruction regarding the intent element was refused and the jury ultimately found Barr guilty on all counts. II. DISCUSSION A. Motion to Suppress We review the district court’s decision for clear error. United States v. Keene, 915 F.2d 1164, 1167 (8th Cir.1990), cert. denied, 498 U.S. 1102, 111 S.Ct. 1001, 112 L.Ed.2d 1084 (1991). We will affirm “unless we find that the decision is unsupported by the evidence, based on an erroneous view of the applicable law, or we are left with a firm conviction that a mistake has been made.” Id. Barr argues that the two Benson County officers who testified in support of the warrant misled the Benson County Court with respect to the reputation of Merrick. Specifically, Barr contends that the officers failed to disclose that Merrick had been convicted of embezzlement. There was no evidence that either officer knew of the prior conviction, but Barr argues they were reckless to seek a warrant without checking Merrick’s criminal record. Under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978), a search warrant is void, and the fruits of a search are inadmissible, if the defendant establishes by a preponder-anee of the evidence that (1) a witness in the warrant proceedings made a false statement knowingly or intentionally, or with reckless disregard for the truth, and (2) with the false statement set aside, the remaining evidence is insufficient to support probable cause. This rule has been extended to allow challenges on the basis of deliberate or reckless omissions. United States v. Reivich, 798 F.2d 957, 960-61 (8th" }, { "docid": "3058530", "title": "", "text": "Franks v. Delaware that intentionally or recklessly submitting false statements in an affidavit supporting a search warrant violates the Fourth Amendment. In order to obtain such a hearing, a defendant must make a substantial preliminary showing that a “false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and the allegedly false statement is necessary to the finding of probable cause.” Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). A defendant may also challenge an affidavit by demonstrating that the affiant intentionally or recklessly omitted material information. United States v. Harris, 464 F.3d 733, 738 (7th Cir.2006). We do not disturb a district court’s determination regarding the denial of a Franks hearing unless it was clearly erroneous. Id. at 737. Hoffman submits that the affidavit was flawed in two respects. First, he takes issue with Lora’s declaration that he “has been contacted by and worked with reliable confidential informantes] (Cl) in the past 48 hours whose information has been found to be reliable and credible related to drug trafficking and traffickers in St. Joseph County.” This statement is problematic in Hoffman’s view because Reppert and Schulman had never before served as informants, and the basis of their reliability is not explicitly discussed in the affidavit. Second, Hoffman notes that the recorded telephone conversation — which was mentioned in the affidavit as a successful attempt to order cocaine — did not contain any specific refer ence to narcotics, and so there was no reason to believe that he was dealing drugs from his residence. Each of Hoffman’s arguments is unavailing. Lora’s statements regarding the Informants’ reliability were not made with a reckless disregard for the truth because many of their statements identifying other dealers in the area were corroborated. To be’ sure, Lora looked up information regarding other individuals they had named, verified that their descriptions matched, and that drug-related complaints had been made against them. He also went to Hoffman’s workplace, photographed his vehicle, and spoke with his probation officer. Most importantly, Lora" }, { "docid": "1312173", "title": "", "text": "search claim. The warrant affidavit upon which this claim is based was submitted only by Beeson, and Dahl points to no evidence that the other officers played any role in applying for the warrant. On this basis alone, the other officers were entitled to summary judgment. In any event, Dahl has failed to demonstrate that her Fourth Amendment rights were violated in connection with the search warrant application. A search warrant may be voided if the affidavit supporting the warrant contains deliberate falsity or reckless disregard for the truth, see Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978), and this rule includes material omissions, see United States v. Martin, 615 F.2d 318, 328-29 (5th Cir.1980). Nonetheless, the warrant is valid if, absent the misstatements or omissions, there remains sufficient content to support a finding of probable cause. See Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684. In this case, Dahl has presented no evidence that Beeson deliberately or recklessly misstated the evidence or omitted any material fact which would negate a finding of probable cause. The alleged fabrications of which Dahl complains come directly from McCardle’s written statement to the police and identify “the confidential informant” as the source of the information. (R.2-38, Ex. 19 at 2.) Beeson accurately portrayed the information the police obtained from MeCardle, and there is nothing to suggest that he knew this information to be inaccurate. Moreover, the omission of which Dahl complains does not defeat the probable cause determination. As we have explained, the totality of the circumstances provided a sufficient basis to believe that Dahl had violated § 13A-10-121, her exculpatory statements to MeCardle notwithstanding, and the omit ted facts would not have prevented a finding of probable cause. See Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir.1997). Because there was no violation of Dahl’s constitutional rights, the district court correctly granted summary judgment on her unlawful search claim. D. First Amendment: Retaliatory Arrest Dahl also claims that she was arrested in retaliation for her constitutionally protected speech against the police department’s recruitment and" }, { "docid": "14038791", "title": "", "text": "disregard for the truth when an officer recklessly omits facts that any reasonable person would know that a judge would want to know” when deciding whether to issue a warrant). Allegations of intentional or reckless misstatements or omissions implicate the very truthfulness, not just the sufficiency, of a warrant application. If such allegations prove to be true, a court owes no deference to a magistrate’s decision to issue an arrest warrant because, “where officers procuring a warrant have deliberately misled the magistrate about relevant information, no magistrate will have made a prior probable cause determination” based on the correct version of the material facts. Velardi v. Walsh, 40 F.3d 569, 574 n. 1 (2d Cir.1994). The requirement that the contested facts included in or omitted from a warrant application be material to the probable cause determination to establish a Fourth Amendment violation derives from the standard announced for the suppression of evidence in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). There, the Supreme Court held that a criminal defendant who establishes that a police officer procured a search warrant by intentionally or recklessly making materially false statements in a supporting affidavit is entitled to the suppression of evidence so long as “the remaining content [in the affidavit] is insufficient” to support probable cause. Id. at 156, 98 S.Ct. 2674. Appellate courts have consistently held that the Franks standard for suppression of evidence informs the scope of qualified immunity in a civil damages suit against officers who allegedly procure a warrant based on an untruthful application. See, e.g., Aponte Matos v. Toledo-Dávila, 135 F.3d 182, 185 (1st Cir.1998) (where allegedly false statement was necessary to establish probable cause, defendant “will not be protected by qualified immunity” if plaintiffs prevail at trial on claim that defendant lied in search warrant application); Olson v. Tyler, 771 F.2d 277, 282 (7th Cir.1985) (“Where the judicial finding of probable cause is based solely on information the officer knew to be false or would have known was false had he not recklessly disregarded the truth, not only does the arrest" }, { "docid": "15548875", "title": "", "text": "the nature of the crime under investigation.” Id. The evidence sought under the search warrant in this case — primarily books and records relating to drug trafficking, as well as names, addresses, and photographs of co-conspirators — is of a type that might have remained on the premises for some time after McNeil’s drug courier activities were complete. See United States v. Humphrey, 140 F.3d 762, 764 (8th Cir.1998). Moreover, even if the information in the warrant affidavit was impermissibly stale, the warrant was not so facially lacking in probable cause as to preclude the executing officers’ good faith reliance thereon. See United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); United States v. Riedesel, 987 F.2d 1383, 1391 (8th Cir.1993). Accordingly, the district court did not commit plain error in failing to suppress the search warrant evidence on staleness grounds. 2. Entitlement to Franks hearing McNeil requested a Franks hearing to determine whether the magistrate judge who issued the warrant had been misled by intentional or reckless false statements in, or material omissions from, the warrant affidavit. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The district court denied McNeil’s request for a Franks hearing on the ground that McNeil had failed to identify the specific portions of the affidavit that he claimed were false or contained material omissions. A defendant is not entitled to a hearing to determine the veracity of a search warrant affidavit unless “he or she can make a substantial preliminary showing that a false statement was included in the affidavit (or that relevant information was omitted from it) intentionally or recklessly.” United States v. Mathison, 157 F.3d 541, 547-48 (8th Cir.1998). As the Supreme Court explained in Franks, [t]o mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point" }, { "docid": "12957957", "title": "", "text": "affidavit contained materially false information and that under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978), the district court should have held a hearing to determine whether the affidavit, when viewed without the incorrect statements, provided probable cause for Judge Sams’s issuance of the search warrant. Franks holds: [W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless regard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. Id. We agree with the district court that Lowe included inaccurate statements in his affidavit and that he arguably did so with reckless disregard for their truth. The district court correctly found, however, that even without these statements (i.e., assuming the statements are redacted from the affidavit), the affidavit still provided probable cause for the issuance of the warrant. “Whether false statements or omissions are intentional or reckless is a factual finding reviewed under the clearly erroneous standard.” United States v. Dozier, 844 F.2d 701, 705 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988) (citations omitted). “Whether misstatements or omissions are material to a finding of probable cause is subject to de novo review.” Id. (citation omitted). Lowe’s affidavit relied on information furnished by three informants. The inaccurate statements in the affidavit pertain to the reliability of those informants. The affidavit implied all three informants had provided the police with accurate information in previous criminal investigations. This was incorrect: Lowe and his fellow officers had no reason to believe their sources previously had served as informants. In addition to this error, the affidavit implied the second informant had revealed his identity to the police, when in fact he had remained anonymous. Finally, the affidavit suggested the third informant knew more about “drug culture” and the nature of methamphetamine than he actually did. Officer Lowe’s misstatements are inexcusable, and we by no" }, { "docid": "7129377", "title": "", "text": "no effort to deceive the bail commissioner; that there was no evidence that the bail commissioner was deceived by the affidavit; that the omitted information was not crucial to the existence of probable cause to issue a warrant; that the guns were properly seized as items used in drug distribution; and that the first incriminating statement was admissible because it was not a product of custodial interrogation. II. Calisto’s challenge to the validity of the search is based on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Under Franks, if a defendant makes a substantial preliminary showing that 1) a false statement was included by the affiant in an affidavit supporting a search warrant, either knowingly and intentionally or with reckless disregard for the truth and 2) the allegedly false statement is necessary to a finding of probable cause, then the false material in the affidavit is to be set aside and the sufficiency of the affidavit to establish probable cause is to be judged by the remaining material. Calisto argues that the Weniger affidavit was knowingly and intentionally false or made with reckless disregard for the truth and that, accordingly, there must be a Franks-type excision of paragraphs 2, 3 aná 6 of Weniger’s affidavit. When those paragraphs have been excluded, Calisto contends, the affidavit provides no probable cause for the issuance of a search warrant. We start with the fact that from Weni-ger’s perspective, the affidavit was filed in good faith and accurately reflected the facts as he understood them. We agree with Calisto, however, that this cannot end the matter. If we held that the conduct of Weniger, as the affiant, was the only relevant conduct for the purpose of applying the teachings of Franks, we would place the privacy rights protected by that case in serious jeopardy. As the Supreme Court noted in Franks, “police [canjnot insulate one officer’s deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity.” 438 U.S. at 164 n. 6, 98 S.Ct. at 2680. We also agree with Calisto that his argument" }, { "docid": "15584323", "title": "", "text": "alleged conclusions that the police could not validly make. The question is whether or not there was probable cause. In other words was there information enough to warrant a man of reasonable caution to believe that the offense had been or was being committed. United States v. Haala, 532 F.2d 1324, 1327 (10th Cir.1976); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The standard for the issuance of a warrant is that there was a showing of a reasonable probability of criminal activity. A prima facie case is unnecessary. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964). If the warrant is valid on its face, it may only be challenged on a substantial showing that the affiant included in the affidavit false statements made knowingly or in reckless disregard for the truth. In such a situation the defendant must be given a hearing under the fourth amendment if the false statements are necessary to a finding of probable cause. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). There has been no substantial showing that the affiant included in the affidavit false statements made knowingly or in reckless disregard of the truth. The affidavit for the warrant states facts sufficient to justify the issuance of this warrant. Here the affidavit recites that the police received a report of suspicious activity; also the police observed the defendants acting nervously. More important was discovery by police of items believed to be drug paraphernalia found in defendants’ rooms. A cocaine wrapper or “snow-seal” was discovered in the trash of a vacated room. The facts recited, without more, adequately justify a finding of probable cause. There is not the slightest evidence that the police knowingly, recklessly or otherwise included false statements in the affidavit. Nor have, defendants shown any substantial inaccuracies. About as close as the defendants come is their allegation that the police negligently concluded that the defendants" }, { "docid": "15584324", "title": "", "text": "amendment if the false statements are necessary to a finding of probable cause. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). There has been no substantial showing that the affiant included in the affidavit false statements made knowingly or in reckless disregard of the truth. The affidavit for the warrant states facts sufficient to justify the issuance of this warrant. Here the affidavit recites that the police received a report of suspicious activity; also the police observed the defendants acting nervously. More important was discovery by police of items believed to be drug paraphernalia found in defendants’ rooms. A cocaine wrapper or “snow-seal” was discovered in the trash of a vacated room. The facts recited, without more, adequately justify a finding of probable cause. There is not the slightest evidence that the police knowingly, recklessly or otherwise included false statements in the affidavit. Nor have, defendants shown any substantial inaccuracies. About as close as the defendants come is their allegation that the police negligently concluded that the defendants acted nervously and suspiciously. Police negligence is insufficient to justify a Franks hearing. See United States v. Smith, 588 F.2d 737, 739-40 (9th Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1287, 59 L.Ed.2d 498 (1979). The defendants place heavy reliance upon the fact that the service of the summons was at night and that this is in violation of Wyoming law. Rule 40(c) of the Wyoming Rules of Criminal Procedure' directs that a warrant should be served during the day, unless good cause is shown for its issuance at “any time.” Wyo.Stat. § 35-7-1045(d) provides that: A search warrant relating to offenses involving controlled substances may be served at any time of the day or night if the judge or district court commissioner issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time. The warrant in the present case was obtained by a Wyoming police officer and was issued by a Wyoming judge. The parties appear to agree that" }, { "docid": "7972841", "title": "", "text": "to a park located several blocks from the police station and met the judge on a park bench. (April 9, 2004 was Good Friday.) Officer Korbas remembers nothing about the meeting. Bell remembers that the judge asked him some questions but does not remember what they were. The judge then signed the warrant, and the police proceeded to search Williams’ house, where they found the marijuana and scales, as well as the handgun that was the basis for Williams’ conviction under § 922(g)(5). B. The Franks Hearing Before trial, Williams filed a motion to suppress the seized evidence on the ground that the affidavit in support of the warrant was deliberately or recklessly false. The district court granted a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to examine the truthfulness of the warrant affidavit. Under Franks, evidence seized pursuant to a warrant must be suppressed when the defendant shows by a preponderance of the evidence that (1) the affidavit in support of the warrant contains false statements or misleading omissions, (2) the false statements or omissions were made deliberately or with reckless disregard for the truth, and (3) probable cause would not have existed without the false statements and/or omissions. Franks, 438 U.S. at 155-56, 98 S.Ct. 2674; United States v. McMurtrey, 704 F.3d 502, 508 (7th Cir.2013) (noting extension of Franks to deliberately or recklessly deceptive omissions). Williams contended that the affidavit had three flaws, each of which was necessary to a finding of probable cause. First, the affidavit incorrectly claimed that Officer Korbas had firsthand knowledge of Bell’s account when he really had only secondhand knowledge. Second, the affidavit incorrectly stated that Bell (J. Doe) was last at Williams’ apartment on April 8 — the day before Bell was arrested— when Bell had initially told the agents that he was last there three or four days earlier. Third, Williams argued, the affidavit omitted material facts that undermined Bell’s credibility. The affidavit neglected to mention that (1) Bell was under arrest for attempting to purchase firearms, (2) Bell had told" }, { "docid": "22578369", "title": "", "text": "this finding by the state court and the state’s concession, I find surprising the majority’s conclusion that the defendant officers’ misrepresentations and omissions were not material to the finding of probable cause by the magistrate. Admittedly, the New Jersey courts did not need to make the sophisticated analysis of the precedent engaged in by the majority because the state conceded the issue. But it must have had some basis to make such a concession. Thus, I can only attribute the majority’s conclusion to its decision that the defendants’ affidavit should not only be redacted of all of the misrepresentations, but that the affidavit should be corrected to include the relevant facts omitted by the officers. It is with that process that I disagree. The relevant analysis must begin with Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), where the issue a rose in the context of a defendant’s appeal from his conviction in state court on the ground that the warrant affidavit was procured by misrepresentations. Although proof of negligence or innocent mistake is insufficient, the Supreme Court rejected the state’s argument that a defendant may never challenge the veracity of a sworn statement used by police to procure a search warrant. Instead, the Court held that such a challenge may be made “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, ... if the allegedly false statement is necessary to the finding of probable cause....” Id. at 155, 98 S.Ct. at 2676. In discussing whether an evidentiary hearing is necessary when such a challenge is made by a defendant seeking to exclude the fruits of the search on the basis of a Fourth Amendment violation, the Court noted that a hearing is not required “if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause.” Id. at 171-72, 98" } ]

[ { "docid": "12175408", "title": "", "text": "transferred, assigned, delivered, or paid to the Alien Property Custodian, and held by him or by the Treasurer of the United States, may institute suit in the District Court of the United States for the district in which such claimant resides, against the Alien Property Custodian or the Treasurer of the United States, to establish the interest, right, title, or debt so claimed, after complying with certain conditions precedent with which we have no' present concern. The enemy character of the appellant is the only question for consideration on this appeal. If an enemy within the meaning of the law he may not maintain this suit under the express provisions of the Trading with the Enemy Act; otherwise, he may. And, first, was he a resident of Germany, or óf territory occupied by the military and naval forces of that country? It would serve no purpose to review the multiplicity of decisions construing the term “resident,” or “residence,” in statutes relating to attachment, bankruptcy, divorce, elections, executors and administrators, guardian and ward, homesteads, insolvency, limitation of actions, paupers, naturalization, and schools.- “ ‘Residence’ as used in various statutes has been considered synonymous with ‘domicile,’ but of course this depends upon the intent of the particular statute as ascertained by construction of its provisions. The terms are not necessarily synonymous. Generally, where a statute prescribes residence as a qualification for the enjoyment of a privilege, or the exercise of a franchise, and whenever the terms are used in connection with subjects of domestic policy, domicile and residence are equivalent.” 19 C. J. 397. What, then, did Congress mean by the term “resident,” as employed in the Trading with the Enemy Act? Under a well-settled rule of international law,-a foreigner living and established in the territory of a state is to a large extent under its control; he cannot be made to serve it personally in war, but he contributes by way of payment of ordinary taxes to its support, and his property is liable, like that of subjects, to such extraordinary subsidies as the prosecution of a war may demand. Hall’s" } ]

[ { "docid": "2183580", "title": "", "text": "817 (1939)). When the plaintiff has shown that the defendant had a former domicile, the burden shifts to the defendant to prove that his domicile has changed. Kaiser v. Loomis, 391 F.2d 1007, 1009-10 (6th Cir.1968) (citing Stine v. Moore, 213 F.2d 446, 448 (5th Cir.1954)). To sustain this burden, the defendant must show that he has acquired a new residence and intends to remain there. Kaiser, 391 F.2d at 1009 (cit ing Mitchell v. United States, 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1874)). In the present case, the parties do not dispute that Miller was originally domiciled in New York. Defendants contend, however, that Miller’s domicile changed in 1981 when he purchased a home in South Kent, Connecticut. In support of this contention, Miller points to many factors suggesting that Connecticut is his true domicile, including: he renovated the Connecticut home and installed a pool, married in Connecticut in 1983, rented a condominium there during his divorce, uses an office in Connecticut, lists Connecticut as his principal residence on his tax returns, carries a Connecticut driver’s license, services and registers his cars in Connecticut, maintains a safe deposit box in Connecticut, receives bills in Connecticut, lists Connecticut as his residence on contracts, his passport, and hotel registrations, and spends more than half the year in Connecticut. See Miller Affidavit, sworn to April 20, 1992, at 1ttl 2-11. Kubin claims that, although Miller has established an additional residence, he is still a New York domiciliary. Thus, Kubin points out that Miller lived in New York with his first wife, remarried in New York and currently lives there with his second wife in an apartment at 101 West 79th Street, owns an adjoining apartment in the same building, works full-time in New York and therefore does not spend more than half the year in Connecticut, uses physicians, accountants, lawyers, and stock brokers in New York, and attends a weekly men’s group in New York. See Kubin Aff., at 1M119-22. Although the facts indicate that Miller did acquire a second residence in Connecticut, the Court finds that Miller has" }, { "docid": "21740527", "title": "", "text": "and his wife had been detained in Germany by the sickness of her mother and her death in 1909. They were subsequently detained in an attempt to sell the property in Germany, which he owned, and were unable to sell. As the man had been bom in Germany, and then had been naturalized in this country, the contention was that under the Act of March 2, 1907, 34 Stat. 1228, § 2 (Comp. St. § 3959), he was presumed to have ceased to be an American citizen, and Germany was to be deemed to be his place of residence. But the courts held that the circumstances under which he had resided in Germany, together with his testimony that he had at all times regarded himself as an American citizen, and that he at all times intended to return to the United States as his permanent domicile, he had not lost his American citizenship, and was not an alien enemy, notwithstanding his residence in Germany. While there he had not engaged in business, but had bought some German bonds, “as he explains, because of the popular furore.” It seems to have been assumed, both in the District Court and in the Circuit Court of Appeals, that if, during the period of his sojourn in Germany, which, as we have said, was during the entire period of the war, he did no act hostile to the United States, and intended to return to this country at the close of the war, he had a clear and unquestioned right to the return of his property under section 9. If Miller v. Sinjen was correctly decided, there can be no question but that the instant case was decided erroneously. Upon the facts alleged in the complaint herein, the plaintiff, Stadtmuller, was a domiciled resident of New York; that he was in Germany for a temporary purpose and all the time in tended returning to New York, but was not permitted to do so by government regulations. ■ He did no act of disloyalty to the United' States throughout the entire period, and returned to" }, { "docid": "22445318", "title": "", "text": "war within the meaning of §§ 2 and 9 (a) of the Trading with the Enemy Act. He was physically within the enemy’s territory. He contends, however, that the meaning conveyed by “resident within” ■is something more than mere presence; at the least a. domiciliary connotation, if not domicile, is implied. ' Legislative history leaves the meaning shrouded. Some use of the term “domicile” as the touchstone of enemy status is to be found in the Congressional hearings and reports. But on the floor, Representative Montague, one of the managers of the bill, unequivocally stated underdose questioning that the statutory language was intended to cover much more than those domiciled in enemy nations. Yet prisoners of war, expeditionary forces arid “sojourners”, were not, he said, intended to be included. 55 Cong. Rec. 4922. Guessefeldt retained his American domicile. Moreover, if anything more than mere physical presence in enemy territory is required, it would seem clear that he was not an “enemy” within the meaning of § 2. His stay before the war, as a matter of choice, was short. The circumstances negative any desire for a permanent or long-term connection with Germany. He intended, and indeed attempted, to leave there before this country en~, tered the war. Being there under physical constraint, he is almost literally within the excepted class as authoritatively indicated by Mr. Montague. To hold that “resident within” enemy territory implies something more than mere physical presence and something less than domicile is consistent with the emanations of Congressional purpose manifested in the entire Act, and the relevant extrinsic light, including the decisions of lower' courts on this issue, which we note without specifically approving any of them. See McGrath v. Zander, 85 U. S. App. D. C. 334, 177 F. 2d 649; Josephberg v. Markham, 152 F. 2d 644; Stadtmuller v. Miller, 11 F. 2d 732; Vowinckel v. First Federal Trust Co., 10 F. 2d 19; Sarthou v. Clark, 78 F. Supp. 139. Guessefeldt has the further obstacle of § 39 to clear before he can succeed. Congress in 1948, so the Govern- merit’s argument runs," }, { "docid": "23672233", "title": "", "text": "Stadtmuller v. Miller, supra, 11 F.2d at pages 737-739, 45 A.L.R. 895, and Sarthou v. Clark, D.C.S.D.Cal.1948, 78 F.Supp. 139, 142. This last case epitomizes the several rulings in these words: ll * * * ‘resident within the territory’ as employed in the Act connotes something different from and more than living within the specified areas. It is rather indicative of a settled and permanent place of abode, volitionally acquired and voluntarily assumed. It is a habitation having domiciliary properties.” We agree with those- decisions. Adopting them as correctly interpreting the critical words before us, we find nothing in the facts to bring appellee within the statu tory category of \"resident within”' Germany, unless it be that marriage technically imposed upon her the residence or domicile of her husband. Otherwise the conclusion is irresistible that Mrs. Zander left the United States for a short stay in Germany with the definite intention of returning to her home in New Orleans, became an unwilling sojourner in Berlin, and was forced by the hard realities of war to remain there, contrary to her unfaltering desire and intention to get away and return to her home and domicile in the United States, as soon as she could do so. We are mindful of the rule that the domicile of a wife usually follows that of her husband. Yet, we think, in the unusual circumstances of this case, such a result could not fairly or justly be considered to have followed the marriage of appellee. The rule is not unyielding. It amounts to no more than a prima facie presumption. Commonwealth v. Rutherfoord, 1933, 160 Va. 524, 169 S.E. 909, 90 A.L.R. 348. As the Supreme Court long ago declared, a wife “may acquire a separate domicil whenever it is necessary or proper that she should do so. The right springs from the necessity for its exercise, and endures as long as the necessity continues.” Cheever v. Wilson, 1869, 9 Wall. 124, 19 L.Ed. 604. And the court adds, the law “is so well settled that it would be idle to discuss it.” See also" }, { "docid": "5912877", "title": "", "text": "He argues that under Illinois law, a voter must have a “permanent abode and dwelling place” within the precinct in which he is registered, Ill.Rev.Stat. ch. 46, § 4-2, and consequently, had he not been a domiciliary of Springfield he could not have registered in that district. Whether or not one votes where he claims domicile is highly relevant but by no means controlling. Each state prescribes for itself the qualifications of its voters, and each has its own machinery for determining compliance with such qualifications. A vote cast without challenge and adjudication may indicate only laxity of state officials . . . District of Columbia v. Murphy, 314 U.S. 441, 456-57, 62 S.Ct. 303, 310, 86 L.Ed. 329 (1941). A situation similar to that which the Supreme Court envisioned occurred in this case. While defendant’s Springfield voter registration began in December of 1971, still he was listed as an active voter in Cook County as late as October, 1972. He also claimed in that registration that he had been a resident of the Springfield precinct for the past three years. While he may have been a “political” resident of Springfield since 1968 it is clear from the defendant’s own conduct that he was a “personal” resident of the Northern District of Illinois during that period. During much of that period he resided with his first wife and children in Evanston. His application for a United States passport in November of 1968 listed Evanston as his permanent address and he used that passport as late as July 10, 1973, to enter Bermuda and claimed an address in the Northern District of Illinois as his permanent home address. This type of official oversight is not indicative of any wrongdoing on the part of the voter. However, such errors detract from the weight which may otherwise be given to the fact that voter registration is substantial evidence of a permanent abode, and clearly demonstrate that such registration is not conclusive. Although defendant maintained a bank account in Springfield, the activity in that account has been minimal. In contrast, defendant established various accounts" }, { "docid": "12060291", "title": "", "text": "his principal residence there from Michigan prior to Von Dunser’s filing suit. In his brief, Von Dunser takes the position that federal jurisdiction exists on the basis of diversity of state citizenship. He argues that at the time he brought his action he was still a citizen of Florida, never having established a different domicile during his years in Europe. State citizenship for the purpose of the diversity requirement is equated with domicile. Sadat, 615 F.2d at 1180; Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027 (1st Cir.1988); Valedon Martinez v. Hospital Presbiteriano de la Comunidad, 806 F.2d 1128 (1st Cir.1986). A person’s previous domicile is not lost until a new one is acquired. Kaiser v. Loomis, 391 F.2d 1007 (6th Cir.1968); Lew v. Moss, 797 F.2d 747 (9th Cir.1986); Maple Island Farm, Inc. v. Bitterling, 196 F.2d 55 (8th Cir.1952). Establishment of a new domicile is determined by two factors: residence in the new domicile, and the intention to remain there. Mississippi Band of Choctaw Indians v. Holy-field, 490 U.S. 30, -, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989); 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3612. The parties have presented this court with assertions of fact that support their respective positions. Aronoff contends that Von Dunser has established a residence in Europe and shown an intention to remain there. Von Dunser claims he went to Europe because of his mother’s illness, that he considered the relocation to be temporary, that he always intended to return to Florida, and that he frequently returns to Florida for business and to visit his son in school. Aronoff maintains, in turn, that by 1983 he had filed a Declaration of Domicile in Florida, established his principal residence in Naples, and paid Florida income taxes. None of these arguments was raised below. Consequently no finder of fact has examined any evidence that would tend to support or refute them. This court, sitting on the appeal of the district court's ruling on the merits, is not in a position to determine the truth of the parties’ assertions regarding their domiciliary" }, { "docid": "21740545", "title": "", "text": "birth, who came to California in 1892, declared his intention in 1898 to become a citizen of the United States, returned to Germany September 22, 1915, entered the Red Cross as a surgeon in Germany, October 12, 1915, and remained there until March, 1919, when he came back to this country. During his absence from the United States his property in this country was seized by the Alien Property Custodian. After his return he brought suit under section 9 in the District Court for the Northern District of California. That court decided the matter adversely dismissing his bill. On appeal to the Circuit Court of Appeals the case was reversed, and the right to maintain the suit was sustained. • In a number of opinions of the Attorney General, construing claims made for the return of property belonging to persons domiciled in the United States, but who were in Germany during the war and were prevented from returning, and whose property in the United States had been seized by the Alien Property Custodian, the claims have been sustained. The Attorney General has pointed out, correctly, as we think, the distinction between a transient, resident, inhabitant with domicile, and a citizen or.subject, and the word “reside” has been interpreted as being something more than arriving at a place in travel or in pursuit of temporary objects. He has held that mere presence is not tantamount to residence under the statute, nor mere absence equivalent to residence elsewhere. - He correctly reached thé conclusion that the term “resident” or “residence” imports a fixed abode for the time being, as contradistinguished from a place of temporary sojourn, and that a mere transient is not a resident. See Opinions of Attorney General of April 27, 1922, claim of Oscar von Passavant; of May 18, 1921, claim of Otto Weber; of October 19, 1922, claim of Hans Goldschmidt; of October 21, 1921, claim of Paul Haberland; of June 17, 1921, claim of Hans Hohner; of December 2,1920, Jung claims. A merchant of Manila, Philippine Islands, was in Germany during the entire duration of the war," }, { "docid": "22445319", "title": "", "text": "of choice, was short. The circumstances negative any desire for a permanent or long-term connection with Germany. He intended, and indeed attempted, to leave there before this country en~, tered the war. Being there under physical constraint, he is almost literally within the excepted class as authoritatively indicated by Mr. Montague. To hold that “resident within” enemy territory implies something more than mere physical presence and something less than domicile is consistent with the emanations of Congressional purpose manifested in the entire Act, and the relevant extrinsic light, including the decisions of lower' courts on this issue, which we note without specifically approving any of them. See McGrath v. Zander, 85 U. S. App. D. C. 334, 177 F. 2d 649; Josephberg v. Markham, 152 F. 2d 644; Stadtmuller v. Miller, 11 F. 2d 732; Vowinckel v. First Federal Trust Co., 10 F. 2d 19; Sarthou v. Clark, 78 F. Supp. 139. Guessefeldt has the further obstacle of § 39 to clear before he can succeed. Congress in 1948, so the Govern- merit’s argument runs, adopted' a “policy of nonreturn,” and prohibited the restoration of vestéd property to a “national” of Germany. A citizen is a national, and Guessefeldt is a German citizen. Thus, even though he may, before the enactment of § 39, have been entitled to bring suit as a nonenemy under § 9' (a), that privilege has since been cut off. ‘ To which Guessefeldt counters that § 39 must be construed harmoniously with § 9 (a); the term “national” in the new section must accordingly be taken to mean only those German and Japanese citizens who could not theretofore have enforced the return of their property as of right. Section 39, in the .context of its legislative history and in the light of the scheme and background of the statute, makes the Government’s contention unpersuasive. It is clear that the Custodian can lawfully vest under § 5 a good deal more than he can hold against a § 9 (a) action. Central Union Trust Co. v. Garvan, 254 U. S. 554; Clark v. Uebersee Finanz-Korp., 332" }, { "docid": "22193155", "title": "", "text": "the brief periods Singh spent in the United States he neither maintained his own residence, nor a job of any permanence. Singh’s pattern, therefore, was to live abroad most of the year and to spend his summers working in California and living in a dwelling furnished by his employer. Several cases have held that aliens relinquish their permanent resident status in directly analogous circumstances. See, e.g., Alvarez v. District Director, 539 F.2d 1220, 1222 (9th Cir.1976) (alien relinquished permanent resident status despite spending two or three consecutive months living in the U.S. and staying with friends); Angeles v. District Director, 729 F.Supp. 479, 481 (D.Md.1990) (10- to 11-month annual absences and residing at relative’s home in U.S.); Huang, 19 I. & N. Dec. at 750 (11-month annual trips abroad and residing at relative’s home while in U.S.); Kane, 15 I. & N. Dec. at 258 (11-month annual absences from U.S. and residing in rented furnished home while in U.S.). Singh made long trips abroad of nine months and almost eight months, without any residence or employment of any permanence to return to. The slight difference in the duration of Singh’s long trips abroad and those in the above cases does not convert Singh’s extensive absences to “temporary visits abroad.” The INS argues that these activities are consistent with those of a nonimmigrant visitor for business and we agree. The evidence clearly shows a visitor who spent a sporadic amount of time in the United States until he could establish a permanent residence in this country “at some indefinite time in the possibly distant future.” Angeles, 729 F.Supp. at 484. Singh spent his summers in California, but spent the vast majority of his time abroad in anticipation of his wife and daughter attaining legal immigrant status. These visits do not qualify as “temporary” and, by making them, Singh abandoned his legal permanent residency in the United States. See Huang, 19 I. & N. Dec. at 756 (permanent residency relinquished when family lived in Japan while waiting for husband to finish doctoral studies so they could all move to the United States);" }, { "docid": "7366709", "title": "", "text": "v. Zander, 1949, 85 U.S.App.D.C. —, 177 F.2d 649; Stadtmuller v. Miller, 2 Cir., 1926, 11 F.2d 732, 45 A.L.R. 895. In all the cases involving liability for military service under § 3(a) of the Selective Training and Service Act which have come to our attention, the aliens held to be “residing in the United States” had lived in this country for long periods of time, were not here under temporary visitor’s visas, and no deportation orders were involved. The only case holding that a “temporary visitor” is “residing in the United States” within the terms of § 3(a) is Benzian v. Godwin, 2 Cir., 1948, 168 F.2d 952, certiorari denied 1948, 335 U.S. 886, 69 S.Ct. 235, in which no deportation order had been issued. Judge Frank, speaking for the court, held that when Congress amended STSA § 3(a) in 1941 to make liable for service “all male persons residing in the United States,” it adopted the Attorney General’s construction of that phrase as previously used in § 2 in connection with persons subject to registration. That construction had been to the effect that for registration purposes, persons here under temporary visas were “residing in the United States.” 39 Op.Atty.Gen. 504 (Oct. 11, 1940). Without examining into the merits of the residence question, the court in the Benzian case deferred to the rule of statutory construction that Congressional reenactment of an administratively interpreted statute evidences Congressional approval of that interpretation, and extended the rule to use of the old phrase in a new context. That rule, however, had its origin in situations where a statutory provision had been interpreted by an agency over a long period of years and Congress then re enacted the same provision. In contrast, as already indicated, we are, confronted with a transposition of a phrase from one context in the statute to another, with no direct evidence whatsoever that Congress was aware of the Attorney General’s construction of the phrase in the first context. As the Supreme Court said in Girouard v. United States, 1946, 328 U.S. 61, 69-70, 66 S.Ct. 826, 830, 90" }, { "docid": "20158879", "title": "", "text": "v. United States, 116 U.S. 616, 6 S.Ct. 524; Sgro v. United States, 287 U.S. 206 loc.cit. 210, 53 S.Ct. 138, 77 L.Ed. 260, 85 A.L.R. 108. Defendant, a single man, had acquired the property upon which was located the dwelling house in which the seizure occurred, about two years before his indictment. He testified that it was his home. He had apparently expended considerable sums of money in modernizing the place by putting in electric; lights, a sewer, hot and cold running water, a furnace and completely furnishing the four rooms, including a Frigidaire. It is the undisputed testimony that he went there to stay and sleep over week ends and occasionally during the week; that was true even while the property was being occupied by an employe of defendant. He had also acquired and placed thereon some livestock, as heretofore stated. Every act done with respect to the property was indicative of an intention to make it a home. Residence being a question of intention, even though a person may spend most of his time elsewhere, the place to which he expects to return is considered his home. As was said in United States ex rel. Devenuto v. Curran, 2 Cir., 299 F. 206, loc.cit. 211: “Residence denotes a place of abode, without regard to whether it be temporary or permanent, while a domicile is the place where the law regards the person to be, whether or not he is corporeally found there. And one may have several residences at the same time but he can only have one domicile at a time.” We are living in a highly transitory age. It certainly isn’t uncommon for persons now to have more than one place which they may rightfully call “home”. The place a man considers his home will be afforded the protection of the Amendment, although he may spend a part, even the greater part, of his time at some other place. The testimony of the agent and of the defendant himself indicate that the room over the tavern was a rather meagerly furnished affair with a bed" }, { "docid": "22445317", "title": "", "text": "2d 639. We brought the case here for clarification of the restrictions imposed by and the remedies open under the Trading with the Enemy Act. 342 U. S. 810. Accepting the allegations' as true for the purpose of dealing with the legal issues raised by the motions to dismiss, the situation before-us may be briefly stated. Guessefeldt, a German citizen, lived continuously in Hawaii from 1896 to 1938. In April of that year he took his family to Germany for a vacation. After the outbreak of war, he was unable to secure passage home before March, 1940, when his re-entry permit expired. When the United States entered the war,, he was involuntarily detained in Germany, first by the Germans and after 1945 by the Russians, until July, 1949, when he returned to this country. During that time he did nothing directly or indirectly to aid the war effort of the enemy. The first question to be decided is whether the claimant was “resident within” the territory of a nation with which this country was at war within the meaning of §§ 2 and 9 (a) of the Trading with the Enemy Act. He was physically within the enemy’s territory. He contends, however, that the meaning conveyed by “resident within” ■is something more than mere presence; at the least a. domiciliary connotation, if not domicile, is implied. ' Legislative history leaves the meaning shrouded. Some use of the term “domicile” as the touchstone of enemy status is to be found in the Congressional hearings and reports. But on the floor, Representative Montague, one of the managers of the bill, unequivocally stated underdose questioning that the statutory language was intended to cover much more than those domiciled in enemy nations. Yet prisoners of war, expeditionary forces arid “sojourners”, were not, he said, intended to be included. 55 Cong. Rec. 4922. Guessefeldt retained his American domicile. Moreover, if anything more than mere physical presence in enemy territory is required, it would seem clear that he was not an “enemy” within the meaning of § 2. His stay before the war, as a matter" }, { "docid": "21740546", "title": "", "text": "have been sustained. The Attorney General has pointed out, correctly, as we think, the distinction between a transient, resident, inhabitant with domicile, and a citizen or.subject, and the word “reside” has been interpreted as being something more than arriving at a place in travel or in pursuit of temporary objects. He has held that mere presence is not tantamount to residence under the statute, nor mere absence equivalent to residence elsewhere. - He correctly reached thé conclusion that the term “resident” or “residence” imports a fixed abode for the time being, as contradistinguished from a place of temporary sojourn, and that a mere transient is not a resident. See Opinions of Attorney General of April 27, 1922, claim of Oscar von Passavant; of May 18, 1921, claim of Otto Weber; of October 19, 1922, claim of Hans Goldschmidt; of October 21, 1921, claim of Paul Haberland; of June 17, 1921, claim of Hans Hohner; of December 2,1920, Jung claims. A merchant of Manila, Philippine Islands, was in Germany during the entire duration of the war, and his property in this country was seized by the Alien Property Custodian. On his return to the United States he made claim for the restoration of his property under section 9 of the act. The matter was referred to the Attorney General, who reported that he was entitled to the return of the property. His opinion is dated May 18, 1922, in the matter of claim No. 5869. After referring to certain authorities the opinion said: “In those eases the distinction between a transient, resident, inhabitant with domicile, and a citizen or subject was discussed, and the word ‘reside5 was interpreted as' being something more than arriving at a place in travel or in pursuit of temporary objects. Further, it was held that mere presence was not tantamount to residence under the statute nor mere absence equivalent to residence elsewhere. In short, it may be said that the conclusion to be reached from all of the above set out authorities is to the effect that the term ‘resident5 or ‘residence5 imports a fixed abode" }, { "docid": "15690645", "title": "", "text": "Not until six years after his return was he adjudged an incompetent, and then only as to his property. This holding opens distinct possibilities as to means of retaining not merely American citizenship, but American residence for many years after actual\" residence in a country now our enemy. For example, consider a person caught abroad by the depression without means to return; does he not come within the ruling? I do not think this case is like that of “transients,” such as prisoners of war or other quite temporary visitors. Stadtmuller v. Miller, 2 Cir., 11 F.2d 732, 45 A.L.R. 895. The result here appears to flow from two premises, neither of which should be accepted in my judgment. The first is the effectiveness of the adjudication of incompetency (not of commitment) in the New York courts. Had this adjudication not existed, I doubt if Cerutti’s Italian actual residence would have been questioned. But as properly pointed out, this adjudication is not legally binding. It should not be made so practically, having in mind the obvious different setting and purpose of the state proceeding. The second is that under the circumstances Cerutti’s New York property could not be subjected to enemy uses or enhance the ability of this country to prosecute the war. Passing the point that we cannot know this by any direct evidence of record, I think the whole purpose of the legislation may be frustrated if courts attempt to decide the validity of seizure upon the equities of individual cases. If we are unwilling to declare the invalidity of this war statute as a whole, we are not at liberty to set it aside in particular cases. This is a stern measure, so much so that probably Congress, as before, will be induced to take action for a return in part, if not in whole, of the seized property. But we should not try to anticipate such general legislation by special action in particular instances. I would affirm." }, { "docid": "23672231", "title": "", "text": "leave only the legal question whether she was “resident within” Germany. Citizenship is not directly involved. True it is that mere presence within enemy territory of an enemy national during hostilities is usually a prohibitive factor against the discretionary power of return granted the President or his delegate by Section 32(a). However, a court is required to return under Section 9(a) if the claimant be not an “enemy or ally of enemy,” which as defined by Section 2 includes “Any individual * * * of any nationality, resident within the territory * * * of any nation with which the United States is at war * * The two sections 9(a) and 32(a) are independent and exclusive of each other. The latter, we think, was added to serve the limited purpose of affording speedy administrative relief (when found by the Executive in the interest of the United States) to certain classes technically banned under Section 9(a), such as nationals of countries overrun by the enemy who remained loyal to the Allied Cause. Although, with certain exceptions, citizenship and presence within the territory of an enemy country bar relief under the discretionary Executive authority granted by Section 32(a), they, of themselves, do not bar recovery under Section 9(a). Vowinckel v. First Federal Trust Co., 9 Cir., 1926, 10 F.2d 19; Stadtmuller v. Miller, 2 Cir., 1926, 11 F.2d 732, 734, 45 A.L.R. 895. The provisions of that section, as concern the courts’ jurisdiction, remain unaffected by Section 32(a). In dealing with the Trading With the Enemy Act we must, as the Supreme Court says, endeavor to give all of it the most harmonious, comprehensive meaning possible. Clark v. Uebersee Finanz-Korp., 1947, 332 U.S. 480, 488, 68 S.Ct. 174, 92 L.Ed. 88. We recur then to the decisive question. Was appellee “resident within” Germany? If so, she became an enemy under Section 9(a) and would not be entitled to recover. The crucial term “resident within” has been interpreted in Josephberg v. Markham, 2 Cir., 1945, 152 F.2d 644, 648-649; Vowinckel v. First Federal Trust Co., supra, 10 F.2d at pages 20, 21;" }, { "docid": "21740524", "title": "", "text": "avoid results of this character. The reason of the' law in such cases should prevail over its letter.” To hold that Stadtmuller, detained in Germany against his will and loyal to the United States throughout the war, was nevertheless an enemy, whose property might be taken from him, is such an unreasonable and oppressive construction, and so repugnant to common sense, common justice, and common honesty, that we shall not so decide, unless compelled to do so. That the complainant’s domicile was in the United States at the time he left for his visit to Europe for a temporary purpose, and with the intention of returning to this country, will not be denied. He had resided here for more than 26 years, and had filed his application to become a citizen here, and had no intention of removing from this country to any other, and in fact returned to the United States as soon as he was permitted to leave Germany. In Kent’s Commentaries, vol. 1, p. 76, the rule is laid down as follows: “If the intention to establish a permanent residence be ascertained, the recency of the establishment, though it may have been for a day only, is immaterial. If there be no such intention and the residence be involuntary or constrained, then a residence, however long, does not change the original character of the party, or give him a new and hostile one.” In Boueicault v. Wood, 3 Fed. Cas. 988, No. 1,693, 2 Biss. 34, Judge Drummond stated the law as follows: “No person is entitled to the benefit of these acts unless he be, at the time of filing the title, a citizen of the United States, or a resident therein. Residence ordinarily means domicile, or the continuance of a man in a place, having his home there. * * * The main question is the intention with which he is staying in a particular place. * * * So if a person goes to a place with the intention of remaining for a limited time, although in point of fact he may remain for" }, { "docid": "23672232", "title": "", "text": "exceptions, citizenship and presence within the territory of an enemy country bar relief under the discretionary Executive authority granted by Section 32(a), they, of themselves, do not bar recovery under Section 9(a). Vowinckel v. First Federal Trust Co., 9 Cir., 1926, 10 F.2d 19; Stadtmuller v. Miller, 2 Cir., 1926, 11 F.2d 732, 734, 45 A.L.R. 895. The provisions of that section, as concern the courts’ jurisdiction, remain unaffected by Section 32(a). In dealing with the Trading With the Enemy Act we must, as the Supreme Court says, endeavor to give all of it the most harmonious, comprehensive meaning possible. Clark v. Uebersee Finanz-Korp., 1947, 332 U.S. 480, 488, 68 S.Ct. 174, 92 L.Ed. 88. We recur then to the decisive question. Was appellee “resident within” Germany? If so, she became an enemy under Section 9(a) and would not be entitled to recover. The crucial term “resident within” has been interpreted in Josephberg v. Markham, 2 Cir., 1945, 152 F.2d 644, 648-649; Vowinckel v. First Federal Trust Co., supra, 10 F.2d at pages 20, 21; Stadtmuller v. Miller, supra, 11 F.2d at pages 737-739, 45 A.L.R. 895, and Sarthou v. Clark, D.C.S.D.Cal.1948, 78 F.Supp. 139, 142. This last case epitomizes the several rulings in these words: ll * * * ‘resident within the territory’ as employed in the Act connotes something different from and more than living within the specified areas. It is rather indicative of a settled and permanent place of abode, volitionally acquired and voluntarily assumed. It is a habitation having domiciliary properties.” We agree with those- decisions. Adopting them as correctly interpreting the critical words before us, we find nothing in the facts to bring appellee within the statu tory category of \"resident within”' Germany, unless it be that marriage technically imposed upon her the residence or domicile of her husband. Otherwise the conclusion is irresistible that Mrs. Zander left the United States for a short stay in Germany with the definite intention of returning to her home in New Orleans, became an unwilling sojourner in Berlin, and was forced by the hard realities of war to" }, { "docid": "12020503", "title": "", "text": "being mostly a matter of intention, from the facts averred, it is clear that plaintiff never intended to change her established Chicago residence. The fact that she went to Japan in an attempt to discharge her parental duties does not negate the fact that her permanent residence was in Chicago and that her stay in Japan was for a limited period of time entailed by her praiseworthy sense of family obligation.. Permanent residence does not arise out of a transitory abode or out of a temporary sojourn in a place other than that of residence. We think the averments of fact here such that it can only be said that on the face of the complaint she was at all times a permanent resident of the City-of Chicago; that she never abandoned that residence and that, as such a resident of the United States, though an alien and at that time incapable of becoming naturalized, she was never within the definition of an enemy, — a “resident within” enemy territory. In McGrath v. Zander, 85 U.S. App.D.C. 334, 177 F.2d 649, 652, the Court of Appeals for the District of Columbia considered a similar situation with this conclusion: “The crucial term ‘resident within’ has been interpreted in Josephberg v. Markham, 2 Cir., 1945, 152 F.2d 644, 648-649; Vowinckel v. First Federal Trust Co., supra [9 Cir.], 10 F.2d [19] at pages 20, 21; Stadtmuller v. Miller, supra [2 Cir.], 11 F.2d [732] at pages 737-739, 45 A.L.R. 895, and Sarthou v. Clark, D.C.S.D.Cal. 1948, 78 F.Supp. 139, 142. This last case epitomizes the several rulings in these words: ‘ * * * “resident within the territory” as employed in the Act connotes something different from and more than living within the specified areas. It is rather indicative of a settled and permanent place of abode, volitionally acquired and voluntarily assumed. It is a habitation having domiciliary properties.’ ” We agree with what was said by that court and with the other decisions cited and conclude that there is nothing in the averments of fact justifying a conclusion of fact that" }, { "docid": "12020504", "title": "", "text": "U.S. App.D.C. 334, 177 F.2d 649, 652, the Court of Appeals for the District of Columbia considered a similar situation with this conclusion: “The crucial term ‘resident within’ has been interpreted in Josephberg v. Markham, 2 Cir., 1945, 152 F.2d 644, 648-649; Vowinckel v. First Federal Trust Co., supra [9 Cir.], 10 F.2d [19] at pages 20, 21; Stadtmuller v. Miller, supra [2 Cir.], 11 F.2d [732] at pages 737-739, 45 A.L.R. 895, and Sarthou v. Clark, D.C.S.D.Cal. 1948, 78 F.Supp. 139, 142. This last case epitomizes the several rulings in these words: ‘ * * * “resident within the territory” as employed in the Act connotes something different from and more than living within the specified areas. It is rather indicative of a settled and permanent place of abode, volitionally acquired and voluntarily assumed. It is a habitation having domiciliary properties.’ ” We agree with what was said by that court and with the other decisions cited and conclude that there is nothing in the averments of fact justifying a conclusion of fact that plaintiff was “resident within” Japan. However, this conclusion is not entirely decisive of the questioned correctness of the judgment of the District Court. Upon the outbreak of the war in 1941, Congress by the First War Powers Act, immediately granted power to the President to vest the property of alien “nationals.” However, it did not repeal Sections 2 and 9(a). As a consequence, the vesting power of the President was extended to the property of nationals but the right to sue for return, Section 9(a), still ran to nonenemies. This situation was considered by the Supreme-Court in Clark v. Uebersee Finanz-Korporation, A.G., 332 U.S. 480, 68 S.Ct. 174, 176, 92 L.Ed. 88. After commenting that Section 5(b) of the Act of 1941 granted the President the power to vest any property of any foreign country or national thereof, the court continued: “While the-scope of the President’s power was broadened, there was no amendment restricting the scope of § 9(a). As we have noted, § 9(a) granted ‘any person not an enemy or ally of enemy,’" }, { "docid": "7366708", "title": "", "text": "order whose execution had been stayed because of war conditions. Under such circumstances, the court concluded that although “during all of the time here in question she was physically present in the United States, * * * mere physical presence in a foreign country, even though it is considerably prolonged, is not of itself sufficient to establish residence.” Id. 11 T.C. at pages 42-43. The Tax Court’s reasoning is persuasive because of the similarity in origin of the obligation to pay taxes and the obligation of military service. Both inhere in the allegiance owed to a protecting sovereign. Appellant’s lack of choice is further illustrated by the fact that even voluntary departure pursuant to the deportation order was unavailable to him because Denmark was under German occupation. Under similar facts, a person who left the United States to travel in Germany and was caught there by the course of war, was held not to be “resident within” Germany within the meaning of the Trading with the Enemy Act, 50 U.S.C.A.Appendix, § 1 et seq. McGrath v. Zander, 1949, 85 U.S.App.D.C. —, 177 F.2d 649; Stadtmuller v. Miller, 2 Cir., 1926, 11 F.2d 732, 45 A.L.R. 895. In all the cases involving liability for military service under § 3(a) of the Selective Training and Service Act which have come to our attention, the aliens held to be “residing in the United States” had lived in this country for long periods of time, were not here under temporary visitor’s visas, and no deportation orders were involved. The only case holding that a “temporary visitor” is “residing in the United States” within the terms of § 3(a) is Benzian v. Godwin, 2 Cir., 1948, 168 F.2d 952, certiorari denied 1948, 335 U.S. 886, 69 S.Ct. 235, in which no deportation order had been issued. Judge Frank, speaking for the court, held that when Congress amended STSA § 3(a) in 1941 to make liable for service “all male persons residing in the United States,” it adopted the Attorney General’s construction of that phrase as previously used in § 2 in connection with persons subject" } ]

[ { "docid": "3911069", "title": "", "text": "that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(e). The nonmovant must rebut such a showing by presenting sufficient evidence on which the jury could reasonably find for him; “[a] mere scintilla of evidence is insufficient” tó meet this burden. McLean, 224 F.3d at 800. “In deciding a motion for summary judgment, this court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party.” Id. Section 1983 creates a federal cause of action against state or local officials who deprive a person of a federal right while acting under the color of state law. 42 U.S.C. § 1983. To prevail in a § 1983-suit against a municipality, a plaintiff must show that the alleged federal right violation occurred because of a municipal policy or custom. Monell v. Dep’t of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A municipality “may not be sued under § 1983 for an injury inflicted solely by its employees or agents.” Id. There are at least four avenues a plaintiff may take to prove the existence of a municipality’s illegal policy or custom. The plaintiff can look to (1) the municipality’s legislative enactments or official agency policies; (2) actions taken by officials with final decision-making authority; (3) a policy of inadequate training or supervision; or (4) a custom of tolerance or acquiescence of federal rights violations. Id.; Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir.1997); Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir.1996). In the present case, the Thomases alleged that the City of Chattanooga had an unwritten policy, practice, or custom of condoning the use of excessive force against potential suspects. In Doe, this Court articulated the requirements for a municipal liability claim made on the basis of an “inaction theory,” where a policy of tolerating federal rights violations is unwritten but nevertheless' entrenched. We stated that, -under such a theory, the plaintiff" } ]

[ { "docid": "12656168", "title": "", "text": "reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Id. B. MUNICIPAL LIABILITY “Municipalities [are] liable under § 1983 to be sued as ‘persons’ within the meaning of that statute, when the alleged unlawful action implemented or was executed pursuant to a governmental policy or custom.” Reynolds v. Giuliani 506 F.3d 183, 190 (2d Cir.2007) (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 691, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). “In order to prevail on a claim against a municipality under section 1983 based on acts of a public official, a plaintiff is required to prove: (1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy [or custom] of the municipality caused the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir.2008) (citing Monell, 436 U.S. at 690-91, 98 S.Ct. 2018). “The fifth element — the ‘official policy’ element — can only be satisfied where a plaintiff proves that a ‘municipal policy of some nature caused a constitutional tort.’ ” Id. (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018). “[A] municipality may not be found liable simply because one of its employees committed a tort .... [and] a municipality cannot be made liable under § 1983 for acts of its employees by application of the doctrine of respondeat superior.” Id. (internal citation and quotation marks omitted). The Plaintiffs argue that the members of the City’s police force became intoxicated and accosted civilians in such a persistent and widespread manner that their conduct constitutes a custom about which the City should have had constructive notice. To support this argument, the Plaintiffs cite to a ease, Galazo v. City of Waterbury, 303 F.Supp.2d 213 (D.Conn.2004), which had been assigned the undersigned. In Galazo, the plaintiff, who worked at a bar in Waterbury, was involved in an altercation with some off-duty Waterbury police officers and arrested. See id. at 215. It did not appear that the plaintiff had instigated the altercation. See" }, { "docid": "16190491", "title": "", "text": "— all officers of the City of Lansing Police Department — because these claims are properly brought against the City of Lansing itself. Unlike individual capacity suits, which seek to impose personal liability upon a government official for actions he takes under color of state law, official capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978). “As long as the government entity receives notice and an opportunity to respond, an official capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) (citing Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985)). “It is not a suit against the official personally, for the real party in interest is the entity.” Kentucky v. Graham, 473 U.S. at 166, 105 S.Ct. at 3105. The Court concludes that any official capacity claims Plaintiffs bring against the police officers are claims against the City of Lansing and should be dismissed with respect to the officers themselves. (4)Section 1983 Claims Against City of Lansing Defendants argue that the § 1983 claims against the City of Lansing must be dismissed because Plaintiffs cannot present evidence that the alleged violations of constitutional rights resulted from a policy, custom, or failure to train. A municipality cannot be held liable under § 1983 for the acts of its employees solely on a respondeat superior theory. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Vicarious liability attaches to the municipality only when the municipality itself causes the constitutional violation at issue, which occurs when the harm results from the municipality’s policy or custom. See id. at 694, 98 S.Ct. at 2037-38 (“[I]t is when execution of a government’s policy or" }, { "docid": "12726988", "title": "", "text": "both Mayor Giuliani and Commissioner Scoppetta in their official capacities. Because the individual defendants are sued only in their official capacities, the claims against all defendants are properly analyzed under a theory of municipal liability. See, e.g., Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (stating that “official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent”). In Monell, the Supreme Court held that local governments are not wholly immune from suit under § 1983. Id. at 663, 98 S.Ct. 2018. They can be sued directly under § 1983 for monetary, declaratory, or injunctive relief, where the alleged unconstitutional action implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. See, e.g., id. at 690, 98 S.Ct. 2018; Tenenbaum v. Williams, 193 F.3d 581, 597 (2d Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1832, 146 L.Ed.2d 776 (2000); Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.1996). The Supreme Court also determined that municipalities may be held liable for “constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. Subsequent cases have interpreted Monell to mean that in order to state a claim for municipal liability under § 1983, plaintiffs must plead and eventually prove three elements: (1) that an official policy or custom is in place; (2) that there is a causal link between plaintiffs’ alleged constitutional injury and the policy or custom; and (3) that plaintiffs in fact suffered a constitutional injury. See Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) (citations omitted). The Court finds that plaintiffs have pleaded municipal liability under § 1983. They mount a direct challenge to the “proclaimed policy” of ACS, an agency of the City of New York, under which ACS resolves any ambiguity regarding the safety of a child in favor of removal. See" }, { "docid": "23135106", "title": "", "text": "Will v. Michigan Dep’t of State Police, — U.S. at-, 109 S.Ct. at 2311. The dismissal of claims against state officials acting in their official capacities was also proper under the jurisdictional bar of the Eleventh Amendment, although these officials may be sued in their individual capacities. C. Municipal Defendants Municipal entities do not enjoy absolute immunity under the Eleventh Amendment. It appears that the Department of Social Services for the City of Baltimore is not a state agency, but rather, is a municipal entity. However, municipal entities are liable under § 1983 only if “action pursuant to official municipal policy of some nature caused a constitutional tort.” Monell v. New York Dep’t of Social Sens., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). A municipality may not be sued under § 1983 on a respondeat superior theory. Id. In this case, the complaint is replete with allegations that BCDSS’s actions were undertaken in clear violation of official policy but there are no allegations that the acts were pursuant to usage, custom, or official municipal policy. Therefore, no claim is stated against BCDSS under 42 U.S.C. § 1983. In addition, plaintiff cannot rely on federal jurisdiction under § 1331 for a due process claim against the City of Baltimore. There is no implied cause of action against a municipality for damages under the Fourteenth Amendment for the acts of its employees, and there is no alternative basis for any federal claim against BCDSS. Cale v. City of Covington, 586 F.2d 311 (4th Cir.1978). Therefore, we uphold the dismissal of all claims against BCDSS and the officials of that agency acting in their official capacities under Fed.R.Civ.P. 12(b)(6). The officials may be sued individually. D. Individual Government Defendants Qualified immunity shields from civil damages liability government officials performing discretionary functions so long as the officials’ conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The principle of qualified immunity reflects the concern that" }, { "docid": "20122729", "title": "", "text": "official capacity as Lieutenant of the Norfolk Police Department. Suing a governmental official in his or her official capacity is essentially the same as suing the government itself. See Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (“Official capacity suits ... generally represent only another way of pleading an action against an entity of which an officer is an agent.”) (citations omitted). Therefore, when the plaintiffs name Brewer “officially,” they in fact are suing the City of Norfolk, or the Norfolk Police Department. As a result, this Court must determine whether the plaintiffs can maintain their claims as claims against the municipality. Under Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), it is established that municipalities cannot be held liable pursuant to respondeat superior for the constitutional violations of their employees. Id. at 692-94, 98 S.Ct. 2018. Instead, to establish municipal liability it must be shown that the city policy is at the crux of the injury alleged. Id. at 694, 98 S.Ct. 2018. Municipal policies can be either formal or informal. Edwards v. City of Goldsboro, 178 F.3d at 244 (citing Spell v. McDaniel, 824 F.2d 1380, 1385 (4th Cir.1987), cert denied, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988)). Under certain circumstances, a municipal policy may be shown by a single decision by a municipal policy maker. Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). In a case such as this, the plaintiffs must show that there is a municipal policy or custom instituted by the City which caused their injuries. Additionally, the plaintiffs must establish an affirmative link between the alleged municipal policy and the allegedly abridged constitutional rights. Monell, 436 U.S. at 694, 98 S.Ct. 2018. A Whether Brewer is an Official Policy Maker As an initial matter, in support of his motion to dismiss, Brewer argues that he is not the proper party to represent the City of Norfolk or any other official entity in this" }, { "docid": "22326397", "title": "", "text": "(claim against a municipal employee in his official capacity is deemed brought against the municipality itself~l-the plaintiff is required to show that the challenged acts were performed pursuant to a municipal policy or custom, see, e.g., Jett v. Dallas Independent School District, 491 U.S. at 733-36, 109 S.Ct. 2702, (§ 1981); Monell v. Department of Social Services, 436 U.S. 658, 692-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (§ 1983). To show a policy, custom, or practice, the plaintiff need not identify an express rule or regulation. See, e.g., Sorlucco v. New York City Police Department, 971 F.2d 864, 870 (2d Cir.1992). It is sufficient to show, for example, that a discriminatory practice of municipal officials was so \"persistent or widespread\" as to constitute \"a custom or usage with the force of law,\" id. at 870-71 (inteinal quotation marks omitted), or that a discriminatory practice of subordinate employees was \"so manifest as to imply the constructive acquiescence of senior policy-making officials,\" id. at 871; see, e.g., Gierlinger v. New York State Police, 15 F.3d at 34 (\"Section 1983 liability can be imposed upon individual employers, or responsible supervisors, for failing properly to investigate and address allegations of sexual harassment when through this failure, the conduct becomes an accepted custom or practice of the employer.\"). A policy, custom, or practice may also be inferred where \"the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.\" Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir.1996), cert. denied, 520 U.S. 1155, 117 S.Ct. 1335, 137 L.Ed.2d 494 (1997) (internal quotation marks omitted). Liability of a municipal defendant or an individual sued in his official capacity under § 1981 and § 1983 cannot, however, be premised on a theory of respondeat superior. See, e.g., Jett, 491 U.S. at 733-36, 109 S.Ct. 2702 (§ 1981); Monell, 436 U.S. at 690-91, 98 S.Ct. 2018 (§ 1983). Third, although as discussed in Part II.B.2. above, Title VII claims are not cognizable against individuals, individuals may be held liable under §§ 1981 and" }, { "docid": "11539158", "title": "", "text": "others to do the unlawful acts, even if he or she does not commit the acts personally.” Terebesi v. Torreso, 764 F.3d 217, 234 (2d Cir.2014). Thus, even if Kralik had been properly served in his individual capacity, the record is not sufficient to support Plaintiffs § 1983 claim against him. See, e.g., Armstrong v. Metro. Transp. Auth., No. 07-CV-3561, 2014 WL 4276336, at *26 (S.D.N.Y. Aug. 28, 2014) (dismissing the plaintiffs § 1983 claim against the defendants in their individual capacities where “nothing in the record” suggests that the defendants were personally involved in the conduct forming the basis for the plaintiffs claim). 2. Monell Liability Plaintiffs remaining claims are against the Rockland County and against Kralik in his official capacity, which is tantamount to a claim against the municipality itself. See Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir.2012) (“A claim asserted against an individual in his official capacity ... is in effect a claim against the governmental entity itself ... for ‘official-capacity suits generally represent only another way of pleading an action' against an entity of which an officer is an agent.’” (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978))). Plaintiffs Complaint asserts a cause of action solely pursuant to 42 U.S.C. § 1983. (See Compl. ¶ 20.) The law of the Second Circuit is clear that “local governing bodies ... may be sued directly under § 1983 only where a violation of rights resulted from the government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Fierro v. N.Y.C. Dep’t of Educ., 994 F.Supp.2d 581, 588 (S.D.N.Y.2014) (internal quotation marks omitted) (quoting Nagle v. Marron, 663 F.3d 100, 116 (2d Cir.2011)). Rather than engage with Defendants’ contention that Plaintiff has not demonstrated the existence of a Rockland County policy or custom sufficient to provide grounds for Monell liability, Plaintiffs Memorandum in Opposition makes the bold argument that a provision of the County’s charter obviates the need to" }, { "docid": "1025985", "title": "", "text": "county. Thus, the official capacity claims against him must be dismissed. Wooten v. Logan, 92 Fed.Appx. 143, 145-47 (6th Cir.2004) (holding that a rape committed by a county sheriff could not be considered part of the county’s “policy or custom” and thus affirming district court’s dismissal of claims against the county). Doe also has not offered any evidence or otherwise demonstrated that Patton was responsible for setting county policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). B. Magoffin County & Salyer’s Motion [Record No. 112] 1. Section 1983 Claims Magoffin County and Salyer (the “County Defendants”) make numerous arguments regarding vicarious liability, sovereign immunity, official immunity, and qualified official immunity with regard to Doe’s 1983 claims. The Court, however, will confine its discussion to relevant Supreme Court cases which establish the requirements for a plaintiff to bring a successful § 1983 claim against a local government for negligent hiring. The discussion must begin by noting that the County Defendants cannot be vicariously liable for Patton’s alleged acts. As the Supreme Court has noted: [i]n Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), we decided that a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983. Id., at 694-695, 98 S.Ct. 2018. “It is only when the ‘execution of the government’s policy or custom ... inflicts the injury’ that the municipality may be held liable under § 1983.” Springfield v. Kibbe, 480 U.S. 257, 267, 107 S.Ct. 1114, 94 L.Ed.2d 293 (1987) (O’Connor, J., dissenting) (quoting Monell, [436 U.S.] at 694, 98 S.Ct. 2018). Thus, our first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (emphasis in original). The Sixth" }, { "docid": "11520033", "title": "", "text": "that plaintiffs malicious prosecution against defendant Lemma survives summary judgment, the Court must determine whether the County can be held liable under Section 1983. The County defendants move to dismiss the Section 1983 claims against the County on the basis that plaintiff has failed to establish the existence of any municipal policy or custom that caused plaintiffs alleged civil rights violations. For the reasons that follow, the Court concludes that there is a genuine issue of fact as to the County’s alleged failure to train and/or supervise Det. Lemma that precludes summary judgment on the municipal liability claim. The Supreme Court has explained that a municipal entity may be held liable under Section 1983 where a plaintiff demonstrates that the constitutional violation complained of was caused by a municipal “policy or custom.” Monell v. Dep’t of Social Servs. of N.Y.C., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “The policy or custom need not be memorialized in a specific rule or regulation.” Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir.1996) (citing Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 870 (2d Cir.1992)). Instead, constitutional violations by government officials that are “persistent and widespread” can be “so permanent and well settled as to constitute a custom or usage with the force of law, and thereby generate municipal liability.” Sorlucco, 971 F.2d at 870-71 (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018) (internal quotation marks omitted). Moreover, a policy, custom, or practice of the entity may be inferred where “ ‘the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.’ ” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir.2004) (quoting Kern, 93 F.3d at 44). However, a municipal entity may be held liable only where the entity itself commits a wrong; “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691, 98 S.Ct. 2018. In his memorandum opposing summary judgment for the County, plaintiff rests his claim of municipal" }, { "docid": "6312842", "title": "", "text": "supervisory capacity and that “official inaction” is insufficient to impose liability under § 1983. Although “mere failure to supervise is not a basis for liability under § 1983,” liability will result “if delinquent supervision is so severe as to amount to gross negligence or deliberate indifference to constitutional violations.” Fernandez v. Chardon, 681 F.2d 42, 56 (1st Cir.1982), aff'd, 462 U.S. 650, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983); see Estate of Gilmore v. Buckley, 608 F.Supp. 554, 558 (D.Mass. 1985) (supervisory officials may be held responsible for constitutional deprivations by subordinates to which they are “deliberately indifferent”). On the basis of the allegations in the complaint, the Court cannot conclude that “it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Limerick v. Greenwald, 666 F.2d at 735 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). C. The Town of Falmouth In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities may be sued directly under § 1983 for constitutional deprivations inflicted pursuant to a governmental custom, policy, ordinance, regulation, or decision. Id. at 690-91, 98 S.Ct. at 2035-36. A city may not be held liable for the actions of its employees or agents under a theory of respondeat superior, but instead is liable only where there is a causal link between an official policy or custom and the plaintiffs injury. Id. at 694, 98 S.Ct. at 2037. Thus, to hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right. Batista v. Rodriguez, 702 F.2d 393, 397 (2nd Cir.1983). The complaint alleges that certain defendants were responsible for establishing and enforcing policies of the Falmouth Police Department, that the defendants failed to provide adequate, monitored facilities to protect" }, { "docid": "16575647", "title": "", "text": "his individual capacity is DISMISSED. 7. Liability of the City and Simmons in his Official Capacity. Plaintiff alleged in his complaint that the City had a policy, custom, or practice of hiring unqualified persons, such as the individual defendants, as police officers; failing to provide adequate and proper training to police officers; and permitting the use of excessive force. The issue of Simmons’s liability in his official capacity will be decided by the determination of the issue concerning the City’s liability, as a § 1983 action against a municipal official in his official capacity is to be treated as an action against the municipality itself. See Barber v. City of Salem, Ohio, 953 F.2d 232, 237 (6th Cir.1992). Local governments are considered “persons” for purposes of § 1983. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000). The Supreme Court has held that “a plaintiff seeking to impose liability on a municipality under § 1983 [must] identify a municipal ‘policy’ or ‘custom’ that caused the plaintiffs injury.” Board of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2027, 56 L.Ed.2d 611 (1978); Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 1298-99, 89 L.Ed.2d 452 (1986); and City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989)). The finding of a policy or custom is the initial determination to be made by the trial court in a municipal liability claim. If the plaintiff presents sufficient evidence to demonstrate a genuine issue of material fact as to the existence of a policy or custom, then it is for the finder of fact to determine deliberate indifference. Doe v. Claiborne County, Tenn., 103 F.3d 495, 509 (6th Cir.1996) (citing Hicks, 992 F.2d at 1456-57). The Sixth Circuit has instructed that [i]t is firmly established that a municipality .., cannot be held liable under § 1983 for an injury inflicted solely by its employees or agents." }, { "docid": "474637", "title": "", "text": "that a liberty interest exists and then that the liberty interest was infringed upon. Workman v. Jordan, 32 F.3d 475, 480 (10th Cir.1994). The defendants took no adverse action against plaintiff as a result of the KBI investigation. Therefore, plaintiff has not raised any due process concerns. Because the' individual defendants did not violate plaintiffs constitutional rights, the individual defendants’ motion is granted with respect to plaintiffs § 1983 claim, and the court need not address the issue of qualified immunity. 2. Claims Against the City of Liberal In Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court found that “Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies.” Id. at 690, 98 S.Ct. 2018. “Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief.” Id. (footnote omitted). In Monell, the Supreme Court found that a municipality cannot be liable under § 1983 solely because it employs a tortfeasor, ie., a municipality cannot be held liable on a respondeat superior theory. Id. at 691, 98 S.Ct. 2018. “Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694, 98 S.Ct. 2018. Therefore, in order for the City of Liberal to be liable under § 1983, plaintiff “must show (1) the existence of a municipal custom or policy and (2) a direct causal link between the custom or policy and the violation alleged.” Jenkins v. Wood, 81 F.3d 988, 993 (10th Cir.1996) (citing City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Because the court has determined plaintiff suffered no deprivation of constitutional rights, it is unnecessary to determine whether the City had a custom or policy of racial discrimination. Therefore, the City is entitled to summary judgment on" }, { "docid": "2773677", "title": "", "text": "Colaprico v. Sun Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D.Cal.1991) (citation omitted). D. 42 U.S.C. § 1983 “Section 1983 provides for liability against any person acting under color of law who deprives another ‘of any rights, privileges, or immunities secured by the Constitution and laws’ of the United States.” S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir.2003) (quoting 42 U.S.C. § 1983). 1. Suits Against Local Governments: The Monell Doctrine. Local governments are “persons” subject to suit for “constitutional tort[s]” under 42 U.S.C. § 1983. Haugen v. Bros seau, 339 F.3d 857, 874 (9th Cir.2003) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). “[T]he legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies.” Monell, 436 U.S. at 690, 98 S.Ct. 2018. Local governments can be sued for monetary, declaratory, or injunctive relief where such suits arise out of unconstitutional actions that implement or execute a “policy statement, ordinance, or decision officially adopted and promulgated by that body’s officers.... ” Id. 690-1, 98 S.Ct. 2018. If no official policy exists, “customs and usages” may fulfill this element of a § 1983 claim against a local government. Id. A local government’s liability is limited, however. Although a local government can be held liable for its official policies or customs, it will not be held liable for an employee’s actions outside of the scope of these policies or customs. “A municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691, 98 S.Ct. 2018. “A local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its law-makers or by those whose edicts or" }, { "docid": "10690513", "title": "", "text": "allegations, and Defendants will have the opportunity to address again at the summary judgment stage the question of whether Plaintiffs can actually prove constitutional violations. (5) Whether Plaintiffs Have Stated Valid Claims for Constitutional Violations Against the Sumner County Board of Education The Supreme Court has held that municipalities and local government entities are “persons” within the meaning of § 1983 and may be sued for relief under the statute. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, a municipality may not be held liable under § 1983 under a theory of respondeat superior. Bennett v. City of Eastpointe, 410 F.3d 810, 818 (6th Cir.2005) (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018). Rather, in order to state a civil rights claim against a local governmental entity such as a school board, a plaintiff must establish that (1) she suffered a deprivation of a constitutionally protected interest; and (2) the deprivation was actually caused by an official policy, custom or usage of the local governmental entity. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see id. at 690, 98 S.Ct. 2018 (stating a municipality may be held liable only “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury”). The Supreme Court has indicated that a “custom,” to qualify as such, must “be so permanent and well settled as to constitute a custom or usage with the force of law.” Monell, 436 U.S. at 691, 98 S.Ct. 2018. The Sixth Circuit has recognized that “[tjhere are at least four avenues a plaintiff may take to prove the existence of a municipality’s illegal policy or custom. The plaintiff can look to (1) the municipality’s legislative enactments or official agency policies; (2) actions taken by officials with final decision-making authority; (3) a policy of inadequate training or supervision; or (4) a custom of tolerance or acquiescence of federal rights violations.” Thomas" }, { "docid": "16719605", "title": "", "text": "F.3d 375, 387 (6th Cir.1994), the Court cannot determine, as a matter of law, that qualified immunity does not attach. If a jury finds that Officer Kovach’s view of the facts is correct, and no constitutional violation occurred, qualified immunity may shield Officer Kovach from any liability for Ms. Gill’s alleged injuries. B. Claims Against the City, Chief Mandopoulos and Mr. Franklin Ms. Gill has also sued the City, Chief Mandopoulos, and Mr. Franklin in their official capacities. As a rule, local governments may not be sued under 42 U.S.C. § 1983 for an injury inflicted solely by employees or agents under a theory of respondeat superior. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “Instead, it is when the execution of a government’s policy or custom ... inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694, 98 S.Ct. 2018; DePiero v. City of Macedonia, 180 F.3d 770, 786 (6th Cir.1999). Moreover, the policy or custom must be the moving force of the constitutional violation in order to establish municipal liability. Monell, 436 U.S. at 690, 98 S.Ct. 2018. Liability against a municipality is available pursuant to multiple theories. See id. at 660-61, 98 S.Ct. 2018 (an express municipal policy); City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (a “widespread practice that, although not authorized by written law or express municipal policy, is ‘so permanent and well settled as to constitute a custom or usage’ with the force of law”); City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (a failure to act where the “inadequacy [of the existing practice is] so likely to result in the violation of constitutional rights, that the policymaker ... can reasonably be said to have been deliberately indifferent to the [plaintiffs rights]”); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1247 (6th Cir.1989) (a ratification of a municipal employee’s unconstitutional acts by failing to meaningfully investigate and punish allegations of" }, { "docid": "22786028", "title": "", "text": "on the ground of qualified immunity for this section 1983 claim regarding racial harassment and dis crimination, such a ruling clearly would have been erroneous. B. Section 1983 & official capacity liability In contrast to individual capacity suits, when an officer is sued under Section 1983 in his or her official capacity, the suit is simply “ ‘another way of pleading an action against an entity of which an officer is an agent.’ ” Kentucky v. Graham, 473 U.S. at 165, 105 S.Ct. at 3105 (citing Monell v. Department of Social Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978)). Such suits against municipal officers are therefore, in actuality, suits directly against the city that the officer represents. See id. 473 U.S. at 165-66, 105 S.Ct. at 3105; Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 877-78, 83 L.Ed.2d 878 (1985); Monell, 436 U.S. at 691, 98 S.Ct. at 2036; Farred v. Hicks, 915 F.2d 1530, 1532 (11th Cir.1990). Consequently, a plaintiff cannot rely on a respondeat superior theory to hold a municipality liable for individual actions of its officers. Monell, 436 U.S. at 691, 98 S.Ct. at 2036; Hearn v. City of Gainesville, 688 F.2d 1328, 1334 (11th Cir.1982). “[A] municipality cannot be held liable solely because it employs a tortfeasor.” Monell, 436 U.S. at 691, 98 S.Ct. at 2036 (emphasis in original). Instead, in order to recover against a municipality, a plaintiff must establish that the alleged racial discrimination or harassment occurred pursuant to a custom or policy of the municipality. Id. at 694, 98 S.Ct. at 2037; Gilmere v. City of Atlanta, 774 F.2d 1495, 1503 (11th Cir. 1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986); Hearn, 688 F.2d at 1334. Because suits against a municipal officer sued in his official capacity and direct suits against municipalities are functionally equivalent, there no longer exists a need to bring official-capacity actions against local government officials, because local government units can be sued directly (provided, of course, that the public entity receives notice and" }, { "docid": "15213804", "title": "", "text": "Furthermore, the Complaint contains no allegations of wrongdoing against Cook County, the Office of the Chief Judge, or the Office of the Independent Inspector General. Thus Williams’s § 1981 claims against these defendants must also be dismissed. Williams’s constitutional claims against the County Defendants, including the Probation Department, must also be dismissed because Williams does not allege that any of the County Defendants’ policies or customs caused her constitutional injury. To bring a § 1981 or § 1983 claim against a state actor, government entity, or municipality, a plaintiff must establish municipal liability as articulated Monell v. Department of Soc. Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See Jett v. Dallas Independent Sch. Dist., 491 U.S. 701, 731-34, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) (holding as a matter of statutory interpretation that § 1983 is the exclusive remedy in damages suits against state employees for § 1981 violations and that Monell applies); Smith v. Chicago School Reform Bd. of Trustees, 165 F.3d 1142, 1148 (7th Cir.1999) (finding “Recovery under § 1981 ... problematic” where “although the accused perpetrators of discrimination are teachers and administrators at the schools where [the plaintiff] worked, the only defendant is the School Board, an agency of municipal government — and recovery against a governmental body under § 1981 may not be based on respondeat superior”); see also Everson v. City of Madison, 672 F.Supp.2d 881, 882 (W.D.Wis.2009) (“Under Title VII, an employer may be held liable using traditional agency principles, but under :§ 1983 the plaintiff must show that the employer’s own unconstitutional actions caused the plaintiffs harm.”) (citing Phelan v. Cook County, 463 F.3d 773, 788-89 (7th Cir.2006)). The same rule applies to any claims Williams seeks to bring against Rohan in his official capacity as the Probation Department’s Chief Executive Officer. Holloway v. Delaware County Sheriff, 700 F.3d 1063, 1071 (7th Cir.2012) (“Holloway sued the Sheriff in his official capacity, which is effectively the same as having brought suit against the County of Delaware itself.”) As Williams has not alleged a Monell claim, she cannot proceed under" }, { "docid": "8051554", "title": "", "text": "addition, Plaintiff alleges throughout his Amended Complaint and motion papers that the handbilling ban at the 2009 Festival was selectively enforced by Dearborn police officers. Although the parties do not explicitly acknowledge it as such, the selective enforcement claim constitutes a municipal liability claim. Three general rules govern a municipal liability claim. First, “a municipality cannot be held liable [under § 1983] solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In other words, a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Id. at 694, 98 S.Ct. 2018. Second, “[a] local government entity violates § 1983 where its official policy or custom actually serves to deprive an individual of his or her constitutional rights.” Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir.2006). Third, “[t]he burden of proof is on the plaintiff to set forth the unconstitutional policy and link it with both the municipality and the injuries at issue.” King v. City of Eastpointe, 86 Fed.Appx. 790, 801 (6th Cir.2003) (unpublished). The Supreme Court has explained why a plaintiff seeking to impose liability on a municipality under § 1983 must identify a municipal “policy” or “custom” that caused injury: Locating a “policy” ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality. Similarly, an act performed pursuant to a “custom” that has not been formally approved by an appropriate decision-maker may fairly subject a municipality to liability" }, { "docid": "11290507", "title": "", "text": "adequate state law remedy for malicious prosecution bars federal claim). It is an issue, however, that is not currently before me. Defendants’ motion asks the Court to determine solely whether, assuming that Randy Britton’s rights were violated by certain Boston police officers, plaintiffs’ have alleged sufficient facts to find the moving defendants liable as a result. Claims against a public official in his or her official capacity are treated as claims against the public entity he or she represents. Kentucky v. Graham, 473 U.S. 159, 165-166, 105 S.Ct. 3099, 3104-3105, 87 L.Ed.2d 114 (1985). Thus, the claims against Flynn and Roache in their official capacities are, in effect, claims against the City of Boston. See Stratton v. City of Boston, 731 F.Supp. 42, 46 (D.Mass.1989). By contrast, a claim against Roache in his individual capacity entails the showing of “an affirmative link” between his conduct and that of the lower ranking officers who allegedly violated Brit-ton’s constitutional rights. See Voutour v. Vitale, 761 F.2d 812, 819-820 (1st Cir.1985) cert. den. 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986). 1. Claims Against the City of Boston a. Principles of Municipal Liability In the landmark case of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held for the first time that municipalities could be sued under Section 1983. The Court went on to say, however, that the common law doctrine of respondeat superior, whereby employers are held vicariously liable for the wrongful acts of their employees, is not applicable to such actions. Monell, 436 U.S. at 692, 98 S.Ct. at 2036. Rather, a municipality may be liable under Section 1983 only if there is a showing that a “policy or custom” of the municipality caused a constitutional tort. Monell, 436 U.S. at 694, 98 S.Ct. at 2037. As with any other tort claim, there must be a showing in a Section 1983 action of “a direct causal link” between the municipal policy or custom and the alleged constitutional deprivation. Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197," }, { "docid": "16190492", "title": "", "text": "entity.” Kentucky v. Graham, 473 U.S. at 166, 105 S.Ct. at 3105. The Court concludes that any official capacity claims Plaintiffs bring against the police officers are claims against the City of Lansing and should be dismissed with respect to the officers themselves. (4)Section 1983 Claims Against City of Lansing Defendants argue that the § 1983 claims against the City of Lansing must be dismissed because Plaintiffs cannot present evidence that the alleged violations of constitutional rights resulted from a policy, custom, or failure to train. A municipality cannot be held liable under § 1983 for the acts of its employees solely on a respondeat superior theory. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Vicarious liability attaches to the municipality only when the municipality itself causes the constitutional violation at issue, which occurs when the harm results from the municipality’s policy or custom. See id. at 694, 98 S.Ct. at 2037-38 (“[I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”). See also Doe v. Claiborne County, Tenn., 103 F.3d 495, 507 (6th Cir.1996) (“[a municipality] cannot be found liable unless the plaintiff can establish that an officially executed policy, or the toleration of a custom within [the municipal entity] leads to, causes, or results in the deprivation of a constitutionally protected right”). To satisfy the Monell requirements, a plaintiff must identify the policy or custom, connect the policy or custom to the city itself, and show that the particular injury was incurred because of the execution of that policy or custom. Id. at 507-508. The term policy “generally implies a course of action consciously chosen from among various alternatives.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985). A policy reflects “a deliberate choice to follow a course of action ..." } ]

[ { "docid": "22786230", "title": "", "text": "find that plaintiffs, through the exercise of reasonable diligence, should have discovered their alleged injuries at the very latest by the end of March, 2000. Since plaintiffs did not file these actions until [more than two years later], their claims against their prescribing physicians are clearly time barred. Motion App. at 394. As noted, the District Court adopted its analysis in Accadia to reject petitioners’ motions to remand their cases to state court. Petitioners then turned to this court by filing a petition and supplemental petition for a writ of mandamus. II. By invoking our mandamus jurisdiction, petitioners concede, at least implicitly, that we have no appellate jurisdiction at this time to review the denial of their remand motions. In the ordinary course of proceedings, we acquire jurisdiction over a matter by way of an appeal either from final orders under 28 U.S.C. § 1291; collateral orders under the doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); interlocutory orders concerning injunctions under 28 U.S.C. § 1292(a); questions certified for appeal by the district court and then certified by the appellate court under 28 U.S.C. § 1292(b); or certification by the district court pursuant to Fed.R.Civ.P. 54(b) of a “final” judgment when disposition has been had of less than all parts or issues in a given case. In re Diet Drugs, 401 F.3d at 154 (footnote omitted). Petitioners make no claim to the availability of review at this time through any of these avenues of appeal, nor could they reasonably do so. See, e.g., Caterpillar Inc. v. Lewis, 519 U.S. 61, 74, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (“An order denying a motion to remand, standing alone, is obviously not final and immediately appealable as of right.”) (citation, quotation marks and punctuation omitted); see also Spring Garden Associates, L.P. v. Resolution Trust Corp., 26 F.3d 412, 414 (3d Cir.1994) (“As for the district court’s denial of a remand, neither 28 U.S.C. § 1291 nor 28 U.S.C. § 1292 expressly confers jurisdiction on this court to review orders denying a" } ]

[ { "docid": "19189703", "title": "", "text": "dismissal order impacted on more than the issue of federal subject matter jurisdiction alone. Consequently, we conclude that the district court’s order dismissing Red Cross is separable from the subsequent order of remand. Therefore, appellate review of the dismissal order is not barred by 28 U.S.C. § 1447(d). Accord Aliota v. Graham, 984 F.2d at 1353 (3d Cir.1993) (holding question of resubstitution separate from question of remand and, thus, reviewable on appeal). B. We also conclude that the district court’s February 22 order of dismissal is final, within the meaning of 28 U.S.C. § 1291. We have recognized that, in general, “[a] ‘final decision’ is one that ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Praxis Properties, Inc. v. Colonial Savings Bank, S.L.A., 947 F.2d 49, 54 n. 5 (3d Cir.1991), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). We also have recognized an exception to this rule, the so-called “collateral final order doctrine.” Van Cauwenberghe v. Biard, 486 U.S. 517, 522, 108 S.Ct. 1945, 1949, 100 L.Ed.2d 517 (1988). We believe that the district court’s order of dismissal was “final” under the collateral final order doctrine, as well as under traditional finality analysis. 1. Under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), and its progeny, for an order to come under the collateral final order doctrine it “must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). “If the order at issue fails to satisfy any one of the above requirements, it is not appealable under the collateral-order exception to § 1291.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276, 108 S.Ct. 1133, 1136, 99 L.Ed.2d 296 (1988). We conclude that the three-part test is satisfied under the circumstances presented by the" }, { "docid": "4012735", "title": "", "text": "KRAVITCH, Circuit Judge: We have convened in banc to consider whether an order denying a motion for appointed counsel in an in forma pauperis action brought pursuant to 42 U.S.C. § 1983 is immediately appealable under 28 U.S.C. § 1291. We hold that it is not. I. Section 1291 provides for appellate review of “final decisions” of the district courts. As a general rule, a district court’s decision is final and appealable under this section only when it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Ordinarily, then, a party must raise all claims of error in a single appeal following final judgment on the merits. In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), however, the Supreme Court recognized an exception to the final judgment rule for a “small class” of decisions that “finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Id. at 546, 69 S.Ct. at 1225-26. In Cohen, the Court held that a district court’s refusal to require a plaintiff in a shareholder’s derivative suit to post security for costs was within this “small class” of decisions. More recently, the Supreme Court has refined the Cohen exception by articulating a three-pronged test to determine whether an order that does not finally resolve a case is nonetheless appealable under section 1291. To qualify for immediate review under this test, a non-final order must “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). Because an order denying a motion for appointed counsel does not terminate the underlying" }, { "docid": "21596152", "title": "", "text": "courts of the United States....” 28 U.S.C. § 1291 (1991). A district court’s decision is appealable under § 1291 only when the decision “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275, 108 S.Ct. 1133, 1136, 99 L.Ed.2d 296 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). When Younger abstention is applicable, the district court “must dismiss the action.” Partington v. Gedan, 880 F.2d 116, 120 (9th Cir.1989) (internal quotation omitted), rev’d and vacated in part on other grounds, 923 F.2d 686 (9th Cir.1991). A district court order abstaining under Younger and dismissing the case ends the litigation. It is a final appealable order. Id. In contrast, the district court’s order in the present ease that it will not abstain under Younger and dismiss the case is not a final decision foreclosing further proceedings. Rather, it “ensures that litigation will continue in the District Court.” Gulfstream, 485 U.S. at 275, 108 S.Ct. at 1136. Simonich argues that although the district court’s order is not a final order, it is nevertheless immediately appealable under the collateral-order exception to § 1291 set forth in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In Cohen, the Court recognized a “small class” of decisions appealable under § 1291 although not terminating the underlying action. Id. at 546, 69 S.Ct. at 1226-27. Pursuant to Cohen, we have jurisdiction to hear an appeal of a district court’s interlocutory order if the order (1) “conclusively determine^] the disputed question”; (2) “resolve[s] an important issue completely separate from the merits of the action”; and (3) is “effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978) (footnote omitted). In Gulfstream, the Supreme Court applied the first prong of the Cohen test and held a district court’s refusal to stay or dismiss federal proceedings, pursuant to the" }, { "docid": "1995337", "title": "", "text": "district court has certified for a potential immediate appeal pursuant to 28 U.S.C. § 1292(b), this Court lacks jurisdiction to hear the appeal unless the decision is “final” within the meaning of § 1291. “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945) (emphasis ours); see, e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). In determining whether a decision is “final” within the meaning of § 1291, we are to give that section a “practical rather than a technical construction,” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); and a decision “by which a district court disassociates itself from a case” is deemed to be final, Swint v. Chambers County Commission, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995); see, e.g., Bankers Trust Co. v. Mallis, 435 U.S. 381, 385 n. 6, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (“courts of appeals must ... determine whether the district court intended the judgment to represent the final decision in the case”). In the present case, it appears that the district court intended its July 2 Order, although not addressing the merits of the case or any issue in it, to be its final decision in Leftridge’s case. As described in Part I above, the court in February 2009 had ordered that the case be “administratively closed”; that order closed the case only conditionally, as it was entered “without prejudice to reopening by an attorney for [Leftridge]” if Leftridge obtained counsel “by 6/29/09.” February 13 Order. In its June 29 Order, however, the court refused to extend that deadline, and in its July 2 Order the court refused to reopen the case. Thus, the administrative closure of the case, conditional when first ordered in February, became unconditional. The district court, which thereafter referred to the July 2 Order as “the" }, { "docid": "22836422", "title": "", "text": "assuming the new procedure is more efficient, I question the need to provide a failsafe system for preserving a civil appeal due to the ease of compliance with the established rules. 28 U.S.C. § 1291 provides that “The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States ... except where a direct review may be had in the Supreme Court.” In the situation before us, there is little mystery as to what constitutes a final decision. A final decision under § 1291 is one which “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute on the judgment.’ ” Gulfstream Aerospace Corp. v. Mayacamas Corp., — U.S. -, 108 S.Ct. 1133, 1136, 99 L.Ed.2d 296 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). In the absence of a final judgment on all claims or a final judgment on part of the claims, Fed.R.Civ.P. 54(b) makes it clear that 1) there can be no final decision which terminates the action, and 2) any previous decision is subject to revision at any time before the entry of a final judgment adjudicating all claims. Although the collateral-order doctrine provides an exception to the final-decision rule contained in § 1291, the doctrine is without application in this case. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949) (collateral-order doctrine stated); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (requirements for application of collateral-order doctrine). Instead, we are presented with a notice of appeal filed before the district court adjudicated all the claims in the action and before a Rule 54(b) certification was obtained. Under our prior decisions, this appeal would be dismissed for lack of jurisdiction. Appellate jurisdiction would be determined as of the date the notice of appeal was filed (January 16, 1987), and a later Rule 54(b) certification by the district court would be" }, { "docid": "14457683", "title": "", "text": "Further, the Nevada district court found that Debtors’ bankruptcy filing in the Southern District of New York was solely an attempt to evade the district court’s jurisdiction and, specifically, the allegedly adverse impact of its orders over the summer of 2009. The district court’s sanctions order made the Silar Parties and Counsel jointly and severally liable for some $279,615 in sanctions, an amount based on the lenders’ attorney’s fees and expenses. The district court also ordered Counsel to disgorge its retainers ($300,000 each) received for filing and litigating the underlying bankruptcy case. The Silar Parties and Counsel appealed. II We have jurisdiction over appeals from a district court sitting in bankruptcy under 28 U.S.C. § 1291. Klenske v. Goo (In re Manoa Fin. Co.), 781 F.2d 1370, 1372 (9th Cir.1986) (per curiam). Section 1291 provides that federal appellate courts, with certain exceptions not applicable here, “shall have jurisdiction of appeals from all final decisions of the district courts of the United States.” A “final decision” is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945). The Supreme Court has construed § 1291 slightly more broadly than its narrow language would suggest, holding that it gives appellate courts jurisdiction over a “small class” of interlocutory orders that are nevertheless appealable “final decisions.” See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). These appealable collateral orders “must [1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). “Because collateral jurisdiction requires all three elements, we lack collateral order jurisdiction if even one is not met.” McElmurry v. U.S. Bank Nat’l Ass’n, 495 F.3d 1136, 1140 (9th Cir.2007). The Silar Parties and Counsel do not claim that the sanctions order in this" }, { "docid": "16032952", "title": "", "text": "court to appoint him counsel. Marler argued that his lack of knowledge of tort law and his inability to investigate his claim while in jail were a sufficient basis for the district court to appoint him counsel. The district court summarily denied Marler’s motion and Marler appealed. II Because we are a court of limited jurisdiction, before examining the merits of this appeal we must determine whether we have jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987). We must examine the jurisdictional basis for this appeal even if the parties have not raised this issue. Id. Ordinarily, we have jurisdiction only over final decisions of district courts. 28 U.S.C. § 1291. A decision is final if it “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). Section 1291’s finality requirement “embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing proceeding by interlocutory appeals.” United States v. Nixon, 418 U.S. 683, 692, 94 S.Ct. 3090, 3099, 41 L.Ed.2d 1039 (1974). The district court’s decision not to appoint Marler counsel does not end the litigation on the merits and, thus, it is not a final decision. Nevertheless, we sometimes exercise our jurisdiction over an interlocutory appeal pursuant to the collateral order doctrine. Cohen v. Beneficial Ind. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). The collateral order doctrine is a narrow exception to the general rule that an appeal under § 1291 must await a final judgment on the merits. The different circuits have not agreed on the application of the collateral order doctrine to district court orders refusing to appoint counsel for plaintiffs. Almost all of the prior decisions concern civil rights cases. The First, Second, Third, Fourth, Sixth, Seventh, Tenth, and Eleventh Circuits have held that district court orders denying plaintiffs" }, { "docid": "23090704", "title": "", "text": "cases) did not authorize compensation for representation in state clemency proceedings. Taylor filed a timely notice of appeal to this Court. This Court ordered the parties to address whether a circuit court has appellate jurisdiction to review the district court’s order denying reimbursement for activities by appointed counsel relating to state clemency matters. The State has informed the Court that it does not have any interest or role in this appeal and therefore does not intend to file a brief. Appellate Jurisdiction This Court must consider, sua sponte if necessary, whether appellate jurisdiction exists. In re Kaiser Aluminum and Chemical Co., 214 F.3d 586, 589 (5th Cir.2000), cert. denied, 532 U.S. 919, 121 S.Ct. 1354, 149 L.Ed.2d 285 (2001). As a court of limited jurisdiction, this Court has authority to hear appeals only from “final decisions” under 28 U.S.C. § 1291, interlocutory decisions under 28 U.S.C. § 1292, non-final judgments certified as final under Federal Rule of Civil Procedure 54(b), or some other non-final order or judgment to which an exception applies. Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enter., Inc., 170 F.3d 536, 538 (5th Cir.1999). In general, a district court’s order is an appealable final decision if it “ends the litigation on' the merits and leaves nothing for the court to do but execute the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)). In addition, the jurisprudential exception known as the collateral-order doctrine permits an appeal of a narrow group of interlocutory orders if the district court’s ruling conclusively determines the disputed question, resolves an important issue that is completely separate from the merits, and cannot effectively be reviewed on appeal from a final judgment. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); United States v. Brown, 218 F.3d 415, 420 (5th Cir.2000), cert. denied, 531 U.S. 1111, 121 S.Ct. 854,148 L.Ed.2d 769 (2001). At issue here is the district court’s ruling that counsel" }, { "docid": "17124124", "title": "", "text": "we have jurisdiction to entertain this interlocutory appeal. We have jurisdiction over final orders and certain types of interlocutory orders. See 28 U.S.C. §§ 1291, 1292. In general, a pretrial order dismissing less than all of a plaintiffs claims is interlocutory and cannot be appealed unless it includes the grant or denial of an injunction, see § 1292(a)(1); or the district court has certified a controlling issue of law under 28 U.S.C. § 1292(b); or the court has directed entry of a partial final judgment with the determination required by Rule 54(b) of the Federal Rules of Civil Procedure; or the interlocutory order is appealable under the narrow, judicially created “collateral order” doctrine. Great Rivers Coop. v. Farmland Indus., Inc., 198 F.3d 685, 687-88 (8th Cir.1999). Kassuelke does not appeal from a final order as required for jurisdiction under § 1291. No injunction is at issue to invoke jurisdiction under § 1292(a)(1), and the district court has not certified an issue for appeal pursuant to § 1292(b). Nor has the court entered a partial final judgment pursuant to Rule 54(b). The only remaining potential basis for appellate jurisdiction is the collateral order doctrine. To qualify for immediate appeal under the collateral order doctrine, an order must conclusively decide a disputed question that is important and distinct from the case’s merits, and the decision must be effectively unreviewable on appeal from a final judgment. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir.1998) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). Here, the district court granted substitution of the government as a defendant pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(1). The Westfall Act, officially named the Federal Employee Liability Reform and Tort Compensation Act of 1988, amended the Federal Tort Claims Act and was designed “to extend immunity to federal employees from liability for tortious conduct occurring within the scope of employment.” Taboas v. Mlynczak, 149 F.3d 576, 578 n. 1 (7th" }, { "docid": "19074915", "title": "", "text": "even if the parties concede it); accord City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1045 n. 8 (10th Cir.1994), cert. denied, 513 U.S. 1191, 115 S.Ct. 1254, 131 L.Ed.2d 135 (1995). This Court, with consent of the parties, has “jurisdiction to hear appeals from ... final judgments, orders, and deerees[.]” 28 U.S.C. § 158(a)(1); see id. at § 158(b)(1) & (c)(1); 10 Cir. BAP L.R. 8001-1(c). “[A] decision is ordinarily considered final and appealable under § 1291 [and § 158(a) ] only if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 1718, 135 L.Ed.2d 1 (1996) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 (1945)). Orders may also be considered “final” if they meet the requirements of the collateral order doctrine. See, e.g., Quackenbush, 517 U.S. at 710-12, 116 S.Ct. at 1718; Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). An order is “final” under the collateral order doctrine if it (1) conclusively determines a disputed question that is completely separate from the merits of the action, (2) is effectively unreviewable on appeal from a final judgment, and (3) is too important to be denied review. Quackenbush, 517 U.S. at 712-16, 116 S.Ct. at 1719-20 (relying on Richardson-Merrell Inc. v. Roller, 472 U.S. 424, 431, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978); Cohen, 337 U.S. at 546, 69 S.Ct. at 1225-26). The Tenth Circuit has made it clear that orders denying confirmation of a chapter 13 plan are not “final” under 28 U.S.C. § 158(a). Simons v. FDIC (In re Simons), 908 F.2d 643, 645 (10th Cir.1990). Moreover, the elements of the collateral order doctrine are not met in this case. Accordingly," }, { "docid": "22160639", "title": "", "text": "was required. II. Before addressing the merits of Duncan’s appeal, we must determine whether an order granting a motion to disqualify opposing counsel is appealable prior to the entry of a final judgment in the underlying action. Under 28 U.S.C. § 1291, the federal courts of appeals have jurisdiction to hear “appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court.” This section, which provides the major avenue of federal appellate review, has generally been interpreted as permitting appeal only from a judgment that finally disposes of the action on the merits. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), however, the Supreme Court recognized that certain “collateral orders” which do not terminate the action on the merits are nevertheless appealable “final decisions” under § 1291. To fall within the Cohen exception to the final judgment rule, “the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, supra, 437 U.S. at 468, 98 S.Ct at 2457. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S.-,-, 101 S.Ct. 669, 674, 66 L.Ed.2d 571, 579 (1981). Because an order granting a motion to disqualify opposing counsel is not a final judgment, it is appeal-able only if it satisfies the requirements of the collateral order doctrine announced by Cohen and its progeny. In a long line of cases, this court has held that both orders granting and denying motions to disqualify opposing counsel meet the Cohen requirements and therefore are immediately appealable under § 1291. Musicus v. Westinghouse Electric Corp., 621 F.2d 742 (5th Cir. 1980) (denial); Brennan’s Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168 (5th" }, { "docid": "266202", "title": "", "text": "132 L.Ed.2d 238 (1995), we conclude that we have no appellate jurisdiction to consider this aspect of his appeal and accordingly we will dismiss it. This court has jurisdiction to review “all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Certain orders that are not final, in the sense of ending the litigation, are immediately appeal-able under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To come within this doctrine, an “order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). As a general matter, an order denying a motion to dismiss does not end the litigation on the merits and is ordinarily not subject to appellate review until a final judgment has been entered. Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445, 450 (6th Cir.1988). In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), however, the Supreme Court held that an immediate interlocutory appeal could be taken from an order denying a claim of qualified immunity. The collateral order doctrine applies to such orders, Mitchell held, because qualified immunity entitles the defendant not to stand trial and a denial of immunity is thus effectively unreviewable on appeal from a final judgment. Id. at 525, 105 S.Ct. at 2814-15. Given that a defendant in a section 1983 case has an absolute right immediately to appeal a denial of immunity, the question becomes what other issues may he also appeal at the same time. This question was answered by the Supreme Court recently in Swint, — U.S -, 115 S.Ct." }, { "docid": "23526757", "title": "", "text": "process. The defendants assert that this court lacks jurisdiction over the interlocutory appeal. They further argue that the district court was well within its discretion to impose the Rule 37 sanction. In addition, they cross-appeal maintaining that the district court’s order, in so far as it reduced the amount of the sanction imposed by the magistrate, does not provide for their full recovery of reasonable expenses including attorneys’ fees pursuant to Rule 37. Finally, defendants request attorneys’ fees and costs incurred by reason of this appeal. DISCUSSION 1. Jurisdiction Appellants contend that this court has jurisdiction over the appeal under 28 U.S.C. § 1291. It is well established that “as a general rule a district court’s decision is appealable under ... [Section 1291] only when the decision ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271,-, 108 S.Ct. 1133, 1136, 99 L.Ed.2d 296 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). A “small class” of district court orders, however, has long been understood to constitute an exception to the “final judgment rule.” The Supreme Court held in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1948), that some rights are simply “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” In elaborating Cohen’s “collateral order” exception, the Court has forged a three-part test to ascertain whether an order that does not finally resolve litigation is nonetheless ap-pealable pursuant to Section 1291. The order must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unre-viewable on appeal from a final judgment. Gulfstream Aerospace, 485 U.S. at -, 108 S.Ct. at 1136-37; Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). In Cheng v. GAF" }, { "docid": "1995336", "title": "", "text": "discretion in denying several of his other motions. Defendants, while noting that the district court did not enter a judgment in this case, urge us to affirm the closure of the case on the ground that it was properly dismissed for lack of prosecution or for failure to comply with court orders. For the reasons that follow, we conclude that despite the lack of a “judgment,” we have jurisdiction to entertain this appeal pursuant to 28 U.S.C. § 1291; and we conclude that the district court’s refusal to reopen the ease because of Leftridge’s failure to retain an attorney constituted an abuse of discretion. A. Appellate Jurisdiction Section 1291 of Title 28 provides, in pertinent part, that the federal courts of appeals “shall have jurisdiction of appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. When a decision of the district court does not pertain to an interlocutory injunction, a receivership, or a case in admiralty, see id. § 1292(a), and is not an order that the district court has certified for a potential immediate appeal pursuant to 28 U.S.C. § 1292(b), this Court lacks jurisdiction to hear the appeal unless the decision is “final” within the meaning of § 1291. “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945) (emphasis ours); see, e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). In determining whether a decision is “final” within the meaning of § 1291, we are to give that section a “practical rather than a technical construction,” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); and a decision “by which a district court disassociates itself from a case” is deemed to be final, Swint v. Chambers County Commission, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995); see, e.g., Bankers Trust" }, { "docid": "22583265", "title": "", "text": "motion to proceed in forma pauperis was filed within the thirty day period following the district court’s denial of appointment of counsel, and as such, we accept it as the substantial equivalent of a timely notice of appeal. II. JURISDICTION We next address the question of our jurisdiction over these appeals. Section 1291 of 28 U.S.C. provides, “[t]he courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States ... except where a direct review may be had in the Supreme Court.” (emphasis added). A final decision for purposes of § 1291 has been defined as “a decision by the District Court that ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). Appellees argue that an order denying counsel does not prevent a litigant from presenting a pro se claim to the court. Since such an order does not end the litigation on the merits, it cannot be considered a “final decision.” Accordingly, appellees argue that this Court has no jurisdiction to consider these appeals. In response, appellants contend that even if the orders denying counsel do not constitute “final decisions,” they nevertheless are appealable under the “collateral order” doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). The issue in Cohen was the appealability of a district court order in a stockholder’s derivative suit, denying a defendant’s motion that the plaintiff be required to post security for costs of litigation. Although that order did not technically end the litigation on the merits, the Court held that it nevertheless was immediately appealable. The Court reasoned that an order denying security for costs would be unreviewable if review was postponed until final disposition of the merits. After disposition of the case on the merits, any right plaintiff" }, { "docid": "22581509", "title": "", "text": "Judge Muecke certified his order for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). II The first question we must decide is whether a party may take an appeal, pursuant to 28 U.S.C. § 1291, from an order granting a motion to recuse. Under section 1291, the courts of appeals are vested with “jurisdiction of appeals from all final decisions of the district courts. . . . ” The Supreme Court has consistently interpreted this language as indicating that a party may not take an appeal under this section until there has been a decision by the district court that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (Coopers & Lybrand), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). An order granting a motion to recuse clearly does not terminate the entire litigation. “Such an order is appealable, therefore, only if it comes within an appropriate exception to the final-judgment rule.” Coopers & Lybrand, supra, 437 U.S. at 467, 98 S.Ct. at 2457. In this case, plaintiffs rely on the “collateral order” exception articulated by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) (Cohen). In Cohen the Supreme Court recognized that some orders by their nature require review at an earlier stage, because they will be effectively unreviewable upon appeal from a final judgment. Id. at 546, 69 S.Ct. at 1225. The Cohen collateral order doctrine allows appeals from orders that can be said to fall within that small class which finally determine claims of rights separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. Id. Although, there is a strong policy behind the rule that appeals are to be made only following final" }, { "docid": "22146351", "title": "", "text": "and challenges the appeal of the order denying appointment of counsel on the ground that it was taken from an unap-pealable order denying reconsideration of the district court’s earlier denial of her original motion. We also address a third issue, whether an order denying appointment of counsel is appealable under section 1291. Although this last issue is not raised by appellee, we are nevertheless obligated to determine the question of our appellate jurisdiction. Rowe v. United States, 633 F.2d 799, 800 (9th Cir. 1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2047, 68 L.Ed.2d 349 (1981). Each of these jurisdictional issues requires reference to the final judgment rule embodied in 28 U.S.C. section 1291, which vests in the courts of appeal “jurisdiction of appeals from all final decisions of the district courts . . . . ” In its general application, this statutory language has been read to restrict appellate jurisdiction to situations where the order of the district court “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). However, the Supreme Court has recognized that some orders by their nature require review at an earlier stage if they are to be effectively reviewed at all. In such cases the Court has said that section 1291 must be given a “practical rather than a technical construction,” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), because “a rigid insistence on technical finality would sometimes conflict with the purposes of the statute.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 471, 98 5. Ct. 2454, 2459, 57 L.Ed.2d 312 (1978). The Cohen collateral order dqctrine allows appeals from orders that can be said to fall within that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require 337 U.S. at 546, 69 S.Ct. at" }, { "docid": "7492312", "title": "", "text": "Section 114-103, the third-party plaintiff is precluded from bringing any action for indemnity against it, since it is paying the original plaintiff worker’s compensation benefits. The district court concluded that the law of Illinois applies and therefore it denied the motion for summary judgment, ordered Keebler Co. to answer the third-party complaint, and ordered the completion of discovery. This appeal followed. II Pursuant to 28 U.S.C. § 1291, the courts of appeals are vested with “jurisdiction of appeals from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court.” This language has consistently been interpreted to indicate that the courts of appeals would ordinarily exercise jurisdiction only when there has been “a decision by the District Court that ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Coo pers & Lybrand v. Livesay, 437 U.S. 463; 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). However, pursuant to section 1291, it is recognized that there are “collateral orders” that have aspects of finality and are appealable even though they do not end the main litigation. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To qualify as such a collateral order the order must conclusively determine claims of right, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. at 468, 98 S.Ct. at 2457; Firestone Tire & Rubber Co. v. Risjord, 449 U.S. at 375, 101 S.Ct. at 674. See Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977). Because the litigation from which the instant appeal arises has not reached final judgment, the district court’s order denying appellant’s motion for summary judgment based on a conflict of laws determination is appealable under section 1291 only if" }, { "docid": "16136185", "title": "", "text": "that follows, we are constrained to look at it both as a motion to dismiss and as an order similar to those touching upon interim measures or provisional relief. Four possible sources of appellate jurisdiction command our attention: First, the familiar appeal-from-final-judgment provision of 28 U.S.C. § 1291; second, the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), which allows appeals under § 1291 from certain collaterally final orders; third, 28 U.S.C. § 1292(a)(3), which expressly allows appeals from certain interlocutory orders of district courts sitting in admiralty; and fourth, 28 U.S.C. § 1292(a)(1), which authorizes interlocutory appeals from orders granting or refusing certain forms of interim or provisional relief. We address each jurisdictional provision in turn. A. 28 U.S.C. § 1291 With the exception of the Cohen collateral order doctrine, see infra Part II.B, an appeal under 28 U.S.C. § 1291 lies only from a “final decision!].” As the Supreme Court has repeatedly emphasized, “a decision is not final, ordinarily, unless it “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” ” Cunningham v. Hamilton County, 527 U.S. 198, 204, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999) (quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945))); see also Gov’t of V.I. v. Rivera, 333 F.3d 143, 150 (3d Cir.2003) (quoting Catlin, 324 U.S. at 233, 65 S.Ct. 631). “The denial of a motion to dismiss does not end the litigation and ordinarily is not a final order for § 1291 purposes.” Bell Atlantic-Pa., Inc. v. Pa. Pub. Util. Comm’n, 273 F.3d 337, 343 (3d Cir.2001) (citing 15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3914.6 at 526 (“Orders refusing to dismiss an action almost always are not final.”))- The District Court’s decision denying King David’s motion to dismiss plainly does not meet the Catlin finality" }, { "docid": "11659870", "title": "", "text": "section 1291 when it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Van Cauwenberghe v. Biard, 486 U.S. 517, 521, 108 S.Ct. 1945, 1949, 100 L.Ed.2d 517 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). Here, the district court’s order would ordinarily not be regarded as “final” under 28 U.S.C. § 1291 for the court dismissed CWA’s complaint as to the Business Units grievances with leave to amend. See Newark Branch, N.A.A.C.P. v. Harrison, N.J., 907 F.2d 1408, 1416-17 (3d Cir.1990). Thus, the order rather than ending the case “ensure[d] that litigation will continue in the District Court.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275, 108 5.Ct. 1133, 1136, 99 L.Ed.2d 296 (1988). AT & T nevertheless asserts that this court can exercise jurisdiction over its appeal by regarding the orders of July 27, 1990, and November 7,1990, as final pursuant to the collateral order doctrine explicated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Cohen held that an order of a district court entered before what would ordinarily be the final order can be reviewed if it falls within that small class [of prejudgment orders] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. Id. at 546, 69 S.Ct. at 1225-26. Cohen’s progeny have established three requirements for an order to be collaterally appealable; the order must (1) “conclusively determine the disputed question,” (2) “resolve an important issue completely separate from the merits of the action” and (3) “be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). The collateral order doctrine is narrow and each of the three independent requirements must be met before appellate review is" } ]

[ { "docid": "6844344", "title": "", "text": "immediately enforceable by contempt. The requirement that the order must relate to the relief ultimately sought by the claimant in order to be appealable under section 1292(a)(1) is found in other cases such as Switzerland Cheese Ass’n v. E. Home’s Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), which was decided more than five months after Atlantic Aviation. The plaintiffs in Switzerland Cheese moved for a summary judgment granting a permanent injunction, but the district court, finding a genuine issue of material fact, denied the motion. 385 U.S. at 23-24, 87 S.Ct. at 193-194. The plaintiffs then appealed, contending that the order was “an ‘interlocutory’ one ‘refusing’ an injunction within the meaning of § 1292(a)(1).” Id. at 24, 87 S.Ct. at 194. The Supreme Court rejected this construction of section 1292(a)(1): [T]he denial of a motion for a summary judgment because of unresolved issues of fact does not settle or even tentatively decide any thing about the merits of the claim. It is strictly a pretrial order that decides only one thing — that the case should go to trial. Orders that in no way touch on the merits of the claim but only relate to pretrial procedures are not in our view “interlocutory [injunctions]” within the meaning of § 1292(a)(1). We see no other way to protect the integrity of the congressional policy against piecemeal appeals. Id. at 25, 87 S.Ct. at 195 (footnote omitted) (emphasis added). Similarly, the Second Circuit in International Products Corp. v. Koons, 325 F.2d 403 (2d Cir.1963), held that an order sealing a deposition and enjoining the defendants and others from “publishing or disclosing to any third party any of the testimony, documents or writing contained or referred to” in the deposition, id. at 404 n. 1, is not appealable under section 1292(a)(1). Judge Friendly wrote: We think it better ... to continue to read § 1292(a)(1) as relating to injunctions which give or aid in giving some or all of the substantive relief sought by the complaint ... and not as including restraints or directions in orders concerning the" } ]

[ { "docid": "16259723", "title": "", "text": "of a determination as to less than all parties in the action, whether plaintiffs or defendants. School District of Kansas City v. Missouri, 592 F.2d 493 (8th Cir. 1979); Melancon v. Insurance Company of North America, 476 F.2d 594 (5th Cir. 1973); Schaefer v. First National Bank, 465 F.2d 234 (7th Cir. 1972); Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847 (3d Cir. 1970); Sullivan v. Delaware River Port Authority, 407 F.2d 58 (3d Cir. 1969). Indeed, in the cases cited the argument for appealability was stronger than in this case because the district court’s determination as to the party involved in the appeal was based on reasons distinguishing that party from his or her co-parties. Here, in contrast, the district court ruling was equally applicable to all plaintiffs. In any event, it is undisputed that the district court made no Rule 54(b) determination and direction in this case. Therefore, we reject appellant’s claim that we have jurisdiction over his appeal under 28 U.S.C. § 1291. IV. Appellant vigorously presses his alternate argument that we have jurisdiction over his appeal under 28 U.S.C. § 1292(a)(1) because the order appealed from denied injunctive relief. He points to the language of paragraph (4) of the Court’s order, which provides, “Defendants’ motion to dismiss plaintiffs’ prayer for injunctive and declaratory relief is GRANTED. Such dismissal is with prejudice”, and argues that this represents a refusal of his claim for injunctive relief. Section 1292(a)(1) provides, in part: (a) The courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions 28 U.S.C. § 1292(a)(1) (emphasis added). Although appellant construes this provision as automatically bestowing appellate jurisdiction when any order nominally grants or denies injunctive relief, the statute conditions our jurisdiction on (1) the entry of an “interlocutory” order, and (2) a district court decision on injunctive relief. The Supreme Court’s review of the purpose of and history behind § 1292(a)(1) is instructive of its scope. The statute was" }, { "docid": "22260575", "title": "", "text": "if seeking multiple remedies for the alleged violation of that right, states a single claim for relief.”). B. There are statutory exceptions to the final judgment rule. One, contained in 28 U.S.C. § 1292(a)(1), bestows appellate jurisdiction over interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions.” Although the parties did not suggest it, we may have jurisdic tion under § 1292(a) to review the district court’s partial dismissal of Counts 2-6, which was phrased in terms of a dismissal “to the extent that these five counts request injunctive and declaratory relief.” But only if that dismissal amounted to the refusal to issue an injunction. Section 1292(a) is not, however, a golden ticket litigants can use to take any decision affecting injunctive relief on a trip to the court of appeals. Just because a district court’s order has the “practical effect of refusing an injunction,” it does not automatically qualify for immediate appeal under § 1292(a)(1). Carson v. Am. Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996-97, 67 L.Ed.2d 59 (1981). The Supreme Court has instructed us that unless such an order threatens a “ ‘serious, perhaps irreparable, consequence’ ” and can be “ ‘effectually challenged’ only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal.” Id. at 84, 101 S.Ct. at 997 (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955)); see also Citizens Concerned About Our Children v. Sch. Bd. of Broward County, Fla., 193 F.3d 1285, 1289 (11th Cir.1999) (“[A]n order that does not rule on a request for injunctive relief, but that has the effect of denying it, may be immediately appealable. For such an interlocutory order to be appealable before final judgment, the prospective appellant must show that the denial of injunctive relief has a ‘serious, perhaps irreparable, consequence, and that the order can be effectually challenged only by immediate appeal.’ ” (citations omitted)). An interlocutory order that explicitly denies an injunction, however, “fits squarely within the plain language of § 1292(a)(1),” regardless of whether an immediate appeal is" }, { "docid": "1394972", "title": "", "text": "case Gardner v. Westinghouse Broadcasting Company, the district court had denied class certification under Federal Rule of Civil Procedure 23(b) on the grounds that the plaintiffs claim was not typical and that the case did not present questions of law or fact common to the class. 437 U.S. at 479-80, 98 S.Ct. 2451. The plaintiff sought immediate appeal under § 1292(a)(1), arguing that “[t]he practical effect of the denial of class certification, is ... to refuse a substantial portion of the injunctive relief requested.” Id. at 480, 98 S.Ct. 2451. The Supreme Court rejected the argument, holding that the denial of class certification in that case did not have the practical effect of refusing injunctive relief. Id. at 480-81, 98 S.Ct. 2451. In its reasoning, the Court, in a passage relied on by Trans Union, distinguished a previous case, General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 53 S.Ct. 202, 77 L.Ed. 408 (1932), by observing: “In [General Electric], the Court held that an order dismissing a counterclaim for an injunction was appealable. The order, therefore, entirely disposed of the defendant’s prayer for injunctive relief; here [in Gardner ] the order merely limits the scope of the relief that may ultimately be granted.” Id. at 481, 98 S.Ct. 2451. (emphasis added). This statement, Trans Union claims, displays the Court’s view that unless a district court’s order “entirely disposes” of all injunctive relief, appellate jurisdiction does not lie under § 1292(a)(1). Trans Union similarly relies on statements in our opinion in Holmes v. Fisher, 854 F.2d 229 (7th Cir.1988). In that case, the plaintiff, who was arrested without a warrant and held for eight days before being taken to court, sought equitable relief and damages under § 1983 and sought to represent a class of similarly situated citizens. Id. at 230. The district court dismissed the request for equitable relief, but left the claim for damages pending. Id. We held that we had jurisdiction over the interlocutory appeal of the district court’s decision to deny equitable relief under § 1292 because “[although the request for money is pending," }, { "docid": "3082184", "title": "", "text": "that his territory had been split and a new franchise had been offered to Robinson which included all of his APR. Dawson also alleged Novus violated the Minnesota Franchise Act during the negotiations for the 2008 franchise agreement. Novus timely filed an interlocutory appeal of the district court’s order. See 28 U.S.C. § 1292(a)(1) (granting the courts of appeals jurisdiction over interlocutory orders of the district courts “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions”). On appeal, Novus contends the district court erred in refusing to enforce the non-compete provisions as part of the preliminary injunction issued against Dawson, erred in dismissing Car-Mike for lack of personal jurisdiction, and erred in granting Dawson an additional sixty days in which to file an answer. II Before considering the propriety of the district court’s injunctive relief, we need to address whether we have jurisdiction over Novus’s appeal of the dismissal of CarMike for lack of personal jurisdiction and the order granting Dawson an extension of time to file an answer. See Waterson v. Hall, 515 F.3d 852, 855 n. 3 (8th Cir.2008) (noting our obligation to raise an issue of appellate jurisdiction sua sponte even though not challenged by an appellee). We first address the district court’s dismissal of CarMike for lack of personal jurisdiction. The district court included the dismissal of CarMike in its order addressing Novus’s request for injunctive relief, and the dismissal had the practical effect of denying Novus a preliminary injunction against CarMike. The district court did not, however, enter a certification under Rule 54(b) of the Federal Rules of Civil Procedure with respect to Car-Mike’s dismissal. Absent a Rule 54(b) cer tification, “[a]n order dismissing one party for lack of personal jurisdiction while allowing suit to continue against the remaining defendants is not a final, appealable order[.]” Special Invs., Inc. v. Aero Air, Inc., 360 F.3d 989, 993 (9th Cir.2004); see also Morton Int’l, Inc. v. A.E. Staley Mfg. Co., 460 F.3d 470, 476 (3d Cir.2006) (“[A]n order ... in which the district court dismissed one defendant for want of personal" }, { "docid": "5361853", "title": "", "text": "LEWIS, Chief Judge. This is a discrimination in employment action filed by plaintiff against Singer-Friden Corporation (Singer) in the district court for the District of New Mexico alleging claimed causes of action under 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. The trial court granted Singer a summary judgment of dismissal on plaintiff’s first claim but did not dismiss the section 1981 claim. Absent certification under Rule 54(b) of the Federal Rules of Civil Procedure and with no certification for interlocutory consideration under 28 U.S.C. § 1292(b) the threshold question is whether this court has jurisdiction to consider plaintiff’s appeal from the judgment of dismissal entered in the Title VII claim. The basis for the order of dismissal was the untimely filing of the complaint as it pertained to this action and a specific find ing that no equitable consideration justified a tolling of the statutory bar of limitations. An earlier motion made by Singer to dismiss the appeal was denied by another panel of this court and we hold such denial to be proper under the particular circumstances of the case. 28 U.S.C. § 1292(a)(1) sets jurisdiction for this court to entertain appeals from interlocutory orders of the trial court granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court There is no question but that the trial court’s order summarily dismissing plaintiff’s claim under 42 U.S.C. § 2000e severely limited plaintiff’s claim to effective injunctive relief and necessarily has a severe impact upon the judicial priority accorded consideration of injunctions. Courts have recognized that many orders not dealing exclusively with injunctions do nevertheless constitute interlocutory orders impairing injunctive relief and are thus entitled to immediate appellate review. In Abercrombie & Fitch Co. v. Hunting World, Inc., the Second Circuit held a partial summary judgment order, in a trademark infringement suit which in effect constituted a final denial of injunctive relief as to certain uses of the word “Safari,” to be appealable as an interlocutory order refusing an injunction. 461" }, { "docid": "908139", "title": "", "text": "Gramer’s dismissal is one that involves a substantial legal question, the resolution of which would substantially advance the ultimate termination of the litigation, certification under § 1292(b) is available as is the entry of a final judgment in the manner provided by Rule 54(b). The order dismissing the suit as to Gramer may be serious, but there is nothing to indicate that its effect is irreparable. The CFTC has urged us to treat the attempted appeal as a petition for mandamus, 28 U.S.C. § 1651, if we find the dismissal order not appealable. Mandamus is appropriate only in extraordinary situations, when the right to relief is clear and indisputable, and the party seeking the writ has no other adequate means of attaining the relief he desires. Plekowski v. Ralston-Purina Co., 557 F.2d 1218, 1220 (5th Cir. 1977). Mandamus is not appropriate here because none of these requirements are met. For these reasons, we dismiss the appeal for lack of jurisdiction over it at this stage. DISMISSED. . Under Fed.R.Civ.P. 41(b), the defendant may move for dismissal of an action or any claim against him “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of the court.” . Fed.R.Civ.P. 37(b)(2)(C) provides that if a party fails to obey an order to provide or permit discovery, the court may dismiss the action or any part thereof. . The CFTC requested that the district judge enter a final judgment pursuant to Rule 54(b), but the judge never ruled on the request. . 28 U.S.C. § 1292(a)(1) provides: (a) The courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions except where a direct review may be had in the Supreme Court Some commentators have written that § 1292(a)(1) is concerned primarily with interlocutory orders that grant or refuse preliminary injunctive relief, see Note, The Limits of Section 1292(a)(1) Redefined?: Appeal-ability of the Class Determination as an Order “Refusing an" }, { "docid": "5361854", "title": "", "text": "to be proper under the particular circumstances of the case. 28 U.S.C. § 1292(a)(1) sets jurisdiction for this court to entertain appeals from interlocutory orders of the trial court granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court There is no question but that the trial court’s order summarily dismissing plaintiff’s claim under 42 U.S.C. § 2000e severely limited plaintiff’s claim to effective injunctive relief and necessarily has a severe impact upon the judicial priority accorded consideration of injunctions. Courts have recognized that many orders not dealing exclusively with injunctions do nevertheless constitute interlocutory orders impairing injunctive relief and are thus entitled to immediate appellate review. In Abercrombie & Fitch Co. v. Hunting World, Inc., the Second Circuit held a partial summary judgment order, in a trademark infringement suit which in effect constituted a final denial of injunctive relief as to certain uses of the word “Safari,” to be appealable as an interlocutory order refusing an injunction. 461 F.2d 1040, 1041-42. In Spangler v. United States, 415 F.2d 1242, 1246-48, the Ninth Circuit held an order appealable which struck part of the government’s complaint in intervention and thereby eliminated certain parties which the government sought to enjoin. In Build of Buffalo, Inc. v. Sedita, 441 F.2d 284, the Second Circuit found ap-pealable an order dismissing certain defendants in a civil rights action against whom an injunction was sought. In Yaffe v. Powers, 454 F.2d 1362, the First Circuit, in an action for broad injunctive relief against police surveillance, held a district court’s refusal to recognize the purported class to be an action narrowing injunctive relief and thus appealable under 28 U.S.C. § 1292(a)(1). Plaintiff’s complaint in the instant ease alleges violations of both Title VII and section 1981 but the injunctive relief appears to have been sought primarily under Title VII. This court has recently indicated the differences in the substantive and enforcement provisions of these two statutes. Taylor v. Safeway Stores, Inc., 524 F.2d 263. The Fifth Circuit in Guerra v. Manchester" }, { "docid": "17017022", "title": "", "text": "since the district court has not reached a final judgment terminating all issues in dispute between the parties, and that this court therefore lacks jurisdiction under 28 U.S.C. § 1292(a)(1). We agree. Federal courts are courts of limited jurisdiction. That jurisdiction is determined by Congress by statute within the confines of the Constitution. In general federal appellate courts have jurisdiction to review only final judgments of a district court. 28 U.S.C. § 1292, however, carves out a limited category of interlocutory orders where a circuit court has jurisdiction to review. In particular § 1292(a)(1) allows review of orders by a district judge “granting, continuing, modifying, refusing or dissolving injunctions .... ” 28 U.S.C. § 1292(a)(1). Not every order of a district court denying injunctive relief, however, is reviewable through an interlocutory appeal. In Switzerland Cheese Ass’n, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), the Supreme Court held that a summary judgment motion denying a permanent injunction was not immediately appealable under § 1292(a)(1) where the district judge’s decision that there were tri able issues “[did] not settle or even tentatively decide anything about the merits of the claim.” The Court declared its decision was impelled by the congressional policy against piecemeal appeals during the pend-ency of an action in the district court. Allowing such an appeal would open the floodgates to numerous appeals, hindering the effective administration of justice. Id. at 24-25, 87 S.Ct. at 194-195. Two later Supreme Court holdings further illuminated the proper approach for determining appealability of district court orders having the practical effect of denying injunctive relief. In Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978), the Court held that no jurisdiction existed under § 1292(a)(1) where a petitioner sought review of a district court order denying class certification. In denying class certification the district judge was not required to reach the merits of petitioner’s individual claim. Further, no serious or irreparable harm would result from delaying review of this question until rendition of final judgment in the case. In" }, { "docid": "8810379", "title": "", "text": "2201. The potential bases for our jurisdiction are few and well defined. Our jurisdiction is ordinarily limited to appeals from final decisions of the district courts. 28 U.S.C. § 1291; see also World Fuel Corp. v. Geithner, 568 F.3d 1345, 1348 (11th Cir.2009). We also have jurisdiction over a narrow class of cases excepted from the final judgment rule under the collateral order doctrine. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Miccosukee Tribe of Indians v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191, 1198 (11th Cir.2009). Additionally, we have jurisdiction to review certain interlocutory orders of the district courts — those “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” 28 U.S.C. § 1292(a)(1); see also Birmingham Fire Fighters Ass’n 117 v. Jefferson County, 280 F.3d 1289, 1292 (11th Cir.2002). Because our jurisdiction is limited to a narrow class of decisions, our jurisdiction to entertain this appeal hinges on the nature of the order that denied Robertson’s motion. The district court entered the order in a postjudgment proceeding. Robertson’s motion relied on the jurisdiction that the district court retained to interpret the settlement agreement and enforce the permanent injunction barring class members from prosecuting released claims. Robertson’s motion sought clarification regarding whether the claims in his Florida action are released claims that are enjoined from prosecution. Robertson’s motion, styled as a “Motion for Permission to Proceed with His Claims against Defendants Blue Cross and Blue Shield of Florida, Inc. and Health Options, Inc.,” described the relief Robertson sought as “an order allowing the Robertson Action to proceed,” an “[ojrder stating that the Robertson Action is not stayed by this action,” and an order stating that “the Settlement did not release Blue Cross from Dr. Robertson’s claims.” Because the district court did not discuss the merits of Robertson’s motion, the effect of the order summarily denying Robertson’s motion is unclear. One plausible interpretation is that the denial is an implicit ruling that Robertson’s claims are released and that he is enjoined from prosecuting them," }, { "docid": "1394969", "title": "", "text": "class certification issue is not before us now. This is the plaintiffs’ second attempt to appeal the district court’s order. In this appeal, the plaintiffs challenge only the district court’s determination that private plaintiffs are not entitled to injunctive relief under the FCRA. Looking to the text of the FCRA and the only federal appellate decision to address the issue, see Washington v. CSC Credit Servs., 199 F.3d 263 (5th Cir.2000), the district court found that because (i) the statute expressly grants to the FTC the power to pursue injunctive relief; (ii) the statute does not specifically grant such power to individuals; and (in) the statute explicitly gives individuals the power to seek damages, the most straightforward interpretation of the statute was that Congress intended to provide injunctive relief only to the FTC. The plaintiffs filed a notice of appeal, asserting jurisdiction under 28 U.S.C. § 1292(a)(1) and seeking immediate review of the dismissal of their request for injunc-tive relief under the FCRA. For the reasons set out below, we find that we lack jurisdiction to hear this appeal. II. Analysis Plaintiffs acknowledge that we generally have jurisdiction to review only final judgments of the district court, see 28 U.S.C. § 1291, but they contend that the exception provided in 28 U.S.C. § 1292(a)(1) gives this Court jurisdiction to review im mediately the district court’s dismissal of their request for injunctive relief under the FCRA. Section 1292(a) provides in relevant part: [T]he courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court. 28 U.S.C. § 1292(a) (2003). We recently reiterated the narrow scope of the § 1292(a)(1) exception to the final-judgment rule, noting the Supreme Court’s directive that “because § 1292(a)(1) was intended to carve out only a limited exception to the final-judgment rule ... the statute is to be construed narrowly.” Simon Prop. Group, L.P. v. mySIMON, Inc., 282 F.3d 986, 990" }, { "docid": "908140", "title": "", "text": "dismissal of an action or any claim against him “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of the court.” . Fed.R.Civ.P. 37(b)(2)(C) provides that if a party fails to obey an order to provide or permit discovery, the court may dismiss the action or any part thereof. . The CFTC requested that the district judge enter a final judgment pursuant to Rule 54(b), but the judge never ruled on the request. . 28 U.S.C. § 1292(a)(1) provides: (a) The courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions except where a direct review may be had in the Supreme Court Some commentators have written that § 1292(a)(1) is concerned primarily with interlocutory orders that grant or refuse preliminary injunctive relief, see Note, The Limits of Section 1292(a)(1) Redefined?: Appeal-ability of the Class Determination as an Order “Refusing an .Injunction”, 9 Tol.L.Rev. 488, 492 (1978), because § 1292(a) is “primarily invoked where delay in appellate review will work an injustice,” id. at 492. Interlocutory grants of permanent injunctive relief are also appealable because, when an injunction has been granted by an order that takes immediate effect, irreparable damage may be inflicted. 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure § 3924, at 69 (1977). An interlocutory order refusing a permanent injunction, in contrast “usually carries a lesser threat of irreparable harm since full injunctive relief may be granted on appeal,” Note, supra, at 494. The Supreme Court, however, has stated without explanation that § 1292(a)(1) may “at times embrace denials of permanent injunctions.” Switzerland Cheese Ass’n v. E. Horne’s Market, Inc., 385 U.S. 23, 25, 87 S.Ct. 193, 195, 17 L.Ed.2d 23, 25 (1966). In this case, CFTC requested both preliminary and permanent injunctive relief against Gramer. The request for preliminary relief was apparently never ruled on because the parties had tentatively agreed to a settlement. Therefore, dismissal" }, { "docid": "11629120", "title": "", "text": "traditionally restrictive parameters.” Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 163 (3d Cir.2001), as amended (Oct. 16, 2001). And as to § 1292(b) interlocutory appeals, these were rare because a district court must first certify an order for appellate review under limited parameters. 28 U.S.C. § 1292(b). Specifically, a district court would need to conclude that the “order involves a controlling question of law as to which there is substantial ground for difference of opinion” and “that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Id. It was not until the Seventh Circuit’s decision in In re Rhone-Poulenc Rorer, Inc. to exercise mandamus that the Advisory Committee on Civil Rules began to seriously explore reforms to appellate review and federal jurisdiction over class-action certification decisions. See Robert H. Klonoff, The Decline of Class Actions, 90 Wash. U.L.Rev. 729, 739 (2013). In promulgating Rule 23(f), the Advisory Committee exercised its authority under 28 U.S.C. § 1292(e) and sought to “[e]x-pan[d] ... opportunities to appeal.” Fed. R.Civ.P. 23(f) advisory committee’s notes (1998 amendments). The decision wheth er to allow appeal from an order granting or denying certification, however, was left to the “sole discretion of the court of appeals.” Id. Subdivision (f) was added to Rule 23 in 1998 to provide a form of interlocutory review over class-action certification decisions. The reason for adding subdivision (f) was that the class-action “certification decision is often decisive as a practical matter.” Id. The Judicial Conference’s Committee on Rules of Practice and Procedure (“Standing Committee”) explained: “Denial of certification can toll the death knell in actions that seek to vindicate large numbers of individual claims. Alternatively, certification can exert enormous pressure to settle. Because of the difficulties and uncertainties that attend some certification decisions—those that do not fall within the boundaries of well-established practice'—the need for immediate appellate review may be greater than the need for appellate review of many routine civil judgments.” 1997 Report at 18-19. The Advisory Committee’s notes to the 1998 Amendments to Rule 23(f) provide: “Appeal from an order" }, { "docid": "23226924", "title": "", "text": "from seeking abortions while the law was in place. Id. The court reasoned that judicial economy would be served by hearing the inevitable further constitutional challenge to the Pennsylvania Act in this lawsuit rather than in a separate subsequent action. Id. Therefore, the court continued the injunction and set a date for a new trial. The Commonwealth appeals this decision under the interlocutory appeal provision, 28 U.S.C. § 1292(a)(1) (1993) and, in the alternative, seeks a writ of mandamus on the ground that the district court violated our mandate in reopening the record. II. The clinics contend we lack appellate jurisdiction, arguing that the district court’s continuation of the injunction and its decision to reopen the record are not subject to interlocutory appeal. Title 28 U.S.C. § 1292(a)(1) authorizes appellate jurisdiction over “[interlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions,- or refusing to dissolve or modify injunctions, ...” We have defined an “injunction” for purposes of § 1292(a)(1) as an order “directed to a party, enforceable by contempt, and designed to accord or protect ‘some or all of the substantive relief sought by a complaint’ in more than a [temporary] fashion.” Cohen v. Board of Trustees, 867 F.2d 1456, 1465 n. 9 (3d Cir.1989) (in bane) (quoting Charles A. Wright et ah, 12 Federal Practice and Procedure § 3922 (1977)). Conversely, pretrial orders such as orders to compel discovery and denials of summary judgment are not “injunctions” because they do not “grant part of the relief requested by the claimant.” Hershey Foods Corp. v. Hershey Creamery Co., 945 F.2d 1272, 1277 (3d Cir.1991). The clinics contend we lack jurisdiction over the district court’s order under Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). There, the Supreme Court held that an interlocutory order having “the practical effect of refusing an injunction” is appealable only upon a showing that the order “might have a ‘serious, perhaps irreparable, consequence,’ and that the order can be ‘effectually challenged’ only by immediate appeal.” Id. at 84, 101 5.Ct. at 996 (citation omitted" }, { "docid": "23686545", "title": "", "text": "exists under the Hill-Burton Act against HHS, and whether a cause of action exists against HHS under the Administrative Procedure Act,' 5 U.S.C. § 706(1). Initially, however, we must determine whether the dismissal of HHS as a party defendant while the action continued against the hospitals is an appealable order. I. To be appealable, the District Court’s order dismissing HHS from this suit must qualify as either a final judgment under 28 U.S.C. § 1291, or an “[interlocutory order[ ] ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions” under § 1292(a)(1). An order that does not specifically refuse an injunction but has the practical effect of doing so may be immediately appealable under § 1292(a)(1). However, because § 1292(a)(1) was intended to carve out only a limited exception to the final judgment rule, “[ujnless a litigant can show that an interlocutory order of the district court might have a ‘serious, perhaps irreparable, consequence,’ and that the order can be ‘effectually challenged’ only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal.” Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981). In discussing the “irreparable consequences” factor, the Court in Carson deemed significant whether the party seek ing to appeal had requested and effectively been denied a preliminary injunction. 450 U.S. at 84-86, 101 S.Ct. at 996-998 (distinguishing Switzerland Cheese Ass’n v. E. Horne’s Market, 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), and Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978), on basis that in those cases no preliminary injunction was sought nor irreparable harm alleged). “Most of the cases dealing with the practical denial of preliminary relief turn on the fact that characteristically, preliminary relief must be granted promptly to be effective.” 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure § 3924, at 70 (1977). However, the logical significance of an effective denial of preliminary relief is undermined if it appears that the request" }, { "docid": "3832228", "title": "", "text": "D.C. court had already determined that the Corps had not violated NEPA or any other federal law. Accordingly, the Alabama court declined to dissolve its order of October 15, 2003, and the Corps and Georgia appeal that ruling as well (Alabama II), with the ARC intervening on appeal. II. INTERLOCUTORY APPEALS Both of these cases are appeals from interlocutory orders of the Alabama district court, pursuant to 28 U.S.C. § 1292(a)(1), which provides that the courts of appeals shall have jurisdiction over appeals from: Interlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions .... 28 U.S.C. § 1292(a)(1). Black’s Latu Dictionary defines an “injunction” as: “A court order commanding or preventing an action.” Black’s Law Dictionary 788 (7th ed.1999). There are, of course, many orders entered by a trial court during the pendency of a suit, requiring the parties to act or refrain from acting in a particular way. However, not all such orders, regardless of how they are characterized by the parties or the district courts, are “injunctions” for the purposes of 28 U.S.C. § 1292(a)(1). See Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 3922 (“It is not enough to qualify for appeal under [§ 1292(a)(1)] that a requested order be addressed to a party and command action, or even that it be enforceable by contempt.”). Thus, we review several principles of law relating to injunctions in general to determine whether the order before us is subject to an interlocutory appeal under § 1292(a)(1). First, any motion or suit for either a preliminary or permanent injunction must be based upon a cause of action, such as a constitutional violation, a trespass, or a nuisance. “There is no such thing as a suit for a traditional injunction in the abstract. For a traditional injunction to be even theoretically available, a plaintiff must be able to articulate a basis for relief that would withstand scrutiny under Fed. R.Civ.P. 12(b)(6) (failure to state a claim).” Klay v. United Healthgroup, Inc. 376 F.3d" }, { "docid": "629645", "title": "", "text": "parties.’ ” The plaintiffs’ motion was denied and the ease set down for trial. The plaintiffs appeal. They are joined in the appeal by the Board of Education of the State of California, a named defendant which has voted to change position and to ally itself with the plaintiffs. The plaintiffs also seek a writ of mandamus. ANALYSIS Jurisdiction. In their brief filed on appeal, the defendants challenge our jurisdiction, citing the teaching of Switzerland Cheese Ass’n, Inc. v. E. Home’s Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966) that denial of summary judgment, not being a final judgment, is not appealable. The plaintiffs counter with Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), where the Supreme Court noted that Congress had modified the “rigid application” of the rule against piecemeal appeals by creating an exception for appeals as of right from interlocutory orders of the district court “granting, continuing, modifying, refusing, or dissolving, injunctions.” Carson, 450 U.S. at 83, 101 S.Ct. 993, quoting 28 U.S.C. § 1292(a)(1). The Court noted that while the refusal to enter a consent decree did not in terms refuse an injunction, “it nonetheless had the practical effect of doing so.” Id. The Supreme Court distinguished Switzerland Cheese in this way: Although the District Court order [in Switzerland Cheese ] seemed to fit within the statutory language of § 1292(a)(1), petitioners’ contention was rejected because they did not show that the order might cause them irreparable consequences .if not immediately reviewed. The motion for summary judgment sought permanent and not preliminary injunctive relief and petitioners did not argue that a denial of summary judgment would cause them irreparable harm pendente lite. Since permanent injunctive relief might have been obtained after trial, the interlocutory order lacked the “serious, perhaps irreparable, consequence” that is a prerequisite to appealability under § 1292(a)(1). Id. at 85,101 S.Ct. 993. The Court added that, in distinction from Switzerland Cheese, in Carson, in seeking entry of the proposed consent decree, petitioners sought an immediate restructuring of respondents’ transfer and promotional policies." }, { "docid": "16930475", "title": "", "text": "TORRUELLA, Chief Judge. Appellants are five school-age children who live in Boston, Massachusetts. In combination with five other children and an advocacy group, Boston’s Children First, they brought suit, claiming that the Boston elementary school assignment program denied them their preferred school assignments based on their race, in violation of federal and state law. Boston’s Children First v. City of Boston, 98 F.Supp.2d 111, 112 (D.Mass.2000). Each plaintiff sought declaratory and injunctive relief, as well as compensatory or nominal damages. Id. The district court held that because the five appellant children did not apply to change schools prior to the 1999-2000 school year, they could not be said to suffer any injury requiring injunctive relief, and therefore lacked standing to sue for such relief. Id. at 114. Accordingly, the district court granted defendants’ motion to dismiss as it related to appellants’ claims for injunctive relief. Id. Appellants then appealed to this Court. Because we lack jurisdiction to entertain this interlocutory appeal, we must dismiss without addressing the merits. A Appellants argue first that this Court has jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), which provides for appellate jurisdiction of “[ijnterloeutory orders ... granting, continuing, modifying, refusing or dissolving injunctions.... ” They suggest that the district court’s dismissal of their claims for injunctive relief, based on the determination that they lacked standing, amounted to a refusal of an injunction appealable pursuant to § 1292(a)(1). Orders in which the district court expressly denies a request for injunctive relief are immediately appealable as of right under § 1292(a)(1). Casas Office Machs. v. Mita Copystar Am., Inc., 42 F.3d 668, 673 (1st Cir.1994) (quoting Morgenstern v. Wilson, 29 F.3d 1291, 1294 (8th Cir.1994)). When the order only has the “practical effect” of denying an injunction, however, the denial must have a “serious, perhaps irreparable, consequence,” and be “effectually challenged only by immediate appeal.” Id.; see also Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981) (setting forth this test). This narrow scope given to § 1292(a)(1) stems from the “general congressional policy against piecemeal review,” as well" }, { "docid": "16259724", "title": "", "text": "have jurisdiction over his appeal under 28 U.S.C. § 1292(a)(1) because the order appealed from denied injunctive relief. He points to the language of paragraph (4) of the Court’s order, which provides, “Defendants’ motion to dismiss plaintiffs’ prayer for injunctive and declaratory relief is GRANTED. Such dismissal is with prejudice”, and argues that this represents a refusal of his claim for injunctive relief. Section 1292(a)(1) provides, in part: (a) The courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions 28 U.S.C. § 1292(a)(1) (emphasis added). Although appellant construes this provision as automatically bestowing appellate jurisdiction when any order nominally grants or denies injunctive relief, the statute conditions our jurisdiction on (1) the entry of an “interlocutory” order, and (2) a district court decision on injunctive relief. The Supreme Court’s review of the purpose of and history behind § 1292(a)(1) is instructive of its scope. The statute was designed to modify the rule of finality because of a “need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.” Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955). Last Term, the Court again stressed the intent of that statutory provision to provide a vehicle for those orders which “can be ‘effectually challenged’ only by immediate appeal.” Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981). Because § 1292(a)(1) was enacted to alleviate the undue hardship caused by rigid application of the general principle permitting appellate review of only final decisions of the federal district courts and to prevent irreparable harm before the ultimate disposition of the case could be completed, its primary use has been for appellate review of decisions on preliminary injunctions. See, e. g., Merrell-National Laboratories, Inc. v. Zenith Laboratories, Inc., 579 F.2d 786 (3d Cir. 1978); United States v. Pennsylvania, 533 F.2d 107 (3d Cir. 1976). The limitation of the section" }, { "docid": "23044433", "title": "", "text": "the prerogative writs have been reserved for extraordinary circumstances. In re Josephson, 218 F.2d 174 (1 Cir. 1954). And a garden variety denial of a summary judgment motion on the ground that there is a genuine issue as to a material fact can hardly satisfy this “extraordinary circumstances” test. Cf. Bigart v. Goodyear Tire & Rubber Co., 361 F.2d 317 (2 Cir. 1966). Of course, in some cases we can review interlocutory denials of summary judgment motions under the Interlocutory Appeals Act of 1958 which grants the courts of appeals discretion to review any interlocutory order in a civil case if the trial judge decides that the issue he ruled upon involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the interlocutory order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). Here, however, the Interlocutory Appeals Act is inapplicable because the trial judge has not certified that he is of the opinion that his order should be reviewed immediately under the provisions of that Act. Thus, it would appear we have jurisdiction to review the trial court’s denial of appellants’ motion for summary judgment if, but only if, this jurisdiction is granted by Section 1292(a) (1) of the Judicial Code, 28 U.S.C. § 1292(a) (1), which grants the courts of appeals jurisdiction to hear appeals from interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions * The rule in this circuit has been that we have jurisdiction in a case like the present under Section 1292(a) (1), on the theory that a trial court’s order denying a plaintiff’s motion for summary judgment and for permanent injunctive relief was an order “refusing” an injunction. Peter Pan Fabrics, Inc. v. Dixon Textile Corp., 280 F.2d 800, 802 (2 Cir. 1960); United States v. New York, N.H. & H.R.R., 276 F.2d 525, 545 (2 Cir.) cert. denied, 362 U.S. 961, 964, 80 S.Ct. 877, 4 L.Ed.2d 876 (1960); Federal Glass Co. v. Loshin, 217 F.2d 936" }, { "docid": "23022287", "title": "", "text": "therefore permanent. The present appeal followed. While the appeal was pending, the Government requested a stay of the district court’s permanent injunction. On November 27, 1996, the district court denied the Government’s request. In doing so, the court opined that a stay pending appeal was unnecessaxy because its injunction was not appealable. The court further held that its notice regarding the hearing was adequate and that the Government was unlikely to prevail on the merits. See Anderson v. Government of the Virgin Islands, 947 F.Supp. 894 (D.VI.1996). II. Jurisdiction Before we reach the merits of the Government’s appeal, we must first decide whether we have jurisdiction to review the district court’s injunction. The Government contends that we may review the district court’s injunction pursuant to 28 U.S.C. § 1292, which provides jurisdiction over appeals from: (1) Interlocutory orders of the district courts of the United States ... and the District Court of the Virgin Islands ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions except where a direct review may be had in the Supreme Court____ 28 U.S.C. § 1292(a)(1). Anderson disagrees and argues that the District Court’s injunction does not fall within Section 1292’s jurisdictional grant because its subject matter (the. propriety of the Department’s surveillance operation) differs from the crux of Anderson’s employment discrimination claim. Anderson brought a motion for preliminary relief under Rule 65(a) of the Federal Rules of Civil Procedure and the District Court expressly ruled on and granted that motion. Ordinarily, our analysis should end here. “When a claimant makes a Fed. R.Civ.P. 65(a) motion for a preliminary injunction, and the court expressly rules on it, there is no difficulty in identifying the order as falling within Section 1292(a)(1). Such explicit orders must fall within the plain language of the section.” Cohen v. Board of Trustees of the University of Medicine and Dentistry of New Jersey, 867 F.2d 1455, 1466 (3d Cir.1989). Anderson nevertheless contends that his motion for relief differed from a “routine” Rule 65 motion because the relief requested in that motion (the cessation of surveillance) was" } ]

[ { "docid": "9835669", "title": "", "text": "conjunction with any person to alter, amend, or revoke the trust. The provision above quoted respecting sales by the trustees with the written consent of the decedent is claimed by the commissioner to render the value of the corpus of each trust taxable as part of the decedent’s gross estate. We agree with the Board’s decision that it did not. Assuming without decision that the settlor’s power to consent to a sale by the trustees was a power, exercisable in conjunction with them, “to alter, amend, or revoke” the trust, it was, in the opinion of a majority of the court, conditioned upon the exercise by the trustees of a discretion dependent on the existence of an emergency or change in the affairs of the Singer Company in Trust No. 3, or in the affairs of the subsidiaries in Trust No. 4. The Board found, in accordance with the stipulation, that such conditions never happened. Consequently section 302(d) is inapplicable. See Tait v. Safe Deposit & Trust Co., 4 Cir., 74 F.2d 851, 858; Day v. Commissioner, 3 Cir., 92 F.2d 179; Patterson v. Commissioner, 36 B.T.A. 407. However, decision may be rested upon a ground on which we all agree. At no time after April 1, 1923, could the settlor’s power have been exercised except in conjunction with Stephen Carlton Clark, who was not only one of the trustees but also one of the beneficiaries of the trust. As such beneficiary his interest was adverse to any sale, the proceeds of which must be paid to the settlor. Under such circumstances to apply section 302 (d) to a trust created prior to the Revenue Act of 1924, 26 U. S.C.A.Int.Rev.Acts, page 228, in which the section first appeared, would offend the Fifth Amendment. Helvering v. Helmholz, 296 U.S. 93, 98, 56 S.Ct. 68, 80 L.Ed. 76; White v. Poor, 296 U.S. 98, 102, 56 S.Ct. 66, 80 L.Ed. 80; Mackay v. Commissioner, 2 Cir., 94 F.2d 558, 562. We agree also with the Board’s conclusion that Trust No. 3 is not taxable under section 302(c) as a transfer' to" } ]

[ { "docid": "14357350", "title": "", "text": "SIMONS, Circuit Judge. Upon the consideration of many cases involving inclusion of property in the gross estate of a decedent under § 302(c) of the Revenue Act of 1926 as amended, Internal Revenue Code § 811(c), 26 U.S.C.A. Int.Rev.Code, § 811(c), there emerges an interpretation (after some mutations, as in Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, and Becker v. St. Louis Union Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.F.d. 35), that § 302(c) reaches all inter vivos transfers which may be resorted to as a substitute for a will in making dispositions of property operative at death (Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368) ; that it sweeps into the gross estate all property, the ultimate possession or enjoyment of which is held in suspense until the moment of the decedent’s death, or thereafter (Fidelity-Philadelphia Trust Co. v. Rothensies, 324 U.S. 108, 65 S.Ct. 508, 89 L.Ed. 783, 159 A.L.R. 227) ; and that the essential element is the decedent’s possession of a reversionary interest at the time of his death, notwithstanding such reversionary interest might disappear prior to death. Goldstone v. United States, 325 U.S. 687, 65 S.Ct. 1323, 89 L.Ed. 1871, 159 A.L.R. 1330. The problem posed for us in the present appeal is whether by the terms of two trust instruments executed by appellant’s decedent, Harry L. Beach, all possibility of reversion of interest therein upon any contingency was successfully excluded. In 1925 and 1926 Beach and his wife Elizabeth, created trusts to each of which Beach contributed $80,000 and his wife, Elizabeth, $20,000 in Liberty bonds. The trust indentures, so far as here material, were identical, and provided that the income should be paid to the wife Elizabeth during the life of Beach, and upon his death to be divided between Elizabeth and a daughter Camilla, or go to the survivor for life. Each trust was to terminate on the death of the survivor of Mrs. Beach and Camilla. At the time" }, { "docid": "11315891", "title": "", "text": "proceeds of the contracts, which would leave the value of the respective contracts taxable to her estate under § 302(c) : “* * * of which [decedent] has at any time made a transfer, * * * under which he has retained for his life * * * the * * * enjoyment of * * * the property, * * The word “transfer,” said the Supreme Court in Chase Nat. Bank v. United States, 278 U.S. 327, 337, 49 S.Ct. 126, 128, 73 L.Ed. 405, 63 A.L.R. 388, “must, we think, at least include the transfer of property procured through expenditures by the decedent with the purpose, effected at his death, of having it pass to another.” The latest expression of the Supreme Court on § 302(c) is to be found in Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, wherein the Court discusses that particular section of the Revenue Act with relation to the Klein case, supra, and the St. Louis Trust cases, Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, and Becker v. St. Louis Union Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. 35, judicial landmarks in the field governed by § 302(c). We deem it helpful to quote parts of the Hallock opinion: “* * * Whether the transfer made by the decedent in his lifetime is ‘intended to take effect in possession or enjoyment at or after his death’ by reason of that which he retained, is the crux of the problem. * * * Section 302(c) deals with property not technically passing at death but with interests theretofore created. The taxable event is a transfer inter vivos. But the measure of the tax is the value of the transferred property at the time when death brings it into enjoyment.” [pages 110, 111 of 309 U.S., page 447 of 60 S.Ct., 84 L.Ed. 604, 125 A.L.R. 1368] “* * * It also taxes inter vivos transfers that are too much akin to testamentary dispositions" }, { "docid": "23506238", "title": "", "text": "be, state obligations. Significantly, the taxpayer in the Shamberg case does not cite this letter. Respondent in the White case, also cites the Commissioner’s letter of May, 20, 1929 which stated that interest on bonds of the Alabama State Bridge Corporation was exempt. But the correspondence with the Commissioner contained in the present record shows that the interest was payable not only out of bridge tolls but also “out of the residue from the gasoline tax * * * or out of any funds in the Treasury” of the state. Again, significantly, respondent in the Shamberg case does not cite this letter. gee, e.g., Paul, Studies in Federal Taxation, Third Series, 420ff; Brown, Regulations, Reenactment, and the Revenue Act, 54 Harv.L.Rev. 377; cf. F. W. Woolworth Co. v. United States, 2 Cir., 91 F.2d 973, 975. Helvering v. Reynolds, 313 U.S. 428, 432, 61 S.Ct. 971, 85 L.Ed. 1438, 134 A.L.R. 1155; Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368; Helvering v. Wilshire Oil Co., 308 U.S. 90, 60 S.Ct. 18, 84 L.Ed. 101; Helvering v. Griffiths, 318 U.S. 371, 395, 396, 63 S.Ct. 636, 87 L.Ed. 843. Koshland v. Helvering, 298 U.S. 441, 446, 447, 56 S.Ct. 767, 80 L.Ed. 1268, 105 A.L.R. 756 (see page 448 of 298 U.S. and page 770 of 56 S.Ct.); M. E. Blatt Co. v. United States, 305 U.S. 267, 279, 59 S.Ct. 186, 83 L.Ed. 167 (see page 272 of 305 U.S. as to reenactments); Maass v. Higgins, 312 U.S. 443, 447, 61 S.Ct. 631, 85 L.Ed. 940, 132 A.L.R. 1035 (see Saks v. Higgins, D.C., 29 F.Supp. 996, 1000 as to re-enactment). The date of the new ruling is given in the lower court’s opinion, D.C., 60 F.2d 391, 393. Cf. Sanford’s Estate v. Commissioner, 308 U.S. 39, 49-54, 60 S.Ct. 51, 84 L.Ed. 20. The taxpayer quotes the following part of the opinion: “We are asked to make a retroactive holding that for some seven years past a multitude of transactions have been taxable although there was no source of law from which" }, { "docid": "14292035", "title": "", "text": "relied on Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, in arriving at its decision. See, also, Broderick v. Keefe, 112 F.2d 293, and Klein v. United States, 283 U.S. 231, 51 S.Ct. 398, 75 L.Ed. 996. The language of Section 302(g) is of the broadest kind. It in terms includes in the gross estate of a decedent amounts receivable by all other beneficiaries. Only because of regulations and certain judicial decisions has Section 302(g) not been extended to cases where the insured has retained no interest in a policy taken out on his own life. As an original question, even such a policy might have been thought to fall within Section 302(g) because of its inherent testamentary character. But since the decision in Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, it is unnecessary to rely on the testamentary character of the transaction for it seems plain that when the death of the insured terminates all rights of his estate to receive payment under the policy and fixes them unalterably in the beneficiary, under the provisions of Section 302(g) the proceeds must be added to the estate of the decedent for purposes of taxation. In Tyler v. United States, 281 U.S. 497, 503, 50 S.Ct. 356, 359, 74 L.Ed. 991, 69 A.L.R. 758, when the inclusion of the entire value of an estate by the entirety was being discussed, the Supreme Court said that the question was: “not whether there has been, in the strict sense of that word, a ‘transfer’ of the property by the death of the decedent, or a receipt of it by right of succession, but whether the death has brought into being or ripened for the survivor, property rights of such character as to make appropriate the imposition of a tax upon that result (which Congress may call a transfer tax, a death duty or anything else it sees fit), to be measured, in whole or in part, by the value of such rights.” It is contended on behalf of" }, { "docid": "3270158", "title": "", "text": "held that the retention of such a possibility of reverter in the case of a transfer in trust was sufficient to include the trust property in the decedent’s gross estate. It was there decided that the crucial taxable transfer is not the technical conveyance of title, but rather the transfer of economic interests which only occurs when the settlor dies; only then is the beneficiary sure.of his interest. The beneficiary gets nothing unless and until the settlor predeceases him. It is then that the settlor’s string on the policy is cut. That case arose under § 302(c), Revenue Act 1926, as amended by Revenue Act 1932, § 803, 26 U.S.C.A. Int.Rev.Code § 811(c), but its reasoning is equally applicable to § 302(g). Commissioner v. Washer, 6 Cir., 1942, 127 F.2d 446, certiorari denied 317 U.S. 653, 63 S.Ct. 48, 87 L.Ed.-; Chase National Bank v. United States, 2 Cir., 1940, 116 F.2d 625; Bailey v. United States, 1940, 31 F.Supp. 778, 90 Ct.Cl. 644. It also expressly overruled the St. Louis Union Trust cases relied upon in the second part of the Bingham case. Thus the Hal-lock case removes the second ground of the Bingham decision that the retention of a possibility of reverter under an insurance policy is not a sufficient incident of ownership to impose a tax. Chase National Bank v. United States, supra; Bailey v. United States, supra; Estate of Cain v. Com’r of Int. Rev., 1941, 43 B.T.A. 1133. See Paul, Federal Estate and Gift Taxation, 1942, p. 540, § 10.20. In United States v. Jacobs, supra, real estate was conveyed to the decedent and his wife as joint tenants in 1909. The wife never contributed any part of, or consideration for, the joint property. Section 302(h) was in effect at the decedent’s death. The court held that the entire value of the joint estate was properly and constitutionally includible in the decedent’s gross estate. In response to the taxpayer’s argument that a one-half interest in the joint property was transferred to and vested in the wife in 1909 and could not thereafter be taxed as" }, { "docid": "11315890", "title": "", "text": "one of the second annuitants would survive her. The death of the first annuitant, then, was the generating event. Tyler v. United States, supra. The death of Mrs. Clise caused a shifting, or the completion of a shifting of an economic benefit of property, which is the subject of a death tax. Chase Nat. Bank v. United States, 278 U.S. 327, 338, 49 S.Ct. 126, 73 L.Ed. 405, 63 A.L.R. 388. We quote from Klein v. United States, 283 U.S. 231, 234, 51 S.Ct. 398, 399, 75 L.Ed. 996: “It is perfectly plain that the death of the grantor was the indispensable and intended event which brought the larger estate into being for the grantee and effected its transmission from the dead to the living, thus satisfying the terms of the taxing act and justifying the tax imposed.” Again, the annuities must have been based upon the life expectancy of the second annuitants, who were younger than, the first annuitant. Reasoning from this, it follows that the decedent had reserved1 a life estate in the proceeds of the contracts, which would leave the value of the respective contracts taxable to her estate under § 302(c) : “* * * of which [decedent] has at any time made a transfer, * * * under which he has retained for his life * * * the * * * enjoyment of * * * the property, * * The word “transfer,” said the Supreme Court in Chase Nat. Bank v. United States, 278 U.S. 327, 337, 49 S.Ct. 126, 128, 73 L.Ed. 405, 63 A.L.R. 388, “must, we think, at least include the transfer of property procured through expenditures by the decedent with the purpose, effected at his death, of having it pass to another.” The latest expression of the Supreme Court on § 302(c) is to be found in Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, wherein the Court discusses that particular section of the Revenue Act with relation to the Klein case, supra, and the St. Louis Trust cases, Helvering v. St." }, { "docid": "11315894", "title": "", "text": "to determine whether we are to adhere to a harmonizing principle in the construction of § 302(c), or whether we are to multiply gossamer distinctions between the present cases, and the three earlier ones. Freed from the distinctions introduced by the St. Louis Trust cases, the Klein case furnishes such a harmonizing principle.” [page 118 of 309 U.S., page 451 of 60 S.Ct., 84 L.Ed. 604, 125 A.L.R. 1368] See, also, Commissioner v. Wilder’s Estate, 5 Cir., 118 F.2d 281. It is not coining a phrase to say that taxation is a practical matter, dealing with practical problems. The practical effect of the annuity contracts was to reserve to Mrs. Clise the enjoyment of the property transferred and to postpone the fruition of the economic benefits thereof to the second annuitants until her death. In the light of the Hallock case the transfers were “too much akin to testamentary dispositions not to be subjected to the same excise.” As we read the statute and understand the law of the Klein and Hallock cases, the Commissioner’s position here is well taken. Because there is a lack of agreement between the taxpayers and the Commissioner as to the precise value of at least some of the annuity contracts, as of the date of the decedent’s death, it becomes necessary to remand the case to the Board of Tax Appeals for a finding of true value. Reversed and remanded. Revenue Act of 1926, 44 Stat. 9, 70, as amended by tbe Act of June 6, 1932, 47 Stat. 279: “Sec. 302. Tbe value of tbe gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated— ****** “(c) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, or of which he has at any time made a transfer, by trust or otherwise, under which he" }, { "docid": "4712436", "title": "", "text": "Helvering v. Hallock, supra; Lang v. Commissioner of Internal Revenue, 304 U.S. 264, 58 S.Ct. 880, 82 L.Ed. 1331, 118 A.L.R. 319; Chase National Bank v. United States, supra; Porter v. Commissioner, 288 U.S. 436, 443, 53 S.Ct. 451, 77 L.Ed. 880. With respect to Policies C and D, the lower court decided that they were not includible because they were issued prior to the Revenue Act of 1918, 40 Stat. 1096 and relied upon Lewellyn v. Frick, 268 U.S. 238, 45 S.Ct. 487, 69 L.Ed. 934, as reaffirmed in Bingham v. United States, 296 U.S. 211, 56 S.Ct. 180, 80 L.Ed. 160. When the decision below was rendered that court did not have the opinion of this court in Bodell v. Commissioner of Internal Revenue, 1 Cir., 1944, 138 F.2d 553, certiorari denied 321 U.S. 778, 64 S.Ct. 619, before it as our opinion had not at the time been issued. In that case we reviewed the decisions in Lewellyn v. Frick, supra; Bingham v. United States, supra; and Industrial Trust Co. v. United States, 296 U.S. 220, 56 S.Ct. 182, 80 L.Ed. 191, and concluded that “the Supreme Court has indicated by Helvering v. Hallock, 1940, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, and United States v. Jacobs, 1939, 306 U.S. 363, 59 S.Ct. 551, 83 L.Ed. 763, that the Bingham case is no longer to be followed”. [138 F.2d 556] The decision of the Board of Tax Appeals holding that the proceeds of two insurance policies were includible though issued prior to 1918 was affirmed. As to one of the policies involved in the Bodell case, supra, we placed our decision for inclusion squarely on the ground that the decedent retained a possibility of reverter. With respect to Policy E, the taxpayer accepts the finding of the court below that the policy was assigned by the decedent to his wife in contemplation of death and is taxable under § 302(c) of the Act. The only question she raises here relating to Policy E is the proper valuation of the policy for tax" }, { "docid": "12745590", "title": "", "text": "the property then or thereafter. In other words such a transfer must be immediate and out and out, and must be unaffected by whether the grantor lives or dies.” This opinion traces the origin and development of the “possession or enjoyment” provision in the various revenue statutes pointing out that Congress used the “possession or enjoyment” clause in death tax legislation in 1862, 1864 and 1898, and that it was included in the 1916 estate tax statute “to frustrate estate tax evasions.” 335 U.S. at 638, 69 S.Ct. 322. In Goldstone v. United States, 325 U.S. 687, 690-691, 65 S.Ct. 1323, 1325, 89 L.Ed. 1871 (1945), involving life insurance in which the decedent reserved certain rights, the court said that the statute: “reaches all inter vivos transfers which may be resorted to, as a substitute for a will, in making dispositions of property operative at death.., It thus sweeps into the gross estate all property the ultimate possession or enjoyment of which is held in suspense until the moment of the decedent’s death or thereafter. Fidelity-Philadelphia Trust Co. v. Rothensies, 324 U.S. 108, 111 [65 S.Ct. 508, 510, 89 L.Ed. 782]. In so doing, § 302(c) pierces all the verbiage of ‘unwitty diversities of the law of property.’ Helvering v. Hallock, supra, [309 U.S. 106] 118 [60 S.Ct. 444, 450, 84 L.Ed. 604]. Testamentary dispositions of an inter vivos nature cannot escape the force of this section by hiding behind legal niceties contained in devices and forms created by conveyances.” The courts have applied this statute so as to subject to estate taxation a wide variety of transfers where the transferor by one device or another retained an economic benefit or interest in the property transferred. Greene v. United States, 237 F.2d 848 (C.A.7, 1956); see Markovits, The Fate of Inter Vivos Transfers under Internal Revenue Code Section 2036, 7 Tax Counsellor’s Quarterly 395 (1963). Retained interests need not necessarily be reserved in the instrument of transfer and need not be legally enforceable in order to come within the reach of the statute. Lehman v. Commissioner, 109 F.2d 99 (C.A.2)," }, { "docid": "9568711", "title": "", "text": "contentions, both before the Board and here. His situation is therefore distinguishable from that of the taxpayer in Helvering v. Wood, 309 U.S. 344, 60 S.Ct. 551, 84 L.Ed. 796, who had no opportunity to reply to a contention of the Commissioner raised for the first time in the Supreme Court, not presented to the Board of Tax Appeals and expressly waived in the Commissioner’s brief to the Circuit Court of Appeals. Here the liability of the taxpayer under § 302(g) was asserted before the Board, denial assigned as error, and briefed and argued in this court. The taxpayer’s contention must therefore be rejected upon the authority of Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037, and Helvering v. Richter, 312 U.S. 561, 61 S.Ct. 723, 85 L.Ed. 1043. The taxpayer insists that § 302 (g) does not apply because it has been consistently construed that the inclusion of insurance in gross estate is contingent upon the insured possessing legal incidents of ownership in the policies at the time of his death, — a construction beginning with Chase Nat’l Bank v. United States, 278 U.S. 327, 49 S.Ct. 126, 73 L.Ed. 405, 63 A.L.R. 388, and reannounced in Bingham v. United States, 296 U.S. 211, 56 S.Ct. 180, 80 L.Ed. 160, and Industrial Trust Co. v. United States, 296 U.S. 220, 56 S.Ct. 182, 80 L.Ed. 191, and by many decisions of District Courts and Circuit Courts of Appeals. The Supreme Court, however, in Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, has dealt comprehensively with those reservations of power in transfers inter vivos, which must be accepted as incidents of ownership in determining includibility in gross estate of transfers made in trust, and has sought the “harmonizing principle” by which to determine whether the transfer is complete and irrevocable when made, or becomes so only upon the death of the grantor. It restored to full authority its decision in Klein v. United States, 283 U.S. 231, 51 S.Ct. 398, 75 L.Ed. 996, and freed it from the limitations" }, { "docid": "11315892", "title": "", "text": "Louis Union Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, and Becker v. St. Louis Union Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. 35, judicial landmarks in the field governed by § 302(c). We deem it helpful to quote parts of the Hallock opinion: “* * * Whether the transfer made by the decedent in his lifetime is ‘intended to take effect in possession or enjoyment at or after his death’ by reason of that which he retained, is the crux of the problem. * * * Section 302(c) deals with property not technically passing at death but with interests theretofore created. The taxable event is a transfer inter vivos. But the measure of the tax is the value of the transferred property at the time when death brings it into enjoyment.” [pages 110, 111 of 309 U.S., page 447 of 60 S.Ct., 84 L.Ed. 604, 125 A.L.R. 1368] “* * * It also taxes inter vivos transfers that are too much akin to testamentary dispositions not to be subjected to the same excise. By bringing into the gross estate at his death that which the settlor gave contingently upon it, this Court fastened on the vital factor.” [page 112 of 309 U. S., page 448 of 60 S.Ct., 84 L.Ed. 604, 125 A.L.R. 1368] “* * * It therefore becomes important to inquire whether the technical forms in which interests contingent upon death are cast should control our decision. If so, it becomes necessary to determine whether the differing terms of conveyance now in issue approximate more closely those used in the Klein case and are therefore governed by it, or have a greater verbal resemblance to those that saved the tax in the St. Louis Trust cases. Such an essay in linguistic refinement would still further embarrass existing intricacies. It might demonstrate verbal ingenuity, but it could hardly strengthen the rational foundations of law. * * *” [pages 116, 117 of 309 U.S., page 450 of 60 S.Ct., 84 L.Ed. 604, 125 A.L.R. 1368] “Our real problem, therefore, is" }, { "docid": "4712435", "title": "", "text": "and vague conjectures” are not enough. Cf. Helvering v. Fitch, 309 U.S. 149, 156, 60 S.Ct. 427, 84 L.Ed. 665. The taxpayer’s second point that only the value of the possibility of reverter is includible for tax purposes is without merit in face of the clear language of § 302(g) expressly providing that the value of the gross estate shall be determined by including the value of the amount receivable by beneficiaries where the $40,000 exemption has been deducted. The measure of the tax is the value of the insurance policies at the decedent’s death. In Commissioner of Internal Revenue v. Washer, 6 Cir., 1942, 127 F.2d 446, certiorari denied 317 U.S. 653, 63 S.Ct. 49, 87 L.Ed. 525, the court expressly included all the proceeds of a policy and not merely the value of a possibility of reverter. Cf. Fidelity-Philadelphia Trust Co. v. Rothensies, 323 U.S. —, 65 S.Ct. 508, and Commissioner of Internal Revenue v. Field’s Estate, 323 U.S. -, 65 S.Ct. 511, both decided by the Supreme Court on February 5, 1945; Helvering v. Hallock, supra; Lang v. Commissioner of Internal Revenue, 304 U.S. 264, 58 S.Ct. 880, 82 L.Ed. 1331, 118 A.L.R. 319; Chase National Bank v. United States, supra; Porter v. Commissioner, 288 U.S. 436, 443, 53 S.Ct. 451, 77 L.Ed. 880. With respect to Policies C and D, the lower court decided that they were not includible because they were issued prior to the Revenue Act of 1918, 40 Stat. 1096 and relied upon Lewellyn v. Frick, 268 U.S. 238, 45 S.Ct. 487, 69 L.Ed. 934, as reaffirmed in Bingham v. United States, 296 U.S. 211, 56 S.Ct. 180, 80 L.Ed. 160. When the decision below was rendered that court did not have the opinion of this court in Bodell v. Commissioner of Internal Revenue, 1 Cir., 1944, 138 F.2d 553, certiorari denied 321 U.S. 778, 64 S.Ct. 619, before it as our opinion had not at the time been issued. In that case we reviewed the decisions in Lewellyn v. Frick, supra; Bingham v. United States, supra; and Industrial Trust Co. v. United" }, { "docid": "14292034", "title": "", "text": "decisions. But we can see no essential difference and accordingly regard the proceeds of the policies involved in the case at bar as coming to the beneficiary through the death of the insured. Such a succession falls directly within the terms of Section 302(g). The theory of taxation closely resembles that applied to joint tenancies. There, upon the death of one of the joint tenants, the entire res must be included in his gross estate so far as it was derived from his property. Tyler v. United States, 281 U.S. 497, 50 S.Ct. 356, 74 L.Ed. 991, 69 A.L.R. 758. In Bailey v. United States, 31 F.Supp. 778, the Court of Claims held that the proceeds of insurance policies should be included in the estate of the insured where no power was reserved in the policies to change the beneficiary and where his estate would have been entitled to receive the proceeds if the beneficiary had died before him. The court had before it facts closely similar to those in the case at bar and relied on Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, in arriving at its decision. See, also, Broderick v. Keefe, 112 F.2d 293, and Klein v. United States, 283 U.S. 231, 51 S.Ct. 398, 75 L.Ed. 996. The language of Section 302(g) is of the broadest kind. It in terms includes in the gross estate of a decedent amounts receivable by all other beneficiaries. Only because of regulations and certain judicial decisions has Section 302(g) not been extended to cases where the insured has retained no interest in a policy taken out on his own life. As an original question, even such a policy might have been thought to fall within Section 302(g) because of its inherent testamentary character. But since the decision in Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, it is unnecessary to rely on the testamentary character of the transaction for it seems plain that when the death of the insured terminates all rights of his estate" }, { "docid": "11025589", "title": "", "text": "he had in the property.” Helvering v. Clifford, 309 U.S. 331, 336, 60 S.Ct. 554, 557, 84 L.Ed. 788. To the extent of the income from 300 shares of the stock there was no change in the economic position of either grantor. It would be useless to extend this opinion with an analysis of the decisions of the courts, because, when upon review of the decisions of the Tax Court this court “cannot separate the elements of a decision so as to identify a clear-cut mistake of law, the decision of the Tax Court must stand.” Dobson v. Commissioner of Internal Revenue, 320 U.S. 489, 502, 64 S.Ct. 239, 247, 88 L.Ed. —, —. The conclusion of the Tax Court, however, finds some support in the following court decisions: Griffiths v. Commissioner, 308 U.S. 355, 60 S.Ct. 277, 84 L.Ed. 319; Helvering v. Le Gierse, 312 U.S. 531, 61 S.Ct. 646, 85 L.Ed. 996; Helvering v. Mercantile-Commerce Bank & Trust Co., 8 Cir., 111 F.2d 224; White v. Higgins, 1 Cir., 116 F.2d 312; Lehman v. Commissioner, 2 Cir., 109 F.2d 99. It is contended, in the third place, that in determining the question of reciprocal consideration the motive of the decedents should be considered. Attention is directed to the preamble of the Haydn S. Cole agreement, reading: “That, whereas the party of the first part has been a stockholder in the St. Paul Fire and Marine Insurance Company for more than forty years and a director in said company for more than twenty-five years and intends that the stock he now owns in said company remain in his family for many years more and to accomplish that end creates this trust.” Petitioner contends that the motive to retain the ownership of the stock owned by Haydn S. Cole \"in his family for many years more” is inconsistent with the conclusion of the Tax Court and could not have been considered by it. There is nothing to indicate that the Tax Court .did not give this expressed motive of the decedent full consideration. Assuming that retention of ownership of the" }, { "docid": "9568713", "title": "", "text": "apparently imposed thereon by Helvering v. St. Louis Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, and Becker v. St. Louis Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. 35. Referring to the Klein case, it said: “The inescapable rationale of this decision, rendered by a unanimous Court, was that the statute taxes not merely those interests which are deemed to pass at death according to refined technicalities of the law of property. It also taxes inter vivos trans fers that are too much akin to testamentary-dispositions not to be subjected to the same excise. By bringing into the gross estate at his death that which the settlor gave contingently upon it, this Court fastened on the vital factor.” [309 U.S. 106, 60 S.Ct. 448, 84 L.Ed. 604, 125 A.L.R. 1368.] While the Hallock decision did not construe § 302(g), its reasoning is equally applicable to the interpretation of that section. So thought the Court of Appeals of the Second Circuit in Chase Nat’l Bank v. United States, 116 F.2d 625, when it declared it to be “plain that when the death of the insured terminates all rights of his estate to receive payment under the policy and fixes them unalterably in the beneficiary, under the provisions of Section 302(g) the proceeds must be added to the estate of the decedent for purposes of taxation.” In Broderick v. Keefe, 1 Cir., 112 F.2d 293, the same view was entertained. Where a possibility of reverter remains, the transfer, inter vivos, or testamentary takes effect only, upon death. Death is the “generating” source from which the authority for such taxes takes its being. Knowlton v. Moore, 178 U.S. 41, 20 S.Ct. 747, 44 L.Ed. 969; Tyler v. United States, 281 U.S. 497, 50 S.Ct. 356, 74 L.Ed. 991, 69 A.L.R. 758. It is idle to differentiate the present case from Helvering v. Hallock, supra, upon the ground that the contingencies here involved, unlike those in the Hallock case, are extremely remote. The court was in search of a guiding principle depending not upon illusive" }, { "docid": "23163684", "title": "", "text": "his death. The Equitable Life Assurance Society thereupon paid the widow $6,071.46 under the annuity contract, $18,928 under the life contract and $182.24 as accumulated dividends, making a total of $25,181.70. On these facts the Commissioner of Internal Revenue determined that the proceeds of the two contracts were includible in decedent's estate for estate tax purposes. The petitioners, as executors of the estate, were assessed a deficiency of $5,376.11. After paying that amount they filed a claim for refund. The claim was rejected. They then brought this suit for refund. The District Court sustained the action of the Commissioner and dismissed the complaint. 52 F. Supp. 704. The Second Circuit Court of Appeals affirmed this judgment. 144 F. 2d 373. An apparent conflict of authority among lower courts on the question presented led us to grant certiorari. Helvering v. Le Gierse, 312 U. S. 531, makes it plain that these two contracts, which must be considered together, contain none of the true elements of insurance risk. Section 302 (g) of the Act, relating to amounts receivable “as insurance under policies taken out by the decedent upon his own life,\" is therefore inapplicable. The sole question, then, is whether the proceeds of the contracts are includible in the decedent’s gross estate under § 302 (c) as the subject of a transfer intended to take effect in possession or enjoyment at or after the decedent’s death. That question we answer in the affirmative. Section 302 (c), as demonstrated by Helvering v. Hallock, 309 U. S. 106, reaches all inter vivos transfers which may be resorted to, as a substitute for a will, in making dispositions of property operative at death. It thus sweeps into the gross estate all property the ultimate possession or enjoyment of which is held in suspense until the moment of the decedent’s death or thereafter. Fidelity-Philadelphia Trust Co. v. Bothensies, 324 U. S. 108, 111. In so doing, § 302 (c) pierces all the verbiage of “unwitty diversities of the law of property.” Helvering v. Hallock, supra, 118. Testamentary dispositions of an inter vivos nature cannot escape the" }, { "docid": "3270157", "title": "", "text": "the policies.” In Industrial Trust Co. v. United States, supra, the facts were like those in the Bingham case but the insured died subsequent to the enactment of the Revenue Act of 1924, which introduced § 302(h), 26 U.S.C.A. Int.Rev.Acts, page 68. Although this section specifically referred to § 302(g), the court doubted whether it was applicable to insurance receivable by a beneficiary other than the executor and refused so to construe it for fear of the grave constitutional doubts in the Bingham case. We think that the Supreme Court has indicated by Helvering v. Hallock, 1940, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, and United States v. Jacobs, 1939, 306 U.S. 363, 59 S.Ct. 551, 83 L.Ed. 763, that the Bingham case is no longer to be followed. In the case before us the insured, in addition to paying all the premiums on the policies, retained in each of them the right of his estate to receive the proceeds should he survive the named beneficiary. Helvering v. Hallock, supra, held that the retention of such a possibility of reverter in the case of a transfer in trust was sufficient to include the trust property in the decedent’s gross estate. It was there decided that the crucial taxable transfer is not the technical conveyance of title, but rather the transfer of economic interests which only occurs when the settlor dies; only then is the beneficiary sure.of his interest. The beneficiary gets nothing unless and until the settlor predeceases him. It is then that the settlor’s string on the policy is cut. That case arose under § 302(c), Revenue Act 1926, as amended by Revenue Act 1932, § 803, 26 U.S.C.A. Int.Rev.Code § 811(c), but its reasoning is equally applicable to § 302(g). Commissioner v. Washer, 6 Cir., 1942, 127 F.2d 446, certiorari denied 317 U.S. 653, 63 S.Ct. 48, 87 L.Ed.-; Chase National Bank v. United States, 2 Cir., 1940, 116 F.2d 625; Bailey v. United States, 1940, 31 F.Supp. 778, 90 Ct.Cl. 644. It also expressly overruled the St. Louis Union Trust cases relied" }, { "docid": "9568712", "title": "", "text": "death, — a construction beginning with Chase Nat’l Bank v. United States, 278 U.S. 327, 49 S.Ct. 126, 73 L.Ed. 405, 63 A.L.R. 388, and reannounced in Bingham v. United States, 296 U.S. 211, 56 S.Ct. 180, 80 L.Ed. 160, and Industrial Trust Co. v. United States, 296 U.S. 220, 56 S.Ct. 182, 80 L.Ed. 191, and by many decisions of District Courts and Circuit Courts of Appeals. The Supreme Court, however, in Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, has dealt comprehensively with those reservations of power in transfers inter vivos, which must be accepted as incidents of ownership in determining includibility in gross estate of transfers made in trust, and has sought the “harmonizing principle” by which to determine whether the transfer is complete and irrevocable when made, or becomes so only upon the death of the grantor. It restored to full authority its decision in Klein v. United States, 283 U.S. 231, 51 S.Ct. 398, 75 L.Ed. 996, and freed it from the limitations apparently imposed thereon by Helvering v. St. Louis Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, and Becker v. St. Louis Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. 35. Referring to the Klein case, it said: “The inescapable rationale of this decision, rendered by a unanimous Court, was that the statute taxes not merely those interests which are deemed to pass at death according to refined technicalities of the law of property. It also taxes inter vivos trans fers that are too much akin to testamentary-dispositions not to be subjected to the same excise. By bringing into the gross estate at his death that which the settlor gave contingently upon it, this Court fastened on the vital factor.” [309 U.S. 106, 60 S.Ct. 448, 84 L.Ed. 604, 125 A.L.R. 1368.] While the Hallock decision did not construe § 302(g), its reasoning is equally applicable to the interpretation of that section. So thought the Court of Appeals of the Second Circuit in Chase Nat’l Bank v. United" }, { "docid": "11025588", "title": "", "text": "life beneficiary and the other decedent the nominal grantor.” In other words, the Tax Court held that the situation is the same as if one decedent had “exchanged” 300 of his shares for 300 shares of the other. It requires no citation of authority for the proposition that in an exchange the property received is consideration for the property given. It can not, therefore, fairly be said that the Tax Court made no finding in respect of consideration. Assuming, arguendo, that no specific finding of consideration was made, the court’s decision may be sustained on another basis. Each decedent by the trusts created may be regarded as having “retained for his life * * * the right to income from” the 300 shares which he himself transferred to the trust created by him on the theory of family relationship and equivalents. For, as a result of the terms of the identical and simultaneous trusts and of “the familial relationship”, each decedent “retained the substance of full enjoyment of all the rights [for life] which previously he had in the property.” Helvering v. Clifford, 309 U.S. 331, 336, 60 S.Ct. 554, 557, 84 L.Ed. 788. To the extent of the income from 300 shares of the stock there was no change in the economic position of either grantor. It would be useless to extend this opinion with an analysis of the decisions of the courts, because, when upon review of the decisions of the Tax Court this court “cannot separate the elements of a decision so as to identify a clear-cut mistake of law, the decision of the Tax Court must stand.” Dobson v. Commissioner of Internal Revenue, 320 U.S. 489, 502, 64 S.Ct. 239, 247, 88 L.Ed. —, —. The conclusion of the Tax Court, however, finds some support in the following court decisions: Griffiths v. Commissioner, 308 U.S. 355, 60 S.Ct. 277, 84 L.Ed. 319; Helvering v. Le Gierse, 312 U.S. 531, 61 S.Ct. 646, 85 L.Ed. 996; Helvering v. Mercantile-Commerce Bank & Trust Co., 8 Cir., 111 F.2d 224; White v. Higgins, 1 Cir., 116 F.2d 312; Lehman" }, { "docid": "11315893", "title": "", "text": "not to be subjected to the same excise. By bringing into the gross estate at his death that which the settlor gave contingently upon it, this Court fastened on the vital factor.” [page 112 of 309 U. S., page 448 of 60 S.Ct., 84 L.Ed. 604, 125 A.L.R. 1368] “* * * It therefore becomes important to inquire whether the technical forms in which interests contingent upon death are cast should control our decision. If so, it becomes necessary to determine whether the differing terms of conveyance now in issue approximate more closely those used in the Klein case and are therefore governed by it, or have a greater verbal resemblance to those that saved the tax in the St. Louis Trust cases. Such an essay in linguistic refinement would still further embarrass existing intricacies. It might demonstrate verbal ingenuity, but it could hardly strengthen the rational foundations of law. * * *” [pages 116, 117 of 309 U.S., page 450 of 60 S.Ct., 84 L.Ed. 604, 125 A.L.R. 1368] “Our real problem, therefore, is to determine whether we are to adhere to a harmonizing principle in the construction of § 302(c), or whether we are to multiply gossamer distinctions between the present cases, and the three earlier ones. Freed from the distinctions introduced by the St. Louis Trust cases, the Klein case furnishes such a harmonizing principle.” [page 118 of 309 U.S., page 451 of 60 S.Ct., 84 L.Ed. 604, 125 A.L.R. 1368] See, also, Commissioner v. Wilder’s Estate, 5 Cir., 118 F.2d 281. It is not coining a phrase to say that taxation is a practical matter, dealing with practical problems. The practical effect of the annuity contracts was to reserve to Mrs. Clise the enjoyment of the property transferred and to postpone the fruition of the economic benefits thereof to the second annuitants until her death. In the light of the Hallock case the transfers were “too much akin to testamentary dispositions not to be subjected to the same excise.” As we read the statute and understand the law of the Klein and Hallock cases, the Commissioner’s" } ]

[ { "docid": "12620685", "title": "", "text": "conclude the referral and actions taken with respect to the default judgment to be valid and to confer jurisdiction for the district court’s dispositive action. VI. DAMAGES REFERRAL We now discuss the basis of authority for the damages referral. Section 636(b)(1)(A) may not be used as the basis for the referral due to the fact that a determination of damages is not normally a pretrial matter, as required by (A). See Estate of Conners v. O’Connor, 6 F.3d 656, 659 (9th Cir.1993); see also Homico Constr. & Dev. Co. v. Ti-Bert Sys., Inc., 939 F.2d 392, 394 n. 1 (6th Cir.1991); Bennett, 976 F.2d at 998 n. 5; Massey, 7 F.3d at 510; Paris v. United States Dep’t of Hous. & Urban Dev., 795 F.Supp. 513, 516 (D.R.I.1992), rev’d on other grounds by 988 F.2d 236 (1st Cir.1993); Pettyjohn v. Sullivan, 801 F.Supp. 503, 506 (W.D.Okla.1992), rev’d sub nom. on other grounds Pettyjohn v. Shaldla, 23 F.3d 1572 (10th Cir.1994); West v. Redman, 530 F.Supp. 546, 547 (D.Del.1982) (all concluding that post-judgment motions, such as for attorney’s fees or sanctions, cannot fall under § 636(b)(1)(A) because they are not pretrial matters). Though § 636(b)(1)(B) could conceivably be used as the basis, and was explicitly cited by the district court as its basis of authority for this referral, we find it problematic to treat this reference as sufficiently analogous to the eight types of matters listed in (B), as required by Bennett, 976 F.2d at 997. Thus, we must turn to another basis of authority for the damages referral. 28 U.S.C. § 636(b)(3) is a broad provision permitting assignment by the district court to the magistrate judge “such additional duties as are not inconsistent with the Constitution and the laws of the United States.” The Supreme Court in Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), discussed at some length the proper interpretation of this subsection: Read literally and without reference to the context in which they appear, [28 U.S.C. § 636(b)(3)] might encompass any assignment that is not explicitly prohibited by statute or by" } ]

[ { "docid": "16438517", "title": "", "text": "a motion when they have an identical effect.”). The Supreme Court has also indicated that the listed exceptions from § 636(b)(1)(A) are not exclusive. In Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the Court considered whether the Act authorized magistrate judges to conduct jury selection. The Court reasoned: [Congress] did not identify the selection of a jury as either a “dispositive” matter covered by § 636(b)(1)(B) or a “nondis-positive” pretrial matter governed by § 636(b)(1)(A). To the limited extent that it fits into either category, we believe jury selection is more akin to those precisely defined, “dispositive” matters for which subparagraph (B) meticulously sets forth a de novo review procedure. Id. at 873-74, 109 S.Ct. 2237. Thus, even though the statute does not list jury selection as one of the exceptions from sub-paragraph (A), the Court rejected the possibility that Congress intended it to be considered one of the pretrial matters that can be delegated to the final authority of a magistrate judge. The foregoing discussion demonstrates that there is significant precedent to support the conclusion that we do not simply look to the list of excepted pretrial matters in order to determine the magistrate judge’s authority. Instead, we must look to the effect of the motion, in order to determine whether it is properly characterized as “dispositive or non-dispositive of a claim or defense of a party.” Maisonville, 902 F.2d at 747. The district court erred when it concluded that the involuntary medication order was not a final order and was therefore not dispositive. The court based its analysis of the non-dispositive nature of the order on the Sell Court’s statement that an order to forcibly medicate “is completely separate from the merits of the action.” Sell, 539 U.S. at 176, 123 S.Ct. 2174 (internal quotation marks omitted). This analysis conflates the meaning of “final” in two very different contexts: final as opposed to collateral and final as opposed to non-dispositive. It is quite conceivable that an order could not be “final” due to its collateral nature and yet still be “final”" }, { "docid": "6616702", "title": "", "text": "“such additional duties as are not inconsistent with the Constitution and laws of the United States.” The list of matters excluded from magistrate judges’ broadly stated power to hear and determine does not mention the imposition of sanctions. Nor is the imposition of sanctions prohibited to magistrate judges by any other provision of law. A literal reading of the Act would thus corn pel the conclusion that magistrate judges are empowered to impose sanctions. Courts, however, have not read the list of exclusions literally. Where the exercise of an unmentioned judicial power would be so similar in character to the powers statutorily withheld from magistrate judges that it would be difficult to understand why Congress would have drawn a distinction, courts have generally ruled that Congress intended also to withhold the unmentioned power. See Williams v. Beemiller, Inc., 527 F.3d 259, 265 (2d Cir.2008) (noting that the list of exclusions in § 636(b)(1)(A) is “non-exhaustive”). Because many of the powers withheld from magistrate judges by § 636(b)(1)(A) involve the determination of the suit or of a claim or of a party’s right to maintain the claim in the action, courts have generally concluded that other rulings which would have the same effect of disposing of a party’s claim (or of a defense) were also intended by Congress to be excluded from the powers of magistrate judges. Courts sometimes therefore employ an imprecise shorthand, referring to the rulings over which magistrate judges are granted authority as “nondispositive” of a party’s claims, and to rulings in the class withheld as “dispositive” of a party’s claims. See Gomez v. United States, 490 U.S. 858, 868, 873-74, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989); Williams, 527 F.3d at 264-65. Within this framework, courts have decided that, in addition to the powers explicitly withheld from magistrate judges by § 636(b)(1)(A), the power of magistrate judges to “determine” does not extend to rulings that remand a case to state court, Williams, 527 F.3d at 266, that enter default judgment, Callier v. Gray, 167 F.3d 977, 981 (6th Cir.1999), that deny a motion to certify a district" }, { "docid": "6616704", "title": "", "text": "court order for interlocutory appeal, Vitols v. Citizens Banking Co., 984 F.2d 168, 169-70 (6th Cir.1993), that deny enforcement of an agency subpoena, N.L.R.B. v. Frazier, 966 F.2d 812, 818 (3d Cir.1992), and that deny a motion to proceed in forma pauperis, Woods v. Dahlberg, 894 F.2d 187, 187 (6th Cir.1990). In Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the Supreme Court, departing still further from a literal reading of the statute, ruled that the selection of the jury in a criminal case, which is not listed among the functions a magistrate judge is not authorized to perform, and which is not “dispositive” of a party’s claim, is nonetheless not within a magistrate judge’s powers. Id. at 875-76, 109 S.Ct. 2237. The Court approached the question by tracing the history of Con gress’s incremental increases in the powers of these officers through a series of statutory amendments (while gradually upgrading their titular designation from Commissioner, to Magistrate, to Magistrate Judge). Id. at 865-71, 109 S.Ct. 2237. The Court noted Congress’s gradually increasing confidence in magistrate judges, and it then asked whether these indicia of Congress’s confidence were sufficient to support the conclusion that Congress intended its general grant of authority to include jury selection in a criminal case. Id. at 869-72, 109 S.Ct. 2237. Noting that Congress continued to require consent of the parties as a prerequisite to a magistrate judge’s authorization to try jury cases, see id. at 870-71, 109 S.Ct. 2237, and that jury selection was enormously important for the conduct of a fair criminal trial, see id. at 873,109 S.Ct. 2237, the Court concluded that § 636 should not be construed to authorize magistrate judges to select juries in criminal trials, at least absent the consent of the defendant, id. at 872, 109 S.Ct. 2237. According to this approach, it becomes pertinent to inspect Congress’s amendments to the Act over time to see what light they shed on changes in Congress’s confidence in magistrate judges as reflected in increasing duties and powers entrusted to them by the Act. The provisions" }, { "docid": "4508030", "title": "", "text": "authority to consider the equitable allocation issue just after the Magistrate Judge entered its scheduling order and long before the Magistrate Judge had begun to consider the merits of this issue, much less receive the parties’ submissions or hold a hearing. We note that Beazer has failed on appeal to respond to any of Mead’s arguments on this point. Of course, an appellee does not concede that a judgment should be reversed by failing to respond to an appellant's argument in favor of reversal. See Singletary v. Conti nental Illinois Nat'l Bank, 9 F.3d 1236, 1240 (7th Cir.1993). However, the appellee \"waives, as a practical matter anyway, any objections not obvious to the court to specific points urged by the [appellant].” Hardy v. City Optical Inc., 39 F.3d 765, 771 (7th Cir.1994) (citations omitted). . The magistrate judge may hear and decide non-dispositive pretrial matters but may only issue a report and recommendation on dis-positive pre-trial matters. Compare 28 U.S.C. § 636(b)(1)(A) with id. at § 636(b)(1)(B); see also Fed.R.Civ.P. 72; United States v. Polishan, 336 F.3d 234, 239 (3d Cir.2003); NLRB v. Frazier, 966 F.2d 812, 816 (3d Cir.1992). . This interpretation is supported by the legislative history of the Magistrate’s Act and its amendments. See, e.g., H.R.Rep. No. 94-1609, at 7 (1976), U.S.Code & Cong. & Admin.News 1976, pp. 6162, 6167 (explaining that the magistrate judge is to \"assist the district judge in a variety of pretrial and preliminary matters thereby facilitating the ultimate and final exercise of the adjudicatory function at the trial of the case.”); see also Gomez v. United States, 490 U.S. 858, 872 & n. 23, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (collecting legislative history for the proposition that “magistrates should handle subsidiary matters to enable district judges to concentrate on trying cases”). . At least one circuit court has suggested in dictum that an improper referral under § 636(b)(1) could be re-characterized as a designation of a magistrate judge to serve as a special master per § 636(b)(2) and Rule 53(b). In Callier v. Gray, 167 F.3d 977, 983 (6th Cir.1999), the" }, { "docid": "19825408", "title": "", "text": "claim based upon the New Jersey State Constitution, Article 1, Paragraph 1. See Moving Brief at 1. According to Harter, he seeks to assert these state claims because, if he prevails on his cause of Federal ADEA action, “he will be entitled to damages which would not otherwise be available under the ADEA” Id. at 4. The motion to amend was denied by Judge Cavanaugh on 28 May 1993. See 28 May 1993 Cavanaugh Order. Discussion A. Standard of Review of Decision by Judge Cavanaugh Harter now appeals the 28 May 1993 Cavanaugh Order denying his motion to amend the Complaint. He argues that the 28 May 1993 Cavanaugh Order is clearly erroneous and contrary to law. Pursuant to 28 U.S.C. § 636(b)(1), Rule 72 of the Federal Rules of Civil Procedure and Rule 40 A of the General Rules of the District Court for the District of New Jersey, a United States Magistrate Judge may hear “dispositive” and “nondispositive” motions assigned by the district court. With regard to nondispositive motions, “the district court may modify the magistrate [judge’s] order only if the district court finds that the magistrate [judge’s] ruling was clearly erroneous or contrary to law.” Gomez v. United States, 490 U.S. 858, 868, 109 S.Ct. 2237, 2244, 104 L.Ed.2d 923 (1989); Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir.1992); see also 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). Upon review by a district court of a nondispositive decision, the magistrate judge is accorded wide discretion. National Labor Relations Bd. v. Frazier, 966 F.2d 812, 815 (3d Cir.1992); Hanntz v. Shiley, Inc. Div. of Pfizer, Inc., 766 F.Supp. 258, 262 (D.N.J.1991); Republic of Philippines v. Westinghouse Electric Corp., 132 F.R.D. 384, 387 (D.N.J.1990); Dome Petroleum, Ltd. v. Employers Mut. Liability Ins. Co., 131 F.R.D. 63, 65 (D.N.J.1990); Schroeder v. Boeing Commercial Airplane Co., Div. of Boeing Corp., 123 F.R.D. 166, 169 (D.N.J.1988). With respect to dis-positive motions the district court must make a de novo determination of those portions of the magistrate judge’s report to which a litigant has filed an objection. Gomez, 490 U.S. at" }, { "docid": "22183458", "title": "", "text": "an additional duty under § 686(b)(3). See United States v. Torres, 258 F.3d 791, 795-96 (8th Cir.2001); United States v. Dees, 125 F.3d 261, 265 (5th Cir.1997); United States v. Ciapponi, 77 F.3d 1247, 1250-52 (10th Cir.1996); United States v. Williams, 23 F.3d 629, 633 (2d Cir.1994). It is true that the taking of guilty pleas is not listed among the duties that can be designated to magistrate judges “to hear and determine.” 28 U.S.C. § 636(b)(1)(A); see also Dees, 125 F.3d at 264 (for discussion). It is likewise true that the taking of guilty pleas is not listed among the duties that can be referred to magistrate judges on a recommendation-only basis. See 28 U.S.C. § 636(b)(1)(B). Therefore, the question comes down to whether the taking of guilty pleas is covered by the catchall section, § 636(b)(3): an additional duty not inconsistent with the Constitution or laws of the United States. The answer depends, first and foremost, on whether the parties have consented, and secondly, on whether the additional duties “bear some relation to the specified duties” that magistrate judges can perform. Peretz, 501 U.S. at 930-31, 111 S.Ct. 2661 (quoting Gomez v. United States, 490 U.S. 858, 864, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989)). The importance of the parties’ consent is illustrated by two Supreme Court cases. In Gomez, the defendant had objected to a magistrate judge conducting jury voir dire in a felony case. The Supreme Court phrased the issue on appeal as “whether presiding at the selection of a jury in a felony trial without the defendant’s consent is among those ‘additional duties’” that can be assigned to a magistrate judge. Gomez, 490 U.S. at 860, 109 S.Ct. 2237. The Court held that it was not and reversed the defendant’s conviction. Two years later, in Peretz, the Court affirmed the defendant’s felony conviction where, a magistrate judge, with the consent of the parties, had presided over jury selection. Peretz, 501 U.S. at 927-28, 936, 111 S.Ct. 2661. The Court explained: This case differs critically from Gomez because petitioner’s counsel, rather than objecting to the Magistrate’s" }, { "docid": "12831426", "title": "", "text": "the magistrate judge in the instant case must be independently delegable to facilitate the performance of “additional duties.” See 28 U.S.C. § 636(b)(3). Harris maintains that § 636(b)(3) cannot be the proper basis for the magistrate judge’s exercise of authority. Harris urges that, “[i]f a magistrate [judge] is prohibited from selecting a jury at the onset of the proceedings because of the nature of the function, it follows, a fortiori, that he is also prohibited from communicating with a juror regarding her competency to proceed with deliberations.” Appellant’s Brief at 11 (citing Gomez v. United States, 490 U.S. 858, 875-76, 109 S.Ct. 2237, 2247-48,104 L.Ed.2d 923 (1989) (Gomez)). We agree. The ministerial tasks of supervising a jury and receiving its verdict on behalf of an Article III judge are among those additional duties delegable under § 636(b)(3). See United States v. Johnson, 962 F.2d 1308, 1312 (8th Cir.) (citing United States v. Demarrias, 876 F.2d 674, 677 (8th Cir.1989) (Demarrias)), cert. denied, 506 U.S. 928, 113 S.Ct. 358, 121 L.Ed.2d 271 (1992); see also United States v. Foster, 57 F.3d 727, 732 (9th Cir.1995) (agreeing with this court’s holding in Demarrias and noting that the magistrate judge “did nothing more than accept and file the verdict”). By contrast, in Gomez, the Supreme Court excluded from this category of judicial functions acts such as voir dire because it involves making judicial determinations. 490 U.S. at 874-75, 109 S.Ct. at 2247-48. Specifically, the Court held that jury selection is not an additional duty, and further noted that, in performing such functions, “the court must scrutinize not only spoken words but also gestures and attitudes of all participants to ensure the jury’s impartiality.” Id. at 875, 109 S.Ct. at 2247; see also Peretz, 501 U.S. at 933, 111 S.Ct. at 2667-68 .(holding that voir dire is not an “additional duty” under § 636(b)(3), although a district court may permit a magistrate judge to conduct voir dire in a criminal trial in accordance with the defendant’s consent). Similarly, in Demarrias, this court held that a district court judge may allow a magistrate judge to" }, { "docid": "6616703", "title": "", "text": "a claim or of a party’s right to maintain the claim in the action, courts have generally concluded that other rulings which would have the same effect of disposing of a party’s claim (or of a defense) were also intended by Congress to be excluded from the powers of magistrate judges. Courts sometimes therefore employ an imprecise shorthand, referring to the rulings over which magistrate judges are granted authority as “nondispositive” of a party’s claims, and to rulings in the class withheld as “dispositive” of a party’s claims. See Gomez v. United States, 490 U.S. 858, 868, 873-74, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989); Williams, 527 F.3d at 264-65. Within this framework, courts have decided that, in addition to the powers explicitly withheld from magistrate judges by § 636(b)(1)(A), the power of magistrate judges to “determine” does not extend to rulings that remand a case to state court, Williams, 527 F.3d at 266, that enter default judgment, Callier v. Gray, 167 F.3d 977, 981 (6th Cir.1999), that deny a motion to certify a district court order for interlocutory appeal, Vitols v. Citizens Banking Co., 984 F.2d 168, 169-70 (6th Cir.1993), that deny enforcement of an agency subpoena, N.L.R.B. v. Frazier, 966 F.2d 812, 818 (3d Cir.1992), and that deny a motion to proceed in forma pauperis, Woods v. Dahlberg, 894 F.2d 187, 187 (6th Cir.1990). In Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the Supreme Court, departing still further from a literal reading of the statute, ruled that the selection of the jury in a criminal case, which is not listed among the functions a magistrate judge is not authorized to perform, and which is not “dispositive” of a party’s claim, is nonetheless not within a magistrate judge’s powers. Id. at 875-76, 109 S.Ct. 2237. The Court approached the question by tracing the history of Con gress’s incremental increases in the powers of these officers through a series of statutory amendments (while gradually upgrading their titular designation from Commissioner, to Magistrate, to Magistrate Judge). Id. at 865-71, 109 S.Ct. 2237. The Court" }, { "docid": "6616676", "title": "", "text": "a higher court will need to decide the question.” Id. That said, Judge Leval and I have now provided some modest assistance to notes and comments editors of law reviews in search of an agenda, so we need not go mano a mano on the concept of “dicta within dicta.” Pursuant to 28 U.S.C. § 636(b)(1)(A), magistrate judges are authorized to resolve “pretrial matter[s]” by order subject to review by district judges for clear error. Excluded from this grant of authority are dispositive motions, such as motions “for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information ..., to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim ..., and to involuntarily dismiss an action.” 28 U.S.C. § 636(b)(1)(A); see Williams v. Beemiller, Inc., 527 F.3d 259, 265 (2d Cir.2008) (concluding that the list of motions set forth in this subsection is “non-exhaustive”). Dispositive motions, and certain other matters, may be submitted to a magistrate judge for a report and recommendation, which the district court then reviews de novo. See 28 U.S.C. § 636(b)(1)(B). The Supreme Court has construed this statutory grant of authority to mean that “ ‘nondispositive’ pretrial matter[s] [are] governed by § 636(b)(1)(A)” and “ ‘dispositive’ matter[s] [are] covered by § 636(b)(1)(B).” Gomez v. United States, 490 U.S. 858, 873-74, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989); see also Fed.R.Civ.P. 72(a) (“When a pretrial matter not dispositive of a party’s claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision.” (emphasis added)). Although this Court has not determined whether an order granting Rule 11 sanctions is “dispositive” or “nondispositive” of a claim, other courts have. The Sixth and Seventh Circuits have held that decisions on Rule 11 motions are dispositive of a claim and are therefore not properly resolved by order of a magistrate judge. In Bennett v. General Caster Service" }, { "docid": "6616677", "title": "", "text": "submitted to a magistrate judge for a report and recommendation, which the district court then reviews de novo. See 28 U.S.C. § 636(b)(1)(B). The Supreme Court has construed this statutory grant of authority to mean that “ ‘nondispositive’ pretrial matter[s] [are] governed by § 636(b)(1)(A)” and “ ‘dispositive’ matter[s] [are] covered by § 636(b)(1)(B).” Gomez v. United States, 490 U.S. 858, 873-74, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989); see also Fed.R.Civ.P. 72(a) (“When a pretrial matter not dispositive of a party’s claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision.” (emphasis added)). Although this Court has not determined whether an order granting Rule 11 sanctions is “dispositive” or “nondispositive” of a claim, other courts have. The Sixth and Seventh Circuits have held that decisions on Rule 11 motions are dispositive of a claim and are therefore not properly resolved by order of a magistrate judge. In Bennett v. General Caster Service of N. Gordon Co., the Sixth Circuit reasoned that “[n]othing in the [Federal Magistrates] Act expressly vests magistrate judges with jurisdiction to enter orders imposing Rule 11 sanctions” and “Rule 72(a) authorizes a magistrate judge to enter an order only as to a ‘pretrial matter ... ’ that is not dispositive of a ‘claim or defense of a party.’ ” 976 F.2d 995, 998 (6th Cir.1992). Observing that the “magistrate judge’s purported order entered pursuant to appellees’ Rule 11 motion resulted in an award of money damages,” the Sixth Circuit concluded that “[n]othing remained but to execute the judgment; therefore, this purported order was dispositive of the Rule 11 matter and, consequently, dispositive of a ‘claim.’ ” Id. As such, that court concluded, a Rule 11 motion cannot be resolved by an order of a magistrate judge; rather, “[a] magistrate judge should ... issue a report and recommendation for de novo review by the district court.” Id. In further support of this conclusion, the Sixth Circuit noted that “Congress specifically withheld from magistrate judges jurisdiction" }, { "docid": "8025871", "title": "", "text": "a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. Pretrial matters that a magistrate judge is precluded from “determining” pursuant to § 636(b)(1)(A) are called “dispositive” because they are “dispositive of a claim or defense of a party.” Fed. R.Civ.P. 72. In determining whether a particular motion is dispositive, this court undertakes functional analysis of the mo tion’s potential effect on litigation. The list of dispositive motions contained in § 636(b)(1)(A) is nonexhaustive, and unlisted motions that are functionally equivalent to those listed in § 636(b)(1)(A) are also dispositive. See Callier v. Gray, 167 F.3d 977, 981 (6th Cir.1999) (holding that a motion for default judgment is dispositive because it is “substantially similar to several of the listed motions”); Massey v. City of Ferndale, 7 F.3d 506, 509-10 (6th Cir.1993) (holding that a motion for Rule 37 sanctions is dispositive); Vitols v. Citizens Banking Co., 984 F.2d 168, 169-70 (6th Cir.1993) (holding that a motion to certify a district court order for interlocutory appeal is dispositive); Bennett v. General Caster Serv., 976 F.2d 995, 997 (6th Cir.1992) (holding that a motion for Rule 11 sanctions is dispositive); United States Fid. & Guar. Co. v. Thomas Solvent Co., 955 F.2d 1085 (6th Cir.1992) (holding that because a motion to realign parties would either destroy or preserve diversity jurisdiction, motions to realign are dispositive); Woods v. Dahlberg, 894 F.2d 187, 187-88 (6th Cir.1990) (holding that a motion to proceed in forma pauperis is dispositive because it is the functional equivalent of an involuntary dismissal). If a motion is dispositive, a magistrate judge may issue only proposed findings and recommended dispositions in response" }, { "docid": "12831425", "title": "", "text": "delegation of authority to a magistrate judge, failure to do so immediately does not constitute waiver of the right to appeal. See Fowler v. Jones, 899 F.2d 1088,1092-93 (11th Cir.1990) (rejecting waiver argument and reversing and remanding for new trial where parties failed to contest magistrate judge’s authority until after trial). Accordingly, we hold that Harris did not consent to the magistrate judge’s jurisdiction nor did Harris waive his right to challenge that authority on appeal. Where no consent is given under § 636(e), a magistrate judge is confined to his or her limited authority under the remaining provisions of the Act. Folk argues that the magistrate judge’s authority to supervise the jury deliberations, including the dismissal of a juror, was properly delegated as an additional duty pursuant to § 636(b)(3). To be sure, “[a] purported section 636(b) referral may not act as a section 636(e) referral and bypass the consent requirement of that section.” Reiter, 104 F.3d at 1073-74 (citing In re Wickline, 796 F.2d 1055, 1058 (8th Cir.1986)). Therefore, the authority conferred upon the magistrate judge in the instant case must be independently delegable to facilitate the performance of “additional duties.” See 28 U.S.C. § 636(b)(3). Harris maintains that § 636(b)(3) cannot be the proper basis for the magistrate judge’s exercise of authority. Harris urges that, “[i]f a magistrate [judge] is prohibited from selecting a jury at the onset of the proceedings because of the nature of the function, it follows, a fortiori, that he is also prohibited from communicating with a juror regarding her competency to proceed with deliberations.” Appellant’s Brief at 11 (citing Gomez v. United States, 490 U.S. 858, 875-76, 109 S.Ct. 2237, 2247-48,104 L.Ed.2d 923 (1989) (Gomez)). We agree. The ministerial tasks of supervising a jury and receiving its verdict on behalf of an Article III judge are among those additional duties delegable under § 636(b)(3). See United States v. Johnson, 962 F.2d 1308, 1312 (8th Cir.) (citing United States v. Demarrias, 876 F.2d 674, 677 (8th Cir.1989) (Demarrias)), cert. denied, 506 U.S. 928, 113 S.Ct. 358, 121 L.Ed.2d 271 (1992); see also United" }, { "docid": "22573054", "title": "", "text": "in question. Second, we must consider whether the delegation of the duty to a magistrate judge offends the principles of Article III of the Constitution. We turn first to the statutory question. A. The statutory authority of a magistrate judge is set out in 28 U.S.C. § 636 (The Magistrates Act). Among other things, the Act provides: (b)(1) Notwithstanding any provision of law to the contrary— (A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion ... to dismiss or quash an indictment or information made by the defendant, [or] to suppress evidence in a criminal case____ A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law. (B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A).... 28 U.S.C. § 636(b)(l)(A)-(B). Apart from this express assignment of duties, the Act further states that “[a] magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” 28 U.S.C. § 636(b)(3). The Supreme Court construed the statutory bases of magisterial authority in criminal matters in two recent decisions, Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991), and Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). In both cases, the Court considered whether Congress intended for magistrate judges to have the power to conduct voir dire. In Gomez, the Court held that the Magistrates Act did not confer upon magistrate judges the unlimited authority to oversee voir dire. Gomez, 490 U.S. at 873-76, 109 S.Ct. at 2247-48. Peretz, however, clarified and narrowed the Gomez holding by reading the Magistrates Act to permit magistrate judges to conduct voir dire with the parties’ consent. Peretz, 501 U.S. at" }, { "docid": "22946757", "title": "", "text": "judge found that Freixas knowingly and voluntarily waived any conflict in her representation. Id. We upheld the magistrate judge’s authority to make that determination. Id. at 1319. Notably, the competency and knowledge requirements for waiving a right to conflict-free representation are substantially the same as the requirements for waiving right to assistance of counsel entirely, which is a prerequisite to representing oneself. Godinez v. Moran, 509 U.S. 389, 399-400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (stating that a defendant must only “competently and intelligently” choose self-representation, just as he must “knowingly and intelligently” forgo his right to a lawyer). Thus, the determinations made by the magistrate judge in Freixas were quite similar to those that would ordinarily.be made by a magistrate judge deciding a motion for self-representation. Our holding in Freixas supports allowing a magistrate judge to decide Schultz’s motion. Finally, other circuits have expressly stated that magistrate judges have the authority to decide motions for self-representation and substitute counsel. See, e.g., United States v. Modena, 302 F.3d 626, 630 (6th Cir.2002) (citing § 636(b)(1)(A) and stating that “[a] magistrate judge is authorized by statute to determine whether a criminal defendant has effectively waived the right to counsel”); United States v. Brown, 79 F.3d 1499, 1503 (7th Cir.1996) (“Title 28 U.S.C. § 636(b)(1)(A) permits district judges to designate non-Article III magistrate judges for the determination of nondispositive pretrial motions, such as motions for substitute counsel.”). Against all of this precedent, Schultz cites no case that holds that determining whether a defendant may waive his right to counsel and represent himself under the Sixth Amendment and Faretta is beyond the statutory authority given to magistrate judges under 28 U.S.C. § 636. Schultz’s best argument derives from the Supreme Court’s opinions in Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), and Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991). In Gomez the Court decided that conducting jury selection was beyond the authority of a magistrate judge. 490 U.S. at 876," }, { "docid": "19825409", "title": "", "text": "modify the magistrate [judge’s] order only if the district court finds that the magistrate [judge’s] ruling was clearly erroneous or contrary to law.” Gomez v. United States, 490 U.S. 858, 868, 109 S.Ct. 2237, 2244, 104 L.Ed.2d 923 (1989); Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir.1992); see also 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). Upon review by a district court of a nondispositive decision, the magistrate judge is accorded wide discretion. National Labor Relations Bd. v. Frazier, 966 F.2d 812, 815 (3d Cir.1992); Hanntz v. Shiley, Inc. Div. of Pfizer, Inc., 766 F.Supp. 258, 262 (D.N.J.1991); Republic of Philippines v. Westinghouse Electric Corp., 132 F.R.D. 384, 387 (D.N.J.1990); Dome Petroleum, Ltd. v. Employers Mut. Liability Ins. Co., 131 F.R.D. 63, 65 (D.N.J.1990); Schroeder v. Boeing Commercial Airplane Co., Div. of Boeing Corp., 123 F.R.D. 166, 169 (D.N.J.1988). With respect to dis-positive motions the district court must make a de novo determination of those portions of the magistrate judge’s report to which a litigant has filed an objection. Gomez, 490 U.S. at 868, 109 S.Ct. at 2243-44; Haines, 975 F.2d at 91; 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(a); General Rule 40(D)(5). In this case, the 28 May 1993 Cavanaugh Order concerned a nondispositive motion; accordingly, it may be modified only if Judge Cavanaugh’s decision is either clearly erroneous or contrary to law. B. Standard of Review of Motion to Amend the Complaint Federal Rule of Civil Procedure 15(a) provides that a plaintiff may, as a matter of right, amend the complaint one time before a responsive pleading is served. See Fed. R.Civ.P. 15(a). After the complaint has been amended once or after a responsive pleading has been served, however, a party may amend the complaint only upon leave of the court or written consent of the adverse party. See id. Leave to amend, as embodied in Rule 15, is not without limitation; indeed, “the Supreme Court has delineated factors which weigh against amendment.” Dole v. Arco Chem. Co., 921 F.2d 484, 486-87 (3d Cir.1990). These factors include: undue delay, bad faith or dilatory motive on the part" }, { "docid": "305895", "title": "", "text": "United States, 490 U.S. 858, 868, 109 S.Ct. 2237, 2244, 104 L.Ed.2d 923 (1989), Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir.1992); see also 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). Upon review by a district court of a nondispositive matter, the magistrate judge is accorded wide discretion. National Labor Relations Board v. Frazier, 966 F.2d 812, 815 (3d Cir.1992); Hanntz v. Shiley, Inc. Div. of Pfizer, Inc., 766 F.Supp. 258, 262 (D.N.J.1991); Republic of Philippines v. Westinghouse Electric Corp., 132 F.R.D. 384, 387 (D.N.J.1990); Dome Petroleum Ltd. v. Employers Muiual Liability Ins. Co., 131 F.R.D. 63, 65 (D.N.J.1990); Schroeder v. Boeing Commercial Airplane Co., Div. of Boeing Corp., 123 F.R.D. 166, 169 (D.N.J.1988); Environmental Tectonics Corp., International v. W.S. Kirkpatrick & Co., 659 F.Supp. 1381, 1391 (D.N.J.1987), aff'd in part and rev’d in part, 847 F.2d 1052 (3d Cir.1988). With respect to dispositive motions, the district court must make a de novo determination of those portions of the magistrate judge’s report to which a litigant has filed an objection. Gomez, 490 U.S. at 868, 109 S.Ct. at 2244; Haines, 975 F.2d at 91; 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(a); General Rule 40(D)(5). In this case, the 20 July 1993 Order concerned a nondispositive motion; accordingly, it may be modified if Judge Cava-naugh’s decision is clearly erroneous or contrary to law., B. Standard for Granting Leave to Amend Answer Beneficial asserts that Judge Cavanaugh’s 20 July 1993 Order, denying Beneficial leave to amend the Answer to include the Proposed Amendments, was “clearly erroneous and contrary to law.” Moving Brief at 2. Federal Rule of Civil Procedure 15(a) (“Rule 15(a)”) provides in relevant part, [I]f the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may ... amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be given freely when justice requires. Fed.R.Civ.P. 15(a). Because Beneficial’s attempt to" }, { "docid": "8025872", "title": "", "text": "977, 981 (6th Cir.1999) (holding that a motion for default judgment is dispositive because it is “substantially similar to several of the listed motions”); Massey v. City of Ferndale, 7 F.3d 506, 509-10 (6th Cir.1993) (holding that a motion for Rule 37 sanctions is dispositive); Vitols v. Citizens Banking Co., 984 F.2d 168, 169-70 (6th Cir.1993) (holding that a motion to certify a district court order for interlocutory appeal is dispositive); Bennett v. General Caster Serv., 976 F.2d 995, 997 (6th Cir.1992) (holding that a motion for Rule 11 sanctions is dispositive); United States Fid. & Guar. Co. v. Thomas Solvent Co., 955 F.2d 1085 (6th Cir.1992) (holding that because a motion to realign parties would either destroy or preserve diversity jurisdiction, motions to realign are dispositive); Woods v. Dahlberg, 894 F.2d 187, 187-88 (6th Cir.1990) (holding that a motion to proceed in forma pauperis is dispositive because it is the functional equivalent of an involuntary dismissal). If a motion is dispositive, a magistrate judge may issue only proposed findings and recommended dispositions in response to that motion. See 28 U.S.C. § 636(b)(1)(B). Only a district court judge can issue a dispositive order. Id. After being served with a copy of a magistrate judge’s recommended disposition, a party has ten days within which to file objections with the district court. See 28 U.S.C. § 636(b)(1)(C). A district court judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. Where a party is “informed by the magistrate that objections must be filed within ten days” and no objections are filed, further appeal is generally waived. United States v. Walters, 638 F.2d 947, 950 (6th Cir.1981). But where a party files objections after ten days, a district court can still consider them. See, e.g., Patterson v. Mintzes, 717 F.2d 284, 286 (6th Cir.1983). Only in cases where parties consent to a magistrate judge’s exercise of plenary jurisdiction, may the magistrate judge issue effective rulings on all matters, including dispositive motions. See 28 U.S.C. § 636(c)(1). But no" }, { "docid": "22946758", "title": "", "text": "Modena, 302 F.3d 626, 630 (6th Cir.2002) (citing § 636(b)(1)(A) and stating that “[a] magistrate judge is authorized by statute to determine whether a criminal defendant has effectively waived the right to counsel”); United States v. Brown, 79 F.3d 1499, 1503 (7th Cir.1996) (“Title 28 U.S.C. § 636(b)(1)(A) permits district judges to designate non-Article III magistrate judges for the determination of nondispositive pretrial motions, such as motions for substitute counsel.”). Against all of this precedent, Schultz cites no case that holds that determining whether a defendant may waive his right to counsel and represent himself under the Sixth Amendment and Faretta is beyond the statutory authority given to magistrate judges under 28 U.S.C. § 636. Schultz’s best argument derives from the Supreme Court’s opinions in Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), and Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991). In Gomez the Court decided that conducting jury selection was beyond the authority of a magistrate judge. 490 U.S. at 876, 109 S.Ct. at 2248. Most of the Court’s analysis focused on § 636(b)(3), the residual clause that grants magistrate judges the power to handle “such additional duties as are not inconsistent with the Constitution and laws of the United States.” 28 U.S.C. § 636(b)(3). The Court accepted the argument that allowing an Article I judge to perform the important function of jury selection, traditionally the province of Article III judges, might raise a constitutional question. Accordingly, it chose to read the statute so as not to create that question. Gomez 490 U.S. at 864, 109 S.Ct. at 2241. The Court also rebuffed any argument that jury selection was a pretrial matter that could be handled by a magistrate judge under § 636(b)(1)(A). It found that suggestion meritless because “subparagraph (A) was plainly intended for less important matters than voir dire.” Id. at 874 n. 28, 109 S.Ct. at 2247 n. 28. Two years later, in Peretz, the Court limited Gomez by holding that if a defendant expressly consented, the constitutional issue would disappear and a" }, { "docid": "305894", "title": "", "text": "September 1991 (the “1991 Oral Argument”), Miller’s counsel Aron M. Schwartz (“Schwartz”) stated, At the time that [Miller] was applying for the job, she was 50 years old or a couple years beyond that and she was genuinely afraid that given her age, given the facts [sic.] that she went to law school later in life, that she would not get a job if she were honest about her age. That’s the way she felt and that’s what she did. 1991 Oral Argument at 6, lines 12-17. Discussion A. Standard of Review of Decision by Magistrate Judge Pursuant to 28 U.S.C. § 636(b)(1), Rule 72 of the Federal Rules of Civil Procedure and Rule 40(A) of the General Rules for the District of New Jersey, a United States Magistrate Judge may hear “dispositive” and “nondispositive” motions assigned by the district court. With regard to nondispositive motions, “the district court may modify the magistrate [judge’s] order only if the district court finds that the magistrate [judge’s] ruling was clearly erroneous or contrary to law.” Gomez v. United States, 490 U.S. 858, 868, 109 S.Ct. 2237, 2244, 104 L.Ed.2d 923 (1989), Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir.1992); see also 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). Upon review by a district court of a nondispositive matter, the magistrate judge is accorded wide discretion. National Labor Relations Board v. Frazier, 966 F.2d 812, 815 (3d Cir.1992); Hanntz v. Shiley, Inc. Div. of Pfizer, Inc., 766 F.Supp. 258, 262 (D.N.J.1991); Republic of Philippines v. Westinghouse Electric Corp., 132 F.R.D. 384, 387 (D.N.J.1990); Dome Petroleum Ltd. v. Employers Muiual Liability Ins. Co., 131 F.R.D. 63, 65 (D.N.J.1990); Schroeder v. Boeing Commercial Airplane Co., Div. of Boeing Corp., 123 F.R.D. 166, 169 (D.N.J.1988); Environmental Tectonics Corp., International v. W.S. Kirkpatrick & Co., 659 F.Supp. 1381, 1391 (D.N.J.1987), aff'd in part and rev’d in part, 847 F.2d 1052 (3d Cir.1988). With respect to dispositive motions, the district court must make a de novo determination of those portions of the magistrate judge’s report to which a litigant has filed an objection. Gomez, 490 U.S." }, { "docid": "16438516", "title": "", "text": "sanctions are characterized as dispositive or non-dispositive of a claim or defense of a party. Id. at 747. Looking to the text of the Act, we noted: [Sjection 636(b)(1)(A) lists those motions which may not be determined by a magistrate. Accordingly, any motion not listed, nor analogous to a motion listed in this category, falls within the non- dispositive group of matters which a magistrate may determine. Id. at 747-48 (emphasis added). Thus, in contrast to the district court’s conclusion, Maisonville suggests that the list of excepted pretrial matters can be expanded to include other, analogous motions as well. Two other circuits have explicitly adopted this interpretation of § 636(b)(1)(A). See Massey v. City of Fernmdale, 7 F.3d 506, 508. (6th Cir.1993) (“Courts have construed this list of exceptions, which involve dispositive matters, to be nonexhaustiye.”) (alteration and internal quotation marks omitted); Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir.1988) (“[M]otions not designated on their face as one of those excepted in subsection (A) aré nevertheless to be treated as such a motion when they have an identical effect.”). The Supreme Court has also indicated that the listed exceptions from § 636(b)(1)(A) are not exclusive. In Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the Court considered whether the Act authorized magistrate judges to conduct jury selection. The Court reasoned: [Congress] did not identify the selection of a jury as either a “dispositive” matter covered by § 636(b)(1)(B) or a “nondis-positive” pretrial matter governed by § 636(b)(1)(A). To the limited extent that it fits into either category, we believe jury selection is more akin to those precisely defined, “dispositive” matters for which subparagraph (B) meticulously sets forth a de novo review procedure. Id. at 873-74, 109 S.Ct. 2237. Thus, even though the statute does not list jury selection as one of the exceptions from sub-paragraph (A), the Court rejected the possibility that Congress intended it to be considered one of the pretrial matters that can be delegated to the final authority of a magistrate judge. The foregoing discussion demonstrates that" } ]

[ { "docid": "23680171", "title": "", "text": "indicates that the Birmingham Trust decision is not in complete accord with the 1984 amendments to the Code and that the phrase “to the extent obtained by” is limiting language. 3 Collier on Bankruptcy, para. 523.08 (1986). It may be conceded that the statutory language is ambiguous and, though seemingly simple, difficult to apply to the actual case. In a recent opinion by Bankruptcy Judge Ginsberg, Matter of Suter, 59 B.R. 944 (Bankr.N.D.Ill.1986), it was held that the effect of the emphasized language of the statute quoted above was to preclude finding punitive damages such as were awarded by the state court against the Debtor here to be non-dischargeable. It must be said that the punitive damages award of $50,000.00 against the Debtor cannot be considered to be within the language of Section 523(a)(2)(A). In re Brown, 66 B.R. 13, 16 (Bankr.D.Utah 1986). The same reasoning applies to the award of damages for emotional distress since this does not represent “money, property, or services, or ... credit ... obtained by ... actual fraud”. Thus, an additional $5,000.00 must be eliminated from the non-dischargeable debt determined today. See In re Romero, 535 F.2d 618 (10th Cir.1976). Likewise, the award of multiple damages under the Texas Deceptive Trade Practices Act cannot be included. Each of these components of the damages awarded under the state court judgment represents damages for something other than actual pecuniary loss suffered by the Plaintiffs. After having given careful consideration to the import of the statutory language, this court is of the view that the phrase “to the extent obtained by” requires that an actual pecuniary loss to the creditor result from the fraudulent conduct of the debtor that gave rise to the debt. This excludes from the nondischargeable debt under Section 523(a)(2)(A) those portions of the judgment debt that are in the nature of a penalty having no relation to the actual pecuniary loss resulting from the debtor’s fraud. In certain instances the same reasoning would apply to an award of attorney’s fees. Many bankruptcy courts have declined to find attorney’s fees awarded in judgments to be" } ]

[ { "docid": "18786079", "title": "", "text": "controlling in this adversary proceeding. The eases are split on the question of whether treble damages are nondisehargeable under § 523(a)(2)(A). Based upon the particular wording of § 523(a)(2)(A), a majority of the eases have concluded that treble damages are not nondischargeable under § 523(a)(2)(A). See, e.g., In re Levy, 951 F.2d 196 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992); In re Wien, 155 B.R. 479 (Bankr.N.D.Ill.1993); In re Day, 137 B.R. 335 (Bankr.W.D.Mo.1992); In re Freeman, 142 B.R. 758 (Bankr.E.D.Va.1991); In re Church, 69 B.R. 425 (Bankr.N.D.Tx.1987); and In re Suter, 59 B.R. 944 (Bankr.N.D.Ill.1986). As these cases point out, § 523(a)(2)(A) excepts from discharge “any debt ... for money ... to the extent obtained by..... false pretenses, a false representation,, or actual fraud-” (Emphasis supplied). The majority and better reasoned rule is that this language excepts from discharge only the actual value of the money or property received by a debtor by virtue of false pretenses, a false representation or fraud. Under this interpretation of § 523(a)(2)(A), only the actual loss or damage sustained by the creditor is nondischargeable. See, In re Freeman, supra at 761: “Section 523(a)(2) is designed to recover what was actually lost from the creditor, not what the creditor expected to receive under the contract. Thus, even where a state court fraud judgment is afforded collateral estoppel effect, bankruptcy courts typically limit the § 523(a)(2) exception from discharge to compensatory damages and declare state court punitive damage awards dischargeable.” In accord, In re Wilson, 72 B.R. 956 (Bankr.M.D.Fla.1987) (only money actually obtained by fraud is nondischargeable); Muleshoe State Bank v. Black, 77 B.R. 91 (Bankr.N.D.Tex.1987) (under § 523(a)(2)(A) only the amount actually obtained by false pretenses is nondischargeable). Since punitive damages and treble damages are punitive in nature, they do not change or increase the extent of the actual value of the money or property which was obtained by the debtor or lost by the creditor. This interpretation of § 523(a)(2)(A) was articulated as follows in In re Suter, 59 B.R. 944 (Bankr.N.D.Ill.1986): “However, § 523(a)(2)(A) precludes" }, { "docid": "18786080", "title": "", "text": "523(a)(2)(A), only the actual loss or damage sustained by the creditor is nondischargeable. See, In re Freeman, supra at 761: “Section 523(a)(2) is designed to recover what was actually lost from the creditor, not what the creditor expected to receive under the contract. Thus, even where a state court fraud judgment is afforded collateral estoppel effect, bankruptcy courts typically limit the § 523(a)(2) exception from discharge to compensatory damages and declare state court punitive damage awards dischargeable.” In accord, In re Wilson, 72 B.R. 956 (Bankr.M.D.Fla.1987) (only money actually obtained by fraud is nondischargeable); Muleshoe State Bank v. Black, 77 B.R. 91 (Bankr.N.D.Tex.1987) (under § 523(a)(2)(A) only the amount actually obtained by false pretenses is nondischargeable). Since punitive damages and treble damages are punitive in nature, they do not change or increase the extent of the actual value of the money or property which was obtained by the debtor or lost by the creditor. This interpretation of § 523(a)(2)(A) was articulated as follows in In re Suter, 59 B.R. 944 (Bankr.N.D.Ill.1986): “However, § 523(a)(2)(A) precludes the dischargeability of a debt for money only to the extent the money was obtained by actual fraud. In this ease, the debtor defrauded McCullough in the amount of $14,-045.51. Because of the debtors fraud, McCullough had to expend $7,141.14 in attorneys’ fees in an attempt to recover his actual damages. The treble damages awarded by the District Court under RICO are punitive in nature and in no way alter the extent of the damages for money obtained by actual fraud. The trebling of McCullough’s damages did not increase the amount of money which the debtor obtained from McCullough by actual fraud. That amount was and continues to be $14,-045.51. It is possible to argue that the attorneys’ fees incurred by [McCullough] in obtaining the prebankruptcy judgment also represent a debt for money obtained by the debtors actual fraud, although that analysis is admittedly strained at best. Thus, arguably $21,186.65 plus interest at the legal rate is the amount of the debt for money to the extent obtained by the debt- or’s actual fraud. It" }, { "docid": "23601042", "title": "", "text": "59 B.R. 944 (Bankr.N.D.Ill.1986), it was held that the effect of the emphasized language of the statute quoted above was to preclude finding punitive damages such as were awarded by the state court against the Debtor here to be nondischargeable. It must be said that the punitive damages award of $50,-000.00 against the Debtor cannot be considered to be within the language of Section 523(a)(2)(A). In re Brown, 66 B.R. 13, 16 (Bankr.D. Utah 1986). The same reasoning applies to the award of damages for emotional distress since this does not represent “money, property, or services, or ... credit ... obtained by ... actual fraud”. Thus, an additional $5,000.00 must be eliminated from the nondischargeable debt determined today. See In re Romero, 535 F.2d 618 (10th Cir.1976). Likewise, the award of multiple damages under the Texas Deceptive Trade Practices Act cannot be included. Each of these components of the damages awarded under the state court judgment represents damages for something other than actual pecuniary loss suffered by the Plaintiffs. After having given careful consideration to the import of the statutory language, this court is of the view that the phrase “to the extent obtained by” requires that an actual pecuniary loss to the creditor result from the fraudulent conduct of the debtor that gave rise to the debt. This excludes from the nondis-chargeable debt under Section 523(a)(2)(A) those portions of the judgment debt that are in the nature of a penalty having no relation to the actual pecuniary loss resulting from the debt- or’s fraud. Id. at 434-435. In Matter of Suter, prior to the debtor’s bankruptcy, the District Court had entered a judgment versus the debtor on the merits based on four counts, one count was based on RICO (18 U.S.C. § 1962(c)), and one count was for fraud as set forth in § 523(a)(2). The District Court trebled the civil damages pursuant to 18 U.S.C. § 1964(c). The bankruptcy court held the trebled damages dischargeable and stated as follows: Section 523(a)(2)(A) excepts from discharge “any debt ... for money ...to the extent obtained by ... actual fraud.” (emphasis" }, { "docid": "5513501", "title": "", "text": "(Bankr.N.D.Ala.1984), gave collateral estoppel effect to a prior state court judgment, but held that the punitive damages awarded therein were dischargeable. The court noted as follows: This Court cannot, in equitable good conscience, punish the innocent unsecured creditors by virtue of a substantial depletion of the estate for a wrong committed by the debtor. As noted in In re Ryan, 15 B.R. 514, 520 (Bkrtcy.Md.1981), “[t]he intent of Congress was that unsecured creditors should be protected from ‘the debtor’s wrongdoing.’ ” (Citing H.R.Rep. No. 950595, 1st Sess. 382 (1977), U.S. Code Cong. & Admin.News 1978 p. 5787). The maximum actual pecuniary loss suffered by the plaintiff as a result of the false pretenses is the amount paid for the automobile— $900.00. Even if the car sold by the defendant had been absolutely worthless, the plaintiff would be adequately compensated by a damage award of $900.00. Before the Bankruptcy Code went into effect, there was a great deal of confusion and conflicting judicial interpretations of the dischargeability of punitive damages assessed against the debtor in prior proceedings. See Beard, supra, [5 B.C.D. 680] at 682, 683; [ (Bkrtcy.M.D.Tenn.1979) ] contra, U.S. v. RePass, 688 F.2d 154, 157 (2d Cir.1982). Such uncertainty was principally due to the “provable debt” concept contained in Section 17 and Section 63 of the Bankruptcy Act. However, the Bankruptcy Code no longer refers to the provable and non-provable distinctions. The “provability” of a debt no longer has any bearing on whether or not the debt is dischargeable. See 3 Collier on Bankruptcy, Section 523.02 (15th ed.1983). Thus, based on the maximum amount of actual loss suffered by the plaintiff and in the interest of fairness to the unsecured creditors, the Court concludes that the plaintiff is entitled to a judgment in the amount of $900.00, and said amount is to be nondischargeable pursuant to 11 U.S.C. Section 523(a)(2)(A). The balance of the state court jury award is due to be allowed as an unsecured claim, and is therefore dischargeable. Id. 44 B.R. at 8-9. See also, Matter of Larson, 79 B.R. 462 (Bankr.W.D.Mo.1987); In Matter of Church," }, { "docid": "23601046", "title": "", "text": "result can be gleaned from interpreting the plain language of those sections. Finally it must be remembered that § 523(a)(2)(A) is a provision conflicting with the fresh start philosophy of the Bankruptcy Code. Therefore, it should be read no more broadly than required to implement the policy underlying § 523(a)(2)(A), i.e. the policy against debtors avoiding fraud-based debts in bankruptcy. See In re Prestridge, 45 B.R. 681, 684 (Bankr.W.D.Tenn.1985); In re Lipscomb, 41 B.R. 112, 116 (Bankr.E.D.Va.1984). If McCullough collects $14,-045.51 plus interest and attorneys’ fees from the debtor, he will be made whole. If he collects $56,935.62, he will, in effect, receive a windfall in the amount of $35,748.97. The Bankruptcy Code intends the former result. It does not intend the latter. Section 523(a)(7) recognizes that debtors are to be punished by governmental units in (and after) bankruptcy cases, not by creditors. The motion to reconsider is denied. Id. at pp. 946-47. Are punitive damages awarded in a prior judgment which could have collateral estop-pel effect to a private party in the nature of a fine or in the nature of punitive damages? It is clear that a fine, penalty or forfeiture payable to or for the benefit of a governmental unit is not dischargeable under § 523(a)(7). However, the judgment in question clearly provides that the punitive damages are awarded to the plaintiffs rather than to or for the benefit of a governmental unit. Matter of Suter, 59 B.R. 944 supra. They are not in the nature of a fine, penalty or forfeiture payable to or for the benefit of a governmental unit, and are thus not nondischargeable on that basis. Since they are treated as civil punitive damages payable to the plaintiff, are they non-dischargeable in a dischargeability proceeding under § 523(a)(2), (4) or (6)? It has been held that statutorily authorized punitive damage awards are nondischargeable. In re Maxwell, 51 B.R. 244 (Bankr.S.D.Ind.1983). See also, In re Adams, supra. In Maxwell, the award of punitive damages by the state court in a summary judgment was held to be nondischargeable, since they were awarded pursuant to state" }, { "docid": "5513506", "title": "", "text": "Bankruptcy, para. 523.08 (1986). It may be conceded that the statutory language is ambiguous and, though seemingly simple, difficult to apply to the actual case. In a recent opinion by Bankruptcy Judge Ginsberg, Matter of Suter, 59 B.R. 944 (Bankr.N.D.Ill.1986), it was held that the effect of the emphasized language of the statute quoted above was to preclude finding punitive damages such as were awarded by the state court against the Debtor here to be non-dischargeable. It must be said that the punitive damages award of $50,-000.00 against the Debtor cannot be considered to be within the language of Section 523(a)(2)(A). In re Brown, 66 B.R. 13, 16 (Bankr.D.Utah 1986). The same reasoning applies to the award of damages for emotional distress since this does not represent “money, property, or services, or ... credit ... obtained by ... actual fraud”. Thus, an additional $5,000.00 must be eliminated from the nondischargeable debt determined today. See In re Romero, 535 F.2d 618 (10th Cir.1976). Likewise, the award of multiple damages under the Texas Deceptive Trade Practices Act cannot be included. Each of these components of the damages awarded under the state court judgment represents damages for something other than actual pecuniary loss suffered by the Plaintiffs. After having given careful consideration to the import of the statutory language, this court is of the view that the phrase “to the extent obtained by” requires that an actual pecuniary loss to the creditor result from the fraudulent conduct of the debtor that gave rise to the debt. This excludes from the nondis-chargeable debt under Section 523(a)(2)(A) those portions of the judgment debt that are in the nature of a penalty having no relation to the actual pecuniary loss resulting from the debt- or's fraud. Id. 69 B.R. at 434-435. In Matter of Suter, prior to the debtor’s bankruptcy, the District Court had entered a judgment versus the debtor on the merits based on four counts, one count was based on RICO (18 U.S.C. § 1962(c)), and one count was for fraud as set forth in § 523(a)(2). The District Court trebled the civil damages" }, { "docid": "18493646", "title": "", "text": "punitive damage awards. See also Commercial Factors of Salt Lake City, Inc. v. Jensen (In re Jensen), 113 B.R. 51, 54-55 (Bankr.D.Utah 1990) (Holding the prevailing creditor’s attorney’s fees nondis-chargeable, the court stated that “fees incurred in the enforcement of a contract freely entered into between parties of relatively equal bargaining power [are] part of the debt as defined in section 101(11).”) In addition to the plain language of § 523(a)(6), § 726(A)(4) indicates that Congress considers punitive damages to be debts under the Code. That section, which deals with the distribution of property of a Chapter 7 estate, provides for fourth priority to: payment of any allowed claim, whether secured or unsecured, for any fine, penalty, or forfeiture, or for multiple, exemplary, or punitive damages, arising before the earlier of the order for relief or the appointment of a trustee, to the extent that such fine, penalty, forfeiture, or damages are not compensation for actual pecuniary loss suffered by the holder of such claim.... (Emphasis added.) The court also points out that the Supreme Court and the Tenth Circuit have indicated that, if confronted with the issue, they would conclude that punitive damage judgments may be held to be nondischargeable under § 523. In Grogan v. Garner, — U.S. -, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991), the Court was faced with the issue of the proper burden of proof to be applied in action brought pursuant to § 523. The bankruptcy court held that, under principles of collateral estoppel, a state court judgment, which included an award of actual and punitive damages, was nondischargeable under § 523(a)(2)(A). The district court affirmed the bankruptcy court. The Eighth Circuit reversed the lower court on the basis that collateral estoppel was inapplicable because the state court judgment required that fraud be proved by a preponderance of the evidence, whereas 523(a) required proof by clear and convincing evidence. In reversing the Eighth Circuit and applying a preponderance standard, the Supreme Court noted that because the debtor did not challenge the conclusion that the elements of the claim proved in state court were" }, { "docid": "5513502", "title": "", "text": "proceedings. See Beard, supra, [5 B.C.D. 680] at 682, 683; [ (Bkrtcy.M.D.Tenn.1979) ] contra, U.S. v. RePass, 688 F.2d 154, 157 (2d Cir.1982). Such uncertainty was principally due to the “provable debt” concept contained in Section 17 and Section 63 of the Bankruptcy Act. However, the Bankruptcy Code no longer refers to the provable and non-provable distinctions. The “provability” of a debt no longer has any bearing on whether or not the debt is dischargeable. See 3 Collier on Bankruptcy, Section 523.02 (15th ed.1983). Thus, based on the maximum amount of actual loss suffered by the plaintiff and in the interest of fairness to the unsecured creditors, the Court concludes that the plaintiff is entitled to a judgment in the amount of $900.00, and said amount is to be nondischargeable pursuant to 11 U.S.C. Section 523(a)(2)(A). The balance of the state court jury award is due to be allowed as an unsecured claim, and is therefore dischargeable. Id. 44 B.R. at 8-9. See also, Matter of Larson, 79 B.R. 462 (Bankr.W.D.Mo.1987); In Matter of Church, 69 B.R. 425 (Bankr.N.D.Tex.1987); In re Brown, 66 B.R. 13, 16 (Bankr.D.Utah 1986); In the Matter of Suter, 59 B.R. 944 (Bankr.N.D.Utah.1986); and In re Beard, 5 B.C.D. 680 (Bankr.M.D.Tenn.1979) (an Act case holding that punitive damages were a penalty and not provable), where the Courts specifically held that punitive damages are not nondischargeable in bankruptcy- ' In Church, the court gave collateral es-toppel effect to a state court jury verdict, in which multiple damages were awarded to the creditor under a state deceptive practice act in addition to actual pecuniary loss. The state court also entered judgment for punitive fees and attorney’s fees. The bankruptcy court noted that Texas law did not permit attorney’s fees to be awarded as actual damages in a suit for fraud, but that there was two potentially independent grounds for the award of attorney’s fees— case law permitting attorney’s fees when punitive damages are awarded, and the Texas Deceptive Trade Practices Act. The court held that the attorney’s fees awarded based on the fact the judgment also awarded punitive" }, { "docid": "1101297", "title": "", "text": "followed in National Homes Corporation v. Lester Industries, Inc., 336 F.Supp. 644 (W.D.Va.1972), In re Webster, 1 B.R. 61 (B.C., E.D.Va.1979), and In re Willis, 2 B.R. 566 (B.C., M.D.Ga.1980); was apparently assumed without discussion in In re Franklin, 726 F.2d 606 (10th Cir.1984); and was also adopted by bankruptcy courts-making their own punitive damage awards in nondischargeability actions, In re Cummings, 3 B.C.D. 908 (B.C., W.D.Mo.1977), In re Berberian, 34 B.R. 580 (B.C., D.R.I.1983). All of the cases just cited dealt with Act § 17(a)(2), (8), which spoke of “liabilities for ...” obtaining money, property or credit on false pretenses or wilful and malicious injury to person or property. This Court knows of no case dealing with punitive damages under Act § 17(a)(4), which spoke of “liabilities ... created by ... fraud, embezzlement, misappropriation or defalcation while acting ... in any fiduciary capacity.” It might be argued that the words “created by” indicate actual damages only. If so, then punitive damages imposed for “arms-length” fraud would be nondis-chargeable under Act § 17(a)(2), while punitive damages imposed for fraud in a fiduciary capacity would be dischargeable under Act § 17(a)(4). It is difficult to imagine why Congress would have wanted “arms-length” frauds under § 17(a)(2) treated more severely than frauds in a fiduciary capacity under § 17(a)(4). It is more likely that, if punitive damages could be nondis-chargeable under § 17(a)(2), (8), they could likewise be nondischargeable under § 17(a)(4); and the distinction between “liabilities for” and “liabilities ... created by” should be treated as a distinction without a difference. The Bankruptcy Code of 1978 (“the Code”) abandoned “provability.” All claims which were valid, enforceable, and reducible to money judgment were allowed; and all allowable claims could be discharged, with exceptions set forth in Act § 17’s successor, 11 U.S.C. § 523. 11 U.S.C. §§ 101(5), (12), 501, 502(a), (b), 523(a), 524(a), 727(b), 944(b), 1141(d), 1228, 1328; and see 2 Collier on Bankruptcy (15th ed. 1991) ¶¶ 101.05, 101.12, 3 Collier on Bankruptcy (15th ed. 1991) ¶¶ 502.-01[1], 502.02, 523.02, 523.03, 523.04. The new Code’s § 523 provides in pertinent" }, { "docid": "5513500", "title": "", "text": "trebled cannot be excepted from discharge in its entirety because N.C.Gen. Stat. § 75-16 is an attempt by the North Carolina legislature to punish persons who engage in unfair and deceptive acts and practices affecting commerce. This exercise of police power by the North Carolina legislature is contrary to the purpose of bankruptcy and fraud exception to discharge and cannot be enforced under these circumstances. See Birmingham, Nat. Bank v. Case, 755 F.2d 1474, 1477 (11th Cir.1985) (Footnote omitted). Id. 72 B.R. at 960. The Court in In re Record Co., Inc., 8 B.R. 57 (Bankr.S.D.Ind.1980), dismissed a § 523(a)(2) counter complaint for $100,-000.00 in punitive damages (there being no prior state court judgment), and without further discussion or citation of any authority, stated as follows: It is a well-established principle of bankruptcy that damages granted on nondischargeability complaints for obtaining money by false pretenses are limited to funds actually obtained by the representation. Consequential damages are not included, nor are punitive damages. Id. at 60. The Court in Matter of Cheatham, 44 B.R. 4 (Bankr.N.D.Ala.1984), gave collateral estoppel effect to a prior state court judgment, but held that the punitive damages awarded therein were dischargeable. The court noted as follows: This Court cannot, in equitable good conscience, punish the innocent unsecured creditors by virtue of a substantial depletion of the estate for a wrong committed by the debtor. As noted in In re Ryan, 15 B.R. 514, 520 (Bkrtcy.Md.1981), “[t]he intent of Congress was that unsecured creditors should be protected from ‘the debtor’s wrongdoing.’ ” (Citing H.R.Rep. No. 950595, 1st Sess. 382 (1977), U.S. Code Cong. & Admin.News 1978 p. 5787). The maximum actual pecuniary loss suffered by the plaintiff as a result of the false pretenses is the amount paid for the automobile— $900.00. Even if the car sold by the defendant had been absolutely worthless, the plaintiff would be adequately compensated by a damage award of $900.00. Before the Bankruptcy Code went into effect, there was a great deal of confusion and conflicting judicial interpretations of the dischargeability of punitive damages assessed against the debtor in prior" }, { "docid": "5513505", "title": "", "text": "v. Case, 755 F.2d 1474 (11th Cir.1985) in support of this proposition. In that opinion the Court of Appeals held that, when a debt is declared non-dischargeable on the basis of a false representation in a financial statement, the entire debt is non-dischargea-ble, and there is no off-set, so to speak, for the value of property returnable to the creditor even though it may be the same property so obtained. Moreover, it has been held that a bankruptcy court may not find certain portions of a debt to be nondischargeable and certain portions discharged. In re Stahl, 59 B.R. 2 (Bankr.W.D.La.1986). It is noteworthy that in Birmingham Trust the statutory language quoted by the Eleventh Circuit omitted the phrase “to the extent obtained by”. Unfortunately, the guidance of legislative history is lacking as to this statutory riddle. The leading treatise on bankruptcy indicates that the Birmingham Trust decision is not in complete accord with the 1984 Amendments to the Code and that the phrase “to the extent obtained by” is limiting language. 3 Collier on Bankruptcy, para. 523.08 (1986). It may be conceded that the statutory language is ambiguous and, though seemingly simple, difficult to apply to the actual case. In a recent opinion by Bankruptcy Judge Ginsberg, Matter of Suter, 59 B.R. 944 (Bankr.N.D.Ill.1986), it was held that the effect of the emphasized language of the statute quoted above was to preclude finding punitive damages such as were awarded by the state court against the Debtor here to be non-dischargeable. It must be said that the punitive damages award of $50,-000.00 against the Debtor cannot be considered to be within the language of Section 523(a)(2)(A). In re Brown, 66 B.R. 13, 16 (Bankr.D.Utah 1986). The same reasoning applies to the award of damages for emotional distress since this does not represent “money, property, or services, or ... credit ... obtained by ... actual fraud”. Thus, an additional $5,000.00 must be eliminated from the nondischargeable debt determined today. See In re Romero, 535 F.2d 618 (10th Cir.1976). Likewise, the award of multiple damages under the Texas Deceptive Trade Practices Act" }, { "docid": "7995036", "title": "", "text": "innocent unsecured creditors by virtue of a substantial depletion of the estate for a wrong committed by the debtor. As noted in In re Ryan, 15 B.R. 514, 520 (Bkrtcy.Md.1981), “(t)he intent of Congress was that unsecured creditors should be protected from ‘the debtor’s wrongdoing.’ ” (citing H.R.Rep. No. 95-595, 1st Sess. 382 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787). The maximum actual pecuniary loss suffered by the plaintiff as a result of the false pretenses is the amount paid for the automobile — $900.00. Even if the car sold by the defendant had been absolutely worthless, the plaintiff would be adequately compensated by a damage award of $900.00. Before the Bankruptcy Code went into ef- feet, there was a great deal of confusion and conflicting judicial interpretations of the dischargeability of punitive damages assessed against the debtor in prior proceedings. See Beard, supra, at 682, 683; contra, U.S. v. RePass, 688 F.2d 154, 157 (2d Cir.1982). Such uncertainty was principally due to the “provable debt” concept contained in Section 17 and Section 63 of the Bankruptcy Act. However, the Bankruptcy Code no longer refers to the provable and non-provable distinctions. The “provability” of a debt no longer has any bearing on whether or not the debt is dis-chargeable. See 3 Collier on Bankruptcy, Section 523.02 (15th ed. 1983). Thus, based on the maximum amount of actual loss suffered by the plaintiff and in the interest of fairness to the unsecured creditors, the Court concludes that the plaintiff is entitled to judgment in the amount of $900.00, and said amount is to be nondischargeable pursuant to 11 U.S.C. Section 523(a)(2)(A). The balance of the state court jury award is due to be allowed as an unsecured claim, and is therefore dischargeable. An appropriate Order in accordance with this opinion will be entered." }, { "docid": "5513503", "title": "", "text": "69 B.R. 425 (Bankr.N.D.Tex.1987); In re Brown, 66 B.R. 13, 16 (Bankr.D.Utah 1986); In the Matter of Suter, 59 B.R. 944 (Bankr.N.D.Utah.1986); and In re Beard, 5 B.C.D. 680 (Bankr.M.D.Tenn.1979) (an Act case holding that punitive damages were a penalty and not provable), where the Courts specifically held that punitive damages are not nondischargeable in bankruptcy- ' In Church, the court gave collateral es-toppel effect to a state court jury verdict, in which multiple damages were awarded to the creditor under a state deceptive practice act in addition to actual pecuniary loss. The state court also entered judgment for punitive fees and attorney’s fees. The bankruptcy court noted that Texas law did not permit attorney’s fees to be awarded as actual damages in a suit for fraud, but that there was two potentially independent grounds for the award of attorney’s fees— case law permitting attorney’s fees when punitive damages are awarded, and the Texas Deceptive Trade Practices Act. The court held that the attorney’s fees awarded based on the fact the judgment also awarded punitive damages could not be held non-dischargeable, but that the attorney’s fees could be nondischargeable based on the statute. The court cited In re Suter, 59 B.R. 944 supra, with approval as well as In re Brown, 66 B.R. 13, 16 (Bankr.D.Utah 1986). In In re Church, the court stated as follows: The Debtor was also adjudged separately liable for an additional $25,000.00 punitive damages; duplicating the punitive damages awarded against Contemporary Homes and making the total judgment against the. Debtor $112,672.34. Since the court has determined that summary judgment is appropriate as to the Section 523(a)(2)(A) claim of the Plaintiffs, it follows that the debt attributable to the “actual fraud” of the debt- or should similarly be accorded summary treatment. The difficulty arises from the conflicting case law and the ambiguity of the statute. Section 523(a)(2) excepts from discharge any debt “for money, ... to the extent obtained by— (A) ... actual fraud,_” (Emphasis supplied). The Plaintiffs argue that the entire judgment debt must be found to be non-dischargeable. They cite Birmingham Trust National Bank" }, { "docid": "23601041", "title": "", "text": "financial statement, the entire debt is non-dischargea-ble and there is no off-set, so to speak, for the value of property returnable to the creditor even though it may be the same property so obtained. Moreover, it has been held that a bankruptcy court may not find certain portions of a debt to be non-dischargeable and certain portions discharged. In re McCall, 59 B.R. 3 (Bankr.W.D.La.1986). It is noteworthy that in Birmingham Trust the statutory language quoted by the Eleventh Circuit omitted the phrase “to the extent obtained by”. Unfortunately, the guidance of legislative history is lacking as to this statutory riddle. The leading treatise on bankruptcy indicates that the Birmingham Trust decision is not in complete accord with the 1984 amendments to the Code and that the phrase “to the extent obtained by” is limiting language. 3 Collier on Bankruptcy, para. 523.08 (1986). It may be conceded that the statutory language is ambiguous and, though seemingly simple, difficult to apply to the actual case. In a recent opinion by Bankruptcy Judge Ginsberg, Matter of Suter, 59 B.R. 944 (Bankr.N.D.Ill.1986), it was held that the effect of the emphasized language of the statute quoted above was to preclude finding punitive damages such as were awarded by the state court against the Debtor here to be nondischargeable. It must be said that the punitive damages award of $50,-000.00 against the Debtor cannot be considered to be within the language of Section 523(a)(2)(A). In re Brown, 66 B.R. 13, 16 (Bankr.D. Utah 1986). The same reasoning applies to the award of damages for emotional distress since this does not represent “money, property, or services, or ... credit ... obtained by ... actual fraud”. Thus, an additional $5,000.00 must be eliminated from the nondischargeable debt determined today. See In re Romero, 535 F.2d 618 (10th Cir.1976). Likewise, the award of multiple damages under the Texas Deceptive Trade Practices Act cannot be included. Each of these components of the damages awarded under the state court judgment represents damages for something other than actual pecuniary loss suffered by the Plaintiffs. After having given careful consideration to" }, { "docid": "1101317", "title": "", "text": "Suter, 59 B.R. 944, 947 (B.C., N.D.Ill.1986). This negative inference is unwarranted. First, the Code elsewhere treats “fine, penalty or forfeiture” as something different from “exemplary or punitive damages,” see e.g. 11 U.S.C. § 726(a)(4). If the Code’s terminology is consistent, § 523(a)(7) does not deal with punitive damages at all. Second, § 523(a)(7) appears to be intended merely as the Code successor to Act § 57(j). Act § 57(j) provided that Debts owing to the United States or any State or subdivision thereof as a penalty or forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction or proceeding out of which the penalty or forfeiture arose ... This was held to make such non-allowable debts also non-provable and therefore non-dischargeable, 1A Collier on Bankruptcy (14th ed. 1978) ¶ 17.05 p. 1587, 3 Collier on Bankruptcy (14th ed. 1977) ¶ 57.22, 3A Collier on Bankruptcy (14th ed. 1975) II 63.12. The Code did away with “provability” and permitted allowance of governmental claims. This would have rendered all such governmental claims automatically dischargeable, unless a specific exception to discharge were provided. § 523(a)(7) provides that exception. It sees to it that the same result which obtained under the Act continues to obtain under the Code— i.e., -that “fines, penalties or forfeitures” owed to governmental units remain nondis-chargeable, despite changes in the law regarding “allowability” and “provability” of such claims. Like Act § 57(j), Code § 523(a)(7) has nothing at all to do with non-governmental plaintiffs or with punitive damages owed to any litigant (governmental unit or otherwise) in ordinary civil litigation. For purposes of dischargeability of punitive damages under § 523(a)(2), (4) or (6), § 523(a)(7) is a red herring. Accord, In re Dahlstrom, 129 B.R. p. 246 and n. 7; In re Levy, supra; In re Britton, 950 F.2d 602 (9th Cir., 1991). In sum, punitive damages were excepted from discharge under the former Bankruptcy Act, as indicated by both statutory language and caselaw; there is no indication of Congressional intent to change this rule, in either the language or legislative" }, { "docid": "23601039", "title": "", "text": "state court judgment are not nondischargeable in bankruptcy where a prior state court judgment was given collateral estoppel effect. In Church, the court gave collateral es-toppel effect to a state court jury verdict, in which multiple damages were awarded to the creditor under a state deceptive prac tice act in addition to actual pecuniary loss. The state court also entered judgment for punitive fees and attorney’s fees. The bankruptcy court noted that Texas law did not permit attorney’s fees to be awarded as actual damages in a suit for fraud but that there were two potentially independent grounds for the award of attorney’s fees— case law permitting attorney’s fees when punitive damages are awarded and the Texas Deceptive Trade Practices Act. ■ The court held that the attorney’s fees awarded based on the fact the judgment also awarded punitive damages could not be held non-dischargeable, but that the attorney’s fees could be nondischargeable based on the statute. The court cited In re Suter, 59 B.R. 944 supra, with approval as well as In re Brown, 66 B.R. 13, 16 (Bankr.D.Utah 1986). In In re Church, the court stated as follows: The Debtor was also adjudged separately liable for an additional $25,000.00 punitive damages; duplicating the punitive damages awarded against Contemporary Homes and making the total judgment against the Debtor $112,672.34. Since the court has determined that summary judgment is appropriate as to the Section 523(a)(2)(A) claim of the Plaintiffs, it follows that the debt attributable to the “actual fraud” of the debt- or should similarly be accorded summary treatment. The difficulty arises from the conflicting case law and the ambiguity of the statute. Section 523(a)(2) excepts from discharge any debt “for money, ... to the extent obtained by— (A) ... actual fraud,_” (emphasis supplied). The Plaintiffs argue that the entire judgment debt must be found to be non-dischargeable. They cite Birmingham Trust National Bank v. Case, 755 F.2d 1474 (11th Cir.1985), in support of this proposition. In that opinion the Court of Appeals held that, when a debt is declared non-dischargeable on the basis of a false representation in a" }, { "docid": "7995035", "title": "", "text": "scope than the standard applied by the Court in the previously-discussed analysis of the dis-chargeability issue in the instant case. Thus, the fraud that resulted in this Court’s finding of nondischargeability is more in the nature of common-law tortious fraud rather than any contractual or statutory cause of action. Therefore, the $1,000 award of attorney’s fees is ■ dischargeable. See generally Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), as followed in Beard v. Beard, 5 B.C.D. 680 (Bkrtcy.M.D.Tenn.1979). The remaining issue before the Court concerns the dischargeability of the portion of the state court judgment debt that represents punitive damages assessed by the jury against the defendant. Upon subtracting the award for attorney’s fees and the maximum actual damages of $900.00, the Court finds that the amount of punitive damages awarded by the jury is at least $7,100.00. This amount appears to constitute the “penalty” imposed by the jury on the defendant for his fraudulent conduct. This Court cannot, in equitable good conscience, punish the innocent unsecured creditors by virtue of a substantial depletion of the estate for a wrong committed by the debtor. As noted in In re Ryan, 15 B.R. 514, 520 (Bkrtcy.Md.1981), “(t)he intent of Congress was that unsecured creditors should be protected from ‘the debtor’s wrongdoing.’ ” (citing H.R.Rep. No. 95-595, 1st Sess. 382 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787). The maximum actual pecuniary loss suffered by the plaintiff as a result of the false pretenses is the amount paid for the automobile — $900.00. Even if the car sold by the defendant had been absolutely worthless, the plaintiff would be adequately compensated by a damage award of $900.00. Before the Bankruptcy Code went into ef- feet, there was a great deal of confusion and conflicting judicial interpretations of the dischargeability of punitive damages assessed against the debtor in prior proceedings. See Beard, supra, at 682, 683; contra, U.S. v. RePass, 688 F.2d 154, 157 (2d Cir.1982). Such uncertainty was principally due to the “provable debt” concept contained in Section 17 and Section 63" }, { "docid": "23601037", "title": "", "text": "a wrong committed by the debtor. As noted in In re Ryan, 15 B.R. 514, 520 (Bkrtcy.Md.1981), “[t]he intent of Congress was that unsecured creditors should be protected from ‘the debtor’s wrongdoing.’ ” (citing H.R. Rep. No. 95-595, 1st Sess. 382 (1977), U.S. Code Cong. & Admin.News 1978 p. 5787). The maximum actual pecuniary loss suffered by the plaintiff as a result of the false pretenses is the amount paid for the automobile — $900.00. Even if the car sold by the defendant had been absolutely worthless, the plaintiff would be adequately compensated by a damage award of $900.00. Before the Bankruptcy Code went into effect, there was a great deal of confusion and conflicting judicial interpretations of the dis-chargeability of punitive damages assessed against the debtor in prior proceedings. See [In re] Beard, supra, [5 B.C.D. 680] at 682, 683; contra, U.S. v. RePass, 688 F.2d 154, 157 (2d Cir.1982). Such uncertainty was principally due to the “provable debt” concept contained in Section 17 and Section 63 of the Bankruptcy Act. However, the Bankruptcy Code no longer refers to the provable and non-provable distinctions. The “provability” of a debt no longer has any bearing on whether or not the debt is dischargeable. See 3 Collier on Bankruptcy, Section 523.02 (15th ed. 1983). Thus, based on the maximum amount of actual loss suffered by the plaintiff and in the interest of fairness to the unsecured creditors, the Court concludes that the plaintiff is entitled to judgment in the amount of $900.00 and said amount is to be nondischargeable pursuant to 11 U.S.C. Section 523(a)(2)(A). The balance of the state court jury award is due to be allowed as an unsecured claim and is therefore dischargeable. Id. at pp. 8-9. See also, In Matter of Church, 69 B.R. 425 (Bankr.N.D.Tex.1987), In re Brown, 66 B.R. 13, 16 (Bankr.D.Utah, 1986), In the Matter of Suter, 59 B.R. 944 (Bankr.N.D.Ill.1986), and In re Beard, 5 B.C.D. 680 (Bankr.M.D.Tenn.1979) (an Act case holding that punitive damages were a penalty and not provable), where the Courts specifically held that punitive damages awarded in a prior" }, { "docid": "23601038", "title": "", "text": "Code no longer refers to the provable and non-provable distinctions. The “provability” of a debt no longer has any bearing on whether or not the debt is dischargeable. See 3 Collier on Bankruptcy, Section 523.02 (15th ed. 1983). Thus, based on the maximum amount of actual loss suffered by the plaintiff and in the interest of fairness to the unsecured creditors, the Court concludes that the plaintiff is entitled to judgment in the amount of $900.00 and said amount is to be nondischargeable pursuant to 11 U.S.C. Section 523(a)(2)(A). The balance of the state court jury award is due to be allowed as an unsecured claim and is therefore dischargeable. Id. at pp. 8-9. See also, In Matter of Church, 69 B.R. 425 (Bankr.N.D.Tex.1987), In re Brown, 66 B.R. 13, 16 (Bankr.D.Utah, 1986), In the Matter of Suter, 59 B.R. 944 (Bankr.N.D.Ill.1986), and In re Beard, 5 B.C.D. 680 (Bankr.M.D.Tenn.1979) (an Act case holding that punitive damages were a penalty and not provable), where the Courts specifically held that punitive damages awarded in a prior state court judgment are not nondischargeable in bankruptcy where a prior state court judgment was given collateral estoppel effect. In Church, the court gave collateral es-toppel effect to a state court jury verdict, in which multiple damages were awarded to the creditor under a state deceptive prac tice act in addition to actual pecuniary loss. The state court also entered judgment for punitive fees and attorney’s fees. The bankruptcy court noted that Texas law did not permit attorney’s fees to be awarded as actual damages in a suit for fraud but that there were two potentially independent grounds for the award of attorney’s fees— case law permitting attorney’s fees when punitive damages are awarded and the Texas Deceptive Trade Practices Act. ■ The court held that the attorney’s fees awarded based on the fact the judgment also awarded punitive damages could not be held non-dischargeable, but that the attorney’s fees could be nondischargeable based on the statute. The court cited In re Suter, 59 B.R. 944 supra, with approval as well as In re Brown," }, { "docid": "23601036", "title": "", "text": "legislature is contrary to the purpose of bankruptcy and fraud exception to discharge and cannot be enforced under these circumstances. See, Birmingham Nat. Bank. v. Case, 755 F.2d 1474, 1477 (11th Cir.1985) (Footnote omitted). Id. at 960. The Court in In re Record Co., Inc., 8 B.R. 57 (Bankr.S.D.Ind.1980), dismissing a § 523(a)(2) counter complaint for $100,-000.00 in punitive damages (there being no prior state court judgment), without further discussion or citation of any authority, stated as follows: It is a well-established principle of bankruptcy that damages granted on nondischargeability complaints for obtaining money by false pretenses are limited to funds actually obtained by the representation. Consequential damages are not included, nor are punitive damages. Id. at 60. The Court in Matter of Cheatham, 44 B.R. 4 (Bankr.N.D.Ala.1984), gave collateral estoppel effect to a prior state court judgment, but held that the punitive damages awarded therein were dischargeable. The court noted as follows: This Court cannot, in equitable good conscience, punish the innocent unsecured creditors by virtue of a substantial depletion of the estate for a wrong committed by the debtor. As noted in In re Ryan, 15 B.R. 514, 520 (Bkrtcy.Md.1981), “[t]he intent of Congress was that unsecured creditors should be protected from ‘the debtor’s wrongdoing.’ ” (citing H.R. Rep. No. 95-595, 1st Sess. 382 (1977), U.S. Code Cong. & Admin.News 1978 p. 5787). The maximum actual pecuniary loss suffered by the plaintiff as a result of the false pretenses is the amount paid for the automobile — $900.00. Even if the car sold by the defendant had been absolutely worthless, the plaintiff would be adequately compensated by a damage award of $900.00. Before the Bankruptcy Code went into effect, there was a great deal of confusion and conflicting judicial interpretations of the dis-chargeability of punitive damages assessed against the debtor in prior proceedings. See [In re] Beard, supra, [5 B.C.D. 680] at 682, 683; contra, U.S. v. RePass, 688 F.2d 154, 157 (2d Cir.1982). Such uncertainty was principally due to the “provable debt” concept contained in Section 17 and Section 63 of the Bankruptcy Act. However, the Bankruptcy" } ]

[ { "docid": "779353", "title": "", "text": "the argument over class certification, development of a sound damage theory proved substantially more difficult. In retrospect, plaintiffs’ damage theory is deceptively simple. It is based on the Hencel diaries and a comparison of Weyerhaeuser periods “on the phone” and “off the phone.” By using the latter periods as the competitive benchmark, plaintiffs could establish the conspiratorial overcharge during the period “on the phone.” As the Court knows, damage estimates computed by this method are approximately $169 million for the four year period from 1971-1974, $30 million less than the amount actually recovered by the class in this litigation. Although the theory is simple, it is proper to point out that extensive time was spent in its development and in insuring that the theory would prove successful upon a trial on the merits. It is also proper to note that without damages there can be no recovery for the benefit of the class, even though liability is convincingly established. 5. Settlement Negotiations. The $200,000,000 settlement achieved in this litigation constitutes, on the plaintiffs’ theory of the case, 118% of the single damages sustained by the entire class on total purchases from defendants for four years. This result reflects plaintiffs’ policies that a) no settlements were to be consummated until full and complete economic data was obtained from each defendant and b) plaintiffs would continue to prepare vigorously for trial during any settlement negotiations. The settlement was the largest dollar settlement in the history of class action litigation at the time it was made, and is the highest settlement ever achieved as a percentage of single damages, i. e., 118%. Compared to settlements approved as fair, adequate and reasonable in other cases the result is outstanding. For example, in Newman v. Stein, 464 F.2d 689 (2d Cir. 1972), the Court approved a settlement representing 14% of potential recovery; in City of Detroit v. Grinnell Corp., 356 F.Supp. 1380, 1386 (S.D.N.Y.1972), aff’d, 495 F.2d 448 (2d Cir. 1974), the Court approved a settlement amounting to 9-11% of estimated damages; in In Re Four Seasons Securities Law Litigation, 58 F.R.D. 19, 37 (W.D." } ]

[ { "docid": "12294282", "title": "", "text": "of Plaintiffs’ experts’ damages estimates that is well within the range typically approved by courts in passing on reasonableness. See e.g., Erie Forge and Steel, Inc. v. Cyprus Minerals Co., Civil No. 94-404 (W.D.Pa. Dec.23, 1996) (approving settlement of $3.6 million where plaintiffs’ expert estimated damages at $33 million); Fox v. Integra Financial Corp., Civil Action No. 90-1504 (W.D.Pa. July 9, 1996) (approving settlement of $6.5 million where plaintiffs’ best estimate of provable damages was $33 million); In re Four Seasons Sec. Litig., 58 F.R.D. 19, 36-37 (W.D.Okla.1972) ($8 million settlement approved, although claims exceeded $100 million); Cagan v. Anchor Sav. Bank FSB, [1990 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 95,324 at 96,559, 1990 WL 73423 at *12-13 (E.D.N.Y. May 22, 1990) (approving $2.3 million class settlement over objections that “best possible recovery would be approximately $121 million”); Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534, 542 (S.D.Fla.1988) (“The mere fact that the proposed settlement of $.20 a share is a small fraction of the desired recovery of $3.50 a share is not indicative of an inadequate compromise.”), affd 899 F.2d 21 (11th Cir.1990). 47. In light of the well-recognized risks faced by litigants in proving liability and damages in cases of this type, courts have determined that a settlement can be approved even if benefits amount to a small percentage of the recovery sought. In Detroit v. Grinnell Corp., 495 F.2d 448, 455 (2d Cir.1974), impliedly overrruled in non-relevant part by Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989), the Second Circuit stated: “The fact that a proposed settlement may only amount to a fraction of the potential recovery does not, in and of itself, mean that the proposed settlement is grossly inadequate and should be disapproved.” And, “there is no reason, at least in theory, why a satisfactory settlement could not amount to a hundredth or even a thousandth part of a single percent of the potential recovery.” 495 F.2d at 455 n. 2. 48.Consequently, class settlements involving far smaller percentage recoveries have been approved. See e.g., Weinberger v. Kendrick, 698" }, { "docid": "23681642", "title": "", "text": "value could reasonably be estimated. Placing the total value of United States imports of rough diamonds during the Direct Purchaser Class Period at $4.3 billion, the expert estimated that at least 46% — or approximately $2 billion — of the rough diamond sales were excluded sales; applying the 4.85 weighted overcharge percentage to that $2 billion, the expert theorized that the overcharge percentage was near $100 million. (Id.) As such, the proposed $22.5 million recovery represented more than 20% of the single damages. (Id.) The District Court found this estimate reasonable and the objectors do not protest this methodology. Instead, the objectors contend that the District Court abused its discretion in overvaluing the settlement by considering only estimated single damages in its “best possible recovery” inquiry, rather than comparing the settlement amount to the treble damages that are an automatic component of antitrust damages recovery in many jurisdictions. (Bagolie Br. 28, 32-43.) Although the objectors correctly note that the District Court compared the settlement recovery to single damages in evaluating the propriety of the settlement’s monetary component, (App’x 301), we do not agree with the objectors that this methodology constituted legal error. Some disagreement exists in the case law as to whether the reasonableness of a settlement amount should be evaluated by comparison to the potential single damages of a class or the trebled damages authorized in certain jurisdictions. Compare County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1324 (2d Cir.1990) (“[T]he district judge correctly recognized that it is inappropriate to measure the adequacy of a settlement amount by comparing to a trebled base recovery figure.”), Carnegie v. Household Intern., Inc., 445 F.Supp.2d 1032, 1035 (N.D.Ill.2006) (“[Numerous courts have held that in determining a settlement value, the potential for treble damages should not be taken into account.”), and Lorazepam & Clorazepate Antitrust Litig., 205 F.R.D. 369, 376 (D.D.C.2002) (“[T]he standard for evaluating settlement involves a comparison of the settlement amount with the estimated single damages.”), with In re Auction Houses Antitrust Litig., 2001 WL 170792, at *7 (S.D.N.Y. Feb. 22, 2001) (“[T]here are few perceptible justifications of" }, { "docid": "19026421", "title": "", "text": "Foods ], 546 F.Supp. at 6; see Flinn v. FMC Corp., 528 F.2d 1169, 1173 (4th Cir.1975), cert. denied, 424 U.S. 967 [96 S.Ct. 1462, 47 L.Ed.2d 734] (1976). This proposition is not without its attractions; its acceptance would go far to alleviate the burdens placed upon the judiciary to evaluate the proposed class action settlements as to their fairness, reasonableness and adequacy. However much this court respects the professional judgment of the highly experienced counsel involved in this litigation, the court is convinced that, while the informed opinions of plaintiff and defense counsel to this action are not without significant weight, the proposed settlements must be independently evaluated within the confines of the case at bar — such is the nature of the judicial function. Fortunately for the court, the requisite evaluation is simplified by the unique circumstances of this case. First, the record bespeaks the professionalism of all counsel in pursuit of an acceptable settlement negotiated in good faith and at arms-length. Plaintiffs’ counsel approached the settlement negotiations utilizing the traditional focus on a four year segment of the alleged conspiracy period. Restriction to a four year term is the result of the statutory limitations period governing antitrust class action claims. “[I]n most of the settlements approved in other class action antitrust cases, the period has been 4 years which is the statute of limitation for such actions”. City of Detroit v. Grinnell Corp., 356 F.Supp. 1380, 1386 (S.D.N.Y.1972), rev’d on other grounds, 495 F.2d 448 (2d Cir. 1974). Thus, federal courts recognize the appropriateness of restricting settlements to a four year focus period. See e.g. In re Anthracite Coal Antitrust Litigation, 79 F.R.D. 707, 714 (M.D.Pa.1978). Further, de spite the fact that a successful plaintiff would be entitled to treble damages, because of the recognized difficulties of proof and requirements of a costly trial on the merits, “the vast majority of courts which have approved settlements in [antitrust class actions] ... have given their approval to settlements which are traditionally based on an estimate of single damages only”. City of Detroit v. Grinnell Corp., 495 F.2d at" }, { "docid": "23681644", "title": "", "text": "the single damages standard for the determination of the fairness of antitrust class actions,” which “places the settlement court, [acting] as a fiduciary for the absent class members, in a position in which it may be forced to approve a settlement that no non-representative plaintiffs would accept”), and In re Compact Disc Minimum Advertised Price Antitrust Litig., 216 F.R.D. 197, 210 n. 30 (D.Me.2003) (“[I]f a settlement reflects a potential damage recovery, it should logically reflect the other parts of that recovery (trebling and attorneys’ fees) that the statute awards automatically.”). That said, “we know of no authority that requires a district court to assess the fairness of a settlement in light of the potential for trebled damages.” Comm. Bank II, 622 F.3d at 312 (emphasis in original); see also Rodriguez v. West Publishing Corp., 563 F.3d 948, 964-65 (9th Cir.2009) (“We have never precluded courts from comparing the settlement amount to both single and treble damages. By the same token, we do not require them to do so in all cases.”). Rather, “courts generally determine fairness of an antitrust class action settlement based on how it compensates the class for past injuries, without giving much, if any, consideration to treble damages.” Rodriguez, 563 F.3d at 964; see also City of Detroit v. Grinnell Corp., 495 F.2d 448, 458-59 (2d Cir.1974) (“[T]he vast majority of courts which have approved settlements ... have given their approval ... based on an estimate of single damages only.”), overruled on other grounds as recognized by U.S. Football League v. Nat’l Football League, 887 F.2d 408, 415-16 (2d Cir.1989). Without delving into the debate over whether single or treble damages are the proper variable of comparison, we cannot label the District Court’s adherence to the commonly accepted procedure for assessing the fairness, adequacy, and reasonableness of a settlement an abuse of discretion. Moreover, many of the state law claims asserted would not provide for treble damages recovery. Finding no abuse in the District Court’s conclusion that the proposed settlement offered a reasonable recovery, particularly “when accounting for the additional relief provided by the injunction,” (App’x" }, { "docid": "12997736", "title": "", "text": "In addition to the above amounts, TBI will pay all the expenses of administering the settlement and will pay up to $600,000 for counsel fees and expenses as awarded by the Court. Plaintiffs’ attorneys agree to accept an award not to exceed $600,000. The general principles which guide the Court in assessing the fairness, reasonableness and adequacy of a class action settlement are clear. . the role of a court in passing upon the propriety of the settlement of a class action is a delicate one since ‘[t]he very purpose of a compromise is to avoid the trial of sharply disputed issues and to dispense with wasteful litigation,’ the court must not turn the settlement hearing ‘into a trial or a rehearsal of the trial.’ Rather . it must reach ‘an intelligent and objective opinion of the probabilities of ultimate success should the claim be litigated’ and ‘form an educated estimate of the corn- plexity, expense, and likely duration of such litigation . . . and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise.’ Newman v. Stein, 464 F.2d 689, 691-92 (2d Cir.), cert. den., 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 488 (1972) (citations omitted). Levin v. Mississippi River Corp., 59 F.R.D. 353, 361 (S.D.N.Y.1973). Some of the factors considered “relevant to a full and fair assessment” of the proposed settlement by the District Court, and approved by the Court of Appeals in City of Detroit v. Grinnell Corporation, 495 F.2d 448, 463 (2d Cir. 1972), were: 1) the complexity, expense and likely duration of the litigation; 2) the reaction of the class to the settlement; 3) the stage of the proceedings and the amount of the discovery completed; 4) the risks of establishing liability; 5) the risks of establishing damages; 6) the risks of maintaining the class action through the trial; 7) the ability of the defendants to withstand a greater judgment; 8) the range of reasonableness of the settlement fund in light of the best possible recovery; 9) the range of reasonableness of the settlement fund to" }, { "docid": "779407", "title": "", "text": "the fact that the time-rate analysis which it adopted as a starting point in its determination of appropriate and reasonable fees did not fully reflect the quality of work exhibited in this litigation. Individual billing rates of attorneys reflect to a degree unusual skill and expertise. Nonetheless, these rates were reduced in many instances herein in order to achieve consistency and to cure blatant discrepancies. In addition, where unusual skill was exhibited in this litigation by attorneys at whatever level, that factor was considered by the Committee. c) The Benefits Conferred Upon the Class : The Committee recommends that important consideration be accorded to the results achieved in this litigation. There are two aspects of the benefit factor which tend to overlap. First, it is the opinion of the Committee that there are very few factors which more aptly reflect the quality of work performed than a highly favorable settlement achieved for the benefit of a class. Second, there are several public policy reasons for giving prime consideration to the recovery secured when arriving at a fair, just, and reasonable award of attorneys’ fees. Both of these aspects will be discussed below. The recovery achieved in this matter represents the highest recovery ever achieved in a class action as of the date it was consummated. The fund approximates 118% of single damages and as such is unprecedented (see pp. 253, 254 supra). The size of the settlements does not imply, however, that little risk was assumed by class counsel in pursuing this litigation. Defendants in these actions will often settle even for large dollars for pragmatic reasons, rather than risk potential trebled damages, where estimated damages themselves are apparently high. Seiffers v. Topsy’s International, Inc., 70 F.R.D. 662 (D.Kan.1976). The Committee believes that the proper standard to evaluate a class action settlement is to compare the recovery to single as opposed to treble estimated damages. Detroit v. Grinnell & Co., 495 F.2d 448, 459 (2d Cir. 1974). In view of this consideration, counsel in this litigation could not possibly have achieved a more beneficial recovery for the class. The Committee" }, { "docid": "19026422", "title": "", "text": "a four year segment of the alleged conspiracy period. Restriction to a four year term is the result of the statutory limitations period governing antitrust class action claims. “[I]n most of the settlements approved in other class action antitrust cases, the period has been 4 years which is the statute of limitation for such actions”. City of Detroit v. Grinnell Corp., 356 F.Supp. 1380, 1386 (S.D.N.Y.1972), rev’d on other grounds, 495 F.2d 448 (2d Cir. 1974). Thus, federal courts recognize the appropriateness of restricting settlements to a four year focus period. See e.g. In re Anthracite Coal Antitrust Litigation, 79 F.R.D. 707, 714 (M.D.Pa.1978). Further, de spite the fact that a successful plaintiff would be entitled to treble damages, because of the recognized difficulties of proof and requirements of a costly trial on the merits, “the vast majority of courts which have approved settlements in [antitrust class actions] ... have given their approval to settlements which are traditionally based on an estimate of single damages only”. City of Detroit v. Grinnell Corp., 495 F.2d at 458. In this case, the focus period selected was 1973-1976. These years coincide with the terminal year alleged in the related federal indictment; 1976 was also the year in which Milton Bradley ceased the manufacture of art materials. Accordingly, it was reasonable and proper for counsel to focus on the term selected. Because the matter at bar is the proposed settlement of this action, it is unnecessary for the court to detail and review the actual settlement process. However, the court notes that the brief description of the progress of the settlements, presented by plaintiffs in their brief in support of the settlements, fairly and adequately reflects the actual settlement process. A second factor considered by this court to be of significance in its evaluation of the proposed settlements is the actual payout. The fund generated by the settlements represents over sixty-eight percent of the profits attributable to the defendants’ sales of art materials during the focus years. It is also remarkable that the settlements as proposed would effect a recovery of 4.3 percent of" }, { "docid": "12294281", "title": "", "text": "particular case and the risks and costs inherent in litigating to the end. See Newman v. Stein, 464 F.2d 689, 693 (2d Cir.1972), cert. denied sub nom. Benson v. Newman, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 488 (1972). In assessing the Pennzoil and Witco Settlement, the Court must determine whether the recovery falls within that range of reasonableness, “not whether it is the most favorable possible result of litigation.” Fisher Bros. v. Cambridge-Lee Indus., Inc., 630 F.Supp. at 489. See also Davies v. Continental Bank, 122 F.R.D. 475, 480 (E.D.Pa.1988). As the Fifth Circuit has explained in a frequently-quoted passage: [It should not] be forgotten that compromise is the essence of a settlement. The trial court should not make a proponent of a proposed settlement “justify each term of settlement against a hypothetical or speculative measure of what concessions might have been gained; inherent in compromise is a yielding of absolutes and abandoning of highest hopes.” Cotton v. Hinton, 559 F.2d at 1330 (citation omitted). 46. The settlement amount here represents a percentage of Plaintiffs’ experts’ damages estimates that is well within the range typically approved by courts in passing on reasonableness. See e.g., Erie Forge and Steel, Inc. v. Cyprus Minerals Co., Civil No. 94-404 (W.D.Pa. Dec.23, 1996) (approving settlement of $3.6 million where plaintiffs’ expert estimated damages at $33 million); Fox v. Integra Financial Corp., Civil Action No. 90-1504 (W.D.Pa. July 9, 1996) (approving settlement of $6.5 million where plaintiffs’ best estimate of provable damages was $33 million); In re Four Seasons Sec. Litig., 58 F.R.D. 19, 36-37 (W.D.Okla.1972) ($8 million settlement approved, although claims exceeded $100 million); Cagan v. Anchor Sav. Bank FSB, [1990 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 95,324 at 96,559, 1990 WL 73423 at *12-13 (E.D.N.Y. May 22, 1990) (approving $2.3 million class settlement over objections that “best possible recovery would be approximately $121 million”); Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534, 542 (S.D.Fla.1988) (“The mere fact that the proposed settlement of $.20 a share is a small fraction of the desired recovery of $3.50 a share is not" }, { "docid": "21299247", "title": "", "text": "out of a common fund shared with class plaintiffs, such that the amount recovered by plaintiffs is reduced by the amount awarded in attorneys’ fees. Id. Here, in contrast, the settlement has separate funds for class recovery and attorneys’ fees, and because the attorneys’ fees are borne by defendants and not plaintiff, they represent a valuable part of the settlement. Id. at *4, *9. As noted above, Plaintiffs’ expert estimated their top-end single damages at approximately $12 million. Sink Decl. ¶ 7. A total common fund valued at $8.3 million thus represents a recovery of more 75% of Plaintiffs’ highest estimate of damages, which significantly did not account for any reduction in damages due to sampling. Counsel believes that this comparison demonstrates the fairness, adequacy, and reasonableness of the settlement because “[o]ther settlements involving dramatically smaller percentages of single damages have been routinely approved.” Final Mem. at 15-16 (citing cases with recoveries ranging from 8.1%-36% of damages). In addition, as Class Counsel noted at the fairness hearing, an expert retained by plaintiffs in one of the related cases pending before this Court opined that individual consumers suffered total damages of $6.6 million as a result of Defendants’ agreement. Expert Report of Larry Karp, Ph.D. (submitted as Pis.’ Ex. 1 at the 11/6/07 Fairness Hrg.) at 26. Plaintiffs’ total settlement of $8.3 million is therefore in excess of at least one estimate of their total damages. The Court agrees with Plaintiffs’ counsel that the total value of the settlement in this action compares quite favorably to either expert’s estimate of total damages suffered by the Settlement Class. Moreover, for all of the reasons discussed above, the Court finds that the settlement represents the product of arm’s length-negotiations between experienced counsel, after adequate opportunity for discovery. As such, the Court concludes that the settlement is fair, adequate, and reasonable, and that the requirements of Rule 23(e)(1)(C) are therefore met. D. Attorneys’ Fees, Expenses, and Incentive Awards Finally, the Court turns to considering the attorneys’ fees, expenses, and incentive awards requested in Class Counsel’s Petition. Class Counsel request that the Court grant them" }, { "docid": "20809703", "title": "", "text": "period. The damage period covers 11(4 years from April 13, 1957 to July 11, 1968. The starting date is 4 years prior to the institution of the government enforcement action, which represents the usual statute of limitations period. Clayton Act § 4B. Notice of this application was mailed to some 89,000 customers of defendants who had total billings of some $800,-000,000 during the damage period. In addition, publication of the notice appeared for 3 consecutive weeks in both the Wall Street Journal (all regional editions) and the New York Times. 14,156 customers filed claims involving total billings of $330,525,000. $37,-979,000 of these claims has been challenged either by the plaintiff or the defendants. In addition, the total billings included excise taxes of about $25,000,-000. The proposed settlement would thus afford a recovery of from 3.2% to 3.7% of the total billings of customers who filed claims. The exact percentage will depend on the resolution of the contested claims and whether or not the amount of excise taxes is included in the computation. Rule 23(e) requires that a class action may be compromised only with the approval of the court. Approval should be given if the settlement is fair, reasonable and adequate. The settlement hearing should not be turned into a trial or a rehearsal of the trial. Newman v. Stein, 464 F.2d 689, 692 (2d Cir. 1972). The evaluation of the proposed settlement in this type of litigation against this standard requires an amalgam of delicate balancing, gross approximations and rough justice. Saylor v. Lindsley, 456 F.2d 896, 904 (2d Cir. 1972). In Protective Committee v. Anderson, 390 U.S. 414, at pages 424-425, 88 S.Ct. 1157, at page 1163, 20 L.Ed.2d 1 (1968), the Court said: “Further, the judge should form an educated estimate of the complexity, expense, and likely duration of such litigation, the possible difficulties of collecting on any judgment which might be obtained, and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise. Basic to this process in every instance, of course, is the need to compare the terms" }, { "docid": "12294284", "title": "", "text": "F.2d at 65 ($2.84 million settlement upheld which, because of legal difficulties, amounted to “only a negligible percentage of the losses suffered by the class,” which were estimated at between $250 million and $1 billion); Fisher Bros., Inc. v. Mueller Brass Co., 630 F.Supp. 493, 499 (E.D.Pa.1985) (approving settlement of 0.2% of sales); Behrens v. Wometco Enterprises, Inc., 118 F.R.D. at 542 (settlement of 5.7% of total damages); Cagan v. Anchor Savings Bank FSB, supra (settlement of $2.3 million where estimated damages were $121 million); Mersay v. First Republic Corp. Of America, [1967-1969 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 92,304 at 97,443 (S.D.N.Y.1968) (5 to 10%); In re Four Seasons Sec. Litig., 58 F.R.D. at 36-37 (settlement of less than 8% estimated damages); Bagel Inn, Inc. v. All Star Dairies, 1982-1 Trade Cases (CCH) ¶ 64,512, 1981 WL 2185 at *3 (D.N.J.1981) (settlement of 8% of potential damages); Feder v. Harrington, 58 F.R.D. 171, 176 (S.D.N.Y.1972) (Court approved settlement of 16% of “realistic damages”). 49.As discussed above, the Plaintiffs in this case bear significant risks in seeking to establish liability and damages and in prevailing on all issues essential to a fully-litigated recovery. In weighing their prospects for success in the action, the Court need not, and should not, engage in a trial of the merits. Bryan v. Pittsburgh Plate Glass Co., 494 F.2d at 804. The very purpose of a settlement is to avoid the trial of disputed issues. Newman v. Stein, 464 F.2d at 692. As expressed by one court, [T]he Court should consider the vagaries of litigation and compare the significance of immediate recovery by way of the compromise to the mere probability of relief in the future, after protracted and expensive litigation. In this respect, “it has been held proper to take the bird in the hand instead of a prospective flock in the bush.” In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. at 326 (citing Oppenlander v. Standard Oil Co., 64 F.R.D. 597, 624 (D.Colo.1974)). 50. The range-of-reasonableness factor clearly supports approval of the Settlement. The Pennzoil and Witco Settlement is fair," }, { "docid": "836425", "title": "", "text": "results in a fund of approximately 41% of the best possible recovery, which is well within the range of reasonableness as established by other court-approved class action settlements cited by plaintiffs’ counsel. See, e.g., County of Suffolk v. LILCO, supra (court approved settlement of less than 10% of estimated minimum recoverable damages); Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534 (S.D.Fla.1988), aff'd, 899 F.2d 21 (11th Cir.1990) (court approved settlement of 5.7% of total damages recoverable); In re Anthracite Coal Antitrust Litigation, 79 F.R.D. 707, 714 (M.D.Pa. 1978), aff'd in part, vacated in part sub nom., Colonial Fuel Corp. v. Blue Coal Corp, 612 F.2d 571 (3d Cir.1979) (court approved settlement of 28% of maximum possible recovery). Moreover, the total cash value of the proposed settlement ($2,470,000.00 4- $325,-000.00 administration costs = $2,795,000.00) results in a settlement of approximately 47% of the full value of the combined actions ($5,900,000.00). When the estimated value of the release of excess wear and tear charges ($1,000,000.00) is added to the total cash value of the settlement ($2,795,00.00 + $1,000,-000.00 = $3,795,000.00), the percentage of full value becomes approximately 64%. I. Range of Reasonableness of the Settlement in Light of Attendant Risks of Litigation. As discussed above, considering the risks, delays and expenses associated \"with trial of a case of this magnitude, the proposed settlement is well within the range of reasonableness as established by prior court-approved class action settlements. Upon consideration of all of these factors, and upon consideration of the objection of Murray Tapper, the proposed settlement is approved as fair, adequate and reasonable. II. Fee Petition of Plaintiffs’ Counsel. The law firms of Gross, Shuman, Brizdle & Gilfillan, P.C. and Berger and Montague, P.C., as class counsel for plaintiffs, have filed a joint petition for an award of attorneys’ fees in the amount of $823,-000.00, reimbursement of costs and expenses in the amount of $54,442.62, and incentive awards of $500.00 to each of the seven designated representative plaintiffs (Item 46). All of these amounts would be paid from the settlement fund, and would deplete the fund by a total of $880,460.00." }, { "docid": "18286513", "title": "", "text": "his airline ticket purchases. 4. Motion to Decertify Class on the ground that determination of the passing-on defense would involve tens of millions of individual issues that would predominate over any common issues and would require decades to try en masse as a class action before a jury, an impossible task, thereby making the case unmanageable. . Plaintiffs concede that persons who were fully reimbursed for the cost of their airline tickets could not recover any damages from defendants. See Plaintiffs' Memorandum in Opposition to Defendants’ Motion in Limine filed May 26, 1992, at 3-4. . The parties dealt with the passing-on issue in the Settlement Agreements by defining \"purchaser,\" for settlement purposes, as the person or entity who paid for the ticket at time of purchase, unless that person was reimbursed the amount paid for the purchase of the ticket pursuant to a pre-existing agreement in which case the reimbursing party shall be deemed the purchaser. . For example, plaintiff John W. Morse, who purchased at least ten airline tickets on class flights for business travel, charged the purchases on his individual American Express card, personally paid the bills, and then obtained reimbursement from his company. Morse Dep. at 38, 40. . For example, AMR Corporation, the parent of American, reported 1991 total operating revenues of $12,887,000,000; class revenues for the year are estimated, based upon Department of Transportation data, to be $8,347,309,000. In 1988, defendants’ total operating revenues were $8,824,000,000; class revenues are estimated at $4,328,147,000. Class revenues for each defendant airline, over the period 1988 through the second quarter of 1992 are estimated at: These sales estimates are for the class as certified in Pretrial Order No. 3. While the settlement class is broader in scope, estimation of the corresponding class revenues would entail additional expert analysis, at increased cost to the class. . In analyzing the range of possible recoveries, the Court will consider an estimate of single, rather than treble, damages. Fisher Brothers v. Phelps Dodge Indus., 604 F.Supp. 446, 451 (E.D.Pa. 1985) (citing Detroit v. Grinnell Corp., 495 F.2d 448, 458 (2d Cir.1974). \"Potential" }, { "docid": "12294283", "title": "", "text": "indicative of an inadequate compromise.”), affd 899 F.2d 21 (11th Cir.1990). 47. In light of the well-recognized risks faced by litigants in proving liability and damages in cases of this type, courts have determined that a settlement can be approved even if benefits amount to a small percentage of the recovery sought. In Detroit v. Grinnell Corp., 495 F.2d 448, 455 (2d Cir.1974), impliedly overrruled in non-relevant part by Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989), the Second Circuit stated: “The fact that a proposed settlement may only amount to a fraction of the potential recovery does not, in and of itself, mean that the proposed settlement is grossly inadequate and should be disapproved.” And, “there is no reason, at least in theory, why a satisfactory settlement could not amount to a hundredth or even a thousandth part of a single percent of the potential recovery.” 495 F.2d at 455 n. 2. 48.Consequently, class settlements involving far smaller percentage recoveries have been approved. See e.g., Weinberger v. Kendrick, 698 F.2d at 65 ($2.84 million settlement upheld which, because of legal difficulties, amounted to “only a negligible percentage of the losses suffered by the class,” which were estimated at between $250 million and $1 billion); Fisher Bros., Inc. v. Mueller Brass Co., 630 F.Supp. 493, 499 (E.D.Pa.1985) (approving settlement of 0.2% of sales); Behrens v. Wometco Enterprises, Inc., 118 F.R.D. at 542 (settlement of 5.7% of total damages); Cagan v. Anchor Savings Bank FSB, supra (settlement of $2.3 million where estimated damages were $121 million); Mersay v. First Republic Corp. Of America, [1967-1969 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 92,304 at 97,443 (S.D.N.Y.1968) (5 to 10%); In re Four Seasons Sec. Litig., 58 F.R.D. at 36-37 (settlement of less than 8% estimated damages); Bagel Inn, Inc. v. All Star Dairies, 1982-1 Trade Cases (CCH) ¶ 64,512, 1981 WL 2185 at *3 (D.N.J.1981) (settlement of 8% of potential damages); Feder v. Harrington, 58 F.R.D. 171, 176 (S.D.N.Y.1972) (Court approved settlement of 16% of “realistic damages”). 49.As discussed above, the Plaintiffs in this case bear" }, { "docid": "18683663", "title": "", "text": "settlements was also mailed to the stipulated class; at this time, members of the class could no longer exclude themselves from the class so non-exclusion cannot be used as an indicia of non-objection. But it is extremely relevant that no member of the class has raised any objection to the proposed settlement.’ “[T]his unanimous approval of the proposed settlements by the class members is entitled to nearly dispositive weight in this court’s evaluation of the proposed settlements.” In re Art Materials Antitrust Litigation, 100 F.R.D. 367, 382 (N.D.Ohio 1983). Additionally, approximately 1,890 class members filed claim forms. This demonstrates considerable satisfaction with the results of this litigation. See discussion of percentage claims filed in Zimmer Paper Products, Inc. v. Berger & Montague, P.C., 758 F.2d 86, 92-93 (3d Cir.1985). D. Amount of the Settlement The court must review a settlement to determine whether it falls within a “range of reasonableness,” not whether it is the most favorable possible result of litigation. See Newman v. Stein, 464 F.2d 689, 693 (2d Cir.), cert. denied sub nom., Benson v. Newman, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 488 (1972) (“in any case there is a range of reasonableness with respect to a settlement — a range which recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking any litigation to completion”). Because of these inherent risks of litigation, “the vast majority of courts which have approved settlements in [antitrust class actions] ... have given their approval to settlements which are traditionally based on an estimate of single [rather than treble] damages,” City of Detroit v. Grinnell Corp., 495 F.2d at 458. Mueller’s half-million dollar settlement represented approximately .2% of sales of $240 million’ during 1979-82. Mueller’s .2% ratio of settlement to sales is low compared with Phelps Dodge’s 2.4% settlement ratio, but comparable to Cerro’s .88% ratio, Revere’s .65% ratio, Cambridge-Lee’s .3% ratio, Howell’s .2% ratio, and Halstead’s .1% ratio. The amount of Mueller’s settlement is reasonable in light of Mueller’s status in this case as well as its financial" }, { "docid": "23536380", "title": "", "text": "potential recovery does not, in and of itself, mean that the proposed settlement is grossly inadequate and should be disapproved____ In fact there is no reason, at least in theory, why a satisfactory settlement could not amount to a hundredth or even a thousandth part of a single percent of the potential recovery. Grinnell Corp., 495 F.2d at 455 n. 2; accord Weinberger, 698 F.2d at 65; TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 463-64 (2d Cir.1982). This case represents a material percentage recovery to plaintiffs in light of all the risks of litigation. Plaintiffs’ consulting damage expert has determined that the damages for certain portions of the class, in particular, the “in and outers”, would represent at most a very small portion of total damages and those class members might have difficulty establishing that they sustained any damages attributable to the fraud. Thus, he concluded that damages to the segments of the class most likely to recover, that is, purchasers of common stock, warrants and calls who held those positions beyond the December 8, 1982, announcement and sellers of puts, are in the range of $148 million. Under the settlement proposal, these persons will recover approximately 12% of a reasonable damage figure. The proposal takes into consideration the impact of general industry and market factors, Rolf, 570 F.2d at 49 n. 22; Bonime, 416 F.Supp. at 1384; Blackie, 524 F.2d at 909, n. 25; Burger, 76 F.R.D. at 187-88, and discounts the market losses to account for such factors. In light of the risks of establishing liability and damages, this large cash settlement is surely within the range of reasonableness. Cf. City of Detroit v. Grinnell Corp., 356 F.Supp. 1380, 1386 (S.D.N.Y.1972) (3.2% to 3.7% of the potential recovery “well within the ball park”), affd in part, rev’d on other grounds, 495 F.2d 448 (2d Cir.1974). 4. Complexity, Expense and Likely Duration of Litigation As the foregoing discussion indicates, this action is legally and factually complex. Although much discovery has been conducted, much would remain if the parties were to go to trial. Plaintiffs estimate that" }, { "docid": "23681641", "title": "", "text": "... with the amount of the proposed settlement.” Prudential, 148 F.3d at 322. Notably, in conducting the analysis, the court must “guard against demanding too large a settlement based on its view of the merits of the litigation; after all, settlement is a compromise, a yielding of the highest hopes in exchange for certainty and resolution.” GM Truck, 55 F.3d at 806 (citations omitted). Applying this framework, the District Court described the methodology utilized by the Indirect Purchaser Consumer Subclass’s expert, who theorized that the average overcharge for diamond sales was 4.85% and the total worldwide overcharge equalled $4.99 billion; the United States consumes approximately 50% of the diamonds and diamond jewelry worldwide, rendering the overcharge to the U.S. market equal to $2.49 billion. (App’x 300.) Accordingly, the proposed $272.5 million Indirect Purchaser Settlement Fund represented 10.93% of this overcharge. (Id.) The expert further posited that although the Direct Purchaser Class recovery could not be precisely quantified in the absence of data as to the exact amount of non-De Beers sales to Direct Purchasers, the value could reasonably be estimated. Placing the total value of United States imports of rough diamonds during the Direct Purchaser Class Period at $4.3 billion, the expert estimated that at least 46% — or approximately $2 billion — of the rough diamond sales were excluded sales; applying the 4.85 weighted overcharge percentage to that $2 billion, the expert theorized that the overcharge percentage was near $100 million. (Id.) As such, the proposed $22.5 million recovery represented more than 20% of the single damages. (Id.) The District Court found this estimate reasonable and the objectors do not protest this methodology. Instead, the objectors contend that the District Court abused its discretion in overvaluing the settlement by considering only estimated single damages in its “best possible recovery” inquiry, rather than comparing the settlement amount to the treble damages that are an automatic component of antitrust damages recovery in many jurisdictions. (Bagolie Br. 28, 32-43.) Although the objectors correctly note that the District Court compared the settlement recovery to single damages in evaluating the propriety of the settlement’s" }, { "docid": "779408", "title": "", "text": "a fair, just, and reasonable award of attorneys’ fees. Both of these aspects will be discussed below. The recovery achieved in this matter represents the highest recovery ever achieved in a class action as of the date it was consummated. The fund approximates 118% of single damages and as such is unprecedented (see pp. 253, 254 supra). The size of the settlements does not imply, however, that little risk was assumed by class counsel in pursuing this litigation. Defendants in these actions will often settle even for large dollars for pragmatic reasons, rather than risk potential trebled damages, where estimated damages themselves are apparently high. Seiffers v. Topsy’s International, Inc., 70 F.R.D. 662 (D.Kan.1976). The Committee believes that the proper standard to evaluate a class action settlement is to compare the recovery to single as opposed to treble estimated damages. Detroit v. Grinnell & Co., 495 F.2d 448, 459 (2d Cir. 1974). In view of this consideration, counsel in this litigation could not possibly have achieved a more beneficial recovery for the class. The Committee believes it important to reflect the benefit conferred factor in the fees to be awarded by the Court in order to assure that counsel will actively and vigorously strive to secure the best possible recovery for the class. In this litigation, defendants offered compromise after compromise, in the hope that plaintiffs’ counsel would eventually capitulate to avoid expending further energies and taking further risks. When settlement offers reached 50 to 60% of single damages, counsel had solid grounds backed by legal precedent and economic realities to argue that such an offer be accepted. One hundred million dollars would have been a substantial benefit to the class. Class counsel, however, chose to continue the battle until they secured what they considered to be a full and satisfactory settlement. The Committee treated the outstanding results achieved as an important factor in its fee recommendations. In assessing this factor the Committee was again aided by the Report received from Professor Lucas (Exhibit 4). Professor Lucas was able to analyze the incentive factor by resort to a working economic" }, { "docid": "5389577", "title": "", "text": "the adequacy of a particular settlement fund, the court needs some idea of the relative bounds, first, of best possible recovery and, second, of probable recovery with regard to the risks inherent in the litigation. Measuring these bounds does not imply that they set the limits of permissible recovery in settlement. The fact that a proposed settlement may only amount to a fraction of the potential recovery does not, in and of itself, mean that the proposed settlement is grossly inadequate and should be disapproved. Grinnell I, 495 F.2d at 455. See Harry Lewis v. Great American Mortgage Investors, et al., C.A. No. 75-591 and W. R. Morgan, et al. v. Great American Mortgage Investors, et al., C.A. No. 75-769 (N.D.Ga. May 11, 1978) (Freeman, J.) (approving class action settlement paying 1% of claims); Helfand v. New America Fund, Inc., 64 F.R.D. 86 (E.D.Pa.1974) (approving class action settlement granting payment of 5% of claims); In re Four Seasons Securities Laws Litigation, 58 F.R.D. 19 (W.D.Okla.1972) (approving class action settlement affording approximately 8% recovery on claims); Sunrise Toyota v. Toyota Motor Co., [1973-1] Trade Cases (CCH) ¶ 74,398, at 93,821 (S.D.N.Y.1973) (approving class action settlement authorizing no damage award). Instead, these estimated ranges of possible recovery merely serve as reference points in the court’s evaluation of the presented settlement offer. The court requires reliable economic data in order to assay the fairness, adequacy, and reasonableness of the settlement proposal. No single formula of damage calculation is prescribed or possible in antitrust actions. What is necessary is “ ‘a just and reasonable estimate of the damage[s] based on relevant data.’ ” Hobart Brothers Co. v. Malcolm T. Gilland, Inc., 471 F.2d 894, 902 (5th Cir. 1973) quoting from Bigelow v. RKO Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 90 L.Ed. 652 (1946). “The essential thing is that the plaintiff develop a theory about how the amount of injury can be measured and introduce the data necessary to make the estimate.” L. Sullivan, Handbook of the Law of Antitrust 786 (1977). Plaintiffs have now supplied and introduced into evidence reams of" }, { "docid": "18286514", "title": "", "text": "business travel, charged the purchases on his individual American Express card, personally paid the bills, and then obtained reimbursement from his company. Morse Dep. at 38, 40. . For example, AMR Corporation, the parent of American, reported 1991 total operating revenues of $12,887,000,000; class revenues for the year are estimated, based upon Department of Transportation data, to be $8,347,309,000. In 1988, defendants’ total operating revenues were $8,824,000,000; class revenues are estimated at $4,328,147,000. Class revenues for each defendant airline, over the period 1988 through the second quarter of 1992 are estimated at: These sales estimates are for the class as certified in Pretrial Order No. 3. While the settlement class is broader in scope, estimation of the corresponding class revenues would entail additional expert analysis, at increased cost to the class. . In analyzing the range of possible recoveries, the Court will consider an estimate of single, rather than treble, damages. Fisher Brothers v. Phelps Dodge Indus., 604 F.Supp. 446, 451 (E.D.Pa. 1985) (citing Detroit v. Grinnell Corp., 495 F.2d 448, 458 (2d Cir.1974). \"Potential treble recovery (or, for the same reason, punitive recovery) should not be superimposed as a yardstick for measuring the adequacy of a settlement, lest the settlement negotiation process be derailed from the start.” In re Dennis Greenman Sec. Litig., 622 F.Supp. 1430, 1441 (D.C.Fla. 1985). . Dr. Golaszewski is the Executive Vice President of Gellman Research Associates (“GRA”), a firm specializing in the economics of transportation and technology. The firm and Dr. Golasz-ewski have testified on matters involving air transportation before the U.S. Department of Transportation. GRA has studied the demand for airline services, barriers to entry into the industry, the financial health of the industry, and the effects of airline deregulation on the industry. More recently, GRA has been involved in consulting assignments related to business development opportunities for foreign carriers. Finally, Dr. Golaszewski has advised the U.S. Federal Aviation Administration on long-range forecasting of aviation activity. See Affidavit of Dr. Richard Golaszewski, filed October 15, 1992. Professor Rubin is a tenured professor of economics at Emory University in Atlanta, Georgia. His experience in" } ]

[ { "docid": "7039249", "title": "", "text": "contemplated between these two companies. While there is a multi-billion dollar transaction involved in both cases, a merger creates a far more significant relationship between two companies than does the sale of a business unit. Thus, while a potential merger might require a different outcome, a question that we leave for another day and about which we express no opinion, what remains clear is that the plaintiffs in this case do not have the necessary standing to proceed in an action under Section 10(b) and Rule 10b-5. Finally, the district court, in finding that the plaintiffs lacked standing, appeared to conflate the issue of standing with the question of whether the “in connection with” requirement had been met. This is misleading because these are two distinct inquiries. In order for our court to properly reach the merits of the case, including the “in connection with” requirement, we must first find that the parties involved have met the basic requirements of standing. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Thus, because we find that the plaintiffs lack standing under Section 10(b), we do not reach the “in connection with” requirement. CONCLUSION Stockholders do not have standing to sue under Section 10(b) and Rule 10b-5 when the company whose stock they purchased is negatively impacted by the material misstatement of another company, whose stock they do not purchase. Therefore, we affirm the district court’s dismissal of plaintiffs’ complaint pursuant to Fed. R.Civ.P. 12(b)(6). . Nortel also moved to dismiss both the JDS Complaint and Nortel Complaint on the basis that neither adequately alleged that Nortel made any actionable misstatements of material fact, or that Nortel acted with the requisite scienter. The district court held that the Nor-tel Complaint satisfied these requirements and dismissed the JDS Complaint on other grounds. . While the Private Securities Litigation Reform Act of 1995, Pub.L. No. 104-67, 109 Stat. 737 (1995) (codified in scattered sections of titles 15 and 18 of the United States Code), was enacted to further limit the problem of potentially abusive securities litigation, it did" } ]

[ { "docid": "16365115", "title": "", "text": "out the deficiencies in the complaint and allowing them a free opportunity to cure them. Begala v. PNC Bank, Ohio, Nat’l Ass’n, 214 F.3d 776, 784 (6th Cir.2000). Accordingly, the Court will DENY Glickenhaus’ request for leave to amend. V. THE AZZOLINI AND BERNSTEIN ACTIONS (M3-CV-1003 & 1:03-CV-1005) As stated earlier also pending before the Court in the consolidated Azzolini v. CorTS Trust II for Provident Financial Trust I, et al., and the Bernstein v. CorTS Trust for Provident Financing Trust I, et al., putative securities fraud class actions are “The UnumProvident Defendants’ Motion to Dismiss the Consolidated Amended Complaints” (Azzolini Court File No. 13; Bernstein Court File No. 23) and the “Motion of Defendant J. Harold Chandler to Dismiss the Consolidated Amended Complaints” (Azzolini Court File No. 14; Bernstein Court File No. 25). Both motions are brought pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). In ruling on these motions, the Court has considered the supporting memorandum filed by Defendants (Azzolini Court File No. 14; Bernstein Court File No. 24) (hereinafter, “UnumProvident Memo”), the memorandum in opposition filed jointly by Plaintiffs (Azzolini Court File No. 33; Bernstein Court File No. 44) (hereinafter, “Plaintiffs’ Response”), and the reply briefs filed by Defendants (Azzolini Court File No. 35; Bernstein Court File No. 46) (hereinafter, “UnumProvident Reply”) and Defendant Chandler (Azzolini Court File No. 36; Bernstein Court File No. 47) (hereinafter, “Chandler Reply”). Additionally, Defendants have filed a notice of recent developments and/or supplemental authority (Azzolini Court File Nos. 40, 41; Bernstein Court File Nos.51, 52) to which Plaintiffs have responded (Azzolini Court File No. 42; Bernstein Court File No. 53). For the following reasons, the Court will GRANT both motions to dismiss. Defendants contend the Azzolini and Bernstein complaints should be dismissed because: (1) Plaintiffs’ claims are barred by the statute of limitations to the extent they are predicated upon an alleged company “policy” of denying disability claims which led to a misstatement of UnumPro-vident’s financial condition; (2) Plaintiffs have failed to allege specific facts demonstrating a strong inference of fraudulent intent as required by the heightened pleading standards" }, { "docid": "16365138", "title": "", "text": "shorthand \"Defendants,” but wishes to again clarify it only intends to refer to those defendants involved in the instant motions (i.e., UnumProvident and those individuals currently or formerly affiliated with that company). The Court does not intend to encompass the SSB Defendants through the use of this nomenclature. . Since the Azzolini and Bernstein plaintiffs have joined with each other in all filings related to the instant motions to dismiss, the Court will refer to them collectively as \"Plaintiffs” within § IV of the instant Memorandum. . Plaintiffs devote several pages of their brief in opposition to arguing their complaints adequately plead Defendants’ alleged misrepresentations were made \"in connection with” the purchase or sale of the CorTS certificates, as required for liability under § 10(b) and Rule 10b-5 (Plaintiffs' Response at 16-19). However, Defendants do not appear to raise this issue in their motions to dismiss. Rather, they claim the lack of any direct connection between them and the issuance and sale of the CorTS certificates weighs against Plaintiffs’ allegations of scienter. Defendants do, however, assert a roughly analogous standing argument in their reply brief (see UnumProvi-dent Reply at 12-14). Although the Court notes this standing argument may ultimately be dispositive of Plaintiffs’ claims against the UnumProvident Defendants, see Ontario Public Serv. Employees Union Pension Trust Fund, v. Nortel Networks Corp., 369 F.3d 27, 32-34 (2d Cir.2004) (holding stockholders do not have standing to sue under § 10(b) and Rule 10b-5 where entity whose stock they purchased is negatively impacted by material misstatements of another company), the Court will decline to address this issue since the argument was raised for the first time in a reply brief and Plaintiffs were not given a meaningful opportunity to respond. . As an aside, this allegation is in itself a bit suspect in that all of the allegedly material misstatements identified in the Azzolini and Bernstein complaints occurred after Plaintiffs allege they purchased their CorTS certificates. . The Court notes the Bernstein Complaint appears to contain a mistake in this regard, citing the 37 percent drop as occurring on March 10, 2003, rather" }, { "docid": "16365117", "title": "", "text": "of the PSLRA; (3) Plaintiffs have failed to adequately plead the existence of any actionable material misstatement or omission as required by the PSLRA and Federal Rule of Civil Procedure 9(b); and (4) Plaintiffs have failed to adequately allege causation (see generally UnumProvident Memo at 1-3). Defendants have incorporated the entirety of the arguments advanced in support of their motion to dismiss the Glickenhaus Complaint (Case No. 1:03-CV~49, Court File No. 109) and have offered additional arguments relating to Plaintiffs’ scienter and causation allegations. For the reasons previously stated in § III.B of this Memorandum, the Court rejects the Defendants’ statute of limitations argument, and having reviewed the Azzolini and Bernstein complaints and found them both to be at least as detailed as the Glickenhaus Complaint, the Court finds Plaintiffs have sufficiently alleged an actionable misstatement for the same reasons articulated in § III.C.l. The Court will, however, give independent consideration to Plaintiffs’ scienter and causation allegations. A. Scienter In addition to the arguments advanced with respect to the Glickenhaus Complaint, Defendants point to what they contend is a fact of critical importance with respect to the Azzolini and Bernstein complaints, that is Plaintiffs, unlike Glick-enhaus, never actually purchased any Un-umProvident securities. Indeed, neither Azzolini nor Bernstein has alleged they ever purchased or owned any securities issued by or reflecting obligations of Un-umProvident. The CorTS certificates they did purchase were issued by an unaffiliated entity (i.eDefendant SPC) through trusts created for that specific purpose (Azzolini Complaint at ¶¶ 30, 32; Bernstein Complaint at ¶¶ 40-41). The sole assets of these trusts were securities issued in 1998 by a UnumProvident affiliate (Provident Financing Trust I), whose sole assets were in turn debentures issued directly by UnumProvident (Azzolini Complaint at ¶ 32; Bernstein Complaint at ¶¶ 41). Because UnumProvident did not issue the CorTS certificates and the company’s obligations under the Unum-Provident securities which secured the CorTS certificates are dictated by contract and remain unchanged, Defendants contend they “have no pecuniary interest in the market value or marketability of [the CorTS certificates] or any conceivable motive to defraud holders of those certificates”" }, { "docid": "16365118", "title": "", "text": "they contend is a fact of critical importance with respect to the Azzolini and Bernstein complaints, that is Plaintiffs, unlike Glick-enhaus, never actually purchased any Un-umProvident securities. Indeed, neither Azzolini nor Bernstein has alleged they ever purchased or owned any securities issued by or reflecting obligations of Un-umProvident. The CorTS certificates they did purchase were issued by an unaffiliated entity (i.eDefendant SPC) through trusts created for that specific purpose (Azzolini Complaint at ¶¶ 30, 32; Bernstein Complaint at ¶¶ 40-41). The sole assets of these trusts were securities issued in 1998 by a UnumProvident affiliate (Provident Financing Trust I), whose sole assets were in turn debentures issued directly by UnumProvident (Azzolini Complaint at ¶ 32; Bernstein Complaint at ¶¶ 41). Because UnumProvident did not issue the CorTS certificates and the company’s obligations under the Unum-Provident securities which secured the CorTS certificates are dictated by contract and remain unchanged, Defendants contend they “have no pecuniary interest in the market value or marketability of [the CorTS certificates] or any conceivable motive to defraud holders of those certificates” nor is there any allegation “the market price of the CorTS Certificates bears any relationship whatsoever to the price of UnumProvident’s equity securities” (UnumProvident Memo at 5-6). In short, Defendants contend that even assuming they had some motive and/or intent to artificially inflate UnumProvident’s stock price, they had no motive whatsoever to defraud purchasers of the CorTS certificates issued by SPC. To be sure, the scope of § 10(b) and Rule 10b-5 clearly encompasses misstatements and omissions made by persons who are not affiliated with the issuer of the particular security purchased by the plaintiff. See 15 U.S.C. § 78j (“[i]t shall be unlawful for any person ...”) (emphasis added). Further, the Court is unable to locate any authority suggesting a securities fraud plaintiff must necessarily offer specific motive allegations in order to adequately allege scienter. See Ottmann v. Hanger Orthopedic Group, Inc., 358 F.3d 338, 345 (4th Cir.2003) (“courts should not restrict their scienter inquiry by focusing on specific categories of facts, such as those relating to motive and opportunity, but instead should examine" }, { "docid": "16365020", "title": "", "text": "(Azzolini Court File No. 11, hereinafter ‘Azzolini Complaint”) and Bernstein filed an amended complaint (Bernstein Court File No. 18, hereinafter “Bernstein Complaint”). C. The Glickenhaus Allegations Glickenhaus seeks to represent itself and a putative class of “all persons who [ ] purchased any UnumProvident publicly-traded securities on the open market during the period March 30, 2000 through April 24, 2003 (the ‘Class Period’)” excluding all “directors and officers of UnumPro-vident and their families and affiliates” (Glickenhaus Complaint at ¶229). The Glickenhaus Complaint asserts causes of action against the UnumProvident Defendants for violations of (1) § 10(b) of the Securities Exchange Act of 1934 (“1934 Act”) and Rule 10b-5 promulgated thereunder (id. at ¶¶ 235-39), and (2) § 20(a) of the 1934 Act (id. at ¶¶ 240-41). The Glick-enhaus Complaint is 149 pages in length and contains 241 numbered paragraphs. It is organized and structured topically as follows: Nature of the Action (¶¶ 1-10); Jurisdiction and Venue (¶¶ 11-12); The Parties (¶¶ 13-23); Background to the Fraudulent Scheme (¶¶ 24-33); Defendants’ Illegal Manipulation of Reserves by Denying and Terminating Legitimate Claims (¶¶ 34-66); The Truth Comes to Light (¶¶ 67-72); Additional Facts Supporting a Strong Inference of Scienter (¶¶ 73-88); UnumProvident’s False Financial Reporting During the Class Period (¶¶ 89-92); UnumProvident Failed to Provide Adequate Claims Reserves (¶¶ 93-101); UnumProvident Failed to Provide Full and Adequate Disclosures Concerning its Claims Manipulations (¶¶ 102-04); Un-umProvident Failed to Properly Account for the Non-Temporary Impairment of its Investments (¶¶ 105-18); UnumProvident Made Misleading Statements Regarding its Investments (¶¶ 119-26); UnumProvi-dent’s Restatement is an Admission of Falsity (¶¶ 127-30); False and Misleading Statements. During the Class Period (¶¶ 131-228); Plaintiffs Class Action Allegations (¶¶ 229-34); First Claim for Relief (¶¶ 235-39); Second Claim for Relief (¶¶ 240-41); Prayer; and Jury Demand. According to the Glickenhaus Complaint, the Defendants participated in a fraudulent scheme to manipulate UnumProvi-dent’s financial results by improperly denying or terminating disability claims. Glickenhaus alleges the Defendants did this for the purposes of permitting the company to consistently meet earnings projections, enabling the company to maintain its high debt and bond ratings and" }, { "docid": "16365121", "title": "", "text": "supporting a strong inference of scienter with respect to the alleged claims handling misrepresentations. By the same token though, the general lack of particularized motive only serves to weaken Plaintiffs’ scienter allegations with respect to the alleged investment misrepresentations. Moreover, the allegations regarding UnumProvi-dent’s accounting for investments in the Azzolini and Bernstein complaints provide considerably less detail than those in the Glickenhaus Complaint. Therefore, the Court finds the reasoning set forth in § III.B.2.b even stronger within the context of the Azzolini and Bernstein complaints and concludes Plaintiffs have failed to adequately plead scienter with respect to Defendants’ alleged investment misrepresentations. B. Causation With respect to causation, Defendants again incorporate the arguments advanced previously in connection with their motion to dismiss the Glickenhaus Complaint, but additionally argue Plaintiffs have failed to allege transaction causation (UnumProvident Response at 6-11). As stated previously by the Court, a securities fraud plaintiff must adequately allege facts demonstrating both (1) that but for the defendant’s fraudulent statement or omission, the plaintiff would not have entered into the transaction for the purchase or sale of a security (i.e., transaction causation), and (2) that the subject of the fraudulent statement relied upon was the cause of the actual loss suffered (i.e., loss causation). Defendants’ transaction causation argument challenges Plaintiffs’ ability to take advantage of the presumption of detrimental reliance afforded by the “fraud on the market” theory of liability, but the Court ultimately need not take up this argument since Plaintiffs’ allegations of loss causation suffer inadequacies greater than those in the Glickenhaus Complaint. Plaintiffs repeatedly allege Defendants’ material misstatements and omissions caused them to purchase the CorTS certifi cates at artificially inflated prices (see Azzolini Complaint at ¶¶ 10, 17, 206, 207, 212, 213, 214; Bernstein Complaint at ¶¶10, 20, 206, 207, 212, 213). However, the Supreme Court recently held such allegations standing alone do not satisfy a securities fraud plaintiffs burden of pleading causation. Dura, 125 S.Ct. at 1631-34. Beyond their general allegations of having purchased the CorTS certificates at an inflated price, Plaintiffs, like Glickenhaus, have also pointed to market reactions to certain events" }, { "docid": "16365027", "title": "", "text": "Relief (¶ 237). Bernstein seeks to represent herself and a putative class “consisting of all those who purchased or otherwise acquired CorTS Certificates pursuant or traceable to an initial public offering on or about January 31, 2001 through March 24, 2003, inclusive (the ‘Class Period’) and who were damaged thereby” (Bernstein Complaint at ¶ 34) asserting, inter alia, causes of action against Defendants UnumProvident, Chandler, and Greving under § 10(b) of the 1934 Act and Rule 10b-5 promulgated thereunder (id. at ¶¶ 205-15) and against Defendants Chandler and Greving under § 20(a) of the 1934 Act (id. at ¶¶ 216-19). The Bernstein Complaint is 89 pages in length and contains 219 numbered paragraphs. It is organized and structured topically as follows: Nature of the Action (¶¶ 1-15); Jurisdiction and Venue (¶¶ 16-19); Parties (¶¶ 20-33); Plaintiffs Class Action Allegations (¶¶ 34-39); Substantive Allegations: The CorTS I IPO (¶¶ 40-51); Substantive Allegations: UnumProvident’s Fraud (¶¶ 52-139); Substantive Allegations: Scienter Allegations with Respect to Defendant UnumProvident (¶¶ 140-57); Substantive Allegations: Violations by SSB and SPC (¶¶ 158-89); Count I (¶¶ 190-96); Count II (¶¶ 197-201); Count III (¶¶ 202-04); Count IV (¶¶ 205-15); Count V (¶¶ 216-19); and Jury Trial Demanded. The Azzolini and Bernstein complaints contain largely identical allegations Defendants “issued and/or failed to correct false and misleading public statements and filings concerning the Company’s financial performance during the Class Period” (Az-zolini Complaint at ¶ 2; Bernstein Complaint at ¶ 2), specifically by “failing] to disclose that the [company’s] allegedly positive performance was the result of a pervasive and fraudulent scheme to deny and terminate expensive disability insurance claims” (id. at ¶ 6) and “failing] to timely record losses on many of its below-investment-grade securities” (id. at ¶ 8). Both sets of allegations claim these actions and Defendants’ failure to disclose them resulted in material overstatements of the company’s income (id. at ¶¶ 7, 9) and caused the company’s securities “to trade at artificially inflated levels throughout the Class Period” (id. at ¶ 10). Both complaints then proceed to allege the details of a deliberate company-wide scheme to deny and/or terminate" }, { "docid": "16365122", "title": "", "text": "purchase or sale of a security (i.e., transaction causation), and (2) that the subject of the fraudulent statement relied upon was the cause of the actual loss suffered (i.e., loss causation). Defendants’ transaction causation argument challenges Plaintiffs’ ability to take advantage of the presumption of detrimental reliance afforded by the “fraud on the market” theory of liability, but the Court ultimately need not take up this argument since Plaintiffs’ allegations of loss causation suffer inadequacies greater than those in the Glickenhaus Complaint. Plaintiffs repeatedly allege Defendants’ material misstatements and omissions caused them to purchase the CorTS certifi cates at artificially inflated prices (see Azzolini Complaint at ¶¶ 10, 17, 206, 207, 212, 213, 214; Bernstein Complaint at ¶¶10, 20, 206, 207, 212, 213). However, the Supreme Court recently held such allegations standing alone do not satisfy a securities fraud plaintiffs burden of pleading causation. Dura, 125 S.Ct. at 1631-34. Beyond their general allegations of having purchased the CorTS certificates at an inflated price, Plaintiffs, like Glickenhaus, have also pointed to market reactions to certain events (Azzolini Complaint at ¶¶ 128-29, 133; Bernstein Complaint at ¶ 132-33, 136). However, none of those events involved revelations or disclosures of UnumProvident’s allegedly unlawful and/or fraudulent claims handling practices. Consequently, the Azzolini and Bernstein Complaints are completely devoid of any specific allegation of causation with respect to that class of alleged misrepresentations. Nowhere do Plaintiffs allege any negative market reaction relating either to the CorTS certificates or Unum-Provident’s own securities in the wake of events which revealed UnumProvident’s allegedly unlawful claims handling practices and corresponding scheme to understate claim reserves and overstate income. Moreover, Plaintiffs do not even so much as present an explicit conclusive allegation the price of UnumProvident’s securities or the CorTS certificates dropped significantly once the truth became known. Accordingly, at least with respect to-the alleged claims handling misrepresentations, Plaintiffs’ causation allegations are even more lacking than those the Court previously found barely adequate in the Glickenhaus Complaint. Glickenhaus at least described market reactions to two events bearing a tangential relation to the alleged claims handling misrepresentations (ie., the October 2," }, { "docid": "16365019", "title": "", "text": "2003, the Court selected Glickenhaus & Company (hereinafter “Glickenhaus”) for this role and approved its selection of lead counsel (Case No. l:03-CV-49, Court File Nos. 76, 77). The Court later consolidated a sixth putative securities fraud class action, Martin v. UnumProvident Corp., et al., Case No. L03-CV-162, which had originally been filed in the Southern District of New York but was transferred to this Court prior to the conclusion of the proceedings before the JPML (see Case No. L03-MD-1552, Court File No. 34). Additionally, the Court consolidated the Azzoli-ni action with two other putative securities fraud class actions brought by purchasers of CorTS Trust II certificates, but elected not to consolidate those actions with either the Bernstein action or the six actions consolidated into In re UnumProvident Corp. Securities Litigation (see Azzolini Court File Nos. 9,10). Glickenhaus filed a “Consolidated Complaint for Violation of the Federal Securities Laws” on January 9, 2004 (Case No. l:03-CV-49, Court File No. 83, hereinafter “Glickenhaus Complaint”), and, on March 19, 2004, the Azzo-lini plaintiffs filed a consolidated amended complaint (Azzolini Court File No. 11, hereinafter ‘Azzolini Complaint”) and Bernstein filed an amended complaint (Bernstein Court File No. 18, hereinafter “Bernstein Complaint”). C. The Glickenhaus Allegations Glickenhaus seeks to represent itself and a putative class of “all persons who [ ] purchased any UnumProvident publicly-traded securities on the open market during the period March 30, 2000 through April 24, 2003 (the ‘Class Period’)” excluding all “directors and officers of UnumPro-vident and their families and affiliates” (Glickenhaus Complaint at ¶229). The Glickenhaus Complaint asserts causes of action against the UnumProvident Defendants for violations of (1) § 10(b) of the Securities Exchange Act of 1934 (“1934 Act”) and Rule 10b-5 promulgated thereunder (id. at ¶¶ 235-39), and (2) § 20(a) of the 1934 Act (id. at ¶¶ 240-41). The Glick-enhaus Complaint is 149 pages in length and contains 241 numbered paragraphs. It is organized and structured topically as follows: Nature of the Action (¶¶ 1-10); Jurisdiction and Venue (¶¶ 11-12); The Parties (¶¶ 13-23); Background to the Fraudulent Scheme (¶¶ 24-33); Defendants’ Illegal Manipulation of Reserves by" }, { "docid": "16365025", "title": "", "text": "some variations in the language and examples employed in subpara-graph (a), the fifteen falsity allegation sections are substantially identical. Glickenhaus further alleges that in March and April 2003, after Defendants’ activities had begun to come to light through individual lawsuits, state regulatory investigations, media reports, and an inquiry by the Securities and Exchange Commission (“SEC”), UnumProvident restated certain of its financial information for the fiscal years 2000 through 2002 (id. at ¶¶ 67-71). Glickenhaus alleges Defendants’ activities caused the company’s' financial statements to understate expenses and liabilities and overstate income, caused the company’s securities to trade at artificially inflated levels, and enabled the company to issue and sell billions of dollars worth of debt and securities to an investing public that would have had little interest had the truth of the company’s financial condition been known (id. at ¶¶ 10, 72, 83, 89-101). D. The Azzolini and Bernstein Allegations The Azzolini plaintiffs seek to represent themselves and a putative class of “all persons who purchased the Unum-Backed Certificates during the Class Period (March 21, 2001 — March 24, 2003) and who were damaged thereby” (Azzolini Complaint at ¶ 196) asserting, inter alia, causes of action against Defendants UnumProvi-dent, Chandler, and Greving under § 10(b) of the 1934 Act and Rule 10b-5 promulgated thereunder (id. at ¶¶ 205-16) and against Defendants Chandler and Greving under § 20(a) of the 1934 Act (id. at ¶¶ 217-20). and (3) The Azzolni Complaint is 84 pages in length and contains 237 numbered paragraphs. It is organized and structured topically as follows: Nature of the Action (¶¶ 1-13); Jurisdiction and Venue (¶¶ 14-16); Parties (¶¶ 17-27); Substantive Allegations (¶¶ 28-43); UnumPro-vident’s Misconduct (¶¶ 44-89); False and Misleading Statements During the Class Period (¶¶ 90-125); The Truth Emerges (¶¶ 126-43); UnumProvident Defendants’ Scienter (¶¶ 144-60); Material Misrepresentations and Omissions in the CorTS II Prospectus (¶¶ 161-95); Class Action Allegations (¶¶ 196-201); Applicability of Presumption of Reliance: Fraud-on-the-Market Doctrine (¶¶ 202-03); No Safe Harbor (¶ 204); First Claim for Relief (¶¶ 205-16); Second Claim for Relief (¶¶ 217-20); Third Claim for Relief (¶¶ 221-36); and Prayer for" }, { "docid": "16365116", "title": "", "text": "Memo”), the memorandum in opposition filed jointly by Plaintiffs (Azzolini Court File No. 33; Bernstein Court File No. 44) (hereinafter, “Plaintiffs’ Response”), and the reply briefs filed by Defendants (Azzolini Court File No. 35; Bernstein Court File No. 46) (hereinafter, “UnumProvident Reply”) and Defendant Chandler (Azzolini Court File No. 36; Bernstein Court File No. 47) (hereinafter, “Chandler Reply”). Additionally, Defendants have filed a notice of recent developments and/or supplemental authority (Azzolini Court File Nos. 40, 41; Bernstein Court File Nos.51, 52) to which Plaintiffs have responded (Azzolini Court File No. 42; Bernstein Court File No. 53). For the following reasons, the Court will GRANT both motions to dismiss. Defendants contend the Azzolini and Bernstein complaints should be dismissed because: (1) Plaintiffs’ claims are barred by the statute of limitations to the extent they are predicated upon an alleged company “policy” of denying disability claims which led to a misstatement of UnumPro-vident’s financial condition; (2) Plaintiffs have failed to allege specific facts demonstrating a strong inference of fraudulent intent as required by the heightened pleading standards of the PSLRA; (3) Plaintiffs have failed to adequately plead the existence of any actionable material misstatement or omission as required by the PSLRA and Federal Rule of Civil Procedure 9(b); and (4) Plaintiffs have failed to adequately allege causation (see generally UnumProvident Memo at 1-3). Defendants have incorporated the entirety of the arguments advanced in support of their motion to dismiss the Glickenhaus Complaint (Case No. 1:03-CV~49, Court File No. 109) and have offered additional arguments relating to Plaintiffs’ scienter and causation allegations. For the reasons previously stated in § III.B of this Memorandum, the Court rejects the Defendants’ statute of limitations argument, and having reviewed the Azzolini and Bernstein complaints and found them both to be at least as detailed as the Glickenhaus Complaint, the Court finds Plaintiffs have sufficiently alleged an actionable misstatement for the same reasons articulated in § III.C.l. The Court will, however, give independent consideration to Plaintiffs’ scienter and causation allegations. A. Scienter In addition to the arguments advanced with respect to the Glickenhaus Complaint, Defendants point to what" }, { "docid": "16365123", "title": "", "text": "(Azzolini Complaint at ¶¶ 128-29, 133; Bernstein Complaint at ¶ 132-33, 136). However, none of those events involved revelations or disclosures of UnumProvident’s allegedly unlawful and/or fraudulent claims handling practices. Consequently, the Azzolini and Bernstein Complaints are completely devoid of any specific allegation of causation with respect to that class of alleged misrepresentations. Nowhere do Plaintiffs allege any negative market reaction relating either to the CorTS certificates or Unum-Provident’s own securities in the wake of events which revealed UnumProvident’s allegedly unlawful claims handling practices and corresponding scheme to understate claim reserves and overstate income. Moreover, Plaintiffs do not even so much as present an explicit conclusive allegation the price of UnumProvident’s securities or the CorTS certificates dropped significantly once the truth became known. Accordingly, at least with respect to-the alleged claims handling misrepresentations, Plaintiffs’ causation allegations are even more lacking than those the Court previously found barely adequate in the Glickenhaus Complaint. Glickenhaus at least described market reactions to two events bearing a tangential relation to the alleged claims handling misrepresentations (ie., the October 2, 2002 UnumProvident press release announcing anticipated negative media reports regarding claims handling practices and the company’s April 25, 2003 announcement it was increasing claim reserves by $454 million). Accordingly, the Court finds Plaintiffs’ loss causation allegations insufficient to survive a motion to dismiss with respect to their claims against Defendants premised upon alleged claims handling misrepresentations. See Dura, 125 S.Ct. at 1631-34; D.E. & J., 133 Fed.Appx. at 997. Plaintiffs do, however, present the following allegations regarding market reaction to revelations and/or disclosures of UnumProvident’s allegedly inappropriate accounting for its investments: (1) Unum-Provident’s stock price dropped 37 percent in the two days following the company’s February 5, 2003 announcement it would be taking an additional $93 million in write-downs on its impaired assets for the fourth quarter of 2002 and that the SEC had inquired about the timing and amount of the company’s recording of other-than-temporary losses on its junk bond investments (Azzolini Complaint at ¶ 128; Bernstein Complaint at ¶ 132); (2) the CorTS Trust II price fell from $22.81 to $17.20 in the" }, { "docid": "16365120", "title": "", "text": "all of the allegations in each case to determine whether they collectively establish a strong inference of scienter”); Hel-wig, 251 F.3d at 550-51 (“In this wash of allegations, ‘motive’ and ‘opportunity’ are simply recurring patterns of evidence. We decide cases on facts, not labels.”). However, the particular facts which tend to show motive and opportunity in a given case, or a lack of such particular facts, are certainly relevant to determining whether the complaint demonstrates a strong inference of scienter. Id. As such, the absence of any obvious pecuniary, personal, or business motivation on the part of Defendants in attempting to defraud investors in CorTS certificates issued by the SSB Defendants makes any inference of scienter marginally weaker. Nonetheless, the absence of a particularized motive for defrauding Plaintiffs is not so strong a factor as to diminish the force of the allegations of a deliberate scheme to deny legitimate claims, understate claim reserves, and overstate income. Accordingly and for the same reasons set forth in § III.B.2.a, the Court finds Plaintiffs have adequately alleged facts supporting a strong inference of scienter with respect to the alleged claims handling misrepresentations. By the same token though, the general lack of particularized motive only serves to weaken Plaintiffs’ scienter allegations with respect to the alleged investment misrepresentations. Moreover, the allegations regarding UnumProvi-dent’s accounting for investments in the Azzolini and Bernstein complaints provide considerably less detail than those in the Glickenhaus Complaint. Therefore, the Court finds the reasoning set forth in § III.B.2.b even stronger within the context of the Azzolini and Bernstein complaints and concludes Plaintiffs have failed to adequately plead scienter with respect to Defendants’ alleged investment misrepresentations. B. Causation With respect to causation, Defendants again incorporate the arguments advanced previously in connection with their motion to dismiss the Glickenhaus Complaint, but additionally argue Plaintiffs have failed to allege transaction causation (UnumProvident Response at 6-11). As stated previously by the Court, a securities fraud plaintiff must adequately allege facts demonstrating both (1) that but for the defendant’s fraudulent statement or omission, the plaintiff would not have entered into the transaction for the" }, { "docid": "16365124", "title": "", "text": "2002 UnumProvident press release announcing anticipated negative media reports regarding claims handling practices and the company’s April 25, 2003 announcement it was increasing claim reserves by $454 million). Accordingly, the Court finds Plaintiffs’ loss causation allegations insufficient to survive a motion to dismiss with respect to their claims against Defendants premised upon alleged claims handling misrepresentations. See Dura, 125 S.Ct. at 1631-34; D.E. & J., 133 Fed.Appx. at 997. Plaintiffs do, however, present the following allegations regarding market reaction to revelations and/or disclosures of UnumProvident’s allegedly inappropriate accounting for its investments: (1) Unum-Provident’s stock price dropped 37 percent in the two days following the company’s February 5, 2003 announcement it would be taking an additional $93 million in write-downs on its impaired assets for the fourth quarter of 2002 and that the SEC had inquired about the timing and amount of the company’s recording of other-than-temporary losses on its junk bond investments (Azzolini Complaint at ¶ 128; Bernstein Complaint at ¶ 132); (2) the CorTS Trust II price fell from $22.81 to $17.20 in the days following the February 5 announcement and the ensuing placement of UnumProvident’s credit rating on review for possible downgrade by Standard & Poor’s (Azzolini Complaint at ¶ 128); (3) UnumProvident’s stock dropped by more than 50 percent over a two-day period following Moody’s March 7, 2003 indication it would likely downgrade the company’s debt rating to “junk” level and UnumPro-vident’s March 10, 2003 statement addressing the concerns expressed by Moody’s and the SEC (Azzolini Complaint at ¶¶ 129-33; Bernstein Complaint at ¶ 133-36); and (4) “the CorTS price plummeted to an all-time low of $13.69” on March 11, 2003 following the same events (Azzolini Complaint at ¶¶ 129-33; Bernstein Complaint at ¶ 133-36). These four allegations refer to the same two general events or revelations cited in the Glicken-haus Complaint and fail to present any allegation with respect to the market’s reaction to UnumProvident’s March 24, 2003 announcement it had resolved the SEC inquiry by restating its financial results from 2000, 2001, and 2002 to reflect investment losses of $29.1 million or the filing of" }, { "docid": "16365139", "title": "", "text": "assert a roughly analogous standing argument in their reply brief (see UnumProvi-dent Reply at 12-14). Although the Court notes this standing argument may ultimately be dispositive of Plaintiffs’ claims against the UnumProvident Defendants, see Ontario Public Serv. Employees Union Pension Trust Fund, v. Nortel Networks Corp., 369 F.3d 27, 32-34 (2d Cir.2004) (holding stockholders do not have standing to sue under § 10(b) and Rule 10b-5 where entity whose stock they purchased is negatively impacted by material misstatements of another company), the Court will decline to address this issue since the argument was raised for the first time in a reply brief and Plaintiffs were not given a meaningful opportunity to respond. . As an aside, this allegation is in itself a bit suspect in that all of the allegedly material misstatements identified in the Azzolini and Bernstein complaints occurred after Plaintiffs allege they purchased their CorTS certificates. . The Court notes the Bernstein Complaint appears to contain a mistake in this regard, citing the 37 percent drop as occurring on March 10, 2003, rather than in the days immediately following UnumProvident’s February 5, 2003 announcement (see Bernstein Complaint at II132). In light of its ultimate conclusion the complaint should be dismissed the Court will give Bernstein the benefit of the doubt and assume this is a mere typographical mistake. However, this error does not advance her cause. . Bernstein does not present a similar allegation with respect to the CorTS I certificates in her complaint." }, { "docid": "16365026", "title": "", "text": "— March 24, 2003) and who were damaged thereby” (Azzolini Complaint at ¶ 196) asserting, inter alia, causes of action against Defendants UnumProvi-dent, Chandler, and Greving under § 10(b) of the 1934 Act and Rule 10b-5 promulgated thereunder (id. at ¶¶ 205-16) and against Defendants Chandler and Greving under § 20(a) of the 1934 Act (id. at ¶¶ 217-20). and (3) The Azzolni Complaint is 84 pages in length and contains 237 numbered paragraphs. It is organized and structured topically as follows: Nature of the Action (¶¶ 1-13); Jurisdiction and Venue (¶¶ 14-16); Parties (¶¶ 17-27); Substantive Allegations (¶¶ 28-43); UnumPro-vident’s Misconduct (¶¶ 44-89); False and Misleading Statements During the Class Period (¶¶ 90-125); The Truth Emerges (¶¶ 126-43); UnumProvident Defendants’ Scienter (¶¶ 144-60); Material Misrepresentations and Omissions in the CorTS II Prospectus (¶¶ 161-95); Class Action Allegations (¶¶ 196-201); Applicability of Presumption of Reliance: Fraud-on-the-Market Doctrine (¶¶ 202-03); No Safe Harbor (¶ 204); First Claim for Relief (¶¶ 205-16); Second Claim for Relief (¶¶ 217-20); Third Claim for Relief (¶¶ 221-36); and Prayer for Relief (¶ 237). Bernstein seeks to represent herself and a putative class “consisting of all those who purchased or otherwise acquired CorTS Certificates pursuant or traceable to an initial public offering on or about January 31, 2001 through March 24, 2003, inclusive (the ‘Class Period’) and who were damaged thereby” (Bernstein Complaint at ¶ 34) asserting, inter alia, causes of action against Defendants UnumProvident, Chandler, and Greving under § 10(b) of the 1934 Act and Rule 10b-5 promulgated thereunder (id. at ¶¶ 205-15) and against Defendants Chandler and Greving under § 20(a) of the 1934 Act (id. at ¶¶ 216-19). The Bernstein Complaint is 89 pages in length and contains 219 numbered paragraphs. It is organized and structured topically as follows: Nature of the Action (¶¶ 1-15); Jurisdiction and Venue (¶¶ 16-19); Parties (¶¶ 20-33); Plaintiffs Class Action Allegations (¶¶ 34-39); Substantive Allegations: The CorTS I IPO (¶¶ 40-51); Substantive Allegations: UnumProvident’s Fraud (¶¶ 52-139); Substantive Allegations: Scienter Allegations with Respect to Defendant UnumProvident (¶¶ 140-57); Substantive Allegations: Violations by SSB and SPC (¶¶ 158-89);" }, { "docid": "16365129", "title": "", "text": "claims asserted by Lead Plaintiff Glickenhaus & Co. based upon alleged misrepresentations relating to Defendant UnumProvident Corp.’s claims handling practices; 1. DENIES Lead Plaintiff Glickenhaus & Co.’s request to amend its pleadings (Court File No. 117, p. 44 n. 27). 2. In the case of Azzolini v. CorTS Trust II for Provident Financial Trust I, et al., No. 1:03-CV-1003, the Court hereby; A. GRANTS “The UnumProvident Defendants’ Motion to Dismiss the Consolidated Amended Complaints” (Court File No. 13); B. GRANTS the “Motion of Defendant J.Harold Chandler to Dismiss the Consolidated Amended Complaints” (Court File No. 14); and C. DISMISSES the first and second claims for relief asserted by Plaintiff Silvio Azzolini in the “Consolidated Amended Class Action Complaint for Violations of Federal Securities Laws” (Court File No. 11). 3. In the case of Bernstein v. CorTS Trust for Provident Financing Trust I, et al., No. 1:03-CV-1005, the Court hereby: A. GRANTS “The UnumProvident Defendants’ Motion to Dismiss the Consolidated Amended Complaints” (Court File No. 23); B. GRANTS the “Motion of Defendant J. Harold Chandler to Dismiss the Consolidated Amended Complaints” (Court File No. 25); and C. DISMISSES Count IV and Count V of Plaintiff Harriet Bernstein’s “Amended Class Action Complaint for Violations of Federal Securities Laws” (Court File No. 18). SO ORDERED. . The Court notes the group of entities and persons listed in the preceding sentence does not comprise the entire panoply of defendants named in the above-captioned actions. Specifically, the Azzolini and Bernstein actions include claims against a number of additional defendants whom the Court will refer to in this -memorandum as “the SSB Defendants” (see infra at 4). However, because the instant Memorandum and Order addresses only those motions to dismiss filed by UnumProvident and persons currently or formerly affiliated with that company, the Court will use the general shorthand \"Defendants” to refer to these parties. .The consolidated cases were: Knisley v. Un-umProvident Corp., et at, No. l:03-CV-49; Rasner v. UnumProvident Corp., et al., No. l:03-CV-54; Elias v. UnumProvident Corp., et al., No. 1:03-CV~81; Stolz v. UnumProvident Corp., et al., No. l:03-CV-84; and Miller v. UnumProvident Cotp.," }, { "docid": "16365125", "title": "", "text": "days following the February 5 announcement and the ensuing placement of UnumProvident’s credit rating on review for possible downgrade by Standard & Poor’s (Azzolini Complaint at ¶ 128); (3) UnumProvident’s stock dropped by more than 50 percent over a two-day period following Moody’s March 7, 2003 indication it would likely downgrade the company’s debt rating to “junk” level and UnumPro-vident’s March 10, 2003 statement addressing the concerns expressed by Moody’s and the SEC (Azzolini Complaint at ¶¶ 129-33; Bernstein Complaint at ¶ 133-36); and (4) “the CorTS price plummeted to an all-time low of $13.69” on March 11, 2003 following the same events (Azzolini Complaint at ¶¶ 129-33; Bernstein Complaint at ¶ 133-36). These four allegations refer to the same two general events or revelations cited in the Glicken-haus Complaint and fail to present any allegation with respect to the market’s reaction to UnumProvident’s March 24, 2003 announcement it had resolved the SEC inquiry by restating its financial results from 2000, 2001, and 2002 to reflect investment losses of $29.1 million or the filing of the company’s 2002 Form 10-K on March 31, 2003, which was to make all of the adjustments and disclosures requested by the SEC. However, even assuming these allegations are sufficient to allege causation, the Court must still dismiss Plaintiffs’ claims relating to the alleged investment misrepresentations for failure to adequately plead scienter. C. Conclusion Because Plaintiffs have failed to adequately allege scienter with respect to their securities fraud claims against the UnumProvident Defendants based upon alleged investment misrepresentations and because Plaintiffs have failed to adequately allege causation with respect to any such claims premised upon alleged claims handling misrepresentations, the Court will GRANT Defendants’ motions to dismiss in their entirety (Azzolini Court File Nos. 13, 14; Bernstein Court File Nos. 23, 25). VI. CONCLUSION For the reasons stated in this memorandum, the Court will DENY Defendants’ motion requesting oral argument (Case No. l:03-CV-49, Court File No. 131), GRANT IN PART and DENY IN PART Glickenhaus’ motion to strike (Case No. l:03-CV-49, Court File No. 115), GRANT Glickenhaus’ motion for judicial notice (Case No. l:03-CV-49, Court" }, { "docid": "17424177", "title": "", "text": "the documents, the Court strikes these exhibits. Lovelace v. Software Spectrum, 78 F.3d 1015, 1018 (5th Cir.1996) (noting that although court may take judicial notice of documents filed with the SEC, “[s]uch documents should be considered only for the purpose of determining what statements the documents contain, not to prove the truth of the documents’ contents”) Plaintiffs raise concerns regarding Defendants’ attachment of the additional exhibits 8, 10, 13, 15, 16, 17, 18, 20, 22-24. Although the complaint references these exhibits, Plaintiffs contend that Defendants inappropriately offer them to resolve issues in dispute. Plaintiffs argue that this is particularly egregious since the complaint references a number of these documents to show the falsity of their contents. Since the Court finds that the Plaintiffs’ complaint cites these documents, it will not strike them. However, the Court remains cognizant that when considering a motion to dismiss it must accept Plaintiffs’ factual allegations as true and draw inferences in Plaintiffs’ favor. Having addressed this preliminary issue, the Court now considers the Defendants’ motion to dismiss. IV. ANALYSIS OF MOTION TO DISMISS - With their motion to dismiss, Defendants assert that Plaintiffs’ claims under the 1934 Securities and Exchange Act fail to meet the heightened pleading requirements of the PSLRA and Rule 9(b). Specifically, Defendants argue that Plaintiffs fail to allege that Defendants made any actionable misstatements or omissions and fail to allege facts raising a strong inference of scienter. Additionally, Defendants urge that Plaintiffs’ 1933 Securities Act claims (1) fail to satisfy the pleading requirements of Fed.R.Civ.P. 9(b), (2) are raised by a party without standing, and (3) are barred by the applicable statute of limitations. The Court addresses these arguments in turn. A. Plaintiffs’ § 10(b) / Rule 10b-5 Claim In their first count of the complaint, Plaintiffs allege violations of § 10(b) and Rule 10b-5. To state a claim under § 10(b) of the Securities and Exchange Act of 1934 and Rule 10b-5, a plaintiff must allege, in connection with the purchase or sale of securities, the misstatement or omission of a material fact, made •with scienter, upon which the plaintiff" }, { "docid": "16365137", "title": "", "text": "their merit”), V 46 (\"sole and transparent objective of these meetings was to find a reason to terminate a claim”), ¶ 47 (\"the only intent was to find some way, if possible, to terminate these claims”), ¶ 52 (Defendant Mohney \"instituted his methodology for denying or terminating proper claims throughout the company”), ¶ 53 (“Provident was improperly denying claims to inflate the Company’s financial results, and ... these fraudulent practices were instituted Company-wide after the Merger”)). . By this statement the Court is not intending to forbid Glickenhaus from making any future motions to amend. The Court is only stating that it will not approve of any such motion whose sole purpose is to avoid or circumvent this decision. If a motion to amend has some other purpose, then the Court would address that motion when and if made. . Again, Chandler has filed a separate motion by relies upon the UnumProvident Defendants' motion in all respects so the Court will not discuss his motion separately. . The Court will continue to use the general shorthand \"Defendants,” but wishes to again clarify it only intends to refer to those defendants involved in the instant motions (i.e., UnumProvident and those individuals currently or formerly affiliated with that company). The Court does not intend to encompass the SSB Defendants through the use of this nomenclature. . Since the Azzolini and Bernstein plaintiffs have joined with each other in all filings related to the instant motions to dismiss, the Court will refer to them collectively as \"Plaintiffs” within § IV of the instant Memorandum. . Plaintiffs devote several pages of their brief in opposition to arguing their complaints adequately plead Defendants’ alleged misrepresentations were made \"in connection with” the purchase or sale of the CorTS certificates, as required for liability under § 10(b) and Rule 10b-5 (Plaintiffs' Response at 16-19). However, Defendants do not appear to raise this issue in their motions to dismiss. Rather, they claim the lack of any direct connection between them and the issuance and sale of the CorTS certificates weighs against Plaintiffs’ allegations of scienter. Defendants do, however," } ]

[ { "docid": "10637092", "title": "", "text": "next preceding the commencement of the action shall be commenced in the county of this state in which at least one of the parties has been a bona fide resident for not less than 30 days next preceding the commencement of the action.” . Only the two year waiting period contained in § 247.05(3) is before this court today. We imply no view of the validity of other waiting periods and residence requirements contained in Ch. 247 or specifically of the thirty day waiting period and the residence requirements contained in § 247.05(3). Cf. Shapiro v. Thompson, 394 U.S. 618, 63.8 n. 21, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). . Compare § 247.05(3) with § 247.22 where time is only prima faeie evidence of domicile. . See Restatement (Second), Conflict of Laws, pp. 103-6 (Proposed Official Draft, Part I, Hay 2, 1967) for a discussion of evidence and domicile. . A domicile is established by physical presence in the state with an intent to make it one’s home. Wh^n an individual moves into a new state, the burden of proof is upon him to show that a new domicile has been established. Such proof consists of evidence of participation in the new community which is indicative of a member of the community as opposed to merely a visitor of the community. See generally Restatement, supra n. 4, at §§ 11-23. . Normally a state, in order to demonstrate compliance with the equal protection mandate of the Constitution, need only show that the classification bears a reasonable relationship to a permissible state objective. However, when a classification penalizes the exercise of a fundamental right, the state must demonstrate a “compelling interest.” In the instant case, alternatively, the fundamental right of “access to the divorce court,” Boddie, supra, is being penalized by a two year bar upon new residents, or the fundamental right to “travel,” Shapiro, supra, is being penalized by the denial to new residents of access to the divorce courts. . The state “absent a countervailing state interest of overriding significance” * * “may not, consistent with the obligations" } ]

[ { "docid": "10352759", "title": "", "text": "a permanent change in citizenship in 1976. This may be especially true in light of the fact that the Plaintiff and his wife separated two months before this suit was filed. Recognizing that a change in domicile could possibly — in theory — be effected in an instant, the court is still unable to place much weight in the Plaintiff’s subjective statements. Given the Plaintiff’s prior actions, his marriage to Ms. Brumbelow must be evaluated only in light of all the objective factors that surround it; most significantly, the fact that the Plaintiff took no actions toward cementing a permanent residence and, additionally, his marriage ended only two months after it began. The court cannot base a finding of citizenship solely on this Plaintiff’s subjective statement that his domicile changed on wedding day number three. C. The objective facts — or perhaps, lack of them — lead to the inescapable conclusion that the Plaintiff did not change his citizenship: he did not change his driver’s license; register to vote; enroll in a club, fraternal, or religious organization; join a union; own property; pay taxes; get a telephone or list a number; or even bank in Texas. His sole reason for residing in Texas was employment and the court finds that, Edna Brumbelow notwithstanding, the Plaintiff did not intend to establish a permanent residence in Texas. This is not the first time that a move undertaken for employment purposes, standing alone as the sole objective fact, has been held insufficient to establish a change in citizenship. See, e. g., Spanos v. Skouras Theatres Corporation, 235 F.Supp. 1 (S.D.N.Y.1964), aff’d 364 F.2d 161 (2nd Cir. 1966), cert. denied 385 U.S. 987, 87 S.Ct. 597, 17 L.Ed.2d 448 (1966). This suit is therefore dismissed without prejudice. The Plaintiff remains free to bring suit in any state court — be it in Texas or any place else — in which he can get personal jurisdiction over the Defendant. SO ORDERED, this 17th day of January, 1978. . Act of Sept. 24, 1789, 1 Stat, 73. The diversity provision in the present code is found" }, { "docid": "3358590", "title": "", "text": "California state court. III. THE CITIZENSHIP OF BEN LIPPS A. Legal Standard For diversity purposes, the citizenship of an individual is determined by the location of his or her domicile. Rodriguez-Diaz v. Sierra-Marbinez, 853 F.2d 1027, 1030 (1st Cir.1988). “A person’s domicile is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Id. (internal quotation marks and citation omitted). In other words, it is “the place where one is present and intends to stay.” Rodriguez v. Señor Frog’s de la Isla, Inc., 642 F.3d 28, 32 (1st Cir.2011). A person can have only one domicile at a time, and until a new domicile is affirmatively established elsewhere, domicile is presumed to continue. See Padilla-Mangual v. Pavia Hosp., 516 F.3d 29, 31-32 (1st Cir.2008) (citing Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979)). A change in domicile requires (1) presence in the new domicile and (2) an intent to remain there. Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 50 (1st Cir.1992). Among the factors relevant to determining this intent include: ‘(the place where civil and political rights are exercised, taxes paid, real and personal property (such as furniture and automobiles) located, driver’s and other licenses obtained, bank accounts maintained, location of club and church membership and places of business or employment.” Id. (citations omitted). Defendants, as the party invoking diversity jurisdiction, have the burden of proving by a preponderance of the evidence the domicile of Mr. Lipps as of the time the underlying actions were filed. See Señor Frog, 642 F.3d at 32; Padillar-Mangual, 516 F.3d at 31. B. Analysis The objective facts, as well as Mr. Lipps’ declarations of intent, tell the following story. Prior to 1996, Mr. Lipps was a citizen of California, where Freseni-us USA, of which he was the CEO, was headquartered. In 1996, when Fresenius USA merged with National Medical Care, Mr. Lipps purchased an apartment in Massachusetts and moved there with his wife. In 2003, Mr. Lipps’ wife returned to California to reside" }, { "docid": "23641838", "title": "", "text": "1299 (11th Cir.2001) (citing Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1260-61 (11th Cir.2000)). Further, the party invoking the court’s jurisdiction bears the burden of proving, by a preponderance of the evidence, facts supporting the existence of federal jurisdiction. See Scoggins 727 F.2d at 1026. Diversity jurisdiction exists over a controversy between citizens of different states. See 28 U.S.C. § 1332(a). Citizenship is equivalent to “domicile” for purposes of diversity jurisdiction. See Hendry v. Masonite Corp., 455 F.2d 955, 955 (5th Cir.1972). “A person’s domicile is the place of ‘his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom....’” Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.1974), cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70 (1974) (quoting Stine v. Moore, 213 F.2d 446, 448 (5th Cir.1954)). Furthermore, a change of domicile requires “[a] concurrent showing of (1) physical presence at the new location with (2) an intention to remain there indefinitely....” Id. In making its findings, the district court looked at several specific factors. McCormick was the majority owner and chief executive officer of Bay Point Yacht and Country Club in Panama City, Florida. McCormick owned additional real property in Panama City. McCormick had a Florida driver’s license, and was registered to vote in Bay County, Florida. In addition, he only paid Florida income taxes. The district court found that the plaintiff had a clear intent of being a Florida resident, despite the fact that his personal physician was located in Birmingham and that he and his wife may have owned property in Alabama, Florida, and England. In light of the foregoing, we find that the district court did not err in finding that the plaintiff is and was at the time of filing suit, a resident citizen of Florida. Because McCormick’s citizenship is diverse from Aderholt’s, the district court properly exercised subject-matter jurisdiction over this case. B. STATUTE OF LIMITATIONS The second issue on appeal is whether the lower court erred in denying Appellant’s motion for judgment as a matter of" }, { "docid": "13320988", "title": "", "text": "and a domicile once established persists until a new one is acquired. Mitchell v. U. S., 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1874); Janzen v. Goos, 302 F.2d 421, 425 (8th Cir., 1962). 5. To acquire a domicile of choice the law requires the physical presence of a person at the place of the domicile claimed, coupled with the intention to remain there. Mitchell v. U. S., 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1874); Spurgeon v. Mission State Bank, 151 F.2d 702, 706 (8th Cir., 1945), cert. den. 327 U.S. 782, 66 S.Ct. 682, 90 L.Ed. 1009. 6. Mere absence from a fixed home does not effect a change of domicile. Welsh v. American Surety Co. of New York, 186 F.2d 16, 17 (5th Cir., 1951). 7. Declarations of intention to establish domicile in a particular locality may be negatived by other declarations and inconsistent acts. Welsh v. American Surety Co. of New York, 186 F.2d 16, 18 (5th Cir., 1951). 8. Plaintiff has failed to establish by a preponderance of the evidence that he is a citizen of Massachusetts. 3. Discussion. The fact of plaintiff’s residence in Massachusetts at the time this action was commenced and the statements of him and his wife to the effect that Brook-line was their permanent address, absent other facts, would support a finding of Massachusetts citizenship. However, physical presence alone is not determinative of domicile and self-serving declarations of intent may be negatived by other acts inconsistent with such pronouncements. The facts which tend to negative plaintiff’s claimed abandonment of his Michigan residence must be weighed against such pronouncements. In the usual circumstance, a student who pursues a course of study away from home does not substitute for his domicile his place of residence while attending school, although it is in his power to effect such a change. In the instant case, plaintiff and his wife retained their Michigan motor vehicle operator’s licenses and plaintiff secured a Michigan registration for his 1962 model vehicle when he was “home” in Michigan for the Christmas holiday. Plaintiff and his" }, { "docid": "13320986", "title": "", "text": "and plans to move to Detroit in June, 1963. 4. Plaintiff is registered to vote in the City of Flint, Michigan where he last voted by absentee ballot cast in Detroit in 1960. Plaintiff has not registered to vote in Brookline, Massachusetts because upon making inquiry for this purpose he was advised that his actual term of residence was insufficient. 5. Plaintiff secured a Michigan motor vehicle registration for his 1962 model car in December, 1962 as plaintiff stated in his deposition, page 9, “that is when I was home for Christmas vacation.” 6. Plaintiff has a Michigan driver’s license and in January, 1963, plaintiff secured a Massachusetts driver’s license which, as he explained, was for the purpose of complying with Massachusetts law. 7. Plaintiff stated that he regards Brookline, Massachusetts as his permanent address until June of 1963, when he will have concluded his course of training. 8. Plaintiff’s wife has a Michigan driver’s license which was renewed in December of 1962. This license bears the address of her father-in-law in Flint, Michigan. She does not have a Massachusetts driver’s license. 9. Plaintiff’s wife is registered to vote in Flint, Michigan and has never registered to vote in Massachusetts. 10. Plaintiff’s wife stated that she considered Boston, Massachusetts to be her permanent residence. 2. Conclusions of Law. 1. The existence of diversity of citizenship is to be determined as of the time the suit is commenced. Smith v. Sperling, 354 U.S. 91, footnote 1, p. 93, 77 S.Ct. 1112, p. 1113, 1 L.Ed.2d 1205 (1957). 2. Where a plaintiff’s allegations of jurisdictional facts are challenged by defendant, plaintiff bears the burden of establishing the allegations by a preponderance of the evidence. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1935); Janzen v. Goos, 302 F.2d 421, 424 (8th Cir., 1962) ; Schuckman v. Rubenstein, 164 F.2d 952, 955 (6th Cir., 1947). 3. Citizenship and domicile are synonymous for the purposes of diversity jurisdiction. McClanahan v. Galloway, 127 F.Supp. 929, 930 (N.D.Calif.1955). 4. One may have only one domicile at a time" }, { "docid": "1897332", "title": "", "text": "in more than one state but can be domiciled, for diversity purposes, in only one.” Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991). The question of citizenship “is a mixed question of law and fact.” Id. Courts have identified many factors, none of which by itself is controlling, that are relevant to determine a party’s domicile. Objective indicia of intent to change domiciliary include: [t]he place where civil and political rights are exercised, taxes paid, real and personal property (such as furniture and automobiles) located, driver’s and other licenses obtained, bank accounts maintained, location of club and church membership and places of business or employment. Lundquist, 946 F.2d at 11 (quoting 1 Moore’s Federal Practice ¶ 0.743.3 at 788 (2d ed.1991)). Statements of intent are accorded minimal weight measured against these objective factors. Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 556 (5th Cir.1985). Plaintiff filed this complaint on February 6, 1997. For purposes of diversity jurisdiction, citizenship is determined as of the date of the initiation of the lawsuit. See, e.g., Freeport-McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426, 111 S.Ct. 858, 112 L.Ed.2d 951 (1991); Media Duplication Servs., Ltd. v. HDG Software, Inc., 928 F.2d 1228, 1236 (1st Cir.1991). Therefore, the only relevant factors here are those in existence at the time plaintiff filed this suit on February 6, 1997. Since Plaintiffs physical presence in Ohio is uncontested/ the only remaining issue to determine domiciliary is whether Plaintiff has present clear and convincing evidence of his intent to remain in Ohio indefinitely. We must look at objective indicia to determine intent. During the relevant period, Plaintiff had a checking bank account in Ohio, and had applied for a visa credit card listing Ohio as his permanent address. Plaintiff began studying full time in Ohio in September 1996. In 1996, Plaintiff registered to vote in Ohio, and voted in the 1996 Ohio general elections. In January 1997, Plaintiff obtained a permanent driver’s license and identification card from Ohio, and his university notified him that it had approved his request for Ohio residency for tuition" }, { "docid": "5075114", "title": "", "text": "3612 at 530-531; Bank One, Texas, N.A. v. Montle, 964 F.2d 48 (1st Cir.1992); Lundquist v. Precision Valley Aviation Inc., 946 F.2d 8 (1st Cir.1991). The crucial time for diversity purposes is the moment of the filing. Koenigsberger v. Richmond Silver Mining Co., 158 U.S. 41, 15 S.Ct. 751, 39 L.Ed. 889 (1895); Bank One Texas N.A v. Montle, 964 F.2d 48 (1st Cir.1992). Once jurisdiction has been challenged, the party involving diversity has the burden of establishing it. Bank One, 964 F.2d at 50. Further “[T]here is ... a presumption in favor of continuing domicile.” (Id.) II. Plaintiff contends that having completed D.D. 2058 (Department of Defense form 2058, State of Legal Residence Certificate on August 18,1994) prior to the filing of the complaint on December 28, 1994 is “unmistakable” evidence of his new domicile. (Opposition by Plaintiff Docket No. 47). However, an examination of the document reveals that its purpose is “for determining the correct state of legal residence for purposes of withholding income taxes from the military.” The form further forewarns the subscriber that intention of a change of domicile must be followed by the subscriber’s compliance with other criteria such as: (1) registering to vote, (2) purchasing residential property, (3) titling and registering automobiles, (4) notifying the state of the previous domicile of change of domicile, (5) preparing a new last will and testament indicating the new state of legal residence. The form states that “generally, unless these five steps have been taken, it is doubtful that your state of legal residence/domicile has changed.” Plaintiff made the following statement at his deposition: “Well since I went into the Army I have been paying taxes to the government of Puerto Rico and when I claimed any tax refunds they would practically ... what they would refund to me would be practically minimum. I then found myself in a situation when too much money was being withheld from me and then in Miami you don’t pay taxes, since I reside there. And my plans are that when I retire I will live there and change [sic] my residence.”" }, { "docid": "1897331", "title": "", "text": "by a later change in domicile. Lundquist, 946 F.2d at 10; Valedón Martínez, 806 F.2d at 1132; Hawes, 598 F.2d at 701; Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 49-50 (1st Cir.1992). It is the party seeking to invoke the federal court’s jurisdiction by asserting change in domicile that has the burden of proving such a change by clear and convincing evidence. See Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 243 (2d Cir.1984). In other words, a Plaintiff maintains his original domicile until he can prove by clear and convincing evidence that he has changed that domicile. Therefore, in his case, we consider Plaintiff’s domicile to be in Puerto Rico unless he can show by clear and convincing evidence that he has changed his domicile. Domicile generally requires two elements: 1) physical presence in a state, and 2) the intent to make such a state a home. Rodríguez-Díaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988). “The relevant standard is ‘citizenship,’ ie. ‘domicile,’ not mere residence; a party may reside in more than one state but can be domiciled, for diversity purposes, in only one.” Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991). The question of citizenship “is a mixed question of law and fact.” Id. Courts have identified many factors, none of which by itself is controlling, that are relevant to determine a party’s domicile. Objective indicia of intent to change domiciliary include: [t]he place where civil and political rights are exercised, taxes paid, real and personal property (such as furniture and automobiles) located, driver’s and other licenses obtained, bank accounts maintained, location of club and church membership and places of business or employment. Lundquist, 946 F.2d at 11 (quoting 1 Moore’s Federal Practice ¶ 0.743.3 at 788 (2d ed.1991)). Statements of intent are accorded minimal weight measured against these objective factors. Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 556 (5th Cir.1985). Plaintiff filed this complaint on February 6, 1997. For purposes of diversity jurisdiction, citizenship is determined as of the date of the initiation of the lawsuit. See," }, { "docid": "11507549", "title": "", "text": "Goos, 302 F.2d 421, 424 (8th Cir.1962); Lefkowitz v. Lider, 443 F.Supp. 352, 355 (D.Mass.1978). A party’s citizenship for diversity purposes is the place of domicile. Hawes v. Club Ecuestre el Comandante, 598 F.2d 698, 702 (1st Cir.1979). Two elements are necessary to establish domicile: 1) physical presence in the claimed domicile, and 2) an intent to remain there indefinitely. Sun Printing & Publishing Assn. v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 698, 48 L.Ed. 1027 (1904); Miller Press Factory, Inc. v. Douglas, 385 F.Supp. 874 (D.P.R. 1974). Though no minimum period of physical presence is required, Hawes, supra at 701, both elements must exist simultaneously to establish domicile; one element alone is insufficient. Sun Printing, supra; see also, Honneus v. Donovan, 93 F.R.D. 433, 434, fn. 1 (D.Mass.1982); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2nd., sect. 3613. Once the elements are met a new domicile is established instantaneously. A plaintiff who claims to have changed his domicile in favor of a new one has a particularly heavy burden of establishing citizenship, since the law presumes that a domicile once established continues unless and until a new domicile is acquired. Anderson v. Watt, 138 U.S. 694, 11 S.Ct. 449, 34 L.Ed. 1078 (1891); Holmes v. Sopuch, 639 F.2d 431 (8th Cir.1981); Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954 (5th Cir.1966); Wright, Miller & Cooper, supra, sect. 3612. The reason for this presumption is to solve the problem of locating an individual who has clearly abandoned his present domicile but either has not arrived at a new one or has arrived without formulating the intent to stay. Wright, Miller & Cooper, supra, sect. 3612. This presumption may also apply in the case of an American citizen living abroad temporarily. In our Opinion and Order of October 1, 1985, we relied on plaintiff’s statements in his affidavit of his desire to move to California and his intent to remain there indefinitely. In the affidavit plaintiff testifies that he and his wife had decided to settle in California because they liked the area, his wife" }, { "docid": "8361848", "title": "", "text": "City, either on the boat or in storage. Wendy, although not legally a minor, is still completely dependent upon her parents for support. Her parents pay for her tuition, living expenses, car, and insurance. Wendy concluded by saying that she considered herself a Florida resident because, in a nutshell, home was where her parents lived. Gary Mitchell also testified concerning the move to Panama City by him and his wife. Mr. Mitchell stated that it was his and Mrs. Mitchell’s intention to relocate to Panama City prior to Wendy’s injuries, and that it is their intention to remain there now. Mr. Mitchell is registered to vote in Florida, has a Florida driver’s license, has Florida tags on his ear, and considers himself to be a Florida resident. Mr. Mitchell is in the costume jewelry business, and travels throughout Georgia, Florida, and South Carolina plying his wares to pharmacies and gift shops. All stock and property owned by Mr. Mitchell in connection with his business has been relocated to Panama City and is warehoused there. Although he still owns a warehouse in Macon, it is to be sold this month. The family home in Macon, Georgia sold in October 1995, and Mr. Mitchell stated that his family has no other house or home in this state. II. LAW Congress has granted this court the jurisdiction to hear civil action between citizens of different states where the matter in controversy exceeds the sum or value of $50,000, exclusive of interests and costs. 28 U.S.C. § 1332(a)(1). Because the existence of federal jurisdiction is dependent upon the facts as they exist when the complaint is filed, Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989), the proper focus for determining “diversity” is the parties’ citizen ship when suit is commenced. Maryland Cas. Co. v. W.R. Grace and Co., 23 F.3d 617, 622 (2d Cir.1993). The party seeking to invoke federal diversity jurisdiction bears the burden of establishing diversity by a preponderance of the evidence. Sheehan v. Gustafson, 967 F.2d 1214 (8th Cir.1992). “Citizenship” and “domicile” are synonymous for" }, { "docid": "13320987", "title": "", "text": "does not have a Massachusetts driver’s license. 9. Plaintiff’s wife is registered to vote in Flint, Michigan and has never registered to vote in Massachusetts. 10. Plaintiff’s wife stated that she considered Boston, Massachusetts to be her permanent residence. 2. Conclusions of Law. 1. The existence of diversity of citizenship is to be determined as of the time the suit is commenced. Smith v. Sperling, 354 U.S. 91, footnote 1, p. 93, 77 S.Ct. 1112, p. 1113, 1 L.Ed.2d 1205 (1957). 2. Where a plaintiff’s allegations of jurisdictional facts are challenged by defendant, plaintiff bears the burden of establishing the allegations by a preponderance of the evidence. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1935); Janzen v. Goos, 302 F.2d 421, 424 (8th Cir., 1962) ; Schuckman v. Rubenstein, 164 F.2d 952, 955 (6th Cir., 1947). 3. Citizenship and domicile are synonymous for the purposes of diversity jurisdiction. McClanahan v. Galloway, 127 F.Supp. 929, 930 (N.D.Calif.1955). 4. One may have only one domicile at a time and a domicile once established persists until a new one is acquired. Mitchell v. U. S., 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1874); Janzen v. Goos, 302 F.2d 421, 425 (8th Cir., 1962). 5. To acquire a domicile of choice the law requires the physical presence of a person at the place of the domicile claimed, coupled with the intention to remain there. Mitchell v. U. S., 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1874); Spurgeon v. Mission State Bank, 151 F.2d 702, 706 (8th Cir., 1945), cert. den. 327 U.S. 782, 66 S.Ct. 682, 90 L.Ed. 1009. 6. Mere absence from a fixed home does not effect a change of domicile. Welsh v. American Surety Co. of New York, 186 F.2d 16, 17 (5th Cir., 1951). 7. Declarations of intention to establish domicile in a particular locality may be negatived by other declarations and inconsistent acts. Welsh v. American Surety Co. of New York, 186 F.2d 16, 18 (5th Cir., 1951). 8. Plaintiff has failed to establish by a" }, { "docid": "22018122", "title": "", "text": "prior domicile for another. Until the new one is acquired, the old one remains. * * * “Declarations of intention to establish residence in a particular locality are of bourse to be given full and fair consideration, but like other self serving declarations may lack persuasiveness or be negatived by other declarations and inconsistent acts.” (186 F.2d 17-18.) Any inference that could be drawn from the plaintiff’s activities tending to show an intent to establish a legal domicile in Louisiana is clearly negatived by her own specific declarations and inconsistent acts. Her stated purpose in moving to Baton Rouge was to bring this suit here. She did, in fact, file the suit only eight days after moving to Baton Rouge. Her present intention, as stated by her, is to “stay in Baton Rouge until I see this— lawsuit over.” Neither this stated purpose nor the declared intention considered separately or together, constitute a sufficient showing of intent to effect a change of domicile from Atlanta, Georgia to Baton Rouge, Louisiana. Since a new domicile has not been acquired, the old one remains. See also, Mas v. Perry, 489 F.2d 1396 (CA5 1974). Plaintiff argues that her moving to Baton Rouge was not done to create diversity because there would still be diversity if it were determined that plaintiff is a resident of Florida, Georgia, or Louisiana. This, of course, is true and would remain true if there are no indispensable parties who are citizens of the state of her domicile who have not yet been joined as parties to this suit. The question before us now, however, is not one of jurisdiction, but one of venue. Title 28, United States Code, Section 1391(a) provides: “(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim ' arose.” Since, for the purposes of this venue statute, residence means domicile, King v. Wall & Beaver Street Corp., supra; Smith v. Murchison, supra, and since" }, { "docid": "18218220", "title": "", "text": "a hearing on this issue on February 2,1971. Citizenship and domicile are synonymous for purposes of determining diversity jurisdiction. Ellis v. Southeast Construction Co., 260 F.2d 280, 281 (C.A. 8, 1958); Marks v. Marks, 75 F. 321, 324 (C.C.D.Tenn.1896). Diversity of citizenship must exist both at the time of filing the original complaint and at the time of filing the petition to remove. Gibson v. Bruce, 108 U.S. 561, 2 S.Ct. 873, 27 L.Ed. 825 (1883). Any person, sui juris, may make a bona fide change of domicile or citizenship at any time. Stine v. Moore, 213 F.2d 446, 448 (C.A. 5, 1954). However, one may have only one domicile at a time and once established it persists until a new one is acquired. Desmare v. United States, 93 U.S. 605, 610, 23 L.Ed. 959 (1877). Once acquired it is presumed to continue until it is shown to have been changed. Mitchell v. United States, 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1874). To acquire a domicile of choice, the law requires the physical presence of a person at the place of domicile claimed, coupled with the intention of making it his present home. When these two facts occur, the change in domicile is instantaneous. Intention to live permanently at the claimed domicile is not required. If a person capable of making his choice honestly regards a place as his present home, the motive prompting him is immaterial. Spurgeon v. Mission State Bank, 151 F.2d 702, 705-706 (C.A. 8, 1945), cert. den. 327 U.S. 782, 66 S.Ct. 682, 90 L.Ed. 1009 (1946); Cooper v. Galbraith, Fed.Cas. No. 3,193 (C.C.D.Pa.1819). Further, the burden of showing removability, where diversity jurisdiction is challenged, is upon the party seeking to remove. Puritan Fashions Corp. v. Courtaulds Ltd., 221 F.Supp. 690, 696 (S.D.N.Y.1963); Thomas v. General Electric Co., 207 F.Supp. 792, 798 (W.D.Ky.1962); see Industrial Electronics Corp. v. Cline, 330 F.2d 480, 482 (C.A. 3, 1964). In order to apply the above law and to determine Charles’ citizenship and domicile, it is necessary to narrate in some detail the course of his career" }, { "docid": "22242244", "title": "", "text": "meet his burden of production. He testified at his deposition that he lived at the Shangri La Hotel in Hong Kong “on and off since ... September or October [of 1984]”, and that when he was not traveling he stayed at that hotel. He also stated his company was located in Hong Kong. Domicile, however, requires both physical presence at a given location and an intent to remain there indefinitely. The evidence shows that Moss traveled throughout the Far East between September 1984 and February 1985, stayed at various hotels, and was not accompanied by his wife or family; he did not rent an apartment in Hong Kong until his wife and two adult children joined him there in January 1985; he returned to Los Angeles for Thanksgiving in November 1984 and for the Chinese New Year in February, 1985 and stayed at the Beverly Hills Property on those occasions; his California driver’s license expired in September 1984 and was renewed for a four-year period; his wife continued to live in the Beverly Hills Property and work in Beverly Hills, California until she joined him in Hong Kong in January, 1985. Moss failed to present substantial evidence to establish (a) that he was physically located in Hong Kong on November 1, 1984, when the complaint in this case was filed, or (b) that he intended to remain there indefinitely. See, e.g., Carter v. McConnel, 576 F.Supp. 556 (D.Nev.1983) (passim; finding no change in domicile); Howze v. Hartman, 508 F.Supp. 13 (E.D. Tenn.1980) (same). We hold that Moss failed to . burden of production. He did not ps substantial evidence to support his con. tion that his domicile had changed froi. California to Hong Kong by November 1, 1984. The district court therefore erred in dismissing the case for lack of subject matter jurisdiction. REVERSED AND REMANDED." }, { "docid": "23177392", "title": "", "text": "1, 1 L.Ed.2d 1205 (1957); Blakemore, 789 F.2d at 618. For purposes of diversity jurisdiction, the terms “domicile” and “citizenship” are synonymous. Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988); C. Wright, A. Miller & E. Cooper, 13B Federal Practice and Procedure § 3612, at 526 (2d ed. 1984). To establish domicile, an individual must both be physically present in the state and have the intent to make his home there indefinitely. Blakemore, 789 F.2d at 618; J. Moore, J. Lucas, H. Fink, D. Weckstein & J. Wicker, 1 Moore’s Federal Practice ¶ 0.74[3.-l] (1990). Intention to remain there permanently, however, is not necessary. Blakemore, 789 F.2d at 618. Once an individual has established his domicile, he remains domiciled there until he legally acquires a new domicile. C. Wright, A. Miller & E. Cooper, supra, § 3612, at 535. With these principles in mind, we search the record as a whole to determine whether the Yeldells met their burden on the jurisdictional issue. A long-established rule states that “[i]t is sufficient to support the jurisdiction of a federal court that the facts requisite to confer it appear in any part of the record, or are the necessary consequences of the facts stated in the pleadings or the findings of the court.” Myers v. Hettinger, 94 F. 370, 372 (8th Cir.1899). The complaint clearly alleged that the Yeldells were residents of Wilmot, Arkansas, that the Tutts were residents of Baton Rouge, Louisiana, and that Southern Capitol was a Louisiana corporation with its principal place of business in Baton Rouge. The answer filed by the Tutts and Southern Capitol stated that they were without knowledge or information as to the truth of the allegations of the Yeldells’ residence and therefore denied those allegations, but admitted the allegations concerning the Tutts’ and Southern Capitol’s residences. The answer asserted that Arkansas lacked personal jurisdiction over the Tutts and Southern Capitol, but did not raise the issue of subject-matter jurisdiction. The evidence presented at trial was as follows: The Yeldells lived in Louisiana while employed by the Tutts but moved to Little Rock, Arkansas" }, { "docid": "18674397", "title": "", "text": "if he is, for some unforeseen reason, unable to run’ because he has not formulated any present intentions with regard to those eventualities.” It is noted that he does not say that his wife has moved into the city limits of Knoxville. The Court must assume that she continues to live in her home outside Knoxville where, as previously indicated, she has lived for many years. The presumption is that the domicile of a married man is the place where his family resides. Coury v. State, 213 Tenn. 454, 374 S.W.2d 397 (1964). The seminal Tennessee case on this subject is Pearce v. State, 33 Tenn. 44 (1853). Another recognized rule is that the domicile of the wife ordinarily follows the domicile of the husband. In this present age, it is difficult for the Court to understand, in light of the record in this case, how Mr. Hofferbert could establish a legal residence within the city limits of Knoxville while his wife continues to live in Knox County, or outside the city limits of Knoxville. It is recognized that a man may have two residences. However, a man may not establish a second residence for the purpose of running for office and claim that is his domicile. See Coke v. Coke, 560 S.W.2d 631, 633 (Tenn.1978). The burden of proof is upon the plaintiff to establish his legal residence by the preponderance of the evidence. Considering the facts that plaintiff and his family have lived in Knox County for many years; that Mr. Hofferbert only recently moved into the James Agee Apartments in the Fort Sanders community largely inhabited by transient University students; that Mrs. Hofferbert has not moved into those apartments and no intimation has been made that she intends to move into said apartments in the foreseeable future; and that all of plaintiff’s actions indicating a change of residence were taken contempo raneously with the filing of this lawsuit, the Court must conclude that plaintiff has failed to establish a legal residence within the city limits of Knoxville. Since we have previously noted in other orders and memoranda" }, { "docid": "4094119", "title": "", "text": "I found that plaintiff could state a diversity claim under § 1332(a)(2). II. Does this court have subject matter jurisdiction under 28 U.S.C. § 1332(a)(1)? Section 1332(a)(1), 28 U.S.C. § 1332(a)(1) gives the federal courts original jurisdiction over “citizens of different states.” “[Diversity of citizenship must be shown to have existed at the time of commencement of the action in state court and at the time of the filing of the petition for removal.” Kerstetter v. Ohio Casualty Insurance Co., 496 F.Supp. 1305, 1307 (E.D.Pa.1980). For diversity to exist, plaintiff must be shown to have been not only an American citizen, but a citizen of a particular state. See: Van Der Schelling v. U.S. News & World Report, 213 F.Supp. 756, 762 (E.D.Pa.), aff'd 324 F.2d 956 (3d Cir.1963), cert. denied, 377 U.S. 906, 84 S.Ct. 1166, 12 L.Ed.2d 177 (1964) (American domiciled abroad not a state citizen for purposes of § 1332(a)(1)). State citizenship is equated with domicile. Williamson v. Ostenton, 232 U.S. 619, 34 S.Ct. 442, 58 L.Ed. 758 (1914); S.S. Dadzie v. Leslie, 550 F.Supp. 77, 79, n. 3 (E.D.Pa.1982); “A person’s domicile is that place where he has his true, fixed and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom.” Michelson v. Exxon Research and Engineering Co., 578 F.Supp. 289, 290 (W.D.Pa.), aff'd 745 F.2d 47 (3d Cir.1984). “[CJitizenship is not necessarily lost by protracted absence from home, where the intention to return remains.” Butler v. Pollard, 482 F.Supp. 847, 851 (E.D.Okl.1979). Similarly, absence from one’s domicile because of overseas employment does not constitute a change of domicile. Maple Island Farm v. Bitterling, 196 F.2d 55, 58 (8th Cir.), cert. denied, 344 U.S. 832, 73 S.Ct. 40, 97 L.Ed. 648 (1952); White v. All America Cable & Radio, Inc., 642 F.Supp. 69, 72 (D.Puerto Rico 1986); Bell v. Bell, 326 Pa.Super. 237, 473 A.2d 1069, 1077 (1984). For a change in domicile to occur, the person whose citizenship is at issue must reside in the new domicile and “have no fixed and definite intent to" }, { "docid": "18218221", "title": "", "text": "physical presence of a person at the place of domicile claimed, coupled with the intention of making it his present home. When these two facts occur, the change in domicile is instantaneous. Intention to live permanently at the claimed domicile is not required. If a person capable of making his choice honestly regards a place as his present home, the motive prompting him is immaterial. Spurgeon v. Mission State Bank, 151 F.2d 702, 705-706 (C.A. 8, 1945), cert. den. 327 U.S. 782, 66 S.Ct. 682, 90 L.Ed. 1009 (1946); Cooper v. Galbraith, Fed.Cas. No. 3,193 (C.C.D.Pa.1819). Further, the burden of showing removability, where diversity jurisdiction is challenged, is upon the party seeking to remove. Puritan Fashions Corp. v. Courtaulds Ltd., 221 F.Supp. 690, 696 (S.D.N.Y.1963); Thomas v. General Electric Co., 207 F.Supp. 792, 798 (W.D.Ky.1962); see Industrial Electronics Corp. v. Cline, 330 F.2d 480, 482 (C.A. 3, 1964). In order to apply the above law and to determine Charles’ citizenship and domicile, it is necessary to narrate in some detail the course of his career for many years. Charles was born in Puerto Rico on August 22, 1922. He moved with his parents to Brooklyn, New York in 1925. In 1930, his family, including Charles, moved and established their home in the State of New Jersey. Charles finished high school in New Jersey in 1940. From 1940 to 1942, he attended Columbia University and from 1942 to 1945 served in the United States military forces at various posts in this country and abroad. Following his tour of military service in 1945, Charles attended the University of Ohio from which he graduated in 1948 with an electrical engineering degree. He immediately joined the family business firm (Unanue & Sons, Inc.) in New York but continued to reside with his parents in New Jersey until 1951 when he was married. In 1951 and 1952, Charles and his first wife resided at various apartments in New Jersey while he continued working in New York in the family business. From 1952 to about the middle of 1954, Charles resided and worked in Puerto Rico," }, { "docid": "217527", "title": "", "text": "by asserting change in domicile that has the burden of proving such change by clear and convincing evidence.”); see also White v. All America Cable and Radio, Inc., 642 F.Supp. 69, 72 (D.Puerto Rico 1986). The factors relevant to determining a person’s domicile include 1) the person’s place of voting; 2) the location of the person’s real property; 3) the state issuing the person’s drivers license; 4) the state where the person’s bank accounts are maintained; 5) the state where the person has a club or church membership; and 6) the state where the person is employed. Bank One, Texas, N.A., 964 F.2d at 50. In this case, Plaintiff alleges that she was domiciled in New York on February 9, 2000, the date in which she filed her Complaint. Defendants, who are all domiciliaries of Puerto Rico, challenge this Court’s jurisdiction by asserting that Plaintiffs domicile on the date that the Complaint was filed was Puerto Rico. Plaintiff countered Defendants’ evidence with documents illustrating that she has been receiving medical treatment in New York; her sworn affidavit stating that she resides in New York; received medical treatment there and intends to remain there; a New York voter registration card showing that Plaintiff registered to vote on February 22, 2000; a New York State drivers license issued in May 2000, approximately three-months after she filed her complaint; and excerpts from her deposition transcript in which she states that she intends to remain in New York. However, remaining in a new residence in order to obtain medical care does not amount to a change in domicile for diversity of citizenship purposes. See Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3613 at p. 547. The Court further notes that a party’s bare declaration of domicile, which is self-serving in nature, is accorded little weight when in conflict with objective facts. Kressen v. National Ins. Co., 648 F.Supp. 1165, 1167 (D.Puerto Rico 1986) (Pieras J.) (citing Freeman v. Northwest Acceptance Corp., 754 F.2d 553 (5th Cir.1985)). We now turn to the facts which are undisputed. Plaintiff does not own any" }, { "docid": "14768369", "title": "", "text": "This court has explained : To acquire a domicil of choice, the law requires the physical presence of a person at the place of the domicil claimed, coupled with the intention of making it his present home. When these two facts concur, the change in domicil is instantaneous. Intention to live permanently at the claimed domi-cil is not required. If a person capable of making his choice honestly regards a place as his present home, the motive prompting him is immaterial. Janzen v. Goos, 302 F.2d 421, 425 (8th Cir. 1962); quoting with approval from Spurgeon v. Mission State Bank, 151 F.2d 702, 705-706 (8th Cir. 1945), cert. denied, 327 U.S. 782, 66 S.Ct. 682, 90 L.Ed. 1009 (1946). Prior to and at the time of the accident, Pahlow permanently resided in Alliance. Five days after Pahlow filed his initial complaint, he told Veteran’s Administration personnel at Hot Springs that he wanted to return home to Alliance. When the Denver Probate Court referred him to the Veteran’s Hospital at Fort Lyons, Colorado, for custody and care, Pahlow listed his permanent home as Alliance. In view of these specific facts and in light of the record as a whole, the self-serving and conclusional statement contained in Pahlow’s retainer agreement with his Denver attorney that “[c]lient states that he is a resident and citizen of the State of Colorado” pales into insignificance. A determination of citizenship for purposes of diversity is a mixed question of law and fact, but mainly fact, which may not be set aside by an appellate court unless clearly erroneous. See Russell v. New Amsterdam Casualty Company, 325 F.2d 996 (8th Cir. 1964); Janzen, supra, 302 F.2d 421. The appellant fails to demonstrate that the trial court clearly erred in holding that Pahlow had acquired no citizenship in Colorado and that he remained domiciled in and a citizen of Nebraska at all times material to this litigation. We next turn to appellant’s contention that Conservator Rogers’ Colorado citizenship requires reversal. The trial court expressly found that Pahlow’s Denver counsel “manufactured” federal jurisdiction by initiating, controlling and directing Pahlow’s" } ]

[ { "docid": "22895588", "title": "", "text": "termination of the litigation in the district court. Compare Jeteo, supra. Accordingly, the order dismissing Tokai-Seiki is appealable. We now turn to the merits of this appeal. II. Personal jurisdiction over Tokai-Seiki. Personal jurisdiction over Tokai-Seiki is urged pursuant to Texas’ “Long-Arm” Statute, Article 2031b, Vernon’s Tex. Rev.Civ.Stat.Ann. Normally, there is a two-step procedure in determining whether a state jurisdictional statute confers jurisdiction over a non-resident defendant in a federal diversity suit. First, it must be determined that the defendant is in fact amenable to service under the state statute; state law of the forum controls this question. Jetco, supra; Barrett v. Browning Arms Co., 433 F.2d 141 (5th Cir. 1970). Second, if the state statute has been complied with, then it must be determined whether assertion of jurisdiction over the defendant comports with federal due process requirements. Jetco, supra; Barrett, supra. Tokai-Seiki below argued that the first step of this test was not met because the Oswalts and Scripto had failed to make all necessary allegations to permit process to be served under Art. 2031b. Tokai-Seiki also argued that the second step was not satisfied because of lack of necessary minimum contacts to comply with due process. In its Order dismissing Tokai-Seiki, the district court expressly did not reach the question of sufficiency of process and ruled only on the constitutional issue. As this is the only question raised on appeal, we turn immediately to the due process question. The facts contained in the record pertinent to this issue are few and can be quickly stated. Tokai-Seiki manufactured the “Catch 98” cigarette lighter which allegedly malfunctioned and injured Mrs. Oswalt. Tokai-Seiki is a foreign corporation, incorporated under the laws of the Country of Japan. It has its principal place of business in Yokahama, Japan. There is no evidence in the record that Tokai-Seiki has now, or ever has had, any office, place of business, servant, employee or director in either the United States or Texas. There is no evidence in the record that Tokai-Seiki has ever done business in the United States or Texas, or has ever done business" } ]

[ { "docid": "5656032", "title": "", "text": "the price of EGT shares therefore was inflated during that period and that they relied to their detriment on this false and misleading information. Discussion On a motion to dismiss under Rule 12(b)(2) for lack of personal jurisdiction, the plaintiffs bear the burden of showing jurisdiction. The standard applicable to plaintiffs’ burden depends upon the procedural context in which the jurisdictional challenge is raised. Where, as here, no discovery has taken place, the plaintiffs need make only a prima facie showing of jurisdiction “by pleading in good faith, see Fed. R.Civ. P. 11, legally sufficient allegations of jurisdiction” Section 27 of the Exchange Act allows the exercise of personal jurisdiction to the limits of the Due Process Clause of the Fifth Amendment. The question whether due process permits an exercise of jurisdiction requires “an analysis consisting of two components: the ‘minimum contacts’ test and the ‘reasonableness’ inquiry.” The former looks to “whether the defendant has certain minimum contacts [with the forum] ... such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” The latter “asks ... whether it is reasonable under the circumstances of the particular case” to assert personal jurisdiction. Under the minimum contacts analysis, contacts with the forum may confer two types of jurisdiction — specific and general. Specific jurisdiction exists when a forum “exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.” A court’s general jurisdiction, on the other hand, “is based on the defendant’s general business contacts with the forum state and permits a court to exercise its power in a case where the subject matter of the suit is unrelated to those contacts.” In this case, plaintiffs now assert only that the Court has specific jurisdiction. Their theory is that actions of Ho and Melco “had direct and foreseeable effects ... in the United States and [that] they knew or had good reason to know that their actions would have [such] effects here.” This assertion rests on the following premises. Plaintiffs begin with the fact" }, { "docid": "14048653", "title": "", "text": "contacts” between the foreign state and the forum “such that 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) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)); Shapiro, 930 F.2d at 1020. The “minimum contacts” test essentially involves four separate inquiries: (1) the extent to which defendants availed themselves of the privileges of American law; (2) the extent to which litigation in the United States would be foreseeable; (3) the inconvenience to defendants in litigating in the United States; and (4) the countervailing interest of the United States in hearing the suit. Texas Trading, 647 F.2d at 314. Bearing in mind the permissive standard governing jurisdictional questions on a motion to dismiss, see Seetransport, 989 F.2d at 580, I find that the Treuhand had sufficient “minimum contacts” to satisfy due process requirements. When determining whether “minimum contacts” exist, a distinction is made between “specific” jurisdiction and “general” jurisdiction. Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.), cert. denied, — U.S. -, 117 S.Ct. 508, 136 L.Ed.2d 398 (1996). Specific jurisdiction exists when “a State exercises personal jurisdiction over a defendant in a suit arising out of or related to defendant’s contacts with the forum.” Id. at 567-68 (quotations omitted). General jurisdiction, on the other hand, is based on “the defendant’s general business contacts with the forum state and permits a court to exercise its power in a case where the subject matter of the suit is unrelated to those contacts.” Id. at 568 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16 & nn. 8-9, 104 S.Ct. 1868, 1872-73 & nn. 8-9, 80 L.Ed.2d 404 (1984)). Because general jurisdiction is not related to the events giving rise to the suit, courts “impose a more stringent minimum contacts test, requiring the plaintiff to demonstrate the defendant’s ‘continuous and systematic general business contacts.’” Id. at 568 (citing Helicopteros, 466 U.S. at 416," }, { "docid": "9361479", "title": "", "text": "Corp. v. Suzuki Motor Co., 575 F.Supp. 1412 (E.D.Wis.1983); Hoffman v. United Telecommunications, Inc., 575 F.Supp. 1463 (D.Kan.1983). While such a test may be appropriate under a state statute requiring a non-resident defendant to be “present” or “doing business” in the forum state, e.g., Luckett v. Bethlehem Steel Corp., 618 F.2d 1373 (10th Cir.1980) (applying the Oklahoma long-arm statute), it is not a necessary analysis under the Utah long-arm statute or under the constitutional due process standards of International Shoe. E.g., Energy Reserves, 460 F.Supp. at 490. In Energy Reserves, the plaintiff sought a declaratory judgment for breach of contract. Both defendants were Nevada corporations. The parent corporation, Superi- or Oil, had its principal place of business in Texas and did substantial business in Kansas. Its wholly owned subsidiary, Superior Overseas, had its principal place of business in London, England. Superior Overseas, the subsidiary, moved to dismiss the action against it for lack of jurisdiction. The plaintiff in that case urged the court to pierce the corporate veil between the two affiliated defendant corporations, thus exercising jurisdiction over the absent subsidiary organization. Defendants responded that the corporations scrupulously maintained their separate corporate identities and that there were no facts supporting a finding necessary to pierce the corporate veil. Further, Superior Overseas argued that it lacked any physical contacts with the forum sufficient to render jurisdiction. In denying Superior Overseas’ motion to dismiss, Judge Theis of the United States District Court for the District of Kansas distinguished between corporate law theo ries and jurisdictional theories relevant to a parent corporation and its wholly owned subsidiary. Id. at 483. Beginning with the doctrine of Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634 (1925), Judge Theis traced the history of jurisdictional analysis over related corporations and concluded that later Supreme Court decisions qualified Cannon, directing the inquiry away from “doing business” and “presence” in the forum to a minimum contacts analysis. Cannon predated International Shoe by twenty years. At the time it was decided, a plaintiff could invoke jurisdiction over a non-resident parent corporation only" }, { "docid": "5957058", "title": "", "text": "as well. Accordingly, plaintiffs have failed to make a prima facie showing of personal jurisdiction over Afiwa under New York law, and the claims against it are dismissed. E. Due Process Because the Court has determined that Ahmed is amenable to service of process under New York law on the fraudulent conveyance claims in Counts One and Two, it now must determine whether assertion of personal jurisdiction in the circumstances comports with the requirements of due process. The due process test for personal jurisdiction has two related components: the “minimum contacts” inquiry and the “reasonableness” inquiry. The Court first must determine whether the defendant has sufficient contacts with the forum state to justify the exercise of personal jurisdiction. Then, if minimum contacts are found, the Court undertakes the “reasonableness” inquiry and considers whether “the assertion of personal jurisdiction ... is reasonable under the circumstances of the particular case.” 1. Minimum Contacts For purposes of the minimum contacts inquiry, “a distinction is made between ‘specific’ jurisdiction and ‘general’ jurisdiction.” “Specific jurisdiction exists when ‘a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum’; a court’s general jurisdiction, on the other hand, is based on the defendant’s general business contacts with the forum state and permits a court to exercise its power in a case where the subject matter of the suit is unrelated to those contacts.” The minimum contacts test for specific jurisdiction is less stringent than that for general jurisdiction. Here, plaintiffs’ fraudulent conveyance claims arise directly out of Ahmed’s transaction of business in New York through corporate agents. The more lenient specific jurisdiction standard therefore applies. To establish the minimum contacts necessary to justify specific jurisdiction, the plaintiff must show that the defendant “purposefully availed” himself of the privilege of doing business in New York and that the defendant could foresee being “haled into court” in the state. Here, plaintiffs have made a pri-ma facie showing that Ahmed deliberately engaged in a significant business transaction in New York when he caused Sphinx Rock and Satinwood to" }, { "docid": "22567396", "title": "", "text": "1026. This latter inquiry requires a determination of whether a district court’s exercise of personal jurisdiction over a defendant with minimum contacts is “reasonable” in light of the circumstances surrounding the case. See id. Although distinct, the two components of our “due process inquiry are related inasmuch as both originated in the idea that a court cannot subject a person to its authority where the maintenance of the suit would offend ‘traditional notions of fair play and substantial justice.’ ” Metropolitan Life, 84 F.3d at 568 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Moreover, an interplay exists between the two components, such that, “depending on the strength of the defendant’s contacts with the forum state, the reasonableness component of the constitutional test may have a greater or lesser effect on the outcome of the due process inquiry.” Id. The First Circuit has aptly described this interplay as follows: “We think ... that the reasonableness prong of the due process inquiry evokes a sliding scale: the weaker the plaintiffs showing on [minimum contacts], the less a defendant need show in terms of unreasonableness to defeat jurisdiction. The reverse is equally true: an especially strong showing of reasonableness may serve to fortify a borderline showing of [minimum contacts].” Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 210 (1st Cir.1994); accord Burger King, 471 U.S. at 477, 105 S.Ct. 2174. With these principles in mind, we proceed to the present appeal. A. Minimum Contacts 1. Purposeful Availment The first step in our minimum con- r tacts analysis requires us to determine whether the 'evidence Plaintiff presented to the district court demonstrated that Defendants purposely availed themselves of the privilege of conducting business in Kansas. Purposeful availment requires actions by the Defendant which “create a substantial connection with the forum state.” Asahi, 480 U.S. at 109, 107 S.Ct. 1026. Thus, courts have been unwilling to allow states to assert personal jurisdiction over foreign defendants where the defendant’s presence in the forum arose from the unilateral acts of someone other than the defendant. World-Wide Volkswagen," }, { "docid": "11575930", "title": "", "text": "can be exercised over defendant Webster. A federal court exercises specific jurisdiction when the suit arise out of or is related to the defendant’s contacts with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 1872 n. 8, 80 L.Ed.2d 404 (1984). The exercise of specific jurisdiction may result from a “single, substantial act directed toward the forum.” Command-Aire v. Ontario Mechanical Sales & Serv., 963 F.2d 90, 93 (5th Cir.1992). Because the tort occurred within the state of Texas, and the tort is the gravamen of plaintiffs action, defendant’s “contact” with the State is related to the cause of action. Once the “contacts” prong of the personal jurisdiction test is satisfied, the court must determine whether an exercise of jurisdiction would offend “traditional notions of fair play and substantial justice.” Asahi Metal Indus. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92 (1987) (plurality). Asserting jurisdiction over defendant Webster would not offend traditional notions of fair play. He traveled to Texas on several occasions to reach the platform and rig. He utilized many of the State’s amenities in conjunction to traveling to his employment. He worked a mere three miles (or less) off the Texas coast. He contracted with Oryx, a corporation with a Texas office and substantial business in Texas, and had continuous, daily contact with the corporation’s Texas office. While it is arguable whether these contacts would be sufficient to obtain general jurisdiction, in terms of due process it is disingenuous for defendant to argue he had no idea he could be haled into a Texas court for his activities. IV. Recommendation Defendant’s Motion to Dismiss should be denied. V. Objections Within ten (10) days after receipt of the magistrate judge’s report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained in this report within ten days after service shall bar an aggrieved party from de novo review" }, { "docid": "21956782", "title": "", "text": "plaintiff must show that (1) the defendant had “ ‘minimum contacts’ with the forum state such that defendant should ‘reasonably anticipate being haled into court there,’ ” and (2) “ ‘the exercise of jurisdiction comport[s] with traditional notions of fair play and substantial[ Justice.’ ” The “ ‘constitutional touchstone’ of personal jurisdiction ‘remains whether the defendant purposefully established minimum contacts in the forum state.’ ” “In the Sixth Circuit, ‘the emphasis in the purposeful availment inquiry is whether the defendant has engaged in some overt actions connecting the defendant with the forum state.’ ” The minimum contacts prong is satisfied either through specific or general jurisdiction. Specific jurisdiction “subjects the defendant to ‘suit in the forum state only on claims that arise out of or relate to a defendant’s contacts with the forum.’ ” General jurisdiction is established “when a defendant has continuous and systematic contacts with the forum state sufficient to justify the state’s exercise of judicial power with respect to any and all claims.” Because specific personal jurisdiction exists in this case based on defendants’ contacts with Ohio, we do not address the requirements for general jurisdiction and the “national contacts” test. A. Purposeful Availment 1. Asahi The Supreme Court in Asahi Metal Indus. Co. v. Superior Court of Calif., 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) analyzed the purposeful availment test in detail. Asahi was a Japanese company that manufactured tire valves, which it sold to a Taiwanese manufacturer of tire tubes. Plaintiff was injured when the tire of his motorcycle equipped with an Asahi valve burst. He sued Asahi in California. The Court ruled that the district court lacked personal jurisdiction over Asahi, although no opinion commanded the support of a majority of the Court. Justice O’Connor’s plurality opinion held that the “placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the ‘forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum state, for example, designing the product for the market" }, { "docid": "8357660", "title": "", "text": "make it reasonable for the state to exercise such jurisdiction. Although Perkins does not treat qualification to do business in the forum state as a sufficient “contact” in and of itself to make a state’s assumption of jurisdiction reasonable, several courts have treated Perkins as the announcement of a “modern due process ‘presence’ test” under which statutory presence alone is sufficient. See Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d 406, 413 (9th Cir. 1977) and cases therein cited. We believe this is an overbroad reading. In Perkins the corporation sued had in essence moved its principal place of business to Ohio, the forum state, during the Japanese occupation of the Philippines. The “continuous and substantial” activities of the defendant in Ohio, therefore, were tantamount to principal operation in Ohio; the defendant corporation held directors’ meetings and effected stock transfers from its Ohio base of operations. Thus Comment (f) to Restatement 2d, § 47(2), supra, notes “such jurisdiction is particularly likely to exist in situations where the corporation’s principal place of business is in the State.” Suit in such a forum would probably supply the “minimum contacts” to satisfy due process. We doubt, however, that Perkins should be interpreted to support a general “presence” theory of jurisdiction over corporations: [The Perkins] case was decided under and seems to fall clearly within the test of reasonableness, although the unavailability of a more convenient forum was a significant factor in the decision. . Circumstances may exist in which a suit on a cause of action unrelated to activities within the forum would make it unreasonable and therefore unconstitutional to exercise jurisdiction over the defendant. Goodrich & Scoles, Conflict of Laws 94th ed. (1964), § 76 at 134. It should be noted . . . that the facts in Perkins were highly unusual. When sued, the defendant had its main office in the forum. Furthermore, if not amenable to suit in Ohio, it is unlikely that the defendant would be subject to suit any place while the occupation of the Philippines continued. Thus Perkins is not strong support for the" }, { "docid": "17704196", "title": "", "text": "personal jurisdiction to comport with due process, the plaintiff must show that: (1) the defendant purposefully availed itself of the benefits and protections of the forum state by establishing “minimum contacts” with that state such that it would reasonably anticipate being haled into court there; and (2) exercising jurisdiction over the defendant would not offend traditional notions of fair play and substantial justice. Id. at 1068 (citations omitted). The “minimum contacts” prong of the due process analysis can be met through contacts giving rise to either specific or general jurisdiction. Gundle Lining Constr. Corp. v. Adams Cnty. Asphalt, Inc., 85 F.3d 201, 205 (5th Cir.1996). “General personal jurisdiction is found when the nonresident defendant’s contacts with the forum state, even if unrelated to the cause of action, are continuous, systematic, and substantial.” Marathon Oil Co. v. A.G. Ruhrgas, 182 F.3d 291, 295 (5th Cir.1999) (citation omitted). In contrast, specific personal jurisdiction is established through the defendant’s contacts with the forum state arising from, or related to, the cause of action. Gundle, 85 F.3d at 205. III. ANALYSIS Watts moves to dismiss the claims against it pursuant to Rule 12(b)(2) for lack of personal jurisdiction. Watts argues that the Court lacks specific personal jurisdiction because it did not purposefully direct any activities at Texas, do any business in Texas, “or otherwise have any contact with Texas.” (Doc. 27, Mot. 8.) Similarly, Watts contends that general personal jurisdiction is improper because it has not had any, much less continuous and systematic, contacts with Texas. (Id.) Plaintiffs respond that the Court has both specific and general personal jurisdiction over Watts because of its commercial efforts to sell its products to businesses and consumer in Texas. (Doc. 65, Resp. 7-8.) The Court will examine, in turn, Plaintiffs’ positions on specific and general personal jurisdiction to determine whether they have met their burden of establishing a prima facie case. A. Specific Personal Jurisdiction The Fifth Circuit applies a three-step analysis to determine whether specific personal jurisdiction over a defendant exists: (1) whether the defendant purposely directed its activities toward the forum state or purposely availed" }, { "docid": "1546687", "title": "", "text": "arising under federal law where the defendant has contacts with the United States as a whole sufficient to satisfy due process concerns and the defendant is not subject to jurisdiction in any particular state.” Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 650 (5th Cir. 2004). Here, the dispute is whether Aker Subsea has sufficient contacts with the United States to satisfy due process. “The due process required in federal cases governed by Rule 4(k)(2) is measured with reference to the Fifth Amendment, rather than the Fourteenth Amendment. That is, Rule 4(k)(2) requires us to consider [Aker Subsea’s] contacts with the United States as a whole.... ” Submersible Sys., Inc. v. Perforadora Cent., S.A. de C.V., 249 F.3d 413, 420 (5th Cir. 2001). Thus, to assert general personal jurisdiction under Rule 4(k)(2), Aker Subsea’s contacts with the United States must be so continuous and systematic as to render it essentially at home in the United States. See id.; Daimler AG v. Bauman, — U.S. —, 134 S.Ct. 746, 761, 187 L.Ed.2d 624 (2014) (“[T]he inquiry under [Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) ] is not whether a foreign corporation’s in-forum contacts can be said to be in -some sense ‘continuous and systematic,’ it is whether that corporation’s ‘affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.’ ”). The proper forum for exercising general jurisdiction over a corporation is one in which a corporation is fairly regarded at home. Goodyear, 564 U.S. at 924, 131 S.Ct. 2846 (citing Brilmayer et al., A General Look at General Jurisdiction, 66 Tex. L. Rev. 721, 782 (1988) (identifying place of incorporation and principal place of business as paradigm bases for the exercise of general jurisdiction)). Both Aker Subsea’s place of incorporation and principal place of business are in Norway. Thus, to exercise general jurisdiction here, these facts must yield what the Supreme Court has described as the “exceptional ease.” The record contains no evidence that Aker Subsea had any business" }, { "docid": "690299", "title": "", "text": "(La.App. 1 Cir. 1976); Aucoin v. Hanson, 207 So.2d 834 (La.App. 3 Cir. 1968). Therefore, it is settled that if a business activity satisfies the requirements of due process, it ipso facto satisfies the “transacting business” requirements of the Louisiana Long-Arm Statute. The Due Process Clause of the Fourteenth Amendment of the United States Constitution limits the power of this Court in exercising jurisdiction over the person of a nonresident defendant. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). The Fifth Circuit Court of Appeals has recently referred to a two-prong test in determining whether a nonresident defendant is subject to suit consistent with due process. Thus, in Standard Fittings Co. v. Sapag, S.A., supra: “In Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974)24, [footnote omitted] this court described a two-part test for determining whether the exercise of in personam jurisdiction would deprive a defendant of due process: ‘First, “there must be some minimum contact with the state which results from an affirmative act of the defendant,” i. e., purposeful activity. Secondly, “it must be fair and reasonable to require the defendant to come into the state and defend the action.” ’ 495 F.2d at 494. In a footnote to this two-part test, the court identified several factors which various courts have used in determining whether the exercise of personal jurisdiction over a nonresident corporation comports with due process: the quantity of contacts, the nature and quality of the contacts, the connection of the cause of action to the contacts, the interest of the forum state in providing a forum for its residents, the convenience to the parties, and the nature and character of the business. ' 495 F.2d at 494 n. 17. Further explaining the first part of the two-prong test, the court in Product Promotions stated that purposeful activity of a defendant within the forum state implies that there must be some activity by the defendant and that it must ‘support an inference that" }, { "docid": "20295043", "title": "", "text": "forum. “A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Id. (emphasis added). This is a demanding standard, for the consequences for the defendant can be severe. Where a court has general jurisdiction over a defendant, that defendant may be called into that court “to answer for any alleged wrong, committed in any place, no matter how unrelated to the defendant’s contacts with the forum.” uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 426 (7th Cir.2010). The constitutional requirement for general jurisdiction therefore is “considerably more stringent” than that required for specific jurisdiction. Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 787 (7th Cir.2003), quoting United States v. Swiss American Bank, Ltd., 274 F.3d 610, 619 (1st Cir.2001). Courts look for “continuous and systematic general business contacts,” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), and inquire whether the business was “sufficiently substantial and of such a nature” as to permit the exercise of personal jurisdiction, Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447, 72 S.Ct. 413, 96 L.Ed. 485 (1952). A corporation is “essentially at home” both where it is incorporated and where its principal place of business is located. Goodyear, 131 S.Ct. at 2853-54. Beyond those easy cases, the best example of the “essentially at home” standard is found in Perkins, where the president and general manager of a Philippine mining corporation returned to his home in Ohio during the Japanese occupation of the Philippine Islands during World War II. While in Ohio, he maintained an office from which he conducted activities for the company. He kept company files and held directors’ meetings in the office, earned on correspondence related to the business, distributed salary checks drawn on two active Ohio bank accounts, engaged an Ohio bank to act as a transfer agent, and supervised policies dealing with the rehabilitation of" }, { "docid": "12545008", "title": "", "text": "and Donison all reside in Canada, and Defendants Acheson & Company and Connell Lightbody are both Canadian law firm's each with a principal place of business outside of Texas. Together, all Defendants assert that contacts with Texas are so limited as to justify dismissal pursuant to Fed. R. Civ. P. 12(b)(2), on the grounds that this Court lacks personal jurisdiction over them. In federal court, personal jurisdiction over a nonresident defendant is proper when: (1) the defendant is amenable to service of process under the forum state’s long-arm statute, and (2) the exercise of personal jurisdiction over the defendant is consistent with due process. See Jones v. Petty-Ray Geophysical Geo-source, Inc., 954 F.2d 1061, 1067 (5th Cir. 1992). The Texas long-arm statute authorizes service of process on a nonresident defendant if the defendant is determined to be “doing business” in Texas. See Tex. Civ. Prao. & Rem. Code Ann. § 17.042. Because the phrase “doing business” has been interpreted to reach as far as the United States Constitution permits, the jurisdictional inquiry under the Texas long-arm statute collapses into a single due process inquiry. See Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 418 (5th Cir.1993); Schlobohm v. Schapiro, 784 S.W.2d 355, 356-57 (Tex.1990). Whether the exercise of personal jurisdiction over Defendant is consistent with the Due Process Clause of the United States Constitution likewise requires a two-pronged inquiry. First, the Court must conclude that Defendant has “minimum contacts” with Texas. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Second, the Court must determine that requiring Defendant to litigate in Texas does not offend “traditional notions of fair play and substantial justice.” Id.; see also Wilson v. Belin, 20 F.3d 644, 647 (5th Cir.1994); Ruston, 9 F.3d at 418. The “minimum contacts” aspect of due process can be satisfied by either finding general jurisdiction or specific jurisdiction. See Wilson, 20 F:3d at 647. For general jurisdiction, the defendant’s contacts with the foreign state must be both “continuous and systematic” and “substantial.” See Helicópteros Nacionales de Colombia, S.A. v." }, { "docid": "16829026", "title": "", "text": "However, Butterfield’s website is insufficient to establish general jurisdiction in this case. We have used the Zippo sliding scale when a plaintiff argues that personal jurisdiction exists due to a defendant’s website. Revell, 317 F.3d at 470 (citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D.Pa.1997)). However, the sliding scale [I]s not well adapted to the general jurisdiction inquiry, because even repeated contacts with forum residents by a foreign defendant may not constitute the requisite substantial, continuous and systematic contacts required for a finding of general jurisdiction — in other words, while it may be doing business with Texas, it is not doing business in Texas. Id. at 471. In this case, at most, Butter-field’s website shows that Butterfield conducts business with Texas, not in Texas. Id. Because Butterfield is neither incorporated nor has its principal place of business in Texas, and because Ritter has not pleaded facts showing that Butterfield’s contacts with Texas are “continuous and systematic” enough to render it “at home” in Texas, general jurisdiction is improper. See Daimler, 134 S.Ct. at 761. Likewise, this court does not have specific jurisdiction over Butterfield. Specific jurisdiction “focuses on the relationship among the defendant, the forum, and the litigation.” Walden v. Fiore, — U.S. —, 134 S.Ct. 1115, 1121, 188 L.Ed.2d 12 (2014) (quotation marks and citations omitted). “For a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State.” Id. This circuit applies a three-step analysis for the specific jurisdiction inquiry: (1) whether the defendant has minimum contacts with the forum state, i.e., whether it purposely directed its activities toward the forum state or purposefully availed itself of the privileges of conducting activities there; (2) whether the plaintiffs cause of action arises out of or results from the defendant’s forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair and reasonable. Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir.2006) (citation omitted). If Ritter can successfully establish the first two prongs, then the burden shifts to Butterfield to" }, { "docid": "23028377", "title": "", "text": "before seeking bids from potential partners. Consequently, it appears from the evidence presented to date that Unocal’s negotiations with Total and MOGE were not necessary to the initiation of the project. Consequently, there is no evidence that Total would not have gone forward with the project but for its negotiations, agreements and consultations with Unocal in California. (iii) Reasonableness The bare existence of minimum contacts is not sufficient to allow a court to exercise personal jurisdiction over a defendant. The third step of the Ninth Circuit test requires a finding that assertion of jurisdiction is reasonable. In other words, once the court concludes that a defendant purposefully established minimum contacts with a forum state, and that the claims at issue arise from those contacts, the court must determine whether the assertion of personal jurisdiction would comport with traditional notions of “fair play and substantial justice.” International Shoe, 326 U.S. at 326, 66 S.Ct. 164. Plaintiffs evidence is insufficient to establish either purposeful availment or a but-for relationship between Total or its subsidiaries’ contractual relations with Unocal in the forum and plaintiffs’ claims. Plaintiffs therefore fail to establish specific jurisdiction, and the Court need not reach the third prong of the specific jurisdiction test. Consequently, the Court need not consider the Republic of France’s amicus brief for purposes of the inquiry into specific jurisdiction. b) General Jurisdiction Due process is satisfied “when in per-sonam jurisdiction is asserted over a nonresident corporate defendant that has ‘certain minimum contacts’ with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (quoting International Shoe, 326 U.S. at 326, 66 S.Ct. 154). “The Supreme Court has bifurcated this due process determination into two inquiries, requiring, first, that the defendant have the requisite contacts with the forum state to render it subject to the forum’s jurisdiction, and second, that the assertion of jurisdiction be reasonable.” Amoco Egypt Oil Co. v. Leonis Navigation Co., Inc., 1 F.3d 848," }, { "docid": "6915532", "title": "", "text": "responsible for payment to at least two Bolivian beneficiaries if the terms for payment under the whole life policy were met. According to the certificate from the Registry of Commerce, ALICO had at one time in the 1980’s a headquarters for its Bolivian operations in La Paz. Given the preceding undisputed contacts of ALICO with Bolivia, it would not be unfair or unreasonable to require ALICO to appear and defend in Bolivia against the plaintiff. ALICO maintained more substantial contacts with Bolivia than did the nonresident defendant in McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), where the Supreme Court approved the exercise of personal jurisdiction over the defendant insurance company which had only one contact with the forum, namely the mailing of an offer of reinsurance to a resident of that forum. The Court opined that the forum had a manifest interest in providing a means of effective redress for its residents when their insurers refuse to pay claims. It cannot be argued that Bolivia’s interest is any less manifest. Similarly, in Somportex, a United States defendant corporation argued that its contacts with the United Kingdom were insufficient to permit the British High Court from asserting personal jurisdiction. The defendant claimed that it maintained “no office or employee in England and transacts no business within that country.” The Third Circuit Court of Appeals, nevertheless, held that sufficient contacts were demonstrated by contract negotiations conducted on the defendant’s behalf by an “independent New York exporter,” who arguably was either an independent contractor or defendant’s agent. Clearly, ALI-CO’s contacts with Bolivia are more substantial than the defendant’s contacts with England in Somportex. The court concludes that the exercise of personal jurisdiction by the Bolivian courts over ALICO comports with United States notions of due process because ALICO had sufficient minimum contacts with Bolivia. 3. Proceedings Following Due Citation or Voluntary Appearance of Adversary Parties/Opportunity for a Full and Fair Trial Having concluded that the Bolivian courts could, consonant with restrictions of due process, exercise personal jurisdiction over ALICO, the court is required to" }, { "docid": "1555364", "title": "", "text": "arising out of misfeasance or nonfeasance. Conn.Gen.Stat. Section 33-411(c). In order to assert jurisdiction over a foreign corporation under subsection (c), the court must find a “nexus between the cause of action alleged and [the] conduct of the defendant within the state as specified in its various clauses.” Fuehrer v. Owens-Corning Fiberglas Corp., 673 F.Supp. 1150, 1154 (D.Conn.1986) (Blumenfeld, J.). However, subsection (c) does not specifically require that the corporation ever transact business in Connecticut. Id. B. Second Tier of Inquiry — Constitutional Requirement of “Minimum Contacts’’ The second tier of inquiry is whether Connecticut’s long-arm statute, once reaching a foreign corporation, exceeds the minimum contacts test required for constitutional due process. Under the due process standard a corporation must have “minimum contacts” with the forum state. See World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The contacts must be of a nature where “the traditional notions of fair play and substantial justice” are not offended by requiring a party to defend his case in the forum state. International Shoe Co., 326 U.S. at 316, 66 S.Ct. at 158, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940). The defendant’s “conduct and connection with the forum State [should be] such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagon, 444 U.S. at 297, 100 S.Ct. at 567. Therefore, the due process requirement will not be satisfied where there is only a mere likelihood that a product will find its way into the forum state. Id. C. Defendant’s Motion to Dismiss for Lack of Jurisdiction Upon the filing of a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), Fed.R.Civ.P., a plaintiff has the burden of proving personal jurisdiction over a defendant, United States v. Montreal Trust Co., 358 F.2d 239, 242 (2d Cir.), cert. denied, 384 U.S. 919, 86 S.Ct. 1366, 16 L.Ed.2d 440 (1966), and must support his allegation of personal" }, { "docid": "8357659", "title": "", "text": "of the forum so as to make it reasonable and just to subject the corporation to the jurisdiction of that state are to be determined in each case. The corporate activities of a foreign corporation which, under state statute, make it necessary for it to secure a license and to designate a statutory agent upon whom process may be served provide a helpful but not a conclusive test. ... On the other hand, if the same corporation carries on, in that state, other continuous and systematic activities as it did here . . . those activities are enough to make it fair and reasonable to subject that corporation in proceedings in personam in that state The Restatement 2d, Conflict of Laws § 47(2) has codified the principle of Perkins : A state has power to exercise judicial jurisdiction over a foreign corporation which does business in the state with regard to causes of action that do not arise from the business done in the state if this business is so continuous and substantial as to make it reasonable for the state to exercise such jurisdiction. Although Perkins does not treat qualification to do business in the forum state as a sufficient “contact” in and of itself to make a state’s assumption of jurisdiction reasonable, several courts have treated Perkins as the announcement of a “modern due process ‘presence’ test” under which statutory presence alone is sufficient. See Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d 406, 413 (9th Cir. 1977) and cases therein cited. We believe this is an overbroad reading. In Perkins the corporation sued had in essence moved its principal place of business to Ohio, the forum state, during the Japanese occupation of the Philippines. The “continuous and substantial” activities of the defendant in Ohio, therefore, were tantamount to principal operation in Ohio; the defendant corporation held directors’ meetings and effected stock transfers from its Ohio base of operations. Thus Comment (f) to Restatement 2d, § 47(2), supra, notes “such jurisdiction is particularly likely to exist in situations where the corporation’s principal place of business" }, { "docid": "18836156", "title": "", "text": "this section as conferring general jurisdiction over nonresident defendants who conduct “substantial” and “continuous” business in the state “of such a character as to give rise to a legal obligation.” Crose v. Volkswagenwerk Aktiengesellschaft, 88 Wash.2d 50, 558 P.2d 764, 766-67 (1977) (en banc); see Hein v. Taco Bell, Inc., 60 WasLApp. 325, 803 P.2d 329, 331 (1991). Although the Washington Supreme Court has never explicitly so stated, courts of appeal have consistently held that the “doing business” and due process inquiries are the same. See MBM Fisheries, Inc. v. Bollinger Mach. Shop & Shipyard, Inc., 60 Wash.App. 414, 804 P.2d 627, 630-31 (1991); Hein, 803 P.2d at 332. Thus “ ‘the statutory and constitutional standards merge into a single due process test,’ ” Shute, 897 F.2d at 380 (quoting Pedersen Fisheries, Inc. v. Patti Indus., 563 F.Supp. 72, 74 (W.D.Wash.1983)), and we turn to the question of whether general jurisdiction over Leonis comports with due process requirements. B. Due Process “Due process requirements are satisfied when in personam jurisdiction is asserted over a nonresident corporate defendant that has ‘certain minimum contacts with [the forum] such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ ” Helicopteros, 466 U.S. at 414, 104 S.Ct. at 1872 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). The Supreme Court has bifurcated this due process determination into two inquiries, requiring, first, that the defendant have the requisite contacts with the forum state to render it subject to the forum’s jurisdiction, and second, that the assertion of jurisdiction be reasonable. See Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (majority agreeing on dismissal because assertion of jurisdiction was unreasonable, but disagreeing on whether minimum contacts existed). Because we conclude that the exercise of personal jurisdiction over Leonis would be unreasonable, we need not address the issue of contacts. See FDIC v. British-American Ins. Co., Ltd., 828 F.2d 1439, 1442 (9th Cir. 1987); Fields, 796 F.2d at 302." }, { "docid": "18811298", "title": "", "text": "that a choice-of-law provision “does not have jurisdictional implications.” Galgay, supra, 504 F.2d at 1066. It seems overbroad to state that a choice-of-law provision has no “jurisdictional implications” whatsoever. A choice-of-law provision might be very relevant in determining the second or “fairness” prong of the Fifth Circuit’s due process test. The Second Circuit, however, is correct in holding that such a provision should not be a factor in determining if the requisite “minimum contacts” exist. The Fifth Circuit has noted that the “contacts” required by the first prong of the due process test should “support an inference that the nonresident defendant purposely availed himself of the benefits of conducting business in the forum.” Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 495 (5th Cir.1974). A choice-of-law provision does not necessarily support that inference. The parties may well agree to such a provision simply to curtail potentially expensive and time consuming problems of comparative law. The provision may have little relation to the location of the defendant’s business activities. Thus, it would be inequitable to find that a choice-of-law provision is a “contact” for due process purposes. In this case, given that the choice-of-law provision is not a “contact”, and that Defendants’ other contacts are insufficient, Plaintiff has failed to show that assertion of jurisdiction over Defendants would comply with the first prong of the applicable due process test. The Court need not determine whether the assertion of jurisdiction would satisfy the second portion of the due process test; the failure to satisfy the first prong is dispositive. The Court finds that the assertion of jurisdiction over Defendants would violate due process. The Court, therefore, is precluded from ruling as to Defendants’ other claims. Blackeney v. Blackeney, 664 F.2d 433 (5th Cir.1981). Defendants’ Motion to Dismiss is GRANTED, and this case is DISMISSED without prejudice at Plaintiff’s cost. SO ORDERED. . Compare Standard Fittings Co. v. Sapag, S.A., 625 F.2d 630 (5th Cir.), cert. denied, 451 U.S. 910, 101 S.Ct. 1981, 68 L.Ed.2d 299 (1980); Gold Kist, Inc. v. Baskin-Robbins Ice Cream, 623 F.2d 375 (5th Cir.1980); Southwest Offset, Inc. v." } ]

[ { "docid": "22250122", "title": "", "text": "jurisdiction. Therefore, this court can ignore the defendant’s attempts to dispute the facts and nonetheless resolve the legal issue, obviating the need to dismiss the entire appeal for lack of jurisdiction. See Phelps v. Coy, 286 F.3d 295, 298-99 (6th Cir.2002); see also Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 602 n. 5 (6th Cir.2005). B. Merits of Hollins’s Qualified Immunity Claim ' Hollins knew that Carter was exhibiting the classic symptoms of an impending heart attack, knew she had cried for help, and believed that she was three days behind in taking her heart medication. His failure to order transportation to take Carter to the hospital violated Carter’s clearly established right to adequate medical treatment while in pretrial custody. Qualified immunity is an affirmative defense that shields government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). There are two steps in the analysis: (1) whether, considering the allegations in a light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The initial inquiry is whether a constitutional right was violated, if the allegations are established. Id. Pre-trial detainees have a right under the Fourteenth Amendment to adequate medical treatment, a right that is analogous to the right of prisoners under the Eighth Amendment. Watkins v. City of Battle Creek, 273 F.3d 682, 685-86 (6th Cir.2001). A cause of action under § 1983 for failure to provide adequate medical treatment requires a showing that “the defendants acted with ‘deliberate indifference to the serious medical needs’ ” of the pre-trial detainee. Watkins, 273 F.3d at 686 (quoting Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). There are two parts to the claim, one objective, one subjective. For the objective component, the detainee must demonstrate “the existence" } ]

[ { "docid": "23243018", "title": "", "text": "not act with deliberate indifference. Howard now appeals the district court’s judgment as it relates to Backer, Clarkson, Halligan, and DeCesaro. Our jurisdiction arises under 28 U.S.C. § 1291. II We review orders granting summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. See Habecker v. Town of Estes Park, 518 F.3d 1217, 1223 (10th Cir.2008). Summary judgment is appropriate when the record “show[s] that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The Sterling defendants moved for summary judgment on the basis that they were entitled to qualified immunity. Claims of qualified immunity implicate the two-step inquiry of Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “After a defendant invokes qualified immunity, the plaintiff in a case like this one, which alleges a violation of the Eighth Amendment, must demonstrate that the defendants^] actions violated a specific constitutional right.” Mata v. Saiz, 427 F.3d 745, 749 (10th Cir.2005) (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151). “If the plaintiff meets this initial burden, [he] must then show that the constitutional right was ‘clearly established’ prior to the challenged official action.” Id. A 1 We begin by considering whether Howard has alleged a constitutional violation. Howard’s claims arise from the Eighth Amendment’s prohibition against cruel and unusual punishment, which encompasses deliberate indifference by prison officials. Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). We analyze his claims under Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Farmer is not only controlling authority in deliberate indifference cases, but is also particularly instructive here because it contains significant factual parallels to the present case. The plaintiff in Farmer was a biologically male, preoperative transsexual who, several years into his federal sentence, was transferred to a higher-security facility and placed in the general male prison population. Id. at 829-30, 114 S.Ct. 1970. He “voiced no objection to any prison official about the" }, { "docid": "21500858", "title": "", "text": "for qualified immunity. He does not suggest how such a standard is applicable to him and has thus waived the argument. “It is a ‘settled appellate rule that issues averred to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.’ ” Spirko v. Mitchell, 368 F.3d 603, 612 (6th Cir.2004) (quoting United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.1996)). In essence, Defendant Stone does not dispute the deliberate indifference theory advanced by Plaintiff. Although he states that Plaintiff has not .proven a violation of a clearly established right, in substance what Stone actually presents is a factual argument regarding his awareness and disregard of a substantial risk of harm to Plaintiff. This sort of argument, based upon disputes of fact, is inappropriate for review on appeal of a denial of qualified immunity. II. Defendant McGuckin and Plaintiffs Excessive Force Claim Although Defendant Stone’s appeal should be dismissed, the majority properly reaches, the merits of Defendant McGuc-kin’s appeal regarding the denial of qualified immunity with respect to Plaintiffs excessive force claim. As discussed below, however, the majority erroneously concludes that McGuckin is entitled to qualified immunity despite the fact that McGuc-kin, through his use of force, intended to terrorize, punish and harass Plaintiff because of his charges. Contrary to the majority’s determination, McGuckin’s actions were more than de minimis and constituted excessive force in violation of Plaintiffs Fourteenth Amendment rights. Therefore, McGuckin is not entitled to qualified immunity and the district court should be. affirmed. “Qualified or ‘good faith’ immunity is an affirmative defense that must be pleaded by a defendant official.” Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This defense allows a government official to invoke “an entitlement not to stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). To determine whether qualified immunity was properly denied, this Court must examine: (1) whether, considering the evidence in the light most favorable to the party injured, a constitutional right has been violated, and" }, { "docid": "22889728", "title": "", "text": "v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (noting that a determination that the defendant is or is not entitled to qualified immunity under a sufficiently supported set of facts is a reviewable, abstract issue of law); Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir.2006) (“This court 'must accept the plaintiff's version of the facts as true’ and may review de novo only the purely legal question of whether 'the district court erred in concluding as a matter of law that officials are not entitled to qualified immunity on [that] given set of facts.’ ”). . Palmer, 193 F.3d at 351 (“[0]n this interlocutory appeal we do not review ... the district court's assessment of what facts are established by or inferable from the evidence.”). . Gobert, 463 F.3d at 345. . Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Hall v. Thomas, 190 F.3d 693, 696 (5th Cir.1999) (recognizing that the administration of medical care to an inmate is a discretionary function). . Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir.1993). . Id. at 105, 108 (“When evaluating whether a plaintiff stated a constitutional violation, we look[] to currently applicable constitutional standards. However, '[t]he objective reasonableness of an official's conduct must be measured with reference to the law as it existed at the time of the conduct in question.’ ” (internal citations omitted)). . Id. at 105. . Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir.1992) (\"Even if an official's conduct violates a constitutional right, he is entitled to qualified immunity if the conduct was objectively reasonable.”). . Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir.1999). . Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). . Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). . Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.1993). . Farmer, 511 U.S. at 829, 114 S.Ct. 1970. . Id." }, { "docid": "14145704", "title": "", "text": "statutory or constitutional rights of which a reasonable person would have known.” Feathers v. Aey, 319 F.3d 843, 847 (6th Cir.2003) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity does not serve merely as a defense against liability to be asserted during litigation. Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Rather, it offers “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). A defendant enjoys qualified immunity on summary judgment unless the facts alleged and the evidence produced, when viewed in the light most favorable to the plaintiff, would permit a reasonable juror to find that: (1) the defendant violated a constitutional right; and (2) the right was clearly established. See Jones v. City of Cincinnati 521 F.3d 555, 559 (6th Cir. 2008) (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151). A right is “clearly established” if “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Thus, the relevant inquiry is “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151. As noted above, Amanda brings this action pursuant to 42 U.S.C. § 1983, alleging Officer Celender violated her constitutional right to be free of excessive force. We apply the Fourth Amendment’s unreasonable seizure jurisprudence when analyzing such claims. Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001). Whether an officer has exerted excessive force during the course of seizure is determined under an “objective reasonableness” standard. Id. (citing Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). This entails “balancing] the consequences to the individual against the government’s interests in effecting the seizure.” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir.2002)" }, { "docid": "14731895", "title": "", "text": "810, 817 (6th Cir.2005); Gregory, 444 F.3d at 738. Section 1983 claims, however, are subject to the affirmative defense of qualified immunity which, if applicable, shields individuals not just against liability, but against the suit itself. See Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The burden rests on Plaintiff to show Defendants are not entitled to immunity. Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir.2005). Qualified immunity protects state officials, including prison employees, so long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Cochran v. Gilliam, 656 F.3d 300, 306 (6th Cir.2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In resolving qualified immunity claims, we ask whether: (1) the facts, viewed in the light most favorable to Plaintiff, show a violation of a constitutional right; and (2) the right at issue was “clearly established” at the time of the alleged misconduct. Id. (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). While this Court can consider these prongs in either order, Pearson, 555 U.S. at 236, 129 S.Ct. 808, we do not need to reach the “clearly established” prong in this case because, as discussed below, there are no allegations of a constitutional violation. Eighth Amendment Liability Plaintiffs constitutional claims under Section 1983 are based on alleged violations of the Eighth Amendment, which “forbids prison officials from ‘unnecessarily and wantonly inflicting pain’ on an inmate by acting with ‘deliberate indifference’ toward [his] serious medical needs.” Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir.2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). The Eighth Amendment embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and decency” against which courts must evaluate penal measures. Estelle, 429 U.S. at 102, 97 S.Ct. 285. “These elementary principles establish the government’s obligation to provide medical care for those whom it is punishing by incarceration.” Id. at 103, 97 S.Ct." }, { "docid": "21500859", "title": "", "text": "force claim. As discussed below, however, the majority erroneously concludes that McGuckin is entitled to qualified immunity despite the fact that McGuc-kin, through his use of force, intended to terrorize, punish and harass Plaintiff because of his charges. Contrary to the majority’s determination, McGuckin’s actions were more than de minimis and constituted excessive force in violation of Plaintiffs Fourteenth Amendment rights. Therefore, McGuckin is not entitled to qualified immunity and the district court should be. affirmed. “Qualified or ‘good faith’ immunity is an affirmative defense that must be pleaded by a defendant official.” Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This defense allows a government official to invoke “an entitlement not to stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). To determine whether qualified immunity was properly denied, this Court must examine: (1) whether, considering the evidence in the light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly established. Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 (6th Cir.2005) (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151); Comstock v. McCrary, 273 F.3d 693, 701 (6th Cir.2001). A. Source of Plaintiff s Constitutional Right to Be Free from Excessive Force In evaluating whether qualified immunity was properly denied, the constitutional right alleged to have been infringed upon must first be ascertained. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989). In Graham v. Connor, the Supreme Court noted that there is no generic standard for excessive force claims brought under § 1983. Instead, courts were directed to begin the analysis of § 1983 excessive force claims by “identifying the specific constitutional right allegedly infringed by the challenged application of force.” Id. The specific constitutional provision to be applied to the challenged application of force turns largely on the status of the plaintiff at the time of the alleged use of excessive force. “In most instances, that will be either" }, { "docid": "23690087", "title": "", "text": "affirmative defense that must be pleaded by a defendant official.” Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). As noted above, this defense allows a government official to invoke “an entitlement not to stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (internal citations omitted). To determine whether qualified immunity was properly denied, this Court must examine: (1) whether, considering the evidence in the light most favorable to the party injured, a constitutional right has been violated; and (2) whether that right was clearly established. See Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 (6th Cir.2005); Comstock v. McCrary, 273 F.3d 693, 701 (6th Cir.2001). In Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), the Supreme Court noted that “having stripped [inmates] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” Thus, in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Court held that the Eighth Amendment requires the government “to provide medical care for those whom it is punishing by incarceration” because the failure to do so “may actually produce physical torture or a lingering death” or “[i]n less serious cases, ... may result in pain and suffering which no one suggests would serve any penological purpose.” Id. at 103, 97 S.Ct. 285 (internal citations omitted). The failure to provide such medical care may result in a violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment. Id. In Estelle, the Supreme Court held that deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amend ment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering" }, { "docid": "3058540", "title": "", "text": "Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir.2005). A state official is protected from suit by qualified immunity so long as the official’s “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Reece v. Groose, 60 F.3d 487, 491 (8th Cir.1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)) (internal quotation omitted). In analyzing whether an official is entitled to qualified immunity, we ask first whether the alleged facts, when considered in the light most favorable to the injured party, demonstrate that the defendant violated the injured party’s rights. Bearden, 475 F.3d at 929 (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). If a violation occurred, we then ask whether the constitutional right was clearly established from the perspective of a reasonable official in the defendant’s position at the time of the defendant’s conduct. Id. To prove an Eighth Amendment violation, a prisoner must satisfy two requirements, one objective and one subjective. The first requirement tests whether, viewed objectively, the deprivation of rights was sufficiently serious. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The second requirement is subjective and requires that the inmate prove that the prison officials had a “sufficiently culpable state of mind.” Id. Eighth Amendment cases are analyzed in light of the specific claim raised. In excessive force claims, the subjective inquiry is whether the force was used “ ‘in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’ ” Arnold v. Groose, 109 F.3d 1292, 1298 (8th Cir.1997) (quoting Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). In prison conditions claims, which include threats to an inmate’s health and safety, the subjective inquiry is whether the prison officials were deliberately indifferent to a serious risk of harm to the inmate. Farmer, 511 U.S. at 834, 114 S.Ct. 1970; Arnold, 109 F.3d at 1298. Irving’s allegations satisfy the second," }, { "docid": "23036268", "title": "", "text": "conclusion.” Id. In assessing the jury’s verdict, we may not weigh the evidence but simply ask whether the plaintiff has presented sufficient evidence to support the jury’s conclusion. Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227-28 (9th Cir. 2001). DISCUSSION We address first the claims against the individual defendants and then the claims against the entity defendants. A. Individual Defendants The jury found Solomon and Valentine liable for injuries to Castro. Solomon and Valentine maintain that, as a matter of law, they are entitled to qualified immunity and that Castro has failed to show that they were deliberately indifferent to a substantial risk of serious harm. 1. Qualified Immunity Qualified immunity shields government actors from civil liability under 42 U.S.C. § 1983 if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). To determine whether an officer is entitled to qualified immunity, a court must evaluate two independent questions: (1) whether the officer’s conduct violated a constitutional right, and (2) whether that right was clearly established at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Here, Castro — a pretrial detainee who had not been convicted of any crime— had a due process right to be free from violence from other inmates. Fifteen years before Castro’s arrest, in Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), the Supreme Court made clear that “prison officials have a duty to protect prisoners from violence at the hands of other prisoners” because corrections officers have “stripped [the inmates] of virtually every means of self-protection and foreclosed their access to outside aid.” (Internal quotation marks and ellipsis omitted.) And the Court had consistently held (before Castro’s arrest) that the due process rights of a pretrial detainee are “at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Mass. Gen. Hosp., 463 U.S." }, { "docid": "23690086", "title": "", "text": "'genuine’ issue of material fact for trial.” Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Rather, “the defendant must be prepared to overlook any factual dispute and to concede an interpretation of the facts in the light most favorable to the plaintiffs case.” Berryman v. Rieger, 150 F.3d 561, 562 (6th Cir.1998); see also Booher v. Northern Kentucky Univ. Board of Regents, 163 F.3d 395, 396-97 (6th Cir.1999). Thus, to the extent that the denial of qualified immunity is based on a factual dispute, such a denial falls outside of the narrow jurisdiction of this Court. Berryman, 150 F.3d at 563; Gregory, 444 F.3d at 742. In the instant case, Defendant officers have conceded the facts in the light most favorable to Harrison and raise a pure issue of law regarding Harrison’s establishment of deliberate indifference in violation of the Eighth Amendment. Thus, we have jurisdiction over Defendant officers’ qualified immunity appeal. B. Qualified Immunity and the Deliberate Indifference Standard Qualified immunity or “ ‘good faith’ immunity is an affirmative defense that must be pleaded by a defendant official.” Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). As noted above, this defense allows a government official to invoke “an entitlement not to stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (internal citations omitted). To determine whether qualified immunity was properly denied, this Court must examine: (1) whether, considering the evidence in the light most favorable to the party injured, a constitutional right has been violated; and (2) whether that right was clearly established. See Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 (6th Cir.2005); Comstock v. McCrary, 273 F.3d 693, 701 (6th Cir.2001). In Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), the Supreme Court noted that “having stripped [inmates] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the" }, { "docid": "1830991", "title": "", "text": "assertion of qualified immunity in a suit against an officer for an alleged violation of a constitutional right, a court must first consider whether the facts, taken in the light most favorable to the party asserting the injury, show the officer’s conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If a constitutional violation can be established, a court then considers whether the right was clearly established. Id. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202, 121 S.Ct. 2151. In general, to establish a violation of the Eighth Amendment for a claim under § 1983, a plaintiff must demonstrate deliberate indifference on the part of municipal officials to the prisoner’s serious illness or injury. Estelle, 429 U.S. at 104, 97 S.Ct. 285. Section 1983 claims arising out of inmate suicide cases are “analyzed in terms of prison officials’ failure to provide appropriate medical care, so deliberate indifference has become the barometer by which these claims are tested.” Olson v. Bloomberg, 339 F.3d 730, 735 (8th Cir.2003) (internal quotations omitted). The United States Supreme Court has likened deliberate indifference to a criminal recklessness standard, which traditionally has contained a subjective component. Farmer v. Brennan, 511 U.S. 825, 837-840, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). To establish a constitutional violation in this instance, Plaintiffs must establish deliberate indifference by demonstrating that: (1) the Individual Defendants knew Cotton presented a substantial suicide risk and (2) the Individual Defendants failed to respond reasonably to that risk. Olson, 339 F.3d at 735. Plaintiffs maintain that genuine issues of material fact exist as to whether the Individual Defendants were deliberately indif ferent in failing to recognize and respond to the risk that Cotton was suicidal. They concede that “Defendants knew only what was contained in the Discharge Summaries of November 15 and December 4th, and those summaries warned defendants that Mr. Cotton remained at risk for harming himself" }, { "docid": "14955490", "title": "", "text": "merits of Garretson’s claims, the court determined issue of qualified immunity was moot. However, this issue must be addressed more closely here. We must first determine whether Garretson has “alleged facts which, when taken in the light most favorable to her, show that the [officers’] conduct violated a constitutionally protected right.” Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir.2001) (citing Saucier v. Katz, 533 U.S. 194, 200-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). If this threshold question is answered affirmatively, we then address whether such right was clearly established at the time of the violation. Id. (a) Constitutional Violation Garretson alleged that individual Madison Heights officers violated her Fourteenth Amendment rights by exhibiting a deliberate indifference to her medical needs while she was detained pretrial in the Madison Heights jail. See Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir.2004) (citing Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir.1985)). See also Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). This claim has objective and subjective components. Napier v. Madison County, 238 F.3d 739, 742 (6th Cir.2001). The objective component requires a showing that the alleged deprivation is sufficiently serious — that she was incarcerated “under conditions posing a substantial risk of seri ous harm.” Id. (citing Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). In. Napier, we held that an incarcerated plaintiff who complains that a delay in medical treatment violates her constitutional rights must present “verifying medical evidence” to establish the detrimental effect of the delay. 238 F.3d at 742-43. Here, Garretson is a diabetic whose condition required insulin injections at regulated intervals — a medically required treatment which she did not receive while housed at Madison Heights. As a result of this omission, she was later admitted to the hospital. Even without specific medical records, the emergency hospital admission coupled with a stay of several days satisfies the objective requirement of a “sufficiently serious” medical need under Farmer and Napier. Garretson must also show that the officers subjectively had “a" }, { "docid": "22136531", "title": "", "text": "as to the material facts. [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trials\" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quotation marks and citations omitted). II. Qualified Immunity A. \"Qualified immunity is `an entitlement not to stand trial or face the other burdens of litigation.'\" Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). The principle of qualified immunity serves important practical purposes in our system. It shields government officials from liability for their performance of discretionary actions and offers them the benefit of avoiding costly, time-consuming and, ultimately unsuccessful litigation. See Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.2000). lArhen considering the issue of qualified immunity we must first determine whether-viewed in the light most favorable to the injured party-the facts alleged demonstrate that the officer's conduct violated a constitutional right. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. If so, we must determine whether that right was clearly established. In other words, \"[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.\" Anderson, 483 U.S. at 640, 107 S.Ct. 3034; see Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (noting that a court should determine \"not only the currently applicable law, but whether that law was clearly established at the time an action occurred\"). This inquiry is, in essence, a determination \"whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.\" Saucier, 533 U.S. at 202, 121 S.Ct. 2151; see Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (stating that qualified immunity protects \"all but the plainly incompetent or those who knowingly violate the law\"). If the" }, { "docid": "23084370", "title": "", "text": "Dr. Swindeman, Lorie Veter, Virginia Roberts, Tom Jasper, Jan Larson, Cathy Sandstrom, Mr. Massin-gill, and Don Bennett, and the defendant identified as “(NAME UNKNOWN),” they should be dismissed from this case by the district court. B. Qualified Immunity Claim “Government officials who perform discretionary functions are protected from liability for civil damages as long as ‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Lum v. Jensen, 876 F.2d 1385, 1386 (9th Cir.1989), cert. denied, 493 U.S. 1057, 110 S.Ct. 867, 107 L.Ed.2d 951 (1990), (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). In order to determine whether an official is entitled to qualified immunity, a court must (1) identify the right allegedly violated, (2) determine whether the right was “clearly established,” and (3) determine whether a reasonable official would have believed his or her conduct to be lawful. Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991). Qualified immunity is an affirmative defense; if the plaintiff proves that the right allegedly violated was clearly established, the burden shifts to the defendant official to prove that his or her conduct was reasonable even though it might have violated the law. Id. Hamilton alleges that the prison officials violated his Eighth Amendment right to be free from cruel and unusual punishment. At the time Hamilton was flown to Oklahoma, the law regarding the medical treatment of prisoners was “clearly established.” Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), reh’g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977). The government is required to provide medical care for those whom it punishes by incarceration, and prison officials who act with “deliberate indifference” to an inmate’s serious medical needs violate the Eighth Amendment. Id., 429 U.S. at 104, 97 S.Ct. at 291. A finding of deliberate indifference necessarily precludes a finding of qualified immunity; prison officials who deliberately ignore the serious medical needs of inmates cannot claim that it was not apparent to a" }, { "docid": "23369966", "title": "", "text": "this case only, that Dr. Wood is entitled to assert qualified immunity. See Perez v. Oakland County, 466 F.3d 416 (6th Cir.2006) (adopting a similar approach). C. Governmental and quasi-governmental actors performing discretionary functions are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir.2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court articulated a two-part test for determining whether an actor is entitled to qualified immunity: (1) “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” (2) “If a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established.” Id. at 201, 121 S.Ct. 2151. We review de novo a district court’s denial of summary judgment on qualified immunity grounds. Sallenger, 473 F.3d at 739. As a civilly committed detainee, Mr. Sain is protected by the Due Process Clause of the Fourteenth Amendment. Collignon v. Milwaukee County, 163 F.3d 982, 987 (7th Cir.1998). His protection against cruel and inhumane treatment has been defined as at least as extensive as that afforded to prisoners by the Eighth Amendment. Id.; see also Brown v. Budz, 398 F.3d 904, 909 (7th Cir.2005) (applying Eighth Amendment analysis to a section 1983 claim brought by a Joliet facility resident awaiting a civil commitment trial). The Eighth (and Fourteenth) Amendment requires that Mr. Sain be housed under “humane conditions” and provided with “adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). To show a constitutional violation and defeat Dr. Wood’s invocation of qualified immunity, Mr. Sain must prove both (1) that he suffered a sufficiently serious deprivation and (2) that Dr." }, { "docid": "20201049", "title": "", "text": "found that genuine issues of material fact exist, Butler has conceded the facts in the light most favorable to Mingus and raises a pure issue of law regarding her alleged deliberate indifference to Mingus’s needs in violation of the Eighth Amendment. See Harrison v. Ash, 539 F.3d 510, 516-17 (6th Cir.2008) (requiring that, to appeal a denial of qualified immunity, “the defendant must be prepared to overlook any factual dispute and to concede an interpretation of the facts in the light most favorable to the plaintiffs case”). We review de novo a district court’s denial of summary judgment on qualified immunity grounds “because the determination of whether qualified immunity is applicable to an official’s actions is a question of law.” Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 531 (6th Cir.2002) (quotation omitted). Qualified immunity is “an affirmative defense that must be pleaded by a defendant official.” Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Whether a defendant is entitled to qualified immunity depends upon whether the plaintiffs constitutional rights were violated and whether those rights were clearly established. See, e.g., Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir.2008). This Court may exercise its “sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). We conclude that Mingus’s constitutional rights were not violated. In Farmer v. Brennan, the Supreme Court remarked that “having stripped [inmates] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The Eighth Amendment protects inmates by requiring that “prison officials ... ensure that inmates receive adequate food, clothing, shelter, and medical care, and ... ‘take reasonable measures to guarantee the safety of the inmates.’ ” Id. at 832, 114 S.Ct." }, { "docid": "18512407", "title": "", "text": "judgment on the basis of the Second Circuit’s decision alone. B. That does not end the inquiry, however. For Defendants also claim they are entitled to qualified immunity even on Ms. Doninger’s version of the facts. Qualified immunity shields public officials from lawsuits for damages, unless their actions violate clearly established rights of which an objectively reasonable official would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir.2007). Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). It is an “immunity from suit rather than a mere defense to liability; and like absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Id.; see also Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir.2007). As a result, the Supreme Court and the Second Circuit “repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991); see also Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). In Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court set forth the relevant inquiries when a defense of qualified immunity is raised. Under Saucier, the Court must first decide whether, taking the facts in the light most favorable to the plaintiff, a constitutional violation occurred. If so, the Court must then decide whether the right was clearly established. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151; see also Gilles, 511 F.3d at 243. “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151. That is, the “relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be" }, { "docid": "13474401", "title": "", "text": "of fact therefore exists as to whether Gomes was deliberately indifferent to Wereb’s medical needs. 4. Qualified Immunity Given the court’s determination above that a material question of fact exists as to whether Mawae, Burgess, and Gomes were deliberately indifferent, the court must next determine whether these Defendants are nevertheless entitled to summary judgment on Plaintiffs’ § 1983 claims on the grounds of qualified immunity. The defense of qualified immunity “shields government officials performing discretionary functions from liability for civil damages ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Scott v. Henrich, 39 F.3d 912, 914 (9th Cir.1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The defense of qualified immunity requires a two-part analysis. First, the court must ask — as it did above — whether “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Second, given that a violation could be found on a favorable view of Plaintiffs’ facts, the court must look to see whether the violated right was clearly established. Id. The “general law regarding the medical treatment of prisoners was clearly established” well before Wereb’s death in 2008. See Clement v. Gomez, 298 F.3d 898, 906 (9th Cir.2002) (citing Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir.1992)). Specifically, before 2008, it was “clearly established that officers could not intentionally deny or delay access to medical care.” Id. (citing Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); see also Lolli, 351 F.3d at 421-22 (finding that officers accused of being deliberately indifferent to a diabetic detainee’s medical needs were not entitled to summary judgment on the basis of qualified immunity). Accordingly, the court finds that Mawae, Burgess, and Gomes are not entitled to qualified immunity. In opposition, Defendants contend that it was not clearly established in 2008 that monitoring" }, { "docid": "9807532", "title": "", "text": "accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The doctrine protects government officials from liability for civil damages, provided that their conduct does not violate clearly established statutory or constitutional rights within the knowledge of a reasonable person. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). An official asserting the defense of qualified immunity bears the burden of proof with respect to that defense. Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir.2013) (citation omitted). In reviewing a district court’s decision rejecting a defendant’s assertion of qualified immunity, we apply the analysis set forth by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), as modified by the Court’s later decision in Pearson. See Meyers, 713 F.3d at 731. The Court’s holding in Saucier requires a two-step approach, under which a court first must decide whether the undisputed facts show that the government official’s actions violated the plaintiffs constitutional rights. Id. (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151). When the plaintiff has satisfied this initial step, a court must determine whether the right at issue was “clearly established” at the time of the events in question. Id. (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151); see Pearson, 555 U.S. at 236, 129 S.Ct. 808 (modifying the Saucier approach such that courts are no longer required to conduct the analysis in the sequence set forth in Saucier). In this case, we focus our analysis on the first prong of the Saucier test, namely, whether Danser has established for purposes of summary judgment that the defendants violated one of his constitutional rights. The constitutional right at issue is Danser’s Eighth Amendment right to be protected from violence committed by other prisoners. See Farmer, 511 U.S. at 833-35, 114 S.Ct. 1970. This constitutional right derives from the Supreme Court’s holdings that the treatment an inmate" }, { "docid": "14731896", "title": "", "text": "Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). While this Court can consider these prongs in either order, Pearson, 555 U.S. at 236, 129 S.Ct. 808, we do not need to reach the “clearly established” prong in this case because, as discussed below, there are no allegations of a constitutional violation. Eighth Amendment Liability Plaintiffs constitutional claims under Section 1983 are based on alleged violations of the Eighth Amendment, which “forbids prison officials from ‘unnecessarily and wantonly inflicting pain’ on an inmate by acting with ‘deliberate indifference’ toward [his] serious medical needs.” Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir.2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). The Eighth Amendment embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and decency” against which courts must evaluate penal measures. Estelle, 429 U.S. at 102, 97 S.Ct. 285. “These elementary principles establish the government’s obligation to provide medical care for those whom it is punishing by incarceration.” Id. at 103, 97 S.Ct. 285. In Wilson v. Seiter, the Supreme Court set forth a two-step frame work for determining whether certain conditions of confinement constitute “cruel and unusual punishment” prohibited by the Eighth Amendment. 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). That framework consists of an objective and a subjective component. Blackmore, 390 F.3d at 895. First, Plaintiff must plead facts which, if true, establish the existence of a “sufficiently serious” medical need. Id. Seriousness is measured objectively, in response to “contemporary standards of decency.” Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (citing Estelle, 429 U.S. at 103, 97 S.Ct. 285). Essentially, a prisoner “must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Second, Plaintiff must establish the subjective element: he must demonstrate Defendants acted with “a sufficiently culpable state of mind in denying medical care.” Blackmore, 390 F.3d at 895. Only “deliberate indifference” to serious medical" } ]

[ { "docid": "22823569", "title": "", "text": "part of the work. No matter how long the delay or how great the damage, he was entitled to .no relief unless it appeared that the refusal was the result of “fraud or of such gross mistake as would imply a fraud.” Martinsburg & P. R. Co. v. March, 114 U. S. 549; United States v. Mueller, 113 U. S. 153. But the very extent of the power and the conclusive character of his decision raised a corresponding duty that the agent’s judgment should be exercised — not capriciously or fraudulently, but reasonably and with due regard to the rights of both the contracting parties. The finding by the court that the inspector’s refusal was a gross mistake and an act of bad faith necessarily, therefore, leads to the conclusion that the contractor was entitled to recover the damages caused thereby. The defendant claims that the plaintiff lost his right to recover because he failed to appeal to the Engineer in Charge; at\" Galveston, or to the Chief of Engineers, in Washington. But thére was no requirement or provision for appeal in the contract. The clause relied on by the Government relates to the duty of inspection and acceptance, making the decision of the Engineer in Charge conclusive as to the quality and quantity of work and material. That part of the agreement had no reference to the settlement of the córe. Whether it had suffi ciently consolidated involved the determination of a matter of fact, varying from day to day. The contractor had to act. or refrain from acting when the decision was made. That matter was expressly left to “the judgment of the United States agent in charge.” The contractor in submitting to his decision did not lose his right to recover damages occasioned by the refusal to permit the crest blocks to be laid, when, as found by the court, this refusal was gross error and an act of bad faith. The court, therefore, declared in plaintiff’s favor on this issue. He appeals, however, on the ground that the court only allowed him $11,908.90, being for expenses" } ]

[ { "docid": "13282484", "title": "", "text": "not subject to review. U. S. v. Atchison, Topeka & S. F. Ry. Co. (C. C. A.) 270 F. 1, 4.” Southern Surety Co. v. United States (C. C. A.) 23 F.(2d) 55, 58, 59; certiorari denied 278 U. S. 604, 49 S. Ct. 11, 73 L. Ed. 532. And in American Surety Co. v. Cotton Belt Levee Dist. No. 1 of Phillips County, Ark. (C. C. A. 8) 58 F.(2d) 234, 235, Judge Stone said: “The hare exception to the general finding is not sufficient. * * * The request for findings and conclusions, filed after the court had acted, is unavailing as coming too late” — eiting Southern Surety Co. v. United States, supra. In the findings of fact by the trial court, the following appears: “That the failure and refusal of said contracting officer to ascertain the facts with respect to said flood and the consequent delay and his act in deterrnining that no extension of time on said contract would be granted was not an exercise of the discretion as provided by the terms of the contract, but was so arbitrary as to amount to had faith and constituted a broach of the contract on the part of the United States of America. “That the contractor did not appeal and was not required to appeal from the act of said contracting officer.” This finding is challenged as amounting rather to a conclusion of law. But in this state of the record conclusions of law, no more than findings of fact, may ho reviewed. Even so considered, the conclusion may well have been drawn from the entire record, which is not before us for review. However, it may be said in passing that article 9 of thq contract preserved to the contractor certain protection from delays occasioned by floodsl and other causes, provided that, within ten days from the beginning of such delay, it should notify the contracting officer, who should ascertain the facts, his finding to he final and conclusive, subject to appeal to the head of the department. The court found that the-delays occurred without" }, { "docid": "20988259", "title": "", "text": "of the interpretation of the contract and specifications. In this case we are concerned only with the conclusiveness of his findings on questions of fact. His findings on questions of fact are alleged to be binding upon us in this case. It has been said many times that findings of fact of a contracting officer, affirmed on appeal, are conclusive, unless the evidence shows he acted arbitrarily or capriciously or that his decisions were so grossly erroneous as to show bad faith. This exception to the conclusiveness of his findings was first expressed by the Supreme Court, so far as we know, in Burchell v. Marsh, 17 How. 344, 349, 15 L.Ed. 96. It was reiterated in Kihlberg v. United States, 97 U.S. 398, 24 L.Ed. 1106; in United States v. Gleason, 175 U.S. 588, 602, 20 S.Ct. 228, 44 L.Ed. 284; in Ripley v. United States, 223 U.S. 695, 701, 32 S.Ct. 352, 56 L.Ed. 614, and in Merrill-Ruckgaber v. United States, 241 U.S. 387, 36 S.Ct. 662, 60 L.Ed. 1058 and in others. However, for his decision to be conclusive it must have been rendered “with due regard to the rights of both the contracting parties”. Ripley v. United States, supra, 223 U.S. at page 701, 32 S.Ct. at page 355, 56 L.Ed. 614. In that case the court said: “But the very extent of the power and the conclusive character of his decision raised a corresponding duty that the agent’s judgment should be exercised not capriciously or fraudulently, but reasonably, and with due regard to the rights of both the contracting parties.” In other words, the contracting officer must act impartially in settling disputes. He must not act as a representative of one of the contracting parties, but as an impartial, unbiased judge. If the evidence shows he has failed so to act, there can be no doubt that we have jurisdiction to set aside his decision. Northern Pacific Railway Co. v. Twohy Bros. Co., 9 Cir., 95 F.2d 220, 225; Anderson v. Imhoff et al., 34 Neb. 335, 51 N.W. 854, 856. The duty to act" }, { "docid": "9399451", "title": "", "text": "Finally, in Royal Indemnity, a case with facts similar to those above, the court adopted Trial Judge Wood’s opinion per curiam. His opinion was written after the case had been remanded by the court with directions to determine whether the Government had . . acted in good faith and primarily to promote the continuation of the contract work, and whether, in light of all the facts and circumstances, defendant’s actions were a reasonable exercise of its discretion or an arbitrary disregard of plaintiffs rights as surety and an abuse of such discretion.” 208 Ct. Cl. at 821-22, 529 F.2d at 1319. The Trial Judge, acting pursuant to the court’s order, found that the contracting officer had neither acted in bad faith nor abused his discretion in refusing to withhold the progress payment at issue in the case. 208 Ct. Cl. at 828, 529 F. 2d at 1323. He noted correctly that: The standard of proof to be applied in a case where an arbitrary and capricious disregard of the surety’s interests, and an abuse of discretion, are charged must be, and is, high. See Keco Indus., Inc. v United States, 192 Ct. Cl. 773, 428 F. 2d 1233 (1970). Where, as here, defendant is entitled to exercise its discretion, \"plaintiff has an unusually heavy burden of proof in showing that the determination made . . . was arbitrary and capricious.” Continental Bus. Enterprises, Inc. v. United States, 196 Ct. Cl. 627, 637, 452 F. 2d 1016, 1021 (1971). [208 Ct. Cl. 823, 529 F. 2d 1320.] As stated by these three cases, the law in this area has become settled that so long as there is no showing of bad faith or an abuse of discretion, the decision of a Government contracting officer that a progress payment to a financially strapped contractor should not be withheld will be accorded deference by this court, and the surety’s burden of proving to the contrary is high. This view has also been adopted by a District Court in the Tenth Circuit and by the Court of Appeals for the Ninth Circuit. These courts" }, { "docid": "21179001", "title": "", "text": "77 F.Supp. 498, 502, 111 Ct.Cl. 228, 247, this court reaffirmed the “established principle of law” that where a contracting officer is designated to make certain findings of fact, such findings “x x x are binding upon both the Government and the contractor if there is no fraud, gross error or arbitrariness by the contracting officer amounting to bad faith * * * where the contracting officer acted fairly and impartially in making his findings and there is substantial evidence to support such findings, they should not be reversed.” Recently, the U. S. Supreme Court stated: «X x x this Court long ago upheld the validity of clauses in gov •ernment contracts delegating to a government employee the authority to make determinations of disputed questions of fact, and required such determinations to be given conclusive effect in any subsequent suit in the absence of fraud or gross mistake implying fraud or bad faith.” United States v. Carlo Bianchi, Inc., 373 U.S. 709, 713, 83 S.Ct. 1409, 1412, 10 L.Ed.2d 652. In accordance with the direction contained in paragraph 7 (b) of the instructions to bidders, the contracting officer here determined that plaintiff’s telegraphic modification was timely. This appears from the abstract of bids which took account of the $55,555 increase in plaintiff’s bid and, even more clearly, from the document entitled “Findings of Fact and Recommendation of Award” which Lt. Colonel Joseph H. Sherrard, who was the contracting officer, submitted to the Chief of Engineers. In said document, the contracting officer stated explicitly: “ * * * it is believed that the low bidder has presented clear and convincing evidence that the telegraphic modification was filed in sufficient time to have been received by 2:00 P.M., and should be accepted.” This statement by the contracting officer would seem to be conclusive. Defendant contends, however, that the .above statement was not an ultimate finding by the contracting officer, but simply a recommendation to a higher authority, the Chief of Engineers. There is no support for defendant’s position that the Chief of Engineers in Washington was supposed to decide the •question of" }, { "docid": "22542924", "title": "", "text": "Mr. Justice Minton delivered the opinion of the Court. This Court is again called upon to determine the meaning of the “finality clause” of a standard form government contract. Respondents agreed tó build a dam for the United States under a contract containing the usual “Article 15.” That Article provides that all disputes involving questions of fact shall be decided by the contracting officer, with the right of appeal to the head of the department “whose decision shall be final and conclusive upon the parties thereto.” Dissatisfied with the resolution of various disputes by the department head, in this instance the Secretary of the Interior, respondents brought suit in the Court of Claims. That court reviewed their contentions, and in the one claim involved in this proceeding set aside the decision' of the department head. 117 Ct. Cl. 92. Although there was some dispute below, the parties now agree that the question decided by the department head was a question of fact. We granted certiorari, 341 U. S. 924, to clarify the rule of this Court which created an exception to the conclusiveness of such administrative decision. The same Article 15 of a government contract was before this Court recently, and we held, after a review of the authorities, that such Article was valid. United States v. Moorman, 338 U. S. 457. Nor was the Moor-man case one of first impression. Contracts, both governmental and private, have been before this Court in several cases in which provisions equivalent to Article 15 have been approved and enforced “in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment . . . .” Kihlberg v. United States, 97 U. S. 398, 402; Sweeney v. United States, 109 U. S. 618, 620; Martinsburg & P. R. Co. v. March; 114 U. S. 549, 553; Chicago, S. F. & C. R. Co. v. Price, 138 U. S. 185, 195. In Ripley v. United States, 223 U. S. 695, 704, gross mistake implying bad faith is equated to “fraud.” Despite the fact that" }, { "docid": "7558942", "title": "", "text": "“in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment,” the official’s decision under such clauses would be “conclusive upon” both the contractor and the government. Kihlberg v. United States, 97 U.S. 398, 402 (1878). Thus, despite the discretionary and purportedly final nature of these decisions, the Court of Claims was able to exercise jurisdiction over challenges that met the Kihlberg standard, as that standard evolved over time. See, e.g., United States v. Gleason, 175 U.S. 588, 607 (1900) (re-statirig test as requiring “allegation and proof of bad faith, or of mistake or negligence so great, so gross, as to justify an inference of bad faith”); Ripley v. United States, 223 U.S. 695, 701-02, 32 S.Ct. 352 (1912) (recognizing “a corresponding duty that the agent’s judgment should be exercised — not capriciously or fraudulently, but reasonably and with due regard to the rights of both contracting parties”). Since the issue in these cases boiled down to whether a government official properly exercised his discretion, under a formal role assigned by consent of a contractor via contract, one would naturally assume that the presumption of good faith would figure prominently in them. This assumption turns out to be incorrect. In one case, the Supreme Court is quoted for its proposition, “[w]e are permitted, and indeed required, in the absence of evidence of bad faith on his part, to presume that [the government official] acted with due regard to his duties as between the Government and the contractors,” Gearing v. United States, 48 Ct.Cl. 12, 22, 1912 WL 1165 (1912) (quoting Gleason, 175 U.S. at 607). In another case, in which a contractor challenged the Secretary of the Interior’s decision to authorize the suspension of its contract, the basis was not “bad faith or fraud or mistake so gross as to justify an inference thereof,” but that the Secretary relied on “inaccurate information” received from subordinates. Pacific Coast Constr. Co. v. United States, 53 Ct.Cl. 582, 589, 1918 WL 160 (1918). Since plaintiff failed to make the proper allegations" }, { "docid": "20988258", "title": "", "text": "WHITAKER, Judge. The Government filed a motion for a new trial in this case, which we overruled. It then filed a motion for leave to file a second motion for a new trial, asserting that the issues in this case and in the case of Moorman v. United States, 113 Ct.Cl. 159, 82 F.Supp. 1010, then pending in the Supreme Court on certiorari to this court, were the same, and requesting that if its motion 'for leave to file a second motion was granted, that it be held in abeyance until the Supreme Court’s decision in the Moorman case. We granted the defendant’s motion, and the Supreme Court has now decided the Moorman case, 338 U.S. 457, 70 S.Ct. 288. Defendant says that the Moorman decision, as well as others precludes us from overruling a finding of the contracting officer made in good faith, and that since his findings in this case are against the plaintiff, they preclude recovery. The Moorman case involved the conclusiveness of the findings of the contracting officer on the question of the interpretation of the contract and specifications. In this case we are concerned only with the conclusiveness of his findings on questions of fact. His findings on questions of fact are alleged to be binding upon us in this case. It has been said many times that findings of fact of a contracting officer, affirmed on appeal, are conclusive, unless the evidence shows he acted arbitrarily or capriciously or that his decisions were so grossly erroneous as to show bad faith. This exception to the conclusiveness of his findings was first expressed by the Supreme Court, so far as we know, in Burchell v. Marsh, 17 How. 344, 349, 15 L.Ed. 96. It was reiterated in Kihlberg v. United States, 97 U.S. 398, 24 L.Ed. 1106; in United States v. Gleason, 175 U.S. 588, 602, 20 S.Ct. 228, 44 L.Ed. 284; in Ripley v. United States, 223 U.S. 695, 701, 32 S.Ct. 352, 56 L.Ed. 614, and in Merrill-Ruckgaber v. United States, 241 U.S. 387, 36 S.Ct. 662, 60 L.Ed. 1058 and in others." }, { "docid": "21527642", "title": "", "text": "Ed. 214. As examples of eases announcing the rule that agreements which oust the jurisdiction of the courts are invalid see Home Insurance Co. v. Morse, 20 Wall. 445, 22 L. Ed. 365; Robert Grace Contracting Co. v. C. & O. N. R. Co., 281 F. 904, 905 (C. C. A. 6); Mitchell v. Dougherty, 90 F. 639 (C. C. A. 3); and see United States Asphalt Ref. Co. v. Trinidad Lake Petroleum Co., 222 F. 1006 (D. C. S. D. of N. Y.). The validity of arbitration or umpire provisions governing disputes arising in construction and similar contracts have been generally upheld. As said in United States v. Gleason, 175 U. S. 588, 602, 20 S. Ct. 228, 233, 44 L. Ed. 284, “ * * * It is competent for parties to a contract, of the nature of the present one [construction contract], to make it a term of the contract that the decision of an engineer, or other officer, of all or specified matters of dispute that may arise during the execution of the work, shall be final and conclusive, and that, in the absence of fraud or of mistake so gross as to necessarily imply bad faith, such decision will not be subjected to the revisory power of the courts.” The validity of such contract provisions has been steadily supported in the Supreme Court [United States v. Mason & Hanger Co., 260 U. S. 323, 326, 43 S. Ct. 128, 67 L. Ed. 286; Plumley v. United States, 226 U. S. 545, 54.8, 33 S. Ct. 139. 57 L. Ed. 342; Ripley v. United States, 223 U. S. 695, 701, 704, 750, 32 S. Ct. 352, 56 L. Ed. 614; Chicago, S. F. & C. Railroad Co. v. Price, 138 U. S. 185, 11 S. Ct. 290, 34 L. Ed. 917; Hamilton v. Liverpool & L. & G. Insurance Co., 136 U. S. 242, 256, 10 S. Ct. 945, 34 L. Ed. 419; Martinsburg & P. R. Co. v. March, 134 U. S. 549, 5 S. Ct. 1035, 29 L. Ed. 255; Kihlberg v. United States," }, { "docid": "17148054", "title": "", "text": "the Bureau to be a cause excusing delay under Article 9 of the contract.” On an appeal from the above decision to the Secretary of the Navy this official affirmed the decision of the Bureau of Yards and Docks. Article 9 of the contract is in part as follows: * * * Provided further, That the contractor shall within 10 days from the beginning of any such delay notify the contracting officer in' writing of the causes of delay, who shall ascertain the facts and the extent of the delay and extend the time for completing the work when in his judgment the findings of fact justify such an extension, and his findings of fact thereon shall be final and conclusive on the parties hereto, subject only to appeal, within thirty days, by the contractor to the head of the Department concerned, whose decision on such appeal as to the facts of delay and the extension of time for completing the work shall be final and conclusive on the parties hereto. Similar articles in Government contracts have been repeatedly before this and the Supreme Court. The scope and effect of such a contractual provision is well established. United States v. Gleason, 175 U. S. 588. See also Carroll v. United States, 76 C. Cls. 103. It has long since been Held that the decision of the final official possessed of appellate jurisdiction over the subject matter is final, and “that in the absence of fraud, or of mistake so gross as to necessarily imply bad faith” it may not be challenged in the courts. We can not escape the conclusion that the decision denying the plaintiff an extension of time due to the injury inflicted upon the steel by the transportation of the same was erroneous in not holding that it was under the contract an unforeseen cause of delay for which the contractor is not responsible under Article 9 of the contract. The decision, we think, is grossly erroneous and arbitrary. Unforeseen delays excusable under Article 9 can not be arbitrarily limited to delays which subsequent to the event" }, { "docid": "8342686", "title": "", "text": "to justify an inference of bad faith, or that he has failed to exercise an honest judgment. Kihlberg v. United States, 97 U.S, 398, 24 L.Ed. 1106; Martinsburg & Potomac R. Co. v. March, 114 U.S. 549, 5 S.Ct. 1035, 29 L.Ed. 255; United States v. Gleason, 175 U.S. 588, 20 S.Ct. 228, 44 L.Ed. 284. In the Blair case, supra, the respondent was awarded a contract by the United States to construct certain buildings at the Veterans’ Administration Facility at Roanoke, Virginia. After completing the contract, respondent filed a claim with the Veterans’ Administration for certain expenses including expenses alleged to have been imposed on him by the arbitrary, capricious and unfair conduct of government agents at the work site. The claim was rejected and a suit in the Court of Claims followed. The Court of Claims awarded respondent damages for extra labor and materials, excess wages and miscellaneous costs found to be the result of unauthorized acts, rulings and instructions of the Government superintendent and his assistant and also found that these acts, rulings and instructions were unreasonable and in many instances arbitrary, capricious and so grossly erroneous as to imply bad faith. In reviewing this judgment the United States Supreme Court used the following pertinent and appropriate language [321 U.S. 730, 64 S.Ct. 822]: “Assuming without deciding that the actions complained of were unauthorized, unreasonable and arbitrary, we cannot conclude that recovery of the resulting damages was proper in this case. Article 15 of the contract in suit provides that all disputes ‘concerning questions arising under this contract shall be decided by the contracting officer or his duly authorized representative, subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto as to such questions.’ All of the items on which the recovery * * * was based were the subject of the ‘disputes concerning questions arising under this contract.’ Respondent appealed some of the decisions or instructions of the Government superintendent to the contracting" }, { "docid": "23632089", "title": "", "text": "faith, the courts have power to review it and set it aside. This court has this question presented to it constantly in cases arising under Government contracts, where the contracting of ficer and the head of the department are given the power to render final decisions on questions of fact. Both this Court and the Supreme Court have many times held that if the decision is arbitrary or capricious or so grossly erroneous as to imply bad faith, it will be set aside. See e. g. Burchell v. Marsh, 17 How. 344, 349, 15 L.Ed. 96; Kihlberg v. United States, 97 U.S. 398, 24 L.Ed. 1106; United States v. Gleason, 175 U.S. 588, 602, 20 S.Ct. 228, 44 L.Ed. 284; Ripley v. United States, 223 U.S. 695, 701, 32 S.Ct. 352, 56 L.Ed. 614. The court will not substitute its judgment for that of the administrative officer, but the employee nevertheless has the right to the honest judgment of the administrative officer. If that officer does not render an honest judgment but acts arbitrarily, capriciously or maliciously, then undoubtedly the rights of the employee have been violated. The plaintiff in this case alleges that he was discharged “without cause, wrongfully, illegally and maliciously.” If he was discharged maliciously and without cause, then he has been deprived of the rights which the Act of 1912 gave him, and he is entitled to maintain this suit under section 145 of the Judicial Code, sec. 250, Title 28 U.S.C.A., which gives this court power to render judgment upon a claim “founded upon * * * any law of Congress.” Defendant further says that plaintiff’s claim is barred by laches. We are unable to tell from the allegations of the petition whether or not this is so. Whether or not a claim is barred by laches depends upon the facts in each particular case. Norris v. United States, 257 U.S. 77, 81, 42 S.Ct. 9, 66 L.Ed. 136; Hearne v. United States, 107 Ct.Cl. 335, 401; Id., 331 U.S. 858, 67 S.Ct. 1752, 91 L.Ed. 1865. What the facts are in this case, insofar" }, { "docid": "22873544", "title": "", "text": "must be honestly rendered, and that if it is arbitrary or capricious, or rendered in bad faith, the courts have power to review it and set it aside. This court has this question presented to it constantly in cases arising under Government contracts, where the contracting officer and the head of the department are given the power to render final decisions on questions of fact. Both this Court and the Supreme Court have many times held that if the decision is arbitrary or capricious or so grossly erroneous as to imply bad faith, it will be set aside. See e. g. Burchell v. Marsh, 17 How. 344, 349, 15 L.Ed. 96; Kihlberg v. United States, 97 U.S. 398, 24 L.Ed. 1106; United States v. Gleason, 175 U.S. 588, 602, 20 S.Ct. 228, 44 L.Ed. 284; Bipley v. United States, 223 U.S. 695, 701, 32 S.Ct. 352, 56 L.Ed. 614. “The court will not substitute its judgment for that of the administrative officer, but the employee nevertheless has the right to the honest judgment of the administrative officer. If that officer does not render an honest judgment but acts arbitrarily, capriciously or maliciously, then undoubtedly the rights of the employee have been violated. “The plaintiff in this case alleges that he was discharged ‘without cause, wrongfully, illegally and maliciously.’ If he was discharged maliciously and without cause, then he has been deprived of the rights which the Act of 1912 gave him, and he is entitled to maintain this suit under section 145 of the Judicial Code, sec. 250, Title 28, U.S.C.A., which gives this court power to render judgment upon a claim ‘founded upon * * * any law of Congress.’ ” Our task in this case, therefore, is to determine whether or not plaintiff was discharged for the good of the service, or arbitrarily, or capriciously, or maliciously. Personnel disputes are hard to resolve. In undertaking to do so, we start out with the presumption that the official acted in good faith. We are always loath to find to the contrary, and it takes, and should take, well-nigh irrefragable" }, { "docid": "22374984", "title": "", "text": "why the parties to the contract should provide for final determination of such disputes by a method wholly separate from the fact-limited provisions of Art. 15. To hold that the parties did not so “intend” would be a distortion of the interpretative process. The language of Par. 2-16 is clear. No ambiguities can be injected into it by supportable reasoning. It states in language as plain as draftsmen could use that findings of the Secretary of War in disputes of the type here involved shall be “final and binding.” In reconsidering the questions decided by the designated agent of the parties, the Court of Claims was in error. Its judgment cannot stand. Reversed. Mr. Justice Douglas took no part in the consideration or decision of this case. “If the contractor considers any work demanded of him to be outside the requirements of the contract or if he considers any action or ruling of the contracting officer or of the inspectors to be unfair, the contractor shall without undue delay, upon such demand, action, or ruling, submit his protest thereto in writing to the contracting officer, stating clearly and in detail the basis of his objections. The contracting officer shall thereupon promptly investigate the complaint and furnish the contractor his decision, in writing, thereon. If the contractor is not satisfied with the decision of the contracting officer, he may, within thirty days, appeal in writing to the Secretary of War, whose decision or that of his duly authorized representative shall be final and binding upon the parties to the contract. . . .” Paragraph 2-16 of the specifications. “Disputes. — Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed.” Article 15 of the contract. These and other representations in" }, { "docid": "23632088", "title": "", "text": "the efficiency of the service, but if, on the other hand, he was motivated alone by malice toward the employee, there would seem to be but little doubt that the employee’s rights under the Act of 1912 have been violated. That Act says, that “no person in the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service.” If, as a matter of fact, he was removed not for a cause that promoted the efficiency of the service, but maliciously, merely because his superior did not like him, or merely because he wanted his job for some friend of his, then obviously the • employee’s discharge was wrongful and illegal and, therefore, he is entitled to recover whatever loss he may have suffered thereby. In innumerable cases it has been held that where discretion is conferred on an administrative officer to render a decision, this decision must be honestly rendered, and that if it is arbitrary or capricious, or rendered in bad faith, the courts have power to review it and set it aside. This court has this question presented to it constantly in cases arising under Government contracts, where the contracting of ficer and the head of the department are given the power to render final decisions on questions of fact. Both this Court and the Supreme Court have many times held that if the decision is arbitrary or capricious or so grossly erroneous as to imply bad faith, it will be set aside. See e. g. Burchell v. Marsh, 17 How. 344, 349, 15 L.Ed. 96; Kihlberg v. United States, 97 U.S. 398, 24 L.Ed. 1106; United States v. Gleason, 175 U.S. 588, 602, 20 S.Ct. 228, 44 L.Ed. 284; Ripley v. United States, 223 U.S. 695, 701, 32 S.Ct. 352, 56 L.Ed. 614. The court will not substitute its judgment for that of the administrative officer, but the employee nevertheless has the right to the honest judgment of the administrative officer. If that officer does not render an honest judgment but acts arbitrarily, capriciously" }, { "docid": "491816", "title": "", "text": "awarding the contract.” In Mitchell Canneries, Inc. v. United States, 111 Ct. Cl. 228, 247, 77 F. Supp. 498, 502, this court reaffirmed the “established principle of law” that where a contracting officer is designated to make certain findings of fact, such findings * * * are binding upon both tlie Government and the contractor if there is no fraud, gross error, or arbitrariness by the contracting officer amounting to bad faith * * * where the contracting officer acted fairly and impartially in making his findings and there is substantial evidence to support such findings, they should not be reversed. Recently, the U.S. Supreme Court stated: * * * this court has long ago upheld the validity of clauses in Government contracts delegating to a Government employee the authority to make determinations of disputed questions of fact, and required such determinations to be given conclusive effect in any subsequent suit in the absence of fraud or gross mistake implying fraud or bad faith. United States v. Carlo Bianchi, Inc., 373 U.S. 709, 713. In accordance with the direction contained in paragraph 7 (b) of the instructions to bidders, the contracting officer here determined that plaintiff’s telegraphic modification was timely. This appears from the abstract of bids which took account of the $55,555 increase in plaintiff’s bid and, even more clearly, from the document entitled “Findings of Fact and Recommendation of Award” which Lt. Colonel Joseph H. Sherrard, who was the contracting officer, submitted to the Chief of Engineers. In said document, the contracting officer stated explicitly: * * * it is believed that the low bidder has presented clear and convincing evidence that the telegraphic modification was filed in sufficient time to have been received by 2:00 P.M., and should be accepted. This statement by the contracting officer would seem to be conclusive. Defendant contends, however, that the above statement was not an ultimate finding by the contracting officer, but simply a recommendation to a higher authority, the Chief of Engineers. There is no support for defendant’s position that the Chief of Engineers in Washington was supposed to decide" }, { "docid": "7558941", "title": "", "text": "24 L.Ed. 1106 (1878); United States v. Gleason, 175 U.S. 588, 602, 35 Ct.Cl. 625, 20 S.Ct. 228, 44 L.Ed. 284 (1900); and Ripley v. United States, 223 U.S. 695, 701, 32 S.Ct. 352, 56 L.Ed. 614(1912)). An employee discharge case following this line of precedents, Knotts v. United States, 128 Ct.Cl. 489, 121 F.Supp. 630 (1954), stated without attribution that the Court “start[s] out with the presumption that the official acted in good faith,” and that “well-nigh irrefragable proof’ is needed to prove the absence of good faith. Knotts, 128 Ct.Cl. at 492, 121 F.Supp. 630. The subsequent development of the presumption of good faith springs from these two statements. The presumption, as stated in Knotts, seems to come, then, from the pre-Wunder-lich line of eases. Government contracts used to routinely contain clauses assigning the resolution of certain questions arising under them, usually of a factual nature, to a certain designated official — often the contracting officer or a supervising engineer, with an appeal to the department head. The Supreme Court had held that “in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment,” the official’s decision under such clauses would be “conclusive upon” both the contractor and the government. Kihlberg v. United States, 97 U.S. 398, 402 (1878). Thus, despite the discretionary and purportedly final nature of these decisions, the Court of Claims was able to exercise jurisdiction over challenges that met the Kihlberg standard, as that standard evolved over time. See, e.g., United States v. Gleason, 175 U.S. 588, 607 (1900) (re-statirig test as requiring “allegation and proof of bad faith, or of mistake or negligence so great, so gross, as to justify an inference of bad faith”); Ripley v. United States, 223 U.S. 695, 701-02, 32 S.Ct. 352 (1912) (recognizing “a corresponding duty that the agent’s judgment should be exercised — not capriciously or fraudulently, but reasonably and with due regard to the rights of both contracting parties”). Since the issue in these cases boiled down to whether a government official properly exercised" }, { "docid": "22542925", "title": "", "text": "Court which created an exception to the conclusiveness of such administrative decision. The same Article 15 of a government contract was before this Court recently, and we held, after a review of the authorities, that such Article was valid. United States v. Moorman, 338 U. S. 457. Nor was the Moor-man case one of first impression. Contracts, both governmental and private, have been before this Court in several cases in which provisions equivalent to Article 15 have been approved and enforced “in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment . . . .” Kihlberg v. United States, 97 U. S. 398, 402; Sweeney v. United States, 109 U. S. 618, 620; Martinsburg & P. R. Co. v. March; 114 U. S. 549, 553; Chicago, S. F. & C. R. Co. v. Price, 138 U. S. 185, 195. In Ripley v. United States, 223 U. S. 695, 704, gross mistake implying bad faith is equated to “fraud.” Despite the fact that other words such as “negligence,” “incompetence,” “capriciousness,” and “arbitrary” have been used in the course of the opinions, this Court has consistently upheld the finality of the department head’s decision unless it was founded on fraud, alleged and proved. So. fraud is in essence the exception. By fraud we mean conscious wrongdoing, an intention to cheat or be dishonest. The 'decision of the department head, absent fraudulent conduct, must stand under the plain meaning of the contract. If the decision of the department head finder Article 15 is to be set aside for fraud, fraud should be alleged and proved, as it is never presumed. United States v. Colorado Anthracite Co., 225 U. S. 219, 226. In the case at bar,’ there was no allegation of fraud. There was no finding of fraud nor request for such a finding. The finding of the Court of Claims was that the decision of the department head was “arbitrary,” “capricious,” and “grossly erroneous.” But these words are not the equivalent of fraud, the exception which this Court has" }, { "docid": "7558940", "title": "", "text": "decision. See Librach v. United States, 147 Ct.Cl. 605, 612, 1959 WL 7633 (1959). But this decision, as is discussed above, really concerned the presumption of regularity and not good faith. The duty that was presumed to have been “properly discharged” was the duty to obtain “knowledge of the material facts.” Chemical Foundation, 272 U.S. at 15, 47 S.Ct. 1. The Supreme Court expressly refused to question the exercise of the official’s judgment, see id., which is usually the nub of the matter when the good faith presumption is invoked. But this opinion is often reflexively cited without any explanation of its relevance. The second, and more substantial, source of the presumption appears to be the pre-Wunderlich line of cases concerning the exercise of discretion given by contract to certain government officials. The standard for reviewing discretionary employment decisions was borrowed from this line of cases, see Gadsden v. United States, 111 Ct.Cl. 487, 490, 78 F.Supp. 126 (1948) (adopting the rule from, inter alia, Kihlberg v. United States, 97 U.S. 398, 14 Ct.Cl. 582, 24 L.Ed. 1106 (1878); United States v. Gleason, 175 U.S. 588, 602, 35 Ct.Cl. 625, 20 S.Ct. 228, 44 L.Ed. 284 (1900); and Ripley v. United States, 223 U.S. 695, 701, 32 S.Ct. 352, 56 L.Ed. 614(1912)). An employee discharge case following this line of precedents, Knotts v. United States, 128 Ct.Cl. 489, 121 F.Supp. 630 (1954), stated without attribution that the Court “start[s] out with the presumption that the official acted in good faith,” and that “well-nigh irrefragable proof’ is needed to prove the absence of good faith. Knotts, 128 Ct.Cl. at 492, 121 F.Supp. 630. The subsequent development of the presumption of good faith springs from these two statements. The presumption, as stated in Knotts, seems to come, then, from the pre-Wunder-lich line of eases. Government contracts used to routinely contain clauses assigning the resolution of certain questions arising under them, usually of a factual nature, to a certain designated official — often the contracting officer or a supervising engineer, with an appeal to the department head. The Supreme Court had held that" }, { "docid": "12740260", "title": "", "text": "chief engineer would have to construe it against his employer (Sartoris v. Utah Construction Co., supra), it is apparent that the evidence intimating his bias against the contractor makes him an improper person for such legal adjudication and his decision not binding on the court — even assuming that such legal questions can be determined by the employee of one party in favor of that party’s interest when bound by a rule of legal interpretation against the employer’s interest. Compare North Pac. Const. Co. v. Wallowa County, 119 Or. 565, 249 P. 1100, considered infra. In United States v. Gleason, 1900, 175 U.S. 588, 20 S.Ct. 228, 44 L.Ed. 284, the Supreme Court upheld a contract pro vision giving to the engineer the final and conclusive right to determine the fact of the contractor’s conduct as warranting an extension of time beyond that agreed for the completion of the work, but stated the law to be that such finality existed only “in the absence of fraud or of mistake so gross as to necessarily imply bad faith.” United States v. Gleason, supra, 175 N.S. 588, 602, 20 S.Ct. 228, 233, 44 L.Ed. 284, cited in McCullough v. Clinch-Mitchell Const. Co., 1934, 8 Cir., 71 F.2d 17, 20, where at page 21 the kind of facts submitted are described. If an arbitrary, gross mistake defeats an express decision on disputed facts, a fortiori should it defeat the right to make a decision on a question of law by an engineer exercising a coercion on the contractor. Cross-Appeal of the Contractor. ' C. The contractor assigns error in the failure to allow interest on the award for his cause of action for the haul for bridge materials. Here, there was no dispute as to the character or amount of the materials hauled. The controversy involved a mere question of law in the interpretation of the contract. If determined one way, the amount due was fixed by one provision of the contract; if another, it was fixed by another set of prices in the contract. The District Court erred in not allowing interest" }, { "docid": "22873543", "title": "", "text": "in fact did not discharge the employee for a cause that would promote the efficiency of the service, but if, on the other hand, he was motivated alone by malice toward the employee, there would seem to be but little doubt that the employee’s rights under the Act of 1912 have been violated. That Act says, that ‘no person in the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service.’ [5 U.S.C.A. § 652]. If, as a matter of fact, he was removed not for a cause that promoted the efficiency of the service, but maliciously, merely because his superior did not like him, or merely because he wanted his job for some friend of his, then obviously the employee’s discharge was wrongful and illegal and, therefore, he is entitled to recover whatever loss he may have suffered thereby. “In innumerable cases it has been held that where discretion is conferred on an administrative officer to render a decision, this decision must be honestly rendered, and that if it is arbitrary or capricious, or rendered in bad faith, the courts have power to review it and set it aside. This court has this question presented to it constantly in cases arising under Government contracts, where the contracting officer and the head of the department are given the power to render final decisions on questions of fact. Both this Court and the Supreme Court have many times held that if the decision is arbitrary or capricious or so grossly erroneous as to imply bad faith, it will be set aside. See e. g. Burchell v. Marsh, 17 How. 344, 349, 15 L.Ed. 96; Kihlberg v. United States, 97 U.S. 398, 24 L.Ed. 1106; United States v. Gleason, 175 U.S. 588, 602, 20 S.Ct. 228, 44 L.Ed. 284; Bipley v. United States, 223 U.S. 695, 701, 32 S.Ct. 352, 56 L.Ed. 614. “The court will not substitute its judgment for that of the administrative officer, but the employee nevertheless has the right to the honest judgment of the" } ]

[ { "docid": "22076449", "title": "", "text": "have there given them an assigned value, strong proof must be adduced by them in order to overcome that declaration.” 264 F.2d 305, 308. The first case of importance in the Fifth Circuit is Barran v. C. I. R., 334 F.2d 58 (1964). There the Court applied the rule of the Second Circuit in the Ullman case. However, a reading of the second footnote in that case leaves it unclear whether the Court refused to apply the rule we have formulated or merely found it unnecessary to consider it under the facts of that case. Its findings suggest that the latter construction of the footnote is probable. See also Balthrope v. C. I. R., 356 F.2d 28 (5th Cir. 1966); Montesi v. C. I. R., 340 F.2d 97 (6th Cir. 1965). There are several cases in this field decided by the Ninth Circuit. The first is Rogers v. United States of America, 290 F.2d 501 (1961). There the Court affirmed the action of the trial court in refusing the covenantor’s request to go behind the covenant and the consideration allocated thereto. Explicit reliance was placed on Hamlin’s Trust v. Commissioner of Internal Revenue, 209 F.2d 761 (10th Cir. 1954), which we shall later consider. The Court noted that “Third parties may question the resolutions of parties to a contract, but in the absence of fraud it is not ordinarily open to the bargainers to do so.” 290 F.2d 501. The case of Schulz v. C. I. R., 294 F.2d 52 (9th Cir. 1961), is inapplicable be cause the attack on the consideration received for the covenant was made by the Commissioner. The next Ninth Circuit case is Annabelle Candy v. C. I. K, 314 F.2d 1 (1962). In that case the execution of a covenant was required by the terms of the agreement but no specific amount was allocated to the covenant on the face of the writing. There the taxpayer-purchaser was attempting to make an allocation for tax purposes, in contrast to the reverse situation here where the taxpayers are attempting to dispute an allocation for tax purposes. It" } ]

[ { "docid": "6744086", "title": "", "text": "been invoked when determining whether a party to a transaction may, in fairness, be held to its obligations arising thereunder. Whereas Balthrope refers to the situation in which one party, at the expense of the other, tax-ignorant, party slips a covenant into the contract, 356 F.2d at 31, 33-34, Dixie Finance, 474 F.2d at 504-05 and Sonnleitner, 598 F.2d at 467-68, place emphasis upon whether the covenants involved therein were given for value and were bargained for at arms length. Although, under the approach adopted in the foregoing cases, the absence of any relationship between “economic reality” and the agreement indeed may be strong evidence of mistake, fraud, overreaching, duress, or perhaps some other ground for equitable recission, such as inadequacy of consideration, those decisions simply do not elevate the “economic reality” inquiry to that of a talisman, and require the Commissioner to blind himself to other relevant factors. In none of those decisions did this Court allow a taxpayer, having voluntarily and at arms length bargained for a particular form of transaction, with complete foreknowledge of the tax consequences flowing therefrom, and having represented to the Commissioner that the chosen form reflected the true nature of the transaction, to disavow that form as a sham designed for the sole purpose of misleading the Commissioner, and, having already received substantial nontax benefits therefrom, adopt one with more favorable present tax consequences. Indeed, this Court in an analogous factual situation has strongly rejected the notion that a taxpayer may bind the Commissioner to a secret understanding as to the effect of an agreement. In Winn-Dixie Montgomery, Inc. v. United States, 444 F.2d 677 (5th Cir. 1971), taxpayer argued that because it did not intend to allocate any portion of the purchase price to goodwill, the Commissioner should be bound by that determination, absent a contrary expression in the agreement. This Court responded: No decision holds or suggests that such a one-sided, uncommunicated apportionment of a sales price is conclusive on the taxing authorities, and it is obvious that it would be dangerous and unfair to lay down that categorical rule. The" }, { "docid": "14739146", "title": "", "text": "as to the real sales price of each piece of property involved. The total purchase price was arrived at through arms length negotiation but the allocation of the selling price to the two pieces of property involved was not. Once the parties had agreed upon the purchase price it was a matter of indifference to the buyer as to how the seller allocated it. The argument that the valuation placed on the wine and the winery was of vital importance to Tiara because it necessarily affected its income tax position has no merit, that argument wholly ignores the crucial fact that the federal income tax is a graduated tax and a given transaction may have different consequences depending upon the circumstances of the particular taxpayer.” 212 F.2d at 500-501. See also Tombari v. Commissioner of Internal Revenue, 9 Cir. 1962, 299 F.2d 889, 892; Hamlin’s Trust v. Commissioner of Internal Revenue, 10 Cir. 1954, 209 F.2d 761; Cf. F & D Rentals, Inc. v. Commissioner of Internal Revenue, 7 Cir. 1966, 365 F.2d 34, 40, cert. den., 385 U.S. 1004, 87 S.Ct. 707, 17 L.Ed.2d 543; Kunz v. Commissioner of Internal Revenue, 6 Cir. 1964, 333 F.2d 456, 557; Meiselman v. Commissioner of Internal Revenue, 4 Cir. 1962, 300 F.2d 666, 668. A self-serving allocation of values must have some factual texture rather than mere embroidery. Although Blackstone Realty insisted upon separate consideration throughout the negotiations, the record substantiates the Tax Court’s finding that First Federal was concerned only with the sum of the components rather than the quantum of each integer. The sale of the assets and lease was a unity in fact and is not to be fissioned arbitrarily for tax savings. Even contractual allocations are not sacrosanct and beyond the pale of Commissioner inquiry and determination. Those parts of a transaction that the parties join, no taxpayer may put asunder. Affirmed. . The briefs also refer to the structure as the Mealier Building, after Augustine Meaher, whose estate held title to it. . The new lease covered a ten-year term with four ten-year options to renew. The" }, { "docid": "21490467", "title": "", "text": "comparable. As in that case, “here, we have substantial personal developmental activities, plus use of and sale to a controlled corporation which continued the development, plus some comparable purchases by taxpayer [s] of other real estate for development.” 356 F.2d at 547, 174 Ct.Cl. at -. These elements add up to an acquisition, holding and sale primarily in the ordinary course of a real estate business carried'on by plaintiff in his indi vidual capacity, with the aid of his controlled corporations. See, also, Engasser, v. Commissioner, 28 T.C. 1173 (1957). To reach this conclusion we do not disregard corporate entities or say that the business of plaintiff’s wholly-owned companies was automatically his business. It is established that, in determining the trade or business of an individual taxpayer, the business activities of his closely-held corporation will not be attributed to him (see, e.g., Whipple v. Commissioner of Internal Revenue, 373 U.S. 193, 83 S.Ct. 1168, 10 L.Ed.2d 288 (1963)), but it is also true that a taxpayer may be individually in the same business as his corporation, may make that business his own, or may utilize the company in his own business. It Í3 therefore appropriate, in circumstances such as these, to see whether the taxpayer uses his controlled company — for instance, as agent, co-participant, or joint venturer — to implement or further his own personal business, as he easily can. That type of inquiry has often been made by the courts, including this one, in cases testing (under § 117(a) of the 1939 Code or § 1221 of the 1954 Code) whether profit from a sale of property was ordinary income or capital gain. See Boeing v. United States, supra, 168 F.Supp. at 767-769, 144 Ct.Cl. at 84-87; Browne v. United States, supra; Burgher v. Campbell, supra, 244 F.2d at 864-865; Lakin v. Commissioner of Internal Revenue, 249 F.2d 781 (C.A.4, 1957); Kaltreider v. Commissioner of Internal Revenue, 255 F.2d 833, 836, 837, 838-839 (C.A.3, 1958); Bauschard v. Commissioner of Internal Revenue, 279 F.2d 115, 118 (C.A.6, 1960) (individual joint venturer); Heebner v. Commissioner of Internal Revenue, 280 F.2d" }, { "docid": "21490468", "title": "", "text": "corporation, may make that business his own, or may utilize the company in his own business. It Í3 therefore appropriate, in circumstances such as these, to see whether the taxpayer uses his controlled company — for instance, as agent, co-participant, or joint venturer — to implement or further his own personal business, as he easily can. That type of inquiry has often been made by the courts, including this one, in cases testing (under § 117(a) of the 1939 Code or § 1221 of the 1954 Code) whether profit from a sale of property was ordinary income or capital gain. See Boeing v. United States, supra, 168 F.Supp. at 767-769, 144 Ct.Cl. at 84-87; Browne v. United States, supra; Burgher v. Campbell, supra, 244 F.2d at 864-865; Lakin v. Commissioner of Internal Revenue, 249 F.2d 781 (C.A.4, 1957); Kaltreider v. Commissioner of Internal Revenue, 255 F.2d 833, 836, 837, 838-839 (C.A.3, 1958); Bauschard v. Commissioner of Internal Revenue, 279 F.2d 115, 118 (C.A.6, 1960) (individual joint venturer); Heebner v. Commissioner of Internal Revenue, 280 F.2d 228 (C.A.3, 1960), cert. denied, 364 U.S. 921, 81 S.Ct. 285, 5 L.Ed.2d 260; Patterson v. Belcher, 302 F.2d 289, 294, 297 (C.A.5, 1962), cert. denied, 371 U.S. 921, 83 S.Ct. 289, 9 L.Ed.2d 230; H-H Ranch, Inc. v. Commissioner of Internal Revenue, 357 F.2d 885 (C.A.7, 1966); Engasser v. Commissioner, supra, 28 T.C. 1173. That is what we do in this case, and why we consider it proper to take account of the nature and activities of the controlled companies, Cozy Cottages, Inc. and the Arlington Ridge Development Company, in deciding that plaintiff’s sales to them brought him ordinary income rather than capital gain. With respect to the sale to Lewis Leader, in October 1952, we have a different view. When plaintiff purchased the River Ridge land early in 1950, he may have intended to develop and sell all or most of it. But we judge that by the time of the organization of the Arlington Ridge Development Company in September 1951, plaintiff had probably narrowed his development objectives to the 100 or 102" }, { "docid": "15751788", "title": "", "text": "“WHEREAS, competitors of Battelstein’s, Inc. have already obtained locations in such area in anticipation of the area’s growth (more particularly Federated Department Stores) ; and “WHEREAS, upon the expansion by Battelstein’s, Inc. of its business, it is expected that favorable investment opportunities will be presented to this company in any one or more of the following forms (i) the purchase of land and the construction of a store building for leasing to Battelstein’s, Inc., (ii) the purchase of fixtures and leasing and renting of the same to Battelstein’s, Inc., (iii) the purchase by Battelstein’s, Inc. of existing properties and the sale of the same to this company and the lease-back by this company of the same to Battelstein’s, Inc.; and “WHEREAS, the above anticipated investment opportunities will require substantial capital on the part of this company in order to take advantage of the same— “BE IT RESOLVED: That no dividend be declared on stock of this company at this time in order to conserve the cash and cash equivalent position of the company to take advantage of anticipated investment opportunities; “BE IT FURTHER RESOLVED: That the Board of Directors recognize that prudent management dictates the investment of the company’s funds to produce income, provided that such investment should be temporary and short term in nature and readily convertible into cash so that funds so invested may be made available when opportunities to the company are presented.” . See, e. g., Henry Van Hummell, Inc., v. Commissioner of Internal Revenue, 364 F.2d 746 (10 C.A.1966), cert. denied, 386 U.S. 956, 87 S.Ct. 1019, 18 L.Ed.2d 102 (1967); Sterling Distributors, Inc. v. United States, 313 F.2d 803 (5 C.A. 1963) . Treas.Regs.Secs. 1.537-1 (b) ; 1.537-2 (b) (1). See also Mertens, supra, Sec. 39.38. . See, e, g., Mead’s Bakery, Inc., v. Commissioner of Internal Revenue, 364 F.2d 101 (5 C.A.1966); Carlen Realty Co. v. Tomlinson, 345 F.2d 998 (5 C.A.1965); Young Motor Co. v. Commissioner of Internal Revenue, 339 F.2d 481 (1 C.A.1964); Barrow Mfg. Co. v. Commissioner of Internal Revenue, 294 F.2d 79 (5 C.A.1961), cert. denied, 369 U.S. 817," }, { "docid": "23377629", "title": "", "text": "future period of the arrangement was “entirely unascertainable.” 263 F.2d at 559. A claimed depreciation deduction was dis allowed for a somewhat different reason in Klein v. Commissioner, 2 Cir. 1966, 372 F.2d 261. Taxpayer furnished exterminating and pest-control services, and he expanded his business by buying the accounts of other exterminators. His attempt to depreciate the cost of those purchases was thwarted when he failed to satisfy § 167 (a)’s requirement that he establish the cost basis of the asset. Each of these cases represents the failure of a given taxpayer to carry his burden of bringing his claim within the factual borders that would support an amortization deduction — none rules that the asset involved is per se non-amortizable. Some intangible capital assets are, of course, non-amortizable as a matter of law, with the most frequently litigated example being the “goodwill” of an ongoing business. Treasury Regulation § 1.167(a)-3 specifically provides, “No deduction for depreciation is allowable with respect to goodwill,” and the cases are consistent in applying that regulation strictly. E. g., Winn-Dixie Montgomery, Inc. v. United States, 5 Cir. 1971, 444 F.2d 677; United States v. Cornish, 9 Cir. 1965, 348 F.2d 175; Dodge Brothers, Inc. v. United States, 4 Cir. 1941, 118 F.2d 95. Indeed, .this proposition is so well settled that the only question litigated in recent years regarding this area of the law is whether a particular asset is “goodwill.” We have previously spoken at length to the question of what constitutes goodwill: “[T]he nature of goodwill . is the expectancy that 'the old customers will resort to the old place.’ Commissioner of Internal Revenue v. Killian, 314 F.2d 852, 855 (C.A.5, 1963) ; Nelson Weaver Realty Co. v. Commissioner of Internal Revenue, 307 F.2d 897, 901 (C.A.5, 1962); Karan v. Commissioner of Internal Revenue, 319 F.2d 303, 306 (C.A.7, 1963). ‘[T]he essence of goodwill is the expectancy of continued patronage, for whatever reason.’ Boe v. Commissioner of Internal Revenue, 307 F.2d 339, 343 (C.A.9, 1962) .... [T]o the extent [a given item or asset] contributes to the expectancy that the old customers" }, { "docid": "23377630", "title": "", "text": "Winn-Dixie Montgomery, Inc. v. United States, 5 Cir. 1971, 444 F.2d 677; United States v. Cornish, 9 Cir. 1965, 348 F.2d 175; Dodge Brothers, Inc. v. United States, 4 Cir. 1941, 118 F.2d 95. Indeed, .this proposition is so well settled that the only question litigated in recent years regarding this area of the law is whether a particular asset is “goodwill.” We have previously spoken at length to the question of what constitutes goodwill: “[T]he nature of goodwill . is the expectancy that 'the old customers will resort to the old place.’ Commissioner of Internal Revenue v. Killian, 314 F.2d 852, 855 (C.A.5, 1963) ; Nelson Weaver Realty Co. v. Commissioner of Internal Revenue, 307 F.2d 897, 901 (C.A.5, 1962); Karan v. Commissioner of Internal Revenue, 319 F.2d 303, 306 (C.A.7, 1963). ‘[T]he essence of goodwill is the expectancy of continued patronage, for whatever reason.’ Boe v. Commissioner of Internal Revenue, 307 F.2d 339, 343 (C.A.9, 1962) .... [T]o the extent [a given item or asset] contributes to the expectancy that the old customers will resort to the old place it is an element of goodwill. Commissioner of Internal Revenue v. Seaboard Finance Co., 367 F.2d 646, 651 n. 6 (C.A.9, 1966); Boe v. Commissioner of Internal Revenue, supra, 307 F.2d at 343. “This Court has held that . goodwill is acquired by the purchaser of a going concern where the ‘transfer enables the purchaser to step into the shoes of the seller.’ Balthrope v. Commissioner of Internal Revenue, 356 F.2d 28, 32 n. 1 ([C.A.5] 1966); Masquelette’s Estate v. Commissioner of Internal Revenue, 239 F.2d 322, 325 ([C.A.5] 1956). We have also said that goodwill is transferred where, as here, the buyer continues the seller’s business uninterrupted, using primarily the seller’s employees, and utilizing the seller’s name. Barran v. Commissioner of Internal Revenue, supra, 334 F.2d 58, 61 ([C.A.5] 1964). It is immaterial that the agreement did not use the term ‘goodwill,’ for ‘[t]he use of these words is, of course, not necessary if in fact what is transferred does give to the purchaser everything that can effectively" }, { "docid": "14739145", "title": "", "text": "our own, looked past illusory paper valuations. We quote from that opinion: “It is recognized that a taxpayer is free to employ any legal means in the conduct of his business affairs to avoid or minimize taxes, but the means employed must not be mere subterfuge or sham. Commissioner of Internal Revenue v. Tower, 1946, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670; Nordling v. Commissioner of Internal Revenue, 9 Cir. 1948, 166 F.2d 703, certiorari denied 335 U.S. 817, 69 S.Ct. 38, 93 L.Ed. 372. “The determination of whether the written contract reflected the real agreement between the parties was a question of fact and the Tax Court’s finding with respect thereto is final if based upon substantial evidence. Commissioner of Internal Revenue v. Tower, 1946, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670. We find substantial evidence in this case to support the Tax Court’s conclusion that the substance of the transaction was a sale of the wine and winery for a total price of $350,000 without any bona fide agreement as to the real sales price of each piece of property involved. The total purchase price was arrived at through arms length negotiation but the allocation of the selling price to the two pieces of property involved was not. Once the parties had agreed upon the purchase price it was a matter of indifference to the buyer as to how the seller allocated it. The argument that the valuation placed on the wine and the winery was of vital importance to Tiara because it necessarily affected its income tax position has no merit, that argument wholly ignores the crucial fact that the federal income tax is a graduated tax and a given transaction may have different consequences depending upon the circumstances of the particular taxpayer.” 212 F.2d at 500-501. See also Tombari v. Commissioner of Internal Revenue, 9 Cir. 1962, 299 F.2d 889, 892; Hamlin’s Trust v. Commissioner of Internal Revenue, 10 Cir. 1954, 209 F.2d 761; Cf. F & D Rentals, Inc. v. Commissioner of Internal Revenue, 7 Cir. 1966, 365 F.2d 34, 40," }, { "docid": "15466082", "title": "", "text": "a family and family-owned corporations are closely scrutinized. It is also well settled that the substance of the transaction, rather than its form, is controlling. Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 89 L.Ed. 981; Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596; Consumers Credit Rural Cooperative Corp. v. Commissioner of Internal Revenue, 319 F.2d 475, 478 (C.A. 6); Gooding Amusement Co. v. Commissioner of Internal Revenue, 236 F.2d 159 (C.A. 6), cert. denied, 352 U.S. 1031, 77 S.Ct. 595, 1 L.Ed.2d 599. “[W]hile numerous criteria may exist as guide lines helpful in making the final factual determination as to the true character for tax purposes of a transaction, no single factor can be decisive.” Moughon v. Commissioner of Internal Revenue, 329 F.2d 399, 401 (C.A. 6). In Wilbur Security Company v. Commissioner of Internal Revenue, 279 F.2d 657, 662 (C.A. 9) and Kruse Grain and Milling Company v. Commissioner of Internal Revenue, 279 F.2d 123, 125-126 (C.A. 9), the court set forth eleven factors to be applied in determining whether amounts paid by a corporation to individuals constitute dividends and not deductible interest, including the intent of the parties, capitalization, payments of interest only, and “whether or not the corporation could have obtained loans from outside lending institutions.” In the present case the Tax Court drew its inference as to the true character of the transaction from (1) the thin capitalization of petitioner and the high ratio of debt to equity, (2) the fact that petitioner never made any payments on the principal of Mrs Osborn’s $200,000 note, and (3) the action of Mrs. Osborn in subordinating her note in 1953 to the insurance company’s $150,-000 first mortgage, an act which hardly could have been anticipated from an outside lending institution in an arms-length transaction. We hold that this inference was drawn reasonably from the evidence and is not “clearly erroneous.” Petitioner lays strong emphasis upon the fact that*Mrs. Osborn was never a shareholder of petitioner corporation, and relies upon the principle that a corporation cannot pay" }, { "docid": "15751789", "title": "", "text": "advantage of anticipated investment opportunities; “BE IT FURTHER RESOLVED: That the Board of Directors recognize that prudent management dictates the investment of the company’s funds to produce income, provided that such investment should be temporary and short term in nature and readily convertible into cash so that funds so invested may be made available when opportunities to the company are presented.” . See, e. g., Henry Van Hummell, Inc., v. Commissioner of Internal Revenue, 364 F.2d 746 (10 C.A.1966), cert. denied, 386 U.S. 956, 87 S.Ct. 1019, 18 L.Ed.2d 102 (1967); Sterling Distributors, Inc. v. United States, 313 F.2d 803 (5 C.A. 1963) . Treas.Regs.Secs. 1.537-1 (b) ; 1.537-2 (b) (1). See also Mertens, supra, Sec. 39.38. . See, e, g., Mead’s Bakery, Inc., v. Commissioner of Internal Revenue, 364 F.2d 101 (5 C.A.1966); Carlen Realty Co. v. Tomlinson, 345 F.2d 998 (5 C.A.1965); Young Motor Co. v. Commissioner of Internal Revenue, 339 F.2d 481 (1 C.A.1964); Barrow Mfg. Co. v. Commissioner of Internal Revenue, 294 F.2d 79 (5 C.A.1961), cert. denied, 369 U.S. 817, 82 S.Ct. 827, 7 L.Ed.2d 783 (1962). . See, e. g., Henry Van Hummell, Inc. v. Commissioner of Internal Revenue, supra, n. 13; Dixie, Inc. v. Commissioner of Internal Revenue, 277 F.2d 526 (2 C.A.), cert. denied, 364 U.S. 827, 81 S.Ct. 62, 5 L.Ed.2d 54 (1960); I. A. Dress Co. v. Commissioner of Internal Revenue, 273 F.2d 543 (2 C.A.), cert. denied, 362 U.S. 976, 80 S.Ct. 1060, 4 L.Ed.2d 1011 (1960); Smoot Sand & Gravel Corp. v. Commissioner of Internal Revenue, 241 F.2d 197 (4 C.A.), cert. denied, 354 U.S. 922, 77 S.Ct. 1383, 1 L.Ed.2d 1437 (1957). . See supra at 322. . The expansion projects considered by the taxpayer between 1957 and 1968 can be summarized as follows: Fiscal Year Ending Project 1-31-57 Bellaire 1-31-58 1-31-59 Meyerland; Northline; Westheimer Rd. 1-31-60 Sharpstown 1-31-61 1-31-62 1-31-63 1-31-64 1-31-65 1-31-66 Almeda-Genoa; Northwest 1-31-67 <( <C H 1-31-68 Town & Country . The failure to consult with an architect during the critical period is significant in light of Ben Battelstein’s testimony that: “We wouldn’t" }, { "docid": "15751790", "title": "", "text": "82 S.Ct. 827, 7 L.Ed.2d 783 (1962). . See, e. g., Henry Van Hummell, Inc. v. Commissioner of Internal Revenue, supra, n. 13; Dixie, Inc. v. Commissioner of Internal Revenue, 277 F.2d 526 (2 C.A.), cert. denied, 364 U.S. 827, 81 S.Ct. 62, 5 L.Ed.2d 54 (1960); I. A. Dress Co. v. Commissioner of Internal Revenue, 273 F.2d 543 (2 C.A.), cert. denied, 362 U.S. 976, 80 S.Ct. 1060, 4 L.Ed.2d 1011 (1960); Smoot Sand & Gravel Corp. v. Commissioner of Internal Revenue, 241 F.2d 197 (4 C.A.), cert. denied, 354 U.S. 922, 77 S.Ct. 1383, 1 L.Ed.2d 1437 (1957). . See supra at 322. . The expansion projects considered by the taxpayer between 1957 and 1968 can be summarized as follows: Fiscal Year Ending Project 1-31-57 Bellaire 1-31-58 1-31-59 Meyerland; Northline; Westheimer Rd. 1-31-60 Sharpstown 1-31-61 1-31-62 1-31-63 1-31-64 1-31-65 1-31-66 Almeda-Genoa; Northwest 1-31-67 <( <C H 1-31-68 Town & Country . The failure to consult with an architect during the critical period is significant in light of Ben Battelstein’s testimony that: “We wouldn’t build a doghouse without an architect.” . Treas.Regs. Sec. 1.537-2 (c). . See supra at p. 323. The total consideration paid for the two pieces of property was $708,189. This figure represents a significant percentage of the approximately two million dollars spent by the taxpayer on all capital assets since its inception. . Under Section 535(c) (3) an affirmative resolution of the mere holding company issue would also limit the taxpayer to an accumulated earnings credit of no more than $100,000. Since the instant taxpayer had accumulated earnings prior to the two years in question well in ex cess of $100,000 (see n. 5 supra), such an affirmative resolution would deny plaintiff any additional credit. . American Metal Products Corp. v. Commissioner of Internal Revenue, 287 F.2d 860 (8 C.A.1961); Kerr-Cochran, Inc. v. Commissioner of Internal Revenue, 253 F.2d 121 (8 C.A.1958), and cases cited therein at 124; Egan, Inc. v. Commissioner of Internal Revenue, 236 E.2d 343 (8 C.A.1956); Medical Arts Hospital v. Commissioner of Internal Revenue, 141 E.2d 404 (5 C.A.1944). . See" }, { "docid": "9336032", "title": "", "text": "suspect, because of its repeated emphasis on the Commissioner’s discretion under Sec. 41 of the 1939 Code and Sec. 446 of the 1954 Code, and the legislative history of Secs. 452 and 462, that the majority of the Supreme Court stand for the principle that, absent statutory sanction for it, unless the taxpayer can show that the Commissioner clearly abused his discretion in disallowing deferral of prepaid income or accrual of estimated future expenses, this exercise of the Commissioner’s discretion will not be disturbed by the Court even though the taxpayer’s method of accounting is in accord with generally accepted principles of commercial accounting. We also suspect that this principle, if such it be, will meet with some resistance in the courts. See the dissenting opinions of Mr. Justice Stewart in American Automobile Assn. v. United States, 367 U.S. 687, 698, 81 S.Ct. 1727, 6 L.Ed.2d 1109 (1961) and Schlude v. Commissioner of Internal Revenue, 372 U.S. 128, 137, 83 S.Ct. 601, 9 L.Ed.2d 633 (1963), and the opinions of various Courts of Appeals in Bressner Radio, Inc. v. Commissioner of Internal Revenue, 267 F.2d 520 (C.A.2, 1959), reversing and remanding 28 T.C. 378 (1957), Beacon Publishing Co. v. Commissioner of Internal Revenue, 218 F.2d 697 (C.A.10, 1955) , reversing 21 T.C. 610 (1954), Schuessler v. Commissioner of Internal Revenue, 230 F.2d 722 (C.A.5, 1956) , reversing 24 T.C. 247 (1955), and Pacific Grape Prod. Co. v. Commissioner of Internal Revenue, 219 F. 2d 862 (C.A.9, 1955), reversing 17 T.C. 1097 (1952). The application of such a principle to the facts here would certainly require a decision for respondent on this issue. Simplified Tax Records, Inc. v. Commissioner, 41 T.C. 75, 81, n. 4 (1963). The question remains: Was there reasonable basis for the Commissioner’s action in this case ? It appears to us there was ample basis. The most salient feature in this case is the fact that many or possibly most of the expenses which taxpayer wishes to presently deduct will not actually be paid for 15, 20 or even 30 years (the taxpayer has not attempted to" }, { "docid": "7542875", "title": "", "text": "physical assets of the seller and the covenant not to compete. From the extrinsic facts plus the terms of the contract, an intention to allocate and the amount thereof were determined. This court has found no cases from appellate courts in which a deduction has been allowed for the amortization of a covenant not to compete where there was no intent to allocate consideration to the covenant. See, e. g., Schulz v. Commissioner of Internal Revenue, 294 F.2d 52 (9th Cir. 1961); Commissioner of Internal Revenue v. Gazette Tel. Co., 209 F.2d 926 (10th Cir. 1954). Cf. e. g., Montesi v. Commissioner of Internal Revenue, 340 F.2d 97 (6th Cir. 1965); Barran v. Commissioner of Internal Revenue, 334 F.2d 58 (5th Cir. 1964); Levine v. Commissioner of Internal Revenue, 324 F.2d 298 (3rd Cir. 1963); Ullman v. Commissioner of Internal Revenue, supra. As Circuit Judge Wisdom wrote in Balthrope v. Commissioner of Internal Revenue, supra, 356 F.2d at 34: “No one has to arrange his business affairs to satisfy the tax collector’s appetite for revenues. But when a taxpayer has failed to arrange his affairs so as to minimize his taxes, he cannot expect the court to do it for him nunc pro tunc. * * * ” Moreover, in Hamlin’s Trust v. Commissioner of Internal Revenue, 209 F.2d 761, 765 (10th Cir. 1954), which involved an attempt by the taxpayers to extract themselves from an apparently definitive written allocation, Judge Bratton wrote: “ * * * where parties enter into an agreement with a clear understanding of its substance and content, they cannot be heard to say later that they overlooked possible tax consequences. * * *» Donnelley here seeks to import terms into its agreement with Case, Shepperd, and Mann which are neither explicit nor implied. There was no intention between the parties that the allocation which Don-nelley would include should be part of the agreement. The various estimates of the value of the covenant not to compete given by plaintiff’s witnesses in the present case are no more than estimates. They do not indicate an intention of" }, { "docid": "23377631", "title": "", "text": "will resort to the old place it is an element of goodwill. Commissioner of Internal Revenue v. Seaboard Finance Co., 367 F.2d 646, 651 n. 6 (C.A.9, 1966); Boe v. Commissioner of Internal Revenue, supra, 307 F.2d at 343. “This Court has held that . goodwill is acquired by the purchaser of a going concern where the ‘transfer enables the purchaser to step into the shoes of the seller.’ Balthrope v. Commissioner of Internal Revenue, 356 F.2d 28, 32 n. 1 ([C.A.5] 1966); Masquelette’s Estate v. Commissioner of Internal Revenue, 239 F.2d 322, 325 ([C.A.5] 1956). We have also said that goodwill is transferred where, as here, the buyer continues the seller’s business uninterrupted, using primarily the seller’s employees, and utilizing the seller’s name. Barran v. Commissioner of Internal Revenue, supra, 334 F.2d 58, 61 ([C.A.5] 1964). It is immaterial that the agreement did not use the term ‘goodwill,’ for ‘[t]he use of these words is, of course, not necessary if in fact what is transferred does give to the purchaser everything that can effectively aid him to step into the shoes of the seller.’ Masquelette’s Estate v. Commissioner of Internal Revenue, supra, at 325; see also Barron v. Commissioner of Internal Revenue, supra, at 61. . . .” Winn-Dixie Montgomery, Inc. v. United States, supra, 444 F.2d at 681-682. Thus, the precise issue is often whether or not the asset involved is either ordinary goodwill or so much like goodwill that the reasons for denying amortiza tion deductions for goodwill are fully applicable. Foremost among those reasons is the conclusive presumption that goodwill is a non-depreciating capital asset. See, e. g., Id.; Golden State Towel & Linen Service, Ltd. v. United States, 1967, 373 F.2d 938, 179 Ct.Cl. 300. Viewed in a business context, the economic value of a taxpayer’s continuing goodwill within his field of operations is seen as an ongoing asset that fluctuates but does not necessarily diminish. The crucial question becomes one of asking whether the intangible capital asset involved necessarily possesses similar characteristics. Many reported cases apply this analytical approach. Clark Thread Co. v. Commissioner," }, { "docid": "15256891", "title": "", "text": "all other assets, including goodwill, and susceptible to separate valuation.” 7 T.C. at 1170. See also Nice Ball Bearing Co., 5 B.T.A. 484 (1926); Commissioner of Internal Revenue v. Seaboard Finance Co., supra. Other courts using their own and somewhat different terminology have uniformly reached the same result. Thus, in Strauss v. United States, supra, the District Court used the term “goodwill” in a hybrid sense speaking of the goodwill attached to a particular franchise but clearly specified what was meant by its terminology and reached the same result as the previous cases holding the aggregate of the intangible value of the business to be divisible. See also Webster Investors, Inc. v. Commissioner of Internal Revenue, supra; Metropolitan Laundry Co. v. United States, 100 F.Supp. 803 (N.D.Cal.1951). The short of the matter is that when plaintiff acquired the operating assets of KPHO and KPHO-TY it acquired, among other things, television network affiliation contracts which were separate, identifiable and distinct assets which were susceptible of separate valuation and when it lost these network contracts, it lost separate, distinct and identifiable assets. Defendant disputed this before the commissioner but does not do so here. It is clear, of course, that no deduction is allowable for an indivisible asset until the whole asset is lost. E. g., Golden State Towel & Linen Service Ltd. v. United States, 373 F.2d 938, 179 Ct.Cl. 300 (1967); Boe v. Commissioner of Internal Revenue, 307 F.2d 339 (9th Cir. 1962); Dodge Brothers v. United States, 118 F.2d 95 (4th Cir. 1941). See also Note, Tax Treatment of Losses Incurred on the Sale or Abandonment of Purchased Goodwill, 62 Yale L.J. 640 (1953). But this has nothing to do with deductibility for the loss of a separate, distinct and readily identifiable intangible asset such as a network contract (or a lease, franchise, option, etc.). Upon the loss of such an intangible, a deduction is properly allowable. Parmelee Transportation Co. v. United States, supra, 351 F.2d 626, 173 Ct.Cl. at 150, and cases cited. Again proceeding on the premise that the asset in question is a specific item of" }, { "docid": "14376836", "title": "", "text": "a right to have us do it for him now. Hamlin’s Trust v. Commissioner of Internal Revenue, 10 Cir. 1954, 209 F.2d 761; Cf. Rogers v. United States, 9 Cir. 1961, 290 F.2d 501. As a last resort, the taxpayers ask that the Court allocate a smaller portion of the purchase price to the consulting, non-competition agreement than they agreed to with Gay. We decline to undertake this difficult task when there is no strong proof that the parties’ separately stated and valued agreement is a sham. The judgment is affirmed. . The parties’ contract does not speak of a sale of corporate goodwill and the Balthropes mainly argue that the payments allocated to the covenant were actually payments for the stock rather than payments for goodwill. But because the parties omit to mention goodwill does not mean it was not actually conveyed if in fact the transfer enables the purchaser “to step into the shoes of the seller”. See Estate of Masquelette v. Commissioner of Internal Revenue, 5 Cir. 1956, 239 F.2d 322, 325. . However, Balthrope also admitted that he was anxious to sell to Gay because he' thought he could get a better price from the first taker. RIVES, Circuit Judge (dissenting): I cannot escape the conclusion that the amount of $150,000.00 to be paid by Gay to Balthrope under the contract of May 24, 1958, was actually a part of the purchase price of Balthrope’s stock in KITE, Inc., and was not really a payment for a covenant not to compete and for consulting services. The sale started as a sale of the assets of the radio station. No one estimated the value of those assets at less than $400,000.00. In the opinion of the brokers, Stubblefield and Landis, the value was between $400,000.00 and $450,-000.00. Gay originally offered $400,-000.00 for the assets and Balthrope accepted that offer. Gay later suggested that Balthrope take $150,000.00 of the $400,000.00 “as a covenant not to compete, or consulting contract, or any way you want to do it.” At that time Bal-thrope was without any tax advisor. He was" }, { "docid": "14389292", "title": "", "text": "On this record, we agree with that conclusion. In particular, when we put the developmental activities undertaken by the taxpayers before they sold the tract to Housing (their controlled corporation) together with other similar dealings of theirs involving Housing or other controlled companies, we find that this transaction fell outside of the provisions of the Internal Revenue Code of 1954 (Section 1221) permitting capital gains treatment of gains realized on the sale of certain property. See Bauschard v. Commissioner of Internal Revenue, supra, at p. 118; Kaltreider v. Commissioner of Internal Revenue, 255 F.2d 833, 838-839 (C.A. 3, 1958); Engasser v. Commissioner, 28 T.C. 1173 (1957 ). The decisions which plaintiffs cite as close to this case are readily distinguishable. In Gordy v. Commissioner, 36 T.C. 855 (1961), involving sales to controlled corporations, there was no showing of personal activities by the taxpayer-stockholder equivalent to the platting, subdividing, installation of streets, and utility arrangements in this case. Conversely, in Wagner v. Dudley, 58-2 U.S. Tax Cas. ¶ 9589 (W.D.Pa., May 27, 1958), the taxpayers did not control the vendee corporation. In Thomas v. Commissioner of Internal Revenue, 254 F.2d 233 (C.A. 5, 1958), the taxpayers neither controlled the purchasing company nor engaged in extensive developmental activities preliminary to the sale. Here, we have substantial personal developmental activities, plus use of and sale to a controlled corporation which continued the development, plus some comparable purchases by taxpayers of other real estate for development. The plaintiffs are not entitled to recover and their petitions are dismissed. . Property held for sale to a single customer can meet the requirements of Section 1221(1). Nielsen v. United States, 333 F.2d 615 (C.A.6, 1964); Patterson v. Belcher, 302 F.2d 289, 294 (C.A.5, 1962), cert. denied, 371 U.S. 921, 83 S.Ct. 289, 9 L.Ed.2d 230; Jantzer v. Commissioner of Internal Revenue, 284 F.2d 348 (C.A. 9, 1960); Pennroad Corp. v. Commissioner of Internal Revenue, 261 F.2d 325, 330 (C.A.3, 1958), cert. denied, 359 U.S. 958, 79 S.Ct. 797, 3 L.Ed.2d 766." }, { "docid": "6744081", "title": "", "text": "See Sonnleitner v. Commissioner of Internal Revenue, 598 F.2d at 467 n.9; Dixie Finance Co., Inc. v. United States, 474 F.2d at 505 n.4. In Barran v. Commissioner of Internal Revenue, 334 F.2d 58, 63 (5th Cir. 1964), this Court first applied the “strong proof” rule, as enunciated in Ullman v. Commissioner, 264 F.2d 305 (2d Cir. 1959). In Barran, taxpayer attempted to disavow a contractual allocation to a covenant not to compete. Holding that taxpayer had failed to adduce “strong proof,” this Court refused to disregard the covenant. In Balthrope v. Commissioner of Internal Revenue, 356 F.2d 28, 31 (5th Cir. 1966), this Court reviewed its earlier decision in Bar-ran and stated the rule as adopted therein as “whether the payments allocated to the covenant not to compete are in fact payments for something else.” This Court also noted in Balthrope that courts generally honor parties’ agreements to allocate their tax consequences in a certain manner, but will not do so when the covenant is without “economic reality,” citing Schulz v. Commissioner of Internal Revenue, 294 F.2d 52 (9th Cir. 1961) or was “slipped into a sales contract for tax purposes by one party to the disadvantage of a tax ignorant party.” 356 F.2d at 31, 33. Dixie Finance Company, Inc. v. United States, 474 F.2d 501 (5th Cir. 1973) involved two separate transactions, called the “Stewart” transaction and the “Empire” transaction. In the Stewart transaction, this Court affirmed the Tax Court’s determination that a covenant not to compete, which accounted for $526,150 of the total $650,000 purchase price, and which taxpayers alleged was neither bargained for nor was based upon economic reality, should be disregarded in its entirety. In so holding, the Tax Court found that the agreement did not constitute an enforceable contract not to compete. This Court affirmed the Tax Court’s decision, but found it unnecessary to address the Commissioner’s argument that this Court should adopt the Danielson rule. 474 F.2d at 505 n.4. In the Empire transaction, this Court was called upon to determine which of two contractual allocations should be upheld. The Court noted" }, { "docid": "6744087", "title": "", "text": "foreknowledge of the tax consequences flowing therefrom, and having represented to the Commissioner that the chosen form reflected the true nature of the transaction, to disavow that form as a sham designed for the sole purpose of misleading the Commissioner, and, having already received substantial nontax benefits therefrom, adopt one with more favorable present tax consequences. Indeed, this Court in an analogous factual situation has strongly rejected the notion that a taxpayer may bind the Commissioner to a secret understanding as to the effect of an agreement. In Winn-Dixie Montgomery, Inc. v. United States, 444 F.2d 677 (5th Cir. 1971), taxpayer argued that because it did not intend to allocate any portion of the purchase price to goodwill, the Commissioner should be bound by that determination, absent a contrary expression in the agreement. This Court responded: No decision holds or suggests that such a one-sided, uncommunicated apportionment of a sales price is conclusive on the taxing authorities, and it is obvious that it would be dangerous and unfair to lay down that categorical rule. The whole trend of the law in this area is against binding the Revenue Service by such a secret, unilateral, subjective allocation which is not carried over into the agreement. 444 F.2d at 682; citing, inter alia, Commissioner of Internal Revenue v. Danielson, 378 F.2d at 771; Balthrope v. Commissioner of Internal Revenue, 356 F.2d at 31-32, 34. The above-quoted admonition is particularly appropriate in the present case, and we adhere to the principle expressed therein. IV. Having determined that the Tax Court applied an incorrect test in determining whether taxpayer should be allowed to challenge the form of the transaction as agreed to by the parties, we now turn to the Commissioner’s argument that the proper test to be applied on remand is that enunciated in Commissioner of Internal Revenue v. Danielson, 378 F.2d 771 (3d Cir.), cert. denied, 389 U.S. 858, 88 S.Ct. 94, 19 L.Ed.2d 123 (1967). At the outset, we note that several policy considerations ar gue for application of the Danielson rule. First, as the court recognized in Danielson, “the presumed" }, { "docid": "12249425", "title": "", "text": "articles of incorporation. Its relevance appears fairly obvious and elementary to us. If the Government were made to believe that Foster was only a minor stockholder, it would naturally look with less suspicion on his withdrawals from the corporation’s bank account. Until this appeal, moreover, Foster thought the issue relevant enough, as attested to by his repeated disavowals of majority stock ownership. . Tax Ct.R. 32. . E. g., Herbert v. Commissioner of Internal Revenue, 377 F.2d 65 (9th Cir. 1966); Stout v. Commissioner of Internal Revenue, 273 F.2d 345 (4th Cir. 1959); Clark v. Commissioner of Internal Revenue, 266 F.2d 698 (9th Cir. 1959). If the Commissioner introduces no further proof, the case will be decided for the taxpayer. Herbert v. Commissioner of Internal Revenue, supra; Weir v. Commissioner of Internal Revenue, 283 F.2d 675 (6th Cir. 1960). . E. g., Hoffman v. Commissioner of Internal Revenue, 298 F.2d 784 (3d Cir. 1962); Clark v. Commissioner of Internal Revenue, 266 F.2d 698 (9th Cir. 1959); Anderson v. Commissioner of Internal Revenue, 250 F.2d 242 (5th Cir. 1957), cert. denied, 356 U.S. 950, 78 S.Ct. 915, 2 L.Ed.2d 844 (1958). . The entire paragraph reads as follows: “Petitioners’ reliance upon Weir v. Commissioner of Internal Revenue, 283 F.2d 675 (C.A. 6), does not require contrary result. The opinion in that case did not indicate that it represented a departure from the general rule reflected in the foregoing cases, and it must be deemed to rest upon its special facts including the Taxpayer’s clear and uncontradicted testimony that he had never received any personal benefit from the checks in question. The record in the present case contains no such credible evidence.\" (Emphasis added.) Foster asserts .that the italicized passages show that the Tax Court required him “ * * * to negate that any benefit was derived from the New York corporate account rather than show the tax liability determined by the Commissioner to be erroneous.” We cannot agree that this was the intention of the Tax Court, since the taxpayer in Weir testified that he had never received personal benefit" } ]

[ { "docid": "19951450", "title": "", "text": "has a legitimate expectation of privacy....” Id. at 114, 104 S.Ct. 1652. As in Place, the Court’s discussion in Ja-cobsen implies that it considers the term “property” to be coextensive with the term “effects.” See id. at 113, 104 S.Ct. 1652 (explaining that “[a] ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property”). Jacobsen, and the cases which preceded it, could be read to protect certain person al property only insofar as the possessor had a legitimate privacy expectation in that property, but in Soldal v. Cook County, Ill., 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), the Court clarified that the Fourth Amendment’s protections extend to property in which there is no particular privacy or liberty interest. “We thus are unconvinced that any of the Court’s prior cases supports the view that the Fourth Amendment protects against unreasonable seizures of property only where privacy or liberty is also implicated.” Id. at 65, 113 S.Ct. 538; see also id. at 62, 113 S.Ct. 538 (noting that “our cases unmistakably hold that the [Fourth] Amendment protects property as well as privacy”). Soldal thereby removed a potentially significant restriction on the types of property which the Fourth Amendment protects. The Court did state that “the [Fourth] Amendment does not protect pos-sessory interests in all kinds of property,” id. at 62 n. 7, 113 S.Ct. 538, but the only example the Court gave of a case involving an unprotected possessory interest was its decision in Oliver v. United States. In Oliver, the Court held only that open fields are not “effects” within the meaning of the Fourth Amendment, reaffirming Justice Holmes’ opinion in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). See Oliver, 466 U.S. at 176, 104 S.Ct. 1735. As discussed above, the Court also stated that the Framers would have understood the term “effects” to reference personal, as opposed to real, property. Id. at 177 n. 7, 104 S.Ct. 1735. Thus, the Supreme Court’s cases appear to treat the scope of “effects” as congruent" } ]

[ { "docid": "5478079", "title": "", "text": "requirements of due process are notice and an opportunity to present reasons why “a proposed action should not be taken”). A party cannot create a due process claim by ignoring established procedures. “The availability of recourse to a constitutionally sufficient administrative procedure satisfies due process requirements if the complainant merely declines or fails to take advantage of the administrative procedure.” Dusanek v. Hannon, 677 F.2d 538, 542-43 (7th Cir.1982). In this case, Mr. Santana was provided with notice of the City’s proposed action and was offered an opportunity for a hearing. He declined to initiate an administrative appeal. The district court properly entered summary judgment on Mr. Santana’s procedural due process claim. Mr. Santana’s remaining constitutional claim is that the City’s removal of the computer components from his backyard violated his Fourth Amendment right to be free from unreasonable seizures. He does not assert that the City’s viewing of his backyard to investigate a nuisance complaint amounted to an illegal search. “A ‘seizure’ of property ... occurs when ‘there is some meaningful interference with an individual’s possessory interests in that property.’” Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). The Fourth “Amendment’s protection applies in the civil context,” id. at 67, 113 S.Ct. 538, and is not confined to “seizures that are the outcome of a search,” id. at 68, 113 S.Ct. 538. “Whether the Amendment was in fact violated is, of course, a different question that requires determining if the seizure was reasonable.” Id. at 61-62, 113 S.Ct. 538. “[Numerous seizures of this type will survive constitutional scrutiny.... [T]he reasonableness determina tion will reflect a ‘careful balancing of governmental and private interests.’ ” Id. at 71, 113 S.Ct. 538 (quoting New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)). The circuit courts have analyzed the legality of municipal nuisance proceedings under the Soldal reasonableness guidelines. The Fifth Circuit “balanced] the public and private interests at stake” by weighing the municipality’s" }, { "docid": "8183909", "title": "", "text": "a cause of action with regard to the seizure of either the dog or the person, or both. A. Seizure of the Dog The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated_” U.S. Const. Amend. IV. Seizures of property are subject to Fourth Amendment scrutiny even though no search within the meaning of the Amendment has taken place. Soldal v. Cook County, — U.S.-,-, 113 S.Ct. 538, 546, 121 L.Ed.2d 450 (1992). A “seizure” of property occurs, within the meaning of the Fourth Amendment, when “there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). The destruction of property is “meaningful interference” constituting a seizure under the Fourth Amendment, Jacobsen, 466 U.S. at 124-25, 104 S.Ct. at 1662-63; Bonds v. Cox, 20 F.3d 697, 701-02 (6th Cir.1994), because the destruction of property by state officials poses as much of a threat, if not more, to people’s right to be “secure ... in their effects” as does the physical taking of them. See Tarpley v. Greene, 684 F.2d 1, 9 (D.C.Cir.1982). The Fullers’ amended complaint alleged that the officers’ killing of their dog constituted a Fourth Amendment seizure. A dog is an “effect” or “property” which can be seized. See Lesher v. Reed, 12 F.3d 148, 150 (8th Cir.1994). The killing of the dog is a destruction recognized as a seizure under the Fourth Amendment, and thus, the district court abused its discretion when it denied the Fullers’ motion to amend on the grounds that the shooting of the dog was not a cognizable claim under the Fourth Amendment. We conclude that the Fullers have adequately alleged a cause of action under the Fourth Amendment for the killing of their dog in the proposed amended complaint, and therefore, the motion to amend should have been granted. The affidavits submitted by the Fullers alleging the factual background are sufficient to" }, { "docid": "11918098", "title": "", "text": "S.Ct. 1868, 20 L.Ed.2d 889 (1968) (other citation omitted)). In turn, a “seizure” of property occurs “when there is some meaningful interference with an individual’s possessory interests in that property.” Jacobsen, 466 U.S. at 113-14 n. 5, 104 S.Ct. 1652 (citing see U.S. v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); see also Hale v. Henkel, 201 U.S. 43, 76, 26 S.Ct. 370, 50 L.Ed. 652 (1906) (other citations omitted)). Moreover, at the very core of the Fourth Amendment “ ‘stands the right of a man to retreat into his own home.’ ” Soldal v. Cook County, Ill., 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (quoting Silverman v. US., 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) (other citations omitted)). In other words, “[o]ne’s home is sacrosanct, and unreasonable government intrusion into the home is ‘the chief evil against which the wording of the Fourth Amendment is directed.’ ” U.S. v. Zimmerman, 277 F.3d 426, 431 (3d Cir. 2002) (quoting Payton v. N.Y., 445 U.S. 573, 585-86, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quoting U.S. v. U.S. Dist. Court for the E. Dist. of Mich., 407 U.S. 297, 313, 92 5.Ct. 2125, 32 L.Ed.2d 752 (1972))). Under the facts of the present case, it is clear that a “search” and “seizure,” as defined by the United States Supreme Court, occurred. Consequently, the issues here are whether the Fourth Amendment to the United States Constitution is applicable to a bankruptcy trustee’s search and seizure of a debtor’s residence and, if so, whether the Trustee’s conduct in this instance was unreasonable and, therefore, violative of the Debtor’s Fourth Amendment rights. It is fundamental that the protections stemming from the Fourth Amendment to the United States Constitution only proscribe governmental action. See Jacobsen, 466 U.S. at 113, 104 S.Ct. 1652 (citation omitted). Therefore, the Fourth Amendment is “wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official.’" }, { "docid": "23228049", "title": "", "text": "under the Fifth Amendment’s Takings Clause does not bar her from bringing a Fourth Amendment seizure claim. B. The district court alternatively held that no seizure had occurred here because Presley was not “completely deprived ... of her possessory interests in her property.” But a deprivation need not be this severe to constitute a seizure subject to constitutional protections. Rather, the Fourth Amendment also governs temporary or partial seizures. See United States v. Place, 462 U.S. 696, 705, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (“The intrusion on possessory interests occasioned by a seizure of one’s personal effects can vary both in its nature and extent.”); Pepper v. Village of Oak Park, 430 F.3d 805, 809 (7th Cir.2005) (noting that “substantial damage to [a] couch” was a seizure); United States v. Gray, 484 F.2d 352, 356 (6th Cir.1973) (holding that temporarily removing rifles from a closet to copy down their serial numbers was a seizure). In fact, the Supreme Court has held that a seizure of property occurs whenever “there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Presley has alleged an “interference with” her “possessory interests” that is clearly “meaningful”; indeed, this interference has assertedly been disruptive, stressful, and invasive. Her complaint states that she has been deprived of the use of part of her property due to the regular presence of a veritable army of trespassers who freely and regularly traverse her yard, littering, making noise, damaging her land, and occasionally even camping overnight. This constant physical occupation certainly constitutes a “meaningful interference” with Presley’s “posses-sory interests” in her property. Of course, it is private individuals, not City officials, who have actually interfered with Presley’s possessory interests here. Although private actions generally do not implicate the Fourth Amendment, when a private person acts “as an agent of the Government or with the participation or knowledge of any governmental official,” then the private person’s acts are attributed to the government. Jacobsen, 466 U.S. at 113, 104 S.Ct. 1652 (internal quotation" }, { "docid": "23228048", "title": "", "text": "applies to the seizure. Like the lower court in Soldal, the dissent here worries that applying the Fourth Amendment to seizures of real property would lead to “unworkable” results. Compare post at 18, 20, with Soldal, 942 F.2d at 1077. But the Supreme Court in Soldal expressly rejected this concern, explaining why it is appropriate to subject even seizures for a public purpose to constitutional scrutiny. Soldal pointed out that because “reasonableness” is still the “ultimate” Fourth Amendment standard, numerous seizures of the “type” in Soldal, including those pursuant to a court order, “will survive constitutional scrutiny,” since a “showing of unreasonableness” in such circumstances will be a “laborious task in deed.” Soldal, 506 U.S. at 71, 113 S.Ct. 538. Thus, the Soldal Court itself rejected the dissent’s theory: a seizure for a public purpose may well be reasonable and so “survive constitutional scrutiny” under the Fourth Amendment, but an allegation that a seizure was for a public purpose does not somehow eliminate Fourth Amendment scrutiny. Put simply, that Presley may also have a claim under the Fifth Amendment’s Takings Clause does not bar her from bringing a Fourth Amendment seizure claim. B. The district court alternatively held that no seizure had occurred here because Presley was not “completely deprived ... of her possessory interests in her property.” But a deprivation need not be this severe to constitute a seizure subject to constitutional protections. Rather, the Fourth Amendment also governs temporary or partial seizures. See United States v. Place, 462 U.S. 696, 705, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (“The intrusion on possessory interests occasioned by a seizure of one’s personal effects can vary both in its nature and extent.”); Pepper v. Village of Oak Park, 430 F.3d 805, 809 (7th Cir.2005) (noting that “substantial damage to [a] couch” was a seizure); United States v. Gray, 484 F.2d 352, 356 (6th Cir.1973) (holding that temporarily removing rifles from a closet to copy down their serial numbers was a seizure). In fact, the Supreme Court has held that a seizure of property occurs whenever “there is some meaningful interference with" }, { "docid": "5200572", "title": "", "text": "court employs.” Feathers, 319 F.3d at 848 (citing Hope v. Pelzer, 536 U.S. 730, 740-41, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). a. Constitutional Violation The Hensleys claim that the Deputies’ participation in Gassman’s repossession violated the Fourth Amendment by transforming the repossession into an unreasonable seizure. The Fourth Amendment’s prohibition of unreasonable seizures extends to seizures of property regardless of whether the possessor has a privacy interest in the property. See Soldal v. Cook Cnty., 506 U.S. 56, 62-63, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (noting that “our cases unmistakably hold that the Amendment protects property as well as privacy”); United States v. Deitz, 577 F.3d 672, 687 (6th Cir.2009) (“The Fourth Amendment protects a person’s right to his personal property without interference from the police absent consent or reasonable suspicion or probable cause that a crime has been, will be, or is being committed.”). Property is seized “when ‘there is some meaningful interference with an individual’s possessory interests in that property.’” Soldal, 506 U.S. at 61, 113 S.Ct. 538 (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct.. 1652, 80 L.Ed.2d 85 (1984)). A constitutional violation occurs only where the seizure is objectively unreasonable, United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), a determination that entails a “careful balancing of governmental and private interests.” Soldal, 506 U.S. at 71, 113 S.Ct. 538 (quoting New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)). Gassman sought to repossess the Hensleys’ Buick pursuant to section 9-609(2) of Michigan’s version of the Uniform Commercial Code, which authorizes a creditor to use self-help, i.e., without a court order, to repossess collateral if it can be accomplished without breaching the peace. See M.C.L. § 440.9609(2) (allowing “a secured party [to] proceed ... without judicial process if it proceeds without breach of the peace”); Ansley v. Conseco Fin. Servicing Corp., No. 232266, 2002 WL 31955217, at *2 (Mich.Ct.App. Dec. 17, 2002) (per curiam) (“In Michigan, a secured party to a retail installment contract may avail itself of self-help repossession" }, { "docid": "5231488", "title": "", "text": "and seizures. Specifically, the Fourth Amendment provides that “[t]he right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” U.S. Const, amend. IV. The Supreme Court has established that one of the purposes of the prohibition on unreasonable seizures of property is the protection of the individual’s property rights in the seized item. See Soldal v. Cook County, Ill., 506 U.S. 56, 62-63, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (holding that the Fourth Amendment “protects property as well as privacy”). However, the courts have yet to define the breadth of the Fourth Amendment’s protection of property. Cf. United States v. Jacobsen, 466 U.S. 109, 113 n. 5, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (noting that “the concept .of a ‘seizure’ of property is not much discussed in [Supreme Court] cases”). Whatever the breadth of Fourth Amendment 'protection of property interests, that protection is limited to the breadth of the meaning of the word “seizure” in the Fourth Amendment. The Supreme Court has defined “seizure.” For Fourth Amendment purposes a “ ‘seizure’ of property ... occurs when ‘there is some meaningful interference with an individual’s possessory interests in that property.’ ” Soldal v. Cook County, Ill., 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (Stevens, J.)); cf. Texas v. Brown, 460 U.S. 730, 747, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring in judgment) (“The [Fourth] Amendment protects two different interests of the citizen — the interest in retaining possession of property and the interest in maintaining personal privacy.” (emphasis added)). Applying the Soldal seizure definition to the facts of this case, we find that no unreasonable seizure occurred when the defendants refused to return Fox’s driver’s license to him. Fox is challenging a refusal" }, { "docid": "6299164", "title": "", "text": "amendment’s use of the term “seizure” as “some meaningful interference with an individual’s possessory interests in [his] property.” Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (citing United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). Thus, James holds two interests protected by the Fourth Amendment that were implicated by the seizure of the safe and the subsequent search: (1) his privacy interest in the contents of the safe; and (2) his right to possess the safe. See United States v. Ward, 144 F.3d 1024, 1031 (7th Cir.1998). James’s privacy interest in the contents of the safe is not at issue in this case. After law enforcement officers removed the safe from James’s mother’s home, they obtained a search warrant before opening and searching the safe, and James does not challenge that search. Only James’s interest in possessing his safe free from government seizure is at issue. In the typical case, a “seizure of personal property [will be] per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.” United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). However, because the Fourth Amendment, at bottom, prohibits only “unreasonable” seizures, the Supreme Court has recognized that a balancing must take place, and that there are instances where societal interests outweigh the individual’s right to be free from the government’s unauthorized exercise of dominion over his private property. Id at 701-03, 103 S.Ct. 2637; Jacobsen, 466 U.S. at 125, 104 S.Ct. 1652. For instance, if “law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant,” seizure of the property is permitted “pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” Place, 462 U.S. at 701, 103 S.Ct. 2637. Here, the" }, { "docid": "5231491", "title": "", "text": "which we discussed above. See, e.g., Soldal, 506 U.S. at 70, 113 S.Ct. 538; Bonds v. Cox, 20 F.3d 697, 702 (6th Cir.1994). The Supreme Court has only applied the “meaningful interference with possessory interests” definition of seizure to eases where there is no debate that the challenged act is one of taking property away from an individual and the issue is whether that act of taking property away constitutes a meaningful interference with possessory interests. The instant case presents an issue that precedes the work performed by the Supreme Court’s Soldal definition of seizure—the issue of whether the government actor’s action can be characterized as a seizure in the sense of taking away property from its owner. Put another way, the Fourth Amendment protects an individual’s interest in retaining possession of property but not the interest in regaining possession of property. Cf. Brown, 460 U.S. at 747, 103 S.Ct. 1535 (Stevens, J., concurring in judgment) (“The [Fourth] Amendment protects two different interests of the citizen—the interest in retaining possession of property and the interest in maintaining personal privacy.” (emphasis added)); Thomas K. Clancy, What Does the Fourth Amendment Protect: Property, Privacy, or Security?, 33 Wake Forest L. Rev. 307, 356 (1998) (arguing that the Fourth Amendment’s prohibition on unreasonable seizures as defined in Soldal protects “the individual’s] ... right to remain in possession” of property); see also Soldal, 506 U.S. at 63, 113 S.Ct. 538 (citing J. Stevens’s opinion in Brown as support for its definition of a seizure); Jacobsen, 466 U.S. at 109 & n. 5, 104 S.Ct. 1652 (same). Once that act of taking the property is complete, the seizure has ended and the Fourth Amendment no longer applies. Our holding that no seizure occurred here is limited to the situation before us— an initial, lawful seizure of a piece of property followed by a refusal to return that property. We need not address either whether the term “seizure” in the-Fourth Amendment has a different temporal scope when a person rather than property is at issue, or whether a “seizure” occurs when a person voluntarily gives a" }, { "docid": "23006212", "title": "", "text": "interest in the contents of that container undisturbed, therefore mandating that a warrant be obtained before opening that container and searching it. Id. at 749-50, 103 S.Ct. 1535. This distinction between property and privacy interests, the Sixth Circuit in Fox noted, was later recognized by a majority of the Supreme Court in Soldal. Fox, 176 F.3d at 350 (citing Soldal, 506 U.S. at 62-63, 113 S.Ct. 538 (recognizing that the Fourth Amendment “protects property as well as privacy”)). And since the Soldal majority had cited Justice Stevens’s Brown concurrence, the Fox court implied that the Court also had Justice Stevens’s particular phrasing of that property interest in mind when defining the term “seizure” as a “meaningful interference with a possessory interest.” Id. at 351. Assigning precedential value to this phrasing is problematic. As an initial matter, there is little in Justice Stevens’s concurring opinion in Brown to suggest that he had a temporal restriction in mind when he described the property interest. Accord California v. Hodari D., 499 U.S. 621, 632-34, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (Stevens, J., dissenting) (arguing against strict literal construction of the term “seizure”). To the contrary, the analysis is consistent with the notion that an individual’s Fourth Amendment rights do not dissipate upon the loss of physical possession — at the very least, Justice Stevens believed an individual’s privacy interests in their property may remain intact despite dispossession. And although the Soldal court may have cited Justice Stevens’s Brown concurrence, as well as his majority opinion in United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), for the proposition that the amendment serves to protect dual interests of privacy and possession, nothing in that opinion suggests that the adoption of the distinction subsumed as well the conception of that possessory interest as one of retention. But this is not to suggest that there aren’t other justifications for reaching the same conclusion as the Fox and Jakobetz courts. First, we cannot overlook the text of the amendment, which states that it protects the right “to be secure” in" }, { "docid": "3085876", "title": "", "text": "Samuels were provided adequate procedural protection pri- or to destruction of the building. Meriwether and Garrett acted in accordance with the Board’s resolution issued pursuant to a noticed hearing. Garrett’s multiple inspections of the outside of the property were sufficient to assess whether the Samuels had complied with that part of the resolution pertaining to the outside of the building. After Garrett and Meriwether determined that the Samuels had not complied with the resolution, the City carried out demolition pursuant to the Board’s resolution. The Samuels were not entitled to any further notice under the law. No violation of procedural due process occurred. IV. Fourth Amendment The Samuels contend that the City’s seizure of their property violated the Fourth Amendment. In Soldal v. Cook County, Illinois, the Supreme Court held that a “seizure” of property occurs when “there is some meaningful interference with an individual’s possessory interests in that property.” 506 U.S. 56, 61, 113 S.Ct. 538, 543, 121 L.Ed.2d 450 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984)). According to Soldal, in determining whether a government seizure violates the Fourth Amendment, the seizure must be examined for its overall reasonableness. 506 U.S. at 71, 113 S.Ct. at 549 (“ ‘reasonableness is still the ultimate standard’ under the Fourth Amendment”) (citations omitted). The analysis must be based upon a careful balancing of governmental and private interests. Soldal, 506 U.S. at 71, 113 S.Ct. at 549. Defendants argue that if the government provides procedural due process of law, nothing more must be done to satisfy the reasonableness requirement of the Fourth Amendment. Flatford v. City of Monroe, 17 F.3d 162, 170 (6th Cir.1994) (interpreting Soldal) (eviction from apartment). We disagree. We think that the Supreme Court’s ruling in Soldal requires more. To collapse the Fourth Amendment reasonableness standard into the Fourteenth Amendment notice and hearing requirements in all cases is to ignore Soldal. When a Fourth Amendment claim is brought, we need to conduct an independent review of the seizure for reasonableness in addition to any analysis regarding procedural due process." }, { "docid": "19951522", "title": "", "text": "of the incidents. See Figg v. Schroeder, 312 F.3d at 635-36. The Supreme Court made it clear more than a decade ago that an individual’s personal property is an “effect” for purposes of Fourth Amendment analysis. See Soldal v. Cook County, 506 U.S. 56, 62, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (holding that “orn-eases unmistakably hold that the [Fourth] Amendment protects property as well as privacy”). As the majority observes, the State of North Carolina has recognized an individual’s property interest in his dog at least since 1838. See Dodson v. Mock, 20 N.C. 282. In short, the majority’s -extensive and thorough analysis demonstrates that it has long been “clearly established” that dogs are “effects” for the purposes of Fourth Amendment analysis, and an individual has the right to be free from the unconstitutional seizure of his dog. See ante, at 200-204. “A ‘seizure’ of property occurs where there is some meaningful interference with an individual’s possessory interests in that property.” Soldal, 506 U.S. at 63, 113 S.Ct. 538 (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). Plainly, it would be a waste of words to inquire into whether the complete and irremediable destruction of an individual’s property affects a “meaningful interference” with a person’s right to the use, possession, and enjoyment of that property. When officers kill a dog, they have undoubtedly “seized” it from its owner. The only unresolved question, therefore, is whether the unreasonableness of the seizures in the present case would have been sufficiently apparent to the officers to put them on notice that their actions were unconstitutional. “In determining whether a right is clearly established, we may rely upon cases of controlling authority in the jurisdiction in question, or a ‘consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.’ ” Rogers v. Pendleton, 249 F.3d 279, 287 (4th Cir.2001) (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). While there is no Supreme Court or Fourth Circuit case directly" }, { "docid": "11918097", "title": "", "text": "place to be searched, and the persons or things to be seized. U.S. Const, amend. IV. Without doubt, “the central concern of the Fourth Amendment is to protect liberty and privacy from arbitrary and oppressive interference by government officials.” U.S. v. Ortiz, 422 U.S. 891, 895, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975) (citing Camara v. Mun. Court of the City & County of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (other citation omitted)). As the text of the Fourth Amendment plainly provides, individuals are protected from an “unreasonable” search or seizure, or both. Under the Fourth Amendment, a “search” occurs “when an expectation of privacy that society is prepared to consider reasonable is infringed.” U.S. v. Jacobsen, 466 U.S. 109, 113-14 n. 4, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (citing see Ill. v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983); U.S. v. Knotts, 460 U.S. 276, 280-281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983); Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (other citation omitted)). In turn, a “seizure” of property occurs “when there is some meaningful interference with an individual’s possessory interests in that property.” Jacobsen, 466 U.S. at 113-14 n. 5, 104 S.Ct. 1652 (citing see U.S. v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); see also Hale v. Henkel, 201 U.S. 43, 76, 26 S.Ct. 370, 50 L.Ed. 652 (1906) (other citations omitted)). Moreover, at the very core of the Fourth Amendment “ ‘stands the right of a man to retreat into his own home.’ ” Soldal v. Cook County, Ill., 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (quoting Silverman v. US., 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) (other citations omitted)). In other words, “[o]ne’s home is sacrosanct, and unreasonable government intrusion into the home is ‘the chief evil against which the wording of the Fourth Amendment is directed.’ ” U.S. v. Zimmerman, 277 F.3d 426, 431 (3d Cir. 2002) (quoting Payton v. N.Y., 445" }, { "docid": "1052521", "title": "", "text": "23, 30, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” In Soldal v. Cook County, a § 1983 case, the Supreme Court reiterated that the Fourth Amendment applies to civil cases, 506 U.S. 56, 67, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), and protects property interests, id. at 62-63, 113 S.Ct. 538, but not all types of property, id. at 63 n. 7, 113 S.Ct. 538 (citing Oliver v. United States, 466 U.S. 170, 176-77, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (open fields not protected by Fourth Amendment)). The property in Soldal was the plaintiffs mobile home, a “house,” which the Court noted was explicitly included by the text of the Fourth Amendment. Id. So too, we think, that Pepper’s couch and television set are personal “effects” protected by the Fourth Amendment. See Oliver, 466 U.S. at 177 n. 7, 104 S.Ct. 1735 (explaining that the framers would have understood “effects” to refer to personal, rather than real, property); Altman v. City of High Point, 330 F.3d 194, 200-01 (4th Cir.2003) (collecting authority). Having found that Pepper’s property is of the type protected by the Fourth Amendment, we turn to whether Pepper’s effects were seized. “A ‘seizure’ of property ... occurs when ‘there is some meaningful interference with an individual’s possessory interests in that property.’ ” Soldal, 506 U.S. at 61, 113 S.Ct. 538 (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). In Soldal, the Court held that the forcible removal of the plaintiffs mobile home, leaving him dispossessed, constituted a seizure. Id. at 61, 113 S.Ct. 538. The interference which Pepper incurred— the permanent taking of her television and the substantial damage to her couch, while each was secured in her residence — likewise amounts to a “seizure” under the Fourth Amendment. But before we analyze whether the seizure was unreasonable, Pepper must satisfy her burden of proving state action. This she cannot do. The" }, { "docid": "19951449", "title": "", "text": "334, 336-37, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). While Place obviously does not hold that the term “effects” is coterminous with the universe of personal property, the Court’s discussion does suggest that all seizures of personal property are subject to the Fourth Amendment’s requirements. See Place, 462 U.S. at 701, 103 S.Ct. 2637 (stating that “the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized”). In United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Court considered whether a wrapped parcel containing cocaine, which was intercepted during shipment, was an “effect.” The Court held that “[w]hen the wrapped parcel ... was delivered to the private freight carrier, it was unquestionably an ‘effect’ within the meaning of the Fourth Amendment. Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy....” Id. at 114, 104 S.Ct. 1652. As in Place, the Court’s discussion in Ja-cobsen implies that it considers the term “property” to be coextensive with the term “effects.” See id. at 113, 104 S.Ct. 1652 (explaining that “[a] ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property”). Jacobsen, and the cases which preceded it, could be read to protect certain person al property only insofar as the possessor had a legitimate privacy expectation in that property, but in Soldal v. Cook County, Ill., 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), the Court clarified that the Fourth Amendment’s protections extend to property in which there is no particular privacy or liberty interest. “We thus are unconvinced that any of the Court’s prior cases supports the view that the Fourth Amendment protects against unreasonable seizures of property only where privacy or liberty is also implicated.” Id. at 65, 113 S.Ct. 538; see also id. at 62, 113 S.Ct. 538" }, { "docid": "5231489", "title": "", "text": "Whatever the breadth of Fourth Amendment 'protection of property interests, that protection is limited to the breadth of the meaning of the word “seizure” in the Fourth Amendment. The Supreme Court has defined “seizure.” For Fourth Amendment purposes a “ ‘seizure’ of property ... occurs when ‘there is some meaningful interference with an individual’s possessory interests in that property.’ ” Soldal v. Cook County, Ill., 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (Stevens, J.)); cf. Texas v. Brown, 460 U.S. 730, 747, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring in judgment) (“The [Fourth] Amendment protects two different interests of the citizen — the interest in retaining possession of property and the interest in maintaining personal privacy.” (emphasis added)). Applying the Soldal seizure definition to the facts of this case, we find that no unreasonable seizure occurred when the defendants refused to return Fox’s driver’s license to him. Fox is challenging a refusal to return a piece of property that occurred over four months after the county actors came across the license, took possession of it, and stored it. Soldal and the other Supreme Court cases addressing seizures of property all concern state actors’ role in taking possession of property. We hold that the seizure in this case, a seizure of property pursuant to an unchallenged inventory search that occurred over four months prior to the refusal to return the property, ended well before defendants Hartrum and Van Oosterum refused to return Fox’s license. The refusal to return the license here neither brought about an additional seizure nor changed the character of the August 1993 seizure from a reasonable one to an unreasonable one because the seizure was already complete when the defendants refused to return the license. If Fox was complaining about both an illegal initial seizure of the license and an illegal refusal to return it, he would have both a Fourth Amendment claim and at least the first step toward a procedural due process claim," }, { "docid": "1052520", "title": "", "text": "S.Ct. 1348, 89 L.Ed.2d 538 (1986). In other words, summary judgment can be awarded only if no rational trier of fact could find for the non-moving party. Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir. 2003). B. Pepper’s Claim Against Officer Do-naire To recover under § 1983, Pepper must prove that Donaire deprived her of a federal right while acting under color of state law. 42 U.S.C. § 1983; see Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). The federal right Pepper asserts is her right to property as protected by the Fourth Amendment. It is undisputed that Donaire “acted” under color of state law and that Redd by himself did not. At issue here is whether Donaire was sufficiently involved with Redd to render Pepper’s alleged injury to be caused by state action. At the outset, we must determine whether Pepper has a constitutionally protected right at stake. The Fourth Amendment, made applicable to the states by the Fourteenth Amendment, Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” In Soldal v. Cook County, a § 1983 case, the Supreme Court reiterated that the Fourth Amendment applies to civil cases, 506 U.S. 56, 67, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), and protects property interests, id. at 62-63, 113 S.Ct. 538, but not all types of property, id. at 63 n. 7, 113 S.Ct. 538 (citing Oliver v. United States, 466 U.S. 170, 176-77, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (open fields not protected by Fourth Amendment)). The property in Soldal was the plaintiffs mobile home, a “house,” which the Court noted was explicitly included by the text of the Fourth Amendment. Id. So too, we think, that Pepper’s couch and television set are personal “effects” protected by the Fourth Amendment. See Oliver, 466 U.S. at 177 n. 7, 104 S.Ct. 1735 (explaining that the framers would have" }, { "docid": "1052522", "title": "", "text": "understood “effects” to refer to personal, rather than real, property); Altman v. City of High Point, 330 F.3d 194, 200-01 (4th Cir.2003) (collecting authority). Having found that Pepper’s property is of the type protected by the Fourth Amendment, we turn to whether Pepper’s effects were seized. “A ‘seizure’ of property ... occurs when ‘there is some meaningful interference with an individual’s possessory interests in that property.’ ” Soldal, 506 U.S. at 61, 113 S.Ct. 538 (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). In Soldal, the Court held that the forcible removal of the plaintiffs mobile home, leaving him dispossessed, constituted a seizure. Id. at 61, 113 S.Ct. 538. The interference which Pepper incurred— the permanent taking of her television and the substantial damage to her couch, while each was secured in her residence — likewise amounts to a “seizure” under the Fourth Amendment. But before we analyze whether the seizure was unreasonable, Pepper must satisfy her burden of proving state action. This she cannot do. The protections of the Fourth Amendment apply only to governmental action and are “wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’ ” Jacobsen, 466 U.S. at 113-14, 104 S.Ct. 1652 (quoting Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (Blackmun, J., dissenting)). Pepper admits it was Redd, a private actor, who seized her property. Pepper argues Do-naire was sufficiently connected to Redd to transform Redd’s private seizure into a public seizure by allegedly serving as a “look-out” for Redd and by standing by, despite allegedly knowing that Redd was stealing and damaging her property, and allowing Redd to leave. To support her “look-out” construction, Pepper analogizes her § 1983 case to a criminal prosecution in the state of Illinois. Pepper seems to argue that because Do-naire should be prosecuted, and would be guilty, under Illinois’s criminal accountability theory by being a lookout, he" }, { "docid": "3915622", "title": "", "text": "assisted with the repossession. If Hancock in fact participated in the repossession, his actions violated clearly established law. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated_” Amendment 4, Constitution of the United States. The Supreme Court clarified the purpose of the Amendment in United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984): This text protects two types of expectations, one involving “searches,” the other “seizures.” A “search” occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A “seizure” of property occurs when there is some meaningful interference with an individual’s possessory interests in that property. The district court found Jacobsen inapplicable as it was a criminal case dealing with the seizure of cocaine, and the Cofields’ seizure was a private taking of personal property. However, the Fourth Amendment protects “the people,” not exclusively “the criminally charged.” The defendants argued that the application of the Fourth Amendment to cases of this kind was not clearly established law until confirmed by the Supreme Court’s opinion in Soldal v. Cook County, Ill., 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). In Soldal, a landlord wished to remove a tenant’s trailer from the trailer park for failure to pay rent. The landlord did not wish to wait for the necessary eviction papers, and asked the sheriffs department to assist in a “self-help” eviction. The sheriff accompanied the landlord to the park, and allowed the trailer to be removed from the premises. The Court held that a “seizure” had occurred within the meaning of the Fourth Amendment, remanding the case to determine if the seizure was “reasonable.” It matters not that Soldal was decided after the seizure in this case. We need not wait for the Supreme Court explicitly to declare a law “clearly established” before finding its violation unprotected by qualified immunity. Soldal did not claim to be fashioning new law. To the contrary, the Court stated that its holding fell within a" }, { "docid": "17441848", "title": "", "text": "The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. Amend. IV. To establish an unlawful seizure under the Fourth Amendment, Fox must demonstrate that payment of collateral under the District’s post-and-forfeit procedure (1) constitutes a seizure, and (2) that the seizure is unreasonable. Soldal v. Cook County, Ill., 506 U.S. 56, 61-71, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). Fox has failed to meet both requirements. A payment under the post-and-forfeit procedure does not constitute a seizure nor is it unreasonable. “A ‘seizure’ of property ... occurs when ‘there is some meaningful interference with an individual’s possessory interests in that property.’ ” Id. at 61, 113 S.Ct. 538, quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Further, a “seizure” is not unreasonable if it occurs with the non-coercive, voluntary consent of the owner. See Schneckloth v. Bustamonte, 412 U.S. 218, 233, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (“[I]f under all the circumstances it has appeared that the consent was not given voluntarily — that it was coerced by threats or force, or granted only in submission to a claim of lawful authority — then we have found the consent invalid and the search unreasonable.”). Here, the Court has already determined that the post-and-forfeit payment is voluntary: The fundamental flaw at the heart of plaintiffs case is that while his papers are generously seasoned with strong language connoting wrongdoing— “force,” “coerce,” “exact,” “deprive,” and “take,” and the allegations all turn upon the city’s alleged policy of “making” arrestees pay money, there simply was no coercion, taking, or deprivation inherent in the voluntary exchange that was offered and accepted in this case. Mem. Op., 851 F.Supp.2d at 23. The Court added that “the payment was a bargained for exchange whereby both parties obtain a benefit: the arrestee gains both his release and complete finality.” Mem. Op., 851 F.Supp.2d at 32. Moreover, the reasonableness of the procedure is bolstered by the fact" } ]

[ { "docid": "16636423", "title": "", "text": "because he had no notice that the government would “pur sue a theory of fraud based on Mr. Bailey’s inaccurate quarterly reports” and because it “created the possibility either that the jury may have convicted Mr. Bailey of an uncharged scheme, or that the jury’s verdict was not unanimous as to which alleged scheme — the futures fraud or the uncharged quarterly-reports fraud — supported the convictions.” Appellant’s Br. at 41. Bailey failed to argue below that there was a variance between the indictment and the proof at trial, so we review the issue under the plain error standard. See United States v. Dennis, 237 F.3d 1295, 1300 (11th Cir.2001); United States v. Young, 862 F.2d 815, 820 (10th Cir. 1988). “To notice plain error under Fed. R.Crim.P. 52(b), the error must (1) be an actual error that was forfeited; (2) be plain or obvious; and (3) affect substantial rights, in other words, in most cases the error must be prejudicial, i.e., it must have affected the outcome of the trial,” United States v. Haney, 318 F.3d 1161, 1166 (10th Cir.2003) (en banc), in that it “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “A variance arises when the evidence adduced at trial establishes facts different from those alleged in the indictment, and denigrates the Sixth Amendment right ‘to be informed of the nature and cause of the accusation.’ ” United States v. Caballero, 277 F.3d 1235, 1243 (10th Cir.2002) (quoting U.S. Const, amend. VI) (citation omitted). “Any such variance is reversible error only if it affects the substantial rights of the accused.” United States v. Hanzlicek, 187 F.3d 1228, 1232 (10th Cir.1999). “A defendant is substantially prejudiced in his defense either because he cannot anticipate from the indictment what evidence will be presented against him, or because the defendant is exposed to the risk of double jeopardy.” Caballero, 277 F.3d at 1243. Consistent with the wire fraud statute, the indictment alleged that Bailey “did knowingly and willfully devise a scheme or" } ]

[ { "docid": "1921685", "title": "", "text": "differ from those alleged in the indictment; and (2) the error affects the defendant’s substantial rights ...’ ” United States v. Rodriguez, 525 F.3d 85, 102 (1st Cir.2008) (quoting United States v. Pomales-Lebrón, 513 F.3d 262, 269 (1st Cir.2008)). “A claim that the Government’s proof varied impermissibly from the charges contained in the indictment is essentially a challenge to the sufficiency of the evidence.” Id. “As with all such claims, ‘we canvass the evidence (direct and circumstantial) in the light most agreeable to the prosecution and decide whether that evidence, including all plausible inferences extractable therefrom, enables a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime.’ ” Id. (quoting United States v. Pérez-Ruiz, 353 F.3d 1, 5 (1st Cir.2003)). Dunbar argues that he objected to the alleged variance between the indictment and the trial evidence, but the record reveals only that he requested jury instructions on the conspiracy issue. He made no motion for acquittal on this ground. Accordingly, we review only for plain error. See United States v. DeCicco, 439 F.3d 36, 44 (1st Cir.2006). The plain-error standard is met if (1) the district court erred; (2) the error was “plain”— that is, clear or obvious; (3) the error affected the defendant’s substantial rights and (4) the error “ ‘seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Torres, 541 F.3d 48, 53 (1st Cir.2008) (quoting United States v. Brandao, 539 F.3d 44, 57 (1st Cir.2008)). Here, there is no error, let alone plain error. The indictment charged Dunbar with participating in a conspiracy, from in or about January 2000 to in or about March 20, 2002, to distribute and possess certain illegal drugs. The indictment also charged Dunbar with participating in a conspiracy, from in or about the spring of 2001 to in or about January 2002, to import certain illegal drugs. The evidence at trial was sufficient to show that Dunbar conspired with a number of individuals to distribute illegal drugs ánd that he conspired with a number of individuals to import drugs. See" }, { "docid": "17681073", "title": "", "text": "government offered no evidence that Caldwell received any economic benefit from the introduction, and Anderson testified that Caldwell received no such benefit. After the introduction, Caldwell was not involved with any drug transaction between Herrera and Anderson. On the facts of this case, Caldwell’s introduction alone cannot demonstrate beyond a reasonable doubt that a single conspiracy existed among Caldwell, Anderson, and Herrera. Although the government established that Caldwell was involved in two separate conspiracies, it failed to prove the tripartite conspiracy alleged in the indictment. As a result, a variance occurred. B Not every variance, however, requires reversal. United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir.2005). A variance becomes fatal, and thus reversible error, “only if it affects the substantial rights of the accused.” United States v. Ailsworth, 138 F.3d 843, 848 (10th Cir.1998). We review de novo the question of whether a particular variance constitutes reversible error. Windrix, 405 F.3d at 1153-54. A variance is not fatal “merely because the defendant is convicted upon evidence which tends to show a narrower scheme than that contained in the indictment, provided that the narrower scheme is fully included within the indictment.” Harrison, 942 F.2d at 758 (quotation omitted). The primary purpose of the prohibition against variances is “to insure notice of the charges.” Williamson, 53 F.3d at 1513. When an indictment charges a conspiracy among multiple individuals, it generally provides sufficient notice to a defendant that she must defend against the smaller conspiracies. See Windrix, 405 F.3d at 1154. By comparison, a variance may be substantially prejudicial “if the evidence adduced against co-conspirators involved in separate conspiracies was more likely than not imputed to the defendant by the jury in its determination of the defendant’s guilt.” Id. (quotation and alteration omitted). Caldwell contends he was substantially prejudiced because the jury must have relied on the amount of marijuana Herrera sold to Anderson in assessing drug quantity. Caldwell’s argument fails, however, because “when asking what facts the jury had to find in order to convict, we look to the elements of the crime as defined by law.” United States v." }, { "docid": "6059306", "title": "", "text": "of income. On at least one occasion, the defendant had over $100,000 in cash stored in a garbage bag in his home. A jury certainly could have concluded from this evidence that the defendant was aware that the money in question had resulted from drug activity. Lopez, 42 F.3d 463, 467 (recognizing that jury may infer from the evidence that defendant’s money came from drug sales). III. Next, the defendant argues that his conviction for conspiracy to distribute and possess with intent to distribute cocaine must be reversed because the government failed to prove the existence of a single conspiracy as charged in the indictment, but instead proved multiple conspiracies. This alleged variance between the indictment and the proof presented at trial, he argues, is fatal. In support of his argument he notes that James Jenkins left the conspiracy in August of 1989. He also notes that other members of the conspiracy worked as couriers for drug suppliers other than James Jenkins. Because the defendant failed to raise this issue below, our standard of review is one of plain error. United States v. Griggs, 71 F.3d 276, 279 (8th Cir.1995). Under this standard, we may reverse only if the error has harmed the defendants’ substantial rights. And even if the defendant’s rights have been affected, whether to notice the error is a matter of discretion which is generally exercised only where the error affects the fairness, integrity, or public reputation of judicial proceedings. Ibid. We are not convinced that the District Court erred' in this ease, plainly or otherwise. Whether the government proved a single conspiracy or multiple conspiracies is a question of fact for the jury to decide. United States v. Holt, 969 F.2d 685, 687 (8th Cir.1992). The evidence presented at trial established that the defendant agreed to store money and drags for the drag-distribution ring which included James Jenkins and a number of couriers. The fact that the conspirators changed over time does not necessarily establish the existence of varied conspiracies. Rather, where the remaining conspirators continue to act in furtherance of the conspiracy to distribute drags," }, { "docid": "14231032", "title": "", "text": "players were Sloan DuPont, Terry Nelson, David Watson, Peter Zaccagnino, Deno Nerozzi, Sam Kram, Mr. Davidson, Mr. Searles, Mr. Thornburgh, among others.” Opening Br. of Appellant at 58. In his reply brief, Mr. Fishman makes a more specific argument, alleging that there were at least three separate conspiracies — one involving Mr. Zaccagnino, the Caribou program, and the Chinese bond conspiracy involving Norah Cali, the claimed niece of Alan Greenspan. He suggests there was perhaps a fourth “activity,” which he claims was not a conspiracy at all, involving the purchase of bonds from Mr. Fish-man by a woman named Barbara Johnson. Mr. Fishman concedes that perhaps the Zaccagnino conspiracy was “peripheral” to the Caribou scheme, but steadfastly maintains the others were entirely separate. Mr. Fishman failed to raise this issue in his Rule 29 motion below. “Where ‘an indictment charges a single conspiracy, but the evidence presented at trial proves only the existence of multiple conspiracies,’ a variance occurs.” United States v. Caldwell, 589 F.3d 1323, 1328 (10th Cir.2009) (quoting United States v. Camagie, 533 F.3d 1231, 1237 (10th Cir.2008)). In reviewing a claimed variance, “ ‘we view the evidence and draw all reasonable inferences therefrom in the light most favorable to the government, asking whether a reasonable jury could have found [the defendant] guilty of the charged conspiracy] beyond a reasonable doubt.’ ” Id. (quoting Camagie, 533 F.3d at 1237). We consider the “existence of a variance that would support acquittal [a]s a matter of law that we review de novo.” Id. (citing United States v. Griffin, 493 F.3d 856, 862 (7th Cir.2007) (“We treat a conspiracy variance claim as an attack on the sufficiency of the evidence supporting the jury’s finding that each defendant was a member of the same conspiracy.”)). Because it is difficult to distinguish between a single large conspiracy and several smaller conspiracies, “we will generally defer to the jury’s determination of the matter.” Id. at 1329. In reviewing a jury finding that a single, rather than multiple, conspiracy existed, “a focal point of the analysis is whether the alleged coconspirators’ conduct exhibited interdependence.” United" }, { "docid": "18423419", "title": "", "text": "only tended to show the existence of multiple conspiracies. We review the question of whether a variance has occurred de novo. United States v. Caver, 470 F.3d 220, 235-37 (6th Cir.2006). “A variance to the indictment occurs when the charging terms of the indictment are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.” Id. at 236. In determining whether the evidence can reasonably support only a finding of multiple conspiracies, we view the evidence “in the light most favorable to the government.” Id. When a defendant first alleges a variance at trial, this Court will reverse a conviction if “a variance occurred and that variance affected [the defendant’s] substantial rights.” Id. at 235; see also Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). But where the issue is first raised on appeal, as here, we review for plain error, Caver, 470 F.3d at 235, which requires the defendant to prove that the error affected the outcome of the district court proceedings. United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In the instant case, the evidence shows that the defendant was part of multiple conspiracies and not a single conspiracy as charged in the indictment. None of the customers to whom Swafford sold iodine for use in the production of methamphetamine directly interacted with one another except Michelle Dixon and Becky McAllister. And “while a single conspiracy does not become multiple conspiracies simply because each member of the conspiracy does not know every other member,” it is necessary to show that each alleged member “agreed to participate in what he knew to be a collective venture directed toward a common goal.” United States v. Warner, 690 F.2d 545, 549 (6th Cir.1982); see also Jury Instructions, J. Apx. p. 625. We have found single conspiracies even where the connections between the co-conspirators were minimal. See, e.g., United States v. Kelley, 849 F.2d 999, 1003 (6th Cir.1988) (holding that a defendant who was involved only in distributing drugs in San Francisco" }, { "docid": "23009575", "title": "", "text": "24, 2002, Search of Mook’s Storage Lockers Mook also challenges search warrants for (1) a second search of the house on September 23 and (2) the search of a storage locker on September 24. Mook’s sole challenge to these searches is that the warrants were based on evidence discovered during the first September 23 search, which he contends was unconstitutional. Because we hold that search constitutional, we reject this challenge. III. The Conspiracy Charge The grand jury indictment charged that each defendant had participated in a conspiracy with at least nine named members. Defendants contend that there was a fatal variance between the conspiracy charged and the proof at trial of multiple, smaller conspiracies among subsets of the persons named in the indictment. “A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment.” United States v. Ailsworth, 138 F.3d 843, 848 (10th Cir.1998) (internal citations and quotation marks omitted). But not every variance requires reversal. A “variance is reversible error only if it affects the substantial rights of the accused.” Id. There are thus two questions: First, was there sufficient evidence to support a finding of the single conspiracy charged, or was there a variance? Second, if there was a variance, was that variance substantially prejudicial to Defendants? We need not decide the first question here because we answer the second in the Government’s favor. Whether a variance was substantially prejudicial is a question of law that we review de novo. See United States v. Bryant, 349 F.3d 1093, 1095 (8th Cir.2003). Even if there was a variance in this case, it was not substantially prejudicial to Defendants and consequently it is not a ground for reversing their convictions. “A defendant’s substantial rights are not prejudiced merely because the defendant is convicted upon evidence which tends to show a narrower scheme than that contained in the indictment, provided that the narrower scheme is fully included within the indictment.” United States v. Harrison, 942 F.2d 751, 758 (10th Cir.1991) (internal quotation marks omitted). As we explained in United States v. Williamson, 53 F.3d" }, { "docid": "17681060", "title": "", "text": "conspiracy to distribute marijuana. Where “an indictment charges a single conspiracy, but the evidence presented at trial proves only the existence of multiple conspiracies,” a variance occurs. United States v. Carnagie, 533 F.3d 1231, 1237 (10th Cir.2008). In considering a claimed variance, “we view the evidence and draw all reasonable inferences therefrom in the light most favorable to the government, asking whether a reasonable jury could have found [the defendant] guilty of the charged conspiracy] beyond a reasonable doubt.” Id. The existence of a variance that would support acquittal is a matter of law that we review de novo. See United States v. Avery, 295 F.3d 1158, 1177 (10th Cir.2002); see also United States v. Griffin, 493 F.3d 856, 862 (7th Cir.2007) (“We treat a conspiracy variance claim as an attack on the sufficiency of the evidence supporting the jury’s finding that each defendant was a member of the same conspiracy.”). As noted, we conclude that Herrera’s role as a common supplier, Caldwell’s earlier purchase of marijuana from Anderson, and Caldwell’s introduction of Anderson to Herrera do not constitute sufficient evidence of a single conspiracy among the three drug dealers. Instead, the evidence presented at trial demonstrates the exis tence of separate conspiracies between Caldwell and Anderson, and between Caldwell and Herrera. Assuredly, each of the three conspired to distribute marijuana, but a conspiracy did not exist among Herrera, Caldwell, and Anderson as a group. 1 Distinguishing between a single, large conspiracy and several smaller conspiracies is often difficult; we will generally defer to the jury’s determination of the matter. See United States v. Powell, 982 F.2d 1422, 1431 (10th Cir.1992). Nonetheless, “we may not uphold a conviction obtained by piling inference upon inference .... The evidence supporting the conviction must be substantial and do more than raise a suspicion of guilt.” United States v. Anderson, 189 F.3d 1201, 1205 (10th Cir.1999). To prove a conspiracy, the government must demonstrate: “(1) that two or more persons agreed to violate the law, (2) that the defendant knew at least the essential objectives of the conspiracy, (3) that the defendant knowingly and" }, { "docid": "4466053", "title": "", "text": "United States v. Magana, 118 F.3d 1173, 1185 (7th Cir.1997). To overturn a conspiracy conviction because of a variance, the defendant must show that there was a variance between what was charged in the indictment and the evidence at trial and that he was prejudiced by this variance. Williams, 272 F.3d at 862-63. Whether a single conspiracy exists is a question of fact for the jury. Townsend, 924 F.2d at 1389. “Even if the evidence arguably established the existence of multiple conspiracies, there is no material variance from the indictment charging a single conspiracy if a reasonable trier of fact could have found beyond a reasonable doubt the existence of the single conspiracy charged in the indictment.” Williams, 272 F.3d at 862 (citing Townsend, 924 F.2d at 1389; United States v. McAllister, 29 F.3d 1180, 1186 (7th Cir.1994)). Because Womack failed to ask for a jury instruction on multiple conspiracies or otherwise bring this challenge to the attention of the district court, we review that portion of Womack’s conspiracy variance claim for plain error only. See United States v. Briscoe, 896 F.2d 1476, 1513 (7th Cir.1990) (applying plain error standard of review because defendants failed to propose multiple conspiracy jury instruction). To establish plain error, Womack must prove (1) that an error occurred; (2) that the error was plain; and (3) that the error affected his substantial rights. See Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). At trial, the government had the burden of proving the existence of a. single conspiracy to distribute cocaine and that Womack knowingly became a member of the conspiracy with the intention to further the conspiracy. The testimony established that Turner, a co-leader with Carl Parker of the cocaine-distribution ring, supplied Womack and Kareem Hamilton with multiple kilograms of cocaine, which Womack and Hamilton then sold to others. Joe Sharp, who pleaded guilty to conspiring with Womack and others, testified that he acted as the courier, delivering cocaine concealed in dog food bags on at least ten occasions from Turner to Womack between May 2004 and January 2005." }, { "docid": "11987642", "title": "", "text": "in Count 41, but only Ms. Carnagie, Mr. Hilaire, and Mr. Byrd proceeded to trial. In addition to the conspiracy charges, Ms. Carnagie and Mr. Hilaire were charged with various other counts of wire fraud, making or using a false document, and using a false social security number. After the close of the government’s evidence at trial, Ms. Carnagie and Mr. Hi-laire moved for judgment of acquittal, arguing that the evidence did not establish the existence of the large conspiracies charged in Counts 1 and 41, but proved only multiple, smaller conspiracies. The district court took the motions under advisement. The jury then returned its verdict, finding Ms. Carnagie and Mr. Hilaire guilty on both conspiracy charges. Ms. Carnagie was also found guilty on several of the wire fraud and false document counts. The jury acquitted Mr. Hilaire of all the individual counts and acquitted Mr. Byrd of the conspiracy counts. Ms. Car-nagie and Mr. Hilaire moved again for judgment of acquittal, making the same arguments they had previously made and contending that a fatal variance occurred between the single, broad conspiracies charged in Counts 1 and 41 and the multiple, smaller conspiracies proven at trial. The district court granted the motion, concluding the government failed to establish the requisite interdependence among the alleged members of the fraud and money laundering conspiracies as charged. The government now appeals. II. DISCUSSION The government argues that there was no variance between the conspiracies charged and the evidence adduced at trial, and even if a variance occurred, it was not prejudicial. Thus, we have two questions to consider on appeal: (1) did the evidence support the overall conspiracies charged, or did a variance occur; and (2) if a variance occurred, was it substantially prejudicial to the defendants? See United States v. Windrix, 405 F.3d 1146, 1158 (10th Cir. 2005). A. Variance A variance arises when an indictment charges a single conspiracy but the evidence presented at trial proves only the existence of multiple conspiracies. See United States v. Ailsworth, 138 F.3d 843, 848 (10th Cir.1998). In determining whether a variance occurred that would" }, { "docid": "19604244", "title": "", "text": "trial impermissibly varied from the indictment. Nicholas also challenges the sufficiency of the evidence to support her conviction for conspiracy to commit wire fraud. We address these contentions together. Count 2 of the indictment alleged a single conspiracy. JA277-79. Brand and Nicholas assert that the Government's evidence at trial did not support the existence of a single conspiracy but instead showed two independent conspiracies, only one of which involved the two of them. According to Brand and Nicholas, the only conspiracy with which they were involved ended more than five years before the Government charged them. That would mean that all their conduct falls outside the five-year limitations period for wire fraud conspiracy under 18 U.S.C. § 3282. \"A conviction must be vacated when (1) there is a variance between the indictment and the proof presented at trial and (2) the variance prejudices a substantial right of the defendant.\" Kemp, 500 F.3d at 287 (quoting United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989)). We see no variance, and will affirm the District Court. A variance exists \"if the indictment charges a single conspiracy while the evidence presented at trial proves only the existence of multiple conspiracies.\" Id. \"We must determine `whether there was sufficient evidence from which the jury could have concluded that the government proved the single conspiracy alleged in the indictment.'\" Id. (quoting Kelly, 892 F.2d at 258). Viewing the record in the light most favorable to the Government, we consider three factors: (1) \"whether there was a common goal among the conspirators\"; (2) \"whether the agreement contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators\"; and (3) \"the extent to which the participants overlap in the various dealings.\" Id. (quoting Kelly, 892 F.2d at 259). Brand argues that the Government failed to establish a common goal among the conspirators. To determine whether the conspirators shared a common goal, \"we look to the underlying purpose of the alleged criminal activity\" in a fairly broad sense. United States v. Rigas, 605 F.3d 194, 214 (3d Cir. 2010)" }, { "docid": "19762734", "title": "", "text": "the conspiracy. Prior to trial, Patterson unsuccessfully moved to suppress methamphetamine and drug paraphernalia that was seized from a car in which he was a passenger. At trial, in addition to the physical evidence against Patterson, prosecutors presented testimony from nine members of the conspiracy who earlier had reached plea agreements with the government. The jury convicted both men, and both now appeal. II A We begin with Nitch’s challenge to his conviction. Since Nitch did not raise his variance argument at trial, we review the jury’s verdict only for plain error. Under this standard, Nitch must show that “(1) an error has occurred, (2) it was ‘plain,’ (3) it affected a substantial right of the defendant, and (4) it seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Duran, 407 F.3d 828, 834 (7th Cir.2005) (internal quotation marks and citations omitted); see generally United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (discussing plain error review in detail). A conspiracy variance claim is nothing more than “a challenge to the sufficiency of the evidence supporting the jury’s finding that each defendant was a member of the same conspiracy.” United States v. Townsend, 924 F.2d 1385, 1389 (7th Cir.1991); see also United States v. Williams, 272 F.3d 845, 862 (7th Cir.2001) (citing to Townsend’s explanation of a conspiracy variance claim). As a result, “[e]ven if the evidence arguably established multiple conspiracies, there is no material variance from an indictment charging a single conspiracy if a reasonable trier of fact could have found beyond a reasonable doubt the existence of the single conspiracy charged in the indictment.” Williams, 272 F.3d at 862. The thrust of Nitch’s argument is there must have been more than one conspiracy in this case because he left Mc-Leansboro before Patterson became involved in drug activities there. Although Nitch acknowledges that numerous witnesses described their involvement in his methamphetamine operation as well as their work with Patterson individually, he emphasizes that no witness testified to seeing the two defendants in the same place at the" }, { "docid": "11987643", "title": "", "text": "variance occurred between the single, broad conspiracies charged in Counts 1 and 41 and the multiple, smaller conspiracies proven at trial. The district court granted the motion, concluding the government failed to establish the requisite interdependence among the alleged members of the fraud and money laundering conspiracies as charged. The government now appeals. II. DISCUSSION The government argues that there was no variance between the conspiracies charged and the evidence adduced at trial, and even if a variance occurred, it was not prejudicial. Thus, we have two questions to consider on appeal: (1) did the evidence support the overall conspiracies charged, or did a variance occur; and (2) if a variance occurred, was it substantially prejudicial to the defendants? See United States v. Windrix, 405 F.3d 1146, 1158 (10th Cir. 2005). A. Variance A variance arises when an indictment charges a single conspiracy but the evidence presented at trial proves only the existence of multiple conspiracies. See United States v. Ailsworth, 138 F.3d 843, 848 (10th Cir.1998). In determining whether a variance occurred that would support the district court’s grant of judgment of acquittal, we view the evidence and draw all reasonable inferences therefrom in the light most favorable to the government, asking whether a reasonable jury could have found Ms. Carnagie and Mr. Hilaire guilty of the charged conspiracies beyond a reasonable doubt. See United States v. Montgomery, 468 F.3d 715, 719 (10th Cir.2006); Ailsworth, 138 F.3d at 846; see also United States v. Griffin, 493 F.3d 856, 862 (7th Cir.2007) (“We treat a conspiracy variance claim as an attack on the sufficiency of the evidence supporting the jury’s finding that each defendant was a member of the same conspiracy.”). In this case, the government charged the defendants with conspiring to defraud the United States (Count 1) and conspiring to commit money laundering (Count 41). Count 1 of the second superseding indictment charged the defendants as follows: From on or about February 2, 1999, and continuing thereafter until on or about July 26, 2004 ... [Ms. Carnagie, Ms. Cameron, Ms. Edwards, Ms. Mullins, Mr. Byrd, Mr. Cotton, Mr. Hilaire," }, { "docid": "18423418", "title": "", "text": "for [the attorney] to testify even if the defense could not foresee those developments prior to trial.” Id. *2-3, 995 U.S.App. LEXIS 37057 at *3-4; Swafford, 2005 U.S. Dist. LEXIS 26890 at *26. The instant case does not present as strong a case for disqualifying counsel, for the defendant waived the defense potentially giving rise to the conflict of interest. Nevertheless, we believe that the district judge appropriately explained his decision — ie. that a conflict of interest might arise during trial — and that this decision was thus not arbitrary. IV. The defendant argues that both the first and second counts of the indictment suffer from fatal variances. In the first count, the government charged Swafford with a single conspiracy to aid and abet the manufacture of methamphetamine. And in the second count, the government charged the defendant with a single conspiracy to distribute iodine to be used to manufacture methamphetamine. The defendant contends that the proof offered at trial failed to support the existence of a single conspiracy for either count, but instead only tended to show the existence of multiple conspiracies. We review the question of whether a variance has occurred de novo. United States v. Caver, 470 F.3d 220, 235-37 (6th Cir.2006). “A variance to the indictment occurs when the charging terms of the indictment are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.” Id. at 236. In determining whether the evidence can reasonably support only a finding of multiple conspiracies, we view the evidence “in the light most favorable to the government.” Id. When a defendant first alleges a variance at trial, this Court will reverse a conviction if “a variance occurred and that variance affected [the defendant’s] substantial rights.” Id. at 235; see also Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). But where the issue is first raised on appeal, as here, we review for plain error, Caver, 470 F.3d at 235, which requires the defendant to prove that the error affected the outcome of the district court" }, { "docid": "2419635", "title": "", "text": "in the scheme.”). . \"In nearly every conspiracy case the claim is made that a variance exists because multiple conspiracies were shown.” United States v. Abraham, 541 F.2d 1234, 1237 (7th Cir.1976), cert. denied, 429 U.S. 1102, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977). \"A variance occurs only when the proof adduced at trial is not enough for a reasonable jury to find beyond a reasonable doubt that a single conspiracy existed, but rather, that multiple conspiracies existed.” United States v. Severson, 3 F.3d 1005, 1009 (7th Cir.1993); see also Marshall, 985 F.2d at 906 (\"A variance arises when the facts provided by the government at trial differed from those contained in the indictment.”). Accordingly, the variance claim is equivalent to a claim of insufficient evidence, see United States v. Nava-Salazar, 30 F.3d 788, 796 (7th Cir.), cert. denied, — U.S. —, 115 S.Ct. 515, 130 L.Ed.2d 421 (1994); Townsend, 924 F.2d at 1389, and we have already rejected Shorter's sufficiency challenge. Moreover, \"a conviction must be reversed [only] if the variance between the indictment and the proof affects the substantial rights of the parties.\" Marshall, 985 F.2d at 906. Even if a variance existed, Shorter could show no prejudice because he was a member of each conspiracy he alleges. See id. at 907 (explaining that variance between multiple and single conspiracies did not prejudice defendants who were members of both conspiracies). .See Andrus, 775 F.2d at 846 (\"Since we have already concluded that a single conspiracy was proved, jury confusion did not justify severance.”). Because there was only one conspiracy, no spillover of evidence occurred because all the conspiracy evidence was admissible against Shorter. See Donovan, 24 F.3d at 915 (\"What [defendants] claim to be spillover of evidence offered against other defendants is simply evidence of the single conspiracy of which they were all convicted. They can point to no evidence offered against a codefendant that does not relate to the single conspiracy, much less explain how such evidence even slightly prejudiced them.\"); cf. Zafiro v. United States, — U.S. —, —, 113 S.Ct. 933, 938, 122 L.Ed.2d 317" }, { "docid": "5607180", "title": "", "text": "review only for plain error. See United States v. Seng Tan, 674 F.3d 103, 110-11 (1st Cir.2012). To clear this hurdle, an appellant must show: “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant’s substantial rights, but:also (4) seriously .impaired the fairness, integrity, or-public reputation of judicial proceedings.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001). There is no plain error here. To prevail on a prejudicial variance claim, an appellant must show a nia-terial factual difference between the crime charged in the indictment and the crime proved at trial. See United States v. Fenton, 367 F.3d 14, 18 (1st Cir.2004). He also must show prejudice. See id. Here, there was no variance. The indictment charged both an overarching conspiracy (count 1), for which-the appellant was not charged, and a narrower conspiracy (count 3), for which the appellant was charged. The appellant says that although the government charged him with the narrower conspiracy (involving .the smuggling activity that took place on August 22, 2009), it only proved the broader conspiracy. We do not agree. The evidence presented by the government and admitted against the appellant at trial pertained directly.to the particular conspiracy charged against him. The government proved, step by step, each and every .element of that conspiracy. The fact that some of the government’s evidence also touched upon aspects of the broader conspiracy, without more, does not work a variance. See United States v. Fisher, 3 F.3d 456, 463 (1st Cir.1993); United States v. Innamorati, 996 F.2d 456, 477-78 (1st Cir.1993). Here, there was no “more.” In all events, a claim of prejudicial variance by definition necessitates a showing of prejudice — and in this case, there was no prejudice. As in Fisher, the appellant was, at worst, “convicted of and sentenced for a conspiracy smaller in scope and breadth than? that for which he may have, in fact, been culpable.” 3 F.3d at 463 n. 19. Given that circumstance, any variance between the indictment and the proof could not conceivably have affected the appellant’s substantial rights." }, { "docid": "18088088", "title": "", "text": "coextensive in the present case. We must, instead, construe § 1961(1) to effectuate RICO’s purpose. As noted earlier, vote buying in violation of Kentucky Revised Statute § 119.205 is an offense generally known or characterized as involving bribery. This reading of 18 U.S.C. § 1961(1)(A) effectuates RICO’s remedial purpose. Finding no ambiguity in the 18 U.S.C. § 1961(1), we hold that the district court did not err in determining that defendants’ RICO convictions rest on a valid predicate act. III. VARIANCE Defendants contend that the evidence was insufficient to prove a single conspiracy and that, at most, the evidence showed two separate conspiracies: Adams supporters and White supporters. Therefore, according to defendants, there was a fatal variance between what the government charged in Count 1 of the indictment and the proof offered at trial. Ordinarily, this court reviews de novo the question of whether a variance has occurred. United States v. Caver, 470 F.3d 220, 235 (6th Cir.2006). That is, if a defendant alleges a variance at trial, we reverse the conviction if (1) a variance occurred and (2) that variance affected the defendant’s substantial rights. United States v. Swafford, 512 F.3d 833, 841 (6th Cir.2008). However, when a defendant raises the variance issue for the first time on appeal, this court reviews for plain error. Id. Under this standard, the second part of our inquiry “requires the defendant to prove that the error affected the outcome of the district court proceedings.” Id. In the present case, we need not decide which standard of review applies because under either standard, defendants have faded to show that a variance occurred. “A variance to the indictment occurs when the charging terms of the indictment are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.” Caver, 470 F.3d at 235. In conspiracy cases, “a variance constitutes reversible error only if ... the indictment alleged one conspiracy, but the ev idence can reasonably be construed only as supporting a finding of multiple conspiracies.” Id. at 235-36 (quotation marks, alterations, and citation omitted). In our review for whether" }, { "docid": "7444462", "title": "", "text": "although he may have been involved in multiple conspiracies to manufacture and sell methamphetamine, the government failed to prove that he engaged in the large, single conspiracy alleged in the indictment. The jury convicted him on all three counts. Beals timely appealed. B. Beals contends that there was a fatal variance in the proofs on the conspiracy counts — the indictment alleged a single conspiracy but the evidence proved only the existence of multiple, smaller ones — and also that the evidence did not prove that he possessed equipment used to manufacture methamphetamine. We review these challenges de novo. United States v. Swafford, 512 F.3d 833, 841 (6th Cir.2008) (variance); United States v. Fisher, 648 F.3d 442, 450 (6th Cir.2011) (sufficiency of the evidence). 1. The jury convicted Beals of conspiracy to manufacture and distribute 50 or more grams of methamphetamine and 500 grams or more of a mixture or substance containing methamphetamine. Beals argues that the government proved the existence of only multiple, smaller conspiracies, not the larger one he was charged with joining. In his view, each cooking session was a separate conspiracy that ended after the cook. A variance occurs when “the charging terms of the indictment are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.” Swafford, 512 F.3d at 841 (internal quotation marks omitted). In a conspiracy prosecution, a variance demands reversal only if (1) “the indictment alleged one conspiracy, but the evidence can reasonably be construed only as supporting a finding of multiple conspiracies,” and (2) the variance prejudiced the defendant. United States v. Williams, 612 F.3d 417, 423 (6th Cir.2010). Whether the government has proved one or only multiple conspiracies is a question of fact considered on appeal in the light most favorable to the government. United States v. Smith, 320 F.3d 647, 652 (6th Cir.2003). To establish a drug conspiracy, the government must prove an agreement to violate the drug laws — ie., to manufac ture or distribute drugs — and that each conspirator knew of, intended to join, and participated in the conspiracy. United" }, { "docid": "22257633", "title": "", "text": "Henley, 360 F.3d at 514 (trust between drug dealers involved in extending drugs on credit supports the inference of a conspiracy). B. VARIANCE On appeal, Defendants argue that a variance existed between the proof offered at trial and the allegations in the indictment because, according to Defendants, the indictment alleged only a single conspiracy and the evidence at trial demonstrated, at most, multiple conspiracies. This court requires that the issue of variance be raised at trial. United States v. Wilson, 168 F.3d 916, 923 (6th Cir.1999). Because Defendants Cloud and Abdullah did not raise the issue of variance at trial, we review their claims only for plain error. Id. Defendant Caver did, however, raise the issue before the district court. We will therefore reverse his conviction if a variance occurred and that variance affected his substantial rights. United States v. Blackwell, 459 F.3d 739, 762 (6th Cir.2006) (citing United States v. Solorio, 337 F.3d 580, 589 (6th Cir.2003)). The court of appeals reviews the question of whether a variance has occurred de novo. Solorio, 337 F.3d at 589. A variance to the indictment occurs when the charging terms of the indictment are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment. Id. Within the context of a conspiracy, a variance constitutes reversible error only if a defendant demonstrates that he was prejudiced by the variance and that the “indictment allege[d] one conspiracy, but the evidence can reasonably be construed only as supporting a finding of multiple conspiracies.” United States v. Warner, 690 F.2d 545, 548 (6th Cir.1982) (emphasis added). In making this determination, the evidence must be viewed in the light most favorable to the government. See id. at 549. 1. Existence of a single conspiracy In the instant case, the evidence does not exclude the possibility that Defendants were part of a single conspiracy. Stripping away the many interconnecting drug transactions that occurred between various conspirators on infrequent occasions, testimony established that there was a regular pattern of distribution for a large quantity of drugs: Morris would sell one-eighth kilograms to Hall" }, { "docid": "23681332", "title": "", "text": "arrested, he had a number of calling cards in his possession. The names and numbers on these cards were in code, presumably to protect the subjects’ identities. Madrid testified that one of these cards contained the coded names and phone numbers corresponding to Gallegos, Gil, and Gonzalez. Again, this evidence was sufficient for a rational jury to conclude beyond a reasonable doubt that Gallegos knowingly and voluntarily participated in a conspiracy to possess with the intent to distribute narcotics. II. Multiple Conspiracies Appellants Lied, Dickinson, Russell, Wallace, and Gallegos argue that a fatal variance existed between the indictment, which alleged a single conspiracy, and the proof at trial, which established the existence of two or more separate and independent conspiracies. Appellants claim that they were prejudiced by the transference of guilt created by voluminous evidence of illegal activity implicating unrelated defendants with whom they were tried. See Kotteakos v. United States, 328 U.S. 750, 774, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946); United States v. Sutherland, 656 F.2d 1181, 1196 (5th Cir.1981), cert. denied, 455 U.S. 949, 102 S.Ct. 1451, 71 L.Ed.2d 663 (1982). In other words, the appellants argue that the prosecution violated “the[ir] right not to be tried en masse for the conglomeration of distinct and separate offenses committed by others.” Kotteakos, 328 U.S. at 775, 66 S.Ct. at 1253. To prevail on this claim, the appellants must prove that (1) a variance existed between the indictment and the proof at trial, and (2) the variance affected their substantial rights. United States v. Morris, 46 F.3d 410, 414 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 2595, 132 L.Ed.2d 842 (1995). “To determine whether a variance existed between the indictment and the proof at trial, the number of conspiracies proved at trial must be counted.” Id. at 415. Whether the evidence shows one or multiple conspiracies is a question of fact for the jury. United States v. Guerrar-Marez, 928 F.2d 665, 671 (5th Cir.), cert. denied, 502 U.S. 917, 112 S.Ct. 322, 116 L.Ed.2d 263 (1991). “The principal considerations in counting conspiracies are (1) the existence" }, { "docid": "11987652", "title": "", "text": "the two widespread conspiracies charged in the indictment. B. Prejudice A variance between the indictment and the proof is only reversible error, however, if it is prejudicial — that is, if it “affects ‘the substantial rights of the accused.’ ” United States v. Edwards, 69 F.3d 419, 433 (10th Cir.1995) (quoting Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)). We review de novo the question of whether a variance was prejudicial. United States v. Williamson, 53 F.3d 1500, 1512 (10th Cir. 1995). The defendants contend that the presentation of evidence concerning the separate conspiracies in this case adversely affected their substantial rights because: (1) the second superseding indictment did not put them on adequate notice of the charges brought against them; and (2) they were found guilty based on evidence introduced against other alleged eoconspir- ators, which the jury imputed to the defendants. 1. Notice A variance can prejudice a defendant’s Sixth Amendment right to notice of the charges against him if he “could not have anticipated from the allegations in the indictment what the evidence would be at trial.” United States v. Stoner, 98 F.3d 527, 536 (10th Cir.1996). Here, we fail to see how the defendants can claim that there was “simply no way to anticipate” what evidence would be offered against them at trial. The conspiracy charges in the indictment recited every transaction that the government was relying on to support its case. Moreover, even though the evidence did not establish two large conspiracies, it was clearly sufficient to prove that Ms. Carnagie conspired with Mr. Wesson and the various real estate agents with whom she completed transactions, as well as that Mr. Hilaire conspired with Mr. Williams and other real estate agents. When a narrower scheme than the one alleged is fully included within the indictment and proved, we have repeatedly held that a defendant’s substantial rights are not prejudiced. See Windrix, 405 F.3d at 1154 (“A defendant’s substantial rights are not prejudiced merely because the defendant is convicted upon evidence which tends to show a narrower scheme than" } ]

[ { "docid": "12612326", "title": "", "text": "the FLSA is quite apparent in the case of the GS-11 employee who works as a skilled technician. Under the FLSA, technical employees are eligible for overtime, and OPM in the past recognized as much. See Federal Personnel Manual System Letter 551-7 21 (July 1, 1975). Yet the GS-11 grade encompasses employees who perform technical duties. See 5 U.S.C. § 5104(11) (1982). Under the new regulations, all GS-11 employees (including technicians) are presumed ineligible for overtime compensation, and must, if their employing agency invokes the presumption to deny them overtime payment, file a complaint with OPM or file suit in the United States District Court. See Federal Personnel Manual System Letter 551-9 2 (March 30, 1976). Although OPM insists few government employees will suffer such inconvenience, and contends the presumption against their overtime eligibility is “easily rebuttable,” OPM’s position seems disingenuous. The regulation appears designed to make it difficult for the employee to rebut the presumption — at least to the satisfaction of the employing agency. Since the presumption appears to guide or direct the agency to act inconsistently with the FLSA and places an unwarranted and, at minimum, confusing burden on the employee, section 551.203(c) is flawed and must be vacated as inconsistent with the “meaning, scope, and application” of the FLSA. OPM’s regulation defining “executive” employees, 5 C.F.R. § 551.204, is also susceptible to a more expansive interpretation than the comparable Department of Labor regulation, 29 C.F.R. § 541.1 (1986). For example, under the Labor Department’s regulation, for an employee to be exempt from overtime, he must “customarily and regularly” direct the work of others and must manage the entire “enterprise” in which he is employed, or at least a “department” thereof. OPM’s regulations contain no such limitations. Thus, under the most straightforward reading of section 551.204, this regulation is inconsistent with the Labor Department’s definition of “executive” employees, and is therefore also vacated. The district court’s decision is, therefore, Affirmed in part, reversed in part. . The original implementation schedule contained in the proposed rules, for instance, was no longer applicable. Also, during the delay, Congress passed" } ]

[ { "docid": "6101236", "title": "", "text": "or any other law, the Director of the Office of Personnel Management is authorized to administer the provisions of this chapter with respect to any individual employed by the United States____ 29 U.S.C.A. § 204(f). The Federal Circuit has held that “administering” includes “the power to interpret the statute and to set forth the guidelines and policies of the agency.” Zumerling v. Devine, 769 F.2d 745, 750 (Fed.Cir.1985). Accordingly, it is clear from the plain language of the statute that OPM is empowered to administer FLSA with respect to plaintiffs. Plaintiffs, however, argue that OPM’s power to administer FLSA is limited in one critical respect. They argue that Congress intended that OPM always construe FLSA by taking its lead from the DoL. That is, DoL’s regulations control whenever the two agencies’ implementations of FLSA are at odds. Thus, according to plaintiffs, DoL’s regulations control here notwithstanding the statutory language because OPM’s regulations are inconsistent with DoL’s regulations. In support of their position, plaintiffs cite American Federation of Government Employees v. OPM, 821 F.2d 761 (D.C.Cir.1987) (“AFGE ”), which invalidated an OPM regulation that presumptively exempted from FLSA’s overtime requirements federal employees classified at GS-11 or above, as well as an OPM regulation defining “executive” employee that did not require the “executive” employee to “customarily and regularly” direct the work of others. Id. at 771. The court held that OPM’s regulation was inconsistent with FLSA and vacated it: Since the presumption [of exemption for GS-lls and above] appears to guide or direct the agency to act inconsistently with FLSA and places an unwarranted and, at minimum, confusing burden on the employee, [the regulation] is flawed and must be vacated as inconsistent with the ‘meaning, scope, and application’ of the FLSA. Id. In concluding that there was a requirement for consistency, the court relied on legislative history to the 1974 amendments to FLSA indicating that Congress wanted OPM to exercise its administrative powers consistently with DoL: the [OPM] will administer the provisions of the [FLSA] in such a manner as to assure consistency with the meaning, scope, and application established by the" }, { "docid": "12612324", "title": "", "text": "is consistent with the Secretary of Labor’s implementation of the FLSA. See House Report at 28. When the civil service and FLSA systems conflict, OPM must defer to the FLSA so that any employee entitled to overtime compensation under FLSA receives it under the civil service rules. FLSA, we reiterate, contains a presumptive rule that employees who work more than forty hours in a week must receive overtime compensation. See 29 U.S.C. § 207 (1982). Although employees who are determined to be executive, administrative, or professional are exempt from overtime, 29 U.S.C. § 213(a)(1) (1982); 29 C.F.R. § 541 (1986), the burden is on the employer to demonstrate the employee is in fact exempt. See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974); Clark v. J.M. Benson Co., Inc., 789 F.2d 282, 286 (4th Cir.1986). The regulations challenged here conflict in important ways with the FLSA. To be sure, OPM’s new regulations purport to exempt, as does the FLSA, only tightly defined executive, administrative, and professional employees from overtime eligibility. See 5 C.F.R. §§ 551.204, 551.205, 551.-206 (1986). But these provisions are completely undermined by another regulatory section which states that “[a]ny employee properly classified at GS-11 or above [without regard to the nature of his duties] ... shall be presumed to be exempt [from overtime eligibility].” 5 C.F.R. § 551.203(c). The regulations also purport to comply with the FLSA principle that employees are presumed eligible for overtime, affirming that “[t]he burden of proof [that an employee is exempt from overtime eligibility] rests with the agency that asserts the exemption.” See 5 C.F.R. § 551.202(b) (1986). But this provision too is modified by another section that provides: “[a]n agency that properly classifies an employee at GS-11 or above shall be deemed to have satisfied the burden of proof for asserting an exemption.” 5 C.F.R. § 551.203(c). Thus, while pledging fidelity to the FLSA in the “general principles” section of its overtime rules, OPM has, in the operative sections of those rules, undercut these very principles. The conflict between the regulations and" }, { "docid": "12210297", "title": "", "text": "judgment in such activities as work planning and organization; work assignment, direction, review, and evaluation; and other aspects of management of subordinates, including personnel administration. 5 C.F.R. § 551.205. Plaintiffs contend that these Office of Personnel Management (OPM) standards for executive exemption, are in conflict with the comparable Department of Labor (DoL) standards and therefore may not be used. Defendant points out this dispute was resolved earlier in the litigation, in favor of the OPM regulations. In Adams v. United States, 40 Fed.Cl. 303, 305 (1998), the court stated, “it is clear from the plain language of the statute that OPM is empowered to administer FLSA with respect to plaintiffs.” The court held that “[i]t is contrary to Congress’s express wish to ... requir[e] OPM to precisely mimic DoL’s every regulatory move.” Id. at 308. Assuming the DoL standards apply, plaintiffs point to the fact that the term “executive,” as defined by the DoL, requires that the employee have authority to recommend selection and removal: (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; 29 C.F.R. § 541.1. There is little difference, however, between the OPM and DoL requirements. We do not find them to be inconsistent, and, in any event, plaintiffs satisfy both standards. Mr. Gutierrez has authority to suggest selection, removal, or promotion as required by the OPM’s regulations and he makes recommendations as to the hiring and advancement of other employees as required by the DoL regulations. Mr. Gutierrez testified that “[i]n the selection process for [an instructor] vacancy here at the Academy, I do review their applications and make recommendations to the chief patrol agent.” Def.App. 31:22-24. He stated that he recommends disciplinary action for employees at the Academy and signs paperwork for step increases. He also stated that “[a]s far as individuals are concerned, I do their appraisals and I oversee their work and their departments more so into ensuring that" }, { "docid": "6101235", "title": "", "text": "than OPM, regulations; (2) DoL regulations require executive employees to meet the salary-basis test in order to qualify for exempt status; and (3) they do not meet the salary-basis test because they face the realistic possibility of salary reduction of less than a full pay period (i.e., suspensions) for reasons other than major safety violations. The government’s response is that plaintiffs fall under OPM’s jurisdiction, not DoL’s, and that OPM regulations do not contain a salary-basis test or a disciplinary-deduction rule. Instead, OPM defines the executive exemption by focusing on the nature of the employee’s job. See 5 C.F.R. § 551.204 (1997). According to the government, OPM’s regulation is a proper construction of FLSA that is owed deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). DISCUSSION When Congress expanded FLSA’s coverage to include federal employees, OPM was given responsibility to administer the act with respect to most federal employees (subject to certain exceptions not relevant here): Notwithstanding any other provision of this chapter, or any other law, the Director of the Office of Personnel Management is authorized to administer the provisions of this chapter with respect to any individual employed by the United States____ 29 U.S.C.A. § 204(f). The Federal Circuit has held that “administering” includes “the power to interpret the statute and to set forth the guidelines and policies of the agency.” Zumerling v. Devine, 769 F.2d 745, 750 (Fed.Cir.1985). Accordingly, it is clear from the plain language of the statute that OPM is empowered to administer FLSA with respect to plaintiffs. Plaintiffs, however, argue that OPM’s power to administer FLSA is limited in one critical respect. They argue that Congress intended that OPM always construe FLSA by taking its lead from the DoL. That is, DoL’s regulations control whenever the two agencies’ implementations of FLSA are at odds. Thus, according to plaintiffs, DoL’s regulations control here notwithstanding the statutory language because OPM’s regulations are inconsistent with DoL’s regulations. In support of their position, plaintiffs cite American Federation of Government Employees v. OPM, 821 F.2d 761 (D.C.Cir.1987)" }, { "docid": "8661311", "title": "", "text": "of Labor (“DOL”) and the OPM have both promulgated regulations pertaining to the administrative exemption. The DOL’s regulations are set forth in 29 C.F.R. § 541.2 stating in pertinent part: The term “employee employed in a bona fide administrative capacity” ... shall mean any employee: (a) Whose primary duty consists of ... (1) The performance of office or non-manual work directly related to management policies or general business operations of his employer or his employer’s customers, ... and (b) Who customarily and regularly exercises discretion and independent judgment; and (c)(1) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined in the regulations of this subpart), or (2) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge, or (3) Who executes under only general supervision special assignments and tasks; and (e)(1) [W]ho is compensated on a salary or fee basis at a rate of not less than $250 per week.... Id. § 541.2. The DOL’s scheme analyzes the FLSA administrative exemption requirements and can be used to determine plaintiffs eligibility under the FLSA in the instant matter. See AFGE v. OPM, 821 F.2d 761, 770 (D.C.Cir.1987). When, as here, the employer claims that an employee is exempt from overtime provisions under the FLSA, the burden falls on that employer to prove that the employee falls within the claimed exemption. See, e.g., Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974); Idaho Sheet Metal Works v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966). The criteria “provided by regulations are absolute and the employer must prove that any particular employee meets every requirement before the employee will be deprived of the protection of the Act.” Mitchell v. Williams, 420 F.2d 67, 69 (8th Cir.1969). Additionally, the employer’s claims must be proved by clear and affirmative evidence or the employee must be given coverage under the Act. See Clark v. J.M. Benson & Co., 789 F.2d 282, 286-289" }, { "docid": "12612325", "title": "", "text": "employees from overtime eligibility. See 5 C.F.R. §§ 551.204, 551.205, 551.-206 (1986). But these provisions are completely undermined by another regulatory section which states that “[a]ny employee properly classified at GS-11 or above [without regard to the nature of his duties] ... shall be presumed to be exempt [from overtime eligibility].” 5 C.F.R. § 551.203(c). The regulations also purport to comply with the FLSA principle that employees are presumed eligible for overtime, affirming that “[t]he burden of proof [that an employee is exempt from overtime eligibility] rests with the agency that asserts the exemption.” See 5 C.F.R. § 551.202(b) (1986). But this provision too is modified by another section that provides: “[a]n agency that properly classifies an employee at GS-11 or above shall be deemed to have satisfied the burden of proof for asserting an exemption.” 5 C.F.R. § 551.203(c). Thus, while pledging fidelity to the FLSA in the “general principles” section of its overtime rules, OPM has, in the operative sections of those rules, undercut these very principles. The conflict between the regulations and the FLSA is quite apparent in the case of the GS-11 employee who works as a skilled technician. Under the FLSA, technical employees are eligible for overtime, and OPM in the past recognized as much. See Federal Personnel Manual System Letter 551-7 21 (July 1, 1975). Yet the GS-11 grade encompasses employees who perform technical duties. See 5 U.S.C. § 5104(11) (1982). Under the new regulations, all GS-11 employees (including technicians) are presumed ineligible for overtime compensation, and must, if their employing agency invokes the presumption to deny them overtime payment, file a complaint with OPM or file suit in the United States District Court. See Federal Personnel Manual System Letter 551-9 2 (March 30, 1976). Although OPM insists few government employees will suffer such inconvenience, and contends the presumption against their overtime eligibility is “easily rebuttable,” OPM’s position seems disingenuous. The regulation appears designed to make it difficult for the employee to rebut the presumption — at least to the satisfaction of the employing agency. Since the presumption appears to guide or direct the" }, { "docid": "19997957", "title": "", "text": "sector, further complicates the labyrinth of rules used to interpret FLSA. The parties dispute the extent to which DOL’s regulations control OPM’s administration of FLSA over plaintiffs. While the court finds that OPM’s regulations are controlling, and that it need not consider DOL’s regulations and interpretations except as explanatory where OPM has remained silent, the court’s findings would be the same under either party’s version of the role of DOL’s regulations. A. Fair Labor Standards Act FLSA states that an employee who works more than forty hours per week must receive overtime pay at the rate of one and one-half times the employee’s normal compensation. 29 U.S.C. § 207(a). Federal, state and local law enforcement employees’ overtime compensation, however, is based on a longer work week. The length of this work week is determined by the Secretary of Labor (“Secretary”). Id. § 207(k). However, any such employee who is classified as executive, administrative, or professional is exempt from the overtime provisions of FLSA. Id. § 213(a)(1). FLSA grants authority to the Secretary of Labor to determine the scope of this exemption for all private, local and state employees, as well as for certain enumerated federal employees. Id. § 213(a)(1); id. § 204(f). OPM has the authority to determine the scope of the exemptions for those employees in the federal sector not specifically reserved to the Secretary’s authority. Id. § 204(f). Plaintiffs argue that explicit inclusion of public employees engaged in law enforcement activities under FLSA overtime provisions in § 207(k) mandates a finding that all criminal investigators, regardless of their duties and regardless of the provisions of § 213(a)(1), receive overtime compensation. Plaintiffs argue, in effect, that § 207(k) takes precedence over § 213(a)(1) — that because they are law enforcement personnel, they cannot simultaneously be administrative employees. Relying on Roney v. United States, 790 F.Supp. 23 (D.D.C.1992), plaintiffs contend that if the court finds them exempt from FLSA overtime provisions, the exemption of § 213(a)(1) would effectively “swallow the rule” of § 207(k). Roney, 790 F.Supp. at 28. The court agrees that finding criminal investigative work to be per" }, { "docid": "6101237", "title": "", "text": "(“AFGE ”), which invalidated an OPM regulation that presumptively exempted from FLSA’s overtime requirements federal employees classified at GS-11 or above, as well as an OPM regulation defining “executive” employee that did not require the “executive” employee to “customarily and regularly” direct the work of others. Id. at 771. The court held that OPM’s regulation was inconsistent with FLSA and vacated it: Since the presumption [of exemption for GS-lls and above] appears to guide or direct the agency to act inconsistently with FLSA and places an unwarranted and, at minimum, confusing burden on the employee, [the regulation] is flawed and must be vacated as inconsistent with the ‘meaning, scope, and application’ of the FLSA. Id. In concluding that there was a requirement for consistency, the court relied on legislative history to the 1974 amendments to FLSA indicating that Congress wanted OPM to exercise its administrative powers consistently with DoL: the [OPM] will administer the provisions of the [FLSA] in such a manner as to assure consistency with the meaning, scope, and application established by the rulings, regulations, interpretations, and opinions of the Secretary of Labor which are applicable in other sectors of the economy. Id. at 769 (quoting Fair Labor Standards Amendments of 1974, H.R. Rep. 93-913 at 28 (1974), reprinted in 1974 U.S.C.C.A.N. 2811, 2837-38) (“House Report”). The law of this circuit is similar. Explaining that the proper standard is whether “OPM’s interpretive guidelines ‘harmonize with the statute’s origin and purpose,’ ... as well as with the Secretary of Labor’s regulations,” the Federal Circuit upheld the method OPM used to calculate overtime for firefighters as consistent with FLSA and the DoL regulations. See Zumerling, 769 F.2d at 750. Applying these standards, this court has also invalidated OPM regulations which impermissibly strayed from FLSA, as measured by their deviation from DoL regulations. See Adams v. United States, 36 Fed. Cl. 91, 97 (1996). However, this court has also made it clear that not every inconsistency is fatal to OPM’s regulations. “It would be inappropriate ... to elevate a statement in the committee report to an ironclad rule barring any inconsis" }, { "docid": "12210296", "title": "", "text": "providing training for incoming border patrol agents. Mr. Gutierrez serves directly under the Chief Patrol Agent, making his position second ranking at the Academy. He supervises the Training Operations Supervisor and the Course Development Instructors. He is on call 24 hours a day. His primary duties clearly involve all three elements of the primary duty test. Plaintiffs’ duties also satisfy the more rigorous “executive exemption.” The exemption applies, insofar as relevant here, to: [A] supervisor or manager who manages a Federal agency or any subdivision thereof (including the lowest recognized organizational unit with a continuing function) and customarily and regularly directs the work of subordinate employees and meets ... the following criteria: (a) Primary duty test. The primary duty test is met if the employee— (1) Has authority to make personnel changes that include, but are not limited to, selecting, removing, advancing in pay, or promoting subordinate employees, or has authority to suggest or recommend such actions with particular consideration given to these suggestions and recommendations; and (2) Customarily and regularly exercises discretion and independent judgment in such activities as work planning and organization; work assignment, direction, review, and evaluation; and other aspects of management of subordinates, including personnel administration. 5 C.F.R. § 551.205. Plaintiffs contend that these Office of Personnel Management (OPM) standards for executive exemption, are in conflict with the comparable Department of Labor (DoL) standards and therefore may not be used. Defendant points out this dispute was resolved earlier in the litigation, in favor of the OPM regulations. In Adams v. United States, 40 Fed.Cl. 303, 305 (1998), the court stated, “it is clear from the plain language of the statute that OPM is empowered to administer FLSA with respect to plaintiffs.” The court held that “[i]t is contrary to Congress’s express wish to ... requir[e] OPM to precisely mimic DoL’s every regulatory move.” Id. at 308. Assuming the DoL standards apply, plaintiffs point to the fact that the term “executive,” as defined by the DoL, requires that the employee have authority to recommend selection and removal: (c) Who has the authority to hire or fire other" }, { "docid": "12612333", "title": "", "text": "Section 1302 defines four different kinds of regulations OPM may prescribe: those pertaining to \"examinations for the competitive service,” 5 U.S.C. § 1302(a) (1982), those ensuring that \"preference eligibles\" receive due preference in personnel actions in both the “competitive” and \"excepted\" service, 5 U.S.C. §§ 1302(b)-(c) (1982), and those pertaining to political activity of certain state or local employees, 5 U.S.C. § 1302 (d) (1982). Section 3502 grants OPM authority to prescribe regulations for the release of employees during a RIF, but does not explicitly speak to such employees’ appeal rights. . This disposition makes it unnecessary to address appellants’ claim that Crispin v. Dep't of Commerce, 732 F.2d 919 (Fed.Cir.1984), implicitly circumscribes OPM’s authority to limit the availability of a full MSPB hearing. . Appellants observe that Congress has, on other occasions, been more explicit in its grant to OPM of regulatory authority. They urge us to assume the lack of such explicit authority here indicates Congress’ desire not to grant OPM regulatory authority over FLSA matters. While such contrasting degrees of specificity may be indicative of congressional intent in certain situations, (particularly where more specific grants of regulatory authority appear elsewhere in the same Act), we are not persuaded that Congress intended by its language to deny OPM regulatory authority. . Appellants also object to OPM’s failure to include in its definition of \"executive” employee, 5 C.F.R. § 551.204, a requirement that such employees spend at least 50 percent of their time supervising other employees. Yet while the comparable DOL regulation, 29 C.F.R. § 541.103 (1986) does establish this 50 percent figure as a guideline for identifying executive employees, it is not a hard-and-fast requirement. We see no specific inconsistency between the OPM and DOL regulations here. Since appellants’ final objection, that OPM’s regulation does not limit the \"executive employee” exemption to salaried employees, does not point to specific contradictory FLSA regulations, we shall not entertain it." }, { "docid": "6101240", "title": "", "text": "exempted from FLSA’s overtime requirements under the OPM regulations, which do not contain a salary basis test or a disciplinary deduction rule. The court notes at the outset that while it is true that the disciplinary-deduction rule of DoL’s salary basis test would be fatal to exemption in this case, it does not necessarily follow that OPM’s regulations would reach a different result if applied to plaintiffs. Insofar as relevant here, the OPM and DoL regulations defining the executive exemption are similar in most respects. Both look to the whether the employee has duties that are primarily management in nature, whether the employee supervises others, whether the employee has hiring or firing authority, and the degree of discretion the employee regularly exercises. Compare 5 C.F.R. § 551.204 vnth 29 C.F.R. § 541.1. Indeed, plaintiffs’ alternative argument is that, even absent the disciplinary-deduction rule, they are exempt under OPM’s own regulations. Plaintiffs assert, however, that the issue was definitively resolved in their favor by Auer v. Robbins. Plaintiffs are incorrect. Auer did not address the issue before the court, which is whether OPM’s regulations are inconsistent with FLSA because they failed to include a salary-basis test or disciplinary-deduction rule. Instead, Auer involved a straightforward Chevron analysis of DoL’s own regulations applied to entities entirely and solely within DoL’s jurisdiction. See 519 U.S. at -, 117 S.Ct. at 909. Moreover, the Court in Auer never mandated a salary basis test by either the DoL or OPM, but merely extended the customary deference to DoL’s regulations: “Because the FLSA entrusts matters such as this to the Secretary, not the federal courts, we cannot say that the disciplinary-deduction rule is invalid as applied to law-enforcement personnel.” Id. at-, 117 S.Ct. at 910. In addition, the Court agreed that applying private-sector standards to the public sector might pose potential Administrative Procedure Act problems: The more fundamental objection respondents have to the disciplinary-deduction rule is a procedural one: The Secretary has failed to give adequate consideration to whether it really makes sense to apply the rule to the public sector. Respondents’ amici make the claim more" }, { "docid": "6101234", "title": "", "text": "significance,” 29 C.F.R. § 541.118(a)(5) (“disciplinary deduction rule”), but not for anything other than violating a major safety rule. See Auer v. Robbins, 519 U.S. 452,-, 117 S.Ct. 905, 909, 137 L.Ed.2d 79 (1997). Thus, DoL’s disciplinary deduction rule forbids piecemeal pay deductions from salary for other than major safety violations. The record here shows that the Border Patrol has suspended, or proposed suspensions for, several plaintiffs for a variety of non-safety offenses, such as losing a pager, failing to exercise supervisory review of reports, inappropriate comments to a female subordinate employee, taking home a service vehicle, and making unscheduled shift changes. In addition, the government concedes that an employee classified as a “Supervisory Border Patrol Agent” or a “Supervisory Aircraft Pilot” can be suspended for non-safety rule violations, such as unhygienic personal appearance. Plaintiffs, in short, offer substantial evidence that they are at risk for suspension for non-safety violations. They therefore argue they are entitled to overtime pay on the following reasoning: (1) their entitlement to overtime pay should be assessed under DoL, rather than OPM, regulations; (2) DoL regulations require executive employees to meet the salary-basis test in order to qualify for exempt status; and (3) they do not meet the salary-basis test because they face the realistic possibility of salary reduction of less than a full pay period (i.e., suspensions) for reasons other than major safety violations. The government’s response is that plaintiffs fall under OPM’s jurisdiction, not DoL’s, and that OPM regulations do not contain a salary-basis test or a disciplinary-deduction rule. Instead, OPM defines the executive exemption by focusing on the nature of the employee’s job. See 5 C.F.R. § 551.204 (1997). According to the government, OPM’s regulation is a proper construction of FLSA that is owed deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). DISCUSSION When Congress expanded FLSA’s coverage to include federal employees, OPM was given responsibility to administer the act with respect to most federal employees (subject to certain exceptions not relevant here): Notwithstanding any other provision of this chapter," }, { "docid": "6101233", "title": "", "text": "is primarily responsible for administering FLSA. See id. § 204. But in the case of most federal employees, including plaintiffs, the statute is administered by the Office of Personnel Management (“OPM”). See id. §§ 204(f), 213(a). Plaintiffs maintain that if DoL regulations were applied to them instead of OPM regulations, they would be considered exempt from FLSA’s overtime pay requirements. In order for a position to be exempt under DoL regulations defining executives, an employee must, among other things, be paid on a salary basis. See 29 C.F.R. pt. 541 (1997). This means the employee must receive “on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.118(a). The salary-basis test is further refined to permit certain penalty deductions from pay as consistent with salaried employment, but disallow others. Consistent with salaried status, employees may be suspended without pay for “infractions of safety rules of major significance,” 29 C.F.R. § 541.118(a)(5) (“disciplinary deduction rule”), but not for anything other than violating a major safety rule. See Auer v. Robbins, 519 U.S. 452,-, 117 S.Ct. 905, 909, 137 L.Ed.2d 79 (1997). Thus, DoL’s disciplinary deduction rule forbids piecemeal pay deductions from salary for other than major safety violations. The record here shows that the Border Patrol has suspended, or proposed suspensions for, several plaintiffs for a variety of non-safety offenses, such as losing a pager, failing to exercise supervisory review of reports, inappropriate comments to a female subordinate employee, taking home a service vehicle, and making unscheduled shift changes. In addition, the government concedes that an employee classified as a “Supervisory Border Patrol Agent” or a “Supervisory Aircraft Pilot” can be suspended for non-safety rule violations, such as unhygienic personal appearance. Plaintiffs, in short, offer substantial evidence that they are at risk for suspension for non-safety violations. They therefore argue they are entitled to overtime pay on the following reasoning: (1) their entitlement to overtime pay should be assessed under DoL, rather" }, { "docid": "6101238", "title": "", "text": "rulings, regulations, interpretations, and opinions of the Secretary of Labor which are applicable in other sectors of the economy. Id. at 769 (quoting Fair Labor Standards Amendments of 1974, H.R. Rep. 93-913 at 28 (1974), reprinted in 1974 U.S.C.C.A.N. 2811, 2837-38) (“House Report”). The law of this circuit is similar. Explaining that the proper standard is whether “OPM’s interpretive guidelines ‘harmonize with the statute’s origin and purpose,’ ... as well as with the Secretary of Labor’s regulations,” the Federal Circuit upheld the method OPM used to calculate overtime for firefighters as consistent with FLSA and the DoL regulations. See Zumerling, 769 F.2d at 750. Applying these standards, this court has also invalidated OPM regulations which impermissibly strayed from FLSA, as measured by their deviation from DoL regulations. See Adams v. United States, 36 Fed. Cl. 91, 97 (1996). However, this court has also made it clear that not every inconsistency is fatal to OPM’s regulations. “It would be inappropriate ... to elevate a statement in the committee report to an ironclad rule barring any inconsis tency. Congress knows how to expressly limit grants of authority.” Riggs v. United States, 21 Cl.Ct. 664, 681 (1990). Indeed, a perfect mesh between Title 5 and Title 29 cannot be expected or required. See Abreu v. United States, 22 Cl.Ct. 230, 238 (1991), aff'd, 948 F.2d 1229 (Fed.Cir.1991). Instead, the inquiry must begin and end with the statute. Adverting to the DoL regulations as presumptively the proper interpretation still leaves room for non-identical regulations for federal employees, where justified. As the court wrote in Adams, 36 Fed.Cl. at 97, “[t]he best evidence of that intent [the meaning of the statute] is found in the DOL regulations,” but in that case the government “had not justified a contrary practice for federal employees.” Id. The beginning and ending question is thus: Is OPM’s regulation defining the executive exemption impermissibly inconsistent with FLSA? According to plaintiff, OPM’s regulation must be invalidated (and DoL’s regulation applied) because an employee who would remain non-exempt under DoL’s regulations by virtue of the disciplinary-deduction rule, 29 C.F.R. § 541.118(a), would be" }, { "docid": "6101232", "title": "", "text": "OPINION BRUGGINK, Judge. This overtime pay dispute is before the court on the parties’ cross-motions for summary judgment. The motions have been fully briefed and argued, and are ready for disposition. For the reasons set forth below, both motions are denied. BACKGROUND Plaintiffs are or were approximately 300 “Supervisory Border Patrol Agents” and “Supervisory Aircraft Pilots” employed by the U.S. Border Patrol at grades ranging from GS-11 to GS-14. They worked an unknown amount of overtime but were not paid for it because defendant considers “Supervisory Border Patrol Agents” and “Supervisory Aircraft Pilots” to be exempt from the Fair Labor Standard Act’s overtime pay requirements because they are “executives.” The Fair Labor Standards Act (“FLSA”), 29 U.S.C.A. §§ 201-219 (West Supp.1997), requires an employer, including the federal government, to compensate an employee for overtime work at a rate of at least one-and-one-half times the employee’s regular rate of pay. Id. § 207(a). However, “bona fide executive, administrative, or professional” employees are exempt from the FLSA’s overtime provisions. Id. § 213(a). The Department of Labor (“DoL”) is primarily responsible for administering FLSA. See id. § 204. But in the case of most federal employees, including plaintiffs, the statute is administered by the Office of Personnel Management (“OPM”). See id. §§ 204(f), 213(a). Plaintiffs maintain that if DoL regulations were applied to them instead of OPM regulations, they would be considered exempt from FLSA’s overtime pay requirements. In order for a position to be exempt under DoL regulations defining executives, an employee must, among other things, be paid on a salary basis. See 29 C.F.R. pt. 541 (1997). This means the employee must receive “on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.118(a). The salary-basis test is further refined to permit certain penalty deductions from pay as consistent with salaried employment, but disallow others. Consistent with salaried status, employees may be suspended without pay for “infractions of safety rules of major" }, { "docid": "6101247", "title": "", "text": "nature of the offense itself’). For instance, misconduct that would merit a three-day suspension would either have to be reduced to a reprimand or increased to a fourteen-day suspension. Nothing in FLSA or its legislative history indicates that Congress intended this bizarre result. Finally, plaintiffs’ argument thwarts the compromise reached in Congress, namely that OPM would administer FLSA. That compromise was considered necessary because of the perception that concurrently administering two sets of laws would result in confusion. See Zumerling, 769 F.2d at 749-50. Indeed, this court has commented on the uneasy relationship between FLSA and the civil service system. See Abreu, 22 Cl.Ct. at 232, 238. To alleviate potential confusion, Congress expressly carved out a jurisdictional role for OPM over most federal employees. See 29 U.S.C. § 204(f); see also House Report, 1974 U.S.C.C.A.N. at 2837. It is contrary to Congress’s expressed wish to undermine that compromise by requiring OPM to precisely mimic DoL’s every regulatory move. This court has previously observed the tension between the legislative history of FLSA and the plain meaning of the statute. See Riggs, 21 Cl.Ct. at 681. As discussed above, the reading of FLSA urged by plaintiffs, namely, that OPM must include a salary basis test and disciplinary deduction rule in its regulations, makes little sense in the federal sector. Moreover, Plaintiffs’ interpretation of FLSA ignores the clear statutory mandate that OPM administer FLSA with respect to federal employees, and leads to “ ‘absurd or futile results ... plainly at variance with the policy of the legislation as a whole,’ which this Court need not and should not countenance.” EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 120, 108 S.Ct. 1666, 1674, 100 L.Ed.2d 96 (1987) (internal quotes and cites omitted). Simply put, there is no good reason to require OPM to include in its regulations DoL’s salary-basis test or the disciplinary-deduction exception to the salary-basis test. The Government’s Motion Aside from its conelusory Proposed Finding of Fact # 4, the government has offered no evidence to discharge its burden of establishing that plaintiffs are employees exempt from FLSA’s overtime provisions. The" }, { "docid": "6101239", "title": "", "text": "tency. Congress knows how to expressly limit grants of authority.” Riggs v. United States, 21 Cl.Ct. 664, 681 (1990). Indeed, a perfect mesh between Title 5 and Title 29 cannot be expected or required. See Abreu v. United States, 22 Cl.Ct. 230, 238 (1991), aff'd, 948 F.2d 1229 (Fed.Cir.1991). Instead, the inquiry must begin and end with the statute. Adverting to the DoL regulations as presumptively the proper interpretation still leaves room for non-identical regulations for federal employees, where justified. As the court wrote in Adams, 36 Fed.Cl. at 97, “[t]he best evidence of that intent [the meaning of the statute] is found in the DOL regulations,” but in that case the government “had not justified a contrary practice for federal employees.” Id. The beginning and ending question is thus: Is OPM’s regulation defining the executive exemption impermissibly inconsistent with FLSA? According to plaintiff, OPM’s regulation must be invalidated (and DoL’s regulation applied) because an employee who would remain non-exempt under DoL’s regulations by virtue of the disciplinary-deduction rule, 29 C.F.R. § 541.118(a), would be exempted from FLSA’s overtime requirements under the OPM regulations, which do not contain a salary basis test or a disciplinary deduction rule. The court notes at the outset that while it is true that the disciplinary-deduction rule of DoL’s salary basis test would be fatal to exemption in this case, it does not necessarily follow that OPM’s regulations would reach a different result if applied to plaintiffs. Insofar as relevant here, the OPM and DoL regulations defining the executive exemption are similar in most respects. Both look to the whether the employee has duties that are primarily management in nature, whether the employee supervises others, whether the employee has hiring or firing authority, and the degree of discretion the employee regularly exercises. Compare 5 C.F.R. § 551.204 vnth 29 C.F.R. § 541.1. Indeed, plaintiffs’ alternative argument is that, even absent the disciplinary-deduction rule, they are exempt under OPM’s own regulations. Plaintiffs assert, however, that the issue was definitively resolved in their favor by Auer v. Robbins. Plaintiffs are incorrect. Auer did not address the issue" }, { "docid": "15247629", "title": "", "text": "of calculating appellants’ regular rates of pay was in accordance with the FLSA. Id. at 749. . \"Workweek” is defined as \"a fixed and recurring period of 168 hours-seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of a day.” 5 C.F.R. § 551.104. . OPM was \"instructed by the Congress to administer the 1974 Amendments [to the FLSA, see 29 U.S.C. § 203(e)(2),] in a manner consistent with the Department of Labor’s administration of FLSA in the private sector,” Lanehart v. Horner, 818 F.2d 1574, 1578 (Fed.Cir.1987); see also Billings v. United States, 322 F.3d 1328, 1331 (Fed.Cir.2003). However, this court has previously stated that \"[i]t would be inappropriate ... to elevate [this] statement in the committee report to an ironclad rule barring any inconsistency.” Riggs v. United States, 21 Cl.Ct. 664, 681 (1990). Plaintiffs have not argued that the Office of Personnel Management’s administration of the FLSA is inconsistent with the Department of Labor’s administration of the FLSA. . Pis.’ Brief 4 n. 3 (citing Astor v. United States, 79 Fed.Cl. 303, 310 (2007); Aamold v. United States, 39 Fed.Cl. 735, 739 n. 4 (1997) (\"OPM’s regulations and interpretations must be consistent with the FLSA itself and with the standards set by DOL for the private sector. While OPM regulations are controlling and are entitled to great deference, the court also can consider DOL's regulations.”)); see Bates v. United States, 60 Fed.Cl. 319, 321 n. 3 (2004) (\"While caution dictates against simply importing DOL-created standards into the federal sector without any conscious rulemaking at either DOL or OPM, we believe it is appropriate to look to them for persuasive guidance where the OPM regulations are unclear.” (internal quotation omitted)); see also Alexander v. United States, 1 Cl.Ct. 653, 657 n. 5 (1983) (\"Although the Department of Labor’s regulations are not controlling in deciding the validity of FPM Letter 551.5, they are persuasive, because Congress intended OPM’s administration of the Act to be consistent with the Department of Labor’s Administration of the Act.” (citation omitted)). ." }, { "docid": "19997956", "title": "", "text": "descriptions in reviewing FLSA exemption determinations. Amshey, slip op. at 28; Campbell v. United States Air Force, 755 F.Supp. 893, 894-95 (E.D.Cal.1990), vacated on other grounds, Campbell v. United States Air Force, 972 F.2d 1352 (Fed.Cir.1992). The court now turns to the application of FLSA to plaintiffs’ claims. Part I of the court’s opinion describes the four part test set out in the regulations that is used to determine whether plaintiffs are exempt from FLSA overtime provisions. Part II of the opinion applies the test to the various position descriptions that are the subject of the cross-motions. 1. Interpretation of the Fair Labor Standards Act Interpretation of FLSA requires examination of the United States Code, the Code of Federal Regulations, and the Federal Personnel Management (FPM) System Letters promulgated by the Civil Service Commission (CSC), precursor to the Office of Personnel Management (OPM), interpreting the language of the relevant CFR sections. An analogous set of regulations, promulgated by the Department of Labor (DOL), established to administer FLSA in the private and some of the public sector, further complicates the labyrinth of rules used to interpret FLSA. The parties dispute the extent to which DOL’s regulations control OPM’s administration of FLSA over plaintiffs. While the court finds that OPM’s regulations are controlling, and that it need not consider DOL’s regulations and interpretations except as explanatory where OPM has remained silent, the court’s findings would be the same under either party’s version of the role of DOL’s regulations. A. Fair Labor Standards Act FLSA states that an employee who works more than forty hours per week must receive overtime pay at the rate of one and one-half times the employee’s normal compensation. 29 U.S.C. § 207(a). Federal, state and local law enforcement employees’ overtime compensation, however, is based on a longer work week. The length of this work week is determined by the Secretary of Labor (“Secretary”). Id. § 207(k). However, any such employee who is classified as executive, administrative, or professional is exempt from the overtime provisions of FLSA. Id. § 213(a)(1). FLSA grants authority to the Secretary of Labor to" }, { "docid": "12612320", "title": "", "text": "FLSA by including federal employees within the coverage of the Act, see House Report at 28, and giving the Civil Service Commission [now OPM] the authority “to administer the provisions [of FLSA] with respect to any individual employed by the United States____” 29 U.S.C. § 204(f) (1982). The House Report indicates, however, that in resolving any conflicts between the two, “the Commission will administer the provisions of the [FLSA] in such a manner as to assure consistency with the meaning, scope, and application established by the rulings, regulations, interpretations, and opinions of the Secretary of Labor which are applicable in other sectors of the economy.” House Report at 28. Emphasizing the point, the House Report goes on to say “[t]he provisions of the [FLSA amendments] would leave the premium pay provisions of Title 5, United States Code, in effect to the extent that they are not inconsistent with the Fair Labor Standards Act. ” Id. (emphasis added). Appellants challenge regulations promulgated by OPM pursuant to its authority to “administer” the FLSA in the civil service. Among other provisions, the regulations establish a rebuttable presumption that any federal employee classified at GS-11 or higher (regardless of his actual job duties) is not eligible to receive overtime pay, 5 C.F.R. § 551.203 (1986). Appellants raise two objections to OPM’s actions: that OPM had. no statutory authority to promulgate formal overtime regulations; and that, in any event, this regulation conflicts with the Department of Labor’s interpretation of the FLSA, which establishes only narrow exemptions to overtime eligibility for executive, administrative, and professional employees, and recognizes a presumption that employees are eligible for overtime compensation. Whether, as the government argues, OPM has authority to issue formal substantive regulations, or must instead, as appellants contend, confine itself to issuing interpretive rules and acting as a management advisor, turns on what Congress meant by giving the Civil Service Commission authority to “administer” the FLSA. “What is important is that [we] reasonably be able to conclude that the grant of authority contemplates the regulations issued.” Chrysler Corp. v. Brown, 441 U.S. 281, 308, 99 S.Ct. 1705, 1720," } ]

[ { "docid": "22362676", "title": "", "text": "especially disruptive in the present context of seasonal rates proposed under § 202 (d) of the 4-R Act. The policies underlying that provision favor greater freedom of action by the railroads, greater rate flexibility, especially with respect to short-term rates, and more limited supervision by the Commission — all of which would be disserved if the courts may examine the Commission’s initial investigation decisions with respect to temporary rate adjustments. Furthermore, an increase in the number of rate investigations in which the railroad, rather than the challenging party, bears the burden of proof and in which the challenger need not prove actual damages before recovering refunds would be out of place in a regulatory system that leaves “the initiative in setting rates . . , with the railroad.” Aberdeen & Rockfish R. Co. v. SCRAP, 422 U. S. 289, 311. There is an additional structural reason why the Commission’s investigation decisions are unreviewable. Section 15 (8) was originally included in the Mann-Elkins Act of 1910, 36 Stat. 552. As adopted, and as it has remained during the ensuing 70 years, the provision has given the Commission the power not only to investigate but also to suspend proposed rates. 49 U. S. C. § 15 (8)(b). Congress phrased the two powers in precisely the same language and placed the same time limits on the exercise of both. See Asphalt Roofing Mfg. Assn. v. ICC, 186 U. S. App. D. C. 1, 8-9, 567 F. 2d 994, 1001-1002 (1977); n. 2, supra. The two powers are inextricably linked because the Commission has no occasion to suspend a rate unless it also intends to investigate it. See United States v. Chesapeake & Ohio R. Co., 426 U. S. 500, 512-513 (Chessie). In view of this linkage, we need look no further than our previous decisions concluding that the merits of a suspension decision are not reviewable to find a sufficient answer to the question presented in these cases. Aberdeen & Rockfish R. Co. v. SCRAP, supra, at 311; United States v. SCRAP, 412 U. S., at 691-692, 698; Arrow Transportation Co. v. Southern" } ]

[ { "docid": "5948454", "title": "", "text": "on consideration of an incentive rate case may be onerous, it does not excuse the failure to address all the issues raised, nor does it excuse the failure to adequately explain holdings. . Cf. Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979) and Georgia Power Co. v. United States, 617 F.2d 107 (5th Cir. 1980), both holding appellate courts have no jurisdiction to review a Commission’s decision not to investigate a rate under § 10707. In this case, there has been an investigation of market dominance and jurisdiction is clearly established under § 10709(b) establishing judicial review over determinations of market dominance. . We define “court-generated remand” and contrast it with “voluntary remand”, supra, p. 145. . The railroads suggest that judicial review without Commission correction of legal error would at least have precedential value in future cases. . Our review of Commission decisions reveals this to be the first case involving unit coal train traffic in which, after an investigation, the Commission did not find one of the presumptions to apply and market dominance to exist. In only one case brought to our attention has the Commission said there was no market dominance in a coal movement. In Increased Rate on Coal-Arco, Tennessee to Harllee, Georgia, SOU and CGA, Docket No. I & S 9217, Decision Served August 23, 1979 (by Division 1) (unprinted), reconsideration denied, Decision served October 19, 1979 (by Commission) (unprinted), petition denied sub nom. Georgia Power Co. v. United States, 617 F.2d 107 (5th Cir. 1980), the Commission refused to investigate a coal traffic rate under § 10707 because of the protestants’ failure to demonstrate a likelihood of success and because intramodal competition indicated no market dominance. This was a one page decision cursorily finding no market dominance without an investigation or elaboration and as such lends no support to the Commission’s conclusion in this case. . We are not convinced that the record has evidence of only docketing the rate for CP&L’s traffic. In evidence concerning the railroads’ negotiation with CP&L, one railroad witness" }, { "docid": "8146609", "title": "", "text": "such review would necessarily infringe on the statutory role of the agency. In Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963), the Supreme Court held that under the Interstate Commerce Act, now codified at 49 U.S.C.A. § 10101 et seq. (1979), the courts have no power to suspend railroad rates pending a hearing by the Interstate Commerce Commission (ICC). The Court said that the power to suspend rates is vested solely and exclusively in the ICC. Id. at 667, 83 S.Ct. at 988. The Court reasoned that any judicial authority to suspend rates “would create the hazard of forbidden judicial intrusion into the administrative domain,” id. at 670, 83 S.Ct. at 990, because it necessarily would involve inquiry into the reasonableness of rates. Id. More recently, in Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979), the Supreme Court unanimously held that an ICC decision not to suspend a proposed railroad rate increase, and not to conduct an investigation of its lawfulness, is not reviewable under the Interstate Commerce Act. Accord, Asphalt Roofing Manufacturers Ass’n v. ICC, 567 F.2d 994 (D.C.Cir. 1977). In Southern Railway, after the railroad filed an increased tariff with the ICC, protestant shippers filed motions to suspend the new rates and to investigate their lawfulness, contending that the new rates were “patently] illegal[].” 442 U.S. at 451, 99 S.Ct. at 2392. Without holding a hearing, the ICC refused to suspend the rates and allowed them to become effective without investigation. The shippers sought review in the courts. The Supreme Court held that the ICC order was not judicially reviewable because it was not a decision on the merits, id., and because its consequences to the protestant shippers were relatively minor, id. at 454-455, 99 S.Ct. at 2394, 2397. It noted that the shippers could file charges with the ICC alleging that the rates were unlawful, thereby initiating an investigation under 49 U.S.C. §§ 13 and 15 (1976). The Court held that the investigation provision, Section 15(8) of the" }, { "docid": "937433", "title": "", "text": "Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 454, 99 S.Ct. 2388, 2394, 60 L.Ed.2d 1017 (1979); Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658, 667-669, 83 S.Ct. 984, 988-990, 10 L.Ed.2d 52 (1963). As the court in Papago observed, “It would make little sense to declare orders concerning suspension and investigation unreviewable if the courts may review the related order to accept a rate filing.” (At 243) The Papago decision relied upon a series of Supreme Court cases, including the Southern Railway decision, in which it was held that appellate courts have no power to interfere with agency discretion by undertaking to review suspension, investigation, and rejection decisions. 442 U.S. at 452, 99 S.Ct at 2393, 60 L.Ed.2d 1017 (1979). In the Southern Railway case the Interstate Commerce Commission accepted a railroad tariff increase without suspension, investigation, or hearing, despite assertions by protestant shippers that the rates were patently illegal. 442 U.S. at 449, 99 S.Ct. at 2391. The Court held the ICC actions to be non-final and unreviewable because the complaint procedure of the Interstate Commerce Act, “which allows shippers to initiate mandatory post-effec- ■ tive proceedings to inquire into and remedy violations of the Act, would still be available to ‘protect’ persons aggrieved by the rates.” 442 U.S. at 450, 99 S.Ct. at 2392 (footnote omitted). In the present case, as in Southern Railway, there has been an acceptance of a tariff increase without suspension, investigation, or a hearing, and a complaint procedure under the Communications Act comparable to that of the Interstate Commerce Act is available for former TELPAK customers. The Papago and Southern Railway cases require us to hold that the availability of a statutory complaint procedure renders the FCC’s acceptance decision in this case non-final. b. The Commission’s waiver of Rule 61.-38 is not reviewable. Cost justification information is submitted pursuant to the FCC’s tariff filing rules primarily to aid the Commission in exercising its discretion as to investigation and suspension of tariff filings. Tariffs-Evidence, 40 F.C.C.2d 149, 152-153 (1973). It follows that the FCC’s determination as to what data" }, { "docid": "21547061", "title": "", "text": "paragraph), the Fifth Circuit cited a similar statement in an earlier Fifth Circuit opinion, Southern Pac. Transp. Co. v. San Antonio, 748 F.2d 266, 274 (5th Cir.1984), which, in turn, relied upon the authority of a line of Supreme Court cases culminating in Burlington Northern Inc. v. United States, 459 U.S. 131, 103 S.Ct. 514, 74 L.Ed.2d 311 (1982). See Consolidated Rail Corp. v. National Ass’n of Recycling Indus., Inc., 449 U.S. 609, 101 S.Ct. 775, 66 L.Ed.2d 776 (1981) (per curiam); Atchison, T. & S.F. R. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973); United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Arrow Transp. Co. v. Southern Ry. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963). We do not think these Supreme Court cases support the “no referral” rule adopted by the Fifth Circuit in Supreme Beef. The Supreme Court cases cited involved efforts by federal courts to enjoin the future application of rates the carrier had filed with the Interstate Commerce Commission. In Burlington Northern, for example, a federal circuit court of appeals held that a carrier could not collect new rates that had been filed with the ICC, rates that the ICC had under scrutiny. The Supreme Court reversed this decision on the grounds that it would frustrate the Interstate Commerce Act’s regulatory regime in several ways. For example, it would “undermine[J” the agency’s “primary jurisdiction.” See Burlington, 459 U.S. at 142, 103 S.Ct. at 521; Wichita Bd. of Trade, 412 U.S. at 820-26, 93 S.Ct. at 2381-84. It would threaten ■wotiuniformity in ratemaking. See Burlington, 459 U.S. at 139, 103 S.Ct. at 520; Arrow Transp., 372 U.S. at 663, 668, 83 S.Ct. at 989; SCRAP, 412 U.S. at 696-98, 93 S.Ct. at 2420-21. And it would prove “inequitable,” for a shipper forced to pay a high filed rate has a perfectly good “reparations” action if the ICC later decides that the filed rate was unreasonably high, but a carrier forced to collect a lower-than-filed-rate can never recover the high" }, { "docid": "23205424", "title": "", "text": "89 L.Ed. 1051] (1945); Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 U.S. 516, 520 [59 S.Ct. 612, 614, 83 L.Ed. 953] (1939); Farley Terminal Co., Inc. v. Atchison, T. & S. F. Ry. Co., 522 F.2d 1095, 1098 (9th Cir. 1975). It is also well established that a court has no power to suspend or enjoin the effectiveness of a rate on file with the Commission. See, e. g., [Southern Ry. Co. v.] Seaboard Allied Milling Corp. v. Southern Ry. Co. [442 U.S. 444], 99 S.Ct. 2388 [60 L.Ed.2d 1017] (1979); United States v. SCRAP, 412 U.S. 669 [93 S.Ct. 2405, 37 L.Ed.2d 254] (1973); Arrow Transportation Co. v. Southern Ry., 372 U.S. 658 [83 S.Ct. 984, 10 L.Ed.2d 52] (1963). The principle of those cases would also preclude courts from ordering a carrier to file a superceding tariff with the Commission in accordance with its contract because such an order would have the same effect as suspending a rate on file with the Commission. In light of these authorities, the Commission has concluded that if it declines to give any consideration to contracts between shippers and carriers when assessing the reasonableness of a rate increase, shippers would be without an effective remedy and the result would significantly undermine the Commission’s policy in Ex Parte No. 358-F. The foregoing legal considerations are reinforced by considerations of sound regulatory and transportation policy. Consideration of the weight to be given to contracts by the Commission rather than by many different federal and state courts will ensure national uniformity in the standards to be applied to rate matters, which is a fundamental purpose of the Interstate Commerce Act. See United States v. Radio Corporation of America, 358 U.S. 334, 346-348 [79 S.Ct. 457, 464-465, 3 L.Ed.2d 354] (1959); Texas and Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 440 [27 S.Ct. 350, 355, 51 L.Ed. 553] (1907). Such consideration by the Commission facilitates implementation of federal transportation and regulatory policies in a consistent manner. Accordingly, the Commission will now consider rate contract allegations when raised in Commission proceedings. In regard to" }, { "docid": "7678865", "title": "", "text": "93 S.Ct. 2405, n. 17. Moreover, the Court in SCRAP recognized the validity of a Court’s inquiry into the agency’s motive behind the use of its suspension power. We also note that while the orders questioned here may be technically moot since the six month suspension period has expired, we feel compelled to reach the merits since this again would effectively shield any action taken as a suspension order from review. To dismiss the petition as moot would result in its being “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). See also Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). J. SKELLY WRIGHT, Circuit Judge (dissenting): I regret my inability to join the opinion of the court or the result it reaches. The issue raised in Appeal No. 73-1714 appears to be moot. With respect to the suspension order there challenged, .the six-month maximum period of suspension permitted by Section 1002(g) of the Act, 49 U.S.C. § 1482(g) (1970), has expired. In any event, in my judgment this court does not have jurisdiction to review the suspension order. See United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963); compare Moss v. CAB, 139 U.S.App.D.C. 150, 430 F.2d 891 (1970). Appeal No. 73—1718 challenges the Board’s Phase 6A decision which is described in detail in the court’s opinion. But the Phase 6A decision is merely a statement of general policy for future application of an ad hoc basis. We cannot review the application of that policy to petitioner until we have before us the Board’s final order stemming from the investigation in which it entered the now expired suspension order (the subject of Appeal No. 73-1714). Until then, there is no “administrative decision [which] has been formalized and its effects felt in a" }, { "docid": "15729138", "title": "", "text": "suspension. Having reviewed WTU’s submittal, the Commission concluded that no circumstances existed to warrant a departure from the stated policy. We continue to hold to this conclusion. Supp. Brief of Petitioner at 7. . The doctrine that a Commission decision to suspend utility rate proposals may not be reviewed by this court unless the issue presented is a bona fide challenge to the agency’s fundamental jurisdiction emanates from a long line of cases both in this court and in the Supreme Court. See, e.g., Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979); Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963); Papago Tribal Utility Authority v. FERC, 628 F.2d 235 (D.C.Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980); Aeronautical Radio, Inc. v. FCC, 642 F.2d 1221 (D.C.Cir. 1980), cert. denied, 451 U.S. 920, 976, 101 S.Ct. 1998, 2059, 68 L.Ed.2d 311, 357 (1981). . According to counsel for Edison at oral argument, Edison has adopted the Commission’s directive on the cost projection point, and has refiled its revised projection data with the Commission. . Id. at 12, 14, 627 F.2d at 471, 473. See Delmarva Power & Light Co. v. FERC, 217 U.S.App.D.C. 81 at 89, 671 F.2d 587 at 595 (1982). SPOTTSWOOD W. ROBINSON, III, Chief Judge, concurring: I join in affirmance of the Commission’s order and, save on the suspension question, in the court’s opinion. I write separately merely because my reasons for sustaining the Commission on that question differ somewhat from those advanced by my colleagues. The five-month moratorium the Commission imposed on Edison’s new rates has long since expired. Consequently, any consideration we might give that aspect of the Commission’s order would have to be premised on a theory that the suspension issue might recur and yet might evade judicial review. That, I think, is not so here. The most that can plausibly be argued is that the order did not heed our call in Connecticut Light & Power for articulation of the" }, { "docid": "282968", "title": "", "text": "Commission as to whether geographic competition may be considered in determining market dominance. See Ex Parte No. 320, Special Procedures for Making Findings of Market Dominance, Interim Report, 353 ICC 735, 904-05 (1976); cf. Ex Parte No. 320, Special Procedures for Making Findings of Market Dominance, Clarification of Prior Decisions, 359 ICC 735, 735 n.2, 736 n.7 (1979). See also Central Power & Light Co. v. United States, 634 F.2d 137, 172-175 (5th Cir. 1980) (remanding for clarification of whether the language or history of § 10709 permits consideration of geographic competition). Should the Commission finally determine that geographic competition is not relevant to market dominance, our affirmance of the Commission’s finding, of course, would be unchanged. The railroads have offered no convincing argument against market dominance other than that based on geographic competition. II. Cost Determinations. Courts traditionally have applied a deferential standard in reviewing rate determinations by an agency, Atchison, Topeka & Santa Fe Railway v. Wichita Board of Trade, 412 U.S. 800, 806, 93 S.Ct. 2367, 2374, 27 L.Ed.2d 350 (1973), but the courts have an obligation to determine whether the Commission’s decision comports with applicable law, whether there is evidence in the record to support the Commission’s findings, and whether the agency’s rationale is both discernible and defensible. San Antonio, Texas v. United States, 631 F.2d 831, 836 (D.C.Cir.1980); Burlington Northern, Inc. v. United States, 549 F.2d 83, 88-89 (8th Cir. 1977). Our analysis of the cost issues tracks closely the well-reasoned analysis of similar issues by the District of Columbia Circuit in San Antonio, Texas v. United States, 631 F.2d at 837-53, and the Fifth Circuit in Celanese Chemical Co. v. United States, 632 F.2d 568, 572-78 (5th Cir. 1980). Our analysis is also influenced by the Commission’s reconsideration of some of these issues in Unit Train Rates on Coal — Burlington Northern, Inc., I.&S. No. 9199 (served October 1, 1980). We believe it is necessary to remand certain of these cost issues to the Commission so that uniform policies can be developed and applied. A. Fixed Plant Investment Additive. IPS argues that the Commission’s" }, { "docid": "342971", "title": "", "text": "not to assure just and reasonable rates. This duty is all the more acute, Arctic contends, when so much water has flowed over the litigation dam. Although this argument is hardly without force, we are nonetheless unable to discern in either the statute’s language or its structure an absolute command in the form Arctic would have it. The Commission did, after all, consistently treat this proceeding as a hearing and investigation under sections 15(7) and 15(1) of the Act. Those provisions confer broad discretion upon the Commission to structure its proceedings as it sees fit. For example, the Commission enjoys unreviewable discretion to determine whether to ini tiate section 15 investigations at all, see Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979), and whether to suspend challenged rates, see Aberdeen & Rockfish R.R. Co. v. SCRAP, 422 U.S. 289, 311, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975); Arrow Transp. Co. v. Southern Ry. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963). Moreover, decisions under the ICA not to pursue an investigation once begun lie squarely within the agency’s discretion, even if the initial investigation reveals that some rates, though not all, are illegal. See generally United States v. Louisiana, 290 U.S. 70, 54 S.Ct. 28, 78 L.Ed. 181 (1933) (refusing to invalidate agency decision not to prescribe rates, even though some individual rates were unjust and unreasonable); see also United States v. SCRAP, 412 U.S. 669, 692 n. 16, 93 S.Ct. 2405, 2418 n. 16, 37 L.Ed.2d 254 (1973) (even after preliminary investigation of rate schedules and finding that they contain individually unreasonable rates, refusal to suspend rates as generally unlawful not a reviewable decision on the merits). What is more, the Supreme Court has suggested, albeit in dicta, that a party dissatisfied with a decision to terminate an ongoing investigation is without recourse to the courts. See National R.R. Passenger Corp. v. National Assoc. of R.R. Passengers, 414 U.S. 453, 462 n. 9, 94 S.Ct. 690, 695 n. 9, 38 L.Ed.2d 646 (1974). This congressionally granted," }, { "docid": "8137369", "title": "", "text": "a designated percentage. See Pub.L. No. 96-448, § 202, 94 Stat. 1895, 1900 (codified at 49 U.S.C. § 10709(d) (Supp. V 1981)). Revenues equal to or greater than that percentage do not result in a presumption of market dominance but are to be examined individually. Id. Also in the Staggers Act, Congress created zones of rail carrier rate flexibility, in which even market dominant carriers may increase rates without ICC approval if the carriers’ revenues are found to be inadequate. Pub.L. No. 96-448, § 203(a), 94 Stat. 1895, 1901-04 (codified at 49 U.S.C. § 10707a (Supp. V 1981)). A rate subject to ICC jurisdiction may be challenged in either of two ways. Before the new rate goes into effect, the Commission may begin a proceeding, on its own initiative or on complaint of an interested party, to investigate the rate. 49 U.S.C. § 10707(a) (Supp. V 1981). After a rate goes into effect, the ICC may begin an investigation, on its own initiative or on complaint, into the reasonableness of the existing rate. 49 U.S.C. § 11701 (Supp. V 1981). An ICC decision to approve or disapprove rates, following an investigation, is a judicially reviewable final decision. See Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 452, 99 S.Ct. 2388, 2393, 60 L.Ed.2d 1017 (1979). In contrast, the decision whether to investigate a proposed rate is generally, albeit not always, considered to be an unreviewable exercise of Commission discretion. Southern Railway Co., 442 U.S. at 454-55, 99 S.Ct. at 2394-95. The 4-R and Staggers Acts established that ICC jurisdiction should typically be preserved in situations of railroad market dominance, where effective competition is unavailable to limit the maximum level of rail rates charged captive shippers. The Long-Cannon Amendment was designed to give added protection to captive shippers. It was the result of Congress’ concern about the extent to which rail carriers might use their monopoly traffic to subsidize other traffic that faced effective competition. While there was no need for strict equality in contributions made by different traffic segments, “the amendment sought to assure that rail rate" }, { "docid": "8146608", "title": "", "text": "at 1348. By its terms the regulation quoted above employs a flexible standard of “substantial compliance,” which can best be judged by the Commission in the light of its own needs. The Commission possesses “broad powers to structure the proceedings before it.” Louisiana Power & Light Co. v. FPC, 526 F.2d 898, 910 (5th Cir. 1976). The agency’s choice of procedure — whether to dispose of a case summarily or to schedule a hearing — is not a proper concern of the courts in the absence of substantial prejudice to a party. Accordingly, this court has held that the agency may relax, modify, or waive its filing requirements. Municipal Electric Utility Ass’n v. FPC, 485 F.2d 967, 975 n.28 (D.C.Cir. 1973). As we said in City of Groton v. FERC, 584 F.2d 1067, 1070 (D.C.Cir. 1978), “[T]he Commission ha[s] broad discretion in deciding not to reject the tariff, either at the time of filing or at a later time.” The Supreme Court has emphasized that the courts have no jurisdiction to review agency orders where such review would necessarily infringe on the statutory role of the agency. In Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963), the Supreme Court held that under the Interstate Commerce Act, now codified at 49 U.S.C.A. § 10101 et seq. (1979), the courts have no power to suspend railroad rates pending a hearing by the Interstate Commerce Commission (ICC). The Court said that the power to suspend rates is vested solely and exclusively in the ICC. Id. at 667, 83 S.Ct. at 988. The Court reasoned that any judicial authority to suspend rates “would create the hazard of forbidden judicial intrusion into the administrative domain,” id. at 670, 83 S.Ct. at 990, because it necessarily would involve inquiry into the reasonableness of rates. Id. More recently, in Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979), the Supreme Court unanimously held that an ICC decision not to suspend a proposed railroad rate increase, and not to conduct" }, { "docid": "23014827", "title": "", "text": "F.Supp. 544 (S.D.N.Y.1948) appeal dismissed sub nom. A/S J. Ludwig Mowinckels Rederi v. Isbrandtsen Co., 336 U.S. 941, 69 S.Ct. 813, 93 L.Ed. 1099 (1949). The Interstate Commerce Commission, on the other hand, is vested with power to suspend, at its discretion, for a period of seven months, rates filed with it pending hearing and decision on their lawfulness. 49 U.S.C. § 15(7). The existence of this power in the ICC, it has been held, evinces the deliberate decision of Congress to extinguish judicial power to grant any injunction which interferes with the Commission’s discretionary decision to suspend rates filed with it at anytime before the Commission finally determines the lawfulness of the rates. United States v. Scrap, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963). The pro-minibridge forces, supported by the ICC as amicus curiae, while conceding the district court’s jurisdiction to consider issuing a preliminary injunction against the implementation or continuation of a rate filed with the FMC in a “normal” case, urge that jurisdiction is absent here because these joint rates were filed with the ICC. We refuse to embrace so mechanical an approach. The district court was asked to issue a preliminary injunction against activity of defendant Seatrain which, as a common carrier by water, is subject to the jurisdiction of the FMC. The ICC, according to its own stated policy, neither has nor makes claim to have jurisdiction over the ocean portion of the rates charged by water carriers, International Joint Rates and Through Routes, 337 I.C.C. 625 (1970) and 341 I.C.C. 246 (1972); nor is it concerned with the activity or conduct of those carriers. Further, the ICC was not constituted to regulate ocean shipping practices (or rates) and has neither power nor responsibility to enforce the provisions of the Shipping Act of 1916 (or any other act relating to shipping). The injunction sought was aimed solely at conduct by Seatrain which allegedly violates certain sections of the Shipping Act of 1916 and the policy" }, { "docid": "7797275", "title": "", "text": "justify its tariff rates in individual tariff proceedings. Petitioners then brought this appeal, asserting that the FCC had unlawfully abdicated its statutory obligation under § 201(b) to ensure just and reasonable rates. Issue Whether this court has jurisdiction to review the FCC’s refusal to reject, or suspend and investigate, tariff filings. OPINION A statute, 28 U.S.C. § 2342, limits the jurisdiction of the courts of appeals to review of final decisions of the FCC. In denying petitions to reject, or suspend and investigate, AT&T’s tariff filings, the FCC did not rule here on the lawfulness of those tariffs, that is, on whether the tariffs comply with § 201(b). The FCC exercised its discretionary authority under § 204 of the Communications Act to allow tariffs to go into effect without suspension and investigation. That exercise constitutes a preliminary decision within the Commission’s exclusive discretion. It does not result in a final order reviewable in this court. In Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963) (Arrow), the Court held Interstate Commerce Commission exercises of its suspension powers nonreviewable. The Court pointed out that judicial review at that stage would undermine the agency’s primary jurisdiction by bringing the courts into adjudication of the lawfulness of rates in advance of administrative consideration. In Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979) (Southern Railway), the Court held that an agency’s decision not to investigate was similarly immune from judicial review. Construing § 15(8)(a) of the Interstate Commerce Act, a provision comparable to § 204, the Court said that provision cannot “be read to toler ate judicial review of the Commission’s decision not to investigate the lawfulness of a proposed rate schedule.” Id. at 454, 99 S.Ct. at 2394. The Court explained that though the statute which is “written in the language of permission and discretion”, id. at 455, 99 S.Ct. at 2394, leaves to the ICC’s unreviewable discretion the authority to investigate, the ICC’s exercise of its rate-investigation authority is not “entirely unre-viewable. ... For" }, { "docid": "23014826", "title": "", "text": "v. Federal Maritime Board, 112 U.S.App.D.C. 290, 302 F.2d 875, 878-80 (1962), 46 U.S.C. § 821. However, the federal courts have long held that they may, in the exercise of their general equitable powers, entertain actions filed either by the Commission or by private parties for preliminary injunctions to maintain the status quo and prevent irreparable injury pending the outcome of the oft-times protracted administrative process of the FMC. Delaware River Port Authority v. Transamerican Trailer Transport, Inc., 501 F.2d 917 (3d Cir. 1974) (cited hereafter as TTT); West India Fruit & Steamship Co. v. Seatrain Lines, 170 F.2d 775 (2d Cir. 1948), dism’d, 336 U.S. 908, 69 S.Ct. 514, 93 L.Ed. 1072 (1949); F. M. C. v. Australia/U. S. Atlantic & Gulf Conf., 337 F.Supp. 1032 (S.D.N.Y.1972); Delaware River Port Authority v. United States Lines, Inc., 331 F.Supp. 441 (E.D.Pa.1971); Federal Maritime Commission v. Atlantic & Gulf/Panama Canal Zone, 241 F.Supp. 766 (S.D.N.Y.1965); Penn. Motor Truck Ass’n v. Port of Philadelphia Marine Terminal Ass’n, 183 F.Supp. 910 (E.D.Pa.1960); Isbrandtsen Co. v. United States, 81 F.Supp. 544 (S.D.N.Y.1948) appeal dismissed sub nom. A/S J. Ludwig Mowinckels Rederi v. Isbrandtsen Co., 336 U.S. 941, 69 S.Ct. 813, 93 L.Ed. 1099 (1949). The Interstate Commerce Commission, on the other hand, is vested with power to suspend, at its discretion, for a period of seven months, rates filed with it pending hearing and decision on their lawfulness. 49 U.S.C. § 15(7). The existence of this power in the ICC, it has been held, evinces the deliberate decision of Congress to extinguish judicial power to grant any injunction which interferes with the Commission’s discretionary decision to suspend rates filed with it at anytime before the Commission finally determines the lawfulness of the rates. United States v. Scrap, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963). The pro-minibridge forces, supported by the ICC as amicus curiae, while conceding the district court’s jurisdiction to consider issuing a preliminary injunction against the implementation or continuation of a rate" }, { "docid": "5948453", "title": "", "text": "94th Cong., 1st Sess. (1975), reprinted in H.R.Rep. 94-725, 94th Cong., 1st Sess. (1975). S. 2718, 94th Cong., 1st Sess. (1975), reprinted in S.Rep. 94-499, 94th Cong., 1st Sess. (1975), U.S.Code Cong. & Admin.News 1976, p. 14. . H.R. 10979, § 303, reprinted in H.R.Rep. 94-725, 94th Cong., 1st Sess., 14 (1975). S. 2718, § 107, reprinted in S.Rep. 94-499, 94th Cong., 1st Sess. (1975). . H.R.Rep. 94-725, 94th Cong., 1st Sess., 60-62 (1975). S.Rep. 94-499, 94th Cong., 1st Sess., 15 (1975). . We are concerned, though, that the Commission, as its own motion to remand indicates, failed to address two major allegations argued strenuously by CP&L, namely, that the railroads’ rates were discriminatory and that the railroads had failed to provide evidence in their possession necessary to establish costs. (We discuss these allegations more fully below in Part IX, Section 10741 Attack on Rate as Discriminatory and Railroads’ Duty to Produce Evidence.) We are also concerned about the Commission’s apparent departure from prior decisions on several issues without adequate explanation. While the 180-day limit on consideration of an incentive rate case may be onerous, it does not excuse the failure to address all the issues raised, nor does it excuse the failure to adequately explain holdings. . Cf. Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979) and Georgia Power Co. v. United States, 617 F.2d 107 (5th Cir. 1980), both holding appellate courts have no jurisdiction to review a Commission’s decision not to investigate a rate under § 10707. In this case, there has been an investigation of market dominance and jurisdiction is clearly established under § 10709(b) establishing judicial review over determinations of market dominance. . We define “court-generated remand” and contrast it with “voluntary remand”, supra, p. 145. . The railroads suggest that judicial review without Commission correction of legal error would at least have precedential value in future cases. . Our review of Commission decisions reveals this to be the first case involving unit coal train traffic in which, after an investigation, the Commission did not" }, { "docid": "937432", "title": "", "text": "to review the acceptance by the FERC of a rate filing under the Federal Power Act where patent defects in form or content were alleged. At 247. The court asserted that acceptance orders are generally unreviewable when they are (1) non-final, (2) result in no irreparable harm to the party seeking review, and (3) constitute a province reserved to agency discretion. At 239. The decision of the FCC to accept the AT&T tariff filing satisfies the Papago criteria of unreviewability. The acceptance is non-final because it is the initiation of an administrative proceeding. The Commission merely accepted the tariff and did not rule on the lawfulness of the rates to be paid by former TELPAK customers. The act of acceptance creates no irreparable harm because investigatory hearings are available for examination of the filing on the merits. 47 U.S.C. §§ 206-209, Papago, at 240-41. Finally, the decision to accept the filing is reserved to Commission discretion because it is a “necessary adjunct to the unreviewable decision to suspend and investigate.” Papago, at 243. See Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 454, 99 S.Ct. 2388, 2394, 60 L.Ed.2d 1017 (1979); Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658, 667-669, 83 S.Ct. 984, 988-990, 10 L.Ed.2d 52 (1963). As the court in Papago observed, “It would make little sense to declare orders concerning suspension and investigation unreviewable if the courts may review the related order to accept a rate filing.” (At 243) The Papago decision relied upon a series of Supreme Court cases, including the Southern Railway decision, in which it was held that appellate courts have no power to interfere with agency discretion by undertaking to review suspension, investigation, and rejection decisions. 442 U.S. at 452, 99 S.Ct at 2393, 60 L.Ed.2d 1017 (1979). In the Southern Railway case the Interstate Commerce Commission accepted a railroad tariff increase without suspension, investigation, or hearing, despite assertions by protestant shippers that the rates were patently illegal. 442 U.S. at 449, 99 S.Ct. at 2391. The Court held the ICC actions to be non-final and unreviewable because" }, { "docid": "5948455", "title": "", "text": "find one of the presumptions to apply and market dominance to exist. In only one case brought to our attention has the Commission said there was no market dominance in a coal movement. In Increased Rate on Coal-Arco, Tennessee to Harllee, Georgia, SOU and CGA, Docket No. I & S 9217, Decision Served August 23, 1979 (by Division 1) (unprinted), reconsideration denied, Decision served October 19, 1979 (by Commission) (unprinted), petition denied sub nom. Georgia Power Co. v. United States, 617 F.2d 107 (5th Cir. 1980), the Commission refused to investigate a coal traffic rate under § 10707 because of the protestants’ failure to demonstrate a likelihood of success and because intramodal competition indicated no market dominance. This was a one page decision cursorily finding no market dominance without an investigation or elaboration and as such lends no support to the Commission’s conclusion in this case. . We are not convinced that the record has evidence of only docketing the rate for CP&L’s traffic. In evidence concerning the railroads’ negotiation with CP&L, one railroad witness testified that the railroads received a wire from the Missouri Pacific of its intention not to make a quote on CP&L’s movement. (J.A. II, p. 805). The evidence does not indicate that the Missouri Pacific learned of CP&L’s movement through the rate bureau or that the Missouri Pacific declined so openly to make a quote on CP&L’s movement through the procedure of the rate bureau. However, the fact that the Missouri Pacific wired the railroads with whom and through whom negotiations were being conducted may indicate that rate bureau procedures were being relied upon. . Elsewhere, the Commission distinguishes between the publication of a rate by a rate bureau and docketing, discussing, considering, and approving the rate. In Ex parte No. 320, Final Report, the Commission noted: However, we cannot agree with the contention that the rate bureau presumption should be triggered by mere publication of a rate by a rate bureau without evidence of docketing, discussion, consideration, or approval of the rate at issue. 355 I.C.C. at 14, n.5. Here, the evidence submitted by" }, { "docid": "23205423", "title": "", "text": "it may also be appropriate in some cases in which we find the shippers’ claims to have merit, to suspend the rate change and/or ultimately to find that the filing of the change is unreasonable and unlawful and to prescribe a rate that conforms to the contract. Our conclusions are based on both legal and policy considerations. As a legal matter, in cases in which a carrier files a rate change that is approved by the Commission but that is in violation of the carrier’s contract with a shipper, we believe that courts are without legal authority to provide shippers with a meaningful remedy for the breach of contract. Thus, it is well settled that courts may not award damages to shippers that would have the effect of reducing their transportation charges below the rate on file with the Commission. See, e. g., Montana-Dakota Co. v. Northwestern Public Service Co., 341 U.S. 246, 251, [71 S.Ct. 692, 695, 95 L.Ed. 912] (1951); Georgia v. Pennsylvania R. Co., 324 U.S. 439, 453 [65 S.Ct. 716, 724, 89 L.Ed. 1051] (1945); Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 U.S. 516, 520 [59 S.Ct. 612, 614, 83 L.Ed. 953] (1939); Farley Terminal Co., Inc. v. Atchison, T. & S. F. Ry. Co., 522 F.2d 1095, 1098 (9th Cir. 1975). It is also well established that a court has no power to suspend or enjoin the effectiveness of a rate on file with the Commission. See, e. g., [Southern Ry. Co. v.] Seaboard Allied Milling Corp. v. Southern Ry. Co. [442 U.S. 444], 99 S.Ct. 2388 [60 L.Ed.2d 1017] (1979); United States v. SCRAP, 412 U.S. 669 [93 S.Ct. 2405, 37 L.Ed.2d 254] (1973); Arrow Transportation Co. v. Southern Ry., 372 U.S. 658 [83 S.Ct. 984, 10 L.Ed.2d 52] (1963). The principle of those cases would also preclude courts from ordering a carrier to file a superceding tariff with the Commission in accordance with its contract because such an order would have the same effect as suspending a rate on file with the Commission. In light of these authorities, the Commission has concluded that if" }, { "docid": "8137370", "title": "", "text": "§ 11701 (Supp. V 1981). An ICC decision to approve or disapprove rates, following an investigation, is a judicially reviewable final decision. See Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 452, 99 S.Ct. 2388, 2393, 60 L.Ed.2d 1017 (1979). In contrast, the decision whether to investigate a proposed rate is generally, albeit not always, considered to be an unreviewable exercise of Commission discretion. Southern Railway Co., 442 U.S. at 454-55, 99 S.Ct. at 2394-95. The 4-R and Staggers Acts established that ICC jurisdiction should typically be preserved in situations of railroad market dominance, where effective competition is unavailable to limit the maximum level of rail rates charged captive shippers. The Long-Cannon Amendment was designed to give added protection to captive shippers. It was the result of Congress’ concern about the extent to which rail carriers might use their monopoly traffic to subsidize other traffic that faced effective competition. While there was no need for strict equality in contributions made by different traffic segments, “the amendment sought to assure that rail rate flexibility would not result in [captive] shippers bearing a disproportionate share of responsibility for the needed improvement in the railroads’ financial position.” 365 I.C.C. at 988. See also 125 Cong.Rec. 36,422 (1979) (“rates on coal should not .. . subsidize the continuation of antiquated and inefficient railroad practices”) (remarks of Senator Long introducing original version of Long-Cannon Amendment); 126 Cong.Rec. 7264-67 (1980) (remarks of Senators Long, Cannon, Baucus & Bentsen). Toward this end, the Long-Cannon Amendment specified certain factors that the ICC should consider in determining whether to investigate a proposed rate, and in evaluating the reasonableness of the rate. To trigger these factors, the rate must satisfy a threshold test of market dominance, set out at section 10707a(eX2)(A). The Long-Cannon market dominance test is more rigorous than the ICC’s jurisdictional market dominance test set out at section 10709(d). If the rate meets the Long-Cannon criteria, “the Commission may, on its own initiative, or on complaint of an interested party, begin an investigation proceeding to determine whether the proposed rate increase violates” the subtitle. 49" }, { "docid": "13339812", "title": "", "text": ". As recognized by this court in Pennsylvania Gas & Water Co. v. FPC, 150 U.S.App.D.C. 151, 4G3 F.2d 1242 (1972) (Natural Gas Act § 4(e), 15 U.S.C. § 717c (e) (1970)). We may distinguish the instant case from United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), and Arrow Transp. Co. v. Southern Ry. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1903), which interpreted the suspension provision of the Interstate Commerce Act, § 15(7), 49 U.S.C. § 15(7) (1970). In Arrow, the Supreme Court held that the District Court had infringed upon the exclusive suspension power of the Interstate Commerce Commission when it enjoined implementation of a filed rate schedule after the statutory seven-month suspension period had expired. The Court endorsed the following statement by the Fifth Circuit, which had reversed the District Court’s decree: Congress, in its wisdom, has fixed seven months as the maximum period of suspension. It seems clear to us that if the courts extend that period, they are in effect amending the statute and that is a matter beyond their power. 372 U.S. at 662, 83 S.Ct. at 986, quoting 308 F.2d 181, 186 (1962). In SCRAP the District Court enjoined collection of railroad freight surcharges despite the fact that the ICC had denied requests to suspend the surcharges for the statutory seven-month period under section 15(7). The Supreme Court reversed, noting that the District Court’s “injunction constitutes a direct interference with the Commission’s discretionary decision whether or not to suspend the rates.” 412 U.S. at 692, 93 S.Ct. at 2418. In the case at bar, our denial of retroactive increases to I & M for the five-month period from 14 July 1972 through 13 December 1972 does not extend the statutory five-month suspension period as was the case in Arrow. Moreover, our order does not interfere with the Commission’s “discretionary decision whether or not to suspend”; rather, it gives effect to the Commission’s decision that suspension was approj>riate. . Cf. United States v. Morgan, 307 U.S. 183, 198, 59 S.Ct. 795, 83 L.Ed. 1211 (1939);" } ]

[ { "docid": "118661", "title": "", "text": "force in forum state insufficient). See also Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779, 104 S.Ct. 1473, 1480, 79 L.Ed.2d 790 (1984) (circulation of magazines in New Hampshire may not support jurisdiction over cause of action unrelated to the magazines). At oral argument, Brand claimed that Menlove had “substantial” contacts with California. We disagree. Menlove’s only contacts were occasional car sales in Utah to California residents, car sales to Patterson with knowledge that he occasionally resold them in California, and the sale of the Toyota at issue to Patterson, with knowledge that it would be resold in California. In addition, many of the cars Men-love sold entered the country through California ports. These contacts are neither “substantial” nor “systematic and continuous.” III. Specific Jurisdiction We have established a three-factor test to determine when a state may constitutionally exercise specific jurisdiction over a defendant: 1. The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws. 2. The claim must be one which arises out of or results from the defendant’s forum-related activities. 3. Exercise of jurisdiction must be reasonable. Scott, 792 F.2d at 927; Haisten, 784 F.2d at 1397. In our case, the injury to Brand arose out of the activities that Brand argues were purposefully directed at California. Thus we focus on the first and third prongs of the test. When the test was originally formulated, a plaintiff had to demonstrate each of the three elements to establish jurisdiction. See Data Disc, Inc. v. Systems Technology Associates, 557 F.2d 1280,1287 (9th Cir.1977). In response to recent Supreme Court opinions, we have adopted a more flexible approach. See Haisten, 784 F.2d at 1397. Jurisdiction may be established with a lesser showing of minimum contacts “if considerations of reasonableness dictate,” and a presumption of reasonableness arises “upon a showing that the defendant purposefully directed [its] activities at forum residents which the defendant bears the burden of overcoming by" } ]

[ { "docid": "9774891", "title": "", "text": "King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The “fair play and substantial justice” prong gives the defendant an opportunity to “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Id. at 477, 105 S.Ct. 2174. This Circuit has summarized the Supreme Court’s jurisprudence by setting forth a three-factor test to determine whether asserting jurisdiction over an out-of-state defendant comports with due process. Jurisdiction may be exercised when the following requirements are met: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privileges of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir.2000). The first two factors correspond with the “minimum contacts” prong of the International Shoe analysis, and the third factor corresponds with the “fair play and substantial justice” prong of the analysis. 1. The “purposeful availment” requirement “ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or third person.” Burger King, 471 U.S. at 475, 105 S.Ct. 2174 (internal quotations and citations omitted). Indeed, to satisfy the first factor, there must be “some act” by which defendants “purposefully avail [ ]” themselves of the “privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. The contacts made by a defendant therefore must, by his own actions, create a “substantial connection” to the forum state. Id. [WJhere the defendant “deliberately” has engaged in significant activities within a State ... or has created “continuing obligations” between himself and residents of the forum," }, { "docid": "8020197", "title": "", "text": "has “certain minimum contacts” with the relevant forum “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). Unless a defendant’s contacts with a forum are so substantial, continuous, and systematic that the defendant can be deemed to be “present” in that forum for all purposes, a forum may exercise only “specific” jurisdiction — that is, jurisdiction based on the relationship between the defendant’s forum contacts and plaintiffs claims. The parties agree that general jurisdiction does not exist here; only specific jurisdiction is at issue. We analyze specific jurisdiction according to a three-prong test: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Schwarzenegger, 374 F.3d at 802 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)). “The plaintiff bears the burden of satisfying the first two prongs of the test. If the plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in the forum state.” Id. (internal citation omitted). On the other hand, if the plaintiff succeeds in satisfying both of the first two prongs, “the burden then shifts to the defendant to ‘present a compelling case’ that the exercise of jurisdiction would not be reasonable.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). We next elaborate on the three prongs of our personal jurisdiction analysis: (1) purposeful availment and direction; (2) forum-related conduct; and (3) reasonableness. 1. Purposeful Availment" }, { "docid": "20153919", "title": "", "text": "court in that state in any action, even if the action is unrelated to those contacts.” Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082, 1087 (9th Cir.2000) (citing Heliopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). “This is known as general jurisdiction. The standard for establishing general jurisdiction is fairly high and requires that the defendant’s contacts be of the sort that approximate physical presence.” Id. (citations omitted). “Factors to be taken into consideration are whether the defendant makes sales, solicits or engages in business in the state, serves the state’s markets, designates an agent for service of process, holds a license, or is incorporated there.” Id. In order for a court to exert specific jurisdiction in accordance with due process, a nonresident defendant must have “ ‘minimum contacts’ with the forum state such that the assertion of jurisdiction ‘does not offend traditional notions of fair play and substantial justice.’” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir.2006) (quoting Int’l Shoe, 326 U.S. at 315, 66 S.Ct. 154). The Ninth Circuit employs a three-part test to determine whether the defendant has such minimum contacts with a forum state. First, the “nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum,” thereby invoking the benefits and protections of the forum state. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir.1997) (quoting Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir.1995)). Second, the claim must “arise[ ] out of or result[ ] from the defendant’s forum-related activities,” and third, the exercise of personal jurisdiction over the defendant must be reasonable. Pebble Beach Co., 453 F.3d at 1155. The plaintiff bears the burden of proving the first two conditions. Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir.2008). If the plaintiff carries this burden, “the defendant must come forward with a ‘compelling case’ that the exercise of jurisdiction would not be reasonable.” Id." }, { "docid": "9774873", "title": "", "text": "jurisdiction de novo. Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1319-20 (9th Cir.1998). As Yahoo! acknowledges, no basis for general jurisdiction exists because LICRA and UEJF do not have the kind of continuous and systematic contacts with the forum state sufficient to support a finding of general personal jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). We hold that LICRA and UEJF are also not subject to personal jurisdiction under the specific jurisdiction doctrine, which permits jurisdiction over a defendant in a lawsuit “arising out of or related to the defendant’s contacts with the forum.” Id. at n. 8. In International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Supreme Court held that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Exercise of jurisdiction is consistent with these requirements of “minimum contacts” and “fair play and substantial justice” where (1) the non-resident defendant has purposefully directed his activities or consummated some transaction with the forum or a resident thereof, or performed some act by which he purposefully availed himself of the privileges of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction is reasonable. Bancroft & Masters, Inc. v. Au gusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir.2000). The first requirement, purposeful availment of the benefits of the forum, “ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or a third person.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)" }, { "docid": "11211680", "title": "", "text": "1280, 1285 (9th Cir.1977). The court will construe the facts in the light most favorable to CalFed and resolve all doubts in its favor. Pacific Atlantic, 758 F.2d at 1827. For a California district court sitting in diversity, jurisdiction must comport with the constitutional requirement of due process and with California’s long-arm statute, Cal. Code Civ.P. § 410.10. Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1484 (9th Cir.1993) (“California’s long-arm statute allows courts to exercise personal jurisdiction over defendants to the extent permitted by the Due Process Clause of the United States Constitution”); Vibration Isolation Prods., Inc. v. American National Rubber Co., 23 Cal.App.3d 480, 100 Cal.Rptr. 269, 271 (Ct.App.1972). We need only determine whether personal jurisdiction would meet the requirements of due process because the state and federal limits to jurisdiction are coextensive. Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 269 (9th Cir.1995); Core-Vent Corp., 11 F.3d at 1484. The due process clause prohibits the exercise of jurisdiction over nonresident defendants unless those defendants have “minimum contacts” with the forum state so that the exercise of jurisdiction “does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citations omitted). Where the nonresident defendant has not had “continuous and systematic” or “substantial” contacts with the state sufficient to subject it to general jurisdiction, the court may exercise specific or limited jurisdiction if the specific cause of action arises out of a defendant’s more limited contacts with the state. Richard Roth v. Gabriel Garcia Marquez, 942 F.2d 617, 620 (9th Cir.1991) (citing Data Disc, 557 F.2d at 1287). Here, CalFed alleges that California has limited jurisdiction over KPMG. Therefore, CalFed must satisfy the following three-part test to show that KPMG has sufficient “minimum contacts” with the forum: (1) the nonresident defendant purposefully directed his activities or consummated some transaction with the forum or residents thereof, or performed some act by which he purposefully availed himself of the privilege of conducting activities in the forum, thereby invoking the protection" }, { "docid": "17912197", "title": "", "text": "Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (citing Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878)). The cornerstone of the due process inquiry is an analysis of the defendant’s contacts with the selected forum. The famous International Shoe case requires “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, 90 L.Ed. 95 (1945). A court may exercise specific jurisdiction where the suit “arises out of’ or is related to the defendant’s contacts with the forum and the defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); see also Helicopteros, 466 U.S. at 414 n. 8, 104 S.Ct. 1868. In contrast, in a controversy unrelated to a defendant’s contacts with the forum, a court may exercise general jurisdiction only where “continuous corporate operations within a state [are] thought so substantial and of such a nature as to justify suit against [the defendant] on causes of action arising from dealings entirely distinct from those activities.” International Shoe, 326 U.S. at 318, 66 S.Ct. 154; accord Helicopteros, 466 U.S. at 414 n. 9, 104 S.Ct. 1868. The standard for general jurisdiction is high; contacts with a state must “approximate physical presence.” Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir.2000). Put another way, a defendant must not only step through the door, it must also “[sit] down and [make] itself at home.” Glencore Grain Rotterdam B.V. v. Shivnath Rai Hamarain Co., 284 F.3d 1114, 1125 (9th Cir.2002). The parties agree that Tuazon’s claim arises from Reynolds’ conduct outside of Washington. Consequently, we must decide whether Reynolds’ contacts with Washington suffice to support the exercise of general jurisdiction. To this end, we follow a two-step process, asking first, whether" }, { "docid": "8843674", "title": "", "text": "and federal constitutions, as those limits have been defined by the United States Supreme Court.” Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d at 1286 (citations omitted). Thus, the usual two-step analysis collapses into a single search for the outer limits of what due process permits. Cf. Amba Marketing Systems, Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 788-89 (9th Cir. 1977). A series of decisions, beginning with International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), defines the limitations on a state’s power to assume in personam jurisdiction over an out-of-state defendant. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). A defendant must have such “minimal contacts” with the forum that maintenance of the suit will not offend traditional notions of fair play and substantial justice. Data Disc, Inc., 557 F.2d at 1287, citing International Shoe Co. v. Washington, 326 U.S. at 316, 66 S.Ct. 154. When a defendant has “substantial” forum-related activities, he may be subject to the forum state’s jurisdiction even as to a suit arising from activities unrelated to the forum. But when his activities are not sufficiently pervasive to support general jurisdiction, the inquiry must turn to an evaluation of his forum-related activities as they relate to the specific cause of action. Because defendant did not have enough contact with California to support general jurisdiction over him, we must evaluate his contact with the state in his role as guarantor of Oregon, Inc.’s obligations. This circuit has adopted the following analytical approach to that evaluation: (1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws. (2) The claim must be one which arises out of or results from the defendant’s forum-related activities. (3) Exercise of jurisdiction must be reasonable. Data Disc, Inc., 557" }, { "docid": "22993438", "title": "", "text": "federal statute governing personal jurisdiction, the law of the state in which the district court sits applies. See Hylwa, M.D., Inc. v. Palka, 823 F.2d 310, 312 (9th Cir.1987). This case was brought in the Central District of California; California’s long-arm statute allows courts to exercise personal jurisdiction over defendants to the extent permitted by the Due Process Clause of the United States Constitution. Data Disc, Inc. v. Systems Tech. Assocs., Inc., 557 F.2d 1280, 1286 (9th Cir.1977). Thus, we “need only determine whether personal jurisdiction in this case would meet the requirements of due process.” Brainerd v. Governors of the Univ. of Alberta, 873 F.2d 1257, 1258 (9th Cir.1989). “[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it 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) (citations omitted). Where the defendant has not had continuous and systematic contacts with the state sufficient to subject him or her to general jurisdiction, the following three-part test is applied to determine whether the defendant has “minimum contacts” with the forum: (1) The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987). Here, Core-Vent claims that the Swedish doctors purposefully directed their activities into California by publishing or causing to be published libelous articles about Core-Vent’s products in international medical journals. The libel claims clearly “arose out” of the" }, { "docid": "22899215", "title": "", "text": "141 F.3d 1316, 1320 (9th Cir.1998). California’s long-arm statute is co-extensive with federal standards, so a federal court may exercise personal jurisdiction if doing so comports with federal constitutional due process. Id. at 1320. “For a court to exercise personal jurisdiction over a nonresident defendant, that defendant must have at least ‘minimum contacts’ with the relevant forum such that the exercise of jurisdiction ‘does not offend traditional no tions of fair play and substantial justice.’ ” Schwarzenegger, 374 F.3d at 801 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). There are two forms of personal jurisdiction that a forum state may exercise over a nonresident defendant — general jurisdiction and specific jurisdiction. We deal here only with the latter. A. The district court correctly dismissed Boschetto’s complaint for lack of personal jurisdiction. We apply a three-part test to determine whether the exercise of specific jurisdiction over a nonresident defendant is appropriate: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Id. at 802 (citing Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)). The plaintiff bears the burden on'the first two prongs. Id. If the plaintiff establishes both prongs one and two, the defendant must come forward with a “compelling case” that the exercise of jurisdiction would not be reasonable. Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). But if the plaintiff fails at the first step, the jurisdictional inquiry ends and the case must be dismissed. See Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006) (“[Plaintiffs] arguments fail under the first prong." }, { "docid": "11211681", "title": "", "text": "forum state so that the exercise of jurisdiction “does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citations omitted). Where the nonresident defendant has not had “continuous and systematic” or “substantial” contacts with the state sufficient to subject it to general jurisdiction, the court may exercise specific or limited jurisdiction if the specific cause of action arises out of a defendant’s more limited contacts with the state. Richard Roth v. Gabriel Garcia Marquez, 942 F.2d 617, 620 (9th Cir.1991) (citing Data Disc, 557 F.2d at 1287). Here, CalFed alleges that California has limited jurisdiction over KPMG. Therefore, CalFed must satisfy the following three-part test to show that KPMG has sufficient “minimum contacts” with the forum: (1) the nonresident defendant purposefully directed his activities or consummated some transaction with the forum or residents thereof, or performed some act by which he purposefully availed himself of the privilege of conducting activities in the forum, thereby invoking the protection of its law; (2) the claim arises out of or is related to the defendant’s forum-related activities; and (3) the exercise of jurisdiction comports with fair play and substantial justice, i.e., it is reasonable. Id. at 620-21; Lake v. Lake, 817 F.2d 1416, 1420-21 (9th Cir.1987). 1. Purposeful Availment The first prong of the test, purposeful availment, requires that the defendant engage in some act purposefully to avail himself of the benefits and protection of the forum state to ensure that a person is not haled into court as the result of random, fortuitous, or attenuated contacts or on account of the unilateral activities of third parties. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (citations and internal quotations omitted). Thus the court’s inquiry is whether the defendant’s contacts with the forum are attributable to his actions or are solely the actions of the plaintiff; the defendant must have performed some type of affirmative conduct which allows or promotes the transaction of business with the forum" }, { "docid": "8020196", "title": "", "text": "Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.2004) (quoting Amba Mktg. Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir.1977)), uncontroverted allegations in the complaint must be taken as true. Id. (citing AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir.1996)). The court resolves all disputed facts in favor of the plaintiff. Pebble Beach Co., 453 F.3d at 1154. B. Legal Framework for Personal Jurisdiction Analysis We first outline the legal framework for our personal jurisdiction analysis. When no federal statute specifically defines the extent of personal jurisdiction, we look to the law of the state where the district court sfe — in this case, Arizona. Arizona’s long-arm rule permits the exercise of personal jurisdiction to the extent allowed by the due process clause of the United States Constitution. CE Distrib., LLC v. New Sensor Corp., 380 F.3d 1107, 1110 (9th Cir.2004) (internal citations and quotation signals omitted). A court may exercise personal jurisdiction over a defendant consistent with due process only if he or she has “certain minimum contacts” with the relevant forum “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). Unless a defendant’s contacts with a forum are so substantial, continuous, and systematic that the defendant can be deemed to be “present” in that forum for all purposes, a forum may exercise only “specific” jurisdiction — that is, jurisdiction based on the relationship between the defendant’s forum contacts and plaintiffs claims. The parties agree that general jurisdiction does not exist here; only specific jurisdiction is at issue. We analyze specific jurisdiction according to a three-prong test: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the" }, { "docid": "9774890", "title": "", "text": "be amenable to jurisdiction under the specific jurisdiction doctrine if the claim is related to the party’s activities in or contacts with the forum state. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). In the seminal case on personal jurisdiction, International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Supreme Court held that “due process requires only that in order to subject a defendant to a judgment in person-am, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. at 316, 66 S.Ct. 154 (emphasis added). The “minimum contacts” prong of the due process inquiry focuses on whether the defendant “has purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The “fair play and substantial justice” prong gives the defendant an opportunity to “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Id. at 477, 105 S.Ct. 2174. This Circuit has summarized the Supreme Court’s jurisprudence by setting forth a three-factor test to determine whether asserting jurisdiction over an out-of-state defendant comports with due process. Jurisdiction may be exercised when the following requirements are met: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privileges of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Bancroft & Masters, Inc. v. Augusta" }, { "docid": "22899233", "title": "", "text": "more,” such as individually targeting residents of a particular state, to be haled into another jurisdiction. The basic principles are well settled. Personal jurisdiction is proper if it is consistent with the forum state’s long-arm statutes and if it comports with due process of law. Fireman’s Fund Ins. Co. v. Nat’l Bank of Coops., 103 F.3d 888, 893 (9th Cir.1996). California’s long-arm statute extends the exercise of personal jurisdiction to the limits of due process. Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir.2003) (citing CaLCode Civ. Pro. § 410.10). For due process to be satisfied, a defendant must have “minimum contacts” with the forum state such that the assertion of jurisdiction “does not offend traditional notions of fair play and substantial justice.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir.2006) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 315, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). This circuit applies a three-part test to determine whether a plaintiff has demonstrated sufficient minimum contacts to establish specific jurisdiction over a defendant. Minimum contacts are found where: (1) the defendant has performed some act or consummated some transaction within the forum or otherwise purposefully availed himself of the privileges of conducting activities in the forum, (2) the claim arises out of or results from the defendant’s forum related activities, and (3) the exercise of jurisdiction is reasonable. Id. at 1155 (citing Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir.2000)). The plaintiff bears the burden of satisfying the first two prongs of the test, and the defendant bears the burden on the third. Id. Boschetto falls short on the first prong. The “purposeful availment” requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of “random,” “fortuitous,” or “attenuated” contacts. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citations omitted). We have refined this to mean that the defendant must either have “purposefully availed” himself of the privilege of conducting" }, { "docid": "13784835", "title": "", "text": "follows: For general jurisdiction to exist over a nonresident defendant ..., the defendant must engage in “continuous and systematic general business contacts” that “approximate physical presence” in the forum state. This is an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world. Id. at 801 (citing International Shoe Co. v. Washington, 326 U.S. 310, 318, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). General jurisdiction does not exist absent a showing of pervasive contacts. See, e.g., Gator.com. Corp. v. L.L. Bean, Inc., 341 F.3d 1072, 1075-77 (9th Cir.2003) (general jurisdiction requires an “approximation of physical presence”); Amoco Egypt Oil Co. v. Leonis Navigation Co., 1 F.3d 848, 851 n. 3 (9th Cir.1993) (noting courts have “regularly declined to find general jurisdiction even where the contacts were quite extensive”). “Factors to be taken into consideration are whether the defendant makes sales, solicits or engages in business in the state, serves the state’s markets, designates an agent for service of process, holds a license, or is incorporated there.” Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082, 1086 (9th Cir.2000). Goldberg offers no evidence demonstrating that Cameron or Hurd, as individuals, make sales, solicit or engage in business, or otherwise serve the markets in the Northern District of California. There is no evidence they engage in “continuous and systematic general business contacts” in this district. Accordingly, the court finds that Goldberg has not made a prima facie showing of general jurisdiction. b. Specific Jurisdiction The Ninth Circuit has articulated the following three-prong test for analyzing a claim of specific jurisdiction: (1) The non-resident defendant must purposefully direct activities or consummate some transaction with the forum or resident thereof; or perform some act which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protection of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the" }, { "docid": "22978498", "title": "", "text": "sending a cease and desist letter to Yahoo! at its headquarters in Santa Clara, California; ■ serving process on Yahoo! in Santa Clara to commence the French suit; obtaining two interim orders from the French court; and serving the two orders on Yahoo! in Santa Clara. Where, as here, there is no applicable federal statute governing personal jurisdiction, the district court applies the law of the state in which the district court sits. See Fed.R.Civ.P. 4(k)(l)(A); Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998). Because California’s long-arm jurisdictional statute is coextensive with federal due process requirements, the jurisdictional analyses under state law and federal due process are the same. Id. at 1320 (citing Cal.Civ.Proc. Code § 410.10). In International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Supreme Court held that a court may exercise personal jurisdiction over a defendant consistent with due process only if he or she has “certain minimum contacts” with the relevant forum “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. at 316, 66 S.Ct. 154 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). Unless a defendant’s contacts with a forum are so substantial, continuous, and systematic that the defendant can be deemed to be “present” in that forum for all purposes, a forum may exercise only “specific” jurisdiction — that is, jurisdiction based on the relationship between the defendant’s forum contacts and the plaintiffs claim. The parties agree that only specific jurisdiction is at issue in this case. In this circuit, we analyze specific jurisdiction according to a three-prong test: (1) The non-resident defendant must purposefully direct his activities or con summate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and" }, { "docid": "19138819", "title": "", "text": "over Defendant, due process requires that it have at least “minimum contacts” with Maryland “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, 90 L.Ed. 95 (1945). Physical presence within the forum state is not required to establish personal jurisdiction over a nonresident defendant. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Jurisdiction is also established if it can be shown that the defendant has purposefully directed its activities towards the residents of the forum state, id. at 472, 105 S.Ct. 2174, or otherwise “purposefully availed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). A court may exercise either general or specific jurisdiction. General jurisdiction, which permits a court to subject a non-resident defendant to a suit in the forum state wholly unrelated to any contact it has with that forum, exists only where the foreign defendant’s in-state activities amount to “continuous and systematic” contact with the state. Id. at 314-15, 66 S.Ct. 154. Specific jurisdiction exists where the suit arises from a defendant’s contacts with the forum state. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). The level of “minimum contacts” necessary to confer specific jurisdiction is significantly lower than that required for general jurisdiction. ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir.1997), cert. denied, 523 U.S. 1048, 118 S.Ct. 1364, 140 L.Ed.2d 513 (1998). Specific jurisdiction exists when the “contacts related to the cause of action ... create a ‘substantial connection’ with the forum state.... ” ESAB Group, 126 F.3d at 625 (quoting McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)). The defendant’s activities must be purposefully directed at the forum state “in more than a random, fortuitous, or attenuated way.”" }, { "docid": "23137660", "title": "", "text": "For a court to exercise personal jurisdiction over a nonresident defendant, that defendant must have at least “minimum contacts” with the relevant forum such that the exercise of jurisdiction “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, 90 L.Ed. 95 (1945) (internal quotation marks and citation omitted). Even if a defendant has not had continuous and systematic contacts with the state sufficient to confer “general jurisdiction,” a court may exercise “specific jurisdiction” when the following requirements are met: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privileges of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Caruth, 59 F.3d at 127 (quoting Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1485 (9th Cir.1993)) (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)) (quotation marks omitted) (emphasis added). We analyze these three requirements in turn. A. Purposeful Direction or Availment Under our precedents, the purposeful direction or availment requirement for specific jurisdiction is analyzed in intentional tort cases under the “effects” test derived from Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). In Colder, the Supreme Court determined that California courts could exercise jurisdiction over an editor and a reporter who caused a defamatory article about a California resident to be published in Florida and circulated in California, on the ground that the tortious conduct was “expressly aimed” at the forum state in which harm occurred. See id. at 788-89, 104 S.Ct. 1482. As we have previously recognized, Colder stands for the proposition that purposeful availment is satisfied even by a defendant “whose only ‘contact’ with the forum state is the ‘purposeful direction’ of" }, { "docid": "12088703", "title": "", "text": "Congress intended be present to confer jurisdiction under the Foreign Sovereign Immunities Act. Our conclusion is reinforced by the fact that the requirement of a “direct effect” incorporates the minimum contacts standards of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). See Thos. P. Gonzalez Corp. v. Consejo Nacional, 614 F.2d 1247, 1255 & n. 5 (9th Cir.1980) (the requirements of minimum jurisdictional contacts and adequate notice are embodied in 28 U.S.C. § 1330(b)). A finding of “direct effects,” then, also must comport with the “traditional notions of fair play and substantial justice” which determine the due process limits of personal jurisdiction. International Shoe, 326 U.S. at 316, 66 S.Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). Where a non-resident defendant has “substantial” or “continuous and systematic” contacts with the forum state, jurisdiction exists even if the cause of action is unrelated to the defendant’s forum activities. Shute v. Carnival Cruise Lines, 863 F.2d 1437, 1440 (9th Cir.1988) (citing Fields v. Sedgwick Associated Risks, Ltd., 796 F.2d 299, 301 (9th Cir.1986)); Data Disc, Inc. v. Systems Technology Assoc., Inc., 557 F.2d 1280 (9th Cir.1977). Where the non-resident’s activities are not sufficiently pervasive to create general jurisdiction, we apply a three-part test to determine whether the exercise of specific jurisdiction comports with due process: (1) the defendant must have done some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must arise out of the defendant’s forum-related activities; and (3) the exercise of jurisdiction must be reasonable. Shute, 863 F.2d 1441. There are insufficient contacts in this case for the exercise of either general or specific jurisdiction over Banco BCH. Ban-co BCH has no branch offices or representational offices within the United States and is not licensed to do business in any state of the" }, { "docid": "23117917", "title": "", "text": "“minimum contacts” with the forum state such that the assertion of jurisdiction “does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 315, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In this circuit, we employ the following three-part test to analyze whether a party’s “minimum contacts” meet the Supreme Court’s directive. This “minimum contacts” test is satisfied when, (1) the defendant has performed some act or consummated some transaction within the forum or otherwise purposefully availed himself of the privileges of conducting activities in the forum, (2) the claim arises out of or results from the defendant’s forum-related activities, and (3) the exercise of jurisdiction is reasonable. Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir.2000). “If any of the three requirements is not satisfied, jurisdiction in the forum would deprive the defendant of due process of law.” Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir.1995). The plaintiff bears the burden of satisfying the first two prongs of the “minimum contacts” test. Schwarzenegger, 374 F.3d at 802 (internal citations omitted). Here, Pebble Beach’s arguments fail under the first prong. Accordingly, we need not address whether the claim arose out of or resulted from Caddy’s forum-related activities or whether an exercise of jurisdiction is reasonable per the factors outlined by the Supreme Court in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Under the first prong of the “minimum contacts” test, Pebble Beach has the burden of establishing that Caddy “has performed some act or consummated some transaction within the forum or otherwise purposefully availed himself of the privileges of conducting activities in the forum.” Bancroft, 223 F.3d at 1086. We have refined this to mean whether Caddy has either (1) “purposefully availed” himself of the privilege of conducting activities in the forum, or (2) “purposefully directed” his activities toward the forum. Schwarzenegger, 374 F.3d at 802. Although we sometimes use the phrase “purposeful availment” to include both purposeful availment and direction, “availment and" }, { "docid": "20108931", "title": "", "text": "contacts with California to warrant the exercise of jurisdiction over them in this state. Personal jurisdiction is determined by the applicable state personal jurisdiction statute and constitutional principles of due process. Data Disc, Inc. v. Systems Tech. Assoc., 557 F.2d 1280, 1286 (9th Cir.1977). California’s personal jurisdiction statute confers jurisdiction to the extent permitted by the due process clause. See Cal. Code of Civil Procedure, Section 410.10. The due process clause restricts the exercise of jurisdiction to those situations where a defendant has “certain minimum contacts with the forum state 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). Personal jurisdiction over a nonresident of the forum state can be either general or specific. Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir.1990). General jurisdiction is applicable where a defendant’s activities in the forum state are “substantial” or “continuous and systematic”, even if the cause of action is unrelated to those activities. Data Disc, 557 F.2d at 1287. None of the Individual Defendants lives in California, works in California or owns real property in California, although a few of the Individual Defendants have made occasional business related trips to California. Several of the Individual Defendants have not even been in California in the last five years. Thus, none of the Individual Defendants is sufficiently connected to California to warrant the exercise of general jurisdiction in this case. California courts may assert specific jurisdiction over non-resident defendants if their activities in the forum give rise to or are related to the litigation. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). Such specific jurisdiction is established by the following three-part test: (1) the out of state defendant must have purposefully directed its activities toward residents of the forum state; (2) the cause of action must arise out of or result from the defendant’s forum-related action; and (3) the forum’s exercise of personal jurisdiction must be" } ]

[ { "docid": "4119595", "title": "", "text": "the full enjoyment of the rights herein described\") and by traditional principles of equity, cf. Mitchell v. DeMario Jewelry, 361 U.S. 288 at 291-292, 80 S.Ct. 332; 4 L.Ed.2d 323 (1960) and Porter v. Warner Co., 328 U.S. 395 at 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1956); see also United States by Clark v. H. K. Porter, supra, 296 F.Supp. at 115, to fashion a decree which will correct the present effects of past discrimination. Indeed, as stated by the Fourth Circuit, \"In formulating relief from such practices the courts are not limited to simply parroting the Act's prohibitions but are permitted, if not required to `order such affirmative action as may be appropriate.'\" 407 F.2d 1047 at 1052; 42 U.S.C. § 2000e-5(g). However, in granting relief, the court must also anticipate collateral effects of a proposed decree to determine if such effects would create inequities so as to render the proposed relief inappropriate under the particular facts of the case. This court must now consider the relief requested by the Attorney General to determine if such relief should be granted under all the facts and circumstances. COLLATERAL EFFECTS OF REQUESTED RELIEF The Attorney General asks this court to remedy the discriminatory assignment policy of Bethlehem Steel Corporation's Lackawanna Plant by allowing all Negroes (and only Negroes) employed in the eleven departments to transfer from those departments to other departments in the Plant with rate retention and without the loss of seniority privileges. While it may be true that this remedy would completely erase any vestige of past discrimination, the court is of the opinion that the remedy would be too drastic, would result in considerable inequities to the other plant employees, and would create an unwarranted preference for Negroes over whites in the eleven departments. While the proposal would certainly make transfer more attractive to employees than presently, the court believes that, among other things, the following inequities would result: (1) The remedy benefits certain Negroes but not whites who are similarly situated. Although this court does not doubt its power in a proper case to provide a" } ]

[ { "docid": "940592", "title": "", "text": "carryover seniority was a present discriminatory effect of past discrimination, preserved by an otherwise neutral current employment policy, which should be remedied under the Civil Rights Act of 1964. The craft of train porter had been recognized by Frisco since at least December, 1918; and it had been organized and represented for collective bargaining purposes since 1921. It had always been filled solely by blacks, and the black train porters were always paid lower wages than brakemen, except for a period during and shortly after World War I, when the railroads were under federal control and the crafts of train porter and brakeman were merged. Train porters and brakemen were always represented by separate bargaining units. In 1928, Frisco and the BRT, which represented the brakemen, negotiated a collective bargaining agreement, which provided that “in the future hiring of employees in train, engine, and yard service but not including Train Porters, only white men shall be employed.” Although this agreement was rescinded in 1949, no black person was hired as a brakeman until 1966, with one exception. Yet, during this period from 1949 until 1965, at least 750 white brakemen were employed by Frisco at the entry level. From 1966 until June, 1970, 63 black brakemen and switchmen were hired. Train porters assisted passengers, handled baggage, kept coaches clean, and performed head-end braking duties exclusively on passenger trains. The rear-end braking duties on the passenger train, as well as braking duties on both ends of freight trains, were performed by brakemen; The Government insists that throughout the period in question, train porters were relegated to that craft simply because of their race, and that this is borne out by the fact they per formed essentially the same functions as the passenger brakeman. Evidence given by individuals who had been train porters with Frisco revealed that their braking duties consisted of flagging blocks, throwing switches, watching for and repairing “hot boxes,” setting out and picking up cars, setting and unsetting hand brakes, replacing broken knuckles (train couplings), coupling and uncoupling air and steam hoses, giving hand signals, using and maintaining lanterns," }, { "docid": "940634", "title": "", "text": "subject to the physical labor that the brakemen performed at the freight level. The testimony of train porters Howard (Deposition pp. 34-5) and Bagley (Deposition pp. 130-1) shows the above to be true.” 52 F.R. D. 276, 284. Train porters who as a matter of free choice sought train porter positions and who made no effort to apply for a brakeman job are not entitled to an artificial seniority which will disrupt the long existing brakemen’s seniority system. Judge Harper on the basis of the evidence before him determined that Frisco went out of its way to find employment for the train porters and that Frisco on its own accord provided the only relief that could possibly be ordered. He further properly found that granting the requested relief would inflict inequities upon the brakemen and disrupt the long-established seniority system. I would affirm the judgment of the trial court in all respects. Judge MEHAFFY and Judge STEPHENSON join in this dissent. . In my view, a substantial question exists on whether Title VII of the Civil Rights Act effects a change in the longstanding uniform holdings of the courts that under the Railroad Labor Act the mediation board has exclusive jurisdiction to make class or craft comj)osition determinations. Since this issue is not adequately briefed, or discussed in the majority opinion, I deem it inappropriate to discuss the issue." }, { "docid": "3250891", "title": "", "text": "is unreviewable in the courts.” To place the present case in proper perspective it is helpful to bear in mind that what Howard really decided was that brakemen could not forcibly take over the positional field of train porters, that is, could not displace them from their jobs. What then was (and is) the “positional field” of the “class of positions and employees known as ‘train porters’ ” ? In the words of the Court of Appeals: “The essence of the duties of this class or craft has always been the performance of the necessary braking work on the head end of Frisco’s passenger trains.” Hence, what plaintiff is proposing in the present action is a reclassification of his class or craft which would result in an enlargement of his “positional field,” and a take over of part of the positional field of brakemen, with the result that instead of train porters being displaced from their jobs (as in the first Howard case), brakemen presently employed on freight trains would conceivably be displaced by the former train porters if permitted to carry over their accumulated seniority- — a kind of discrimination in reverse. We are not, of course, ruling the propriety of such reclassification on the limited facts before us, being convinced that we lack jurisdiction to decide that question. We rule and hold, as we did in our former opinion, therefore, that although this Court has jurisdiction to decide the issue of hostile racial discrimination as such (that is, “whether hostile racial discrimination has been the foundation of unlawful invasions of job rights”) it has no jurisdiction to determine whether “train porter” is a proper class or craft classification for employees whose duties in large part are now the same as those of brakemen. Plaintiff argues that the Court should exercise jurisdiction on the ground there is in fact no administrative remedy and that the Supreme Court was mistaken in remitting plaintiff to the National Mediation Board for relief. In this connection, the complaint alleges that the train porters sought relief against the Railroad from the National Mediation Board" }, { "docid": "12778728", "title": "", "text": "those remaining are in jeopardy. But other crafts in the railroad industry have experienced a similar fate. It is common knowledge that dieselized power which permits longer and heavier freight trains, the inroads of truck transportation, and, more recently, Arbitation Award 282, resulting from Public Law 88-108, 77 Stat. 132, 45 U.S.C.A. § 157, note, have had the effect of eliminating brakemen assignments in freight and passenger service. Thus, it would appear that the reclassification of the craft of “train porter” to the craft of “brakemen” could result in further job losses by brakemen. But since the courts are prohibited from intruding into the “forbidden domain of disputed questions of reclassification” of crafts of the industry, we refrain from considering the economic effect that reclassification might have upon brakemen and train porters. As we have hereinabove indicated, appellant also sought relief from alleged practices in the handling of troop trains (Paragraph 14 of amended complaint). He alleged that “defendants have agreed to replace full passenger crews, with freight crews on troop trains, thereby terminating the services of Negro ‘train porters’ who are restricted to service on passenger trains. * * * By the aforesaid acts, defendants have violated their statutory duties under the Railway Labor Act”. In Paragraph 15 appellant alleged that on three specified dates in March, 1962, on March 23, 1960, and on other dates throughout the past 10 years, Frisco, with acquiescence and conspiratorial participation of Brotherhood, assigned white brakemen to duties usually performed by train porters; that appellees had thereby abrogated property and seniority rights of train porters. We noted at the outset that Paragraphs 14 and 15 precipitated discovery proceedings. Seemingly, all parties were afforded adequate opportunity to fully explore the factual bases for the claims. Appellant’s brief in this court, has been of little assistance. Instead of pin-pointing the claimed errors of the District Court, appellant has approached the Paragraph 14 and 15 claims in vague generalities, and has cited abstract principles of law without demonstrating their applicability to the questions at hand. We have nonetheless examined the pleaded claims in the light in" }, { "docid": "940614", "title": "", "text": "100'% of the time spent in training plus 50% of his former seniority as a train porter. Former train porters presently in service as brakemen shall be entitled to seniority credit as brakemen for 100% of the time they have spent as brakemen plus 50% of their former seniority as train porters. This seniority may then be used for all purposes for which brakeman seniority is presently used, except it shall not be used to force Frisco to assign a former train porter to a job for which he has been properly determined to be unqualified, and it shall not be used to force Frisco to assign more than one former train porter to any one crew. IV. No back pay will be awarded. In reaching this decision, we have taken into consideration the fact that the train porters (and the Government) took the position that a complete merger of the two crafts was required with full seniority carryover. Since this demand has been denied by this Court, it cannot be said that Frisco acted in bad faith or erred in refusing to voluntarily grant that request. Moreover, it would be impossible to determine on what date those train porters who are now physically unqualified to become brakemen, became physically unable to perform. Reversed and remanded for further proceedings consistent with this opinion. . This is the latest in a series of eases involving essentially the same parties. Howard v. Thompson, 72 F.Supp. 695 (E.D.Mo.1947), rev’d, 191 F.2d 442 (8 Cir. 1951), aff’d, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952); Howard v. St. Louis-San Francisco Railway Co., 215 F.2d 690 (8 Cir. 1954); Howard v. St. Louis-San Francisco Railway Co., 244 F.Supp. 1008 (E.D.Mo.1965), aff’d, 361 F.2d 905 (8 Cir.), cert. denied, 385 U.S. 986, 87 S.Ct. 598, 17 L.Ed.2d 448 (1966). However, this is the first action instituted subsequent to the enactment of the Civil Rights Act of 1964. Moreover, it is the first case to consider the distinction between the duties of the train porter and the freight brakeman. . Train i>orters should not be" }, { "docid": "940624", "title": "", "text": "criteria which limit promotions to qualifications. Thus, a brakeman who prefers the regular hours of yard work can pass up intermediate jobs and after accumulating seniority can “leapfrog” to rearend brakeman or conductor on through-freights. Similarly, Frisco concedes that the porters it has hired are adequately performing their duties despite the fact that due to their lack of seniority they are relegated to the most difficult and dangerous work. Consequently, I cannot say “business necessity” requires stripping all porters of all seniority. Furthermore, I think a remedy fashioned within the guidelines enumerated in the majority opinion will adequately and equitably remedy the violation. By requiring preferential hiring and some training, the Court remedies the lack of jobs and lack of experience which resulted from the discriminatory hiring. By allowing Frisco to limit porters’ job-range upon objective criteria and to limit former porters to one per crew, the business necessity consideration of safety should be adequately satisfied. Finally, I am unpersuaded by the reverse discrimination argument in this case. While the Act prohibits giving any racial preference, it expressly permits requiring affirmative remedial action. 42 U.S.C. § 2000e-5(g). The Court’s remedy conforms to that mandate. Contrary to the District Court’s conclusion, the porters are to be granted carryover seniority not “because of the color of their skin,” but because they have heretofore been denied seniority because of the color of their skin. If that affirmative relief works to frustrate the seniority expectations of some incumbent brakemen, it will only be frustrating expectations which would not exist but for the discrimination which is finally being redressed. United States v. Bethlehem Steel Corp., 446 F.2d 652, 663 (2nd Cir. 1971). In the final analysis, allegations of reverse discrimination contend only that the hardships accruing from past wrongs should continue to fall exclusively upon those already discriminated against. The answer to that contention is self-evident. I concur in the judgment and opinion of the Court. HEANEY, Circuit Judge, with whom LAY, Circuit Judge, joins, concurring in part and dissenting in part. We concur in Sections I, II, and III of the majority opinion, and" }, { "docid": "743879", "title": "", "text": "of the Railroad Adjustment Board. No appeal was taken from this decision. In Neal v. System Board of Adjustment (Missouri Pacific Railroad), 348 F.2d 722 (8 Cir. 1965) Negro employees of the Railroad working in the St. Louis terminal and represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees alleged racial discrimination in the abolition of existing positions and the establishment of new positions in the terminal operation. Summary judgment against them was sustained by us for failure to exhaust administrative procedures available in the Union before seeking equitable relief against the Union or its officers in the federal courts. Judge Johnsen in the original Howard case, 191 F.2d 442 (8 Cir.1951) attempted to resolve the dispute between the train porters and the brakemen by viewing the collective-bargaining agreement between the brakemen and the Railroad, allowing the brakemen to take over the train porters’ head end braking duties, as calling for a merger of the crafts of train porter and brakeman. This would protect the displaced train porters by preserving their functional operations and seniority rights. Then under the doctrine of Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944) the bargaining agent for the brakemen, as the surviving craft, could not discriminate against minority groups in carrying out representational duties under the Railway Labor Act. However, the Supreme Court, though affirming the original Howard decision on certiorari by holding that the racially oriented and predatory bargaining agreement forced by the Brakemen’s Union on the Railroad should be enjoined, cautioned, “that disputed questions of reclassification of the craft of ‘train porters’ are committed by the Railway Labor Act to the National Mediation Board. Switchmen’s Union v. National Mediation Board, [320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61] supra.” at 775 of 343 U.S. at 1026 of 72 S.Ct. Therefore, insofar as plaintiffs might have sought relief by way of merger or reclassification of their craft, they were foreclosed from any judicial relief by the holding in Railroad Trainmen v. Howard, supra; we recognized this in" }, { "docid": "940608", "title": "", "text": "of safety. Safety can be assured in other ways far more certain and practical than those inherent in the craft seniority system, and we feel confident that the trial court, acting within the general guidelines provided herein, will be able to fashion a remedy which will not only assure the safety of the public and employees of Frisco, but will also accord to qualified train porters their “rightful place” as brakemen. REMEDY In determining an appropriate remedy, courts possess wide discretion in fashioning decrees to insure compliance with the Civil Rights Act of 1964. Parham v. Southwestern Bell Telephone Co., supra, 433 F.2d at 428; see United States v. Ironworkers Local 86, 443 F.2d 544, 553 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971). What we seek, of course, is a reasonable alternative that will eliminate or reduce the effects of past discrimination, as well as protect safety and efficiency. The Government seeks a complete merger of the crafts, or in the alternative to require Frisco to permit qualified black train porters to bid on future vacancies in freight braking jobs as they become available, and to exercise in those jobs their total company seniority for all future purposes for which resort to seniority would customarily be made. This alternative remedy has been referred to as “rightful place” relief, while the complete and immediate merger of crafts has been referred to as “freedom now” relief. See Note, Title VII, Seniority Discrimination, and the Incumbent Negro., 80 Harv.L.Rev. 1260, 1268-1269 (1967). The Government also seeks back pay equal to “the difference between what the member of the class received as a Train Porter, or from other employment if his position as Train Porter had been abolished, and what he would have received as a Brakeman, from July 2, 1965 to such time as he is allowed to use his Train Porter seniority to bid on and secure a job as a freight Brakeman (or until the date he voluntarily retired or became physically unable to perform as Brakeman).” Frisco and UTU urge that no relief" }, { "docid": "940591", "title": "", "text": "Co., No. 71-1247 (8th Cir. Feb. 22, 1972). The United States filed a petition for rehearing en banc, and it was granted. Upon rehearing en banc, we reverse and remand for further proceedings consistent with the views expressed in this opinion. The essence of the claim of the United States is that from 1928 to 1966 Frisco discriminated against blacks in its hiring practices relating to brakemen; that black applicants for jobs with Frisco were forced to accept the lower paying job of train porter; that train porters performed head-end braking duties as well as duties relating to passenger care and maintenance on passenger trains;that when passenger trains were discontinued by Frisco, passenger brakemen were allowed to carry over all of their seniority to freight braking jobs; that even though train porters performed braking duties a substantial portion of the time they spent as train porters, they were not permitted to carry over any seniority to freight braking, but were required to start at the bottom of the seniority ladder; and that this denial of carryover seniority was a present discriminatory effect of past discrimination, preserved by an otherwise neutral current employment policy, which should be remedied under the Civil Rights Act of 1964. The craft of train porter had been recognized by Frisco since at least December, 1918; and it had been organized and represented for collective bargaining purposes since 1921. It had always been filled solely by blacks, and the black train porters were always paid lower wages than brakemen, except for a period during and shortly after World War I, when the railroads were under federal control and the crafts of train porter and brakeman were merged. Train porters and brakemen were always represented by separate bargaining units. In 1928, Frisco and the BRT, which represented the brakemen, negotiated a collective bargaining agreement, which provided that “in the future hiring of employees in train, engine, and yard service but not including Train Porters, only white men shall be employed.” Although this agreement was rescinded in 1949, no black person was hired as a brakeman until 1966, with" }, { "docid": "940596", "title": "", "text": "brakemen was done through bidding, based upon seniority as a brakeman. When a brakeman became a conductor he retained his seniority as a brakeman in case he wanted to give up his conductor classification and return to braking. Passenger service was discontinued by Frisco in 1967. Consequently, the position of train porter was abolished and all of the black train porters were displaced. Frisco did, however, offer those train porters, who were still in service and who did not choose to retire, positions in other crafts; but less than half of that number accepted, because none were allowed to retain any of the seniority they had acquired as train porters. After consideration of these facts, the trial judge dismissed the action and entered judgment for the defendants upon two basic findings. First, he concluded that the crafts of train porter and brakeman were distinct in that they were based upon functional differentiations, and that thereby train porters were not qualified to perform as freight brakemen. This finding was based upon testimony by defendants’ witnesses that the train porter’s primary function was that of looking after passengers, and that any braking was merely incidental. Second, he specifically found that the train porters had not been discriminated against since the enactment of the Civil Rights Act of 1964, and that therefore, no remedy was justified. He found that the train porters had been accorded adequate relief in the form of an offer of job preference as brakeman, but without carryover seniority, and that this was the only affirmative relief possible to remove the taint of past racial discrimination. A majority of the original panel, of this Court, in affirming the trial court’s decision on the basis of his opinion, stressed the applicability of the “business necessity” doctrine and that seniority carryover could occur only at the expense of safety and efficiency. On rehearing, neither the Government nor the defendants suggested any new alternative remedies that would adequately protect safety and efficiency and, at the same time, relieve the train porters of the continuing effects of past discrimination. The alternative recommended by the" }, { "docid": "940620", "title": "", "text": "of the Railroad Retirement Act. Thus, the Government now claims that the class of train porters entitled to relief consists of fifty-two. . The court shall determine which of the fifty-two train porters, supra n. 6, are entitled to affirmative relief in accordance with this decision. It shall not automatically exclude those train porters who had been furloughed by Frisco prior to July 1, 1965, but remained on the train porter seniority roster. . For example, all train porters may be notified and required to express interest within a reasonable set period. See United States v. Central Motor Lines, Inc., 338 F.Supp. 532, 562 (W.D.N.C. 1971). . It should be remembered that “qualifications” means the capacity to perform rather than the possession of “immediately marketable skills.” Gould, Seniority and the Black Worker: Reflections on Quarles and Its Implications, 47 Tex.L.Rev. 1039, 1054 (1969). A screening process could be created by which these qualifications are determined and those bidding into particular jobs are evaluated. See e. g., United States v. Jacksonville Terminal Co., supra, 451 F.2d at 459. . The figure of 50% carryover seniority takes into consideration: a) the percentage of time spent by the train porters in performing braking duties, and the disputed testimony relating thereto; b) the fact that some train porters may have preferred the work of train porter to the work of a brakeman; and c) the fact that blacks were illegally denied the right to become brakemen from 1928 until 1966. No mathematical equation is possible in such circumstances, and this Court has reached this figure in an effort to accord the former train porters their “rightful place” on the brakeman’s seniority roster once they have been found to be qualified to be brakemen. See e. g., Carter v. Gallagher, 452 F.2d 315, 331 (8th Cir.) cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972), where this Court also adopted a percentage type remedy. MATTHES, Chief Judge, with whom LAY, HEANEY, and BRIGHT, Circuit Judges, join, concurring. After careful deliberation, I feel constrained to join the opinion of the Court. However, in" }, { "docid": "940633", "title": "", "text": "343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283, decided in 1952, enjoined discrimination against employment of Negroes by reason of race. It cannot be fairly assumed that the railroad would continue to discriminate in violation of the injunction. I find no substantial evidence of any discrimination since 1952. In a subsequent action, Howard v. St. Louis-San Francisco Ry. Co., supra, at p. 911 of 361 F.2d, we accept the District Court’s finding of absence of discrimination stating: “The record fails to establish a pattern of discrimination, or collusive action between Frisco and Brotherhood.” I find no substantial evidence in the record which reflects that any of the train porters applied for or were denied brakemen’s positions. There is substantial evidence that the train porter’s position was a less hazardous and less burdensome job than that of brakemen and carried regular and more desirable hours. Judge Harper points out: “The record indicates that some Negro train porters preferred assignments to the train porter craft, for in the train porter craft the train porter was not subject to the physical labor that the brakemen performed at the freight level. The testimony of train porters Howard (Deposition pp. 34-5) and Bagley (Deposition pp. 130-1) shows the above to be true.” 52 F.R. D. 276, 284. Train porters who as a matter of free choice sought train porter positions and who made no effort to apply for a brakeman job are not entitled to an artificial seniority which will disrupt the long existing brakemen’s seniority system. Judge Harper on the basis of the evidence before him determined that Frisco went out of its way to find employment for the train porters and that Frisco on its own accord provided the only relief that could possibly be ordered. He further properly found that granting the requested relief would inflict inequities upon the brakemen and disrupt the long-established seniority system. I would affirm the judgment of the trial court in all respects. Judge MEHAFFY and Judge STEPHENSON join in this dissent. . In my view, a substantial question exists on whether Title VII of the" }, { "docid": "743878", "title": "", "text": "as a question of proper craft classification. In Howard v. St. Louis-San Francisco Railway Co., 361 F.2d 905 (8 Cir.1966), this Court denied relief to the train porters seeking as a class to be classified as brakemen with preservation of seniority rights and security in job assignments. Our holding there was twofold: (1) that only the Mediation Board had power to make class or craft determination, citing a list of cases, headed by Railroad Trainmen v. Howard, supra, and (2) that absent a change in classification the issues between the parties represented a minor dispute under the Railway Labor Act which should be determined by administrative procedures available for minor disputes under that Act with final jurisdiction resting in the Railroad Adjustment Board. In Nunn v. Missouri Pacific Railroad Co., supra, the train porters were unsuccessful in fighting abolition of train porter positions on ten passenger trains of the Missouri Pacific Railroad. The United States District Court for the Eastern District of Missouri held that this constituted a minor dispute subject to the ultimate jurisdiction of the Railroad Adjustment Board. No appeal was taken from this decision. In Neal v. System Board of Adjustment (Missouri Pacific Railroad), 348 F.2d 722 (8 Cir. 1965) Negro employees of the Railroad working in the St. Louis terminal and represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees alleged racial discrimination in the abolition of existing positions and the establishment of new positions in the terminal operation. Summary judgment against them was sustained by us for failure to exhaust administrative procedures available in the Union before seeking equitable relief against the Union or its officers in the federal courts. Judge Johnsen in the original Howard case, 191 F.2d 442 (8 Cir.1951) attempted to resolve the dispute between the train porters and the brakemen by viewing the collective-bargaining agreement between the brakemen and the Railroad, allowing the brakemen to take over the train porters’ head end braking duties, as calling for a merger of the crafts of train porter and brakeman. This would protect the displaced train porters by" }, { "docid": "940597", "title": "", "text": "the train porter’s primary function was that of looking after passengers, and that any braking was merely incidental. Second, he specifically found that the train porters had not been discriminated against since the enactment of the Civil Rights Act of 1964, and that therefore, no remedy was justified. He found that the train porters had been accorded adequate relief in the form of an offer of job preference as brakeman, but without carryover seniority, and that this was the only affirmative relief possible to remove the taint of past racial discrimination. A majority of the original panel, of this Court, in affirming the trial court’s decision on the basis of his opinion, stressed the applicability of the “business necessity” doctrine and that seniority carryover could occur only at the expense of safety and efficiency. On rehearing, neither the Government nor the defendants suggested any new alternative remedies that would adequately protect safety and efficiency and, at the same time, relieve the train porters of the continuing effects of past discrimination. The alternative recommended by the Government, which was urged by it and considered by the panel earlier, would accord qualified train porters full seniority carryover in bidding on future vacancies as brakemen. Thus, the only difference in that remedy from a complete merger of crafts is that there could be no displacement of incumbent brakemen ; rather, advancement would be possible only when a vacancy occurs. The net long term effect of both, however, is the same. We are convinced that a remedy is justified and that it is not impossible to fashion. First of all, it is clear there was overt racial discrimination prior to the enactment of the Civil Rights Act of 1964, and that the continuing effect of that past discrimination perpetuates itself in Frisco’s refusal to accord the train porters any seniority. Second, the business necessity doctrine does not bar relief where an acceptable remedy provides adequate safeguards for safety and efficiency. And third, there is an acceptable remedy in this case. PRESENT EFFECTS OF PAST DISCRIMINATION The facts disclosed by the record in this case," }, { "docid": "940630", "title": "", "text": "the findings of the district court preclude reclassification of the train porters as freight brakemen with carry-over seniority. Not only is there a functional difference between the crafts of train porters and brakemen, but Frisco’s seniority system is based on a recognition that a brakeman’s job is complex and hazardous, requiring related experience in safety and repair work at the various levels of job progression. Reclassification with carry-over seniority, under these circumstances, could occur only at the expense of safety and efficiency. Litigation involving the train porters and their economic status has been before this Court almost continuously since 1946. A review of this litigation discloses that although these blacks and their predecessors were originally locked into the train porter craft by joint Frisco-Union discriminatory practices, their plight in the last two decades has been predominantly economic in origin. The advent of the diesel engine, the dramatic decline of the railroad industry and the elimination of passenger service in 1967 all have combined to wreak havoc upon train porters, rendering them virtually an extinct occupational species. The majority opinion in effect directs a merger of the crafts, albeit the results of a complete merger are tempered by “minimum qualifications” and “50% seniority.” This remedy destroys a valid seniority system based on functional distinctions, a result which appears to us is not contemplated by the Act. In addition it obviously creates a climate for endless litigation. . See United States v. Jacksonville Terminal Co., 451 F.2d 418, 443-448 (CA5 1971). . See United States by Clark v. St. Louis-San Francisco Railway Co., 52 F.R.D. 276 (E.D.Mo.1971) (cases cited at 277-278). VAN OOSTERHOUT, Senior Circuit Judge (dissenting). I dissent from the majority opinion upon all issues except the determination at division IV which holds that no back pay will be awarded. I base my dissent on the dissenting opinion prepared by Judge Stephenson and upon the following additional observations. Judge Harper points out at pp. 284-285 of 52 F.R.D. that Frisco’s employees, by reason of the diesel engine and other technology advancements and the discontinuance of passenger and other services, have been" }, { "docid": "940632", "title": "", "text": "reduced from 28,000 to 8,000, and that many employees have suffered from the decline of employment. He properly determined that Negro train porters have not been discriminated against since the enactment of the Civil Rights Act and that the elimination of their jobs was caused by the authorized termination of passenger service. See Howard v. St. Louis-San Francisco Ry. Co., 8 Cir., 361 F.2d 905, 907-908. Judge Harper appropriately observes: “If this court were to grant the proposed relief, it would place the Negro train porters in a favored position only because of the color of their skin. The craft system has always been present within the railroad industry. When freight brakemen positions were eliminated by the diesel engine, the brakemen could not bid on the train porter positions regardless of the seniority they possessed. Now, the court is confronted by the reverse situation. In effect, the train porters seek super-seniority. Such is not the intent of the Civil Rights Act.” 52 F.R.D. 276, 285. The Supreme Court in Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283, decided in 1952, enjoined discrimination against employment of Negroes by reason of race. It cannot be fairly assumed that the railroad would continue to discriminate in violation of the injunction. I find no substantial evidence of any discrimination since 1952. In a subsequent action, Howard v. St. Louis-San Francisco Ry. Co., supra, at p. 911 of 361 F.2d, we accept the District Court’s finding of absence of discrimination stating: “The record fails to establish a pattern of discrimination, or collusive action between Frisco and Brotherhood.” I find no substantial evidence in the record which reflects that any of the train porters applied for or were denied brakemen’s positions. There is substantial evidence that the train porter’s position was a less hazardous and less burdensome job than that of brakemen and carried regular and more desirable hours. Judge Harper points out: “The record indicates that some Negro train porters preferred assignments to the train porter craft, for in the train porter craft the train porter was not" }, { "docid": "940629", "title": "", "text": "421 (CA8 1970); United States v. Sheet Metal Workers Int’l Ass’n, Local 36, 416 F.2d 123 (CA8 1969) and Local 189, United Papermakers and Paperworkers, AFL-CIO, CLC v. United States, 416 F.2d 980 (CA5 1969) See Note, Title VII, Seniority Discrimination And The Incumbent Negro, 80 Harv.L.Rev. 1260 (1967). It is equally clear, however, that courts, with their broad authority to fashion remedies under the Act should not emasculate valid seniority systems so long as they are conceived out of business necessity and not out of racial discrimination. Local 189, supra, at 989, 993-994; Whitfield v. United Steelworkers of America, Local 2708, 263 F.2d 546 (CA5 1959) and United States by Clark v. H. K. Porter Co., 296 F.Supp. 40, 66-68 (N.D.Ala.1968). See Note, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109 (1971); Kovarsky, Current Remedies for the Discriminatory Effects of Seniority Agreements, 24 Vand.L.Rev. 683 (1971) and Yeager, The “Unqualified” Minority Worker, 59 Geo.L.J. 1265 (1971). Cf. Griggs, supra. A careful review of the record convinces us the findings of the district court preclude reclassification of the train porters as freight brakemen with carry-over seniority. Not only is there a functional difference between the crafts of train porters and brakemen, but Frisco’s seniority system is based on a recognition that a brakeman’s job is complex and hazardous, requiring related experience in safety and repair work at the various levels of job progression. Reclassification with carry-over seniority, under these circumstances, could occur only at the expense of safety and efficiency. Litigation involving the train porters and their economic status has been before this Court almost continuously since 1946. A review of this litigation discloses that although these blacks and their predecessors were originally locked into the train porter craft by joint Frisco-Union discriminatory practices, their plight in the last two decades has been predominantly economic in origin. The advent of the diesel engine, the dramatic decline of the railroad industry and the elimination of passenger service in 1967 all have combined to wreak havoc upon train porters, rendering them virtually an extinct occupational" }, { "docid": "940609", "title": "", "text": "black train porters to bid on future vacancies in freight braking jobs as they become available, and to exercise in those jobs their total company seniority for all future purposes for which resort to seniority would customarily be made. This alternative remedy has been referred to as “rightful place” relief, while the complete and immediate merger of crafts has been referred to as “freedom now” relief. See Note, Title VII, Seniority Discrimination, and the Incumbent Negro., 80 Harv.L.Rev. 1260, 1268-1269 (1967). The Government also seeks back pay equal to “the difference between what the member of the class received as a Train Porter, or from other employment if his position as Train Porter had been abolished, and what he would have received as a Brakeman, from July 2, 1965 to such time as he is allowed to use his Train Porter seniority to bid on and secure a job as a freight Brakeman (or until the date he voluntarily retired or became physically unable to perform as Brakeman).” Frisco and UTU urge that no relief be granted, and have suggested no alternative remedies even though they were specifically requested to do so by this Court. At its earliest convenience, the trial court shall determine the ambit of the class, and take additional evidence pertaining solely to the remedy to be fashioned. Based upon that additional evidence, and using the guidelines hereinafter set forth, the trial court shall then fashion a remedy which will accord the train porters their “rightful place” as Frisco brakemen, while making certain Frisco will not be required to hire or assign any former train porter who is not physically able, or not qualified, to perform the braking job to which he seeks to be assigned. The general guidelines to be used in fashioning this remedy are. as follows: I. Frisco must offer to employ all of the former train porters as brakemen within six months from the date the trial court’s decision becomes final. The trial court shall determine or approve the means by which the train porters are notified of their right to employment as" }, { "docid": "940631", "title": "", "text": "species. The majority opinion in effect directs a merger of the crafts, albeit the results of a complete merger are tempered by “minimum qualifications” and “50% seniority.” This remedy destroys a valid seniority system based on functional distinctions, a result which appears to us is not contemplated by the Act. In addition it obviously creates a climate for endless litigation. . See United States v. Jacksonville Terminal Co., 451 F.2d 418, 443-448 (CA5 1971). . See United States by Clark v. St. Louis-San Francisco Railway Co., 52 F.R.D. 276 (E.D.Mo.1971) (cases cited at 277-278). VAN OOSTERHOUT, Senior Circuit Judge (dissenting). I dissent from the majority opinion upon all issues except the determination at division IV which holds that no back pay will be awarded. I base my dissent on the dissenting opinion prepared by Judge Stephenson and upon the following additional observations. Judge Harper points out at pp. 284-285 of 52 F.R.D. that Frisco’s employees, by reason of the diesel engine and other technology advancements and the discontinuance of passenger and other services, have been reduced from 28,000 to 8,000, and that many employees have suffered from the decline of employment. He properly determined that Negro train porters have not been discriminated against since the enactment of the Civil Rights Act and that the elimination of their jobs was caused by the authorized termination of passenger service. See Howard v. St. Louis-San Francisco Ry. Co., 8 Cir., 361 F.2d 905, 907-908. Judge Harper appropriately observes: “If this court were to grant the proposed relief, it would place the Negro train porters in a favored position only because of the color of their skin. The craft system has always been present within the railroad industry. When freight brakemen positions were eliminated by the diesel engine, the brakemen could not bid on the train porter positions regardless of the seniority they possessed. Now, the court is confronted by the reverse situation. In effect, the train porters seek super-seniority. Such is not the intent of the Civil Rights Act.” 52 F.R.D. 276, 285. The Supreme Court in Brotherhood of Railroad Trainmen v. Howard," }, { "docid": "10702032", "title": "", "text": "called from the extra board, a list of qualified porters who were not assigned to a regular run. With sufficient seniority, he could obtain a regular job as a porter. The entry level for a nonblack man was the brakeman position. A white man could qualify for the brakeman position by taking a rules examination, passing a physical examination, and completing student trips on local freight trains. The rules examination for a brakeman applicant and the administration thereof were the same as for train porters. Before 1960, a new hire started as an extra on all of the types of trains run by Santa Fe. After accumulating sufficient seniority, a brakeman could obtain a regular freight braking job. Generally a brakeman needed substantial seniority to obtain a regular braking job on passenger trains. Some brakemen never sought passenger work. A brakeman on a passenger train could return to freight service by exercising his seniority rights. The Santa Fe has always maintained and published seniority rosters for each craft for each district or geographic area. An individual’s seniority date is the earliest date of continuous service in a particular craft within a particular district. An employee’s seniority date determines promotion opportunities as well as his right to protect work within his craft and district. Seniority is not transferable from one district to another or from one craft to another. The first known contract containing seniority provisions was an 1892 agreement between Santa Fe and predecessors to UTU. In 1960, the seniority rosters of brakemen and yardmen were combined, giving them dual rights. After that date, a new hire was given a seniority date applicable to yard and road service. A UTU predecessor, the Brotherhood of Railroad Trainmen (BRT), made several attempts to transfer braking duties from black train porters to white brakemen. BRT protested that the use of porters on passenger trains to perform the duties of head-end brakemen violated the contracts between the BRT and Santa Fe providing for the seniority rights and duties of brakemen. In 1959, the National Railroad Adjustment Board issued Award 19324, holding that only train" } ]

[ { "docid": "22631945", "title": "", "text": "the original sentencing scheme. In Miller v. Florida, 482 U. S. 423 (1987), we unanimously concluded that a revision in Florida’s sentencing guidelines that went into effect between the date of petitioner’s offense and the date of his conviction violated the Ex Post Facto Clause. Our determination that the new guideline was “ ‘more onerous than the prior law,’ ” id., at 431 (quoting Dobbert v. Florida, 432 U. S. 282, 294 (1977)), rested entirely on an objective appraisal of the impact of the ehange on the length of the offender’s presumptive sentence. 482 U. S., at 431 (“Looking only at the change in primary offense points, the revised guidelines law clearly disadvantages petitioner and similarly situated defendants”). In California Dept. of Corrections v. Morales, 514 U. S. 499 (1995), we also relied entirely on objective considerations to support our conclusion that an amendment to California’s parole procedures that decreased the frequency of parole hearings for certain offenders had not made any “change in the ‘quantum of punishment,’ ” id., at 508. The amendment at issue in Morales allowed the parole board, after holding an initial parole hearing, to defer for up to three years subsequent parole suitability hearings for prisoners convicted of multiple murders if the board found that it was unreasonable to expect that parole would be granted at a hearing during the subsequent years. We stated that the relevant inquiry is whether the “change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Id., at 507, n. 3. After making that inquiry, we found that “there is no reason to conclude that the amendment will have any effect on any prisoner’s actual term of confinement.” Id., at 512. Our holding rested squarely on the conclusion that “a prisoner’s ultimate date of release would be entirely unaffected by the change in the timing of suitability hearings.” Id., at 513. Although we held that “speculative and attenuated possibilities]” of increasing the measure of punishment do not implicate the Ex Post Facto Clause, id., at 509, the bulk of our analysis focused on" } ]

[ { "docid": "2643859", "title": "", "text": "matter of degree.” Id. at 509, 115 S.Ct. 1597 (internal quota tions and citations omitted, emphasis in original). “Retroactive changes in laws governing parole of prisoners, in some instances, may be violative” of the prohibition against ex post facto laws, Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), but the controlling inquiry is not whether the law is retroactive, but “whether it produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Morales, 514 U.S. at 509, 115 S.Ct. 1597 (footnote omitted); see also Lynce v. Mathis, 519 U.S. 433, 444, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). When the amendment creates only “the most speculative and attenuated possibility” of increasing the measure of punishment, it is “insufficient under any threshold” to violate the Ex Post Facto Clause. Morales, 514 U.S. at 509, 115 S.Ct. 1597. While the Supreme Court has not set forth any single formula for identifying whether a specific law violates the ex post facto prohibition, the Morales Court did identify several factors to be considered in making such a determination. At issue in Morales was a California statute that, similar to the Oklahoma statute in question here, decreased the frequency of parole reconsideration hearings for prisoners. Id. at 501-02, 115 S.Ct. 1597. The Supreme Court held that the California law did not violate the ex post facto prohibition because: (1) the statute applied to a class of prisoners for whom “the likelihood of release on parole [was] quite remote,” id. at 510, 115 S.Ct. 1597; (2) the amendment did not affect the timing of any prisoner’s initial parole hearing, only the timing of reconsideration hearings, id. at 511, 115 S.Ct. 1597; and (3) the parole board retained “the authority to tailor the frequency of subsequent hearings [ ] to the particular circumstances of [an] individual prisoner.” Id. More recently, in Garner v. Jones, the Supreme Court again addressed this issue, this time in the context of a Georgia statute that decreased the frequency of parole consideration hearings. 529 U.S. at 246, 120 S.Ct. 1362. The" }, { "docid": "964891", "title": "", "text": "851, 854 (6th Cir.2006). B. Requirements for proving an ex post facto violation Two issues, both regarding the parole board’s retroactive application of the new parole provisions, are now before us: (1) Did the parole board commit an ex post facto violation when it retroactively applied the may/shall provision, and (2) did it commit an ex post facto violation when it ret roactively applied the seriousness provision? Because these two inquiries employ a similar method of analysis, we will discuss them together. The Constitution prohibits states from imposing ex post facto laws. U.S. CONST, art. I, § 10, cl. 1. An ex post facto law possesses two elements: (1) “it must apply to events occurring before its enactment,” and (2) “it must disadvantage the offender affected by it.” Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) (citation and quotation marks omitted) (holding that a Florida statute canceling provisional release credits violated the Ex Post Facto Clause). Retroactive application of parole provisions falls within the ex post facto prohibition if such an application creates a “sufficient risk of increasing the measure of punishment attached to the covered crimes.” Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000) (citation and quotation marks omitted). The Supreme Court has not articulated a precise formula for determining whether a risk is “sufficient.” See Cal. Dep’t of Corrections v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (“We have previously declined to articulate a single ‘formula’ for identifying those legislative changes that have a sufficient effect on substantive crimes or punishments to fall within the constitutional prohibition [on ex post facto laws], and we have no occasion to do so here.”). Despite its failure to proclaim a particular formula, the Supreme Court has consistently required petitioners to proffer actual evidence, rather than mere speculation, regarding the retroactive application’s disadvantageous effect. See, e.g., Morales, 514 U.S. at 509, 115 S.Ct. 1597 (“The amendment [in question] creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure" }, { "docid": "964892", "title": "", "text": "such an application creates a “sufficient risk of increasing the measure of punishment attached to the covered crimes.” Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000) (citation and quotation marks omitted). The Supreme Court has not articulated a precise formula for determining whether a risk is “sufficient.” See Cal. Dep’t of Corrections v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (“We have previously declined to articulate a single ‘formula’ for identifying those legislative changes that have a sufficient effect on substantive crimes or punishments to fall within the constitutional prohibition [on ex post facto laws], and we have no occasion to do so here.”). Despite its failure to proclaim a particular formula, the Supreme Court has consistently required petitioners to proffer actual evidence, rather than mere speculation, regarding the retroactive application’s disadvantageous effect. See, e.g., Morales, 514 U.S. at 509, 115 S.Ct. 1597 (“The amendment [in question] creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes, and such conjectural effects are insufficient for any threshold we might establish under the Ex Post Facto Clause.”). The 'Supreme Court has held that the retroactive application of parole laws is unconstitutional where inmates can demonstrate with certainty that their punishment increased as a result of the retroactive application. In Lynce, for example, the Court considered whether Florida’s retroactive elimination of provisional-release credits for certain classes of inmates constituted an ex post facto violation. 519 U.S. at 435, 117 S.Ct. 891. The petitioner in Lynce was released early from prison partially as a result of his accumulation of provisional-release credits awarded by the state of Florida to alleviate prison overcrowding. Id. at 436, 117 S.Ct. 891. Shortly after he was released, the Florida legislature cancelled these credits, and a rearrest warrant was issued for Lynce. Id. The Lynce Court held that “the actual course of events makes it unnecessary to speculate about what might have happened,” and that the retroactive application “has unquestionably disadvantaged petitioner because it resulted in his" }, { "docid": "19931105", "title": "", "text": "514 U.S. 499, 508-509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); and Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)). While parole regulations may be laws for purposes of ex post facto analysis, see Royster v. Fauver, 775 F.2d 527, 535 (3d Cir.N.J. 1985) (citing U.S. ex rel. Forman v. McCall, 709 F.2d 852 (3d Cir.1983)), “[t]o be eligible for habeas corpus based on a violation of the Ex Post Facto Clause, a petitioner must show both a retroactive change in law or policy and that this change [in parole law] caused individual disadvantage by creating a significant risk of increasing his punishment.” Richardson v. Pa. Bd. of Prob. & Parole, 423 F.3d 282, 284 (3d Cir.2005) (emphasis removed, internal quotations and citations omitted); see also Mickens-Thomas v. Vaughn, 321 F.3d 374, 384 (3d Cir.2003). It follows that not every retroactive change violates the Ex Post Facto Clause, even if the change creates a risk of affecting a particular inmate’s terms of confinement. See Gamer, 529 U.S. at 250, 120 S.Ct. 1362 (citing Morales, 514 U.S. at 509, 115 S.Ct. 1597). However, as a threshold matter, it must be a “law” that makes the punishment more burdensome for ex post facto purposes. See Jubilee v. Horn, 959 F.Supp. 276, 282 (E.D.Pa.1997). Although, in the context of parole, the Court of Appeals has stated that if parole guidelines are applied without substantial flexibility, they may constitute laws within the meaning of the Ex Post Facto Clause, see U.S. ex rel. Forman v. McCall, 709 F.2d 852, 862 (3d Cir.1983); see also Crowell v. United States Parole Comm’n, 724 F.2d 1406, 1408 (3d Cir.1984), an inflexible provision setting forth the number of parole examiners participating in a parole hearing does not constitute a “law” amenable to ex post facto challenge, even if a change in that provision effectively substitutes a plurality requirement with the one of unanimity. See Mickens-Thomas v. Vaughn, 2000 U.S. Dist. LEXIS 20859, at *29 (E.D.Pa. Aug. 22, 2000), aff'd, 321 F.3d 374 (3d Cir.2003); see also Burnett v. Young, 746 F.2d 1475," }, { "docid": "23524091", "title": "", "text": "(2003), a majority of the Pennsylvania Supreme Court reaffirmed that the considerations of public safety and administration of justice “have always been underlying concerns” of the Act and that the new language merely “clarified the policy underlying the parole process.” Still, given the disparities between Mickens-Thomas and Finnegan, doubts remained about whether the use of the amended Parole Act violated the Ex Post Facto Clause. The Pennsylvania Supreme Court again addressed the issue in Hall v. Pennsylvania Board of Probation and Parole, 578 Pa. 245, 851 A.2d 859 (2004). This time a plurality of the Court reaffirmed that the use of the 1996 amended criteria does not violate the Ex Post Facto Clause. Chief Justice Cappy dissented in Hall, claiming that the majority had improperly disregarded the U.S. Supreme Court precedents of Garner, 529 U.S. 244, 120 S.Ct. 1362, and Morales, 514 U.S. 499, 115 S.Ct. 1597, which both established that retroactive changes to parole regulations may violate the Ex Post Facto Clause if the practical effect of the change creates a significant risk of increased punishment. 851 A.2d at 865-69 (Cappy, C.J., dissenting). Chief Justice Cappy endorsed an “as applied” analysis of ex post facto challenges to the 1996 Amendments, seeing the inquiry as a “question of proof’ whereby each prisoner must “demonstrate that a violation has occurred, and that he in fact faces a significant risk of an increase in punishment by application of the new policy.” Id. at 869. On February 24, 2005, the Pennsylvania Supreme Court made an about-face along the lines of Chief Justice Cappy’s dissent, and held in Cimaszewski, 868 A.2d at 426-27, that under the U.S. Supreme Court decisions of Morales and Garner, “retroactive changes in the law governing parole may violate the ex post facto clause.” Ci-maszewski dispelled any suggestion that Winklespecht had interpreted the 1996 amendments as making no substantive change in the criteria for parole. Cimasz- ewski also quoted Garner for the proposition that “[w]hen the rule does not by its own terms show a significant risk” of increased incarceration, a petitioner must prove that the rule’s “practical implementation ..." }, { "docid": "17034015", "title": "", "text": "liberty interest in parole, Mulberry is not entitled to due process protections therein. C. Ex Post Facto Clause. The States are prohibited from enacting an ex post facto law. U.S. Const., Art. I, § 10, cl. 1. Mulberry claims the Ex Post Facto Clause precludes application of the change in the Board’s discretionary reconsideration policy because the policy in effect when he committed his crimes allowed for reconsideration of an inmate’s parole two months early. In this regard he cites Jones v. Garner, 164 F.3d 589 (11th Cir.1999). The Supreme Court recently reversed that decision in Garner v. Jones, — U.S. —, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), citing its earlier decision in California Department of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). In Morales, a California statute changed the frequency of reconsideration for parole from every year to up to every three years for prisoners convicted of more than one homicide. Morales, 514 U.S. at 503, 115 S.Ct. 1597. The controlling inquiry was whether retroactive application of the change in California law created “a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Id. at 509, 115 S.Ct. 1597. The Court found the amended law did not modify the statutory punishment imposed for particular offenses nor the standards for determining either the initial date for parole eligibility or an inmate’s suitability for parole. Id. at 507, 115 S.Ct. 1597. Moreover the California Parole Board was vested with the discretion to decrease the frequency with which it reconsidered parole for a limited class, consisting of prisoners convicted of more than one homicide. Id. The Court found there was no ex post facto violation because the sum of these factors illustrated the decrease in the frequency of parole suitability proceedings “ereate[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes.” Id. at 509, 115 S.Ct. 1597. In Garner, the Court examined whether Georgia’s amended parole law, which changed the frequency of required reconsideration hearings for inmates serving life" }, { "docid": "964920", "title": "", "text": "hearings, and the Court said the issue was different. See Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504-08, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). Gamer was similar to Morales, and followed Morales without purporting to change its rationale. See Garner v. Jones, 529 U.S. 244, 250-57, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). The Morales Court distinguished Lindsey, Weaver, and Miller as follows. In Lindsey, “the measure of punishment prescribed by the later statute” was more severe than that of the earlier. Morales, 514 U.S. at 505, 115 S.Ct. 1597 (emphasis added). According to the Morales Court, “Weaver and Miller held that the Ex Post Facto Clause forbids the States to enhance the measure of punishment by altering the substantive ‘formula’ used to calculate the applicable sentencing range.” Id. at 505, 115 S.Ct. 1597 (emphasis added). In contrast, and serving as the basis for distinguishing Lindsey, Weaver, and Miller, the new law in Morales “had no effect on the standards for fixing a prisoner’s initial date of ‘eligibility’ for parole, or for determining his ‘suitability’ for parole and setting his release date.” Id. at 507, 115 S.Ct. 1597 (citations omitted). Rather than changing the sentencing range applicable to covered crimes, the [amendment in Morales ] simply “alters the method to be followed” in fixing a parole release date under identical substantive standards. See Miller, supra, at 433, 107 S.Ct. 2446 (contrasting adjustment to presumptive sentencing range with change in “the method to be followed in determining the appropriate sentence”); see also Dobbert v. Florida, 432 U.S. 282, 293-294, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (contrasting change in the “quantum of punishment” with statute that merely “altered the methods employed in determining whether the death penalty was to be imposed”). Morales, 514 U.S. at 507-08, 115 S.Ct. 1597. The Court in Dobbert, a case relied upon in Morales, explained that the Ex Post Facto Clause was “intended to secure substantial personal rights against arbitrary and oppressive legislation, and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.”" }, { "docid": "14576426", "title": "", "text": "post facto challenge to retroactive application of an amended California Department of Corrections regulation governing parole eligibility. See California Dep’t of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). At the time that Morales committed the crime for which he was incarcerated, the California parole consideration regulations specified that, once an inmate became eligible for an initial parole consideration hearing, if the inmate was denied parole at that time, he or she would be eligible for annual reconsideration. See id. at 503, 115 S.Ct. 1597. Subsequent to Morales’ sentencing, however, the California legislature amended the regulation to authorize the Board of Prison Terms “to defer subsequent suitability hearings for up to three years if the prisoner has been convicted of ‘more than one offense which involves the taking of a life’ and if the Board ‘finds that it is not reasonable to expect that parole would be granted at a hearing during the following [two] years and states the bases for the findings.’” Id. (quoting Cal.Penal Code Ann. § 3041.5(b)(2)(West 1982)). In Morales,' the Supreme Court rejected an expansive reading of the Ex Post Facto Clause as forbidding any and all legislative change having any conceivable risk of affecting a prisoner’s punishment. See id. at 508, 115 S.Ct. 1597. Instead, the Court found it to be “a matter of ‘degree’”»as to which “legislative adjustments ‘will be held to be of sufficient moment to transgress the constitutional prohibition [on ex post facto laws].’” Id. at 509, 115 S.Ct. 1597 (quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). Declining to provide a universal formula for identifying legislative changes that violate the ex post facto prohibition, id., the Court directed that each case be analyzed by asking “whether [the law at issue] produces a sufficient risk of increasing the measure of punishment attached to the covered crimes,” id., and proceeded to apply this standard to the California statute at issue in Morales. First, the Court noted that the regulation as amended applies “only to a class of prisoners for whom the" }, { "docid": "23524084", "title": "", "text": "parole determination. Id. The Court made clear that “[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause” and acknowledged the “danger that legislatures might disfavor certain persons after the fact is present even in the parole context.” Id. at 253, 120 S.Ct. 1362. The Court nonetheless has afforded states some measure of flexibility in making changes to their parole policy, and thus has been “careful ... not to adopt a single formula for identifying which legislative adjustments, in matters bearing on parole, would survive an ex post facto challenge.” Id. at 252, 120 S.Ct. 1362. Informing this flexibility is the Court’s observation that discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised. The idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience. New insights into the accuracy of predictions about the offense and the risk of recidivism consequent upon the offender’s release, along with a complex of other factors, will inform parole decisions. Id. at 253, 120 S.Ct. 1362. Therefore, the Court cautioned that “the Ex Post Facto Clause should not be employed for ‘the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures’ id. at 252, 120 S.Ct. 1362 (quoting Morales, 514 U.S. at 508, 115 S.Ct. 1597), and that “[t]he States must have due flexibility in formulating parole procedures and addressing problems associated with confinement and release.” Id. III. Mickens-Thomas v. Vaughn In Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir.2003), we considered whether the 1996 Amendments to the Pennsylvania Parole Act violated the Ex Post Facto Clause. The petitioner, Louis Mickens-Thomas (“Thomas”), was one of the unusual prisoners who received a commutation of his life sentence, which rendered him eligible for parole in 1996. Of the 266 prisoners whose life sentences had ever been commuted in Pennsylvania, Thomas was the only prisoner not to be granted parole. Thomas petitioned for ha-beas relief arguing that the Parole Board denied him parole based on the 1996 Amendments to" }, { "docid": "23524081", "title": "", "text": "added: Your version of the nature and circumstances of the offense(s) committed. Your refusal to accept responsibility for the offense(s) committed. In 2003, Richardson petitioned for a writ of mandamus in the Commonwealth Court of Pennsylvania, arguing that the parole decisions violated the Ex Post Facto Clause of the United States Constitution. The Commonwealth Court denied mandamus in an unpublished order, and the Pennsylvania Supreme Court affirmed without opinion. Richardson v. Pa. Bd. of Prob. & Parole, 576 Pa. 1, 838 A.2d 650 (2003). Richardson then filed this petition for a writ of habeas corpus in the District Court for the Middle District of Pennsylvania. The Court denied his petition. The Court held that a prisoner carries “the ultimate burden of establishing that the measure of punishment itself has changed,” Garner, 529 U.S. at 255, 120 S.Ct. 1362, and “must show that as applied to his own sentence the law creates a significant risk of increasing his punishment,” Calif. Dep’t of Corr. v. Morales, 514 U.S. 499, 510 n. 6, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). The Court then found that Richardson had failed to establish that the 1996 Amendments affected the Parole Board’s decision. The Court stated that its “review of the documents in this case confirms that there is no language in the Board’s decision implicating the amendments cited in Richardson’s petition, and Richardson has not demonstrated the role which those amendments played in the Board’s decision.” Therefore, the Court denied Richardson’s petition because it concluded that “the Ex Post Facto claim in [Richardson’s habeas petition] is based on speculation and conjecture. Richardson has failed to link the one amended statute cited in connection with his first claim to the Board’s decision.” II. The Ex Post Facto Clause The Ex Post Facto Clause states that “[n]o State shall ... pass any ... ex post facto Law.” U.S. Const, art. I, § 10, cl.l. The Clause applies to a statute or policy change which “alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Morales, 514 U.S. at 506 n. 3, 115" }, { "docid": "19941869", "title": "", "text": "court abused its discretion in granting summary judgment based on the record before it. We conclude that Nolan’s remaining arguments concerning the district court’s procedures lack merit, and we now turn to the substantive issues. III. Constitutional Issues We review a district court’s grant or denial of summary judgment de novo, applying the same standard as the district court. Mayorga v. Mo., 442 F.3d 1128, 1131 (8th Cir.2006). Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Fed.R.Civ.P. 56(c)). A. Ex Post Facto Claims Nolan contends that the Board’s application of Missouri’s changed parole laws to him violated, and violates, the ex post facto clause of the federal Constitution. Specifically, he argues that the Board’s scheduling of his reconsideration hearings at three-year intervals pursuant to section 217.690 of the Missouri Code, instead of at the two-year intervals he was afforded pri- or to the statute’s revision, creates a risk of increasing the length of his incarceration. Taking the facts in the light most favorable to Nolan, we assume that the Board has applied, and is applying, Missouri’s current parole statute to him. The retroactive application of changed parole laws may violate the ex post facto clause if it creates “a sufficient risk of increasing the measure of punishment” for Nolan’s offense from what it was at the time he committed it. Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000) (quoting Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (internal quotation omitted)). Accordingly, we must compare Missouri’s current parole laws with those that were in effect at the time of Nolan’s offense, keeping in mind that not every retroactive procedural change that could affect an inmate’s term of confinement creates a risk of constitutional proportions. “[T]he question is a matter of degree” and must be considered within the context of the entire parole" }, { "docid": "15388887", "title": "", "text": "post facto violation.” Id. at 86; see id. at 76-78. Phillips then filed a motion for reconsideration, which the district court denied. The court first reaffirmed its original rationale for dismissing the complaint. It then held that, even if Phillips were right that the 2000 regulations permitted consideration of offense accountability and the earlier regime did not, he could not show that it was the Commission’s consideration of offense accountability that had lengthened his incarceration, rather than its consideration of his risk to society — a factor available under both regimes. See Sellmon v. Reilly, 561 F.Supp.2d 46, 49-50 (D.D.C.2008) (Sellmon II). This appeal followed. II The Constitution declares that “No ... ex post facto Law shall be passed.” U.S. CONST. art. I, § 9, cl. 3. A “retroactively applied parole ... regulation or guideline violates” this prohibition “if it ‘creates a significant risk of prolonging [an inmate’s] incarceration.’ ” Fletcher, 433 F.3d at 877 (quoting Garner, 529 U.S. at 251, 120 S.Ct. 1362). Sometimes such a risk will be apparent from facial differences between the old and new rule. But “[w]hen the rule does not by its own terms show a significant risk, the [prison er] must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.” Garner, 529 U.S. at 255, 120 S.Ct. 1362; see Fletcher, 433 F.3d at 877. In general, ex post facto claims require a comparison of the challenged scheme to the one in place when the prisoner committed his crimes. See Garner, 529 U.S. at 247, 120 S.Ct. 1362; Cal Dep’t of Corrections v. Morales, 514 U.S. 499, 501-02, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). For Phillips, this would mean looking to the 1972 regulations. Rather than rely on those regulations, however, Phillips argues that the 1987 regulations codified the actual practice of the D.C. Board of Parole when he committed his crimes in 1977, and that they are a better reflection of that practice than the 1972 regulations. Hence," }, { "docid": "19931104", "title": "", "text": "five hearings a one-person board was the prosecutor, judge, and executioner — all in the hands of one board member.... Having one board member during [P]etitioner’s five parole hearings is an ex post facto violation .... Pet. at 41-42 (emphasis in original). These statements appear to correspond to: (1) Petitioner’s conclusion that “ex post facto violations occurred as ‘current’ rules and procedures [were] used against [Petitioner and not the correct rules and procedures of 1985,” as well as to (4) Petitioner’s request for relief seeking an order directing the Parole Board to “conduct [Petitioner’s hearing consistent with 1985 rules, not ‘current’ rules and procedures, [ie., with] two or three examiners.” Id. at 47. The Ex Post Facto Clause of the U.S. Constitution bars only those “enactments, which by retroactive operation, increase the punishment for a crime after its commission.” Gamer v. Jones, 529 U.S. 244, 249-50, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000) (relying on Lynce v. Mathis, 519 U.S. 433, 445-446, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997); Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 508-509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); and Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)). While parole regulations may be laws for purposes of ex post facto analysis, see Royster v. Fauver, 775 F.2d 527, 535 (3d Cir.N.J. 1985) (citing U.S. ex rel. Forman v. McCall, 709 F.2d 852 (3d Cir.1983)), “[t]o be eligible for habeas corpus based on a violation of the Ex Post Facto Clause, a petitioner must show both a retroactive change in law or policy and that this change [in parole law] caused individual disadvantage by creating a significant risk of increasing his punishment.” Richardson v. Pa. Bd. of Prob. & Parole, 423 F.3d 282, 284 (3d Cir.2005) (emphasis removed, internal quotations and citations omitted); see also Mickens-Thomas v. Vaughn, 321 F.3d 374, 384 (3d Cir.2003). It follows that not every retroactive change violates the Ex Post Facto Clause, even if the change creates a risk of affecting a particular inmate’s terms of confinement. See Gamer, 529 U.S. at 250," }, { "docid": "4843827", "title": "", "text": "number of plaintiffs on parole during the pendency of this appeal. Indeed, as of November 2009, three of four quartiles of the plaintiff class had been or were currently going through the review process. II. A. Ex Post Facto Claim Plaintiffs have not shown that they face a significant risk of increased punishment as a result of the challenged statutory changes to Michigan’s parole process rather than as a result of the new Board’s legitimate exercise of discretion in a way that results in fewer paroles. In any event, we are not confident that plaintiffs have even shown a significant risk of increased punishment under the post-1992 parole regime. Accordingly, plaintiffs were not entitled to judgment as a matter of law. The Ex Post Facto Clause is “aimed at laws that ‘retroactively alter the definition of crimes or increase the punish ment for criminal acts.’ ” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (citations omitted). When an inmate challenges an allegedly ex post facto parole law, this court “must examine the relevant law in effect at the time [the inmate’s] offense was committed and compare it with the retroactively-applied version of the law.” Shabazz, 123 F.3d at 912. The “focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of ‘disadvantage,’ ... but on whether [the] change ... increases the penalty by which a crime is punishable.” Morales, 514 U.S. at 506 n. 3, 115 S.Ct. 1597. Where a legislative change is argued to increase the risk of affecting a prisoner’s punishment, the Supreme Court has made clear that the appropriate inquiry is whether the retroactively-applied version of the parole law “produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Id. at 509, 115 S.Ct. 1597. When the retroactively-applied version of the law “does not by its own terms show a significant risk” of increased punishment, the inmate bringing the ex post facto challenge “must demonstrate, by evidence drawn from the [law]’s practical implementation by the" }, { "docid": "23524090", "title": "", "text": "was clear that the 1996 Amendments did not establish a new law or policy. Without a change in law or policy, the Commonwealth claims that the first prong of the ex post facto inquiry is not satisfied. Thus, the Commonwealth asserts that the applicability of Mickens-Thomas is limited to those parole decisions made under the Parole Board’s pre-Wink-lespecht understanding of the 1996 Amendments. Mickens-Thomas did not consider the impact of Winklespecht because Winkles-pecht was handed down in December 2002 — after Thomas’ 1996, 1998, and 2000 denials of parole. In contrast, the Parole Board has twice denied Richardson parole after Winklespecht, in decisions that were ostensibly informed by the Pennsylvania Supreme Court’s holding that there was no substantive change in policy wrought by the 1996 Amendments. Thus, the Commonwealth claims that Mickens-Thomas does not control and that no Ex Post Facto violation has occurred. The Commonwealth, however, ignores subsequent Pennsylvania Supreme Court decisions that undermine its interpretation of Winklespecht. In Finnegan v. Pennsylvania Board of Probation and Parole, 576 Pa. 59, 838 A.2d 684, 688 (2003), a majority of the Pennsylvania Supreme Court reaffirmed that the considerations of public safety and administration of justice “have always been underlying concerns” of the Act and that the new language merely “clarified the policy underlying the parole process.” Still, given the disparities between Mickens-Thomas and Finnegan, doubts remained about whether the use of the amended Parole Act violated the Ex Post Facto Clause. The Pennsylvania Supreme Court again addressed the issue in Hall v. Pennsylvania Board of Probation and Parole, 578 Pa. 245, 851 A.2d 859 (2004). This time a plurality of the Court reaffirmed that the use of the 1996 amended criteria does not violate the Ex Post Facto Clause. Chief Justice Cappy dissented in Hall, claiming that the majority had improperly disregarded the U.S. Supreme Court precedents of Garner, 529 U.S. 244, 120 S.Ct. 1362, and Morales, 514 U.S. 499, 115 S.Ct. 1597, which both established that retroactive changes to parole regulations may violate the Ex Post Facto Clause if the practical effect of the change creates a significant risk of" }, { "docid": "23524085", "title": "", "text": "factors, will inform parole decisions. Id. at 253, 120 S.Ct. 1362. Therefore, the Court cautioned that “the Ex Post Facto Clause should not be employed for ‘the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures’ id. at 252, 120 S.Ct. 1362 (quoting Morales, 514 U.S. at 508, 115 S.Ct. 1597), and that “[t]he States must have due flexibility in formulating parole procedures and addressing problems associated with confinement and release.” Id. III. Mickens-Thomas v. Vaughn In Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir.2003), we considered whether the 1996 Amendments to the Pennsylvania Parole Act violated the Ex Post Facto Clause. The petitioner, Louis Mickens-Thomas (“Thomas”), was one of the unusual prisoners who received a commutation of his life sentence, which rendered him eligible for parole in 1996. Of the 266 prisoners whose life sentences had ever been commuted in Pennsylvania, Thomas was the only prisoner not to be granted parole. Thomas petitioned for ha-beas relief arguing that the Parole Board denied him parole based on the 1996 Amendments to the Parole Act in violation of the Ex Post Facto Clause. The Parole Board argued in Mickens-Thomas (as here) that “the 1996 amendments ... did not change the Board’s standards for determining parole.” 321 F.3d at 384 (alteration in original). We disagreed and found that the “statute unequivocally has been interpreted by the Pennsylvania courts to express broad and general aspirations of Pennsylvania’s parole policy.” Id. (citing Stewart v. Pa. Bd. of Prob. & Parole, 714 A.2d 502, 508 (Pa.Cmwlthl998)). We did not rely on the then-reeently decided case of Winklespecht v. Pennsylvania Board of Probation and Parole, 571 Pa. 685, 813 A.2d 688 (2002), because Winklespecht was decided “after the Board’s actions on Thomas’s parole” and therefore “came too late to alter the Board’s view of the statutory amendment on the outcome of this case.” 321 F.3d at 391 (emphasis in original). In Mickens-Thomas, we held that the question is “not whether the statute on its face pertains to parole decisionmaking, but whether, in practice, the new language has altered the fundament for reviewing" }, { "docid": "17034014", "title": "", "text": "Cir.1979). A state law only creates a federally protected liberty interest if it places substantive limitations on official discretion. Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 462, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). This is the case where the state law gives specific directives to the decision maker that if “substantive predicates are present, a particular outcome must follow....” Id. Where, however, as in Colorado, a state law gives prison officials discretion to deny an inmate’s request “for any constitutionally permissible reason or for no reason at all ... the State has not created a constitutionally protected liberty interest.” Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (further quotation omitted); see also Milligan v. Colorado Department of Corrections, 751 P.2d 75, 76 (Colo.App.1988) (holding because inmate classification decisions were within the discretion of Department of Corrections officials, defendant’s particular classification implicated no liberty interest protected by the Fourteenth Amendment due process clause). In sum, because Colorado’s discretionary parole scheme does not create an entitlement to a liberty interest in parole, Mulberry is not entitled to due process protections therein. C. Ex Post Facto Clause. The States are prohibited from enacting an ex post facto law. U.S. Const., Art. I, § 10, cl. 1. Mulberry claims the Ex Post Facto Clause precludes application of the change in the Board’s discretionary reconsideration policy because the policy in effect when he committed his crimes allowed for reconsideration of an inmate’s parole two months early. In this regard he cites Jones v. Garner, 164 F.3d 589 (11th Cir.1999). The Supreme Court recently reversed that decision in Garner v. Jones, — U.S. —, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), citing its earlier decision in California Department of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). In Morales, a California statute changed the frequency of reconsideration for parole from every year to up to every three years for prisoners convicted of more than one homicide. Morales, 514 U.S. at 503, 115 S.Ct. 1597. The controlling inquiry was whether retroactive application of" }, { "docid": "964907", "title": "", "text": "Eleventh Circuit Court of Appeals held that retroactive application of the new parole guideline seemed “certain to ensure that some number of inmates will find the length of their incarceration extended.” Garner, 529 U.S. at 249, 120 S.Ct. 1362 (citation and quotation marks omitted). The Supreme Court reversed and remanded, holding that “[t]he record before the Court of Appeals contained little information bearing on the level of risk created by the change in law.” Id. at 256, 120 S.Ct. 1362. Without evidence of an actual disadvantage to the inmate (or at least general information regarding the operation of the parole system), the Supreme Court was unwilling to hold that the Ex Post Facto Clause was violated. Id.; see also Morales, 514 U.S. at 508-09, 115 S.Ct. 1597 (rejecting the proposition that all changes that might “create some speculative, attenuated risk of affecting a prisoner’s actual term of confinement by making it more difficult for him to make a persuasive case for early release” constitute ex post facto violations). The Third Circuit’s decision in Richardson, 423 F.3d at 291-94, demonstrates the necessity of evidence in performing the “significant risk” inquiry. In Richardson, an inmate convicted in 1984 argued that the retroactive application of parole amendments enacted in 1996 constituted an ex post facto violation. Id. at 284. The inmate demonstrated that the parole board did in fact apply the amendments retroactively, but the court held that he was required to show that the retroactive application individually prejudiced him. Id. at 292-93. Although the Richardson court acknowledged “the intuitive force of the argument that adjudication under stricter standards is more likely to lead to an adverse result,” it held that the “evidentiary requirement of jurisprudence must be honored.” Id. at 292. The court distinguished Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir.2003), an earlier Third Circuit case in which the panel granted habeas in light of statistical evidence suggesting that the retroactive application of parole guidelines increased the inmate’s period of incarceration. Id. In other words, without actual evidence demonstrating that Richardson was subject to an increased risk of incarceration, the court" }, { "docid": "2643858", "title": "", "text": "Dep’t of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (internal quotations and citations omitted). Two critical elements must be present for a law to fall within the ex post facto prohibition: “first, the law must be retrospective, that is, it must apply to events occurring before its enactment; and second, it must disadvantage the offender affected by it.” Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (internal quotations and citations omitted). The Supreme Court has rejected the argument “that the Ex Post Facto Clause forbids any legislative change that has any conceivable risk of affecting a prisoner’s punishment.” Morales, 514 U.S. at 508, 115 S.Ct. 1597. The Ex Post Facto Clause was never intended to result in judicial “micromanagement of an endless array of legislative adjustments to parole and sentencing procedures.... ” Id. Instead, the Court has consistently held that “the question of what legislative adjustments will be held to be of sufficient moment to transgress the constitutional prohibition must be a matter of degree.” Id. at 509, 115 S.Ct. 1597 (internal quota tions and citations omitted, emphasis in original). “Retroactive changes in laws governing parole of prisoners, in some instances, may be violative” of the prohibition against ex post facto laws, Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), but the controlling inquiry is not whether the law is retroactive, but “whether it produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Morales, 514 U.S. at 509, 115 S.Ct. 1597 (footnote omitted); see also Lynce v. Mathis, 519 U.S. 433, 444, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). When the amendment creates only “the most speculative and attenuated possibility” of increasing the measure of punishment, it is “insufficient under any threshold” to violate the Ex Post Facto Clause. Morales, 514 U.S. at 509, 115 S.Ct. 1597. While the Supreme Court has not set forth any single formula for identifying whether a specific law violates the ex post facto prohibition, the Morales Court did identify" }, { "docid": "14025526", "title": "", "text": "29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). Plaintiffs move for summary judgment on the grounds that the 1997 amendments violate the Ex Post Facto Clause. Defendants do not dispute that the 1997 amendments are a change in the law which has been given retrospective effect. Rather, Defendants move for summary judgment on the grounds that Plaintiffs are not disadvantaged by the change. Specifically, Defendants argue that Plaintiffs have failed to show that the 1997 amendments have created a significant risk of increasing the measure of punishment for life-sentenced inmates as a class, and that Plaintiffs have failed to show individual disadvantage by application of the 1997 amendments. For the following reasons, I will grant Defendants’ motion for summary judgment with regard to Plaintiffs’ ex post facto claim concerning the inclusion of a crime victim on the Board and I will grant Plaintiffs’ motion for summary judgment with regard to Plaintiffs’ ex post facto claim concerning the change in voting requirements. a. Disadvantaged by the Change The mere application of the 1997 amendments is not a per se violation of the Ex Post Facto Clause, and it is not sufficient for Plaintiffs to show that the Board will rely on the new law. Rather, Plaintiffs must also adduce some evidence that this new law disadvantages those life sentenced prisoners to which the 1997 amendments will be applied by creating “a significant risk of increasing [their] sentences.” Garner v. Jones, 529 U.S. 244, 255, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). Further, the Supreme Court has cautioned that “the Ex Post Facto Clause should not be employed for ‘the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures.’” Garner, 529 U.S. at 252, 120 S.Ct. 1362 (quoting Morales, 514 U.S. at 508, 115 S.Ct. 1597). Rather, “the States must have due flexibility in formulating parole procedures and addressing problems associated with confinement and release.” Id. Therefore, to violate the Ex Post Facto Clause a retroactive change in the law must create more than a “speculative and attenuated possibility of ... increasing the measure of punishment....” Morales, 514" } ]

[ { "docid": "21667990", "title": "", "text": "identified a case since In re Kennedy where the Sixth Circuit cited Wheeler favorably or even used a separate test for “malicious” outside the test it articulated in In re Markowitz. See In re Brown, 489 Fed.Appx. 890, 895 (6th Cir. 2012) (to find “willful and malicious injury,” the Bankruptcy Court must determine whether the debtor “(1) intended to cause injury to the Creditor or the Creditor’s property, or (2) engaged in an intentional act from which the Debtor believed injury would be substantially certain to result”) (quoting In re Sweeney, 264 B.R. 866, 871 (Bankr. W.D. Ky. 2001)); In re Musilli, 379 Fed.Appx. 494, 498 (6th Cir. 2010) (“For the discharge exception under § 523(a)(6) to apply, a debtor must: (1) ‘will or desire harm[;]’ or (2) ‘believe injury is substantially certain to occur as a result of his behavior.”) (quoting In re Markowitz, 190 F.3d at 465 n.10); Sanderson Farms, Inc. v. Gasbarro, 299 Fed.Appx. 499, 504 (6th Cir. 2008) (same); McGee v. Marcum, 184 Fed.Appx. 464, 467 (6th Cir. 2006) (applying the standard from In re Markowitz); In re Best, 109 Fed.Appx. 1, 5 (6th Cir. 2004) (“[Ujnless the actor desires to cause [the] consequences of his act, or ... believes that the consequences are substantially certain to result from it, he has not committed a willful and malicious injury as defined under § 523(a)(6)”) (quoting In re Kennedy, 249 F.3d at 580); In re Romano, 59 Fed.Appx. 709, 715 (6th Cir. 2003) (“The Sixth Circuit has interpreted [§ 523(a)(6)] to mean that the debtor must have desired to cause the consequences of her act, or believed that the consequences are substantially certain to result from it.”) (citing In re Markowitz, 190 F.3d at 464). From the post-In re Markowitz cases, the Sixth Circuit has appeared to apply one single test for whether an injury was “willful and malicious” rather than considering “willful” and “malicious” as separate elements. This approach is consistent with the Supreme Court’s holding in Geiger, which considered the scope of the “willful and malicious injury” exception of § 523(a)(6). 523 U.S. at 61," } ]

[ { "docid": "13433229", "title": "", "text": "by the Debtor to another entity or to the property of another entity.” The United States Supreme Court recently articulated the standard for determining such an injury in Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). The Court held that to except a debt from discharge under § 523(a)(6), the Debtor must have engaged in a “deliberate and intentional injury.” Id. at 61, 118 S.Ct. 974. “Only acts done with the intent to cause injury — and not merely acts done intentionally — can cause willful and malicious injury.” Markowitz v. Campbell (In re Markowitz), 190 F.3d at 455, 463 (6th Cir.1999); Geiger, 523 U.S. at 61, 118 S.Ct. 974; Abbo v. Rossi McCreery & Assocs., Inc. (In re Abbo), 168 F.3d 930 (6th Cir.1999); Salem Bend Condo. Ass’n v. Bullock-Williams (In re Bullock-Williams), 220 B.R. 345 (6th Cir. BAP 1998). The Debtor must have intended the consequences of the act, not merely the act itself. Geiger, 523 U.S. at 61, 118 S.Ct. 974. Since Geiger, courts have split over whether willful and malicious injury is established solely by proving intentional injury, or whether “willful” requires a finding of intentional injury and “malicious” requires that the act be without just cause or excuse. See Mitsubishi Motors Credit of America, Inc. v. Longley (In re Longley), 235 B.R. 651, 656 n. 5 (10th Cir. BAP 1999) and cases cited therein. A number of courts have adopted an integrated test, holding that an injury is willful and malicious if the Debtor intended to cause harm or if there is an objective substantial certainty that his or her actions will lead to injury. Miller v. J.D. Abrams, Inc. (In re Miller), 156 F.3d 598, 606 (5th Cir.1998); Harry Ritchie’s Jewelers, Inc. v. Chlebowski (In re Chlebowski), 246 B.R. 639, 645 (Bankr.D.Or.2000). Other courts have adopted the Miller or Markowitz test to prove “willful,” but require a separate test for the “malicious” prong. See Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1208-09 (9th Cir.2001) (adopts Markowitz test for “willful” prong, but also requires that the injury be" }, { "docid": "2064823", "title": "", "text": "by the Debtor to them regarding payment of the debts incurred by the Debtor with the Plaintiffs. b. Section 523(a) (6) The Plaintiffs next assert that the Debtor’s debts to them are non-discharge-able under § 523(a)(6). Section 523(a)(6) excepts from discharge any debt for a “willful and malicious injury by the debtor to another entity or to the property of another entity.” The elements of nondis-chargeability under § 523(a)(6) are (i) desire to cause the consequences of the act or belief that the consequences are substantially certain to result (willful); and (ii) no just cause or excuse (malicious). Kennedy v. Mustaine (In re Kennedy), 249 F.3d 576, 580 (6th Cir.2001) (citations omitted). Non-dischargeability of a debt under § 523(a)(6) “takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90, (1998). The Sixth Circuit Court of Appeals broadened this holding, relying on the Geiger court’s reference to the Restatement (Second) of Torts § 8A, to hold “that unless ‘the actor desires to cause the consequences of his act, or ... believes that the consequences are substantially certain to result from it,’ he has not committed a ‘willful and malicious injury’ as defined under § 523(a)(6).” Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 464 (6th Cir.1999) (quoting Restatement (Second) of Torts § 8A, at 15 (1964)). Generally, actions under § 523(a)(6) look for an intentional tort as the basis for the debt. See Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (“[T]he [5231(a)(6) formulation triggers in the lawyer’s mind the category of ‘intentional torts,’ as distinguished from negligent or reckless torts.”) (citation omitted). The Plaintiffs argue that their entire debts are non-dischargeable under § 523(a)(6). In support, they primarily emphasize the Debtor’s failure to comply with the December Letters, which they characterize as an act of conversion of the 401(k) proceeds and the Investment Accounts proceeds. The Debtor argues that her conduct does not constitute a willful and malicious injury under § 523(a)(6) because," }, { "docid": "8520649", "title": "", "text": "of Joyce J. Brown. See certified copy of Judgment Entry attached to Snow’s motion for summary judgment as Exhibit A. Brown filed motions for judgment notwithstanding the verdict, new trial, and judgment on the pleadings. The state trial court denied each of these motions. Brown then appealed the judgment to the Franklin County Court of Appeals. On September 26, 2000, the court of appeals affirmed the judgment. Title 11, United States Code, Section 523(a)(6) excepts from discharge any debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” As used here, the word “willful” modifies the word “injury” and connotes a deliberate or intentional injury. Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Following Geiger, the Sixth Circuit adopted for purposes of § 523(a)(6) the Restatement (Second) of Torts’ definition of intentional torts. Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 464 (6th Cir.1999). Thus, “unless ‘the actor desires to cause consequences of his act, or ... believes that the consequences are substantially certain to result from it,’ he has not committed a willful and malicious injury as defined under § 523(a)(6).” Id. (quoting Restatement (Second) of Torts § 8A, at 15 (1964)). Snow argues that under principles of collateral estoppel, the jury’s verdict and resulting judgment against Brown should be given preclusive effect. He emphasizes the state court’s instruction to the jury during its deliberation that it could not render a verdict in favor of Snow unless it found by the greater weight of the evidence that Brown caused the death of Joyce J. Brown by means of strangulation. See certified copy of jury’s question and Judge Thompson’s response attached to Snow’s motion as Exhibit B. Ohio'law requires Snow to establish the following elements for collateral estoppel to apply: 1. A final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; 2. The issue must have been actually and directly litigated in the prior suit and must have been necessary to the final judgment. 3." }, { "docid": "13433231", "title": "", "text": "wrongful, intentional and without just cause or excuse to satisfy “malicious” prong). The Sixth Circuit has adopted an integrated test, but a more subjective one than the Fifth Circuit did in Miller. Markowitz, 190 F.3d at 464. In this Circuit, under Markowitz, the Creditor must demonstrate that the Debtor either (1) intended to cause injury to the Creditor or to the Creditor’s property, or (2) engaged in an intentional act from which the Debtor believed injury would be substantially certain to result. 190 F.3d at 464. The Sixth Circuit recently reasserted the Markowitz test in affirming a decision by this Court excepting a debt from discharge under § 523(a)(6). Kennedy v. Mustaine (In re Kennedy), 249 F.3d 576 (6th Cir.2001). See also Avco Fin. Serv. v. Kidd (In re Kidd), 219 B.R. 278, 285 (Bankr.D.Mont.1998) (adopting same subjective test as Markowitz). In support of its position, Plaintiff has cited a number of pre-Geiger § 523(a)(6) cases in which the Debtor had disposed of or converted a Creditor’s collateral. See Vulcan Coals, Inc. v. Howard, 946 F.2d 1226 (6th Cir.1991); Thorp Fin. Serv. v. Thomas (In re Thomas), 36 B.R. 851 (Bankr.W.D.Ky.1984); Sunamerica Fin. Corp. v. Stephens (In re Stephens), 26 B.R. 389 (Bankr.W.D.Ky.1983). Plaintiff asserts that Geiger and Markowitz may not apply, as the facts in those cases are different from the present case. This position is incorrect. Geiger and Markowitz apply to all cases under § 523(a)(6) in the Sixth Circuit. Although Geiger addressed § 523(a)(6) in the context of a medical malpractice case, and held only that debts arising from recklessly and negligently inflicted injuries are not willful and malicious, the Supreme Court cited with approval two of its previous decisions that did address the conversion of a Creditor’s property. 523 U.S. at 63-64, 118 S.Ct. 974, citing McIntyre v. Kavanaugh, 242 U.S. 138, 37 S.Ct. 38, 61 L.Ed. 205 (1916) and Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934). The Court made clear in referencing these cases that to find a conversion non-dischargeable, there must be an intentional injury. Further," }, { "docid": "4396668", "title": "", "text": "appellate court’s findings barred the relitigation of the willful and malicious injury requirement of § 523(a)(6). II. DISCUSSION A. Standard of Review This court reviews a bankruptcy court’s conclusions of law de novo. Killebrew v. Brewer (In re Killebrew), 888 F.2d 1516, 1519 (5th Cir.1989). “A bankruptcy court’s decision to give preclusive effect to a state court judgment is a question of law that we review de novo.” Gober v. Terra + Corp. (In re Gober), 100 F.3d 1195, 1201 (5th Cir.1996); accord Schwager v. Fallas (In re Schwager), 121 F.3d 177, 181 (5th Cir.1997). B. Analysis Section 523(a)(6) of the Bankruptcy Code excepts from discharge any debt incurred for willful and malicious injury by the debtor to another entity. 11 U.S.C. § 523(a)(6) (2004). Section 523(a)(6) of the Bankruptcy Code specifically provides: § 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... (6) for willful and malicious injury by the debtor to another entity or to the property of another entity.... Id. The Supreme Court, in Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998), stated that “[t]he word “willful’ in (a)(6) modifies the word ‘injury,’ indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” The Fifth Circuit extended Kawaauhau’s reasoning in Miller v. J.D. Abrams Inc. (In re Miller), 156 F.3d 598, 603 (5th Cir.1998), and stated that “either objective substantial certainty [of injury] or subjective motive [to injure] meets the Supreme Court’s definition of ‘willful ... injury’ in § 523(a)(6).” (third alteration in original). The court in Miller went on to define the word “malicious” and specifically rejected that it meant an act without just cause or excuse. Id. at 605. Instead, the court defined “malicious” as an act done with the actual intent to cause injury. Id. at 606. The court noted that this definition is synonymous with the definition of “willful” and thus aggregated “willful and malicious” into a unitary concept." }, { "docid": "21667989", "title": "", "text": "a “willful and malicious injury” only covers “acts done with the actual intent to cause injury .... ” Geiger, 523 U.S. at 61, 118 S.Ct. 974. In 1999, the Sixth Circuit applied Gieger in In re Markowitz, stating that “the judgment must be for an injury that is both willful and malicious. The absence of one creates a dischargeable debt.” In re Markowitz, 190 F.3d at 463. It held that unless “the actor desires to cause consequences of his act, or ... believes that the consequences are substantially certain to result from it, ... he has not committed a ‘willful and malicious injury' as defined under § 523(a)(6).” Id. at 464 (citing Restatement (2d) of Torts § 8A, at 15 (1964)). In 2001, Sixth Circuit explicitly stated that Geiger overruled both Perkins and Wheeler, although it did not state whether it only overturned the definition of “willful” in both opinions or if it also overturned the definition of “malicious” in Wheeler. In re Kennedy, 249 F.3d 576, 580 (6th Cir. 2001). The parties have not identified a case since In re Kennedy where the Sixth Circuit cited Wheeler favorably or even used a separate test for “malicious” outside the test it articulated in In re Markowitz. See In re Brown, 489 Fed.Appx. 890, 895 (6th Cir. 2012) (to find “willful and malicious injury,” the Bankruptcy Court must determine whether the debtor “(1) intended to cause injury to the Creditor or the Creditor’s property, or (2) engaged in an intentional act from which the Debtor believed injury would be substantially certain to result”) (quoting In re Sweeney, 264 B.R. 866, 871 (Bankr. W.D. Ky. 2001)); In re Musilli, 379 Fed.Appx. 494, 498 (6th Cir. 2010) (“For the discharge exception under § 523(a)(6) to apply, a debtor must: (1) ‘will or desire harm[;]’ or (2) ‘believe injury is substantially certain to occur as a result of his behavior.”) (quoting In re Markowitz, 190 F.3d at 465 n.10); Sanderson Farms, Inc. v. Gasbarro, 299 Fed.Appx. 499, 504 (6th Cir. 2008) (same); McGee v. Marcum, 184 Fed.Appx. 464, 467 (6th Cir. 2006) (applying the" }, { "docid": "17517872", "title": "", "text": "by showing that he entrusted his property to the debtor, the debtor appropriated the property for a use other than that for which it was entrusted, and the circumstances indicate fraud.”); In re Sokol, 170 B.R. 556, 560 (Bankr.S.D.N.Y.1994); cf. Coburn Co. v. Nicholas, 956 F.2d 110, 111 (5th Cir.1992) (requiring an intent to defraud for a determination of whether there has been a breach of a fiduciary relationship under § 523(a)(4)). The jury’s finding that Miller acted wrongfully in misappropriating or misusing Abrams’s proprietary information does not include a finding of fraudulent intent. One can wrongfully appropriate a trade secret while acting under an erroneous belief of entitlement. The question to the jury did not decide intent. Nor did the judgment entered on the verdict since intent was not essential to the judgement. Without such a finding by the state courts, there is no preclusion. IV Under the Bankruptcy Code, a debtor may not be discharged from any debt “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). Although we will ultimately conclude that under recent Supreme Court precedent, “willful and malicious injury” is a unitary concept entailing a single two-pronged test, courts have previously analyzed “willful” and “malicious” separately. We thus consider them here in ton. A. The Supreme Court recently answered the “pivotal question” of whether § 523(a)(6) covers “acts, done intentionally, that cause injury ... or only acts done with the actual intent to cause injury.” Kawaauhau v. Geiger, - U.S. --, -, 118 S.Ct. 974, 977, 140 L.Ed.2d 90 (1998). The Court’s conclusion was that “[t]he word ‘willful’ in (a)(6) modifies the word ‘injury,’ indicating that nondisehargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Id. This conclusion was similar to one that the Fifth Circuit had reached in analyzing § 523(a)(6). In Corley v. Delaney (In re Delaney), 97 F.3d 800 (5th Cir.1996), this court reaffirmed its earlier holding that “for willfulness and malice to prevent discharge under § 523(a)(6), the debtor" }, { "docid": "19303134", "title": "", "text": "in (a)(6) modifies the word ‘injury,’ indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61-63, 118 S.Ct. 974, 977, 140 L.Ed.2d 90 (1998). The Court went on to observe that (a)(6) calls to mind intentional torts, as opposed to negligent or reckless ones. Id. Since the Geiger ruling, bankruptcy and appellate courts have struggled to apply it to cases in which the debtor has committed a deliberate act, known to be injurious, but without a subjective intention to cause harm. In this case, the question is whether conversion of collateral for the primary purpose of raising cash for other creditors can constitute a “willful and malicious” injury to the secured party’s property under § 523(a)(6). In Miller v. J.D. Abrams, Inc. (In re Miller), 156 F.3d 598 (5th Cir.1998), the Court of Appeals for the Fifth Circuit held that the debtor’s misappropriation of plaintiffs trade secrets was excepted from discharge under § 523(a)(6). Addressing Geiger, the Court points out that, having removed negligence and recklessness from the ambit of § 523(a)(6), the Supreme Court left three possible readings: The standard might be met by any tort generally classified as an intentional tort, by any tort substantially certain to result in injury, or any tort motivated by a desire to inflict injury. In re Miller, 156 F.3d at 603. The Court rejected the first test, noting that “the label ‘intentional tort’ is too elusive to sort intentional acts that lead to injury from acts intended to cause injury.” Id. The court concluded that the two remaining tests are both pertinent, and that “an injury is “willful and malicious’ where there is either an objective substantial certainty of harm or a subjective motive to cause harm.” Miller, 156 F.3d at 606. See also In re Markowitz, 190 F.3d 455 (6th Cir.1999) (Claim not discharged if debtor desired to cause consequences of action, or believed that the consequences were substantially certain to result from his actions.) The effect of the holding in Miller is to" }, { "docid": "21667993", "title": "", "text": "element. Admittedly, the Bankruptcy Court’s application of Wheeler’s definition of “malicious” is reasonable. In re Markowitz, which implemented Geiger in the Sixth Circuit’s jurisprudence, explicitly held that “willful” and “malicious” are separate and distinct elements with different tests. In re Markowitz, 190 F.3d at 463. This approach is consistent with the approach adopted by the United States Courts of Appeals for the Eighth and Ninth Circuits. See In re Barboza, 545 F.3d 702, 711 (9th Cir. 2008) (citing In re Su, 290 F.3d 1140, 1146-47 (9th Cir. 2002)); In re Porter, 375 B.R. 822, 827 (8th Cir. BAP 2007) (citing Johnson v. Miera, 926 F.2d 741, 743 (8th Cir. 1991)). However, as In re Markowitz and subsequent cases held that the debtor must (1) will or desire harm, or (2) believe injury is substantially certain to occur as a result of his behavior, that is the standard that the Court applies today. B. The Application Although the Bankruptcy Court followed its precedent and applied the incorrect standard, its factual findings are sufficient for the Court to determine that David Berge cause a willful and malicious injury to MarketGraphics under § 523(a)(6). The Bankruptcy Court found that “MarketGraphics has failed to show that [David Berge] acted with the desire to harm MarketGraphics or that he believed injury was substantially certain.” This finding is not in dear error. MarketGraph-ics argues that the Bankruptcy Court applied a “just cause or excuse” exception to § 523(a)(6), but. that language is nowhere in the Bankruptcy. Court’s opinion. Rather, David Berge did not intend to cause injury as required by Geiger, In re Markowitz, and all subsequent opinions, Thus, the Bankruptcy Court’s factual determination is not in clear error, and its holding is affirmed. The Court must still remand this case to the Bankruptcy Court to determine the matter of issue preclusion on first impression. In its prior issue preclusion decision, the Bankruptcy Court held that the “debtor concedes that the District Court judgment is entitled to collateral estoppel as to the elements of 11 U.S.C. §. 523(a)(6) with the exception of malice.” MarketGraphics v. Berge" }, { "docid": "21181278", "title": "", "text": "injury to another entity or the property of another entity.” 11 U.S.C. § 523(a)(6). Conversion, in Kentucky the wrongful exercise of dominion and control over the property of another, may be considered a willful and malicious injury. Call Federal Credit Union v. Sweeney (In re Sweeney), 264 B.R. 866 (Bankr.W.D.Ky.2001). The standard for determining such an injury has been articulated by the United States Supreme Court in Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Only a debt resulting from a “deliberate and intentional injury” will be excepted from discharge under section 523(a)(6). Id. at 61, 118 S.Ct. at 977. Further, “[o]nly acts done with the intent to cause injury-and not merely acts done intentionally-can cause willful and malicious injury.” In re Markowitz, 190 F.3d 455, 464 (6th Cir.1999). The Markowitz court went on to say that “unless the actor desires to cause the consequences of his act, or ... believes that the consequences are substantial certain to result from it, he has not committed a willful and malicious injury as defined under § 523(a)(6).” Id. at 464 (internal citation and quotation omitted). As to how the “willful” and “malicious” prongs of section 523(a)(6) are to be treated: The Sixth Circuit has adopted an integrated test.... In this Circuit, under Markowitz, the creditor must demonstrate that the Debtor either (1) intend ed to cause injury to the Creditor or to the Creditor’s property, or (2) engaged in an intentional act from which the Debtor believed injury would be substantially certain to result.... [M]any courts have determined, post Geiger, that the conversion of a secured Creditor’s collateral is willful and malicious when the facts establish that the Debtor had the requisite intent (whether objective or subjective) to injure the Creditor. Following Geiger and Markowitz, courts in the Circuit have likewise found debts non-dischargeable where the Debtor has converted a secured creditor’s collateral with either an intent to cause injury or where the Debtor believed there was a substantial certainty of injury.... Since a Debtor in a § 523(a)(6) case is unlikely to admit that he or" }, { "docid": "4396669", "title": "", "text": "the property of another entity.... Id. The Supreme Court, in Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998), stated that “[t]he word “willful’ in (a)(6) modifies the word ‘injury,’ indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” The Fifth Circuit extended Kawaauhau’s reasoning in Miller v. J.D. Abrams Inc. (In re Miller), 156 F.3d 598, 603 (5th Cir.1998), and stated that “either objective substantial certainty [of injury] or subjective motive [to injure] meets the Supreme Court’s definition of ‘willful ... injury’ in § 523(a)(6).” (third alteration in original). The court in Miller went on to define the word “malicious” and specifically rejected that it meant an act without just cause or excuse. Id. at 605. Instead, the court defined “malicious” as an act done with the actual intent to cause injury. Id. at 606. The court noted that this definition is synonymous with the definition of “willful” and thus aggregated “willful and malicious” into a unitary concept. Thus, the court held that “an injury is ‘willful and malicious’ where there is either an objective substantial certainty of harm or a subjective motive to cause harm.” Id. at 606; see also Williams v. IBEW Local 520 (In re Williams), 337 F.3d 504, 509 (5th Cir.2003). To prevail under § 523(a)(6), a creditor must prove by a preponderance of the evidence that the debt is not dis-chargeable. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The Supreme Court has held that collateral estoppel (issue preclusion) principles apply in bankruptcy dischargeability proceedings. Id. at 285, 111 S.Ct. 654. Accordingly, “[i]n such proceedings, ‘[p]arties may invoke collateral estoppel in certain circumstances to bar relitigation of issues relevant to dischargeability....’” Schwager, 121 F.3d at 181 (second alteration in original) (quoting Gober, 100 F.3d at 1201). Thus, collateral estoppel can provide an alternative basis to satisfy the elements of § 523(a)(6). When giving preclusive effect to a state court judgment, this court must apply the issue preclusion rules of that state. Miller," }, { "docid": "21667992", "title": "", "text": "118 S.Ct. 974. The Supreme Court did not state that it was only considering the “willful” element of the exception; it repeatedly stated that it was defining a “willful and malicious injury.” Id at 61, 118 S.Ct. 974 (“We confront this pivotal question concerning the scope of the ‘willful and malicious injury exception .... ”), 63 (discussing another case that examined “willful and malicious injuries to the person or property of another.”), and 64 (“Negligent or reckless acts, the Court held, do not suffice to establish that a resulting injury is ‘willful and malicious.”). The United States Court of Appeals for the Fifth Circuit agreed, and held that “willful and malicious” is a “unitary concept,” defined as “acts done with the actual intent to cause injury.” In re Miller, 156 F.3d 598, 606 (5th Cir. 1998) (quoting Geiger, 523 U.S. at 58, 118 S.Ct. 974). The Court believes the Sixth Circuit’s approach is consistent with Geiger and the Fifth Circuit’s, and the In re Markowitz test analyzes “willful and malicious” rather than only the “willful” element. Admittedly, the Bankruptcy Court’s application of Wheeler’s definition of “malicious” is reasonable. In re Markowitz, which implemented Geiger in the Sixth Circuit’s jurisprudence, explicitly held that “willful” and “malicious” are separate and distinct elements with different tests. In re Markowitz, 190 F.3d at 463. This approach is consistent with the approach adopted by the United States Courts of Appeals for the Eighth and Ninth Circuits. See In re Barboza, 545 F.3d 702, 711 (9th Cir. 2008) (citing In re Su, 290 F.3d 1140, 1146-47 (9th Cir. 2002)); In re Porter, 375 B.R. 822, 827 (8th Cir. BAP 2007) (citing Johnson v. Miera, 926 F.2d 741, 743 (8th Cir. 1991)). However, as In re Markowitz and subsequent cases held that the debtor must (1) will or desire harm, or (2) believe injury is substantially certain to occur as a result of his behavior, that is the standard that the Court applies today. B. The Application Although the Bankruptcy Court followed its precedent and applied the incorrect standard, its factual findings are sufficient for the Court" }, { "docid": "94547", "title": "", "text": "8A (1964), cited in Geiger, 523 U.S. at 61-62, 118 S.Ct. 974. This definition has been adopted by a number of circuit courts. In Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1208 (9th Cir.), cert. denied, 121 S.Ct. 2552 (2001), the Ninth Circuit held that the willful injury requirement of § 523(a)(6) is met when it is shown either that the debtor had a subjective motive to inflict the injury or that the debtor believed that injury was substantially certain to occur as a result of his conduct. We believe that this holding comports with the ... bankruptcy law’s fundamental policy of granting discharges only to the honest but unfortunate debtor. The Fifth and Sixth Circuits have adopted similar approaches. The Fifth Circuit has held Geiger to be satisfied where “the debtor intentionally took action that necessarily caused, or was substantially certain to cause, the injury.” Miller v. J.D. Abrams, Inc. (In re Miller), 156 F.3d 598, 604 (5th Cir.1998). Under this approach an injury is “willful” under § 523(a)(6) if the debtor’s motive was to inflict the injury, or the debtor’s act was substantially certain to result in injury. See id. The Sixth Circuit has also held that a debtor must will or desire the harm, or believe that injury is substantially certain to occur as a result of his behavior before a resulting debt will be excepted from discharge under § 523(a)(6). Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 465 (6th Cir.1999). Further, in Geiger, the Supreme Court affirmed an Eighth Circuit decision holding that the willfulness requirement was satisfied if the debtor “believed that it was substantially certain that [the creditor] would suffer harm.” Geiger v. Kawaauhau (In re Geiger), 113 F.3d 848, 852-53 (8th Cir.1997), aff'd 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Defining the scope of intent in this way has the virtue of achieving the proper balance between the competing policy considerations underlying the Bankruptcy Code. The honest debtor is permitted a fresh start and at the same time creditors are protected from the discharge of debts" }, { "docid": "12927968", "title": "", "text": "debts, however, “are not confined to physical damage or destruction; an injury to intangible personal or property rights is sufficient.” 4 COLLIER ON BANKRUPTCY, ¶523.12[4] (Alan N. Resnick & Henry J. Sommer eds., 15th ed. Rev.). There is still a controversy over whether debts for injury solely to a creditor’s economic interest are within section 523(a)(6)’s scope. Compare In re Leist, 398 B.R. at 604-05, with In re Livingston, 379 B.R. 711, 719-20 (Bankr. W.D.Mich.2007). For purposes of section 523(a)(6), “willful” means intent to cause injury, not simply intentional conduct that results in injury. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 977, 140 L.Ed.2d 90 (1998). Although the Supreme Court made clear in Geiger that negligently or recklessly inflicted injuries are outside the scope of section 523(a)(6), it has not articulated the state of mind necessary to demonstrate the intent to cause injury. “Post-Geiger decisions have generally found that a creditor can demonstrate the requisite intent by showing that either the debtor subjectively intended to injure the creditor or knew the injury was substantially certain to result from his or her act.” Susan V. Kelley, GINSBERG & MARTIN ON BANKRUPTCY § 11.06[1] (5th ed.2008) (citing among others In re Markowitz, 190 F.3d 455 (6th Cir.1999); State of Texas v. Walker, 142 F.3d 813 (5th Cir.1998); In re Miller, 156 F.3d 598 (5th Cir.1998); In re Su, 259 B.R. 909 (9th Cir.BAP 2001); In re Scarpello, 272 B.R. 691 (Bankr.N.D.Ill.2002)). An action is considered “malicious” if it is taken “in conscious disregard of one’s duties without just cause or excuse.” In re Thirtyacre, 36 F.3d 697, 700 (7th Cir.1994) (citation omitted), “The test for maliciousness under § 523(a)(6) is (1) a wrongful act, (2) done intentionally, (3) which causes injury to the creditor, and (4) done without just cause and excuse.” Basel-Johnson, 366 B.R. at 850 (citing Paul, 266 B.R. at 696). In this matter, the Complaint contains allegations plausibly suggesting a debt for willful and malicious injury at least with respect to the conversion of the portion of Zamora’s wages to pay premiums for then nonexistent health" }, { "docid": "13433230", "title": "", "text": "whether willful and malicious injury is established solely by proving intentional injury, or whether “willful” requires a finding of intentional injury and “malicious” requires that the act be without just cause or excuse. See Mitsubishi Motors Credit of America, Inc. v. Longley (In re Longley), 235 B.R. 651, 656 n. 5 (10th Cir. BAP 1999) and cases cited therein. A number of courts have adopted an integrated test, holding that an injury is willful and malicious if the Debtor intended to cause harm or if there is an objective substantial certainty that his or her actions will lead to injury. Miller v. J.D. Abrams, Inc. (In re Miller), 156 F.3d 598, 606 (5th Cir.1998); Harry Ritchie’s Jewelers, Inc. v. Chlebowski (In re Chlebowski), 246 B.R. 639, 645 (Bankr.D.Or.2000). Other courts have adopted the Miller or Markowitz test to prove “willful,” but require a separate test for the “malicious” prong. See Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1208-09 (9th Cir.2001) (adopts Markowitz test for “willful” prong, but also requires that the injury be wrongful, intentional and without just cause or excuse to satisfy “malicious” prong). The Sixth Circuit has adopted an integrated test, but a more subjective one than the Fifth Circuit did in Miller. Markowitz, 190 F.3d at 464. In this Circuit, under Markowitz, the Creditor must demonstrate that the Debtor either (1) intended to cause injury to the Creditor or to the Creditor’s property, or (2) engaged in an intentional act from which the Debtor believed injury would be substantially certain to result. 190 F.3d at 464. The Sixth Circuit recently reasserted the Markowitz test in affirming a decision by this Court excepting a debt from discharge under § 523(a)(6). Kennedy v. Mustaine (In re Kennedy), 249 F.3d 576 (6th Cir.2001). See also Avco Fin. Serv. v. Kidd (In re Kidd), 219 B.R. 278, 285 (Bankr.D.Mont.1998) (adopting same subjective test as Markowitz). In support of its position, Plaintiff has cited a number of pre-Geiger § 523(a)(6) cases in which the Debtor had disposed of or converted a Creditor’s collateral. See Vulcan Coals, Inc. v. Howard, 946" }, { "docid": "21026103", "title": "", "text": "September 29, 1999, the district court affirmed the bankruptcy court’s decision, finding Creditors’ judgment against Debtors nondischargeable under Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Thereafter, the district court issued its corresponding judgment affirming the bankruptcy court’s order, and it is from this judgment that Debtors now appeal. DISCUSSION When this Court considers an appeal taken from the district court’s final order in a bankruptcy case, the Court independently reviews the bankruptcy court’s decision. See Koenig Sporting Goods, Inc. v. Morse Rd. Co. (In re Koenig Sporting Goods, Inc.), 203 F.3d 986, 988 (6th Cir.2000). In doing so, the Court reviews the bankruptcy court’s findings of fact for clear error and its conclusions of law de novo. See Millers Cove Energy Co., Inc. v. Moore (In re Millers Cove Energy Co., Inc.), 62 F.3d 155, 157 (6th Cir.1995). This Court reviews the grant of a motion for summary judgment de novo as a matter of law. See Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 463 (6th Cir.1999). A. Test for Determining Discharge-ability Under Section 523(a)(6) Section 523(a) of the Bankruptcy Code provides for an exception to the discharge-ability of certain debts. Specifically, § 523(a)(6) provides for purposes of this action as follows: (а) A discharge under Section 727, 1141, 1228(a), 1228(b) of this title does not discharge an individual debtor from any debt— * * * (б) 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 Perkins v. Scharffe, 817 F.2d 392, 394 (6th Cir.1987), this Court held that “willful and malicious injury” as used within § 523(a)(6) could be found when an actor intends the act committed regardless of whether he intends the consequences thereof. However, in Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998), the Supreme Court addressed the “pivotal question” of whether “ § 523(a)(6)’s compass cover[s] acts, done intentionally, that cause injury ... or only acts done with the actual intent to cause injury.” In answering this inquiry," }, { "docid": "21093901", "title": "", "text": "that the issue was actually litigated, and that the determination was necessary to the outcome.” Spilman v. Harley, 656 F.2d 224, 228 (6th Cir.1981), overruled on other grounds, Bay Area Factors v. Calvert (In re Calvert), 105 F.3d 315, 319 (6th Cir.1997). That court observed that mutuality of parties “is no longer necessary in some circumstances.” Id. A split in authority exists as to whether to apply federal issue-preclusion law or state issue-preclusion law to a prior federal judgment based upon diversity. The bankruptcy judge in the instant action chose to analyze the issue-preclusive effect of the prior federal diversity judgment under Ohio law. Because issue preclusion under both Ohio law and federal law contain the common element that the precise issue must be raised in both proceedings, the outcome does not turn on the use of Ohio or federal law. The other federal preclusive elements are satisfied in this case, as are the Ohio elements. It is, therefore, unnecessary for this Panel to decide whether a bankruptcy court should always apply the federal law of issue preclusion when determining the issue preclu-sive effect of a prior federal diversity judgment. A. Kawaauhau instructs that for a debt to be nondischargeable under § 523(a)(6), the debtor must have intended not only his conduct, but also the consequences of his conduct. Interpreting Ka-waauhau and looking to the Restatement for guidance, the Sixth Circuit has held that a willful and malicious injury as defined under § 523(a)(6) is one where the debtor “desires to cause consequences of his act, or ... believes that the consequences are substantially certain to result from it.” In re Markowitz, 190 F.3d at 464 (quoting Restatement (Second) of Torts § 8A, at 15 (1964)). The Eighth Circuit, the Fifth Circuit, and the Ninth Circuit Bankruptcy Appellate Panel have also embraced the “substantially certain” standard. See Geiger v. Kawaauhau (In re Geiger), 113 F.3d 848 (8th Cir.1997); Miller v. J.D. Abrams, Inc. (In re Miller), 156 F.3d 598 (5th Cir.1998); Baldwin v. Kilpatrick (In re Baldwin), 245 B.R. 131 (9th Cir. BAP 2000) (following In re Markowitz and In" }, { "docid": "21667987", "title": "", "text": "397, 400 (6th Cir. 1998), Discharge exceptions are narrowly construed in favor of the debtor, and the creditor must prove by a preponderance of the evidence that a discharge exception applies. Meyers v. I.R.S. (In re Meyers), 196 F.3d 622, 624 (6th Cir. 1999). III. ANALYSIS The Bankruptcy Court held that “the only issue at trial was whether the debtor acted with malice.” (Doc. No. 1-2 at 3.) MarketGraphics argues that the Bankruptcy Court used the incorrect standard in determining whether David Berge acted with malice. (Doc. No. 15 at 46.) It further argues that the David Berge’s trial testimony conclusively shows that he acted with malice, and the Court therefore should enter judgment for MarketGraphics. (Id. at 53-75.) David Berge argues that the Bankruptcy Court’s judgment is correct. (Doc. No. 17.) A. The Standard A Chapter 7 bankruptcy does not discharge a debtor from any debt “for willful and malicious injury to another entity or to the property of another entity 11 U.S.C. § 523(a)(6). For § 523(a)(6) to apply, a debtor must (1) “will or desire harm[;]” or (2) “believe injury is substantially certain to occur as a result of his behavior.” Sanderson Farms, Inc. v. Gasbarro, 299 Fed.Appx. 499, 504 (6th Cir. 2008) (quoting Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 465 n.10 (6th Cir. 1999)). This' limits the exception to debts “based on what the law has for generations called an intentional tort.” Kawaauhau v. Geiger, 523 U.S. 57, 60, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (quoting In re Geiger, 113 F.3d 848, 852 (8th Cir. 1997) (en banc)). The “willful and malicious” standard in § 523(a)(6) has evolved. In the 1980s, the Sixth Circuit determined that “willful” means “an intentional act that results in injury,” Perkins v. Scharffe, 817 F.2d 392, 393 (6th Cir. 1987), and “malicious” means “in conscious disregard of one’s duties or without just cause or excuse; it does not require ill-will or specific intent to do harm.” Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir. 1986). In 1993, the United States Supreme Court overturned Perkins, holding that" }, { "docid": "1046133", "title": "", "text": "of these allegations center on confidential information about Rain Bird’s products and prospective customers, in the possession of GCIS, which was disclosed by Milton and Salisbury to NPC. Rain Bird also contended that these disclosures constituted misappropriation of its trade secrets. Because the district court concluded that Salisbury participated in these acts, he was found to be jointly and severally liable with the other defendants for damages caused to Rain Bird in the sum of $1,200,000.00. In the case of Raspanti v. Keaty (Matter of Keaty), 397 F.3d 264 (5th Cir.2005), Chief Judge Carolyn King discussed the Fifth Circuit standard for maintaining a cause of action under § 523(a)(6) of the Bankruptcy Code, as follows: Section 523(a)(6) of the Bankruptcy Code excepts from discharge any debt incurred for willful and malicious injury by the debtor to another entity. 11 U.S.C. § 523(a)(6)(2004). Section 523(a)(6) of the Bankruptcy Code specifically provides: § 523. Exceptions to discharge (а) 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 ... (б) for willful and malicious injury by the debtor to another entity or to the property of another entity.... Id. The Supreme Court, in Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998), stated that “[t]he word ‘willful’ in (a)(6) modifies the word ‘injury,’ indicating that nondischarge-ability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” The Fifth Circuit extended Kawaauhau’s reasoning in Miller v. J.D. Abrams, Inc. (In re Miller), 156 F.3d 598, 603 (5th Cir.1998), and stated that “either objective substantial certainty [of injury] or subjective motive [to injure] meets the Supreme Court’s definition of ‘willful ... injury’ in § 523(a)(6).” (third alteration in original). The court in Miller went on to define the word “malicious” and specifically rejected that it meant an act without just cause or excuse. Id. at 605. Instead, the court defined “malicious” as an act done with the actual intent to cause injury. Id. at 606. The court noted that this" }, { "docid": "21667988", "title": "", "text": "“will or desire harm[;]” or (2) “believe injury is substantially certain to occur as a result of his behavior.” Sanderson Farms, Inc. v. Gasbarro, 299 Fed.Appx. 499, 504 (6th Cir. 2008) (quoting Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 465 n.10 (6th Cir. 1999)). This' limits the exception to debts “based on what the law has for generations called an intentional tort.” Kawaauhau v. Geiger, 523 U.S. 57, 60, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (quoting In re Geiger, 113 F.3d 848, 852 (8th Cir. 1997) (en banc)). The “willful and malicious” standard in § 523(a)(6) has evolved. In the 1980s, the Sixth Circuit determined that “willful” means “an intentional act that results in injury,” Perkins v. Scharffe, 817 F.2d 392, 393 (6th Cir. 1987), and “malicious” means “in conscious disregard of one’s duties or without just cause or excuse; it does not require ill-will or specific intent to do harm.” Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir. 1986). In 1993, the United States Supreme Court overturned Perkins, holding that a “willful and malicious injury” only covers “acts done with the actual intent to cause injury .... ” Geiger, 523 U.S. at 61, 118 S.Ct. 974. In 1999, the Sixth Circuit applied Gieger in In re Markowitz, stating that “the judgment must be for an injury that is both willful and malicious. The absence of one creates a dischargeable debt.” In re Markowitz, 190 F.3d at 463. It held that unless “the actor desires to cause consequences of his act, or ... believes that the consequences are substantially certain to result from it, ... he has not committed a ‘willful and malicious injury' as defined under § 523(a)(6).” Id. at 464 (citing Restatement (2d) of Torts § 8A, at 15 (1964)). In 2001, Sixth Circuit explicitly stated that Geiger overruled both Perkins and Wheeler, although it did not state whether it only overturned the definition of “willful” in both opinions or if it also overturned the definition of “malicious” in Wheeler. In re Kennedy, 249 F.3d 576, 580 (6th Cir. 2001). The parties have not" } ]

[ { "docid": "6067245", "title": "", "text": "court vacated the bankruptcy court’s order, thereby reimposing the automatic stay. Because the parties did not agree on the value of the Property (five differing appraisals set a price in the range of $1,150,000 to $2,300,000), the district court remanded the case to the bankruptcy court for valuation, and potential bifurcation of .Grammas’s interest into secured and unsecured claims, as required by 11 U.S.C. § 506(a). He also ordered a deadline set for Pegasus to present the actual reorganization plan. In re Pegasus, No. 96 Civ. 0068(CLB), at 3. DISCUSSION A. Appellate Jurisdiction Title 28 U.S.C. § 158(a) gives district courts jurisdiction to hear appeals from final orders of the bankruptcy courts. The standard for finality in bankruptcy matters is more flexible than in ordinary civil litigation, because bankruptcy proceedings often continue for long periods of time and discrete claims are resolved from time to time over the course of the bankruptcy proceeding. In re Prudential Lines, Inc., 59 F.3d 327, 331 (2d Cir.1995). An order lifting the automatic stay is final and appealable, see In re Chateaugay Corp., 880 F.2d 1509, 1511 (2d Cir.1989), and the district court therefore had jurisdiction. Appellate courts, however, have jurisdiction only over final orders of a district court in bankruptcy proceedings, 28 U.S.C. § 158(d), and Pegasus argues that the district court’s remand order is not final and, therefore, not appealable. We disagree. We have applied a two-step analysis to determine whether we have appellate jurisdiction over a district court’s order in a bankruptcy proceeding. First, we determine whether the underlying decision of the bankruptcy court is final. Bowers v. Connecticut Nat’l Bank, 847 F.2d 1019, 1021-22 (2d Cir.1988). A bankruptcy judge’s order is final if it “completely resolve[s] all of the issues pertaining to a discrete claim, including issues as to the proper relief.” In re Prudential Lines, 59 F.3d at 331 (quoting In re Integrated Resources, Inc., 3 F.3d 49, 53 (2d Cir.1993)). Second, if the bankruptcy court’s decision is final, we ask “whether the district court’s disposition independently rendered the matter nonappealable,” i.e., whether the district court’s decision is also" } ]

[ { "docid": "17626660", "title": "", "text": "contemplated are of a purely ministerial character’ ” (quoting In re Lopez, 116 F.3d 1191, 1192 (7th Cir.1997))). The trustee argues that the BAP’s order dismissing Huntington Bank’s appeal from the denial of the substantive consolidation motions remanded the case to the bankruptcy court for further proceedings, and therefore it cannot be considered final. However, there is no language in the BAP’s order that mentions remand. So the trustee resorts to the notion that the BAP’s order served as a de facto remand because it relied on the fact that “common issues shared by the motions to consolidate and Teleservices’ adversary proceeding” were not decided. BAP Order at 2. We do not see it that way. The BAP’s decision to dismiss Huntington Bank’s appeal was based on its finding that the bankruptcy court’s orders denying the substantive consolidation motions were interlocutory, nothing more. It fully resolved the appellate proceedings by deciding the jurisdictional question and left nothing for the bankruptcy court to do. Schwartz v. Kujawa (In re Kujawa), 323 F.3d 628, 629 (8th Cir.2003) (explaining that BAP’s order dismissing an appeal on the ground that the underlying bankruptcy court’s order was not a final order was final and appealable because “[i]t completely disposed of all matters pending before the Panel”). We have jurisdiction under 28 U.S.C. § 158(d)(1) to address the correctness of that decision. III. The question whether the bankruptcy court’s orders denying the substantive consolidation are appealable requires consideration of the same concept: finality. The BAP’s jurisdiction is the same as the district court’s appellate jurisdiction over bankruptcy matters, extending to “final judgments, orders, and decrees” of the bankruptcy court, and certain interlocutory orders. 28 U.S.C. § 158(a). We have held that the “finality requirement is considered ‘in a more pragmatic and less technical way in bankruptcy cases than in other situations.’ ” Lindsey v. O’Brien, Tanski, Tanzer & Young Health Care Providers of Conn. (In re Dow Corning Corp.), 86 F.3d 482, 488 (6th Cir.1996) (quoting Cottrell v. Schilling (In re Cottrell), 876 F.2d 540, 541-42 (6th Cir.1989)); see also Millers Cove Energy Co., Inc. v." }, { "docid": "22419941", "title": "", "text": "whether to grant or deny permission of a party to sue the trustee for an abuse of discretion by the lower court. Under the abuse of discretion standard, the Ninth Circuit has clearly stated that the trial court’s exercise of its discretion wall not be disturbed unless there is “ ‘a definite and firm conviction that the court' below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.’” Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451 (9th Cir.1994) (citations omitted). V.DISCUSSION A. Whether this Bankruptcy Appellate Panel has jurisdiction to hear this matter. As an initial point, this Panel must consider whether the, appeal to be heard is interlocutory in nature. The order by the bankruptcy court denies the Debtors’ motion without prejudice to refile with the requested supplementation, so long as the Debtors act prior to the bankruptcy case being closed. The order further provides that if the Debtors do not so act, their motion will be denied with prejudice. 28 U.S.C. § 158(a) gives the federal district court jurisdiction to hear appeals from “final judgments, orders, and decrees, and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under section 157 of this title.” (Emphasis added.) Section 158(b) has allowed the judicial council of each circuit to establish a bankruptcy appellate panel to hear, with consent of all of the parties, appeals under subsection (a) of Section 158. To become final, the decision, order, or decree must end the litigation, or dispose of a complete claim for relief, and leave nothing for the court to do but execute the judgment. Elliott v. Four Seasons Properties (In re Frontier Properties, Inc.), 979 F.2d 1358, 1362 (9th Cir.1992) (citations omitted). An interlocutory appeal is one which stems from a judgment, order, or decree which does not finally determine a cause of action, but instead decides only an intervening matter. In re Eleccion, 178 B.R. 807, 808 (9th Cir. BAP 1995). The appeal in this case" }, { "docid": "15190503", "title": "", "text": "trustee. Therefore, the court concluded that the unreasonable practice defense was unavailable to PTI. The court further determined that § 8 of the NRA did not divest the district court of jurisdiction to decide the issue of contract carriage. According to the district court, § 8 of the NRA was unenforceable in bankruptcy because it conflicted with the jurisdictional provisions of 28 U.S.C. §§ 157 and 1334. After consider ing and rejecting PTI’s contract carriage defense on the merits, the district court awarded summary judgment to the trustee. Notwithstanding the continued pendency of PTI’s counterclaim before the ICC, the district court directed that judgment be entered immediately and certified as final under Fed.R.Civ.P. 54(b). Acknowledging PTI’s right to have the rate reasonableness claim determined by the ICC, however, the court stated that it would not rescind the April 13, 1993, order permitting PTI to pursue its counterclaim. PTI failed timely to appeal the district court’s final judgment. Approximately six months later, in June 1995, the district court ordered that ten interlocutory appeals regarding the NRA’s applicability in bankruptcy proceedings be stayed pending our decision in Cooper v. Stonier Transp. Group, Inc. (In re Bulldog Trucking, Inc.), 66 F.3d 1400 (4th Cir.1995). Notwithstanding the entry of final judgment on the trustee’s undercharge claim, PTI’s interlocutory appeal of March 1994 was among those stayed by the district court. In B & L, Inc. and Stonier, consolidated appeals arising out of the Bulldog bankruptcy proceedings, we considered whether the NRA was applicable in the bankruptcy context. We held, first, that the unreasonable practice defense afforded shippers by § 2(e) did not violate the antiforfeiture provisions of the bankruptcy code. B & L, Inc., 66 F.3d at 1398; Stonier, 66 F.3d at 1402. Second, we determined that the NRA required referral of a defense of unreasonable practice to the ICC for initial decision, subject to review by the court of original jurisdiction. B & L, Inc., 66 F.3d at 1398; Stonier, 66 F.3d at 1402 n. 2. Finally, we concluded that referral of a contract carriage defense to the ICC was mandated by §" }, { "docid": "4361091", "title": "", "text": "the issue of the identity of the trustee. Id. We are persuaded by the logic of the Third Circuit and conclude that the removal of a bankruptcy trustee is a “final” order appealable to this Court. 2. Jurisdiction to enter Removal Order II and Final Judgment Walden argues that the bankruptcy court did not have jurisdiction to enter Removal Order II and the Final Judgment because the judge did not enter these orders until several days after Walden filed her notice of appeal of Removal Order I. She argues that once she filed her notice of appeal, the bankruptcy court was divested of jurisdiction with respect to any matters involved in the appeal. The filing of a proper notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the appellate court and divests the trial court of its control over those aspects of the case involved in the appeal. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 5.Ct. 400, 74 L.Ed.2d 225 (1982). But as recently as August of last year, this Court has recognized an exception to this rule. See In re Mosley, 494 F.3d 1320, 1328 (11th Cir.2007). In In re Mosley, the debtor sought discharge of his student loan debts. The bankruptcy court issued its findings orally and entered a brief written order discharging the debts. Id. at 1324. The creditor then filed an appeal to the district court. Subsequently, the bankruptcy court issued a supplemental order in which it restated its findings and rationale and cited relevant case law. Id. The district court affirmed the bankruptcy court’s order. This Court concluded that while the filing of a notice of appeal generally “confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal,” an exception exists. Id. at 1328 (quoting Griggs, 459 U.S. at 58, 103 S.Ct. 400). We concluded that when a trial court reduces its oral findings to writing and cites relevant case law, it does not lack jurisdiction to do so because the losing party" }, { "docid": "22032296", "title": "", "text": "in the administration of the estate.” Because the bankruptcy court held that Crossland’s services could not be charged against the estate, it declined to consider whether they were “necessary” under 11 U.S.C. § 330(a). Crossland appealed to the district court, which vacated the bankruptcy court’s order and remanded because the bankruptcy court improperly applied “section 330 and its case progeny; and without citing authority for doing so, employed an unsupported test of whether attorney services bear on the trustee personally.” The United States Trustee appealed from the district court’s decision. She argues, as does Crossland, that the district court decision was final under 28 U.S.C. § 158(d). She asks us to reverse and remand with instructions to affirm the order of the bankruptcy court. II Although both parties contend that we have jurisdiction over this appeal, we have an independent duty to examine the propriety of our subject matter jurisdiction. United States v. Stone (In re Stone), 6 F.3d 581, 583 n. 1 (9th Cir.1993). In this case, the district court exercised appellate jurisdiction over a decision of the bankruptcy court pursuant to 28 U.S.C. § 158(a). That provision gives district courts jurisdiction to hear appeals from “final judgments, orders, and decrees, and with leave of the court, from interlocutory orders and decrees” of the bankruptcy court. Id. The bankruptcy court’s order denying Crossland’s fee application constituted a final decision under section 158(a). Thus, the district court properly asserted jurisdiction. Section 158(d) provides that “[t]he courts of appeal shall have jurisdiction of appeals from all final decisions, judgments, orders, and decrees entered under subsections (a) and (b) of this section.” Id. § 158(d). Our jurisdiction under section 158(d) therefore requires a final decision from the district court. Where, as here, the district court acts in its bankruptcy appellate capacity, 28 U.S.C. § 1291 may also give us appellate jurisdiction to review final decisions. See Connecticut National Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (Germain); Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 891 (9th Cir.1992) (Vylene)." }, { "docid": "4361087", "title": "", "text": "had lied on the Verified Statement when she indicated that she had no connections with any creditors and that she further lied to the court about both (1) whether she acted as an expert witness and accountant for Shuhi and/or his entities in a state court action several years prior to the bankruptcy proceeding wherein Shu-hi’s entities sued the Simon law firm, and (2) whether she was a Registered Agent for entities owned and controlled by Shuhi in 2001 and after. Walden then appealed to the district court, which affirmed the bankruptcy court’s orders. On appeal to this Court, Walden contends that (1) the bankruptcy court lacked jurisdiction to enter Removal Order II and Final Judgment because Walden already had filed an appeal of Removal Order I, thus stripping the bankruptcy court of jurisdiction; (2) Walker—as a Chapter 7 debtor with no pecuniary interest in the estate—lacked standing as a “party in interest” to seek removal of the trustee ; (3) there was insufficient legal cause to remove the trustee; and (4) the bankruptcy court erred by violating Walden’s Due Process rights. We will address these issues in turn. But first, we must examine whether this Court has jurisdiction over an appeal of the district court’s affirmance of the bankruptcy court’s removal orders. Discussion 1. Jurisdiction over Appeal of District Court’s Affirmance of Removal Orders Although neither party submitted briefs on the issue, it is a duty of this Court to determine whether it has jurisdiction over a particular matter, even if doing so raises the issue sua sponte. Finn v. Prudential-Bache Sec., Inc., 821 F.2d 581, 585 (11th Cir.1987). We review jurisdictional issues de novo. AT&T Mobility, LLC v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 494 F.3d 1356, 1360 (11th Cir.2007). A court of appeals has jurisdiction over only final judgments and orders arising from a bankruptcy proceeding, whereas the district court may review interlocutory judgments and orders as well. Lockwood v. Snookies, 60 F.3d 724, 725 (11th Cir.1995). Whether this Court has jurisdiction over the Removal Orders, therefore, depends upon whether they are “final.” Id. Whether" }, { "docid": "12625372", "title": "", "text": "(a) and (b) of this section. Thus, while a district court has jurisdiction to hear bankruptcy appeals not only from bankruptcy court orders that are final, but also from orders that are nonfinal if taken with leave of the district court, subsection 158(d) confers appellate jurisdiction in the courts of appeals only over “final” district court orders. See In re Johns-Manville Corp., 920 F.2d 121, 126 (2d Cir.1990). For purposes of appeal, the concept of “finality” is more flexible in the bankruptcy context than in ordinary civil litigation. In re Prudential Lines, 59 F.3d 327, 331 (2d Cir.1995). “ ‘[O]rders in bankruptcy cases may be immediately appealed if they finally dispose of discrete disputes within the larger case.’ ” In re Johns-Manville Corp., 920 F.2d at 126 (quoting In re Saco Local Dev. Corp., 711 F.2d 441, 444 (1st Cir.1983)) (emphasis omitted). An inquiry into appellate jurisdiction under subsection 158(d) consists of two steps: “First, we must determine whether the underlying decision of the bankruptcy court was final or interlocutory_ If the decision [of the bankruptcy court] was final, we must then ask whether the district court’s disposition independently rendered the matter nonappealable.” Bowers v. Connecticut Nat’l Bank, 847 F.2d 1019, 1022 (2d Cir.1988). After a hearing on the possible retention of Keen, the bankruptcy court authorized the trustee to hire Keen as a real estate consultant for the bankruptcy estate. Nothing in the order of the bankruptcy court or its affirmance by the district court indicates any anticipation that the decision will be reconsidered. See In re Johns-Manville Corp., 920 F.2d at 127. Also, the district court, in affirming the bankruptcy court’s order, noted that the bankruptcy court’s order was a “final order.” Nothing in the district court’s disposition independently rendered the matter nonap-pealable. The district court did not direct further proceedings in the bankruptcy court. Cf. In re Financial News Network, 931 F.2d 217, 221 (2d Cir.1991) (per curiam). The district court simply affirmed the bankruptcy court’s final order. See In re Johns-Manville Corp., 920 F.2d at 127. Therefore, the orders of the bankruptcy court and the district" }, { "docid": "9776864", "title": "", "text": "787 F.2d 1339, 1342 (9th Cir.1986)). B. Whether our jurisdiction is properly invoked As we have indicated, before reaching the merits of this dispute we first must determine whether we have jurisdiction. This jurisdictional issue is implicated because the district court’s order in part remanded the case for further proceedings in the bankruptcy court. Moreover, there will be additional proceedings involving numerous issues with respect to the bankruptcy estates in both the district and bankruptcy courts. In bankruptcy cases, we have jurisdiction pursuant to 28 U.S.C. § 158(d) over appeals from “final decisions, judgments, orders, and decrees entered,” as here, by a district court in its appellate capacity under 28 U.S.C. § 158(a). Yet, we have recognized that in a bankruptcy context we consider the question of whether an order or judgment is final “in a more pragmatic and less technical sense than in other matters .... ” Meyertech Corp., 831 F.2d at 414. Determining whether an appellant has invoked our jurisdiction properly entails “balancing a general reluctance to expand traditional interpretations regarding finality and a desire to effectuate a practical termination of the matter before us.” Id. The relevant factors consist of (1) the impact of our consideration of the merits of the appeal upon the assets of the bankrupt estate, (2) the necessity for further fact-finding on remand, (3) the preclusive effect of a decision on the merits on further litigation, and (4) whether the interest of judicial economy would be furthered by the exercise of jurisdiction. Id. We have held that the impact upon the assets of the estate is the “most important” factor in this balancing scheme. See In re Market Square Inn, Inc., 978 F.2d 116, 120 (3d Cir.1992). Applying these factors here, we conclude that we have jurisdiction to consider Arch Street’s appeal, as all four factors weigh in favor of our exercise of jurisdiction. First and foremost, this appeal concerns identifying assets of Blatstein’s estate. Plainly, a reversal of the district court’s order and a determination that Blatstein fraudulently conveyed his assets to his wife or that the Blatsteins’ corporations are his alter" }, { "docid": "18720252", "title": "", "text": "bankruptcy court. 28 U.S.C. § 1293(b). The district courts’ jurisdiction of appeals from decisions of the bankruptcy courts is not so limited. Final decisions of the bankruptcy court are ap-pealable as of right to the appropriate district court.. 28 U.S.C. § 1334(a). But the district court also is authorized to exercise its discretion to entertain interlocutory appeals from the bankruptcy court. 28 U.S.C. § 1334(b). This court and others have held that a district court’s decision on an appeal from a bankruptcy court’s interlocutory order generally is not a final order for purposes of further appellate review under section 1293(b). In re Riggsby, 745 F.2d 1153, 1154 (7th Cir.1984); In re Tidewater Group, Inc., 734 F.2d 794 (11th Cir.1984); In re Comer, 716 F.2d 168 (3d Cir.1983). And, a district court’s decision on an appeal from a bankruptcy court’s final order will be reviewed only if it also is final. Riggsby, 745 F.2d at 1155. Thus, an order by the district court remanding the case to the bankruptcy court for further significant proceedings will not be automatically and immediately appealable to this court, provided the order may be effectively reviewed on appeal from the bankruptcy court’s “final final” decision. Id. at 1156. With these basic principles in mind, we turn to an examination of the six orders appealed in this case. The orders entered by the bankruptcy court in the turnover proceeding (4-6) were, in our view, final orders. Although the orders allowing limited intervention by the Director and denying the Director’s motion to dismiss the turnover proceeding were interlocutory, they became final and appealable as such with the entry of the order requiring the Director’s receiver to turn over the debtors’ property to the bankruptcy trustee. Because this order terminated the adversary proceeding, all three orders were appealable to the district court as final orders. The district court’s affirmance of these orders also was a final decision, ap-pealable to this court under section 1293(b). In re Tarnow, 749 F.2d 464, 464-65 (7th Cir.1984). The three orders entered in the context of the chapter 11 proceeding (1-3) stand on a" }, { "docid": "12945864", "title": "", "text": "provision applies to a timely motion: (1) to amend or make additional findings of fact under Rule 7052, whether or not granting the motion would alter the judgment; [or] (2) to alter or amend the judgment under Rule 9023.... A notice of appeal filed after announcement or entry' of the judgment, order, or decree but before disposition of any of the above motions is ineffective to appeal from the judgment, order, or decree, or part thereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding. Appellate review of an order disposing of any of the above motions requires the party, in compliance \"with Rule 8001, to amend a previously filed notice of appeal.” Fed. R. ‘ Bankr.P. 8002(b). Because the bankruptcy court hasn’t ruled on Chrysler’s motion to alter or amend, neither Krebs nor Chrysler can appeal the underlying orders at this time. Also, the bankruptcy court has not ruled on Chrysler’s motion to reconsider, so Chrysler may not found its appeal here on that motion. Finally, while Krebs has appealed the denial of its motion to reconsider, Chrysler did not appeal that decision, either. Hence, the district court did not have jurisdiction to hear an appeal from Chrysler. It follows that we lack jurisdiction over Chrysler’s appeal from the district court order emanating from Krebs’s appeal. In the cases cited by Chrysler and GMAC, the parties had first appealed a bankruptcy court order to the district court. See Travelers Ins. Co. v. H.K. Porter Co., 45 F.3d 737, 740-41 (3d Cir.1995) (order granting motion to vacate withdrawals and defaults of claims); In re Dykes, 10 F.3d 184, 186 (3d Cir.1993) (order confirming Chapter 13 plan); In re El San Juan Hotel, 809 F.2d 151, 152-53 (1st Cir.1987) (order granting U.S. leave to sue a former trustee); In re Fondiller, 707 F.2d 441, 441 (9th Cir.1983) (order authorizing employment of special counsel for bankruptcy trustee). Chrysler cites only one case that even arguably supports its position regarding our jurisdiction over its appeal. In In re Colonial Broad. Corp., 758 F.2d" }, { "docid": "3025163", "title": "", "text": "into one class and all other unsecured creditors in another. The plans provided for full repayment of the student loans over the life of the plans but only 10-40% repayment of other unsecured claims. At the completion of a Chapter 13 plan, the unpaid portions of most unsecured debts are discharged but student loans, unless fully repaid during the plan period, are not discharged. See 11 U.S.C. § 1328(a)(2). Thus, debtors’ proposed classifications would maximize the benefits of Chapter 13 protection by allowing them to repay nondischargeable debts at the expense of their other unsecured creditors. The trustee objected to each plan as unfairly discriminating against these other unsecured claims. The bankruptcy court consolidated the cases and sustained the trustee’s objections, concluding that the non-dischargeability of student loans is an insufficient basis for discriminatory classifications. Debtors successfully moved to stay dismissal of their Chapter 13 cases pending appeal and then appealed to the district court under 28 U.S.C. § 158(a). The district court affirmed, 160 B.R. 121, and debtors now appeal to this court under 28 U.S.C. § 158(d). In Lewis v. Farmers Home Admin., 992 F.2d 767 (8th Cir.1993), we held that a bankruptcy court order denying confirmation of a Chapter 13 plan without dismissing the case is not a final order under § 158(d). Once again, as happens all too often, bankruptcy practitioners have briefed and argued an appeal to this court paying no attention to our controlling jurisdictional precedents. The Chapter 13 cases of Clarice Groves and Joyce Harvel-Barney were pending when debtors appealed the district court order. Those appeals are dismissed for lack of jurisdiction. However, we have reviewed the bankruptcy court file and conclude that the appeal by Ethyl Davis stands in a different posture. Five months before the district court entered the order here at issue, the bankruptcy court granted the trustee’s motion to dismiss Davis’s Chapter 13 case. Therefore, we have jurisdiction over Davis’s appeal because the district court order “effectively terminated the proceeding on the merits,” leaving only the ministerial tasks of approving the trustee’s final account and closing the case. In" }, { "docid": "4361092", "title": "", "text": "year, this Court has recognized an exception to this rule. See In re Mosley, 494 F.3d 1320, 1328 (11th Cir.2007). In In re Mosley, the debtor sought discharge of his student loan debts. The bankruptcy court issued its findings orally and entered a brief written order discharging the debts. Id. at 1324. The creditor then filed an appeal to the district court. Subsequently, the bankruptcy court issued a supplemental order in which it restated its findings and rationale and cited relevant case law. Id. The district court affirmed the bankruptcy court’s order. This Court concluded that while the filing of a notice of appeal generally “confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal,” an exception exists. Id. at 1328 (quoting Griggs, 459 U.S. at 58, 103 S.Ct. 400). We concluded that when a trial court reduces its oral findings to writing and cites relevant case law, it does not lack jurisdiction to do so because the losing party filed a notice of appeal after the oral hearing but before the entry of the written order. Id. Such a subsequent order aids appellate review. Accordingly, we conclude that the bankruptcy court had jurisdiction to enter Removal Order II and the Final Judgment. 3. Standing to Remove the Trustee Walden next contends that Walker lacked standing to request her removal as trustee because he did not allege or prove that he had any pecuniary interest in the estate. She argues that because the bankruptcy proceeding dealt with a single asset liquidation and the claims against the estate far exceeded its value (liabilities of over $1 million compared to assets of $101), Walker lacked standing and, therefore, the bankruptcy court lacked jurisdiction. Courts generally have held that to have standing in a bankruptcy proceeding, the party must be a “party in interest.” See In re Westwood Community Two Ass’n, Inc., 293 F.3d 1332, 1337 (11th Cir.2002) (any “party in interest” has a right to be heard in a Chapter 7 bankruptcy proceeding). But whether a debtor" }, { "docid": "18543848", "title": "", "text": "approach in determining finality under § 158(d) because of the unique nature of a bankruptcy proceeding.... A district court renders a final order when it affirms or reverses a bankruptcy court’s final order. If it remands for factual determinations on a central issue, its order is not final and we lack jurisdiction to review the order. s|* ífc # The most difficult cases are those in which the district court ... reverses a final order of the bankruptcy court and remands the matter to the bankruptcy court. Here we have balanced the policies of avoiding piecemeal appeals and enhancing judicial efficiency. In re Vylene Enters., Inc., 968 F.2d 887, 894-95 (9th Cir.1992). If the matters on remand concern primarily factual issues about which there is no dispute, and the appeal concerns primarily a question of law, then the “policies of judicial efficiency and finality are best served by our resolving the question now.” In re Kelly, 841 F.2d 908, 911 (9th Cir.1988). Here, the district court remanded for entry of an order allocating the amount and extent of the tax liens in dispute, an issue which required no further factual development. It also reversed the bankruptcy court on the issue of avoidance of tax liens on property not within the bankruptcy estate. That separate and purely legal issue is the only issue before us, though our resolution of it will no doubt aid in the allocation decision. Resolving it will serve the demands of judicial efficiency. Therefore we have jurisdiction over this appeal pursuant to § 158(d). We review de novo the district court’s decision on an appeal from a bankruptcy court. See In re Siragusa, 27 F.3d 406, 407 (9th Cir.1994). DISCUSSION In general, the Bankruptcy Code authorizes a debtor to exempt certain property from the bankruptcy estate so that it may not be reached by the trustee in bankruptcy. See 11 U.S.C. § 522. Section 522(h) allows the debtor to avoid certain transfers of exempt property. The debtor must meet five conditions in order to do so: (1) the transfer cannot have been a voluntary transfer of property" }, { "docid": "17626659", "title": "", "text": "444 B.R. 767, 772 n. 3, 844 (Bankr.W.D.Mich.2011). II. The court of appeals has appellate jurisdiction over “all final decisions, judgments, orders, and decrees” entered by a Bankruptcy Appellate Panel. 28 U.S.C. § 158(d)(1). The Cyberco trustee argues that the BAP’s order dismissing the Huntington Bank’s notice of appeal is not a final order, and therefore we have no jurisdiction to reach the underlying question whether the bankruptcy court’s orders denying the substantive consolidation motions are appealable. We disagree. Our cases have made clear that an order by a BAP (or a district court exercising appellate jurisdiction over a bankruptcy court) remanding a case for anything more than ministerial proceedings by the bankruptcy court is not a final, appealable order. Settembre v. Fidel. & Guar. Life Ins. Co., 552 F.3d 438, 441 (6th Cir.2009) (reviewing cases and “holding] expressly that ‘a decision by the district court on appeal remanding the bankruptcy court’s decision for further proceedings in the bankruptcy court is not final, and so is not appealable to this court, unless the further proceedings contemplated are of a purely ministerial character’ ” (quoting In re Lopez, 116 F.3d 1191, 1192 (7th Cir.1997))). The trustee argues that the BAP’s order dismissing Huntington Bank’s appeal from the denial of the substantive consolidation motions remanded the case to the bankruptcy court for further proceedings, and therefore it cannot be considered final. However, there is no language in the BAP’s order that mentions remand. So the trustee resorts to the notion that the BAP’s order served as a de facto remand because it relied on the fact that “common issues shared by the motions to consolidate and Teleservices’ adversary proceeding” were not decided. BAP Order at 2. We do not see it that way. The BAP’s decision to dismiss Huntington Bank’s appeal was based on its finding that the bankruptcy court’s orders denying the substantive consolidation motions were interlocutory, nothing more. It fully resolved the appellate proceedings by deciding the jurisdictional question and left nothing for the bankruptcy court to do. Schwartz v. Kujawa (In re Kujawa), 323 F.3d 628, 629 (8th Cir.2003)" }, { "docid": "14194705", "title": "", "text": "on the amended Schedule C and the trustee’s objections thereto, and took the matter under advisement. On January 30, 1995, the bankruptcy court entered an order sustaining the trustee’s objection with respect to the condominium. In re Cochrane, 178 B.R. 1011 (Bankr.D.Minn.1995) (Order Sustaining Objections to Debtor’s Claim of Exemption in Certain Florida Real Estate). The bankruptcy court held that debtor’s interest in the condominium was not exempt, immune, or excluded from debtor’s bankruptcy estate under the Florida law of tenancy by the entirety and that debtor’s interest in the condominium was an asset of the estate which the trustee could proceed to administer. Id. at 1022. Debtor appealed the bankruptcy court’s January 30, 1995, order to the district court, where that appeal is currently pending. As a consequence, the litigation over the exempt status of the condominium has been bifurcated: the issues raised by debt- or’s homestead exemption claim are now before this court on appeal from the district court while the issues raised by debtor’s tenancy by the entirety exemption claim remain pending before the district court. Jurisdiction under 28 U.S.C. § 168(d) At oral argument, on October 16, 1995, we questioned counsel regarding the basis for our jurisdiction under 28 U.S.C. § 158(d) and invited counsel to submit supplemental mem-oranda stating their positions on the jurisdictional issue. The trustee submitted a memorandum to the court on December 15, 1995, urging dismissal of the appeal for lack of jurisdiction. In bankruptcy cases, jurisdiction in the district courts and in the courts of appeals is governed by 28 U.S.C. § 158. Subsection (a), addressing the district court’s appellate jurisdiction, provides: (a) The district courts of the United States shall have jurisdiction to hear appeals!;] (1)from final judgments, orders, and decrees; (2) from interlocutory orders and decrees issued under section 1121(d) of title 11 increasing or reducing the time periods referred to in section 1121 of such title; and (3) with leave of the court, from other interlocutory orders and decrees; and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings" }, { "docid": "14713861", "title": "", "text": "order is not itself final if the district court’s decision remands the case to the bankruptcy court for significant further proceedings. Under those circumstances, the district court’s decision is not automatically appealable .to the court of appeals. Matter of Riggsby, 745 F.2d 1153, 1156 (7th Cir.1984). See also 28 U.S.C. § 158(d). Still unresolved here, is the validity of the creation of the tenancy by the entirety. If the trial court finds that it was created to defraud creditors and that the complete title rests in the debtor’s estate, any pronouncement we might now make on the tenancy by the entirety vis-á-vis the bankruptcy proceedings would be rendered academic. In an effort to avoid piecemeal adjudication of the case, we abstain at this time from deciding the issues of the constitutionality of the remand and Mrs. Abdal-lah’s standing to object to the sale. Appellee points out that two appellants, creditor Donahue & Donahue and Trustee Roffman, failed to file timely notices of appeal from the bankruptcy court to the district court, see Bankruptcy Rule 8002(a) and (c). Compliance with this requirement is both mandatory and jurisdictional U.S.M. Corp. v. G.K.N. Fasteners Ltd., 578 F.2d 21, 22 (1st Cir.1978). Untimely notice of appeal deprives the district court of jurisdiction to review the bankruptcy court’s order. Matter of Ramsey, 612 F.2d 1220, 1222 (9th Cir.1980). While this may have had no practical effect over the district court’s review of the order, this court’s jurisdiction can only be based on a proper exercise of jurisdiction by the court below. Id. We, therefore, are without jurisdiction over those appellants’ appeals on these issues. The appeals of Donahue & Donahue, No. 85-1105 and Allen H. Roffman, No. 85-1152, are dismissed for lack of jurisdiction. The order of the district court as to these two appellants is hereby vacated and the case is remanded so that said court may dismiss their appeals from the bankruptcy court. The appeal of Richard Drury, No. 85-1106, is dismissed without prejudice because the district court’s order was not final. . Creditors Drury and Donahue & Donahue joined the motion some" }, { "docid": "17927975", "title": "", "text": "States, 851 F.2d 660, 664 (3d Cir.1988) (citations omitted), quoted in In re Marcus Hook Development Park, Inc., 943 F.2d 261, 263 (3d Cir.1991). We will refer to the appellants (Maggio and RGZ) as “the trustees.” II. In order for us to reach the merits of the issues raised on appeal, the procedural posture of this case requires that we resolve a threshold jurisdictional question. 28 U.S.C. § 158(d) provides that courts of appeals have jurisdiction over appeals in bankruptcy matters where the district courts have entered “final decisions, judgments, orders, and decrees.” In this case, the district court, in resolving the conflict of interest issue with respect to Maggio and RGZ, remanded the issue of interim compensation to the bankruptcy court. We must determine whether this remand renders non-final the order appealed from, depriving us of jurisdiction. In approaching this finality question, we recognize that “[t]he unique characteristics of bankruptcy cases have led us to ‘consistently consider[ ] finality in a more pragmatic and less technical way in bankruptcy cases than in other situations.’ ” F/S Airlease II, Inc. v. Simon, 844 F.2d 99, 103 (3d Cir.1988), cert. denied, 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988) (quoting In re Amatex Corp., 755 F.2d 1034, 1039 (3d Cir.1985)). “Bankruptcy cases frequently involve protracted proceedings with many parties participating. To avoid the waste of time and resources that might result from reviewing discrete portions of the action only after a plan of reorganization is approved, courts have permitted appellate review of orders that in other contexts might be considered interlocutory.” In re Amatex, 755 F.2d at 1039. In F/S Airlease, we enunciated several factors to be analyzed in determining the finality of a district court’s order in bankruptcy proceedings. These factors “included the impact of the matter on the assets of the bankruptcy estate, the preclusive effect of a decision on the merits, and whether the interests of judicial economy will be furthered.” F/S Airlease, 844 F.2d at 104. We then applied those factors to a case which is, in many respects, similar to the one now before" }, { "docid": "17626658", "title": "", "text": "trustee moved for leave to file a cross-appeal if the BAP allowed Huntington Bank to proceed with its appeal. The BAP ruled that the bankruptcy court’s orders denying substantive consolidation would not be final until the bankruptcy court decided “common issues shared by the motions to consolidate and Teleservices’ adversary proceeding.” BAP Order at 2. The BAP reasoned that an order granting substantive consolidation could be considered a final, appealable order, but there was no authority supporting the idea that a denial of such a motion could be a final order. The BAP also denied Huntington Bank’s motion for leave to file an interlocutory appeal from the orders. On November 24, 2010, Huntington Bank filed a notice of appeal of the BAP’s order dismissing its appeal. On March 17, 2011, the bankruptcy court issued an opinion that addressed “the issues raised at trial concerning the Teleservices adversary proceeding,” but refused to enter an order “because there remain[ed] a few unresolved matters that must be addressed.” Meoli v. Huntington Nat’l Bank (In re Teleservices Grp., Inc.), 444 B.R. 767, 772 n. 3, 844 (Bankr.W.D.Mich.2011). II. The court of appeals has appellate jurisdiction over “all final decisions, judgments, orders, and decrees” entered by a Bankruptcy Appellate Panel. 28 U.S.C. § 158(d)(1). The Cyberco trustee argues that the BAP’s order dismissing the Huntington Bank’s notice of appeal is not a final order, and therefore we have no jurisdiction to reach the underlying question whether the bankruptcy court’s orders denying the substantive consolidation motions are appealable. We disagree. Our cases have made clear that an order by a BAP (or a district court exercising appellate jurisdiction over a bankruptcy court) remanding a case for anything more than ministerial proceedings by the bankruptcy court is not a final, appealable order. Settembre v. Fidel. & Guar. Life Ins. Co., 552 F.3d 438, 441 (6th Cir.2009) (reviewing cases and “holding] expressly that ‘a decision by the district court on appeal remanding the bankruptcy court’s decision for further proceedings in the bankruptcy court is not final, and so is not appealable to this court, unless the further proceedings" }, { "docid": "13845877", "title": "", "text": "In re Commercial Contractors when one considers the facts. In In re O’Connor, the district court had reversed a bankruptcy court order granting debtors’ use of cash collateral. 808 F.2d at 1395. After an evidentiary hearing, the bankruptcy court had made a factual finding that creditors were adequately protected. The district court reversed the final order of the bankruptcy court on a legal ground which foreclosed debtors’ relief; thus, no significant further proceedings were required in the bankruptcy court. Id. Accordingly, we exercised jurisdiction. Read out of context, it might appear that the first sentence of the above quote suggests that if the bankruptcy court’s order is final, so too is that of the district court. See 1 Lawrence P. King, Collier on Bankruptcy ¶ 3.03 (1991) (so construing In re O’Connor). But the sentence was in response to the contention that the district court had passed on an “incidental matter” of the bankruptcy court and therefore the court of appeals lacked jurisdiction over the district court’s order. In re O’Connor, 808 F.2d at 1395 n.l. Yet to the extent the bankruptcy court’s order was final (not interlocutory) for purposes of appeal to the district court, the district court passed on a final order, and the district court’s order was likewise final because it merely reversed the bankruptcy court without need for a remand to conduct significant further proceedings. In re O’Connor does not support Appellants’ claim that we have jurisdiction. In Eddleman, we held that an order applying an automatic stay to a regulatory agency is a final order, like the grant or denial of an injunction, from which an appeal would lie to this court. Id., 923 F.2d at 785-86. The district court had affirmed a bankruptcy court order enforcing the automatic stay against a regulatory agency. Id. at 783. The district court remanded the case for determination of damages for violation of the automatic stay by the regulatory agency. Id. In view of the exemption from the automatic stay for police or regulatory action, 11 U.S.C. § 362(b)(4); Martin v. OSHRC, 941 F.2d 1051, 1054 (10th Cir." }, { "docid": "1488543", "title": "", "text": "grant prepetition fee claims priority in light of the fundamental distinction between pre-petition and postpetition assets and liabilities. The Debtor and the trustee filed a joint notice of appeal from the Prepetition Fee Order. After filing the joint notice of appeal, the trustee asked the bankruptcy court to reconsider the Prepetition Fee Order. On April 14, 2004, the bankruptcy court granted the trustee’s motion to reconsider, but refused to alter the Prepetition Fee Order (the “Reconsideration Order”). The joint notice of appeal was not amended to include the Reconsideration Order. Therefore, the only order before this Court is the Prepetition Fee Order. II. Appellate Jurisdiction The Bankruptcy Appellate Panel has jurisdiction over this appeal. The Prepeti tion Fee Order was timely appealed because the joint notice of appeal was filed within ten days of its entry, and became effective when the bankruptcy court entered its Reconsideration Order. The parties have consented to this Court’s jurisdiction because they have not elected to have the appeal heard by the United States District Court for the District of New Mexico. In order to take jurisdiction, we must determine whether the Prepetition Fee Order is a “final order” pursuant to 28 U.S.C. § 158(a)(1). “[A] decision is ordinarily considered final and appealable under [§ 158(a)(1)] only if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” In bankruptcy, finality is not considered within the context of the entire case; rather, “an order is final ... when it disposes of a ... discrete controversy pursued within the broader framework cast by the petition.” In the Prepetition Fee Order, the bankruptcy court conclusively resolved the allowance of and the priority afforded to Daniels’s claim for the Prepetition Fees and fixed his prepetition claim as a matter of law. No further proceedings are necessary or contemplated as to the allowance of or the priority afforded to the Prepetition Fees. Thus, the Prepetition Fee Order is a “final” order for purposes of review. III. Standard of Review The issue herein, whether attorney’s fees and costs incurred prepetition" } ]

[ { "docid": "12449204", "title": "", "text": "signals before the collision. XIII. The New Ironside sustained extensive damage to her bow stem, side and deck planking, frames, beams and was eventually beached in a sinking condition. The barge in tow of the Bonnie Ruth was not damaged. Conclusions of Law I. This Court has jurisdiction over the subject matter of this action, and venue is properly laid in the Eastern District of Louisiana. 28 U.S.C. § 1333. II. The Tug Bonnie Ruth and her tow were negligent in proceeding at an excessive rate of speed of two miles per hour when visibility was limited to less than one hundred feet by fog, being unable to stop in half the visible distance. Pilot Rules For Inland Waters, Article 16, 33 U.S.C.A. § 92; The Umbria, 1897, 166 U.S. 404, 417, 17 S.Ct. 610, 41 L.Ed. 1053; The Silverpalm (The Chicago), 9 Cir., 94 F.2d 754, 757, 1937 A.M.C. 1427, 1433; The Earnest H. Meyer (The Eureka), 9 Cir., 84 F.2d 496, 1936 A.M.C. 1179, 1180; The Manchioneal, 2 Cir., 1917, 243 F. 801, 805. III. The Tug Bonnie Ruth was negligent in failing to station a lookout at the bow of the tow, one hundred and thirty feet in length, that she was pushing ahead in a fog that reduced visibility to less than one hundred feet. Pilot Rules for Inland Waters, Article 29, 33 U.S.C.A. § 221; Gulf Oil Co. v. Socony, No. 16, 2 Cir., 162 F.2d 869, 870, 1947 A.M.C. 1031, 1032; DickTowing Co. v. The Leo, D.C.S.D.Tex., 1951, 98 F.Supp. 455, 457. IV. The Tug Bonnie Ruth and her tow were negligent in failing to keep to their right hand side of the narrow channel in a fog that reduced visibility to less than one hundred feet. Pilot Rules for Inland Waters, Art. 25, 33 U.S. C.A. § 110; Southern Pac. Co. v. U. S. (The El Sol) 2 Cir., 72 F.2d 212, 1934 A.M.C. 1185, 1188; The Texas, 3 Cir., 1915, 226 F. 897, 904; The George F. Randolph, D.C.S.D.N.Y., 1912, 200 F. 96, 97; The Yarmouth, D.C.Mass.1900, 100 F. 667, 668. V." } ]

[ { "docid": "2602216", "title": "", "text": "blown by the Pennsylvania before he heard the crash of the collision. The pilot of the Pennsylvania blew two fog signals as he was aligning his boat and tow with the signal lights on the upper or railway bridge to pass through the draw. He had no response to any signal but through the teletalk the mate out on the head of the tow told him there was a boat meeting them. The engines were immediately set full astern and the stern of the boat was steered toward the Ohio shore to avoid as much as possible a head-to-head collision. 8. Besides the mate a deckhand was on the head of the tow of the Pennsylvania when she was maneuvering for the proper alignment to pass through the bridges. At the suggestion of the mate, he ran when the collision became imminent. The Pennsylvania maintained a proper lookout. Conclusions of Law. I. From the foregoing statement of the salient facts adduced from the evidence in this case it seems a fair conclusion that the McElroy Was at fault— negligent in failing to maintain a lookout on the bow of its tow — failure to give adequate signal as it proceeded into the solid bank of fog when it undertook to pass under the bridges at full speed and operating a flotilla at full speed under the dense fog conditions which prevailed. Rules 16 and 26 of the Pilot Rules for Western Rivers are as follows— Rule 16, 33 U.S.C.A. § 341. “Every steam vessel shall, in fog, mist, falling snow, heavy rainstorms, or any other condition similarly restricting visibility, whether by day or night, go at a moderate speed. A steam vessel hearing, apparently forward of her beam, the fog signal of another vessel shall at once reduce her speed to bare steerage-way, and navigate with caution until the vessels shall have passed each other.” Rule 26, supra, § 351, Title 33 U.S.C.A., is as follows— “Nothing in sections 302-352 of this title shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any" }, { "docid": "15093845", "title": "", "text": "damages sustained by their respective vessels, and that the libels of the owner of the ship and the owner of the barge against each other and their respective vessels be dismissed. The owner of the tug does not challenge the conclusion of the District Judge that her navigators were negligent in the operation of the flotilla but, nevertheless, contends that the sole proximate cause of the collision was the negligence of the pilot of the Bornholm in ordering her slow ahead and hard left when the barge came into view a few moments before the collision and, in the alternative, that negligence on the part of the navigators of the ship was a contributing cause of the collision. The findings of fact by the District Judge, which are accepted as correct by the appellant on this appeal, may be summarized as follows. The Fort Moultrie, with the unmanned barge Bethcoal No. 1 laden with coal in tow, left the port of Norfolk, Virginia, bound for Baltimore, Maryland, at 2:15 P.M. on February 24, 1957. Upon entering the Chesapeake Bay the tug lengthened the towing hawser from 1000 feet to 1200 feet and thereafter did not shorten it before the collision which occurred in a fog the next morning at 7:57 A.M., about two miles off Point Lookout in the Chesapeake Bay, when the tug crossed the bow of the Bornholm from port to starboard and the forward starboard corner of the barge struck the port bow of the ship 4 feet aft of the stem. In the meantime, the Bornholm, en-route in ballast from Wilmington, Delaware, to Norfolk, was proceeding down the bay in charge of a licensed pilot. At about 7:20 A.M., below Point-no-Point, when she was on course 162° T and making full speed of ten knots, she encountered fog which thickened until visibility was from 100 to 200 yards. A lookout was posted and the required fog signals were sounded. Shortly after 7:34 A.M. the pilot and the mate noticed an echo on the radarscope of the Raytheon CX 1002 Series 4R radar with which the ship" }, { "docid": "15093850", "title": "", "text": "about this time that the collision occurred. The navigators of the Bornholm heard the fog signals of the Fort Moultrie, consisting of one long and two short blasts, off the port bow, at 7:52 A.M. Immediately the engines of the ship were stopped and shortly thereafter, while she was dead in the water, the tug crossed her bow, port to starboard, and then appeared off the Bornholm’s starboard bow at a distance of about 70 yards. In a few moments, while the ship was still dead in the water, the barge appeared out of the fog, about two or three points off the port bow. The ship’s pilot thereupon ordered her engines slow ahead and her rudder hard left. He then ordered the engines stopped, slow astern, and half astern, in order to avoid the collision, but the collision occurred as above described, causing the damage to both vessels. Upon this state of facts the District Judge reached the conclusion that there was no negligence on the part of the Bornholm, and if there was any error in her maneuvers immediately before the collision, it was an error in extremis and therefore excusable. As to the Fort Moultrie, he found neglect of the most glaring kind in her failure to shorten the hawser when good seamanship required it, in failing to maintain a lookout coupled with the improper and ineffective use of the radar, in failing to reduce speed when the fog became dense, and especially in proceeding at full speed through fog after hearing the signals of the ship toward the point where the master of the tug expected to find her. Since the errors of the tug cannot be denied we turn to her argument that, in spite of her mistakes, the collision was caused solely by the actions of the ship, or at least that they were in part the cause of the collision. This argument rests upon testimony tending to show that if the Bornholm had remained stationary in the water or gone astern after the tug crossed her bow and unexpectedly appeared on her starboard" }, { "docid": "12727662", "title": "", "text": "a stop within •one-half limit of visibility. The Tug Percheron, 5 Cir., 246 F.2d 135, 1957 A.M.C. 1941; The Nacoochee, 137 U.S. 330, 339, 11 S.Ct. 122, 34 L.Ed. 687, 690; The Umbria, 166 U.S. 404, 417, 17 S.Ct. 610, 41 L.Ed. 1053, 1060; Griffin on Collision, pp. 288-296. In this area the Mississippi River was a busy artery in which many vessels upbound, downbound and at anchor might be expected. The hazard of proceeding on was demonstrated by the contemporaneous decision of two other ascending vessels to come to anchor near the West bank and the determination by the Antinous Pilot and Master to do the same. That traffic made it unwise either to anchor immediately near the East bank or cut across to the West only served to increase, not decrease, the demand for vigilant caution. As she continued on, conditions got worse, not better. Notwithstanding this, she persisted in holding her speed at half ahead until within two minutes of the fateful impact. We need not minutely examine the evidence on speed. The Court fixed this at 7.1 KTW. As thus fixed it was, in our view, an immoderate speed. We agree, however, generally with Cargo that this was the irreducible minimum and there is much to indicate that speed was actually greater. This is demonstrated by the distance made good over the ground between the two known times of C — 18 and C. Of course the shorter the distance, the lower the speed. By liberal adjustments in favor of the Antinous fixing the starting point one thousand feet below the Seatrain Loader and the point of collision one-half mile above Scarsdale Light as fixed by Capt. Brummelen, the distance made good was 1^4 miles or a minimum speed over the ground of not less than 4.1 knots. Using estimates of a beginning point farther below and extending the point of collision to ■% of a mile above Scarsdale Light as the Antinous’ witnesses almost universally swore, the speed made good over the ground ranged from 4.8 to 5.8 KOG with the speed through the water" }, { "docid": "15093849", "title": "", "text": "vessels would clear starboard to starboard. At about this time the fog signals of the Bornholm were heard from a position off to the starboard and were answered by the tug. The master believing that the vessels would pass starboard to starboard continued on the same course, which was then 333° T, without reducing the full speed of 4.5 knots per hour. The visibility at the time was 200 yards and the tug could have been stopped within one-half of this distance but she proceeded ahead and crossed the bow of the Bornholm from port to. starboard at a distance of approximately 150 yards without seeing her. Shortly thereafter, at a distance of 50 to 75 yards, the master of the tug caught sight of the Bornholm at a point where he had anticipated that she would appear. The master then altered the course 20° to port and reduced the engines to slow ahead, and shortly thereafter felt a surge in the hawser and directed the tug toward the beach and anchored. It was just about this time that the collision occurred. The navigators of the Bornholm heard the fog signals of the Fort Moultrie, consisting of one long and two short blasts, off the port bow, at 7:52 A.M. Immediately the engines of the ship were stopped and shortly thereafter, while she was dead in the water, the tug crossed her bow, port to starboard, and then appeared off the Bornholm’s starboard bow at a distance of about 70 yards. In a few moments, while the ship was still dead in the water, the barge appeared out of the fog, about two or three points off the port bow. The ship’s pilot thereupon ordered her engines slow ahead and her rudder hard left. He then ordered the engines stopped, slow astern, and half astern, in order to avoid the collision, but the collision occurred as above described, causing the damage to both vessels. Upon this state of facts the District Judge reached the conclusion that there was no negligence on the part of the Bornholm, and if there was" }, { "docid": "9942621", "title": "", "text": "were stopped, and she proceeded,, alternately stopping and starting her engines. While so. proceeding, the lookout made out a low-lying object in the water close under the tug’s bow. The tug’s engines were reversed full speed, but she came into collision with what afterwards proved to be the barge St. Gabriel at an angle of about 45 degrees. The St. Gabriel was damaged considerably and later sank. In this thick fog the St. Gabriel and 17 or 18 other boats were hung up off the end of the dock. The tow was made up in 4 or 5 tiers of 4 boats in a tier, and extended down stream across the pier ends for 400 or 500 feet. The St. Gabriel was the starboard hawser boat, with 3 boats between her and the pier end, and was about 120 to 125 feet out in the river. The tug Bern was lying just inside the slip at the head tier of the tow, with her stern lapped about 10 feet on a Lehigh Valley boat, which was lying on the end of the pier. The deck hand, who was in the pilot house and in charge of the tug, admitted hearing several fog signals. He seems to have had no conception that it was incumbent upon him to give any warning of the presence of this obstructing flotilla. He admitted that the Bern was equipped with a fog bell, but he does not seem to have been aware that he was under any duty to use it in the fog conditions which prevailed. There can be no doubt as to the obligation which rested on the Bern to protect this tow. This court in the Jersey Central, 221 Fed. 625, 137 C. C. A. 349 (1915), stated the law as follows: “It is now established in this circuit that when such a situation exists—at least when there is more than a single vessel at the pier head—and fog signals indicate the approach of another vessel, there should be sounded some warning of the presence of the obstructing vessels; not navigating or" }, { "docid": "12449205", "title": "", "text": "805. III. The Tug Bonnie Ruth was negligent in failing to station a lookout at the bow of the tow, one hundred and thirty feet in length, that she was pushing ahead in a fog that reduced visibility to less than one hundred feet. Pilot Rules for Inland Waters, Article 29, 33 U.S.C.A. § 221; Gulf Oil Co. v. Socony, No. 16, 2 Cir., 162 F.2d 869, 870, 1947 A.M.C. 1031, 1032; DickTowing Co. v. The Leo, D.C.S.D.Tex., 1951, 98 F.Supp. 455, 457. IV. The Tug Bonnie Ruth and her tow were negligent in failing to keep to their right hand side of the narrow channel in a fog that reduced visibility to less than one hundred feet. Pilot Rules for Inland Waters, Art. 25, 33 U.S. C.A. § 110; Southern Pac. Co. v. U. S. (The El Sol) 2 Cir., 72 F.2d 212, 1934 A.M.C. 1185, 1188; The Texas, 3 Cir., 1915, 226 F. 897, 904; The George F. Randolph, D.C.S.D.N.Y., 1912, 200 F. 96, 97; The Yarmouth, D.C.Mass.1900, 100 F. 667, 668. V. The Tug Bonnie Ruth was negligent in .failing to sound fog signals on her whistle while proceeding in a fog that reduced visibility to less than one hundred feet. Pilot Rules for Inland Waters, Article 15(e), 33 U.S.C.A. § 91; The Domira, 2 Cir., 1932, 56 F.2d 585, 588, 1932 A.M.C. 451, 456; The Princeton, 2 Cir., 1895, 67 F. 557, 559; The Isabela, D.C.S.D.N.Y., 1924, 1 F.2d 399, 400, 1924 A.M.C. 1020; Adams v. United States, D.C.Mass.1921, 272 F. 780, 781. VI. Vessels approaching each other in fog should not exchange passing signals until each vessel is visible to the other. Managua Nav. Co. v. Aktieselskabet Borgestad, 5 Cir., 7 F.2d 990, 993, 1925 A.M.C. 1479, 1482; The Amagansett, 2 Cir., 1915, 220 F. 827, 831; The Parthian, 1 Cir., 1893, 55 F. 426, 432. VII. The failure of the New Ironside to sound fog signals on her whistle was, under the circumstances a minor fault which contributed so little to the collision that it is not entitled to consideration. The Great Republic, 1874," }, { "docid": "2602219", "title": "", "text": "lookout is, under ordinary circumstances — on the bow.” In The Choctaw, 270 F. 114, 118, the Court of Appeals of this Circuit quoted with approval the above excerpt from The Manchioneal case and said further— “There is grave doubt whether the absence of a properly posted lookout ought ever to be held inconsequential in a fog case. There is too much inherent uncertainty as to what he might have seen and heard if he had been in the right place.” In The Choctaw, supra, it was urged that a lookout 200 feet back from the bow of the tow could see as well as one on the head of the tow, and our Court said— “ * * * sometimes he could, and sometimes he could not * * *.” The Court further held that a lookout on the bow of the tow might be able to hear noises which would indicate the presence of vessels approaching under conditions where the eyes would not reflect such conditions. See also The Ottawa, 3 Wall. 268, 70 U.S. 268, 18 L.Ed. 165; The W. H. Gilbert, 6 Cir., 232 F. 547; The Tillicum, D.C., 217 F. 976 and Lea River Lines, Inc., v. The Virginia, D.C.W.D.Ky., 85 F.Supp. 89. III. Rule 16, quoted above, 33 U.S.C.A. § 341, required that the McEl roy proceed at a moderate speed because of the fog. Disregarding this rule when the head of its tow was entering into the bank of the fog where the vision of the pilot extended less than the length of the tow and increasing his speed to the maximum capacity is negligent. He undertakes to justify this by saying that he desired to pass through the draws of the two bridges as quickly as possible, thereby to avoid the possibility of colliding with other vessels. Such conduct is not justified by the requirements of the Rule. He could not bring the McElroy to a stop within the vision had ahead and increasing the maximum speed without the presence of a lookout on the head of the tow does not meet" }, { "docid": "20980987", "title": "", "text": "The Verdón, laden with a cargo of gasoline, was en route from Carteret, New Jersey, to West Haven, Connecticut. Visibility conditions were limited and a dense fog shut in by the time the vessel passed inside the breakwater into New Haven Harbor Channel. The Oteo New York had been berthed at the Monsanto Pier in New Haven and was ready for sea at 0400 of April 15, but did not depart because of dense fog. At 0615 the visibility cleared somewhat and she departed her berth. At 0640, in very light ballast, she cleared the pier and headed downstream on approximately a southern course with a favoring ebb tide of about one knot, the current being approximately the strength of the ebb tide, and with practically no wind. As she backed away from the pier and straightened out in the channel swinging to starboard, the fog closed in again, “real thick”. The captain was stationed in the wheelhouse with the chief mate, who was pilot, and a helmsman and a lookout was stationed in the bow. On the Verdón, the captain was on watch with a deckhand at the wheel and the second mate, who was not officially on watch, “watching the radar and helping around there”. There was no lookout on the bow of the Verdón, which was 180 feet forward of her pilot house, the captain relying upon his radar. The Oteo New York was also equipped with radar but her captain was confused by it and could not “make head or tails of it” at the times in question. The New Haven Channel runs approximately north and south, ranging in width from 400 feet to 500 feet and is bounded and marked on each side by buoys. Each vessel claims to have proceeded on her own starboard side of the channel. Each sounded the regulation fog signals. While proceeding up the channel, the Ver don’s master and mate claimed to have observed, on radar, a vessel which subsequently proved to be the Oteo New York, bearing dead ahead. The Verdon’s engine was immediately stopped, a fog signal" }, { "docid": "3687744", "title": "", "text": "(Comp. St. § 7889). A steam vessel violates tMs rule if she is unable to stop in time to avoid a collision, “after the approacMng vessel comes in sight, providing such approaching .vessel is herself coming at the moderate rate of speed required by law.” The Umbria, 166 U. S. 404, 417, 17 S. Ct. 610, 41 L. Ed. 1053. See, also, The Anna (C. C. A.) 297 F. 182. The evidence is in irreconcilable conflict as to the passing signals, but it is admitted that the passing signal of two blasts given by the Borgestad was heard and understood by the pilot of the Managua. There is some basis in the testimony to sustain the inference that the two single blast signals, which it is claimed were given by the Managua, were fog signals. The Managua’s pilot says they were given a minute apart, that the first one was a long blast, which very well describes a fog signal. But, assuming that the second signal of the Managua was a short blast, and therefore intended as a passing signal, it would then be in violation of pilot rule 1, which requires the ascending steamer to give the first signal. Besides, steam vessels have no right to give passing signals except when they are in sight of each other. In a fog, when they cannot see each other, fog signals only are permissible. Article 18, rule 9, Regulations for Preventing Collisions on Inland Waters, 30 Stat. 101. (Comp. St. § 7892). According to pilot rule 1, it clearly was the duly of the Managua to stop, and back if necessary, until signals for passing could be given and understood. But it is insisted in behalf of the Managua that the Borgestad was also at fault, and that at least the damages should be divided. The particulars in which the Borgestad is blamed for the collision are that she was coming full speed ahead in the fog for a period of 7 minutes while hearing the Managua’s fog whistle forward of her beam, for uot going full speed astern after the" }, { "docid": "18439354", "title": "", "text": "RIVES, Circuit Judge. This appeal is from an interlocutory decree in admiralty finding two vessels in a collision at fault and directing that the damages be divided. The collision occurred in the Houston Ship Channel on December 12, 1955, at 11:30 P.M. The Channel is a narrow, busy one about 400 feet wide. The S/S Hopkins, an ocean-going tank vessel, was proceeding inland and the Tug Maye was going south pushing a flotilla consisting of two empty barges end-to-end, the after barge being secured along the portside of the Tug. Shortly before the collision, a heavy, dense fog had set in and visibility was poor — it was zero at the time of the collision. The angle of impact showed that the 260-foot tug and tow were broadside in the 400-foot channel. The front barge, Barge No. 121, was sunk, and nearby Beacon No. 70 was damaged. The district court held that each vessel was substantially at fault and found specifically : “I find that it is a clear case of mutual fault. “There was fault on the part of the Hopkins in proceeding at an excessive rate of speed under the circumstances, in failing to navigate with caution, in failing to keep a proper lookout, and in failing to stop immediately upon hearing fog signals ahead of her after knowing the presence, but not the position, of vessels in the channel. “The tug Maye and her tow were at fault in not knowing her position in the channel, in displaying improper lights in her tow, in violating the narrow channel rule, in failing to keep a proper lookout, and in failing to advise the Hopkins of her position with a searchlight. “Each of the faults above set out that were committed by the respective parties was a major, gross, serious, substantial fault, and a decisive one that directly contributed to the collision in question.” The libelant, owner of the Tug Maye and Barge No. 121, appeals from this ruling, contending that gross negligence of the S/S Hopkins was the sole cause of the collision, and that faults of the" }, { "docid": "2602217", "title": "", "text": "Was at fault— negligent in failing to maintain a lookout on the bow of its tow — failure to give adequate signal as it proceeded into the solid bank of fog when it undertook to pass under the bridges at full speed and operating a flotilla at full speed under the dense fog conditions which prevailed. Rules 16 and 26 of the Pilot Rules for Western Rivers are as follows— Rule 16, 33 U.S.C.A. § 341. “Every steam vessel shall, in fog, mist, falling snow, heavy rainstorms, or any other condition similarly restricting visibility, whether by day or night, go at a moderate speed. A steam vessel hearing, apparently forward of her beam, the fog signal of another vessel shall at once reduce her speed to bare steerage-way, and navigate with caution until the vessels shall have passed each other.” Rule 26, supra, § 351, Title 33 U.S.C.A., is as follows— “Nothing in sections 302-352 of this title shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.” “When one vessel is grossly at fault, that vessel will be held solely at fault unless evidence establishing the fault of the other vessel is clear and indisputable.” Panama Transport Company v. United States, D.C., 102 F.Supp. 958, 961. II. It is undisputed by counsel for libelant that the McElroy had no lookout on the bow of the tow and that no member of the crew was on the tow after the “topping around” of the boiler barge had been finished and this was accomplished when the McElroy was about half way from the mouth of the Kanawha to the lower or highway bridge. In The Manchioneal, 2 Cir., 243 F. 801, 805, the Court said— “ * * * by the overwhelming weight of authority it is settled that the proper place for a" }, { "docid": "23215573", "title": "", "text": "all the steam of her two boilers, capable of sending her ahead at 18 knots, the Chicago cannot be brought to \"a standstill until she has proceeded at least 475 yards through the water. One of the very long-established principles of law in maritime navigation is that a vessel shall not proceed in a fog at a speed at which she cannot be stopped dead in the water in one-half the visibility before her. The Chattahooche, 173 U.S. 540, 548, 19 S.Ct. 491, 43 L.Ed. 801; The Umbria, 166 U.S. 404, 421, 17 S.Ct. 610, 41 L.Ed. 1053; The Lepanto (D.C.) 21 F. 651, 659; The Old Colony (D.C.) 52 F.(2d) 992, 993; The Ernest H. Meyer (C.C.A.9) 84 F.(2d) 496, 497. This principle would require them to proceed at a speed enabling the Chicago at least to stop in 25 yards — 75 feet. Here, this entire group of vessels, with the Chicago leading, was proceeding in the lane of heavy traffic of merchant vessels at many times their legal speed and hence above the limit of their stopping distance —the Chicago at 19 times that limit. This would be gross recklessness for a single vessel, but, when we consider the movement of the four vessels towards an oncoming opposing vessel in the fog, its recklessness is greatly heightened. Probably the most imperative mandate of the International Rules is contained in article 16, requiring a vessel to stop her engines at once upon hearing a vessel in the fog forward of her beam. . “Article 16. Speed in fog, etc. * * * “A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over.” 33 U.S.C.A. § 92. Lie v. San Francisco & P. S. S. Co. (The Beaver), 243 U.S. 291, 296, 37 S.Ct. 270, 61 L.Ed. 726. These four cruisers were but a distance of 600 yards apart. It has long been" }, { "docid": "15093846", "title": "", "text": "entering the Chesapeake Bay the tug lengthened the towing hawser from 1000 feet to 1200 feet and thereafter did not shorten it before the collision which occurred in a fog the next morning at 7:57 A.M., about two miles off Point Lookout in the Chesapeake Bay, when the tug crossed the bow of the Bornholm from port to starboard and the forward starboard corner of the barge struck the port bow of the ship 4 feet aft of the stem. In the meantime, the Bornholm, en-route in ballast from Wilmington, Delaware, to Norfolk, was proceeding down the bay in charge of a licensed pilot. At about 7:20 A.M., below Point-no-Point, when she was on course 162° T and making full speed of ten knots, she encountered fog which thickened until visibility was from 100 to 200 yards. A lookout was posted and the required fog signals were sounded. Shortly after 7:34 A.M. the pilot and the mate noticed an echo on the radarscope of the Raytheon CX 1002 Series 4R radar with which the ship was equipped. By changing the range of the instrument from 15 miles to 5 miles they were able to fix the object ahead, which later proved to be the Fort Moultrie, at a distance of 4% miles with a bearing of approximately 2° off the ship’s port bow. At 7:36 A.M. they altered their course 8° to the right and reduced the speed of the vessel to half ahead. At 7:46 A.M. the course of the ship was altered an additional 10° to the right to 180° T. At the same time the speed of the ship was reduced to slow ahead at 4 knots per hour. The radar then showed that the Fort Moultrie was bearing 22%° off the Bornholm’s bow. About 6 minutes later,, at 7:52 A.M., when the Fort Moultrie was at a distance of 1 mile, the echo disappeared from the radarscope. At no time during these operations did the navigators of the ship attempt to obtain a radar plot so as to determine the course and speed of the tug." }, { "docid": "12727661", "title": "", "text": "though she had no direct liability to Cargo under the Carriage of Goods by Sea Act, 46 U.S.C.A. §§ 1300-1315. To admit sole fault and withdraw her strength from the side of her Cargo with whom, as an ally, she had been making common and vigorous cause up to date, might eliminate that risk altogether, especially so since, as the agreement permits, if this tactical maneuver were to fail in its objective, the Argentina could still have all she would have ever gotten. It was an admission of fault only so long as it worked. As disturbing as some of these implications may be, we find it unnecessary to determine whether they would make related findings clearly erroneous. This is so because in the setting of which these and other circumstances were a part, the speed of the Antinous was plainly immoderate. Without a doubt the circumstances called for the application of the traditional rule of sight by which the vessel must proceed at a rate of speed which will allow her to come to a stop within •one-half limit of visibility. The Tug Percheron, 5 Cir., 246 F.2d 135, 1957 A.M.C. 1941; The Nacoochee, 137 U.S. 330, 339, 11 S.Ct. 122, 34 L.Ed. 687, 690; The Umbria, 166 U.S. 404, 417, 17 S.Ct. 610, 41 L.Ed. 1053, 1060; Griffin on Collision, pp. 288-296. In this area the Mississippi River was a busy artery in which many vessels upbound, downbound and at anchor might be expected. The hazard of proceeding on was demonstrated by the contemporaneous decision of two other ascending vessels to come to anchor near the West bank and the determination by the Antinous Pilot and Master to do the same. That traffic made it unwise either to anchor immediately near the East bank or cut across to the West only served to increase, not decrease, the demand for vigilant caution. As she continued on, conditions got worse, not better. Notwithstanding this, she persisted in holding her speed at half ahead until within two minutes of the fateful impact. We need not minutely examine the evidence on speed." }, { "docid": "7015920", "title": "", "text": "held that “in reviewing a judgment of a trial court, sitting without a jury in admiralty, the Court of Appeals may not set aside the judgment below unless it is clearly erroneous.” See Chaney v. City of Galveston, 368 F.2d 774, 776 (5th Cir. 1966) ; accord, Termar Navigation Co., Inc. v. SS POLANICA, 529 F.2d 1166 (5th Cir. 1976), cert. denied, 429 U.S. 862, 97 S.Ct. 165, 50 L.Ed. 140 (1976). II. THE DISTRICT COURT’S FINDINGS Equal Fault The District Court found that SOCRATES and REFINER together caused the accident by proceeding “in weather conditions which dictated utmost caution and prudence, with courses of action born of their own inattention to or misapprehension of the situation as it was.” 526 F.Supp. at 1339, — A.M.C. at -. REFINER proceeded at excessive speed in a dense fog toward an unplotted radar target lying across its bow which did not answer its radio calls. SOCRATES, lying in the edge of a narrow and much travelled waterway, in dense fog, neglected adequately to verify or to advise other ships of its position. Pilot Moore believed he could pass the object before him without incident. Captain Scott apparently believed in good faith he was out of the channel. Both were wrong, the Court concluded, so both vessels must share the blame for the result. 1. Status of the Vessels The Inland Rules of the Road, 33 U.S.C. § 154 et seq., which apply to this collision, supply the following definition: “A vessel is ‘underway’ within the meaning of these rules when she is not at anchor, or made fast to the shore, or aground.” REFINER was a vessel underway. The status of SOCRATES is more difficult to ascertain. Allied Towing asserts that the tug was aground and therefore not required to sound fog signals, post a lookout, or maintain a listening watch. Such a status, moreover, would entitle it to the presumption of fault which arises whenever a moving vessel strikes one moored or anchored. Allied Towing concedes that SOCRATES was neither at anchor nor made fast to the shore. The sole category" }, { "docid": "2602220", "title": "", "text": "70 U.S. 268, 18 L.Ed. 165; The W. H. Gilbert, 6 Cir., 232 F. 547; The Tillicum, D.C., 217 F. 976 and Lea River Lines, Inc., v. The Virginia, D.C.W.D.Ky., 85 F.Supp. 89. III. Rule 16, quoted above, 33 U.S.C.A. § 341, required that the McEl roy proceed at a moderate speed because of the fog. Disregarding this rule when the head of its tow was entering into the bank of the fog where the vision of the pilot extended less than the length of the tow and increasing his speed to the maximum capacity is negligent. He undertakes to justify this by saying that he desired to pass through the draws of the two bridges as quickly as possible, thereby to avoid the possibility of colliding with other vessels. Such conduct is not justified by the requirements of the Rule. He could not bring the McElroy to a stop within the vision had ahead and increasing the maximum speed without the presence of a lookout on the head of the tow does not meet the requirements of good piloting. The John F. Lewis, D. C., 51 F.2d 274, 275; The Ernest H. Meyer, 9 Cir., 84 F.2d 496 and The Silver Palm, 9 Cir., 94 F.2d 754. IV. The McElroy was remiss in the failure of her pilot to sound adequate signals. For almost the entire distance from the mouth of the Kanawha River to the lower bridge, the pilot could see the fog descending in a solid bank down river and it was his duty to give adequate signals for the protection of vessels hidden in the fog, although the McElroy at that time had not passed into the fog. The Papoose, 2 Cir., 85 F.2d 54. It is reasonable to presume that had the pilot not been engaged in operating the light so as to enable the mate and deckhands to “top the boiler barge” this precaution would have been observed, Counsel for libelant earnestly insists that the presence of the teletalk on the McElroy excuses its failure to have a member of its crew posted as" }, { "docid": "3456313", "title": "", "text": "by reason of the following: (1) In kicking her engines ahead at or about 8:26; (2) In failing to navigate with caution after hearing the signal of the Burgan; (3) In failing to reverse engines prior to 8:29; (4) In failing to keep a lookout; (5) In failing to make use of radar from shortly after 8:22 until the time of the collision. Discussion The Burgan’s negligence both in respect to its speed and the starboard turn which brought it across the bow of the Bergechief is, in my opinion, sufficiently patent to require no discussion. It is well settled that in a fog a vessel must proceed at a moderate rate of speed, and upon hearing the signal of an approaching vessel ahead must stop its engines and navigate with caution. Anglo-Saxon Petroleum Co., Limited of London, England v. United States, 2 Cir., 1955, 224 F.2d 86; Johnston-Warren Lines, Limited v. United States, 2 Cir., 1952, 196 F.2d 689; 33 U.S.C.A. § 145n (b); 33 U.S.C.A. § 192. The Burgan, in my opinion, violated each of these rules. I am, however, not persuaded that the outbound Burgan was at fault in failing to proceed on the course of 130° advised by pilot Lubee, nor am I persuaded that the Bergechief was at fault in using a course of 307° rather than some other inbound course. I do not believe that the courses used by the Burgan and the Bergechief were prohibited by the “United States Coast Pilot” (Exhibit O) or that their use, standing alone, was a contributing cause of the collision. The Bergechief seeks to place full responsibility for the collision on the Bur-gan, contending that none of its acts contributed to the accident. The Berge-chief contends that: (1) Bergechief’s speed and navigation were under all of the prevailing circumstances within the dictates of good seamanship ; (2) Absence of a bow lookout on the Bergechief did not contribute to the collision; (3) The Bergechief’s decision not to watch her radar during the period after she heard the fog signal of the other vessel up to the collision" }, { "docid": "23215572", "title": "", "text": "proceeded. The deck log of the Chicago shows that from midnight to 7 o’clock in the morning prior to the collision, the visibility was the lowest recorded under the naval system. For each hour it shows the visibility at zero; that is, a 'visibility of less than 50 yards. This figure, as explained by the table printed in the logbook, means: “0. Prominent objects not visible at 50 yards.” (Resp.Ex.No. 24.) The speed then maintained by the cruisers, the Vice Admiral testifies and the log shows, was over 12 knots through the water. The fog was so dense that, as the Admiral testifies, the distances between the succeeding and the preceding invisible members of the squadron had to be maintained by observing a spar towed by the vessel ahead which throws up a spray in the water. (Ap. 127). An experiment with, a sister ship of the Chicago, conducted by the Navy a few days before the trial below, shows that at a 12 knot speed, even if promptly exerting the use in reversing of all the steam of her two boilers, capable of sending her ahead at 18 knots, the Chicago cannot be brought to \"a standstill until she has proceeded at least 475 yards through the water. One of the very long-established principles of law in maritime navigation is that a vessel shall not proceed in a fog at a speed at which she cannot be stopped dead in the water in one-half the visibility before her. The Chattahooche, 173 U.S. 540, 548, 19 S.Ct. 491, 43 L.Ed. 801; The Umbria, 166 U.S. 404, 421, 17 S.Ct. 610, 41 L.Ed. 1053; The Lepanto (D.C.) 21 F. 651, 659; The Old Colony (D.C.) 52 F.(2d) 992, 993; The Ernest H. Meyer (C.C.A.9) 84 F.(2d) 496, 497. This principle would require them to proceed at a speed enabling the Chicago at least to stop in 25 yards — 75 feet. Here, this entire group of vessels, with the Chicago leading, was proceeding in the lane of heavy traffic of merchant vessels at many times their legal speed and hence above" }, { "docid": "3687743", "title": "", "text": "fault. It cannot be doubted that it was her duty to maintain a lookout in the fog. Ariadne, 13 Wall. 475, 20 L. Ed. 542. It is doubtless true that her pilot thought the fog signals of the Borgestad came from the port side of Ms ship, but the presence of a lookout in a better position to hear might well have resulted in correcting the pilot’s mistake and preventing the maneuver to starboard, where the Borgestad actually was. WMle there is a conflict in the testimony of the witnesses as to- the speed of the Managua in the fog, yet the physical fact that she ran into the bank with foree enough to be raised up, and then to. slide off with sufficient momentum remaining to run still further and into another vessel, sustains the inference that she was not being operated at a moderate rate of speed. She was therefore violating rule 13 of the Pilot Rules for the Mississippi River, which is practically the same as article 16 of the International Rules (Comp. St. § 7889). A steam vessel violates tMs rule if she is unable to stop in time to avoid a collision, “after the approacMng vessel comes in sight, providing such approaching .vessel is herself coming at the moderate rate of speed required by law.” The Umbria, 166 U. S. 404, 417, 17 S. Ct. 610, 41 L. Ed. 1053. See, also, The Anna (C. C. A.) 297 F. 182. The evidence is in irreconcilable conflict as to the passing signals, but it is admitted that the passing signal of two blasts given by the Borgestad was heard and understood by the pilot of the Managua. There is some basis in the testimony to sustain the inference that the two single blast signals, which it is claimed were given by the Managua, were fog signals. The Managua’s pilot says they were given a minute apart, that the first one was a long blast, which very well describes a fog signal. But, assuming that the second signal of the Managua was a short blast, and therefore" } ]

[ { "docid": "22863579", "title": "", "text": "Lawbence, Judge: Round forms of an aluminum alloy /i of am inch in diameter in straight lengths of 88% and 98% inches were classified by the collector of customs as wire, pursuant to the provision im paragraph 316 (a) of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 316 (a)), as modified, by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802, and assessed with duty at the rate of 15 per centum ad valorem. The plaintiff (importer) claims that the merchandise consists of aluminum rods and that it should be classified as such in 'accordance with the provisions of paragraph 374 of said act (19 U. S. O. § 1001, par. 374), as modified by the trade agreement, supra, and dutiable at 3 cents per pound. The Statutes Paragraph 316 (a), as modified, supra: * * if: * ' * ife * All wire composed of iron, steel, or other metal, not specially provided for (except gold, silver, platinum, tungsten, or molybdenum)___ 15% ad val. Paragraph 374, as modified, supra: Aluminum, aluminum scrap, and alloys, (except those provided for in paragraph 302, Tariff Act of 1930) in which aluminum is the component material of chief value: ‡ ‡ ‡ if: ‡ ‡ In coils, plates, sheets, bars, rods, circles, disks, blanks, strips, rectangles, and squares_ 3(5 per lb. The following exhibits, with the exception of exhibit 8 for identification, were offered in .evidence, their admissibility being reserved for a ruling .by a full bench: By the Plaintiee Illustrative exhibit 1, approximately 22% inches long, representing the imported merchandise, except for length. Collective exhibit 2, a commercial analysis- of the material from the “suppliers abroad.” Collective illustrative exhibit 3, several pieces of aluminum in straight lengths of the character of exhibit 1, but varying from.% inch to 1 inch in' diameter. Collective exhibit 4, consisting of two types of wire, round and flat, in coils, which, for convenience, were marked illustrative exhibits 4-A and 4-B, respectively. Illustrative exhibit 5 for identification, a catalog of the Adam Metal Supply, Inc., a warehouse" } ]

[ { "docid": "5144200", "title": "", "text": "as brass rods in paragraph 381 of the tariff act, as modified, supra. It is the contention of plaintiff that no distinction should be drawn for classification purposes between the hexagonal brass rods and those of irregular shape, such as exhibits 1 through 5, urging that they are all within the common meaning of the word “rod,” as judicially defined by this court in Mohawk Iron & Steel Co. v. United States, 30 Cust. Ct. 274, C. D. 1533. Plaintiff further contends that brass rods, such as or similar to exhibits 1 through 5, were being manufactured and sold in the United States prior-to June 17, 1930, when the present tariff law was enacted, under the designation “rod,” facts which must be considered in ascertaining the congressional intendment in providing for brass rods in paragraph 381, supra. Illustrative exhibit 7, a sample of brass material in rectangular form, three-fourths of 1 inch by one-half inch in cross-section, was received in evidence and represents an article admittedly within the provision for brass bars in paragraph 381, as modified, supra. A fair summary of the unrebutted testimony of plaintiff’s six well-qualified witnesses, some of whom had experience dating back to 1915, establishes that the subject merchandise was produced by the extrusion of a relatively short and thick billet, 2 feet long, through a die which produced material 40 to 60 feet long. These lengths were then cut into pieces measuring 7 and 12 feet, portions of which are in evidence as exhibits 1 through 5. The record also discloses that hexagonal bars such as exhibit 6 and merchandise like exhibit 7 were produced by the same process as was the merchandise repre sented by exhibits 1 through 5. Furthermore, it is not disputed that the imported articles are used in the fabrication of automotive fittings of various shapes and sizes represented by exhibits 12 through 24. There is also testimony which is unrefuted to the effect that merchandise represented by exhibits 1 through 7 was known and sold in the United States prior to and since 1930 as brass rods or brass" }, { "docid": "22863585", "title": "", "text": "point they maintain stocks on hand of material that they are distributing to the trade”; that it deals in aluminum exclusively— “All types, what are commonly referred to as ‘semis’ aluminum sheets, rods, wire, foil, coils, circulars, extruded shapes.” Sautter stated that he had been with these two corporations approximately 2 years and been in business dealing in aluminum for about 12 years. He testified to his familiarity with the merchandise in issue; that it is similar to the pieces of material received in evidence as exhibit 3; and that it is known in his business as aluminum rods by which name it is sold to his customers. It appears that exhibit 3 consists of various items, ranging from /(-inch to 1 inch in diameter, cut from straight pieces originally produced in lengths from 12 feet to 24 feet. He described the articles as raw products which have to be fabricated in some way before they can be used — for instance, on automatic screw machines for turning out screws, bolts, nuts, stems, and shafts. Further, the witness testified— This rod in the size and dimensions as indicated here in the exhibits that they have on the desk there, (ind.) and in larger diameters than those exhibited there to turn out parts which are commonly used in some cases even for hubs of propellers' on aircraft. In some cases they bend the rod and might use it in this form bent into shap [sic] as suggested before, for television antennas. Judge Rao: Are those rods pliable? Witness: Well, they all can be bent, depending upon the diameter, commensurate amount of pressure is required to bend them but they all can be bent. The witness was then shown exhibits 4-A and 4-B representing what he sold as round wire and flat wire, respectively. In describing the difference between aluminum rod and aluminum wire, the witness testified— Well, basically the primary difference is one is in straight lengths and one is in' coils. The rod is in straight lengths I would say not exceeding 24 feet whereas wire not only is in" }, { "docid": "16715213", "title": "", "text": "Opinion by Oliver, C.J. In accordance with stipulation of counsel that the merchandise consists of chord organs and parts thereof similar in all material respects to those the subject of Excelsior Accordions, Inc. v. United States (48 Cust. Ct. 148, C.D. 2328), the claim of the plaintiff was sustained." }, { "docid": "10945875", "title": "", "text": "College, with a bachelor’s degree in chemical engineering. His activities at the Reynolds Metal Co. enabled him to acquire an intimate knowledge of the production and sales organization of the Reynolds Co. Based upon his knowledge and experience, it was his opinion that the articles represented by exhibits 1 through 9 were neither rods nor bars but were tubing. A rod “would have to be a cross-section of solid cross-section in excess of fs inch diameter. It would have to be round. * * * It would have to be solid.” For the exhibits to constitute bars, it would be necessary for them to be square or rectangular in shape, and they would have to be solid in cross-section. It is clear from the testimony of all of the witnesses that there is no substantial difference of opinion as to the character, material of which made, the method of production (either by drawing or the extrusion process), and utility of the subject merchandise. The only conflict in the testimony concerns the name or designation of the merchandise as commonly and commercially understood, assuming as we may that the common and commercial meanings are the same in the absence of an approved, established commercial meaning of the term differing from the common meaning of the name by which the articles are known. Since counsel for plaintiff has stated in the record that “I am not making the claim for commercial designation” of the terms “bars” and “rods” of aluminum, it becomes important for us to determine whether the merchandise, represented by exhibits 1 through 9, is commonly known as bars or rods. It is well settled that testimony of tradespeople may be received in an effort to establish the common meaning of tariff terms. However, it is advisory only but not controlling. Upon this phase of case, the testimony on behalf of plaintiff is so indefinite concerning the name or names by which the products represented by exhibits 1 through 9 are known that it does not aid the court materially in clarifying the meaning of the terms “rods” and “bars”" }, { "docid": "22863613", "title": "", "text": "“wire” and “rods” have a uniform, definite, and general meaning in trade and commerce different from that applied to those terms in common speech., John Kradensld, who had been associated with the Aluminum Co. of America for 28 years, testified that for the past 20 years he hgd been employed either as administrative sales manager or assistant administrative sales manager, and that in June 1930, Alcoa was the. only company he knew of which was engaged in the manufacture and sale of aluminum wire throughout the United States.. When asked.to define the term “aluminum wire,” he stated— Alcoa’s determination of aluminum wire is any material or metal under %'■' tliick. That constitutes wire. It doesn’t make any difference whether it is straight, coiled, round or rectangle shaped, the definite break is anything under that is classified by Alcoa'as wire.- According to this witness merchandise like exhibit 1, the imported commodity, was known, as aluminum wire “Because it is under With respect to exhibit 3, he stated that any of the items which measure % inch or under would be aluminum wire and above that-would be aluminum rod. Exhibit 4-A he identified as wire and exhibit -4-B as flattened wire. • - Kradensld testified that prior to 1932 he was known as an “administrative administrator” and that, while it was his responsibility to screen all orders that came into the office, he did no direct selling prior to 1932. WTien asked if he had ever heard of material like exhibit 1 being' described as rod, he admitted that he had “but that is not Alcoa’s determination.” It also appears from the testimony of Kradensld that in his opinion the reason why Alcoa drew the distinction between wire and rod at %-inch diameter “was an arbitrary setup to create some breaking point between rod and wire,” and the witness was unable to say whether or not it was followed by companies other than Alcoa. It is obvious that the testimony of Kradenski falls far short of establishing a commercial designation or meaning of the terms “wire” and “rods” which would meet the" }, { "docid": "10944900", "title": "", "text": "Opinion by Oliver, J. In accordance with stipulation of counsel that the merchandise consists of plastic paperweights similar in all material respects to those the subject of Abstract 67488, the claim of the plaintiff was sustained." }, { "docid": "5144202", "title": "", "text": "bars. In support of its contention that the merchandise here in controversy should be classified in paragraph 381, as modified, supra, plaintiff relies upon our decisions in Mohawk Iron & Steel Co., supra, and The Davis-Bilt Products Co. v. United States, 28 Cust. Ct. 332, C. D. 1432. In the Mohawk case, supra, we held that certain round forms of an aluminum alloy, %2 of an inch in diameter in straight lengths of 88K and 98K inches, were subject to classification as aluminum rods within the common meaning of that term and, hence, were not dutiable as wire. The defendant has rightfully pointed out that the issue in that case is not the same as the one presented here. In the Mohawk case, as above indicated, the competition was between the words “rods” and “wire,” while here, the competition is between the words “rods” or “bars” on the one hand and articles in chief value of brass on the other. However, what we said in the Mohawk case about the common meaning of the term “rod” would apply with equal force in the instant case. In the decision referred to, we quoted the following definitions of “rod”: Webster’s New International Dictionary, 1930 edition— rod, n. * * * 1. A straight and slender stick; * * * hence, any slender bar, as of wood or metal. * * * Funk & Wagnalls New Standard Dictionary of the English Language, 1942 edition— rod, n. 1. A shoot or twig of any woody plant; a straight, slim piece.of wood or other material; * * * To the foregoing, we add the following— Knight’s American Mechanical Dictionary (1876)— Rod. A straight, slender piece of wood or metal, as the ramrod, wiping-rod, rifling-rod, used by gunsmiths and armories. ‡ # ‡ * * ❖ * A connecting piece, as that between the cross-head of an engine and a crank. A connecting-rod. And so on. Audel’s Mechanical Dictionary (1942)— Rod. — 1. A wand, stick or long slender bar of any material, wood, iron, brass, steel, etc. We have examined the Davis-Bilt case cited by" }, { "docid": "23335884", "title": "", "text": "International Trade. After a two-day trial, that court issued a ruling affirming Customs’ decision, holding (1) that while the common-law “substantial transformation” test established by United States v. Gibson-Thomsen Co., 27 C.C.P.A. 267, 1940 WL 4085 (1940), was applicable to the “transformation” requirement in General Note 3(c)(vii)(B)(2), the imported merchandise did not undergo such a transformation, and (2) that the principle of de minimis non curat lex did not apply to the terms of that subsection. See Alcan, 986 F.Supp. at 1436. Alcan appealed to this court. Our jurisdiction is pursuant to 28 U.S.C. § 1295(a)(5) (1994). We review the Court of International Trade’s interpretation of statutory provisions de novo. See Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423, 1426 (Fed.Cir.1997); Rollerblade, Inc. v. United States, 112 F.3d 481, 483 (Fed.Cir.1997). B The imported goods, aluminum ingots, are a common bulk form of aluminum alloy, weighing on the order of 25,000 pounds each. Aluminum purchased in ingot form is generally intended to be further processed into wrought aluminum products as varied as aluminum cans and airplane skins. During the production process, a small amount of “grain refiner” is fed into the molten aluminum, primarily to prevent cracking during the ingot casting process or transportation. The ingots involved in this dispute contained grain refiner purchased in rod form and originating outside of Canada, forming the sole basis of Customs’ rejection of preferential trade status. The parties do not dispute that the materials used to produce the aluminum alloy ingots — apart from the grain refiner — underwent the requisite transformation in Canada to earn the reduced merchandise processing fee. The parties also stipulate that the amount of grain refiner used is trivially small: less than one percent, by weight and value, of the total aluminum ingots. The grain refiner itself is almost entirely aluminum, with less than six percent of its weight coming from the active ingredients, titanium and boron. When introduced into the molten aluminum alloy, the titanium and boron form TÍB2 molecules, which act as nuclei for grain formation during solidification, while the aluminum component of" }, { "docid": "4863321", "title": "", "text": "tariff classification of the scrap being valued. As a result, the court is unable to sustain a finding that this choice constituted the best available information on the record. III. Conclusion and Order For the reasons discussed in the foregoing, and after consideration of all submissions made in this action, the court concludes that Commerce did not act in accordance with law when it calculated CPZ’s dumping margin. Commerce acted contrary to law in determining the U.S. price of CPZ’s subject merchandise and in determining surrogate values for alloy steel wire rod, alloy steel bar, and steel scrap from production of cages. The court, therefore, will remand the Final Results to Commerce for redetermination consistent with this Opinion and Order. ORDER Upon review of the Final Results and all papers and proceedings herein, it is hereby ORDERED that plaintiffs Rule 56.2 Motion for Judgment upon the Agency Record be, and hereby is, GRANTED in part and DENIED in part; it is further ORDERED that Commerce shall issue upon remand a redetermination (“Remand Redetermination”) that complies in all respects with this Opinion and Order, is based on determinations that are supported by substantial record evidence, and is in all respects in accordance with law; it is further ORDERED that Commerce, in preparing the Remand Redetermination in accordance with this Opinion and Order, shall redetermine the margin for Peer Bearing Company-Changshan (“CPZ”) based on redetermined U.S. prices of CPZ’s subject merchandise that are calculated according to a method that complies with law; it is further ORDERED that Commerce may reopen the record to obtain additional information in preparation for issuing the Remand Re-determination, but if it does not do so and does not obtain price information qualifying for use as starting prices for a determination of export prices according to 19 U.S.C. § 1677a(a), then, as required by law, it must determine the U.S. prices on a constructed export price basis, whether or not it relies on its authority to use facts otherwise available under 19 U.S.C. § 1677e(a); it is further ORDERED that Commerce, if it reopens the record and collects" }, { "docid": "10945867", "title": "", "text": "part of this decision, were consolidated for trial. Plaintiff, by its protests, invokes the provisions of paragraph 374 of said act (19 U.S.C. § 1001, par. 374), as modified by said general agreement, supra, which provides for aluminum and alloys in which aluminum is the component material of chief value “in coils, plates, sheets, bars, rods, circles, disks, blanks, strips, rectangles, and squares,” which are made dutiable at 3 cents per pound. It may be noted here that the items in controversy are generally referred to on the invoices as aluminum tubes or as aluminum alloy tubing and, moreover, the articles are described on the entries as “aluminum tubing.” Plaintiff introduced the testimony of two witnesses and defendant called one. Plaintiff’s first witness, Maurice Norman Katz, had been vice president of the plaintiff company since 1946 and described his duties as “general manager of over-all operations of the purchasing and storing and sale of aluminum, copper and brass mill products.” He received a bachelor of science degree in metallurgy from the Massachusetts Institute of Technology and, as a result of his educational background and practical experience in the purchasing, warehousing, storage, and sale of aluminum, copper, and brass mill products, such as sheets, circles, structures, bars, rods, tubes, et cetera, he possessed an intimate knowledge of the articles in controversy' — their physical, mechanical, and chemical properties as well as their utility. After importation, the subject merchandise is further manufactured by forging, bending, riveting or threading, polishing, and machining for use in the manufacture of clothesracks, TY antennas, chairs, tables, clothes closet rods, bicycles, playpens, lawn furniture, and some other articles. Having listed the factories or mills in Europe as well as in the United States where these aluminum products are made, Katz testified that the processes of manufacture are substantially the same in all mills. As stated by the witness, “There are two general methods of producing in a mill these types of tubes.” In both instances, however, the millman begins by taking an aluminum alloy extrusion ingot which is generally a round cylindrical slab of aluminum alloy. These" }, { "docid": "23335885", "title": "", "text": "aluminum cans and airplane skins. During the production process, a small amount of “grain refiner” is fed into the molten aluminum, primarily to prevent cracking during the ingot casting process or transportation. The ingots involved in this dispute contained grain refiner purchased in rod form and originating outside of Canada, forming the sole basis of Customs’ rejection of preferential trade status. The parties do not dispute that the materials used to produce the aluminum alloy ingots — apart from the grain refiner — underwent the requisite transformation in Canada to earn the reduced merchandise processing fee. The parties also stipulate that the amount of grain refiner used is trivially small: less than one percent, by weight and value, of the total aluminum ingots. The grain refiner itself is almost entirely aluminum, with less than six percent of its weight coming from the active ingredients, titanium and boron. When introduced into the molten aluminum alloy, the titanium and boron form TÍB2 molecules, which act as nuclei for grain formation during solidification, while the aluminum component of the grain refiner acts merely as a carrier that helps disperse the TÍB2 molecules throughout the molten alloy. The resulting fine-grained aluminum alloy ingot is somewhat stronger than ingots produced without grain refiner and thus more resistant to cracking during production and shipment. C The relevant portion of HTSUS General Note 3(e)(vii)(2)(I) (1993) allowed goods to be classified as “originating in the territory of Canada” (and thus subject to lower merchandise processing fees) if they “ha[d] been transformed in the territory of Canada and/or the United States, so as to be subject to a change in tariff classification as described in the rules of subdivision (e)(vii)(R) of this note[.]” Subdivision (c)(vii)(R)(15) defined a qualifying tariff shift as “[a] change from one chapter to another” within Chapters 72 to 83, and (e)(vii)(R)(15)(rr) allowed a change to a heading between 7604 and 7606 from any heading outside that group. Under the version of the HTSUS then in effect, grain refiner in rod form was classifiable under heading 7604 (Chapter 76), while the aluminum ingots themselves were classifiable" }, { "docid": "10945866", "title": "", "text": "Lawrence, Judge: In this cause of action, the question for our determination is whether certain aluminum products should be classified for tariff purposes as aluminum bars or rods. The imported items in controversy, represented b.y exhibits 1 through 9, with one exception, are cylindrical shapes, hollow in form, having diameters ranging from three-eighths of 1 inch to about 2 inches and in lengths from approximately 34 inches to 21 feet. The exception, exhibit 7, is a hollow rectangular shape approximately three-fourths of 1 inch square and 23 inches long. In its imported condition, however, it was 12 feet long. The collector of customs classified the merchandise as articles, not specially provided for, composed in chief value of aluminum, and duty was imposed thereon at the rate of 22% per centum ad valorem in paragraph 397 of the Tariff Act of 1930 (19 U.S.O. § 1001, par. 397), as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802. Four protests, which are enumerated in the attached schedule and made a part of this decision, were consolidated for trial. Plaintiff, by its protests, invokes the provisions of paragraph 374 of said act (19 U.S.C. § 1001, par. 374), as modified by said general agreement, supra, which provides for aluminum and alloys in which aluminum is the component material of chief value “in coils, plates, sheets, bars, rods, circles, disks, blanks, strips, rectangles, and squares,” which are made dutiable at 3 cents per pound. It may be noted here that the items in controversy are generally referred to on the invoices as aluminum tubes or as aluminum alloy tubing and, moreover, the articles are described on the entries as “aluminum tubing.” Plaintiff introduced the testimony of two witnesses and defendant called one. Plaintiff’s first witness, Maurice Norman Katz, had been vice president of the plaintiff company since 1946 and described his duties as “general manager of over-all operations of the purchasing and storing and sale of aluminum, copper and brass mill products.” He received a bachelor of science degree in metallurgy from the Massachusetts Institute of Technology" }, { "docid": "7683137", "title": "", "text": "Brazilian producers would shift their production of lead and bismuth bar products to OSBQ bars to circumvent the antidumping duty order imposed on the lead and bismuth products and found the possibility insupportable. See id. at 51-53, 56-58. Accordingly, as the Commission’s threat analysis is supported by substantial evidence, the Court affirms the Commission’s negative determination that Brazilian imports of the subject product do not pose an imminent threat of material injury to the domestic industry. In sum, the Court has examined the administrative record and is convinced that the Commission’s negative injury and threat determination is supported by substantial evidence on the record and is in accordance with law. Therefore, the Commission appropriately denied relief to the domestic industry. Conclusion The Court has been unpersuaded by plaintiffs’ supporting arguments in this challenge. Plaintiffs have failed to demonstrate error in the Commission’s negative present material injury and threat determination concerning OSBQ bars from Brazil. The motion at bar is, therefore, denied and this action is dismissed. JUDGMENT This case having been submitted for decision and the Court, after due deliberation, having rendered a decision herein; now, in accordance with said decision, it is hereby ORDERED that plaintiffs’ motion for judgment upon the agency record is denied in all respects and the final negative material injury and threat of material injury determination of the International Trade Commission concerning Certain Special Quality Carbon and Alloy Hot-Rolled Steel Bars and Rods and Semifinished Products From Brazil, USITC Pub. 2662, Inv. No. 731-TA-572 (July 1993), 58 Fed.Reg. 38,138 (USITC 1993) (final), is sustained; and it is further ORDERED that this action is dismissed. . At the time of issuance of this determination, the Commission was comprised of Chairman Newquist, Vice-Chairman Watson and Commissioners Rohr, Brunsdale, Crawford and Nuzum. . On June 29, 1992, Commerce initiated an investigation to determine whether imports of certain alloy and carbon hot-rolled bars, rods, and semifinished products of special bar quality (“SBQ”) engineered steel from Brazil are being, or are likely to be, sold in the United States at LTFV. Provisionally, Commerce accepted petitioners' claim that the subject merchandise" }, { "docid": "21157139", "title": "", "text": "MOLLISON, Judge. The protests enumerated in the attached schedule were submitted for decision upon stipulation of counsel for the parties reading as follows: “It Is Hereby Stipulated and Agreed by and between counsel for the plaintiff and the Assistant Attorney General for the United States that the items marked ‘A’ and initialed PFF (Examiner’s Initials) by Examiner P. F. Feran (Examiner’s Name) on the invoices covered by the protests enumerated in the attached Schedule ‘A’ and assessed with duty at 10% ad valorem under Par. 405 of the Tariff Act of 1930 consist of sticks of wood similar in all material respects to the merchandise the subject of Rico Products Co. et al. v. United States, C.D. 2159, wherein the Court held that said articles were properly free of duty under Par. 1806 of the Tariff Act of 1930. “It Is Further Stipulated and Agreed that the record in Rico Products Co. et al. v. United States, C.D. 2159 be incorporated in the record in these cases and that the protests be submitted on this stipulation, the same being limited to the items marked ‘A’ as aforesaid. “It Is Further Stipulated and Agreed that there is now on file with the Collector of Customs at the port of Los Angeles a power of attorney to file protests in favor of Lawrence & Tuttle, Horace Holloway Elder, Elaine Frances Overacker or any one of them executed by two of the partners of Rico Products Co. “It Is Further Stipulated and Agreed that there is now on file with the Collector of Customs at Los An-geles a power of attorney to file protests in favor of Lawrence & Tuttle, Horace Holloway Elder, Elaine Frances Overacker or any one of them signed by Roy John Maier, President of Roy J. Maier Products.” It seems clear that counsel for the parties considered it necessary, or at least expedient, to stipulate the matters contained in the third and fourth paragraphs quoted above for the reason that, attached to the “Report of the Collector on Protest,” customs Form 4297, in each case is a memorandum or" }, { "docid": "7683138", "title": "", "text": "the Court, after due deliberation, having rendered a decision herein; now, in accordance with said decision, it is hereby ORDERED that plaintiffs’ motion for judgment upon the agency record is denied in all respects and the final negative material injury and threat of material injury determination of the International Trade Commission concerning Certain Special Quality Carbon and Alloy Hot-Rolled Steel Bars and Rods and Semifinished Products From Brazil, USITC Pub. 2662, Inv. No. 731-TA-572 (July 1993), 58 Fed.Reg. 38,138 (USITC 1993) (final), is sustained; and it is further ORDERED that this action is dismissed. . At the time of issuance of this determination, the Commission was comprised of Chairman Newquist, Vice-Chairman Watson and Commissioners Rohr, Brunsdale, Crawford and Nuzum. . On June 29, 1992, Commerce initiated an investigation to determine whether imports of certain alloy and carbon hot-rolled bars, rods, and semifinished products of special bar quality (“SBQ”) engineered steel from Brazil are being, or are likely to be, sold in the United States at LTFV. Provisionally, Commerce accepted petitioners' claim that the subject merchandise comprised a single \"class or kind\" of merchandise. Initiation of Antidumping Duty Investigation: Certain Alloy and Carbon Hot Rolled Bars, Rods and Semifinished Products of Special Bar Quality Engineered Steel From Brazil, 57 Fed.Reg. 29,703 (Dep't of Comm. 1992). On August 12, 1992, in a decision memorandum, Commerce determined that the subject merchandise constitutes two distinct classes or kinds of merchandise: (1) alloy and carbon hot-rolled bars and rods of SBQ engineered steel, and (2) semifinished products of SBQ engineered steel. Preliminary Determination of Sales at Less Than Fair Value: Certain Alloy and Carbon Hot-Rolled Bars, Rods, and Semifinished Products of Special Bar Quality Engineered Steel From Brazil {“LTFV Preliminary Determination ”), 58 Fed. Reg. 3,533, 3,535 (Dep’t Comm.1993). Commerce's decision was based on the following product differences: physical characteristics, ultimate use, ultimate purchaser expectations, channels of trade, and methods of advertising. LTFV Preliminary Determination, 58 Fed.Reg. at 3,535. The investigated \"special quality” steel products consist of two categories: (1) semifinished ingots, blooms and billets; and (2) finished “hot-rolled” bars and rods. Final Determination at" }, { "docid": "5144201", "title": "", "text": "as modified, supra. A fair summary of the unrebutted testimony of plaintiff’s six well-qualified witnesses, some of whom had experience dating back to 1915, establishes that the subject merchandise was produced by the extrusion of a relatively short and thick billet, 2 feet long, through a die which produced material 40 to 60 feet long. These lengths were then cut into pieces measuring 7 and 12 feet, portions of which are in evidence as exhibits 1 through 5. The record also discloses that hexagonal bars such as exhibit 6 and merchandise like exhibit 7 were produced by the same process as was the merchandise repre sented by exhibits 1 through 5. Furthermore, it is not disputed that the imported articles are used in the fabrication of automotive fittings of various shapes and sizes represented by exhibits 12 through 24. There is also testimony which is unrefuted to the effect that merchandise represented by exhibits 1 through 7 was known and sold in the United States prior to and since 1930 as brass rods or brass bars. In support of its contention that the merchandise here in controversy should be classified in paragraph 381, as modified, supra, plaintiff relies upon our decisions in Mohawk Iron & Steel Co., supra, and The Davis-Bilt Products Co. v. United States, 28 Cust. Ct. 332, C. D. 1432. In the Mohawk case, supra, we held that certain round forms of an aluminum alloy, %2 of an inch in diameter in straight lengths of 88K and 98K inches, were subject to classification as aluminum rods within the common meaning of that term and, hence, were not dutiable as wire. The defendant has rightfully pointed out that the issue in that case is not the same as the one presented here. In the Mohawk case, as above indicated, the competition was between the words “rods” and “wire,” while here, the competition is between the words “rods” or “bars” on the one hand and articles in chief value of brass on the other. However, what we said in the Mohawk case about the common meaning of the term" }, { "docid": "22863610", "title": "", "text": "distribute products of Alcoa, Reynolds, and Kaiser, and that he had bohght as rod material from -Ke of an inch to 1 inch and up from the Whitehead Co. - ' ' ■Howard A. Fromson, president of Fromson-Orban Co., dealer in foreign-made aluminum throughout the United States, testified: that while he did not handle aluminum wire, he did sell material such, as plaintiff’s exhibits 1 and 3 with a diameter of ){inch up to 3% inches as rod. : George F. R. Miller, a salesman in the aluminum division'of thé-Atlantic Steel & Iron Co., testified that he had been dealing in-aluminum since 1920, first as a purchasing agent for Edward F. Caldwell & Co. where he bought both wire and rod from Alcoa and various distributors. He had been employed subsequently as pur-, chasing agent, production manager, or salesman for various concerns. dealing in all commercial forms of aluminum. He recognized the merchandise represented by exhibits 1 and 3 as rods and stated that - in his experience the fine of demarcation between wire and rod was that wire is generally in coils while rod is something that is in straight lengths.. He also stated that, when he was associated with E.-'F. Caldwell, he purchased rods from Alcoa in %-inch cross-sections,or diameters. Although the testimony of these witnesses is advisory only in its nature,, we believe it clearly supports our view that the merchandise represented by exhibit 1 is in fact and in law properly classifiable as rods. Defendant endeavored to overcome the effect of plaintiff’s case by the introduction of evidence designed to prove that the terms “wire” and “rods” had a restricted commercial meaning different from the meaning popularly ascribed to those terms. Twenty-five years ago our appellate court in Jas. Akeroyd & Co. et al. v. United States, 15 Ct. Cust. Appls. 440, T. D. 42641, gave expression to the following statement which is equally true today: Commercial designation is a thing often claimed in customs litigation and rarely-established. As a matter of fact, it is increasingly difficult today for the reason that* litigants are operating under" }, { "docid": "10945884", "title": "", "text": "fact that in common speech a notable distinction between bars and rods on the one hand and tubes on the other is that the term “tube” connotes a hollow, cylindrical shape, and since Congress saw fit, in drafting paragraph 374, supra, to specify the exemplar forms of aluminum products which were intended to be embraced within that paragraph it is significant that it omitted any reference to aluminum tubes or tubing. Defendant, in its brief, invites our attention to the following extract from “Summaries of Tariff Information, Volume 3, Metals and Manufactures, Part 5, 1948,” prepared by the United States Tariff Commission for the use of the Ways and Means Committee of the House of Representatives: ALUMINUM AND ALUMINUM ALLOY METAL, SCRAP, AND MILL PRODUCTS OP ALUMINUM ALLOY (PAR. 374) Comment Scope and description. — This summary covers aluminum and aluminum alloy metal, aluminum scrap, and mill products of aluminum and aluminum alloy (coils, plates, sheets, bars, rods, circles, disks, blanks, strips, rectangles, and squares). It excludes aluminum wire; aluminum foil, powder, and leaf; and miscellaneous fabricated aluminum products not specially provided for. [Italics supplied.] This lends some support at least to the view above expressed as to the congressional limitation of aluminum products to be classified for duty in paragraph 374. Upon the record and for the reasons above stated, we are of the opinion that the merchandise represented by exhibits 1 through 9 herein is not within the common meaning of the term “bars” or “rods,” as those words are employed in paragraph 374 and we so hold. The protests are overruled and judgment will issue accordingly. See separate summaries on: Specialty wire, except wire of gold, silver, platinum, tungsten, or molybdenum (wire n.s.p.f.), par. 316(a); aluminum foil, aluminum leaf, bronze powder of aluminum and powdered foil, and aluminum powder in leaf, par. 382(a); and miscellaneous base metal manufactures, par. 397;" }, { "docid": "10944511", "title": "", "text": "statute. Our finding is based on the testimony and comparison of the samples of the imported merchandise (exhibits 1-3) with the samples of bamboo (exhibit 4), of wood (exhibits 5 and 6), and of chip (exhibit 7). However, in view of the record and the statements in plaintiff’s brief, we cannot find that the imported merchandise most resembles articles of wood or chip with respect to material. Therefore, plaintiff’s claims under paragraphs 412 and 1537(a), supra, cannot be sustained. The testimony and counsel’s statements indicate that there is in existence an article of aluminum which the imported merchandise more closely resembles as to material than articles of wood or chip. The aluminum slat can be and is shaped into the shallow “S” and “W” cross-sections as the plastic slats are, permitting the quality of rigidity to be obtained in a light slat, which in wood or woody slats requires significantly heavier construction. Therefore, articles other wise similar to those imported, but made with wood or woody slats, do not most resemble the imported articles with respect to materials. But we are unable to find on the evidence before us that any article dutiable under paragraph 397, supra, does most resemble the imported article. We know that there is an import made with aluminum. The statements of plaintiff’s counsel about it, outside the testimony, though significant as admissions respecting plaintiff’s other claims, are not affirmative evidence to support the claim now considered. We have no sample before us. Without conceding that the claim is otherwise fully proven, we point out that for the claimed prototype article to be dutiable under paragraph 397, it has to be wholly or in chief value of aluminum, not just partly of that metal. It cannot be wholly aluminum if it is similar to the imported articles, which are partly of plastic and partly of other materials. If we had a sample before us, we might be able to say it was too obvious for other proof to be needed as to what its component of chief value was. (Cf. John S. Connor, Inc. v. United" }, { "docid": "22210699", "title": "", "text": "Lawrence, Judge: The merchandise under consideration here consists of hinges, imported with screws, in carboard boxes. The collector of customs, treating the merchandise as entireties, classified it as articles in chief value of base metal and assessed duty thereon at the rate of 22per centum ad valorem, in accordance with the terms of paragraph 397 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 397), as modified by the General Agreement on Tariffs and Trade (82 Treas. Dec. 305, T. D. 51802). Plaintiff claims by its protest that the screws should be separately classified pursuant to the eo nomine provision therefor in paragraph 338 of said act (19 U. S. C. § 1001, par. 338), as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade (86 Treas. Dec. 121, T. D. 52739), and subjected to duty at the rate of 12% per centum ad valorem, leaving only the hinges to be classified in said paragraph 397. In other words, the claim for a reduction in duty is limited to the screws. The competing provisions of the statutes, so far as pertinent here, read as follows: Paragraph 397 of the Tariff Act of 1930, as modified, sufra: Articles or wares not specially provided for, wb.eth.er partly or wholly manufactured: % :fi * % :j; % Composed wholly or in chief value of iron, steel, lead, copper, brass, nickel, pewter, zinc, aluminum, or other metal (not including platinum, gold, or silver), but not plated with platinum, gold, or silver, or colored with gold lacquer: Other (except slide fasteners and parts thereof)_22%% ad val. Paragraph 338 of said act, as modified, supra: Screws, commonly called wood screws, of iron or steel_ 12%% ad val. At the trial, the case was submitted upon an oral stipulation in which the parties agreed as follows: 1. That the merchandise under protest consists of screws packed with hinges in cardboard boxes, 2 hinges and 12 screws to a box, as represented by the sample which I now file with the court, and which may, with the consent of the" } ]

[ { "docid": "14801609", "title": "", "text": "such bias would not be relevant to the officer’s credibility. After this preliminary ruling, Harris did not seek to admit evidence of the arresting officer’s alleged bias. II. A. Prosecutor’s Questions to Harris About Police Witness Credibility Harris first claims that the prosecutor improperly influenced the jury’s determi nations of witness credibility by repeatedly asking Harris whether various police witnesses had lied in an effort to convict him. Because Harris did not object to any of the allegedly improper questions at trial, both parties agree that we review this challenge under the plain error standard of section 52(b) of the Federal Rules of Criminal Procedure. See United States v. Johnson, 302 F.3d 139 (3d Cir.2002). Under plain error review, we may grant relief if (1) the District Court committed an “error,” (2) the error is “plain,” and (3) the error “affect[s] substantial rights.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). An error is “[a] deviation from a legal rule.” United States v. Russell, 134 F.3d 171, 180 (3d Cir.1998) (citation omitted). It is “plain” when it is “clear under current law.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. And, it “affect[s] substantial rights” when it is “prejudicial,” i.e., it “affect[s] the outcome of the district court proceedings.” Id. Even if these requirements are satisfied, the court should only exercise discretion to grant relief “ ‘in those circumstances in which a miscarriage of justice would otherwise result.’ ” Id. at 736, 113 S.Ct. 1770 (internal citations omitted). Of the federal courts of appeals that have examined the propriety of questions posed to a criminal defendant about the credibility of government witnesses, it appears nearly all find that such questions are improper. See United States v. Thomas, 453 F.3d 838, 846 (7th Cir.2006); United States v. Williams, 343 F.3d 423, 438 (5th Cir.2003); United States v. Sanchez, 176 F.3d 1214, 1219-20 (9th Cir.1999); United States v. Sullivan, 85 F.3d 743, 749 (1st Cir.1996); United States v. Boyd, 54 F.3d 868, 871 (D.C.Cir.1995); United States v. Richter, 826 F.2d 206, 208 (2nd Cir.1987); but" } ]

[ { "docid": "23090760", "title": "", "text": "of “knowingly” might be interpreted to allow conviction even where the defendant did not know the laundered funds were illegally obtained. See 37 F.3d at 1410. Although Turman didn’t raise this claim below, he nevertheless asks us to reverse his conviction on grounds of Stein error. In United States v. Golb, 69 F.3d 1417 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1369, 134 L.Ed.2d 534 (1996), the defendants (like Turman) were convicted of money laundering before Stein was decided. They challenged their money laundering instructions on appeal, but because they (like Turman) failed to object below, we “reviewed] their contentions ... only for plain error.” Id. at 1428. Under Golb, we must review Turman’s jury instructions only for plain error. To sécure reversal under this standard, defendant must prove that: (1) there was “error”; (2) the error was plain; and (3) the error affected “substantial rights.” United States v. Olano, 507 U.S. 725, 730-32, 113 S.Ct. 1770, 1775-76, 123 L.Ed.2d 508 (1993). The first requirement is met here. Stein clearly holds that defendant’s money laundering instructions were erroneous, and because a “new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases,” Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 715, 93 L.Ed.2d 649 (1987), defendant is entitled to the benefit of this new rule on appeal. Whether the error is “plain,” however, is more difficult, and requires us to resolve a question the Court left open in Olano. Although the Court defined a “plain error” as one that is “clear” or “obvious,” 507 U.S. at 734, 113 S.Ct. at 1777 it did “not consider the special case where the error was unclear’ at the time of trial but becomes clear on appeal because the applicable law has been clarified.” Id. This is that case, as Stein was decided long after the ink had dried on defendant’s guilty verdicts. We must therefore decide whether we look to the time of trial or the time of appeal to determine whether an error is plain. Plain error, as we understand that term, is" }, { "docid": "5422607", "title": "", "text": "grand jury apparently were provided to the defense prior to trial, and the statements were used for impeachment purposes both at trial and, as noted above, at the sentencing hearing. After learning of the grand jury testimony, Mr. Gaughan did not argue that the disclosure was belated or renew his motion to suppress. On appeal, Mr. Gaughan argues that the rule of Brady v. Maryland applies to suppression hearings and, in these circumstances, required the Government to furnish Agent King’s grand jury testimony prior to the suppression hearing. Because Mr. Gaughan did not present this argument to the district court, our review is only for plain error. See United States v. Brumley, 217 F.3d 905, 909 (7th Cir.2000). In United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Supreme Court explained the criteria for establishing “plain error.” First, the error must be “plain.” The court explained that, properly understood, “ ‘[p]lain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” Id. at 734, 113 S.Ct. 1770. It is inappropriate, therefore, to find plain error when current law is unsettled. See, e.g., United States v. Stafford, 136 F.3d 1109, 1114 (7th Cir.1998); United States v. Klinger, 128 F.3d 705, 712 (9th Cir.1997); United States v. Brewer, 1 F.3d 1430, 1435 (4th Cir.1993). Second, the error must affect “substantial rights.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. In order to meet this burden, “[njormally, ... the defendant must make a specific showing of prejudice....” Id. at 735, 113 S.Ct. 1770. Finally, the error must “seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings.” Id. at 736, 113 S.Ct. 1770. According to the Court, this last requirement will always be met if “a plain forfeited error ... cause[d] the conviction or sentencing of an actually innocent defendant”; however, it was not willing to define this last element strictly in terms of actual innocence. Id. With these standards in mind, we turn to Mr. Gaughan’s Brady claim. In Brady v. Maryland, the Supreme Court held that “the suppression by the prosecution of evidence favorable to" }, { "docid": "8352381", "title": "", "text": "reverse for error alone, but must also resolve whether the error is “plain.” An error is plain if it is “clear” or “obvious” under current law. Olano, 507 U.S. at 734, 113 S.Ct. 1770. Although our holding regarding the allowable unit of prosecution under § 922(g) is a matter of first impression for this Court, we find that the District Court’s error is plain. See United States v. Miller, 527 F.3d 54, 73 (3d Cir.2008) (concluding that failure to merge lesser-included offense at sentence was plain error, even though question was matter of first impression). In making this determination, we note this Court’s analyses in Frankenberry and Marino, dealing with analogous statutes. We also note that those courts of appeals that have addressed this question are in unanimous agreement that § 922(g)(1) does not sup port multiple convictions for the simultaneous possession of more than one firearm, or a firearm and ammunition. See infra note 5. We therefore hold that the District Court’s error in convicting and sentencing Tann on both counts charged under § 922(g)(1) is plain. C. Having determined that the entry of multiplicitous convictions was error, and that the error is plain, we next consider whether that plain error “affect[ed] substantial rights.” Fed.R.Civ.P. 52(b). In most cases, to have affected a defendant’s substantial rights, a plain error must have caused the defendant prejudice, in that it “affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 5. Ct. 1770. It is the defendant who has the burden to make “a specific showing of prejudice” to meet the affected substantial rights requirement of Rule 52(b). Id. at 735, 113 S.Ct. 1770. 1. Two Supreme Court decisions set the legal landscape for analyzing the issue of whether multiple convictions and sentences, unauthorized by Congress, affect substantial rights. In Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985), the Court held that a felon possessing a firearm may not be convicted under both § 922(h) and § 1202(a) for possessing and receiving the same weapon. 470 U.S. at 858, 105 S.Ct." }, { "docid": "23685907", "title": "", "text": "instruction or object to its omission, we review for plain error under Rule 52(b). For a holding of plain error to be proper: (1) there must be error; (2) the error must be plain; and (3) the defendant must demonstrate that the asserted error affected his or her substantial rights. See United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Perez, 116 F.3d 840, 846 (9th Cir.1997) (en banc). An appellate court’s power to correct plain error “is to be used sparingly.” United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). In the realm of jury instructions, “[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court”; further, “[a]n omission, or an incomplete instruction, is less likely to be prejudicial” than an improper instruction and, accordingly, is even less likely to justify reversal. Henderson v. Kibbe, 431 U.S. 145, 154-55, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). Assuming for the sake of argument that the trial court erred in failing to instruct on the statute of limitations, the error was not plain. Error is “plain” when it is “clear” or “obvious” under current law. Olano, 507 U.S. at 734, 113 S.Ct. 1770. The error here, if any, was neither clear nor obvious. In some circumstances, a district court can commit plain error by failing to give a jury instruction that neither party requested. In United States v. Mendoza, 11 F.3d 126, 128 (9th Cir.1993), this court concluded that the district court’s failure to instruct the jury on an element of a criminal offense was plain error. The Mendoza court’s analysis focused on the fact that the omitted instruction went to an element of the offense. See id. Noting that the prosecution bears the burden of proving every element of a crime, the court concluded that, “when a trial judge omits an element of the offense charged from the jury instructions, it deprives the jury of its" }, { "docid": "22975338", "title": "", "text": "did not make this argument in the District Court. We will therefore review Syme's claim for plain error. See Fed.R.Crim.P. 52(b). Under the plain error standard, a reviewing court may reverse the district court \"only if [it] finds that (1) an error was committed; (2) the error was plain, that is, 'clear' and 'obvious;' and (3) the error 'affected [the defendant’s] substantial rights.' \" United States v. Nappi, 243 F.3d 758, 762 (3d Cir.2001) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). \"If a forfeited error is 'plain' and 'affects substantial rights,' a Court of Appeals 'has the authority to order the correction, but is not required to do so.’ The Court should exercise its discretion to order such a correction only if the error, 'seriously affects the fairness, integrity, or public reputation of judicial proceedings.' ” United States v. Stevens, 223 F.3d 239, 242 (3d Cir.2000) (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770) (internal citations omitted). The burden is on the defendant to demonstrate that \"plain error” occurred. Olano, 507 U.S. at 734, 113 S.Ct. 1770. . In contrast, the jury in Yates could not have been presumed to have focused on the legal issue of the proper interpretation of the statutory term \"to organize.” This legal issue was not presented to the jury, and at all events was ultimately a question for the court instead of the jury. Similarly, a jury cannot be presumed to distinguish a constitutional ground for conviction from an unconstitutional one. . The superseding indictment defines the abbreviations that the prosecution and the jury used to refer to the different theories of fraud presented. \"PA” refers to the scheme whereby Syme \"would submit bills ... for transportation services billed at the Pennsylvania rate instead of the Delaware or Maryland rate.” \"MN” means a scheme in which the defendants \"intentionally falsely representad] that the [ambulance] transportation was medically necessary.” \"Dest.” refers to the practice of \"intentionally ... sending] false and misleading information concerning the destination” of the ambulance trip. And finally, “Treat.” means \"intentionally transmit[ting]" }, { "docid": "22279246", "title": "", "text": "court declare a mistrial. Thus, Salinas effectively received all of the relief that he requested from the district court. When a defendant asks this court to reverse a conviction under these circumstances, the defendant essentially asks us “ ‘to go against the implicit judgment of both the trial court and the defendant’s trial counsel that the trial court’s corrective action was adequate and appropriate.’ ” United States v. Carter, 953 F.2d 1449, 1465-66 (5th Cir.1992) (quoting United States v. Canales, 744 F.2d 413, 431 (5th Cir.1984)). In such cases, we consider the challenged comments under the plain error standard. See id. at 1466 (applying plain error standard where trial court sustained defendant’s objections and defendant did not request mistrial; stating that “logically there is little difference between a case that comes to us where no objection has been made to the alleged impropriety and one where no further objection has been made to the trial judge’s handling of an impropriety”); see also Canales, 744 F.2d at 431. To establish plain error, the defendant must show that “(1) there is an error, (2) the error is clear or obvious, and (3) the error affects his substantial rights.” United States v. Coil, 442 F.3d 912, 916 (5th Cir.2006); Fed.R.Crim.P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”). An error is considered plain, or obvious, only if the error is clear under existing law. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (stating that a “court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law”). If those three conditions are satisfied, this court may grant relief if “the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Ibarra-Zelaya, 465 F.3d 596, 606 (5th Cir.2006) (citing United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005)); United States v. Garciar-Flores, 246 F.3d 451, 457 (5th Cir.2001) (“ ‘Plain error occurs when the error is so obvious and substantial that" }, { "docid": "9846659", "title": "", "text": "violation of 18 U.S.C. § 922(g)(1). At trial, the government and Santiago stipulated that the gun admitted into evidence was a .25 caliber semi-automatic pistol manufactured in Italy. The parties also stipulated that prior to July 21, 1999, Santiago already had been convicted of a felony punishable by imprisonment for a term of more than one year. After a short trial, the jury returned with a guilty verdict. The District Court sentenced Santiago to 68 months’ imprisonment, three years’ supervised release, and a $100 special assessment. DISCUSSION Santiago contends that the felon-in-possession statute cannot constitutionally be applied to the conduct for which he was convicted. As he acknowledges, we already upheld § 922(g) against Commerce Clause challenge shortly after the Supreme Court’s decision in Lopez. See Sorrentino, 72 F.3d at 296 (holding that because § 922(g) requires a felon to possess a firearm “in or affecting commerce,” it contains “a legitimate nexus with interstate commerce” and thus “avoids the constitutional deficiency identified in Lopez ”); see also United States v. Hernandez 85 F.3d 1023, 1030-31 (2d Cir.1996) (applying Sorrentino ). Santiago argues, however, that the Supreme Court’s recent decisions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), have altered the settled law in this Circuit concerning the permissible scope of § 922(g) under the Constitution. Santiago did not advance his challenge to § 922(g) before the District Court. Nevertheless, he urges us to review his conviction for plain error pursuant to Rule 52(b) of the Federal Rules of Criminal Procedure. Fed.R.Crim.P. 52(b); see United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994), cert. denied, 513 U.S. 1198, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995). Rule 52(b) places three limits on appellate authority to notice errors not preserved at trial: First, there must be “error,” or deviation from a legal rule which has not been waived. Second, the error must be “plain,” which" }, { "docid": "23077307", "title": "", "text": "not be subjected to a punishment beyond the maximum of 20 years provided for in § 841(b)(1)(C). B. On appeal, Reid now contends that the jury’s failure to find any drug quantity requires reversal of his conviction on Count 1 because the district court’s instructions permitted the jury to convict him only if it concluded that the conspiracy involved the threshold amounts of 50 or more, or 5 or more, grams of crack. Because Reid did not raise this argument below, our review is for plain error. United States v. Evans, 416 F.3d 298, 300 (4th Cir.2005). To establish plain error, Reid must show that an error occurred, that the error was plain, and that the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Even if Reid makes this threshold showing, Fed.R.Crim.P. 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals. See id. at 735-36, 113 S.Ct. 1770. We conclude that the district court erred in instructing the jury that it could convict Reid on Count 1 only if it also found that the drug conspiracy involved specified quantities of crack. As we explained in Collins, “[g]uilt of the substantive offense defined in § 841(a) is not dependent upon a determination of the amount or type of narcotics distributed.” 415 F.3d at 314. Rather, in order to obtain a conviction on Count 1, the government was required to prove that (1) an agreement to possess cocaine with intent to distribute existed between two or more persons; (2) Reid knew of the conspiracy; and (3) Reid knowingly and voluntarily became a part of this conspiracy. United States v. Burgos, 94 F.3d 849, 857 (4th Cir.1996) (en banc). In instructing the jury that a specific drug quantity was an element of conviction under § 841(a), the district court misstated the law and heightened the government’s burden of proof. We must next determine whether the error was plain. To be plain, an error must be “clear” or “obvious.” Olano, 507 U.S. at" }, { "docid": "22897051", "title": "", "text": "] or defect[ ] affecting substantial rights.’” (quoting Fed.R.Crim.P. 52(b)) (alterations in original)). To establish plain error, Jackson must demonstrate that (1) the asserted defect in the trial was, in fact, error; (2) the error was plain; and (3) the error affected his substantial rights. See Fed.R.Crim.P. 52(b); see also United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993). “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 affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, — U.S. -,-, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) (internal quotation marks omitted). Jackson satisfies the three-prong test of Olano . First, Jackson has demonstrated that the district court committed error. In Staples, the Supreme Court held that to obtain a conviction under § 5861(d), the Government has to prove that a defendant has knowledge of the physical characteristics of his weapon that bring it within the scope of the Act. at 603-05, 114 S.Ct. at 1796. The district court’s failure to instruct the jury in accordance with Staples, therefore, constitutes error. Second, the error must be plain. “An error is plain, at least, when the error is clear both at the time it occurred and at the time of appeal.” Cedelle, 89 F.3d at 185; see also United States v. David, 83 F.3d 638, 642 (4th Cir.1996). The Supreme Court decided Staples in May 1994 — more than a year prior to Jackson’s trial. Thus, the error was plain for purpose of Rule 52(b). Third, Jackson must show that the error affected his substantial rights. “[T]he failure to instruct on an element of the crime, where the jury never made the constitutionally required findings, ... satisfies Olano’s third prong.” David, 83 F.3d at 647; see also United States v. Aramony, 88 F.3d 1369, 1387 (4th Cir. 1996) (holding that the district court’s failure to instruct the jury on an essential element of the crime was not subject to harmless-error analysis), cert." }, { "docid": "23009616", "title": "", "text": "court omits an essential element, the conviction is affirmed if it is beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. Id. at 18, 119 S.Ct. 1827. United States v. Olano laid out three requirements for plain error review: (1) error and no waiver; (2) plain or obvious error; and (3) error affecting the defendant’s substantive rights. 507 U.S. 725, 730-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Even if the three requirements are satisfied, the court has the discretion not to correct an issue that does not seriously “affect the fairness, integrity, or public reputation of judicial proceedings.” Id. Plain errors are clear and obvious under current law. Id. at 732-34, 113 S.Ct. 1770. When Corey was tried and convicted, existing precedent did not require unanimity as to the specific violations constituting the continuing criminal enterprise. At that time, the error was not clear and obvious, but it was clear and obvious at the time of this appeal. When there was no error under the law existing at the time of trial, but plain error at the time of appeal, the plainness prong is satisfied. United States v. Miranda, 248 F.3d 434, 445 (5th Cir.2001). Since the jury agreed that Corey committed three specific crimes in the series and the evidence of his guilt was overwhelming, the error here was harmless and did not affect the fairness or integrity of the proceedings. The jury convicted Blount of conspiracy and of count 4, which contained the predicate violations supporting the CCE count. Implicit in the convictions is the jury’s unanimous agreement that Blount was guilty of three specific violations in the CCE series. B. Apprendi and penalty enhancements for drug quantity Defendants claim that the absence of a requirement in the jury instructions on the conspiracy charge that the jury find a specific amount of crack cocaine resulted in Apprendi error. Under this Circuit’s interpretation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), drug quantities that the government uses to seek penalty enhancements under 21" }, { "docid": "9846660", "title": "", "text": "(2d Cir.1996) (applying Sorrentino ). Santiago argues, however, that the Supreme Court’s recent decisions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), have altered the settled law in this Circuit concerning the permissible scope of § 922(g) under the Constitution. Santiago did not advance his challenge to § 922(g) before the District Court. Nevertheless, he urges us to review his conviction for plain error pursuant to Rule 52(b) of the Federal Rules of Criminal Procedure. Fed.R.Crim.P. 52(b); see United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994), cert. denied, 513 U.S. 1198, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995). Rule 52(b) places three limits on appellate authority to notice errors not preserved at trial: First, there must be “error,” or deviation from a legal rule which has not been waived. Second, the error must be “plain,” which at minimum means “clear under current law.” Third, the plain error must ... “affeet[ ] substantial rights,” which normally requires a showing of prejudice. United States v. Yu-Leung, 51 F.3d 1116, 1121 (2d Cir.1995) (quoting Viola, 35 F.3d at 41). Once the reviewing court is satisfied that the forfeited error is “plain” and “affect[s] substantial rights,” the court has the authority to correct that error “if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S.Ct. 1770 (internal quotation marks and alterations omitted). When the source of the alleged error is a supervening judicial decision that alters “a settled rule of law in the circuit,” as Santiago alleges, we apply a “modified plain error rule” in which the government bears the burden of persuasion as to whether substantial rights have been affected. Viola, 35 F.3d at 42. Contrary to Santiago’s assertion, however, neither Morrison nor Jones has altered the settled law in this Circuit concerning the applicability of § 922(g) to the conduct for which" }, { "docid": "92042", "title": "", "text": "that he makes in this appeal before the District Court. Therefore, we review his arguments (except his argument that the Hobbs Act conspiracy conviction required proof that a member of the conspiracy obtained benefits) for plain error. In reviewing for plain error, we inquire whether there is “(1) an error; (2) that is plain; and (3) that affected substantial rights.” United States v. Dobson, 419 F.3d 231, 236 (3d Cir.2005). An error is plain “if the error is ‘obvious’ or ‘clear under current law.’ ” United States v. Vazquez, 271 F.3d 93, 100 (3d Cir.2001) (en banc) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). If all three of these conditions are met, “an appellate court may in its discretion grant relief, but only if ‘the error seriously affects the fairness, integrity, or public reputation of [the] judicial proceedings.’ ” Dobson, 419 F.3d at 236 (alteration in original) (quoting United States v. Haywood, 363 F.3d 200, 206-07 (3d Cir.2004)). 1. Salahuddin raises three issues that can be grouped together as a challenge to the Government’s failure to prove that one of the alleged co-conspirators committed an overt act in furtherance of the conspiracy. He argues that the District Court erred in omitting an overt act requirement from its jury instructions and that the rule of lenity requires that his conviction be vacated. He also contends that because the indictment alleged overt acts, the Government’s failure to prove these acts constructively amended the indictment. Because Sala-huddin failed to object to the jury instructions or raise the constructive amendment issue before the District Court, we review these arguments for plain error. See United States v. Duka, 671 F.3d 329, 352 (3d Cir.2011) (applying plain error review to an unpreserved constructive amendment issue); United States v. Bansal, 663 F.3d 634, 643 (3d Cir.2011) (applying plain error review to an unpreserved statutory interpretation issue); United States v. W. Indies Transport, Inc., 127 F.3d 299, 310 (3d Cir.1997) (applying plain error review to an unpreserved jury instruction issue). To address Salahuddin’s specific arguments, we must first determine" }, { "docid": "1404609", "title": "", "text": "words “or appears to be” from the definition of child pornography contained in § 2256(8)(B) and the entire definition of child pornography in § 2256(8)(D). 122 S.Ct. at 1406. Free Speech Coalition left intact the ban on actual child pornography in the remainder of § 2256(8). Id. at 1896. On appeal, Hall challenges his conviction in light of the Supreme Court’s decision in Free Speech Coalition. Hall argues that the district court erred in its jury charge, rendering it impossible to determine from the record whether the jury relied on the unconstitutional definitions of child pornography in convicting him. Because Hall did not object to this jury instruction defining child pornography, we review this issue for plain error. See United States v. Sanchez, 269 F.3d 1250, 1280-81 (11th Cir.2001) (en banc), cert. denied, 535 U.S. 942, 122 S.Ct. 1327, 152 L.Ed.2d 234 (2002). Thus, Hall must show that there is (1) “error,” (2) “that is ‘plain,’ ” and (3) “that ‘affect[sj substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “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 affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Sanchez, 269 F.3d at 1281 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770) (other internal quotation marks and citation omitted). “[Wjhere the first two prongs of the plain error rule established by Olano are satisfied, the defendant bears the burden of demonstrating that the plain error ‘affec[tedj substantial rights.’ ” United States v. Mitchell, 146 F.3d 1338, 1343 (11th Cir.1998) (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770) (internal quotation marks omitted). “In most cases, this means that the ‘error must have been prejudicial: It must have affected the outcome of the district court proceedings.’ ” Mitchell, 146 F.3d at 1343 (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770). The government properly concedes that this" }, { "docid": "22591940", "title": "", "text": "on the elements of Los Solidos’ alleged racketeering offenses. Therefore, examination of this matter is subject to “plain error” analysis under Rule 52(b) of the Federal Rules of Criminal Procedure, guided by the Supreme Court’s decision in United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). See United States v. Miller, 116 F.3d 641, 672 (2d Cir.1997) (“If there was no objection to the erroneous instruction, the instruction is reviewable on appeal only for ‘plain error’....”). Our court “has restated the first three prongs of the Olano test as follows:” First, there must be “error,” or deviation from a legal rule which has not been waived. Second, the error must be “plain,” which at a minimum means “clear under current law.” Third, the plain error must, as the text of Rule 52(b) indicates, “affect[ ] substantial rights,” which normally requires a showing of prejudice. United States v. Bayless, 201 F.3d 116, 127-28 (2d Cir.) (quoting United States v. Viola, 35 F.3d 37, 41 (2d Cir.1994)) cert. denied, — U.S.-, 120 S.Ct. 1571, 146 L.Ed.2d 474 (2000). “A plain error is an error so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant’s failure to object.” United States v. Gore, 154 F.3d 34, 43 (2d Cir.1998) (internal quotation marks omitted). On appeal, Feliciano has the burden of persuasion to show that the district court committed plain error. See id. at 42. Application of plain error analysis to this matter encounters the difficulty that Feliciano did not argue in his appellate brief or at oral argument that the first three prongs of the Olano test were satisfied here. Counsel for Pagan referred to the district court’s omission to instruct on the elements of §§ 841(a)(1) and 846 — also for the first time on appeal — in conjunction with one of his constitutional arguments (see below, Section G), but did not argue in his appellate brief that Olano was satisfied as to the jury instruction issue (or any other issue). This posture of the case presents obvious" }, { "docid": "4833937", "title": "", "text": "the time of conviction and the time of appeal, we review for plain error. Johnson v. United States, 520 U.S. 461, 464-68, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. West Indies Transp., Inc., 127 F.3d 299, 305 (3d Cir.1997). Accordingly, we review Andrews’s challenge to the honest services fraud portion of the jury instructions for plain error. United States v. Riley, 621 F.3d 312, 321-22 (3d Cir.2010). We also review his challenge to the jury instruction on Count Seven for plain error. Under plain error review, we may correct an error not raised at trial only if the appellant demonstrates that: (1) there was an error; (2) the error is clear or obvious; and (3) “the error ‘affected the appellant’s substantial rights, which in the ordinary case means’ it ‘affected the outcome of the district court proceedings.’ ” Id. at 322 (quoting United States v. Marcus, — U.S.-, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010)). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if ... the error seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (internal marks and citations omitted). Andrews bears the burden of showing that the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “In reviewing a challenge to the sufficiency of the evidence, we apply a particularly deferential standard of review.” United States v. Reyeros, 537 F.3d 270, 277 (3d Cir.2008) (internal marks and citations omitted). We must “view the evidence in the light most favorable to the Government and sustain the verdict if any rational juror could have found the elements of the crime beyond a reasonable doubt.” Id. (internal marks and citation omitted). III. A. Andrews first contends that references to honest services fraud in the Second Superseding Indictment and in the District Court’s instructions to the jury constituted reversible error. We disagree. As we explain below, although Skilling rendered the jury instructions improper," }, { "docid": "17426214", "title": "", "text": "to find separate conduct, the jury delivered a general — rather than special — verdict and the government argued in closing that the computer files supported the possession conviction. The district court’s entry of judgment on both counts, absent some assurance that the convictions were based on separate conduct, was error. III. Next we must determine whether the error requires reversal. To prevail on plain error review, Teague must show “(1) there has been an error in the proceedings below; (2) that error was plain; (3) it affected substantial rights; and (4) it seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Davenport, 519 F.3d at 943. The first two requirements are clearly met. An error is plain when it is “clear” or “obvious” under the law. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Disregard of the separate conduct requirement was a plain error. Teague, however, has not satisfied the third requirement — that the error affected substantial rights. “[I]n most cases [this requirement] means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Id. Although we have not expressly considered the circumstances under which the failure to ensure that convictions were based on separate conduct is prejudicial, we have considered the analogous situation where a district court omits a necessary offense element from its jury instructions. . A district court’s failure to instruct on a necessary offense element “does not always ‘affect’ a defendant’s substantial rights and ... the failure to submit an element to the jury is not per se prejudicial.” United States v. Alferahin, 433 F.3d 1148, 1157 (9th Cir.2006). Specifically, such an error affects substantial rights when “there is a reasonable probability the jury’s verdict would have been different” had the jury been properly instructed. United States v. Jenkins, 633 F.3d 788, 807 (9th Cir.2011); see also United States v. Tuyet Thi-Bach Nguyen, 565 F.3d 668, 677 (9th Cir.2009) (holding that failure to submit an element to the jury was not prejudicial because the ele ment had" }, { "docid": "3217736", "title": "", "text": "in which the enticed “minor” was an undercover police officer. Though this issue was not raised or discussed in Patten, it was raised and squarely rejected in United States v. Meek, 366 F.3d 705, 717-20 (9th Cir.2004); United States v. Root, 296 F.3d 1222, 1227-28 (11th Cir.2002), cert. denied 537 U.S. 1176, 123 S.Ct. 1006, 154 L.Ed.2d 921 (2003); and United States v. Farner, 251 F.3d 510 (5th Cir.2001). A “plain” error is one that is “clear” or “obvious.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The Supreme Court discussed when an error must be plain in Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997): We ... hold that in a case such as this— where the law at the time of trial was settled and clearly contrary to the law at the time of appeal—it is enough that an error be “plain” at the time of appellate consideration. In this case, the law at the time of trial was not settled in this circuit; we had not addressed the issue. Thus, Johnson leaves open the question whether Blazek must prove that the error alleged was plain at the time of trial, which it clearly was not. But in any event, even if the rule in Johnson applies, and even if this court should ultimately affirm the district court’s decision in Helder, thereby creating a conflict with at least three other circuits, the error is not plain at this time. Therefore, the evidence was sufficient to convict Bla-zek of attempted enticement of a minor. Finally, Blazek argues the evidence was insufficient to convict him of traveling in interstate commerce “for the purpose of engaging in any sexual act ... with a person under 18 years of age that would be in violation of Chapter 109A” if it occurred within the territorial jurisdiction of the United States. 18 U.S.C. § 2423(b) (2002). The indictment charged that Blazek traveled with the intent to engage in a sexual act with a person who had attained the age of" }, { "docid": "3391521", "title": "", "text": "718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)) (alteration in original); accord United States v. Thomas, 274 F.3d 655, 667 (2d Cir.2001) (en banc). Where 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 affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770); accord Thomas, 274 F.3d at 667. For an error to be plain, “it must, ‘at a minimum,’ be ‘clear under current law.’” United States v. Weintraub, 273 F.3d 139, 152 (2d Cir.2001) (quoting United States v. Feliciano, 223 F.3d 102, 115 (2d Cir.2000)). We “typically will not find such error where the operative legal question is unsettled,” including where there is no binding precedent from the Supreme Court or this Court. Id. In Weintraub, for example, we found that “no binding precedent” supported the defendant’s position on appeal, and concluded that “[without a prior decision from this court or the Supreme Court mandating the jury instruction that [defendant], for the first time on appeal, says should have been given, we could not find any such error to be plain, if error it was.” Id. at 152. We recently noted that, “in the rare case,” we can notice plain error that does not “contravene[ ] clearly established precedent,” United States v. Brown, 352 F.3d 654, 665 n. 10 (2d Cir.2003), where such error is “ ‘so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant’s failure to object.’ ” Id. at 665 (quoting United States v. Gore, 154 F.3d 34, 42-43 (2d Cir.1998)). It may be appropriate for this Court to find an error “plain,” even in the absence of binding precedent from the Supreme Court or this Circuit, where other circuits have uniformly taken a position on an issue that has never been squarely presented to this Court. We emphasize, however, that such" }, { "docid": "7649906", "title": "", "text": "violated his right to counsel. Williamson did not object to the admission of the recording at trial, so our review is for plain error. Because Williamson has failed to meet the stringent requirements to justify reversal for plain error, we affirm on the issue. Under Federal Rule of Criminal Procedure 52(b) and the plain-error analysis explained by the Supreme Court in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), an appellate court may correct a forfeited error when: “(1) there is an error; (2) the error is plain; (3) the error affects substantial rights; and (4) the court determines, after examining the particulars of the case, that the error ‘seriously affeet[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Wilkinson, 137 F.3d 214, 223 (4th Cir. 1998) (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). “Meeting all four prongs is difficult, ‘as it should be.’ ” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). “[A]n error is plain when the law at the time is settled.” United States v. Godwin, 272 F.3d 659, 679 (4th Cir.2001). To show that a plain error affected his substantial rights, the accused must demonstrate that “the error actually affected the outcome of the proceedings.” Id. at 679-80. As a practical matter, this means that the accused “must establish ‘that the jury actually convicted’ [him] based upon the trial error.” Id. at 680 (quoting United States v. Hastings, 134 F.3d 235, 240 (4th Cir.1998)). “It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. “Where the evidence is overwhelming and a perfect trial would reach the same result, a substantial right is not affected.” Godwin, 272 F.3d at 680 (citing United States v. Moore, 11 F.3d 475, 482 (4th Cir.1993)). Even if the accused establishes the first three prongs, he must" }, { "docid": "12679057", "title": "", "text": "Spanish portions of the tape-recorded conversation. The trial judge, with the agreement of all counsel, denied this request. The jury then sought permission to listen to the tape recording for a second time, and the court granted its request. During this playback of the tape recording, the court gave the government's transcript to the jury for use as an aid and repeated its earlier instruction that the recording, not the transcript, constituted \"the evidence in this case. At this point, DeLeon raised his first objection to the use of the transcript as a jury aid during the jury's deliberations, albeit in the courtroom and while listening to the tape recording. (Because the transcript was not in evidence, the court never sent it into the jury room.) His objection was overruled. Reiterating his challenge on appeal, DeLeon admits that he should have raised this objection at the first use of the transcript at trial and acknowledges that this failure elevates his legal hurdle here to plain error review. See United States v. Martinez, 83 F.3d 371, 376 n. 5 (11th Cir.1996) (finding that defendant’s objection to testimony as ex-cludable hearsay was untimely because it came after the defense had rested, and reviewing trial court’s decision for plain error); cf. United States v. Tse, 135 F.3d 200, 209 (1st Cir.1998) (stating that failure to object when a conversation was introduced into evidence did not preserve issue for appeal even though the defendant objected at the close of the evidence to a transcript of the conversation being given to the jury, and reviewing the admission of the statements for plain error). DeLeon asserts that he has met the “plain error” standard. He has not. To warrant a reversal of his conviction, DeLeon “must show: (1) the occurrence of an error; (2) that the error is obvious or clear under current law; and (3) that the error substantially and adversely affeet[ed][his] rights.... ” United States v. Roberts, 119 F.3d 1006, 1014 (1st Cir.1997) (citing United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also Fed. R.Crim.P. 52(b)." } ]

[ { "docid": "23289394", "title": "", "text": "v. Cleaver, 590 F.Supp. 1209, 1210 (W.D. Mich.1984) (Rule 12(b)(6) dismissal of postal employee’s claim for failure to exhaust contractual remedies); but see Rivera v. Government of Virgin Islands, 635 F.Supp. 795, 797 (D.V.I.1986) (exhaustion of contractual remedies is an issue to be decided under Rule 12(b)(1)); Wynn v. Boeing Military Airplane Co., 595 F.Supp. 727, 728 (D.Kan.1984) (absent exhaustion of contractual remedies district court had no jurisdiction). Whether the district court properly dismissed under Rule 12(b)(1) affects this court’s standard of review because the district court clearly went outside the pleadings and considered Shinn’s affidavit but not Roman’s. It is proper for the district court to look beyond the jurisdictional allegations in the complaint and to view whatever evidence has been submitted in determining whether subject matter jurisdiction exists under Rule 12(b)(1). Grafon Corp. v. Hausermann, 602 F.2d 781, 782 (7th Cir.1979). But if the district court is considering whether a claim should be dismissed under Rule 12(b)(6) and “matters outside the pleadings are presented to and not excluded by the district court” the motion should be treated as one for summary judgment under Fed.R.Civ.P. 56(c). See Fed.R.Civ.P. 12(b); Malack v. Associated Physicians Inc., 784 F.2d 277, 279 (7th Cir.1986); Crawford v. United States, 796 F.2d 924, 927 (7th Cir.1986). Since the district court had subject matter jurisdiction and it considered matters outside the pleadings, we will review the dismissal under the same standard that we would a summary judgment motion. Summary judgment is proper only when the moving party has established that there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The existence of a genuine issue of material fact is a legal determination subject to de novo review. In re Colonial Discount Corp., 807 F.2d 594, 596 (7th Cir.1986). In considering a motion for summary judgment, all ambiguities and reasonable inferences are to be resolved against the moving party and in favor of the party opposing the motion. Brock v. American Postal Workers Union, 815 F.2d 466, 469 (7th Cir. March 26, 1987); see also" } ]

[ { "docid": "12962508", "title": "", "text": "dismiss for lack of standing and for failure to state a claim on which the court could grant relief. The court now resolves the defendants’ motion to dismiss. III. ANALYSIS A. The Court Denies the Defendants’ Rule 12(b)(1) Motion to Dismiss 1. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1) A challenge to the standing of a party, when raised as a motion to dismiss, proceeds pursuant to Rule 12(b)(1). Steffan v. Cheney, 733 F.Supp. 115, 115 (D.D.C.1989) (Gasch, J.) (stating that a motion to dismiss for lack of standing can only be brought under Federal Rule of Civil Procedure 12(b)(1)). The plaintiff bears the burden of establishing that the court has subject-matter jurisdiction. Tremel v. Bierman & Geesing, L.L.C., 251 F.Supp.2d 40, 42, 2003 WL 721911, at *2 (D.D.C. Feb. 27, 2003) (Walton, J.); Rasul v. Bush, 215 F.Supp.2d 55, 61 (D.D.C.2002) (Kollar Kotelly, J.). In considering a motion to dismiss for lack of subject-matter jurisdiction, the court should accept as true all of the factual allegations contained in the complaint. Scandinavian Satellite Sys., AS v. Prime TV Ltd., 291 F.3d 839, 844 (D.C.Cir.2002) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). Because subject-matter jurisdiction focuses on the court’s power to hear the plaintiffs claim, however, a court resolving a motion to dismiss under Rule 12(b)(1) must give the complaint’s factual allegations closer scrutiny than required for a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim. Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001) (citing 5A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ.2d § 1350). Moreover, the court is not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Instead, to determine whether it has jurisdiction over the case, the court may consider materials outside the pleadings. Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992)." }, { "docid": "9366815", "title": "", "text": "of interest with Elder Care Lines. Transit Express asserted that the trial court could properly exercise federal question jurisdiction over the complaint pursuant to 28 U.S.C. § 1331 because the action arose under the federal transit laws 49 U.S.C. § 5301 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq. The defendant disputed that federal jurisdiction was proper and thus moved to dismiss the Complaint for lack of subject matter jurisdiction and for failure to state a claim. The district judge granted defendant’s motion and dismissed the lawsuit with prejudice on March 16, 2000, due to the fact that federal subject matter jurisdiction was lacking because there was no federal question involved in the case. II. DISCUSSION A. Standard of Review We review the district court’s decision to dismiss an action under Rule 12(b)(1) of the Federal Rules of Civil Procedure de novo. Long v. Shorebank Development Corp., 182 F.3d 548, 554 (7th Cir.1999). In considering a motion to dismiss for lack of subject matter jurisdiction, the district court must accept the complaint’s well-pleaded factual allegations as true and draw reasonable inferences from those allegations in the plaintiffs favor. Rueth v. ERA, 13 F.3d 227, 229 (7th Cir.1993). B. Subject Matter Jurisdiction Fundamental to our law is the understanding that “[fjederal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986); see also Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Furthermore, 28 U.S.C. § 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Also, plaintiff-appellant Transit Express bears the burden of proving that jurisdiction is proper in this case. Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir.1987). Finally, we are cognizant of the Supreme Court’s admonition that “federal question jurisdiction arises" }, { "docid": "11233047", "title": "", "text": "826 F.2d 573, 576 (7th Cir.1987); Marina Entertainment Complex, Inc. v. Hammond Port Authority, 842 F.Supp. 367, 369 (N.D.Ind.1994). See also Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979) (“the party invoking jurisdiction has the burden of supporting the allegations of jurisdictional facts by competent proof’).' Disputes over material facts will not prevent a court from determining jurisdictional issues. Marina Entertainment Complex, 842 F.Supp. at 369. When ruling on a Rule 12(b)(1) motion, a court must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir.1995); Rueth v. United States Environmental Protection Agency, 13 F.3d 227, 229 (7th Cir.1993). Nevertheless, a court may properly look beyond the jurisdictional allegations of a complaint and view whatever evidence has been submitted on the issue to determine whether subject matter jurisdiction exists. Ezekiel, 66 F.3d at 897; Capitol Leasing Co. v. Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir.1993); Alliance Far Clean Coal v. Bayh, 888 F.Supp. 924, 929 (S.D.Ind.1995). See also 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1990). Where the movant has challenged the factual allegations of the party invoking the district court’s jurisdiction, the invoking party “must submit affidavits and other relevant evidence to resolve the factual dispute regarding the court’s jurisdiction.” Kontos, 826 F.2d at 576. II. STATEMENT OF FACTS Between August 1991 and August 1993, Plaintiffs children Angela and Adrian Leves-ter were students at Greenbriar Elementary School in the Metropolitan School District of Washington Township (“MSDWT”). (Affidavit of Mary Jo Dare, Director of Special Education for the Board of School Commissioners of the City of Indianapolis, ¶ 3; Exhibit A, 5/21/93 Letter from Marvis W. Ful-ford) In May 1991 while at Greenbriar, Angela was diagnosed as having a learning disability and was assigned to receive special tutoring called “resource room services” in addition to her regular classes. (Dare Aff., ¶ 4; Exhibit B, MSDWT Referral and Case Conference Report) On May 21, 1993 MSDWT informed Plaintiff that because she and" }, { "docid": "1049392", "title": "", "text": "whereby no more than “one person per bedroom plus one” could reside in any unit. In accordance with these rules, no more than two persons were permitted to rent a one-bedroom unit; no more than three persons could rent a two-bedroom unit; and no more than four persons could rent a three-bedroom unit. Since the complaints were filed with HUD, however, the occupancy limits have been increased to permit two occupants per bedroom in all units. The defendants have moved to dismiss this case on the grounds that their alleged conduct did not violate the Act and because HUD failed to comply with the requirements of the Act. According to the government’s complaint, SSHC and Razik filed their respective complaints in June, 1991. After conducting an investigation, the Secretary of HUD determined that reasonable cause existed to believe that the defendants had committed discriminatory housing practices. Accordingly, on September 22, 1992, the Secretary issued a Determination of Reasonable Cause and Charge of Discrimination pursuant to § 3610(g)(2)(A) of the Act, charging the defendants with violations of §§ 3604(a), (b), and (c). Lack of subject matter jurisdiction is appropriately raised in a motion to dismiss under Fed.R.Civ.P. 12(b)(1). Barnhart v. United States, 884 F.2d 295, 296 (7th Cir.1989), cert. denied, 495 U.S. 957, 110 S.Ct. 2561, 109 L.Ed.2d 743 (1990). Rule 12(b)(1) motions to dismiss in the civil rights context are scrutinized with special care, Mercado v. Kingsley Area Schools, 727 F.Supp. 335, 338 (W.D.Mich.1989), and are disfavored. Mahoney v. National Org. for Women, 681 F.Supp. 129, 135 (D.Conn.1987). Once questioned, however, it becomes the plaintiffs burden to establish that all jurisdictional requirements have been satisfied. Kontos v. U.S. Dept. of Labor, 826 F.2d 573, 576 (7th Cir.1987). In this context, it is proper for the court to look beyond the jurisdictional allegations in the complaint and to view whatever evidence has been submitted in response to the motion. Roman v. United States Postal Serv., 821 F.2d 382, 385 (7th Cir.1987). The defendants’ motion to dismiss claims that the Secretary’s September 22 issuance exceeded the time limit statutorily provided for the" }, { "docid": "8853389", "title": "", "text": "U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C.Cir.2000). A court has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001). For this reason, ‘ “the [pjlaintiffs factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed.1987) (alteration in original)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens, 402 F.3d at 1253; see also Venetian Casino Resort, L.L.C. v. E.E.O.C., 409 F.3d 359, 366 (D.C.Cir.2005) (“given the present posture of this case — a dismissal under Rule 12(b)(1) on ripeness grounds — the court may consider materials outside the pleadings”). III. Analysis The FDA moves to dismiss Plaintiffs’ Complaint on the grounds that Plaintiffs lack standing, their claims are not ripe for adjudication, the FDA’s enforcement discretion is not reviewable, and Plaintiffs have failed to state a claim for unreasonable delay under the APA. The Court need only reach the first two. A. Standing Article III of the United States Constitution limits the jurisdiction of the federal courts to resolving “Cases” and “Controversies.” U.S. Const, art. Ill, § 2, cl. 1. A party’s standing “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130. To have standing, a party must, at a constitutional minimum, meet the following criteria. 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.]’ ” ” Id. at 560, 112 S.Ct. 2130 (citations omitted). Second, “there must be a causal connection between the injury and the conduct complained of" }, { "docid": "6602890", "title": "", "text": "S.Ct. 396, 70 L.Ed.2d 212 (1981))). The Defendants in the instant case make factual assertions regarding HUD’s non-eomplianee with certain procedural requirements of the Fair Housing Act. Defendants argue first that HUD neither completed its investigation within 100 days after receiving the complaints against the Defendants, nor notified the Defendants of any inability to complete the investigation within that period. Second, the Defendants assert that HUD failed to engage in good faith conciliation. Such procedural deficiencies, the Defendants conclude, deny this Court subject matter jurisdiction over the action. Since the Defendants make a “factual attack” on subject matter jurisdiction, this Court may look beyond the pleadings to determine whether jurisdiction exists. However, the Court finds it unnecessary to do so because the weight of relevant authority is contrary to the Defendants’ position. Defendants rely on U.S. v. Aspen Square Management Co., Inc., 817 F.Supp. 707 (N.D.Ill.1993), vacated and dismissed June 28, 1993. In that case, the court held that it lacked subject matter jurisdiction over an action brought by the United States under the Fair Housing Act, due to procedural violations similar to those alleged by the Defendants in the instant case. However, as the Plaintiff points out, the same court later disagreed with the holding in Aspen and held that the 100-day period of § 3610 is neither a jurisdictional bar nor a statute of limitations. U.S. v. Beethoven Associates Limited Partnership, 843 F.Supp. 1257, 1264 (N.D.Ill. 1994). The court was persuaded by ease law in a number of jurisdictions indicating general agreement that the 100-day period is not mandatory and does not affect a court’s jurisdiction. See, e.g., Baumgardner v. HUD, 960 F.2d 572 (6th Cir.1992); U.S. v. Forest Dale, Inc., 818 F.Supp. 954 (N.D.Tex.1993); U.S. v. Curlee, 792 F.Supp. 699 (C.D.Cal.1992); U.S. v. Scott, 788 F.Supp. 1555 (D.Kan.1992). The cases further indicate that other procedural violations, such as failure to notify defendants of HUD’s need for additional time to investigate complaints, are not necessarily detrimental to subsequent actions to enforce the Fair Housing Act. HUD’s failure to engage in good faith conciliation is likewise not a jurisdictional" }, { "docid": "11233046", "title": "", "text": "ENTRY BARKER, Chief Judge. Plaintiff Constance E. Smith (“Plaintiff’) has brought an Amended Complaint against Indianapolis Public Schools (“Defendant” or “IPS”) for its alleged failure to provide Plaintiffs children with a free appropriate public education in violation of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. This matter is currently before the Court on Defendant’s motion to dismiss the Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1), on the grounds that this Court lacks jurisdiction to hear the claim because Plaintiff has failed to exhaust administrative remedies as required by the statute. Defendant also moves to strike evidence submitted by Plaintiff in her response brief to Defendant’s motion to dismiss. For the reasons stated below, the Court grants Defendant’s motion to dismiss and denies Defendant’s motion to strike as moot. I. STANDARD OF REVIEW Where a movant has challenged a district court’s subject matter jurisdiction, the party invoking jurisdiction has the burden of establishing that all jurisdictional requirements have been satisfied. Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir.1987); Marina Entertainment Complex, Inc. v. Hammond Port Authority, 842 F.Supp. 367, 369 (N.D.Ind.1994). See also Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979) (“the party invoking jurisdiction has the burden of supporting the allegations of jurisdictional facts by competent proof’).' Disputes over material facts will not prevent a court from determining jurisdictional issues. Marina Entertainment Complex, 842 F.Supp. at 369. When ruling on a Rule 12(b)(1) motion, a court must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir.1995); Rueth v. United States Environmental Protection Agency, 13 F.3d 227, 229 (7th Cir.1993). Nevertheless, a court may properly look beyond the jurisdictional allegations of a complaint and view whatever evidence has been submitted on the issue to determine whether subject matter jurisdiction exists. Ezekiel, 66 F.3d at 897; Capitol Leasing Co. v. Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir.1993); Alliance Far Clean Coal v. Bayh, 888 F.Supp. 924, 929" }, { "docid": "19975185", "title": "", "text": "argues that Garelli Wong’s CFAA count fails to state a claim upon which relief can be granted and contends that if the CFAA claim is dismissed, Garel-li Wong’s two remaining counts should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) because federal jurisdiction would not be present. LEGAL STANDARD Fed.R.Civ.P. 12(b)(6) evaluates the legal sufficiency of a plaintiffs complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). In ruling on a motion to dismiss, a court must draw all reasonable inferences in favor of the plaintiff, construe all allegations of a complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski v. First Nat’l Bank of Cicero, 998 F.2d 459, 461 (7th Cir.1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.1991). To be cognizable, the factual allegations contained within a complaint must raise a claim for relief “above the speculative level.” Bell Atlantic Corp. v. Twombly, — U.S. -, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). However, a pleading need only convey enough information to allow the defendant to understand the gravamen of the complaint. Payton v. Rushr-Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 627 (7th Cir.1999). The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) is to dismiss claims over which a federal court lacks subject matter jurisdiction. Jurisdiction is the “power to decide” and must be conferred upon a federal court. In re Chicago, Rock Island & Pac. R.R. Co., 794 F.2d 1182, 1188 (7th Cir.1986). The plaintiff bears the burden of establishing that the jurisdiction requirements have been met. see Kontos v. U.S. Dep’t of Labor, 826 F.2d 573, 576 (7th Cir.1987). When a defendant moves for dismissal pursuant to Fed. R.Civ.P. 12(b)(1), the plaintiff must support its allegations with competent proof of jurisdictional facts. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942). With these principles in mind, we consider the instant motion. DISCUSSION I. Computer Fraud and Abuse Act The subject matter jurisdiction of Garel-li Wong’s complaint is premised entirely upon its CFAA" }, { "docid": "12064120", "title": "", "text": "20-day time limit and did not state an adequate excuse for such failure. We must decide whether the dismissal of her agency complaint for failure to comply with the administrative time limit bars her suit in federal court. We find that it does and affirm the dismissal of McGinty II. The time limit for filing a notice of appeal to the EEOC, as set forth in 29 C.F.R. § 1613.233 , is 20 days. McGinty was made aware of the 20-day time limit in the Department of the Army’s final decision. The EEOC determined that McGinty failed to submit adequate justification for extending the filing period. In Kontos v. United States Dep’t. of Labor, 826 F.2d 573 (7th Cir.1987), the plaintiff filed an age discrimination complaint against the Department of Labor after the expiration of a 30-day time limit set forth in the applicable section of the regulations. Id. at 575. The agency ruled against the plaintiff because he did not file within the time limit. Id. The EEOC, on appeal, summarily affirmed. Id. The plaintiff then filed suit in federal district court, and the government moved to dismiss for failure to file a timely agency claim. Id. The district court held that the complaint was time-barred and the court therefore was deprived of subject matter jurisdiction. Id. On appeal, this court held that the time limits for the filing of an initial agency complaint were jurisdictional. Id. at 576. We explained, “In Simms v. Heckler, 725 F.2d 1143 (7th Cir.1984), this court held, based on considerations of sovereign immunity, that the time limits for filing employment discrimination claims against the federal government create a prerequisite to federal court jurisdiction.” Kontos, 826 F.2d at 576. Simms involved a discrimination claim brought under Title VII. We recently overruled Simms and held that sovereign immunity concerns should be subordinated to the goals of Title VII, and federal employees should be afforded the same treatment private employees were given in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), which held that administrative deadlines in suits" }, { "docid": "7872089", "title": "", "text": "for injunc-tive relief. The state court, however, refused to assess attorney’s fees on the plaintiffs, reasoning that the action was not frivolous or meritless. Following the dismissal of the Haberers from the state suit, the Haberers and DSNWK closed the sale on the property on October 20, 1989, nineteen days later than the original closing date. On August 3, 1989 — prior to the closing of the sale — the Haberers filed a housing discrimination complaint with the Department of Housing and Urban Development (“HUD”), pursuant to 42 U.S.C. § 3610(a)(1)(A), claiming that the defendants sought to block the sale of their home to DSNWK because of the handicaps of the prospective residents. HUD undertook the investigation of the Haberers’ claim under the statutory requirements of § 3610(a)(1)(B). On December 1, 1989, HUD notified the complainants and twelve of the defendants that a determination had not yet been made and that the matter was still under investigation. Thereafter, HUD attempted unsuccessfully to conciliate the complaint, and prepared a final investigative report. On June 15, 1990 — more than one hundred days after the filing of the complaint — HUD issued a determination of Reasonable Cause, and filed a Charge of Discrimination with a HUD administrative law judge against the 31 defendants. The defendants, under § 3612(a), filed their election to proceed in federal district court. HUD, pursuant to § 3612(o), then authorized suit on behalf of the Haberers. DISCUSSION 1. DEFENDANTS’ MOTION TO DISMISS The defendants move to dismiss this action on the basis of the Secretary’s failure to complete the investigation within the 100-day statutory period. The defendants argue that “the jurisdictional requirement” of 42 U.S.C. § 3610(g) mandates that the Secretary complete the reasonable cause determination within 100 days from the date of filing of the complaint or, in the alternative, notify the parties in writing of the reasons for not doing so. Because HUD failed to comply with the time requirements of the Act, argue the defendants, this action is time-barred, and the court is consequently without jurisdiction to adjudicate the case. Although the defendants frame their" }, { "docid": "1049393", "title": "", "text": "of §§ 3604(a), (b), and (c). Lack of subject matter jurisdiction is appropriately raised in a motion to dismiss under Fed.R.Civ.P. 12(b)(1). Barnhart v. United States, 884 F.2d 295, 296 (7th Cir.1989), cert. denied, 495 U.S. 957, 110 S.Ct. 2561, 109 L.Ed.2d 743 (1990). Rule 12(b)(1) motions to dismiss in the civil rights context are scrutinized with special care, Mercado v. Kingsley Area Schools, 727 F.Supp. 335, 338 (W.D.Mich.1989), and are disfavored. Mahoney v. National Org. for Women, 681 F.Supp. 129, 135 (D.Conn.1987). Once questioned, however, it becomes the plaintiffs burden to establish that all jurisdictional requirements have been satisfied. Kontos v. U.S. Dept. of Labor, 826 F.2d 573, 576 (7th Cir.1987). In this context, it is proper for the court to look beyond the jurisdictional allegations in the complaint and to view whatever evidence has been submitted in response to the motion. Roman v. United States Postal Serv., 821 F.2d 382, 385 (7th Cir.1987). The defendants’ motion to dismiss claims that the Secretary’s September 22 issuance exceeded the time limit statutorily provided for the determination of whether an incident of housing discrimination occurred. The Act prescribes certain administrative prerequisites to the bringing of formal enforcement proceedings. As an initial matter, an aggrieved individual must file a complaint with HUD identifying the alleged discriminatory practice. 42 U.S.C. § 3610(a). Once the administrative complaint is filed, HUD is obliged to notify the respondent of the complaint and conduct an investigation of the alleged discriminatory practice. 42 U.S.C. § 3610(a) and (b). After conducting its investigation, if HUD finds that reasonable cause exists to believe that a violation of the Act has occurred, HUD must issue a formal charge for further proceedings under the Act. 42 U.S.C. § 3610(g). Once such a charge is issued, any party may elect to have the matter resolved in a civil action, whereupon the Attorney General must commence an appropriate civil action. 42 U.S.C. § 3612(a) and (o). In addition to specifying the administrative framework necessary to bring a fair housing discrimination action, the Act also specifies certain time limits within which the Secretary must proceed." }, { "docid": "7976940", "title": "", "text": "MEMORANDUM GAWTHROP, District Judge. This case concerns allegations by an attorney, suing under the name John Doe, that he was discharged from his position at the law firm William Shapiro, Esquire, P.C., because he was diagnosed with AIDS. The complaint includes claims under the Americans with Disabilities Act (Count I), the Pennsylvania Human Relations Act (Count II), and under Pennsylvania common law for intentional infliction of emotional distress (Count III). Upon the following reasoning, I shall deny the motion as to Counts I and II, and grant it as to Count III. The defendants move under Fed. R.Civ.P. 12(b)(1) to dismiss Count I, a claim under the Americans with Disabilities Act (“ADA” or “the Act”), for lack of subject matter jurisdiction. Their attack is not directed at the manner in which jurisdiction is pled, but rather calls into question the actual existence of jurisdiction. See Young v. Francis, 820 F.Supp. 940, 943 (E.D.Pa.1993) (explaining distinction between facial and factual attacks on jurisdiction). Whereas on a motion to dismiss under Rule 12(b)(6) the plaintiff is entitled to have all reasonable inferences drawn in his favor, when jurisdiction is challenged under Rule 12(b)(1), the burden is on the plaintiff to prove jurisdiction exists. Lattanzio v. Security Nat’l Bank, 825 F.Supp. 86, 88 (E.D.Pa.1993). In assessing a Rule 12(b)(1) motion, the parties may submit and the court may consider affidavits and other relevant evidence outside the pleadings. Berardi v. Swanson Memorial Lodge No. 48 of Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir.1990); Charles A. Wright & Arthur R. Miller, 5A Federal Practice and Procedure: Civil 2d § 1350, at 213 (1990). The defendants claim that because Mr. Doe was one of only, at most, ten people employed by William Shapiro, Esq., P.C. (“the Shapiro Law Firm”), the firm is not covered by the ADA. The ADA defines the term employer as: a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person. 42" }, { "docid": "3395585", "title": "", "text": "November 1982. II. Section 552a(g)(5) of the Privacy Act provides: An action to enforce any liability created under this section may be brought in the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, without regard to the amount in controversy, within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation. In Diliberti, supra, we held this two-year limitations period to be jurisdictional because it is an “integral condition of the sovereign’s consent to be sued under the Privacy Act.” Id. at 1262. Consequently, the failure to file suit within the time period “deprives the federal courts of subject matter jurisdiction over the action.” Id. Because § 552a(g)(5)’s time limits are jurisdictional, it is Bowyer’s burden to establish that they have been met. Kontos v. Dept. of Labor, 826 F.2d 573, 576 (7th Cir.1987). Both sides submitted documentary evidence in the form of affidavits, depositions, and declarations in connection with defendants’ motion to dismiss. See Crawford v. United States, 796 F.2d 924, 928-29 (7th Cir.1986). District courts properly may look beyond the complaint’s jurisdictional allegations and view whatever evidence has been submitted to determine whether in fact subject matter jurisdiction exists. Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979). The facts presented may give rise to a factual controversy, “the resolution of which requires the district court to weigh the conflicting evi dence in arriving at the factual predicate upon which to base the legal conclusion that subject matter jurisdiction exists or ... not.” Id. We review these findings under the clearly erroneous standard. Casio, Inc. v." }, { "docid": "7872090", "title": "", "text": "— more than one hundred days after the filing of the complaint — HUD issued a determination of Reasonable Cause, and filed a Charge of Discrimination with a HUD administrative law judge against the 31 defendants. The defendants, under § 3612(a), filed their election to proceed in federal district court. HUD, pursuant to § 3612(o), then authorized suit on behalf of the Haberers. DISCUSSION 1. DEFENDANTS’ MOTION TO DISMISS The defendants move to dismiss this action on the basis of the Secretary’s failure to complete the investigation within the 100-day statutory period. The defendants argue that “the jurisdictional requirement” of 42 U.S.C. § 3610(g) mandates that the Secretary complete the reasonable cause determination within 100 days from the date of filing of the complaint or, in the alternative, notify the parties in writing of the reasons for not doing so. Because HUD failed to comply with the time requirements of the Act, argue the defendants, this action is time-barred, and the court is consequently without jurisdiction to adjudicate the case. Although the defendants frame their motion as a motion to dismiss, they rely on the affidavit of counsel and other external documentation to support their motion.. In a R. 12(b)(6) motion, as the defendants’ motion purports to be, the court cannot consider matters outside the pleading unless the motion to dismiss is converted into a summary judgment motion and all parties are given the opportunity to present pertinent material. Fed. R.Civ.P. 12(b); Franklin v. Oklahoma City Abstract & Title Co., 584 F.2d 964, 966-67 (10th Cir.1978). Because the affidavit and external documents are not necessary for the disposition of this motion, the court will confine its consideration to matters within the four corners of the pleading, and will not treat the defendants’ motion to dismiss as a summary judgment motion. Section 3610(a)(l)(B)(iv) of the Fair Housing Act provides that “the Secretary shall make an investigation of the alleged discriminatory housing practice and complete such investigation within 100 days after the filing of the complaint ... unless it is impracticable to do so.” Similarly, section 3610(g) states that the Secretary “shall," }, { "docid": "11742020", "title": "", "text": "subject to United States regulatory oversight and must com ply with the Commodity Exchange Act. During 1994 and 1996, most copper traded in the United States was traded on the LME. OPINION I. MOTION TO DISMISS STANDARD Defendants’ main challenge to plaintiffs’ complaint is the alleged lack of subject matter jurisdiction. They attack subject matter jurisdiction in fact, rather than on the face of the pleading, and have filed several affidavits containing jurisdictional facts in support of their motion. “[Sjubject matter jurisdiction deals with the power of the court to hear the plaintiffs claims in the first place, and therefore imposes upon courts an affirmative obligation to ensure that they are acting within the scope of their jurisdictional power.” 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1850 at 185 (2000 Supp.). Plaintiff has the burden of proving subject matter jurisdiction. “In addition, the pleading will be read as a whole with any relevant specific allegations found in the body of the complaint taking precedence over the formal jurisdictional allegation, and with all uncontroverted factual allegations being accepted as true.” 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 at 219-20 (2d ed.1990). “ ‘The district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.’ ” Long v. Shorebank Development Carp., 182 F.3d 548, 554 (7th Cir.1999) (quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993) (per curiam)). II. SUBJECT MATTER JURISDICTION OVER SHERMAN ACT CLAIMS A. Antitrust Laws and International Trade The Sherman Act, 15 U.S.C. §§ 1-7, applies to trade with foreign nations as well as to domestic interstate commerce. It does not apply to all aspects of international trade; Congress lacks the power to criminalize behavior that has no consequences within the United States. There must be a jurisdictional nexus between the anticompetitive conduct and commerce within the United States. See United States v. Aluminum Co. of America (Alcoa), 148 F.2d 416, 443" }, { "docid": "19975186", "title": "", "text": "only convey enough information to allow the defendant to understand the gravamen of the complaint. Payton v. Rushr-Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 627 (7th Cir.1999). The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) is to dismiss claims over which a federal court lacks subject matter jurisdiction. Jurisdiction is the “power to decide” and must be conferred upon a federal court. In re Chicago, Rock Island & Pac. R.R. Co., 794 F.2d 1182, 1188 (7th Cir.1986). The plaintiff bears the burden of establishing that the jurisdiction requirements have been met. see Kontos v. U.S. Dep’t of Labor, 826 F.2d 573, 576 (7th Cir.1987). When a defendant moves for dismissal pursuant to Fed. R.Civ.P. 12(b)(1), the plaintiff must support its allegations with competent proof of jurisdictional facts. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942). With these principles in mind, we consider the instant motion. DISCUSSION I. Computer Fraud and Abuse Act The subject matter jurisdiction of Garel-li Wong’s complaint is premised entirely upon its CFAA count. As such, we will look to the sufficiency of this claim first. As Nichols correctly points out, the complaint does not specify the sections of the statute upon which it relies. However, 18 U.S.C. § 1030(g) mandates that a civil action pursuant to the CFAA “may be brought only if the conduct involves 1 of the factors set forth in clause (i), (ii), (iii), (iv), or (v) of subsection (a)(5)(B).” The allegations in Garelli Wong’s complaint contain language that could apply to violations of § 1030(a)(5)(B)® as it pertains to § 1030(a)(5) (A)(i), (ii), and (in): Whoever- (5)(A)(i) knowingly causes the transmission of ... information ... and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; (ii) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or (in) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage ...; and (5)(B)(i) by conduct described in clause (i), (ii), or (iii) of subparagraph (A), caused" }, { "docid": "6602891", "title": "", "text": "Housing Act, due to procedural violations similar to those alleged by the Defendants in the instant case. However, as the Plaintiff points out, the same court later disagreed with the holding in Aspen and held that the 100-day period of § 3610 is neither a jurisdictional bar nor a statute of limitations. U.S. v. Beethoven Associates Limited Partnership, 843 F.Supp. 1257, 1264 (N.D.Ill. 1994). The court was persuaded by ease law in a number of jurisdictions indicating general agreement that the 100-day period is not mandatory and does not affect a court’s jurisdiction. See, e.g., Baumgardner v. HUD, 960 F.2d 572 (6th Cir.1992); U.S. v. Forest Dale, Inc., 818 F.Supp. 954 (N.D.Tex.1993); U.S. v. Curlee, 792 F.Supp. 699 (C.D.Cal.1992); U.S. v. Scott, 788 F.Supp. 1555 (D.Kan.1992). The cases further indicate that other procedural violations, such as failure to notify defendants of HUD’s need for additional time to investigate complaints, are not necessarily detrimental to subsequent actions to enforce the Fair Housing Act. HUD’s failure to engage in good faith conciliation is likewise not a jurisdictional issue. Instead, a court examines conciliation efforts when deciding whether to stay the proceedings to allow further conciliation, or upon reviewing any penalty that may have been imposed. Morgan v. Secretary of HUD, 985 F.2d 1451, 1456-1457 (10th Cir.1993). This Court makes no factual finding regarding the alleged procedural violations. However, absent mandatory precedent in the Eleventh Circuit Court of Appeals, this Court is persuaded that procedural violations such as those alleged by the Defendants do not raise a jurisdictional issue. Accordingly, this action to enforce the Fair Housing Act may not be dismissed for lack of subject matter jurisdiction due to HUD’s alleged procedural violations of 42 U.S.C. § 3610 regarding the 100-day investigation period, notification of delay, or good faith conciliation. B. Motion to Dismiss for Failure to State a Claim A court should not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78" }, { "docid": "6602889", "title": "", "text": "suffer irreparable harm without such relief; and (4) the complaint fails to state a claim upon which to award punitive damages in that no specific discriminatory acts were alleged which evidence willful violation of the Fair Housing Act. II. DISCUSSION A. Motion to Dismiss for Lack of Subject Matter Jurisdiction Attacks on subject matter jurisdiction under Rule 12(b)(1), Fed.R.Civ.P. may be either “facial” or “factual”. “Facial attacks” require a court to examine the face of a complaint to determine whether it alleges a basis for subject matter jurisdiction. First Union National Bank of Florida v. North Beach Professional Office Complex, Inc., 841 F.Supp. 399, 402 (M.D.Fla.1993) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.1990)). “Factual attacks” reach beyond the complaint to challenge subject matter jurisdiction in fact, and a court may consider “‘matters outside the pleadings, such as testimony and affidavits.’” Bowman v. U.S., 848 F.Supp. 979, 982 (M.D.Fla.1994) (quoting Lawrence v. Dunbar, 919 F.2d at 1528 (quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.) cert. denied 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981))). The Defendants in the instant case make factual assertions regarding HUD’s non-eomplianee with certain procedural requirements of the Fair Housing Act. Defendants argue first that HUD neither completed its investigation within 100 days after receiving the complaints against the Defendants, nor notified the Defendants of any inability to complete the investigation within that period. Second, the Defendants assert that HUD failed to engage in good faith conciliation. Such procedural deficiencies, the Defendants conclude, deny this Court subject matter jurisdiction over the action. Since the Defendants make a “factual attack” on subject matter jurisdiction, this Court may look beyond the pleadings to determine whether jurisdiction exists. However, the Court finds it unnecessary to do so because the weight of relevant authority is contrary to the Defendants’ position. Defendants rely on U.S. v. Aspen Square Management Co., Inc., 817 F.Supp. 707 (N.D.Ill.1993), vacated and dismissed June 28, 1993. In that case, the court held that it lacked subject matter jurisdiction over an action brought by the United States under the Fair" }, { "docid": "1049398", "title": "", "text": "within the proscribed 100-day period, and this recognition is manifested in the “impracticability” exception. See 54 Fed.Reg. 3264. Although the Act repeatedly admonishes HUD to meet the 100-day deadline, HUD is free to disregard the limitation period if compliance is impracticable, but it must also explain in writing the impracticability. Failure to require compliance with either the 100-day limitation period or the impracticability notice would eviscerate the meaning of both provisions. A statute must be construed as a whole rather than relying on one word, phrase or sentence in the statute. Philbrook v. Glodgett, 421 U.S. 707, 95 S.Ct. 1893, 44 L.Ed.2d 525 (1975); Berman v. Schweiker, 713 F.2d 1290, 1305 (7th Cir.1983). In reading both sentences of § 3610(g)(1) as optional, the government has ignored the cardinal principle of statutory construction that “in construing statutes [the court] is obligated to give effect, if possible, to every word Congress used.” Reiter v. Sonotone Corp., 442 U.S. 330, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979). The most logical and well-reasoned legal interpretation of § 3610(g)(1), and the interpretation most consistent with Congressional intent, is that HUD must either determine reasonable cause within 100 days from the filing of a complaint or provide written notice to the respondent explaining the impracticability of doing so. In the instant case, HUD has failed to meet the 100-day limitation period of the Act and has failed to timely provide a written explanation for its reasons for doing so. Requiring the defendants to expend time and money to defend an action unreasonably filed over 350 days after the statutory limitation period would be grossly unfair to the defendants and would unjustifiably ignore the explicit language of the Act. Accordingly, defendants’ 12(b)(1) motion to dismiss for lack of jurisdiction based on HUD’s failure to comply with the requirements of the Act is granted. CONCLUSION For the reasons stated above, the defendants’ motion to dismiss is granted. IT IS SO ORDERED. . The only inference provided by the government regarding HUD’s delay is that HUD has received thousands of complaints under the Act. The plaintiff does not allege" }, { "docid": "3395586", "title": "", "text": "the failure to file suit within the time period “deprives the federal courts of subject matter jurisdiction over the action.” Id. Because § 552a(g)(5)’s time limits are jurisdictional, it is Bowyer’s burden to establish that they have been met. Kontos v. Dept. of Labor, 826 F.2d 573, 576 (7th Cir.1987). Both sides submitted documentary evidence in the form of affidavits, depositions, and declarations in connection with defendants’ motion to dismiss. See Crawford v. United States, 796 F.2d 924, 928-29 (7th Cir.1986). District courts properly may look beyond the complaint’s jurisdictional allegations and view whatever evidence has been submitted to determine whether in fact subject matter jurisdiction exists. Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979). The facts presented may give rise to a factual controversy, “the resolution of which requires the district court to weigh the conflicting evi dence in arriving at the factual predicate upon which to base the legal conclusion that subject matter jurisdiction exists or ... not.” Id. We review these findings under the clearly erroneous standard. Casio, Inc. v. S.M. & R. Co., 755 F.2d 528, 530 (7th Cir.1985) (“it is the character of the judge’s finding as a finding of fact, rather than the character of the decision in which it is embodied, that brings the ‘clearly erroneous’ standard into play”). A finding is clearly erroneous only if, after reviewing the entire evidence, we are left “with the definite and firm conviction that a mistake has been committed.” Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1970). “ ‘If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it.' ” Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir.1987) (quoting Anderson, 470 U.S. at 573-74, 105 S.Ct. at 1511). Bowyer advances two arguments on appeal as to why his suit was timely. First, he argues that the statute of limitations should not have commenced until the time he discovered (a) that defendants misrepresented the existence of the records (McClanahan’s statement" } ]

[ { "docid": "16642797", "title": "", "text": "and that the “accident” did not cause the damage. To allow plaintiff, with the knowledge that it had of contamination in the batch of sugar from which the Taylorville shipment was taken, to take a chance that the contamination would not be discovered and then impose the loss upon the insurer when the gamble failed would be to countenance insurance against one’s deliberate misconduct. A contract of insurance to indemnify a person for damages resulting from his own intentional misconduct is void as against public policy and the courts will not construe a contract to provide such coverage. Isenhart v. General Casualty Co., 233 Or. 49, 377 P.2d 26 (1962), Fidelity-Phenix Fire Ins. Co. v. Murphy, 226 Ala. 226, 146 So. 387 (1933), 9 Couch, Insurance 2d § 39:15 (1956). We think that plaintiff had the duty to prevent the harm which occurred. “It is the general rule that one who is injured by the wrongful acts of another, whether as the result of a tort or of a breach of contract, is bound to exercise reasonable care and diligence to avoid loss or to minimize or lessen the resulting damage, and, to the extent that his damages are the result of his active and unreasonable enhancement thereof, or due to this failure to exercise such care, he cannot recover. * * * He must do nothing to aggravate his loss, but must do all he can to mitigate or reduce it.” Commodity Credit Corp. v. Rosenberg Bros. & Co., 243 F.2d 504, 511 (9th Cir. 1957). Since this is so, we think an insured who is able to prevent damages entirely should be under a duty to do so. Good faith requires no less. The widespread adoption of the Uniform Commercial Code, § 1-203, imposing an obligation of good faith in the performance of every contract or duty within the Code, indicates a growing acceptance of this notion in commercial transactions. We see no reason why a similar obligation of good faith should not also be imposed upon plaintiff in this case. Farnsworth, Good Faith Performance and Commercial Reasonableness" } ]

[ { "docid": "4213369", "title": "", "text": "restore service over the bridge would have been substantially less, even though the final washout was directly attributable to Agnes. Of the $100,000 figure for March 1975, Mr. Wentz testified that $15,000 is attributable to further deterioration of the bridge since June of 1973 due to lack of maintenance; the remaining $85,000 would therefore represent repair cost attributable to Agnes and to pre-1972 deferred maintenance, adjusted to reflect 1975 prices. Defendants’ experts submitted the only testimony as to the cost of repairing the bridge over Old Annapolis Road. At 1978 prices, this figure was $3,500, and by 1975 the cost had risen to $9,000 due to inflation and further physical deterioration. None of this cost is attributable to Hurricane Agnes. In summary, this court finds the 1972 and 1975 cost to restore service on the B & A line to the Aleo plant to be as follows: In 1972, the total cost would have been approximately $84,000, of which $35,000 is definitely not attributable to Agnes. Of the remaining $49,000, which involves mostly repairs to the Patapsco River bridge, a substantial portion is not attributable to Agnes, but rather to B & A’s failure to perform routine maintenance over the years. At 1975 prices, the total cost of restoring service is approximately $162,000, of which $66,000 is definitely not attributable to Agnes. Of the remaining $96,000, a substantial portion is again attributable to B & A’s deferred maintenance policy concerning the Patapsco River bridge. D. Length of time within which repairs could be completed. Once the repair work is begun, the testimony was generally agreed that it would take two to three months for completion. However, there was little testimony as to when a contractor could be hired to begin work. Alco’s expert, in accordance with his customary practice, would not recommend a contractor. Hence, the only evidence presented as to availability of contractors was that of defendants’ track expert, Rhinehart Railroad Construction, Inc., which indicated that Rhinehart would not be available to begin repairs until September 1, 1975. Accordingly, this court finds that repairs would not likely be completed" }, { "docid": "22588889", "title": "", "text": "the contract is an individual matter that is not common to the public. Id. Also, those who have established businesses which make common use of the public right that the nuisance infringes have been allowed recovery. When a river is blocked, for example, a steamboat line operating on it and a company that rafts logs or collects tolls for passage have been permitted to maintain the action. There are also cases in which commercial fisheries making a localized use of public waters have been allowed to recover under nuisance law. And although plaintiffs who are delayed by a public nuisance cannot recover money for the delay itself (e.g., the profitable opportunities that the plaintiff had to forego), they can recover for actual additional expenses, such as extra fuel, additional crew expenses, and greater demurrage charges. The Supreme Court of Louisiana has recognized that a business may sustain the requisite “particular kind of business damages as a consequence of the obstruction of a navigable channel”. Pharr v. Morgan’s L. & T.R. & S.S. Co., La.1905, 115 La. 138, 38 So. 943. In that case, the defendant had negligently damaged a railroad bridge spanning the Atchafalaya River. The barges could pass under the repair framework, but the steamboat could not. The plaintiff was forced to employ an extra steamboat to transport the sugar cane from the sugar fields below the bridge to the refinery above the bridge. Id., 38 So. at 944. The Court held: “The negligent breaking of the bridge was the primary, paramount cause, which lead to the obstruction of navigation as well as the work of reparation; and if, as argued, such work was the immediate cause of the injury, it was simply an intervening cause set in motion by the party originally in fault. It may be said that the remedy was worse than the disease. “We therefore are of opinion that defendants are responsible in damages caused by the obstruction of navigation.” Id. at 945. The Louisiana Supreme Court awarded damages for the extra transportation costs incurred, but refused to award delay damages because of the uncertainty" }, { "docid": "9467953", "title": "", "text": "which it received. In support of this contention, it has introduced evidence to show that the piles and timbers constituting the wing and fender of the eastern span of the bridge, were at the time of the accident, rotten and wholly unfit for the purpose for which they were designed and constructed. A careful examination of the testimony upon this point, however, satisfactorily shows that only the sappy portion of the heads of the piles were decayed, which condition will, according to the evidence, exist after a year or two of service, where they are not located wholly under water. The heart of the piles,-however, was sound, and the braces and sheathing of the fender had been renewed about three years before, so that the structure as a whole was, when the accident occurred, in reasonably good repair and condition. This is shown not only by direct evidence, but inferentially by the fact that only a day or two before the accident in question, the same fender had been run into by a vessel, but withstood the shock without apparent injury. That the blow which the fender received from the scow when the accident in question happened, was of great force and violence, must be inferred from the fact that a stick of hard yellow pine of the best quality, twelve inches square, which had been in use three years and was perfectly sound, was broken directly in two. The severity of the blow must therefore be accepted as a fact, notwithstanding evidence on the part of the defendant that it was of so slight a character that the paint on the bow of the barge was not even scratched. Such testimony under the circumstances is incredible and must be disregarded. “Upon the question of damages, it appears that the eastern span of the bridge was, according to the evidence, totally destroyed and the fender nearly so. The iron with which the framework of the span was constructed was bent and twisted, and the entire structure thrown into the river, and undisputed evidence shows that it would have cost more" }, { "docid": "23284517", "title": "", "text": "heavy construction and has had considerable experience in work requiring the use of cofferdams. 2. This case concerns the construction of a bridge substructure by the plaintiff for the defendant, and involves (1) the question whether plaintiff in the construction of concrete Pier 1-N encountered changed conditions; (2) if changed conditions were encountered, the further questions whether they caused plaintiff increased costs (a) in driving interlocking steel sheet piles for the cofferdam, (b) in excavating for the pier, and (c) in driving steel H piles to support the pier; and (3) whether plaintiff shall be relieved of liquidated damages which have been assessed against it in the amount of $10,000. 3. Defendant invited bids on March 1,1946, to be opened on April 9,1946. 4. The work for which bids were requested and the contract later executed, consisted of the construction of 32 piers and 2 abutments for a bridge over the Chesapeake and Delaware Canal at Chesapeake City, Maryland. 5. The two main piers were 1-N and 1-S. Pier 1-N was intended to support the north end of the steel work for the bridge and approaching roadway above the canal, and Pier 1-S was to support the south end of the steel work for the bridge and the approaching roadway. Pier 1-N was in the channel of the canal. The canal was approximately 600 feet wide. 6. Available to prospective bidders were various contract drawings, one of which contained boring logs showing the results that had been obtained through borings which had been conducted at various pier locations in advance of the invitation for bids under the supervision of the architect-engineer firm retained by defendant to design the bridge and supervise construction. The boring drawings and material descriptions thereon were prepared by the architect-engineer firm. Defendant’s resident engineer on the project was an employee of this firm. 7. Boring 1-NE on the contract drawings was located approximately 5 feet east of the location prescribed for Pier 1-N, and boring 1-NW was located approximately 5 feet west of such pier, both of said borings being on the center-line of the proposed" }, { "docid": "3697898", "title": "", "text": "the lease, with the understanding that insurance proceeds might be applied to the repair costs but that any insufficiency would remain the responsibility of the lessee. The lease agreement further provided that during the period of repairs the rental payments would be abated. During the time required for repairs a total of $8,400 of rentals accrued but were not paid. It is this sum for which judgment was granted. Appellant insists that because appellee had contracted for the abatement of the rent during repairs, it does not now have a sufficient, protected property interest, citing Robins, supra. This contention does not survive careful analysis. In Robins a time-charterer of a vessel sued the owner of a dry dock whose employees had negligently damaged the vessel, seeking recovery for damages suffered as a consequence of the unavailability of the vessel on the charter date. In an opinion penned by Justice Holmes the Supreme Court held that “as a general rule, . a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong.” 275 U.S. at 309, 48 S.Ct. at 135, 72 L.Ed. at 292. We have had occasion to follow and apply the rule enunciated in Robins, including instances in the immediate past. In Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir. 1978), we denied recovery to a tugboat operator for damages he claimed resulted from the defendants’ negligence in building and operating a lock on a river. In Louisville and Nashville R. R. Co. v. M/V Bayou Lacombe, 597 F.2d 469 (5th Cir. 1979), we denied recovery to a railroad for damages resulting from interference with its use of a bridge which the railroad had a contractual right to use. The employees of the defendant had negligently damaged the bridge. The critical factor in the application of the Robins holding in each of these cases was “the character of the interest harmed.” We have been, in such instances, “reluctant" }, { "docid": "23685651", "title": "", "text": "by the plaintiff on April 24, 1957, and completed by February 18,1958. 3. The work was completed for all practical purposes on October 20, 1958. It was accepted on behalf of the defendant at that time although some inspection work and a few odd jobs remained to. be done. Plaintiff had completed these last few chores by November 12, 1958. 4. The plaintiff sues for breach of contract by reason of delays to the job, which it says were caused by the defendant’s delays resulting from errors in the specifications which it says prevented the earlier completion of the work. By its second cause of action, it seeks damages in the alternative, claiming that the changes in the work were so numerous and extensive that they constituted “a fundamental or cardinal change * * *” which was unjustified and constituted a breach of the contract. 5. The work called for by contract NBy-3506 consisted of the installation of approximately 10,000 feet of 16-inch steel pipe from a point just north of Gate No. 3, along Taus-sig Boulevard, crossing under Taussig Boulevard and the Virginia Railroad Bridge in an existing flume, along the edge of a swampy area parallel to the flume, to and under the belt line railroad bridge, along the edge of a dump area and swampy area, into the South Annex area, and to the steam plant at the South Annex, where the 16-inch line was to be connected into a 12-inch line. This pipe was in the main supported by concrete supports for practically the entire distance, which required the driving of much underground piling as a foundation. There were some seven manholes, with the necessary connections, located at various points along the line. 6. The contract price was $445,000. This figure was arrived at as a result of competitive bidding, the plaintiff being the low bidder. The next highest bid was $448,000, and the high bid was $464,497. 7. The general provisions of the contract stated, in part, as follows: 2. SPECIFICATIONS AND DRAWINGS The Contractor shall keep on the work a copy of the drawings" }, { "docid": "6580636", "title": "", "text": "application of well-settled principles of contract law. It is elementary that a party injured by a breach is entitled to recover damages that are the “natural and probable consequence of the breach.” Bi-Econ. Mkt, Inc. v. Harleysville Ins. Co. of N.Y., 10 N.Y.3d 187, 192, 856 N.Y.S.2d 505, 508, 886 N.E.2d 127, 130 (2008) (internal quotation marks and citation omitted). The injured party, however, bears an obligation to make reasonable efforts to mitigate its damages and failure to do so may cause a court to lessen the recovery. See Losei Realty Corp. v. City of N.Y., 254 N.Y. 41, 47, 171 N.E. 899, 902 (1930). Nonetheless, as the district court correctly reasoned, it is not required that the injured party actually mitigate its damages. Rather, “if plaintiff takes such [mitigating] action within the range of reason,” the breaching party remains liable if such reasonable attempts at mitigation fail. Ellerman Lines, Ltd. v. The Steamship President Harding, 288 F.2d 288, 290 (2d Cir.1961). Furthermore, “[t]he standard of what reason requires of the injured party is lower than in other branches of law.” Id. It is on this point that the trial court’s analysis falters. Although it properly noted Ellerman required only that APL’s mitigation efforts be within the “range of reason” to be effective, the court failed to assess the missteps it found in these efforts against the “the range of reason” standard. Specifically, for example, the trial court found unreasonable delay in mitigation resulting from APL’s mistaken understanding of the Customs requirements for a quick sale. Factually, it is beyond challenge that APL was mistaken in its belief that the garlic had to stay on the dock for six months and be abandoned in writing by Blue Water before the cargo could be disposed. It is equally clear that APL’s misapprehension of the Customs rules and regulations delayed resort to a quick sale and prolonged the use of its reefers after the garlic had been abandoned by Blue Water and Akata. But, the fact that APL could have been more effective in its efforts to arrange a quick sale that" }, { "docid": "10354629", "title": "", "text": "the Notice to Mariners Captain Spikes continued to push his non-integrated three-barge tow into the bridge opening vicinity, thereby significantly increasing the already existing hazardous conditions involved in navigating through the bridges. Though Spikes was in the position to take timely evasive action upon learning that the CREOLE STAR was just putting her nose in the bridge, he went against his better judgment and the duty that prudence demanded of mariners when he continued his navigation to a point in the river where he could no longer take action to avoid a collision with the railroad bridge. The CREOLE STAR and the bridge tender were not blameless. By making corroborative misrepresentations of the CREOLE STAR’s position, and by failing to correct these misstatements, these two parties planted an unshakable misimpression in the mind of Captain Spikes. While the Court does conclude that Captain Spikes was substantially at fault for disregarding his duty to take evasive action, notwithstanding his confused state of mind, it must find that the captain had some justification for not believing Captain Dupre’s statement of position on its face. DAMAGES The Court concludes that bids were properly let, and that the plaintiff received a reasonable bid price for the reconstruction of the damaged pilings caused by the impact from the CAPTAIN VICK. Furthermore, as evidenced by the plans submitted by Southern Pacific Railroad Company in September of 1971 for the repair of the northwest dolphin, the Coast Guard was fully apprised of the proposed construction of pipe pilings around this dolphin and gave its approval. Thus, the fender system of the railroad bridge was properly constructed and maintained as of July 14,1974. The total cost of repairs of the piling damage on the northwest and southeast dolphins caused by the CAPTAIN VICK’s tow, amounts to $73,756.00. This Court follows the rule that in admiralty collision cases, prejudgment interest should be allowed as a matter of course, except where peculiar circumstances warrant an award only from the date of judgment. Mobil Oil Corp. v. Tug Pensacola, 472 F.2d 1175 (5th Cir. 1973). The Court’s conclusion that the plaintiff" }, { "docid": "10354607", "title": "", "text": "captain finally succeeded in halting the tow, after some fifteen to twenty minutes of reversing the engines, the bow barge was resting near the new Highway 90 bridge and the tug, CAPTAIN VICK, was near some moored boats tied on the Berwick side. During this same period, the CREOLE STAR had navigated up the Morgan City side of the river and cleared all three bridge openings. 20. Once Captain Spikes felt that the CAPTAIN VICK had drifted too dangerously close to the Berwick- side, he decided to make a run at the railroad bridge. The captain then came about full to straighten his tow in the river, passed through the Berwick side span of the new Highway 90 bridge, and approached the railroad bridge from a westerly diagonal. To negotiate through the railroad bridge draw, Captain Spikes attempted to slide off of the northwest dolphin of the bridge’s fender system. The second barge in the tow extended out seven and one-half feet beyond the side of the bow barge, forming a notch or variation. This notch made contact with two vertical pilings surrounding the northwest dolphin, completely dislodging one, and bending the other piling below the water level. At impact, the bow barge broke loose from the remaining tow, and hit the southeast dolphin of the fender system, causing damage to some vertical sheet pilings. 21. Though bids for the repair of the damaged pilings were solicited by Southern Pacific Railroad Company, only Boh Bros. Construction Company entered a bid, and consequently was selected to make the repairs. 22. Under the repair contract and specifications incorporated in that contract, Boh Bros. Construction Company was to furnish all labor, equipment and materials, excepting from the materials pipe pilings as stated in Section 9 of the plans and specifications: 9:01 Material: a) Pipe piles: Shall conform to the requirements of ASTM A252 Grade 2 and will be furnished by the railroad to site designated by contractor for fabrication; 9:04 Payment: Payment will be made at the lump sum price bid, which price shall include furnishing all material, except pipe piles, driving piling," }, { "docid": "15970785", "title": "", "text": "of the two highway bridges involved, as follows: (1) Excess cost of constructing the four main channel piers over and above what would have been the cost had the subsurface conditions encountered been as represented and warranted by the defendant in the specifications, including a reasonable profit of 10 percent thereon, $231,485.24; (2) Excess cost of endeavoring to eliminate or reduce sand-streaking in the concrete, including a reasonable profit of 10 percent, $55,785.02; (3) Cost of removing certain power lines, pursuant to orders of the defendant’s officers, $1,272; (4) Cost of maintenance and operation of three complete concrete units for a period of 89 days covering the period during which the construction of the four main channel piers was delayed because of subsurface conditions, including a reasonable profit of 10 percent thereon, $79,018.02; and (5) The amount retained by the defendant as liquidated damages, $1,000; or a total of $368,560.28. The first item of the claim is one in which plaintiff has no personal interest but is prosecuted by it solely for the benefit of its subcontractor, the Blakeslee-Bollins Corpora tion. That corporation prior to the submission of bids in this case and the acceptance of plaintiff’s bid by the defendant, had examined the site of the work, the plans and specifications, the boring maps and data, and had submitted a bid for the work of constructing the substructures of the two bridges to one of the unsuccessful bidders for the entire job. When the plaintiff was awarded the contract it took over the bid submitted to the unsuccessful bidder by the Blakeslee-Rollins Corporation and entered into a contract with that corporation for the construction by it of the substructure of the two bridges for the sum of $260,000. The plaintiff, through its subcontractor, submitted to the defendant’s contracting officer the plan of the cofferdam method that it proposed to follow in the construction of the four main channel piers. The proposed method was approved by the Government’s engineers and its contracting officer. Almost from the beginning of the wrork the subcontractor encountered difficulties in driving the sheeting. Nested and" }, { "docid": "22150125", "title": "", "text": "Me. Justioe Peceham delivered the opinion of the court. This action was brought by the plaintiff in error to recover damages from the defendant corporation, for personal injuries which he alleged he received by reason of the negligence of its agents and servants. The evidence given upon the trial upon the part of the plaintiff tended to show that on or about the 16th day of May, 1890, the defendant was'a railroad corporation doing business in the District of Columbia, and that on the day above mentioned, at the city of Washington in that District, the plaintiff was in the employment of the defendant and had been working at its workshop; that he had finished his work for the day at about a quarter of six in. the evening, and leaving the shop had started for his home. When he reached the intersection of South Capitol Street and Yirginia Avenue he stopped for a moment, and while standing on the pavement on the south side of the railway track, which was in the middle of Yirginia Avenue, a repair train of the defendant corporation passed by him on its return from work for the day. Some of the testimony showed that the train was passing at the rate of twenty miles an hour, while other testimony showed a much less rate of speed. As the train passed the plaintiff one of the workmen on board threw from the car on Avhich he was standing- a stick of bridge timber about six inches square and about six feet long. It struck the ground and rebounded, striking the plaintiff and seriously and permanently injuring him. The defendant had been in the daily habit for several years of running out of Washington and Alexandria a repair train of open flat cars loaded with its em-ployés, and the train returned every evening about six o’clock and brought the workmen back to their homes. These men were allowed the privilege of bringing back with them, for their own individual use for firewood, sticks of refuse timber left over from their work after repairing the road," }, { "docid": "13817473", "title": "", "text": "well as the bayous and marshes in between. The area between the mooring site and allision site is a mixture of navigable water, bayous, marshes, and dry land with some trees. The barges had abided with the bridge while the storm surge was between six and eight feet, displacing the eastbound lanes by four to five feet. The nylon mooring ropes were frayed, although all but one of the mooring bits was intact— the damaged bit had apparently been crushed during the impact with the bridge. Before abiding with the bridge, the barges had drifted approximately 4.7 miles north-northwest of the mooring site. Powered by wind and the surge’s current, the barges were estimated to have covered that distance at a pace of 2.3 knots per hour. At that velocity, it took approximately two hours for the barges to float from the mooring site to the allision site. The exact route that the barges took, however, is unknown. After the storm, MDOT invited contractors to place bids for a contract to perform repairs on the damaged sections of the bridge. T.L. Wallace Construction, Inc. submitted the lowest bid, and MDOT awarded it the contract. T.L. Wallace Construction completed the repairs on September 30, 2005, ahead of schedule. It received a total of $6,268,191, including a $1,000,000 early completion bonus. The federal government reimbursed MDOT for the cost of the repairs in late January 2006. Any recovery in this lawsuit by MDOT wbl accrue to Mississippi’s coffers, to be held in an emergency fund for future emergencies and credited against amounts that the federal government agrees to pay in the event of any such emergencies. After the bench trial, the district court issued its findings of fact and conclusions of law. It held that Signal failed to timely object to MDOT’s status as a real party in interest and thus waived that defense. The court also held that Signal was not exonerated from babibty because the owner of a vessel must overcome a presumption of fault when that vessel abides with a fixed structure and because Signal failed to rebut this" }, { "docid": "18781918", "title": "", "text": "or improve a highway are not answerable for consequential damages, if they act within their jurisdiction and with care and skill, is a doctrine almost universally accepted alike in England and in this country. “ * * * acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not. entitle the owner of such property to compensation from the State or its agents, or give him any right of action.” > Lund v. St. Paul, Minneapolis & Manitoba R. Co., 31 Wash. 286, 71 P. 1032, 61 L.R.A. 506, dealt with the construction of a railroad bridge and a change in the grade of a street in the city of Spokane. In the prosecution of the work, it became necessary to close a street, thereby partially interfering with access to a nearby hotel conducted by the plaintiff and adversely affecting his business. It was claimed by him that by the exercise of reasonable and proper diligence the bridge could have been built within three months instead of the year’s time which the project actually consumed. The court held that there was no evidence tending to show any unreasonable delay on the part of the defendant, but that, on the contrary, the work was forwarded with dispatch. It appeared that the time of construction had been prolonged by the delay on the part of a manufacturer in delivering the structural steel required for use in the bridge. The court concluded that there was no liability for damages to the property owner. An illuminating case is Farrell v. Rose, 253 N.Y. 73, 170 N.E. 498, 68 A.L.R. 1505, which involved the building of a retaining wall for the purpose of constructing a highway in the city of New York, known as Harlem River Terrace. The plaintiff operated a number of garages adjoining the highway. While the work was in progress, there was interference with access to the plaintiff’s garages. The work consumed" }, { "docid": "16953588", "title": "", "text": "by both parties to be correct, that if Texaco, when it decided to repair the Alabama’s collision damage at once, reasonably and in good faith believed that the vessel was not fit for her normal service without permanent repairs, it was entitled to recover as damages all of the costs of repair, including those which were common both to the collision and to the annual overhaul. Conversely, if it was not reasonable for Texaco to reach such a conclusion, none of the common expenses could be charged to Dalfonn, and Texaco could recover only those costs which were attributed strictly to the repair of the bow. See Pan-American Petroleum & Transport Co. v. United States, 27 F.2d 684 (2 Cir. 1928). See also Ellerman Lines, Limited v. The President Harding, 288 F.2d 288 (2 Cir. 1961); The Pocahontas, 109 F.2d 929 (2 Cir. 1940); Clyde S.S. Co. v. City of New York, 20 F.2d 381 (2 Cir. 1927). This rationale behind the distinction is readily apparent. When the owner of an injured vessel has good reason to believe that the vessel will not be seaworthy without permanent repairs, it is entitled to make such repairs immediately at the cost of the tort-feasor, and “it must be treated as a matter of indifference to the tortfeasor that the owner gets an incidental benefit from the detention.” Clyde S.S. Co. V. City of New York, supra at 381. But an injured party is not entitled to compensation for expenses which could have been avoided if he had taken reasonable steps to minimize damages. See Ellerman Lines, Limited v. The President Harding, supra, 288 F.2d at 289-290; Restatement, Torts § 918; 2 Harper & James, Torts § 25.4 (1956). Texaco, however, has contended, both in the District Court and here, that it was necessary for it to make the permanent repairs ordered by the Coast Guard, before the vessel’s Certificate of Inspection would be returned. If that were so, Texaco’s course of action would be reasonable as a matter of law. The Coast Guard has authority to determine when and under what conditions" }, { "docid": "12870841", "title": "", "text": "MEMORANDUM OPINION GEX, District Judge. This matter is before the Court on Defendant’s Motion for Summary Judgment. The Court has reviewed the exhibits and affidavits submitted by the respective parties in support of and in opposition to the instant Motion and, for the reasons stated below, concludes that the Motion should be denied. I. FINDINGS OF FACT On March 11, 1985, the “M/V Lenward Stephens” with tow, owned by the Defendant, Inland Tugs (a subsidiary of American Commercial Barge Line) entered the Gulf-port, Mississippi, Harbor and, while attempting to dock at the Mississippi State Port Authority (“Port”) facility, struck and damaged the west pier wharf. A damage survey was conducted the following day and a repair estimate was submitted to the Port by its engineering consulting firm, Simpkins & Costelli, Inc., in the amount of $29,086.00. Upon receipt of the estimate, Inland Tugs, by letter dated May 8, 1985, informed the Port that “[i]t ... appears Mississippi State Port of Authority is not attempting to fulfill their obligation to minimize their alleged losses as a result of this incident” and suggested that the Port obtain competitive bids for the repair work. Defendant further indicated that “[o]nce the damage has been repaired and we have received your claim which demonstrates complete mitigation of losses we will be in a position to further review this matter”. Thereafter the Port advertised for bids for the repair work and received two bids. The low bid was submitted by George Hopkins, Inc., in the amount of $37,945.00 (plus any necessary charges for splicing of piling). Upon submission to Inland Tugs of both repair bids and the original repair estimate, Inland Tugs advised the Port by letter dated August 8, 1985, that it felt both the repair bids and the original repair estimate were excessive. Defendant did, however, offer to pay the Port $21,000.00 “in full and final settlement” for the repair of the dock. The Port rejected the offer by letter dated August 15, 1985. After being advised that the Port had retained counsel to handle the subject damage claim, Inland Tugs, by letter dated" }, { "docid": "17144966", "title": "", "text": "deliberately stepped from the lighted corridor into a darkened stairway, when, if she had used her eyes, she would have seen the stairway and avoided the accident.” In the Baldwin Case, a superintendent in charge of repairing the Missouri River railway bridge of the Union Pacific Railroad Company was overtaken and knocked, off the track by a locomotive which came up behind him. In the course of the opinion it is said: “Between the point where these two men parted and the place where he was overtaken there were at least three extended floor beams where he could have stepped out to the railing and have waited safely until both trains had passed. The bridge and the railroad tracks upon it in such frequent use were constant warnings of the danger of coming trains. It was his duty to exercise ordinary care to protect himself from them, and the exercise of that care required him to be so alert and watchful for his own welfare that trains, coming in plain view for the distance of a mile, which he could escape by looking behind him- and by moving with reasonable celerity from their track, should not strike him upon it.” It is observed that in the last-mentioned case Baldwin was working in a place, of threatened dangers, of which he was aware. With this knowledge, it was his duty to be alert and watchful for his own welfare. In the De Honey Case, plaintiff passed from the corridors and stairway provided for use of guests into an unknown, ' unused, dark stairway, with which she had no acquaintance and which she had not theretofore used. In the instant case, however, plaintiff entered the half-open door into the washroom intended for his use, and which he had theretofore been using with safety for some six months prior to the accident. He did not know that there was a manhole in the room, and there was nothing to put him on guard. It was not possible to see the open manhole until the door was swung into the room a considerable distance," }, { "docid": "22588890", "title": "", "text": "La. 138, 38 So. 943. In that case, the defendant had negligently damaged a railroad bridge spanning the Atchafalaya River. The barges could pass under the repair framework, but the steamboat could not. The plaintiff was forced to employ an extra steamboat to transport the sugar cane from the sugar fields below the bridge to the refinery above the bridge. Id., 38 So. at 944. The Court held: “The negligent breaking of the bridge was the primary, paramount cause, which lead to the obstruction of navigation as well as the work of reparation; and if, as argued, such work was the immediate cause of the injury, it was simply an intervening cause set in motion by the party originally in fault. It may be said that the remedy was worse than the disease. “We therefore are of opinion that defendants are responsible in damages caused by the obstruction of navigation.” Id. at 945. The Louisiana Supreme Court awarded damages for the extra transportation costs incurred, but refused to award delay damages because of the uncertainty of the evidence; the plaintiff would have been entitled to such damages had he been able to prove them. The closest federal case in point is probably Burgess v. M/V Tamano, D.Me.1973, 370 F.Supp. 247, aff'd, 1 Cir. 1977, 559 F.2d 1200. There, the court denied the plaintiffs motion to dismiss the claims of fishermen and clam diggers seeking damages as a result of an oil spill in a Maine bay. The court decided the motion for dismissal on the basis of public nuisance, holding that the commercial fishermen and clam diggers had suffered “particular damage different in kind, rather than degree, from that asserted by the general public”. The court denied recovery to businessmen in Old Orchard Beach because their damage was “derivative from that of the public at large, is common to all businesses and residents of the Old Orchard Beach area”. Id. at 251. The line of demarcation provided by the Burgess court under an analysis of public nuisance and the line suggested in this dissent are similar. Those who incur a" }, { "docid": "14662128", "title": "", "text": "damages to plaintiff. 2. None of Defendants’ Defenses Apply To Bar Plaintiff’s Recovery for Breach of Contract Defendants assert three defenses: (i) Towers failed to mitigate damages; (2) Towers elected to affirm the contract; and (3) Towers rejected the agreements when its bankruptcy was confirmed. a. Failure To Mitigate Defendants argue that plaintiff is prevented from recovering any damages because Towers could have mitigated its damages by (1) accepting Hunt Health’s offer to buy back its accounts receivable; (2) collecting Hunt Health’s accounts receivable; or (3) continuing to pick up checks from Hunt Health. Under New York law, an injured party cannot recover damages for a loss that it could have avoided by reasonable efforts. Wilmot v. State, 344 N.Y.S.2d 350, 352-53, 297 N.E.2d 90, 32 N.Y.2d 164 (1973). The non-injured party bears “the burden of introducing evidence to prove that plaintiff[] could have lessened [its] damages.” Air Et Chaleur, S.A. v. Janeway, 757 F.2d 489, 494 (2d Cir.1985). Specifically, defendant must show not that plaintiff failed to accept a reasonable offer that would mitigate its losses, but that plaintiff “unreasonably failed to mitigate” its damages. Coastal Power Int’l v. Transcontinental Capital Corp., 10 F.Supp.2d 345, 370 (S.D.N.Y.1998). In other words, “if the plaintiff takes such action within the range of reason, the defendant is liable for further damages resulting therefrom.” Ellerman Lines Ltd. v. The Steamship President Harding, 288 F.2d 288, 290 (2d Cir.1961) (Friendly, J.). None of the grounds set forth by defendants demonstrate that plaintiff failed to mitigate damages. The first and most compelling ground offered by defendants is that Towers’ rejection of Hunt Health’s offer to buy back accounts constitutes a failure to mitigate damages. The evidence shows that Hunt Health’s lawyer and C.F.O. made an earnest attempt to pay back the entire amount of outstanding advances made by Towers to Hunt Health, in exchange for Towers’ release of its lien on Hunt Health’s accounts receivable. Although Hunt Health’s initial offer of $877,266 fell short of the amount of advances outstanding by $33,000 (plus three days of factoring fees), Hunt Health sought to pay the entire" }, { "docid": "14660871", "title": "", "text": "54 Cal.App.2d 549, 129 P.2d 435 (1942); see also Henderson v. United States, 328 F.2d 502, 504 (5th Cir. 1964); Evans v. S. J. Groves & Sons Co., 315 F.2d 335, 347-349 (2d Cir. 1963); 25 C.J.S. Damages § 21, at pp. 658-661. A plaintiff must exercise reasonable care and diligence to minimize or lessen his damages, and to the extent that his damages are the result of his active and unreasonable enhancement thereof, or due to his failure to exercise such care, he cannot recover. He must do nothing to aggravate his loss. Commodity Credit Corp. v. Rosenberg Bros. & Co., 243 F.2d 504, 511 (9th Cir. 1957); Lewis v. Pennsylvania R. R., 100 F.Supp. 291, 294 (E.D.Pa. 1951). The defendant is not liable for “avoidable consequences.” Ellerman Lines Ltd. v. The President Harding, 288 F.2d 288, 289-290 (2d Cir. 1961); Restatement, Torts § 918 (1939).; 2 Harper & James, Law of Torts § 25.4 (1956). 19. At the time of plaintiff’s initial admission to the hospital on August 7» 1962, he had considerable pain in his feet and legs. Later his hands became involved. During the forepart of his hospitalization considerable amounts of drugs were administered to plaintiff for the purpose of relieving pain. Plaintiff improved to the extent that he was granted short leaves commencing October 12, 1962. On December 12, 1962, plaintiff was sent home on leave to return in one month and thereafter until his discharge in April he was seen on monthly intervals. Following his discharge in April, plain tiff continued to experience some numbness in his hands and feet; his gait and balance was not good. He drove a car at first with some difficulty and helped around the house and in the garden. Plaintiff received no further medical attention of any consequence. The only medical expense, including drugs, for which plaintiff asks recovery is the bill from the Veterans Administration Hospital covering the period up to his discharge (exhibit 9). The parties stipulated that the charges thereon were fair and reasonable. No basis for an allowance of future medical expense has been" }, { "docid": "14660870", "title": "", "text": "peripheral neuritis prior to July 20, 1962. It had not, however, reached an acute stage. It was not of sufficient severity to be disabling. On July 20, 1962, plaintiff was exposed to toxic substances contained in the weed spray to the extent that his condition of peripheral neuritis was aggravated and plaintiff was thereby caused to suffer an acute and disabling peripheral neuritis, which required hospitalization and treatment over an extended period of time. The defendant’s negligence was a proximate cause of plaintiff’s condition of ill being that existed after July 20, 1962. CONTRIBUTORY NEGLIGENCE 17. The Court finds that plaintiff was not guilty of contributory negligence. DAMAGES 18. An injured party is entitled to recover such damages as will reasonably compensate him for the injury and damage sustained as a proximate result of the negligence of others. This includes damages for aggravation of a pre-existing condition. He is not, however, entitled to recover for damages which would have resulted from his previous condition without the aggravation. Matthews v. Atchison, T. & S. F. Ry., 54 Cal.App.2d 549, 129 P.2d 435 (1942); see also Henderson v. United States, 328 F.2d 502, 504 (5th Cir. 1964); Evans v. S. J. Groves & Sons Co., 315 F.2d 335, 347-349 (2d Cir. 1963); 25 C.J.S. Damages § 21, at pp. 658-661. A plaintiff must exercise reasonable care and diligence to minimize or lessen his damages, and to the extent that his damages are the result of his active and unreasonable enhancement thereof, or due to his failure to exercise such care, he cannot recover. He must do nothing to aggravate his loss. Commodity Credit Corp. v. Rosenberg Bros. & Co., 243 F.2d 504, 511 (9th Cir. 1957); Lewis v. Pennsylvania R. R., 100 F.Supp. 291, 294 (E.D.Pa. 1951). The defendant is not liable for “avoidable consequences.” Ellerman Lines Ltd. v. The President Harding, 288 F.2d 288, 289-290 (2d Cir. 1961); Restatement, Torts § 918 (1939).; 2 Harper & James, Law of Torts § 25.4 (1956). 19. At the time of plaintiff’s initial admission to the hospital on August 7» 1962, he had considerable" } ]

[ { "docid": "10546904", "title": "", "text": "estoppel from arbitration in subsequent federal court litigation, though the Court required consideration of the “federal interests warranting protection.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 223, 105 S.Ct. 1238, 1244, 84 L.Ed.2d 158 (1985). In an arbitrable case not directly involving federal statutory or constitutional rights, courts should use a case-by-case approach to determining the collateral estoppel effects of arbitral findings. See Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1361 (11th Cir.1985) (courts should consider, inter alia, the procedural adequacy of the arbitration proceeding). It is true that arbitral findings typically lack the supervisory scrutiny of authoritative review, giving rise to the argument that arbitration risks determinations based on irrelevant or hearsay evidence, or the personal whims of arbitral panel members. Hulbert, Arbitral Procedure and the Pre-clusive Effect of Awards in International Commercial Arbitration, 7 Int’l Tax & Bus.Law. 156,195 (1989) [hereinafter “Hul-bert”]. However, arbitration is a widely-used means of resolving maritime disputes. See SCAC Transport, 845 F.2d at 1163 (citing Feinberg, Maritime Arbitration and the Federal Courts, 5 Fordham Int’l L.J. 245 (1982); G. Gilmore & C. Black, The Law of Admiralty 196 (2d ed. 1975)) (arbitration is “especially important” and has largely supplanted litigation in maritime dispute resolution). And we assume that rational actors fearing future disagreement would not contract for a biased forum to settle their differences. See Shell, Res Ju-dicata and Collateral Estoppel Effects of Commercial Arbitration, 35 U. C.L.A.L.Rev. 623, 663-64 (1988) [hereinafter “Shell”]. The application of collateral estop-pel from arbitral findings is a matter within the broad discretion of the district court, Parklane Hosiery, 439 U.S. at 331, 99 S.Ct. at 651; Lewisville Properties, 849 F.2d at 949; Hauser v. Krupp Steel Producers, Inc., 761 F.2d 204, 207 (5th Cir.1985), and a district court’s discretion in deciding whether to give arbitral findings preclusive effect also keeps the risk of prejudice at an acceptable level, at least when the arbitral pleadings state issues clearly, and the arbitrators set out and explain their findings in a detailed written memorandum. Cf. Shell, supra, at 649 (ambiguity of pleadings may require relitigation); Hulbert," } ]

[ { "docid": "16312776", "title": "", "text": "board either orally or on paper could have been cross-examined by the adversarial parties, if the parties had chosen. Contrary to another of the shortcomings catalogued in Coppinger, the arbitration decision at issue here was presented in a reasoned, detailed opinion. See SCAC Transport, 845 F.2d at 1163. Finally — and we address this in much greater detail later, if we were to carry to its full extent the admonition in Coppinger that arbitration proceedings do not carry a right to a jury trial, we would find ourselves in conflict with the Supreme Court’s Parklane decision which held that a jury trial in a prior proceeding is not a prerequisite to granting the prior proceeding pre-clusive effect over a subsequent proceeding to which a jury trial right attaches. 439 U.S. at 333-35, 99 S.Ct. at 652-54. In Coppinger we took our cue from the Supreme Court which, on account of the procedures used in arbitration, has been reluctant to grant arbitration findings preclusive effect over certain federal statutory and constitutional rights. See, e.g., McDonald v. West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984) (arbitration decision does not have preclusive effect over a § 1983 claim); Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (arbitration decision does not have preclusive effect over a Title VII claim). Despite its hesitancy, the Supreme Court expressly has not foreclosed federal courts from granting preclu-sive effect to arbitration decisions. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 223, 105 S.Ct. 1238, 1243, 84 L.Ed.2d 158 (1985). In making our determination we are to “take into account the federal interests warranting protection.” Id. The Eleventh Circuit has considered those federal interests and has held that arbitration findings may be given collateral estoppel effect over issues in a RICO claim. Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352 (11th Cir.1985). In Greenblatt, contrary to the case at bar, the report of the arbitration board contained no specific factual findings. See id. at 1361. Despite this absence, the court inferred from the arbitration decision factual findings" }, { "docid": "6348812", "title": "", "text": "inexperience and limited authority of the arbitrator — McDonald was premised on an analysis of the adequacy of arbitration to protect the specific constitutional and statutory rights of § 1983. Its holding, although not its analysis, has been construed as limited to § 1983 cases. See Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 308 n. 21, 106 S.Ct. 1066, 1077 n. 21, 89 L.Ed.2d 232 (1986) (citing McDonald for the limited proposition that the “arbitrator’s decision would not receive preclusive effect in any subsequent § 1983 action”); Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. at 222, 105 S.Ct. at 1243 (stating that McDonald held that “neither the full-faith-and-credit provision of 28 U.S.C. § 1738, nor a judicially fashioned rule of preclusion, permits a federal court to accord res judicata or collateral estoppel effect to an unappealed arbitration award in a case brought under 42 U.S.C. § 1988”) (emphasis added); Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1361 (11th Cir.1985) (interpreting Byrd and McDonald to require a case-by-case approach when determining whether arbitration of a federal claim should be given preclusive effect). Because it involves RICO, the present case is distinguishable from McDonald. Plaintiffs have not persuasively argued that giving the arbitration preclusive effect as to the acts underlying the RICO claim will undermine the purposes of RICO or the rights it is designed to protect, particularly in view of the Supreme Court’s recent holding that RICO claims may be arbitrated. See Shearson/American Express Inc. v. McMahon, — U.S.-, 107 S.Ct. 2332, 2343-46, 96 L.Ed.2d 185 (1987). Additionally, the plaintiffs’ defenses and counterclaims in arbitration alleged misconduct on the part of Paine Webber and its employees in their hiring, employment, and discharge —matters well within the scope of arbitration and the expertise of the arbitrators. As stated in Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d at 1361, it is not “improper to grant collateral estoppel effect to an arbitration panel’s factual findings regarding these underlying acts [for a RICO claim], particularly if such findings are within the panel's authority and expertise.” Accordingly, I" }, { "docid": "16312777", "title": "", "text": "West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984) (arbitration decision does not have preclusive effect over a § 1983 claim); Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (arbitration decision does not have preclusive effect over a Title VII claim). Despite its hesitancy, the Supreme Court expressly has not foreclosed federal courts from granting preclu-sive effect to arbitration decisions. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 223, 105 S.Ct. 1238, 1243, 84 L.Ed.2d 158 (1985). In making our determination we are to “take into account the federal interests warranting protection.” Id. The Eleventh Circuit has considered those federal interests and has held that arbitration findings may be given collateral estoppel effect over issues in a RICO claim. Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352 (11th Cir.1985). In Greenblatt, contrary to the case at bar, the report of the arbitration board contained no specific factual findings. See id. at 1361. Despite this absence, the court inferred from the arbitration decision factual findings upon which decision must have been predicated. With these inferences made, the court did not “think it improper to grant collateral estoppel effect to an arbitration panel’s factual findings regarding [the] underlying acts” upon which the RICO claim was based, provided the arbitrators’ findings were within their authority and expertise. Id. We feel a similar conclusion is appropriate in the case at bar. As noted, underlying each of Counts II through IV is the contention that plaintiffs were rate bureau employees. Since there is no question regarding the arbitrators’ authority and since none has been raised regarding their expertise, we likewise do not think it improper to grant collateral estoppel effect to the arbitrators’ factual finding on an issue which underlies Counts II through IV. While we reembrace the holding of the Coppinger case, we do not believe that the result reached there should govern every case where a court is asked to grant preclu-sive effect to an arbitration decision. To permit the Coppinger result to dictate the result today would require us to overlook" }, { "docid": "23515080", "title": "", "text": "the arbitration findings do not prevent him from pursuing his RICO claim. Nevertheless, we affirm the grant of summary judgment, because the record indicates that appellant cannot prove any of the predicate acts necessary to maintain his RICO action. 1. Intertwining doctrine. The margin agreement signed by Greenblatt provided that any controversy arising under the contract would be settled by arbitration. However, this court has applied the “doctrine of intertwining” in cases involving federal securities claims. That doctrine provides that “when it is impractical if not impossible to separate out non-arbitrable federal securities law claims from arbitrable contract claims, a court should deny arbitration in order to preserve its exclusive jurisdiction over the federal securities act claims.” Sibley v. Tandy Corp., 543 F.2d 540, 543 (5th Cir.1976), cert. denied, 434 U.S. 824, 98 S.Ct. 71, 54 L.Ed.2d 82 (1977). Appellant argues that this doctrine should also preclude arbitration of arbitrable contract claims which are intertwined with a RICO claim. This issue has been rendered moot, since the intertwining doctrine was' recently considered and rejected by the Supreme Court in Dean Witter Reynolds, Inc. v. Byrd, — U.S.-, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985). Byrd held that when a complaint raises both federal securities claims and pendent state claims, the Arbitration Act, 9 U.S.C. § 1 et seq., “requires district courts to compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums.” Id., 105 S.Ct. at 1241. In view of the Supreme Court’s holding, the district court properly required the arbitrable state law contract claims to go to arbitration in the present case. 2. Collateral estoppel. There are several prerequisites to the application of collateral estoppel: (1) the issue at stake must be identical to the one alleged in the prior litigation; (2) the issue must have been actually litigated in the prior litigation; and (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in that" }, { "docid": "10546906", "title": "", "text": "supra, at 197 (absence of written findings and reasons makes preclusion impossible unless necessarily implied from the nature of the claim and award). B. Fairness of Arbitral Procedures The fumigators raise no charge of bias or improper use of evidence by the arbitrators. The examination that occurred during the qualification of this arbitral panel establishes that the arbitrators were experienced and disinterested individuals. But the fumigators urge that arbitration would have failed to afford them a full and fair opportunity to present their case. They say that the limitations on pretrial discovery and their inability to call witnesses of their choosing, to conduct cross-examination, and to challenge the admissibility of evidence prejudiced them. See Hulbert, supra, at 193-95 (analysis of preclusive effect depends upon the significance attached to procedural differences between arbitration and court adjudication); Restatement (Second) of Judgments, § 57 & cmt. c (1982) [hereinafter “section 57”] (arbitral award should have the same preclusive effect as a judgment if arbitration afforded [procedural] opportunity ... substantially similar in form and scope to court adjudication). If the first determination of an issue occurred in an arbitration which afforded litigants the “basic elements of adjudicatory procedure,” a district court may find in a proper case that the arbitral award collaterally estops relitigation of the previously determined issues. Greenblatt, 763 F.2d at 1360. A district court in exercising its discretion must carefully consider whether procedural differences between arbitration and the district court proceeding might prejudice the party challenging the use of offensive collateral estoppel. The district court specifically must determine whether procedural opportuni ties available to the party in the subsequent action “might be likely to cause a different result.” Parklane, 439 U.S. at 332, 99 S.Ct. at 652. But a party who chooses not to appear in a proceeding despite having notice and an opportunity to be heard, and who later challenges the preclusive effect of determinations made in the proceeding, must make a particularized showing of harm to establish the prejudicial effect of procedural differences. See SC AC Transport, 845 F.2d at 1163 (opponent of collateral estoppel has burden to demonstrate" }, { "docid": "23513650", "title": "", "text": "suit is “brought upon” an arbitrable issue, 9 U.S.C. § 3, though the cases, perhaps concerned lest the tail wag the dog, treat the question whether to stay the entire case as discretionary in eases involving both arbitrable and nonarbitrable issues. American Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 96-97 (4th Cir.1996); McCarthy v. Azure, 22 F.3d 351, 361 (1st Cir.1994); Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 856 (2d Cir.1987); 2 Macneil, Speidel & Stipanowich, supra, § 23.3.1, pp. 23:12-:13. This interpretation was assumed in Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 218-19 and n. 5, 105 S.Ct. 1238, 1241-42 n. 5, 84 L.Ed.2d 158 (1985), though in the context of issues nonarbitrable as a matter of law, as distinct from those the parties may just not have agreed to arbitrate. The defendants concede that to the extent that the rights conferred by the collective bargaining agreements, or the sanctions available to the arbitrators, fall short of fully vindicating the plaintiffs’ substantive and remedial statutory rights, the plaintiffs will be free to resume their suits after the arbitrators render their awards, having filed the suits within the statute of limitations. But the findings made' by the arbitrators might be entitled to collateral estoppel effect in the resumed suits. Benjamin v. Traffic Executive Ass’n Eastern Railroads, 869 F.2d 107, 110 (2d Cir.1989). We say “might” to emphasize the readiness of courts to deny that effect to arbitral awards when the arbitrator has failed to explain his findings adequately or to follow procedures likely to lead to reliable findings — “adequacy” and “reliability” being relative to the importance of the claim that the arbitrator’s findings are sought to be used to block. Dean Witter Reynolds Inc. v. Byrd, supra, 470 U.S. at 222-23, 105 S.Ct. at 1243-44; McDonald v. City of West Branch, 466 U.S. 284, 289, 104 S.Ct. 1799, 1802-03, 80 L.Ed.2d 302 (1984); Kulavic v. Chicago & Illinois Midland Ry., 1 F.3d 507, 513-15 (7th Cir.1993); Universal American Barge Corp. v. J-Chem, Inc., 946 F.2d 1131, 1137 (5th Cir.1991). The honey-tongued" }, { "docid": "18499798", "title": "", "text": "file together with the affidavits show that there is no genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Fed.R.Bankr.P. 7056. “In determining whether any genuine issues of material fact exist, the record must be construed liberally in favor of the party opposing the summary judgment.” McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir.1988) (citations omitted). Plaintiffs are asserting in their motion for summary judgment that the question of whether debtor perpetrated actual fraud on plaintiffs, determined in accordance with the standards of the United States Bankruptcy Code, was actually litigated before the arbitration panel and necessary to its award, that there is no genuine question of fact, and that plaintiffs are therefore entitled to summary judgment as a matter of law. Plaintiffs’ motion is based on their claim under § 523(a)(2)(A) and does not assert that summary judgment is appropriate with regard to their claim under § 523(a)(4). The Court must therefore determine whether the doctrine of collateral estoppel applies in the present case, and if so, whether any issues are precluded from relitigation. Debtor argues that although the Supreme Court has not considered whether an arbitration award is entitled to collateral estoppel effect in non-dischargeability proceedings, the Supreme Court has refused to permit arbitration awards to preclude a party’s ability to protect important federal interests in cases brought under different federal statutes. Debtor then cites McDonald v. West Branch, Michigan, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984), and Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985). In McDonald v. West Branch, Michigan, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984), the Supreme Court addressed the issue of whether an arbitration decision dismissing a policeman’s claim had collateral estoppel effect under 28 U.S.C. § 1738 in a subsequent case brought by the policeman under 42 U.S.C. § 1983. The Supreme Court first addressed the issue of whether federal courts are obliged by statute to accord res judicata or collateral estoppel effect to" }, { "docid": "7122886", "title": "", "text": "or refusal of any party to honor an agreement to arbitrate.’ ” Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 844 (2d Cir.1987) (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 511, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974) (quoting 9 U.S.C. § 4)) (internal quotation marks omitted). The FAA “leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” WorldCrisa, 129 F.3d at 74 (quoting Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) (emphasis in original)) (internal quotation marks omitted). “In deciding whether to stay the proceedings and compel arbitration, this court must determine: (1) whether the parties agreed to arbitrate; (2) the scope of the parties’ arbitration agreement; and (3) whether Congress intended any federal statutory claims to be nonarbitrable.” Chamois v. Countrywide Home Loans, No. 02 Civ. 9550(MBM), No. 02 Civ. 9553(MBM), 2003 WL 23022033, at *2 (S.D.N.Y. Dec.29, 2003) (citing Genesco, 815 F.2d at 844). Although the FAA embodies a “strong presumption in favor of arbitration,” Thyssen, Inc. v. Calypso Shipping Corp., S.A., 310 F.3d 102, 104 (2d Cir.2002) (quoting Coca-Cola Bottling Co. v. Soft Drink & Brewery Workers Union Local 812, 242 F.3d 52, 57 (2d Cir.2001)), a party is on rare occasions “deemed to have waived its right to arbitration if it ‘engages in protracted litigation that results in prejudice to the opposing party,’ ” S & R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80, 83 (2d Cir.1998) (quoting Cotton v. Slone, 4 F.3d 176, 179 (2d Cir.1993)). If a party seeking to compel arbitration has engaged in “any prior litigation,” the question of waiver is for the court to decide. Id. (quoting Doctor’s Assocs., Inc. v. Distajo, 66 F.3d 438, 456 n. 12 (2d Cir.1995)) (internal quotation marks omitted). “While waiver of arbitration is not to be lightly inferred, the issue is fact-specific and there are no bright-line rules.” Id.; see" }, { "docid": "18499801", "title": "", "text": "went on to determine whether it was appropriate in that case to fashion such a rule. Id. The Court held that because 42 U.S.C. § 1983 creates a cause of action, there is no question that Congress intended it to be judicially enforceable, and arbitration “cannot provide an adequate substitute in protecting the federal statutory and constitutional rights that § 1983 is designed to safeguard.” Id. at 290, 104 S.Ct. at 1803. In Dean Witter Reynolds v. Byrd, 470 U.S. 213, 216, 105 S.Ct. 1238, 1240, 84 L.Ed.2d 158 (1985), the Supreme Court held that the courts could compel the arbitration of a pendent state law claim when the federal court will in any event assert jurisdiction over the federal law claim. In addressing the concern that findings in an arbitration proceeding might have collateral-estoppel effect in a subsequent federal proceeding to resolve securities claims, the Court cited McDonald as an example that courts may directly and effectively protect federal interests by determining the preclu-sive effect to be given to an arbitration proceeding. Id. at 223, 105 S.Ct. at 1243. The Court went on to state that the “question of what preclusive effect, if any, the arbitration proceedings might have is not yet before us, however, and we do not decide it.” Id. The Court noted that in framing preclusion rules in this context, courts shall take into account the federal interests warranting protection. Id. In the present case, the federal interest involved is the interest in providing a debt- or with a discharge of his debts. In Grogan v. Garner, — U.S. -, 111 S.Ct. 654, 658, 112 L.Ed.2d 755 (1991), the Supreme Court clarified that collateral estop-pel principles do indeed apply in discharge exception proceedings pursuant to § 523(a). The Supreme Court in Grogan also stated that “[w]e have previously held that a debt- or has no constitutional or ‘fundamental’ right to a discharge in bankruptcy ... [w]e also do not believe that, in the context of provisions designed to exempt certain claims from discharge, a debtor has an interest in discharge sufficient to require a heightened standard" }, { "docid": "18499800", "title": "", "text": "an arbitrator’s decision. Id. at 287, 104 S.Ct. at 1801. The Court looked at the Federal Full Faith and Credit Statute, 28 U.S.C. § 1738, and found that arbitration decisions are not subject to the mandate of § 1738. Id. The Court quoted § 1738, emphasizing its language: “judicial proceedings [of any court of any State] shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State ... from which they are taken.” Id. at 287-88, 104 S.Ct. at 1801-02 (emphasis in original). The court determined that arbitration is not a “judicial proceeding” and therefore § 1738 does not apply to arbitration awards. Id. at 288, 104 S.Ct. at 1802. However, the Court in McDonald went on to state that “[b]ecause federal courts are not required by statute to give res judicata or collateral-estoppel effect to an unappealed arbitration award, any rule of preclusion would necessarily be judicially fashioned.” Id. The court then went on to determine whether it was appropriate in that case to fashion such a rule. Id. The Court held that because 42 U.S.C. § 1983 creates a cause of action, there is no question that Congress intended it to be judicially enforceable, and arbitration “cannot provide an adequate substitute in protecting the federal statutory and constitutional rights that § 1983 is designed to safeguard.” Id. at 290, 104 S.Ct. at 1803. In Dean Witter Reynolds v. Byrd, 470 U.S. 213, 216, 105 S.Ct. 1238, 1240, 84 L.Ed.2d 158 (1985), the Supreme Court held that the courts could compel the arbitration of a pendent state law claim when the federal court will in any event assert jurisdiction over the federal law claim. In addressing the concern that findings in an arbitration proceeding might have collateral-estoppel effect in a subsequent federal proceeding to resolve securities claims, the Court cited McDonald as an example that courts may directly and effectively protect federal interests by determining the preclu-sive effect to be given to an arbitration proceeding. Id. at" }, { "docid": "16591852", "title": "", "text": "entered by a court in the absence of arbitration. See Lifecare Int’l Inc. v. CD Medical, 68 F.3d 429 (1995), opinion modified and supplemented on other grounds, 85 F.3d 519 (11th Cir.1996); see also Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1360-61 (11th Cir.1985); The Celotex Corp. v. AIU Ins. Co. (In re The Celotex Corp.), 196 B.R. 602 (Bankr.M.D.Fla.1996); accord Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 222-23, 105 S.Ct. 1238, 1241, 1243-44, 84 L.Ed.2d 158 (1985). Moreover, the Eleventh Circuit Court of Appeals has expressed a high regard for arbitral awards as evidenced by the standard that such awards should be vacated only if they are arbitrary and capricious. Lifecare, 68 F.3d at 435; Celotex, 196 B.R. at 607. The actual determination of the pre-clusive effect of factual findings supporting an arbitration award must occur on a case-by-case basis centered on an evaluation of certain criteria designed to protect the federal interest in the federal proceeding. Greenblatt, 763 F.2d at 1360-61. These criteria are as follows: (1) the nature of the federal interests at issue; (2) expertise of the arbitrator and scope of his authority; and (3) procedural adequacy of the arbitration proceeding. See also Byrd, 470 U.S. at 222-23, 105 S.Ct. at 1243-44; Celotex, 196 B.R. at 606-08; accord McDonald v. City of West Branch, 466 U.S. 284, 288-92, 104 S.Ct. 1799, 1802-04, 80 L.Ed.2d 302 (1984). Hence, in accordance with the standard enunciated in Greenblatt, 763 F.2d at 1361, this Court must first decide whether preclusive effect may be considered in connection with the arbitration award and state court judgment in question. Under this line of inquiry, as guided by the GreenMatt test, the Court observes that, in the context of a dispute over the dischargeability of a debt under 11 U.S.C. § 523(a) of the Bankruptcy Code, the federal interest concerned, though significant, does not rise to the level of a constitutional right which could well prohibit applicability of such preclusive effect. Greenblatt, 763 F.2d at 1360; see also Grogan v. Garner, 498 U.S. 279, 284-85, 111 S.Ct. 654, 658-59," }, { "docid": "2525002", "title": "", "text": "Court held that neither “res judicata” nor “collateral estoppel” could apply, 466 U.S. at 292, 104 S.Ct. 1799, it relied on Gardner-Denver and Barrentine and again noted that the arbitral proceedings can have evidentiary weight, id. at 292 n. 13, 104 S.Ct. 1799. In short, there is no reason to believe that McDonald was intended to be a departure from the prior two decisions. It follows that these Supreme Court decisions do not prohibit a court from applying collateral estoppel. BNSF, for its part, also posits the other extreme — that collateral estoppel must apply because the RLA, and specifically 45 U.S.C. § 153, First (m) and (q), makes the findings of the arbitral panel “conclusive on the parties” and its award “final and binding.” We disagree: The RLA makes the arbitral findings conclusive on the parties in the dispute governed by the RLA. Grimes does not disagree that the arbitral findings of fact are conclusive on his CBA claim that he pursued with the PLB. Those findings are not, however, necessarily conclusive in a suit brought under a different statute. III. The answer lies somewhere in the middle. As a general matter, arbitral proceedings can have preclusive effect even in litigation involving federal statutory and constitutional rights, and the decision to apply it is within the discretion of the district court. As acknowledged in Universal American Barge Corp. v. J-Chem, Inc., 946 F.2d 1131, 1136 (5th Cir. 1991), the Court held in Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 223, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), that collateral estoppel may apply in federal-court litigation to facts found in arbitral proceedings as long as the court considers the “federal interests warranting protection.” In Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1358-62 (11th Cir.1985), the court discussed Byrd and concluded that the determination of fact issues in the arbitration of state-law claims should have preclusive effect in a subsequent federal RICO suit where those fact issues determined the existence of predicate acts for purposes of RICO. A district court has “broad discretion” to decide whether to" }, { "docid": "2525004", "title": "", "text": "apply the doctrine, “at least when the arbitral pleadings state issues clearly, and the arbitrators set out and explain their findings in a detailed written opinion.” Universal Am. Barge, 946 F.2d at 1137. Additionally, “[a] district court in exercising its discretion must carefully consider whether procedural differences between arbitration and the district court proceeding might prejudice the party challenging the use of offensive collateral estoppel.” Id. If the procedural differences “might be likely to cause a different result,” then collateral estoppel is inappropriate. Id. at 1138. The arbitrators also ought to be “experienced and disinterested individuals.” Cf. id. at 1137. The decision in Universal American Barge was based largely on Green-blatt. See Universal Am. Barge, 946 F.2d at 1137. Greenblatt provides us with similar guidance and establishes at least two prongs of the inquiry: Collateral estoppel is not improper regarding underlying acts “particularly if such findings are within the panel’s authority and expertise” and where the arbitration procedures “adequately protected the rights of the parties.” Greenblatt, 763 F.2d at 1361. As to the second prong, “[wjhen an arbitration proceeding affords basic elements of adjudicatory procedure, such as an opportunity for presentation of evidence, the determination of issues in an arbitration proceeding should generally be treated as conclusive in subsequent proceedings.... ” Id. at 1360. In the arbitration in Greenblatt specifically, both parties had been represented by counsel, made opening and closing arguments, and were permitted to examine and cross-examine witnesses and to present relevant evidence. Id. at 1361. Therefore, and because the arbitrators were also experts in the matter, the court gave pre-clusive effect to the arbitral findings of fact. Here, on the other hand, the investigation and hearings were conducted by the railroad. The actual arbitrators — the PLB — only reviewed the record from that investigation. Collateral estoppel was inappropriate because the procedures of the PLB did not afford Grimes the basic procedural protections of a judicial forum. The fact that a subsequent panel of neutral arbitrators reviewed the record of the internal investigation and hearing and con- eluded that the railroad had reached the correct result is" }, { "docid": "10546907", "title": "", "text": "the first determination of an issue occurred in an arbitration which afforded litigants the “basic elements of adjudicatory procedure,” a district court may find in a proper case that the arbitral award collaterally estops relitigation of the previously determined issues. Greenblatt, 763 F.2d at 1360. A district court in exercising its discretion must carefully consider whether procedural differences between arbitration and the district court proceeding might prejudice the party challenging the use of offensive collateral estoppel. The district court specifically must determine whether procedural opportuni ties available to the party in the subsequent action “might be likely to cause a different result.” Parklane, 439 U.S. at 332, 99 S.Ct. at 652. But a party who chooses not to appear in a proceeding despite having notice and an opportunity to be heard, and who later challenges the preclusive effect of determinations made in the proceeding, must make a particularized showing of harm to establish the prejudicial effect of procedural differences. See SC AC Transport, 845 F.2d at 1163 (opponent of collateral estoppel has burden to demonstrate specific prejudice from arbi-tral procedures); but see also Carlisle, Getting a Full Bite at the Apple: When Should the Doctrine of Issue Preclusion Make an Administrative or Arbitral Determination Binding in a Court of Law, 55 Fordham L.Rev. 63 (1986) (suggesting burden should rest with the proponent of preclusion). The fumigators argue that some evidence introduced by GASC on liability and damages would have been subject to hearsay objection, and that the fumigators would have cross-examined the witnesses if the proceeding occurred in district court. The fumigators also complain that the parties to the arbitration did not call witnesses favorable to the fumigators’ position. But the fumigators do not point to any specific arbitral procedures that would have prevented their making hearsay objections and calling their own witnesses, had they chosen to appear. Their complaints thus result from their rejection of the vouching notice, not from any identified procedural differences between arbitration and district court. The fumigators also argued in a hearing before the district court that their discovery would have been compromised in arbitration," }, { "docid": "2525003", "title": "", "text": "suit brought under a different statute. III. The answer lies somewhere in the middle. As a general matter, arbitral proceedings can have preclusive effect even in litigation involving federal statutory and constitutional rights, and the decision to apply it is within the discretion of the district court. As acknowledged in Universal American Barge Corp. v. J-Chem, Inc., 946 F.2d 1131, 1136 (5th Cir. 1991), the Court held in Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 223, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), that collateral estoppel may apply in federal-court litigation to facts found in arbitral proceedings as long as the court considers the “federal interests warranting protection.” In Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1358-62 (11th Cir.1985), the court discussed Byrd and concluded that the determination of fact issues in the arbitration of state-law claims should have preclusive effect in a subsequent federal RICO suit where those fact issues determined the existence of predicate acts for purposes of RICO. A district court has “broad discretion” to decide whether to apply the doctrine, “at least when the arbitral pleadings state issues clearly, and the arbitrators set out and explain their findings in a detailed written opinion.” Universal Am. Barge, 946 F.2d at 1137. Additionally, “[a] district court in exercising its discretion must carefully consider whether procedural differences between arbitration and the district court proceeding might prejudice the party challenging the use of offensive collateral estoppel.” Id. If the procedural differences “might be likely to cause a different result,” then collateral estoppel is inappropriate. Id. at 1138. The arbitrators also ought to be “experienced and disinterested individuals.” Cf. id. at 1137. The decision in Universal American Barge was based largely on Green-blatt. See Universal Am. Barge, 946 F.2d at 1137. Greenblatt provides us with similar guidance and establishes at least two prongs of the inquiry: Collateral estoppel is not improper regarding underlying acts “particularly if such findings are within the panel’s authority and expertise” and where the arbitration procedures “adequately protected the rights of the parties.” Greenblatt, 763 F.2d at 1361. As to the second prong," }, { "docid": "22937861", "title": "", "text": "interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994) (citing Mikinberg v. Baltic S.S. Co., 988 F.2d 327, 330 (2d Cir.1993)). Guided by these principles and construing his pleadings generously, we conclude that Boguslavsky’s District Court action was not precluded in toto by the NASD proceeding. I. Collateral Estoppel The doctrine of collateral estoppel precludes a party from relitigating in a subsequent proceeding an issue of law or fact that has already been decided in a prior proceeding. Under federal law, a party is collaterally estopped from relitigating an issue if a four-part test is met: “(1) the identical issue was raised in a previous proceeding; (2) the issue was ‘actually litigated and decided’ in the previous proceeding; (3) the party had a ‘full and fair opportunity’ to litigate the issue; and (4) the resolution of the issue was ‘necessary to support a valid and final judgment on the merits.’” Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 91 (2d Cir.1997) (quoting Central Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 368 (2d Cir.1995)); accord Hirschfeld v. Spanakos, 104 F.3d 16, 19 (2d Cir.1997); Levy, 104 F.3d at 41; Beck v. Levering, 947 F.2d 639, 642 (2d Cir.1991), cert. denied, 504 U.S. 909, 112 S.Ct. 1937, 118 L.Ed.2d 544 (1992). Moreover, collateral es-toppel can be predicated on arbitration proceedings. See Benjamin v. Traffic Executive Ass’n Eastern R.R., 869 F.2d 107, 114 (2d Cir.1989); see also Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 223, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) (acknowledging that courts may protect federal interests by determining the preclusive effect to be given to arbitration proceedings); Jacobson v. Fireman’s Fund Ins. Co., 111 F.3d 261, 267-68 (2d Cir.1997) (holding that unconfirmed New York state arbitral proceeding may have collateral estoppel effect in federal court). A. The 10b-5 and 10b-10 Damages Claims Under this standard, Boguslavsky’s claims under Rules 10b-5 and 10b-10 were properly dismissed by the District Court as barred by collateral estoppel to the extent Boguslavsky sought to relitigate" }, { "docid": "469996", "title": "", "text": "substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that § 1983 is designed to safeguard. We therefore recognized that arbitration proceedings will not necessarily have a preclusive effect on subsequent federal court proceedings— Significantly, McDonald also established that courts may directly and effectively protect federal interest by determining the preclusive effect to be given to an arbitration proceeding____ The Courts of Appeals that have assumed collateral-estoppel effect must be given to arbitration proceedings have therefore sought to accomplish indirectly that which they erroneously assumed they could not do directly [I]n framing preclusion rules in this context, courts shall take into account the federal interests warranting protection____ Byrd, 470 U.S. at 222-23, 105 S.Ct. at 1243-44. What can be gleaned from the Byrd decision is that the Courts must exercise extreme caution in applying rules of preclusion to a previous arbitration award when nonarbitrable federal securities laws claims are involved. In doing so, the Court should focus on “the federal interests in insuring a federal court determination of the federal claim, the expertise of the arbitrator and his scope of authority under the arbitration agreement, and the procedural adequacy of the arbitration proceedings.” Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1361 (11th Cir.1985). In addition to meeting these three criteria, the general prerequisites to the application of collateral estoppel must be met; (1) identity of issues; (2) actual litigation of the issue in the prior litigation proceeding; (3) the determination of the issue in the prior litigation or proceeding must have been a critical and necessary part of the judgment in the earlier proceeding, and (4) the party against whom the earlier decision is asserted must have had a full and fair opportunity to litigate the issue in the early proceedings. Greenblatt, 763 F.2d at 1360. For purposes of res judicata, there must be an identity of causes of action, that is, an identity of the facts creating the right of action and the evidence necessary to sustain each action. Westwood Chemical Co., Inc. v. Kulick, 656 F.2d 1224, 1227 (6th Cir.1981). As outlined" }, { "docid": "6348811", "title": "", "text": "determined in that proceeding. Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979). Although some arbitration proceedings have been given preclusive effect, the Supreme Court has, as plaintiffs emphasize, been unwilling to hold that arbitration proceedings are always entitled to res judicata or collateral estoppel effect. In McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984), and Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), the Court cautioned that, in fashioning preclusion rules for arbitration proceedings, the nature of the federal rights involved and the protection afforded them in an arbitration must be considered. In McDonald, the Court concluded that awarding preclusive effect to an arbitration proceeding in a later § 1983 case would undermine the statute’s goal of protecting federal rights. However, despite language in the opinion emphasizing the inadequacy in certain types of cases of arbitration as a substitute for judicial proceedings — such as its more limited factfinding, and the possible inexperience and limited authority of the arbitrator — McDonald was premised on an analysis of the adequacy of arbitration to protect the specific constitutional and statutory rights of § 1983. Its holding, although not its analysis, has been construed as limited to § 1983 cases. See Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 308 n. 21, 106 S.Ct. 1066, 1077 n. 21, 89 L.Ed.2d 232 (1986) (citing McDonald for the limited proposition that the “arbitrator’s decision would not receive preclusive effect in any subsequent § 1983 action”); Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. at 222, 105 S.Ct. at 1243 (stating that McDonald held that “neither the full-faith-and-credit provision of 28 U.S.C. § 1738, nor a judicially fashioned rule of preclusion, permits a federal court to accord res judicata or collateral estoppel effect to an unappealed arbitration award in a case brought under 42 U.S.C. § 1988”) (emphasis added); Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1361 (11th Cir.1985) (interpreting Byrd and McDonald to require a case-by-case approach" }, { "docid": "23515081", "title": "", "text": "the Supreme Court in Dean Witter Reynolds, Inc. v. Byrd, — U.S.-, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985). Byrd held that when a complaint raises both federal securities claims and pendent state claims, the Arbitration Act, 9 U.S.C. § 1 et seq., “requires district courts to compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums.” Id., 105 S.Ct. at 1241. In view of the Supreme Court’s holding, the district court properly required the arbitrable state law contract claims to go to arbitration in the present case. 2. Collateral estoppel. There are several prerequisites to the application of collateral estoppel: (1) the issue at stake must be identical to the one alleged in the prior litigation; (2) the issue must have been actually litigated in the prior litigation; and (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in that earlier action. DeWeese v. Town of Palm Beach, 688 F.2d 731, 733 (11th Cir.1982). In addition, the party against whom the earlier decision is asserted must have had a full and fair opportunity to litigate the issue in the earlier proceeding. Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1504 (11th Cir.1984). The application of collateral estoppel is committed to the sound discretion of the district court. DeWeese, 688 F.2d at 734. An arbitration decision can have res judicata or collateral estoppel effect, even if the underlying claim involves the federal securities laws. Schattner v. Girard, Inc., 668 F.2d 1366, 1369 (D.C.Cir.1981); Davis v. Chevy Chase Financial Ltd., 667 F.2d 160, 172 (D.C.Cir.1981); see Gardner v. Shearson Hammill & Co., 433 F.2d 367, 368 (5th Cir.1970), cert. denied, 401 U.S. 978, 91 S.Ct. 1209, 28 L.Ed.2d 329 (1971). When an arbitration proceeding affords basic elements of adjudicatory procedure, such as an opportunity for presentation of evidence, the determination of issues in an arbitration proceeding should generally be treated as conclusive in subsequent proceedings," }, { "docid": "18499799", "title": "", "text": "in the present case, and if so, whether any issues are precluded from relitigation. Debtor argues that although the Supreme Court has not considered whether an arbitration award is entitled to collateral estoppel effect in non-dischargeability proceedings, the Supreme Court has refused to permit arbitration awards to preclude a party’s ability to protect important federal interests in cases brought under different federal statutes. Debtor then cites McDonald v. West Branch, Michigan, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984), and Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985). In McDonald v. West Branch, Michigan, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984), the Supreme Court addressed the issue of whether an arbitration decision dismissing a policeman’s claim had collateral estoppel effect under 28 U.S.C. § 1738 in a subsequent case brought by the policeman under 42 U.S.C. § 1983. The Supreme Court first addressed the issue of whether federal courts are obliged by statute to accord res judicata or collateral estoppel effect to an arbitrator’s decision. Id. at 287, 104 S.Ct. at 1801. The Court looked at the Federal Full Faith and Credit Statute, 28 U.S.C. § 1738, and found that arbitration decisions are not subject to the mandate of § 1738. Id. The Court quoted § 1738, emphasizing its language: “judicial proceedings [of any court of any State] shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State ... from which they are taken.” Id. at 287-88, 104 S.Ct. at 1801-02 (emphasis in original). The court determined that arbitration is not a “judicial proceeding” and therefore § 1738 does not apply to arbitration awards. Id. at 288, 104 S.Ct. at 1802. However, the Court in McDonald went on to state that “[b]ecause federal courts are not required by statute to give res judicata or collateral-estoppel effect to an unappealed arbitration award, any rule of preclusion would necessarily be judicially fashioned.” Id. The court then" } ]

[ { "docid": "6811658", "title": "", "text": "a residential neighborhood is extremely unlikely to be larger than a football field. See United States v. Harrison, 103 F.3d 986, 990 (D.C.Cir.1997) (where distance from school to building entrance was 472 feet, jury could reasonably conclude that additional distance to apartment did not exceed 528 feet); United States v. Baylor, 97 F.3d 542, 546-47 (D.C.Cir.1996) (where distance from school to building was 534 feet, jury could reasonably conclude additional distance to basement apartment did not exceed 466 feet). Indeed, common sense was not all the jurors had to rely on here. During the trial, the jury saw several videotapes showing both the inside and outside of Jones’ store, and also had the benefit of a diagram of the neighborhood that could be used to roughly compare the size of the entire store to the distance between the store and the school. See Gov’t Appendix (Vol.1) at 18. IV Glover next contends that he was the victim of “sentencing entrapment.” He charges that his concurrent sentences under the schoolyard statute should be vacated because the government “orchestrated” the crimes to occur within 1000 feet of a school, by luring him to Jones’ store to make the drug transactions. Because defendant did not raise this claim below, we review it solely 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). First, we see no evidence of “orchestration” here. As Glover himself testified, he “often went to Jones’ store to play numbers [the lottery],” Glover Br. at 17, referring specifically to the period during which Jones asked him for drugs. That alone made the store a logical location for the drug deal. Nor does the government appear to have had much motive to lure Glover to the store to take advantage of enhanced sentences for distributing within 1000 feet of a school. Glover’s recidivist history generated substantially longer sentences than did the schoolyard provision. See Part V below. [13] But even if the government had chosen Jones’ store to increase Glover’s sentencing exposure, that alone would not constitute" } ]

[ { "docid": "22556753", "title": "", "text": "the FTO designation. Moreover, .Ham-moud and Amici Curiae challenge Ham-moud’s conviction on the basis that the statute lacks a specific intent requirement, which they contend is essential to avoid “guilt by association” in violation of the First and Fifth Amendments. A. To be sure, Hammoud faces a most difficult burden in this case because he failed to raise his constitutional claims at trial. Accordingly, we review his claims for plain error. United, States v. Higgs, 353 F.3d 281, 324 (4th Cir.2003) (reviewing constitutional claim not raised below for plain error); United States v. Ferguson, 211 F.3d 878, 886 (5th Cir.2000) (reviewing allegation of constitutional violation for plain error because defendant failed to raise the issue below). But cf. United States v. Osborne, 345 F.3d 281, 284 n. 2 (4th Cir.2003) (noting that the Tenth Circuit applies the plain error rule “less rigidly” when reviewing constitutional issues) (citing United States v. Ciapponi 77 F.3d 1247, 1249-50 (10th Cir.1996)). To satisfy this standard, Hammoud must show that (1) an error occurred,(2) the error was plain, (3) and the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 731-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); accord Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). If the first three elements are met, we may exercise our discretion to correct such forfeited error only where it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (internal quotation marks and citations omitted); see also Fed.R.Crim.P. 52(b) (2002) (“A plain error or defect that affects substantial rights may be considered even though it was not brought to the court’s attention.”). When “overwhelming and essentially uncontro-verted” evidence exists to support the challenged finding, there is “no basis for concluding that the error seriously affected the fairness, integrity or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 633, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (internal quotation marks and citations omitted). B. In 8 U.S.C. § 1189(a), Congress authorized the Secretary of State (hereinafter" }, { "docid": "22143772", "title": "", "text": "— to the jury beyond a reasonable doubt. Because the district court did not inform Minore during the plea colloquy that the government would have to prove to a jury beyond a reasonable doubt that Minore was responsible for more than 1000 kilograms of marijuana, the colloquy did not comply with Rule 11(c)(1). C. The Rule 11 Error Was Plain Error, but Did Not Seriously Affect the Fairness, Integrity or Public Reputation of Judicial Proceedings. We next determine whether the Rule 11 error entitles Minore to relief here. Because Minore did not raise the issue below, we will not reverse his conviction unless the district court committed plain error. United States v. Vonn, — U.S. -,-, 122 S.Ct. 1043, 1048-54, 152 L.Ed.2d 90 (2002) (holding that defendant who fails to bring Rule 11 error to district court’s attention must satisfy plain error rule on appeal); accord United States v. Ma, 290 F.3d 1002, 1005 (9th Cir.2002). “There must be an ‘error’ that is ‘plain’ and that ‘affects substantial rights.’ ” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (brackets omitted). If those requirements are met, we will exercise our discretion to correct the error only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (brackets and internal quotations omitted.) We have already concluded that the district court erred in failing to inform Mi-nore that the government would be required to prove drug quantity to the jury beyond a reasonable doubt. The error is also “plain.” “ ‘Plain’ is synonymous with ‘clear,’ or, equivalently, ‘obvious.’ ” Id. at 734, 113 S.Ct. 1770. At the time of Mi-nore’s plea colloquy, it was settled that drug quantity was a sentencing factor to be determined by the judge by a prepon derance of the evidence. E.g., Nordby, 225 F.3d at 1059; Brinton, 139 F.3d at 722-23. Under our current law, however, a finding of drug quantity, when it exposes the defendant to a higher statutory maximum than he would face for an unspecified amount of drugs, must be made by the jury" }, { "docid": "22784772", "title": "", "text": "Muhammad argues that his sentence should be vacated because the dis trict court did not permit him to alloeute before he was resentenced. Muhammad concedes that he did not object to the denial of allocution in the district court. We therefore review his claim 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); United States v. Cole, 27 F.3d 996, 998 (4th Cir.1994). To establish plain error, Muhammad 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 Muhammad makes this three-part showing, correction of the error remains within our discretion, which we “should not exercise ... unless the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)) (second alteration in original). “Before imposing sentence, the [district] court must ... address the defendant personally in order to permit [him] to speak or present any information to mitigate the sentence.” Fed.R.Crim.P. 32(i)(4)(A)(ii). This rule “is not satisfied by merely affording the Defendant’s counsel the opportunity to speak.” Cole, 27 F.3d at 998 (internal quotation marks & alteration omitted). As the Supreme Court has noted, “[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (plurality opinion). In Cole, we addressed a denial of allocution claim similar to Muhammad’s. Cole was convicted of a drug offense and was sentenced at the bottom of the guideline range as determined by the district court. See Cole, 27 F.3d at 997-98. The district court did not, however, allow Cole to allo-cute before sentencing, and it rejected Cole’s attempt to address the court after his sentence was imposed. See id. at 998. On plain error review, we did “not hesitate in ruling that this right" }, { "docid": "23375813", "title": "", "text": "Federal Rules of Crimi nal Procedure. See Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). To establish plain error, Marrero must show an “error” that was “clear or obvious,” that “affected [his] substantial rights,” and that “ ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “Meeting all four prongs is difficult, as it should be.” Id. (internal quotation marks omitted). Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b). “Where the challenged evidence is ‘intrinsic’ to, or ‘inextricably intertwined’ with evidence of, the crime charged, Rule 404(b) is not applicable.” United States v. Henderson, 626 F.3d 326, 338 (6th Cir.2010). That is: Proper background evidence has a causal, temporal or spatial connection with the charged offense. Typically, such evidence is a prelude to the charged offense, is directly probative of the charged offense, arises from the same events as the charged offense, forms an integral part of a witness’s testimony, or completes the story of the charged offense. United States v. Hardy, 228 F.3d 745, 748 (6th Cir.2000). The circumstances under which police officers apprehended Marrero are inextricably intertwined with evidence of the possession crimes with which he was later charged. See Henderson, 626 F.3d at 338. Marrero’s attempt to hide from police officers inside a dryer, the officers’ discovery of Marrero, and the ensuing struggle all have a temporal connection to, and completes the story of, the charged offense. See Hardy, 228 F.3d at 748. Therefore, it was not error, let alone plain error, for the district court to allow the admission of this evidence. IV. Use of a Police Report to Refresh a Witness’s Recollection Marrero also challenges the district court’s overruling of his objection to the Government’s use of a search warrant tabulation report to refresh the recollection of a witness, Officer Danielle Brennan. Marrero argues that" }, { "docid": "14838556", "title": "", "text": "insufficient evidence. See United States v. Hardy, 289 F.3d 608, 612 (9th Cir.2002). Viewing the evidence in the light most favorable to the government, we must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We review a district court’s formulation of jury instructions for abuse of discretion. See United States v. Shipsey, 363 F.3d 962, 967 n. 3 (9th Cir.2004). We also review a district court’s decision to use a special verdict form for abuse of discretion. See United States v. Reed, 147 F.3d 1178, 1180 (9th Cir.1998). “Jury instructions, even if imperfect, are not a basis for overturning a conviction absent a showing that they prejudiced the defendant.” United States v. Frega, 179 F.3d 793, 807 n. 16 (9th Cir.1999). We ordinarily review a district court’s response to a jury question for abuse of discretion. See United States v. Romero-Avila, 210 F.3d 1017, 1024 (9th Cir.2000). We review the district court’s response to the jury’s question in this case for plain error, however, because Ramirez did not object to the court’s decision to refer the jury back to its original jury instructions. See United States v. McIver, 186 F.3d 1119, 1130-31 (9th Cir.1999). Because Ramirez did not object to the prosecutor’s questions regarding the veracity of other witnesses, instead raising the issue of alleged trial error for the first time on appeal, we review only for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 730-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under the plain error standard, relief is not warranted unless there has been: (1) error, (2) that was plain, and (3) that affected substantial rights. See United States v. Recio, 371 F.3d 1093, 1100 (9th Cir.2004). Under the third limitation of the plain error standard, “the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. Rule 52(b) normally requires that we" }, { "docid": "23076642", "title": "", "text": "B. This court has consistently held that, while facts necessary for conviction must be proved beyond a reasonable doubt in order to satisfy the requirements of due process, facts relevant to a sentencing determination need only be proved by a preponderance of the evidence. See, e.g., United States v. Urrego-Linares, 879 F.2d 1234, 1237-38 (4th Cir.1989). In her reply brief, however, Lewis argues that her sentence was imposed in violation of the Due Process Clause because the tax loss on which her guideline range was based was not charged in the indictment and found by the jury beyond a reasonable doubt. In making this argument, Lewis relies on the recent decision of the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), in which the Court held 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.” Because Lewis did not raise this argument in the district court, our review is for plain error only. 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); see also United States v. Meshack, 225 F.3d 556, 575 (5th Cir.2000) (noting that Apprendi claims would be reviewed for plain error when no objection was raised before the district court); cf. United States v. David, 83 F.3d 638, 645 (4th Cir.1996) (explaining that plain error review is appropriate when “an objection at trial would have been indefensible because of existing law, but a• supervening decision prior to appeal reverses that well-settled law”). In order to establish our authority to notice an error not preserved by a timely objection, Lewis must show that an error occurred, that the error was plain, and that the error affected her substantial rights. See Olano, 507 U.S. at 732, 113 S.Ct. 1770; United States v. Cedelle, 89 F.3d 181, 184 (4th Cir.1996). Even if Lewis can satisfy these requirements, correction of the error remains within our sound discretion, which we “should not exercise ... unless" }, { "docid": "23631714", "title": "", "text": "“I do not, Your Hon- or.” The district court then sentenced Villareal-Amarillas to 328 months’ imprisonment and Gonzalez to 151 months’ imprisonment. The government appeals, urging us to remand for resentencing. The government argues the district court failed to explain its drug quantity calculations and rule on the witnesses’ credibility. The government contends if the district court had performed the necessary drug quantity calculations, Villareal-Amarillas and Gonzalez would have faced longer Guidelines sentencing ranges. In response, Vil-lareal-Amarillas argues the district court was not “required to somehow keep a tally of each amount testified to by witnesses, add it up, and then convert that amount to kilograms to find the drug amount argued by the government,” and the witnesses’ testimony does not prove the drug quantities alleged by the government. Gonzalez claims the government failed to preserve the issue by failing to argue it before the district court, and the district court committed no plain error. Villareal-Amarillas cross-appeals his sentence. His counsel has moved to withdraw and filed an Anders brief, arguing the district court clearly erred in its factual findings and imposed an unreasonable sentence under the factors set forth in 18 U.S.C. § 3553(a). In a pro se supplemental brief, Villareal-Amarillas argues (1) the district court erred in imposing (a) the leadership enhancement, and (b) the firearm possession enhancement; (2) the government breached the plea agreement; and (3) his guilty plea was not knowing and intelligent. II. DISCUSSION A. Relevant Drug Quantity and Base Offense Levels The government contends the district court erred in setting Villareal-Amarillas’s and Gonzalez’s base offense levels at 32 because the district court did not make specific factual findings supporting its relevant drug quantity determination. The government did not, however, lodge a specific objection during the sentencing hearing to the district court’s drug quantity findings. Accordingly, the scope of our review is limited; we will not reverse unless we find plain error. 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). Plain error occurs if (1) the district court committed an error, e.g., deviation from a legal" }, { "docid": "1959986", "title": "", "text": "notify the parties of a possible downward variance, as required by Federal Rule of Criminal Procedure 32(h). In imposing Blatsteiris sentence, the court listed several reasons that it would be “counter productive to incarcerate him for two years”: Blatsteiris “early efforts to make amends for his wrong doing”; the effect of his offense on his health and profession; “his family”; and the fact that a shorter prison term would “save the United States $25,000 plus that would be wasted by warehousing him for that period of time.” J.A. 200. The prosecution, on the record, noted its objection that Blatsteiris below-guidelines sentence was inconsistent with the factors spelled out in § 3553(a). The prosecution did not object, however, to the court’s failure to give notice that it intended to vary from Blatsteiris guidelines range. Blatstein has appealed from the denial of his motion to suppress, and the Government has cross-appealed Blatsteiris sentence. We possess jurisdiction under 28 U.S.C. § 1291. II. In an appeal of a district court’s ruling on a motion to suppress evidence, we review the court’s legal conclusions de novo and its underlying factual findings for clear error. See United States v. Rusher, 966 F.2d 868, 873 (4th Cir.1992). When an appellant raises a contention of error that was not presented to the district court in the first instance, we review it for plain error only. 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). A party seeking to overturn a ruling under the plain-error test bears the burden of showing (1) that an error occurred, (2) that it was plain, and (3) that it affected the party’s substantial rights. Olano, 507 U.S. at 732, 113 S.Ct. 1770. The correction of plain error lies within our discretion, which we “should not exercise ... unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks and brackets omitted). III. A. Blatstein contends that the search warrants were invalid because Agent Howard’s affidavit failed to discuss a Virginia statutory provision that would have negated" }, { "docid": "16348290", "title": "", "text": "sale was supposed to take place. The district court did not clearly err in finding that Johnson did not play a minor role in the conspiracy to distribute methamphetamine. See United States v. Jones, 145 F.3d 959, 963 (8th Cir.1998) (less culpable defendant not entitled to reduction if defendant was “deeply involved”). Johnson also contends that his Sixth Amendment rights were violated under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because his sentence was enhanced under the sentencing guidelines by a judge finding that he was accountable for 18.14 kilograms of pseudoephedrine. In a motion for supplemental briefing, he argues that he should be resentenced under a truly advisory system with the guidance provided by United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and that information about his prior criminal record should have been submitted to a jury under a reasonable doubt standard, citing Shepard v. United States, — U.S.-, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Johnson failed to object to the drug quantity calculation in the PSR, and the court could therefore accept that quantity as admitted for sentencing purposes. United States v. Moser, 168 F.3d 1130, 1132 (8th Cir.1999) (unless defendant objects to a specific factual allegation contained in the PSR, the sentencing court may accept that fact as true). Johnson was sentenced before the Supreme Court held that the federal sentencing guidelines are only advisory, Booker, 125 S.Ct. at 756-57, but he did not raise his constitutional issues in the district court and must show plain error to prevail. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under plain error review, there must have been an error that is plain which affected substantial rights. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). If those requirements are met, we will reverse if “the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotations and internal marks omitted). For an error to affect substantial rights, it must" }, { "docid": "15893910", "title": "", "text": "title ..., including a requirement of any rule, order, waiver, or permit promulgated or approved under such section[ ].” 42 U.S.C. § 7413(c)(1) (emphasis added). The meaning of the phrase “knowingly violates” in this context is at the heart of this appeal. II. Plain Error On appeal, Weintraub challenges the district court’s jury instructions on the level of scienter required to be proved to establish that he “knowingly violated” the work-practice standard, though he did not preserve this claim below. “No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection.” Fed.R.Crim.P. 30. If an appellant, aggrieved by a district court’s jury instruction, failed to make such a particularized objection in the district court, we review the instruction only 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). We will reverse only if “there [has been] (1) error, (2) that is plain, ... (3) that affect[s] substantial rights[, and]' (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Knoll, 116 F.3d 994, 999 (2d Cir.1997) (citing, inter alia, United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)) (internal quotation marks omitted). In general, “[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). Although the defendants did propose a jury instruction on scienter, they did not present the argument that Weintraub now asserts on appeal: that the jury could convict only if it found knowledge of friability and the threshold quantity required by the asbestos regulations. While the defendants’ proposed instruction that “[a] person acts ‘knowingly’ when he acts with an awareness of a fact or circumstance rendering his conduct illegal,” could" }, { "docid": "16348291", "title": "", "text": "drug quantity calculation in the PSR, and the court could therefore accept that quantity as admitted for sentencing purposes. United States v. Moser, 168 F.3d 1130, 1132 (8th Cir.1999) (unless defendant objects to a specific factual allegation contained in the PSR, the sentencing court may accept that fact as true). Johnson was sentenced before the Supreme Court held that the federal sentencing guidelines are only advisory, Booker, 125 S.Ct. at 756-57, but he did not raise his constitutional issues in the district court and must show plain error to prevail. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under plain error review, there must have been an error that is plain which affected substantial rights. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). If those requirements are met, we will reverse if “the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotations and internal marks omitted). For an error to affect substantial rights, it must generally have affected the outcome of the proceedings below, id. at 632, 122 S.Ct. 1781, and a defendant has not met that burden if the effect of an error is uncertain. See Jones v. United States, 527 U.S. 373, 394-95, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). We conclude that Johnson has not shown that the mandatory application of the federal sentencing guidelines affected his substantial rights because he has not demonstrated a reasonable probability that the district court would have imposed a more favorable sentence if the guidelines had been applied as advisory rather than mandatory. United States v. Pirani, 406 F.3d 543, 552-53 (8th Cir.2005). After granting the § 5K1.1 motion, the district court could have imposed a lower sentence than the government suggested but it did not. See United States v. Pizano, 403 F.3d 991, 995 (8th Cir.2005) (court decides whether and to what extent a sentence should be reduced for substantial assistance). The court stated in fact that it had reservations about whether or not it should even grant the five" }, { "docid": "23086271", "title": "", "text": "Stock Exchange is sufficient to establish venue in the Southern District of New York. 2. The venue instruction Robles additionally argues that, even if venue in the Southern District was theoretically proper, the jury instruction on venue was fatally flawed. To begin, because Defendant failed to object to the substance of the venue instruction, our review is for plain error. See Fed.R.Crim.P. 30(d), 52(b); United States v. Crowley, 318 F.3d 401, 414 (2d Cir.2003). “For an error to be a ‘plain error[ ] or [a] defect[ ] affecting substantial rights,’ Fed.R.Crim.P. 52(b), it must be a ‘clear’ or ‘obvious’ deviation from current law that ‘affected the outcome of the district court proceedings.’ ” Crowley, 318 F.3d at 414-15 (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Since we conclude that the jury instruction on venue properly stated the law in this Circuit, we find that there was no error, plain or otherwise, in this aspect of the charge. First, Robles argues that venue is an essential element of a criminal charge and must, therefore, be proven beyond a reasonable doubt. See generally United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (holding that “materiality” of allegedly false statements is an essential element of the crime of making material false statements to a federal agency and thus must be submitted to the jury and proven beyond a reasonable doubt). However, this Court has repeatedly held that venue is not an essential element of the crime charged, see, e.g., Smith, 198 F.3d at 382 (citation omitted), and thus only requires proof by a preponderance of the evidence. See, e.g., United States v. Bala, 236 F.3d 87, 95 (2d Cir.2000) (“[T]he government must prove venue by a preponderance of the evidence.”) (citation omitted); United States v. Middlemiss, 217 F.3d 112, 121 (2d Cir.2000) (“The government must prove, ‘by a preponderance of the evidence, that some part of the crime was committed within the district of the prosecution.’ ”) (quotation omitted). In the instant case, the district court properly instructed the" }, { "docid": "22879887", "title": "", "text": "and we possess jurisdiction pursuant to 28 U.S.C. § 1291. II. There are, as a general proposition, two types of Booker errors. First, a sentencing court commits Sixth Amendment error if it enhances a sentence beyond the maximum authorized by facts found by a jury beyond a reasonable doubt or admitted by the defendant. See Booker, 125 S.Ct. at 756; United States v. White, 405 F.3d 208, 215 (4th Cir.2005). Second, a court commits statutory error if it treats the Guidelines as mandatory, rather than as advisory (“statutory Booker error”). See Booker, 125 S.Ct. at 757; White, 405 F.3d at 215. In this case, the sentencing court committed statutory Booker error in treating the Guidelines as mandatory. A. We must begin our analysis of Rodriguez’s claim of statutory Booker error by assessing the scope of our review, i.e., whether our review is for plain error or harmless error. Where a defendant has raised an issue for the first time on appeal, our review is for plain error only. 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). A defendant seeking to overturn a ruling under the plain-error test bears the burden of showing (1) that an error occurred, (2) that it was plain, and (3) that the error affected his substantial rights. Olano, 507 U.S. at 732, 113 S.Ct. 1770. In any event, the correction of a plain error lies within our discretion, which we “should not exercise ... unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks and alteration omitted). In White, we applied plain error analysis to an unpreserved claim of statutory Booker error, concluding that such an error was not within the class of errors for which prejudice is presumed, and also deciding that such an error was not a structural error which should be noticed regardless of its effect. See 405 F.3d at 221-22. Accordingly, in order to obtain relief for an unpreserved statutory Booker error, a defendant is obliged to satisfy the standard enunciated in Kotteakos v." }, { "docid": "22394788", "title": "", "text": "the evidentiary error harmless and decline to reverse Garcia’s conviction. See United States v. Casas, 356 F.3d at 122 (concluding that case agent’s inadmissible characterization of defendant’s role in criminal scheme was harmless because jury would have reached “same determination ... in the absence of the inadmissible testimony”); see also United States v. Garcia-Morales, 382 F.3d at 18 (concluding that erroneous admission of overview evidence was harmless because case agent’s conclusion that defendant was drug distributor was later corroborated by overwhelming evidence). B. Although Defendants’ Cases Must Be Remanded for Further Sentencing Proceedings in Light of Booker and Crosby, Defendants’ Claim that Their Guidelines Calculations Are Not Supported by Even a Preponderance of the Evidence Is Without Merit In appealing their incarceratory sentences, Garcia and Valentin both submit that the district court’s findings of fact in calculating their Sentencing Guidelines ranges were not supported by a preponderance of the evidence. Moreover, defendants assert that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, invalidates judicial fact-finding in the calculation of Guidelines ranges. They contend that the Sixth Amendment right to trial by jury requires facts triggering particular sentencing ranges to be proved beyond a reasonable doubt to a jury or specifically admitted by the defendant. After United States v. Booker, 543 U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621, we agree with defendants that there was a Sixth Amendment error in the calculation of their Guidelines ranges but, because this issue was not raised below, our review is limited to plain error. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (identifying four factors relevant to plain error analysis: there must be error; the error must be plain; the error must affect substantial rights; and it must seriously affect the fairness, integrity, or public reputation of judicial proceedings); accord United States v. Cotton, 535 U.S. 625, 681-32, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); see also Fed.R.Crim.P. 52(b). Since Booker, our court has recognized that the mandatory application of federal Sentencing Guidelines enhancements constitutes error that is plain, thus satisfying" }, { "docid": "23480732", "title": "", "text": "distribute and possess with intent to distribute equaled at least fifty (50) grams? Proved_Not proved_ 2. Count Two: Conspiracy to Distribute and to Possess with Intent to Distribute Cocaine and Marijuana Within One Thousand (1000) Feet of a Public Elementary School a. How do you find [this defendant]? Guilty_Not guilty_ b. If you find [this defendant] guilty of the conspiracy alleged in Count Two, do you find that the government has proved beyond a reasonable doubt that the amount of crack cocaine [this defendant] conspired to distribute and possess with intent to distribute within one thousand (1000) feet of a public elementary school equaled at least fifty (50) grams? Proved_Not proved_ The jury found each defendant guilty on both conspiracy counts. And it found that each defendant’s membership in a conspiracy to deal in at least 50 grams of crack cocaine had been proven beyond a reasonable doubt. Although defendants correctly point out that there was no allegation of drug quantity in the superseding indictment, they made no such' objection in the district court, and their objection on appeal is thus reviewable only under the plain-error standard, see Fed.R.Crim.P. 52(b). Under that standard, a defendant must demonstrate that (1) there was error, (2) the error was “plain,” (3) the error prejudicially affected his “substantial rights,” and (4) the error “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “An error affects substantial rights if it is prejudicial and it affected the outcome of the district court proceedings.” United States v. McLean, 287 F.3d 127, 135 (2d Cir.2002) (internal quotation marks omitted); see also United States v. Thomas, 274 F.3d 655, 666-67 (2d Cir.2001) (en banc) (applying plain-error analysis to claim of Apprendi error). Defendants have not met this standard. Although the superseding indictment omitted any allegation as to drug quantity, that omission cannot have caused any defendant to believe that quantity was not a factor in the case. While defendants might not have realized at the outset that the issue of quantity would" }, { "docid": "23299576", "title": "", "text": "at 240 months, not 360 months, before departing downward under § 5K1.1. Because Shaw did not raise this objection below, 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). In order to establish plain error, Shaw must demonstrate “that an error occurred, that the error was plain, and that the error affected his substantial rights.” United States v. Hastings, 134 F.3d 235, 239 (4th Cir.1998). Even if Shaw establishes all three requirements, “correction of the error remains within our sound discretion, which we should not exercise unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks and alterations omitted). We agree with Shaw that 240 months was the applicable guideline sentencing range by operation of § 5Gl.l(a), and that, as a result, 240 months should have served as the starting point for any downward departure the district court exercised its discretion to grant. See U.S.S.G. § 5G1.1 comment. (“This section describes how the statutorily authorized maximum sentence ... may affect the determination of a sentence under the guidelines. For example, if the applicable guideline range is 51-63 months and the maximum sentence authorized by statute for the offense of conviction is 48 months, the sentence required by the guidelines ... is 48 months; a sentence of less than Jp8 months would be a guideline departure.” (emphasis added)). For all practical purposes, the government concedes that the district court plainly erred in its determination that Shaw’s sentencing range was 360 months to life, and assumes for the sake of argument that the error affected Shaw’s substantial rights. Relying on United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), the government nevertheless contends that even if Shaw were able to satisfy the first three plain error requirements, the error is not one that would affect “the fairness, integrity or public reputation of judicial proceedings.” Hastings, 134 F.3d at 239 (internal quotation marks omitted). In Cotton, the Supreme Court considered whether plain error could be" }, { "docid": "22614458", "title": "", "text": "had the power to exercise, dominion and control over the item.” United States v. Jackson, 124 F.3d 607, 610 (4th Cir.1997) (internal quotation marks omitted). Here, proof that the ammunition was found in White’s residence likely would have been sufficient to show that White constructively possessed it. See United States v. Shorter, 328 F.3d 167, 172 (4th Cir.), cert. denied, 540 U.S. 928, 124 S.Ct. 337, 157 L.Ed.2d 231 (2003). Nevertheless, because White and his wife claimed to have kept separate dressers, the district court did not abuse its discretion in admitting the evidence of the badge and sweatshirt to demonstrate that White exercised control over the dresser in which the ammunition was found. See United States v. Burgos, 94 F.3d 849, 873 (4th Cir.1996) (en banc) (explaining that constructive possession “may be sole or joint” (internal quotation marks omitted)). In addition, the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. The Government did not attempt to use this evidence for any purpose other than demonstrating constructive possession. We thus conclude that the district court did not abuse its discretion in refusing to exclude this evidence under Rule 403. III. White next argues that under United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court erred by treating the sentencing guidelines as mandatory in determining his sentence. White thus contends that he is entitled to “seek resentencing pursuant to the remedial scheme enunciated in Booker.” Supp. Br. of Appellant at 8; see Booker, 125 S.Ct. at 769. Because White did not raise this issue in the district court, 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, White 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 White makes this three-part showing, correction of the error remains within our discretion, which we “should not exercise" }, { "docid": "17420669", "title": "", "text": "United States v. Ekinci, 101 F.3d 838, 841-3 (2d Cir.1996), we held that there was a difference between “distribute” and “dispense” for the purpose of determining the question of guilt under 21 U.S.C. § 860 (prohibiting distributing, but not dispensing, controlled substances within one thousand feet of a school). We went on to note, however, that in prosecutions under Sections 841 and 846, “it may well be that there is no significant difference between dispensation and distribution.” Ekinci, 101 F.3d at 842. In any event, there is no showing of prejudice in this case in light of the overwhelming evidence presented on behalf of the government. For the same reason, it cannot be said that the error alleged “seriously affect[ed] the fairness, integrity[,] or public reputation of judicial proceedings, United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks omitted), as is required to establish that a plain error affected substantial rights. Although Singh made no objection to the instruction noted above, as required, see Fed.R.Crim.P. 30(d), note is taken of the argument made by Singh in his pretrial motion and at the charge conference for an instruction in accordance with United States v. Moore, 423 U.S. 122, 142-43, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). A Moore instruction would have conveyed to the jury that Singh could be convicted only “if the jury found that he knowingly distributed controlled drugs ‘other than in good faith ... in the usual course of professional practice and in accordance with a standard of medical practice generally recognized and accepted in the United States.’ ” United States v. Vamos, 797 F.2d 1146, 1151 (2d Cir.1986) (quoting Moore, 423 U.S. at 138-39, 96 S.Ct. 335). Rejecting Singh’s argument, the District Court found that Singh could be convicted without reference to the standard in Moore if he caused and aided and abetted the distribution or dispensation by others not authorized to do so. The District Judge did in fact accommodate the contention Singh advanced in the District Court by charging the jury as follows: If, however you" }, { "docid": "22102989", "title": "", "text": "of the panel regarding all other issues. Accordingly, we affirm Appellants’ convictions and Phifer’s sentence; however, we vacate Angle’s sentence and remand for more specific fact finding regarding the amount of drugs attributable to him for sentencing purposes. II. Because neither Angle nor Phifer objected at trial to the failure of the district court to treat specific threshold drug quantities as elements of aggravated drug trafficking offenses, 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). In order to demonstrate plain error, Appellants must show that an error occurred, that the error was plain, and that the error affected their substantial rights. See Olano, 507 U.S. at 732, 113 S.Ct. 1770; United States v. Jackson, 124 F.3d 607, 614 (4th Cir.1997). Even if Appellants can satisfy these requirements, correction of the error remains within our discretion, which we “should not exercise ... unless the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (second alteration in original) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Before turning to our consideration of whether Appellants can satisfy the requirements of plain error analysis, we pause to reiterate the relevant conclusions reached in Promise. In Promise, we held that Apprendi mandates that specific threshold drug quantities be treated as elements of aggravated drug trafficking offenses. See United States v. Promise, 255 F.3d 150, - (4th Cir.2001). We further held that the district court plainly erred in failing to do so. See id. at-. A. Turning first to Angle’s challenge, we conclude that he cannot demonstrate any Apprendi error committed by the district court. Angle was charged with conspiring to possess with the intent to distribute and to distribute “a quantity of cocaine and cocaine base,” J.A. 52, and he does not dispute that the jury was properly charged as to the elements of this offense. Accordingly, Angle was charged with, and convicted of, conspiring to commit an offense" }, { "docid": "17420668", "title": "", "text": "because nurses cannot “dispense,” and the use of the word “prescribe” allowed the jury to find only that they were “dispensing” rather than “distributing,” the error would not be plain. Assuming, then, that the instruction was incorrect, as Singh contends, because it would allow the jury to find only unauthorized dispensing by the nurses rather than distributing, it could not be considered plainly erroneous for the following reasons. Fed.R.Crim.P. 52(b) limits the review of unpreserved error as follows: First, there must be “error,” or deviation from a legal rule which has not been waived. Second, the error must be “plain,” which at a minimum means “clear under current law.” Third, the plain error must, as the text of Rule 52(b) indicates, “affect[ ] substantial rights,” which normally requires a showing of prejudice. United States v. Workman, 80 F.3d 688, 696 (2d Cir.1996) (quoting United States v. Viola, 35 F.3d 37, 43 (2d Cir.1994) (alteration in original)). In the first place, the error here, if any, is not clear under current law in this Circuit. In United States v. Ekinci, 101 F.3d 838, 841-3 (2d Cir.1996), we held that there was a difference between “distribute” and “dispense” for the purpose of determining the question of guilt under 21 U.S.C. § 860 (prohibiting distributing, but not dispensing, controlled substances within one thousand feet of a school). We went on to note, however, that in prosecutions under Sections 841 and 846, “it may well be that there is no significant difference between dispensation and distribution.” Ekinci, 101 F.3d at 842. In any event, there is no showing of prejudice in this case in light of the overwhelming evidence presented on behalf of the government. For the same reason, it cannot be said that the error alleged “seriously affect[ed] the fairness, integrity[,] or public reputation of judicial proceedings, United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks omitted), as is required to establish that a plain error affected substantial rights. Although Singh made no objection to the instruction noted above, as required, see Fed.R.Crim.P. 30(d)," } ]

[ { "docid": "10471687", "title": "", "text": "2943, 2949, 57 L.Ed.2d 957 (1978); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In McDonnell Douglas, the Court said: This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applications from persons of complainant’s qualifications. Id. 411 U.S. at 802, 93 S.Ct. at 1824. With respect to claims of retaliation, the relevant statute, Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), provides in pertinent part: It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, ... because he has opposed any practice made an unlawful employment practice by this subchapter or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. The McDonnell Douglas shifting of burdens similarly applies in cases of alleged retaliation. Jackson v. Pepsi-Cola, Dr. Pepper Bottling Co., 783 F.2d 50, (6th Cir.), cert. denied — U.S.-, 106 S.Ct. 3298, 92 L.Ed.2d 712 (1986). However, the framework of a prima facie case differs somewhat when the plaintiff alleges retaliation. The plaintiff may establish a prima facie case by showing: (1) he engaged in a protected activity; (2) his employer subsequently subjected him to adverse employment action; and (3) a causal link existed between the two events. Yates v. AVCO Corporation, 819 F.2d 630, 637 (6th Cir. 1987); Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir.1982), cited with approval in Yates, supra. Again, once plaintiff establishes a prima facie case, defendant assumes the burden of articulating a legitimate, non-discriminatory reason for the adverse action, and then plaintiff may rebut this by showing the articulated reason is merely pretextual. This case also involves a claim of constructive discharge in connection with the alleged Title VII violations. “A" } ]

[ { "docid": "11015217", "title": "", "text": "would shut down a production line for the sole purpose of depriving Long of the opportunity to work overtime on a favorable assignment. Furthermore, Long’s complaint regarding the decision to add additional production lab jobs does not suggest discrimination. Witnesses for both plaintiffs and the Company consistently testified that production needs change frequently in PQA. The constant fluctuation in manpower needs is what causes lab techs who have originally been assigned to Reprocessing to be reassigned to upper floor jobs. It is quite understandable that overtime opportunities would similarly fluctuate. Furthermore, plaintiffs have failed to show by a preponderance of the evidence that male lab techs have been allowed to change their overtime assignments when more favorable overtime opportunities arise. Accordingly, the Court finds that plaintiffs have not been discriminated against with respect to the assignment of overtime opportunities. F. Retaliation Claims. 42 U.S.C. § 2000e-3 provides in pertijient part: It shall be an unlawful employment practice for an employer to discriminate against any of his employees ..., or for a labor organization to discriminate against any member thereof ..., because he has opposed any practice made an unlawful employment practice- by this subchapter, or because he has made a charge ... under this subchapter. Allegations of retaliatory discrimination are considered to be\" “ancillary” to the allegations in an underlying EEOC charge. Gupta v. East Texas State University, 654 F.2d 411, 413 (5th Cir.1981). Therefore, when an initial charge has been filed with the EEOC, independent charges of discrimination need not be filed with respect to claims of retaliatory discrimination before a Court can entertain such claims. Gupta, 654 F.2d at 413. But see, Waiters v. Parsons, 729 F.2d 233 (3rd Cir.1984) (refusing to adopt such a “per se” rule). To establish a prima facie pase of retaliatory discrimination a plaintiff must show: (1) she engaged in activity protected by Title VII; (2) an adverse employment action occurred; (3) a causal connection existed between participation in the protected activity and the adverse employment action. Wentz v. Maryland Casualty Co., 869 F.2d 1153, 1154-55 (8th Cir.1989); McDaniel v. Temple Independent School" }, { "docid": "11153461", "title": "", "text": "divisional office space (“rent chargebacks”). The ADEA prohibits retaliation against persons who bring charges of age discrimination, specifying that: It shall be unlawful for an employer to discriminate against any of his employees ... because such individual ... has opposed any practice made unlawful by this section, or because such individual ... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter. 29 U.S.C. § 623(d) (1988). Courts analyze ADEA retaliation claims in the same manner in which they analyze retaliation claims brought under Title VII. Wentz v. Maryland Casualty Co., 869 F.2d 1153, 1154 (8th Cir.1989). To establish a prima facie case of retaliation, plaintiffs must demonstrate: Id. at 1154-55. Adverse employment actions that occurs before plaintiffs engage in protected conduct, however, cannot constitute retaliation. See, e.g., Reaves v. Westinghouse Elec. Corp., 683 F.Supp. 521, 527 n. 7 (D.Md.1988) (finding no retaliation when employer’s investigation, which ultimately led to employee’s discharge, had begun before employee filed a charge with the EEOC). In the present case, IDS’s policy of assessing chargebacks was instituted well before plaintiffs filed this action; plaintiffs concede that IDS began assessing the allegedly illegal chargebacks “[b]e-ginning in or about 1987”. Moreover, all the challenged chargebacks were incurred pursuant to the provisions of the plaintiffs’ division manager agreements, all of which were entered into long before this lawsuit began in January 1989. Plaintiffs further admit that they “do not allege that actions which IDS took prior to the filing of this lawsuit were retaliatory for the filing of the suit.” Based on the foregoing, plaintiffs cannot establish that the challenged chargebacks were imposed at the same time, or after, plaintiffs engaged in protected conduct or that the chargebacks were imposed in retaliation for plaintiffs’ participation in this lawsuit. The court therefore grants IDS’s motion for summary judgment on plaintiffs’ claims under both the ADEA and ERISA concerning the assessment of the challenged chargebacks. 1. That they engaged in conduct protected by'the ADEA; 2. That they were subjected to adverse employment action at the time of, or after," }, { "docid": "16313370", "title": "", "text": "an administrative charge. Proving retaliation claims under the ADEA follows the same general approach taken to similar claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3. Anderson v. Phillips Petroleum Co., 861 F.2d 631, 634 (10th Cir.1988). To establish a prima facie case of retaliatory discharge in violation of the ADEA, Wentz must show: (1) he engaged in conduct protected under the ADEA; (2) he was subjected to an adverse employment action at the time of, or after, the protected conduct occurred; and (3) there was a causal link between the protected activity and the adverse employment action. See id.; see also Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir.1980) (Title VII claim for retaliatory discharge), cert. denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). Conduct protected under the ADEA includes opposing ongoing discriminatory treatment as well as participating in an ADEA proceeding by filing a formal charge with the EEOC. See 29 U.S.C. § 623(d). Contrary to the district court’s ruling, however, “[t]o prove that he engaged in protected activity, [Wentz] need not establish that the conduct he opposed was in fact [discriminatory].” Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988) (race discrimination under Title VII); see Davis v. State Univ., 802 F.2d 638, 642 (2d Cir.1986) (age discrimination under Title VII); Sisco v. J.S. Alberici Constr. Co., 655 F.2d 146, 150 (8th Cir.1981) (race discrimination under Title VII), cert. denied, 455 U.S. 976, 102 S.Ct. 1485, 71 L.Ed.2d 688 (1982). Instead, he must demonstrate a good faith, reasonable belief that the underlying challenged action violated the law. Manoharan, 842 F.2d at 593; Sisco, 655 F.2d at 150. We believe Wentz is not precluded as a matter of law from pursuing a retaliation claim even though his discrimination claim ultimately was unsuccessful. Accordingly, we reverse the district court’s ruling and remand for further proceedings on Wentz’ retaliation claim. In so doing, we do not preclude summary judgment proceedings on whether Wentz had a good faith, reasonable belief that he was discharged" }, { "docid": "23377364", "title": "", "text": "Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies to claims of retaliation. See Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir.1980); see also Cobb v. Anheuser Busch, Inc., 793 F.Supp. 1457, 1489 (E.D.Mo.1990). Under the burden-shifting analysis, the plaintiff must first establish a prima facie case of retaliatory discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. To establish a prima facie case of retaliatory discrimination, a plaintiff must show: (1) she engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal connection existed between participation in the protected activity and the adverse employment action. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.1999) (en banc), cert. denied, — U.S. -, 120 S.Ct. 59, 145 L.Ed.2d 51 (1999). The same standards apply to MHRA retaliation claims. See Cross v. Cleaver, 142 F.3d 1059, 1076 (8th Cir.1998). Once the plaintiff establishes a prima facie case of retaliation, the burden shifts to the employer to produce some legitimate, non-discriminatory reason for the adverse action. See Womack, 619 F.2d at 1296. If the employer satisfies this burden, the plaintiff must prove the proffered reason is a pretext for retaliation. See id. Ultimately, the plaintiff must establish the employer’s adverse action was based on intentional discrimination. See Ryther v. RARE 11, 108 F.3d 832, 837-38 (8th Cir.1997) (en banc) (applying the McDonnell Douglas burden shifting analysis in an age discrimination case). A finding of unlawful retaliation, however, is not conditioned on the merits of the underlying discrimination complaint. See generally Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir.1986). Title VII’s prohibition against retaliatory discrimination protects activities ranging from filing a complaint to expressing a belief that the employer has engaged in discriminatory practices. See, e.g., Wentz v. Maryland Casualty Co., 869 F.2d 1153, 1154-55 (8th Cir.1989) (applying the approach taken under Title VII to claim of retaliatory discharge under the Age Discrimination in Employment Act). A plaintiff need not establish the conduct which she opposed was in fact discriminatory" }, { "docid": "11325497", "title": "", "text": "statutorily protected activity; (2) an adverse employment action; and (3) a causal connection between the adverse employment action and the protected activity. Wentz v. Maryland Casualty Co., 869 F.2d 1153, 1154-55 (8th Cir.1989); Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir.1980), cert. denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). Title VII provides that an employer may not discriminate against an employee on the basis that the employee “has opposed any practice made an unlawful employment practice.” 42 U.S.C. § 2000e-3(a). Thus our initial inquiry turns on whether the school district had engaged in any “unlawful employment practice,” Evans’ opposition to which was statutorily protected. To demonstrate the presence of protected opposition, a plaintiff must show a good faith reasonable belief that his employer engaged in a discriminatory employment practice. Sisco v. J.S. Alberici Constr. Co., 655 F.2d 146, 150 (8th Cir.1981) (subsequent history omitted); see Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045 (7th Cir.1980). Here, however, the genesis of Evans’ claims lies not with any allegation of a discriminatory employment practice, but rather with an allegation that Doctor Cooper’s efforts to comply with a desegregation directive disregarded the needs of the black student population of Southeast. Rather than relating to the terms and conditions of Evans’ employment, this initial protest at the staff meeting in which Dr. Cooper unveiled his plan for the school pertained to Evans’ conflicting vision for the school. Title VII is not a “bad acts” statute. Crowley v. Prince George’s County, 890 F.2d 683, 687 (4th Cir.1989) (subsequent history omitted). Doctor Cooper’s directives to the faculty and staff of Southeast related to concerns about the school’s responsibility to the student body and not to employment practices. See id.; see also Jamil v. Secretary of Defense, 910 F.2d 1203, 1207 (4th Cir.1990) (opposition to employer action not constituting an employment practice is unprotected under Title VII). Doctor Cooper’s announced course of action with respect to the magnet school program reflected his intention to comply with the district court’s desegregation order. Evans was aware of the desegregation order and magnet" }, { "docid": "22077082", "title": "", "text": "v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir.1980). To establish that his activity is protected under Title VII, a plaintiff need not prove the merit of his underlying discrimination complaint, but only that he was acting under a good faith, reasonable belief that a violation existed. Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir.1989); Manoharan v. Columbia University College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988). In addition to protecting the filing of formal charges of discrimination, § 704(a)’s opposition clause protects as well informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges. See Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir.1989), and Schlei & Grossman, Employment Discrimination Law, 548-49 (1983). The causal connection between the protected activity and the adverse employment action can be established indirectly with circumstantial evidence, for example, by showing that the protected activity was followed by discriminatory treatment or through evidence of disparate treatment of employees who engaged in similar conduct or directly through evidence of retaliatory animus. DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir.), cert. denied 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987); Grant v. Bethlehem Steel, 622 F.2d 43, 46 (2d Cir. 1980). Title VII is violated if a retaliatory motive played a part in the adverse employment actions even if it was not the sole cause, Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir.1986), and if the employer was motivated by retaliatory animus, Title VII is violated even if there were objectively valid grounds for the discharge. DeCintio, 821 F.2d at 116, n. 8. Once the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to “articulate some legitimate, nondiscriminatory reason” for its action. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. If they do so, the burden then shifts back to the plaintiff “to" }, { "docid": "22452749", "title": "", "text": "the conduct she opposed was in fact discriminatory. See Wentz v. Maryland Casualty Co., 869 F.2d 1153, 1155 (8th Cir.1989). Rather, Stuart must demonstrate a good faith, reasonable belief that the underlying conduct violated the law. See id. Both parties concede Stuart filed a charge of discrimination and that she was terminated by GMC. The key questions are whether there is a causal link between Stuart’s filing a charge and her termination, and if such a link exists, whether GMC’s proffered reason for terminating Stuart is a pretext for unlawful discrimination. Stuart argues the disciplinary actions which followed her initial complaint to Markovich about sexual discrimination establish a pattern of animosity pointing to a causal link. To support her claim that a pattern of animosity existed, Stuart argues the disciplinary actions after her complaints in July 1996 reveal a growing discriminatory animus and her termination was the final step in a discipline track in which she was improperly placed following the filing of her grievance with Markovich on July 15, 1996. This argument is unconvincing. First, plaintiff does not deny the factual basis of three of the five instances of disciplinary action to which she was subject to between the filing of her complaints of discrimination and harassment with GMC and her termination. Thus, there exist legitimate, non-retaliatory reasons for the three disciplinary actions. Second, Stuart does not provide evidence that similarly situated workers were treated differently for the same infractions. Third, although Stuart denies the factual basis for the infractions of July 14 and July 18 which resulted in discipline for tardiness in returning from a break and insubordination, and Stuart alleges the discipline she received for those infractions was retaliatory, nearly six months elapsed between the allegedly retaliatory discipline and Stuart’s termination. As discussed below, standing alone, it is doubtful a six month gap between a complaint and termination is sufficient to create an inference of retaliation. Fourth, the disciplinary action taken with respect to Barry and Stuart’s alleged indecent act was consistent with GMC’s past discipline for similar employees, Esther Dean and Elbert Moody, who were terminated" }, { "docid": "16313372", "title": "", "text": "for engaging in protected activity. Our remand also is limited in one respect. We agree with the district court’s ruling on the aspect of Wentz’ retaliation claim based on Maryland’s reaction to his EEOC filing. Thus, on remand, Wentz may proceed on his retaliation claim only insofar as it relates to his contention that Maryland discharged him for opposing discriminatory treatment based on his age. Finally, we have carefully reviewed Wentz’ arguments regarding his disputed state law claims for breach of an oral employment contract and defamation. Having done so, we do not disagree with the district court’s disposition of those claims, and we affirm the court’s decision to that extent. REVERSED IN PART, AFFIRMED IN PART, AND REMANDED. WOLLMAN, Circuit Judge, concurring. I write separately only to emphasize that on remand Wentz must, in addition to establishing that he had a good faith, reasonable belief that he was discharged for engaging in protected activity, establish that Maryland’s relatiatory motive (assuming that Wentz can prove that it had one) was a “but for” cause of the adverse employment decision. See Davis v. State University of New York, 802 F.2d 638, 644-45 (2d Cir.1986) (Newman, J., concurring); Dominic v. Consolidated Edison Co., 822 F.2d 1249, 1260 (2d Cir.1987) (panel statement on rehearing); Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 594-95 (2d Cir.1988)." }, { "docid": "9954804", "title": "", "text": "See Williams, 781 F.Supp. at 1428. A claim for reprisal requires a plaintiff to show that she participated in a protected activity, that an adverse employment action was taken against her, and that a causal connection exists between the two events. See Wiehoff v. GTE Directories Corp., 61 F.3d 588, 597-98 (8th Cir.1995); Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn.1983). “Protected activity ‘includes opposing ongoing discriminatory treatment.’” Wiehoff, 61 F.3d at 598 (quoting Wentz v. Maryland Casualty Co., 869 F.2d 1153, 1155 (8th Cir.1989)). Here, Smith fails to establish a prima facie case of discrimination concerning Datacard’s decision to terminate her. In a reprisal claim, the causal connection element “may be demonstrated indirectly by evidence of circumstances that justify an inference of retaliatory motive, such as a showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time.” Hubbard, 330 N.W.2d at 445. Here, Smith’s argument is summed up in the following factual observation: “[S]hortly after Plaintiff complained about discriminatory treatment, DataCard needed to remove her from its employment.” (Pl.’s Mem. Opp’n at 19.) Smith’s contention, however, completely contradicts her sworn testimony that she had complained to Reher about her treatment for years prior to her termination. In addition, it ignores the undisputed fact that Reher was not a decisionmaker with respect to her termination, and that DataCard conducted an investigation prior to reaching its decision. With no other evidence of a causal connection or of pretext, no genuine issue of material fact exists and her reprisal claim must fail. Consequently, the Court grants Datacard’s motion and dismisses Count VIII. 6. Aiding and Abetting Discrimination in Violation of the Minnesota Human Rights Act In Count IX, Smith alleges that Re-her aided and abetted unlawful discrimination, in violation of the MHRA. Specifically, Smith asserts that she “was fired for complaining of unequal treatment for [sic] her working conditions.” (Comply 55.) Minnesota Statutes section 363.03, subdivision 6, creates statutory liability for aiding or attempting to aid a person engaging in conduct forbidden by the MHRA. According to" }, { "docid": "22894053", "title": "", "text": "Cir.1986), cert. denied, 481 U.S. 1017, 107 S.Ct. 1895, 95 L.Ed.2d 502 (1987); Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045-46 (7th Cir.1980). However, to receive protection, a plaintiff must file the lawsuit and make the accusations underlying the lawsuit in good faith and with a reasonable and sincere belief that he or she is opposing unlawful discrimination. Dey, 28 F.3d at 1458; Jennings, 796 F.2d at 967; Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1182 (7th Cir.1982) (“it is good faith and reasonableness, not the fact of discrimination, that is the critical inquiry in a retaliation case”); Berg, 612 F.2d at 1045-46. Our discussion in Holland, 883 F.2d at 1314-15, an employment discrimination case under Title VII, is instructive: A plaintiff raising a retaliation claim must have a reasonable belief that she is opposing unlawful discrimination “for it seems unlikely that the framers of Title VII would have wanted to encourage the filing of utterly baseless charges by preventing employers from disciplining the employees who made them.” Id. (quoting Rucker, 669 F.2d at 1182). Based upon this record, the district court could have concluded that Dr. Roth’s discrimination suit was not made in good faith and that his accusations made in connection with the suit were baseless. The conclusion is supported by the district court’s credibility determinations of the witnesses who appeared before him and the specific finding that Dr. Roth has repeatedly attempted to circumvent and/or manipulate the system by using his alleged disability to gain a competitive advantage. Thus, the district court did not abuse its discretion when finding that the defendants have a valid, non-discriminatory basis “to not to want to have anything to do with the plaintiff further....” B. Irreparable Harm Although the district court did not reach the issue, we are convinced that Dr. Roth has also failed to make the requisite showing that he will suffer irreparable harm in the absence of the preliminary injunction. Cf. EEOC v. City of Janesville, 630 F.2d 1254, 1259 (7th Cir.1980) (“Reinstatement pending a trial on the merits, even in cases of race" }, { "docid": "4131415", "title": "", "text": "Pac. R.R. Co., 803 F.2d 401, 406-07 (8th Cir.1986) (same showing for retaliation for filing race discrimination claims under § 1981 and § 2000e); Benson v. Little Rock Hilton Inn, 742 F.2d 414, 416 (8th Cir.1984) (retaliation claims brought under § 1981 require same three-prong prima facie showing as those brought under Title VII); Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980), (same showing in case alleging retaliation for filing a Title VII complaint of race discrimination), cert. denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). Once the plaintiff establishes a prima facie case of retaliation, the burden shifts to the employer to produce some legitimate nondiseriminatory reason for the adverse employment decision. McDaniel v. Temple Indep. Sch. Dist., 770 F.2d 1340, 1346 (5th Cir.1985). If the employer meets this burden, the plaintiff must then prove that the proffered reason is a pretext for retaliation. Id. A plaintiff must ultimately establish that the employer’s retaliatory motive was a “but for” cause of the adverse employment decision. See Wentz, 869 F.2d at 1155 (Wollman, J. concurring). Here, KTIV contends that O’Bryan is unable to show a causal connection between the adverse employment decision and his filing of a charge of discrimination. The third prong of the showing, however, may be met, for example, by “‘proof that the discharge followed the protected activity so closely in time as to justify an inference of retaliatory motive.’ ” Schweiss, 987 F.2d at 549 (quoting Rath, 978 F.2d at 1090) (discharge followed report to OSHA by only four days); see also Rath, 978 F.2d at 1090 (stating standard, but expressing doubt that discharge six months after alleged whistle-blowing met causal connection requirement); Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989) (discharge thirty days after protected activity was sufficient temporal proximity for causal connection); Keys v. Lutheran Family and Children’s Serv. of Missouri, 668 F.2d 356, 358 (8th Cir.1981) (less than two months sufficient proximity for causal connection); Womack, 619 F.2d at 1296 (twenty-three days sufficient proximity for causal connection). O’Bryan has demonstrated a temporal proximity between his filing" }, { "docid": "11015220", "title": "", "text": "612 F.2d 1041 (7th Cir.1980); Coleman v. Wayne State University, 664 F.Supp. 1082 (E.D.Mich.1987). A plaintiff need not establish that the conduct she opposed was in fact discriminatory, but, rather, must demonstrate a good faith reasonable belief that the underlying challenged action violated the law. Wentz, 869 F.2d at 1153. With respect to a number of plaintiffs’ claims, but particularly with respect to plaintiffs’ retaliation claims, the issue of the witnesses’ credibility is virtually dispos-itive of plaintiffs’ claims. In determining credibility a Court should consider the relationship of the witnesses to the parties, the witnesses’ interest in the outcome of the proceedings, the witnesses’ demeanor while testifying, the witnesses’ opportunity to observe and acquire knowledge of what they were testifying about, and the extent to which the testimony was supported or contradicted by other credible evidence. Morris v. American National Can Corp., 730 F.Supp. 1489, 1494 (E.D.Mo.1989); Perkins v. General Motors Corp., 709 F.Supp. 1487, 1499 (W.D.Mo.1989). In the case at bar plaintiff Weiner testified to a number of vindictive statements allegedly made by Company officials. Ms. Weiner relied heavily on the copious notes that she took regarding events at work after she filed her charge of discrimination. Indeed, at times she was unable to recall rather significant events and conversations without the aid of her notes. Yet, many of these alleged statements by Company officials did not appear in her notes, although she claimed to remember the exact words these officials used. In addition, Weiner was unable to place many of these statements within a specific time period or recall the particular conversational context. Furthermore, although Weiner’s quotations did not actually conflict with the recollections of her co-plaintiffs as to what was said, neither were her recollections entirely consistent with those of Long, Cobb and Landzet-tel; and Weiner’s version of what was said was inevitably more harsh. Based upon these factors and upon this Court’s observation of Ms. Weiner’s overall demeanor and her difficulty in constructing cogent and responsive answers to questions posed to her, this Court does not credit the testimony of Ms. Weiner with respect to statements" }, { "docid": "11015219", "title": "", "text": "Dist., 770 F.2d 1340, 1346 (5th Cir.1985). Once the plaintiff establishes a prima facie case of retaliation, the burden shifts to the employer to produce some legitimate nondiscriminatory reason for the adverse employment decision. McDaniel, 770 F.2d at 1346. If the employer satisfies this burden, the plaintiff must ultimately prove that the proffered reason is a pretext for retaliation. Id. Ultimately, a plaintiff must establish that the employer’s retaliatory motive was a “but for” cause of the adverse employment decision. Wentz, 869 F.2d at 1155 (Wollman, J. concurring); Dominic v. Consolidated Edison Co., 822 F.2d 1249, 1260 (2d Cir.1987) (panel statement on rehearing). A finding of unlawful retaliation, however, does not depend on the merits of the underlying discrimination complaint. Davis v. State University of New York, 802 F.2d 638 (2d Cir.1986). Furthermore, Title VII’S prohibition against retaliatory discrimination protects activities ranging from the filing of a formal com plaint to expressing a belief that the employer has engaged in discriminatory practices. See, e.g., Wentz, 869 F.2d at 1153; Berg v. La Crosse Cooler Co., 612 F.2d 1041 (7th Cir.1980); Coleman v. Wayne State University, 664 F.Supp. 1082 (E.D.Mich.1987). A plaintiff need not establish that the conduct she opposed was in fact discriminatory, but, rather, must demonstrate a good faith reasonable belief that the underlying challenged action violated the law. Wentz, 869 F.2d at 1153. With respect to a number of plaintiffs’ claims, but particularly with respect to plaintiffs’ retaliation claims, the issue of the witnesses’ credibility is virtually dispos-itive of plaintiffs’ claims. In determining credibility a Court should consider the relationship of the witnesses to the parties, the witnesses’ interest in the outcome of the proceedings, the witnesses’ demeanor while testifying, the witnesses’ opportunity to observe and acquire knowledge of what they were testifying about, and the extent to which the testimony was supported or contradicted by other credible evidence. Morris v. American National Can Corp., 730 F.Supp. 1489, 1494 (E.D.Mo.1989); Perkins v. General Motors Corp., 709 F.Supp. 1487, 1499 (W.D.Mo.1989). In the case at bar plaintiff Weiner testified to a number of vindictive statements allegedly made by Company" }, { "docid": "11325496", "title": "", "text": "school year. Evans filed suit, alleging race discrimination and unlawful retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a); 42 U.S.C. § 1981; and the Missouri Human Rights Act, Mo.Rev.Stat. § 213.010 et seq. The state law and section 1981 claims were submitted to a jury following a four day trial, with the Title VII claims reserved for the bench. The jury found in favor of the school district on the race discrimination claims, but found in favor of Evans on the retaliation claims. The district court similarly found for Evans on the retaliation claims and against him on his race discrimination claims. Evans was awarded $25,002 in damages and reinstatement to a teaching position. Evans v. School Dist. of Kansas City, Mo., 861 F.Supp. 851 (W.D.Mo.1994). II. The school district contends that Evans cannot recover on his retaliation claims because his conduct was not protected by Title VII, section 1981, or the Missouri Human Rights Act. To establish a prima facie case of retaliation, a plaintiff must show: (1) that he engaged in statutorily protected activity; (2) an adverse employment action; and (3) a causal connection between the adverse employment action and the protected activity. Wentz v. Maryland Casualty Co., 869 F.2d 1153, 1154-55 (8th Cir.1989); Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir.1980), cert. denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). Title VII provides that an employer may not discriminate against an employee on the basis that the employee “has opposed any practice made an unlawful employment practice.” 42 U.S.C. § 2000e-3(a). Thus our initial inquiry turns on whether the school district had engaged in any “unlawful employment practice,” Evans’ opposition to which was statutorily protected. To demonstrate the presence of protected opposition, a plaintiff must show a good faith reasonable belief that his employer engaged in a discriminatory employment practice. Sisco v. J.S. Alberici Constr. Co., 655 F.2d 146, 150 (8th Cir.1981) (subsequent history omitted); see Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045 (7th Cir.1980). Here, however, the genesis of Evans’ claims lies not with any allegation of" }, { "docid": "4131413", "title": "", "text": "which would cause the court to reach a different result than that reached above with respect to O’Bryan’s ADEA claim. Therefore, KTIV’s motion shall be granted as to O’Bryan’s Title VII claims. I. Retaliation Claims 1. Prima Facie Case. Finally, KTIV seeks summary judgment on O’Bryan’s claims for retaliatory discharge. “Proving retaliation claims under the ADEA follows the same general approach taken to similar claims brought under Title VII of thé Civil Rights Act of 1964, 42 U.S.C. § 2000e-3.” ' Wentz v. Maryland Casualty Co., 869 F.2d. 1153, 1154 (8th Cir.1989) (citing Anderson v. Phillips Petroleum Co., 861 F.2d 631, 634 (10th Cir.1988)). As the Eighth Circuit pointed out in Wentz: To establish a prima facie case of retaliatory discharge in violation of the ADEA, Wentz must show: (1) he engaged in conduct protected under the ADEA; (2) he was subjected to an adverse employment action at the time of, or after, the protected conduct occurred; and (3) there was a causal link between the protected activity and the adverse employment action. See id.; see also Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir.1980) (Title VII claim for retaliatory discharge), cert. denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). ; Id; see Evans v. Pugh, 902 F.2d 689, 693 (8th Cir.1990) (citing Wentz). The Eighth Circuit Court of Appeals has applied this three-prong prima facie showing in a variety of employment retaliation cases. See, e.g. Reich v. Hoy Shoe Co., 32 F.3d 361, 365 (8th Cir.1994) (three-prong prima facie showing of retaliation for reporting violations to OSHA); Schweiss v. Chrysler Motors Corp., 987 F2d 548, 549 (8th Cir.1993) (OSHA retaliatory firing case); Rath v. Selection Research, Inc., 978 F.2d 1087, 1090 (8th Cir. 1992) (same three-prong showing in ERISA retaliation case); Valdez v. Mercy Hosp., 961 F.2d 1401, 1403 (8th Cir.1992) (same showing in case alleging retaliatory discharge for filing Title VII race discrimination claim); Tart v. Levi Strauss and Co., 864 F.2d 615, 617 (8th Cir.1988) (same showing in case alleging retaliation for filing a sex discrimination claim with the EEOC); Jackson v. Missouri" }, { "docid": "129109", "title": "", "text": "that she was discharged in retaliation for her opposition to defendant’s employment practices. Title VII provides: It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3(a). To determine whether there has been a retaliatory discharge under this section, a court must assess the evidence by using the three-part procedure set forth by the Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). See Klein v. Trustees of Indiana University, 766 F.2d 275, 280 (7th Cir.1985). First, the plaintiff must prove a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse action. Third, if the defendant carries its burden, the plaintiff has an opportunity to prove that the stated reason was not the defendant’s true reason for acting, but was a pretext for discrimination. To establish a prima facie case of retaliatory discharge, the plaintiff must show that (1) she engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) that there is a causal link between the protected expression and the adverse action. See Klein, 766 F.2d at 280; EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1012 (9th Cir.1983). Section 2000e-3 does not require that the challenged employment practice actually violate Title VII; it is sufficient if the plaintiff has a reasonable belief that there is a Title VII violation. See Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045-46 (7th Cir.1980). The district court found that plaintiff had established a prima facie case. Defendant argues, however, that the necessary" }, { "docid": "16313371", "title": "", "text": "prove that he engaged in protected activity, [Wentz] need not establish that the conduct he opposed was in fact [discriminatory].” Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988) (race discrimination under Title VII); see Davis v. State Univ., 802 F.2d 638, 642 (2d Cir.1986) (age discrimination under Title VII); Sisco v. J.S. Alberici Constr. Co., 655 F.2d 146, 150 (8th Cir.1981) (race discrimination under Title VII), cert. denied, 455 U.S. 976, 102 S.Ct. 1485, 71 L.Ed.2d 688 (1982). Instead, he must demonstrate a good faith, reasonable belief that the underlying challenged action violated the law. Manoharan, 842 F.2d at 593; Sisco, 655 F.2d at 150. We believe Wentz is not precluded as a matter of law from pursuing a retaliation claim even though his discrimination claim ultimately was unsuccessful. Accordingly, we reverse the district court’s ruling and remand for further proceedings on Wentz’ retaliation claim. In so doing, we do not preclude summary judgment proceedings on whether Wentz had a good faith, reasonable belief that he was discharged for engaging in protected activity. Our remand also is limited in one respect. We agree with the district court’s ruling on the aspect of Wentz’ retaliation claim based on Maryland’s reaction to his EEOC filing. Thus, on remand, Wentz may proceed on his retaliation claim only insofar as it relates to his contention that Maryland discharged him for opposing discriminatory treatment based on his age. Finally, we have carefully reviewed Wentz’ arguments regarding his disputed state law claims for breach of an oral employment contract and defamation. Having done so, we do not disagree with the district court’s disposition of those claims, and we affirm the court’s decision to that extent. REVERSED IN PART, AFFIRMED IN PART, AND REMANDED. WOLLMAN, Circuit Judge, concurring. I write separately only to emphasize that on remand Wentz must, in addition to establishing that he had a good faith, reasonable belief that he was discharged for engaging in protected activity, establish that Maryland’s relatiatory motive (assuming that Wentz can prove that it had one) was a “but for” cause of" }, { "docid": "9954803", "title": "", "text": "the alleged physical threats, pranks, and practical jokes she endured during her employment were motivated by racial animus. In particular, her allegations regarding electrical shock, chemical mixing, lunch box thievery, car vandalism, and the like, have no nexus with Smith’s race. See Williams v. Metropolitan Waste Control Comm’n, 781 F.Supp. 1424, 1426-27 (D.Minn.1992). Instead, the only reasonable connection is that these acts were in response to Smith’s purported complaints about drug use by Case, Clark, and Lindberg. In short, these scattered pieces of evidence, together with conjecture and speculation, fail to create a genuine issue of material fact regarding Smith’s race discrimination charges. Consequently, the Court grants Defendants’ motion for summary judgment and dismisses Counts V, VI, and VII. 5. Reprisal in Violation of the Minnesota Human Rights Act In Count VIII of the Complaint, Smith contends that she was terminated in retaliation for “complaining of unequal treatment for her working conditions,” • (Comply 52), in violation of the MHRA, see Minn.Stat. § 363.03, subd. 7. The McDonnell Douglas framework applies to a reprisal claim. See Williams, 781 F.Supp. at 1428. A claim for reprisal requires a plaintiff to show that she participated in a protected activity, that an adverse employment action was taken against her, and that a causal connection exists between the two events. See Wiehoff v. GTE Directories Corp., 61 F.3d 588, 597-98 (8th Cir.1995); Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn.1983). “Protected activity ‘includes opposing ongoing discriminatory treatment.’” Wiehoff, 61 F.3d at 598 (quoting Wentz v. Maryland Casualty Co., 869 F.2d 1153, 1155 (8th Cir.1989)). Here, Smith fails to establish a prima facie case of discrimination concerning Datacard’s decision to terminate her. In a reprisal claim, the causal connection element “may be demonstrated indirectly by evidence of circumstances that justify an inference of retaliatory motive, such as a showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time.” Hubbard, 330 N.W.2d at 445. Here, Smith’s argument is summed up in the following factual observation: “[S]hortly after Plaintiff complained about discriminatory" }, { "docid": "11015218", "title": "", "text": "against any member thereof ..., because he has opposed any practice made an unlawful employment practice- by this subchapter, or because he has made a charge ... under this subchapter. Allegations of retaliatory discrimination are considered to be\" “ancillary” to the allegations in an underlying EEOC charge. Gupta v. East Texas State University, 654 F.2d 411, 413 (5th Cir.1981). Therefore, when an initial charge has been filed with the EEOC, independent charges of discrimination need not be filed with respect to claims of retaliatory discrimination before a Court can entertain such claims. Gupta, 654 F.2d at 413. But see, Waiters v. Parsons, 729 F.2d 233 (3rd Cir.1984) (refusing to adopt such a “per se” rule). To establish a prima facie pase of retaliatory discrimination a plaintiff must show: (1) she engaged in activity protected by Title VII; (2) an adverse employment action occurred; (3) a causal connection existed between participation in the protected activity and the adverse employment action. Wentz v. Maryland Casualty Co., 869 F.2d 1153, 1154-55 (8th Cir.1989); McDaniel v. Temple Independent School Dist., 770 F.2d 1340, 1346 (5th Cir.1985). Once the plaintiff establishes a prima facie case of retaliation, the burden shifts to the employer to produce some legitimate nondiscriminatory reason for the adverse employment decision. McDaniel, 770 F.2d at 1346. If the employer satisfies this burden, the plaintiff must ultimately prove that the proffered reason is a pretext for retaliation. Id. Ultimately, a plaintiff must establish that the employer’s retaliatory motive was a “but for” cause of the adverse employment decision. Wentz, 869 F.2d at 1155 (Wollman, J. concurring); Dominic v. Consolidated Edison Co., 822 F.2d 1249, 1260 (2d Cir.1987) (panel statement on rehearing). A finding of unlawful retaliation, however, does not depend on the merits of the underlying discrimination complaint. Davis v. State University of New York, 802 F.2d 638 (2d Cir.1986). Furthermore, Title VII’S prohibition against retaliatory discrimination protects activities ranging from the filing of a formal com plaint to expressing a belief that the employer has engaged in discriminatory practices. See, e.g., Wentz, 869 F.2d at 1153; Berg v. La Crosse Cooler Co.," }, { "docid": "23377365", "title": "", "text": "legitimate, non-discriminatory reason for the adverse action. See Womack, 619 F.2d at 1296. If the employer satisfies this burden, the plaintiff must prove the proffered reason is a pretext for retaliation. See id. Ultimately, the plaintiff must establish the employer’s adverse action was based on intentional discrimination. See Ryther v. RARE 11, 108 F.3d 832, 837-38 (8th Cir.1997) (en banc) (applying the McDonnell Douglas burden shifting analysis in an age discrimination case). A finding of unlawful retaliation, however, is not conditioned on the merits of the underlying discrimination complaint. See generally Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir.1986). Title VII’s prohibition against retaliatory discrimination protects activities ranging from filing a complaint to expressing a belief that the employer has engaged in discriminatory practices. See, e.g., Wentz v. Maryland Casualty Co., 869 F.2d 1153, 1154-55 (8th Cir.1989) (applying the approach taken under Title VII to claim of retaliatory discharge under the Age Discrimination in Employment Act). A plaintiff need not establish the conduct which she opposed was in fact discriminatory but rather must demonstrate a good faith, reasonable belief that the underlying challenged conduct violated the law. See id. at 1155. Regarding the first prong in her prima facie case for retaliation, protected activity, sufficient evidence appears to exist on which a jury could reasonably believe Bu-ettner engaged in protected activity. While it is unclear whether any of the statements on which Buettner relies to prove she engaged in protected activity actually would constitute evidence of discrimination , Buettner must only demonstrate a good faith, reasonable belief that the underlying challenged action violated the law. See id. In viewing the record in the light most favorable to the non-moving party, we believe a jury could find Buett-ner had a good faith, reasonable belief that at least one of the statements she relayed to Quinn violated the law. Specifically, Buettner stated in her deposition of July 24, 1998, that she thought it was “very discriminatory [for Panzarino] to say that women and minorities don’t belong in the coal business.” Appendix at 445. Without determining whether Panzarino’s" } ]

[ { "docid": "22320203", "title": "", "text": "accordance with a standard, and not as a matter of judicial grace. Determinations that involve applying a legal standard to a state of facts are commonly treated as factfindings for purposes of the clearly-erroneous standard, see 9 Wright & Miller, Federal Practice and Procedure §§ 2589-2590 (1971), but in any event are not considered discretionary determinations. The reference to “certain” mistake of law adds little, for any purely legal determination made by the trial judge in granting or denying a preliminary injunction is subject to plenary appellate review, see e.g., Pratte v. NLRB, 683 F.2d 1038, 1044 (7th Cir.1982); Delaware & Hudson Ry. v. United Transport. Union, 450 F.2d 603, 620 (D.C.Cir.1971), just as any purely legal determination underlying a final judgment is. Maybe, however, the formulation in Atari is intended to distinguish between ordinary factfindings (including findings resulting from the application of a substantive standard, such as that of negligence, to the who-did-what-to-whom facts), as to which the clearly-erroneous standard clearly applies, and the balancing of harms that is required in a preliminary-injunction decision. The striking of the balance often requires a comparison of imponderables that invites an exercise of judgment by the district judge to which the court of appeals will defer even more broadly than where the judge has applied a substantive standard such as negligence— provided the judge has not committed a clear error of fact, or an error of law. Several other decisions in this circuit, however, suggest that the term abuse of discretion when used in the context of appellate review of orders granting or denying preliminary injunctions means just that there are no errors of law and no clearly erroneous findings of fact. Support for this position in this circuit is found in Hillhaven Corp. v. Wisconsin Dep’t of Health & Social Services, 733 F.2d 1224, 1226 (7th Cir.1984) (per curiam) (“we can only reverse the district court’s action [granting a preliminary injunction] if it is clearly erroneous or represents a mistake of law. The totality of the factors must point to a clear departure from the proper exercise of the district judge’s" } ]

[ { "docid": "12808018", "title": "", "text": "Id. § 193.1 — 14(h). In addition, all security deposits received after January 1, 1987 must be maintained in a federally insured account in a financial institution located in Illinois. IL Preliminary Injunction Standards In their ten-count complaint the plaintiffs allege that the Ordinance is unconstitutional; they seek a preliminary injunction against its enforcement. In the district court, Judge Parsons denied the motion for a preliminary injunction, concluding that the plaintiffs did not have a reasonable likelihood of prevailing on the merits of their complaint. In reviewing the denial of a preliminary injunction the question before us is whether the district court abused its discretion. See Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-39 (7th Cir.1986). A claim that a statute is unconstitutional on its face, of course, presents many issues that become pure questions of law. We independently review these questions of law in determining whether or not the district court abused its discretion in denying the preliminary injunction. A plaintiff seeking a preliminary injunction must demonstrate: (1) a threat of irreparable harm without an adequate remedy at law; (2) some likelihood of success on the merits of the claim; (3) a balance of relative harm weighing in favor of granting the injunction; and (4) compatability of the injunction and the public interest. See A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d 903, 906 (7th Cir.1986) (citing Roland Mach. Corp. v. Dresser Indus., 749 F.2d 380, 386-88 (7th Cir.1984)). This circuit has determined that a plaintiff must demonstrate at least \"some probability\" of success on the merits before a preliminary injunction can issue, see Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir.1986); accord Centurion Reinsurance Co. v. Singer, 810 F.2d 140, 145 (7th Cir.1987) (if there is \"only a very slight chance of prevailing,\" no injunction should issue); A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d at 906 (if chance of prevailing is \"less than negligible,\" no injunction should issue); Omega Satellite Prods. Co. v. City of Indianapolis, 694 F.2d 119, 123 (7th Cir.1982) (if chance of prevailing is \"better than negligible,\" then" }, { "docid": "8612750", "title": "", "text": "school team’s victories and other records may be stricken or forfeited if the injunction is vacated. We therefore have jurisdiction. B. 1. Applicable Standards In deciding whether to grant a preliminary injunction, a district court must first determine whether the moving party has demonstrated some likelihood of succeeding on the merits and an inadequate remedy at law if preliminary relief is not granted. If the movant has demonstrated both of these factors, the court must then consider the irreparable harm that the nonmovant will suffer if the preliminary relief is granted, balanced against the harm to the movant. Finally, the court must weigh the public interest by considering the effect of granting or denying relief on nonparties. See Grossbaum v. Indianapolis-Marion County Bldg. Auth., 100 F.3d 1287, 1291 (7th Cir.1996). [6]In Lawson Products v. Avnet, 782 F.2d 1429 (7th Cir. 19.86),. this court set forth in detail the appropriate methodology for review of a district court’s decision to issue a preliminary injunction. In that case, we stressed that, although the applicable standard of review is often described under the shorthand of “abuse of discretion,” appellate review “must vary with the nature of the lower court decision.” Id. at 1437. This more nuanced approach is necessary because, as we have just noted, the district court’s “preliminary injunction decision involves the resolution of a number of different issues, some of which are non-discretionary; others, like the final weighing and the balancing of the equities, are classically left to the discretion of the district judge.” Id. Consequently, factual determinations are reviewed under the clearly erroneous standard; the necessary legal conclusions are given de novo review. The district court’s balancing of harms is a highly discretionary matter and therefore one to which this court must give substantial deference. 2. Likelihood of Success on the Merits We turn first to whether the district court was correct in its determination that the plaintiffs have demonstrated a “likelihood of success on the merits.” In the preliminary injunction context, a “likelihood of success” exists if the party seeking the injunctive relief shows that it has a “better than" }, { "docid": "7456110", "title": "", "text": "magistrate, denied the motion. According to the district court, a preliminary injunction would be inappropriate because the plaintiffs have an adequate remedy at law. Specifically, the court found that the plaintiffs would be able to recoup any money unconstitutionally collected by the unions in the form of damages. The district court also refused to stay the state court proceedings pending the outcome of this appeal. The plaintiffs have appealed both decisions and we affirm, although on grounds other than those relied upon by the district court. II. A. Before a preliminary injunction will issue, the movant must show, as a threshold matter, that: (1) they have no adequate remedy at law; (2) they will suffer irreparable harm if the injunction is not granted; and (3) they have some likelihood of success on the merits in the sense that their “chances are better than negligible.” Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386-87 (7th Cir.1984); see also Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir.1986). If the movant can meet this threshold burden, the inquiry then becomes a “sliding scale” analysis of the harm to the parties and the public from the grant or denial of the injunction and the actual likelihood of success on the merits. In particular, and keeping in mind that the public interest may become important in a given case, the “more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor [in order to get the injunction]; the less likely he is to win, the more need it weigh in his favor.” Roland Machinery, 749 F.2d at 387. In this case, the district court determined that it did not have to reach the sliding scale analysis because the plaintiffs had failed to make the threshold showing that they would suffer irreparable harm from a denial of the injunction. We agree that there is no need to reach the sliding scale analysis in this case but we do not reach the question of whether the district court was correct in finding no" }, { "docid": "22894031", "title": "", "text": "engage in a “sliding scale” analysis by balancing the harms to the parties and the public interest. Storck U.S.A., L.P. v. Farley Candy Co., 14 F.3d 311, 314 (7th Cir.1994); Erickson, 13 F.3d at 1067; Abbott Lab., 971 F.2d at 11-12; Faheem-El v. Klincar, 841 F.2d 712, 716 (7th Cir.1988) (en banc). In assessing and weighing the competing considerations, “the district court has to arrive at a decision based on a subjective evaluation of the import of the various factors and a personal intuitive sense about the nature of the case.” Faheem-El, 841 F.2d at 716 (quoting Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436 (7th Cir.1986)); see also Abbott Lab., 971 F.2d at 12 (characterizing district court’s preliminary injunction analysis as “subjective and intuitive”); Roland v. Air Line Employees Association Int’l, 753 F.2d 1385, 1392 (7th Cir.1985). Thus, this court gives substantial deference to a district court’s decision to grant or deny a preliminary injunction, and will reverse only if the district court has abused its discretion. Zorzi v. County of Putnam, 30 F.3d 885, 895 (7th Cir.1994); Abbott Lab., 971 F.2d at 13. Moreover, we can affirm the district court’s decision on any ground. See Ping v. National Education Ass’n, 870 F.2d 1369, 1371 (7th Cir.1989). A. Likelihood of Success 1. Dr. Roth’s Discrimination Claim We are of the opinion that the district court did not abuse its discretion in finding that Dr. Roth has failed to establish some likelihood of success on the merits. To sue- eeed on his claims under the Rehabilitation Act and the ADA, Roth must meet the threshold burden of establishing that he is “disabled” within the meaning of the statutes. Hamm v. Runyon, 51 F.3d 721, 724 (7th Cir.1995); Jasany v. United States Postal Service, 755 F.2d 1244, 1248 (6th Cir.1985). As the district court properly observed, the inquiry is an individualized one, and must be determined on a case-by-case basis. Byrne v. Board of Education, 979 F.2d 560, 564 (7th Cir.1992); Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir.1986). An individual is “disabled” if he has (1) a" }, { "docid": "7711712", "title": "", "text": "The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits. Id. at 931, 95 S.Ct. at 2568. The decision to grant or deny preliminary injunctive relief is committed to the sound discretion of the district judge; there is no “right” to obtain a preliminary injunction. Naked City, 667 F.Supp. 1252. See also A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d 903, 905-06 (7th Cir.1986); Adams v. Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois, 801 F.2d 968, 971 (7th Cir.1986); Amoco Production Co. v. Village of Gambell, — U.S. -, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987). In considering a motion for preliminary injunction, the district court must evaluate the four required factors as listed above, must make factual determinations on the basis of a fair interpretation of the evidence before the court, and must draw legal conclusions in accord with a principled application of the law. Darryl H. v. Coler, 801 F.2d 893, 898 (7th Cir.1986) citing Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1438 (7th Cir.1986); see also Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386-388 (7th Cir.1984). The “likelihood of success factor” is to be balanced against the “balance of harm factor.” BeerMart, 633 F.Supp. at 1104 citing Lawson, 782 F.2d at 1434. The more heavily the balance of harm weighs in favor of the plaintiff, the degree with which the plaintiff must demonstrate likelihood of success on the merits decreases and vice versa. Id. None of the four factors is controlling; the court must weigh them all together in an attempt to reach a just result, that will maintain the status quo pending final resolution on the merits and that will avoid the error that is more economically costly in the particular circumstances. Id. 1. Likelihood of Success on the Merits Plaintiff sets forth two distinct theories of federal law to support its claim. Each will be discussed separately to" }, { "docid": "11573036", "title": "", "text": "a preliminary injunction. We accelerated our consideration of the appeal because Dynamics had only till April 24 to decide whether to buy the shares tendered in response to its offer. We heard argument on April 23 and later that day affirmed the district judge’s orders, with a notation that an opinion explaining the grounds of our decision would follow. The main issues we must address are the lawfulness of CTS’s poison pill scheme, the district court’s compliance with a federal statute requiring that a state’s attorney general be notified that the constitutionality of a statute of his state is being challenged, the constitutionality of the new Indiana takeover statute under the supremacy clause and also under the commerce clause, the significance of the potential violation of the Clayton Act, and the adequacy of the disclosures made in the tender offer. Before taking up these issues we shall comment briefly on the procedural posture of the case in this court, an appeal from orders granting and denying requests for preliminary injunctions. As emphasized in our recent opinions, in different but compatible formulations, the task for a district judge asked to grant a preliminary injunction is to compare the irreparable harm to the plaintiff if the injunction is denied, weighted by the likelihood that the denial would be erroneous because the plaintiff will prevail in the plenary trial, with the irreparable harm to the defendant if the injunction is granted, weighted by the likelihood that the grant would be erroneous because the defendant, not the plaintiff, will prevail in the trial. See Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433-34 (7th Cir.1986); American Hospital Supply Corp. v. Hospital Products Ltd., 780 F.2d 589, 593 (7th Cir.1986); Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 387-88 (7th Cir.1984). So, for example, the greater the probability that the plaintiff will win the case in the end, the less irreparable harm he need show relative to the defendant in order to get the preliminary injunction. If both parties are likely to suffer the same amount of irreparable harm, so far as" }, { "docid": "18553464", "title": "", "text": "593, 601-02. Even so, this would appear to permit the granting of a preliminary injunction which would be against the public interest when the balance of harms favors the plaintiff to a greater degree than the injunction would harm the public interest. Nonetheless, appearances are deceiving. American Hospital’s author, who also wrote the thoughtful and exhaustive opinion in Roland Machinery, made it clear that the algebraic formula “is not offered as a new legal standard.” American Hospital, at 593. In our most recent opinion, which thoroughly considered the district court's discretion in deciding whether to grant a preliminary injunction and our deferential review of the district judge’s discretionary decision, we noted that American Hospital does not set forth a new standard for granting preliminary injunctions. See Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433-1436 (7th Cir.1986). American Hospital's formula \"is actually just a distillation of the familiar ... test that courts use in deciding whether to grant a preliminary injunction.” American Hospital, at 593. As a distillation, the formula admirably reflects the balancing of irreparable harms inherent in the traditional test. However, a formula, of necessity, cannot incorporate all of the elements of the traditional test. We note, therefore, that before the district court balances the irreparable harms suffered by the parties, the plaintiff still must establish the other prerequisites to the issuance of a preliminary injunction —namely, that the plaintiff has no adequate remedy at law; that it has a reasonable likelihood of prevailing on the merits; and that an injunction would not harm the public interest. . Our standard of review of the grant of a preliminary injunction is whether the district court abused its discretion. See Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-39 (7th Cir.1986). Whether the plaintiff can demonstrate a reasonable likelihood of prevailing on the merits, however, often requires determination of a question of law. In this case, Brunswick’s likelihood of success on the merits depends upon the legality of the restrictive covenant under Wisconsin law. As is the case for all questions of law, we will review de novo" }, { "docid": "18553463", "title": "", "text": "success on the merits. Such a difference would become important when the plaintiff possessed an extremely low likelihood of winning at trial, but would suffer a very large irreparable harm if an injunction were denied, and the defendant would suffer a relatively small irreparable harm if the injunction were granted. Under the traditional test, an injunction would not issue because the plaintiff could not show a sufficient likelihood of success on the merits; however, it might appear that, according to American Hospital's balancing formula, the injunction would issue because the balance of harms, discounted by the probabilities that they would be mistakenly incurred, would favor the plaintiff. Third, whereas the traditional test requires that the balance of harms favors the plaintiff and that the injunction not harm the public interest, it might seem that American Hospital's algebraic formula alone does not require that the injunction be in the public interest. It was suggested that the harms suffered by third parties can be added to Hp and Hd as the case may be. American Hospital, at 593, 601-02. Even so, this would appear to permit the granting of a preliminary injunction which would be against the public interest when the balance of harms favors the plaintiff to a greater degree than the injunction would harm the public interest. Nonetheless, appearances are deceiving. American Hospital’s author, who also wrote the thoughtful and exhaustive opinion in Roland Machinery, made it clear that the algebraic formula “is not offered as a new legal standard.” American Hospital, at 593. In our most recent opinion, which thoroughly considered the district court's discretion in deciding whether to grant a preliminary injunction and our deferential review of the district judge’s discretionary decision, we noted that American Hospital does not set forth a new standard for granting preliminary injunctions. See Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433-1436 (7th Cir.1986). American Hospital's formula \"is actually just a distillation of the familiar ... test that courts use in deciding whether to grant a preliminary injunction.” American Hospital, at 593. As a distillation, the formula admirably reflects the balancing" }, { "docid": "6031554", "title": "", "text": "(3) an inadequate remedy at law. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States of America, Inc., 549 F.3d 1079, 1086 (7th Cir.2008). If the moving party fails to demonstrate any one of these three threshold requirements, the emergency relief must be denied. Id. However, if these threshold conditions are met, the Court must then assess the balance of harm — the harm to Plaintiffs if the injunction is not issued against the harm to Defendant if it is issued — and, where appropriate, also determine what effect the granting or denying of the injunction would have on nonparties (the public interest). Id. In determining whether to grant injunctive relief, the district court must take into account all four of these factors and then “exercise its discretion ‘to arrive at a decision based on the subjective evaluation of the import of the various factors and a personal, intuitive sense about the nature of the case.’ ” Id. (quoting Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436 (7th Cir.1986)). This process involves engaging in what is called the “sliding scale” approach, meaning that “the more likely it is the plaintiff will succeed on the merits, the less balance of irreparable harms need weigh toward its side; the less likely it is the plaintiff will succeed, the more the balance need weigh towards its side.” Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir.1992). The sliding scale approach “is not mathematical in nature, rather ‘it is more properly characterized as subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief.’” Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895-96 (7th Cir.2001) (quoting Abbott Laboratories, 971 F.2d at 12). II. Discussion A. The Likelihood of Success on the Merits: 1. Private Cause of Action Defendants first contend that Plaintiffs do not have a likelihood of succeeding on the merits of their federal claims because Title IV-E does not create rights enforceable under 42 U.S.C. § 1983, foreclosing any private right of action. Plaintiffs do" }, { "docid": "18553465", "title": "", "text": "of irreparable harms inherent in the traditional test. However, a formula, of necessity, cannot incorporate all of the elements of the traditional test. We note, therefore, that before the district court balances the irreparable harms suffered by the parties, the plaintiff still must establish the other prerequisites to the issuance of a preliminary injunction —namely, that the plaintiff has no adequate remedy at law; that it has a reasonable likelihood of prevailing on the merits; and that an injunction would not harm the public interest. . Our standard of review of the grant of a preliminary injunction is whether the district court abused its discretion. See Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-39 (7th Cir.1986). Whether the plaintiff can demonstrate a reasonable likelihood of prevailing on the merits, however, often requires determination of a question of law. In this case, Brunswick’s likelihood of success on the merits depends upon the legality of the restrictive covenant under Wisconsin law. As is the case for all questions of law, we will review de novo the validity of the restrictive covenant. Because an error of law by the district court constitutes an abuse of discretion, see American Can Co. v. Mansukhani, 742 F.2d 314, 326 (7th Cir.1984), should we find that the district court made a mistaken legal determination when assessing the plaintiffs likelihood of success on the merits, we will independently review the district judge’s legal conclusions upon which the preliminary injunction was based. See Shango v. Jurich, 681 F.2d 1091, 1097 (7th Cir.1982). . As an unincorporated division, the citizenship of Mercury Marine is that of the corporation of which it is a part. See Wisconsin Knife Works v. National Metal Crofters, 781 F.2d 1280, 1282 (7th Cir.1986). Brunswick is a Delaware corporation and has its principal place of business in Illinois. Jones is a citizen of Wisconsin. Thus, complete diversity exists. Both parties have argued that Wisconsin law governs. Because the contract was performed within Wisconsin, we see no reason to disturb this stipulation. See Prudential Insurance Co. of America v. Sipula, 776 F.2d 157, 161 (7th" }, { "docid": "567637", "title": "", "text": "386-87 (7th Cir.1984); see also Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir.1986). If the movant can meet this threshold burden, the in quiry then becomes a “sliding scale” analysis of the harm to the parties and the public from the grant or denial of the injunction and the actual likelihood of success on the merits. Ping v. National Educ. Ass’n, 870 F.2d 1369, 1371 (7th Cir.1989) (emphasis in original). The standard that we apply to review the district court’s determination is “tailored to the various functions that the district court must perform in fulfillment of its responsibilities.” Thornton v. Barnes, 890 F.2d 1380, 1384 (7th Cir.1989). This court summarized this review as follows: [T]he preliminary injunction decision involves the resolution of a number of different issues, some of which are non-discretionary; others, like the final weighing and balancing of the equities, are classically left to the discretion of the district judge. Appellate review therefore must vary with the nature of the lower court decision. When a court of appeals considers a preliminary injunction order, which should set forth the judge’s reasoning under Fed.R.Civ.P. 65(d), the factual determinations are reviewed under a clearly erroneous standard and the necessary legal conclusions are given de novo review. SEC v. Suter, 732 F.2d 1294, 1300 (7th Cir.1984); E. Remy Martin & Co. v. Shaw-Ross International Imports, 756 F.2d 1525, 1529 (11th Cir.1985). However, the ultimate evaluation and balancing of the equitable factors is a highly discretionary decision and one to which this court must give substantial deference. The variance in the standard of review expressed in Roland may, in part, be attributed to the existence of errors of law or fact. Clearly, a factual or legal error may alone be sufficient to establish that the court “abused its discretion” in making its final determination. Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir.1986); see also Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1014 (7th Cir.1990) (factual determinations reviewed on abuse of discretion standard). Based on these standards, “ ‘ “our review is limited to determining" }, { "docid": "17875220", "title": "", "text": "may still be entitled to the injunction if the irreparable harm to him from a denial would greatly exceed the irreparable harm to the defendant from a grant. The quoted language makes clear that the district judge did not think this such a case, and implies that she thought it a case where the irreparable harms were (as before) approximately equal. It is true that elsewhere she describes the irreparable harm to Dynamics as “slight.” Id. at 1182. But she never says the irreparable harm to CTS would be great. And her statement that the harm to Dynamics would be slight appears to have been based on her expectation that Dynamics would win the proxy fight (then two weeks away) — in which event, controlling the board as it would, it could waive the poison pill at will. In fact Dynamics lost the proxy fight, and the balance of harms is therefore as before. In any event, the ground on which the district judge denied the preliminary injunction had nothing to do with the balance of harms; it was simply that she thought Dynamics unlikely to prevail at trial — unlikely, that is, to succeed in invalidating the second poison pill. The scope of appellate review of a decision granting or denying a preliminary injunction depends on the ground of that decision. If it is based on a purely factual determination, we can reverse only if the determination is clearly erroneous; if on a purely legal determination, we can reverse if our view of the law is different from the district court’s, for review of legal determinations is plenary. But if the decision is based on the balance of harms, or on that balance together with the likelihood of success on the merits (the likelihood operating to weight the balance in favor of plaintiff or defendant in accordance with the sliding scale approach), we can reverse only if persuaded that the district court abused its discretion, that is, was not merely incorrect but unreasonable. See, e.g., Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-39 (7th Cir.1986); Roland Machinery" }, { "docid": "17875222", "title": "", "text": "Co. v. Dresser Industries, Inc., 749 F.2d 380, 388-92 (7th Cir.1984). Where the balance of harms is equal and therefore drops out of the analysis — where the only issue is the plaintiff’s likelihood of winning when the case is tried — the scope of appellate review is similar to that of final judgments. The two opinions the district judge wrote in connection with Dynamics’ request for a preliminary injunction against the second poison pill contain a mixture of factual and legal determinations all feeding into her ultimate determination regarding the lawfulness of the pill. That determination is more tentative than if the case had been tried, because it is based on a less complete development of evidence than possible in a regular trial, but its ingredients are the same and — with issues of irreparable harm cancelled out — is a matter of finding facts and applying law, not of exercising discretion. In reviewing the decision, therefore, we must examine the procedures leading up to the adoption of the second poison pill and the terms of the pill, and, accepting all of the district judge’s findings of fact that are not clearly erroneous, we must determine whether she was justified in concluding that the infirmities that had led her and us to invalidate the first poison pill have been cured. Of course, if we cannot determine from the judge’s findings and conclusions, read against the record of the case, whether her findings of fact are clearly erroneous, then we must remand for further analysis; and this, as we shall see in due course, is the case here. The second poison pill was adopted in different circumstances and has different provisions from the first. The second was devised by the outside directors (constituted as a special committee) in consultation with the company’s investment advisor, Smith Barney. The district court found that unlike the board the first time around, the special committee did not start with the preconceived idea of preventing a takeover of CTS whether by Dynamics or any other person or firm that might make a tender offer; that" }, { "docid": "567636", "title": "", "text": "the scene, however, because of the way the prints are taken such use here is problematic. Further, the evidence does not reflect that this has ever happened in Wilmette. We conclude that the village fingerprint requirement at best only slightly serves some kind of a government interest, that it has the effect of chilling proper solicitation, and in fact is used by Wilmette for that very purpose. Id. at 7. II ANALYSIS A. The Applicable Standards 1. The standards that apply to a grant of a preliminary injunction are well established. Initially, the district court must consider a number of factors in deciding whether to grant a preliminary injunction: Before a preliminary injunction will issue, the movant must show, as a threshold matter, that: (1) they have no adequate remedy at law; (2) they will suffer irreparable harm if the injunction is not granted; and (3) they have some likelihood of success on the merits in the sense that their “chances are better than negligible.” Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386-87 (7th Cir.1984); see also Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir.1986). If the movant can meet this threshold burden, the in quiry then becomes a “sliding scale” analysis of the harm to the parties and the public from the grant or denial of the injunction and the actual likelihood of success on the merits. Ping v. National Educ. Ass’n, 870 F.2d 1369, 1371 (7th Cir.1989) (emphasis in original). The standard that we apply to review the district court’s determination is “tailored to the various functions that the district court must perform in fulfillment of its responsibilities.” Thornton v. Barnes, 890 F.2d 1380, 1384 (7th Cir.1989). This court summarized this review as follows: [T]he preliminary injunction decision involves the resolution of a number of different issues, some of which are non-discretionary; others, like the final weighing and balancing of the equities, are classically left to the discretion of the district judge. Appellate review therefore must vary with the nature of the lower court decision. When a court of appeals considers" }, { "docid": "22923867", "title": "", "text": "trial court’s grant (or denial) of a preliminary injunction is limited to the question of whether the court abused its discretion in granting the requested relief. Curtis v. Thompson, 840 F.2d 1291, 1296 (7th Cir.1988); Roland Machinery Company v. Dresser Industries, Inc., 749 F.2d 380, 384-85, 388-91 (7th Cir.1984); Hyatt Corp. v. Hyatt Legal Services, 736 F.2d 1153, 1156 (7th Cir.), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 361 (1984). As we discussed in Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-38 (7th Cir.1986), our analysis of whether the trial judge abused his discretion entails the application of “mixed” standards: factual determinations are reviewed under the “clearly erroneous” standard, while legal conclusions are reviewed de novo. 782 F.2d at 1437. “But the ultimate weighing and balancing that makes up the decision whether to issue a preliminary injunction is highly discretionary [and is] given substantial deference. ... Thus our review is limited to determining ‘whether the judge exceeded the bounds of permissible choice in the circumstances, not what we would have done if we had been in his shoes.’ ” A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d 903, 906 (7th Cir.1986) (quoting Roland Machinery, 749 F.2d at 390). In establishing its entitlement to a preliminary injunction, the IKC bears the burden of demonstrating: “(1) that it has no adequate remedy at law; (2) that it will suffer irreparable harm if the preliminary injunction is not issued; (3) that the irreparable harm it will suffer if the preliminary injunction is not granted is greater than the irreparable harm the defendant will suffer if the injunction is granted; (4) that it has a reasonable likelihood of prevailing on the merits; and (5) that the injunction will not harm the public interest.” Brunswick Corp. v. Jones, 784 F.2d 271, 273-74 (7th Cir.1986). We review the district court’s analysis of these factors for factual and legal error and rule on the propriety of the court’s grant of the injunction in light of the standard of review set forth. A. Likelihood of success on the merits In order to" }, { "docid": "17875215", "title": "", "text": "reconsideration following issuance of our opinion affirming the preliminary injunction against the first poison pill, 638 F.Supp. 802 (N.D.Ill.1986). Dynamics has appealed. The election for the board of directors was held on May 16. CTS’s board, which had campaigned on a platform of selling the company and had represented that the second poison pill was designed to maximize the price at which the company would be sold, won reelection by a narrow margin. As noted in our previous opinion, citing earlier decisions of this court, “the task for a district judge asked to grant a preliminary injunction is to compare the irrepara ble harm to the plaintiff if the injunction is denied, weighted by the likelihood that the denial would be erroneous because the plaintiff will prevail in the plenary trial, with the irreparable harm to the defendant if the injunction is granted, weighted by the likelihood that the grant would be erroneous because the defendant, not the plaintiff, will prevail in the trial.” 794 F.2d at 252. This “sliding scale” approach implies that if, so far as it is possible to determine, the irreparable harm that the plaintiff is likely to suffer from denial of the preliminary injunction is equal to that which the defendant is likely to suffer if the injunction is granted, likelihood of success on the merits becomes decisive, and the question is simply: who is likelier to win the case when and if it is tried on the merits — the plaintiff or the defendant? Id. Our previous opinion noted that the irreparable harms from granting or denying the preliminary injunction appeared to be in equipoise in this case, so that analysis would have to focus on the likelihood that Dynamics would prevail on the merits if its suit to invalidate the poison pill was tried. After pointing out that the controlling law was that of Indiana and that in matters of corporation law the Indiana courts normally take their cue from the Delaware courts, which are more experienced in such matters, we observed that while the board of directors of a corporation that is" }, { "docid": "12104902", "title": "", "text": "of fact and conclusions of law in support of its decision to grant or refuse preliminary injunctive relief. The ultimate decision, however, rests within the court’s discretion. Baja Contractors, 830 F.2d at 674; Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-37 (7th Cir.1986). The district court’s findings of fact are reviewed under the clearly erroneous standard of Fed.R.Civ.P. 52(a); with the legal conclusions subject to de novo review. Baja Contractors, 830 F.2d at 674; Manbourne, Inc. v. Conrad, 796 F.2d 884, 887 (7th Cir.1986); Lawson Products, 782 F.2d at 1437. “[A] factual or legal error may alone be sufficient to establish that the court ‘abused its discretion’ in making its final determination.... However, in the absence of such an error, the district judge’s weighing and balancing of the equities should be disturbed on appeal only in the rarest of cases.” Lawson Products, 782 F.2d at 1437. We review the district court’s denial of a preliminary injunction in the present case with these principles in mind. II. Discussion West Allis, as the party seeking a preliminary injunction, bears the burden of showing: (1) that it has no adequate remedy at law; (2) that it will suffer irreparable harm if the preliminary injunction is not issued; (3) that the irreparable harm it will suffer if the preliminary injunction is not granted outweighs the irreparable harm the defendant will suffer if the injunction is granted; (4) that it has a reasonable likelihood of prevailing on the merits; and (5) that the injunction will not harm the public interest. Baja Contractors, 830 F.2d at 675; Manbourne, Inc., 796 F.2d at 887; Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386-88 (7th Cir.1984). Under the “sliding scale” approach adopted by this circuit, the likelihood of success that West Allis needs to show will vary inversely with the degree of harm it will suffer if the injunction is not granted. Illinois Psychological Ass’n v. Falk, 818 F.2d 1337, 1340 (7th Cir.1987); Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir.1986); Roland Machinery Co., 749 F.2d at 387. If, however, “both parties" }, { "docid": "17875221", "title": "", "text": "of harms; it was simply that she thought Dynamics unlikely to prevail at trial — unlikely, that is, to succeed in invalidating the second poison pill. The scope of appellate review of a decision granting or denying a preliminary injunction depends on the ground of that decision. If it is based on a purely factual determination, we can reverse only if the determination is clearly erroneous; if on a purely legal determination, we can reverse if our view of the law is different from the district court’s, for review of legal determinations is plenary. But if the decision is based on the balance of harms, or on that balance together with the likelihood of success on the merits (the likelihood operating to weight the balance in favor of plaintiff or defendant in accordance with the sliding scale approach), we can reverse only if persuaded that the district court abused its discretion, that is, was not merely incorrect but unreasonable. See, e.g., Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-39 (7th Cir.1986); Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 388-92 (7th Cir.1984). Where the balance of harms is equal and therefore drops out of the analysis — where the only issue is the plaintiff’s likelihood of winning when the case is tried — the scope of appellate review is similar to that of final judgments. The two opinions the district judge wrote in connection with Dynamics’ request for a preliminary injunction against the second poison pill contain a mixture of factual and legal determinations all feeding into her ultimate determination regarding the lawfulness of the pill. That determination is more tentative than if the case had been tried, because it is based on a less complete development of evidence than possible in a regular trial, but its ingredients are the same and — with issues of irreparable harm cancelled out — is a matter of finding facts and applying law, not of exercising discretion. In reviewing the decision, therefore, we must examine the procedures leading up to the adoption of the second poison pill and the" }, { "docid": "18749595", "title": "", "text": "the other criteria for preliminary injunctive relief, the court held that money damages could adequately compensate the plaintiffs for their alleged lack of privacy. Moreover, held the court, the “balance of harms” tips strongly in favor of the defendant. If the injunction were granted, it is likely that “some child abuse would go undetected and some innocent lives unprotected.” This harm, concluded the district court, is much greater than the loss of privacy in cases where application of the hot-line criteria produces a false alarm. C. Standard of Review In reviewing the decision of a district court to grant or deny a preliminary injunction, this court has continued to invoke the phrase “abuse of discretion” in articulating the applicable standard. Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1438 (7th Cir.1986). However, we have also acknowledged that “the term ‘discretion’ has been sapped of its vitality through over-use and misuse,” id. at 1436, and, in the context of the preliminary injunction action, can only be understood by reference to the precise task before the district judge when he considers such a motion. Therefore, to properly understand our role on review, we must carefully analyze the process employed by the district court. As we noted in Lawson Products, 782 F.2d at 1436, the district judge, in considering a motion for preliminary injunction, must take a number of non-discretionary actions: (1) He must evaluate the traditional factors enumerated in the case law: whether there is an adequate remedy at law, a danger of irreparable harm, some likelihood of success on the merits. See Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386-88 (7th Cir.1984). (2) He must make factual determinations on the basis of a fair interpretation of the evidence before the court. (3) He must draw legal conclusions in accord with a principled application of the law. “Once all the equitable factors are before the judge, however, a classic discretionary decision must be made involving how much weight to give individual components of the calculus and to what direction the balance of equity tips.” Lawson Products, 782 F.2d" }, { "docid": "23429434", "title": "", "text": "to describe the taste of its soda. Vess also argues that the $60,000 bond required of Canfield is inadequate. We affirm. I. STANDARD OF REVIEW Appellate review of preliminary injunction grants has been recently explained by this Court, see Lawson Products Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-1438 (7th Cir.1986); American Hosp. Supply v. Hospital Products Ltd., 780 F.2d 589 (7th Cir.1986). The standard of review is extremely deferential, typically stated as abuse of discretion. Roland Machinery Corp. v. Dresser Indus., Inc., 749 F.2d 380, 384-385, 388-391 (7th Cir.1984). As was discussed in Lawson, the review of a grant of preliminary injunction is mixed. Factual determinations are reviewed under a clearly erroneous standard; legal conclusions are reviewed de novo. 782 F.2d at 1437. But the ultimate weighing and balancing that makes up the decision whether to issue a preliminary injunction is highly discretionary given substantial deference. Id. Thus our review is limited to determining “whether the judge exceeded the bounds of permissible choice in the circumstances, not what we would have done if we had been in his shoes.” 749 F.2d at 390. The district court must evaluate the case under a well-delineated four-part test; we will review that court’s analysis under that test for factual and legal error. See Roland, 749 F.2d at 388-391; Lawson, 782 F.2d at 1437; Brunswick Corp. v. Jones, 784 F.2d 271, 274 n. 2 (7th Cir.1986). Before granting a preliminary injunction the district court must have evidence before it through which the plaintiff has demonstrated the following: (1) no adequate remedy at law and irreparable harm; (2) “some” likelihood of success on the merits; (3) the balance of relative harms weighs in its favor; and (4) the public interest will not be disserved if the injunction issues. Roland, 749 F.2d at 386-388. II. LIKELIHOOD OF SUCCESS In order to prevail on the merits in an action under Section 43(a) of the Lanham Act, a plaintiff must show a valid trademark and a likelihood of confusion on the part of the public. The district court found that Canfield had demonstrated a “substantial” likelihood of" } ]

[ { "docid": "22698268", "title": "", "text": "of her benefits. Her complaint alleged that these regulations violated § 402 (a) (7) of the Social Security Act, 42 U. S. C. § 602 (a)(7), and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. The complaint further alleged that relief was authorized by 42 U. S. C. § 1983 and invoked federal jurisdiction under 28 U. S. C. § 1343. A few months after the action was commenced, while discovery was underway, petitioner amended the AFDC regulations to authorize a deduction for all reasonable work-related expenses. After an interval of almost a year and a half, respondent filed an amended complaint alleging that actual expenses in excess of certain standard allowances were still being routinely disallowed. Thereafter, a settlement was negotiated and the District Court entered a consent decree that, among other things, provided for a substantial increase in the standard allowances and gave AFDC recipients the right to prove that their actual work-related expenses were in excess of the standard. The parties informally agreed that the question whether respondent was entitled to recover attorney’s fees would be submitted to the District Court after the entry of the consent decree. Following an adversary hearing, the District Court awarded respondent’s counsel a fee of $3,012.19. 455 F. Supp. 1344 (1978). The court held that respondent was the “prevailing party” within the meaning of § 1988 because, while not prevailing “in every particular,” she had won “substantially all of the relief originally sought in her complaint” in the consent decree. Id., at 1347. The court also rejected petitioner’s argument that an award of fees against him was barred by the Eleventh Amendment in the absence of a judicial determination that respondent’s constitutional rights had been violated. Relying on the basic policy against deciding constitutional claims unnecessarily, the court held that respondent was entitled to fees under the Act because, in addition to her statutory claim, she had alleged constitutional claims that were sufficiently substantial to support federal jurisdiction under the reasoning of Hagans v. Lavine, 415 U. S. 528. The Court of Appeals" } ]

[ { "docid": "8068139", "title": "", "text": "functional equivalent of a consent decree, constituting the necessary judicially-sanctioned change in the legal relationship between the parties to satisfy Buckhannon, id. at 1278-79, and concluded that it was because it was incorporated by reference into a court order in which the court retained jurisdiction to enforce its terms. Id. The court today properly begins by addressing whether Buckhannon’s reasoning applies to attorney’s fees suits under FOIA, but gives short shrift to Buckhan-non’s reasoning and glosses over whether the relief obtained by OCAW was compelled by the district court. Although the court uses language that would suggest that Buckhannon is a bar to attorney’s fees regardless of the nature of the judicial action short of a final judgment or a consent decree, see Opinion at 457, Buckhan-non and the decisions interpreting it make clear that there is no principled basis for this suggestion. What is key under Buck-hannon is whether the particular relief obtained results in a material change in the legal relationship of the parties that bears the necessary judicial imprimatur. The court’s failure to come to grips with Buckhannon’s holding and rationale is only possible because of the second problem in the court’s opinion. II. Buckhannon indicates that to be a “prevailing party” one must obtain a change in the legal relationship of the parties that bears the necessary judicial imprimatur and cited as examples a judgment on the merits or a court-ordered consent decree. Buckhannon, 532 U.S. at 605, 121 S.Ct. at 1840-41; see also id. at 622, 121 S.Ct. at 1849-50 (Scalia, J., concurring). Because the question put to this court under Buck-hannon is whether OCAW obtained a change in the legal relationship with the government that bears the necessary judicial imprimatur, the court’s failure to address the district court’s orders in the record with any particularity is inexplicable. OCAW, which is the appellee, pointed out during oral argument in response to the government’s argument that the district court did not grant OCAW any of its requested relief, that the final resolution “did not emerge out of thin air” but resulted because on August 23, 1999" }, { "docid": "8068117", "title": "", "text": "dismissal, but this was merely a formality. An “action may be dismissed ... without order of the court ... by filing a stipulation of dismissal signed by” all of the parties. See Fed.R.Civ.P. 41(a)(1). The union claims that since the court signed the order, it is a “court-ordered consent decree[ ].” Buckhannon, 532 U.S. at 604, 121 S.Ct. at 1840. By this term, the Supreme Court meant “a court ‘ordered changfe] [in] the legal relationship between [the plaintiff] and the defendant.’ ” Id. (quoting Tex. State Teachers Ass’n, 489 U.S. at 792, 109 S.Ct. at 1493-94); see also Smyth, 282 F.3d at 278-82 & n. 11 (discussing the meaning of a “consent decree” in the Buckhannon context). The Court distinguished private settlements, which do not create a “ ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney’s fees.” Buckhannon, 532 U.S. at 604 & n. 7, 121 S.Ct. at 1840 n. 7 (quoting Tex. State Teachers Ass’n, 489 U.S. at 792-93, 109 S.Ct. at 1493). The discussion in Buck-hannon also makes clear that there must be some sort of “judicial relief’ in favor of the party seeking an award of fees. See 532 U.S. at 606, 607 n. 9, 121 S.Ct. at 1841, 1842 n. 9; id. at 622, 121 S.Ct. at 1849-50 (Scalia, J., concurring). The December 10 Stipulation and Order of Dismissal did not meaningfully alter the legal relationship of the parties. Its only effect was to dismiss the union’s lawsuit with a court order when no court order was needed. That cannot represent “judicial relief’ for the union. Aside from the union’s attorney fee request, there was nothing left for the district court to oversee. This contrasts with the consent decree in Maher v. Gagne, 448 U.S. 122, 126, 100 S.Ct. 2570, 2573, 65 L.Ed.2d 653 (1980), which increased AFDC allowances and gave recipients the right to prove that their individual expenses exceeded the standard levels. The decree in Maher constituted “judicial relief’ that “materially altered” the rights of the parties: for example, it estopped the government from refusing to" }, { "docid": "8068119", "title": "", "text": "disburse benefits in excess of the standard level to an individual who demonstrated the requisite personal expense level. Had the December 10 stipulation between the union and the Energy Department outlined documents the government still needed to disclose to the union, matters might be different. But the parties stipulated that the union had received enough information to forego continuation of its lawsuit. Our dissenting colleague thinks that the district court’s endorsement of the August 23, 1999, stipulation qualifies as a “settlement agreement enforced through a consent decree.” Buckhannon, 532 U.S. at 604, 121 S.Ct. at 1840. The union’s brief never made this argument. It argued instead that the court’s denial of the Energy Department’s motion to dismiss changed the legal relationship of the parties. Neither the union’s argument, nor the dissent’s attempt to salvage the union’s case, are correct. Surviving a motion to dismiss does not alter the legal relationship between parties. See Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 1989-90, 64 L.Ed.2d 670 (1980). The dissent’s focus on the August 23, 1999, stipulation ignores the interim nature of that order, which is properly viewed as a procedural ruling that cannot serve as the basis for a determination that the union prevailed. See id. at 759, 100 S.Ct. at 1990. The only part of the order which arguably changed the legal status of the parties was the requirement that the Energy Department complete its record review in 60 days. Before August 23, the court had not ordered the Energy Department to turn over any documents; after August 23, the Energy Department still had no obligation to do so. Both before and after August 23 the district court did not disallow any of the Energy Department’s justifications for exempting documents, or portions of documents, from disclosure. This is not judicial relief on the merits of the union’s complaint. Contrast Maher, 448 U.S. at 126, 100 S.Ct. at 2573 (settlement agreement required government to pay higher AFDC benefits to plaintiffs). The dissent theorizes that the August order prompted the Department to turn over enough information so that by December" }, { "docid": "22258184", "title": "", "text": "(adopting dissenting opinion of Wilkinson, J., 6 F.3d 160, 168-72) (rejecting catalyzation of post-litigation changes in a defendant's conduct as a basis for prevailing party status), do not survive Buckhannon's rejection of private settlements as a basis for prevailing party status, Buckhannon, 121 S.Ct. at 1840. Buckhannon's reasoning indicates that without a “judicially sanctioned change in the legal relationship of the parties,” a party has not prevailed. Id. . Although a district court’s incorporation of an agreement’s terms or retention of jurisdiction in its order may demonstrate the degree of approval and oversight identified by the Supreme Court in Buckhannon as accompanying consent decrees, approval and oversight of an agreement alone will not suffice to make a party a prevailing party. The party must likewise demonstrate that it has received some of the relief it sought in bringing the lawsuit in the first place. See, e.g., Maher v. Gagne, 448 U.S. 122, 126, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980) (upholding award of attorney's fees where consent decree increased level, for purposes of AFDC benefits calculation, of work-related expenses deductible from income and gave AFDC recipients right to prove that actual expenses exceeded standard deduction where plaintiff had claimed that state regulations denied her credit for work-related expenses in violation of federal law). An agreement that the plaintiff will join a motion to dismiss a lawsuit in return for the defendant's promise not to seek sanctions against the plaintiff, for instance, would not render the plaintiff a prevailing party even if incorporated into an enforceable court order. Because we find the \"settlement” achieved by Smyth and Montgomery insufficient to support prevailing party status, we do not discuss the nature of the \"relief” they achieved thereby. . Some courts have suggested or identified circumstances where a district court might “approve\" a settlement without making an obligation to comply with its terms part of its order dismissing the case. See, e.g., Kokkonen, 511 U.S. at 381, 114 S.Ct. 1673 (\"judge’s mere awareness and approval of the settlement agreement do not suffice to make them part of his order”); In re Phar-Mor Securities" }, { "docid": "11927797", "title": "", "text": "necessary&emdash;there must also be “judicial relief’ on the merits of the plaintiffs claim. Id. at 606, 121 S.Ct. 1835 (emphasis and quotation marks omitted). 2. Buckhannon Applied to FOIA Cases In Oil, Chemical & Atomic Workers International Union v. Department of Energy, 288 F.3d 452 (D.C.Cir.2002) (“OCAW”), we held that Buckhannon applied to FOIA cases: “eligibility for an award of attorney’s fees in a FOIA case should be treated the same as eligibility determinations made under other fee-shifting statutes unless there is some good reason for doing otherwise.” OCAW, 288 F.3d at 455. We found no good reason to treat FOIA differently than the statutes at issue in Buckhannon. Id. at 455-56. Therefore, “in order for plaintiffs in FOIA actions to become eligible for an award of attorney’s fees, they must have been awarded some relief by a court.” Id. at 456-57 (quotations marks and brackets omitted). 3. The Voluntary Release of Documents Versus Court-Ordered Relief Under the Buckhannon standard, an' agency’s voluntary release of documents does not make a plaintiff a “prevailing party” in FOIA litigation, even if the FOIA lawsuit is a catalyst for the voluntary release. In OCAW, a union sought documents under FOIA from the United States Enrichment Corporation and the Department of Energy. Id. at 453. After the Energy Department began reviewing and releasing documents, id. at 457, the trial court approved a “Stipulation and Order” which stated: “In light of defendant’s production of substantial amounts of material responsive to plaintiffs claim for relief in this action, the action is hereby dismissed with prejudice.... ” Id. We determined that the agency’s voluntary release of documents “did not constitute a decision on the merits.” Id. Therefore, there was no judicial relief that would make the union a prevailing party. Id. at 459. Likewise, in Davis, the voluntary release of tapes by the Federal Bureau of Investigation (“FBI”) did not make the plaintiff a prevailing party,, even when the FBI released the tapes because they had been played at trial. 460 F.3d at 105-06. Tn OCAW, however, we noted that if the “stipulation between the union and" }, { "docid": "8068120", "title": "", "text": "1999, stipulation ignores the interim nature of that order, which is properly viewed as a procedural ruling that cannot serve as the basis for a determination that the union prevailed. See id. at 759, 100 S.Ct. at 1990. The only part of the order which arguably changed the legal status of the parties was the requirement that the Energy Department complete its record review in 60 days. Before August 23, the court had not ordered the Energy Department to turn over any documents; after August 23, the Energy Department still had no obligation to do so. Both before and after August 23 the district court did not disallow any of the Energy Department’s justifications for exempting documents, or portions of documents, from disclosure. This is not judicial relief on the merits of the union’s complaint. Contrast Maher, 448 U.S. at 126, 100 S.Ct. at 2573 (settlement agreement required government to pay higher AFDC benefits to plaintiffs). The dissent theorizes that the August order prompted the Department to turn over enough information so that by December the parties could agree to dismiss the case. In other words, filing the lawsuit and receiving some scheduling orders served as a catalyst resulting in the relief the union sought. Even if the dissent’s assessment had any proof behind it (it seems equally plausible that the Energy Department simply lacked the time to review the items), Buckhannon clearly instructs that we are not to analyze “the defendant’s subjective motivations in changing its conduct.” 532 U.S. at 609, 121 S.Ct. at 1843. Instead, we are to look for some form of “judicial relief,” and it is clear that the union received none. Under the rule of Buckhannon, the union therefore was not entitled to attorney’s fees because it did not “substantially prevail.” Reversed. ROGERS, Circuit Judge, dissenting: Today the court decides whether the Supreme Court’s decision in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), applies to suits for attorney’s fees under the Freedom of Information Act (“FOIA”). See" }, { "docid": "9815462", "title": "", "text": "at 603, 121 S.Ct. at 1839, the Court held it did not “include!] a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct,” id. at 600, 121 S.Ct. at 1838. The Court observed that it had never approved an award of attorneys’ fees without formal judicial action. Id. at 606, 121 S.Ct. at 1841. “Private settlements,” the Court noted, “do not entail the judicial approval and oversight involved in consent decrees,” and “federal jurisdiction to enforce a private contractual settlement will often be lacking unless the terms of the agreement are incorporated into the order of dismissal.” Id. at 604 n. 7, 121 S.Ct. at 1840 n. 7. Stating that its precedent “counsel[s] against holding that the term ‘prevailing party’ authorizes an award of attorney’s fees ivithout a corresponding alteration in the legal relationship of the parties,” id. at 605, 121 S.Ct. at 1840, the Court gave short shrift to ambiguous legislative history and to policy arguments unsupported by empirical evidence, “given the clear meaning of ‘prevailing party,’ ” id. at 607-OS, 610, 121 S.Ct. at 1841-42, 1843. This court thus has applied Buckhannon broadly. In Oil, Chemical & Atomic Workers, the court treated the phrase “substantially prevailed” in the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E) (2000), as “synonymous” with “prevailing party,” in denying an award of attorneys’ fees for a settlement agreement. 288 F.3d at 455. The court held that the settlement, in the form of a stipulation and order of dismissal signed by a judge, “did not meaningfully alter the legal relationship of the parties” because “[i]ts only effect was to dismiss the union’s lawsuit with a court order when no court order was needed.” Id. at 458. Therefore, the requestor of fees had not “ ‘been awarded some relief by [a] court,’ either in a judgment on the merits or in a court-ordered consent decree,” and was ineligible for fees. Id. at 457 (quoting Buckhannon, 532 U.S. at" }, { "docid": "10657490", "title": "", "text": "Opinion for the Court filed by Circuit Judge GRIFFITH. GRIFFITH, Circuit Judge. The Bureau of Land Management appeals an award of attorneys’ fees to Judicial Watch, Inc. in an action brought under the Freedom of Information Act. For the reasons set forth below, we reverse the decision of the district court and vacate the fee award. I. In March 2007, Judicial Watch requested records of communications between the Bureau and the Nevada congressional delegation about a transaction involving federal lands. When the Bureau failed to produce the documents, Judicial Watch sought to compel their disclosure in a FOIA suit filed in the district court in September 2007. The Bureau voluntarily turned over thirty-five pages of responsive documents later that month. At Judicial Watch’s request, the Bureau also conducted a supplemental search for additional relevant documents. When that search proved fruitless, Judicial Watch elected not to proceed with its lawsuit. In January 2008, the parties filed a joint stipulation asking the district court to enter a judg ment in favor of the agency. In the stipulation, Judicial Watch reserved the right to request attorneys’ fees. On December 31, 2007, after the Bureau’s disclosure of the requested records but before the filing of the stipulation, the President signed into law the OPEN Government Act of 2007. See Pub.L. No. 110— 175, 121 Stat. 2524 (codified at 5 U.S.C. § 552 (Supp. Ill 2009)) [hereinafter 2007 Act]. Before the 2007 Act took effect, only FOIA plaintiffs who had “ ‘been awarded some relief by [a] court,’ either in a judgment on the merits or in a court-ordered consent decree,” could recover attorneys’ fees. Oil, Chem. & Atomic Workers Int’l Union v. Dep’t of Energy, 288 F.3d 452, 457 (D.C.Cir.2002); see Davis v. DOJ, No. 09-5189, 610 F.3d 750, 2010 WL 2651297 (D.C.Cir. July 6, 2010). The 2007 Act made fee awards permissible not only when the litigation results in “a judicial order, or an enforceable written agreement or consent decree,” 5 U.S.C. § 552(a)(4)(E)(ii)(I) (Supp. Ill 2009), but also when the lawsuit brings about “a voluntary or unilateral change in position by the" }, { "docid": "8068118", "title": "", "text": "Buck-hannon also makes clear that there must be some sort of “judicial relief’ in favor of the party seeking an award of fees. See 532 U.S. at 606, 607 n. 9, 121 S.Ct. at 1841, 1842 n. 9; id. at 622, 121 S.Ct. at 1849-50 (Scalia, J., concurring). The December 10 Stipulation and Order of Dismissal did not meaningfully alter the legal relationship of the parties. Its only effect was to dismiss the union’s lawsuit with a court order when no court order was needed. That cannot represent “judicial relief’ for the union. Aside from the union’s attorney fee request, there was nothing left for the district court to oversee. This contrasts with the consent decree in Maher v. Gagne, 448 U.S. 122, 126, 100 S.Ct. 2570, 2573, 65 L.Ed.2d 653 (1980), which increased AFDC allowances and gave recipients the right to prove that their individual expenses exceeded the standard levels. The decree in Maher constituted “judicial relief’ that “materially altered” the rights of the parties: for example, it estopped the government from refusing to disburse benefits in excess of the standard level to an individual who demonstrated the requisite personal expense level. Had the December 10 stipulation between the union and the Energy Department outlined documents the government still needed to disclose to the union, matters might be different. But the parties stipulated that the union had received enough information to forego continuation of its lawsuit. Our dissenting colleague thinks that the district court’s endorsement of the August 23, 1999, stipulation qualifies as a “settlement agreement enforced through a consent decree.” Buckhannon, 532 U.S. at 604, 121 S.Ct. at 1840. The union’s brief never made this argument. It argued instead that the court’s denial of the Energy Department’s motion to dismiss changed the legal relationship of the parties. Neither the union’s argument, nor the dissent’s attempt to salvage the union’s case, are correct. Surviving a motion to dismiss does not alter the legal relationship between parties. See Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 1989-90, 64 L.Ed.2d 670 (1980). The dissent’s focus on the August 23," }, { "docid": "18148496", "title": "", "text": "achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” Buckhannon, 532 U.S. at 601, 121 S.Ct. 1835. Rather, the Court ruled, for a litigant to be a “prevailing party,” there must have been a “judicially sanctioned change in the legal relationship of the parties.” Id. at 605, 121 S.Ct. 1835. “[E]n-forceable judgments on the merits and court-ordered consent decrees,” the Court said, suffice to create such a change. Id. at 604, 121 S.Ct. 1835. In Oil, Chemical & Atomic Workers International Union v. Department of Energy (OCAW), this circuit extended the holding of Buckhannon to the fee-shifting provision of FOIA. 288 F.3d 452, 454-57 (D.C.Cir.2002). The OCAW court concluded that “the ‘substantially prevail’ language in FOIA [is] the functional equivalent of the ‘prevailing party’ language found in” the statutes interpreted in Buckhannon. Id. at 455-56. It “therefore h[e]ld that in order for plaintiffs in FOIA actions to become eligible for an award of attorney’s fees, they must have ‘been awarded some relief by [a] court,’ either in a judgment on the merits or in a court-ordered consent decree.” Id. at 456-57 (quoting Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835). Edmonds asserts that she satisfied the requirements of Buckhannon and OCAW by obtaining partial summary judgment on the question of expedited review, an order from the district court directing release of nonexempt documents by February 10, 2003, and the actual release of 343 pages that day. She contends that she further prevailed by ultimately obtaining the release of the three additional pages. We review the district court’s contrary determination, which rests on “an interpretation of the statutory terms that define eligibility for an award,” de novo. National Ass’n of Mfrs. v. Department of Labor, 159 F.3d 597, 599 (D.C.Cir.1998). Ill The district court concluded, and the government argues on appeal, that Edmonds was not a prevailing party because “a court order requiring expedited processing does not rise to the level of a ‘material alteration of the legal relationship of the parties necessary to permit an award of attorney’s fees.’ ” Edmonds, 310 F.Supp.2d" }, { "docid": "11927798", "title": "", "text": "FOIA litigation, even if the FOIA lawsuit is a catalyst for the voluntary release. In OCAW, a union sought documents under FOIA from the United States Enrichment Corporation and the Department of Energy. Id. at 453. After the Energy Department began reviewing and releasing documents, id. at 457, the trial court approved a “Stipulation and Order” which stated: “In light of defendant’s production of substantial amounts of material responsive to plaintiffs claim for relief in this action, the action is hereby dismissed with prejudice.... ” Id. We determined that the agency’s voluntary release of documents “did not constitute a decision on the merits.” Id. Therefore, there was no judicial relief that would make the union a prevailing party. Id. at 459. Likewise, in Davis, the voluntary release of tapes by the Federal Bureau of Investigation (“FBI”) did not make the plaintiff a prevailing party,, even when the FBI released the tapes because they had been played at trial. 460 F.3d at 105-06. Tn OCAW, however, we noted that if the “stipulation between the union and the Energy Department outlined documents the government still needed to disclose to the union, matters might be different.” 288 F.3d at 458. We addressed exactly that question in Davy v. C.I.A., 456 F.3d 162 (D.C.Cir.2006). There, the plaintiff and the Central Intelligence Agency (“CIA”) “reached a Joint Stipulation for the production of responsive documents. The district court approved the Joint Stipulation and memorialized it in a court order.... The order provide[d] that the ‘CIA will provide Plaintiff all responsive documents, if any’ ... by certain dates.” 456 F.3d at 164 (quoting order of the District Court). We held that this order “changed the legal relationship between the plaintiff and the defendant.” Id. at 165 (quotation marks and brackets omitted). We further held that “[t]he order ... is functionally a settlement agreement enforced through a consent decree” and, therefore, clearly within the meaning of judicial relief under Buckhannon. Id. at 166. 4. Orders Issued During the Course of Litigation In some cases, the court has been required to determine whether a plaintiff is a prevailing party" }, { "docid": "12805599", "title": "", "text": "theory under which several circuit courts, including ours, see, e.g., Chesapeake Bay Found., Inc. v. Dep’t of Agric., 11 F.3d 211, 216 (D.C.Cir.1993), had held that “a plaintiff is a ‘prevailing party’ if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct,” Buckhannon, 532 U.S. at 601-02, 121 S.Ct. 1835. Instead, the Court held, a plaintiff is a prevailing party only if he has “received a judgment on the merits” or secured' a settlement agreement enforced by a consent decree. Id. at 605, 121 S.Ct. 1835. Thus, a defendant’s “voluntary change in conduct, although perhaps accomplishing what the plaintiffs sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.” Id. (emphasis in original). We first considered whether the Buck-hannon holding applies to the FOIA fee-shifting provision in Oil, Chemical & Atomic Workers International Union v. Department of Energy (OCAW), 288 F.3d 452 (D.C.Cir.2002). Finding that the “ ‘substantially prevail’ language in FOIA [is] the functional equivalent of the ‘prevailing party’ language found in” the statutes Buckhannon interpreted, we applied the Buckhannon interpretation of “prevailing party” to FOIA’s attorney fee provision, holding that “in order for plaintiffs in FOIA actions to become eligible for an award of attorney fees, they must have ‘been awarded some relief by [a] court,’ either in a judgment on the merits or in a court-ordered consent decree.” OCAW, 288 F.3d at 455-57 (quoting Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835); see Union of Needletrades, Indus. & Textile Employees v. INS, 336 F.3d 200, 206 (2d Cir.2003) (same). In OCAW, the OCAW sued the United States Department of Energy to obtain documents it alleged were improperly withheld under FOIA. 288 F.3d at 453. The district court ordered the agency to “complete its record review in 60 days.” Id. at 458. After completing the search, the agency provided the plaintiff with the responsive documents and the parties agreed to dismiss the suit. Id. at 453. The plaintiff then sought attorney fees, arguing that it had “substantially prevailed.” Id. at 453-54. We held that the order" }, { "docid": "8068140", "title": "", "text": "to come to grips with Buckhannon’s holding and rationale is only possible because of the second problem in the court’s opinion. II. Buckhannon indicates that to be a “prevailing party” one must obtain a change in the legal relationship of the parties that bears the necessary judicial imprimatur and cited as examples a judgment on the merits or a court-ordered consent decree. Buckhannon, 532 U.S. at 605, 121 S.Ct. at 1840-41; see also id. at 622, 121 S.Ct. at 1849-50 (Scalia, J., concurring). Because the question put to this court under Buck-hannon is whether OCAW obtained a change in the legal relationship with the government that bears the necessary judicial imprimatur, the court’s failure to address the district court’s orders in the record with any particularity is inexplicable. OCAW, which is the appellee, pointed out during oral argument in response to the government’s argument that the district court did not grant OCAW any of its requested relief, that the final resolution “did not emerge out of thin air” but resulted because on August 23, 1999 “the [district] court ordered ... the defendant ... [to] cause a search to be made ... and release to plaintiffs all records thus retrieved” and thus “the court was intimately involved in approving the settlement.” An examination of the record makes clear that OCAW in fact obtained judicially sanctioned legal relief akin to a consent decree and hence sufficient to meet the Buckhan-non test. Overlooked almost in its entirety is the district court’s August 23, 1999 Stipulation and Order. The court’s recitation of the factual background ignores the August 23 Order. When the court finally refers to the August 23 Order it misrepresents and confuses its contents and mischaracterizes it as a “report.” Opinion at 457. Contrary to the court’s assertion, there is no indication in the August 23 Order that the government had provided “most of the materials” requested by OCAW. Opinion at 457. Although the August 23 Order resulted in the dismissal of OCAW’s requests for some records, the order addressed other documents that the government refused to turn over to OCAW despite" }, { "docid": "8068143", "title": "", "text": "except those records or portions of records determined to merit continued withholding under applicable law....’” Second Joint Report, Nov. 8,1999 (quoting Stipulation & Order, Aug. 23, 1999, at ¶ 2) (emphasis added). The second report of November 8 also indicated that the government had complied with the terms of the August 23 Order. The existence of the August 23 Order directing the government to release documents that OCAW had sought and the government had previously withheld is a judicially sanctioned victory on the merits; the release of withheld documents is the whole point of a FOIA lawsuit. See 5 U.S.C. § 552(a)(4)(B) (2000); Students Against Genocide v. Dep’t of State, 257 F.3d 828, 841 (D.C.Cir.2001). The court recognizes as much when it notes that “[h]ad the December 10 stipulation between [OCAW] and the Energy Department outlined documents the government still needed to disclose to the union, matters might be different.” Opinion at 458-459. But this is precisely what the August 23 Order provided. As a result of the August 23 Order, there is an undeniable change in the legal relationship of the parties: the district court ordered the government to release documents that it previously refused to produce upon OCAW’s request. In addition, the relief obtained by OCAW in the August 23 Order bore the necessary judicial imprimatur: unlike a private settlement or resolution through negotiations by the parties, here, the district court’s order recited the terms of the parties’ negotiations and ultimate agreement so that the August 23 Order had elements of both “judicial approval and oversight involved in consent decrees.” Buckhannon, 532 U.S. at 604 n. 7, 121 S.Ct. at 1840 n. 7. After the August 23 Order, the government was under an enforceable court-ordered legal obligation to release the identified documents, potentially facing a contempt citation for failure to comply. See 5 U.S.C. § 552(a)(4)(G). The August 23 Order is thus a material altera tion of the legal relationship of the parties bearing the necessary judicial imprimatur and hence satisfying Buckhannon. To reach a contrary conclusion the court is forced to rely on factual assertions that are" }, { "docid": "9815463", "title": "", "text": "to ambiguous legislative history and to policy arguments unsupported by empirical evidence, “given the clear meaning of ‘prevailing party,’ ” id. at 607-OS, 610, 121 S.Ct. at 1841-42, 1843. This court thus has applied Buckhannon broadly. In Oil, Chemical & Atomic Workers, the court treated the phrase “substantially prevailed” in the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E) (2000), as “synonymous” with “prevailing party,” in denying an award of attorneys’ fees for a settlement agreement. 288 F.3d at 455. The court held that the settlement, in the form of a stipulation and order of dismissal signed by a judge, “did not meaningfully alter the legal relationship of the parties” because “[i]ts only effect was to dismiss the union’s lawsuit with a court order when no court order was needed.” Id. at 458. Therefore, the requestor of fees had not “ ‘been awarded some relief by [a] court,’ either in a judgment on the merits or in a court-ordered consent decree,” and was ineligible for fees. Id. at 457 (quoting Buckhannon, 532 U.S. at 603, 121 S.Ct. at 1839); see also Thomas v. Nat’l Sci. Found., 330 F.3d 486, 493 (D.C.Cir.2003). While acknowledging that “some good reason” could rebut the presumption that Buck-hannon controlled, the court saw nothing in the statutory text or legislative history to suggest Congress intended FOIA fee awards to be treated differently than those interpreted in Buckhannon. Oil, Chem. & Atomic Workers, 288 F.3d at 455-56. To date, this court has declined to follow Buckhannon only where controlling Supreme Court precedent, which Buckhan-non did not explicitly overrule, interpreted a fee-shifting provision allowing an award of attorneys’ fees “whenever [the court] determines that such award is appropriate,” 42 U.S.C. § 7607(f) (2000), to mean, in light of a clear statement in the legislative history, that Congress intended to authorize attorneys’ fees for “legitimate” lawsuits that “forced defendants to abandon illegal conduct, although without a formal court order.” Sierra Club v. EPA, 322 F.3d 718, 723 (D.C.Cir.2003) (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 686 n. 8, 103 S.Ct. 3274, 3278 n. 8, 77 L.Ed.2d 938" }, { "docid": "8068116", "title": "", "text": "read the joint report as soon as it comes in, and ... I’ll either sign off on what you’ve given me or set up a conference call or an in-court status to resolve things finally.”). On December 10, 1999, the court approved the parties’ final status report as a “Stipulation and Order” stating in its entirety: Subject to the approval of the Court, it is hereby stipulated and agreed as follows by and between the undersigned: 1. In light of defendant’s production of substantial amounts of material responsive to plaintiffs claim for relief in this action, the action is hereby dismissed with prejudice and, except as provided in ¶ 2, without fees or costs. 2. The dismissal of this action shall be without prejudice to the right of plaintiff to obtain in [this case], an award of attorney’s fees and litigation costs covering work performed in this action. This order did not constitute a decision on the merits; the court had no contested issues before it. The “Stipulation and Order” approved the parties’ terms of dismissal, but this was merely a formality. An “action may be dismissed ... without order of the court ... by filing a stipulation of dismissal signed by” all of the parties. See Fed.R.Civ.P. 41(a)(1). The union claims that since the court signed the order, it is a “court-ordered consent decree[ ].” Buckhannon, 532 U.S. at 604, 121 S.Ct. at 1840. By this term, the Supreme Court meant “a court ‘ordered changfe] [in] the legal relationship between [the plaintiff] and the defendant.’ ” Id. (quoting Tex. State Teachers Ass’n, 489 U.S. at 792, 109 S.Ct. at 1493-94); see also Smyth, 282 F.3d at 278-82 & n. 11 (discussing the meaning of a “consent decree” in the Buckhannon context). The Court distinguished private settlements, which do not create a “ ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney’s fees.” Buckhannon, 532 U.S. at 604 & n. 7, 121 S.Ct. at 1840 n. 7 (quoting Tex. State Teachers Ass’n, 489 U.S. at 792-93, 109 S.Ct. at 1493). The discussion in" }, { "docid": "8068103", "title": "", "text": "a “Record Agreement” to the same effect. Several status hearings took place after this order. On December 10, 1999, the parties (the union and the Energy Department) filed a Stipulation and Order of Dismissal stating that the government had provided “substantial amounts of material” and dismissing the claims with prejudice, although reserving the union’s right to seek attorney’s fees. The district court endorsed the stipulation. The parties were unable to resolve the attorney’s fees issue amongst themselves, so the union filed an application for fees with the district court on April 17, 2000. On March 16, 2001, the court ruled that the union was entitled to receive fees, but not in the full amount it sought. (The court stated that the union could recover any Sunshine Act fees in its motion for fees under FOIA, but it also denied the union’s request for fees related to its failed attempt to get injunctive relief halting the USEC board meeting or opening it to the public. The union does not appeal this decision, so our analysis is limited to the request for fees under FOIA.) After the court’s order, the parties stipulated that the proper amount of fees and costs totaled $108,173.25, reserving the Energy Department’s right to appeal. The court ordered the payment of this amount on March 30, 2001. Shortly after the government noted its appeal, the Supreme Court issued its opinion in Buckhannon, holding that attorney’s fees are not authorized under the Fair Housing Amendments Act or Americans with Disabilities Act to a plaintiff who achieves the desired result without a judgment on the merits or a court-ordered consent decree. See 532 U.S. at 600-01, 121 S.Ct. at 1838. II. In order to recover attorney’s fees in a FOIA case, the plaintiff must have “substantially prevailed”: the “court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E). In determining whether plaintiffs are eligible for an award, we have followed the “catalyst theory.” So long as the" }, { "docid": "11927799", "title": "", "text": "the Energy Department outlined documents the government still needed to disclose to the union, matters might be different.” 288 F.3d at 458. We addressed exactly that question in Davy v. C.I.A., 456 F.3d 162 (D.C.Cir.2006). There, the plaintiff and the Central Intelligence Agency (“CIA”) “reached a Joint Stipulation for the production of responsive documents. The district court approved the Joint Stipulation and memorialized it in a court order.... The order provide[d] that the ‘CIA will provide Plaintiff all responsive documents, if any’ ... by certain dates.” 456 F.3d at 164 (quoting order of the District Court). We held that this order “changed the legal relationship between the plaintiff and the defendant.” Id. at 165 (quotation marks and brackets omitted). We further held that “[t]he order ... is functionally a settlement agreement enforced through a consent decree” and, therefore, clearly within the meaning of judicial relief under Buckhannon. Id. at 166. 4. Orders Issued During the Course of Litigation In some cases, the court has been required to determine whether a plaintiff is a prevailing party in a FOIA action when the trial court issues an order in plaintiffs favor during the course of the litigation. Two principal rules guide the disposition of such cases. First, in assessing whether a plaintiff is a prevailing party, “it is of no import” whether an order comes “midway through the proceeding, rather than at its end.” Edmonds, 417 F.3d at 1324. Second, a favorable order does not make a plaintiff a prevailing party unless the order constitutes judicial relief on the merits resulting in a “court-ordered change in the legal relationship between the plaintiff and the defendant.” Buck-hannon, 532 U.S. at 604, 121 S.Ct. 1835 (brackets and quotation marks omitted). In OCAW, the plaintiff was able to defeat a motion to dismiss for lack of jurisdiction. However, that victory was not judicial relief within the meaning of Buck-hannon, because it merely allowed the plaintiff to move forward with the lawsuit; it did not “alter the legal relationship between [the] parties.” OCAW, 288 F.3d at 458. Likewise, an order from the trial court to the" }, { "docid": "1408241", "title": "", "text": "reasoned, a party must secure a judgment on the merits or a settlement agreement that is enforced through a consent decree.”). However, Needletrades, J.C. and Federation of Taxi Drivers were all catalyst theory cases. As such, there was no settlement agreement to be enforced in any of those cases. We therefore did not fully consider the different types of relief that might satisfy the Buckhannon court’s general statement of its holding—that there must be a judicially sanctioned change in the legal relationship of the parties. More significantly, it seems clear from even the majority opinion in Buck-hannon that the Court intended its statements about judgments on the merits and court-ordered consent decrees as merely “examples” of the type of judicial action that could convey prevailing party status. 532 U.S. at 605, 121 S.Ct. 1835 (“We think, however, the ‘catalyst theory’ falls on the other side of the line from these examples.” (emphasis added)). We therefore join the majority of courts to have considered the issue since Buckhannon in concluding that judicial action other than a judgment on the merits or a consent decree can support an award of attorney’s fees, so long as such action carries with it sufficient judicial imprimatur. See Am. Disability Ass’n, Inc. v. Chmielarz, 289 F.3d 1315, 1319 (11th Cir.2002) (“[T]he district court interpreted Buckhannon to stand for the proposition that a plaintiff could be a ‘prevailing party’ only if it achieved one of those two results. That reading of Buckhannon, however, is overly narrow.”); Barrios v. Cal. Interscholastic Fed’n, 277 F.3d 1128, 1134-35 n. 5 (9th Cir.2002) (“While dictum in Buckhannon suggests that a plaintiff ‘prevails’ only when he or she receives a favorable judgment on the merits or enters into a court-supervised consent decree, we are not bound by that dictum ....”); Oil, Chem. & Atomic Workers Int’l Union v. Dep’t of Energy, 288 F.3d 452, 458-59 (D.C.Cir.2002) (holding that parties’ stipulation and order of dismissal did not “meaningfully alter the legal relationship of the parties,” but implying that had there been such a change, Buckhannon would not preclude an award of fees); Smyth" }, { "docid": "8253434", "title": "", "text": "121 S.Ct. 1835 (internal quotation marks omitted). “[I]n order to be considered a ‘prevailing party’ after Buckhannon, a plaintiff must not only achieve some ‘material alteration of the legal relationship of the parties,’ but that change must also be judicially sanctioned.” Roberson v. Giuliani, 346 F.3d 75, 79 (2d Cir.2003) (quoting Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835) (§ 1983 case); see also Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (holding that the same standards are “generally applicable in all cases in which Congress has authorized an award of fees to a ‘prevailing party’ ”). The Buckhannon Court concluded that “enforceable judgments on the merits” and “settlement agreements enforced through a consent decree” constitute sufficient “material alteration[s] of the legal relationship of the parties” to justify attorney’s fee awards. Id. at 604-05, 121 S.Ct. 1835 (internal quotation marks omitted). The Second Circuit has subsequently held that these two forms of relief identified in Buckhannon were merely “examples” rather than the exclusive avenues to achieving prevailing party status. Roberson, 346 F.3d at 80-81. Accordingly, “judicial action other than a judgment on the merits or a consent decree can support an award of attorney’s fees, so long as such action carries with it sufficient judicial imprimatur.” Id. at 81. The Roberson court went on to hold that where the parties reached a private settlement agreement that expressly conditioned its effectiveness on the court’s retaining jurisdiction to enforce the settlement, and where the Stipulation and Order of Discontinuance signed by the court also expressly provided that the court “shall retain jurisdiction over the settlement agreement for enforcement purposes,” the court’s order “gave judicial sanction to a change in the legal relationship of the parties,” and so the plaintiffs were properly considered “prevailing parties” entitled to an award of attorney’s fees. Id. at 83. The court explained that “the district court’s retention of jurisdic tion in this case is not significantly different from a consent decree and entails a level of judicial sanction sufficient to support an award of attorney’s fees.” Id. at 82." } ]

[ { "docid": "22164822", "title": "", "text": "one hand, and claims of vote dilution that challenge impairment of a group’s opportunity to elect representatives of their choice, on the other hand. The majority assumed that the amended §2 would continue to apply to judicial elections with respect to claims in the first category, see ibid., but that the word “representatives” excludes judicial elections from claims in the second category, see id., at 625-628. In the majority’s view, it was “factually false” to characterize judges as representatives because public opinion is “irrelevant to the judge’s role,” id., at 622; “the judiciary serves no representative function whatever: the judge represents no one,” id., at 625. The majority concluded that judicial offices “are not ‘representative’ ones, and their occupants are not representatives.” Id., at 631. Thus, Congress would not have used the word “representatives,” as it did in § 2(b) of the Act, if it intended that subsection to apply to vote dilution claims in judicial elections. The majority also assumed that Congress was familiar with Wells v. Edwards, 347 F. Supp. 453 (MD La. 1972), summarily aff’d, 409 U. S. 1095 (1973), a reapportionment case in which the District Court held that “the concept of one-man, one-vote apportionment does not apply to the judicial branch of the government.” 347 F. Supp., at 454. The express reference in the Senate Report to the fact that the “‘principle that the right to vote is denied or abridged by dilution of voting strength derives from the one-person, one-vote reapportionment case of Reynolds v. Sims, [377 U. S. 533 (1964)],’” LULAC, 914 F. 2d, at 629 (quoting S. Rep. No. 97-417, p. 19 (1982)), persuaded the majority that, in light of the case law holding that judges were not representatives in the context of one-person, one-vote reapportionment cases, see LULAC, 914 F. 2d, at 626 (citing cases), Congress would not have authorized vote dilution claims in judicial elections without making an express, unambiguous statement to that effect. Following the en banc decision in LULAC, the Court of Appeals remanded this litigation to the District Court with directions to dismiss the complaint. 917 F." } ]

[ { "docid": "22786964", "title": "", "text": "the Supreme Court responded to the argument that elected judges are immune from public opinion because they are frequently called upon to ignore or defy popular sentiment, explaining that the state “decided to elect its judges and to compel judicial candidates to vie for popular support just as other political candidates do,” and thus opted to remove judges from the shelter provided by appointment. The Court concluded: If executive officers, such as prosecutors, sheriffs, state attorneys general, and state treasurers, can be considered “representatives” simply because they are chosen by popular election, then the same reasoning should apply to elected judges.... The fundamental tension between the ideal character of the judicial office and the real world of electoral politics cannot be resolved by crediting judges with total indifference to the popular will while simultaneously requiring them to run for elected office_ [I]t seems both reasonable and realistic to characterize the winners as representatives.... Id. at-, 111 S.Ct. at 2366-67 (footnotes omitted). Even if judges are not representatives in the sense that they represent the interests of their constituents, the electorate undoubtedly considers the broad philosophical views of candidates when voting. NCSBE maintains that Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972), aff'd mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973), requires a contrary result. In Wells, the district court rejected a claim based on the one-person, one-vote doctrine applied to the election of Louisiana Supreme Court justices, reasoning that “ ‘[¡Judges do not represent people, they serve people.’ ” Id. at 455 (quoting Buchanan v. Rhodes, 249 F.Supp. 860, 865 (N.D.Ohio 1960), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966)). Vote dilution and one-person, one-vote claims are distinct, and therefore Wells does not mandate a dismissal of a claim based on vote dilution. See Voter Info. Project, Inc. v. City of Baton Rouge, 612 F.2d 208, 210-12 (5th Cir.1980) (recognizing distinction between claims grounded in one-person, one-vote and vote dilution in Rule 12(b)(6) challenge to an at-large method of electing state and city judges). B. Having rejected NCSBE’s contention that the Equal Protection Clause" }, { "docid": "3440059", "title": "", "text": "simply had not yet come up. Furthermore, the statutory language cannot be parsed to read that judicial elections are not subject to dilution claims, but are subject to the remaining strictures of Section 2. This is so even if representative is found to mean elected members of the legislative and executive branches but not the judicial branches of state government. Further, concluding that Section 2 does not apply would create the anomaly that Section 5, conceded to reach elected judges, and Section 2 use identical language to define their reach. Section 2 either applies in its entirety or not at all and defendants’ efforts to soften the full force of their extraordinary contention must fail. The second premise — that because the one-person, one-vote principle does not apply to judicial elections, the vote-dilution prohibition does not either — must also fail. The prohibition of geographical discrimination in voting expressed in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), commonly referred to as the one-person, one-vote principle, was held not to apply to the apportionment of state judiciaries in Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972) (3-judge court), aff'd mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973) (three justices, dissenting). It is argued that vote-dilution principles cannot be applied to an elected judiciary because the one-man, one-vote principle does not apply, and without requiring equal apportionment there is no benchmark for concluding that there is vote dilution. This argument rests upon the equating of racial and non-racial acts by the state that deny voting strength. Yet they measure equality on quite different planes. One is facially neutral in the matter of race; indeed compliance may adversely affect black voting power. The other rests on core concerns of the Civil War amendments — submerging of minority voting strength by the combined force of election methods and bigotry. In the more concrete terms of this case, that the state has chosen to allot thirty-some judges to Dallas County and only one" }, { "docid": "3440060", "title": "", "text": "506 (1964), commonly referred to as the one-person, one-vote principle, was held not to apply to the apportionment of state judiciaries in Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972) (3-judge court), aff'd mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973) (three justices, dissenting). It is argued that vote-dilution principles cannot be applied to an elected judiciary because the one-man, one-vote principle does not apply, and without requiring equal apportionment there is no benchmark for concluding that there is vote dilution. This argument rests upon the equating of racial and non-racial acts by the state that deny voting strength. Yet they measure equality on quite different planes. One is facially neutral in the matter of race; indeed compliance may adversely affect black voting power. The other rests on core concerns of the Civil War amendments — submerging of minority voting strength by the combined force of election methods and bigotry. In the more concrete terms of this case, that the state has chosen to allot thirty-some judges to Dallas County and only one to another county is not relevant. Submerging votes of protected minorities by a cohesive white majority is relevant. It is perverse now to reason that because the elections of state judges are free of the Reynolds’ command of numerical equality, an elected judiciary is a fortiori free from the racial equality commands of the Civil War Amendments and the Voting Rights Act. It is perverse because even the defenders of the “political thicket” doctrine at all times maintained that the courts must hold to the core values of the Civil War Amendments. For example, Justice Frankfurter, in his famous dissent to the Court’s entry into the political thicket in Baker v. Carr admitted, joined by Justice Harlan, that “explicit and clear constitutional imperatives guided judicial intervention in state government on the issue of black disenfranchisement.” Baker v. Carr, 369 U.S. 186, 285-86, 82 S.Ct. 691, 747-48, 7 L.Ed.2d 663 (1962) (Frankfurter, J., dissenting). The courts have struggled to develop a measure of dilution stemming from the combination of racial voting patterns and state election practices." }, { "docid": "22595134", "title": "", "text": "tens of thousands of voters to party rolls within weeks. Therefore, apportionment on the basis of party registration would be required much more frequently than reapportionment based on population. . Indeed, Wymbs was confused during the proceedings in the district court as to the difference between a one person, one vote standard and a one registered Republican, one vote standard. In his complaint he requested the latter while his prayer for relief requested the former. His motion for summary judgment then requested the latter. . The nomination must go vacant, most likely through death or serious illness, after September 15 of the election year. See Fla.Stat.Ann. § 100.11 l(3)(b) (1982). . We do not decide the issue, but serious doubt can be raised concerning the wisdom of a one registered Republican, one vote standard rather than a one person, one vote standard. This issue, discussed briefly in the text, supra, requires a district court to make decisions it is not well equipped to handle, such as whom the Republican Party represents. See supra notes 30 & 31. See also, Gray v. Sanders, supra note 29, (Supreme Court ordered Georgia primary districts apportioned on basis of population, not party registration). See also supra text accompanying note 36. . One person, one vote does not, for example, apply to the election of state judges, Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972), aff’d mem. 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973); Buchanan v. Rhodes, 249 F.Supp. 860 (N.D.Ohio), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966), or to “special purpose assemblies,” Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 727, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973). The standard also does not apparently apply to state constitutional conventions. Driskell v. Edwards, 374 F.Supp. 1 (W.D.La.) vacated on other grounds, 419 U.S. 812, 95 S.Ct. 26, 42 L.Ed.2d 38; Bates v. Edwards, 294 So.2d 532, 534 (La. 1974); Stander v. Kelley, 433 Pa. 406, 250 A.2d 474 cert. denied sub nom. Lindsay v. Kelley, 395 U.S. 827, 89 S.Ct. 2130, 23 L.Ed.2d" }, { "docid": "21565462", "title": "", "text": "that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. 412 U.S. at 766, 93 S.Ct. at 2339. . The Fifth Circuit found the vote dilution claim in Mobile v. Bolden to be problematic, since no successful dilution claim expressly grounded on section 2 had been made previously. 571 F.2d 238, 243 (5th Cir.1978). This weakens claims that the new section 2 was merely returning to pr e-Bolden standards. . The one-person, one-vote principle mandated by the equal protection clause of the Fourteenth Amendment was held not to apply to the apportionment of state judiciaries in Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972) (3-judge court), aff’d mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973) (three justices, dissenting). Wells was distinguished from cases challenging election practices in Lefkovits v. State Board of Elections, 400 F.Supp. 1005 (N.D.Ill.1975) (3-judge court), aff'd mem., 424 U.S. 901, 96 S.Ct. 1092, 47 L.Ed.2d 306 (1976), where the court stated: [W]hen a judge is to be elected or retained, regardless of the scheme of apportionment, the equal protection clause requires that every qualified elector be given an equal opportunity to vote and have his vote counted. Id. at 1012. This was the precise point made by Solicitor General Fried in his successful argument to the Supreme Court that it should summarily affirm Haith v. Martin. . The changes required to be precleared in Haith had to do with the elections of trial judges. The district court did not reach the merits of any vote dilution claims, for it had no jurisdiction to do so. New voting practices must be submitted to either the Attorney General or the D.C. Circuit for preclearance. Other district courts only have jurisdiction to decide whether a practice is a change requiring pre-clearance. Consequently, the merits of a vote dilution claim with respect to trial judges was not before the Supreme Court. . Some see Section 5 as being the most intrusive aspect of the Voting Rights Act: This so-called \"preclearance” requirement is" }, { "docid": "10044540", "title": "", "text": "an at-large chairperson of a county commission was not covered by section 2 due to that position’s administrative, as opposed to legislative, character. The Dillard court stated, Nowhere in the language of Section 2 nor in the legislative history does Congress condition the applicability of Section 2 on the function performed by an elected official. The language is only and uncompromisingly premised on the fact of nomination or election. Thus, on the face of Section 2 it is irrelevant that the chairperson performs only administrative and executive duties. It is only relevant that Calhoun County has expressed an interest in retaining the post as an electoral position. Once a post is open to the electorate, and if it is shown that the context of that election creates a discriminatory but corrigible election practice, it must be open in a way that allows racial groups to participate equally- Id. at 250. The State asserts that by amending section 2 in 1982, Congress intentionally grafted a limitation on section 14(c)(1) that “candidates for public or party office” only include “representatives”; since judges are not “representatives,” state judicial elections are exempt from the protective measures of the Act. In making this contention, the State, as well as the district court, points to the distinctive functions of judges as opposed to other elected officials. Specifically, the district court, citing Wells v. Edwards, 347 F.Supp. 453 (M.D.La. 1972), aff'd, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973), notes that the “one person, one vote” principle of apportionment has been held not to apply to the judicial branch of government on the basis of this distinction. See also Voter Information Project v. City of Baton Rouge, 612 F.2d 208 (5th Cir.1980). In Wells, the plaintiff sought reapportionment of the Louisiana Supreme Court Judicial Districts in accordance with one person, one vote principles. The Wells court rejected the plaintiff’s claim, reasoning that the “primary purpose of one-man, one-vote apportionment is to make sure that each official member of an elected body speaks for approximately the same number of constituents.” Wells, 347 F.Supp. at 455. The" }, { "docid": "10044541", "title": "", "text": "only include “representatives”; since judges are not “representatives,” state judicial elections are exempt from the protective measures of the Act. In making this contention, the State, as well as the district court, points to the distinctive functions of judges as opposed to other elected officials. Specifically, the district court, citing Wells v. Edwards, 347 F.Supp. 453 (M.D.La. 1972), aff'd, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973), notes that the “one person, one vote” principle of apportionment has been held not to apply to the judicial branch of government on the basis of this distinction. See also Voter Information Project v. City of Baton Rouge, 612 F.2d 208 (5th Cir.1980). In Wells, the plaintiff sought reapportionment of the Louisiana Supreme Court Judicial Districts in accordance with one person, one vote principles. The Wells court rejected the plaintiff’s claim, reasoning that the “primary purpose of one-man, one-vote apportionment is to make sure that each official member of an elected body speaks for approximately the same number of constituents.” Wells, 347 F.Supp. at 455. The district court then concluded that since judges do not represent, but instead serve people, the rationale behind one person, one vote apportionment of preserving a representative form of government is not relevant to the judiciary. Id. In Voter Information, this Court, bound by the holding in Wells due to the Supreme Court’s summary affirmance of that decision, rejected the plaintiffs’ claim for reapportionment of judicial districts on the one person, one vote theory. Voter Information, 612 F.2d at 211. However, the Voter Information Court then emphasized that the plaintiffs further asserted claims of racial discrimination under the fifteenth amendment which resulted in the dilution of black voting strength. Recognizing the difference between the two types of claims, the Court expressly rejected the applicability of the Wells decision to claims of racial discrimination, stating, [T]he various ‘one man one vote’ cases involving Judges make clear that they do not involve claims of race discrimination as such. To hold that a system designed to dilute the voting strength of black citizens and prevent the election of blacks" }, { "docid": "14843609", "title": "", "text": "the white majority votes sufficiently as a bloc to enable it, in the absence of 'special circumstances, usually to defeat the minority’s preferred candidate. 106 S.Ct. at 2766. Although the Court of Appeals squarely held in Chisom v. Edwards, 839 F.2d 1056 (5th Cir.1988), that elections for judicial office are subject to Section 2, it cannot be gainsaid that judicial elections are different from other, particularly legislative, elections. Judicial districts are created, not by reason of population, but for the purpose of the administration of justice in a particular jurisdiction. Judgeships are added, not because of population, but because of caseload. The boundaries of district courts are jurisdictional, not related to population. Judges are charged, not with making legislative or social policy, but with the duty of deciding individual cases according to the law, even when it is unpopular to do so. Hence, it has been recognized that the “one man-one vote” principle of legislative apportionment does not apply to judicial elections. Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972), aff’d, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973); see also Voter Information Project v. City of Baton Rouge, 612 F.2d 208 (5th Cir.1980). The Supreme Court in Thornburg v. Gingles, was considering a redistricting plan for the North Carolina General Assembly, not judicial elections, when it noted that “the inquiry into the existence of vote dilution caused by submergence in a multi-member district is district-specific.” 106 S.Ct. at 2771, n. 28. Both sides in this case have presented evidence regarding specific district court and court of appeal districts and plaintiffs have several times attempted to limit the case to a specific number of designated districts in which they claim Section 2 violations can be proved. Each time the court has declined to permit the limitation because of the court’s conviction that the case involves the election system, not just adjustments in individual judicial districts. For example, so long as the district court has only one judge, there can be no vote dilution claim. When caseload increases and an additional judgeship is created, however, the potential for vote dilution," }, { "docid": "21565461", "title": "", "text": "of the Voting Rights Act applies to judicial elections. There cannot be a violation of Section 2(b), however, through at-large elections of the trial judges who sit on the Texas district courts. While elected judges are representatives in that they are accountable to a constituency of electors, the full authority of a trial judge’s office is exercised exclusively by one individual, and there can be no share of such a single-member office. Consequently, the countywide election of district court judges does not violate the Voting Rights Act. REVERSED. . Ten counties actually are targeted. The challenged 72nd Judicial District encompasses two counties, Lubbock and Crosby. We will refer to the nine targeted Judicial Districts as nine counties. . In White v. Regester the Supreme Court interpreted the requirements of the Voting Rights Act and the U.S. Constitution with respect to claims of vote dilution: The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. 412 U.S. at 766, 93 S.Ct. at 2339. . The Fifth Circuit found the vote dilution claim in Mobile v. Bolden to be problematic, since no successful dilution claim expressly grounded on section 2 had been made previously. 571 F.2d 238, 243 (5th Cir.1978). This weakens claims that the new section 2 was merely returning to pr e-Bolden standards. . The one-person, one-vote principle mandated by the equal protection clause of the Fourteenth Amendment was held not to apply to the apportionment of state judiciaries in Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972) (3-judge court), aff’d mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973) (three justices, dissenting). Wells was distinguished from cases challenging election practices in Lefkovits v. State Board of Elections, 400 F.Supp. 1005 (N.D.Ill.1975) (3-judge court), aff'd mem., 424 U.S. 901, 96 S.Ct. 1092, 47 L.Ed.2d 306 (1976), where the court stated: [W]hen a" }, { "docid": "16686481", "title": "", "text": "not apply to the election of Judges. In a nutshell, the “one man one vote” rule means that “each person’s vote counts as much, insofar as it is practicable, as any other person’s.” Hadley v. Junior College District, 397 U.S. 50, 54, 90 S.Ct. 791, 794, 25 L.Ed.2d 45, 49-50 (1969). The District Court found three cases to be “dispositive” on the matter: Wells v. Edwards, 347 F.Supp. 443 (M.D.La.1972), aff’d, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973); Holshouser v. Scott, 335 F.Supp. 928 (M.D.N.C.1971); and Buchanan v. Rhodes, 249 F.Supp. 860 (N.D.Ohio 1960). Wells involved a challenge by a Jefferson Parish, Louisiana voter seeking reapportionment of the judicial districts from which a number of Justices of the Louisiana Supreme Court are elected. The District Court granted defendants’ motion for summary judgment. While recognizing that there appeared to be “considerable deviation between the population of some of the judicial districts involved,” 347 F.Supp. at 454, the Court nonetheless concluded that “the concept of one-man, one-vote appor tionment does not apply to the judicial branch of government.” Id. The Court distinguished Judges from legislators on the ground that “Judges do not represent people, they serve people.” Id. at 455, quoting Buchanan v. Rhodes, supra, 249 F.Supp. at 865. The Supreme Court affirmed without opinion, with Justice White writing a vigorous dissent (joined in by Justices Douglas and Marshall). In Holshouser, the District Court upheld a system whereby Judges were nominated in primary elections conducted in individual districts, but were elected by statewide vote. In Buchanan, the District Court upheld a scheme allocating at least one Judge to each county in Ohio, regardless of its size. Like Wells, both Holshouser and Buchanan held that the “one man one vote” principle does not apply to Judges. While excellent arguments have been made as to why the “one man one vote” principle should apply to Judges, see Note, The Equal-Population Principle: Does It Apply to Elected Judges?, 47 Notre Dame Lawyer 316 (1971); Holshouser v. Scott, supra, 335 F.Supp. at 934-35 (Craven, J., dissenting), we are bound with respect to this" }, { "docid": "29354", "title": "", "text": "POSNER, Chief Judge. The Illinois Republican Party and its chairman appeal from the dismissal, 959 F.Supp. 982 (C.D.I11.1997), on grounds of justiciability, of their suit for a declaration that the method prescribed by the state constitution for electing justices of the Supreme Court of Illinois in Cook County violates the equal protection clause of the Fourteenth Amendment. See 111. Const. Art. VI, §§ 2, 3. As amended in 1970, the constitution divides the state into five districts for purposes of electing supreme court justices. One of the districts is Cook County, which includes Chicago and surrounding suburbs. Three of the seven justices are elected by Cook County voters in at-large elections; each of the remaining four is elected by the voters of one of the other districts. This system violates the principle of “one person, one vote,” but that is not the plaintiffs’ complaint—and for the excellent reason that the principle is inapplicable to judicial elections challenged as denials of equal protection. Wells v. Edwards, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973), aff'g 347 F.Supp. 453 (M.D.La.1972) (three-judge district court). The complaint is that the use of the at-large method in Cook County denies members of a particular group, namely Republicans, a fair opportunity to elect candidates of their choice. White v. Regester, 412 U.S. 755, 765-70, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Republican Party v. Martin, 980 F.2d 943 (4th Cir.1993); cf. Barnett v. Daley, 32 F.3d 1196, 1198-99 (7th Cir.1994); Garza v. County of Los Angeles, 918 F.2d 763, 771 (9th Cir.1990). Cook County as a whole has more Democratic than Republican voters, and although Republicans are sometimes elected to county office, no Republican has been elected to the supreme court from Cook County since the 1970 amendment of the state constitution. The suburban areas of the county, however, are heavily Republican, with the consequence that if Cook County were divided into three districts for the election of supreme court justices (which the state constitution forbids, Cincinnati Ins. Co. v. Chapman, 181 Ill.2d 65, 229 Ill.Dec. 264, 268-69, 691 N.E.2d 374, 378-79 (1998)), then," }, { "docid": "3440013", "title": "", "text": "839, 89 S.Ct. 118, 21 L.Ed.2d 110 (1968) N.Y. State Assn. of Trial Lawyers v. Rockefeller, 267 F.Supp. 148 (S.D.N.Y.1967) Kail v. Rockefeller, 275 F.Supp. 937 (E.D.N.Y.1967) Romiti v. Kerner, 256 F.Supp. 35 (N.D.Ill.1966) Stokes v. Fortson, 234 F.Supp. 575 (N.D.Ga.1964) Since 1982 a few courts have held that the use of the term “representatives” in Section 2 does not necessarily exclude judges. See Southern Christian Leadership Conference of Alabama v. Siegelman, 714 F.Supp. 511 (M.D.Ala.1989); Clark v. Edwards, 725 F.Supp. 285 (M.D.La.1988); Mallory v. Eyrich, 839 F.2d 275 (6th Cir.1988); Martin v. Allain, 658 F.Supp. 1183 (S.D.Miss.1987). (All recognizing that the \"one-man, one-vote” principle does not apply to judicial elections and that, unlike legislators, judges do not “represent” those who elect them, but, nevertheless, refusing to apply its established meaning to Congress' use of the term \"representatives\" in Section 2 of the Voting Rights Act). . 347 F.Supp. 453 (M.D.La.1972), aff'd mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973) (Justice White, joined by Justices Douglas and Marshall, dissenting). . It is interesting to note that the dissent from the panel opinion, in the very course of complaining of the majority’s refusal to apply Section 2 to trial judges, candidly recognizes that judges, unlike legislative and executive officers, \"represent\" no one: When weighing a state’s claim that it has a compelling interest in retaining the existing at-large system, courts should keep in mind the common sense notion that the role of judges differs from that of legislative and executive officials. Since it is not the role of judges to \"represent” their constituents an examination of the \"responsiveness” of the elected official to minority concerns is clearly irrelevant. 902 F.2d at 317 n. 17. . In Whitcomb v. Chavis the Supreme Court directly considered a racial dilution challenge and rejected the claim that the Indiana legislative reapportionment plan operated to minimize or cancel out minority voting strength. The Court held that the mere fact that ghetto residents were not proportionately represented did not prove a constitutional violation unless they were denied equal access to the political process. ." }, { "docid": "22786993", "title": "", "text": "to majoritarian pressure when deciding constitutional cases\") (footnote omitted); Andrew S. Marovitz, Note, Casting a Meaningful Ballot: Applying One-Person, One-Vote to Judicial Elections Involving Racial Discrimination, 98 Yale L.J. 1193, 1206-07 (1989) (arguing that \"the amount of pressure felt by a state court judge in rendering a decision will be influenced directly by the method of judicial election utilized\" and that \"[¡judges elected by partisan election are most susceptible to direct pressure\") (footnotes omitted). . We are well aware of the numerous decisions like Wells, holding that a judicial office is not a representative one in the context of voting rights challenges. See, e.g., Holshouser v. Scott, 335 F.Supp. 928, 932 (M.D.N.C.1971) (holding that one-person, one-vote \"rule does not apply to the state judiciary\"), aff'd mem., 409 U.S. 807, 93 S.Ct. 43, 34 L.Ed.2d 68 (1972); League of United Latin Am. Citizens Council No. 4434 v. Clements, 914 F.2d 620, 626 n. 9 (5th Cir.1990) (citing cases rejecting challenges to judicial elections on various grounds), rev’d sub nom. Houston Lawyers’ Ass’n v. Attorney Gen. of Texas, — U.S. -, 111 S.Ct. 2376, 115 L.Ed.2d 379 (1991); Edward A. Sheridan, Note, The Equal-Population Principle: Does It Apply to Elected Judges?, 47 Notre Dame Law. 316, 320-326 (1971) (discussing cases rejecting application of vote debasement principles to judicial elections); Marovitz, supra note 18, at 1199 & n. 56 (same). . The Supreme Court summarily affirmed the opinion of the district court in Wells, and we are, of course, bound by it. The precedential effect of Wells, however, \"extends no further than the precise issues presented and necessarily decided by those actions.\" Anderson v. Celebrezze, 460 U.S. 780, 784 n. 5, 103 S.Ct. 1564, 1568 n. 5, 75 L.Ed.2d 547 (1983) (citing Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977)). Further, the Court may “ 'find it appropriate to give full consideration to a question that has been the subject of previous summary action.”’ Bandemer, 478 U.S. at 121, 106 S.Ct. at 2804 (quoting Washington v. Yakima Indian Nation, 439 U.S. 463, 477 n. 20, 99" }, { "docid": "3439994", "title": "", "text": "context of deciding whether the one-man, one-vote rubric applied to judicial elections. Not one had held the contrary. Typical of these is the opinion in Wells v. Edwards, a decision by a three-judge district court from our own circuit which was affirmed on appeal by the Supreme Court. There, after reviewing various authorities, the district court expressed the entire rationale of its view as follows: “Judges do not represent people, they serve people.” Thus, the rationale behind the one-man, one-vote principle, which evolved out of efforts to preserve a truly representative form of government, is simply not relevant to the makeup of the judiciary.. “The State judiciary, unlike the legislature, is not the organ responsible for achieving representative government.” 347 F.Supp., at 455-56 (quoting from Buchanan v. Rhodes, 249 F.Supp. 860 and New York State Association of Trial Lawyers v. Rockefeller, 267 F.Supp. 148). It is impossible, given the single point at issue and the simple reasoning stated, to believe that the majority of the Supreme Court, in affirming Wells, did not concur in that reasoning. If there were doubt, however, it would be laid to rest by the terms of the dissent, which attacks the district court opinion in stern, egalitarian terms for having, like other opinions cited by it, held “that the one-person, one-vote principle does not apply to the judiciary.” 409 U.S. 1095, 1096 n. 2, 93 S.Ct. 904, 905 n. 2. Nor is it likely, we think, that the Supreme Court would hold, as it necessarily did in affirming Wells v. Edwards, that although for purposes of the Equal Protection Clause of the Fourteenth Amendment judges “do not represent people,” all the same, for purposes of Section 2(b) of the Voting Rights Act, judges are “representatives of [the people’s] choice.” Both must be true, or neither one. Wells is not only instructive as to the meaning of “representatives” and thus as to the scope of Section 2, it is dispositive of the precise issue of the scope of Section 2’s applicability raised in this case. The Wells holding — that the one-person, one-vote rule does not" }, { "docid": "22262591", "title": "", "text": "clean slate, I would concur in the result of the recent decision in Latin American Citizens Council v. Clements, 914 F.2d 620 (5th Cir.1990) (en banc), that Section 2 of the Voting Rights Act of 1982 is not meant to apply to the selection of state judges on the same basis as executive and legislative political offices. The Clements court, I believe, was correct in concluding that Congress did not intend to apply a “results” test under Section 2 to election of state judges. See also Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972), aff'd mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973). I would now adhere to the following: Judicial offices and judicial selection processes are sui generis in our nation’s political system; they determine the referees in our majoritarian political game. These offices are not “representative” ones, and their occupants are not representatives. Indeed, the state processes for filling them need not even be elective, as those for all representative offices presumably must be_ [W]hen Congress determined to expand Section 2 of the Act to incorporate a results test for vote dilution, it stopped short of imposing such a test for judicial offices on the States by limiting it to their election of ‘ ‘representatives. ’ ’ Clements, 914 F.2d at 631. I recognize, however, that our decision to the contrary concerning the effect of Section 2 of the Voting Rights Act, reported at 839 F.2d 275 (6th Cir.1988), is the law of the case until overturned by the Supreme Court (or by this court)." }, { "docid": "22595135", "title": "", "text": "& 31. See also, Gray v. Sanders, supra note 29, (Supreme Court ordered Georgia primary districts apportioned on basis of population, not party registration). See also supra text accompanying note 36. . One person, one vote does not, for example, apply to the election of state judges, Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972), aff’d mem. 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973); Buchanan v. Rhodes, 249 F.Supp. 860 (N.D.Ohio), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966), or to “special purpose assemblies,” Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 727, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973). The standard also does not apparently apply to state constitutional conventions. Driskell v. Edwards, 374 F.Supp. 1 (W.D.La.) vacated on other grounds, 419 U.S. 812, 95 S.Ct. 26, 42 L.Ed.2d 38; Bates v. Edwards, 294 So.2d 532, 534 (La. 1974); Stander v. Kelley, 433 Pa. 406, 250 A.2d 474 cert. denied sub nom. Lindsay v. Kelley, 395 U.S. 827, 89 S.Ct. 2130, 23 L.Ed.2d 738 (1969); Livingston v. Ogilvie, 43 Ill.2d 9, 250 N.E.2d 138 (1969). . This analogy to a legislature, which perforce must be a part of Wymbs’ argument, is somewhat stretched at points. For example, the appointment of nominees for election vacancies resembles an executive, not a legislative, function. The Supreme Court has never held that one person, one vote is applicable to the selection of delegates to political party nominating conventions. See Cousins, 409 U.S. at 483 n. 4, 95 S.Ct. at 545 n. 4. Federal district courts are divided on this point. See Ripon, 525 F.2d at 579 n. 29 (citing cases). No U.S. Circuit Court has held the one person, one vote rule applicable to selection of delegates to national political conventions. Two circuit courts have rejected this contention. See Ripon, 525 F.2d 578-87 (D.C.Circuit) and Irish, 399 F.2d 119-25 (8th Cir.). Wymbs would not just have us become the first circuit to apply this rule to delegate selections. He would have us take one step further and apply a one registered Republican," }, { "docid": "22786994", "title": "", "text": "Texas, — U.S. -, 111 S.Ct. 2376, 115 L.Ed.2d 379 (1991); Edward A. Sheridan, Note, The Equal-Population Principle: Does It Apply to Elected Judges?, 47 Notre Dame Law. 316, 320-326 (1971) (discussing cases rejecting application of vote debasement principles to judicial elections); Marovitz, supra note 18, at 1199 & n. 56 (same). . The Supreme Court summarily affirmed the opinion of the district court in Wells, and we are, of course, bound by it. The precedential effect of Wells, however, \"extends no further than the precise issues presented and necessarily decided by those actions.\" Anderson v. Celebrezze, 460 U.S. 780, 784 n. 5, 103 S.Ct. 1564, 1568 n. 5, 75 L.Ed.2d 547 (1983) (citing Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977)). Further, the Court may “ 'find it appropriate to give full consideration to a question that has been the subject of previous summary action.”’ Bandemer, 478 U.S. at 121, 106 S.Ct. at 2804 (quoting Washington v. Yakima Indian Nation, 439 U.S. 463, 477 n. 20, 99 S.Ct. 740, 749, n. 20, 58 L.Ed.2d 740 (1979)). We believe that the questions of whether superi- or court judges are governmental representatives, and whether differences among elected officials bear on establishing a prima facie case of discrimination, relate to the justification offered by NCSBE for the classification rather than to whether RPNC has presented a prima facie case of discrimination. . The treatment of Wells by the Supreme Court in Chisom does not compel a different result. See Chisom,-U.S. at-, 111 S.Ct. at 2367-68. There, the state maintained that without reliance on the one-person, one-vote principle, courts could not arrive at a manageable standard to adjudicate vote dilution challenges to judicial elections. Because Wells foreclosed such reliance, the state's argument continued, judicial elections should be invulnerable to claims of vote dilution. See id. The Court rejected- this argument, emphasizing that Chisom did not present the question of the appropriate standard to be applied in litigation under § 2 and that, in any event, the “analysis of a proper statutory standard ... need not rely" }, { "docid": "3440012", "title": "", "text": "Dist., 473 F.Supp. 334 (S.D.Ohio 1977) The Ripon Society, Inc. v. National Republican Party, 525 F.2d 567 (D.C.Cir.1975), cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 1148, 47 L.Ed.2d 341 (1976) Fahey v. Darigan, 405 F.Supp. 1386 (D.C.R.I.1975) Gilday v. Board of Elections of Hamilton County, Ohio, 472 F.2d 214 (6th Cir.1972) Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972), aff’d mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973) Buchanan v. Gilligan, 349 F.Supp. 569 (N.D.Ohio 1972) Holshouser v. Scott, 335 F.Supp. 928 (M.D.N.C.1971), aff'd mem., 409 U.S. 807, 93 S.Ct. 43, 34 L.Ed.2d 68 (1972) Sullivan v. Alabama State Bar, 295 F.Supp. 1216 (M.D.Ala.), aff’d per curiam, 394 U.S. 812, 89 S.Ct. 1486, 22 L.Ed.2d 749 (1969) (involving Board of Commissioners of Alabama State Bar) Irish v. Democratic-Farmer-Labor Party of Minnesota, 287 F.Supp. 794 (D.C.Minn.), aff’d, 399 F.2d 119 (8th Cir.1968) Buchanan v. Rhodes, 249 F.Supp. 860 (N.D.Ohio 1966), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966), and vacated, 400 F.2d 882 (6th Cir.1968), cert. denied, 393 U.S. 839, 89 S.Ct. 118, 21 L.Ed.2d 110 (1968) N.Y. State Assn. of Trial Lawyers v. Rockefeller, 267 F.Supp. 148 (S.D.N.Y.1967) Kail v. Rockefeller, 275 F.Supp. 937 (E.D.N.Y.1967) Romiti v. Kerner, 256 F.Supp. 35 (N.D.Ill.1966) Stokes v. Fortson, 234 F.Supp. 575 (N.D.Ga.1964) Since 1982 a few courts have held that the use of the term “representatives” in Section 2 does not necessarily exclude judges. See Southern Christian Leadership Conference of Alabama v. Siegelman, 714 F.Supp. 511 (M.D.Ala.1989); Clark v. Edwards, 725 F.Supp. 285 (M.D.La.1988); Mallory v. Eyrich, 839 F.2d 275 (6th Cir.1988); Martin v. Allain, 658 F.Supp. 1183 (S.D.Miss.1987). (All recognizing that the \"one-man, one-vote” principle does not apply to judicial elections and that, unlike legislators, judges do not “represent” those who elect them, but, nevertheless, refusing to apply its established meaning to Congress' use of the term \"representatives\" in Section 2 of the Voting Rights Act). . 347 F.Supp. 453 (M.D.La.1972), aff'd mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973) (Justice White, joined by Justices Douglas and Marshall, dissenting). . It is" }, { "docid": "16686480", "title": "", "text": "him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957). See also Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263, 268 (1972); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652, 654 (1972). And for purposes of a motion to dismiss, material allegations of the complaint are taken as admitted, Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404, 416 (1969), and the complaint is to be liberally construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 96 (1974). Because of these principles, “dismissal of a claim on the basis of the barebone pleadings is a precarious one with a high mortality rate.” Barber v. M/V “Blue Cat”, 372 F.2d 626, 627, 1969 A.M.C. 211, 212 (5th Cir. 1967). In this case, the District Court dismissed the complaints on the ground that the “one man one vote” principle does not apply to the election of Judges. In a nutshell, the “one man one vote” rule means that “each person’s vote counts as much, insofar as it is practicable, as any other person’s.” Hadley v. Junior College District, 397 U.S. 50, 54, 90 S.Ct. 791, 794, 25 L.Ed.2d 45, 49-50 (1969). The District Court found three cases to be “dispositive” on the matter: Wells v. Edwards, 347 F.Supp. 443 (M.D.La.1972), aff’d, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973); Holshouser v. Scott, 335 F.Supp. 928 (M.D.N.C.1971); and Buchanan v. Rhodes, 249 F.Supp. 860 (N.D.Ohio 1960). Wells involved a challenge by a Jefferson Parish, Louisiana voter seeking reapportionment of the judicial districts from which a number of Justices of the Louisiana Supreme Court are elected. The District Court granted defendants’ motion for summary judgment. While recognizing that there appeared to be “considerable deviation between the population of some of the judicial districts involved,” 347 F.Supp. at 454, the Court nonetheless concluded that “the concept of one-man, one-vote appor tionment does not apply to the" }, { "docid": "22786965", "title": "", "text": "of their constituents, the electorate undoubtedly considers the broad philosophical views of candidates when voting. NCSBE maintains that Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972), aff'd mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973), requires a contrary result. In Wells, the district court rejected a claim based on the one-person, one-vote doctrine applied to the election of Louisiana Supreme Court justices, reasoning that “ ‘[¡Judges do not represent people, they serve people.’ ” Id. at 455 (quoting Buchanan v. Rhodes, 249 F.Supp. 860, 865 (N.D.Ohio 1960), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966)). Vote dilution and one-person, one-vote claims are distinct, and therefore Wells does not mandate a dismissal of a claim based on vote dilution. See Voter Info. Project, Inc. v. City of Baton Rouge, 612 F.2d 208, 210-12 (5th Cir.1980) (recognizing distinction between claims grounded in one-person, one-vote and vote dilution in Rule 12(b)(6) challenge to an at-large method of electing state and city judges). B. Having rejected NCSBE’s contention that the Equal Protection Clause is not implicated, we now address whether RPNC’s complaint sets forth a prima facie case of vote dilution brought about by political gerrymandering. In order to state such a claim, a plaintiff must allege “intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” Bandemer, 478 U.S. at 127, 106 S.Ct. at 2808. The effect portion of the test “requires a showing of more than a de minimis effect.” Id. at 134, 106 S.Ct. at 2811. Consequently, a plaintiff must complain that an actual or projected history of disproportionate results exists, id. at 139, 106 S.Ct. at 2813-14, and that “the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole,” id. at 132, 106 S.Ct. at 2810. The intent standard set forth in the Bandemer plurality opinion is easily met, and we conclude that RPNC’s complaint offers sufficient allegations of intent to withstand dismissal under Rule 12(b)(6). See id. at 127-29 & n." } ]

[ { "docid": "18669747", "title": "", "text": "a previous felony conviction to be present in Los Angeles without registering with police. 355 U.S. at 227, 78 S.Ct. at 242. The Court held that due process required “actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply.” Id. at 229, 78 S.Ct. at 243. Ayala’s reliance on Lambert is misplaced because it is undisputed that Ayala knew it was illegal to re-enter the United States after his deportation. Even INS Form 1-294 made that clear. C. Intent Requirement Ayala’s final argument is that the indictment should have been dismissed because it failed to allege that he intended to violate the law when he re-entered the United States. In Pena-Cabanillas v. United States, 394 F.2d 785, 788-89 (9th Cir.1968), we held that the government does not need to allege specific intent under 8 U.S.C. § 1326. See also United States v. Ramos-Quirarte, 935 F.2d 162, 163 (9th Cir.1991) (specific intent is not an element of a § 1326 offense). Thus, it is irrelevant whether Ayala intended to violate § 1326; all that is necessary is that Ayala entered the United States voluntarily. See Pena-Cabanillas, 394 F.2d at 790. Ayala can not contend that his re-entry to and subsequent presence in the United States were involuntary. Ayala acknowledges that our decision in Pena-Cabanillas does not support his position. He argues, however, that we should revisit the intent requirements of § 1326 because the enhanced penalties in § 1326(b) (adopted in 1988) have shed the statute of its regulatory purpose and made it a distinctly penal statute. We reject the argument. The 1988 amendments to .§ 1326 did not change the intent requirements of the statute; they simply enhanced the penalties for aliens who violate § 1326(a) and have prior felony records. Pena-Cabanillas controls. AFFIRMED. .. In Canals-Jimenez, the defendant was arrested at the Miami airport shortly after' arriving from the Dominican Republic. He was charged with violating § 1326 for being “found in” the United States. Defendant contended that § 1326 did not apply because he was travelling directly to" } ]

[ { "docid": "3874950", "title": "", "text": "RONALD M. GOULD, Circuit Judge: Baltazar Pernillo-Fuentes appeals his conviction and thirty-month sentence for attempted entry following deportation in violation of 8 U.S.C. § 1326. We reverse. On February 16, 2000, the grand jury returned a one-count indictment in which it charged Pernillo-Fuentes as follows: On or about November 20, 1999, within the Southern District of California, defendant BALTAZAR PERNILLO- FUENTES, an alien, who previously-had been excluded, deported and removed from the United States to Guatemala, attempted to enter the United States at the Tecate Port of Entry, without the Attorney General of the United States having expressly consented to the defendant’s reapplication for admission into the United States; in violation of Title 8, United States Code, Section 1326. Pernillo-Fuentes timely moved to dismiss the indictment on various grounds, including that the “indictment fail[ed] to allege the specific intent required in ‘attempt’ crimes.” The district court denied the motion. On April 7, 2000, Pernillo-Fuentes entered a conditional guilty plea in which he preserved his right to appeal the denial of his motion to dismiss the indictment. The district court sentenced Pernillo-Fuentes to a term of thirty months imprisonment followed by a three-year term of supervised release. This timely appeal followed. Citing our recent decision in United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir.2000) (en banc), Pernillo-Fuentes asserts that his indictment was defective because it failed to allege specific intent. We review the sufficiency of an indictment de novo, United States v. Tobias, 863 F.2d 685, 687 (9th Cir.1988), and agree with Pernillo-Fuentes. In Gracidas-Ulibarry, an en banc panel of this court held that “the crime of attempted illegal reentry into the United States includes the common law element of specific intent.” 231 F.3d at 1190. The Supreme Court has held that one of the protections an indictment is intended to guarantee is measured by “whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet.... ” Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (internal quotation marks" }, { "docid": "9803710", "title": "", "text": "not prove specific intent under § 1326); United States v. Hernandez, 693 F.2d 996 (10th Cir.1982) (§ 1326 has no specific intent requirement); United States v. Newton, 677 F.2d 16 (2d Cir.1982) (nothing in language or history of § 1326 to suggest government must prove specific intent). But see United States v. Anton, 683 F.2d 1011 (7th Cir.1982). . As we observed in Pena-Cabanillas, ‘‘[e]ven in a crime requiring no specific intent, a defendant may defend upon the ground that he did no voluntary act; that he was asleep or unconscious at the time an act occurred. We refer to this as ‘general intent’ to do or not do the act.” 394 F.2d at 788 n. 2. . See United States v. Cardenas-Alvarez, 987 F.2d 1129, 1133 (5th Cir.1993) (so describing attempted reentry, as distinguished from actual entry); cf. United States v. Oscar, 496 F.2d 492, 493 (9th Cir.1974) (\"entry” does not occur until the alien is free from official restraint of customs officials). . Gracidas-Ulibarry says that he raised this claim by objecting to the district court's failure to instruct that attempted reentry is a specific intent crime, but his objection does not preserve for appeal the wholly separate question of what guideline the district court should have used in sentencing. See United States v. Holland, 880 F.2d 1091, 1095 (9th Cir.1989) (\"Holland’s blanket objection to the admission of the tape does not preserve an objection to failure to redact the tape.”). SILVERMAN, Circuit Judge, concurring: I concur in all but Part III of the majority’s opinion. It is an axiom of American criminal law that an attempt “includes an element of specific intent even if the crime attempted does not.” United States v. Hadley, 918 F.2d 848 (9th Cir.1990). As we said in United States v. Arbelaez, 812 F.2d 530, 534 (9th Cir.1987): [T]he elements of an attempt are (1) intent to engage in criminal conduct and (2) an overt act which is a substantial step towards the commission of the crime. The government does not have to prove that the defendant knew that his conduct was illegal," }, { "docid": "3100264", "title": "", "text": "a case where the defendant was convicted of illegal entry in violation of § 1326(a). Corona-Garcia, 210 F.3d at 977-79. We held that “[t]he gravamen of the offense in this case — that is to say the conduct at the core of the offense — is entry.” Id. at 978. We “expressly rejected] [the defendant’s] contention that ‘illegal entry’ is the gravamen of the offense.” Id. at 978 n. 3. This case differs from Corona-Garcia because Valdez-Novoa was convicted of attempted illegal entry, rather than the completed offense. Unlike Corona-Garcia, who was serving time in a California state prison for an unrelated offense when the government concluded that he had illegally entered the U.S., ValdeznNovoa never made it past the San Ysidro Port of Entry. Both attempted illegal reentry and the completed version of the offense are prohibited by § 1326(a). But they differ in one important respect: attempted illegal reentry is a specific intent crime, while the completed offense is not. See Gracidas-Ulibarry, 231 F.3d at 1191-92 (“We hold that the attempt prong of § 1326 incorporates the well-established common law meaning of ‘attempt’ and requires proof of a specific intent to enter illegally.”); United States v. Flores-Villar, 536 F.3d 990, 999 (9th Cir.2008) (“Attempted illegal entry ... is a specific intent crime, but ... illegal reentry and being found in the United States is not.”). Because the government must introduce “proof of a specific intent to enter illegally,” Gracidas-Ulibarry, 231 F.3d at 1192, the gravamen of the offense is attempted illegal entry rather than attempted entry. C. Evidence Corroborating Valdez-Novoa’s Confession We apply a two-pronged test to determine whether sufficient evidence corroborates Valdez-Novoa’s confession: [F]irst, although the state need not introduce independent evidence of the corpus delicti in conformance with the traditional test, it must introduce sufficient evidence to establish that the criminal conduct at the core of the offense has occurred. Second, it must introduce independent evidence tending to establish the trustworthiness of the admissions, unless the confession is, by virtue of special circumstances, inherently reliable. Lopez-Alvarez, 970 F.2d at 592. With respect to the first prong," }, { "docid": "21447442", "title": "", "text": "98 S.Ct. 866, 55 L.Ed.2d 40 (1978)); see, e.g., Hing Sum v. Holder, 602 F.3d 1092, 1100-01 & n. 8 (9th Cir.2010) (interpreting the word “admission” in § 1101(a)(13)(A) in light of existing BIÁ precedent requiring freedom from restraint). Second, the official restraint doctrine is a practical necessity. In its absence, mere physical presence in the United States, without permission, would give rise to criminal liability for illegal reentry under § 1326. See United States v. Barragan-Cepeda, 29 F.3d 1378, 1381 (9th Cir.1994) (listing the elements of § 1326). We doubt Congress intended to make criminals out of persons who, for any number of innocent reasons, approach immigration officials at the border. Because “in a literal and physical sense a person coming from abroad enters the United States whenever he reaches any land, water or air space within the territorial limits of this nation,” “freedom from official restraint must be added to physical presence before entry is accomplished.” Vasilatos, 209 F.2d at 197. B Judge Bybee also questions our holding in United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1190, 1196 (9th Cir.2000) (en banc), that attempted illegal reentry is a specific intent crime, citing four circuits that have rejected that proposition—United States v. Rodriguez, 416 F.3d 123, 125 (2d Cir.2005); United States v. Morales-Palacios, 369 F.3d 442, 445-49 (5th Cir.2004); United States v. Peralt-Reyes, 131 F.3d 956, 957 (11th Cir.1997); United States v. Reyes-Medina, 53 F.3d 327, 1995 WL 247343, at *1 (1st Cir.1995) (unpublished). Concurrence at 1168 & n. 5. All four of those cases, however, were decided before the Supreme Court’s decision in United States v. Resendiz-Ponce, 549 U.S. 102, 106-07, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007), which confirmed that the attempt prong of § 1326 incorporates the common law meaning of attempt, including an element requiring the specific intent to commit the underlying crime. Resendiz-Ponce confirms that Gracidas-Ulibarry was correctly decided. C Finally, Judge Bybee questions our holding in United States v. Lombera-Valdovinos, 429 F.3d 927, 929 (9th Cir.2005), that official restraint “encompasses restraint by any government official, not just officials of DHS,” the Department of" }, { "docid": "22035317", "title": "", "text": "Opinion by Judge FISHER; Concurrence by Judge FERNANDEZ. FISHER, Circuit Judge: Under 8 U.S.C. § 1326, a previously deported alien who “enters, attempts to enter, or is at any time found in” the United States without the express consent of the Attorney General is subject to a fine and imprisonment for up to two years. In Pena-Cabanillas v. United States, 394 F.2d 785, 788-90 (9th Cir.1968), we held that illegal reentry into the United States under § 1326 required only a showing of general intent because it was a malum prohibitum regulatory offense and the statute did not otherwise specify an intent requirement for that crime. The question posed by this case, however, is what level of intent must the government prove to convict an alien of attempted illegal reentry under § 1326? The statutory language for the crime of attempted illegal reentry differs from the language used for an accomplished illegal reentry, because “attempt” is a term that at common law requires proof that the defendant had the specific intent to commit the underlying crime and took some overt act that was a substantial step toward committing that crime. See, e.g., United States v. Arbelaez, 812 F.2d 530, 534 (9th Cir.1987). Because we must assume Congress intended to incorporate the well-established common law meaning of “attempt” into § 1326 absent a contrary statutory command, we conclude the crime of attempted illegal reentry into the United States includes the common law element of specific intent. FACTUAL and PROCEDURAL BACKGROUND On the morning after he was deported from the Calexico, California, port of entry, Alfredo Graeidas-Ulibarry (“Gra-cidas”) was discovered riding as a passenger in the back seat of a car being driven through the border checkpoint at the San Ysidro, California, port of entry. At primary inspection, an immigration inspector asked Gracidas about his citizenship, to which he replied that he was a United States citizen. When, upon further questioning, Gracidas failed to produce identification or to explain how he became a citizen, the inspector became suspicious and referred the car and its occupants to secondary inspection. At secondary inspection, Gracidas" }, { "docid": "22035331", "title": "", "text": "however, argues that the common law doctrine of attempt does not apply to this statutory crime. Instead, it relies on our conclusion in Pena-Cabanillas that actual, illegal reentry is a crime of general intent. It also invokes our reasoning in Penar-Cabanillas that § 1326 provides for a malum prohi-bitum offense, and includes no explicit language as to intent whereas Congress included explicit intent requirements in other sections of the Immigration and Nationality Act of 1952 that enacted § 1326. Unlike its use of the term “enters” in § 1326 for the crime of illegal reentry, however, Congress’ use of the term “attempts” does not reflect silence as to intent but is consistent with a purpose to “adopt[ ] the cluster of ideas that were attached to [the] borrowed word in the body of learning from which it was taken.” Morissette, 342 U.S. at 263, 72 S.Ct. 240. This principle applies regardless of whether the mental culpability requirement of the crime attempted is general intent or mala prohibita strict liability. See 2 La-Fave & Scott, supra, § 6.2(c)(3), at 28 (“[T]here is no such thing as strict liability attempt.... An attempt to commit a strict liability offense is ... possible only if it is shown that the defendant acted with an intent to bring about the proscribed result.”). Thus, Pena-Cabanillas and the decisions by this court and other circuits holding that only general intent is required for the crime of illegal reentry into or being found in the United States under 8 U.S.C. § 1326 are inapposite. The only other circuit to address, in a published opinion binding in its own courts, the level of intent required for the crime of attempted illegal reentry is the Eleventh Circuit, which held 'in United States v. Peralt-Reyes, 131 F.3d 956 (11th Cir.1997), that attempted illegal reentry is a general intent crime. However, the Peralt-Reyes opinion provides no analysis other than the court’s adoption of the holding of an unpublished First Circuit decision which has no precedential value. See id. at 957 (citing and adopting the holding of United States v. Reyes-Medina, No. 94-1923," }, { "docid": "18229692", "title": "", "text": "to dismiss the indictment. The decision of the district court is therefore AFFIRMED. . 235 F.3d at 1200. - Id. . See id.; see also United States v. Castellanos-Garcia, 270 F.3d 773, 776 (9th Cir.2001) (citing Quintana-Torres, 235 F.3d at 1200). . A review board of the Office of the Inspector General found that the agents did nothing wrong. . United States v. Navarro-Vargas, 367 F.3d 896, 898 (9th Cir.2004). . 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002). . Id. at 659, 122 S.Ct. 1764 (internal quotation marks omitted). . Id. at 674, 122 S.Ct. 1764. . See United States v. Lara-Aceves, 183 F.3d 1007, 1012 (9th Cir.1999), overruled on other grounds by United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001) (en banc). .See 8 U.S.C. § 1326(a)(2). . 212 F.3d 1162 (9th Cir.2000). . Id. at 1165. . United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir.2001). . United States v. San Juan-Cruz, 314 F.3d 384, 390 (9th Cir.2002). . Parga-Rosas, 238 F.3d at 1213. . 289 F.3d 558 (9th Cir.2002) (en banc). . Id. at 568. . 364 F.3d 1142 (9th Cir.2004). . Id. at 1146. . 212 F.3d at 1164. . Matter of Pierre, 14 I. & N. Dec. 467, 468 (B.I.A.1973). .Id. (internal citations omitted). . See Pacheco-Medina, 212 F.3d at 1163-64. . Id. at 1165. . Parga-Rosas, 238 F.3d at 1213 (citation omitted). . See United States v. Pina-Jaime, 332 F.3d 609, 613 (9th Cir.2003) (requiring the Government to prove an unlawful act in order to convict an alien of being found in the United States); United States v. Ayala, 35 F.3d 423, 425-26 (9th Cir.1994) (holding that a § 1326 violation is not a status crime). . See Pina-Jaime, 332 F.3d at 613 (citing Pena-Cabanillas v. United States, 394 F.2d 785, 790 (9th Cir.1968) (requiring general intent)). In contrast, an \"attempt to enter” offense under § 1326 is a specific intent crime. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1195-96 (9th Cir.2000) (en banc). Thus, the Government must charge mens rea in § 1326 \"attempt to enter” indictments." }, { "docid": "9803702", "title": "", "text": "1412 (9th Cir.1997). However, § 1326(a) is different from most ordinary crimes in that it not based on a common law crime but is instead “a regulatory statute enacted to assist in the control of unlawful immigration by aliens. This offense is a typical mala prohibita offense, and since it denounces the doing of an act as criminal, if a defendant voluntarily does the forbidden act, the laws implies the intent.” Pena-Cabanillas v. United States, 394 F.2d 785, 788-89 (9th Cir.1968). By its terms, § 1326(a) “denoimces the doing” of three acts as criminal; entering, attempting to enter, or being found in the United States after being deported without consent of the Attorney General to reapply for admission. It makes no dis tinction among the three, treating each as a completed crime. No intent is prescribed for any, and as we said in Pena-Cabanillas, “[i]t would be absurd for this court to think that Congress inadvertently left ‘intent’ out of Section 1326.” Id. at 790; see also id. at 789 & n. 4 (noting the absence of legislative history on whether Congress meant to include language inferring “intent” in § 1326, but also noting that such language was used in other sections of the Immigration and Nationality Act). Accordingly, we held in Pena-Cabanillas and have reaffirmed since “that the government does not need to allege specific intent under 8 U.S.C. § 1326.” United States v. Ayala, 35 F.3d 423, 426 (9th Cir.1994) (considering “found in” prong); see also United States v. Ortiz-Villegas, 49 F.3d 1435, 1437 (9th Cir.1995) (recognizing “our long-standing rule that violation of § 1326 requires only a general intent to reenter the United States”); United States v. Ramos-Quirarte, 935 F.2d 162, 163 (9th Cir.1991) (repeating that “there is nothing in the statute to suggest that specific intent is an element of the offense”). Only general intent is required. It is clear that an alien who has been deported and voluntarily reenters the United States without authorization has the intent required to support a § 1326 conviction for entry and for being “found in” the United States. See" }, { "docid": "22035345", "title": "", "text": "intent or scienter necessary to separate wrongful from innocent conduct, see Carter v. United States, 530 U.S. 255, 120 S.Ct. 2159, 2169, 147 L.Ed.2d 203 (2000), mala prohibita regulatory offenses being an exception. See Staples v. United States, 511 U.S. 600, 606, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); Bailey, 444 U.S. at 404 n. 4, 100 S.Ct. 624; Pena-Cabanillas, 394 F.2d at 788. Here, of course, § 1326 does use the well-established common law term, \"attempts.” . We noted in Pena-Cabanillas that 8 U.S.C. §§ 1287, 1306, 1324, 1325 and 1328 each used terms such as \"knowingly,” \"wilfully,” \"unlawful intent” and \"purpose,” which explicitly indicated specific intent was required, while 8 U.S.C. §§ 1306(b), 1306(c), 1321, 1322, 1323 and 1326 did not. 394 F.2d at 789 n. 4. Pena-Cabanillas did not, however, address the intent requirement for § 1326 attempts. . See, e.g., United States v. Martus, 138 F.3d 95, 97 (2d Cir.1998) (illegal reentry); United States v. Martinez-Morel, 118 F.3d 710, 713 (10th Cir.1997) (same); United States v. Henry, 111 F.3d 111, 113-14 (11th Cir.1997) (same); United States v. Trevino-Martinez, 86 F.3d 65, 68 (5th Cir.1996) (same); United States v. Leon-Leon, 35 F.3d 1428, 1432-33 (9th Cir.1994) (same); United States v. Ayala, 35 F.3d 423, 426 (9th Cir.1994) (found in the United States); United States v. Espinoza-Leon, 873 F.2d 743, 746 (4th Cir.1989) (same); United States v. Hernandez, 693 F.2d 996, 1000 (10th Cir.1982) (illegal reentry); United States v. Newton, 677 F.2d 16, 16-17 (2d Cir.1982) (found in the United States); United States v. Hussein, 675 F.2d 114, 115-16 (6th Cir.1982) (illegal reentry); but cf. United States v. Anton, 683 F.2d 1011, 1017 (7th Cir.1982) (holding that specific intent is required for illegal reentry under 8 U.S.C. § 1326). . In United States v. Cardenas-Alvarez, 987 F.2d 1129, 1131-33 (5th Cir.1993), the Fifth Circuit reviewed for sufficiency of the evidence a conviction for attempted illegal reentry. The court concluded there was sufficient evidence to sustain the jury's conclusion that the defendant intended to reenter illegally. See id. at 1132. However, the court did not specifically address the issue" }, { "docid": "22035346", "title": "", "text": "(11th Cir.1997) (same); United States v. Trevino-Martinez, 86 F.3d 65, 68 (5th Cir.1996) (same); United States v. Leon-Leon, 35 F.3d 1428, 1432-33 (9th Cir.1994) (same); United States v. Ayala, 35 F.3d 423, 426 (9th Cir.1994) (found in the United States); United States v. Espinoza-Leon, 873 F.2d 743, 746 (4th Cir.1989) (same); United States v. Hernandez, 693 F.2d 996, 1000 (10th Cir.1982) (illegal reentry); United States v. Newton, 677 F.2d 16, 16-17 (2d Cir.1982) (found in the United States); United States v. Hussein, 675 F.2d 114, 115-16 (6th Cir.1982) (illegal reentry); but cf. United States v. Anton, 683 F.2d 1011, 1017 (7th Cir.1982) (holding that specific intent is required for illegal reentry under 8 U.S.C. § 1326). . In United States v. Cardenas-Alvarez, 987 F.2d 1129, 1131-33 (5th Cir.1993), the Fifth Circuit reviewed for sufficiency of the evidence a conviction for attempted illegal reentry. The court concluded there was sufficient evidence to sustain the jury's conclusion that the defendant intended to reenter illegally. See id. at 1132. However, the court did not specifically address the issue whether attempted reentry requires general or specific intent. . As we recognized in Pena-Cabanillas, however, \"[e]ven in a crime requiring no specific intent, a defendant may defend upon the ground that he did no voluntary act: that he was asleep or unconscious at the time an act occurred.'' 394 F.2d at 788 n. 2; see also Carter, 530 U.S. at -, 120 S.Ct. at 2169 (noting that sleepwalking would be a defense to 18 U.S.C. § 2113(a) even if it were a general intent crime). . Gracidas requested the following jury instruction: First, the defendant intended to reenter the United States without the consent of the Immigration and Nationalization Service; Second, the defendant did something which was a substantial step towards committing the crime; Third, the defendant is not a citizen or national of the United States; Fourth, the defendant was lawfully deported from the United States; Fifth, the defendant attempted to reenter the United States without the consent of the Immigration and Naturalization Service. FERNANDEZ, Circuit Judge, concurring: Because I agree with the persuasive" }, { "docid": "22035344", "title": "", "text": "located in the United States, Gracidas had not yet reentered. An alien does not reenter, and cannot be considered found in, the United States until he or she is physically present in the country and free from official restraint. See United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir.2000). . Gracidas does not appeal his conviction under 18 U.S.C. § 911. . The INS has delegated authority under 8 C.F.R. § 2.1. . We adopt and thus reinstate the panel’s conclusions that the evidence was sufficient to support Gracidas' § 1326 conviction, that the district court erred by failing to decrease Gra-cidas’ offense level by a third point for acceptance of responsibility under U.S. Sentencing Guidelines Manual § 3E1.1(b)(1), and that the district court did not err in applying U.S.S.G. § 2L1.2 to Gracidas’ sentence under § 1326. See Gracidas-Ulibarry, 192 F.3d at 928, 931. . Even when Congress has not used a common law term having an implicit level of intent, a court will read into a statute at least a level of intent or scienter necessary to separate wrongful from innocent conduct, see Carter v. United States, 530 U.S. 255, 120 S.Ct. 2159, 2169, 147 L.Ed.2d 203 (2000), mala prohibita regulatory offenses being an exception. See Staples v. United States, 511 U.S. 600, 606, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); Bailey, 444 U.S. at 404 n. 4, 100 S.Ct. 624; Pena-Cabanillas, 394 F.2d at 788. Here, of course, § 1326 does use the well-established common law term, \"attempts.” . We noted in Pena-Cabanillas that 8 U.S.C. §§ 1287, 1306, 1324, 1325 and 1328 each used terms such as \"knowingly,” \"wilfully,” \"unlawful intent” and \"purpose,” which explicitly indicated specific intent was required, while 8 U.S.C. §§ 1306(b), 1306(c), 1321, 1322, 1323 and 1326 did not. 394 F.2d at 789 n. 4. Pena-Cabanillas did not, however, address the intent requirement for § 1326 attempts. . See, e.g., United States v. Martus, 138 F.3d 95, 97 (2d Cir.1998) (illegal reentry); United States v. Martinez-Morel, 118 F.3d 710, 713 (10th Cir.1997) (same); United States v. Henry, 111 F.3d 111, 113-14" }, { "docid": "9803709", "title": "", "text": "crime; Fourth, that the defendant previously had been deported from the United States on or about December 4, 1997; and Fifth, that prior to his attempted reentry the defendant had not received permission from the Attorney General to reapply for admission to the United States. . As the Second Circuit noted in United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir.1995), \"[t]he offense of illegal entry or illegal attempt is normally uncomplicated and is completed as soon as the entry or attempt is made.” . All other circuits to consider' the question, except for the Seventh (over a dissent by Judge Posner), agree. See United States v. Henry, 111 F.3d 111 (11th Cir.1997) (specific intent is not element of offense of illegal reentry in violation of § 1326); United States v. Trevino-Martinez, 86 F.3d 65 (5th Cir.1996) (§ 1326 does not require government to prove specific intent); United States v. Espinoza-Leon, 873 F.2d 743 (4th Cir.1989) (§ 1326 conviction requires merely voluntary act); United States v. Hussein, 675 F.2d 114 (6th Cir.1982) (government need not prove specific intent under § 1326); United States v. Hernandez, 693 F.2d 996 (10th Cir.1982) (§ 1326 has no specific intent requirement); United States v. Newton, 677 F.2d 16 (2d Cir.1982) (nothing in language or history of § 1326 to suggest government must prove specific intent). But see United States v. Anton, 683 F.2d 1011 (7th Cir.1982). . As we observed in Pena-Cabanillas, ‘‘[e]ven in a crime requiring no specific intent, a defendant may defend upon the ground that he did no voluntary act; that he was asleep or unconscious at the time an act occurred. We refer to this as ‘general intent’ to do or not do the act.” 394 F.2d at 788 n. 2. . See United States v. Cardenas-Alvarez, 987 F.2d 1129, 1133 (5th Cir.1993) (so describing attempted reentry, as distinguished from actual entry); cf. United States v. Oscar, 496 F.2d 492, 493 (9th Cir.1974) (\"entry” does not occur until the alien is free from official restraint of customs officials). . Gracidas-Ulibarry says that he raised this claim by objecting to" }, { "docid": "9803701", "title": "", "text": "States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission. We do not disagree that most attempts are (and should be) specific intent crimes, whether or not the crime attempted includes an element of specific intent. See, e.g., United States v. Sneezer, 900 F.2d 177, 179 (9th Cir.1990). As we have explained, the reason is that [attempts, like aiding and abetting, involve a degree of uncertainty regarding the defendant’s purpose to commit the underlying crime-an uncertainty that is not present in the case of a principal who actually commits the crime. Because of that uncertainty, it is reasonable to require proof of a specific intent that would not be required of one who completed the crime. United States v. Sayetsitty, 107 F.3d 1405, 1412 (9th Cir.1997). However, § 1326(a) is different from most ordinary crimes in that it not based on a common law crime but is instead “a regulatory statute enacted to assist in the control of unlawful immigration by aliens. This offense is a typical mala prohibita offense, and since it denounces the doing of an act as criminal, if a defendant voluntarily does the forbidden act, the laws implies the intent.” Pena-Cabanillas v. United States, 394 F.2d 785, 788-89 (9th Cir.1968). By its terms, § 1326(a) “denoimces the doing” of three acts as criminal; entering, attempting to enter, or being found in the United States after being deported without consent of the Attorney General to reapply for admission. It makes no dis tinction among the three, treating each as a completed crime. No intent is prescribed for any, and as we said in Pena-Cabanillas, “[i]t would be absurd for this court to think that Congress inadvertently left ‘intent’ out of Section 1326.” Id. at 790; see also id. at 789 & n. 4 (noting the" }, { "docid": "9803703", "title": "", "text": "absence of legislative history on whether Congress meant to include language inferring “intent” in § 1326, but also noting that such language was used in other sections of the Immigration and Nationality Act). Accordingly, we held in Pena-Cabanillas and have reaffirmed since “that the government does not need to allege specific intent under 8 U.S.C. § 1326.” United States v. Ayala, 35 F.3d 423, 426 (9th Cir.1994) (considering “found in” prong); see also United States v. Ortiz-Villegas, 49 F.3d 1435, 1437 (9th Cir.1995) (recognizing “our long-standing rule that violation of § 1326 requires only a general intent to reenter the United States”); United States v. Ramos-Quirarte, 935 F.2d 162, 163 (9th Cir.1991) (repeating that “there is nothing in the statute to suggest that specific intent is an element of the offense”). Only general intent is required. It is clear that an alien who has been deported and voluntarily reenters the United States without authorization has the intent required to support a § 1326 conviction for entry and for being “found in” the United States. See Ortiz-Villegas, 49 F.3d at 1437. The same is true for an alien who, like Gracidas-Ulibarry, was deported and voluntarily “attempts to enter” by approaching a port of entry and making a false claim of citizenship. Gracidas-Ulibarry was in a car in line to pass the check point (already miles across the border), falsely told two different immigration inspectors that he was a United States citizen, and gave one of them a false name-a story in which he persisted until confronted with information to the contrary from a computer search. From these facts, the intent to try to reenter-which is itself the crime-is apparent, and the crime and intent to commit it precisely coincide. We therefore join other circuits in the view that the government need not prove that a defendant had specific intent to violate the statute; all that is required is that a defendant enter or attempt to enter the United States voluntarily without permission. See United States v. Martus, 138 F.3d 95, 97 (2d Cir.1998) (“the government need only prove a voluntary act" }, { "docid": "15465775", "title": "", "text": "our decision in United States v. Newton, 677 F.2d 16 (2d Cir.1982), we held that “the government need only prove a voluntary act of reentry or attempted reentry by the defendant that is not expressly sanctioned by the Attorney General.” 138 F.3d at 97 (emphasis added). While the reference to attempted reentry is dicta in Martus, we see no reason to withdraw from that conclusion here, and now hold that the offense of attempted illegal reentry under § 1326(a) does not require the government to allege or prove that a defendant had the specific intent to reenter the United States without the expressed permission of the Attorney General. We find that nothing about the nature of the offense as an “attempt” crime, rather than a completed crime, requires proof of specific intent. In so holding, we join several of our sister circuits, see, e.g., United States v. Morales-Palacios, 369 F.3d 442, 446-48 (5th Cir.2004); United States v. Peralt-Reyes, 131 F.3d 956 (11th Cir.1997) (per curiam); United States v. Reyes-Medina, 53 F.3d 327 (1st Cir.1995) (per curiam), and depart from one, see United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir.2000). In support of his argument on appeal, Rodriguez relies heavily on the Ninth Circuit’s opinion in Gracidas-Ulibarry. Defendant in that case, on the morning after he was deported from the United States, was found in the back seat of a car being driven through a checkpoint on the border between Mexico and California. He was subsequently charged with attempted illegal reentry. At the end of trial Gracidas-Ulibarry requested that the jury be charged that it must find that he “ ‘intended to reenter the United States without the consent of the Immigration and Naturalization Service.’ ” 231 F.3d at 1191. That request was denied and, instead, the jury was asked to determine whether Gra-cidas-Ulibarry “ ‘attempted to reenter the United States on or about December 5, 1997,’ and did not have the requisite permission of the Attorney General.” Id. Gracidas-Ulibarry appealed; and the Ninth Circuit, sitting en banc, reversed, holding that “the attempt prong of § 1326 incorporates the well-established" }, { "docid": "15465776", "title": "", "text": "curiam), and depart from one, see United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir.2000). In support of his argument on appeal, Rodriguez relies heavily on the Ninth Circuit’s opinion in Gracidas-Ulibarry. Defendant in that case, on the morning after he was deported from the United States, was found in the back seat of a car being driven through a checkpoint on the border between Mexico and California. He was subsequently charged with attempted illegal reentry. At the end of trial Gracidas-Ulibarry requested that the jury be charged that it must find that he “ ‘intended to reenter the United States without the consent of the Immigration and Naturalization Service.’ ” 231 F.3d at 1191. That request was denied and, instead, the jury was asked to determine whether Gra-cidas-Ulibarry “ ‘attempted to reenter the United States on or about December 5, 1997,’ and did not have the requisite permission of the Attorney General.” Id. Gracidas-Ulibarry appealed; and the Ninth Circuit, sitting en banc, reversed, holding that “the attempt prong of § 1326 incorporates the well-established common law meaning of ‘attempt’ and requires proof of a specific intent to enter illegally.” Id. at 1191-92. In support of this holding, the Ninth Circuit relied on the common law’s requirement of specific intent for attempt crimes, which, the court found, is designed “to resolve the uncertainty whether the defendant’s purpose was indeed to engage in criminal, rather than innocent, conduct.” Id. at 1193. Noting prior Ninth Circuit support for the proposition that when legislatures use “attempt” in a statute, they intend to incorporate the common law requirement of specific intent, and finding that “[njeither the text of § 1326 nor its legislative history gives any indication that Congress intended not to incorporate the common law meaning of the term ‘attempts’ into the crime of attempted illegal reentry,” the court concluded that “Congress intended an attempted reentry under § 1326 to be a crime of specific intent.” Id. More concretely, the Court held that, to be found guilty of attempted illegal reentry, a defendant must have “the purpose, i.e. conscious desire, to reenter the" }, { "docid": "22353257", "title": "", "text": "Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(b)(l)(A) (2000). The district court denied Velasco-Medina’s request for a downward adjustment under U.S.S.G. § 3E1.1 for acceptance of responsibility. After departing five levels to account for the comparatively minor nature of Velasco-Medina’s aggravated felony, the district court sentenced him to forty-six months in custody and three years of supervised release for Count One, and to thirty months in custody and one year of supervised release for Count Two, to run concurrently. Velasco-Medina timely appeals his conviction for attempted reentry, the imposition of the sixteen-level enhancement, and the denial of a downward adjustment for acceptance of responsibility. DISCUSSION I Jurisdiction Over Count One of the Indictment (8 U.S.C. § 1326) In United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir.2000) (en banc), we held that “the crime of attempted illegal reentry into the United States includes the common law element of specific intent.” Gracidas-Ulibarry, 231 F.3d at 1190. (“Specific intent” denotes the purpose or conscious desire to cause the particular offense. Id. at 1196.) Thus, a conviction for attempted illegal reentry under 8 U.S.C. § 1326 requires proof that “the defendant had the purpose, i.e., conscious desire, to reenter the United States without the express consent of the Attorney General.” Id.; see also United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001) (reversing conviction for attempted reentry after deportation because the indictment failed to allege specific intent as required by Gracidas-Ulibarry). Count One of the indictment failed to charge Velasco-Medina with specific intent to attempt to reenter the United States after deportation. The parties agree that the government’s failure to allege specific intent rendered the indictment defective under Pemillo-Fuentes. The government asserts, however, that Velasco-Medina waived his objection to the indictment’s sufficiency by failing to raise it before the district court. Velasco-Medina responds that the indictment’s defect deprived the district court of jurisdiction over the case ah initio, and thus requires that we overturn his conviction. We find neither argument availing. The government’s position that Ve-lasco-Medina waived any objection to the indictment’s sufficiency by failing to raise it in the district court has been" }, { "docid": "16107149", "title": "", "text": "a count without having reached a unanimous verdict on the commission of a particular offense.” Id. The government acknowledges that it may not charge a defendant in a single count with two separate and distinct offenses. It argues, however, that attempted transportation and completed transportation are not separate and distinct offenses, and therefore that Counts 3 and 4 are not duplicitous. According to the government, both offenses are general intent crimes and both require at least a “substantial step” towards completion. After Ramirez’s trial, an en banc panel of this court decided United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir.2000) (en banc). In that case, we were asked to interpret 8 U.S.C. § 1326 and to decide whether the offense of “attempting] to enter” the United States was a general intent or specific intent crime. 231 F.3d at 1190. Concluding that “Congress intended to incorporate the well-established common law meaning of ‘attempt’ into § 1326,” we held that attempting to enter the United States was a specific intent crime. Id. Although Ramirez’s case concerns § 1324, not § 1326, Gracidas-Ulibarry ’s reasoning and conclusion applies with equal force here. “When Congress has used a term that has a settled common law meaning, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of that term.” Gracidas-Ulibarry, 231 F.3d at 1193 (quotation omitted). As in § 1326, Congress employed the word “attempt” in § 1324. See 8 U.S.C. § 1324(a)(1)(A)(ii). At common law, “the crime of attempt requires a showing of specific intent even if the crime attempted does not.” Gracidas-Ulibarry, 231 F.3d at 1192 (quotation omitted). Therefore, we conclude that “attempt[ing] to transport” illegal aliens in violation of § 1324(a)(l)(A)(ii), requires a showing of specific intent. Actual (completed) transporting under § 1324(a)(l)(A)(ii), however, is a general intent crime. See 8 U.S.C. § 1324(a)(l)(A)(ii) (“Any person who ... knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law-”) (emphasis added). This distinction is not without a difference. In" }, { "docid": "22035332", "title": "", "text": "§ 6.2(c)(3), at 28 (“[T]here is no such thing as strict liability attempt.... An attempt to commit a strict liability offense is ... possible only if it is shown that the defendant acted with an intent to bring about the proscribed result.”). Thus, Pena-Cabanillas and the decisions by this court and other circuits holding that only general intent is required for the crime of illegal reentry into or being found in the United States under 8 U.S.C. § 1326 are inapposite. The only other circuit to address, in a published opinion binding in its own courts, the level of intent required for the crime of attempted illegal reentry is the Eleventh Circuit, which held 'in United States v. Peralt-Reyes, 131 F.3d 956 (11th Cir.1997), that attempted illegal reentry is a general intent crime. However, the Peralt-Reyes opinion provides no analysis other than the court’s adoption of the holding of an unpublished First Circuit decision which has no precedential value. See id. at 957 (citing and adopting the holding of United States v. Reyes-Medina, No. 94-1923, 1995 WL 247343 (1st Cir.Apr.25, 1995)). The unpublished First Circuit decision, in turn, did not analyze attempted illegal reentry in § 1326 as a separate crime, but rather relied solely on cases holding that illegal reentry is a general intent crime and assumed they apply to attempted illegal reentry. See Reyes-Medina, 1995 WL 247343, at *1 (relying on cases cited above in note 5). We find these decisions unpersuasive. They do not consider the common law meaning of the term “attempt.” Nor do they provide any reason for concluding Congress intended not to incorporate the common law meaning of the term into 8 U.S.C. § 1326. Our conclusion is consistent with our recent decision in Blanco-Gallegos. In Blanco-Gallegos, the defendant argued he did not have the requisite intent for attempted illegal reentry- under 8 U.S.C. § 1326 because he had become voluntarily intoxicated and accidentally walked into the port of entry. See 188 F.3d at 1074. Significantly, we considered this defense on its merits and concluded the jury properly rejected it as unsubstantiated. See id." }, { "docid": "18229693", "title": "", "text": "(9th Cir.2002) (en banc). . Id. at 568. . 364 F.3d 1142 (9th Cir.2004). . Id. at 1146. . 212 F.3d at 1164. . Matter of Pierre, 14 I. & N. Dec. 467, 468 (B.I.A.1973). .Id. (internal citations omitted). . See Pacheco-Medina, 212 F.3d at 1163-64. . Id. at 1165. . Parga-Rosas, 238 F.3d at 1213 (citation omitted). . See United States v. Pina-Jaime, 332 F.3d 609, 613 (9th Cir.2003) (requiring the Government to prove an unlawful act in order to convict an alien of being found in the United States); United States v. Ayala, 35 F.3d 423, 425-26 (9th Cir.1994) (holding that a § 1326 violation is not a status crime). . See Pina-Jaime, 332 F.3d at 613 (citing Pena-Cabanillas v. United States, 394 F.2d 785, 790 (9th Cir.1968) (requiring general intent)). In contrast, an \"attempt to enter” offense under § 1326 is a specific intent crime. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1195-96 (9th Cir.2000) (en banc). Thus, the Government must charge mens rea in § 1326 \"attempt to enter” indictments. . United States v. Berrios-Centeno, 250 F.3d 294, 299 (5th Cir.2001). . See United States v. Quintana-Torres, 235 F.3d 1197, 1200 (9th Cir.2000) (stating that absent proof otherwise, a juror may infer the defendant intended to be in the United States if the defendant is found within this country). . Berrios-Centeno, 250 F.3d at 299 (quoting Parga-Rosas, 238 F.3d at 1213) (alterations in original). . 235 F.3d at 1200. . Id. . See id.; see also United States v. Castellanos-Garcia, 270 F.3d 773, 776 (9th Cir.2001) (citing Quintana-Torres, 235 F.3d at 1200). . Berrios-Centeno, 250 F.3d at 299-300. . See United States v. Navarro-Vargas, 408 F.3d 1184, 1202-04 (9th Cir.2005)(en banc); United States v. Adams, 343 F.3d 1024, 1027 n. 1 (9th Cir.2003), United States v. Marcucci, 299 F.3d 1156, 1164 (9th Cir.2002) (per curiam)." } ]

[ { "docid": "22069649", "title": "", "text": "takes issue with each of plaintiffs’ contentions as to the merits of their claims. It also argues that plaintiffs’ briefs and evidentiary submissions contain deficiencies that give rise to two independent bases for affirming the district court’s decision in its entirety. First, the Town asserts that, because plaintiffs’ proffered affidavits are fourteen years old, they are insufficient to oppose a summary judgment motion absent an affirmative showing that the affiants remain competent to testify at trial. Second, the Town argues we should dismiss the appeal pursuant to Fed. R.App. P. 28, because plaintiffs’ briefs lack legal arguments and adequate citations to the record. I. Standard of Review We review the grant of a motion for summary judgment de novo. See Brody v. Village of Port Chester, 345 F.3d 103, 108 (2d Cir.2003). In determining whether there are genuine issues of material fact that preclude judgment for the defendant as a matter of law, we must resolve all ambiguities in favor of the nonmoving parties. See Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). The Court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996). Thus, we will affirm the district court’s grant of summary judgment only if, taking all of plaintiffs’ evidence as true, we find that no reasonable juror could conclude that plaintiffs have established that the Town’s police violated plaintiffs’ constitutional rights under circumstances subjecting the Town to liability under § 1983. II. Plaintiffs’ Allegations of Excessive Force The foundation of plaintiffs’ suit against the Town is their contention that the degree of force used by the police officers at both demonstrations was excessive under the circumstances, such that the officers violated plaintiffs’ Fourth Amendment right against unreasonable seizure. See, e.g., Neighbour v. Covert, 68 F.3d 1508, 1511 (2d Cir.1995) (per curiam) (determining whether plaintiffs’ constitutional rights had been violated before considering municipal liability). Although the district" } ]

[ { "docid": "22770829", "title": "", "text": "received adequate notice, the District Court’s judgment would not stand. Before granting summary judgment, the District Court referred the case to a Magistrate Judge to “have one issue of fact resolved: whether Mr. Vital signed a stipulation of settlement dismissing his claim with prejudice.” This was error: While a District Court may take oral testimony on a summary judgment motion pursuant to Rule 43(e) of the Federal Rules of Civil Procedure, see Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 42 n. 2 (2d Cir.1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1295, 94 L.Ed.2d 151 (1987), the purpose of doing so is not to assess the credibility of witnesses or resolve issues of fact, but merely to deter mine whether there are issues to be tried, see Vona v. County of Niagara, 119 F.3d 201, 205 n. 4 (2d Cir.1997) (noting that it would be improper on a motion for summary judgment to “turn[ a] Rule 43(e) hearing into a bench trial” by making findings of disputed facts). As we have previously observed: The function of the district court in considering the motion for summary judgment is not to resolve disputed issues of fact but only to determine whether there is a genuine issue to be tried. Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment. Any weighing of the evidence is the prerogative of the finder of fact, not an exercise for the court on summary judgment. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996) (citations omitted); see also Rodriguez v. City of New York, 72 F.3d 1051, 1061, 1063-64 (2d Cir.1995); United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994). We also note that IMC cannot prevail in this action simply by showing that Mr. Vital signed the Settlement Agreement; rather, IMC must establish that the agreement constituted a knowing and voluntary release of Mr. Vital’s right to bring a Title VII action. See Livingston v. Adirondack Beverage Co., 141 F.3d 434, 438 (2d Cir.1998) (applying “a ‘totality of" }, { "docid": "7182849", "title": "", "text": "elsewhere have held that officers’ use of racial epithets may be regarded as direct evidence of racial animus and, when combined with physical abuse or other unlawful actions, may establish an equal protection violation. See, e.e., Cole, 379 Fed.Appx. at 43 (“When the verbal harassment and simultaneous physical abuse ... are considered together, we have little trouble concluding that plaintiff’s allegations were sufficient to state a § 1983 claim for discrimination on the basis of race and religion.”); Williams v. Kaufman Cty., 352 F.3d 994, 1013 . (5th Cir.2003) (“[R]acial epithets that accompany harassment or a violation of. established rights may amount to a separate equal protection violation.”) (citing Williams v. Bramer, 180 F.3d 699, 706 (5th Cir.1999) (“The use. of an epithet ... is strong evidence that a comment or action is racially motivated.”)); King v. City of Eastpointe, 86. Fed.Appx. 790, 814 (6th Cir.2003) (unpublished decision) (“The use of racially discriminatory language can provide evidence of- a discriminatory purpose when that language' is coupled with some additional harassment or constitutional violation.”); Burton v. Livingston, 791 F.2d 97, 100 n. 1 (8th Cir.1986) (“[W]hen the racially derogatory language is coupled with conduct infringing the prisoner’s right to security of his person, an inference arises that the conduct was motivated by racial bias.”). Defendants deny that Plaintiff was subjected to any racial slurs or physical abuse, but this is typically the type of credibility determination that must be left to a jury. See Jeffreys v. City of New, York, 426 F.3d 549, 553-54 (2d Cir.2005) (“‘Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.’ ”) (quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)); Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996) (“In applying [the summary judgment] standard, the court should not weigh evidence or assess the credibility' of witnesses.”); United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994) (“On a motion for summary judgment, the court is not to weigh the evidence, or assess the credibility of" }, { "docid": "13317347", "title": "", "text": "1224 (2d Cir.1994). Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 84 (2d Cir.2004); accord Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir.2005); Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223-24 (2d Cir.1994). “Material facts are those which ‘might affect the outcome of the suit under the governing law,’ and a dispute is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir.2007), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007). “ ‘[I]n ruling on a motion for summary judgment, a judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented[.]’ ” Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 788 (2d Cir.2007), quoting Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 298 (2d Cir.1996). The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists .... In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant .... Stated more succinctly, “[t]he evidence of the non-movant is to be believed.” Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 253-54 (2d Cir.2002) (citations omitted); see also Jeffreys v. City of New York, supra, 426 F.3d at 553 (“‘Assessments of credibility and choices between conflicting versions of the events are mat ters for the jury, not for the court on summary judgment.’”), quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996); accord Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir.2004); Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003). The Second Circuit has" }, { "docid": "15047270", "title": "", "text": "suffered multiple abrasions and bruises that lasted approximately one week; “though the plaintiffs alleged injuries may not have been severe, they were not so superficial as to warrant dismissal as a matter of law.”), report & rec. adopted, 2008 WL 3833811 (S.D.N.Y. Aug. 14, 2008); Pierre-Antoine v. City of N.Y., 04 Civ. 6987, 2006 WL 1292076 at *3 (S.D.N.Y. May 9, 2006) (Lynch, D.J.) (declining to dismiss excessive force claim although “the medical evidence [made] it less likely that [plaintiff] can prevail at trial, particularly because it does not reveal any severe injury.... It is for the fact-finder to weigh all of this evidence against [plaintiffs] sworn testimony, and to assess whether and to what extent the medical evidence strips that testimony of its credibility.”). C. Sash’s Uncorroborated Testimony is Sufficient to Raise Issues of Fact Finally, defendants urge the Court to not credit Sash’s assertion that he was tackled because there is no evidence, except for Sash’s testimony, to support his allegations. (Dkt. No. 24: Defs. Br. at 14.) Defendants argue that “ ‘[w]hen opposing parties tell two different stories, one if which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.’ ” (Defs. Br. at 14, quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007).) However, “[i]t is a settled rule that ‘[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.’ ” McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.2006) (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997)); see also cases cited at page 536 above. The Court does not find Sash’s version of events to be so incredible, or in such discord with other evidence, as to find his allegations “wholly fanciful.” Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005) (“At the summary judgment stage, a nonmoving party" }, { "docid": "17004990", "title": "", "text": "with respect to this issue, that the court may not determine credibility, and that therefore Arrington’s sworn testimony that the officers continued to attack him after he was handcuffed, no matter how self-serving and implausible, entitles him to a jury trial. Maj. Op. 338. But the judge’s role in deciding a motion for summary judgment is more robust and flexible than the majority conceives. To defeat summary judgment, nonmov-ing parties “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); the party “must offer some hard evidence showing that its version of the events is not wholly fanciful,” D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998). “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). While it is admittedly not the duty of district courts to weigh the credibility of the parties’ testimony at the summary judgment stage, “in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether ‘the jury could reasonably find for the plaintiff,’ and thus whether there are any ‘genuine’ issues of material fact, without making some assessment of the plaintiffs account.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005) (citation omitted). Therefore, we have held that summary judgment “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.” Johnson v. Wash. Metro. Area Transit Auth., 883 F.2d 125, 128 (D.C.Cir.1989) (emphasis added); see also Laio v. Va. Stage Lines, 444 F.2d 990" }, { "docid": "2877566", "title": "", "text": "adopting report-recommendation of Lowe, M.J.); Collins v. Fed. Bur. of Prisons, 05-CV-0904, 2007 WL 37404, at *4 (N.D.N.Y. Jan. 4, 2007) (Kahn, J., adopting report-recommendation of Lowe, M.J.). .See Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 174 (2d Cir.2006) (\"[C]redibility, in the ordinary course of things, is for a fact-finder to evaluate.”); Stichting v. Schreiber, 407 F.3d 34, 55 (2d Cir.2005) (\"[T]o resolve at the summary judgment stage, and before Mead testifies, the question of whether a reasonable jury might believe Mead would, we think, amount to a credibility determination that we are not entitled to make.”); Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996) (at the summary judgment stage, the court \"is ... to eschew credibility assessments”); accord, Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996) (\"Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.”); accord, Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005); see also Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996) (\"In apply [the summary judgment] standard, the court should not weigh evidence or assess the credibility of witnesses.”); accord, U.S. v. Rem, 38 F.3d 634, 644 (2d Cir. 1994). . Blake v. Race, 487 F.Supp.2d 187, 202 (E.D.N.Y.2007). . See, supra, note 62 of this Report-Recommendation. . Jeffreys, 426 F.3d at 554; Caraballo v. City of New York, 05-CV-8011, 2007 WL 1584202, at *6 (S.D.N.Y. May 31, 2007); Blake, 487 F.Supp.2d at 202; Dove v. City of New York, 03-CV-5052, 2007 WL 805786, at *5, 2007 U.S. Dist. LEXIS 18341, at *16 (E.D.N.Y. March 15, 2007); Chapel Park Villa, Ltd. v. The Travelers Ins. Co., Inc., 02-CV-0407, 2006 WL 2827867, at *7 (W.D.N.Y. Sept. 29, 2006); Allah v. Greiner, 03-CV-3789, 2006 WL 357824, at *2 (S.D.N.Y. Feb. 15, 2006). . (Dkt. No. 39, Part 12, at 8-10 [Ex. 8 to Seaman Affid.].) . (Dkt. No. 39, Part 11 [Ex. 8 to" }, { "docid": "22400347", "title": "", "text": "in the police officers’ own testimony,” id. at 19 — -were sufficient to defeat summary judgment. We review the District Court’s grant of summary judgment de novo. Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir.2002). Summary judgment is warranted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). A fact is “material” for these purposes when it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The burden of demonstrating that no material fact exists lies with the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). When considering a motion for summary judgment, a court must construe the evidence in the light most favorable to the nonmoving party, drawing all inferences in that party’s favor. Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir.2003). “[T]he judge must ask ... not whether ... the evidence unmistakably favors ones side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. “Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.” Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996); see also Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996) (“In applying th[e] [summary judgment] standard, the court should not weigh evidence or assess the credibility of witnesses.”); United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994) (same). However, “[t]he mere existence of a scintilla" }, { "docid": "3822999", "title": "", "text": "delayed when L-7’s counsel moved for leave to withdraw and the parties engaged in, unsuccessfully, settlement negotiations. I now decide the motion. DISCUSSION A. Summary Judgment Standard The standards governing motions for summary judgment are well settled. A court may grant summary judgment only where there is no genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment must be denied “if the evidence is such that a reasonable jury could return a verdict in favor” of the non-moving party. See NetJets Aviation, Inc. v. LHC Commc’ns, LLC, 537 F.3d 168, 178-79 (2d Cir.2008). In deciding a motion for summary judgment, the Court must construe the evidence in the light most favorable to, and draw all reasonable inferences in favor of, the non-moving party. In re “Agent Orange” Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir.2008). The non-moving party cannot, however, “escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture.” W. World Ins. Co. v. Stack.Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (internal citation and quotation marks omitted). The role of the Court on a motion for summary judgment is not to ask whether “the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-moving party] on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).. Because the Court’s role is limited in this respect, it may not make factual findings, determine credibility of witnesses, or weigh evidence. See Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005); Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996); United States v. Rem, 38 ■ F.3d 634, 644 (2d Cir.1994). B. Failure To Negotiate in Good Faith As the Second Circuit noted," }, { "docid": "19479771", "title": "", "text": "for summary judgment, the non-movant-in this case, Plaintiff-\"must come forward with 'specific facts showing that there is a genuine issue for trial.' \" Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed. R. Civ. P. 56(e) ). \" \"[M]ere speculation or conjecture as to the true nature of the facts\" will not suffice.\" Hicks v. Baines , 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks and citations omitted). A plaintiff \"must do more than simply show that there is some metaphysical doubt as to the material facts,\" Matsushita , 475 U.S. at 586, 106 S.Ct. 1348, and \"may not rely on conclusory allegations or unsubstantiated speculation,\" Fujitsu Ltd. v. Fed. Express Corp. , 247 F.3d 423, 428 (2d Cir. 2001) (internal citation omitted). In determining whether there exists a genuine dispute as to a material fact, the Court is \"required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.\" Johnson v. Killian , 680 F.3d 234, 236 (2d Cir. 2012) (internal citation omitted). The Court's job is not to \"weigh the evidence or resolve issues of fact.\" Lucente v. Int'l Bus. Machs. Corp. , 310 F.3d 243, 254 (2d Cir. 2002) ; see also Hayes v. N.Y. City Dep't of Corr. , 84 F.3d 614, 619 (2d Cir. 1996) (\"In applying th[e] [summary judgment] standard, the court should not weigh evidence or assess the credibility of witnesses.\"). \"Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.\" Jeffreys v. City of New York , 426 F.3d 549, 553-54 (2d Cir. 2005) (internal citation omitted). \"[T]he judge must ask ... not whether ... the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.\" Id. at 553 (quoting Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ); see also Battino v. Cornelia Fifth Ave. , LLC," }, { "docid": "20254131", "title": "", "text": "S.Ct. 2505 (emphasis added). In weighing the evidence on a motion for summary judgment, “the judge must ask ... not whether the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Id. The burden of demonstrating that no material fact exists lies with the moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The District Court’s Assessment of Rojas’s Testimony The District Court granted summary judgment after concluding that Rojas had offered “sham evidence” in opposition to the defendants’ motions. In other words, it concluded that no reasonable juror could believe certain of Rojas’s factual averments in opposition to summary judgment, given contradictory statements she had made in prior sworn testimony and pleadings. Although a district court generally “should not weigh evidence or assess the credibility of witnesses,” Hayes v. N.Y. City Dept of Corr., 84 F.Sd 614, 619 (2d Cir.1996), we have held that in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether ‘the jury could reasonably find for the plaintiff/ ... and thus whether there are any ‘genuine’ issues of material fact, without making some assessment of the plaintiffs account. Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505). It appears from the record before us that this is such a case. Rojas’s opposition to summary judgment relied almost entirely on her own testimony, in the form of an affidavit and excerpts from her depositions. In contrast, the Diocese submitted competent and persuasive evidence, including contemporaneous letters and meeting notes suggesting that, to the extent Rojas made complaints regarding her relationship with Enyan-Boadu, they related to the general friction between the two and made no reference to sexual harassment. Therefore, in order to determine whether there were any genuine issues of material fact to be tried by" }, { "docid": "22400348", "title": "", "text": "90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). When considering a motion for summary judgment, a court must construe the evidence in the light most favorable to the nonmoving party, drawing all inferences in that party’s favor. Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir.2003). “[T]he judge must ask ... not whether ... the evidence unmistakably favors ones side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. “Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.” Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996); see also Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996) (“In applying th[e] [summary judgment] standard, the court should not weigh evidence or assess the credibility of witnesses.”); United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994) (same). However, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (emphasis added). To defeat summary judgment, therefore, nonmoving parties “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and they “may not rely on conclusory allegations or unsubstantiated speculation.” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir.2001) (internal quotation marks omitted); see also Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2d Cir.1992) (noting that summary judgment cannot be defeated “on the basis of conjecture or surmise”) (internal quotation marks omitted). At the summary judgment stage, a nonmoving party “must offer some hard evidence showing that its version of the events is not wholly fanciful.” D’Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir.1998). As the" }, { "docid": "13088234", "title": "", "text": "issue as to any material fact, and if the moving party is entitled to a judgment as a matter of law.” Id. (internal quotation marks omitted). In making this determination, as already noted, we “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Lederman, 731 F.3d at 202 (internal quotation marks and alterations omitted). “The judge must ask not whether the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) (internal quotation marks and alterations omitted). “Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.” Id. (internal quotation marks omitted). “A section 1983 claim for false arrest' is substantially the same as a claim for false arrest under New York law.” Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir.2007) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996)). To avoid liability for a claim of false arrest, an arresting officer may demonstrate that either (1) he had probable cause for the arrest, or (2) he is protected from liability because he has qualified immunity. See Weyant, 101 F.3d at 852. A finding of probable cause is a complete defense to false arrest claims. See Jenkins, 478 F.3d at 84. An arresting officer has probable cause when the officer has “knowledge or reasonably trustworthy information -of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Weyant, 101 F.3d at 852. When determining whether probable cause existed to support an arrest, we “consider those facts available to the officer at the time of arrest and immediately before it,” and we must render our decision based on the “totality of the circumstances.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.2006) (internal quotation marks and emphasis" }, { "docid": "19017800", "title": "", "text": "it. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994). Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 84 (2d Cir.2004); accord Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir.2005); Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223-24 (2d Cir.1994). “Material facts are those which ‘might affect the outcome of the suit under the governing law,’ and a dispute is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir.2007), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007). “ ‘[I]n ruling on a motion for summary judgment, a judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented!.]’ ” Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 788 (2d Cir.2007), quoting Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 298 (2d Cir.1996). The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists .... In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant .... Stated more succinctly, “[t]he evidence of the non-movant is to be believed.” Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 253-54 (2d Cir.2002) (citations omitted); see also Jeffreys v. City of New York, supra, 426 F.3d at 553 (“ ‘Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.’”), quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996); accord Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir.2004); Dallas Aerospace, Inc. v. CIS Air Corp., 352" }, { "docid": "5300116", "title": "", "text": "F.2d at 50. c. Summary Judgment Standard The standards governing motions for summary judgment are well-settled. A court may grant summary judgment only where there is no genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment should be denied “if the evidence is such that a reasonable jury could return a verdict” in favor of the non-moving party. See NetJets Aviation, Inc. v. LHC Commc’ns, LLC, 537 F.3d 168, 178-79 (2d Cir.2008). In deciding a motion for summary judgment, the court must construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in the that party’s favor. In re “Agent Orange” Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir.2008). The non-moving party cannot, however, “escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture.” W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (internal citations and quotations omitted). In deciding a motion for summary judgment, the role of the court is not to ask whether “the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Because the court’s role is limited in this respect, it may not make factual findings, determine credibility of witnesses, or weigh evidence. See Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir.2005); Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996). In the context of a copyright infringement claim, summary judgment may be granted when any similarities between the works relate only to non-copyrightable elements or when no reasonable jury could find the two works substantially similar. Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir.1992)." }, { "docid": "2877565", "title": "", "text": "could be dismissed for failing to comply with Rules 8 and 10 if his mistakes either \"undermine the purpose of notice pleading [ ]or prejudice the adverse party”). . Stinson v. Sheriffs Dep't of Sullivan Cty., 499 F.Supp. 259, 262 & n. 9 (S.D.N.Y.1980); accord, Standley v. Dennison, 05-CV-1033, 2007 WL 2406909, at *6, n. 27 (N.D.N.Y. Aug. 21, 2007) (Sharpe, J., adopting report-recommendation of Lowe, M.J.); Muniz v. Goord, 04-CV-0479, 2007 WL 2027912, at *2 (N.D.N.Y. July 11, 2007) (McAvoy, J., adopting report-recommendation of Lowe, M.J.); DiProjetto v. Morris Protective Serv., 489 F.Supp.2d 305, 307 (W.D.N.Y.2007); Cosby v. City of White Plains, 04-CV-5829, 2007 WL 853203, at *3 (S.D.N.Y. Feb. 9, 2007); Lopez v. Wright, 05-CV-1568, 2007 WL 388919, at *3, n. 11 (N.D.N.Y. Jan. 31, 2007) (Mordue, C.J., adopting report-recommendation of Lowe, M.J.); Richards v. Goord, 04-CV-1433, 2007 WL 201109, at *5 (N.D.N.Y. Jan. 23, 2007) (Kahn, J., adopting report-recommendation of Lowe, M.J.); Ariola v. Onondaga County Sheriffs Dept., 04-CV1262, 2007 WL 119453, at *2, n. 13 (N.D.N.Y. Jan. 10, 2007) (Hurd, J., adopting report-recommendation of Lowe, M.J.); Collins v. Fed. Bur. of Prisons, 05-CV-0904, 2007 WL 37404, at *4 (N.D.N.Y. Jan. 4, 2007) (Kahn, J., adopting report-recommendation of Lowe, M.J.). .See Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 174 (2d Cir.2006) (\"[C]redibility, in the ordinary course of things, is for a fact-finder to evaluate.”); Stichting v. Schreiber, 407 F.3d 34, 55 (2d Cir.2005) (\"[T]o resolve at the summary judgment stage, and before Mead testifies, the question of whether a reasonable jury might believe Mead would, we think, amount to a credibility determination that we are not entitled to make.”); Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996) (at the summary judgment stage, the court \"is ... to eschew credibility assessments”); accord, Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996) (\"Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.”); accord, Jeffreys v. City" }, { "docid": "15047271", "title": "", "text": "opposing parties tell two different stories, one if which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.’ ” (Defs. Br. at 14, quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007).) However, “[i]t is a settled rule that ‘[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.’ ” McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.2006) (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997)); see also cases cited at page 536 above. The Court does not find Sash’s version of events to be so incredible, or in such discord with other evidence, as to find his allegations “wholly fanciful.” Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005) (“At the summary judgment stage, a nonmoving party ‘must offer some hard evidence that its version of the events is not wholly fanciful.’ ”); see, e.g., Bennett v. Falcone, 05 Civ. 1358, 2009 WL 816830 at *3-5 (S.D.N.Y. Mar. 25, 2009) (“Though Plaintiffs evidence is paper-thin — it consists primarily of his own testimony and [a witness’] account that [plaintiff] screamed out in pain — it is nevertheless sufficient to indicate the existence of a disputed material fact as to whether or not [the arresting officer] applied excessive force in effectuating Plaintiffs arrest.”); Moore v. Casselberry, 584 F.Supp.2d 580, 583-85 (W.D.N.Y.2008) (“[J]ust because the plaintiffs claim is based solely upon his own contradictory and incomplete testimony, that does not automatically entitle the defendants to summary judgment. The evidence must be such that no reasonable juror could believe it.”); Musso v. City of N.Y., No. 05 CV 2511, 2008 WL 3200208 at *1, 6 (E.D.N.Y. July 24, 2008) (denying summary judgment motion where plaintiff alleged that defendant officer punched her, drop-kicked her, and “rushed forward, flew in the air toward [her], kicked her with" }, { "docid": "2877567", "title": "", "text": "of New York, 426 F.3d 549, 554 (2d Cir.2005); see also Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996) (\"In apply [the summary judgment] standard, the court should not weigh evidence or assess the credibility of witnesses.”); accord, U.S. v. Rem, 38 F.3d 634, 644 (2d Cir. 1994). . Blake v. Race, 487 F.Supp.2d 187, 202 (E.D.N.Y.2007). . See, supra, note 62 of this Report-Recommendation. . Jeffreys, 426 F.3d at 554; Caraballo v. City of New York, 05-CV-8011, 2007 WL 1584202, at *6 (S.D.N.Y. May 31, 2007); Blake, 487 F.Supp.2d at 202; Dove v. City of New York, 03-CV-5052, 2007 WL 805786, at *5, 2007 U.S. Dist. LEXIS 18341, at *16 (E.D.N.Y. March 15, 2007); Chapel Park Villa, Ltd. v. The Travelers Ins. Co., Inc., 02-CV-0407, 2006 WL 2827867, at *7 (W.D.N.Y. Sept. 29, 2006); Allah v. Greiner, 03-CV-3789, 2006 WL 357824, at *2 (S.D.N.Y. Feb. 15, 2006). . (Dkt. No. 39, Part 12, at 8-10 [Ex. 8 to Seaman Affid.].) . (Dkt. No. 39, Part 11 [Ex. 8 to Seaman Affid.].) . (Dkt. No. 39, Part 6 [Ex. 2 to Seaman Affid.].) . (Dkt. No. 39, Part 43, at 2-3 [Ex. A to Kasulke Deck].) . (Dkt. No. 39, Parts 7-8 [Exs. 3-4 of Seaman Affid.].) . (Dkt. No. 39, Part 12, at 3-6 [Ex. 8 to Seaman Affid.].) . (Dkt. No. 1, ¶ 6, Attached Pages 3-8 [Plf.’s Verified Compl.].) . (Dkt. No. 39, Part 4, at 114-39 [Ex. A to Seaman Affid., attaching Plf.’s deposition transcript].) . Indeed, what appears improbable to me (based on the current record) is that, if the events had happened as McAdam described them in his Use of Force Report, those events would have resulted in the referenced red area to Plaintiff’s back and swelling to his lip. . See Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (\"The non-movant cannot ... defeat the motion [for summary judgment] through mere speculation or conjecture.”) [internal quotation marks and citation omitted]; Argus v. Eastman Kodak Co., 801 F.2d 38, 42 (2d Cir.1986) (\"[M]ere" }, { "docid": "3823000", "title": "", "text": "non-moving party cannot, however, “escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture.” W. World Ins. Co. v. Stack.Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (internal citation and quotation marks omitted). The role of the Court on a motion for summary judgment is not to ask whether “the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-moving party] on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).. Because the Court’s role is limited in this respect, it may not make factual findings, determine credibility of witnesses, or weigh evidence. See Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005); Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996); United States v. Rem, 38 ■ F.3d 634, 644 (2d Cir.1994). B. Failure To Negotiate in Good Faith As the Second Circuit noted, section 5 of the SOW created a binding preliminary agreement to negotiate the license agreement in good faith. See L-7 Designs II, 647 F.3d at 430. The parties agree, however, that Old Navy could abandon the deal as long as it first made a good faith effort to reach an agreement. (Defi’s Mot. for Summ. J. 15-16; Pl.’s Opp’n 20 (citing L-7 Designs II, 647 F.3d at 430-31)). L-7 contends that Old Navy breached the CSA and SOW “by failing to negotiate in good faith.” (Compl. ¶106). Old Navy moves for summary judgment on this claim. For the reasons described below, with respect to the failure to negotiate claim, I grant Old Navy’s motion for summary judgment. 1. Applicable Law Under New York law, “a binding preliminary agreement is one that expresses mutual commitment to a contract on agreed major terms, while recognizing the existence of open terms that remain to be negotiated.” Teachers Ins. & Annuity Ass’n of Am. v. Tribune Co., 670 F.Supp. 491, 498 (S.D.N.Y.1987). With this sort of agreement, “the parties" }, { "docid": "7182850", "title": "", "text": "Livingston, 791 F.2d 97, 100 n. 1 (8th Cir.1986) (“[W]hen the racially derogatory language is coupled with conduct infringing the prisoner’s right to security of his person, an inference arises that the conduct was motivated by racial bias.”). Defendants deny that Plaintiff was subjected to any racial slurs or physical abuse, but this is typically the type of credibility determination that must be left to a jury. See Jeffreys v. City of New, York, 426 F.3d 549, 553-54 (2d Cir.2005) (“‘Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.’ ”) (quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)); Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996) (“In applying [the summary judgment] standard, the court should not weigh evidence or assess the credibility' of witnesses.”); United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994) (“On a motion for summary judgment, the court is not to weigh the evidence, or assess the credibility of the witnesses, or resolve issues of fact, but only to determine- whether there are issues to be tried.”). Defendants raise a stronger argument in challenging the sufficiency of Plaintiffs evidence, as it is based almost entirely on Plaintiffs own, and at times vague, testimony. (Defs.’ Mem. at 13). Although the court accepts Plaintiffs sworn testimQny for purposes of summary judgment, “the non-moving party must produce more than a scintilla of admissible evidence that supports the pleadings.” Esmont v. City of New York, 371 F.Supp.2d, 202, 210 (E.D.N.Y.2005); see also First Natl Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289-90, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir.2003). Indeed, the , court may make some assessment of a plaintiffs accounts “in the rare' circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete.” Jeffreys, 426 F.3d at 554. However, this case is not one of those rare circumstances. In Jeffreys, the plaintiff" }, { "docid": "19479772", "title": "", "text": "sought.\" Johnson v. Killian , 680 F.3d 234, 236 (2d Cir. 2012) (internal citation omitted). The Court's job is not to \"weigh the evidence or resolve issues of fact.\" Lucente v. Int'l Bus. Machs. Corp. , 310 F.3d 243, 254 (2d Cir. 2002) ; see also Hayes v. N.Y. City Dep't of Corr. , 84 F.3d 614, 619 (2d Cir. 1996) (\"In applying th[e] [summary judgment] standard, the court should not weigh evidence or assess the credibility of witnesses.\"). \"Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.\" Jeffreys v. City of New York , 426 F.3d 549, 553-54 (2d Cir. 2005) (internal citation omitted). \"[T]he judge must ask ... not whether ... the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.\" Id. at 553 (quoting Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ); see also Battino v. Cornelia Fifth Ave. , LLC, 861 F.Supp.2d 392, 400 (S.D.N.Y. 2012) (\"To avoid summary judgment, all that is required of the non-moving party is a showing of sufficient evidence supporting the claimed factual dispute as to require a ... jury's resolution of the parties' differing versions of the truth.\" (citing Kessler v. Westchester Cty. Dep't of Soc. Servs. , 461 F.3d 199, 206 (2d Cir. 2006) ) ). III. DISCUSSION To establish a claim under Section 1983, a plaintiff must show that there has been a denial of a right, privilege, or immunity secured by the Constitution or laws of the United States and that the deprivation of such right occurred under the color of state law. See 42 U.S.C. § 1983 ; West v. Atkins , 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). \" Section 1983 does not in and of itself create substantive rights; rather, a plaintiff bringing a § 1983 claim must demonstrate a violation of an independent federal constitutional or statutory right.\" Watts v. N.Y. City Police Dep't , 100 F.Supp.3d 314," } ]

[ { "docid": "10186280", "title": "", "text": "a debtor free from any pressure brought by an individual creditor or interested party. It is the bankruptcy court alone that has the exclusive jurisdiction to determine questions involving the automatic stay. Id. at 799-800. See also In re Jones, 38 B.R. 690 (N.D. Ohio 1983) (Judge John W. Potter affirmed the bankruptcy court’s finding that Debtor’s ex-spouse’s contempt action in state court violated the injunction imposed by Debtor’s discharge). Furthermore, [t]he stay provisions of section 362 are automatic and self-operating and those who have knowledge of the pendency of a bankruptcy action and stay are bound to honor the stay unless and until it is properly lifted. NLT Computer Services Corporation v. Capital Computer Systems, Inc., 755 F.2d 1253, 1258 (6th Cir.1985) (citation omitted). A creditor who has acted in violation of the automatic stay and who fails to return the status quo after receiving notification of a Debtor’s petition and the automatic stay attendant thereto, is liable for damages resulting from his willful violation, including costs and attorney’s fees, and in certain situations, punitive damages. In re Holman, 92 B.R. 764 (Bkrtcy.S.D.Ohio 1988); Brock, 58 B.R. at 806 (since Debtor’s former wife was listed and was directly advised that her actions in seeking a contempt order were in violation of the bankruptcy court’s automatic stay, the court must conclude that her violation of the provisions of § 362(a) was willful); 11 U.S. C. § 362(h). The court, as previously discussed, finds that defendants received notice of Debtor’s petition. Yet, defendants pursued defendant Cherie’s motion for contempt in the domestic relations court. Defendants did not seek relief from stay prior to initiation or subsequent prosecution of the motion, nor did defendant Cherie seek determination of the dischargeability of the debts in issue through the initiation of an adversary proceeding in this court. Defendants are, therefore, in violation of the automatic stay attendant to the filing of Debtor’s petition. Debtor’s complaint is, then, well taken and Debtor should recover damages, pursuant to 11 U.S.C. § 362(h) resulting from defendants’ willful violation of stay. Debtor states that he has incurred legal" } ]

[ { "docid": "18519951", "title": "", "text": "willful violation of the automatic stay is entitled to recover actual damages, including costs and attorney fees, and, in appropriate circumstances, punitive damages. 11 U.S.C. § 362(h). In construing the provisions of § 362(h), courts have held that a “willful violation” does not require a specific intent to violate the automatic stay. In re Atlantic Business & Community Corp., 901 F.2d 325, 329 (3d Cir.1990); In re Bloom, 875 F.2d 224, 227 (9th Cir.1989). Rather, § 362(h) provides for damages upon a finding that the party knew of the automatic stay and that the party’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to property is not relevant to whether the act was “willful” or whether compensation must be awarded. Bloom, 875 F.2d at 227 (citations omitted). A specific purpose of the automatic stay is to allow a debtor in the initial period of a reorganization case to focus on plan preparation, filing, and execution, free from the burden of responding to any creditor activity not authorized by the Code. The specific language of § 362(h) augments the court’s authority to protect the debtor and the estate from being diminished by the amount of loss any unauthorized creditor activity causes the debtor or the estate. Such a loss would include the payment of attorney fees incurred by the debtor, which if not paid by the party who violated the stay, would diminish funds otherwise entitled to distribution through the estate or available as exempt property to the debtor. The choice of the mandatory word “shall” in § 362(h) and the purposes underlying the automatic stay compel the conclusion that an award against TranSouth is appropriate for its willful violation of the automatic stay. The amount of the award is subject to several factors. The issue of attorney fee awards pursuant to § 362(h) was analyzed in In re McLaughlin, 96 B.R. 554 (Bankr.E.D.Pa.1989), where the court observed that “rewarding debtors too lavishly in § 362(h) actions will encourage a cottage industry of precipitous § 362(h) litigation”, but also recognized" }, { "docid": "21168920", "title": "", "text": "S. Nat’l Bank of S.C. (In re Brockington), 129 B.R. 68, 70 (Bankr.D.S.C.1991). However, the majority of courts rely on the Supreme Court's language in Grogan v. Garner for the position that the preponderance of the evidence standard is more appropriate in this context. \"Because the preponderance-of-the-evidence standard result in a roughly equal allocation of the risk of error between litigants, we presume that this standard is applicable in civil actions between private litigants unless 'particularly important individual interests or rights are at stake.' \" Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Clayton v. King (In re Clayton), 235 B.R. 801, 807 n. 2 (Bankr.M.D.N.C.1998); see also, Hon. Barry Russell, Bankruptcy Evidence Manual, § § 301.46 (2005). . See In re Gagliardi, 290 B.R. at 820. . See In re Epperson, 189 B.R. 195, 197 (E.D.Mo.1995) (“Courts have uniformly refused to interpret section 362(a)(6) to prohibit a creditor from making any post-bankruptcy contact with a debtor.”)(emphases added); but see, In re Draper, 237 B.R. 502, 505 (Bankr.M.D.Fla.1999) (the court noted that several courts have held that the conduct prohibited by 11 U.S.C. § 362(a)(6) ranges from \"such informal contact as telephone calls or letters to more formal contact such as judicial or administrative proceedings\"). A key to this Court's ruling is that Debtor initiated the contact and Wells Fargo Bank responded to that contact. . See Brown v. Pennsylvania State Employees Credit Union, 851 F.2d 81, 86 (3rd Cir.1988) (\"The respite [provided by the automatic stay] is not from communication with creditors, but from the threat of immediate action by creditors, such as a foreclosure or a lawsuit.”). . See In re Shriver, 46 B.R. 626, 631 (Bankr.N.D.Ohio 1985) (stating \"if there was no need to resort to legal action such as in this case where the defendants offered to return the debtor to the status quo there are no grounds for attorney fees.”). . See In re Peterson, 297 B.R. at 470. . Wells Fargo Bank's contention that any communication with Debtors would constitute a violation of the automatic stay seems misplaced." }, { "docid": "18519946", "title": "", "text": "conclusion that Congress did not intend to afford protection from modification to such claims. This court recognizes the significant body of case law concerning good faith pursuant to § 1325(a)(3) discussed previously; however, it is important to recall that in this case and in Barnes, neither court concluded that the chapter 13 debtor proposed the plan in bad faith. In light of the language and structure of applicable chapter 13 provisions and, in the absence of a finding that the debtor’s plan was proposed in bad faith, this court declines to do indirectly what Congress de-dined to do directly. Although these cases require a fact specific analysis, this court is unable to create a judicial category that would prevent a Debtor from exercising a congressionally authorized option available to deal with a debt secured by a recently purchased vehicle. The Debtor’s plan will be confirmed. D. BURDEN OF PROOF As the party moving for damages for violation of the automatic stay pursuant to § 362(h), the court holds that the Debtor bears the burden of proof by the preponderance of the evidence. Unless “particularly important individual rights or interests are at stake”, the United States Supreme Court presumes the preponderance of the evidence standard is applicable in civil actions between private litigants because this standard results in a roughly equal allocation of the risk of error between litigants. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (citations omitted). Bankruptcy courts have consistently recognized the applicability of the preponderance of the evidence standard in cases in which the debtor alleges an automatic stay violation. See In re Meis-Nachtrab, 190 B.R. 302 (Bankr.N.D.Ohio 1995); Gordon v. Dennis Burlin Sales, Inc., 174 B.R. 257 (Bankr.N.D.Ohio 1994); In re Estep, 173 B.R. 126 (Bankr.N.D.Ohio 1994). Contempt proceedings are distinguishable from actions for damages brought pursuant to § 362(h), and a different burden of proof applies. In order for a party to be held in civil contempt, a court must find that the party violated a specific and definite court order and that the party had knowledge of" }, { "docid": "9567752", "title": "", "text": "the protections of the automatic stay. The record reveals that at the time of filing the Chapter 11 petition the debtor was effectively in possession of the radio station and transmitter with Cuf-fee’s permission, and therefore had an interest in property protected by section 362(a)(3). Cuffee took measures to evict ABCD from the premises by locking its employees out. Because ABCD’s possession of property, even under a tenancy at sufferance, is an interest protected by Section 362(a)(3), we agree with the district court that the actions taken by Cuffee violated the automatic stay provisions of Section 362(a)(3) of the Bankruptcy Code. B. The debtor seeks sanctions under Section 362(h) for Cuffee’s violation of the automatic stay. Cuffee argues that, even if this Court were to hold that he violated the automatic stay, his actions were not done in bad faith and should not be the basis for an assessment of compensatory damages, punitive damages, and attorney’s fees and costs. Section 362(h) of the Bankruptcy Code provides that “[a]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h) (1988) (emphasis added). Section 362(h) requires a finding of a willful violation of the stay. Cuffee contends that his actions were not willful within the meaning of Section 362(h). Cuffee’s position is untenable given the actions which he engaged in to evict his tenant. Although Section 362(h) refers to an individual, the section has uniformly been held to be applicable to a corporate debtor. See Budget Service Co. v. Better Homes of Va., 804 F.2d 289, 292 (4th Cir.1986). This court has not previously defined “willful” as it is used in subsection (h). A useful definition, with which we agree, was enunciated by the United States Court of Appeals for the Ninth Circuit in In Re Bloom, 875 F.2d 224, 227 (9th Cir.1989). In In Re Bloom, the Court held that: A ‘willful violation’ does not require a specific intent to violate the automatic stay. Rather, the statute" }, { "docid": "8727626", "title": "", "text": "effective at the moment a debtor’s bankruptcy petition is filed. 11 U.S.C. § 362(a). Once effective, the automatic stay applies to “all entities” and to “any act to collect, assess, or recover” a claim pursuant to § 362(a)(6). Unless otherwise ordered by the bankruptcy court, the protection afforded by the automatic stay continues until a discharge is granted or denied, or the case is closed or dismissed. § 362(c)(2). “[T]he legislative history makes clear that [§ 362(a)(6)] was intended to prevent creditors from harassing debtors after a petition is filed.u” NLT Computer Servs. Corp. v. Capital Computer Systems, Inc., 755 F.2d 1253, 1257 (6th Cir.1985) (citing House Report No. 95-595, 95th Cong., 1st Sess. 340-2 (1977), U.S.Code Cong. & Admin.News 1978, p. 5963; Senate Report No. 95-989, 95th Cong., 2nd Sess. 49-51 (1978); U.S.Code Cong. & Admin.News, p. 5787). From the evidence it was clear that the calls were meant to harass and intimidate the Debtors and were certainly intended to collect on ditech.com’s prepetition claim against the Debtors. In fact, this is the most egregious case concerning violation of the stay to come before this judge. Section 362(h) states: An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorney’s fees, and, in appropriate circumstances, may recover punitive damages. The term “willful,” while not defined in the Bankruptcy Code, has been interpreted to mean simply acting intentionally and deliberately while knowing of a pending bankruptcy. See, e.g., Cuffee v. Atlantic Business & Community Dev. Corp. (In re Atlantic Business & Community Corp.), 901 F.2d 325, 329 (3rd Cir.1990); Knaus v. Concordia Lumber Co. Inc. (In re Knaus), 889 F.2d 773, 775 (8th Cir.1989); In re Bloom, 875 F.2d 224, 227 (9th Cir.1989). Ditech.com’s request for notices in the case makes clear that it was functionally aware of the Debtors’ bankruptcy filing. Diteeh.com had notice of the bankruptcy— it received a Notice of the first meeting of creditors, and even sent a Notice of Appearance to the Court requesting notices be sent to it at a certain address. Its" }, { "docid": "16978336", "title": "", "text": "269 (1st Cir.1999) (explaining that any intentional act is willful with knowledge of the stay); Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989); see also Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2d Cir.1990); Cuffee v. Atlantic Bus. and Community Dev. Corp. (In re Atlantic Business and Community Corp.), 901 F.2d 325, 329 (3d Cir.1990). In cases where the creditor received actual notice of the automatic stay, courts must presume that the violation was deliberate. See Homer Nat’l Bank v. Namie, 96 B.R. 652, 654 (W.D.La.1989). The debtor has the burden of providing the creditor with actual notice. Where a party has actual knowledge of the bankruptcy, and despite such knowledge intentionally undertakes actions that in fact violate the stay, the party’s ignorance of the legal effect of the stay is no defense. In re Manuel, 212 B.R. 517 (Bankr.E.D.Va.1997); In re Peterkin, 102 B.R. 50, 53-54 (Bankr.E.D.N.C.1989). Debtor must establish by preponderance of the evidence that Defen dant willfully violated the automatic stay under § 362(k). E.g., In re Johnson, 501 F.3d 1163, 1171 (10th Cir.2007); see also Heghmann v. Indorf (In re Heghmann), 316 B.R. 395, 404-05 (1st Cir. BAP 2004). The debtor has the burden of providing the creditor with actual notice. Once the creditor receives actual notice, the burden shifts to the creditor to prevent violations of the automatic stay. See Mitchell Const Co., Inc. v. Smith (In re Smith), 180 B.R. 311, 319 (Bankr.N.D.Ga.1995). Applying this standard to the facts, the evidence produced at trial was sufficient to establish that Defendant sold the car post-petition. Trial testimony revealed that both Debtor’s counsel and Debtor called Defendant’s office; Debtor’s counsel spoke to Mr. Friedman on the phone in the evening of September 22, 2006; and Debtor’s counsel wrote a letter delivered by facsimile and mail demanding turnover of Debtor’s vehicle on September 22, 2006. Mr. Friedman or other employees of the Defendant never stated that the car was sold on September 22, 2006. Defendant produced no evidence to refute that the sale of" }, { "docid": "23515224", "title": "", "text": "was “willful” under 11 U.S.C. § 362(h). That provision reads: “An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” The Bank argues that its conduct was not willful because it did not have sufficient no tice of the reimposition of the stay. We must affirm the bankruptcy court’s factual finding that the Bank’s conduct was willful unless we conclude the finding was clearly erroneous. The Tenth Circuit has not defined “willful” as it is used in § 362(h). Many courts have adopted the definition enunciated by the court in INSLAW, Inc., v. United States (In re INSLAW, Inc.), 83 B.R. 89 (Bankr.D.D.C.1988): A “willful violation” does not require a specific intent to violate the automatic stay. Rather, the statute provides for . damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to the property is not relevant to whether the act was “willful” or whether compensation must be awarded. 83 B.R. at 165. See, e.g., Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989); Cuffee v. Atlantic Bus. and Community Dev. Corp. (In re Atlantic Bus. and Community Corp.), 901 F.2d 325, 329 (3rd Cir.1990). In the context of determining whether a debt is nondischargeable under § 523(a)(6) as arising from a “willful and malicious injury,” the Tenth Circuit construed “willful” to mean conduct that was “volitional and deliberate” and over which a debtor exercised meaningful control, as opposed to unintentional or accidental conduct. C.I.T. Fin. Servs., Inc., v. Posta (In re Posta), 866 F.2d 364, 367 (10th Cir. 1989). While the Supreme Court’s recent decision in Kawaauhau v. Geiger, —— U.S. -, ---, 118 S.Ct. 974, 977-78, 140 L.Ed.2d 90 (1998), rejected the Tenth Circuit’s interpretation of § 523(a)(6), see Berger v. Buck (In re Buck), 220 B.R. 999, 1004 (10th Cir. BAP 1998), we believe the Posta" }, { "docid": "4150049", "title": "", "text": "been committed.” U.S. Gypsum Co., 333 U.S. at 395, 68 S.Ct. 525; see also Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir.1990). This Court “cannot substitute its interpretation of the evidence for that of the [Bankruptcy Court] simply because [it] might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the [Bankruptcy Court] apparently deemed innocent.” Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 857-58, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (citation and internal quotation omitted). “If the [Bankruptcy Court’s] account of the evidence is plausible in light of the record viewed in its entirety, [this Court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (citations omitted). 1. Willful Conduct of IRS The Second, Third, Fourth, and Ninth Circuits have adopted a standard for assessing whether or not a violation of the automatic stay is willful under 11 U.S.C. § 362(h). A “willful violation” does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to the property is not relevant to whether the act was “willful” or whether compensation must be awarded. Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989) (quoting INSLAW, Inc. v. United States, 83 B.R. 89, 165 [Bankr. D.D.C.1988]); see also In re Bulldog Trucking, Inc., 68 F.3d 459, 1995 WL 613043 *3 (4th Cir. Oct. 19, 1995); In re Atlantic Business & Community Corp., 901 F.2d 325, 329 (3rd Cir.1990); Crysen/Montenay Energy Co. v. Esselen Assoc., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2nd" }, { "docid": "11722724", "title": "", "text": "violation' does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to the property is not relevant....” Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989) (quotation omitted). It is undisputed that Northern Stevedoring had knowledge of the stay and therefore acted \"willfully.\" . Chugach initially argued that it was entitled to sanctions as a matter of law under § 362(h) of the Bankruptcy Code, which requires bankruptcy courts to award damages to \"[a]n individual injured by any willful violation of a stay....” 11 U.S.C. § 362(h). As Chugach recognized in its reply brief, however, we recently held that § 362(h) does not apply to corporations. See Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 618-20 (9th Cir.1993). Nevertheless, bankruptcy courts retain discretion to award damages to injured corporate debtors as a sanction for willful violations of the stay. Id. at 620. As a result, if Northern Stevedoring did violate § 362(a), a remand would be necessary to give the bankruptcy court the opportunity to exercise that discretion. . Two bankruptcy courts in the Ninth Circuit have, however, applied the “unusual circumstances” exception. See Circle K Corp. v. Marks (In re Circle K Corp.), 121 B.R. 257, 261 (Bankr.D.Ariz.1990) (staying litigation against officers of the debtor); Maxicare Health Plans, Inc. v. Centinela Mammoth Hospital (In re Family Health Servs.), 105 B.R. 937, 942 (Bankr.C.D.Cal.1989) (staying litigation against nondebtor members of debtor health maintenance organizations). . Even if the “unusual circumstances” rationale was applicable, Chugach would have an additional, insurmountable problem. As the Sixth Circuit recently noted after surveying cases that have applied the A.H. Robins exception, \"such extensions, although referred to as extensions of the automatic stay, were in fact injunctions issued by the bankruptcy court after hearing and the establishment of unusual need to take this action to protect the administration of" }, { "docid": "21289971", "title": "", "text": "M & M had sufficient knowledge of Debtors’ Chapter 13 petition to willfully violate § 362. A. Standard of Proof The burden of proof needed to establish a willful violation under § 362(k)(l) is less than certain in this circuit. Compare In re Sullivan, 357 B.R. 847, 854 n. 21 (Bankr.D.Colo.2006) (employing preponderance of the evidence test, but noting “ ‘difference of opinion among the courts regarding the proper standard of evidence to be used in an action to impose sanctions under § 362(h))’ ” (quoting Clayton v. King (In re Clayton), 235 B.R. 801, 807 n. 2 (Bankr.M.D.N.C.1998)), with Diviney v. NationsBank of Texas (In re Diviney), 211 B.R. 951, 961 (Bankr.N.D.Okla.1997), aff'd 225 B.R. 762 (BAP 10th Cir.1998) (applying clear and convincing standard). Indeed, the BAP decision at issue on appeal pointed out the intra-circuit divergent positions. Unfortunately, its attempt to resolve the issue only further jumbled it. The BAP decision here correctly concluded that willful violations of the automatic stay provision must be established by a preponderance of the evidence. In arriving at this conclusion, the panel suggested that the Diviney panel’s choice of the clear and convincing standard was merely applying, without considering, the standard employed by the district court in that case. A plain reading of Diviney belies that assertion. In view of our affir-mance of the BAP’s correct application of the preponderance of the evidence standard, we make clear that Diviney incorrectly applied the wrong standard of proof. In Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991), the Supreme Court stated: “Because the preponderance-of-the-evidence standard results in a roughly equal allocation of the risk of error between litigants, we presume that this standard is applicable in civil actions between private litigants unless ‘particularly important individual interests or rights are at stake.’ ” Id. at 286, 111 S.Ct. 654 (quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 389, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983) (citing cases concerning termination of parental rights, civil commitment, and deportation as examples of “particularly important individual interests or rights”)). In Grogan, fraud victims" }, { "docid": "18519950", "title": "", "text": "TranSouth relies upon In re Bennett, 135 B.R. 72 (Bankr.S.D.Ohio 1992) for the proposition that the Debtor must prove a violation of the stay by clear and convincing evidence, but this reliance is misplaced. Although In re Bennett does state that “[t]he moving party bears the burden of proof in an action for violation of the stay and must prove his case by clear and convincing evidence”, the cases cited by the Bennett court as support for the quoted statement were civil contempt proceedings. Specifically, the Bennett court relied upon Brockington v. Citizens and Southern Nat’l Bank of South Carolina (In re Brockington), 129 B.R. 68, 70 (Bankr.D.S.C.1991), In re Zunich, 88 B.R. 721 (Bankr.W.D.Pa.1988), and In re Wagner, 74 B.R. 898 (Bankr.E.D.Pa.1987), each of which involved civil contempt proceedings. The Bennett court would have correctly applied the clear and convincing burden of proof standard in a civil contempt proceeding, but the applicable burden of proof in a stay violation damage proceedings is a preponderance of the evidence. E. DAMAGES An individual injured by a willful violation of the automatic stay is entitled to recover actual damages, including costs and attorney fees, and, in appropriate circumstances, punitive damages. 11 U.S.C. § 362(h). In construing the provisions of § 362(h), courts have held that a “willful violation” does not require a specific intent to violate the automatic stay. In re Atlantic Business & Community Corp., 901 F.2d 325, 329 (3d Cir.1990); In re Bloom, 875 F.2d 224, 227 (9th Cir.1989). Rather, § 362(h) provides for damages upon a finding that the party knew of the automatic stay and that the party’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to property is not relevant to whether the act was “willful” or whether compensation must be awarded. Bloom, 875 F.2d at 227 (citations omitted). A specific purpose of the automatic stay is to allow a debtor in the initial period of a reorganization case to focus on plan preparation, filing, and execution, free from the burden of responding to any creditor" }, { "docid": "13803692", "title": "", "text": "this court’s finding that the insurance proceeds are property of the estate, the Trustee is also entitled to interest pursuant to 28 U.S.C. § 1961(a) from the date of his initial demand on Fidelity, February 3, 1994. The Trustee is also entitled to the costs of filing this proceeding. B. DETERMINATION OF THE EXTENT OF THE AUTOMATIC STAY The automatic stay prevents any action to exercise control over property of a debtor’s estate. 11 U.S.C. § 362(a)(3). An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. 11 U.S.C. § 362(h). A “willful violation” does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to the property is not relevant to whether the act was “willful” or whether compensation must be awarded. Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989) (quoting INSLAW, Inc. v. United States (In re INSLAW, Inc.), 83 B.R. 89, 165 (Bankr.D.D.C.1988)). See also Tsafaroff v. Taylor (In re Taylor), 884 F.2d 478, 482 (9th Cir.1989); Smith v. GTE North Inc. (In re Smith), 170 B.R. 111 (Bankr.N.D.Ohio 1994). Having determined that the casualty insurance proceeds are property of the debt- or’s chapter 13 estate, the court finds that Fidelity has violated the automatic stay by exercising control over these funds. Further, based upon the facts in this proceeding the violation was willful. Despite Fidelity’s knowledge that the insurance contract provided for payment to the respective interests of Fidelity and the debtor, Fidelity’s knowledge that its claim was governed by the debtor’s confirmed chapter 13 plan, and Fidelity’s knowledge that it had entered into an agreed order in the debtor’s case, Fidelity retained the proceeds. Fidelity intentionally retained the insurance proceeds after the Trustee made repeated demands claiming that the proceeds" }, { "docid": "18519947", "title": "", "text": "proof by the preponderance of the evidence. Unless “particularly important individual rights or interests are at stake”, the United States Supreme Court presumes the preponderance of the evidence standard is applicable in civil actions between private litigants because this standard results in a roughly equal allocation of the risk of error between litigants. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (citations omitted). Bankruptcy courts have consistently recognized the applicability of the preponderance of the evidence standard in cases in which the debtor alleges an automatic stay violation. See In re Meis-Nachtrab, 190 B.R. 302 (Bankr.N.D.Ohio 1995); Gordon v. Dennis Burlin Sales, Inc., 174 B.R. 257 (Bankr.N.D.Ohio 1994); In re Estep, 173 B.R. 126 (Bankr.N.D.Ohio 1994). Contempt proceedings are distinguishable from actions for damages brought pursuant to § 362(h), and a different burden of proof applies. In order for a party to be held in civil contempt, a court must find that the party violated a specific and definite court order and that the party had knowledge of the order sufficient to put such party on notice of the proscribed conduct. Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977). The moving party in an action for civil contempt must prove his case by clear and convincing evidence. In re Mack, 46 B.R. 652 (Bankr.E.D.Pa.1985). Upon a finding of civil contempt, a court may impose a fine or in terrorem damages in order to coerce compliance with its orders and may also award damages to compensate the aggrieved party for any actual loss suffered, including attorney’s fees and costs. In re Wagner, 74 B.R. at 902 citing Matter of Depoy, 29 B.R. 466 (Bankr.E.D.Pa.1983). Civil contempt is the remedy which was ordinarily invoked by parties aggrieved by a violation of the automatic stay prior to the enactment of § 362(h). See Kennedy, The Automatic Stay in Bankruptcy, 11 U.Mich.J.L.Reform 177, 259-66 (1977). Section 362(h) was added to the Bankruptcy Code by the Bankruptcy Amendments and Federal Judgeship Act" }, { "docid": "6880320", "title": "", "text": "§ 541. The estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” Id.; see United States v. Whiting Pools, Inc., 462 U.S. 198, 203-205, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). Smith acquired an interest in the subject mobile home on September 24, 2001, when she entered into a contract to purchase the mobile home. That contractual interest became property of the estate at the time she filed her petition in bankruptcy. Therefore, by taking possession of the mobile home after the filing of the petition in bankruptcy, the Defendants committed a violation of the automatic stay. b. DAMAGES 1. Actual Damages Having found a violation of the automatic stay, the Court next considers whether an award of damages is appropriate. Section 362(h) provides that “[a]n individual injured by any willful violation of the automatic stay shall recover actual damages, including costs and attorney’s fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h). Because the Court has found, as a factual matter, that the violation of the automatic stay was willful, it must award Smith actual damages as well as costs,.and attorney’s fees. In a recent decision of the United States Court of Appeals for the First Circuit, the question of whether a violation of the automatic stay was willful stated as follows: A willful violation [of the automatic stay] does not require a specific intent to violate the automatic stay. The standard for a willful violation of the automatic stay under § 362(h) is met if there is knowledge of the stay and the defendant intended the actions which constituted the violation. See Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989); see also Crysen/Montenay Energy Co v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2nd Cir.1990); Cuffee v. Atlantic Bus. and Community Dev. Corp. (In re Atlantic Business and Community Corp.), 901 F.2d 325, 329 (3d Cir.1990). In cases where the creditor received actual notice of the automatic stay, courts must presume that the violation was" }, { "docid": "18805210", "title": "", "text": "subsequent to the DIP’s second amended disclosure statement, including the fact that the DIP had conveyed the Bond without the approval of creditors or this Court. THE DIP’S MOTION TO DISMISS Applicable Statute Section 1112(b) provides, in pertinent part, that: on request of a party in interest or the United States trustee, and after notice and a hearing, the court may convert a case under this chapter to a ease under chapter 7 of this title or may dismiss a case under this chapter, whichever is in the best interest of creditors and the estate for cause, including— (1) continuing loss to or diminution of the estate and absence of a reasonable likelihood of rehabilitation; (2) inability to effectuate a plan; (8)unreasonable delay by the debtor that is prejudicial to creditors[.] Burden of Proof The DIP bears the burden of proof on its motion by the preponderance of the evidence. In re A-K Enterprises, Inc., 111 B.R. 149 (Bankr.N.D.Ohio 1990); c.f. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (stating that “[b]eeause the preponderance-of-the-evidence standard results in a roughly equal allocation of the risk of error between litigants, [the Supreme Court] presume[s] that this standard is applicable in civil actions between private litigants unless ‘particularly important individual interests or rights are at stake.’”) (quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 389-90, 103 S.Ct. 683, 691-92, 74 L.Ed.2d 548 (1983)) (other citations omitted). The Court cannot agree with the DIP that the fact that the “Court of Appeals for the Sixth Appellate District has granted a stay of execution and approved a property bond in the litigation involving the largest creditor, Ralph Cordes” represents “cause” for dismissal. See DIP’s Motion to Dismiss, p. 1. The mere fact that the DIP will be permitted a stay of execution on Cordes’ judgment in the Contract Action, similar to that which it has enjoyed since the Petition Date pursuant to § 362, does not represent “cause” for dismissal. Nor does the fact that the Arbitration Agreement may adequately protect the interests of both the DIP" }, { "docid": "108925", "title": "", "text": "does not apply. See, e.g., Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 620 (9th Cir.1993); Computer Communications, 824 F.2d at 731; In re Sielaff, 164 B.R. 560, 568 (Bankr.W.D.Mich.1994) (finding that civil contempt and § 362(h) provide alternate grounds for imposing sanctions where the debtor is an individual). The bankruptcy discharge operates as a permanent injunction against all attempts by a creditor to collect a discharged debt. See, e.g., Costa v. Welch (In re Costa), 172 B.R. 954, 963 (Bankr.E.D.Cal.1994). In this case, there was also a specific court order enjoining all creditors (including Associates) from “in stituting or continuing any action or employing any process or engaging in any act to collect [any prepetition] debts as personal liabilities of the ... debtor[s].” Associates violated both the statutory discharge injunction and the specific discharge order in this case. Thus Associates violated both the automatic stay and the discharge injunction. Associates does not contest the authority of the court to impose contempt sanctions for these violations. 2. Liability under § 362(h) Entirely separate from the contempt power, § 362(h) authorizes the imposition of sanctions for willful violations of the automatic stay, where the debtor is an individual. There is no provision under § 524 analogous to § 362(h). Section 362(h) 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, in appropriate circumstances, may recover punitive damages. A recovery under this section is available only to individual debtors, a condition that is satisfied in this case. For the purposes of § 362(h), the Ninth Circuit has defined “willful” as follows: A “willful violation” does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to [take the action it did] is not relevant to whether the act was “willful” or whether compensation" }, { "docid": "16978335", "title": "", "text": "A. Defendant’s sale of Debtor’s vehicle constitutes a willful violation of the automatic stay. Section 362(a) provides protection of the automatic stay against the debtor or property of the estate. Automatic stay protection coincides with the commencement of the debtor’s bankruptcy petition. Because the pawn transaction is void, the next question before the Court is whether Defendant sold Debtor’s vehicle prior to the commencement of her bankruptcy filing. The timing of the sale of the vehicle in relation to Debtor’s bankruptcy filing is critical to the question of whether Defendant’s sale of Debtor’s vehicle constituted a willful violation of the automatic stay pursuant to 11 U.S.C. § 362(k)(l). Until the bankruptcy petition is filed, there is no automatic stay protection. A willful violation does not require a specific intent to violate the automatic stay. The standard for a willful violation of the automatic stay under § 362(k) is met if there is knowledge of the stay and the defendant intended the actions which constitute the violation. Fleet Mortgage Group, Inc. v. Kaneb, 196 F.3d 265, 269 (1st Cir.1999) (explaining that any intentional act is willful with knowledge of the stay); Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989); see also Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2d Cir.1990); Cuffee v. Atlantic Bus. and Community Dev. Corp. (In re Atlantic Business and Community Corp.), 901 F.2d 325, 329 (3d Cir.1990). In cases where the creditor received actual notice of the automatic stay, courts must presume that the violation was deliberate. See Homer Nat’l Bank v. Namie, 96 B.R. 652, 654 (W.D.La.1989). The debtor has the burden of providing the creditor with actual notice. Where a party has actual knowledge of the bankruptcy, and despite such knowledge intentionally undertakes actions that in fact violate the stay, the party’s ignorance of the legal effect of the stay is no defense. In re Manuel, 212 B.R. 517 (Bankr.E.D.Va.1997); In re Peterkin, 102 B.R. 50, 53-54 (Bankr.E.D.N.C.1989). Debtor must establish by preponderance of the evidence that Defen dant willfully violated the" }, { "docid": "9567753", "title": "", "text": "a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h) (1988) (emphasis added). Section 362(h) requires a finding of a willful violation of the stay. Cuffee contends that his actions were not willful within the meaning of Section 362(h). Cuffee’s position is untenable given the actions which he engaged in to evict his tenant. Although Section 362(h) refers to an individual, the section has uniformly been held to be applicable to a corporate debtor. See Budget Service Co. v. Better Homes of Va., 804 F.2d 289, 292 (4th Cir.1986). This court has not previously defined “willful” as it is used in subsection (h). A useful definition, with which we agree, was enunciated by the United States Court of Appeals for the Ninth Circuit in In Re Bloom, 875 F.2d 224, 227 (9th Cir.1989). In In Re Bloom, the Court held that: A ‘willful violation’ does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to the property is not relevant to whether the act was ‘willful’ or whether compensation must be awarded. In Re Bloom, 875 F.2d at 227 [quoting INSLAW, Inc. v. United States, 83 B.R. 89, 165 (Bankr.D.D.C.1988).] See also Budget Service Co. v. Better Homes of Va., 804 F.2d 289, 290 (4th Cir.1986) (“Sanctions were properly assessed against lessor for willful violation of automatic stay, based on ample evidence to support conclusion that lessor knew of pending petition and intentionally attempted to repossess vehicles in spite of it.”). The bankruptcy courts have construed “willful” as used in the code to mean an intentional or deliberate act done with knowledge that the act is in violation of the stay. See In Re Tel-A-Communications Consultants, Inc., 50 B.R. 250, 254 (Bankr.D.Conn.1985); In Re Forty-Eight Insulations, Inc., 54 B.R. 905, 909 (Bankr.N.D.Ill.1985)." }, { "docid": "6880321", "title": "", "text": "matter, that the violation of the automatic stay was willful, it must award Smith actual damages as well as costs,.and attorney’s fees. In a recent decision of the United States Court of Appeals for the First Circuit, the question of whether a violation of the automatic stay was willful stated as follows: A willful violation [of the automatic stay] does not require a specific intent to violate the automatic stay. The standard for a willful violation of the automatic stay under § 362(h) is met if there is knowledge of the stay and the defendant intended the actions which constituted the violation. See Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989); see also Crysen/Montenay Energy Co v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2nd Cir.1990); Cuffee v. Atlantic Bus. and Community Dev. Corp. (In re Atlantic Business and Community Corp.), 901 F.2d 325, 329 (3d Cir.1990). In cases where the creditor received actual notice of the automatic stay, courts must presume that the violation was deliberate. See Homer Nat'l Bank v. Namie, 96 B.R. 652, 654 (W.D.La.1989). The debtor has the burden of providing the creditor -with actual notice. Once the creditor receive actual notice, the burden shifts to the creditor to prevent violations of the automatic stay. See Mitchell Const. Co., Inc., v. Smith (In re Smith), 180 B.R. 311, 319 (Bankr.N.D.Ga.1995). Fleet Mortg. Group, Inc. v. Kaneb, 196 F.3d 265, 269 (1st Cir.1999) (bracketed matter added); see also Jove Engineering, Inc. v. Internal Revenue Service, 92 F.3d 1539, 1555 (11th Cir.1996) (“willfulness generally connotes intentional action taken with at least callous indifference for the consequences”). In Kaneb, the First Circuit, let stand an award of $25,000.00 for “emotional distress” as a result of the wrongful filing of a complaint to foreclose a mortgage. In re Kaneb, 196 F.3d at 270. After Kaneb filed a Chapter 13 petition in bankruptcy, Fleet Mortgage moved for relief from the automatic stay. The motion was denied by the bankruptcy court. As a result of a miscommunication among counsel, a foreclosure complaint was" }, { "docid": "9419249", "title": "", "text": "property is not relevant to a determination of whether the violation was willful. See Tsafaroff v. Taylor (In re Taylor), 884 F.2d 478, 483 (9th Cir.1989), (quoting INSLAW, Inc. v. United States (In re INSLAW, Inc.), 83 B.R. 89, 165 (Bankr.D.D.C.1988)). A willful violation does not require a specific intent to violate the automatic stay. The standard for a willful violation of the automatic stay under § 362(h) is met if there is knowledge of the stay and the defendant intended the actions which constituted the violation. See Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989); see also Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2d Cir.1990); Cuffee v. Atlantic Bus. and Community Dev. Corp. (In re Atlantic Business and Community Corp.), 901 F.2d 325, 329 (3d Cir.1990). In cases where the creditor received actual notice of the automatic stay, courts must presume that the violation was deliberate. See Homer Nat’l Bank v. Namie, 96 B.R. 652, 654 (W.D.La.1989). The debtor has the burden of providing the creditor with actual notice. Once the creditor receives actual notice, the burden shifts to the creditor to prevent violations of the automatic stay. See Mitchell Const. Co., Inc. v. Smith (In re Smith), 180 B.R. 311, 319 (Bankr.N.D.Ga.1995). The parties do not contest that Shawmut received actual notice of the automatic stay. Indeed, the record reveals that Shawmut unsuccessfully filed a motion for relief from the stay. After the bankruptcy court’s denial of the motion for relief, Shawmut retained the law firm of Shapiro & Fishman to initiate foreclosure proceedings. Although Fleet received notice of a violation when Kaneb’s attorney informed Shapiro & Fishman of the stay, Fleet’s counsel failed to dismiss the suit for six weeks. Under the applicable standard, Fleet’s actions constitute a willful violation of the automatic stay. III. Fleet challenges generally the sufficiency of the evidence of harm and causation for the $25,000 award for mental anguish and argues specifically that a showing of mental anguish requires physical injury or corroborating medical testimony. We decline to" } ]

[ { "docid": "22747468", "title": "", "text": "these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. Cf. Mendoza-Martinez, 372 U. S., at 169 (whether sanction appears excessive in relation to its non-punitive purpose is relevant to determination whether sanction is civil or criminal). We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution. We acknowledge that this inquiry will not be an exact pursuit. In our decided cases we have noted that the precise amount of the Government’s damages and costs may prove to be difficult, if not impossible, to ascertain. See, e. g., Rex Trailer, 350 U. S., at 153. Similarly, it would be difficult if not impossible in many cases for a court to determine the precise dollar figure at which a civil sanction has accomplished its remedial purpose of making the Government whole, but beyond which the sanction takes on the quality of punishment. In other words, as we have observed above, the process of affixing a sanction that compensates the Government for all its costs inevitably involves an element of rough justice. Our upholding reasonable liquidated damages clauses reflects this unavoidable imprecision. Similarly, we have recognized that in the ordinary case fixed-penalty-plus-double-damages provisions can be said to do no more than make the Government whole. We cast no shadow on these time-honored judgments. What we announce now is a rule for the rare case, the case such as the one before us, where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused. The rule is one of reason: Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no" } ]

[ { "docid": "22688481", "title": "", "text": "the fact he actually defrauded the Government of less than $600. However, the District Court, concluded that a penalty of this magnitude would violate the Double Jeopardy Clause in light of Halper’s previous criminal conviction. While explicitly recognizing that the statutory damages provision of the Act “was not itself a criminal punishment,” the District Court nonetheless concluded that application of the full penalty to Halper would constitute a second “punishment” in violation of the Double Jeopardy Clause. 490 U. S., at 438-439. On direct appeal, this Court affirmed. As the Halper Court saw it, the imposition of “punishment” of any kind was subject to double jeopardy constraints, and whether a sanction constituted “punishment” depended primarily on whether it served the traditional “goals of punishment,” namely, “retribution and deterrence.” Id., at 448. Any sanction that was so “overwhelmingly disproportionate” to the injury caused that it could not “fairly be said solely to serve [the] remedial purpose” of compensating the Government for its loss, was thought to be explainable only as “serving either retributive or deterrent purposes.” See id., at 448-449 (emphasis added). The analysis applied by the Halper Court deviated from our traditional double jeopardy doctrine in two key respects. First, the Halper Court bypassed the threshold question: whether the successive punishment at issue is a “criminal” punishment. Instead, it focused on whether the sanction, regardless of whether it was civil or criminal, was so grossly disproportionate to the harm caused as to constitute “punishment.” In so doing, the Court elevated a single Kennedy factor — whether the sanction appeared excessive in relation to its nonpunitive purposes — to dispositive status. But as we emphasized in Kennedy itself, no one factor should be considered controlling as they “may often point in differing directions.” 372 U. S., at 169. The second significant departure in Halper. was the Court’s decision to “asses[s] the character of the actual sanctions imposed,” 490 U. S., at 447, rather than, as Kennedy demanded, evaluating the “statute on its face” to determine whether it provided for what amounted to a criminal sanction, 372 U. S., at 169. We" }, { "docid": "19715067", "title": "", "text": "civil forfeiture pro-eeeding. Therefore, the issue is whether this civil forfeiture proceeding constitutes a second punishment under the Double Jeopardy Clause. Halper holds that when a civil remedy that can be considered punitive or remedial is sought after a criminal punishment, and is sought not to compensate the government, but solely as punishment, the Double Jeopardy Clause is implicated. 490 U.S. at 449, 109 S.Ct. at 1902. However, the Halper court limited its holding to “the rare case, the case such as the one before [it], where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused.” Id. The Supreme Court then explicitly determined, in a plurality opinion in Austin v. U.S., — U.S. -, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), that civil forfeiture under 21 U.S.C. § 881(a)(7) — the section relevant to this court’s analysis — constitutes, at least in part, punishment. See Austin, — U.S. at -, 113 S.Ct. at 2810 (addressing whether civil forfeiture violates the Excessive Fines Clause of the Eighth Amendment, the plurality recognized that a civil sanction can serve many purposes — remedial, retributive, or deterrent — but that the civil sanction permitted by 21 U.S.C. § 881(a)(7) also imposes punishment). Therefore, Oliva’s contention that a civil forfeiture proceeding following a criminal conviction based on the same facts violates the Double Jeopardy Clause is not ill-grounded. However, despite the result that the Austin holding would seem to dictate in this ease, the Supreme Court’s finding that civil forfeiture under 21 U.S.C. § 881(a)(7) constitutes punishment does not end the inquiry, for the Eleventh Circuit has also spoken on this precise issue. In U.S. v. One Single Family Residence Located at 18755 North Bay Road, the Elev enth Circuit had occasion to determine whether a civil forfeiture proceeding “violates the Double Jeopardy Clause of the Fifth Amendment because [the claimant] had been previously punished in connection with his criminal conviction for the same gambling offense upon which th[e] forfeiture [wa]s based.” 13 F.3d 1493, 1499 (11th Cir.1994). The claimant in 18755 North Bay" }, { "docid": "1146747", "title": "", "text": "315, 558 A.2d 715 (1989). Some of the federal cases involved forfeiture statutes against real and personal property and distinguish Halper on that ground. Other cases are factually inapplicable or contain dicta. The Double Jeopardy Clause of the Fifth Amendment protects against three abuses; (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The third of these protections is the one which Plaintiffs claim the D.O.R. has violated by making a substantial tax assessment when Plaintiff/Debtors were convicted of the crime on which the tax is based. Basically, Plaintiffs argue that the imposition of this penalty, although done pursuant to a “civil” procedure, is in reality a further punishment for the criminal conduct to which each Debtor pled guilty. In making its argument, Plaintiffs rely on the recent decision of the United States Supreme Court in United States v. Halper, supra. In Halper, the Court considered the question of “whether and under what circumstances a civil penalty may constitute punishment for purposes of the Double Jeopardy Clause.” Id. 490 U.S. at 446, 109 S.Ct. at 1901. A unanimous court held that “a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can be explained only as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.” Id. 490 U.S. at 448, 109 S.Ct. at 1902. The Double Jeopardy Clause, the court went on to hold, prohibits the imposition of such a civil sanction “to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” Id. It is implicated when “the sanction [is] overwhelmingly disproportionate to the damages [defendant] has caused.” Id. In determining the purpose behind a civil sanction, the Court must look at more than just the language of the statute itself. As the Halper court stated: “... [W]hile recourse to" }, { "docid": "22688499", "title": "", "text": "is wholly absent in this ease, however, because the criminal indictment followed administrative sanctions. There can be no doubt that any fine or sentence imposed on the criminal counts would be “punishment.” If the indictment charged the same offense for which punishment had already been imposed, the prosecution itself would be barred by the Double Jeopardy Clause no matter how minor the criminal sanction sought in the second proceeding. Thus, the concerns that the Court identifies merely emphasize the accuracy of the comment in Halper itself that it announced “a rule for the rare ease .. . where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused.” 490 U. S., at 449. Ill Despite my disagreement with the Court’s decision to use this case as a rather lame excuse for writing a gratuitous essay about punishment, I do agree with its reaffirmation of the central holding of Halper and Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767 (1994). Both of those cases held that sanctions imposed in civil proceedings constituted “punishment” barred by the Double Jeopardy Clause. Those holdings reconfirmed the settled proposition that the Government cannot use the “civil” label to escape entirely the Double Jeopardy Clause’s command, as we have recognized for at least six decades. See United States v. La Franca, 282 U. S. 568, 574-575 (1931); Helvering v. Mitchell, 303 U. S. 391, 398-399 (1938). That proposition is extremely important because the States and the Federal Government have an enormous array of civil administrative sanctions at their disposal that are capable of being used to punish persons repeatedly for the same offense, violating the bedrock double jeopardy principle of finality. “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety" }, { "docid": "9582037", "title": "", "text": "imposed a prison sentence and a fine. See Halper, 490 U.S. at 437, 109 S.Ct. at 1895-96. Thereafter, the government brought a civil suit against Dr. Halper under the False Claims Act, 31 U.S.C. §§ 3729-3730, seeking to recover damages plus a penalty equal to $2,000 per violation. The district judge, after contrasting the extent of the government’s claim for these items ($131,170) with the provable amount of the loss occasioned by Dr. Halper’s defalcations ($585), awarded the government $16,000. The judge reasoned that a more munificent award would be so disproportionate as to constitute punishment and would therefore raise double jeopardy questions. See Halper, 490 U.S. at 438-39, 109 S.Ct. at 1896-97. The Supreme Court ultimately accepted this reasoning, finding double jeopardy to be a matter of concern “where a fixed-penalty provision subjects a[n] ... offender to a sanction overwhelmingly disproportionate to the damages he has caused.” Id. at 449, 109 S.Ct. at 1902. The Halper Court offered some insights into when particular civil penalties might be regarded as punishments in the relevant sense. Making such a determination “requires a particularized assessment of the penalty imposed and the purposes the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.” Id. at 448, 109 S.Ct. at 1901-02. Withal, Halper did not brand every monetary penalty exceeding actual financial loss as punitive per se. To the contrary, the Court stated that “the Government is entitled to rough remedial justice, that is, it may demand compensation according to somewhat imprecise formulas, such as reasonable liquidated damages or a fixed sum plus double damages, without being deemed to have imposed a second punishment for the purpose of double jeopardy analysis.” Id. at 446, 109 S.Ct. at 1900. It is only whén the recovery is “not rationally related to the goal of making the Government whole” that the prospect of multiple punishment looms. Id. at 451, 109 S.Ct. at 1903. It is in this context that the Halper dichotomy surfaced:" }, { "docid": "13462982", "title": "", "text": "Court held that under certain circumstances a civil penalty may be a punishment for purposes of the double-jeopardy clause. Irwin Halper filed sixty-five false medical-insurance claims, for which he was convicted under the criminal false-claims statute, 18 U.S.C. § 287. The government then brought a civil action against him under the False Claims Act, 31 U.S.C. §§ 3729-3731. Although his false claims resulted in a total overpayment of only $585, the statute authorized the recovery of more than $130,000 in penalties. 490 U.S. at 439, 109 S.Ct. at 1896. The Court held that the double-jeopardy clause protected a defendant who has already been punished in a criminal prosecution from being subjected to an additional civil sanction “to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” Id., at 448-49, 109 S.Ct. at 1902.. However,'the Court limited its holding to “the rare case * * * where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused.” Id, at 449, 109 S.Ct. at 1902. We applied Halper’s rationale to a civil forfeiture in Whalers Cove. 954 F.2d at 37-38. The Whalers Cove defendant twice sold cocaine inside his condominium to an informant for a total of $250. He was convicted in state court of attempted criminal sale of a controlled substance and received a probationary sentence and a small fine. A few weeks later, the government instituted a civil forfeiture proceeding against the condominium in which the defendant had an equity interest of approximately $68,000. Id. at 32. This court noted that “[w]here the seized property is not itself an instrumentality of crime * * * and its total value is overwhelmingly disproportionate to the value of controlled substances involved in the statutory violation, there is a rebuttable presumption that the forfeiture is punitive in nature.” Id. at 36 (emphasis in original). The government would limit Halper and Whalers Cove to civil forfeitures that follow criminal prosecutions; defendants respond that the chronological order of the two proceedings is irrelevant. In" }, { "docid": "16635447", "title": "", "text": "state law and holding the individual defendants liable for the civil penalties assessed against WRW. The district court also granted summary judgment to the Government on the issue of whether Roger Richardson’s civil liability was discharged in bankruptcy, holding that it was a non-dis-chargeable debt. For the reasons discussed herein, we affirm. I. Double Jeopardy The defendants’ unsuccessful motion to dismiss this action was premised upon the argument that the imposition of civil penalties following their criminal convictions amounts to a violation of the Double Jeopardy Clause of the Fifth Amendment, which prohibits the imposition of multiple punishments for the same offense. In United States v. Halper, 490 U.S. 435, 448-49, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d 487 (1989), the Supreme Court held: under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution. The defendants now argue that the district court erred in ruling that Halper does not apply. The Halper rule was developed to apply to “the rare case ... where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused.” Id. at 449, 109 S.Ct. at 1902. Unlike Halper, in this case there is no fixed penalty provision to review but instead we review a civil penalty which was based upon a list of factors. 30 U.S.C. §§ 820(a), 820(i). The defendants argue that the purpose of the Act’s civil penalty provisions is wholly punitive, so that a civil penalty under the Act constitutes an impermissible second punishment when used following a criminal conviction for the same conduct. However, the district court held that the civil penalty provisions serve remedial goals both in general and as applied in the instant case. Our review of the district court’s double jeopardy ruling is de novo. See United States v. Furlett, 974 F.2d 839, 842 (7th Cir.1992); United States v. Reed, 937 F.2d 575, 577" }, { "docid": "23065647", "title": "", "text": "$130,000. Halper argued that the civil penalty constituted a second punishment on him for the same wrongful acts for which he had been criminally convicted and thus violated the Double Jeopardy Clause. Id. at 440, 109 S.Ct. at 1897. The Supreme Court reasoned that a government-imposed sanction, whether labelled as “criminal” or “civil,” constituted punishment under the Double Jeopardy Clause if — and Only if — -the sanction, “as applied in the individual case serve[d] the goals of punishment,” that is, retribution and deterrence, instead of only the traditional remedial purpose of reimbursing the government for the costs incurred because of the defendant’s wrongful conduct. Id. at 448, 109 S.Ct. at 1899-1902 (emphasis added). The Court declined to determine whether a sanction is punitive by focusing on whether a defendant subjectively feels the “sting of punishment.” Id. at 447, 109 S.Ct. 1901 n. 7. Instead, the Halper Court examined the civil sanction in that case with a focus on whether it was so excessive that it was punitive. See id., 490 U.S. at 447, 109 S.Ct. at 1902. The Court stated that a civil sanction constitutes criminal punishment only in the “rare case” in which the amount of the sanction is “overwhelmingly disproportionate” to the damages caused by the wrongful conduct and thus “bears no rational relation to the goal of compensating the government for its loss, but rather appears to qualify as ‘punishment’ within the plain meaning of the word.” Id. at 449, 109 S.Ct. at 1902 (emphasis added). The Court then remanded to the district court for a determination of the government’s actual costs and an application of its rational relation test. Id. at 452,109 S.Ct. at 1904. In United States v. Ward, 448 U.S. 242, 254, 100 S.Ct. 2636, 2644, 65 L.Ed.2d 742 (1980), the Supreme Court made clear that the compensation of both the government and society are remedial goals that a civil sanction may serve. The Court stated that a sanction that bore “absolutely no correlation to any damages sustained by society or the cost of enforcing the law” would be criminal. Id. Thus, under" }, { "docid": "9702306", "title": "", "text": "the present case constitutes a second attempt to punish her crimi nally for the same marihuana offenses, the prosecution may not proceed. IV. The Double Jeopardy Clause states: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. The courts have interpreted this clause to provide protection from both multiple prosecutions (after either an acquittal or a conviction) and multiple punishments. See, e.g., Witte, — U.S. at -, 115 S.Ct. at 2204. In the case before us, the parties agree that only the multiple punishments prong is at issue. The core issue in Perez is the same as that faced in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989): “[Wjhether and under what circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause.” Id. at 446, 109 S.Ct. at 1901. Announced in Halper, the governing legal standard for resolving this issue is whether the civil sanction serves solely a remedial purpose, or also a retributive or deterrent purpose. Id. at 448, 109 S.Ct. at 1901-02. If the latter is true, the sanction constitutes punishment for purposes of double jeopardy analysis. This standard is typically effected as a case-by-case proportionality review: If the sanction is overwhelmingly disproportionate to the damages caused by a defendant’s alleged wrongful conduct, it constitutes punishment. See id. at 449, 109 S.Ct. at 1902. Such a proportionality review must include an accounting of the government’s damages and costs, see id., to determine whether the sanction was disproportionate. The damages and costs borne by society as a result of the defendant’s unlawful conduct are also to be considered. See Tilley, 18 F.3d at 298-300. Austin v. United States, — U.S. -, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), however, has had a major impact on the application of the Halper test. In Austin, the Court held that civil forfeitures are subject to the Excessive Fines Clause of the Eighth Amendment. Id. at -, 113 S.Ct. at 2803. Austin was not a double jeopardy" }, { "docid": "13462981", "title": "", "text": "appeal is properly before us. B. Double Jeopardy. The double-jeopardy clause provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. In addition to providing protection against double prosecutions, the clause also prohibits multiple punishments for the same offense. Grady v. Corbin, 495 U.S. 508, 510, 110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 (1990). The Amiels assert that they have already been “punished” by the civil forfeiture, because the value of the properties seized is overwhelmingly disproportionate to the amount involved in their alleged offenses. They contend that the Supreme Court’s decision in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and our decision in United States v. 38 Whalers Cove Drive, 954 F.2d 29 (2d Cir.1992) [hereinafter Whalers Cove ], cert. denied sub nom. Levin v. United States, — U.S.-, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992), compel a finding that the civil forfeiture constituted “punishment” for double-jeopardy purposes. In Halper, the Supreme' Court held that under certain circumstances a civil penalty may be a punishment for purposes of the double-jeopardy clause. Irwin Halper filed sixty-five false medical-insurance claims, for which he was convicted under the criminal false-claims statute, 18 U.S.C. § 287. The government then brought a civil action against him under the False Claims Act, 31 U.S.C. §§ 3729-3731. Although his false claims resulted in a total overpayment of only $585, the statute authorized the recovery of more than $130,000 in penalties. 490 U.S. at 439, 109 S.Ct. at 1896. The Court held that the double-jeopardy clause protected a defendant who has already been punished in a criminal prosecution from being subjected to an additional civil sanction “to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” Id., at 448-49, 109 S.Ct. at 1902.. However,'the Court limited its holding to “the rare case * * * where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he" }, { "docid": "1146748", "title": "", "text": "supra. In Halper, the Court considered the question of “whether and under what circumstances a civil penalty may constitute punishment for purposes of the Double Jeopardy Clause.” Id. 490 U.S. at 446, 109 S.Ct. at 1901. A unanimous court held that “a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can be explained only as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.” Id. 490 U.S. at 448, 109 S.Ct. at 1902. The Double Jeopardy Clause, the court went on to hold, prohibits the imposition of such a civil sanction “to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” Id. It is implicated when “the sanction [is] overwhelmingly disproportionate to the damages [defendant] has caused.” Id. In determining the purpose behind a civil sanction, the Court must look at more than just the language of the statute itself. As the Halper court stated: “... [W]hile recourse to a statutory language, structure and intent is appropriate in identifying the inherent nature of a proceeding, or in determining the constitutional safeguards that must accompany those proceedings as a general matter, the approach is not will suited to the context of the ‘humane interest’ safeguarded by the Double Jeopardy Clause’s proscription of multiple punishments. This constitutional protection is intrinsically personal. Its violation can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state.” Id. 490 U.S. at 447, 109 S.Ct. at 1901 (citation omitted). Thus, the labels of “civil” and “criminal” are not of paramount importance in making this determination. See, id. A civil sanction constitutes punishment when the sanction as applied in the individual case serves the goal of punishment. Id. 490 U.S. at 448, 109 S.Ct. at 1901-1902. In Halper, the Court restated its time-honored recognition of the fact “that in the ordinary ease fixed-penalty-plus-double-damages provisions can be said to do no more than make the Government whole.” Halper, 490 U.S. at" }, { "docid": "14473160", "title": "", "text": "weight of the authority prompts us to treat Gonzalez’s settlement just as we would a guilty plea. Consequently, jeopardy attached upon acceptance of the settlement agreement. Analysis “No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb ...” U.S. Const, amend. V. The Constitution contemplates three types of double jeopardy: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.” United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). The Supreme Court in Halper took up the question of “whether and under what circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause.” Id. at 446, 109 S.Ct. at 1901. The Court resolved that a civil sanction is punishment if it serves the twin aims of retribution and deterrence and not the remedial goal of compensating the government. Id. at 448-49, 109 S.Ct. at 1901-02. In Halper, the Supreme Court established an analytical methodology for determining whether a civil forfeiture is punishment. 490 U.S. at 449, 109 S.Ct. at 1902. If the purpose of a civil sanction is to make the government whole by reimbursing it for the costs incurred as a result of the unlawful conduct, then the civil forfeiture is remedial, and, by definition, nonpunitive. Id. A civil sanction therefore constitutes punishment only if the amount of the sanction is overwhelmingly disproportionate to the costs borne by the government and society as a result of the wrongful conduct. Id. Although Halper created a proportionality review, subsequent cases have concluded that whether a civil forfeiture of property is punishment depends upon the nature of the property forfeited. A civil forfeiture brought under § 881(a)(4) (conveyances, such as means of transporting drugs) or § 881(a)(7) (drug-related real estate) always constitutes punishment because the large and unpredictable variances in the value of conveyances and real estate can have no correlation to the costs incurred by the government and society as a result of the" }, { "docid": "13552498", "title": "", "text": "read: “No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense.” See Friedland, Double Jeopardy at 28, 30. The Supreme Court later stated as a settled principle of the common law that no person may be twice punished in the same court on the same facts, for the same offense, or “as Coke has it, ‘Nemo debet bis puniri pro uno delic-to.’ No one can be twice punished for the same crime or misdemeanor....” Ex Parte Lange, 85 U.S. (18 Wall.) 163, 169, 21 L.Ed. 872 (1873). B. Modem Jurisprudence With this historical background in mind, we address the modern jurisprudence of the doctrine. Today, as its long history makes clear, the Double Jeopardy Clause protects an individual against multiple punishments for the same offense. See Halper, 490 U.S. at 440, 109 S.Ct. at 1897. In modern American law the punishment in question need not be death, maiming or mutilation; nor need the offense be a capital crime or even a felony. The American concept is more generous. ■ It is viewed as an inherent part of our fundamental freedoms that a person accused of any offense, having once suffered punishment, once been convicted, or once won acquittal, is forever immune from further prosecution for that same offense. Because the concept is so broad, the Supreme Court has held that it applies even to certain fines. A civil sanction may constitute “punishment” for double jeopardy purposes where the sanction is “overwhelmingly disproportionate” to the damages the defendant caused. See id. at 449, 109 S.Ct. at 1902. In such a case, the civil sanction serves not a remedial, but rather a deterrent or retributory function. Id. Halper’s test • for assessing the nature of civil sanctions is a “rule of reason.” See United States v. 38 Whalers Cove Drive, 954 F.2d 29, 34 (2d Cir.). cert. denied sub nom. Levin v. United States, — U.S. -, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992). The double jeopardy inquiry is not concerned with the label of a sanction, but only with whether" }, { "docid": "13552480", "title": "", "text": "CARDAMONE, Circuit Judge: Michael G. Morgan takes this interlocutory appeal from the denial of a motion to dismiss a pending indictment against him entered in the United States District Court for the District of Connecticut on January 21, 1994, before Judge T.F. Gilroy Daly. The appeal raises a question as to whether defendant’s constitutional right against being twice put in jeopardy for the same offense was violated. Having signed a consent judgment respecting civil charges brought against him, Morgan now maintains that $1.5 million of the restitution payments imposed on him by the settlement, which sum the consent order labeled a “personal obligation,” was in essence a punitive civil sanction precluding the government from later indicting him. The key word to be understood on this appeal is “punishment.” If a person is twice subject to punishment for the same offense, double jeopardy protection attaches. It is our task to determine whether the heavy repayment obligations imposed here do or do not constitute punishment; if they do not, the double jeopardy defense has no application. The Supreme Court gives guidance when it tells us that a civil sanction constitutes punishment when the goal it serves is for purposes of deterrence or retribution. Such goal is evidenced when the sanction is overwhelmingly disproportionate to the damages caused. See United States v. Halper, 490 U.S. 435, 448-49, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d 487 (1989). Thus, an overwhelmingly disproportionate sanction may be present where the civil sanction bears so little relationship to making the government whole as to shock the conscience of the court. In this case, because there has been no showing of an overwhelmingly disproportionate sanction, the criminal prosecution of Morgan does not offend the Double Jeopardy Clause. BACKGROUND Appellant Morgan was a founder, the chief executive officer, and a member of the Board of Directors of Charter Federal Savings and Loan Association (Charter Federal or bank) organized in 1984 and located in Stamford, Connecticut. The bank created a wholly-owned subsidiary called Bedford Equities Corporation to acquire real estate for development purposes. Bedford Equities, the development corporation, was a general partner" }, { "docid": "23049890", "title": "", "text": "culpable.”). We therefore do not address that argument. Instead, the government’s sole contention here is that the sanction serves other civil goals such as compensation. Following Halper, we therefore examine whether the forfeiture is disproportionately large, relative to the value of the drug transactions which violated 21 U.S.C. § 881(a)(7). The forfeiture of Levin’s interest in the residence was close to three hundred times the total value of cocaine sold inside it. We find as a matter of law that the forefei-ture is overwhelmingly disproportionate compared to the value of the relevant drug transactions, and that therefore a rebuttal presumption that the forfeiture is punitive in nature is created. If the resulting attachment of constitutional protections under Halper would have any effect on the result of this case, we would be inclined to vacate Judge Nicker-son’s judgment of forfeiture and remand the case to permit the government an opportunity to rebut the presumption by showing through an accounting of its costs that the forfeiture is civil in nature. However, assuming arguendo that following a government accounting the district judge would conclude that the forfeiture, even up to the full amount of Levin’s equity interest in the condominium, amounted to punishment and not a civil sanction, the judgment would still survive scrutiny. For reasons that we now turn to, the forfeiture does not violate the constitutional limits on punishment set by the Double Jeopardy Clause and the Eighth Amendment. a. Double Jeopardy Clause Levin maintains that because the forfeiture proceeding followed his prosecution, plea of guilty, and sentencing in state court, the forfeiture violates his Double Jeopardy Clause right to be free from multiple punishments. We disagree. Even assuming that the forfeiture is a criminal penalty, the Double Jeopardy Clause prohibits two criminal punishments for the same offense only when they are sought by the same sovereign government. The Double Jeopardy Clause is inapplicable when separate governments prosecute the same defendant, for the defendant has offended both sovereigns. Heath v. Alabama, 474 U.S. 82, 87-89, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985). Levin argues on appeal that his case falls" }, { "docid": "13552481", "title": "", "text": "Supreme Court gives guidance when it tells us that a civil sanction constitutes punishment when the goal it serves is for purposes of deterrence or retribution. Such goal is evidenced when the sanction is overwhelmingly disproportionate to the damages caused. See United States v. Halper, 490 U.S. 435, 448-49, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d 487 (1989). Thus, an overwhelmingly disproportionate sanction may be present where the civil sanction bears so little relationship to making the government whole as to shock the conscience of the court. In this case, because there has been no showing of an overwhelmingly disproportionate sanction, the criminal prosecution of Morgan does not offend the Double Jeopardy Clause. BACKGROUND Appellant Morgan was a founder, the chief executive officer, and a member of the Board of Directors of Charter Federal Savings and Loan Association (Charter Federal or bank) organized in 1984 and located in Stamford, Connecticut. The bank created a wholly-owned subsidiary called Bedford Equities Corporation to acquire real estate for development purposes. Bedford Equities, the development corporation, was a general partner of a limited partnership called Bedford Equities 1984 Limited Partnership that syndicated real estate acquired by Bedford Equities Corporation. Among the real estate purchases made by Bedford Equities Corporation were three Stamford properties: 1200 Summer Street, 30 Buxton Farms Road, and 159 Franklin Street. The Resolution Trust Corporation seized Charter Federal in 1990. Following the seizure, the United States Department of the Treasury’s Office of Thrift Supervision (OTS) began an investigation into the activities of certain of the bank’s officers and directors. This investigation culminated on January 19, 1993 with the filing against Morgan of a Notice of Charges pursuant to 12 U.S.C. § 1818(b). Simultaneously with the filing of this Notice, there were also filed a stipulation of settlement between Morgan and the government, and a consent order and consent judgment with respect to the claims contained in the civil charges. The five charges in the Notice involved Morgan’s role in four separate real estate transactions during the period 1984-1987. Charge one alleged that when voting to finance Bedford Equities’ purchase of 1200 Summer" }, { "docid": "2225750", "title": "", "text": "divorced from the Government’s damages and expenses as to constitute punishment.” Halper, 109 S.Ct. at 1898. The Court noted: the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment. We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution. Halper, 109 S.Ct. at 1901-02. This case, of course, presents the opposite situation. The civil penalties were exacted before the indictment was returned, but the distinction is not significant. The question is still whether the civil remedies can be fairly described as remedial. The Halper court recognized the answer to that question is not subject to exactitude. Nonetheless, the Court suggested in the “rare case” in which an offender is subjected “to a sanction overwhelmingly disproportionate to the damages he has caused,” it may be presumed the sanction is punitive and not remedial. Halper, 109 S.Ct. at 1902. This determination is left, in the first instance, to the discretion of the trial court. Id. Guided by these principles, we are in hearty agreement with the district court that the penalty of debarment is strictly remedial. Even defendants concede that debarment was “promulgated to serve a remedial purpose.” It is the clear intent of debarment to purge government programs of corrupt influences and to prevent improper dissipation of public funds. Removal of persons whose participation in those programs is detrimental to public purposes is remedial by definition. See Janik Paving & Const., Inc. v. Brock, 828 F.2d 84, 91 (2d Cir.1987). While those persons may interpret debarment as punitive, and indeed feel as though they have been punished, debarment constitutes the “rough remedial" }, { "docid": "22554071", "title": "", "text": "twice, or attempting a second time to punish criminally, for the same offense.” Helvering v. Mitchell, 303 U. S. 391, 399 (1938) (emphasis added). The Fifth Amendment says “nor shall any person be subject for the same offence to be twice put in jeopardy,” and a civil proceeding following a criminal prosecution simply is not a second “jeopardy.” See post, at 801, and n. 1 (Scalia, J., dissenting). But we have recognized that the Constitution constrains the States’ ability to denominate proceedings as “civil” and so dispense with the criminal procedure protections embodied in the Bill of Rights. See, e. g., Allen v. Illinois, 478 U. S. 364, 368-369 (1986). Some governmental exactions are so punitive that they may only be imposed in a criminal proceeding. United States v. Ward, 448 U. S. 242,248-249 (1980). And because the Double Jeopardy Clause prohibits successive criminal proceedings for the same offense, the government may not sanction a defendant for conduct for which he has already been punished insofar as the subsequent sanction is punitive, because to do so would necessitate a criminal proceeding prohibited by the Constitution. See generally United States v. Halper, 490 U. S. 435 (1989). The question, then, is whether Montana’s drug tax is punitive. Our double jeopardy cases make clear that a civil sanction will be considered punishment to the extent that it serves only the purposes of retribution and deterrence, as opposed to furthering any nonpunitive objective. Id., at 448-450. See also Bell v. Wolfish, 441 U. S. 520, 539, n. 20 (1979); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168 (1963). This will obtain when, as in Halper, the amount of the sanction is “overwhelmingly disproportionate” to the damages caused by the wrongful conduct and thus “is not rationally related to the goal of making the Government whole.” 490 U. S., at 449, 451. The State and Federal Governments spend vast sums on drug control activities. See, e. g., U. S. Dept, of Justice, Bureau of Justice Statistics, Fact Sheet: Drug Data Summary 5 (Apr. 1994) (approximately $27 billion in fiscal year 1991). The Kurths are" }, { "docid": "13552510", "title": "", "text": "documents. A defendant must make a threshold showing of “punishment” before a court undertakes a double jeopardy analysis. See United States v. Mongelli, 2 F.3d at 30. In the context of a civil sanction, this threshold is met by showing the sanction to be overwhelmingly disproportionate to the government’s damages and expenses. Leeway is given to achieve “rough justice” when computing .the precise amount of damages and costs the government suffered. See Halper, 490 U.S. at 449, 109 S.Ct. at 1902; 38 Whalers Cove, 954 F.2d at 34-35. Only in the rare case where such disproportion is shown does the burden of accounting for its damages and costs fall on the government. Halper, 490 U.S. at 449-50, 109 S.Ct. at 1902-03. This is not that case. We cannot say that this civil sanction is so divorced from the reality of what the government suffered in damages and expenses as to constitute punishment. See Halper, 490 U.S. at 442, 109 S.Ct. at 1898. Rather, the dollar amount of the compromise we think falls within the bounds of doing rough justice. In sum, appellant has failed to make a threshold showing that any of the terms of the civil settlement could be construed as punishment. Consequently, double jeopardy protection does not attach, and the government could lawfully file an indictment against Morgan after imposing a civil sanction against him for the same conduct. CONCLUSION The denial of the motion to dismiss the indictment against defendant Morgan is accordingly affirmed. . The Supreme Court tells us double jeopardy was historically understood as embracing three common-law pleas — autrefois acquit, autrefois convict, and pardon — that barred the retrial for the same offense for which defendant had already been acquitted, convicted, or pardoned. See United States v. Scott, 437 U.S. 82, 87, 98 S.Ct. 2187, 2191-92, 57 L.Ed.2d 65 (1978). . The civil penalty provisions available to the OTS today under 12 U.S.C. § 1818(i) did not become effective until the passage on August 9, 1989 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (\"FIRREA”), Pub.L. No. 101-73, § 907(a), 103" }, { "docid": "23071032", "title": "", "text": "23 L.Ed.2d 656 (1969). Hawley’s double jeopardy argument is based solely upon the latter protection against multiple punishments for the same offense. We have recognized that the forfeiture of a bail bond is a civil proceeding arising from a criminal one. United States v. Brouillet, 736 F.2d 1414, 1415 (10th Cir.1984). However, the fact that a sanction is fairly characterized as “civil” does not mean that it can never constitute punishment for the purposes of double jeopardy analysis. The Supreme Court in United States v. Halper, 490 U.S. 435, 447-48, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d 487 (1989), stated that: [T]he labels “criminal” and “civil” are not of paramount importance. It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both may be served by criminal penalties_ [T]he determination of whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual ease serves the goals of punishment. The rule announced in Halper is that a civil sanction may be considered punitive when it subjects the offender to a “sanction overwhelmingly disproportionate to the damages he has caused ... [and when] the civil penalty ... bears no rational relation to the goal of compensating the Government for its loss_” Id. at 449, 109 S.Ct. at 1902; see also Department of Revenue v. Kurth Ranch, 511 U.S. 767,-, 114 S.Ct. 1937, 1947-48, 128 L.Ed.2d 767 (1994) (relying on Halper to conclude that a state tax on illegally grown marijuana exacted punishment and not merely revenue). The government argues that Hawley’s bail bond was a form of contract between the government on the one hand and Hawley and his surety on the other. When Hawley violated the terms of his pretrial release he breached the contract with the government and the judgment entered in the government’s favor on the appearance bond was the government’s remedy" } ]

[ { "docid": "8014036", "title": "", "text": "F.3d 687, 690-91 (7th Cir.2003); cf. Medina v. Hornung, 386 F.3d 872, 877-78 (9th Cir.2004) (holding that “even if the state court’s decision was contrary to, or an unreasonable application of, clearly established federal law, habeas relief may still be denied absent a showing of prejudice”); Saiz v. Burnett, 296 F.3d 1008, 1012 (10th Cir.2002) (same). As mentioned earlier, we agree that the trial court erred in excluding Jones’ sole evidence of remorse. However, we cannot grant Jones a writ of habeas corpus unless the error was harmless, and, on collateral review, we must apply a more stringent harmless error standard than the Chapman standard. See Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir.2002). The Supreme Court applied this heightened standard, derived from Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), to federal habeas cases in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and clarified it in O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Under this standard, the habeas petitioner will be entitled to relief only if a habeas court is “in grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict.” O’Neal, 513 U.S. at 436, 115 S.Ct. 992 (internal quotation marks and citation omitted). The proper inquiry is not “merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239. This is a more demanding standard than that set forth in Chapman, and is born of respect for the finality of state court convictions “that have survived direct review,” and concerns of comity, federalism, and the relitigation of claims on collateral review. See Brecht, 507 U.S. at 635, 113 S.Ct. 1710. In analyzing whether error is harmless under this standard, we must look to “the impact of" } ]

[ { "docid": "16209845", "title": "", "text": "the California Supreme Court summarily denied Inthavong's habeas petition, the California Court of Appeal's decision is the relevant state court determination. See Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir.2003). . See Zappulla v. New York, 391 F.3d 462, 467, 474-75 (2d Cir.2004) (holding that Es-parza has supplanted Brecht, at least where a state court has made a harmless error ruling); Gutierrez v. McGinnis, 389 F.3d 300, 306-07 (2d Cir.2004) (same). . See Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir.2000) (“We are not convinced that the AEDPA did not abrogate the requirement that federal habeas courts conduct a harmless error analysis under Brecht in situations such as the one before us, where the state court already has conducted a Chapman harmless error analysis....”). . In addition to the per curiam opinion, seven of the twelve judges joined opinions that clearly adopted this mode of proceeding. Judge Gregory, writing for a plurality of five judges, see id. at 321, first concluded that the habeas writ could not issue unless the state court's harmless error ruling was objectively unreasonable. Id. at 340-41 (Gregory, J., concurring in the judgment on the harmlessness issue). Having concluded that the state court’s ruling was objectively unreasonable, he then proceeded to evaluate independently whether the error was harmless under Brecht. Id. at 343-44. Judge Traxler took the same approach. See id. at 336 (Traxler, J., concurring in part and concurring in the judgment, joined by Shedd, J.) (stating that a \"determination that the state court’s adjudication was the product of an unreasonable application of Chapman only results in our conducting an independent review of the harmlessness of the [error].... [W]e are to review the claim not under the Chapman harmless-error standard, but under the harmless-error standard of review set forth by the Supreme Court in Brecht.”)." }, { "docid": "16079248", "title": "", "text": "Aleman, 320 F.3d at 690-91; Nevers, 169 F.3d at 371-72. . We need not and do not speculate as to what factual scenarios might yield different outcomes under the two approaches. . This logical overlap in outcomes under the two methods of inquiry into harmless error apparently motivated some Circuits to resolve the question by suggesting that Brecht \"pre cisely captures” the congressional intent expressed in AEDPA, and thus Brecht survived AEDPA’s enactment. See Nevers v. Killinger, 169 F.3d 352, 371-72 (6th Cir.1999), abrogated on other grounds by Harris v. Stovall, 212 F.3d 940 (6th Cir.2000). These circuits have concluded that a petitioner sufficiently prejudiced by a trial error to secure habeas relief under Brecht simultaneously survives the inquiry into whether a reviewing state court reasonably applied Chapman. Id.; cf. Robertson v. Cain, 324 F.3d 297, 306 (5th Cir.2003); Herrera v. Lemaster, 301 F.3d 1192, 1200 (10th Cir.2002) (en banc); Sanna v. Dipaolo, 265 F.3d 1, 14 n. 6 (1st Cir.2001). . We note that while Mitchell did not cite Brecht, the Supreme Court has favorably cited Brecht since AEDPA’s passage. For example, in Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001), the Court applied Brecht on collateral review of a state decision post-AEDPA to hold that even if prosecutorial error clearly violated the Fifth Amendment, the error would not have violated Brecht’s test of a \"substantial and injurious effect or influ ence in determining the jury's verdict.” 523 U.S. at 795-96, 118 S.Ct. 1726. Penry and Mitchell differ in at least one key respect — the state appellate court in Penry had not engaged in harmless error review in the first instance. See Penry v. State, 903 S.W.2d 715, 759-60 (Tex.Crim.App.1995). . In contrast, New York's rule for harmless error of a non-constitutional dimension is \"not so exacting,” requiring a different \"level of convincement.” Crimmins, 36 N.Y.2d at 241, 367 N.Y.S.2d 213, 326 N.E.2d 787. While also requiring \"overwhelming proof of guilt” absent the error, the rule for non-constitutional error is distinctly less onerous than Chapman: \"[A]n error is prejudicial ... if the appellate" }, { "docid": "16079247", "title": "", "text": "(holding Brecht alone supplied appropriate standard, as Brecht standard \"precisely captures” congressional intent as expressed in AEDPA, and because by satisfying Brecht a petitioner simultaneously satisfies the unreasonable application of Chapman standard) abrogated on other grounds by Harris v. Stovall, 212 F.3d 940 (6th Cir.2000); cf. Robertson v. Cain, 324 F.3d 297, 306-07 (5th Cir.2003); Herrera v. Lemaster, 301 F.3d 1192, 1200 (10th Cir.2002) (en banc); Sanna v. Dipaolo, 265 F.3d 1, 14 (1st Cir.2001). See also Allen, 366 F.3d at 354 (Williams, J., dissenting) (arguing application of Brecht alone). The Eighth Circuit, in contrast, expressed doubt as to whether Brecht survived AEDPA at all. Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir.2000); see also Brown v. Luebbers, 371 F.3d 458, 469 (8th Cir.2004) (en banc) (denying habeas relief where state's harmless error analysis was not an unreasonable application of Chapman). . Several of our fellow circuits have resolved the issue, albeit with different approaches as discussed in note 3, supra, in cases where the state appellate court conducted explicit harmless error review. E.g. Aleman, 320 F.3d at 690-91; Nevers, 169 F.3d at 371-72. . We need not and do not speculate as to what factual scenarios might yield different outcomes under the two approaches. . This logical overlap in outcomes under the two methods of inquiry into harmless error apparently motivated some Circuits to resolve the question by suggesting that Brecht \"pre cisely captures” the congressional intent expressed in AEDPA, and thus Brecht survived AEDPA’s enactment. See Nevers v. Killinger, 169 F.3d 352, 371-72 (6th Cir.1999), abrogated on other grounds by Harris v. Stovall, 212 F.3d 940 (6th Cir.2000). These circuits have concluded that a petitioner sufficiently prejudiced by a trial error to secure habeas relief under Brecht simultaneously survives the inquiry into whether a reviewing state court reasonably applied Chapman. Id.; cf. Robertson v. Cain, 324 F.3d 297, 306 (5th Cir.2003); Herrera v. Lemaster, 301 F.3d 1192, 1200 (10th Cir.2002) (en banc); Sanna v. Dipaolo, 265 F.3d 1, 14 n. 6 (1st Cir.2001). . We note that while Mitchell did not cite Brecht, the Supreme Court has" }, { "docid": "16209839", "title": "", "text": "the view — adopted by the Sixth Circuit and at least suggested by the Third — that the AEDPA/Esparza test is wholly subsumed by the Brecht test. See Bulls v. Jones, 274 F.3d 329, 335 (6th Cir.2001) (reasoning that “if a habeas petitioner satisfies the Brecht standard, ‘he will surely have demonstrated that the state court’s finding that the error was harmless beyond a reasonable doubt ... resulted from an unreasonable application of Chapman’ ” (citations omitted)); see also Lam v. Kelchner, 304 F.3d 256, 270 n. 14 (3d Cir.2002) (opining that the Brecht standard is “more generous” to the state courts than the AEDPA standard). We agree that the AEDPA and the Brecht inquiries will overlap in many cases: the state court will be objectively unreasonable under AEDPA and the error harmful under Brecht, or vice versa, for similar or even identical reasons. We do not agree that such inquiries will overlap in all cases. Harmless error determinations are highly fact-specific. They often involve a review of the entire trial record. Under Brecht, we will often make numerous independent evaluations about the weight and sufficiency of the various items of evidence, the inferences to be drawn, and the different theories of the case. Under AEDPA, we simply concern ourselves with the reasonableness of the evaluations and conclusions that the state court explicitly or implicitly made, although requiring the state court to meet the more stringent ‘beyond a reasonable doubt’ standard. The cumulative differences between these different types of evaluations will sometimes lead to different results. Compare Bulls, 274 F.3d at 335 (holding that the Brecht standard is always more deferential than the AEDPA standard) with Bryson v. Ward, 187 F.3d 1193, 1205 n. 10 (10th Cir.1999) (“The Brecht standard in this setting is more rigorous than the determination under the AEDPA of whether the Oklahoma Court of Criminal Appeals unreasonably applied the otherwise more rigorous standard in Chapman”) (internal citation omitted). We therefore cannot join the Sixth Circuit, nor likely the Third Circuit, on this point. B Since both the Brecht and the AED-PA/Esparza tests must be satisfied with" }, { "docid": "15132283", "title": "", "text": "arising in state habeas cases. Robertson argues that, under AEDPA’s restrictive review of state court decisions, the federal habeas court is required to review only whether the state court’s decision is “contrary to” or an “unreasonable application of’ Chapman and grant relief accordingly. Robertson argues that where, as in this case, the state court has failed to apply Chapman at all, then the federal courts should do what the state court was required to do, but failed to do, that is, apply Chapman to determine whether the constitutional error is harmless. In past cases under AEDPA, this court has recognized that there has been some doubt among the federal circuit courts about whether the Brecht standard for harmless error remains applicable after AEDPA. See, e.g., Tucker v. Johnson, 242 F.3d 617, 629 n. 16 (5th Cir.2001) (citing cases); Hernandez v. Johnson, 248 F.3d 344, 379 (5th Cir.2001) (Dennis, J., dissenting) (citing cases). In Whitmore v. Kem-na, 213 F.3d 431 (8th Cir.2000), the Eighth Circuit suggested that AEDPA might be interpreted to limit the scope of collateral federal review of harmless error and thereby abrogate the requirement that federal courts conduct an independent harmless error analysis under Brecht, at least in cases where the state court has already conducted a Chapman-type harmless error review of the alleged constitutional trial error. See Whitmore, 213 F.3d at 433 (suggesting in dicta that a state court assessment of harmless error is entitled to the same deference under 28 U.S.C. § 2254 as any other state court determination of fact or law). Similarly, in Noble v. Kelly, 246 F.3d 93, 101 n. 5 (2d Cir.2001) (per curiam), the Second Circuit noted an open question about whether federal courts should now apply a mixed AED-PA/Chapman standard and examine “whether the state court’s decision was ‘contrary to, or involved an unreasonable application of Chapman.” See Noble, 246 F.3d at 101 n. 5. Since Kemna and Noble, however, the Supreme Court has implicitly acknowledged the vitality of Brecht’s independent harmless error analysis in federal habeas cases brought under AEDPA. See Penry v. Johnson, 532 U.S. 782, 795, 121" }, { "docid": "15132284", "title": "", "text": "collateral federal review of harmless error and thereby abrogate the requirement that federal courts conduct an independent harmless error analysis under Brecht, at least in cases where the state court has already conducted a Chapman-type harmless error review of the alleged constitutional trial error. See Whitmore, 213 F.3d at 433 (suggesting in dicta that a state court assessment of harmless error is entitled to the same deference under 28 U.S.C. § 2254 as any other state court determination of fact or law). Similarly, in Noble v. Kelly, 246 F.3d 93, 101 n. 5 (2d Cir.2001) (per curiam), the Second Circuit noted an open question about whether federal courts should now apply a mixed AED-PA/Chapman standard and examine “whether the state court’s decision was ‘contrary to, or involved an unreasonable application of Chapman.” See Noble, 246 F.3d at 101 n. 5. Since Kemna and Noble, however, the Supreme Court has implicitly acknowledged the vitality of Brecht’s independent harmless error analysis in federal habeas cases brought under AEDPA. See Penry v. Johnson, 532 U.S. 782, 795, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (noting that even if the petitioner could satisfy the requirements of 28 U.S.C. § 2254(d)(1), the petitioner would still have to show that the alleged error “had substantial and injurious effect or influence in determining the jury’s verdict”) (quoting Brecht, 507 U.S. at 637, 113 S.Ct. 1710) (internal quotations and citations omitted). Moreover, all of the courts of appeals that have squarely decided the question have concluded that Brecht’s independent standard for harmless error continues to be appropriate in federal habeas cases, even after the enactment of AEDPA. See Herrera v. Lemaster, 301 F.3d 1192 (10th Cir.2002) (en banc); Sanna v. Dipaolo, 265 F.3d 1, 14 (1st Cir.2001); Nevers v. Killinger, 169 F.3d 352, 370 (6th Cir.1999) abrogated on other grounds by Harris v. Stovall, 212 F.3d 940 (6th Cir.2000). See also Little v. Kern County Superior Court, 294 F.3d 1075, 1083-84 (9th Cir.2002) (applying Brecht, in addition to the requirements of AEDPA, without comment). Our own consideration of Brecht and of AEDPA also persuades us that Brecht survives" }, { "docid": "23181233", "title": "", "text": "willfulness is required in every case. See United States v. Portela, 167 F.3d 687, 705 & n. 16 (1st Cir.), cert. denied sub nom. Villaman-Rodriguez v. United States, 528 U.S. 917, 120 S.Ct. 273, 145 L.Ed.2d 229 (1999). For purposes of the present case, we need only conclude that where prejudice to the prosecution can be minimized with relative ease, a trial court's exclusion of alibi testimony must be supported by a finding of some degree of willfulness in defense counsel's violation of the applicable discovery rules. . Because we conclude that the state trial court committed constitutional error in excluding Yamagata's testimony, we decline to address the petitioner’s alternative claim that he received constitutionally ineffective assistance of counsel. . We note that the pre-AEDPA standard of review discussed in part II.A above does not apply to our harmlessness determination because harmlessness was \"adjudicated on the merits” by the Appellate Division. It is well-settled that on direct review, a state appellate court may find a constitutional error harmless only if it is harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Prior to the passage of AEDPA, federal habeas courts reviewing state harmlessness determinations employed a standard less demanding than Chapman, asking whether an error 'had substantial and injurious effect or influence in determining the jury's verdict.' ” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). After AEDPA, the question arises whether a federal habeas court should continue to apply Brecht or determine instead whether the state court's decision was \"contrary to, or involved an unreasonable application of” Chapman. 28 U.S.C. § 2254(d)(1); see, e.g., Maurino v. Johnson, 210 F.3d 638, 645 (6th Cir.), cert. denied, - U.S. -, 121 S.Ct. 427, 148 L.Ed.2d 435 (2000) (adhering to Brecht ); Hale v. Gibson, 227 F.3d 1298, 1325 (10th Cir.2000) (same); Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir.2000) (expressing skepticism about the vitality of Brecht, but" }, { "docid": "15132285", "title": "", "text": "S.Ct. 1910, 150 L.Ed.2d 9 (2001) (noting that even if the petitioner could satisfy the requirements of 28 U.S.C. § 2254(d)(1), the petitioner would still have to show that the alleged error “had substantial and injurious effect or influence in determining the jury’s verdict”) (quoting Brecht, 507 U.S. at 637, 113 S.Ct. 1710) (internal quotations and citations omitted). Moreover, all of the courts of appeals that have squarely decided the question have concluded that Brecht’s independent standard for harmless error continues to be appropriate in federal habeas cases, even after the enactment of AEDPA. See Herrera v. Lemaster, 301 F.3d 1192 (10th Cir.2002) (en banc); Sanna v. Dipaolo, 265 F.3d 1, 14 (1st Cir.2001); Nevers v. Killinger, 169 F.3d 352, 370 (6th Cir.1999) abrogated on other grounds by Harris v. Stovall, 212 F.3d 940 (6th Cir.2000). See also Little v. Kern County Superior Court, 294 F.3d 1075, 1083-84 (9th Cir.2002) (applying Brecht, in addition to the requirements of AEDPA, without comment). Our own consideration of Brecht and of AEDPA also persuades us that Brecht survives AEDPA’s enactment. As other courts have recognized, Brecht sets forth a standard for harmless error analysis that was intended to apply to all federal habeas cases involving constitutional “trial” error. See, e.g., Herrera, 301 F.3d at 1199 (citing Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (Rehnquist, J., writing for the court) and at 643, 113 S.Ct. 1710 (Stevens, J., concurring)). We can assume that Congress was aware of Brecht when it enacted AEDPA, yet nothing in the text or the legislative history of AEDPA specifically or generally alludes to an alteration in the application of federal harmless error doctrine to a state court decision. In fact, the plain language of AEDPA says only that habeas relief “shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim” is either “contrary to” or an “unreasonable application of’ clearly established federal law, as defined by the Supreme Court, or “based on an unreasonable determination of the facts in light of the evidence" }, { "docid": "23181234", "title": "", "text": "reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Prior to the passage of AEDPA, federal habeas courts reviewing state harmlessness determinations employed a standard less demanding than Chapman, asking whether an error 'had substantial and injurious effect or influence in determining the jury's verdict.' ” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). After AEDPA, the question arises whether a federal habeas court should continue to apply Brecht or determine instead whether the state court's decision was \"contrary to, or involved an unreasonable application of” Chapman. 28 U.S.C. § 2254(d)(1); see, e.g., Maurino v. Johnson, 210 F.3d 638, 645 (6th Cir.), cert. denied, - U.S. -, 121 S.Ct. 427, 148 L.Ed.2d 435 (2000) (adhering to Brecht ); Hale v. Gibson, 227 F.3d 1298, 1325 (10th Cir.2000) (same); Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir.2000) (expressing skepticism about the vitality of Brecht, but declining to decide the issue); Anderson v. Cowan, 227 F.3d 893, 898 n. 3 (7th Cir.2000) (noting the issue but declining to decide it). The Appellate Division in this case failed to apply Chapman, holding that the error was harmless \"in view of the overwhelming evidence of guilt.” Noble, 209 A.D.2d at 735-36, 618 N.Y.S.2d at 124. Because we conclude that the error was not harmless under both possible standards of review, we decline to express a view as to which standard should apply. JACOBS, Circuit Judge, dissenting: As to all but one point, I concur in the majority opinion. Thus I agree that Noble’s habeas petition was timely (Part I), that it is not necessary to determine whether AEDPA applies (Part II.A), that, under Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), the state court erred in failing to determine whether defense counsel’s non-compliance with § 250.20 was willful (Part II.B), and that this failure was not harmless (Part II.D). I respectfully dissent from Part II.C (“Remedy”) only. Rather" }, { "docid": "16079246", "title": "", "text": "if one is left in grave doubt, the conviction cannot stand. Kotteakos, 328 U.S. at 764-65, 66 S.Ct. 1239; see O'Neal v. McAninch, 513 U.S. 432, 437-38, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). . The circuits have divided on this question. In resolving the issue, some circuits take a two-step approach, evaluating whether the state court unreasonably applied Chapman, then further assessing the underlying error under Brecht. Allen v. Lee, 366 F.3d 319, 336-37, 342-44 (4th Cir.2004) (en banc) (plurality) (two concurrences applying two-step approach); Aleman v. Sternes, 320 F.3d 687, 690-91 (7th Cir.2003) (endorsing two stage inquiry, but not requiring habeas judges to follow particular sequence in applying standards). The Ninth Circuit initially adopted this approach in Medina v. Hornung, 372 F.3d 1120, 1125-27 (9th Cir.2004), but later superseded the relevant analysis by an amended opinion that did not address the issue. See Medina v. Hornung, 386 F.3d 872 (9th Cir.2004). Other Circuits have held Brecht to be the sole standard required. See, e.g., Nevers v. Killinger, 169 F.3d 352, 371 (6th Cir.1999) (holding Brecht alone supplied appropriate standard, as Brecht standard \"precisely captures” congressional intent as expressed in AEDPA, and because by satisfying Brecht a petitioner simultaneously satisfies the unreasonable application of Chapman standard) abrogated on other grounds by Harris v. Stovall, 212 F.3d 940 (6th Cir.2000); cf. Robertson v. Cain, 324 F.3d 297, 306-07 (5th Cir.2003); Herrera v. Lemaster, 301 F.3d 1192, 1200 (10th Cir.2002) (en banc); Sanna v. Dipaolo, 265 F.3d 1, 14 (1st Cir.2001). See also Allen, 366 F.3d at 354 (Williams, J., dissenting) (arguing application of Brecht alone). The Eighth Circuit, in contrast, expressed doubt as to whether Brecht survived AEDPA at all. Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir.2000); see also Brown v. Luebbers, 371 F.3d 458, 469 (8th Cir.2004) (en banc) (denying habeas relief where state's harmless error analysis was not an unreasonable application of Chapman). . Several of our fellow circuits have resolved the issue, albeit with different approaches as discussed in note 3, supra, in cases where the state appellate court conducted explicit harmless error review. E.g." }, { "docid": "16209844", "title": "", "text": "have held, “the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.... [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury....” Taylor v. Maddox, 366 F.3d 992, 1017 (9th Cir.2004) (alterations in original). Even without the September 16 confession, it would not be unfair to say that Inthavong was convicted out of his own mouth. Even without the September 16 confession, Inthavong’s own statements and an abundance of evidence attest to his participation in Dobson’s murder. The California Court of Appeal was objectively reasonable to rule that any error in admitting Inthavong’s September 16 confession was harmless beyond a reasonable doubt. IV Because the California court’s harmless error holding was objectively reasonable, we cannot grant Inthavong the relief he seeks. The judgment of the district court is hereby AFFIRMED. . Inthavong then filed a petition for writ of habeas corpus with the California Supreme Court. Because the California Supreme Court summarily denied Inthavong's habeas petition, the California Court of Appeal's decision is the relevant state court determination. See Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir.2003). . See Zappulla v. New York, 391 F.3d 462, 467, 474-75 (2d Cir.2004) (holding that Es-parza has supplanted Brecht, at least where a state court has made a harmless error ruling); Gutierrez v. McGinnis, 389 F.3d 300, 306-07 (2d Cir.2004) (same). . See Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir.2000) (“We are not convinced that the AEDPA did not abrogate the requirement that federal habeas courts conduct a harmless error analysis under Brecht in situations such as the one before us, where the state court already has conducted a Chapman harmless error analysis....”). . In addition to the per curiam opinion, seven of the twelve judges joined opinions that clearly adopted this mode of proceeding. Judge Gregory, writing for a plurality of five judges, see id. at 321, first concluded that the habeas writ could not issue unless the state court's" }, { "docid": "15908017", "title": "", "text": "error standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), that an error is harmless which does not result in “actual prejudice”, because we conclude that the result would be the same as under our analysis that the state court did not “unreasonably apply” the Chapman harmless error test on direct review. Several of our sister circuits have questioned the continuing validity of the Brecht test in light of AEDPA’s command that we review state court decisions to determine only whether the state court “unreasonably applied” clearly established Supreme Court precedent under 28 U.S.C. § 2254(d)(1). See Anderson v. Cowan, 227 F.3d 893, 898 (7th Cir.2000) (questioning the continued viability of Brecht in light of amended § 2254, but finding it unnecessary to resolve the question because “[ejven if we assume that Brecht articulates a more generous standard than AED-PA,. we must conclude that, under that more generous standard, the error was harmless”); Whitmore v. Kemna, 213 F.3d 431, 433-34 (8th Cir.2000) (suggesting that after a state court has applied a Chapman harmless error analysis, the federal court on § 2254 review need not then apply Brecht, but rather, must ask only whether the state court’s application of the Chapman error standard was “unreasonable”; but finding it unnecessary to resolve the issue because the result would be the same under either Brecht or § 2254). But cf. Nevers v. Killinger, 169 F.3d 352, 371 (6th Cir.1999) (holding that when the issue before the federal habeas court is the state court’s finding of harmless error, the test set forth in Brecht “precisely captures Congress’s intent as expressed in AEDPA and, therefore, continues to be applicable”). A recent decision of this court, Lainfiesta v. Artuz, 253 F.3d 151, 157-58 (2d Cir.2001), applied the Brecht test to hold harmless a violation of the defendant’s Sixth Amendment right to counsel of his choice. There, unlike in the present case, the state court did not apply the Chapman harmless error test on direct review, as it found no constitutional error. In addition, we noted that the" }, { "docid": "17312744", "title": "", "text": "Brecht after AEDPA's enactment. However, in Mitchell v. Esparza, the Supreme Court, on habeas review, considered the state court's harmless-error review under AEDPA’s standard of review: \"We may not grant respondent's habeas petition, however, if the state court simply erred in concluding that the State’s errors were harmless; rather, habeas relief is appropriate only if the [state court] applied harmless-error review in an 'objectively unreasonable' manner.” 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam) (citing Lockyer v. Andrade, 538 U.S. 63, 75-77, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). The Second Circuit has read Mitchell as implicitly rejecting Brecht, at least when the state court has made a harmless-error determination. Gutierrez v. McGinnis, 389 F.3d 300, 306 (2d Cir.2004). But even if we read Mitchell as the Second Circuit does, our precedent in Robertson remains unaffected because Robertson speaks directly to the situation where the state court did not perform a harmless-error review. Nor does our adherence to Robertson signal a rejection of the Ninth Circuit’s two-step harmless-error habeas review; under that analysis, a finding against the petitioner on either step precludes habeas relief. See Inthavong v. Lamarque, 420 F.3d 1055, 1059 (9th Cir.2005). . At oral argument, the Director suggested that state courts first should apply the Brecht harmless-error analysis, which federal habeas courts would then review under AEDPA's deferential standard. We disagree. Brecht’s less-stringent standard of harmless-error review is predicated on a federal habeas court's respect for comity, finality, and federalism. Congress addressed these same principles in enacting AEDPA. See Williams, 529 U.S. at 436, 120 S.Ct. 1479 (\"AEDPA's purpose [is] to further the principles of comity, finality, and federalism.”). Brecht’s existence does not relieve a state court of its duty to apply Chapman's harmless-error analysis where it is required to do so under Supreme Court precedents. . In the alternative, we hold that the state habeas court’s rejection of Garcia's post-conviction challenge was not contrary to or an unreasonable application of Supreme Court precedent. Given the similarities between the record before us and the example in Johnson, it would not be unreasonable" }, { "docid": "16079230", "title": "", "text": "“(1) disposes of the claim ‘on the merits,’ and (2) reduces its disposition to judgment.... even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.” Id. at 312. While AEDPA’s amendments to 28 U.S.C. § 2254 do not expressly overrule the Brecht standard for harmless error on collateral review, as noted, the amended statute now requires habeas courts to evaluate state adjudications of federal claims with some deference. Chapman binds a state appellate court — directly reviewing a lower state court — to dispose of federal constitutional errors as harmless only if the error was harmless beyond a reasonable doubt. E.g. People v. Crimmins, 36 N.Y.2d 230, 240-42, 367 N.Y.S.2d 213, 326 N.E.2d 787 (1975) (interpreting Chapman for New York courts); see Sellan, 261 F.3d at 314 (citing Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947)) (“Under the Supremacy Clause, state courts are obligated to apply and adjudicate federal claims fairly presented to them.”). When a state court holds that a particular federal constitutional error at trial is harmless, that holding is an adjudication of a federal claim, in turn suggesting that AEDPA’s deferential standards must attach. Thus AEDPA may not overrule Brecht directly, but the statute’s implications do call Brecht’s, continuing viability into question. Accordingly, this Circuit has frequently questioned “whether, following the passage of AEDPA, the applicable test [for harmless error] on habeas review of a state conviction remains the one set forth in Brecht, or instead should be a determination ‘whether the state court’s decision was ‘contrary to, or involved an unreasonable application of Chapman.’ ” Brown v. Keane, 355 F.3d 82, 91 (2d Cir.2004) (quoting Noble v. Kelly, 246 F.3d 93, 101 n. 5 (2d Cir.2001) (quoting 28 U.S.C. § 2254(d)(1))); see, e.g., Parsad v. Greiner, 337 F.3d 175, 185 n. 5 (2d Cir.2003); Cotto v. Herbert, 331 F.3d 217, 253-54 (2d Cir.2003); Ryan v. Miller, 303 F.3d 231, 253-54 (2d Cir.2002); Fuller v. Gorczyk, 273 F.3d 212, 220-21 (2d Cir.2001); Loliscio v. Goord, 263 F.3d 178, 185 n. 1 (2d" }, { "docid": "15733726", "title": "", "text": "harmlessness of the error,” id. at 437, 115 S.Ct. 992, the petitioner must prevail, see id. at 436, 115 S.Ct. 992. It is unclear whether the holdings in Brecht and O’Neal have survived the passage of AEDPA. In Nevers v. Killinger, 169 F.3d 352 (6th Cir.1999), our colleagues in the Sixth Circuit held that \"the test set out by the Supreme Court in Kotteakos and explicitly reiterated in Brecht quite precisely captures Congress’s intent as expressed in AEDPA and, therefore, continues to be applicable.” Id. at 371. The court reasoned that, under Brecht, \"it is the habeas petitioner's burden to demonstrate that the trial error resulted in 'actual prejudice’ .... If the petitioner is able to make that showing, he will surely have demonstrated that the state court's finding that the error was harmless beyond a reasonable doubt — the Chapman standard — was outside the realm of plausible credible outcomes, and therefore resulted from an unreasonable application of Chapman.” Id. at 370 (quoting Brecht, 507 U.S. at 637, 113 S.Ct. 1710). Nevers has been followed in the Sixth Circuit, although with a marked lack of enthusiasm. See Maurino v. Johnson, 210 F.3d 638, 644 (6th Cir.2000) (following Nevers \"because there has been no intervening Supreme Court decision invalidating that panel's decision”), abrogation on other grounds recognized by Harris v. Stovall, 212 F.3d 940 (6th Cir.2000). The Eighth Circuit, by contrast, has indicated, in dicta, skepticism about the continued vitality of Brecht. See Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir.2000). We need not take sides on this disagreement. Even if we assume that Brecht articulates a more generous standard than AEDPA, we must conclude that, under that more generous standard, the error was harmless. See Thomas v. Gibson, 218 F.3d 1213, 1226 n. 12 (10th Cir.2000). . See also Porter v. Gramley, 112 F.3d 1308, 1312 (7th Cir. 1997) (stating that a petitioner must demonstrate that an issue is debatable among jurists or that \"the questions 'deserve encouragement to proceed further’ ” (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090" }, { "docid": "16209836", "title": "", "text": "and the Eighth Circuit has at least questioned Brecht’s continued vitality. We, however, have squarely held that the Brecht standard survived AEDPA. See Bains v. Cambra, 204 F.3d 964, 976-77 (9th Cir.2000) (recognizing and joining a consensus among the circuits that “federal district courts always should apply the Brecht standard when conducting their own independent harmless error review, regardless of what, if any, type of harmless error review was conducted by the state courts”). We appear to have reached the same conclusion even post -Esparza. See Picazo v. Alameida, 366 F.3d 971, 971 (9th Cir.2004) (order) (rejecting a petition for rehearing that argued that the Brecht standard was inapplicable post-Esparza because “[g]iven that Esparza did not even mention Brecht, or its progeny, we do not believe that the Court intended to overrule those earlier decisions”) (internal citation omitted). To grant relief where a state court has determined that a constitutional error was harmless, we must both determine (1) that the state court’s decision was “contrary to” or an “unreasonable application” of Supreme Court harmless error precedent, and (2) that the petitioner suffered prejudice under Brecht from the constitutional error. In following this two-part harmless error test, we are joined by the Tenth, the Seventh, and the Fourth Circuits. The Tenth Circuit has instructed that “if the district court concludes the [state] court’s application of Chapman was objectively unreasonable, the court should engage in an independent harmless error analysis applying the standard articulated in Brecht.” Saiz v. Burnett, 296 F.3d 1008, 1012-13 (10th Cir.2002) (internal citation omitted); see also Cargle v. Mullin, 317 F.3d 1196, 1220, 1224 (10th Cir.2003) (“If the state courts did not address a harmless-error issue (or did so under the wrong standard), we apply the standard generally adopted for habeas purposes in Brecht v. Abrahamson.” (internal citation omitted) (emphasis added)). In Aleman v. Stemes, the Seventh Circuit has also rejected the argument that AEDPA “jettisons Brecht and replaces it with the question whether the state judiciary unreasonably applied the Chapman standard.” 320 F.3d 687, 690 (7th Cir. 2003). Instead, the court concluded that even if a state" }, { "docid": "16519925", "title": "", "text": "state court. The panel was persuaded that Mr. Herrera was denied a full and fair opportunity to litigate his Fourth Amendment claim by the state court’s failure to assess the harmlessness of the constitutional violation under the Chapman standard. . AEDPA provides in pertinent part that \"[i]n a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). . In Brecht itself, the state court found a constitutional violation but concluded that it was harmless beyond a reasonable doubt under Chapman. See Brecht, 507 U.S. at 625-26, 113 S.Ct. 1710. In the instant case, the state court found constitutional error and undertook a harmless error analysis under a standard the state concedes was improper. In other cases, a state court may find no constitutional violation but do so in a decision that is contrary to clearly established federal law or involves an unreasonable application of it. In the latter two circumstances, the habeas petitioner has not received a harmless error review under Chapman in state court. Mr. Herrera concedes that if Brecht is still viable after AEDPA, it applies to the first situation, that is, where the state court has performed a Chapman harmless error analysis. Accordingly, we address on rehearing whether Brecht is still applicable after AEDPA and, if so, whether a federal court on habeas review should assess harmlessness under Chapman or Brecht when the state court has failed to apply Chapman. The circuits do not speak with one voice on either issue. See Hernandez v. Johnson, 248 F.3d 344, 379 (5th Cir.2001) (Dennis, Circuit Judge, dissenting) (discussing division in circuits as to whether Brecht survives AEDPA); Denny v. Gudmanson, 252 F.3d 896, 905 n. 4 (7th Cir.2001) (same); Sanna v. Dipaolo, 265 F.3d 1, 14 (1st Cir.2001) (noting disagreement and reaffirming prior holdings that Brecht applies after AEDPA); and see Orndorff v. Lockhart, 998 F.2d 1426, 1430 (8th Cir.1993) (Chapman applies rather" }, { "docid": "17312742", "title": "", "text": "separate verdict forms (also on separate documents) as to each defendant. . Garcia’s attorney argued in favor of including the accomplice-witness instruction. . Alejandro's conviction was overturned on direct appeal because of the inclusion of the accomplice-witness instruction. See Garcia v. State, No. 04-99-897-CR (Tex.App.—San Antonio Oct. 18, 2000). . In addition to the appeal on the merits, the Director also appeals the district court’s decision to equitably toll the statute of limitations. Because we deny the habeas petition, we do not address the issue of tolling except to note that in this circuit an error of law, however reasonable it might be, \" ‘is not an extraordinary circumstance such that equitable tolling ís justified.' \" United States v. Riggs, 314 F.3d 796, 799 (5th Cir.2002) (quoting Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.2002)). . The district court granted the Director's motion to stay judgment pending the outcome of this appeal. . Garcia also cites Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989), Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), and Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) (plurality), in support of his claim. . We assume without deciding that Alejandro’s jury charge can be prejudicial to Garcia. . Compare Gutierrez v. McGinnis, 389 F.3d 300, 306 (2d Cir.2004) (declining to apply Brecht \"when a state court explicitly conducts harmless error review of a constitutional error [because] a habeas court must evaluate whether the state unreasonably applied Chapman”), with Webber v. Scott, 390 F.3d 1169, 1177 (10th Cir.2004) (applying Brecht when the state court did not apply the Chapman harmless-error standard), with Inthavong v. Lamarque, 420 F.3d 1055, 1059 (9th Cir.2005) (holding that a federal habeas court must perform both an AEDPA-based review of the state court's Chapman harmless-error analysis and a Brecht harmless-error review of the original error as a precondition to granting habeas relief). . In the time since Robertson was decided, the Supreme Court has not addressed the specific question of whether federal habeas courts are to apply" }, { "docid": "17312743", "title": "", "text": "307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), and Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) (plurality), in support of his claim. . We assume without deciding that Alejandro’s jury charge can be prejudicial to Garcia. . Compare Gutierrez v. McGinnis, 389 F.3d 300, 306 (2d Cir.2004) (declining to apply Brecht \"when a state court explicitly conducts harmless error review of a constitutional error [because] a habeas court must evaluate whether the state unreasonably applied Chapman”), with Webber v. Scott, 390 F.3d 1169, 1177 (10th Cir.2004) (applying Brecht when the state court did not apply the Chapman harmless-error standard), with Inthavong v. Lamarque, 420 F.3d 1055, 1059 (9th Cir.2005) (holding that a federal habeas court must perform both an AEDPA-based review of the state court's Chapman harmless-error analysis and a Brecht harmless-error review of the original error as a precondition to granting habeas relief). . In the time since Robertson was decided, the Supreme Court has not addressed the specific question of whether federal habeas courts are to apply Brecht after AEDPA's enactment. However, in Mitchell v. Esparza, the Supreme Court, on habeas review, considered the state court's harmless-error review under AEDPA’s standard of review: \"We may not grant respondent's habeas petition, however, if the state court simply erred in concluding that the State’s errors were harmless; rather, habeas relief is appropriate only if the [state court] applied harmless-error review in an 'objectively unreasonable' manner.” 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam) (citing Lockyer v. Andrade, 538 U.S. 63, 75-77, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). The Second Circuit has read Mitchell as implicitly rejecting Brecht, at least when the state court has made a harmless-error determination. Gutierrez v. McGinnis, 389 F.3d 300, 306 (2d Cir.2004). But even if we read Mitchell as the Second Circuit does, our precedent in Robertson remains unaffected because Robertson speaks directly to the situation where the state court did not perform a harmless-error review. Nor does our adherence to Robertson signal a rejection of the Ninth Circuit’s two-step harmless-error habeas review;" }, { "docid": "16519926", "title": "", "text": "involves an unreasonable application of it. In the latter two circumstances, the habeas petitioner has not received a harmless error review under Chapman in state court. Mr. Herrera concedes that if Brecht is still viable after AEDPA, it applies to the first situation, that is, where the state court has performed a Chapman harmless error analysis. Accordingly, we address on rehearing whether Brecht is still applicable after AEDPA and, if so, whether a federal court on habeas review should assess harmlessness under Chapman or Brecht when the state court has failed to apply Chapman. The circuits do not speak with one voice on either issue. See Hernandez v. Johnson, 248 F.3d 344, 379 (5th Cir.2001) (Dennis, Circuit Judge, dissenting) (discussing division in circuits as to whether Brecht survives AEDPA); Denny v. Gudmanson, 252 F.3d 896, 905 n. 4 (7th Cir.2001) (same); Sanna v. Dipaolo, 265 F.3d 1, 14 (1st Cir.2001) (noting disagreement and reaffirming prior holdings that Brecht applies after AEDPA); and see Orndorff v. Lockhart, 998 F.2d 1426, 1430 (8th Cir.1993) (Chapman applies rather than Brecht when slate court did not conduct its own harmless error analysis on direct appeal); Hassine v. Zimmerman, 160 F.3d 941, 950-53 (3d Cir.1998) (noting circuit split and applying Brecht); see also Sanna, 265 F.3d at 14 n. 6 (noting circuit controversy over whether Brecht applies when state court did not perform harmless error analysis under Chapman and applying Brecht because state court applied standard essentially equivalent to Chapman ). . As the Supreme Court subsequently explained in O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995), Justice Stevens' view of the Brecht standard as adopting \"the Kotteakos standard in its entirety ” commanded a majority of the Court, id. at 439, 115 S.Ct. 992 (emphasis added)." } ]

[ { "docid": "23460897", "title": "", "text": "89, 81 So. 2d 303. . Section 24. . Section 24. . Section 30. . Sections 4 and 5. . United States Bureau of Census. United States Census of Population: 1960. General Population Characteristics, Alabama. . See Mitchell et al., Plaintiffs, United States of America, Plaintiff and Amicus Curiae v. Johnson et al., Defendants, MD Ala., January 18, 1966, 250 F.Supp. 117. . An action such as the plaintiffs have brought here was suggested by Mr. Justice Jackson in his dissent in Cassell v. State of Texas, supra, as a “direct and effective” means to eliminate unconstitutional discrimination. . Title 30, § 21, Code of Alabama, Recompiled 1958, is the Alabama statute that restricts jury service to male citizens. That statute in pertinent part states as follows : “§ 21. Qualifications of persons on jury roll. — The jury commission shall place on the jury roll and in the jury box the names of all male citizens of the county * * Only three states — Alabama, Mississippi and South Carolina— totally bar women from jury service. All others either treat women and men on the same basis or provide some form of voluntary service for women. The prohibition against women serving on juries in Alabama does not apply to federal juries by reason of the Civil Rights Act of 1957, 28 U.S.C. § 1861-that Act deleting that portion of the law that disqualified persons for service on federal juries who are incompetent to serve on a grand or petit jury by the law of the state in which the federal district court is held. . The use of mandatory injunctions, where necessary to afford relief, as in this case, has been approved by the United States Court of Appeals for the Fifth Circuit in State of Alabama v. United States (1962), 304 F.2d 583. . It is not uncommon for courts, when declaring constitutional rights not previously recognized and declared, to delay for a reasonable time, in consideration of practical problems incident to an implementation of those rights, the actual exercise of the newly declared rights. Brown v. Board" } ]

[ { "docid": "1332049", "title": "", "text": "303, 25 L.Ed. 664 (1879). In City of Greenwood v. Peacock, (June 21, 1966), 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed. 944, the Supreme Court proceeded on the premise that 42 U.S.C. § 1981 qualifies as a ‘ law providing for * * * equal civil rights” within the meaning of section 1443(1). Nevertheless, under section 1443(1) the vindication of a defendant’s federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court. City of Greenwood v. Peacock, supra. See and compare State of Georgia v. Rachel, supra. Accordingly, Jones’ claim of the right of removal on the ground that, because of the custom in Virginia of excluding Negroes from juries, he cannot enforce his right to a nondiscriminatory selection of jurors must fail. There is no state or federal law which provides a clear basis of prediction, in advance of his trial, that this right will be denied him in the state courts. Strauder v. State of West Virginia, supra, in which removal was permitted on a claim that the petitioner could not enforce his right to a nondiscriminatory selection of a jury, involved a state statute which barred Negroes from jury service. Bailey v. Commonwealth, 193 Va. 814, 71 S.E.2d 368 (1952), relied upon by appellant, in no way sanctions the exclusion of Negroes from juries. Commonwealth v. Wallace, 357 F.2d 105 (4 Cir.), aff'd per curiam, 384 U.S. 891, 86 S.Ct. 1916, 16 L.Ed.2d 996 (June 20, 1966). For the same reason, appellant cannot succeed on his claim of inability to enforce in Virginia’s courts his right to be free of racially motivated unevenness in the imposition of punishment for criminal convictions. In fact, Virginia law clearly permits no discrimination whatsoever in the matter .of punishment meted out to one convicted of killing a prison guard. By Va.Code Ann. § 53-293 (Supp.1964), the" }, { "docid": "1271357", "title": "", "text": "Moore & VanDercreek, Multi-Party, Multi-Claim Removal Problems: The Separate and Independent Claim Under Section 1441(c), 46 Iowa L.Rev. 489 (1961). . This observation is particularly apt in this case. The Kemp defendants cross-bill in Richmond Circuit Court presumptively was filed pursuant to a rule of practice established by the Virginia Supreme Court that allows defendants to “assert against other defendants or against new parties any claim germane to the subject matter of the suit.\" Va.R.Ct. 2:14 (emphasis supplied). . As an aside, the Court believes that is among the more muddy passages in the United States Code. . Removal pursuant to § 1443(1), by contrast, is available to private persons as well as those acting under color of authority. Greenwood v. Peacock, 384 U.S. 808, 816, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). . Representative decisions illustrating particular federal statutes couched in the specific language of racial equality demanded by § 1443 include Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966) (42 U.S.C. §§ 1971, 1981); Georgia v. Rachel, 384 U.S. 780 (1966) (42 U.S.C. § 2000a); Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968) (42 U.S.C. § 1973i(b)). Several constitutional provisions, such as the First, Fifth, Thirteenth, and Fourteenth Amendments, have been held not to provide a basis for removal under § 1443. See City of Evanston v. Buick, 421 F.2d 595 (7th Cir. 1970). This Court believes that a provision of general application, such as the equal protection clause, may sustain removal under § 1443, but only if the alleged violation involves discrimination based on race. . 28 U.S.C. § 1447(d) precludes appellate review of remand decisions pursuant to § 1441. Remand decisions under § 1443, however, are appealable. See Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). . It has been suggested that a federal forum is preferable in this case because federal procedure, unlike State procedure, provides for class action litigation. That the federal rules allow class actions while State procedure does not is a fact of little consequence. A declaratory" }, { "docid": "5276752", "title": "", "text": "was expedited. Removal Pursuant to Section 1443 A federal district court’s order remanding an action to state court is not a final order and normally not appealable. See Royal v. State Farm Fire & Casualty Co., 685 F.2d 124 (5th Cir.1982). Jurisdiction for this court to hear this appeal must be found in 28 U.S.C. § 1447(d), which makes reviewable the remand of an action that involves civil rights issues within the ambit of § 1443. Under 28 U.S.C. § 1443, a “defendant” may remove a civil action or criminal prosecution from state to federal court if he “is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States .... ” This provision has consistently been construed narrowly to require strict satisfaction of both the “civil rights” element and the “enforcement” element intrinsic within it. The two-prong test has been stated as follows: First, it must appear that the right allegedly denied the removal petitioner arises under a federal law “providing for specific civil rights stated in terms of racial equality.” ... Second, it must appear, in accordance with the provisions of § 1443(1), that the removal petitioner is “denied or cannot enforce” the specific federal rights “in the courts of [the] State.” Williams v. Mississippi, 608 F.2d 1021, 1022 (5th Cir.1979), cert. denied, 449 U.S. 804, 101 S.Ct. 49, 66 L.Ed.2d 8 (1980), quoting Johnson v. Mississippi, 421 U.S. 213, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975). See also Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); Texas v. Reimer, 678 F.2d 1232, 1233 (5th Cir.1982). Because the first prong of this test demands that the civil rights asserted arise under laws phrased specifically in terms of racial equality rather than in general terms of equality for all citizens comprehensively, broad first amendment or fourteenth amendment claims do not satisfy the test, nor do claims arising under non-racially oriented statutes such as" }, { "docid": "5967510", "title": "", "text": "forth in § 1762 modify and define the more general criteria of intelligence, judgment and character, and that “considered as a whole, the statutes providing for selection of jurors are not void for vagueness, but reasonably definite standards.” Reed v. State, supra, at 806. The duty of the federal courts to protect the constitutional rights of all “does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character md intelligence for that civic duty.” Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 416, 97 L.Ed. 469, 498 (1953). III. Mississippi Code Annotated § 1762 (1942 Recomp.), prior to amendment on June 14, 1968, restricted the class of persons competent to serve as jurors to those who were, inter alia, “male citizens”. In § 1 of the Amended Act, the word “male” is deleted, thus permitting women to serve on juries. We need discuss in detail neither the applicable state substantive law nor the controlling federal constitutional principles, for we find that petitioner, a male, has no standing to complain of the prior systematic exclusion of women from juries in Mississippi. Suffice it to say that the Mississippi Supreme Court in State v. Hall, 187 So.2d 861 (Miss. 1966), appeal dismissed, Hall v. Mississippi, 385 U.S. 98, 87 S.Ct. 331, 17 L.Ed. 2d 196, held specifically that the state may constitutionally confine the class of competent jurors to males, relying most strongly upon Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), and forswearing any allegiance to the decision of a three-judge court in White v. Crook, 251 F.Supp. 401 (D.C.Ala.1966) declaring unconstitutional a similar Alabama statute (Ala.Code, Tit. 30 § 21 (1958)). Regardless of the unsettled state of the substantive law, the United States Supreme Court in Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947), and the United States Court of Appeals for the Fifth Circuit, Salisbury v. Grimes (January 14, 1969) 406 F.2d 50," }, { "docid": "1332048", "title": "", "text": "construed the section 1443(1) phrase —“law providing for * * * equal civil rights,” — State of Georgia v. Rachel, (June 21, 1966), 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, the removal petition asserts a deprivation of rights which are embodied in a statute which we assume qualifies as such a “law.” 42 U.S. C. § 1981 (1964), the present version of section 1 of the Civil Rights Act of 1866, 14 Stat. 27, provides: “All persons within the jurisdiction of the United States shall have the same right in every State * * * to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” (Emphasis added.) The Civil Rights Act of 1966 has been construed as conferring upon defendants a right to the selection of jurors on a nonracial basis. Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). In City of Greenwood v. Peacock, (June 21, 1966), 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed. 944, the Supreme Court proceeded on the premise that 42 U.S.C. § 1981 qualifies as a ‘ law providing for * * * equal civil rights” within the meaning of section 1443(1). Nevertheless, under section 1443(1) the vindication of a defendant’s federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court. City of Greenwood v. Peacock, supra. See and compare State of Georgia v. Rachel, supra. Accordingly, Jones’ claim of the right of removal on the ground that, because of the custom in Virginia of excluding Negroes from juries, he cannot enforce his right to a nondiscriminatory selection of jurors must fail. There is no state or federal law" }, { "docid": "2147320", "title": "", "text": "TUTTLE, Circuit Judge: This is an appeal from an order remanding to the state courts of Mississippi charges against the appellants, Sandra Adickes, Ben Achtenberg, Thomas L. Edwards, William D. Jones and Susan B. Patterson, for the crime of. yagrancy. The cases were removed to the district court on a petition that charged that the prosecution’s charges of vagrancy were based exclusively on attempts by the appellants to exercise rights guaranteed them under the 1964 Civil Rights Act. The issues for us to decide are whether these removal petitions allege grounds for removal which, if true, meet the standards set out in the case of State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966). If they do, and if the evidence adduced in opposition to remand of these cases establishes the truth of the allegations, then the order of remand must be vacated since the State did not see fit to offer any counter testimony. Incidentally, the state has not seen fit to file a brief in this appeal. The order of the trial court granting the petition for remand of these cases came shortly after the passage of the Civil Rights Act of 1964, but a year before the decision by the Supreme Court in the removal cases: State of Georgia v. Rachel, supra and City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). The five cases here combined for appeal purposes are grouped into two classes. We deal first with the case of Ach-tenberg, Edwards, Jones and Miss Patterson, since they were all acting together at the time of their arrests. Of these four, appellant, William D. Jones, is a Negro school teacher from New York state. The other three, Ben Achtenberg, Thomas E. Edwards and Miss Susan B. Patterson were white persons associated with a project being conducted in Mississippi as the COFO Mississippi Summer Project, which is described in the removal petition as being engaged in assisting Negroes assert their civil rights in the state of Mississippi. The removal petition in the Jones" }, { "docid": "13868280", "title": "", "text": "section 1447(d) was added in 1964, see Thermtron, 96 S.Ct. at 598 n. 7, and under it the Supreme Court has on several occasions reviewed appeals from orders remanding cases which had been removed under section 1443. See State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 1786, 16 L.Ed.2d 925 (1966), affirming Rachel v. State of Georgia, 342 F.2d 336, 337 & n. 1 (5th Cir.1965); City of Greenwood, Mississippi v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 1804-05, 16 L.Ed.2d 944 (1966), reversing Weathers v. City of Greenwood, Mississippi, 347 F.2d 986 (5th Cir.1965) and Peacock v. City of Greenwood, Mississippi, 347 F.2d 679 (5th Cir.1965); Johnson v. Mississippi, 421 U.S. 213, 95 S.Ct. 1591, 1595, 44 L.Ed.2d 121 (1975), affirming Johnson v. Mississippi, 488 F.2d 284 (5th Cir.1974). Thermtron made no reference to the holdings in these cases, as it doubtless would have if the Court had there intended to hold that after the 1964 amendment to section 1447(d) orders remanding cases removed under section 1443 could not be reviewed by appeal but only by mandamus. Further, numerous decision of this Court have held that such orders can be reviewed by appeal. See, e.g., Robinson v. State of Florida, 345 F.2d 133, 134 (5th Cir.1965); Congress of Racial Equality v. Town of Clinton, 346 F.2d 911, 913-14 (5th Cir.1964); Sunflower County Colored Baptist Association v. Trustees of Indianola Municipal Separate School District, 369 F.2d 795 (5th Cir. 1966); Varney v. State of Georgia, 446 F.2d 1368 (5th Cir. 1971). We have so held following Thermtron. See Robertson v. Ball, 534 F.2d 63 (5th Cir.1976) (which cites Thermtron); State of Texas v. Gulf Water Benefaction Co., 679 F.2d 85, 86 (5th Cir.1982); Smith v. Winter, 717 F.2d 191 (5th Cir.1983). The above-cited decisions, many of which affirmed the remand, obviously do not turn on whether the section 1443 removal was proper. In Royal, we did not purport to disapprove of any of these cases. Consequently, we construe the statements in Thermtron and Royal to the effect that any review of remand orders must be by mandamus" }, { "docid": "7143934", "title": "", "text": "application for a stay pending appeal. On November 2, 1966, a stay of remand pending appeal was granted by a panel of this court. It is immediately apparent that the issue here for our consideration is whether this case falls within that class of cases which the United States Supreme Court in State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, 1966, held may properly be removed under the provisions of 28 U.S.C.A. § 1443(1), or whether it falls within the remaining class of cases which the Supreme Court said in City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 1966, were not removable under the Civil Rights removal statute. In the Rachel case, the Supreme Court held that if, as alleged in the removal petition, the state prosecution of the mov-ants was being pursued by the state authorities for a violation of the state trespass statute (which made it a crime for a person not to leave the premises of another when requested to do so) solely because the movants were requested to leave a place of public accommodation (a restaurant) on account of their race or color, such prosecution by the state of Georgia was expressly prohibited by Section 203 of the Civil Rights Act. “No person shall * * * intimidate, threaten, or coerce, or attempt to intimidate, threaten or coerce any person with the purpose of interfering with any right or privilege secured by section 2000a [Section 201 of the Act] of this title or (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured, by section 2000a or 2000a-l of this title.” Pub.L. 88-352 Title II § 203, 78 Stat. 244. Such a prosecution, the Court held, would provide a basis for a trial court to make a “firm prediction that the defendant would be ‘denied or cannot enforce’ the specified federal rights in the state courts.” This was so because the federal statutes specifically prohibited the prosecution [punishment] of any person seeking to exercise" }, { "docid": "7310416", "title": "", "text": "specific civil rights stated in terms of racial equality.” Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966). Second, the petitioner must show that he has been denied or cannot enforce that right in the state courts. Id. at 794, 86 S.Ct. 1783. After reviewing Conley’s removal petition, we conclude that it does not satisfy the Rachel test. A. Law Providing for Equal Civil Rights Conley alleges that the eminent domain action filed by ASU denied his rights under 42 U.S.C. §§ 1981, 1983 and 1985(3), and under the Equal Protection Clause of the Fourteenth Amendment. Under the first prong of Rachel, we must determine whether any of these asserted rights falls within the scope of § 1443(1). The phrase “any law providing for ... equal civil rights” refers to laws “providing for specific civil rights stated in terms of racial equality,” and does not include rights of “general application available to all persons or citizens.” Rachel, 384 U.S. at 792, 86 S.Ct. 1783. Our predecessor circuit, in a case very similar to the one presented by Conley, held that a defendant’s “right to a fair trial and equal protection of the laws and [his] rights under 42 U.S.C. § 1983 do not arise from legislation providing for specific civil rights in terms of racial equality....” See Sunflower County Colored Baptist Ass’n v. Trustees of Indianola Mun. Separate Sch. Dist., 369 F.2d 795, 796 (5th Cir.1966). Therefore, to the extent Conley relies upon broad assertions under the Equal Protection Clause or § 1983, those rights are insufficient to support a valid claim for removal under § 1443(1). However, in City of Greenwood v. Peacock, decided on the same day as Rachel, the United States Supreme Court recognized that § 1981 qualifies under § 1443(1) as a law providing specific civil rights stated in terms of racial equality. See City of Greenwood v. Peacock, 384 U.S. 808, 825, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). Furthermore, neither the Supreme Court nor this circuit has addressed whether § 1985(3), the other federal statute ‘cited by Conley, qualifies" }, { "docid": "3204913", "title": "", "text": "or for refusing to do any act on the ground that it would be inconsistent with such law.” In Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), the Supreme Court made clear that § 1443(1) had two requirements that must be met. Petitioners for removal must show that the right relied upon is one conferred by a law providing for specific civil rights stated in terms of racial equality and it is denied or cannot be enforced in state court. In the companion case of City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966), the court held that removal under § 1443(2) was available only to federal or state officers. . “(b) Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with — * * * “(4) any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from— “(A) participating, without discrimination on account of race, color, religion or national origin, in any of the benefits or activities described in sub-paragraphs (1) (A) through (1) (E) or subparagraphs (2) (A) through (2) (F) * * * [shall be punished by fine or imprisonment].” Subparagraph (1) (E) refers to participation in or enjoyment of benefits of any program or activity receiving federal financial assistance. In its petition for removal appellant relied also on alleged “equal civil rights” conferred by 42 U.S.C. §§ 1981-83 (1970) and by the thirteenth and fourteenth amendments to the Constitution. No further reliance on these alleged rights has been brought to our attention at the appellate level, and we do not consider them. . § 245 is a criminal statute that in terms confers no rights. It prohibits and provides penalties for certain types of conduct relative to protected activities enumerated therein. . For examples of those rare situations see Georgia v. Rachel supra, footnote 1 (defendants charged under Georgia trespass statute" }, { "docid": "3786315", "title": "", "text": "F.Supp. 36, 37 (D.Or.1968), that VISTA workers are “‘person [s] acting under [an officer of the United States]’ within the meaning of 28 U.S.C. § 1442(a)”, we do not have jurisdiction to review this issue, or to decide whether appellants’ removal petition, with or without the proposed amendments, is sufficient. See House v. Dorsey, 408 F.2d, 1008 (4th Cir. 1969); In re Bear River Drainage District, 267 F.2d 849 (10th Cir. 1959). We do, however, have jurisdiction to review the District Judge’s ruling on the appropriateness of removal under 28 U.S.C. § 1443. Appellants contend that removal was proper under 28 U.S.C. § 1443(2), which authorizes removal of an action commenced in a state court as a result of an act performed “under color of authority derived from [a] law providing for equal rights”, and they request permission to amend their removal petition to allege this as a basis for removal. Appellants also contend that the decision in Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783 (1966), is not determinative since it involved section 1443 (1) and was prompted by policy considerations not germane to removal under section 1443(2). In particular, appellants assert that in Georgia v. Rachel the Supreme Court was concerned about the flood of litigation that would be removed to federal courts if section 1443 (1) was not interpreted restrictively to apply only to cases involving “civil rights stated in terms of racial equality.” Id. at 792, 86 S.Ct. at 1790; see Georgia v. Rachel, 384 U.S. at 788 n. 8, 86 S.Ct. at 1788. The court-imposed limitation in section 1443(2) restricting removal to cases involving federal officers and persons assisting federal officers, City of Greenwood, Miss. v. Peacock, 384 U.S. 805, 815, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966), effectively forecloses a floodgates problem under this subsection, and, ap pellant contends, eliminates the necessity of restricting removal to racial equality cases. Although we grant appellants’ motion to amend their removal petition in this respect, we nevertheless affirm the District Court’s order remanding the injunction proceeding to the state court. We do not think the Supreme" }, { "docid": "13868279", "title": "", "text": "judgment reviewable by appeal.” 96 S.Ct. at 594. In Royal, removal was likewise not under section 1443, but rather was under section 1441(a), being based on diversity. The Royal remand order was challenged on the basis of the Thermtron judicial exception to the nonreviewability provision of the first clause of section 1447(d). Royal stated that such a challenge could be raised only by mandamus; but that even if we treated the appeal as a petition for mandamus, relief would nevertheless be denied since the remand order did not purport to be based on grounds not cognizable under section 1447(c) and the case was hence not within the Thermtron exception to the first clause of section 1447(d). 685 F.2d at 126. By contrast, in the present case, removal was purportedly based on section 1443, and hence we are concerned, as Thermtron and Royal were not, with the second clause of section 1447(d) which expressly provides that remand orders of cases removed under section 1443 \"shall be reviewable by appeal or otherwise.” (Emphasis added.) This portion of section 1447(d) was added in 1964, see Thermtron, 96 S.Ct. at 598 n. 7, and under it the Supreme Court has on several occasions reviewed appeals from orders remanding cases which had been removed under section 1443. See State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 1786, 16 L.Ed.2d 925 (1966), affirming Rachel v. State of Georgia, 342 F.2d 336, 337 & n. 1 (5th Cir.1965); City of Greenwood, Mississippi v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 1804-05, 16 L.Ed.2d 944 (1966), reversing Weathers v. City of Greenwood, Mississippi, 347 F.2d 986 (5th Cir.1965) and Peacock v. City of Greenwood, Mississippi, 347 F.2d 679 (5th Cir.1965); Johnson v. Mississippi, 421 U.S. 213, 95 S.Ct. 1591, 1595, 44 L.Ed.2d 121 (1975), affirming Johnson v. Mississippi, 488 F.2d 284 (5th Cir.1974). Thermtron made no reference to the holdings in these cases, as it doubtless would have if the Court had there intended to hold that after the 1964 amendment to section 1447(d) orders remanding cases removed under section 1443 could not be reviewed" }, { "docid": "22364201", "title": "", "text": "The blanket exclusion of women was declared unconstitutional in White v. Crook, 251 F. Supp. 401, 408-409; thereafter Alabama amended its statutes to render women eligible. § 21 (1). The trial judge may, however, excuse them from jury duty for good cause shown. § 21. The requirement that the commission place the name of every qualified, nonexempt person on the jury roll is permissive, not mandatory, in that the jury commission’s failure to do so does not, absent fraud or denial of constitutional rights, compel the quashing of the indictment or venire. Fikes v. State, 263 Ala. 89, 95, 81 So. 2d 303, 309, rev’d on other grounds, 352 U. S. 191; see Swain v. Alabama, 380 U. S. 202, 207 n. 3; White v. Crook, supra, at 403 n. 6; Mitchell v. Johnson, supra, at 119 n. 5. Bokulich v. Jury Commission of Greene County, 298 F. Supp. 181, 187-188. (Footnotes omitted.) Coleman v. Barton, No. 63-4 (N. D. Ala. 1964). The opinion is unreported. See 298 F. Supp., at 184. In 1966 Alabama still limited jury service to males. See n. 2, supra. The District Court rejected the appellees’ contention that an emigration of younger and better-educated Negroes from the county in the 1960’s accounted for the disparity between the racial composition of the county in 1960 and of the jury rolls during the succeeding years of the decade. 298 F. Supp., at 188. See Coleman v. Alabama, 389 U. S. 22, 23. Other plaintiffs in the suit sought similar relief, as well as an injunction to prevent the grand jury from considering charges of grand larceny then outstanding against them. The District Court denied relief with respect to those plaintiffs, and they took a separate appeal. We affirmed that portion of the District Court’s judgment last Term, and those plaintiffs are no longer before us. Bokulich v. Jury Commission of Greene County, 394 U. S. 97 (per curiam). Arnold v. North Carolina, 376 U. S. 773 (per curiam); Eubanks v. Louisiana, 356 U. S. 584; Reece v. Georgia, 350 U. S. 85, 87; Cassell v. Texas, 339" }, { "docid": "22364200", "title": "", "text": "basis, from which to select qualified jurors.” Mitchell v. Johnson, 250 F. Supp. 117, 123. The commission may not select any person who is under 21, a habitual drunkard, unfit to discharge a juror’s duties because afflicted with a permanent disease or physical weakness, or unable to read English, nor anyone who has been convicted of an offense involving moral turpitude. A person who would be disqualified only because he cannot read English is still eligible for jury service if he is a freeholder or householder. A person over 65 may not be required to serve but is eligible if he is willing to do so. §21. The commission is also required to exempt various classes of persons, based on their occupation, unless they consent to serve. § 3. In addition, the court may excuse any person who appears to be unfit to serve on a jury, or who is disqualified or exempt, “or for any other reasonable or proper cause . . . .” §§4, 5. Until 1966 only men were eligible for service. The blanket exclusion of women was declared unconstitutional in White v. Crook, 251 F. Supp. 401, 408-409; thereafter Alabama amended its statutes to render women eligible. § 21 (1). The trial judge may, however, excuse them from jury duty for good cause shown. § 21. The requirement that the commission place the name of every qualified, nonexempt person on the jury roll is permissive, not mandatory, in that the jury commission’s failure to do so does not, absent fraud or denial of constitutional rights, compel the quashing of the indictment or venire. Fikes v. State, 263 Ala. 89, 95, 81 So. 2d 303, 309, rev’d on other grounds, 352 U. S. 191; see Swain v. Alabama, 380 U. S. 202, 207 n. 3; White v. Crook, supra, at 403 n. 6; Mitchell v. Johnson, supra, at 119 n. 5. Bokulich v. Jury Commission of Greene County, 298 F. Supp. 181, 187-188. (Footnotes omitted.) Coleman v. Barton, No. 63-4 (N. D. Ala. 1964). The opinion is unreported. See 298 F. Supp., at 184. In 1966 Alabama" }, { "docid": "14731386", "title": "", "text": "of the State of Ohio.” Then, without citation to any statute or decision, she again conclusionally asserts : “that the statutory and decisional law of the State of Ohio, separately and together, prevent presentation of the described conditions at trial in the courts of the State of Ohio for consideration by the jury * * Neither in the District Court nor in her address to us did appellant set out any statute of Ohio or any decision of its courts to support her above allegations. The District Judge reviewed the Ohio statutes and its decisional law and quite properly concluded that nothing therein contained would authorize any discriminatory visitation upon appellant because of her race. We are likewise satisfied that such is true. We so conclude from the District Judge’s finding and from our own notice of relevant Ohio law. We consider that the recent Supreme Court decisions in Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), and Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966), support the action of the District Judge and require our affirmance of his judgment. Although removal of state criminal prosecutions was there involved, these cases provide controlling law for the present case by virtue of the exhaustive general treatment there given by the Supreme Court to the scope of removal under § 1443(1). In Georgia v. Rachel, Negroes had been arrested when seeking service at privately owned restaurants. They were indicted under a Georgia statute making it a misdemeanor to refuse to leave the premises of another when requested to do so by a person in charge thereof. The Supreme Court held that the cases were removable because the Georgia law came directly into collision with the Civil Rights Act of 1964, which provided for specific civil rights in terms of racial equality. In Greenwood v. Peacock, removal was denied in that the persons there involved were prosecuted for obstructing public streets, for assault, disturbing the peace, interfering with an officer in the performance of his duty and a miscellany of other violations of" }, { "docid": "7310417", "title": "", "text": "very similar to the one presented by Conley, held that a defendant’s “right to a fair trial and equal protection of the laws and [his] rights under 42 U.S.C. § 1983 do not arise from legislation providing for specific civil rights in terms of racial equality....” See Sunflower County Colored Baptist Ass’n v. Trustees of Indianola Mun. Separate Sch. Dist., 369 F.2d 795, 796 (5th Cir.1966). Therefore, to the extent Conley relies upon broad assertions under the Equal Protection Clause or § 1983, those rights are insufficient to support a valid claim for removal under § 1443(1). However, in City of Greenwood v. Peacock, decided on the same day as Rachel, the United States Supreme Court recognized that § 1981 qualifies under § 1443(1) as a law providing specific civil rights stated in terms of racial equality. See City of Greenwood v. Peacock, 384 U.S. 808, 825, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). Furthermore, neither the Supreme Court nor this circuit has addressed whether § 1985(3), the other federal statute ‘cited by Conley, qualifies as an “equal civil rights” statute. For purposes of this appeal, we assume without deciding that § 1985(3) meets Rachel’s definition of an equal civil rights statute under § 1443(1). See Davis v. Glanton, 107 F.3d 1044, 1049-50 (3d Cir.1997) (declining to address whether § 1985(3) constitutes an “equal civil rights” statute within the meaning of § 1443(1), but noting that there are “strong arguments on both sides in terms of jurisprudence”). Nonetheless, we conclude that the district court properly remanded this action because, for reasons described herein, we find that Conley has failed to satisfy the second prong of Rachel. B. Right Denied or Unenforceable in State Courts Generally, the denial of the petitioner’s equal civil rights must be “manifest in a formal expression of state law.” Rachel, 384 U.S. at 803, 86 S.Ct. 1783. This requirement ensures that removal is available only in cases where the denial of the right can be clearly predicted and avoids involving federal judges in “the unseemly process of prejudging their brethren of the state courts.” Id. at" }, { "docid": "5967511", "title": "", "text": "law nor the controlling federal constitutional principles, for we find that petitioner, a male, has no standing to complain of the prior systematic exclusion of women from juries in Mississippi. Suffice it to say that the Mississippi Supreme Court in State v. Hall, 187 So.2d 861 (Miss. 1966), appeal dismissed, Hall v. Mississippi, 385 U.S. 98, 87 S.Ct. 331, 17 L.Ed. 2d 196, held specifically that the state may constitutionally confine the class of competent jurors to males, relying most strongly upon Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), and forswearing any allegiance to the decision of a three-judge court in White v. Crook, 251 F.Supp. 401 (D.C.Ala.1966) declaring unconstitutional a similar Alabama statute (Ala.Code, Tit. 30 § 21 (1958)). Regardless of the unsettled state of the substantive law, the United States Supreme Court in Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947), and the United States Court of Appeals for the Fifth Circuit, Salisbury v. Grimes (January 14, 1969) 406 F.2d 50, have made it clear beyond doubt that Federal Courts will not entertain a defendant’s objection to systematic exclusion of a class unless he is a member of that class. We find that the foregoing contentions of petitioner have been fully and fairly adjudicated in the Mississippi state courts, both as to the relevant facts and controlling federal constitutional principles. Therefore, these issues may not be further litigated here, and petitioner’s request for an evidentiary hearing thereon will be denied. IV. Examination of petitioner’s claim of systematic exclusion of Negroes from the jury list and venire from which the grand jury was drawn compels a different result, however. We grant an evidentiary hearing to further develop the facts for the reasons set forth herein. The controlling principles of law in this area are clear and undisputed. A conviction in a state court violates the Equal Protection clause of the Fourteenth Amendment if it is based on an indictment of a grand jury or a verdict of a petit jury from which Negroes were excluded because of" }, { "docid": "5276753", "title": "", "text": "federal law “providing for specific civil rights stated in terms of racial equality.” ... Second, it must appear, in accordance with the provisions of § 1443(1), that the removal petitioner is “denied or cannot enforce” the specific federal rights “in the courts of [the] State.” Williams v. Mississippi, 608 F.2d 1021, 1022 (5th Cir.1979), cert. denied, 449 U.S. 804, 101 S.Ct. 49, 66 L.Ed.2d 8 (1980), quoting Johnson v. Mississippi, 421 U.S. 213, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975). See also Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); Texas v. Reimer, 678 F.2d 1232, 1233 (5th Cir.1982). Because the first prong of this test demands that the civil rights asserted arise under laws phrased specifically in terms of racial equality rather than in general terms of equality for all citizens comprehensively, broad first amendment or fourteenth amendment claims do not satisfy the test, nor do claims arising under non-racially oriented statutes such as 42 U.S.C. § 1983. See Georgia v. Rachel, 384 U.S. at 792, 86 S.Ct. at 1790; Louisiana v. Rouselle, 418 F.2d 873, 874 (5th Cir.1969). Because it confers rights specifically in terms of racial equality, the Voting Rights Act may support § 1443 removal. Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir.1968). In seeking to satisfy the first prong of the test, the plaintiffs have asserted rights arising from one specific alleged violation of 42 U.S.C. § 1973c and from other alleged infringements of their rights arising generally under 42 U.S.C. § 1973. Because we find that the allegations establish neither a violation of § 1973c nor any other claim cognizable under § 1973, removal under § 1443 must fail. Hence we do not address other questions that arise about the appropriateness of § 1443 removal in these peculiar circumstances. Specifically, we express no opinion on whether the Claiborne County Removal Council constitutes a “court” within the meaning of § 1443; whether the proceedings there constituted “civil actions or criminal prosecutions”; whether Smith," }, { "docid": "6332509", "title": "", "text": "order statutes. The grand jury indicted both Miss Walker and Forman, then Executive Secretary of SNCC, on the judicially prescribed charges for their “alleged” role in an attempt to obtain routine service at Leb’s Restaurant. ' Up to this time (some 22 months) the sit-in attempt at Leb’s had led to no charges against anyone even for trespass. It has still led to no charges against any of the persons who gained an entrance to the restaurant. Miss Walker and Mr. Forman alleged in their petition for removal that the statutes under which they are charged as applied and used against them infringe upon and deprive them of their equal rights and access to places of public accommodations in violation of the specific grants of Title II of the Civil Rights Act of 1964, and that they are denied and/or cannot enforce in the courts of the State of Georgia rights under the laws of the United States providing for the equal rights of citizens as guaranteed under Title II of the 1964 Civil Rights Act. The defendants removed the case to the United States Court for the Northern District of Georgia, which upon motion of the State of Georgia remanded it to the state court. This appeal followed. Once again, this court is called upon to determine whether another case falls within the permissible scope of removal under the principles announced by the Supreme Court in State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966) and City of Greenwood, Mississippi v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944. While we agree that the permissible scope for removal is narrow and limited, we have held that the right of removal of a state criminal prosecution has not been restricted by the Supreme Court to the small group of eases in which a state prosecution for trespass seeks to forbid the enjoyment of the right to equal accommodation guaranteed under Title II of the Civil Rights Act of 1964. See Whatley v. City of Vidalia, 5 Cir., 399 F.2d 521, 527 (1968)" }, { "docid": "3204912", "title": "", "text": "be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that these rights will inevitably be denied by the very act of bringing the defendant to trial in the state court.” City of Greenwood v. Peacock, 384 U.S. 808, 827-828, 86 S.Ct. 1800, 1812, 16 L.Ed.2d 944, 956-957 (1966) The District Court, 323 F.Supp. 286, correctly granted the motion to remand. Affirmed. . “ § 1443. Civil rights cases “Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending r “(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof ; “(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” In Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), the Supreme Court made clear that § 1443(1) had two requirements that must be met. Petitioners for removal must show that the right relied upon is one conferred by a law providing for specific civil rights stated in terms of racial equality and it is denied or cannot be enforced in state court. In the companion case of City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966), the court held that removal under § 1443(2) was available only to federal or state officers. . “(b) Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with — * * * “(4) any person because he is or has been, or in order to intimidate such person or any" } ]

[ { "docid": "22014088", "title": "", "text": "castes. As will be developed further in this opinion, the action is particularly ironic in that it is being brought by members of the second ranking caste, pursuant to an Act of Congress intended to eliminate discrimination, seeking the perpetuation of the fruits of the discriminatory system. Plaintiffs’ initial hurdle in seeking to prosecute this action under Title VII is that their charges of discrimination filed with the EEOC were filed more than ninety days after each respective act. The charges of discriminatory layoff in 1965 were filed more than one and one-half years after the layoff, and the charges concerning the reassignment in 1967 were filed more than six months after it occurred. The applicable period of limitation for filing a charge of discrimination under Title VII was ninety days. 42 U.S.C. § 2000e-5(d). It is well settled that the filing of a charge of discrimination with the EEOC within ninety days of the act alleged to have been discriminatory is a jurisdictional prerequisite to the institution of a civil action under 42 U.S.C. § 2000e-5. Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969); Mickel v. S. C. State Employment Service, 377 F.2d 239 (4th Cir. 1967), cert. den. 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166 (1967). On the other hand, it is equally well established that where the discrimination is a product of a pattern or practice which serves to perpetuate the effects of prior discrimination, the discrimination is considered to be continuous and the ninety day period of limitation is rendered inapplicable. Robinson v. Lorillard Corporation, 444 F.2d 791 (4th Cir. 1971); Cox v. United States Gypsum Co., 409 F.2d 289 (7th Cir. 1969); Sciaraffa v. Oxford Paper Co., 310 F.Supp. 891 (D.Me.1970). The dis-positive question, therefore, is whether the alleged acts of discrimination constituted a continuing violation of Title VII. After much consideration, it is concluded that they do not, and accordingly, Count I of the complaint will be dismissed for lack of jurisdiction. Plaintiffs’ theory for finding a continuing violation of Title VII is not at all illogical. First, the layoff" } ]

[ { "docid": "19383910", "title": "", "text": "the judgment, and remanded for consideration in the light of the Title VII decision in Mohasco. Ciccone v. Textron, Inc., 449 U.S. 914, 101 S.Ct. 311, 66 L.Ed.2d 143 (1980). On remand, the First Circuit Court of Appeals found that “[t]he rationale in Mohasco strongly suggests, if it does not compel, the conclusion that it is to control in situations such as the present.” Ciccone v. Textron, Inc., 651 F.2d 1 (1st Cir.1981) (per curiam). Although Mohasco Corporation v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980) is not precisely on point, it contains persuasive language which supports Appellant’s position. Before the Mo-hasco decision, there was a split in the circuits over when an aggrieved person had to file in a deferral state to benefit from the extended federal filing period in 42 U.S.C. § 2000e-5(e). Compare Dubois v. Packard Bell, 470 F.2d 973 (10th Cir.1973), and Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir.1975) (citing Dubois with approval and holding that state charge must be filed within 180 days to qualify for 300-day extended federal period regardless of state limitation) with Moore v. Sunbeam Corporation, 459 F.2d 811 (7th Cir.1972) (when employee submitted charge to EEOC before state filing, charge was deemed filed upon termination of state proceeding or 60 days after initial EEOC filing; charge was timely filed if initial filing occurred in extended federal period minus 60 days). See also other cases holding contrary to Olson and Dubois: Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723 (6th Cir.1972) (interpreting earlier version of § 2000e-5 to allow the extended federal period to be tolled by submission of original charge with EEOC, which automatically deferred to state agency) and Doski v. M. Goldseker Company, 539 F.2d 1326 (4th Cir.1976) (holding charge was timely when employee filed with state agency which terminated and transferred charge to EEOC within 300 days). The Supreme Court rejected the “Olson approach” in Mohasco as “not compelled by the statute.” It reasoned: Although that construction is consistent with the general rule announced at the beginning of Section 706(e) [42" }, { "docid": "6259275", "title": "", "text": "motion: (1) All of the plaintiffs’ claims filed beyond either the Colorado Civil Rights Commission’s (hereinafter “CCRC”) 180-day limitations period or the federal Equal Employment Opportunity Commission’s (hereinafter “EEOC”) extended 300-day limitations period, are time-barred; (2) This court lacks jurisdiction over the plaintiffs’ claims that are not specifically within the scope of their charges before the EEOC; and (3) The plaintiffs’ claims that the defendants discriminated against them by hiring Darlene Gill, a white person with lesser qualifications, for the position of bilingual supervisor, fail to state claims upon which relief may be granted since the named defendants did not make that employment decision. For the reasons expressed in this opinion, the defendants’ motion for partial summary judgment is granted in part and denied in part. I. TIMELINESS OF ADMINISTRATIVE COMPLAINTS When congress enacted Title VII it included certain mandatory administrative procedures with distinct time limitations for bringing employment discrimination claims. Among those procedures is the requirement of timely filing of charges before the EEOC as a prerequisite to maintaining a Title VII action in federal district court. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); Romero v. Union Pac. R.R. Co., 615 F.2d 1303, 1311 (10th Cir. 1980). 42 U.S.C. § 2000e-5(e) provides that: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State" }, { "docid": "4879414", "title": "", "text": "defects alleged by defendant Sherwin-Willians. It appears from the pleadings that defendant was not aware of the unsworn charge filed with the EEOC on December 7, 1972. Nevertheless, this charge filed six days after the alleged maternity leave violation clearly meets the jurisdictional requirement of 42 U.S.C. § 2000e-5(e) (Supp. II 1972). The other allegations of unlawful employment practices under Title VII are of a continuous nature and, therefore, the 180-day limitations period for filing a charge with the EEOC does not apply. Mixson v. Southern Bell Tel. & Tel. Co., 334 F. Supp. 525 (N.D.Ga.1971). The amended charge of March 12, 1975, relates back to the original charge and is therefore timely. Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). The question surrounding the 90-day period during which suit must be filed is more difficult. This requirement is codified in Section 706(f)(1) of Title VII which; in relevant part, provides that: “If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section ... or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, thé Commission * * * shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to foe aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice” [emphasis added]. 42 U.S.C. § 2000e-5(f)(1). A Title VII complainant must not only receive and act upon the appropriate notice from the EEOC, but he must do so in a timely fashion since compliance with the 90-day limitation period is a “mandatory and" }, { "docid": "528927", "title": "", "text": "jurisdiction. Nichols satisfied the administrative prerequisites for bringing an action in federal court under Title VII. Her actions at the OCRC constituted initially instituting proceedings with the OCRC, and thus her filing with the EEOC was timely, giving the district court subject matter jurisdiction to decide her claim on the merits. Before a plaintiff alleging discrimination under Title VII can bring suit in federal court, she must satisfy two administrative prerequisites: “(1) by filing timely charges of employment discrimination with the EEOC, and (2) receiving and acting upon the EEOC’s statutory notices of the right to sue.” Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1486 (6th Cir.1989)(citing 42 U.S.C. § 2000e-(f)(1); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Pursuant to 42 U.S.C. § 2000e-5(e)(1), a charge is timely when the aggrieved filed with the EEOC within 180 days after the allegedly unlawful prac tice occurred. An exception lies for charges initially instituted with a state agency: [I]n a case of unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a state or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier ... Id. The central issue in this case is whether this provision is properly understood to provide that an individual who has presented her written and signed charge to the state agency has “initially instituted proceedings” with that agency, regardless of whether the state agency takes further action on the claim. Because the OCRC is an authorized state agency under 42 U.S.C. § 2000e-5(e)(1), the determination turns on whether Nichols initiated proceedings with the OCRC when she presented her claim to an OCRC intake officer. Nichols and the" }, { "docid": "23697252", "title": "", "text": "(EEOC) within the time required by Title VII. The motion to dismiss Count III was based on the contention that the § 1981 cause of action was barred by the statute of limitations. The court sustained the motion to dismiss as to all counts and dismissed plaintiff’s 'complaint by order dated July 15, 1975. It denied plaintiff’s motion for reconsideration on August 6, 1975. As grounds for reversal, plaintiff urges: I. The court erred in determining that it lacked jurisdiction over Counts I and II because it erroneously concluded that plaintiff had failed to meet the time limitation requirement for filing a charge with the EEOC. II. The court erred in ruling that Count III, based on § 1981, was barred by § 516.-120 R.S.Mo. (1969). We reject such contentions for the reasons hereinafter set out and affirm. I. The timely filing of a charge of discrimination with the EEOC is a prerequisite to court action under Title VII. Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1231 (8th Cir. en banc 1975); Terry v. Bridgeport Brass Co., 519 F.2d 806, 807 (7th Cir. 1975). Plaintiff was discharged by defendant on February 6, 1970, and did no work for the defendant after that date. She continued on the payroll until March 3, 1970, likely because of fringe benefits. In Olson, supra at 1234, we squarely held that the termination of employment puts at rest the employment discrimination because the discharged individual is no longer an employee. We further held that the date of discharge or resignation is the controlling date and that a charge of employment discrimination must be filed in relation to such date. Id. Thus the time for filing the required charge in the present case commenced to run on the date of the discharge, February 6, 1970. On February 6, 1970, 42 U.S.C. § 2000e-5(d) required that detailed written charges of discrimination be filed with the EEOC within 90 days after the unlawful employment practice. This statute was amended in 1972, effective March 24, 1972, was renumbered 42 U.S.C. § 2000e-5(e), and in respects here material increased" }, { "docid": "22259003", "title": "", "text": "defendants and to provide the Secretary with an opportunity to eliminate the alleged unlawful practice through informal methods of conciliation”. Id. at 534. The Ewald and Ciccione construction of the statute is not necessary to achieve this purpose, because “[a] claim can hardly be la-belled ‘old’ after 300 days, when the statute of limitations for ADEA claims is two years”. Ewald, 620 F.2d at 1189 (Jones, J., dissenting). Ewald and Ciccone also relied upon analogy to the similar filing provisions in Title VII, under which a complainant has 180 days to file with the EEOC in a nondeferral state and 300 days in a deferral state. See 42 U.S.C. § 2000e-5(e). The Ewald and Ciccone courts correctly stated that the provisions of Title VII and cases construing them may be used to interpret the ADEA. At that time, however, a dispute existed on the issue whether section 2000e-5(e) requires a grievant to commence state proceedings within 180 days of an alleged violation in order to have the 300 days for filing the federal charge. Compare Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1233 (8th Cir. 1975) (en banc) (180 days) with Doski v. M. Goldseker Co., 539 F.2d 1326, 1329-1333 (4th Cir. 1976) (300 days). Relying heavily on the rationale of the Olson case, the Ewald and Ciccone courts held that the ADEA filing periods should be construed as Olson construed the Title VII filing periods. The Olson court’s interpretation of the Title VII filing period, however, has not been accepted by all other circuits considering the issue. See Doski, 539 F.2d at 1330-33; Silver v. Mohasco Corp., 602 F.2d 1083, 1087 (2d Cir. 1979) (300 days to file), rev’d on other grounds, Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). In our recent decision in Wiltshire v. Standard Oil Co., 652 F.2d 837 at 839 (9th Cir. 1981), we rejected Olson and found that 300 days was the proper time limit. Moreover, in Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), the Supreme Court disapproved of" }, { "docid": "8824850", "title": "", "text": "the complaint was dismissed. The timely filing of a charge of discrimination with the EEOC is a jurisdictional prerequisite to court action under Title VII. Greene v. Carter Carburetor Co., 532 F.2d 125, 126 (8th Cir.1976); Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1231 (8th Cir.1975) (en banc). Under 42 U.S.C. § 2000e-5(e), Smith was required to file charges with the EEOC within 180 days after the occurrence of the allegedly unlawful employment practice. The District Court found that the wrong complained of, a discriminatory refusal to hire, occurred on October 27, 1972, more than 180 days prior to the filing of administrative charges on August 24, 1973. The appellant concedes that the wrong first occurred on that date, but argues that it was a continuing one, the effects of which were felt within the 180-day period, and that the charges filed with the EEOC was thus timely- This Court has recognized that circumstances may warrant a finding that past discrimination is continuing so as to indefinitely extend the time for filing charges with the EEOC. See Olson v. Rembrandt Printing Co., supra at 1233-1234; Richard v. McDonnell Douglas Corporation, 469 F.2d 1249, 1252-1253 (8th Cir.1972). As the Court stated in Olson at 1234: The rationale underlying the allowance of actions for continuing discrimination is to provide a remedy for post actions which operate to discriminate against the complainant at the present time. It has been cautioned, however, that to loosely construe continuing discrimination would undérmine the theory underlying the statute of limitations embodied in 42 U.S.C. § 2000e-5(e). See Olson v. Rembrandt Printing Co., supra; Richard v. McDonnell Douglas Corporation, supra. Ordinarily an.alleged discriminatory refusal to hire, standing alone, does not constitute a continuing wrong. Molybdenum Corp. of Am. v. Equal Employment Op. Com’n, 457 F.2d 935, 936 (10th Cir.1972) (per curiam); Kohn v. Roy all, Koegel & Weils, 59 F.R.D. 515, 518 (S.D.N.Y.1973). See Olson v. Rembrandt Printing Co., su pra. Where, however, the suit challenges an ongoing pattern and practice of discrimination rather than one isolated instance, the alleged violation may be deemed continuing. See Kohn" }, { "docid": "11015194", "title": "", "text": "that he wanted to be sure of the facts because these ladies had filed a discrimination suit against the Company. 161. Dempsey enforces lunch and break time-limits strictly to avoid the “snowball effect” of people becoming lax about returning from breaks. He is held strictly accountable for efficiency within his area. He has disciplined male bottlers for returning from a break even five minutes late. 162. On an unspecified date Cobb and Weiner were leaving early to get lunch because they did not bring their lunch on that day. Parker refused to allow them to leave early. When Cobb and Weiner protested, he told them that he would get a lunch runner for them, but they could not leave early. CONCLUSIONS OF LAW Jurisdiction and venue are proper in this Court. 28 U.S.C. §§ 1331, 1343(4), 1391(b); 42 U.S.C. § 2000e-5(f)(3). 42 U.S.C. § 2000e-2(a)(l) provides in pertinent part: It shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to ... compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex. The filing of a timely EEOC charge is a prerequisite to invoking federal court jurisdiction under Title VII. Satz v. ITT Financial Corp., 619 F.2d 738, 742 (8th Cir.1980); Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir.1975). In “deferral states”, states that have their own state or local employment opportunity commissions, a party must file with the EEOC or the state agency within 300 days after the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e). When, however, a complainant challenges an ongoing pattern or practice of discrimination rather than one isolated instance, the alleged violation may be deemed “continuing”. Chaffin v. Rheem Mfg. Co., 904 F.2d 1269, 1271 (8th Cir.1990); Satz, 619 F.2d at 743. In addition, “[a] Title VII complainant may raise claims in court ‘like or related’ to the substance of the complainant’s charge before the EEOC.” Satz, 619 F.2d at 741. Title VII complainants are generally laypersons, and the charges made by such lay complainants are to be construed broadly and in a" }, { "docid": "10536462", "title": "", "text": "the EEOC, her claim under Title VII, along with her state law claims (i.e., her HRL and IIED claims), which rely upon supplemental jurisdiction, must be dismissed as a matter of law. It is well established that Title VII requires a claimant who desires to bring a suit in federal court to file a charge of discrimination with the EEOC within 180 days “after the alleged unlawful employment practice occurred,” or within 300 days of the alleged discrimination if the claimant “has initially instituted proceedings with a State or local agency with authority to grant or seek relief ... or to institute criminal proceedings.” 42 U.S.C. § 2000e-5(e)(l). Generally, a failure to file a timely charge with the EEOC requires dismissal of the Title VII claim as time-barred. See, e.g., Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393,102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). However, this timely-filing requirement is not a jurisdictional prerequisite to suit in federal court, but rather, a requirement that functions like a statute of limitations. Id.; Karen Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir.1996). Thus, it is subject to waiver, estoppel, and equitable tolling. Zipes, 455 U.S. at 393, 102 S.Ct. 1127; Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir.1998). In the present case, Michetti filed a charge with the EEOC on April 26, 1995. Her charge alleged discriminatory conduct by defendants, the most recent of which occurred on June 4, 1994. Thus, her administrative charge was filed more than 300 days after the last alleged unlawful employment practice. Nonetheless, Michetti’s claim under Title VII is not time-barred for two independent reasons. First, as the statutory timely-filing requirement with the EEOC functions as a statute of limitations, see Quinn, 159 F.3d at 765, it follows that the defense is waived if not set forth in the responsive pleading. See Fed.R.Civ.P. 8(c); Zipes, 455 U.S. at 393, 102 S.Ct. 1127 (“We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement" }, { "docid": "4471981", "title": "", "text": "any individual under this section until the individual has given the Secretary not less than sixty days’ notice of an intent to file such action. Such notice shall be filed— (1) within one hundred and eighty days after the alleged unlawful practice occurred, or (2) in a case to which section 633(b) of this title applies [a deferral state, see n.8 supra], within three hundred days after the alleged unlawful practice occurred or within thirty days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier. In our view, this statutory language expressly permits a complainant in a deferral state to bring an action within 300 days after an alleged discriminatory discharge for reasons of age. The district court stated that the extended filing period of 300 days comes into play “only where the complainant filed [with the state agency] in fact, and that such period was not intended as a bonus for those who fortuitously reside in deferral states.” To support its conclusion that 29 U.S.C. § 626(d) required Hardtke to file notice of intent to sue within 180 days of his termination, the district court relied on Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir. 1975), a case brought under Title VII of the Civil Rights Act of 1964 dealing with time limitations for filing discrimination charges with the Equal Employment Opportunity Commission (EEOC). In Olson, the complainant filed an employment discrimination charge with the EEOC more than 180 days after her allegedly discriminatory termination. In addition, she did not institute state proceedings relating to the alleged unlawful discharge within the ninety day state limitation period. The court held that in a deferral state a charge of employment discrimination must be filed with the state agency within 180 days of an alleged unlawful act to trigger the extended 300-day filing period with the EEOC. Because the Olson complainant did not institute state proceedings within 180 days of her discharge, the court concluded that she was not entitled to the 300-day period for filing with the EEOC and dismissed her" }, { "docid": "17791438", "title": "", "text": "affected class is defined as Negro employees in the bargaining unit represented by Local No. 654 [of the Union] who were employed by the company prior to August 1, 1968. . . . ” (Emphasis supplied.) Hines initially was employed in August, 1972; therefore, he is by definition excluded from the class of persons affected by the settlement decree entered in Hicks. Plaintiff was not a party to that law suit, nor was he in privity with those plaintiffs. Accordingly, the stipulation of settlement does not operate as a bar to Hines’ law suit under the doctrine of res judicata, nor is Hines collaterally estopped from bringing this action. Rodriguez v. East Texas Motor Freight, 505 F.2d 40 (5th Cir., 1974). THE ONE HUNDRED AND EIGHTY DAY REQUIREMENT The filing of a formal charge before the Equal Employment Opportunity Commission is a jurisdictional prerequisite to the filing of a civil action under Title VII. Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir., 1970). That formal charge “shall be filed within one hundred eighty days after the alleged unlawful employment practice occurred . . . .” § 706(e) of Title VII of the Civil Rights Act of 1964-, 42 U.S.C. § 2000e-5(e). Since Hines’ EEOC charge was filed September 14, 1973, only those alleged acts of employment discrimination which occurred on or after March 18, 1973, would fall within one hundred and eighty days of the filing of that charge. Although Olin kraft’s counsel admits that we have jurisdiction over plaintiff’s claims arising on or after March 18, 1973, it is argued that we are not empowered under Title VII to adjudicate the merits of plaintiff’s claims which arose prior to that date. Olson v. Rembrandt Printing Co., 375 F.Supp. 413 (E.D. Mo., 1974). This contention squarely was addressed in Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir., 1975). That decision held, inter alia, that the 180-day requirement “is not ‘jurisdictional’ in the sense that compliance with it vel non determines the jurisdiction of the district court, without respect to any of the other circumstances in" }, { "docid": "4471982", "title": "", "text": "626(d) required Hardtke to file notice of intent to sue within 180 days of his termination, the district court relied on Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir. 1975), a case brought under Title VII of the Civil Rights Act of 1964 dealing with time limitations for filing discrimination charges with the Equal Employment Opportunity Commission (EEOC). In Olson, the complainant filed an employment discrimination charge with the EEOC more than 180 days after her allegedly discriminatory termination. In addition, she did not institute state proceedings relating to the alleged unlawful discharge within the ninety day state limitation period. The court held that in a deferral state a charge of employment discrimination must be filed with the state agency within 180 days of an alleged unlawful act to trigger the extended 300-day filing period with the EEOC. Because the Olson complainant did not institute state proceedings within 180 days of her discharge, the court concluded that she was not entitled to the 300-day period for filing with the EEOC and dismissed her action. Olson v. Rembrandt Printing Co., supra, 511 F.2d at 1233. Cf. Doski v. M. Goldseker Co., 539 F.2d 1326 (4th Cir. 1976) (in a deferral state, where a complainant files a state claim for Title VII relief more than 180 days after termination but within the state limitation period, the extended 300-day period for filing with the EEOC applies). Employing the Olson reasoning in a Title VII claim to the ADEA action before it, the district court in the instant case dismissed Hardtke’s action because, having failed to commence state proceedings, Hardtke had to provide notice of intent to sue to the Secretary within 180 days of his termination which he failed to do. In light of the Supreme Court’s decision in Oscar Mayer & Co. v. Evans, supra, we do not believe the Olson reasoning relating to Title VII claims applies to filing limitation periods under the ADEA. Unlike a person charging discrimination under Title VII, an ADEA claimant may bring a federal action without having timely commenced state proceedings. The Supreme Court" }, { "docid": "23278383", "title": "", "text": "in the district court rested exclusively on Title VII. On May 13, 1975, Doski filed an amended complaint which asserted a new claim-for relief under 42 U.S.C. § 1985(3), based on allegations of a conspiracy among certain male employees of the Company to deprive plaintiff and all women employees of their rights to equal employment opportunities and equal terms and conditions of employment. Defendants then filed motions to dismiss the amended complaint or, in the alternative, for summary judgment. The district court, as we have said, granted summary judgment as to Doski’s Title VII claim and dismissed the § 1985(3) cause of action. II. It is settled that before an aggrieved person may file suit in the district court under Title VII he must first have timely filed a charge of discrimination with EEOC. McFadden v. Baltimore S.S. Trade Ass’n, 352 F.Supp. 403 (D.Md.), aff’d, 483 F.2d 452 (4th Cir. 1973). Cf. Johnson v. Seaboard Air Line R.R., 405 F.2d 645 (4th Cir. 1968), cert. denied, 394 U.S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451 (1969); Stebbins v. Nationwide Mutual Insurance Co., 382 F.2d 267 (4th Cir. 1967), cert. denied, 390 U.S. 910, 88 S.Ct. 836, 19 L.Ed.2d 880 (1969). Goldseker’s argument, which the district court accepted, was that Doski’s charge was not timely under 42 U.S.C. § 2000e-5(e). The Statute 42 U.S.C. § 2000e-5(e) reads as follows: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the" }, { "docid": "22846618", "title": "", "text": "v. H. K. Porter Co., 3 Cir., 492 F.2d 13, 15. Title VII requires the complainant to file a charge of alleged unlawful employment practices with the Equal Employment Opportunities Commission (EEOC) within 180 days of the alleged discrimination. 42 U.S.C. § 2000e-5(e). Faced with the issue of whether this Title VII time period was jurisdictional or more like a statute of limitations, the Fifth Circuit held: The ratio decidendi, however, of the leading cases dealing with timing requirements in general under the Act compels the conclusion that the ninety day requirement [amended in 1972 to 180 days] is not “jurisdictional” in the sense that compliance with it vel non determines the jurisdiction of the district court, without respect to any of the other circumstances in a particular case. We accept the view that the requirement should be analogized to statutes of limitations. Equitable modifications, such as tolling and estoppel, that are applied to them should also be applied here. Reeb v. Economic Opportunity Atlanta, Inc., 5 Cir., 516 F.2d 924, 928. Reeb is not alone in allowing equitable considerations to toll the time limitations established by Title VII. See, e. g., Culpepper v. Reynolds Metals Co., 5 Cir., 421 F.2d 888, 891; Antonopulos v. Aerojet-General Corp., E.D.Cal., 295 F.Supp. 1390, 1395. The Reeb court’s holding that the notice period was not jurisdictional in the strict sense was based on the arguments that: (1) Since the complainants under the Act would most likely be laymen, they should not be held to “the technical rules of common law pleading” in filing their charges; (2) Title VII was remedial legislation and therefore entitled to a liberal construction; and (3) Many of the cases calling the time limitation “jurisdictional” were suffering from a “conceptual confusion” since having labeled the requirement jurisdictional they proceeded to toll the time limitation for equitable reasons.^ This court has also determined that under ^ certain conditions the 180-day period for\\ filing charges with the EEOC may be_Q tolled. Sanchez v. Trans World Airlines,^ Inc., 10 Cir., 499 F.2d 1107, 1108. See also Archuleta v. Duffy’s Inc., 10 Cir.," }, { "docid": "17791439", "title": "", "text": "days after the alleged unlawful employment practice occurred . . . .” § 706(e) of Title VII of the Civil Rights Act of 1964-, 42 U.S.C. § 2000e-5(e). Since Hines’ EEOC charge was filed September 14, 1973, only those alleged acts of employment discrimination which occurred on or after March 18, 1973, would fall within one hundred and eighty days of the filing of that charge. Although Olin kraft’s counsel admits that we have jurisdiction over plaintiff’s claims arising on or after March 18, 1973, it is argued that we are not empowered under Title VII to adjudicate the merits of plaintiff’s claims which arose prior to that date. Olson v. Rembrandt Printing Co., 375 F.Supp. 413 (E.D. Mo., 1974). This contention squarely was addressed in Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir., 1975). That decision held, inter alia, that the 180-day requirement “is not ‘jurisdictional’ in the sense that compliance with it vel non determines the jurisdiction of the district court, without respect to any of the other circumstances in a particular case.” Reeb, supra, at 928. Instead, the requirement is analogous to State statutes of limitations such as tolling and estoppel, together with the benefit of liberal statutory construction which is commanded by the remedial character of Title VII. Reeb, supra, at 928. Failure strictly to comply with the several timetables of Title VII has been excused where: (1) an aggrieved party filed a complaint with the EEOC, which held the complaint in abeyance while a state conciliatory agency attempted to effect settlement, Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); (2) complainant’s “right to sue letter” was received by his nine-year-old nephew who neglected to deliver it to the addressee, thus inadvertently causing his uncle’s failure timely to file his civil complaint in District Court, Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir., 1974), aff’d on other grounds, -U.S. -, 96 S.Ct. 1251, 47 L.Ed.2d 444, No. 74-728 (1976); and (3) complainant utilized grievance procedures established under a collective bargaining agreement prior to filing an" }, { "docid": "8824849", "title": "", "text": "was never formally advertised to be filled at that time, and we did not receive any applications. Shortly thereafter, Governor Pryor reimposed a hiring freeze; and this position has not been filled for that reason. In a counter-affidavit, the appellant averred that the job remained open due to discrimination rather than uncertain funding. The averments were not shown to be made on the basis of personal knowledge. See Federal Rule of Civil- Procedure 56(e). On April 24,1973, Smith filed a complaint in the District Court alleging unlawful employment discrimination on the basis of race in violation of 42 U.S.C. § 2000e, et seq. On July 18, 1973, the appellees moved to dismiss the complaint for failure to file a timely charge with the EEOC. Thereafter, on August 24, 1973, the appellant filed a discrimination charge with the EEOC. Finally, on November 20, 1975, the court granted the appellees’ motion for summary judgment, finding that the appellant had not, as required, filed a charge with the EEOC within 180 days of the alleged discriminatory acts. Accordingly, the complaint was dismissed. The timely filing of a charge of discrimination with the EEOC is a jurisdictional prerequisite to court action under Title VII. Greene v. Carter Carburetor Co., 532 F.2d 125, 126 (8th Cir.1976); Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1231 (8th Cir.1975) (en banc). Under 42 U.S.C. § 2000e-5(e), Smith was required to file charges with the EEOC within 180 days after the occurrence of the allegedly unlawful employment practice. The District Court found that the wrong complained of, a discriminatory refusal to hire, occurred on October 27, 1972, more than 180 days prior to the filing of administrative charges on August 24, 1973. The appellant concedes that the wrong first occurred on that date, but argues that it was a continuing one, the effects of which were felt within the 180-day period, and that the charges filed with the EEOC was thus timely- This Court has recognized that circumstances may warrant a finding that past discrimination is continuing so as to indefinitely extend the time for filing charges with" }, { "docid": "22846617", "title": "", "text": "this case is whether the filing of a notice of intent to sue within the 180-day period provided for in section 626(d)(1) is jurisdictional in the traditional sense that failure to comply is an absolute bar to bringing an action or whether the time limitation is more analogous to statutes of limitation and subject to equitable modifications. Admittedly, ample authority supports the trial court’s conclusion that compliance with section 626(d)(1) is a “jurisdictional prerequisite” to any private action under the ADEA. However, after examining the cases and the legislative history, we remain unconvinced that Congress intended the failure to file notice within the 180-day notice period to be an absolute bar to bringing an ADEA private action. Because of the similarities between the ADEA and Title VII of the Civil Rights Act of 1964, courts sometimes refer to interpretations of provisions in Title VII for assistance in defining analogous sections of the ADEA. Moses v. Falstaff Brewing Corp., 8 Cir., 525 F.2d 92, 94; Curry v. Continental Airlines, 9 Cir., 513 F.2d 691, 693; Goger v. H. K. Porter Co., 3 Cir., 492 F.2d 13, 15. Title VII requires the complainant to file a charge of alleged unlawful employment practices with the Equal Employment Opportunities Commission (EEOC) within 180 days of the alleged discrimination. 42 U.S.C. § 2000e-5(e). Faced with the issue of whether this Title VII time period was jurisdictional or more like a statute of limitations, the Fifth Circuit held: The ratio decidendi, however, of the leading cases dealing with timing requirements in general under the Act compels the conclusion that the ninety day requirement [amended in 1972 to 180 days] is not “jurisdictional” in the sense that compliance with it vel non determines the jurisdiction of the district court, without respect to any of the other circumstances in a particular case. We accept the view that the requirement should be analogized to statutes of limitations. Equitable modifications, such as tolling and estoppel, that are applied to them should also be applied here. Reeb v. Economic Opportunity Atlanta, Inc., 5 Cir., 516 F.2d 924, 928. Reeb is not" }, { "docid": "22018076", "title": "", "text": "judgment, the court may enter judgment only when the pleadings, affidavits and admissions show that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law. With this consideration in mind, the court will proceed to rule upon the issues presented in defendant’s motion. JURISDICTION The first issue before this court is whether plaintiff invoked the administrative procedure of the 1964 Civil Rights Act in a timely manner or whether she is barred from relief because she did not file a charge with EEOC within 180 days after- the defendant refused to reimburse her for medical expenses incurred in connection with her miscarriage in April 1973. The relevant statutory provision states that: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000-5(e). It is settled law that the filing of a charge within the statutory limitations period set forth above is a jurisdictional prerequisite to the commencement of a civil action under Title VII in federal court. Williams v. Norfolk and Western Ry. Co., 530 F.2d 539 (4th Cir. 1975); East v. Romine, Inc., 518 F.2d 332 (5th Cir. 1975); Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir. 1975). But even if the 180-day filing requirement is a prerequisite to court action, it is no bar where a continuing practice of discrimination is being challenged rather than a single isolated, discriminatory act. Williams v. Norfolk and Western Ry. Co., supra; Cox v. U. S. Gypsum, 409 F.2d 289 (7th Cir. 1969); Mixson v. Southern Bell Telephone Co., 334 F.Supp. 525 (N.D.Ga.1971). The defendant contends that the only potentially unlawful employment practice being challenged is the refusal of the college on May 16, 1973 to reimburse plaintiff for her medical bills. Because the plaintiff did not file an EEOC charge within 180 days thereafter, defendant argues, she is thereby precluded from bringing an action in this court. This line of reasoning, however, misconstrues the nature of plaintiff’s argument. The plaintiff does" }, { "docid": "22888194", "title": "", "text": "that date even though the termination occurred on August 31, 1973. The district court found that the statutory period began to run on August 31, 1973, since the incident of discrimination of which Chappell complained occurred on that date. This finding is not clearly erroneous. Chappell also urges that this court should defer to the EEOC’s determination that she had satisfied all of Title VII’s jurisdictional prerequisites. It is clear, however, that a court must make an independent determination of whether jurisdiction exists rather than deferring to the EEOC. Cutiiff, supra, 558 F.2d at 807; Reeb, supra, 516 F.2d at 926. III. Having found that Chappell failed to file a complaint with the EEOC within 180 days of the alleged incident of discrimination and that equitable delay or interruption of the 180-day period is unavailable under the circumstances of this case, we hold that Chappell’s suit was time barred under 42 U.S.C. § 2000e-5(e) and that the district court properly dismissed her suit for want of jurisdiction. AFFIRMED. . 42 U.S.C. § 2000e-5(e) provides: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency. . But see Bethel v." }, { "docid": "3238647", "title": "", "text": "Dr. Russell’s EEOC charge is barred because 42 U.S.C. § 2000e-5(e) requires charges under Title VII to be filed 180 days after the alleged unlawful employment practice occurred. Thus, the defendants argue that the plaintiff can have no cause of action for unlawful employment discrimination before April 25, 1980 which is 180 days before October 22, 1980. Section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e), provides in relevant part: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in the case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a state or local agency ... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings ... (emphasis added). Clearly this section requires a timely charge of unlawful discrimination to be filed with the EEOC within 180 days “after the alleged unlawful practice occurred.” The section, however, creates an exception when an employee is required to first file with a state or local antidiscrimination agency; then the employee may timely file his charge with the EEOC within 300 days of the alleged violation or 30 days after the state or local agency has terminated its proceedings. See C. Sullivan, M. Zimmer, and R. Richards, Federal Statutory Law of Employment Discrimination 271-76 (1980). Tennessee is known as a deferral state because it has established a qualified state agency to handle discrimination claims, namely the Tennessee Human Development Commission, Tenn. Code Ann. §§ 4-21-101, et seq. This agency allows employees to file their charges of alleged discrimination with the Commission and later file with the EEOC. An employee who files with the Tennessee Human Development" } ]

[ { "docid": "22748279", "title": "", "text": "constitutionality of Ohio’s death penalty statute on a number of grounds. We find it necessary to consider only her contention that her death sentence is invalid because the statute under which it was imposed did not permit the sentencing judge to consider, as mitigating factors, her character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime. To address her contention from the proper perspective, it is helpful to review the developments in our recent cases where we have applied the Eighth and Fourteenth Amendments to death penalty statutes. We do not write on a “clean slate.” A Prior to Furman v. Georgia, 408 U. S. 238 (1972), every State that authorized capital punishment had abandoned mandatory death penalties, and instead permitted the jury unguided and unrestrained discretion regarding the imposition of the death penalty in a particular capital case. Mandatory death penalties had proved unsatisfactory, as the plurality noted in Woodson v. North Carolina, 428 U. S. 280, 293 (1976), in part because juries, “with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict.” This Court had never intimated pijior to Furman that discretion in sentencing offended the Constitution. See Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937); Williams v. New York, 337 U. S. 241, 247 (1949); Williams v. Oklahoma, 358 U. S. 576, 585 (1959). As recently as McGautha v. California, 402 U. S. 183 (1971), the Court had specifically rejected the contention that discretion in imposing the death penalty violated the fundamental standards of fairness embodied in Fourteenth Amendment due process, id., at 207-208, and had asserted that States were entitled to assume that “jurors confronted with the truly awesome responsibility of decreeing death for a fellow human [would] act with due regard for the consequences of their decision.” Id., at 208. The constitutional status of discretionary sentencing in capital cases changed abruptly, however, as a result of the separate opinions supporting the judgment in Furman. The question in Furman was" } ]

[ { "docid": "23131480", "title": "", "text": "444. The en banc majority refers to it approvingly. See Majority Opinion, supra at 810 & n. 2 (emphasizing Gardner’s holding that “death sentence may not be imposed ... on nonrecord, unchallengeable information” and noting that determination whether use of nonrecord information in this case was unconstitutional “[t]o some extent ... turns on whether the Florida Supreme Court is ‘imposing’ sentence or doing something qualitatively different. See Brown v. Wainwright, 392 So.2d at 1331”). . See Gardner v. Florida, 430 U.S. at 357, 97 S.Ct. at 1204 (citing various concurring and dissenting opinions in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)). See also Eddings v. Oklahoma, 455 U.S. 104, 118, 102 S.Ct. 869, 878, 71 L.Ed.2d 1, 13 (1982) (O’Connor, J., concurring); Lockett v. Ohio, 438 U.S. at 604, 98 S.Ct. at 2964 (Burger, C.J., joined by Stewart, Powell, and Stevens, JJ.) (“qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed”). . In 1976 the Court considered constitutional challenges to five states’ post-Furman capital sentencing statutes. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). . In Gardner, the trial judge had ordered a presentence investigation after the jury had returned an advisory verdict recommending a life sentence. The judge had then disclosed part, but not all, of the presentence investigation report to the defendant’s counsel and, apparently on the basis of the report, had rejected the jury’s advisory verdict and sentenced the defendant to death. Gardner v. Florida, 430 U.S. at 352-53, 97 S.Ct. at 1201-02. . The plurality opinion in Gardner expressly held that the sentencing procedure at issue" }, { "docid": "23131462", "title": "", "text": "statute].” Fla. Stat.Ann. § 921.141(2), (3) (West Supp. 1982). Only after finding that there are “sufficient” aggravating factors are the jury and judge instructed to address mitigating factors. Id. The statutory language thus suggests that death is appropriate only where the sentencers make an individualized judgment that the aggravating factors they have identified are sufficiently grave to justify that punishment. Another reason I would not attribute this interpretation of the statute to the Florida Court is that the statute as so interpreted would pose significant constitutional questions. The Supreme Court has held that capital sentencing schemes may not, consistently with eighth amendment principles, eliminate all sentencer discretion by making the death sentence mandatory for certain statutorily defined categories of offenses. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Moreover, the Court has recently reaffirmed the importance of individualized sentencing by holding that the scope of mitigating evidence a defendant may proffer on his own behalf may not be unduly curtailed by statute. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). See also Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Making the death sentence mandatory in all cases where some aggravating and no mitigating factors are present would not curtail sentencer discretion to the same degree as the statutes condemned in Wood-son and Roberts, nor in the same manner as the statute invalidated in Lockett. Nonetheless such a law would prevent sentencers from declining to impose the death sentence in many cases where the particular facts, though technically within the statutory aggravating criteria, do not in the sentencer’s judgment present sufficient indicia of malice, dangerousness, or other evil to justify the ultimate punishment. Whether such a restriction on sentencer discretion is constitutional may soon be decided by the Supreme Court. See Zant v. Stephens, supra. I will not attempt to predict the holding of the Court on this issue. Suffice it to say that the constitutional difficulties presented by this" }, { "docid": "5397977", "title": "", "text": "United States Constitution. B. The Sentencing Authority Under the Alabama Statute The petitioner’s second area of challenge to the constitutionality of the Alabama death penalty statute is concerned with the requirement that a capital jury that finds a defendant guilty must impose the death sentence or impose no penalty at all. The petitioner contends that this provision is conducive to arbitrary or capricious jury decisions in death penalty cases, since it permits juries to refuse to impose the death sentence in those cases in which they do not feel that the defendant deserves to die. This concern led to the rejection of mandatory death penalty statutes in North Carolina and Louisiana by the United States Supreme Court, since it was felt by the plurality of the Court that the unbridled jury discretion condemned by Furman could not be remedied by a mandatory statute removing all sentencing discretion from the jury, because such a statute encourages jurors to consider the harshness of the penalty while deliberating on the guilt or innocence of the capital defendant. Woodson, 428 U.S. at 303, 96 S.Ct. 2978, 49 L.Ed.2d at 960; Roberts, 428 U.S. at 335, 96 S.Ct. 3001, 49 L.Ed.2d at 982. The question for this Court is whether the Alabama statutory scheme permits such unchanneled jury discretion in capital cases as to merit the death penalty to be imposed “freakishly or wantonly.” See Furman v. Georgia, 408 U.S. 238, 309-10, 92 S.Ct. 2726, 33 L.Ed.2d 346, 390 (1976) (Stewart, J., concurring). At the outset, the distinctions between the Alabama statute and those struck <jown in Woodson and Roberts should be noted. The North Carolina statute struck down in Woodson made the death penalty mandatory for all first degree murders. Thus the only discretion allowed the jury was the decision whether the defendant was guilty of first degree murder or some other homicide offense. The Louisiana statute struck down in Roberts required jury imposition of the death penalty in all cases of conviction for first degree murder, aggravated rape, aggravated kidnapping, or treason. In Woodson, the Supreme Court struck down the statute for three," }, { "docid": "2420011", "title": "", "text": "are death-eligible may be put to death. Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987); Roberts (Harry) v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977); Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Such an action runs counter to the second fundamental principle: namely, that the sentencing body must be permitted to consider and give effect to all mitigating circumstances surrounding the individual offender. See Penny v. Lynaugh, — U.S. -, 109 S.Ct. 2934, 2951-52, 106 L.Ed.2d 256 (1989); Hitchcock v. Dugger, 481 U.S. at 397-399, 107 S.Ct. at 1824; Skipper v. South Carolina, 476 U.S. at 4-8, 106 S.Ct. at 1670-73; Eddings v. Oklahoma, 455 U.S. at 110, 102 S.Ct. at 874. Thus notwithstanding the fact that an individual may fall within the pool of death-eligible defendants, a state must provide a mechanism by which the sentencer can make an individualized assessment of the appropriateness of the death penalty. To do otherwise in a capital case would be inconsistent with “the fundamental respect for humanity underlying the Eighth Amendment ... [which] requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Sumner v. Shuman, 483 U.S. at 75, 107 S.Ct. at 2722 (quoting Woodson v. North Carolina, 428 U.S. at 304, 96 S.Ct. at 2991). A comparison between Sumner v. Shuman, supra, and Blystone v. Pennsylvania, — U.S. -, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990), crystallizes this last point. In Shuman, the Supreme Court rejected a Nevada statute that would have required mandatory imposition of the death penalty for an inmate who commits murder while serving a sentence of life imprisonment. The fatal flaw in such a statute, the Court reasoned, was that “[a] process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular" }, { "docid": "21069755", "title": "", "text": "guide the jury in determining which offenders should be sentenced to death; and it did not allow the sentencer to consider the character and record of an offender and the circumstances of the offense as part of the process of inflicting the death penalty. 428 U.S. at 301-04, 96 S.Ct. 2978. Banks next notes the decision in Roberts v. Louisiana, 428 U.S. 325, 333-34, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), decided the same day as Gregg, Proffitt, Jurek, and Woodson, which also struck down the death penalty statute because, like that in Woodson, it failed to provide for any meaningful opportunity for consideration of the character and record of the defendant or the circumstances of the crime. Banks then emphasizes the decision in Lockett v. Ohio, 438 U.S. 586, 608, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), where the Supreme Court found unconstitutional a state statute that allowed consideration' of only a limited number of mitigating factors. Continuing along this line, Banks lists Eddings v. Oklahoma, 455 U.S. 104, 113-15, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), where the Supreme Court ruled that a sentencing judge improperly decided, as a matter of law, that he could not consider evidence of a defendant’s troubled family history and emotional disturbance as mitigating evidence. He next references Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), holding that the trial judge improperly ruled that the jury could not consider a defendant’s good conduct in prison as mitigating evidence, California v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987), upholding the sentence of death by interpreting the jury instruction to be consistent with the Eddings line of cases, and the opinion in Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), decided shortly thereafter, where the Supreme Court held that a new sentencing hearing was required because the advisory jury and judge should have considered evidence of nonstatutory mitigating circumstances. Banks argues that this line of cases, embodying the rule that a jury in a capital case must" }, { "docid": "14145619", "title": "", "text": "[the defendant’s] psychosis or mental deficiency.” Id. at 593, 98 S.Ct. 2954 (quoting Ohio Rev.Code §§ 2929.03-.04(B) (1975)). The Ohio statute precluded any consideration of any other facts or circumstances in mitigation. See id. Evaluating the constitutionality of this capital sentencing regime, a plurality of the Court noted that “ ‘in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.’ ” Id. at 604, 98 S.Ct. 2954 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion)). Chief Justice Burger, writing for the plurality, concluded that the Eighth and Fourteenth Amendments require that the sentencer, ... not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Id. at 604, 98 S.Ct. 2954. In Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), a majority of the Supreme Court adopted this rule, which is now well-established. See Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). In adopting this rule, the Eddings Court explained that “the fundamental respect for humanity underlying the Eighth Amendment” requires such consideration “as a constitutionally indispensable part of the process of inflicting the penalty of death.” 455 U.S. at 112, 102 S.Ct. 869. In addition, the Court has explained that “[e]qually clear is the corollary rule that the sentencer may not refuse to consider or be precluded from considering any relevant mitigating evidence.” Skipper, 476 U.S. at 4, 106 S.Ct. 1669 (internal quotation marks omitted). As the Supreme Court recently summarized, “[i]n aggregate, our precedents confer upon defendants the right to present sentencers with [such mitigating] information relevant to the sentencing decision and oblige sentencers to consider that information in determining the appropriate sentence." }, { "docid": "7572955", "title": "", "text": "sentencing hearing, Raulerson called a host of witnesses who testified to his troubled childhood, excellent work record, devotion to family, religious beliefs and prospects for rehabilitation. In pronouncing sentence, the court stated that it found five aggravating circumstances but no mitigating ones, statutory or otherwise. It is this statement that gave rise to Raulerson’s first contention that the trial court failed to consider his evidence of mitigating circumstances. Contrary to Raulerson’s assertion, it is evident from the record before us that the trial judge did consider the evidence but concluded that it did not outweigh the factors militating in favor of the death penalty. The real thrust of his argument seems to be that the court committed error of constitutional magnitude by not accepting the evidence as mitigating. It is clear from recent decisions of the Supreme Court that a prerequisite to constitutional imposition of the death penalty is consideration by the sentencer of the individual circumstances of the crime, that is, “the character and record of the individual offender and the circumstances of the particular offense____” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976). See also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). This obviously means that the totality of circumstances must be reviewed including both statutory and nonstatutory mitigating factors. See Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). In Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) the Supreme Court struck down a North Carolina statute that required imposition of the death penalty for first degree murder. The Court reasoned that such mandatory sentencing statutes obviate the necessity for the sentencer to exercise discretion in contravention of the principle that “justice ... requires consideration of ... the circumstances of the offense together with the character and propensities of the offender.” Id. at 304, 96 S.Ct." }, { "docid": "22248702", "title": "", "text": "argues that the statute creates an impermissible balancing test that prevents the jury ftom making an individualized determination .of the sentence. The statute provides.that the sentence shall be death if the jury finds “beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency.” Wash.Rev. Code 10.95.060(4). Section 10.95.070 allows the sentencing authority to consider “any relevant factors” in deciding the question and provides a non-exclusive list of mitigating factors that could merit leniency. Individualized determination in capital sentencing is constitutionally required. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). As the Court explained in Woodson, [a] process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. Woodson, 428 U.S. at 304, 96 S.Ct. at 2991. Under the individualized sentencing schema, the Court has struck down statutes that provide for a mandatory sentence of death upon conviction of a particular crime, even if narrowly defined, Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987), as well as statutes that limit the kinds of mitigating circumstances the sentencing authority may consider, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Campbell’s argument that Wash. Rev.Code 10.95 creates a mandatory death penalty formula has no merit. The Supreme Court has repeatedly held “[t]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence.” Blystone v. Pennsylvania, 494 U.S. 299, 307, 110 S.Ct. 1078, 1083, 108 L.Ed.2d 255 (1990) (footnote omitted) (rejecting challenge to death penalty statute that did not preclude the sentencer from considering any type of mitigating evidence); Boyde v. California, 494 U.S. 370, 374-77, 110 S.Ct. 1190, 1194-96, 108 L.Ed.2d 316 (1990) (rejecting challenge to death penalty statute providing that “[i]f you conclude" }, { "docid": "13460829", "title": "", "text": "omitted). At the same time, this retributive justification requires that capital punishment be imposed only on those who are deserving of society’s ultimate sanction. See Zant v. Stephens,U.S. -, -, 103 S.Ct. 2733, 2743, 77 L.Ed.2d 235 (1983) (in order to avoid constitutional invalidation, aggravating factors must “reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder”). Hence, the retributive nature of the capital sentence is reflected in the Supreme Court’s frequently repeated concern that the death penalty not be applied in an arbitrary and capricious manner, see, e.g., Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Godfrey v. Georgia, 446 U.S. 420, 427, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980), and that the sentencer’s focus be on the individual offender and his crime. Lockett v. Ohio, 438 U.S. 586, 602-05, 98 S.Ct. 2954, 2963-65, 57 L.Ed.2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). The requirement that the sen-tencer consider any relevant mitigating circumstance, see Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 873-75, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, supra; Westbrook v. Zant, 704 F.2d 1487, 1501 (11th Cir.1983), also flows from notions of retributive justice. The retributive justification for capital punishment requires that the sentencing decision turn in large part on considerations of the justice of imposing death on a given offender for committing a given crime. See Zant v. Stephens, - U.S. at-, 103 S.Ct. at 2743. In Georgia’s sentencing scheme the jury serves, in part, to gauge “society’s moral outrage at particularly offensive conduct.” Gregg, supra. Once the jury has found the presence of a statutory aggravating factor, it has discretion whether to impose the death penalty or to exercise mercy. This decision should turn on whether this defendant is deserving of mercy or whether his crime is “so grievous an affront to humanity that the only adequate response may be the penalty of death.” Id. The jury’s choice will thus depend largely on its evaluation of" }, { "docid": "21069754", "title": "", "text": "death penalty would be imposed in an arbitrary and capricious manner), and, surprisingly, the three cases after Furman that sustained the imposition of death sentences, Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); and Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Banks’ argument is that although the death sentencing schemes were held constitutional in all three cases, the respective schemes allowed the sentencer to consider the defendant’s evidence of mitigating circumstances. Banks states that in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), where sentences of death were overturned because the jurors were prevented from considering all mitigating circumstances, the Supreme Court “recognized the constitutional requirement of an ‘individualized sentencing’ in capital cases.” Appellant’s Supp. Br. at 4. The Woodson plurality gave three reasons for its holding: the state statute at issue imposed a mandatory death sentence for certain offenses; it provided no standards to guide the jury in determining which offenders should be sentenced to death; and it did not allow the sentencer to consider the character and record of an offender and the circumstances of the offense as part of the process of inflicting the death penalty. 428 U.S. at 301-04, 96 S.Ct. 2978. Banks next notes the decision in Roberts v. Louisiana, 428 U.S. 325, 333-34, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), decided the same day as Gregg, Proffitt, Jurek, and Woodson, which also struck down the death penalty statute because, like that in Woodson, it failed to provide for any meaningful opportunity for consideration of the character and record of the defendant or the circumstances of the crime. Banks then emphasizes the decision in Lockett v. Ohio, 438 U.S. 586, 608, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), where the Supreme Court found unconstitutional a state statute that allowed consideration' of only a limited number of mitigating factors. Continuing along this line, Banks lists Eddings v. Oklahoma, 455 U.S. 104, 113-15, 102 S.Ct. 869, 71" }, { "docid": "21069705", "title": "", "text": "well established constitutional rule that the Eighth Amendment prohibits all barriers to the sentencer’s consideration of any and all mitigation evidence in the penalty phase of a capital trial. By the time Banks’s conviction became final in 1987, the legal landscape was primarily defined by Supreme Court case law spanning nearly a dozen years. We begin our examination of this precedent with the Supreme Court’s decision in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), which struck down North Carolina’s mandatory death penalty statute. Of the many constitutional flaws the plurality found in North Carolina’s capital sentencing structure, one particularly notable defect was its “failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.” Woodson, 428 U.S. at 303, 96 S.Ct. 2978; see also Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1977) (striking down Louisiana’s mandatory death penalty statute). The plurality reiterated that death as a penalty is distinguishable in kind from all other penalties, and held that “the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson, 428 U.S. at 304, 96 S.Ct. 2978 (citations omitted); see also Roberts, 428 U.S. at 333-34, 96 S.Ct. 3001 (plurality opinion) (noting that the Constitution requires a “focus on the circumstances of the particular offense and the character and propensities of the offender”); Jurek v. Texas, 428 U.S. 262, 271, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (plurality opinion) (stating that the Eighth and Fourteenth Amendments require that the sentencer be allowed to consider mitigating circumstances). The Court articulated the full import of Woodson’s constitutional directive more clearly in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), in which it struck down a statute that restricted the range of mitigating factors that could be considered" }, { "docid": "20641594", "title": "", "text": "constitutional trial error, and therefore cannot be subjected to harmless error analysis. The reasons for these conclusions are set forth in the final section of this opinion. 1. The Eighth Amendment Requirement Of Individualized Sentencing Obliges States, Including Texas, To Enable Capital Sentencers To Select The Appropriate Penalty After Full Consideration Of The Defendant’s Mitigation Evidence. The Supreme Court’s recognition of the constitutional requirements regarding individualized sentencing began in 1976, when the Court issued a series of major decisions concerning the constitutionality of the death penalty that altered the fundamentals of the Court’s death penalty jurisprudence. These cases dealt with death penalty statutes enacted by various states in response to the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which had previously invalidated the death penalty. None of the five cases produced a majority opinion, but several major, enduring principles nevertheless emerged from these cases. First, states cannot make the imposition of the death penalty mandatory from any class of crimes. See Woodson, 428 U.S. at 302-05, 96 S.Ct. 2978; Roberts, 428 U.S. at 335-36, 96 S.Ct. 3001; see also Sumner v. Shuman, 483 U.S. 66, 74, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987). Second, state death penalty statutes must limit and guide the sentencer’s discretion to impose the death penalty in order to prevent its arbitrary and capricious application. See, e.g., Johnson v. Texas, 509 U.S. 350, 360, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (“In the five cases, the controlling joint opinion of three Justices reaffirmed the principle of Furman that ‘discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.’ ”) (quoting Gregg, 428 U.S. at 189, 96 S.Ct. 2909). Third, the capital sentencer must be allowed to consider and give effect to the unique circumstances of the individual defendant and his particular crime when determining the appropriate sentence. See, e.g., Shuman, 483 U.S. at 74, 107 S.Ct. 2716 (“In the two cases striking down as unconstitutional mandatory capital-sentencing statutes, the opinions stressed that one of the fatal flaws" }, { "docid": "23545665", "title": "", "text": "law. Spivey con tends that such an instruction is violative of the eighth and fourteenth amendments. To address this claim, we first determine what instructions on mitigation, if any, the eighth and fourteenth amendments require in a sentencing charge, and then test the charge in Spivey’s case by that standard. The United States Supreme Court struck down the death penalty in Georgia and in thirty-nine other states in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), holding that the death penalty could not be imposed under a sentencing procedure that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. See Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (plurality opinion). After Furman, Georgia enacted a new death penalty statute. The Supreme Court reviewed that statute and the statutes of four other states in 1976. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (plurality opinion); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (plurality opinion). In those cases, the Court established that a death sentence could be imposed if a state fulfilled its “constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980) (plurality opinion). See Gregg v. Georgia, 428 U.S. at 188-195, 96 S.Ct. at 2932-2936. Accordingly, the constitution requires that a state death sentencing procedure “allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition on him of a sentence of death.” Woodson v. North Carolina, 428 U.S. at 303, 96 S.Ct. at 2991. Elaborating on Woodson, a plurality" }, { "docid": "17120974", "title": "", "text": "238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Court effectively struck down all capital punishment statutes then in place. The crucial votes in Furman were those of Justices Stewart and White, who, as Justice Scalia observed in Walton v. Arizona, — U.S. -, 110 S.Ct. 3047, 3061, 111 L.Ed.2d 511 (1990) (concurring opinion), “focused on the infrequency and seeming randomness” with which the death sentence was imposed under the then existing discretionary system. Following Furman some thirty-five states adopted new capital sentencing statutes that reduced or narrowed the sentencer’s discretion in determining whether or not to impose the death penalty. The Supreme Court ruled on five of these statutes on July 2, 1976. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Gregg sustained the Georgia statute, which directed the sentencer to consider listed and unlisted aggravating and mitigating circumstances, but allowed a death sentence only if at least one listed aggravating circumstance were found. The Court observed that “Furman mandates” that the capital sentencer’s “discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action,” id. 96 S.Ct. at 2932, and warned against sentencing standards “so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” Id. at 2935 n. 46. Gregg goes on to note, however, that “the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice.” Id. at 2939. Proffitt applied the Gregg rationale to uphold the somewhat similar Florida scheme. Woodson, however, struck down the North Carolina statute under which the death penalty was" }, { "docid": "12065991", "title": "", "text": "L.Ed.2d 929 (1976), Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (hereinafter the “1976 Cases”), are standards for statutes that guide the sentencing authority including weighing aggravating and mitigating circumstances and weighing them against each other, and providing for de novo appellate review. Gregg, 428 U.S. at 193-195, 96 S.Ct. at 2934-35. These cases determined the constitutionality of the death penalty after it was struck down in 1972 in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726. The guidelines should focus on the individual circumstances of each case and on the individual defendant. Proffitt, 428 U.S. at 252, 96 S.Ct. at 2966; Gregg, 428 U.S. at 199, 96 S.Ct. at 2937. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. But authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976). Since Furman, the Supreme court has insisted that the channeling and limiting of the sentencer’s discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action. Maynard v. Cartwright, — U.S. -, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372 (1988). This arbitrary and capricious argument is usually applied when analyzing statutory sentencing schemes, and the 1976 Cases analyzed the statutory schemes of five states to see if their legislative changes after Furman were constitutional. The cases the majority cites for the proposition" }, { "docid": "20641514", "title": "", "text": "takes into account the unique facts of each case and each defendant, and the requirement of preventing the arbitrary imposition of the death penalty that can result from giving the sentencer unfettered discretion. These cases announced the principles that would underlie the Supreme Court’s later pronouncement that a capital sentencing scheme must allow the sentencer to give full effect to all of the defendant’s mitigating evidence. In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court upheld the facial constitutionality of the Texas special-issues sentencing scheme on the same day that it ruled on the validity of the post-Furman death penalty statutes of four other states. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (upholding the facial constitutionality of Georgia’s capital-sentencing scheme, which narrowed the class of death-eligible offenders and guided the sentencer’s consideration of mitigating and aggravating evidence); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (upholding the facial constitutionality of Florida’s capital-sentencing scheme, which narrowed the class of death-eligible offenders and guided the sentencer’s consideration of mitigating and aggravating evidence); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (striking down North Carolina’s mandatory capital-sentencing scheme because it gave sentencers no discretion to impose the death penalty for certain crimes); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (striking down Louisiana’s capital-sentencing scheme requiring the imposition of the death penalty for certain crimes). In Ju-rek, a plurality of the Court explained that, while the Texas sentencing scheme was constitutional on its face, “[a] jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.” Jurek, 428 U.S. at 271, 96 S.Ct. 2950 (plurality opinion) (citing Woodson, 428 U.S. at 303-05, 96 S.Ct. 2978); see also Roberts, 428 U.S. at 334-36, 96 S.Ct. 3001 (plurality opinion). Therefore, “the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of" }, { "docid": "12065990", "title": "", "text": "Ricketts v. Adamson, 107 S.Ct. at 2686. As the law favors plea agreements, Bordenkircher, 434 U.S. at 363-64, 98 S.Ct. at 668, Adamson should be held to his bargain and suffer the consequences of his voluntary breach. II. ARBITRARY AND CAPRICIOUS A sentence of death is “arbitrary and capricious” under the Eighth Amendment if it is not suitably directed and limited. Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976). The concerns expressed in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) that the penalty of death not be imposed in an arbitrary or capricious manner are met by a carefully drafted statute which ensures that the sentencing authority is given adequate information and guidance. Gregg, 428 U.S. at 195, 96 S.Ct. at 2935. The safeguards espoused in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (hereinafter the “1976 Cases”), are standards for statutes that guide the sentencing authority including weighing aggravating and mitigating circumstances and weighing them against each other, and providing for de novo appellate review. Gregg, 428 U.S. at 193-195, 96 S.Ct. at 2934-35. These cases determined the constitutionality of the death penalty after it was struck down in 1972 in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726. The guidelines should focus on the individual circumstances of each case and on the individual defendant. Proffitt, 428 U.S. at 252, 96 S.Ct. at 2966; Gregg, 428 U.S. at 199, 96 S.Ct. at 2937. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. But authorizing the defense to bring before the jury at" }, { "docid": "12066065", "title": "", "text": "resembles an unconstitutional mandatory sentencing scheme. After the Supreme Court’s pronouncement in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), where the Supreme Court declared the death penalty “in these cases constitute cruel and unusual punishment,” state legislatures changed their sentencing laws. Id. at 240, 92 S.Ct. at 2727. In 1976, the Supreme Court reviewed five death penalty cases under these new sentencing schemes. In the three cases upholding the “guided-discretion” statutes, the opinions emphasized that those schemes permitted the sentencing authority to consider relevant mitigating circumstances pertaining to the offense and a range of factors about the individual defendant. Gregg v. Georgia, 428 U.S. 153, 197, 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 251-52, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. at 270-71, 96 S.Ct. at 2955-56. The Court declared two mandatory sentencing schemes unconstitutional. The opinions stressed they were fatally flawed by their failure to permit presentation of mitigating circumstances for the consideration of the sentencing authority. Woodson v. North Carolina, 428 U.S. 280, 303-05, 98 S.Ct. at 3006; Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 333-34, 96 S.Ct. 3001, 3006, 49 L.Ed.2d 974 (1976). Thus, the constitutional mandate is that in capital cases “it is constitutionally required that the sentencing authority have information sufficient to enable it to consider the char acter and individual circumstances of a defendant prior to imposition of a death sentence.” Sumner, 107 S.Ct. at 2720; Gregg, 428 U.S. at 189 n. 38, 96 S.Ct. at 2933 n. 38. So long as the sentencing scheme makes these provisions it is constitutional. The word “shall” as it appears in the Texas and Montana sentencing schemes has been declared constitutional. In Texas, the capital sentencing procedure requires the jury to answer three questions at the sentencing stage: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the" }, { "docid": "2139186", "title": "", "text": "Justices Blackmun and Rehnquist) in Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), and Justice Rehnquist’s dissent in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), each decided the same day as Jurek. Justice White’s Jurek concurrence observed that the Texas “statute does not extend to juries discretionary power to dispense mercy.” 96 S.Ct. at 2959. His dissent in Roberts points out that under the Texas statute upheld in Jurek, “capital punishment is required if the defendant is found guilty of the crime charged and the jury answers two additional questions in the affirmative. Once that occurs, no discretion is left to the jury; death is mandatory.” 96 S.Ct. at 3018. And, in Woodson, Justice Rehnquist’s dissent points out that under the Texas system upheld in Jurek, “[t]he jury is required to answer three statutory questions. If the questions are unanimously answered in the affirmative, the death penalty must be imposed.” 96 S.Ct. at 2996 (emphasis in original). It is true, of course, that Justice Stewart’s plurality opinion in Jurek relied heavily on the breadth of circumstances which the Texas Court of Criminal Appeals in Jurek itself (as well as in another case) had indicated could properly be considered in answering the sentencing special interrogatories, particularly the second. 96 S.Ct. 2950 at 2956-57. However, it is to be noted in this connection that the Texas courts, both generally and in Penry’s case, have kept the promise of Jurek, and have not to any extent narrowed the circumstances appropriate for consideration under the sentencing special issues as indicated in Jurek. Moreover, since Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)—the decision most in tension with Jurek—the Supreme Court has cited Jurek favorably in numerous cases. See Sumner v. Shuman, — U.S. -, 107 S.Ct. 2716, 2721, 97 L.Ed.2d 56 (1987); Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 1770, 90 L.Ed.2d 137 (1986); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986); Pulley v. Harris, 465 U.S." }, { "docid": "7572956", "title": "", "text": "particular offense____” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976). See also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). This obviously means that the totality of circumstances must be reviewed including both statutory and nonstatutory mitigating factors. See Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). In Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) the Supreme Court struck down a North Carolina statute that required imposition of the death penalty for first degree murder. The Court reasoned that such mandatory sentencing statutes obviate the necessity for the sentencer to exercise discretion in contravention of the principle that “justice ... requires consideration of ... the circumstances of the offense together with the character and propensities of the offender.” Id. at 304, 96 S.Ct. at 2991, 49 L.Ed.2d at 961 (quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43, 46 (1937)). This requirement of giving full consideration to mitigating factors in addition to the nature and circumstances of the crime was given increased vitality in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). In Lockett, the Supreme Court struck down the Ohio death penalty statute because it failed to allow consideration of such factors as age and familial history in mitigation. Under the Ohio statute, personal background evidence was admissible only if it substantiated the existence of any of the state's three statutorily enumerated mitigating circumstances. The Supreme Court invalidated the statute as violative of the eighth and fourteenth amendments, holding that the sentencer must “not be precluded from con sidering ... any aspect of a defendant’s character or record” proffered in mitigation of his offense. Id. at 604, 98 S.Ct. at 2964-65, 57 L.Ed.2d at 990. Thus, Lockett instructs that the sentencing body be" } ]

[ { "docid": "6178243", "title": "", "text": "file repetitious applications in the state courts, Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971); Brown v. Allen, 344 U.S. 443, 449 n.3, 73 S.Ct. 397, 403 n.3, 97 L.Ed. 469 (1953); nor does the mere possibility of success in additional proceedings bar federal habeas corpus relief, Francisco v. Gathright, 419 U.S. 59, 95 S.Ct. 257, 42 L.Ed.2d 226 (1974); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967). Similarly, in Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), the Supreme Court held that “once a federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” The Court reaffirmed the “fair opportunity” concept in Smith v. Digmon, 434 U.S. 332, 333, 98 S.Ct. 597, 598, 54 L.Ed.2d 582 (1978), by declaring that “[i]t is too obvious to merit extended discussion that whether the exhaustion requirement of 28 U.S.C. § 2254(b). has been satisfied cannot turn on whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in the petitioner’s brief in the state court....” The Court did not require the petitioner to pursue available procedures to present the question to the state court a second time. The rule of exhaustion thus requires only that States be given “the initial ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Wilwording, 404 U.S. at 250, 92 S.Ct. at 408. This includes an opportunity for review by the highest court in the state. See Brown, supra; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). B Petitioner pursued the proper state remedy and “fairly presented” his claims. A petition for a writ of mandamus in state court must be exhausted where that procedure was designed to protect the rights asserted. United States ex rel. MacBlain v. Burke, 200 F.2d 616, 618 (3d Cir. 1952); see also Brown v. Estelle, 530 F.2d 1280, 1283 (5th Cir. 1976). Under Illinois law, mandamus is clearly the appropriate procedure to compel the" } ]

[ { "docid": "11648166", "title": "", "text": "appealed this decision to the Wisconsin Supreme Court, but the court denied review. The opinion of the Wisconsin Court of Appeals clearly reveals that Weber failed to comply with Wisconsin procedure and object to his alleged denial of a jury trial, on the issue of insanity, at the trial court level. As this court noted in Farmer v. Prast, 721 F.2d 602 (7th Cir.1983): “It is fundamental law in [Wisconsin] that the defendant must object in a timely fashion in order to permit the trial court to correct any possible error at the time it happens. Having failed to do so, the defendant has waived his rights to have the error reviewed on appeal. See Maclin v. State, 92 Wis.2d 323, 330-31, 284 N.W.2d 661, 665 (1979); State v. Wolter, 85 Wis.2d 353, 373, 270 N.W.2d 230, 240 (Ct.App.1978).” 721 F.2d at 605 (quoting State v. Farmer, 105 Wis.2d 754, 315 N.W.2d 728 (Ct.App. 1981)). The record further reveals that Weber filed an appeal for his judgments of conviction in the Wisconsin Court of Appeals before he ever raised the insanity plea issue in the Milwaukee County Circuit Court through a motion for post-conviction relief. The Wisconsin Court of Appeals properly ruled that, under Wisconsin law, once Weber filed his direct appeal, the state trial court was divested of jurisdiction and could not entertain Weber’s motion for post-conviction relief in the first instance. See Hunter v. Hunter, 44 Wis.2d 618, 621, 172 N.W.2d 167, 169 (1969). Thus, the appeal record considered by the Wisconsin Court of Appeals and the Wisconsin Supreme Court contained no evidence of an objection raised by the defense counsel or Weber, either during or after the trial in the Milwaukee County Circuit Court, concerning a jury trial on the insanity plea. Furthermore, the record contained no evidence that Weber had filed any post-trial motions on the insanity plea issue, in the trial court, between the date of conviction, May 4, 1978, and the date of the original appeal on December 27, 1978. Due to Weber’s procedural defect in failing to object to the alleged denial of" }, { "docid": "11648183", "title": "", "text": "withdrawal in any manner. The record further reveals that at no time, throughout the course of the trial in Milwaukee County Circuit Court, did Weber raise an objection before the trial judge concerning the lack of a jury trial on the issue of insanity. Following the jury’s return of a guilty verdict on four counts of the nine count indictment of party to the crime of armed robbery, Weber made no mention to the court that he wished to proceed with the insanity portion of his bifurcated trial. Weber next appeared in the trial court for sentencing, and at that time the prosecutor and the defense counsel both made mention of the competency hearings that Judge McCormick had conducted before the start of trial. In fact, the prosecutor referred to the psychiatric testimony elicited at the July 29, 1977 competency hearing, where Weber was diagnosed as “malingering.” Weber was afforded a right of elocution following the remarks of the prosecutor and the defense counsel but he again failed to mention the issue of insanity or the right to a jury trial on the insanity plea. In light of the fact that defense counsel Murray, Weber, Judge Wedemeyer, and Assistant District Attorney Klinkowitz never referred to the insanity plea throughout the entire course of the trial and the sentencing hearing in Milwaukee Circuit Court, it is self-evident that the insanity plea was, in fact, withdrawn. Based upon the totality of the circumstances, including a judicial determination that Weber was competent to stand trial, Weber’s knowledge that his insanity plea had been withdrawn, and his failure to object to such withdrawal at trial or at the sentencing hearing, we hold that Weber’s plea of “not guilty by reason of mental disease or defect” was properly withdrawn. Ill We affirm the district court’s denial of petitioner’s writ of habeas corpus. . There exists no evidence in the record, petitioner's brief, or the district court opinion explaining the purpose of judicial inquiry into Weber's mental condition conducted by the County Court of Dodge County in March 1977. In any event, the court’s adjudgment that" }, { "docid": "11648164", "title": "", "text": "86-91, 97 S.Ct. at 2506-08; or contemporaneously object to a jury instruction, see Engle, 456 U.S. at 124-35, 102 S.Ct. at 1570-75, was barred from obtaining Federal habeas relief. In the instant case, Weber appealed his judgments of conviction to the Wisconsin Court of Appeals on December 27, 1978, some eight months after the judgments were entered in the Milwaukee County Circuit Court. Weber included in this appeal a claim that he was denied due process of law because he never received a jury trial on his plea of “not guilty by reason of mental disease or defect.” While this appeal was pending before the Wisconsin Court of Appeals, the petitioner sought post-conviction relief in the Milwaukee County Circuit Court with the filing of a motion for new trial, alleging that waiver of his preliminary hearing was improper, the pre-arraignment lineup was unconstitutional, the jury instructions were improper, and he was denied a jury trial on the issue of insanity. In addition, the petitioner filed a motion for modification of sentence. The trial judge found no error in the evidentiary and procedural aspects of the trial nor in the post-trial sentencing and denied the petitioner’s motions for a new trial and modification of his sentence. The petitioner, in turn, appealed the denial of these motions to the Wisconsin Court of Appeals, thus placing before the appellate court, Weber’s original appeal of his convictions, filed on December 27, 1978, and the trial judge’s denial of post-conviction relief. The Wisconsin Court of Appeals dismissed Weber’s appeal on the denial of post-conviction relief, ruling that the Milwaukee County Circuit Court was divested of jurisdiction once Weber filed his original appeal on December 27, 1978, and thus, the original trial court could not rule on petitioner’s motions for a new trial and modification of sentence. However, the Wisconsin Court of Appeals considered Weber’s original appeal, ruling in pertinent part that: “[N]o objection was recorded concerning the absence of a jury determination of [the insanity] issue. Since the issue was not raised in the trial level, this court will not consider it on appeal.” Weber" }, { "docid": "11648175", "title": "", "text": "in Weber’s case. Murray testified that the first line of defense in his trial strategy was to attack the credibility of the State’s witnesses. Murray recalled that after he had discussed the insanity plea issue with Weber, he (Murray) informed Klinkowitz that the defense would not pursue the plea of “not guilty by reason of mental disease or defect.” Weber, on the other hand, testified that he and Murray discussed the insanity plea in the court “bullpen” before trial and that Weber had instructed his counsel to go forward with the insanity portion of the trial. According to Weber, he was then informed by Murray that the prosecution was prepared to present psychiatric testimony that Weber was mentally competent at the time of the commission of the alleged crimes. Weber claimed that despite this evidence, he still wanted Murray to pursue the insanity plea. Weber admitted, however, that once he arrived in the courtroom for the start of trial, and throughout the course of the trial, he never said anything to Murray about wanting to pursue the insanity plea. Weber’s mother added that after the jury announced its verdict on the plea of “not guilty,” she was permitted to visit with her son. During this visit, she remembers Weber asking Murray when the second portion of his trial was going to begin, to which Murray “didn’t give a direct answer.” It is undisputed that the better practice, when entering or withdrawing any plea, is to make the entry or withdrawal a part of the trial court record. Due to the failure of the parties in the instant case to record the withdrawal of Weber’s insanity plea and thereby make a complete record, the district court conducted a post-trial evidentiary hearing on the withdrawal issue. Based upon the testimony elicited at the evidentiary hearing, and a review of the trial court record, the district court’s finding that Weber’s counsel withdrew the plea of “not guilty by reason of mental disease or defect” in open court, before Weber and the presiding judge, is not clearly erroneous. The trial court judge, the prosecutor," }, { "docid": "11648172", "title": "", "text": "fact, he didn’t. And with that, Mr. Klinkowitz didn’t take the opportunity of calling the doctor in Madison.” The prosecutor, Assistant District Attorney Richard Klinkowitz, testified that he, defense counsel Murray, and Weber had a pre-trial conversation, before the impaneling of the jury, in Judge Wedemeyer’s courtroom. During this conversation, Klinkowitz inquired of Murray if the defendant was going to proceed with his insanity defense. According to Klinkowitz, he had supplied defense counsel Murray with copies of the psychiatrists’ reports that the State intended to use at trial, but Murray, in return, had not supplied the prosecution with any psychiatric reports concerning Weber. The purpose of Klinkowitz’s inquiry was to determine if it would be necessary for the State to call its psychiatrist, Dr. Fosdale, who was “committed,” according to his report on file with the court, to testify that Weber was not suffering from a mental disease or defect at the time of the commission of the alleged crimes. Dr. Fosdale requested the date and time of his court appearance in order that he might arrange his patient schedule accordingly. As defense counsel Murray discussed the insanity issue with Weber, Judge Wedemeyer entered the courtroom and ascended the bench. In response to Klinkowitz’s question of whether or not Weber would pursue the insanity defense, Murray approached the podium and stated in the presence of Judge Wedemeyer and Weber, “[W]e do not intend to pursue that defense.” According to Klinkowitz, there was absolutely no indication that Weber, who was standing beside the podium, disagreed with the decision not to proceed with the insanity plea or objected to the decision in any manner. Following this conversation, Klinkowitz phoned the State’s psychiatrist, Dr. Fosdale, and informed him that the insanity plea had been withdrawn and that it would not be necessary for him to appear in court. Detective Cole of the Milwaukee Police Department added that he was present during the pre-trial discussion between Klinkowitz and Murray, when Murray informed the trial judge that Weber was not pursuing his insanity defense.' Defense counsel, John Murray, testified that based upon the psychiatric reports" }, { "docid": "11648156", "title": "", "text": "examination. Weber was returned to court for a competency hearing on March 30, 1977, and based upon the testimony of the examining physicians, Judge McCormick concluded that more data was required before Weber’s competency to stand trial could be determined. The court again committed Weber to the Central State Hospital to allow the psychiatric staff to perform more extensive testing. Some four months later, on July 29, 1977, Weber was returned to court for another competency hearing and based upon the testimony of Dr. Arndt that Weber was “having symptoms for a need, ... to avoid something, and this is referring to a faking or malingering,” and the testimony of Dr. Fosdale that Weber was “not mentally ill, ... the behavior he demonstrates is simulation,” Judge McCormick ruled that Weber was competent to stand trial. On October 11, 1977, Weber appeared in the Milwaukee County Circuit Court with a second attorney who requested that a third battery of psychiatric testing be performed in order to determine his client’s competency to stand trial. The court granted the motion and Weber underwent further psychiatric testing. Weber returned to court for a third competency hearing on October 18, 1977, and following psychiatric testimony, Judge McCormick again found Weber competent to stand trial. The case was subsequently reassigned to Judge Wedemeyer who presided as the trial judge in the Milwaukee County Circuit Court. On May 4, 1978, the jury found Weber guilty on only four counts of the nine count indictment of party to the crime of armed robbery in violation of Wis.Stat. §§ 943.-32(l)(b), (2) and 939.05. A review of the trial record reveals that following the jury’s return of its verdict on the issue of guilt, there was no mention by the defense counsel, Weber, the prosecutor, or the trial judge about an insanity plea or a jury trial on the issue of insanity. The record further reveals that no evidence was introduced on the issue of Weber’s insanity at trial, no objections were raised by the defense counsel or Weber concerning the lack of a jury trial on the issue of" }, { "docid": "11648176", "title": "", "text": "pursue the insanity plea. Weber’s mother added that after the jury announced its verdict on the plea of “not guilty,” she was permitted to visit with her son. During this visit, she remembers Weber asking Murray when the second portion of his trial was going to begin, to which Murray “didn’t give a direct answer.” It is undisputed that the better practice, when entering or withdrawing any plea, is to make the entry or withdrawal a part of the trial court record. Due to the failure of the parties in the instant case to record the withdrawal of Weber’s insanity plea and thereby make a complete record, the district court conducted a post-trial evidentiary hearing on the withdrawal issue. Based upon the testimony elicited at the evidentiary hearing, and a review of the trial court record, the district court’s finding that Weber’s counsel withdrew the plea of “not guilty by reason of mental disease or defect” in open court, before Weber and the presiding judge, is not clearly erroneous. The trial court judge, the prosecutor, and Detective Cole all agree that before trial, Weber’s counsel withdrew the insanity plea in open court before the presiding judge. The uncontradicted testimony of Richard Klinkowitz, the prosecutor, supports the district court’s finding that Weber was present in the courtroom when the insanity plea was withdrawn. Further, the petitioner never denied his presence in the courtroom at the time of the pre-trial withdrawal of his insanity plea, rather he equivocated, claiming a lack of recall with regard to any proceedings that occurred in the courtroom before the start of trial. Accordingly, the district court’s finding that Weber’s plea of insanity was withdrawn is not clearly erroneous and the only remaining issue is whether the manner in which Weber’s counsel withdrew the plea was proper. The petitioner, not pro se but through appellate counsel, argues that even if Weber’s trial counsel did withdraw the insanity plea, such withdrawal was ineffective because it was not intelligently and voluntarily agreed to by Weber. Relying upon the United States Supreme Court’s holding in Boykin v. Alabama, 395 U.S." }, { "docid": "11648159", "title": "", "text": "not consider it on appeal.” Weber appealed this decision to the Wisconsin Supreme Court but the court denied review. On October 13, 1981, Weber filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin and the case was assigned to the Honorable Myron Gordon. Weber claimed, inter alia, that “his right to a jury trial was violated because his plea of not guilty by reason of mental disease or defect was never presented to the jury.” Weber v. Israel, 537 F.Supp. 1182, 1183 (E.D.Wis.1982). The district court ruled that: “In my opinion, the petitioner’s failure to pursue his plea of mental disease was properly deemed a waiver. Mr. Weber did nothing to demonstrate a continued interest in that plea during the year and a half which transpired between the time he ‘apparently’ entered the plea and the trial itself. Although represented by counsel during that period, there was no effort made by the defense to persist in the defense of mental disease; no objection was made to the format of the actual trial. •k ¡k ¡k sje :k * Accordingly, I reject his contention that his random reference to insanity a year and a half before the trial entitles him to the granting of a writ of habeas corpus.” Id. at 1183-84. Following the district court’s decision, Weber submitted a Motion for Reconsideration based upon his contentions that in March 1977, he had been judged mentally ill by the County Court of Dodge County, Wisconsin, and that at his criminal trial in May 1978, Weber had instructed his attorney to pursue the insanity defense. In response to Weber’s contentions, the district court conducted an evidentiary hearing on whether Weber had, in fact, waived his plea of “not guilty by reason of mental disease or defect.\" At the evidentiary hearing, the district court heard testimony from Judge Wedemeyer, the presiding trial judge; Assistant District Attorney Richard Klinkowitz, the trial prosecutor; John Murray, Weber’s trial counsel; Detective Cole, a member of the Milwaukee Police Department; the petitioner; and the petitioner’s mother, Violet" }, { "docid": "11648165", "title": "", "text": "no error in the evidentiary and procedural aspects of the trial nor in the post-trial sentencing and denied the petitioner’s motions for a new trial and modification of his sentence. The petitioner, in turn, appealed the denial of these motions to the Wisconsin Court of Appeals, thus placing before the appellate court, Weber’s original appeal of his convictions, filed on December 27, 1978, and the trial judge’s denial of post-conviction relief. The Wisconsin Court of Appeals dismissed Weber’s appeal on the denial of post-conviction relief, ruling that the Milwaukee County Circuit Court was divested of jurisdiction once Weber filed his original appeal on December 27, 1978, and thus, the original trial court could not rule on petitioner’s motions for a new trial and modification of sentence. However, the Wisconsin Court of Appeals considered Weber’s original appeal, ruling in pertinent part that: “[N]o objection was recorded concerning the absence of a jury determination of [the insanity] issue. Since the issue was not raised in the trial level, this court will not consider it on appeal.” Weber appealed this decision to the Wisconsin Supreme Court, but the court denied review. The opinion of the Wisconsin Court of Appeals clearly reveals that Weber failed to comply with Wisconsin procedure and object to his alleged denial of a jury trial, on the issue of insanity, at the trial court level. As this court noted in Farmer v. Prast, 721 F.2d 602 (7th Cir.1983): “It is fundamental law in [Wisconsin] that the defendant must object in a timely fashion in order to permit the trial court to correct any possible error at the time it happens. Having failed to do so, the defendant has waived his rights to have the error reviewed on appeal. See Maclin v. State, 92 Wis.2d 323, 330-31, 284 N.W.2d 661, 665 (1979); State v. Wolter, 85 Wis.2d 353, 373, 270 N.W.2d 230, 240 (Ct.App.1978).” 721 F.2d at 605 (quoting State v. Farmer, 105 Wis.2d 754, 315 N.W.2d 728 (Ct.App. 1981)). The record further reveals that Weber filed an appeal for his judgments of conviction in the Wisconsin Court of Appeals" }, { "docid": "11648184", "title": "", "text": "the right to a jury trial on the insanity plea. In light of the fact that defense counsel Murray, Weber, Judge Wedemeyer, and Assistant District Attorney Klinkowitz never referred to the insanity plea throughout the entire course of the trial and the sentencing hearing in Milwaukee Circuit Court, it is self-evident that the insanity plea was, in fact, withdrawn. Based upon the totality of the circumstances, including a judicial determination that Weber was competent to stand trial, Weber’s knowledge that his insanity plea had been withdrawn, and his failure to object to such withdrawal at trial or at the sentencing hearing, we hold that Weber’s plea of “not guilty by reason of mental disease or defect” was properly withdrawn. Ill We affirm the district court’s denial of petitioner’s writ of habeas corpus. . There exists no evidence in the record, petitioner's brief, or the district court opinion explaining the purpose of judicial inquiry into Weber's mental condition conducted by the County Court of Dodge County in March 1977. In any event, the court’s adjudgment that Weber was mentally ill in March 1977, is an issue separate and distinct from the issues of Weber’s competency to stand trial in May 1978, and Weber’s mental responsibility for crimes committed before December 1976. . Upon our independent review of the trial record, we find no objection, raised by defense counsel or Weber, concerning the lack of a jury trial on the issue of insanity. . The respondent also argued that if the case were remanded to the Milwaukee County Circuit Court, Weber could still file a motion for post-conviction relief, and thus Weber has failed to exhaust his state court remedies. The record reveals, however, that Weber has “fairly presented” his federal claim on the insanity plea issue to the Wisconsin state courts, thereby satisfying the exhaustion requirement. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); United States ex rel. Nance v. Fairman, 707 F.2d 936, 940 (7th Cir.1983); Toney v. Franzen, 687 F.2d 1016, 1021-22 (7th Cir.1982). . The record indicates that due to" }, { "docid": "11648158", "title": "", "text": "insanity, and neither the defense counsel nor Weber objected when the trial judge dismissed the jurors following the return of their verdict on the issue of guilt. Similarly, no objections were raised by the defense counsel or Weber when the trial judge, without hearing any evidence on the issue of insanity, entered judgments of conviction and sentenced Weber to a sixty-four year term of imprisonment. Weber, rather than seeking post-conviction relief in the trial court, appealed his judgments of conviction to the Wisconsin Court of Appeals claiming, inter alia, that he was denied due process of law because he did not receive a jury trial on the issue of his mental capacity after entering his plea of “not guilty by reason of mental disease or defect.” The Wisconsin Court of Appeals, after reviewing the trial court record, affirmed Weber’s conviction and ruled, in an unpublished order, that: “[N]o objection was recorded concerning the absence of a jury determination of [the insanity] issue. Since the issue was not raised in the trial level, this court will not consider it on appeal.” Weber appealed this decision to the Wisconsin Supreme Court but the court denied review. On October 13, 1981, Weber filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin and the case was assigned to the Honorable Myron Gordon. Weber claimed, inter alia, that “his right to a jury trial was violated because his plea of not guilty by reason of mental disease or defect was never presented to the jury.” Weber v. Israel, 537 F.Supp. 1182, 1183 (E.D.Wis.1982). The district court ruled that: “In my opinion, the petitioner’s failure to pursue his plea of mental disease was properly deemed a waiver. Mr. Weber did nothing to demonstrate a continued interest in that plea during the year and a half which transpired between the time he ‘apparently’ entered the plea and the trial itself. Although represented by counsel during that period, there was no effort made by the defense to persist in the defense of mental disease; no objection was" }, { "docid": "11648177", "title": "", "text": "and Detective Cole all agree that before trial, Weber’s counsel withdrew the insanity plea in open court before the presiding judge. The uncontradicted testimony of Richard Klinkowitz, the prosecutor, supports the district court’s finding that Weber was present in the courtroom when the insanity plea was withdrawn. Further, the petitioner never denied his presence in the courtroom at the time of the pre-trial withdrawal of his insanity plea, rather he equivocated, claiming a lack of recall with regard to any proceedings that occurred in the courtroom before the start of trial. Accordingly, the district court’s finding that Weber’s plea of insanity was withdrawn is not clearly erroneous and the only remaining issue is whether the manner in which Weber’s counsel withdrew the plea was proper. The petitioner, not pro se but through appellate counsel, argues that even if Weber’s trial counsel did withdraw the insanity plea, such withdrawal was ineffective because it was not intelligently and voluntarily agreed to by Weber. Relying upon the United States Supreme Court’s holding in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (“Boykin”), the petitioner contends that withdrawal of the insanity plea denied him his right to a jury trial on the issue of insanity, and thus required the trial judge to determine if the withdrawal was intelligent and voluntary on the petitioner’s behalf. The petitioner claims that in the instant case the trial judge did not make this determination, and therefore the withdrawal was ineffective. In Boykin, the Court held that it was reversible error for the “trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.” 395 U.S. at 242, 89 S.Ct. at 1711. The Court reasoned that “a plea of guilty ... is a conviction,” id,., whereby the defendant waives his “privilege against compulsory self-incrimination ... right to trial by jury ... and right to confront [his] accusers.” Id. at 243, 89 S.Ct. at 1712. The facts in the instant case are markedly distinguishable from those in Boykin. Weber,.through counsel, entered pleas of “not guilty” and “not guilty by" }, { "docid": "11648173", "title": "", "text": "might arrange his patient schedule accordingly. As defense counsel Murray discussed the insanity issue with Weber, Judge Wedemeyer entered the courtroom and ascended the bench. In response to Klinkowitz’s question of whether or not Weber would pursue the insanity defense, Murray approached the podium and stated in the presence of Judge Wedemeyer and Weber, “[W]e do not intend to pursue that defense.” According to Klinkowitz, there was absolutely no indication that Weber, who was standing beside the podium, disagreed with the decision not to proceed with the insanity plea or objected to the decision in any manner. Following this conversation, Klinkowitz phoned the State’s psychiatrist, Dr. Fosdale, and informed him that the insanity plea had been withdrawn and that it would not be necessary for him to appear in court. Detective Cole of the Milwaukee Police Department added that he was present during the pre-trial discussion between Klinkowitz and Murray, when Murray informed the trial judge that Weber was not pursuing his insanity defense.' Defense counsel, John Murray, testified that based upon the psychiatric reports that he had received from the District Attorney’s office, the transcript of the July 29, 1977 competency hearing before Judge McCormick, the report of a psychiatrist he had personally chosen to examine Weber, and discussions he had with his associates and Weber’s previous counsel, he was convinced that he “could not sustain ... the burden of proof” on the insanity plea. Murray recalled that the psychiatric reports he received from the District Attorney’s office referred to Weber’s behavior as “malingering” or faking. In addition, Murray testified that under Wisconsin law the same jurors hear both portions of the bifurcated trial and thus can be voir dired concerning the guilt issue and the insanity issue. Murray stated that if jurors “believe they are going to be hearing a defense of mental illness, I think that interferes with my getting a good shot on the merits.” Accordingly, Murray was of the opinion that the plea of “not guilty by reason of mental disease or defect” was self-defeating and would have interfered with a defense on the merits" }, { "docid": "11648185", "title": "", "text": "Weber was mentally ill in March 1977, is an issue separate and distinct from the issues of Weber’s competency to stand trial in May 1978, and Weber’s mental responsibility for crimes committed before December 1976. . Upon our independent review of the trial record, we find no objection, raised by defense counsel or Weber, concerning the lack of a jury trial on the issue of insanity. . The respondent also argued that if the case were remanded to the Milwaukee County Circuit Court, Weber could still file a motion for post-conviction relief, and thus Weber has failed to exhaust his state court remedies. The record reveals, however, that Weber has “fairly presented” his federal claim on the insanity plea issue to the Wisconsin state courts, thereby satisfying the exhaustion requirement. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); United States ex rel. Nance v. Fairman, 707 F.2d 936, 940 (7th Cir.1983); Toney v. Franzen, 687 F.2d 1016, 1021-22 (7th Cir.1982). . The record indicates that due to the lime constraints at the evidentiary hearing the district court did not hear the testimony of Detective Cole but rather accepted the stipulated testimony, agreed to by counsel for the petitioner and the respondent, that Detective Cole was, in fact, present in the courtroom when defense counsel Murray informed the trial judge that Weber was not pursuing his insanity defense. . The case of Collins v. Israel, 538 F.Supp. 1211 (E.D.Wis.1982) (\"Collins\"), is directly on point with regard to the failure of the parties in Milwaukee County Circuit Court to record the withdrawal of an insanity pica. In Collins, the petitioner had been convicted in Milwaukee County Circuit Court of first degree murder. In his petition for writ of habeas corpus, the petitioner claimed that his trial counsel had withdrawn the insanity plea off the record and without the petitioner’s consent. The United States District Court for the Eastern District of Wisconsin, in considering the petitioner’s claim, stated: \"All parlies, including the trial judge at the postconviction hearing, have conceded that the withdrawal of the" }, { "docid": "11648160", "title": "", "text": "made to the format of the actual trial. •k ¡k ¡k sje :k * Accordingly, I reject his contention that his random reference to insanity a year and a half before the trial entitles him to the granting of a writ of habeas corpus.” Id. at 1183-84. Following the district court’s decision, Weber submitted a Motion for Reconsideration based upon his contentions that in March 1977, he had been judged mentally ill by the County Court of Dodge County, Wisconsin, and that at his criminal trial in May 1978, Weber had instructed his attorney to pursue the insanity defense. In response to Weber’s contentions, the district court conducted an evidentiary hearing on whether Weber had, in fact, waived his plea of “not guilty by reason of mental disease or defect.\" At the evidentiary hearing, the district court heard testimony from Judge Wedemeyer, the presiding trial judge; Assistant District Attorney Richard Klinkowitz, the trial prosecutor; John Murray, Weber’s trial counsel; Detective Cole, a member of the Milwaukee Police Department; the petitioner; and the petitioner’s mother, Violet Weber. Based upon the tes timony elicited at this evidentiary hearing, Judge Gordon ruled that: “The statements of [Judge Wedemeyer, Richard Klinkowitz, and Detective Cole] are singularly persuasive; it convinces me that the plea of mental defect was actually withdrawn by Mr. Weber’s counsel. Although there is a cloud on this matter because the withdrawal was not reflected in the reporter’s notes, I am satisfied that there was a withdrawal of the plea, that it occurred in open court in the presence of both Mr. Weber and the presiding judge, and that it was not recorded because the reporter had not yet arrived in the courtroom at the time of the discussion.” Accordingly, the court denied Weber’s Motion for Reconsideration. The issue on appeal is whether the petitioner’s plea of “not guilty by reason of mental disease or defect” was properly withdrawn. II Before reviewing the district court’s finding on the issue of withdrawal, we must initially address the threshold issue of whether the doctrine of waiver bars Weber from obtaining Federal habeas review on" }, { "docid": "11648181", "title": "", "text": "an insanity defense like any other defense, when an unsophisticated client fails to understand the wisdom of that decision. For example, an insanity defense implies to many jurors an admission that defendant committed the act charged____” 3 Ohio App.3d at 118, 444 N.E.2d at 90. Additionally, according to the court in White v. State, 17 Md.App. 58, 299 A.2d 873 (1973), “a plea of insanity is no more than the assertion of an affirmative defense____ Like any defense, the question of whether insanity should be raised remains a matter of trial strategy to be determined by counsel after consultation with his client.” 17 Md.App. at 61-62, 299 A.2d at 875. Under Wisconsin law, “mental disease or defect” is an affirmative defense, see Wis.Stat. § 971.15(3) (1981-82), and withdrawal of a “not guilty by reason of mental disease or defect” plea is considered a matter of trial strategy. See, e.g., State v. Felton, 110 Wis.2d 485, 516, 329 N.W.2d 161, 175 (Wis. 1983). The testimony at the evidentiary hearing, found credible by the district court, reveals that defense counsel consulted with Weber before withdrawing the insanity plea for tactical reasons. Thus, Weber’s defense counsel properly exercised his tactical judgment and trial strategy in withdrawing the plea of “not guilty by reason of mental disease or defect.” Moreover, at no time throughout this habeas corpus proceeding has Weber complained of or alleged ineffective assistance of counsel in entering and subsequently withdrawing the insanity plea. Finally, based upon the uncontradicted testimony of Assistant District Attorney Richard Klinkowitz, we agree with the district court that Weber was present in the courtroom when defense counsel informed the trial judge that the plea of “not guilty by reason of mental disease or defect” was being withdrawn. Due to Weber’s presence in the courtroom at the time that his defense counsel withdrew the insanity plea, Weber had knowledge of such withdrawal. Accord Collins v. Israel, 538 F.Supp. at 1215-16. According to the testimony elicited at the evidentiary hearing, Weber gave absolutely no indication that he disagreed with the withdrawal of the insanity plea or objected to the" }, { "docid": "11648167", "title": "", "text": "before he ever raised the insanity plea issue in the Milwaukee County Circuit Court through a motion for post-conviction relief. The Wisconsin Court of Appeals properly ruled that, under Wisconsin law, once Weber filed his direct appeal, the state trial court was divested of jurisdiction and could not entertain Weber’s motion for post-conviction relief in the first instance. See Hunter v. Hunter, 44 Wis.2d 618, 621, 172 N.W.2d 167, 169 (1969). Thus, the appeal record considered by the Wisconsin Court of Appeals and the Wisconsin Supreme Court contained no evidence of an objection raised by the defense counsel or Weber, either during or after the trial in the Milwaukee County Circuit Court, concerning a jury trial on the insanity plea. Furthermore, the record contained no evidence that Weber had filed any post-trial motions on the insanity plea issue, in the trial court, between the date of conviction, May 4, 1978, and the date of the original appeal on December 27, 1978. Due to Weber’s procedural defect in failing to object to the alleged denial of a jury trial on the issue of insanity at the trial court level, the Wisconsin state courts declined to review the merits of Weber’s insanity plea issue. In his Federal habeas petition, Weber has presented the court with no cause for, nor actual prejudice arising from, his failure to raise the insanity plea issue at the trial court level. As the United States Supreme Court has stated: “While the nature of a constitutional claim may affect the calculation of cause and actual prejudice, it does not alter the need to make the threshold showing. We reaffirm, therefore, that any prisoner bringing a constitutional claim to the federal courthouse after a state procedural default must demonstrate cause and actual prejudice before obtaining relief.” Engle, 456 U.S. at 129, 102 S.Ct. at 1572. Without a showing of cause and actual prejudice by Weber, this court is barred, by the principles of federalism, from reviewing a Federal habeas claim, that has not been reviewed by the state courts due to a procedural defect. Accord Engle, 456 U.S. at" }, { "docid": "11648157", "title": "", "text": "the motion and Weber underwent further psychiatric testing. Weber returned to court for a third competency hearing on October 18, 1977, and following psychiatric testimony, Judge McCormick again found Weber competent to stand trial. The case was subsequently reassigned to Judge Wedemeyer who presided as the trial judge in the Milwaukee County Circuit Court. On May 4, 1978, the jury found Weber guilty on only four counts of the nine count indictment of party to the crime of armed robbery in violation of Wis.Stat. §§ 943.-32(l)(b), (2) and 939.05. A review of the trial record reveals that following the jury’s return of its verdict on the issue of guilt, there was no mention by the defense counsel, Weber, the prosecutor, or the trial judge about an insanity plea or a jury trial on the issue of insanity. The record further reveals that no evidence was introduced on the issue of Weber’s insanity at trial, no objections were raised by the defense counsel or Weber concerning the lack of a jury trial on the issue of insanity, and neither the defense counsel nor Weber objected when the trial judge dismissed the jurors following the return of their verdict on the issue of guilt. Similarly, no objections were raised by the defense counsel or Weber when the trial judge, without hearing any evidence on the issue of insanity, entered judgments of conviction and sentenced Weber to a sixty-four year term of imprisonment. Weber, rather than seeking post-conviction relief in the trial court, appealed his judgments of conviction to the Wisconsin Court of Appeals claiming, inter alia, that he was denied due process of law because he did not receive a jury trial on the issue of his mental capacity after entering his plea of “not guilty by reason of mental disease or defect.” The Wisconsin Court of Appeals, after reviewing the trial court record, affirmed Weber’s conviction and ruled, in an unpublished order, that: “[N]o objection was recorded concerning the absence of a jury determination of [the insanity] issue. Since the issue was not raised in the trial level, this court will" }, { "docid": "11648186", "title": "", "text": "the lime constraints at the evidentiary hearing the district court did not hear the testimony of Detective Cole but rather accepted the stipulated testimony, agreed to by counsel for the petitioner and the respondent, that Detective Cole was, in fact, present in the courtroom when defense counsel Murray informed the trial judge that Weber was not pursuing his insanity defense. . The case of Collins v. Israel, 538 F.Supp. 1211 (E.D.Wis.1982) (\"Collins\"), is directly on point with regard to the failure of the parties in Milwaukee County Circuit Court to record the withdrawal of an insanity pica. In Collins, the petitioner had been convicted in Milwaukee County Circuit Court of first degree murder. In his petition for writ of habeas corpus, the petitioner claimed that his trial counsel had withdrawn the insanity plea off the record and without the petitioner’s consent. The United States District Court for the Eastern District of Wisconsin, in considering the petitioner’s claim, stated: \"All parlies, including the trial judge at the postconviction hearing, have conceded that the withdrawal of the [\"not guilty by reason of mental disease or defect’’] pica should have been made on the record and that the petitioner should have been questioned to ensure that he understood the proceeding. It would be an elevation of form over substance, however, to vacate the judgment of conviction because the appropriate procedure was not followed, where the evidence subsequently presented overwhelmingly supported the court’s finding that the plea was in fact abandoned prior to trial with the full knowledge and consent of the petitioner.” 538 F.Supp. at 1215. . The foregoing analysis is consistent with the reasoning of the California Court of Appeal in People v. Redmond, 16 Cal.App.3d 931, 94 Cal.Rptr. 543 (1971) (\"Redmond\"), where the defendant withdrew his insanity plea after being found guilty of a lesser included offense of the crime charged. The court held that when a defendant withdraws an insanity plea, the trial court must determine the defendant's sanity at that time, and if sane, \"a scries of questions should be propounded to such defendant and to his counsel and" }, { "docid": "11648182", "title": "", "text": "that defense counsel consulted with Weber before withdrawing the insanity plea for tactical reasons. Thus, Weber’s defense counsel properly exercised his tactical judgment and trial strategy in withdrawing the plea of “not guilty by reason of mental disease or defect.” Moreover, at no time throughout this habeas corpus proceeding has Weber complained of or alleged ineffective assistance of counsel in entering and subsequently withdrawing the insanity plea. Finally, based upon the uncontradicted testimony of Assistant District Attorney Richard Klinkowitz, we agree with the district court that Weber was present in the courtroom when defense counsel informed the trial judge that the plea of “not guilty by reason of mental disease or defect” was being withdrawn. Due to Weber’s presence in the courtroom at the time that his defense counsel withdrew the insanity plea, Weber had knowledge of such withdrawal. Accord Collins v. Israel, 538 F.Supp. at 1215-16. According to the testimony elicited at the evidentiary hearing, Weber gave absolutely no indication that he disagreed with the withdrawal of the insanity plea or objected to the withdrawal in any manner. The record further reveals that at no time, throughout the course of the trial in Milwaukee County Circuit Court, did Weber raise an objection before the trial judge concerning the lack of a jury trial on the issue of insanity. Following the jury’s return of a guilty verdict on four counts of the nine count indictment of party to the crime of armed robbery, Weber made no mention to the court that he wished to proceed with the insanity portion of his bifurcated trial. Weber next appeared in the trial court for sentencing, and at that time the prosecutor and the defense counsel both made mention of the competency hearings that Judge McCormick had conducted before the start of trial. In fact, the prosecutor referred to the psychiatric testimony elicited at the July 29, 1977 competency hearing, where Weber was diagnosed as “malingering.” Weber was afforded a right of elocution following the remarks of the prosecutor and the defense counsel but he again failed to mention the issue of insanity or" } ]